law-choice-of-law-Texas-law-applies-by-default | no request for judicial notice of foreign law | TRE
In its reply brief, Methodist also argues for the first time that the Deductible Agreement contains a New York
choice-of-law clause but Zurich did not prove entitlement to summary judgment under New York law on the
breach-of-contract and negligence actions. We may not consider an issue raised for the first time in a reply
brief. See Gray v. Woodville Health Care Ctr., 225 S.W.3d 613, 620 (Tex. App.- El Paso 2006, pet. denied);
Howell v. Tex. Workers' Comp. Com'n, 143 S.W.3d 416, 439 (Tex. App.- Austin 2004, pet. denied).
Additionally, there is no indication Methodist requested the trial court to apply New York law. Accordingly,
we review whether Zurich established entitlement to summary judgment under Texas law. See Tex. R. Evid.
202; Burlington N. and Santa Fe Ry. Co. v. Gunderson, Inc., 235 S.W.3d 287, 290 (Tex. App.- Fort Worth
2007, pet. withdrawn); Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 769 (Tex. App.- Corpus Christi
1999, pet. denied).
The Methodist Hospital v. Zurich American Inc. Co. (Tex. App. - Houston [14th Dist.] Jul. 7, 2009) (Seymore)
(INSURANCE LITIGATION: insured's suits against worker's compensation carrier alleging wrongful payment
of noncompensable injury claims within the deductible)(insurer's duty of good faith and fair dealings,
negligent claims handling, express warranty claim, breach of warranty - elements, conclusory affidavit)
AFFIRMED: Opinion by Justice Seymore
Before Justices Frost, Seymore and Guzman
14-07-00663-CV The Methodist Hospital v. Zurich American Insurance Company, Tamera McKinney and
Mary Vu
Appeal from 280th District Court of Harris County
CONCURRING: Concurring Opinion by Justice Frost (higlighting applicable binding Supreme Court
precedent)