Petitioners Reply Brief on the Merits

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Petitioners Reply Brief on the Merits Powered By Docstoc
					CAUSE NO. 08-0223
       IN THE SUPREME COURT OF TEXAS


  TIME WARNER ENTERTAINMENT COMPANY, L.P.,
                  Petitioner

                           v.

   OHIO CASUALTY INSURANCE COMPANY AND
    WEST AMERICAN INSURANCE COMPANY,
                 Respondents


        On Appeal from the Court of Appeals for
       the Fifth Judicial District of Texas—Dallas
               Cause No. 05-06-01437-CV


   PETITIONER’S REPLY BRIEF ON THE MERITS


                  Lee H. Shidlofsky
              Texas State Bar: 24002937
                  Douglas P. Skelley
            Texas State Bar No. 24056335
               VISSER SHIDLOFSKY LLP
          7200 North Mopac Expy., Suite 430
                 Austin, Texas 78731
                (512) 795-0613 (direct)
                 (866) 232-8709 (fax)

         ATTORNEYS FOR PETITIONER
  TIME WARNER ENTERTAINMENT COMPANY, L.P.
                    IDENTITY OF PARTIES AND COUNSEL

Petitioner:                                   Attorneys:

Time Warner Entertainment Company, L.P.       Lee H. Shidlofsky
                                              Douglas P. Skelley
                                              VISSER SHIDLOFSKY L.L.P.
                                              7200 North Mopac Expy., Suite 430
                                              Austin, Texas 78731

                                              Steven E. Kennedy
                                              Thomas W. Craddock
                                              MCGUIRE, CRADDOCK & STROTHER, P.C.
                                              3550 Lincoln Plaza
                                              500 North Akard Street
                                              Dallas, Texas 75201

Respondents:                                  Attorneys:

Ohio Casualty Insurance Company               R. Brent Cooper
                                              Michelle E. Robberson
                                              COOPER & SCULLY, P.C.
                                              900 Jackson Street, Suite 100
                                              Dallas, Texas 75202




                                          i
                                             TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................i
INTRODUCTION..........................................................................................................2
ARGUMENTS & AUTHORITIES ...............................................................................2
    A.        The Plain Language of the Insurance Policies Supports Time
              Warner Cable’s Position................................................................................2
    B.        Texas and Non-Texas Case Law Support Time Warner Cable’s
              Position. ..........................................................................................................6
PRAYER ...................................................................................................................... 10
CERTIFICATE OF SERVICE ................................................................................... 11




                                                               ii
                                          TABLE OF AUTHORITIES

Cases
Continental Oil Co. v. Bonanza Corp.,
  706 F.2d 1365 (5th Cir. 1983)................................................................................. 7, 8
Don’s Building Supply, Inc. v. OneBeacon Ins. Co.,
  267 S.W.3d 20 (Tex. 2008)....................................................................................... 10
Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc.,
   256 S.W.3d 660 (Tex. 2008).......................................................................................9
Hathaway Development Company, Inc. v. Illinois Union Ins. Co.,
   274 F. App’x 787 (11th Cir. Apr. 18, 2008)................................................................8
Hernandez v. Gulf Group Lloyds,
   875 S.W.2d 691 (Tex. 1994).......................................................................................5
Lennar Corp. v. Great American Insurance Co.,
   200 S.W.3d 651 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) ................... 7, 8
Lubbock County Hosp. Dist. v. Nat’l Union Fire Ins. Co.,
   143 F.3d 239 (5th Cir. 1998).......................................................................................2
Mid-Continent Cas. Co. v. JHP Development, Inc.,
   2009 WL 189886 (5th Cir. Jan. 28, 2009)...................................................................9
Nat’l Union Fire Ins. Co. v. CBI Indus.,
   907 S.W.2d 517 (Tex. 1995).......................................................................................2
PAJ, Inc. v. Hanover Ins. Co.,
  243 S.W.3d 630 (Tex. 2008).......................................................................................5
Potomac Insurance of Illinois v. Huang,
   2002 WL 418008 (D. Kan. Mar. 1, 2002) ...................................................................8
Puckett v. U.S. Fire Ins. Co.,
   678 S.W.2d 936 (Tex. 1984)................................................................................... 6, 7
S. County Mut. Ins. Co. v. Ochoa,
    19 S.W.3d 452 (Tex. App.—Corpus Christi 2000, no pet.) .........................................4
State Farm Fire & Cas. Co. v. Gandy,
   925 S.W.2d 696 (Tex. 1996).......................................................................................9
Wilcox v. Am. Home Assurance Co.,
   900 F. Supp. 850 (S.D. Tex. 1995) .............................................................................7
Statutes
Tex. R. App. P. 53.2(f)................................................................................................. 5, 9



                                                             iii
Treatises
DONALD S. MALECKI & ARTHUR L. FLITNER, COMMERCIAL GENERAL LIABILITY 153
  (7th ed. 2001) .............................................................................................................4
Other Authorities
Christopher “Kipper” Burke, Construction Defects and the Insuring Agreement in the
   Commercial General Liability Policy – The Supreme Question 2–3 (3rd Annual
   Insurance Law Course, State Bar of Texas 2006)........................................................4
Lee H. Shidlofsky, Declaratory Judgments 14 (12th Annual Insurance Law Institute,
   University of Texas School of Law 2007)...................................................................4
Lee H. Shidlofsky, Demystifying CGL Coverage for Residential Defective Construction
   Claims, J. TEX. INS. L., Feb. 2004...............................................................................4




                                                              iv
   CAUSE NO. 08-0223
                       IN THE SUPREME COURT OF TEXAS


              TIME WARNER ENTERTAINMENT COMPANY, L.P.,
                              Petitioner

                                            v.

                OHIO CASUALTY INSURANCE COMPANY AND
                 WEST AMERICAN INSURANCE COMPANY,
                              Respondents


                        On Appeal from the Court of Appeals for
                       the Fifth Judicial District of Texas—Dallas
                               Cause No. 05-06-01437-CV


                 PETITIONER’S REPLY BRIEF ON THE MERITS


TO THE HONORABLE SUPREME COURT OF TEXAS:

       Petitioner Time Warner Entertainment Company, L.P., in accordance with TEX. R.

APP. P. 55.4 and this Court’s order, respectfully submits this Reply Brief on the Merits in

support of its Petition for Review. Petitioner is referred to herein as “Time Warner

Cable.” Respondents Ohio Casualty Insurance Company (“Ohio Casualty”) and West

American Insurance Company (“West American”) are referred to, collectively, as “the

Insurers,” unless where named in their individual capacity.




                                            1
                                             INTRODUCTION

           Time Warner Cable acknowledges that the issues in this case have been

thoroughly briefed by both parties. Nevertheless, Time Warner Cable takes this

opportunity to address a couple of issues raised by the Insurers’ in their Brief on the

Merits in this matter.

                                   ARGUMENTS & AUTHORITIES

           A.      The Plain Language of the Insurance Policies Supports Time Warner
                   Cable’s Position.

           Time Warner Cable does not disagree with the Insurers that the settled law of this

state requires courts to consider insurance policies as a whole. See, e.g., Nat’l Union Fire

Ins. Co. v. CBI Indus., 907 S.W.2d 517, 520 (Tex. 1995). But, “the maxims of contract

interpretation regarding insurance policies operate squarely in favor of the insured.”

Lubbock County Hosp. Dist. v. Nat’l Union Fire Ins. Co., 143 F.3d 239, 242 (5th Cir.

1998).

           Looking at the plain language of the insuring agreement, no requirement exists

with respect to indemnity making it mandatory that the insured’s liability be established

via judgment or settlement. Rather, the insuring agreement is much simpler: “We will

pay those sums that the insured becomes legally obligated to pay as damages because of

‘bodily injury’ or ‘property damage’ to which this insurance applies.” (CR 1:93.)1 The

only mention of a “suit” is in reference to the insurer’s duty to defend an insured, which

makes sense because an insured only would need a defense if it had first been sued. (Id.)


1
    References to “CR X:Y” are to the Clerk’s Record, with “X” as the volume number and “Y” as the page number.



                                                         2
Nothing in the policy conditions or the additional insured endorsement changes the scope

of the insuring agreement. (See CR 1:101–03; CR 1:119.)

        Accordingly, the central issue before this Court is whether Time Warner Cable

had a “legal obligation” to incur expenses in repairing the damages caused by the

defective work of its subcontractor, Signal Images Telecommunications, Inc. (“Signal”).

And, further, the issue is whether Time Warner Cable, having established that a legal

obligation existed, can then turn to its insurer as an additional insured to seek

reimbursement for payment of that legal obligation. Contrary to the Insurers’ position,

Time Warner Cable is not trying to decide coverage on its own.2

        In fact, Time Warner Cable presented evidence regarding coverage and the trial

court held that coverage existed and awarded damages in its favor. (CR 1:36; CR 2:238;

CR 3:671; CR 5:967.) On appeal, the court did not reach the coverage issue because it

found—albeit erroneously—that no “legal obligation to pay” existed. See Ohio Cas. Ins.

Co. v. Time Warner Enter. Co., L.P., 244 S.W.3d 885, 891–92 (Tex. App.—Dallas 2008,

pet. filed). And, in any event, the Insurers’ contention that Time Warner Cable is merely

“seeking ‘damages’ from itself,” is misleading. (See Respondent’s Brief on the Merits

11.) While the contract between Time Warner Cable and Signal lists several entities as

the “Owner,” the contract does not change the fact that each of the entities is separate and




2
  Cf. Respondents’ Brief on the Merits 6 (claiming that “[i]f Texas law authorized insureds (as opposed to courts and
insurers) to decide whether ‘damages’ they incurred were covered by a liability policy, as Time Warner did here, the
entire insurance system would be turned on its head and insurance premiums would skyrocket . . .”).



                                                         3
distinct.3 Accordingly, Time Warner Cable does not seek damages from itself. Rather, as

established in the trial court, it seeks insurance coverage from Signal’s insurer as an

additional insured for amounts incurred to repair damages caused by Signal and in order

to avoid liability to third parties.

         As noted by Donald S. Malecki and Arthur L. Flitner, a legal obligation can arise

in numerous contexts. See DONALD S. MALECKI & ARTHUR L. FLITNER, COMMERCIAL

GENERAL LIABILITY (8th ed. 2005). “The expression legally obligated connotes legal

responsibility that is broad in scope. . . . Civil liability can arise from either unintentional

(negligent) or intentional tort, under common law, statute, or contract.” Id. In fact, the

provision is so broad that it does not even require the insured to make an actual payment,

“only that the insured have an obligation to pay.” Id.4

         Here, Time Warner Cable not only established the legal obligation it faced but also

established its payment of that obligation. (CR 2:298–99; CR 2:507; CR 4:750–52; CR


3
  As specified in the contract with Signal, Time Warner Entertainment Company, L.P. is a Delaware limited
partnership, acting by and through a separate entity, Time Warner Cable Construction Division, for and on behalf of
a third entity, Time Warner Telecom of Dallas, Texas. (CR 2:305.)
4
  The Insurers’ reliance upon papers written by the undersigned counsel as an attempt to somehow show a change in
counsel’s position on this issue is misleading. Quite frankly, in each of the papers and briefs cited by the Insurers,
the undersigned merely quoted the Corpus Christi Court of Appeals’ interpretation of an insurers’ duty to indemnify.
(Brief of Appellant 7–8, Lamar Homes, Inc. v. Mid-Continent Casualty Co., No. 05-0832, filed Dec. 2, 2005
(quoting S. County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 460 (Tex. App.—Corpus Christi 2000, no pet.)); see also
Lee H. Shidlofsky, Declaratory Judgments 14 (12th Annual Insurance Law Institute, University of Texas School of
Law 2007) (same)). Quoting a court’s opinion does not—in and of itself—constitute “advocating” that position. (Cf.
Respondent’s Brief on the Merits 13 n.13.) And, as a practical matter, the undersigned did not even write the last
paper cited by the Insurers. Rather, it was written by Christopher “Kipper” Burke, who is now in-house counsel for a
major U.S. insurance company. See Christopher “Kipper” Burke, Construction Defects and the Insuring Agreement
in the Commercial General Liability Policy – The Supreme Question 2–3 (3rd Annual Insurance Law Course, State
Bar of Texas 2006) (Speaker – Lee H. Shidlofsky). Further, in the cited papers, the undersigned was not addressing
the issue before this Court. The specific issue has, however, been addressed in other papers authored by the
undersigned in a manner consistent with the briefing herein. See, e.g., Lee H. Shidlofsky, Demystifying CGL
Coverage for Residential Defective Construction Claims, J. TEX. INS. L., Feb. 2004, at 41 n.6. And, even if the Court
perceives some inconsistency, Time Warner Cable certainly should not be penalized.



                                                          4
4:892; CR 4:916–38; CR 5:967.)5 Further, Time Warner Cable established that the legal

obligation arose out of the work performed by Signal, as required by the additional

insured endorsement. (CR 2:240; CR 2:277–78; CR 2:281–84; CR 2:440–42; CR 2:445–

48; CR 2:483–85.) As such, the plain language of the insuring agreement at issue was

met.

         Further, while not agreeing that the “Legal Action Against Us” provision is

properly before this Court or that it applies to insureds,6 the provision arguably is

satisfied by Time Warner Cable’s “legal obligation” to pay damages. That is, the “Legal

Action Against Us” provision discusses two prohibited scenarios: (1) a person or

organization joining the insurer as a party or otherwise into a “suit” asking for damages

from an insured; and (2) a person or organization suing the insurer before all the terms

have been complied with. (CR 1:102 (emphasis added).) Here, it is undisputed that Time

Warner Cable filed this separate action against the Insurers and did not attempt to bring

the Insurers “into a ‘suit’ asking for damages from an insured.” (CR 1:10; CR 3:566.)

Accordingly, the first prohibited scenario is inapplicable to the facts at bar. The second

5
  To the extent that the Insurers now raise an issue regarding the contract between Time Warner Cable and Time
Warner Telecom, the Insurers’ argument is too late. Deposition testimony regarding this contract was presented
without contradiction at the trial court and the Insurers cannot now raise an issue as to its sufficiency for the first
time in this Court. See Tex. R. App. P. 53.2(f).
6
  Notwithstanding the Insurers’ claims to the contrary, the briefing in the court of appeals clearly indicates that the
Insurers’ reliance upon the policy conditions was limited to its position that Time Warner Cable could not sue the
Insurers’ as a third-party claimant. (Appellants’ Brief 7–16; Reply Brief of Appellants 2–13.) When discussing Time
Warner Cable’s ability to seek coverage as an additional insured, the policy conditions never were discussed.
(Appellants’ Brief 16–17; Reply Brief of Appellants 4–8.) And, as a practical matter, the “voluntary payments”
provision relied on by the Insurers in its Response to the Petition for Review in this Court simply does not apply—
and the Insurers agreed with this position at the trial court. (See CR 3:606 (“The Voluntary Payments Provisions in
the Policies Do Not Apply”).) Even if this Court were to conclude that Time Warner Cable violated the “Legal
Action Against Us” or the “voluntary payments” condition, the Insurers wholly have failed to establish that they
have been prejudice by Time Warner Cable’s alleged violations. See PAJ, Inc. v. Hanover Ins. Co., 243 S.W.3d 630
(Tex. 2008); Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692–93 (Tex. 1994).



                                                          5
prohibited scenario only prevents a suit against an insurer if the policy terms have not

been complied with. Again, in light of the fact that the “legal obligation” requirement has

been satisfied, Time Warner Cable has adhered to every term of the insurance policies at

issue and the Insurers have failed to show otherwise.7 While the “Legal Action Against

Us” provision goes on to state that “[a] person or organization may sue us to recover on

an agreed settlement or a final judgment against an insured obtained after an actual trial,”

(CR 1:102), the provision does not state that those are the only avenues of pursuing an

insurer for recovery. Moreover, again in contravention of the implications made by the

Insurers, that provision does not provide a definition for “legally obligated to pay as

damages.” As acknowledged by the Insurers, that phrase is not defined in the policy and

should be provided its common and ordinary meaning. (Respondents’ Brief on the Merits

8 (citing Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex. 1984)).) Because the

plain language of the insurance policy supports Time Warner Cable’s position, this Court

should grant this Petition for Review, reverse the judgment of the court of appeals and

remand the case for further proceedings.

        B.       Texas and Non-Texas Case Law Support Time Warner Cable’s
                 Position.

        Notwithstanding the Insurers’ attempt to imply otherwise, Texas courts have

found that a legal obligation to pay damages can arise from a contract—not necessarily a

settlement contract. (See Respondents’ Brief on the Merits 22 (claiming that Texas courts

7
  The “voluntary payments” provision, which was raised by the Insurers in its Response to the Petition for Review,
has not been addressed in its brief on the merits. (See Respondent’s Brief on the Merits 17–21.) No other policy
terms—save for the insuring agreement and the “Legal Action Against Us” provision—are at issue. While the
Insurers also claimed at the appellate court that exclusions in the policies bar coverage, those exclusions were not
addressed by the court of appeals and have not been addressed in this Court.



                                                         6
find that a legal obligation to pay can arise “pursuant to a judgment or settlement contract

or, possibly, a statute” (emphasis added)).) In fact, the court in Lennar Corp. v. Great

American Insurance Co., 200 S.W.3d 651 (Tex. App.—Houston [14th Dist.] 2006, pet.

denied), specifically said that “giving the phrase [‘legally obligated to pay as damages’]

its ordinary meaning, it means an obligation imposed by law, such as an obligation to pay

pursuant to a judgment, settlement, contract, or statute.” Id. at 680 (emphasis added).

Moreover, the Insurers’ claim that the language of the “Legal Action Against Us” clause

is implicitly included in Texas courts’ interpretation of the “legal obligation to pay”

language is not supported by the case law cited. (See Respondents’ Brief on the Merits

24.)8 In particular, none of the cases referenced by the Insurers ever discusses the “Legal

Action Against Us” provision and its effect, if any, on the insuring agreement of a

liability policy. But see Wilcox v. Am. Home Assurance Co., 900 F. Supp. 850, 856 (S.D.

Tex. 1995) (mentioning two conditions of an insurance policy only to state that an

insured is not constrained by them when the insurer breaches its duty to defend).

         In addition, two additional cases cited by the Insurers also are distinguishable. In

Continental Oil Co. v. Bonanza Corp., 706 F.2d 1365 (5th Cir. 1983), the court found

that the removal of ship wreckage was not covered “unless the duty is occasioned by [the

insured’s] ownership of the vessel.” Id. at 1371. The policy at issue specifically limited

coverage to sums that the additional insured paid “as owner” of the vessel at issue. Id.

8
  In fact, the Insurers even go so far as to say that the “Legal Action Against Us” provision is “the best evidence of
what is meant by ‘legally obligated to pay as damages’ as used in the CGL policy insuring agreement,” yet they do
not cite a single case to support that proposition. (Respondent’s Brief on the Merits 20.) Again, no dispute exists that
the phrase “legally obligated to pay as damages” is not defined in the policies and thus it is given its plain and
ordinary meaning. (Respondents’ Brief on the Merits 8 (citing Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938
(Tex. 1984)).)



                                                           7
Thus, the policy did not cover the damages at issue because the policy did not apply in

the first instance as Bonanza—not Conoco—was the owner of the ship at issue. Id. And,

in Hathaway Development Company, Inc. v. Illinois Union Ins. Co., 274 F. App’x 787

(11th Cir. Apr. 18, 2008), the court never even addressed the phrase “legally obligated to

pay as damages.” Rather, on the only page cited by the Insurers, the Eleventh Circuit

Court of Appeals said that the insured in that case had violated the “voluntary payments”

condition of the insurance policy. Id. at 791. As noted in Time Warner Cable’s Brief on

the Merits, the Insurers have not raised the “voluntary payments” provision in this case

and when it was raised by Time Warner Cable in its summary judgment briefing at the

trial court, the Insurers specifically stated that the provision was inapplicable. (See CR

3:606 [“The Voluntary Payments Provisions in the Policies Do Not Apply.”].)

Accordingly, the Hathaway case has no bearing on the issues before this Court.

        Further, the Insurers’ attempt at distinguishing the cases cited by Time Warner

Cable in its Brief on the Merits primarily is premised on the fact that “[n]one of the cases

included in their policy analysis the impact of the CGL policy conditions such as the no-

action clause.” (Respondents’ Brief on the Merits 29.) That those courts did not address

the “Legal Action Against Us” or the “voluntary payments” condition in the context of

interpreting the “legally obligated to pay” language actually supports Time Warner

Cable’s argument before this Court. 9 And, as was outlined in Time Warner Cable’s Brief


9
  In fact, in Potomac Insurance of Illinois v. Huang, 2002 WL 418008 (D. Kan. Mar. 1, 2002), the insurer attempted
to deny coverage based on a violation of the “voluntary payments” provision, but—as under Texas law—the court
noted that an insurer must demonstrate prejudice. Id. at *16. See also Lennar Corp. v. Great Am. Ins. Co., 200
S.W.3d 651, 695 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (“Markel contends that Lennar violated these
conditions by failing to timely give Markel notice of the EIFS claims and by voluntarily settling the claims without


                                                         8
on the Merits, the application of the “Legal Action Against Us” provision is not properly

before this Court. (Petitioner’s Brief on the Merits 22–25.) Despite the Insurers’ attempt

at establishing otherwise, no evidence exists that the “Legal Action Against Us”

provision ever has been raised with respect to Time Warner Cable’s ability to establish

coverage as an additional insured. (Cf. Respondents’ Brief on the Merits 18–19.) In fact,

the Insurers merely cited to long sections of its prior briefing without pinpointing a single

instance where it specifically contended that the “Legal Action Against Us” provision

applied to Time Warner Cable as an additional insured (as opposed to a third-party

claimant) and that the provision had not been satisfied. The Insurers’ attempts to do so

now are too late. See TEX. R. APP. P. 53.2(f).

       Moreover, the Insurers improperly rely on this Court’s holding in State Farm Fire

& Casualty Co. v. Gandy, 925 S.W.2d 696, 714 (Tex. 1996), to argue that a “suit

requirement” should be imposed. (See Respondents’ Brief on the Merits 14–15.) Notably,

however, this Court limited Gandy to its facts and did not require a “fully adversarial

trial” in the absence of a pre-trial assignment. See Evanston Ins. Co. v. ATOFINA

Petrochemicals, Inc., 256 S.W.3d 660 (Tex. 2008); see also Mid-Continent Cas. Co. v.

JHP Development, Inc., 2009 WL 189886 (5th Cir. Jan. 28, 2009) (noting that ATOFINA

clarified that the holding in Gandy was explicit and narrow). Quite simply, the same

concerns expressed by this Court in Gandy are not present in this case.




Markel’s consent. However, Markel has not established that it was prejudiced by Lennar’s violating these
conditions.”).



                                                   9
        The phrase “legally obligated to pay as damages” that is consistently used in

liability insurance policies throughout the country has been interpreted in various

scenarios and the appellate courts of this state—as well as state and federal courts in

other jurisdictions—clearly differ on its meaning. 10 Accepting the Insurers’ and the court

of appeals’ interpretation of the “legally obligated to pay” provision is against sound

public policy, as it would require insureds like Time Warner Cable to refuse to mitigate

damages and to instead sit back and do nothing. Such an interpretation of the CGL policy

would encourage needless litigation and could, in certain circumstances, lead to

dangerous results.

                                                   PRAYER

        Petitioner Time Warner Entertainment Company, L.P. prays this Court grant this

Petition for Review, reverse the judgment of the court of appeals, remand the case for

further proceedings, and further prays for all other relief to which it is justly entitled.




10
   This is a recurring theme with the CGL policy. See Don’s Building Supply, Inc. v. OneBeacon Ins. Co., 267
S.W.3d 20, 28 (Tex. 2008) (“As occurred in Lamar Homes, Inc. v. Mid-Continent Casualty Co., we are again asked
by the Fifth Circuit to construe a widely used CGL policy where ‘unfortunately there is no consensus on the policy’s
meaning under the circumstances posed here.’”).In order to avoid duplicative arguments, discussion of these
differing opinions on the “legally obligated to pay” language is not repeated here as it can be found in Time Warner
Cable’s prior briefing in this Court. (See Petition for Review 6–11; Reply to Response to Petition for Review 5–7;
Petitioner’s Brief on the Merits 9–17.)



                                                        10
                                          Respectfully submitted,



                                          Lee H. Shidlofsky
                                          State Bar No. 24002937
                                          Douglas P. Skelley
                                          State Bar No. 24056335
                                          VISSER SHIDLOFSKY LLP
                                          7200 N. Mopac Expy., Suite 430
                                          Austin, Texas 78731
                                          Telephone: (512) 795-0600
                                          Facsimile: (866) 232-8709

                                          ATTORNEYS FOR PETITIONER
                                          TIME WARNER ENTERTAINMENT
                                          COMPANY, L.P.

                             CERTIFICATE OF SERVICE

       By my signature below, I hereby certify that a true and correct copy of the above
and foregoing Reply Brief on the Merits has been served upon the following counsel of
record for Respondent via certified U.S. mail, return receipt requested, on this the 6th day
of February, 2009:

VIA CERTIFIED MAIL #7008 1140 0003 8772 3030
R. Brent Cooper
Michelle E. Robberson
COOPER & SCULLY, P.C.
900 Jackson Street, Suite 100
Dallas, Texas 75202
Counsel for Respondents


                                                 Lee H. Shidlofsky




                                            11

				
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