Bontke v. Cargill Meat Logistics Solution, Inc.

• Decision Date: 14 April 2014
• Docket Number: No. 07-12-00328-CV,07-12-00328-CV
• Parties: JANET BONTKE, INDIVIDUALLY AND AS GUARDIAN OF THE ESTATE AND PERSON OF NOLAN BONTKE, A WARD, APPELLANT v. CARGILL MEAT LOGISTICS SOLUTION, INC., CARGILL MEAT SOLUTIONS CORPORATION, AND TULIA FEED LOT, INC., APPELLEES
• Court: Texas Court of Appeals

JANET BONTKE, INDIVIDUALLY AND AS GUARDIAN OF THE ESTATEAND PERSON OF NOLAN BONTKE, A WARD, APPELLANT v. CARGILL MEAT LOGISTICS SOLUTION, INC., CARGILL MEAT SOLUTIONS

CORPORATION, AND TULIA FEED LOT, INC., APPELLEES

No. 07-12-00328-CV

Court of Appeals Seventh District of Texas at Amarillo

April 14, 2014

On Appeal from the 64th District Court

Swisher County, Texas

Trial Court No. A-11598-10-06, Honorable Robert W. Kinkaid Jr., Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Janet Bontke, individually and as guardian of the estate and person of Nolan Bontke (Bontke), appeals from a judgment denying her recovery against Cargill Meat Logistics Solution, Inc. (Cargill Logistics) and Cargill Meat Solutions Corporation (jointly referred to as Cargill) and Tulia Feed Lot, Inc. (the Feedlot). The suit arose from injuries suffered by Nolan Bontke after attempting to load an injured steer into a cattletrailer at the Tulia Feed Lot. It was not the injured steer that caused his injuries but rather a healthy animal used to induce the injured animal into the trailer. It became agitated, ran down a shoot towards an unlocked gate behind which Nolan stood, struck the gate, and knocked Nolan to the ground. Nolan had been hired by Cargill Logistics, as an independent contractor, to haul cattle purchased by Cargill Meat Solutions from the Feed Lot. After a partial summary judgment in favor of Cargill and the Feedlot, trial was to a jury which returned a verdict against Bontke.

Bontke asserts multiple issues on appeal. We overrule them and affirm the judgment.

Issue 1—Reference to Insurance

Bontke initially complains of two references to insurance made before the jury. These references occurred when Cargill's attorney was cross-examining Danny Davis, another independent contractor truck driver for Cargill Logistics, about the terms of his contract. Davis was being questioned about whether the latter provided him insurance covering accidents while driving. The witness answered affirmatively, after which Bontke objected because she did not want the jury to know that he (Nolan) had insurance coverage. The trial court sustained the objection and instructed the jury to "disregard the last complete question and answer that you heard in the courtroom . . . and not consider any of it, whatsoever." Later, Davis was asked if his contract with Cargill Logistics obligated him to provide himself with worker's compensation or unemployment insurance. Bontke again objected and requested the trial court to instruct the jury that "the Plaintiffs have not benefited from any insurance pursuant to a contract with Cargill Logistics." Though the trial court did not specifically rule on theobjection, it nonetheless told the jury that it should "disregard the last comment, question and answer and not consider it for any purpose whatsoever." The jury was not told that the "Plaintiffs have not benefited from any insurance pursuant to a contract with Cargill Logistics," and this led Bontke to argue on appeal that "Cargill deliberately injected insurance in the case and, with the absence of [a] proper instruction to the jury negating double recovery by Appellant, the jury was clearly confused and became concerned with 'who pays' . . . ." We overrule the issue.

When reviewing issues pertaining to the admission of evidence, we apply the standard of abused discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). That is, the decision of the trial court must stand unless it failed to comport with controlling rules and principles or was otherwise arbitrary. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). And, should it be shown that the trial court abused its discretion, reversal is not automatic. Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 708 (Tex. 1989); Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex. App.—El Paso 1993, writ denied). There still must be a showing of harm or prejudice. Brownsville Pediatric Ass'n v. Reyes, 68 S.W.3d 184, 193 (Tex. App.—Corpus Christi 2002, no pet.).

Here, the trial court sustained appellant's objections but did not instruct the jury in the manner requested by Bontke. That is where the purported error lay. However, we cannot say she was entitled to the instruction sought because we cannot say that the evidence to which the objections were lodged was inadmissible.

It is true evidence that whether a person was or was not insured against liability is generally inadmissible for purposes of showing that the person acted negligently orwrongfully. TEX. R. EVID. 411. But, allusion to the evidence is not prohibited in all situations. For instance, it may be admissible when offered to prove such things as agency, ownership, or control if those matters are in dispute. See id.; St. Joseph Hosp. v. Wolff, 999 S.W.2d 579, 595 (Tex. App.—Austin 1999), rev'd on other grounds, 94 S.W.3d 513 (Tex. 2002) (finding no abuse of discretion in admitting evidence that the hospital provided malpractice insurance for the doctor because it supported the claim that he was an employee of the hospital and the court gave a limiting instruction); Thornhill v. Ronnie's I-45 Truck Stop, Inc., 944 S.W.2d 780, 793-94 (Tex. App.—Beaumont 1997, writ dism'd by agr.) (finding evidence that loan agreements required one party to provide insurance on a motel admissible because it was offered to show the exercise of control over the motel premises).

At bar, the parties argued about Nolan's employment status with Cargill, or lack thereof. So too did they debate the extent of control maintained by Cargill over the acts and duties of Nolan, as an independent contractor. Answers to questions about whether Cargill provided drivers like Nolan such things as workers' compensation, unemployment, or liability insurance were relevant to those disputes, that is, disputes regarding Nolan's status as an employee or an individual within the control of Cargill. Having an obligation to provide or actually providing such insurance to drivers like Nolan and Davis could be viewed as indicia suggesting they were indeed employees or under the control of Cargill Logistics. Thus, the evidence was relevant and actually admissible, even though the trial court excluded it. And, because it was admissible, Bontke was not entitled to an instruction directing the jurors to disregard what was said.

Issue 2—Exclusion of Expert Witness

In her second issue, Bontke contends that the "[e]xclusion of . . . [her] rebuttal expert witness precluded imperative testimony and resulted in an improper verdict as to liability." The rebuttal expert in question was Johan Rasty, and, the trial court sustained Cargill's objection to him testifying because he was not properly designated as a witness. We overrule the issue.

Again, the standard of review is one of abused discretion. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (noting that the decision to exclude testimony is reviewed for abuse of discretion). And where the rules of civil procedure control, the failure to properly designate expert witnesses results in the automatic exclusion of their testimony unless 1) good cause is shown justifying the omission or 2) the omission "will not unfairly surprise or unfairly prejudice the other parties." TEX. R. CIV. P. 193.6(a); Tranum v. Broadway, 283 S.W.3d 403, 425 (Tex. App.—Waco 2008, pet. denied); Perez v. Embree Constr. Group, Inc., 228 S.W.3d 875, 884 (Tex. App.—Austin 2007, pet. denied).

Here, the clerk's record illustrates that the trial court executed an "Agreed Discovery Control and Scheduling Order" in December of 2010. Therein, it ordered that "[p]laintiffs must designate each expert witness who may be called at trial and provide a written report from such expert" by "March 31, 2011." In turn, the defendants had until "May 31, 2011" to designate their experts. Then, the scheduling order closed with the statement that "[t]he dates established hereby are firm, but any date, except the trial date, may be amended by the parties by a Rule 11 Agreement, without Court approval" and "[i]f the trial is rescheduled, this Order will be amended as appropriate." The partiessubsequently entered into a Rule 11 agreement affecting the aforementioned deadlines. That agreement, the validity of which no one attacks on appeal, consisted of a letter from Bontke's counsel stating:

We just got our copies of the latest round of depositions late last week. We are working with our experts promptly on this but with the short holiday week and considering the fact that we have to have reports with our designation, I think one final short extension on the expert deadline is in order. I would request that we agree to move both Plaintiff and Defendant deadlines back two weeks. Thus the new Plaintiff deadline would be May 13, 2011 and the new Defendant deadline would be July 14, 2011. If you are in agreement, please sign below and fax back to me as soon as possible. If anyone has an issue with this, would he or she give me a call to let me know right away so we can visit about it.

The original trial date was rescheduled. However, no one moved to modify the dates denoted as "firm" within the scheduling order, at least with regard to those pertaining to the designation of experts. Moreover, Bontke did not designate Rasty as a rebuttal witness until after the lapse of the May 13, 2011 deadline specified in the Rule 11 agreement. Consequently, his testimony was excluded at trial, and Bontke contends that the trial court abused its discretion in doing so.

In addressing the debate before us, we view our opinion in Alonzo v. Lampkin, No. 07-12-00030-CV, 2013 Tex. App. LEXIS 13932 (Tex. App.—Amarillo November 13, 2013, no pet.) (mem. op.) as instructive. That case involved a Rule 11 agreement specifying a date by which the parties were to "list each expert's name". Id. at *7. Furthermore, Alonzo failed to designate an expert rebuttal witness by that date, and the...