Brandon v. American Sterilizer Co.

• Decision Date: 29 June 1994
• Docket Number: No. 3-92-554-CV,3-92-554-CV
• Citation: 880 S.W.2d 488
• Parties: Genell BRANDON and Earl H. Staelin, Appellants, v. AMERICAN STERILIZER COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 488

880 S.W.2d 488

Genell BRANDON and Earl H. Staelin, Appellants, v. AMERICAN STERILIZER COMPANY, Appellee.

No. 3-92-554-CV.

Court of Appeals of Texas Austin.

June 29, 1994.

Rehearing Overruled Aug. 17, 1994.

Earl H. Staelin, Austin, for appellants.

Jeffrey R. Jury, Wilson, Grosenheider & Burns, Austin, for appellee.

Before CARROLL, C.J., and ABOUSSIE and B.A. SMITH, JJ.

ABOUSSIE, Justice.

Genell Brandon sued American Sterilizer Company ("AMSCO") for personal injuries resulting from toxic chemical exposures on theories of products liability, deceptive trade practices, ¹ breach of warranty, negligence, and gross negligence. The trial court granted AMSCO's motion for directed verdict on the deceptive trade practices and express warranty claims. The court rendered judgment on the jury's verdict for Brandon on the negligence and products liability claims, reducing the damage award relative to the Brandon appeals the trial court's granting of AMSCO's motion for directed verdict on her claims under the DTPA and for breach of express warranty. ² Brandon further appeals the trial court's denial of prejudgment interest for the period between the date of verdict and the date of judgment, as well as the court's award of a credit to AMSCO against Brandon's judgment for the amount exceeding the payment to Brandon by her employer's workers' compensation carrier, National Union Fire Insurance Company ("National Union"). Finally, Brandon appeals the trial court's allocation of attorney's fees awarded under the Texas Workers' Compensation Act. Texas Workers' Compensation Act, 71st Leg., 2d C.S., ch. 1, § 1.01, 1989 Tex.Gen.Laws, 1, 1 (formerly Tex.Rev.Civ.Stat.Ann. art. 8308-1.01). We will affirm the trial court's judgment as to the directed verdict, the credit to AMSCO, and the allocation of attorney's fees. We will reform the judgment regarding the denial of prejudgment interest.

jury's findings of contributory negligence and causation.

BACKGROUND

Brandon worked at Seton Medical Center from December 1978 to October 1984, when she was injured by exposure to certain toxic chemicals. Brandon worked as a "cardiopulmonary equipment specialist," and part of her duties included loading hospital equipment into two gas sterilizers that use a toxic gas known as ethylene oxide to sterilize the equipment. Brandon was responsible for operating and monitoring the gas sterilizers. Seton purchased the sterilizers from AMSCO in 1977, and AMSCO was responsible for their maintenance through an annual "preventative maintenance agreement" signed by the parties. On October 29, 1984, Brandon arrived at work to find an AMSCO maintenance person apparently working on one of the sterilizers. After the AMSCO worker left, the sterilizer began to leak, exposing Brandon to toxic gas.

STANDARD OF REVIEW

A party is entitled to a directed verdict when reasonable minds can draw only one conclusion from the evidence. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex.1982); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). An appellate court must determine whether any probative evidence raising a fact issue on the material questions presented exists. In making this determination, the court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed and disregard all evidence and inferences to the contrary. Qantel Business Sys. v. Custom Controls, 761 S.W.2d 302, 305 (Tex.1988) (citations omitted); Jones, 638 S.W.2d at 865; Collora, 574 S.W.2d at 68 (citations omitted). If the appellate court finds there is any probative evidence raising a material fact issue, it must reverse the trial court's judgment and remand the cause for the jury's determination of that issue. Qantel, 761 S.W.2d at 304.

DISCUSSION AND HOLDING

Consumer Status under the DTPA

In her first point of error, Brandon argues the trial court erred in granting AMSCO's motion for directed verdict on her DTPA claim. The trial court held Brandon was not a "consumer" under the relevant provisions of the DTPA. Brandon argues she qualifies as a consumer because, even though she did not purchase the gas sterilizers, she sufficiently acquired the sterilizers, as well as AMSCO's maintenance services, pursuant to the preventative maintenance agreement ("PMA") when she was assigned to operate the equipment.

We recognize that "[t]he purpose of the DTPA is the protection of consumers from deceptive trade practices, and the act is to be liberally construed to achieve this underlying goal." Star Houston, Inc. v. Kundak, 843 S.W.2d 294, 297 (Tex.App.--Houston [14th Dist.] 1992, no writ). Accordingly, we interpret the definition of consumer broadly in a wide variety of situations. The issue before us is very difficult because it asks us to expand the definition of consumer even further. However, for the following reasons, we conclude that the trial court correctly found that Brandon is not a consumer under the DTPA.

The DTPA defines a "consumer" as "an individual ... who seeks or acquires by purchase or lease, any goods or services...." Tex.Bus. & Com.Code Ann. § 17.45(4) (West 1987). One can qualify as a consumer under the DTPA without actually purchasing the goods or services at issue. Kennedy v. Sale, 689 S.W.2d 890, 892 (Tex.1985). In Kennedy, the Texas Supreme Court held that an employee was a consumer under the DTPA for purposes of suing on a group insurance policy, even though his employer had purchased the policy. Id. The court observed:

'Privity between the plaintiff and defendant is not a consideration in deciding the plaintiff's status as a consumer under the DTPA.... A plaintiff establishes his standing as a consumer in terms of his relationship to a transaction, not by contractual relationship with the defendant. The only requirement is that the goods or services sought or acquired by the consumer form the basis of his complaint.'

Id. at 892-93 (quoting Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 707 (Tex.1983)). The court reasoned that, although the employee had not "sought" the policy benefits, he sufficiently "acquired" those benefits through his coverage by the policy's provisions. Kennedy, 689 S.W.2d at 892. Furthermore, even though the employee had not purchased the policy, he did acquire the policy benefits "by purchase, albeit a purchase consummated for his benefit by the hospital district's Board of Managers." Id. (emphasis added); see also Wellborn v. Sears, Roebuck & Co., 970 F.2d 1420 (5th Cir.1992) (holding that the son of woman who bought garage door opener was a consumer under the DTPA because a primary purpose of the purchase was to benefit the son).

While the Kennedy decision gives some guidance on the issue presented herein, its usefulness is limited by the fact that in Kennedy, the employer's primary purpose for purchasing the insurance policies was to benefit the employee. Left unaddressed is the issue presented here, in which an employer buys equipment primarily for the purpose of benefitting his business, but assigns employees to use the equipment.

Other courts of appeals have addressed similar situations involving consumer status under the DTPA. In Lara v. Lile, 828 S.W.2d 536 (Tex.App.--Corpus Christi 1992, writ denied), the Laras sued the employer of a man who had run over and killed Raul Lara. The defendant employer, Charles Lile d/b/a Raven Transport and Raven Supply ("Raven"), had contracted with Lara's employer, Heldenfels Brothers, Inc. to deliver concrete culverts for Heldenfels to use in a road construction project. One day, a Raven employee was moving a truck forward at the site when he accidentally ran over Lara. In addition to a wrongful death action, the Laras sued under the DTPA, alleging Lara's death was caused by defects and breaches of express or implied warranties and/or representations prohibited by the DTPA. Lile filed special exceptions to the Laras' pleadings, contending Lara was not a "consumer" under the DTPA, and the trial court granted the exceptions. Id.

On appeal, the appellate court affirmed on the DTPA issue, holding Lara was not a consumer because he had not acquired the services from Raven. Id. at 542. The court distinguished Kennedy by stating that, although a plaintiff may acquire goods or services purchased by another for his benefit, a plaintiff may not be considered a consumer when he has no relationship to the sales transaction involving the goods. Id. at 541-42. The court then concluded Lara had no such connection with the services Raven provided, stating:

The pertinent question is what was Lara to acquire or receive from Raven. The only service performed by the trucking firm was the transportation of culverts from one location to another. Raven's trucking service was not sought, received or acquired by Lara, nor did it benefit Lara.... The only connection between Lara and Raven consisted of both parties performing work for Heldenfels, Lara as an employee and Raven as a subcontractor.

Appellants argue that Lara had a relationship to the transaction between Heldenfels and Raven in that Lara and the other workers on the construction site 'acquired' the benefits of a safe place to work from Raven ... [h]owever, transportation was the primary service acquired; safety was incidental, albeit essential. The primary service acquired was not for the benefit of the Heldenfels employees, and was not received or acquired by them.

Id. at 542 (emphasis added).

Another case addressing the issue of consumer status under the DTPA is Hernandez v. Kasco Ventures, Inc., 832 S.W.2d 629 (Tex.App.--El Paso 1992, no writ). Kasco Ventures leased a warehouse to the plaintiff's employer, Miles Transportation & Distribution Co. Kasco also provided dock levelers to Miles to aid the loading and unloading of freight into the storage facility. Hernandez, a warehouseman of Miles, was injured due to a malfunctioning dock leveler. Hernandez sued Kasco under many theories,...