C & H Nationwide, Inc. v. Thompson

• Decision Date: 09 May 1991
• Docket Number: No. 01-90-00445-CV,01-90-00445-CV
• Citation: 810 S.W.2d 259
• Parties: C & H NATIONWIDE, INC., Edward Stanton Webber, and Ecotech International, Inc., Appellants, v. Linda Gail THOMPSON, Individually and as Executrix of the Estate of Jerry Wayne Thompson, Troy Neal Thompson, Theresa Thompson Fields, and Energys Coating Company, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 259

810 S.W.2d 259

C & H NATIONWIDE, INC., Edward Stanton Webber, and Ecotech International, Inc., Appellants, v. Linda Gail THOMPSON, Individually and as Executrix of the Estate of Jerry Wayne Thompson, Troy Neal Thompson, Theresa Thompson Fields, and Energys Coating Company, Appellees.

No. 01-90-00445-CV.

Court of Appeals of Texas Houston (1st Dist.).

May 9, 1991.

Rehearing Overruled May 30, 1991.

OPINION ON MOTION FOR REHEARING

PRICE, Justice (Assigned).

We deny the motion for rehearing of Ecotech International, Inc. ("Ecotech"). We withdraw our opinion of March 7, 1991, and we substitute the following opinion.

This is an appeal from a judgment in a wrongful death and survival action. The action was brought by Linda Thompson, individually and as executrix for the estate of Jerry Thompson, Troy Thompson, and Theresa Thompson Fields (collectively referred to as "Thompsons") against C & H Nationwide, Inc. ("C & H"), Edward Stanton Webber ("Webber"), Hugh Pratt d/b/a/ Pratt Truck Leasing ("Pratt"), Ecotech, Shell Oil Company and Shell Western E & P, Inc. (collectively referred to as "Shell"), and Energy Coatings Company ("Energy Coatings"). The jury verdict awarded damages of $8.2 million to the Thompsons. In addition, funeral expenses were stipulated at $5,720.35. Total damages were $8,205,720.35. The trial court deducted $6 million for payments made by Shell, C & H, Pratt, and Webber leaving $2,205,720.35. The court added prejudgment interest in the amount of $884,073.43, resulting in a total judgment to the Thompsons of $3,089,793.73. Ecotech, C & H, and Webber appeal this judgment.

On November 18, 1987, Jerry Wayne Thompson was killed when a 40-foot length of 10 3/4-inch pipe collided with the car he was driving south on Highway 59. The pipe fell off the tractor-trailer that was transporting it north on Highway 59.

C & H leased the tractor-trailer from Pratt, and Webber, an employee of C & H, drove it. The pipe was owned by Shell. It was being transported from a facility of Energy Coatings, which had recently coated the pipe with epoxy. Energy Coatings employees had loaded the pipe onto the trailer, and Webber had secured it with straps. Shell employed Ecotech to monitor the coating process and monitor the loading and securing of the pipe to ensure the coating was not damaged.

Before trial, Shell reached a full and final settlement with the Thompsons paying them $3 million. In addition, in a partial settlement, C & H, Webber, and Pratt made payments to the Thompsons totaling $3 million. The Thompsons were paid $100,000 on May 6, 1988; $900,000 on January 25, 1989; $1 million on February 13 At trial, Calvin Barr testified that on November 18, 1987, he was employed by Ecotech to monitor the loading procedures of four C & H trucks leaving Energy Coatings. Barr stated that he had no experience, training, or instruction on safely securing pipe to a flatbed truck. Barr denied that he ordered Webber away from the truck while it was being loaded. Barr testified that Shell called for the pipe to be secured by straps. Six straps were used to secure the pipe on Webber's truck; four straps were used over the top with two more straps holding the lower layer. Barr stated that if a driver had tried to use padded chains to secure the load, he would have made a phone call to get permission, but he did not recall anyone trying to use padded chains on November 18, 1987.

1989; and $1 million on February 17, 1989. In exchange for the payments, the Thompsons agreed to limit their claim for actual damages against C & H, Webber, and Pratt to $8.5 million; to abandon any claim for punitive damages against C & H, Webber, and Pratt; to credit C & H, Webber, and Pratt for up to $3 million against any damages awarded by the jury during trial; to indemnify C & H, Webber, and Pratt against any cross-actions for contribution brought by the other defendants in excess of $8.5 million; and to allow C & H, Webber, and Pratt veto power over any settlement between the Thompsons and any of the remaining defendants. However, C & H, Webber, and Pratt expressly continued to deny liability.

Webber confirmed that he secured the pipe on his trailer with six straps, two over the first two tiers and four over the top. Webber testified that he intended to use stakes and padded chains to secure the pipe, but Barr prevented him from doing so. Webber claimed the rated strength capacity of the straps was about 15,000 pounds, and they appeared to be in good condition.

Webber stated that nothing indicated a problem with his load until the accident occurred. Webber had no idea or opinion as to the cause of the accident. The accident started to happen on a curve on an overpass. He first noticed a problem when he looked in his rearview mirror and noticed his load was shifting. He tried to control the load by easing into the left lane, but he never ran up on the shoulder between the lane and the median barrier. Webber denied that he hit the median barrier, or that he made any jerks on his wheel. Webber admitted that the lights of the truck were not on when the accident occurred.

Troy Thompson testified that on November 18, 1987, he and his father were driving south on Highway 59. He stated that it was pretty dark outside. He noticed a "great spark and flash of light" to the left. He then heard a pop and saw the pipe as it came through the car.

Jerry Hoover, a truck driver, testified, by deposition, that he witnessed the accident. He testified that it was dark, and he had the lights of his truck on. He passed Webber's truck and moved over into the center lane; Hoover and Webber were both traveling in the center lane. When Hoover slowed down in traffic, Webber moved to the left lane of traffic. After Webber passed Hoover, Hoover told Webber, on the CB radio, that Webber could come back over to the center lane. When Webber was coming off the bridge, Hoover heard an explosion and saw a spark-like flash and dust. As Hoover reached for his radio to tell Webber that he had a problem, he noticed the pipe starting to shift. Hoover saw Webber proceed from the center lane to the shoulder of the road, but he did not see Webber hit the median barrier.

Sydney Whitfield testified that he was driving his car on Highway 59 when he witnessed the accident. When he first saw the truck, it was traveling in the left lane, next to the median barrier. He did not see the truck change lanes, but it did sway toward the center lane. The truck continued straight, although the road curved to the right. Whitfield claimed the truck then bounced off the median barrier, and he saw sparks and lights flashing. He did not notice any straps breaking on the load.

On cross-examination, Whitfield admitted that he gave a slightly different statement Wade Wallace, an officer with the accident investigation division of the Houston Police Department, testified that on November 18, 1987, he investigated the accident involving the C & H truck. Wallace had 13 years experience as a police officer and 11 years experience in accident investigation. Wallace testified that when he arrived on the scene of the accident, he noticed a 40-foot section of pipe had penetrated Jerry Thompson's car. Based on the physical evidence and statements of the drivers and witnesses, he could find no evidence that the truck hit the median barrier. His opinion was that the straps had broken loose due to "adverse movement of the vehicle on the roadway" or the truck running up on the emergency shoulder. However, a section of approximately nine feet of the median barrier near the scene of the accident had been moved four to six inches, but he attributed the movement of the median barrier to the pipe striking it. In Wallace's opinion, the contributing factors to the accident were Webber's failure to maintain a single lane of traffic and failure to secure the load properly.

to the police officer on the scene of the accident. In his statement to the police, he said he was traveling in the right lane when he noticed the truck weaving on the overpass and then hit the median barrier.

Wallace stated that the lugs of the left front tire of the truck had been eaten away, and the exhaust pipe and fuel tank were also damaged; he attributed that damage to the pipe hitting the truck as it came loose. In addition, the lugs had a gray material in them; initially, Wallace thought the material was concrete, but upon closer examination, he determined it was the coating on the pipes. When shown a picture of the tires on the truck, Wallace admitted that it was a "very good possibility" that the truck had run up against the median barrier; the right tires were covered with dirt, grime, and dust while the left tires were wiped clean as if the left tires had rubbed up against something. After hearing that Webber was driving without his lights on, Wallace stated that "the probability became greater" that the accident happened because the truck hit the median barrier.

Dr. Gary Nelson, an expert on accident reconstruction, testified for the Thompsons. In Nelson's opinion, the strapping of the pipe on the trailer, two on the first two tiers and four over the top, was inadequate. Nelson's understanding of the standard promulgated by the Federal Highway Administration of the Department of Transportation dictated that the load would require 15 to 25 straps. Six straps would have allowed the load to move laterally causing the load to come off the trailer. In addition, Nelson felt the chocks, which were to prevent the pipe from rolling, were too small, anchored poorly, and the wrong shape.

On cross-examination, Nelson admitted he had not examined the accident scene. While inspecting the trailer, he noticed that the buckles used to hook the straps to the trailer were ripped and several lugs on the truck were damaged. He did not conduct any tests on the equipment, chocks, or straps involved in the accident. Furthermore, Nelson was...