Cavnar v. Quality Control Parking, Inc.

• Decision Date: 07 June 1984
• Docket Number: No. A14-83-166CV,A14-83-166CV
• Citation: 678 S.W.2d 548
• Parties: Linda CAVNAR, Kathy Cavnar, and Steve Cavnar, Individually and as heirs of the Estate of Geraldine Cavnar, and River Oaks Bank & Trust Co., as Administrator of the Estate of Geraldine Cavnar, Appellants and Cross-Appellees, v. QUALITY CONTROL PARKING, INC., and H.E. (Gene) White, Individually and d/b/a Jack Turner--Valcon Securities and Quality Control, Cross-Appellants and Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 548

678 S.W.2d 548

Linda CAVNAR, Kathy Cavnar, and Steve Cavnar, Individually and as heirs of the Estate of Geraldine Cavnar, and River Oaks Bank & Trust Co., as Administrator of the Estate of Geraldine Cavnar, Appellants and Cross-Appellees, v. QUALITY CONTROL PARKING, INC., and H.E. (Gene) White Individually and d/b/a Jack Turner--Valcon Securities and Quality Control Cross-Appellants and Appellees.

No. A14-83-166CV.

Court of Appeals of Texas Houston (14th Dist.).

June 7, 1984.

Michol O'Connor, John O'Quinn, O'Quinn & Hagans, Houston, for appellants and cross-appellees.

James D. Wise, Jr., Brown, Sims & Ayre, Randall D. Wilkins, Rowe & Young, Houston, for cross-appellants and appellees.

Before J. CURTISS BROWN, C.J., and SEARS and CANNON, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

This is a wrongful death action predicated upon common law negligence and the Texas Wrongful Death Statute. TEX.REV.CIV.STAT.ANN. art. 4671 (Vernon Supp.1982-1983), and the Texas Survival Statute, TEX.REV.CIV.STAT.ANN. art. 5525 (Vernon 1958). The fatal accident occurred in a parking lot adjacent to a nightclub called the Ritz. The decedent, Geraldine Cavnar, was a pedestrian walking across a parking lot as she left the Ritz on the night of November 17, 1978. She was accompanied by her adult daughter, Kathy Cavnar and a friend. While the three were crossing the lot, a van backed over Geraldine Cavnar. The van then moved forward and ran over her a second time. Mrs. Cavnar died in the hospital eight days later. At trial there was evidence that the van was driven by Moshen Kakavand, a valet parking attendant employed by Quality Control Parking, Inc. which provided valet parking service at the Ritz.

Linda, Kathy and Steve Cavnar, the children of Geraldine Cavnar, instituted this suit. The River Oaks Bank & Trust Co. joined in the suit as the administrator of the Estate of Geraldine Cavnar to recover for her conscious pain and suffering, medical expenses, and funeral expenses. These plaintiffs sued three defendants: 1) the owner of the business premises, Zenon, Inc., doing business as the Ritz, 2) the valet parking service which did business under the name Quality Parking Control, including others; and 3) the valet driver, Moshen Kakavand.

The jury found that defendant Kakavand was negligent in failing to keep a proper look out, in driving backwards under circumstances then existing, and in running over Mrs. Cavnar twice, and that each of these acts of negligence was a proximate cause of the occurrence in question. The jury also found that Quality Parking Control was negligent in hiring Moshen Kakavand, in failing to train Moshen Kakavand, in failing to isolate the valet parking activity from the area where patrons who self-parked their cars would move about, in failing to give adequate warnings and instructions for the benefit of pedestrians concerning the valet parking activities, in failing to give adequate warnings and instructions concerning where patrons should walk going to and from their automobiles, in using parking procedures which encouraged unsafe movement of vehicles being valet parked, and in failing to properly supervise the valet parking. Each of said acts of the Quality Parking Control was found by the jury to have been a proximate cause of the occurrence in question. The Ritz was also found negligent, and that negligence was a proximate cause of the occurrence in question. Finally, the jury found that Mrs. Cavnar was negligent in her lookout and in walking where she did, and each of her acts of negligence was a proximate cause of the occurrence in question. The jury attributed negligence to each of the parties as follows:

                The Ritz                           18%
                Eugene White and Quality Control
                  Parking                          40%
                Moshen Kakavand                    37%
                Geraldine Cavnar                    5%
                Total                             100%
                

The jury found that Kathy Cavnar suffered $175,000 in damages for loss of companionship and that Kathy Cavnar also suffered $100,000 in mental anguish damages. Likewise, the jury found that Linda and Steve each suffered $75,000 of damages for loss of companionship and that each suffered $50,000 mental anguish damages. The jury awarded each of the three children $25,000 for loss of services, advice, counsel, and contributions of a pecuniary value.

The jury further found that the reasonable expense of the necessary medical and hospital care rendered to Geraldine Cavnar was $20,000, that she suffered pain and anguish in the amount of $20,000, and that her reasonable funeral and burial expenses were $3,000.

Finally, the jury awarded $1,000,000 exemplary damages against the White defendants The trial court entered judgment in accordance with the jury findings except that the trial court disallowed damages for loss of companionship against Quality Parking Control, Inc., and H.E. (Gene) White. The trial court stated in its final judgment that it would have awarded loss of companionship damages if they were recoverable under Texas law. The trial court also denied recovery for pre-judgment interest.

upon their finding that the White defendants' conduct constituted a heedless and reckless disregard of the rights of others affected by it and that such conduct was a proximate cause of the occurrence in question.

This appeal and cross-appeal involves only the plaintiffs and the defendants, Quality Parking Control, Inc. and H.E. White. The other defendants did not perfect appeal and the judgment against them is final. The issues addressed in this opinion concern: 1) the recoverability of loss of companionship damages in a wrongful death action by children for the death of a parent; 2) the legal sufficiency of the evidence to support the finding of negligence by Geraldine Cavnar; 3) the recoverability of prejudgment interest on medical expenses and pain and suffering; 4) whether statements by plaintiffs' counsel improperly apprised the jury of the legal effect of their answers to special issues during closing argument; 5) whether the trial court abused its discretion in striking for cause three veniremen who stated that they could not award damages of $1,000,000 in a wrongful death case; 6) whether statements of plaintiffs' counsel during voir dire informed the jury of the fact that Quality Parking Control was covered by liability insurance; and 7) the sufficiency of the evidence to support an award for mental anguish damages. We reverse and render the portion of the judgment which denies recovery for loss of companionship damages. We reverse and render that portion of the judgment which reduces death damages awarded under the Texas Wrongful Death Statute by the five percent comparative negligence of Geraldine Cavnar. We affirm the remainder.

This opinion is divided into two parts. The first part will address the points of error raised by appellants, Linda Cavnar, Kathy Cavnar, Steve Cavnar, and River Oaks Bank & Trust Co. The second part will address the cross-points of error raised by cross-appellants, Quality Parking Control and H.E. "Gene" White Individually and d/b/a Jack Turner--Valcon Securities and Quality Control.

PART I

Appellants contend in their first point that the trial court erred in denying damages for loss of companionship. The trial court denied these damages, not because it believed they were unsupported by the evidence, but because these kind of damages were not recoverable under the Texas Wrongful Death Statute when judgment was signed on December 22, 1982. March v. Walker, 48 Tex. 372, 375 (1877); Bedgood v. Madalin, 600 S.W.2d 773 (Tex.1980). Since that time the Supreme Court has held in Sanchez v. Schindler, 651 S.W.2d 249, 254 (1983), that a plaintiff may recover under the Wrongful Death Statute for loss of society and companionship damages and for mental anguish damages for the death of his or her minor child. The court further stated that the holding applies to all causes still in the judicial process including cases on appeal. This holding has been followed in Madisonville I.S.D. v. Kyle, 658 S.W.2d 149 (Tex.1983) and Gulf States Utilities Co. v. Reed, 659 S.W.2d 849 (Tex.App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.).

Appellee argues that the Supreme Court in its reinterpretation of the Wrongful Death Statute in Sanchez intended to carve out a narrow exception to the long standing rule that the measure of damages under the statute is restricted to pecuniary loss. Appellee asserts the Supreme Court only excepted parents' claims for damages for the death of a child from this rule. And because the plaintiffs in this cause are children claiming damages for the death of a parent, they fall outside the exception.

We reject this view and interpret the Supreme Court's opinion in Sanchez to constitute a complete rejection of the pecuniary loss rule. This is evidenced by the court's statement:

This court originally imposed the pecuniary loss rule as a limitation of the damages recoverable under the Texas Wrongful Death Act .... It is therefore logical for this court to now act in response to the needs of a modern society, and abolish the antiquated rule in favor of recovery of loss of society and mental anguish. Sanchez v. Schindler, 651 S.W.2d at 253.

The court's rationale for rejecting the pecuniary loss rule was 1) that the justification for the rule (i.e. the uncertain nature of nonpecuniary losses and the fear of excessive verdicts) is no longer valid because the judicial system has adequate safeguards to prevent recovery of damages based on sympathy or prejudice; and 2) that it is unrealistic to separate injury to the familial relationship from emotional injury. Id. at 253. This rationale dictates that every class of beneficiary under the statute (parent, child, or spouse of the deceased) be allowed recovery for emotional injury. As Justice Ray stated in his concurring opinion on motion for rehearing: "Legal symmetry...