Channel 20, Inc. v. World Wide Towers Services, Inc.

• Decision Date: 06 May 1985
• Docket Number: H-84-1120,Civ. A. No. H-83-5023,H-84-919,H-84-965,H-83-5098,H-84-966,H-84-993,H-84-1715 and H-84-2225.,H-84-613
• Citation: 607 F. Supp. 551
• Parties: CHANNEL 20, INC.; et al. v. WORLD WIDE TOWERS SERVICES, INC.; et al.
• Court: U.S. District Court — Southern District of Texas

607 F. Supp. 551

CHANNEL 20, INC.; et al. v. WORLD WIDE TOWERS SERVICES, INC.; et al.

Civ. A. Nos. H-83-5023, H-83-5098, H-84-613, H-84-919, H-84-965, H-84-966, H-84-993, H-84-1120, H-84-1715 and H-84-2225.

United States District Court, S.D. Texas, Houston Division.

April 22, 1985.

As Amended May 6, 1985.

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Joseph F. Archer, Archer, Peterson & Waldner, Houston, Tex., for plaintiffs.

Russell McMains, Edwards, McMains & Constant, Corpus Christi, Tex., Guardian Ad Litem.

Robert G. Taylor, II, Taylor, Hays, Price, McConn & Pickering, Houston, Tex., for World Wide Towers.

Patricia Hair, Crain, Caton, James & Womble, Houston, Tex., for Stainless, Inc.

Diana E. Marshall, Baker & Botts, Houston, Tex., for Harris Corp.

MEMORANDUM AND ORDER

DeANDA, District Judge.

These consolidated diversity actions, which are governed by Texas law, were tried to a jury in February of 1985 for damages arising from the collapse of a 1,900-foot broadcast tower on December 7, 1982. All claims for personal injury arising out of this disaster were settled prior to trial, as were the claims filed by Channel 20, a Houston television station which lost substantial air-time due to the collapse, leaving outstanding the claims resulting from the deaths of the five workers, World Wide Towers' claim for property damage, and related cross-actions among the Defendants. The jury returned a verdict on February 23, 1985, which imposed 100% liability on Defendant Stainless, Inc. for the deaths of five workers. (Stainless was the fabricator of the tower.) Pending before the Court are a number of post-verdict motions, to wit: Defendant Stainless's motions for new trial, for judgment n.o.v., for remittitur, for trial on indemnity issues, and for stay of execution of the judgment; the Plaintiffs' motions for partial new trial and severance, for certification and entry of judgment pursuant to Rule 54(b), F.R. Civ.P., and for judgment on the severed claims; and the motion for judgment n.o.v. of Defendant/cross-Plaintiff World Wide Towers.

We turn first to the motions of Stainless for new trial and for entry of judgment non obstante veredicto. One of the primary thrusts of these motions is that the Court incorrectly charged and instructed the jury on a number of points concerning Stainless's legal status as a general contractor and the concomitant duties thereto. The Court concludes that it correctly instructed and charged the jury because a general contractor who is in control of the premises owes a duty to the employees of subcontractors similar to that owed by an owner or occupier of land to his invitees. Smith v. Henger 148 Tex. 456 226 S.W.2d 425 (1950); also, Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978), overruling in part McKee v. Patterson, 153 Tex. 517 271 S.W.2d 391 (1954). This duty attaches regardless of whether the contractor is in actual physical possession of the premises; actual possession is not a necessary element of "control" so long as there is a right to manage, whether or not it is ever actually exercised. See, American Fidelity & Casualty Co. v. Traders and General Ins. Co., 160 Tex. 554, 334 S.W.2d 772 (1959). Based on the unambiguous provisions of the contract at issue and upon the evidence presented at trial, Stainless was "in control" of the premises based on the "right to manage" test. Since Stainless was in control of the job site within the meaning of the foregoing test, the Court properly instructed the jury that Stainless had a duty (inter alia) to provide a safe work place and safe equipment, including proper inspection of the premises and equipment so as to discover hidden dangerous conditions and to warn the subcontractor or his employees of such conditions. Guidry v. Neches Butane Products Co., 476 S.W.2d 666 (Tex.1972); see also, Hall v. Moveable Offshore, Inc., 455 F.2d 633 (5th Cir.1972). Stainless's argument that it was merely another subcontractor which fabricated the tower is without any substantial support in the record.

A second line of argument is that exemplary damages were improperly awarded for a breach of contract. This contention is ill-founded since the imposition of liability here was not predicated on a plain breach of contract action. Rather, Texas law states that duties which arise pursuant to a contract must be performed with ordinary care and the failure to do so gives rise to a cause of action sounding in negligence. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947); UMC, Inc. v. Coonrad Electric Co., Inc., 667 S.W.2d 549 (Tex.Civ.App.— Corpus Christi 1983, writ ref'd. n.r.e.). In accordance with this aspect of Texas jurisprudence, the jury was instructed as to the pertinent contractual duties, and the jury found that Stainless was negligent in the performance (or non-performance) of these duties which proximately caused the collapse of the tower. While the jury did not find that the negligence of Stainless flowed from any reckless disregard or conscious indifference, the jury did find that Stainless intentionally or consciously failed or refused to perform its general contractor obligations. Such a willful failure to perform the duties of a general contractor, as outlined above, is sufficient to uphold the award of punitive damages. Stainless's "breach of contract" argument simply misses this point.¹

Stainless argues that, in any event, the award of damages to the widows and children of the deceased workers for their mental anguish was legally improper, absent some physical injury to the widows and children. Stainless relies on a number of authorities concerning this point, all of which pre-date the Texas Supreme Court's decision in Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983); see also, Stanford v. McLean Trucking Co., 506 F.Supp. 1252 (E.D.Tex.1981), which effectively presaged Sanchez. The Sanchez court held that persons may recover damages for loss of society and mental anguish which flow from a wrongful death, pursuant to the Texas Wrongful Death Statute, Art. 4671, Tex. Rev.Civ.Stat.Ann. In light of this holding, Stainless's argument to the contrary are to no avail.

Error is alleged by Stainless in the submission of exemplary damage issues on behalf of the estates and on behalf of the widows and children. The gist of the allegation is that the award of exemplary damages to the widows and children and to the estates constitutes a double recovery. A resolution of this question necessarily involves reference to Art. 5525, Tex.Rev.Civ. Stat., which provides in pertinent part that all causes of action arising out of injuries which result in a wrongful death shall survive to and in favor of the heirs and legal representatives and the estate of such injured party and against the person or persons liable for such injuries (emphasis added). It is now well-settled in Texas law that the death of the injured party does not bar a recovery of exemplary damages by the estate itself. Hofer v. Lavender, 679 S.W.2d 470, 472 (Tex.1984); Castleberry v. Goolsby Building Corp., 617 S.W.2d 665 (Tex.1981). Furthermore, under the Texas Wrongful Death Act and the state's survival statute, two separate and distinct causes of action may arise in a wrongful death case. The former statute created a new cause of action in favor of certain named survivors (see e.g., Art. 4675, Tex.Rev.Civ. Stat.Ann.), while the latter did not create a new cause but rather kept alive the cause of action which the deceased might have had (Art. 5525, supra). Hence it is clear that the estate of a deceased person is a legal entity which is separate and distinct from those of the widows and other survivors of the deceased. It necessarily follows that no double recovery is present here; the estate may recover both actual and exemplary damages on behalf of the deceased workers, and the survivors may also recover both, in their own right. These two classes of Plaintiffs are not only legally distinct and separable, but each is entitled to particular elements of damages.² See Hofer, supra, esp. at 476; also, Stiles v. Union Carbide, 520 F.Supp. 865 (S.D. Tex.1981).

Stainless urges a number of points concerning foreseeability, legal duty, causation and sufficiency of the evidence which are either disposed of by previous portions of this opinion or are so lacking in merit as to warrant no discussion other than a summary rejection. Stainless does, however, raise one point of substance. The jury awarded $5,000,000.00 to the estates in punitive damages but awarded no actual damages for the men's conscious pain and suffering. It is axiomatic that punitive damages must bear some reasonable relationship to, and be supported by, the imposition of actual damages. Therefore, the motion for new trial must be granted in part. This point will be discussed in greater detail infra.

Finally, Stainless contends in its motions for new trial and for judgment n.o.v. that it is entitled to full indemnification from Defendant World Wide (an erector company retained as a subcontractor by Stainless which employed the deceased men and which entered into an indemnity agreement with Stainless). This Court previously ruled herein, at 596 F.Supp. 928, that the indemnity provision at issue did not clearly and unequivocally express any obligation on the part of World Wide to protect Stainless from the consequences of its own negligence, nor does the provision indemnify Stainless from the consequences of any negligence or fault concurrently attributable to World Wide and Stainless. In light of the jury's findings, made pursuant to proper charges and instructions, it is inconceivable that 100% of the negligence or fault attributed to Stainless can somehow be transmogrified into the sole negligence or fault of World Wide. Despite the fact that the Texas Workers Compensation Act, Art. 8306, Sec. 3, allows such an action seeking contractual indemnification to be maintained (as a...