Critical Path Res., Inc. v. Cuevas ex rel. Estate

• Decision Date: 29 March 2018
• Docket Number: NO. 14-16-00036-CV,14-16-00036-CV
• Citation: 561 S.W.3d 523
• Parties: CRITICAL PATH RESOURCES, INC., Appellant v. Richard CUEVAS, Individually and on Behalf of the Estate of Nicolas Oscar Cuevas, Daniel Cuevas, Nicolas Cuevas, Maria Cuevas, Guadalupe Torres, Blanca Rodriguez, Luis de los Santos, Blake Smith, and Tamatha Smith, Appellees
• Court: Texas Court of Appeals

561 S.W.3d 523

CRITICAL PATH RESOURCES, INC., Appellant

v.Richard CUEVAS, Individually and on Behalf of the Estate of Nicolas Oscar Cuevas, Daniel Cuevas, Nicolas Cuevas, Maria Cuevas, Guadalupe Torres, Blanca Rodriguez, Luis de los Santos, Blake Smith, and Tamatha Smith, Appellees

NO. 14-16-00036-CV

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

Opinions filed March 29, 2018

Rehearing En Banc Denied December 13, 2018

Howard L. Close, E. Marie Jamison, R. Russell Hollenbeck, Houston, TX, for Appellant.

Ryan Pigg, Andrew Dao, Anthony Glenn Buzbee, William David George, Houston, TX, for Appellees.

Panel consists of Justices Christopher, Busby, and Jewell

OPINION

J. Brett Busby, Justice

Appellees Richard Cuevas, Daniel Cuevas, Guadalupe Torres, Luis de los Santos, and Blake Smith, and decedent Nicolas Oscar Cuevas (Nico), were employees of J. V. Industrial Companies, Ltd. (JVIC) working as boilermakers during a turnaround at the Memphis, Tennessee refinery owned and operated by Valero Energy Corporation and Valero Refining Company—Tennessee, L.L.C. (collectively Valero). Daniel, Nico, and Richard are brothers. Daniel, Nico, and Torres were working on an elevated platform to install a blind in a flare line from which flammable substances had not been cleaned. An explosion occurred and all three were severely burned; Nico died from his burns four days later. Richard, Santos, and Smith, all working on the ground near the platform, were injured by the explosion.

Appellees, which include the Cuevas brothers' parents and Smith’s and Torres’s spouses, sued numerous defendants. One of the defendants is appellant Critical Path Resources, Inc., which was hired to schedule work during the turnaround. All defendants except Critical Path settled prior to trial. Following a lengthy trial, the jury found in favor of appellees. The jury found that Critical Path was six percent responsible for the explosion and resulting injuries. The trial court subsequently signed a judgment based on the jury’s verdict awarding appellees "the total sum of $8,466,656.07 in damages, including prejudgment interest, over and against [Critical Path] for negligence."

Critical Path raises four issues in this appeal. In its first and second issues, Critical Path argues that the evidence is legally and factually insufficient to support the jury’s finding that Critical Path (1) breached its duty of care, and (2) that Critical Path’s acts or omissions proximately caused the injuries suffered by appellees. Because there is legally and factually sufficient evidence that Critical Path breached its duty to schedule the isolation and cleaning of the flare line and that the breach was a proximate cause of appellees' injuries, we overrule Critical Path’s first two issues.

In its third issue, Critical Path contends that the trial court abused its discretion when it refused to submit a new and independent cause instruction in the jury charge. Because (1) Critical Path’s acts and omissions had not run their course and been completed so that they did not actively contribute to the explosion and injuries, and (2) the allegedly intervening acts and omissions risked the same harm and were the very hazard that made Critical Path’s scheduling failure negligent, we conclude the trial court did not abuse its discretion when it rejected Critical Path’s requested instruction.

In its fourth issue, Critical Path challenges the sufficiency of the evidence supporting some of the economic and non-economic damages found by the jury. We conclude that most of the jury’s damage awards are supported by sufficient evidence, and we therefore affirm the judgment on the claims of most appellees. Because the evidence is factually insufficient to support the total amount of future medical damages awarded to Daniel, and the total amount of non-pecuniary damages awarded to Mr. and Mrs. Cuevas, we suggest a remittitur to an amount supported by the evidence. If a remittitur of the unsupported damages is timely filed, we will modify the trial court’s judgment in part and affirm as modified. If it is not, we will reverse the judgment as to the claims of Daniel and Mr. and Mrs. Cuevas and remand those claims for a new trial.

BACKGROUND

A. Mike Rivers of Critical Path serves as master scheduler for a turnaround of Valero’s Memphis refinery.

Valero owns and operates a refinery in Memphis, Tennessee. Refineries periodically schedule turnarounds: a period of time when the refinery owner shuts down part or all of the refinery to make repairs, perform maintenance and upgrades, or construct new units. Valero scheduled a turnaround for half of the Memphis refinery during February and March 2012. Valero planned for the turnaround to last 32 days at a total cost of more than $60 million. Approximately half of the projected cost was for materials and labor to be used during the turnaround. The remainder of the cost consisted of profits that would be lost as a result of shutting down half of the refinery for the duration of the turnaround. Because Valero loses nearly one million dollars in profit each day of the turnaround, there is a tremendous emphasis on getting the work done as quickly and efficiently as possible.

A refinery turnaround can be divided into five phases: (1) planning, (2) shutdown, (3) actual turnaround work, (4) start-up, and (5) post-turnaround. In 2010, Valero assembled a team to plan and manage the turnaround. Valero designated Ray Hankins, a Valero employee, as the turnaround manager. Hankins was in charge of Valero employees assigned duties related to the turnaround and of contractors hired to do much of the planning and work involved.

Valero hired Dennis Hodges of UP Professional Solutions as the lead planner for the turnaround. Hodges, who reported directly to Hankins, had numerous duties. During the planning phase of the turnaround, Hodges was responsible for tracking the progress of the different planners planning the jobs to be done during the turnaround, ensuring that they were meeting the planning milestones set by Valero management. Hodges’s role shifted once turnaround work started; he then tracked the progress of the work, ensuring that it was progressing according to the specifications and the turnaround plan. Hodges’s duties included reminding people involved in the turnaround of the milestones set by Valero management.

Valero hired Mike Rivers of Critical Path as the master scheduler¹ for the project early in 2011. Valero paid Critical Path $97.95 per hour for a master scheduler as well as a $90 per diem. Rivers also reported directly to Hankins. Although Rivers testified that he was nothing more than a data entry clerk who passively waited for information to be handed to him and then entered it into a computer program, other evidence—including other parts of his own testimony—showed that he had additional duties.

Rivers was responsible for maintaining the master schedule for the entire turnaround through a computer program, Primavera Project Planner.² Valero’s practice when planning a turnaround was to place every detail of any work to be done on the Primavera schedule. Rivers worked with the schedulers for the contractors involved in the turnaround and was responsible for adding their schedules to the master schedule. Rivers’s responsibilities did not stop there, however. The turnaround manager, lead planner, and master scheduler worked together as a team to plan and schedule the turnaround. They met frequently to discuss the planning, the work, its progress, and any problems they encountered. Rivers, as the master scheduler, had to possess an understanding of the planner’s job so that he could interact effectively and efficiently with the other members of the planning team.

During trial, Rivers agreed that it was his job as the turnaround master scheduler to "identify the tasks, figure out if there were any predecessor tasks, ask for plans, and put them in the schedule and then keep the schedule." To perform his duties as master scheduler, Rivers needed to understand the jobs being done during the turnaround, the tasks associated with each of those jobs, the policies and procedures involved in the jobs, the duration of the tasks, and the resources required to perform them. He also needed to understand the job logic associated with the jobs planned for the turnaround so that he could figure out if there were predecessor tasks required. Rivers would then ask for the plans for any predecessor tasks and add them to the master schedule in the proper order and with adequate time for them to be performed. If Rivers did not get the information he needed, he was supposed to raise the issue with management. According to Rivers, there were regular discussions about job logic to make certain the tasks were scheduled in the proper order.³ Rivers testified that these discussions would continue until the team reached a conclusion on the topic, and he would ask questions if he did not understand. Rivers also testified that if predecessor tasks are not scheduled, it can throw the turnaround off schedule. According to Rivers, getting the job logic right before importing items into the Primavera program is crucial to completing a turnaround on time, which demonstrates the importance of job planning and scheduling.

Rivers summarized his job during the planning stage of the turnaround as receiving and importing job plans into the Primavera system, "working on the logic, working with the planners to make sure that the logic is correct, [and] attending various meetings." The meetings included weekly planning meetings with turnaround management. During at least two of these meetings, Rivers was instructed to obtain assistance from Valero writer/trainer personnel regarding scheduling. According to Rivers, the writer/trainers were Valero operations personnel with knowledge of Valero’s procedures. Rivers testified that he did not recall seeking out that assistance. More specifically, despite his awareness...