David Mora, Tex. Sterling Constr. Co. v. Valdivia

• Decision Date: 17 July 2019
• Docket Number: No. 04-17-00565-CV,04-17-00565-CV
• Citation: 595 S.W.3d 713
• Parties: David MORA, Texas Sterling Construction Co. a/k/a Texas Crushed Concrete, and Sterling Construction Company, Inc. a/k/a Sterling Delaware Holding Company, Inc., Appellants v. Martin VALDIVIA, Sr. and Maria Cervantes Valdivia, both Individually and as Sole Heirs of the Estate of Martin Valdivia, Jr., Deceased, Appellees
• Court: Texas Court of Appeals

595 S.W.3d 713

David MORA, Texas Sterling Construction Co. a/k/a Texas Crushed Concrete, and Sterling Construction Company, Inc. a/k/a Sterling Delaware Holding Company, Inc., Appellants

v.Martin VALDIVIA, Sr. and Maria Cervantes Valdivia, both Individually and as Sole Heirs of the Estate of Martin Valdivia, Jr., Deceased, Appellees

No. 04-17-00565-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: July 17, 2019

OPINION

Patricia O. Alvarez, Justice

This appeal arises from a personal injury suit filed after two constructions workers were traveling in their personal pickup truck, from San Antonio to Austin, immediately behind their foreman, and an unsecured toolbox fell out of their foreman's trailer. The workers stopped to retrieve the toolbox and were struck by a third vehicle; one worker was injured and the other was killed. Appellees, Martin Valdivia Sr. ("Martin Sr.") and Maria Cervantes Valdivia brought suit individually and as the sole heirs of the estate of their teenage son, Martin Valdivia Jr. ("Martin Jr."). Appellees asserted claims for negligence and gross negligence against Appellants Texas Sterling Construction Co. ("Texas Sterling"), Texas Sterling's parent Sterling Construction Company, Inc. ("SCC"), and Texas Sterling's foreman David Mora (collectively, "the Sterling Appellants").

The jury found the driver of the third vehicle was neither negligent nor responsible for any percentage of responsibility for the accident. The jury also found Texas Sterling was grossly negligent based on an act or omission by Foreman David Mora and Safety Director José González. The jury awarded $9,543,000.00 in actual damages and $2,800,000.00 in exemplary damages.

On appeal, the Sterling Appellants contend the evidence is legally and factually insufficient to support the jury's findings that (1) Martin Sr. and Martin Jr. were not in the course and scope of their employment at the time of the accident; (2) the driver of the third vehicle was neither negligent nor partially responsible for the accident based on the defense of sudden emergency; and (3) Texas Sterling was grossly negligent based on an act or omission by David Mora and José González. The Sterling Appellants also contend the trial court erred in admitting the police accident report while redacting portions of the same and excluding portions of San Marcos Police Officer Jeremy Sembera's testimony. We affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prior to jury selection, the Sterling Appellants conceded that Texas Sterling, SCC, and Mora were responsible for the accident and stipulated to their negligence alleged in the appellees' petition; therefore, the jury only determined negligence as to Norberto Ruelas Reyes. Texas Sterling and SCC also stipulated to their negligence in failing to establish a cargo securement policy and failing to properly train their employees.¹ Therefore, we limit our summary of the evidence to that necessary to the disposition of the issues on appeal.

A. The Accident

Martin Sr. and Martin Jr. (the Valdivias) worked for Texas Sterling installing bridges, sidewalks, and driveways. David Mora was the Valdivias' crew foreman.

Texas Sterling, the subcontractor on an Austin highway construction project (the "MoPac project"), assigned Mora's crew to perform the work. Each week, the crew traveled to Austin on Monday morning and returned to San Antonio on Friday or Saturday. Texas Sterling provided crew members hotel rooms and a per diem. Texas Sterling provided transportation for crew members in a company van; alternatively, crew members could opt to ride with Mora in his company pickup truck or drive their personal vehicles to Austin. All crew members were paid an hourly wage based on hours worked at the job site; crew members were not paid for travel time or personal travel costs, such as gas, mileage, or auto insurance. Employees' travel plans and routes were not controlled by Texas Sterling; the sole requirement was that employees arrive at the jobsite at 7:00 a.m., when their shift began.

1. The Accident

On January 19, 2015, the second week of the MoPac project, in the early morning hours, Martin Jr. and Martin Sr. elected to drive in Martin Sr.'s personal Ford F-150 pickup truck. Although not required to do so by Texas Sterling, Martin Sr. elected to meet Mora at the Texas Sterling San Antonio yard and follow him to Austin. Mora was towing a flat-bed trailer containing a large, 400-pound, eight-foot by four-foot by three-foot, empty, wooden toolbox. Mora constructed the toolbox out of Texas Sterling material to hold shovels, wood, saws, and other materials. The trailer also contained loose boards, bricks, and other materials.

Martin Sr. was following Mora, at approximately sixty-five miles-per-hour, in the middle lane of traffic on Interstate Highway 35 North, at approximately 5:52 a.m., when the toolbox fell from Mora's trailer. Martin Sr. pulled over to the emergency shoulder on the right side of the roadway, exited his pickup truck, and attempted to retrieve the toolbox. Martin Jr. also exited the pickup truck. A white van swerved to avoid the toolbox and came to a stop in the left shoulder lane. A Chevy Tahoe, driven by Reyes, originally swerved to the left to avoid the toolbox, but upon seeing a person, turned to the right. Reyes clipped the corner of the toolbox, and collided with Martin Sr.'s truck, injuring Martin Sr. and killing Martin Jr. on impact. As vehicles continued to try and avoid the toolbox, a vehicle struck the white van in the left emergency lane and two eighteen-wheelers "pulverized" the wooden toolbox.

2. The Investigation

As San Marcos Police Officer Daniel Cook was traveling home after his shift that morning, he drove by the scene less than a minute after the accident. Officer Jeremy Sembera and Commander Christopher Tureaud relieved Officer Cook and took over the investigation. The officers interviewed witnesses, took photographs and measurements, and ultimately concluded Mora's unsecured toolbox was the contributing cause of the accident.

At trial, Mora explained, "I thought—we thought we'd nailed [the toolbox], but we never strapped it down. We never strapped it." Mora further testified he worked on several jobsites for Texas Sterling and was never informed by the superintendent, or any other Texas Sterling or SCC supervisor, "that nailing [was] the inappropriate use of a securement with a box because it can come out when you're traveling down the roadway." Although Mora understood, by the time of trial, such methods were unacceptable, he did not know the toolbox was improperly secured at the time of the accident. Mora also acknowledged the trailer lacked a rear tailgate to prevent items from falling off the back and that he did not attempt to secure any other materials in the trailer. Texas Sterling never provided any training regarding installation of items or securement on a trailer. Mora further testified the only "securement securing" policy he remembers seeing or signing for Texas Sterling was after the accident.

Texas Sterling and SCC sent a team of officers and supervisors to the scene consisting of (1) José González, Texas Sterling's Corporate Safety Director and SCC's Safety Professional; (2) Rob Mitchell, Texas Sterling's Division Safety Manager; (3) Nick Kakasenko, SCC's Vice President of Safety and Health; (4) Greg McVey, Texas Construction's Vice President of Safety Issues; and (5) Clint Warren, Texas Sterling's South Texas Operations Manager. Based on their investigation, interviews, measurements, and photographs, the team "came to the conclusion that [the accident] was not work related, so we did not report" either Martin Jr.'s death or Martin Sr.'s injuries to OSHA.

[W]e went through all the different scenarios, when it happened, where it happened, where they were going, and we determined that it was a work—that it was not a work-related incident.

Additionally, González testified that, in his position as corporate safety director and safety professional, he was "the professional who [made] those determinations for the company that—whether an employee is or is not in the course and scope of their employment."

Although the same team notified Texas Sterling's risk management department of their determination of course and scope of employment, Texas Sterling still reported the "on-the-job" claims to its workers' compensation carrier, Hartford Insurance Company. Hartford denied the claims because the Valdivias were "traveling to and from work," a noncompensable claim under the Workers' Compensation Act. Texas Sterling did not appeal Hartford's determination. Several supervisors, including González and Kakasenko, testified they agreed with Hartford's determination the Valdivias were not in the course and scope of their employment at the time of the accident.

B. The Charge of the Court

The first issue before the jury was whether the Valdivias were in the course and scope of their employment with Texas Sterling at the time of the accident on January 19, 2015. The jury found they were not in the course and scope of their employment at the time of the accident.

The second issue before the jury was negligence. The Sterling Appellants conceded negligence as to Texas Sterling, SCC, and Mora; however, the jury was asked to determine whether Reyes, the driver of the Chevy Tahoe, proximately caused the accident. The jury answered "No." The jury was also asked to apportion percentages of responsibility to those parties found to have caused or contributed to the accident. Over the Sterling Appellants' objection, the trial court included an instruction on "sudden emergency." The jury found Reyes did not bear any percentage of responsibility and apportioned the liability as follows: Texas Sterling 65%, SCC 30%, Mora 5%, and Reyes 0%. Lastly, the jury found the harm to Martin Sr. resulted from the gross negligence of Mora and González and that their gross negligence was attributable to...