Elbaor v. Smith, No. 2-90-027-CV

CourtCourt of Appeals of Texas
Writing for the CourtFARRIS
Citation845 S.W.2d 282
PartiesJames E. ELBAOR, M.D., Appellant, v. Carole Mercer SMITH, Appellee.
Docket NumberNo. 2-90-027-CV
Decision Date10 April 1991

Page 282

845 S.W.2d 282
James E. ELBAOR, M.D., Appellant,
v.
Carole Mercer SMITH, Appellee.
No. 2-90-027-CV.
Court of Appeals of Texas,
Fort Worth.
April 10, 1991.

Page 283

Shannon, Gracey, Ratliff & Miller, and John Hill Cayce, Jr., E. Earl Harcrow, and D. Robert Jones, Fort Worth, for appellant.

Dixie & Mauzy, and George C. Dixie, Aglaia D. Mauzy, and Calvin B. Almquist, Dallas, for appellee.

Before FARRIS, LATTIMORE and MEYERS, JJ.

OPINION

FARRIS, Justice.

Smith filed a medical malpractice suit against six defendants, voluntarily dismissed two, entered into Mary Carter Agreements with three, and after a favorable jury verdict, was granted a judgment for $1,872,848.62 against the remaining defendant, Elbaor. Elbaor raises three points on appeal: the court erred in overruling his motion to dismiss the settling defendants because Mary Carter Agreements are against public policy, the evidence is factually insufficient to sustain the jury finding that he was eighty-eight percent liable for Smith's injury and his co-defendant, Dr. Syrquin, was only twelve percent liable, and the court erred in failing to submit Smith's negligence to the jury. We overrule each of Elbaor's points of error and affirm the judgment of the trial court.

We would have to declare Mary Carter Agreements void as against public policy to sustain Elbaor's first point. Elbaor argues, forcefully, that the agreements are controversial, pointing to the numerous critics of their use; however, whether the agreements should be declared void is an issue which we hold, in agreement with one of our sister courts, requires resolution by the supreme court. See Stein v. American Residential Management, 781 S.W.2d 385, 389 (Tex.App.--Houston [14th Dist.] 1989), writ denied per curiam, 793 S.W.2d 1 (Tex.1990). We decline to ignore the authorities which either expressly or impliedly recognize the legitimacy of Mary Carter Agreements and overrule the first point.

We overrule Elbaor's second point of error because it urges us to do what we may not, substitute our judgment for that of the jury in evaluating the credibility of contradictory testimony. In his second point, Elbaor complains the evidence was insufficient to support the jury finding that eighty-eight percent of the negligence causing Smith's injury was his, while the finding that only twelve percent of the negligence could be attributed to Syrquin was against the great weight and preponderance of the evidence. In his...

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1 practice notes
  • Elbaor v. Smith, No. D-1163
    • United States
    • Supreme Court of Texas
    • December 2, 1992
    ...are void as contrary to public policy. The trial court rendered judgment in favor of the plaintiff, and the court of appeals affirmed. 845 S.W.2d 282. We hold that the trial court committed reversible error in refusing to submit an issue on the plaintiff's contributory negligence. We furthe......
1 cases
  • Elbaor v. Smith, No. D-1163
    • United States
    • Supreme Court of Texas
    • December 2, 1992
    ...are void as contrary to public policy. The trial court rendered judgment in favor of the plaintiff, and the court of appeals affirmed. 845 S.W.2d 282. We hold that the trial court committed reversible error in refusing to submit an issue on the plaintiff's contributory negligence. We furthe......

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