Hyundai Motor Co. v. Alvarado, 04-92-00387-CV

Citation989 S.W.2d 32
Decision Date25 November 1998
Docket NumberNo. 04-92-00387-CV,04-92-00387-CV
PartiesProd.Liab.Rep. (CCH) P 15,417 HYUNDAI MOTOR COMPANY; Hyundai Motor America, Inc.; and Port City Hyundai, Inc., Appellants, v. Mario ALVARADO, Appellee.
CourtCourt of Appeals of Texas

Ruth Greenfield Malinas, David M. Prichard, Ball & Weed, P.C., Thomas H. Crofts, Jr., Crofts, Callaway & jefferson, P.C., San Antonio, David E. Keltner, Jose, Henry, Brantley & Keltner, L.L.P., Keith D. Calcote, Haynes and Boone, L.L.P., Fort Worth, for Appellant.

Steve T. Hastings, Huerta, Hastings & Allison, Rose Rivera Vela, Barger & Moss, L.L.P., Corpus Christi, Rebecca E. Hamilton Before PHIL HARDBERGER, Chief Justice, ALMA L. LOPEZ, Justice and BILL J. STEPHENS, Justice. 1

Todd W. White, White, White & Hamilton, P.C., Rockwall, Guy H. Allison, The Allison Law Firm, Corpus Christi, for Appellee.

OPINION

PHIL HARDBERGER, Chief Justice.

This product liability suit against an automobile manufacturer, Hyundai, 2 resulted in a jury verdict of $18 million. The suit was premised on the failure of a seatbelt to restrain Mario Alvarado ("Mario"), an occupant of a vehicle during an automobile accident. As a result of the injuries he sustained in the accident, Mario is permanently paralyzed from his mid-chest downwards. The jury found against Hyundai on liability, but awarded only actual damages, rejecting Mario's assertions of gross negligence.

Hyundai appeals on nine points of error. We affirm the judgment, as modified.

PRIOR LEGAL HISTORY

This is an old case that appears destined to take a decade to resolve. It has already been the subject of two Texas Supreme Court decisions. The car accident and injury occurred in 1989. The jury rendered its verdict and judgment was entered in 1992. Today, in 1998, this court, for the first time, addresses Hyundai's appellate points on the merits.

Mario first filed his suit in Webb County, where the accident occurred. Mario alleged design defect, inadequate warnings, and inadequate instructions regarding the seatbelts, as well as common-law negligence and gross negligence. Hyundai moved for partial summary judgment, asserting that the claims relating to the seat belt inadequacies were all preempted by the federal Motor Safety Act. The trial court granted the motion. Discouraged by that ruling, Mario sought to escape its effects by taking a non-suit in Webb County and filing a subsequent suit relating to the same occurrence in Duval County.

The Webb County trial judge ruled that its non-suit order was with prejudice to the claims adjudicated by the partial summary judgment. On appeal, this court disagreed, concluding that the dismissal should have been without prejudice. Alvarado v. Hyundai Motor Co., 885 S.W.2d 167, 175 (Tex.App.--San Antonio 1994), rev'd, 892 S.W.2d 853 (1995). The Texas Supreme Court reversed this court, holding that the non-suit order was with prejudice, but the Court remanded the case to this court to consider whether the Webb County trial court erred in ruling that the claims were preempted by federal law. Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex.1995).

On remand, this court held that there was neither express nor implied preemption of the claims, and we reversed the Webb County judgment. Alvarado v. Hyundai Motor Co., 908 S.W.2d 243 (Tex.App.--San Antonio 1995), aff 'd, 974 S.W.2d 1 (Tex.1998). The Texas Supreme Court affirmed our judgment, also concluding that the claims were not preempted by federal law. Hyundai Motor Co. v. Alvarado, 974 S.W.2d 1 (Tex.1998).

We now address Hyundai's nine points of error on appeal from the Duval County judgment.

FACTUAL HISTORY

While some of the factual evidence was disputed, there was ample evidence, if believed, to establish the following general facts.

Mario, a high school student, was injured on February 17, 1989, while riding as a passenger in the front seat of a Hyundai Excel when it overturned. The driver of the Excel, Vicente Reyes ("Reyes"), lost control while passing another vehicle on a rain-slick highway near Laredo in Webb County. In addition to Reyes and Mario, two additional passengers were in the back seat of the Excel Fidel Alvarado, III and Marcus Ruiz. Only Mario was seriously injured.

The Excel's seatbelt restraint system was a "two-point" system, which did not include a lap belt. 3 Mario was wearing his seatbelt restraint at the time of the accident. During the accident, the Excel's sunroof opened, and the restraint system did not restrain Mario, who was thrown from the car. Mario sustained head injuries, causing him to be a permanent paraplegic.

Mario alleged, and the jury found, that the Excel was a defective automobile and that its seatbelt restraint system did not restrain. There are sufficient facts to uphold the verdict.

At the time the Excel was made (1988), no other manufacturer was making a car with a sunroof and only a two-point restraint system. Even without a sunroof, a car with a two-point system was tested by General Motors in 1976, and General Motors reported that without a lap belt, a dummy was completely ejected during a rollover. Swiss, Swedish, Canadian, and Australian studies, as well as various other articles in government documents, all set forth the conclusion that ejection is significantly more frequent in cars with only two-point restraint systems, and lap belts make a critical difference in rollovers. The design engineer for the Excel, who decided not to put a lap belt in the car, confirmed that he was aware of the Canadian report which concluded that a two-point system was less effective than a three-point system in preventing ejection during a collision.

Hyundai had performed tests using an Excel with a two-point system but without a sunroof. The tests, performed at twenty-one miles per hour, revealed that during a rollover an occupant would "float" above the seat with his head in continuous contact with the car's roof. The owner's manual published by Hyundai for the 1989 Excel expressly stated that "for full restraint system protection" passengers needed to make sure that the lap belt was in place. Although this was the owner's manual for 1989, it had been written several months before the Excel in question was manufactured and sold. Suffice it to say that there was evidence, if believed, to support a finding of negligence, proximate cause and damages.

The jury found both Hyundai and the driver, Reyes, proximately caused Mario's injuries. Reyes was found twenty percent liable, and Hyundai was found eighty percent liable. No negligence was attributed to Mario. The jury also found that design and marketing defects in the Excel were producing causes of Mario's injuries. The jury found no gross negligence on the part of Hyundai.

The jury awarded Mario $18,000,000 in actual damages. The trial judge overruled Hyundai's motion for judgment notwithstanding the verdict, and rendered judgment that Hyundai Motor Company, Hyundai Motor America, Inc., and Reyes were jointly and several liable to Mario for the full amount awarded by the jury. The judgment further held Port City Hyundai, Inc. severally liable for $1,148,769.52.

VENUE

Hyundai contends in its first point of error that venue was improper in Duval County. Hyundai asserts that Webb County, where the accident occurred, was the county of proper venue.

The standard of appellate review in venue cases is governed by section 15.064(b) of the Texas Civil Practice and Remedies Code, which states:

On appeal from the trial on the merits, if venue was improper it shall in no event be harmless error and shall be reversible error. In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits.

TEX. CIV. PRAC. & REM.CODE ANN. § 15.064(b) (Vernon 1986). A trial court's venue determination will be upheld on appeal if there is any "probative evidence" that venue was proper in the county where judgment was rendered. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993); Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745, 750 (Tex.App.-- San Antonio 1995, writ denied). If Hyundai is correct in asserting that venue was improper in Duval County, the case must be reversed and remanded.

Two venue provisions contained in the Texas Civil Practice and Remedies Code are at issue in this case. The first is section 15.061, which states:

When two or more parties are joined as defendants in the same action or two or more claims or causes of action are properly joined in one action and the court has venue of an action or claim against any one defendant, the court also has venue of all claims or actions against all defendants....

TEX. CIV. PRAC. & REM.CODE ANN. § 15.061 (Vernon 1986). The second section that must be considered is 15.062, which provides:

Venue of the main action shall establish venue of a counterclaim, cross claim or third-party claim properly joined under the Texas Rules of Civil Procedure.

TEX. CIV. PRAC. & REM.CODE ANN. § 15.062 (Vernon 1986).

Alvarado filed this negligence suit in Duval County against Vicente Reyes, the driver of the car. Reyes's mother, Rita Padron, was also sued under the doctrine of negligent entrustment. Both Reyes and Padron timely answered the lawsuit with a general denial. They did not contest venue. Reyes and Padron also filed a third-party claim against Hyundai for contribution and/or indemnity. Alvarado then amended his petition to include negligence and product liability causes of action against the third-party defendant, Hyundai. Hyundai timely filed an objection to venue, which was denied by the trial court.

Venue in Duval County is clearly proper as to Reyes and Padron. Rule 86 of the Texas Rules of Civil Procedure states in part:

An objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance...

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