Liberty Mut. Ins. Co. v. Transit Mix Concrete & Materials Co.
| Decision Date | 28 June 2013 |
| Docket Number | No. 06-12-00117-CV,06-12-00117-CV |
| Court | Texas Court of Appeals |
| Parties | LIBERTY MUTUAL INSURANCE COMPANY, Appellant v. TRANSIT MIX CONCRETE & MATERIALS COMPANY, Appellee |
Before Morriss, C.J., Carter and Moseley, JJ.
Robert Smith, an employee of Texarkana Construction Company (Texarkana Construction), was injured January 4, 2008, while working on a construction job at the Texarkana Regional Airport, which is located in Arkansas, just across the Texas border. The injury to Smith, a concrete finisher, occurred as he was holding the chute of a concrete mixer truck owned and operated by Transit Mix Concrete and Materials Company (Transit Mix), which was delivering concrete to the job site. Smith indicated that the driver of the truck negligently caused his injuries when the driver failed to signal Smith before he unlocked the chute. Upon being unlocked, the chute swung into Smith, dragging him into a nearby "concrete lay-down machine," causing injury to Smith's back and left leg. At the time the injury occurred, Smith was a Texas resident and Texarkana Construction Company was a Texas entity. Liberty Mutual Insurance Company (Liberty Mutual), Texarkana Construction's worker's compensation insurer, paid $91,155.39 in medical bills incurred by Smith as a result of the injuries he sustained.
Two lawsuits were filed against Transit Mix. One was filed January 4, 2010, by Liberty Mutual in Bowie County, Texas.1 Subsequent to the filing of the suit by Liberty Mutual (after the suit might have been barred by the applicable Texas statute of limitations but before recovery would have been barred under Arkansas law), Smith filed a lawsuit in Miller County, Arkansas, the county of the accident site where he was injured.2 In March 2011, Transit Mix filed a motionin Liberty Mutual's Texas suit seeking to have the suit dismissed pursuant to the doctrine of forum non conveniens. After pleading responses and after a hearing, the trial court granted Transit Mix's motion and dismissed Liberty Mutual's suit. It is from that order of dismissal that Liberty Mutual has appealed.
"'The doctrine of forum non conveniens is an equitable doctrine exercised by courts to resist imposition of an inconvenient jurisdiction on a litigant, even if jurisdiction . . . would not violate due process.'" Exxon Corp. v. Choo, 881 S.W.2d 301, 302 n.2 (Tex. 1994) (quoting Sarieddine v. Moussa, 820 S.W.2d 837, 839 (Tex. App.—Dallas 1991, writ denied)).
On appeal, Liberty Mutual maintains that the dismissal of its lawsuit was error claiming that (1) Transit Mix's motion to dismiss was not timely, (2) Arkansas does not provide an adequate forum to adjudicate the claims, (3) Texas has the most significant contacts with the case and is, therefore, the proper forum, (4) Bowie County, Texas, (not Miller County, Arkansas) has the dominant jurisdiction, and (5) Texas Civil Practice and Remedies Code Section 71.051(b) prohibits the dismissal.
The parties disagree as to the rules which govern the disposition of the question in this case. One side claims that statutory rules govern the forum non conveniens issue while the other maintains that common law rules apply.3 Section 71.051 of the Texas Practice and Remedies Code applies to personal injury and wrongful death actions. TEX. CIV. PRAC. & REM. CODE ANN.§ 71.051 (West 2008). On the one hand, Liberty Mutual argues that this claim should be governed by Section 71.051 because the underlying claim is a personal injury claim; on the other hand, Transit Mix argues that since the personal injury claim has been filed in Arkansas, this lawsuit does not concern a personal injury and the common law should apply.
Transit Mix concedes that Liberty Mutual's claim is a derivative claim. "There is but one cause of action for an employee's injuries . . . ." Franks v. Sematech, Inc., 936 S.W.2d 959, 960 (Tex. 1997) (per curiam) (). Although the insurance carrier can assert its subrogation claim independently of the employee, its claim is still derivative of the employee's claim. Id. Thus, in this case, there is only one cause of action: Smith's personal injury cause of action. Although Liberty Mutual's subrogation claim can be brought independently, its claim would not exist apart from the injury and its ability to recover is derivative of the personal injury cause of action.
Because Liberty Mutual's subrogation claim is derivative of Smith's personal injury cause of action, this lawsuit is a personal injury lawsuit and is subject to the rules promulgated by statute,4 not by common law rules.
We note that although Section 71.051 requires the trial court to issue findings of fact and conclusions of law, see TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(f), the record provided to us contains no such findings and conclusions. It also appears that neither a request for findingsof fact nor a request for past-due findings of fact was filed.5 Therefore, any error regarding the trial court's failure to file findings of fact has been waived. See Curtis v. Comm'n for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Betts v. Reed, 165 S.W.3d 862, 867 (Tex. App.—Texarkana 2005, no pet.). In the absence of findings of fact and conclusions of law, we imply that the trial court found all facts necessary to support its decision so long as they are also supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); see Betts, 165 S.W.3d at 867. Even so, the validity of implied findings may still be challenged on appeal for want of legal and factual sufficiency when the appellate record includes the reporter's and clerk's records. BMC Software, 83 S.W.3d at 795; Betts, 165 S.W.3d a 867.
Liberty Mutual complains, in its first issue, that Transit Mix failed to file its motion to dismiss based on forum non conveniens in a timely manner, claiming that Texas Civil Practice and Remedies Code Section 71.051(d) and Rule 86 of the Texas Rules of Civil Procedure mandate that Transit Mix's motion be filed within 180 days of Transit Mix's answer. Transit Mix responds that any such error has not been preserved for appellate review.6 Because Liberty Mutual failed to raise this issue at the trial level, we determine that it failed to preserve this error for our review.
In its reply brief, Liberty Mutual argues that its failure to perfect error is not fatal to its complaint because the error is "systemic." It goes on to urge our adoption of the three categories of error preservation adopted by the Texas Court of Criminal Appeals in Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), modified on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (). Liberty Mutual espouses the proposition that this Court applied criminal error preservation standards to a civil case in Suggs v. Fitch, 64 S.W.3d 658 (Tex. App.—Texarkana 2001, no pet.), wherein this Court held that the failure to request the jury to be polled waived the error. Liberty Mutual, based on its interpretation of Suggs, argues that timeliness is a waivable-only right because it is a mandatory statutory requirement.7
We disagree that Suggs purports to adopt standards set out by the Texas Court of Criminal Appeals for criminal cases. Suggs relies entirely on civil cases and applies civil standards, the only support to Liberty Mutual's argument being that this Court in Suggs used the word "waiver." Courts, when discussing error preservation, sometimes employ the word "waiver" as a synonym for both "forfeit" and the phrase "failure to preserve error." Whereas Marin assigned specific and distinct meanings to waiver and forfeit, courts still occasionally use the words synonymously—particularly in the context of civil cases where the Marin categoriesare inapplicable. In Suggs (), the Court merely uses "waiver" as a synonym for "forfeit." See id. at 660. We decline to extend the Marin categories of error preservation to civil cases not involving juvenile delinquency determinations.8
Liberty Mutual alternatively argues that the error is fundamental. We note that Texas jurisprudence significantly limits the fundamental error doctrine. Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 166 (Tex. App.—Texarkana 2005, no pet.). "Fundamental error survives today in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas." Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam); see Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006). Liberty Mutual's complaints regarding this issue fail to affect a public interest so significant that fundamental error review has been recognized. See Ramsey v. Dunlop, 205 S.W.2d 979, 984 (Tex. 1947) (). "Defects in procedure will rarely constitute fundamental error . . . ." Estate of Pollack v. McMurrey, 858 S.W.2d 388, 395 (Tex. 1993) (Gonzalez, J., concurring). Because the face of the record reflects neither a lack of jurisdiction nor a direct and adverse effect on a significant public interest, we reject Liberty Mutual's argument that the error was fundamental.
Liberty Mutual failed to preserve...
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