Loera v. Fuentes
| Decision Date | 10 February 2016 |
| Docket Number | No. 08–11–00182–CV,08–11–00182–CV |
| Citation | 511 S.W.3d 761 |
| Parties | Armando LOERA, Individually and as Representative of the Estate of Josefina Loera, Joined by Morayma Loera, Appellants, v. Joe FUENTES and Nabors Well Services, Ltd, Appellees. |
| Court | Texas Court of Appeals |
Chad Baruch, Johnston Tobey PC, Dallas, TX, G. David Smith, Rockwall, TX, Juan V. Silva, Odessa, TX, Attorney for Appellants.
Bruce Williams, Cotton, Bledsoe, Tighe & Dawson, P. C., Midland, TX, Attorney for Appellees.
Before McClure, C.J., Rodriguez, and Hughes, JJ.
Appellants (collectively the Loeras) appeal a take nothing judgment following a jury trial. The case arose out of a vehicular accident between the Loeras' pickup truck and a tractor-trailer driven by Joe Fuentes and owned by Nabors Well Services, Ltd. (collectively referred to as Nabors). Nabors defended the case in part based upon a seat belt defense: they contend the Loeras' failure to wear seat belts was the cause of their injuries. The jury awarded substantial damages and found Nabors and its employee partially culpable, but based upon findings concerning the non-use of seat belts, the trial court entered a take nothing judgment.
When we first heard this case, we reversed the take nothing judgment and remanded the case for a new trial because the controlling law at the time would not allow for the admitted evidence supporting Nabors' seat belt defense.1 After we had decided this case, the Texas Supreme Court in Nabors Well Services, Ltd. v. Romero, 456 S.W.3d 553 (Tex.2015) concluded that intervening legislative and societal changes required a change in the law. Id. at 566–67. It held that relevant evidence of the use or nonuse of seat belts (or other pre-occurrence injury-causing conduct) is admissible if such conduct caused or was a cause of the damages sought. Id. at 563. The court then vacated our judgment in this case, and remanded it for consideration in light of Romero. Nabors Well Services, Ltd. v. Loera, 457 S.W.3d 435 (Tex.2015).
We now face additional questions not addressed in our original opinion, including how the seat belt defense was submitted to the jury, whether the experts that Nabors used to advance the seat belt defense pass muster under TEX.R.EVID. 702, and whether the Loeras were operating as a single business enterprise. For the reasons noted below, we affirm the judgment as to Armando Loera individually and as to Morayma Loera, but reverse and remand as to the claims made on behalf of Josephina Loera.
On a clear sunny day in October 2006, Morayma Loera was driving a 2004 Dodge Ram pickup truck westbound on Highway 67 towards Marfa. Her mother, Josephina, was in the front passenger seat and her father, Armando, was in the rear passenger seat behind Morayma. Josephina was a double amputee. Her left leg had been amputated above the knee
and her right leg had been amputated below the knee due to complications from diabetes. Because of an earlier stroke, she had lost most of the movement on the left side of her body. Some evidence supports the contention that while she was initially buckled in, she had unfastened her seat belt with her right hand because it was uncomfortable. Other evidence supports the claim that she had her seat belt buckled. There was no dispute, however, that Armando and Morayma were not secured in their seat belts. Morayma had in fact fastened her seat belt behind her to defeat the vehicle's seat belt alarm.
Near the intersection of Highway 67 and a small county road, Morayma came up on two tractor trailer rigs owned by Nabors, also traveling westbound. The lead truck was driven by Joe Fuentes. Both rigs had slowed down and moved to the right in preparation for an upcoming left hand turn. Nabors contended the trucks had moved over just enough to set up for the left hand turn, both with their turn signals on. Conversely, the Loeras contended the trucks had moved all the way onto the paved shoulder, as if to let them pass. Morayma indeed attempted to pass and as she went around the rear truck, the lead rig turned left blocking her path. She hit her brakes and swerved, but impacted the tractor just at the point of its rear wheels. Prior to the accident, Morayma was traveling approximately 70 miles per hour. Two accident reconstruction experts testified in the case; one estimated her speed at the point of impact at between 30 to 35 miles per hour, and the other expert believed her impact speed was between 40 to 50 miles per hour. All three of the Loeras suffered injuries from the collision.
Josefina and Armando filed suit against Nabors alleging various claims of negligence and vicarious liability. Morayma was joined as a third party defendant and she then asserted her own claims against Nabors.
The jury was asked five liability questions. In question one, the jury found that Morayma and her parents were engaged in a joint business enterprise at the time of the accident, which would thus impute Morayma's negligence to Josefina and Armando. In questions two and three, the jury found Joe Fuentes to be 50% negligent in causing or contributing to cause the "occurrence or injury," Nabors 10% negligent, and Morayma Loera 40% negligent.
The jury was also asked two questions regarding the Loeras' failure to wear seat belts and answered as follows:
In a series of damage questions, the jury found that the Loeras suffered approximately $450,000 in damages as a result of the collision. But based upon the answers to questions four and five, the trial court entered judgment in favor of the defendants and ordered that the Loeras take nothing.
The Loeras raise four issues on appeal. Issue One contends that the jury's answer to the seat belt questions was worded in such a way as to make the answers immaterial, and consequently the trial court erred in entering the take nothing judgment based on them. Issue Two challenges the sufficiency of the evidence to support the jury's answer to question one (the joint venture issue) such that Morayma's negligence cannot be imputed to Josefina and Armando. Issue Three claims that the seat belt defense was not available under Texas law. Finally, Issue Four asserts the trial court erred in allowing two expert, Drs. Funk and Smith, to testify in support of the seat belt defense.
On original hearing of this case, we addressed only Issue Three. With the legal basis for the seat belt defense now firmly resolved by Nabors Drilling v. Ramirez, we turn to the remaining three issues.
The Loeras first contend that in question five, the jury was asked no more than who was responsible for each of them not buckling their seat belt. Isolating only the last sentence of the question, it reads:
For each person you found negligently caused or contributed to cause the injury due to non-use of a seatbelt, find the percentage of responsibility, if any, attributable to each for such non-use.
The Loeras contend that it really asked the jury to find the percentage of responsibility "attributable to each [plaintiff] for such non-use [of seat belts]." The correct inquiry, they contend, would ask the percentage of responsibility for their injuries attributable to not using their seat belts. Because the percentage of responsibility question, as asked, yielded nothing material to the case, the Loeras urge that the trial court abused its discretion in using the answers to formulate the judgment. See C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966) (). They raised this issue in their post-trial filings, which were overruled by the trial court.
Nabors responds that the Loeras waived any error in the wording of the charge by not raising that complaint in the charge conference. The Loeras objected to the submission of questions four and five, but only on the grounds that the seat belt defense was not a legally viable defense, and not because the question was improperly worded. A party is generally obligated to timely object to the defective form of a jury issue or instruction. See TEX.R.APP. P. 33.1 ; TEX.R.CIV.P. 274 ; In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003). That obligation serves an important purpose; a timely and specific objection allows the trial court to wordsmith the charge and thereby avoid the wasted judicial resources of unnecessary appeals and retrials. Id. at 350 ; In re C.O.S., 988 S.W.2d 760, 765 (Tex.1999). Here for instance, the defect the Loeras identify in question five could have been easily fixed by the modification, or perhaps even the deletion of the last prepositional phrase of the question.
The Loeras respond that they are not asserting error in the formulation of the question; they never wanted it submitted at all. The error they claim is in the entry of the judgment based on the answer to a meaningless jury question. Nabors carried the burden of obtaining findings to...
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