Mobil Oil Corp. v. Ellender

• Decision Date: 27 November 1996
• Docket Number: No. 09-94-220,09-94-220
• Citation: 934 S.W.2d 439
• Parties: MOBIL OIL CORPORATION, Appellant, v. Anna Mae ELLENDER, Individually and as Representative of the Estate of Eli Arnold Ellender, Deceased, et al, Appellees. CV.
• Court: Texas Court of Appeals

Page 439

934 S.W.2d 439

MOBIL OIL CORPORATION, Appellant, v. Anna Mae ELLENDER, Individually and as Representative of the Estate of Eli Arnold Ellender, Deceased, et al, Appellees.

No. 09-94-220 CV.

Court of Appeals of Texas Beaumont.

Nov. 27, 1996.

As Amended Dec. 17, 1996.

Michael L. Baker, Strong, Pipkin, Nelson & Bissell, Beaumont, Eugene A. Cook, Bracewell & Patterson, Lori Meghan Gallagher, Andrew & Kurth, Houston, for appellant.

Paul F. Ferguson, Jr., J. Keith Hyde, Provost & Umphrey, Beaumont, Otto D. Hewitt, III, Hewitt Law Firm, Alvin Mark Hall, Nelson & Hall, Lubbock, for appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

WALKER, Chief Justice, delivered the opinion of the Court as to Part I, joined by BURGESS and STOVER, Justices, and as to Part III, joined by STOVER, Justice, and as to Part IV, the judgment of the court.

BURGESS, Justice, delivered the opinion of the Court as to Part II, joined by STOVER, Justice.

This appeal follows entry of a money judgment exceeding four million dollars based upon a unanimous jury verdict. Mobil Oil Corporation (Mobil) is appellant and Anna Mae Ellender, James G. Ellender, Dwain A. Ellender, Ricky Ellender, W. Craig Ellender, Arnold Kent Ellender, Jr. and Florence Faye Ellender Hoyt are appellees.

Trial ended on December 3, 1993, by return of the jury's verdict. Plaintiffs' Motion for Judgment was filed February 2, 1994, with hearing held on February 9, 1994. Final judgment was signed March 14, 1994, and file stamped March 23, 1994.

The trial of this case involved questions of Mobil's negligence and gross negligence in the death of Eli Arnold Ellender. On appeal, Mobil takes no issue with the jury's finding that Mobil's negligence proximately caused the death of Eli Arnold Ellender. Mobil does however, take issue regarding the amount of actual damages, contending entitlement to settlement credit. Thus, we affirm the trial court's judgment upholding the jury's finding that Mobil's negligence proximately caused Mr. Ellender's death.

In this case, the jury not only found Mobil negligent, but also determined such negligence amounted to gross negligence and further, that Mobil acted with "malice" toward the decedent, Mr. Ellender. The jury awarded appellees, plaintiffs below, $622,888.97 as compensatory damages and $6,000,000 as punitive or exemplary damages against Mobil. The trial judge, Michael Bradford, applied the punitive damage "cap" reducing punitive damages by approximately 2.5 million dollars.

PART I

Mobil brings seventeen points of error to this Court. Initially, we address point of error ten which contends:

The trial court erred in rendering judgment against Mobil and in overruling its post-verdict motions because the evidence, verdict and judgment are improper because they do not conform to the standards articulated in Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex.1994), or Alamo National Bank v. Kraus, 616 S.W.2d 908 (Tex.1981), and, as a result, Mobil was denied substantive and procedural rights under Texas law.

Query: Does Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex.1994) apply to this case?

APPLICATION OF MORIEL

Moriel provides:

Inasmuch as we are remanding this for retrial, we consider it advisable, in the exercise of our common law duties, to articulate procedural standards for the trial court. The standards we announce apply to all punitive damage cases tried in the future.

Moriel, 879 S.W.2d at 26 (emphasis added) (effective date June 8, 1994).

The preceding directive seems clear enough--beginning June 8, 1994, Moriel requirements apply to "all punitive damage cases...." Our present case was tried during November and December of 1993; therefore, we should conclude Moriel simply does not apply to this present appeal. However, it is simply not so simple.

On June 22, 1994, just fourteen days following the Moriel decision, our Texas Supreme Court decided Ellis County State Bank v. Keever, 888 S.W.2d 790 (Tex.1994). Factually, Glenn Keever brought suit against Ellis County State Bank for malicious prosecution arising out of the arrest and indictment of Keever for hindering secured creditor Bank from retrieving collateral. Based on the jury verdict, the trial court rendered judgment for Keever, awarding actual and punitive damages. The Dallas Court of Appeals reversed the judgment as to prejudgment interest on the punitive damages, but otherwise affirmed Ellis County State Bank v. Keever, 870 S.W.2d 63 (Tex.App.--Dallas 1992). Clearly, Keever was tried prior to Moriel.

Our Supreme Court granted writ, remanding, in part, with instruction "to reconsider the punitive damage award in accordance with the standards articulated in Moriel." Keever, 888 S.W.2d at 799. Repetitive, but poignant, "[t]he standards we announce apply to all punitive damage cases tried in the future." Moriel, 879 S.W.2d at 26 (emphasis added).

Keever's subsequent history, following remand to the Dallas Court, is worthy to tell. Upon remand, the Dallas Court seemingly followed Supreme Court direction by detailing relevant evidence supportive of the jury's findings and the trial court's judgment. Ellis County State Bank v. Keever, 913 S.W.2d 605, 611 (Tex.App.--Dallas 1995). Although the Dallas Court in its "Application of Law to Facts" keenly addressed each requirement of Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981) (often referred to as the "Kraus factors"), on November 16, 1995, the Texas Supreme Court again reversed and remanded Keever to the Dallas Court "for further proceeding." The Court determined that the detailing of evidence pursuant to Kraus must be accompanied by an explanation of "why" such evidence either supports or does not support the punitive damage award. Ellis County State Bank v. Keever, 915 S.W.2d 478, 479 (Tex.1995). We reserve a discussion of the "why" requisite for later in this opinion.

Though the clear dictate of Moriel is post-active, Keever speaks contrarily:

Although Moriel was decided after the court of appeals' decision in this case, its holding should be applied to a pending case in which a party has preserved the complaint that the court of appeals failed to properly scrutinize a punitive damage award. Here, the Bank specifically argues in its application for writ of error that the court of appeals failed to adequately consider the Kraus factors. Also in its motion for rehearing en banc in the court of appeals, the Bank presented a point of error complaining that 'the court of appeals erred in failing to order remittitur of punitive damages awarded against the Bank,' arguing under this point that the punitive damage award was 'patently unreasonable' and 'so excessive as to indicate passion or prejudice on the part of the jury.' Although the Bank did not specifically refer to the Kraus factors in the motion for rehearing, it adequately preserved this issue below under our practice of 'constru[ing] liberally points of error in order to obtain a just, fair and equitable adjudication of the rights of the litigants.' Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).

Keever, 888 S.W.2d at 799.

In view of what we perceive to be somewhat of a quagmire, only judicial obstinance would compel us to pursue this opinion as if Moriel did not apply. We cannot ignore, however, what appears to be an impediment, an encroachment, an infringement or lessening of appellees' right to a just, fair and equitable adjudication of their rights as litigants. Appellees tried their lawsuit without knowledge or beneficial guidance from Moriel. Likewise, the trial judge pursued this trial according to the law existing at trial time. Now, only Mobil can receive the benefits of Moriel scrutiny. Mobil requests this Court to render judgment that appellees take nothing against Mobil and alternatively to remand this case for a new trial. We readily admit the "safe" address to this case is to seek reason for remand to provide appellees the justness of a trial under now existing law. We choose to ignore the easy way out and leap headlong into this appeal. Further, we intend to recognize Keever and apply Moriel post-actively.

Since Moriel requires a detailed analysis of the evidence, microscopically viewed through application of the Kraus factors, we set forth the evidence, first by parties overview, then through more precise detailing. In so doing, we sustain appellant's point of error ten only as to requiring Moriel/ Kraus analysis. We find no error in the trial court's conformity to required standards. Thus we overrule the substantive elements of appellant's point of error ten.

APPELLEES' OVERVIEW OF THE EVIDENCE

The decedent, Mr. Eli Ellender, was a millwright working out of Union Local 2484. Mr. Ellender worked for contractors at Mobil's Beaumont Plant during the mid-sixties and early seventies. While intermittently on Mobil's premises, Mr. Ellender worked on pumps, product lines, and steam cleaning equipment. During his work periods at Mobil, Mr. Ellender was in daily contact with benzene. Long-time co-workers of Mr. Ellender testified they and decedent daily washed and cleaned their tools and hands in benzene, sometimes more than once a day. This daily activity exposed Mr. Ellender to benzene at concentrations of up to 1,000 p.p.m. in air. ¹ The benzene to which Mr. Ellender was exposed was provided by Mobil, with Mobil's knowledge. Others, including former Mobil employees, testified workers used benzene to clean and wash clothes, tools and hands.

APPELLANT'S OVERVIEW OF THE EVIDENCE

Over the course of more than twenty-seven years, the decedent was employed by various construction companies and worked as a millwright or machinist who repaired and serviced equipment. Those construction companies and their workers in turn were hired by independent contractors by various owners and operators of refineries and plants. Between 1963 and 1977, the decedent worked periodically as an...