Moore Freight Servs., Inc. v. Munoz ex rel. Munoz

• Decision Date: 26 July 2017
• Docket Number: No. 08-14-00254-CV,08-14-00254-CV
• Citation: 545 S.W.3d 85
• Parties: MOORE FREIGHT SERVICES, INC., Charles "Chip" Strader, and XMEX Transports, L.L.C., Appellants, v. Lorena MUNOZ, Ind. and on Behalf of The Est. of Lorenzo Munoz, and as N/F of C.M., a Minor Child, Leslie Munoz, Virginia Munoz, Jessica Lopez, as N/F of A.F. and J.L., Minor Children and Heirs to The Est. of Roger Franceware, Dec., and Rosa Franceware, Ind., Appellees.
• Court: Texas Court of Appeals

545 S.W.3d 85

MOORE FREIGHT SERVICES, INC., Charles "Chip" Strader, and XMEX Transports, L.L.C., Appellants,

v.Lorena MUNOZ, Ind. and on Behalf of The Est. of Lorenzo Munoz, and as N/F of C.M., a Minor Child, Leslie Munoz, Virginia Munoz, Jessica Lopez, as N/F of A.F. and J.L., Minor Children and Heirs to The Est. of Roger Franceware, Dec., and Rosa Franceware, Ind., Appellees.

No. 08-14-00254-CV

Court of Appeals of Texas, El Paso.

July 26, 2017

ATTORNEYS FOR APPELLANTS: Hon. Arthur R. Piacenti, Mounce, Green, Myers, Safi, Paxson & Galatzan, P.C., P.O. Drawer 1977, El Paso, TX 79999-1977, Hon. Valerie Auger, Rincon Law Group, P. C., 1014 N. Mesa, Suite 200, El Paso, TX 79902.

ATTORNEYS FOR APPELLEES: Craig T. Enoch, Enoch Kever PLLC, BridgePoint Plaza, 5918 W. Courtyard Dr., Suite 500, Austin, TX 78730, Hon. Langdon Milton Smith III, 1900 West Loop S Fl 20, Houston, TX 77027-3270, Lisa Kinzer, Enoch Kever, PLLC, BridgePoint Plaza, 5918 W. Courtyard Dr., Suite 500, Austin, TX 78730, Melissa A. Lorber, Enoch Kever PLLC, 5918 Courtyard Drive, Suite 500, Austin, TX 78730, Hon. Stewart W. Forbes, Forbes & Forbes, 711 Myrtle, El Paso, TX 79901, Amy Leila Saberian, Enoch Kever PLLC, BridgePoint Plaza, 5918 W. Courtyard Dr., Suite 500, Austin, TX 78730.

Before McClure, C.J., Rodriguez, J., and Larsen, J., (Senior Judge) (Larsen, J., Senior Judge, sitting by assignment)

OPINION

ANN CRAWFORD McCLURE, Chief JusticeThis is a suit for wrongful death, survival, and exemplary damages brought pursuant to Civil Practice and Remedies Code Chapters 71 and 41, respectively, by the beneficiaries and family members of Lorenzo Munoz and Roger Franceware. At issue is an August 17, 2010, single commercial motor vehicle accident in Mitchell County, Texas, in which Munoz and Franceware were killed after the tractor-trailer in which they were driving veered off the highway at a slight angle. Because we hold that there is legally insufficient evidence to support causation, we reverse and render.

FACTUAL SUMMARY

The Accident

On August 17, 2010, at or around 1:22 a.m., Central Standard Time, a Moore Freight Services, Inc. (Moore Freight) semi-truck (truck or Unit 311) occupied by two professional commercial truck drivers, Roger Franceware and Lorenzo Munoz, was traveling on Interstate Highway 20 in Mitchell County, Texas, when the truck drifted across the left shoulder and onto the grass median, damaging the steel cable barrier to its left and a guardrail to its right as it drove between them. All of the experts who testified at trial agreed that Unit 311 veered off the road as a result of driver inattention, particularly given the slight angle at which it drifted off the highway. After traveling approximately 295 feet parallel to the highway, Unit 311 plummeted into an uncovered concrete drainage channel that ran underneath and perpendicular to the highway. The drainage channel was about 35 feet wide and 25 feet deep. Unit 311 collided with the far retaining wall of the channel and caught on fire. Both Franceware and Munoz died in the crash.¹ There was no evidence of braking, steering to avoid an obstacle, or any mechanical failure or defect. There was no evidence of any interference from another vehicle or animal. Finally, there was no evidence that the truck was speeding, as expert J.W. Moore testified that it averaged a speed of about 65 miles per hour. An accident reconstructionist expert, Chris Ruble, testified that as little as two seconds of inattention would have been sufficient to cause the accident. Trooper Nathan Armstrong investigated the wreckage and labeled the first body he found as #1 and the second as #2, which were later identified as Franceware and Munoz, respectively. Munoz's body was discovered in the driver's seat with the steering wheel on top of him. From this, Trooper Armstrong, with the assistance of other first-responders, concluded that Munoz was the driver and Franceware was the passenger. Ruble agreed with Armstrong regarding the position of the bodies. Ruble thought it unlikely that Unit 311's occupants could have switched places as a result of either the truck's movements during the crash, or the use of fire hoses to put out the fire. Ruble also opined that Munoz's chest injury was consistent with being in the driver's seat.

Moore Freight Services, Inc.

Moore Freight is a commercial trucking company which operates as an interstate motor carrier for hire. In 2010, it had more than 200 tractor-trailers and operated four terminals in Laurinburg, North Carolina; Spring Hill, Kansas; Kingsport, Tennessee; and Knoxville, Tennessee. Moore Freight's main office was located about 20 miles from Knoxville in Mascot, Tennessee. Daniel Ray Moore owned the majority interest of Moore Freight and was the chief executive officer at the time of the events in question. In 2010, Randy Moore was acting president, Julie Reasonover was the manager of the accounting department, Judy Lowery was the manager of the human resources department, and Grant Mize was the Vice President of Operations. Mize was ultimately responsible for overseeing the movements and dispatch of all Moore Freight tractor-trailers.

As a motor carrier, Moore Freight is responsible for ensuring its employees and commercial motor vehicles are in compliance with the Federal Motor Carrier Safety Regulations (FMCSR). At the time of the accident, Moore Freight carried workers' compensation insurance.

Moore Freight hired Charles "Chip" Strader approximately four years prior to the accident. Initially, Strader worked as a dispatcher and information technology professional. Eventually, he was assigned to manage the southwest van division, which included El Paso County. Strader, as a manager, reported to Dan Moore, and then to Mize or Randy Moore whenever Dan Moore was unavailable. Moore Freight also authorized Strader to book loads and to assign and dispatch drivers. Strader managed six to ten Moore Freight drivers located in the El Paso area. Strader was also the customer representative for Moore Freight for the El Paso area.

Unit 311 was owned and titled in Moore Freight's name. Unit 311 needed to travel to Tennessee for repairs and Dan Moore testified that this furthered Moore Freight's business. These repairs were cosmetic in nature and did not impede the truck's ability to operate safely on the road. In addition to transporting Unit 311 to Tennessee for cosmetic repairs, Franceware had some outstanding trip sheets and driver's logs, which needed to be submitted, and Munoz, as a prospective Moore Freight employee, needed to attend orientation, both of which also furthered Moore Freight's business.

Franceware's Background and Circumstances

Franceware was born on February 20, 1978. At the time of his death, he was not married and had four children: J.L., born in 2000; A.F., born in 1998; E.L.F., born in 1998; and M.C.² For most of his adult life, Franceware worked as a professional, over-the-road commercial truck driver. Driving trucks was Franceware's passion and he had a reputation as being a responsible, experienced, and professional driver. He took great pride in being a professional truck driver and prior to the accident, he had over ten years of experience on the road. Moore Freight hired Franceware on June 16, 2010, two months before the fatal accident occurred. Franceware normally drove Unit 313, sometimes referred to as "the show truck," which transported loads only within Texas. Before Moore Freight hired him, Franceware worked at CJ Trucking; Carnegie; Rio Grande Freightlines, Inc.; Christianberry Trucking and Farm, Inc.; and Southwest Freight Lines Trucking, Inc. The record is unclear as to whether Franceware received any fatigue or circadian rhythm training from any of these previous employers.

At the time of the accident, Franceware was in good health and well-rested. He was in compliance with the federally regulated 34-hour reset period and had not consumed any drugs or alcohol.

Munoz's Background and Circumstances

Munoz was born on July 4, 1971. He married Lorena Munoz on August 20, 1991. They had three children, V.M., born May 8, 1992; L.M., born December 6, 1995; and C.M., born August 7, 2007. Munoz obtained his commercial driver's license and began driving commercial motor vehicles in 2003. At the time of the accident, Munoz had been driving commercial motor vehicles for seven years. He was considered a veteran driver. According to his wife, Munoz would not do things that presented a risk to himself. He always wore his seatbelt and ensured the vehicle he operated was in safe, working order. If he were tired, Munoz knew not to operate any heavy equipment. When he was out on the road, Munoz knew he had to spend time in his tractor to comply with the hours-of-service regulations. He was in good health and well-rested. At the time of the accident, Munoz was in compliance with the federally regulated 34-hour reset period and had not used drugs or alcohol. Munoz was not a Moore Freight employee. Instead, he was a prospective employee who, according to his wife, had applied with Moore Freight on August 6, 2010, and was traveling to Tennessee in Unit 311 for orientation. Telephone records reflect Strader and Munoz communicated before the accident. Munoz called Strader at Moore Freight's headquarters on August 3, 2010, and Strader called him back. Munoz called Strader again on August 14. During his testimony at trial, Strader could not recall whether he actually talked to Munoz, because "[he] got calls all the time from drivers wanting jobs." Phone records also showed a number of phone calls between Munoz and Moore Freight employee Jose "Shorty" Arras on August 6, 7, 10, 14, 15, and 16, 2010, none of which Arras could recall. Before the accident, Munoz worked for the City of Merced; Northern Refrigerated Transportation; Munoz Trucking; Y&T Gutierrez Trucking; J.J. Transport; Federal Express; Acre's Transportation, Inc.; M.S. Cargo, Inc.; Los Angeles-El Paso Express; ...