Omega Contracting, Inc. v. Torres

• Decision Date: 06 April 2006
• Docket Number: No. 2-03-106-CV.,2-03-106-CV.
• Citation: 191 S.W.3d 828
• Parties: OMEGA CONTRACTING, INC. and Fabian Cardenas, Appellants, v. Juan TORRES, Appellee. and Juan Torres, Appellant, v. Dowdy-Ferry Sand and Gravel Company, Appellee.
• Court: Texas Court of Appeals

Page 828

191 S.W.3d 828

OMEGA CONTRACTING, INC. and Fabian Cardenas, Appellants, v. Juan TORRES, Appellee. and Juan Torres, Appellant, v. Dowdy-Ferry Sand and Gravel Company, Appellee.

No. 2-03-106-CV.

Court of Appeals of Texas, Fort Worth.

April 6, 2006.

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Watson, Caraway, Harrington, Nelson, Midkiff & Luningham, LLP, E.L. Caraway and Scott E. Lindsey, Fort Worth, for appellant Omega Contracting, Inc.

Chunn & Pilcher, Lonnie E. Chunn and Stephen R. Pilcher, San Antonio, for appellee Juan Torres.

Fee, Smith, Sharp & Vitullo, LLP, Tom Fee and Rebecca E. Bell, Dallas, for appellee Dowdy-Ferry Sand and Gravel Co.

Panel A: CAYCE, C.J.; GARDNER and WALKER, JJ.

OPINION ON MOTION FOR REHEARING AND REHEARING AND EN BANC

ANNE GARDNER, Justice.

We withdraw our opinion and judgment of September 29, 2005, and substitute the following. Our ultimate conclusions remain the same. We deny Appellant Juan Torres's motion for en banc rehearing.

I. Introduction

This case presents several issues arising from a wreck involving four tractor-trailer rigs. We affirm in part and reverse in part and remand for new trial.

II. Factual and procedural background

In the early twilight hours of April 17, 2001, four 18-wheeler gravel trucks converged on a two lane, undivided stretch of Highway 380 in Wise County. Driving three westbound rigs were Fabian Cardenas, an employee of Omega Contracting, Inc., followed by Michael Ray, who was in turn followed by Jason McBride. Driving eastbound was Juan Torres.

As the trucks converged, two wheels separated from Cardenas's tractor, the lead westbound rig. The wheels, which weighed 150-200 pounds each, rolled across the center line into the eastbound lane and struck Torres's rig. Torres's truck veered left across the center line into the westbound lane, where it sideswiped Ray's truck. Ray's truck toppled over on its side and exploded in what one witness described as a 20 foot high ball of fire. Torres's truck then caromed back toward the eastbound lane. At the same instant, McBride drove his rig from the westbound lane toward the center line and the eastbound lane in an apparent attempt to avoid the collision between Torres and Ray. McBride and Torres collided head-on in the eastbound lane. Both rigs exploded in flames. Torres shot through the windshield of his truck, flew 65 feet through the air, and hit the pavement. He suffered massive injuries but lived. McBride was killed.

A few weeks before the accident, Omega had purchased Cardenas's truck from Porter Truck Sales, Inc. Porter hired M.C. Williams d/b/a M.C. Williams Tire Service to install new tires on the truck before it was delivered to Omega. Michael Paige, an M.C. Williams employee, actually installed the tires and reattached the wheels to the truck. At trial, several experts testified that the wheels fell off because the lug nuts were not securely tightened when the wheels were installed.

McBride's estate, wife, child, and parents ("the McBride plaintiffs") sued Cardenas, Omega, and Torres, among others, for negligence and gross negligence. Cardenas and Omega filed third party contribution claims against Porter and Williams. Torres asserted counter and cross-claims for negligence and gross negligence against McBride, Cardenas, Omega, and Porter and asserted a third-party claim against Dowdy-Ferry Sand and Gravel Company. Torres alleged that Dowdy-Ferry was vicariously liable for Cardenas's negligence under a "pass through arrangement" between Omega and Dowdy-Ferry. We will discuss the details of the pass through arrangement later in this opinion.

The McBride plaintiffs settled their claims against Cardenas and Omega before trial. M.C. Williams filed for bankruptcy before trial, and the trial court severed the claims against him from the others. The trial court granted summary judgment in favor of Dowdy-Ferry on Torres's vicarious liability claims. The remaining claims and cross-claims were tried to a jury.

The jury found that the negligence of Torres, Porter, Cardenas, and Omega, among others, proximately caused McBride's death. The jury also found that the negligence of Porter, Cardenas, Omega, and Torres himself proximately caused Torres's injuries and assigned 5% responsibility to Porter, 30% to Cardenas, 40% to Omega, and 25% to Torres. The jury awarded a total of $6,105,000 to the McBride plaintiffs and $475,225.56 to Torres. The trial court signed a judgment comporting with the verdict.

Omega and Cardenas appeal from the judgment in favor of Torres. Torres appeals from the now-final summary judgment in favor of Dowdy-Ferry. Omega and Cardenas complain that the trial court erred by instructing the jury on negligence per se in connection with Torres's cross-claim, by refusing to instruct the jury on new and independent cause and excuses to negligence per se in connection with Torres's cross-claim, by refusing to submit Michael Paige's liability as a "settling person" or "responsible third party" to the jury, and of legally and factually insufficient evidence of negligence and proximate cause. Torres complains that the trial court erred by granting summary judgment in favor of Dowdy-Ferry on his vicarious liability claims.

III. Discussion

A. Omega's issues

1. Exclusion of "settling person" from charge

In their fourth issue, Omega and Cardenas argue that the trial court erred by refusing to submit to the jury the negligence of nonparty Michael Paige as a "settling person" under section 33.003 of the civil practice and remedies code. We agree.

Paige was employed by M.C. Williams. About a month before the accident, Porter hired M.C. Williams to install new tires on what would later become Cardenas's truck. Paige actually installed the tires. Paige testified that he did not know whether he tightened the lug nuts to the manufacturer's recommended torque. Porter then sold the truck to Omega. Cardenas was driving the truck when the wheels installed by Paige fell off.

Omega and Cardenas filed third-party contribution claims against Porter and Williams. Williams filed for bankruptcy, and the trial court severed all claims against him from the lawsuit. Omega and Cardenas then filed a motion to join Paige as a responsible third party. The trial court denied the motion. Meanwhile, Omega and Cardenas settled their claims against Paige for $10 and the right to purchase discount tires from Paige for three years. At trial, Omega and Cardenas sought to submit to the jury Paige's negligence as a "settling person" under section 33.003(3) of the civil practice and remedies code. The trial court denied their request.

We note at the outset that this case is governed by the version of chapter 33 of the civil practice and remedies code in effect prior to July 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 4.05, 2003 Tex. Gen. Laws 847, 856.

Former civil practice and remedies code section 33.003 provided that the trier of fact shall determine the percentage of responsibility for each claimant, each defendant, each settling person, and each responsible third party who has been joined under section 33.004. Act of May 4, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 972 (amended 2003) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 33.003 (Vernon Supp.2004-05)). "Settling person" was defined by former section 33.011(5) as "a person who at the time of submission has paid or promised to pay money or anything of monetary value to a claimant at any time in consideration of potential liability . . . for which recovery of damages is sought." Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.07, 1987 Tex. Gen. Laws 37, 41 (amended 2003) (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 33.011(5) (Vernon Supp. 2004-05)) (emphasis added). "Claimant" was defined by former section 33.011(1) as "a party seeking recovery of damages . . . including a . . . third-party plaintiff seeking recovery of damages." Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.07, 1987 Tex. Gen. Laws 37, 41 (amended 2003) (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 33.011(1) (Vernon Supp. 2004-05)).

Omega and Cardenas contend that they were "claimants" and Paige was a "settling person" whose percentage of negligence should have been determined by the jury under section 33.003. Torres replies that Omega and Cardenas were not claimants because they were not "seeking recovery of damages," and that the $10 settlement with Paige was a sham.

The first question we must answer is whether Omega and Cardenas were "claimants"; that is, were the parties seeking recovery of damages? See TEX. CIV PRAC. & REM.CODE ANN. § 33.011(1). In their motion to join Paige as a responsible third party, Omega and Cardenas sought permission to sue Paige for contribution. Though the trial court denied their motion and they did not sue Paige, it is apparent that Omega and Cardenas were "seeking" contribution from Paige. Thus, we can refine this first question to ask whether one who seeks contribution from a potential third-party defendant is seeking "recovery of damages." In Vela v. Garza, the Corpus Christi Court of Appeals held that a defendant who sues a third-party defendant for contribution is a "claimant" against the third-party defendant. 975 S.W.2d 801, 803 (Tex.App.-Corpus Christi 1998, no pet.).

Our case is distinguishable from Vela because Omega and Cardenas did not actually sue Paige, but the defendant in Vela did sue the third-party contribution defendant. Nonetheless, we reach the equivalent conclusion: One who seeks contribution seeks "recovery of damages" even if he has not sued the contribution defendant. An interpretation that equates "seeking contribution" with "seeking recovery of damages" is consistent with third-party practice as contemplated by rule 38, which provides that "a defendant...