Ruiz v. Guerra

• Decision Date: 27 May 2009
• Docket Number: No. 04-08-00090-CV.,04-08-00090-CV.
• Citation: 293 S.W.3d 706
• Parties: Eliazar RUIZ and G.E.M. Materials, Inc., Appellants, v. Henrietta S. GUERRA, Individually and as Representative of the Estate of Daniel Guerra, Jr. Deceased, and Brandi N. Guerra, Jonathan S. Guerra, and Christopher E. Guerra, Appellees. Henrietta S. Guerra, Individually and as Representative of the Estate of Daniel Guerra, Jr., Deceased, and Brandi N. Guerra, Jonathan S. Guerra, and Christopher E. Guerra, Cross-Appellants, v. Sterling Truck Corporation, Cross-Appellee.
• Court: Texas Court of Appeals

293 S.W.3d 706

Eliazar RUIZ and G.E.M. Materials, Inc., Appellants, v. Henrietta S. GUERRA, Individually and as Representative of the Estate of Daniel Guerra, Jr. Deceased, and Brandi N. Guerra, Jonathan S. Guerra, and Christopher E. Guerra, Appellees.

Henrietta S. Guerra, Individually and as Representative of the Estate of Daniel Guerra, Jr., Deceased, and Brandi N. Guerra, Jonathan S. Guerra, and Christopher E. Guerra, Cross-Appellants, v. Sterling Truck Corporation, Cross-Appellee.

No. 04-08-00090-CV.

Court of Appeals of Texas, San Antonio.

May 27, 2009.

D. Bradley Dickinson, Dickinson Bartlett, P.C., Dallas, TX, Micheal V. Winchester, Jack Conner, Micheal V. Winchester & Associates, P.C., Plano, TX, for Appellant.

Linda S. McDonald, Langley & Banack, Inc., George L. LeGrand, LeGrand & Bernstein, P.C., San Antonio, TX, Thomas M. Bullion, III, Germer, Gertz, Beaman & Brown, L.L.P., Richard H. Grafton, Brown McCarroll, L.L.P., Austin, TX, for Appellee.

Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.

OPINION

Opinion by PHYLIS J. SPEEDLIN, Justice.

In this personal injury and wrongful death case, Eliazar Ruiz and G.E.M. Materials, Inc. appeal the trial court's judgment in favor of Henrietta S. Guerra, individually and as representative of the Estate of Daniel Guerra, Jr., deceased, and Brandi N. Guerra, Jonathan S. Guerra, and Christopher E. Guerra (hereinafter, "the Guerra family"). In a cross-appeal, the Guerra family challenges the assessment of court costs. We affirm the judgment of the trial court in part, and reverse and render in part.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of December 9, 2004, Eliazar Ruiz, an employee of G.E.M. Materials, was driving a dump truck filled with sand in the right-hand lane of IH-35 South. At the same time, Daniel Guerra, Jr. was driving an HEB Grocery Company eighteen-wheeler tractor-trailer in the center lane. The two trucks collided and veered sharply to the right, leaving the highway, crossing the access road, and crashing first into a car traveling on the access road and then into a concrete retaining wall. Madeline and Joseph Yorfino, passengers in the car, were pinned inside their car, upside down, between the trucks and the retaining wall. The HEB truck caught fire. Both the HEB driver, Daniel Guerra, Jr., and one passenger in the car, Joseph Yorfino, died at the scene of the accident. Madeline Yorfino and the G.E.M. driver, Eliazar Ruiz, were taken to the hospital for treatment of their injuries.

Madeline Yorfino, individually and as personal representative of the Estate of Joseph R. Yorfino, Sr., deceased, Joseph R. Yorfino, Jr., individually, and Stella Duffy, individually ("the Yorfino family") and Ruiz originally filed suit against HEB and the Estate of Daniel Guerra, Jr.¹ On May 10, 2006, HEB filed a motion for leave to designate two entities as responsible third parties: (1) Alamo City Truck Service, Inc. ("Alamo City"), a maintenance company, and (2) Sterling Truck Corporation ("Sterling"), the manufacturer of the HEB truck; the motion was granted by the trial court in a written order dated June 1, 2006. HEB also filed a First Amended Answer, alleging that Ruiz's negligence caused the fatal accident. On May 23, 2006 and June 7, 2006, the Yorfino family and Ruiz sued Alamo City and Sterling. Thereafter, on October 2, 2006, the Guerra family filed a plea in intervention, asserting claims against Alamo City and Sterling. On December 8, 2006, the day before the two-year statute of limitations ran, the Yorfino family amended their pleadings, cross-claiming against Ruiz and filing suit against G.E.M., alleging that Ruiz and G.E.M. were negligent and responsible for the accident. The Guerra family filed a First Amended Petition in Intervention on February 2, 2007, more than two years after the accident, bringing a cross-claim against G.E.M. Three days later, the Guerra family filed their Third Amended Original Petition, cross-claiming against Ruiz.

The case proceeded to trial in October 2007, with the Yorfino family² and the Guerra family as plaintiffs and Ruiz, G.E.M., and Sterling as defendants. Conflicting evidence was presented as to the cause of the accident. Ruiz and three eyewitnesses testified that the HEB truck was to blame for causing for the accident; however, an expert accident reconstructionist disagreed, and opined that the accident occurred when the G.E.M. truck left its lane and hit the HEB truck. Additionally, testimony was presented regarding the procedures that a motor vehicle carrier company must follow when hiring a driver. Following the close of evidence, Ruiz and G.E.M. moved for a directed verdict based upon the expiration of limitations as to the individual wrongful death claims of Henrietta Guerra, Christopher Guerra, and Jonathan Guerra; the trial court denied the motion. Subsequently, the jury returned a verdict determining that Ruiz was negligent and that G.E.M. negligently entrusted a vehicle to Ruiz. The jury apportioned 25% of the negligence to Ruiz and 75% to G.E.M. The judgment also provided that the Yorfino family and the Guerra family take nothing against Sterling. Ruiz and G.E.M. were ordered to pay court costs with respect to the claims asserted against them by the Yorfino family and the Guerra family; the Guerra family was ordered to pay Sterling's court costs. Ruiz and G.E.M. timely appealed. Subsequent to filing the notice of appeal, Ruiz and G.E.M. settled with the Yorfino family.

DIRECT APPEAL

On appeal, Ruiz and G.E.M. argue that the trial court erred in entering judgment in favor of the Guerra family because: 1) the claims of Henrietta Guerra, Christopher Guerra, and Jonathan Guerra are barred by limitations as a matter of law; 2) the evidence was legally and factually insufficient to support the jury's determinations that Ruiz's negligence proximately caused the accident; 3) the evidence was legally and factually insufficient to support the jury's determinations that G.E.M. negligently entrusted a vehicle to Ruiz and that such conduct caused the accident; and 4) evidence regarding a failed drug test taken by Ruiz two years before the accident should not have been admitted. Ruiz and G.E.M. additionally claim the trial court erred in entering judgment in favor of the Estate of Daniel Guerra, Jr. because the evidence was factually insufficient to support the jury's award and the amount of the award of damages for conscious physical and emotional pain prior to death. Finally, they contend the trial court erred in entering judgment in favor of Henrietta Guerra because the evidence was legally and factually insufficient to support the jury's award and the amount of the award of damages for loss of inheritance.

Statute of Limitations

Initially, Ruiz and G.E.M. argue the trial court erred in entering judgment in favor of Henrietta Guerra, Christopher Guerra, and Jonathan Guerra, because their individual wrongful death claims were barred as a matter of law by the statute of limitations.³ A wrongful death claim is governed by a two-year statute of limitations. TEX. CIV. PRAC. & REM.CODE ANN. § 16.003(b) (Vernon Supp. 2008) ("A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person."). Though the accident at issue occurred on December 9, 2004, the Guerra family did not assert any claims against Ruiz or G.E.M. until February of 2007, when they filed a cross-claim against G.E.M. on February 2, 2007 and also filed a cross-claim against Ruiz on February 5, 2007. The Guerra family responds that their claims against Ruiz and G.E.M. are "saved" by pleadings Sterling filed which "effectively designated" Ruiz and G.E.M. as responsible third parties, thereby allowing the Guerra family to avoid the limitations bar. In support of their argument, the Guerra family directs us to section 33.004(e) of the Texas Civil Practice and Remedies Code ("the Code"), which provides that a claimant may join a person who is designated as a responsible third party within sixty days of the designation "even though such joinder would otherwise be barred by limitations." TEX. CIV. PRAC. & REM.CODE ANN. § 33.004(e) (Vernon 2008). The statute of limitations exception afforded by section 33.004(e), however, is not available unless the person whom the claimant seeks to join has been properly designated. See id. To determine whether Sterling properly designated Ruiz and G.E.M. as responsible third parties, we begin by examining the entire text of section 33.004.

"[I]t is cardinal law in Texas that a court construes a statute, first, by looking to the plain and common meaning of the statute's words." Reed v. State, 269 S.W.3d 619, 624 (Tex.App.-San Antonio 2008, no pet.) (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999) (internal quotation omitted)). When the statute's text is clear and unambiguous, we interpret the statute according to its plain meaning, see City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008), and we must adopt the interpretation supported by the statute's plain language unless that interpretation would lead to absurd results. Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex.2004). We also construe the statute as a whole and will not give one provision a meaning which is out of harmony or inconsistent with other provisions. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex.2002). We presume that the Legislature intended a just and reasonable result by enacting the statute. TEX. GOV'T CODE ANN. § 311.021(3) (Vernon 2005).

Section 33.004 of the Code, titled "Designation of Responsible Third Party," provides in relevant part:

(a) A defendant may seek to designate a person as a responsible third party by filing a motion for...