Southwestern Refining Co. v. Bernal

Decision Date11 May 2000
Docket NumberNo. 98-0154,98-0154
Parties(Tex. 2000) Southwestern Refining Company, Inc., Kerr-McGee Corporation, and Sherwood Breaux, Petitioners v. Julia Bernal, et al., Respondents
CourtTexas Supreme Court

Page 425

22 S.W.3d 425 (Tex. 2000)
Southwestern Refining Company, Inc., Kerr-McGee Corporation, and Sherwood Breaux, Petitioners
Julia Bernal, et al., Respondents
No. 98-0154
Argued April 7, 1999
Decided May 11, 2000.

On Petition for Review from the Court of Appeals for the Thirteenth District of Texas

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Justice Gonzales delivered the opinion of the Court, in which Justice Hecht, Justice Owen, Justice Baker, Justice Abbott and Justice O'Neill joined.

The principal issue in this interlocutory appeal is the propriety of certifying a class action of 904 plaintiffs against Southwest Refining Company for alleged personal injuries arising from a refinery tank fire in Corpus Christi, Texas. The trial court certified the class and directed that the class proceed in three phases: the first to determine general liability and gross negligence; the second to determine punitive damages; and the third to determine causation and actual damages. The court of appeals modified the certification order to require determination of the class representatives' actual damages before punitive damages may be assessed for the whole class. 960 S.W.2d 293. Southwest filed this petition for review, contending that this Court has conflicts jurisdiction and that the common issues do not predominate over the individual issues. We agree with both of Southwest's contentions. Therefore, we reverse the court of appeals' judgment and remand this cause to the trial court for further proceedings consistent with this opinion.


On January 26, 1994, at about 7:30 a.m., a slop tank at a Southwest refinery in

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Corpus Christi exploded. Julia Bernal, Mary De La Garza, Anita Barrerra and Josephine Suarez, four Corpus Christi residents, sued Southwest and four other defendants for extreme fear and mental anguish caused by the sight and sound of the explosion and for personal injuries and property damages caused by toxic exposure. They allege that the explosion and ensuing fire sent a plume of toxic smoke into the air and that soot and ashes from the smoke descended on their homes in the surrounding neighborhoods. Plaintiffs claim that because of the explosion, they suffered respiratory difficulties, skin irritation, eye irritation, headaches, and nausea, and their lawns, foliage, and pets died.

After an additional 900 claimants joined the lawsuit, plaintiffs moved to certify the personal injury claims as a class action consisting of all of the claimants. The trial court granted the motion, certifying the class with nineteen class representatives under Rule 42(b)(4) of the Texas Rules of Civil Procedure. Tex. R. Civ. P. 42(b)(4). And as the plaintiffs requested, the court excluded from the class all claims for property or diminution-in-value damages. The court's order granting the motion provided for a three-phase trial:

Phase I will address the alleged liability of defendants to the named class representatives on the issues of negligence, strict liability, toxic trespass, nuisance and gross negligence. Phase I will establish whether defendants are liable for the explosion and whether the released materials were capable of causing the harm alleged by the class.

If during Phase I there is a finding of gross negligence, Phase II of the trial will determine the amount to be recovered by the class as punitive damage[s].

Phase III will determine whether the individual class members can show sufficient specific injuries or damages and whether they were proximately caused by the release due to the tank explosion. The amount of punitive damages, awarded in Phase II, if any, will be proportionately reduced by the number of individuals who can not make the requisite showing of actual damages and proximate cause in Phase III, if any.

The order does not indicate whether the trial court envisioned a single jury deciding all three phases, including the 904 individual damage claims.

Southwest brought an interlocutory appeal seeking to reverse the certification order. It argued that the prerequisites to class certification, most notably the requirement that common issues predominate over individual ones, were not met. It also argued that the trial court erred by splitting the trial into different phases, in which fault and punitive damages would be determined before causation and actual damages.

The court of appeals held that the class certification satisfied the class action prerequisites. While it acknowledged that "individual issues may predominate in determination of causation and damages," it reasoned that the class was maintainable because the modified trial plan called for the individual issues to be litigated separately from the common issues. 960 S.W.2d at 299. The court suggested that these issues would not necessarily overwhelm the jury because "[i]t remains to be seen" whether "the issues of causation and damages may be proven [expeditiously] by the use of models, formulas, and damage brochures." Id. at 297. In any event, the court suggested, separate juries could be summoned to resolve the individual issues. See id.

However, in response to Southwest's arguments, the court of appeals modified the trial plan to require proof of actual damages by the nineteen class representatives before the jury may resolve punitive damages for the entire class. Under the modified trial plan, phase I remained as the trial court originally ordered, phase II would determine proximate cause and actual damages for the nineteen class representatives, phase III would determine punitive

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damages for the entire class, and phase IV would determine proximate cause and actual damages for the remaining 885 class members. Southwest petitions for review from this decision, arguing that the trial court's certification order was an abuse of discretion. Southwest contends that the class action is not maintainable because individual issues will predominate over common questions of law and fact. Southwest also objects to the class action as being an inferior and unmanageable method of adjudicating the controversy. Moreover, Southwest argues that liability and damage issues cannot be tried in separate phases and that punitive damages for the entire class cannot be tried until the jury determines actual damages for the entire class. Finally, Southwest maintains that the class is not so numerous that joinder is impracticable, that class counsel have a conflict of interest because they are also counsel for those members who must decide whether to opt out, and that class notice was deficient.


As a preliminary matter, we must determine if we have jurisdiction to consider this interlocutory appeal. Jurisdiction over interlocutory appeals is generally final in the courts of appeals. See Tex. Gov't Code § 22.225(b) ("Except as provided by Subsection (c) or (d), a judgment of a court of appeals is conclusive on the law and facts, and a writ of error is not allowed from the supreme court, in the following civil cases: . . . (3) an appeal from an interlocutory order appointing a receiver or trustee or from other interlocutory appeals that are allowed by law; . . . ."). But this Court has jurisdiction over interlocutory appeals when the court of appeals' decision conflicts with a prior decision of another court of appeals or this Court on a question of law material to the decision of the case. See id. §§ 22.225(c); 22.001(a)(2). As we recently observed, the standard for conflicts jurisdiction is whether the rulings in two cases are "'so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other.'" Coastal Corp. v. Garza, 979 S.W.2d 318, 319 (Tex. 1998) (quoting Gonzalez v. Avalos, 907 S.W.2d 443, 444 (Tex. 1995)). Stating it another way:

[f]or jurisdiction to attach on the basis of conflict[,] "[t]he conflict must be on the very question of law actually involved and determined, in respect of an issue in both cases, the test being whether one would operate to overrule the other in case they were both rendered by the same court."

Coastal, 979 S.W.2d at 319-20 (quoting Christy v. Williams, 298 S.W.2d 565, 567 (Tex. 1957)).

Southwest contends that the court of appeals' opinion in this case conflicts with: (1) Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994), regarding whether punitive damages can be tried before proximate causation and actual damages; (2) RSR Corp. v. Hayes, 673 S.W.2d 928 (Tex. App.--Dallas 1984, writ dism'd), regarding the propriety of class certification of personal injury claims, and (3) Iley v. Hughes, 311 S.W.2d 648 (Tex. 1958), regarding whether different elements of a personal injury claim can be tried in separate phases by separate juries.

We begin our conflicts analysis with Moriel. In Moriel, we held that upon a party's request, a trial court must bifurcate the trial and obtain jury findings on liability and actual damages before allowing evidence -- including evidence of a defendant's net worth -- on the amount of punitive damages:

Under this approach, the jury first hears evidence relevant to liability for actual damages, the amount of actual damages, and liability for punitive damages (e.g., gross negligence), and then returns findings on these issues. If the jury answers the punitive damages liability question in the plaintiff's favor, the same

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jury is then presented evidence relevant only to the amount of punitive damages, and determines the proper amount of punitive damages, considering the totality of the evidence presented at both phases of the trial.

879 S.W.2d at 30. The court of appeals acknowledged the tension between the trial court's certification order and the rule in Moriel that a jury must decide liability and actual damages issues before it considers punitive damages. 960 S.W.2d at 298. The court of appeals' solution...

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