W. Star Transp., Inc. v. Robison

• Decision Date: 23 January 2015
• Docket Number: No. 07–13–00109–CV,07–13–00109–CV
• Citation: 457 S.W.3d 178
• Parties: West Star Transportation, Inc., Appellant v. Charles Robison and Cherie Robison, Appellees
• Court: Texas Court of Appeals

457 S.W.3d 178

West Star Transportation, Inc., Appellant

v.Charles Robison and Cherie Robison, Appellees

No. 07–13–00109–CV

Court of Appeals of Texas, Amarillo.

January 23, 2015

Robert L. Duncan, Arlene C. Matthews, Crenshaw, Dupree & Milam, LLP, Lubbock, Deborah G. Hankinson, Jennifer Rangel Stagen, Brett Kutnick, Hankinson LLP, Dallas, for Appellant.

Kevin P. Parker, W. Mark Lanier, Judson Waltman, Lanier Law Firm, P.C., Houston, Christopher Carver, Lubbock, for Appellees.

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

Patrick A. Pirtle, Justice

Appellant, West Star Transportation, Inc., appeals the entry of a judgment in favor of Appellees, Charles and his wife, Cherie Robison, for damages totaling $5,298,590.78, for personal injuries sustained by Charles while working for West Star. By four issues, West Star contends (1) the evidence is legally and factually insufficient to support the jury's finding that West Star's negligence proximately caused the occurrence in question, (2) the trial court erred in submitting a broad-form negligence question, (3) the evidence is legally and factually insufficient to support the jury's findings as to damages, and (4) the trial court erred in granting summary judgment as to West Star's affirmative defense of settlement and counterclaim for breach of a settlement agreement. We affirm the judgment of the trial court.

Background

On April 23, 2007, Charles sustained a traumatic head injury after falling head first from a loaded flatbed trailer which he was attempting to cover in the shipping yard of West Star Transportation, Inc., his employer. At the time of the accident, West Star was a nonsubscriber under the Texas Workers' Compensation Act. It was undisputed that the load being covered was an uneven load, containing both uncrated equipment and pallet crates of differing heights, and was approximately thirteen feet off the ground at its highest point, which was an unusual occurrence at West Star. In fact, West Star did not even own the equipment needed to complete the task. Covering the load required that a tarpaulin, which weighed approximately 150 pounds, be placed on the highest point of the load. After the tarpaulin was removed from a West Star storage area, it was raised to the top of the load by a forklift West Star had to borrow from a neighboring business. Charles was also lifted to the top of the load by standing on the pallet being lifted. While the exact cause of the fall was undetermined, it is clear the fall occurred while Charles was standing on the surface of the load, manipulating the tarpaulin without safety equipment or assistance. As a result of the fall, Charles sustained a traumatic brain injury.

On January 29, 2009, Charles and Cherie brought this suit seeking recovery of the damages they sustained as a result of those injuries. In their original petition, the Robisons alleged West Star was “negligent in failing to provide a reasonably safe place to work.” By letters dated April 13, and May 5, 2009, the Robisons offered to settle their claims for the remaining limits of West Star's insurance policy. The May 5 settlement offer stated the offer would expire at 5:00 p.m., on May 8, 2009. West Star contends that one of its attorneys, Levi McCathern II, telephoned one of the Robisons' attorneys, Christopher Carver, and orally attempted to accept that settlement offer prior to the stated deadline. After the deadline passed, West Star again attempted to accept the settlement offer by faxing a signed written memorandum to the Robisons' attorneys. Because the Robisons believed the offer automatically terminated when it was not timely accepted in the manner required for a binding settlement agreement, they rejected West Star's purported acceptance. West Star then offered to settle the case on May 14, 2009. When that offer was refused, West Star amended its answer to allege the affirmative defense of settlement. West Star later filed a counterclaim against the Robisons for breach of the settlement agreement it believed to exist between the parties. The Robisons filed a no-evidence motion for summary judgment on the counterclaim on the grounds there was no meeting of the minds and the settlement offer, as presented, was not timely accepted in a manner that complied with the requirements of Rule 11 of the Texas Rules of Civil Procedure.

On February 5, 2010, the trial court denied West Star's motion to enforce the settlement agreement and, at the same time, ruled that the Robisons' motion for partial summary judgment was moot. Six months later, on August 26, 2010, West Star filed a motion to sever its breach of contract counterclaim from the Robisons' personal injury cause of action. Although the case was set for trial on September 27, 2010, on September 14th, the trial court severed West Star's settlement counterclaim from the underlying case, abated the underlying case and set the counterclaim for trial.¹ Despite the fact that it had previously determined the alleged settlement agreement did not comply with Rule 11, the trial court then denied the Robisons' motion for summary judgment as to West Star's counterclaim. As a result, the Robisons initiated mandamus proceedings in this Court that concluded in the conditional granting of a writ of mandamus directing the trial court to grant summary judgment in favor of the Robisons on West Star's then-severed counterclaim for breach of the alleged settlement agreement.

In re Robison, 335 S.W.3d 776 (Tex.App.–Amarillo 2011, orig. proceeding). West Star attempted to countermand the effect of that ruling by filing a new petition for mandamus with the Texas Supreme Court. That petition was ultimately denied on August 31, 2012.² On September 28, 2012, the trial court vacated the severance and consolidated the proceedings back into a single cause of action bearing the original cause number. The trial court then granted the Robisons' traditional and no-evidence motions for summary judgment, ruling that West Star take nothing by its counterclaim.

Subsequently, the case proceeded to trial. Before trial, the parties stipulated that Charles incurred reasonable and necessary medical expenses in the amount of $250,618.92. Following five days of testimony, the trial court submitted the Robisons' liability question to the jury in a single issue asking, “Did the negligence, if any, of [West Star] proximately cause the occurrence in question?” That issue was preceded by the “standard” instruction defining “negligence” to mean “the failure to use ordinary care; that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.” The jury answered the negligence question “yes” as to West Star.

In response to question two pertaining to Charles's damages, the jury also found (1) past physical pain and mental anguish: $300,000, (2) future physical pain and mental anguish: $700,000, (3) past loss of earning capacity: $168,540, (4) future loss of earning capacity: $243,184, (5) past physical impairment: $5,000, (6) past medical care: $378,718, and (7) future medical care: $3,337,857. In response to question three pertaining to Cherie's damages, the jury found (1) past loss of consortium: $250,000 and (2) future loss of consortium: $150,000.

Based upon prior stipulations and the jury's verdict, on January 18, 2013, the trial court entered a final judgment in favor of the Robisons and against West Star. In accordance with one of the prior stipulations, the judgment credited West Star for benefits its insurer had already paid and awarded actual damages to Charles in the amount of $4,898,590.78 and to Cherie in the amount of $400,000. The judgment also awarded prejudgment interest, postjudgment interest and court costs. West Star subsequently filed its notice of appeal. We affirm the judgment of the trial court.

Single or Multiple “Theories” of Recovery

Much of West Star's arguments pertaining to issues one and two center on its contention that the Robisons were asserting multiple and distinct theories of liability. By its first issue, West Star contends the evidence was legally or factually insufficient as to three specific “theories” of liability: (1) failure to use fall protection or other mechanical devices to assist tarping, (2) failure to require a pre-planning meeting, and (3) failure to implement a policy whereby West Star would refuse to tarp over-sized loads. By its second issue, West Star contends the trial court erred in submitting to the jury a broad-form negligence question which allowed the jury to find it negligent based on any one of the “multiple and distinct theories of liability” alleged by the Robisons. For purposes of logical discussion we will address West Star's second issue first.

Issue Two—Broad Form Submission

Broad-form submission is the preferred method of presentation of issues to the jury. Isaacs v. Bishop, 249 S.W.3d 100, 108 (Tex.App.–Texarkana 2008, pet. denied). In fact, Rule 277 of the Texas Rules of Civil Procedure explicitly provides that the court “shall, whenever feasible, submit the cause upon broad-form submission.” SeeTex. R. Civ. P. 277. That preference notwithstanding, for many years Texas trial courts have understood that it commits error by submitting a single broad-form liability question that comingles “invalid” theories of liability with “valid” theories of liability. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex.2000).

West Star's general contention that the trial court erred by submitting multiple and distinct theories of recovery is misguided because the Robisons were not submitting distinct theories of liability. From the time the Robisons filed their original petition, they have always contended that West Star was “negligent in failing to provide a reasonably safe place to work.” While much to-do has been made about different ...