Case Updates from the First Courts of Appeals
by Rachel Stinson, Morgan, Lewis & Bockius LLP
Primoris Energy Servs. Corp. d/b/a Sprint Pipeline Servs. v. Thomas Myers, –S.W.3d–, 2018 WL 6542569 (Tex. App.— Houston [1st Dist.] Dec. 13, 2018) (no pet. h.) (Op. on Reh’g).
While sitting atop his parked 4-wheeler, Thomas Myers was struck by a reversing 18-wheeler as the truck was being guided by spotters hired by Sprint. After the incident, Myers was diagnosed with six herniated discs and a compressed spinal cord; Myers later underwent spinal surgery. Myers sued Sprint for negligence. The jury found in Myers’ favor and awarded him approximately $3 million in damages.
Sprint appealed and asserted arguments challenging the sufficiency of the evidence and certain evidentiary rulings. The panel of Justices Jennings, Keyes, and Higley reversed the judgment’s award of damages for past medical expenses and affirmed the remainder of the judgment.
Challenging the jury’s negligence finding, Sprint argued that Myers’ negligent-activity claim failed because there was “no evidence of any contemporaneous negligent activity by the spotters” but only “equally plausible inferences that amount[ed] to no evidence.” The panel rejected Sprint’s argument, determining that the evidence supported a reasonable inference that the spotters breached their duty to exercise reasonable care in communicating with the 18-wheeler’s driver and warning bystanders about the 18-wheeler’s movements. Declining to adopt Sprint’s “equally plausible inference” argument, the panel noted that choosing among opposing reasonable inferences is a determination for the jury.
Addressing the jury’s $2 million future physical impairment award, Sprint argued that Myers improperly presented an economic-damages model to the jury when only non-economic damages are proper for physical impairment. But in addition to the economic-damages model, Myers also submitted evidence of his future disfigurement, future loss of earning capacity, and his loss of enjoyment of life. The panel concluded that — even without the “economic-damages model” evidence —factually sufficient evidence supported the jury’s future physical impairment damages award.
Sprint also challenged the jury’s damages award for future physical pain, arguing that Myers (1) presented no evidence of future medical expenses; (2) did not complain about pain; and (3) was not prescribed pain medication. Noting that a jury has significant discretion in awarding damages for pain and suffering, the panel concluded that the jury’s future physical pain award was adequately supported by evidence of Myers’ injuries.
Sprint’s evidentiary challenge asserted that the trial court erred by excluding billing evidence that showed the monetary amount the medical provider expected to recover for its provision of services, including its assignment of Myers’ bill to a collection company. The panel sustained Sprint’s challenge, concluding that the evidence was relevant to the issue of the reasonableness of Myers’ medical expenses. The panel reversed the portion of the trial court’s judgment awarding Myers damages for past medical expenses and remanded the case for a new trial on the issue. The panel affirmed the remainder of the trial court’s judgment.
Wall v. State Farm Lloyds, — S.W.3d —, 2018 WL 6843781 (Tex. App.—Houston [1st Dist.] Dec. 31, 2018, no pet. h.).
Hail damaged the Walls’ Tomball home in April 2013. The Walls filed a claim with State Farm; State Farm issued a check to the Walls to replace the home’s roof. The Walls sought an additional $65,000 for other damages. After State Farm denied the Walls’ claim, the Walls sued State Farm alleging breach of contract and violations of the Texas Insurance Code.
The jury found that State Farm (1) did not breach the insurance policy; and (2) violated the Texas Insurance Code. The jury awarded the Walls $14,500 in damages. The trial court rendered a take-nothing judgment.
On appeal, the Walls argued they were entitled to a judgment in their favor on both the contract and insurance code claims and, alternatively, that they were entitled to a new trial in the interest of justice under USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479 (Tex. 2018). Rejecting the Walls’ arguments, the panel of Justices Jennings, Higley, and Massengale affirmed the trial court’s judgment.
With respect to their breach of contract claim, the Walls argued that the undisputed evidence showed that State Farm failed to comply with the policy because it had “paid late.” In the charge, the breach of contract question instructed the jury that “State Farm failed to comply with the Policy if it failed to pay for the damages that resulted from physical loss to the dwelling on the Property caused by wind or hail damage.” The charge did not instruct the jury that any untimely payment constituted a failure to comply. The Walls did not object to the charge. The Court held that, based on the charge, a late payment did not establish a failure to comply with the policy.
The Court then considered the impact of Menchacaon the Walls’ insurance code claim. The Walls contended that they were entitled to judgment in their favor based on the jury’s verdict and award of damages. The Court concluded that the jury’s answers to the contract and insurance code questions did not conflict, noting the jury was not instructed to limit the amount of damages it awarded for the insurance code claim to the amount of damages available under the policy. Accordingly, the Court reasoned, “the damages awarded under the insurance code violations claim were damages that were not available under the policy.” Since the Walls did not argue that they had lost benefits under the policy, they could not recover those damages under Menchaca.
Finally, without a finding of error in the trial court’s judgment, the Court held it lacked the authority to remand for a new trial “in the interest of justice” under Texas Rule of Appellate Procedure 43.3.