PHI VAN CAO v. Hardy
352 S.W.3d 218
Tex. App.2011Background
- Cao was rear-ended by Hardy during morning rush hour while Cao slowed for a disabled vehicle; the disabled vehicle’s hood status is disputed but its hazard lights were not flashing.
- Hardy moved to designate the unnamed owner of the disabled vehicle as a responsible third party for allegedly failing to use hazard lights; the trial court granted this designation.
- Cao argued that section 33.004(j) only allows designation of unknown persons as responsible third parties where the unknown person committed a crime, and the owner’s identity was unknown.
- Cao sought $3,625.86 in past medical expenses; the jury ultimately allocated 60% fault to Hardy and 40% to the unknown owner, awarding $2,176 for past medical costs.
- The trial court denied Cao’s motions for judgment notwithstanding the verdict and for a new trial; this appeal followed.
- The court reverses and remands for a new trial, holding the unknown owner designation was improper under § 33.004(j).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unknown owner designation as R3P under § 33.004(j) was proper | Cao: subsection (j) applies only to known criminal acts; unknown owner must meet pleading requirements | Hardy: § 33.004 broadly allows designation of unknown persons as R3P | Designation improper; subsection (j) uniquely applicable to unknown third parties and was not satisfied. |
| Whether the jury award should be altered due to improper designation | Cao: award formula reflects improper designation; seeks full medical expenses | Hardy: jury has discretion; additur not available | Remedy is a new trial; court cannot grant additur or adjust award here. |
Key Cases Cited
- State v. Shumake, 199 S.W.3d 279 (Tex.2006) (statutory construction of remedies and unknown parties' designation)
- In re Unitec Elevator Servs. Co., 178 S.W.3d 53 (Tex.App.-Houston [1st Dist.] 2005) (unknown-person designation under § 33.004(j) requires compliance with pleading deadlines)
- Hilland v. Arnold, 856 S.W.2d 240 (Tex.App.-Texarkana 1993) (reasonableness of medical costs and causation not in doubt here)
- First State Bank v. Keilman, 851 S.W.2d 914 (Tex.App.-Austin 1993) (explains usury award may be inexplicable and may require new trial)
- Formosa Plastics Corp., USA v. Kajima Int'l, Inc., 216 S.W.3d 436 (Tex.App.-Corpus Christi 2006) (jury may award a lesser amount than total costs if not supported by evidence)
- Gulf, Colo. & Santa Fe Ry. Co. v. Deen, 312 S.W.2d 933 (Tex.1958) (new trial remedy when damages are inexplicable by the evidence)