Pierre v. Swearingen, 331 S.W.3d 150

On June 19, 2006 Swearingen was struck from behind by a Dallas taxi driven by Montetoille while preparing to turn into her apartment parking lot.
Montetoilleconceded he was following too closely and did not brake prior to the collision.
The impact pushed Swearingen’s car into the oncoming lane and caused injury to her neck; she was transported to a hospital.
Swearingen received CT imaging, pain medication, and later neurological treatment with physical therapy and electrical therapy; pain persists.
Swearingen sued Montetoille and Cowboy Cab Company, Inc. for common law negligence; the trial court rendered a joint and several verdict against both.
Judgment awarded past medical expenses of $7,231.14, past physical impairment $20,000, and past physical pain/mental anguish $20,000.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Cowboy Cab is vicariously liable	Swearingen asserted respondeat superior/agency liability.	Cowboy Cab argued no employee/agency relationship proven.	Cowboy Cab liable on vicarious theory.
Whether liability should be apportioned by defendant	Joint and several liability appropriate for tortfeasors.	Liability percent should be determined per defendant.	No separate percentages; vicarious liability suffices.
Whether Montetoille was Cowboy Cab’s employee or independent contractor	Evidence shows control and branding link to Cowboy Cab.	No explicit independent contractor contract; status unclear.	Evidence supports employee/agent status.
Whether trial court properly awarded full medical expenses under 41.0105	Full claimed amounts should be awarded; written-offs unclear.	Deduct written-offs per 41.0105; insufficient trial evidence.	Award upheld; billing records insufficient to deduct.
Whether the $20,000 past physical impairment award is supported	Therapy and ongoing limited neck movement show impairment.	No proof of permanent impairment beyond pain.	Evidence supports impairment award.

Sibai v. Wal-Mart Stores, Inc., 986 S.W.2d 702 (Tex. App.-Dallas 1999) (liberal construction of pleadings for notice-based theories)
Worford v. Stamper, 801 S.W.2d 108 (Tex.1990) (implied findings of fact may be challenged on appeal)
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (implied finding review when record includes reporter and clerk's records)
Bedford v. Moore, 166 S.W.3d 454 (Tex.App.-Fort Worth 2005) (liability percentage not needed for purely derivative liability)
Rodriguez v. Zavala, 279 S.W.2d 604 (Tex.App.-San Antonio 1955) (corporate owner drivers treated as company if used in its colors)
Ginns v. H.T. Cab Co., 280 S.W.2d 360 (Tex.Civ.App.-Galveston 1955) (taxis owned and operated under company control; liability considerations)
Matbon, Inc. v. Gries, 288 S.W.3d 471 (Tex.App.-Eastland 2009) (medical expenses written off not necessarily recoverable under 41.0105)
Mills v. Fletcher, 229 S.W.3d 765 (Tex.App.-San Antonio 2007) (section 41.0105 applicability to medical expense recovery)
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) (proof of physical impairment and related damages standards)