SUBSTITUTE OPINION
Aрpellant property owners brought this negligence action against CenterPoint Energy Houston Electric, LLC arising from a fire that damaged their property,' The trial court granted CenterPoint’s motion to exclude proposed testimony of an expert witness and no-evidence motion for summary judgment. On appeal, appellants raise two issues: (1) the trial court abused its discretion by excluding the expert testimony of Michael McGraw; and (2) the trial court committed reversible error by granting the electric company’s no-evidence motion for summary judgment. We issued our original opinion on December 30, 2016; Center-Point subsequently filed a motion for rehearing. We now withdraw our original opinion and judgment, issue this substitute opinion in its place, and overrule the motion for rehearing as moot. Concluding that McGraw is qualified to testify, we reverse and' remand the trial court’s judgment.
I. Background
On October 15, 2010, a fire in Houston, Texas destroyed appellant Walton Haw’s building, appellant Howard Coleman’s businesses,
In 2012, appellants filed a negligence action, asserting that the fire was caused by a malfunction in the transformer that was owned, operated, maintained, and under the exclusive control of CenterPoint. Appellants further alleged that the fire and resulting damages were caused by the failure of CenterPoint to properly inspect, maintain, repair, and/or replace the transformer. Appellants alleged the fire caused in excess of $2 million in property damages and lost profits. CenterPoint initially filed a general denial and, subsequently, alleged several affirmative defenses.
Appellants designated McGraw as an expert to “testify regarding, among other things, the nature, sequence, and extent of the transformer failure, the nature and design/fabrication, of the transformer, and the causes of the fire that is the basis of this lawsuit.” McGraw provided an expert report and was deposed by CenterPoint.
CenterPoint filed a motion to exclude McGraw’s testimony under Texas Rule of Evidence 702,
In response to the motion to exclude, appellants asserted McGraw’s qualifications satisfy Rule 702, attaching his curriculum vitae and his affidavit. In response to the no-evidence motion' for summary judgment, appellants argued that, under Texas law, CenterPoint had a “duty to exercise ordinary and reasonable care commensurate with the danger.” Appellants maintained CenterPoint’s tariff did not materially alter the established standard or create any additional duties. Quoting McGraw’s affidavit and referencing
The trial court granted CenterPoint’s motion to exclude the proposed testimony of McGraw, finding “he is not qualified to testify to either the standard of care for a utility or violation of the standard of care for a utility.” The trial court also granted CenterPoint’s no-evidence motion for summary judgment, finding that appellants “have no expert testimony to establish the standard of care for CenterPoint ..., or violаtion of the standard of care ..., which must be established by expert testimony.”
II. Standard of Care
CenterPoint is a regulated utility. The parties do not dispute that expert testimony is required in this negligence case to establish the standard of care CenterPoint owed appellants and any breach thereof. See Schwartz v. City of San Antonio ex rel. City Pub. Serv. Bd. of San Antonio, No. 04-05-00132-CV,
Generally, a public utility has a duty to exercise ordinary and reasonable care, but the degree of care is commensurate with the danger. First Assembly of God v. Tex. Util. Elec. Co.,
CenterPoint’s tariff provides, in part, as follows:
3.2 General. [CenterPoint] will construct, own, operate, and maintain its Delivery System in accordance with Good Utility Practice for the Delivery of Electric Power and Energy to Retail Customers that are located within the Company’s service territory and served by Competitive Retailers.
The tariff defines “Good Utility Practice” as having the same meaning as Public
Any of the prаctices, methods, and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods, and acts that, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety, and expedition. Good utility practice is not intended to be limited to the optimum practice, method, or act, to the exclusion of all others, but rather is intended to include acceptable practices, methods, and acts generally accepted in the region.'
16 Tex. Admin. Code § 25.5(56)(emphasis added).
CenterPoint characterizes Good Utility Practice as the standard of care relevant to this dispute and materially different from ordinary negligence, but we disagree. The term “Good Utility Practice” emanates not from any Texas statute or case law. It was includеd in the pro-forma tariff created pursuant to PUC Rule 25.214. See Tex. Admin. Code 25.214(d); 26 Tex. Reg. 1310, 1310 (2001). The rule was intended to implement Texas Public Utilities Regulatory Act section 39.203 (see now Tex. Util. Code § 39.203), involving transmission and distribution service after deregulation.
In chapter five of CenterPoint’s tariff, a more specific provision governing this dispute, Good Utility Practice is not mentioned as a limitation on liability.
III. Motion to Exclude
In issue one, appellants assert that the trial court abusеd its discretion in excluding McGraw’s expert testimony. A trial court has broad discretion in deciding whether to admit or exclude expert testimony. See Gammill v. Jack Williams Chevrolet, Inc.,
The role of the trial court in qualifying experts is to ensure “that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.” Broders v. Heise,
There are no definitive guidelines to determine whether a witness’s education, experience, skill, or training qualifies the witness as an expert.' Perez v. Goodyear Tire & Rubber Co., No. 04-14-00620-CV,
Our review of McGraw’s testimony reveals he has been involved with circuit design and equipment manufacturing of electrical equipment of a similar type to the transformer in question, applying the same engineering principles, since 1978. His exclusive focus since 1996 has been ,dry-type and liquid-filled transformers for industrial distribution systems.
McGraw holds a Bachelor of Business Administration in accounting and finance and also has completed extensive coursework in electrical engineering toward a Bachelor of Science degree. He worked for General Electric for ten years focusing on medium voltage switch gear and electrical distribution equipment with training at a
McGraw inspected and examined the site and transformer in question and witnessed the removal of the transformer. He reviewed the Fire Marshal’s report, deposition testimony, CenterPoint’s tariff, and relevant PUC Rules, and relied on various industry codes and standards, including the National Electrical Code, Institute of Electrical and Electronics Engineering Standards, National Electrical Manufacturers Standards, and National Fire Protection Association 921.
CenterPoint complained in its motion that McGraw does hot have an engineering degree and is not licensed as an engineer or a certified origin and cause investigator.
CenterPoint also asserts that McGraw admitted that he is not qualified to testify regarding the standard of care applicable to an electric utility. The аlleged admission was made in his deposition:
Q: ... I want to just backtrack a little bit on your qualifications. I just want to make sure: You’re not an expert with regard to utility practices or what a utility should or shouldn’t do. Right?
A: No.
At the outset, we note that McGraw’s deposition was taken before CenterPoint amended its answer, asserting the terms of its tariff as an affirmative defense. On its face and in isolation, McGraw’s statement that he is not an expert regarding “what a utility should or shouldn’t do” would seem to be dispositive as to the first prong of Good Utility Practice. However, read in context along with his affidavit and other-summary judgment evidence, it is clear that there is “more to the story.”
In his affidavit, McGraw addressed the standards of care owed by CenterPoint Energy to appellants and any, breach thereof:
As discussed in my reports and above, there was a failure of at least three (3) safety components on the transformer and other distribution equipment in question that caused or contributed to the cause [of] the fire: the HV bushing, the ground wire, and the external fuse. Ordinary and reasonable care, commensurate with the danger, dictates that each of these three safety components be installed in a proper and dielec-trically consistent manner for the applied voltages, and maintained in good working condition to prevent an event like the one in question from occurring.Likewise, in the exercise of reasonable judgment in light of the facts known at the time the decision was made dictates that each of these three safety cоmponents be installed in a proper and dielectrically consistent manner for the applied voltages, and maintained in good working condition to prevent an event like the one in question from occurring. It is necessary to regularly inspect, maintain, and repair and/or replace these three safety components to accomplish the desired result of keeping them in good working order to prevent an event like the one in question from occurring. None of these comрonents is likely to fail if they are properly installed, inspected, maintained, repaired and/or replaced. In fact, in reasonable scientific and engineering certainty, if these three safety components are maintained in good working condition through proper installation, inspection, maintenance, repair and/or, replacement, it is more likely than not that they will not fail, and instead will work properly and thereby prevent an event like the one in question from occurring. This cаn be accomplished at a reasonable cost consistent with good business practices, reliability, safety, and expedition. (Emphasis added).
CenterPoint urges that McGraw has not demonstrated specialized knowledge as to the standard of care of Good Utility Practice. At oral argument, CenterPoint maintained that “all those cases [cited in its brief] say that you have to have first a person in the industry that can set out objectively what the actor should have done.”
CenterPoint further argues that McGraw’s affidavit constitutes no evidence as it is impermissibly speculative, based again on the deposition testimony discussed above. CenterPoint did not make this complaint to the trial court, and thus it is waived. See Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P.,
McGraw’s affidavit demonstrates his familiarity with the utility’s duty to exercise ordinary and reasonable care commensurate with the danger. Although McGraw’s affidavit does not specifically recite as such the practices, methods, and acts engaged in or approved by a significant portion of the electric utility industry, it states he relied on particular industry codes and standards. Furthermore, in the affidavit, McGraw concluded that CenterPoint should have regularly inspected, maintained, and repaired and/or replaced the HV bushing, the ground wire, and the external fuse to prevent an incident like the one at issue. His affidavit and his experience in the field over many years support appellant’s argument that McGraw’s qualifications and experience permit him to testify as to ordinary and reasonable care commensurate with the danger and both prongs of Good Utility Practice. McGraw’s affidavit demonstrates
We conclude that McGraw demonstrated specialized knowledge, derived from specialized education, practical experience, a study of technical works, or a varying combination of these things, that will assist the trier of fact in understanding the evidence or in determining a fact in issue and, as such, satisfies Rule 702.
Appellants’ first issue is sustained.
IV. No-Evidence Summary Judgment
In issue two, appellants assert that the trial court committed reversible error by granting CenterPoint Energy’s no-evidence motion for summary judgment. We review de novo the trial court’s grant of summary judgment. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
In a no-evidence motion for summary judgment, the movant asserts there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish,
To establish negligence, a plaintiff must show (1) the defendant owed a legal duty to the plaintiff, (2) it breached that duty, and (3) damages proximately resulted from the breach. Doe v. Boys Clubs of Greater Dallas, Inc.,
We previously have concluded that McGraw is qualified to testify as to Cen-terPoint’s standard of care and any breach thereof. In his affidavit, McGraw concluded that CenterPoint failed to use ordinary and reasonable care commensurate with the danger, did not adequately maintain certain safety components of its equipment, and did not exercise reasonable judgment in light of the facts known at the time the decision was made, and thereby, CenterPoint breached the standard of'care required in this matter.
We conclude appellants presented more than a scintilla of probative evidence as to CenterPoint’s breach of the relevant standard of care. Accordingly, we conclude that the trial court erred in granting summary judgment in CenterPoint’s favor as to appellants’ negligence claim.
Appellants’ second issue is sustained.
V. Conclusion
We reverse the trial court’s orders excluding the expert testimony of McGraw and granting summary judgment. We remand this action to the trial cоurt "for proceedings consistent with our opinion.
Notes
. Coleman owned and operated Coleman Conversions, Coleman Upholstery, Inc., and C&D Car Connection, Inc.
.Shortly after filing its no-evidence summary judgment motion, CenterPoint amended its answer to assert affirmative defenses, including as relevant here, that appellants’ claims were barred in whole or in part by Center-Point’s tariff. A "tariff” is a schedule containing charges, rules, and regulations. See Sw. Elec. Power Co. v. Grant,
. Rule 702 states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. Tex. R. Evid, 702.
. CenterPoint’s motion also stated that McGraw’s opinions are unreliable and his testimony will not assist the trier of faсt; however, it offered no substantive criticism of McGr'aw’s opinions. We conclude that Center-Point's Rule 702 challenge is only as to McGraw's qualifications.
. CenterPoint filed its motion to exclude McGraw's proposed testimony in September 2014, following appellants' designation of McGraw as an expert witness and Center-Point’s taking McGraw’s deposition. Prior to any ruling on that motion, appellants, filed their response to the motion for summary judgment relying upon an October 2014 affidavit by McGraw. CenterPoint's reply stated "[f]or the reasons set forth in CenterPoint Energy’s Motion to Exclude, and [request] below, McGraw is unqualified and his testimony regarding the cause of the fire is unreliable and inadmissible.” CenterPoint’s request included several alternate bases for striking McGraw’s testimony, including (1) testimony beyond disclosed opinions and (2) sham affidavit. The trial court’s June 2015 orders granted CenterPoint’s Motion to Exclude McGraw and no-evidence motion for summary judgment without reference to Center-Point’s request. As such, CenterPoint did not obtain a ruling on its request to strike McGraw’s testimоny. Therefore, we conclude CenterPoint has waived any independent bases for striking McGraw’s testimony Center-Point may have presented in its reply to the motion for summary judgment. See Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P.,
. Good Utility Practice is mentioned only briefly in chapter five and then as to the retail customer’s installation and maintenance of equipment beyond the point of delivery, which is not at issue in this case (section 5.4.1).
. The PUC commented that the purpose of 5.2.1 was to reflect limitations of liability for companies such as CenterPoint. Section 3.2 was not mentioned.
.The standard of care is typically considered a component of a liability claim. See generally Shanti v. Allstate Ins. Co.,
. Neither party disputes that expert testimony is required on the subject matter at issue.
. CenterPoint also complained that McGraw has never before served as a testifying witness. Rule 702 does not require such experience. ■
. CenterPoint specifically referenced FFE Transp. Servs., infra; Schwartz, supra; Oncor Elec. Delivery Co., LLC v. S. Foods Grp., LLC,
. CenterPoint also asserted that MсGraw is not qualified to testify regarding the origin or cause of the fire, basing its arguments on additional deposition excerpts. We conclude that, read in context with his affidavit as excerpted above and other summary judgment evidence, McGraw demonstrated specialized knowledge as to causation that satisfies Rule 702. CenterPoint also criticized various conclusions reached by McGraw. However, these criticisms go to McGraw's methodology or results and do not address his qualifications to render the opinions.