*1 Sеcond, appellate on rules interlocu- LINES, AMERICAN VAN
tory NORTH appeals provide guidance civil cases INC., North American Van Lines of Tex.R.App.P. 29.5 provides here. that: Texas, Inc., and Stor- interlocutory appeal While an from an Cartagena, age Company, and Edwin order the trial court retains pending, Appellants, jurisdiction may of the case make orders, including dissolving further one v. from, appealed may pro- the order ceed with trial on the merits. But the EMMONS, Murphy, Ruth Charles E. court must not make order that: Kruse, Walding, Rebekah Wanda (a) any with appellate is inconsistent Appellees. Company, Ford Motor order; temporary court No. 09-00-073 CV. (b) juris- with or impairs interferes diction of the appellate court or effec- Texas, Appeals Court of any sought may or that tiveness relief Beaumont. granted be on appeal.10 15, Submitted Feb. 2001. then, context, civil a trial jurisdiction during court retains case of a June 2001. Decided an interlocutory may appeal pro even ceed to on the trial merits of that case Aug. Rehearing Overruled 2001. during such appeal. Although there is no
analogous interlocutory rale governing appeals,
criminal “general there is the principle preliminary that an from appeal
order suspend does not trial court’s power proceed on the merits.”11 reasons,
For these conclude that Tex. R.App.P. 29.5 does render the trial void,
court’s April May 3 orders extraordinary and the remedy of manda- mus is not warranted here. We need not real-party-in-interest
reach Martinez’s sec- contention, ond the appellate record April as filed incomplete, 20 was therefore Rule 29.5 does not apply.
CONCLUSION petition The State’s for writ of manda- mus is denied. Peters, 11. at Tex.R.App.P. 33.
10. 29.5. *8 Hatchell, Smith, Greg Mike Eric Find- lay, Sowders, Ramey Flock, P.C., Maria & Tyler, Cain, Jr., Kenzy Robert T. D. Hall- mark, White, Cornelius, Paul Zeleskey, E. Hallmark, Hicks, L.L.P., Roper Lufkin, & Jewell, Kevin Bateman, D. Robert H. Ste- ven Bateman & Knight, Magenheim, J. Helfand, P.L.L.C., Houston, appellants. Walker, Darrin Offices, Chandler Law Lufkin, Celedonia, III, Celedonia & Robert Klitsas, P.C., Houston, Michael Eady, W. Hartline, L.L.P., Brown McCarroll & Oaks Austin, for appellees. WALKER, C.J.,
Before BURGESS GAULTNEY, JJ.
OPINION
GAULTNEY, Justice. trial, jury Following trial the court entered a total judgment plaintiffs for $19,858,638.08,including actual puni- and damages. tive No challenges defendant the amount actual damages awarded. This from appeal judgment presents legal legal veritable sea of other issues: The Accident causation, negli- joint liability, and several 31, 1996, May the date of the acci- On se, jury gence per propriety the of certain dent, driving a Cartagena Edwin was mov- instructions, liability, conspiracy,- vicarious Texas, Lufkin, from to Port Ar- ing van status, joint single enterprise, thur, ego by Moving, alter Texas. Lufkin Owned (an error, to enterprise, preservation moving van was leased business the carrier) motor and was being interstate testimony and admissibility expert the shipment “a under used for NaTex accidents, exemрlary of other evidence authority!.]” operating NaTex [NAVL’s] evi- sufficiency and the of the damages, subsidiary an intrastate carrier and a jury’s findings. We dence NAVL. and and render in part affirm reverse
part. paralyzed Emmons was from Charles moving chest down van driv- when Cartagena en rear-ended Ford Jury Trial was a Bronco which Emmons front seat daugh- Emmons and his three Charles required by passenger. Cartagena was Lufkin Mov- Cartagena, ters sued Edwin have a driver’s license law to commercial (“Lufkin Mov- ing Storage Company and had Cartagena the van: been to drive but Lines, Inc. ing”), North American Van license be- refused commercial driver’s (“NAVL”), Lines of North Van American require- could the vision cause he not meet (“NaTex”), Texas, Ford Motor Inc. and ments; had failed the writ- Cartagena and (“Ford”).2 and Company Cartagena for a driver’s license ten exam commercial negligence, carriers were sued for three twice. which design was sued for a
and Ford seat Appeal injuries. Emmons’ allegedly aggravated Issues on Presented jury Cartagena found and the three appeal jury’s The four defendants liable, liability on but found no carriers liability findings judgment and the which response question to a part. Ford’s severally jointly all four and liable for held percentage determine the asking them to also damages. appeals actual defen- to each of causation attributable $5,400,000, exemplary damage an award dant, Cartagena, assessed 5% appeals exemplary damage NaTex and NaTex, $150,000. overall, They present, Lufkin Moving, 20% to 35% award of rendition, remittitur, or requesting awarded Emmons issues 40% to NAVL. trial. $10,674,092 and award- a new damages in actual $210,000, $200,000, daughters his three ed Holding $100,000, Our respectively. The also Na- against exemplary damages
assessed judgment affirm the as actual We however, This filed appeal and NAVL. all be- damages appellees; Tex NAVL, Moving, disposition of our issues Cartagena, cause liability, we order the joint and several NaTex. was defective. Walding, seat in the Ford Bronco Murphy, Wan- 1. Ruth Rebekah Kruse, Emmons, daughters brought of Charles Ford into the da After NAVL NaTex suit, plaintiffs petition in the suit. appellees were amended Ford as a event include defendant against party petition filed 2. third In their damages. appellees’ jury found Ford liable for Ford, claimed appellants NAVL NaTex
113 judgment Essentially, reformed to conform to the NAVL and NaTex contend Cartagena legally competent that was a findings of percentages the of causation. of a driver’s despite driver his lack license affirm that jury’s finding We the Therefore, impaired they and his vision. single and NaTex are a business enter- evidence, argue factually no or there is prise with their respect opera- to Texas evidence, support jury’s insufficient the to tiоns; they neg- are for each other’s liable finding negligently entrusting that the ligence. We also find that NAVL/NaTex proximate commercial him was a van to statutory employer Cartagena. They cause also collision. contend deny requests appellants’ We for a new they way pre- that there is no could have trial. Lufkin from Moving using vented an un- However, we reverse trial court’s qualified if driver it was determined to do findings joint liability, and several and so. legally we find sup- insufficient evidence to issue, In appellants this also state port findings conspiracy, alter they any duty there was no evidence owed ego, joint and enterprise. As we also find entity to Emmons. Whether has a malice, no basis for jury’s finding we duty particular ques circumstances is a punitive reverse damages; the awards of tion of law to for the court decide from the consequently, not appel- we need consider surrounding facts in question. the occurrence request lants’ punitive for a remittitur of Zezulka, appar v. 635, Th 994 S.W.2d damages or a new trial on punitive dam- (Tex.1990). Here, 637 of NAVL/NaTex ages. authorities, fered no argument, facts to We turn analysis next to an of each support their assertion have waived by appellants issue raised and the reasons any Moreover, consideration of that issue. for our conclusions. legal supports duty. record There testimony
is for example, from NAVL/Na- Tex they authority attempt had the to Proximate Cause Moving “things to control Lufkin one, In issue NaTex and NAVL service,” done in [were] had the [their] challenge sufficiency of the evidence to right to inspect compli records ensure support jury’s finding that negli their ance with the with their driver law and gence proximately caused the accident.3 requirements safety regulations, NaTex and argue Cartagena’s authority discipline had the Lufkin Mov vision problems and lack of a license were ing for requirements violations of those Therefore, causes of the accident. keep and to as Cartagena drivers such they argue, negligent even if were making from further for them. hauls allowing assign Cartage- van, na to negligence drive the their present appellants issue not a proximate argument of the accident. cause Court is this whether zarez, 444, (Tex.1996). sufficiency 3. The standards are well-known. 450 S.W.2d reviewing sufficiency legal point, When reviewing sufficiency the factual of the evi- only consider dence, the evidence and inferences we examine all the evidence will tending support jury’s finding, and we only set if aside verdict the evidence is so disregard contrary all evidence. Wal-Mart finding against great weak or the so Stores, Gonzalez, Inc. v. weight preponderance of the evidence (Tex.1998). "Anything more than a scintilla clearly wrong unjust. that it is Cain v. legally of evidence is sufficient to Bain, (Tex.1986). finding.” Ca- Continental Prods. Co. v. Coffee *11 114 truck, safely a operate in the to commercial and
there is sufficient evidence record proximate of that in could support the two elements the accident this case have foreseeability. kept cause-in-fact and if Cartagena cause: been avoided had a accident, of the To be a “cause-in-fact” presented proper lookout. Evidence was acts or omissions must have appellants’ licensing process that of the purpose the in ac- causing been substantial factors the of to that drivers are aware ensure cident, words, in other factors without rules, safety in- regulations, and issues not oc- which the accident would have operating in commercial vehi- large volved Co., Fetzer 990 curred. See Read v. Scott jury appel- cles. heard that The evidence (Tex.1998). 732, 737 element S.W.2d they responsibility lants had a to knew “foreseeability” a that a requires finding of licensed,, agents to make sure control their ordinary intelligence of should have person qualified drivers were used to deliver their anticipated neg- created danger shipments. Id.
ligent acts or omissions. Proximate cause is a fact issue Co., in appel As Fetzer Scott by the usually left for determination fact- duty a solely lants’ of care is not based on finder, jury. in this case the Seе Clark v. liability, of but rather on notion vicarious 437, (Tex.1970); Waggoner, 440 452 S.W.2d are premise appellants responsi that Co., Farley v. M M 529 S.W.2d Cattle Appellants their own owed ble for actions. 751, (Tex.1975); Pump but Union 756 see duty directly a of care members (Tex. Allbritton, Co. v. 898 S.W.2d driving public, including Emmons. See 1995) judgment on lack (summary based Co., generally White v. Excalibur Ins. affirmed). juryA legal may causation (5th Cir.1979). F.2d 50 Was breach of solely finding proximate base cause on a duty proximate a acci that cause this evidence. See J.K. & Susie circumstantial effect, alleged the lack Appellees, dent? L. Blood Bank Wadley Research Inst. & v. supervis of care and NaTex (Tex. Beeson, 689, 698-700 checking agent ing and the records their denied). 1992, App. jury writ — Dallas basis, in part, as the for NAVL/NaTex’s may that there more than one find liability; appellants acknowledged DeLeon proximate cause of an event. v. driving public presented serious risk Pickens, (Tex.App.— carefully by the failure to exercise their denied). Corpus Christi writ and, particularly, recognized control more unqualified of harm if the risk drivers visual Cartagena’s impairment lack If they used. had were exercised of skill made it that he could foreseeable carefully, it control could have made moving safely enough a van operate unlikely unqualified, that an unlicensed avoid an accident heard evi- would be behind wheel of put driver unqualified regarding dangers dence of their one trucks. Because the heard evidence drivers. that and NaTex aware of the testimony that it is un- were heard unqualified, a unlicensed a without risks of drivers person safe to allow commer- ability (foreseeability) a had the con- cial driver’s license to drive commercial truck, exposes “things driver trol that done its seivice” [were] unlicensed risk, (cause-in-fact), we find the evidence is public degree to an extreme factually sufficient to person pass legally a vision test must finding elements of jury’s license both get order to commercial because ability proximate can cause. impair person’s vision poor
H5
Appellants
they
also contend that
na was the actual driver. Such conduct
prevent
could
Lufkin Moving
reasonably may
interpreted by
not
from us
have been
ing
Moving
an unlicensed driver if Lufkin
jury
accep-
the
as a
or routine
ratification
doing
Essentially, they
was intent on
so.
practice.
jury
tance of the business
The
argue
Moving
that the conduct of Lufkin
Moving
found that Lufkin
did not commit
an intervening
was
force which broke the
against
by making
fraud
or NaTex
chain
legal
They
causation.
contend
“misrepresentation.” Apparently,
the
they
were
victims of a fraud committed jury did
that the conduct of
not believe
Moving.
Lufkin
Moving
deceptive
was
to NAVL
and NaTex. This was not the first time an
cause,
superseding
To be a
agent
unqualified,
had used
unlicensed
intervening force must have been unfore
shipments.
driver to make their
Evidence
seeable.
v.
Property
See Nixon Mr.
Man
presented
jury
appellants
was
to the
that
(Tex.
546,
agement, 690 S.W.2d
549-50
posed by
were aware of the risk
falsified
1985);
generally
see
Phan Son Van v.
danger
unqual-
records and the
inherent in
Pena,
(Tex.1999).
751,
990 S.W.2d
ified,
making
ship-
unlicensed drivers
When the misconduct
party
of the third
operating
ments and
under their control.
consequence
foreseeable
of the defen
by Lufkin
alleged
The
misconduct
inattentiveness,
dant’s
gen
the misconduct
was foreseeable.
erally is not considered an intervening act.
Bank,
Hoenig
See
v. Texas Commerce
Certainly NAVL and
were
NaTex
N.A.,
656,
660-61 (Tex.App.—
required
finding
to obtain a
of fraud to
writ) (Intentional
San Antonio
no
causation,
legal
break the chain of
al
misconduct of lessee did not relieve bank
though the issue was submitted to the
liability
for its inattentiveness because
jury.
carry
prov
Plaintiffs
the burden of
foreseeable.).
intentional misconduct was
causation,
ing legal
jury
which the
found
Appellants’ argument
they
fails for several
did
this case. See Leitch v. Horns
(Tex.1996).
reasons. Evidence
presented
that
by,
alleged fraudulent “misrepresentation”— finding that
negligence
of NAVL and
qualified
accident,
that a
driving
driver was
proximately
NaTex
caused the
truck
concluded,
at the time of
jury reasonably may
the accident —occurrеd
have
after the accident.
jury
heard evi-
presented,
based
the evidence
dence that Lufkin Moving simply did not
only
put
NAVL and NaTex not
failed to
fill in the blank for
adequate policies
place,
the driver’s name on
but also failed to
completed
exist,
that,
the form that should have been
enforce
those
did
ab
accident;
before
jury reasonably
conduct,
sent such
the accident would not
may have concluded that a proper
happened.
exercise
have
heard evidence
of control
appellants’
NAVL and NaTex over Luf-
from
safety
director of
that the
kin Moving
caught
would have
this failure wreck was
There is suffi
preventable.
and resulted in an
exercise
control suffi-
cient evidence in the
record
stop
patently
cient to
unqualified
jury’s finding
negligent
driver
acts or
(cause-in-fact).
driving
from
the truck
Ev-
omissions of
and of NaTex were
causes,
others,
presented
proximate
idence was
from which the
among
of this
DeLeon,
could have found that NAVL and NaTex
accident. See
US Liability conspiracy question answer unless
Joint and Several they found at least one of the defendants Appellants complain of trial court’s negligent. Having appellants found the jointly each judgment holding defendant *13 negligent, jury then that the found severally governed and This is liable. case engaged conspiracy had in a that harmed by Tex.Civ.PRAC. & Ann. Rem.Code plaintiffs. (Vernon 1997), pro- §§ 33.001-33.017 the portionate responsibility statute. argue that the con Appellees 33.013(b) provides
Section that spiracy finding appellants renders vi the jointly severally in order be held and cariously in liable which turn makes them liable, a percentage respon defendant’s of jointly severally and for the liable entire sibility greater must be than 50%. Tex. However, damages. Supreme the Court 33.013(b) § Civ.Prac. & Rem.Code Ann. has held that is an in conspiracy “[e]ivil 1997). (Vernon No defendant was found tentional tort.” Firestone Steel Prods. jury greater by the to have been than 50% (Tex. 608, Barajas, Co. v. 927 S.W.2d Therefore, responsible for the accident. 1996) added). (emphasis The claims jointly severally no defendant and is liable the against appellants grounded are pay the portions under statute to the of negligence. Supreme has noted Court against the verdict rendered the other de “specific that since a a conspiracy requires fendants. injury, “parties intent” to cause cannot engage negli conspiracy a civil to be
Relying legal liability vicarious Communications, gent.” Triplex See Inc. theories, however, equitable piercing veil n. 2 Riley, v. 719-720 S.W.2d appellees that interrelation- contend the (Tex.1995); Airington, Juhl v. of the liable ships appellants render them (Tex.1996) (“ 640, 644 conspiracy ‘Civil re pro- for each conduct the despite other’s specific intent’ to ‘to accom quires agree portionate responsibility jury statute. The plish purpose accomplish an unlawful or to All following: found the defendants four ”) purpose by a lawful unlawful means.’ conspiracy; were involved in a three of Communications, Inc., (quoting Triplex (Lufkin NaTex, and Moving, defendants 719). finding 900 S.W.2d at NAVL) joint in a enterprise; were involved unsafely jury operate of a conspiracy NAVL; ego NaTex was alter finding. “conspiracy negligent” to be a single operated as a NaTex no submission ob Appellees requested addition, jury enterprise. business jury finding no on the intentional tained being operated found that truck was of civil a matter conspiracy. tort As a by or for under to NAVL at lease law, of a jury finding conspiracy be time of each the accident. We address negligent judgment a does finding. joint liability.4 and several Legal Theories jury Enterprise Appellees all ar Conspiracy found that Joint — —The NAVL, gue jury’s finding four “members of a con- defendants were NaTex, engaged were spiracy operate commercial motor vehi- joint joint supports enterprise cles manner violation of law in a also unsafe liability Plain- several three defen proximately damages caused those hand, Appellants, on the con- was instructed not to dants. other tiffs[.]” finding Moving/Cartagena’s regarding conspiracy 4. Since we is of Luflrin issue hold charge question. legal conspiracy consequence, no need not consider error in
H7 sup- tend the evidence was insufficient to parties generally written contract Here, port finding joint enterprise. relationship, determines the nature of the “joint enterprise” i.e., was defined to the it a relationship whether based on as follows: venture, joint partnership, prinei- or pal/agent. Corp. See Coastal Plains Dev. “joint enterprise”
A if exists those con- Micrea, (Tex. (1) Inc., v. cerned have an agreement, either 1978). unambiguous, a contract is express implied, or Where respect with to the (2) endeavor; enterprise question relationship’s nature is a common (3) purpose; pe- question a common business or of law. Edwards v. Lone See *14 (4) (Tex. interest; Co., 840, cuniary equal right and an Star Gas 782 S.W.2d 841 1990); to direct and control the enterprise. Esquivel, see also 992 S.W.2d at Here, 542. the contract between NAVL correctly The instruction defines Moving unambiguously and Lufkin estab joint enterprise. Dep’t See Texas of principal/agent lishes a with relationship, Able, 608, Transp. v. 35 S.W.3d 613-15 having superior right NAVL of control. (Tex.2000). However, we find no evidence relationship The between NAVL аnd Luf- in the record to support jury’s affirma- kin Moving joint was not a venture. See tive finding regarding the fourth element Communications, Inc., Triplex 900 S.W.2d joint i.e., enterprise, of the three at 718-719. parties “an equal had right direct and control enterprise.” equal right The of The Moving contract NaTex/Lufkin control an joint essential element of a likewise a principal/agent reveals relation- Communications, enterprise. Triplex See ship. spe- Contained the contract is a
Inc.,
Here, all appellants argue given equal control; four right of to the principal/agent that a relationship contrary, existed unambiguously the contract es- between and Lufkin Moving NAVL the relationship princi- tablishes as one of also between NaTex and Lufkin Moving. pal/agent. Because we conclude con- note, They correctly, that both contracts unambiguous tracts are and we find no affirmatively state that the relationships evidence in the record of equal right (NAVL, are principal/agent relationships. among parties control the three NaTex, Lufkin Moving), shippers gen- we hold the motor vehicle to and the respect operation public eral with legally evidence insufficient to NAVL, NaTex, equipment for jury finding aforesaid vehicular added). Company.” as a operated joint (emphasis Lufkin all en- terprise. serves to language, This which argues responsibility, it limit was not the Lease—NAVL NAVL’s portion jury. be its cannot held liable under lease for of the lease submitted to Cartagena’s actually for the Moving’s negli Lufkin sentence submitted Moving, jury’s gence, interpretation because Lufkin the owner as follows: truck, “Company Agent agree it to NAVL that said ve leased exclusive for, shipments; may by, use in hicular ly equipment for interstate be used Ac is not shipment question Agent was intrastate. in behalf of when same NaTex, being cording reg operated Company.” federal for contrast require to the respon portion ulations NAVL to assume lease where respect sibility Moving’s during responsibility ... truck “assumes with *15 operation mak vehicular shipments, NAVL’s interstate thus to of the aforesaid equipment Company,” statutory the driver the sentence ing employee NAVL’s for They jury that only argue simply to extent. further to the allows submitted it is regulations permit that the the to the when parties equipment to use (NAVL) (emphasis that for agree being operated the lessee will be re not NAVL. added). lan specific if sponsible only for the truck and asked that driver When (Lufkin the Moving) guage responsibility, while the lessor is haul NAVL’s limited (NAVL). jury “No.” How ing goods understandably for the lessee NAVL answered ever, the that is not of unambiguous dispositive contends the lease has the answer of in to and since trial if language parties’ question this effect the intent even the submitted, the required interpret was tent because properly court to it accord was law, controlling portion a the issue the ingly jury as matter of should did not submit interpret pro have been asked to the of the lease. dealing of the with vision lease that issue. the However, of portion whether the jury’s the regulations require language Federal lease lease submitted for the relevant, interpretation complete, that the was agreement “provide authorized clear, consequence. lessee is ambiguous carrier shall assume com- or of no [NAVL] Question 4 in plete responsibility operation jury for the of the found answer by or operated “being for duration of the lease.” that truck was equipment the the (1997) 376.12(c)(1) § in for at the time of the occurrence (emphasis 49 C.F.R. added). 376.12(c)(3) However, finding moot question.” al- renders section This the con- interpretation from excerpt for an An authorized car- of exception. lows 3 and is Question tract about goods rier of household the lessor asked Ques- jury finding that consistent with the “may provide provi- in the lease 376.12(c)(1) ap- has tion NAVL nor NaTex required by ] 2. Neither [section sions only during equip- response pealed jury’s finding the time the apply operated by Question fact is not finding for the autho- 4. This of ment is or added). on, tainted dependent and therefore not (emphasis rized carrier lessee.” Here, There evi- just by by, Question 3. is sufficient providing the lease did interpre- dence, jury’s of independent “as- Company [North American] that the contract, tation as a common carrier responsibility sumes
1X9 operations to aсhieve a com- operated that the truck sources and finding being Aluminum purpose. at the acci- mon See by or the time of business (Bolivia), Inc., 68. unambiguous language Under the 28 S.W.3d at dent. Chems. lease, complete re- NAVL assumed important distinction be One for the the truck sponsibility operation of ego” is that the “alter theo tween the two being “by it was used NAVL. when for” i.e., fraud, ry generally proof involves Equitable Doctrines corporation organized proof that the Ego NaTex Alter found that —The merely operated a tool or business con as NAVL; ego alter was the 67; corporation. duit of id. at another See operat- that the companies also found two Branscum, Castleberry v. see also single Appel- enterprise. ed as business (Tex.1986).5 270, At a mini S.W.2d argue that findings lees these make the mum, he plaintiff prove must “[t]he companies jointly severally liable two basically has victim to a unfair de fallen percentage for each other’s of causation as subsidiary] [the been vice which has jury. Appellants argue found there an inequitable used to result.” See achieve piercing is no evidence would allow Indus., Lucas v. Texas Inc. 696 S.W.2d veil, that, corporate absence (Tex.1984). To recover under evidence, of such the trial should court single no finding enterprise, of a business ignored both finding have “alter instead, proof required; of fraud ego” finding and the business “single enterprise theory single relies business enterprise.” Since the are two theories equity analogies partnership principles *16 distinct, analyze separately. will them (Boliv Aluminum liability. See Chems. ia), Inc., at 68. 28 S.W.3d “single ego”
“Alter
busi
enterprise”
ness
are not synonymous;
theories,
Here, both
ego
alter
separate
they
equitable
are
and distinct
single
enterprise, were submitted
business
theories, although similar in
See
purpose.
jury
to
answered both
(Bolivia),
v.
Aluminum Chems.
Inc. Bech
questions affirmatively.
appellants
The
64,
Corp.,
tel
28
(Tex.App.
S.W.3d
68
argue
legally
evidence was
that the
insuffi
h.).
2000, no pet.
ego
—Texarkana
The alter
cient
there was no evidence of two
because
applied
is
disregard
corpo
doctrine
elements of the two veil-
claimed essential
unity
rate fiction when there is such
be
First,
ar
piercing theories.
NAVL/NaTex
corporation
a
subsidiary
tween
its
gue
no evidence that the
there is
subsid
separateness
of the latter has ceased
(NaTex)
iary
presently incapable
is
of com
holding only
subsidiary
liable
next,
plaintiffs;
they argue
pensating the
injustice.
lead to
Harwood
would
See
showing
parent corpo
there
no
that the
is
Tire-Arlington, Inc. v.
S.W.2d
Young, 963
(NAVL)
corporate
ration
used the
fiction
881,
1998,
(Tex.App.
886
writ
Worth
— Fort
a
unfairly
wrong.
or to further
by agr.).
single
dism’d
business en
a
terprise
equitable
applied
subsidiary
is an
Evidence that
doctrine
principles
сapitalized
light
in
of the
partnership-type liability
reasonably
reflect
not
corporations
their
of its
a factor
integrate
when
re-
nature and risk
business is
R.S.,
215,
.05,
1993,
Castleberry
Leg.,
§ 2
5.
was
article
ch.
1993
overruled
73d
2.21(A)(3)
Corporation
418,
(current
of the Texas Business
at
446
version
Tex. Gen. Laws
Act, at least to the
to ob-
extent that failure
Corp.
(Vernon
Act Ann.
Tex. Bus.
art. 2.21
longer
corporate
a
serve
formalities is no
fac-
Supp.2001)).
7,
proving
ego.
May
alter
tor in
See Act
liable for the
corporation
constituent
Lu
each
veil-piercing.
in favor of
weighs
which
com
liabilities incurred
cas,
debts and
In this case there
at 375.
696 S.W.2d
Paramount Petrole
enterprise. See
insufficiently mon
was
was evidence
NaTex
Ctr.,
Rental
Corp.
Taylor
v.
um
the foreseeable- risk
capitalized
light of
534,
(Tex.App.
536-37
accidents such as this S.W.2d
major highway
— Houston
n.r.e.);
1986,
Old Re
writ ref.
testimony
Dist.]
that Na-
[14th
heard
one. The
Corp.,
Ins. Co. v. Ex-Im Servs.
subsidiary
public
of NAVL
wholly-owned
Tex is a
393,
(Tex.App.
office,
395-396
one
and seven S.W.2d
and that NaTex has
— Houston
writ).
1996,
single
busi
trucks,
no
Dist.]
over
[1st
and turns
employees, owns no
require
does not
However,
doctrine
enterprise
control ness
profits
all its
to NAVL.
joint
of a true
all the elements
proof
a
par
framework of
part of the normal
rather,
a
it is doc
partnership;
blending of venture
ent/subsidiary relationship, and
Equal right of
equity.
trine founded
insufficient to show
corporate activities is
example,
fоr
be
required,
not
control is
subsidiary
ego
is an alter
that the
deter
376;
try
does not
Lucas,
the doctrine
at
see
cause
parent. See
joint venture has
Clark,
a true
mine whether
Trailways, Inc. v.
also
doctrine looks to
been established.
(Tex.App. Corpus Christi
489-90
—
support a hold
denied).
noted,
equity
principles
if
have
see
As we
writ
be treated
entities should
ing
that the two
to hold that
sub
usually decline
courts
liability for their
purposes
unless
as one
ego
parent
of a
sidiary is the alter
subsidiary is a
acts.
entity of the
corporate
fraud,
avoid
used to commit
being
sham
law, the
with case
In accordance
the law.
responsibility, or break
financial
single
on the
instructed
properly
required
are
circumstances
Exceptional
corpora
theory: “Two
enterprise
business
Lucas, 696
remedy.
this
See
invoke
single
business
operated as
tions are
do not find such
at 374-375. We
S.W.2d
sep
operated
as
enterprise if
are
record. We hold
circumstances
entities,
integrate
rather
but
arate
is insufficient
the evidence
*17
business
achieve a common
resources
ego status.
jury’s finding of alter
in
properly
also
jury
was
purpose.”
considered
the factors to be
Enterprise— structed
Single Business
fac
those
as
making their determination
above,
enter
single
business
As noted
Petrole
out in Paramount
tors were set
ego
the alter
theory differs from
prise
536-37;
also
at
see
um. See 712 S.W.2d
fraud is re
showing
in that no
theory
248,
Timmons,
252
v.
are not Hall
corporations
quired; when two
1999,
pet.).6
no
(Tex.App.
instead
entities but
operated
separate
as
— Beaumont
finding
jury
attack
appellants
achieve a com Since
integrate their resources
sufficiency
legal
only
ground
on the
equitable,
may
it
be
purpose,
mon business
finding if
evidence,
uphold
we will
circumstances,
to hold
exceptional
under
names;
they
common business
utilized
given George
instruction
6. Unlike
Bien,
corporation
employees
one
S.W.2d
Enterprises, Inc. v.
900
whether the
Grubbs
1995),
337,
(Tex.
prop
here the
other cor-
338-339
behalf of the
services on
rendered
factors
consider the
erly
instructed to
were undocumented
poration; whether there
whether
Petroleum:
in Paramount
listed
corpora-
two
between the
of funds
transfers
employees
common
and NaTex had
NAVL
tions;
unclear alloca-
there was
and whether
centralized
and utilized
common offices
the two
profits and losses between
tion
corporation paid
accounting; whether one
corporations.
employees; whether
wages
other's
any
probative
there is
evidence of
value
We hold
there was sufficient
Estate,
support it.
In re King’s
150 Tex.
for the
that NAVL
evidence
find
(1951).
operated
single
and NaTex were
as a
busi
enterprise.
If
being
ness
the truck was
The evidence in
supports
this case
NAVL,
operated by or for
it was also
jury’s finding that NAVL and NaTex ran
NaTex;
being operated by or for
the re
their Texas operation
single
as a
business
verse would also be true because
are
enterprise.
exception,
With one
all the
single
enterprise.
legal
business
officers of NaTex were also officers of
jury findings
single
effect of the
is that the
everyone
NAVL and
at Na-
worked
enterprise consisting
business
of NAVL
Tex had a corresponding co-employment
statutory
and NaTex was the
employer of
with
employee
NAVL. The one
that did
Cartagena at the time of
accident.7
not also work for
NAVL was hired
and could be fired
NAVL. Na-
Responsibility
The PROPORTIONATE
Tex was created so that
agents
NAVL’s
Statute
pool
Texas “could
authority
and cre-
NaTex
argue
and NAVL
ate a broader coverage in the State.”
they cannot be held hable for each other’s
NAVL described its relationship with its
negligence
single
under the
en
business
agents as “a mutually dependent enter-
terprise doctrine
leg
because of the Texas
prise” and a cooperative enterprise with
replacement
islature’s
of common-law ap
shared goals and
responsibility.”
“shared
portionment in personal injury
with
cases
NAVL received all of
profits
of NaTex.
the proportionate
responsibility statute.
31, 1996,
May
On
accident,
the date of the
See
&
Tex.Civ.Prac.
Rem.Code Ann.
Cartagena,
Edwin
Lufkin Moving’s em-
33.013(a) (Vernon 1997);
§
see C & H
ployee, was wearing a NAVL uniform for a Nationwide, Inc. v.
tation. See id. The away ate did and responsibility liability. statute not do direct NaTex are application partnership with of negligence for the of vicariously liable theories, agency equita- nor did it replace statutory employee, Cartagena. imposing ble liability doctrines on one cor-
poration Holding for the- acts of another. Issue Crown component single each of a enter- business objections Appellants present several prise members’ negli- liable for all acts of question negligence the broad form sub- gence holding analogous partner one 5. jury Question Appel- mitted to partnership. for the acts of a liable We was argue question lants that the defective to the it overrule this issue extent asks us 1) in- erroneously in threе it respects: that NAVL and NaTex are not hold any jury structed the violations of However, pur- liable for each other’s acts. negligence regulation per federal created 33.013, provisions suant to the of section despite that the wreck se the fact occurred merge findings decline to 2) transfer; during in- an intrastate holding purpose of and NaTex erroneously struction allowed severally jointly and liable for the entire NAVL—negli- find interstate carrier — judgment under the terms of the statute. per Transpor- on the Texas gent se based The equitable doctrine of single business Code, which, according tation to appel- enterprise operates separately from the travel; lants, is to interstate applicable express applicability terms and of the stat- 3) right of control instruction erro- ute. neously Na- stated that both NAVL and had control legal right Tex over Cart- NaTex, Like NAVL and Lufkin if agena Moving either had and Lufkin Cartagena assert that the trial Moving. Citing some control over judgment holding jointly court’s them Court decision in Supreme recent severally wrong because it is con liable Casteel, 22 Crown Ins. Co. v. S.W.3d Life trary proportionate responsibility to the (Tex.2000), ask that the en- appellants statute. each was found less than Since case for a tire be reversed and remanded they joint cannot responsible, 50% be held trial. that the in- Appelleеs respond new ly severally liable under the statute. any defective and that structions were not 33.013(b). §See As we have aside the set error waived. jury findings conspiracy joint enter prise, holding no other there is basis for reject argument We the waiver damages beyond per them liable for objected appellants timely on the since liability assigned to them the centage appeal. grounds they now assert on We jury. jury was not whether asked objections analysis start our with single business en part were Supreme Court review Crown. terprise by NAVL and NaTex. operated “submitting held invalid the Crown no basis to the trial There is liability single in a broad form ories joint imposing and sever judgment court’s when it question is harmful error cannot *19 Cartagena al Lufkin Mov liability jury based its be determined whether ing. verdict on or more of invalid theo one
However, must ries.” Id. at 381. We determine undisputed Cartage- it is negligence whether the broad-form issue scope na in the course of his was liability; theories of Lufkin Lufkin submitted invalid employment Moving. for did, possible— therefore, if it determine —if is, vicariously liable for we must
123 (b) license; jury whether the its commercial driver’s 49 C.F.R. nevertheless based (1998), requires § which motor carri- theory. on a valid 395.8 verdict log driving ers to have their drivers their theory If an invalid submit according specified to a duty hours ted, if may the error be harmless can (c) (1988), format; § 49 390.11 C.F.R. jury determine that the did not base its that motor carriers have requirеs which theory verdict on the invalid rather on but comply regula- with federal drivers theory. appel a valid Id. at 388-89. An tions, including previously. the two cited may jury’s late court consider the answers 3.62(a) of Title of the Texas Section 37 determining to other issues in whether incorpo- explicitly Administrative Code error is harmless. See id. at 389. The rates sections 390 and 395 of the Code significant most answers to other is Regulations, including Federal the subsec- jury’s finding sues we consider are the tions 37 above. See Tex.Admin.Code moving being by that the van or used 3.62(a) (1996). § Section 383.23 of the at NAVL the time of the accident and Regulations simply Federal states that “no jury’s finding and NaTex person” operate shall a commercial vehicle single are a business enterprise. We first having taken and passed without written consider whether invalid theories were and driving comply tests that with federal submitted. standards; regulation’s language does 1) application regula- of federal prohibition not confine this to interstate tions to an intrastate It appears move: § trucking. Subject See 383.23. to certain uncontroverted that Cartagena was deliv- here, exceptions applicable regula- ering shipment i.e., an intrastate one that — apply tions Section 383 to both inter- did not cross state lines—at the time state and intrastate commerce. 49 See the wreck. The sixth and seventh para- (1997). Thus, § C.F.R. 383.3 all three fed- graрhs Question instruct the Question regulations general- eral 5 are any a violation of of several federal motor ly applicable to intrastate moves such as safety regulations carrier negli- constitutes this one.8 The trial court committed no gence per se on part of NAVL/NaTex. instructing ap- error in that the Appellants claim that application of pellants by regulations. were these bound these rules to an intrastate move is errone- 3.62(d)(4) exempts Section drivers ous and mandates reversal under Croum. traveling who are within a 150 air-mile disagree. We workplace log-keeping radius of their from
The federal regulations, para requirements; this move—-from phrased Question 5 and referenced may Port have been within this Arthur — hereafter, are all drawn from Title 49 of Appellants imply provi radius. that this (a) the Code of Regulations: erroneous, Federal Question sion despite renders (1992), § requires § C.F.R. 383.23 which incorporation Texas’s of 49 C.F.R. 395.8 drivers of possess commercial vehicles to into the Texas Administrative Code.9 3.62(a),(b)(3) 395.1(e) 8. exempts Section of the Texas Adminis- 9. Section a driver from terms, provides spe- trative Code that certain log requirement mandated section 395.8 if cifically foreign "interstate commerce” as operates the "driver within a 100 air-mile 382, 385, 386, 390-393, used in Parts reporting radius work loca- normal Regulations, 395-397 of the Code of Federal tion[.]” "will inсlude all movements motor vehi- cles, intrastate, both interstate and over the highways streets and of [Texas].” *20 3) preserved by “right this error The control” instruction: /NaTex of timely objecting Question that the para- Appellants right to 5’s also contend of in control instruction contained the fourth phrase Interestingly, of section 395.8. Question paragraph of 5 misstates the law there is no evidence in the record that the the judi- effectively legal “eliminat[es] if re- exemption applied. Even we take quirements corporate the fic- avoiding the cial notice that this move fell within [thereby] virtually tion and a radius, directed] 150 air-mile the in sec- exemption 3.62(d)(4) [appellees’] verdict the veil-piercing [for] contingent tion is nonetheless Presumably, theories.” this contention upon employer’s keeping an rec- detailed on phrases charge based the in the which ords a driver’s of on a of hours service jurors following: told the basis, regular or re- upon employer’s the quirement trips that on re- You that drivers such are instructed NAVL and/or “right turn their work location and released had a control” if to be NaTex either from within twelve both them work consecutive or retained some control 3.62(d)(4),(e)(3). § no per- hours. See There is over manner in which Lufkin the appellants require- met formed evidence either the work.... NAVL Na- and/or ment. Tex if “right had a of control” either of them ... power retained the to forbid 2) reg Texas application of likely in a being work done manner (NAVL): to an ulations interstate carrier to dangerous employees be to Lufkin’s regulations in paraphrased Texas others, added). (emphasis or Question apply are which simply those NaTex paragraph This treats NAVL and requirement section 383.23’s of a com entities, separate as is shown as operate com mercial driver’s license to a references to “either” and both.” “and/or vehicle, pro and section mercial 383.37’s they single It does assume not that were a against employer’s knowingly hibition enterprise, jurors nor does it instruct person a allowing a without commercial assumption. make such an instruction ve driver’s license drive commercial contains no error. substantive hicle. regula Section 383.3 of federal Moreover, already had found tions that in this expressly states “rules Question answer to van part [including apply section 383.23] being “by operated or for NAVL” at every who person operates commercial jury’s finding time the wreck. The (CMV) interstate, for motor vehicle Question being operat- 4 that the van was commerce, eign, all em or intrastate the time of the ed or for NAVL at all ployers persons, of such and to appeal; challenged wreck not regulations States.” Since federal make accept it have affirmed as true. We applicable these rules to all motor carri oper- and NaTex jury’s finding that NAVL ers, interstate, the trial intrastate enterprise, with single ated as a business court err in instructing did not Based the other’s conduct. each liable for they applicable were the defen fact, we can separate findings on these Also, have dants. since we affirmed jury’s finding was based confirm that the jury’s finding that NAVL and NaTex theory recovery. on valid acting enterprise, were as one business only single Cartagena say in holding there is no error enterprise responsible “join adopt” for com in and business in is- during Croum pliance regulations briefing with Texas NAVL/NaTex They any way shipments. trastate sues. do articulate *21 they Uniroyal condition. by dangerous which were harmed the form or of a See Martinez, 977 Question degree substance of To the Goodrich Tire Co. v. S.W.2d 5. (Tex.1998). 828, 340-44 less similar apply the issues discussed here accidents, however, probative less them, simply adopted argu- have the evidence. rejected. ments which we have believe the evidence of other We Evidence of Other Accidents probative accidents here is of the issue of NAVL and NaTex ask for a new trial have whether NAVL was aware or should allegedly because of the improper admis- been aware of the need to exercise care to prior sion into evidence of accidents involv- using un agents assure that its were not ing They argue NAVL truck drivers. qualified, falsifying unlicensed drivers or irrelevant, hearsay, evidence was and un- However, records. we also conclude some fairly prejudicial. Appellees contend that sufficiently proba of the was not evidence the circumstances of the other accidents tive to admission in the face of permit its substantially were similar to the accident objection probative an that the value was thereby probative here and of the issue of substantially outweighed by danger foreseeability unqualified drivers prejudice unfair to NAVL. See Tex.R. logs being by and falsified agents used — Evm 403. We find some of the evidence under NAVL’s in resulting acci- troubling control— in this case it hear because was Appellees dents. also assert that the evi- say presented through expert witness dence shows a disregard conscious in litigation who had also been involved the safety argue and further that NAVL had resulting from the other accidents. The warning fair it problem had a serious presented evidence the witness in one unqualified with drivers and falsified rec- watching stance was of a mother her chil trial, ords. At defendant Lufkin in a dren burn to death vehicle struck urged the admission of the evidence of obviously NAVL truck —evidence calculat (which other accidents did not involve Luf- jurors. ed to stir the emotions of the kin Moving) response charge to NAVL’s put position NAVL was in the unfair that Lufkin Moving committed fraud responding either not to the evidence using an unlicensed driver and later mis- or, effect, re-litigating other accidents representing apparently on the the facts or merits of its defense each of fact— basis that whatever Lufkin Moving did trial the other cases. We believe the court should have surprise been a to NAVL in admitting erred the evidence of other agents because other thing. did the same accidents in the manner submitted. of substantially Proof similar The question we must next an may accidents if be admissible relevant to swer whether the admission of this evi contested issues. requires See McEwen v. Wal- dence reversal trial. new Stores, Inc., (Tex. 25, Mart The standard of review for er reversible denied). App. pet. Antonio ror in admission of evidence strict. The — San Past accidents of the type Supreme same which Court has held that errors in plaintiffs claim guarded admitting should have been evidence are un not reversible against may suggest that a improperly defendant less the admitted evidence con judgment should have foreseen the possibility trolled the is not cumulative issue; substantially accident at evidence of properly of other admitted evidence. Gee Co., Liberty similar accidents has been held relevant to v. Mut. Fire Ins. (Tex.1989). Gee, knowledge such issues as the defendant’s the Cоurt *22 126 judge strengths than this to the
instructed that “we must review the entire tion Court party’s each judgment record to the and weaknesses of evidence. determine whether may if this think by testimony the Even a different was controlled that Court reasonable, not review allocation is more we will should have been excluded.” Our jury findings to the and remand this of the record leads us believe that the disturb unless that judgment the evi- case for new trial we find was not controlled support to Simply put, of there is insufficient evidence dence other accidents. evidence, findings. the there considerable other as decision, support described in this to the liability If one of NaTex and views the jury’s negligence by finding of NAVL/Na- vicarious, it being as indirect NAVL the acci- proximately Tex which caused may illogical greater seem to hold them at dent, signifi- and trial was the not diverted the driver. responsibility negligent than controlled, cantly, judgment or the the However, may have jury reasonably the accidents, concerning testimony other of approached the allocation causation evi- The contains other record substantial only on ways. focusing other Rather than consequences negli- dence that the of their shortly the actions occurred before that to decline gence were foreseeable. We accident, jury may the have focused on the require a trial case based on new this greatest responsibility those the who had admitting the error in the of oth- evidence unlicensed, being an unskilled driver er accidents. the wheel of a commercial van behind place. jury found each de- the first The Responsibility Jury’s The Allocation of an negligent. employee, fendant As Cart- jury’s allo- NAVL NaTex attack the and Moving to by Lufkin agena assigned was de- responsibility among cation of the four van; that in- complied he with drive logic They argue fendants. it defies that jury also heard evidence struction. negligent responsi- to hold 5% driver that from which could have concluded ble, employ- truck negligent owner greater had control NaTex 35% er 20% assess responsible, yet Moving. their than shipments over Na- responsibility respectively and 40% evidence, the reason- upon Based that Tex and NAVL. par- ably could determined that have position to have ties who were in the best given latitude wide that were those prevented this accident as performing duty its sworn to serve placed had the most control over who was allocating responsibility factfinder in for an wheel; reasonably behind PRAC. & Rem. pursuant accident Civ. Tex. Na- have that NAVL and could concluded (Vernon 1997). § Even 33.003 Code Ann. shipments. were in Tex control support if the evidence could different view may have different percentage responsibility, allocation While responsibility judg proper not its assessment аppellate may court substitute the factual conclu- may agree ment for See Samco with jury. that of Cheatham, NaTex were neces- Properties, Inc. v. 977 S.W.2d sion this 469, sarily position prevent in the (Tex.App [14th 478 best Dist.] . —Houston denied). we can- 1998, jurors occurring, from pet. particular in this case accident is insufficient evidence say two not there approximately heard evidence over findings alloca- weeks, jury’s assess opportunity had the in our responsibility. As we noted and tion of credibility parties and demeanor of the analysis under our witnesses, posi- in a of the evidence and were much better review 569, (Tex.1979); also issue, see jury- proximate cause Regu Dep’t Protective & heard evidence from defendants’ witnesses Leal v. Texas (Tex. Servs., preventable. Appel- the accident latory principal argument against NaTex lees’ pet.). no App. — Austin *23 and NAVL is that the two carriers were Chapter 41 contains two definitions negligent failing put policies place in in “malice,” out of which10 is set the second already in those that failing enforce below: existed, negligent and that this exercise of “Malice” means: primary control the reason an unli- censed, in unskilled driver was involved hauling ship-
rear-end collision while
(B) an act or omission:
jury’s
ment.
do not find error in the
We
(i)
objectively from
which when viewed
responsibility.
allocation of
of the
аt the time
standpoint
the
actor
of its occurrence involves an extreme
Damages
Malice
Punitive
risk, considering
degree
proba-
NAVL,
found that Cartagena,
magnitude
potential
bility and
and NaTex acted with malice and assessed
others;
harm to
$5,400,000
punitive damages
in
against
(ii)
actual, subjec-
of which the actor has
$150,000 against
NAVL and
NaTex.
involved,
of the risk
tive awareness
punitive damages against
assessed no
proceeds
but nevertheless
with con-
Cartagena;
they were not asked to do so.
rights,
indifference to the
safe-
scious
These
appellants
three
contend that
of others.
ty or welfare
jury’s findings
insupportable.
of malice are
Ann.
Tex.
Prac. & Rem.Code
Civ.
Texas
regarding
punitive
law
41.001(7)(B) (Vernon 1997).
§
This is the
damages
Chapter
is codified in
41 of the
presented
definition which was
to the
Texas Civil Practices and Remedies Code.
Question
in
15.
punitive damages
limits
in
Code
com
Chapter 41’s second definition
mon
tort
law
actions to cases where the
malice,
like its common law ancestor
plaintiff
proven
by
has
malice
fraud or
convincing
“gross negligence,”
prongs:
“clear
consists of two
evidence.” See
Tex.
(Ver
§
refer
Civ. Prac. & Rem.Code Ann.
41.003
Part one describes what Texas courts
1997). Chapter
objective prong,
part
non
41 defines “clear and to as the
two
subjective
convincing”
degree
prong.
as the “measure or
of defines the
See Wal-
Alexander,
Stores,
proof
produce
that will
the mind of the Mart
Inc. v.
(Tex.1993).
trier of fact a firm belief or
Malice involves
conviction as
325-26
allegations sought
culpable
ordinary negli
the truth of the
more
conduct than
to be
to both elements.
Id.
gence
respect
established.” Tex. Civ. Prac. & Rem.Code
with
(Vernon 1997).
41.001(2)
Objectively,
§
conduct must
“Clear
defendant’s
Ann.
harm,
convincing
risk of
a thresh
evidence” is an intermedi
involve an extreme
objective
than the
“beyond
significantly higher
less than
a old
proof,
ate burden
person
negligence.
test for
Id.
greater
reasonable doubt” but
than
reasonable
must
Subjectively,
at 326.
the defendant
“preponder
usual standard
civil cases of
risk
have actual awareness of the extreme
Addington,
ance of the evidence.” State v.
41.001(7)(A)
alleged by
appel-
malice was not
10.
also defines malice as
ration of
Section
specific
defendant to
jury.
"a
intent
cause
lees and was not submitted to
injury to the claimant.” This defi-
substantial
However,
Transportation
allegedly
mag-
occurred.
created
the conduct.
(Tex.
Moriel,
injury may
entirely
be
Ins. Co. v.
nitude of
1994).
disproportionate to the riskiness of
somebody
If
has suffered
behavior....
finding
For a
of malice to be
be the
grave injury, may
it
nevertheless
appeal, legally
sufficient evi
sustained
it,
behavior which caused
case that the
“must
both that the act was
dencе
show
and without
prospectively
viewed
harm and that
likely to result
serious
hindsight,
great
created no
benefit of
consciously indifferent
the defendant was
case,
danger.
punitive
In such a
dam-
(emphasis
of harm.”
Id.
risk
ages
appropriate.
are not
Corp. v. El
original); see also Mobil Oil
*24
(Tex.1998).
lender,
917, 921
Moriel,
add-
(emphasis
realized it have been the awards, need not consider damage speaking method of with candor about ser- objection NaTex’s to the NAVL’s and *25 case, In either it ious issues. we believe in testimony punitive admission of the probative has no value as to either damage phase suggesting the existence objective subjective prongs or statu- this If we were to sustain of insurance. tory definition malice. remedy a new challenge, the would be The criticisms and of- recommendations already trial. we have determined Since by safety fered two outside consultants to punitive are not entitled appellees that proffered hired NAVL are as evidence necessary it not to consider damages, of, safety ignored, that NAVL knew and request for a new appellants’ alternative problems; corporate but the fact that a damages. punitive trial on defendant hired outside consultants hopes improving safety performance its The Robinson Issue probative not the contention that it is
consciously indifferent to and NaTex contend that extreme risks. addition, testimony court abused its discretion in ad NAVL offered the trial through effect that it animation mitting computer had acted on recom- testimony Savage, engineer an who reports. mendations contained of Carl Greek, safety Brent NAVL’s at on behalf of Ford.11 While Sav director testified wreck, age’s the time of the that credentials as a crash worthiness testified substantial, appellants contend implemented expert had most of the recommen- are illustrating animation his report by computer in a 1990 the time he that a datiоns testimony did not meet Robinson stan took in 1993. Greek offered further office reliability, and that ad testimony that NAVL had dards of scientific uncontroverted caused the rendi accident record mission of the evidence improvement a 80% its E.I. improper verdict. See du from as measured tion of 1998 Robinson, v. to the De- Pont de Nemours & Co. reportable number of accidents (Tex.1995). that We find Transportation. The evidence S.W.2d 549 partment of objections NAVL and NaTex waived does not demonstrate that NAVL/NaTex to this evidence. acted with malice. issue. Moving Cartagena adopted brief on Robinson
11. Lufkin NAVL/NaTex's 342; Speier College, Bron- v. NAVL and NaTex claim the Ford Webster (Tex.1981). con- co seat was defective and defect injuries. Savage Emmons’ be- tributed to Cartagena state seconds, few during lieves that first “join in adopt” their brief that in the back the rear seat struck Emmons challenge computer to the video. NAVL’s neck, opined of the head and but he rejected challenge. have We collapse “yielding” of Emmons’ seat spinal and did occurred after the fracture Conclusion injuries. contribute Emmons’ jury’s findings regarding affirm the We cause, percent- negligence, proximate Savage opinion during disclosed this age judgment affirm the as causation. We pre-trial deposition testimony, and the trial damages appellees; for all how- to actual court denied NAVL’s motion to exclude his ever, holding regarding joint in light of our trial, for, testimony. Savage At asked liability, judg- order the and several gave, opinion timely this without ob jury’s conform to the ment reformed to However, jection. object did appellants of cau- findings pertaining percentages computer-generated the admission of two jury’s finding sation. We affirm of the com pictures animations still single business NAVL and NaTex were puter depict animation —all intended to enterprise respect op- with to their Texas Savage’s testimony and version of events. erations; they are liable for each other’s The trial court admitted them all. NAVL negligence. deny appellants’ requests We gave exagger contends that the animation trial. for a new emphasis guess ated to an educated *26 However, reverse the trial court’s we Savage’s part, Supreme in violation of the joint liability, findings of and several can holding expert testimony Court’s support we find insufficient evidence rely speculation and “possibility, jury findings conspiracy, ego, of alter surmise.” See Merrell Dow Pharmaceuti joint As we also find no basis enterprise. (Tex. Havner, cals 711 v. malice, vacate jury’s findings for the 1997) Employers’ Texas (citing v. Schaefer punitive findings and the award of (Tex. Ass’n, Ins. appellees and order that recover damages 1980)). damages. punitive no judgment argu Specifically, we order prоblem The with NAVL’s Cartagena is lia- provide ex modified to Savage ment is that was allowed to opinion objec judgment, without ble for 5% of the press underlying his 20%, liable for 35% liable for NaTex is testimony presented tion when the was to is 40%, liable for based on the jury. the animation was a and NAVL is Since responsibility. addi- graphic depiction opinion jury’s of the admitted allocation tion, that Luf- objection, judgment provide is to into evidence without NAVL’s NaTex, and NAVL are each objection depiction Moving, trial to the video of that kin re- vicariously Cartagena’s 5% animation and liable for opinion was waived. Video Also, NAVL are NaTex and sponsibility. evidence that “sum other demonstrative re- marize, percentage perhaps emphasize, testimony liable for each other’s are liable underlying testimony sponsibility. if the NaTex and NAVL are admissible evidence, in addi- together judgment, for 75% of the has been admitted into or is sub Cartage- liability for admitted into evidence.” See tion to their vicarious sequently Co., jointly and defendant is Tire at na’s share. No Uniroyal Goodrich S.W.2d serious bodi- at risk for judgment. placed people severally for the entire liable ample heard evidence ly injury. The provide that no defen- judgment is to prob- awareness of a exemplary damages. NorthAmerican’s dant is hable for drivers. or unlicensed unqualified lem with IN AND RENDERED REVERSED Moreover, to set their is not asked PART, REFORMED, IN AFFIRMED еxperiences aside. sense and life common PART, REMANDED ENTRY AND FOR they appre- motoring public part As IN COMPLIANCE OF JUDGMENT large, loaded potential dangers ciate the THIS OPINION. WITH speed at or above the traveling trucks dam- uphold punitive I limit. would Justice, BURGESS, concurring respectfully I regard, in this ages and dissenting. dissent. opin- generally I concur a well-written I my justice. However ion brother remarks and
must add some additional part. dissent in majority admitting evidence holds the other accidents was error. I believe sufficiently probative all the evidence INC., STORES, MINYARD FOOD and, certainly prejudicial, proba- while Heflin, Appellants, Leslie W. substantially outweighed the tive value effect. prejudicial v. majority agree infers do not GOODMAN, Appellee. Kay Brenda jury’s responsibili-
with the assessment of No. 2-99-360-CV. join I ty. do not inference would make no comment other than to Texas, Appeals of Court of hold the evidence sufficient to Fort Worth.
jury’s findings. 28, 2001. June *27 majority’s totally disagree I with the punitive damages. rendition of the
majority “Cartegena was not driv- states:
ing faster than other vehicles appreciably However, a recon- highway....”
on the opined Cartegena was expert struction in a 60 traveling per 61-65 miles hour Furthermore, not per mile hour zone. Cartegena not a commer- only possess did license, were cial driver’s but the reasons had right eye in his he was blind of these failed the written exam. Both superiors. his reasons were known to vice-president Even a for NorthAmerican allowing an un- Lines testified that Van a NorthAmerican operate safe driver to placed shipment Van Lines’ or NATEX degree in an extreme of risk public