Texas Personal Injury Podcast

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Attorney Jay Jackson III

Jay Jackson III, a personal injury attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, discusses recent rulings by the Texas Supreme Court and what they mean for plaintiffs. New legislature includes big benefits for employers, while limiting compensation available to victims of work injuries, personal injuries and wrongful death. Other rulings affect the Texas statute of limitations and include new requirements for Texas trial judges.

Case Summaries

Ashley v. Hawkins, 293 S.W.3d 175

After a collision, defendant moved out of state. Plaintiff sued within the limitations period, but did not obtain service until about a year after limitations expired. The Supreme Court ruled that limitations were not tolled even though defendant was out of state, since there was an alternate way to serve her, and that plaintiff did not prove that she diligently tried to obtain service.
Although § 16.063 “suspends the running of the applicable statute of limitations for the period of the person’s absence” from the state, in Kerlin the Supreme Court held that if “‘a nonresident is amenable to service of process under the longarm statute and has contacts with the state sufficient to afford personal jurisdiction . . . then we can discern no reason why a nonresident’s ‘presence’ in this state would not be established for purposes of the tolling statute.’” Because “Ashley committed a tort in Montgomery County, Texas . . . [she] was present in Texas and amenable to service under the longarm statute.” “The general longarm statute not only provided for substituted service, but also established a nonresident’s presence in the state for purposes of personal jurisdiction.” Here, “Ashley was amenable to service under both section 17.062 (service on the Chairman of the Transportation Commission) and section 17.044 (service on the Secretary of State). . . .” “Therefore we overrule Dietz and hold . . . that a defendant is ‘present’ in Texas, for purposes of the tolling statute, if he or she is amenable to service under the general longarm statute, as long as the defendant has ‘contacts with the state sufficient to afford personal jurisdiction.’” Since “we hold that section 16.063 does not toll the limitations period, Hawkins was required to file suit and serve Ashley by” two years after the collision.
“If a party files its petition within the limitations period, service outside the limitations period may still be valid if the plaintiff exercises diligence in procuring service on the defendant. When a defendant has affirmatively pleaded the defense of limitations, and shown that service was not timely, the burden shifts to the plaintiff to prove diligence. Diligence is determined by asking ‘whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served.’ . . . [A] plaintiff’s explanation may demonstrate a lack of diligence as a matter of law, ‘when one or more lapses between service efforts are unexplained or patently unreasonable.’” Here, there was no “fact issue as to diligence, as this eight-month gap in time is left unexplained.” “As a comparison, in Proulx, we held that a plaintiff’s thirty-seven attempts at five different addresses over the course of nine months exhibited continuing diligence to preclude summary judgment. . . . In Gant, however, we held that a plaintiff was not diligent as a matter of law where no explanation was offered for gaps in service for three different periods ranging from six to twenty months. . . . [W]hile the time period is important, . . . we must consider the overall effort expended over the gap in service, and whether the search ceased to be reasonable, especially when other methods of service were available.” In this case, “if Hawkins was unable to locate Ashley, or if Hawkins thought Ashley was evading service, other methods of service were available. . . [but] no substitute service such as service by publication was attempted.” “Although service by publication should not be a first resort, when a plaintiff is continuously unable to locate a defendant, its availability should not be overlooked.”

Galbraith Engineering Consultants, Inc., v. Pochucha S.W.3d 863

Homeowners sued builder because of water damage after a rain; builder later designated Galbraith, the engineers, a responsible third party. When homeowners then sued engineers within 60 days, engineers pleaded that the statue of repose barred the suit since they were added more than 10 years after the project. The Supreme Court held that Chapter 33 did not “revive claims extinguished by a statute of repose.”
“Section 16.008 of the Civil Practice and Remedies Code is a statute of repose . . . [that] bars a claim for damages relating to the design, plan, or inspection of the construction of an improvement to real property ten years after the substantial completion of the improvement by an engineer, among others.”
A “responsible third party may include any person who is alleged to have caused in any way the harm for which the claimant seeks damages. When such a designation is made, a claimant may also be able to join that person as a defendant, and, if joinder is sought within sixty days of the designation, limitations cannot be raised as a bar.” But, there are “significant distinctions between” a statute of repose and a statute of limitations. “Statutes of repose typically provide a definitive date beyond which an action cannot be filed.” So, a statue of repose “can cut off rights of action before they accrue.” “[S]tatutes of limitations operate procedurally to bar the enforcement of a right, [but] a statute of repose takes away the right altogether, creating a substantive right to be free of liability after a specified time. Thus, the purpose of a statute of repose is to provide ‘absolute protection to certain parties from the burden of indefinite potential liability.’” Under “section 33.004(e) . . . a responsible third party may be subject to a longer period of repose or none at all, creating an opportunity for revival many months or years beyond the ten-year period of repose prescribed by section 16.008. A products liability claim would be an example of this.”
“The question here . . . is did the Legislature intend for [section 33.004(e)] to operate as a general exception to periods of repose.” “Statutory construction is a question of law we review de novo. In construing statutes, our primary objective is to give effect to the Legislature’s intent as expressed in the statute’s language. If the words of a statute are clear and unambiguous, we apply them according to their plain and common meaning.” But, here, it is unclear “whether the Legislature intended the term ‘limitations’ in section 33.004(e) to apply narrowly to statutes of limitations or more broadly to include statutes of repose.” Therefore, “we may resort to additional construction aids, such as the objective of the law, the legislative history, the common law or former statutory provisions, including laws on the same or similar subject, and the consequences of a particular construction.”
In this case, the “consequence . . . informs our decision.” A statute of repose represents the Legislature’s judgment that a statue of limitations is inadequate.
“The proportionate responsibility scheme of chapter 33 . . . is a complex statutory scheme for the comparative apportionment of responsibility among parties in most tort actions in Texas. Although the scheme initially equated responsibility with liability to the plaintiff or claimant, this is no longer the case. Thus, a defendant may designate a responsible third party even though that party possesses a defense to liability, or cannot be formally joined as a defendant, or both. . . . [Responsible third parties] are defined to include ‘any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought. . . .’ [We see] . . . nothing in section 33.004 or the proportionate responsibility scheme to convince us that the Legislature intended to revive claims extinguished by a statute of repose. . . . Because application of the revival statute in this instance effectively renders the period of repose indefinite, a consequence clearly incompatible with the purpose for such statutes, we conclude that the Legislature intended for the term ‘limitations’ in section 33.004(e) to refer only to statutes of limitations.”

In re Columbia Medical Center of Las Colinas, Subsidiary, L.P. d/b/a Las Colinas Medical Center, et al., 290 S.W.3d 204

After plaintiffs lost the verdict in a medical malpractice death case, the trial judge granted a new trial “in the interest of justice and fairness.” The Supreme Court granted mandamus relief. “[J]ust as appellate courts that set aside jury verdicts are required to detail reasons for doing so, trial courts must give more explanation than ‘in the interest of justice’ for setting aside a jury verdict. . . . [It must] specifically set out the reasons for which it set aside the jury verdict and granted a new trial.”
Decedent died two days after entering a hospital with kidney stones. After a four-week trial, the jury returned a defense verdict. The trial judge granted plaintiffs’ motion for new trial, and the defense sought a mandamus requiring him to enter a judgment for the defense or set our reasons for the new trial. The mandamus was abated when a new judge was elected, but he also granted the new trial. “We direct the trial court to specify its reasons for disregarding the jury’s verdict and granting a new trial. . . .”
Mandamus here is appropriate because the circumstances are “exceptional,” like the pre-suit waiver of a jury trial.
“Our decisions have approved the practice of trial courts failing to specify reasons for setting aside jury verdicts. . . [new trial orders are not reviewable except for] two instances: . . . when the trial court’s order was void or the trial court erroneously concluded that the jury’s answers to special issues were irreconcilably in conflict.”
Rules 320, 321 and 322 relate to motions for new trial. “[N]ew trials may be granted for good cause on motion of a party or on the trial court’s own motion. . . . [The] motion must be in such form that the bases for the motion can be clearly identified and understood by the trial court.” “Not more than two new trials may be granted for either party in the same cause because of insufficiency or weight of the evidence.”
Trial courts have “broad discretion in granting new trials. But that discretion is not limitless.” “[N]o court is free to simply substitute its judgment for that of the jury and . . . applying different standards for trial courts and courts of appeals could lead to inconsistent results because a trial court’s decision as to remittitur could stand when the same conclusion by a court of appeals would not.” “[T]he amount of discretion Texas trial courts possess to overturn jury verdicts and grant new trials is broad but has limits, [such as] . . . . for sufficiency or weight of the evidence, [and] when damages are ‘manifestly’ too small or too large, and for ‘good cause.’” Footnote 3: That does not mean “just any cause.” “[G]ood cause” is not defined “in this context, and we do not now undertake to do so. . . . [T]he fact that the right to jury trial is . . . provided for in both the Federal and State Constitutions counsels against courts setting aside jury verdicts for less than specific, significant, and proper reasons.”
“The standards by which trial judges and appellate judges may set aside or overturn a jury verdict are different. . . . [A] trial court . . . [may] set aside a jury verdict . . . on its own motion.” But here, the “trial court’s . . . failing to give its reasons . . . was arbitrary and an abuse of discretion.” It may “grant a new trial ‘in the interest of justice.’” But the “parties and public are entitled to an understandable, reasonably specific explanation why. . . .” “Broad statements such as ‘in the interest of justice’ are not sufficiently specific.”

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433

Entergy hired IMC, plaintiff’s employer, for maintenance and repair of Entergy’s facilities. Pursuant to a written agreement, Entergy provided workers’ compensation insurance. After plaintiff was hurt, he applied for and received worker’s compensation benefits. He then sued Entergy. The Supreme Court held that Entergy was entitled to the “exclusive remedy” defense (limiting the worker’s recovery to worker’s compensation benefits) even though it was a premises owner and not a general contractor. “We hold that the exclusive remedy defense for qualifying general contractors is . . . available to premises owners who meet the Act’s definition of ‘general contractor,’ and who also provide workers’ compensation insurance to lower-tier subcontractors’ employees.” Here, Entergy qualified.
The “availability and adequacy of workers’ compensation benefits is a purely legislative matter.” For a general contractor to qualify for immunity from suits by the employees of subcontractors, it “must enter into a written agreement under which the general contractor provides workers’ compensation insurance coverage to the subcontractor and the employees of the subcontractor.” Here, as matter of law, the evidence showed that the appropriate Entergy entity satisfied the “written agreement requirement. . . .”
“The meaning of a statute is a legal question, which we review de novo to ascertain and give effect to the Legislature’s intent. Where text is clear, text is determinative of that intent. . . . This general rule applies unless enforcing the plain language of the statute as written would produce absurd results. Therefore, our practice when construing a statute is to recognize that ‘the words [the Legislature] chooses should be the surest guide to legislative intent.’ Only when those words are ambiguous do we ‘resort to rules of construction or extrinsic aids.’”
For the term “general contractor,” “[w]e do not look to the ordinary, or commonly understood, meaning of the term because the Legislature has supplied its own definition, which we are bound to follow.” A “premises owner” can be a “person” under the statute. But since the words within the statutory definition are not defined, “we apply a meaning that is consistent with the common understanding of those terms,” which in this case came from Black’s Law Dictionary. Since a premise owner can “undertake[] to procure the performance of work,” it “can be a general contractor.”
The “deemed employer” section in the act goes back to 1917, using the term “subscriber.” That term was kept in 1983, when “the Legislature added the ‘written agreement’ provision.” The Court believes that the act “did not exclude primeses owners.” A premises owner “is free to do the work with its own employees, to directly contract with others to do the work, or to do the work using some combination of the two.” Entergy did what the law encourages, namely to take “out a workers’ compensation policy for the entire work site,” and is therefore a “‘subscriber.’”
The “statute is not written so restrictively as to encompass only a three-party relationship,” between owner, general contractor, and subcontractor. One narrow exception, for transportation services, should not be read “broadly.” The definition specifying types of included contractors, has a “non-exclusive” list. “[W]e have been instructed that ‘[i]ncludes’ and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration. . . .’” Moreover, excluding owners would render “meaningless . . . how a general contractor ‘undertakes to procure the performance of work.’” The Legislature “at least contemplated the existence of a premises owner who may want to act as its own general contractor.” “[W]e do not interpret a statute in a manner that renders parts of it meaningless.” “Since the Legislature provided its own definition for ‘general contractor,’ we elevate the Legislature’s substituted meaning even when it departs from the term’s ordinary meaning.”
“[W]e do not resort to such extrinsic aides [as the legislative history] unless the plain language is ambiguous.” But here, it favors Entergy. The Court will “attach no controlling significance to the Legislature’s failure to enact” legislation; it is “‘perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.’” Because the act deleted a phrase, “[w]e give weight to the deletion of the phrase ‘with another party’ from the amended definition since we presume that deletions are intentional and that lawmakers enact statutes with complete knowledge of existing law. It is, of course, axiomatic that the deletion of language better indicates the Legislature’s intent to remove its effect, rather than to preserve it. . . . [W]e should always refrain from rewriting text that lawmakers chose, but we should be particularly unwilling to reinsert language that the Legislature has elected to delete.” The Court should “likewise decline consideration of lawmakers’ post-hoc statements as to what a statute means. It has been our consistent view that ‘[e]xplanations produced, after the fact, by individual legislators are not statutory history, and can provide little guidance as to what the legislature collectively intended.’”
Finally, “it makes no sense to read the statute” to allow the owner the exclusive remedy defense for its own employees and not the contractor’s employees “working side-by-side” with them. The statute’s policy is to encourage “provision of wokers’ compensation coverage.”

Nabors Drilling, U.S.A., Inc. v. Escoto, et al., 288 S.W.3d 401

Employee left work after a lengthy and exhausting shift, and while driving home, crossed the centerline and caused a fatal collision. The jury found the employee 57% at fault and his employer 43% at fault. The Supreme Court ruled that “that the employer had no duty to prevent injury due to the fatigue of its off-duty employee or to train employees about the dangers of fatigue.”
“An employer ordinarily will not be liable for torts committed by off-duty employees except when the torts were committed on the employer’s premises or with the employer’s chattels.” However, “under certain circumstances the employment relationship may impose limited duties on employers to control the activities of employees. See Love, 92 S.W.3d at 457; Otis, 668 S.W.2d at 311. Those situations have arisen when an employer affirmatively exercised control over its employee because of that employee’s incapacity . . . and when an employer required its employee to consume alcohol to the point of intoxication while working. . . .”
“Otis owed a duty . . . ‘because of the employer’s negligent exercise of control over the employee. The defendant acted affirmatively in sending the drunken employee home and created an unreasonable and foreseeable risk of harm to others.’” [Here,] Nabors did not have the requisite knowledge of employee impairment, nor did it exercise the requisite control. . . .” There must be “more than [a] general awareness fo employee fatigue;” the employer must have “actual knowledge that its employee was impaired. . . .” Additionally, “the employer must affirmatively exercise control over the incapacitated employee.” Here, “Nabors did not exercise any post-incapacity control. . . .” It merely established “work conditions and set[] the shift work schedule. . . . But Otis requires an affirmative act of control following, and prompted by, the employee’s incapacity.” Therefore, since “Nabors took no affirmative action as a result of any perceived employee fatigue or incapacity . . . Nabors owed no legal duty to the plaintiffs. . . .”
Additionally, unlike Love, “impairment was [not] a condition of Ambriz’s employment, or even . . . an inevitable consequence. . . .” Therefore, the “limited duty recognized in Love does not apply.” The Court also notes that “fatigue is distinguishable from intoxication. . . [because] there is no quantitative physical measure of fatigue. . . .”
“We acknowledge that traffic accidents may occur when drivers are excessively fatigued, but we do not believe that this generally known risk of driving while fatigued justifies holding an employer liable for an employee’s off-duty fatigue-related automobile accident.” Considering whether “Nabors affirmatively created a dangerous situation. . . we cannot say that Nabors created any significant foreseeable risk of harm to Texas motorists.” And, “foreseeablity alone is not sufficient to create a new duty.”
Further, “[h]aving held that there is no employer duty with respect to off-duty accidents involving fatigue, we also decline to create a new duty requiring employers to train employees about fatigue.” An “employer has a duty to ‘warn an employee of the hazards of employment and provide needed safety equipment or assistance.’ . . . However, the employer ‘owes no duty to warn of hazards that are commonly known or already appreciated by the employee.’” “[B]ecause the risk associated with driving while fatigued is common knowledge and appears to have been appreciated by Ambriz, Nabors owed no duty to train employees about those risks.”

Transcripts

Host: This week’s topic is Texas Supreme court recent rulings. Presented

by Jay Jackson, a trial attorney with ABRAHAM, Watkins, NICHOLS, SORRELS, AGOSTO & FRIEND in Houston Texas. Mr. Jackson and I will be discussing recent holdings from the Texas Supreme Court. Thank you for joining us today, Jay.

Jay: I’m very glad to join you.

Host: So, my first question is, how has the Supreme Court altered the

statute of limitations recently.

Jay: Well, there was a case called Ashley vs. Hawkins, the opinion was

handed down June 2009. That was a car accident case where someone was injured by the fault of another driver. The driver that caused the wreck lived in Texas, but then moved out of the state. Now, before this case, the Texas Legislature had passed a statute that said that as long as the opposing party has moved out of the state then the statute of limitations, which normally is two years, will be tolled or suspended, as long as the defendant is out of state. That is §16.063. The Texas Supreme Court came along, and asked in Ashley v. Hawkins and said that, since you can serve a person out of state by delivering the suit papers to the Secretary of State or to the Department of Transportation, that that makes the defendant, “present in the state of Texas,” and so it doesn’t apply. The affect is, that any time a person causes a wreck in Texas and moves out of state, since you can serve the Secretary of State anyway, the provision that the Legislature made in §16.063 has essentially been written out of the law. You’ll never have a chance to take advantage of §16.063, which the Legislature has provided to those who are hurt, when the defendant moves out of state because you could always serve the secretary of state. So that is the way the Texas Supreme court has dramatically changed the statute of limitation law in Texas very recently.

Host: What is the statute of repose? And how has the Supreme Court

interpreted it?

Jay: Well, the statute of repose differs slightly from a statute of

limitations. A statute of limitations says that you have to bring suit within 2 years usually of the event that causes the injury, sometimes it is 4 or 1 year, depending on the kind of case, but normally it’s 2 years. That starts the clock running at the time of the injury. The

statute of repose says that you have to start filing the lawsuit within a certain amount of time after the carcass is made or a house is built. The statute of repose of Texas generally is 15 years. So, for a product, you have to bring suit within 15 years of when the product was first sold by the maker. That may occur if you don’t buy or use the product until longer than 15 years that it was manufactured, in that case you are just out of luck. Well, in the case called Galbraith Engineering Consultants of June 26, 2009, what happen was this, homeowners had bought a house from a builder and it had water damage because of rain. So the homeowner sued the builder. The builder later decided to designate the engineers as a responsible party, by doing that, the builder will be entitled to submit the potential fault of the engineer to the jury for the jury’s consideration, but the plaintiff would not be able to recover from the engineers. So the law has permitted the plaintiff then to sue the designated responsible third party, as long as they do so within 60 days of the designation. In this case the plaintiffs did that, but by the time the case got to the Supreme Court, the Texas Supreme Court said that the statute of repose trumps, so to speak, the responsible third party practice. So it allows the defendant to designate the engineer, it allows the jury to put fault on the engineer because there won’t be anybody there defending against us, there would be an empty chair, is where we stand. And yet the plaintiff can’t recover from them because it was after the statute repose, it was longer that the length of time that the plaintiff could have sued the engineers. So the builders get a chance to blame the empty chair, the plaintiff cannot recover from the empty chair.

Thanks for shedding some light on that. Has the Supreme Court changed any other procedural rule from the last year?

It has. It has done so, very dramatically in a case called Las Colinas. That was a medical malpractice death case. The man went into the hospital for a routine treatment of kidney stones and two days later he was dead. The plaintiff sued the hospital and after a four week trial. The jury returned a defense verdict. The trial judge observed the witnesses and listened to all the evidence, believed that that was unjust and granted a new trial. Now, for over a hundred years Texas trial judges have been allowed to grant a new trial in the interest of justice. The defense however appealed that, took it to the Texas Supreme Court and a the Supreme Court created a brand new rule that says the trial judge has to state all of his reasons for granting a new trial. Never before has a trial judge been required to do so, to state his reasons. He could simply grant it in the interest of justice. And so now the trial has been sent back down to the trial judge for

him to draft a paper or an order, setting forth all the reasons to grant a new trial. This is especially difficult in the Las Colinas case, because the trial judge that granted the new trial originally, is off of the bench, a new judge was elected, and since then while it’s been on appeal, still a third judge has been elected to that bench. So the third judge is going to have to go through the transcript of four weeks of trial to determine the reasons for granting a new trial.

Host: How has the Supreme Court reduced the rights of workers who are

injured on a job site?

Jay: Well recent times employers that are general contractors could buy

workers comp to cover not only their employee but all of the sub­contractors employees. In the workers comp laws in the state of Texas would allow there to be one recovery for the injured worker; workers comp only. Workers comp prohibited the employee from suing another company’s employees or other companies or the general contractor. But that law was specifically made for the general contractor by the legislature and it had very specific procedures that the general contractor had to follow. Well the case that attracted all the attention was Entergy Gulf States. It was handed down in April of 2009, and the Texas Supreme Court in that case, basically, said that even though Entergy was not the general contractor it was only the land owner, it nevertheless could take advantage of the workers comp statute. It could in essence be the general contractor since it had hired the subs itself directly. So the Supreme Court expanded the prohibition that was imposed upon employees from suing the responsible party that caused their injury and limiting only the worker comp to include now the plant owner when it formally was designed specifically for general contractors. The reason that is important is that in the past if an injured worker had workers comp from his own job he would collect comp benefits from his employers workers comp, then if somebody else besides a fellow servant had caused his injury, he could sue that other person or company, if he collected, typically the amount of money was much larger that the very major comp benefits that our state allows. He would take the verdict and the money he collected from there and pay back workers comp and keep the difference himself. Now that has been eliminated entirely.

Host: So my last question is, what happens if a company works an employee

to the point of exhaustion and then he’s driving home and causes a fender line and kills someone?

Jay: Well the Nabors Drilling’s case that was handed down on June 19, of 2009 also favored employers. Prior to that case, there were two holdings that under specific circumstances required the employer to be responsible for the injuries caused by the employees on the way home. In one of the cases called Loved, a lady that was a topless dancer and was required to consume alcohol at work injured somebody on the way home because she was intoxicated. In the other case, in the Otis Engineering case a worker showed up at work intoxicated. Otis sent him home and on the way home he injured somebody. So that was the law prior to Nabors Drilling this summer. In Nabors Drilling, the worker was required to work in excessive 24 hours straight in an exhausting task on the drilling floor and then his shift was over and he was sent home, on the way home, because of fatigue, he crossed the center lane and kills somebody. So the family members of the person that was killed sued not only the employee, but also Nabors Drilling for sending him home when he was tired. The jury listened to all the evidence and said that the worker who crossed the center line 57% at fault and his employer Nabors Drilling was 43% at fault, after they listened to all the evidence. Well, the Texas Supreme Court said no, regardless of whether the evidence shows that the employer is at fault, we’re going to hold, in a matter of law that the employer cannot be at fault. They based that on two things. One was that they said that the employer did not know how tired the worker was and secondly they said that even though it’s foreseeable that a worker would be worked to the point of exhaustion and then injured somebody on the way home, foreseeability alone was not enough reason to impose liability. So, even though it’s foreseeable that there will be risk of harm for Texas motorist, forseeability alone is not sufficient to create a duty on the part of the employer. So that is another way that Texas employers have gotten benefit from the Texas Supreme Court to the detriment of those who have been injured by negligent parties.

Host: That is really interesting. Thanks so much, and I really appreciate your time today Jay.

Jay: I’m glad to join you.

Host: That concludes today’s conversation about Texas Supreme Court recent ruling. For more information, please visit our website at www.abrahamwatkins.com or call us at 713-222-7211 or toll free at 1-800-870-9584. Thank you for joining us today and we hope we’ve been helpful to you.