A case with an unusual procedural history, featuring a $116 million judgment, was recently decided in a 5-4 decision by the en banc Fourteenth Court of Appeals in Houston, and the court’s affirmance of the jury’s award has likely set the stage for a Texas Supreme Court showdown.
The May 18 ruling means the nine-figure judgment against trucking company Werner Enterprises and its driver Shiraz Ali will stand, for now. Werner had lodged six arguments on appeal — challenging the sufficiency of the evidence, the wording of the jury charge, admission of certain evidence and the damages awarded for future medical care — all of which were summarily rejected by the majority in an 89-page en banc opinion.
The lawsuit stems from a crash that happened Dec. 30, 2014, on Interstate 20 near Odessa, Texas, during a National Weather Service winter storm warning. Trey Salinas was driving a pickup truck and Jennifer Blake and her three children were passengers.
Salinas lost control of the truck, drifted across a 42-foot-wide grass median and hit the 18-wheeler driven by Ali, which was traveling at about 40 miles per hour, according to court documents.
One of Blake’s children died, and Blake and her two other children were seriously injured.
Blake sued Werner and Ali in Harris County, and the jury heard 25-days of testimony stretched over six weeks before awarding the family about $92 million, which has since increased with interest to about $116 million.
Among the information the jury heard was that Ali had received the second-lowest possible score on an evaluation by a Werner employee a couple weeks before the crash, that Ali knew he was driving in “freezing rain,” that black ice could be present in such conditions and that the interstate was “covered” in ice.
The jury was also told that Werner trained Ali on the consequences of losing control on ice and heard from a state trooper who ticketed a car for driving at an unsafe speed of 20 to 30 miles per hour on the same stretch of road after it crashed with another vehicle. Ali drove by that crash minutes before the crash with the Blake family happened.
The jury determined that Salinas was 16 percent responsible, Ali was 14 percent responsible and Werner was 70 percent responsible.
Harris County District Judge Ravi K. Sandill entered judgment in July 2018 and Werner filed notice of appeal with the Fourteenth Court of Appeals in October 2018. A three-justice panel of the court heard oral arguments in October 2019, according to court records, but then did something “exceedingly rare,” as Justice Randy Wilson wrote in his dissent.
“More than 20 months later in July 2021, five justices on this court voted sua sponte to order en banc consideration in the first instance, without the issuance of any panel opinions, even though the panel had generated a majority opinion and a dissenting opinion, each of which stood ready to be issued,” Justice Wilson wrote, noting no reasoning was given.
Supplemental briefing was called for, and the case was then submitted to the en banc court in October 2021. A narrow 5-4 majority of the court decided to hear the case without oral argument, without explanation.
“In its opinion today, the en banc majority continues to maintain its silence as to why the court went directly to en banc consideration without oral argument and without allowing the panel opinions to issue,” Justice Wilson wrote. “… the en banc majority has not explained why it did not let the panel opinions issue and then grant en banc reconsideration, which has been the standard practice of this court in such situations.”
Justice Meagan Hassan authored the 89-page en banc majority opinion, joined by Justices Frances Bourliot, Jerry Zimmerer, Charles A. Spain and Margaret “Meg” Poissant. All five of those justices are Democrats who were first elected to the court in November 2018’s “blue wave.”
Justice Hassan was part of the three-justice panel that heard oral arguments in October 2019, joined by former Chief Justice Kem Frost and Justice Ken Wise, both of whom are Republicans initially appointed to the court by former Gov. Rick Perry.
The dissenting opinions may provide some roadmap as to what arguments could be made on appeal to the Texas Supreme Court.
Chief Justice Tracy Christopher authored a dissent, in which Justices Kevin Jewell, Wilson and Wise joined in part. Justice Wilson also authored a separate dissent in which Justices Wise and Jewell joined.
Justice Christopher wrote she would remand the case for a new trial, citing Werner’s arguments that the jury charge contained “a Casteel problem” because some questions contained comingled valid and invalid liability theories. The comingling becomes a problem, and mandates a new trial take place, because it’s unclear whether the jury found liability based on the valid or invalid theory.
Precedent requires that the trial court “must identify the duty and the jury must be charged on that duty,” but that did not happen in this jury charge with respect to Werner’s duties, she wrote.
“Each individual juror was free to determine for himself or herself the duties that employees other than Ali owed,” she wrote. “Jurors were not even limited to considering duties owed to the Blakes. And because we cannot know what duties jurors decided upon, we cannot determine whether Werner actually owed such duties, much less whether the duty was breached or whether the breach was a proximate cause of the Blakes’ injuries. Thus, the trial court’s error in including this question is reversible.”
Chief Justice Christopher called the majority’s holding that Werner had not preserved its Casteel objections — despite specifically mentioning that case and pointing out its specific complaints with the jury charge — “frankly inexplicable.”
“Werner’s comprehensive Casteel objections far exceeded the level of specificity required to preserve its Casteel complaint for appellate review,” she wrote.
Justice Wilson focused his dissent on urging the court to adopt a rule that five of the state’s fourteen intermediate appellate courts — Dallas, Tyler, El Paso, Beaumont and the First Court of Appeals in Houston — have already adopted: The Admission Rule.
The rule states that when an employer admits an employee was acting in the course and scope of employment when an allegedly negligent act occurred, the party bringing suit is barred from pursuing derivative theories of negligence against the employer.
Werner had stipulated to that fact during trial, Justice Wilson wrote, which should bar as a matter of law Blake’s derivative negligence claims.
“If the employer admits that the employee’s negligence is to be imputed to the employer, there is no need to prove that the employer is liable, and thus any derivative theories are duplicative and unnecessary,” he wrote. “If both theories proceed after the employer admits its vicarious liability, a jury would be allowed to assess or apportion a principal’s liability twice… The Admission Rule prevents the fault of one party from being assessed twice and thereby avoids a ‘plainly illogical’ result.”
An illustration of his point, Justice Wilson wrote, exists in this case. In one question the jury answered that didn’t contain derivative liability theories, the juror assessed responsibility for the incident at 55 percent for Salinas and 45 percent for Ali.
But in an earlier question that included derivative theories, the jury returned apportionment as follows: 16 percent for Salinas and 84 percent for Werner and Ali.
“These arguments and questions concentrated the jury’s attention on the derivative theories and probably inflamed the jury against Werner, as shown by the jury’s finding in Question 5 (on which the trial court rendered judgment) that Werner’s negligence under the derivative theories caused or contributed to the Blake parties’ injuries five times as much as Ali’s negligence did and more than four times as much as Salinas’s negligence did,” he wrote.
Counsel for the parties didn’t respond to messages seeking comment Wednesday.
Werner is represented by R. Russell Hollenbeck, Thomas C. Wright and Brian J. Cathey of Wright Close & Barger and Amanda S. Hilty and Dale R. Mellencamp of Bair Hilty.
Blake is represented by Darrin Walker of Kingwood, Eric T. Penner and Kelley Peacock of The Penn Law Firm and Zona Jones and Harrison Steakley of Morrison Jones.
The case number is 14-18-00967-CV.