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Primoris Energy Services Corporation D/B/A Sprint Pipeline Services v. Thomas Myers
Citation: 569 S.W.3d 745Docket: 01-16-00631-CV
Court: Court of Appeals of Texas; December 12, 2018; Texas; State Appellate Court
Original Court Document: View Document
On December 13, 2018, the Texas Court of Appeals for the First District issued an opinion regarding the case Primoris Energy Services Corporation d/b/a Sprint Pipeline Services (Appellant) vs. Thomas Myers (Appellee), stemming from a trial court judgment in favor of Myers in a negligence suit. Following a settlement between the parties, the court dismissed the motion for rehearing and withdrew its prior opinion from August 30, 2018, issuing a new judgment. Myers alleged that Sprint, which secured an easement for transporting equipment to a pipeline project, was negligent in hiring Montgomery Trucking Company and its driver, Justin Thomas Baggett. On January 26, 2014, Baggett, while maneuvering an oversized truck through a narrow gate, collided with Myers, who was on his four-wheeler. This incident caused Myers severe injuries, including cervical disc herniation requiring surgery and ongoing pain. In his lawsuit, Myers claimed Sprint failed to properly train and equip its employees for safe operation, did not communicate effectively with Baggett, and neglected to address the dangerous conditions of the ingress and egress to his property. Myers sought damages for past and future pain, medical expenses, disfigurement, and economic losses due to his inability to manage his ranch post-injury. Sprint denied the allegations, attributing the collision to the negligence of Myers or others. The court affirmed parts of the trial court's judgment while reversing and remanding other aspects. In 2013, Myers granted BridgeTex Pipeline LLC an easement for pipeline construction on his 66-acre ranch in Montgomery, Texas, with Sprint as the contractor. Concerns were raised by Myers regarding the narrowness of the gate on his gravel driveway, which was the only access point for large trucks. Despite his suggestions for a separate construction entrance, both Sprint and BridgeTex declined. After an incident on January 8, 2014, where a truck damaged the gate, Sprint agreed to construct a new driveway and stationed spotters to assist truck navigation. On January 26, 2014, while inspecting the site, Myers witnessed another 18-wheeler strike his four-wheeler. Although he felt safe at that moment, the trailer hit his vehicle, causing him to experience immediate pain and long-term injuries. Initially, he did not notice any injuries but later sought medical attention due to increasing pain. He was diagnosed with six herniated discs and a compressed spinal cord, leading to a four-level disc-fusion surgery in August 2014. Post-surgery, while some improvement was noted, Myers experienced significant mobility and strength impairments, particularly in his right arm, limiting his ability to perform ranch maintenance and previous activities, such as carrying his daughter. He can still drive and operate a gun range but cannot manage the heavy equipment necessary for ranch upkeep, contributing to the deterioration of his property. Dr. Nilesh Kotecha, a board-certified neurosurgeon, performed a four-level fusion surgery on Myers, diagnosing him with multilevel cervical disc herniations and spinal cord compression, exacerbated by a collision. Kotecha noted pre-existing degeneration in Myers’s neck but attributed the acute injuries to the accident. The surgery, conducted in August 2014, involved removing four herniated discs and fusing the vertebrae, while leaving two discs untreated due to their non-compressing nature. Although successful, the surgery resulted in limitations in neck mobility and a lifting restriction of 20 to 30 pounds. Kotecha indicated that while muscle atrophy could improve with therapy, any atrophy from nerve damage would be permanent. A follow-up in February 2015 showed no need for prescription pain medication, a well-healed surgical site, and good cervical spine motion. Kotecha confirmed that the surgery was medically necessary and the associated expenses were reasonable. James Evans, an accident reconstructionist, analyzed the collision involving Myers and an 18-wheeler, utilizing witness statements, scene data, and vehicle inspections. His reconstruction, aided by photographs and computer modeling, concluded that the driver, Baggett, failed to check his surroundings before reversing, with primary fault resting on him and Sprint's spotters, who neglected their warning duties. Evans noted that Myers bore slight responsibility for the incident. Darrell Hurst, a ranch-hand expert, assessed Myers's 250-acre ranch, highlighting the extensive maintenance required, which necessitates heavy lifting and machinery operation beyond 30 pounds. He estimated that Myers would need to hire a worker six days a week at $20 per hour to manage the ranch, which was observed to be poorly maintained, indicating a need for immediate attention to the fences and pastures. Hurst admitted ignorance of the condition of Myers's ranch before the collision. Baggett, the driver of the 18-wheeler involved in the accident on January 26, 2014, testified that he relied on two Sprint spotters for guidance; one was visible, while the other was positioned behind the trailer. The visible spotter indicated when to stop after Baggett allegedly struck a gate. After stopping, Baggett remained stationary for one to two minutes before moving again based on the spotter's assurance that it was clear. He noted that the truck did not emit reversing sounds and that the spotters did not use flags or noisemakers. Baggett was only informed of hitting Myers after a call about 30 minutes post-collision. Diana M. Dooley, then Director of the Business Office for Spring Central Hospital, testified that Myers was billed $201,570.54 for his four-level fusion surgery, which she deemed reasonable. James S. Bryan, a safety professional for Sprint, stated that spotters do not require special training and noted that Myers declined medical attention immediately after the incident. Cecil Wyatt, a pipeline inspector on Myers's property at the time, observed Myers on his four-wheeler with the truck bumper against it. Dr. Jerry Bob Blacklock, a neurosurgeon, opined that Myers's surgery was not necessitated by the collision but would have been required due to pre-existing arthritic conditions. Blacklock indicated that Myers's imaging did not show herniated discs and that initial exams were inconsistent with a recent spinal cord injury. Blacklock also challenged the reasonableness of the surgical costs: he believed the $33,195 charged for surgical hardware should have been $3,000 to $5,000, the hospital's charge of $201,570.54 for the surgery should not exceed $40,000, the surgeon's fee of $68,587.09 should be between $3,000 and $16,000, and the $6,075 charge for monitoring equipment was approximately three times expected costs. Richard Baratta, Ph.D., an expert in biomedical engineering, testified that the 18-wheeler was incapable of hitting Myers at a speed exceeding three miles per hour, which would not be sufficient to cause cervical spine disc herniation unless pre-existing injuries were present. The jury determined that the negligence of Sprint, Baggett, and Myers was the proximate cause of Myers's injuries, allocating liability as follows: Sprint (64%), Baggett (35%), and Myers (1%). Myers was awarded a total of $3,940,000 in damages, broken down into specific categories including past and future medical expenses, physical pain, mental anguish, and physical impairment. The trial court issued a judgment against Sprint and Montgomery, with Montgomery fulfilling its financial obligation. Sprint's post-trial motions for judgment notwithstanding the verdict, modification of the verdict, and a new trial were denied, prompting Sprint to appeal. Sprint argues that the evidence was insufficient to support the jury’s negligence finding against it and the awarded damages for future physical impairment and pain. The standard of review for legal sufficiency allows for an upholding of the jury's findings if there is more than a scintilla of evidence to support them. Legal sufficiency challenges can be sustained if there is a complete absence of evidence on a vital fact, the law bars weight to the evidence, or if the evidence conclusively establishes the opposite of the vital fact. For factual sufficiency, the court examines the evidence neutrally and may only overturn a finding if it is against the overwhelming weight of the evidence. The factfinder has the discretion to assess witness credibility, and reviewing courts must defer to this determination. Sprint contends that the evidence is inadequate to justify the jury's determination that it was 64% responsible for Myers's injuries, arguing that there was no proof of negligent conduct by its spotters at the time of the incident. It asserts that any inference of negligence is counterbalanced by equally plausible inferences of non-negligence. To establish negligence, three elements must be proven: a legal duty, a breach of that duty, and damages caused by the breach. A general contractor can be liable for negligence due to unsafe premises arising from either an activity on the premises or a defect in the premises. Negligence and premises liability are distinct claims requiring different proofs, with negligent activity focusing on affirmative actions causing injury and premises liability on the failure to maintain safety. In this case, the court submitted a general negligence question to the jury at Myers's request, meaning only negligent activity was considered. Sprint does not dispute its duty to Myers concerning its spotters but claims there is no evidence of negligent activity. However, the evidence suggests that the spotters breached their duty by failing to properly communicate with the driver, Baggett, while he was backing up the 18-wheeler, which he could not see behind. One spotter claimed to have visibility of the area, while another was positioned behind the trailer and visible in a photograph taken by Myers after the collision. This circumstantial evidence supports the jury's finding of negligence against Sprint regarding its spotters' actions. Sprint's claim that the equal inference rule negates evidence of its negligence is rejected. Circumstantial evidence can demonstrate actual knowledge, provided it supports that conclusion either directly or through reasonable inference. The precedent set in Suarez v. City of Tex. City indicates that negligence is not contemporaneous if a utility company's last relevant action occurred over a month prior to an injury. Sprint contends that actions by its spotters were not contemporaneous with the collision, but the evidence shows that only one to two minutes elapsed between the incident and the prior actions of the spotters, making their involvement immediately relevant. Sprint’s argument that reasonable actions by the spotters negate the inference of negligence is deemed implausible when considering evidence that Baggett relied on spotters for navigation, and their positioning suggests they were responsible for the area behind the 18-wheeler at the time of the collision. Even if a reasonable inference could favor Sprint, the resolution of conflicting reasonable inferences falls to the jury, which can assess circumstantial evidence and witness credibility. Consequently, the evidence supports the jury’s negligence finding against Sprint. Regarding the second issue, Sprint argues that the $2 million award for Myers's future physical impairment is factually insufficient because the ranch-hand damages model improperly presented economic damages instead of non-economic damages. However, Sprint concedes that there is some evidence supporting future physical impairment beyond this model. The court emphasizes that when reviewing damages, all relevant evidence is considered, and the fact-finder has discretion within the range of evidence presented. Nonetheless, any damages awarded must have a rational basis supported by the evidence. Damages in this case are determined by the trial court's instructions to the jury, which included assessing compensation for Myers' past medical expenses, physical pain, mental anguish, and physical impairment. The jury was instructed to evaluate each element separately and avoid double recovery for the same loss. There is a presumption that the jury followed these instructions unless evidence suggests otherwise. The terms "physical impairment" were interpreted based on their common meanings: "physical" relating to the body, and "impair" meaning to diminish in strength or value. Texas courts have established that physical impairment damages can address injuries affecting a plaintiff's activities or enjoyment of life. Sprint did not contest the jury instructions but claimed that Myers improperly solicited economic damages for future physical impairment during closing arguments, which was not objected to at trial, resulting in a waiver of any challenge to that argument. Proper protocol requires timely objections to preserve appellate complaints regarding jury arguments. Further, lawyer statements do not substitute for judicial instructions. Evidence presented included potential future disfigurement and surgical scarring. Disfigurement encompasses any condition that detracts from a person's appearance. Testimony indicated that Myers had surgical scars and suffered from muscle atrophy in his right arm due to nerve damage, with visible differences between his arms presented to the jury. Myers demonstrated significant physical limitations, as he could not lift more than ten pounds with his right arm. Dr. Kotecha indicated that although therapy might improve atrophy, any improvement would be contingent on the absence of permanent nerve damage. Evidence suggested Myers would face future loss of earning capacity, affecting his ability to perform several jobs, particularly as a bodyguard, due to diminished strength and mobility. Myers presented claims of loss of enjoyment of life, which encompasses more than pain or lost wages and reflects his diminished quality of life. At 45, he described feeling feeble and having to drastically adjust his lifestyle. His injuries restricted his neck mobility and affected his interactions with his daughter, inhibiting activities like coaching her soccer team. Additionally, he struggled with maintaining his ranch, which was deteriorating due to his inability to manage essential tasks. Sprint contested the damages awarded for future physical impairment, arguing that Myers had resumed many daily activities without pain and had not sought further medical attention. However, the jury was entitled to weigh the testimony presented, and the court of appeals acknowledged its role as a non-fact finder, unable to assess witness credibility or replace the jury's judgment. While Sprint referenced other cases to argue the damages were excessive, the nature of future damages in personal injury cases is inherently speculative and relies on the jury's discretion informed by the specifics of each case. Comparisons to other awards are typically not helpful, as established by precedent. A $5 million award for future physical impairment was affirmed in a case involving a plaintiff with significant injuries, including six cervical-disc herniations and a compressed spinal cord. The court upheld a $500,000 award for future physical pain despite Sprint's argument that there was insufficient evidence, as the plaintiff, Myers, did not present future medical expenses nor did he complain of pain at the trial. However, the court noted that future pain can be inferred from circumstantial evidence, and the fact finder has discretion in awarding damages for subjective injuries such as pain and suffering. Evidence indicated that Myers's injuries could lead to ongoing pain, particularly given the uncertainty regarding the healing of two untreated discs and the potential need for further surgeries. Even though the plaintiff did not require prescription pain medication at the time of trial, this did not negate the jury's finding of future pain. The ruling emphasized that the risk of future complications and surgeries is sufficient to support such an award. The jury's award of damages for future pain is supported by sufficient evidence, emphasizing the discretion granted to juries in determining appropriate compensation for pain and suffering. Sprint's claim that Myers’s lack of pursuit for future medical expenses undermines the inference of potential future pain is rejected. Regarding proportionate liability, Sprint argues that the jury's finding of 64% responsibility assigned to them is factually insufficient. However, the court maintains that the jury has broad discretion in assessing negligent parties' responsibilities, and the evidence is sufficient to uphold the jury's determination. Sprint also contends that the trial court improperly admitted and excluded evidence related to the billing practices of Spring Central Hospital, which they argue is pertinent to the reasonableness of Myers’s medical expenses. The court affirms that the trial court has discretion over evidentiary rulings and will not overturn these decisions unless they were arbitrary or unreasonable. Additionally, any evidentiary errors must be shown to have materially affected the judgment to warrant reversal. The law limits recovery for medical expenses to the amounts actually paid or incurred by the claimant. In a Medicare Part B case, the Texas Supreme Court ruled that admitting evidence of the total amounts billed by healthcare providers was erroneous, as federal law prevents these providers from charging Medicare patients more than what is deemed reasonable. The case, Haygood v. De Escabedo, revealed that although providers billed $110,069.12, they adjusted the bill to $27,739.43 due to federal law constraints. The court interpreted the "actually paid and incurred" language in section 41.0105 to mean only expenses that have been or will be paid, excluding amounts that cannot be legally recovered. Consequently, it held that evidence of original charges, for which providers had no entitlement to payment, was inadmissible due to its potential to confuse jurors. In a related case involving Sprint, it was argued that the trial court erred by admitting evidence of the amount charged to Myers rather than the actual payment made. However, this case differed from Haygood because Myers's bill was assigned to a factoring company, MedFin, which allowed for the collection of the full service value without Medicare limitations. The court found no evidence of any contract that would restrict the hospital from charging Myers the full amount. Therefore, it concluded that the trial court properly admitted evidence of the full bill. Additionally, the court addressed Sprint's argument regarding the exclusion of deposition testimony about the hospital's billing practices, indicating it would not affect the outcome. Sprint contends that evidence regarding the reasonableness of Myers’s medical expenses was improperly excluded from jury consideration. Myers argues that the size of the discount is irrelevant. However, Dooley’s testimony, which was excluded, indicated that Spring Central Hospital charged over $200,000 for Myers’s surgery despite having negotiated a payment of $80,711 with MedFin. This evidence is pertinent to assessing the reasonableness of the medical expenses, and the trial court erred by excluding it. Dooley's background in the hospital's billing department suggests her testimony would be considered more credible than that of Dr. Blacklock, a defense-paid expert who opined that the expenses were unreasonable. The court noted that expert witnesses can be seen as biased due to their compensation, making Dooley's testimony more significant. The trial court's exclusion of her testimony was deemed harmful to the case. The court rejected Myers's argument that Dooley’s testimony was cumulative of Dr. Blacklock’s or that it could confuse the jury, emphasizing that her unique insights into billing practices were relevant and not misleading. The court partially sustained Sprint's appeal, reversed the trial court’s judgment concerning past medical expenses, and remanded the case for a new trial on that specific issue, while affirming the rest of the judgment.