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| Texas Damages |
University of Houston Law Foundation
Advanced Personal Injury and Insurance Law
Andrew B. Sommerman
Sommerman, Moore & Quesada, L.L.P.
TABLE OF CONTENTS
I. INTRODUCTION viii
VIII. INJURY xv
IX. ECONOMIC DAMAGES xvi
A. MEDICAL EXPENSES xvi
1. Proving Medical Expenses xvi
a. Admitting Medical Bills by Affidavit xvi
Hilland v. Arnold, 856 S.W.2d 240 (Tex. App. -- Texarkana 1993, no writ).
b. Admitting Medical Bills by Deposition on Written Questions xvii
c. Admitting Medical Bills by Expert Testimony xviii
d. Admitting Medical Bills by Request for Admission xviii
2. Future Medical Expenses xviii
3. Medical Care for Minors xix
B. LOSS OF EARNINGS AND EARNINGS CAPACITY xix
1. Proving Loss of Earning Capacity xx
Border Apparel-East, Inc. v. Guardian, 868 S.W.2d 894 (El Paso 1993, no writ) xx
Wharf Cat, Inc. v. Cole, 567 S.W.2d 228 (Tex. Civ. App. - Corpus Christi 1978, writ ref'd. n.r.e.) the Corpus Christi Court of Appeals held that a sixty-five year old retiree could not recover for future lost earnings when he was not looking for work when injured but testified he xxi
C. LOSS OF HOUSEHOLD SERVICES xxii
1. Proving Loss of Household Services xxii
Fort Worth v. Weisler, 212 S.W. 280 (Tex. Civ. App. - Fort Worth 1919, no writ). For an injured man, the value as a husband or father would serve as a basis for computation.
X. DAMAGES RESULTING FROM PHYSICAL INJURY xxii
A. PHYSICAL PAIN AND SUFFERING xxii
1. Proving Physical Pain & Suffering xxiii
2. Closed Head Injuries xxiv
B. PHYSICAL IMPAIRMENT xxv
1. Proving Physical Impairment xxv
C. DISFIGUREMENT xxv
1. Proving Disfigurement xxvi
Southwestern Bell Telephone Co. v. Ferris, supra.
D. MENTAL ANGUISH xxvi
Phar-Mor, Inc. v. Chavira, 853 S.W.2d 710 (Tex. App. -- Houston [1st Dist.] 1993, no writ).
Recently, the San Antonio court upheld an award of damages for mental anguish on testimony that the plaintiff remained scarred after the accident made the basis of the suit, he lacked the ability to turn his neck, was xxix
2. Submitting Mental Anguish to the Jury xxx
3. Mental Anguish in Non-Death, Non-Bystander Negligence Cases xxx
E. LOSS OF CONSORTIUM xxxi
1. Spousal Consortium xxxi
Id.
2. Parental Consortium xxxi
Id. at 468.
3. Filial Consortium xxxi
4. Consortium Damages for a Sibling xxxii
Reagan v. Vaughn, supra, in addressing the possible xxxii
Seale v. Winn Exploration Co., 732 S.W.2d 667 (Tex. App. - Corpus Christi 1987, writ denied). The court noted that expert testimony was not required since the value of the loss of love, affection and companionship could be determined by a jury. The hourly rate of a psychiatrist is not relevant, and the court noted that the jury was well qualified to ascertain the amount of damages on this issue.
F. OTHER ELEMENTS OF DAMAGE xxxii
1. Loss of Part of the Body xxxii
2. Loss of Mental/Intellectual Function xxxii
3. Damages for the Loss of Enjoyment xxxii
Missouri Pacific Railroad Co. v. Handley, 341 S.W.2d 203 (Tex. Civ. App. -- San Antonio 1960, no writ).
XI. BYSTANDER DAMAGES xxxiii
XII. DAMAGES FOR WRONGFUL DEATH xxxv
A. Elements of Wrongful Death Damages xxxv
1. Pecuniary Loss xxxv
2. Loss of Support or Services of a Parent xxxvi
3. Loss of Support or Services of a Child xxxvi
4. Loss of Companionship and Society xxxvii
a. Use of Expert Testimony xxxviii
5. Mental Anguish xxxviii
a. Proving Mental Anguish Damages in Wrongful Death xxxix
b. Mental Anguish for Wrongful Death of a Fetus xli
6. Loss of Inheritance xli
B. Death of Statutory Beneficiary xli
C. Effect of Remarriage xlii
D. Joinder of Parties xlii
E. Relationship Between Pecuniary Losses and Human Losses xlii
XIII. SURVIVAL DAMAGES xlii
A. PRENATAL INJURIES xliii
XIV. WRONGFUL LIFE CASES xliii
LaPoint v. Shirley, 409 F.Supp. 118 (W.D. Tex. 1976).
XV. PUNITIVE/EXEMPLARY DAMAGES xliv
A. AUTHORITY FOR THE AWARD OF PUNITIVE DAMAGES xliv
B. THE ALAMO FACTORS xlv
C. THE NECESSITY OF ACTUAL DAMAGES xlvii
D. GROSS NEGLIGENCE xlvii
E. BIFURCATION xlviii
Moriel, additionally held that, upon timely motion, a trial court must bifurcate all subsequent trials in which a claim for punitive damages is made. The purpose of bifurcation was to xlviii
Moriel, the court requires a similar type of review when courts of appeal are affirming a punitive damages award over an objection that it is based on insufficient evidence or is against the great weight and preponderance of the evidence.
G. RETROACTIVE APPLICATION xlviii
Moriel retroactively to pending cases in which a party has preserved a complaint that the court of appeals failed to xlviii
Anderson v. Trent, 685 S.W.2d 712 (Tex. App. -- Dallas 1984, writ ref'd n.r.e.).
XVI. OTHER MISCELLANEOUS DAMAGES xlix
A. OCCUPATIONAL DISEASES & TIME OF INJURY xlix
1. Mechanical Injury xlix
2. Chemical Injury xlix
3. Immunologic Injury xlix
B. ENHANCED RISK OF CONTRACTING DISEASE AND EMOTIONAL DISTRESS DAMAGES l
C. MEDICAL SURVEILLANCE DAMAGES li
Herber v. Johns-Manville Corp., 785 F.2d 79 (3rd Cir. 1986). The court went further and allowed recovery for emotional distress occasioned by plaintiff's fear of developing cancer in the future, reasoning that the infiltration of plaintiff's lungs by asbestos dust and the pleural thickening thereby, satisfied the impact and injury requirements of New Jersey law.
D. INTEREST li
1. Prejudgment Interest li
Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985), the Texas Supreme Court set forth guidelines for awrading prejudgment interest. These guidelines control actions filed prior to September 2, 1987.
(1) The primary objective of awarding damages in civil action is to compensate the injured plaintiff, rather than to punish defendant.
(2) A prevailing plaintiff may recover prejudgment interest, compounded daily, based on a 365 day year, on damages that have accrued by the time of judgment.
(3) Prejudgment interest in a personal injury case is to accrue at the prevailing rate that exists on the date judgment is rendered according to the provisions of article 5069-1.05 § 2 of the Texas Revised Civil Statutes.
(4) In wrongful death and non-death personal injury cases, prejudgment interest begins to accrue on both pecuniary and non-pecuniary damages from a date 6 months after occurrence of incident giving rise to cause of action.
(5) In survival actions, decedent's estate is entitled to prejudgment interest eithr from date of death or six months after injury-causing incident occurred, whichever yields the larger interest award.
(6) Prejudgment interest is not awarded on future and punitive damages.
Article 5069 of the Texas Revised Civil Statutes controls all cases filed on or after September 2, 1987. Tex. Rev. Ci. Stat. art. 5069-1.05 (Vernon Supp. 1992). The following are selected noteworthy considerations.
(1) All judgments based on a contract that provides for a specific rate of interest earn interest at a rate equal to the lessor of:
(a) the rate specified in the contract; or
(b) 18 percent
(2) Prejudgment interest in wrongful death, personal injury, and property damage cases is triggered by plaintiff's written notice to the defendant or the filing of the lawsuit.
(3) Interest commences on the 180th day (6 months) after the li
3. Serves as Additional Damages li
4. Pleading lii
5. Tolling lii
6. Future Damages lii
7. Exemplary Damages lii
E. POST-JUDGMENT INTEREST liii
1. Postjudgment Interest is Mandatory liii
F. GOVERNMENTAL CAPS liii
XVII. MISCELLANEOUS CONSIDERATIONS liii
A. JURY ARGUMENT liii
1. State Court Rule liii
2. Federal Court Rule liii
B. PLEADING OF ADDAMNUM liv
C. SEPARATE/COMMUNITY PROPERTY STATUS OF DAMAGES liv
D. ADMISSIBILITY OF LIFE EXPECTANCY TABLES TO PROVE DAMAGES liv
1. Poor Health liv
2. Ultrahazardous Occupation liv
Bell Aerospace v. Anderson, 478 S.W.2d 191 (Tex. Civ. App. - El Paso 1972, writ ref'd n.r.e.).
3. Plaintiff Not U.S. Citizen liv
E. ADMISSIBILITY OF DEFENDANT'S NET WORTH liv
PART I
I. INTRODUCTION
This paper offers a preliminary discussion of the substantive law governing Texas personal injury damages. This includes but is not limited to a consideration of easily quantifiable damages, such as medical expenses, and damages that are more difficult to calculate, such as pain and suffering and loss of consortium. Additionally, each section will contain a discussion of proof and evidentiary considerations related to damages.
II. INSURANCE DAMAGES
Insurance litigation has had its ups and downs over the past years. From the bad faith explosion that began with Arnold vs. National County Mutual Insurance Company, 725 S.W.2d 165 (Tex. 1987), and Aranda vs. Insurance Company of North America, 748 S.W.2d 210, 213 (Tex. 1988) to the retrenchment that began with Lyons vs. Millers Casualty Insurance Co., 866 S.W.2d 597 (Tex. 1993), and Allstate Insurance Co. vs. Watson, 876 S.W.2d 145 (Tex. 1994), litigation against insurance companies has gone from a lucrative gold mine to an area where even the recovery of contract damages can be uncertain. The old days of the sweetheart deal followed by a bad faith suit that the insurance company is predestined to lose are gone. State Farm Fire & Casualty Co. vs. Gandy, 925 S.W.2d 696, 714 (Tex. 1996).
This paper will discuss the current state of the law regarding the damages recoverable in insurance litigation. A detailed discussion of this area of the law is not possible in a presentation of this sort, so the reader should use this paper only as a starting point for detailed research. Changes in this area of the law are ongoing, so some aspects of this paper will be superseded by new developments. No warranties, express or implied, are made regarding the ongoing accuracy or completeness of any statements or analyses made in this paper, and the author disclaims any responsibility to provide supplemental documentation of further changes in the law after the presentation of this paper.
III. BREACH OF CONTRACT
A. Damages Damages for breach of the insurance contract are always the basic type of damages available. "An insurer's nonpayment of a covered claim ordinarily is a breach of contract, and does not alone entitle a plaintiff to mental anguish or exemplary damages." Transportation Insurance Co. vs. Moriel, 879 S.W.2d 10, 17 (Tex. 1994) (citations omitted). See also, Stewart Title Guaranty Co. vs. Aiello, 941 S.W.2d 68, 72 (Tex. 1997), and Latham vs. Castillo, 972 S.W.2d 66, 71 (Tex. 1998).
In a straight breach of contract case, the plaintiff must show that the claim was a covered claim, that there was a breach of the insurance contract, and the amount of damages from the breach. Stroman vs. Fidelity and Casualty of New York, 792 S.W.2d 257, 261 (Tex. App.--Austin 1990, writ denied). The damages are normally measured by the terms of the policy itself. Standard Fire Insurance Co. vs. Fraiman, 588 S.W.2d 681 (Tex. Civ. App.--Houston [14th Dist.] 1979, writ ref 'd n.r.e.). In a first-party case, the damages are at least the amount of policy benefits wrongfully withheld. Vail vs. Texas Farm Bureau Mutual Insurance Co., 754 S.W.2d 129, 136 (Tex,. 1988).
In general breach of contract cases, incidental and consequential damages beyond the contract can be recovered if they were the natural, probable, and foreseeable consequence of the defendant's conduct. Mead vs, Johnson Group. Inc., 615 S.W.2d 685, 687 (Tex. 1981). This concept of contract law does not seem to be applied by the cases discussing insurance contracts unless the insurance company also commits a tort. Standard Fire Insurance Co. vs. Fraiman, 588 S.W.2d 681, 683 (Tex. Civ. App.--Houston [14th Dist. 1979, writ ref'd n.r.e.).
An example of the calculation involved for breach of contract damages is Republic Banks Life Insurance vs. Jaeger, 551 S.W.2d 30 (Tex. 1976). Jaeger was a suit from the pre-bad faith era for recovery on a disability insurance policy. The court treated it as a standard suit on a contract for past and future damages. "The measure of damages in an action for breach of contract by repudiation is the total of all accrued payments plus interest, plus the present value of all unaccrued payments that the plaintiff would have received if the contract had been performed." Id. at 31. See also, Group Life & Health Insurance Co. vs, Turner, 620 S.W.2d 670, 674 (Tex. Civ. App.--Dallas 1981, no writ); American Insurance Co. vs. Fox, 184 S.W.2d 937, 944 (Tex. Civ. App.--Fort Worth 1944, writ ref'd w.o.m.).
B. Attorney's fees Two statutes potentially apply here: Tex. Ins. Code art. 21.55 and Tex. Civ. Prac. & Rem. Code ch. 38. Tex. Ins. Code art. 21.55 sets deadlines for most types of insurance companies to begin acting on claims, accept or reject claims, and pay claims. The covered insurance companies are listed in Tex. Ins. Code art. 21.55(1)(4). The excluded insurance companies and other, targeted exclusions are listed in Tex. Ins. Code art. 21.55(5).
If Tex. Ins. Code art. 21.55 does not apply, look at Tex. Civ. Prac. & Rem. Code ch. 38. This general purpose attorney's fee statute applies to insurance contracts. The exceptions applicable here are in Tex. Civ. Prac. & Rem. Code §38.006(1) and (2). These subsections still refer to former Tex. Ins. Code arts. 3.62 and 3.62-1, which were repealed and replaced by Tex. Ins. Code art. 21.55. Most
situations will be covered by Tex. Ins. Code art. 21.55, but the interplay between these two statutes will mean that any insurance situations that slip through Tex. Ins. Code art. 21.55 will be covered by Tex. Civ. Prac. & Rem. Code ch. 38. Grapevine Excavation, Inc, vs. Maryland Lloyd, 43 Tex. Sup. Ct. J. 1086 (July 6, 2000) "In a policyholder's successful suit for breach of contract against an insurer that is subject to the provisions listed in section 38.006, the insurer is liable for reasonable attorney's fees incurred in pursuing the breach-of-contract action under section 38.001 unless the insurer is liable for attorney's fees under another statutory scheme." Id. at 1090.
Federal courts, particularly the Fifth Circuit, are very favorable to insurance companies, so many,if not most, of these cases end up in federal court. In Bituminous Casualty Corn. vs. Vacuum Tanks, Inc., 975 F.2d 1130, 1133 (5th Cir. 1992), the Fifth Circuit held that Tex. Civ. Prac. & Rem. Code §38.006(1) and (2) provide absolute exemptions to the listed types of insurance companies. In reaching this conclusion, the Fifth Circuit chose not follow the cases from the Texas Courts of Appeals holding otherwise. This has now been rectified by Grapevine, so the Bituminous argument should no longer be made by insurance companies.
Under Tex. Ins. Code art. 21.55, good faith doubt about liability on a claim does not relieve an insurance company from liability for attorney's fees if it incorrectly fails to pay a claim. Marineau vs. General American Life Insurance Co., 898 S.W.2d 397 (Tex. App.--Fort Worth 1995, writ denied); Cater vs. United States Automobile Association, 27 S.W.3d 81, 84 (Tex. App.-San Antonio 2000, n.p.h.) ("Although this outcome is harsh, it is not absurd.)
In an uninsured motorist situation, the insured does not need to make a demand for the exact amount due in order to be entitled to attorney's fees if the insurance company fails to pay the benefits due in a timely manner. Northwestern National County Mutual Insurance Co. vs. Rodriquez, 18 S.W.3d 718, 720-721 (San Antonio 2000, pet. denied). "To require the amount owed under the contract to be proven to a specific amount before its insured could recover attorney's fees would virtually eliminate the recovery of attorney's feed in any UIM contract dispute, a result contrary to established law." ld. at 721.
C. Interest If a covered insurance company fails to comply with the deadlines under Tex. Ins. Code art. 21.55, it must also pay an additional 18% per annum on the claim. See also, State Farm Fire & Casualty Co. vs. Gandy, 925 S.W.2d 696, 714 (Tex. 1996) (possibility of penalty being
assessed after unsuccessful Declaratory Judgment suit by the insurer).
In an uninsured/underinsured motorist situation, prejudgment interest does not begin running until the liability of the uninsured/underinsured motorist is determined. Henson vs. Southern Farm
Bureau Casualty Insurance Co., 17 S.W. 3d 652 (Tex. 2000). In Henson, the insurers timely tendered policy limits, so they did not owe prejudgment interest.
IV. BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
"A bad faith case can potentially result in three types of damages: (1) benefit of the bargain damages for an accompanying breach of contract claim, (2) compensatory damages for the tort of bad faith, and (3) punitive damages for intentional, malicious, fraudulent, or grossly negligent conduct." Transportation Insurance Co. vs. Moriel, 879 S.W.2d 10, 17 (Tex. 1994). "A breach of the duty of good faith and fair dealing will give rise to a cause of action in tort that is separate from any cause of action for breach of the underlying insurance contract." Viles vs. Security National Insurance Co., 788 S.W.2d 566, 567 (Tex. 1990) . The importance of this distinction was pointed out in Viles where the court noted that the failure to comply with a contractual condition might bar a breach of contract claim but might not bar a claim for a breach of the duty of good faith and fair
dealing.
A. Mental anguish As an element of actual damages beyond contract damages, a breach of the duty of good faith and fair dealing opens the door to the potential recovery of mental anguish damages. Arnold vs, National County Mutual Insurance Company, 725 S.W.2d 165, 168 (Tex. 1987). However, the standard for the recovery of mental anguish damages is strict. Parkway Co. vs. Woodruff, 901 S.W.2d 434, 442-445 (Tex. 1995). Mental anguish is a high degree of mental pain that is more than mere worry, anxiety, vexation, embarrassment, or anger. If the plaintiff introduces
direct evidence of the nature, duration, and severity of his mental anguish, he will be able to keep his recovery. Without direct evidence, a mental anguish recovery is in danger. Id. at 444. The Woodruffs only offered brief evidence of their emotions at having their house flooded, and this was neither direct nor circumstantial evidence of mental anguish. There is nothing extraordinary about flooding, so evidence of negligence and the resulting flooding was not enough to support a mental anguish award. Id. at 445.
The Parkway standard has been applied in insurance bad faith cases. Saenz vs. Fidelity & Guaranty Insurance Underwriters, 925 S.W.2d 607 (Tex. 1996), was a suit over a worker's compensation settlement in which the worker sued because she claimed she had been misled in the settlement process about the availability of lifetime medical benefits for her injury. During the trial, she testified that she was worried a lot about getting lifetime benefits. This was the only evidence of mental anguish. The court held that this was not legally sufficient evidence of compensable mental anguish. Id. at 614. Although the court reversed and rendered on the mental anguish award, it went on to address evidence of the amount of a mental anguish award. If sufficient evidence is presented to justify a mental anguish award, the jury is not given free reign to award any number. Just as with any other jury finding, there must be evidence that the amount awarded is fair and reasonable compensation for the mental anguish suffered. Furthermore, the appellate courts must conduct a meaningful evidentiary review of any award. Id. In a recent pronouncement on mental anguish damages in insurance bad faith cases, the supreme court reminded us that "mental anguish damages will be limited to those cases in which the denial or delay in payment of a claim has seriously disrupted the insured's life." Universe Life Insurance Co. vs. Giles, 950 S.W.2d 48, 54 (Tex. 1997). However, the Texas Supreme Court has given an example of mental anguish evidence that is enough to be "some evidence." Latham, 972 S.W.2d at 70. Although Latham was a 5-4 decision, the dissenters agreed that the evidence presented satisfied the Parkway standard. Latham, 972 S.W.2d at 74.
Other cases allowing mental anguish damages are Texas Farmers Insurance Co. vs, Cameron, 24 S.W.3d 386, 394-395 (Tex. App.-Dallas 2000, pet. denied) (contrasting examples of insufficient and sufficient evidence of mental anguish) and Colonial County Mutual Insurance Co. vs. Valdez, 30 S.W.2d 514, 526 (Tex. App.--Corpus Christi 2000, n.p.h.).
B. Other actual damages The recovery of workers' compensation benefits as bad faith damages was addressed and eliminated in Saenz vs. Fidelity & Guaranty Insurance Underwriters,
925 S.W.2d 607 (Tex. 1996). Whether the theory is fraud, bad faith, or otherwise, courts do not have jurisdiction to award workers' compensation damages. That power rests solely with the Workers'
Compensation Commission. Id. at 612.
The Saenz court spoke with language that allows a broad class of potential actual damages to be recoverable in a bad faith case: "Saenz concedes that, this [exclusive jurisdiction lies with the Commission] is the law but argues that it does not preclude her recovery of damages for fraud and bad faith. Saenz is right, of course, as long as the damages are not for lost compensation benefits." Id. However, the court went on to reiterate the point it has made in recent years: any jury finding will be thrown out if the evidence does not support it. Although the jury awarded medical benefits to Saenz under an instruction that excluded any workers' compensation benefits, the court found no evidence supporting an award of anything other than workers' compensation benefits, so the entire award was reversed. Id. at 613. It appears that if the tort of bad faith is proven, any damages proximately caused by the bad faith can be recovered if they are supported by sufficient evidence.
Attorney's fees in an underlying case can be recovered as damages. Standard Fire Insurance Co. vs. Stephenson, 963 S.W.2d 81, 90-91 (Tex. App.--Beaumont 1997, no writ) (bad faith denial of worker's compensation claim - attorney's fees in pursuing underlying worker's compensation claim recoverable as actual damages); Nationwide Mutual Insurance Co. vs. Holmes, 842 S.W.2d 335 (Tex. App.--San Antonio 1992, writ denied) (insured hired personal attorney when notified of possible excess claim - these attorney's fees recoverable under the DTPA but not under Stowers when there was, in fact, no excess recovery); Valdez, 30 S.W.2d at 526 (attorney's fees in defending declaratory judgment case brought by insurance company after it has misrepresented that there was coverage).
Loss of credit and the loss of a business have also been allowed as damages flowing from the bad faith denial of a claim. Assicurazioni Generali, S.p.A. vs. Milsap, 760 S.W.2d 314, 318 (Tex. App.--Texarkana 1988, writ denied). Past medical expenses and loss of credit have also been awarded, Paramount National Life Insurance Co. vs, Williams, 772 S.W.2d 255, 266 (Tex. App.--Houston [14th Dist.] 1989, writ denied), although in this case it was unclear if they were awarded as contract damages or bad faith damages.
In Valdez, the insurance company was held to have misrepresented the existence of insurance coverage on a car after the insured sold the car to his son. After the car was stolen, the insurance company denied coverage. The value of the car was allowed as damages for loss of benefit of the
bargain. Id., 30 S.W.2d at 527.
C. Exemplary damages As in all exemplary damages cases, "without evidence of actual damages, punitive damages cannot be recovered." Saenz vs. Fidelity & Guaranty Insurance Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). This rule has renewed importance in insurance cases because the supreme court has made it clear that mental anguish or other non-contract damages in insurance case must be supported by sufficient evidence, and this frequently results in a reversal of all actual damages awards.
In a recent pronouncement on exemplary damages in insurance bad faith cases, the supreme court said it was an overstatement to say that it is virtually impossible to recover punitive damages in bad faith cases in Texas, but it reminded us that "punitive damages in Texas bad faith cases will be limited to highly unusual and particularly egregious situations, as they should be." Universe Life Insurance Co. vs. Giles, 950 S.W.2d 48, 54 n3 (Tex. 1997).
V. THIRD-PARTY CASES
The above cases all deal with damages available in first-party cases. Third-party cases can also give rise to claims against the insurance company.
A. Breach of contract damages In a third-party case, the breach of contract damages will at a minimum be the damages paid to the claimant (up to the policy limits) and defense costs for the
underlying case. Maryland Insurance Co. vs. Head Industrial Coatings & Services, Inc., 938 S.W.2d 27, 29 (Tex. 1996) . Policy limits is the cap on the damage recovery in the absence of some tortious conduct (for example, negligence or bad faith) by the insurer, United States Automobile Association vs. Pennington, 810 S.W.2d 777, 784 (Tex. App.--San Antonio 1991, writ denied), but if the insurer engages in tortious conduct, this is not necessarily the cap. State Farm Mutual Automobile Insurance Co. vs. Traver, 980 S.W.2d 625, 629 (Tex. 1998).
B. Tort damages Tort claims against an insurance company in third-party cases are based on the rule in G.A. Stowers Furniture Co. vs. American Indemnity Co., 15 S.W.2d 544 (Tex. Comm. App. 1929, holding adopted), and further refined in American Physicians Insurance Exchange vs. Garcia, 876 S.W. 2d 842 (Tex. 1994). The tort damages available in a Stowers case are the amount of the excess judgment. In Allstate Insurance Co. vs. Kelly, 680 S.W.2d 595, 606 (Tex. App.--Tyler 1984, writ ref'd n.r.e.), the court held that this was the measure of damages as a matter of law, and no damage question was necessary. In Stroman vs. Fidelity & Casualty of New York, 792 S.W.2d 257, 260 (Tex. App.--Austin 1990, writ denied), the same measure of damages was stated. This rule was explained in State Farm Lloyds, Inc. vs. Williams, 960 S.W.2d 781 (Tex. App.--Dallas 1997, writ dismissed). In Williams, the underlying judgment against the insured was qualified in that it was only recoverable against her community property on the day of the tort. The court held that in a Kelly situation, no damage question is required because the amount of damages is the simple mathematical difference between the policy limits and the amount of the underlying judgment, but when the judgment is qualified as to the assets subject to the judgment, a fact finding is required as to the value of these assets. Williams, 960 S.W.2d at 789. This sounds as if the court is saying that in making the Stowers damage calculation, the amount of the excess judgment should be reduced to the extent that there are no assets to satisfy it. Taking this reasoning to its logical extreme would open up all of the insured's financial life to inquiry in order to determine the "real"
collectable amount of the judgment. This does not seem to be what the Stowers court had in mind.
The process for evaluating damages in a Stowers case was also changed by State Farm Fire & Casualty Co. vs. Gandy, 925 S.W.2d 696, 714 (Tex. 1996), which makes a judgment obtained through a sweetheart deal with the opposing party valueless for Stowers purposes.
In Rocor International, Inc, vs. National Union Fire Insurance Co., 995 S.W.2d 804 (Tex. App.--San Antonio 1999, writ granted), the insured had a $1,000,000 deductible, a $1,000,000 primary policy, and an $8,000,000 excess policy. The insured had no defense costs coverage so it had to pay its own lawyer. After the case settled, the insured sued its excess insurer for the attorney's fees it unnecessarily incurred while the insurer delayed settling the case. The Court of Appeals allowed this recovery as damages under the Insurance Code and under a Stowers theory.
The author was unable to find any Stowers cases discussing the recovery of other damages, such as mental anguish or the loss of credit because of an unpaid, excess judgment. Because Stowers is a tort doctrine, however, any damages proximately caused by the insurance company's wrongful
conduct should be recoverable if they are supported by evidence. When the Texas Supreme Court issues its opinion in Rocor, we will see if this recovery holds up, and we may learn more about the types of damages recoverable in Stowers cases.
A. Stowers claim is not actionable under Tex. Ins. Code art. 21.21. Garcia, 876 S.W.2d at 847 n10. Likewise, breach of the duty of good faith and fair dealing is not available in third-party cases. Held, 938 S.W.2d at 28.
VI. TEXAS INSURANCE CODE ARTICLE 21.21 AND THE DECEPTIVE TRADE PRACTICES ACT
A. Damages recoverable under Tex, Ins. Code art. 21.21 and the DTPA Neither Tex. Ins. Code art. 21.21 nor the DTPA define a particular type of damages that is recoverable, so the damages recoverable under these statutes are common law damages. Brown vs. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex. 1980) (DTPA); Kish vs. Van Note, 692 S.W.2d 463, 466 (Tex. 1985)(DTPA); Frank B. Hall & Co. vs- Beach,. Inc., 733 S.W.2d 251, 265 (Tex. App.--Corpus Christi 1987, writ ref 'd n. r. e.)(Insurance Code). These damages are discussed above in sections II and III dealing with breach of contract and breach of the duty of good faith and fair dealing.
B. Differences between Tex. Ins. Code art. 21.21 and DTPA damage provisions At first glance, Tex. Ins. Code art. 21.21(16) and DTPA §17.50 appear very similar. Each refers to the other.
Tex. Ins. Code art. 21.21(16)(a) makes actionable, among other things, "any practice specifically enumerated in a subdivision of Section 17.46(b), Business & Commerce Code [the DTPA laundry list], as an unlawful deceptive trade practice." DTPA §17.50(a)(4) makes actionable, among other things, "the use or employment by any person of an act or practice in violation of Article 21.21, Insurance Code." Although there is similarity and cross referencing between the two statutes, there are some things covered by one that are not covered by the other.
1. Damages available under Tex. Ins. Code art 21.21 but not the DTPA
Any cause of action available under art. 21.21 may also be brought under the DTPA. However, consumer status as defined by the DTPA is not required in a crossover cause of action if the plaintiff is a "person" under art. 21.21. Crown Life Insurance Co. vs. Casteel, 22 S.W. 3d 378 (Tex. 2000). An art. 21.21 "person" may bring a DTPA laundry list cause of action even if he is not a DTPA consumer unless the specific laundry list subsection "either (1) specifically involves a consumer transaction or (2) involves the misrepresentation of 'goods or services' acquired by the plaintiff." Id. at 386. In Casteel, laundry list subsections 5, 7, 9, and 23 were ruled out, but subsection 12 was allowed because it did not require consumer status. Id. at 386-387.
The DTPA places a heightened threshold of culpability (knowing conduct) by the defendant for the claimant to be able to recover mental anguish damages. DTPA §17.50 (b) (1). This 1995 amendment was not made in art. 21.21., but knowing conduct is required by the case law interpreting Tex. Ins. Code art. 21.21. State Farm Life Insurance Co. vs. Beaston, 907 S.W.2d 430, 436 (Tex. 1995) (bringing the case law into conformity with the cases interpreting the DTPA).
The DTPA also places a heightened threshold of culpability (intentional conduct) by the defendant for the claimant to be able to recover the maximum amount of additional damages. DTPA §17.50(b)(1). This 1995 amendment was not made in Tex. Ins. Code art. 21.21.
The DTPA now distinguishes between economic damages and mental anguish damages, but when the DTPA is incorporated into another statue, such as Tex. Ins. Code art. 21.21(16), this breakdown disappears, and the damages recoverable revert to actual damages. DTPA §17.50(h).
2. Damages available under he DTPA but not Tex. Ins. Code art 21.21
Most (but not all) causes of action that may be brought under the DTPA may also be brought under Tex. Ins. Code art. 21.21. The notable exception applicable in an insurance case would be a claim for an unconscionable action or course of action under DTPA §17.50 (a) (3) , which is not incorporated into Tex. Ins. Code art. 21.21.
The DTPA has four different types of remedies available: damages, injunction, restoration of money or property, and "any other relief." Tex. Ins. Code art. 21.21 has three of these four: damages, injunction, and "any other relief" but not restoration of money or property.
Under the DTPA, its four remedies can be combined. The three remedies under Tex. Ins. Code art. 21.21 are listed in the disjunctive.
C. 1995 legislative changes in Tex. Ins. Code art. 21.21 and DTPA damage provisions As part of the tort reform effort in the 1995 legislature, Tex. Ins. Code art. 21.21 and the DTPA were
extensively revised. Many of the cases referred to in this paper and in this seminar may have turned out differently under the current version of these statutes. Before relying on any pre-tort reform cases, the practitioner should make sure that he understands the differences between the law that governed the case being cited and the current law. The 1995 revisions to Tex. Ins. Code art. 21.21 and the DTPA are contained in Act of June 8, 1995, 74th Leg., ch 414. A blackline of the changes made by this act is available, courtesy of Texas LegislatureOnline,at http://www.capitol.state.tx.us/cgi-bin/tlo/textframe.cmd?LEG=74&S ESS=R&CHAMBER=H&BILLTYPE=B&BILLSUFFIX=00668&VERSION=5&TYPE=B. A narrative of the more significant changes follows:
1. Tex. Ins. Code art 21.21
Tex. Ins. Code art. 21.21(16)(a) makes violations of Tex. Ins. Code art. 21.21(4) actionable. The legislature added Tex. Ins. Code art. 21.21(4)(10), which lists a number of unfair settlement practices as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance. They are now actionable under Tex. Ins. Code art. 21.21(16)(a). Universe Life Insurance Co. v. Giles, 950 S.W.2d 48, 69 (Tex. 1997). Previously, unfair claims settlement practices were governed solely by Tex. Ins. Code art. 21.21-2 and its related regulations and were held not to be actionable through Tex. Ins. Code art. 21.21(16) in Allstate Insurance Co. vs. Watson, 876 S.W.2d 145, 148 (Tex. 1994).
The legislature also added Tex. Ins. Code art. 21.21(4)(11), which lists broad categories of misrepresentations, failures to disclose, and misleading statements as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance. They are now actionable under Tex. Ins. Code art. 21.21 (16) (a).
Some cases had suggested that double recoveries were allowed if conduct violated both Tex. Ins. Code art. 21.21 and the DTPA. This was expressly disallowed in Tex. Ins. Code art. 21.21(11A).
The violation of rules or regulations issued under Tex. Ins. Code art. 21.21 was removed as a basis for a cause of action under Tex. Ins. Code art. 21.21(16)(a).
Unlisted false, misleading, or deceptive acts or practices under DTPA §17.46(a) were at one time actionable under Tex. Ins. Code art. 21.21(16)(a). This was removed, and now only false, misleading, or deceptive acts or practices defined by DTPA §17.46(b) are actionable through Tex. Ins. Code art. 21.21(16)(a).
Reliance is now expressly required for recovery for a violation of DTPA §17.46 (b) through Tex. Ins. Code art. 21.21 (16) (a) .
Automatic trebling of damages for a knowing violation was removed. Now the amount of damages is discretionary with a treble damages cap. Tex. Ins. Code art. 21.21(16)(b)(1).
The 30 day notice letter was changed to a 60 day notice letter. This change was made earlier in the DTPA but was missed by the legislature. The legislature corrected this oversight and made the two statutes comparable.
2. The DTPA
The ability to waive the DTPA was completely rewritten and broadened. DTPA §17.42.
The "no double recovery" provision in DTPA §17.43 was broadened to apply to all damages, not just actual damages.
Gross disparity was removed as one of the alternative definitions of "unconscionable action or course of action" in DTPA §17.45(5). Now the only definition of unconscionable action or course of action is "tak[ing] advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree."
Intent is now an element of the DTPA, and it is defined in DTPA §17.45 (13) .
The following are now exempt from the
- Rendering professional service, the essence of which is providing advice, judgment, opinion, or similar professional skill with the following exceptions:
- Express misrepresentation of a material fact, an unconscionable action or course of action, or a breach of warranty if the misrepresentation, action, or breach cannot be characterized as advice, judgment, or opinion.
- A failure to disclose under DTPA §17.46 (b) (23). DTPA §17.49 (c), (d).
- A written contract with all of the following characteristics:
- The contract relates to a transaction, project, or set of transactions related to the same project with more than $100,000 total consideration.
- The consumer was represented by legal counsel not directly or indirectly identified, suggested, or selected by the defendant or his agent.
- The contract does not involve the consumer's residence. DTPA §17.49(f).
- A transaction, project, or set of transactions related to the same project with more than $500,000 total consideration unless it involves the consumer's residence. DTPA §17.49(g).
Reliance is now expressly required for recovery for a violation of DTPA §17.46(b).
The violation of rules or regulations issued under Tex. Ins. Code art. 21.21 was removed as a basis for a cause of action under the DTPA.
The type and amount of damages recoverable under DTPA §17.50(b)(1) and the culpable mental states required were completely rewritten.
VII. MISCELLANEOUS STATUTORY DAMAGE PROVISIONS The business of insurance is heavily regulated, and the Texas Insurance Code contains many provisions relating to damages.
A. Tex. Ins. Code art. 10.13 If a fraternal benefit society does not pay a loss for which it is liable within 60 days after a demand, it must pay an additional 12% of the loss plus reasonable attorney's fees.
B. Tex. Ins. Code art. 21.21-8(3) A person that is the victim of unfair discrimination in insurance under Tex. Ins. Code art. 21.21-8(2) may recover economic damages, attorney’s fees, expert witness fees, and a civil penalty of up to $25,000 per claimant for knowing conduct.
C. Tex. Ins. Code art. 21.48A(4)(b) Tex. Ins. Code art. 21.48A(2) forbids certain insurance-related practices by lenders that receive security interests in real or personal property. A violation allows the borrower to recover three times the annual premium of the insurance policy in force on the mortgaged property.
D. Tex. Ins. Code art. 21.55 This complex statute allows for an 18 penalty (interest) per year for a delay in paying claims on first party case. This can be a significant tool for plaintiff attorneys. It is nearly always violated in UM/UIM insurance cases.
VIII. INJURY
Damages are intended to compensate the victim for the injuries he or she incurred as a result of the negligent or intentional harm of the defendant. Texas courts historically construe the limits of "physical injury" liberally, including in its definition psychological and physiological manifestations of physical injury or in some instances, the physical results of sheer fright or psychic shock.
In any circumstance, Texas courts require the plaintiff to demonstrate a clear connection between the injury and the damages sustained. Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996). Specifically, the Texas Supreme Court in Leitch requires that where there is no medical testimony linking the alleged negligence to the injury, a claimant must provide probative evidence, through expert testimony, connecting the injury to the alleged negligence. Leitch, 935 S.W.2d at 119; See also, Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970); Sears, Roebuck & Co. v. Hurst, 652 S.W.2d 563, 565 (Tex.App.--Fort Worth 1983, writ ref'd n.r.e.); Orkin Exterminating Co. v. Davis, 620 S.W.2d 734, 736-37 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.); cf. Royal Globe Ins. Co. v. Suson, 626 S.W.2d 161, 163-64 (Tex.App.--Fort Worth 1981, writ ref'd n.r.e.) (holding that expert testimony not required to establish link between back injury and on-the-job incident). The author will consider what constitutes probative evidence in the discussion that follows each section of damages.
IX. ECONOMIC DAMAGES
These damages are the most easily measured in a personal injury case. They include damages that can be easily reduced to figures which may be reflected in hospital bills or other documents, such as medical expenses, loss of earning capacity and loss of household services.
A. MEDICAL EXPENSES
Plaintiff can recover reasonable expenses incurred for medical, surgical, hospital and nursing services and any other items reasonably and necessarily incurred in effecting a cure of one's injuries. Texas & N.O.R. Co. v. Parry, 1 S.W.2d 760 (Tex. Civ. App. - Texarkana 1927), rev'd on other grounds, 12 S.W.2d 997 (Tex. 1929); Travelers Ins. Co. v. Brown, 750 S.W.2d 916 (Tex. App. -- Amarillo 1988, writ denied). For instance, transportation expenses in relation to medical treatment are recoverable. Coca-Cola Bottling Co. of Plainview v. White, 545 S.W.2d 279 (Tex. Civ. App. -- Waco 1977, no writ).
Recovery of medical expenses is not barred by the fact that medical bill were paid by insurance or Social Security or by the fact that treatment was rendered gratis. Morgan v. Woodruff, 208 S.W.2d 628 (Tex. Civ. App. - Galveston 1948, no writ).
1. Proving Medical Expenses
To recover past and future medical expenses the plaintiff must establish that the expenses are "reasonable" and that the treatment was "necessary". Dallas Ry. & Terminal Co. v. Gossett, 294 S.W.2d 377 (Tex. 1936); Orkin Exterminating Co., Inc. v. Davis, 620 S.W. 2d 734 (Tex. Civ. App. -- Dallas 1984, writ ref'd n.r.e.)Fort Worth v. Barlow, 313 S.W.2d 906 (Tex. Civ. App. - Fort Worth 1958, writ ref'd n.r.e.)Dallas Ry. & Terminal Co., 294 S.W.2d 377.
This author suggests a four-pronged attack to have medical records and bills admitted into evidence. Medical records and bills should be initially obtained by affidavit from the records custodian. If an opposing party requests medical records by deposition on written questions, and you are offering them by affidavit, prove up the medical (business) records exception to the hearsay rule by cross question. If you take your medical expert's deposition, stretch his or her testimony as far as it will go to prove up the hearsay exceptions. Finally, send requests for admission to your opponent, requesting them to admit that medical records meet the hearsay exceptions and the bills were reasonable and necessary.
a. Admitting Medical Bills by Affidavit
The Texas Rules of Civil Evidence and the Texas Civil Practice & Remedies Code outline the process by which a party may admit medical records and bills by affidavit to the court. The affidavit for admitting records is governed by Texas Rule of Civil Evidence 803(4) or 803(6) in combination with Texas Rule of Civil Evidence 902(10). The admissibility of medical bills is governed by Texas Civil Practice & Remedies Code § 18.001 et seq.
The need for evidence of the reasonableness and necessity of the medical expenses has been upheld on a number of occasions. See, Monsanto Company v. Johnson, 675 S.W.2d 305, 312 (Tex. App. -- Houston [1st Dist.] 1984, writ ref'd n.r.e., 696 S.W.2d 558)Six Flags Over Texas, Inc. v. Parker, 759 S.W.2d 758 ( Tex. App. -- Fort Worth 1988, no writ)Id. at 761. See also, Southwestern Bell Telephone Co. v. Wilson, 768 S.W.2d 755 (Tex. App. -- Corpus Christi 1988, writ denied). See also, National Union Fire Ins. Co. of Pittsburgh v. Wyar, 821 S.W.2d 291, 297 (Tex. App. -- Houston [1st Dist.] 1991, no writ). The requirements for this affidavit are set out in Texas Civil Practice & Remedies Code § 18.001 et seq. That section provides for the admissibility of an affidavit, so long as it is filed more than thirty (30) days before the day on which the evidence is first presented at the trial of the case. The affiant must be a person who provided the services, or the person in charge of the records showing that the services provided and the charges made were reasonable and necessary. An itemized statement of the services and charges must be provided.
It is important to note that the party offering the affidavit into evidence must file the affidavit at least thirty (30) days "before the day on which evidence is first presented at the trial of the case." The rule is very specific that it is the commencement of evidence, and not the trial setting that is important.
A doctor or health care provider does not have to sign the affidavit. Rather, the records custodian who is in charge of billing can fill out the affidavit. However, a party intending to controvert a claim reflected by the affidavit must file a counter-affidavit signed by such an expert. The counter-affidavit must be filed with the clerk and served on each of the parties or the parties' attorneys of record no later than thirty (30) days after the day he receives a copy of the affidavit, and at least fourteen (14) days before the day on which evidence is first presented at the time of trial.
The counter-affidavit must give reasonable notice of the bases on which the party filing it intends at trial to controvert the claim reflected by the initial affidavit, and must be taken before a person authorized to administer oath. The counter-affidavit must be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise to testify in contravention of all or part of any of the matters contained in the initial affidavit. In other words, the person submitting the affidavit does not have to have an expert sign the affidavit; however, the person controverting the affidavit must be such an expert.
The affidavit itself only provides for the admissibility of medical bills that the party has incurred in the past. It does not allow for the admissibility of future damages or estimated damages.
If the affidavit only proves up the reasonableness and necessity of the charges, it does not necessarily establish the amount of damages as a matter of law. For instance, in Kulms v. Jenkins, 557 S.W.2d 149 (Tex. Civ. App. -- Amarillo 1977, writ ref'd n.r.e.), Mr. Jenkins was involved in an automobile accident. Affidavits were submitted showing the reasonableness and necessity of medical expenses totaling over seventeen hundred dollars. However, no evidence was admitted to show that the medical records were as a result of the collision. Plaintiff's attorney pointed out to the appellate court that notations referring to the accident appeared in the hospital's records. However, the court found that, without more, the notations were hearsay and were, therefore, properly excluded. All damage awards for the medical bills were excluded. This case is contrasted with Hill v. Clayton, 827 S.W.2d 570 (Tex. App. -- Corpus Christi 1992, no writ). In Hilland v. Arnold, 856 S.W.2d 240 (Tex. App. -- Texarkana 1993, no writ)
Reasonableness and necessity of medical expenses may also be established through the use of written depositions. See, Tex. R. Civ. Proc. 200.4.
In obtaining the deposition on written question for bills, the person who is answering the deposition must be qualified to testify that in their opinion the bills were reasonable and necessary. Obviously, unlike the affidavit, this would require the testimony of the medical doctor. Generally, medical doctors charge for their time in rendering such an opinion. Moreover, the scheduling of the doctor's deposition could be costly and time-consuming.
As with the deposition upon oral examination, after the commencement of a lawsuit, any person can be compelled to respond to a deposition on written questions. See, Tex. R. Civ. Proc. 200.4. The notice requirements can be found at Tex. R. Civ. Proc. 200.1, and leave of court is not required unless the deposition is sought before the appearance date for any defendant. The most significant differences are that the notice must be served at least twenty (20) days prior to the date that the testimony is taken and must include the direct examination questions to be propounded to the witness.
Rule 200.3(b) states that any party may serve cross-questions upon each party within ten (10) days of the date of service, redirect questions may be served with in five (5) days of the receipt of the cross-examination, and re-cross should be served within three (3) days of the receiving of the redirect questions. Any objections must be made within the time provided for serving the additional questions. See, Tex. R. Civ. Pro. 200.3(b).
The deposition by written question can, however, be a rather rigid form which does not permit the examiner to follow up a line of inquiry or develop a more detailed response. The attorneys do not have the opportunity to explain their questions or help define the requests if the witness misunderstands. Moreover, there is no way to observe the witness' demeanor. For these reasons, it is not advisable to rely upon this type of deposition for obtaining information regarding medical bills.
c. Admitting Medical Bills by Expert Testimony
Obviously, most medical records and bills are admitted through the use of expert testimony. In a personal injury case, many times the plaintiff's main treating physician's deposition is taken in order to get an understanding of past and future medical damages. During this time, it is usually customary to ask questions to prove up the plaintiff's medical bills. Testimony is usually elicited bout future medical expenses as well. However, many times the plaintiff's expert is limited to his area of specialty. For example, an orthopedic surgeon may not be familiar with the costs that are reasonable and necessary for neurologists, radiologists, or doctors of internal medicine to charge the plaintiff.
d. Admitting Medical Bills by Request for Admission
The request for admission is a very practical tool to prove medical damages. See, Tex. R. Civ. P. 198. If admitted to in a properly phrased admission, the medical records and bills become admissible automatically.
Under amended Rule 198, requests for admission may relate to any matter deemed discoverable under Texas Rules of Civil Procedure. Further, Rule 198 provides that it is not grounds for objection that the requests ask for statements of fact or law and fact, or that documents referred to in a request may not be admissible at trial. Tex. R. Civ. P. 166b(2)(a).
2. Future Medical Expenses
To recover future medical expenses, the plaintiff must establish that "there is a reasonable probability that such medical expenses will be incurred in the future.' City of Rosenberg v. Renken, 616 S.W.2d 292 (Tex. Civ. App. -- Houston [14th Dist.] 1981, no writ); Pipgros v. Hort, 832 S.W.2d 360 (Tex. App. -- Fort Worth, writ denied)Hughett v. Dwyre, 624 S.W.2d 401 (Tex. Civ. App. - Amarillo 1981, writ ref'd n.r.e.)City of Houston v. Moore, 389 S.W.2d 545 (Tex. Civ. App. - Houston 1965, writ ref'd n.r.e.). See also City of Rosenberg v. Renken, supra.
Cases are in conflict as to just what the doctor must say to establish future medical expenses. It is always safest to use the specific term "in reasonable medical probability." However, it is the substance of the expert's testimony and not the use of any particular term or phrase that governs. Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex. 1966); see also, Brown v. Friedman, 451 S.W.2d 588 (Tex. Civ. App. - Houston [1st Dist.] 1970, no writ)Union Oil Co. v. Richard, 536 S.W.2d 955 (Tex. Civ. App. - Beaumont 1975, writ ref'd n.r.e.)Hughett v. Dwyre, supra. See also Browning v. Paiz, 586 S.W.2d 670 (Tex. Civ. App. - Corpus Christi 1979, writ ref'd n.r.e.) in which the doctor testified that "the patient will require medical care ..., they would be expected to run into the thousands of dollars, and really the way prices are escalating, I don't know how many it would be... I would say a minimum of ten thousand." Armellini, supra.
Recently, the Texas Supreme Court held that in order to establish future medical damages, there must be evidence not only that mental anguish will be suffered in the future, but evidence to justify the amount awarded. Saenz v. Fidelity and Guaranty Insurance Underwriters, 925 S.W.2d 607 (Tex. 1996). Ms. Saenz was injured on the job when her chair fell backward and she struck her head on the floor. Fidelity, the workers’ compensation carrier for Saenz’ employer, offered her a lump sum payment with medical coverage for a limited number of years. Id. When she received a copy of her medical records, she discovered the lifetime benefits provision and sued Fidelity for bad faith and DTPA violations. Id. The jury found fraud and bad faith that caused Saenz to suffer $50,000 for past mental anguish, $200,000 for future mental anguish, $500,000 for future medical costs and $250,000 in exemplary damages against Fidelity’s agent. Id. The court of appeals ruled that the trial court erred in awarding damages for future medical expenses since there was no evidence that Saenz had or would incur any medical costs as a result of Fidelity’s wrongful conduct. Id. The Supreme Court affirmed the Court of Appeals’ ruling and reversed and remanded the action as to this element of damage, leaving no actual damages to support the award of punitives. The Court held specifically that the two sentences in the record that documented the plaintiff’s concern about future medical expenses did not establish a substantial disruption in the plaintiff’s daily routine or other evidence of a high degree of mental pain or distress. Thus, the Court held that there must be evidence not only of the existence of future damages, but evidence that the amount awarded is fair and reasonable.
3. Medical Care for Minors
Because parents are legally responsible for the medical expenses of their children, when a minor child is injured, recovery of medical expenses up until the age of 18 is a cause of action which belongs to the parents. See, Sax v. Vottelor, 648 S.W.2d 661 (Tex. 1983); Id.; Dartez v. Gadbois, 541 S.W.2d 502 (Tex. Civ. App. -- Houston [1st Dist.] 1976, no writ). Therefore, future medical expenses should be submitted separately to segregate the parents' and minors recovery. Roth v. Law, 579 S.W.2d 949 (Tex Civ. App. -- Corpus Christi 1977, writ ref'd n.r.e.).
It should be noted that the minor's negligence or comparative negligence affects both his and the parents' recovery; while the parents' negligence or comparative negligence affects only the parents' recovery. See, Dartez v. Gadbois, supra.
B. LOSS OF EARNINGS AND EARNINGS CAPACITY
Loss of earning capacity damages compensate the plaintiff for the diminished capacity to earn a livelihood. Border Apparel-East, Inc. v. Guardian, 868 S.W.2d 894 (Tex. App. -- El Paso 1993, no writ), citing, Bonney v. San Antonio Transit Co., 325 S.W.2d 117, 121 (Tex. 1959). Such damages may be awarded for the difference between what the plaintiff was capable of earning prior to the injury and the amount the plaintiff is capable of earning after the injury. See, Crown Plumbing Inc. v. Petrozak, 751 S.W.2d 936, 938 (Tex. App. -- Houston [14th Dist.] 1988, writ denied).
Because loss of earning capacity damages focus on the capacity to earn, such damages are not limited by the plaintiff's salary prior to injury. Vetar Hosp., Inc. v. Estrada, 694 S.W.2d 359, 363 (Tex. App. -- Corpus Christi 1985, no writ). Thus, a plaintiff may recover loss of earning capacity damages despite being unemployed at the time of injury, See, Wal-Mart Stores, Inc. v. Cordova, 856 S.W.2d 768 (Tex. Civ. App. -- El Paso 1993, no writ); continuing to work while impaired, See, Springer v. Baggs, 500 S.W.2d 541 (Tex. Civ. App. -- Texarkana 1973, writ ref'd n.r.e.); receiving wages although not working, see, City of Houston v. Riggins, 568 S.W.2d 188 (Tex. Civ. App. -- Tyler 1978, writ ref'd n.r.e.)City of Rosenberg v. Renken, 616 S.W.2d 292 S.W.2d 292, 293-294 (Tex. Civ. App. -- Houston [14th Dist.] 1981, no writ)Ryan v. Hardin, 495 S.W.2d 345, 358-360 (Tex. Civ. App. -- Austin 1973, no writ). Unlike loss of earning capacity, to recover loss of earning damages, the plaintiff must prove such damages with reasonable certainty. Moreover, evidence must be offered to establish the actual amount of earnings lost in the past.
1. Proving Loss of Earning Capacity
Loss of earning capacity damages are always uncertain, and therefore, left largely to the sound discretion of the jury. McIver v. Gloria, 169 S.W.2d 710, 712 (Tex. 1943); Springer v. Baggs, 500 S.W.2d 541, 544 (Tex. Civ. App. -- Texarkana 1973, writ ref'd n.r.e.); Bonney v. San Antonio Transit Co., 25 S.W.2d 117, 121 (Tex. 1959)McIver v. Gloria, 169 S.W.2d 710, 712 (Tex. 1943). Thus, earnings prior to an injury must ordinarily be shown. Id..
Evidence of prior earnings need not, however, be limited to those earnings derived from the plaintiff's employment immediately prior to the injury. McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 711 (1943). For instance, in Springer v. Baggs, the Texarkana Court of Appeals recognized that factors such as stamina, efficiency, ability to work with pain, and the weakness and degenerative changes which naturally result from an injury and from long-suffered pain are legitimate considerations in determining whether or not a person has experienced as impairment in future earning capacity. Springer, 500 S.W.2d at 544.
Thus, as recently recognized in
Lost profits resulting from the inability to carry on business in the usual manner may serve as evidence of loss of earning capacity where the plaintiff is self-employed. Dallas Ry. & Terminal Co. v. Darden, 38 S.W.2d 722 (Tex. Comm'n. App. 1931, opinion adopted). However, when profits do not result solely from the plaintiff's personal earning capacity, but also from the labor of their employees and the return on capital invested in machinery, profits from self-employment are not a true measure of one's earning capacity. Pressey v. Patterson, 898 F.2d 1018, (5th Cir. 1990) King v. Skelly, supra. See also McCandless v. Beech Aircraft Corp., 779 F.2d 220 (5th Cir. 1985);
(b) The effect of injury on the financial returns of the business, that is, a comparison of the before and after financial returns or income of the business. Red Arrow Freight Lines v. Gravis, 84 S.W.2d 540 (Tex. Civ. App. - San Antonio 1935, no writ);
(c) The cost of hiring someone to take plaintiff's place at a stated wage or what it would cost to hire such a person. Cummings v. Van Valin, 363 S.W.2d 385 (Tex. Civ. App. - Waco 1962, writ ref'd n.r.e.)Greyhound Lines, Inc. v. Craig, 430 S.W.2d 573 (Tex. Civ. App. - Houston [1st Dist.] 1968, writ ref'd n.r.e.)Greyhound Lines, Inc. v. Duhon, 434 S.W.2d 406 (Tex. Civ. App. - Houston [1st Dist.] 1968, no writ)Wharf Cat, Inc. v. Cole, 567 S.W.2d 228 (Tex. Civ. App. - Corpus Christi 1978, writ ref'd. n.r.e.)
Generally, any evidence tending to show the plaintiff's ability to work and earn money before or after his injuries is admissible. The following are illustrations of evidence held admissible to prove loss of earning capacity:
(a) Jobs that the plaintiff held and amount of money earned. Jones v. Martin, 481 S.W.2d 467 (Tex. Civ. App. - Texarkana 1972, no writ);
(b) Tax records, to the extent they show earnings from work. Wilkens v. Royal Indemnity Co., 592 S.W.2d 64 (Tex. Civ. App. - Tyler 1979, no writ);
(c) Plaintiff's physical and mental ability and his education and training for work. Martin v. Jenkins, 381 S.W.2d 115 (Tex. Civ. App. - Amarillo 1964, writ ref'd n.r.e.);
(d) Fringe benefits in addition to the base salary. Tom's Toasted Peanuts, Inc. v. Doucette, 469 S.W.2d 399 (Tex. Civ. App. - Beaumont 1971, writ ref'd n.r.e.); and
(e) Prospects for advancement or promotion with increased pay, if there is "reasonable prospect thereof." Smith v. Triplett, 83 S.W.2d 1104 (Tex. Civ. App. - Galveston 1935, no writ).
The collateral source rule renders inadmissible, of course, any gratuitous payments to plaintiff or payments from third party sources such as Social Security payments, workers' compensation payments and welfare benefits. R.E. Dumas Milner Chevrolet Co. v. Morphis, 337 S.W.2d 185 (Tex. Civ. App. - Fort Worth 1960, writ ref'd n.r.e.). Moreover, in considering damages to be awarded for loss of earning capacity, a jury is not entitled to consider, and evidence bearing on same is inadmissible, the fact that the recovery will not be subject to income taxes. Turner v. General Motors, 584 S.W.2d 844 (Tex. 1979); Texas Consolidated Transportation Co. v. Eubank, 340 S.W.2d 830 (Tex. Civ. App. - Waco 1960, writ ref'd n.r.e.).
The United States Supreme Court has, however, held that in an F.E.L.A. case, where income tax would have a substantial impact on one's earnings, the jury must be instructed that the damage award is not subject to income taxation. Norfolk & Western R.R. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980). In federal causes of action in which the state law of damages is applied, Gulf Offshore Company v. Mobil Oil Corp., 594 S.W.2d 496 (Tex. Civ. App. - Houston [14th Dist.] 1979); aff'd in part and remanded, 453 U.S. 475, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1980), on remand, 628 S.W.2d 171 (Tex. Civ. App. -- Houston [14th Dist.] 1982 writ. ref'd n.r.e.), cert. denied, 459 U.S. 945, 103 S.Ct. 259, 74 L.Ed.2d 202 (1982)Liepelt did not apply to a cause of action under the Outer Continental Shelf Land Act because this federal cause of action incorporates state law with respect to the law of damages that applied.
C. LOSS OF HOUSEHOLD SERVICES
As opposed to loss of consortium which is a separate and distinct cause of action that compensates for the loss of emotional and intangible elements of a marriage, loss of services compensates a husband or wife for the loss of services provided by the injured spouse. Id. However, the value of a husband or wife is not measured necessarily by a pecuniary wage but is intangible and within the sound discretion of a jury in light of their experience in everyday affairs. C.E. Duke's Wrecker Service v. Oakley, 526 S.W.2d 228 (Tex. Civ. App. - Houston [1st Dist.] 1975), appeal on remand; Oakley v. C.E. Duke's Wrecker Service, 557 S.W.2d 810 (Tex. Civ. App. - Houston [1st Dist.] 1977, writ ref'd n.r.e.).
1. Proving Loss of Household Services
The plaintiff is not required to put a monetary value on the loss of household services. Arando v. Higgins, 220 S.W.2d 291 (Tex. Civ. App. - El Paso 1949, writ ref'd n.r.e.). Evidence of a homemaker's education, training, experience, state of health and life expectancy may be presented to aid the jury in ascertaining the value of such services. Texas Telegraph & Telephone Co. v. Scott, 60 Tex. Civ. App. 39, 127 S.W. 587 (1910, writ ref'd). Moreover, the plaintiff must present some evidence of what services, if any, the injured spouse can no longer perform. See, Gerland's Food Fair, Inc. v. Hare, 611 S.W.2d 113 (Tex. Civ. App. -- Houston [1st Dist.] 1980, writ ref'd n.r.e.).
Evidence of the cost to replace one's household services is admissible but does not limit recovery. Craver-Hicks Building Maintenance, Inc. v. Vanlandingham, 444 S.W.2d 669 (Tex. Civ. App. - El Paso 1969, no writ); Fort Worth v. Weisler, 212 S.W.280 (Tex. Civ. App. - Fort Worth 1919, no writ)
Damages such as mental anguish, physical pain, loss of enjoyment of life and loss of relationship with the injured victim are not as easy to quantify as purely economic damages and are thus more difficult to discover and prove. This section focuses on the more “intangible” kinds of damage resulting from harm to or invasion of an individual’s body.
A. PHYSICAL PAIN AND SUFFERING
Physical pain is a proper item of recovery and the law recognizes that it is susceptible only of approximate money evaluation. Hernandez v. Baucum, 344 S.W.2d 498 (Tex. Civ. App. - San Antonio 1961, writ ref'd n.r.e.). As such, the amount of damages necessary to compensate for "pain" cannot be determined by a set formula. Green v. Meadows, 527 S.W.2d 496 (Tex. Civ. App. - Houston [1st Dist.] 1975, writ ref'd n.r.e.) Instead, damages for physical pain are left to the sound discretion of the jury based upon their common knowledge and sense of justice. Apache Ready Mix Co., Inc. v. Creed, 653 S.W.2d 79 (Tex. App. -- San Antonio 1983, writ ref'd n.r.e.).
Physical pain damages may only be recovered for pain that is consciously experienced. Sharpe v. Munoz, 256 S.W.2d 890 (Tex. Civ. App. -- San Antonio 1953, no writ). Thus, when a plaintiff suffers physical pain subsequent to an injury, yet prior to death or loss of consciousness, evidence must be offered to establish the length of time in which the plaintiff was conscious. Id. If the evidence shows that the plaintiff's ability to experience pain has been totally destroyed, there can be no recovery for physical pain. Western Union Tel. Co. V. Tweed, 183 S.W. 1155 (Tex. Civ. App. -- Dallas 1911), aff'd., 166 S.W. 696 (Tex. 1914).
Physical pain is sometimes referred to as "physical suffering," but the more accepted usage for jury submission purposes is "physical pain." Moreover, the terms "conscious pain" or "conscious physical pain" are more appropriately used in wrongful death or coma cases and are not customarily used in a personal injury case.
In order to recover for future physical pain, evidence must be presented to establish that there is a reasonable probability that the plaintiff will continue to experience pain in the future. Verhalen v. Nash, 330 S.W.2d 676 (Tex. Civ. App. -- Texarkana 1959, writ ref'd n.r.e.).
1. Proving Physical Pain & Suffering
When a plaintiff receives a serious bodily injury, the jury is allowed to presume that a certain degree of physical pain existed. See, Luna v. Southern Pacific Transp. Co., 724 S.W.2d 383, 385 (Tex. 1987). Thus, no direct proof of the existence of pain is necessary if the evidence of the nature and extent of injuries permits an inference that pain would be suffered. Coastal States Gas Producing Co. v. Locker, 436 S.W.2d 592 (Tex. Civ. App. - Houston [14th Dist.] 1968, no writ). However, if there is any controversy about the existence of pain, then evidence must be adduced that the plaintiff did suffer physical pain in order to submit this element of damages to the jury. Walker v. Kellar, 218 S.W.2d 792 (Tex. Civ. App. - San Antonio 1920) on rehearing, 226 S.W. 796 (Tex. 1921); Panhandle & Santa Fe v. Jones, 105 S.W.2d 443 (Tex. Civ. App. - Amarillo 1937, no writ).
The Plaintiff may offer evidence of physical pain by describing both objective symptoms, such as a bump on the head, and subjective symptoms, such as headaches. Tamburello v. Welch, 383 S.W.2d 936 (Tex. Civ. App. - Waco 1964), rev'd on other grounds, 392 S.W.2d 114 (Tex. 1965). He/she may also describe how his/her pain has improved or worsened and show the jury the injured part of his/her body. Loughry v. Hodges, 215 S.W.2d 669 (Tex. Civ. App. - Fort Worth 1948, writ ref'd n.r.e.)United States Fidelity & Guaranty Co v. Nettles, 21 S.W.2d 31 (Tex. Civ. App. - Waco 1929) , rev'd on other grounds, 35 S.W.2d 1045 (Tex. Comm'n App. 1931, holding approved)Irving v. Shipp, 342 S.W.2d 449 (Tex. Civ. App. - Fort Worth 1961, writ ref'd n.r.e.)Hernandez v. Baucum, supra. Third parties, such as friends or relatives, may testify as to their observations of the plaintiff's suffering. Classen v. Benfer, 144 S.W.2d 633 (Tex. Civ. App. - San Antonio 1940, writ dism'd judgmt. cor.). Moreover, declarations or statements by the plaintiff to such individuals about his pain or anguish may be admissible under an exception to the hearsay rule. See, TEX. R. CIV. EVID. 803(3); Carrico v. Busby, 325 S.W.2d 413 (Tex. Civ. App. - Houston 1959, writ ref'd n.r.e.).
The testimony of medical experts may be invaluable in proving the existence of pain. Such experts, with the use of medical demonstrations and explanations, can educate the jury on the anatomical and psychological basis of pain. For instance, a doctor can testify that the injury in question is a "painful injury"; that the patient's history included complaints of pain, and that the doctor found objective signs of injury, e.g., muscular spasticity, which confirm the presence of pain. See Missouri P.R.R. v. Cunningham, 515 S.W.2d 678 (Tex. Civ. App. - San Antonio 1974, writ dism'd). Additionally, the patient's declarations to the treating physician concerning his/her pain are admissible. Austin Road Co. v. Thompson, 275 S.W.2d 521 (Tex. Civ. App. - Fort Worth 1955, writ ref'd n.r.e.); Tex. R. Civ. Evid. 803(4).
2. Closed Head Injuries
A plaintiff who has suffered a closed head injury (CHI) may potentially recover for damages in two major areas: physical and psychological damages. Physically, the outcome of a CHI is often severe. First, the patient may suffer from permanent cognitive defects, including a disturbance of memory, concentration, intellect, and language. Neil Brooks, Closed Head Injury: Psychological, Social, and Family Consequences 44-74 (1984). Attentional defects are also common. Id. at 74-107.
Cases which involve injury to the plaintiff's head often present unique problems. In addition to potentially devastating physical damage, which may no longer visibly appear to be critical, the psychological implications of CHI are intense, they do not subside quickly, and the patient is in a vulnerable position for a long period of time. Lester Kaiser, M.D., The Traumatic Neurosis 135 (1968). In most cases, there is no medical proof of what causes post-head injury symptoms. Id. at 137. The body's emotional response to head injury may, however, include nervousness, irritability, fatigability, changes in personality, depressions, and tinnitus. Id. In turn, these symptoms may result in the plaintiff/patient's becoming socially isolated, especially from his family. Brooks at 118-19.
Often, a client who has suffered a CHI will be a limited source of testimony on his own damages. Commonly, a patient recovering from such an injury will be aware only of his constant anger, frustration, and confusion at his diminished capacity. Practically, the client may not be very likable because of these feelings, and the attorney should, in some cases, warn the jury of that fact.
Family members and friends of the plaintiff may provide testimony regarding the changes in the plaintiff's personality and behavior of which even the plaintiff himself may not be aware. Counsel should ask the client's family members as to whether he or she has experienced any symptoms related to a CHI. J. Hadley Edgar & James B. Sales, 4 Texas Torts and Remedies § 81.101[1] (1993). Evidence that the client has become "harder to live with," or has "not been the same" since the accident all tend to prove the client's damage as a result of the injury.
Id.
Expert testimony is essential in any suspected CHI case. Id. at § 81.101[2][a]. A neurologist will be able to document and confirm the diagnosis of head injury for the jury and explain to the trier of fact the effects of the injury. Id. In addition, a psychiatrist or psychologist can assist the neurologist in presenting and proving the extent of injury. Id. Neuropsychiatrists and neuropsychologists may also be helpful in dealing with issues such as whether the plaintiff's intelligence or other mental faculties have been impaired. Id.; see, e.g. Kennedy v. Missouri Pac. R.R. Co., 778 S.W.2d 552, 555-557 (Tex. App. -Beaumont 1989, writ denied).
B. PHYSICAL IMPAIRMENT
Physical impairment is defined as impairment beyond loss of earning capacity or mere pain and suffering, French v. Grigsby, 567 S.W.2d 604 (Tex. Civ. App. -- Beaumont 1978, writ ref'd n.r.e.); Goldston Corp. v. Hernandez, 714 S.W.2d 350, 352 (Tex A pp. Corpus Christi 1986, writ denied); Green v. Baldree, supra.
Physical impairment is also distinguishable from pain and mental anguish. See, Johnson v. King, 821 S.W.2d 425 (Tex. App. -- Fort Worth, 1991, writ denied). While depression and other emotional manifestations of injuries are compensable as physical pain and mental anguish, loss of memory and problem-solving deficits would be recoverable under physical impairment. French v. Grigsby, 571 S.W.2d 867 (Tex. Civ. App. - Beaumont 1978, no writ)Johnson v. King, supra.
1. Proving Physical Impairment
To recover physical impairment damages, a plaintiff must prove that he/she has a physical disability which extends beyond mere pain or impairment of his earning capacity to an extent that it produces a separate and distinct loss that is substantial and for which he should be compensated. Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388 (Tex. Civ. App. - Corpus Christi 1968, writ ref'd n.r.e.)Green v. Baldree, supra.
C. DISFIGUREMENT
Disfigurement has been defined as "that which impairs the beauty, symmetry, or appearance of a person or thing; that renders unsightly, misshappened, or imperfect, or deforms in some manner." Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880, 883 (1949). It is an element of damages separate and apart from physical pain and mental anguish. Pedernales Electric Cooperative, Inc. v. Schulz, 583 S.W.2d 882 (Tex. Civ. App. - Waco 1979, writ ref'd n.r.e.).
Disfigurement damages are typically recovered in cases involving scarring, amputation, deformity or other changes in appearance that result from an injury. For instance, in Southwestern Bell Telephone Co. v. Ferris, 89 S.W.2d 229 (Tex. Civ. App. -- Dallas 1935, writ dism'd), disfigurement damages were recovered for a scar on the plaintiff's forehead. However, a illustrated in Baptist Memorial Hosp. v. Smith, 822 S.W.2d 67 (Tex. App. -- San Antonio 1991, writ denied), disfigurement may arise from injuries not traditionally associated with disfigurement.
In Hopkins County Hosp. Dist. v. Allen, 760 S.W.2d 341 (Tex. App. -- Texarkana 1988, no writ)Baptist Memorial Hospital System v. Smith, 822 S.W.2d 67 (Tex. App. -- San Antonio 1991, writ denied). Because such damages compensate for the future embarrassment and suffering that arises from an existing injury, future disfigurement damages do not require evidence of future or further disfigurement. However, evidence of further disfigurement would be relevant in assessing the amount of damages.
At times, a plaintiff may recover for the self-consciousness and embarrassment associated with an injury under either disfigurement or mental anguish damages. Therefore, when disfigurement is submitted to the jury as a damage issue separate and apart from physical pain and mental anguish, an instruction should be given against double recovery. See, Rosenblum v. Bloom, 492 S.W.2d 321 (Tex. Civ. App. - Waco 1973, writ ref'd n.r.e.). See also, III.A.4., supra.
1. Proving Disfigurement
The existence of disfigurement at the time of trial will permit a reasonable inference of future disfigurement. Southwestern Bell Telephone Co. v. Ferris, 89 S.W.2d 229 (Tex. Civ. App. -- Dallas 1935, writ dism'd). To illustrate, testimony by a plaintiff that his hand "appeared deformed" and that "he was reluctant to s how his hand to his wife" and "embarrassed to shake hands" supported recovery of disfigurement damages. See, Texas Farm Products Co. v. Leva, 535 S.W.2d 953 (Tex. Civ. App. -- Tyler 1976, no writ); See also, International Harvester, Co. v. Zavala, 623 S.W.2d 699 (Tex. Civ. App. - Houston [1st Dist.] 1981, writ ref'd n.r.e.)Coastal States Gas Producing Co. v. Locker, 436 S.W.2d 592 (Tex. Civ. App. - Houston [14th Dist.] 1968, no writ). Proof of disfigurement may also be established by allowing the jury to inspect the plaintiff's injury.
Pain and suffering connotes the physical sensations when an injury has occurred to the body. Ford Motor Co. v. Durrill, 714 S.W.2d 329, 343 (Tex. App.--Corpus Christi 1986), vacated by agm't, 754 S.W.2d 646 (Tex. 1988). Mental anguish, on the other hand, includes “a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, wounded pride, shame, despair, and public humiliation.” Benefit Trust Life Ins. Co. v. Littles, No. 04-91-00673-CV, 1993 WL 437192, at 12 (Tex. App.--San Antonio, Oct. 29, 1993), citing GAB Business Servs., Inc. v. Moore, 829 S.W.2d 345, 350 (Tex. App.--Texarkana 1992, no writ). Mental anguish, for the injured victim, connotes a state of mind which includes contemplation by that party of the disfigured or maimed condition which he is in as a result of an injury. Id. It includes such items as worry, concern, fear, embarrassment and despondence and may exist while one is not currently experiencing pain from a physical injury. See, Southwestern Bell Tel. Co. v. Cook, 30 S.W.2d 497 (Tex. Civ. App. -- Fort Worth 1930, writ ref'd).
Historically, some jurisdictions did not allow individuals to recover damages for mental anguish under the theory that such damages were too remote and intangible to accurately calculate. See Houston Electric Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546, 547 (1946). The Texas Supreme Court’s ruling in St. Elizabeth Hospital v. Garrard, however appeared to recognize negligent infliction of emotional distress as an independent cause of action. Id. at 652. The pendulum rapidly swung however in the opposite direction when the Court held in Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) that there was no general claim for negligent infliction of emotional distress under Texas law as there is for intentional infliction of emotional distress. Id. at 594; See Twyman v. Twyman, 555 S.W.2d 619 (Tex. 1993). Rather, a claimant can only recover mental anguish damages in connection with a defendant’s breach of some other legal duty. Id.
While physical pain and mental anguish are usually treated as one element of damages for jury submission purposes, mental anguish is a separate and distinct element of Texas damages recognized under Texas law. Texas & N.O.R. Co. v. Cammack, 280 S.W.2d 864 (Tex.App.--Texarkana 1926, error ref’d); Leyendecer v. Harlow, 189 S.W.2d 706 (Tex.App. -- Galveston 1945, writ ref’d w.o.m.). Thus, mental anguish damages may be the only element of actual damages. Jenkins v. Hennigan, 298 S.W.2d 905 (Tex. Civ. App. - Beaumont 1957, writ ref'd n.r.e.)Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986)Dulaney Inv. Co. v. Wood, 142 S.W.2d 379 (Tex. Civ. App. -- Fort Worth 1940, writ dism'd judgmt. cor.)Missouri, K. & T. Railway Co. v. Miller, 61 S.W. 978 (Tex. Civ. App. 1901, writ ref'd.)Houston Lighting & Power Co. v. Reed, 365 S.W.2d 26 (Tex. Civ. App. - Houston 1963, writ ref'd n.r.e.)Houston Lighting & Power Co., 365 S.W.2d 26, should be treated as a separate item of damages for jury submission purposes. See, 3 State Bar of Texas, Texas Pattern Jury Charges, PJC 80.00 et al. (1990).
Because mental anguish damages are so intangible, Texas courts have defined mental anguish as a heightened emotional injury beyond ordinary grief encompassing keen and poignant mental suffering, a high degree of mental suffering, or an intense pain of mind and body. Larrumbide v. Doctors Health Facility, 734 S.W.2d 685 (Tex.App.--El Paso 1990, writ denied) (child died five years before and parents recovering from grief). The court also noted that damages recoverable for mental anguish should be actual mental injuries rather than mere fear, anger or sorrow. Id.
To recover for mental anguish, a plaintiff must demonstrate more than mere worry, anxiety, embarrassment, or anger. National Union Fire Ins. Co v. Dominguez 793 S.W.2d 66, 73 (Tex. App.--El Paso 1990, writ denied); State Farm Mut. Auto Ins. Co. v. Zubiate, 800 S.W.2d 590, 599 (Tex. App.-- El Paso 1991, no writ). Nonetheless, Texas law does not require proof of a physical injury is not necessary in order to recover mental anguish damages. Garrard v. St. Elizabeth Hospital, 730 S.W.2d 649 (Tex. 1987)Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex. 1993); Wheeler v. Yettie Kerstig Memorial Hospital, 866 S.W.2d 32, 41 (Tex. App. -- Houston [1st Dist.] 1993, no writ). Nor does Texas law require proof of economic harm to recover mental anguish damages. Orkin Exterminating v. Williamson, 785 S.W.2d 905, 912 (Tex. App. -- Austin 1990, writ denied). Mental anguish damages, however, may not be predicated on mere anger. Cronin v. Bacon, 837 S.W.2d 265, 269 (Tex. App. -- Fort Worth 1992, writ denied). Nor will mere sadness support recovery of mental anguish damages. Phar-Mor, Inc. v. Chavira, _____ S.W.2d _____, (Tex. App. -- Houston [1st Dist.] 1993, no writ)
There is no set formula for establishing the amount of money to be awarded for mental anguish. Lacoure v. Lacoure, 820 S.W.2d 228 (Tex. App. -- El Paso 1991, writ denied)Missouri Pacific R. Co. v. Lane, 720 S.W.2d 830 (Tex. App. -- Texarkana 1986, no writ)Villard's Department Store v. Strom, 869 S.W.2d 654 (Tex. App. -- El Paso 1994, writ dism'd w.o.j.)Robertson v. Rig-A-Lite Co., 394 S.W.2d 838 (Tex. Civ. App. - Houston 1965, writ ref'd, n.r.e.)Coastal States Gas Producing Co. v. Locker, 436 S.W.2d 592 (Tex. Civ. App. - Houston [14th Dist.] 1968, no writ). However, there can be no recovery for mental anguish if the evidence shows that the plaintiff's ability to experience pain has been totally destroyed as is often contended by the defendant in a coma case. Western UnionHernandez v. Baucum, 344 S.W.2d 498 (Tex. Civ. App. - San Antonio 1961, writ ref'd n.r.e.). City of Houston v. Jean, 517 S.W.2d 596 (Tex. Civ. App. - Houston [1st Dist.] 1974, writ ref'd n.r.e.). Future mental anguish damages are recoverable upon a showing that there is a reasonable probability that such anguish will be suffered in the future. City of Ingleside v. Kneuper, 768 S.W.2d 451, 461 (Tex. App. -- Austin 1989, writ denied.).
Individuals predisposed to psychological trauma due to pre-existing emotional conditions may still recover mental anguish damages. Pallget v. Gray, 727 S.W.2d 706 (Tex. App. -- Amarillo 1987, no writ). However, to rebut evidence of mental anguish the defendant may show, under some circumstances, that the plaintiff is suffering mental anguish for reasons other than the injuries. See Marange v. Lew Williams Chevrolet Co., 371 S.W.2d 900 (Tex. Civ. App. - San Antonio 1963, writ ref'd n.r.e.); White v. McElroy, 350 S.W.2d 251 (Tex. Civ. App. - El Paso 1961, no writ).
2. Submitting Mental Anguish to the Jury
The Texas Supreme Court in Trotti v. K-Mart Corporation, 686 S.W.2d 593 (Tex. 1985) disapproved instructing the jury on the definition of "mental anguish." The Houston 14th Court of Appeals had held earlier, in Gulf States Utility Co. v. Reed, 659 S.W.2d 849 (Tex. App. - Houston [14th Dist.] 1983, writ ref'd n.r.e.), that the term "mental anguish" was not a legal term but one of ordinary significance and meaning and should not be defined. Note, however, that in wrongful death cases, discussed in A.1.b.(3), infra, mental anguish is now to be defined for the jury.
3. Mental Anguish in Non-Death, Non-Bystander Negligence Cases
Garrard v. St. Elizabeth Hospital, 730 S.W.2d 649 (Tex. 1987)Garrard has been overruled by Boyles v. Kerr, 36 Tex. S.Ct.J. 231 (Tex.). The court notes that Boyles, 36 S.Ct.J. at 232Boyles explicitly states that it is not broadening any right to recover mental anguish damages. It seems to stress that it is leaving the right to recover mental anguish damages caused by breaches of existing duties only. Bystander recovery, physical injury, wrongful death, invasion of privacy, negligent handling of a corpse and failure of a telegraph company to timely deliver a death message are listed as duties which will give rise to mental anguish damages.
E. LOSS OF CONSORTIUM
The Texas Pattern Jury Charges defines consortium as the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love, and felicity necessary to a successful marriage. See State Bar of Texas, 3 Texas Pattern Jury Charges § 80.03B (1990); Wal Mart Stores, Inc. v. Alexander, No. D2388, 1993 WL 502513 at 6 (Tex. Dec. 8, 1993).
Loss of society and companionship are elements of loss of consortium. Texas Dept. of Transp. v. Ramming, 861 S.W.2d 460, (Tex. App.-- Houston [14th Dist.] 1993, app. writ of error filed, citing Whittlesey v. Miller, 572 S.W.2d 665, 666 (Tex. 1978). Consortium can be spousal, parental or filial.
1. Spousal Consortium
The Texas Supreme Court first recognized damages for loss of spousal consortium in Id. The impaired spouse sustains direct physical injuries while the deprived spouse sustains damages to the emotional interest stemming from their relationship. Recovery for loss of consortium is the separate property of the spouse who claims the loss. Id. at 669.
The Texas Supreme Court held in Id. The jury will be instructed, however, not to consider the negligence of the injured spouse to reduce the damages of the spouse who recovers consortium damages. See State Bar of Texas, 3 Texas Pattern Jury Charges §80.03B (1990).
Similarly, if an injured spouse's claim against his or her employer is barred under the Texas Worker's Compensation Act, then the deprives spouse's claim will also be barred. Reed, 610 S.W.2d 736. Moreover, settlement releases executed by the injured spouse do not affect the deprived spouse's right to recover for loss of consortium.
In Id. The child may recover, as loss of parental consortium, for such non-pecuniary damages as loss of the parent's love, affection, protection, emotional support, services, companionship, care, and society. Id. at 467. The child may not recover for mental anguish. Id. at 466-67. The Court enumerated that the age of the child, the child’s relationship with the parent, the child’s emotional and physical characteristics, and whether other consortium-giving relationships are available to the child as relevant to an award for loss of parental consortium. Id. at 467.
Although a claim for parental consortium is derivative of the parents' negligence action and subject to being reduced by the contributory negligence of the parent, it is, nonetheless, an independent cause of action belonging to the injured child.
In Enochs v. Brown, 872 S.W.2d 312 (Tex. App. -- Austin 1994, no writ), the Austin Court of Appeals held that parents have a right to recover loss of consortium damages for injuries to a child. The Court noted that injuries to the familial relationship are significant injuries worthy of compensation. Recognizing that the Supreme Court had declared that parents may recover for loss of companionship damages for the wrongful death of a child, the Court stated that "within the Supreme Court's express recognition of a common law cause of action for a serious injury to a spouse or parent lies the implicit recognition of a parent's claim to loss of companionship for a similar injury to a child."
4. Consortium Damages for a Sibling
Although no Texas cases have addressed the issue of whether siblings may recover loss of consortium in non-fatal injury cases, the First Court of Appeals refused to allow the recovery of loss of consortium damages upon the death of a sibling. Williams v. Texaco Refining and Marketing, 868 S.W.2d 873 (Tex. App. -- Houston [1st Dist.] 1993, no writ). The Court noted that:
To the extent that the Texas Supreme Court has created a common law cause of action for loss of consortium, it has done so only as to spouses and children, and only when the loss is the result of an injury, rather than death.
Moreover, the Court in
Damages for loss of consortium are not required to be reasonably proportional to the damages for pecuniary loss. See, Id. An expert may testify as to the value of a plaintiff's damages or loss of consortium. In Celotex Corp. v. Tate, 797 S.W.2d 197, 202 (Tex. App. -- Corpus Christi 1990, no writ), the Corpus Christi Court of Appeals held that an economist could properly explain to the jury how to compute present dollar value of damages for lost affection based on hypothetical figures, but the expert was improperly permitted to suggest specific dollar amounts for the loss of the decedent's guidance and counsel. The Court noted that experts should be allowed to calculate specific dollar amounts for the jury only when they have special knowledge that the jurors themselves do not possess. Seale v. Winn Exploration Co., 732 S.W.2d 667 (Tex. App. - Corpus Christi 1987, writ denied)
1. Loss of Part of the Body
Texas courts have permitted separate jury submission, as a separate item of damages, for a loss of a part of the body. Of course, in such an instance, the cautionary instruction against a double recovery would be necessary. See para. III.A.4., supra, for such instruction. The following illustrate areas where Texas courts have recognized damages for the loss of a body part.
a. Loss of Teeth. In Houston Transit Co. v. Felder, 208 S.W.2d 880 (Tex. 1948), the Supreme Court approved the submission of "loss of teeth" as a separate element of damages. It should be noted that in that case this element was submitted in addition to disfigurement.
b. Loss of Hearing. In City of Houston v. Riggins, 568 S.W.2d 188 (Tex. Civ. App. - Tyler 1978, writ ref'd n.r.e.), the court approved the submission of this element of damages separately, along with physical impairment, with cautionary instructions to avoid overlap.
2. Loss of Mental/Intellectual Function
In Western Union Tel. Co. v. Tweed, 138 S.W. 1155 (Tex. Civ. App. - Dallas 1911), aff'd, 166 S.W. 696 (Tex. 1914), the plaintiff sustained catastrophic injuries, including brain damage, which gave rise to the question of whether the plaintiff could perceive pain and experience mental anguish. The court held that in such a case the loss of mental and intellectual function which precludes such "appreciation" is itself a separate element of damages. The court noted that "if plaintiff's mind was destroyed by reason of the injuries he received, such result, we think, would be an element of his damage, instead of mental suffering."
3. Damages for the Loss of Enjoyment of Life: Hedonic Damages
Loss of enjoyment of life damages, alsoknown as hedonic damages, compensate for the loss of the pleasures and rewards inherent in living. As opposed to pain and suffering damages, which compensate for the physical and mental discomfort caused by an injury, loss of emjoyment of life damages compensate for the limitations placed upon a person's life. See, T. Branch, Seeking Recovery for Loss of Enjoyment of Life, Trial (April 1994). As noted by the dissent in McDougald v. Garber, 536 N.E.2d 372, 377 (W.Y. 1989) (Titone, Jr., dissenting):
The capacity to enjoy life--by watching one's children grow, participating in recreational activities,and drinking in the many other pleasures life has to offer, is unquestionably an attribute of an ordinary healthy individual.
The court, in Sherrod v. Berry, 629 F.Supp. 159 (N.D. Ill. 1985) aff'd 827 F.2d 195 (7th Cir. 1987), first coined the term "hedonic damages" to describe the recovery of damages for the value of a deceased person's life. See, Blodgett, Hedonic Damages, 71 A.B.A. Jnl. 25 (February 1985). In . However, questions remain as to whether loss of enjoyment of life damages should be recovered as a distinct type of damaegs seaprate from pain and suffering. Id.
Texas courts have traditionally recognized loss of enjoyment of life as a factor in determining damages for pain and suffering. See, Luna v. Southern Pacific Transportation Co., 724 S.W.2d 383 (Tex. App. -- Texarmana 1987); Santa Rose Medical Center v. Robinson, 560 S. W.2d 751 (Tex. App. -- San Antonio 1977, no writMissour Pacific Railroad Co. v. Handley, 341 S.W.2d 203 (Tex. Civ. App. -- San Antonio 1960, no writ)
Since 1890, Texas courts have allowed plaintiffs witnessing an injury suffered by a third party to recover damages for mental anguish. Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993). Moreover, the injury to the bystander must have been foreseeable to the defendant. See, Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex. 1988). Forseeability in bystander cases hinges on the three-pronged Dillon test applied by the California Supreme Court in Dillon v. Legg 68 Cal.2d 728, 441 P.2d 912, 69 Cal. Reptr. 72 (1968). The three Dillon factors are: (1) the plaintiff’s location near the scene of the accident; (2) the shock resulted from direct emotional impact upon the plaintiff from a contemporaneous perception of the accident and (3) where the plaintiff and victim were closely related. Landreth v. Reed, 570 S.W.2d 46, 49 (Tex.App.-- Dallas, no writ).
This three-part test, however, is not inflexible, and is tempered with the caveat that each case must be evaluated on its own merits. See, Robinson v. Chiarello, 806 S.W.2d 304 (Tex. App. -- Fort Worth 1991, writ den'd); City of Austin v. Davis, supra.
The Texas Supreme Court limited bystander recovery in Edinburg Hospital Authority v. Trevino, 40 Tex. S. Ct. J. at 315, to exclude medical malpractice cases. The Court reasoned that the bystander’s inability to distinguish between medical malpractice and helpful medical treatment, as well as the physician’s primary duty to the patient, not the bystander prevents recovery of bystander damages in medical malpractice actions.
The following are illustrative of some cases in which bystander recovery of mental anguish damages has been allowed, together with an analysis of how the facts of each of these cases match the criteria of (1) proximity, (2) contemporaneous perception, and (3) relationship of the parties. Additionally, a summary of the physical manifestations noted in each case is discussed:
(1) Dave Snelling Lincoln-Mercury v. Simon, 508 S.W.2d 923 (Tex. Civ. App. - Houston [1st Dist.] 1974, no writ).
a. Proximity to scene: mother was in automobile with son who fell out of vehicle into path of following car.
b. What observed: mother observed son run over and was with him on way to hospital when he died.
c. Relationship: mother/son.
d. Physical manifestations/ injuries: traumatic depressive reaction.
(2) Covington v. Estate of Foster, 584 S.W.2d 726 (Tex. Civ. App. - Waco 1979, writ ref'd n.r.e.)Newman v. Minyard Food Stores, Inc., 601 S.W.2d 754 (Tex. Civ. App. - Dallas 1980), rev'd., 612 S.W.2d 198 (Tex. 1981)Bedgood v. Madalin, 589 S.W.2d 797 (Tex. Civ. App. - Corpus Christi 1979), rev'd, 600 S.W.2d 773 (Tex. 1980)Haught v. Maceluch, 681 F.2d 291 (5th Cir. 1982), rehearing denied., 685 F.2d 1385 (1982)
Apache Ready Mix Co. v. Creed, 653 S.W.2d 79 (Tex. App. - San Antonio 1983, writ dism'd).
a. Proximity to scene: mother in car with daughter (mother also injured in accident).
b. What observed: Following the impact, the mother saw blood on face of her child and observed crushed glass, then the mother lost consciousness and didn't see her daughter for ten days.
c. Relationship: mother/ minor daughter.
d. Physical manifestations/ injuries: difficulty concentrating; crying spells; nightmares; sleeplessness; apathy; no energy; depressive neurosis; delayed stress syndrome.
(8) Genzer v. City of Mission, 666 S.W.2d 116 (Tex. App. - Corpus Christi 1983, writ ref'd n.r.e.).
a. Proximity to scene: both grandparents and parents were involved and seriously injured in same explosion that killed the grandchild.
b. What observed: both grandparents and the father observed the injuries to the child but the mother was rendered unconscious and was apprised of the child's injuries upon regaining consciousness.
c. Relationship: grand-parents and parents/ minor child.
d. Physical manifestations/ injuries: The court did not discuss physical manifestations. Both the grandparents and parents seeking bystander recovery damages were themselves injured in the explosion.
(9) Dawson v. Garcia, 666 S.W.2d 254 (Tex. App. - Dallas 1984, no writ).
a. Proximity to scene: wife and children with their husband and father in the same car (wife and children also injured in accident).
b. What observed: The plaintiffs did not actually see or hear the injury or death of their husband and father, but they were in the same accident and were held to have had an experiential perception of the accident as they were injured in and survived the very same accident.
c. Relationship: wife and children/deceased husband and parent.
d. Physical manifestations/ injuries: This was not discussed in the opinion, as each of the plaintiffs was injured in the same accident.
[NOTE: Although this was a death case it was tried as a bystander case, and it is assumed that it was tried before Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983).
(10) Williams v. Steves Industries, Inc., 678 S.W.2d 205 (Tex. Civ. App. - Austin 1984), aff'd., 699 S.W.2d 570 (Tex. 1985).
a. Proximity to scene: mother in car with her two minor children (mother also injured in accident).
b. What observed: The mother was confused, semi-conscious, unconscious following the accident and defendant challenged whether she perceived the injuries.
c. Relationship: mother/ minor children.
d. Physical manifestations/ injuries: The court did not discuss any physical manifestations of mental anguish, but plaintiff, herself (the mother), was injured.
(11) City of Austin v. Davis, 693 S.W.2d 31 (Tex. Civ. App. - Austin 1985, writ ref'd n.r.e.).
a. Proximity to scene: father intensely involved in search for his son confined in a hospital and was present when his son's body was found at the bottom of an air shaft on the hospital premises.
b. What observed: Observed and participated in the search for his son and was present and observed the discovery of his son's body at the bottom of an air shaft.
c. Relationship: father/son.
d. Physical manifestations/ injuries: The appellate court noted that the parties had stipulated that the plaintiff suffered physical injury from emotional distress.
(12) In the California case of Ochoa v. Superior Court of Santa Clara County, 216 Cal.Rptr. 661 (Cal. 1985), the California Supreme Court held that a parent witnessing ongoing harm to a child, as distinguished from a sudden occurrence, can recover for negligent infliction of mental distress. The mother was with her son who died of bilateral pneumonia when his pain, fever, etc. went untreated in the county facility.
(13) In the recent case from the Corpus Christi Court of Appeals, Rodriguez v. Motor Express, Inc., 909 S.W.2d 521 (Tex.App.--Corpus Christi 1995), rev’d on other grounds, 925 S.W.2d 638 (Tex. 1996), the Supreme Court held that a cousin-in-law was not so closely related that he could pursue a bystander theory to recover damages. The Court based much of its reasoning on the three-part test in Freeman as well as Garcia v. San Antonio Housing Authority, 859 S.W.2d 78, 81 (Tex.App. -- San Antonio 1993, no writ). Garcia limited recovery to relatives residing in the same household or parents, siblings, children, and grandparents of the victim.
XII. DAMAGES FOR WRONGFUL DEATH
The Texas Wrongful Death Act, Tex. Civ. Prac. & Rem. Code Ann. § 71.002, provides that certain statutorily designated beneficiaries may recover their "actual damages" sustained as a result of a decedent's wrongful death.
The statutory beneficiaries are surviving parents, children and spouses. Brothers and sisters may not recover for the wrongful death of their siblings under the Texas Wrongful Death Act. Perez v. Central Power & Light Co., 27 S.W.2d 641 (Tex. Civ. App. -- San Antonio 1930, writ ref'd.). In Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985), the Texas Supreme Court, realizing that no logical reason existed for treating statutory beneficiaries under the Wrongful Death Act differently, held that children were entitled to recover loss of companionship and mental anguish damages resulting from the death of their parents. The court in Moore v. Lillebo, 727 S.W.2d 683 (Tex. 1986) that mental anguish damages were recoverable in wrongful death actions without the necessity of proving "physical manifestations" of the mental anguish.
A. Elements of Wrongful Death Damages
The elements of damages recoverable by parents for wrongful death are generally divided into four categories: (1) pecuniary loss; (2) loss of companionship and society; (3) mental anguish; and (4) loss of inheritance. These four kinds of damages were set out and discussed at length in the landmark wrongful death case Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986).
In Sanchez v. Schindler, Texas joined the majority of American jurisdictions to abolish the pecuniary loss rule, which required that a wrongful death beneficiary show pecuniary loss to recover. See Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex. 1986), citing Sanchez v. Schindler, 651 S.W.2d 249, 252-53 (Tex. 1983). Now, wrongful death beneficiaries may recover for loss of companionship and society, mental anguish, and loss of inheritance, in addition to, or even in the absence of, pecuniary loss. See Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986); see also State Bar of Texas, 3 Texas Pattern Jury Charges § 81 (1990).
The jury is also to be instructed, where such elements are submitted, that mental anguish, loss of society and companionship, loss of inheritance, or pecuniary loss are separate elements of recovery. Moore, 722 S.W.2d at 685; 3 Texas Pattern Jury Charges § 81.
1. Pecuniary Loss
"Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a monetary value that the parents, in reasonable probability, would have received from the child had he/she lived. See Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986); see also State Bar of Texas, 3 Texas Pattern Jury Charges § 81 (1990); El Paso Elec. Ry. Co. v. Benjamin, 202 S.W. 996, 998 (Tex.App.--El Paso 1918, writ dism’d); International & G. N. Ry. Co. v. McVey, 87 S.W. 328, 329 (Tex. 1905).
To support an award for pecuniary loss, the plaintiff beneficiaries must demonstrate through evidence the loss of support or services of their deceased family member.
Reasonable and necessary expenses for psychologic counseling, both past and future, may also be recovered as pecuniary losses suffered as the result of a wrongful death. City of Dallas v. Cox, 793 S.W.2d 701, 734 (Tex. App.--Dallas 1990, no writ).
Evidence of pecuniary loss should be specific. J. Hadley Edgar & James Sales, Texas Torts & Remedies § 86.03[2][iii][B], 86-46 (Supp. 1992). A jury's failure to award damages for pecuniary loss was found to be proper where the only evidence of pecuniary loss was the testimony of decedent's mother that her son "helped her when he could afford it," and that on the day of his death, he had given her $40.00. Seale v. Winn Exploration Co., 732 S.W.2d 667, 670 (Tex. App.--Corpus Christi 1987, writ denied).
2. Loss of Support or Services of a Parent
The minor child in a wrongful death suit is entitled to recover, as pecuniary damages, the amount the deceased parent would have probably contributed to his maintenance and support, and the reasonable value of the parent's nurture, care, education, moral, and mental training. Tex.Civ.Prac. & Rem. Code § 71.001-.011 (Vernon 1986); see State Bar of Texas, 3 Texas Pattern Jury Charges § 81.03 (1990); Moore v. Lillebo, 722 S.W.2d 693 (Tex. 1986); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985); Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983); Hope v. Seahorse, Inc., 651 F.Supp 976 (S.D.Tex. 1986).
The adult child in a wrongful death suit is entitled to recover, as pecuniary damages, the amount the deceased parent would have probably contributed to him, including education, advice, and counsel. Samford v. Duff, 483 S.W.2d 517, 528-529 (Tex. Civ. App.--Corpus Christi 1972, writ ref'd n.r.e.); State Bar of Texas, 3 Texas Pattern Jury Charges §§ 81.03A, 81.03B (State Bar of Texas 1990). If the adult child is physically or mentally challenged or handicapped, additional pecuniary damages which the deceased parent would have contributed to the child for his maintenance and support may be appropriate.
3. Loss of Support or Services of a Child
Pecuniary damages for a deceased child are considered the separate property of the spouse who suffers for the child's loss. Thus, if the negligence of one spouse contributed to the death of the child, damages for loss of pecuniary benefits to the non-negligent spouse is not subject to reduction for contributory negligence. See, e.g., Johnson v. Holly Farms of Texas, Inc., 731 S.W.2d 641, 646 (Tex. App.--Amarillo 1987, no writ).
A parent is entitled to recover the pecuniary value of the child's services until he would have reached majority (eighteen years). See State Bar of Texas, 3 Texas Pattern Jury Charges §§ 81.04A, 81.04B (1990). The theory behind allowing this recovery is that the earnings of the minor child are subject to the "joint management, control, and disposition of the parents." Tex. Fam. Code Ann. § 5.23 (Vernon Supp. 1990). The State Bar Committee which drafted the Pattern Jury Charges expresses no opinion as to whether this type of pecuniary loss should be awarded jointly to the parents, or to each parent separately, unless the parents are divorced or separated. 3 Texas Pattern Jury Charges § 81.04B; see Tex. Civ. Prac. & Rem. Code § 71.010(b)(Vernon 1986).
Evidence of a close mother-child relationship was held sufficient to support an inference that the child would have been of great financial assistance to his mother in her advanced years, or in the event of hardship. Mercy Hosp. of Laredo v. Rios, 776 S.W.2d 626, 633 (Tex. App.--San Antonio 1989, writ denied).
For the loss of an adult child, a parent is entitled to pecuniary damages of "care, maintenance, support, services, advice, counsel, and reasonable contributions" that, in reasonable probability, the parent would have received from the child had he lived. Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex. 1986); State Bar of Texas, 3 Texas Pattern Jury Charges §§ 81.05A, 81.05B (1990). Such pecuniary losses may include the monetary value of lost advice, counsel, and services of the child, such as in business decisions, family financial decisions, and personal difficulties. See Borak v. Bridge, 524 S.W.2d 773, 776 (Tex. Civ. App.--Corpus Christi 1975, writ ref'd n.r.e.); see also J. Hadley Edgar & James Sales, 4 Texas Torts & Remedies § 86.03[2][a], n. 64 (1993).
Evidence of lost care, maintenance, and support must be shown. The plaintiff may demonstrate lost care, maintenance, and support by evidence of the decedent's past history of regularly contributing to the support of his family.
For example, in Levinge Corp. v. Ledezma, there was evidence that since age 7, the decedent had worked to help support his family. 752 S.W.2d 641, 643 (Tex.App.--Houston [1st Dist.] 1988, no writ). He had always given a part or all of his earnings from his various jobs to his mother. Id. When he worked for a fruit store, he brought home fruit. Id. When he was 13 years old, he worked at a bakery and brought bread for the family. Id. As a houseboy at age 15, he gave his entire salary to his mother, and on occasion brought home food. Id. When he worked a beer delivery route, he brought his mother 20-25 pesos a week. Id. At age 18, when he sold snack foods to restaurants and bars, he contributed 2,000 pesos to his mother and brought home groceries. Id. When he worked in the United States, he sent his mother $300 per month, which was 45% of his income. Id.
Based on such evidence, and evidence from economists to calculate the loss of income, the court of appeals upheld an award of $215,000 to the decedent's mother for loss of support. Id. at 643-45.
4. Loss of Companionship and Society
Loss of society and companionship are elements of loss of consortium. Texas Dept. of Transp. v. Ramming, 861 S.W.2d 460, (Tex. App.-- Houston [14th Dist.] 1993, app. writ of error filed, citing Whittlesey v. Miller, 572 S.W.2d 665, 666 (Tex. 1978).
"Loss of society" is the loss of the positive benefits which flowed from the love, comfort, companionship, and society to the family by the decedent's being a part of the family. Moore v. Lillebo, 722 S.W.2d at 688; Levinge Corp., 752 S.W.2d at 646. "Loss of society asks, 'what positive benefits have been taken away from the beneficiaries by reason of the wrongful death.'" Moore, 722 S.W.2d at 688.
Loss of society was first recognized by the supreme court in Sanchez v. Schindler, a case which allowed parents to recover for the loss of companionship and society for the death of a minor child. 651 S.W.2d 249 (Tex. 1983). Later, in Cavnar v. Quality Control Parking, Inc., the court expanded the holding in Sanchez to declare that all wrongful death beneficiaries, surviving spouse, children, and parents -- even parents of deceased adult children -- have a cause of action for loss of society. 696 S.W.2d 549, 551 (Tex. 1985); see also Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635-36 (Tex. 1986).
The supreme court has held that loss of companionship and society is to be defined in the court's charge as the loss of positive benefits flowing from the love, comfort, companionship, and society the named plaintiff would, in reasonable probability, experience if the decedent lived.
In addition to lost financial contribution that the decedent spouse would have made, a surviving spouse is also entitled to recover for the value of lost services, advice, and counsel. See Page v. Scaramozi, 288 S.W.2d 909, 912 (Tex. Civ. App. -- San Antonio 1956, writ ref'd n.r.e.); State Bar of Texas, 3 Texas Pattern Jury Charges §§ 81.02A, 81.02B (1990).
As with mental anguish damages, the jury is instructed that in awarding damages for loss of companionship and society, it may consider:
(1) the relationship between the husband and wife, or parent and child;
(2) the living arrangements of the parties;
(3) any absence of the deceased from the beneficiary for extended periods;
(4) the harmony of family relations; and
(5) common interests and activities.
Moore, 722 S.W.2d at 688.
Thus, the evidence of the wrongful death beneficiary should concentrate on these elements.
Proof of loss of companionship and society may be established through the testimony of family members or other witnesses.
For example, in Moore v. Lillebo, the decedent's father testified that Paul had lived with his father during high school, and accompanied him to military duty stations in Europe. 722 S.W.2d at 687. He testified that Paul "was always helping us in anything we had to do." Paul and his father confided in each other, and talked about important decisions. Id. There was evidence that Paul had written to his father, expressing his love, and asked him to come to graduation from basic training because he wanted to make his father proud. Id.
The decedent's mother testified that she and Paul competed together in rifle competitions. Id. She taught Paul to cook, and he was cooperative with household chores. Id. Mother and son spent summers together at a lake house in Michigan, and enjoyed cooking together, and when apart, they exchanged recipes by mail. Id. He helped her with cooking, yardwork, and repairing the family car. Id.
Levinge Corp. v. Ledezma provides another example of proof of loss of companionship and society. 752 S.W.2d at 646. In Levinge, testimony from the decedent's parents and sister was the decedent was a generous young man who regularly brought home food, gifts, and school supplies for the family. 752 S.W.2d 646. The decedent always worked, gave money to his mother. Id. He paid for doctor bills and medicine for his siblings, and planned to purchase a house someday for his mother. Id. His mother testified that she loved him very much, and will never again have a child like him. Id. There was also testimony that the decedent was the one who organized the family get-togethers, unified the family, and was his parent's hope to escape poverty. Id. This testimony supported an award to the parents of $100,000 for loss of society. Id.
At least one court has held, in a wrongful death case, that nonpecuniary damages for loss of companionship and mental anguish need not be reasonably proportional to any damages awarded for pecuniary loss. Missouri Pac. Ry. Co. v. Lane, 720 S.W.2d 830, 833 (Tex. App.--Texarkana 1986, no writ).
a. Use of Expert Testimony
Expert opinion may also be used to assist the jury to measure damages for loss of society. In Guzman v. Guajardo, the plaintiff was assisted by the testimony of an economist, who testified as to the average income of members of the "helping professions, such as counselors or clergy, as some proof of the positive benefits which a supportive relationship provides, and as a guide to measure the value of nonpecuniary losses. 761 S.W.2d 506, 511-512 (Tex. App.--Corpus Christi 1988, writ denied). The economist assessed a dollar value for each plaintiff's loss of society with their son, by application of the average hourly rate of a professional counselor to the number of hours the decedent would have probably spent with each plaintiff during his normal life expectancy. Id.
5. Mental Anguish
Since Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983), a parent is entitled to recover damages for mental anguish experienced because of the death of a child. See also Levinge Corp. v. Ledezma, 752 S.W.2d 641, 646 (Tex. App.--Houston [1st Dist] 1988, no writ).
For wrongful death cases, "mental anguish" has been defined as an emotional response to the wrongful death of another. Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex. 1986); Levinge Corp. v. Ledezma, 752 S.W.2d 641, 646 (Tex. App.--Houston [1st Dist] 1988, no writ). Awards for mental anguish are to compensate the wrongful death beneficiary's pain, torment, and suffering which he experienced from the death of the family member. Moore, 722 S.W.2d at 688; Levinge, 752 S.W.2d at 646.
In a wrongful death case, mental anguish is concerned not with benefits which may have been lost, but with compensating the beneficiary for his harrowing experience resulting from the death of a loved one. Moore, 722 S.W.2d at 688. The supreme court has said that mental anguish damages ask about the negative effect of the death on the beneficiary: "what deleterious effect has the death . . . had upon the claimants?" Moore, 722 S.W.2d at 688.
At least one court has held that "grief and bereavement" are not separate elements of recovery for wrongful death, but are elements of "mental anguish." Whipple v. Deltscheff, 731 S.W.2d 700, 703 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.); see also Levinge Corp., 752 S.W.2d at 647 (Cohen, J., concurring).
However, another court has noted that a distinction can be made between a recovery for grief and bereavement and one of mental anguish, although the distinction is difficult. Missouri Pac. R. .R. Co. v. Dawson, 662 S.W.2d 740, 742-43 (Tex. App.--Corpus Christi 1983, writ ref'd n.r.e.). The First Court indicated it might uphold separate recoveries for "mental anguish" and "grief and bereavement." Levinge Corp. v. Ledezma, 752 S.W.2d 646-47. However, because the plaintiffs had not distinguished between "mental anguish" and "grief and bereavement" in the presentation of their case, the awards for past and future "grief and bereavement" were deleted. Id. However, note that one justice would not so hold. See Levinge Corp. v. Ledezma, 752 S.W.2d at 647 (Cohen, J., concurring).
The supreme court has held that mental anguish is to be defined in the court's charge, in a wrongful death case, as "the emotional pain, torment, and suffering that the named plaintiff would, in reasonable probability, experience from the death of the family member." Moore, 722 S.W.2d at 688; see also State Bar of Texas, 3 Texas Pattern Jury Charges § 81 (1990).
a. Proving Mental Anguish Damages in Wrongful Death
Proof of a close family relationship is evidence of mental anguish. See Johnson v. Holly Farms of Texas, Inc., 731 S.W.2d 641, 647 (Tex. App.--Amarillo 1987, no writ). Wrongful death beneficiaries do not have to establish psychic or physical detriment to recover for mental anguish. Whipple v. Deltscheff, 731 S.W.2d 700, 703 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). Testimony which establishes a bond of affection between parents and a child is sufficient to establish entitlement to mental anguish damages. Id.
The supreme court has held that proof of the family relationship constitutes some evidence that the parents of a decedent suffered mental anguish from the death of their son. Moore, 722 S.W.2d at 686. The supreme court criticized the opinion of the court of appeals, which had held there was no evidence of mental anguish because there was no testimony as to how the parents learned of their son's death, whether they attended the funeral, or what effect the loss of their child had on their lives. Id.
The supreme court quoted, with approval, the following language from the Eight Circuit's opinion in Connell v. Steel Haulers, Inc.:
We do not think that Arkansas law requires that parents of a deceased child necessarily make a public exhibition of their grief before or during trial . . . . We are not convinced that mental anguish necessarily manifests itself objectively to the world, nor do grief stricken parents need to offer evidence of physical symptoms such as sleeplessness, weight loss, nervousness, personality changes, and the like. Mental anguish represents a deep inner feeling of pain and hurt often borne in silence. We are satisfied from our reading of the Arkansas cases that parents, such as the Connells, are entitled to have the jury on the basis of the emotional impact suggested by the circumstances surrounding their loss. We are convinced that assessment of the resulting grief is a task for which juries have traditionally be considered well-suited, and in which they can be properly expected to draw upon their own experience and empathy.Id., quoting Connell v. Steel Haulers, Inc., 455 F.2d 688, 691 (8th Cir. 1972).
In short, in a wrongful death case, proof of the family relationship is, at the least, some evidence to support a verdict for mental anguish. Id. Family members are not deprived of their ability to recover for mental anguish, merely because they suffer quietly or are stoic. However, as a practical matter, the practitioner is cautioned that it is advisable to introduce evidence of the mental anguish of the family member, within the bounds of good taste.
In wrongful death cases, the jury is to be instructed that in awarding damages for mental anguish, it may consider:
(1) the relationship between the husband and wife, or parent and child;
(2) the living arrangements of the parties;
(3) any absence of the deceased from the beneficiary for extended periods;
(4) the harmony of family relations; and
(5) common interests and activities.
Moore, 722 S.W.2d at 688; see State Bar of Texas, 3 Texas Pattern Jury Charges § 81 (1990).
Thus, discovery of mental anguish evidence of the wrongful death beneficiary should concentrate on these elements.
Proof of mental anguish may be established through the testimony of family members or other witnesses. See, e.g., Levinge Corp. v. Ledezma, 752 S.W.2d at 646 (testimony by mother and father of their mental anguish due to son's death); Guzman v. Guajardo, 761 S.W.2d 506, 511-512 (Tex. App.--Corpus Christi 1988, writ denied)(testimony of family relationships by psychologist who briefly interviewed parents of decedent).
In wrongful death cases, it is no longer necessary to prove that mental anguish is physically manifested. Moore, 722 S.W.2d at 686. A physical manifestation of mental anguish is evidence of the extent of the mental anguish suffered, but it is no longer the only proof of mental anguish. Id.
However, as a practical matter, where physical manifestations of a beneficiary's suffering are present, it is important to demonstrate them to a jury.
For example, in Levinge Corp. v. Ledezma, there was testimony from the mother and decedent's sibling that the decedent's mother developed health problems soon after her son died. 752 S.W.2d at 646. Her health problems included pains in her head, legs, and left arm, high blood pressure, insomnia, and nervousness. Id. Mrs. Ledezma testified that not one day passes that she does not think about her son. Id. She testified that the entire family had been saddened by her son's death, to the point of making her ill. Id. She had not told her two youngest daughters of her son's death, because she knew that it would make them ill. Id.
Mrs. Ledezma and his daughter, Patricia, testified that Mr. Ledezma was sad, and cries over his son's death. Id. Mr. Ledezma testified that his health had been perfect before his son died, but that subsequently he had been ill and developed a drinking problem. Id. He testified that not a day goes by that he doesn't think about his dead son. Id.
The evidence of mental anguish for the death of a son, through testimony from the parents and a sibling, supported an award of $475,000 in mental anguish. Id.
A recent, extreme case serves as an example. In Harris County Hosp. Dist., family members testified to their close relationship. 872 S.W.2d 759 (Tex. App.--Houston [1st Dist.] 1993, writ denied). The family watched the decedent, conscious and alert, suffer a slow, painful death for sixteen days. Her body smelled like burned meat, and her skin came off when the bedsheet was lifted. Id. The court held the evidence sufficient to support the damage award. Id.
At least one court has held, in a wrongful death case, that nonpecuniary damages for loss of companionship and mental anguish need not be reasonably proportional to any damages awarded for pecuniary loss. Missouri Pac. Ry. Co. v. Lane, 720 S.W.2d 830, 833 (Tex. App.--Texarkana 1986, no writ).
The assessment of a mental anguish award is not subject to precise calculation, and is thus particularly within the province of the trier of fact. Levinge Corp. v. Ledezma, 752 S.W.2d 641, 646 (Tex. App.--Houston [1st Dist] 1988, no writ); Gulf States Util. v. Dryden, 735 S.W.2d 263, 268 (Tex. App.--Beaumont 1987, no writ). It is set aside or remitted only if the award was based upon passion, prejudice, or improper motive. Levinge, 752 S.W.2d at 646.
b. Mental Anguish for Wrongful Death of a Fetus
Although no cause of action exists for wrongful death for the loss of a fetus, a recent Texas Supreme Court case affirmed that a other may recover for mental anguish damages for the loss of the fetus as a part of the woman’s body. Edinburg Hospital Authority v. Trevino, 40 Tex. S. Ct. J. 313, 315. The court’s ruling in Edinburg supported the court’s previous decision in Krishnan v. Sepulveda, 916 S.W.2d 78, 481 (Tex. 1995) that allowed a mother to recover mental anguish damages in a personal injury action that has as one element the loss of the fetus.
6. Loss of Inheritance
"Loss of inheritance" means the earnings, if any, of the decedent in excess of the amount he would have used for the support of himself and his family, and which in reasonable probability would have been added to his estate and left to [legal beneficiary] at his natural death had [legal beneficiary] survived him. Yowell v. Piper Aircraft Corporation, 703 S.W.2d 630 (Tex. 1986).
B. Death of Statutory Beneficiary
If a statutory beneficiary under the Texas Wrongful Death Act dies before the case is concluded, the cause of action ceases to exist. That is, it is personal to the statutory beneficiary and does not survive and pass by inheritance, etc., to his or her heirs. See Carter v. Van Meter, 495 S.W.2d 583 (Tex. Civ. App. - Dallas 1973, no writ). Likewise, a statutory beneficiary may not assign his cause of action except under the provisions of Sec. 12.014, Property Code. Trinity County Lumber Co. v. Holt, 144 S.W. 1029 (Tex. Civ. App. - El Paso 1912, writ ref'd).
C. Effect of Remarriage
Remarriage does not prevent a surviving husband or wife from bringing a cause of action for death of his or her spouse. See, Bell Aerospace Corp. v. Anderson, 478 S.W.2d 191 (Tex. Civ. App. - El Paso 1972, writ ref'd n.r.e.). This is true because damages are established at the time of death. See, Richardson, supra. Most judges would instruct the jury, if requested, not to consider remarriage in mitigation of damages. See, Conway v. Chemical Leaman Tank Lines, Inc., 25 F.2d 927 (5th Cir. 1976). See also, Exxon v. Brecheen, 526 S.W.2d 519 (Tex. 1975). The statute allowing proof of remarriage permits proof only of a ceremonial marriage and not a common law marriage, extramarital relation or prospective marriage.
D. Joinder of Parties
All the statutory beneficiaries who are alive must be made parties, or one of the beneficiaries may bring the suit on behalf of all the statutory beneficiaries. See, Henwood v. Richardson, 163 S.W.2d 256 (Tex. Civ. App. - Texarkana 1942, writ ref'd w.o.m.). Non-joinder of all the beneficiaries is no longer fundamental error and will be waived if the defendant fails to object. See, Schafer v. Stevens, 352 S.W.2d 471 (Tex. Civ. App. - Dallas 1961, no writ). A beneficiary may execute a disclaimer of any interest in the suit and waive any claim under the Texas Wrongful Death Act and thereby avoid being joined as a beneficiary against his will. See, Rivera v. Chapa, 233 F. Supp. 428 (S.D. Tex. 1964).
E. Relationship Between Pecuniary Losses and Human Losses
There is no requirement that damages for mental anguish and loss of society and companionship (human losses) in a death case be reasonably proportional to damages for pecuniary loss. Missouri Pacific Railroad Co. v. Lane, 720 S.W.2d 830 (Tex. App. - Texarkana 1986, no writ).
XIII. SURVIVAL DAMAGES
The damages recoverable in a survival action consist of those for which the decedent could have recovered if he/she had lived, plus funeral expenses. See, Piper Aircraft Corp. v. Yowell, 674 S.W.2d 447 (Tex. App. - Fort Worth 1984), rev'd on other grounds, 703 S.W.2d 630 (Tex. 1986)Carrier v. State Farm Mutual Auto Ins. Co., 581 S.W.2d 797 (Tex. Civ. App. - El Paso 1979, writ ref'd n.r.e.)Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 634 (Tex. 1986).
With respect to funeral bills which are properly pursued by the estate, the funeral bills must be reasonable. See, Solis v. Garcia, 702 S.W.2d 668 (Tex. Civ. App. - Houston [14th Dist.] 1985, no writ); Tex & N.O.R. Co. v. Landrum, 264 S.W.2d 530 (Tex. Civ. App. - Beaumont 1954, writ ref'd n.r.e.).
When an injured party lives for a short time before dying, there is often a dispute over whether the decedent experienced conscious pain and suffering before his or her death. Because the evidence is usually sparse about the decedent's comprehension of the injuries or condition, any verdict is generally attacked as being excessive. In the recent case of Luna v. Southern Pacific Transportation Co., 724 S.W.2d 383 (Tex. 1987), the Supreme Court upheld a $50,000 award for the estate of a four year old child who lived for approximately two weeks after the accident and although he was completely paralyzed and severely unresponsive, there was evidence that he would open his eyes when his father visited him. The Supreme Court held that this constituted some evidence to support the jury's award.
The district court is still a proper forum for survival actions, not with-standing an estate proceeding in the probate court and notwithstanding the recent amendment to the Texas Probate Code § 5A(b) (Vernon Supp. 1986), which provides, "In actions by or against a personal representative, the statutory probate courts have concurrent jurisdiction with the district courts." Tarrant County Hospital Dist. v. Jones, 644 S.W.2d 191 (Tex. App. - Fort Worth 1984, no writ)Hofer v. Lavender, 679 S.W.2d 470 (Tex. 1984)Folsom Investments, Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex. Civ. App. - Fort Worth 1982, writ ref'd n.r.e.)Hofer, supra, held that this did not prevent the child's estate from recovering exemplary damages. Thus, exemplary damages survive to the parents if they are the beneficiaries of the estate.
A. PRENATAL INJURIES
A child, if born alive, is entitled to maintain an action for prenatal injuries, reversing a well-settled rule of tort law. Texas was the last jurisdiction to allow recovery for prenatal injuries. Leal v. C.C. Pitts Sand & Gravel Co., 419 S.W.2d 820 (Tex. 1967), overruling Magnolia Coca-Cola Bottling Co. v. Jordan, 78 S.W.2d 944 (Tex. Comm'n App. 1935).
The cause of action does not depend on the fetus being viable at the time of injury. A cause of action for prenatal injuries sustained at any prenatal stage exists as long as the child is born alive and survives. Delgado v. Yandell, 468 S.W.2d 475 (Tex. Civ. App. - Fort Worth 1971), aff'd, 471 S.W.2d 569 (Tex. 1971).
The Texas Courts have long held that “there is no wrongful death or survival cause of action for the death of a fetus.” Pietila v. Crites, 851 S.W.2d 185, 187 (Tex. 1993). But in Krishnan, M.D. v. Sepulveda, 916 S.W.2d 478 (Tex. 1995) the court allowed a patient to recover mental anguish as the result of a stillbirth. The Sepulvedas had alleged negligence in the care and treatment of the mother, not the care and treatment of the fetus. The Court further held that the father could not recover for the mental anguish as a result of the negligent care and treatment of his wife. In 1987, the Supreme Court of Texas, construing the Wrongful Death Act, held that a fetus' parents have no cause of action for the fetus' death in the absence of a subsequent live birth. See Witty v. American Gen. Capital Dist., Inc., 727 S.W.2d 503, 504-05 (Tex. 1987).
The supreme court has consistently affirmed this rule of law, even where the undisputed evidence has established that the fetus was in the third trimester, and would have been viable had it not been injured in the automobile collision. See Blackman v. Langford, 795 S.W.2d 742, 743 (Tex. 1990); see also Tarrant County Hosp. Dist. v. Lobdell, 726 S.W.2d 23, 23 (Tex. 1987). In the recent Edinburg Hospital Authority v. Trevino, 40 Tx.S.Ct. J. 313 (February 8, 1997), the supreme court again affirmed that no cause of action exists in Texas for wrongful death when the child is stillborn.
XIV. WRONGFUL LIFE CASES
Medical expenses were allowed as a recovery item where a child was born healthy after a negligently performed sterilization procedure, with the court denying recovery for loss of earnings and physical pain and mental anguish resulting from the birth. Garwood v. Locke, 552 S.W.2d 892 (Tex. Civ. App. - San Antonio 1977, writ ref'd n.r.e.).
A claim for the care and maintenance of a child born healthy following an unsuccessful sterilization operation was denied on public policy grounds, i.e., the joy, benefit and value to the parents of a healthy child exceeded as a matter of law the expense of raising the child. Terrell v. Garcia, 496 S.W.2d 124 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.), cert. den., 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed. 484, (1974).
The same result was reached when parents brought a claim for the expenses of raising a healthy child conceived following an unsuccessful sterilization operation in Sutkin v. Beck, 629 S.W.2d 131 (Tex. Civ. App. - Dallas 1982, writ ref'd n.r.e.).
In Crawford v. Kirk, 929 S.W.2d 633 (Tex.App. -- Texarkana, 1996) r’hrg overruled (Sept. 11, 1996), r'hrg overruled (Oct. 8, 1996), the Texarkana Court of Appeals held that the parents of a healthy child born after a negligently performed sterilization may recover only actual medical expenses from the failed sterilization procedure.
In the landmark case of Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984) the Texas Supreme Court squarely faced the issue of whether a cause of action exists on behalf of a child born with an impaired condition who is the result of a wrongful birth. In Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975)Hayes v. Hall, 488 S.W.2d 412 (Tex. 1972)LaPoint v. Shirley, 409 F.Supp. 118 (W.D. Tex. 1976)
The most dramatic form of recovery can be the imposition of punitive or exemplary damages on the defendant. The United States Supreme Court has stated that punitive damages are available under the common law for conduct which manifests "reckless or callous disregard" for the rights of others. Smith v. Wade, 461 U.S. 30, 51, 103 S.Ct. 1625 (1983). While it is an intentional act and not an intent to injure that is required, reckless disregard of the serious consequences of an act will also allow an award of punitive damages. Exemplary damages refers to an amount that the jury awards as an example to others and as a penalty in addition to any actual damages. Carnation Co. v. Borner, 610 S.W.2d 450, 454 (Tex. 1980).
Although some individuals and corporations raised constitutional arguments against the award of punitive damages, these were dispelled in Browning-Ferris Industries v. Kelco Disposal, Inc., 109 S.Ct. 2909 (1989). Texas jurisprudence has predominantly justified the imposition of punitive damages for four reasons: the deterrence of future conduct in both the wrongdoer and others, the punishment of the wrongdoer, the protection of society and compensation. First National Bank of Kerrville v. Hackworth, 673 S.W.2d 218 (Tex. App. -- San Antonio 1984, no writ); Pace v. State, 650 S.W.2d 64, 65 (Tex. 1983); Hofer v. Lavender, 679 S.W.2d 470 (Tex. 1984) (“Exemplary damages unquestionably serve to punish the offender....”); Aetna Casualty & Surety Co.v. Joseph, 769 S.W.2d 603 (Tex. App. -- Dallas 1989, no writ) (exemplary damages dependent on the rules of just punishment rather than fair compensation); K-Mart Corp. Store no. 7441 v. Trotti, 677 S.W.2d 632 (Tex. App. -- Houston [1st Dist.] 1984, writ denied at 686 S.W.2d 593 (Tex. 1984) (“Exemplary damages exist to promote the protection of an important public interest....”); Anderson v. Trent, 685 S.W.2d 712 (Tex. App.. -- Dallas 1985, writ ref'd n.r.e.) (“paramount purpose for awarding exemplary damages not to compensate the plaintiff.”)
A. AUTHORITY FOR THE AWARD OF PUNITIVE DAMAGES
The award of punitive damages is recognized in the common law for the purposes discussed above, the Texas Constitution and the Texas Civil Practices and Remedies Code.
Article 16 § 26 of the Texas Constitution provides that every person, corporation or company that commits homicide through “willful act . . . omission, or gross neglect” will be responsible for exemplary damages to the surviving memebers of the decedent.
The Texas Legislature amended Chapter 41 of the Texas Civil Practices and Remedies Code on exemplary damages. Changes apply to causes of action accruing after September 1, 1995.
Under § 41.001(5) exemplary damages is defined as "any damages awarded a penalty, or by way of punishment. 'Exemplary damages' includes punitive damages." Tex. Civ. Prac, & Rem. Code § 41.001(3) (Vernon Supp. 1990).
Of particular significance are three reforms of Chapter 41: (1) it eliminates “gross negligence” with a “malice” standard which has been redefined in Section 41.001; (2) it elevates the evidentiary standard from “preponderance of the evidence” to “clear and convincing evidence” (Sections 41.003 and 41.004); and (3) limits or caps the amount of exemplary damages (including those awarded for intentional acts) which may be recovered to two times economic losses, plus up to $750,000 of non-economic losses (Section 41.008). Tex. Civ. Prac. & Rem. Code, Ch. 41 (Vernon Supp. 1996).
In addition, under Tort Reform II, a court may only award exemplary damages against a defendant for the criminal act of another where one of four circumstances is present:
(1) the criminal act was committed by an employee of the defendant;
(2) the act was committed at a location where the defendant was maintaining a common nuisance covered by Chapter 125 of the Remedies Code (prostitution, gambling, reckless discharge of firearm, or delivery of controlled substances); or
(3) where there was a principal/agent relationship between the actor and the defendant, the act was authorized or ratified by the principal, the actor was unfit for hiring by the principal, or was employed in a managerial capacity. Tex. Civ. Prac. & Rem. Code §41.005 (Vernon Supp. 1996).
Prejudgment interest is not availabe on an award of exemplary damages. Id., § 41.006; Scurlock Oil Co. v. Smithwick, 787 S.W.2d 560 (Tex. App. -- Corpus Christi 1990, no writ).
B. THE ALAMO FACTORS
No set ratio of punitive or exemplary damages to actual damages exists in Texas. Such damages must, however, be "reasonably proportioned to actual damages." Alamo National Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981); Victoria Bank & Trust Co. v. Brady, 779 S.W.2d 893 (Tex.App. -- Corpus Christi 1989, no writ); Corporate Wings, Inc. v. King, 767 S.W.2d 485 (Tex. App. -- Dallas, 1989, no writ).
In determining the reasonableness of an award of exemplary or punitive damages, the Texas Supreme Court has provided the following Alamo factors for consideration which are contained in PJC §80.06. In deciding whether the defendant has been grossly negligent, the jury must consider:
(1) The nature of the wrong.
(2) The character of the conduct involved.
(3) The degree of culpability of the wrongdoer.
(4) The situation and sensibilities of the parties concerned.
(5) The extent to which such conduct offends a public sense of justice and propriety.
Alamo National Bank, 616 S.W.2d at 910. See also, John Deere Co. v. May, 773 S.W.2d 369 (Tex. App. -- Waco 1989, writ denied); Paramount National Life Insurance Co. v. Williams, 772 S.W.2d 255 (Tex. App. -- Houston [14th Dist.] 1989, writ denied). Additionally courts have considered factors such as (1) the net worth of the defendant - Lunsford v. Morris, 746 S.W. 2d 471 (Tex. 1988); (2) the frequency of the wrongs committed - State Farm Mutual Automobile Insurance Co. v. Zubiate, 808 S.W.2d 590, 604 (Tex.App. -- El Paso 1991, writ denied); see also Moriel, 879 S.W.2d at 27 n. 22; (3) compensation for inconvenience and attorneys fees - Hofer v. Lavendar, 679 S.W.2d 470, 474 (Tex. 1984); and (4) the size of the award needed to deter similar wrongs in the future - Zubiate, 808 S.W.2d at 604; see also Moriel, 879 S.W.2d at 27. PJC §80.06 must be conditioned on an affirmative finding to a question on gross negligence or on another finding that would justify exemplary damages. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003 (Vernon Supp. 1994).
The Corpus Christi Court of Appeals confronted the reasonableness of exemplary damages awarded by a jury that had determined a bank acted with a degree of deception and malice which harmed the plaintiff's business. In Alamo factors to affirm an award of damages in a 4.4 to 1.0 ratio. Relying on these factors as indications of reasonable procedure, the court further dispelled arguments of excessiveness based on the Eighth Amendment to the United States Constitution, the excessive fines provision of the Texas Constitution article I § 13 and due process considerations.
Where there is no set ratio of exemplary to actual damages, courts generally are guided by the facts of the individual case. In Tatum v. Preston Carter Co., 702 S.W.2d 186 (Tex. 1986), the Supreme Court reversed an appellate court's alteration of exemplary damages purposely reduced in exact proportion to a reduction in actual damages. In determining that the standard applied by the appellate court to assess the reasonableness of the exemplary damage award was erroneous, the Supreme Court stated that:
The reasonable proportion rule does not standing alone, serve to fix a particular ratio. Its function is served by consideration of the Tatus, 7072 S.W.2d at 188.
Under § 41.008 of the Texas Civil Practice & Remedies Code, however, the recovery of exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: two times the amount of economic damages, plus an amount equal to any non-economic damages found by the jury, not to exceed $750,000; or $200,000. It should be noted, however, that § 41.008 does not apply to exemplary damages of the conduct was committed knowingly or intentionally. Id. at § 41.008. Moreover, § 41.002 of the Texas Remedies Code, exempts certain listed actions from the § 41.008 damage limits. Id. at § 41.002.
A recent U.S. Supreme Court case considered whether a grossly excessive award of punitive damages could be a violation of constitutional Due Process under the Federal Constitution. The Court declined, however, to put a limit on the ratio by saying it was “not prepared to draw a bright line marking the limits of a constitutionally acceptable punitive damages award.” Id. Instead, the Court listed three factors to assist courts in deciding how much is too much: (1) the “degree of reprehensibility” of the defendant’s conduct; (2) the ratio between the punitive damages and the actual damages; and (3) the difference between the punitive damages and penalties provided in “comparable cases.” 64 U.S.L.W. 4339-42.
In a recent truck collision case, the Texarkana Court recently considered the legal sufficiency of evidence of gross negligence to support a jury finding of $1 million in exemplaries, the excessiveness of the award, and the excessiveness of the ad litem’s fee. Dalworth Trucking Co. v. Bulen, 1996 WL 194944 (Tex.App.--Texarkana 1996, n.w.h.). The court upheld the exemplaries award; however, it reduced and modified the ad litem’s fee from $100,000 to $40,000.
C. THE NECESSITY OF ACTUAL DAMAGES
Common law recovery dictates that the trial court must find actual damages before the plaintiff can be awarded punitive damages. Such damages are not recoverable in the absence of proof of a distinct tort. Nabours v. Longview Savings and Loan Assoc., 700 S.W. 2d 901 (Tex. 1985).
Punitive damages must be contingent on a finding of actual damages since actual damage is a necessary element of the underlying tort upon which the punitive damages are to be based.
Several exceptions to the actual damage requirement may exist, particularly in Worker's Compensation Act actions. See, e.g., Azar Nut Co. v. Caille, 734 S.W.2d 667 (Tex. 1987)International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963) (emphasis added). Accord Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980)Grider v.Boston Co, Inc., 773 S.W.2d 338 (Tex. App. -- Dallas 1989, writ denied).
D. GROSS NEGLIGENCE
In Transportation Ins. Co. v. Moriel, 37 Tex. S.Ct. Journal 883 (June 11, 1994)Transportation Ins. Co. v. Moriel, supra, the Texas Supreme Court addressed the issue of how Texas Courts should apply the definition of gross negligence from Moriel, Juan Moriel, an employee of Cashway Building Materials, was injured when a stack of computer tops fell on him. He was hospitalized for twelve days, and his h ospitalization costs were paid by Cashways worker's compensation carrier, Transportation Insurance Co. After being released from the hospital, however, Moriel continued to suffer apparent nerve damage to one leg and sexual dysfunction. Moriel requested the independent adjusting company handling Moriel's claim on behalf of Transportation to authorize payment for more extensive testing. Ultimately, Moriel sued Transportation f or bad faith, claiming that Transportation unreasonably delayed in paying the various medical care providers' bills for periods up to two years from the time of presentment. At trial of the bad faith claim, the jury found that Transportation delayed paying the medical bills without a reasonable basis, that it knew or should have known that it had no reasonable basis to delay payment,and that it acted "with heedless and reckless disregard" of Moriel's rights. The jury awarded Moriel $1,000.00 in actual damages, excluding mental anguish damages, $100,000.00 in mental anguish damages, and $1,000,000.00 in punitive damages. The Court of Appeals affirmed.
The Supreme Court in an attempt to clarify the standards governing the imposition of punitive damages in the context of bad faith insurance litigation, addressed the issue of how Texas Courts should apply the definition of gross negligence from Alexander, 868 S.W.2d 328 (Tex. 1993), the Texas Supreme Court observed that the two recognized tests for gross negligence in American jurisprudence: “entire want of care” and “conscious indifference.” The court stated that the entire want of care test focuses on the objective nature of defendant's conduct while the conscious indifference test focuses on the defendant's mental state. Id. The court emphasized that the subjective conscious indifference element distinguishes gross negligence from ordinary negligence. Moreover, the court emphasized that gross negligence requires more than conscious indifference to an objectively probable risk. Instead, to support a finding of gross negligence, the defendant must have behaved with conscious indifference to an "extreme risk".
In Moriel, the Supreme Court elaborated on the meaning of "extreme risk of harm". The Court stated that subjectively, the defendant must have actual awareness of the extreme risk created by his or her conduct. An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent. Only if the defendant's acts or omissions are unjustifiable and likely to cause serious harm can they be grossly negligent.
The test for determining whether an act or omission involves extreme risk or peril requires examination of the events and circumstances from the viewpoint of the defendant at the time the event occurred, without viewing the matters in hindsight. Furthermore, the court held that punitive damages are not appropriate when viewed prospectively and without the benefit of hindsight. In essence, the Moriel decision makes punitive damages much more difficult for a plaintiff to attain.
E. BIFURCATION
The Supreme Court in
Amarillo Nat'l Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981)Pool v. Ford Motor Co.., 715 S.W.2d 629 (Tex. 1986). In Id. In
In Ellis County State Bank, et al. v. Keever, 37 Tex. S.Ct. J. 783 (May 11, 1994), the Texas Supreme Court held that the courts of appeal must apply
Currently at least three rules exist by which the reckless or wanton acts of an emplyoee may be attributed to his employer: (1) the scope of employment rule; (2)the Restatement rules; and (3) the complicity rule.
Texas generally follows the guidelines provided by the Restatement rules. Both the Restatement (Second) of Torts and the Restatement (Second) of Agency provide that punitive damages can properly be awarded against a master or other principal because of the act of an agent if, but only if: (a) The principal authorized the doing and the manner of the act, or (b) The agent was unfit and the principal was reckless in employing him, or (c) The agent was employed in a managerial capacity and was acting in th scope of his employment, or (d) The principal or a managerial agent of the principal ratified or approved the act. Restatement (Second) of Torts § 909 (1979); Restatement (Second) of Agency § 217C (1958). These rules were reiterated in the much cited Texas Supreme Court cases of King v. McGuff, 234 S.W.2d 403 (Tex. 1950) and Fisher v. Carousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967).
The San AntonioCourt of Appeals has relied on these rules to uphold a jury finding of punitive damages in favor of a tenant injured in a gas explosion. In Brentwood Financial Corp. v. Lamprecht, 736 S.W.2d 836 (Tex.App. -- San Antonio 1987, writ ref'd n.r.e.)., evidence demonstrating that a resident manager of an apartment building accepted complaints and collected rents from the tenants was sufficient grounds to hold the employing management company liable for her gross negligence in failing to notify the gas company or the city of complaints of gas odors.
An award of exemplary damages is not subject to reduction by the amount of contributory negligence attributed to the plaintiff pursuant to the comparative responsibility or comparative negligence statutes. Tex. Civ. Prac. & Rem. Code Ann. § 33.002(a) (Vernon Supp. 1994); see also,
A. OCCUPATIONAL DISEASES & TIME OF INJURY
In cases involving occupational diseases that do not immediately result in disability or death, it is unclear whether an injury occurs when the person is exposed to the toxic substance (the "time of last exposure" theory) or when the disease actually manifests itself (the "date of manifestation" theory). See Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1288-89 (9th Cir. 1983), cert. den., 466 U.S. 937, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984). Under certain statutory causes of action it has been legislatively determined when an injury occurs. Many states have adopted statutes of repose that limit the bringing of the cause of action if it is not brought within a certain period of time. In some states different statutes of repose apply to different toxic materials such as in Oregon, where there is one statute for asbestos plaintiffs and another for Dalcon Shield plaintiffs. There is much confusion, however, in common law causes of action on the issue of when an injury will be deemed to have occurred. It certainly becomes important with regard to the statute of limitations, insurance coverage (who was the insurer when it occurred), whether a claim for mental anguish can be supported on a simple negligence theory (i.e., has there been an "injury" so as to support a claim for mental anguish). It is suggested that in unraveling these issues, we lawyers must occasionally look to scientific evidence to determine exactly when an injury occurs. There is developing a large body of scientific information with respect to asbestos, and in that connection it is becoming very shortly (within minutes to hours) after asbestos fibers are deposited in the lungs. All asbestos-related diseases, whether benign or malignant, are characterized by relentless progression. Lung injury is produced by at least three separate mechanisms:
1. Mechanical Injury
This is produced by direct penetration of the fibers from the alveolar septa and capillaries. Such injury has been within 5 hours after a short period of asbestos exposure. Mechanical injury to the pleura occurs when fibers penetrate the pleura lining the exterior of the lungs.
2. Chemical Injury
This form of injury occurs when certain cells in the lung secrete toxic enzymes and other digestive ferments, causing lung damage. The cells responsible for this process are called "alveolar macrophages." When asbestos fibers reach the lungs, they are rapidly engulfed by alveolar macrophages. As a consequence of becoming "activated," they release large amounts of digestive enzymes into the surrounding tissues. This produces further injury in the lungs.
3. Immunologic Injury
The immune system is composed of certain white blood corpuscles known as "lymphocytes." These cells are responsible for making antibodies and for protecting the body against microbes (e.g., viruses and bacteria) and against cancer. Following asbestos exposure, the immune system becomes overactive and additional injury is caused to the lungs. At a later stage, when the immune system breaks down, cancer may develop.
From the analysis described above one could argue that the injury occurred at the time of inhalation of asbestos fibers, that is, at the time of exposure. The scientific knowledge about the progression of asbestos has led one judge to rule that there is a legitimate justification for distinguishing between asbestos claimants and other types of claimants because of the nature of the asbestos-related diseases, and in that connection wrote:
It will simply be noted that among the many factors which place asbestos-related injuries in a class by themselves, it is known that asbestos-related diseases are not dependent upon repeated inhalations or exposures, but upon the presence of the fiber in the lungs from potentially one initial exposure.
Pottratz v. Davis, 588 F.Supp. 949 (D.C., Md. 1984); Mansfield, Asbestos: The Cases and the Insurance Problems, 15 The Forum (ABA) 860, 861 (1980). There is usually a long period of latency of up to more than 30 years before onset of the diseases. Fibreboard Paper Products Corp. v. Borel, 493 F.2d 1076, 1083-5 (5th Cir. 1973), cert. den., 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974).
The Sixth Circuit Court of Appeals, in INA v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980), held that under Illinois and New Jersey laws governing interpretation of products liability insurance policies issued by various insurers of asbestos manufacturers, the term "bodily injury" as universally used in the policies providing coverage for various time periods would be construed to include tissue damage taking place upon inhalation of asbestos. Thus, the court adopted the "exposure theory" as opposed to the "manifestation theory" in determining which insurers would be obligated to defend suits brought for asbestos-related diseases against various manufacturers.
Those who advocate the exposure theory of "bodily injury" argue that when asbestosis or cancer manifests has nothing to do with when the bodily injury took place, relying on medical testimony that establishes that tissue damage starts to occur shortly after the initial inhalation of asbestos fibers and that the tissue damage worsens as the victim breathes in more and more asbestos fibers. Thus, the argument under the exposure theory is that the disease, when it is finally contracted, is simply a series of continuing injuries to the body which accumulate to cause death or disability (sort of a "continuing tort" theory). To strengthen the exposure theory is the proposition that when a disease such as asbestos finally manifests itself, no doctor will say that it suddenly occurred when it was discovered or manifested, but rather it was progressively leading up to the point where it finally manifested itself.
The Fifth Circuit, in Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir. 1981) adopted the exposure theory, noting that "there was medical evidence that each introduction of fibers into Porter's lungs was 'bodily injury,' cumulatively and progressively more harmful to the victim.
B. ENHANCED RISK OF CONTRACTING DISEASE AND EMOTIONAL DISTRESS DAMAGES
In this age of toxic tort, certainly including asbestos exposure, the question has arisen whether there is a cause of action in those cases where plaintiffs have been exposed to some sort of toxic chemical or material, have not yet contracted any disease, but who nonetheless are now in a class of people who have an enhanced risk of mental anguish and suffering in connection therewith. This specific claim was made in New Jersey in Ayres v. Township of Jackson, 461 A.2d 184 (N.J.Sup.Ct. 1983). The New Jersey court held that as long as the risk exposure remains within the realm of speculation, that is, no proof by reasonable medical probability that any of the plaintiffs would suffer from that specific disease in the future, it cannot be the basis of a claim of injury.
The Fifth Circuit Court of Appeals, in the recent Texas case, Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir. 1985) held that there was no cause of action for enhanced risk of development of cancer and mesothelioma where there was no medical proof that the plaintiff was probably going to develop those diseases. However, the court held that the plaintiff could recover damages for his mental anguish arising from fear of development of such diseases, even though their actual development was not medically probable, saying:
Under Texas law he is entitled to compensation for mental anguish proximately caused by his asbestos exposure, even if such distress arises from fear of diseases that are a substantial concern but not medically probable. Johnson v. Armstrong Cork Co., 645 F.Supp. 764 (W.D.La. 1986)Lavelle v. Owens-Corning Fiberglass Corp., 507 N.E.2d 476 (Ohio Com. Pl. 1987)Ayres, supra, which the court termed "cancerphobia." Plaintiffs sought to recover for the emotional distress suffered by them as a result of being exposed to cancer-causing chemicals in their water. The court pointed out that in order for a claim of "cancerphobia" to be compensable, evidence must be presented to support a finding that emotional injury as evidenced by substantial bodily injury or sickness has resulted from knowledge that plaintiffs have ingested contaminants. The court sent the case back for trial and development of the evidence on the issue of whether there was an "impact" sufficient to support a claim of emotional distress. Specifically, the court wanted to know:
(a) Was it reasonably foreseeable on the part of the township that their negligence in permitting contaminants to escape would cause the type of fear experienced by plaintiffs?
(b) What is the nature of the impact to plaintiffs' body caused by the ingestion of these contaminants?
(c) Are the emotional injuries complained of by plaintiffs sufficiently severe to be compensable under present case law?
In a recently published opinion, the San Antonio Court of Appeals held that without proof of actual exposure to HIV or AIDS, the fear of contracting HIV or AIDS is, as a matter of law, unreasonable and will not support a finding of damages. Drury v. Baptist Memorial Hospital System, 933 S.W.2d 668 (Tex.App.--San Antonio 1996).
C. MEDICAL SURVEILLANCE DAMAGES
Finally, in Herber v. Johns-Manville Corp., 785 F.2d 79 (3rd Cir. 1986)
1. Prejudgment Interest
Prejudgment interest is additional compensation allowed by law for lost use of money during the lapse of time between accrual of claim and the date of judgment.
In
The statute does not define the word "claim" nor does not indicate what information must be included in the claim. The courts have looked to the ordinary meaning which has been interpreted to mean a demand for compensation or an assertion of a right to be paid. Although an accident report notifies a defendant that an accident had occurred, and that a person may have been injured, it was not considered notice of a demand for payment or compensation and is not notice of a “claim.” Robinson v. Brice, 894 S.W.2d 525 (Tex. App. - Austin 1995). A simple letter containing sufficient information to begin considering the injured parties complaint is sufficient to constitute notice. Bevers v. Soule, 909 S.W.2d 599 (Tex. App. - Fort Worth 1995).
A Plaintiff is not require to demand an exact amount or list every element of damage claimed in order to be entitled to receive prejudgment interest. Robinson v. Brice, 894 S.W.2d 525
3. Serves as Additional Damages
Prejudgment interest serves as an additional damage for the loss of use of money due as damages during the period between the accrual of the claim and the date of judgment. A prevailing plaintiff is entitled to recover prejudgment interest as a matter of law on damages that have accrued by the time of judgment. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552-555 (Tex.1985). LaCoure v. LaCoure, 820 S.W.2d 228 (Tex. App. - El Paso 1991).
The purpose of prejudgment interest is to compensate the injured party for the loss of use of money. It cannot run before the cause of action accrues. Prudential Ins. v. Jefferson Associates, 839 S.W.2d 866 (Tex.App.-Austin 1992, writ granted). Sample v. Freeman, 873 S.W.2d 385 (Tex. App. - Fort Worth 1993).
It is important to note that there are two ways in which the court is required by statute to calculate the prejudgment interest. Prejudgment interest in personal injury cases accrues on the amount of the judgment during the period beginning on the 180th day after the date the defendant receives written notice of a claim or on the day the suit is filed, whichever occurs first, and ending on the day preceding the date judgment is rendered. Caterpillar,Inc. v. Shears, 881 S.W.2d 923 (Tex. App. - Corpus Christi 1994), rehearing overruled, error granted, reversed 911 S.W.2d 379. Guerrero v. Sanders, 846 S.W.2d 354 (Tex. App. - Fort Worth 1992), rehearing overruled, opinion withdrawn in part.
In a case filed post-Cavnar, the Court decided in Owens-Illinois, Inc. v. Estate of O. Burt, 897 S.W.2d 765 (Tex. 1995) that prejudgment interest began to run in a latent injury asbestos case six months after the date defendant receives notice of the claim or the date the lawsuit is filed, whichever comes first.
4. Pleading
There are two legal sources for the award of prejudgment interest: statutory and equitable. It is not necessary for a litigant to specifically plead for prejudgment interest as he is entitled to it by statute. Dunn v. Menassen, 913 S.W.2d 621 (Tex. App.-Corpus Christi 1995).
If the type of claim is not one that is specifically stated in section 6(a), then it must be specifically plead. The courts have been liberal in construing what is an “injury” under the headings in section 6(a). In Sample v. Freeman, 873 S.W.2d 470 (Tex. App.-Beaumont 1994), the court held that a legal malpractice claim was a personal injury for which the plaintiff was entitled to prejudgment interest under section 6(a).
A simple prayer for interest generally provides fair notice of the claim for prejudgment interest. Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 96 (Tex.1976); Coker v. Burghardt, 833 S.W.2d 306, 311 (Tex. App.--Dallas 1992, writ denied); Benjamin Franklin Savings Association v. Kotrla, 751 S.W.2d 218, 224 (Tex. App.--Houston [14th Dist.] 1988, no writ); Brown v. Starrett, 684 S.W.2d 145, 147 (Tex. App.--Corpus Christi 1984, no writ); Federal Pacific Electric Co. v. Woodend, 735 S.W.2d 887, 896 (Tex. App.--Fort Worth 1987, no writ) Texas Commerce Bank Reagan Through Texas Commerce Bank Nat. Ass'n v. Lebco Constructors, Inc., 865 S.W.2d 68 (Tex. App.-Corpus Christi 1993).
5. Tolling
The party seeking to toll prejudgment interest has an obligation to put its request to the court. Moreover, both the party seeking prejudgment interest and the party seeking to toll it must provide the court with evidence to establish the proper amount of the award. This evidence may be presented at any time during the court's plenary power. Quality Beverage, Inc. V. Medina, 858 S.W.2d 8 (Tex. App. - Houston (1st Dist) 1993). The award of prejudgment interest during periods of delay in a case is discretionary with the trial court. In the absence of any exceptional circumstances warranting the denial of prejudgment interest, a trial court does not abuse its discretion in awarding prejudgment interest accruing six months from the date of injury. Southwest Airlines v. Jaeger, 867 S.W.2d 824 (Tex. App. - El Paso 1993), rehearing overruled, error denied, rehearing of writ of error overruled. denied).
An agreed motion for continuance cannot be used against the Plaintiff for the purpose of delay. In Hughes v. Thrash, 832 S.W.2d 779 (Tex. App. - Houston (1st Dist.) 1992), the court refused to toll the prejudgment interest because both parties had agreed to the continuance.
6. Future Damages
A plaintiff is entitled to prejudgment interest on future damages. This interest begins to accrue on date suit is filed. Hughes v. Thrash, 832 S.W.2d 779 (App. 1 Dist. 1992). C&H Nationwide, Inc. V. Thompson, 903 S.W.2d 315 (Tex. 1994).
7. Exemplary Damages
Section 41.006 of the Texas Civil Practices and Remedies Code states: "Prejudgment interest may not be assessed or recovered on an award of exemplary damages." Prejudgment interest should be calculated on the amount of actual damages, and should not be added on the punitive damages. Vail v. Texas Farm Bureau Mut. Ins. Co., 754 S.W.2d at 137; St. Paul Surplus Lines Ins. Co., Inc. v. Dal-Worth Tank Co., Inc., 917 S.W.2d 29 (Tex. App.-Amarillo 1995)
E. POST-JUDGMENT INTEREST
Post-judgment interest guidelines are set forth in § 2 of article 5069-1.05. Tex. Rev.Civ. Stat. Ann. art. 5069-1.05 § 2 (Vernon Supp. 1990).
(1) All judgments, together with taxable court costs, are compounded annually at the rate published by the consumer credit commissioner in the Texas Register.
(2) The rate of interest so computed isnot to exceed 20% nor fall below 10%.
(3) If a motion for extension of time to file a brief is filed by plaintiff and granted, interest does not accrue for the period of that extension.
1. Postjudgment Interest is Mandatory
Post-judgment interest is mandatory and is recoverable whether or not specifically awarded in the judgment. El Universal, Compania Periodistica Nacional, S.A. de C.V. v. Phoenician Imports, Inc., 802 S.W.2d 799, 804 (Tex. App.--Corpus Christi 1990, writ denied); Golden v. Murphy, 611 S.W.2d 914, 916 (Tex. Civ. App.--Houston [14th Dist.] 1981, no writ); Crenshaw v. Swenson, 611 S.W.2d 886, 892 (Tex. Civ. App.--Austin 1980, writ ref'd n.r.e.) (on rehearing). Staff Industries, Inc. V. Hallmark Contracting, Inc., 846 S.W.2d 542 (App. 13 Dist. 1993), rehearing overruled. National Union Fire ins. Co. Of Pittsburgh, Pa. v. Wyar, 821 S.W.2d 291 (App. 1 Dist. 1991).
F. GOVERNMENTAL CAPS
Interest awarded is subject to the limitations set forth in the Tort Clamis Act. The Tort Claims Act precludes award of prejudgment interest when damages found by jury exceeded $100,000 statutory cap. University of Texas at Austin v. Hinton, 822 S.W.2d 197 (Tex.App.-Austin 1991).
XVII. MISCELLANEOUS CONSIDERATIONS
A. JURY ARGUMENT
1. State Court Rule
A per diem argument on pain, anguish, impairment and disfigurement was upheld in International Harvester v. Zavala, 623 S.W.2d 699 (Tex. Civ. App. - Houston [1st Dist.] 1981, writ ref'd n.r.e.).
2. Federal Court Rule
The "unit of time" argument was criticized by the Fifth Circuit Court of Appeals (Judges Clark, Goldberg and Rubin) in Westbrook v. General Tire and Rubber Co., 754 F.2d 1233 (5th Cir. 1985), holding that such argument was improper in the absence of a suitable cautionary instruction. The court cautioned that they were not holding that a unit of time argument is reversible per se, but rather that it may be allowed when "couched with proper safeguards or otherwise cured."
B. PLEADING OF ADDAMNUM
Under Rule 47, TEX.R.CIV.P., there is permitted only the statement that the damages sought in a personal injury or wrongful death (claim for unliquidated damages) exceed the minimum jurisdictional limits of the Court. This rule was adopted effective January 1, 1978. At least one attorney has been disciplined under the State Bar Disciplinary Rules for violating this rule and suing for specific sums of money.
C. SEPARATE/COMMUNITY PROPERTY STATUS OF DAMAGES
By statute a recovery in a personal injury suit is the separate property of the injured party with respect to all elements except loss of earnings. Tex. Fam. Code § 5.01 (Vernon 1975).
Loss of consortium is the separate property of the deprived spouse. Id.; see also, Williams v. Steves Industries, 678 S.W.2d 205, 210 (Tex. App. - Austin 1984), aff'd, 699 S.W.2d 570 (Tex. 1985). Therefore, the negligence of the one spouse does not diminish the recovery of the other parent. You may not impute negligence of one spouse to another so as to bar recovery of separate property. Graham v. Franco, 488 S.W.2d 390 (Tex. 1972).
D. ADMISSIBILITY OF LIFE EXPECTANCY TABLES TO PROVE DAMAGES
The U.S. Life Expectancy Tables are summaries of actuarial calculations designed to provide an estimate of the life expectancy of a person at any given age and may form the basis for certain calculations by the jury.
1. Poor Health
Poor health goes to the weight, not the admissibility, of the life expectancy tables. Harwell & Harwell, Inc. v. Rodriguez, 487 S.W.2d 388 (Tex. Civ. App. - San Antonio 1972, writ ref'd n.r.e.).
2. Ultrahazardous Occupation
The tables are admissible even if the deceased was engaged in an ultrahazardous occupation, and regardless of his health.
The tables are admissible in cases involving Mexican nationals injured in Texas. Byrd v. Trevino Bermea, 366 S.W.2d 632 (Tex. Civ. App. - Austin 1963, no writ).
E. ADMISSIBILITY OF DEFENDANT'S NET WORTH
In virtually every jurisdiction, the net worth of the defendant is admissible in those instances where the plaintiff is seeking exemplary or punitive damages. In Garry Lunsford and Robert Dail v. Hon. Joseph B. Morris, 744 S.W.2d 929 (Tex. 1988), the Supreme Court of Texas announced that such evidence of the defendant's net worth was not only discoverable but admissible. The court recognized discretion in the trial court to reasonable limitations to guard against unnecessary harassment or invasion of personal or property rights.
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