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Moore Freight Services, Inc. v. Lorena Munoz, Ind.

Court of Appeals of Texas, Eighth District, El Paso

July 26, 2017

MOORE FREIGHT SERVICES, INC., CHARLES "CHIP" STRADER, AND XMEX TRANSPORTS, L.L.C., Appellants,
v.
LORENA MUNOZ, IND. AND ON BEHALF OF THE EST. OF LORENZO MUNOZ, AND AS N/F OF C.M., A MINOR CHILD, LESLIE MUNOZ, VIRGINIA MUNOZ, JESSICA LOPEZ, AS N/F OF A.F. AND J.L., MINOR CHILDREN AND HEIRS TO THE EST. OF ROGER FRANCEWARE, DEC., AND ROSA FRANCEWARE, IND., Appellees.

         Appeal from 168th District Court of El Paso County, Texas (TC # 2010-4169)

          Before McClure, C.J., Rodriguez, J., and Larsen, J., (Senior Judge) (Larsen, J., Senior Judge, sitting by assignment)

          OPINION

          ANN CRAWFORD McCLURE, Chief Justice.

         This is a suit for wrongful death, survival, and exemplary damages brought pursuant to Civil Practice and Remedies Code Chapters 71 and 41, respectively, by the beneficiaries and family members of Lorenzo Munoz and Roger Franceware. At issue is an August 17, 2010, single commercial motor vehicle accident in Mitchell County, Texas, in which Munoz and Franceware were killed after the tractor-trailer in which they were driving veered off the highway at a slight angle. Because we hold that there is legally insufficient evidence to support causation, we reverse and render.

         FACTUAL SUMMARY

         The Accident

         On August 17, 2010, at or around 1:22 a.m., Central Standard Time, a Moore Freight Services, Inc. (Moore Freight) semi-truck (truck or Unit 311) occupied by two professional commercial truck drivers, Roger Franceware and Lorenzo Munoz, was traveling on Interstate Highway 20 in Mitchell County, Texas, when the truck drifted across the left shoulder and onto the grass median, damaging the steel cable barrier to its left and a guardrail to its right as it drove between them. All of the experts who testified at trial agreed that Unit 311 veered off the road as a result of driver inattention, particularly given the slight angle at which it drifted off the highway. After traveling approximately 295 feet parallel to the highway, Unit 311 plummeted into an uncovered concrete drainage channel that ran underneath and perpendicular to the highway. The drainage channel was about 35 feet wide and 25 feet deep. Unit 311 collided with the far retaining wall of the channel and caught on fire. Both Franceware and Munoz died in the crash.[1] There was no evidence of braking, steering to avoid an obstacle, or any mechanical failure or defect. There was no evidence of any interference from another vehicle or animal. Finally, there was no evidence that the truck was speeding, as expert J.W. Moore testified that it averaged a speed of about 65 miles per hour. An accident reconstructionist expert, Chris Ruble, testified that as little as two seconds of inattention would have been sufficient to cause the accident. Trooper Nathan Armstrong investigated the wreckage and labeled the first body he found as #1 and the second as #2, which were later identified as Franceware and Munoz, respectively. Munoz's body was discovered in the driver's seat with the steering wheel on top of him. From this, Trooper Armstrong, with the assistance of other first-responders, concluded that Munoz was the driver and Franceware was the passenger. Ruble agreed with Armstrong regarding the position of the bodies. Ruble thought it unlikely that Unit 311's occupants could have switched places as a result of either the truck's movements during the crash, or the use of fire hoses to put out the fire. Ruble also opined that Munoz's chest injury was consistent with being in the driver's seat.

         Moore Freight Services, Inc.

         Moore Freight is a commercial trucking company which operates as an interstate motor carrier for hire. In 2010, it had more than 200 tractor-trailers and operated four terminals in Laurinburg, North Carolina; Spring Hill, Kansas; Kingsport, Tennessee; and Knoxville, Tennessee. Moore Freight's main office was located about 20 miles from Knoxville in Mascot, Tennessee. Daniel Ray Moore owned the majority interest of Moore Freight and was the chief executive officer at the time of the events in question. In 2010, Randy Moore was acting president, Julie Reasonover was the manager of the accounting department, Judy Lowery was the manager of the human resources department, and Grant Mize was the Vice President of Operations. Mize was ultimately responsible for overseeing the movements and dispatch of all Moore Freight tractor-trailers.

         As a motor carrier, Moore Freight is responsible for ensuring its employees and commercial motor vehicles are in compliance with the Federal Motor Carrier Safety Regulations (FMCSR). At the time of the accident, Moore Freight carried workers' compensation insurance.

         Moore Freight hired Charles "Chip" Strader approximately four years prior to the accident. Initially, Strader worked as a dispatcher and information technology professional. Eventually, he was assigned to manage the southwest van division, which included El Paso County. Strader, as a manager, reported to Dan Moore, and then to Mize or Randy Moore whenever Dan Moore was unavailable. Moore Freight also authorized Strader to book loads and to assign and dispatch drivers. Strader managed six to ten Moore Freight drivers located in the El Paso area. Strader was also the customer representative for Moore Freight for the El Paso area.

         Unit 311 was owned and titled in Moore Freight's name. Unit 311 needed to travel to Tennessee for repairs and Dan Moore testified that this furthered Moore Freight's business. These repairs were cosmetic in nature and did not impede the truck's ability to operate safely on the road. In addition to transporting Unit 311 to Tennessee for cosmetic repairs, Franceware had some outstanding trip sheets and driver's logs, which needed to be submitted, and Munoz, as a prospective Moore Freight employee, needed to attend orientation, both of which also furthered Moore Freight's business.

         Franceware's Background and Circumstances

         Franceware was born on February 20, 1978. At the time of his death, he was not married and had four children: J.L., born in 2000; A.F., born in 1998; E.L.F., born in 1998; and M.C.[2]For most of his adult life, Franceware worked as a professional, over-the-road commercial truck driver. Driving trucks was Franceware's passion and he had a reputation as being a responsible, experienced, and professional driver. He took great pride in being a professional truck driver and prior to the accident, he had over ten years of experience on the road. Moore Freight hired Franceware on June 16, 2010, two months before the fatal accident occurred. Franceware normally drove Unit 313, sometimes referred to as "the show truck, " which transported loads only within Texas. Before Moore Freight hired him, Franceware worked at CJ Trucking; Carnegie; Rio Grande Freightlines, Inc.; Christianberry Trucking and Farm, Inc.; and Southwest Freight Lines Trucking, Inc. The record is unclear as to whether Franceware received any fatigue or circadian rhythm training from any of these previous employers.

         At the time of the accident, Franceware was in good health and well-rested. He was in compliance with the federally regulated 34-hour reset period and had not consumed any drugs or alcohol.

         Munoz's Background and Circumstances

         Munoz was born on July 4, 1971. He married Lorena Munoz on August 20, 1991. They had three children, V.M., born May 8, 1992; L.M., born December 6, 1995; and C.M., born August 7, 2007. Munoz obtained his commercial driver's license and began driving commercial motor vehicles in 2003. At the time of the accident, Munoz had been driving commercial motor vehicles for seven years. He was considered a veteran driver. According to his wife, Munoz would not do things that presented a risk to himself. He always wore his seatbelt and ensured the vehicle he operated was in safe, working order. If he were tired, Munoz knew not to operate any heavy equipment. When he was out on the road, Munoz knew he had to spend time in his tractor to comply with the hours-of-service regulations. He was in good health and well-rested. At the time of the accident, Munoz was in compliance with the federally regulated 34-hour reset period and had not used drugs or alcohol. Munoz was not a Moore Freight employee. Instead, he was a prospective employee who, according to his wife, had applied with Moore Freight on August 6, 2010, and was traveling to Tennessee in Unit 311 for orientation. Telephone records reflect Strader and Munoz communicated before the accident. Munoz called Strader at Moore Freight's headquarters on August 3, 2010, and Strader called him back. Munoz called Strader again on August 14. During his testimony at trial, Strader could not recall whether he actually talked to Munoz, because "[he] got calls all the time from drivers wanting jobs." Phone records also showed a number of phone calls between Munoz and Moore Freight employee Jose "Shorty" Arras on August 6, 7, 10, 14, 15, and 16, 2010, none of which Arras could recall. Before the accident, Munoz worked for the City of Merced; Northern Refrigerated Transportation; Munoz Trucking; Y&T Gutierrez Trucking; J.J. Transport; Federal Express; Acre's Transportation, Inc.; M.S. Cargo, Inc.; Los Angeles-El Paso Express; Lee Trucking, Inc.; Rowland Trucking; and Russell Transport. The record does not indicate whether Munoz received any fatigue or circadian rhythm training from these employers.

         Trans Front and Sotelo

         Andres Sotelo is the owner of Trans Front, a transportation company. He is also part-owner of AVG Worldwide Logistics, a brokerage company that brokered the load involved in the accident.

         XMEX Transports, L.L.C.

         Strader founded XMEX, a limited liability trucking company. The Articles of Organization were filed with the Department of State for the State of Tennessee on July 14, 2010. According to Strader, XMEX did not operate as a motor carrier prior to the accident, but extensive testimony at trial was dedicated to XMEX's operations occurring before August 17.

         Strader's Alleged Unauthorized Use of Moore Freight's Trucks and Drivers

         According to Strader, Mize directed him to dispatch Unit 311 to Tennessee for repairs and maintenance. While Strader was a Moore Freight employee at the time of the accident, he was also starting his own trucking company, XMEX. Strader claimed that XMEX had not yet begun operating at the time of the accident, but several bank statements reflect that XMEX had already issued payments to drivers, including Franceware. Specifically, XMEX paid driver Juan "Shorty" Arras on August 11, 2010; Juan Camacho in August 2010 for trips he made two weeks prior; and Franceware on August 14, 2010, as well as on August 2, 2010, and in July 2010. Additional testimony revealed that the appearance of a new payor on a paycheck, such as XMEX, would not have alerted a driver like Arras, Camacho, or Franceware, that anything was amiss.

         Evidence at trial also revealed that Franceware charged over $6, 000 on his Moore Freight issued fuel card between July 16, 2010 and July 29, 2010, despite his failure to submit corresponding trip reports, log sheets, or fuel tickets to Moore Freight. In the months leading up to the accident, Moore Freight was aware of these charges and investigated the matter, ultimately terminating Franceware's access to his company fuel card. After the accident, copies of Franceware's completed log sheets were discovered at his house.[3] Strader testified that XMEX began issuing its own fuel cards, one of which was given to Franceware at the beginning of August 2010. Franceware began using the XMEX fuel card on August 2, 2010, four days after his Moore Freight fuel card was canceled. Strader testified that he informed a few of Moore Freight's El Paso customers, including Sotelo (Trans Front and AVG), that Dan Moore wanted to conduct business on a cash basis. Sotelo testified that rather than paying Strader in cash, Strader told him to begin writing checks to XMEX, which he did. According to Sotelo, Strader informed him that Dan Moore would ultimately receive the cash and the checks made payable to XMEX. Finally, evidence concerning the specific load being hauled to Tennessee by Franceware and Munoz -- No. 60729 -- was not entered into Moore Freight's computer system until after the accident occurred. On the morning of August 17, 2010, after learning of the accident, several Moore Freight employees were unable to locate load No. 60729 anywhere in the computer system. Strader testified that he inputted the specific load into Moore Freights computer system several days earlier, but that it was deleted the morning of the crash and then reentered into the system later that day. Other Moore Freight employees indicated that specific load numbers are generated automatically in numerical order by Moore Freight's computer system, and that the previous load -- No. 60728 -- was assigned after the accident, thereby making it impossible for load No. 60729, the load at issue, to have been assigned before the accident. Evidence at trial revealed that a load could not be deleted from Moore Freight's computer system; it could only be canceled and canceled loads still remained visible in the system. Finally, Marvin Breeden, safety director for Moore Freight, further testified that at around 4 p.m. on the afternoon of the accident, Strader told him he was inputting the load involved in the accident into the system.

         Moore Freight's Investigation of Strader

         Dan Moore testified that he suspected that Strader might be engaging in fraudulent activity leading up to the accident, but he lacked sufficient proof of his suspicions. In addition to the Franceware fuel documentation issue, Dan Moore was aware that: (1) some drivers under Strader's supervision had complained about not being timely paid; (2) some customers had complained about not getting timely information; (3) some suspicious trailer movements had been identified by electronic monitoring available on certain units, which Strader denied knowing about when asked and which Dan Moore continued to monitor; and (4) Strader had recently undergone a change in attitude. In response to these issues, Dan Moore moved Strader's office next to his own so he could personally monitor Strader. Moore also met with Moore Freight's top-level management to discuss Strader's suspected fraudulent activity, specifically the possibility that Strader was using Moore Freight equipment to run unauthorized loads on behalf of his company, XMEX. The managers continued to investigate Strader's activities, but none of the managers -- Randy Moore, Mize, Sparks, nor Reasonover -- testified regarding the details of the investigation.

         The Load Involved in the Accident

         Strader testified that because it was unprofitable for the Unit 311 tractor to travel such a long distance without pulling a trailer, he called around looking for a load that needed to be delivered near Moore Freight's headquarters. AVG found a trailer for Unit 311 to haul --SMTC's trailer -- containing 23 pallets of computer components.

         According to the information sheet, the 23 pallets of computer components were scheduled to be picked up on Friday, August 13, 2010, and delivered on Tuesday, August 17, 2010. Ruben Alvarado, an employee of the sending company, testified that the load was due on Monday, August 16, 2010, and that it was very important for it to arrive on time. Munoz and Franceware left El Paso at 6 p.m. on Monday, August 16, 2010. Given the testimony elicited at trial, the load was either already late (by Ruben Alvarez's standards), or was due in less than 24 hours (according to the load information sheet). The load's pick-up point was Pendale Road in El Paso and its destination was Greensboro, North Carolina, 1, 723 miles away. Given the distance, it would take a single driver approximately 2.4 days to make the trip from El Paso to Greensboro, and a team of drivers might be able to make trip in roughly 24 hours. Strader consistently denied authorizing a "team drive." He also testified that he could have called and rescheduled the delivery, but ultimately did not do so.

         The Events Preceding the Accident

         On Thursday, August 12, 2010, Franceware returned to El Paso after having been out of town. He was home Friday, August 13, through Sunday, August 15. That Sunday, Franceware played paintball with his family and then went to his mother's house during the evening. By 6:00 p.m. on August 16, Franceware had rested for more ...


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