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Accurate Valve Service, Inc. v. Gilmore

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 4, 2019

ACCURATE VALVE SERVICE, INC., Appellant,
v.
MICHAEL GILMORE, Appellee.

          On appeal from the County Court at Law No. 3 of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Hinojosa

          MEMORANDUM OPINION

          NORA L. LONGORIA JUSTICE.

         Appellee Michael Gilmore sued appellant Accurate Valve Services, Inc. ("Accurate Valve") and multiple other defendants for injuries sustained in a workplace injury. On the day the trial was to begin, Gilmore nonsuited Accurate. After the jury returned a verdict finding Accurate partially liable as a responsible third party, Accurate filed a motion for sanctions against Gilmore. The trial court denied the motion. On appeal, Accurate claims that the trial court erred in denying its motion for sanctions. We affirm.

         I. Background

         The underlying facts are undisputed. In 2011, Gilmore was injured while working at an oil drilling site controlled by Unit Texas Drilling, LLC ("Unit"). Unit contracted Gilmore's employer, Accurate Valve, to replace seals on the door of the blow out preventer. Employees on site had Gilmore stand on a wooden pallet that was raised in the air by a forklift to perform his duties. While Gilmore was standing on the forklift, the forklift operator went in reverse and severed a cable wire on the ground, causing an industrial-sized metal pulley to fall and crush Gilmore's right hand. Gilmore sued Accurate Valve and Unit.

         Accurate Valve filed a no-evidence motion for summary judgment, which the trial court denied. During the discovery period, Gilmore filed an affidavit, stating:

In addition, there is a tool called "lifting eyes" that would have allowed me to make the same repairs without having to be elevated at all. I have personally used this tool in the past and have seen many other companies using it at drilling sites. Had Accurate Valve Service, Inc. provided me with this tool, I could have done all my work from the ground, I would not have needed a forklift, and my injury would not have occurred.

         In March of 2017, on the morning of trial, Gilmore agreed to non-suit Accurate Valve. Accordingly, Accurate Valve was dismissed from and did not participate in the trial. However, Unit Texas named Accurate Valve as a responsible third party. During the first day of trial, Unit's counsel cross-examined Gilmore as follows:

[Counsel for Unit]: And then you go on to say here, had they done so, I would not have made use of a forklift and my injury would not have occurred, we looked at that. In addition, there is a tool called lifting eyes that would have allowed me to make the same repairs without having to be elevated at all, correct? Do you see where I'm reading?
[Gilmore]: I see.
[Counsel]: And, sir, the truth is you actually had those lifting eyes in your truck, correct?
[Gilmore]: Yes, ma'am.
[Counsel]: Sir, can we agree that you had lifting eyes in your truck?
[Gilmore]: Yes.
[Counsel]: It was your decision not to use them?
[Gilmore]: I used the lifting eyes.
[Counsel]: But here-and you may have used it at other times, but what you're saying here is-these are my words, you are blaming them for this accident based on your words, your sworn affidavit, because ...

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