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Unit Drilling Co. v. Gilmore

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

October 10, 2019

UNIT DRILLING COMPANY, 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 Perkes

          MEMORANDUM OPINION

          NORA L. LONGORIA JUSTICE

         Appellant Unit Drilling Company (Unit) appeals a judgment rendered in favor of appellee Michael Gilmore. Unit argues that the trial court erred in denying its motion for new trial based on jury misconduct.[1] We reverse and remand.

         I. Background

         Gilmore, a certified technician for Accurate Valve Services (Accurate), was called out to one of Unit's oilfield sites on September 13, 2011, to repair a seal on a blowout preventer.[2] Gilmore testified he had worked with Unit on over fifty occasions, and each time, Unit provided Gilmore with a forklift and pallet to hoist him up to the site requiring repairs. On this particular day, Gilmore was "boomed out"-i.e., lifted up by the forklift arms while standing on a pallet-by Unit employee and certified forklift operator Rolando Luna. Luna testified he was aware that transporting Gilmore on the forklift went against his training and Unit's safety protocols. Luna also testified that prior to this incident with Gilmore, he had been reprimanded by supervisors for improperly using the forklift to carry people. Luna testified he did not think Unit supervisor Jerry Chaney, who was on site, saw him use the forklift to raise Gilmore.

         On the other hand, according to Gilmore, Chaney was present for the entire ordeal. Gilmore testified that Chaney directed Luna to back up the forklift-a command that Luna testified he heard but could not attribute to Chaney. As Luna backed up the forklift, he did not check the area for potential hazards, and there was no spotter in place as required by Unit's safety procedures. The forklift backed over a cable that was stretched across the ground. The cable, which became wrapped in the forklift's tire, connected to a nearby pulley. The cable broke, sending the pulley flying toward Gilmore. The pulley struck Gilmore's right hand, causing injury.

         Vicente Lopez testified that, although he was the rig manager responsible for overseeing daily rig operations, his view of Gilmore was blocked by other machinery at the time, and he did not witness the accident. Unlike Lopez, Chaney stated a nearby structure only partially obscured his sight. Further, contrary to Gilmore and Luna, Chaney testified he witnessed Gilmore moving forward instead of backward: "I see [Gilmore] in a forward motion in this area, and I see a forklift tire, and I see something strike [Gilmore's] hand as he's holding himself, he's stabilizing himself, he's looking forward, and then I see something hit his hand." Chaney denied seeing Gilmore on the forklift prior to the accident.

         Gilmore underwent surgery the following day for a crush injury to the fourth metacarpal bone on his right hand. Gilmore returned to work with Accurate in December 2011 and worked for the company until he was laid off in March 2013. Three years after his September 2011 injury, Gilmore was diagnosed with complex regional pain syndrome.[3] Gilmore then underwent a trial implantation for a spinal cord stimulator in December 2015.

         Experts presented at trial fervently disputed the level of pain Gilmore suffered and the extent his injuries precluded him from working. All the while, Unit's safety procedures went uncontested: all forklift operators were certified; forklift employees were recertified in forklift operations every one to two years; Unit held multiple safety meetings each day; a job safety analysis (JSA) was required before working with third parties; Unit prohibited individuals from riding forklifts on the side, forks, and in the cab; Unit employees were taught that misuse of forklifts could cause serious injury or death; spotters were required before moving forklifts; and written copies of Unit's safety protocols were provided to each employee for daily use. Additionally, Chaney testified Luna failed to follow multiple Unit procedures on the day of Gilmore's accident.

[Chaney]: Nobody should be allowed to ride on the forklift but the operator himself.
[Counsel]: Did Mr. Luna fail to follow that procedure on September 13 of 2011?
[Chaney]: Yes, he did.
[Counsel]: Was one of the procedures to make sure that there were no obstructions in the path of the forklift?
[Chaney]: Yes.
[Counsel]: Did Mr. Luna fail to follow that procedure?
[Chaney]: Yes.
[Counsel]: Was one of the procedures to conduct a job safety analysis JSA for the task to be performed?
[Chaney]: Yes.
[Counsel]: And to your knowledge, was a JSA performed that day prior to the task that was about to be performed before the accident?
[Chaney]: I do not remember seeing a JSA.

         The nearly two-week trial concluded on April 28, 2017, with a jury awarding Gilmore $1, 025, 000 in actual damages[4] and $8, 000, 000 in exemplary damages. The trial court applied a statutory cap, [5] reducing Gilmore's judgment against Unit to $943, 750 in actual damages and $1, 885, 000 in exemplary damages, plus pre-judgment interest.

         After the jury's verdict had been received by the judge and the jury had been dismissed, Unit spoke with the jury. Unit was informed that the jury received an unredacted insurance certificate in the jury room. The insurance certificate reflected that Unit had $9, 000, 000 in insurance coverage. Unit moved for a mistrial and a new trial, arguing there was unauthorized conduct and outside influence causing substantial harm. Attached to its motion, Unit included affidavits of jurors regarding the jury's consideration of the insurance certificate. Unit also sought to elicit juror testimony in support of its motion. In his opposition to Unit's motion for mistrial, Gilmore also opposed Unit's request to elicit juror testimony and moved to quash the affidavits of the jurors. On August 16, 2017, the trial court granted Gilmore's motion to quash the juror affidavits and denied Unit's motion to elicit juror testimony and its motion for mistrial.

         Unit sought emergency reconsideration and filed a motion for new trial. Reconsideration was granted and the trial court set aside its August 16 order. A hearing was set and Unit subpoenaed witnesses to appear. Prior to the hearing, the trial court sua sponte quashed the subpoenas. Unit requested to proceed with an evidentiary hearing, which was denied. The trial court denied Unit's motion for mistrial and motion for new trial.

         II. Jury Misconduct

         By its first issue, Unit argues that the trial court erred in denying its motion for mistrial because the jury improperly considered an insurance certificate. "'Misconduct of the jury' is a legal phrase meaning an unlawful or unauthorized act done by the jury or any of its members in connection with the trial. . . . It does not necessarily imply an evil or corrupt motive on the part of the jury or the prevailing party." City of Houston v. Simon, 580 S.W.2d 667, 668 (Tex. App.-Houston [14th Dist.] 1979, no writ) (quoting Sidran v. W.Textile Prods. Co., 258 S.W.2d 830, 832 (Tex. App.-Dallas 1953) rev'd on other grounds, 262 S.W.2d 942 (1954)).

         To obtain a new trial based on jury misconduct, the moving party must show that (1) misconduct occurred, (2) it was material, and (3) the party probably suffered injury as a result. Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex. 1985); Am. Gen. Fire & Cas. Co. v. McInnis Book Store, Inc., 860 S.W.2d 484, 486-87 (Tex. App.-Corpus Christi- Edinburg 1993, no writ); Perry v. Safeco Ins. Co., 821 S.W.2d 279, 280 (Tex. App.- Houston [1st Dist.] 1991, writ denied). The movant bears the burden of presenting evidence substantiating fact claims necessary to entitle the movant to relief. Cocke v. Saks, 776 S.W.2d 788, 790 (Tex. App.-Corpus Christi-Edinburg 1989, writ denied)). The motion must also be supported by a juror's affidavit alleging outside influence. See Editorial Caballero, S.A. de C.V. v. Playboy Enters., Inc., 359 S.W.3d 318, 324 (Tex. App.-Corpus Christi-Edinburg 2012, pet. denied) (citing Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23, 24 (Tex. 1987) (per curiam)). To determine whether the misconduct probably resulted in injury, we evaluate the "record as a whole." Id.; see In re Whataburger Rests. LP, 429 S.W.3d 597, 599 (Tex. 2014) (orig. proceeding) (citing Fountain v. Ferguson, 441 S.W.2d 506, 508-09 (Tex. 1969)) (broadly construing the phrase "record as a whole" to include "any and all parts of the record which may throw light on the question of injury"); see also Tex. R. Civ. P. 327(a).

         Unit complains that the jury received evidence of its liability insurance. During trial, Gilmore offered an exhibit which contained a statement that Unit had $9, 000, 000 in liability insurance, prompting a bench conference.

[Gilmore]: Did you ever see the contract between Blackbrush Oil & Gas, LLP, and Unit Texas Drilling LLC?
[Witness]: It's possible.
[Gilmore]: Your Honor, we would offer Plaintiff's Exhibit No. 51.
[Unit]: And may we approach just very quickly, Your Honor?
[The Court]: Yes.
[Unit]: Your Honor, we have no objection, but there are a number of provisions that ...

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