Estrada v. Dillon

23 S.W.3d 422, 2000 Tex. App. LEXIS 1808, 2000 WL 293949
CourtCourt of Appeals of Texas
DecidedMarch 21, 2000
DocketNo. 07-99-0059-CV
StatusPublished
Cited by11 cases

This text of 23 S.W.3d 422 (Estrada v. Dillon) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estrada v. Dillon, 23 S.W.3d 422, 2000 Tex. App. LEXIS 1808, 2000 WL 293949 (Tex. Ct. App. 2000).

Opinion

DON H. REAVIS, Justice.

Appellants Manuel Estrada and Lear Lines, Inc. (Lear Lines) appeal from a judgment following a jury trial that Dennis Dillon and CNA Insurance Companies recover $75,897.52, plus 50% of the taxable court costs and interest as provided therein, of and from Lear Lines, after the trial court’s partial granting of a motion to disregard jury findings. By a sole issue, Lear Lines contends the trial court erred in granting the motion to disregard jury findings and entering its own award of damages. Dillon and CNA cross-appeal, and by five issues contend the jury failed to award them any recovery for (1) past and future physical impairment; (2) past and future physical pain and mental anguish; and (3) future medical expenses. Based upon the rationale expressed herein, we reverse the judgment of the trial court.

On March 29, 1993, on Interstate 27 in Lubbock, a Lear Lines tractor trailer rig driven by Manuel Estrada was slowing down to pull over and stop after colliding with a small truck, when it was struck in the rear by another truck being driven by Dennis Dillon. Because none of the parties present any issues contesting liability, the details of the accident are not necessary for the disposition of this appeal. Following the accident, Dillon was trapped in his truck and the jaws of life were used to cut him out of the truck, after which he was transported to the hospital by ambulance. Due to severe lacerations to his knees, Dillon was unable to move either knee.

According to Dillon’s testimony, an examination in the emergency room by Dr. Robert Carr, an orthopedic surgeon, revealed that Dillon suffered 12 fractures of his right femur; a torn posterior cruciate ligament under his left leg; five broken ribs; two cracks in his pelvis; numerous shattered or cracked teeth; and bruises on his sternum and arm. Doctor Carr testified the injuries were consistent with injuries sustained in an automobile accident, and based on his examination and the patient’s history, he saw no evidence of any prior injuries. Dillon also had open lacerations on his left knee, his right knee past the joint, and the distal femur. Also, because Dillon’s injuries were open wounds with a higher potential for contamination and infection, he was taken to surgery on the day of the accident. Dillon’s right knee had an open fracture that extended all the way down the joint and the bone to the distal femur. In addition, the outside of the bone was split and fractured into multiple fragments and the cartilage in the kneecap was softened due to the high force of impact. The injuries required the use of a Dramatic Compression Screw (DCS plate) on Dillon’s right leg to pull together the bone fragments that had been split apart. A large plate, wires, and screws were used to secure the broken part of the bone to the normal part. After surgery the bone was restored, but there was still damage to the articular cartilage, which, according to Dr. Carr, has very little potential to heal itself. Dillon was placed in intensive care for two to three days. Within five or six weeks, Dillon’s ribs and bruises healed. Two months after the surgery the cuts on Dillon’s knees healed, and in time, his pelvic fractures healed.

Dillon continued to experience pain and in July 1993, an x-ray revealed some bone spur formation in his right knee. There was also a question on whether his fracture had healed completely, prompting surgery on July 15. The procedure required taking bone from his pelvis for a bone graft, which was secured with new screws and fixation plates. Bone spurs in the kneecap were also removed during surgery. After the surgery, Dillon used crutches to keep weight off of his newly grafted bone and commenced physical therapy. When the right knee and leg had healed sufficiently to give Dillon “a good [425]*425leg to stand on,” surgery was performed on his left knee in November 1993 to correct a posterior cruciate ligament injury. Then, in December 1996, a follow-up surgery was necessary to remove a screw which was causing irritation and to manipulate scar tissue around the kneecap. According to Dr. Carr’s testimony, Dillon -will always have softened scar tissue cartilage in his knee joint, permanent loss of motion, and arthritis-type discomfort in his knee. His left knee is now weaker than before because it overcompensates for his right leg, causing it to be weak and painful.

After Dillon filed suit, and Lear Lines answered, CNA Insurance Companies, the worker’s compensation carrier for Dillon’s employer, filed its third amended plea in intervention asserting subrogation rights in the amount of $129,905.07, as of the date of the amended pleading. Following presentation of the evidence and a charge conference, the trial court submitted three questions with subparts to the jury. By answers to questions one and two, the jury found that the negligence of both Lear Lines and Dillon proximately caused the occurrence in question, and the jury attributed 50% negligence to each party. By answers to question three which contained ten subparts,1 the jury awarded Dillon $1,000 as damages for past physical pain and mental anguish; $1,500 for loss of earning capacity in the past; and $47,000 for past medical care expenses; otherwise, the jury did not award Dillon any damages for future physical pain and mental anguish, future medical care, loss of earning capacity in the future, past and future physical impairment, and past and future disfigurement.

By motion to disregard jury findings and for entry of judgment, Dillon and CNA contended the jury findings to questions 3(C), 3(D), and 3(E) were contrary to the uncontroverted evidence and moved that the court award $149,295.03 for past medical expenses, $81,000 for future medical care, and $22,000 for loss of earning capacity in the past. Following a hearing on the motion to disregard jury findings, the trial court partially granted the motion regarding medical expenses and awarded $149,295.03 for past medical expenses instead of $47,000, but otherwise denied the motion and rendered judgment accordingly. Then, Dillon and CNA each filed their motions for new trial. As material here, by their motions, Dillon and CNA contended that the jury’s answers to questions 3A, [426]*4263B, 3D, 3E, 3F, 3G, 3H, 31, and 3J were contrary to the overwhelming weight of the evidence and that the jury findings were against the great weight and preponderance of the evidence. The motions for new trial were overruled by operation of law.

By its sole issue, Lear Lines contends the trial court erred in partially granting Dillon’s motion to disregard the jury’s answer regarding past medical expenses. Dillon and CNA present five issues by their cross-appeal. By issue one, they contend it was error for the jury to award zero damages for past physical impairment (Question 3G) and by issue two, contend it was error for the jury to award only $1,000 damages for past physical pain and mental anguish because the amount of the award is tantamount to zero damages (Question 3A). By issues three, four, and five, Dillon and CNA contend the jury findings of no damages for future pain and mental anguish (Question 3B), future medical care (Question 3D), and future physical impairment (Question 3H) are against the great weight and preponderance of the evidence. In our analysis, we first consider the issues presented by Dillon and CNA.

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Bluebook (online)
23 S.W.3d 422, 2000 Tex. App. LEXIS 1808, 2000 WL 293949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estrada-v-dillon-texapp-2000.