Texas appellate court files controversial order in $90M Werner case

In an unusual move, a Texas court of appeals panel ordered a crash lawsuit against Werner Enterprises go straight to the full bench in a case worth $90 million.

On Tuesday, July 27, the Texas 14h Court of Appeals finally filed an order for a case that reached the court in November 2018. Rather than resolving the case against Omaha, Neb.-based Werner, the full court decided an en banc hearing is more appropriate, completely dismissing the panel’s proposed opinion issued in March. The panel consisted of judges Meagan Hassan, Randy Wilson and Ken Wise.

According to Judge Hassan’s concurrence, the original proposed opinion was issued 17 months after the appeal was submitted on oral argument, which is three months past the 24-month statutory deadline to resolve matters on appeal. Furthermore, the proposed opinion attempts to overhaul rules regarding direct verdicts, prompting the full court of appeals to deny the opinion and grant an en banc hearing instead.

However, two judges filed a fervid dissent to the order.

Chief Justice Tracy Christopher argued that the full court did not allow the panel to complete its job and issue an opinion in the Werner case. She said there was no reason to go to an en banc hearing without a panel opinion being issued first, essentially overriding standard protocol.

“There is no other appeal pending before this court with similar issues, nor are there any identified conflicts in our precedents,” Chief Justice Christopher stated. “Simply put, in the 11 years that I have been on this court, there have been no grants of en banc consideration in a situation such as this.”

Judge Wilson echoed those arguments. Wilson also pointed out that by ignoring and erasing the panel’s opinion, neither party will know the thoughts of the panel or why the court decided to hear it en banc, which is their right.

“Is this really what we’ve come to?” Wilson asks in his dissent. “Are we just going to skip the panel decision and go directly to en banc every time a justice thinks he or she might be able to cobble together enough votes to overrule a panel sometime in the future? Why is the en banc majority so afraid of issuing a panel decision and letting the parties know how at least some of the justices view this case? Why don’t we just skip panel decisions entirely and go directly to en banc in every case? We might as well since this case is no more appropriate for en banc consideration than hundreds of cases that this court hears every year.”

Werner driver ‘didn’t do anything wrong’

The controversial court of appeals order stems from a lawsuit filed by the family of 7-year-old Zachary Blake and Brianna Blake. Zachary was killed in the crash with a Werner truck. Brianna, who was 12 at the time, was rendered a quadriplegic as a result.

The Blakes on Dec. 14, 2014, were traveling east on Interstate 20 in Texas. Weather conditions began to worsen, coating the windshield of the pickup truck they were traveling in with ice. While traveling 50-60 mph, a car ahead of them began to fishtail. Zaragoza Salina, the pickup truck driver, lost control and careened across a grass median, entering the westbound lanes.

At this time, Shiraz Ali was driving a truck for Werner going west on I-20. Ali was driving below the speed limit when the pickup truck began to spin. Also present in the Werner truck was Jeff Ackerman, a more senior Werner driver-trainer. According to the appellate brief, Ali quickly reacted within half a second, hitting the brakes.

Even the Blakes’ expert witness conceded that Ali’s reaction was “very quick” and “appropriate to the conditions.” Essentially, Ali did everything he possibly could have done to avoid the crash.

During the trial, it was revealed that westbound I-20 was not slick like the eastbound lanes due to heavier traffic melting the ice with friction and heat. With the crash reducing traffic and weather conditions worsening, some areas of the westbound lanes became icy. Regardless, the Texas Department of Transportation felt conditions were safe enough to keep the interstate open. Witnesses stated that even though they felt no one should have been driving on I-20 that day, they did not fault Ali for the crash.

In addition to Salinas making statements suggesting guilt and responsibility, a Texas Department of Public Safety trooper defended Ali’s actions. Trooper Villareal, a 17-year veteran who investigated the accident, concluded “this is truly an accident,” Ali “didn’t do anything wrong,” and there was nothing Ali “could have done to avoid the collision.” A higher-ranking trooper who approved the report concurred.

Should Werner driver have been driving that day?

The Blakes ended up reaching a settlement with Salinas for nearly $500,000. They then filed a lawsuit against Ali and Werner seeking more than $300 million in addition to future medical expenses.

According to court documents, The Blakes’ based their case on the theory that Ali, who received substantial training and was a licensed commercial driver, should not have been on I-20 that day despite it remaining open for public travel. This was argued while successfully objecting to evidence that Salinas lacked a valid driver’s license. The theory was based on Texas’ CDL manual that discusses slippery surfaces.

“(The manual) requires commercial drivers to match their speed to the road surface to ensure they are able to maintain traction and visibility,” Werner argued. “But the Blakes flipped the purpose of this section, claiming it was designed to protect non-CDL drivers (like them) who might lose control and collide with commercial drivers.”

The Blakes’ argument was backed by an expert with no legal or regulatory experience and no employment in trucking in 30 years.

The expert claimed that truckers should drive at around 15 mph and immediately stop driving when possible whenever ice is present on the road, regardless of traction and visibility.

According to the appellate brief, the Blakes also claimed that Werner caused injuries by:

• Promoting Jamie Maus, someone the Blakes’ expert described as “a good woman” who “lacked the muscle,” to head Werner’s safety department six years before the accident.
• Tasking its legal department (a decade ago) with primary responsibility for investigating serious accidents – characterized by the Blakes’ counsel as shrouding investigations behind a “black curtain.”
• Lacking infrastructure at its headquarters for constantly checking weather and road conditions its drivers might experience and failing to provide on the-spot directives to drivers on how to get from point A to point B.
• Pursuing a “dangerous business model” by pairing new hires with experienced Werner drivers to work in teams to make on-time deliveries.
• Training drivers on hazardous conditions, using the “exact same wording” as the Federal Motor Carrier Safety Regulations, which instruct drivers to reduce speed to match road conditions, and if the conditions become sufficiently dangerous, discontinue driving “until the commercial motor vehicle can be safely operated.”

$90 million verdict

In July 2018, a jury found Werner 70% liable, Ali 14% liable, and Salina 16% liable. The district court judged signed off on the jury award of nearly $90 million. After interest, Werner owes nearly $92 million while Ali owes nearly $13 million.

Werner appealed the decision. It argued there is insufficient evidence supporting that Ali or Werner proximately caused that crash, especially anything that happened at the company years prior. Werner also argued that by affirming the decision Texas motorists who drive lawfully and below the speed limit can be liable for a crash involving a motorist on the other side of the highway who loses control of his or her vehicle through their own negligence.

“The trial of this case is currently being marketed as a ‘blueprint’ for truck accident lawsuits across Texas,” Werner stated in its appellate brief. “Presenting a jury with myriad aspects of a trucking company’s operations and history, even when the company concedes it is vicariously liable for any negligence of its driver, not only wastes limited judicial resources but deliberately diverts juror attention away from the facts and circumstances of the accident itself and instead ‘tries the company, not the driver.’”

Both parties now await the decision of the full 14th Court of Appeals.

In May, the Texas Senate advanced a bill that ensures “a level playing field” in commercial liability cases. The bill protects trucking companies from what are described as frivolous lawsuits in instances where the driver was not negligent. For more details about the bill, click here. LL