February 13, 2015
(http://www.scotxblog.com/news-and-links/admissibility-of-seat-belt-evidence-in-accident-cases-insurance-coverage-for-the-bp-oil-spill-feb-13-2015/)
By Don Cruse
With today’s orders list, the Texas Supreme Court issued opinions in two cases. It did not choose any new cases for review.
Opinions
Evidence about seat-belt use is now admissible in auto accident cases
NABORS WELL SERVICES, LTD. F/K/A POOL COMPANY TEXAS, LTD. AND LAURO BERNAL GARCIA v. ASUNCION ROMERO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF AYDEE ROMERO, DECEASED, AND AS NEXT FRIEND OF EDGAR ROMERO AND SAUL ROMERO; ESPERANZA SOTO, INDIVIDUALLY AND AS NEXT FRIEND OF ESPERANZA SOTO, GUADALUPE SOTO, MARIA ELENA SOTO; AND MARTI, No. 13-0136
Opinion of the Court
In 1974, the Court ruled that evidence about whether a car’s occupant was wearing a seat belt was not admissible in an auto-accident case. Carnation Co. v. Wong, 516 S.W.2d 116 (Tex. 1974). Today, the Court overrules that decision.
It explained that the legal background motivating that rule had changed. First, Texas no longer has a contributory-negligence system, under which a plaintiff could be absolutely barred from recovery if they were even the slightest degree negligent. It now has a system of comparative negligence, with a plaintiff’s recovery merely reduced by the percentage of their own fault — unless that fault exceed 50%.1
Second, the Court noted that mandatory seat-belt laws began, and became more strict, after its 1974 ruling. Given that change, the Court referred to its prior holding as “a vestige of a bygone legal system and an oddity in light of modern societal norms.”
The Court rejected the argument that intervening statutes had, implicitly through silence, approved the blanket rule against the admission of seatbelt evidence. In 1985, while approving Texas’s first mandatory-seatbelt law, the Legislature had passed a prohibition on the admission of evidence about seatbelt use that was even broader than the Court’s. But in 2003, the Legislature repealed that provision while making other changes. The Court saw this repeal — without adding other language about the seat-belt question — as the Legislature choosing for its part to be silent. Thus, the Court rejected the argument that the Legislature had weighed in either way.
The Court holds that normal rules of evidence should apply, leaving the details to be sorted out in the usual way:
Today’s holding opens the door to a category of evidence that has never been part of our negligence cases, but we need not lay down a treatise on how and when such evidence should be admitted. Seat-belt evidence has been unique only in that it has been categorically prohibited in negligence cases. With that prohibition lifted, our rules of evidence include everything necessary to handle the admissibility of seat-belt evidence. As with any evidence, seat-belt evidence is admissible only if it is relevant. … The defendant can establish the relevance of seat-belt nonuse only with evidence that nonuse caused or contributed to cause the plaintiff’s injuries. And the trial court should first consider this evidence, for the purpose of making its relevance determination, outside the presence of the jury. … Expert testimony will often be required to establish relevance, but we decline to say it will be required in all cases. And, of course, like any other evidence, even relevant seat-belt evidence is subject to objection and exclusion under Rule 403.
The Court also considered how this should be handled for children who are not wearing seat belts, concluding that it can be proper for a jury to consider both whether an adult in the car bears some responsibility for that injury, as well as whether the child was acting as would an “ordinarily prudent child of [the same] age, intelligence, experience and capacity.”
And the Court addressed whether the jury should be asked who caused the accident (what the Court calls “occurrence-causing conduct) and then asked separately who caused each person’s injury (“injury-causing conduct”). The Court said no, that both kinds of fault should be folded into a single apportionment question. “There is nothing about injury-causing conduct that renders it incompatible with being considered alongside occurrence-causing conduct in one responsibility apportionment for the harm suffered by the plaintiff.”
1 The facts involve a collision in which multiple passengers were ejected from a car, including children, and there is conflicting evidence about which adults or children were wearing seatbelts. Even without hearing evidence of seat-belt use, the jury assessed fault for the accident as being 51% to the trucking company and 49% to the family-car driver. Even with the reduction, the family’s award here was $2.3 million. ↩
Previously:
Two opinions, one rehearing grant, and six grants (March 23, 2014)
Three opinions, one grant (June 16, 2014)
A quiet orders list (October 12, 2014)
BP does not have insurance coverage as an “additional insured” under the policy purchased by Transocean
IN RE DEEPWATER HORIZON, No. 13-0670
Guzman Hecht Green Willett Lehrmann Boyd Devine Brown
Opinion of the Court
Dissenting
In 2010, a drilling rig owned by Transocean and developed by BP exploded in the Gulf of Mexico, leading to months of subsurface oil leakage, damage to coastal communities and industries, and other serious claims. In the parties’ drilling contract, Transocean was to be responsible for above-surface pollution risks while BP was to be responsible for subsurface pollution risks. Another provision of the contract required Transocean to provide “additional insured” protection to BP.
BP sued over the scope of this “additional insured” coverage, arguing that Transocean’s insurers must cover BP’s losses, regardless whether the specific cause was above or below the surface.
The Fifth Circuit originally ruled in favor of BP, concluding that the insurance policy itself did not limit the scope of coverage afforded to BP and that, under EVANSTON INSURANCE COMPANY v. ATOFINA PETROCHEMICALS, INC., No. 03-0647, it should not look beyond the text of that document to find a limitation to coverage. On rehearing, however, the Fifth Circuit withdrew its opinion and chose to certify this question to the Texas Supreme Court to authoritatively address two questions under Texas law:
- Does ATOFINA compel a finding that BP is covered for these damages?
- Does the doctrine of contra proferentem (that is, construing a contract against the person who drafted it) apply even in a sophisticated commercial context?
The Texas Supreme Court reached the opposite result, basing its decision on a less restrictive reading of ATOFINA, one that is compatible with the idea that an insurance policy can effectively “incorporate” another document needed to understand its scope:
Texas law has long allowed insurance policies to incorporate other documents by reference, and policy language dictates the extent to which another document is so incorporated. The policies here provide additional-insured coverage automatically where required and as obligated by written contract in which an insured has agreed to assume the tort liability of another party. Because BP is not named as an insured in the Transocean policies or any certificates of insurance, the insurance policies direct us to the additional-insured provision in the Drilling Contract to determine the existence and scope of coverage. Applying the only reasonable construction of that provision, we conclude that, as it pertains to the damages at issue, BP is an additional insured under the Transocean policies only to the extent of the liability Transocean assumed for above-surface pollution.
Having concluded that BP is covered by Transocean’s policies only to the extent that the drilling contract required, the Court answered the first question no, that there is no coverage.
The Court did not reach the second question about the contra preferentum doctrine because that rule applies only to ambiguous text, and it saw no ambiguity here.
Previously:
The fight over the BP/Deepwater Horizon oil spill reaches the Texas Supreme Court (August 29, 2013)
SCOTX takes the Deepwater Horizon case (September 6, 2013)
Three opinions, one grant (June 16, 2014)
