                                NUMBER 13-17-00594-CV

                                   COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI–EDINBURG


UNIT DRILLING COMPANY,                                                                    Appellant,

                                                    v.

MICHAEL GILMORE,                                                                          Appellee.


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


                             MEMORANDUM OPINION
   Before Chief Justice Contreras and Justices Longoria and Perkes
              Memorandum Opinion by Justice Longoria

      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.


      1 Unit   raises six issues on appeal. We only address this issue because it is dispositive. See TEX.
                                         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.




R. APP. P. 47.1.
        2 According to Unit employees, a blowout preventer is designed to keep formation pressures below
surface level contained or encased. Unit was not certified to make repairs, so Unit contracted with Accurate,
which sent Gilmore.

                                                     2
        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


        3 Experts at trial described the disorder as a neurological injury related to an autonomic dysfunction
hyperactivity or hypersensitivity.

                                                      3
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.


       4  The actual damages award comprised $575,000 for past damages and $450,000 for future loss
of earning capacity. The jury did not award any damages for future pain, mental anguish, disfigurement,
impairment, or medical expenses.


                                                  4
       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



       5   TEX. CIV. PRAC. & REM. CODE ANN. § 41.008.

                                                  5
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).




                                              6
       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 need to be redacted.

       [Gilmore]:    Yeah, I’m not gonna publish it.

       [The Court]: Okay.

       [Gilmore]:    Your Honor, we offer Plaintiff’s Exhibit 51.

       [Unit]:       No objection, Your Honor.

       [The Court]: It would be admitted.

When the exhibit went to the jury room, it had not been redacted.

       Gilmore argues that Unit failed to make a specific objection and the record does

not show that the trial court knew the nature of the information that was to be redacted.

Unit responds that the trial court entered an order prior to trial excluding any reference to

Unit being protected by liability insurance. While the pretrial order does not preserve error

as to the admission of the document, see Tex. Dep’t of Transp. v. Pate, 170 S.W.3d 840,

850 (Tex. App.—Texarkana 2005, pet. denied), the trial court made clear during the

hearing on Unit’s motion for new trial that its understanding was that the insurance



                                              7
information was to be redacted “at the end of trial before it reached the jury room.”

Accordingly, we find that the trial court was on notice of the information expected to be

redacted. See McInnis Book Store, 860 S.W.2d at 488.

       Texas Rule of Civil Procedure 327 sets out the standard for the granting of a new

trial when jury misconduct is alleged as a basis therefor:

       Where the ground of the motion is misconduct of the jury or of the officer in
       charge of them, or because of any communication made to the jury or that
       they received other testimony, or that a juror gave an erroneous or incorrect
       answer on voir dire examination, the court shall hear evidence thereof from
       the jury or others in open court, and may grant a new trial if such misconduct
       proved, or the testimony received, or the communication made, or the
       erroneous or incorrect answer on voir dire examination, be material, and if
       it reasonably appears from the evidence both on the hearing of the motion
       and the trial of the case and from the record as a whole that injury probably
       resulted to the complaining party.

TEX. R. CIV. P. 327. The rule places the burden on the movant to establish, to the

satisfaction of the court: that the misconduct occurred, that it was material, and that it

reasonably appears from the record as a whole “that injury probably resulted” to him.

Simon, 580 S.W.2d at 669 (citing St. Louis Sw. Railway Co. v. Gregory, 387 S.W.2d 27,

31 (Tex. 1965)).

       In McInnis Book Store, the appellant insurance company complained that the jury

received evidence that the appellee book store owner was acquitted of arson in

connection with the fire that damaged the book store. Id. at 487. When appellee

attempted to admit the complained-of exhibit, a bench conference was held, wherein the

exhibit was admitted subject to being sanitized of the complained-of portions.          Id.

Ultimately, the exhibit was not redacted and went to the jury room. Id. In that case, this

Court held that the offering party had the responsibility to sanitize the document prior to

submitting it to the jury. Id. However, we found that the appellant in McInnis Book Store

                                             8
did not meet its burden to demonstrate that it suffered harm as a result of the admission

of the complained-of information, and therefore, the trial court did not abuse its discretion

in denying the motion for new trial. Id.

       Similarly, in Simon, a copy of the court’s charge with the appellee’s attorney’s

notes on it was inadvertently admitted into the jury room with the exhibits. 580 S.W.2d at

668.   The court of appeals noted that it did not believe there was “any intentional

wrongdoing on the part of anyone connected with [the] trial,” but that the extra copy was

just taken in along with the exhibits. Id. In that case, appellant moved for a mistrial on

the basis of jury misconduct. Id. (citing TEX. R. CIV. P. 281 (“Where only part of a paper

has been read in evidence, the jury shall not take the same with them, unless the part so

read to them is detached from that which was excluded.”)). The court reviewed the record

and determined that the jury’s answers to the damages special issues “differed

significantly from the amounts written thereon by the appellee’s attorney” and therefore,

the appellant did not show that probable injury resulted from the jury receiving a copy of

the charge with the attorney’s notes on it. Id.

       Here, as in McInnis and Simon, the jury received a piece of information that was

not admitted into evidence, nor intended for their consideration, specifically that Unit had

$9,000,000 in liability insurance coverage. We note that we do not believe that either

party intended for the jury to receive this information, nor do we believe that the jury

viewed the information knowing that they should not have; however, the inadvertent

admission of the insurance information was misconduct. See Barrington v. Duncan, 169

S.W.2d 462, 465 (Tex. 1943) (finding that misconduct was conclusively shown where

jurors testified that the question of insurance was mentioned during deliberations). The



                                             9
question following an affirmative finding of misconduct is whether the misconduct requires

reversal. See id. at 464.

       Four jurors filed affidavits and swore that: “[T]he jury considered the $9 million in

insurance when reaching a decision to award $8 million in punitive damages.” “This court

takes judicial knowledge of the fact that a jury is more apt to render a judgment against a

defendant, and for a larger amount, if it knows that the defendant is protected by

insurance.” Id. at 465 (citing Kuntz v. Spence, 67 S.W.2d 254 (Tex. Comm’n App. 1934)).

Here, the jury admitted that there was a discussion of the insurance coverage and that it

was used to determine the amount of damages, accordingly, the misconduct was material

and probably caused Unit to suffer injury. See id.; see also Strange v. Treasure City, 608

S.W.2d 604, 609 (Tex. 1980) (holding that jury’s misconduct by twice casually mentioning

insurance did not warrant new trial, where no amount of insurance coverage was

discussed and there was no testimony that the amount of verdict was increased after

mention of insurance). Accordingly, the trial court abused its discretion in denying Unit’s

motion for new trial. Unit’s first issue is sustained.

                                     III.   CONCLUSION

       We reverse the judgment of the trial court and remand for a new trial.


                                                               NORA L. LONGORIA
                                                               Justice

Concurring Memorandum Opinion by Justice Perkes.

Delivered and filed the
10th day of October, 2019.




                                              10
