                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-13-00109-CV
                             ________________________

                WEST STAR TRANSPORTATION, INC., APPELLANT

                                           V.

              CHARLES ROBISON AND CHERIE ROBISON, APPELLEES



                          On Appeal from the 72nd District Court
                                  Lubbock County, Texas
             Trial Court No.2009-546,118; Honorable Ruben G. Reyes, Presiding


                                     January 23, 2015

                                      OPINION
                   Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, West Star Transportation, Inc., appeals the entry of a judgment in

favor of Appellees, Charles and his wife, Cherie Robison, for damages totaling

$5,298,590.78, for personal injuries sustained by Charles while working for West Star.

By four issues, West Star contends (1) the evidence is legally and factually insufficient

to support the jury’s finding that West Star’s negligence proximately caused the

occurrence in question, (2) the trial court erred in submitting a broad-form negligence
question, (3) the evidence is legally and factually insufficient to support the jury’s

findings as to damages, and (4) the trial court erred in granting summary judgment as to

West Star’s affirmative defense of settlement and counterclaim for breach of a

settlement agreement. We affirm the judgment of the trial court.


                                       BACKGROUND


       On April 23, 2007, Charles sustained a traumatic head injury after falling head

first from a loaded flatbed trailer which he was attempting to cover in the shipping yard

of West Star Transportation, Inc., his employer. At the time of the accident, West Star

was a nonsubscriber under the Texas Workers’ Compensation Act. It was undisputed

that the load being covered was an uneven load, containing both uncrated equipment

and pallet crates of differing heights, and was approximately thirteen feet off the ground

at its highest point, which was an unusual occurrence at West Star. In fact, West Star

did not even own the equipment needed to complete the task.              Covering the load

required that a tarpaulin, which weighed approximately 150 pounds, be placed on the

highest point of the load. After the tarpaulin was removed from a West Star storage

area, it was raised to the top of the load by a forklift West Star had to borrow from a

neighboring business. Charles was also lifted to the top of the load by standing on the

pallet being lifted. While the exact cause of the fall was undetermined, it is clear the fall

occurred while Charles was standing on the surface of the load, manipulating the

tarpaulin without safety equipment or assistance.        As a result of the fall, Charles

sustained a traumatic brain injury.


       On January 29, 2009, Charles and Cherie brought this suit seeking recovery of

the damages they sustained as a result of those injuries. In their original petition, the
                                             2
Robisons alleged West Star was “negligent in failing to provide a reasonably safe place

to work.” By letters dated April 13, and May 5, 2009, the Robisons offered to settle their

claims for the remaining limits of West Star’s insurance policy. The May 5 settlement

offer stated the offer would expire at 5:00 p.m., on May 8, 2009. West Star contends

that one of its attorneys, Levi McCathern II, telephoned one of the Robisons’ attorneys,

Christopher Carver, and orally attempted to accept that settlement offer prior to the

stated deadline. After the deadline passed, West Star again attempted to accept the

settlement offer by faxing a signed written memorandum to the Robisons’ attorneys.

Because the Robisons believed the offer automatically terminated when it was not

timely accepted in the manner required for a binding settlement agreement, they

rejected West Star’s purported acceptance. West Star then offered to settle the case on

May 14, 2009. When that offer was refused, West Star amended its answer to allege

the affirmative defense of settlement. West Star later filed a counterclaim against the

Robisons for breach of the settlement agreement it believed to exist between the

parties.   The Robisons filed a no-evidence motion for summary judgment on the

counterclaim on the grounds there was no meeting of the minds and the settlement

offer, as presented, was not timely accepted in a manner that complied with the

requirements of Rule 11 of the Texas Rules of Civil Procedure.


       On February 5, 2010, the trial court denied West Star's motion to enforce the

settlement agreement and, at the same time, ruled that the Robisons’ motion for partial

summary judgment was moot. Six months later, on August 26, 2010, West Star filed a

motion to sever its breach of contract counterclaim from the Robisons’ personal injury

cause of action.   Although the case was set for trial on September 27, 2010, on

September 14th, the trial court severed West Star’s settlement counterclaim from the
                                            3
underlying case, abated the underlying case and set the counterclaim for trial.1 Despite

the fact that it had previously determined the alleged settlement agreement did not

comply with Rule 11, the trial court then denied the Robisons’ motion for summary

judgment as to West Star’s counterclaim. As a result, the Robisons initiated mandamus

proceedings in this Court that concluded in the conditional granting of a writ of

mandamus directing the trial court to grant summary judgment in favor of the Robisons

on West Star’s then-severed counterclaim for breach of the alleged settlement

agreement.      In re Robison, 335 S.W.3d 776 (Tex. App.—Amarillo 2011, orig.

proceeding). West Star attempted to countermand the effect of that ruling by filing a

new petition for mandamus with the Texas Supreme Court. That petition was ultimately

denied on August 31, 2012.2        On September 28, 2012, the trial court vacated the

severance and consolidated the proceedings back into a single cause of action bearing

the original cause number. The trial court then granted the Robisons’ traditional and no-

evidence motions for summary judgment, ruling that West Star take nothing by its

counterclaim.


       Subsequently, the case proceeded to trial. Before trial, the parties stipulated that

Charles incurred reasonable and necessary medical expenses in the amount of

$250,618.92. Following five days of testimony, the trial court submitted the Robisons’

liability question to the jury in a single issue asking, “Did the negligence, if any, of [West

Star] proximately cause the occurrence in question?” That issue was preceded by the

“standard” instruction defining “negligence” to mean “the failure to use ordinary care;
       1
         The severed cause of action was assigned cause number 2009-546,118-B, under the style
“West Star Transportation, Inc., Plaintiff, versus Charles Robison and Cherie Robison.”
       2
        See http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=7090f8dd-975b-4eed-
8990-0e3c658e891d&coa=cossup&DT=PET MAND DISP&MediaID=7bf0cc87-3173-4834-a638-5b080ac
14095
                                              4
that is, failing to do that which a person of ordinary prudence would have done under

the same or similar circumstances or doing that which a person of ordinary prudence

would not have done under the same or similar circumstances.” The jury answered the

negligence question “yes” as to West Star.


       In response to question two pertaining to Charles’s damages, the jury also found

(1) past physical pain and mental anguish: $300,000, (2) future physical pain and

mental anguish: $700,000, (3) past loss of earning capacity: $168,540, (4) future loss of

earning capacity: $243,184, (5) past physical impairment: $5,000, (6) past medical care:

$378,718, and (7) future medical care: $3,337,857.         In response to question three

pertaining to Cherie’s damages, the jury found (1) past loss of consortium: $250,000

and (2) future loss of consortium: $150,000.


       Based upon prior stipulations and the jury’s verdict, on January 18, 2013, the trial

court entered a final judgment in favor of the Robisons and against West Star.            In

accordance with one of the prior stipulations, the judgment credited West Star for

benefits its insurer had already paid and awarded actual damages to Charles in the

amount of $4,898,590.78 and to Cherie in the amount of $400,000. The judgment also

awarded prejudgment interest, postjudgment interest and court costs.            West Star

subsequently filed its notice of appeal. We affirm the judgment of the trial court.


                      SINGLE OR MULTIPLE “THEORIES” OF RECOVERY


       Much of West Star’s arguments pertaining to issues one and two center on its

contention that the Robisons were asserting multiple and distinct theories of liability. By

its first issue, West Star contends the evidence was legally or factually insufficient as to


                                             5
three specific “theories” of liability: (1) failure to use fall protection or other mechanical

devices to assist tarping, (2) failure to require a pre-planning meeting, and (3) failure to

implement a policy whereby West Star would refuse to tarp over-sized loads. By its

second issue, West Star contends the trial court erred in submitting to the jury a broad-

form negligence question which allowed the jury to find it negligent based on any one of

the “multiple and distinct theories of liability” alleged by the Robisons. For purposes of

logical discussion we will address West Star’s second issue first.


                           ISSUE TWO—BROAD FORM SUBMISSION


       Broad-form submission is the preferred method of presentation of issues to the

jury. Isaacs v. Bishop, 249 S.W.3d 100, 108 (Tex. App.—Texarkana 2008, pet. denied).

In fact, Rule 277 of the Texas Rules of Civil Procedure explicitly provides that the court

“shall, whenever feasible, submit the cause upon broad-form submission.” See TEX. R.

CIV. P. 277. That preference notwithstanding, for many years Texas trial courts have

understood that it commits error by submitting a single broad-form liability question that

comingles “invalid” theories of liability with “valid” theories of liability. Crown Life Ins.

Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000).


       West Star’s general contention that the trial court erred by submitting multiple

and distinct theories of recovery is misguided because the Robisons were not

submitting distinct theories of liability. From the time the Robisons filed their original

petition, they have always contended that West Star was “negligent in failing to provide

a reasonably safe place to work.” While much to-do has been made about different

“theories of liability” by focusing on various testimony offered concerning what steps

could have been taken to make West Star’s shipping yard a safe work environment, that
                                              6
evidence was equally admissible for purposes of showing that on April 23, 2007, the

work place presented by West Star to Charles was unreasonably dangerous.


      Accordingly, we find that West Star’s multiple and distinct theories argument

more appropriately goes to the evidentiary weight of various acts of purported

negligence and does not constitute a distinct “theory” of liability as contemplated by

Casteel. Because the issue was, is, and always has been the single liability theory

concerning whether West Star was negligent in failing to provide a reasonably safe

place to work, we overrule issue two and proceed to an analysis of issue one

concerning the sufficiency of the evidence as to negligence and proximate cause.


                    ISSUE ONE—NEGLIGENCE AND PROXIMATE CAUSE


      Because West Star is a workers’ compensation nonsubscriber, it is not afforded

the common-law defenses of contributory negligence, assumption of risk, or negligence

of a fellow servant. See TEX. LAB. CODE ANN. § 406.033(a) (West Supp. 2014), Kroger

Co. v. Keng, 23 S.W.3d 347, 350 (Tex. 2000). Accordingly, in order to recover, Charles

and Cherie were only required to establish negligence and two causal nexuses: (1) a

causal nexus between the defendant’s conduct and the event sued upon and (2) a

causal nexus between the event sued upon and the claimant’s injuries. See Jelinek v.

Casas, 328 S.W.3d 526, 532 (Tex. 2010); Integrated of Amarillo, Inc. v. Kirkland, 424

S.W.3d 131, 136 (Tex. App.—Amarillo 2014, no pet.); Forrest v. Vital Earth Res., 120

S.W.3d 480, 489 (Tex. App.—Texarkana 2003, pet. denied).


      The causal nexus required to support recovery is “proximate cause,” which

consists of two elements, cause-in-fact and foreseeability. IHS Cedars Treatment Ctr.,


                                          7
Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex. 2004). Cause-in-fact is established when

the act or omission was a substantial factor in bringing about an event, and without

which cause such event would not have occurred. Id. The mere occurrence of an

event causing injury does not establish negligence. Allsup’s Convenience Stores, Inc.

v. Warren, 934 S.W.2d 433, 436 (Tex. App.—Amarillo 1996, writ denied). In order to be

a proximate cause, the act or omission complained of must be such that a person using

ordinary care would have foreseen that the event, or some similar event, might

reasonably result therefrom. City of Gladewater v. Pike, 727 S.W.2d 514, 524 (Tex.

1987). There may be more than one proximate cause of an event. Del Lago Partners,

Inc. v. Smith, 307 S.W.3d 762, 770 (Tex. 2010). The test for cause-in-fact is whether

the act or omission was a substantial factor in bringing about the injury "and without it,

the harm would not have occurred." IHS Cedars Treatment Ctr., 143 S.W.3d at 799.

More than one act or omission may be the proximate cause of the same injury. Lee

Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001). Therefore, if West

Star’s conduct was negligent and a substantial factor in bringing about Charles’s injuries

and without it the harm would not have occurred, then there is a sufficient cause-in-fact

to establish proximate cause.


      To establish negligence, a party is required to establish the breach of a duty

owed to the injured party, together with damages proximately caused by that breach.

Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995); El Chico Corp. v. Poole, 732

S.W.2d 306, 311 (Tex. 1987).      Whether a duty exists is a threshold inquiry and a

question of law. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006).




                                            8
      Although an employer is not an insurer of his employee’s safety at work, every

employer owes its employees a primary, continuing, and nondelegable duty to use

ordinary care in providing a reasonably safe work place. See Farley v. M M Cattle Co.,

529 S.W.2d 751, 754 (Tex. 1975) (“It is well established that an employer has certain

nondelegable and continuous duties to his employees. Among these are the duty to . . .

furnish a reasonably safe place in which to labor and the duty to furnish reasonably safe

instrumentalities with which employees are to work.”). See also Werner, 909 S.W.2d at

869 (citing Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1987)).      Accordingly, an

employer may not place an employee in an unreasonably dangerous work environment

without taking appropriate precautions. Furthermore, although an employer owes no

duty to warn of hazards that are commonly known or already appreciated by the

employee, liability cannot be avoided by merely alleging the hazard is known or

appreciated when the employer has created a work environment where an employee is

required to perform a task in an unsafe manner. Elwood, 197 S.W.3d at 794. See also

Town & Country Mobile Homes, Inc. v. Bilyeu, 694 S.W.2d 651, 655 (Tex. App.—Fort

Worth 1982, no writ) (employer found negligent for providing employee an unsafe

means of getting down from a trailer that was approximately four feet off the ground). In

addition to the duty to adequately warn an employee of the hazards of employment not

commonly known or appreciated, an employer must provide needed safety equipment,

suitable appliances, or sufficient assistance so that the employee may carry out his or

her assigned duties with reasonable safety. Elwood, 197 S.W.3d at 794; Forrest, 120

S.W.3d at 489. The duty to provide a safe work environment also includes an obligation

to provide adequate help under circumstances where that assistance would be



                                            9
necessary for the safe performance of the work required. Werner, 909 S.W.2d at 869

(citing Western Union Tel. Co. v. Coker, 146 Tex. 190, 240 S.W.2d 977, 978 (1947).


                                  STANDARD OF REVIEW


       When, as here, both legal and factual sufficiency challenges are raised on

appeal, the reviewing court must first examine the legal sufficiency of the evidence.

See Glover v. Tex. Gen. Indemnity Co., 619 S.W.2d 400, 401 (Tex. 1981).              If the

evidence is legally sufficient, we will then proceed to an examination of the factual

sufficiency of the evidence.


       LEGAL SUFFICIENCY


       In conducting a legal sufficiency review, we must consider the evidence in the

light most favorable to the verdict and indulge every reasonable inference that supports

the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005). Evidence will

be found to be legally sufficient if it would enable reasonable and fair-minded people to

reach the verdict under review. Id. at 827. In conducting a legal sufficiency analysis

this Court must credit favorable evidence if reasonable jurors could and disregard

contrary evidence unless reasonable jurors could not. Id. The trier of fact is the sole

judge of the credibility of the witnesses and of the weight to be given to their testimony.

Id. at 819. The reviewing court may not substitute its judgment for that of the jury, so

long as the evidence falls within the zone of reasonable disagreement. Id. at 822. But if

the evidence allows only one inference, neither the jurors nor the reviewing court may

disregard it. Id.




                                            10
       In reviewing a legal sufficiency issue, we may sustain the challenge only when

(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to prove a

vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla of

evidence, or (d) the evidence conclusively establishes the opposite of the vital fact in

question. Keller 168 S.W.3d at 810; King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

751 (Tex. 2003), cert. denied, 541 U.S. 1030, 124 S. Ct. 2097, 158 L. Ed. 2d 711

(2004).


       FACTUAL SUFFICIENCY


       In reviewing factual sufficiency, the reviewing court must consider, examine, and

weigh the entire record, considering both the evidence in favor of, and contrary to, the

challenged findings. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.

1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998). In doing

so, the court no longer considers the evidence in the light most favorable to the finding;

instead, the court considers and weighs all the evidence and sets aside the disputed

finding only if it is so contrary to the great weight and preponderance of the evidence as

to be clearly wrong and unjust. Id. at 407.


                                          ANALYSIS


       As a nonsubscriber, the only defense available to West Star was to show that it

was not guilty of negligence proximately causing the injuries or that Charles himself was

guilty of some act which was the sole proximate cause of the occurrence.               Sears,

Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 239 (1955). Accordingly, if


                                              11
any negligent act by West Star was a substantial factor in bringing about Charles’s fall

and subsequent injuries, and if that event was a foreseeable occurrence without which

the fall and injuries would not have occurred, then liability has been established.


       As previously stated, the Robisons contend West Star was negligent and

breached its duty to provide a reasonably safe place to work when it presented Charles

with the unreasonably dangerous task of tarping a thirteen foot high load. West Star

contends the evidence was legally and factually insufficient to support the jury’s

conclusion that its negligence proximately caused the injuries sustained by Charles.

Specifically, West Star avers there was no evidence that it (1) failed to warn, train or

supervise Charles, (2) failed to provide adequate fall protection or other safety

equipment, (3) failed to provide a reasonably safe work place or (4) failed to act as a

reasonable employer of ordinary prudence.


       Relying on Kroger Co. v. Elwood, West Star posits it owed no duty to warn, train

or supervise Charles because he was an experienced flatbed truck operator with over

thirty years of experience. In Elwood, a grocery store employee brought a negligence

action against his employer after he was injured when a customer slammed a car door

on his hand as he was transferring items from a grocery cart to her vehicle.          The

Supreme Court held that, while the duty of ordinary care generally requires an employer

to “warn an employee of the hazards of employment and provide needed safety or

equipment assistance,” the employer “owes no duty to warn of hazards that are

commonly known or already appreciated by the employee.” Elwood, 197 S.W.3d at

794.   Here, the dangers associated with man-handling a 150-pound tarpulin while

standing on the top of an uneven and over-sized load are not nearly as apparent as

                                            12
placing your hand in the doorjamb of a door being operated by a third person.

Furthermore, the need for training and supervision in the two scenarios is not

comparable.


      West Star further argues that, even if it did owe a duty to warn, train or supervise

Charles, there was no evidence it breached any duty owed. In support of this argument,

West Star contends it was engaged in “ongoing monitoring” and on-the-job training of its

employees.    Nevertheless, the evidence shows that the load being worked on by

Charles was an unusually large load that presented an unreasonably dangerous work

environment in the absence of appropriate safety precautions or assistance.            By

accepting a load of that size, West Star created an unusually precarious work

environment and an unreasonable risk of harm to its employees—a risk that proved to

be true when Charles fell and was injured. Charles was performing a task that was

unusually precarious and not of the same character of work that he customarily

performed and he was doing so without any special supervision or safety equipment. In

fact, West Star did not even own the equipment necessary to safely perform the task at

hand, choosing instead to borrow a forklift from another business in order to have a

means of raising a 150-pound tarpaulin to the top of a load reaching thirteen feet in

height.   Furthermore, Charles was allowed to be lifted to the top of the load while

standing on the pallet carrying the tarpaulin, without a safety harness or other fall-

prevention equipment.    Additionally, West Star did not provide other supervision or

assistance.    Under these circumstances, the failure to provide needed safety

equipment, suitable tools or sufficient assistance contributed to the danger associated

with the task, and the absence of these safety policies, procedures and equipment

constitutes evidence of the unreasonableness of the task and the risks West Star was
                                           13
willing to assume when it asked Charles to mount that trailer and cover an uncommonly

high load.


       But for West Star’s decision to accept that load in the absence of those

precautions, Charles would not have been injured that day. In light of West Star’s lack

of preparedness, that decision was negligent in that it constituted the failure to use

ordinary care; that is, West Star failed to do that which a shipper of ordinary prudence

would have done under the same or similar circumstances, to-wit: either refuse a load

requiring unreasonably dangerous tarping or take appropriate safety precautions.

Furthermore, West Star did what a shipper of ordinary prudence would not have done

under the same or similar circumstances, to-wit: it accepted a load that presented an

unreasonably dangerous work environment for its employees. Because the evidence

was both legally and factually sufficient to support the jury’s verdict as to negligence and

proximate cause, we overrule issue one.


                                 ISSUE THREE—DAMAGES


       By its third issue, West Star maintains the evidence was both legally and

factually insufficient to support a portion of the jury’s award of damages. Specifically,

West Star contends Charles did not prove that, in reasonable probability, he would

sustain future pain and mental anguish. West Star further contends the jury’s award of

$243,184 for loss of future earning capacity impermissibly included sums that Charles

earned in the past and that the award of $3,337,857 in future medical expenses

impermissibly included expenses for which Charles has already been compensated.

Alternatively, West Star contends the jury’s awards are excessive.



                                            14
        As a general principle, we remain mindful that the amount of damages awarded

is a matter uniquely within the prerogative of the fact finder, particularly as it pertains to

subjective damages such as pain and mental anguish.                           Scott’s Marina at Lake

Grapevine, Ltd. v. Brown, 365 S.W.3d 146, 158 (Tex. App.—Amarillo 2012, pet.denied).

“[I]t is only when [a jury’s] award of damages is ‘flagrantly outrageous, extravagant, and

so excessive as to shock the judicial conscience,’ that it may be disturbed.” Id. (quoting

Missouri Pac. R.R. Co. v. Roberson, 25 S.W.3d 251, 257-58 (Tex. App.—Beaumont

2000, no pet). The standard of review for a challenge contending that an award of

damages was excessive is the same as the standard used in a factual sufficiency

review. Id.


        FUTURE PHYSICAL PAIN AND MENTAL ANGUISH


        In response to a granulated damages issue, the jury awarded $700,000 for

“physical pain and mental anguish” that, in reasonable probability, Charles would

sustain in the future. West Star contends the evidence does not support the existence

or amount of these future damages and it begins its argument by attacking the “mental

anguish” aspect of the jury’s verdict.3 See Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d

854, 860 (Tex. 1999) (noting that courts should “closely scrutinize” awards of mental

anguish damages).          The jury’s verdict was not, however, limited to mental anguish

damages, and it specifically included damages for physical pain Charles would, in

reasonable probability, sustain in the future. As it pertains to the pain aspect of the




        3
           West Star does not challenge the jury’s finding that Charles sustained damages of $300,000 for
physical pain and mental anguish in the past. West Star merely contends the evidence is legally and
factually insufficient to establish he will, in reasonable probability, continue to sustain similar damages in
the future.
                                                     15
jury’s verdict, West Star simply contends that neither Charles nor any physician ever

testified that he would likely never be pain-free.


       In reaching its decision, the jurors had before it Charles’s medical records which

provided details regarding his injuries. In addition, they heard expert medical testimony

regarding the nature and extent of his injuries detailing how he sustained a traumatic

brain injury, including the loss of brain material, which will significantly affect him for the

remainder of his life. They also heard testimony concerning how his injuries affected his

long-term emotional stability resulting in anger management issues and depression. In

sum, this evidence is legally and factually sufficient to support the jury’s damage verdict

pertaining to the future aspect of his physical pain and mental anguish.


       LOST EARNING CAPACITY IN THE FUTURE


       The jury also awarded Charles $243,184 for the loss of earning capacity that, in

reasonable probability, he would sustain in the future. West Star contends this figure

impermissibly includes damages that were sustained in the past. Specifically, West

Star contends the economist who testified as to the loss of earning capacity improperly

differentiated between past loss of earning capacity and future loss of earning capacity

because he drew the line between the two as of the date of his report rather than the

date of trial. See Bituminous Casualty Corp. v. Cleveland, 223 S.W.3d 485, 491 (Tex.

App.—Amarillo 2006, no pet.) (holding that “[l]oss of past earning capacity is the

plaintiff’s diminished capacity to earn a living during the period between the injury and

the date of trial,” and “[l]oss of future earning capacity is the plaintiff’s diminished

capacity to earn a living after trial”) (emphasis added). West Star reasons that it was

harmed because the jury’s award for future loss of earning capacity necessarily
                                              16
included losses which accrued between the time the report was prepared and the date

of trial.


        Testimony from the Robisons’ economist, a person West Star stipulated was

qualified to render an expert opinion, established that Charles’s lost earning capacity in

the past was $168,540, and in the future was $214,942 if he retired at age 65, or

$243,184 if he retired at age 66.4            The jury awarded $168,540 for loss of earning

capacity sustained in the past and $243,184 for loss of earning capacity that, in

reasonable probability, would be sustained in the future. As such, the jury did not award

overlapping damages for the loss of earning capacity sustained by Charles. Without

further analysis, this testimony alone is sufficient to enable any reasonable and fair-

minded person to reach the verdict under review and that verdict was not so contrary to

the great weight and preponderance of the evidence as to be clearly wrong or

manifestly unjust. Accordingly, we find the evidence is legally and factually sufficient to

support the jury’s damage verdict pertaining to lost earning capacity in the future.


        FUTURE MEDICAL EXPENSES


        Finally, and for similar reasons, West Star contends the evidence does not

support the full award of $3,337,857 for future medical care expenses.                        For future

medical expenses to be recoverable, the evidence must establish that there is a

reasonable medical probability that such expenses will be incurred in the future. Scott’s

Marina, 365 S.W.3d at 160. West Star suggests the evidence is legally and factually

insufficient because that figure was based upon a life care plan prepared by a

        4
           Unquestionably, the line of demarcation the expert used to differentiate between past and future
loss of earning capacity was “the date of my writing the report.” That date, however, was never presented
to the jury.
                                                    17
rehabilitation physician nearly three years before trial. The life care plan contained

various estimates based on different assumptions.                 Option I was based on the

assumption that Charles would receive care from a spouse or family member while

remaining in the home. Under this option, the witness opined that future medical care

would cost $1,970,618. Option II assumed Charles would receive care from a facility or

institutional type model and that future medical care based on this assumption would

cost $3,717,518.28.5 A third option assumed Charles would receive care from a facility

which would provide more closely supervised care than that provided in Option II.

Using this option, the rehabilitation physician projected that future medical care could

cost as much as $5,528,824.52.6 The rehabilitation physician did not reduce any of the

figures in his plan to their present values and instead relied upon the economist to do

so.


       While a jury may follow the testimony of an expert witness as to future medical

expenses, it may also consider the nature of the plaintiff’s injuries, as well as the nature

and extent of medical care rendered before trial and the plaintiff’s condition at the time

of trial. Scott’s Marina, 365 S.W. 3d at 160. Because the jury verdict for future medical

care was within the range of estimates supported by the testimony of the rehabilitation

physician and the economist, we find the evidence is legally and factually sufficient to

support the jury’s damage verdict pertaining to future medical expenses. Issue three is

overruled.




       5
          The economist testified that the present value of this amount would be $3,337,857—the amount
actually awarded by the jury.
       6
           The present value of this amount was $5,412,014.
                                                   18
     ISSUE FOUR—SUMMARY JUDGMENT AS TO W EST STAR’S AFFIRMATIVE DEFENSE OF
              SETTLEMENT AND COUNTERCLAIM FOR BREACH OF CONTRACT


      By its fourth and final issue, West Star contends the trial court erred in granting a

partial summary judgment in favor of Charles and Cherie as to its affirmative defense of

settlement and its counterclaim for breach of contract.         Specifically, West Star’s

complaint has three subparts: (1) this Court should not have reviewed via mandamus

the trial court’s interlocutory orders concerning the affirmative defense of settlement or

the counterclaim for breach of contract, (2) the trial court erred in granting Charles and

Cherie’s no-evidence motion for partial summary judgment because West Star’s

affirmative defense of settlement was not based on Rule 11 and (3) the trial court erred

in granting partial summary judgment because there were genuine issues of material

fact concerning whether the settlement agreement complied with Rule 11.


      While West Star spends much of its brief attempting to articulate perceived

“procedural irregularities” heretofore previously rejected by the Texas Supreme Court,7

ultimately, its complaint is that the trial court’s orders granting summary judgment

deprived it of the affirmative defense of settlement and the related counterclaim for

breach of contract. Therefore, essential to any construction of West Star’s complaint of

non-harmless error is its contention that there was, in law and in fact, a binding

agreement with Charles and Cherie to settle the claims being asserted by their lawsuit.

Without an enforceable agreement to settle, West Star’s complaints are merely

harmless error. See TEX. R. APP. P. 44.1.




      7
          See footnote 2, supra.
                                            19
         In that regard, Rule 11 of the Texas Rules of Civil Procedure mandates:


         Unless otherwise provided in these Rules, no agreement between
         attorneys or parties touching any suit pending will be enforced unless it be
         in writing, signed and filed with the papers as part of the record, or unless
         it be made in open court and entered of record.

(Emphasis added.)


         Rule 11 was designed to avoid disputes concerning oral settlement agreements.

Padilla v. La France, 907 S.W.2d 454, 461 (Tex. 1995). In Kennedy v. Hyde, 682

S.W.2d 525 (Tex. 1984), the Supreme Court stated that the policy behind Rule 11 is

clear:


         The rationale underlying Rule 11 is sensible and contributes to efficient
         court administration. Agreements and stipulations are welcomed by the
         courts because they limit the matters in controversy and expedite trial
         proceedings. Rule 11 ensures that such agreements do not themselves
         become sources of controversy, impending resolution of suits. The
         requirements of Rule 11 are not onerous; the benefits are substantial.

Id. at 530 (emphasis added).

         West Star contends the “in writing” requirement of Rule 11 was nonessential to

the formation of an agreement because the original offer of settlement “specified only

the time for acceptance of the offer (i.e., by 5:00 p.m. on May 8); it did not specify the

manner of acceptance or require that any acceptance be in writing.” The Robisons

disagree.    West Star’s argument completely ignores the plain language of Rule 11

which requires that any settlement agreement of a pending suit be in writing and this

kind of dispute concerning the enforceability of a settlement agreement is the very

scenario the “in writing” requirement of Rule 11 was designed to prevent.




                                              20
      West Star further contends that, even if Rule 11 did apply, the "in writing"

requirement was met by the written settlement offer itself and, therefore, the trial court

erred in granting summary judgment because West Star’s oral acceptance of that offer

presented a disputed fact issue. Even assuming that a factual dispute existed as to

whether West Star orally accepted the settlement offer via McCathern’s telephone

conversation with Carter, that is not a dispute pertaining to a relevant issue because

West Star's oral acceptance of the settlement offer, even if it occurred, does not comply

with the “in writing” requirement of Rule 11. Because there were no genuine issues of

material fact pertaining to the existence of an enforceable settlement agreement, the

trial court did not err in granting summary judgment in favor of the Robisons on the

issues of the affirmative defense of settlement or the counterclaim for breach of

contract. Because there was no enforceable settlement agreement, West Star was not

harmed by the trial court’s granting of summary judgment. Accordingly, issue four is

overruled.


                                      CONCLUSION


      The judgment of the trial court is affirmed.




                                                 Patrick A. Pirtle
                                                     Justice




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