AFFIRIVI; Opinion [‘lied Iarch 8,2013.




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                                       No. 05-1 0-00342-CV


                 AMERICAN EUROCOPTER CORPORATION, Appellant

                                               V.

                         Ci SYSTEMS AVIATION GROUP, Appellee


                           On Appeal from the 298th I)istrict Court
                                    Dallas Con nt’, Texas
                             Trial Court Cause No. 02-03974-M


                  OPINION ON MOTION FOR REHEARING
                          Before Justices Murphy, Fillmore, and Myers
                                   Opinion By Justice Myers

       We withdraw this Court’s opinion of July 18, 2012 and vacate the judgment of that date; the

following is now the opinion in this case.

       On October 16, 2000, a Eurocopter AS 355 F2 Twinstar helicopter owned by Duke

University Medical Center in North Carolina and operated by Ci Systems Aviation Group (CJ),

crashed when the main rotor gearbox failed. American Eurocopter Corporation (American) had

overhauled the gearbox and provided it to CJ. Eurocopter, a French company, manufactured the

helicopter. The family of the deceased pilot sued American, which paid the family $2,250,000 in

settlement of the claims. Duke’s insurer sued American in an unsuccessful attempt to recover the
amount it paid Duke for the helicopter. American then sued Ci for contractual indemnity to recover

the amount of the settlement with the pilot’s family and for American’s attorney’s fees in the

different lawsuits. Ci counterclairned for breach of warranty on the failed gearbox. Following ajury

trial, the trial court rendered a takenothing judgment Ofl American’s claims against Ci and awarded

Ci $78,935.62 on its counterclaim.

           American brings six issues on appeal contending (a) the evidence is legally and factually

insufficient to support a finding that American’s negligence, if any, was a proximate cause of the

crash; (b) the trial court erred by denying American judgment for contractual indemnity and

attorney’s fees in the amounts found by the jury; (c) the jury’s answer concerning whether Ci’s

negligence was the sole legal cause of the crash was immaterial; and (d) there was no evidence of

an express warranty for which Ci could be awarded money damages. We affirm the trial court’s

judgment.

                                                           BACKGROUND

           Betbre the crash, Ci ordered an overhauled main rotor gearbox from American’s facility in

Grand Prairie, Texas. The gearbox arrived with the appropriate documentation certifying it as

airworthy. On October 12, 2000, four days before the accident, CJ ‘s mechanics installed the gearbox

on the helicopter and tested it. The overhauled gearbox passed its tests and test flights without any

problems and without any warning lights illuminating. This overhauled gearbox should have been

good for 3000 hours of flying.

                                                                 The Crash

           On the night of October 16, when the gearbox had only about three and one-half hours ofuse,



    l
       Many of the facts related below were disputed in the trial cou. This factual summa presents the evidence in the light most favorable to the
jury’s decision.
the helicopter was needed to transfer a patient from Alamance Medical Center to Duke. The pilot,

John Holland, and two nurses took off from Duke in the helicopter.             During the flight, the

oil-pressure warning light for the gearbox illuminated, but the oil-temperature warning light did not

illuminate. Holland landed the helicopter safely at Alamance hospital, shut down the engines, and

took the helicopter out of service. The nurses left the helicopter and arranged for the patient and

themselves to be taken to Duke by ground ambulance.

        Holland called Ci’s mechanic on duty that night, Charles Edgerton, who arrived at Alamance

with some tools but no maintenance manuals or spare parts. Edgerton checked for oil leaks, did not

find any evidence of an oil leak, and did not smell any burnt oil. Edgcrton turned on the battery

switch, starting the electrical power but leaving the engines turned off The oil-pressure warning

light illuminated, but this was appropriate because, with the engines off, no oil pressure was

generated. Edgerton then disconnected the oil-pressure switch, and the       warning   light turned off,

which indicated the light was connected to the oil-pressure switch and was not being illuminated by

a short circuit. Edgerton knew that when only the gearbox oil-pressure warning light illuminated,

the problem was usually a faulty oil-pressure switch, which would be replaced. Edgerton did not

have the tools and parts with him to change the switch. He rotated the main rotor and did not feel

any unusual vibrations or hear any unusual sounds. Edgerton and Holland decided that because the

gearbox was newly overhauled and had minimal use, the problem was a faulty oil-pressure switch.

They decided that Holland would run the engines for a few minutes on the ground and then hover

just offthe ground. If no other warning lights illuminated, and if Holland felt comfortable flying the

helicopter, Holland would fly the helicopter back to Duke for further maintenance. Holland asked

Edgerton to leave the oil-pressure warning light disconnected    so   he would not be distracted from

observing the oil-temperature warning light if it came on. Holland ran the helicopter on the ground,
hovered thr a few minutes, and then flew away About one minute into the flight, the main rotor
                                                                         .




gearbox suffered a catastrophic failure. The helicopter crashed, and Holland was killed. Accident

investigators testified that the crash was caused by the lack of cooling lubrication on the gears of the

main rotor gearbox.

                                                                The Gearbox

           Unbeknownst to Edgerton and Holland, the newly overhauled gearbox from American had

not properly passed its tests before being certified as airworthy. Under the procedures mandated by

Eurocopter’s overhaul manuals, before an overhauled main rotor gearbox may be certified for

service, it must pass a rotation bench test in which it is brought up to a particular speed and run for

ten to thirty minutes while monitoring the oil temperature and pressure. The first three times the

gearbox was tested,
            2 the oil temperature exceeded the maximum permitted before the ten-minute test

period expired. On the fourth test, the temperature reached, but did not exceed, the maximum

permitted temperature at the ten-minute mark. However, at the ten-minute mark, the oil pressure

dropped below the minimum permitted by Eurocopter’s overhaul manuals
                                                             3 Despite never obtaining

acceptable results on the bench test, American certified the gearbox as airworthy and transferred it

to CJ.

                                                     The Indemnity Agreement

           CJ signed a Service Center Agreement with American, which authorized CJ to maintain and

repair Eurocopter Helicopters for certain owners, including Duke. The agreement contained a




    2
     There is evidence showing Americans retesting of the gearbox violated Eurocopter’s overhaul manuals, Doug Stimpson, Ci’s expe witness
for maintenance and overhauling, testified that Eurocopter’s overhaul manuals required products that did not pass approval tests to follow different
procedures and not simply be retested.


     Eurocopter’s overhaul manuals required the oil pressure be no less than 3 bars, which is 43.5 psi. On the fourth test, the oil pressure after ten
minutes was 41 psi, which is 2.8 bars and below the required 3 bars of pressure.




                                                                        -4-
provision in which Ci agreed to indemnify American against all losses, claims, and expenses

including legal expenses with respect to defective work “arising from services furnished and work

performed” by Ci.
                                           The Litigation

        Duke’s insurer sued American in North Carolina for the loss of the helicopter, and American

received a verdict in its favor, The Holland family brought this lawsuit against American to recover

for John Holland’s death, alleging American’s negligence proximately caused Holland’s death.

American settled with the Holland family members, paying them $2,250,000. American filed a

thirdparty action against Cl alleging CJ was liable to American under the indemnity agreement for

American’s payments to the Holland family in settlement of their claims and for American’s

attorney’s fees in defending itself in this suit and in the litigation against Duke’s insurer. CJ filed

a counterclaim fbi’ breach of warranty against American for the cost of the gearbox.

       On American’s claims, the jury found CJ’s defective work resulted in a loss or claim to

American and that Ci, through reasonable diligence, could have discovered a matter that resulted

in a loss or claim against American. The jury did not find that the loss or claim against American

arose from CJ’s sole negligence. The jury also found that American’s negligence was a proximate

cause of “the accident in question.” On Ci’s breach of warranty claim, the jury found American

breached the warranty and that Ci’s damages were $78,935.62.

       CJ moved for judgment notwithstanding the verdict requesting the court to disregard the

jury’s answers indicating that Cl’s actions led to the claim against American and that CJ could have

discovered the matter that led to the claims against American. American also moved for judgment

notwithstanding the verdict on the jury’s finding that American’s negligence proximately caused the

accident. The trial court granted CJ ‘s motion and rendered judgment that American take nothing on
its claims   against   Ci. The court also rendered judgment lbr Ci for S78.935. 62 on its breach of

warranty claim against American.

                                            CAUSAT ION

        In its first issue, American contends there is no evidence of proximate cause to support the

jury’s finding that American’s negligence proximately caused the accident and that the trial court

erred by denying American’s motion for judgment notwithstanding the verdict on American’s

contractual indemnity claim,       in its second issue. American contends the jury’s finding that

American’s negligence proximately caused the accident was against the great weight and

preponderance of the evidence and that the trial court erred by overruling American’s motion for new

trial asserting flictually insufficient evidence of proximate causation.

       For an action to be the proximate cause of an injury, it must be both the cause in fact and the

foreseeable cause of the injury.M()k Mac River Expeditions v. Drugg, 221 S.W.3d 569, 5S2 (Tex.

2007). These elements cannot be satisfied by mere conjecture, guess, or speculation. If/S Qedars

Treatment Ctr. of DeSoto. Tex., Inc. v. Mason. 143 S.W.3d 794, 798—99 (Tex. 2003).

       in reviewing the legal sufficiency of the evidence, which also includes review of a ruling on

a motion for judgment notwithstanding the verdict, we consider all the evidence before the jury,

crediting evidence in support of the verdict if reasonable jurors could, and disregarding evidence

contrary to the verdict unless reasonable jurors could not. City ofKeller v. Wilson, 168 S.W.3d 802,

823, 827 (Tex. 2005); Morris v. Wells Faigo Bank. iV.A., 334 S.W.3d 838, 842 (Tex. App—Dallas

2011, no pet.). If there is more than a scintilla of evidence to support the finding, the evidence is

legallysufficient. FormosaFlastics Corp. USA v Presidio Eng’rs & Contractors, inc., 960 S.W.2d

41,48 (Tex. 1998). When the evidence offered to prove a vital fact is so weak as to do no more than

create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in




                                                 —6—
legal effect, is no evidence. Kindred v. Coni( 7icni. inc.. 650 S.W.2d 61. (3 ( 1ev. 1983). If the

evidence furnishes a reasonable basis for ditThrin conclusions by reasonable minds as to the

existence of a vital fact, then there is leaI1v sufficient evidence, more than a scintilla, to support the

fact. Id.

          When reviewing the factual sufficiency of the evidence, we examine all the evidence and set

aside a finding only if it is so contrary to the evidence as to be clearly wrong and unjust. Maritime

Overseas corp. v Ellis, 971 S.W.2d 402, 407 (Tex 1998);        c’ameron v. Cameron,     158 S.W.3d 680,

683 (Tex. App.—Dallas 2005, pet. denied). In conducting our review of both the legal and factual

sufficiency of the evidence, we are mindful that the jury, as fact finder, was the sole judge of the

credibility of the witnesses and the weight to he given their testimony. City of Keller, 168 S.W.3d

at 819; Kink/c v. 1/ink/c, 223 S.W.3d 773, 782 (‘fex. App.—Dallas 2007. no pet.). We may not

substitute our judgment for the fact tinder’s, even if we would reach a different answer on the

evidence. See Maritime Overseas Coip.. 971 S.W.2d at 407; Hinkle, 223 S.W.3d at 782.

          We review the overruling of a motion for new trial for an abuse of discretion. Waffle House,

Inc. v.   Williams, 313 S.W.3d 796, 813 (Tex. 20 1(J). The trial court abuses its discretion only if it

acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles.

Downerv. Aquamarine Operators, Inc., 701 S.W.2d 238, 241—42 (Tex. 1985); StaJjörd v. S. Vanity

Magazine, Inc., 231 S.W.3d 530, 538 (Tex. App.—-—Dallas 2007, pet. denied).

                                             Foreseeability

          American argues that any negligence by it in overhauling and inspecting the gearbox could

not be a proximate cause of the helicopter crash because Holland and Edgerton’s operation of the

aircraft with the oil-pressure warning light disconnected and when they knew it would have been

illuminated was not foreseeable as a matter of law. American’s argument is, in effect, that Holland
and Edgerton s actions were a new and independent and superseding cause of the crash.

         lo detcrniinc whether an act or omission alleged to be a new and independent cause is a

concurrint cause or a superseding cause. the court must determine whether the second act or

omission was frcseeab1e at the time of the first negligent act or omission. If the second act or

omission was foreseeable, then the causation is concui-rmg and the first actor remains liable.

However, if the second act or omission was not foreseeable, then its causation supersedes the first

instance of negligence, and the first actor has no liability for the resulting damages. Columbia Rio

Grande Iiealthcare, L.P. v. Hawley, 284 S.W.3d 851, 857 (Tex. 2009): Dew                                                v.   Crown Derrick

Erectors, Inc, 208 S.W.3d 448, 451 (Tex. 2006) (plurality opinion); Biaggi v. Patrizio Rest. inc.,

149 S.W.3d 300. 305 (Tex. App.—Dallas 2004, pet. denied). Moreover, where the risk resulting

from the intervening act is the same as the risk from the                         original     actor’s negligence, the intervening

act cannot he classified as a superseding cause. Cliimhia, 284 S.W.3d at 859; Dew, 208 S.W.3d

at 453 (citing     RESIATF:MFNT           (SECOND) OF TORTS § 442B).

        In this case, there is conflicting evidence regarding whether American could have foreseen

Edgerton’s action in approving the aircraft for the flight and Holland’s action in flying the aircraft

when the gearbox oil-pressure warning light was disconnected and when the warning light would

have been illuminated had it been connected.

        Eurocopter’s fault-isolation manual provides that the corrective action when only the

oil-pressure warning light illuminates is (1) to check the warning light electrical circuit, (2) to replace



    Section 342W styled intervening Force Causing Same Harm As That Risked By Actor’s Conduct.’ provides.

        Where the negligent conduct of the actor creates or increases the risk ofa particular harm and is a substantial factor in causing
        that harm, the fact that the harn’t is brought about through the intervention of another tbrce does not relieve the actor of
        liability, except here the harm is intentionally caused by a third person and is not within the scope of the risk created by the
        actor’s conduct.

RESTATEMENT   § 142B




                                                                     —8—
the oil—pressure switch, and (3) if there is no electrical anomaly, to remove the gearbox fbr major

overhaul. I he parties also presented witnesses testifying to thets relevant to determining whether

American could have loreseen the second t1iiht.

        William Monk, a helicopter mechanic employed by (1. testified that the manufcturer’s

manuals did not allow the aircraft to he flown before these steps were completed. Monk testitied

that he never deviated from the manuals and that he would comply with all the maintenance and

troubleshooting requirements possible before permitting anyone to fly an aircraft, even for a

maintenance flight.

        lames Lynn, CJ’s chief pilot, testified that Cl’s operations manual permitted nonroutine

flight operations. but only if the aircraft met a special definition of “airworthy.” That definition

required that the aircraft he inspected to determine that it is in a “safe” condition tbr flight. The word

“safe” was defined in the operations manual as meaning “Not apt or able to cause or incur damage

or harm. free from hazard.” Lynn testified he trained pilots to perform nonroutine flight operations

in safe aircraft only, and an aircraft with a failing gearbox is not safe. Lynn also testified that an

aircraft on which the oil-pressure warning light illuminates could have a problem with the gearbox

even if the oil-temperature warning light does not illuminate.

        William Force, an expert witness for American concerning piloting helicopters, testified that

Holland should not have made the second flight. The flight was a “ferry flight” to reposition the

aircraft for maintenance purposes. He testified that a pilot may not fly a helicopter, even on a ferry

flight, unless all the warning lights are operable and none of them are turned on. If the warning

lights are not operable, then the aircraft may not be flown. Force testified that Holland violated CJ ‘s

operations manual by flying the helicopter with a warning light disabled and when the warning light

would have been turned on if it had not been disabled. He testified the accident was preventable and




                                                  —9—
that it would not have occurred if Eurocopter s required procedures had been followed.

        Doug Stiinpson. CJ ‘S expert witness concerning the overhaul procedures for the gearbox and

the work of aircraft mechanics, testified that Holland and Edgerton’s actions were appropriate under

the circumstances. Stimpson testified, and Eurocopter’s fault—isolation manual provided, that the

warninu—light system warns of low oil pressure when both the oil-pressure and oil-temperature

warning lights illuminate. The manual states that possible causes of only the oil-pressure warning

light illuminating are a faulty warning light or a faulty oil-pressure switch. Stirnpson testified that

a helicopter with a faulty warning light or a faulty oil-pressure switch is not technically airworthy

for normal flight operations but is safe to fly. In that situation, he testified, it was appropriate for

Holland and Edgerton to decide to make a “ferry flight” to fly the aircraft to a base where repairs and

maintenance could be performed .See 14 CFR          21 1 97(a)( I).
                                                        .




       lo perform a ferry flight, one presents an application to the Federal Aviation

Administration’s (FAA) local office for a special flight permit. According to Stimpson, if the form

is filled out properly, the FAA issues the permit without inspection of the aircraft. Edgerton and

Holland did not apply for the special flight permit before making the flight because the FAA’s office

was closed. However, Stimpson testified that if they had applied, they would have received the

permit to fly the aircraft back to Duke, and the result would have been the same.

       Keith McCutchen, CJ’s expert witness on helicopter piloting, testified that ferry flights with

minor problems are customary in the industry. McCutchen testified that the oil-pressure warning

light illuminating would appear to a pilot to be a problem with the oil-pressure indicator and not a

sign of low oil pressure. The pilot in this situation would have no reason to believe a newly

overhauled gearbox was in imminent danger of failing. He stated that a ferry flight back to Duke for

further maintenance in this situation was appropriate. McCutchen thought Edgerton and Holland




                                                 -i o
should have gotten a special tlight permit belore Holland made the ferry flight: however, he testi bed

that “not having a ferry permit would not have caused the fluilure and the crash.’’ lie also stated that

disconnecting the oil—pressure warning light was a good idea. Jhe oil—temperature warning light was

located immediately below the oil—pressure warning light. With the oil—pressure warning light

disabled. the pilot would know immediately if the oil—temperature warning light came on.

McCutchen also testified that the flight manual’s rule that all warning lights must be offbefore flying

did not apply to ferry flights because those flights are governed by the federal air regulations, which

permit ferry flights.

        Stimpson and McCutchen’s testimony that a ferry flight in this situation would be a normal

occurrence constitutes some evidence that the felTy flight in this case was foreseeable to American.

See Ernst & Young, L.LP. v. Poe. Mut. I.ifi’ Ins. Co., 5 1 S.W.3d 573. 581 (Tex. 4001) (“General

industry practice or knowledge may establish a basis for foreseeability to show negligence

The jury’s implicit determination that the second flight was foreseeable was not so contrary to the

evidence as’ to be clearly wrong and unjust; accordingly, we conclude it is supported by factually

sufficient evidence.

        in support of its argument that the ferry flight was unforeseeable, American relies on this

Court’s opinion inAerospatiale Helicopter Corp. v. Universal Health Services, Inc., 778 S.W.2d 492

(Tex. App.—-Dallas 1989, writ denied), which involved a twin-engine helicopter crash. In that case,

the pilot took off while the cowling for one of the engines was open. During flight, the cowling

separated from the aircraft, snagged a fuel line, and cut off fuel to that engine. id. at 495. The

helicopter was designed to fly with only one engine, and it automatically shifted the power

requirements to the second engine. Id. at 496. The instruments in the cockpit reflected that one

engine was off line and the second engine was running at higher than normal torque and temperature.




                                                —1 1—
The pilot then shut off fuel to the second engine. The helicopter crashed, killing everyone on board.

Id. Aerospatiale, the helicopter manufacturer, asserted the cowling separation, as a matter of law,

was not a proximate cause or producing cause of the crash. Id. at 496 We agreed with Aerospatiale.

Id. at 497. In explaining why there was no proximate causation, we relied on authority stating,

       In applying the test of foreseeability to situations where a negligently created pre
       existing condition combines with a later act of negligence causing an injury[,] there
       is a distinction between a situation in which one has created a dangerous condition
       and a later actor observes, or by the circumstances should have observed, the
       existence ofthe dangerous condition and a situation in which the dangerous condition
       is not apparent and cannot be observed by the actor. In regard to the first situation,
       the intervening act interrupts the natural sequence of the events and cuts off the legal
       effect of the negligence of the initial actor. This is based upon the premise that it is
       not reasonable to foresee or expect that one who actually becomes cognizant of a
       dangerous condition in ample time to avert the injury will fail to do so.

Id. at 497 (quoting Wolfv. Friedman Steel Sales, Inc., 717 S.W.2d 669, 673 (Tex. App.—Texarkana

1986, writ ref d n.r.c.)). We observed that all the testimony showed that if the pilot had followed

the proper procedures, the accident would not have occurred.          The pilot failed to follow the

operator’s manual’s procedures for isolating a defective engine, and he had to take extraordinary

steps to shut off the fuel supply to the second engine, including breaking a wire. We concluded, “the

pilot’s actions in this regard were not foreseeable by Aerospatiale.” Id.

       Aerospatiale is distinguishable because, in this case, evidence exists that “the dangerous

condition is not apparent and cannot be observed by the actor.” Id. (quoting Wolf 717 S.W.2d at

673). Stimpson, McCutchen, and Armond Edwards, an aviation accident investigator, testified that

Edgerton and Holland could not have known that the gearbox was facing imminent failure.

       American also cites In re Air Crash at Dallas/Fort Worth Airport, 919 F2d 1079 (5th Cir.

1991). That case involved a Delta Airlines flight that crashed at DFW Airport when the flight

encountered downdraft windshear while attempting to land during a thunderstorm. Id. at 1084. The




                                                —12—
crew members ol the flight had observed the thunderstorm at the end of the runway and knew that

it contained windshear, but they made the decision to land there anyway. Id. at 1085. The district

court found the sole proximate cause of the catastrophe was the deliberate decision of the flight crew

to enter a storm cell despite having observed the lightning that clearly marked it as a thunderstorm.

Id. at 1087. The Fifth Circuit affirmed, concluding that although the flight controllers at the airport

were negligent in fluting to relay weather information to the aircraft, that negligence was not a

proximate cause of the crash because the flight crew already knew all the weather information. “Any

failure of the air traffic controllers to warn a pilot of the presence of a storm in his path cannot be

regarded as a continuing proximate cause after the pilot himself discovered its presence, appreciated

the danger, and decided to fly ahead into it” Id. at 1085 (quoting district court’s opinion). The Fifth

Circuit stated.

           [W]e cannot gainsay the [district] court’s apparent view that when Flight 191 chose
           to fly into a thunderstorm at a low altitude and speed it chose to dice with death.
                                                                                             .




           The court’s finding that the crew’s deliberate decision to land through a known
           thunderstorm located at the end of the runway, when they could easily have gone
           around, was the sole proximate cause of this disaster is not clearly erroneous.   .




id. at 1087—88. That case is distinguishable from the one before us because the crew members in

that case knew they were flying into a thunderstorm with windshear and appreciated the danger. In

this case, the evidence supports a finding that Holland and Edgerton reasonablybelieved the warning

light had malfunctioned and had no reason to know that the newly overhauled gearbox was about

to fail.

           American also cites MeL ennan v. American Eurocopter Corp., 245 F.3d 403 (5th Cir. 2001).

In that case, a helicopter crashed after running out of fuel. The pilot had ignored the low-fuel

warning light, failed to make proper calculations of fuel consumption, and knowingly continued to

fly without refueling after he reached the mandatory twenty-minute reserve. Id. at 410—14. The pilot




                                                 —13—
sued American. alleging the fuel gauge had stuck at around eighteen or eleven percent, came unstuck

at about three percent when the helicopter was almost out of fuel, and that American failed to warn

that the fuel gauge might be inaccurate. Id, at 413—14. The Fifth Circuit concluded the pilot failed

to establish proximate causation because, inasmuch as he disregarded the many warnings American

and the helicopter itself provided about the fuel gauge and being low on fuel, he failed to prove he

would have heeded any additional warnings. Id. at 433—34. The court concluded the causal

connection was too remote.

       MeL ennan is distinguishable from the case before us. In MeLennan, the low-fuel warning

light meant the helicopter was low on fuel and there was no proof the pilot would have heeded any

additional warning; while in this case, there is evidence that when only the oil-pressure warning light

comes on, there is a problem with the oil-pressure switch, and the warning light does not mean there

is low oil pressure. The evidence in this case also does not suggest that Holland and Edgerton would

have ignored further warnings. Instead, the evidence shows they were taking further precautions to

evaluate the problem.

        American also argues it was not foreseeable that Holland and Edgerton “would ignore

mandatory procedures in the manufacturer’s troubleshooting manual, take affirmative action to

bypass the warning system, a critical safety device, or contravene FAA regulations.”                 The

fault-isolation manual provides that the corrective action when only the oil-pressure warning light

illuminates is (1) to check the warning light electrical circuit, (2) to replace the oil-pressure switch,

and (3) if there is no electrical anomaly, to remove the gearbox for major overhaul, Edgerton

complied with step (1) by disconnecting the oil pressure switch and checking that the light coming

on was not caused by a short circuit, but he and Holland decided the aircraft could be flown back to

Duke in a ferry flight to complete the remaining steps. Stimpson and McCutchen testified this was




                                                 —14—
an appropriate decision. Although the flight manual states the warning lights must be otf before a

takeoff. Stimpson and McCutchen testified that this provision dd not apply to a ferry tlight. The

jury could conclude from the evidence that Edgerton’s disabling the oilpressure warning light did

not cause the crash. This determination is not so contrary to the evidence as to be clearly wrong and

unjust.

          American’s argument that Holland and Edgerton’s decision to perform a ferry flight of the

helicopter back to Duke was a superseding cause also fails because, where the risk resulting from

the intervening act is the same as the risk from the original actor’s negligence, the intervening act

cannot be classified as a superseding cause. columbia, 284 S,W.3d at 859. In this case, the risk

from American’s negligence was the same as the actual risk from Holland’s and Edgerton’s decision

to fly the helicopter knowing the oil-pressure light would be illuminated if it were connected:

catastrophic failure of the main rotor gearbox during flight and the resulting crash killing Holland.

                                             Cause in Fact

          American also argues that its negligence was not a cause in fact of the crash. “Cause in fact”

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

the harm would not have occurred. IfIS Cedai Treatment Ctr, ofDeSoto, Tex., Inc. v. Mason, 143

S.W.3d 794, 798—99 (Tex. 2003). Cause in fact is not established where the actor’s negligence does

no more than furnish a condition which makes the injuries possible. Id. In other words, the actor’s

conduct may be too attenuated from the resulting injuries to the plaintiff to be a substantial factor

in bringing about the harm. Id. American asserts its negligence furnished, at most, a condition that

allowed the subsequent negligent decisions of Edgerton and Holland to result in the crash.

          American first argues there was no cause in fact because the danger from American’s

negligence had “come to rest” before the second flight commenced. American argues,




                                                  —15—
        [he helicopter’s Ilist flight that ni2ht was dangerous. hut     the helicopter landed
       saiclv, its occupants deplaned, and the danger passed... With the helicopter on the
       ground, there was no danger this particular main rotor gearbox would hti 1 during
       flight, and there was no danger that as a result, the helicopter would crash. Taking
       the second tlight that night was inexplicable recklessness by Ci’s mechanic and pilot.

However, there is evidence that Holland and Edgerton’s actions in making the second flight were

not “inexpl icahle recklessness,’’ namely. Eurocopter s fault—isolation manual and the testimony of

the expert witnesses on piloting and maintaining this type of helicopter. This evidence showed the

oil—pressure warninu light meant the newly overhauled gearbox had a bad oil—pressure switch, a not

uncommon problem, which did not make the helicopter dangerous. Edgerton completed the fhult

isolation steps as far as he was able with the equipment he had with him, and he and Holland

approved flying what appeared to them to be a safe helicopter back to Duke to finish the

maintenance. Evidence before the jury showed this decision was normal within the industry.

       American relies on two cases in support of its argument that its negligence was not a cause

in fact of the crash:   Union Pump Co. v. Al/button. $98 S.W.2d 773 (Tex. 1995), and Be/I          v.



campbell, 434 S.W.2d 117 (Tex. 1968). In Union Pump, an employee at a chemical plant assisted

in extinguishing a fire at the plant caused by a defective pump. After the fire was extinguished, the

employee slipped and fell in some water or firefighting foam and was injured. She sued the pump’s

manufacturer, asserting that but for the pump fire, she would never have slipped on the water or

foam. Union Pump, $98 S.W.2d at 774. In Bell, a vehicle pulling a trailer on a highway rear-ended

another vehicle. In the accident, the trailer broke off and came to rest on the highway. People

stopped to help move the trailer off the highway. As they were doing so, another vehicle struck three

of the people, killing two of them. Bell, 434 S.W.2d at 119. The people struck in the second

accident sued the drivers in the first accident. Id. at 11 8.    In both cases, the supreme court

determined the defendants’ negligence was not a proximate cause because the forces generated by




                                                 16--
their negligence had come to rest when the plaintiffs’ injuries occurred, In Union Pump, the tire was

extinguished when the employee slipped due to the slick footing from the firefighting. In Bell, the

vehicles and unhooked trailer had come to rest befbre a passing car struck the people helping to

move the trailer out of the roadway. In these situations, the supreme court concluded the defendants’

negligent actions (making a pump that catches fire and rearending another vehicle) were too

remotely connected to the plaintiffs’ injuries to constitute the legal causes of those injuries. Union

Pump, 898 S.W.2d at 776: Bell, 434 S.W.2d at 122.

       In this case, however, the “forces” generated by American’s negligence had not come to rest.

In Union Piunp, all the potential injury from the fire caused by the negligently constructed pump

ceased as soon as the fire was extinguished. The employee was not injured in the fire, so her injuries

were not caused by the pump starting the fire. Union Pump, 898 S.W.2d at 776. In Bell, all the

potential injury from the first accident ceased when the vehicles came to rest. The people were not

injured in the initial accident, so their injuries were not caused by the defendants’ negligence in the

first accident. Bell, 434 S.W.2d at 122. in this case, however, the potential injury from American’s

negligence remained active in the form of the gearbox facing imminent failure. The danger created

by American’s negligence, imminent failure of the gearbox, remained active after the helicopter

landed safely at Alamance.

        American also asserts that cause in fact did not exist because American’s negligence did no

more than furnish a condition that made the injury possible—that is, it allowed Holland’s and

Edgerton’s negligence in deciding to fly the helicopter to cause the crash. See IHS Cedars, 143

S.W.3d at 799. American relies on JHS’ Cedars in support of this argument. hi that case, Mason was

a patient at IHS Cedars mental institution where she had voluntarily admitted herself for depression.

During her stay, she became friends with her roommate, Thomas. On the same day, both Mason and




                                                —17—
Ihomas requested to he released. ILL at 7%. Mason told the nurse she planned to spend time with

Thomas after her release, Id. at 79&—97. Mason’s and Thomas’s physicians released them the same

day without consulting with one another, The next day, Mason was riding in a car driven by Thomas

when Thomas had a psychotic episode, drove at high speed, swerved to avoid a dog in the road, lost

control of the car. and crashed injuring Mason. Id. at 797. Mason stied the doctors. the nurse, and

the clinic alleging negligence in failing to provide adequate care and treatment, inappropriately

deciding to discharge her. failing to adequately train physicians and staff, and failing to warn Mason

of the danger posed by Thomas. id. Mason argued that her uncorrected mental condition left her

vulnerable to Thomas’s manipulative and controlling behavior and caused Mason to be in the car

with Thomas. The supreme court concluded the alleged negligence may have allowed Mason to be

in the car with Thomas. hut it did not cause Thomas to experience a psychotic episode, drive wildly,

swerve to avoid the dog. or crash the car. Id. at XOl 02 (“It is clear, however, that Thomas’s

speeding and psychotic episode and swerving the car to miss the dog in the road caused Mason’s

injuries, not negligent treatment or negligent discharge.”). The defendants’ negligence merely

created the condition in which the accident occurred, but it did not cause the accident or Mason’s

injuries. Id.

          11-IS   Cedars   is distinguishable from the case before us because American’s faulty gearbox

did not merely furnish the condition that allowed the accident to occur. The faulty gearbox was the

reason the helicopter crashed.

          After considering all the evidence in the record, we conclude there is some evidence to

support the jury’s implicit finding that American’s negligence was a cause in fact of the accident,

and that finding is not so against the great weight and preponderance as to be clearly wrong and

unjust.




                                                     —l 8—
                                             Conchi sion

        Having determined there is legally and factually sufficient evidence that American’s

negligence was the cause in fact of the helicopter crash and that the crash was a foreseeable result

of that negligence, we conclude there is legally and factually sufficient evidence to support the jury’s

finding that American’s negligence was a proximate cause of the accident. Accordingly, we

conclude the trial court did not err by denying American’s motion forjudgment notwithstanding the

verdict and by overruling American’s motion for new trial on American’s contractual indemnity

claim. We overrule American’s first and second issues.

                                   INDEMNITY AGREEMENT

        In its third issue, American contends the trial court erred by not rendering judgment for

American because the jury’s answers entitled it to judgment on its cause of action fbr breach of the

indemnity agreement.

        The parties’ agreement contained a provision in which CJ agreed to indemnify American

against all losses, claims, and expenses including legal expenses with respect to defective work

“arising from services furnished and work performed” by Ci. The agreement also provided,

        [Ci’s] indemnity and hold harmless obligations specifically extend to any and all
        losses, damages, injuries, claims, demands and expenses, including legal expenses
        of any kind and nature, arising from [CJ’s] sole negligence. Without limiting the
        foregoing, in no event shall American Eurocopter be liable for any loss, damage,
        injury, or claim resulting from any matter, which could have been discovered by [Ci]
        through the exercise of reasonable diligence in connection with the undertaking of
        any inspection, maintenance, and/or repair performed by [CJ],

The jury found that Cl “performed defective work that resulted in any loss, damage, injury, demand

or expense to, or claim against” American, and that Cl “could have discovered through the exercise

of reasonable diligence in connection with the undertaking of any inspection, maintenance, and/or

repair a matter which resulted in any loss, damage or injury to, or claim against” American.




                                                 —19—
American argues that ii is entitled to judgment on its indemnity claim based on these jury findings.

        LI argues that the express negligence doctrine bars American’s claim lir indemnity. Under

that doctrine, parties seeking to indemm iv themselves for their own negligence must express that

intent in specific terms in the indemnity agreement. Fisk Flee. Co.       i’.   Cnstriu toev & Assoes.. Inc.,

$88 S.W.2d $13. 814 (Tex. I Qo)4) (“We hold that no oh ligation to indemnity an mdcmnitee for the

costs or expenses resulting from a claim   made   against   it ftr its   own negligence arises unless the

indemnification agreement complies with the express negligence test.”): Ethyl               Corp. v.   Daniel

Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987) (“The express negligence doctrine provides that

parties seeking to indemnify   the indemnitee from the consequences of its own negligence must

express that intent in specific terms.”).     The doctrine also applies to situations where the

indemnitee’s negligence proximately causes injury jointly and concurrently with the indemnitor’s

negligence.   In that situation, the indemnity provision must expressly provide for the parties’

concurrent negligence. Ethyl Corp., 725 S.W.2d at 70$. The doctrine is not an affirmative defense;

it is a rule of contract interpretation determinable as a matter of law. Fisk, 88$ S.W.2d at 814.

         All of American’s “losses, damages, injuries, claims, demands and expenses. including legal

expenses” arose out of the helicopter crash. Thejury Ibund American’s negligence was a proximate

cause of “the accident in question,” i.e., the helicopter crash. The last sentence in the indemnity

provision provides, “[w]ithout limiting the foregoing, in no event shall [American] be liable for any

loss, damage, injury, or claim resulting from any matter, which could have been discovered by [CJ]

through the exercise of reasonable diligence in connection with the undertaking of any inspection,

maintenance, and/or repair performed by [Ci 1.” In other words, the parties appeared to contemplate

that should damage result from American’s negligence, but CJ could have discovered that negligence

as   part of its inspection, maintenance, or repair, American would not be responsible for those




                                                —20—
losses—that is, American would not be responsible tbr its own negligence, and CJ would be required

to indemnify American based on the jury’s finding that the losses could have been discovered by Ci

through the exercise of reasonable diligence in its undertakings. Applying the express negligence

doctrine, we conclude the parties did not express their intent in clear, unambiguous terms within the

four corners of the contract as to both indemnification for American’s own negligence and

application to Ci’s concurrent negligence. See Storage & Processors, Inc. v. Reyes, 134 S.W.3d

190, 192 (Tex. 2004) (quoting Ethyl Corp. and stating under express negligence doctrine intent must

be specifically stated within lour corners of contract) Ethyl Coip 725 S W 2d at 708 (applying

express negligence doctrine to concurrent negligence).

        American’s argument that the express negligence doctrine does not apply because American

seeks indemnification for the consequences of Ci’s negligence and not for its own negligence is

unpersuasive. The supreme court addressed a similar argument in Ethyl Corp. The dispute there

originated from a worker’s compensation claim. When the employee of a construction company

sued the premises owner, the owner sought indemnity from the construction company. The jury in

the indemnity suit apportioned responsibility for the injuries ninety percent against the owner and

ten percent against the construction company. Following the jury’s verdict, the trial court granted

indemnity to the owner, and the court of appeals reversed the judgment based on its conclusion that

the indemnity provision did not clearly and unequivocally require indemnification for the owner’s

own negligence or the parties’ concurrent negligence. Affirming the appellate decision, the supreme

court adopted the express negligence doctrine and applied it to proportionate responsibility, stating,

        indemnitees seeking indemnity for the consequences of their own negligence which
        proximately causes injury jointly and concurrently with the indemnitor’s negligence
        must also meet the express negligence test.   .   In Texas, there exists no right to
                                                          .   .




        indemnity on a comparative basis   under the common   law.   .  Parties may contract
                                                                         .   .




        for comparative indemnity so long as they comply with the express negligence
           doctrine set out herein.

Ethyl Coip., 725 S.W.2d at 70809 (citations omitted).

           American also argues the express negligence doctrine is not implicated because the indemnity

clause between Ci and American does not reference American’s own negligence. As described

above, we disagree with such characterization. The agreement between Ci and American implicates

indemnification for American’s negligence in the event Ci could have discovered—through the

exercise of reasonable diligence in connection with its undertaking of any inspection, maintenance,

or repair—the matter causing the loss. The jury found both Ci’s and American’s negligence were

causes of the crash, which resulted in all of the losses for which American seeks indemnity. Because

the indemnity provision did not express in clear, unambiguous terms that Ci was indemni1”ing

American for its own negligence and that its indemnification applied if the loss was due to the

parties’ concurrent negligence, application of the express negligence doctrine bars American’s claim

for indemnity. See Ethyl Corp, 725 S.W.3d at 708. We overrule American’s third issue.

           Because of our determination of American’s third issue, we need not address its fourth issue.
                                                                                                  5

The parties have informed us they have reached an agreement as to the fifth issue; accordingly, we

need not address that issue.

                                                   BREACH OF WARRANTY

           In its sixth issue, American contends there is no evidence of an express warranty for which

money damages is a remedy. The jury found American failed to comply with an express warranty

that products overhauled by American would be free from defects in material and workmanship



      In its fourth issue, American contends thejury’s determination that there was insufficient evidence to find CJ’s actions were the “sole cause”
of American’s loss was immaterial and that CJ’s being the sole cause of American’s loss was established as a matter of law. Because the evidence
supports the jury’s verdict that American’s negligence was a proximate cause of “the accident in question.” and the express negligence doctrine
prohibits American from recovering on its indemnity claim, this issue is not material to the final disposition of the appeal and need not be addressed.
See TEX. R App. P. 47.1.
under normal use and service, and that the failure to comply with the warranty was a producing cause

of damages to CJ. The jury thund Cl’s damages were S7X,93562, which was the amount listed on

American’s invoice to Ci fbr the gearbox. The trial court rendered judgment for CJ for that amount.

       American contends there is no evidence Ci can recover damages because the express

warranty contained a disclaimer of liability and a limitation of remedy. American argues (I) the

agreement disclaimed any warranty if CJ failed to maintain and operate the helicopter in accordance

with the manuals, or if Cl misused, abused, or neglected the helicopter or its parts; and (2) the

remedy for breach of warranty was limited to repair or replacement of the warranted part.

       American’s warranty provided:

       7. LIMITED WARRANTY



               (c) Sellerwarrants all overhauled Products by. American Eurocopter Corp.
               to be free from defects in material and workmanship under normal use and
               service. Seller’s obligation under this warranty is limited to replacing or
               repairing parts that, at the time of any repair or replacement, shall have been
               recognized by Seller in sole discretion of Seller, as subject to this warranty




               (e) This warranty shall apply only to the extent the helicopter and the parts
               installed therein are operated and maintained in accordance with the
               instructions contained in the Flight Manual and the Maintenance Manual.



               (g) This warranty shall not apply to any helicopter or part which has been
               subject to misuse, common neglect, abuse, negligence or accident.

        To recover for breach of an express warranty, a plaintiff must prove:           (1) an express

affirmation of fact or promise by the seller relating to the goods; (2) that such affirmation of fact or

promise became a part of the basis of the bargain; (3) that the plaintiff relied upon said affirmation




                                                 —Li—
of fact or promise; (4) that the goods failed to comply with the affirmation of fact orpromise: (5) that

the plaintifiwas injured by such failure of the product to comply with the express warranty; and (6)

that such future was the proximate cause of the plaintiff’s injury. Great Am. Prods. v Permabond

IntL 94 S.W.3d 675, 681 (Tex. App—Austin 2002, pet. denied).

        Disclaimers of warranty and limitations of remedy in a warranty are not elements of the

plaintiffs cause of action; they are affirmative defenses. See Thomas v. Omar Jnvs., Inc., 156

S.W.3d 681, 684 (Tex. App.—Dallas 2004, no pet.); Great Am. Prods., 94 S.W.3d at 683.

American, not Ci, had the burden to prove these affirmative defenses. See Gentocor, Jnc. v.

Hamilton, 372 S.W.3d 140, 164 (Tex. 2012).           A no-evidence issue is appropriate when the

challenging party does not have the burden of proof a no-evidence issue is not appropriate when the

party bringing the issue has the burden of proof See Stauf/deher v. Lone Star Mud, Inc., 54 S.W.3d

810, 8 16 (Tex. App.—Texarkana 2001, no pet.); see aLso W. Wendell Hall et al., Hall ‘s Standards

of Review in Texas, 45 ST. MARY’s L.J. 3, 43 (2010). Because CJ had no burden of proof on these

defenses, American’s no-evidence issue lacks merit.

       Furthermore, American failed to preserve error as to its argument that the warranty’s

limitation of repair or replacement of a defective part barred Cl’s claim for damages. Nowhere in

American’s trial and post-trial motions did it argue that CJ ‘s breach-of-warranty claim was precluded

by the warranty’s limitation of remedy. Instead, American argued in those motions concerning the

breach of warranty that (1) the evidence supporting the jury’s findings on breach of warranty was

legally and factually insufficient; (2) CJ did not own the gearbox; (3) American did not sell or lease

the gearbox to CJ; (4) Cl suffered no harm from the destruction of the gearbox; (5) CJ lacked

standing to bring the breach of warranty claim because it did not own the gearbox; (6) CJ had no

evidence American breached the warranty; (7) CJ had no evidence it was damaged by any breach




                                                 —24—
of warranty; (8) Ci’s claim was barred because Ci breached the warranty’s requirement that Ci

inspect and maintain the helicopter in accordance with the manufacturer’s requirements and not

misuse, abuse, or neglect the parts; (9) collateral estoppel from Duke’s suit in North Carolina barred

CJ’s claim; and (10) the jury question on breach of warranty contained the wrong standard of

causation

       “The cardinal rule for preserving error is that an objection must be clear enough to give the

trial court an opportunity to correct it.” Arkorna Basin Exploration Co. v EMFAssocs, 1990-A, Ltd.,

249 S.W.3d 380, 387 (Tex. 2008).       However,     post-trial objections need not be as specific and

detailed as an appellate brief. Id. at 388. Although American pleaded the defense of limitation of

remedy, it never mentioned it during the trial or in any of the motions presented during or after the

trial. In this case, nothing in the motions could have alerted the trial court to the complaint that the

limitation of remedy in the warranty barred CJ’s claim, and nothing in the record indicates the trial

court was aware of this complaint,    f id.   (argument on appeal preserved because trial court was

aware of argument even though post-trial objection was not specific). We conclude American did

not preserve this complaint for appellate review.

        We overrule American’s sixth issue.

                                          CONCLUSION

       We affirm the trial court’s judgment.




                                                        LANA MYERS
                                                        JUSTICE


1 00342HF.P05
                                iIvurt uf AppriI
                       Fift1! Jtatrtrf uf Jtxa tt a11a
                                      JUDGMENT
A M E R I C AN F U R0C 0 PT E R                    Appeal from the 298th District Court of
CORPORATION, Appellant                             Dallas County, Texas. (Tr.Ct.No. 02-03974-
                                                   M).
No, 05-lO-00342-CV           V.                    Opinion delivered by Justice Myers, Justices
                                                   Murphy and Fillmore participating.
Ci SYSTEMS AVIATION GROUP, Appellee

        This Court’s judgment of July 18, 2012 is VACATED; the following is now the judgment
of this Court:
        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellee CJ Systems Aviation Group recover its costs of this
appeal and the full amount of the trial court’s judgment from appellant American Eurocopter
Corporation and Travelers Casualty and Surety Company of America as surety on appellant’s
supersedeas bond.


Judgment entered March 8, 2013.




                                                   LANA YERS          U
                                                   JUSTICE
