Laird Doctor and Linda F. Doctor v. Howard E. Pardue and Experimental Aircraft Association, Inc.

Opinion issued September 15, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00899-CV

__________

LAIRD DOCTOR AND LINDA DOCTOR, Appellants

V.

HOWARD E. PARDUE AND EXPERIMENTAL AIRCRAFT

ASSOCIATION, INC., Appellee s

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 1999-52227

O P I N I O N

Appellants, Laird Doctor (“Lad”) and Linda Doctor, challenge the trial court’s

judgment entered after a jury trial in their negligence suit against appellees,

Experimental Aircraft Association, Inc. (“EAA”) and Howard Pardue, for personal

injuries that Lad sustained in an airplane collision that occurred in Wisconsin . The

Doctors present six issues for our review, seeking a reversal of the trial court’s

judgment, which ordered that they recover $500,000 from EAA and take nothing

from Pardue . The Doctors contend that the trial court erred in concluding that Texas

was the state with the most significant relationship to the issue of charitable immunity

and in applying the Texas Charitable Immunity and Liability Act (the “Act”)

to limit

their award against EAA and to completely immunize Pardue. The Doctors also

contend that the evidence is factually insufficient to support the jury’s findings of

zero damages for Lad’s past and future physical pain and mental anguish, past and

future disfigurement, and past and future physical impairment; zero damages for

Lad’s past medical expenses; $2.5 million in damages for Lad’s future medical

expenses; zero damages for Linda’s past loss of consortium; and $50,000 for Linda’s

future loss of consortium.

We reverse and remand for a new trial.

Factual and Procedural Background

EAA, a not-for-profit charitable corporation incorporated under the laws of

Wisconsin, maintains its principal place of business in Wisconsin . Although it is not

registered to do business in Texas, EAA is subject to the general jurisdiction of Texas

courts.

EAA is an organization dedicated to preserving the grassroots aspect of

aviation and encouraging families and children to become interested in aviation. It

assists governmental agencies in the development of aviation activities and promotes

and encourages aviation safety, aviation research and development, and non-commercial aviation. Every year, EAA hosts a convention and sponsors an air show,

known as “AirVenture,” in Oshkosh, Wisconsin.

In July 1999, Lad was rendered a quadriplegic at the air show when the vintage

World War II Corsair aircraft that he was piloting collided on the runway with

another aircraft piloted by Pardue. At the time of the collision, Lad was working as

a professional pilot and an employee of the Corsair’s owner, the Cavanaugh Flight

Museum (“CFM”), located in Addison, Texas. Pardue was piloting an aircraft owned

by the Breckenridge Air Museum (“BAM”), a charitable organization located in

Breckenridge, Texas , and he was serving as a BAM volunteer. Lad and Pardue, both

Texas residents, attended the air show in Wisconsin to exhibit the aircrafts on behalf

of their respective organizations.

The Doctors sued EAA and Pardue for negligence, seeking damages “under the

laws of the State of Texas.” EAA filed a motion for partial summary judgment

seeking a ruling that, based on the Act , its liability to the Doctors was limited to

$500,000. Pardue also filed a motion for partial summary judgment seeking a ruling

that, based on the Act, as a volunteer he was entitled to absolute immunity from

liability for the Doctors’ injuries. The Doctors then filed an amended petition

asserting that Wisconsin law should govern the issue of charitable immunity. EAA

and Pardue also filed pretrial motions for determination of applicable law, arguing

that Texas law should govern and that the Act should apply. The trial court carried

these motions through trial.

The jury, finding that the negligence of EAA, Pardue, and Lad proximately

caused the collision, attributed 25% of the negligence to EAA, 25% of the negligence

to Pardue, and 50% of the negligence to Lad. The jury awarded zero damages for

Lad’s past and future physical pain and mental anguish, past and future

disfigurement, past and future physical impairment, and past medical expenses; $2.5

million in damages for Lad’s future medical expenses; zero damages for Linda’s past

loss of consortium; and $50,000 for Linda’s future loss of consortium. The jury

further found that, at the time of the collision, EAA was a charitable organization and

that Pardue was acting in good faith and in the course and scope of his duties and

functions as a volunteer of a charitable organization. Based on these findings, the

trial court applied the limitations set forth in the Act and rendered final judgment that

the Doctors recover $500,000 from EAA and take nothing from Pardue.

Choice of Law

In their fifth issue, the Doctors argue that the trial court erred in applying the

Act to limit EAA’s liability because Wisconsin had the most significant relationship

to the charitable immunity issue as EAA

is a Wisconsin organization, the acts and

omissions underlying the jury’s negligence finding occurred in Wisconsin, and the

crash and resultant injury occurred in Wisconsin. The Doctors also argue that if the

trial court’s application of the Act is affirmed by this Court, Texas corporations will

lose the protections provided under the Act when sued in foreign states by foreign

plaintiffs, even for injuries arising out of charitable services performed in Texas.

The determination of which state’s law applies is a question for the court.

Torrington Co. v. Stutzman , 46 S.W.3d 829, 848 (Tex. 2000). Therefore, we must

review the trial court’s decision to apply Texas law to this case de novo. Minn.

Mining & Mfg. Co. v. Nishika Ltd. , 955 S.W.2d 853, 856 (Tex. 1996); Tracker

Marine, L.P. v. Ogle , 108 S.W.3d 349, 352 (Tex. App.—Houston [14th Dist.] 2003,

no pet.). Texas courts use the “most significant relationship” test to decide choice of

law issues. Torrington Co. , 46 S.W.3d at 848 ; Hughes Wood Prods., Inc. v. Wagner ,

18 S.W.3d 202, 205 (Tex. 2000) ; see also Restatement (Second) of Conflict of

Laws §§ 6, 145 (1971). Under that test, a court must consider which state’s law has

the most significant relationship “to the particular substantive issue to be resolved.”

Hughes Wood Prods., Inc. , 18 S.W.3d at 205 .

EAA argues that the trial court correctly applied the Act to reduce the jury’s

damages award to $500,000 because Texas is the state with the most significant

relationship “to the discrete issue of the amount of compensatory damages”

recoverable by the Doctors. EAA asserts that Texas has an overriding interest in

reducing the liability exposure and limiting compensatory damage awards against

charitable organizations, including those not incorporated in Texas, like EAA. In

support of its argument, EAA relies on Torrington , in which the plaintiffs argued in

favor of application of Texas law on damages, while the defendants argued for

application of Michigan law, which did not permit recovery of mental anguish

damages, or Nebraska law, which only permitted recovery for pecuniary losses. 46

S.W.3d at 848 n.16.

However, the issue here, unlike the issue presented to the court in Torrington ,

does not directly relate to the type of damages recoverable by plaintiffs, but instead

relates to protections afforded to a certain class of defendants—charities and

volunteers, for a certain type of conduct—performance of charitable services. We

note that the doctrine of charitable immunity has been treated as an affirmative

defense that must be pleaded and proven by parties seeking its application. See Tex.

Dep’t of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999) (stating that immunity from

liability, like other defenses to liability, must be pleaded and proven and can be

waived); Shoemake v. Fogel, Ltd. , 826 S.W.2d 933, 939 (Tex. 1992) (stating that

governmental immunity and charitable immunity can be waived by failure to assert

them as affirmative defenses) (citing Davis v. City of San Antonio , 752 S.W.2d 518,

520 (Tex. 1988)) . The central issue disputed by the parties in this case, distinct from

the issue in Torrington , is whether the trial court properly limited the liability of EAA

and completely immunized Pardue pursuant to the provisions of the Texas Charitable

Immunity and Liability Act . We thus hold that the underlying particular substantive

issue presented to this court is one of “charitable immunity.”

Accordingly, we now consider, under the most significant relationship test,

whether the law of Wisconsin or Texas should apply. We begin our choice of law

analysis by consulting section 168 of the Restatement of Conflict of Laws, which

specifically addresses charitable immunity. Restatement (Second) of Conflict

of Laws § 168 (1971) ; see also Hughes Wood Prods., Inc. , 18 S.W.3d at 206 n.2

(stating that “[this] Court has often applied more specific sections of the Restatement

to address particular choice of law issues”); Robertson v. Estate of McKnight , 609

S.W.2d 534, 536 (Tex. 1980) (applying section 169 of Restatement to determine

choice of law on issue of interspousal tort immunity). Section 168 provides that the

law selected by application of section 145 of the Restatement determines the issue of

charitable immunity. Restatement (Second) of Conflict of Laws § 168 . The

comments to section 168 further provide that the determination of the applicable law

should be made in light of the principles set forth in section 6 . Restatement

(Second) of Conflict of Laws § 168 cmt. b .

Section 6 sets out the following factors relevant in a choice of law analysis:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of the other interested states and the relative

interests of those states in determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability, and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6 (2); see also Hughes Wood

Prods., Inc. , 18 S.W.3d at 205 . In tort actions, the needs of interstate and

international systems, the relevant policies of the forum, the relevant policies of other

interested states, and the ease in the determination and application of the law to be

applied assume greater importance. Restatement (Second) of Conflict of Laws

§ 145 cmt. b.

Section 145 states that the following contacts are to be taken into account when

applying the principles of section 6 to determine the law applicable to a particular

issue:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicile, residence, nationality, place of incorporation and

place of business of the parties, and

(d) the place where the relationship, if any, between the parties is

centered.

Restatement (Second) of Conflict of Laws § 145(2) (1971). These contacts are

to be evaluated according to their relative importance with respect to the particular

issue. Id . Furthermore, the number of contacts with a state is not determinative.

Torrington Co. , 46 S.W.3d at 848 . Rather, a court must evaluate the contacts in light

of the state policies underlying the particular substantive issue . Id .

The facts controlling the choice of law analysis here are largely undisputed.

Lad’s injury occurred in Wisconsin, as did the conduct causing the injury. See

Experimental Aircraft Ass’n, Inc. v. Doctor , 76 S.W.3d 496 , 504–05 (Tex.

App.—Houston [14th Dist.] 2002, no pet.) (agreeing with EAA’s contention that

there was no evidence to support finding of specific jurisdiction in this case). At the

time of the collision, although the Doctors and Pardue were Texas residents, EAA

was incorporated in Wisconsin and maintained its principal place of business in

Wisconsin.

In regard to the relevant policies of the forum, we note that Texas has abolished

the common-law doctrine of charitable immunity. Howle v. Camp Amon Carter , 470

S.W.2d 629, 630 (Tex. 1971); Sprague v. Mem’l Baptist Hosp. Sys. , 580 S.W.2d 1,

2 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.). However, in 1987,

the Texas Legislature enacted the Texas Charitable Immunity and Liability Act,

limiting the liability of charitable organizations and immunizing volunteers who meet

certain conditions . Tex. Civ. Prac. & Rem. Code Ann . §§ 84.001–.008 (Vernon

Supp. 2004-2005).

Specifically, in any civil action brought against a nonhospital

charitable organization for damages based on an act or omission by the organization

or its employees or volunteers, the liability of the organization is limited to a

maximum of $500,000 for each person and $1,000,000 for each single occurrence of

bodily injury or death. Tex. Civ. Prac. & Rem. Code Ann . § 84.006. The

Legislature passed the Act with the following findings and purposes:

(1) robust, active, bona fide, and well-supported charitable

organizations are needed within Texas to perform essential and

needed services;

(2) the willingness of volunteers to offer their services to these

organizations is deterred by the perception of personal liability

arising out of the services rendered to these organizations ;

(3) because of these concerns over personal liability, volunteers are

withdrawing from services in all capacities;

(4) these same organizations have a further problem in obtaining and

affording liability insurance for the organization and its

employees and volunteers;

(5) these problems combine to diminish the services being provided

to Texas and local communities because of higher costs and fewer

programs;

(6) the citizens of this state have an overriding interest in the

continued and increased delivery of these services that must be

balanced with other policy considerations; and

(7) because of the above conditions and policy considerations, it is

the purpose of this Act to reduce the liability exposure and

insurance costs of these organizations and their employees and

volunteers in order to encourage volunteer services and maximize

the resources devoted to delivering these services.

Tex. Civ. Prac. & Rem. Code Ann . § 84.002 (Vernon Supp. 2004-2005) (emphasis

added).

Like Texas, Wisconsin has also essentially eliminated common-law charitable

immunity. See Lewis v. Physicians Insur. Co. of Wisconsin , 627 N.W.2d 484, 492

(Wis. 2001) (noting that charitable immunity doctrine in Wisconsin is largely

defunct); Szarzynski v. YMCA , 517 N.W.2d 135, 141 (Wis. 1994) (citing Widell v.

Holy Trinity Catholic Church , 121 N.W.2d 249, 251 (Wis. 1963) (stating that

immunity for charitable and religious organizations has been eliminated by courts)).

Wisconsin eliminated common-law charitable immunity on public policy grounds.

In Widell , the Wisconsin Supreme Court stated:

When an institution owes a duty of care to another and, as a result

of carrying on its activities through agents whether the enterprise

or activity involves financial gain or not and no matter how lofty

the purpose or motive, injures another either directly or through

agents the breach of duty ought not be excused or justified on the

grounds of the laudable purpose or the public benefit of the

activity causing the injury. . . . Certainly institutions teaching

divine justice, the dignity of man and his obligations to his

fellowmen and to his Creator would not claim on the basis of their

teachings that they ought to be exempt from repairing the injury

done by themselves or their agents to another.

Id . at 254; see also Kojis v. Doctors Hosp. , 107 N.W.2d 131 , 133–34 (Wis. 1961)

(stating that charitable hospitals are no longer civilly immune because they are now

“larger in size, better endowed, and on more sound economic basis” and that

“insurance covering their liability is available and prudent management would dictate

that such protection be purchased”). However, following the elimination of common-law charitable immunity in Wisconsin, the Wisconsin Legislature did not enact laws,

similar to those enacted in Texas, insulating charities from liability for injuries arising

out of the performance of charitable services.

With these policy considerations in mind, we note that the injury and the

conduct occurred in Wisconsin , where EAA is incorporated and maintains its only

offices. Also, although EAA maintains contacts with Texas sufficient to support a

finding of general jurisdiction, none of its Texas contacts were related to the aircraft

collision in this case. We thus conclude that Wisconsin has the dominant public

policy interest in determining whether EAA, a not-for-profit charitable organization

incorporated under the laws of Wisconsin, should be held immune from tort liability

for the collision that occurred in Wisconsin.

Applying the protections afforded in

the Act to EAA for liability arising from the activities it conducted exclusively in

Wisconsin would be contrary to the policy of Wisconsin.

Wisconsin has expressly

stated its policy that charities conducting activities which cause injuries should

generally not be immune from liability for those injuries. As for the relevant policies

of Texas, we note that although the Act is not expressly limited to organizations

incorporated in Texas, the express purpose of the Act is to encourage charitable

organizations to perform charitable services “within Texas. ” Tex. Civ. Prac. &

Rem. Code Ann . § 84.002 (1). Thus, the purposes sought to be achieved by the Act

would not be furthered by applying the Act to protect EAA, a Wisconsin-based

charitable organization, from liability arising out of a charitable event that it

conducted in Wisconsin.

We also note that EAA could have no justified expectation that it would be

entitled to the protections afforded under the Act for liability arising out of its

Wisconsin air show. The record indicates that volunteers from all over the country

participated in the EAA convention and air show, and any expectation by EAA that

it might be immune from liability for injuries sustained to participants, depending

upon the residence of the participants who were injured, would be unreasonable. Had

a Wisconsin resident, or a resident of another State without charitable immunity

protections similar to those available in Texas, been injured, EAA would not have any

claim to charitable immunity.

Finally, in regard to whether the application of Wisconsin law furthers the

interests of certainty, predictability, and uniformity of result, we note that these

interests are important when a party is likely to give advance thought to the legal

consequences of its actions. Restatement (Second) of Conflict of Laws § 145

cmt. i . Wisconsin does not provide charitable immunity, yet EAA elects to maintain

its only offices in Wisconsin and to conduct its annual convention and air show in

Wisconsin. Here, if we were to conclude that the domicile of the injured party or the

forum of the suit were the controlling factors in determining what law to apply on the

issue of charitable immunity, this conclusion would lead to unpredictable and non-uniform results. If we were to accept EAA’s argument, by the same logic, a non-resident of Texas, injured in Texas by acts or omissions of a charity, incorporated in

Texas and performing services in Texas, would undoubtedly pursue his claims against

the charity in a non-Texas forum and argue against application of the Act. Such a

result would be contrary to the clear purposes of the Act, which is to limit charities’

liability arising out of services performed in Texas, regardless of the forum of the suit

or the residence of the injured party.

In considering the “ease in the determination and application of the law to be

applied,” we recognize that Texas is the forum state and that the parties acquiesced

to the trial court’s application of Texas law to the liability issues. See Torrington Co. ,

46 S.W.3d at 850 . We also note that the Doctors and Pardue are residents of Texas.

However, after considering the choice of law principles in section 6 and the factors

in section 145, we hold that Wisconsin is the State with the most significant

relationship to the issue of charitable immunity and that Texas does not have an

overriding interest in seeing the Act applied to this case.

In support of its argument for application of Texas law, EAA asserts that

(1) EAA has been held to be subject to the general jurisdiction of Texas courts,

(2) Wisconsin interests would be served by applying Texas law, and (3) the Act

applies to foreign charities doing business in Texas. First, our sister court’s finding

that “Texas has a greater, or at least equal, interest with that of all other states in

adjudicating this claim,” was made in the context of a general jurisdiction analysis,

which is completely distinct from the choice of law analysis undertaken by this Court.

See Experimental Aircraft Ass’n, Inc. , 76 S.W.3d at 509 . The fact that EAA has been

held subject to general jurisdiction in Texas does not support EAA’s argument that

it should be entitled to the benefits and protections of the Act for liability arising out

of conduct unrelated to its Texas contacts.

Second, EAA’s argument that application of Texas law would serve the

“interest of Wisconsin by reducing the damages awarded against its resident

charitable organization” is without merit. Wisconsin has made a policy decision to

eliminate charitable immunity, and has specifically elected not to offer protections to

its charitable organizations similar to those available in Texas.

Texas courts have

no authority to change Wisconsin public policy.

Third, the Act does not purport to encompass all charities incorporated in other

states that do some business in Texas. Instead, the Act plainly states that it is

intended to encourage the performance of charitable services within Texas. It does

not indicate that simply because a charity has been found to maintain continuous and

systematic contacts with Texas, it should be entitled to protections under Texas law

for conduct and injuries occurring outside of Texas. Although a charitable

organization that is incorporated in another state but performs services in Texas for

the benefit of Texas residents may have a legitimate claim to the protections afforded

under the Act, EAA is seeking protection from liability for conduct which occurred

outside of Texas and which was not specifically directed at Texas residents.

Accordingly, we hold that the trial court erred in concluding that Texas was the

state with the most significant relationship to the issue of charitable immunity as to

EAA and in applying the Act to limit the liability of EAA.

We sustain appellants’ fifth issue.

Volunteer Immunity

In their sixth issue, the Doctors argue that the trial court erred in applying the

Act to completely immunize Pardue because their injuries were caused by Pardue’s

negligent operation or use of an airplane . The Doctors further argue that because the

question of whether there has been a statutory waiver of immunity is a question for

the court, the trial court erred in submitting a question to the jury concerning the

application of the Act to Pardue.

Pardue argues that the Act immunizes him because his alleged negligence did

not involve the operation or use of an airplane and there was no nexus between his

alleged negligent operation or use of an airplane and the Doctors’ injuries. He

contends that the Doctors’ theory of liability was confined to their allegations that

Pardue’s negligence during his pre-flight briefing caused the collision and asserts that

the Doctors “unwaveringly focused not on Pardue’s operation or use of an airplane

but upon Pardue’s inadequate briefing and poor communication.” He also asserts that

the Doctors’ evidence in support of their theory supports a deemed finding by the jury

that the Doctors’ injuries were not proximately caused by Pardue’s negligent

operation or use of an airplane.

The Act provides in relevant part:

(b) Except as provided by Subsection (c) of this section . . . a

volunteer who is serving as a direct service volunteer of a

charitable organization is immune from civil liability for

any act or omission resulting in death, damage or injury if

the volunteer was acting in good faith and in the course and

scope of his duties or functions within the organization.

(c) A volunteer of a charitable organization is liable to a

person for death, damage, or injury to the person or his

property proximately caused by any act or omission arising

from the operation or use of any motor-driven equipment,

including an airplane , to the extent insurance coverage is

required . . . and to the extent of any existing insurance

coverage applicable to the act or omission.

Act of June 1, 1987, 70th Leg., ch. 370, § 1, 1987 Tex. Gen. Laws 1808 (amended

2003) (current version at Tex. Civ. Prac. & Rem. Code Ann . § 84.004 (Vernon

2005) (emphasis added)).

The charge contained a question that asked the jury whether Pardue “was

acting in good faith and in the course and scope of his duties and functions” as a

volunteer in a charitable organization at the time of the occurrence in question. The

charge did not contain any question as to whether the Doctors’ injuries were

proximately caused by an act or omission arising from the operation or use of an

airplane, and neither party requested a submission on this issue. Instead, the charge

simply asked the jury whether the negligence of Pardue caused the occurrence in

question.

During the charge conference, the Doctors objected to the submission of the

question regarding Pardue’s volunteer status as “not relevant since [all parties] agreed

that Mr. Pardue is limited to the $175 million in coverage.” It appears from the

record that, by making this objection, the Doctors conceded that, if the Act properly

applied, Pardue was a volunteer and he was entitled to the protections afforded under

subsection (c) of section 84.004, and thus could be held liable only to the extent of

any existing insurance coverage applicable to Pardue’s alleged acts or omissions.

The court overruled the Doctors’ objection, and submitted a question about Pardue’s

volunteer status.

The jury found that Pardue was acting in good faith and in the course and scope

of his duties and functions as a volunteer in a charitable organization at the time of

the collision , and the trial court, based on this finding, rendered final judgment that

the Doctors take nothing from Pardue. There is nothing in the record to indicate why

the trial court applied section 84.004(b), immunizing Pardue from liability, instead

of applying subsection (c), and limiting Pardue’s liability “to the extent of any

existing insurance coverage applicable.”

The Doctors did not specifically raise this issue in their motion for new trial or

in their motion to modify, correct, or reform the judgment. Instead, the Doctors

contended that the evidence was factually insufficient to support the jury’s finding

that Pardue was acting as a volunteer in a charitable organization at the time of the

collision and, alternatively, that the jury finding on this issue was immaterial since

Wisconsin law, which should have been applied pursuant to the most significant

relationship test, did not provide immunity for Pardue.

However, in their motion

to disregard jury findings and for judgment notwithstanding the verdict, filed after the

trial court entered a take-nothing judgment in favor of Pardue, the Doctors argued that

the jury’s finding that Pardue was acting as a volunteer should be disregarded because

the evidence established, as a matter of law, that the Doctors’ injuries were caused by

Pardue’s acts or omissions arising from the operation or use of an airplane.

Here, the record reveals that the Doctors alleged, and presented evidence at

trial, that Pardue, in his role as a flight leader and participant in the air show,

negligently caused the collision. While EAA and Pardue vigorously disputed liability

at trial, the jury apportioned 25% liability to EAA and 25% liability to Pardue, and

neither defendant challenges the legal or factual sufficiency of the evidence

supporting those negligence findings. The Doctors did assert and did offer testimony

concerning the adequacy of the pre-flight briefing provided by Pardue and Pardue’s

execution of the flight plan and his communication to the other pilots, before and

during the run up and during the flight in question. However, Pardue’s argument that

there was no nexus between his alleged negligent operation or use of an airplane and

the Doctors’ injuries necessarily fails. The jury found that the negligence of Pardue

caused the occurrence in question. Any such negligence in regard to Pardue’s pre-flight briefing, execution of the flight plan, and/or communication with other pilots

directly concerned his operation and use of his aircraft. More importantly, both Lad

and Pardue were piloting their planes at the time of the collision. The bottom line is

that the evidence conclusively shows that Lad was injured when, in the course of

performing in the air show, his aircraft collided on the runway with an aircraft piloted

by Pardue. Thus, the evidence establishes, as a matter of law, that the Doctors’

injuries were proximately caused by an act or omission “arising from the operation

or use of . . . an airplane.”

Tex. Civ. Prac. & Rem. Code Ann . § 84.004(c).

Accordingly, we hold that the trial court erred in not applying section 84.004(c) of

the Act, limiting the liability of Pardue to the extent that he possessed any applicable

insurance coverage.

Alternatively, Pardue argues that the Doctors waived any error based on their

contention that their injuries were proximately caused by Pardue’s negligent

operation or use of an airplane because they failed to request a jury question on this

issue, object to this omission from the charge, obtain written findings necessary to

support a judgment of liability, and object to the trial court’s take-nothing judgment

on the grounds of legally or factually insufficient evidence. The Doctors, however,

argued in a post-judgment motion that the evidence established, as a matter of law,

that their injuries were caused by Pardue’s acts or omissions arising from the

operation or use of an airplane . Pardue emphasizes that this argument was made in

the Doctors’ “motion to disregard jury findings and for judgment nov” rather than in

their motion for new trial or in their motion to modify, correct, or reform judgment .

The effect of a motion depends on the nature of the instrument, and we look to

an instrument’s substance rather than its form. Finley v. J.C. Pace Ltd. , 4 S.W.3d

319, 320 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The substance of a motion

is not determined solely from its caption or introduction, but instead is gleaned from

the body of the motion and the prayer for relief. Id . Furthermore, the supreme court

has stated that “a timely filed post-judgment motion that seeks a substantive change

in an existing judgment qualifies as a motion to modify under Rule 329b(g).” Lane

Bank Equip. Co. v. Smith S. Equip. Co. , 10 S.W.3d 308, 314 (Tex. 2000); see also

Tex. R. Civ. P. 329b(g); Ramirez v. Williams Bros. Constr. Co. , 870 S.W.2d 551, 552

(Tex. App.—Houston [1st Dist.] 1993, no writ); Brazos Elec. Power Coop., Inc. v.

Callejo , 734 S.W.2d 126, 129 (Tex. App.—Dallas 1987, no writ).

Here, after the entry of the final judgment, which provided absolute immunity

to Pardue, the Doctors contemporaneously filed multiple post-judgment motions,

including a motion for new trial, a motion to modify, correct, or reform the judgment,

and a motion to disregard jury findings and for judgment notwithstanding the verdict .

In their argument that the evidence established, as a matter of law, that the Doctors’

injuries were caused by Pardue’s acts or omissions arising from the operation or use

of an airplane , it is readily apparent that the Doctors were seeking a substantive

change in the judgment. We thus conclude that appellants preserved this issue for our

review.

Having held that the trial court erred in not applying section 84.004(c) of the

Act and limiting the liability of Pardue to the extent that he possessed any applicable

insurance coverage, we further hold that the trial court erred in rendering a take-nothing judgment in favor of Pardue.

We sustain appellants’ sixth issue.

Damages

In their first issue, the Doctors argue that, because it is undisputed that Lad

suffered catastrophic injuries that rendered him a quadriplegic, the jury’s zero damage

findings for intangible damages, including past and future physical impairment, past

and future mental anguish, and past and future disfigurement, are against the great

weight and preponderance of the evidence. In their second issue, the Doctors argue

that the jury’s zero damage finding for past medical expenses is against the great

weight and preponderance of the evidence because there was uncontroverted evidence

of approximately $400,000 in past medical expenses. In their third issue, the Doctors

argue that the jury’s award of $2.5 million in damages for future medical expenses

is against the great weight and preponderance of the evidence because EAA’s and the

Doctors’ expert testimony established a range of $5.3 million to $8.1 million for

future medical expenses. In their fourth issue, the Doctors argue that because there

is uncontroverted evidence of Linda’s loss of consortium as a result of Lad’s injuries,

the jury’s finding of zero damages for Linda’s past loss of consortium and $50,000

in damages for Linda’s future loss of consortium are against the great weight and

preponderance of the evidence.

EAA and Pardue do not respond to the Doctors’ first four issues.

Standard of Review

To sustain a challenge to the factual sufficiency of a jury’s failure to award

damages or its award of inadequate damages, we consider and weigh all the evidence,

both supporting and against the findings, in order to decide whether the verdict

should be set aside. Pool v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986);

Prescott v. Kroger Co. , 877 S.W.2d 373, 374 (Tex. App.—Houston [1st Dist.] 1994,

writ denied). We will uphold the jury’s verdict unless it is so against the great weight

and preponderance of the evidence as to be manifestly unjust or shocking to the

conscience. Pool , 715 S.W.2d at 635 ; Prescott , 877 S.W.2d at 374 . We may not

merely substitute our judgment for that of the jury. Pool , 715 S.W.2d at 635 . We

note that the jury is the sole judge of the credibility of witnesses and the weight to be

given to their testimony. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757,

761 (Tex. 2003). When, as in this case, the jury’s failure to find greater damages in

more than one overlapping category is challenged, we must first determine if the

evidence unique to each category is factually sufficient. Id. at 775 .

If it is not, we

must then consider all the overlapping evidence, together with the evidence unique

to each category, to determine if the total amount awarded in the overlapping

categories is factually sufficient. Id .

The Court’s Charge

The charge asked the jury what sum of money would fairly and reasonably

compensate Lad for his injuries resulting from the collision. It required the jury to

answer separately for the following elements of damages: (1) physical pain and

mental anguish sustained in the past; (2) physical pain and mental anguish that, in

reasonable probability, will be sustained in the future; (3) disfigurement sustained in

the past; (4) disfigurement that, in reasonable probability, will be sustained in the

future; (5) physical impairment sustained in the past; (6) physical impairment that, in

reasonable probability, will be sustained in the future; (7) reasonable expenses of

necessary medical care in the past; and (8) reasonable expenses of necessary medical

care that, in reasonable probability, will be sustained in the future . The charge also

asked the jury what sum of money would fairly and reasonably compensate Linda for

her past and future loss of consortium. It instructed the jury to “consider the elements

of damages listed and none other,” to “consider each element separately,” and to “not

include damages for one element in any other element.”

In regard to Lad, the jury awarded $2.5 million in damages for future medical

expenses and zero damages for past and future physical pain and mental anguish, past

and future disfigurement, past and future physical impairment, and past medical

expenses. In regard to Linda, the jury awarded zero damages for past loss of

consortium and $50,000 for future loss of consortium.

The Evidence

In our determination of whether the verdict should be set aside, we now

consider and weigh all the evidence, both supporting and against these findings.

Past and future physical impairment, physical pain and mental anguish , and disfigurement

In order to recover damages for physical impairment, “the effect of any

physical impairment must be substantial and extend beyond any pain, suffering,

mental anguish, lost wages or diminished earning capacity.” Golden Eagle Archery,

Inc. , 116 S.W.3d at 772 . Moreover, the “loss of enjoyment of life” may be considered

as a factor in assessing damages for physical impairment. Id . In order to recover

mental anguish damages, a plaintiff must establish “a high degree of mental pain and

distress” that is “more than mere worry, anxiety, vexation, embarrassment, or anger.”

Parkway Co. v. Woodruff , 901 S.W.2d 434, 444 (Tex. 1995). Disfigurement has been

defined as that which impairs the appearance of a person, or that which renders

unsightly, misshapen or imperfect, or deforms in some manner. Goldman v. Torres ,

341 S.W.2d 154, 160 (Tex. 1960); Sunbridge Healthcare Corp. v. Penny , 160 S.W.3d

230, 252 (Tex. App.—Texarkana 2005, no pet.).

Here, the undisputed evidence establishes that Lad suffered a spinal cord injury

in the collision and was rendered a quadriplegic. Lad has a “high level quadriplegia”

and is no longer able to walk or move his legs, arms, or hands. He suffers from

substantial swelling as a result of his inability to move his limbs. He has feeling only

in his face and is able to power his wheelchair only by using his head and mouth. Lad

has significant respiratory problems, his breathing muscles are impaired, and he

requires daily breathing treatments and nighttime ventilation. At the time of trial, he

required ventilator treatments three to four times daily and Lad’s physician testified

that, if his condition persisted, he would always require ventilation . As a result of the

collision, Lad’s diaphragm is abnormal. He fatigues when he talks for extended

periods of time, and as he talks, carbon dioxide builds up in his lungs, which causes

him to suffer from confusion and disorientation.

Lad is not able to care for himself. He has no bladder or bowel control and

must undergo bowel treatments daily. He can be transferred from his bed to his

wheelchair only with the assistance of at least two other people. He must use special

seats, mattresses, and other equipment. He must be repositioned every thirty minutes

to prevent skin problems, and must have his skin brushed every day. As Lad ages,

his risk of skin breakdown will increase and his immune system will continue to

decline. He also has spasms and tremors when he is touched.

Lad has suffered numerous medical complications related to his spinal cord

injury that have made his condition very fragile. His condition has caused profound

osteoporosis, and he cannot control his body temperature, which may quickly reach

as high as 105 degrees or as low as 94 degrees. He suffers from life-threatening

blood-pressure problems. Lad does not sleep well; he wakes up every two to three

hours, and sometimes only sleeps two to three hours a night.

Moreover, Lad’s condition has worsened since the collision, and the level at

which he has no feeling has risen. At the time of trial, surgery was planned in hopes

of improving his condition. However, it is undisputed that Lad will always be a

quadriplegic and will always be incapable of caring for himself.

Lad testified, in explicit detail, concerning the physical pain and mental

suffering that he has experienced. He described the indignity he feels as a result of

his condition and his constant need for assistance in performing the most basic of

human functions. Lad related his feelings of depression when he discovered that,

despite every effort at rehabilitation, he would never walk again and would always

need a ventilator to breathe. Lad also noted that during one particular treatment,

when a tube was inserted into his throat, he gagged, his jaw cracked, and he

experienced severe discomfort. Lad explained that suctioning performed on him

during treatment is very uncomfortable and that breathing through a ventilator is also

very uncomfortable. When his blood pressure is elevated, Lad experiences headaches

and painful tightening of his neck.

Linda testified that Lad has never been able to cope with his paralysis and that

he is extremely depressed. Lad has described himself to Linda “as a head on top of

a body.” Lad’s general attitude has significantly changed for the worse, he frequently

becomes angry, and he has stated that he would like to die. Lad has undergone

counseling to attempt to cope with his injuries, but Lad and his family are frightened

by his condition, and Lad lives in fear. Specifically, Lad is fearful that his ventilator

may stop working or that he will be dropped when being transferred or moved. Lad

is also fearful that he may be injured by someone attempting to assist him.

The Doctors also presented extensive evidence concerning Lad’s

hospitalization, and the pain and suffering that he has experienced during those

hospitalizations. Immediately after the collision, Lad was taken to a local medical

center and then transferred to a spinal cord injury unit at another hospital, where he

stayed for one week. While there, he was placed on a ventilator and fed through a

stomach tube . Linda testified that Lad was terrified. Lad was then transferred to

another hospital for continued spinal cord care, and remained at that hospital for

another month. There, Lad underwent decompression surgery to stabilize his neck,

during which pins were inserted into his neck to hold it in place. These metal pins

cause Lad pain. While at this medical center, Lad could not communicate with

anyone, make any sound, or press a call button to summon the assistance of the

nurses. Lad could not move his head, but he did experience discomfort in his head,

and was medicated for that discomfort. Lad also was strapped to a board to

completely immobilize him.

Lad was then transferred to another care facility for rehabilitation, where he

remained for another two months. There, Lad suffered from numerous medical

conditions and complications, including pneumonia, respiratory problems, infections,

hypertension, and anemia.

Past medical expenses

To recover past medical expenses, a claimant must prove that the expenses

were reasonable and necessary. Nat’l Union Fire Ins. Co. v. Wyar , 821 S.W.2d 291,

297 (Tex. App.—Houston [1st Dist.] 1991, no writ). A plaintiff may prove medical

expenses are reasonable and necessary by submitting affidavits in compliance with

section 18.001 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. &

Rem. Code Ann. § 18.001 (Vernon Supp. 2004-2005) ; see also Jackson v. Gutierrez ,

77 S.W.3d 898, 902 (Tex. App.—Houston [14th Dist.] 2002, no pet.). In this case,

the Doctors presented medical billing records supported by affidavits, which

established reasonable and necessary medical expenses of over $400,000. EAA even

essentially conceded during closing argument that the Doctors had proven past

medical expenses in this amount.

Future medical expenses

Texas follows the “reasonable probability rule” for future damages for personal

injuries. Rosenboom Mach. & Tool, Inc. v. Machala , 995 S.W.2d 817, 828 (Tex.

App.—Houston [1st Dist.] 1999, pet. denied). Thus, to recover future medical

expenses, a plaintiff must show that there is a reasonable probability that expenses

resulting from the injury will be necessary in the future and the reasonable costs of

such care. Id .

Here, the Doctors’ expert testified in support of an award of $8,134,659.08 in

future medical expenses. EAA’s expert testified to $5,320,027 in future medical

expenses. In closing argument, EAA argued that an award of five million dollars for

future medical expenses would be “more than reasonable.” Yet the jury awarded only

$2.5 million for future medical expenses, less than half the amount recommended by

EAA’s own expert.

Loss of consortium

Linda testified that before the accident, Lad was a warm and caring husband,

but since the accident he does not like for Linda to kiss him and that she can no

longer talk to him because he has so much with which to cope. Linda explained that

she no longer has her husband to console her and that she wakes up each morning

with the same realization that Lad is paralyzed.

The jury’s findings

In regard to their first issue, the Doctors presented overwhelming and

uncontroverted evidence establishing that, as a result of the collision, Lad was

rendered a quadriplegic and that Lad sustained, and in reasonable probability would

sustain in the future, severe physical pain and mental anguish. The evidence also

establishes that Lad is disfigured and physically impaired as a result of the collision.

It was uncontroverted that Lad would remain disfigured and physically impaired for

the remainder of his life. Furthermore, the record reveals that appellees made

virtually no attempt to controvert the Doctors’ evidence concerning these elements

of damages. Yet the jury awarded zero damages in each of these categories. EAA

and Pardue present us with no record citations to evidence that in any way supports

the jury’s zero damage findings for Lad’s non-economic damages, and we have found

no such evidence.

Accordingly , we hold that the jury’s zero damage findings on Lad’s past and

future physical pain and mental anguish , past and future physical impairment, and

past and future disfigurement are so against the great weight and preponderance of

the evidence as to be manifestly unjust and shocking to the conscience . Moreover,

in regard to Golden Eagle Archery, Inc. , we note that because the jury awarded zero

damages for every category of potentially overlapping non-economic damages

claimed by Lad, there is no possibility that the jury elected to compensate Lad for his

physical pain or mental anguish in any other category of non-economic damages. See

116 S.W.3d at 773–75.

We sustain the Doctors’ first issue. Having held that the evidence is factually

insufficient to support the jury’s zero damage findings for Lad’s past and future

physical pain and mental anguish, past and future physical impairment, and past and

future disfigurement, we need not address the Doctors’ second, third, and fourth

issues concerning the jury’s damage findings for Lad’s past and future medical

expenses and Linda’s loss of consortium. See Hicks v. Ricardo , 834 S.W.2d 587, 590

(Tex. App.—Houston [1st Dist.] 1992, no writ) (indicating that case should be

reversed and remanded for new trial if court finds that one of jury’s damage findings

is against great weight and preponderance of evidence).

Conclusion

We reverse and remand this case for a new trial.

Terry Jennings

Justice

Panel consists of Justices Jennings, Hanks, and Evans.