Opinion
NUMBER 13-14-00097-CV
02-25-2016
PHI, INC., Appellant, v. DEREK LEBLANC AND AMERICAN INTERSTATE INSURANCE COMPANY, Appellees.
On appeal from the 24th District Court of Calhoun County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant, PHI, Inc., appeals from a verdict in favor of appellee, Derek LeBlanc on his personal injury cause of action. In the judgment, LeBlanc was ordered to pay to appellee, American Interstate Insurance Company $87,000 out of the proceeds of his net recovery from PHI. By five issues, that we have renumbered and reorganized, PHI contends that the evidence is legally and factually insufficient (issues one and two), there was error in the jury charge (issues three and four), and the trial court improperly applied maritime law (issue five). We affirm.
American Interstate Insurance Company has adopted and incorporated by reference the entirety of LeBlanc's brief and all of the arguments set forth therein, with respect to this appeal.
I. BACKGROUND
Due to his work as a safety inspector, on June 10, 2010, LeBlanc traveled by helicopter to an offshore platform in the Gulf of Mexico. During the flight, before arriving at the platform, the pilot, Mike Warren and the passengers, LeBlanc and Gregory Witten, heard a loud noise, and the helicopter immediately went into a nose dive. Warren was able to regain control of the helicopter and was able to deploy the helicopter's flotation system and land on the water. When the helicopter landed on the water, it flipped over completely. The passengers exited the helicopter, and men on a nearby crew boat rescued Warren and Witten, while a team of divers rescued LeBlanc. As a result of the incident, LeBlanc claimed he suffered injuries, both mental and physical.
LeBlanc filed suit against (1) PHI, the business that chartered the helicopter, (2) Apical Industries, Inc., the manufacturer of the flotation system (Apical), and (3) Bell Helicopter Textron, Inc., the manufacturer of the helicopter (Bell). Subsequently, LeBlanc nonsuited his claim against Bell; however, the trial court granted Apical's and PHI's motions to designate Bell as a responsible third party.See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004 (West, Westlaw through 2015 R.S.).
Prior to trial, LeBlanc settled with Apical.
At trial, evidence was presented that the helicopter's tail rotor drive system had somehow failed. However, the trial court concluded that there was no evidence for the jury to determine what had actually caused the tail rotor failure because the tail boom broke off during recovery of the wreckage and was lost at sea. The trial court decided that no instruction would be given to the jury concerning whether Bell was responsible for the accident because no one could determine what had gone wrong with the tail rotor. Based on its conclusion that there was no evidence regarding the tail rotor failure, the trial court limited the jury to only considering the events that occurred after the helicopter landed in the water in determining liability and damages. According to PHI, the trial court also refused its requested question to the jury asking whether the flotation system was defective.
PHI objected to this omission in the charge. However, PHI has not complained of error, if any, in the trial court's refusal to so instruct the jury.
PHI does not direct us to the portion of the record wherein it requested the question or wherein the trial court denied its request.
The jury returned a verdict in favor of LeBLanc, finding PHI negligent, and it awarded damages to LeBlanc. The jury found that Apical had not been negligent. The trial court rendered judgment in LeBlanc's favor. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By its first issue, PHI contends that there is no evidence to support the jury's finding that LeBlanc's injuries occurred after the helicopter landed in the water, as defined in the jury charge. By its second issue, PHI contends that the evidence is legally insufficient to support the jury's award of damages for past medical expenses.
A. Standard of Review
A legal sufficiency challenge will be sustained when the record shows: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). A "no evidence" or legal insufficiency point is a question of law challenging the sufficiency of the evidence to support a particular fact finding. In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex. App.—El Paso 1999, no pet.).
In a legal sufficiency review, the appellate court "must view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." City of Keller, 168 S.W.3d at 830. The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 822. In our review, we are mindful that the jury remains the sole judge of witnesses' credibility and the weight to be given to their testimony. Id. at 819-20. Moreover, in our legal sufficiency review, we must afford deference to the jury's resolution of conflicts in the evidence, and we must presume that the jury resolved all conflicts in favor of the verdict. Id. at 820-21.
B. Jury Instruction
First, PHI argues that the evidence is insufficient to show that LeBlanc's injuries occurred after the helicopter landed; thus, there is no evidence that its conduct caused LeBlanc's injuries. Specifically, PHI complains that there is no evidence that LeBlanc suffered his injuries after the helicopter landed and that the evidence actually established LeBlanc was injured prior to the helicopter landing. PHI relies on the trial court's jury instruction in Question 1 defining the "occurrence in question" as "the inversion of the Helicopter after it had landed in the water and all subsequent events leading up to [LeBlanc] arriving on the drilling platform where he was picked up for transport to Galveston." Question 1 asked, "Did the negligence, if any, [PHI and Apical] proximately cause the occurrence in question?" Thus, in essence the question asked, if either PHI's or Apical's negligence caused, in relevant part, the inversion of the helicopter after it landed in the water. The jury answered, "Yes" as to PHI and "No" as to Apical.
PHI's alleged negligent act occurred when it improperly installed the floats, which in turn did not inflate properly causing the helicopter to roll over in the water.
PHI contends that Question 1's definition of "occurrence in question" somehow only allowed the jury to find that LeBlanc's injuries occurred after the helicopter landed. Thus, PHI argues, the jury must have found that the roll-over and subsequent events caused LeBlanc's physical and mental injuries, and there is no evidence in the record to support such a finding.
Our review of Question 1 does not support PHI's presumption concerning the definition of occurrence in question. Question 1 merely asked if PHI's negligence proximately caused "the inversion of the Helicopter after it had landed in the water and all subsequent events leading up to [LeBlanc] arriving on the drilling platform where he was picked up for transport to Galveston."
Nonetheless, for purposes of this memorandum opinion, we will assume without deciding that PHI is correct that the definition of occurrence in question limited the jury to finding that the evidence had to show that LeBlanc's injuries occurred after the helicopter landed.
1. Preservation
LeBlanc responds that he objected to the trial court's instruction regarding the occurrence in question and that because the definition was erroneous, we must measure the sufficiency of the evidence against the correct instruction.
Ordinarily we would address the legal sufficiency challenge first because it could lead to rendition of the cause. However, before we can measure the sufficiency of the evidence, we must identify the standard against which the evidence is to be measured. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002). If there has been no objection to the jury charge, then the charge actually submitted is the proper measure of the sufficiency of the evidence. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). But
when, as in this case, an objection to the charge is properly preserved, we determine whether the charge submitted was erroneous and then measure the sufficiency of the evidence against the correct standard. See St. Joseph Hosp., 94 S.W.3d at 530.Latham v. Burgher, 320 S.W.3d 602, 606 (Tex. App.—Dallas 2010, no pet.). Thus, before we proceed, we must determine whether LeBlanc properly preserved error, if any, in the charge and whether the charge was erroneous so that we may identify the proper standard against which the evidence is to be measured. See id.
At the charge conference, PHI argued that the helicopter crash included "two separate occurrences." According to PHI, the first occurrence began when the tail rotor failed and ended when the helicopter landed on the water, while the second occurrence began after the helicopter landed and included all events that occurred afterwards to LeBlanc's arrival at the drilling platform where he was picked up for transport to the hospital.
We note that during the trial on the merits, LeBlanc's case in chief was not presented as if two separate incidents occurred. Instead, the witnesses and parties referred to the helicopter crash as a single event.
LeBlanc argues that if one assumes arguendo that there were two separate "occurrences" that caused him harm, as the trial court concluded, these two separate occurrences caused one indivisible injury. LeBlanc relies on the Restatements (Second) of Torts section 433A, which he argues provides that "[w]hen there is no basis for determining the contributions of multiple causes to a single injury, each wrongdoer is responsible for the entire 'indivisible' injury."
PHI does not address the sufficiency of the evidence regarding causation if we were to determine that the definition of "occurrence in question" was improper. However, in its reply to LeBlanc's brief, PHI argues LeBlanc failed to preserve charge error, if any, and in the alternative, there is no error.
We only determine whether the charge given is erroneous when an objection is properly preserved. See St. Joseph Hosp., 94 S.W.3d at 530. Here, during the charge conference, LeBlanc's trial counsel stated that he objected to the entire question that included the definition of occurrence in question. After overruling LeBlanc's objection, the trial court stated, "Just so the record is clear, the objection that I've overruled is an objection posed by [LeBlanc] to the definition of the occurrence in question which limits the consideration of the jury to the injuries that were incurred beginning with the inversion of the helicopter and ending with the arrival of [LeBlanc] on the drilling platform where the PHI ambulance helicopter picked him up." Moreover, LeBlanc submitted a proposed jury charge, which included the following question: "Did the negligence, if any, of those named below proximately cause the injury in question," with the instruction, "Answer 'Yes' or 'No' for each of the following . . . PHI, Inc." LeBlanc's proposed charge contained no definition of the phrase "occurrence in question."
We conclude that LeBlanc properly preserved his erroneous definition of "occurrence in question" claim by objecting to the entire question and submitting to the trial court what he contends on appeal is the correct form of question that included no definition of "occurrence in question."See TEX. R. CIV. P. 274 ("Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections."), 278 ("Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment."). We agree with LeBlanc that the trial court implicitly ruled that his injury was divisible by agreeing with PHI's argument that there were two events and by limiting the jury to consider only events occurring after the helicopter landed. Accordingly, if we conclude that the definition of "occurrence in question" in the jury charge was erroneous, the sufficiency of the evidence to support the jury's finding must be measured by the correct charge. Latham, 320 S.W.3d at 606.
LeBlanc also objected to the trial court's definition of "occurrence in question" based on its theories that PHI's negligent acts occurred prior to the helicopter's flight on the date of the accident.
2. Error
LeBlanc, argues that the jury charge should not have contained a definition of occurrence in question because he suffered a single indivisible injury. PHI responds that in this case, there were two separate events which led to the overturning of the helicopter and that caused two separate injuries, which included the tail rotor failure and the inversion of the helicopter in the water.
Joint and several liability has been imposed "where the negligences of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concerted action." Austin Rd. Co. v. Pope, 216 S.W.2d 563, 565 (Tex. 1949) (internal quotations omitted); see Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 654 (Tex. 1996) ("If the injuries arising from the plumbing system could not be apportioned with reasonable certainty, then the plaintiffs' injuries were indivisible, and the defendants are jointly and severally liable for the whole."). Instructions and definitions are proper when they are raised by the written pleadings, supported by the evidence, and they aid the jury in answering the questions in the charge. Knoll v. Neblett, 966 S.W.2d 622, 633 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).
At trial, LeBlanc claimed that the cause of the helicopter accident occurred prior to the helicopter's flight that day. First, LeBlanc alleged that PHI failed to properly install the helicopter's flotation system, which caused the roll-over in the water. Second, LeBlanc alleged that PHI failed to properly inspect the helicopter, which would have led to the discovery of the improper installation.
Further, according to LeBlanc, PHI failed to discover that the tail rotor had been improperly maintained, which subsequently caused the tail rotor to fail, and it did not discover that the flotation system had been improperly installed, which caused the roll-over. However, as previously mentioned, the trial court did not allow evidence regarding what caused the tail-rotor failure.
As we have explained, because the tail rotor was lost, the trial court determined that it was impossible for anyone to determine what part of the rotor system failed. Therefore, in Question 1, which asked, "Did the negligence, if any, of those named below proximately cause the occurrence in question," the trial court instructed the jury that the "occurrence in question" meant anything occurring after the helicopter landed on the water. Question 3 of the charge asked the jury, "What sum of money, if paid now in cash, would fairly and reasonably compensate [LeBlanc] for his injuries, if any, that resulted from the occurrence in question?" Thus, assuming without deciding, the definition of occurrence in question carried forward to Question 3, the charge only allowed the jury to award damages if it found that LeBlanc's injuries were sustained after the helicopter landed in the water. Limited by the definition of the occurrence in question, the jury could not award damages for LeBlanc's injuries which it may have found occurred prior to the helicopter landing.
LeBlanc claimed that one possible cause of the tail rotor failure was when PHI's pilot failed to properly inspect the tail rotor and that one possible cause of the flotation system failure was when PHI's mechanics failed to discover that the flotation devices were installed improperly. LeBlanc's expert, Vaughn Ross, testified that a pilot is required to make a pre-flight inspection of the tail rotor drive shaft and that in this case, the pilot did not do so. Ross opined that had the pilot in this case inspected the tail rotor drive shaft, he might have discovered the issue with the drive shaft that caused its failure. Moreover, evidence was presented that prior to this accident, PHI's mechanics discovered that flotation devices were improperly installed in other helicopters. Thus, the jury could have reasonably inferred that PHI had the capacity to discover the improper installation of the flotation devices in the helicopter at issue.
In its brief, PHI points to portions of the record that support a finding that LeBlanc could have suffered his injuries prior to the helicopter landing, such as when (1) "the helicopter vibrated significantly and moved from left to right in every angle imaginable," (2) the helicopter experienced a violent nose dive, (3) LeBlanc had tunnel vision, and (4) LeBlanc felt that he was going to die. PHI complains that none of LeBlanc's witnesses were able to pinpoint the exact moment that LeBlanc was injured. Therefore, PHI argues there is no evidence from which the jury could have found "the extent to which those injuries were caused by the [h]elicopter rolling over in the water, as opposed to the sequence leading up to and including the [h]elicopter's violent descent and crash landing into the Gulf." However, when PHI requested for the trial court to define occurrence in question as the events occurring after the helicopter landed, in essence, PHI asked the jury to do what it is now complaining cannot be done.
Relying on circumstantial evidence, PHI invites us to conclude that LeBlanc suffered his injuries prior to the landing. However, at what point during the accident LeBlanc's injuries occurred constituted a question of fact for the jury. Moreover, LeBlanc testified that he could not recall much of the details of the accident. And, the evidence showed that the accident, starting with the tail rotor failure and ending with the rollover in the water, took mere seconds.
The trial court allowed evidence that the tail rotor failed; however, it did not allow evidence regarding the reason for the failure.
In order to agree with PHI that the definition of "occurrence in question" is correct, we must conclude that the evidence established that LeBlanc suffered one physical injury and mental injury caused only by the tail rotor failure and a second, separate physical injury and mental injury only caused by the flotation device failure. We disagree with PHI that in this case there were two occurrences potentially causing two separate injuries because there is no evidence to support such a conclusion. In this case, the evidence established that both of these occurrences, the tail rotor failure and the flotation device failure, joined together to produce one and the same injury. See Phillips v. Gulf & South American Steamship Co., 323 S.W.2d 631, 632 (Tex. Civ. App.—Houston 1959, writ ref'd) ("Though it is true that the separate acts of offending parties need not occur simultaneously, we believe that it must be shown that they joined together to produce one and the same injury.").
Therefore, we cannot conclude that as applied to LeBlanc's injuries, the definition of "occurrence in question" given to the jury was supported by the evidence.See Amstadt, 919 S.W.2d at 654 (acknowledging that Texas courts usually apply comparative fault analysis unless the defendant who has the burden of apportioning its liability for the plaintiff's injuries "cannot establish its percentage of liability, and thus remains liable for the whole"); Knoll, 966 S.W.2d at 633. Accordingly, the sufficiency of the evidence to support the jury's finding must be measured by the correct jury charge, which would not have included the complained-of definition of "occurrence in question" as to LeBlanc's injuries. Latham, 320 S.W.3d at 606.
In its reply brief, PHI argues that LeBlanc did not "introduce any evidence that the injuries he sustained as a result of the rollover and subsequent events were incapable of being divided from the injuries sustained as a result of the violent descent and emergency landing caused by the tail assembly failure." PHI appears to imply that direct evidence of the indivisibility of the injuries is required. However, PHI cites no authority to support that argument. And, as stated above, there is evidence in the record to support LeBlanc's claim that his injuries were indivisible.
PHI does not contend on appeal that the evidence is insufficient to support the jury's verdict if it had not been instructed to only consider LeBlanc's injuries that occurred after the helicopter landed. Moreover, LeBlanc presented medical evidence that the helicopter crash caused his physical and psychological injuries. We overrule PHI's first issue.
PHI also does not contend on appeal that if the trial court erroneously included the definition of the "occurrence in question" in the charge, the evidence is insufficient to support the jury's damages award.
In its first issue, PHI also asserts that the evidence is factually insufficient. PHI's factual sufficiency argument focuses solely on whether the evidence was factually sufficient to support the jury's finding that LeBlanc suffered physical and mental damages after the helicopter landed. PHI does not argue in the alternative that the evidence is factually insufficient to support the judgment under the correct charge, which would not have included the definition of "occurrence in question." Therefore, given our conclusion that the trial court erred by giving the definition of "occurrence in question," we need not address these arguments as they are not dispositive. See TEX. R. APP. P. 47.1.
D. Past Medical Expenses
By its second issue, PHI contends that pursuant to section 41.0105 of the Texas Civil Practice and Remedies Code, LeBlanc was limited to recovery of medical expenses that he paid or was obligated to pay out of pocket. PHI argues that evidence of any amount which was covered by insurance or otherwise adjusted to reduce his personal obligation must be excluded from evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.0105 (West, Westlaw through 2015 R.S.). And, according to PHI, there is no evidence in the record that LeBlanc is legally obligated to pay medical expenses awarded to him in the amount of $81,173.26, and there is no evidence that LeBlanc either paid medical expenses in the amount of $94,698 awarded to him or that he remains legally obligated to reimburse whoever did pay those expenses.
LeBlanc, citing section 41.0105, responds that "[t]here is no requirement that the claimant himself must pay those expenses—they may be paid by someone else 'on behalf of the claimant.'" See id. LeBlanc further argues that the Texas Supreme Court has interpreted section 41.0105 to prevent recovery of medical bills constituting "list" prices that are rarely ever paid by anyone and allowing recovery if payments are actually made "on behalf of" a claimant. Thus, according to LeBlanc "[o]nly amounts that are going to be adjusted or written off by the provider are unrecoverable." See Haygood v. De Escabedo, 356 S.W.3d 390, 391 (Tex. 2011).
In Haygood, the Texas Supreme Court explained that section 41.0105 "limits recovery [of medical expenses] and consequently the evidence at trial, to expenses that the provider has a legal right to be paid." Id. The Haygood court explained that there are now two tiers of medical billing, one for the uninsured known as "list" or "full" rates, which are "frequently uncollected" and another tier of "reimbursement rates for patients covered by government and private insurance." Id. at 393. In addition, medical "[p]roviders commonly bill insured patients at list rates, with reductions to reimbursement rates shown separately as adjustments or credits." Id. at 394.
The Haygood court acknowledged that the collateral source rule has long been a part of the common law of Texas and other jurisdictions. Id. The court explained that "the rule precludes any reduction in a tortfeasor's liability because of benefits received by the plaintiff from someone else—a collateral source. Thus, for example, insurance payments to or for a plaintiff are not credited to damages awarded against the defendant." Id. at 394-95. However, the court disagreed that any adjustments to a list rate by a medical provider due to an agreement with the insurance provider is a collateral benefit covered by the collateral source rule. Id. at 395. The court held "that the common-law collateral source rule does not allow recovery as damages of medical expenses a health care provider is not entitled to charge." Id. at 396.
Thus, LeBlanc had a burden to present evidence that the medical providers were entitled to payment of the bills they charged. See id. However, there is nothing in section 41.0105 stating that LeBlanc could only recover "what he has paid or is obligated to pay out of pocket" or that the trial court was required to "exclude from the evidence any amount which was covered by insurance." See id. (making the opposite observation under the collateral source rule). On the contrary, under the collateral source rule, LeBlanc's damages could not be reduced because of any benefits received by him from someone else. See id. at 394-95. Thus, as the Haywood court explained in similar circumstances, insurance payments to or for LeBlanc would not have been credited to damages awarded against PHI. See id. at 395. We overrule PHI's second issue.
PHI generally asserts that LeBlanc was not entitled to recover medical expenses that were "adjusted to reduce his personal obligation." However, PHI does not provide any legal analysis regarding this assertion. Therefore, we will not address it as it is not adequately briefed. See TEX. R. APP. P. 38.1(i); Moreover, PHI points to nothing in the record showing that LeBlanc's medical bills had been adjusted due to an agreement with his health insurance provider and that he had requested and received the unadjusted amount as damages. See Haywood v. De Escabedo, 356 S.W.3d 390, 391 (Tex. 2011) (including evidence that the plaintiff's original medical bills had been adjusted by his health insurance provider and that the trial court had awarded the plaintiff the unadjusted amounts originally billed by the medical provider and holding that award was error).
We also overrule PHI's subissue to its second issue asserting that the evidence is factually insufficient to support the medical damages because it has not provided a legal analysis of the issue or stated what evidence greatly outweighs the evidence in support of the verdict. See TEX. R. APP. P. 38.1(i); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). (explaining that in order for this Court to properly apply our factual sufficiency review, when reversing on the basis of factual insufficiency, we must in our opinions, "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict"); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) ("[W]hen reversing a trial court's judgment for factual insufficiency, the court of appeals must detail all the evidence relevant to the issue and clearly state why the jury's finding is factually insufficient or so against the great weight and preponderance of the evidence that it is manifestly unjust[, and] [t]he court of appeals must explain how the contrary evidence greatly outweighs the evidence supporting the verdict.").
III. CHARGE ERROR
By its third issue, PHI claims that the trial court erred in refusing to include an instruction in the charge concerning whether the floats were defectively designed by Apical.
A. Standard of Review
Texas Rule of Civil Procedure 278 requires the submission of jury questions that are supported by the written pleadings and the evidence. See Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). We review an allegation of jury charge error for an abuse of discretion. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). A trial court abuses it discretion if its acts are arbitrary, unreasonable, or without consideration of guiding principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
B. Design Defect
PHI claims that the evidence raised the issue of a design defect of the flotation system. PHI points to evidence in the record that "even though the floats contained different nitrogen capacities, the hose fittings on the hoses going to each of the bags was identical," and "[a]s a result, not only could the hoses be easily reversed, but once reversed, they still appeared to be correctly installed." Thus, PHI argues the trial court erred in failing to include a question regarding the alleged design defect as the evidence was sufficient to put that issue before the jury. See TEX. R. CIV. P. 278.
The proponent of a design defect claim must prove, among other things, that "the defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery." TEX. CIV. PRAC. & REM. CODE ANN. § 82.005. The Texas Supreme Court has consistently required competent expert testimony and objective proof that a defect caused a complained-of condition. Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 137-38 (Tex. 2004).
"Proof other than expert testimony will constitute some evidence of causation only when a layperson's general experience and common understanding would enable the layperson to determine from the evidence, with reasonable probability, the causal relationship between the event and the condition" and "[e]xpert testimony is required when an issue involves matters beyond [the] jurors' common understanding." Alexander v. Turtur & Assocs., 146 S.W.3d 113, 119-20 (Tex. 2004). Whether expert testimony is necessary to prove a matter or theory is a question of law. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006). Because whether Apical's design was defective involves a matter beyond the jurors' common understanding, we conclude that as a matter of law expert testimony was required. See id.; Alexander, 146 S.W.3d at 119-20.
PHI cites Ross's testimony wherein he agreed that a design defect existed in the flotation system to support its allegation that the evidence and pleadings supported such a question. However, we agree with LeBlanc that Ross's testimony was conclusory and cannot be considered probative on the design-defect issue. See DeGrate v. Executive Imprints, Inc., 261 S.W.3d 193, 201 (Tex. App.—Tyler 2008, no pet.) ("Conclusory statements by an expert are not competent evidence and are insufficient to support or defeat [a design defect claim]."). In addition, PHI does not cite the record where it presented any competent expert testimony that the alleged design defect caused the rollover of the helicopter. See Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 817 (Tex. App.—Dallas 2003, pet. denied) ("An appellate court has no duty to search a voluminous record without sufficient guidance from an appellant to determine whether an assertion of reversible error is valid."). Moreover, the jury found that PHI committed the negligence which led to the roll-over and did not apportion any liability to Apical despite Ross's testimony that he believed Apical's design was defective. Thus, the jury must have found that it was PHI's negligent installation of the flotation devices that caused the rollover, and not Apical's design. Finally, PHI has not provided any substantive analysis regarding where in the record it presented any expert opinion regarding the elements of a design defect including an alternative safer design or evidence that the flotation system was unreasonably dangerous. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) ("To recover for a products liability claim alleging a design defect, a plaintiff must prove that (1) the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was a producing cause of the injury for which the plaintiff seeks recovery."). Accordingly, we cannot conclude that the trial court committed error by not including a design defect question regarding the flotation devices. We overrule PHI's third issue.
Specifically, PHI cites several questions posed to Ross and his answers as follows: (1) PHI's trial counsel asked, "The old [flotation system] design was defective, was it not," with Ross responding, "It sure was"; (2) Ross agreed that his opinion was that the flotation system was defective; (3) Ross agreed with PHI's trial counsel's statement that "Apical is liable for a defectively designed product that was involved in this case"; and (4) Ross response to PHI's trial counsel's question that he would "give Apical a failing grade for having a design defect."
C. Occurrence in Question
By its fourth issue, PHI contends that the "trial court erred in refusing to instruct the jury that it could not include in its damages award any amount for any condition that did not result from the occurrence in question, as defined by the jury charge." PHI argues that because the jury was not so instructed, it may have awarded damages to LeBlanc that were sustained prior to the helicopter inversion. Because we have already concluded that the jury should not have been given the definition of occurrence in question, which limited its determination of LeBlanc's injuries to those occurring after the helicopter landed, we overrule PHI's fourth issue.
IV. MARITIME LAW
By its fifth issue, PHI contends that the trial court improperly applied maritime law to the issue of a settlement credit. Specifically, PHI argues that LeBlanc waived the application of maritime law by, among other things, stating in his petition that he was not pleading any claims that "could be preempted by federal law." LeBlanc responds that he properly invoked the application of maritime law.
PHI requested that the trial court reduce its liability by the amount LeBlanc received from his settlement agreement with Apical. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.012(b) (West, Westlaw through 2015 R.S.). However, the trial court determined that maritime law applied. Therefore, it did not grant PHI's requested settlement credit. See Niche Oilfield Servs., LLC v. Carter, 331 S.W.3d 563, 577 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting that in applying maritime law, the trial court reduced the jury's damages award only by the percentage of liability that the jury apportioned to another defendant). On appeal, PHI does not contend that maritime law does not apply or that the trial court abused its discretion by not giving it credit for the settlement amount under maritime law. PHI's argument focuses solely on whether LeBlanc waived the application of maritime law. --------
While it is true that in his live pleading, LeBlanc in a section entitled "Jurisdiction and Venue" stated that he was not pleading any claims that could be preempted by federal law, LeBlanc also stated, "The claims asserted arise under the common law of Texas, or in the alternative, under the general maritime law." We acknowledge that a party may waive application of maritime law by not properly invoking it. See Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 919 (Tex. 1993). However, here LeBlanc invoked maritime law in his pleadings, to which PHI did not specifically except, and LeBlanc argued to the trial court that maritime law applied to the issue of the settlement credit. Thus, in the absence of any authority supporting a conclusion that under these circumstances a party waives the application of maritime law, we cannot conclude that the trial court abused its discretion by determining that LeBlanc had not waived it. See Niche Oilfield Servs, LLC v. Carter, 331 S.W.3d 563, 577 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (finding no waiver when the plaintiff in his petition stated, "This claim is maintained under the common law of Texas and/or the general maritime law of the United States," the defendant failed to challenge "the adequacy or specificity of this allegation via special exceptions," and the plaintiff's attorney "stated as follows at the beginning of the charge conference: '[W]e have pled under both the Texas common law and under general maritime law. We maintain that the case would be governed by maritime law even though the Defendant in this case was onshore'"). We overrule PHI's fifth issue.
V. CONCLUSION
We affirm the judgment of the trial court.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed this the 25th day of February, 2016.