Hulcher Servs., Inc. v. Emmert Indus. Corp.

HULCHER SERVICES, INC. APPELLANT v. EMMERT INDUSTRIAL CORP. APPELLEE

NO. 02-14-00110-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

January 28, 2016

FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 236-228956-08

MEMORANDUM OPINION¹

In two issues that each contain many distinct arguments, appellant Hulcher Services, Inc. (Hulcher) appeals the trial court's money judgment in favor of appellee Emmert Industrial Corp. (Emmert). Hulcher contends that the evidence is legally and factually insufficient to support the jury's answers to questions concerning liability and damages, that the common-law economic loss ruleprecludes some of Emmert's damages, and that the trial court's award of attorney's fees and costs to Emmert should be set aside or reduced. We modify the trial court's judgment, affirm most of the judgment as modified, and remand the case to the trial court for new trial only on the issue of attorney's fees and for a recalculation of prejudgment interest. See Tex. R. App. P. 43.2(b), (d).

Background Facts

This appeal arises from a derailment and failed rerailment of a railcar that was carrying a 480,000 pound electric transformer. In June 2007, believing that one of its transformers would soon fail, Oncor Electric Delivery (Oncor)² hired Emmert to safely and promptly move another transformer from Roanoke to Granbury. Oncor had hired Emmert for many similar jobs in the past; the two companies operated under renewable "work agreements" for smaller jobs, and Emmert bid against other companies for larger jobs. To serve Oncor's needs, Emmert maintained a twelve-axle railcar and multi-axle trailers.

Through the use of a 300-ton crane and a 500-ton crane, Emmert successfully transferred the transformer from a large truck, which was near the middle of a roadway, to a railcar. While resting unsecured on the railcar, the transformer blocked three lanes of the roadway. The police, whom Emmert had hired to assist in the project, approached Emmert's representatives to ask about how long the railcar would block the roadway. Employees of Emmert and ofMaxim Crane, which had been hired to assist in the job, discussed the need to move the railcar out of the middle of the roadway.

While the transformer was resting on the railcar and after the cranes had been unhooked from the transformer, an employee of Maxim Crane released the railcar's brake in an attempt to unblock the road. At that point, the railcar had not been properly secured with a winch line, as is the standard procedure, and it starting moving on the track.³ Several men jumped onto the railcar to attempt to apply the brake, but the brake malfunctioned, and the men eventually jumped off. The railcar continued to move down the track, gained speed, and eventually derailed into some gravel near the track. Upon derailment, the transformer remained on the railcar while leaning toward the side of the track from which the railcar derailed. Oncor ran tests that appeared to show that the transformer had not been damaged.

Emmert considered rerailing the car with the assistance of Maxim Crane. That plan included building a base of rock in a ditch close to the track,⁴ using cranes to lift the transformer off of the railcar, and then rerailing the railcar. The plan would have taken several hours to complete. Emmert secured the transformer to the railcar.

Hulcher specializes in rerailing railcars and has locations throughout North America. It works for Union Pacific (the owner of the railroad line) "day in and day out." When Emmert's railcar derailed, Lloyd Beckett, who lived nearby, called Hubert Clark Jr., a division manager with Hulcher.⁵ Clark, who had just completed a rerailment in Sherman and had a crew with him, called Joe Piazza, an employee with Union Pacific, to inform him about the derailment. Neither Piazza nor anyone else with Union Pacific instructed Clark to do anything with respect to Emmert's railcar. In fact, Piazza said that if "[Emmert] derailed it[,] . . . they could put it back on with their cranes." Nonetheless, Clark went to the derailment site while attempting to find work for Hulcher. Clark "told [Union Pacific] what [he] was going to do" with respect to the derailment.

According to Marcus Pharr, a superintendent with Emmert, when Emmert presented its plans to rerail the car to a Hulcher employee (presumably Clark), that employee told him to "[b]ack off" and said, "[W]e've got this; we're going to put it back on the rail for you." Pharr testified that someone from Hulcher "pretty much told [Emmert that Emmert] didn't have a choice" about allowing Hulcher to attempt to rerail Emmert's railcar.

Sam Watts, who works for Maxim Crane, testified that when Clark arrived at the site, he said, "I was called by [Union Pacific] to come in and clean up yourmess."⁶ According to Watts, Clark said, "I can get it [rerailed] before you can even get your equipment here." Watts understood that Hulcher was claiming that it had authority from Union Pacific to rerail Emmert's railcar and that Union Pacific had called Clark about the job. Watts testified that although he had a different plan to help Emmert rerail the railcar,

[Clark] showed up and . . . just kind of laid it out there. . . . ["W]e do all the railroad's work, the derailment[s], and we're here . . . to clean it up.["] . . . We just kind of backed off at that point.

. . . .

. . . [Clark] basically came to us and said, ["]Look, we do all the [Union Pacific] derailments. And . . . [Union Pacific] called us to come in here. And they said y'all need assistance to put this back on, and that's what we're here to do.["]

. . . .

. . . In other words, [Clark] came and introduced himself with the railroad guy. . . . [Clark indicated that] Hulcher needs to clean this mess up. . . .

. . . .

. . . I've got a game plan together. I've talked to my engineers. I've talked to my other operators. . . . And then [Clark] show[ed] up with the railroad people and said, . . . ["]We need to bring Hulcher in here and they can get this done and get it expedited quickly.["]

Believing that he did not have a choice other than allowing Hulcher to attempt rerailment, Watts called Weir and told him that Hulcher would charge $15,000 to $20,000 to rerail the railcar. Weir asked Watts whether Hulcherwould be able to successfully rerail the railcar, and Watts said that he did not know.

Weir testified that Clark represented that Hulcher could successfully rerail the railcar and that Hulcher had sufficient equipment in the area to do so. After Clark told Weir that Hulcher could rerail the railcar, Weir eventually aborted any plan for Emmert to rerail it.

Similarly to Watts, Lonnie Reed, an Emmert employee,⁷ testified that when he arrived on the site of the derailment, Clark

described what he wanted to do. I voiced my objection [because] the transformer is [Emmert's] responsibility [and because] the railcar belonged to us.

At this point, I was instructed by the gentleman from the [r]ailroad that [Emmert] created this mess [and Hulcher was] going to clean it up. So at that point, I am merely a consulting factor.

Clark knew the weight of the transformer but did not know about its value or how delicate it was. Hulcher used side booms in an attempt to take weight off the railcar. It also used locomotives owned by Union Pacific (and requested by Hulcher) to attempt to pull the railcar onto the rails. Clark directed the rerailment attempts. The first attempt failed; according to Clark, the car "moved some and then . . . it quit." A second attempt likewise failed. According to Reed, Hulcher'sattempts to rerail the railcar resulted in it, along with the side booms, sinking deeper into the gravel surrounding the track. He stated,

Every time [Hulcher] made the attempt to move it, it settled more in the gravel and caused the transformer to list more at the point where you get to where it looks like if you keep going, it's going to tip over on its own . . . . Before you get to that point, it was time to stop.

. . . .

. . . [T]hey were going to, through brute force, drag it forward and up onto the tracks. So when they weren't able to pick it up, that tells you [the equipment] wasn't sufficient.

Clark testified that he never spoke to anyone from Oncor concerning the rerailment. He also stated that no one from Emmert ever told him that his method of attempting rerailment was flawed or that Emmert wanted him to "stand down." But Pharr testified that Reed told Clark that Hulcher needed more equipment and that Clark agreed and said that he would get more equipment before attempting to rerail the railcar again.⁸ Watts testified that Hulcher was told to stop its rerailing attempts until it had more equipment on site and that even before Hulcher's first attempt, he communicated his concern to Clark that Hulcher did not have enough equipment to rerail the car successfully.⁹According to Watts, Reed also expressed concern to Hulcher about Hulcher's rerailment plan, but Clark said that Hulcher knew what it was doing and that Emmert needed to "get out of [the] way." Reed testified that after Clark's second failed attempt, he told Clark that he needed more equipment before making another attempt at rerailment and flatly instructed him not to proceed further.¹⁰

Weir explained that after Hulcher initially failed to successfully rerail the railcar, he called a Hulcher representative and said, "You're not able to do this, you're spinning your wheels. What is your plan?" According to Weir, the representative stated, "We have more equipment coming. We've made the determination to bring more equipment." When Weir asked what equipment was coming, the representative said that Hulcher had dispatched two more side booms and that Hulcher would wait until those side booms arrived to continue. Clark testified that he continued attempting rerailment instead of waiting for more equipment to arrive because he had "done the same thing before" and because he "felt [Hulcher] could do...