Team Indus. Servs. v. Most

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TEAM INDUSTRIAL SERVICES, INC., Appellant v. KELLI MOST, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JESSE HENSON, Appellee

No. 01-22-00313-CV

Court of Appeals of Texas, First District

May 16, 2024

On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-256883

Panel consists of Adams Chief Justice and Countiss and Farris Justices.

OPINION

Julie Countiss, Justice.

Appellant Team Industrial Services, Inc. ("Team"), challenges the trial court's judgment, entered after a jury trial in favor of appellee, Kelli Most, individually and as personal representative of the estate of Jesse Henson deceased in her wrongful death and survival suit against Team.^[1] In five issues, Team contends that the trial court erred in denying its motion to dismiss for forum non conveniens, refusing to apply Kansas law to its claims, and entering a grossly excessive damages award that resulted from errors in selecting and instructing the jury and allowing improper argument.

We vacate and dismiss.

Background

In her third amended petition, Most, the widow of Henson, alleged that on or about June 4, 2018, Henson, who was employed at the Jeffrey Energy Center, a coal-fired power plant in Kansas owned by Westar Energy ("Westar"), a Kansas utility company, "was exposed to a steam release" when a pressure relief valve failed. Henson "suffered severe burns," which "ultimately led to him suffering a horrific death." Henson's death occurred shortly after Team, an industrial services provider, had serviced the Jeffrey Energy Center's pressure relief valves under a contract with Westar.

Most brought wrongful death and survival claims against Team asserting that Team "was negligent, negligent per se, and grossly negligent" because it failed to adequately train, instruct, and supervise its employees; "have adequate safety policies and procedures"; properly maintain, inspect, and operate "the equipment"; "provide adequate equipment"; "properly perform the work in question"; "ensure that [its] worksite was reasonably safe"; adequately maintain and inspect "the premises at issue"; and "remedy" or "adequately warn of a dangerous and/or hazardous condition." According to Most, Team also "creat[ed] a dangerous and/or hazardous condition" and Team was "vicariously liab[le] for the conduct of [its] employees." Most additionally alleged that Team had "violat[ed] applicable government regulations, laws, rules, and industry standards" and committed "[o]ther acts deemed negligent, negligent per se, and grossly negligent."

Further, "[a]s a direct and proximate result of Team's [negligent] conduct," Most alleged, Henson had "sustained severe physical pain, disfigurement, fear, mental anguish, and emotional distress" and she had "lost her husband." Specifically, the damages that she and Henson "sustained in the past" and that she would "continue to sustain in the future" included Henson's "[p]re death physical pain and physical pain and suffering," their "mental pain," and their "suffering, emotional distress, and mental anguish." Most also alleged damages including the "[l]oss of earning capacity and inheritance," "fringe benefits," "services and support," "nurture, guidance, care, and instruction," "enjoyment of life," "future pecuniary support," "society and companionship," and "[a]ll other damages recoverable under the law."

Additionally, Most alleged that she was "entitled to punitive damages because [Team] willfully and wantonly disregarded" the "safety and rights" of Henson and Most by "act[ing] with flagrant and malicious disregard of [Henson's] health and safety." According to Most, Team was "subjectively aware of the extreme risk posed by the conditions which caused [Henson's] death, but [it] did nothing to rectify them" despite "knowing that the conditions posed dangerous and grave safety concerns." Most alleged that Team's "acts and omissions involved an extreme degree of risk considering the probability and magnitude of potential harm to [Henson] and others" and Team "had actual, subjective awareness of the risk, and consciously disregarded" it.^[2]

As to jurisdiction and venue, Most alleged that Team was a Texas citizen and its principal place of business was in Texas. According to Most, venue was proper in Fort Bend County, Texas under Texas Civil Practice and Remedies Code section 15.002.

In its first amended answer, Team generally denied the allegations in Most's petition. Team also raised various affirmative defenses, including that "[t]he accident at issue and injuries in question" occurred as a result of "independent, intervening, or superseding causes" and "were caused wholly or in part by the negligence or fault of others," such as Westar, and Team was entitled to "an allocation of fault and determination of the proportionate share of fault."

Team further pleaded for any recovery by Most to be "reduced or barred" under applicable law, including Texas Civil Practice and Remedies Code chapter 71 and Kansas Statutes chapter 60, article 19, in particular "the limitations on nonpecuniary losses set forth in [Kansas Statutes] section 60-1903." Additionally, according to Team, any recovery of compensatory damages by Most was "limited pursuant to any applicable statutory and common law restrictions, . . . including [Kansas Statutes] section 60-19a02." And Team requested a jury trial.

Team then sought dismissal of Most's claims against it based on forum non conveniens. In its motion to dismiss for forum non conveniens, Team pointed out that Most was a Kansas resident, Henson "resided, worked, and died in Kansas," and the accident in which Henson was fatally injured occurred at the Jeffrey Energy Center in Kansas.^[3] Team asserted that Most's claims could be tried in Kansas and Kansas law provided an adequate remedy for Most's claims.

As to the private interest factors to be considered in a forum non conveniens determination, Team observed that "most of the evidence and documents" relevant to Most's claims as well as "most of the non-party witnesses" were located in Kansas. Although a Kansas court could compel the Kansas non-party witnesses to appear for depositions and at trial, a Texas court could not. Team also noted that the estate of Henson's coworker, Damien Burchett, who had suffered fatal injuries in the same accident, had "already filed a wrongful death lawsuit in Kansas," and Team anticipated that certain insurance litigation involving the accident would be filed in Kansas.

As to the public interest factors relevant to the forum non conveniens determination, Team argued that Most's claims against it "ha[d] no significant connection to Texas" because Henson had lived and worked in Kansas, and he died from an accident that occurred in Kansas. And Most was a Kansas resident. According to Team, it would be "fundamentally unfair to burden the people of Texas with the cost of providing courts to hear" Most's claims, which had "no significant connection" to Texas.

In her response to Team's motion to dismiss, Most maintained that it would not be "inconvenient for [Team] to litigate th[e] case" in Texas, its "home state." Most stated that eight "key witnesses already identified" by the Emerson entities^[4] in their discovery responses "[we]re located in Fort Bend County" or Montgomery County, Texas and no party had identified any "Kansas witnesses [w]hose testimony w[ould] be needed."

Further, according to Most, Team could not "credibly claim [it] w[ould] suffer substantial prejudice" from having to litigate in Texas. Because Team maintained corporate offices in Texas, Most argued that it was "likely that most of the documents [we]re located at the[] offices in Texas." She also noted that Team had not provided any "evidence that any of the[] relevant documents [we]re located in Kansas."

Additionally, Most asserted that it was likely that the "witnesses who w[ould] need to testify at trial" were located in Texas. And she noted that Team had not yet responded to her "discovery requests" that sought information about where Team's witnesses resided. Most also pointed out that the Emerson entities had "transported the equipment" that had failed from the Jeffrey Energy Center in Kansas to Fort Bend County "to have it inspected and/or tested." According to Most, "[t]he important witnesses in [her suit] w[ould] be" the Team employees who had been "temporarily in Kansas" to "install[] the equipment" and the Team employees who had "planned out the job," and they were likely Texas residents.^[5]

As to the public interest factors relevant to the forum non conveniens determination, Most asserted that the equipment and work plans likely occurred in Texas and Texas citizens had "an interest in judging the conduct of companies that reside[d] [in Texas], d[id] a substantial amount of business [in Texas], and whose conduct in Texas resulted in the death of others."

At the hearing on the motion to dismiss for forum non conveniens Team explained that while it had corporate offices in Sugar Land, Texas, its office in Broken Arrow, Oklahoma had handled the pressure relief valve maintenance for the Jeffrey Energy Center. And evidence presented at the hearing showed that only one Team employee, who allegedly "had some involvement" with the maintenance performed on the Jeffrey Energy Center's pressure relief valves immediately preceding the accident, was within the trial court's subpoena power. The two Team technicians who had been sent to Kansas to perform the pressure relief valve maintenance at the Jeffrey Energy Center, Gary Gautney and Brad Whinery, were "somewhere" in the Tulsa, Oklahoma area, and the majority of Team's documents related to Most's claims were located at...