Welch, Kelly J. and Allison Welch v. Reynolds Metals Company and Arlon Boatman--Appeal from 36th District Court of San Patricio County

NUMBER 13-99-394-CV 
  
 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

___________________________________________________________________

KELLY J. WELCH AND ALLISON WELCH, Appellants,

v.

REYNOLDS METALS COMPANY AND ARLON BOATMAN, Appellees.

___________________________________________________________________

On appeal from the 36th District Court
of San Patricio County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Chief Justice Seerden

This is an appeal from the trial court's grant of summary judgment. Kelly J. Welch(1), appellant, was employed by Reynolds Metals Company (Reynolds), appellee, during which time, he contends, he was exposed to asbestos fibers which infiltrated his lungs, resulting in a subsequent diagnosis of asbestosis. Welch brought a lawsuit against Reynolds and Arlon Boatman, a supervisor employed by Reynolds, contending that Reynolds and Boatman were aware of, but consciously disregarded, a substantial certainty that he would suffer asbestos-related injuries.(2) Reynolds filed a no-evidence motion for summary judgment. Tex. R. Civ. P. 166a(i). The trial court subsequently granted Reynolds' motion, and this appeal ensued. We reverse and remand.

Factual Summary

Welch began his employment with Reynolds on or about December 31, 1986. He was employed at Reynolds' Sherwin Alumina plant in Gregory, Texas. Welch contends that during the course of his employment, he was required, on numerous instances, to work with asbestos-containing products. He alleges that until 1993, Reynolds did not discuss either the dangers of working with asbestos or the precautionary measures available to prevent inhalation of asbestos fibers. Welch asserts that in 1993, Reynolds' employees informed him of the dangers of asbestos exposure and recommended that he use protective equipment to prevent inhalation of asbestos fibers. In 1995, Welch was diagnosed with asbestosis.

Welch filed this lawsuit alleging that Reynolds was liable for intentional injury to him, battery, intentional infliction of emotional distress, malice, and fraud. He contended that Reynolds was aware of a "substantial certainty" that he would suffer injury. Reynolds brought its no-evidence motion for summary judgment alleging that there was no evidence of intentional conduct because Welch could not demonstrate that Reynolds had either a specific intent to cause a specific injury or an awareness of a substantial certainty that its conduct would result in harm to Welch.

Welch filed a response, which, inter alia, included the affidavit of Richard Cohen, M.D. Dr. Cohen's affidavit recites that after reviewing numerous documents supplied by Reynolds, that it was his opinion that "Reynolds Metals Company realized that if their workers such as Kelly Welch were exposed to harmful levels of asbestos, those workers were substantially certain to contract asbestos-related injuries." Dr. Cohen further opined that the documents demonstrated that Reynolds had implemented policies and procedures to protect against asbestos exposures. He concluded, however, that those policies and procedures were either not being effectively conveyed to workers such as Welch, or that the policies were being ignored or not followed. Dr. Cohen stated that Reynolds must have been aware that Welch was being exposed, without protection, to visible levels of asbestos-containing dust. He related that Reynolds had placed Welch on an asbestos surveillance program as early as 1987 and opined that Welch was placed in that program because Reynolds realized Welch's job entailed a significant possibility of asbestos exposure. Dr. Cohen concluded that "Reynolds Metals Company knew to a substantial certainty that workers such as Kelly Welch would contract asbestos diseases by reason of their jobs at the Gregory, Texas plant."

Reynolds filed a reply to Welch's response. On the same day, Reynolds filed a motion to strike Cohen's affidavit on the basis that Cohen did not satisfy the reliability requirements imposed upon experts. See e.g., Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Gamill v. Jack Williams Chevrolet, 972 S.W.2d 713, 726-727 (Tex. 1998); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). Without making an express ruling on this motion, the trial court granted summary judgment in favor of Reynolds, ruling that it had "examined the Motion [for summary judgment] and summary judgment evidence" in reaching its conclusion.

By a single issue, Welch contends that the trial court erred in concluding that there was no evidence from which a jury could have determined that Reynolds was substantially certain that its acts and omissions would result in his injury.

Standard of Review A no-evidence summary judgment is the functional equivalent of a pre-trial directed verdict. Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.--Corpus Christi 1999, pet. denied). Accordingly, in reviewing the grant of a no-evidence summary judgment, this Court applies the legal sufficiency standard of review used in reviewing directed verdicts. Id.; see also Macias v. Fiesta Mart, 988 S.W.2d 316, 316-17 (Tex. App.--Houston [1st Dist.] 1999, no. pet.); Moore v. K-Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied); cf. Morgan v. Rogers, 27 S.W.3d 928, 929 (Tex. 2000) (tacitly adopting same standard). We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was granted, disregarding all contrary evidence and inferences. Zapata, 997 S.W.2d at 747 (citing Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). The trial court may not grant a no-evidence summary judgment if the respondent brings forward more than a scintilla of probative evidence which raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Zapata, 997 S.W.2d at 747. When the evidence creates a probability that reasonable and fair-minded people could differ in the conclusions reached from that evidence, it is more than a scintilla. Zapata, 997 S.W.2d at 747 (citing Moore, 981 S.W.2d at 269; Havner, 953 S.W.2d at 711). Courts have repeatedly noted that where there is a question of intent, summary judgment will generally not be proper, because the issue of intent is fact-intensive and is usually left to the fact finder. See Frias, 999 S.W.2d at 106; RRR Farms, Ltd. v. American Horse Ass'n, Inc., 957 S.W.2d 121, 132 (Tex. App.--Houston [14th Dist.] 1997, pet. denied); Bauer v. Jasso, 946 S.W.2d 552, 556 (Tex. App.--Corpus Christi 1997, no pet.); see also State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374 (Tex. 1993) (question of intent to harm another is generally a question of fact uniquely within the province fo the jury).

In the instant case, Welch brought copious summary judgment evidence. Reynolds, however, focuses on its motion to strike Cohen's affidavit and contends that without the affidavit, Welch has not fulfilled his burden to present evidence. Accordingly, we will initially consider the trial court's disposition of Cohen's affidavit in determining whether summary judgment was proper here.

Ruling on Cohen's Affidavit

Texas Rule of Appellate Procedure 33.1 provides:

(a) In general. As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by timely request, objection, or motion . . . .; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly . . . .

Tex. R. App. P. 33.1(a) (emphasis supplied). Several courts have now recognized that the emphasized language in the rule has loosened the once-mandatory rule that an express ruling is required to preserve a complaint for appeal. See Hardman v. Dault, 2 S.W.3d 378, 381 (Tex. App.--San Antonio 1999, no pet.); Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.--Fort Worth 1999, pet. denied); Blum v. Julian, 977 S.W.2d 819, 823 (Tex. App.--Fort Worth 1998, no pet.). Thus, error may be preserved without an express ruling on a motion, so long as the record indicates in some way that the trial court ruled on the objection either expressly or implicitly. See Frazier, 987 S.W.2d at 610 (citing Tex. R. App. P. 33.1(a)).

Reynolds contends that the trial court's grant of its motion for summary judgment indicates that the court implicitly granted its motion to strike Welch's summary judgment evidence. Reynolds relies on the reasoning in Frazier and Blum for its conclusion. We disagree.

In Frazier, the parties were involved in an automobile accident. Frazier filed suit against Yu; Yu filed a no-evidence motion for summary judgment. Frazier, 987 S.W.2d at 608. Prior to a scheduled hearing on the motion for summary judgment, Frazier filed two affidavits. Id. Yu moved to strike the affidavits. The trial court granted Yu's motion for summary judgment and noted on its docket sheet that Frazier did not submit any summary judgment evidence. Id. The court of appeals affirmed the judgment, seizing upon the fact that the trial court specifically stated that it had reviewed "all competent summary judgment evidence." Id. (emphasis in original). The acknowledgment that it had reviewed only the competent summary judgment evidence led to an inference that the trial court "implicitly sustained Yu's objections." Id.

The present case is distinguishable from Frazier. In its order granting summary judgment, the trial court refers only generically to the summary judgment evidence before it. By referring to some of the summary judgment evidence before it as "competent," the Frazier court necessarily implied that it had decided that other evidence before it was not competent. By making that determination, the trial court necessarily had dismissed some of the evidence before it. The only motion to support dismissing any of the evidence was Yu's motion to strike. This implied that the trial court had sustained Yu's objections. Here, there is nothing, short of the grant of the motion for summary judgment, which leads to the conclusion that the court had made any determination regarding Reynolds' motion.

Similarly, reliance upon the reasoning in Blum is misplaced here. Blum filed a lawsuit against Julian. Blum, 977 S.W.2d at 821. Julian moved for summary judgment providing affidavits as summary judgment proof. Id. Blum objected to Julian's affidavit. Id. at 823. Without expressly ruling on Blum's objections, the trial court granted summary judgment for Julian. Id. at 821. The court of appeals concluded that the fact that the trial court granted Julian's motion for summary judgment created an inference that Blum's objections had been implicitly overruled. Id. at 823-24.

Unlike the present case, however, the inference in Blum is incontrovertible. In Blum, Julian's affidavits were her only summary judgment evidence. Id. at 821. Had the trial court sustained Blum's objections, Julian would have been left without any summary judgment evidence and only one conclusion, denial, would have obtained on Julian's motion for summary judgment. Here, by contrast, Welch presented additional evidence, beyond Cohen's affidavit, to establish the elements of his claims. While it is plausible to conclude that the trial court might have chosen to strike Cohen's affidavit, it is equally plausible that the court simply concluded that Welch had not presented sufficient evidence to establish his claims. Regardless of the merits of that conclusion, there is nothing in the record, short of surmise, which supports the conclusion that the trial court sustained Reynolds' objections to Cohen's affidavit.

We conclude that the record does not support the conclusion that the trial court's failure to rule on the motion to strike should be construed as an implicit grant of that motion.

Propriety of Summary Judgment

Next, we must consider whether summary judgment was proper in light of the evidence, including Cohen's affidavit, adduced by Welch.

In most instances, an employee who suffers a job-related injury must proceed under the Texas Workers' Compensation Act to achieve a remedy.(3) See Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985); Frias v. Atlantic Richfield Co., 999 S.W.2d 97, 103 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). However, when the employee can demonstrate that his injury is the result of the employer's intentional conduct, the exclusivity of the workers' compensation remedy is lifted. See Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex. 1989). The burden of proving that an employer's actions rise to a level permitting recovery for intentional conduct is substantial. In general, "the intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury." Reed, 689 S.W.2d at 407.

The line of demarcation between an actionable, intentional act and a dangerous, yet nevertheless non-compensable, negligent act is ambiguous. Moreover, this issue has not been addressed in any cases in which the motion for summary judgment was brought pursuant to rule 166a(i). Regardless, two seminal cases provide some guidance in this context.

In Reed, after George Copelin was injured while operating a lathe which had been modified, his wife alleged that Reed Tool intentionally caused his injuries. Id. at 405. The trial court granted Reed Tool's motion for summary judgment. On discretionary review, the supreme court affirmed. The court concluded that there was no summary judgment evidence to create a fact question as to whether Reed Tool was substantially certain that its actions would result in injury to Copelin. In reaching this conclusion, the court explained that the nature of the employer's liability stems from "the intentional versus the accidental quality of the injury." Id. at 407. Copelin presented two witnesses and each testified that he had no knowledge that anyone from Reed Tool intended to harm Copelin. They testified that they believed the injury happened because Copelin attempted to operate the machine improperly. They acknowledged that some employees did not want to operate the machine and that injuries had previously occurred. The court explained that this testimony might create a fact issue as to gross negligence, but that it did not support a theory of intentional injury. Id. at 408.

In a somewhat similar case, the supreme court reached the opposite conclusion. See Rodriguez, 763 S.W.2d at 413. In Rodriguez, Juan Rodriguez was employed by Naylor Industries. He was told to drive a truck from Rockport, Texas to Port Lavaca and then to Corpus Christi. Id. at 412. Before departing for this trip, Rodriguez examined the tires on the truck and discovered that they had no tread and were cracked. Id. Rodriguez reported the condition of the tires to his supervisor, but was told that he could either drive the truck as instructed, in its then-existing condition, or give up his job. Id. Rodriguez decided to drive the truck and upon doing so, one of the front tires blew out. Id. Another Naylor supervisor instructed Rodriguez to replace the blown-out tire with one of the four tires attached to the back axle. Id. Rodriguez again objected, but the second supervisor told him to continue until he could obtain a new tire. Proceeding in that condition, Rodriguez was injured when one of the rear tires blew out, causing the truck to flip over. Id.

His wife brought an action to recover for Naylor's intentional conduct in causing Rodriguez's injuries. Naylor brought a motion for summary judgment based on Rodriguez's deposition testimony that "he did not know of any reason that anyone at Naylor would want to see him injured." Id. at 413. The trial court granted summary judgment. Id. at 412. On review, the supreme court noted that "just as an employee's lack of awareness is not conclusive on the issue of an employer's intent, neither is an employer's statement that he had no subjective intent to injure an employee." Id. The court acknowledged that Rodriguez's wife had presented two affidavits, one of a former Naylor supervisor who had personal knowledge of the truck in question, and one of an experienced accident reconstructionist. Both affiants averred that "if the truck were driven in the condition described by Juan Rodriguez, his supervisor at Naylor would be substantially certain that the blowout would occur." Id. The former Naylor supervisor added that "a supervisor would also be substantially certain that the blowout would cause the truck to go out of control." Id. The supreme court determined that this evidence was sufficient to create a fact question and warranted reversal of the summary judgment.

The instant case is closer to Rodriguez than to Reed. The Reed court noted the inherent difference between accidents which result from unsafe work conditions and injuries which are directly attributable to the intentional choice to maintain an unsafe condition. The court specifically noted in Reed that Copelin's co-workers acknowledged that his injuries were likely the result of misuse of the lathe. By contrast, in Rodriguez, the court focused on the evidence which tended to show that roll-over was substantially certain to follow from the fact that the tires on the truck were maintained in an unsafe condition. In other words, a significant difference between Reed and Rodriguez stems from the fact that the summary judgment proof showed that specific injury Rodriguez suffered was exactly the injury which was substantially certain to occur from Naylor's conduct; Copelin's injuries were wholly accidental, even though attributable to Reed Tool's actions. Here, based on his allegations, the injury Welch complains of is not simply an indirect consequence of Reynolds' actions; if proven, it is precisely the foreseeable injury likely to follow from Reynolds' alleged actions.

Since Reed and Rodriguez, the courts of appeal have likewise struggled with determining the distinction between intentional injury, as evidenced by a substantial certainty of injury, and non-intentional injuries. See e.g., Frias, 999 S.W.2d at 106; Feazell v. Mesa Airlines, Inc., 917 S.W.2d 895, 901 (Tex. App.--Fort Worth 1996, pet. denied); Kielwein v. Gulf Nuclear, Inc., 783 S.W.2d 746, 748 (Tex. App.--Houston [14th Dist.] 1990, no pet.). In Kielwein, the plaintiff was instructed to de-contaminate an area in which highly radioactive isotopes had been spilled. Kielwein, 783 S.W.2d at 747. He asked for, but was not provided with any safety equipment. Id. Kielwein was subsequently tested and radioactive materials were discovered in his body. Id. The trial court granted summary judgment for Gulf Nuclear, Kielwein's employer.

The court of appeals reversed, relying heavily on the affidavit of Kielwein's expert who opined that Kielwein's injury was substantially certain to follow from Gulf Nuclear's failure to provide appropriate protective measures. The expert further stated that it was "impossible for Gulf Nuclear to have been unaware that exposing [Kielwein] to such risks without any protection whatsoever would be substantially certain to cause" Kielwein's exposure to radiation. The court of appeals held that the expert's affidavit raised a material fact question. Id. at 748.

Reynolds argues that Kielwein is inapposite because in Kielwein, there was no challenge to the qualifications of the expert. Reynolds contends that because Cohen's opinions are unreliable, his affidavit should not be considered here. This, Reynolds suggests, makes the holding in Kielwein irrelevant to our consideration of this case.

There is no support in the record for the assertion that the trial court implicitly sustained Reynolds' objections to Cohen's testimony. Accordingly, Cohen's opinions continue to serve as part of Welch's summary judgment evidence.

Nevertheless, Reynolds also contends that Cohen's opinions are unreliable as a matter of law. There is a clearly expressed preference for the trial court to serve as the "gatekeeper" with regard to experts, determining both qualification and reliability. See Tex. R. Evid. 104(a); Gamill, 972 S.W.2d at 728; Robinson, 923 S.W.2d at 556. The trial court did not serve as a "gatekeeper" here. Because we have concluded that the trial court did not rule in this capacity, we do not have jurisdiction to review this issue.(4) Tex. R. App. P. 33.1(a)(2)(A). In the absence of such a determination, we conclude that Cohen's affidavit, like the expert affidavit in Kielwein, suffices to create a genuine issue of material fact because it presents more than a scintilla of probative evidence which tends to put Reynolds' intent in question.(5)

Like the affidavit in Kielwein, Cohen's affidavit recites that it would have been impossible for Reynolds to have been unaware of Welch's exposure and the likelihood of injury. From this, Cohen concludes that Reynolds was substantially certain that Welch would contract an asbestos-related disease. This evidence contradicts Reynolds' assertions that it did not intend to cause Welch harm. Resolving such conflicts is inherently the province of the fact finder.

Summary Judgment on Other Tortious Theories

Finally, we must address Reynolds' assertion that Welch has not contested the entry of judgment on any of his other tortious theories: assault and battery, intentional infliction of emotional distress, gross negligence, and fraud. However, that assertion is not borne out by appellant's brief. We agree with Welch that the motion for summary judgment was premised entirely upon the lack of evidence to show intent, without regard to the specific claims raised in Welch's original petition. Welch's proof with regard to intent, in that circumstance, is sufficient to create genuine issues of material fact with regard to all of his tortious claims.

Conclusion

Because the trial court did not make a ruling on Cohen's reliability, and because Cohen's affidavit presents more than a scintilla of evidence to create a genuine issue of material fact with regard to Reynolds' intent, we conclude that the trial court erred in granting summary judgment for Reynolds. We also conclude that notwithstanding Cohen's affidavit, Welch has produced sufficient evidence to create a genuine issue of material fact. Welch's issue is sustained.

The judgment of the trial court is REVERSED and REMANDED for new trial.

ROBERT J. SEERDEN, Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 29th day of December, 2000.

1. Allison Welch, wife of Kelly J. Welch, is also an appellant in this action. For the sake of clarity, we will refer to the appellants in the singular, "Welch."

2. Welch refers to Reynolds and Boatman generically as "defendants" throughout his brief and makes no argument specific to either. Similarly, all motions and briefs filed by "defendants" in this action were filed jointly by Reynolds and Boatman. Accordingly, we will consider the propriety of the summary judgment as to both, jointly.

3. Welch attached his own affidavit to his response to Reynolds motion for summary judgment. In his affidavit, Welch asserts that he has not received or sought any worker's compensation benefits related to his asbestos disease.

4. Even were we to consider Cohen's qualifications or reliability, in the absence of a ruling, there is no record upon which we can make an assessment of such things. The only material in the record related to Cohen's qualifications is Cohen's affidavit, a curriculum vitae attached to his affidavit, and repeated references in Reynolds' motion to strike to Cohen's deposition testimony. We have not found a copy of Cohen's deposition anywhere in the record. This bare record is an insufficient basis upon which to make any conclusions regarding the propriety of Cohen's affidavit.

5. We also note that Welch presented his own affidavit which is comprised of readily controvertible factual assertions and numerous memoranda which suggest that Reynolds was aware of the hazards of asbestos exposures but did nothing to limit the likelihood of exposure. Also included in Welch's summary judgment evidence are memoranda which memorialize Welch's inclusion on an asbestos surveillance program as early as 1987, or within a year of Welch's employment. While we conclude that Cohen's affidavit creates a question of material fact regarding Reynolds' intent, we are also convinced that the remaining evidence, taken as a whole, would also suffice to create a question of material fact.