Ashley Denham as Parent and Legal Guardian of F.L.J.B., a Minor Child v. Texas Mutual Insurance Company ( 2015 )

ACCEPTED
07-14-00435-cv
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
2/20/2015 9:52:32 AM
Vivian Long, Clerk
No. 07-14-00435-CV
IN THE
FILED IN
7th COURT OF APPEALS
SEVENTH COURT OF APPEALS AMARILLO, TEXAS
2/19/2015 9:52:32 AM
Sitting in Amarillo, Texas VIVIAN LONG
__________________________ CLERK
ASHLEY DENHAM as parent and legal guardian of FREEDOM LYNN JEAN BURRIS, a
minor child,
Appellant,
v.
TEXAS MUTUAL INSURANCE COMPANY
Appellee.
_____________________
Appeal in Cause No. 98,186-A
th
from the 47 District Court in and for Potter County, Texas
________________________________________________________________________
BRIEF OF APPELLANT, ASHLEY DENHAM as parent and legal guardian of
FREEDOM LYNN JEAN BURRIS, a minor child
________________________________________________________________________
THE WARNER LAW FIRM
101 S.E. 11th, Ste. 301
Amarillo, Texas 79101
Tele: 806.372.2595
Fax: 866.397.9054
e-mail: mike@thewarnerlawfirm.com
e-mail: brent@thewarnerlawfirm.com
Michael A. Warner
Texas Bar No. 20872700
Brent C. Huckabay
Texas Bar No. 24085879
APPELLANT REQUESTS ORAL ARGUMENT
No. 07-14-00435-CV
ASHLEY DENHAM as parent and legal guardian of FREEDOM LYNN JEAN BURRIS, a
minor child,
Appellant,
v.
TEXAS MUTUAL INSURANCE COMPANY
Appellee.
________________________________________________________________
IDENTITY OF PARTIES & COUNSEL
________________________________________________________________
APPELLANT: Ashley Denham as legal guardian of Freedom Lynn Jean Burris, a
minor children
1117 Parr St.
Amarillo, Texas 79106
ATTORNEYS FOR Michael A. Warner TSB# 20872700
APPELLANT: The Warner Law Firm Tele: 806.372.2595
101 S.E. 11th, Ste. 301 Fax: 866.397.9054
Amarillo, Texas 79101 e-mail:
mike@thewarnerlawfirm.com
Brent C. Huckabay TSB# 24085879
The Warner Law Firm Tele: 806.372.2595
101 S.E. 11th, Ste. 301 Fax: 866.397.9054
Amarillo, Texas 79101 e-mail:
brent@thewarnerlawfirm.com
APPELLEE: Texas Mutual Insurance Company
P.O. Box 12029
Austin, Texas 78711-2029
ATTORNEY FOR Arleen Matthews TSB#: 24026868
APPELLEE: Crenshaw, Dupree, & Tele: 806.762.5281
Milam, L.L.P. Fax: 806.762.3510
P.O. Box 1499 e-mail:
Lubbock, Texas 79408 amatthews@cdmlaw.com
i
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL ...................................................... i
INDEX OF AUTHORITIES ......................................................................... iii
Cases……………………………………………………………….. iii
Statutes……………………………………………………………... iv
STATEMENT OF THE CASE ..................................................................... 1
Issue 1: Whether the trial court erred in granting Defendant’s Motion for
Summary Judgment ………………………………………….…… 3
STATEMENT OF FACTS............................................................................ 3
SUMMARY OF THE ARGUMENT............................................................ 4
ARGUMENT................................................................................................. 4
A. Standard for Review……………………………………….. 4
B. A Material Issue of Fact Exits with Regard to Decedent’s
Intoxication………………………………………………… 5
C. The Affidavit of Dr. Robert J. Philips was based on
Personal Knowledge……………………………………….. 6
PRAYER ...................................................................................................... 7
CERTIFICATE OF SERVICE ..................................................................... 9
CERTIFICATE OF COMPLIANCE WITH TARP 9.4(i),……...…………. 9
APPENDIX………………………………………………………………… 10
ii
INDEX OF AUTHORITIES
CASES
Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 258
(Tex. App. - Corpus Christi 1997, n.w.h.)…………………………………. 6
Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 115
(Tex.App.-Beaumont 2005, pet. denied)…………………………………... 6
Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994)…………... 7
Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)…………. 5
Burroughs Welcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)//……. 5
Collins v. County of El Paso, 954 S.W.2d 137, 145
(Tex. App. - El Paso 1997, n.w.h.)………………………………………… 6
DR Partners v. Floyd, 228 S.W.3d 493, 497
(Tex. App.—Texarkana 2007, pet. denied)………………………………... 5
Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952)…………………… 6
Keenan v. Gibraltar Sav. Ass'n, 754 S.W.2d 392, 394
(Tex. App.--Houston [14th Dist.] 1988, no writ)………………………….. 7
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)………… 5
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)…………… 4
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)… 5
Progressive Cnty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 806
(Tex. 2009) (per curium)…………………………………………………… 5
Rizkallah v. Conner, 952 S.W.2d 580, 587
(Tex.App.-Houston [1st Dist.] 1997, no writ.)……………………………... 6
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)…….. 4
iii
STATUTES
Texas Labor Code Ann. §401.013………………………………………… 1, 2, 4
Texas Labor Code Ann. §401.013(a)(2)(B).………………………………. 3
Texas Labor Code Ann. §401.013(c)……..………………………………... 3
Texas Labor Code Ann. §406.032(1)(A)…..……………………………… 3
Texas Health & Safety Code §481.002…………………………………….. 4
Texas Rule of Civil Procedure 166a(i),…………………………………….. 4
Texas Rule of Civil Procedure 166a(c)…….……………………………….. 5
iv
No. 07-14-00435-CV
ASHLEY DENHAM as parent and legal guardian of FREEDOM LYNN JEAN BURRIS, a
minor child,
Appellant,
v.
TEXAS MUTUAL INSURANCE COMPANY
Appellee.
________________________________________________________________
APPELLANT, ASHLEY DENHAM as parent and legal guardian of FREEDOM LYNN
JEAN BURRIS, a minor child’s BRIEF
________________________________________________________________
Appellant, ASHLEY DENHAM as parent and legal guardian of FREEDOM LYNN
JEAN BURRIS, a minor child, submits her brief to this Honorable Court. Appellant will be
referred to as “Appellant” or ASHLEY DENHAM as parent and legal guardian of
FREEDOM LYNN JEAN BURRIS, a minor child. Appellee, TEXAS MUTUAL
INSURANCE COMPANY will be referred to as “Appellee”.
STATEMENT OF THE CASE
Nature of the case. This case was brought pursuant to a request for judicial review of a
determination by the Division of Worker’s Compensation of Texas Insurance Commission
Appeals Panel which rendered a decision that the claimed injury occurred while decedent was in a
state of intoxication as defined by Texas Labor Code §401.013 and the carrier is relieved of
liability for compensation.
Course of Proceedings ASHLEY DENHAM as parent and legal guardian of
1
FREEDOM LYNN JEAN BURRIS, a minor child, filed a workers’ compensation claim on
behalf of her minor child after decedent, Donnie Lee Burris, was killed in a motor vehicle
accident on August 8, 2008, while in the course and scope of his employment. At the time of the
accident, Decedent and another employee were in an employee-owned vehicle traveling to a job
site in Clovis, New Mexico. Decedent was driving at the time of the accident. Plaintiff prevailed
in the initial Contested Case Hearing (CCH) wherein the Hearing Officer’s Decision and Order
determined that Decedent was in the course and scope of his employment at the time of the
accident. Defendant appealed that decision to the Appeals Panel and the case was remanded back
to the Hearing Officer for further consideration and an additional issue of intoxication was added.
On July 28, 2009, a second CCH was held and the Hearing Officer determined that the
claimed injury did not occur while Decedent was in a state of intoxication as defined by Texas
Labor Code Ann. §401.013 and Defendant was not relieved of liability from compensation to the
minor child beneficiary, Freedom Lynn Jean Burris, for the death of her father while in the course
and scope of his employment with Panhandle Fire Protection, LLC on August 4, 2008 (CR 10-
13). Defendant again appealed the adverse ruling of the Hearing Officer to Appeals Panel No.
091309 which reversed the Decision and Order of the Hearing Officer on October 30, 2009 (CR
14-19). Plaintiff filed her Request for Judicial Review of the Appeals Panel decision on
December 8, 2009 (CR 4-9). Defendant filed a Motion for Summary Judgment on September 4,
2014 (CR 24-27). Plaintiff filed Plaintiff’s Memorandum in Response to Defendant’s Motion for
Summary Judgment on October 3, 2014 (CR 28-46). Defendant filed Defendant’s Objections to
Plaintiff’s Summary Judgment Evidence and Reply to Plaintiff’s Memorandum in Response to
2
Defendant’s Motion for Summary Judgment on October 23, 2014 and (CR 47-54).
Trial court disposition. The trial court signed the Defendant’s Motion for Summary
Judgment on November 19, 2014 and the Order was filed on November 20, 2014 (CR 55). There
was no mention in the Court’s Order as to whether the Court was granting Traditional Motion for
Summary Judgment or a No-Evidence Motion for Summary Judgment.
ISSUE PRESENTED FOR REVIEW
Issue 1: Whether the trial court erred in Defendant’s Motion for Summary Judgment.
STATEMENT OF FACTS
Appellee is the Carrier for Panhandle Fire Protection LLC. It is undisputed that Decedent,
Donnie Lee Burris, was an employee of Panhandle Fire Protection LLC and was killed in a motor
vehicle accident while in the course and scope of his employment. At issue in the underlying
administrative proceedings and on appeal to the trial court was whether or not Decedent was
intoxicated at the time of the accident. Texas Labor Code §406.032(1)(A) provides that the
Carrier (Appellee) is not liable for compensation if the injury occurred while the employee was in
a state of intoxication. Texas Labor Code §401.013(a)(2)(B) defines intoxication as not having
the normal use of mental or physical faculties resulting from the voluntary introduction into the
body of a controlled substance or controlled substance analogue as defined by Section 481.002 of
the Texas Health & Safety Code. Texas Labor Code Section 401.013(c), amended effective
September 1, 2005, provides that on the voluntary introduction into the body of any substance
listed under Subsection (a)(2)(B), based on a blood test or urinalysis, forms a rebuttable
presumption that a person is intoxicated and does not have the normal use of mental or physical
3
faculties. The burden of proof then shifts to the claimant beneficiary, the minor child, to prove
that Decedent was not intoxicated at the time of the injury (i.e. at the time of death).
SUMMARY OF THE ARGUMENT
Appellant contends that the trial court erred in granting a traditional summary judgment or,
in the alternative, a no-evidence summary judgment because there is a genuine dispute of a
material issue of fact whether the claimed injury (i.e., Decedent’s death) occurred while the
Decedent, Donnie Lee Burris, was in a state of intoxication as defined in Texas Labor Code Ann.
§401.013, which would relieve Appellee of liability from compensation.
Appellee objected to the affidavit of Dr. Robert J. Philips, but did not obtain a written
ruling on same or file a Motion to Strike Dr. Philips’ affidavit. The trial court’s order did not
address the affidavit of Dr. Philips or any evidentiary matters specifically. The crux of Appellee’s
argument appears to center on Dr. Philips’ affidavit contending that the affidavit failed to contain
some sort of magic language involving “personal knowledge.”
ARGUMENT & AUTHORITIES
A. Standard of Review
Appellate courts review the granting of a motion for summary judgment de novo. See
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a movant files a no-
evidence motion in proper form under Texas Rule of Civil Procedure 166a(i), the burden shifts to
the non-movant to defeat the motion by presenting evidence that raises an issue of material fact
regarding the elements challenged by the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
4
582 (Tex. 2006). In other words, the non-movant must respond to a no-evidence motion by
presenting more than a scintilla of probative evidence on each challenged element. See King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); DR Partners v. Floyd, 228 S.W.3d
493, 497 (Tex. App.—Texarkana 2007, pet. denied).
More than a scintilla of evidence exists when the evidence, as a whole, "rises to a level
that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Welcome Co. v.
Crye, 907 S.W.2d 497, 499 (Tex. 1995)). The movant in a traditional motion for summary
judgment, filed pursuant to Rule 166a(c), has the burden of showing that no genuine issue of
material fact exists and that it is entitled to a summary judgment as a matter of law. See Am.
Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). The trial court must indulge every
reasonable inference in favor of the non-movant and resolve all doubts in his favor. Id. When, as
here, the trial court's order granting summary judgment does not specify the grounds relied upon,
the summary judgment may be affirmed if any of the summary judgment grounds are meritorious.
Progressive Cnty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 806 (Tex. 2009) (per curium).
B. A Material Issue of Fact Exits with Regard to Decedent’s Intoxication
At the CCH on July 28, 2009, both Appellant and Appellee brought forth testimony from
expert witnesses for the Hearing Officer. All parties were allowed the opportunity to cross
examine witnesses. The Hearing Officer rendered his Decision and Order finding in favor of
Appellant and it was this initial ruling in Appellant’s favor that was appealed by the Appellee to
the Appeals Panel. In cases involving controlled substances, there is no level or test defined by the
5
statute that establishes per se if a person has lost use of his or her physical and mental faculties.
Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 115 (Tex.App.-Beaumont 2005, pet. denied).
A fact issue should arise as a matter of law with regard to intoxication because there is no level or
test which determines even a minimum threshold level of marijuana metabolites or other
controlled substance(s) present to indicate intoxication or whether or not a person has lost control
of his or her physical and mental faculties.
See Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952) (noting that the purpose of
summary judgment Rule 166a is not to deprive litigants of their right to trial when there is an
issue of fact); Collins v. County of El Paso, 954 S.W.2d 137, 145 (Tex. App. - El Paso 1997,
n.w.h.); Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 258 (Tex. App. - Corpus Christi
1997, n.w.h.). The issue as to whether or not Decedent was intoxicated at the time of the accident
is a decision for the jury to decide.
C. The Affidavit of Dr. Robert J. Philips was based on Personal Knowledge
The affidavit of Dr. Robert J. Philips was based on his personal knowledge of the case
derived from Dr. Philips’ testifying at the CCH on the review of the underlying facts and his own
personal research substantiating his opinion in his letter which was made a part of the
administrative record and also in the trial court. See Rizkallah v. Conner, 952 S.W.2d 580, 587
(Tex.App.-Houston [1st Dist.] 1997, no writ.). Dr. Philips specifically mentions in his verification
that he opined (“personally”) in the underlying administrative hearing that in his expert opinion
the postmortem drug levels found in Decedent’s drug screens were “totally invalid due to the
rapid redistribution from storage tissues.” Dr. Philips’ letter makes specific mention that he hopes
6
that his explanation is helpful in this case and if further explanation was needed, to “let him
know.”
A verification, attached to the motion or response, that the contents are within the affiant's
knowledge and are both true and correct does not constitute a proper affidavit in support of
summary judgment under Rule 166a(f). Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex.
1994) (citing Keenan v. Gibraltar Sav. Ass'n, 754 S.W.2d 392, 394 (Tex. App.--Houston [14th
Dist.] 1988, no writ) (referring to what was then Rule 166a(e)). The affidavit must itself set forth
facts and show the affiant's competency, and the allegations contained in the affidavit must be
direct, unequivocal and such that perjury is assignable. Keenan, 754 S.W.2d at 394. There is no
particulars required of an affidavit, the affidavit just must show that it is based on the personal
knowledge of the affiant. The affidavit of Dr. Phillips meets all these requirements, thus is proper
evidence in response to the Defendant’s Motion for Summary Judgment.
CONCLUSION AND PRAYER FOR RELIEF
The trial court incorrectly erred by granting summary judgment to Appellee because there
were material issues of fact regarding Decedent’s intoxication at the time of his death and thus,
the Court should reverse the trial court’s decision granting Summary Judgment in this case.
Appellant prays that this Honorable Court reverse the ruling of the trial court and remand this case
back to the trial court to proceed to trial on the merits.
7
Respectfully submitted,
THE WARNER LAW FIRM
/s/ Michael A. Warner
MICHAEL A. WARNER
State Bar No. 20872700
E-mail: mike@thewarnerlawfirm.com
BRENT C. HUCKABAY
State Bar No. 24085879
E-mail: brent@thewarnerlawfirm.com
101 S.E. 11th, Suite 301
Amarillo, Texas 79101
Tele: 806.372.2595
Fax: 866.397.9054
ATTORNEYS FOR APPELLANT
8
Certificate of Service
I certify that a true copy of this the Brief of Appellant, Ashley Denham as parent and legal
guardian of Freedom Lynn Jean Burris, a minor child was served in accordance with rule 9.5 of the
Texas Rules of Appellate Procedure on each party or that party's lead counsel as follows:
TEXAS MUTUAL INSURANCE COMPANY, represented by
Arlene Matthews, Crenshaw, Dupree & Milam, L.L.P.
P.O. Box 1499 Certified mail Delivery service
Lubbock, Texas 79408-1499 _______________ _______________
Tele: 806.762.5281 Fax transfer Personal delivery
Fax: 806.762.3510 #_____X____ _______________
Date of service: February 19, 2015
Signed this 19th day of February, 2015.
/s/ Michael A. Warner
Michael A. Warner
CERTIFICATE OF COMPLIANCE WITH TARP 9.4(i)
I certify that the Appellant’s Brief is in compliance with Texas Appellate Rule of
Procedure 9.4(i). The total word count for the document is 3284. The Total page length is 18
pages.
Signed this 19th day of February, 2015
/s/ Michael A. Warner
Michael A. Warner
9
APPENDIX
Affidavit of Dr. Phillips……………………………………………………. A
Dr. Phillips Letter for CCH………………………………………………… B
10
EXHIBIT A
EXHIBIT B