Hammonds v. Gray Transp., Inc.
United States District Court for the Middle District of Georgia, Macon Division
February 22, 2019, Decided; February 22, 2019, Filed
CIVIL ACTION NO. 5:18-cv-00346-TES

Reporter
2019 U.S. Dist. LEXIS 28236 *
MICHAEL EDWARD HAMMONDS, BILLY WAYNE NIPPER, and DEBBIE BLACK, individually, and MICHAEL EDWARD HAMMONDS and BILLY WAYNE NIPPER, AS CO-ADMINISTRATORS OF THE ESTATE OF BETTY JEAN NIPPER, DECEASED, Plaintiffs, v. GRAY TRANSPORTATION, INC.; MICHAEL G. ELIAS; RYDER TRUCK RENTAL; and HUDSON INSURANCE COMPANY; Defendants.

ORDER DENYING MOTION TO STAY AND GRANTING MOTION TO DISMISS
Before the Court is Defendants Gray Transportation, Inc. and Michael G. Elias’s Motion to Stay Proceedings Pending Resolution of Criminal Proceeding [Doc. 12] and Defendant Hudson Insurance Company’s Motion to Dismiss [Doc. 16]. After reviewing the parties’ submissions, the Court DENIES the Motion to Stay [Doc. 12] and GRANTS the Motion to Dismiss [Doc. 16]. As the Court has now ruled on all of the pending motions in this case, it LIFTS the stay it previously entered.

BACKGROUND [*2]
This case arises out of a catastrophic auto accident that resulted in the severe injury and ultimate death of Betty Jean Nipper. [Doc. 1, at ¶ 23]. Plaintiffs alleges that at the time of the accident Ms. Nipper was driving a 2014 Honda Accord on Georgia Highway 257 in Dooly County, Georgia. [Id. at ¶ 20]. Plaintiffs further allege that Defendant Elias, a commercial truck driver employed by Defendant Gray Transportation and allegedly acting within the course and scope of his employment, was driving a freightliner truck owned by Defendant Ryder Truck Rental, Inc. (“Ryder”) and allegedly following the Honda Accord “too closely” and “traveling at an excessive rate of speed.” [Id. at ¶¶ 21 & 24]. The accident allegedly occurred when Ms. Nipper, after signaling her intent to turn, attempted to make a left hand turn off of Highway 257 into a driveway. [Id. at ¶ 20]. Plaintiffs maintains that, as Ms. Nipper began to turn, Defendant Elias “attempted to improperly change lanes in the area of a double yellow line/no passing zone to make an improper and unsafe passing maneuver” resulting in a “violent collision.” [Id. at 22].
Following the accident, Plaintiffs Michael Edward Hammond, Billy Wayne Nipper, [*3] and Debbie Black—Ms. Nipper’s surviving children—brought this action under Georgia’s wrongful death statute. [Id. at ¶ 41]. Plaintiffs Hammond and Nipper also bring this action as co-administrators of Ms. Nipper’s estate to recover for the pain and suffering she experienced as a result of this accident prior to her death. [Doc. 1, at ¶ 39]. Plaintiffs assert claims against Defendant Elias under general theories of negligence and negligence per se and Defendant Gray Transportation under the doctrine of respondeat superior and for negligent hiring, retention, and entrustment; negligent training and supervision; violations “of the Federal Motor Carrier Regulations”; and “under principles of Georgia law applicable to joint ventures.” [Id. at ¶¶ 32 & 34]. Plaintiffs also asserts claims against Defendant Ryder based on its alleged breached of a voluntarily assumed duty to vet drivers, including Defendant Elias, and under the doctrine of respondeat superior and principles of Georgia law applicable to joint ventures. [Id. at ¶ 35]. Finally, Plaintiff asserts claims against Defendant Hudson Insurance based on an excess indemnity agreement it had with Defendant Gray Transportation, a surety [*4] bond it filed for Defendant Gray Transportation, and for its breach of a voluntarily assumed duty to vet potential drivers. [Id. at ¶ 33].
In response to Plaintiffs’ Complaint, Defendants filed the instant motions asking the Court to stay the proceedings and to dismiss the claims as to Defendant Hudson Insurance. See generally [Docs. 12 & 16].
A motion to dismiss tests the sufficiency of the allegations in a plaintiff’s complaint. Acosta v. Campbell, 309 F. App’x 315, 317 (11th Cir. 2009). A complaint survives a motion to dismiss if it pleads “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). But the Court need not accept as true “[t]hreadbare recitals of the elements of a cause of action” or “conclusory statements.” Iqbal, 556 U.S. at 678. Thus, to decide whether a complaint survives a motion to dismiss, district courts are instructed to use a two-step framework. See McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018). The first step is to identify the allegations that are “no more than mere conclusions.” Id. (quoting Iqbal, 556 U.S. at 679). “Conclusory allegations are not entitled to the assumption of truth.” Id. (citation omitted). After disregarding the conclusory allegations, the second step is to “assume any remaining factual allegations are true and determine whether those [*5] factual allegations ‘plausibly give rise to an entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 679).

DISCUSSION

A. Motion to Stay Proceedings [Doc. 12]
In their Motion to Stay Proceedings, Defendants Gray Transportation and Elias ask the Court to stay the proceedings until the state resolves its criminal charges against Defendant Elias. They argue that a stay is necessary to allow them full access to information essential to their defense. Specifically, Defendants Gray Transportation and Elias argue that Georgia Code Annotated § 50-18-72(a)(4) prevents the disclosure of Georgia’s investigative reports of the subject accident while the charges against Defendant Elias are pending.1 [Doc. 12, at p. 3]. They further argue that allowing this case to proceed places Defendant Elias “in the untenable position of not being able to respond to Plaintiffs’ written discovery or otherwise testify in his own defense without waiving his Fifth Amendment rights in the underlying criminal charges.” [Id.]. In response, Plaintiffs argue that Defendants should not be permitted to delay the proceedings when only a small portion of discovery will overlap with information protected by the Fifth Amendment. [Doc. 25, at p. 3].
The Court finds that a stay is not appropriate in this case and therefore denies Defendants Gray Transportation and Elias’s motion. The decision to grant a stay of this type is squarely within the Court’s discretion. See [[Doc. 12, at p. 2]; [Doc. 25, at p. 4]; Fed. R. Civ. P. 26(d)Fed. R. Civ. P. 26(d). Other courts confronted with similar situations have identified several useful factors in guiding the Court’s exercise of its discretion but none of these factors are binding or dispositive. See Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, 87 F.R.D. 53, 56 (E.D. Pa. 1980); Trs. of the Plumbers & Pipefitters Nat’l Pension Fund v. Transworld Mech., 886 F. Supp. 1134 (S.D.N.Y. 1995). But see Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 99 (2d Cir. 2012) (“These tests, [*7] however, no matter how carefully refined, can do no more than act as a rough guide for the district court as it exercises its discretion.”). Of these cases, the Court finds the factors outlined in Golden Quality Ice Cream Co. particularly helpful in deciding this motion. In Golden Quality Ice Cream Co., the court considered the following factors in deciding whether to stay a civil case during the pendency of a parallel criminal case:
(1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation.
87 F.R.D. 53, 56 (E.D. Pa. 1980).
Applying these factors to this case, the Court is persuaded that a stay is not warranted. The Court is sympathetic to the emotional and financial toll that protracted litigation would have on Plaintiffs and gives great weight to their desire to resolve [*8] this dispute expeditiously. [Doc. 25, at p. 6]. The Court is, of course, aware of the difficulties that allowing this case to proceed may impose on Defendants. That said, Defendants were short on specifics as to how the lack of access to certain investigative reports would uniquely prejudice them. Defendants’ arguments on this point are little more than speculation. After all, it may well be the case that the reports are of no value to them whatsoever or that the reports actually damage their legal position—a fact Plaintiffs aptly note. See [Id. at p. 7] (“[Defendant Elias] has the same equal access to law enforcement reports regarding the wreck report as Plaintiffs.”). The Court will not allow this case to linger to avoid such speculative harms.2
Defendants’ arguments with regard to Defendant Elias’s Fifth Amendment rights are less speculative, but ultimately unconvincing. It seems plausible that Defendant Elias will have to contend with the adverse inferences that are permitted in a civil case when a party invokes his Fifth Amendment rights for purposes of a parallel criminal proceeding. See United States v. Two Parcels of Real Prop. Located in Russell Cty., 92 F.3d 1123, 1129 (11th Cir. 1996) (authorizing negative inference in civil proceeding where a plaintiff invokes Fifth Amendment rights to avoid self-incrimination [*9] in parallel criminal proceeding). However, such adverse inferences are only permitted “when independent evidence exists of the fact to which the party refuses to answer.” Joe Hand Promotions, Inc. v. Chios, Inc., 544 F. App’x 444, 446 (5th Cir. 2013) (quoting Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000)). This requirement substantially mitigates the risk of undue prejudice that Defendants complain of so that any such prejudice is outweighed by Plaintiffs’ interest in expeditiously resolving this case.
The Court’s interest in resolving this case quickly and efficiently also weighs against the risk of prejudice about which Defendants Gray Transportation and Elias complain. Defendants offered no evidence (or even conjecture) as to when Defendant Elias’s criminal charges will be resolved. In light of the lack of information on this issue, the Court fears that granting this stay will be the first chapter in a multi-year saga in what should be a relatively straightforward auto accident case. The Court acknowledges that by granting the stay, it would essentially place this case on the shelf to gather dust thereby drawing little from the Court’s scant resources. Nevertheless, even cases on the shelf require periodic maintenance like regular communication with the parties for status updates.
The case does not implicate [*10] the final two factors—the interests of parties not involved in litigation and the interests of the public—identified in Golden Quality Ice Cream Cos. Having weighed the equities of the situation, and exercising its considerable discretion, the Court concludes that granting a stay is unwarranted. Plaintiffs’ interest in quickly resolving their dispute and the Court’s interest in judicial efficiency outweigh the countervailing interests Defendants Gray Transportation and Elias assert. Accordingly, the Court denies the motion to stay.

B. Motion to Dismiss [Doc. 16]
In the second motion before the Court, Defendant Hudson Insurance argues that the Court should dismiss Plaintiffs’ claims against it because it is not subject to direct action under Georgia law. It further argues that Plaintiffs did not plead sufficient facts to support their claim against it in tort. As discussed below, the Court agrees as to both of these issues and dismisses Plaintiffs’ claims against Defendant Hudson Insurance.
A motion to dismiss tests the sufficiency of the allegations in a plaintiff’s complaint. Acosta v. Campbell, 309 F. App’x 315, 317 (11th Cir. 2009). A complaint survives a motion to dismiss if it pleads “sufficient factual matter, accepted as true, to state [*11] a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). But the Court need not accept as true “[t]hreadbare recitals of the elements of a cause of action” or “conclusory statements.” Iqbal, 556 U.S. at 678. Thus, to decide whether a complaint survives a motion to dismiss, district courts are instructed to use a two-step framework. See McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018). The first step is to identify the allegations that are “no more than mere conclusions.” Id. (quoting Iqbal, 556 U.S. at 679). “Conclusory allegations are not entitled to the assumption of truth.” Id. (citation omitted). After disregarding the conclusory allegations, the second step is to “assume any remaining factual allegations are true and determine whether those factual allegations ‘plausibly give rise to an entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 679).
1. Direct Action
To help clarify the arguments the parties are making, the Court briefly recounts the history of Georgia’s direct-action statute. The traditional, common-law rule was that “a plaintiff does not have standing to bring a direct action against a defendant’s insurance company unless the plaintiff has obtained a judgment against the defendant that remains unsatisfied.” Flanders v. Jackson, 344 Ga. App. 493, 810 S.E.2d 656, 658 (Ga. Ct. App. 2018) (quoting Atl. Specialty Ins. Co. v. Lewis, 341 Ga. App. 838, 802 S.E.2d 844, 848 (Ga. Ct. App. 2017)) (internal quotations omitted). The reasoning behind this rule [*12] was that the plaintiff was not in privity of contract with the insurer; therefore, he did not have a cause of action in contract to enforce the underlying obligation. See Hartford Ins. Co. v. Henderson & Son, Inc., 258 Ga. 493, 371 S.E.2d 401, 402 (Ga. 1988). This rule persists as to most insurance contracts unless derogated by statute or a provision of the underlying insurance contract. Id.
In the case of motor carriers,3 the Georgia General Assembly altered the common law rule in 1937 when it enacted a direct-action statute that allowed a plaintiff to join the motor carrier and its insurance carrier or surety bond issuer in a single action. See 1937 Ga. Law 729. That version of the statute stated that
It shall be permissible under this article for any person having a cause of action arising under this article in tort or contract to join in the same action the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action, whether arising in tort or contract.
Id. (emphasis added). This version of the statute remained in effect until 2002 when the Georgia General Assembly amended it to remove any reference to the issuer [*13] of a surety bond. See S.B. 488 2001-2002 Gen. Assemb., Reg. Sess. (Ga. 2002). The 2002 version of the direct-action statute stated: “It shall be permissible under this article for any person having a cause of action arising under this article to join in the same action the motor common carrier or motor contract carrier and the insurance carrier, whether arising in tort or contract.” Id. Critically, the Georgia General Assembly maintained this wording when it extensively amended Georgia’s motor carrier laws in 2012. See Georgia Motor Carrier Act of 2012, 2011 Ga. HB 865. In fact, the only action the General Assembly took with regard to the direct-action statute in 2012 was to recodify it at Georgia Code Annotated § 40-1-112 and include an identical provision at Georgia Code Annotated § 40-2-140. In short, in the 80 years since the Georgia General Assembly enacted this direct-action statute, the only substantial change it has made was to remove any procedural avenue for a plaintiff to bring a direct action against an issuer of a surety bond.
Also relevant to this dispute is the regulatory authority associated with the direct-action statute. In 1929, the Georgia General Assembly delegated rulemaking authority to the Georgia Public Service Commission (“GPSC”) to implement rules for the administration and oversight of motor carriers. See 1929 Ga. Laws 295-96; Ga. Code Ann. §§ 46-7-1 & 46-7-2, repealed by The Georgia Motor Carrier Act, Ga. L. 2012, p. 580, § 16/HB 865 (2012). Exercising this authority, the GPSC enacted Rule 515-16-11-.03(4) of the Rules of Georgia Public Service Commission, which authorized a direct action against the issuer of a surety bond and the issuer of an indemnity insurance policy given in lieu of a bond. See Rule of Ga. Pub. Safety Comm’n 515-16-11-.03(4) (“It shall be permissible under this rule for any person having a cause of action arising under this rule in tort or contract to join in the same action the motor carrier and its surety, in the event a bond is given.”). Then, in 2012, the Georgia General Assembly transferred regulatory authority over motor carriers from the GPSC [*15] to the Georgia Department of Public Safety (“GDPS”). See Ga. Code Ann. § 40-1-54(a). However, the Motor Carrier Act of 2012 did provide that
Rules, orders, and regulations previously adopted which relate to functions performed by the Public Service Commission which were transferred under this article to the Department of Public Safety shall remain of full force and effect as rules, orders, and regulations of the Department of Public Safety until amended, repealed, or superseded by rules or regulations adopted by the department.
Ga. Code Ann. § 40-1-57. As of the day of this order, the GDPS has not “amended, repealed, or superseded” Rule 515-16-11-.03(4).
Having recounted a brief history of Georgia’s direct-action statute, the Court turns to the parties’ arguments. Plaintiffs maintain in their Amended Complaint that Defendant Hudson Insurance is subject to a direct action because Rule 515-16-11-.03(4) is still in force based on Georgia Code Annotated § 40-1-57. [Doc. 20, at ¶ 23]. Defendant Hudson Insurance argues that the Georgia Court of Appeals “rejected this very argument” in RLI Insurance Co. v. Duncan, 345 Ga. App. 876, 815 S.E.2d 558 (2018), when it held that an excess liability insurer that also issued a surety bond was not subject to a direct action. [Doc. 16, at pp. 7-9]. Plaintiffs dispute the applicability of RLI Insurance Co. because “the ONLY basis [*16] that plaintiff [in RLI Insurance Co.] specifically pleaded and asserted for direct action against the insurer was pursuant to [Georgia Code Annotated] § 46-7-12, which only mentions joining an insurance carrier and not a surety company issuing a public liability surety bond.” [Doc. 24, at p. 12] (emphasis in original). In short, Plaintiffs believe that the plaintiff in RLI Insurance Co. “overlooked and failed to raise” Rule 515-16-11-.03(4)’s authorization to bring suit against a surety bond issuer. [Id.]. In its final volley, Defendant Hudson Insurance disputes the ongoing validity of Rule 515-16-11-.03(4) because the Motor Carrier Act of 2012 repealed the code sections authorizing the GPSC to promulgate said rule. [Doc. 26, at p. 3].
After considering the parties’ thorough briefing, and with the benefit of a hearing, the Court finds that the direct action against Defendant Hudson Insurance Co. cannot be maintained under Georgia’s direct-action statute or Rule 515-16-11-.03(4) because the plain texts of the current version of Ga. Code Ann. §§ 40-1-112(c) & 40-2-140(d)(4) only allows for direct actions against “insurance carriers”. As the parties’ arguments demonstrate, this question implicates multiple sources of Georgia law that complicate the Court’s analysis.
The Court begins with Defendant Hudson [*17] Insurance Co.’s contention that RLI Insurance Co. is dispositive on this issue.4 In RLI Insurance Co., the plaintiff brought suit against a trucking company and its insurer for injuries sustained in a collision with one of the trucking company’s trucks. 815 S.E.2d at 559. The insurer, which issued a surety bond and an excess liability policy to the trucking company, moved for summary judgment on the grounds that it was the trucking company’s excess liability insurer and therefore not subject to a direct action. Id. The trial court denied the motion, but granted the insurance company’s request for an interlocutory appeal. Id. On appeal, the court held that the insurance company, as an excess liability insurer, was not subject to a direct action. Id. at 560 (citing Werner Enters., Inc. v. Stanton, 302 Ga. App. 25, 690 S.E.2d 623 (Ga. Ct. App. 2010). While the court acknowledged that the excess liability insurer also issued a surety bond to the trucking company, it did not discuss the impact, if any, the surety bond had on its decision nor did it discuss (or even mention) Rule 515-16-11-.03(4).5 In light of the lack of discussion regarding the surety bond and Rule 515-16-11-.03(4) in RLI Insurance Co., the Court is persuaded by Plaintiff’s argument that RLI Insurance Co. is not dispositive.
Nevertheless, the Court finds that RLI Insurance Co. does hint at what the Court now concludes: that Rule 515-16-11-.03(4) no longer allows a direct action against the issuer of a surety bond. The Court acknowledges that when the Georgia General Assembly passed the Motor Carrier Act of 2012, it maintained in force the rules that the GPSC enacted regarding motor carriers. See Ga. Code Ann. § § 40-1-57. However, those rules only remained in effect to the extent they were not later repealed by the GDPS or overridden by an act of the Georgia General Assembly. See id. The parties agree that the GDPS took no action to amend Rule 515-16-11-.03(4). Therefore, Rule 515-16-11-.03(4) is still in effect—unless the Georgia General Assembly repealed it as part of the Motor Carrier Act of 2012.
Whether the Motor Carrier Act of 2012 repealed Rule 515-16-11-.03(4) is a question of statutory interpretation—specifically, the meaning of “insurance carrier” as used in Georgia Code Annotated §§ 40-1-112(c) & 40-2-140, the two direct action statutes. These code sections contain identical provisions that state: “It shall be permissible under this article for any person having a cause of action arising under this article to join in the same action the motor common carrier or motor contract carrier and the insurance carrier [*19] , whether arising in tort or contract.” (emphasis added).
When interpreting a state’s statutes, the Court applies that state’s rules of statutory interpretation. See Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583, 586 (11th Cir. 2015). Under Georgia law,
A statute draws its meaning from its text. When we read the statutory text, we must presume that the General Assembly meant what it said and said what it meant, and so, we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. The common and customary usages of the words are important, but so is their context. For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law—constitutional, statutory, and common law alike—that forms the legal background of the statutory provision in question.
City of Marietta v. Summerour, 302 Ga. 645, 807 S.E.2d 324, 328 (Ga. 2017) (internal quotations and citations omitted). The Court’s interpretation of Georgia’s direct-action statute is further guided by the frequently-recited rule that the direct-action statute is in derogation of the common law and therefore must be strictly construed. See RLI Ins. Co., 815 S.E.2d at 560. Viewing the present dispute through this analytical framework, the question is whether “insurance carrier” includes [*20] a company that issues a surety bond.
The Court begins its analysis with the meaning of the phrase “insurance carrier” in isolation and finds that an insurance carrier is distinct from the issuer of a surety bond because a surety bond is plainly not the same as an insurance contract. In the context of a surety bond, the surety only becomes liable in the event that the primary obligor—in this case Defendant Gray Transportation—is unable to meet its obligations. By contrast, an insurer provides an indemnity to the insured in the event they incur a liability. Although this distinction is not relevant for purposes of this dispute, it is relevant to the extent that it demonstrates that a an “insurance carrier” is distinct from a surety bond issuer.6 Because these two arrangements are distinct, the Court simply cannot say that the issuer of a surety bond is an “insurance carrier” for purposes of Georgia’s direct-action statute.
Moving beyond the isolated phrase “insurance carrier” into the broader language of Georgia Code Annotated §§ 40-1-112 & 40-2-140 confirms the Court’s conclusion. See Mornay v. Nat’l Union Fire Ins. Co. of Pittsburgh, P.A., 331 Ga. App. 112, 769 S.E.2d 807, 810 (Ga. Ct. App. 2015) (“[C]ourts may look to other provisions of the same statute to determine the meaning of a particular statutory provision.”). Sections 40-1-112(a) & (b) and Sections 40-2-140(d)(2) & (3) repeatedly [*21] refer to “a policy of indemnity insurance”—indicating that the statute only applies to indemnity agreements rather than suretyship agreements. The statutory text’s focus on indemnity agreements rather than some other contractual relationship confirms that “insurance carrier” means the provider of an insurance policy rather than the issuer of a surety bond.7
Finally, the Court considers prior versions of Georgia’s direct-action statute. The Georgia Supreme Court has frequently noted the importance of the development of a statute over time in interpreting that statute’s meaning. For example, in Jones v. Peach Trader, Inc., the Georgia Supreme Court held that “changes in statutory language generally indicate an intent to change the meaning of the statute.” 302 Ga. 504, 807 S.E.2d 840, 847 (Ga. 2017) (quoting Edwards v. Prime, Inc., 602 F.3d 1276, 1299 (11th Cir. 2010)); see also Clarke v. Johnson, 199 Ga. 163, 33 S.E.2d 425 (Ga. 1945) (“A constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption.”). Likewise, continuity in a statute’s language can provide significant insight into how that statute is to be understood. [*22] See Elliott v. State, S18A1204, 2019 Ga. LEXIS 112, 2019 WL 654178, at **3-4 (Ga. Feb. 18, 2019).
As recounted above, Georgia’s direct-action statute has an extensive history of both continuity and change. Significant for present purposes, however, is the change in the wording of the statute in 2002 to exclude any reference to the issuer of a surety bond and the continuation of that exclusion in the 2012 version of the statute. The Court finds that this is strong evidence that the current version of the direct-action does not permit a direct action against the issuer of a surety bond. Drawing on the guidance in Jones, the Court must interpret these changes as deliberate decisions by the Georgia General Assembly to exclude surety bonds from the reach of Georgia’s direct-action statute.
Because the Court finds that the Motor Carrier Act of 2012 does not authorize direct actions against the issuers of surety bonds, it must conclude that the General Assembly necessarily and effectively repealed Rule 515-16-11-.03(4) to the extent it authorized a direct-action against any entity other than an “insurance carrier.” It would, after all, make little sense for the legislature to restrict the direct-action statute to “insurance carriers” in the plain text of the statute [*23] itself, yet allow an agency rule to directly contravene the plain language of the authorizing statute. Thus, it is of no consequence that the GDPS has not acted to amend or repeal the rule in question because the General Assembly itself repealed it when it limited the application of the direct-action statute to “insurance carriers” in the 2002 version of the statute and reiterated the restriction in the 2012 version.
The Court therefore grants Defendant Hudson Insurance Co.’s Motion to Dismiss as it relates to Plaintiffs’ direct-action claims based on Rule 515-16-11-.03(4).

2. Tort/Discovery
In addition to their claims under Georgia’s direct-action statute, Plaintiffs assert claims against Defendant Hudson Insurance Co. in tort. They allege that Defendant Hudson Insurance Co. “assumed the legal duty to monitor, screen and to disqualify or refuse to approve drivers of Gray Transportation.” [Doc. 1, at § 33]. However, Plaintiffs essentially concede that they currently have no evidence that Defendant Hudson Insurance Co. voluntarily assumed the duty to vet Defendant Gray Transportation’s drivers, but argues that they would like the benefit of discovery to investigate the existence of a contract or practice [*24] where Defendant Hudson Insurance assumed the alleged duty. See [Doc. 24, at p. 14]. Of course, at the motion-to-dismiss stage of the proceedings, Plaintiffs do not need evidence to support each of their allegations—but their complaint must include sufficient “factual enhancement” to state a plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
What might sufficient “factual enhancement” have looked like in this case? For starters, Plaintiffs could have alleged how Defendant Hudson Insurance Co. assumed the duty to vet Defendant Gray Transportation’s drivers. Did it do so through a contract? Or simply as a matter of practice? Plaintiffs could have also alleged what this vetting process entailed, how long Defendant Hudson Insurance had been vetting Defendant Gray Transportation’s drivers, or whether they actually vetted Defendant Elias. The Court acknowledges that without discovery Plaintiffs may not have access to this information but Plaintiffs’ allegations (at this point) amount to little more than speculation about a possible relationship between Defendants Gray Transportation and Hudson Insurance Co. In sum, Plaintiffs’ allegation of a voluntarily assumed duty “gets the complaint close to stating a claim, [*25] but without some further factual enhancement it stops short of the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557 (internal citations omitted). The Court notes that as discovery proceeds, information may well come to light that allows Plaintiffs to allege a voluntarily assumed duty with more particularity and the Court would certainly entertain a motion to amend their complaint at that point in time.
Plaintiffs’ Restatement (Second) of Torts, § 324A(c) claim is also deficient because they failed to plead that Defendant Gray Transportation relied on Defendant Hudson Insurance Co.’s alleged vetting process. In Hutcherson v. Progressive Corp., the Eleventh Circuit acknowledged that Georgia law requires a plaintiff asserting a claim under Restatement (Second) of Torts § 324A(c) to prove that her injuries were caused by a party’s reliance on another party’s voluntarily assumed duty. 984 F.2d 1152, 1157 (11th Cir. 1993). Hutcherson made clear that this standard is low and plaintiff may rely on circumstantial evidence to survive a motion for summary judgment. Id. In this case, however, Plaintiffs makes no allegation whatsoever that Defendant Gray Transportation relied in any way on Defendant Hudson Insurance Co.’s alleged vetting process. Accordingly, Plaintiffs’ failure to allege [*26] reliance by Defendant Gray Transportation is an alternative basis for dismissal for this tort claim against Defendant Hudson Insurance Co.

CONCLUSION
For the above reasons, the Court DENIES the Motion to Stay Pending Resolution of the Criminal Proceedings [Doc. 12] and GRANTS the Motion to Dismiss [Doc. 16].
SO ORDERED this 22nd day of February, 2019.
/s/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

2019 WL 409698

United States Court of Appeals, Fifth Circuit.
Alexandro PUGA; Norma Puga, Plaintiffs – Appellees
v.
RCX SOLUTIONS, INCORPORATED, Defendant – Appellant
No. 17-41282
|
FILED February 1, 2019
Synopsis
Background: Truck driver who was seriously injured in collision with oncoming truck and his wife brought negligence action against licensed motor carrier that contracted with driver of the oncoming truck. The United States District Court for the Southern District of Texas entered judgment in favor of plaintiffs, and defendant appealed.

Holdings: The Court of Appeals, Carl E. Stewart, Chief Judge, held that:

[1] defendant waived issue of whether the statutory-employee doctrine had been overruled;

[2] jury was not required to find that defendant met the statutory definition of “motor carrier” to support imposition of liability;

[3] state trooper’s expert testimony regarding cause of collision was relevant;

[4] award of $1.8 million for loss of future consortium to wife was not clearly excessive under Texas law;

[5] maximum award of past loss of consortium damages was $409,125; and

[6] trial court was required to apply settlement credit to final damage award.

Affirmed in part, reversed in part, and remanded.

West Headnotes (33)

[1]
Federal Civil Procedure
Necessity for preverdict motion for judgment as matter of law;  different grounds or issues

A post-verdict motion for a judgment as a matter of law is technically only a renewal of a pre-verdict motion for judgment as a matter of law; as a result, courts prohibit parties from using a post-verdict motion to assert a ground that was not included in the original motion. Fed. R. Civ. P. 50(a)(2), 50(b).
Cases that cite this headnote

[2]
Federal Civil Procedure
Notwithstanding Verdict;  Judgment as Matter of Law

Rule governing post-verdict motions for judgment as a matter of law is designed to prevent a litigant from ambushing both the district court and opposing counsel after trial. Fed. R. Civ. P. 50(b).
Cases that cite this headnote

[3]
Federal Civil Procedure
Necessity for preverdict motion for judgment as matter of law;  different grounds or issues

Licensed motor carrier that claimed it could not be liable for injuries caused by driver working for it as an independent contractor waived issue of whether the statutory-employee doctrine had been overruled by raising it for the first time in its post-verdict motion for a judgment as a matter of law in negligence action arising from driver’s collision with an oncoming vehicle. Fed. R. Civ. P. 50(b).
Cases that cite this headnote

[4]
Automobiles
Employment-related issues
Automobiles
Hirer or borrower

Jury was not required to find that truck driver’s employer met the statutory definition of “motor carrier” to support imposition of liability in negligence action arising from the driver’s collision with an oncoming vehicle while the driver was using a leased trailer; statutory definition was overbroad because it did not distinguish between a motor carrier using its own equipment and a motor carrier using leased equipment, and relevant federal regulations applied only to motor carriers who use leased equipment. 49 U.S.C.A. §§ 13102(14), 14102(a).
Cases that cite this headnote

[5]
Federal Courts
Instructions
Federal Courts
Instructions

The Court of Appeals reviews jury instructions under a two-prong standard of review: first, the challenger must demonstrate that the charge as a whole creates substantial and ineradicable doubt whether the instructions properly guided the jury in its deliberations; second, even if the court finds that the jury instructions were erroneous, it will not reverse if it determines, based upon the entire record, that the challenged instruction could not have affected the outcome of the case.
Cases that cite this headnote

[6]
Federal Courts
Expert evidence and witnesses

A trial court’s decision to admit expert evidence is reviewed for abuse of discretion.
Cases that cite this headnote

[7]
Evidence
Determination of question of competency
Federal Courts
Expert evidence and witnesses

The trial judge has wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge and his or her decision will not be disturbed on appeal unless manifestly erroneous.
Cases that cite this headnote

[8]
Federal Courts
Abuse of discretion in general

A “manifest error” is one that is plain and indisputable, and that amounts to a complete disregard of the controlling law.
Cases that cite this headnote

[9]
Evidence
Matters involving scientific or other special knowledge in general
Evidence
Necessity and sufficiency

When evaluating expert testimony, the overarching concern is generally whether the testimony is relevant and reliable. Fed. R. Evid. 702.
Cases that cite this headnote

[10]
Evidence
Necessity and sufficiency
Evidence
Speculation, guess, or conjecture

To be reliable, expert testimony must be grounded in the methods and procedures of science and be more than unsupported speculation or subjective belief. Fed. R. Evid. 702.
Cases that cite this headnote

[11]
Evidence
Matters involving scientific or other special knowledge in general

For expert testimony to be relevant, the expert’s reasoning or methodology must be properly applied to the facts in issue. Fed. R. Evid. 702.
Cases that cite this headnote

[12]
Evidence
Matters involving scientific or other special knowledge in general

When performing analysis of whether expert testimony is reliable and relevant, the court’s main focus should be on determining whether the expert’s opinion will assist the trier of fact; assisting the trier of fact means the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument. Fed. R. Evid. 702.
Cases that cite this headnote

[13]
Evidence
Matters involving scientific or other special knowledge in general

The helpfulness threshold for admission of expert testimony is low: it is principally a matter of relevance. Fed. R. Evid. 702.
Cases that cite this headnote

[14]
Evidence
Necessity and sufficiency

As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility. Fed. R. Evid. 702.
Cases that cite this headnote

[15]
Evidence
Matters involving scientific or other special knowledge in general
Evidence
Necessity and sufficiency

Particularly in a jury trial setting, the court’s role under rule governing admissibility of expert testimony is not to weigh the expert testimony to the point of supplanting the jury’s fact-finding role—the court’s role is limited to ensuring that the evidence in dispute is at least sufficiently reliable and relevant to the issue so that it is appropriate for the jury’s consideration; at no point should the trial court replace the adversary system. Fed. R. Evid. 702.
Cases that cite this headnote

[16]
Evidence
Necessity and sufficiency

Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
Cases that cite this headnote

[17]
Evidence
Matters involving scientific or other special knowledge in general
Evidence
Necessity and sufficiency

While the district court must act as a gatekeeper to exclude all irrelevant and unreliable expert testimony, the rejection of expert testimony is the exception rather than the rule. Fed. R. Evid. 702.
Cases that cite this headnote

[18]
Evidence
Cause and Effect

State trooper’s expert testimony regarding cause of truck driver’s collision with oncoming vehicle was relevant in negligence action against motor carrier that contracted with the driver; trooper was driving some distance behind the truck driver at the time of the accident, knew that the driver was using his cell phone and that conditions were dark and wet, and based his determination that the driver had hydroplaned and been driving too fast for the conditions or used faulty evasive maneuvers based on skid marks and marks in the median showing the path of his truck. Fed. R. Evid. 702.
Cases that cite this headnote

[19]
Federal Courts
New Trial, Rehearing, or Reconsideration
Federal Courts
Inadequate or excessive damages

The Court of Appeals reviews the district court’s decision to deny a motion for a new trial or remittitur for abuse of discretion.
Cases that cite this headnote

[20]
Marriage and Cohabitation
Loss of Spouse’s Services, Society, or Consortium

Under Texas law, “loss of consortium” is the loss of companionship, emotional support, love, felicity, and sexual relations necessary to a successful marriage.
Cases that cite this headnote

[21]
Damages
Loss of earnings, services, or consortium

Damages for loss of consortium under Texas law are non-pecuniary damages, which do not require certainty of actual monetized loss; they are, instead, measured by an amount that a reasonable person could possibly estimate as fair compensation.
Cases that cite this headnote

[22]
Damages
Loss of earnings, services, or consortium and impairment of earning capacity

Under Texas law, trust in ability of the jury to calculate an appropriate award of loss of consortium damages is limited—juries cannot simply pull a number out of a hat; all damages must be tied to some evidence.
Cases that cite this headnote

[23]
Damages
Loss of earnings, services, or consortium

Direct evidence is not required to support and award of loss of consortium damages under Texas law; a jury can infer loss of consortium damages from indirect evidence showing the nature and extent of a spouse’s injuries.
Cases that cite this headnote

[24]
Damages
Loss of earnings, services, or consortium

When considering indirect evidence, juries awarding loss of consortium damages under Texas law can rely on (1) the nature of the marital relationship prior to the spouse’s injury, (2) the deterioration of the marital relationship following the injury, and (3) the extent and duration of the spouse’s injuries.
Cases that cite this headnote

[25]
Damages
Excessive damages in general

Past jury verdicts can provide an objective frame of reference, but they do not control the assessment of individual circumstances when determining if the verdict is excessive.
Cases that cite this headnote

[26]
Damages
Excessive damages in general

When determining the excessiveness of a jury verdict, courts must review each case on its own facts.
Cases that cite this headnote

[27]
Federal Courts
Inadequate or excessive damages

If a jury’s award of damages exceeds the bounds of any reasonable recovery, the Court of Appeals must suggest a remittitur itself or direct the district court to do so.
Cases that cite this headnote

[28]
Federal Courts
Damages or Other Monetary Relief

Under the maximum recovery rule used to determine if a jury’s award of damages is excessive, the Court of Appeals will decline to reduce damages where the amount awarded is not disproportionate to at least one factually similar case from the relevant jurisdiction.
Cases that cite this headnote

[29]
Federal Courts
Damages or Other Monetary Relief

Under the maximum recovery rule used to determine whether a jury’s award of damages is excessive, the Court of Appeals measures disproportionality of the award to awards in factually similar cases by applying a percentage enhancement to past similar awards; this enhancement is 50% for jury trials.
Cases that cite this headnote

[30]
Federal Courts
Damages or Other Monetary Relief

The relevant jurisdiction for purposes of the maximum recovery rule used to determine if a jury’s award of damages is excessive is the state providing the substantive law for the claim.
Cases that cite this headnote

[31]
Damages
Husband and wife

Award of $1.8 million for loss of future consortium to wife of truck driver who suffered significant injuries in collision was not clearly excessive under Texas law; award represented 150% of highest prior amount awarded to a wife for loss of future consortium in a case where the husband did not die, when the prior award was adjusted for inflation.
Cases that cite this headnote

[32]
Damages
Husband and wife

Under Texas law, maximum award of past loss of consortium damages to the wife of truck driver who survived an accident but suffered physically and emotionally from his injuries was $409,125, representing 150% of award in prior similar Texas case, when that award was adjusted for inflation.
Cases that cite this headnote

[33]
Damages
Reparation by wrongdoer

Under Texas law, trial court was required to apply settlement credit to final damage award in negligence action against a motor carrier whose truck driver was involved in a collision with an oncoming vehicle.
Cases that cite this headnote

Appeal from the United States District Court for the Southern District of Texas
Attorneys and Law Firms
Richard Phillips Hogan, Jr., Jennifer Bruch Hogan, Hogan & Hogan, Houston, TX, Thomas J. Henry, Law Offices of Thomas J. Henry Injury Attorneys, Corpus Christi, TX, for Plaintiffs – Appellees.
Wanda McKee Fowler, Andrea Geohegan, Raffi Melkonian, Thomas Clark Wright, Wright, Close & Barger, L.L.P., Houston, TX, for Defendant – Appellant.
Jeffrey R. White, Esq., American Association for Justice, Washington, DC, for Amicus Curiae American Association for Justice.
Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
Opinion

CARL E. STEWART, Chief Judge:

*1 RCX Solutions, Incorporated is a licensed motor carrier that contracted with a driver, Ronald Brown, to transport a load across Texas. During his drive, Brown crossed the median into oncoming traffic and crashed into Alexandro Puga’s truck, leaving Puga with significant injuries. The Pugas sued. After a week-long trial with expert testimony, a jury found RCX liable for Brown’s negligence and awarded Mr. Puga a variety of damages and his wife, Norma Puga, loss of consortium damages.

RCX now launches a multitude of challenges at the district court’s handling of the case. RCX claims that the district court wrongly interpreted the Federal Motor Carrier Safety Regulations because it failed to take account of regulatory amendments. RCX contends that this misinterpretation subjected RCX to liability where none should exist. RCX also argues that the district court used faulty jury instructions, improperly allowed the Pugas’ expert to testify, and upheld an excessive jury award for Mrs. Puga’s loss of consortium. Finally, RCX claims that the district court erred in not applying a settlement credit to the final damages award. After reviewing the record, we AFFIRM the district court’s rulings with respect to all issues except the settlement credit. We REVERSE and REMAND to the district court for the sole purpose of calculating the appropriate settlement credit amount and modifying its final judgment accordingly.

I.
Sunset Transportation entered into a brokerage account with L’Oreal. In its role as a broker, Sunset was responsible for choosing a motor carrier for individual L’Oreal shipments on a load-by-load basis. Sunset chose RCX to transport the L’Oreal load involved in the accident. RCX did not have a contract with L’Oreal.

When it came time for RCX to transport L’Oreal’s load, RCX ran into equipment problems. So RCX contacted Ronald Brown to transport the load. Conveniently, Brown already had an RCX trailer in his possession. RCX had leased the trailer from another company, Xtra Lease, and RCX assumed responsibility for the trailer’s operation under the lease agreement. The bill of lading listed RCX as the carrier for the load. Brown also signed the bill of lading, apparently on behalf of RCX.1

While transporting the load, Brown swerved across the median into oncoming traffic, hitting Alexandro Puga’s truck. Brown did not survive the accident. Mr. Puga suffered a variety of injuries, including burns on large parts of his body and fractures in his spine, legs, pelvis, and fingers. Mr. Puga was still undergoing treatment and surgeries two-and-a-half years after the accident.

Following the accident, Mr. Puga and his wife, Norma, sued RCX, About Tyme, and Xtra Lease, claiming that Brown’s negligent driving caused Mr. Puga’s injuries. Prior to trial, RCX filed a motion under Rule 50(a) of the Federal Rules of Civil Procedure, requesting the court to enter judgment as a matter of law because the Pugas lacked sufficient evidence for a jury to find that (1) Brown was employed by RCX and (2) Brown acted negligently when the crash occurred. The district court denied the motion.

*2 At trial, the Pugas designated Trooper Andrew Smith as an expert witness. Smith was the first responder to the accident and saw the explosion from the accident from afar. RCX sought to exclude Smith’s testimony regarding the cause of the accident. The district court denied RCX’s motion.

The trial concluded with a jury verdict in favor of the Pugas. The jury determined that RCX was “using motor vehicle(s) it did not own to transport property under an arrangement with Ronald Brown.” As a result, the jury awarded the Pugas a variety of damages. The jury specifically awarded Mrs. Puga damages for loss of consortium, $1.6 million for past loss of consortium and $1.8 million for future loss of consortium.

After the trial, RCX filed a renewed Rule 50(b) motion, again requesting judgment as a matter of law, this time because amendments to Federal Motor Carrier Regulations precluded the jury from finding for the Pugas. The district court again denied the motion and entered judgment in favor of the Pugas. RCX now appeals.

II.
RCX first argues that federal law does not allow courts to hold motor carriers liable for the acts of independent contractors, a concept both parties refer to as the statutory-employee doctrine. RCX raised this argument for the first time in its post-verdict Rule 50(b) motion.

[1]Rule 50(a) of the Federal Rules of Civil Procedure allows a party to move for judgment as a matter of law at trial before the jury renders its verdict. Under Rule 50(a), the movant must “specify the judgment sought and the law and facts that entitle the movant to the judgment.” Fed. R. Civ. P. 50(a)(2). If the pre-verdict motion is denied, then the party can renew its motion under Rule 50(b). But the renewed Rule 50(b) is “technically only a renewal of the [Rule 50(a) motion for judgment as a matter of law].” Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985) (internal quotation marks and citation omitted). As a result, courts prohibit parties from using a Rule 50(b) motion to “assert a ground that was not included in the [original] motion.” Id.; see also In re Isbell Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014) (“By not raising this argument at trial or in its Rule 50(a) motion, [the appellant] has waived its right to bring a Rule 50(b) motion on this ground.”); Arsement v. Spinnaker Expl. Co., 400 F.3d 238, 247 (5th Cir. 2005) (“If a party fails to raise an issue in its Rule 50(a)(1) motions at trial, it may not do so in its post-trial Rule 50(b) motion.”) (citation omitted); 9B Charles Alan Wright & Arthur K. Miller, Federal Practice and Procedure § 2537 (3d ed. 2018) (“[T]he district court only can grant the Rule 50(b) motion on the grounds advanced in the preverdict motion, because the former is conceived of as only a renewal of the latter.”).

[2]This rule makes sense in light of Rule 50(b)’s purposes. Rule 50(b) is designed to prevent a litigant from ambushing both the district court and opposing counsel after trial. See Dimmitt Agri Indus., Inc. v. CPC Int’l Inc., 679 F.2d 516, 521 (5th Cir. 1982) (“The rationale for the rule that a [Rule 50(b) motion] cannot assert a ground not included in a motion for directed verdict is obviously to avoid ‘ambushing’ the trial court and opposing counsel.”) (internal quotation marks and citation omitted); Quinn v. Sw. Wood Prods., Inc., 597 F.2d 1018, 1025 (5th Cir. 1979) (“When a claimed deficiency in the evidence is called to the attention of the trial judge and of counsel before the jury has commenced deliberations, counsel still may do whatever can be done to mend his case. But if the court and counsel learn of such a claim for the first time after verdict, both are ambushed and nothing can be done except by way of a complete new trial. It is contrary to the spirit of our procedures to permit counsel to be sandbagged by such tactics or the trial court to be so put in error.”). By requiring a litigant to raise all arguments in its initial Rule 50(a) motion, the trial court is able to “re-examine the question of evidentiary insufficiency as a matter of law if the jury returns a verdict contrary to the movant,” and opposing counsel is alerted to any “insufficiency before the case is submitted to the jury,” giving the opposing party a chance to cure any defects in its legal theories or proof should the motion have merit. Scottish Heritable Tr., PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996) (internal quotation marks and citation omitted).

*3 [3]Here, RCX did not argue that the statutory-employee doctrine was overruled in its Rule 50(a) motion, precluding it from raising the argument in its Rule 50(b) motion. In its oral Rule 50(a) motion, RCX argued that judgment as a matter of law was appropriate because the record contained insufficient evidence to determine that (1) Brown was a statutory employee of RCX and (2) Brown acted negligently when the accident occurred. Even in its earlier summary judgment briefing, RCX only attacked the evidentiary bases for determining that Brown was an employee of RCX. At no time prior to its Rule 50(b) motion did RCX argue that the entire statutory-employee doctrine is now defunct. By failing to raise this argument in its initial Rule 50(a) motion, RCX waived it.2 See McCann v. Tex. City Ref., Inc., 984 F.2d 667, 672-73 (5th Cir. 1993) (denying a post-judgment challenge when the party’s argument differed from its 50(a) motion); Allied Bank-West., N.A. v. Stein, 996 F.2d 111, 115 (5th Cir. 1993) (overturning grant of judgment as a matter of law on different ground than that in the initial directed verdict); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 846 (5th Cir. 1975) (holding that plaintiff could not receive post-judgment relief on claims it did not raise at trial or in its original Rule 50 motion).

Accordingly, we AFFIRM the district court’s decision to deny RCX’s Rule 50(b) motion.

III.
[4]RCX next argues that the district court used improper jury instructions. More specifically, RCX argues that the district court’s jury instructions were incorrect because they did not require the jury to find that RCX met the definition of “motor carrier.”

[5]This court reviews jury instructions under a two-prong standard of review. “First, the challenger must demonstrate that the charge as a whole creates substantial and ineradicable doubt whether” the instructions “properly guided” the jury “in its deliberations.” Pelt v. U.S. Bank Tr. Nat. Ass’n, 359 F.3d 764, 767 (5th Cir. 2004) (quoting Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th Cir. 1997) ). Second, even if the court finds that the jury instructions were erroneous, it will not reverse if it determines, “based upon the entire record, that the challenged instruction could not have affected the outcome of the case.” Id. (quoting Sawyer, 120 F.3d at 1315).

RCX’s arguments do not raise any doubt about the district court’s jury instructions.3 The district court instructed the jury to determine whether RCX was “using motor vehicle(s) it did not own to transport property under an arrangement with Ronald Brown.” RCX correctly points out that this instruction does not follow the federal definition of motor carrier. The federal definition of a motor carrier is “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). But this definition of motor carrier is overbroad for this case because it does not distinguish between (1) a motor carrier using its own equipment and (2) a motor carrier using leased equipment. That distinction matters.

*4 The relevant federal regulations only apply to motor carriers who use leased equipment. As Section 14102 makes clear, the Secretary of Transportation can only issue regulations requiring a motor carrier to “have control of and be responsible for” how employees operate equipment if the motor carrier “uses motor vehicles not owned by it to transport property under an arrangement with another party.” 49 U.S.C. § 14102(a) (emphasis added). The district court rightly based its jury instructions on this section because it excludes carriers using their own trucking equipment. Without a finding that the motor carrier used a leased vehicle, the regulations would not apply.

RCX’s arguments to the contrary are unconvincing. RCX first argues that the instructions did not require the jury to find that RCX was acting as a motor carrier. Second, and relatedly, RCX argues that the instructions are so broad that they wrap in brokers, as well as motor carriers. We disagree. The main difference between a motor carrier and a broker is the actual operation of the leased equipment. This difference stands out when looking at the definitions of motor carrier and broker in the Act. While a broker is responsible for “providing, or arranging for, transportation by motor carrier,” 49 U.S.C. § 13102(2), a motor carrier provides “motor vehicle transportation,” 49 U.S.C. § 13102(14). Put briefly, a motor carrier transports, and a broker provides a motor carrier. Because the jury here determined that RCX used motor vehicles to transport property, it necessarily determined that RCX was a motor carrier. Consequently, the jury also necessarily determined that RCX did not act as a broker who merely provided access to a motor carrier.

In sum, the district court did not err. On the contrary, the district court closely examined the statute, avoided the obvious, overbroad definition of motor carrier, and picked out the correct, limited definition. We AFFIRM the district court’s jury instructions.

IV.
RCX next challenges the district court’s decision to admit State Trooper Smith as an expert witness on accident investigation. According to RCX, Smith’s opinion was irrelevant because he testified that he (1) could not find any defects on the road, (2) could not find any skid marks on the road, (3) did not determine how fast Brown was driving, and (4) did not know the weight of the trailer or its contents.4

[6] [7] [8]A trial court’s decision to admit expert evidence is reviewed for abuse of discretion. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007) (citation omitted). The trial judge has “wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge and his or her decision will not be disturbed on appeal unless manifestly erroneous.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (internal quotation marks and citation omitted); see also Whitehouse Hotel Ltd. P’ship v. Comm’r, 615 F.3d 321, 330 (5th Cir. 2010). A manifest error is one that “is plain and indisputable, and that amounts to a complete disregard of the controlling law.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (internal quotation marks and citation omitted); see also SEC v. Life Partners Holdings, Inc., 854 F.3d 765, 775 (5th Cir. 2017).

[9] [10] [11]Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony and reports. When evaluating expert testimony, the overarching concern is generally whether the testimony is relevant and reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). To be reliable, expert testimony must “be grounded in the methods and procedures of science and … be more than unsupported speculation or subjective belief.”5 Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (internal citation omitted). To be relevant, the expert’s “reasoning or methodology [must] be properly applied to the facts in issue.” Id. (internal citation omitted).

*5 [12] [13]When performing this analysis, the court’s main focus should be on determining whether the expert’s opinion will assist the trier of fact. See Peters v. Five Star Marine Serv., 898 F.2d 448, 449 (5th Cir. 1990) (citing Fed. R. Evid. 702 advisory committee’s notes (1972) ). Assisting the trier of fact means “the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument.” Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992) (internal quotation marks and citation omitted). As this court has noted, however, the “helpfulness threshold is low: it is principally … a matter of relevance.” E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 459 n.14 (5th Cir. 2013) (en banc) (internal quotation marks and citations omitted).

[14] [15] [16] [17]As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility. See Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Particularly in a jury trial setting, the court’s role under Rule 702 is not to weigh the expert testimony to the point of supplanting the jury’s fact-finding role—the court’s role is limited to ensuring that the evidence in dispute is at least sufficiently reliable and relevant to the issue so that it is appropriate for the jury’s consideration. See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1391-92 (Fed. Cir. 2003). At no point should the trial court replace “the adversary system.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Cir. 2002). As the Supreme Court explained, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786; see also Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002). While the district court must act as a gatekeeper to exclude all irrelevant and unreliable expert testimony, “the rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory committee’s notes (2000) (internal citations omitted).

[18]Here, RCX only challenges the relevance of Smith’s opinion.6 But its arguments are not persuasive. The district court did not abuse its discretion in allowing Smith to offer an expert opinion on the cause of the accident—Smith considered an appropriate amount of physical evidence at the scene of the crime to offer his opinion, and RCX had ample opportunity to show the jury any flaws in his opinion.

No Fifth Circuit case applies Rule 702 and Daubert to an accident investigator.7 But the majority of in-circuit district courts choose to admit accident investigators as experts.8 District courts use a contextual analysis when making this determination, looking to see if the investigating officer bases his opinion on a sufficient amount of physical evidence from the accident.

*6 For example, in Stevens, the district court allowed an officer to testify based on “the position of Defendants’ trailer after the accident, the tire marks visible at the scene, and his conversation at the scene with … the driver of Plaintiffs’ tractor-trailer.” Stevens, 2016 WL 9244669, at *4. Another court allowed an expert to testify based on his “his accident report, some photographs and his notes.” Vigil, 2007 WL 2778233, at *4. Yet another court allowed an investigating officer to testify as an expert because, even though he “did not take any measurements or photographs, or speak to any witnesses to the accident, he did personally survey the accident scene, talk to the other officers on the scene, and subsequently reviewed photographs of the scene.” Main, 2011 WL 11027844, at *4. The only case to exclude an expert involved markedly different facts. In that case, the officer could not determine which lane the driver was in, expressed doubts about his qualifications, and could not say with any certainty whether the defendant caused the accident. Koenig, 2018 WL 358307, at *5.

Here, Smith considered numerous facts and did not state that he was speculating about the cause of the accident. Smith was driving some distance behind Brown when the accident occurred and saw it happen from afar. He found wet, dark conditions. He determined which lane Brown was using. He determined that Brown was talking on his cell phone. He examined marks in the median showing the path of Brown’s truck. He took photographs of the scene. He spoke to witnesses. He determined that Brown hydroplaned based on skid marks. He determined based on experience and training that Brown must have been driving too fast or used faulty evasive maneuvers to cross the median and end up on the other side of the road. He also relied on an accident reconstruction put together by another expert. Smith also admitted on cross-examination that he did not examine Brown’s truck, the brakes, the weight of the truck, or attempt to estimate his speed. But he stuck to his opinion that Brown must have been driving too fast for the conditions or taken a faulty evasive maneuver.

In sum, Smith’s opinion was based on a multitude of facts. It did not take into account every possible explanation for the accident, and some measurements were missing. But he was the closest to the scene when the accident happened, observed the conditions on the road, knew Brown was talking on the phone, and looked at various tire markings in the median and on the pavement. Numerous district courts have allowed an investigating officer to testify as an expert based on less. If Smith missed any important facts, the oversight should go to the weight of his opinion, not its admissibility. We AFFIRM the district court’s decision to allow Smith to testify as an expert witness on causation.

V.
Next, RCX argues that the district court erroneously affirmed the jury’s award of consortium damages to Mrs. Puga.

[19]This court reviews the district court’s decision to deny a motion for a new trial or remittitur for abuse of discretion.9 Salinas v. O’Neill, 286 F.3d 827, 830 (5th Cir. 2002) (“We review denial of remittitur for abuse of discretion”); Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) (“The decision to grant or deny a motion for new trial or remittitur rests in the sound discretion of the trial judge; that exercise of discretion can be set aside only upon a clear showing of abuse”); Brooks v. Great Lakes Dredge-Dock Co., 754 F.2d 539, 541 (5th Cir. 1985) (“The standard of review of the denial of such a motion is whether the district court abused its discretion.”).

*7 [20] [21]The Supreme Court of Texas defines loss of consortium as the loss of companionship, emotional support, love, felicity, and sexual relations necessary to a successful marriage. Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1089 (5th Cir. 1991) (citing Whittlesey v. Miller, 572 S.W.2d 665, 666 (Tex. 1978) ). Damages for loss of consortium are non-pecuniary damages, which “do not require certainty of actual monetized loss.” Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014). They are, instead, “measured by an amount that a reasonable person could possibly estimate as fair compensation.” Id. (internal quotation marks and citation omitted).

[22] [23] [24]While “translating the subjective nature of this loss into monetary terms” is difficult, Texas courts trust “the ability of the jury to calculate an appropriate award based on the evidence.” Id. at 1089 (citing P.T. & E. Co. v. Beasley, 698 S.W.2d 190, 196 (Tex. App.—Beaumont 1985) ); Whittlesey, 572 S.W.2d at 667 (“[T]he issue generally must be resolved by the impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence.” (internal quotation marks and citation omitted) ). Even so, this trust is limited—juries cannot simply pull a number out of a hat. All damages must be tied to some evidence. Enright v. Goodman Distrib., Inc., 330 S.W.3d 392, 403 (Tex. App.—Houston [14th Dist.] 2010) (citing First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. App.—Austin 1993, writ denied) ). Direct evidence, however, is not required. A jury can infer loss of consortium damages “from [indirect] evidence showing the nature and extent of a spouse’s injuries.” Glasscock, 946 F.2d at 1090.10 When considering indirect evidence, juries can rely on “(1) the nature of the marital relationship prior to the spouse’s injury, (2) the deterioration of the marital relationship following the injury, and (3) the extent and duration of the spouse’s injuries.” Id. (citing Whittlesey, 572 S.W.2d at 667; Monsanto Co. v. Johnson, 675 S.W.2d 305, 312 (Tex. App.—Houston [1st Dist.] 1984) ).

[25] [26] [27]When determining the excessiveness of a jury verdict, courts “must review each case on its own facts.” Moore v. M/V ANGELA, 353 F.3d 376, 384 (5th Cir. 2003) (citing Winbourne v. E. Airlines, Inc., 758 F.2d 1016, 1018 (5th Cir. 1984) ). Past verdicts can “provide an objective frame of reference, but they do not control our assessment of individual circumstances.” Wheat v. United States, 860 F.2d 1256, 1259-60 (5th Cir. 1988). If an award “exceeds the bounds of any reasonable recovery, we must suggest a remittitur ourselves or direct the district court to do so.” Caldarera, 705 F.2d at 784 (internal citation omitted).

[28] [29] [30]This court uses the “maximum recovery rule” to determine whether an award is excessive. Under the maximum recovery rule, this court “will decline to reduce damages where the amount awarded is not disproportionate to at least one factually similar case from the relevant jurisdiction.” Lebron, 279 F.3d at 326 (internal citations and quotations omitted). We measure disproportionality by applying a percentage enhancement to past similar awards. This enhancement is 50% for jury trials. See Salinas, 286 F.3d at 831 & n.6 (noting 50% enhancement has been applied only in jury trials); see also Moore, 353 F.3d at 384. Refusing to overturn jury awards that are within 150% of the highest comparable award prevents the court from substituting its own opinion for that of a jury. The relevant jurisdiction for purposes of the maximum recovery rule “is the state providing the substantive law for the claim.” Vogler v. Blackmore, 352 F.3d 150, 156 (5th Cir. 2003). Here, the relevant jurisdiction consists of Texas loss of consortium cases and “Fifth Circuit cases applying Texas [loss of consortium] law.” Id.

*8 [31]The jury awarded Mrs. Puga $1.8 million for her future loss of consortium and $1.6 million for her past loss of consortium. Applying the maximum recovery rule, neither award is clearly excessive.

The award for future loss of consortium falls within this court’s 50% multiplier. The highest decision we found awarded a wife $1 million for loss of future consortium in a case where the husband did not die.11 Reeder v. Allport, 218 S.W.3d 817, 820 (Tex. App.—Beaumont 2007) (affirming a jury’s award of “$1,000,000 for future loss of consortium.”); accord Lebron v. United States, 279 F.3d 321, 327 (5th Cir. 2002) (basing a maximum recovery rule finding in a loss-of-consortium case on the “the highest award” the court could find). That verdict was rendered in 2007 dollars. Accounting for inflation, that award is over $1.2 million in 2018 dollars.12 Cf. Ledet v. Smith Marine Towing Corp., 455 F. App’x 417, 423 (5th Cir. 2011) (unpublished) (accounting for inflation when applying the maximum recovery rule to a prior jury verdict). The jury’s $1.8 million verdict falls within 150% of the prior award over $1.2 million.

[32]The parties did not point us to a factually similar case that specifically granted past loss of consortium damages.13 See Vogler, 352 F.3d at 156-57, 157 n.7 (finding that prior cases were not factually similar when they did not distinguish between past and future loss of consortium). In our own research, however, we found a case in which the plaintiff-husband, like here, survived an accident but suffered physically and emotionally from his injuries. See W. Star Transp., Inc. v. Robison, 457 S.W.3d 178, 189 (Tex. App.—Amarillo 2015) (upholding a past loss of consortium award of $250,000 where the husband suffered a traumatic brain injury that would “significantly affect him for the remainder of his life”). In Robison, the jury awarded the plaintiff’s wife $250,000 for past loss of consortium on January 18, 2013. Adjusting for inflation, that award translates to roughly $272,750.00. And adding our 150% multiplier to that number, the maximum recovery rule limits Mrs. Puga’s recovery to $409,125.00.

*9 Accordingly, we AFFIRM the district court’s decision to affirm the jury’s award of future consortium damages. However, we REVERSE the district court’s decision to affirm the jury’s award of past consortium damages and REMAND for the exact calculation of Mrs. Puga’s maximum recovery in light of West Star Transportation, Inc. v. Robison, 457 S.W.3d 178.

VI.
[33]Finally, RCX argues that it is entitled to a settlement credit under Texas law—an issue the district court did not consider. The Pugas agree that RCX is entitled to a settlement credit. See RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 862 (5th Cir. 2010) (applying a settlement credit in a Texas law diversity case).

We, therefore, REVERSE the district court’s decision not to apply a settlement credit and REMAND for the district court to calculate the appropriate settlement credit amount and modify the final judgment accordingly.

VII.
For the foregoing reasons, we AFFIRM the district court’s choice of jury instructions; we AFFIRM that Trooper Smith was properly admitted to testify as an expert on accident investigation; and we AFFIRM the district court’s decision to uphold the jury’s award for past and future loss of consortium. We also REMAND to the district court so that it can calculate the settlement credit to which RCX is entitled and modify its final judgment accordingly.

All Citations
— F.3d —-, 2019 WL 409698

Footnotes

1
RCX claims, however, that Brown was employed by About Tyme, another carrier. RCX had a trailer interchange agreement with About Tyme, under which they could use the other company’s trailers. And About Tyme’s logo was also on the trailer when the accident occurred. Brown had also listed About Tyme in his logbook.

2
RCX argues that it can raise and appeal a purely legal issue in a Rule 50(b) motion even though it did not raise that issue in its original Rule 50(a) motion. But RCX provides no support for this proposition. In fact, the case it cites cuts the opposite direction. In Feld Motor Sports, this court held that it could only review an appeal of a district court’s purely legal conclusions if the challenging party “sufficiently preserved [it objections] in a Rule 50 motion.” Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017). The court later reaffirmed the rule that a party only “sufficiently preserve[s]” an argument using Rule 50 when it raises the argument in a Rule 50(a) and then renews it in a Rule 50(b) motion. Id. Here, as detailed above, RCX did not sufficiently preserve its statutory-employee arguments.

3
There are three main statutes at issue here. First, the definition of motor carrier: “The term ‘motor carrier’ means a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). Second, the definition of broker:
The term “broker” means a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.
49 U.S.C. § 13102(2).
Third, the statute giving the Secretary of Transportation the power to regulate motor carriers who lease trucking equipment: “The Secretary may require a motor carrier providing transportation subject to jurisdiction under subchapter I of chapter 135 that uses motor vehicles not owned by it to transport property under an arrangement with another party.” 49 U.S.C. § 14102(a).

4
Both parties implicitly assume that an accident investigator can serve as an expert witness. Because RCX merely attacks Smith’s opinion and does not challenge the idea that an accident investigator can serve as an expert at all, we reserve that more fundamental question for a later date.

5
Courts also look to Dabuert ’s list of non-exclusive factors when determining whether testimony is reliable:
(1) whether the theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the method used and the existence and maintenance of standards controlling the technique’s operation; and (4) whether the theory or method has been generally accepted by the scientific community.
Arkema, Inc., 685 F.3d at 459.

6
RCX does not challenge Smith’s qualifications. Officer Smith has worked on accident investigations since he became a Texas State Trooper in 2010. He received training on accident investigation when he became a trooper. He also took an advanced course on accident investigation. He has investigated “[o]ver a hundred” accidents.

7
Smith offered testimony as an accident investigator, not an accident recreator, which requires additional training and attention to detail. Accident investigation merely consists of “responding to the scene, looking at the evidence, taking statements from witnesses, making a preliminary determination about what may have been a contributing factor to the crash, [and] writing [and] submitting the initial crash report.” Stevens Transp., Inc. v. Glob. Transp., LLC, No. 6:15-CV-552-MHS-JDL, 2016 WL 9244669, at *3 (E.D. Tex. May 24, 2016) (internal citations omitted).
While this court has held that an investigating officer may not offer lay testimony on causation, Duhon v. Marceaux, 33 F. App’x 703 (5th Cir. 2002) (unpublished), lay opinions are analyzed differently than expert opinions. See generally Smith v. Progressive Cty. Mut. Ins. Co., No. 11-CV-872, 2012 WL 702061, at *2 (E.D. La. Mar. 1, 2012) (discussing the differences between lay and expert opinion testimony for investigating officers).

8
See, e.g., Stevens Transport, 2016 WL 9244669, at *2-4 (permitting DPS lead investigator to offer expert opinion on the cause of the accident); Cartwright v. Am. Honda Motor Co., Inc., No. 9:09-CV-2015, 2011 WL 3648565, at *4 (E.D. Tex. Aug. 15, 2011) (permitting investigating officer to offer an expert opinion regarding the cause of the accident); Vigil v. Michelin N. Am., Inc., No. EP-05-CV-001-KC, 2007 WL 2778233, at *4 (W.D. Tex. Aug. 23, 2007) (permitting the investigating officer to offer expert opinion on the cause of the accident); Martin v. Pride Offshore Co., No. 97-CV-3754, 1999 WL 4921, at *1 (E.D. La. Jan. 6, 1999) (permitting an investigating officer to offer expert testimony on the cause of the accident), aff’d, 198 F.3d 241 (5th Cir. 1999); Main v. Eichorn, No. W-10-CV-158, 2011 WL 11027844, at *3 (W.D. Tex. Mar. 10, 2011) (allowing an investigating officer to testify as an expert); but see Koenig v. Beekmans, No. 5:15-CV-00822-RCL-RBF, 2018 WL 358307, at *5 (W.D. Tex. Jan. 9, 2018) (excluding an accident investigator who admitted that he was simply “speculating as to who was in whose lane.”).

9
This court has not spoken definitively about the appropriate standard of review for overturning a jury’s award of damages. There are three that stand out in the case law. See generally Foradori v. Harris, 523 F.3d 477, 504 (5th Cir. 2008) (discussing the three different standards). The first is abuse of discretion. Salinas, 286 F.3d at 830 (“We review denial of remittitur for abuse of discretion.”) (internal citation omitted); see also Foradori, 523 F.3d at 503 (reviewing other cases). The second is the “strongest showing” standard. Lebron v. United States, 279 F.3d 321, 325 (5th Cir. 2002) (internal citation omitted); see also Enter. Ref. Co. v. Sector Ref. Inc., 781 F.2d 1116, 1118 (5th Cir. 1986); Dixon v. Int’l Harvester Co., 754 F.2d 573, 590 (5th Cir. 1985); Caldarera v. E. Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 934 (5th Cir. 1982); Bridges v. Groendyke Transp., Inc., 553 F.2d 877, 880 (5th Cir. 1977); Wackman v. Rubsamen, 602 F.3d 391, 405 (5th Cir. 2010); Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1378 (5th Cir. 1992). The third standard is the “shocks the conscience” standard. Caldarera, 705 F.2d at 784 (internal citation and quotation marks omitted); see also Wackman, 602 F.3d at 404-05; Allen v. Seacoast Prods., Inc., 623 F.2d 355, 364 (5th Cir. 1980); Bridges, 553 F.2d at 880; Williams v. Chevron U.S.A., Inc., 875 F.2d 501, 506 (5th Cir. 1989) (quoting Caldarera, 705 F.2d at 784); see also Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 924 (5th Cir. 2002) (citing Caldarera, 705 F.2d at 784).
Because RCX challenges the district court’s decision to affirm the jury’s award, as opposed to directly challenging the jury’s award, we apply the abuse of discretion standard. McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 482 (5th Cir. 2015).

10
See also Elizondo v. Krist, 338 S.W.3d 17, 29 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 415 S.W.3d 259 (Tex. 2013) (“[T]estimony that the primary victim’s injuries interfere with family activities is sufficient.”); Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993) (holding that testimony that, as a result of wife’s injuries, couple no longer engages in their former outdoor activities and that travel has become difficult is “at least some evidence” of loss-of-consortium damages).

11
We found other verdicts that were higher, but we do not rely on these verdicts because a higher court reversed them. The higher courts did not reverse because the jury awards were excessive—they reversed for other reasons. See, e.g., U-Haul Int’l, Inc. v. Waldrip, 322 S.W.3d 821, 857 (Tex. App.—Dallas 2010) (affirming the jury’s award of a $1.6 million future consortium loss), aff’d in part, rev’d in part on other grounds, 380 S.W.3d 118 (Tex. 2012); Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 459 (Tex. App.—Dallas 2007) (reversing a jury’s $2 million loss of consortium claim, but on other grounds). While this court on one other occasion relied on a partially reversed jury verdict, we specifically affirmed the lower court’s loss of spousal consortium ruling, which makes it distinguishable from the cases above. See Vogler, 352 F.3d at 157 (relying on the jury’s award in Douglass v. Delta Air Lines, Inc., 709 F.Supp. 745 (W.D. Tex. 1989), aff’d in part, rev’d in part, 897 F.2d 1336 (5th Cir. 1990) ).

12
We performed this conversion using the Bureau of Labor Statistics’s CPI Inflation Calculator, available at https://data.bls.gov/cgi-bin/cpicalc.pl. See Ledet, 455 F. App’x at 423 n.1 (using the Bureau of Labor Statistics’s CPI Inflation Calculator).

13
The largest award we found for loss of past consortium was $300,000. Douglass, 709 F.Supp. at 763 (W.D. Tex. 1989). That award was rendered in 1989. Converted to 2018 dollars, $300,000 translates to roughly $625,000. Douglass, however, is not factually similar.
The most important reference point for determining factual similarity is whether the primary victim lived or died. For example, in Lebron, this court merely looked to see whether the child in past cases had died or lived when determining the correct comparison point for parental loss of consortium. Lebron, 279 F.3d at 327; see also Moore, 353 F.3d at 384 (“Poignant factual distinctions are that Plaintiff herein lost no other family member from this accident”). The facts here do not mirror Douglass. In Douglass, the father died in a plane crash. Mr. Puga lived. The difference between life and death makes the cases meaningfully different.