2018 WL 6110924

United States District Court, D. Arizona.
Joyce Garrett, Plaintiff,
v.
Johnnye L Woodle, et al., Defendants.
No. CV-17-08085-PCT-BSB
|
11/21/2018

ORDER
*1 Defendants Johnnye L. Woodle, Lloyd H. Woodle, and Specialized Services Transportation, Inc. have filed a motion for partial summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure.1 (Docs. 62, 63.) Defendants argue that they are entitled to summary judgment as a matter of law on Plaintiff Joyce Garrett’s damages claims for (1) past or future medical treatment provided, or to be provided, after February 1, 2016, and (2) wage loss or future wage loss and loss of earning capacity resulting from Plaintiff’s early retirement in August 2017. (Doc. 62 at 1.) Defendants assert that they are entitled to summary judgment because Plaintiff has not disclosed any expert opinion evidence to establish that these damages were caused by Defendants’ alleged negligence. (Id.) The motion is fully briefed. (Docs. 65, 66.) As set forth below, the Court grants the motion, in part.

I. Background
This matter arises from a May 13, 2015 collision involving two tractor-trailers traveling westbound on Interstate 40 in Mohave County, Arizona.2 (DSOF ¶ 5.)3 At the time of the accident, Plaintiff was a passenger in a tractor-trailer that was struck from behind by another tractor-trailer that Defendant Johnnye L. Woodle (“Woodle”) was driving and that Defendant Specialized Services Transportation, Inc. (“SST”) owned. (Id. at ¶ 6, Doc. 1 at ¶ 10.) Plaintiff was a self-employed commercial truck driver working as a team with her husband. (DSOF ¶ 5.) Plaintiff alleges that Woodle was negligent in causing the accident by failing to control her speed to avoid a collision, and by causing a collision with the tractor-trailer in which Plaintiff was a passenger. (Doc. 1 at ¶ 11.) Plaintiff claims that her neck, back, and shoulders were injured in the accident.

(DSOF ¶ 8.)

A. Plaintiff’s Claims
Plaintiff alleges the following claims: (1) negligence against Woodle (Count One);
(2) negligence per se against Woodle based on the breach of her statutory duty to control her speed and avoid a collision, Ariz. Rev. Stat. § 28-701(A) (Count Two); (3) negligent entrustment against SST, owner of the tractor-trailer that Woodle was driving (Count Three); and (4) respondeat superior liability against SST for Woodle’s negligence (Count Four). (Doc. 1 at ¶¶ 14-30.) Plaintiff alleges that “as a proximate result of the negligence, carelessness, and recklessness of the Defendant [Woodle], Plaintiff sustained severe personal injuries.” (Id. at ¶ 12.)

B. Plaintiff’s Medical Treatment and Lost Wage Claims
*2 Defendants state that Plaintiff seeks to recover damages for (1) past and future medical treatment that she allegedly incurred, or will incur, as a result of this accident, and (2) four years of lost wages and lost earning capacity resulting from her early retirement allegedly caused by her pain from the injuries suffered in the accident. (DSOF ¶¶ 7-8.) A few days after the accident, on May 15, 2015, Plaintiff began seeking medical treatment with various providers. (DSOF ¶ 9.) On February 1, 2016, Plaintiff had an appointment with Dr. Haynes. (Id.) Dr. Haynes told Plaintiff her pain “was all in [her] head.” (DSOF ¶ 10.) Following the February 1, 2016 visit with Dr. Haynes, Plaintiff did not seek medical treatment until October 7, 2016. (DSOF ¶ 11.) During that eight month gap in treatment, Plaintiff had a screening examination with the U.S. Department of Transportation on June 8, 2016. (DSOF ¶ 12.) During that examination, Plaintiff reported that she was not experiencing any “neck or back problems.” (Id.)

Plaintiff resumed treatment on October 7, 2016 with Dr. Scott Campbell, her current pain management physician. (DSOF ¶ 13). During his deposition in this case, Dr. Campbell confirmed that he has not provided, and has not been asked to provide, any opinions concerning (1) whether Plaintiff’s condition is permanent, (2) the duration of Plaintiff’s condition, (3) Plaintiff’s ability to return to work based on her condition, or (4) the future treatment Plaintiff will need. (DSOF ¶ 14.) Dr. Campbell confirmed that a person does not have to suffer trauma, such as a car accident, to have neck pain and to require the treatment he provided to Plaintiff. (DSOF ¶ 15.) Dr. Campbell’s May 26, 2017 treatment note states that Plaintiff “was diagnosed with fibromyalgia and lupus recently and is followed by a specialist.” (DSOF ¶ 16.) During his deposition, Dr. Campbell stated that pain management treatment is “pretty common” for people diagnosed with fibromyalgia. (DSOF ¶ 17.)

Plaintiff also seeks four years of lost wages, including future lost wages, because she claims her injuries forced her to retire early.4 (DSOF ¶ 18.) Specifically, Plaintiff asserts that she “could no longer drive [a tractor-trailer] due to her pain. Plaintiff’s ability to work has been cut short by this accident.” (Id.) Plaintiff does not dispute that three months after the accident, in the middle of August 2015, she resumed working with her husband as a truck driving team, and continued to work as a truck driver until August 2017. (DSOF ¶ 19.)

II. Summary Judgment Standard
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party may not rely on the mere allegations in the pleadings, but must set forth by affidavit, or other appropriate evidence, specific facts showing there is a genuine issue for trial. Id. at 249. The nonmoving party must produce at least some “significant probative evidence tending to support” its position. Smolen v. Deloitte, Haskins, & Sells, 921 F.2d 959, 963 (9th Cir. 1990).

The issue is not whether the “ ‘evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.’ ” United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir. 1995) (quoting Liberty Lobby, 477 U.S. at 252). “If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). The Court considers the motion for partial summary judgment under this standard.

III. Defendants’ Motion for Partial Summary Judgment
*3 Defendants move for partial summary judgment on Plaintiff’s claims for damages for certain past and future medical treatment, and for wage loss and loss of earning capacity based on her early retirement. (Doc. 62 at 1.) Defendants assert that they are entitled to summary judgment because Plaintiff has not disclosed any expert opinion evidence to establish that the accident caused these damages. (Id. at 2.) In response, Plaintiff asserts that she properly disclosed expert opinions from her treating physicians and complied with Rule 26(a)(2)(C). (Doc. 65 at 3.) As set forth below, the Court finds that Plaintiff did not properly disclose expert opinions from her treating physicians.5

A. Disclosure Requirements
In the Case Management Order (“CMO”), the Court set deadlines for the parties to exchange “full and complete expert disclosures as required by Rule 26(a)(2)(A)-(E)” of the Federal Rules of Civil Procedure. (Doc. 25 at 3.) The CMO stated that “[d]isclosures under Rule 26(a)(2)(A) must include the identities of treating physicians and other witnesses who will provide testimony under Rules 702, 703, or 705 of the Federal Rules of Evidence, but who are not required to provide expert reports under Rule 26(a)(2)(B).” (Id.) The CMO explained that “Rule 26(a)(2)(C) disclosures are required for such witnesses.” (Id.) The CMO specified that “Rule 26(a)(2)(C) disclosures must identify not only the subjects on which the witnesses will testify, but must also provide a summary of the facts and opinions to which the expert will testify. The summary, although not as detailed as a Rule 26(a)(2)(B) report, must be sufficiently detailed to provide fair notice of what the expert will say.” (Id.)

In Goodman v. Staples the Office Superstore LLC, 644 F.3d 817, 826 (9th Cir.
2011), the Ninth Circuit explained that “a treating physician is only exempt from Rule 26(a)(2)(B)’s written report requirement to the extent that his opinions were formed during the course of treatment.” Therefore, the CMO noted that “for opinions formed outside the course of treatment, Rule 26(a)(2)(B) written reports are required.” (Doc. 25 at 4 n.3.) The CMO further stated that “[f]or opinions formed during the course of treatment, Rule 26(a)(2)(C) disclosures will suffice.” (Id.)

As set forth in the CMO, and explained in Ninth Circuit precedent, Plaintiff was required to disclose a written report under Rule 26(a)(2)(B) from any treating physician testifying to opinions formed outside the course of Plaintiff’s treatment. For a treating physician offering opinions formed during the course of Plaintiff’s treatment, Plaintiff was required to disclose a Rule 26(a)(2)(C) summary of the treating physician’s opinions and the facts to which the treating physician was expected to testify.

B. Plaintiff Did Not Comply with Rule 26(a)(2)(C)
*4 Plaintiff asserts that she complied with Rule 26(a)(2)(C) by disclosing the “subject matter and a summary of facts and opinions” to which her “non-retained treating physicians” were expected to testify. (Doc. 65 at 2.) Plaintiff states that she disclosed her medical providers and their records to Defendants as part of her “mandatory disclosure.” (Doc. 65 at 3; Exs. A-1 and A-2.) Plaintiff asserts that she complied with Rule 26(a)(2)(C) because her disclosures stated that:
The above healthcare providers are expected to testify in accordance with their medical records submitted herewith; including without limitation, Plaintiff’s diagnosis, symptoms, prognosis, course of medical treatment; the nature, extent and permanency of Plaintiff’s injuries; causation; the amount and reasonableness of medical charges; and the medical necessity of Plaintiff’s treatment.
(Doc. 65 at 3.) Plaintiff asserts that Defendants had adequate notice of her treating physicians’ testimony on the issue of causation because their treatment records make it “evident” that they were “treating Plaintiff for symptoms and complaints that arose from the May13, 2015 accident, the subject of this litigation.” (Id. at 4; Exs. A-1, A-2.)

In their reply, Defendants assert that Plaintiff’s disclosure statements did not comply with Rule 26. (Doc. 66 at 4.) To support their argument, Defendants cite Cooke v. Town of Colorado City, 2013 WL 551508 (D. Ariz. Feb. 13, 2013). (Doc. 66 at 4.) In that case, the court considered a motion to strike the testimony of the plaintiff’s treating physician for failure to comply with Rule 26(a)(2)(C). Cooke, 2013 WL 551508 at *4. Similar to this case, in Cooke, plaintiff’s expert disclosure stated that each medical witness would testify
concerning the medical condition of Plaintiff Ronald Cooke, their diagnoses, the physical limitations on Mr. Cooke, the facts establishing and the extent of his disabilities, and his needs for electricity and clean water, his need for accessible housing, including an accessible shower, and the limitations on his physical activity due to his disabilities.
Id. The court found that the disclosure statement violated Rule 26(a)(2)(C). Id. The court explained that the disclosure “advise[d] the reader that the witnesses will have opinions in certain areas, but fail[ed] to state what the opinions are, and the factual basis for those opinions.” Id. (emphasis in original). The court further stated that by referring to several witnesses in the same statement, the disclosure could mean that the witnesses would offer different opinions about plaintiff’s needs. Id. The court concluded that “[n]ot only do the disclosures say nothing about the opinions to which the witnesses intend to testify, but they do not even attempt to state facts supporting the opinions.” Id. Therefore, the disclosures violated Rule 26(a)(2)(C) and plaintiff could not use the witness’s testimony in support of a summary judgment motion or at trial, unless plaintiff showed that the inadequate disclosure was harmless or substantially justified. Id. (citing Fed. R. Civ. P. 37(c)(1)). The court found that plaintiff had not made that showing. Id. at *5.

Similar to the disclosure statement in Cooke, Plaintiff’s disclosure statements refers to several “healthcare providers.” (Doc. 65 at 3.) The disclosure statements indicate that the healthcare providers will have opinions in certain areas, including Plaintiff’s injuries and the causation of those injuries, but do not state what the opinions are, and do not identify the factual basis for those opinions. (Id.) The disclosure statements do not provide a “summary of the facts and opinions” to which each healthcare provider is expected to testify. See Fed. R. Civ. P. 26(a)(2)(C). Thus, Plaintiff’s disclosure statements do not comply with Rule 26(a)(2)(C).

C. Sanctions for Failing to Disclose Expert Opinions
*5 Rule 37 provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1). Thus, Rule 37 “gives teeth to [Rule 26(a)’s] requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

Rule 37(c)(1) is a “self-executing,” “automatic” sanction designed to provide a strong inducement for disclosure. Id. (quoting Fed. R. Civ. P. 37 advisory committee’s note (1993)). Rule 37(c)(1), however, allows the use of information or witnesses that were not timely disclosed if the failure to disclose was substantially justified or harmless, but places “the burden [ ] on the party facing sanctions to prove harmlessness.” Id. at 1107 (citing Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001) (“[I]t is the obligation of the party facing sanctions for belated disclosure to show that its failure to comply with [Rule 26] was either justified or harmless….”)).

In her response to the motion for summary judgment, Plaintiff argues that her disclosures were sufficient and, thus, she does not argue that any insufficient disclosure was substantially justified. (Doc. 65.) Plaintiff suggests, however, that any asserted deficiencies in her disclosures were harmless because Defendants failed to request any supplemental disclosure or clarification. (Id. at 4.) This argument fails because Plaintiff had disclosure obligations under Rule 26 and the CMO, even in the absence of a discovery request from Defendants.

Defendants assert that Plaintiff cannot introduce expert medical opinions on causation because she did not provide any summary of the facts and opinions of her treating physicians. (Doc. 62 at 5, 7.) Although Plaintiff did not disclose opinion testimony from any of her treating physicians, Defendants do not seek summary judgment on Plaintiff’s claims for medical treatment before February 1, 2016. Instead, Defendant argues that Plaintiff “has no expert opinion that any of her medical care from October 7, 2016 to the present is casually related to the accident.” (Id. at 7.) Defendants further assert that Plaintiff does not have any expert opinion evidence that the injuries from the accident were the cause of the pain that allegedly forced her to retire in August 2017. (Id.)

The Court agrees with Defendants’ assertion that Plaintiff’s disclosures related to her “healthcare providers” did not comply with Rule 26(a)(2)(C). Therefore, Plaintiff is precluded from offering opinion testimony from those providers, including opinions formed during the course of treatment, if those opinions are not recorded in the medical records. However, Plaintiff may testify about her injuries, her pain and suffering, and the medical treatment she received. Plaintiff’s treating physicians may testify about their treatment of Plaintiff, as disclosed in their medical records.

D. Standards to Establish Negligence Under Arizona Law
Plaintiff asserts negligence claims against Defendants for the injuries she allegedly sustained as a result of the 2015 accident. (Doc. 1.) To prevail on a negligence claim, Plaintiff must prove: (1) a duty on the part of the defendant to exercise reasonable care, (2) a breach of that duty, (3) a causal connection between the negligent conduct and the resulting injury, and (4) actual damages. Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). The existence of a duty is generally a question of law, while the other three elements are factual issues “generally within the province of the jury.” Ritchie v. Krasner, 211 P.3d 1272, 1279 (Ariz. Ct. App. 2009) (citing Gipson, 150 P.3d at 230); see Ball v. Prentice, 781 P.2d 628, 630 (Ariz. Ct. App. 1989) (the “nature, severity and extent of [a plaintiff’s] injuries and whether they are supported by medical or other expert witnesses is a question for the trier of fact.”); Smith v. Chapman, 564 P.2d 900, 903 (Ariz. 1977) (en banc) (stating that whether an accident is “the proximate cause of the injury or damages is, generally, a question for the jury.”).

*6 To establish causation under Arizona law, the plaintiff “must show some reasonable connection between defendant’s act or omission and plaintiff’s damages or injuries.” Robertson v. Sixpence Inns of Am., Inc., 789 P.2d 1040, 1047 (Ariz. 1990) (en banc). “The defendant’s act or omission need not be a ‘large’ or ‘abundant’ cause of the injury; even if defendant’s conduct contributes ‘only a little’ to plaintiff’s damages, liability exists if the damages would not have occurred but for that conduct.” Id. (quoting Ontiveros v. Borak, 667 P.2d 200, 205 (Ariz. 1983)).

Defendants argue that Plaintiff “cannot recover any damages for past or future medical treatment provided or to be provided after February 1, 2016,” and that Plaintiff “cannot recover any damages for her claim of wage loss/future wage loss and/or loss of earning capacity due to her ‘early’ retirement in August 2017.” (Doc. 62 at 1.) Defendants assert that Plaintiff has not offered any expert opinion evidence to establish that the 2015 accident caused these damages. Nonetheless, they do not move for summary judgment on Plaintiff’s negligence claims in their entirety, and they do not argue that the accident did not the cause any of Plaintiff’s alleged injuries. Therefore, it appears that Defendants are arguing that Plaintiff cannot establish whether her injuries are permanent or whether she will require future treatment. (Doc. 62 at 8.)

1. Past or Future Medical Treatment
Defendants state that the only evidence that Plaintiff disclosed for medical treatment after February 1, 2016 is a record from an appointment with Dr. Campbell on October 7, 2016. (Doc. 62 at 8.) Defendants assert that Dr. Campbell has stated that he has not and will not provide an opinion that connects his treatment of Plaintiff to the 2015 accident. (DSOF ¶¶ 4, 14.) Defendants also assert that Dr. Campbell stated that Plaintiff was diagnosed with lupus and fibromyalgia and that pain management treatment is “common for those conditions.” (Id. at ¶¶ 15-17.)

Plaintiff does not dispute that she had an eight-month gap in treatment from February 1, 2016 to October 7, 2016. (Doc. 65.) Plaintiff also does not dispute that the only evidence she has disclosed for medical treatment after February 1, 2016 is her treatment with Dr. Scott Campbell, beginning on October 7, 2016. (Id.) Defendants assert that, based on his deposition testimony, Dr. Campbell “has not and will not provide any opinions relating the treatment he is providing to Plaintiff to the accident.” (Doc. 62 at 8; DSOF ¶¶4, 14.) Plaintiff states that “[n]ot being asked to develop an opinion is separate and distinct from arriving at an opinion on causation through the care and treatment of the patient,” and suggests Dr. Beale and Dr. Campbell may have opinions on causation based on their care and treatment of Plaintiff. (Doc. 65 at 4.) Plaintiff, however, has not disclosed any opinion evidence from any healthcare providers, including Dr. Beale and Dr. Campbell. (Doc. 65.)

Defendants assert that Plaintiff cannot prove that Dr. Campbell’s treatment is related to her injuries from the accident rather than related to her fibromyalgia and lupus. (Doc. 62 at 8.) Defendants note that Dr. Campbell has confirmed that pain management treatment is “pretty common” for people with fibromyalgia, and that a person does not have to suffer trauma to have neck pain and qualify for the treatment he provided to Plaintiff. (Doc. 62 at 8; DSOF ¶¶15-17.) Thus, Defendants argue that the evidence is insufficient for Plaintiff to prove causation and, therefore, “summary judgment should be entered in Defendants favor as to all medical care received by Plaintiff after February 1, 2016.” (Doc. 62 at 8.)

*7 In response, Plaintiff asserts that the “majority” of medical records she disclosed to Defendants “refer to the…May 13, 2015 [accident] as the date of the onset of symptom.” (Doc. 65 at 3.) To support that assertion, Plaintiff attached “a collection of exemplars of the records” that allegedly “establish causation.” (Id.; Doc. 65, Exs. 1-A to 1-E; Doc. 65-1 at 2-29.) These records are for treatment in 2015, with the exception of a single note for treatment on October 7, 2016. (Doc. 65, Exs. A-E.)

However, whether Plaintiff’s alleged injuries are “casually connected to the accident and the extent and duration of those injuries is a matter for jury determination.” Ball, 781 P.2d at 630 (although plaintiff had not sought any treatment in connection to his claimed injuries, whether his claimed injuries were causally connected to the accident was a jury question and the trial court erred in granting summary judgment on plaintiff’s claim for punitive damages); see Ontiveros, 667 P.2d at 208 (the issue of causation “should ordinarily be a question of fact for the jury under usual principles of Arizona tort law”).

Accordingly, the Court denies Defendants’ motion for summary judgment on Plaintiff’s claims for damages for medical treatment provided after February 1, 2016, to the extent that treatment has been disclosed in medical records. However, Plaintiff has not disclosed any expert opinion evidence to establish that her injuries are permanent, or that she will require future care. Plaintiff does not claim that she has the training, education, or experience to offer these medical opinions. See Fed. R. Evid. 701, 702. Therefore, without expert opinion evidence on these issues, Plaintiff’s claim for future medical treatment fails as a matter of law. Therefore, the Court grants Defendants’ motion to the extent it seeks summary judgment on Plaintiff’s claim for future medical treatment.

2. Lost Wages and Loss of Earning Capacity
Defendants assert that Plaintiff seeks damages in the form of “future lost wages” and lost earning capacity because she retired four years early due to pain in her neck, back and shoulders that was caused by the accident. (Doc. 62 at 1; DSOF ¶ 18.)6Defendants move for summary judgment on these damages because Plaintiff has not disclosed any expert opinion evidence supporting this claim for damages. (Doc. 62 at 8.)

In a personal injury action, “Arizona allows unlimited recovery for actual damages, expenses for past and prospective medical care, past and prospective pain and suffering, lost earnings, and diminished earning capacity.” Wendelken v. Superior Court in and for Pima County, 671 P.2d 896, 899 (Ariz. 1983). “Thus, in a personal injury action, there is recovery for a decrease in earning capacity as distinct from lost wages.” Mandelbaum v. Knutson, 462 P.2d 841, 842 (Ariz. 1969). “[I]mpairment of earning capacity is an item of general damage, permitting recovery for loss or diminution of the power to earn in the future and is based upon such factors as plaintiff’s age, life expectancy, health, habits, occupation, talents, skills, experience, training and industry.” Id. at 842-43. “To sustain such an award, the injured person must establish the fact of diminished capacity and the fact that it is permanent.” Id. at 842. “Once the right to damages is established, uncertainty as to the amount of damages does not preclude recovery.” Lewis, 825 P.2d at 18. Doubt about the extent of an injury should be resolved in favor of plaintiff. Gilmore v. Cohen, 386 P.2d 81, 82 (Ariz. 1963). However, “the plaintiff’s evidence [must] provide some basis for estimating his loss.” Id.

*8 Defendants move for summary judgment of Plaintiff’s claims for lost wages and for lost earning capacity. (Doc. 62 at 1.) Defendants argue that to recover damages for past or future income loss resulting from her early retirement, Plaintiff must prove that the accident was the proximate cause of her pain that forced her to retire early. (Doc. 62 at 9.) Defendants assert that these claims are undermined because Plaintiff returned to work three months after the accident (Id.) Defendants also argue that Plaintiff is not entitled to damages for lost earning capacity because she has not presented any expert opinion evidence that her injuries are permanent. (Doc. 62.)

Defendants do not argue that Plaintiff is not entitled to any damages for lost wages. Rather, they seek an order stating that Plaintiff cannot recover “economic damages” based on her early retirement because she cannot show causation. (Id. at 8.) As set forth above, Plaintiff has not disclosed any expert opinion evidence to establish the degree of any impairment or that her injuries are permanent. Therefore, she cannot establish her claim for lost earning capacity. See Mandelbaum, 462 P.2d at 842. The Court grants Defendants’ motion to the extent it seeks summary judgment on Plaintiff’s claim for lost or impaired earning capacity. However, Plaintiff may testify about her injuries and pain, and how her pain affected her ability to work from immediately after the accident to the present. However, Plaintiff may not testify about whether her injuries are permanent or how her injuries may affect her future ability to work. Therefore, the Court grants Defendants’ motion to the extent it seeks summary judgment on Plaintiff’s claim for lost future income.

Accordingly,

IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. 62) is GRANTED on Plaintiff’s claim for future medical treatment, lost earning capacity, and lost future income and is DENIED in all other respects.

Dated this 21st day of November, 2018.

All Citations
Slip Copy, 2018 WL 6110924

Footnotes

1
Defendants filed a separate “notice of errata” requesting oral argument on the motion. (Doc. 67.) The Court denies Defendants’ request for oral argument because the issues have been briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); LRCiv 7.2(f).

2
The parties agree that this Court has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332. (Doc. 19 at 3.)

3
Citations to “DSOF” are to Defendants’ Separate Statement of Facts in Support of Motion for Partial Summary Judgment. (Doc. 63.)

4
Defendants characterize Plaintiff’s request for damages in this manner, the Complaint does not specifically seek this category of damages. (See Doc. 1.)

5
Plaintiff did not file a separate, contravening statement of facts in support of her response to the motion for summary judgment, as Local Rule 56.1(b) requires. Thus, the Court can deem Defendants’ statement of facts “undisputed” for purposes of the motion for summary judgment. Because Plaintiff is represented by counsel and does not provide any reason for her failure to file a separate statement of facts, the Court will consider the Defendants’ statement of facts undisputed. See Szaley v. Pima Cty., 371 F. App’x. 734, 735 (9th Cir. 2010) (holding that district court “properly deemed defendant’s statement of facts to be true because plaintiff failed to comply with Local Rule 56.1(b)”); see Taylor v. AFS Techs., Inc., 2011 WL 1237609, at *6 (D. Ariz. Apr. 4, 2011) (stating that the court relies on “the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.”).

6
This assertion is based on Plaintiff’s response to an interrogatory stating that Plaintiff can no longer drive a tractor trailer due to her pain and that her “ability to work has been cut short by this accident.” (DSOF ¶ 18; Doc. 65 at 53, lines 27-28.)

2018 WL 6037507

United States Court of Appeals, Fifth Circuit.
EVANSTON INSURANCE COMPANY, Plaintiff-Appellee
v.
MID-CONTINENT CASUALTY COMPANY, Defendant-Appellant
No. 17-20812
|
FILED November 19, 2018
Synopsis
Background: Excess insurer brought action against primary liability insurer, seeking reimbursement under commercial auto insurance policy and Texas law for payments made regarding three collisions involving insured’s tractor-trailer. The United States District Court for the Southern District of Texas, Gray H. Miller, District Judge, 2017 WL 4349252, granted excess insurer’s summary judgment motion and denied primary liability insurer’s summary judgment motion. Primary liability insurer appealed.

[Holding:] The Court of Appeals, Edith B. Clement, Circuit Judge, held that there was one accident subject to primary liability insurer’s $1 million limit of liability.

Reversed.

West Headnotes (12)

[1]
Federal Courts
Summary judgment

Appellate court would review the district court’s rulings on cross motions for summary judgment de novo and construe all evidence and inferences in favor of the non-moving parties.
Cases that cite this headnote

[2]
Federal Courts
Insurers and insurance
Insurance
Questions of law or fact

The interpretation of the word “accident” as used in an insurance contract is a question of law, which the appellate court reviews de novo.
Cases that cite this headnote

[3]
Insurance
Application of rules of contract construction
Insurance
Intention

Under Texas law, the court must construe an insurance policy according to the general rules of contract construction to give effect to the parties’ intent.
Cases that cite this headnote

[4]
Contracts
Presumptions and burden of proof

In interpreting a contract under Texas law, courts begin with the language of the contract because courts presume parties intend what the words of their contract say.
Cases that cite this headnote

[5]
Insurance
Plain, ordinary or popular sense of language

In interpreting an insurance policy under Texas law, the policy’s terms are given their ordinary and generally-accepted meaning unless the policy shows the words were meant in a technical or different sense.
Cases that cite this headnote

[6]
Insurance
Ambiguity in general

If the court is uncertain as to which of two or more meanings was intended in an insurance policy, a provision is ambiguous.
Cases that cite this headnote

[7]
Insurance
Particular words or terms
Insurance
Accident, occurrence, or event

Texas courts routinely interpret the term “accident” or its equivalent in an insurance policy without finding ambiguity.
Cases that cite this headnote

[8]
Insurance
Several injuries
Insurance
Several injuries

In interpreting the term “occurrence” in an insurance policy under Texas law, unless the proximate cause for the injuries is continuous and unbroken, there must be more than one occurrence.
Cases that cite this headnote

[9]
Insurance
Several injuries
Insurance
Several injuries

In interpreting an insurance policy under Texas law, the appropriate inquiry into whether more than one accident occurred is whether there was one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage; if so, then there was a single occurrence, but if the chain of proximate causation was broken by a pause in the negligent conduct or by some intervening cause, then there were multiple occurrences, even if the insured’s negligent conduct which caused each of the injuries was the same kind of negligent conduct.
Cases that cite this headnote

[10]
Insurance
Several injuries
Insurance
Several injuries

Texas insurance law only prohibits courts, in determining whether there was a single occurrence or multiple occurrences, from looking to the overarching cause of the injuries when the overarching cause is not a proximate, uninterrupted, and continuing cause of all the injuries.
Cases that cite this headnote

[11]
Insurance
Several injuries
Insurance
Several injuries

Under Texas insurance law, for purposes of determining whether there was a single occurrence or multiple occurrences, to proximately cause an injury, an actor need not be the last cause, or the act immediately preceding the injury.
Cases that cite this headnote

[12]
Insurance
Several injuries

Under Texas law, continuous negligence of driver of runaway truck was the single proximate, uninterrupted, and continuing cause of all collisions, and thus there was one accident subject to primary liability insurer’s $1 million limit of liability under broad language of commercial auto insurance policy, absent any indication that driver regained control of tractor-trailer, or that driver’s negligence was otherwise interrupted between collisions; truck driver did not apply the brakes at any time from striking first vehicle and until all vehicles came to rest.
Cases that cite this headnote

Appeal from the United States District Court for the Southern District of Texas, Gray H. Miller, U.S. District Judge
Attorneys and Law Firms
Jason K. Fagelman, Esq., Norton Rose Fulbright US, L.L.P., Dallas, TX, Warren S. Huang, Megan Roberts, Norton Rose Fulbright US, L.L.P., Houston, TX, for Plaintiff-Appellee.
Richard Brent Cooper, Esq., Diana L. Faust, Robert J. Witmeyer, Cooper & Scully, P.C., Dallas, TX, for Defendant-Appellant.
Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
Opinion

EDITH B. CLEMENT, Circuit Judge:

*1 This is a dispute between a primary liability insurer and an excess liability insurer over the number of “accidents” that took place under an insurance policy. Over a ten-minute period on November 15, 2013, the insured’s Mack truck struck (1) a Dodge Ram, (2) a Ford F150, (3) a Honda Accord, (4) a toll plaza, and (5) a Dodge Charger. The insurers’ disagreement focuses on the final three collisions. In previous state court litigation, multi-million-dollar settlements were reached between the various claimants and the insurance companies. But the Mack truck’s primary insurer refused to contribute more than $1 million toward the settlements of the final three collisions, claiming that they were part of a single “accident” under its policy and that $1 million was the primary insurer’s limit of liability per accident. The excess insurer sued the primary insurer in federal district court. The parties stipulated to the facts and filed cross motions for summary judgment as to whether the final three impacts constituted a single “accident” or separate “accidents” under the policy and Texas law. Although the district court held that two accidents occurred, we reverse because there was only one.

I.
Since the case was submitted below on a stipulation, there is no dispute as to the material facts. Mid-Continent Casualty Company issued a commercial auto insurance policy to Global Waste Services, LLC. The policy had a $1 million per-accident limit of insurance and required Mid-Continent to defend Global until the policy limit was exhausted. The policy provides in relevant part:
SECTION II—LIABILITY COVERAGE
A. Coverage
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”.
…
C. Limit of Insurance
Regardless of the number of covered “autos”, “insureds”, premiums paid, claims made or vehicles involved in the “accident”, the most we will pay for the total of all damages and “covered pollution cost or expense” combined resulting from any one “accident” is the Limit of Insurance for Liability Coverage shown in the Declarations.
All “bodily injury”, “property damage” and “coverage pollution cost or expense” resulting from continuous or repeated exposure to substantially the same conditions will be considered as resulting from one “accident”.
…
SECTION V—DEFINITIONS
A. “Accident” includes continuous or repeated exposure to the same conditions resulting in “bodily injury” or “property damage”.
In addition to the primary insurance policy, Global held an excess liability policy from Evanston Insurance Company with a $5 million per-accident liability limit. We are concerned with the terms of the primary insurance policy.

On November 15, 2013, a Global employee named Marlon Diggs lost control of his Mack truck on North Beltway 8 in Houston. Witnesses say that Diggs was driving the truck erratically. At approximately 11:04 a.m., the Mack truck hit a Dodge Ram in the 800 block of North Beltway 8. Three minutes later, the Mack truck struck a Ford F150 in the 2500 block of North Beltway 8. Two minutes after that, the Mack truck approached a toll plaza and caused the series of collisions which are at issue.

*2 At approximately 11:09 a.m., the Mack truck struck a Honda Accord that was waiting in line at the toll plaza in the 3300 block of North Beltway 8. Joseph Williams was driving the Accord and his wife, Laurie Williams, was the only passenger. The Mack truck pushed the Accord forward more than one hundred feet into the crash attenuator barrels separating two toll lanes, where the Accord came to rest perpendicular to the road. Although Joseph Williams was not seriously injured in the collision, Laurie Williams sustained severe injuries.

Once separated from the Accord, the Mack truck continued to travel through the automatic toll lane for approximately sixty-six feet before striking a Dodge Charger driven by Gwenetta Powell. While travelling through the lane, the Mack truck struck the tollbooth, causing significant damage. After impacting the Charger, the Mack truck continued pushing the Charger until it crashed into the right-side retaining wall, pinning the Charger between the Mack truck and the wall. At some point between the Mack truck’s impact with the Charger and the vehicles coming to rest against the wall, Diggs fell out of the truck. Diggs did not apply the brakes at any time from first striking the Accord until the Mack truck crashed into the retaining wall. Powell and Diggs both died in the accident.

Relatives of Powell sued Global in state court, and the Williams family intervened. Additionally, Harris County made demands on Global for the cleanup and repair of the toll plaza. All the claims ultimately settled. The Williams family received $4.5 million—approximately $1 million from Mid-Continent and the remaining $3.5 million from Evanston. Mid-Continent withdrew from the litigation after settling with the Williams family, claiming exhaustion of its policy limit. Evanston then settled with the Powells and Harris County for $2.1 million and $75,000, respectively. Mid-Continent did not contribute to either settlement.

Evanston filed suit in federal court in Texas seeking reimbursement from Mid-Continent for a portion of the payments Evanston made on behalf of Global. Evanston also sought to recover the entirety of its defense costs. The parties stipulated to the relevant facts and filed cross motions for summary judgment. Evanston argued that Mid-Continent incorrectly construed all the collisions occurring after the Mack truck’s impact with the Accord to be a single “accident.”1 According to Evanston, each separate impact between the Mack truck and another vehicle or object constituted a separate accident subject to separate liability limits. Mid-Continent asserted that under Texas law, there was only one accident because the only event that gave rise to the various injuries was Diggs’s negligence.

The district court referred the motions to a magistrate judge, who concluded that under the policy language two accidents occurred. According to the magistrate, “[t]he collisions between the Mack truck and the Honda Accord and between the Mack truck and the Dodge Charger were separate accidents because they occurred independently, the former did not lead to the occurrence of the latter.” The district court adopted the magistrate’s recommendation over Mid-Continent’s objection. The court entered judgment in favor of Evanston. The court concluded that Mid-Continent should have paid out a total of about $2,045,000 under the various settlements. Because Mid-Continent only paid $1 million in the underlying state litigation, the district court ordered it to pay Evanston about $1,045,000 plus the costs of Evanston’s defense. Mid-Continent appeals that ruling.

II.
*3 [1] [2]Because this case is before the court on cross motions for summary judgment, we review the district court’s rulings de novo and construe all evidence and inferences in favor of the non-moving parties. LCS Corr. Servs., Inc. v. Lexington Ins. Co., 800 F.3d 664, 669 (5th Cir. 2015). The parties agreed below that the only question was whether the Mack truck’s collisions near the toll plaza constituted one “accident” or multiple “accidents” under the language of the policy. The interpretation of the word “accident” as used in the insurance contract is a question of law, which the court reviews de novo. Ran-Nan Inc. v. Gen. Accident Ins. Co. of Am., 252 F.3d 738, 739 (5th Cir. 2001) (per curiam).

III.
[3] [4] [5] [6]The parties agree that Texas law governs this diversity action and informs the interpretation of the Mid-Continent insurance policy. Under Texas law, the court must construe the policy according to the general rules of contract construction to give effect to the parties’ intent. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 126 (Tex. 2010). Courts begin with the language of the contract “because we presume parties intend what the words of their contract say.” Id. “The policy’s terms are given their ordinary and generally-accepted meaning unless the policy shows the words were meant in a technical or different sense.” Id. “If the court is uncertain as to which of two or more meanings was intended, a provision is ambiguous.” H.E. Butt Grocery Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh (HEB), 150 F.3d 526, 529 (5th Cir. 1998).

A.
[7]The policy defines “accident” to include “continuous or repeated exposure to the same conditions resulting in ‘bodily injury’ or ‘property damage.’ ” Under the “Limit of Insurance” provision, the policy states that “[r]egardless of the number of covered ‘autos,’ ‘insureds,’ premiums paid, claims made or vehicles involved in the ‘accident,’ ” the most Mid-Continent would pay for “the total of all damages … resulting from any one ‘accident’ ” was the policy limit of $1 million. Although the parties disagree on its meaning, neither Mid-Continent nor Evanston argues the policy is ambiguous. And Texas courts routinely interpret the term “accident” or its equivalent without finding ambiguity. HEB, 150 F.3d at 529.

In fact, the policy’s definition of “accident” is virtually identical to the definitions in other commercial liability policies. See id. at 529. Some insurance policies use the term “occurrence” instead of “accident,” but both terms are usually defined as “continuous or repeated exposure to conditions,” and policies frequently provide that all damage or injury “arising out of continuous or repeated exposure” to the same conditions is considered to have arisen from the same accident or occurrence. There are sometimes small differences between definitions, but they are usually not significant.

For example, some policies define an accident or occurrence to include all injuries “resulting from the same general conditions,” Foust v. Ranger Ins. Co., 975 S.W.2d 329, 333 (Tex. App. 1998); others refer to all injuries “arising out of … substantially the same general conditions,” HEB, 150 F.3d at 529; and still others encompass all injuries “resulting from … substantially the same conditions.” Evanston argues that a policy’s use of the phrase “same conditions” instead of “same general conditions” requires a stricter similarity in the conditions to establish a single accident. This is likely incorrect. Texas recognizes that policies which define “occurrence” in the manner described above are to be interpreted more broadly than policies which leave occurrence undefined. See Foust, 975 S.W.2d at 334–35. And we have noted before that these types of definitions are “virtually identical.” See, e.g., HEB, 150 F.3d at 529. That the policy does not include the word “general” should not normally affect the analysis, and it does not affect the result here.

B.
*4 In any event, Texas applies the same approach—the “cause” approach—to interpreting all such provisions. Although the Supreme Court of Texas has never said so, we have repeatedly observed that “Texas courts agree that the proper focus in interpreting ‘occurrence’ is on the events that cause the injuries and give rise to the insured’s liability, rather than on the number of injurious effects.” HEB, 150 F.3d at 530. But while every case which addresses this topic acknowledges the same standard, different courts have sometimes understood that standard to mean different things.

Certain other jurisdictions, such as Louisiana, have adopted an “effects” approach to interpreting insurance policies in which each separate claim arising from the insured’s negligence is considered a separate occurrence. Pennzoil-Quaker State Co. v. Am. Int’l Specialty Lines Ins. Co., 653 F.Supp.2d 690, 704 n.4 (S.D. Tex. 2009). The “cause” approach simply tells us that the “effects” approach is not appropriate under Texas law. The cause test is not clear regarding which cause or causes are supposed to count.

Federal courts attempting to understand the “cause” test typically begin with our decision in Maurice Pincoffs Co. v. St. Paul Fire & Marine Ins. Co., 447 F.2d 204 (5th Cir. 1971). Pincoffs, the insured, unknowingly imported bird seed that had been contaminated in Argentina. Pincoffs then sold the seed to eight different dealers, who in turn resold it to bird owners. The birds that ate the contaminated seed died, and their owners sued. The policy at issue in Pincoffs defined “occurrence” as “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Id. at 206. We held “that the ‘occurrence’ to which the policy must refer is the occurrence of the events or incidents for which Pincoffs is liable.” Id. We reasoned that the incidents that subjected Pincoffs to liability were the eight sales, therefore there had been eight “occurrences” under the policy. Id. at 207.

This approach has sometimes been called the “liability-triggering event” test. Despite occasional disagreement as to whether the test is conceptually distinct from the “cause” test, the Pincoffs approach has become widely accepted following its endorsement by a Texas appellate court in Goose Creek Consol. ISD v. Cont’l Cas. Co., 658 S.W.2d 338 (Tex. App. 1983). In Goose Creek, an arsonist set fire to two schools in the same school district. Although the same arsonist was the but-for cause of both fires, the fires occurred several blocks and at least two hours apart, and neither caused the other. Id. at 339. Hoping to pay a single deductible, the school district argued that the fires should be treated as a single occurrence because both arose from the same “unbroken chain of events.” Id. After citing to Pincoffs, the court disagreed, concluding there were two occurrences because the “two fires [were] distinguishable in space and time and … one did not cause the other.” Id. at 340–41.

[8]Pincoffs and Goose Creek clarified that to determine the number of occurrences under a policy, we count the number of acts by the insured which gave rise to liability. This clarification is helpful, but incomplete. It leaves unanswered the question of at what level of generality we define the insured’s actions. In HEB, we answered that question by placing the emphasis on unbroken proximate causation. “While a single occurrence may result in multiple injuries to multiple parties over a period of time,” we recognized in HEB that “if one cause is interrupted and replaced by another intervening cause, the chain of causation is broken and more than one occurrence has taken place.” HEB, 150 F.3d at 534 (quotations omitted). In other words, unless the proximate cause for the injuries is continuous and unbroken, there must be more than one occurrence.

*5 In HEB, this court applied that rule to conclude that an HEB employee’s sexual abuse of two different children, a week apart, at an HEB store constituted two separate occurrences under HEB’s insurance policy. Id. at 535. Hoping to limit liability under its self-insurance, HEB had claimed there was only one occurrence because both incidents arose from its ongoing negligent supervision of the same employee. Rejecting that reasoning, we explained that Texas courts would not ignore the “immediate” cause of each child’s injury in favor of the “underlying negligent supervision” when counting occurrences. Id. at 530. Because it was the two independent acts of sexual abuse and not the underlying negligent supervision that “gave rise to HEB’s separate and distinct liability” to each child, two separate occurrences had taken place under the policy. Id. at 531.

HEB has sometimes been misunderstood, including by the district court in this case. Some courts have interpreted HEB to mean that a so-called overarching cause can never constitute a single occurrence. They say courts must instead identify the “immediate cause” of the injuries. See Pennzoil-Quaker State Co. v. Am. Int’l Specialty Lines Ins. Co., 653 F.Supp.2d 690, 705–06 (S.D. Tex. 2009) (“When there is more than one immediate cause of events giving rise to an insured’s liability in an underlying lawsuit, courts have rejected the argument that there is a single ‘occurrence’ based on continuous ‘exposure’ to the insured’s alleged negligence.”); Esparza v. Eagle Express Lines, Inc., No. 4:05-CV-315, 2007 WL 969585, at *10 (E.D. Tex. Mar. 28, 2007) (“[I]t was each collision in the instant case that created the continuous or repeated exposure to the same, or substantially the same, conditions, not the fact that the tractor-trailer crossed the median.”).

But what we actually said in HEB was “that when the underlying basis for liability is negligent supervision, yet the damage is caused by an intervening intentional tort, the court cannot look past the immediate cause of the damage for purposes of the insurance policy.” HEB, 150 F.3d at 531 (emphasis added). So although the district court construed HEB to mean that the “overarching cause” of the injuries must always be ignored for occurrence purposes, properly understood, HEB merely suggests that an overarching cause should be ignored where an intervening cause—like an intentional tort—breaks the chain of causation. As HEB itself recognized: if there was “but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage,” then there was one occurrence. Id. at 534 (quotations omitted).

This understanding is confirmed both by Texas case law and by our most recent decisions. The seminal Texas case on the topic is Foust. In Foust, a farmer hired a pilot to crop dust his fields with herbicide. Some of the herbicide drifted onto neighboring tracts of land, damaging the neighbors’ crops. Foust, 975 S.W.2d at 331. The neighbors and the pilot’s insurer disputed how many occurrences had taken place under the policy, which defined “occurrence” to mean “a sudden event or repeated exposure to conditions involving the aircraft during the policy period.” Id. at 333 (emphasis omitted). The policy also provided that all “bodily injury or property damage resulting from the same general conditions will be considered to be caused by one occurrence.” Id. (emphasis omitted).

The crop dusting took almost three hours, and the neighbors argued that a finding of a single “occurrence” was inappropriate. They emphasized that the plane had landed several times to refuel during that period, and that the temperature, wind, and altitude varied during the several passes over different sections of the property. Id. But the Texas appellate court disagreed that those changes were significant. Id. at 335. Focusing on the plain meaning of the policy language, it instead concluded that all of the damage had been caused by “repeated exposure to the same general conditions—the drift of a herbicide which was being applied to crops on adjoining property.” Id. It was the crop dusting process which had damaged the neighboring tracts, and the fact that the “single procedure” required the plane to land intermittently or change altitude did not affect the continuous nature of the crop dusting. Id.

*6 In other words, because the court in Foust considered all the injuries to have been caused by the same continuous negligence of the insured, there was only one occurrence under the policy. This court recently reaffirmed that principle in Seahawk Liquidating Trust v. Certain Underwriters at Lloyds London, 810 F.3d 986 (5th Cir. 2016). In Seahawk, the court considered whether there had been one occurrence or two where a drilling rig sustained damage in a February storm that was then a contributing factor to the rig’s malfunction and further damage after a July storm. The policy defined “occurrence” to include “a sequence of losses or damages arising from the same occurrence.” Id. at 991. The insurers argued that each storm was a separate occurrence because the damage caused by the February storm was not a proximate cause of the damage which occurred after the July storm.

Focusing on the decisions in Goose Creek and HEB, this court agreed with the insurers. We held that “[w]hen an occurrence is technically defined to include a series of losses arising from the same event, it includes only those losses proximately caused by that event.” Id. at 993. We again rejected reliance on the “overarching cause” or on pure but-for causation, clarifying that the focus should instead be “on the direct, immediate, and proximate cause of the losses to determine the number of occurrences.” Id. at 992–93. Because the district court did not clearly err by finding that the July storm was an intervening cause of the losses, this court agreed that two occurrences had taken place under the policy. Id. at 994; see also U.E. Texas One-Barrington, Ltd. v. Gen. Star Indem. Co. (General Star ), 332 F.3d 274, 282 n.7 (5th Cir. 2003) (Smith, J., concurring in part and dissenting in part) (recognizing that “[s]ome courts have suggested that an intervening cause might change the number of occurrences”).

[9]As articulated in HEB, Foust, and Seahawk, the appropriate inquiry is whether there was one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage. If so, then there was a single occurrence. If the chain of proximate causation was broken by a pause in the negligent conduct or by some intervening cause, then there were multiple occurrences, even if the insured’s negligent conduct which caused each of the injuries was the same kind of negligent conduct.

C.
With these principles in mind, reversal of the district court is clearly appropriate. The district court based its decision on a misunderstanding of the case law. In short, the court believed that the “overarching cause” of injuries can never constitute a single occurrence under Texas law, and instead attempted to identify the “immediate causes” of the injuries that gave rise to the insured’s liability. Because the insured did not become liable to anyone until his Mack truck collided with their vehicle, the court conceptualized each collision as a separate event giving rise to liability. That was a mistake.

[10] [11] [12]Texas law only prohibits courts from looking to the “overarching cause” of the injuries when the overarching cause is not a “proximate, uninterrupted, and continuing cause” of all the injuries. See HEB, 150 F.3d at 534. “To proximately cause an injury, an actor need not be the last cause, or the act immediately preceding the injury.” J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 663 (Tex. App. 1999). The appropriate question is whether the continuous negligence of the Mack truck driver was interrupted and the chain of causation broken. Cf. Foust, 975 S.W.2d at 335 (finding one occurrence where the insured’s crop dusting was a “single procedure”); Pincoffs, 447 F.2d at 206 (finding multiple occurrences because there were separate negligent sales).2

*7 The chain of causation remained unbroken on these facts. The ongoing negligence of the runaway Mack truck was the single “proximate, uninterrupted, and continuing cause” of all the collisions. After all, the parties agree that Diggs did not apply the brakes at any time from first striking the Accord until all the vehicles came to rest. The language of the contract provides that all injuries—no matter the number of vehicles involved or the number of claims made—arising from continuous or repeated exposure to substantially the same conditions are considered a single accident. The broad language of the policy must be given effect. See Foust, 975 S.W.2d at 335. Absent any indication that the driver regained control of the truck or that his negligence was otherwise interrupted between collisions (and we have no such indication), all of the collisions resulted from the same continuous condition—the unbroken negligence of the Mack truck driver. There was therefore one “accident” under the policy.

We REVERSE the district court and RENDER judgment in favor of Mid-Continent.

All Citations
— F.3d —-, 2018 WL 6037507

Footnotes

1
As for the two collisions which occurred before the Mack truck hit the Accord, neither the district court nor the parties discuss them, probably because the damage was minor and the excess coverage not implicated.

2
The district court also does an unconvincing job of distinguishing Twin City Fire Ins. Co. v. Ill. Nat’l Ins. Co., No. 1:11–cv–00144–SS, LEXIS 197629 (W.D. Tex. Mar. 12, 2012), a case in which a defect in the insured’s road construction caused three separate car accidents on different days. The court held that the three accidents constituted a single occurrence, emphasizing the broad language of the policy and that all the injuries were proximately caused by a single negligent act of the insured: the defective road construction. Id. at *7. That result would be consonant with the approach described here. Cf. General Star, 332 F.3d at 278 (finding nineteen occurrences where water leaks in nineteen apartment buildings were caused by nineteen separate negligent plumbing installations, not a single negligent plumbing installation).