Indivisible injury
INTRODUCTION
This memorandum seeks to explain whether a Plaintiff injured in an auto accident and, is in a second accident’ hurting the same area of his body, before his healthcare providers have had an opportunity to properly evaluate the injury, can have the case tried jointly with the defendants having the burden of proof of their percentage of contribution to the injury.
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While “indivisible injury” is not specifically formally defined, the rule in Texas was that there could be no joint liability where two or more persons caused an indivisible injury unless there was concert of action or unity of design. Burns v. Lamb 312 S.W.2d 730, 731 (Tex.Civ.App.1958) citing to Sun Oil Co. v. Robicheaux, Tex.Com.App., 23 S.W.2d 713. But that case was expressly overruled by the Supreme Court in Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 254. There it was said: ‘Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit. Id. Causes of an occurrence can be concurrent when they act contemporaneously to produce a given result. Rodriguez v. Moerbe, 963 S.W.2d 808 , 819 (Tex.App.-San Antonio 1998, pet. denied). A “new and independent cause” is an act or omission of separate and independent agency that destroys causal connection between negligent act or omission of defendant and injury complained of, and thereby becomes immediate cause of such injury. Id at 810. Nevertheless, where the tortious acts of two or more wrongdoers join to produce an indivisible injury all wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed against any one separately or against all in one suit. Landers v East Texas Salt Water Disposal Co. 151 Tex 251, 251(1952).
The Rules of Civil Procedure bestow upon trial courts broad discretion in the matter of consolidation and severance of causes, and the trial court's action in such procedural matters will not be disturbed on appeal except for abuse of discretion. Womack v. Berry 156 Tex. 44, 50 (Tex. 1956). Severance of claims under the Texas Rules of Civil Procedure rests within the sound discretion of the trial court. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990). The three part test employed by Texas trial courts in determining whether to grant a severance are whether: (1) controversy involves more than one cause of action; (2) severed claim is one that could be asserted independently in separate lawsuit; and (3) severed actions are not so interwoven with other claims that they involve same facts and issues Hamilton v. Hamilton, 154 Tex. 511, 514 (1955); see also Tex.R. Civ. P. 41. The controlling reasons for a severance are to do justice, avoid prejudice, and further convenience. Liberty Nat. Fire Ins. Co. v. Akin , 927 S.W.2d 627,629 (Tex.1996). For example, in In re Martin, 147 S.W.3d 453 (Tex. App. Beaumont 2004), leave of court, for swimming pool owners to file third-party petition against a three-year-old child's uncle, who allegedly had been responsible for supervising the child when child wandered away, fell into pool, and drowned, was warranted, in the mother's tort action against pool owners. The Court noted that considerations of efficiency and consistency suggested liability of all responsible parties should be determined in one lawsuit with one jury considering appropriate percentage of responsibility for each party's conduct, and it did not appear the third-party petition would cause unreasonable delay or expense. Vernon's Ann.Texas Rules Civ.Proc., Rules 37, 38. In re Martin, 147 S.W.3d 453 (Tex. App. Beaumont 2004), petition stricken, (July 2, 2004) and review denied, (Sept. 10, 2004).Finally, Severance is proper only where the suit involves two or more separate and distinct causes of action and each cause into which action is severed must be such that it might properly be tried and determined as if it were only claim in controversy. Kansas University Endowment Ass'n v. King, 350 S.W.2d 11 (Tex.1961).
A “new and independent cause” is defined as an act or omission of a separate and independent agency that destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes the immediate cause of such injury. Young v. Massey, 128 Tex. 638, at 639 (1937). For example, in Rodriguez v. Moerbe 963 S.W.2d 808, (Tex.App.1998), the Court looked at the injury and found that because the injury was contemporaneous, the cases were to be tried together. The Rodriguez court noted that “new and independent cause and superseding cause are sometimes used interchangeably. Fort Worth & D.C. Ry. Co. v. Westrup, 285 S.W. 1053, 1054 (Tex.Comm.App.1926). In Rodriguez v. Moerbe 963 S.W.2d 808, (Tex.App.1998), the court referred to six criteria it deemed useful in determining whether an act is a concurring or a new and independent cause. The court noted “the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence”. Id at 820, the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operations, Id at 820. the fact that the intervening force is operating independently of any situation created by the actor's negligence, Id at 820. Or, on the other hand, it is or is not a normal result of such a situation; Id. at 820. The fact that the operation of the intervening force is due to a third person's act or to his failure to act; Id. at 820. The fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him Id. at 820. Finally, the court added, the degree of culpability of a wrongful act of a third person which sets the intervening force in motion. Id. at 820.
In Phillips v. Gulf & South Am. S.S. Co. 323 S.W.2d 631 (Tex.Civ.App.1959), the Appellant contended that the separate injuries to his back sustained as the result of the separate acts of negligence by the separate defendants on separate occasions caused one indivisible injury. The court stated: “that where longshoreman testified that when he got hurt second time, it bothered him worse, and that after second injury he did not work for about two and one half months, longshoreman could not obtain joint and several judgment.” Id at 631.“His contention that he is entitled to recover his full damages from both of these appellees jointly and severally is based upon the premise that he sustained an injury on each occasion to his lower back and as a result, he argues, his damages are indivisible”. Id at 635. “Though it is true that the separate acts of offending parties need not occur simultaneously, we believe that it must be shown that they joined together to produce one and the same injury.” Id at 635. “In this case it is indisputable by appellant's own testimony that he suffered an injury to his lower back on January 14, 1957, which resulted in a disability that continued until the time of his second injury”. Id at 635. “Certainly it must be conceded by appellant that for at least several months before August 1, 1957, his damages both past and future resulting from his first injury were subject to determination with reasonable certainty”. Id at 635. “For these damages he was entitled to seek a recovery against the appellee Creole alone”. Id at 635. “ Moreover, his right to a recovery for those damages from Creole, conditioned upon proof of its liability, was not altered by the accident of August 1, 1957”. Id at 635. “Until that time no cause of action whatever existed against appellee Gulf .” Id at 635. “However, on that date, appellant, while working on board a ship operated by Gulf, sustained another separate and distinct injury.” Id at 635. “It too was to his lower back”. Id at 635. “Appellee Creole was guilty of no act or omission which joined with any act or omission of Gulf to produce the injury of August 1, 1957”. Id at 635.
The Court concluded: “It is clear that if appellant establishes Gulf's liability for the second injury and it is shown that he was still suffering from the injury of January 14, 1957, when he was injured on August 1, 1957, his damages would not only encompass his diminished capacity to labor and earn money and his physical pain and mental suffering occasioned by that injury from the date of the second injury and in the future, which were proximately caused by Gulf's negligence on August 1, 1957, but also for any aggravation of his prior injury of January 14, 1957, which was proximately caused by Gulf's negligence on August 1, 1957.” Id at 636. “This latter element of damage is recognized by the authorities. Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92; Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683; and Western Guaranty Loan Co. v. Dean, Tex.Civ.App., 309 S.W.2d 857. The proper method of submitting such issues to the jury is set forth in Dallas Ry. & Terminal Co. v. Ector, supra.” Id at 636. In our opinion there is no basis in law under the allegations contained in appellant's petition and the undisputed facts adduced upon the hearing of the motion to sever which would entitle appellant to obtain a joint and several judgment against each of these appellees for both injuries he may have received on the two separate occasions in question.” Id at 636.
CONCLUSION
If there is a significant amount of time between injuries as presented in Phillips, then there may very well be a severance. However, if there is a smaller amount of time, then the three part test presented in Womack will apply. The true test, however, is not time but opportunity for observation and diagnosis between events. As in Borel in which the plaintiff experienced years between injuries to his body, the test is whether there was opportunity to distinguish the insults to his body so that independent findings could be made as to causation. Although the test in separate car wrecks translates, as a practical matter, to time, the argument should be couched in terms of opportunity for medical diagnosis between incidents. Certainly, if there is not a significant amount of time between the accidents, and the back injury falls within the defined parameters of “individual injury” as noted above, there will most likely be a joint trial.
The joint trial avoids defense arguments in separate trials that the other accident is the true cause of the disability and treatment for similar injuries. Of course a lucky or skilled plaintiff’s attorney can argue aggravation in the second trial and possibly pull out a larger outcome than expected.
