Vargas et al v. Traylor Brothers et al
Filing
89
MEMORANDUM AND ORDER GRANTING 76 MOTION for Partial Summary Judgment.(Signed by Judge Keith P Ellison) Parties notified.(sloewe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GUADALUPE ARENAS VARGAS, et al.,
Plaintiffs,
v.
KIEWIT LOUISIANA CO., et al.,
Defendants.
§
§
§
§
§ CIVIL ACTION NO. H-09-2521
§
§
§
§
MEMORANDUM AND ORDER
Pending before the Court is the Motion for Partial Summary Judgment on Wrongful
Death, Survival, and Punitive Damages Claims (“Motion”) (Doc. No. 76) by Defendant Kiewit
Engineering Company (“KECO” or “Defendant”). After considering the parties’ arguments and
the applicable law, the Court must grant Defendant’s Motion.
I.
BACKGROUND
This case arises from the death of Martin Anastacio Reyes Osuna (“Reyes”). Reyes died
while working on a construction project on the Huey P. Long Bridge in Bridge City, Louisiana.
At the time, Reyes was an employee of JL Steel Reinforcing, LLC (“JL Steel”). Plaintiffs state
that the injuries causing Reyes’ death were sustained while Reyes and other JL Steel employees
were working on a steel rebar cage. The employees climbed to the top of the rebar cage to
release it from a crane that had placed the cage in place on top of the pier. The cage crashed to
the ground, killing Reyes and another JL Steel employee.
The construction project was a joint venture of Kiewit, Massman, and Traylor, along with
a company they had jointly formed for purposes of the bridge project, Kiewit Massman Traylor
Constructors (“KMTC”).
KMTC contracted with the Louisiana Department of Transportation
1
and Development (“LADOTD”) to widen the bridge and subcontracted with JL Steel to perform
a portion of the contract. At the time of his death, Reyes was a citizen of Mexico. He was
temporarily living in Louisiana during the construction project, but Plaintiffs contend that he was
domiciled in Texas.
Plaintiff Guadalupe Arenas Vargas (“Arenas Vargas”) brings suit individually as Reyes’s
wife, as representative of Reyes, and as next friend of Zaid Martin Reyes Arenas (“Reyes
Arenas”), Reyes’s son. Plaintiffs Juana Sylvia Ozuna Garcia (“Ozuna Garcia”) and Martin Reyes
Adame (“Reyes Adame”) bring suit as Reyes’s parents. Plaintiffs are all citizens of Mexico.
Their Amended Complaint alleges that Defendants are liable for Reyes’s death on the basis of
negligence and the doctrine of res ipsa loquitor. Defendants contend that this claim is more
appropriately seen as one for wrongful death and/or survival, and Plaintiff does not dispute this
point. (Resp., Doc. No. 79, ¶¶ 2–3.)
The Court has previously dismissed Plaintiffs’ claims against JL Steel (Doc. No. 19) and
granted summary judgment to Defendants KMTC and the individual joint venturers, Kiewit
Louisiana Co. (“Kiewit”), Massman Construction Co. (“Massman”), and Traylor Bros., Inc.
(“Traylor”) (Doc. No. 71). The Court also denied Defendant Modjeski and Masters, Inc.’s
Motion to Dismiss (Doc. No. 80), and thus Modjeski and Masters and KECO are the only
remaining Defendants. KECO moves for partial summary judgment on Ozuna Garcia and Reyes
Adame’s claim, on the basis that parents do not have standing to sue under Louisiana law if there
is a surviving spouse or child. KECO also states that Plaintiffs’ punitive damages claims are
barred by Louisiana law. Plaintiffs agree that the relief requested is appropriate if the Court
determines that Louisiana law applies to their wrongful survival claims, and request leave to
amend their complaint if the Court so rules. (Resp., Doc. No. 79, ¶¶ 2–3.)
2
II.
LEGAL STANDARD
A. Motion for Summary Judgment
A motion for summary judgment requires the Court to determine whether the moving
party is entitled to judgment as a matter of law based on the evidence thus far presented. Fed. R.
Civ. P. 56(c).
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001) (quotations omitted). A
genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving
party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). The Court views
all evidence in the light most favorable to the non-moving party and draws all reasonable
inferences in that party’s favor. Id.; see also Harvill v. Westward Communications, L.L.C., 433
F.3d 428, 436 (5th Cir. 2005) (court may not make credibility determinations or weigh the
evidence at the summary judgment stage). Hearsay, conclusory allegations, unsubstantiated
assertions, and unsupported speculation are not competent summary judgment evidence. Fed. R.
Civ. P. 56(e)(1); see, e.g., Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); McIntosh v.
Partridge, 540 F.3d 315, 322 (5th Cir. 2008); see also Little v. Liquid Air Corp., 37 F.3d 1069,
1975 (5th Cir. 1994) (noting that a non-movant’s burden is “not satisfied with ‘some
metaphysical doubt as to the material facts’”) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)).
Here, however, where the sole issue involves the Court’s determination of what law
applies, the traditional standard for summary judgment does not apply. See Nunez v. Hunter Fan
Co., 920 F. Supp. 716, 717–18 (S.D. Tex. 1996). Rather, the choice of law determination is a
3
question of law. See Woodfield v. Bowman, 193 F.3d 354, 358 (5th Cir. 1999); Mayo v. Hartford
Life Ins. Co., 220 F. Supp. 2d 714, 730 & n.37 (S.D. Tex. 2002); Duncan v. Cessna Aircraft Co.,
665 S.W.2d 414, 421 (Tex. 1984). “[T]he facts on which choice-of-law depends are properly
determined by the Court after considering the affidavits, depositions, and other matters submitted
by the parties.” Nunez, 920 F. Supp. at 718 (citing Vaz Borralho v. Keydril Co., 696 F.2d 379,
386–87 (5th Cir. 1983), overruled on other grounds by In re Air Crash Disaster Near New
Orleans, La., 821 F.2d 1147 (5th Cir. 1987), vacated on other grounds by Pan Am. World
Airways, Inc. v. Lopez, 490 U.S. 1032 (1989)).
Thus, the Court must disregard Plaintiffs’
arguments urging the Court to deny summary judgment because an issue of material fact exists,
and instead focus on whether the parties have presented sufficient evidence to make the choice of
law determination.
B. Choice of Law1
District courts sitting in diversity apply the choice-of-law rules of the state in which they
sit. Klaxon v. Stentor Elec. Mfg., Inc., 313 U.S. 487, 496 (1941); Mayo v. Hartford Life Ins. Co.,
354 F.3d 400, 403 (5th Cir. 2004); Smith v. EMC Corp., 393 F.3d 590, 597 (5th Cir. 2004).
Under Texas law, when presented with a choice of law question, a court must first determine
whether there is a conflict between the laws of the jurisdictions whose law potentially controls,
and only when such a conflict is present should the Court conduct a choice of law analysis. See
Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex. 1984); Tobin v. AMR Corp., 637 F.
Supp. 2d 406, 412 (N.D. Tex. 2009).
When there is a conflict, Texas courts determine the appropriate choice of law by
determining which state, with respect to the issues, has the most significant relationship to the
1
The Court has previously engaged in the choice of law analysis in its Order granting Defendants’ Motion for
Summary Judgment (Doc. No. 71). The Court largely repeats the same standard here, although addressing the
differences due to the dismissed defendants and the different issues at stake.
4
occurrence and the parties. In doing so, they apply the “most significant relationship” test
provided by the Restatement (Second) of Conflict of Laws (1971) (hereinafter “Restatement”).
Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000); Gutierrez v. Collins, 583 S.W.2d
312, 318 (Tex. 1979). For tort cases, the Restatement instructs courts to consider the following
contacts in determining which state possesses the most significant relationship:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of
business of the parties, and,
(d) the place where the relationship, if any, between the parties is centered.
Restatement § 145. These contacts are to be evaluated according to their relative importance
with respect “to the particular substantive issue to be resolved.” Hughes Wood Products, Inc. v.
Wagner, 18 S.W.3d 202, 205 (Tex. 2000) (citing Restatement § 145(1)) (emphasis in original).
The number of contacts is less important than the qualitative nature of those contacts as affected
by the policy factors of Section 6 of the Restatement. See Gutierrez, 583 S.W.2d at 318–19.
Indeed, Section 6 directs courts to consider the contacts involved in the case in light of the
following general principles:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Restatement § 6.
Additionally, Section 146, governing personal injuries, and section 175, governing
wrongful death, create a presumption that
5
the local law of the state where the injury occurred determines the rights and
liabilities of the parties, unless, with respect to the particular issue, some other
state has a more significant relationship under the principles stated in § 6 to the
occurrence and the parties, in which event the local law of the other state will be
applied.
Restatement §§ 146, 175; see also Enterprise Products Partners, L.P. v. Mitchell, 340 S.W.3d
476, 480 (Tex. App.—Houston [1 Dist.] 2011).
III.
ANALYSIS
In this case, the parties agree that there is a conflict between Louisiana and Texas law as
it relates to this case. Specifically, with respect to Defendant’s Motion, the states’ laws differ
with regard to: 1) when the parents of a deceased individual have standing to bring a survival or
wrongful death action, and 2) whether Plaintiffs may recover punitive damages. With regard to
the former, Louisiana Civil Code Articles 2315.1 and 2315.2 establish a hierarchy of
beneficiaries who can recover damages in a survival action and wrongful death suit, respectively.
Parties who do not qualify under Articles 2315.1 and 2315.2 may not bring claims for wrongful
death under Article 2315, the negligence cause of action. As long as there is a surviving spouse
and/or child, no one else may recover under Louisiana law. La. Civ. Code Ann. art. 2315.1,
2315.2. Texas law provides that other classes of beneficiaries may recover damages. Tex. Civ.
Prac. & Rem. Code Ann. §§ 71.004, 71.021. With respect to the damages that plaintiffs may
recover, Louisiana law does not allow the recovery of punitive damages except as authorized by
statute. Ross v. Conoco, Inc., 828 So.2d 546, 555 (La. 2002). The legislature has authorized
punitive damages for cases involving child pornography, drunk driving, and child molestation.
La. Civ. Code Ann. art. 2315.3, 2315.4, 2315.5. Texas law generally permits punitive damages
in tort cases, subject to a cap of the greater of $200,000 or two times the amount of economic
damages plus an amount equal to noneconomic damages, not to exceed $750,000. Tex. Civ.
6
Prac. & Rem. Code Ann. §41.008(a)–(b).2 Accordingly, the Court must decide which state’s law
to apply. The Court will first analyze the relevant contacts under Restatement § 145 and then
analyze them in light of the general principles outlined in § 6.
A. The Place Where the Injury Occurred
It is undisputed that the injury occurred in Louisiana. Reyes sustained fatal injuries when
he fell from the Huey P. Long Bridge in Bridge City, Louisiana while erecting a rebar cage on
the bridge.
B. The Place Where the Conduct Causing the Injury Occurred
The injuries causing Reyes’ death were sustained in the course of his work as part of a
construction crew on the Huey P. Long Bridge in Louisiana. However, Plaintiffs’ claims not
only encompass negligence at the construction site (Am. Compl., Doc. No. 51, ¶¶ 15(a)–15(h)),
but also negligence in the design of the rebar cage and column guying system. (Id. ¶ 15(i).)
They state that they do not know where this designing took place, as “it is still unclear which
Defendants played what part in the design and engineering of the rebar cage and guying system.”
(Resp., Doc. No. 54, ¶ 14.) Plaintiffs do not allege that any of this design work took place in
Texas, but only that none of the entities responsible for the engineering and design decisions was
located in Louisiana. Of the nine acts and omissions identified by Plaintiffs in their Amended
Complaint, eight discuss negligence occurring on the job site, such as failure to provide training
and failing to ensure that safe work practices were followed, and only one involves the design of
the rebar cage and column guying system. (Am. Compl. ¶ 15.) Even accepting as true Plaintiffs’
2
Additionally, Defendant notes that there is a difference in the states’ applications of contributory negligence—
Texas law contains a total bar to recovery for any plaintiff found to be greater than 50 percent liable, whereas
Louisiana law provides for a simple reduction of the damages award pursuant to the plaintiff’s degree of fault,
regardless of how great that percentage is. However, the Court does not consider this issue in this Order, as the
parties did not fully brief the choice of law analysis with respect to this issue. The Court must consider each issue
separately in determining which law applies. See Hughes Wood Products, Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex.
2000). See also Restatement § 164 (relating to contributory fault).
7
contention that none of the design decisions were made in Louisiana, this factor still weighs in
favor of Louisiana.
C. The Domicile, Residence, Nationality, Place of Incorporation, and Place of
Business of the Parties
Defendant KECO is a Delaware corporation with its principal place of business in
Omaha, Nebraska, and has no agent for service of process in the State of Texas. (Doc. No. 7610.) The only other remaining Defendant, Modjeski and Masters, is domiciled in Pennsylvania
and does not have an office in Texas. (Doc. Nos. 76-11, 76-12.) It does, however, have a
registered office in Louisiana. (Doc. No. 76-12.)
Plaintiffs are citizens of Mexico. Plaintiffs do not dispute that, with the exception of
Reyes, they are also domiciled in and are residents of Mexico. At the time of his death, Reyes
was a resident of Louisiana (Angel Corona Felipe Rodriguez Depo., Doc. No. 76-16, at 54–55;
Resp., Doc. No. 54, ¶ 7.) Plaintiffs contend that he was domiciled in Austin, Texas. (Id.)
“Under Texas law, a “domicile” is defined as (1) an actual residence that is (2) intended
to be a permanent home.” Bain v. Honeywell Int’l, Inc., 257 F. Supp. 2d 872, 876 (E.D. Tex.
2002) (citing Snyder v. Pitts, 241 S.W.2d 136, 139 (Tex. 1951)). “The Texas Supreme Court has
construed “home” as meaning a ‘true fixed and permanent home and principal establishment, and
to which, whenever he is absent, he has the intention of returning.’” Id. (quoting Synder, 150
S.W.2d at 139; Ex Parte Blumer, 27 Tex. 734 (1865)). “There is a presumption of continuing
domicile that applies whenever a person relocates. In order to defeat the presumption and
establish a new domicile (the ‘domicile of choice’), the person must demonstrate both (1)
residence in a new state, and (2) an intention to remain in that state indefinitely.” Acridge v.
Evangelical Lutheran Good Samaritan Soc., 334 F.3d 444, 448 (5th Cir. 2003))
8
Although the Court requested supplemental briefing on the issue of Mr. Reyes’ domicile
(Doc. No. 87), Plaintiffs did submit any additional argument or evidence on this issue. It is
undisputed that Reyes lived in Mexico until he came to the United States in 2005, at age 22.
(Guadalupe Arenas Vargas Depo., Doc. No. 88-1, at 19.) Plaintiffs have presented no evidence
showing that Reyes intended to stay in Texas indefinitely.
They point only to his wife’s
interrogatory answer indicating that his address was in Texas, as well as his employment
application, U.S. government employment forms, and his Mexican ID card with his Austin
address. These documents do not evince a clear intent to remain in Texas.
Reyes’ wife, young child, and family remained in Mexico. Defendant also notes that
Reyes was a Mexican citizen, and there is no evidence he sought to obtain permanent resident
status. While immigration status is not dispositive of domicile intent, it is one factor that may be
considered. Fernandez v. Bustamante, 305 S.W.3d 333, 343 (Tex. App.—Houston [14 Dist.]
2010, no pet.). When domicile is challenged, “the burden rest[s] on [the plaintiff] to show by a
preponderance of the evidence that he was a citizen of that State.”
Preston v. Tenet
Healthsystem Memorial Medical Center, Inc., 485 F.3d 793, 798 (5th Cir. 2007) (quoting Welsh
v. American Sur. Co. of N.Y., 186 F.2d 16, 17 (5th Cir. 1951). Plaintiffs have failed to submit
evidence to meet this burden, and thus have not overcome the presumption of Reyes’ domcile in
Mexico.
Accordingly, under this factor, it would seem that the greatest contacts are with Mexico,
as Plaintiffs are all Mexican nationals and domiciled in Mexico.
Each Plaintiff, with the
exception of Reyes, was a current resident of Mexico as well. However, no party seeks to invoke
the law of Mexico, and thus the Court will not consider it. See Menendez ex rel. Menendez v.
Wal-Mart Stores Inc., No. 1:10-CV-53, 2011 WL 2037006, at *9 (N.D. Ind. Mar. 30, 2011)
9
(applying Texas choice-of-law analysis) (citing Bain, 257 F. Supp. 2d at 878–79; Perkins v.
Dynasty Grp. Auto, No. 08-01-00493-CV, 2003 WL 22810452, at *4 (Tex. App.—El Paso Nov.
25, 2003, no pet.). Louisiana was the place of Reyes’ residence and a place of business for at
least one Defendant. The Defendants’ places of incorporation were in neither state. This factor
weighs in favor of Louisiana.
D. The Location of the Relationship Between the Parties
Plaintiffs state that they have no relationship with the two remaining Defendants. (Resp.,
Doc. No. 54, ¶ 16.) Defendant KECO performed only limited engineering services on the
project, and thus it contends that its only relationship with Plaintiffs is through the work on the
project with Reyes. This indirect relationship, centered on the site of the injury, is one that has
been recognized in other similar cases. See Menendez, 2011 WL 2037006, at *8; Beatty v. Isle of
Capri Casino, Inc., 234 F. Supp. 2d 651, 655–56 (E.D. Tex. 2002).
E. Policy Considerations
As shown above, the Restatement § 145 factors weigh strongly in favor of Louisiana.
The Court will now apply these factors and those outlined in Restatement § 63 to each of the
specific issues raised in Defendant’s Motion.
1. Standing of Reyes’ Parents
The Fifth Circuit has held that the location of injury is an “important factor” in
determining the most appropriate law to apply. Huddy v. Fruehauf Corp.,953 F.2d 955, 957 (5th
Cir. 1992). Indeed, under the Restatement, in tort cases, “the applicable law will usually be the
3
Courts must consider: (a) the needs of the interstate and international systems; (b) the relevant policies of the
forum; (c) the relevant policies of other interested states and the relative interests of those states in the determination
of the particular issue; (d) the protection of justified expectations; (e) the basic policies underlying the particular
field of law; (f) certainty, predictability and uniformity of result; and (g) ease in the determination and application of
the law to be applied. Restatement § 6.
10
local law of the state where the injury occurred.” Restatement § 156(2). Comment e to § 145 of
the Restatement explains:
In the case of personal injuries or of injuries to tangible things, the place where
the injury occurred is a contact that, as to most issues, plays an important role in
the selection of the state of the applicable law (see §§ 146–147). . . . This is so for
the reason among others that persons who cause injury in a state should not
ordinarily escape liabilities imposed by the local law of that state on account of
the injury.
Restatement § 145 cmt. e. “Thus, with respect to tort claims, the Restatement emphasizes, but
does not mandate, the choice of state substantive law with the greatest connection to the injury
plaintiff seeks to remedy.” Jelec USA, Inc. v. Safety Controls, Inc., 498 F. Supp. 2d 945, 952
(S.D. Tex. 2007). Similarly, § 175 provides that “[i]n an action for wrongful death, the local law
of the state where the injury occurred determines the rights and liabilities of the parties unless,
with respect to the particular issue, some other state has a more significant relationship under the
principles stated in § 6 to the occurrence and the parties.” Restatement § 175 (emphasis added).
Plaintiffs note that this issue concerns the recovery of compensatory damages, not
liability, and thus the location of the injury is less significant than it would be in the liability
context. The Texas Supreme Court has stated that, “[c]onsidering the purpose of compensatory
damages, contacts such as the site of the injury or where the tortious behavior occurred, which
are important in determining which state’s laws govern liability, are less important.” Torrington,
46 S.W.3d at 849. However, as the Court found above, Plaintiffs are nationals, citizens, and
residents of Mexico, and thus provide no explanation for why Texas would have a greater
interest in protecting Plaintiffs. (Doc. Nos. 76-13, 76-14.) Additionally, Defendant KECO is a
Delaware corporation with its principal place of business in Omaha, Nebraska, and has no agent
for service of process in the State of Texas. (Doc. No. 76-10.) The only other remaining
Defendant, Modjeski and Masters, is domiciled in Pennsylvania and does not have an office in
11
Texas. (Doc. Nos. 76-11, 76-12.) It does, however, have a registered office in Louisiana. (Doc.
No. 76-12.) Thus, Texas also does not have a great interest in regulating Defendants’ conduct.
The Court finds that Louisiana law must apply to the standing issue.
2. Punitive Damages
The purpose of punitive damages in Texas is “punishment and deterrence.”
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 17 (Tex. 1994). “The legal justification for
punitive damages is similar to that for criminal punishment.” Id. at 16. “In contrast, Louisiana’s
policy in disallowing punitive damages is to protect its domiciliaries from excessive legal
liability.” Arabie v. Citgo Petroleum Corp., --- So. 3d ----, 2012 WL 798758, at *20 (La. 2012).
“Louisiana’s punitive damages law is intended to protect Louisiana tortfeasors.” Id. As noted
above, neither of the remaining Defendants has connections to Texas, so Texas would have
minimal interest in punishing and deterring their conduct. The Defendants allegedly committed
a tort in Louisiana. Thus, the Court finds that Louisiana also has the greatest interest in the
application of punitive damages in this case.
12
IV.
CONCLUSION
For the reasons discussed in this order, Defendant’s Motion for Partial Summary
Judgment on Wrongful Death, Survival, and Punitive Damages Claims (Doc. No. 76) is
GRANTED. The Court holds that Louisiana law applies to Plaintiffs’ claims for wrongful
death, survival, and punitive damages, and dismisses Plaintiffs’ claims for punitive damages and
the claims of Reyes’ parents and the Estate.
The Court allows Plaintiffs leave to amend their
complaint, within 30 days, to assert their negligence claims against Defendants under the
applicable Louisiana statutory provisions.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this the 26th day of March, 2012.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?