Sprester v. Bartholow Rental Co. et al

Filing 48

REPORT AND RECOMMENDATIONS re 32 Motion to Strike, Motion for Partial Summary Judgment filed by Daniel Sprester. The undersigned Magistrate Judge RECOMMENDS that the District Court DENY Plaintiffs Motion to Strike Defendants Ninth Defense or in the Alternative, Motion for Partial Summary Judgment (Dkt. No. 32). Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DANIEL SPRESTER,

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V.
BARTHOLOW RENTAL CO. and
LAWRENCE SOWARDS.

A-14-CV-00955-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Plaintiff’s Motion to Strike Defendants’ “Ninth Defense” or in the

Alternative, Motion for Partial Summary Judgment (Dkt. No. 32); Defendants’ Response (Dkt. No.
34); and Plaintiff’s Reply (Dkt. No. 37). The undersigned submits this Report and Recommendation
to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of
the Local Court Rules of the United States District Court for the Western District of Texas.
I. Background
This is a diversity case arising from a motor vehicle collision that occurred on October 22,
2012, in Bastrop County, Texas. Plaintiff Daniel Sprester was driving a Ford F150 on State
Highway 130 in the northbound lane following behind a slow moving piece of farm equipment when
he was struck by Lawrence Sowards, who was driving a truck and trailer in the course and scope of
his employment for Bartholow Rental Co. Sprester sued Batholow and Sowards in Travis County
District Court on September 19, 2014, and they removed the case to federal court on October 22,
2014. Plaintiff filed an Amended Complaint on March 2, 2015. (Dkt. No. 10). Defendants filed
their First Amended Answer on March 4, 2015. (Dkt. No. 11).

II. Analysis
On November 19, 2015, Defendants filed a Second Amended Answer to Plaintiff’s Amended
Complaint. In the motion before the Court, Sprester seeks to strike the Ninth Defense pled in that
document, which states:
Plaintiff failed to mitigate damages. Defendants would show that they are not liable
for any condition resulting from the failure, if any, of Plaintiff, to act as a person or
persons of ordinary prudence would have acted under the same or similar
circumstances in caring for and treating Plaintiff’s injuries, if any, that resulted from
the occurrence in question. Plaintiff’s failure to mitigate damages includes, but is not
limited to: his failure to seek healthcare treatment reasonably related to the
occurrence in question under his workers’ compensation claim with Texas Mutual
Insurance Company and failure to enjoy lifetime medical benefits and contractual
insurance company reductions available under that claim (See generally Texas Labor
Code §408.021); his failure to submit the healthcare expenses he claims are
reasonably related to the subject occurrence to a healthcare insurance company and
failure to enjoy contractual insurance company reductions available through
insurance; and, if applicable, failure to have healthcare insurance and failure to enroll
for healthcare insurance as required by law (See Patient Protection and Affordable
Care Act, “PPACA” or “Obamacare,” 26 U.S.C. §5000A).
Dkt. No. 28 at 5. Sprester asks the Court to strike the defense pursuant to Rule 12(f), or in the
alternative to grant partial summary judgment on the defense pursuant to Rule 56. Under Rule
12(f), a district court has the discretion to “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f). Under Rule 56,
summary judgment is proper when “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).
Sprester argues that Defendants’ Ninth Defense, “characterized by Defendants as ‘failure to
mitigate,’ has been expressly rejected by the Fifth Circuit, is without merit as a matter of law, and

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is directly contrary to Texas’ well-settled ‘collateral source rule.’” Dkt. No. 32 at 3. Sprester cites
a number of cases in support of his motion.1
Defendants respond that they should be allowed to present evidence to the jury that Sprester
failed to submit his healthcare expenses to a healthcare insurance company, and failed to contract
for available insurance benefits, specifically those available under the Affordable Care Act.
Additionally, Defendants point out that the cases relied upon by Sprester are not cases in which the
courts struck a pleading or granted summary judgment; but rather, rather all of them concerned the
admissibility of evidence at trial.
A.

Mitigation of Damages Generally

The mitigation of damages doctrine requires an injured party to “exercise reasonable care to
minimize its damages if damages can be avoided with only slight expense and reasonable effort.”
Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 708 (Tex. App. – Fort Worth 2006, pet.
denied). As noted by the Texas Supreme Court, an injured person’s failure to care for and treat his
injuries as a reasonably prudent person would under the same or similar circumstances is admissible
at trial. Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444, 449 (Tex.1967). A portion of
the Ninth Defense states that:
Defendants would show that they are not liable for any condition resulting from the
failure, if any, of Plaintiff, to act as a person or persons of ordinary prudence would

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The cases he cites include: Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011); Guzman
v. Jones, 804 F.3d 707, 711 (5th Cir. 2015); Katy Springs & Mfg., Inc. v. Favalora, 2015 WL
5093232 (Tex .App. – Houston [14th Dist.] Aug. 27, 2015, no. pet. h.); Big Bird Tree Service v.
Gallegos, 365 S.W.3d 173 (Tex. App. – Dallas 2012, pet. denied), Metropolitan Transit Authority
v. McChristian, 449 S.W.3d 846 (Tex. App. – Houston [14th Dist.] 2014, no pet.); Hall v. Birchfield,
718 S.W.2d 313, 338 (Tes. App. – Texarkana, 1986) rev’d on other grounds, 747 S.W.2d 361 (Tex.
1987); City of Fort Worth v. Barlow, 313S.W.2d 906, 911-912 (Tex. Civ. App. – Fort Worth 1958,
writ ref’d n.r.e.).
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have acted under the same or similar circumstances in caring for and treating
Plaintiff’s injuries, if any, that resulted from the occurrence in question.
Under Texas law this portion of the pleading raises a permissible defense, and should not be stricken.
B.

Damages Available in Texas for Medical Expenses

Sprester argues that under Texas law he is entitled to recover medical expenses he “actually
incurred” and that Defendants’ Ninth Defense addressing his failure to obtain insurance coverage
should therefore stricken. While the Court agrees with Plaintiff on his general statement of the law, the
Court disagrees that this necessitates striking Defendants’ Ninth Defense.
Section 41.0105 of the Texas Civil Practices and Remedies Code, provides that, in addition to
any other limitation under law, recovery of medical or health care expenses in a personal injury suit is
limited to the amount actually paid or incurred by or on behalf of the claimant. In Haygood v. De
Escabedo, 356 S.W.3d 390 (Tex. 2011), the Texas Supreme Court stated that Section 41.0105 limits
a plaintiff’s recovery of medical expenses to actual costs paid, not the “list price” posted on a medical
provider’s bills. In other words, only evidence of expenses actually paid or incurred by the claimant
can be presented to a jury.
In Guzman v. Jones, 804 F.3d 707, 711 (5th Cir. 2015), the Fifth Circuit addressed the issue
of whether an uninsured plaintiff who may have been eligible for insurance benefits but did not have
insurance at the time of his injury or treatment is barred from presenting evidence of the list prices
he was charged by the hospital for the services rendered to him, because he would have incurred
lower costs had he obtained insurance. The court found that “reduced prices that he may have
received had he participated in health benefits or insurance programs for which he may have been
eligible are irrelevant according to Texas law.” Id. Thus, the court held that the list prices Guzman
was actually billed—and was obligated to pay—were properly admitted before the jury.
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Defendants’ Ninth Defense seems to suggest that Sprester in fact had workers’ compensation
insurance available to him under his employers’ Texas Mutual Insurance Company policy, and failed
to avail himself of the insurance when he obtained medical care, and also that Sprester failed to
obtain insurance under the Affordable Care Act, all of which would have reduced the costs of his
medical care. While, for the reasons just discussed, evidence of what Sprester’s medical costs would
have been had he obtained or used insurance is inadmissible at trial, that is an evidentiary issue that
the Court need not address at this time, and is better addressed when—and only if—Defendants
actually attempt to offer that evidence.
C. The Collateral Source Rule
Lastly, with regard to that portion of the Ninth Defense contending that Sprester failed to
acquire insurance benefits and failed to submit medical costs to a workers’compensation insurer,
Sprester argues that the defense should be stricken pursuant to Texas’ collateral source rule.
The collateral source rule has applied in Texas since 1883. Under the common law,
a tortfeasor was not entitled to a liability offset for proceeds procured as a result of
the injured party’s independently bargained-for agreement with an insurance
company or other source of benefits. The rule was predicated on the notion that a
tortfeasor should not benefit from an agreement to which the tortfeasor is not privy.
The collateral source rule has been applied to all manner of benefits, including
payments received under a worker's compensation policy, income received as part of
veterans’ benefits, and Social Security disability payments. As a rule of evidence, the
collateral source rule has excluded such things as evidence of payments and
downward adjustments in accordance with Medicare guidelines.
Haygood, 356 S.W.3d at 401 (Lehrmann, J., dissenting) (citations omitted). While Sprester is
correct that evidence of a collateral source would be inadmissible at trial, it has no relevance at this
time to the Ninth Defense. That rule applies to the admissibility of evidence of collateral benefits
a plaintiff actually received, and it appears that everyone agrees that though Sprester perhaps could

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have received collateral benefits, he did not. The collateral source rule says nothing about that
situation (though the Fifth Circuit has said the failure to obtain available insurance does not bar a
plaintiff from seeking the full “list price” for medical services, as just discussed above, see Guzman,
804 F.3d at 711).
III. Conclusion
While several of the issues Sprester brings before the Court appear to raise valid questions
of admissibility of evidence, they do not necessitate striking the Ninth Defense. Questions regarding
the admissibility of evidence should be made by the trial judge once he is informed of the facts and
presented with the evidence, and not as part of a motion to strike a defense.
IV. Recommendation
Based upon the foregoing, the undersigned Magistrate Judge RECOMMENDS that the District
Court DENY Plaintiff’s Motion to Strike Defendants’ “Ninth Defense” or in the Alternative, Motion
for Partial Summary Judgment (Dkt. No. 32)
V. Warnings
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made. The
District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from

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appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report & Recommendation
electronically pursuant to the CM/ECF procedures of this District, the Clerk is directed to mail such
party a copy of this Report and Recommendation by certified mail, return receipt requested.
SIGNED this 18th day of February, 2016.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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