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Doctor v. Pardue9/15/2005
ion 84.004, and thus could be held liable only to the extent of any existing insurance coverage applicable to Pardue's alleged acts or omissions. The court overruled the Doctors' objection, and submitted a question about Pardue's volunteer status.
The jury found that Pardue was acting in good faith and in the course and scope of his duties and functions as a volunteer in a charitable organization at the time of the collision, and the trial court, based on this finding, rendered final judgment that the Doctors take nothing from Pardue. There is nothing in the record to indicate why the trial court applied section 84.004(b), immunizing Pardue from liability, instead of applying subsection (c), and limiting Pardue's liability "to the extent of any existing insurance coverage applicable."
The Doctors did not specifically raise this issue in their motion for new trial or in their motion to modify, correct, or reform the judgment. Instead, the Doctors contended that the evidence was factually insufficient to support the jury's finding that Pardue was acting as a volunteer in a charitable organization at the time of the collision and, alternatively, that the jury finding on this issue was immaterial since Wisconsin law, which should have been applied pursuant to the most significant relationship test, did not provide immunity for Pardue. However, in their motion to disregard jury findings and for judgment notwithstanding the verdict, filed after the trial court entered a take-nothing judgment in favor of Pardue, the Doctors argued that the jury's finding that Pardue was acting as a volunteer should be disregarded because the evidence established, as a matter of law, that the Doctors' injuries were caused by Pardue's acts or omissions arising from the operation or use of an airplane.
Here, the record reveals that the Doctors alleged, and presented evidence at trial, that Pardue, in his role as a flight leader and participant in the air show, negligently caused the collision. While EAA and Pardue vigorously disputed liability at trial, the jury apportioned 25% liability to EAA and 25% liability to Pardue, and neither defendant challenges the legal or factual sufficiency of the evidence supporting those negligence findings. The Doctors did assert and did offer testimony concerning the adequacy of the pre-flight briefing provided by Pardue and Pardue's execution of the flight plan and his communication to the other pilots, before and during the run up and during the flight in question. However, Pardue's argument that there was no nexus between his alleged negligent operation or use of an airplane and the Doctors' injuries necessarily fails. The jury found that the negligence of Pardue caused the occurrence in question. Any such negligence in regard to Pardue's pre-flight briefing, execution of the flight plan, and/or communication with other pilots directly concerned his operation and use of his aircraft. More importantly, both Lad and Pardue were piloting their planes at the time of the collision. The bottom line is that the evidence conclusively shows that Lad was injured when, in the course of performing in the air show, his aircraft collided on the runway with an aircraft piloted by Pardue. Thus, the evidence establishes, as a matter of law, that the Doctors' injuries were proximately caused by an act or omission "arising from the operation or use of . . . an airplane." Tex. Civ. Prac. & Rem. Code Ann. ยง 84.004(c). Accordingly, we hold that the trial court erred in not applying section 84.004(c) of the Act, limiting the liability of Pardue to the extent that he possessed any applicable insurance coverage.
Alternatively, Pardue argues that the Doctors waived any error based o
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