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Omega Contracting9/29/2005
I. Introduction
This case presents several issues arising from a wreck involving four tractor-trailer rigs. We affirm in part and reverse in part and remand for new trial.
II. Factual and Procedural Background
In the early twilight hours of April 17, 2001, four 18-wheeler gravel trucks converged on a two lane, undivided stretch of Highway 380 in Wise County. Driving three westbound rigs were Fabian Cardenas, an employee of Omega Contracting, Inc., followed by Michael Ray, who was in turn followed by Jason McBride. Driving eastbound was Juan Torres.
As the trucks converged, two wheels separated from Cardenas's tractor, the lead westbound rig. The wheels, which weighed 150-200 pounds each, rolled across the center line into the eastbound lane and struck Torres's rig. Torres's truck veered left across the center line into the westbound lane, where it sideswiped Ray's truck. Ray's truck toppled over on its side and exploded in what one witness described as a 20 foot high ball of fire. Torres's truck then caromed back toward the eastbound lane. At the same instant, McBride drove his rig from the westbound lane toward the center line and the eastbound lane in an apparent attempt to avoid the collision between Torres and Ray. McBride and Torres collided head-on in the eastbound lane. Both rigs exploded in flames. Torres shot through the windshield of his truck, flew 65 feet through the air, and hit the pavement. He suffered massive injuries but lived. McBride was killed.
A few weeks before the accident, Omega had purchased Cardenas's truck from Porter Truck Sales, Inc. Porter hired M.C. Williams d/b/a M.C. Williams Tire Service to install new tires on the truck before it was delivered to Omega. Michael Paige, an M.C. Williams employee, actually installed the tires and reattached the wheels to the truck. At trial, several experts testified that the wheels fell off because the lug nuts were not securely tightened when the wheels were installed.
McBride's estate, wife, child, and parents ("the McBride plaintiffs") sued Cardenas, Omega, and Torres, among others, for negligence and gross negligence. Cardenas and Omega filed third party contribution claims against Porter and Williams. Torres asserted counter and cross-claims for negligence and gross negligence against McBride, Cardenas, Omega, and Porter and asserted a third-party claim against Dowdy-Ferry Sand and Gravel Company. Torres alleged that Dowdy-Ferry was vicariously liable for Cardenas's negligence under a "pass through arrangement" between Omega and Dowdy-Ferry. We will discuss the details of the pass through arrangement later in this opinion.
The McBride plaintiffs settled their claims against Cardenas and Omega before trial. M.C. Williams filed for bankruptcy before trial, and the trial court severed the claims against him from the others. The trial court granted summary judgment in favor of Dowdy-Ferry on Torres's vicarious liability claims. The remaining claims and cross-claims were tried to a jury.
The jury found that the negligence of Torres, Porter, Cardenas, and Omega, among others, proximately caused McBride's death. The jury also found that the negligence of Porter, Cardenas, Omega, and Torres himself proximately caused Torres's injuries and assigned 5% responsibility to Porter, 30% to Cardenas, 40% to Omega, and 25% to Torres. The jury awarded a total of $6,105,000 to the McBride plaintiffs and $475,225.56 to Torres. The trial court signed a judgment comporting with the verdict.
Omega and Cardenas appeal from the judgment in favor of Torres. Torres appeals from the now-final summary judgment in favor of Dowdy-Ferry. Omega and
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