Werner Gets ‘En Banc’ Review of $89.7 Million Verdict

After a nearly three-year delay, a Texas appellate court has voted for all of its nine justices to take over an appeal of an $89.7 million lower court jury verdict against Werner Enterprises in a 2014 fatal accident that the motor carrier has steadfastly maintained was not its driver’s fault.

An appeal of that lower court ruling has already been heard by a three-judge panel of the Texas Fourteenth Court of Appeals in Houston. However, resolution was stalled after a judge on the panel retired before a decision was issued.

“Upon its own motion, a majority of this court orders en banc consideration of this case,” said a July 27 filing made after the nine justices took a vote. En banc cases are those that will be heard and decided by all nine of the court’s justices.

It was in 2018 that a Houston jury returned the huge verdict — one of the highest ever against a motor carrier — in connection with the 2014 crash. In it, a pickup truck driven by a friend of the plaintiff lost control on a slick interstate, traveled across the highway median and collided with a Werner tractor traveling on the opposite stretch of road. A jury awarded the plaintiff the $89.7 million verdict, but Werner appealed that decision in October 2018.

As the parties in the case awaited a decision, the court’s clerk sent a letter in January 2021 to the parties saying that “one or more” of the justices who heard the arguments had retired from the court before a panel decision could be made.

Now the entire court will hear the case; however, a timeline has not been disclosed.

Werner’s attorneys wrote in a court pleading: “At the time of this accident, [driver] Shiraz Ali was proceeding in his lane, in control of a Werner tractor-trailer and well below the speed limit, when the [plaintiff’s] vehicle suddenly careened into his path, leaving him no time to avoid a collision.”

The plaintiff’s attorney in the case, Eric Penn, told the jury that the driver was inexperienced, driving too fast, and should not even have been driving during the icy conditions. He also charged that Werner was negligent for failing to adequately train and supervise the driver for operating in bad weather.

Werner has denied those allegations and is asking the appellate court to “reverse the trial court’s judgment and render judgment in their favor or, at a minimum, remand this matter for a new trial.”

It’s unclear why the three-judge panel did not act more swiftly to render a decision.

In a dissenting opinion on the vote to hear the case en banc, Chief Justice of the court Tracy Christopher questioned why the three-judge panel was not permitted to issue its decision, which was circulated among the justices in anticipation of a panel ruling.

“There is no other appeal pending before this court with similar issues, nor are there any identified conflicts in our precedents,” Christopher wrote. “Simply put, in the 11 years that I have been on this court, there have been no grants of en banc consideration in a situation such as this.” Christopher added, “The panel majority opinion has been silenced — not to see the light of day.”

“There is simply no reason for this court to send the parties directly to en banc, not pass go, and not collect $200,” wrote Justice Randy Wilson in a 32-page dissenting opinion on the vote. “Research indicates that in the history of Texas jurisprudence an intermediate court of appeals with more than three justices has ordered en banc consideration of a case in the first instance only about a dozen times. The en banc court should explain why it has taken this highly unusual action.”

Justice Meagan Hassan, who voted in favor for en banc consideration of the case, said that proposed opinion of the three-judge panel “attempted to overhaul this court’s well-established standard of review concerning directed verdicts.” She added, “A majority of this en banc court has voted to examine this appeal and has decided that no additional briefing is necessary to do so.”

“It sounds like the full appellate court is going to decide the current appeal, and we continue to wait for that ruling,” said a Werner spokesman.