Court of Appeals of Texas,

Dallas.

Anthony NOBLE, Appellant,

v.

PAN AM DISTRIBUTING, INC., Appellee.

No. 05-99-00865-CV.

|

Feb. 21, 2002.

Before Justices WHITTINGTON, FARRIS,¹ and ROSENBERG.²

OPINION

Opinion by Justice ROSENBERG.

*1 Anthony Noble sued his former employer, Pan Am Distributing, Inc. (Pan Am), asserting claims of breach of contract to pay medical expenses for injuries sustained on the job and negligence by creating an unsafe work environment.³ After a jury trial, the trial court directed a verdict in Pan Am’s favor on the breach of contract claim, and the jury found in Pan Am’s favor on the negligence claim. Noble challenges these decisions in two issues. Because there is some evidence of a contract and Pan Am’s breach of it, we resolve Noble’s first issue in his favor and reverse the trial court’s judgment and remand the breach of contract claim for new trial. Because Noble did not carry his burden to show that the jury’s answer to the negligence question is against the great weight and preponderance of the evidence, we resolve the second issue against Noble and affirm the trial court’s judgment on the negligence claim.

FACTUAL BACKGROUND

In June 1993, Noble was hired by Pan Am as a truck driver, delivering bundles of shingles. When he was hired, he signed a “Notice to New Employees” stating that Pan Am did not have workers’ compensation insurance coverage “to protect you from damages because of work-related illness or injury.” Noble was injured on the job in August 1993. Pan Am referred him to a doctor and paid his medical bills from August until October. Pan Am terminated Noble in November for failure to take a random drug test. Pan Am received medical bills for Noble after he was terminated but did not pay them.

At trial, Pan Am requested a directed verdict on the claim for breach of contract for the payment of medical expenses on grounds that there was no meeting of the minds, no mutuality, and no consideration. Further, the jury answered “no” on both negligence and proximate cause elements of the question “Was the negligence, if any, of the Defendant a proximate cause of damage, if any, to the Plaintiff on August 17, 1993?” The trial court signed a take nothing judgment in favor of Pan Am. Noble appealed.

BREACH OF CONTRACT

In his first issue, Noble contends the trial court erred in directing a verdict on his breach of contract claim because he established the existence of a contract and breach. Noble argues that he and Pan Am had an implied contract that Pan Am would pay his medical expenses for the on-the-job injury he sustained and that Pan Am breached the contract by refusing to pay his bills after he was terminated. Pan Am contends its policy to pay employees’ medical expenses did not extend beyond termination of employment.

Standard of Review and Applicable Law

In reviewing the granting of a directed verdict, we must determine whether there is any evidence of probative force to raise a fact issue on the material questions presented. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam). We consider all the evidence in a light most favorable to the party against whom the verdict was directed and disregard all contrary evidence and inferences; we give the losing party the benefit of all reasonable inferences created by the evidence. Id. If there is any conflicting evidence of probative value on a theory of recovery, a directed verdict is improper, and the case must be reversed and remanded for jury determination of that issue. Id.

*2 “A binding contract must have an offer and an acceptance, and the offer must be accepted in strict compliance with its terms.” Smith v. Renz, 840 S.W.2d 702, 704 (Tex.App.-Corpus Christi 1992, writ denied). The parties must have a meeting of the minds and must communicate consent to the terms of the agreement. Id. “Consideration is a fundamental element of every valid contract; it can consist of a benefit to the promisor or a loss or detriment to the promisee.” Id. In a contract implied in fact, which is the same as an express contract except for the manner of proof, the element of mutual assent can be inferred from the circumstances of the transaction. Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex.1972). An implied contract arises from the dealings of the parties, from which the facts show that the minds of the parties met on the terms of the contract without any legally expressed agreement thereto. Smith, 840 S.W.2d at 704.

Discussion

Noble contends he established the elements of a contract to pay medical bills of employees when they were injured while employed and Pan Am’s breach of that contract. Pan Am responds that there is no evidence of mutual agreement because there is no evidence that Noble knew of any policy to pay medical expenses for on-the-job injuries and that such benefits would extend beyond termination of employment.

Robert E. Curtis, Pan Am’s vice-president, testified that in 1993 the company decided not to carry workers’ compensation insurance because it was too expensive. Instead, Curtis testified that

We had a self-insured program where we had our basic hospitalization, plus we had sent out the notice to all employees about this and that full salary would be paid if they were injured. That was a 40-hour workweek. We’d pay them for their 40 hours and take care of their medical bills…. To every employee that was injured, we paid all of their medical bills.

To the next question, “And that would be paying 100 percent of the medical bills; is that correct? Curtis responded, “To every employee that was injured, we paid all of their medical bills.” Later, this exchanged occurred:

[Counsel]: Now, this program you had in place that paid medical bills and-and employees salary, was that in writing?

Curtis: No, sir.

[Counsel]: It’s just what you told the employees when they came on board with you?

Curtis: Sure. Yeah. We-in the employment application packet, we had the letter stating that we were nonsubscribers and that we were self-insuring. And we explained all of that to our current people at the time we dropped the comp. program, and then as we hired new people, we informed them also.

Curtis further testified that Pan Am did not stipulate a limit on the amount of medical bills it would pay. Curtis responded affirmatively to the question, “[D]id you take it upon yourself to take care of medical bills if an employee was injured during the job process?”

*3 The record also contains the “NOTICE TO NEW EMPLOYEES” that states that Pan Am did not have workers’ compensation insurance coverage to protect employees from damages because of work-related illness or injury. Noble signed this notice on June 25, 1993. The record also contains an “AUTHORIZATION FOR EXAMINATION OR TREATMENT” authorizing Occupational Health Centers to treat Noble for a work-related injury and to bill Pan Am. Curtis signed this authorization on July 14, 1993. It is undisputed that Pan Am paid Noble’s medical bills due to the on-the-job injury while he was employed.

Noble testified that in October, after his injury and some medical treatment, he returned to light duty. However, he refused to perform some of the work and was told to leave. He then contacted an attorney who wrote a letter to Pan Am. Noble testified that he contacted an attorney because he could not get his bills paid and could not return to work. According to Noble, he asked to have his job back because “I was there because they had told me, you know, they were going to take care of me, and, I mean, that I was expecting that.” Subsequently, he returned to work on November 3 but was terminated on November 12 for failing to take a drug test.

This is evidence raising a fact issue on whether the self-insurance program constituted a contract between Pan Am and its employees to provide salary and medical benefits upon injury, and, further, that the only limitations to one hundred percent coverage of medical bills were whether the individual was an employee at the time of injury and whether the injury occurred during the scope and course of employment. The circumstances of Noble’s injury met both of these conditions. Thus, there is evidence raising an issue that coverage, once established, did not depend upon continued employment.

Further, this is evidence raising a fact issue that Noble, as a new employee, knew that Pan Am carried self-insurance instead of worker’s compensation insurance. Although the notice to new employees does not state specifically that Pan Am had a self-insurance program, Curtis testified that Pan Am explained to current employees at the time Pan Am dropped the workers’ compensation insurance in 1993 “that we were nonsubscribers and that we were self-insuring … and then as we hired new people, we informed them also.” Noble’s testimony raises a fact issue that he knew about the self-insurance program because he expected Pan Am to pay his bills. Thus, we conclude there is some evidence that Noble, as a new employee in 1993, was aware of a policy to pay medical benefits and accepted employment on those terms. Further, Curtis’s testimony that Pan Am notified its employees of its policy to “take care of medical bills” and did not stipulate any limit raises a fact issue on whether Noble was aware that the terms of the 1993 self-insurance policy that applied to current employees also applied to him as a new employee, and that those terms included no limitations on Pan Am’s promise to pay medical expenses, thus extending payments beyond termination. Thus, we conclude this evidence raises a fact issue on mutual assent. Evidence of Noble’s employment after notice of self-insurance raises a fact issue on consideration and mutuality. See E-Z Mart Stores, Inc. v. Hale, 883 S.W.2d 695, 699 (Tex.App.-Texarkana 1994, writ denied); see also Smith, 840 S.W.2d at 704.

*4 Pan Am also argues that Noble’s status as an at-will employee forecloses his contract claim. Pan Am points to the employment application, which states that “employment and compensation can be terminated, with or without cause, and with or without notice, at any time….” However, Noble has presented evidence that he entered into a contract with Pan Am that would provide for payment of medical bills relating to an on-the-job injury that would extend beyond termination of employment.

Because there is some evidence from which a fact finder could conclude that Pan Am had a contract to provide medical benefits to injured employees after termination and breached the contract, a directed verdict on this issue was improper. Therefore, we resolve Noble’s first issue in his favor.

NEGLIGENCE

In his second issue, Noble contends the jury’s answer to the negligence question is against the overwhelming weight of the evidence. Noble argues that Pan Am was negligent because it lacked training and safety programs and this negligence proximately caused Noble’s injury.

Standard of Review and Applicable Law

A party attacking the factual sufficiency of a jury finding on an issue upon which he had the burden of proof must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all of the evidence; we can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001) (per curiam).

The elements of a negligence cause of action are: (1) a legal duty owed by one person to another; (2) breach of that duty; and (3) damages proximately resulting from the breach. Midkiff v. Hines, 866 S.W.2d 328, 331 (Tex.App.-Houston [1st Dist.] 1993, no writ).

Discussion

Noble argues that the evidence shows that Pan Am was negligent because it did not conduct safety meetings, had no safety manual, had no formal safety programs and no posters on proper lifting techniques, did not require back belts, and had no formal lifting training other than on-the-job training by more experienced employees. Curtis testified that Pan Am trained its employees “through the people that were doing the work, through our experienced hands.” Further, Pan Am’s expert testified that training for lifting was “best done through on-the-job training,” that “[t]his was done by the supervisors” and fellow employees at Pan Am, and that posters, safety meetings, and lifting belts were not effective. Considering all the evidence, we conclude the jury’s answer to the negligence question was not so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Therefore, we resolve Noble’s second issue against him.

CONCLUSION

*5 Because of our disposition of Noble’s issues, we (1) reverse the trial court’s judgment on the claim of breach of contract to pay medical expenses and remand that issue to the trial court for new trial, and (2) affirm the trial court’s judgment on the negligence claim.

	Footnotes
1		The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.
2		The Honorable Barbara Rosenberg, Former Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
3		Noble’s claims for wrongful termination, breach of contract for continued employment, discrimination, and retaliation were disposed of by partial summary judgment. Noble does not raise any issue regarding those claims.