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Bryan v. Zenith Ins. Co.
June 7, 2001
Unpublished Opinion

Bryan v. Zenith Ins. Co.

Court of Appeals of Texas, Austin.

Mary A. BRYAN, Individually and as next friend of Stacey Arlene Bryan and Jay Russell Bryan, Minors, Appellants.



No. 03-00-00573-CV.


June 7, 2001.

From the District Court of Travis County, 53rd Judicial District No. 99-02417; Orlinda Naranjo, Judge Presiding.

Before POWERS,* JJ.



*1 Appellants Mary A. Bryan and her children, Stacey Arlene Bryan and Jay Russell Bryan, (together “the Bryans”) applied for survivors’ benefits through the Texas Workers’ Compensation Commission (“TWCC”) after James Bryan, Mary’s husband, suffered a fatal heart attack while working for Colcom, Inc. (“Colcom”). After the TWCC denied benefits, the Bryans filed suit in district court against appellee Zenith Insurance Company (“Zenith”), Colcom’s workers’ compensation insurance carrier. The district court rendered judgment in favor of Zenith that the Bryans take nothing by their suit. The Bryans appeal the judgment, claiming that (1) the district court erred in excluding certain evidence at trial and (2) the judgment was against the great weight and preponderance of the evidence. We will affirm the district court’s judgment.


At the time of his heart attack, James Bryan (“Bryan”) worked as a cable locator for Colcom. His job was to inspect sites for buried cable lines. He would then use spray paint or chalk to mark on the ground the location of any lines that might be subject to damage by construction on the site. To protect against liability for damaged lines, Colcom employees were instructed to record on video the markings they had made. On December 5, 1996, Bryan went to the Ritchie construction site (“Ritchie site”) and inspected it for lines. At the site, he located lines that could be damaged by construction and marked them. While driving to his next inspection site, Bryan suffered a fatal heart attack.

After Bryan’s death, a Colcom employee collected the company equipment that was in Bryan’s vehicle. Included were two videotapes, one of which was found in the camera assigned to Bryan. The tapes were delivered to Johnny Robinson, Colcom’s general manager. After review, Robinson determined that the tape in the camera contained recordings of work Bryan had performed before the day of his heart attack, and the other tape contained recordings of Bryan’s work performed the previous September.

Lanell Kipp, a dispatcher at Colcom, testified that a few days after Bryan’s death she was working at her desk when she heard “very heavy breathing” coming from Robinson’s office, which was next door. She entered the office and saw LaShawna McCoy watching a videotape, which McCoy identified as Bryan’s “last tape.” Approximately a year later, the Bryans learned through other Colcom employees of the tape McCoy and Kipp viewed. They then filed their benefits claim with the TWCC and requested a copy of the videotape from Colcom. Colcom responded by informing the Bryans that Colcom would provide them with the tape only when ordered by subpoena. After filing this suit, the Bryans subpoenaed the videotape, and Colcom copied the tape taken from Bryan’s car and provided the copy to the Bryans. The Bryans contend that the copy given to them was either edited or was the incorrect tape because it did not include the heavy breathing described by Kipp. Zenith claimed that the tape given to the Bryans was “a true copy of the tape” found in the camera in Bryan’s truck.

*2 The Bryans filed a claim with the TWCC seeking survivor’s benefits, arguing that Bryan’s heart attack was a compensable injury under id. § 408.008. The Bryans then requested a contested case hearing. See id. § 410.151 (permitting decision of benefit review officer to be reviewed by contested case hearing officer). Their claim was again denied, and they appealed to an appeals panel. See id. §§ 410.169-.203 (allowing claimant to appeal decision of contested case hearing to panel of three hearing officers). The appeals panel remanded the case, finding that there was an abuse of discretion by the contested case hearing officer in denying a motion for continuance to allow time for proper discovery. On remand, the contested case hearing officer again found that Bryan’s heart attack was not a compensable injury. The Bryans again appealed, but this time the appeals panel affirmed the decision. The Bryans then brought this suit for judicial review in the district court. See id. § 410.251 (allowing aggrieved claimant to seek judicial review of final decision of appeals panel).

The Bryans sought to introduce Kipp’s testimony regarding the videotape allegedly made by Bryan on the day of his death and argue that the actual videotape had been destroyed because it was never produced by Colcom or Zenith. In a pretrial hearing, Zenith moved that Kipp’s testimony concerning the videotape, as well as evidence of the spoliation of the videotape, be excluded from trial, and the motion was granted. The district court rendered judgment for Zenith, finding that Bryan’s heart attack was not compensable under the labor code. The Bryans appeal by three issues.


Exclusion of Evidence

By their first two issues, the Bryans argue that exclusion of Kipp’s testimony and evidence of the spoliation of the videotape made by Bryan constitute harmful error.1 The exclusion of evidence is left to the sound discretion of the trial court; therefore, the trial court’s decision to exclude such evidence is reviewed under an abuse-of-discretion standard. Porter v. Nemir, 900 S.W .2d 376, 381 (Tex.App.-Austin 1995, no writ).

A. Kipp’s testimony

*3 The Bryans first assert that the district court erred in excluding Kipp’s testimony. In a deposition, Kipp stated that a few days after Bryan’s heart attack she heard heavy breathing on a videotape being played by McCoy, another Colcom employee. The Bryans sought to introduce Kipp’s testimony of Bryan’s heavy breathing on the tape as evidence that his physical exertion on the Ritchie site was a substantial cause of his heart attack.

However, Kipp admitted that she did not know the day on which the tape was made. Furthermore, no person testified to the existence of a December 5, 1996 tape. In fact, McCoy testified that she later matched Bryan’s work records with the videotape from Bryan’s camera and determined that the recordings were from days prior to the day of Bryan’s death. Thus, the district court could have reasonably determined that Kipp’s testimony concerning whether the tape was in fact Bryan’s last tape could have confused the trier of fact, misleading it to believe that the “last tape” referred to by Kipp was made on the day of Bryan’s death when in fact the evidence indicates otherwise.

In addition, although Kipp stated that there was heavy breathing on the tape, McCoy, who viewed locator tapes regularly, concluded that the breathing was “no more labored than all the other tapes” that she watched of other locators videotaping their work. Two other Colcom employees likewise testified that the breathing on the tape was not abnormal. We therefore hold that the district court did not abuse her discretion in determining that the danger of unfair prejudice substantially outweighed the probative value of the testimony of Kipp. See Tex.R.Evid. 403.

B. Spoliation of the Evidence

The Bryans also contend that the district court erred in excluding evidence of the spoliation of a videotape made by Bryan before his death. Spoliation is the improper destruction of evidence. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.App.-Eastland 2000, pet. denied).2

*4 Zenith, on the other hand, has provided a reasonable explanation for why the employees at Colcom might have mistakenly believed that a December 5 videotape by Bryan existed. A videotape was removed from the camera in Bryan’s truck after his death, and one could reasonably assume that it may have contained a recording of Bryan’s work from that day. The Ritchie site was indeed marked, and Colcom policy requires cable locators to videotape their markings. However, after matching the work records with the tape, Colcom concluded that the tape was actually a recording of work done on prior days and that Bryan had not recorded his work on the day of his heart attack.

Allegations that a party destroyed evidence can have a negative and highly prejudicial affect on that party in the course of the trial. Lively, No. 12-00-00004-CV, slip op. at 14. Where the basis for an accusation of spoliation is supported by evidence in the record, the trial court may use its discretion to determine whether or not a presumption of spoliation is justified. See Tex.R.Evid. 403. We therefore conclude that the district court did not abuse her discretion in excluding evidence of spoliation. The Bryans’ second issue is overruled.

Sufficiency of the Evidence

By their third issue, the Bryans argue that the judgment of the district court that Bryan’s heart attack is not a compensable injury under Tex.Lab.Code Ann. § 410.303.

When reviewing the factual sufficiency of the evidence to support a finding on which the appellant had the burden of proof at trial, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Schneider v. Schneider, 5 S.W.3d 925, 931 (Tex.App.-Austin 1999, no pet.).

*5 After reviewing the record, we hold that there was sufficient evidence to support the district court’s finding that Bryan’s Pacific Employers Ins. Co. v. Solomon, 488 S.W.2d 189, 191 (Tex.Civ.App.-Texarkana 1972, writ ref’d n.r.e.).

In order for the Tex.Lab.Code Ann. § 408.008. It is undisputed that Bryan was engaged in locating cables on the Ritchie site on the morning of his death. Another Colcom cable locator testified that the site had a number of cable conflicts that Bryan marked, from which it can be inferred that he did a significant amount of walking on the property. However, the Bryans had no further evidence to prove that he was indeed over-exerting himself or was under strain while performing the cable locations.

Medical experts testifying for the Bryans and Zenith disagreed as to whether the PGP Gas Prods. Inc., 667 S.W.2d at 608.

After a thorough review of the record, we determine that the district court could have reasonably concluded that there was not sufficient evidence to prove that Bryan’s employment caused the heart attack. See Monks v. Universal Underwriters Ins. Co., 425 S.W.2d 431, 434 (Tex.Civ.App.-Tyler 1968, writ ref’d n.r.e.). The Bryans’ third issue is therefore overruled.


*6 Having overruled all of the Bryans’ issues, we affirm the judgment of the district court.



Before Tex.Gov’t Code Ann. § 74.003(b) (West 1998).


Zenith argues that the Bryans waived the asserted error because they did not make timely offers of proof. We will assume that the Bryans did not waive such error and consider the Bryans’ argument.


We do not address whether spoliation of evidence by Colcom, if proved, could properly be introduced against Zenith in support of the Bryans’ worker’s compensation claim.

End of Document