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FILED
6/12/2023 10:08 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jenifer Trujillo DEPUTY
CAUSE NO. DC-22-16178
BRENDA MOSIER DUERER § IN THE DISTRICT COURT OF
Plainnffi §
§
V. § DALLAS COUNTY, TEXS
§
MARTY LEE CARTER and ORBITAL §
POWER, INC. §
Defendants. § 160th JUDICIAL DISTRICT
DEFENDANT ORBITAL POWER. INC.’S MOTION TO BIFURCATE
Defendant Orbital Power, Inc. (“Defendant Orbital”) files this Motion to Bifilrcate
(“Motion”) and would show the Court as follows.
INTRODUCTION
Defendant Orbital now moves to bifilrcate Plaintiff Brenda Mosier Duerer’s (“Plaintiff”)
claims against Defendant Orbital into a second phase of the trial. Section 72.052 of the Texas Civil
Practice & Remedies Code affords Defendant Orbital, who is a defendant in a case involving a
commercial motor vehicle accident, the ability to bifiircate the claims against it if it files a motion
to bifiircate within 120 days of answering the lawsuit. Defendant Orbital filed its original answer
on February 21, 2023. This Motion is timely filed. Thus, this Court should grant Defendant
Orbital’s Motion and bifurcate Plaintiffs claims for negligence and vicarious liability against
Defendant Orbital.
STIPULATION
Defendant stipulates to the following:
l. At the time of the accident on October 26, 2022, Defendant Marty Lee Carter was
an employee of Defendant Orbital; and
2. At the time of the accident, Defendant Marty Lee Carter was acting within the
course and scope of his employment with Defendant Orbital.
ARGUMENT AND AUTHORITIES
Bifilrcation of issues or claims is not a new concept when there is the possibility of
prejudice or confusion if all issues are tried to the jury at one time. The purpose of a motion for
separate or bifurcated trials on issues or between the parties is to avoid prejudice and to promote
justice and fiirther convenience of the parties and the court. In re Ethyl Corp., 975 S.W.2d 606,
610 (Tex. 1998); Womack v. Berry, 291 S.W.2d 677, 683 (Tex. 1956). Bifurcation leaves the
lawsuit intact but enables the court to hear and determine one or more issues without trying all
controverted issues at the same hearing. Transportation Ins. v. Mariel, 879 S.W.2d 10, 3O (Tex.
1994); Grocers Sup. v. Cabello, 390 S.W. 3d 707, 726 (Tex. App—Dallas 2012, no pet.).
Bifurcation of issues is permitted by Texas Rule of Civil Procedure 174(b) which authorizes this
Court to bifurcate any issue in this case “in furtherance of convenience” or “to avoid prejudice.”
See In re Koehn, 86 S.W.3d 363, 367 (Tex. App.—Texarkana 2002, orig. proceeding); Ramsay v.
Tex. Trading C0., 254 S.W.3d 620, 626 (Tex. App.—Texarkana 2008, pet. denied). Indeed, Texas
Rule of Civil Procedure 174(b) specifically provides that “[t]he Court in furtherance of
convenience or to avoid prejudice may order a separate trial of any claim, crossclaim,
counterclaim, or third-party claim, or of any separate issue or of any number of claims,
crossclaims, counterclaims, third-party claims, or issues.” TEX. R. CIV. P. 174(b).
The Texas Legislature has recently added another statutory vehicle to permit bifurcation in
the context of certain commercial motor vehicle accident actions. TEX. CIV. PRAC. & REM. CODE
§ 72.052. The statute provides that in a “civil action under this subchapter, on motion by a
defendant, the court shall provide for a bifurcated trial under this section.” Id. (emphasis added).
“Civil action” means an action in which:
(A) a claimant seeks recovery of damages for bodily injury or death caused in an
accident; and
(B) a defendant:
(i) operated a commercial motor vehicle involved in the accident; or
(ii) owned, leased, or otherwise held or exercised legal control over a commercial
motor vehicle or operator of a commercial motor vehicle involved in the accident.
TEX. CIV. PRAC. & REM. CODE § 72.051(2). A “Claimant” is defined as:
a person, including a decedent’s estate, seeking or who has sought recovery of
damages in a civil action. The term includes a plaintiff, counterclaimant, cross-
claimant, third-party plaintiff, and an intervenor. The term does not include a
passenger in a commercial motor vehicle unless the person is an employee of the
owner, lessor, lessee, or operator of the vehicle.
Id. at (3). “Commercial motor vehicle” is defined as:
a motor vehicle being used for commercial purposes in interstate or intrastate
commerce to transport property or passengers, deliver or transport goods, or
provide services. The term does not include a motor vehicle being used at the time
of the accident for personal, family, or household purposes.
Id at (4). In the first phase of the trial, “[t]he trier of fact shall determine liability for and the
amount of compensatory damages...” TEX. CIV. PRAC. & REM. CODE § 72.052(c). Then, in the
second phase of the trial, “[t]he trier of fact shall determine liability for and the amount of
exemplary damages...” Id. at (d). The case, however, only proceeds to the second phase of the
trial if there is a:
finding by the trier of fact in the first phase of a bifurcated trial that an employee
defendant was negligent in operating an employer defendant’s commercial motor
vehicle may serve as a basis for the claimant to proceed in the second phase of the
trial on a claim against the employer defendant, such as negligent entrustment, that
requires a finding by the trier of fact that the employee was negligent in operating
the vehicle as a prerequisite to the employer defendant being found negligent in
relation to the employee defendant’s operation of the vehicle.
TEX. CIV. PRAC. & REM. CODE § 72.051(e).
Plaintiff filed her Petition on November 22, 2022. See Pl.’s Pet., attached as Exhibit A.
Plaintiff is a claimant under the statute as she is seeking alleged damages for bodily injury in a
civil action. Id. at 4. Plaintiff claims that Defendant Carter controlled, utilized, maintained, and
operated a vehicle for Defendant Orbital’s business. Id. at 3. Plaintiff fiirther claims that Defendant
Orbital is vicariously liable for the actions of Defendant Carter because it allegedly failed to use
ordinary care and ensure that Defendant Carter was a safe and competent driver. Id. Plaintiff now
asserts claims for negligence against both Defendants. Id. As such, this is a case that meets the
language of Section 72.052 and allows Defendant Orbital to move for bifurcation.
Based on the language of the statute, courts must allow a party to bifurcate under this statute
if the party files a motion “on or before the later of. .(l) the
. 120th day after the date the defendant
bringing the motion files the defendant’s original answer...” TEX. CIV. PRAC. & REM. CODE §
72.051(b). After Defendants were served, they timely filed their original answers on February 13,
2023, and February 21, 2023. See Orbital Power, Inc.’s Orig. Answer, attached as Exhibit B and
Marty Lee Carter’s Orig. Answer, attached as Exhibit C. Consequently, this Motion is timely filed.
This Court should grant Defendant Orbital’s Motion and bifurcate Plaintiff’ s claims for negligence
and vicarious liability against Defendant Orbital.
PRAYER
Defendant Orbital Power, Inc. prays that this Court grant its Motion to Bifurcate and for
such other and fiirther relief at law and in equity as to which Defendant Orbital may show itself
justly entitled.
Respectfully submitted,
/s/Andrew C. Nelson
Andrew C. Nelson
State Bar No. 24074801
Jared Douthit
State Bar No. 24116299
WRIGHT CLOSE & BARGER, LLP
One Riverway, Suite 2200
Houston, Texas 77056
Telephone: (713) 572-4321
Facsimile: (713) 572-4320
nelson@wrightclosebarger.com
douthit@wrightclosebarger.com
Attorneys for Defendants
Orbital Power, Inc. and Marty Lee Carter
CERTIFICATE OF SERVICE
I hereby certify that on June 12, 2023, a true and correct copy of the above and foregoing
document was served upon all counsel of record in compliance with the Texas Rules of Civil
Procedure.
/s/Andrew C. Nelson
Andrew C. Nelson
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Annie Martin on behalf of Andrew Nelson
Bar No. 24074801
martin@wrightclosebarger.com
Envelope ID: 76503014
Filing Code Description: Motion - Bifurcate
Filing Description:
Status as of 6/12/2023 12:10 PM CST
Associated Case Party: BRENDAMOSIERDUERER
Name BarNumber Email TimestampSubmitted Status
Christopher T.Carver ccarver@danielstarklaw.com 6/12/2023 10:08:57 AM SENT
Brittany Johnson bjohnson@danielstarklaw.com 6/12/2023 10:08:57 AM SENT
Casey Kelly ckelly@danielstarklaw.com 6/12/2023 10:08:57 AM SENT
Katie Moore kmoore@danielstarklaw.com 6/12/2023 10:08:57 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Andrew C.Nelson nelson@wrightclosebarger.com 6/12/2023 10:08:57 AM SENT
Jared Douthit douthit@wrightclosebarger.com 6/12/2023 10:08:57 AM SENT
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FILED 6/12/2023 10:08 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jenifer Trujillo DEPUTY CAUSE NO. DC-22-16178 BRENDA MOSIER DUERER § IN THE DISTRICT COURT OF Plainnffi § § V. § DALLAS COUNTY, TEXS § MARTY LEE CARTER and ORBITAL § POWER, INC. § Defendants. § 160th JUDICIAL DISTRICT DEFENDANT ORBITAL POWER. INC.’S MOTION TO BIFURCATE Defendant Orbital Power, Inc. (“Defendant Orbital”) files this Motion to Bifilrcate (“Motion”) and would show the Court as follows. INTRODUCTION Defendant Orbital now moves to bifilrcate Plaintiff Brenda Mosier Duerer’s (“Plaintiff”) claims against Defendant Orbital into a second phase of the trial. Section 72.052 of the Texas Civil Practice & Remedies Code affords Defendant Orbital, who is a defendant in a case involving a commercial motor vehicle accident, the ability to bifiircate the claims against it if it files a motion to bifiircate within 120 days of answering the lawsuit. Defendant Orbital filed its original answer on February 21, 2023. This Motion is timely filed. Thus, this Court should grant Defendant Orbital’s Motion and bifurcate Plaintiffs claims for negligence and vicarious liability against Defendant Orbital. STIPULATION Defendant stipulates to the following: l. At the time of the accident on October 26, 2022, Defendant Marty Lee Carter was an employee of Defendant Orbital; and 2. At the time of the accident, Defendant Marty Lee Carter was acting within the course and scope of his employment with Defendant Orbital. ARGUMENT AND AUTHORITIES Bifilrcation of issues or claims is not a new concept when there is the possibility of prejudice or confusion if all issues are tried to the jury at one time. The purpose of a motion for separate or bifurcated trials on issues or between the parties is to avoid prejudice and to promote justice and fiirther convenience of the parties and the court. In re Ethyl Corp., 975 S.W.2d 606, 610 (Tex. 1998); Womack v. Berry, 291 S.W.2d 677, 683 (Tex. 1956). Bifurcation leaves the lawsuit intact but enables the court to hear and determine one or more issues without trying all controverted issues at the same hearing. Transportation Ins. v. Mariel, 879 S.W.2d 10, 3O (Tex. 1994); Grocers Sup. v. Cabello, 390 S.W. 3d 707, 726 (Tex. App—Dallas 2012, no pet.). Bifurcation of issues is permitted by Texas Rule of Civil Procedure 174(b) which authorizes this Court to bifurcate any issue in this case “in furtherance of convenience” or “to avoid prejudice.” See In re Koehn, 86 S.W.3d 363, 367 (Tex. App.—Texarkana 2002, orig. proceeding); Ramsay v. Tex. Trading C0., 254 S.W.3d 620, 626 (Tex. App.—Texarkana 2008, pet. denied). Indeed, Texas Rule of Civil Procedure 174(b) specifically provides that “[t]he Court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues.” TEX. R. CIV. P. 174(b). The Texas Legislature has recently added another statutory vehicle to permit bifurcation in the context of certain commercial motor vehicle accident actions. TEX. CIV. PRAC. & REM. CODE § 72.052. The statute provides that in a “civil action under this subchapter, on motion by a defendant, the court shall provide for a bifurcated trial under this section.” Id. (emphasis added). “Civil action” means an action in which: (A) a claimant seeks recovery of damages for bodily injury or death caused in an accident; and (B) a defendant: (i) operated a commercial motor vehicle involved in the accident; or (ii) owned, leased, or otherwise held or exercised legal control over a commercial motor vehicle or operator of a commercial motor vehicle involved in the accident. TEX. CIV. PRAC. & REM. CODE § 72.051(2). A “Claimant” is defined as: a person, including a decedent’s estate, seeking or who has sought recovery of damages in a civil action. The term includes a plaintiff, counterclaimant, cross- claimant, third-party plaintiff, and an intervenor. The term does not include a passenger in a commercial motor vehicle unless the person is an employee of the owner, lessor, lessee, or operator of the vehicle. Id. at (3). “Commercial motor vehicle” is defined as: a motor vehicle being used for commercial purposes in interstate or intrastate commerce to transport property or passengers, deliver or transport goods, or provide services. The term does not include a motor vehicle being used at the time of the accident for personal, family, or household purposes. Id at (4). In the first phase of the trial, “[t]he trier of fact shall determine liability for and the amount of compensatory damages...” TEX. CIV. PRAC. & REM. CODE § 72.052(c). Then, in the second phase of the trial, “[t]he trier of fact shall determine liability for and the amount of exemplary damages...” Id. at (d). The case, however, only proceeds to the second phase of the trial if there is a: finding by the trier of fact in the first phase of a bifurcated trial that an employee defendant was negligent in operating an employer defendant’s commercial motor vehicle may serve as a basis for the claimant to proceed in the second phase of the trial on a claim against the employer defendant, such as negligent entrustment, that requires a finding by the trier of fact that the employee was negligent in operating the vehicle as a prerequisite to the employer defendant being found negligent in relation to the employee defendant’s operation of the vehicle. TEX. CIV. PRAC. & REM. CODE § 72.051(e). Plaintiff filed her Petition on November 22, 2022. See Pl.’s Pet., attached as Exhibit A. Plaintiff is a claimant under the statute as she is seeking alleged damages for bodily injury in a civil action. Id. at 4. Plaintiff claims that Defendant Carter controlled, utilized, maintained, and operated a vehicle for Defendant Orbital’s business. Id. at 3. Plaintiff fiirther claims that Defendant Orbital is vicariously liable for the actions of Defendant Carter because it allegedly failed to use ordinary care and ensure that Defendant Carter was a safe and competent driver. Id. Plaintiff now asserts claims for negligence against both Defendants. Id. As such, this is a case that meets the language of Section 72.052 and allows Defendant Orbital to move for bifurcation. Based on the language of the statute, courts must allow a party to bifurcate under this statute if the party files a motion “on or before the later of. .(l) the . 120th day after the date the defendant bringing the motion files the defendant’s original answer...” TEX. CIV. PRAC. & REM. CODE § 72.051(b). After Defendants were served, they timely filed their original answers on February 13, 2023, and February 21, 2023. See Orbital Power, Inc.’s Orig. Answer, attached as Exhibit B and Marty Lee Carter’s Orig. Answer, attached as Exhibit C. Consequently, this Motion is timely filed. This Court should grant Defendant Orbital’s Motion and bifurcate Plaintiff’ s claims for negligence and vicarious liability against Defendant Orbital. PRAYER Defendant Orbital Power, Inc. prays that this Court grant its Motion to Bifurcate and for such other and fiirther relief at law and in equity as to which Defendant Orbital may show itself justly entitled. Respectfully submitted, /s/Andrew C. Nelson Andrew C. Nelson State Bar No. 24074801 Jared Douthit State Bar No. 24116299 WRIGHT CLOSE & BARGER, LLP One Riverway, Suite 2200 Houston, Texas 77056 Telephone: (713) 572-4321 Facsimile: (713) 572-4320 nelson@wrightclosebarger.com douthit@wrightclosebarger.com Attorneys for Defendants Orbital Power, Inc. and Marty Lee Carter CERTIFICATE OF SERVICE I hereby certify that on June 12, 2023, a true and correct copy of the above and foregoing document was served upon all counsel of record in compliance with the Texas Rules of Civil Procedure. /s/Andrew C. Nelson Andrew C. Nelson Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Annie Martin on behalf of Andrew Nelson Bar No. 24074801 martin@wrightclosebarger.com Envelope ID: 76503014 Filing Code Description: Motion - Bifurcate Filing Description: Status as of 6/12/2023 12:10 PM CST Associated Case Party: BRENDAMOSIERDUERER Name BarNumber Email TimestampSubmitted Status Christopher T.Carver ccarver@danielstarklaw.com 6/12/2023 10:08:57 AM SENT Brittany Johnson bjohnson@danielstarklaw.com 6/12/2023 10:08:57 AM SENT Casey Kelly ckelly@danielstarklaw.com 6/12/2023 10:08:57 AM SENT Katie Moore kmoore@danielstarklaw.com 6/12/2023 10:08:57 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Andrew C.Nelson nelson@wrightclosebarger.com 6/12/2023 10:08:57 AM SENT Jared Douthit douthit@wrightclosebarger.com 6/12/2023 10:08:57 AM SENT