IN THE
TENTH COURT OF APPEALS
No. 10-16-00112-CV
IN RE VOLVO GROUP NORTH AMERICA, LLC
Original Proceeding
MEMORANDUM OPINION
Volvo Group North America, LLC filed a petition for writ of mandamus
requesting this Court to compel Honorable William Bosworth, Jr., the judge of the 413th
District Court of Johnson County, to vacate the Order Granting Plaintiff’s Motion to
Strike Designation of YRC Freight, Inc. as a Responsible Third Party. We conditionally
grant the writ.
Standard of Review
A writ of mandamus properly issues when the relator demonstrates that the trial
court abused its discretion and there is no adequate remedy by appeal. In re Gulf
Exploration, LLC, 289 S.W.3d 836, 842 (Tex.2009). A trial court abuses its discretion if it
reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial
error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital
Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005); Walker v. Packer, 827 S.W.2d 833, 839
(Tex.1992).
Background Facts
This cases arises from the death of Victor Saul, a professional truck driver
employed by YRC Freight. On May 29, 2013, Scott Dunn was driving southbound on I-
35 when he fell asleep and his vehicle struck the guardrail and rolled over into the
median. Saul was driving a tractor trailer manufactured by Volvo as he approached the
accident. Saul swerved his tractor trailer to avoid the guardrail, and he lost control of the
vehicle. The tractor trailer fell twenty feet off an overpass, and Saul died as a result of
the accident.
Saul’s family filed suit against Volvo and Dunn alleging design defect, marketing
defect, negligence, and gross negligence. On August 24, 2015, Volvo filed a motion to
designate YRC Freight as a responsible third party. See TEX. CIV. PRAC & REM. CODE ANN.
§ 33.004 (West 2015). On January 15, 2016, the trial court granted the motion to designate
YRC Freight as a responsible third party. Plaintiffs filed a motion to strike the designation
of YRC Freight as a responsible third party, and on April 4, 2016, the trial court granted
the motion and entered an order that YRC Freight is not a responsible third party. Volvo
filed a petition for writ of mandamus seeking to compel the trial court to vacate the order.
In re Volvo Group North America, LLC Page 2
Discussion
"Responsible third party" means any person who is alleged to have caused or
contributed to causing in any way the harm for which recovery of damages is sought,
whether by negligent act or omission, by any defective or unreasonably dangerous
product, by other conduct or activity that violates an applicable legal standard, or by any
combination of these. TEX. CIV. PRAC & REM. CODE ANN. § 33.011 (6) (West 2015). Section
33.04 of the Civil Practice and Remedies Code states:
After adequate time for discovery, a party may move to strike the
designation of a responsible third party on the ground that there is no
evidence that the designated person is responsible for any portion of the
claimant's alleged injury or damage. The court shall grant the motion to
strike unless a defendant produces sufficient evidence to raise a genuine
issue of fact regarding the designated person's responsibility for the
claimant's injury or damage.
TEX. CIV. PRAC & REM. CODE ANN. § 33.004 (l) (West 2015).
The evidence shows that the tractor trailer driven by Saul was equipped with a
Meritor WABCO anti-lock braking system rather than an available electronic stability
control (ESC) system. In their petition, Plaintiffs allege that if the tractor trailer had been
equipped with an ESC system, there would not have been any loss of control and Saul’s
death would have been avoided. Plaintiffs further allege that Volvo was negligent in
deleting the ESC system from the tractor trailer driven by Saul and in failing to disclose
to YRC Freight the importance of the ESC system or its deletion from the tractor trailer.
In re Volvo Group North America, LLC Page 3
Volvo presented evidence that YRC Freight purchased many heavy Volvo trucks
through an independent dealer in groups or lots. 1 Volvo presented evidence that YRC
provided detailed specifications to the independent dealer for the tractor trailers it plans
to purchase. The independent dealer, Volvo, and YRC review the proposed building
specifications in detail. YRC reviews and approves the specifications before a pilot
vehicle is assembled. Volvo builds a pilot vehicle, which is inspected and approved by
YRC. Volvo then assembles the remainder of the tractor trailers in the group or lot.
The ESC system was not required for heavy trucks at the time of the purchase of
the tractor trailer driven by Saul or at the time of the accident. YRC Freight purchased
the Volvo tractor trailer equipped with an anti-lock braking system rather than the ESC
system. Volvo contends that YRC Freight reviewed and approved the specifications for
the tractor trailer driven by Saul.
The absence of the ESC system is central to Plaintiff’s causes of actions. We find
that Volvo provided sufficient evidence to raise a genuine fact issue regarding YRC’s
responsibility for the absence of the ESC system. The trial court abused its discretion by
striking the designation of YRC Freight as a responsible third party. See In re Brokers
Logistics, Ltd., 320 S.W.3d 402, 408 (Tex. App.–El Paso 2010, no pet.).
1 Plaintiffs contend that the trial court struck the affidavit of the independent dealer and that the affidavit
is not properly before this Court. The trial court’s order indicates that the affidavit “shall not be considered
in determining Volvo Trucks’ Motion for Summary Judgment.” The affidavit was not struck as evidence
in relation the designation of YRC as a responsible third party.
In re Volvo Group North America, LLC Page 4
Inadequate Remedy by Appeal
The adequacy of an appellate remedy must be determined by balancing the
benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d
257, 262 (Tex. 2008); In re Brokers Logistics, Ltd., 320 S.W.3d at 408. The denial of the right
to designate YRC Freight a responsible third party would skew the proceedings,
potentially affect the outcome of the litigation, and compromise the presentation of the
defense in ways unlikely to be apparent in the appellate record. See In re Brokers Logistics,
Ltd., 320 S.W.3d at 408; In re Arthur Andersen, L.L.P., 121 S.W.3d 471, 486 (Tex. App.-
Houston [14th Dist.] 2003, orig. proceeding). Thus, it is possible Volvo would be unable
to obtain relief on direct appeal. Id. The potential waste of resources, when combined
with the possibility that Volvo may not be able to successfully prosecute an appeal,
supports our conclusion that Relators do not have an adequate remedy at law. In re
Brokers Logistics, Ltd., 320 S.W.3d at 409.
Conclusion
We conditionally grant Volvo’s petition for writ of mandamus and direct the trial
court to set aside its April 4, 2016 order granting Plaintiffs’ motion to strike designation
of YRC Freight as a responsible third party and ordering that YRC Freight is not a
responsible third party. The writ will issue only if the trial court fails to do so within 21
days from the date of this opinion.
In re Volvo Group North America, LLC Page 5
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Opinion delivered and filed June 2, 2016
[OT06]
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