TEXAS TRUCKING ACCIDENT RESULTS IN WRONGFUL DEATH

Posted on : May 18, 2016
Texas Truck Accidents

Cause No. C-2010-00107

M=, Individually, and as Next§ Friend ofMM and NMM, minors; W as Next Friend of a minor; and D MM,

Plaintiffs,

vs.

BRAULIO LOPEZ SOTO, MARTINEZ TRUCKING, SAMUEL MARTINEZ, HARDEE LANDRY, INC., and

CHESAPEAKE OPERATING, INC.
IN THE DISTRICT COURT

Defendants § JOHNSON COUNTY, TEXAS

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION
AND REQUEST FOR DISCLOSURE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, .1= ME, individually, as beneficiary/heir, and as next friend of A= ME and NME, minors and beneficiaries/heirs; WM MM, as next friend

of K W=, a minor and beneficiary/heir; and ME, individually and as beneficiary/heir (collectively, the “Plaintiffs”), and files this their Second Amended Original Petition, and for their causes of action would respectfully show the Court as follows:

I. STATEMENT OF THE CASE

1.This is a wrongful death and survival case, arising from the death of M

ME in a motor vehicle accident in Johnson County, Texas on February 29, 2008, involving a
dump truck owned by Defendant Martinez Trucking, operated by Defendant Braulio Lopez Soto,

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 1 of 22

under contract with Defendant Hardee Landry, Inc., and hauling drilling mud from a well operated by Defendant Chesapeake Operating, Inc.

II. DISCOVERY

At present, discovery is governed under a Level 3 tailored Scheduling Order jointly submitted by the parties and approved by the Court’s February 23, 2011 Order Granting Joint Motion for Entry of Scheduling Order. With the joinder of HLI and Chesapeake, however, the Plaintiffs believe that the scheduling order deadlines currently in place should be continued to allow adequate time to conduct discovery with the new parties.

III. PARTIES

Plaintiff JMMbrings this suit individually, as beneficiary and heir, and as
next friend on behalf of A= M•and NME, minor children and beneficiaries and
heirs.

Plaintiff WM= brings this suit as next friend on behalf of KM=WM, a minor child and beneficiary and heir.
Plaintiff KM ME, brings this suit individually and as beneficiary and heir.
Plaintiffs, as statutory beneficiaries and heirs at law, are entitled to bring this
action pursuant to Sections 71.004 and 71.021 of the Texas Civil Practice and Remedies Code. Their names and relationships to MEME, Deceased, are as follows:

NAMERELATIONSHIP TO DECEDENT

Wife of MME and Mother of AM and

NL\4E

Daughter of M=ME Son of MM MU

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 2 of 22

1VIMMother of M=MM

Mother of l’AT=

Daughter of M=

Defendant Braulio Lopez Soto is an individual who has already been served with process in this matter and has appeared by and through his counsel at the law firm of Ekvall & Byrne, L.L.P., 4450 Sigma Road, Suite 100, Dallas, Texas 75244. A settlement has been reached between Plaintiffs and Defendant Braulio Lopez Soto, subject to approval by this Court, which shall result in the dismissal of all claims and requests for relief against Defendant Braulio Lopez Soto alleged herein.

Defendant Martinez Trucking is a Trucking company doing business in Texas, and has already been served with process in this matter and has appeared by and through his counsel at the law firm of Ekvall & Byrne, L.L.P., 4450 Sigma Road, Suite 100, Dallas, Texas 75244. A settlement has been reached between Plaintiffs and Defendant Martinez Trucking, subject to approval by this Court, which shall result in the dismissal of all claims and requests for relief against Defendant Martinez Trucking alleged herein.
Defendant Samuel Martinez is an individual who has already been served with process in this matter and has by and through his counsel at the law firm of Ekvall & Byrne, L.L.P., 4450 Sigma Road, Suite 100, Dallas, Texas 75244. A settlement has been reached between Plaintiffs and Defendant Samuel Martinez, subject to approval by this Court, which shall result in the dismissal of all claims and requests for relief against Defendant Samuel Martinez alleged herein.

Defendant Hardee Landry, Inc. (“HLI”), a Texas corporation whose registered office is located at 3600 W. Hwy. 67, Cleburne, Texas 76033, may be served with process by
serving its registered agent for service of process, Glenn A. Landry, 3600 W. Hwy 67, Cleburne, Texas 76033, Johnson County.

Defendant Chesapeake Operating, Inc. (“Chesapeake”), a foreign corporation organized and existing under the laws of the State of Oklahoma, whose principal office is located at P.O. Box 18496, Oklahoma City, Oklahoma, 73154, is authorized to do business in Texas and may be served with process by serving its registered agent for service of process, CT Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201, Dallas County.

IV. VENUE AND JURISDICTION

Venue is proper in Johnson County, Texas in that the events giving rise to this cause of action and claims in this lawsuit occurred in Johnson County, Texas.
Jurisdiction is proper in that the damages sought well exceed the minimum jurisdictional limits of the Court.

V. FACTS

Defendant Chesapeake engages in exploration and drilling of natural gas. At all times relevant to this suit, Chesapeake operated Mize Lease Well No. 16H (“Well 16H”) near Cleburne, Texas. Chesapeake occupied the site of Well 16H and controlled the premises surrounding the well site. In the natural course of operating Well 16H, Chesapeake generated oil and gas wastes at the well site.

Oil and gas wastes are materials that are “generated in connection with activities associated with the exploration, development, and production of oil or gas or geothermal resources.”1 “The term ‘oil and gas wastes’ includes, but is not limited to, saltwater, other.

1 16 TAC § 3.8(0(26).

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 4 of 22

mineralized water, sludge, spent drilling fluids, cuttings, waste oil, spent completion fluids, and other liquid, semiliquid, or solid waste material.”2

Defendant HLI provides wellsite transportation and logistics services to well operators. At all times relevant to this suit, HLI provided oil and gas waste hauling services to Chesapeake at Well 16H. HLI has a permit (WHP # 3815) from The Railroad Commission of Texas (the “Commission”) to perform these services.

Oil and gas waste haulers must apply for, qualify, and be issued a permit (a “Waste Hauler Permit”) from the Commission as a precondition to transporting oil and gas wastes.3 Vehicles used for transporting these materials must also meet Commission standards. Each vehicle must be designed, operated, and maintained so they will not leak or spill wastes during transportation.4 Each vehicle must also be marked on both sides and the rear with the permitee’s name and Waste Hauler Permit number.5

At all times relevant to this suit, Defendant Martinez Trucking was a commercial trucking company engaged in the transport of oil and gas waste, specifically “drilling mud” — a slippery, soupy liquid byproduct of drilling operations.
At all times relevant to this suit, Defendant Samuel Martinez was the owner and manager of Martinez Trucking.
At all times relevant to this suit, Defendant Braulio Lopez Soto was employed by Martinez Trucking as a drilling mud truck driver.

3 See 16 TAC § 3.8(f)(1) (“A person who transports oil and gas waste for hire by any method other than by pipeline shall not haul or dispose of oil and gas waste off a lease, unit, or other oil or gas property where it is generated unless such transporter has qualified for and been issued an oil and gas waste hauler permit by the commission….”).

4 16 TAC § 3.8(1)(1)(C)(ix).

5 16 TAC § 3.8(1)(1)(C)(ii).

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 5 of 22

Permit.

The Martinez Trucking vehicle involved in the accident at issue in this lawsuit was a 1993 Freightliner Series 60 Dump Truck, license no. 23PMY6 (the “Dump Truck”). The Dump Truck had a truck chassis with an open-top dump bed mounted to the frame. The bed had a hydraulic lift at the front and was hinged to the truck frame at the back. The tailgate was hinged along the top of the dump bed.

The Dump Truck belongs to a class of vehicles customarily used to transport loose construction aggregate, such as gravel, dirt, sand, and stone, for example, but not liquids.

Upon information and belief, the Dump Truck did not meet Commission specifications for hauling oil and gas wastes. The open-top Dump Truck was not designed, operated, and maintained to prevent leakage. Even if Martinez Trucking had applied for a Waste Hauler Permit, the deficiencies with the Dump Truck would have disqualified the company from consideration for a Waste Hauler Permit. At all times relevant to this suit, the Dump Truck was not marked with a Waste Hauler Permit number.

At all times relevant to this suit, HLI employed Martinez Trucking to haul drilling mud from Well 16H and transport it to a waste disposal facility. Martinez Trucking had been generally employed by HLI since October 1, 2007. Under the terms of the employment contract with HLI, Martinez Trucking was required to be on-call during particular hours and available for jobs when dispatched by HLI. Martinez Trucking was paid a standby hourly rate and a higher hourly rate for hauling services. Hauling time was documented by start-and-stop time-stamped “load tickets” signed by the rig supervisor and disposal facility gate attendant.

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 6 of 22

On the night of February 29, 2008, HLI dispatched Mr. Lopez Soto and the Dump Truck to Well 16H to pick up a load of drilling mud. At the well site, Mr. Lopez Soto was under the direction and supervision of HLI.
Upon information and belief, employees of HLI and/or Chesapeake scooped approximately 40 barrels worth of drilling mud into the Dump Truck with a backhoe. Upon information and belief, employees of I-ILI and/or Chesapeake verified and signed the load ticket for this particular haul.

Upon information and belief, at the time Mr. Lopez Soto left Well 16H and continuing until the time of the accident, the Dump Truck was caked in drilling mud on the back, sides, and underneath. The Dump Truck’s tail lights, brake lights, turn signals, plastic reflectors, and DOT conspicuity reflective tape were covered with drilling mud. Furthermore, the tailgate of the drilling mud truck had an insufficient amount of reflective tape to meet the legal DOT conspicuity requirements, and what it did have was worn and peeling.

From Well 16H, Mr. Lopez Soto drove the Dump Truck less than one mile north on County Road 1217, and then turned right (southeast) onto State Highway 171. Mr. Lopez Soto drove approximately 250 meters along State Highway 171, getting up to a maximum speed of 5 mph, before slowing down and stopping at the intersection of County Road 1010 intending to turn left.

The stretch of State Highway 171 between County Road 1217 and County Road 1010 is an unlit, two-lane, undivided roadway.

Mr. Lopez Soto’s destination was actually a drilling mud disposal facility approximately 8 miles northwest on State Highway 171, Kirk Carroll Landfarm.

The most direct route to the disposal facility would have called for Mr. Lopez Soto to turn left (northwest) onto State Highway 171 from County Road 1217 and drive through the town of Godley to the disposal facility, just north of the town. Upon information and belief, Mr. Lopez Soto turned right onto State Highway 171 to get to the closest turnoff onto a northbound county road because it was the practice of the Defendants to drive the Dump Truck along the less-traveled and less-patrolled county roads so as to avoid detection by the Commission and law enforcement.
At approximately 9:31 p.m. on the night of February 29, 2008, MME, on his way home to his wife and children, was also traveling southeast along State Highway 171. As Mr. ME approached the unlit intersection of County Road 1010 he was unable to see the Dump Truck. The Dump Truck’s tail lights, brake lights, turn signals, plastic reflectors, and DOT conspicuity reflective tape were invisible to Mr. MM due to a combination of factors as they were completely covered or obscured by the drilling mud, were not functioning and/or were completely or partially missing.
Without adequate visual warning as to the presence of the stationary Dump Truck in the highway, Mr. N1 drove his pickup truck into the back of the Dump Truck causing his pickup truck to burst into flames.

Mr. ME suffered crushing injuries in the impact. He was unable to escape from the vehicle and was consumed by the flames. Prior to his death, Mr. M.’s entire body was bruised, battered and burned, and he suffered great shock to the entire nervous system. Mr. ME was 26 years of age at the time of his death. He was in good health, with a reasonable life expectancy of 76 years. He was earning $36,400.00 annually, and could reasonably expect annual increases in earnings until retirement.

Mr. MM was married only once, to Plaintiff .1= MB on October 17, 2003. Of the marriage two (2) children were born, Armand NME. Mr. M also had a daughter from a previously relationship, K=WM.

During his lifetime, Mr. MM was industrious and energetic, a good father, husband, and provider. He performed numerous and usual tasks in and about the family residence, and gave advice, counsel, comfort, care, and protection to his wife and family. In all reasonable probability, he would have continued to do so, providing for and supporting his wife for the remainder of her natural life and caring for and supporting his children at least until they attained adulthood, and probably thereafter, as he planned to provide each with all the costs incident to attending college in accordance with their desires and goals in life. At his death, Mr. ME possessed assets from his past earnings, which, in all reasonable probability, he would have continued to accumulate for the remainder of his natural life. At the time of her husband’s death, Plaintiff J= MU was 24 years of age, in good health, with a reasonable life expectancy of 78 years.

As described below, Mr. M.’s injuries and death on February 29, 2008, and the damages suffered by him and the Plaintiffs, were proximately caused by the Defendants’ negligence and gross negligence.

VI. CLAIMS FOR RELIEF

The Plaintiffs bring the following causes of action as to each Defendant: a. Braulio Soto Lopez — negligence (VII); negligence per se (VIII); gross negligence (XVII);

6 A settlement has been reached between Plaintiffs and Defendants Braulio Lopez Soto, Samuel Martinez, and Martinez Trucking, which, subject to approval by this Court, shall result in the dismissal of all causes of action against these Defendants.

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 9 of 22

Samuel Martinez — negligence per se (VIII); vicarious liability for negligence of employee (IX); negligent training (X); negligent entrustment (XI); gross negligence (XVII);

Martinez Trucking — negligence per se (VIII); vicarious liability for negligence of employee (IX); negligent training (X); negligent entrustment (XI); gross negligence (XVII);

HLI — negligence per se (VIII); vicarious liability for negligence of employee (IX); negligent training (X); negligent entrustment (XII); negligent hiring (in the alternative) (XIV); negligent control (in the alternative) (XV); negligence (XIII); gross negligence (XVII); and

Chesapeake — negligence per se (VIII); negligent entrustment (XII);
negligence (XIII); negligent control (XVI); gross negligence (XVII).

VII. NEGLIGENCE OF DEFENDANT BRAULIO LOPEZ SOTO

Plaintiffs adopt and incorporate paragraphs 1-39 above and allege that Defendant Braulio Lopez Soto owed Plaintiffs a duty to maintain and operate the Dump Truck in a reasonable and prudent manner and breached that duty in one or more of the following respects:

In failing to have and/or maintain taillights, turn signal lights, brake lights, plastic reflectors, and DOT conspicuity reflective tape on the Dump Truck that were visible as required by the laws of Texas and of the United States of America;

In operating the Dump Truck without clearing drilling mud from its taillights, turn signal lights, brake lights, plastic reflectors, and DOT conspicuity reflective tape;

In operating and stopping the Dump Truck on the highway in an unsafe manner;

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 10 of 22

In operating an unroadworthy vehicle on a public roadway, in violation of Texas Law;

In operating the open-top Dump Truck without a Texas Railroad Commission-issued Waste Hauler Permit; and

In operating the open-top Dump Truck that was not designed to prevent spillage or seepage of its contents.

Each such acts and omissions, singularly or in combination with others, constituted negligence that proximately caused the collision and the resulting damages suffered by the Plaintiffs.

VIII. NEGLIGENCE PER SE OF ALL DEFENDANTS

Plaintiffs adopt and incorporate paragraphs 1-42 above and allege that Defendants owed Plaintiffs a nondelegable duty to comply with and take precautions required by statute or regulation and breached that duty in one of more of the following respects:

In failing to comply with Tex. Trans. Code § 725.021, which exists to eliminate the risk to the general motoring public posed by the transportation of loose materials by requiring that all commercial motor vehicles transporting loose material be securely covered or completely enclosed and the tailgate to be leak-proof to prevent the loose material from spilling from the vehicle;

In failing to comply with 16 TAC § 3.8, which exists to eliminate the risk of spilling oil and gas wastes by requiring waste generators and transporters to ensure that that all vehicles transporting oil and gas wastes are permitted by the Commission and operated and maintained in such a manner as to prevent spillage, leakage, or other escape of oil and gas wastes during transportation; and

In failing to comply with Tex. Trans. Code § 547.322(d), which exists to eliminate the risk to the general motoring public driving behind another vehicle by requiring that the taillamps of the lead vehicle emit a red light plainly visible at a distance of 1,000 feet from the rear of the vehicle.

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 11 of 22

44.Each such acts and omissions, singularly or in combination with others, constituted negligence per se that proximately caused the collision and the resulting damages suffered by the Plaintiffs.

VICARIOUS LIABILITY OF DEFENDANTS MARTINEZ TRUCKING, SAMUEL MARTINEZ, AND HLI

45. Plaintiffs adopt and incorporate paragraphs 1-42 above and allege that Defendants

Martinez Trucking, Mr. Martinez, and HLI are vicariously liable for the negligent conduct of their employee, Mr. Lopez Soto, which proximately caused the incident made the basis of this lawsuit and the resulting injuries and damages of the Plaintiffs.

46. At all times relevant herein, Mr. Lopez Soto was under the employ of Defendants Martinez Trucking, Mr. Martinez, and HLI and was authorized by these employers to maintain and operate the Dump Truck.

47. At the well site, Mr. Lopez Soto was under the direction and supervision of HLI.

48. At the time of the incident made the basis of this lawsuit, Mr. Lopez Soto was driving the Martinez Trucking-owned Dump Truck in the performance of his job and was acting within the scope and in furtherance of the business operations of Martinez Trucking and HLI.

49. Under the theory of respondeat superior, Defendants Martinez Trucking, Mr. Martinez, and HLI are therefore liable for the injuries and damages suffered by Plaintiffs as a result of the negligence of their employee.

NEGLIGENT TRAINING BY DEFENDANTS MARTINEZ TRUCKING, SAMUEL MARTINEZ, AND HLI

50.Plaintiffs adopt and incorporate paragraphs 1-42 above and allege that Defendants

Martinez Trucking, Mr. Martinez, and HLI owed Plaintiffs a duty to train Mr. Lopez Soto as a

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 12 of 22

reasonably prudent drilling mud hauler would and breached that duty in one or more of the following respects:

In failing to train Mr. Lopez Soto on the proper handling of drilling mud;

In failing to train Mr. Lopez Soto on how to transport drilling mud;

In failing to educate Mr. Lopez Soto on the State and Federal laws relevant to the handling and hauling of drilling mud;

In failing to train Mr. Lopez Soto to maintain the drilling mud truck in a roadworthy condition; and

In training Mr. Lopez Soto to take a route to the disposal facility that created an unreasonable hazard in the roadway.

Each such acts and omissions, singularly or in combination with others, constituted negligent training that proximately caused the collision and the resulting damages suffered by the Plaintiffs.

NEGLIGENT ENTRUSTMENT BY DEFENDANTS MARTINEZ TRUCKING AND SAMUEL MARTINEZ

Plaintiffs adopt and incorporate paragraphs 1-42 above and allege that Defendants Martinez Trucking and Mr. Martinez owed Plaintiffs a duty entrust the Dump Truck and drilling mud to a trained and competent driver and breached that duty in one or more of the following respects:

By entrusting the Dump Truck and drilling mud to Mr. Lopez Soto, who they knew or should have known was not trained to handle and haul drilling mud;

By entrusting Mr. Lopez Soto with handling and hauling drilling mud, who they knew or should have known was operating the open-top Dump Truck that was not designed to prevent spillage or seepage of its contents;

By entrusting the Dump Truck and drilling mud to Mr. Lopez Soto, who they knew or should have known operated the truck in an unroadworthy condition; and

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 13 of 22

By entrusting the Dump Truck to Mr. Lopez Soto, who they knew or should have known drove the truck along a route that required him to stop on an unlit, two-lane, undivided roadway to turn onto a less-traveled and less-patrolled back road in order to avoid detection.

53. Each such acts and omissions, singularly or in combination with others, constituted negligent entrustment that proximately caused the collision and the resulting damages suffered by the Plaintiffs.

XII. NEGLIGENT ENTRUSTMENT BY DEFENDANTS HLI AND CHESAPEAKE

54. Plaintiffs adopt and incorporate paragraphs 1-42 above and allege that Defendants HLI and Chesapeake owed Plaintiffs a duty to entrust the drilling mud from Well 16H to a trained and competent hauler and breached that duty in one or more of the following respects:

By entrusting the drilling mud to Martinez Trucking, who they knew or should have known was not permitted by the Commission to transport oil and gas wastes;

By entrusting the drilling mud to Mr. Lopez Soto and Martinez Trucking, who they knew or should have known was not trained to handle and haul oil and gas wastes;

By loading the drilling mud into the open-top Dump Truck, which they knew or should have known was not designed, maintained, and operated to prevent leakage; and

By loading the drilling mud into the open-top Dump Truck, when they knew or should have known that the Dump Truck’s taillights, turn signal lights, brake lights, plastic reflectors, and DOT conspicuity reflective tape were covered with drilling mud.

55. Each such acts and omissions, singularly or in combination with others, constituted negligent entrustment that proximately caused the collision and the resulting damages suffered by the Plaintiffs.

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 14 of 22

XIII. NEGLIGENCE OF DEFENDANTS HLI AND CHESAPEAKE

56. Plaintiffs adopt and incorporate paragraphs 1-42 above and allege that Defendants HLI and Chesapeake owed Plaintiffs a nondelegable duty as the operator of Well 16H, the occupant of the premises, and/or the carrier of oil and gas wastes to exercise reasonable care to prevent activities and conditions dangerous to those outside the premises and breached that duty in one or more of the following respects:

By loading the Dump Truck with drilling mud and entrusting it to Mr. Lopez Soto, who they knew or should have known was not trained to handle and haul drilling mud;

By loading the Dump Truck with drilling mud and entrusting it to Mr. Lopez Soto, who they knew or should have known was operating a vehicle that was not designed, maintained, and operated to prevent leakage;

By loading the Dump Truck with drilling mud and allowing Mr. Lopez Soto to drive the Dump Truck off the well site when they knew or should have known that the Dump Truck did not have taillights, turn signal lights, brake lights, plastic reflectors, and reflector tape that were visible as required by the laws of Texas and of the United States of America; and

By loading the Dump Truck with drilling mud and allowing Mr. Lopez Soto to drive the Dump Truck off the well site when they knew or should have known that the taillights, turn signal lights, brake lights, plastic reflectors, and DOT conspicuity reflective tape were covered with drilling mud.

57. Each such acts and omissions, singularly or in combination with others, constituted negligence that proximately caused the collision and the resulting damages suffered by the Plaintiffs.

XIV. NEGLIGENT HIRING BY DEFENDANT HLI

58.Plaintiffs adopt and incorporate paragraphs 1-42 above and, pleading in the alternative, allege that if Defendant Martinez Trucking is deemed to be an independent contractor rather than an employee of HLI, that Defendant HLI owed Plaintiffs a duty to hire a

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 15 of 22

reasonably prudent drilling mud hauler and breached that duty in one or more of the following respects:

By hiring Martinez Trucking, who they knew or should have known did not have a Waste Hauler Permit;

By hiring Martinez Trucking, who they knew or should have known was hauling drilling mud in the open-top Dump Truck, a vehicle that was not designed, maintained, and operated to prevent leakage;

By hiring Martinez Trucking, who they knew or should have known was hauling a drilling mud in the Dump Truck, which was not marked with a Waste Hauler Permit number; and

By hiring Martinez Trucking, who they knew operated the Dump Truck in an unroadworthy condition in that the taillights, turn signal lights, brake lights, plastic reflectors, and DOT conspicuity reflective tape were not visible as required by the laws of Texas and of the United States of America.

Each such acts and omissions, singularly or in combination with others, constituted negligent hiring that proximately caused the collision and the resulting damages suffered by the Plaintiffs.

NEGLIGENT CONTROL BY DEFENDANT HLI

Plaintiffs adopt and incorporate paragraphs 1-42 above and, pleading in the alternative, allege that if Defendant Martinez Trucking is deemed to be an independent contractor rather than an employee of HLI, that Defendant HLI owed Plaintiffs a duty to exercise reasonable care in its control of the work of Martinez Trucking and breached that duty in one or more of the following respects:

By loading the Dump Truck with drilling mud and entrusting it to Mr. Lopez Soto, who they knew or should have known was not trained to handle and haul drilling mud;

By loading the Dump Truck with drilling mud and entrusting it to Mr. Lopez Soto, who they knew or should have known was operating a vehicle that was not designed, maintained, and operated to prevent leakage;

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 16 of 22

By loading the Dump Truck with drilling mud and allowing Mr. Lopez Soto to drive the Dump Truck off the well site when they knew or should have known that the Dump Truck did not have taillights, turn signal lights, brake lights, plastic reflectors, and reflector tape that were visible as required by the laws of Texas and of the United States of America;

By loading the Dump Truck with drilling mud and allowing Mr. Lopez Soto to drive the Dump Truck off the well site when they knew or should have known that the taillights, turn signal lights, brake lights, plastic reflectors, and DOT conspicuity reflective tape were covered with drilling mud; and

By failing to require and insist that only Commission waste hauler permitted vehicles be used in the removal of drilling mud from the well sites.

Each such acts and omissions, singularly or in combination with others, constituted negligent control of its contractor that proximately caused the collision and the resulting damages suffered by the Plaintiffs.

XVI. NEGLIGENT CONTROL BY CHESAPEAKE

Plaintiffs adopt and incorporate paragraphs 1-42 above and allege that Defendant Chesapeake owed Plaintiffs a nondelegable duty as the operator of Well 16H to exercise reasonable care to prevent its contractors from engaging in dangerous activities or creating dangerous conditions to those outside the premises and breached that duty in one or more of the following respects:

By failing to ensure that HLI and its employees and/or contractors complied with and took precautions required by statute or regulation;

By failing to ensure that HLI and its employees and/or contractors transported drilling mud from Well I6H in only Commission-approved Waste Hauler Permitted vehicles;

By failing to ensure that HLI and its employees and/or contractors transported drilling mud from Well 16H in vehicles that had visible taillights, turn signal lights, brake lights, plastic reflectors, and reflector tape as required by the laws of Texas and of the United States of America; and

By failing to ensure that HLI and its employees and/or contractors transported drilling mud from Well 16H in vehicles that had taillights, turn signal lights,

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 17 of 22

brake lights, plastic reflectors, and reflector tape that was not obscured by drilling mud.

Each such acts and omissions, singularly or in combination with others, constituted negligent control of its contractor that proximately caused the collision and the resulting damages suffered by the Plaintiffs.

XVII. GROSS NEGLIGENCE OF ALL DEFENDANTS

Plaintiffs adopt and incorporate paragraphs 1-63 above and allege that the negligence of the Defendants was of such a character as to make Defendants guilty of gross negligence. The conduct of Defendants, viewed objectively from the standpoint of the Defendants at the time of its occurrence, involved an extreme degree of risk, considering the probability and the magnitude of potential harm to others. Moreover, the Defendants engaged in the conduct with conscious indifference to the rights, safety, or welfare of others, despite the Defendants actual, subjective awareness of the risk involved. Plaintiffs are entitled to recover and seek exemplary damages in an amount that may be found by the trier of fact.

XVIII. WRONGFUL-DEATH DAMAGES

As a result of the untimely death of Mr. ME, JMEhas suffered pecuniary
loss from the death of her husband, including losses of care, maintenance, support, services, advice, counsel, and contributions of a pecuniary value that she would, in reasonable probability, have received from her husband during his lifetime had he lived. In addition, she has suffered loss of consortium and damage to the husband-wife relationship, including loss of affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love and felicity necessary to a successful marriage. She has suffered mental anguish, grief, and sorrow as a result of the death of her husband, and is likely to continue to suffer for a long time in the future, for these losses, JMseeks damages in a sum within the jurisdictional limits of the Court.

AM ME, NEMIIMM, and Khave suffered pecuniary loss from the death of their Father, M=ME, including loss of care, maintenance, support services, advice, counsel, and contributions of a pecuniary value that they would in reasonable probability, have received from their Father during his lifetime had he lived. They have suffered additional losses by virtue of the destruction of the parent-child relationship, including the right of love, affection, solace, comfort, companionship, society, emotional support, and happiness. They have suffered severe mental depression and anguish, grief and sorrow as a result of the death of their Father, and are likely to continue to suffer for a long time in the future. For these losses MM, N 1VIE, and KM. WM, seek damages in a sum within the jurisdictional limits of the Court.

MMM•. Moreover, Mr. MM provided his Mother with care, attention, and counsel in her day-to-day affairs. In all reasonable probability, Mr. ME would have continued to so provide for his mother until her death. She has suffered loss of affection, solace, comfort companionship, society, assistance, emotional support, and love, and is likely to continue to suffer for a long time in the future. For these losses MM seeks damages in a sum within the jurisdictional limits of the Court.

.1= ME, AM MU,and 1 WM, have suffered
a loss of inheritance that, in all reasonable probability, Mr. MEwould have left to them by will or inheritance. For these losses JTv= A= M.,ME, and
WM, seek damages in a sum within the jurisdictional limits of the Court.

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 19 of 22

XIX. SURVIVAL DAMAGES

Plaintiffs, with the exception of WIIIMMI who brings this action as next friend of Mr. Mils daughter, and KM.ME, are all heirs at law of M

There is no legal representative for M M’s estate, and no administration of the estate is required at this time. This survival action claim is brought by these Plaintiffs in their capacity as legal heirs under the intestacy laws of Texas, as allowed under Tex. Civ. Prac. & Rem. Code § 71.021.

As a proximate result of the occurrence made the basis of this suit, M=I=

M died on February 29, 2008, after undergoing severe conscious pain and suffering. Mr. M.’s heirs have paid a reasonable and customary charge for his funeral and burial. They are entitled to recover for funeral and burial expenses, and for the pain and suffering, and mental anguish that Mr. MMI endured prior to his death.

PUNITIVE DAMAGES

71. Plaintiffs additionally seek punitive damages on the basis Defendants acted with malice and callous indifference with regard to the duties they owed to MMIL the Plaintiffs, and the general motoring public by failing to maintain and operate and/or supervise a motor vehicle in a manner prescribed by law.

XXI. JURY DEMAND

72. Plaintiffs respectfully request a trial by jury.

XXII. REQUEST FOR DISCLOSURE

73. Under TEXAS RULE OF CIVIL PROCEDURE 194, Plaintiffs request that Defendants HLI and Chesapeake disclose, within 50 days of the service of this request, the information or material described in Rule 194.2.

PLAINTIFFS’ SECOND AMENDED ORIGINAL PETITION — Page 20 of 22

WHEREFORE, Plaintiffs request that the Defendants be cited to appear and answer, and that on final trial plaintiffs have:

Damages within the jurisdictional limits of the Court, in recompense for the loss of affection and companionship of Mma as described above, and the loss of the
pecuniary support from MIME, as described above, together with prejudgment interest as provided by law, and post judgment interest as provided by law from the date of judgment until paid;

Damages within the jurisdictional limits of this Court, in recompense for the loss of pecuniary support from MME, as described above, for as many years as he
would likely have lived in the future, together with prejudgment interest thereon from February 26, 2010, as provided by law, and post-judgment interest as provided by law from the date of judgment until paid;

Costs of funeral and burial expenses;

Damages for the pain and suffering that M=MMendured;

Exemplary damages;

Costs of suit; and

Any further relief both at law and equity to which the Plaintiffs may be justly entitled.

DATED this 2nd day of December, 2011.

Posted in : Gregory H. Bevel

One response to “TEXAS TRUCKING ACCIDENT RESULTS IN WRONGFUL DEATH”

  1. writeessay says:

    write essay for me http://dekrtyuijg.com/

    Tips nicely utilized!.