A nuclear verdict handed down against Werner Enterprises in 2018 has set off a dispute within a Texas appellate court as the truckload carrier appeals the more than $90 million award.

There is no immediate impact from the decision of the Texas 14th Court of Appeals that Werner’s (NASDAQ: WERN) appeal should be heard en banc, which would be a larger panel than the three-judge panel of the same court that originally heard the appeal but never published its ruling.

While questions about whether the en banc hearing should shove aside the three-judge appeals court ruling may seem technical, a forceful dissent of the decision by one of the judges who will sit en banc suggests he believes a lower court panel had a strong basis to overturn the earlier verdict against Werner.

A three-judge panel reviewed the original Werner verdict. According to a filing by Judge Megan Hassan, that panel completed its work in March of this year with a 2-1 opinion. But what the court ruled is not disclosed in any of the documents filed in connection with the en banc dispute, nor were the parties to the lawsuit informed of a decision.

Hassan was on the three-judge panel and would also sit en banc. Her comments were filed in support of moving to an en banc hearing.

An attorney close to the case said one of the judges on the three-judge panel had resigned, which helped kick off the discussion of whether the panel ruling would hold or whether the Werner appeal would go to the larger lineup of judges. But that does not appear to be the only legal dispute; Hassan said in her concurrence of the decision to hear the case en banc that the opinion of the three-judge panel “attempted to overhaul this court’s well-established standard of review concerning directed verdicts.” 

It was in the lengthy dissent of the decision to hear the case en banc that Judge Randy Wilson suggested there were numerous reasons why the three-judge panel might have a basis to overturn some of the nuclear verdict against Werner. One attorney close to the case suggested that Wilson’s comments seemed to suggest that the three-judge panel had ruled in favor of Werner on at least some of the questions before it.

“Are we just going to skip the panel decision and go directly to en banc every time a justice thinks he or she might be able to cobble together enough votes to overrule a panel sometime in the future?” Wilson wrote. “Why is the en banc majority so afraid of issuing a panel decision and letting the parties know how at least some of the justices view this case?”

Wilson said the two judges who had agreed on the majority position had an opinion “ready to issue” and the dissent also was ready for publication.

By going straight to an en banc hearing, Wilson wrote, the parties in the case will not have the opportunity to offer their views on what the three-judge panel found. “The en banc court has prevented this court from obtaining the parties’ feedback as to the panel opinions,” Wilson wrote. “That is not the objective of en banc consideration.”

The facts of the case that are not disputed are heartbreaking. In December 2014, Jennifer Blake was riding with her three children in a pickup truck owned by a Blake family friend, Zaragoza Salinas. The pickup was eastbound in West Texas on Interstate 20, traveling 50 to 60 mph. 

The driver of the truck lost control in sleeting weather, possibly because of ice on the highway, cut across the 42-foot grassy median and slammed into a westbound Werner truck driven by Shiraz A. Ali, who was traveling at about 50 mph though the speed limit was 70. Ali braked when he saw the pickup truck heading his way, but the two vehicles collided.

One of the Blake children was killed; a second was left a quadriplegic. Other passengers in the pickup had less serious injuries.

At the heart of the lower court decision in favor of the Blake family was a finding that driver Ali and by extension Werner were liable for the accident. 

Wilson’s lengthy dissent does not seek to retry the facts of the case and whether it was reasonable to blame the crash on a driver who was in his lane and who was hit by a driver who had lost control and ended up going east in a westbound lane. 

But he does say in reviewing the facts that the three-judge panel was capable of making decisions on questions such as whether driver Ali was negligent in operating at 50 mph in poor weather, even though that was less than the speed limit. Such questions can be answered without an en banc hearing, he wrote.

Specifically, he said a lower court could rule on Werner’s rejected motion for a directed verdict, which Hassan also referred to in her concurrence of the decision to hear the case en banc. 

“This case is no more appropriate for en banc consideration than hundreds of cases this court hears every year,” Wilson writes.

At the time of the verdict, which ultimately totaled $92 million, Werner said it was the largest ever entered against the company. In the company’s latest 10-Q report, Werner mentions the case and that the judgement is still outstanding but provides no further details.

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