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Click here for the full text of this decision FACTS:Following the explosion of a compressor at Diamond Shamrock’s hydrocracker plant, Charles Hall’s widow, Donna Hall, sued Diamond Shamrock and three related entities for wrongful death. The jury found that Diamond Shamrock Refining Co., LP was grossly negligent and assessed exemplary damages of $42.5 million. Following the announcement of the verdict, defendants’ counsel moved in open court “to have the court limit the recovery of punitive damages in this case . . . to the amount of $200,000″ in accordance with 41.008 of the Texas Civil Practice & Remedies Code. The court agreed and rendered judgment against Diamond Shamrock for that amount plus prejudgment interest. Both the plaintiff and Diamond Shamrock appealed. A divided court of appeals held: that evidence of gross negligence was legally and factually sufficient; that 41.008 applied; that 41.008 was not unconstitutional as applied; and that Diamond Shamrock did not waive its right to the statutory cap; but that the trial court erred by precluding the plaintiff from proving actual damages for purposes of calculating the statutory cap. Accordingly, the court reversed and remanded the case for a new trial. HOLDING:Reversed and rendered that Hall take nothing. The court focuses on the subjective component of gross negligence as stated in the jury charge: that an actor have “subjective awareness of the risk involved, but nevertheless proceed[s] with conscious indifference to the rights, safety, or welfare of others.” The risk here was that liquids could accumulate in the discharge line while the compressor was shut down and be drawn into the compressor when it was restarted, causing an explosion like the one that resulted in Hall’s death. There is no evidence that Diamond Shamrock knew the FPU compressor was unsafe as designed and operated, the court finds. The court thinks the case is closer to Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245 (Tex. 1999), in which the defendant’s employees knew that electricity to an overhead crane near where Andrade was working had to be “locked out” (disconnected) and thought that had been done. Although the employees were mistaken, there was no evidence of conscious indifference to the risk of harm. The court in Andrade stated that, “[W]hat separates ordinary negligence from gross negligence is the defendant’s state of mind; in other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care.” Viewing the record in the light most favorable to the plaintiff, the court finds that there is no clear and convincing evidence that Diamond Shamrock knew of the risk of the compressor explosion that resulted in Hall’s death and yet did not care. OPINION:Hecht, J., delivered the opinion of the court. Green, J., did not participate.

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