AUSTIN – A 2nd Court of Appeal's decision to cut $2 million from a jury award in a liability dispute will stand after the Texas Supreme Court declined to review the matter.

Emmert Industrial Corp. sought the added litigation against Hulcher Services Inc., arguing that it lost substantial profits as a result of an accident where its train car carrying a 240-ton electric transformer derailed and its cargo was destroyed.

While affirming the jury’s 2016 verdict finding Hulcher liable, the 2nd Court of Appeals reduced Emmert’s trial win haul by nearly 70 percent, which had largely been based on lost profits stemming from its dealings with Oncor Electric Delivery, owners of the transformer.

While Hulcher was also found guilty of violating the Deceptive Trade Practices-Consumer Protection Act based on its faulty claim that the company had the capacity to rerail the car, the appellate court concluded that conduct alone “couldn’t be considered a producing cause of reduced business from Oncor after the derailment.”

As part of its appeal petition, Emmert insisted that the lower court’s decision did not take precedent into account when it “determined Emmert’s lost profits were caused by a new and independent cause."

Oncor first hired Emmert in 2007 to move the 480,000-pound electric transformer. The mishap occurred when workers were loading the transformer onto a railcar using two large cranes. As workers from Hulcher toiled to rerail the car, a cable snapped, dislodging the transformer, which suffered damage “beyond any financially feasible repair,” court documents state.

Since then, Emmert and Oncor had been in dispute over who should be financially held liable for the transformer, with an Oncor employee admitting during trial that the company cut off Emmert to exert pressure that could lead to a quicker settlement.

Through it all, Hulcher officials maintained that it was Emmert’s refusal to settle with Oncor that led to lost business for the company.

Emmert was represented by John T. Lynch IV, Jerry D. Bullard and Scott A. Cummings of Adams Lynch & Loftin PC, while Hulcher’s legal team was composed of Thomas C. Wright, Wanda McKee Fowler and Bradley W. Snead of Wright & Close LLP.

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