PJC Business

PJC 115.26

D AMAGES

to perform an illegal act. Sabine Pilot Service, Inc. v. Hauck , 687 S.W.2d 733, 736 (Tex. 1985) (Kilgarlin, J., concurring). The concurrence suggests that the proper mea sure of damages in such cases includes “loss of wages, both past and those reasonably anticipated in the future, and employee and retirement benefits that would have accrued had employment continued. It would also include punitive damages.” Sabine Pilot Service, Inc. , 687 S.W.2d at 736; see also Worsham Steel Co. v. Arias , 831 S.W.2d 81, 85 (Tex. App.—El Paso 1992, no writ) (approving above as measures of damages in article 8307c case). But the Texas Supreme Court has more recently allowed that, “in the proper case, Sabine Pilot plaintiffs may recover any reasonable tort damages, including punitive damages.” Safeshred, Inc. v. Martinez , 365 S.W.3d 655, 661 (Tex. 2012). There may be other elements of common-law damages, e.g., mental anguish, that are recoverable other than those listed in PJC 115.26. The Com mittee expresses no opinion concerning the recoverability of these common-law dam ages. Mitigation. For a defensive instruction on mitigation, see PJC 115.8 and 115.25. Elements of damages submitted separately. The Committee generally recom mends that multiple elements of damages be separately submitted to the jury. Harris County v. Smith , 96 S.W.3d 230, 233–34 (Tex. 2002) (broad-form submission of valid and invalid elements of damages may lead to harmful error if there is a proper objec tion raising insufficiency of the evidence to support one or more of the elements sub mitted); see also Tex. Civ. Prac. & Rem. Code §41.008(a) (“In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages.”). Separating economic from noneconomic damages is required to allow the court to apply the limits on recovery of exemplary damages based on economic and noneco nomic damages as required by Tex. Civ. Prac. & Rem. Code § 41.008(b). Further, “[p]rejudgment interest may not be assessed or recovered on an award of future damages.” Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop erty damage cases). Therefore, separation of past and future damages is required. Elements considered separately. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 770 (Tex. 2003), provides an instruction for cases involving undefined or potentially overlapping categories of damages. In those cases, the following language should be substituted for the instruction to consider each element separately: Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Exemplary damages. No Texas case has established whether exemplary damages are recoverable in a Sabine Pilot case. The predicate state of mind or conduct for an

478