Alverez v. J. Ray McDermott & Co., Inc.

• Decision Date: 05 May 1982
• Docket Number: No. 80-3836,80-3836
• Citation: 674 F.2d 1037
• Parties: Harold E. ALVEREZ, Plaintiff-Appellant Cross-Appellee, v. J. RAY McDERMOTT & CO., INC., Defendant-Appellee Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1037

674 F.2d 1037

1984 A.M.C. 302

Harold E. ALVEREZ, Plaintiff-Appellant Cross-Appellee, v. J. RAY McDERMOTT & CO., INC., Defendant-Appellee Cross-Appellant.

No. 80-3836.

United States Court of Appeals, Fifth Circuit.

May 5, 1982.

James A. McCann, New Orleans, La., for plaintiff-appellant, cross-appellee.

McGlinchey, Stafford & Mintz, John E. Galloway, Elizabeth A. Alston, New Orleans, La., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, GEE and GARWOOD, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Plaintiff Harold E. Alverez sued his employer, J. Ray McDermott & Co. (McDermott), for injuries sustained while working aboard the Lay Barge 22. Appealing a judgment based on a jury verdict in his favor, Alverez complains that the jury's answers to special interrogatories are inconsistent and that the damage award should be increased for maintenance and cure. McDermott has filed a cross-appeal, asserting that the damage award designated by the jury is a gross figure that should have been reduced by the District Court for the percentage of Alverez' negligence fixed by the jury. McDermott also challenges Alverez' right to raise on appeal the issue of inconsistent jury findings. Having determined that the interrogatories are not inconsistent and that the damage award, already diminished for the plaintiff's negligence, includes maintenance and cure, we affirm.

I. Facts

Harold Alverez was employed by McDermott as a member of the crew of the Lay Barge 22. On Alverez' first day back after treatment for a sinusitis condition, he was assigned duties at the forwardmost bow "imprep" station, located on a pipe rack fourteen feet above the port side bow deck. At approximately 5:30 p. m., the dinner meal was called. There were four methods of egress to reach the galley area from Alverez' work station-two stairwells, a gangway, and a walkway across the pipe rack. All of these, according to Alverez, were obstructed or dangerous. Alverez chose to go across the pipe rack, a route utilized frequently by many of the crew, as well as supervisory and safety personnel. Unfortunately, Alverez was not successful in navigating his way across the pipe to the galley and fell from the pipe rack to the deck fourteen feet below, injuring his back, side and head. This fall resulted in a back injury which has kept Alverez from returning to heavy types of employment.

Alverez brought suit against his employer under the Jones Act and General Maritime Law, claiming that his injuries resulted from the negligence of McDermott and unseaworthiness of the Lay Barge 22. He also sought to recover maintenance and cure. At trial, Alverez presented evidence that the passageways were cluttered and dangerous and that the pipe route, the only unobstructed path, was often used by supervisory and safety personnel. Alverez also attempted to demonstrate that McDermott was operating with a short crew, the result being that although Alverez was feeling ill on the day of the accident, he was asked to "stick it out." McDermott presented testimony that contradicted Alverez concerning whether the passageways were obstructed. McDermott also established that Alverez, on the day of the accident, in violation of the employer's regulations, had failed to notify the medic on board the barge that he was taking prescribed medicine at the time which could cause drowsiness.

The case was submitted to the jury under F.R.Civ.P. 49(a) with a general charge and five special interrogatories covering both Jones Act negligence and unseaworthiness. ¹ The jury found that McDermott was negligent (int. 1) but that the Lay Barge 22 was not unseaworthy (int. 2). Further, the jury determined that (i) Alverez was negligent, (ii) his negligence was not a "proximate cause" of his injury but (iii) his negligence was a producing cause of his injuries (int. 3). The percentage that Alverez' negligence contributed to his injuries was found to be 90% (int. 4) and his damages were fixed at $18,000 (int. 5).

Alverez' motion for j. n. o. v. on the issue of maintenance and cure, motion to set aside the jury verdict, and motion for entry of judgment in favor of the plaintiff or in the alternative for a new trial were denied. Following oral argument and submission of memoranda by counsel, the District Court rendered an opinion that the jury figure of $18,000 was a net figure, not subject to diminution by 90% and judgment was entered accordingly.

On appeal, Alverez raises three points of error. First, he asserts that the jury's finding that McDermott was negligent is inconsistent with the finding that the barge was not unseaworthy. Second, Alverez contends that the finding that his negligence produced 90% of his injuries is inconsistent with the finding that his negligence was not a proximate cause of his injury. Finally, he argues that the jury's verdict must be increased because there is no provision in the damage award for maintenance and cure, penalties, and attorney's fees for "arbitrary and capricious termination" of maintenance and cure. In its cross-appeal, McDermott contends that the $18,000 awarded by the jury represents a "gross" figure that should then have been reduced by the District Court for the amount of Alverez' contributory negligence (90%) to yield the net figure of $1,800. McDermott also maintains that Alverez has waived his right to challenge the consistency of the interrogatories by failing to ask for resubmission at the time the jury returned its verdict.

II. Inconsistent Interrogatories

A. Standard of Review

Two of the three asserted errors raised by Alverez concern allegedly inconsistent answers to special interrogatories. We are required under the Seventh Amendment to make a concerted effort to reconcile apparent inconsistencies in answers to special verdicts if at all possible. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798, 806-07 (1962); Mercer v. Long Mfg. N. C., Inc., 665 F.2d 61 (5th Cir.), rehearing denied, 671 F.2d 946 (1982); Miller v. Royal Netherlands Steamship Co., 508 F.2d 1103, 1106-07 (5th Cir. 1975); Griffin v. Matherene, 471 F.2d 911, 915 (5th Cir. 1973). "We therefore must attempt to reconcile the jury's findings, by exegesis, if necessary, before we are free to disregard the jury's verdict and remand the case for new trial." Gallick v. B&O R. R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618, 627 (1963). See Morrison v. Frito-Lay, Inc., 546 F.2d 154 (5th Cir. 1977); Gonzales v. Missouri Pacific Railroad Co., 511 F.2d 629 (5th Cir. 1975); R. B. Co. v. Aetna Insurance Co., 299 F.2d 753 (5th Cir. 1962). Whenever it is possible to reconcile conflicts, this Court is able to direct "a comprehensive, final disposition to the case without infringing in the slightest upon the inviolate nature of the jury trial and resolution." Brown, Federal Special Verdicts: The Doubt Eliminator, 44 F.R.D. 338, 347 (1968).

The test for determining whether jury answers to special verdicts are inconsistent is well-established in this Circuit.

This court has stated that the test to be applied in reconciling apparent conflicts between the jury's answers is whether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted, even though the form of the issue or alternative selective answers prescribed by the judge may have been the likely cause of the difficulty and largely produced the apparent conflict.... If on review of the District Court's judgment we find that there is no view of the case which makes the jury's answers consistent and that the inconsistency is such that the special verdict will support neither the judgment entered below nor any other judgment, then the judgment must be reversed and the cause remanded for trial anew.

Griffin, 471 F.2d at 915 (citations omitted). See also Mercer, supra; Guidry v. Kem Manufacturing Co., 598 F.2d 402, 408 (5th Cir.), rehearing denied, 604 F.2d 320 (5th Cir. 1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980); Willard v. The John Hayward, 577 F.2d 1009 (5th Cir. 1978). In attempting to reconcile special verdicts, our constitutional mandate to create consistency requires that we look beyond the face of the interrogatories to the court's instructions as well. Mercer, supra; Griffin, supra; McVey v. Phillips Petroleum Co., 288 F.2d 53, 59 (5th Cir. 1961).

McDermott attempts to foreclose entirely any review upon appeal of the inconsistency of the answers to the interrogatories. McDermott would have us hold that the failure to request resubmission to the jury prior to its discharge results in a waiver of the party's subsequent right to complain of the inconsistent special verdicts. Neither F.R.Civ.P. 49(a) nor the law of this Circuit has established any such rule of waiver and we decline to do so in this case. That this Circuit has never adopted such a waiver rule in cases with special interrogatories under F.R.Civ.P. 49(a) is made quite clear in our opinion in Mercer v. Long Mfg. N. C., Inc., 671 F.2d 946 (5th Cir. 1982) (denial of petition for rehearing). ²

B. Negligence and Unseaworthiness

The first asserted inconsistency is between the finding of negligence (int. 1) and the finding of no unseaworthiness (int. 2). Alverez argues that all of the elements of negligence that he proved at trial also established the unseaworthiness of the vessel, demonstrating that the work environment aboard the barge was unsuitable for its intended purpose and was unsafe. Therefore, if the jury found that McDermott had been negligent in allowing the unsafe condition to exist, then logically the jury should have also found the barge to be unseaworthy. Alverez reasons that since the jury impliedly found in favor of him on the factual issues of obstruction of passageways and sufficiency of crew, as a matter...