Andrews v. John Crane, Inc.
|18 June 2020
|604 S.W.3d 495
|Robin Blaine ANDREWS, Individually and as Personal Representative of the Heirs and Estate of Garland Dale Pepper, Deceased, and Garland Pepper, Jr., Susan Andrews, Kimberly Brown and Carolyn Walker, Appellants v. JOHN CRANE, INC., Appellee
|Texas Court of Appeals
Appellants, Robin Blaine Andrews, Individually and as the Personal Representative of the heirs and estate of Garland Dale Pepper, deceased, and Garland Pepper, Jr., Susan Andrews, Kimberly Brown, and Carolyn Walker, appeal from a take-nothing judgment signed after the trial court granted a partial summary judgment on the question of the damages recoverable by appellants, and a subsequent bench trial on stipulated evidence. Concluding that the trial court correctly determined that maritime law applied but it erred when it granted the partial summary judgment on the damages recoverable by appellants, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion.
The facts in this case are undisputed. This is a products liability action based on decedent Garland Pepper's contracting pleural mesothelioma
after allegedly being exposed to appellee John Crane, Inc.'s (JCI) asbestos-containing sheet gasket material during his service in the United States Navy. While Pepper served in the Navy, he worked on the high seas, in territorial waters, and in dry dock. Pepper estimated that eighty percent of his work was done while the ship was underway, either in territorial waters or on the high seas, and twenty percent was performed in dry dock.
The only sheet-gasket material Pepper recalled using was JCI style 2150. Pepper testified that there was dust created whenever he cut JCI asbestos sheets for steam-valve gaskets. JCI's corporate representatives concede that JCI's 2150 gaskets were sold to the Navy during all relevant time periods. Style 2150 contained seventy to eighty percent asbestos and was recommended for both high-pressure and low-pressure steam systems.
This case was transferred to the asbestos multi-district litigation court in Harris County where it was initially set for trial on September 7, 2015. Pepper died in 2014 and the case was amended to substitute appellants and add claims for wrongful death. JCI moved for summary judgment in July 2015 arguing that appellants could not satisfy the causation element of their claims against JCI. While JCI moved for summary judgment under Texas law, it also stated in the motion that "we have not asked that the Court apply any other law than Texas law, however a motion to apply maritime law may be filed." JCI continued "regardless of whether the Court applies Texas law or maritime law, [appellants] cannot satisfy the causation element of their claims against [JCI]." In addition, JCI included a section in the motion arguing that appellants could not "satisfy the causation element of their claims against [JCI] under maritime law." Appellants responded to JCI's motion for summary judgment arguing against summary judgment under Texas law.
Appellants subsequently filed an amended petition on August 3, 2015, just over a month before the case was originally scheduled to go to trial. Eleven days later, JCI formally moved for the first time for the application of maritime law. JCI followed this up a few days later with special exceptions to several of appellants' causes of action based on its interpretation of the application of maritime law and the Death On the High Seas Act (DOHSA). See 46 U.S.C. § 30301 et. seq. Then, on August 20, 2015, JCI filed its second amended answer adding the defense that maritime law preempted the application of Texas law on appellants' claims.
The case did not go to trial as originally scheduled. Instead, the trial court signed an order staying the case based on section 90.055 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 90.055 (). The case remained stayed until May 24, 2016 when the trial court signed an order setting a new trial date of January 23, 2017. The record establishes that the case was reset again when the trial court granted JCI's motion for continuance. The new trial setting was February 6, 2017. While the case did not go to trial that day, the record does not explain the reason it did not do so.
Once the question of the application of maritime law was introduced into the case, the briefing on the applicability of maritime law dominated the remainder of the case. The parties did extensive briefing on the subject spanning hundreds of pages in the appellate record. The trial court eventually determined that maritime law applied to appellants' claims and that maritime law precluded the recovery of non-pecuniary damages, specifically Pepper's pre-death pain and suffering. Based on the parties' stipulation that, with non-pecuniary damages precluded by the trial court's ruling, the amount of prior settlements exceeded the maximum possible recovery of pecuniary damages, the trial court signed a take-nothing final judgment for JCI. This appeal followed.
Appellants argue in their first issue that JCI waived the application of federal maritime law in this case because JCI did not plead preemption in its original answer. Then, recognizing that JCI added preemption in an amended answer, appellants argue that the trial court abused its discretion when it allowed JCI to add the defense. JCI responds that it did not waive the application of maritime law because it timely filed its amended answer. It further responds that the trial court did not abuse its discretion because appellants cannot show they were prejudiced by the amended answer. We agree with JCI.
A party may waive the defense that a claim is preempted by federal law. See Hollis v. Acclaim Physician Group, Inc. , No. 02-19-00062-CV, 2019 WL 3334617, at *4 (Tex. App.—Fort Worth July 25, 2019, no pet.) (mem. op.) (party waived choice-of-law preemption argument by failing to raise it in the trial court) . Waiver is defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Sun Expl. & Prod. Co. v. Benton , 728 S.W.2d 35, 37 (Tex. 1987). Waiver is largely a matter of intent, and for implied waiver to be found through a party's actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Jernigan v. Langley , 111 S.W.3d 153, 156 (Tex. 2003). "There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right." Id.
The general rule regarding pleading amendments is that the parties may freely amend if the amended pleading is filed at least seven days before trial. See Tex. R. Civ. P. 63 ; Sosa v. Cent. Power & Light , 909 S.W.2d 893, 895 (Tex. 1995) (per curiam). The amended pleading may not, however, act as a surprise to the other party. See Tex. R. Civ. P. 63. A trial court may strike an amended pleading if the opposite party objects and shows surprise. See Greenhalgh v. Service Lloyds Ins. Co. , 787 S.W.2d 938, 939 (Tex. 1990) ().
We turn first to appellants' contention that JCI's failure to include maritime law in its original answer waived the application of maritime law in this case. Appellants have cited no authority supporting their contention that preemption must be pleaded in a defendant's original answer or it is waived. See PHI, Inc. v. LeBlanc , No. 13-14-00097-CV, 2016 WL 747930, at *9 (Tex. App.—Corpus Christi Feb. 25, 2016, pet. denied) (mem. op.) ("Thus, in the absence of any authority supporting a conclusion that under these circumstances a party waives the application of maritime law, we cannot conclude that the trial court abused its discretion by determining that LeBlanc had not waived it."). We therefore reject appellants' contention that JCI's failure to include maritime law as a defense in its original answer, standing alone, demonstrates JCI waived maritime law as a defense.
Appellants next argue that JCI's delay in adding the preemption defense demonstrates waiver. In this situation appellants must show that this delay by JCI clearly demonstrates an intent to not rely upon maritime law. Jernigan , 111 S.W.3d at 156. In an effort to make this showing appellants point out that JCI (1) specifically mentioned Virginia and Alabama law, but not maritime law, in its original answer; (2) invoked Texas law in both its original and first amended answers; and (3) delayed until after it filed a motion for summary judgment and motion to exclude experts under Texas law to add maritime law as a defense in its second amended answer. We conclude that none of these actions clearly demonstrates JCI's intent to not rely upon maritime law. See id. at 157–58 (); Niche Oilfield Servs., LLC v. Carter , 331 S.W.3d 563, 577 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (plaintiff adequately raised application of maritime law in his first amended petition) ; cf. Hollis , 2019 WL 3334617 at *4 (). Our conclusion is reinforced by the fact that JCI included maritime law arguments in its motion for summary judgment, which demonstrates JCI did not intend to waive reliance on maritime law as a defense.
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