Fox v. Texaco, Inc.
| Decision Date | 06 November 1998 |
| Docket Number | No. 97 CA 2126.,97 CA 2126. |
| Citation | 722 So.2d 1064 |
| Parties | Terrence E. FOX v. TEXACO, INC. |
| Court | Court of Appeal of Louisiana — District of US |
J.B. Jones, Cameron, for Plaintiff-Appellant—Terrence Fox.
Michael M. Caffery, New Iberia, for Defendant-Appellee—Texaco, Inc.
Jeffery M. Baudier, New Orleans, for Defendant-Appellee—Texaco, Inc.
BEFORE: FITZSIMMONS and GUIDRY, JJ., and CHIASSON, J. Pro Tem.1
Plaintiff, Terrence Fox, appeals from a verdict and judgment notwithstanding the verdict for injuries sustained while working for defendant, Texaco, Inc. The jury awarded the following:
$ 165.00 — past medical expenses $ 14,000.00 — future medical expenses $ 12,841.00 — past physical and mental pain and suffering $ 0.00 — future pain and suffering $ 50,916.00 — past loss of earning capacity $ 110,333.00 — future loss of earning capacity ____________ $ 188,255.00 — TOTAL
After granting the plaintiff's motion for judgment notwithstanding the verdict, the trial court determined that plaintiff was additionally entitled to an award for future pain and suffering and disability in the sum of $48,000.00.
Mr. Fox asserts in his appeal that the jury erred: in its failure to award "maintenance;" failure to award pre-judgment interest; and, inadequate awards of general damages and past loss of earning capacity. Finally, it is alleged that the judge failed to enter judgment in accordance with the jury's finding as to "cure" or to award adequate future general damages.
Texaco, Inc. answered the appeal. It alleged as error that the jury abused its discretion in its award of $50,916.00 in past loss of earning capacity and in its award of $110,333.00 in future loss of earning capacity.
"Maintenance and cure" is an ancient duty imposed upon the owner of a ship to provide food, lodging and necessary medical services to seamen who become ill or injured during service to the ship. Davis v. Odeco, Inc., 18 F.3d 1237, 1245 (5th Cir. 1994),cert. denied, Murphy Exploration & Production Company v. Davis, 513 U.S. 819, 115 S.Ct. 78, 130 L.Ed.2d 32 (1994). The burden of proof in seeking maintenance and cure is relatively light because recovery is not contingent upon negligence or fault of the vessel or its owner. Generally, a seaman need only prove that the injury arose during his service of the vessel; no causal connection to his duties need be shown. Comeaux v. Basin Marine, Inc., 93-1624, p.5 (La.App. 1st Cir.6/24/94); 640 So.2d 833, 836, writ denied, 94-2307 (La.11/18/94); 646 So.2d 386.
"Cure" includes medical, therapeutic and hospital expenses, until that point in time when plaintiff reaches maximum medical recovery. Milstead v. Diamond M. Offshore, Inc., 94-1582, p. 24 (La.App. 3rd Cir.9/6/95); 663 So.2d 137, 150, rev'd on other grounds, 95-2446 (La.7/2/96); 676 So.2d 89. In the case sub judice, the jury found that the plaintiff was entitled to "cure;" however, the trial court judgment did not reflect that finding. In its reasons for decisions, the trial court stated that it interpreted the jury's responses to the verdict sheet, in which it awarded the plaintiff future medical expenses to satisfy their positive response to the award of "cure." We find this inference to constitute legal error.
Maintenance and cure is an action ex contractu, pursued via a separate cause of action or theory of recovery than negligence for injuries caused by unseaworthiness of a vessel. Perry v. Allied Offshore Marine Corp., 618 So.2d 1033, 1035 (La.App. 1st Cir. 1993). Ordinarily, a seaman need only prove that he was in the service of the vessel when the injury arose. Comeaux, 93-1624 at p. 5; 640 So.2d at 836. The jury's express factual finding that the plaintiff was due "cure" under maritime law was unambiguous. It is subject to the "clearly erroneous" standard of review. Id. The evidence is supportive of the jury's finding that "cure" would apply in this matter. The jury's past and present award of medical expenses clearly demonstrates that it believed Mr. Fox's injuries to have been job-related and not to have reached the point of maximum medical recovery. An explicit grant of cure cannot be judicially subsumed into the jury's independent findings on separate and distinct claims. Accordingly, the trial court judgment should be amended to reflect the incorporation of the jury's finding of "cure."
"Maintenance" is designed to provide a seaman with a sum for food and lodging expenses that he would have otherwise received on the vessel, if he had not been injured. Heaton v. Gulf International Marine, Inc., 536 So.2d 622, 626 (La.App. 1st Cir.1988). Maintenance payments may only be credited against amounts awarded that are the substantial equivalent of maintenance. Jenkins v. Kerr-McGee Corporation, 613 So.2d 1097,1107 (La.App. 3rd Cir.), writs denied, 616 So.2d 701 (La.1993) and 616 So.2d 702 (La.1993), citing, Colburn v. Bunge Towing, Inc., 883 F.2d 372, 378 (5th Cir. 1989). Maintenance paid may not be deducted from an award for past lost wages. Jenkins v. Kerr-McGee Corporation, 613 So.2d at 1107, citing Phillips v. Western Company of North America, 953 F.2d 923 (5th Cir. 1992)
Generally, maintenance and cure are awarded jointly. The jury in the instant case, however, found that Mr. Fox was entitled to cure, but not to maintenance not provided by Texaco. A resolution of this issue hinges on the existence vel non of a reasonable basis for the jury's failure to recognize the plaintiff's right to maintenance, given its award of cure.
Our review of this issue on appeal is shaped by the general rule that factual findings will not be disturbed in the absence of manifest error. An appellate court's reversal of a jury or trial court's factual finding necessitates a determination that the record does not support the existence of a reasonable factual basis for the finding, such that it is clearly wrong. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Notwithstanding an appellate court's independent evaluations and inferences being considered preferable by it to those of the factfinders, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, 617 So.2d at 882-883. In the case under consideration, Mr. Fox continued to work on a full-time basis until his position was terminated. The jury found that he worked, despite a medical condition that had not reached maximum cure. Such a finding would bear a reasonable basis for a jury's determination that Mr. Fox could be due cure, but not maintenance for that period of time until he was terminated. Even casting this latter thought to the void, the parties stipulated at trial that maintenance would not begin until January 1, 1995, the date of Mr. Fox's termination.
After January 1, 1995, Mr. Fox was unemployed. The jury awarded cure for future medical treatment; it thereby implicitly found that Mr. Fox had not reached maximum medical cure. The failure of the jury to coextensively award maintenance from that period of time when Mr. Fox was terminated, until the point at which he reaches maximum medical recovery after the operation in the future, is inconsistent with the foundations upon which maintenance and cure are premised. We thus find that the jury's denial of maintenance for an injury that occurred during his service as a seaman for the period of time when he was unemployed, and would necessitate food and lodging, to be clearly wrong. The denial of maintenance is reversed. It is awarded pursuant to the formula stipulated by the parties prior to trial, i.e., in the sum of $20.00 per day from January 1, 1995 until the point of maximum medical recovery in the future.
Mr. Fox seeks the award of pre-judgment interest for past due maintenance that is claimed on appeal. This court's affirmance of the jury's denial of maintenance for the period of time between the injury and the trial obviates that assertion. This assignment of error lacks merit.
Mr. Fox submits that the jury's award of $12,841.00 in damages for pain, suffering and disability was unreasonably low. In reviewing damage awards, discretion is left with the trier of fact. La. C.C. art. 2324.1. The parameters of review of general damage awards by an appellate court are limited to a determination of whether the exercise of discretion by the trial court or jury has been abused. Andrus v. State Farm Mutual Automobile Insurance Company, 95-0801, p. 8 (La.3/22/96); 670 So.2d 1206, 1210; See also Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).
After a thorough review of the medical etiology and testimony in the instant matter, we do not find that the jury abused its much discretion in making its award. When viewed in a light most favorable to the plaintiff, the award in this matter is not beyond that which a reasonable trier of fact could assess for the particular effects of the knee and neck injuries to Mr. Fox. See Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).
In a judgment notwithstanding the verdict, the trial court increased Mr. Fox's award for future general damages to the sum of $48,000.00. Plaintiff/appellant appeals that judgment as abusively low.
The jury awarded the plaintiff the sum of $12,841.00 for...
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