General Chemical Corp. v. De La Lastra

• Decision Date: 24 February 1993
• Docket Number: No. D-1799,D-1799
• Citation: 852 S.W.2d 916
• Parties: Prod.Liab.Rep. (CCH) P 13,415 GENERAL CHEMICAL CORPORATION, Petitioner, v. Gonzalo DE LA LASTRA and Amada De La Lastra, Individually and as Personal Representative of the Estates of Gustavo De La Lastra and Jose Eduardo De La Lastra, Decedents, Respondents.
• Court: Texas Supreme Court

Page 916

852 S.W.2d 916

Prod.Liab.Rep. (CCH) P 13,415

GENERAL CHEMICAL CORPORATION, Petitioner, v. Gonzalo DE LA LASTRA and Amada De La Lastra, Individually and as Personal Representative of the Estates of Gustavo De La Lastra and Jose Eduardo De La Lastra, Decedents, Respondents.

No. D-1799.

Supreme Court of Texas.

Feb. 24, 1993.

Rehearing Overruled June 3, 1993.

Concurring Opinion of Justice Cornyn June 3, 1993.

W. James Kronzer, Jr., Leslie C. Taylor, Houston, Royal H. Brin, Jr., Dallas, John William Black, Brownsville, for petitioner.

Elizabeth A. Davis, Houston, Ray R. Marchan, Guy Allison, Thomas F. Nye, Corpus Christi, John R. Lyde, McAllen, for respondents.

OPINION

GONZALEZ, Justice.

This products liability case presents two principal issues. First, whether general maritime law or state law applies to the facts before us. Second, whether the punitive damages award was excessive under state law or the state constitution.

Two young men died at sea from asphyxiation on a shrimp boat expedition after using a chemical preservative on their catch. Their parents brought suit against General Chemical Corporation, the manufacturer of the chemical, and other defendants alleging negligence, gross negligence, and a violation of the Texas wrongful death statute. Among other things, General Chemical pled that this case was governed by federal maritime law. However, the jury was asked without objection to determine damages which are recoverable under state law but not under federal maritime law. Based on favorable jury findings of these issues, judgment was rendered in favor of the parents and the estates of the young men. In their individual capacity, the parents were awarded an amount for actual damages and, as representatives of the estates, they were awarded actual damages and punitive damages. The court of appeals affirmed, holding that this was not a maritime law case. 815 S.W.2d 750. We hold that state law applies because maritime law, although properly invoked, was waived in this case; we further hold that the punitive damage award exceeds the four times actual damages cap found in TEX.CIV.PRAC. & REM.CODE § 41.007 and violates the Texas Constitution's prohibition (Art. XVI, section 26) against parents recovering punitive damages in wrongful death actions. Thus, we affirm in part and reverse and remand this cause to the trial court for a recalculation of damages consistent with this opinion.

I.

In June 1988, Jose De La Lastra and his brother Gustavo were commercial fishermen aboard the "Wilderness," a fishing vessel which operated in the waters off Brownsville, Texas. Sodium metabisulfite, colloquially called "shrimp dip," is a product manufactured by General Chemical that is commonly used in the shrimping industry to prevent "black spots" from marring freshly caught fish. The bags in which the shrimp dip is sold are marked with a warning in English and in Spanish that says, among other things:

CAN IRRITATE THE SKIN, EYES AND RESPIRATORY TRACT, PROLONGED EXPOSURE MAY CAUSE BURNS.

HARMFUL IF INGESTED, MAY CAUSE SEVERE ALLERGIC REACTION IN SOME ASTHMATICS AND SULFITE SENSITIVE INDIVIDUALS.

REACTS WITH ACIDS AND WATER, RELEASING TOXIC SULFUR DIOXIDE GAS.

AVOID CONTACT WITH SKIN AND EYES.

DO NOT BREATH PRODUCT DUST, USE WITH PROPER VENTILATION.

DO NOT SWALLOW.

AVOID CONTACT WITH ACIDS.

CONTACT WITH WATER SHOULD BE UNDER WELL VENTILATED CONDITIONS.

Do Not Use In Dry Form.

Prepare and use dip solution on deck--NOT IN HOLD. Toxic sulphur dioxide gas may be liberated.

The De La Lastras were either unaware of or consciously disregarded this warning. They used "shrimp dip" in their vessel's hold by layering ice and dry-form shrimp dip across their catch. They were overcome by the sulfur dioxide fumes, and died of asphyxiation shortly after losing consciousness.

The parents, individually and as personal representatives of the estates of their sons, brought suit against General Chemical, and against the owner of the vessel. ¹ Their cause of action was based on strict liability, negligence, and gross negligence in manufacturing and distributing a product with knowledge that the product could cause serious bodily injury or death and in failing to adequately warn of such dangers.

General Chemical pled that the deceased brothers were seamen, that the occurrence occurred beyond the territorial waters of Texas, and that therefore the rights of the parties were governed by maritime law and the Death on the High Seas Act, 46 U.S.C.App. § 761-62 (DOHSA). Under DOHSA, a party is precluded from recovering any non-pecuniary damages, such as mental anguish, loss of society, and punitive damages. General Chemical asserts that this pleading is sufficient to invoke the common law doctrine of general maritime law.

The jury found that the deaths occurred within the territorial waters of Texas, that General Chemical was guilty of negligence and gross negligence in failing to provide an adequate warning on their product of the dangers associated with its use, and that the failure to warn rendered the product in question unreasonably dangerous as marketed. Based on the jury verdict, the parents were awarded a $44,628,698.63 judgment against General Chemical. ²

II.

General Chemical argues that maritime law, and not state law, controls this case, and therefore nonpecuniary damages of loss of society and companionship, mental anguish, and punitive damages are not recoverable. See Miles v. Apex Marine Corp., 498 U.S. 19, --- 111 S.Ct. 317, 325, 112 L.Ed.2d 275 (1990). ³

There is little question that the facts of this case come within the purview of maritime law. See Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990). Although neither DOHSA, 46 U.S.C.App. § 761, nor the Jones Act, 46 U.S.C.App. § 688, provides a remedy under these circumstances, ⁴ the United States Supreme Court in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409, 90 S.Ct. 1772, 1792, 26 L.Ed.2d 339 (1970), has recognized a common law remedy for wrongful deaths occurring in territorial waters under the general maritime law. Therefore, general maritime law is applicable to the facts of this case.

When invoked, maritime law becomes the exclusive remedy under which a party may proceed, preempting all state law grounds of recovery. See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986); Mandell & Wright v. Thomas, 441 S.W.2d 841 (Tex.1969). Nevertheless, the issue squarely before us is whether maritime law, although properly invoked, can be waived. We conclude that it can. Both the United States Supreme Court and this Court, as well as many federal circuits, have held that preemption arguments which affect the choice of law, and not the choice of forum, are waivable. See International Longshoremen's Ass'n v. Davis, 476 U.S. 380, 393, 106 S.Ct. 1904, 1913, 90 L.Ed.2d 389 (1986); Heci Exploration Co. v. Holloway, 862 F.2d 513, 520 (5th Cir.1988); Dueringer v. General American Life Ins. Co., 842 F.2d 127, 130 (5th Cir.1988); Johnson v. Armored Transport of Calif., Inc., 813 F.2d 1041, 1043-44 (9th Cir.1987); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th Cir.1986); Gorman v. Life Ins. Co. of North America, 811 S.W.2d 542, 545 (Tex.1991). Pursuant to the "savings to suitors" clause of 28 U.S.C. § 1333, state courts have concurrent jurisdiction with the federal courts over maritime actions, constrained by the " 'reverse-Erie' doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards." Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 223, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174 (1986); see also Texaco Ref. and Mktg, Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64 (Tex.), cert. denied, 502 U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 245 (1991). Thus, maritime law does not affect a court's jurisdiction over the claim, it merely dictates the substantive law that governs that claim's resolution. As such, maritime law is a choice of law determination that can be waived.

Under the facts of this case General Chemical waived the application of maritime law by failing to object to evidence and jury questions regarding damages which are not recoverable under maritime law.

Although it asserted that DOHSA controlled, General Chemical failed to bring to the trial court's attention the potential applicability of general maritime law limitations on damages. Instead, General Chemical incorrectly assumed that, if the jury found that the deaths occurred in territorial waters, federal law supplied no remedy and the claim would therefore be governed by Texas law. General Chemical submitted an issue inquiring if the deaths occurred beyond three nautical miles from shore. After a negative jury finding, precluding the applicability of DOHSA, the remaining questions that were submitted were damages recoverable under the Texas wrongful death and survival statutes; including elements of damages not recoverable under general maritime law. General Chemical did not object to the submission of these issues, see TEX.R.CIV.P. 274, and in fact, requested the very issues that it now seeks to avoid. ⁵ Parties may not invite error by requesting an issue and then objecting to its submission. See Daily v. Wheat, 681 S.W.2d 747, 754 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.); City of Amarillo v. Langley, 651 S.W.2d 906, 914 (Tex.App.--Amarillo 1983, no writ); Beasley v. Baker, 333 S.W.2d 212, 214 (Tex.Civ.App.--Amarillo 1960, no writ). Further, it was not until its motion for rehearing in the court of appeals that General Chemical asserted the applicability of maritime law; and in its post submission brief to this Court, General Chemical admits that the judgment was based on state law. ⁶

General Chemical defends its submission of state law damages and its failure to assert the application of federal law in the trial court by claiming that the...