LaCour v. Lankford Co., Inc.

• Citation: 287 S.W.3d 105
• Decision Date: 15 January 2009
• Docket Number: No. 13-07-017-CV.,13-07-017-CV.
• Parties: Patrick LaCOUR, Appellant, v. LANKFORD COMPANY, INCORPORATED, Appellee.
• Court: Court of Appeals of Texas

287 S.W.3d 105

Patrick LaCOUR, Appellant, v. LANKFORD COMPANY, INCORPORATED, Appellee.

No. 13-07-017-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

January 15, 2009.

Ira Miller, William D. Bonilla, Corpus Christi, for appellant.

Laura M. Baker, James H. Robichaux, Matthews & Branscomb, PC, Corpus Christi, for appellee.

Before Chief Justice VALDEZ and Justices YAÑEZ and BENAVIDES.

OPINION

Opinion by Justice BENAVIDES.

Appellant, Patrick LaCour, appeals from a final summary judgment rendered in favor of appellee, Lankford Company, Inc. By four issues, LaCour argues that he complied with the notice provisions and is entitled to reinstatement and backpay under the Longshore and Harbor Workers' Compensation Act. See 33 U.S.C. §§ 901-950. We reverse and remand.

I. Background

LaCour was employed by Lankford Company as a sandblaster and painter. On March 12, 2004, LaCour was working on an offshore drilling platform, sometimes known as a "rig," in the Gulf of Mexico. Lankford Company was a contractor hired to repaint the rig.

LaCour operated a jetblaster, which is a high-powered pressure washer. He alleges that Lankford Company's foreman, Howard Webb, increased the pressure on the jetblaster without his knowledge. According to LaCour, the increased pressure caused the jetblaster to recoil against his shoulder, knocking him off balance and almost knocking him off the scaffold on which he was working. As a result, LaCour's shoulders were severely injured. That same day, LaCour notified his fellow crewmen and Webb that he was injured. On March 14, 2004, LaCour was examined by medical personnel on the rig. It was determined that LaCour needed further medical attention, so he was flown off the rig by helicopter.

LaCour alleges that on March 15, 2004, he called Jim Lankford, the president and CEO of Lankford Company, to give notice of his injury. LaCour was then terminated from his employment on March 17, 2004, just a few days after his injury. LaCour alleges that in the termination letter, Lankford stated that LaCour was not entitled to any medical or unemployment benefits and that he was being terminated. The letter was signed by Jim and Leon Lankford, the owners of Lankford Company.¹

LaCour filed a claim for workers' compensation with the United States Department of Labor on March 30, 2004. On April 5, 2004, LaCour's attorney sent a letter to Jim Lankford notifying him that LaCour had retained counsel to pursue a wrongful termination claim. On May 18, 2005, LaCour filed suit against Lankford Company for wrongful termination under the Longshore and Harbor Workers' Compensation Act. See 33 U.S.C. § 948a. LaCour alleged that he was fired in violation of 33 U.S.C. section 948a because he filed or attempted to file a claim for workers' compensation.²

While the suit was pending, LaCour was released to return to work on June 13, 2005. However, his doctor filled out a release form indicating that LaCour had a 6% permanent disability. His doctor told him that he could only perform "light duty." LaCour admitted in his deposition that he could no longer perform pressure work, like sandblasting or operating a jetblaster, or any other job that would put pressure on his shoulders. LaCour appeared at Jim Lankford's office on June 14, 2005 and requested employment, which was refused.

Lankford Company answered the lawsuit and then filed a combined motion for traditional and no-evidence summary judgment. TEX.R. CIV. P. 166a(c), (i). First, Lankford Company argued that LaCour failed to exhaust his administrative remedies by providing notice of his claim to the deputy commissioner of the Secretary of Labor located in the compensation district and by filing a claim with the deputy commissioner within one year of the injury. See 33 U.S.C. §§ 912(a), 913(a). Lankford Company argued that after receiving a claim, the deputy commissioner conducts an investigation and orders a hearing on the matter, which would be required before any suit could be filed. Additionally, Lankford Company argued that there was no evidence that LaCour had exhausted his administrative remedies.

Second, Lankford Company argued that LaCour is not entitled to a remedy under 33 U.S.C. section 948a because he is not "qualified to perform the duties of his employment." See id. § 948a. Lankford Company pointed to LaCour's deposition testimony as evidence that LaCour was not qualified to perform the duties of employment, arguing that LaCour admitted that "there were no other positions that he knew of at Lankford that he would actually be able to perform, such as a helper, brush painter, or sander." Lankford did not present testimony from anyone at the company explaining what jobs were available at the company and the jobs' duties. Lankford did not argue this point as a no-evidence ground, but rather, asserted it as a traditional summary judgment ground.

The trial court granted the motion for summary judgment without stating the grounds for its ruling. This appeal ensued.

II. Standards of Review

Lankford Company filed a combined traditional and no-evidence motion for summary judgment. A no-evidence motion for summary judgment is "essentially a motion for a pretrial directed verdict." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex.2006). Once a no-evidence motion for summary judgment is filed, the non-moving party must present evidence raising an issue of material fact as to the elements of the claim challenged in the motion. Id. at 582. "We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Id.

When reviewing a traditional summary judgment, we must determine whether the movant met its burden to establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The movant bears the burden of proof in a traditional motion for summary judgment, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

We will affirm a traditional summary judgment only if the record establishes that the movant has conclusively proved its defense as a matter of law or if the movant has negated at least one essential element of the plaintiff's cause of action. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Clear Creek Basin, 589 S.W.2d at 678. Only when the movant has produced sufficient evidence to establish its right to summary judgment does the burden shift to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); see Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A defendant seeking summary judgment on an affirmative defense must conclusively prove all the elements of the affirmative defense. Steel, 997 S.W.2d at 223; see TEX.R. CIV. P. 166a(b), (c). To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

III. Compliance with 33 U.S.C. section 913(a)

By his first issue, LaCour argues that the trial court erred by finding that (1) section 913(a) applied to his case, and (2) he failed to comply with section 913(a)'s filing requirements. See 33 U.S.C. § 913(a). Section 913(a) provides:

Except as otherwise provided in this section, the right to compensation for disability or death under this chapter shall be barred unless a claim therefore is filed within one year after the injury or death. If payment of compensation has been made without an award on account of such injury or death, a claim may be filed within one year after the date of the last payment. Such claim shall be filed with the deputy commissioner in the compensation district in which such injury or death occurred....

Id. LaCour argues that this provision only applies if the employee is seeking "compensation for disability or death," whereas he is seeking reinstatement and backpay for wrongful termination. See id. § 948a. We agree.

When the language of a statute is clear and unambiguous, we must give the statute its plain and ordinary meaning unless such a construction would lead to absurd results. Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983); see Burton v. Stevedoring Servs. of Am., 196 F.3d 1070, 1072 (9th Cir.1999). Section 913(a) clearly states that it applies to a claim for "compensation for disability or death." 33 U.S.C. § 913(a). Section 902(10) defines "disability" as

incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment; but such term shall mean permanent impairment, determined (to the extent covered thereby) under the guides to the evaluation of permanent impairment promulgated and modified from time to time by the American Medical Association, in the case of an individual whose claim is described in section 910(d)(2) of this title.

33 U.S.C.A. § 902(10). "Disability," as defined by the statute, does not include termination for seeking benefits for an injury. Id. Additionally, "death" is defined as a...