Maritime Overseas Corp. v. Waiters

• Decision Date: 13 April 1995
• Docket Number: No. 01-94-00178-CV,01-94-00178-CV
• Citation: 923 S.W.2d 36
• Parties: MARITIME OVERSEAS CORPORATION and Transbulk Carriers, Inc., Appellants, v. Thomas C. WAITERS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 36

923 S.W.2d 36

MARITIME OVERSEAS CORPORATION and Transbulk Carriers, Inc., Appellants, v. Thomas C. WAITERS, Appellee.

No. 01-94-00178-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

April 13, 1995.

Jeffrey Bale, Houston, for Appellants.

Harold Eisenman, Houston, Walter Steinman, Bala Cynwyd, PA, for Appellee.

Before O'CONNOR, HUTSON-DUNN and WILSON, JJ.

OPINION

O'CONNOR, Justice.

We are asked to decide (1) whether compensatory and punitive damages can be awarded to an injured seaman in an action under general maritime law for sick leave and unpaid medical bills (maintenance and cure), and (2) whether the actions of the shipowner in cutting off maintenance and cure based on the opinion of its doctor is arbitrary and capricious behavior.

A jury awarded the appellee seaman, Thomas C. Waiters (Waiters), $728 for past due maintenance, $2,725 for past due cure, $1,000.00 in compensatory damages and $10,000 in punitive damages when it found Waiters' employers, the appellants, Maritime Overseas Corporation and Transbulk Carriers, Inc. (Maritime), did not timely pay maintenance and cure. We affirm the portion of the judgment awarding compensatory damages and punitive damages, but reform it to deduct prejudgment interest.

Fact Summary

At 7:00 a.m. on March 29, 1989, Waiters, a steward's assistant aboard the OVERSEAS MARILYN, had just completed his morning tasks of sweeping, mopping, and collecting the trash. He was scheduled to help make breakfast and was hurrying down the stairs carrying a trash bag and mop in one hand and a dustpan in the other. He slipped on the fourth step, fell down the remaining eight steps, and landed on his back. ¹ Waiters got up and reported the accident to the captain, then went to his room, took an aspirin, and went to bed.

Waiters testified he asked the captain to see a doctor, but no arrangements were made that day. Captain Robert Thompson testified that Waiters did not indicate there was an emergency. Two days later, Waiters saw Dr. A.J. Lombardo in New Orleans. Dr. Lombardo told Waiters he should be able to return to duty in five to seven days. On his report, Dr. Lombardo diagnosed Waiters as having a strained back with a contusion, ² and contusions on his left elbow, left wrist, and left middle finger. He recommended that Waiters take hot showers and oral medicine for pain relief and muscle relaxation. Dr. Lombardo said in his report that he wanted to recheck Waiters on April 3. In his April 3, 1989, report, Dr. Lombardo said Waiters was not fit to perform his duties and recommended Waiters see an orthopedic specialist for X-rays. Dr. Gernon Brown, an orthopedic surgeon, examined Waiters on April 10, 1989. In his report, Brown said Waiters had "restriction of motion of the lumbar spine. The patient's symptoms and physical findings are compatible with a contusion of the sacrum and coccygeal area." Dr. Brown recommended Waiters continue with the hot showers and muscle relaxation treatment. Waiters testified that he was in a lot of pain after seeing Dr. Brown and returned to Houston. On April 19, 1989, Waiters saw Dr. Zoran Cupic, another orthopedic surgeon who was recommended by the seafarer's union. Dr. Cupic stated in his report that Waiters was unfit for duty. Dr. Cupic's report stated Waiters had cervical strain and was walking with difficulty. On May 1, 1989, Dr. Cupic stated in his medical log that Waiters had a lot of pain in his lower back. Dr. Cupic recommended Waiters be admitted to the hospital as soon as possible for treatment. On June 22, 1989, Dr. John Andrew, a doctor located by Maritime, examined Waiters and reported that Waiters had reached maximum cure and was fit for duty. In a July 18, 1989, annual physical Dr. Jack Mazow found Waiters fit for duty. Waiters saw Dr. Cupic again on August 9, 1989. In his August 9 report, Dr. Cupic states

he [Waiters] has pain radiating to the left buttock and left lower extremity. The patient is short of funds, however, and apparently nobody is willing to pay for his hospitalization. He would like to go back to work on a trial basis and see how that works. We are going to give him a note to go back to work on a trial basis.

Waiters continued to see Dr. Cupic. Maritime paid for Waiters' maintenance and cure from April 4, 1989, through June 28, 1989. Based on Dr. Andrew's opinion that Waiters had reached maximum cure on June 22, Maritime did not pay maintenance for the period from June 29, 1989, through August 9, 1989, even though it was requested.

Waiters started working aboard ships again on November 5, 1989. He worked short-term shifts on two other ships before joining the M/V SEA-LAND COMMITMENT as a steward/utility on December 4, 1989. While on the SEA-LAND COMMITMENT, Waiters' job was to change and launder linens. On December 28, 1989, the SEA-LAND COMMITMENT encountered rough seas in the North Atlantic. That day Waiters was on linen duty and was trying to carry a sack of dirty linen out of an elevator. Waiters propped open the elevator door with his feet so he could drag the sack out. The ship rolled and the elevator door struck Waiters in the same location on his lower back where he had been injured while aboard the OVERSEAS MARILYN. Waiters told the captain he had a previous injury there and his pain had flared up. Waiters testified the captain told him he could do nothing until they got to port. On January 4, 1990, doctors at a South Carolina medical center examined Waiters and found him unfit for duty. On January 17, 1990, Waiters saw Dr. Cupic, who stated he was unfit for duty. Dr. Cupic continued to find Waiters unfit for duty through April 8, 1990. On January 31, 1990, Dr. Mazow examined Waiters and found him unfit for duty through February 17, 1990. On February 20, 1990, Waiters demanded Maritime pay him maintenance for January 4, 1990, through February 17, 1990, because his injuries were a recurrence of pain from previous back injuries. Maritime paid maintenance for that period. On March 21, 1990, Dr. Andrew examined Waiters and found there was no objective evidence of injury. On April 8, 1990, Waiters went to work on another ship. On another ship on May 14, 1990, Waiters injured his back while lifting 25 pounds of meat. Dr. Cupic found Waiters unfit for duty and continued to see no change in Waiters' condition during repeated visits. Waiters requested that the Sea-Land Corporation, owner of the SEA-LAND COMMITMENT, pay maintenance and cure from February 18, 1990, through April 30, 1990. A February 20, 1990, letter to Maritime stated that Waiters requested Sea-Land to pay maintenance as it was the last vessel he was on. The letter adds that "in order to avoid a possible indemnity claim, if you [Maritime] wish to assume further responsibility for the maintenance payments at this time, we would have no objection." Maritime did not pay maintenance and cure from February 18, 1990, through April 30, 1990.

Waiters sued Maritime under the Jones Act for negligence, and under general maritime law for unseaworthiness, ³ past due maintenance and cure, ⁴ attorney fees, and compensatory and punitive damages. The jury found for Maritime on the issues of seaworthiness and negligence. The jury also found Maritime was arbitrary and capricious in not paying Waiters' maintenance and cure, and awarded punitive damages. The jury also awarded compensatory damages and prejudgment interest to Waiters. On appeal, Maritime challenges the award of compensatory and punitive damages and prejudgment interest.

In our analysis of Maritime's points of error we look to cases from the federal circuit courts of appeal after finding that neither the United States Supreme Court nor the Texas Supreme Court has considered these issues.

A. Compensatory Damages

In points of error one and two, Maritime contends the trial court erred in overruling its motion for judgment notwithstanding the verdict, motion to disregard the jury findings, motion for directed verdict, and objections to the jury charge because Waiters was not entitled to compensatory damages of $1,000.

Maritime argues Waiters presented no evidence that he suffered an aggravation of his injury because he did not receive maintenance and cure. Waiters contends the evidence showed he would have been hospitalized had his benefits not been cut off, and that he suffered financial and psychological harm.

In question number nine, the jury was asked,

What sum of money, if any, do you find would fairly and reasonably compensate plaintiff for his damages, if any, that you find resulted from such unreasonable conduct? Consider only such losses suffered or incurred by plaintiff as a direct result of such conduct. Do not include any amounts awarded in other questions in this charge.

Answer: 1,000.

Maintenance and cure is designed to provide a seaman with food and lodging when he becomes sick or injured in the ship's service. Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 1000, 8 L.Ed.2d 88 (1962). A seaman is entitled to maintenance and cure until the date of maximum possible cure, when no further treatment will improve the condition. Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir.1990). The obligation to pay maintenance arises out of the contractual relationship between the seaman and his employer, and is designed to ensure his recovery if he is injured or becomes ill while in the service of the ship. Vaughan, 369 U.S. at 532, 82 S.Ct. at 1000-01.

When a seaman becomes ill or is injured while in the service of his ship, the shipowner must pay him maintenance and cure whether or not the shipowner was at fault or the ship unseaworthy. Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir.1987). Upon receiving a claim for maintenance and cure, the shipowner need not immediately begin payments; the shipowner is entitled to investigate and corroborate the claim. Id. If, after investigation, the shipowner unreasonably rejects the claim, when in fact the seaman is due...