Weeks Marine, Inc. v. Garza

• Decision Date: 22 June 2012
• Docket Number: No. 10–0435.,10–0435.
• Citation: 371 S.W.3d 157,55 Tex. Sup. Ct. J. 942
• Parties: WEEKS MARINE, INC., Petitioner, v. Maximino GARZA, Respondent.
• Court: Texas Supreme Court

371 S.W.3d 157

55 Tex. Sup. Ct. J. 942

WEEKS MARINE, INC., Petitioner,

v.Maximino GARZA, Respondent.

No. 10–0435.

Supreme Court of Texas.

Argued Oct. 4, 2011.

Decided June 22, 2012.

Frank E. Perez, Frank E. Perez & Associates, P.C., Brownsville, TX, Baldemar Garza, The Law Office of Baldemar Garza, Rio Grande City, TX, for Weeks Marine, Inc.

John C. Schwambach Jr., Jeremy Richard Newell, Mark T. Murray, Stevenson & Murray, Houston, Isabel Trevino, Rio Grande City, TX, Felipe Garcia Jr., Garcia–Williams Law Firm, Edinburg, TX, Jack O'Neill, Clements O'Neill Pierce & Nickens, LLP, Houston, TX, for Maximino Garza.

Steven Jon Knight, Chamberlain Hrdlicka White Williams & Aughtry, Houston, TX, for Amicus Curiae Orion Marine Construction.

Chief Justice JEFFERSON delivered the opinion of the Court, joined by Justice HECHT, Justice WAINWRIGHT, Justice GREEN, Justice JOHNSON, and Justice WILLETT.

Justice Story's term for seamen, “wards of the admiralty,” describes the law's belief that workers in the industry are susceptible to unique perils for which special accommodation is required. The common law has long compelled a seaman's employer to provide maintenance (food and lodging) and cure (necessary medical services) when a seaman is hurt while working on his employer's vessel. An employer that does not provide these essentials is liable not only for maintenance and cure, but also compensatory damages.

The worker in this case was injured while on board his employer's anchor barge. A jury found that he was harmed as a result of the employer's negligence, determined that the employer owed $35,000 for maintenance and cure, and awarded $1.12 million as compensation for injuries the accident caused. The employer contests none of these findings.

An employer's failure to provide maintenance and cure may itself cause injury, or it may aggravate an injury the worker sustained on the ship. The jury awarded $2.5 million under this category. We must decide whether the evidence is legally sufficient to support that finding, which the trial court awarded and the court of appeals affirmed. We can find no evidence that the employer's breach of its maintenance-and-cure obligation injured the seaman. For that reason and others we explain below, we affirm in part and reverse in part the court of appeals' judgment.

I. Background

For twenty-eight years, Maximino Garza worked aboard the Tom James, a dredge owned and operated by Weeks Marine. A dredge is a vessel engaged in maintenance work on canals, rivers, and ports, carving deep channels so that large ships can navigate the waterways. Garza worked primarily in the engine room as a watch engineer. But on February 15, 2006, Garza was on board an anchor barge, also owned and operated by Weeks Marine, that was adjacent to the Tom James. Garza's supervisor, John LaGrange, was teaching Garza how to adjust the friction on the barge. As LaGrange held a 2 1/2 inch wide steel friction bar, he told Garza to retrieve tools from the Tom James. Just as Garza set out for the tools, LaGrange released the bar, which sprang forward and struck Garza in the head. Although Garza was wearing a hard hat, the force of the blow nearly knocked him unconscious.

The next day, LaGrange took Garza to see Dr. Glenn Montet, who diagnosed Garza with a contused cranium, a mild concussion, and a cervical sprain. Dr. Montet returned Garza to work with no restrictions. Garza's head and neck pain continued. He returned to Dr. Montet, who again released him with no restrictions. Weeks Marine paid for both visits.

Eventually the pain became severe, and Garza asked his supervisor for permission to seek additional medical attention. Garza began seeing his own doctor, Dr. Fred Perez, in May. Dr. Perez advised Garza not to work and recommended a conservative treatment of therapy, exercise, and medication. The pain did not subside. Dr. Perez next prescribed facet injections. When those did not work, Dr. Perez recommended surgery, which occurred in October 2007, twenty months after the accident. Weeks Marine did not pay for any of this medical care.

Garza sued Weeks Marine, asserting four claims: (1) a Jones Act ¹ negligence claim, (2) a claim that the anchor barge was unseaworthy, (3) a claim for unpaid maintenance and cure, ² and (4) a claim for compensatory damages caused by Weeks Marine's unreasonable failure to pay maintenance and cure. The jury found for Garza on all but the unseaworthiness claim. It found Weeks Marine 80% negligent, Garza 20%, and assessed $1,121,000 in compensatory damages.³For maintenance and cure, the jury found that Weeks Marine unreasonably failed to pay Garza's maintenance and cure and that Garza would reach maximum cure on April 7, 2008.⁴ The jury awarded Garza $35,000 for the unpaid maintenance and cure ⁵ and $2,500,000 for the injuries caused by Weeks Marine's unreasonable failure to pay.⁶ The trial court rendered judgment on the maintenance award ⁷ and both the negligence and unreasonable-failure-to-pay awards. The court did not reduce Garza's award by his percentage of fault because the jury determined that Garza was acting under specific orders at the time of the accident. See Williams v. Brasea, Inc., 497 F.2d 67, 73 (5th Cir.1974) (“[A] seaman may not be contributorily negligent for carrying out orders that result in his own injury....”). The trial court also awarded Garza attorney's fees, expert witness fees, and court costs. SeeTex. Civ. Prac. & Rem.Code § 42.004.

The court of appeals affirmed. 370 S.W.3d 390, 400. It held that allowing Garza to recover for physical pain and mental anguish under both the negligence claim and the unreasonable-failure-to-pay claim did not constitute a double recovery. Id. at 394. Because each award was based on a different theory of liability and because each theory depended on separate and distinct injuries, the court held that the trial court did not err in submitting a damage question for the unreasonable-failure-to-pay claim. The court did not decide whether evidence supported the jury finding that Garza suffered injuries as a result of Weeks Marine's failure to pay and instead held that Weeks Marine waived the issue by failing to adequately brief it. Id. at 396 n. 1. Finally, the court held that there was sufficient evidence to support the jury's findings that Weeks Marine was unreasonable in failing to pay Garza's maintenance and cure and that Garza was acting under specific orders at the time of the accident. Id. at 394. We granted Weeks Marine's petition for review. 54 Tex.Sup.Ct.J. 1494 (July 22, 2011).

Weeks Marine does not challenge the Jones Act negligence award or the award for unpaid maintenance and cure. Instead, it argues that Garza received a double recovery because there is no evidence that its failure to pay maintenance and cure separately injured Garza. Additionally, Weeks Marine argues that no evidence supports the jury finding that Garza was acting under specific orders at the time of the accident. Because the court of appeals held that Weeks Marine waived its challenge to the unreasonable-failure-to-pay award, we address that issue first.

II. Weeks Marine preserved its no evidence challenge.

At the court of appeals, Weeks Marine argued that Garza received a double recovery for his pain and suffering and mental anguish because the jury awarded those damages for both the unreasonable-failure-to-pay claim and the negligence claim. Garza disagreed, contending that noneconomic damages are recoverable under both claims and that he presented evidence to support both awards. When Weeks Marine responded that there was no evidence that its unreasonable failure to pay caused Garza a distinct injury to support the award under that claim, the court of appeals held that Weeks Marine had waived the issue. Weeks Marine made “this argument in relation to the complaint that Garza received a double recovery for the same injury.” 370 S.W.3d at 396 n. 1. But because Weeks Marine “did not raise or brief a complaint that there [was] legally insufficient evidence to support the jury's damage award,” the court considered the issue waived. Id.

“[D]isposing of appeals for harmless procedural defects is disfavored.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex.2008) (per curiam) (citing Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997)). Instead, “[a]ppellate briefs are to be construed reasonably, yet liberally, so that the right to appellate review is not lost by waiver.” Id. Appellate courts must treat the statement of an issue “as covering every subsidiary question that is fairly included.” Tex.R.App. P. 38.1(f). An appellant can preserve error “in the body of their appellate brief,” even if it is not separately listed in the notice of appeal or presented as an issue in the brief. Perry, 272 S.W.3d at 586. Weeks Marine did not separately and specifically present its no evidence challenge in the issues listed in its appellate brief. But a fair reading shows it argued that there was no evidence of a separate injury to support the unreasonable-failure-to-pay award. ⁸ The basis of a double recovery challenge is that a party recovered twice for one injury. See, e.g., Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex.2006) (“ ‘There can be but one recovery for one injury, and the fact that ... there may be more than one theory of liability[ ] does not modify this rule.’ ” (alterations in original) (quoting Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex.1991))). Fairly included in that challenge is the argument that there is no independent evidence of a second injury. Weeks Marine presented this subsidiary question in its second issue.

Within the second issue, Weeks Marine argued that “there was no evidence presented to show Mr. Garza's injuries were aggravated by Weeks' denial to pay maintenance and cure.” Weeks Marine then briefed this argument with appropriate citations to authorities and to the record under the subheading, “Mr....