Weeks Marine, Inc. v. Garza, 04–08–00660–CV.

• Court: Court of Appeals of Texas
• Writing for the Court: Opinion by: STEVEN C. HILBIG
• Citation: 370 S.W.3d 390
• Parties: WEEKS MARINE, INC., Appellant, v. Maximino GARZA, Appellee.
• Docket Number: No. 04–08–00660–CV.,04–08–00660–CV.
• Decision Date: 21 April 2010

370 S.W.3d 390

WEEKS MARINE, INC., Appellant,
v.
Maximino GARZA, Appellee.

No. 04–08–00660–CV.

Court of Appeals of Texas,
San Antonio.

April 21, 2010.

[370 S.W.3d 393]

Frank E. Perez, Frank E. Perez & Associates, P.C., Brownsville, TX, for Appellant.

John C. Schwambach, Jr., Jeremy Newell, John W. Stevenson, Jr., John Stevenson & Associates, P.C., Houston, TX, for Appellee.

Sitting: PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.

MEMORANDUM OPINION
Opinion by: STEVEN C. HILBIG, Justice.

Weeks Marine, Inc. appeals the judgment rendered in Maximino Garza's favor under the Jones Act and for claims related to a seaman's right to maintenance and cure. The judgment awarded Garza $1,121,000.00 in tort damages, $2,500,000.00 as compensation for failure to pay maintenance and cure, $15,000.00 in maintenance, $73,500.00 in attorney's fees, and $6,110.36 in experts' fees. We affirm the judgment.

Background

Garza was injured while working as crew member on vessels owned and operated by Weeks. The parties stipulated Weeks was a Jones Act employer and the owner and operator of the dredge called the TOM JAMES and a barge called the Skadgit. The parties also stipulated that Garza sustained an injury to his neck and head on February 15, 2006, while on the Skadgit, but the extent of the injuries were

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disputed. Garza normally worked as an engineer on the TOM JAMES, but on the day of the accident he was being trained by his supervisor on how to adjust a friction bar on the Skadgit. During training, Garza's supervisor told him to go get some tools. As Garza left to retrieve the tools, his supervisor dropped the friction lever, which then struck Garza's hard hat.

Garza went to the doctor the next day, underwent an MRI, and was diagnosed with a contused cranium, mild concussion, and cervical sprain. Garza was released for work with no restrictions. Weeks paid for the medical visit and exams. Garza returned to work for a short period of time, but had daily complaints of head and neck pain. Garza decided he could no longer work with the pain and sought permission from his supervisor to seek medical attention. Garza left work and testified his supervisor told him to go and take care of himself. Shortly thereafter, Garza filed suit against Weeks alleging four separate claims: a negligence claim under the Jones Act; a seaman's claim for maintenance and cure; a claim the vessel was unseaworthy; and a claim for compensatory damages for Weeks's unreasonable failure to pay maintenance and cure.

The jury found in Garza's favor on all claims except the seaworthiness claim. The jury also found Garza was acting under specific orders at the time of the accident and was twenty percent at fault for the accident. The damages awarded pursuant to the negligence claim included medical expenses, loss of income, impairment of earning capacity, physical pain, and mental anguish. The jury also awarded Garza his maintenance and cure under his seaman's claim. Finally, the jury awarded Garza damages for the physical pain and mental anguish that resulted from Weeks's unreasonable failure to pay maintenance and cure. Garza waived the cure award because it represented the same element of damage as the medical expenses awarded under the negligence claim. The trial court rendered judgment on the maintenance award and all elements of damages under the negligence and unreasonable failure to pay maintenance and cure claims. Based on the jury's finding that Garza was acting in response to a specific order at the time of the accident, the trial court did not reduce Garza's damage award due to the twenty percent of fault attributed to him.

Weeks contends: (1) the trial court erred in rendering judgment for tort damages for all of the damages awarded because it constitutes a double recovery of the same damage elements; (2) the evidence is legally insufficient to support the jury's finding that Weeks acted unreasonably in denying the maintenance and cure claim; (3) the trial court erred in submitting an instruction on aggravation or activation of injury; (4) the evidence is legally insufficient to support the finding that Garza was acting under specific orders at the time of the accident; (5) Garza's entire award should be reduced by twenty percent and (6) the award of attorney's fees and costs should be deleted from the judgment.

Double Recovery

Weeks argues the judgment awarded Garza a double recovery for the same elements of damage under different causes. Under the “one satisfaction rule,” Texas prohibits this type of recovery if it constitutes a “double recovery.” See Crown Life Ins., Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000); Baribeau v. Gustafson, 107 S.W.3d 52, 60 (Tex.App.-San Antonio 2003, pet. denied), cert. denied,543 U.S. 871, 125 S.Ct. 272, 160 L.Ed.2d 118 (2004). A double recovery occurs when a plaintiff obtains more than one recovery

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for the same injury or loss. Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex.1998); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex.1991). A plaintiff is entitled to only one recovery for any damages suffered because of one particular injury. Utts v. Short, 81 S.W.3d 822, 831 (Tex.2002); Casteel, 22 S.W.3d at 390;Baribeau, 107 S.W.3d at 60. However, when a plaintiff pleads multiple theories of liability, a judgment for damages on more than one theory is proper if the theories depend on separate and distinct injuries and there are separate and distinct damage findings made as to each theory. Beaumont v. Basham, 205 S.W.3d 608, 614–615 (Tex.App.-Waco 2006, pet. denied); see Baribeau, 107 S.W.3d at 60 (citing Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex.1987)).

Weeks claims the jury's award of medical expenses under the negligence award is the same element of damage as the cure award. Although Weeks is correct that the elements of damage are the same, there is no double recovery because the trial court's judgment awards damages to Garza only for his medical expenses and does not award him damages for cure.

Weeks also asserts the award of lost wages under the negligence claim and the maintenance award under the seaman's claim is a double recovery of the same damages. Weeks is incorrect because maintenance is not duplicative of lost wages. Morel v. Sabine Towing & Transp. Co., 669 F.2d 345, 346 (5th Cir.1982). “Maintenance is the equivalent of the food and lodging to which a seaman is entitled while at sea.... Maintenance is neither a substitute for wages nor is it to be considered in lieu of a seaman's wages, in whole or in part.” Id. Maintenance can be awarded in addition to past and future wages. Colburn v. Bunge Towing, Inc., 883 F.2d 372, 378 (5th Cir.1989).

Next, Weeks contends question 13, which asked the jury to award mental anguish and physical pain damages that resulted from Weeks's failure to pay maintenance and cure, should not have been submitted to the jury because it included the same damage elements as submitted in question 7. Question 7 asked the jury to award physical pain and mental anguish damages for Garza's injuries sustained as a result of the accident on February 15, 2006. Although both questions submit physical pain and mental anguish elements of damage, each is based on a different theory of liability. See Beaumont, 205 S.W.3d at 614–615;Baribeau, 107 S.W.3d at 60–61 (citing Birchfield, 747 S.W.2d at 367). Question 7 relates to a seaman's claim under the Jones Act for an injury in the course of his employment. See Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (citing 46 U.S.C.App. § 688(a)). Question 13 is based on a seaman's right to compensatory damages when the ship-owner is responsible for the seaman's maintenance and cure, but acts unreasonably in failing to pay the claim. See Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir.1987). Garza pled both a Jones Act negligence claim and a claim based on Weeks's unreasonable failure to pay maintenance and cure, and question 7 and 13 inquired about damages for each of the two separate and distinct causes of action. The trial court did not err in submitting both questions.

Similarly, Weeks argues Garza is not entitled to recover both the mental anguish and physical pain and suffering awards found in response to questions 7 and 13 because it provides a double recovery for the same injury. To the contrary, the charge submitted two different damage questions for two different causes of

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action. Question 7 specifically asked the jury to compensate Garza for his injuries that resulted from the accident on February 15, 2006. Question 13 asked the jury to compensate Garza for his injuries that resulted from Weeks's failure to pay maintenance and cure. Garza pled and submitted different causes of action, and obtained separate jury findings on damages under each theory. The theories of liability depend on separate and distinct injuries. See Morales, 829 F.2d at 1358. The award of both the negligence damages and the damages that resulted from the unreasonable failure to provide maintenance and cure is not a double recovery.¹

Unreasonable Denial of Maintenance and Cure Claim

Weeks's next complaints relate to Garza's claim that he was unreasonably denied maintenance and cure. Garza requested medical treatment after the accident on February 15, 2006. Weeks authorized initial medical treatment for Garza, but after one physician released him to return to work, Weeks denied all additional requests for medical treatment and his seaman's maintenance and cure. Maintenance is a living allowance paid as long as the seaman is not hospitalized and has not reached the point of maximum cure. Maritime Overseas Corp. v. Thomas, 681 S.W.2d 160, 161 (Tex. App.-Houston [14th Dist.] 1984, no writ). Cure pays therapeutic, medical, and hospital expenses not otherwise provided to the seaman until the...