An employee testified that he was no longer able to work after the accident and the employer knew of a medical opinion that the accident aggravated the employee’s neck condition, such that the evidence was legally sufficient to support the finding that the employer acted unreasonably in denying the employee’s maintenance and cure claim.
WEEKS Marine, Inc., Appellant v. Maximino GARZA, Appellee
COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO
2010 Tex. App. LEXIS 2894
April 21, 2010, Delivered
Appellate employer challenged a decision of the 381st Judicial District Court, Starr County (Texas), which rendered judgment in favor of appellee employee under the Jones Act and awarded the employee tort damages, compensation for failure to pay maintenance and cure, maintenance, attorney fees, and expert fees under Tex. Civ. Prac. & Rem. Code Ann. § 42.004 (2008).
The employee was injured while working on a dredge and barge. The trial court awarded the employee damages and the court affirmed on appeal. There was no double recovery as the employer claimed because the judgment awarded damages for medical expenses and did not award damages for cure. The award of both the negligence damages and the damages that resulted from the unreasonable failure to provide maintenance and cure was not a double recovery. There was some evidence about which reasonable minds could have differed that supported the finding that the employer acted unreasonably in failing to pay maintenance and cure. The employer testified that he was no longer able to work after the accident and the employer was aware of a medical opinion that the accident aggravated the employee’s neck condition, for which the employee required surgery. When the employee went to retrieve his tools he was struck on the head by the friction bar, which supported the application of the specific exception doctrine to this case. The judgment was more than 120 percent of the rejected offer. The recovery of litigation costs under Tex. Civ. Prac. & Rem. Code Ann. § 42.004 (2008) was proper.
The court affirmed.
Lipcon, Margulies & Alsina, P.A. has trial court’s order reversed and remanded, where Jones Act Seafarer’s claims based on prolonged exposure to asbestos aboard Carnival Corporation vessels was dismissed to Italy based on forum non Conveniens. Third District Court of Appeal found that Carnival’s Motion to Dismiss for forum non Conveniens was untimely as it was filed over 1,000 days late and that dismissal was contrary to the interests which the doctrine of forum non Conveniens seeks to preserve, such as preventing the wasting of resources.
Giovanna Settimi Caraffa, individually, and as personal representative of the Estate of Benedetto Emanuelle Caraffa, Appellant, vs. Carnival Corporation, Appellee.
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2010 Fla. App. LEXIS 5278; 35 Fla. L. Weekly D 892
April 21, 2010, Opinion Filed
Appellant, the decedent’s spouse (spouse), sought review of the decision of the Circuit Court for Miami-Dade County (Florida), which found in favor of appellee ship owner (owner), and dismissed the spouse’s action on forum non conveniens grounds alleging that her husband died as a result of prolonged exposure to asbestos while working on the owner’s ships.
The spouse filed the underlying action on behalf of her deceased husband, alleging that he died as a result of prolonged exposure to asbestos while working on ships that the owner owned and controlled. The owner, a corporation, received service of process on January 19, 2006. Currently, the spouse appealed the dismissal of her complaint on forum non conveniens grounds. The appellate court reversed and remanded, finding that the motion to dismiss filed by the owner was untimely under Fla. R. Civ. P. 1.061(g). The owner served its motion to dismiss over 1,000 days after service of process, well beyond the 60-day time limitation period set forth in R. 1.061(g). Additionally, the appellate court did not agree with the owner that the trial court adopted the owner’s forum non conveniens argument by implication when it ultimately dismissed the action.
The appellate court reversed the order of dismissal and remanded for further proceedings consistent with its opinion.
Order awarding an employee future medical damage relating to his shoulder problem in action for Jones Act negligence was overturned and case was remanded for new trial because there was no evidence that he would in reasonable probability require future medical care for shoulder problem, and no evidence as to the estimated cost of such medical care.
WESTERNGECO RESOURCES INC., Appellant v. DAROLD BURCH, Appellee
COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON
2010 Tex. App. LEXIS 2324
April 1, 2010, Opinion Filed
Appellant employer sought review of an order from the 270th District Court, Harris County (Texas), which awarded appellee employee damages in an action for negligence under the Jones Act, 46 U.S.C.S. § 30104, unseaworthiness under general maritime law, and vessel negligence under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.S. § 901.
While working in a vessel’s slipway, the employee stood up from a squatting position and hit his head on an I-beam. He brought an action against the employer. The trial court awarded damages to the employee. On appeal, the court concluded that the record contained some evidence of a causal nexus between the occurrence and the employee’s shoulder problem. However, there was no evidence in the record to support a damage award for future medical damage relating to the employee’s shoulder problem. The evidence presented by the employee was speculative at best. There was no evidence that he would in reasonable probability require future medical care for his shoulder problem, and no evidence as to the estimated cost of such medical care. Accordingly, the trial court erred under Tex. R. Civ. P. 277 by refusing to submit separate damage questions to the jury relating to his neck problem and his shoulder problem. The error was reversible because the court could not determine which portion of the single award for future medical care was attributable to his neck problem and which portion was attributable to his shoulder problem.
The court reversed the judgment of the trial court and remanded the case for a new trial on liability and damages.
Public and private interest factors under Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b)(5) (2008) weighed strongly against forum non conveniens dismissal because a worker injured on a rig in Singapore was an American citizen employed by a Texas company, the rig had been moved to the Gulf of Mexico, and many documents and witnesses were in Texas.
HARRISON VINSON, Appellant v. AMERICAN BUREAU OF SHIPPING, GLOBALSANTAFE DRILLING CORPORATION, GLOBALSANTAFE CORPORATION, GLOBALSANTAFE OFFSHORE SERVICES, INC., GLOBALSANTAFE OPERATIONS, NATIONAL OILWELL L.P., NATIONAL OILWELL VARCO, L.P., AND NATIONAL OILWELL NORWAY, A.S. (F/K/A HYDRALIFT A.S.A.), Appellees
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2010 Tex. App. LEXIS 2587
April 8, 2010, Opinion Issued
Appellant worker sought review of an order from the 152nd District Court, Harris County (Texas), which dismissed, under the doctrine of forum non conveniens, his personal injury lawsuit against appellee drilling companies arising from the collapse of a derrick on a drilling rig.
The injuries occurred in a shipyard in Singapore. The worker’s employer, which owned the drilling rig, was based in Texas and provided much of his medical care in Alabama and Texas. The worker alleged that the relevant persons and documents pertaining to the investigation of the accident were located in Texas. Stating that the dismissal of a case on grounds of forum non conveniens was a final appealable judgment, the court held that a special appearance filed after the dismissal did not destroy the finality of the trial court’s dismissal order. The court determined that Singapore offered an adequate alternative forum under Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b)(1), (2) (2008) because it would allow the worker some recovery for the personal injuries he sustained, although it would not provide a trial by jury. The public and private interest factors under § 71.051(b)(5) weighed strongly in favor of the Texas forum because the worker’s medical records were in Alabama and Texas, the drilling rig had been moved to the Gulf of Mexico, most of the relevant documents and witnesses were in Texas, and the worker was an American citizen injured while working for a Texas company.
The court reversed the dismissal order and remanded for further proceedings.
the trial court did not clearly err in concluding that a lump-sum award of future maintenance for a fixed period and of future cure for one remaining procedure and rehabilitation, could be granted because they were of a kind and for a period definitely ascertained or ascertainable.
DIAMOND OFFSHORE MANAGEMENT CO. AND DIAMOND OFFSHORE SERVICES CO., Appellants v. JONATHAN CUMMINGS, Appellee
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2010 Tex. App. LEXIS 2954
April 22, 2010, Opinion Issued
Appellants, a company and a jack-up rig owner, challenged a decision of the 190th District Court, Harris County (Texas), which (1) awarded appellee worker damages for future cure and maintenance, and (2) determined that his maximum medical improvement (MMI) would be reach six month from the start of trial.
The worker sued after being injured. He was awarded damages for future cure and maintenance. The court affirmed the maintenance award and the declaration of the date of MMI and reversed that portion awarding cure. Assuming without deciding that the trial court implicitly found that the worker did not willfully reject recommended back surgery, that implicit finding was not clearly erroneous. The evidence supported the determination that MMI would be reached in six months. The trial court could reasonably have credited a doctor’s testimony that he believed that the worker would reach MMI six months after his last surgery. The trial court entered no findings of fact as to how it reached the total sum that it awarded for future cure. The only evidence of the amount of future medical expenses came from a doctor’s deposition testimony, which did not support the full amount awarded for the sole recommended surgery that remained. Many of the costs related to the back surgery expressed in a doctor’s testimony can be separated from costs related to the neck surgery, but some could not, and the trial court clearly erred in concluding that the amount of future cure was a certain amount.
The court affirmed the judgment awarding maintenance and declaring the MMI date. The court reversed the judgment awarding cure. The remainder of the judgment remained intact. The court remanded the case for further proceedings.
United States Supreme court finds that where the parties stipulated that an arbitration clause was silent with respect to class arbitration, an arbitration panel exceeded its powers under the Federal Arbitration Act by finding that the clause allowed class arbitration; the differences between bilateral and class arbitration were too great to presume that silence constituted consent.
STOLT-NIELSEN S. A., ET AL., PETITIONERS v. ANIMALFEEDS INTERNATIONAL CORP.
SUPREME COURT OF THE UNITED STATES
2010 U.S. LEXIS 3672
April 27, 2010, Decided
Petitioner shipping companies filed an application in district court under 9 U.S.C.S. § 10(a)(4) of the Federal Arbitration Act (FAA), 9 U.S.C.S. § 1 et seq., to vacate an arbitration award finding that respondent customer could pursue class arbitration. The district court vacated the award, and the United States Court of Appeals for the Second Circuit reversed. The Supreme Court granted certiorari.
The customer’s antitrust claims against the companies were subject to arbitration under an arbitration clause in the parties’ charter party. The parties stipulated that the arbitration clause was silent with respect to class arbitration. The Court held that the arbitration panel exceeded its powers by concluding that the arbitration clause allowed for class arbitration. The panel did not consider whether the FAA, maritime law, or New York law allowed class arbitration in the absence of express consent, but instead impermissibly imposed its own view of sound policy regarding class arbitration. A party could not be compelled under the FAA to submit to class arbitration absent a contractual basis for concluding that the party had agreed to do so. The differences between bilateral and class arbitration were too great to allow the arbitrators to presume that the parties’ silence on the issue of class arbitration constituted consent. Because the question was whether the parties had agreed to authorize class arbitration, and the parties had stipulated that there was no agreement on that question, the parties could not be compelled to submit to class arbitration.
The judgment of the court of appeals was reversed, and the matter was remanded for further proceedings. 5-3 Decision; 1 Dissent.