Because the judgment provided an impermissible double recovery for medical expenses and cure, the injured worker was to elect between the two; the trial court did not err by including court reporter’s charges for copies of trial testimony used during trial, for purposes of tex. R. Civ. P. 131 And tex. Civ. Prac. & Rem. Code ann. § 31.007(B)

WEEKS Marine, Inc., Appellant v. Edgar Eduardo BARRERA, Appellee

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO
2010 Tex. App. LEXIS 438

January 27, 2010, Filed

PROCEDURAL POSTURE:

PROCEDURAL POSTURE: Appellant company challenged a decision of the 381st Judicial District Court, Starr County (Texas), which (1) entered judgment for appellee worker for damages, including medical expenses, cure, attorney fees, and costs under Tex. Civ. Prac. & Rem. Code Ann. § 31.007(b) (2008), in the worker’s suit alleging negligence and unseaworthiness, (2) denied a mistrial, (3) allowed certain testimony, and (4) excluded certain photographs.

OVERVIEW:

OVERVIEW: The worker was injured while working on a vessel owned by the company. The worker brought this action and was awarded damages. The court affirmed in part, reversed in part, and remanded. The medical expenses and the cure award were for the same damages for the same time period for the worker’s injuries caused by his accident. There was no reasonable basis to find that the two awards were anything other than a double recovery for the same damages, such that the court reversed and remanded for the worker to elect one award or the other. The trial court did not abuse its discretion by including court reporter’s charges for copies of trial testimony that was used during the trial, for purposes of Tex. R. Civ. P. 131 and Tex. Civ. Prac. & Rem. Code Ann. § 31.007(b) (2008). Costs awarded for an interpreter were also proper. The company did not explain on what issue the dates on certain photographs were relevant and the company did not show how the exclusion of the dates on the back of the photographs led to the rendition of an improper judgment for purposes of Tex. R. App. P. 44.1, such that the company’s claim in this regard failed.

OUTCOME:

OUTCOME: The court reversed the two awards for medical expenses and cure and on remand, the worker was to elect between the two. The court reversed the attorney fee award, which was remanded for a determination of the amount of fees if the worker elected the cure award and waived medical expenses under the negligence claim. The trial court did not err in awarding costs, denying a mistrial, allowing certain testimony, and excluding certain photographs.

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In a case in which a seaman sued his employer seeking compensation for negligence under the jones act and under the general maritime doctrine of unseaworthiness, the employer had a right to a jury trial of the seaman’s claims.

JUSTIN ENDICOTT, Respondent, v. ICICLE SEAFOODS, INC., Appellant.

SUPREME COURT OF WASHINGTON
167 Wn.2d 873; 2010 Wash. LEXIS 2

January 7, 2010, Filed

PROCEDURAL POSTURE:

PROCEDURAL POSTURE: A fish cart crushed plaintiff seaman’s arm while he was working aboard defendant employer’s ship. The seaman sued the employer, seeking compensation for negligence under the Jones Act and under the general maritime doctrine of unseaworthiness. After a bench trial, the King County Superior Court, Washington, ruled for the seaman on both claims and awarded him damages and prejudgment interest. The employer appealed.

OVERVIEW:

OVERVIEW: This case required the court to decide whether a defendant in a Jones Act and general maritime suit filed in state court has a right to a jury trial and whether prejudgment interest is available in such a case. The court held that the employer had a right to a jury trial of the seaman’s claims. The Jones Act does not provide the plaintiff a substantive federal right to determine the mode (jury/nonjury) of trial. The Jones Act entitles the plaintiff to elect only the jurisdictional basis for the suit. Once the plaintiff has chosen a suit at law in state court, state procedural law determines whether the parties may demand a jury trial. The Washington Constitution affords Jones Act litigants a jury trial right because the Jones Act is rooted in negligence and so fits within the jury trial right’s 1889 purview. The seaman had no substantive right to a nonjury trial. The court further held that prejudgment interest is available in mixed maritime cases. If the employer was concerned that it might have to pay interest on damages arising solely out of the Jones Act claim, it could ask for a special verdict form apportioning damages.

OUTCOME:

OUTCOME: The judgment below was vacated, and the case was remanded for a new trial.

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The American rule barring the shifting of attorneys’ fees was a feature of maritime law, which governed the interpretation of the parties’ dredging contract, and the georgia prompt payment act (gppa) was in direct conflict with that principle, and the party prevailing in the suit involving the contract was not entitled to fees under the gppa.

MISENER MARINE CONSTRUCTION, INC., Plaintiff-Counter-Defendant-Counter-Claimant-Appellee, versus NORFOLK DREDGING COMPANY, et. al.

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

January 21, 2010, Filed

PROCEDURAL POSTURE:

PROCEDURAL POSTURE: Plaintiff general contractor, a marine construction company, sued defendant subcontractor, a dredging company, for negligence and breaches of contract and of warranty. Defendant counterclaimed for payment on the contract, interest, and attorneys’ fees under the Georgia Prompt Pay Act (GPPA), O.C.G.A. § 13-11-1 et seq. Defendant prevailed, but the U.S. District Court for the Southern District of Georgia denied its fee request. Defendant appealed.

OVERVIEW:

OVERVIEW: The dredging contract at issue did not contain a choice-of-law provision nor a provision providing for attorneys’ fees. The contract was maritime in nature and thus the district court properly applied substantive maritime law. Defendant’s argument that Eleventh Circuit precedent supported the application of the GPPA to dredging cases was based on a misinterpretation of the court’s precedent and had no merit. The GPPA did not supplement substantive maritime law. The American Rule that each party generally had to bear its own attorneys’ fees was a characteristic feature of maritime law. The GPPA would have contravened that established rule of maritime law. Further, a clearly established exception existed wherein defendant was free to contract for the indemnification of attorneys’ fees but chose not to include such a provision in the contract, and the court refused to give defendant a second bite at the apple by way of the GPPA. The court was not about to allow defendant to alter the terms of its contract through the retroactive injection of a state law that contravened a principle of substantive maritime law.

OUTCOME:

OUTCOME: The court affirmed the judgment of the district court.

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There was no manifest error in a trial court’s judgment denying an employee’s request for maintenance and cure because the trial court’s determination that the employee was not credible was not clearly wrong where the unwitnessed incident itself was questionable and where the testimony of the employee’s coworkers cast doubts on his testimony.

ALTON J. COTTON, JR. VERSUS DELTA QUEEN STEAMBOAT COMPANY, INC. AND DELTA QUEEN STEAMBOAT, LLC

COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT

January 6, 2010, Decided

PROCEDURAL POSTURE:

PROCEDURAL POSTURE: Plaintiff employee filed an action against defendant employer under the Jones Act, 46 U.S.C.S. § 30104. The employer filed a reconventional demand. The employee refused the employer’s offer of judgment under La. Code Civ. Proc. Ann. art. 970. The Civil District Court, Orleans Parish (Louisiana), dismissed with prejudice the employee’s claims and denied the employer’s subsequent motion for judgment. Both parties appealed.

OVERVIEW:

OVERVIEW: There was no manifest error in the trial court’s judgment denying the employee’s request for maintenance and cure. The trial court’s determination that the employee was not credible was not clearly wrong. The incident itself was questionable. It was unwitnessed and the testimony of his coworkers cast doubts on the employee’s testimony. The employee had an addiction to medication. He had a previous lumbar injury for which he received medical treatment and medication, which condition he failed to report when he was hired by the employer. The trial court’s judgment was silent as to the disposition of the reconventional demand and, therefore, the demand was deemed denied. The employer cited no authority for the proposition that it was entitled to restitution from the employee for maintenance and cure payments which it unnecessarily paid to him or on his behalf. There was no cause of action against a seaman for restitution of maintenance and cure payments already made. Finally, the trial court was correct in denying relief on the employer’s demand arising from its offer of judgment pursuant to La. Code Civ. Proc. Ann. art. 970.

OUTCOME:

OUTCOME: The court affirmed the judgment.

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When an employee sued an owner of a maritime salvage business for unpaid wages and unreimbursed expenses, admiralty and maritime jurisdiction alone did not permit removal because of the savings-to-suitors clause of 28 u.S.C.S. § 1333(1), since the employer did not show the employee’s state law claims frustrated a fundamental tenet of admiralty law.

JOHN RAFTER, PLAINTIFF v. WILLIAM STEVENSON, DEFENDANT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2010 U.S. Dist. LEXIS 7753

January 28, 2010, Decided

PROCEDURAL POSTURE:

PROCEDURAL POSTURE: Plaintiff employee sued defendant employer in state court for unpaid wages and unreimbursed expenses. The employer removed to federal court, asserting admiralty and maritime jurisdiction, and moved to amend his notice of removal to assert federal question jurisdiction. The employee moved to remand to state court and moved for attorney fees and costs, under 28 U.S.C.S. § 1447(c).

OVERVIEW:

OVERVIEW: The employer’s motion to amend his removal notice was untimely because (1) it was filed after the 30-day period in 28 U.S.C.S. § 1446(b), and (2) it asserted federal question jurisdiction, instead of seeking to clarify admiralty and maritime jurisdiction first asserted. No federal question jurisdiction was shown because (1) no federal question was pled, under 28 U.S.C.S. § 1331, (2) an attempt to assert a federal counterclaim did not create federal jurisdiction, and (3) a federal defense, including preemption, did not create such jurisdiction, as nothing showed preemption. Removal was improper because (1) the complaint asserted no federal claim, (2) the employee’s right to relief did not depend on federal law, as he could not seek the remedies in 46 U.S.C.S. §§ 10504 or 10313, (3) federal admiralty and maritime jurisdiction did not permit removal, and (4) his claims did not frustrate a fundamental tenet of admiralty law, so the saving to suitors clause in 28 U.S.C.S. § 1333(1) required remand. The employee was entitled to attorney fees and costs because the employer lacked an objectively reasonable basis for removing to federal court and resisting remand.

OUTCOME:

OUTCOME: The employer’s motion to amend was denied, the employee’s motion to remand was granted, and the employee’s motion for attorney fees and costs was granted.