Court of Appeals of Texas, Houston (14th Dist.).
Robin Blaine ANDREWS, Individually and as Personal Representative of the Heirs and Estate of Garland Dale Pepper, Deceased, and Garland Pepper, Jr., Susan Andrews, Kimberly Brown and Carolyn Walker, Appellants
JOHN CRANE, INC., Appellee
Opinions filed June 18, 2020
On Appeal from the 11th District Court, Harris County, Texas, Trial Court Cause No. 2014-02782-ASB
Attorneys & Firms
Darren Patrick McDowell, Dallas, for Appellants.
Laura Ellis Kugler, Dallas, for Appellee.
Panel consists of Justices Zimmerer
Jerry Zimmerer, Justice
*1 Appellants, Robin Blaine Andrews, Individually and as the Personal Representative of the heirs and estate of Garland Dale Pepper, deceased, and Garland Pepper, Jr., Susan Andrews, Kimberly Brown, and Carolyn Walker, appeal from a take-nothing judgment signed after the trial court granted a partial summary judgment on the question of the damages recoverable by appellants, and a subsequent bench trial on stipulated evidence. Concluding that the trial court correctly determined that maritime law applied but it erred when it granted the partial summary judgment on the damages recoverable by appellants, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion.
The facts in this case are undisputed. This is a products liability action based on decedent Garland Pepper’s contracting pleural mesothelioma after allegedly being exposed to appellee John Crane, Inc.’s (JCI) asbestos-containing sheet gasket material during his service in the United States Navy. While Pepper served in the Navy, he worked on the high seas, in territorial waters, and in dry dock. Pepper estimated that eighty percent of his work was done while the ship was underway, either in territorial waters or on the high seas, and twenty percent was performed in dry dock.
The only sheet-gasket material Pepper recalled using was JCI style 2150. Pepper testified that there was dust created whenever he cut JCI asbestos sheets for steam-valve gaskets. JCI’s corporate representatives concede that JCI’s 2150 gaskets were sold to the Navy during all relevant time periods. Style 2150 contained seventy to eighty percent asbestos and was recommended for both high-pressure and low-pressure steam systems.
This case was transferred to the asbestos multi-district litigation court in Harris County where it was initially set for trial on September 7, 2015. Pepper died in 2014 and the case was amended to substitute appellants and add claims for wrongful death. JCI moved for summary judgment in July 2015 arguing that appellants could not satisfy the causation element of their claims against JCI. While JCI moved for summary judgment under Texas law, it also stated in the motion that “we have not asked that the Court apply any other law than Texas law, however a motion to apply maritime law may be filed.” JCI continued “regardless of whether the Court applies Texas law or maritime law, [appellants] cannot satisfy the causation element of their claims against [JCI].” In addition, JCI included a section in the motion arguing that appellants could not “satisfy the causation element of their claims against [JCI] under maritime law.” Appellants responded to JCI’s motion for summary judgment arguing against summary judgment under Texas law.
Appellants subsequently filed an amended petition on August 3, 2015, just over a month before the case was originally scheduled to go to trial. Eleven days later, JCI formally moved for the first time for the application of maritime law. JCI followed this up a few days later with special exceptions to several of appellants’ causes of action based on its interpretation of the application of maritime law and the Death On the High Seas Act (DOHSA). See 46 U.S.C. § 30301 et. seq. Then, on August 20, 2015, JCI filed its second amended answer adding the defense that maritime law preempted the application of Texas law on appellants’ claims.
*2 The case did not go to trial as originally scheduled. Instead, the trial court signed an order staying the case based on Tex. Civ. Prac. & Rem. Code § 90.055 (permitting a defendant to request a stay of proceedings to allow a claimant to make a claim against an asbestos or silica trust). The case remained stayed until May 24, 2016 when the trial court signed an order setting a new trial date of January 23, 2017. The record establishes that the case was reset again when the trial court granted JCI’s motion for continuance. The new trial setting was February 6, 2017. While the case did not go to trial that day, the record does not explain the reason it did not do so.
Once the question of the application of maritime law was introduced into the case, the briefing on the applicability of maritime law dominated the remainder of the case. The parties did extensive briefing on the subject spanning hundreds of pages in the appellate record. The trial court eventually determined that maritime law applied to appellants’ claims and that maritime law precluded the recovery of non-pecuniary damages, specifically Pepper’s pre-death pain and suffering. Based on the parties’ stipulation that, with non-pecuniary damages precluded by the trial court’s ruling, the amount of prior settlements exceeded the maximum possible recovery of pecuniary damages, the trial court signed a take-nothing final judgment for JCI. This appeal followed.
I. JCI did not waive the application of maritime law.
Appellants argue in their first issue that JCI waived the application of federal maritime law in this case because JCI did not plead preemption in its original answer. Then, recognizing that JCI added preemption in an amended answer, appellants argue that the trial court abused its discretion when it allowed JCI to add the defense. JCI responds that it did not waive the application of maritime law because it timely filed its amended answer. It further responds that the trial court did not abuse its discretion because appellants cannot show they were prejudiced by the amended answer. We agree with JCI.
A party may waive the defense that a claim is preempted by federal law. See Id.
The general rule regarding pleading amendments is that the parties may freely amend if the amended pleading is filed at least seven days before trial. See Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990) (stating burden for showing surprise is on party opposing the amendment).
*3 We turn first to appellants’ contention that JCI’s failure to include maritime law in its original answer waived the application of maritime law in this case. Appellants have cited no authority supporting their contention that preemption must be pleaded in a defendant’s original answer or it is waived. See PHI, Inc. v. LeBlanc, No. 13-14-00097-CV, 2016 WL 747930, at *9 (Tex. App.—Corpus Christi Feb. 25, 2016, pet. denied) (mem. op.) (“Thus, in the absence of any authority supporting a conclusion that under these circumstances a party waives the application of maritime law, we cannot conclude that the trial court abused its discretion by determining that LeBlanc had not waived it.”). We therefore reject appellants’ contention that JCI’s failure to include maritime law as a defense in its original answer, standing alone, demonstrates JCI waived maritime law as a defense.
Appellants next argue that JCI’s delay in adding the preemption defense demonstrates waiver. In this situation appellants must show that this delay by JCI clearly demonstrates an intent to not rely upon maritime law. Hollis, 2019 WL 3334617 at *4 (holding appellant waived preemption argument by failing to raise it in the trial court). Our conclusion is reinforced by the fact that JCI included maritime law arguments in its motion for summary judgment, which demonstrates JCI did not intend to waive reliance on maritime law as a defense.
Next, appellants argue that the trial court abused its discretion when it allowed JCI to add maritime law as a defense because doing so surprised and prejudiced appellants. Appellants, quoting from Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 64 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (addressing trial amendment).
Appellants offer no explanation on how they were surprised by JCI’s amended answer adding maritime law as a defense. Even if they had, we conclude the amended pleading did not operate as a surprise because JCI had previously asserted maritime law in its motion for summary judgment and appellants could have anticipated the maritime law defense in light of Pepper’s service in the Navy where he was regularly exposed to asbestos-containing products. See First State Bank of Mesquite v. Bellinger & DeWolf, LLP, 342 S.W.3d 142, 146 (Tex. App.—El Paso 2011, no pet.) (stating that even though parties had been litigating for several years, because the bank waited until after the pleading deadline to add claims, the trial court could have reasonably found that the late amendment was calculated to surprise bank’s opponent).
*4 Appellants assert that they were prejudiced by the delay in JCI pleading the application of maritime law. Appellants initially argue they were prejudiced because JCI did not plead maritime law prior to Pepper’s deposition and, since he had subsequently died, they were deprived of the opportunity to question him about the time he spent working with JCI gaskets on land, in dry dock, in territorial waters, and on the high seas. Pepper’s entire deposition appears in the appellate record. The transcript makes clear however, that Pepper was questioned about these subjects during his deposition. We therefore conclude that appellants have not established they were prejudiced by the addition of maritime law to the case after Pepper’s deposition.
Finally, appellants assert they were prejudiced because, “had JCI pleaded its affirmative defense in a timely fashion, [appellants] would have developed this case differently and sought an early determination on the choice of law.” Appellants offer no specifics on what procedures or discovery mechanisms they would have used, but could not, as a result of the delay in the addition of maritime law to the case.1 We therefore conclude appellants have not shown they were prejudiced by the addition of maritime law to the case. We overrule appellants’ first issue.
II. The trial court did not err when it determined that maritime law applied to appellants’ claims.
Appellants argue in their second issue that the trial court erred when it determined that maritime law applied to appellants’ claims because JCI identified a conflict between Texas law and maritime law only on the availability of punitive damages. JCI responds that the trial court correctly determined that state law was preempted because, when it is properly “invoked, maritime law becomes the exclusive remedy under which a party may proceed, preempting all state law grounds of recovery.” E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (stating that the applicability of maritime jurisdiction results in federal maritime law displacing state law.). We once again agree with JCI.
As the Texas Supreme Court stated in Id.
*5 The Conner court’s reasoning persuasive and adopt it here.
Appellants allege that Pepper was exposed to asbestos-containing products manufactured by JCI while serving in the Navy on two Navy ships. It is undisputed that JCI manufactured, marketed, and sold gasket material containing asbestos to the Navy. It is also undisputed that JCI’s products were used on the ships where Pepper served and that he used those products while performing his duties. Like the Grubart test for the application of maritime law. We hold that the trial court did not err when it concluded that federal maritime law preempted state law on appellants’ claims. We overrule appellants’ second issue.
III. The trial court erred when it denied appellants the opportunity to recover pre-death pain and suffering damages.
Appellants argue in their third and fourth issues that the trial court erred when it determined that “it is appropriate to look to DOHSA in this case regarding the award of damages, as such plaintiff may not recover non-pecuniary damages.” In appellants’ view, DOHSA does not apply directly or indirectly, and it therefore does not limit their “ability to recover damages for the pain and suffering of Mr. Pepper.” We agree with appellants.
As with appellants’ second issue, we are not the first court to trod this path. Both the Virginia Supreme Court and the Southern District of Florida addressed, and rejected, the same arguments JCI raises here in previous litigation involving JCI. See 568 U.S. 1161, 133 S.Ct. 1263, 185 L.Ed.2d 184 (2013). JCI responds that both courts simply got it wrong. We disagree.
In a well-reasoned opinion, the Virginia Supreme Court determined that DOHSA did not apply in a comparable case involving a former-Navy sailor who developed Miles, 498 U.S. at 33, 111 S.Ct. 317). The Virginia Supreme Court continued
*6 [t]he Supreme Court held in Miles, ‘we must look to the Jones Act.’
Accordingly, we hold that, while the recovery of nonpecuniary damages is not permitted in actions for the wrongful death of a seaman, ‘whether under [the Death on the High Seas Act], the Jones Act, or general maritime law,’ such damages may be recovered in a general maritime survival action, provided they represent damages suffered during the decedent seaman’s lifetime—as the award of damages for Hardick’s pre-death pain and suffering does in this case.
JCI argues that the Supreme Court’s decision in mesothelioma is an indivisible disease. We do not agree that DOHSA applies.
Id. at 3 (internal citations omitted).
The Virginia Supreme Court then examined Id.
Similarly, the Southern District of Florida has also held that DOHSA does not apply to the claims of a Navy seaman who was exposed to asbestos on both the high seas, in territorial waters, and on land. See Hays, 2014 WL 10658453 at *2. The court held that it rejected
JCI’s attempt to apply DOHSA to the facts of this case. By its terms, DOHSA applies solely to the deaths caused on the high seas. The Court is unaware of any case that has held that DOHSA restricts recoverable damages for an indivisible injury in a case where some of the exposure to asbestos-containing products occurred on the high seas and some occurred in territorial waters.
*7 Id. at *5.
Like those courts did before us, we conclude that DOHSA does not apply to appellants’ claims and that, while appellants may not recover non-pecuniary damages under federal maritime law, they may recover damages for Pepper’s pre-death pain and suffering.3 We therefore sustain appellants’ third and fourth issues.
We affirm the trial court’s determination that maritime law applies. Having sustained appellants’ third and fourth issues, we reverse the trial court’s take-nothing final judgment to the extent it was based on the trial court’s determination that appellants’ could not recover damages for Pepper’s pre-death pain and suffering, and remand to the trial court for further proceedings consistent with this opinion.
(Jewell, J., concurring).
Kevin Jewell, Justice, concurring.
At issue is availability of survival damages for the decedent’s pre-death pain and suffering under general maritime law from John Crane, Inc. (JCI), which is alleged to have defectively designed, manufactured, and marketed asbestos-containing sheet gasket material provided to the United States Navy. The decedent, Garland Pepper, allegedly was exposed to the gaskets while serving aboard two Navy vessels from 1957 to 1967. The court concludes that JCI did not waive application of general maritime law, which applies to appellants’ claims, and that survival damages for the decedent’s pre-death pain and suffering are recoverable under general maritime law. While I join the majority opinion with respect to parts I and II, I concur in the judgment as to part III and write separately to explain my reasoning.
A. Maritime uniformity under Miles
In passing the Jones Act, Miles, 498 U.S. at 27, 111 S.Ct. 317. This uniformity principle forms the foundation of both sides’ arguments in the present case, so I examine how the Supreme Court has applied it.
*8 In Moragne and later cases illustrate, necessarily entails examination of, and respect for, legislative policy preferences.
The court applied this principle again in id. at 27, 111 S.Ct. 317, so if a remedy is unrecognized under a maritime cause of action established by statute, general maritime law should not recognize it either.
Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978)).
*9 In subsequent cases, the court has consistently adhered to Miles, 498 U.S. at 33, 111 S.Ct. 317).
B. Relevant legislative policy supports recovery of pre-death pain and suffering damages under a general maritime survival claim
With that, I turn to the case at hand. After concluding that maritime law governed, the trial court applied Miles, looked to DOHSA as a legislative policy reference, and ruled that appellants may not recover non-pecuniary damages, including loss of society, lost future earnings, pre-death pain and suffering, and punitive damages. On appeal, regarding recoverable damages, appellants challenge the judgment only with respect to pre-death pain and suffering.
Applicable in territorial waters and on the high seas, the Jones Act establishes a negligence cause of action for injuries or death suffered in the course of employment, but only for seamen.2 Dooley, 524 U.S. at 122, 118 S.Ct. 1890 (“DOHSA does not authorize recovery for the decedent’s own losses....”). Also, DOHSA does not apply in territorial waters.
Viewing the facts most favorably to appellants, neither the Jones Act nor DOHSA apply directly to their claims, and appellants have not pleaded a right to recover under either statute. Though the parties agree that Pepper was a seaman under general maritime law, that he was allegedly injured in the course of employment as a seaman, and that he ultimately died from his injuries, Pepper did not have a Jones Act claim against JCI because JCI was not his employer. See Miles, 498 U.S. at 23, 28, 111 S.Ct. 317. Neither is DOHSA controlling because there exists at least some evidence that the alleged wrongful acts or negligence causing Pepper’s death occurred only in part on the high seas, if at all.
The claims against JCI are for products liability. The law of products liability has been incorporated into general maritime law. Miles, we must therefore consult relevant legislative policy preferences in assessing whether the representative of Pepper’s estate may recover pre-death pain and suffering in a general maritime survival action.4
*10 Both sides rely heavily on the Miles recovered pre-death pain and suffering damages, which remained undisturbed on appeal; and (3) two recent decisions from Virginia5 and Florida6 addressing this issue—indeed involving JCI—referred to the Jones Act in holding that such recovery is available.
JCI, on the other hand, argues that DOHSA controls all remedies because: (1) “an unbroken line of Supreme Court precedent dictates that courts must follow DOHSA’s remedial scheme in determining the damages available under general maritime law”; (2) Pepper was exposed to asbestos while working on the high seas; (3) Pepper was a seaman whose recovery is defined by Higginbotham, 436 U.S. at 624, 98 S.Ct. 2010 (“DOHSA should be the courts’ primary guide as they refine the nonstatutory death remedy”).
1. Relevant legislative guidance is not limited to DOHSA.
Upon full consideration, I disagree with JCI that we should look only to DOHSA as the relevant legislative policy guide. For several reasons, the Jones Act is a proper reference. To begin with, the Jones Act bears on the analysis because Pepper was a seaman, and the parallels between appellants’ claims and the Jones Act are numerous. While DOHSA applies broadly to “any person,” including seamen, the Jones Act created causes of action to benefit seamen specifically, establishing a “uniform system of seamen’s tort law,” Miles, 498 U.S. at 29, 111 S.Ct. 317, particularly to address seamen’s injury and death suffered while in the course of employment on a vessel, as allegedly happened to Pepper. The Jones Act permits actions in negligence, and appellants’ products liability claims sound in negligence, at least in part. As mentioned, there is some evidence that the alleged negligence in question did not occur on the high seas, but in part in territorial waters where the Jones Act applies and DOHSA does not. The only reason Pepper did not have a direct claim under the Jones Act against JCI is because JCI was not Pepper’s employer.
Of course, the Jones Act provides that a seaman’s injury claims survive death, and this case is about survival damages.7 Maritime survival is a statutory creation traditionally unavailable at common law. See Townsend, 557 U.S. at 415, 129 S.Ct. 2561. The Jones Act reflects a policy choice to allow a survival right for seamen injured due to employer negligence.
*11 As a seaman, moreover, Pepper was uniquely a ward of admiralty, to whom general maritime law has long directed “special solicitude.” Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 65, 33 S.Ct. 192, 57 L.Ed. 417 (1913) (same).
Additionally, insofar as seamen are concerned, the Jones Act and DOHSA provide complementary, not preclusive, remedies. If a seaman dies on the high seas, he is not limited solely to DOHSA but may sue under the Jones Act as well. See, e.g., Townsend, 557 U.S. at 424, 129 S.Ct. 2561. It follows that when both the Jones Act and DOHSA are closely related to the general maritime claim at issue, the most restrictive relief is not mandated.
Thus, even accepting JCI’s proposition that all of its allegedly negligent conduct and all of Pepper’s alleged asbestos exposure occurred on the high seas, the Jones Act would remain relevant to assessing available general maritime remedies because the Jones Act applies to seamen on the high seas. While DOHSA, too, provides a wrongful death claim for seamen, the Jones Act does not suddenly become irrelevant when a seaman such as Pepper is injured and later dies. See Miles, 498 U.S. at 32, 111 S.Ct. 317 (“[T]he Jones Act applies when a seaman has been killed as a result of negligence....”).
Notably, the Supreme Court has turned to the Jones Act in pursuing maritime uniformity when a seaman is involved. Miles, 498 U.S. at 33, 111 S.Ct. 317).
*12 The Supreme Court has also looked to the Jones Act as a relevant legislative reference even when seamen were not involved. In Id. at 817, 121 S.Ct. 1927.
Citing Higginbotham said DOHSA should be courts’ “primary guide” in death cases on the high seas, but it is not the only guide when injuries and death to seamen are at issue.
Because the parallel rights created by the Jones Act are “closely related” to appellant’s survival claims, see Hays have reached the same conclusion. JCI says those decisions are wrong. For the reasons explained, I respectfully disagree.
2. A seaman may recover pain and suffering for his personal injuries under the Jones Act; his estate may recover those damages in survival.
Having concluded that the Jones Act is an appropriate legislative reference for applying Deal v. A.P. Bell Fish Co., 728 F.2d 717, 718 (5th Cir. 1984).
*13 Pain and suffering is a non-pecuniary form of damage. See, e.g., Miles does not permit survival recovery in general maritime beyond that otherwise available under the Jones Act. Neither do we.8
Allowing pre-death pain and suffering under the present circumstances is both within the legislative limits established by Congress and “more consistent with general principles of maritime tort law” as revealed by relevant legislatures. See id. at 36, 111 S.Ct. 317. I therefore agree with the trial court in all respects except for Pepper’s pre-death pain and suffering survival claim under general maritime law.
3. Under the present circumstances, recovery is available from a non-employer product manufacturer.
Finally, JCI argues that pre-death pain and suffering as survival damages under a general maritime claim should never be available against a non-employer, even if reference to the Jones Act is proper. JCI points to Scarborough is not on point.
Moreover, I disagree with JCI for a separate reason. Given that the present claims are based on products liability—a body of law incorporated into general maritime law—JCI’s argument contravenes an underlying purpose of products liability law: that strict liability should be imposed on the party best able to protect persons from hazardous materials. JCI’s proposed rule would shield product manufacturers in these types of suits. Subsuming products liability law into the general maritime law would serve little purpose if seamen could not bring such claims against product manufacturers, who rarely if ever are the seaman’s employer. I thus conclude that pain and suffering losses are recoverable under a products liability claim in survival against JCI even though it was not Pepper’s employer.
For these reasons, I concur in the judgment as to part III of the majority opinion.
|1||In making this argument, appellants do not mention the fact that the case did not go to trial in 2015, in fact extended into 2018, and the parties had every opportunity to fully brief the maritime law issue for the trial court.|
For example, in their response in opposition to JCI’s supplemental motion to apply maritime law and motion to reconsider regarding DOHSA, appellants stated:
The Court has indicated that general maritime law will apply in this case, but that the Death on the Highs Seas Act (“DOHSA”) will not apply because neither Mr. Pepper’s death, nor [JCI’s] wrongful conduct occurred on the high seas. The court’s resolution of those issues was correct and need not be revisited.
|3||Appellants assert in their Reply brief that they are also eligible to recover punitive damages. We need not reach that question because we conclude that appellants waived the issue of punitive damages when they conceded on page 13 of their opening brief “that maritime law would not support the recovery of punitive damages in this case.” In addition, we conclude they waived consideration of punitive damages when they did not raise an issue regarding punitive damages in their opening brief. Marsh v. Livingston, No. 14-09-00011-CV, 2010 WL 1609215, at *4 (Tex. App.—Houston [14th Dist.] April 22, 2010, 2013, pet. denied) (mem. op.) (stating Texas Rules of Appellate Procedure do not allow an appellant to add a new issue in a reply brief that was not discussed in its opening brief).|
|1||The decedent’s mother asserted two claims: negligence under the Jones Act, and unseaworthiness under general maritime law. Id.|
|2||To qualify as a seaman under the Jones Act, the worker’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and its nature. See Chandris, Inc. v. Latsis, 515 U.S. 347, 376, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (describing test for seaman status).|
|3||45 U.S.C. §§ 51 et seq.|
|4||I will presume that a survival action under general maritime law exists because it does in this circuit and the Supreme Court has yet to affirmatively say otherwise. See Dooley, 524 U.S. at 124, 118 S.Ct. 1890.|
|5||568 U.S. 1161, 133 S.Ct. 1263, 185 L.Ed.2d 184 (2013).|
|6||Hays v. John Crane, Inc., No. 09-81881-CIV-KAM, 2014 WL 10658453, at *2 (S.D. Fla. Oct. 10, 2014).|
|7||Texas state law also permits survival claims. See Tex. Civ. Prac. & Rem. Code § 71.021.|
|8||We do not address any form of damage other than the decedent’s pre-death pain and suffering.|