Fox v. Texaco, Inc.

722 So. 2d 1064, 1998 WL 781867
CourtLouisiana Court of Appeal
DecidedNovember 6, 1998
Docket97 CA 2126
StatusPublished
Cited by10 cases

This text of 722 So. 2d 1064 (Fox v. Texaco, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fox v. Texaco, Inc., 722 So. 2d 1064, 1998 WL 781867 (La. Ct. App. 1998).

Opinion

722 So.2d 1064 (1998)

Terrence E. FOX
v.
TEXACO, INC.

No. 97 CA 2126.

Court of Appeal of Louisiana, First Circuit.

November 6, 1998.
Rehearing Denied December 28, 1998.

*1066 J.B. Jones, Cameron, for Plaintiff-Appellant—Terrence Fox.

Michael M. Caffery, New Iberia, for Defendant-Appellee—Texaco, Inc.

Jeffery M. Baudier, New Orleans, for Defendant-Appellee—Texaco, Inc.

BEFORE: FITZSIMMONS and GUIDRY, JJ., and CHIASSON, J. Pro Tem.[1]

FITZSIMMONS, Judge.

Plaintiff, Terrence Fox, appeals from a verdict and judgment notwithstanding the verdict for injuries sustained while working for defendant, Texaco, Inc. The jury awarded the following:

$     165.00 — past medical expenses
$  14,000.00 — future medical expenses
$  12,841.00 — past physical and mental pain and suffering
$       0.00 — future pain and suffering
$  50,916.00 — past loss of earning capacity
$ 110,333.00 — future loss of earning capacity
____________
$ 188,255.00 — TOTAL

After granting the plaintiff's motion for judgment notwithstanding the verdict, the trial court determined that plaintiff was additionally entitled to an award for future pain and suffering and disability in the sum of $48,000.00.

Mr. Fox asserts in his appeal that the jury erred: in its failure to award "maintenance;" failure to award pre-judgment interest; and, inadequate awards of general damages and past loss of earning capacity. Finally, it is alleged that the judge failed to enter judgment in accordance with the jury's finding as to "cure" or to award adequate future general damages.

Texaco, Inc. answered the appeal. It alleged as error that the jury abused its discretion in its award of $50,916.00 in past loss of earning capacity and in its award of $110,333.00 in future loss of earning capacity.

CURE

"Maintenance and cure" is an ancient duty imposed upon the owner of a ship to provide food, lodging and necessary medical services to seamen who become ill or injured during service to the ship. Davis v. Odeco, Inc., 18 F.3d 1237, 1245 (5th Cir. 1994), cert. denied, Murphy Exploration & Production Company v. Davis, 513 U.S. 819, 115 S.Ct. 78, 130 L.Ed.2d 32 (1994). The burden of proof in seeking maintenance and cure is relatively light because recovery is *1067 not contingent upon negligence or fault of the vessel or its owner. Generally, a seaman need only prove that the injury arose during his service of the vessel; no causal connection to his duties need be shown. Comeaux v. Basin Marine, Inc., 93-1624, p.5 (La.App. 1st Cir.6/24/94); 640 So.2d 833, 836, writ denied, 94-2307 (La.11/18/94); 646 So.2d 386.

"Cure" includes medical, therapeutic and hospital expenses, until that point in time when plaintiff reaches maximum medical recovery. Milstead v. Diamond M. Offshore, Inc., 94-1582, p. 24 (La.App. 3rd Cir.9/6/95); 663 So.2d 137, 150, rev'd on other grounds, 95-2446 (La.7/2/96); 676 So.2d 89. In the case sub judice, the jury found that the plaintiff was entitled to "cure;" however, the trial court judgment did not reflect that finding. In its reasons for decisions, the trial court stated that it interpreted the jury's responses to the verdict sheet, in which it awarded the plaintiff future medical expenses to satisfy their positive response to the award of "cure." We find this inference to constitute legal error.

Maintenance and cure is an action ex contractu, pursued via a separate cause of action or theory of recovery than negligence for injuries caused by unseaworthiness of a vessel. Perry v. Allied Offshore Marine Corp., 618 So.2d 1033, 1035 (La.App. 1st Cir. 1993). Ordinarily, a seaman need only prove that he was in the service of the vessel when the injury arose. Comeaux, 93-1624 at p. 5; 640 So.2d at 836. The jury's express factual finding that the plaintiff was due "cure" under maritime law was unambiguous. It is subject to the "clearly erroneous" standard of review. Id. The evidence is supportive of the jury's finding that "cure" would apply in this matter. The jury's past and present award of medical expenses clearly demonstrates that it believed Mr. Fox's injuries to have been job-related and not to have reached the point of maximum medical recovery. An explicit grant of cure cannot be judicially subsumed into the jury's independent findings on separate and distinct claims. Accordingly, the trial court judgment should be amended to reflect the incorporation of the jury's finding of "cure."

MAINTENANCE

"Maintenance" is designed to provide a seaman with a sum for food and lodging expenses that he would have otherwise received on the vessel, if he had not been injured. Heaton v. Gulf International Marine, Inc., 536 So.2d 622, 626 (La.App. 1st Cir.1988). Maintenance payments may only be credited against amounts awarded that are the substantial equivalent of maintenance. Jenkins v. Kerr-McGee Corporation, 613 So.2d 1097,1107 (La.App. 3rd Cir.), writs denied, 616 So.2d 701 (La.1993) and 616 So.2d 702 (La.1993), citing, Colburn v. Bunge Towing, Inc., 883 F.2d 372, 378 (5th Cir. 1989). Maintenance paid may not be deducted from an award for past lost wages. Jenkins v. Kerr-McGee Corporation, 613 So.2d at 1107, citing Phillips v. Western Company of North America, 953 F.2d 923 (5th Cir. 1992)

Generally, maintenance and cure are awarded jointly. The jury in the instant case, however, found that Mr. Fox was entitled to cure, but not to maintenance not provided by Texaco. A resolution of this issue hinges on the existence vel non of a reasonable basis for the jury's failure to recognize the plaintiff's right to maintenance, given its award of cure.

Our review of this issue on appeal is shaped by the general rule that factual findings will not be disturbed in the absence of manifest error. An appellate court's reversal of a jury or trial court's factual finding necessitates a determination that the record does not support the existence of a reasonable factual basis for the finding, such that it is clearly wrong. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Notwithstanding an appellate court's independent evaluations and inferences being considered preferable by it to those of the factfinders, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, 617 So.2d at 882-883.

*1068 In the case under consideration, Mr. Fox continued to work on a full-time basis until his position was terminated. The jury found that he worked, despite a medical condition that had not reached maximum cure. Such a finding would bear a reasonable basis for a jury's determination that Mr. Fox could be due cure, but not maintenance for that period of time until he was terminated. Even casting this latter thought to the void, the parties stipulated at trial that maintenance would not begin until January 1, 1995, the date of Mr. Fox's termination.

After January 1, 1995, Mr. Fox was unemployed.

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722 So. 2d 1064, 1998 WL 781867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-texaco-inc-lactapp-1998.