Opinion
NO. 14-18-00573-CV
06-18-2020
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 v. JOHN CRANE, INC., Appellee
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.
BACKGROUND
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.
The case did not go to trial as originally scheduled. Instead, the trial court signed an order staying the case based on section 90.055 of the Texas Civil Practice and Remedies Code. See 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.
ANALYSIS
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 Hollis v. Acclaim Physician Group, Inc. , No. 02-19-00062-CV, 2019 WL 3334617, at *4 (Tex. App.—Fort Worth July 25, 2019, no pet.) (mem. op.) (holding party waived choice-of-law preemption argument by failing to raise it in the trial court). Waiver is defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Sun Expl. & Prod. Co. v. Benton , 728 S.W.2d 35, 37 (Tex. 1987). Waiver is largely a matter of intent, and for implied waiver to be found through a party's actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Jernigan v. Langley , 111 S.W.3d 153, 156 (Tex. 2003). "There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right." 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 Tex. R. Civ. P. 63 ; Sosa v. Cent. Power & Light , 909 S.W.2d 893, 895 (Tex. 1995) (per curiam). The amended pleading may not, however, act as a surprise to the other party. See Tex. R. Civ. P. 63. A trial court may strike an amended pleading if the opposite party objects and shows surprise. 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).
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. Jernigan , 111 S.W.3d at 156. In an effort to make this showing appellants point out that JCI (1) specifically mentioned Virginia and Alabama law, but not maritime law, in its original answer; (2) invoked Texas law in both its original and first amended answers; and (3) delayed until after it filed a motion for summary judgment and motion to exclude experts under Texas law to add maritime law as a defense in its second amended answer. We conclude that none of these actions clearly demonstrates JCI's intent to not rely upon maritime law. See id. at 157–58 (stating that waiting more than 600 days after receiving medical expert report to file motion to dismiss was insufficient to establish waiver even though doctor engaged in discovery, filed a motion for summary judgment on other grounds, and filed an amended answer during that time period); Niche Oilfield Servs., LLC v. Carter , 331 S.W.3d 563, 577 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding plaintiff adequately raised application of maritime law in his first amended petition); cf. 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 Bagwell v. Ridge at Alta Vista Invs. I, LLC , 440 S.W.3d 287, 293 (Tex. App.—Dallas 2014, pet. denied), argue that the addition of maritime law surprised and prejudiced them because the assertion of a new defense is "prejudicial on its face." In making this argument, appellants ignore the fact that in Bagwell the court of appeals was addressing the addition of a new defense after the pleading deadline had passed. Id. at 291–93. That is not the situation we are presented with here because it was undisputed that JCI's second amended answer was filed more than seven days before trial and appellants have not pointed out any scheduling order instituted by the trial court imposing some other deadline. Even if that was the situation here, the mere fact that an amended pleading asserts a new defense does not prejudice the opposing party as a matter of law. See 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 Stephenson v. LeBoeuf , 16 S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) ("The question is whether the opposing party could have anticipated the newly asserted matter as revealed by the record of the case."); cf. 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).
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. We therefore conclude appellants have not shown they were prejudiced by the addition of maritime law to the case. We overrule appellants' first issue.
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.
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." Gen. Chem. Corp. v. De La Lastra , 852 S.W.2d 916, 919 (Tex. 1993) ; see 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 General Chemical , "there is little question that the facts of this case come within the purview of maritime law," a fact that appellants recognized during the litigation in the trial court. Gen. Chem. Corp. , 852 S.W.2d at 919. Conner v. Alfa Laval, Inc. , 799 F.Supp.2d 455, 458 (E.D. Pa. 2011), addresses cases with similar facts to this appeal. There, the district court was called upon to determine the applicability of maritime law in several cases where some of the asbestos-exposure plaintiffs alleged they were exposed to asbestos-containing products in and around U.S. Navy ships. Id. The court applied the test announced in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527, 531, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), which states that "a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity." Id. at 463, 466–69. The locality portion of the test requires that the tort occur on navigable waters, or, for injuries suffered on land, that the injury be caused by a vessel on navigable waters. Id. at 463. The connection with maritime activity part of the test contains two inquiries: (1) whether the incident has a potentially disruptive impact on maritime commerce, and (2) whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. Id.
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.
The Conner court initially determined "that the locality test is satisfied as long as some portion of the asbestos exposure occurred on a vessel on navigable waters." Id. at 466. The court then found that three of the plaintiffs at issue met the locality test because they were sailors performing their service aboard Navy ships at sea. Id. The court then examined whether the incidents at issue, which it described as "exposure to allegedly defective products on or around Navy ships," had a potentially disruptive impact on maritime commerce when characterizing the incidents generally. Id. at 467. The court determined the incidents did have the potential to disruptive maritime commerce for the same three plaintiffs. Id. Finally, the court examined whether the tortfeasors' conduct at issue in the cases was so closely related to activity traditionally subject to maritime law that the reasons for applying special maritime rules would apply to the pending cases. Id. at 469. The court determined that the defendants in three of the pending cases were engaged in the manufacture of products for use in ships and therefore their defective products had a substantial relationship to traditional maritime activity. Id. The Conner court then held that maritime law applied to the three plaintiffs' claims. Id. We find 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 Conner court before us, we conclude that appellants' claims meet 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 Hays v. John Crane, Inc. , 2014 WL 10658453, at *2 (S.D. Fla. Oct. 10, 2014) ; John Crane, Inc. v. Hardick , 284 Va. 329, 732 S.E.2d 1, 3 (2012), cert. denied , 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 mesothelioma. See Hardick , 732 S.E.2d at 3. JCI made similar arguments in Hardick to those it makes here. Id. The Virginia Supreme Court briefly traced the history of survival actions in maritime law. Then, citing the Supreme Court's opinion in Miles v. Apex Marine Corp. , 498 U.S. 19, 33, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), it observed that, "for the purposes of this case, in deciding whether an estate can recover particular damages ‘in a general maritime action surviving the death of a seaman,’ the Supreme Court looked to the Jones Act for guidance even though the decedent seaman's estate was not seeking recovery for such damages under the Jones Act." Hardick , 732 S.E.2d at 2 (quoting Miles , 498 U.S. at 33, 111 S.Ct. 317 ). The Virginia Supreme Court continued
[t]he Supreme Court held in Miles that, because the Jones Act survival provision ‘limits recovery to losses suffered during the decedent's lifetime,’ a similar limitation should apply under the general maritime law. Similarly, ‘[b]ecause this case involves the death of a seaman,’ as was the case 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 Dooley v. Korean Air Lines Co. , 524 U.S. 116, 118 S. Ct. 1890, 141 L. Ed. 2d 102 (1998), forecloses Mrs. Hardick's survival action for Hardick's pre-death pain and suffering, and that DOHSA governs the outcome of this case because Hardick's mesothelioma was the result of his cumulative asbestos exposures during his service in the Navy, both in territorial waters and on the high seas, and that mesothelioma is an indivisible disease. We do not agree that DOHSA applies.
Id. at 3 (internal citations omitted).
The Virginia Supreme Court then examined Dooley in which the Supreme Court held "DOHSA precluded the plaintiffs in that case from bringing a survival action for pre-death pain and suffering under general maritime law" because " ‘Congress provided the exclusive recovery [through DOHSA] for deaths that occur on the high seas.’ " Id. at 3 (quoting Dooley , 524 U.S. at 123–24, 118 S.Ct. 1890 ). The Virginia Supreme Court then observed that the Supreme Court declared in Dooley that it was not deciding "whether general maritime law ever provides a survival action." Id. at 3 (quoting Dooley , 524 U.S. at 124, n.2, 118 S.Ct. 1890 ) (emphasis in original). Instead, according to the Virginia Supreme Court, it explicitly recognized that a survival action was still available, separate and apart from DOHSA, when the decedent is a seaman. Id. The court then distinguished Dooley because it "did not involve the death of a seaman, as Miles did, and as this case does." Id. at 3–4. The Virginia Supreme Court held "that a decedent seaman's estate may recover damages for the decedent seaman's pre-death pain and suffering in a general maritime survival action." Id. at 4. Finally, it concluded that because "the Jones Act permits recovery for the losses suffered during a decedent seaman's lifetime in a survival action, including pre-death pain and suffering, Hardick's estate may recover for his pre-death pain and suffering under general maritime law." 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.
Id. The district court then concluded that the plaintiff could not "recover non-pecuniary damages; however, the estate may recover damages for the decedent's pre-death pain and suffering in the general maritime action." 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. We therefore sustain appellants' third and fourth issues. CONCLUSION
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. Tex. R. App. P. 38.1(f) ; see 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).
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).
CONCURRING OPINION
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, 46 U.S.C. §§ 30104 - 30105(b), and the Death on the High Seas Act (DOHSA), 46 U.S.C. § 30302, Congress created what the Supreme Court has described as uniform systems of seamen's tort law and maritime wrongful death recovery. See Miles v. Apex Marine Corp. , 498 U.S. 19, 25, 28-29, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). Admiralty legislation, however, co-exists with a body of common-law rules forming the general maritime law. See The Dutra Grp. v. Batterton , ––– U.S. ––––, 139 S. Ct. 2275, 2278, 204 L.Ed.2d 692 (2019). The Supreme Court has more than once explained the desirability of aligning or reconciling admiralty law so that rights and remedies recognized by the judicial branch remain uniform with, and appropriately defer to, legislative enactments. See id. at 2278, 2285 ; Atl. Sounding Co. v. Townsend , 557 U.S. 404, 423-25, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009) ; Miles , 498 U.S. at 27, 33, 111 S.Ct. 317 (discussing Moragne v. States Marine Lines, Inc. , 398 U.S. 375, 401, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) ). The court has also emphasized, however, that while the judicial branch may supplement legislation when necessary, "Congress retains superior authority in these matters" and that federal courts exercising admiralty jurisdiction "must be vigilant not to overstep the well-considered boundaries imposed by federal legislation." 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.
In Moragne , a nonseaman was killed on a vessel in territorial waters. Moragne , 398 U.S. at 376, 90 S.Ct. 1772. His widow sued the shipowner to recover damages for wrongful death due to the ship's unseaworthiness. The district court dismissed this claim because it was neither allowed under statute nor recognized in general maritime law. Id. The case highlighted inconsistencies in admiralty law, which left Moragne's widow without an available remedy because (1) the general maritime law did not recognize a claim for wrongful death at that time, The Harrisburg , 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), and (2) her claim did not fall within the ambit of admiralty statutes, such as the Jones Act and DOHSA, despite the overwhelming legislative judgment behind those statutes favoring maritime wrongful death actions. The court overruled The Harrisburg and created a general maritime wrongful death cause of action, thereby unifying maritime wrongful death law for breach of the duty of seaworthiness. See Moragne , 398 U.S. at 402, 90 S.Ct. 1772. Moragne 's significance to the present matter lies in its effectuation of a fundamental "constitutionally based principle that federal admiralty law should be ‘a system of law coextensive with, and operating uniformly in, the whole country.’ " Id. (quoting The Lottawanna , 88 U.S. (21 Wall.) 558, 575, 22 L.Ed. 654 (1875) ). Moragne eliminated nonuniformities among various relevant sources of admiralty law. Achieving that end, as Moragne and later cases illustrate, necessarily entails examination of, and respect for, legislative policy preferences.
The court applied this principle again in Miles , which involved the death of a seaman in territorial waters. Miles , 498 U.S. at 21, 111 S.Ct. 317. The Supreme Court addressed Miles's unseaworthiness claim for wrongful death under general maritime law, beginning with whether such a cause of action exists. Discussing extensively both Moragne and the unambiguous legislative policy favoring maritime wrongful death claims, id. at 25-30, 111 S.Ct. 317, the court made clear that admiralty courts "should look primarily to ... legislative enactments for policy guidance" in promoting consistency in maritime remedies. Id. at 27, 111 S.Ct. 317. When Congress has prescribed specific rules, the federal judiciary "may supplement these statutory remedies where doing so would achieve the uniform vindication" of the policies served by the relevant statutes. See id. Moragne , for example, modified general maritime law to fill a gap left open by statute. Id. at 31, 111 S.Ct. 317. Similarly, based on Moragne, Miles allowed a general maritime wrongful death action for seamen sounding in unseaworthiness (when the Jones Act would not apply) and in territorial waters (where DOHSA would not apply). See id. at 30, 111 S.Ct. 317. However, the court emphasized that court-developed maritime law must remain within legislative boundaries for parallel statutory claims, 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.
The decedent's mother asserted two claims: negligence under the Jones Act, and unseaworthiness under general maritime law. Miles , 498 U.S. at 21-22, 111 S.Ct. 317. She sought wrongful death damages on her behalf and survival damages on behalf of her son's estate. Id. at 22, 111 S.Ct. 317. A jury found in Miles's favor on the Jones Act claim and awarded wrongful death and survival damages, including compensation to the estate for the seaman's pre-death pain and suffering. Id. The Jones Act recovery was affirmed on appeal and was not at issue in the Supreme Court. Id.
Miles sanctioned a general maritime wrongful death claim for seamen in large measure due to significant and overwhelming legislative support. Likewise, the court turned to legislative policy to guide its consideration of recoverable damages under the general maritime unseaworthiness claim at issue. Miles sought her loss of society as wrongful death damages and also asserted a survival claim for her son's lost future earnings. Id. at 22-23, 111 S.Ct. 317. The court found legislative support lacking for wrongful death recovery of non-pecuniary damages, including loss of society. Id. at 32, 111 S.Ct. 317 (noting, for example, that the Jones Act limits wrongful death recovery to pecuniary loss). The court discerned a similar dearth of support for recovering future lost earnings in survival. Id. at 35, 111 S.Ct. 317. Miles wanted more expansive remedies for wrongful death and survival under general maritime law than permitted by analogous legislation. The court declined. Holding otherwise, the court said, would be "inconsistent with our place in the constitutional scheme" and go "well beyond the limits of Congress' ordered system of recovery for seamen's injury and death." Id. at 32, 36, 111 S.Ct. 317. Faced with a claim under general maritime law in an area covered by a statute, courts should not " ‘prescribe a different measure of damages.’ " Id. at 31, 111 S.Ct. 317 (quoting Mobil Oil Corp. v. Higginbotham , 436 U.S. 618, 625, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) ).
In subsequent cases, the court has consistently adhered to Miles 's teachings. For instance, the court has said that admiralty law " ‘is to be developed, insofar as possible, to harmonize with the enactments of Congress in the field,’ " Norfolk Shipbuilding & Drydock Corp. v. Garris , 532 U.S. 811, 820, 121 S.Ct. 1927, 150 L.Ed.2d 34 (2001) (recognizing wrongful death claim sounding in negligence for nonseamen) (quoting Am. Dredging Co. v. Miller , 510 U.S. 443, 455, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) ), and, as recently as last term, reiterated " Miles 's command" that federal courts should "seek to promote a ‘uniform rule applicable to all actions’ for the same injury," whether under statutory or court-made law. Batterton , 139 S. Ct. at 2285 (holding punitive damages unavailable in unseaworthiness actions) (quoting 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. Norfolk , 532 U.S. at 817, 121 S.Ct. 1927. It makes applicable to seamen the substantive recovery provisions of the Federal Employers Liability Act (FELA). See Miles , 498 U.S. at 23-24, 111 S.Ct. 317. Similarly, the Jones Act's companion statute, DOHSA, creates wrongful death actions for the benefit of representatives of "any person" whose death is caused by "wrongful act, neglect, or default occurring on the high seas." 46 U.S.C. § 30302 ; see Dooley v. Korean Air Lines Co. , 524 U.S. 116, 119, 118 S.Ct. 1890, 141 L.Ed.2d 102 (1998). Both acts apply to seamen and both permit wrongful death claims sounding in negligence. See Miles , 498 U.S. at 25, 111 S.Ct. 317. They differ in at least two important respects, however. The Jones Act contains a survival provision, whereas DOHSA does not. 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.
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).
45 U.S.C. §§ 51 et seq.
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. E. River S.S. Corp. v. Transamerica Delaval, Inc. , 476 U.S. 858, 865, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) ; Scarborough v. Clemco Indus. , 391 F.3d 660, 666 (5th Cir. 2004). I agree that general maritime law applies to appellants' claims. Gen. Chem. Corp. v. De La Lastra , 852 S.W.2d 916, 919 (Tex. 1993). Under 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.
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 Miles v. Melrose , 882 F.2d 976, 986 (5th Cir. 1989), aff'd sub nom. Miles , 498 U.S. at 34, 111 S.Ct. 317 ; Law v. Sea Drilling Corp. , 523 F.2d 793, 795 (5th Cir. 1975) ; see also Batterton , 139 S. Ct. at 2290 n.4 ; Dooley , 524 U.S. at 124, 118 S.Ct. 1890.
Both sides rely heavily on the Miles uniformity doctrine. But given the differences between the Jones Act and DOHSA pertaining to survival claims, the parties predictably disagree on which statutory expression of policy properly guides us in determining availability of survival damages under general maritime law for a products liability claim against a product manufacturer who is not the decedent seaman's employer. Appellants say we should refer to the Jones Act as defining the limits of available relief because: (1) Pepper's personal injury claim as a seaman parallels the Jones Act, which allows pain and suffering damages in survival; (2) in fact, the seaman in Miles recovered pre-death pain and suffering damages, which remained undisturbed on appeal; and (3) two recent decisions from Virginia and Florida 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 Miles , which limits survival damages to pecuniary losses; and (4) to the extent the Jones Act is relevant, the claimed damages should not be recoverable from a non-employer. According to JCI, if DOHSA is the only relevant statutory guide, no survival damages are available at all because DOHSA has no survival provision. JCI cites Dooley and Higginbotham in support of its exclusive remedy argument under DOHSA. Dooley , 524 U.S. at 121, 118 S.Ct. 1890 ; Higginbotham , 436 U.S. at 624, 98 S.Ct. 2010 ("DOHSA should be the courts' primary guide as they refine the nonstatutory death remedy").
John Crane, Inc. v. Hardick , 284 Va. 329, 732 S.E.2d 1 (2012), cert. denied , 568 U.S. 1161, 133 S.Ct. 1263, 185 L.Ed.2d 184 (2013).
Hays v. John Crane, Inc. , No. 09-81881-CIV-KAM, 2014 WL 10658453, at *2 (S.D. Fla. Oct. 10, 2014).
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. Maritime survival is a statutory creation traditionally unavailable at common law. See Miles , 498 U.S. at 33, 111 S.Ct. 317. By providing a survival remedy for injuries, the Jones Act displaced a general maritime rule that denied recovery for survival damages in case of injured seamen. As explained in Townsend , "Congress enacted the Jones Act primarily to overrule The Osceola , ... in which this Court prohibited a seaman or his family from recovering for injuries or death suffered due to his employers' negligence." 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.
Texas state law also permits survival claims. See Tex. Civ. Prac. & Rem. Code § 71.021.
As a seaman, moreover, Pepper was uniquely a ward of admiralty, to whom general maritime law has long directed "special solicitude." Miles , 498 U.S. at 36, 111 S.Ct. 317 ; see Townsend , 557 U.S. at 417, 129 S.Ct. 2561. This point did not carry the day in Miles, see Miles , 498 U.S. at 36, 111 S.Ct. 317, but it has greater heft here, when, as I reference below, the pre-death pain and suffering recovery we have been asked to allow has an entrenched history of legislative endorsement under FELA, which was incorporated into the Jones Act for the benefit of seamen. See St. Louis, I.M. & S. Ry. Co. v. Craft , 237 U.S. 648, 658, 35 S.Ct. 704, 59 L.Ed. 1160 (1915) (FELA permits compensatory survival damages, including "suffering"); 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., Higginbotham , 436 U.S. at 620-21 & n.11, 98 S.Ct. 2010 ("The Jones Act gives a remedy to the dependents of a seaman killed in the course of employment by his employer's negligence, no matter where the wrong takes place."); Bowoto v. Chevron Corp. , 621 F.3d 1116, 1125 (9th Cir. 2010), cert. denied , 566 U.S. 961, 132 S.Ct. 1968, 182 L.Ed.2d 818 (2012) ; Doyle v. Albatross Tanker Corp. , 367 F.2d 465 (2d Cir. 1966) (Jones Act does not preclude remedy under DOHSA). Congress's acknowledged purpose in passing both the Jones Act and DOHSA was to expand , not contract, seamen's remedies in light of The Harrisburg . See Townsend , 557 U.S. at 417, 129 S.Ct. 2561 ("[T]his Court has consistently recognized that the [Jones] Act['s] ... purpose was to enlarge protection to seamen, not to narrow it.") (internal quotation omitted); Dooley , 524 U.S. at 124, 118 S.Ct. 1890 ; Moragne , 398 U.S. at 397-99, 90 S.Ct. 1772 ; see also Sistrunk v. Circle Bar Drilling Co. , 770 F.2d 455, 457 (5th Cir. 1985) (DOHSA provided seamen greater range of remedies), cert. denied , 475 U.S. 1019, 106 S.Ct. 1205, 89 L.Ed.2d 318 (1986). The acts clearly work together, and it would be anomalous to conclude that DOHSA preempts a remedy expressly available to seamen under its "companion statute." Miles , 498 U.S. at 29, 111 S.Ct. 317. "The laudable quest for uniformity in admiralty does not require the narrowing of available damages to the lowest common denominator approved by Congress for distinct causes of action." 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 itself is a helpful example because it examined the availability of a seaman's estate's survival remedies under general maritime law. Id. at 36, 111 S.Ct. 317. The court looked to the Jones Act because Miles "involve[d] the death of a seaman." Id. Because the survival damages sought in Miles —the decedent's lost future income—was not available under the Jones Act and enjoyed little legislative support elsewhere, the court held it was not available under a general maritime law seaworthiness claim as well. Id. "We will not create, under our admiralty powers, a remedy that is disfavored by a clear majority of the States and that goes well beyond the limits of Congress' ordered system of recovery for seamen's injury and death." Id. Miles limited general maritime remedies for seamen's survival claims to those available under the Jones Act and no more. Here, as addressed below, the damages sought are available under the Jones Act; they should be available under a parallel general maritime claim too. This result promotes a " ‘uniform rule applicable to all actions’ for the same injury." Batterton , 139 S. Ct. at 2285 (quoting Miles , 498 U.S. at 33, 111 S.Ct. 317 ).
The Supreme Court has also looked to the Jones Act as a relevant legislative reference even when seamen were not involved. In Norfolk , the court considered whether negligent breach of a general maritime duty of care is actionable for death as with injury. Acknowledging the need to ensure that general maritime law complies with a legislative resolution of the same issue, Norfolk , 532 U.S. at 817, 121 S.Ct. 1927, the court notably consulted three "relevant" statutes—the Jones Act, DOHSA, and the Longshore and Harbor Workers' Compensation Act—even though none applied directly and the victim was a nonseaman injured in territorial waters. Id. at 817, 121 S.Ct. 1927.
Citing Higginbotham and Dooley , JCI says "DOHSA should be the courts' primary guide" in cases of death on the high seas. Higginbotham , 436 U.S. at 624, 98 S.Ct. 2010. JCI asserts that Dooley , which looked solely to DOHSA, precludes any survival damages here. To be sure, Dooley says that "DOHSA expresses Congress' judgment that there should be no [survival] cause of action in cases of death on the high seas." Dooley , 524 U.S. at 123, 118 S.Ct. 1890. But DOHSA applied directly to the claim there at issue, which did not involve the death of a seaman. The Dooley plaintiffs acknowledged that DOHSA did not allow pre-death pain and suffering in survival actions but wanted the court to permit such recovery under general maritime law even though Congress had denied it. The plaintiffs were seeking an expansion of general maritime remedies beyond that provided by an act directly applicable to the suit. Id. As to seamen, in contrast, Dooley does not foreclose a survival claim under the Jones Act. Reading Dooley otherwise, as JCI suggests we do, would effectively nullify the Jones Act's survival provision when a seaman dies from his injury. Higginbotham is similarly distinguishable. Higginbotham involved the "refine[ment of] the nonstatutory death remedy" for nonseamen; it did not address available remedies for seamen's personal injuries, as we have here. Yes, 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 Townsend , 557 U.S. at 426, 129 S.Ct. 2561 (Alito, J., dissenting), the Jones Act is an appropriate legislative reference for promoting maritime uniformity under Miles in this instance. As the majority observes, the courts in Hardick and 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 Miles uniformity, the remaining question is whether an injured seaman's pre-death pain and suffering is an available remedy to his estate under general maritime law. Case law interpreting the Jones Act and its incorporation of FELA answers this question in appellants' favor. In evaluating survival damages available under FELA, courts have recognized that injured workers could recover "such damages as will be reasonably compensatory for the loss and suffering of the injured person while he lived." Craft , 237 U.S. at 658, 35 S.Ct. 704 ; see Vreeland , 227 U.S. at 65, 33 S.Ct. 192 (allowing damages for injured workers' "suffering"). As such damages were available under FELA before 1920, and because the Jones Act incorporated FELA's remedial scheme, courts have considered pre-death pain and suffering as an available remedy for injured seamen under the Jones Act's survival provision, which JCI acknowledges. See, e.g., McBride v. Estis Well Serv., LLC , 853 F.3d 777, 781 (5th Cir. 2017) ; Deal v. A.P. Bell Fish Co. , 728 F.2d 717, 718 (5th Cir. 1984).
Pain and suffering is a non-pecuniary form of damage. See, e.g., E. Airlines, Inc. v. Floyd , 499 U.S. 530, 544 n.10, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991) ; Scarfo v. Cabletron Sys., Inc. , 54 F.3d 931, 939 (1st Cir. 1995) ; Patel v. Hussain , 485 S.W.3d 153, 183 (Tex. App.—Houston [14th Dist.] 2016, no pet.). While JCI correctly notes Miles 's holding that the Jones Act limits recovery to pecuniary damages only, Miles , 498 U.S. at 32, 111 S.Ct. 317, that statement was made in the context of the court's wrongful death discussion. When the court addressed survival damages, it did not rely upon a pecuniary versus non-pecuniary distinction, but rather held that Jones Act survival damages were limited to losses suffered pre-death. Id. at 27-28, 111 S.Ct. 317. I do not read Miles 's survival damages discussion as overruling the court's precedent permitting pain and suffering as a form of relief in survival for seamen, even though such damages are non-pecuniary. Miles neither rejected decades of admiralty precedent nor precluded survival recovery for pre-death pain and suffering (which the estate recovered under the Jones Act claim). Miles does not permit survival recovery in general maritime beyond that otherwise available under the Jones Act. Neither do we.
We do not address any form of damage other than the decedent's pre-death pain and suffering.
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 35, 111 S.Ct. 317. Remedies for a general maritime survival claim for seamen, assuming one exists, extend at least to the Jones Act boundaries but no further. 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 , 391 F.3d at 666-68. There, the survivors of a seaman sought non-pecuniary wrongful death damages from a non-employer defendant, who was alleged to have defectively manufactured protective equipment that caused the decedent to develop silicosis. Id. at 662. The Jones Act did not apply directly in that suit because the defendant was not the employer. The claimants in Scarborough , much like the claimants in Miles , sought more expansive relief under a general maritime claim than would be allowed under the Jones Act. Id. at 667-68. Relying on Miles , the Fifth Circuit held that damages disallowed against an employer under the Jones Act are likewise disallowed against a non-employer under general maritime law. Id. Here, as mentioned, appellants are not seeking a form of recovery unavailable under the Jones Act, so 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.