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Black v. Diamond Offshore Drilling Inc.

Court of Appeals of Texas, Fourteenth District

May 15, 2018

WILLIAM BLACK, Appellant
v.
DIAMOND OFFSHORE DRILLING, INC., DIAMOND OFFSHORE DRILLING LIMITED, AND DIAMOND OFFSHORE GENERAL COMPANY, Appellees

          On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 2015-74728

          Panel consists of Justices Jamison, Busby, and Donovan.

          OPINION

          John Donovan Justice.

         Appellant William Black appeals the trial court's dismissal of his personal-injury claims against appellees Diamond Offshore Drilling, Inc., Diamond Offshore Drilling Limited, and Diamond Offshore Company, claiming the trial court erred in determining that non-signatory appellees could enforce the forum-selection clause contained in his employment contract. We reverse and remand.

          I. BACKGROUND

         Appellant, a citizen of the United Kingdom, signed a contract of employment ("Agreement"), [1] effective January 29, 2008, with Diamond Offshore Drilling (Bermuda) Limited ("Diamond Bermuda").[2] Diamond Bermuda is a corporation organized under the laws of Bermuda with its principal place of business in Bermuda. The employment contract ("Agreement") between appellant and Diamond Bermuda contains a forum-selection clause wherein both parties consent to the jurisdiction of the courts of Bermuda to hear and determine any claims, disputes, suits (whether for personal injury or any other kind) brought by one party to the agreement against the other pertaining to the contract or any matter related to or arising out of the contract. The forum-selection clause within the employment agreement provides as follows:

         18. CONSENT TO JURISDICTION, AGENT AND METHOD FOR SERVICE OF PROCESS

18.1 As part of the consideration for value received to this Agreement and as a term of this Agreement, and regardless of the location of any present or future principal place of business of either party (and/or their successors or assigns, dependants [sic], executors or administrators), each party (and/or their successors or assigns, dependants [sic], executors or administrators) hereby irrevocably consents in advance to the exclusive jurisdiction of the courts of Bermuda, to hear and determine any claims, disputes, suits, actions or proceedings (whether for personal injury compensation or damages of any kind, whether brought by the Employee, or by the Employee's dependants [sic], executors, or administrators) (hereinafter referred to as "Legal Action") brought against such party by the other party and pertaining to this Agreement or to any matter relating to or arising out of this Agreement and further agrees that the courts of Bermuda shall be an appropriate forum for such action.
* * *
18.4 Each party (and/or their successors or assigns, dependants [sic], executors or administrators) hereby irrevocably waives any objection that it may now or hereafter have to venue in the courts of Bermuda, including without limitation any claim, based upon improper venue or Forum Non Conveniens. The Employee (and/or his successors or assigns, dependants [sic], executors or administrators) agrees not to seek, and hereby waives, any right to, compensation from the courts of any other state, nation or jurisdiction or to seek any review of the judgment of any of the courts of Bermuda by any court of any other state, nation, or jurisdiction.

         On January 2, 2015, appellant was working as an assistant mechanic aboard the Ocean Valiant while the vessel was stationed in a shipyard in Spain for repairs. The vessel was owned by appellee Diamond Rig Investments, Limited, a United Kingdom company based in London, England. While working on the vessel, appellant sustained severe chemical burns on his buttocks when he sat on a chemical container marked corrosive.

         On June 8, 2016, appellant filed an amended petition in Harris County, Texas, with claims arising under theories of negligence and unseaworthiness in accordance with the Jones Act and general duties imposed by common law (general maritime law) against appellees Diamond Offshore Drilling, Inc., Diamond Offshore Drilling, Limited, and Diamond Offshore General Co. Appellees Diamond Offshore Drilling, Inc. and Diamond Offshore General maintain their principal place of business in Houston, Texas.

         Appellant later amended his petition, adding appellee Diamond Rig Investments Limited (i.e., the vessel owner and one of the non-signatory defendants) and appellee Diamond Bermuda. In his amended petition, appellant asserts that all appellees were his Jones Act employers at the time of his accident and that all appellees are liable as employers for Jones Act negligence and maintenance and cure payments under general maritime law.

         On August 1, 2016, appellees Diamond Offshore Drilling, Inc., Diamond Offshore Drilling, Limited, Diamond Offshore General Company, and Diamond Rig Investments Limited filed a motion to dismiss based on the application of forum-selection clause within the Agreement, or, in the alternative, based on forum non conveniens.[3] In their motion, appellees argued that, as non-signatories, they can enforce the forum-selection clause in the Agreement between Diamond Bermuda and appellant because they are "closely enough related to the signatory and the transaction." In a supplemental memorandum, appellees contended that appellant's original and first amended original petitions have virtually identical allegations of negligence and fault against the sole signatory Diamond Bermuda, and the non-signatory defendants participated in substantially-interdependent and concerted-misconduct. Appellees argued this forms an equitable basis for the non-signatory defendants to enforce the forum-selection clause in appellant's employment contract. Appellees further maintained that appellant's original and first amended original petitions identified both the signatory defendant and all non-signatory defendants as his employer, asserting identical employment related claims for negligence under the Jones Act and for maintenance and cure under the general maritime law. Appellees contended that appellant raised indistinguishable factual allegations against all appellees and established a "close-relationship" among appellees, which according to appellees, is an indispensable element of "intertwined- claims" estoppel.

         In his response and supplemental briefing, appellant argued that a plain reading of the employment agreement limits the scope of the forum-selection clause only to the parties of the employment agreement-appellant and Diamond Bermuda. Appellant also maintained that the non-signatory defendants could not enforce the forum-selection clause under theories of equitable estoppel because neither "substantially-interdependent and concerted-misconduct" nor "closely-related" and "intertwined-claims" are theories of equitable estoppel recognized under Texas law.

         On December 5, 2016, the trial court granted the non-signatory defendants' motion to dismiss based on the contractual forum-selection clause, but was silent as to which of the theories argued by the non-signatories was the basis for its dismissal. The trial court expressly found that it did not reach the arguments based on forum non conveniens. Appellant timely filed this appeal.

         II. ...


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