Appeal from the 269th District Court Harris County, Texas
Trial Court Cause No. 2013-06933
consists of Chief Justice Frost and Justices Boyce and Jewell
William J. Boyce Justice
Fredieu challenges the trial court's take-nothing
judgment following a jury trial in connection with an injury
he sustained while working on an offshore platform in the
Gulf of Mexico.
jury found that W&T Offshore Inc.'s negligence
proximately caused Fredieu's injury and awarded damages
totaling more than $1.7 million. The jury answered
"No" to a question asking whether Fredieu was
W&T Offshore's "borrowed employee" at the
time of the injury.
trial court signed a take-nothing judgment after disregarding
the jury's "No" answer to the borrowed employee
question; determining that Fredieu was W&T Offshore's
borrowed employee as a matter of law; and concluding that
"the borrowed-employee doctrine applies and bars Mr.
Fredieu's tort claims" because Fredieu's sole
remedy as W&T Offshore's borrowed employee is to
pursue compensation benefits under the Longshore and Harbor
Workers' Compensation Act (LHWCA).
reverse the trial court's take-nothing judgment because
disputed fact issues pertaining to Fredieu's status
preclude a matter-of-law determination that Fredieu was
W&T Offshore's borrowed employee. It was the
jury's province to resolve these fact issues, and the
jury did so by answering "No" to the charge
question asking whether Fredieu was a borrowed employee at
the time of his injury. Legally sufficient evidence supports
the jury's "No" answer. Additionally, legally
and factually sufficient evidence supports the jury's
award for future lost earning capacity based on Fredieu's
physical limitations following his injury.
injury occurred while he worked on the Ship Shoal 149-D
("Platform D"), a fixed platform located on the
outer Continental Shelf in the Gulf of Mexico off the
D is owned by W&T Offshore, which signed a Master Service
Contract with The Wood Group to perform platform service and
maintenance work. The Wood Group employed Fredieu as an
offshore platform operator.
was assigned to another platform owned by W&T Offshore
called the Ship Shoal 149-A ("Platform A"). He left
Platform A on the morning of October 20, 2011, and traveled
ten minutes by boat to Platform D. Fredieu was accompanied by
three employees from another contract company hired to make
welding repairs to handrails on Platform D. No W&T
Offshore employees were present on Platform D.
supervising the welding repairs and breaking for lunch,
Fredieu performed a "walk around" safety inspection
on Platform D and noticed a malfunction in a piece of
equipment called a "regulator."
Fredieu was disconnecting the regulator to bring it back to
Platform A for repair, a nearby one-inch pipe separated under
high pressure and struck him. The blow knocked Fredieu off
his feet; caused fractures in both bones of his left forearm;
and necessitated surgery to repair multiple fractures with
two metal plates and 13 screws.
filed an original petition in Harris County district court in
February 2013 invoking general maritime law and asserting a
negligence claim against W&T Offshore in connection with
his injury. At the close of a four-day trial in August 2015,
the jury answered a series of jury charge questions in
jury answered "Yes" as to W&T Offshore and
"No" as to Fredieu in response to Question No. 1,
which asked: "Did the negligence, if any, of either of
those named below proximately cause the injury in
question?" The jury did not answer Question No. 2, which
asked it to apportion the percentage of responsibility
attributable to W&T Offshore and Fredieu only if it
answered "Yes" as to both in response to Question
jury awarded individual dollar amounts for 12 separate
categories of Fredieu's past and future damages in
response to Question No. 3. The amounts are $100, 000 for
past physical pain; $75, 000 for physical pain that, in
reasonable probability, Fredieu will sustain in the future;
$85, 000 for past mental anguish; $75, 000 for mental anguish
that, in reasonable probability, Fredieu will sustain in the
future; $100, 000 for past physical impairment; $50, 000 for
physical impairment that, in reasonable probability, Fredieu
will sustain in the future; $93, 000 in past lost earning
capacity; $950, 000 in lost earning capacity that, in
reasonable probability, Fredieu will sustain in the future;
$25, 000 for past disfigurement; $25, 000 for disfigurement
that, in reasonable probability, Fredieu will sustain in the
future; $28, 000 in past medical expenses; and $142, 000 in
medical expenses that, in reasonable probability, Fredieu
will incur in the future.
jury answered "No" in response to Question No. 4,
which reads as follows:
Question No. 4
At the time of the injury in question, was Wesley Fredieu the
borrowed employee of W&T? Factors to consider in
determining whether Mr. Fredieu was the borrowed employee of
1) Who had the right of control over Mr. Fredieu and the work
he was performing, beyond mere suggestion of details or
2) Whose work was Mr. Fredieu performing?
3) Was there an agreement, understanding, or meeting of the
minds between Wood Group and W&T?
4) Did Mr. Fredieu acquiesce in the new work situation before
the injury in question?
5) Did Wood Group terminate its relationship with Mr. Fredieu
before the injury in question?
6) Who furnished the tools and place for employment?
7) Was the new employment over a considerable length of time?
8) Who had the right to terminate Mr. Fredieu's services
on the platforms in question?
9) Who had the obligation to furnish the funds from which Mr.
Fredieu was paid?
Answer "Yes" or "No"
nine factors listed in Question No. 4 track those set out in
Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th
Cir. 1969), for determining borrowed employee status under
filed a motion for entry of judgment in his favor in
conformity with the jury's verdict. W&T Offshore
filed "Defendant's Motion to Disregard Jury
Findings, For Determination of Borrowed-Employee Status as a
Matter of Law, and for Entry of a Take-Nothing
Judgment." This motion asked the trial court to
disregard the jury's "No" answer to Question
No. 4 on grounds that this answer is immaterial and
unsupported by the evidence. See Tex. R. Civ. P.
Offshore argued that the jury's "No" answer to
Question No. 4 should be disregarded because (1) "[t]he
determination of borrowed employee status is a question of
law;" (2) there are no factual disputes in this case
"on discrete issues pertaining to the issue of borrowed
employee status . . . [that] require specific fact
findings;" (3) Fredieu "did not request specific
fact findings on any particular issues relating to his
borrowed employee status - instead the jury was asked a
general, all-encompassing question on this legal issue;"
and (4) even when fact issues on particular borrowed employee
factors are present, judgment as a matter of law on this
issue nonetheless is appropriate when the remaining factors
point overwhelmingly to borrowed employee status.
parties filed many subsequent supplements, responses, and
replies during several months of extended post-verdict
briefing addressing borrowed employee status.
trial court granted W&T Offshore's motion,
disregarded the jury's "No" answer to Question
No. 4, and explained its basis for doing so in a Memorandum
Opinion and Order signed on March 29, 2016.
trial court's opinion states that "W&T Offshore
- the Party bearing the burden of proof and persuasion on the
borrowed-employee doctrine - failed to request a jury
question, let alone obtain a jury finding, on any individual
factor." It further states that "W&T Offshore
did request (and the Court granted) a broad-form
question asking whether Mr. Fredieu was W&T
Offshore's borrowed employee, but W&T did not request
any special-issue questions on any of the individual
Ruiz factors. As a result, W&T Offshore failed
to obtain any jury findings on any individual factors."
trial court's opinion notes that "neither W&T
Offshore nor Mr. Fredieu objected to the omission of a
question on any individual Ruiz factor. As a result,
the court may make a finding on any omitted factors for which
there is conflicting evidence." In support of this
conclusion, the opinion cited Texas Rule of Civil Procedure
279 and In re J.F.C., 96 S.W.3d 256 (Tex. 2002).
analyzing the evidence concerning individual Ruiz
factors for determining borrowed employee status, the trial
court stated as follows: "The Court concludes that the
balance of the Rui z factors favor concluding that
Mr. Fredieu was the borrowed employee of W&T Offshore. As
a result, the exclusive-remedy provision of the LHWCA
applies, and Mr. Fredieu's sole remedy against W&T
Offshore is recovery of workers' compensation benefits
under the LHWCA." The Memorandum Opinion and Order
contains 12 findings of fact pertaining to individual
trial court signed a take-nothing final judgment in
conformity with its Memorandum Opinion and Order, and Fredieu
extended discussion is needed concerning precisely how a
one-inch pipe separated under high pressure on Platform D and
struck Fredieu. This is so because W&T Offshore does not
contest the jury's finding that its negligence
proximately caused Fredieu's injury.
appellate fight focuses instead on W&T Offshore's
affirmative defense that no tort liability attaches because
Fredieu was acting as its LHWCA borrowed employee when the
injury occurred on Platform D.
parties do not challenge on appeal the trial court's
determinations that (1) "there was a substantial nexus
between Mr. Fredieu's injury and operations to extract
natural resources from the outer continental shelf;" and
(2) "[a]s a result, under the [Outer Continental Shelf
Lands Act] . . . the LHWCA applies" to Fredieu's
claim. See generally Pac. Operators Offshore, LLP v.
Valladolid, 565 U.S. 207, 222 (2012). Based on these
determinations, the trial court applied "the version of
the borrowed-employee doctrine developed by the federal
courts under the LHWCA." The parties do the same.
parties also do not dispute that the LHWCA provides
Fredieu's exclusive remedy if he was working as W&T
Offshore's borrowed employee at the time of his injury.
See Lomeli v. Sw. Shipyard, L.P., 363 S.W.3d 681,
685-86 (Tex. App.- Houston [1st Dist.] 2011, no pet.)
("Under the LHWCA, an employer's liability is
limited to workers' compensation benefits under the act .
. . ."); see also White v. Bethlehem Steel
Corp., 222 F.3d 146, 149 (4th Cir. 2000) (The definition
of "employer" under the LHWCA "encompasses
both general employers and employers who 'borrow' a
servant from that general employer."); Melancon v.
Amoco Prod. Co., 834 F.2d 1238, 1243 (5th Cir. 1988)
inquiry into Fredieu's LHWCA borrowed employee status
focuses on the nine Ruiz factors incorporated in the
instruction accompanying Question No. 4.
contends the trial court erred in disregarding the jury's
"No" answer to Question No. 4 regarding borrowed
employee status; determining that Fredieu was a borrowed
employee as a matter of law; and signing a take-nothing
judgment after concluding that "the borrowed-employee
doctrine applies and bars Mr. Fredieu's tort claims
against Defendant W&T Offshore, Inc." Fredieu raises
the following appellate issues.
1. The trial court erred in disregarding the jury's
"No" answer to Question No. 4 by which the jury
failed to find that Fredieu was W&T Offshore's
2. The trial court erred by ruling that Ruiz factors
1, 8, and 9 support a borrowed employee determination when
the evidence on these disputed factors supported the
jury's "No" answer to Question No. 4.
3. The trial court improperly worded the jury instructions on
the Ruiz factors regarding right to discharge and
obligation to pay.
Offshore raises a conditional cross-point asserting that
legally and factually insufficient evidence supports the
jury's finding in answer to Question No. 3(h) that
Fredieu in reasonable probability will sustain $950, 000 in
future lost earning capacity because of his injury.
See Tex. R. App. P. 25.1. W&T Offshore does not
challenge the sufficiency of the evidence supporting the
remaining $798, 000 awarded for Fredieu's past and future
address these issues in turn.
Waiver and Rule 279's Applicability
makes two threshold procedural arguments in conjunction with
his first issue.
he argues that W&T Offshore waived the affirmative
defense of borrowed employee by failing to request or obtain
jury findings on individual Ruiz factors. Second, he
argues that the trial court erred in applying Texas Rule of
Civil Procedure 279 and concluding the court could make fact
findings on disputed factors pertaining to borrowed employee
two arguments are intertwined because the application of
charge error waiver standards and Rule 279 depends on how the
underlying contentions are framed.
trial court noted that (1) W&T Offshore requested a
broad-form charge with a single yes-or-no answer blank for
Question No. 4, which asked whether Fredieu was a borrowed
employee at the time of his injury; (2) W&T Offshore did
not request individual answer blanks for each Ruiz
factor listed in the accompanying instruction; and (3)
neither W&T Offshore nor Fredieu objected at trial to the
omission of individual answer blanks on each Ruiz
factor. Based on these circumstances, the trial court
concluded that Rule 279 allowed it to "make a finding on
any omitted factors for which there is conflicting
argues initially that W&T Offshore waived any error in
the broad-form submission of Question No. 4 because it did
not request specific findings on individual Ruiz
factors or object to the absence of specific findings at the
Offshore argues that no waiver occurred because it does not
challenge on appeal the use of broad-form submission with a
single yes-or-no answer blank for Question No. 4 - a
complaint regarding the charge's format. See
Tex. R. Civ. P. 274, 277; see also Crown Life Ins. Co. v.
Casteel, 22 S.W.3d 378, 387-88 (Tex. 2000).
W&T Offshore contends that the jury's "No"
answer to Question No. 4 properly was disregarded because (1)
borrowed employee status "involves a question of law
beyond the province of the jury," which means the
jury's answer to Question No. 4 is immaterial; and (2)
"regardless of whether the question is one of law or of
fact, the evidence conclusively established a
borrowed-employee relationship." W&T Offshore raised
both contentions in its post-trial Rule 301 motion.
agree with W&T Offshore that no waiver occurred.
"no evidence" or "established as a matter of
law" contention regarding evidentiary sufficiency to
support a jury's answer can be preserved via charge
objection. See, e.g., T.O. Stanley Boot Co. v. Bank of El
Paso, 847 S.W.2d 218, 220 (Tex. 1992). But that is not
the only available mechanism; this contention also can be
preserved after trial by raising it in a Rule 301 motion to
disregard a particular jury answer based on legal
insufficiency of the evidence. Id.; see also Aero Energy,
Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.
1985). Further, a Rule 301 motion is a proper vehicle for
preserving a contention that a particular jury answer should
be disregarded as immaterial because the question
impermissibly called on the jury to answer a question of law.
See White Oak Operating Co. v. BLR Constr. Cos., 362
S.W.3d 725, 729 n.1 (Tex. App.-Houston [14th Dist.] 2011, no
pet.); Ballesteros v. Jones, 985 S.W.2d 485, 499
(Tex. App.-San Antonio 1998, pet. denied).
Offshore's Rule 301 motion preserved its appellate
contentions that the jury's "No" answer to
Question No. 4 should be disregarded on grounds that it is
immaterial and unsupported by any evidence. See C. &
R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.
1966) ("A jury's answer to a special issue may be
disregarded only when it has no support in the evidence or
when the issue is immaterial."). W&T Offshore did
not waive these contentions.
same time, we agree with Fredieu's contention that Rule
279's omitted element mechanism does not apply here
because these circumstances involve neither elements nor
When a ground of recovery or defense consists of more than
one element, if one or more of such elements necessary to
sustain such ground of recovery or defense, and necessarily
referable thereto, are submitted to and found by the jury,
and one or more of such elements are omitted from the charge,
without request or objection, and there is factually
sufficient evidence to support a finding thereon, the trial
court, at the request of either party, may after notice and
hearing and at any time before the judgment is rendered, make
and file written findings on such omitted element or elements
in support of the judgment.
Rule 279's run-on sentence is not a model of clarity,
focusing on the key term "elements" demonstrates
that the rule does not apply here in circumstances involving
a jury question that submitted all pertinent factors in a
flexible, multi-factor balancing test.
are necessary components of a viable cause of action or
defense under a particular theory. See, e.g., Clayton W.
Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529-30
(Tex. 1997) ("Because premises defect cases and
negligent activity cases are based on independent theories of
recovery, a simple negligence question, unaccompanied by the
Corbin elements as instructions or definitions,
cannot support a recovery in a premises defect case.")
(citing Keetch v. Kroger Co., 845 S.W.2d 262, 265-66
(Tex. 1992); H.E. Butt Grocery Co. v. Warner, 845
S.W.2d 258, 259-59 (Tex. 1992); and Corbin v. Safeway
Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)).
279 . . . directs courts how to proceed when an element of a
'ground of recovery or defense' is omitted from a
jury charge." In re J.F.C., 96 S.W.3d at 263.
"[W]hen some but not all elements of a claim or cause of
action are submitted to and found by a jury, and there is no
request or objection with regard to the missing element, a
trial court may expressly make a finding on the omitted
element . . . ." Id. at 262. "[I]f it does
not, the omitted element is deemed found by the court in a
manner supporting the judgment if the deemed finding is
supported by some evidence." Id. at 262-63.
parties have identified no case in which Rule 279's
deemed finding mechanism for supplying missing "elements
necessary to sustain [a] . . . ground of recovery or
defense" has been applied to a flexible, multi-factor
balancing test such as Question No. 4's borrowed employee
279's deemed finding mechanism does not fit the
circumstances here because no single Ruiz factor is
an "element necessary to sustain" W&T
Offshore's borrowed employee defense. See West v.
Kerr-McGee Corp., 765 F.2d 526, 531 (5th Cir. 1985)
("neither control nor any other single answer to the
inquiries 'is decisive, and no fixed test is used to
determine the existence of a borrowed-servant
relationship.'") (quoting Alday v. Patterson
Truck Line, Inc., 750 F.2d 375, 376 (5th Cir. 1985));
see also Ruiz, 413 F.2d at 312.
we were to equate flexible "factors" with necessary
"elements," Rule 279's deemed finding mechanism
still does not fit the circumstances here because the charge
did not omit any Ruiz factors concerning borrowed
instruction accompanying Question No. 4 includes all nine
Ruiz factors. The absence of individual answer
blanks for individual factors does not mean that Question No.
4 failed to submit these factors to the jury. The presence or
absence of individual answer blanks for individual factors
goes to a different inquiry regarding whether broad-form
submission of Question No. 4 is "feasible" under
Texas Rule of Civil Procedure 277. See Crown Life Ins.
Co., 22 S.W.3d at 387-88. Neither party asserts that the
trial court committed charge error by submitting a single
yes-or-no answer blank in Question No. 4 because (1)
broad-form submission was not feasible; and (2) individual
answers for individual factors therefore were necessary. The
absence of individual answer blanks does not drive the
analysis here because the parties do not challenge the
feasibility of broad-form submission.
follows that the circumstances here do not authorize fact
finding by the trial court with respect to Fredieu's
borrowed employee status. Accordingly, we do not address
whether sufficient evidence supports (1) the trial
court's independent findings on individual Ruiz
factors in its March 29, 2016 Memorandum Opinion and Order;
or (2) its independent determination that, when all of the
Ruiz factors are considered on balance, Fredieu was
W&T Offshore's borrowed employee at the time of his
focus instead on whether sufficient evidence supports the
jury's single "No" answer to Question No. 4.
This "No" answer is a failure to find that Fredieu
was a borrowed employee in response to a jury question that
properly placed the burden of proof for obtaining an
affirmative answer on W&T Offshore.
contends that the trial court erred by disregarding the
jury's single "No" answer to Question No. 4
under Rule 301 because that answer was material and supported
by sufficient evidence when all of the Ruiz factors
are considered on balance. W&T Offshore counters that the
trial court properly disregarded the jury's single
"No" answer to Question No. 4 because it submitted
a question of law and "[t]here were no discrete factual
issues that required jury findings" with respect to the
factors pertaining to borrowed employee status; it also
contends that "[t]he evidence at trial conclusively
established" Fredieu's status as W&T
Offshore's borrowed employee when he was injured. We
discuss these contentions below in the course of addressing
Fredieu's first and second issues.
Determination of Borrowed Employee Status
Is Question No. 4 Immaterial Because it Submits a Question of
Offshore initially contends that the trial court properly
disregarded the jury's answer to Question No. 4 as
immaterial under Rule 301 because "[f]ederal law renders
Fredieu's borrowed-employee status a legal question, not
a fact question." W&T Offshore further argues that
"the question of whether Fredieu was W&T's
borrowed employee is a question of law, not a
question of fact for a jury." We reject this
contention on this record.
issue of borrowed employee status is generally a question of
law for the trial court, but 'some cases involve factual
disputes and those cases require findings by the fact
finder.'" Lomeli, 363 S.W.3d at 686
(quoting Brown v. Union Oil Co. of Cal., 984 F.2d
674, 677 (5th Cir. 1993) (per curiam)).
disputes can exist with respect to the underlying bases for
findings on individual factors. See, e.g., Brown,
984 F.2d at 677 ("In the instant case, factual findings
concerning the first and third factors should have been made
prior to the district court's determination of borrowed
employee status."); see also West, 765 F.2d at
531; Alday, 750 F.2d at 378. A factual dispute also
can exist when some of the Ruiz factors weigh in
favor of a borrowed employee finding and other factors weigh
against such a finding. See West, 765 F.2d at 531
(citing Alday, 750 F.2d at 376-78).
on the record and the circumstances surrounding a particular
relationship, resolution of the borrowed employee inquiry
sometimes can be accomplished without submission to a fact
finder at trial. See, e.g., Gaudet v. Exxon Corp.,
562 F.2d 351 (5th Cir. 1977) (affirming summary judgment for
the defendant despite an express contract clause disclaiming
borrowed employee status because all other factors
overwhelmingly established the plaintiff's status as
Exxon's borrowed employee while working on an Exxon
platform), cert. denied, 436 U.S. 913 (1978);
see also Lomeli, 363 S.W.3d at 694 ("Even if we
assume that the third factor . . . weighs against a borrowed
employee finding and that the seventh factor . . . is neutral
in the analysis, the remaining factors weigh in favor of
borrowed employee status. We conclude that the summary
judgment record establishes that Lomeli was Southwest's
depending on the record and the circumstances surrounding a
particular relationship, resolution of the borrowed employee
inquiry sometimes requires submission to a fact finder at
trial. See, e.g., Brown, 984 F.2d at 679
("[T]he contract provision between the two employers
weighs against borrowed employee status, and the remaining
factors do not overwhelmingly show that Brown was a borrowed
employee. Important factual questions need to be resolved,
including: (1) Who gave Brown instructions on how and when to
clean the platform? (2) What was the agreement or
understanding between Union and Gulf Inland regarding
borrowed employee status?").
this reason, we cannot agree with W&T Offshore's
initial contention that "the jury's finding in
response to the borrowed employee question was properly
disregarded as immaterial because it involves a question of
law beyond the province of the jury" in all
circumstances. Determining whether borrowed employee status
is treated as a question of law or fact in any given case
requires analysis of evidence pertaining to individual
turn to that task.
Sufficiency of the Evidence Supporting the Jury's
"No" Answer to Question No. 4
Standard of review
jury answered "No" to Question No. 4 asking whether
Fredieu was a borrowed employee - an affirmative defense on
which W&T Offshore bore the burden of proof. See
Lomeli, 363 S.W.3d at 685.
contends that the trial court erred in disregarding the
jury's "No" answer to Question No. 4 based on
W&T Offshore's Rule 301 motion, which challenged the
legal sufficiency of the evidence supporting this
"No" answer. "To successfully challenge the
legal sufficiency of an adverse finding on an issue on which
it has the burden of proof, such as an affirmative defense, a
party must conclusively establish all vital facts in support
of that issue." WCW Int'l, Inc. v.
Broussard, Nos. 14-12-00940-CV, 14-12-01077-CV,
14-12-01139-CV, 2014 WL 2700892, at *3 (Tex. App.-Houston
[14th Dist.] June 3, 2014, pet. denied) (mem. op.) (citing
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001) (per curiam)).
applying this standard, we consider whether the evidence
adduced at trial would enable reasonable and fair-minded
people to reach the verdict under review. City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We look at
the evidence in the light most favorable to the verdict and
indulge every reasonable inference to support it. Id. at
822. We credit favorable evidence if a reasonable juror
could do so and disregard contrary evidence if a reasonable
juror could not credit it. Id. at 827. If the
evidence falls within the zone of reasonable disagreement, we
may not invade the role of the fact finder, who ...