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Fredieu v. W&T Offshore, Inc.

Court of Appeals of Texas, Fourteenth District

June 26, 2018

WESLEY FREDIEU, Appellant
v.
W&T OFFSHORE, INC., Appellee

          On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 2013-06933

          Panel consists of Chief Justice Frost and Justices Boyce and Jewell

          OPINION

          William J. Boyce Justice

         Wesley 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.

         The 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.

         The 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).

         We 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.

         Background

         Fredieu's 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 Louisiana coast.

         Platform 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.

         Fredieu 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.

         After 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."

         As 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.

         Fredieu 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 Fredieu's favor.

         The 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 No. 1.

         The 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.

         The 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 W&T include
1) Who had the right of control over Mr. Fredieu and the work he was performing, beyond mere suggestion of details or cooperation?
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"
Answer NO

         The 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 the LHWCA.

         Fredieu 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. 301.

         W&T 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.

         The parties filed many subsequent supplements, responses, and replies during several months of extended post-verdict briefing addressing borrowed employee status.

         The 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.

         The 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."

         The 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).

         After 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 Ruiz factors.

         The trial court signed a take-nothing final judgment in conformity with its Memorandum Opinion and Order, and Fredieu timely appealed.

         Analysis

         No 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.

         The 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.

         The 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.

         The 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) (same).

         The inquiry into Fredieu's LHWCA borrowed employee status focuses on the nine Ruiz factors incorporated in the instruction accompanying Question No. 4.

         Fredieu 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 borrowed employee.
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.

         W&T 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 damages.

         We address these issues in turn.

         I. Waiver and Rule 279's Applicability

         Fredieu makes two threshold procedural arguments in conjunction with his first issue.

         First, 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 status.

         These two arguments are intertwined because the application of charge error waiver standards and Rule 279 depends on how the underlying contentions are framed.

         The 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 evidence."

         Fredieu 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 charge conference.

         W&T 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).

         Instead, 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.

         We agree with W&T Offshore that no waiver occurred.

         A "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).

         W&T 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.

         At the 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 omissions.

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.

         Although 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.

         Elements 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)).

         "Rule 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.

         The 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 instruction.

         Rule 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.

         Even if 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 employee status.

         The 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.

         It 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 injury.

         We 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.

         Fredieu 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.

         II. Determination of Borrowed Employee Status

         A. Is Question No. 4 Immaterial Because it Submits a Question of Law?

         W&T 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.

         "The 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)).

         Factual 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).

         Depending 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 borrowed employee.").

         And, 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?").

         For 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 factors.

         We now turn to that task.

         B. Sufficiency of the Evidence Supporting the Jury's "No" Answer to Question No. 4

         1. Standard of review

         The 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.

         Fredieu 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)).

         In 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 ...


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