Augusta Barge Company v. Five B's, Inc.

Opinion issued August 26, 2014

In The

Court of Appeals

For The

First District of Texas

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NO. 01-13-00092-CV

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AUGUSTA BARGE COMPANY, Appellant

V.

FIVE B’S, INC., Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Case No. 07-CV-0920

MEMORANDUM OPINION

Appellant, Augusta Barge Company (“Augusta”), challenges the trial court’s

judgment, entered after a trial to the court, in favor of appellee, Five B’s, Inc.

(“Five B’s”), in Five B’s suit seeking contribution from Augusta for maintenance

and cure expended to a deckhand after a towboat collision. In two issues, Augusta

contends that the evidence is legally and factually insufficient to support the trial

court’s allocation of fault and its finding that Five B’s is “entitled to

reimbursement of future maintenance and cure.”

We affirm.

Background

Captain L. Edwards testified that at approximately 5:30 a.m. on July 6, 2007,

he piloted the Murray L II (“MLII”), a towboat owned by Augusta, through the

Leland Bowman Lock in the Intracoastal Waterway in Louisiana. He noted that

the MLII had been experiencing various mechanical problems for several days: its

engines had stopped running and had to be repaired, and its port rudder had been

“knocked off” when the vessel had run aground. As the MLII passed through the

lock, it again experienced engine problems. Edwards steered the MLII, which was

underway without barges or tow, into the bank of the waterway, and he engaged

the engines to hold it in place for repairs. Edwards then left the wheelhouse and

went below to the engine room to assist the crew. He did not tie the MLII to the

nearby pilings, appoint a lookout, or take a radio with him.

Captain L. Walker testified that on the morning of July 6, 2007, he piloted

the Captain Les Barrois (“Capt Les”), a towboat owned by Five B’s, through the

Leland Bowman Lock, pushing two empty barges. As he headed east through the

waterway, he saw the MLII ahead at the bank. At the back of the MLII, he noted

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“wheel wash,” which indicated that its engines were running. Moments later, he

saw the MLII move away from the bank and into the center of the waterway toward

his barges. Walker attempted to contact the MLII by radio and beacon, but did not

receive any response. When the MLII was approximately eighty feet away, it

began running parallel with the Capt Les. Thinking that the wheelhouse of the

MLII was manned, and noting that the boats were maintaining a safe distance,

Walker maintained his course. He continued to try to communicate with the MLII

by radio and beacon to coordinate passing or overtaking, but the crew of the MLII

did not respond. Rather, it increased its speed and began to overtake and pass the

Capt Les. Suddenly, the MLII changed course, turned almost ninety degrees, and

crossed in front of the lead barge being pushed by the Capt Les. Walker attempted

to avoid a collision by reversing engines. But the MLII collided with the lead

barge, the bow of the barge momentarily rode up over the bow of the MLII, and

both vessels stopped.

Douglas Gay, a Five B’s deckhand on the Capt Les, testified that at the time

of the collision, he was in the engine room, standing on one foot as he pulled off

his slicker suit, and he “slammed” back into a handrail, injuring his back. He got

up and went to the wheelhouse, where Captain Walker was “still trying to get

ahold of” anyone on the MLII over his radio. Hours later, Gay reported that he

had suffered an injury to his back during the collision. Subsequently, Five B’s

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began paying Gay for “maintenance and cure,”1 and he underwent back surgery.

Gay then sued Five B’s under the Jones Act and general maritime law, seeking

recovery for maintenance and cure, negligence, and unseaworthiness. And he sued

Augusta for negligence. Five B’s cross-claimed against Augusta for contribution

or indemnification.

Captain G. Nichols, a Five B’s maritime expert witness, testified that

Captain Walker kept “a proper lookout,” saw the MLII, and monitored it. Nichols

explained that when Walker saw the MLII coming toward his barge, he

maneuvered to try to avoid a collision. And when the MLII began to go under the

bow of the barge, Walker maneuvered to avoid hitting the wheelhouse and

capsizing the MLII. Nichols opined that the collision was caused by Captain

Edwards’s failure to tie the MLII to the pilings and maintain a lookout or monitor

the radio, which he asserted violated certain federal regulations. 2 Nichols testified

that the Capt Les had the right-of-way, Walker’s “actions were proper under the

circumstances,” neither Walker nor Five B’s “had any fault in the collision,” and

the “sole cause of the collision” was the MLII coming off the bank.

Captain J. Sutton, Augusta’s maritime expert witness, opined that Captain

Walker failed to perceive the risk as the MLII approached and, not knowing the

1

“Maintenance and cure entitles a seaman who is injured or becomes ill while in the

service of a ship to food, lodging, and necessary medical services.” Maritime

Overseas Corp. v. Waiters, 917 S.W.2d 17, 18 (Tex. 1996).

2

See 33 C.F.R. §§ 83.05, 83.17, 162.75 (2013).

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MLII’s intentions or successfully reaching the MLII’s crew via radio or beacon,

failed to “blow the danger signal.” Sutton further opined that it was “impossible”

for the MLII to have made the sudden turn that Walker described and, thus, the

MLII must have instead drifted out into the middle of the canal, where Walker

should have seen it. Although he agreed that Captain Edwards should not have left

the wheelhouse of the MLII, Sutton explained that he did so, in regard to making

repairs, because he was most knowledgeable man on board.

Ajay Bindal, M.D., testified that after the collision, he treated Gay for his

back injury. He opined that Gay had a spinal defect, known as spondylolysis, that

was caused or exacerbated by the collision and necessitated spinal fusion surgery,

which he undertook in June 2008. Bindal noted that Gay had not yet reached

Maximum Medical Improvement (“MMI”), a second surgery might be necessary,

and he would be in pain for the rest of his life. He explained that Gay would,

based on reasonable medical probability, require medical treatment in the future,

namely, “doctor visits, pain medication, imaging studies, [and] possible therapy” at

a cost of “$3,000 a year, each year, for the rest of his life.” And Gay would reach

MMI “hopefully, in the next six months” (after Bindal’s October 2008 deposition).

James Yeager, Five B’s expert economist, testified that the then present

value of Gay’s future medical costs ranged from $90,000 to $186,164, depending

on whether Gay needed a second surgery. Yeager calculated future maintenance

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based on Bindal’s estimate of $20.00 per day for six months, through April 2009.

And he calculated “future medical expenses” using Bindal’s estimate of $3,000 per

year for the duration of Gay’s life expectancy.

In 2009, after Five B’s had paid Gay $69,241.08 in past maintenance and

cure, Gay settled with Five B’s for an additional $115,000, which was divided into

$25,000 for Gay’s Jones Act claim and $90,000 for Gay’s future maintenance and

cure. And Gay non-suited Five B’s and Augusta.

The trial court found that Augusta was seventy-five percent at fault for

causing the collision, Five B’s was twenty-five percent at fault, and the total

maintenance and cure incurred by Five B’s was $159,241.08, including $69,241.08

paid before settlement and $90,000 paid to settle Gay’s future maintenance and

cure claim. The trial court ordered that Five B’s recover from Augusta a total of

$119,430.81 in reimbursement for maintenance and cure, plus interest and costs.

And it issue findings of fact and conclusions of law.

Standard of Review

In an appeal from a judgment rendered after a bench trial, the trial court’s

findings of fact have the same weight as a jury’s verdict, and we review the legal

and factual sufficiency of the evidence used to support them, just as we would

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review a jury’s findings. 3 Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).

In conducting a legal sufficiency review, we consider all of the evidence in the

light most favorable to the verdict and indulge every reasonable inference that

would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In

determining whether legally sufficient evidence supports the finding under review,

we must consider evidence favorable to the finding if a reasonable fact finder could

consider it, and disregard evidence contrary to the finding unless a reasonable fact-

finder could not disregard it. Id. at 827; Brown v. Brown, 236 S.W.3d 343, 348

(Tex. App.—Houston [1st Dist.] 2007, no pet.). When a party attacks the legal

sufficiency of an adverse finding on which it did not have the burden of proof, it

must demonstrate that there is no evidence to support the adverse finding.

Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Bellino v. Comm’n for

Lawyer Discipline, 124 S.W.3d 380, 385 (Tex. App.—Dallas 2003, pet. denied).

We will sustain a legal-sufficiency or “no evidence” challenge if the record shows

one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of

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Five B’s urges us to apply state legal and factual sufficiency standards of review.

Augusta does not present any standards of review for us to apply; however, in its

reply brief, it states that it takes no issue with the standards urged by Five B’s. We

note that the Jones Act applies to employees seeking damages from their maritime

employers, not to maritime employers seeking damages from third-party

tortfeasors, as here. See 46 U.S.C. § 30104 (2006); Marine Transp. Corp. v.

Methodist Hosp., 221 S.W.3d 138, 147 (Tex. App.—Houston [1st Dist.] 2006, no

pet.); see also Maritime Oveseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex.

1998).

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law or evidence bar the court from giving weight to the only evidence offered to

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a

scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact.

City of Keller, 168 S.W.3d at 810.

In conducting a factual-sufficiency review, we review all of the evidence in

a neutral light and will reverse only if the evidence supporting the finding is so

weak or the finding is so against the great weight and preponderance of the

evidence that it is clearly wrong or manifestly unjust. See Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 242 (Tex. 2001); Plas–Tex, Inc. v. U.S. Steel Corp., 772

S.W.2d 442, 445 (Tex. 1989). In a bench trial, the trial court is the sole judge of

the witnesses’ credibility, and it may choose to believe one witness over another; a

reviewing court may not impose its own opinion to the contrary. See Golden Eagle

Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Zenner v. Lone Star

Striping & Paving L.L.C., 371 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.]

2012, pet. denied).

We review a trial court’s conclusions of law de novo. BMC Software

Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Although a trial

court’s conclusions of law may not be challenged for factual sufficiency, we may

review the legal conclusions drawn from the facts to determine whether the

conclusions are correct. Id. If we determine that a conclusion of law is erroneous,

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but the trial court nevertheless rendered the proper judgment, the error does not

require reversal. Id.

Liability

In its first issue, Augusta argues that the evidence is legally and factually

insufficient to support the trial court’s finding that it is seventy-five percent at fault

for Gay’s injuries because the “substantial negligence of Captain Walker and Five

B’s superseded any minor negligence, if any, of Augusta; and as such, was the sole

proximate cause of the personal injuries.” Augusta further asserts that the evidence

is legally and factually insufficient to support the trial court’s findings of fact

numbers 5, 12, 13, and 14.

“Maintenance and cure are maritime terms describing a seaman’s right to

receive food and lodging (maintenance) and necessary medical services (cure).”

Liberty Seafood, Inc. v. Herndon Marine Prods., Inc., 38 F.3d 755, 757 (5th Cir.

1994). It is well-established that a ship owner required to pay maintenance and

cure may recover those payments from a third-party who caused, in whole or in

part, the employee’s injury. Id. This right is not extinguished when the ship owner

is apportioned part of the fault. Id. Further, an employer’s right to recover

maintenance and cure from a tortfeasor is not extinguished by settlement. Id.;

Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1015 (5th Cir. 1994). Rather, a

ship owner remains entitled to contribution from the third-party tortfeasor in

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proportion to the third-party’s fault. Liberty Seafood, Inc., 38 F.3d at 757. To

recover damages for maintenance and cure from a third-party tortfeasor, the ship

owner must first show that the third party caused injury to the seaman. Id.; Marine

Transp. Corp. v. Methodist Hosp., 221 S.W.3d 138, 148 (Tex. App.—Houston [1st

Dist.] 2006, no pet.).

“When a state court hears an admiralty case, that court occupies essentially

the same position occupied by a federal court sitting in diversity: the state court

must apply substantive federal maritime law but follow state procedure.” Mar.

Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). In admiralty cases, the

trial court’s rulings on “negligence, cause, and proximate cause are findings of

fact,” including the allocation of liability. Bertram, 35 F.3d at 1019. Here, the

trial court found that Augusta was seventy-five percent at fault for the collision and

Five B’s was twenty-five percent at fault.

The record shows that Captain Edwards admitted that, at the time of the

collision, he had a duty to maintain a lookout, he left the wheelhouse of the MLII

without a lookout, and the MLII moved away from the bank and into the center of

the channel, where it collided with the Capt Les.

Captain Nichols opined that the collision was caused by Captain Edwards’s

failure to tie the MLII to the pilings and maintain a lookout or monitor the radio,

which he asserted violated certain federal regulations. See 33 C.F.R. §§ 83.05,

10

83.17, 162.75 (2013). Nichols explained that the Capt Les had the right-of-way,

Captain Walker’s “actions were proper under the circumstances,” neither Walker

nor Five B’s “had any fault in the collision,” and the “sole cause of the collision”

was the MLII coming off the bank. And Dr. Bindal testified that the collision

caused Gay’s injuries.

Captain Sutton opined that because it was “impossible” for the MLII to have

made the turn Captain Walker described, it must have instead drifted out into the

middle of the canal, where Walker should have seen it. Sutton did not dispute,

however, that the MLII was in the center of the channel at the time of the collision.

And he agreed that Captain Edwards should not have left the wheelhouse.

Augusta asserts that the trial court erred in impliedly not finding that Captain

Walker’s “violations of the Inland Navigational Rules,” namely, his failure to

sound a warning, “i.e., danger signal, general alarm, reversal of engines,” was the

proximate cause of Gay’s injuries. Augusta argues that if Walker had “sounded

the danger signal,” Gay would not have been injured because his testimony reflects

that he would have “immediately walked up to the pilothouse.” And Walker’s

failure to “sound the required danger signal was a substantial, if not sole cause,” of

the collision and Gay’s injuries.

Captain Walker testified that the MLII “all of the sudden . . . made a 90-

degree turn right in front of the tow.” He explained that he “threw the engines in

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reverse” approximately “five seconds” before the lead barge hit the MLII. And

Captain Nichols testified that even if Walker had sounded an alarm, it would not

have changed the circumstances. From this evidence, the trial court could have

reasonably found that Walker did not have an opportunity to sound a warning

alarm prior to impact. See Jackson, 116 S.W.3d at 761.

We conclude that there is more than a scintilla of evidence to support the

trial court’s finding that Augusta was at least seventy-five percent at fault for the

collision and damages to Gay. See City of Keller, 168 S.W.3d at 810. We further

conclude that the evidence is not so weak as to make the trial court’s findings

clearly wrong or manifestly unjust. See Francis, 46 S.W.3d at 242.

Augusta further challenges the following trial court findings of fact:

5. [Captain Walker] was piloting the Capt Les at the time of the

collision. He was adequately rested and situationally aware

during the relevant period of time. The Capt Les and her tow

were under way in the waterway at a speed of 3–5 miles per

hour.

....

12. When the MLII was approximately 80 feet off Capt Les’s

starboard side, the MLII altered course and began running

parallel with the Capt Les. In Walker’s judgment, as well as

that of Edwards, this was a safe distance. [Walker] decided to

maintain the Capt Les’s course and speed.

13. The MLII then increased speed and began overtaking and

passing the Capt Les.

14. Suddenly and without warning, the MLII changed course to

port, crossing in front of the Capt Les. Walker took immediate

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evasive action to avoid the collision. Nonetheless, the bow of

the Capt Les’s forward barge contacted the MLII.

Augusta argues that the trial court’s finding that Captain Walker was

adequately rested and situationally aware is erroneous because it “was not

supported by any evidence” and the “credible evidence” is “overwhelming” that he

was, “at the time of the accident, sleep-deprived and physically fatigued,” having

worked “almost 24 hours a day for almost two days.” Augusta asserts that federal

law prohibits a crewman from working more than 12 hours in a 24-hour period and

“[t]he logs of the Capt Les show that the vessel was working continuously from

July 4th at approximately 11:00 a.m. when the vessel left Freeport, Texas, until

approximately 5:30 a.m. on July 6th when the vessel collided with the [MLII].”

See 46 U.S.C. § 804(a)

Captain Walker testified that he was the only licensed wheelman on board

the Capt Les and Gay was relieving him for periods of rest. On the morning of the

collision, Walker had been asleep for “at least six hours” before he came on watch

at 5:30 a.m. The collision occurred at approximately 5:45 a.m., and it is

undisputed that it occurred in the center of the channel. Augusta does not assert

that Walker veered the Capt Les into the MLII at the bank.

Captain Nichols “did not find any evidence that [Captain] Walker did not

have situational awareness” at the time of the incident. To the contrary, Nichols

testified that Walker was aware, kept “a proper lookout,” “saw the MLII from a

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mile away,” monitored it, and “continued to steer his tow in the proper manner.”

Nichols explained that when Walker saw the MLII coming toward his barge, he

maneuvered to try to avoid a collision. And when the MLII began to go under the

bow of the barge, Walker maneuvered to avoid hitting the wheelhouse and

capsizing the MLII. We conclude that legally and factually sufficient evidence

supports finding number 5.

In regard to its challenges of findings 12 through 14, “particularly the

maneuvers of the MLII,” Augusta asserts that the findings are “inconsistent with

what a towboat without a pilot can do” and the “laws of nature and laws of physics

clearly dictate that the trial court’s findings were clearly erroneous.” Specifically,

Augusta asserts that the finding that the MLII was “unmanned during all relevant

periods” is inconsistent with the finding that the vessel made a 90-degree turn into

the barge and increased throttle. Augusta points to Captain Edwards’s testimony

that he left the MLII pushed into the bank and Captain Sutton’s testimony that

because the MLII had “only one rudder,” it would be “locked in place and would

not be able to move unless someone was actually manning the bridge and moving

the steering arm.”

The undisputed evidence, however, is that the collision occurred in the

center of the channel, not at the bank, and some 300 yards away from the place

where Captain Edwards stated he originally pushed the MLII into the bank. And

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Captain Walker testified that a vessel with mechanical issues and a missing rudder

can turn erratically in water currents. To the extent this presented a credibility

dispute, the trial court could have chosen to believe Walker. See Jackson, 116

S.W.3d at 761. We conclude that the evidence is legally and factually sufficient to

support findings 12 through 14.

Accordingly, we hold that the trial court’s allocation of fault is supported by

legally and factually sufficient evidence. See City of Keller, 168 S.W.3d at 810;

Francis, 46 S.W.3d at 242; see also Bass v. Phoenix Seadrill/78 Ltd., 749 F.2d

1154, 1166 (5th Cir. 1985) (concluding that even if subsidiary findings were

clearly erroneous, sufficient evidence supported ultimate fault allocation).

We overrule Augusta’s first issue.

Maintenance and Cure

In its second issue, Augusta argues that the evidence is legally and factually

insufficient to support the trial court’s finding that Five B’s is entitled to

contribution for future maintenance and cure because Five B’s presented “no

evidence of future maintenance and cure, but only future medical payments.” It

asserts that the trial court “confused one of the damage elements of a Jones Act

claim, namely, ‘future medical expenses,’ with the general maritime law doctrine

of ‘cure.’”

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“Maintenance is a per diem living allowance paid so long as [a] seaman is

outside the hospital and has not reached the point of ‘maximum cure,’” while

“[c]ure involves the payment of therapeutic, medical and hospital expenses not

otherwise furnished to the seaman . . . .” Prude v. W. Seafood Co., 769 S.W.2d

663, 664 (Tex. App.—Houston [14th Dist.] 1989, no writ). Maintenance and cure

“extends during the period when [the seaman] is incapacitated to do a seaman’s

work and continues until he reaches maximum medical recovery.” Vaughan v.

Atkinson, 369 U.S. 527, 531, 82 S. Ct. 997, 1000 (1962). Maximum medical

recovery, or maximum medical improvement (“MMI”), “is achieved when it

appears probable that further treatment will result in no improvement of the

seaman’s condition.” Prude, 769 S.W.2d at 664. Admiralty courts liberally

interpret the duty to provide maintenance and cure “for the benefit and protection

of seamen who are its wards.” Vaughan, 369 U.S. at 531–32, 82 S. Ct. at 1000.

Any ambiguity or doubt regarding a seaman’s right to receive maintenance and

cure is to be resolved in his favor. Id.

Here, Five B’s settlement agreement with Gay, which was admitted into

evidence, provides that Five B’s paid Gay $90,000 for future maintenance and

cure. Further, Dr. Bindal testified that Gay had not yet reached MMI, a second

surgery might be necessary, and he would be in pain for the rest of his life. He

opined that Gay would, based on reasonable medical probability, require medical

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treatment in the future, namely, “doctor visits, pain medication, imaging studies,

[and] possible therapy” at a cost of “$3,000 a year, each year, for the rest of his

life.” He anticipated that Gay would reach MMI, “hopefully, in the next six

months” (from Bindal’s October 2008 deposition). The trial court found the care

prescribed by Bindal to be “necessary as a result of the subject collision and the

costs projected by him to be reasonable.” The trial court further found that there is

“no evidence that Gay had reached MMI or that cure had been suspended.”

Yeager testified that the present value of Gay’s future medical costs would

range from $90,000 to $186,164, depending on whether Gay needed a second

surgery. He calculated future maintenance based on Dr. Bindal’s estimate of

$20.00 per day for six months, through April 2009, or $2,400. And he calculated

“future medical expenses,” again using Bindal’s estimate of $3,000 per year for the

expected duration of Gay’s life, which he testified was 32.28 years, based on life

expectancy tables. The trial court found Yeager’s testimony, which was

unrebutted, was credible and reliable, and it found that his testimony established

the present value of cure pertaining to Gay. It concluded that Augusta was liable

for seventy-five percent of the $90,000 that Five B’s had paid to Gay for future

maintenance and cure.

Augusta asserts that “while future medical expenses may include treatment

or medicines to relieve pain, . . . it would not include treatment or medicines which

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are merely palliative.” In support of its argument, it relies on Lewis v. Isthmian

Lines, Inc., 425 S.W.2d 893, 895 (Tex. Civ. App.—Houston [14th Dist.] 1968, no

writ). In Lewis, however, the court held that the seaman’s right to recover cure

ceased when he reached his maximum recovery or ceased to avail himself of

curative treatment. Id. And thereafter, continuation of treatment does not continue

the right to maintenance if that treatment is palliative, only, as distinguished from

curative treatment. Id. Here, the trial court found that there was “no evidence that

Gay had reached MMI or that cure had been suspended.”

In regard to Augusta’s assertion that the trial court “confused” future

medical expenses with the general maritime law doctrine of cure, we note that cure

“involves the payment of therapeutic, medical and hospital expenses.” Prude, 769

S.W.2d at 664 (emphasis added).

Augusta further asserts that “Five B’s may only seek to recover from

Augusta maintenance and cure that it paid to or for Gay, its seaman.” As noted,

the Five B’s settlement agreement with Gay, which was admitted into evidence,

establishes that Five B’s paid Gay $90,000 for future maintenance and cure.

In its reply brief, Augusta asserts for the first time that “an award of

maintenance and cure in a lump sum to defray the costs of meeting both past needs

and anticipated future needs based upon the seaman’s life expectancy is not

permissible.” Generally, “[t]he award of a lump sum in anticipation of a

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continuing need of maintenance and cure for life or an indefinite period is without

support in judicial decision.” Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 530, 58

S. Ct. 651, 654 (1938) (emphasis added). In Calmar, the Supreme Court explained

that

[t]he seaman’s recovery must . . . be measured in each case by the

reasonable cost of that maintenance and cure to which he is entitled at

the time of trial, including, in the discretion of the court, such amounts

as may be needful in the immediate future for the maintenance and

cure of a kind and for a period which can be definitely ascertained.

Id. at 531–32, 58 S. Ct. at 655 (emphasis added). For instance, “maintenance and

cure is more certain if more limited in its benefits,” “does not hold a ship to

permanent liability for a pension,” or “give a lump-sum payment to offset

disability based on some conception of expectancy of life.” Farrell v. United

States, 336 U.S. 511, 519, 69 S. Ct. 707, 711 (1949).

Although lump sum awards for maintenance and cure are not ordinarily

made, lump sum awards may be made if they are “limited and ascertainable.”

Diamond Offshore Mgmt. Co. v. Cummings, No. 01-08-00647-CV, 2010 WL

1611391, at *6 (Tex. App.—Houston [1st Dist.] Apr. 22, 2010, pet. denied); see

Lirette v. K & B Boat Rentals, Inc., 579 F.2d 968, 969 (5th Cir. 1978) (concluding

that judgment awarding future maintenance and cure to claimant “until he has

reached maximum cure” did not contravene Calmar); see also Pallis v. United

States, 369 F.App’x 538, 546 (5th Cir. 2010) (holding that trial court erred in

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denying future maintenance because, having found that claimant would incur

future medical expenses for physical therapy and knee replacement surgery, the

court “implied a definite period of time for the completion of that treatment” under

Calmar and progeny).

Here, the amount of Gay’s maintenance and cure has already been decided

by settlement. And the settlement agreement was admitted into evidence at trial.

Thus, the amount of maintenance and cure at issue, $90,000, is “limited and

ascertainable.”

We conclude that legally and factually sufficient evidence supports the trial

court’s finding that Five B’s paid Gay $90,000 to “settle the balance of his

maintenance and cure.” See City of Keller, 168 S.W.3d at 810; Francis, 46 S.W.3d

at 242. We further conclude that legally sufficient evidence supports the trial

court’s conclusions that Five B’s is entitled to contribution and “Augusta is

responsible for 75 percent” of Gay’s future maintenance and cure. See Liberty

Seafood, Inc., 38 F.3d at 757 (stating ship owner entitled to contribution for sums

paid in maintenance and cure from third-party tortfeasor in proportion to third-

party’s fault); Bertram, 35 F.3d at 1015–16 (stating employer’s right to recover

maintenance and cure from tortfeasor not extinguished by settlement).

We overrule Augusta’s second issue.

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Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Bland, and Massengale.

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