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No. _ IN THE SUPREME COURT OF TEXAS DIAMOND OFFSHORE

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No. _ IN THE SUPREME COURT OF TEXAS DIAMOND OFFSHORE Powered By Docstoc
					                                  No.                        _

                                       IN THE
                               SUPREME COURT OF TEXAS



                   DIAMOND OFFSHORE MANAGEMENT COMPANY
                                      and
                     DIAMOND OFFSHORE SERVICES COMPANY,
                                  Petitioners

                                               vs.

                                JOHNATHAN CUMMINGS,
                                      Respondent



                        IDENTITY OF PARTIES AND COUNSEL


        In compliance with Rule 53.2(a) of the Texas Rules of Appellate Procedure,
Petitioners certify that the following is a complete list of the names of all parties to the trial
court's final judgment, and the names and addresses of all trial and appellate counsel:

I.      Johnathan Cummings
        13102 Fallsview Lane, #5207
        Houston, Texas 77077
        Plaintiff/Appellee/Respondent

2.      John Schwambach
        Texas State Bar No. 17858450
        Mark Murray
        Texas State Bar No. 14724810
        John Stevenson
        Texas State Bar No. 19196050
        Jolm Stevenson & Associates, P.c.
        24 Greenway Plaza, Suite 750
        Houston, Texas 77046
        Telephone: (713) 622-3223


PETITION FOR REVI EIV                                                                        Pagei
                 IDENTITY OF PARTIES AND COUNSEL (cont.)


        Facsimile: (713) 622-3224
        Trial and Appellate Counsel for Plaintiff/Appellee/Respondent

3.      Diamond Offshore Management Company
        Diamond Offshore Services Company
        15415 Katy Freeway, Suite 300
        Houston, Texas 77094
        Defendants/Appellants/Petitioners

4.     Jeffrey R. Bale
       Texas State Bar No. 01629800
       Lewis E. Henderson
       Texas State Bar No. 09424750
       Kensington I, Suite 200
       1600 Highway 6 South
       Sugar Land, Texas 77478
       Telephone: (281) 295-6000
       Facsimile: (281) 295-6010
       Trial and Appellate Counsel for Defendants/Appellants/Petitioners




PETITION FOR REVIEW                                                        Page ii
                                 TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL..                                                           i

TABLE OF CONTENTS                                                                         iii

TABLE OF AUTHORITIES                                                                       V


STATEMENT OF THE CASE                                                                    vii

       Nature of the case                                                                vii

       Course of proceedings                                                             vii

       Trial COUl1 disposition                                                           vii

       Disposition in the Court of Appeals                                              viii

Why this Petition should be granted                                                       ix

Statement of Jurisdiction                                                                  x

ISSUES PRESENTED FOR REVIEW                                                                x

       Issue No. I:    Was the Respondent's right to maintenance (and cure)
       tenninated because he ceased to avail himself of curative treatment?                x

       Issue No.2: Did the appellate court commit error in affirming an artificial
       future date of MMI from surgery that was never performed and that was not
       based on an unequivocal medical detennination?                                      x

       Issue NO.3: Did the appellate court cOlillnit error in affirming a Jump sum
       award for future maintenance rather than require the Respondent to bring a
       serial action for maintenance (and cure) when the surgery for which the
       maintenance payment was awarded was never perfonned?                                x

STATEMENT OF FACTS                                                                         I

SUMMARY OFTHE ARGUMENT                                                                     3

ARGUMENTS AND AUTHORITIES                                                                  3



PETITION FOR REVIEW                                                                  Page iii
                            TABLE OF CONTENTS (cont.)


       Standard of review and applicable law                                          3

       The obligation to pay maintenance (and cure) terminates when the seaman
       ceases to avail himself of curative treatment                                  4

       Respondent's excuse for not having surgery                                     5

       The trial court erred in declaring a future date of MMI..                      7

       There is no obligation to prepay maintenance and cure                         10

       Respondent may bring serial suits for maintenance (and cure)                  13

CONCLUSION AND PRAYER                                                                14


CERTIFICATE OF SERVICE                                                               17


ApPENDIX

       Final Judgment.                                                            Tab I

       Findings of Fact and Conclusions of Law                                    Tab 2

       Amended Final Judgment                                                     Tab 3

       Second Amended Final Judgment...                                           Tab 4

       Notice of Appeal                                                           Tab 5

       Amended Notice of AppeaL                                                   Tab 6

       Appellate COUI1's Memorandum Opinion                                       Tab 7

       Notice OfCOUl1 of Appeals' Order Denying Motion for Rehearing              Tab 8

       Notice OfCOUl1 of Appeals' Order Denying Motion for En Bane Rehearing ..... Tab 9




PETITION FOR REVIEW                                                               Pageiv
                              TABLE OF AUTHORITIES



AndersonI'. City ofSeven Points, 806S.W.2d791 (Tex. 1991)                             3

Bonneau v. Guidannce Fishing Corp., 919 F.Supp. 46 (D. Ma. 1996)                  II, 12

Boudreaux v. US, 280 F.3d 461 (5 th Cir. 2002)                                      7,8

Brown v. Aggie & Miller, Inc., 485 F.2d 1293 (5 th Cir.1973)                         12

Cain v. Bain, 709 S.W.2d 175 (Tex. 1986)                                              3

CalmarSS Corp. v. Taylor, 303 U.S. 525 (1938)                               10, II, 12

Cargo Ships & Tankers, Inc. v. McDonald, 435 S.W.2d 866 (Tex.Civ.App. 1968,
      writ ref'd n.r.e.)                                                              4

Catalina v. Blasdel, 881 S.W.2d 295 (Tex. 1994)                                       3

Coulter v. Ingram Pipeline, Inc., 511 F.2d 735 (5 th Cir. 1975)                     4,5

Diamond Offshore Management Co.. et al v. Cummings, 2010 WL 1611391 (Tex.
     App.-Houston [I st Dist.], pet. filed)                                         viii

Dominguez v. Marine Transport Management Co., 1992 AMC 2863 (E.D. La.
     1992)                                                                           II

Dupre v. Otis Engineering Corp., 641 F.2d 229 (5 th Cir. 1981)                       14

Farrell v. United States, 336 U.S. 51 1 (1949)                                    10, 12

General Chem. Corp. v. De La Lastra, 852 S.W.2d 916 (Tex. 1993)                       3

Haughton v. Blackships, Inc., 462 F.2d 788 (5 th Cir. 1972)                          II

Lejeune v. Transocean OjJ,hore Deepwater Drilling Inc., 247 Fed.Appx. 572 (5 th
      Cir. 2007)                                                                     14

Magnolia Marine Transport Co. v. Eldridge, 2007 WL 2159330 (S.D. Miss. 2007)          4

Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998)                        3,4

Maritime Overseas Corp. 1'. Thomas, 681 S.W.2d 160 (Tex.App.-Houston [14 th
      Dist.] 1984, no writ)                                                          12

PETITION FOR REVIEW                                                               Page v
i.



                               TABLE OF AUTHORITIES (cont.)


     Maritime Overseas Corp. v. Waiters, 917 S.W.2d 17 (Tex. 1996)                           4

     Maritime Overseas Corp. v. Waiters, 923 S.W.2d 36 (Tex.App.-Hollston [I 5t
           Dist.] 1995, writ granted), afJ'd as modified, 917 S.W.2d 17 (Tex. 1996)          6

     Pelotto v. L & N Towing Co., 604 F.2d 396 (5 'h Cir. 1979)                         II, 12

     Prude v. Western Seafood Co., 769 S.W.2d 663 (Tex.App.-Houston [14 'h Dist.]
           1989, no writ)                                                                   13

     Rashidi v. Am. President Lines, 96 F.3d 124 (5 th Cir. 1996)                            7

     Robinson v. Wood Res. Corp, 45 Fed. Appx. 318 (5 th Cir. 2002)                          4

     Ryan v. United States Lines Company, 303 F.2d 430 (2 nd Cir. 1962)                     12

     Texaco Ref & Mkt. [nco    1'.   Estate o[Dau Van Tran, 808 S.W.2d 61 (Tex. 1991)        3

     Tullos v. Resource Drilling, [nc., 750 F.2d 380 (5 'h Cir. 1985)                     7, 8

     Vela v. Ford Motor Co., 421 U.S. I (1975)                                              ix


                                          Statutes, Rules and Codes

     28 U.S.c. § 1333(1)                                                                     3

     Tex R. App. P. 53.2(a)                                                                   i

     Tex. Gov't Code § 22.001(a)(6)                                                          x

     TEX. R. ApP. P. 53.2(f)                                                                 x

     TEX. R. ApP. P 56.1 (a)(5)                                                              x




     PETITION FOR REVIE1\                                                               Page vi
                             STATEMENT OF THE CASE

        Nature of the case. This is a maritime personal injury case in which Respondent
was allegedly injured during a persOimel basket transfer from a work boat to a jack-up
drilling rig. Respondent filed suit against the Petitioners on February 10, 2005 (CR 2-9),
in the 190 th Judicial District Court of Harris County, Texas, the Honorable Patricia J.
Kerrigan presiding, alleging Petitioners' negligence under the Jones Act and the
unseaworthiness of their drilling rig, the OCEAN SPARTAN, under the general maritime
law.    He also sued other Diamond Offshore entities, all of whom were voluntarily
dismissed, as well as the operator of the crew boat, which was dismissed by summary
judgment entered on January 20, 2006. The Petitioners made general appearances in the
case and asserted a general denial and affirmative defenses.
        Course of proceedings.     The Petitioners filed a Motion for Partial Summary
Judgment seeking dismissal of Respondent's causes of action for negligence and
unseaworthiness. After hearing argument, the trial court entered an Order dated May 24,
2006, granting the Motion in pm1 and denying it in pal1 dismissing Respondent's negligence
cause of action. However, the trial court subsequently vacated that Order in a handwritten
Order dated August 30, 2006, which it issued after granting Respondent's Motion for
Reconsideration. The case then proceeded to trial.
        Trial court disposition. This matter was tried to the bench from February 19-21,
2008.    By letter dated March 31, 2008, the trial court notified the parties that it had
concluded that Respondent failed to prove by a preponderance of the evidence that his
alleged injuries were caused by the negligence of the Petitioners or the unseaworthiness of
their drilling rig. CR 91. On May 9, 2008, the trial cOUl1 memorialized its decision in a
Final Judgment (CR 115-116, App. Tab 1) and in its Findings of Fact and Conclusions
of Law (CR 107-114, App. Tab 2). In an Amended Final Judgment, also dated May 9,


PETITION FOR REVIE\\                                                                Page vii
                        STATEMENT OF THE CASE (cont.)


2008 (CR 117-118, App. Tab 3), the trial court detennined that Respondent would reach
maximum medical improvement ("MMI") on August 18, 2008, and as a result, that he
was entitled to future maintenance in the amount of $4,500 (at the rate of $25 per day),
and future cure in the amount of $112,500.00. On Respondent's Motion to Modify the
Judgment (CR 122-124), the trial court entered a Second Amended Final Judgment, dated
July 17, 2008 (filed July 15, 2008, CR 127-128, App. Tab 4), which added post-
judgment interest at the annual rate of five percent (5%). Petitioners timely filed their
Notice of Appeal on June 6, 2008 (CR 138-139, App. Tab 5), and their Amended Notice
of Appeal appealing from the Second Amended Final Judgment on July 23, 2008 (CR
142-146, App. Tab 6).
       Disposition in the Court of Appeals. Petitioners appealed to the First Court of
Appeals in Houston on three issues, assel1ing that the trial court erred in applying the
general maritime law by finding and concluding (i) that Respondent had not waived his
right to maintenance and cure, (ii) that Respondent would reach MMI by a specific future
date that was not based on an unequivocal medical determination and was for an alleged
injury that was never medically treated, and (iii) that Respondent was entitled to an award
of future maintenance and cure for the untreated condition for a period of six months
beginning on the first day of trial. The case was submitted to a panel consisting of Chief
Justice Radack and Justices Alcala and Higley, and in an opinion authored by Chief Justice
Radack, a unanimous panel of the cOUl1 of appeals affinned the judgment of the trial court
except as to the award of future cure, which it reversed. App. Tab7. Petitioners timely
filed a Motion for Rehearing (App. Tab 8) and a Motion for En Banc Rehearing (App.
Tab 9), both of which were denied without opinion. Diamond Offihore Management Co.,
et all'. Cummings, 20 I0 WL 1611391 (Tex. App.-Houston [I 5! Dist.], pet. filed).




PETITION FOR REVI EW                                                                Page-viii
                        WHY THIS PETITION SHOULD BE GRANTED

        Despite its reversal of the award of future cure to Respondent, by otherwise
affirming the trial court's decision the Court of Appeals has condoned declarations of future
maximum medical improvement ("MMl") even when the injury for which MMI is declared
goes untreated.     Worse yet, for the first time in Texas, the First Court of Appeals has
sanctioned lump sum monetary awards - in this case, maintenance - for a completely
unsubstantiated recovery period during which the point of future MMI is declared to have
been reached for medical treatment that was never rendered. In this case, the trial court
relied upon the closing argument of Respondent's lawyer instead of an unequivocal medical
detennination to detemline a precise date of future MMI from a surgery that, though
authorized, was never perfonned.
        Rather than applying familiar and long-standing principles of maritime law,
including the waiver of the right to maintenance and cure by a seaman that refuses to avail
himself of curative treatment as Respondent did in this case and his right to bring serial
actions to recover maintenance and cure if necessary, the First Court of Appeals stands
alone as the only COUit in Texas that has affirmed a trial court decision that so clearly
ignores well established precepts of general maritime law relating to awards of maintenance
and cure. It is extremely important to emphasize that this appeal is not about a $4,500
award of maintenance. It is about the unprecedented basis for the award, which would have
also suppOlted the tlial COUIt· s award of future cure had it been justified.] For that reason,
Petitioners parenthetically include references to cure in its arguments against the award of
future maintenance.




] As noted by the Supreme COUIt in Vela v. Ford Motor Co., 421 U.S. 1,6 n.5 (1975), the
obligation to fumish maintenance is coextensive in time with the duty to furnish cure.


PETITIOJ'\ FOR REVIEW                                                                    Pageix
                          STATEMENT OF JURISDICTION

       The Court has jurisdiction of this appeal under Texas Goverrunent Code
§22.001(a)(6) and Tex. R. App. P. 56.I(a)(5) because the court of appeals committed an
error of law that is of such importance to the jurisprudence of the state that it should be
corrected.

                         ISSUES PRESENTED FOR REVIEW

       Pursuant to TEX. R. ApP. P. 53.2(t), Petitioners present the following issues for
revIew:


Issue No.1:
       Was the Respondent's right to maintenance (and cure) terminated because he
       ceased to avail himself of curative treatment?


Issue No.2:
       Did the appellate court commit error in affirming an artificial future date of MMI
       from surgelY that was never perfonned and that was not based on an unequivocal
       medical detennination?


Issue No.3:
       Did the appellate comi cOlmnit elTor in affirming a lump sum award for future
       maintenance rather than require the Respondent to bring a serial action for
       maintenance (and cure) when the surgery for which the maintenance payment was
       awarded was never perfonned?




PETITION FOR REVIEW                                                                  Page x
                                STATEMENT OF FACTS

       Respondent, Jonathan Cummings, was hired by Diamond Offshore Management
Company as a roustabout in July 2004, and he was assigned to work aboard the OCEAN
SPARTAN, a jack-up drilling rig owned by Diamond Offshore Services Company. RR-4,
10-11, 16. On December 16, 2004, Respondent was allegedly injured as he attempted to
transfer from a crew boat to the rig on a personnel basket when he lost his grip on the net
of the personnel basket and fell to the deck of the crew boat. CR 107-09; RR-4, 16-23.
Following the accident, Respondent remained on the rig for a few days performing "light
duty," but he subsequently left the rig before the end of his hitch to attend to a personal
matter unrelated to the incident. RR-4, 26, 28-29.
       After leaving the rig, Respondent sought treatment at Park Plaza Hospital on
December 23, 2004, complaining of pain to his right shoulder. RR-4, 30; RR-8, P-30 at
10-12. X-rays did not reveal any fractures, but he was provided with an ann sling and
instructed to follow up with Dr. Melanie Mencer in one week for re-evaluation. RR-8, P-
30 at 10-20.    Respondent then hired a lawyer who sent him to see Olihopedist, Dr.
William Donovan, for complaints of back, neck and shoulder pain.             RR-I0, P-63.
Following several visits and less invasive treatment, Dr. Donovan performed shoulder
surgery on August 19,2005 (RR-9, P-38 at 91-93), and recommended neck and low back
surgery. RR-3, 209-211, 214-215, 219-220; RR-4, 91-92. Respondent saw no physicians
during most of2006 until he returned to Dr. Donovan in November 2006. RR-4,82-85.
       Dr. Donovan ultimately refened Respondent to Dr. David Tomaszek for
complaints of neck pain, and on September 20, 2007, Dr. Tomaszek performed cervical
surgery to alleviate the symptoms in Respondent's neck. RR-I0, P-75. Dr. Tomaszek
testified that, based upon the hundreds of similar surgeries he has perfoll11ed in the past,
he expected Respondent to make a full recovery and to return to work, without



PETITION FOR REVIEW                                                                   Page 1
restrictions, approximately ninety days following surgery.       RR-16, Court Exhibit 3
(deposition pp. 14, 16-17). There is no indication from Dr. Tomaszek that there were
any complications from the surgery or that Respondent was unable to return to work.
Indeed, as of the time of trial, Respondent was reportedly recovering well from this
surgery. RR-5, 18.
       Despite Dr. Donovan's reconunendations for low back surgery and the fact that
Dr. Donovan was issued a letter of protection from Respondent's counsel in the event
Respondent desired to have the surgery perfonned (RR-B, D-19 at 2),2 Respondent
never scheduled this surgery. As Dr. Donovan testified during his deposition, he could
not communicate with Petitioners or send records or copies of his bills to them because
Respondent had not approved the release of his records to them.             RR-3, 215-218.
Petitioners requested detailed medical reports (RR-7, P-28 at 22) but were denied that
information because of Respondent's refusal to authorize their release. RR-3, 215-218.
It was not until after Respondent filed this lawsuit that the Petitioners were able to obtain

his medical records by subpoena. RR-3, 11-12, 16-17,37,78-82,88-89.
       As of the time of trial, all of Respondent's maintenance and cure had been paid by
Petitioners (RR-3, 16-17, 83-84; RR-15, D-46), and no treatment requested by
Respondent or any of his treating physicians had been refused or delayed by Petitioners.
Petitioners are not aware of any additional surgery that has been scheduled,] although low
back surgery at the L4-5 level has been recommended at least six times (see note 12), and
at trial Petitioners' corporate representative guaranteed payment of this surgery should
Respondent decide to have it perfonned. RR-3, 38,110.

2 Respondent's lawyer also issued letters of protection in order to guarantee payments to the
other health care providers. E.g., see RR-6, P-25 at 11 and RR-13, D-17 at 18.

] Respondent's lawyer recently requested that Petitioners schedule Respondent's back surgery
but undersigned counsel responded that Respondent and his physician must undertake that
responsibility.


PETITIO~   FOR REVIEW                                                                  Page 2
                          SUMMARY OF THE ARGUMENT

       When a seaman, such as Respondent, reaches MMI or ceases to avail himself of

curative treatment for a condition incurred while on the job, payment of maintenance (and

cure) is no longer required. Moreover, there is no obligation to prepay maintenance (or
cure) for a period following medical treatment until MMI is reached if the medical

treatment is never perfonned and the period detennined for MMI is, in essence, fictitious
and not based on an unequivocal medical detennination.

                          ARGUMENT AND AUTHORITIES

       Standard of review and applicable law. Findings of fact in a bench trial have the
same force and dignity as a jury verdict, Anderson v. City of Seven Points, 806 S. W.2d

791, 794 (Tex. 1991), and the same standards of review regarding legal and factual
sufficiency of the evidence apply in bench trials and jury trials. Catalina v. Blasdel, 881
S. W.2d 295, 297 (Tex. 1994).      Ordinarily, after considering and weighing all of the
evidence, the verdict will be set aside only if the evidence is so against the great weight

and preponderance of the evidence that it must be clearly wrong and unjust. Cain v. Bain,
709 S.W.2d 175, 176 (Tex 1986)

       However, Respondent was a Jones Act seaman and this appeal involves issues
arising under the general maritime law. In Maritime Overseas Corp. v. Ellis, 971 S.W.2d

402, 405-406 (Tex. 1998), this Court noted that "[fJederal law provides that a party

assel1ing an admiralty action may bring the action in state cOUJ1," [citing 28 U.S.c. §

1333(1)], and that ""[w]hen a state court hears an admiralty case, that cOUl1 occupies

essentially the same position occupied by a federal cOUl1 sitting in diversity: the state

court must apply substantive federal maritime law but follow state procedure," citing

Texaco Ref & Mkt. inc. v. Estate o/Dau Van Tran, 808 S.W.2d 61, 64 (Tex. 1991) and
General Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993). Thus, a Texas



PETITION FOR REVIEW                                                                   Page 3
appellate court may not conduct a traditional factual sufficiency review of a jury's
liability finding under the Texas "weight and preponderance" standard. Instead, it must
apply the less stringent federal standard of review and once it determines that some
evidence about which reasonable minds could differ suppOlis the verdict, the appellate
court's review is complete. Maritime Overseas Corp. v. Ellis, supra at 406.

       Issue No.1: Was the Respondent's right to maintenance (and cure) terminated
                   because he ceased to avail himselfofcurative treatment?

       The obligation to pay maintenance (and cure) terminates when the seaman
ceases to avail himself of curative treatment. 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, and the shipowner is liable to the seaman for maintenance
and cure regardless of whether the shipowner was at fault or the ship unseaworthy.
Maritime Overseas Corp. v. Waiters, 917 S.W.2d 17, 18 (Tex. 1996).                A seaman is
entitled to maintenance and cure during that period of time in which he is suffering from
a curable disability and obtaining curative treatment therefore, and this is a right in
addition to and apaIi from his right to recover damages for negligence. Cargo Ships &
Tankers, Inc. v. McDonald, 435 S.W.2d 866, 872 (Tex.Civ.App. 1968, writ refd n.r.e.).
That right ceases, however, when the seaman has reached his maximum recovery or
ceases to avail himself of curative treatment. Id.; accord Magnolia Marine Transport Co.
v. Eldridge, 2007 WL 2159330, *1 (S.D. Miss. 2007) ("A seaman's right to maintenance
and cure is ... 'forfeited by a will ful rejection of the recOiTUnended medical aid. "'), citing
COli Iter v. Ingram Pipeline, Inc., 5!! F.2d 735, 737 (5 th Cir. ! 975), quoted in Robinson v.
Wood Res. Corp, 45 Fed. Appx. 318, *3 (5 th Cir. 2002).
       Respondent was injured in December 2004 and was last examined by his treating
physician, Dr. William Donovan, the week before trial, when low back surgery was last
recOlTUuended but never scheduled. RR-4, 91-92. As noted in the above Statement of


PETITION FOR REVIEW                                                                       Page 4
Facts, Respondent repeatedly ignored the recommendations of Dr. Donovan to have lower
back surgery - a fact that he did not deny at trial, id., despite the fact that payment for this
surgery had been guaranteed, also as noted in the Statement of Facts. As such, by the
time of trial he had ceased to avail himself of curative treatment and because he had
rejected recommended medical treatment, Petitioners' obligation to provide additional
maintenance (and cure) had tenninated.
        Not only had Respondent waived his right to a lump sum payment for future
maintenance (and cure) at the time oftrial, but he most certainly had waived it by the time
this matter was considered by the First Court of Appeals. By that time, Respondent not
only had a written guarantee from his attorney for payment of this surgery, but as already
noted Petitioners' claims representative, Jimmy Robichaux, guaranteed payment of this
                                                                                     4
surgery at trial should Respondent decide to have it perfonned. RR-3, 38, 110            Despite
these guarantees and Respondent's testimony at trial that he would have the surgery that
day if approved (RR-4, 35-36, 92), Respondent has never had the recommended back
surgery5

        Respondent's excuse for not having surgery.               A forfeiture or waiver of
maintenance and cure can be avoided by a showing of "extenuating circumstances" that
make the "failure to follow the prescribed regimen either reasonable or something less



4 Indeed, Mr. Robichaux testified that he expected the back surgery would be paid as part of
Petitioners' cure obligation. RR-3, 110. It is noteworthy that in its Finding of Fact No. 29 (CR
111), the trial cOUJi found that Respondent was not entitled to recover past cure (and by
extension, no past 111aintenance) because Petitioners had guaranteed payment for such expenses
at trial. As noted, Petitioners also guaranteed payment for the back surgery (and by extension,
maintenance for that surgery) but they were nonetheless cast in judgment for these costs and
expenses.

5 Respondent never scheduled surgery or submitted medical bills in line with Petitioners'
guarantee of payment. A request for the back surgery came for the first time by letter dated May
18,2010, without any accompanying medical records or statement of medical necessity.



PETITION FOR REV I EW                                                                      Page 5
than a willful rejection." Coulter v. Ingram Pipeline, Inc., supra at 737. Respondent

appears to claim that he never had the recOlmnended back surgery because Petitioners
refused to authorize it.     CR 103-104.       Respondent neither testified nor offered any
evidence of the reasons why Petitioners refused the alleged request for this surgery, and
the trial court did not render any Findings or Conclusions in that regard and its Second
Amended Final Judgment does not address these contentions. Moreover, the appellate
court noted that Respondent had the neck surgery perfonned two months after it was
approved by Petitioners (App. Tab 7 at p. 9), that the back surgery was approved during
trial (id.), and that Respondent testified that he would have the surgery if authorized (Id.
at pp. 8, 16 and 17 n.6). Yet the appellate court ignored the fact that, although the back
surgery was approved, it had not been performed some twenty-seven months later without
an explanation ever being offered for the delay.
        It is clear from the record that Petitioners were surprised to learn for the first time
about a year after the incident of the possible need for back surgery so they naturally
wanted to investigate whether it was causally related to the incident. RR-3, 37-40, 101-
102, 108-109, 114-115, 210-211.           This Court specifically recognized in Maritime
Overseas Corp. v. Waiters, 923 S.W.2d 36, 40 (Tex.App.-Houston [1 st Dist.] 1995, writ
granted), aiI'd as modified, 917 S.W.2d 17 (Tex. 1996), that Respondents had the
absolute right to investigate Respondent's claim for maintenance and cure and to obtain
the seaman's medical records from the treating physicians that he selected. In this case,
Petitioners wrote to Respondent's treating physician, Dr. William Donovan, at least twice
to obtain detailed repolis regarding Respondent's inedical condition (RR-3, 11-12, 78-80,
176; RR-12, 278 6), but those records were never provided because Respondent refused to


6This request indicates at the top of the page that it was the "Second Request - Previously Sent
On 1-13-05." The first request could not be located in the record, but that it was sent in January
2005 is consistent with the testimony of Mr. Robichaux that he started investigating
Respondent's claim for cure thai month. RR-3, 10. It is noteworthy that Dr. Donovan's office


PETITION FOR REI'I EW                                                                       Page 6
authorize their release (RR-3, 80-82, 215-218, 224-225)7 It was not until Respondent
filed this lawsuit that Petitioners were finally able to obtain these medical records. RR-3,
16-17, 36-37, 81-82.       Under these circumstances, Petitioners' good faith attempts to
investigate Respondent's claims for maintenance and cure in a timely fashion cannot be
seriously disputed, 8 and Respondent's implausible excuse for not having back surgery
should not mitigate his failure to avail himself of cure.

         Issue No.2: Did the appellate court commit error in affirming an artificial
                     future date of MMI from surgery that was never performed and
                     that was not based on an unequivocal medical determination?

         The trial court erred in declaring a future date of MMI. The obligation to
provide maintenance and cure tenninates when maximum cure (or MMl) has been
reached, i.e., "where it is probable that further treatment will result in no betterment in the
claimant's condition."     Boudreaux v. Us., 280 F.3d 461, 468 (5 th Cir. 2002), citing
Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5 th Cir. 1996). Determination of MMI
is a factual issue that is reviewed for clear error, Boudreaux v. Us., 280 F.3d 461, 468
    th
(5 Cir. 2002), and its detennination must be based on an unequivocal medical, and not
judicial, detennination.    Tullos v. Resource Drilling, Inc., 750 F.2d 380, 388 (5 th Cir.
1985). Although Petitioners do not dispute Respondent's entitlement to maintenance and
cure until MMI is reached (RR-2, 10), they dispute the unsupported and unprecedented


personnel made the February 10, 2005 handwritten notation on this letter confinning that they
were "unable to release info [because of] non-[authorization] in [patient's] chart." Dr. Donovan
testified that this notation meant that "the patient never approved any information be sent to
DimTIond Offshore." RR-3,216.

7  Indeed, only two people were authorized to receive these medical records: Regina Patrick
(listed as Respondent's "emergency contact" on the Town & Country Open MRI form dated
December 27,2004, in RR-6, P-25) and Jeffrey Stem (Respondent's lawyer, RR-3, 220).

8 Jt is noted that Respondent's counsel admitted at trial that he was not urging a claim that
maintenance and cure was arbitrarily and capriciously withheld. RR-3,91-92.



PETITION FOR REVIEW                                                                       Page 7
manner in which the trial court detennined - and the appellate court affinned - the date of
MMI as August 18,2008 (CR 111, App. Tab 2 at p. 5, Finding No. 27).
       Although disputed,9 the conclusion of Dr. Donovan of when Respondent would

reach MMI was both equivocal and based on a sequence of events that not only never
occurred, but was ignored by both the trial court and the court of appeals. [t was Dr.
Donovan's opinion that in a best case scenario he expected Respondent to reach MMI
within six months after surgery was completed (RR-3, 225, 231-232, 237-238), but in a
worst case scenario, he would never reach MMI. RR-3, 237-38. Given the controversy
over Respondent's medical condition, the medical determination of when and if he would
reach MMI was far from unequivocal.
       Moreover, as in Boudreaux, supra at 469, the trial court's determination that
Respondent required additional medical treatment necessarily means that he had not
reached MMI.      However, Dr. Donovan· s estimate of a six-month recuperation period
before Respondent might be expected to reach MMI (RR-3, 225, 237-238) specifically
assumed that he would first undergo the less invasive back surgery (RR-3, 211) and then,
three weeks later, undergo the more invasive neck surgery (RR-3, 225, 230) with MMI to
be reached six months following the neck surgery (RR-3, 225, 237-238). The sequence
of surgeries assumed by Dr. Donovan did not occur. The neck surgery was perfonned on
September 20, 200io (see the First Surgical Woodlands Operative Report at RR-8, P-34



9 As in Tullos, there was extensive controversy in the medical opinions regarding the nature and
extent of Respondent's condition and proposed treatment. See the report of Dr. Jeffrey B. Wood
 (RR-6, Ex. 23) prepared following his examination of Respondent on behalf of Petitioners, and
the letter wlitten by Dr. Donovan (RR-6, Ex. 23), in which he disagreed with the opinions
expressed by Dr. Wood.

10 Respondent testified at trial that Dr. David Tomaszek perfonned the neck surgery (RR-4, 34-
35), and his lawyer infon11ed the trial court during closing arguments that Respondent is
"recovering well from that [cervical] fusion surgery." RR-5, 18. As noted, Dr. Tomaszek
testified that he had perfonned hundreds of similar surgeries and expected Respondent to make a


PETITION FOR REVIEW                                                                       Page 8
at 000008-000009), but the back surgery has never been performed.                         Clearly, Dr.
Donovan assumed that MMI would be reached six months following the second of two
surgeries, with the more invasive surgery being the last one to be perfooned, and there is
no evidence of Dr. Donovan's perceived recuperation period before reaching MMI for
only the back surgery. As such, not only did the trial court declare MMI for a surgery that
was never perfooned, II but it declared that Respondent would reach MMI based on a
medical opinion that was both equivocal and premised on assumptions that were no
longer valid at the time of trial.
          Finally, it is obvious that the trial court arrived at the precise date of August 18,
2008, for MMI by adopting the logic of Respondent's attorney during closing argument:
          ... what date will this man reach maximum medical improvement? We
          know this from the testimony of Dr. Donovan. What I did is I selected the
          first day of trial, Dr. Donovan said this man would reach MMI six months
          following his surgery. This Court will recall Mr. Cummings said, r II have
          the surgery right now. So I marked that time 180 days from the first day of
          trial, that's August 18th, 2008. That's a conservative evaluation because he
          obviously hasn't had the surgery. But six months from the first day of trial
          is August 18th, 2008. [RR-S, 26-27]



full recovery and to return to work, without restrictions, approximately ninety days following
surgery. RR-16, Court Exhibit 3 at 5 (deposition pp. 14, 16-17).

II   It is only logical that a seaman must first be medically treated for an illness or injury before he
or she can reach MMI for the condition that was treated. There is no dispute that Respondent
never had back surgery so to declare that he reached MMI on August 18, 2008, following that
surgery is both illogical and clearly elToneous. The appellate court seemed to acknowledge the
need for surgery before MMI could be reached when it noted at p. 15 of its opinion that "the trial
court could reasonably have credited Dr. Donovan's testimony that he believed Cummings would
reach MMI six months after his last surgery." App. Tab 7 at p. 15 (emphasis added). It is
assumed that the appellate court's reference to "the last surgery" was a reference to the back
surgery that never occuo·ed. The appellate court affinned a decision that ostensibly telminated
Respondent's light to maintenance and cure on August 18, 2008, despite the fact that he has
never been treated. If he decides to have surgery, does he get to reach MMI a second time for the
same injury and surgical procedure?



PETITION FOR REVIEW                                                                               Page 9
       In view of Petitioners' agreement made under oath in front of the trial judge that it
would pay for the back surgery, rather than fashion an award of maintenance and cure
based on a deadline that Respondent have the surgery by a certain date, instead the trial
court took Respondent at his word that "if it was authorized today, I would have it" (RR-
4, 35-36, 92), and without questioning the validity of the six month convalescent period
proposed by Dr. Donovan, it accepted the August 18, 2008 date conjured up by
Respondent's lawyer. This manner of determining a date for MMI alone is clear error
that cries out for review and correction. But when coupled with the fact that the award
for future maintenance was based on an equivocal medical opinion that itself was based
on erroneous assumptions, it is incumbent upon this Court to correct the errors that the
First Court of Appeals failed to address, especially when the appellate panel and then the
en bane court refused to consider the clear elTor in awarding maintenance to a seaman for
medical treatment that he never received.

       Issue No.3: Did the appellate court commit error in affirming a lump sum
                   award for future maintenance rather than require the Respondent
                   to bring a serial action for maintenance (and cure) when the
                   surgery for which the maintenance payment was awarded was
                   never performed?

       There is no obligation to prepay maintenance and cure. The obligation to pay
maintenance does not require that it be prepaid. In Farrell v. United States, 336 U.S. 511,
519 (1949), the Supreme Court held that the obligation "does not hold a ship to
pennanent liability for a pension, neither does it give a lump-sum payment to offset
disability based on some conception of expectancy of life." In Calmar         s.s.   Corp. v.
Taylor, 303 U.S. 525, 530 (1938), the Court further recognized that:
       Awards of small amounts to cover future maintenance and cure of a kind
       and for a period definitely asceJiained or ascertainable have occasionally
       been made. *** The seaman's recovery must therefore 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


PETITION FOR REVIEW                                                                     Page 10
       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; accord Pelotto v. L & N Towing Co., 604 F.2d 396, 40 I (5 th Cir. 1979) and
Haughton v. Blackships, Inc., 462 F.2d 788, 789 (5 th Cir. 1972).
       In Calmar SS. Corp., the Supreme Court reversed an award of a lump sum
payment for maintenance and cure in an amount that would have treated an ill seaman for
the remainder of his life because "[t]he courts below have made no findings sufficient to
enable us to fix the amount which respondent is entitled to recover." Calmar SS Corp.,
supra at 532. Similarly, the trial court in this case made no findings that justify its award
of future maintenance other than to merely conclude that "Plaintiff will require necessary
medical care in the future" (CR 111, Finding of Fact No. 25) and that he "will in
reasonable probability incur medical expenses in the future." CR 111, Finding of Fact
No. 26. Based on these conclusory findings and the further conclusion that Respondent
would reach MMI on August 18, 2008, the trial court awarded Respondent $4,500 in
future maintenance. As explained above, the detennination of MMI on August 18, 2008,
was error, so the award of maintenance (and cure) based on that determination of MMI is
likewise en·or.
       Despite the flaws in the trial court's methodology in arriving at its award of future
maintenance, the cases that hold that there is no obligation to pre-pay maintenance (and
cure) are consistent in their analysis. For example, in Dominguez v. Marine Transport
Management Co., 1992 AMC 2863 (E.D. La. 1992), the court held that a shipowner has
no obligation to pay for a medical test or treatment before it is perfonned, and in Bonneau
v. Guidannce Fishing CO/p., 919 F.Supp. 46, 48 (D. Ma. 1996), where the court dealt
with a claim that future surgeries might be necessary to treat an ankle injury, the court
held that maintenance and cure cannot be awarded for a future surgery that is only a
possibility: "... where a future operation is presently only a possibility, maintenance and



PETITION FOR REVIEW                                                                   Page I]
cure cannot be 'definitely ascertained' and thus, cannot be awarded." Indeed, the court in
Bonneau recognized that if there is future additional treatment, a seaman may bring a
serial action to recover additional maintenance and cure on the ground of changes in the
seaman's condition or advances in medicine. Id.; accord Pelotto v. L & N Towing Co.,
supra at 401, citing Farrell, supra at 519, and Calmar s.s. Corp., supra at 530-31.

          In Maritime Overseas Corp. v. Thomas, 68 I S. W.2d 160 (Tex.App.-Houston
     th
[14 Dist.] 1984, no writ), the court explained that maintenance and cure "is intended to
compensate the injured seaman for monies necessarily spent for ordinary support and
medical expenses during the course of treatment," and for that reason "it is essential for
such recovery that the seaman actually incur these expenses." Id. at 163 (emphasis
original), citing Brown v. Aggie & Miller, Inc., 485 F.2d 1293, 1296 (5 th Cir. I973), where
the Fifth Circuit held that no maintenance and cure be given for the days voluntarily spent
without care or under public or private charity. Noting this holding by the Fifth Circuit in
the Brown decision, the cOUl1 in Thomas concluded that:

          If this is true, then it logically follows that the seaman may not receive
          maintenance if he is not receiving some type of medical care. Payments for
          maintenance and cure are to be limited to the period the seaman was
          actually undergoing "cure" - that is while he is undergoing medical
          treatment tending to improve his physical condition.

Thomas, supra at 163, citing Ryan v. United States Lines Company, 303 F.2d 430, 432
(2 nd Cir. 1962).
          In this case, Dr. Donovan, recommended back surgery at least six times since
October 2005,12 but R.espondent never had that surgery despite the fact that his attorney


12 See the following medical reports located within RR-7, P-28: Orthopedic Report of Dr.
Donovan dated October 21, 2005; Orthopedic Report ofDr. Donovan dated December 20, 2005,
and Letter of Medical Necessity for P311ial Disectomy L4-5 from Dr. Donovan dated December
20, 2005; Office Progress Notes of Dr. Donovan dated November 28, 2006; Office Progress
Notes of Dr. Donovan dated FeblUary 13,2007. See also RR-3, 211.



PETITION FOR REVIE\\                                                                   Page 12
had guaranteed payment for it. Indeed, at trial Respondent acknowledged that his doctors
have recommended low back surgery for years (RR-4, 35, 91-92), and despite his self-
serving testimony that "if [the surgery] was authorized today, I would take it," (RR-4, 35-
36, 92) he has never taken it upon himself to have it scheduled despite the fact that
Petitioners guaranteed payment for it at trial. Of course, this should come as no surprise
given the fact that the Respondent himself admitted that he did not see a doctor for
treatment related to the accident for almost a year during 2006. RR-4, 82-85. Given this
history, the impropriety of the decision to award future maintenance is umnistakable
because the fact that this treatment would not be incurred in a period definitely
ascertained or ascertainable has been borne out, even if the Court were to consider the
August 18, 2008 date as a deadline for Respondent to undergo the surgery. These facts
also support the logic of the many decisions ignored by the appellate court that discourage
award for future maintenance and cure, except under the limited circumstances noted
above, because a seaman retains the right to bring a serial action to recover additional
maintenance and cure.
       Respondent may bring serial suits for maintenance (and cure). As already
noted, the continuing nature of the shipowner's obligation to pay maintenance and cure
pennits seamen to bring serial suits to collect maintenance and cure as they come due.
Prude v. Western Seafood Co., 769 S.W.2d 663, 665 (Tex.App.-Houston [14 th Dist.]
]989, no writ) (citations omitted). Should the COUJ1 conclude that Respondent has not
waived his right to seek additional maintenance (and cure), he is entitled to seek
additional Inaintenance (and cure) if and when he has the recOlnnlended back surgery.

But Petitioners should not be required to pre-pay maintenance (or cure) for a surgery that
may never occur, especially in view of their agreement at trial to pay for this surgery.
Otherwise, failure to reverse the appellate cOUJ1's opinion that affinns the trial cOUJ1"s
award would result in a windfall damage award based on an uncel1ain entitlement.


PETITION FOR REVIEW                                                                 Page 13
       Indeed, the unique circumstances of this case make it proper and logical to require
Respondent to simply submit bills for the back surgery since payment has been
guaranteed. Doing this would render the need for Respondent to bring a serial lawsuit
unnecessary and would not be unfair "[s]ince the amount and extent of maintenance and
cure depends upon future developments, maintenance and cure for the future are
ordinarily not awarded in a lump sum." Lejeune           t'.   Transocean Offshore Deepwater
Drilling Inc., 247 Fed.Appx. 572, 578 (5 th Cir. 2007), citing Dupre v. Otis Engineering
Corp., 641 F.2d 229, 234 n. 6 (5 th Cir. 1981). In Lejeune, the Fifth Circuit concluded that
because the injured seaman's incapacity had not been determined to be permanent at the
time of trial the district court properly awarded continued cure until MMI was reached, a
point that it stated "can be definitely ascertained." Id. at 579. The Fifth Circuit further
concluded that, because maintenance and cure amounts may vary because they depend
upon future developments, ". . . it is not en-or for the district court to obligate [the
seaman' s employer] to pay an uncertain amount. Nor is it en'or for the district court to
obligate [the seaman's employer] for an uncertain period of time, so long as the end point
is ascertainable."    Id. at 578.   Requiring Respondent to undergo surgery before he
becomes entitled to additional maintenance (and cure) certainly adds a dimension of
ascertainability, which is clearly lacking.

                              CONCLUSION AND PRAYER
       This case presents the Court with a maritime issue that is extremely imp0l1ant to the
jurisprudence of this State given its ties to the offshore drilling industry and other maritime-
related industries that utilize workers who qualify as Jones Act seamen. The First Court
of Appeals affinned an award of a lump sum payment for future maintenance in
anticipation of surgery that was never perfol111ed but from which the Respondent was
declared in advance to have reached MMI on a specious specific future date. Unless this
Court reverses the appellate cOUl1's decision it will stand as the first rep0l1ed decision in


PETITION FOR REVIEW                                                                      Page 14
Texas that allowed a seaman to be awarded maintenance for medical treatment that was
never performed. Moreover, that decision will also be used to support awards of future
cure, which would have been affirmed in this case but for the trial court's failure to explain
how it calculated the costs for the anticipated back surgery.
       An error that could have been corrected by the trial court was perpetuated by the
court of appeals in an opinion that is flawed based on the law and the record. However,
by failing to address the absurdity of the situation presented in this case, the appellate court
has condoned a bizarre legal outcome never contemplated under the general maritime law.
Petitioners have demonstrated that Respondent has waived his right to future maintenance
and cure or, alternatively, that it was error to declare a future date of MMI based on an
equivocal and disputed medical opinion and the argument of a lawyer, and then to award a
lump sum payment of maintenance based on that date. These eITors could have been easily
avoided had the trial or appellate court merely required Respondent to utilize the
mechanism long recognized in maritime law that permits seamen to bring serial lawsuits to
collect additional maintenance and cure if needed. In this case, Petitioners' agreement to
pay for the back surgery would have rendered the need for a serial lawsuit moot.




PETITION fOR REVI EW                                                                     Page IS
       WHEREFORE, PREMISES CONSIDERED, for the reasons set forth above,
Petitioners, Diamond Offshore Management Company and Diamond Offshore Services
Company, pray that the Court accept this case for review and thereafter reverse the decision
of the First Court of Appeals and render judgment for the Petitioners, and that Petitioners
have such other and further relief to which they may be justly entitled.




                                             e   '~~1J:5 ~t>{'I
                                           Stat       o. 0
                                           Lewis E. Hen      on
                                           State Bar No.09424750
                                           Kensington I, Suite 200
                                           1600 Highway 6 South
                                           Sugar Land, Texas 77478
                                           Telephone: (281) 295-6000
                                           Facsimile:    (281) 295-6010
                                           Counsel jor Defendants/Appellants,
                                           Diamond Offshore Management Company and
                                           Diamond Offshore Services Company




PETITION FOR REVIEW                                                                  Page 16
                               CERTIFICATE OF SERVICE

              The undersigned hereby certifies that I am associated with the law firm of
The Bale Law Finn, PLLC, attorneys for Diamond Offshore Management Company and
Diamond Offshore Services Company, the Petitioners herein, and that a copy of the
foregoing Petitioner for Review was served on the Respondent, Jonathan Cummings, by
delivering a copy to his attorneys of record, John C. Schwambach, Jr., Mark Mun-ay and
John Stevenson of John Stevenson & Associates, P..,         certifie   ail, retu receipt
requested at 24 Greenway Plaza, Suite 750, Ho on, T xas 77 46, and via f: csimile
transmission on this 20 th day of August, 20 I0




PETITION fOR REVIEW                                                              Page 17
·I
 I.



      1
                                               NO. 2005-09209

 JOHNATHAN CUMMINGS       §                                     IN THE DISTRICT COURT OF
                          §
 "S,                      §                                     HARRIS COUNTY,                 T EXAS
                          §
 DIAMOND OFFSHORE COMPANY,§
 ET AL.                   §                                     190TH JUDICIAL DISTRICT


                                             FINAL JUDGMENT


        BE IT REMEMBERED that this matter was called in its order on the docket for trial On

 February 18, 2008.       In this cause, Johnathan Cummings is Plaintiff, and Diamond Offshore

 Services Company and Diamond Offshore Management Company are Defendants.

        The Plaintiff appeared in person and by attorney of record. The Defendants appeared by

 representative and through their attorneys of record.      All parties announced ready for trial.

Although a jury was previously demanded, the jury was waived and all matters of fact and things

in controversy were submitted to the Court for determination.

        After considering the pleadings, evidence and arguments of counsel, the Court finds that

Johnathan Cummings failed to prove by a preponderance of credible evidence that the injuries he

sustained on December 16, 2004 while employed as a seaman by Defendant Diamond were

caused by negligent acts or omissions of Defendant Diamond or its employees, including Randall

A. Watson, Jr. Further, the Court finds that the vessel was not unseaworthy.

        It is further ORDERED, ADJUDGED AND DECREED, that the claims of Plaintiff,

Johnathan Cummings are dismissed as against Defendant Diamond Offshore Services Company

and Diamond Offshore Management Company with prejudice to his right to refile herein.



                                                                        F              L              E
      RECORDER'S MEMORANDUM:                                                   Dislricf (...:fer!.:       D
      This instrument is of poor quality
      and root satislactory lor photographic
      recordation and/-or alterations were
                                                                            MAY 092008
                at the time of filming
      present
                                                                      ayHanisq;:Q2Z
                                                                             4                   OC"'~'


0001 I~
        Although previously sued herein, Diamond Offshore Company, Diamond Offshore

 Drilling, Diamond Offshore Drilling Services, inc., Diamond Offshore Management Company,

 Diamond Offshore, Inc. and Diamond Offshore (USA), Inc. were previously voluntarily

 dismissed by Plaintiff in this cause. Moreover, Defendant Hornbeck Offshore Operators, LLC

 was dismissed from this cause by summary judgment entered on January 20, 2006. Inasmuch as

 this judgment disposes of all remaining parties and aT! issues, this is a Final Judgment and is

 appealable.

        All costs of court shall be taxes against Plaintiff, for which let execution issue.



 SIGNED this     q     day   of_'--~
                                __        -L             '   2008.




                                                  2




0001 16
2
                                                                                                                   -128
                                              NO. 2005-09209                                           L~~\O
   JOHNATHAN CUMMINGS       §                                    IN THE DISTRICT COURT OF
                            §
   VS.                      §                                    HARRIS COUNTY,                T E X AS
                            §
   DIAMOND OFFSHORE COMPANY,§
   ET AL.                   §                                    190TH JUDICIAL DISTRICT


                                             FINDINGS OF FACT
                                         AND CONCLUSIONS OF LA W


            The above captioned cause came on for trial before the Court without a jury on February

   18,2008. After considering the pleadings, the evidence, the arguments and briefs, the Court, in

   response to a request from plaintiff, makes its findings of fact and conclusions of law as follows:

                                                     I.
                                              Findings of Fact

   L       Johnathan Cummings, Plaintiff, was an employee of Diamond Offshore Management

           Company ("Diamond Offshore Management") on December 16, 2004.

   2.       Diamond Offshore Services Company, Inc. ("Diamond Offshore Services") owned the

           OCEAN SPARTAN on or ahout December 16,2004.

   3.      Diamond Offshore Management employed the crew aboard a rig, the OCEAN

           SPARTAN, on December 16, 2004, including Plaintiff, Joe A. Tynes, Tommy Chandler,

           arid Randall A. Watson, Jr.

   .,.
   A
           On or about December \6, 2004, a crew change took place on the OCEAN SPARTAN

           which required the transfer of 40-50 people between the OCEAN SPARTAN and a crew

           boat, the MN Hot Shot.


 RECORDER'S MEMORANDUM:
 Th's instrument is of poor quality .
                                                                                  F               L           f!
                                                                                                                    D
 and not satisfactory for photographic               I                                      District Cler":

  recordation and/or alte~at~ons were                                                 MAya 92008
  present at the time of filming
                                                                                              Cou;ay. Toxas
                                                                                    ~'Mev
                                                                                        .

                                                                                By --=u..J_("Ql~~-=-
                                                                                            ~             DllOuty


000107
  5.     The crews were transferred between the crew boat and the rig in groups of four on a

         personnel basket, a cone-shaped device with a large ring at the bottom, a smaller ring at

         the top and a Crosby ring that is attached to a stabilizer and cable for attachment to the rig

         Or platfom's crane. The stabilizer is a cord that is designed to keep the basket from

         collapsing and to keep it stretched out as the button basket ring sits on the deck of a boat

         as it rises and falls in the sea.

  6.     Plaintiff was injured when he fell from the personnel basket onto the deck of the

         crewboat, the Hot Shot, during his transfer. The crane operator on the lift for the transfer

         was Randall A. Watson, Jr.

  7.     Plaintiff was trained and experienced in the proper procedure to be followed by personnel

         being transferred between a rig and a vessel on a personnel basket and was familiar with

         hand signals used to communicate with the crane operator during a transfer.

  8.     Each rider is instructed and trained to place one foot on the ring, balancing their weight

         on the deck with the opposite foot and to hold onto the netting. Once a rider grabs onto

         the netting and places his or her other foot onto the ring, that rider is certifying he or she

         is ready to be lifted.

  9.     Four employees were being transferred on the personnel basket at the time Plaintiff fell.

  10.    There is no evidence that any injuries or incidents occurred during the entire crew

         transfer other than the report of Plaintiffs fall.

  i j.   Wind weather and sea conditions were safe for the personnel transfers to take place, even

         though the seas were rough with estimates of 6-8 foot waves. Sea and environmental

         conditions then existing did not contribute to Plaintiffs fall.



                                                    2




000108
   12.   Plaintiff had both feet on the basket and was in a position for the lift, saw the fJagger give

         the ready signal and the basket was fully stretched out. As the basket lifted, Plaintiff fell

         back onto the deck.

   13.   The Court finds that Plaintiffs testimony on how he fell is not credible.

  14.    Plaintiff testified at trial that he fell off the basket because the crane operator Watson

         performed a quick lift and jerked the personnel basket during the lift causing him to lose

         his grip on the basket netting.     This testimony was not credible for several reasons.

         Plaintiff had previously testified in his deposition that his sale criticism of the crane

         operator was that the erane operator did not abort the lift after Plaintiff had fallen to the

         deck. Plaintiff also testified at that time that he lost his grip because the netting was

         jerked out of his hands when Joe Tynes Jr., the passenger across from him on the basket,

         lost his balance and jerked on the netting as he was restabilizing himself.

  15.    The Court finds that both versions require the netting to move in a manner which is

         technically impossible.

  16.    The personnel basket is constructed in a conical shape with a circular bottom ring that is

         approximately six feet across. There are four panels of netting with gaps between them

         in which the riders stand. These panels are gathered at the top where they are fastened to

         another ring, making them separate, independent pieces.

  17.    If Tynes lost his balance, fell back and pulled the netting he was holding, any

         displacement of the net toward him as he restabilized himself would not have a



                                                  3




000109
        commensurate or equal affect on the other side because the panels operate independently

        of one another. The netting would not have been snatched from the Plaintiffs grip as

        Tynes restabilized himself.

  18.   The basket is constructed wilh a stabilizer that allows it to be fully stretched out while

        sitting on the back deck of a boa!. When four men stand on the ring and slow lheir gear

        in the middle, there is generally more than 1,000 pounds of downward force on the

        basket's netting. Once a rider places his or her hands on the nelting of the basket, when it

        is stretched out, their hands remain static in relation to the netting, as the rider's hands,

        body, and the basket will all move at the same speed toward the rig once it is picked up

        off the back deck of the boat. Consequently, the netting could not have been "jerked"

        from Plaintiffs hands by a "quick lift."

 19.    The Court finds that under the prevailing conditions, Randall A. Watson, Jr. conducted a

        proper lift upon receipt of the "ready" signaL

 20.    The Court previously determined as a matter of law that the flagger on the lift, employed

        by Hornbeck Offshore Operators, LLC, who was responsible for giving appropriate and

        timely signals to the crane operator, did nothing wrong.

 21.    The Court finds that the handwritten statement of Walter Drake is neither reliable nor

        credible as its source was in question and it was full of inaccuracies.

 22.    The Court finds that there was no fault or neglect on the part of Diamond Offshore

        Management Company and/or Diamond Offshore Services Company that caused Plaintiff

        to falL

 23.    The Court finds that the Spartan was not unseaworthy.



                                                   4




000110
     24.    Plaintiff sustained an injury in his fall which required medical treatment.

     25.    As a result of the injuries sustained in the fall on December 16, 2004, Plaintiff will

            require necessary medical care in the future.

    26.     As a result of the injuries sustained on December 16, 2004, Plaintiff will            In


            reasonable probabili ty incur medical expenses in the future.

    27.     Plaintiff will reach maximum medical improvement on August, 18,2008.

    28.     The maintenance rate is twenty-five dollars per day.

    29.     No past medical expense or past cure obligation is owed by the Defendants due to

            the stipulation at trial to indemnifY Cummings for these bills.

                                                   II.
                                           Conclusions of Law


    1.      The Court has jurisdiction of this Jones Act case, pursuant to 28 U.S.C. § 1331(1).

    2.      The Court applies the substantive federal maritime law to this case.

    3.      On December 16,2004, Plaintiff was a Jones Act seaman, pursuant to 46 U.S.C. § 30104.

    4.      On or about December 16,2004, Plaintiff was a seaman as that term is defined under the

            Jones Act.    Plaintiffs employer at that time was Diamond Offshore Management

            Company. The OCEAN SPARTAN was owned by Diamond Offshore Services Company.

    5.      At all times relevant, the Diamond Offshore Jack-Up Drilling Rig OCEAN SPARTAN

            was owned by Diamond Offshore Services Company.

    6.      At the time of the accident made the basis of this lawsuit, Plaintiff was an employee of

            Diamond Offshore Management Company and was acting in the course and scope of his

            employment.

                                                     5




000 I I f
 7.     The Jones Act incorporates the standard of care owed by an employer as established

        under the FELA, 45 U.S.C. §§51-60, with permissible recovery on the basis of

        negligence, and, therefore, requires an employer to exercise ordinary care. Port Terminal

        R.R. Ass'n v. Ross, 278 S.W.2d 227,230 (Tex.Civ.App. - Galveston, 1955) affd, 155

        Tex. 447 (1955). Offshore Pipelines, Inc. v. Schooley, 984 S. W.2d 654, 658 (Tex.App. -

        Houston [1st Dist.] 1988, no peL).

 8.     A seaman must demonstrate that his employer breached an ordinary duty of care owed to

        its employees and that the breach caused the seaman harm. Gautreux v. Scurlock Marine,

        Inc., 107 F.3d 331, 335 (5th Cir. 1997).

 9.     The occurrence of an accident, standing alone, does not mean that anyone's negligence

        caused the accident. /d. at 658.

 10.    Under the Jones Act, an employer "must bear the responsibility for his negligence if such

        negligence played any part, even the slightest, in producing the injury." Theriot v. J. Ray
                                                       th
        McDermoff & Co., Inc., 742 F.2d 877, 881 (5 Cir. 1984) (italics original).

 I I.   There are "two separate lines of recovery for an injured seaman: damages, and

        maintenance and cure." Royal Ins. Co. ofAm. v. Sphere Drake Underwriting Mgmt. Co.,

        4 S.W.3d 378, 380 (Tex. App. -        Beaumont 1999, pet. denied) (quoting In re Liberty

        Seafood, Inc., 38 F.3d 755,758 (5 th Cir. 1994».

 12.    A seaman is not required to elect between a claim for maintenance and cure and a claim

        under the Jones Act or under the maritime law for unseaworthiness. Pacific Ss. Co.       v.


        Peterson, 278 U.S. 130, 139 (1928).




                                                   6




000112
  13.   Under the maritime law, "[w]hen a seaman becomes ill or injured while in the service of

        his ship, the shipowner must pay him maintenance and cure regardless of whether the

        shipowner was at fault or whether the ship was unseaworthy." Guevara v. Maritime

        Overseas Corp.. 59 F.3d 1496, 1499 (5 th CiL 1995).

  14.   "The maintenance exacted is comparable to that to which the seaman is entitled while at

        sea (citations omitted), and 'cure' is care, including nursing and medical attention during

        such period as the duty continues."     Calmar SS Corp. v. Taylor. 303 U.S. 525, 528

        (1938).

  15.   A seaman's right to maintenance and cure is "separate from, and independent of, any

        right the seaman may have based on the fact that his injury resulted from negligence

        chargeable to his employer, or from the unseaworthiness of the vessel."         Reardon v.

        California Tanker Co., 260 F.2d 369, 372 (2d CiL 1958).

  16.   To recover for unseaworthiness, a plaintiff must show that an alleged unseaworthy

        condition played a "substantial part" in bringing about, or actually causing, his injury and

        that injury was either a direct result, or a reasonably probable consequence, of the

        vessel's unseaworthiness.    Phillips v. Western Co. of North America, 953 F.2nd 923

        (1992), Johnson v. Ojfthore Express, Inc., 845 F.2nd 1347 (5th Cir. 1988).

  17.   To be considered seaworthy, a vessel, its crew and appurtenances must be reasonably fit

        for the vessel's intended purpose. Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960).

        The standard is not absolute perfection but reasonable fitness for the intended service.

        Mahnich v. Southern SS Co., 321 U.S. 96 (1944). Moreover, perfection is not required.

        Smith v. American Mail Lines, LId., 525 F.2d 1148 (9th Cir. 1975). Finally, the mere fact



                                                 7




000113
           that an injury occurs does not establish that a vessel was unseaworthy. Mosley v. Cia

           Maril. Adra. SA, 314 F.2d 223 (2nd Cir. 1963).

    18.    The plaintiff has failed to establish by a preponderance of the evidence that his injuries

           were proximately caused by any negligent conduct of Diamond Offshore Management

           Company.

    19.    The plaintiff has failed to establish by a preponderance of the evidence that his injuries

           were proximately caused by any negligent conduct of Diamond Offshore Services

           Company.

    20.    The plaintiff has failed to establish by a preponderance of the evidence that Randall A.

           Watson, Jr. was negligent in operating the crane during the lift being conducted at the

           time Plaintiff fell.

    21.    Plaintiff has failed to prove by a preponderance of the evidence his claim of

           unseaworthiness.

    22.    Plaintiff is entitled to future maintenance of $4,500.00.

    23.    Plaintiff is entitled to future cure of$112,500.00.




                                    ~
    SIGNED this _1'---------_day Of ___ _f--                ' 2008.




                                                 The     onorable Patricia 1.   Kel1'tj~,--




                                                     8




000114
3
                                                                          aLp f22-
                                            NO. 2005-09209               ,f' R-fJo
   JOHNATHAN CUMMINGS                          §
                                               §
                                                             IN THE DISTRICT COURT OF            J
   VS.                                         §             HARRIS COUNTY,             TEXAS
                                               §
   DIAMOND OFFSHORE COMPANY,                   §
   ET AL.                                      §             190TH JUDICIAL DISTRICT


                                      AMENDED FINAL JUDGMENT


           BE IT REMEMBERED that this matter was called in its order on the docket for trial on

   February 18, 2008. In this cause, Johnathan Cummings is Plaintiff, and Diamond Offshore

   Services Company and Diamond Offshore Management Company are Defendants.

           The Plaintiff appeared in person and by attorney of record. The Defendants appeared by

   representative and through their attorneys of record.    All parties announced ready for trial.

   Although a jury was previously demanded, the jury was waived and all matters of fact, all

  controversies and all mallers of law were submitted to the Court for determination.

           After considering the pleadings, evidence, briefs and arguments of counsel, the Court

  finds that Johnathan Cummings failed to prove by a preponderance of credible evidence that the

  injuries he sustained on December 16,2004 while employed as a seaman by Defendant Diamond

  Offshore Management Company were caused by negligent acts or omissions of either Defendant

  Diamond Offshore Services Company, Defendant Diamond Offshore Management Company

  Diamond or its employees, including Randall A. Watson, Jr. Further, the Court . finds that the

  vessel was not unseaworthy.

           The Court further finds that on December \6, 2004 Plaintiff sustained iqjuries in the

  course and scope of his employment while employed as a seaman by Defendant Diamond


  RECORDER'S MEMORANDUM:
  This instrument is of poor quality .
  and not satisfactory for photographic
  recordation and/or alterations were
  present at the time of filming




000117
  Offshore Management Company for which he is entitled to future maintenance at the rate of

  $25.00 per day in the total amount of $4,500.00 and future cure in the amount of $112,500.00.

  The Court finds that Plaintiff shall reach maximum medical improvement on August 18, 2008.

               It is therefore ORDERED, ADJUDGED AND DECREED, that the claims of Plaintiff,

  Johnathan Cummings, for negligence and unseaworthiness are dismissed as against Defendant

  Diamond Offshore Services Company and Diamond Offshore Management Company with

  prejudice to his right to refile herein.

               It is further ORDERED, ADJUDGED AND DECREED that Plaintiff Johnathan

  Cummings is entitled to a damage award against the Defendants in the amount of $112,500.00

  for future cure and for future maintenance in the amount of $4,500.00.

               Although previously sued herein, Diamond Offshore Company, Diamond Offshore

  Drilling, Diamond Offshore Drilling Services, Inc., Diamond Offshore Management Company,

  Diamond Offshore, Inc. and Diamond Offshore (USA), Inc. were previously voluntarily

  dismissed by Plaintiff in this cause.              Defendant Hornbeck Offshore Operators, LLC was

  dismissed from this cause by summary judgment entered on January 20, 2006. Inasmuch as this

 judgment disposes of all remaining parties and all issues, this is a Final Judgment and is

  appealable.

               All costs of court shall be taxes against the party incurring the same.


  SIGNED this           £           day   Of_---'-~---t'I--_, 2008.

        "VIT n J.I
        ..1.
         1   .I.J
                  L' n
         Theresa Chang
          District Clerk

         ~IAY 09 2008
  Time:         ,,5;<20%7                                2
             Harris County, Texas

  By:                .(;1fff
                   '"
000118
4
                                                                                                      ~Rtl.

JOHNATHAN CUMMINGS
                                         NO. 2005-09209

                                                 §           IN THE DISTRICT COURT OF
                                                                                                      Rt'do
                                                                                                        J
                                                 §
YS.                                              §           HARRIS COUNTY, TEXAS
                                                 §
DIAMOND OFFSHORE COMPANY,                        §
ET AL.                                           §                      JUDICIAL DISTRICT


                         SECOND AMENDED FINAL JUDGMENT

        BE IT REMEMBERED that this matter was called in its order on the docket for trial on

February 18,2008. In this cause, lohnathan Cummings is Plaintiff, and Diamond Offshore Services

Company and Diamond Offshore Management Company are Defendants.

       The Plaintiff appeared in person and by attorney of record. All parties announced ready for

trial. Although a jury was previously demanded, the jury was waived and all matters of fact, all

controversies and all matters of law were submitted to the Court for detennination.

       After considering the pleadings, evidence, briefs and arguments of counsel, the Court finds

that lohnathan Cummings failed to prove by a preponderance of credible evidence that the injuries

he sustained on December 16,2004 while employed as a seaman by Defendant Diamond Offshore

Management Company were caused by negligence acts or omissions of either Defendant Diamond

Offshore Services Company, Defendant Diamond Offshore Management Company or its employees,

including Randall A. Watson, lr. Further, the Court finds that the vessel was not unseaworthy.

       The Court further finds that on December 16,2004 Plaintiff sustained injuries in the course

and scope of his employment while employed as a seaman by Defendant Diamond Offshore

Management Company for which he is entitled to future maintenance at the rate of$25.00 per day

in the total a.~ount of$4,500.00 and futuie cure in the amount of$112,500.00. The Court finds that

Plaintiff shall reach maximum medical improvement on August 18, 2008.

                                                                     RECORDER'S MEMORANDUM:
                                                                    This instNment is of poor quality
                                                                    and not satisfactory for photographic
                                                                    recordation andior alterations were
                                                                    present <it the time of filming



000127
        It is therefore ORDERED, ADJUDGED AND DECREED, that Plaintiff Johnathan

Cummings is entitled to a damage award against the Defendants in the amount of $112,500.00 for

future cure and for future maintenance in the amount of$4,500.00.

        Although previously sued herein, Diamond Offshore Company, Diamond Offshore Drilling,

Diamond Offshore Drilling Services, Inc., Diamond Offshore Management company, Dimnond

Offshore, Inc. and Diamond Offshore (USA), Inc. were previously voluntarily dismissed by Plaintiff

in this cause. Defendant Hornbeck Offshore Operators, LLC was dismissed from this cause by

summary judgment entered on January 20, 2006. Inasmuch as this judgment disposes of all

remaining parties and all issues, this is a Final Judgment and is appealable.

       IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that 10hnathan Cummings

recover post-judgment interest on the total sum at the annual rate of 5.0 percent (5%) from the date

the Second Amended Final Judgment was signed until the date this judgment is paid in full.

       All costs of court shall be taxed against the party incuning the same.


SIGNED this      J7    day of   ~               , 2008.




                                                  The Honorable Pat .




                                                                        F I LED
                                                                         Theresa Chang
                                                                          District Clerk

                                                                            IOL 15 200'!.-.     A
                                                                         -      . ,1--:'2-1 L
                                                                     Time:Hamscou~
                                                                      By_        OeputY




000128
5
                                                          NO. 2005-09209

  JOHNATHAN CUMMINGS                                             §                IN THE DISTRICT COURT OF
                                                                 §
  VS.                                                            §                HARRIS COUNTY, T E X A S
                                                                 §
  DIAMOND OFFSHORE COMP ANY,                                     §
  ETAL                                                           §                 190TH JUDICIAL DISTRICT

                                                      NOTICE OF APPEAL

 TO THE HONORABLE JUDGE OF SAID COURT:

                 COME NOW Defendants/Appellants, Diamond Offshore Management Company and

 Diamond Offshore Services Company, and pursuant to TEX.R.APp.P. Rule 25.1, file this.Notice

 of Appeal, showing this Honorable Court the following:

                 1.             Appellants desire to appeal [rom the Amended Final Judgment signed by this

 Court on May 9.2008, awarding damages to Plaintiff and from the Trial Court's Findings of Fact

and Conclusions of Law dated May 9,2008.

                2.              Appellants appeal to either the First or Fourteenth Court of Appeals.

                                                              Respectfully submitted,




                                                                 ~~~,
                                                                 '~on                             cd    ~
                                                                                                        <c
                                                              State Bar No. 09424750              ~:i<:><
                                                                                                 zo::w
                                                              Kensington I, Suite :WO            <l;kJl-
                                                                        -                     a::r:-J~
                                                               1600 Highway 6 South           .. CJ<..>i--
                                                              Sugar Land, Texas 77,178        ~5t;S CO
                                                                                               -~,     0
                                                                                                                ,
                                                                                                                ~

                                                              (21'1) 295-6000 Telephone       k.i',Fr0 I . :o!
                                                              (2SI) 29')-6010 Facsimi:e         ~;;;~ §~~
                                                                                                1-00::          ~
                                                              Attomeys for Defendants/Appellants. ~...,        ::J
                                                              Diamond Offihore Management c~alq! an~ >-e;;:
                                                              Diamond Offihore ServIces Campa )
                                                                                                           o roC3




30.1 t7·NOlicc fo Appeal - Slale ("{lUll



                      000138
                                         CERTIFICATE OF SERVICE

          I, the undersigned, hereby certifY that I am a member of the firm of BAlE & GODKIN,
  LLP, attorneys for the Defendants!Appellants herein, and that I have provided a copy of the
  foregoing to all counsel of record via facsimile this 6tb day of June, 2008.

                  Via Fax No. (713) 622-3224
                  Mark T. Murray
                  John Stevenson & Associates
                  24 Greenway Plaza, Suite 750
                  Houston, Texas 77046
                  Counsel for Plaintiff,
                  Johnathan Cummings




30,117fNOl;\'C [0 Appeal - Slal~ Court
                                                                                           2

      000139
6
                                                            NO. 2005-09209


 JOHNATHAN CUMMINGS                                              §            IN THE DISTRICT COURT OF
                                                                 §
 VS.                                                             §           HARRIS COUNTY, T E X A S
                                                                 §
 DIAMOND OFFSHORE COMPANY,                                       §
 ETAL                                                            §            190TH JUDICLA.L DISTRlCT


                                                      AMENDED NOTICE OF APPEAL
                                                                                           d.:
                                                                                           . -.                 (')
TO THE HONORABLE JUDGE OF SAID COURT:                                                                           N
                                                                                                  ':'.; ... _   -l
                                                                                                  c.·c',        ~
                COME NOW Defendants/Appellants, Diamond Offshore Management-Compa% and
                                                                                                                o     >-
                                                                                     .co
Diamond Offshore Services Company, and pursuant to TEX.R.ApP.P. Rule 25.1(f) file thIS

Amended Notice of Appeal, showing this Honorable Court the following:

                1.              Defendants/Appellants, timely filed their Notice of Appeal on June 6, 200S,

appealing from the Amended Final Judgment and the trial court's Findings of Fact and

Conclusions of Law, each dated May 9, 200S.

                2.             On July 17, 2008, the trial court entered a Second .'''mended Final JUdgment

awarding damages and post-judgment interest to Plaintiff The trial court did not enter additional

Findings of Fact or Conclusions of Law. A copy cf the Second Amended Final Judgment is

attached hereto for the Court's reference.

               3.              Defendants/Appellants hereby amend their Notice of Appeal to include in their

appeal the Second Amended Final Judgment signed by the Court, on July 17, 200S, in addition to

their appeal from the Amended Final Judgment and the Inal court's Findings of Fact and

Conclusions of Law, each dated May 9,2008.




.lll.! 17*Amcnded "",,1,(,"10 Appeal - SlJ1C ("'Ull



        000142
                 4.             Appellants appeal to either the First or Fourteenth Court of Appeals.

                                                              Respectfully submitted,

                                                              THE BALE LAW FIRM,        PLLC




                                                              J~
                                                              State Bar No. 01629800
                                                              Lewis E. Henderson
                                                              State Bar No. 09424750
                                                              Kensington I, Suite 200
                                                               1600 Highway 6 South
                                                              Sugar Land, Texas 77478
                                                              (281) 295-6000 Telephone
                                                              (281) 295-6010 Facsimile
                                                              AI(orneys for Defendants/Appellants,
                                                              Diamond Offshore Management Company and
                                                              Diamond Offihore Services Company

                                                      CERTIFICATE OF SERVICE

        I, the unders'.".lIcd. hereby certify that I am a member of the firm of THE BALE LAW
FIRM, PLLC, attorneys f(,r the Defendants/Appellants herein, and that I have provided a copy of
the foregoing to all counsel () r record via facsimile this 23rd day of JUly, 2008.

                 Via FaxNo. (713) 622-3224
                 Mark T. Murray
                 John Stevenson & Associates
                 24 Greenway Plaza, Suite 750
                 Houston, Texas 77046
                 Counselfor Plaintiff,
                 Johnathan Cummings




30.117!Amer;ded N:lCic(' f(l Appeal- St3lC   Co,,,,
                                                                                                        2

       OOOI~3
                                                                                                                     \1

                                                                                                            1=2_2-   \\\1




                                             NO. 2005-.09209                                         ~jdo                 \'\1

JOHNATHAN CUl\IIMINGS                                 §           IN TIlE DISTRICT COURT OF                                   \11
                                                      §
 VS,                                                  §           HARRIS COUNTY, T E X AS
                                                      §
DJAMOND OFFSHORE COMPANY,                             §                                                              i \,1

ET AI",                                               §           190'11     .1UDJCIAL DISTRICT                      I            I,


                                                                                                                     IJ
                              SECOND AMENDED FINAL JUDGMENT
                                                                                        _._          x:
                                                                                                                                       ',1
          BE IT REMEMBERED that this matter was caned in its order on the             d1:)~k~tfor triJron
                       i                                                                ~~,_         M

February 18, 2008. In this cause, Johnathan Cummings is Plaintiff, and Diamond 6~~t~Serv~s
                                                                                       -,                                                    1
Company and Diamond Offshore Management Company are Defendants.                        ro
                                                                                       Cl
                                                                                                                                             ':1
          The Plaintiff appeared in person and by attorney ofrecord. All parties a.tmounced ready for

trial. Although a jury was previously demanded, the jury was waived andalJ. matters of fact, all                                              \1
controversies and all mattcrs of low were submitted to the Court for detemtinatiOlJ.                                  I

          After consideting the nk;"lings, evidence, briefs and arguments of couo.sel, the Court fmds                 !
th~t   Johnathan Cummings L,.: . i \0 prove by a preponderance of Credible evidence that the injuries                 I
                                                                                                                      I                            1
he sastained on December 16, ."):1 while employed as a seaman by DefendaiJ.t Diamond Offshore                         i
                                                                                                                                                   1
Management Company were"" .:.r,d by negligence acts or omissions of either D<:fendant Diamond                         I   I
                                                                                                                          i
Offshore Services Company, j),        • "dantDiamond Offshore ManageIl1entCompanyor its employees,.                                                1
including RandatJ A. Watson, J1 further, the COUlt finds that the vessel was not unSeaworthy,                             \
                                                                                                                          [                            1
        . The Court further fi:t1ds   ;( on.December 1.6; 2004 Plaintiff sustained injuries in the course                 r
and scope of his employment ,'.Hle employed as a seaman by Defendant Dillrrtond Offshore                                  i
                                                                                                                          i
                                                                                                                                                       1
Management Company for which he is entitled to future maintenance at the rate of$25.00 per day                             l                           1
                                                                                                                           I
                                                                                                                            I
in the totalllrrtount of$4,500.00 and future cure in the amount of$112,500.00. theCourtfi:t1ds that

:Plaintiff shall reach maximum medical improvement on August] 8, 200K
                                                                                                                           I                               1

                                                                                                                              \                            1

                                                                                                                              \                            1

                                                                                                                              \                                1
                                                                                                                              !
   '000144                                                                                                                                                     I
;. ,.




                It is therefore ORDERED, ADJUDGED AND DECREED, that Plaintiff ]ohnathan

        Cummings is entitled to a damage award against the Defendants in the amount of$112,500.00 for

        :future cure and for future mainteni\l1ce in the amount of$4,500.00.

                Although previoll$ly suedh.erein, Diamond Offshore Company, Diamond Offshore Dd.Jling,

        Dia..'lOnd Offshore Drilling Services, Inc., Diamond OffsJlore Management company, Diamond

        Offshore, lne. and Diamond Offshore (USA), lne. were previously voluntarily dismissed by Plaintiff

        in this cause. Defendant Hornbeck Offshore Operators, LLC was dismissed from this cause by

        summary judgment entered on Jao.uary 20, 2006. Inasmuch as this judgment disposes of all

        remaining parties and allissues, this is a Final judgment and is appealable.

               IT IS FUR1HER ORDERED, ADJUDGED, AND DECREED that Jobnathan Cummings

        recoverpost-judgmentinterest on the total sum at the annual rate of5.0 percent (5%) from the date
                                                                                                                !
        the Second Amended Final Judgment was signed until the date this judgment is paid in full.

               All costs of court shall be taxed against the party incurring the same.


        SIGNED this     n      day of   ~              ,200S.




                                                         ~~
                                                         The Honorable Pa~




                                                                                                                I
                                                                                                                i
                                                                                                                I·
                                                                                FILED                           I
                                                                                    Theresa Chang
                                                                                     District Clerk             I
                                                                                    JUL 15 2.66a
                                                                            Time: l-I3,fl19 covrity. Tl!X::l~
                                                                                                                I
                                                                               By          . u"""fj
                                                                                                                I


                                                                                                                I
                                                                                                                !
                                                                                                                I
        000145
7
Opinion issued April 22, 2010.




                                   In The

                            ~oud of §.ppea:l~
                                  For The

                        jftr~t 1J9h~trtct of -m;exa:~


                            NO.OI-08-00647-CV


      DIAMOND OFFSHORE MANAGEMENT CO. AND DIAMOND
              OFFSHORE SERVICES CO., Appellants
                                     V.
                    JONATHAN CUMMINGS, Appellee



                  On Appeal from the 190th District Court
                           Harris County, Texas
                     Trial Court Case No. 2005-09209



                       MEMORANDUM OPINION

     Appellants, Diamond Offshore Management Company and Diamond

Offshore Services Company (together, "the Diamond parties"), appeal from a
judgment, rendered after a bench trial, in an admiralty case.      We detennine

whether the trial court's award of future maintenance and cure to appellee,

Jonathan Cummings, was in clear error. We reverse that portion of the judgment

awarding cure, we affirm that portion of the judgment awarding maintenance and

determining the date of maximum medical improvement CMMI"), and we remand

the case.

                                BACKGROUND

      Cummings was an employee of Diamond Offshore Management Company

and a crewmember of the OCEAN SP ARTAN, a jack-up rig owned by Diamond

Offshore Services Company.     Cummings, a floor hand, was injured when he fell

from the OCEAN SPARTAN's personnel basket while being transferred onto a

crew boat. Cummings injured his shoulder, neck, and back.

      Cummings sued the Diamond parties, along with two other entities that were

dismissed before trial and are not parties to this appeal, for the vessel's

unseawo11hiness, negligence under the Jones Act,1 and maintenance and cure.

Trial was to the court. The court found that no negligence or fault of the Diamond

pm1ies caused Cummings's injuries and that the OCEAN SPARTAN was

seaw011hy. The court found that Cummings's fall caused injuries that required

medical treatment in the past, but that no past medical expense or cure obligation


      See 46 U.S.C-S. §30104 (2007).
                                        2
was owed due to a stipulation that the parties had entered into before trial. The

court further found that the fall caused injuries that would require medical

treatment in the future and, likewise, that Cummings would "in reasonable

probability incur medical expenses in the future."            The court found that

Cummings's MMI would be reached on August 18,2008, which was six months

from the start of trial. The trial court concluded that Cummings was entitled to

$112,500 of cure.       The court also concluded that Cummings was entitled to

maintenance of $4,500, based on the MMI and the maintenance rate of $25 per day

that the court had also found.

      The court rendered a take-nothing judgment on Cummings's claims for

negligence     and   unseawOJihiness;    awarded     Cummings     $4,500   In   future

maintenance; awarded him $112,500 in future cure; and recited that MMI would be

reached on August 18, 2008. Only the Diamond pmiies appeal.

                           MAINTENANCE AND CURE

      In three issues, the Diamond parties challenge that portion of the judgment

that awarded future maintenance and cure to Cummings.               Specifically, they

contend that

      •        Cummings's right to maintenance and cure "terminated because
               he ceased to avail himself of curative treatment";

      •        the trial court erred in declaring a future date ofMMI;



                                           3
       •     the trial court erred in awarding a lump sum for future
             maintenance and for future cure because (i) "there is no
             obligation to prepay maintenance and cure" and (ii)
             Cummings's future back surgery was only a possibility, rather
             than a definitely asceliainable event; and

       •     the trial court erred in detennining the dollar amount of future
             cure awarded.

A.    The Law

      Maintenance and cure are creatures of the general maritime law. "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 cOUli must apply

substantive federal maritime law but follow state procedure."         Mar. Overseas

Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998).      In   a   maintenance-and-cure

case, we review a trial court's findings of fact for clear error and its conclusions of

law de novo. See Silmon v. Can Do 11, Inc., 89 F.3d 240, 242 (5th Cir. 1996).

"[R]eview under the 'clearly erroneous' standard is significantly deferential,

requiring a 'definite and firm conviction that a mistake has been committed.'"

Concrete Pipe & Prods. o/CA, Inc. v. Constr. Laborers Pension Trust/or S. CA.,

508 U.S. 602, 623, 113 S. Ct. 2264, 2280 (1993) (quoting United States v. United

States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)); see FED. R. CIY.

P. 52a(6) ("[T]he reviewing court must give due regard to the trial court's

opportunity to judge the witnesses' credibility.").



                                          4
      "Maintenance and cure is an ancient remedy peculiar to Admiralty Law

arising out of contract and not negligence." Socony-Vacuum Oil Co. v. Aderhold,

240 S.W.2d 751, 754 (Tex. 1951). "Maintenance is a per diem living allowance

paid so long as the seaman is outside the hospital ... ," 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 "is achieved when it

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

seaman's condition." Prude, 769 S.W.2d at 664. "Admiralty courts have been

liberal in interpreting this [maintenance-and-cure] duty 'for the benefit and

protection of seamen who are its wards. ", Vaughan, 369 U.S. at 531-32, 82 S. Ct.

at 1000 (quoting Calmar   s.s.   Corp. v. Taylor, 303 U.S. 525,529,58 S. Ct. 651,

654 (1938». Accordingly, "[w]hen there are ambiguities or doubts [concerning

maintenance and cure], they are resolved in favor of the seaman." Id.

B.    Termination for Failure to Avail Self of Curative Treatment

      In issue one, the Diamond parties contend that Cummings's right to

maintenance and cure "terminated because he ceased to avail himself of curative


                                          5
treatment."   They argue that Cummings "has repeatedly ignored the numerous

recommendations of his treating physicians to have lower back surgery ... thereby

ceasing to avail himself of curative treatment." The Diamond parties consider this

to have been a willful "reject[tion of] the recommended medical treatment" for his

back so that their "obligation to provide additional maintenance and cure to

[Cummings] has terminated."

      "The general rule is well settled that a seaman's right to maintenance and

cure is forfeited by a willful rejection of the recommended medical aid." Coulter

v. Ingram Pipeline, Inc., 511 F.2d 735, 737 (5th Cir. 1975). "However, this rule is

not inexorably applied and exceptions exist when reasonable grounds for refusing

care or failing to follow instructions are shown."     Id.   "The question then is

whether there existed any extenuating circumstances which made the [seaman's]

failure to follow the prescribed regimen either reasonable or something less than a

willful rejection." Id. at 738.

      The trial court concluded that Cummings was entitled to future medical cure.

In support, the trial court found that Cummings would in reasonable probability

incur future medical expenses for his injuries, that he would require necessary

medical care in the future due to those injuries, and that he would reach MMI after

a six-month period. Assuming without deciding that the trial court also implicitly




                                         6
found that Cummings did not willfully reject the recommended back surgery,2 we

hold that that implicit finding was not clearly erroneous.

      Cummings was injured on December 16,2004. Dr. Donovan, Cummings's

principal treating physician, first saw Cummings on December 27, 2004, for back,

neck, and shoulder pain. Between then and January 6, 2005, Dr. Donovan saw

Cummings twice.

      In February 2005, Dr. Donovan operated on Cummings's shoulder. Around

October 21, 2005, Dr. Donovan sent Cummings to Dr. Tomaszek, although

Cummings did not see Dr. Tomaszek until two months later.                Dr. Tomaszek

recommended neck surgery for Cummings on December 20, 2005. The same day,

Dr. Donovan also recommended a partial diskectomy on Cummings's lower back.

      Cummings did not see Dr. Donovan between the December 20, 2005

evaluation and November 2006, although he did visit him in Mayor June of that

year and again the week before trial in February 2008. However, during part of

2006, Cummings underwent conservative treatment, including physical therapy
2
      See TEX. R. CIV. P. 299 ("[W]hen one or more elements [of a ground of recovery
      or defense] have been found by the trial court, omitted unrequested elements,
      when supported by evidence, will be supplied by presumption in support of the
      judgment."). Cummings contends that the Diamond parties have waived their
      issue one for not having pleaded willful rejection or sought findings on it, arguing
      that willful rejection is an affirmative defense on which they had the burden. By
      reply brief, the Diamond parties disagree that the matter is an affirmative defense
      on which they had to request findings and argue that, even if it is, a finding on it
      was implicit. We need not resolve these disputes because, in any event, the
      Diamond parties' challenge based upon any such implicit finding is unmeritorious
      for the reasons discussed below.
                                            7
and two rounds of epidural steroid injections to his neck and lower back, the latter

procedures having been ordered by Dr. Donovan.

       In September 2007, Dr. Tomaszek performed Cummings's neck surgery--

five months before trial. Cummings did home exercises for his neck afterwards.

       Cummings admitted at trial that the back surgery "ha[d] not [yet] happened."

However, he also testified that he still had problems with his lower back, which

interfered with his bending, stooping, and lifting; that he felt that he needed the

back surgery; and that, if the surgery were authorized that very day, "I would take

it."

       Jimmy Robicheaux, the Diamond parties' claims manager for Cummings's

case, admitted

       •     that he recalled Dr. Donovan's June 2006 deposition testimony
             that Cummings needed lumbar surgery,

       •     that "shortly after" that June deposition the Diamond parties
             "received correspondence through [their] lawyers" from
             Cummings's counsel "requesting that Diamond make
             arrangements so that Mr. Cummings could get that surgery,,,3
             and

       •     that in February 2008, just before trial, "Dr. Donovan
             continue[d] to insist that Mr. Cummings needs that surgery."

3
       Robicheaux later testified that he did not remember seeing a request from
       Cummings's counsel to authorize the back surgery, but the trial cou11 would not
       have clearly elTed in discounting this testimony because (1) it differed from his
       earlier acknowledgement that he had in fact received such a request and (2) he
       admitted that he knew that Dr. Donovan had twice recommended the surgery.

                                           8
Nonetheless, as of June 2006, Dr. Donovan testified that the Diamond parties had

not yet corresponded with him to advise that they were ready, willing, and able to

pay for medical bills that Cummings had by then incurred. The Diamond parties

point to no evidence that they advised Cummings or Dr. Donovan that they had

agreed to pay the reasonable expenses of his surgery. And the trial court could

reasonably have inferred that the Diamond pmiies had not authorized such surgery

before trial because Robicheaux testified at trial that "right now" and "today" they

were authorizing Cummings's back surgery. Finally, Cummings testified that the

neck surgery was not approved or authorized until July 2007, that the neck surgery

occurred only two months after the Diamond pmiies approved it, that the only way

that Dr. Tomaszek would perform that surgery was if he had a deposit, and that

Cummings's counsel paid that deposit on Cummings's behalf.           The Diamond

paliies point to no similar evidence that they approved reasonable expenses for

back surgery for Cummings.

      The above is some evidence to support any possible implicit finding that

Cummings's failure to have back surgery was "something less than a willful

rejection," see Coulter, 511 F.2d at 738, because between Dr. Tomaszek's

recommendation of surgery in December 2005 and trial (I) Cummings was at

times undergoing other surgeries, conservative medical treatment, or independent



                                         9
medical examinations for his shoulder, neck, and back or (2) the Diamond parties

had not authorized or guaranteed the reasonable costs of such surgery.

      The Diamond parties counter that any contention that the back surgery did

not occur because they refused to authorize it is unfounded because (I) they "had

an absolute right to investigate [Cummings's] claim for maintenance and cure and

to obtain [his] medical records from the treating physicians that he selected"; (2)

Cummings did not authorize Dr. Donovan to give them any medical records until

after suit was filed; and (3) "against these facts, it is simply absurd to give any

credence to [Cummings's] self-serving testimony" that he would have the surgery

if it were now authorized.

      However,    the   Diamond paI1ies      admit that their counsel obtained

Cummings's medical records after suit was filed          111   February 2005, and

Robicheaux testified that Cummings's authorization for medical records was

served on the Diamond parties in early June 2005.       Robicheaux admitted that

whatever discovery was obtained by the Diamond parties' counsel would have

been maintained in his file and that he would have reviewed it. Therefore, by their

own admission, the Diamond paI1ies had received, by mid-200S, an authorization

to obtain Cummings's then-extent medical records. They do not explain how a

delay of six months from their initial request for records would have hampered




                                        10
their investigation of Cummings's need for back surgery, the need for which Dr.

Donovan again conveyed to them in June 2006 and February 2008.

      Finally, we generally defer to the fact finder's credibility determinations,

such as the trial court's implicitly finding credible Cummings's testimony that he

would have the surgery. See, e.g., Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th

Cir. 1995) eSpecial deference is paid to a trial court's credibility findings."), ajJ'd

on other grounds, 517 U.S. 830, 116 S. Ct. 1813 (1996).

      We overrule issue one.

C.    Declaration of MMI

      In issue two, the Diamond paliies argue that the trial court erred in declaring

a future MMI date.

      Dr. Donovan twice testified by deposition, without contradicting expert

testimony,4 that he anticipated that Cummings would reach MMI six months after

he had the surgeries to his neck and his lower back. The doctor also testified that

he thought that Cummings's "prognosis" would be "very good" if Cummings had

the neck and back surgery because Cummings "is a motivated man ... a young

man, and we can get him back with some kind of work, sure." Although the doctor

also testified that the "worst case scenario" would be that Cummings 'just never

gets better and becomes a chronic-pain patient," the trial court would not have

4
      The Diamond parties had de-designated their medical experts before trial and did
      not call them to testify.
                                          IJ
clearly erred in discounting this last bit of testimony, I.e., the court could

reasonably have concluded that the doctor did not anticipate that the worst case

scenario would occur, based on his other testimony, which was phrased in terms of

the doctor's anticipation and the patient's prognosis. This evidence supports the

trial court's determination that MMI would be reached in six months.

      The Diamond parties nonetheless argue that the trial court clearly elTed.

First, they note that the conclusions in the report of the independent medical

examination conducted by a Dr. Wood as to the condition of Cummings's spine

and the efficaciousness of surgery conflicted with those of Dr. Donovan; they

further contend that Dr. Donovan's own conclusions were not unequivocal because

he gave best- and worst-case scenarios for Cummings's recovery.            They then

indicate that the medical determination of MMI must be unequivocal for a finding

based on it to stand.

      This is not what the law cited by the Diamond parties provides, however.

Rather, those cases provide that a medical detennination to terminate a seaman's

right to maintenance and cure must be unequivocal.           See Johnson v. Marlin

Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990); Tullos v. Res. Drilling, Inc., 750 F.2d

380, 388 (5th Cir. 1985). This rule of law accords with the Supreme Court's

mandate that "[w]hen there are ambiguities or doubts [concerning maintenance and

cure], they are resolved in favor of the seaman" because seamen are wards of the


                                          12
courts. See Vaughan, 369 U.S. at 532, 82 S. Ct. at 1000. However, when a fact

finder in an admiralty case is faced with conflicting medical evidence of a

seaman's medical condition, the fact finder must resolve that conflict with an eye

toward the mandate that ambiguities or doubts are to be resolved in favor of

maintenance and cure. See Mar. Overseas Corp. v. Waiters, 923 S.W.2d 36, 41

(Tex. App.-Houston [I st Dist.] 1995) ("Because of this rule [in Vaughn to resolve

doubts in favor of seaman in maintenance-and-cure case], when the opinions of

doctors are in conflict regarding the seaman's condition, the court must resolve the

conflict in favor of the seaman's right to maintenance and cure."), mod'd on other

grounds & ajl'd as modified, 917 S.w.2d 17 (Tex. 1996). If the Diamond parties

were correct in their position, then fact finders could never award maintenance or

cure when medical testimony conflicted, despite the mandate in Vaughn. This is

not the law.

      We overrule issue two.

D.    Prepayment of Maintenance and Cure & Surgery's Possibility

      In part of issue three, the Diamond parties argue that the trial court clearly

elTed in awarding a lump-sum payment for future maintenance and cure.

Specifically, they contend that (1) the law does not require them to prepay

maintenance and cure in a lump sum and (2) even if it does, a lump sum for future




                                         13
maintenance and cure could not be awarded here because Cummings's surgery is

only a mere possibility.

       The Supreme Court has observed that "[t]he award of a lump sum in

anticipation of a 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); accord Farrell v.

United States, 336 U.S. 51l, 519, 69 S. Ct 707, 711 (1949) ("But maintenance and

cure is more certain if more limited in its benefits. It does not hold a ship to

permanent liability for a pension, neither does it give a lump-sum payment to

offset disability based on some conception of expectancy of life.") (emphasis

added). However, the Supreme Court has also observed that "[a]wards of small

amounts to cover future maintenance and cure ofa kind and for a period definitely

ascertained or ascertainable have occasionally been made." Calmar at 530-31,58

S. Ct. at 654 (emphasis added).       Courts relying on Calmar have generally

recognized that although lump-sum awards for maintenance and cure are ordinarily

not made, lump-sum awards may be made for future maintenance and cure of the

limited and ascertainable type described in Calmar.     See, e.g., Pelotto v. L&N

Towing Co., 604 F.2d 396, 401 (5th Cir. 1979). The Texas Supreme Court has also

applied this holding of Calmar. See Aderhold, 240 S.W.2d at 758 ("Defendant

argues that our discussion of maintenance is in conflict with Calmar . . . in


                                        14
providing for future maintenance.    We do not so construe it.     The plaintiff is

limited by a finding of the definite time at which he will obtain his maximum cure.

What we have said is consistent with the Calmar case."); see also Premeaux v.

Socony-Vaccuum Oil Co., 192 S.W.2d 138, 142 (Tex. 1946) (quoting Calmar's

peliinent holding in dictum).

      In this case, the trial cOUli found that Cummings would reach MMI after six

months, which the court calculated from the date of trial. As discussed before, the

trial court could reasonably have credited Dr. Donovan's testimony that he

believed that Cummings would reach MMI six months after his last surgery. The

Diamond parties do not contest the finding that the maintenance rate was $25 per

day. Applying both of these findings, the trial court concluded that Cummings was

entitled to $4,500 in future maintenance. And based on its further findings that

Cummings would in reasonable probability incur future medical expenses for his

injuries and that he would require necessary future medical care, the trial court

concluded that Cummings was entitled to future cure of $112,500, which

conformed to Dr. Donovan's estimates for costs of surgery, medication, and

rehabilitation 5 There was evidence that Cummings needed the lower~back surgery




5
      Whether the total amount awarded for the sale remaining surgery and
      rehabilitation was clear error is discussed further below.


                                        15
and that it was the sole remammg recommended surgery for his injuries, and

Cummings testified that he would have the surgery if it was authorized.

      On this evidence, the trial comi did not clearly err in implicitly concluding

that a lump-sum award of future maintenance for this fixed period, and of future

cure for this one remaining procedure and subsequent rehabilitation, could be

granted because they were "of a kind and for a period definitely ascertained or

asceliainable." Calmar at 531, 58 S. Ct. at 654; see also Morales v. Garijak, Inc.,

829 F.2d 1355, (5th Cir. 1987) (holding that award for future maintenance and

cure was suppolied by physician's testimony that surgery was necessaJY and would

require five months of rehabilitation, and that second surgery might have to be

redone if first surgery did not succeed, with worst -case scenario of 1.5 years of

treatment and recuperation; modifying judgment to award same until MMI was

achieved, as it was impossible to fix precise date of MMI); Lirette v. K&B Boat

Rentals, Inc., 579 F.2d 968, 969 (5th Cir. 1978) (affirming summary judgment

awarding future maintenance and cure to claimant "until he has reached maximum

cure," concluding that judgment did not contravene Calmar); Pallis v. United

States, No. 09-40088, 2010 WL 785171, at *7 (5th Cir. Mar. 9, 2010) (not

designated for publication) (holding that trial court clearly erred in denying future

maintenance because, in having found that claimant would incur future medical

expenses for physical therapy and knee replacement surgeJY, the court "implied a


                                         16
definite period of time for the completion of that treatment" under Calmar and

progeny, so that failure to award future maintenance was error).

      The cases cited by the Diamond parties are factually distinguishable or did

not involve awards of future maintenance or cure in lump sum 6

      The Diamond paIiies further respond that Cummings could not be awarded a

lump sum because seamen have the right to bring serial suits to collect

6
      In both Farrell and Calmar, the seaman sought maintenance and cure for life or
      without regard to MMI. See Farrell v. United States, 336 U.S. 511, 518, 69 S. Ct.
      707,711 (1949); Calmar SS Corp. v. Taylor, 303 U.S. 525, 530, 58 S. Ct. 651,
      654 (1938). Pelotto v. L&N Towing Co. concerned whether res judicata, collateral
      estoppel, or rejection of free medical care barred a serial suit for damages for
      failure to agree to provide care. 604 F.2d 396, passim (5th Cir. 1979). In
      Haughton v. Blackships, Inc., the appellate court upheld the trial court's denial of
      a lump-sum payment for the expense of future surgery to a seaman who admitted
      that he did not then contemplate the operation. 462 F.2d 788, 789 (5th Cir. 1972).
      In Bonneau v. Guidance Fishing Corp., the trial court rejected a request for a
      lump-sum cure payment for future ankle-fusion surgeries when "[n]one of the
      doctors' opinions stated that an ankle surgery would be necessary 'in the
      immediate future,'" which made the future operations only possibilities. 919 F.
      Supp. 46, 48 (D. Mass. 1996). Here, in contrast, Dr. Donovan repeatedly stated
      that Cummings needed the surgery; the medical tests indicated that the injury and
      pain arising from it, which Dr. Donovan wanted to treat by the recommended
      surgery, had existed from the start; and Cummings stated that he would have the
      surgery that day if it were approved. In Maritime Overseas Corp. v. Thomas, the
      court considered a challenge to the jury's determination of MMI. 681 S.W.2d
      160, 163 (Tex. App.-Houston [14th Dist.] 1984, no writ). The court in
      Springborn v. American Commercial Barge Lines, Inc. was considering whether
      the jury's finding of MMI underlying its award of maintenance (not cure. as that
      award was not challenged), most of which was incurred before trial, was
      supportable. 767 F.2d 89, 95 (5th Cir. 1985). In a footnote, the court rejected the
      claimant's suggestion that the maintenance award could be supported by a
      possible future surgery because "[wlith no finding as to the event-future
      surgery--or the duration, the mere possibility of future surgery in this case was
      insutlicient" Id. n.19. And the Dupree v. Otis Engineering Corp. court merely
      noted in dictum the general rule that lump-sum awards of future maintenance and
      cure are ordinarily not made. 641 F.2d 229,234 n.6 (5th Cir. 1981).
                                           17
maintenance and cure as it comes due. See, e.g., Prude, 769 S.W.2d at 665; see

also Pelotto, 604 F.2d at 401 (recognizing that res judicata will not bar such

subsequent suits). However, just because a seaman may bring serial suits to collect

cure payments as they come due does not mean that he always must do so, rather

than seeking a future maintenance or cure in a single suit under appropriate

circumstances, or that that means is his exclusive remedy. See Lirette, 579 F.2d at

970 (rejecting defendant's argument that serial-suit right is exclusive remedy of

seaman, and affirming judgment for future maintenance "until [seaman] has

reached maximum cure"). If that were a seaman's sole remedy, then the Supreme

COUli would not have recognized an exception for lump-sum awards of future

maintenance and cure "of a kind and for a period definitely ascertained or

asceliainable." E.g., Calmar 303 U.S. at 531,58 S. Ct. at 654.

      Likewise, the Diamond parties rely on Dominguez v. Marine Transport

Management Co. for their related position that a shipowner has no obligation to

prepay for medical tests or treatment. 1992 A.M.C. 2862, 2864 (E.D. La. 1992).

The cited comment from Dominguez was mere dictum, and in it, the court stated

that it was "unable to find a single precedent requiring that the maritime employer

guarantee to pay for tests" before they are done.       Id.   This position is not

universally held. See Sullivan v. Tropical Tuna, Inc., 963 F. Supp. 42, 45 (D.

Mass. 1997) (disagreeing with Dominguez court's dictum and holding, "In light of


                                        18
the realities of the current health care system, this Court observes that an injured

seaman often will be unable to obtain necessary medical treatment unless he can

first demonstrate the ability to pay. As a result, the Court holds that a shipowner's

duty to pay maintenance and cure encompasses a duty to guarantee payment prior

to treatment for all reasonable medical expenses. This ruling appropriately upholds

the principle set forth in Vaughan v. Atkinson . . . ."); Weeks Marine, Inc. v.

Bowman, No. 04-0009, 2006 WL 2178514, at *2 (ED. La. July 28, 2006) (not

designated for publication) (adopting Sullivan court's holding); Gorum v. Ensco

Offshore Co., Nos. Civ. A. 02-2030, Civ. A. 02-2031, 2002 WL 31528460, at *10

(ED. La. Nov. 14,2002) (not designated for publication) (same); see also Eldridge

v. Star Line, No. 07-14810, 2009 WL 1513991, at *1 (E.D. Mich. May 29, 2009)

(not designated for publication). In any event, the issue before us is whether future

cure may be awarded in a lump sum, and the Supreme Court has clearly indicated

that it can be, under the appropriate circumstances. See Calmar 303 U.S. at 531,

58 S. Ct. at 654.

      We overrule this portion of issue three.

E.    Amount of Cure Awarded

      In the remainder of issue three, the Diamond parties contend that Dr.

Donovan's estimates of reasonable and necessary costs for future medical care

were based on assumptions that were "no longer accurate at the time of trial"


                                         19
because they included estimated costs for neck surgery. The neck surgery had not

taken place when Dr. Donovan was deposed, but it had been perfonned by the time

of trial, and the Diamond parties either had paid for it or had stipulated to

indemnify Cummings for it before trial.        The Diamond parties pray that the

judgment be reversed for that reason, among others.         We interpret this as an

argument that the trial court committed clear error in implicitly finding that the

cost of future cure was $112,500, the amount of cure that the court concluded

Cummings should be awarded.         This clear-error argument is akin to a factual-

sufficiency challenge that the dollar amount awarded was excessive. Cf Ellis, 971

S.W.2d at 406 ("The standard of review for an excessive damages complaint         IS


factual sufficiency of the evidence.").

      By the time of trial, Cummings had had his neck surgery and had recovered

from it, and the trial court found that "no past medical expense or past cure

obligation is owed by [the Diamond parties] due to the stipulation at trial to

indemnify Cummings for these bills" The only remaining recommended surgery

at the time of trial was the surgery to Cummings's lower back, including

medication and rehabilitation related to it. The estimate of future cure expenses in

Dr. Donovan's June 2006 deposition testimony, which predated the neck surgery,

clearly included costs related to both the neck and back surgeries.




                                          20
      The trial cOUli entered no findings of fact as to how it reached the total sum

that it awarded for future cure, and the Diamond parties did not request additional

findings of fact,7 but the only evidence of the amount of future medical expenses

came from Dr. Donovan's deposition testimony, which does not support the full

amount awarded for the sole recommended surgery that remained. See TEX. R.

Crv. P. 299 ("[B]ut when one or more elements [of a claim or defense] have been

found by the trial court, omitted unrequested elements, when supported by

evidence, will be supplied by presumption in support of the judgment.") (emphasis

added). The Diamond parties did not make this excessive-cure-award argument

below, but they did not have to because trial was to the court. Cf TEX. R. ApP. P.

33.1 (d) ("In a nonjury case, a complaint regarding the ... factual insufficiency of

the evidence-including a complaint that the damages found by the court are

excessive or inadequate, as distinguished from a complaint that the trial court erred

in refusing to amend a fact finding or to make an additional finding of fact-may

be made for the first time on appeal in the complaining party's brief.").

      Many of the costs related to the back surgery expressed in Dr. Donovan's

testimony can be separated from costs related to the neck surgery, but some-

specifically, those for work conditioning, work hardening, and chronic pain

management ($70,000 total)-cannot because the doctor's testimony did not


7
      See TEX. R. elv. P. 298 (providing for request for additional findings of fact).
                                            21
r
i


    segregate them between surgeries. On this record, the trial court clearly erred in

    concluding that the amount of future cure for the one remaining surgery and its

    related costs was $112,500.

          We sustain this final portion of issue three.

                                      CONCLUSION

          We affinn that portion of the judgment awarding maintenance and declaring

    the date of MMI. See TEX. R. ApP. P. 44.1 (b). We reverse that portion of the

    judgment awarding cure. See id. The remainder of the judgment remains intact.

    We remand the case for further proceedings not inconsistent with this opinion.



                                                   Sherry Radack
                                                   Chief Justice

    Panel consists of Chief Justice Radack and Justices Alcala and Higley.




                                              22
8
                                     COURT OF ApPEALS FOR THE
                              FIRST DISTRICT OF TEXAS AT HOUSTON

                                         ORDER ON MOTION



Cause number:           01-08-00647-CV           Style: Diamond Offshore Management Co. v.
                                                        Cummings

Date motion filed       May 21, 20 I 0

Type of motion:         motion for rehearing

Party filing motion:    appellants

Document to be filed:

If motion to extend time:

        Deadline to file document:

        Number of previous extensions granted:

        Length of extension sought:

It is ordered that the motion be:

        o       Granted
        181     Denied
        o       Dismissed (e.g., want ofjurisdiction, moot)
        o       Struck
        o       Other:                                                                       _

Judge's signature:                                -"S"'h"'errv'-'-JO-2CR"'a"'d"'da""c""k'-   _
                  o Acting individually    181   Acting for the Court

Panel consists of Chief Justice Radack and Justices Alcala and Higley.

Date: June 7, 2010
9
I
,




                                       COURT OF ApPEALS FOR THE
                                  FIRST DISTRICT OF TEXAS AT HOUSTON


                                            ORDER ON MOTION



    Cause number:           01-08-00647 -CV         Style: Diamond Offshore Mgmt. Co. et aL v.
                                                                Cummings

    Date motion filed       June 23, 2010

    Type of motion:         motion for en bane. reconsideration

    Party filing motion:    appellants

    Document to be filed:

    If motion to extend time:

            Deadline to file document:

           Number of previous extensions granted:

            Length of extension sought:

    It is ordered that the motion be:

           o        Granted
            ~       Denied
           o        Dismissed (e.g, want ofjurisdiction, moot)
            o       Struck
            o       Other:

    Judge's signature:                              -'S"'l"'le"rrv-'.l-'-'R"'ad"'a"'c"k'--   _
                     o Acting individually      ~   Acting for the Court

    Chief Justice Radack and Justices Jennings, Keyes, Alcala, Hanks, Higley, Bland, Sharp, and
    Massengale, participating.

    Date: July 8,2010
              . --   . _.   . _..   .

                                              JUDGMENT

                                           QCourt of ~peal~
                                        .1'fr~t mf~trftt   of (fCexa~
                                            NO.OI-08-00647-CV

    DIAMOND OFFSHORE MANAGEMENT CO. AND DIAMOND OFFSHORE
                     SERVICES CO., Appellants

                                                    V.
                                    JONATHAN CUMMINGS, Appellee

   Appeal from the 190th District Court of Harris County. (Tr. Ct. No. 2005-09209).

       This case is an appeal from the final judgment signed by the trial court on July 17,
2008. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that there was reversible error in that portion of the
last paragraph on page 1 of the trial court's judgment reciting that the appellee, Jonathan
Cummings, is entitled to "future cure in the amount of $112,500.00." The Court further
holds that there was reversible error in that portion of the first paragraph on page 2 of the
trial court's judgment decreeing that the appellee, Jonathan Cummings, "is entitled to a
damage award against the Defendants [appellants] in the amount of $112,500.00 for
future cure ...." Accordingly, the Court reverses the herein-referenced portions of the
trial court's judgment.
       The Court further holds that there was no reversible error in the last paragraph on
page 1 of the trial court's judgment reciting that the appellee, Jonathan Cummings, "is
entitled to future maintenance at the rate of $25.00 per day in the total amount of
$4,500.00 ...." The Court further holds that there was no reversible error in the first
paragraph on page 2 of the trial court's judgment reciting that "[p]laintiff [appellee] shall
reach maximum medical improvement on August 18, 2008."                 Therefore, the Court
affirms the herein-referenced portions ofthe trial court's judgment.

       The portions of the trial court's judgment that have not been reversed or affirmed
herein remain intact.

       The Court further remands the case to the trial court for further proceedings not
inconsistent with the Court's opinion oftoday's date.

       The Court orders that the appellants, Diamond Offshore Management Co. and
Diamond Offshore Services Co., jointly and severally, pay one half of the appellate costs.
The Court further orders that the appellee, Jonathan Cummings, pay one half of the
appellate costs.

       The Court orders that this decision be certified below for observance.

Panel consists of Chief Justice Radack and Justices Alcala and Higley. Opinion delivered
by Chief Justice Radack.

Judgment rendered April 22, 2010.

				
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