NUMBER 13-06-471-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DAY CRUISES MARITIME, L.L.C. AND
CORPUS CHRISTI DAY CRUISE, L.L.C., Appellants,
v.
CHRISTUS SPOHN HEALTH SYSTEM D/B/A
CHRISTUS SPOHN HOSPITAL MEMORIAL, Appellee.
On appeal from the 117th District Court of Nueces County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Garza
Appellants Day Cruises Maritime, L.L.C. and Corpus Christi Day Cruise, L.L.C.
appeal from summary judgments granted in favor of appellee Christus Spohn Health
System d/b/a Christus Spohn Hospital Memorial (“Christus”). By three issues, appellants
contend that the trial court erred. For purposes of organization, appellants’ issues will be
reordered and referred to as follows: (1) the trial court erred in granting Christus’s motion
for summary judgment on Christus’s counterclaim; (2) the trial court erred in granting
Christus’s motion for summary judgment, and denying appellants’ motion for summary
judgment, on appellant’s plea in intervention; and (3) the trial court deprived appellants of
due process of law. We affirm the trial court’s judgment in part, reverse in part, and
remand for further proceedings.
I. BACKGROUND
Judy Ann Lanado, a citizen of the Phillippines, was employed as a card dealer on
the “M/V TEXAS TREASURE,” a casino vessel operating out of Port Aransas, Texas. Day
Cruises Maritime, L.L.C. was the disponent owner of the vessel.1 The vessel was jointly
managed and operated by Florida Day Cruises, Inc. and Corpus Christi Day Cruise, L.L.C.
While working on the vessel in August of 2002, Lanado, who was pregnant at the time,
became ill. She was first taken to a hospital in Aransas Pass, Texas, and was then moved
to Christus in Corpus Christi on August 21, 2002, and admitted there with a diagnosis of
cholelithiasis, or stones in the gall bladder. Upon her admission to Christus, Lanado
signed a document entitled “Release of Information and Assignment of Health Insurance
Benefits” that provided as follows:
1. I authorize CHRISTUS Spohn to a) submit this claim on my behalf and b)
receive payment of any authorized benefits, including benefits payable for
any physician(s) services due those physicians under contract to the
hospital.
2. I certify that the information I have furnished to the Registration Office is
correct.
3. I guarantee payment for all services, including those not covered by
insurance, Medicaid or Medicare.
4. I hereby authorize my insurance benefits to be paid directly to the
physician rendering care of above named patient, for their professional
services, and I am financially responsible for non-covered services.
5. I authorize the physician or supplier of care to release any or all of the
patient’s medical record required for payment. This includes the ordering
1
A “disponent owner” of a vessel is a person or com pany which has com m ercial control over a
vessel’s operation without owning the ship as in a “bareboat charter.” M-i-link.com Maritim e Dictionary,
available at http://www.m -i-link.com/dictionary/default.asp?term =bareboat+charter (last visited Apr. 17, 2008).
A “bareboat charter” is a type of charter in which the shipowner provides only the ship and gives the
charterer— in this case, Day Cruises Maritim e, L.L.C.— com plete control, m anagem ent and operation of the
vessel for the agreed leasing period. Id.
2
and results of HIV testing and/or the diagnosis of AIDS, and psychiatric
disorders or treatment.
On August 23, 2002, Paula E. Coots, a “human resource assistant” for Texas
Treasure, signed a document entitled “Guarantee of Payment (Under Section 253 of the
Immigration and Nationality Act).” The form stated as follows:
I, Paula E. Coots, as Human Resource Assistant of the vessel or aircraft MV
TEXAS TREASURE employing the alien crewman LANADO, JUDY ANN
who upon arrival at the port of PT. ARANSAS, TX on 21 AUGUST 02 was
found to be afflicted with, or suspected of being afflicted with GALL
BLADDER. I hereby guarantee to pay any and all expenses incurred or to
be incurred for the hospitalization, care, and treatment, and for burial in the
event of death, of the said alien crewman.
Following surgery at Christus to treat her gall bladder condition, Lanado developed
internal bleeding in her abdomen that led to tachycardia and hypotension. As a result of
these complications, the fetus died and Lanado suffered severe brain damage due to lack
of oxygen. On or about September 27, 2002, she lapsed into a cerebral coma. Although
she recovered from her cholelithiasis condition, the cerebral coma left Lanado in a
permanent vegetative state. Lanado remained at Christus until her transfer to Avalon
Place, a nursing home, on October 1, 2003. Her treatment at Christus lasted over thirteen
months and resulted in total medical charges of $1,089,959.82.
On December 31, 2002, Jasper Lanado, Judy’s brother and permanent guardian,
filed a health care liability claim against Christus alleging that Christus was negligent in its
care of Judy.2 Specifically, the Lanados asserted that, while Judy Ann Lanado was at
Christus, she “was ignored by physicians and staff to a degree falling below the standard
of care necessary as required by Texas law” and that “[t]hese acts and omissions
proximately caused the injury to Plaintiffs.” Christus filed its original answer to the
Lanados’ suit on January 31, 2003, denying all allegations.
2
Jasper Lanado originally brought suit in his capacity as perm anent guardian of Judy Ann Lanado
and as next friend of Judy’s two m inor daughters, Joyze Ann Danielle Lanado and Mitze Franchette Lanado.
The record also reflects that at som e point thereafter, Judy Ann Lanado’s m other, Anunciacion Sierra, also
becam e a nam ed plaintiff. The plaintiffs will be referred to collectively as “the Lanados.”
3
On November 14, 2003, Day Cruises Maritime, L.L.C., Florida Day Cruises, Inc.,
and Corpus Christi Day Cruise, L.L.C. (collectively referred to as “Texas Treasure”) filed
a plea in intervention in the Lanados’ lawsuit, stating first that under general maritime law
it is potentially responsible as Judy’s employer for paying her medical expenses, but that
it was entitled to damages from the Lanados on the theory that it was equitably subrogated
to the Lanados for those medical expenses. Texas Treasure filed an amended plea in
intervention on November 21, 2003, adding a request for declaratory judgment that Texas
Treasure was not obligated to pay Christus for Lanado’s medical care. On November 25,
2003, Texas Treasure filed a traditional motion for summary judgment based on its plea
in intervention.
Christus subsequently filed a counterclaim against Texas Treasure, contending that
Texas Treasure was solely responsible for paying Lanado’s hospital bill.3 Christus filed a
motion for summary judgment on the counterclaim on October 14, 2005. The counterclaim
and the motion for summary judgment asserted that Texas Treasure was responsible for
the entirety of Lanado’s hospital bill as a matter of law, for three reasons: (1) Christus had
a valid suit on a sworn account and Texas Treasure had failed to file an effective verified
denial, see TEX . R. CIV. P. 165; (2) Texas Treasure had executed a valid guarantee of
payment with respect to Lanado’s medical expenses; and (3) Texas Treasure had a duty
of payment to Lanado as a matter of law, and Lanado had effectively assigned to Christus
her rights corresponding to that duty.4
On or about December 2003, the Lanados settled their claim against Christus. As
part of the settlement agreement, Christus agreed to pay a lump sum, and fund an annuity
3
Christus filed an am ended counterclaim against T exas T reasure on Decem ber 31, 2003. The
am ended counterclaim was Christus’s active pleading at the tim e that the trial court granted its m otion for
sum m ar judgm ent. However, we will refer here to Christus’s am ended counterclaim as its “counterclaim ” for
purposes of convenience.
4
As discussed fully herein, general m aritim e law provides that a shipowner m ust pay “m aintenance
and cure” to a seam an who is injured or becom es ill while in the service of a ship. Maritime Overseas Corp.
v. W aiters, 917 S.W .2d 17, 18 (Tex. 1996) (citing Vaughn v. Atkinson, 369 U.S. 529 (1961) and Guevara v.
Maritime Overseas Corp., 59 F.3d 1496, 1499 (5th Cir. 1995)). The injured or ill seam an is entitled to
m aintenance and cure benefits regardless of whether the shipowner was at fault. W aiters, 917 S.W .2d at 18.
4
that would provide periodic payments to the Lanados.5 At a hearing on December 13,
2003, Jasper Lanado and the guardian ad litem for the two minor children testified that the
settlement agreement was fair and in the best interests of Lanado and her family. The trial
court entered an agreed judgment on April 7, 2004, approving the settlement agreement.
Neither the settlement agreement nor the agreed judgment contained an admission of
negligence or liability on the part of Christus. In fact, the agreed judgment stated
specifically that “[t]he Court is further of the opinion that the liability of the Defendant
[Christus] is uncertain, doubtful, indefinite, and disputed.” As part of the settlement, the
Lanados agreed to assign to Christus their right to seek recovery of Judy’s medical
expenses from her employer.6
Meanwhile, the claims between Texas Treasure and Christus remained pending in
the trial court. Both Texas Treasure and Christus filed traditional motions for summary
judgment with respect to the claims made by Texas Treasure in its plea in intervention.
Texas Treasure argued that it was entitled to summary judgment on its plea in intervention
because, as a matter of law, it was equitably subrogated to the amounts received by the
Lanados under their settlement agreement; Christus argued that Texas law provides no
such remedy and so those claims must fail as a matter of law. After a hearing on March
26, 2004, the trial court denied Texas Treasure’s motion for summary judgment and
granted Christus’s motion for summary judgment as to Texas Treasure’s claims in their
plea in intervention.7
After a hearing on March 3, 2006, the trial court granted Christus’s motion for
5
Neither party advises this Court of the exact am ount(s) which Christus agreed to pay the Lanados
pursuant to their settlem ent agreem ent. Moreover, the dollar am ounts of the settlem ent are redacted in the
copy of the agreem ent in the record that is referenced by Christus.
6
Christus notes that this assignm ent was m erely a “ratification” of Lanado’s earlier assignm ent of her
m aintenance and cure benefits to Christus as evidenced by the “Release of Inform ation and Assignm ent of
Health Insurance Benefits” that Lanado signed upon her adm ission to Christus.
7
The trial court entered written interlocutory orders on April 27, 2004, denying Texas Treasure’s
m otion for sum m ary judgm ent, and on May 3, 2004, granting Christus’s m otion for sum m ary judgm ent as to
all of Texas Treasure’s affirm ative claim s for relief.
5
summary judgment with respect to its counterclaim against Texas Treasure, finding in favor
of Christus on all three grounds asserted in its counterclaim.
Prior to the March 3, 2006 hearing, however, Christus had filed a Supplemental
Motion for Summary Judgment which included an attorney’s fees affidavit that had not
been filed with any previous motion. This Supplemental Motion for Summary Judgment
was apparently not served upon Texas Treasure’s trial counsel.8 After the March 3, 2006
hearing, having discovered that they were not served with Christus’s Supplemental Motion
for Summary Judgment, Texas Treasure filed a motion for sanctions and a motion for leave
to file a response to the supplemental motion. After an additional hearing on May 3, 2006,
the trial court denied Texas Treasure’s motion for sanctions, but partially granted Texas
Treasure’s motion for leave to file a response to the Supplemental Motion for Summary
Judgment, stating that it could file a response with regard to attorney’s fees only.9
The trial court rendered its written final judgment on May 26, 2006, awarding
Christus damages and pre-judgment interest in the sum of $1,272,714.68. Texas Treasure
was also ordered to pay $49,518.68 to Christus in attorney’s fees, along with another
$25,000 in attorney’s fees upon an unsuccessful appeal by Texas Treasure to this Court
and $10,000 in attorney’s fees upon an unsuccessful appeal by Texas Treasure to the
Texas Supreme Court.10 The trial court specifically stated in its order that Christus’s motion
for summary judgment:
8
Christus notes correctly that the docum ent with which Texas Treasure was not served was actually
entitled “Counter-Plaintiff Christus Spohn Health System ’s Reply to Response of Intervenors [Texas Treasure]
to Motion for Sum m ary Judgm ent of Christus on Counterclaim Against Intervenors and Christus’[s]
Supplem ent to Motion for Sum m ary Judgm ent.” For brevity’s sake, we will refer to this docum ent as
Christus’s “Supplem ental Motion for Sum m ary Judgm ent.”
9
Texas Treasure also filed an Objection to Entry of Judgm ent, contending that the trial court should
not enter a judgm ent based on its ruling at the hearing of March 3, 2006, until such tim e as Texas Treasure’s
response to Christus’s Supplem ental Motion for Sum m ary Judgment could be considered. This was granted
by the trial court at the hearing of May 3, 2006.
10
The May 26, 2006 final judgm ent also m em orialized the trial court’s previous rulings: (1) denying
Texas Treasure’s m otion for leave to file its fourth am ended answer to Christus’s counterclaim ; (2) denying
Texas Treasure’s m otion for sanctions; (3) partially granting Texas Treasure’s m otion for leave to file a
response to Christus’s Supplem ental Motion for Sum m ary Judgm ent; and (4) granting Texas Treasure’s
Objection to Entry of Judgm ent.
6
[I]s meritorious and should be granted on all grounds, specifically, a valid
sworn account without effective verified denial; Guarantee of Payment under
the Immigration and Nationality Act, 8 C.F.R. §253.1(a) executed by the M/V
Texas Treasure; duty of payment of the medical expenses of Judy Lanado
under the Immigration and Nationality Act, 8 C.F.R. §253.1(e), and the
executed Assignment of Benefits.
Neither party requested findings of fact or conclusions of law.
On May 23, 2006, Florida Day Cruises, Inc., filed a suggestion of bankruptcy with
the trial court, stating that the company had filed a voluntary petition for Chapter 7
bankruptcy protection in Florida on January 18, 2005. See 11 U.S.C. §§ 701–784.
Following this development, Christus filed an unopposed motion on July 27, 2006 to sever
its claim against Florida Day Cruises, Inc. The trial court granted the motion by written
order on September 22, 2006. Florida Day Cruises, Inc., is not a party to this appeal.
Appellants filed their “Motion for Reconsideration and Motion for New Trial” on June
23, 2006, which was overruled by operation of law on August 9, 2006. See TEX . R. CIV. P.
329b(c). Appellants filed their Notice of Appeal on August 24, 2006. This appeal ensued.
II. JURISDICTION
On appeal, appellants first assert that we have no jurisdiction to consider this
appeal, contending that the judgment issued on May 26, 2006 was voidable and not final
because it was rendered not only against appellants but also against Florida Day Cruises,
Inc., which had previously filed for bankruptcy. See 11 U.S.C. § 362(a); In re Sw. Bell Tel.
Co., 35 S.W.3d 602, 604 (2000) (stating that “when a defendant files a bankruptcy petition,
an automatic stay goes into effect and abates any judicial proceeding against that party.”).
Although the automatic stay would operate only against the bankruptcy debtor, Florida Day
Cruises, and not against appellants, see id., appellants contend that the May 26, 2006
judgment was voidable as to appellants because the court’s order of severance as to
Florida Day Cruises was not entered until September 14, 2006, which, according to
appellees, was after the court’s plenary jurisdiction had expired. See TEX . R. CIV. P.
329b(e) (providing that a trial court’s plenary power to modify a judgment expires thirty
7
days after any timely-filed motions for new trial are overruled); Hood v. Amarillo Nat’l Bank,
815 S.W.2d 545, 547 (Tex. 1991) (stating that “[a] summary judgment which does not
dispose of all parties and issues in the pending suit is interlocutory and not appealable
unless a severance is ordered.”). However, as appellants seem to have subsequently
recognized, this argument is senseless. The only way the trial court’s plenary jurisdiction
could have expired prior to the entrance of the severance order is if the May 26, 2006
judgment was in fact final and subject to appeal. If, as appellants argue, the May 26, 2006
judgment was interlocutory and not appealable, then the trial court’s plenary jurisdiction did
not expire and the order of severance was valid, rendering the May 26, 2006 judgment final
with respect to appellants. We conclude that the May 26, 2006 judgment became final
upon the trial court’s order of severance on September 14, 2006.11 We therefore have
jurisdiction to consider this appeal.
III. STANDARD OF REVIEW
We review a trial court’s grant or denial of a traditional motion for summary judgment
under a de novo standard of review. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816
n.7 (Tex. 2005) (citing Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n.137
(Tex. 2004)); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.–Corpus Christi 2003, no
pet.); see also Md. Cas. Co. v. S. Tex. Med. Clinics, P.A., No. 13-06-089-CV, 2008 Tex.
App. LEXIS 279, at *9-11 (Tex. App.–Corpus Christi Jan. 10, 2008, pet. filed) (mem. op.).
The function of summary judgment is to eliminate patently unmeritorious claims and
defenses, not to deprive litigants of the right to a trial by jury. Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Alaniz, 105 S.W.3d at 345.
To obtain relief via a traditional motion for summary judgment, the movant must
11
W e note that appellants filed their notice of appeal on August 24, 2006, which was prior to the date
that we consider the trial court’s judgm ent to have becom e final. Appellants’ notice of appeal was therefore
prem aturely filed. However, Texas Rule of Appellate Procedure 27.1(a) provides that “[i]n a civil case, a
prem aturely filed notice of appeal is effective and deem ed filed on the day of, but after, the event that begins
the period for perfecting the appeal.” T EX . R. A PP . P. 27.1(a). Appellants’ notice of appeal is therefore
deem ed to have been filed on Septem ber 14, 2006, after the trial court entered its order of severance with
respect to Florida Day Cruises, Inc.
8
establish that no material fact issue exists and that it is entitled to judgment as a matter of
law. TEX . R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002); Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex. App.–Corpus Christi 2002, pet.
denied). After the movant produces evidence sufficient to show it is entitled to summary
judgment, the non-movant must then present evidence raising a fact issue. See Walker
v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In deciding whether there is a disputed fact
issue that precludes summary judgment, evidence favorable to the non-movant will be
taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)).
Evidence favorable to the movant, however, will not be considered unless it is
uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391
S.W.2d 41, 47 (Tex. 1965). Moreover, every reasonable inference must be indulged in
favor of the non-movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 549.
When both parties move for summary judgment and the trial court grants one
motion and denies the other, the appellate court should review both parties’ summary
judgment evidence and determine all questions presented. See FM Props. Operating Co.
v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Warrantech Corp. v. Steadfast Ins. Co.,
210 S.W.3d 760, 765 (Tex. App.–Fort Worth 2006, no pet.). The reviewing court should
render the judgment that the trial court should have rendered. See FM Props., 22 S.W.3d
at 872; Warrantech, 210 S.W.3d at 765. In reviewing a summary judgment, we consider
all grounds presented to the trial court and preserved on appeal in the interest of judicial
economy. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005) (citing
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003) and
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996)).
IV. CHRISTUS’S COUNTERCLAIM
By their first issue, appellants argue that the trial court erred in granting Christus’s
motion for summary judgment on its counterclaim against Texas Treasure. We agree. As
noted above, the trial court granted Christus’s summary judgment on its counterclaim,
9
finding that Texas Treasure was liable for Lanado’s entire hospital bill based on three
distinct grounds: (1) a valid sworn account without an effective verified denial; (2) Texas
Treasure’s guarantee of payment under the Immigration and Nationality Act; and (3) Texas
Treasure’s duty of paying benefits under the doctrine of maintenance and cure in
conjunction with Lanado’s alleged assignment of benefits to Christus.12
A. Christus’s Suit on a Sworn Account
The essential elements to prove a sworn account are: (1) that there was a sale and
delivery of merchandise or performance of services; (2) that the amount of the account is
just, that is, that the prices were charged in accordance with an agreement or were
customary and reasonable prices; and (3) that the amount is unpaid. Adams v. H & H
Meat Prods., Inc., 41 S.W.3d 762, 773 (Tex. App.–Corpus Christi 2001, no pet.); Worley
v. Butler, 809 S.W.2d 242, 245 (Tex. App.–Corpus Christi 1990, no writ). When a plaintiff
presents prima facie evidence of an account through sworn testimony, the defendant must
file a proper verified denial if it wishes to challenge the validity or amount of the account.
See TEX . R. CIV. P. 185; see also TEX . R. CIV. P. 93 (“A pleading setting up any of the
following matters, unless the truth of such matters appear of record, shall be verified by
affidavit. . . . (10) A denial of an account which is the foundation of the plaintiff’s action, and
supported by affidavit.”).
Appellants argue that the trial court erred in granting Christus’s summary judgment
on sworn account grounds for three reasons: (1) Christus’s suit on a sworn account was
not maintainable as a matter of law; (2) if the suit was properly maintainable as a suit on
a sworn account, appellants contend that their verified denial was effective; and (3) if
appellants’ verified denial was ineffective, appellants contend that they were improperly
denied the opportunity to amend their answer to provide an effective verified denial.
12
On appeal, Christus refers to a docum ent entitled “Standard Term s and Conditions Governing the
Em ploym ent of Filipino Seafarers On Board Ocean Going Vessels,” which included a provision that the
em ployer of an injured or ill seam an shall be liable for the full cost of the seam an’s hospital and m edical
expenses. However, because Christus provided no evidence that these “Standard Term s and Conditions”
were actually applicable to Lanado’s em ploym ent with Texas Treasure, we do not consider this to be a valid
basis upon which Christus’s sum m ary judgm ent m ay have been granted.
10
1. Validity of Christus’s Suit on a Sworn Account as a Matter of Law
Christus produced summary judgment evidence showing that it provided medical
services to Judy Ann Lanado, that the amounts charged were reasonable, and that the
amount is unpaid, thereby presenting prima facie evidence sufficient to sustain a suit on
a sworn account. Nevertheless, appellants claim that Christus’s suit was not maintainable
as a matter of law, for two reasons. First, appellants claim that there must be a sale and
purchase of personal property to sustain a suit on a sworn account, and that there was no
such exchange here. We disagree. Debts incurred as a result of the provision of medical
services may be enforced by a suit on a sworn account. See, e.g., Andrews v. E. Tex.
Med. Ctr., 885 S.W.2d 264, 268 (Tex. App.–Tyler 1994, no writ); Bryant v. Mission Mun.
Hosp., 575 S.W.2d 136, 137 (Tex. Civ. App.–Corpus Christi 1978, no writ); Leyendecker
v. Santa Rosa Med. Ctr., 533 S.W.2d 868, 868-70 (Tex. Civ. App.–Tyler 1976, no writ).
Second, appellants claim that they are “strangers to the account” because there was
no creditor-debtor relationship between appellants and Christus. However, appellants do
not cite any authority indicating that such a relationship is necessary to the maintenance
of a suit on a sworn account. As such, that argument was inadequately briefed and
therefore waived. See TEX . R. APP. P. 38.1(h).
2. Efficacy of Texas Treasure’s Sworn Denial
Appellants next contend that, even if Christus’s suit on a sworn account was
maintainable as a matter of law, summary judgment on that ground was improper because
appellants filed an effective sworn denial. See TEX . R. CIV. P. 185. Texas Treasure’s third
amended original answer to Christus’s counterclaim, which was the live pleading at the
time the trial court considered Christus’s motion for summary judgment, contained an
affidavit executed by Texas Treasure’s trial counsel which read in relevant part the
following:
On this day personally appeared before me, the undersigned notary public,
JAMES F. BUCHANAN, who stated he is the attorney for Intervenors [Texas
11
Treasure], and that he has read Paragraph I.A. Verified Denial of
Intervenors[’] Third Amended Answer in the above styled and numbered
cause; and that every statement therein is true and correct within his
personal knowledge or upon information and belief.
(Emphasis added.)
The trial court, in awarding summary judgment on sworn account grounds to
Christus, found this sworn denial to be ineffective. We agree that Texas Treasure’s live
sworn denial was ineffective. An affidavit which does not positively and unqualifiedly
represent the facts as disclosed in the affidavit to be true and within the affiant’s personal
knowledge is legally invalid. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994)
(emphasis added); see Fed. Fin. Co. v. Delgado, 1 S.W.3d 181, 184 (Tex. App.–Corpus
Christi 1999, no pet.). In the context of a suit on a sworn account, courts have held the
verified denial required by Rule 185 must strictly comply with the requirements of Rule 93
regarding verified pleas. See Brown v. Starrett, 684 S.W.2d 145, 147 (Tex. App.–Corpus
Christi 1984, no writ); Edinburg Meat Prods. Co. v. Vernon Co., 535 S.W.2d 432, 435 (Tex.
Civ. App.–Corpus Christi 1976, no writ). Rule 93, which sets forth requirements for the
verification of various pleas, specifically permits some verified pleadings to be based on
“information and belief.” See, e.g., TEX . R. CIV. P. 93(8) (denial of the genuineness of the
indorsement or assignment of a written instrument); 93(13) (denial of pleadings in appeals
to the Texas Workers’ Compensation Commission); 93(15) (denial of allegations in suits
against automobile insurance companies). However, Rule 93(10), applicable to the denial
of a sworn account, does not permit verification based on “information and belief”; rather,
it requires verification unqualifiedly based on the affiant’s personal knowledge. TEX . R. CIV.
P. 93(10); see Gayne v. Dual-Air, Inc., 600 S.W.2d 373, 374-75 (Tex. Civ. App.–Houston
[14th Dist.] 1980, no writ) (finding an affiant’s denial of a sworn account “to the best of his
knowledge” to be ineffective). The trial court did not err in ruling that the sworn denial
contained in Texas Treasure’s third amended answer was ineffective.
3. Trial Court’s Denial of Texas Treasure’s Motion for Leave to File Fourth
Amended Answer to Christus’s Counterclaim
12
Finally, appellants argue that, even if their live sworn denial was ineffective, the trial
court erred in denying them leave to file a fourth amended answer to Christus’s
counterclaim to contain a properly verified denial. We agree. A trial court has no
discretion to refuse a party’s request for leave to amend its pleadings unless: (1) the
opposing party presents evidence of surprise or prejudice; or (2) the amendment asserts
a new cause of action or defense, and thus is prejudicial on its face, and the opposing
party objects to the amendment. Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938,
939 (Tex. 1990); see TEX . R. CIV. P. 63, 66.
Christus asserts that “granting Texas Treasure leave to cure the defect in its verified
denial would have been patently prejudicial to Christus by depriving it of the presumptive
validity of (and immediate recovery on) its suit on sworn account and by requiring it to
litigate the merits of that claim at considerable additional expense.” Christus also claims
that Texas Treasure should not be afforded more than one opportunity to correct the error
in its pleadings, and that for the trial court to do so would have given Texas Treasure “a
second bite at the apple.”13 These arguments, however persuasive, do not constitute
“evidence of surprise or prejudice.” See Greenhalgh, 787 S.W.2d at 939, 941 (finding that
trial court did not abuse its discretion by granting plaintiff’s motion to amend pleading to
increase amount of damages requested, because defendant, although claiming to be
“prejudiced,” did not show any evidence of prejudice or surprise). Moreover, the amended
pleading that Texas Treasure sought leave to file did not include any new causes of action
or defenses; rather, it was seeking to correct a technical error in the wording of its verified
denial to the sworn account claim.
We recognize that a litigant must not be given unlimited opportunities to correct an
error in its pleadings; however, we are unwilling to create an exception to the rule that
surprise or prejudice to the non-moving party must be shown for a trial court to deny the
13
In support of this argum ent, Christus notes that Texas Treasure was previously perm itted to file a
second am ended answer to Christus’s counterclaim for the express purpose of adding an effective verified
denial. After Christus am ended its counterclaim , however, Texas Treasure responded by filing a third
am ended answer which contained the defective denial.
13
moving party an opportunity to amend. See Greenhalgh, 787 S.W.2d at 939. We
therefore conclude that the trial court abused its discretion in denying Texas Treasure’s
motion for leave to file its fourth amended answer to Christus’s counterclaim to include a
properly verified denial.
Had the trial court permitted Texas Treasure to file a fourth amended answer to
Christus’s counterclaim to include an effective verified denial, Christus’s suit on a sworn
account would have been put at issue and summary judgment on those grounds would
have been inappropriate. We find, therefore, that the trial court erred in granting Christus’s
summary judgment on its counterclaim on the basis of a valid suit on a sworn account
without effective verified denial. We will now consider whether the trial court was justified
in granting Christus’s motion for summary judgment on any of the other specified grounds.
B. Guarantee of Payment
The trial court also awarded Christus summary judgment based on the guarantee
of payment signed by Texas Treasure’s human resource assistant, Paula Coots. It is
undisputed that Coots was properly acting on Texas Treasure’s behalf when she signed
a document entitled “Guarantee of Payment (Under Section 253 of the Immigration and
Nationality Act)” (hereinafter the “Guarantee”) guaranteeing “to pay any and all expenses
incurred or to be incurred for the hospitalization, care, and treatment, and for burial in the
event of death, of the said alien crewman [Lanado].”
Appellants challenge the trial court’s ruling by first claiming that the Immigration and
Nationality Act (the “Act”), under authority of which the Guarantee was signed, does not
explicitly or implicitly create a private cause of action. Appellants are correct that the Act
does not explicitly provide for a private cause of action to enforce a guarantee of payment
executed pursuant to the Act. See 8 U.S.C. § 1283.14 However, Christus did not seek to
14
Section 1283 of Title 8 of the United States Code provides:
§ 1283. Hospital treatm ent of alien crewm en afflicted with certain diseases.
An alien crewm an, including an alien crewm an ineligible for a conditional perm it to land under
section 1282(a) of this title, who is found on arrival in a port of the United States to be
14
recover payment from Texas Treasure on the basis of a federal cause of action; rather, it
merely sought to enforce the Guarantee as a contract. We agree with Christus that “[t]he
trial court’s references to the [Act] are merely intended to support the applicability and
enforceability” of the Guarantee and are not intended to indicate that Christus’s cause of
action arose from, or was authorized by, the Act.15 We do not, therefore, reach the issue
of whether the Act implicitly provides a private right of action to enforce a guarantee of
payment executed pursuant to the Act.
Appellants next claim that Christus did not have standing to enforce the Guarantee
because it was not a third-party beneficiary of the Guarantee. We agree. There is a legal
presumption against, not in favor of, third-party beneficiary agreements, and absent any
clear indication in the contract that the parties intended to confer a direct benefit to the third
party, the third party may not maintain an action as a third-party beneficiary. City of Alton
v. Sharyland Water Supply Corp., 145 S.W.3d 673, 682 (Tex. App.–Corpus Christi 2004,
pet. denied) (citing MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652
(Tex. 1999)). The intention to contract or confer a direct benefit to a third party must be
afflicted with any of the disabilities or diseases m entioned in section 1285 of this title, shall
be placed in a hospital designated by the im m igration officer in charge at the port of arrival
and treated, all expenses connected therewith, including burial in the event of death, to be
borne by the owner, agent, consignee, com m anding officer, or m aster of the vessel or
aircraft, and not to be deducted from the crewm an’s wages. No such vessel or aircraft shall
be granted clearance until such expenses are paid, or their paym ent appropriately
guaranteed, and the collector of custom s is so notified by the im m igration officer in charge.
An alien crewm an suspected of being afflicted with any such disability or disease m ay be
rem oved from the vessel or aircraft on which he arrived to an im m igration station, or other
appropriate place, for such observation as will enable the exam ining surgeons to determ ine
definitely whether or not he is so afflicted, all expenses connected therewith to be borne in
the m anner hereinbefore prescribed. In cases in which it appears to the satisfaction of the
im m igration officer in charge that it will not be possible within a reasonable tim e to effect a
cure, the return of the alien crewm an shall be enforced on, or at the expense of, the
transportation line on which he cam e, upon such conditions as the Attorney General shall
prescribe, to insure that the alien shall be properly cared for and protected, and that the
spread of contagion shall be guarded against.
8 U.S.C. § 1283.
15
W e further note that section 253 of the Im m igration and Nationality Act (8 U.S.C. § 1283) does not
appear to be applicable to Judy Ann Lanado’s injuries. As discussed above, that section applies only to alien
crewm en who are “found on arrival in a port of the United States to be afflicted with any of the disabilities or
diseases m entioned in section 1285. Id. The conditions m entioned in section 1285 are “feeble-m indedness,
insanity, epilepsy, tuberculosis in any form , leprosy, or any dangerous contagious disease.” 8 U.S.C. § 1285.
It is undisputed that Lanado suffered from none of these conditions.
15
clearly and fully spelled out or enforcement by the third party must be denied. MCI
Telecomms. Corp., 995 S.W.2d at 651. Moreover, the burden is on the third party seeking
to enforce the agreement to show that the agreement was intended for that party’s direct
benefit. See German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230
(1912).
The Guarantee did not mention Christus or any other health care provider by name;
rather, it was a form required to be filed with the United States Department of Justice under
regulations promulgated by the agency then known as the Immigration and Naturalization
Service. See 8 C.F.R. § 253.1(a) (providing in part that “[t]he guarantee of payment for
medical and other related expenses required by section 253 of the Act [8 U.S.C. § 1283]
shall be executed by the owner, agent, consignee, commanding officer or master on Form
I-510 [Guarantee of Payment].”). Christus summarily states that it is “a primary (and, at the
very least, a third-party) beneficiary of the Guarantee,” but Christus does not assert that
the Guarantee itself contained a “clear indication” or “clearly and fully spelled out” that
Christus was intended to be such a beneficiary. See City of Alton, 145 S.W.3d at 682; MCI
Telecomms. Corp., 995 S.W.2d at 651. Christus therefore did not meet its burden in
showing that the Guarantee was intended for its benefit, and so it did not have standing
to enforce the Guarantee as a third-party beneficiary.
We conclude that the trial court erred in granting Christus’s summary judgment on
its counterclaim on the basis of the Guarantee of Payment signed by Coots. We now turn
to the final basis for Christus’s summary judgment on its counterclaim as identified by the
trial court.
C. Texas Treasure’s Duty of Maintenance and Cure
The third independent ground upon which the trial court granted Christus’s summary
judgment was Texas Treasure’s duty of maintenance and cure under general maritime law
in conjunction with the assignment of benefits executed by Lanado upon her admission to
16
Christus.16 The doctrine of maintenance and cure, applicable in admiralty cases, provides
that a seaman who is injured or becomes ill while in the service of a ship is entitled to food
and lodging (“maintenance”) and medical services (“cure”) from the shipowner. Vaughn
v. Atkinson, 369 U.S. 527, 531 (1962); Maritime Overseas Corp. v. Waiters, 923 S.W.2d
36, 40 (Tex. App.–Houston [1st Dist.] 1995), modified on other grounds and aff’d, 917
S.W.2d 17 (Tex. 1996). A shipowner must pay an injured or ill seaman 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 (5th Cir. 1995).
The United States Supreme Court has summarized the policies underlying the duty as:
[T]he protection of seamen, who, as a class, are poor, friendless and
improvident, from the hazards of illness and abandonment while ill in foreign
ports; the inducement to masters and owners to protect the safety and health
of seamen while in service; the maintenance of a merchant marine for the
commercial service and maritime defense of the nation by inducing men to
accept employment in an arduous and perilous service.
Vaughan, 369 U.S. at 531 (citing Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528 (1938)).
Appellants do not dispute that Lanado is a “seaman” entitled to maintenance and cure.
Appellants do assert, however, that they raised material issues of fact with respect to the
extent of their liability under this doctrine, which should have precluded an award of
summary judgment to Christus. Specifically, appellants claim that there are issues of
material fact with respect to: (1) whether Lanado reached “maximum cure” prior to the time
she was discharged from Christus; and (2) whether the charges incurred by Lanado at
Christus were reasonable and necessary.
1. Maximum Cure
The doctrine of maintenance and cure is limited in that the shipowner is only
16
Appellants claim that the assignm ent of benefits executed by Lanado upon her adm ission to
Christus was ineffective because “[p]ersonal injury claim s are not assignable in adm iralty cases.” W ithout
reaching the m erits of this argum ent, we note that appellants failed to assert this argum ent in its response to
Christus’s m otion for sum m ary judgm ent; rather, it was asserted for the first tim e in Texas Treasure’s m otion
for new trial. Therefore, the argum ent has been waived. See Garrod Invs., Inc. v. Schlegel, 139 S.W .3d 759,
765 (Tex. App.–Corpus Christi 2006, no pet.) (stating that “[a]ny issue which the non-m ovant claim s would
justify denying sum m ary judgm ent m ust be included in its response” to the m otion for sum m ary judgm ent);
see also T EX . R. A PP . P. 33.1(a)(1).
17
responsible for an injured seaman’s medical expenses until such time as the seaman
obtains “maximum cure.” Royal Ins. Co. of Am. v. Sphere Drake Underwriting Mgmt., Ltd.,
997 S.W.2d 432 (Tex. App.–Beaumont 1999, pet. denied). Maximum cure is defined as
that point where no further treatment will improve the condition. Waiters, 923 S.W.2d at
40. Moreover, in the case of an incapacitated seaman, maximum cure does not occur until
such time as the incapacity is declared to be permanent. Vella v. Ford Motor Co., 421
U.S. 1, 4 (1975).
To support their contention that an issue of material fact was raised with regard to
maximum cure, appellants cite an affidavit executed by Joseph Varon, M.D. dated
November 22, 2005, which was included as part of Texas Treasure’s summary judgment
evidence. This affidavit stated in relevant part as follows: “[M]ore likely than not after
November 11, 2002, when Judy Lanado reached maximum improvement of her
neurological condition, that she no longer required the acute care medicine services at
[Christus].”
Without determining whether the content of the Varon affidavit is sufficient to raise
an issue of material fact with respect to maximum cure, we note that the date upon which
maximum cure becomes effective is not the date in fact when no further treatment would
have improved the condition; rather, it is the date on which the medical diagnosis of
maximum cure is made, even if that diagnosis is made after the fact. Vella, 421 U.S. at
4. In Vella, the United States Supreme Court held that, although a seaman’s injury was
in fact permanent immediately after the accident, the shipowner owed maintenance and
cure to the seaman up until the date when medical diagnosis of the immediate, permanent
incapacity was first made by the shipowner’s medical witness. Id. at 5, n.4. Here, the
purported diagnosis of permanent incapacity was first made by Varon over two years after
Lanado was discharged from Christus. Thus, even if Varon’s affidavit were taken as true,
and even if it were to suffice to show that maximum cure was reached, Texas Treasure
would still have owed maintenance and cure to Lanado throughout her entire stay at
18
Christus. Therefore, appellants have not established that there is an issue of material fact
in dispute with respect to maximum cure.
2. Reasonableness of Medical Charges
Another limitation to the duty of maintenance and cure is that a shipowner is liable
only insofar as the medical expenses of an injured seaman are reasonable and necessary.
See Waiters, 917 S.W.2d at 18; see also Socony-Vacuum Oil Co. v. Aderhold, 240 S.W.2d
751, 755 (Tex. 1951) (stating that “[i]n admiralty, if a defendant believes that amounts
actually expended for maintenance and cure are unreasonable, he may offer rebuttal
proof.”). Appellants assert that their summary judgment evidence raised material issues
of fact with respect to whether the charges incurred by Lanado at Christus were in fact
reasonable and necessary. We agree.
The summary judgment evidence produced by Christus included an affidavit signed
on August 31, 2005 by William Burgin, M.D. This affidavit stated in relevant part:
I was the attending physician for Ms. Lanado for the majority of her hospital
admission. As such, I was one of the physicians in charge of her medical
care for this hospital admission. I have personal knowledge of the medical
and hospital care which was needed by Ms. Lanado, as well as the medical
and hospital care which was provided to Ms. Lanado by the doctors, nurses,
and other healthcare providers at [Christus] from August 21, 2002 through
October 1, 2003. The medical and hospital services provided to Ms. Lanado
from August 21, 2002 through October 1, 2003, as reflected in her medical
records, were usual, customary, reasonable, and necessary at the time and
place the services were rendered, based on Ms. Lanado’s health condition
and diagnoses at the time.
Christus also provided an affidavit by Margaret Dippel, Director of Patient Financial
Services at Christus, which accompanied Lanado’s medical records at Christus detailing
the $1,089,959.82 bill. The affidavit stated in relevant part: “The prices charged, as
reflected in the account, are in accordance with the agreement between Judy A. Lanado
and [Christus] and are the usual, customary and reasonable price for the services
rendered.”
In response, Texas Treasure provided summary judgment evidence in the form of
19
affidavits by Varon, as noted above, and by Harvey Cooper. Varon’s affidavit stated in
relevant part: “It is clear from my review of the records, that Ms. Lanado suffered brain
damage unnecessarily, due to negligence, gross negligence and malpractice of her
healthcare providers . . . .” Cooper’s affidavit stated in relevant part:
I am familiar with the Affidavit of Margaret Dippel and the invoice of [Christus]
for hospital services rendered for Judy Lanado. In my experience based on
my 19 years as an auditor of medical invoices, the prices charged by
[Christus] are not usual, customary and reasonable prices for the services
rendered. . . . In addition, I have reviewed the Affidavit of Joseph Veron, M.D.
dated November 22, 2005, with respect to Judy Lanado, and Dr. Varon’s
opinion that she reached the maximum medical cure on November 11, 2002,
and thereafter, no longer needed the level of medical services available to
be provided at [Christus]. It is therefore my opinion that the charges made
by [Christus] after November 11, 2002 were not reasonable or necessary.
Taking Varon’s and Cooper’s allegations as true, see Nixon, 690 S.W.2d at 548-49,
we conclude that appellants raised a genuine issue of material fact with regard to the
reasonableness and necessity of the medical charges incurred by Judy Ann Lanado at
Christus. Because there are issues of material fact in dispute with regard to the extent of
appellants’ liability under the maintenance and cure doctrine, the trial court erred in
granting Christus’s motion for summary judgment on its counterclaim on this ground. See
TEX . R. CIV. P. 166a(c); Mowbray, 76 S.W.3d at 690; Sw. Elec. Power Co., 73 S.W.3d at
215.
The trial court erred in granting summary judgment to Christus on all three of the
grounds specified in Christus’s counterclaim against Texas Treasure. Appellants’ first issue
is therefore sustained.
V. TEXAS TREASURE’S PLEA IN INTERVENTION 17
By their second issue, appellants argue that the trial court erred in denying their
motion for summary judgment, and in granting Christus’s motion for summary judgment,
17
Although the judgm ent on appeal here did not explicitly incorporate the trial court’s prior orders
denying Texas Treasure’s m otion for sum m ary judgm ent and granting Christus’s m otion for sum m ary
judgm ent with respect to the claim s raised in Texas Treasure’s plea in intervention, we note that the final
judgm ent did state that it was “final, disposes of all claim s and parties, and is appealable.”
20
with respect to the claims raised in Texas Treasure’s plea in intervention.18 In its amended
plea in intervention, Texas Treasure claimed that it was entitled to a declaratory judgment
that it is equitably subrogated to the Lanados’ rights under their settlement agreement with
Christus, and that it was entitled as a matter of law to a declaratory judgment stating that
it is not responsible for paying Lanado’s hospital bill.19
A. Equitable Subrogation
Equitable subrogation “is a legal fiction” whereby “an obligation, extinguished by a
payment made by a third person, is treated as still subsisting for the benefit of this third
person, so that by means of it one creditor is substituted to the rights, remedies, and
securities of another.” First Nat’l Bank of Houston v. Ackerman, 8 S.W. 45, 47 (Tex. 1888);
see also Murray v. Cadle Co., No. 05-06-01481-CV, 2008 Tex. App. LEXIS 1662, at *8
(Tex. App.–Dallas Mar. 6, 2008, no pet. h.). Equitable subrogation, unlike contractual
subrogation, “does not depend on a contract but arises in every instance in which one
person, not acting voluntarily, has paid a debt for which another was primarily liable and
which in equity should have been paid by the latter.” Mid-Continent Ins. Co. v. Liberty Mut.
Ins. Co., 236 S.W.3d 765, 774 (Tex. 2007). The rationale for this rule is that the insured
would otherwise recover twice, a result that “the law refuses to sanction.” Ortiz v. Great
S. Fire & Cas. Ins. Co., 587 S.W.2d 818, 820 (Tex. Civ. App.–Amarillo 1979), rev’d on
other grounds, 597 S.W.2d 342 (Tex. 1980). The burden is on the party claiming equitable
18
Appellants and Christus agree that while general m aritim e law governs the rights of Lanado with
respect to her em ployer’s duty of m aintenance and cure, Texas law governs the question of whether
appellants have a right of equitable subrogation or indem nity against Lanado or Christus. See Gauthier v.
Crosby Marine Serv., Inc., 752 F.2d 1085, 1090 (5th Cir. 1985) (stating that “a shipowner’s right to indem nity
against a land-locked physician who negligently treats a patient injured at sea is governed by state law”).
19
Appellants also asserted that they are entitled to sum m ary judgm ent on their plea in intervention
pursuant to the “circuity of action” doctrine. This doctrine provides that a plaintiff’s cause of action will be
extinguished when, as the result of indem nification obligations or settlem ent agreem ents between the parties,
a plaintiff would end up indem nifying another party for its own original claim . Refinery Holding Co., L.P. v.
TRMI Holdings, Inc. (In re El Paso Refinery, L.P.), 302 F.3d 343, 349-350 (5th Cir. 2002) (citing Phillips Pipe
Line Co. v. McKown, 580 S.W .2d 4335, 440 (Tex. Civ. App.–Tyler 1979, writ ref’d n.r.e.)).
Both appellants and Christus agree, however, that this doctrine applies if and only if Texas Treasure
had a right of equitable subrogation with respect to the Lanados’ rights under their settlem ent agreem ent with
Christus. Because we find that Texas Treasure had no such right of equitable subrogation, as discussed
herein, we conclude that the circuity of action doctrine does not apply.
21
subrogation to establish he is entitled to it. Monk v. Dallas Brake & Clutch Serv. Co., 697
S.W.2d 780, 782 (Tex. App.–Dallas 1985, writ ref’d n.r.e.).
In the instant case, the settlement agreement executed by the Lanados and
Christus provided specifically that Lanado’s hospital bill remained outstanding.20 Moreover,
the agreement provided that the Lanados assigned to Christus her rights under the
doctrine of maintenance and cure.21 As such, there is no risk that, absent action by the trial
court, the Lanados would recover twice. We therefore conclude that appellants did not
establish that they are entitled to be equitably subrogated to the Lanados’ rights under the
settlement agreement. The trial court did not err in denying Texas Treasure’s motion for
summary judgment or granting Christus’s motion for summary judgment on this basis.
B. Declaratory Judgment
In response to Texas Treasure’s petition for declaratory judgment, Christus
contended that Texas Treasure is responsible for Lanado’s entire hospital bill, and is not
entitled to indemnification or reimbursement in the case of any intervening negligence on
the part of Christus. In support of this argument, Christus relies on Houston Belt &
Terminal Railway Co. v. Burmester, 309 S.W.2d 271 (Tex. Civ. App.–Houston 1957, writ
ref’d n.r.e.). In that case, Burmester, an alien seaman, was injured on shore when the
vehicle he was riding in collided with an engine owned and operated by a third party. Id.
at 272. Burmester’s employer paid his medical expenses pursuant to the doctrine of
20
Specifically, the agreem ent stated in part as follows:
The parties agree that this acknowledgm ent, satisfaction and assignm ent as full satisfaction
of the outstanding m edical and hospital expenses Judy Ann Lanado incurred while a patient
at [Christus] is not [to] be construed as forgiveness of the said hospital bill or that any am ount
paid to Judy Ann Lanado includes the paym ent of the said hospital bill. [Christus] is agreeing
to stand in the place of Judy Ann Lanado by way of assignm ent and look to her Em ployer(s)
for satisfaction of the hospital bill.
21
Specifically, the agreem ent stated in part as follows:
. . . I, Jasper Lanado, individually, and on behalf of Judy Ann Lanado, as her lawful guardian,
do hereby assign, grant and convey to [Christus] any and all claim s, benefits and any rights,
title and interest in those claim s and benefits, Judy Ann Lanado had, has, or m ay have as
beneficiary against her Em ployer(s) for the m edical and hospital expenses she incurred while
a patient at [Christus]. This assignm ent conveys to [Christus] all the rights and powers of
collection granted to Judy A. Lanado under the m aritim e laws of the United States of Am erica
and/or the laws of the State of Texas.
22
maintenance and cure. Id. at 277. When Burmester filed a suit for negligence against the
third party that owned and operated the engine, his employer intervened, seeking to
recover its maintenance and cure payments from the third party. Id. Our sister court,
recognizing that “the laws of the state in which the injury occurred [are] applicable,” found
that Burmester’s employer had no right of indemnity with respect to Burmester’s rights.
Christus urges us to follow Burmester and conclude that appellants are not entitled
to any indemnification or reimbursement for that portion of Lanado’s hospital expenses that
may have been the result of Christus’s negligence. We are not inclined to do so. Although
neither party was able to direct us to any Texas case of more recent vintage than the half-
century-old Burmester, the federal Fifth Circuit Court of Appeals has repeatedly since held
that a shipowner required to pay maintenance and cure may recover those payments from
a third party who caused the injury, even when the employee has already settled with that
third party. See, e.g., Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1017 (5th Cir.
1994) (stating that “an employer’s right to recovery over for maintenance and cure is not
negated by a settlement by the injured employee with the third-party tortfeasor.”); Adams
v. Texaco, Inc., 640 F.2d 618, 620 (5th Cir. 1981) (stating that the underlying rationale for
granting the shipowner indemnity “is that the burden of maintenance and cure should be
borne by the tortfeasor, not an innocent shipowner.”); Savoie v. Lafourche Boat Rentals,
Inc., 627 F.2d 722, 722 (5th Cir. 1980) (stating that “a seaman’s innocent employer is
entitled to reimbursement from a third party for maintenance and cure payments made
necessary by the third party’s negligence.”); Tri-State Oil Tool Indus., Inc. v. Delta Marine
Drilling Co., 410 F.2d 178, 186 (5th Cir. 1969) (stating that “[i]t would be wrong to assess
damages against a non-negligent or passively negligent shipowner for loss or injury
suffered solely as a result of active negligence of another party, regardless of the absence
of a contractual relationship between the parties.”). We conclude that, although it is
undisputed that appellants remain liable for Lanado’s hospital expenses under the doctrine
of maintenance and cure, they are entitled to declaratory judgment that they are not
23
responsible for paying the amount, if any, of the hospital bill that was attributable to
Christus’s negligence. See, e.g., Bertram, 35 F.3d at 1017; Adams, 640 F.2d at 620;
Savoie, 627 F.2d at 722 Tri-State Oil Tool Indus., Inc., 410 F.2d at 186. We remand to the
trial court to determine the questions of: (1) whether Christus was in fact negligent; and (2)
how much, if any, of Lanado’s hospital expenses were attributable to such negligence.
Because there are issues of material fact in dispute with respect to the extent of
appellants’ liability, the trial court should have denied both Christus’s and Texas Treasure’s
motions for summary judgment with respect to Texas Treasure’s petition for declaratory
judgment.22 See TEX . R. CIV. P. 166a(c); FM Props., 22 S.W.3d at 872; Warrantech, 210
S.W.3d at 765. Appellants’ second issue is therefore sustained in part and overruled in
part.
VI. APPELLANTS ’ DUE PROCESS CLAIMS
By their third issue, appellants contend that the trial court denied their constitutional
due process rights: (1) by denying their motion for leave to file a fourth amended answer
to Christus’s counterclaim to include an effective verified denial; and (2) by only partially
granting their motion for leave to file a response to Christus’s unserved Supplemental
Motion for Summary Judgment. We disagree.
A. Motion for Leave to File Fourth Amended Answer to Christus’s Counterclaim
As discussed above, the trial court denied the appellants’ motion for leave to file a
fourth amended answer to Christus’s counterclaim to include a properly verified denial of
Christus’s suit on a sworn account. Appellants cite In re Marriage of Richards, 991 S.W.2d
32, 37-38 (Tex. App.–Amarillo 1999, pet. dism’d), for the proposition that the trial court’s
ruling deprived them of their right to due process of law. In Richards, the Amarillo Court
22
Appellants state in their reply brief as follows: “Appellants m ay not ultim ately recover 100% of the
subrogation claim , but they should not be foreclosed from doing so as a m atter of law. The judgm ent of the
trial court should be reversed and the case rem anded for trial.” W ith this statem ent, appellants appear to
recognize that, even if the trial court had acknowledged their right to be equitably subrogated to the Lanados’
recovery from Christus, this would not extinguish all disputes as to m aterial fact issues so as to warrant the
granting of Texas Treasure’s sum m ary judgm ent.
24
of Appeals held that the trial court’s putative attempt to decide factual issues without giving
one party the opportunity to respond would violate due process. Id. However, in denying
Texas Treasure’s motion for leave to file a fourth amended answer, the trial court was not
deciding any particular fact issue; rather, it was exercising its discretion to determine
whether Texas Treasure should be given another opportunity to correct its pleadings.
Although, as discussed above, we conclude that the trial court erred in denying Texas
Treasure this opportunity, appellants do not cite any authority indicating that such an error
in discretion would deprive appellants of their constitutional due process rights. We find
that this argument has been inadequately briefed and therefore waived. See TEX . R. APP.
P. 38.1(h).
B. Motion for Leave to Respond to Christus’s Unserved Supplemental Motion for
Summary Judgment
Appellants also argue that the trial court deprived them of their due process rights
by only partially granting, in the May 26, 2006 final judgment, Texas Treasure’s motion for
leave to file a response to Christus’s unserved Supplemental Motion for Summary
Judgment. To support their argument that the trial court “fail[ed] to allow [Texas Treasure]
a meaningful opportunity to reply,” the appellants point to two “new claims” which they
contend were first raised in Christus’s Supplemental Motion for Summary Judgment.
First, appellants assert that the claim regarding Lanado’s alleged assignment of
benefits to Christus was raised for the first time in Christus’s Supplemental Motion for
Summary Judgment and that the lack of an opportunity for appellants to respond to this
claim constituted a deprivation of their due process rights. However, the record reflects
that Christus asserted this claim previously in their second amended counterclaim.
Moreover, the document allegedly assigning benefits to Christus had been included as an
exhibit in Christus’s prior motion for summary judgment on Texas Treasure’s plea in
intervention. Therefore, it was not a violation of appellants’ due process rights for the trial
court to have denied their request for leave to file a response to this claim, as appellants
25
were able to so respond earlier in the proceedings but chose not to.23
Second, appellants contend that Christus’s Supplemental Motion for Summary
Judgment included an affidavit regarding attorney’s fees signed by Christus’s trial counsel
John S. Langley, which did not appear in Christus’s prior motions for summary judgment.
While it is true that the Supplemental Motion for Summary Judgment included this new
affidavit evidence, the trial court specifically granted Texas Treasure the opportunity to
respond with respect to the attorney’s fees issue and did not rule on that issue until after
considering Texas Treasure’s response. We therefore conclude that any error committed
by the trial court in denying Texas Treasure the opportunity to respond to Christus’s
Supplemental Motion for Summary Judgment was harmless error. See TEX . R. APP. P.
44.1. Appellants’ third issue is overruled.
VII. CONCLUSION
We affirm that portion of the trial court’s judgment denying Texas Treasure’s motion
for summary judgment on its plea in intervention. We reverse that portion of the trial
court’s judgment granting Christus’s motions for summary judgment on its counterclaim
and on Texas Treasure’s plea in intervention, and we remand the cause for further
proceedings consistent with this opinion.
_______________________
DORI CONTRERAS GARZA,
Justice
Opinion delivered and filed
this the 17th day of April, 2008.
23
As discussed above, the trial court also denied Texas Treasure’s m otion for sanctions stem m ing
from the fact that it was not served with Christus’s Supplem ental Motion for Sum m ary Judgm ent. However,
appellants do not challenge this ruling in their appeal; therefore, we do not address the issue here. See T EX .
R. A PP . P. 47.1; Martinez v. El Paso County, 218 S.W .3d 841, 844 (Tex. App.–El Paso 2007, pet. dism ’d)
(“W hen reviewing a civil m atter, an appellate court has no discretion to consider an issue not raised in the
appellant’s brief. . .”).
26