Diamond Offshore Drilling, Inc. and Diamond Rig Investments LTD v. William Black

Reversed and Rendered in Part, Reversed and Remanded in Part, and
Majority and Concurring Opinions filed June 14, 2022.

In The

Fourteenth Court of Appeals

NO. 14-19-00905-CV

DIAMOND OFFSHORE DRILLING, INC. AND DIAMOND RIG
INVESTMENTS LTD., Appellants
V.

WILLIAM BLACK, Appellee

On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2015-74728

MAJORITY OPINION

Appellee William Black was injured while working as a mechanic on board
a mobile offshore drilling unit docked in Spain. Black sued appellants Diamond
Offshore Drilling, Inc. (“Diamond Drilling”) and Diamond Rig Investments
Limited (“Diamond Rig”) (together, “Appellants”) for damages stemming from the
incident.
 The parties proceeded to trial and the jury returned a verdict in Black’s
favor, finding that both Appellants were negligent with respect to the incident. The
trial court signed a final judgment awarding Black $2.2 million in damages.

On appeal, Appellants challenge (1) the wording of the sole jury question on
liability; (2) the legal and evidentiary bases for liability with respect to each
Appellant; and (3) the sufficiency of the evidence supporting the damages assessed
for Black’s future medical expenses. For the reasons below, we reverse the trial
court’s judgment, render judgment in part, and remand the case in part for further
proceedings in accordance with this court’s opinion.

BACKGROUND

Facts

Black is a citizen and resident of the United Kingdom. Black was injured on
January 2, 2015, while working as a mechanic on board the Ocean Valiant, a
mobile offshore drilling unit. As Black was working on a piece of equipment
located below knee level, he sat on a bucket containing a caustic cleaning chemical
called “AlfaNeutra.” The bucket’s lid was not completely fastened and, when
Black sat down, the AlfaNeutra leaked out and soaked through Black’s clothes.
Shortly after, Black started to feel a burning pain on his right buttock.

Black initially was treated on the ship by Daryl Tankersley, a safety
department representative. Black then was transported to a local hospital, where
his wound was dressed. Black returned to the ship the same day and continued
working.

Over the next several days, Black’s pain continued to worsen. Black
returned home to the United Kingdom and visited his local doctor. Black’s injury
was diagnosed as a third-degree chemical burn and he was scheduled for a skin

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graft the following day. Black remained in the hospital for a week following his
surgery. Approximately five months later, Black’s employment was terminated as
part of a planned reduction-in-force.

As relevant to this appeal, we provide a brief overview of several Diamond
entities involved in the facts and circumstances giving rise to this case:

• In January 2008, Black signed a written employment agreement with
Diamond Offshore Drilling (Bermuda) Limited (“Diamond
Bermuda”). This agreement required Black to bring any claims
against Diamond Bermuda “in the courts of Bermuda.”
• Diamond Bermuda is an “employment subsidiary” of parent
corporation Diamond Drilling. Diamond Bermuda employs third-
country nationals like Black.
• Diamond Offshore Services Limited is another “employment
subsidiary” of parent corporation Diamond Drilling. Diamond
Offshore Services Limited employs United States citizens.
• Diamond Drilling maintains its office in Houston, Texas and has no
employees.
• At the time of the incident, Diamond Rig owned the Ocean Valiant.
• Diamond Rig is a wholly-owned subsidiary of Diamond Drilling.
Like Diamond Drilling, Diamond Rig has no employees.
• The seamen working on the Ocean Valiant at the time of Black’s
injury had employment agreements with Diamond Bermuda and
Diamond Offshore Services Limited.

Legal Proceedings

In December 2015, Black sued Diamond Drilling and two other Diamond
entities,1 asserting claims under the Jones Act, the general maritime law of the
United States, and the laws of the United Kingdom. In his first amended petition,
1
Specifically, Black also asserted claims against Diamond Offshore Drilling, Limited
and Diamond Offshore General Company. Diamond Drilling is the parent corporation of both
entities.

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Black added Diamond Rig and Diamond Bermuda as defendants.

The defendants moved to dismiss Black’s suit based on the forum selection
clause in his employment agreement with Diamond Bermuda and the trial court
granted the defendants’ motion. This court reversed and remanded, holding that
the non-signatory defendants — i.e., all defendants other than Diamond Bermuda
— were “not parties to or otherwise within the scope” of the employment
agreement, that Black’s claims against the non-signatory defendants “do not arise
from the Agreement,” and those claims are based on statute and common law. See
Black v. Diamond Offshore Drilling, Inc., 551 S.W.3d 346, 353, 355 (Tex. App.—
Houston [14th Dist.] 2018, no pet.).

On remand, the defendants filed two motions for summary judgment. In
their first motion, the defendants requested that the trial court dismiss Black’s
claims against Diamond Drilling and the two other Diamond Offshore entities “as
they neither employed [Black] . . . nor owned the rig to which he was assigned.”
In their second motion, the defendants sought the dismissal of Black’s Jones Act
and general maritime law claims. The trial court denied both motions.

The parties proceeded to a four-day jury trial. Before closing arguments, the
trial court granted a directed verdict on Black’s Jones Act claim. The jury returned
a verdict finding that Diamond Drilling, Diamond Rig, and Black were negligent
with respect to the incident. The jury apportioned liability as follows: 52% to
Diamond Drilling; 28% to Diamond Rig; and 20% to Black. The jury assessed
$2.75 million in damages. The trial court signed a final judgment on August 20,
2019, awarding Black $2.2 million in damages.

Appellants timely appealed.

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 ANALYSIS

Appellants raise three issues on appeal and contend that (1) jury charge
Question No. 1 submitted an immaterial claim that cannot support Black’s
recovery; (2) there is neither a legal nor evidentiary basis to support the imposition
of liability as to either Appellant; and (3) the evidence is insufficient to support the
$1 million assessed as damages for Black’s future medical care expenses.

We overrule Appellants’ first issue and conclude that the alleged error in the
jury charge did not render Question No. 1 immaterial. We overrule in part and
sustain in part Appellants’ second challenge and hold that (1) a sufficient legal and
evidentiary basis supports the imposition of liability against Diamond Drilling, and
(2) an insufficient evidentiary basis supports liability against Diamond Rig. In
light of this disposition of Appellants’ second issue, we need not reach Appellants’
third issue.

We develop these issues more fully below.

I. Question No. 1

In their first issue, Appellants contend that Question No. 1 submitted a Jones
Act claim that is foreclosed as a matter of law because the phrase “proximate
cause” was omitted and replaced with “cause, in whole or in part.” Specifically,
Appellants contend that the absence of the phrase “proximately caused”
automatically incorporated the “featherweight” causation standard utilized for
Jones Act claims. See Noble Drilling (US) Inc. v. Fountain, 238 S.W.3d 432, 439-
40 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“Under the Jones Act, a
seaman is entitled to recovery if his employer’s negligence is the cause, in whole
or in part, of his injury. . . . The burden to establish causation under the Jones Act
has been termed ‘featherweight.’”).

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 Appellants liken this situation to that analyzed in United Scaffolding, Inc. v.
Levine, 537 S.W.3d 463 (Tex. 2017). There, the plaintiff sued the defendant after
he slipped on a piece of plywood and fell through a scaffold. Id. at 467. The
parties proceeded to trial and the plaintiff’s claim was submitted to the jury as a
general negligence claim. See id. at 469. But after considering the plaintiff’s
injury, his pleadings, his allegations, and the evidence presented at trial, the
supreme court held the claim sounded in premises liability. See id. at 469-79.
Concluding that “the theory of recovery submitted to the jury did not reflect the
claim that was raised by the pleadings and the evidence,” the court held that the
jury’s general negligence finding could not support recovery in a premises defect
case. Id. at 480-81.

Similarly, Appellants contend that the alleged error in Question No. 1 shows
that Black submitted a Jones Act claim that cannot support his recovery. We
disagree.

First, the question submitted here did not omit a specific element necessary
to support Black’s recovery under a general negligence theory. “The elements of
negligence are a legal duty, breach of that duty, and damages proximately caused
by the breach.” Hernandez v. Gonzalez-Flores, 530 S.W.3d 253, 256 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied). Each of these elements was
substantially submitted to the jury. Even though the element of causation as stated
in Question No. 1 neglected to include the “proximate” designation, the definition
of “proximate cause” was included in the “Definitions and Instructions” portion of
the charge immediately preceding Question No. 1. See also United Scaffolding,
Inc., 537 S.W.3d at 480-81 (noting that the elements of premises liability were not
submitted as “instructions or definitions”).

Under these circumstances, the omission of the phrase “proximate cause”

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from Question No. 1 did not submit another or wrong theory of liability to the jury;
instead, it constituted (at most) “an independent theory of recovery [that] [wa]s
submitted defectively.” See id. at 481. Any objections to such error must be made
to the trial court or they are waived. Id.; see also Chang v. Denny, No. 05-17-
01457-CV, 2019 WL 3955765, at *5 (Tex. App.—Dallas Aug. 22, 2019, pet.
denied) (mem. op.) (the defendant was required to object to the jury charge
because his “complaint is with the wording of the question and whether it should
have tied diligence to the filing of the lawsuit instead of prosecuting the claim”);
Free v. Lewis, No. 13-11-00113-CV, 2012 WL 3242090, at *8 (Tex. App.—
Corpus Christi Aug. 9, 2012, no pet.) (mem. op.) (the defendant was required to
object to the charge to preserve his complaint that the jury question omitted one of
the elements necessary to support a breach of contract claim). Here, Appellants
did not object to the alleged error in Question No. 1, and the failure to do so waives
the complaint Appellants assert on appeal.2 See Tex. R. Civ. P. 274, 279; see also
Chang, 2019 WL 3955765, at *5; Free, 2012 WL 3242090, at *8.

Second, we have carefully examined the charge at issue and compared it
with the Fifth Circuit’s pattern instruction for Jones Act claims.3 These pattern

2
In his concurring opinion, Justice Jewell asserts that Appellants “do not challenge the
omission of proximate cause from the negligence question” but instead “argue that the omission
of proximate cause means that the question was not a negligence question at all.” See
Concurring Op. at 5 n.2. We agree that this is how Appellants attempt to frame the argument
raised in their first issue. However, because the thrust of Appellants’ issue challenges the
omission of “proximate cause” from Question No. 1, we construe this as a challenge to the
wording of the question itself — an argument that requires a timely objection in the trial court.
See Tex. R. Civ. P. 274, 279; see also Chang, 2019 WL 3955765, at *5; Free, 2012 WL
3242090, at *8.
3
Fifth Circuit District Judges Association Pattern Jury Instructions Committee, Pattern
Jury Instructions, Civil Cases § 4.4 (2014).
Under the Jones Act, Plaintiff [name] must prove that [his/her] employer
was negligent. Negligence is doing an act that a reasonably prudent
person would not do, or failing to do something that a reasonably prudent

7
jury charges counsel against the conclusion that Question No. 1 submitted a Jones
Act claim.

Finally, United Scaffolding emphasized that a theory of premises liability
required four specific findings in addition to the general negligence elements that

person would do, under the same or similar circumstances. The
occurrence of an accident, standing alone, does not mean that anyone was
negligent or that anyone’s negligence caused the accident.
In a Jones Act claim, the word “negligence” is liberally interpreted. It
includes any breach of duty that an employer owes to its employees who
are seamen, including the duty of providing for the safety of the crew.
Under the Jones Act, if the employer’s negligent act was the cause, in
whole or in part, of injury to a seaman employee, then you must find that
the employer is liable under the Jones Act. In other words, under the
Jones Act, Defendant [name] bears the responsibility for any negligence
that played a part, however slight, in causing Plaintiff [name]’s injury.
Negligence under the Jones Act may consist of a failure to comply with a
duty required by law. Employers of seamen have a duty to provide their
employees with a reasonably safe place to work. If you find that Plaintiff
[name] was injured because Defendant [name] failed to furnish [him/her]
with a reasonably safe place to work, and that Plaintiff [name]’s working
conditions could have been made safe through the exercise of reasonable
care, then you must find that Defendant [name] was negligent.
The fact that Defendant [name] conducted its operations in a manner
similar to that of other companies is not conclusive as to whether
Defendant [name] was negligent or not.
You must determine if the operation in question was reasonably safe under
the circumstances. The fact that a certain practice had been continued for
a long period of time does not necessarily mean that it is reasonably safe
under all circumstances. A long-accepted practice may be an unsafe
practice. A practice is not necessarily unsafe or unreasonable, however,
merely because it injures someone.
A seaman’s employer is legally responsible for the negligence of one of
[his/her] employees while that employee is acting within the course and
scope of [his/her] [job] [employment].
If you find from a preponderance of the evidence that Defendant [name]
assigned Plaintiff [name] to perform a task that the Plaintiff [name] was
not adequately trained to perform, you must find that Defendant [name]
was negligent.

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were submitted to the jury.4 Here, Black’s theory of liability “was submitted to the
jury under only a general negligence theory of recovery, without the elements of
premises liability as instructions or definitions.” Therefore, this verdict could not
support the plaintiff’s recovery in a premises defect case. See United Scaffolding,
Inc., 537 S.W.3d at 480-81.

We overrule Appellant’s first issue.

II. Legal and Evidentiary Bases for Liability

In their second issue, Appellants contend that (1) there is no legal basis for
the imposition of a duty as to either Appellant, and (2) there is no evidentiary basis
to support the existence or breach of a duty as to either Appellant. We consider
these arguments separately.

A. Legal Basis

Appellants’ argument concerning the legal basis of an imposed duty is
comprised of two parts.

First, Appellants assert that the “jury charge contains no predicate findings
necessary to establish that these separate and distinct Diamond entities owed a
cognizable legal duty towards Black under the circumstances in which the Jones
Act and general maritime law do not apply.” Specifically, Appellants argue that no
jury findings were requested or made with respect to alter ego, agency, respondeat
superior, or any other legal theory that could establish a cognizable duty on the part

4
Specifically, those elements include that the (1) defendant had actual or constructive
knowledge of some condition on the premises; (2) condition posed an unreasonable risk of harm
to the plaintiff; (3) defendant did not exercise reasonable care to reduce or to eliminate the risk;
and (4) defendant’s failure to use such care proximately caused the plaintiff’s personal injuries.
United Scaffolding, Inc., 537 S.W.3d at 471-72 (citing Corbin v. Safeway Stores, Inc., 648
S.W.2d 292, 296 (Tex. 1983)); see also Comm. on Pattern Jury Charges, State Bar of Tex., Texas
Pattern Jury Charges: Malpractice, Premises, Products PJC 66.4 (2020).

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of the Diamond entities separate from Diamond Bermuda, with whom Black had
signed an employment agreement.

This argument is similar to those analyzed and rejected in Service
Corporation International v. Guerra, 348 S.W.3d 221 (Tex. 2011), and Ross
Stores, Inc. v. Miller, 612 S.W.3d 682 (Tex. App.—Houston [14th Dist.] 2020, no
pet.). In Service Corporation International, the plaintiffs sued a cemetery operator
and its parent corporation after their relative’s body was moved to another burial
plot without their consent. 348 S.W.3d at 227. The jury returned a verdict in favor
of the plaintiffs. Id. On appeal, the defendants challenged the predicate findings
necessary to support the plaintiffs’ negligence claim and argued the jury charge
failed to “contain a separate question asking if any of the actors were [the parent
corporation’s] employees.” Id. at 228. Rejecting this argument, the court stated
that “[w]hether the actors involved in this case were [the parent corporation’s]
employees was not an independent ground of recovery; the actors’ status as
employees was an element of the [plaintiffs’] negligence claim against [the parent
corporation].” Id. (emphasis in original). The court further held:

When an element of the claim is omitted from the jury charge without
objection and no written findings are made by the trial court on that
element then the omitted element is deemed to have been found by the
court in such manner as to support the judgment. Here there was no
objection to the charge on the basis that it omitted the element nor did
the trial court make a finding on it, so there is a deemed finding in
support of the judgment.

Id. at 228-29 (internal citations omitted).

In Ross Stores, Inc., the plaintiff sued the parent corporation of Ross Dress
for Less, Inc. after he sustained injuries in a physical altercation at work. 612
S.W.3d at 685. The jury returned a verdict for the plaintiff on his negligence
claims. Id. On appeal, the parent corporation argued that the evidence was legally

10
insufficient to support the jury’s negligence finding since the plaintiff was not an
employee of the parent corporation nor did the parent corporation assume control
over its subsidiary’s safety policies. Id. at 687-88. In response, the plaintiff
argued that the parent corporation waived this issue by failing to request “a
threshold fact question ‘calculated to determine the question of duty.’” Id. at 688.
But as in Service Corporation International, the parent corporation’s argument
focused on an element of the plaintiff’s negligence claim. Id. “[T]here was no
objection to the charge on the basis that it omitted the element, and the trial court
did not make a finding on this element, so there [was] a deemed finding in support
of the judgment.” Id. The court proceeded to analyze whether this deemed finding
was supported by legally sufficient evidence. See id. at 687-91.

Here too, the question of whether either Appellant had a relationship with
the actors in this case sufficient to support the imposition of a duty was an element
of Black’s claims against Appellants. See Serv. Corp. Int’l, 348 S.W.3d at 228-29;
Ross Stores, Inc., 612 S.W.3d at 686. There was no objection to the charge on
grounds that this element was omitted nor were written findings made by the trial
court on this point. Therefore, the omitted element is deemed to have been found
by the trial court in such a manner as to support the judgment. Serv. Corp. Int’l,
348 S.W.3d at 229; Ross Stores, Inc., 612 S.W.3d at 686. But as with other
findings, there must be evidence in the record to support a deemed finding. Serv.
Corp. Int’l, 348 S.W.3d at 229; Ross Stores, Inc., 612 S.W.3d at 686. In the
following sections, we undertake this evidentiary analysis separately with respect
to each Appellant.

Second, Appellants argue that Black’s untimely-filed “Notice of Intent to
Rely on Foreign Law” cannot supply a legal basis for the duty imposed on
Appellants. Black’s notice sought to apply English law to the substantive legal

11
issues in the case. Under Texas Rule of Evidence 203, a party “who intends to
raise an issue about a foreign country’s law must: (1) give reasonable notice by a
pleading or writing; and (2) at least 30 days before trial, supply all parties a copy of
any written materials or sources the party intends to use to prove the foreign law.”
Tex. R. Evid. 203. “If the party seeking the application of foreign law fails to
provide the necessary information to the trial court, there is a presumption that the
law of the foreign jurisdiction is identical to that of Texas.” Cal Dive Offshore
Contractors Inc. v. Bryant, 478 S.W.3d 914, 921 (Tex. App.—Houston [14th Dist.]
2015, no pet.); PennWell Corp. v. Ken Assocs., Inc., 123 S.W.3d 756, 764 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied).

Here, Black’s first amended petition invoked English law to govern his
claims. Specifically, Black pleaded English law claims as an alternative to his
Jones Act and general maritime claims. But Black’s “Notice of Intent to Rely on
Foreign Law” was filed four days before trial began, thus failing to comply with
Rule 203’s thirty-day filing deadline for sources establishing the substance of the
foreign law. See Tex. R. Evid. 203. Accordingly, Black only may rely on Texas
law to establish a cognizable basis for liability with respect to Appellants. See Cal
Dive Offshore Contractors Inc., 478 S.W.3d at 921; PennWell Corp., 123 S.W.3d
at 764.

Under Texas law, a plaintiff seeking to establish liability for negligence
must prove the existence and violation of a duty owed to him by the defendant.
Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Kukis
v. Newman, 123 S.W.3d 636, 639 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
The existence of a duty is a question of law for the court to decide from facts
surrounding the occurrence in question. Gator Gone Safety Pilots v. Holt, 622
S.W.3d 524, 536 (Tex. App.—Houston [14th Dist.] 2021, no pet.); Finley v. U-

12
Haul Co. of Ariz., 246 S.W.3d 185, 187 (Tex. App.—Houston [14th Dist.] 2007,
no pet.).

When the trial court submits a negligence question to the jury, the court has
implicitly concluded that a duty exists — a decision we review de novo. Gator
Gone Safety Pilots, 622 S.W.3d at 536. Appellants challenged this implied finding
in their JNOV motion, thus preserving the issue for appellate review. See, e.g., id.
at 536 n.6. In the following analyses, we examine whether the evidence is legally
sufficient to support this implied finding.

B. Evidentiary Basis: Diamond Drilling

Appellants contend that “the record does not support Black’s effort to cobble
together a duty” owed by Diamond Drilling to Black. In response, Black argues
that Diamond Drilling “owed duties to Black as his employer and the employer of
his fellow crew members.”

1. Applicable Law and Standard of Review

“Texas law generally imposes no duty to take action to prevent harm to
others absent certain special relationships or circumstances.” Torrington Co. v.
Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); Kuentz v. Cole Sys. Grp., Inc., 541
S.W.3d 208, 213 (Tex. App.—Houston [14th Dist.] 2017, no pet.). One such
special relationship is that between employer and employee. Verinakis v. Med.
Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied).

The Texas supreme court has held that employers in Texas owe certain
continuous, non-delegable duties to their employees. Farley v. M M Cattle Co.,
529 S.W.2d 751, 754 (Tex. 1975), abrogated on other grounds by Parker v.
Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978); see also Kroger Co. v. Milanes,

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474 S.W.3d 321, 335 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Included
among these are the duties to (1) furnish a reasonably safe workplace; (2) warn
employees of hazards of their employment that are not commonly known or
already appreciated; (3) supervise employees’ activities; (4) hire competent co-
employees; (5) furnish reasonably safe instrumentalities with which to work; and
(6) provide safety regulations. Kroger Co., 474 S.W.3d at 335 (citing Cent. Ready
Mix Concrete Co. v. Islas, 228 S.W.3d 649, 652 & n.10 (Tex. 2007); Farley, 529
S.W.2d at 754). An employer also has the duty to train employees in “the safe use
and handling of products and equipment used in and around an employer’s
premises or facilities.” Id. An employer has the duty to use ordinary care, based
on standard negligence principles, in carrying out these duties. Leitch v. Hornsby,
935 S.W.2d 114, 117 (Tex. 1996); Kroger Co., 474 S.W.3d at 335.

However, a corporation generally is not liable for the negligence of someone
who is not its employee. Serv. Corp. Int’l, 348 S.W.3d at 228; Ross Stores, Inc.,
612 S.W.3d at 688. Accordingly, to warrant the imposition of these duties, the
record must contain legally sufficient evidence to support a finding of an
employment relationship between Diamond Drilling and the actors involved in this
incident. See, e.g., Serv. Corp. Int’l, 348 S.W.3d at 229-31; Ross Stores, Inc., 612
S.W.3d at 688-90.

Evidence is legally insufficient when “(a) there is a complete absence of
evidence of a vital fact, (b) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact, (c) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.” Serv. Corp. Int’l, 348
S.W.3d at 228 (internal quotation omitted). Evidence is more than a scintilla if it
“rises to a level that would enable reasonable and fair-minded people to differ in

14
their conclusions.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
If, however, the evidence does no more than create a mere surmise or suspicion
and is so slight as to necessarily make any inference a guess, then it is no evidence.
Id.

2. Relevant Evidence

The jury heard testimony from Daryl Tankersley, who was working as a
safety department representative and medic on the Ocean Valiant at the time of
Black’s injury. Tankersley previously had been deposed as the corporate
representative for the Diamond entities involved in the suit, including Diamond
Drilling.

According to Tankersley, he was working for Diamond Offshore Services
Limited at the time of Black’s injury. Discussing the Diamond entities’ corporate
structure, Tankersley agreed that he worked for Diamond Drilling “at least in some
capacity.”

Tankersley testified generally about Diamond Drilling’s involvement with
the Ocean Valiant and the activities conducted thereon. Tankersley reviewed the
ship’s daily drilling report for January 2, 2015, the date of Black’s injury. The
report states that Diamond Drilling is the “contractor” and does not include any
other “contractors.” Black is listed as an employee on the daily drilling report; the
report states that Black was not injured on this “tour.” Tankersley agreed that this
statement was “false.”

Tankersley also reviewed a daily drilling report dated one week before
Black’s injury. This daily drilling report also lists Diamond Drilling as the ship’s
sole “contractor.” Tankersley agreed that he had not seen “any documents to
suggest that there were any other Diamond Offshore entities located on the Ocean

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Valiant on January 2, 2015[,] other than Diamond Offshore Drilling,
Incorporated.”

Finally, Tankersley reviewed the “Injury/Illness Incident” report completed
on the day of Black’s injury. The report lists “Diamond Offshore” as the “Client.”
The “Supervisor” listed on the report has a Diamond Drilling email address.

Describing the duties he performed as the Ocean Valiant’s safety department
representative, Tankersley said he did “lots of deck surveys” and “work[ed] with
the shipyard personnel, verifying that they were following our policies and
procedures.” Tankersley agreed that he was responsible for “housekeeping” and
“want[ed] to make sure that everything is put up and properly stored.” Tankersley
testified that the ship’s hazardous chemical storage was undergoing work so “most
of those chemicals were removed” and some chemicals “were kept at the point of
use in an authorized area, personnel only area.” When asked whether the ship’s
crew was informed that certain hazardous chemicals would be moved from their
usual storage area, Tankersley said it “would have probably been just discussed in
meetings” but he did not “recall the specifics.”

One of the hazardous chemicals moved from its usual storage area was the
AlfaNeutra bucket Black sat on while working. Tankersley agreed that the
AlfaNeutra “was being improperly stored at the time” of Black’s injury.

Tankersley treated Black shortly after his injury. Tankersley said Black was
transported to a local hospital “an hour or so after the initial incident.” According
to Tankersley, Black returned to the ship with a release to work. Black returned to
his regular duties and Tankersley assisted him with changing his bandages and
applying wound cream per doctor’s orders.

Tankersley also was involved in the investigation of the incident.

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Tankersley said the investigation was “never able to determine who was the one —
who actually was the last one to use” the AlfaNeutra bucket that Black sat on.
Tankersley said he “believe[d] that an employee was responsible for not storing the
chemicals properly.” But Tankersley could not identify which Diamond entity this
employee would have worked for. Referring to the Diamond entities’ corporate
structure, Tankersley said he did not “understand how that works.”

The investigation also was assisted by Clyde Reeves, the head of Black’s
department and to whom Black reported. Tankersley was unsure which Diamond
entity Reeves worked for and explained that he “d[id]n’t know who gets paid from
what area and who works in — for what individual entity.” Tankersley agreed that
Reeves’s email address “is an email address for Diamond Offshore Drilling,
Incorporated.”

Tankersley reviewed the investigative report created after the incident.
According to the report, the “root causes” of the incident were: “improper storage
of hazardous chemicals as it pertains to the physical location in proximity of the
work area”; “improper storage of hazardous chemicals in relation to adequately
securing the cap after use”; and “inadequate hazard identification prior to starting
the job due to complacency.” Tankersley also said Black was “the area supervisor
for that area” and was “responsible for maintaining that area and responsible for
knowing what chemicals were in that area and for also understanding having
clearly marked containers and the contents thereof.”

During this line of inquiry, a portion of Tankersley’s previously recorded
deposition was played into evidence. Tankersley was asked, “So it’s not
uncommon for a mechanic to sit on a bucket or some other piece of equipment in
order to access the equipment they’re working on?” Tankersley responded,
“Correct.”

17
 Tankersley said that, during his investigation of the incident, he did not see
any connections to Diamond Bermuda. Tankersley said he did not maintain a
“strong line of contact” with anyone in Bermuda nor had he ever been to Bermuda.
Tankersley did not know if Diamond Drilling maintained an office in Bermuda.
Tankersley agreed that he maintained “a strong line of contact” with Diamond’s
corporate headquarters in Houston.

Tankersley said Diamond Bermuda would not have had any control over
how hazardous chemicals would be stored on the Ocean Valiant. Tankersley said
this would be managed “by the rig.”

The jury also heard from Karen Roll, a senior human resources business
partner at “Diamond Offshore.” According to Roll, part of her job included hiring
and firing employees. Roll said she had spent 23 years working for Diamond
Offshore in its Houston office. Roll agreed that this location is listed online as
Diamond Drilling’s Houston headquarters. Roll said she had never been to
Bermuda nor had she made contact with anyone from Diamond Bermuda’s office.

Roll reviewed the employment contract Black signed in 2008 with Diamond
Bermuda. Roll agreed that she signed the employment contract in her capacity as
Diamond Drilling’s “representative.” Roll further agreed that the paperwork for
Black’s hiring was completed in the Houston office.

Roll also reviewed two of Black’s training certificates, both of which state
the training was completed with “Diamond Offshore Drilling, Inc.” The first
certificate is for “Safety Leadership” and was completed in July 2009. The second
certificate is for “Manual Handling” and was completed in May 2014. Roll agreed
that Diamond Drilling “trained Mr. Black kind of throughout his career with
Diamond, based off these documents.” Roll said she had not seen any documents
suggesting Black was trained in Bermuda.
18
 Roll also emailed Black regarding his termination in July 2015. Roll’s email
to Black instructed him to direct any questions to a separate employee with a
Diamond Drilling email address. Roll’s signature line on the email stated that she
was a Diamond Drilling employee.

According to Black’s testimony, he started working with the Diamond
entities in 2008. During the hiring process, Black said his point of contact was
Roll in the Houston office. Black testified that, at the time of the incident, his
immediate supervisor was Reeves, an employee of Diamond Drilling. Black said
he took his work orders from Reeves and, on the day of the incident, Reeves
assigned Black to work on the water maker. According to Black, the water maker
is a piece of equipment that “convert[s] seawater to drinking water and fresh
water.” Black said the water maker was located in the ship’s auxiliary machine
room.

Turning to the day of the incident, Black said he was not told there would be
hazardous chemicals in the auxiliary machine room. Black also said he was not
told to look for hazardous chemicals nor did he expect any to be located in the
auxiliary machine room. According to Black, “[t]here actually shouldn’t have
been any hazardous chemicals in that area. It’s not an area where they should be
stored.”

Further describing his work on the water maker, Black said “the parts that
[he] was working on were actually down really low, below knee level.” Black said
that, as part of his training with Diamond Drilling, he learned about safe posture
and lifting techniques. Black said the AlfaNeutra bucket was located “right
behind” him so he “just sat down” on it. Black recalled that he sat on the bucket
for about 10-15 minutes before he felt the AlfaNeutra soaking through his
coveralls.

19
 Black said Tankersley treated his injury before he was transported off the
ship. Black then was taken to a “local clinic” where he “had to wait for quite a bit”
before he was seen by a doctor. Black said his burn was treated with cream and a
dressing was applied. Black returned to the ship and went back to work the same
day. Black continued to work over the next several days as his pain worsened.

Black said the pain became “unbearable” and he returned to the ship’s
medic. The medic offered to take Black back to the “local clinic” but Black
“wanted to go and see someone that knew something about burns to get it looked at
and treated properly.” Black returned to the United Kingdom and saw his local
doctor, who diagnosed Black’s injury as a third-degree chemical burn. Black
underwent an immediate skin graft surgery and remained in the hospital for a
week.

Turning to his relationship with Diamond Bermuda, Black said he had never
been to Bermuda, never spoken with anyone in Bermuda, nor received any training
in Bermuda. Black said he had only traveled to Houston for training.

Finally, Appellants called David Ellingburg to testify as a corporate
representative. Ellingburg said the purpose of Diamond Drilling is to own various
subsidiaries of Diamond Offshore. Ellingburg said Diamond Drilling has no
employees.

Ellingburg explained that one of Diamond Drilling’s subsidiaries is
Diamond Bermuda. Ellingburg described Diamond Bermuda as an “employment
subsidiary” that employs “third country nationals” like Black. According to
Ellingburg, the United States citizens working on the Ocean Valiant were

20
employed by a separate subsidiary: Diamond Offshore Services Limited.5

3. Application

Here, the record contains evidence sufficient to support the trial court’s
implied finding that an employment relationship existed between Diamond Drilling
and the actors involved in this incident. Specifically, the evidence summarized
above shows:

• Roll signed Black’s 2008 employment contract in her capacity as a
Diamond Drilling representative.
• Black completed safety leadership and manual handling training with
Diamond Drilling in Houston.
• During his Diamond employment, Black had not visited or spoken
with anyone in Bermuda. Black traveled only to Houston for training.
• On the daily drilling reports completed a week before and on the day
of the incident, Diamond Drilling was listed as the Ocean Valiant’s
“contractor,” and the daily drilling reports did not list any other
contractors.
• Tankersley was employed at least in some capacity for Diamond
Drilling. At the time of the incident, Tankersley worked on the Ocean
Valiant as a safety department representative and medic.
• Tankersley performed “housekeeping” duties on the ship, which
included “mak[ing] sure that everything is put up and properly
stored.”
5
During the charge conference, the parties and the trial court had a lengthy discussion
about Diamond Offshore Services Limited. According to Black’s counsel, Black was first
informed of this subsidiary’s existence during Ellingburg’s testimony. Pointing to Appellants’
responses to requests for disclosure and interrogatories, Black’s counsel asserted that Appellants
did not disclose this entity’s existence as a potential party or an entity that “caused or
contributed” to the incident in any way.
In its ruling on this objection, the trial court included in the jury charge a paragraph
stating that, “Diamond Offshore Services Limited and Diamond Offshore Drilling (Bermuda) are
subsidiaries of Diamond Offshore Drilling Incorporated.” Black’s counsel emphasized this
instruction in his closing argument and stated that Diamond Bermuda and Diamond Offshore
Services Limited “are to be held responsible as any subsidiaries” of Diamond Drilling.

21
 • Tankersley was aware that some hazardous chemicals were removed
from their usual storage area on the Ocean Valiant, including the
bucket of AlfaNeutra Black sat on.
• On the day of his injury, Black said he was not told to look for any
hazardous chemicals in his workplace nor did he expect any to be
located in the auxiliary machine room.
• Tankersley provided care to Black immediately after his injury and
before he was transported off the ship.
• Tankersley was involved in the investigation of Black’s injury and
concluded that an employee on the ship was responsible for the
improper storage of the AlfaNeutra. According to Tankersley, the
investigation was not able to identify who this employee was or which
Diamond entity the employee worked for.
• Clyde Reeves, Black’s supervisor, also participated in the
investigation. Reeves had a Diamond Drilling email address and
Black testified that Reeves worked for Diamond Drilling. Reeves
instructed Black to work on the water maker on the day of the
incident.
• During the incident’s investigation, no connections were made to
Diamond Bermuda.
• The supervisor listed on Black’s injury report had a Diamond Drilling
email address.
• When Roll subsequently emailed Black regarding his termination,
Roll directed Black to contact a Diamond Drilling employee with any
questions he had about benefits. Roll’s signature line on this email
also identified her as a Diamond Drilling employee.
Considered together, this evidence shows that Diamond Drilling assumed
responsibility as the contractor for the Ocean Valiant and employed, at least in
some capacity, the crew members. Various crew members were involved in all
pertinent aspects of the incident, including: (1) ensuring housekeeping policies
and procedures were followed on the ship, (2) failing to ensure those procedures
were followed with respect to the AlfaNeutra bucket Black sat on, (3) instructing
Black to work on the water maker, (4) treating Black’s injury, and (5) investigating

22
the incident. More broadly, the evidence shows Diamond Drilling representatives
participated in Black’s hiring, training, and termination. The evidence does not
show this level of involvement for any other Diamond entity, including Diamond
Bermuda and Diamond Offshore Services Limited. Accordingly, the record
contains evidence sufficient to support the trial court’s implied finding of an
employment relationship as necessary to impose a duty of care upon Diamond
Drilling. See, e.g., Serv. Corp. Int’l, 348 S.W.3d at 229-31; Ross Stores, Inc., 612
S.W.3d at 688-90.

Challenging this conclusion, Appellants liken the evidence presented here to
that deemed insufficient to support the finding of an employment relationship in
Service Corporation International, 348 S.W.3d at 229-31, and Ross Stores, Inc.,
612 S.W.3d at 688-90.

But in those cases, the evidence tying the parent corporation to the relevant
facts and actors underlying the negligence claim were slight compared to the
evidence in the present case. See Serv. Corp. Int’l, 348 S.W.3d at 229-31
(evidence included statements from workers that they worked for “SCI” and the
“SCI” logo printed on personnel paperwork, both of which were consistent with
employment with either the parent or subsidiary corporation); Ross Stores, Inc.,
612 S.W.3d at 688-90 (evidence included manager’s statement that all subsidiary
employees also were employees of the parent corporation; bottom of each page of
employee handbook had a footer stating, “[parent corporation’s] HR Policy
Handbook”; and a statement in a letter to the plaintiff stating that “We at [parent
corporation] are sorry to hear you were injured at work.”). Here, the relevant
evidence rises well above the level of that examined in Service Corporation
International and Ross Stores, Inc. Accordingly, these cases do not control our
analysis.

23
 Further, this evidence also is legally sufficient to support the jury’s finding
that Diamond Drilling breached its duties to Black. As set out above, employers in
Texas owe certain duties to their employees and are required to use ordinary care
in carrying out these duties. See Farley, 529 S.W.2d at 754; Kroger Co., 474
S.W.3d at 335. The evidence is legally sufficient to show that Diamond Drilling
breached certain duties, including the duties to (1) furnish a reasonably safe
workplace, (2) warn employees of hazards of their employment that are not
commonly known or already appreciated, (3) supervise employees’ activities,
(4) hire competent co-employees, and (5) furnish reasonably safe instrumentalities
with which to work. See Kroger Co., 474 S.W.3d at 335.

Therefore, we overrule Appellants’ evidentiary sufficiency challenges with
respect to Diamond Drilling.

C. Evidentiary Basis: Diamond Rig

Appellants also contend that “[t]his record provides no basis for a duty
running from Diamond Rig to Black or a determination that Diamond Rig
breached any such duty.” In response, Black asserts that “Diamond Rig owed
duties to Black as the owner of the vessel on which his injuries occurred.”

Black’s argument is premised on the doctrine of unseaworthiness, which
provides a cause of action for injuries resulting from defects or insufficiencies of a
vessel, its crew, or its appurtenances that undermine the vessel’s seaworthiness.
See Rigdon Marine Corp. v. Roberts, 270 S.W.3d 220, 227 (Tex. App.—Texarkana
2008, pet. denied); see also Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir.
1991) (“A shipowner has an absolute nondelegable duty to provide a seaworthy
vessel.”). A claim for unseaworthiness arises under general federal maritime law.
See Delome v. Union Barge Line Co., 444 F.2d 225, 228 (5th Cir. 1971) (“the
shipowner’s warranty of seaworthiness in personal injury cases is now firmly

24
rooted in federal maritime law”); see also Weeks Marine, Inc. v. Garza, 371
S.W.3d 157, 163 (Tex. 2012) (“[t]he unseaworthiness claim . . . arise[s] under
general maritime law”); Nazareth v. McDermott Int’l, Inc., 569 S.W.3d 205, 207
(Tex. App.—Houston [1st Dist.] 2018, no pet.) (“Under general maritime law, a
seaman injured aboard a vessel may assert a claim for unseaworthiness against the
vessel owner.”).

But as with the Jones Act, certain foreign seamen are excluded from
asserting claims under general maritime law. See 46 U.S.C.A. § 30105(b); see also
Nazareth, 569 S.W.3d at 207 (“Section 30105, however, excludes certain foreign
seamen from asserting claims under either general maritime law or the Jones
Act.”). Specifically, section 30105(b) provides that a civil lawsuit for personal
injury damages may not be brought under the Jones Act or other federal maritime
law if three conditions are satisfied:

(1) the individual suffering the injury or death was not a citizen or
permanent resident alien of the United States at the time of the
incident giving rise to the action;
(2) the incident occurred in the territorial waters or waters overlaying the
continental shelf of a country other than the United States; and
(3) the individual suffering the injury or death was employed at the time
of the incident by a person engaged in the exploration, development,
or production of offshore mineral or energy resources, including
drilling, mapping, surveying, diving, pipelaying, maintaining,
repairing, constructing, or transporting supplies, equipment, or
personnel, but not including transporting those resources by a vessel
constructed or adapted primarily to carry oil in bulk in the cargo
spaces.
46 U.S.C.A. § 30105(b).

Section 30105(c) creates two exceptions to this exclusion and provides that a
seaman may bring a civil action under general maritime law if he “establishes that
a remedy is not available under the laws of either”:
25
 (1) the country asserting jurisdiction over the area in which the incident
occurred; or
(2) the country in which the individual suffering the injury or death
maintained citizenship or residency at the time of the incident.

Id. § 30105(c). The burden is on the plaintiff to establish that either of section
30105(c)’s exceptions apply. See Johnson v. PPI Tech. Servs., L.P., 613 F. App’x
309, 312 (5th Cir. 2015).

The record here conclusively establishes that section 30105(b) precludes
Black from pursuing a claim under general maritime law: Black was not a citizen
or permanent resident alien of the United States when the incident occurred; the
incident occurred in the territorial waters of a country other than the United States;
and Black was employed at the time of the incident by a company engaged in the
production of offshore energy resources. See 46 U.S.C.A. § 30105(b). Moreover,
these same facts were relied upon by Appellants in their oral motion for a directed
verdict on Black’s Jones Act claim, which the trial court granted. Black does not
challenge this ruling on appeal.

Black does not argue and the record does not show that Black meets either
exception listed in section 30105(c). See id. § 30105(c); see also Johnson, 613 F.
App’x at 312. Moreover, the record supports the conclusion that Black had a
remedy available under the laws of the country in which he maintained citizenship,
as evidenced by his untimely attempt to apply English law to the substantive legal
issues in the case. See also Lawrenson v. Glob. Marine, Inc., 869 S.W.2d 519, 526
(Tex. App.—Texarkana 1993, writ denied) (the plaintiff could not pursue a claim
under general maritime law “when he has a remedy in England”).

Accordingly, section 30105(b) precludes Black from pursuing a cause of
action under general federal maritime law. See 46 U.S.C.A. § 30105(b).
Therefore, Black cannot rely on the doctrine of unseaworthiness to establish a duty
26
owed to him by Diamond Rig. See Weeks Marine, Inc., 371 S.W.3d at 163;
Nazareth, 569 S.W.3d at 207; see also Cepeda v. Orion Marine Constr., Inc., 499
S.W.3d 579, 584 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (“To recover
for unseaworthiness, [the plaintiff] must prove that the unseaworthy condition of
the vessel proximately caused his injuries. But an unseaworthiness claim is not a
negligence claim.”) (emphasis added).

Rather, as noted above, Black’s “Notice of Intent to Rely on Foreign Law”
was not timely filed; therefore, Black only may rely on Texas law to establish a
cognizable legal basis for liability with respect to Diamond Rig. See Tex. R. Evid.
203; Cal Dive Offshore Contractors Inc., 478 S.W.3d at 921; PennWell Corp., 123
S.W.3d at 764. Under Texas law, the existence of a duty is a question of law for
the court to decide from facts surrounding the incident. See Gator Gone Safety
Pilots, 622 S.W.3d at 536; Finley, 246 S.W.3d at 187.

Unlike our analysis with respect to Diamond Drilling, the evidence in the
record does not support the conclusion that Diamond Rig had an employment
relationship as necessary to impose a duty of care. Aside from owning the Ocean
Valiant, Diamond Rig did not have any connection to Black or to the relevant facts
or actors underlying the incident.

The record shows only that Diamond Rig owned the Ocean Valiant at the
time of Black’s incident. At most, this relationship would support a claim
sounding in premises liability. See Occidental Chem. Corp. v. Jenkins, 478
S.W.3d 640, 644 (Tex. 2016) (“Under premises-liability principles, a property
owner generally owes those invited onto property a duty to make the premises safe
or to warn of dangerous conditions as reasonably prudent under the
circumstances.”); see also Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 215-17
(Tex. 2015) (delineating the differences between a claim sounding in premises

27
liability and a claim for the violation of a duty arising from an employer-employee
relationship). But the theory of recovery submitted to the jury did not reflect a
premises liability claim and cannot support a recovery under this theory. See
United Scaffolding, Inc., 537 S.W.3d at 480-81. Moreover, Black did not argue in
the trial court or on appeal that his claim against Diamond Rig sounded in premises
liability.

Accordingly, we agree with Appellants that the trial court erred by impliedly
finding Diamond Rig owed a duty to Black. We sustain Appellants’ second issue
in part with respect to Diamond Rig.

III. Disposition

A single apportionment question was submitted to the jury, to which it
responded as follows:

What percentage of the negligence that caused the occurrence or
injury do you find to be attributable to each of those found by you to
have been negligent?
Answer:
Diamond Offshore Drilling Inc. 52%
Diamond Rig Investments Limited 28%
William Black 20%
Total 100%

As explained above, a sufficient evidentiary basis supports the findings that
Diamond Drilling owed a duty to Black and that the duty was breached. However,
we also conclude that the trial court lacked a sufficient evidentiary basis to
conclude that Diamond Rig owed a duty to Black under principles of Texas
common law negligence. Accordingly, the jury should not have been permitted to
consider Diamond Rig’s liability in assigning percentages of responsibility.

28
 An analogous situation was examined in Heritage Housing Development,
Inc. v. Carr, 199 S.W.3d 560 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
There, the plaintiff sued a nursing home and its parent corporation for negligent
care and treatment of her husband. Id. at 562-63. The jury returned a verdict for
the plaintiff, finding that the nursing home was liable for 40% of the damages and
the parent corporation was liable for 45% of the damages. Id. at 564.

On appeal, the court reversed the judgment against the parent corporation,
concluding that there was legally insufficient evidence to support vicarious liability
against the entity. Id. at 570. The court remanded the case and held that, “[i]f the
jury’s apportionment of liability could have been affected by an issue on which the
trial court charged the jury but on which there was legally insufficient evidence, a
new trial on the entire negligence claim is required.” Id. (citing Romero v. KPH
Consol., Inc., 166 S.W.3d 212, 230-31 (Tex. 2005)). Continuing on, the court
reasoned:

[A] new trial is necessary in this case, because the jury reasonably
could have apportioned liability differently as between [the nursing
home] and the remaining defendants if [the parent corporation] had
not been included in the negligence charge. . . . The finding of
vicarious liability against [the parent corporation] was not supported
by legally sufficient evidence, and we are not reasonably certain that
[the parent corporation’s] inclusion in the jury charge did not affect
the jury’s apportionment of liability or the finding of damages against
[the nursing home], particularly given [the parent corporation’s]
contention on appeal that the reason it is not the nursing home
employer is because [the nursing home] fits that role.

Id. at 571.
We find this reasoning persuasive. Here too, the jury foreseeably could have
apportioned liability differently between Diamond Drilling and Black had
Diamond Rig not been erroneously included in the apportionment question. See id.

29
Accordingly, we remand the case for a new trial on the negligence claim against
Diamond Drilling.

Arguing against this disposition, Black contends that Appellants were
required to have made a contemporaneous objection to the apportionment question
to preserve their argument that a new trial is required. Black cites Emerson
Electric Co. v. Johnson, 627 S.W.3d 197 (Tex. 2021), to support this contention.

In Emerson Electric Co., the jury found the defendant liable based on a
design defect and a marketing defect. Id. at 203. The court upheld the design
defect finding and declined to address the defendant’s challenges to the marketing
defect finding because that theory of liability would not have resulted in any
greater relief. Id. at 210. The defendant argued that the court should address both
liability theories because the jury was asked only one apportionment question and
its allocation of responsibility might have been different based on the type of
liability it found. Id. The court did not address the substance of this argument,
noting instead that the defendant “never made the trial court timely and plainly
aware of any Casteel-type error in the apportionment question.” Id.

We are not persuaded either by Black’s argument or by his reliance on
Emerson Electric Co. A Casteel-type error occurs when the trial court submits a
single broad-form liability question incorporating multiple theories of liability and
the appellate court cannot determine whether the jury based its verdict on an
invalid theory that was improperly submitted. See Crown Life Ins. Co. v. Casteel,
22 S.W.3d 378, 388 (Tex. 2000); see also Zaidi v. Shah, 502 S.W.3d 434, 440
(Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“Casteel and its progeny are
intended to remedy the trial court’s error in failing to eliminate — or at least
segregate — the factfinder’s consideration of invalid claims.”). Casteel-type errors
must be preserved in the trial court by a timely and specific objection. See Tex.

30
Comm’n on Human Rights v. Morrison, 381 S.W.3d 533, 536 (Tex. 2012) (per
curiam).

Here, the apportionment question did not commingle multiple theories of
liability. Rather, the apportionment question asked the jury to segregate liability
amongst three separate parties: Diamond Drilling, Diamond Rig, and Black. On
appeal, we conclude there was an insufficient evidentiary basis to warrant the
imposition of liability against Diamond Rig, an entity the jury found 28%
responsible for the underlying incident.

Accordingly, this issue cannot be characterized as a Casteel-error because
we are not presented with a question as to whether the jury’s verdict was based on
an invalid theory. Instead, we have already concluded the verdict was based on
one (and only one) valid theory of liability, i.e., general negligence. Because the
jury foreseeably could have apportioned liability differently had Diamond Rig not
been included in the charge, a new trial is warranted. See Heritage Hous. Dev.,
Inc., 199 S.W.3d at 571.

CONCLUSION

In sum, we conclude that Question No. 1 did not submit an immaterial claim
that cannot support Black’s recovery. We overrule Appellants’ first issue.

We overrule in part and sustain in part Appellants’ second issue, conclude a
sufficient legal and evidentiary basis supports the imposition of liability against
Diamond Drilling, and conclude insufficient evidence supports the trial court’s
implied finding that Diamond Rig owed a duty to Black.

We therefore reverse the judgment against Diamond Rig and render
judgment in its favor. Because the jury apportioned liability among Diamond Rig
and Diamond Drilling, we cannot be reasonably certain that the inclusion of

31
Diamond Rig in the charge did not affect the jury’s findings as to the
apportionment of liability. We therefore remand the case for a new trial as to
Diamond Drilling.

We need not address Appellants’ third issue in light of our disposition of
Appellants’ second issue.

/s/ Meagan Hassan
Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan (Jewell, J., concurring).

32