Reversed and Remanded and Majority and Concurring Opinions filed
November 13, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-00442-CV

     HELIX ENERGY SOLUTIONS GROUP, INC., HELIX SUBSEA
    CONSTRUCTION, INC., AND HELIX WELL OPS INC., Appellants
                                       V.

                      MATTHEW HOWARD, Appellee

                   On Appeal from the 125th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-67699

                 CONCURRING                   OPINION


      I join Justice Christopher’s majority opinion for the Court in full. I write
separately to provide further explanation for my conclusion that expedited court
determination of maintenance and cure is a procedural rather than a substantive
feature of federal maritime law, and thus it does not preempt applicable Texas
procedures.
      As my colleagues’ opinions explain, the federal courts are divided regarding
when and under what circumstances a court may compel a seaman’s employer to
pay the seaman maintenance and cure. Because the federal decisions often do not
recount in detail the procedural history of the case or the nature of the filing that
led the court to consider the issue of maintenance and cure, they resist tidy
classification. I find such classification unnecessary because the narrower question
before this Texas court is not whether the remedy requested by Howard would be
available in federal court under general maritime law. Instead, it is whether Texas
or federal law governs the manner in which such a remedy may be obtained in a
Texas state court—that is, whether the remedy’s availability is a procedural or
substantive feature of federal maritime law.

      To decide this question, it is useful to consider the category of cases in
which a seaman seeks some type of expedited determination by the court of
maintenance and cure before other issues in the case are resolved—a category that
includes the remedy sought by Howard here. The federal decisions addressing this
category have settled on some clear rules that show expedited determination is a
procedural rather than a substantive issue.

      One conclusion we can draw with certainty from the federal decisions is that
expedited court determination of maintenance and cure is not always available.
Rather, its availability appears to depend on the procedural posture of the case,
particularly the identity of the fact-finder. For example, when a jury trial has been
waived or is not available, some federal courts have recognized that the district
court has the flexibility to hear evidence and make a separate expedited ruling
regarding maintenance and cure while reserving other issues for separate
determination at a later bench trial. Fed. R. Civ. P. 42(b); In re Petition of RJF
Int’l Corp., 261 F. Supp. 2d 101, 102 & n.2 (D.R.I. 2003), aff’d, 354 F.3d 104 (1st

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Cir. 2004); see also Johnson v. Marlin Drilling Co., 893 F.2d 77, 80 (5th Cir.
1990) (remanding for evidentiary hearing on claim to reinstate maintenance and
cure payments); Tate v. Am. Tugs, Inc., 634 F.2d 869, 870 (5th Cir. 1981)
(“determination of the proper amount of [maintenance] is a factual question, to be
decided on evidence presented to the trial court”).

      But federal courts have made clear that expedited determination of
maintenance and cure is not available when—as here—the maintenance and cure
claim is coupled with a Jones Act claim on which a jury trial has been demanded.
Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 21 (1963) (“[W]e hold that a
maintenance and cure claim joined with a Jones Act claim must be submitted to the
jury when both arise out of one set of facts.”); Tate, 634 F.2d at 870–71 (holding
that seaman may either “ask for severance of the maintenance claim and an
expedited trial of it by the court,” or “elect to have a jury trial of that claim when
his Jones Act claim is heard,” but may not have both); see also Spencer v.
Louisiana ex rel. Dep’t of Transp. & Development, 887 So.2d 28, 34–35 (La. Ct.
App. 2004) (holding Louisiana law required jury trial of maintenance and cure
claim). In such cases, federal courts decide the maintenance and cure claim using
either a jury trial or other available procedures for disposition short of trial, such as
summary judgment. E.g., Alario v. Offshore Service Vessels, L.L.C., 477 Fed.
Appx. 186 (5th Cir. 2012) (summary judgment); Brown v. Parker Drilling
Offshore Corp., 410 F.3d 166, 170 (5th Cir. 2005) (jury trial); Hall v. Diamond M
Co., 732 F.2d 1246, 1248 (5th Cir. 1984) (summary judgment).

      Because a party’s ability to obtain an expedited determination of
maintenance and cure in federal court varies depending on the procedural posture
of the case, I conclude that expedited determination is not a “characteristic feature”
of substantive federal maritime law that preempts applicable state procedure. In re

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GlobalSantaFe Corp., 275 S.W.3d 477, 489 (Tex. 2008); see Perry v. Allied
Offshore Marine Corp., 618 So. 2d 1033, 1036 (La. Ct. App. 1993). Under Texas
procedural law, as Justice Christopher’s majority opinion explains, the trial court’s
order compelling maintenance and cure payments is a temporary injunction.
Because that order does not comply with Texas Rule of Civil Procedure 683, I
agree that it is void and must be dissolved. I therefore join the majority opinion.




                                       /s/       J. Brett Busby
                                                 Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby.
(Christopher, J., majority) (Frost, C.J., concurring).




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