When the Texas Supreme Court canceled oral arguments in late March due to the pandemic, Austin attorney Kevin Dubose worried about the effect on his client, who had already been waiting five years since a Harris County jury awarded him $1.7 million in damages for his severe arm injury on an offshore drilling platform.
Then on April 1 an unexpected email landed in Dubose’s inbox. Would he like to argue the case virtually on April 8?
If he and opposing attorney Thomas C. Wright agreed, W.T. Offshore Inc. v. Wesley Fredieu would be the high court’s first hearing conducted via Zoom, a teleconferencing technology app that has been widely used as the new coronavirus forced many into remote work.
After a fleeting thought that this could be an April Fool’s Day prank, Dubose felt a sinking sensation in his stomach. He was used to having at least three week’s notice of an upcoming oral argument and wondered if he could be sufficiently prepared to present his best case in seven days.
“My guy still hasn’t gotten a penny,” Dubose said. “If I said no to Zoom arguments in April, I was not sure if they would put us at the end of the line when they start doing live arguments in 2021 or whenever that is.”
The virtual arguments unfolded smoothly on the court’s YouTube channel and on Friday Dubose’s and his client reaped the reward. The court held that Fredieu should receive his damages award.
The Louisiana man suffered a severe arm injury on an offshore platform in 2011. He sued W&T Offshore, a Houston-based oil and gas producer that owned the rig. Fredieu was an independent contractor employed by Wood Group Production Services.
W&T argued that Fredieu was a “borrowed employee” whose only remedy was under the strict limitations of the federal Longshore and Harbor Workers’ Compensation Act. The jury determined that Fredieu was not a borrowed employee.
The trial judge, Dan Hinde, however, rejected the jury’s verdict and found that Fredieu’s employment status was a question of law. After concluding that the trial evidence proved that Fredieu was a borrowed employee, Hinde entered a take-nothing verdict.
In 2018, the Houston-based 14th Court of Appeals reversed the trial court judgment and upheld the jury’s damages award.
The Supreme Court held that while the status of Fredieu is a legal question, W&T failed to prove its borrowed-employee defense based on the disputed evidence and the absence of fact-findings by the jury in W&T’s favor. Fredieu was entitled to a judgment on the jury’s findings of liability and damages, the court said in a 7-1 decision. Justice Debra Lehrmann did not participate in the case.
Justice Jimmy Blacklock, writing for the majority, focused his analysis on the nine-factor test for determining whether a person is a borrowed employee laid out in 1969 by the U.S. Court of Appeals for the Fifth Circuit in Ruiz v. Shell Oil Co. Of particular importance is the question of whether W&T controlled the work activities of Fredieu.
Dubose credits trial lawyer Caj Boatwright with doing a “brilliant job” of cross examining a W&T vice president who said the rig owner did not control Fredieu’s work.
“So when we had their vice president saying we did not control him, that gave us a foothold,” said Dubose.
Blacklock said that testimony created a material fact issue on the key question of control that should have been submitted to the jury.
Fredieu was performing a safety check in 2011 when he noticed a malfunctioning regulator. After radioing W&T’s lead operator on another platform and told to remove the regulator, a nearby pressurized pipe broke loose, hitting his arm and knocking him to the ground.
The impact fractured both bones in Fredieu’s left forearm and required surgery to repair. Fredieu found a light-duty job through relatives but works far fewer hours in his new position and must travel 700 miles from his home in Louisiana. The Supreme Court took those factors into consideration in upholding $950,000 in damages for future lost earning capacity.
On the question of whether Fredieu was a borrowed employee, the jury was given information about the Ruiz factors in its instructions but not asked to answer questions about each factor. Although the trial court was correct in disregarding the jury’s answer to the question that Fredieu was not W&T’s borrowed employee, the Supreme Court concluded the evidence was inconclusive.
“After considering all the Ruiz factors, we conclude that, on the whole, W&T did not establish that Fredieu was its borrowed employee,” said Blacklock.
Justice Jeffrey Boyd, in his dissent, said W&T was not required to obtain jury findings on all the factors but merely had to submit sufficient evidence to support the trial court’s favorable matter-of-law conclusion. He would have reversed the court of appeals and ruled that Fredieu’s remedy was limited to the workers compensation benefits he received.
The Supreme Court’s ruling likely does not have a lot of precedential effect given the unique factors of the trial, Dubose said. “The main lesson is to submit each of the factors individually.”
Dubose, of Alexander Dubose & Jefferson, was part of the first class of Texas lawyers to become board certified in appellate law in the late 1980s. And luckily, he was familiar with Zoom thanks to his service on two nonprofit boards that had been using the teleconferencing technology since 2019.
Dubose is thankful for the technology and the court’s willingness to become the second state high court in the nation to use it for oral arguments.
“I think the Texas Supreme Court has been on the cutting edge of technology for years,” he said. “I’m really proud to be a part of that.”
Read the court’s majority and dissenting opinions.