Punitive Damages Not Available For Failure To Pay Maintenance & Cure

In a case of first impression, the United States District Court for the Western District of Washington has held that punitive damages for the failure to pay maintenance & cure are not available where seaman’s status is reasonably disputed.

Plaintiff was a pile driver hired to work in the construction of a wharf for the federal government. He was assigned to work in connection with “flexi-floats,” which are used as floating work platforms in maritime construction. He alleged he injured his back in the course of his employment.

Plaintiff sued under the Jones Act and sought punitive damages for the failure to pay maintenance & cure. The employer filed a Motion for Summary Judgment seeking dismissal of the punitive damages claim. Whether Plaintiff was a seaman was disputed and the court previously denied Plaintiff’s Motion for Summary Judgment as to whether he was a seaman. The court held:

“Because reasonable minds could differ on whether Plaintiff’s duties rendered him a seaman, no rational juror could find that Defendants’ opposition to maintenance and cure was in bad faith. Therefore, the Court grants Defendants’ motion for summary judgment and finds that punitive damages are unavailable for Defendants’ allegedly wrongful refusal to pay maintenance and cure.”

Ward v. Ehw Constructors, U.S.D.C. W.D.WA. No. C15-5338

Failure to Conduct JSA for Routine Task is Not a Breach of Duty

On August 5, 2015, the United States Fifth Circuit Court of Appeals issued its opinion in Glaze v. Higman Barge Lines Inc.  The court was asked to review the grant of summary judgment in favor of Higman on the Plaintiff’s Jones Act, unseaworthiness, and maintenance and cure claims.  The Plaintiff, who worked for Higman as a relief captain for approximately four years, alleged injury as a result of maintenance he performed on one of Higman’s vessels.  He claimed that he was instructed to perform a task in the absence of a job safety analysis and that these unsafe work methods rendered the vessel unseaworthy.  The district court granted summary judgment on all Plaintiffs’ claims and he appealed.

 

On appeal, The Fifth Circuit first analyzed the Plaintiff’s Jones Act claim and determined that is was without merit.  The Court ruled that the Captain’s alleged failure to conduct a job safety analysis did not establish a violation of the standard of care.  Further, although a company safety manual can inform what constitutes ordinary prudence, it does not itself create a legal duty.  The task that the Plaintiff was performing—grinding and stripping rust with a needle gun—was a routine task and the Fifth Circuit had previously held that failure to perform a job safety analysis on a routine task is not breach of duty.  The Plaintiff was an experienced seamen of forty years and admittedly knew how to use a needle gun and failed to controvert testimony that he himself trained at least one other crew member on how to use a needle gun to chip rust.

 

The Fifth Circuit also affirmed the grant of summary judgment as to Plaintiff’s unseaworthiness claim.  The basis of Plaintiff’s claim for unseaworthiness was the failure of the Captain to perform a job safety analysis, that the ship did not have safe housekeeping measures, and that the plaintiff was required to perform this task only one month before the vessel entered dry dock for maintenance.  The Fifth Circuit held that a Captain’s failure to conduct a job safety analysis, even if negligent, did not give rise to an unseaworthiness claim.  The Court further found that there was no support for the Plaintiff’s claim of unsafe work methods.  Plaintiff presented no evidence that the needle gun was working improperly or that its use or the vessel was unsafe.  Also, the fact that the vessel was set to undergo routine maintenance in dry dock failed to demonstrate that the vessel or any appurtenance thereto was unfit for its intended purpose or that the crew was inadequate, understaffed, or ill trained.

 

Addressing the Plaintiff’s maintenance and cure claim, the Court found that there was no evidence that the Plaintiff was injured while working on the vessel except for his lawsuit.  Further the Plaintiff did not report an injury to his employer until the suit was filed and he previously told his physicians from who he had sought treatment for his pain that he had not been injured.  The vessel logs did not reflect that any chipping work was done on the day the Plaintiff claimed that he was injured.  The Fifth Circuit affirmed the district court’s grant of summary judgment in favor of the defendant employer, Higman.

Glaze v. Higman Barge Lines, Inc.

Future Lost Wages Based on Statistical Work-Life Expectancy

A rigger on a crane barge was injured when he fell from a makeshift scaffolding.  He sued the vessel owner for negligence under the Jones Act, as well as his employer for cure (the cost of a back surgery) under general maritime law.  After a bench trial in the U.S. District Court for the Eastern District of Louisiana, the Court entered a judgment against the vessel owner and the employer.  Both appealed to the U.S. Fifth Circuit.

The vessel owner alleged several errors on appeal, including the calculation of future lost wages.  The Court held that future lost wages must be based upon a seaman’s statistical average work-life expectancy unless there was evidence that a particular person, by virtue of health or occupation, was likely to live and work shorter or longer than average.  In assigning future lost wages, the District Court simply adopted an age somewhere in the middle of the high and low work-life expectancies presented by the two expert economists.  Because there was no evidence that the plaintiff might live and work longer than average, the Fifth Circuit applied the statistical retirement age presented by the plaintiff’s expert, thus reducing future lost wages by nearly $100,000.00.

The Court also affirmed the employer’s responsibility for payment of the lumbar laminectomy and fusion surgery.  The employer’s physician contested the medical necessity of the surgery, but the Court found the procedure relieved the plaintiff’s pain and was therefore curative in nature and required under the employer’s maintenance and cure obligations.

Barto v. Shore Construction

Is the McCorpen Defense Preserved For Subsequent Employers?

Under the doctrine commonly referred to as the McCorpen defense, a seaman can be denied his rights to maintenance and cure. In order to establish the McCorpen defense, an employer must show that: (1) the claimant intentionally misrepresented or concealed medical facts; (2) the non-disclosed facts were material to the employer’s decision to hire the claimant; and (3) a connection exists between the withheld information and the injury complained of in the lawsuit.

If a company does not subject the seaman to a medical questionnaire or medical examination when he is hired, it will generally not be successful if it asserts the McCorpen defense. However, The United States Fifth Circuit Court of Appeals identified an exception.

In Meche v. Doucet, a successor company bought a vessel division from a predecessor company in an asset sale, and hired all of the predecessor company’s employees. Sometime after the asset sale, one of the newly acquired seaman was allegedly injured while working for the successor company. He filed a claim for maintenance and cure against the successor company. The successor company discovered that the seaman had a preexisting medical condition with a connection to the injury complained of in the lawsuit, and that he intentionally concealed this condition from the predecessor company when he applied for his job.

The successor company argued that it was entitled to the McCorpen defense because it acquired all of the assets and liabilities of the predecessor company, examined protocols and medical examinations of the predecessor company, and retained all of the predecessor company’s employees without subjecting them to updated medical examination. The seaman argued that the intervening asset sale should render the McCorpen defense inapplicable because the successor company did not itself conduct a pre-employment medical examination.

The Court ruled that the successor company fulfilled the requirements under McCorpen and denied maintenance and cure. The Court stated that an intervening asset sale does not automatically relieve a seaman from the consequences of his or her prior intentional concealment of material medical information. However, the Court did not extend the ruling to a seaman who leaves his or her employer for an entirely unrelated company.

The seamen has a pending request to the U.S. Supreme Court to review the ruling of the U.S. Fifth Circuit.

Meche v. Doucet