Jones Act Claim Dismissed on Summary Judgment

Plaintiff worked as a relief captain for Defendant. He maintained that he was injured as a result of an accident aboard Defendant’s vessel, or that Defendant was negligent or provided an unseaworthy vessel. Defendants moved for summary judgment on the grounds that Plaintiff could not establish the necessary elements of his case.

Plaintiff alleged that he was injured while chipping with a needle gun at the instruction of the vessel’s captain. Upon learning that he could not have been injured on the date he alleged because he was not working aboard Defendant’s vessel on that date, he claimed new potential dates of injury. Still, the vessel logs did not show that Plaintiff did any chipping work. Additionally, although Plaintiff testified that the vessel’s captain ordered him to do the work and a tankerman saw him performing the work, the vessel’s captain said he did not order the work and would not have ordered the work for various reasons, and the tankerman said he never saw Plaintiff doing the work in question. No injury was ever reported by Plaintiff to Defendant until the instant suit, and no injury was reported to any medical provider.

In reviewing the facts in a light most favorable to the non-moving party, the Court found that Plaintiff did not create any genuine issues of material fact regarding his claims of negligence, unseaworthiness or maintenance and cure. Based upon Plaintiff’s inconsistent testimony regarding the date of the accident, the lack of corroboration by witnesses, and Plaintiff’s failure to report any injury, the Court held that Plaintiff could not prove that he had any accident or suffered any injury while working aboard Defendant’s vessel. The Court therefore granted Defendant’s Motion for Summary Judgment.

Glaze v. Higman Barge Lines, Inc., 2014 WL 5393355 (E.D. La. 2014).

Maintenance and Cure Not Owed in Case Defended By MBLB

Recently, Will Bland, Beth Bernstein, and paralegal Meredith Foster of Mouledoux, Bland, Legrand & Brackett, LLC, successfully invoked the McCorpen defense for their client, St. June, LLC, resulting in Judge Barbier granting St. June’s motion for summary judgment and dismissing plaintiff’s claims for maintenance and cure with prejudice.  See Eldon P. Foret, Jr. v. St. June, LLC, No. 13-5111 (E.D. LA. 2014).

On January 11, 2011, Eldon Foret sustained injuries to his neck and back while employed as the captain of the M/V ST. JUNE.  Foret filed suit against St. June, LLC on July 18, 2013, asserting claims under the Jones Act, maintenance and cure, as well as punitive damages.  St. June filed a counterclaim on May 14, 2014, seeking reimbursement for all money paid to Foret regarding maintenance and cure and associated legal fees.

St. June’s counterclaim relied on the McCorpen defense.  Specifically, it alleged that Foret had failed to disclose the existence and extent of injuries to his neck and lower back, and that the failure to disclose these facts was material to St. June’s decision to hire Foret.

St. June filed its motion for Summary Judgment before Judge Carl Barbier of the Eastern District on August 26, 2014.

To succeed on the McCorpen defense, an employer must show: (1) The seaman intentionally misrepresented or concealed medical facts; (2) The non-disclosed facts were material to the employer’s decision to hire the seaman; and (3) A causal link exists between the pre-existing injury and the injury incurred during employment.

Whether or not the seaman intentionally misrepresented facts depends on whether or not the employer requests a pre-employment examination.  If the employer requests an examination, the seaman must disclose those medical facts that are plainly desired.  On the other hand, if the employer does not request an examination, the seaman must disclose medical facts that, in the seaman’s own opinion, would be considered important by the ship-owner.

In determining what facts a seaman should consider important to his employer, courts consider the seaman’s employment history.  For instance, an extensive work history over a long period of time familiarizes seamen with what employers expect to uncover regarding their employees’ medical history.  In this case, Foret had worked on shrimp boats for 42 years and acknowledged that several boating companies as well as every oilfield company he had ever worked for had inquired into medical problems with his neck and back.  Further, Foret failed to disclose an injury he sustained to his neck and back on July 2012, or that he was taking pain medication during his employment with St. June.

Regarding materiality, the Fifth Circuit has routinely held that back injuries are precisely the type of information employers consider material in deciding to hire a seaman.  See Brown v. Parker Drilling Offshore, Corp., 410 F.3d 166 (5th Cir. 2005)see also Jauch v. Nautical Servs., Inc., 470 F.3d 207 (5th Cir. 2006).

Finally, courts have regularly found causal links between pre-existing and post-employment injuries where these injuries arise in the same area of the body.  Brown v. Parker Drilling Offshore, Corp., 410 F.3d 166 (5th Cir. 2005).  Here, the record showed that multiple doctors had treated Foret’s lumbar-spine region years before his employment with St. June.  Thus, the court found a causal link between the pre and post-employment injuries based on their extreme similarities.

Plaintiff Could Not Maintain Maritime Claims Against a Non-Employer and Non-Boat Owner

 A pro se plaintiff was hired by an independent contractor for BP America, Inc., to work as a boat hand, installing, inspecting and maintaining floating booms in the waters of Orange Beach, Alabama.  The plaintiff received forty hours of hazwoper training before going to work.  Three days later, while checking and deploying floating booms, the plaintiff fell overboard.  He returned to the boat and continued working without seeking medical attention.  Nonetheless, his employment was terminated by the independent contractor for being an “unsafe and problem employee.”  Later, the plaintiff filed a suit for negligence under the Jones Act, maintenance and cure, and unseaworthiness.  He filed against BP.

On appeal, the Eleventh Circuit affirmed the district court’s grant of summary judgment to BP.  Employment is an essential element of a Jones Act and maintenance and cure claim.  The plaintiff bore the burden of probing that BP was his employer.  He could not do so.  Among other things, BP had no control over the plaintiff’s work as he was employed by an independent contractor.

The Eleventh Circuit also rejected the plaintiff’s unseaworthiness claim.  Under general maritime law, a shipowner has an absolute duty to furnish a seaworthy ship.  A seaman who is injured because of an unseaworthy condition on a ship has a right of recovery against the owner of the vessel beyond maintenance and cure.  Here, there was no evidence demonstrating that BP owned the boat that the plaintiff fell from, or that there was an unsafe condition from the boat.  The only “evidence” that the plaintiff submitted was a self-serving and conclusory affidavit.  That was not enough.

Smith v. BP America, Inc., No. 12-12031 (11th Cir. Jul. 5, 2013) (unpublished)

Injured Seaman’s Duty to Mitigate His Damages

The employer of a seaman injured while serving the mission of the vessel is required to pay the seaman maintenance (and generally stated as an amount equal to his food and lodging) and cure (his medical expenses) until he has been declared by his treating physician as having reached maximum medical improvement (MMI).  The obligation to pay maintenance and cure is triggered when the seaman becomes ill or injured in the service of the vessel.  It is owed irrespective of whether he is injured due to negligence of the employer or unseaworthiness of the vessel or if he was injured due to the act of some third party.  Further, because seaman have historically been considered “wards of the court,” their right to receive maintenance and cure is closely guarded and the courts will order it paid in all but the most blatant circumstances, such as when a seaman is injured by his own intentional misconduct.  Frankly, it is rare when an employer is able to successfully defend a lawsuit brought by a seaman to recover maintenance and cure.  If it is a close call, the courts invariably will side with the seaman.

However, several federal judges in the Eastern District of Louisiana have recognized that seamen do have reciprocal obligations they must fulfill or risk losing receipt of the benefit.

In Parker v. Atlantic Sounding (heard before Judge Barbier), the seaman injured his hand when it was caught in a line while working on a dredge on the Mississippi River.  He was taken to a doctor, treated, and released to return to light duty.  Parker did return a couple of days later, and was given the job of sitting in the control room of the dredge and sweeping the galley.  He was paid his full wage.  He stayed for half a day and quit without notice, later claiming that he did not think it was safe for him to work because he was on medication, and that the sweeping conflicted with his doctor’s orders.  Atlantic Sounding petitioned the court for a ruling that Parker had forfeited his right to receive maintenance and cure when he walked off the job unannounced.  The court sided with Atlantic.

In his ruling Judge Barbier noted prior decisions which held that if a seaman is able to work and/or is working in spite of the fact that he may still be under a doctor’s care, then the employer should not be required to pay maintenance.  The rationale is based on the idea that the seaman has the duty to mitigate his damages, coupled with the premise that if the seaman if fit enough to work, then there is no reason to award him maintenance for periods when his sustenance is provided by others.

Parker argued that he was unemployed after he left Atlantic, and was not receiving sustenance from others.  Judge Barbier ruled that Parker had forfeited his right to maintenance because he failed to mitigate his losses by voluntarily quitting his job.  If he thought that he could not do the tasks he was assigned, Parker should have brought this to the attention of his supervisor, who could have found tasks compatible with his abilities.  The judge found that Atlantic did what it could to ensure that Parker could afford food and lodging by offering the same pay as before his injury, and accommodating his medical restrictions.  The court also made it clear that Atlantic’s duty to pay cure was not affected when Parker walked off the job, and it was still owed.

In Green v. Florida Marine Transporters, Inc., Judge Zainey was faced with a similar factual scenario.  There, Green claimed he injured his hand while working as a tankerman.  He filed suit and asked for a jury trial.  Green’s doctor released him to return to light duty work.  Florida gave him an office job and his regular pay while convalescing.  Green quit, and Florida moved the court for a ruling that he had forfeited his right to maintenance and cure.

Judge Zainey did not rule on the merits since this was a case to be tried to a jury, the issue would be more appropriately left to the jury to decide.  However, the judge stated that if the evidence shows Green quit the job “because he didn’t feel like working anymore,” then he forfeited his right to maintenance.  Florida also argued that Green forfeited his right to cure because he abandoned the care being provided by his physical therapist.  Again the judge did not rule, preferring to leave the issue to the jury.  But he stated that if Florida “can establish that Green’s failure to pursue the additional therapy compromised his reaching MMI or that by undergoing the additional therapy Green would have mitigated the problems he continues to have with his finger, then perhaps this will form the basis for forfeiting additional cure.”

More recently Judge Zainey denied a seaman maintenance.  In Domjan v. Setton Construction, the employer offered the injured seaman a suitable light duty office job following his surgery.  Domjan declined.  The employer argued that when he declined, he forfeited his right to maintenance.  The case went to trial, and the jury found that the employer offered the appropriate job, and when Domjan rejected it he forfeited his right to maintenance.  Domjan asked the judge to overturn the jury’s decision.  In refusing to do so, Judge Zainey stated that “plaintiff is correct that maintenance is owed until the seaman reaches MMI and does not terminate simply because he becomes medically fit for light duty.  Plaintiff’s maintenance payments were forfeited because the jury made a factual finding that he had been offered a light duty position that he could have taken, but that he declined without medical justification.”  He also noted that the job must be compatible with the seaman’s medical condition, and that the employer cannot absolve itself of its maintenance obligation by forcing the seaman back to work to the detriment of his health.

The lesson for employers to take from these cases is that in the appropriate situation, making light duty job accommodations for the injured employee can be to their benefit.  The employee is engaged in his work, and a positive company environment to which he continues to contribute.  The duty to pay maintenance ceases.  And should the injured employee quit for non-medical reasons, the likelihood is that the duty to pay maintenance will cease.  The offer of a light duty job should be made in writing to the employee, signed and dated by the employer and employee.  If refused, the reasons for refusal should be noted, and the document made part of the employee’s personnel file.