Summary
concluding that a motion for maintenance and cure may be disposed of by summary judgment if there is no dispute of material fact
Summary of this case from Bailon v. AACH Holding Co.Opinion
No. C-03-4500 MJJ.
August 16, 2004
ORDER DENYING PLAINTIFF'S MOTION FOR PAYMENT OF MAINTENANCE AND CURE
Before the Court is Plaintiff Warren Blake's Motion for Maintenance and Cure in this maritime personal injury action against Defendants Douglas Cairns, Tami Cairns and F/V Sea Quest. Plaintiff contends that he is entitled to maintenance and cure before trial on the merits of his claims. However, Defendants contend that triable issues of fact remain as to the circumstances and costs associated with Plaintiff's injury and therefore the motion must be denied. For the following reasons, Plaintiff's motion is hereby DENIED.
LEGAL STANDARD
Maintenance and cure is the obligation imposed on a shipowner, which results from a contract between the seaman and the shipowner or vessel, to pay a seaman who is ill or injured while in the service of the ship "wages to the end of the voyage and subsistence, lodging and care to the point where the maximum cure attainable has been reached." Martin J. Norris, The Law of Seamen § 26:2 (4th ed. 1985). To recover maintenance and cure, a plaintiff must show that he was working as a seaman, he became ill or injured while in the vessel's service, and he lost wages or incurred expenses relating to the treatment of the illness or injury. West v. Midland Enterprises, Inc., 227 F.3d 613, 616 (6th Cir. 2000). Generally, "[a] suit for maintenance and cure presents questions of fact. It should not be disposed of by summary judgment nor should payment be decreed on motion." The Law of Seamen § 26:21; see also Bloom v. Weeks, 225 F. Supp.2d 1334, 1336 (M.D. Fla. 2002) (denying a pre-trial motion for payment where no showing of absence of disputed material fact). However, if there is no dispute of material fact, then the claim may be disposed of by summary judgment. Id.
FACTUAL BACKGROUND AND ANALYSIS
The basic question before the Court is whether Plaintiff's request for maintenance and cure should be decided by the Court at this stage in the proceedings, or should be denied as premature. Plaintiff Warren Blake was an employed on a commercial fishing boat, the F/V Sea Quest, which was owned and captained by Defendant Douglas Cairns. Plaintiff contends that on February 12, 2003, while the sea craft was in navigable waters near the mouth of the Klamath River, he was injured when Captain Cairns descended a fixed ladder and stepped on Plaintiff's head and neck while he was bent over retrieving tools. Blake Depo. 29:3-18; 30:3-24. Plaintiff further contends that later the same day a similar incident occurred in which Defendant Cairns again stepped on Plaintiff's neck and head. Id. at 39:20-40:11. In a deposition, Defendant Cairns admitted that on February 9, 2003 Plaintiff "stepped underneath me twice that day when I was coming down the ladder off the house. And later that afternoon, he complained of dizziness; and I brought him back to the port." Cairns Depo. 73:13-74:1.Plaintiff argues that he suffered debilitating injury as a result of Captain Cairns' actions, and that he is entitled to maintenance and cure because he can not continue work on the ship and has incurred expense as a result of the incident. Specifically, he attempts to show that he received state disability payments based on a doctor's certification of disability ( see Blake Decl. ¶ 4, Blake Decl. Ex. C), that several doctors have evaluated him as having neck pain ( see Brodsky Decl. E's. 4-8), and that he was charged for services at the Patd. medical clinic and for other medical evaluations ( See Brodsky Decl. Ex. 11). From this, he concludes that he is entitled to maintenance and cure as a matter of law. Reply 9:9-11.
Plaintiff does not move for summary adjudication of the maintenance and cure issue, but alludes to the fact that the Court could construe the motion as such. Both parties have submitted evidence outside the pleadings with respect to this issue, and to the extent the evidence is relevant it will be considered. The Court declines to convert the motion into one for partial summary judgment, but notes that the result reached here would not be different had the Court converted the motion and resolved it under Rule 56.
Defendants argue that Plaintiff is not entitled to maintenance and cure at this time because there is a triable issue of fact as to whether any injury occurred, whether costs were incurred as a result of the incidents, and whether he has reached maximum medical recovery. They contend that Plaintiff was not injured because he continued to work on the ship, did not inform them of any ongoing injury, did not see a doctor until several months afterwards, and fraudulently concealed a pre-existing neck condition at the time of him employment on the ship. They further contend that he has incurred no maintenance and cure costs because he lives with his father and any medical services were free due to Plaintiff's status as a Native American, and that any payment may be offset by state disability payments.
Much of Defendants' opposition brief is devoted to pointing out inconsistencies in Plaintiff's evidence, such as the alleged date of the incidents, whether or not alleged witness Allen Gates was on board the vessel at the time of the accidents, and how high the seas were on the date in question. However, Defendants have presented no contradictory evidence beyond their own assertions demonstrating that Gates was no longer employed by Defendants on the date of the accident or that the sea swells were other than as he testified. Without affirmative evidence, these bald assertions lend little support to Defendants' argument.
Defendants also rely on the deposition of Gabriel Lopez, a bartender at a bar frequented by Plaintiff, as well as depositions of other non-percipient witnesses who relayed personal observations of Plaintiff's conduct in the months following the accident indicating that Plaintiff was not injured. Opp. 1-2. Plaintiff has objected to the depositions on the ground that much of this testimony is speculative or inadmissible hearsay. However, to the extent that these statements are admissible, they may present at least circumstantial evidence indicating that Plaintiff's neck was not injured in the months following the February incident on the boat that could create a fact question.
More persuasively, Defendants point to a statement made by Dr. Clifford Rossbach, an orthopedic surgeon hired by Defendants to perform an evaluation of Plaintiff, who stated on February 12, 2004 that Plaintiff is "as capable of working on a fishing boat as he ever was. There is nothing to treat." Brodsky Decl. Ex.6, p. 3. Defendants note that the medical reports relied on by Plaintiff do not expressly indicate whether or not Plaintiff could perform his duties aboard the ship, but merely show that Plaintiff saw a doctor and began complaining of neck pain and dizziness more than six weeks after the alleged incident and that further tests were recommended. Defendants argue that Dr. Raisbeck's statement creates a question of fact as to whether Plaintiff was actually injured aboard the ship, and so a decision on maintenance and cure must await a decision by the trier of fact. This argument has merit in that weighing Dr. Rossbach' evaluation against the medical opinions relied on by Plaintiff involves a consideration of the evidence that is within the trier of fact's, not the Court's, domain.
Defendants also argue that Plaintiff has presented no evidence that he incurred any maintenance or cure costs after the alleged injury. Generally, in order to be awarded maintenance, Plaintiff must set forth some evidence of his living expenses. See Ritchie v. Grimm, 724 F. Supp. 59, 61 (E.D.N.Y. 1989). Here, there is no evidence before the Court as to Plaintiff's cost of maintenance other than Defendant's bald assertion that he incurs none because he lives with his father. Therefore, Defendants have not sustained their burden of establishing evidence that Plaintiff has not incurred expenses as a result of the injury. If such a remedy is owed, the Court is unable to determine the appropriate amount of maintenance and cure on this record.
With respect to cure, Defendants argue that Plaintiff has incurred no cure expenses because any treatment is free due to his status as a Native American. Dr. Dennie Schultheis, an employee of United Indian Health Services who saw Plaintiff, testified that "[a]s long as you're a California Indian, all the services are free." Fiore Decl. Ex. 1 p. 4. However, the invoices submitted by Plaintiff show that he was billed $71.81 per visit for at least four visits. See Brodsky Decl. Ex. 11. Plaintiff also contends that he incurred expenses relating to evaluation by Dr. Dedo and Dr. Maukonen. However, Defendants argue that these consultations were not medically necessary and merely in furtherance of this litigation. The Court finds, upon review of the entire record, that there exist questions of fact that preclude disposing of the issues posed by the motion at this state of the proceedings. Bloom, 225 F. Supp. 2d 1334.
CONCLUSION
In light of the issues of fact remaining in this case, Plaintiff's motion for maintenance and cure is DENIED. Given the Court's disposition of this motion, Plaintiff's request for attorney's fees is hereby DENIED.
IT IS SO ORDERED.