Opinion
CIVIL ACTION NO. 98-3497
August 4, 2000
ORDER AND REASONS
Defendant Gulf DuMar Marine, Inc. filed a motion for partial summary judgment seeking to dismiss plaintiff Randean Henry's claim for maintenance and cure. Henry allegedly injured his back in a fall while working as a deckhand aboard the M/V DUMAR. Gulf DuMar asserts three grounds for summary judgment: (1) Henry reached maximum medical cure; (2) Henry is owed no maintenance or cure because he is incarcerated and has no actual expenses; (3) Henry has forfeited any right to maintenance and cure because he knowingly misrepresented or concealed a previous back injury.
In accordance with Uniform Local Rule 56.1, Gulf DuMar submitted a Statement of Uncontested Material Facts. Under the Local Rule 56.2E, the party opposing a motion for summary judgment "shall include a separate, short, and concise statement of the material facts as to which there exists a genuine issue to be tried." In the absence of such opposing statement, "[a] 11 material facts set forth in the statement required to be served by the moving party will be deemed admitted, for purposes of the motion, unless controverted as required by this rule."
Henry did not comply with Rule 56.2E. Therefore, the court has the authority to deem admitted the facts set forth in Gulf DuMar's statement. As written, Gulf DuMar's statement would entitle it to summary judgment on the issues of maintenance and cure. In the interest of justice, however, the court will overlook Henry's procedural default and examine the record to determine if Gulf DuMar has made a prima facie showing of entitlement to summary judgment. The court also will consider the fact that Henry disputes in his opposition memorandum Gulf DuMar's Statement of Uncontested Facts numbers 4, 5, 6, 9, and 10.
Maintenance and cure is designed to provide a seaman with food and lodging when he becomes sick or injured in the ship's service. It extends during the period when he is incapacitated to do a seaman's work and continues until he reaches maximum medical recovery. Vaughan v. Atkinson, 369 U.S. 527, 530, 82 S.Ct. 997, 999, 8 L.Ed.2d 88 (1962). Recovery for maintenance and cure by a seaman is limited to amounts actually expended or liabilities actually incurred by him. Marine Drilling. Inc. v. Landry, 302 F.2d 127 (5th Cir. 1962)
Gulf DuMar paid maintenance and cure benefits to Henry from the date of his accident on October 26, 1998, through January 31, 1999. Gulf DuMar contends that Henry reached maximum medical cure on January 31, 1999, and he has not had any actual living expenses since that date due to his incarceration. See Ballard v. Alcoa S.S. Co., 122 F. Supp. 10 (S.D. Ala. 1954) (a seaman has no right to maintenance [and cure] when he is incarcerated and has incurred no actual expense or liability for his care and support)
Henry admits that he is not entitled to any maintenance or cure during the period of his incarceration, but he denies that he has reached maximum medical cure. Maximum medical cure is reached when "it appears that the seaman's condition is incurable, or that future treatment will merely relieve pain and suffering but not otherwise improve the seaman's physical condition." Pelotto v. L N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979).
Henry asserts that he is receiving medical treatment while in prison, but he did not submit any evidence to support his contention. He also maintains that he is in constant pain, and intends to seek proper medical treatment upon release from prison, but he does not indicate what the nature of such treatment might be.
Gulf DuMar's evidence in support of maximum cure, a January 25, 1999 report of Dr. J. Monroe Laborde, is inconclusive. He found that Henry's pain was non-organic and that surgery was not warranted, but stated that he "would like to review [Henry's] MRI films and EMG nerve conduction study report to see what effect they have on my opinion." He also suggested the use of anti-inflammatory medication. Gulf DuMar submitted a copy of Henry's MRI, but there is no evidence that Dr. Laborde ever reviewed it or, if he did, whether it altered his opinion. Accordingly, the court finds that Gulf DuMar failed to establish a prima facie case of maximum medical cure and therefore, Henry's lack of evidence to show that he has not reached maximum medical cure is immaterial.
A seaman who intentionally misrepresents or conceals material facts from an employer when applying for work forfeits his right to maintenance and cure. McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir.), cert. denied, 393 U.S. 894, 89 S.Ct. 223, 21 L.Ed.2d 175 (1968)
In determining whether a seaman has forfeited his rights, the courts look to see whether: (1) the seaman intentionally misrepresented or concealed facts from an employer while at work; (2) there is a causal link between the withheld information and the complaints of injury; and (3) the misrepresented or undisclosed facts are material to the employer's decision to hire the seaman. Parker v. Noble Drilling Corp., CIV. A. No. 9801196, 1999 WL 104414 (E.D. La. Feb. 19, 1999); McCorpen, 396 F.2d at 548.
Henry had to complete a medical history form as part of his employment application. While he checked "No" to the form questions about having had any prior back injury, he also checked "Yes" to questions about having received benefits under workman's compensation and having had prior surgeries. This evidence creates a genuine issue of material fact about Henry's intent to misrepresent or conceal. Accordingly, summary judgment on the basis of forfeiture is not justified.
Accordingly,
IT IS ORDERED that Defendant Gulf DuMar Marine, Inc.'s Motion for Partial Summary Judgment is DENIED.