Opinion
Civil Action No: 02-2153 Section "R"(1)
February 14, 2003
ORDER AND REASONS
Before the Court is the motion of Rene Cross Construction for partial summary judgment on Percy Parker's claim for maintenance and cure. For the following reasons, the Court grants Cross motion.
I. Background
Parker applied for employment with Cross on August 22, 2001. On August 28, 2001, as part of the employment process, Dr. Philippe Logagho conducted Parker's pre-employment physical examination. Parker admitted to a lumbar incident that occurred four years earlier, and indicated that he underwent successful surgery for it in 1996. Dr. Logagho determined that Parker was in condition for employment with Cross. Parker did not mention in the examination that he was, at that time, receiving treatment from Dr. John Watermeier on his neck, back and knee as a result of an accident that occurred in 1999. Had Dr. Logagho known of Parker's condition, he would not have cleared Parker for employment with Cross.
On January 31, 2002, Parker was working aboard the J/B CROSSBOW when, in heavy fog, the vessel collided with the M/V SUNDOWNER, allegedly causing injuries to Parker. Cross moves for partial summary judgment on Parker's claim for maintenance and cure.
Although Parker's Answer and Claim makes no mention of a request for maintenance and cure, Parker does not dispute that maintenance and cure is at issue in this lawsuit.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993). A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See Hunt v. Rapides Healthcare System, LLC, 2001 WL 1650961 (5th Cir. 2001) (citations omitted)
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
B. Discussion
"Maintenance and cure is a contractual form of compensation given by general maritime law to a seaman who falls ill while in the service of his vessel." McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968). Maintenance and cure may be awarded "even where the seaman has suffered from an illness prep-existing his employment." Id. Nevertheless, "there is a general principle that it will be denied where he knowingly or fraudulently conceals his illness from the shipowner." Id.; Bodden v. Professional Divers of New Orleans, Inc., 2001 WL 1223589, *2 (E.D.La. 2001); see also Wactor v. Spartan Transportation Corp., 27 F.3d 347, 352 (8th Cir. 1994) (adopting the McCorpen standard in the Eighth Circuit). Specifically, when the shipowner requires a prospective seaman to undergo a pre-hiring medical examination, and the seaman either intentionally misrepresents or conceals material medical facts, then the seaman is not entitled to an award of maintenance and cure. McCorpen, 396 F.2d at 549. The shipowner is entitled to this defense only when (1) the seaman has intentionally misrepresented or concealed medical facts; (2) the misrepresented or concealed facts were material to the employer's hiring decision; and (3) there exists a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage. McCorpen, 396 F.2d at 549; Russell v. Seacor Marine, Inc., 2000 WL 1514712, *2 (E.D.La. 2000).
Cross produces uncontradicted evidence that Parker concealed information pertaining to the condition of his neck, back and knee. Dr. Logagho, who conducted the pre-employment physical examination, testified that Parker disclosed that he had surgery on his lower back in 1996, but that Parker also indicated that he "had no back pain." (Cross' Mot. for Partial Summ. J., Ex. B, Dep. of Dr. Philippe Logaglio, at 7.) Although he was asked about his physical condition, Parker did not disclose that he was under the care of an orthopedist, Dr. Watermeier, for neck, back and knee problems. ( Id. at 8; Cross' Mot. for Partial Summ. J., Exs. C and D.) Nor did Parker disclose that he was taking prescription pain medication. ( Id., Ex. B at 8; Exs. C and D.) At the time, Dr. Watermeier listed Parker's disability status as "total temporary." ( Id., Ex. C.) Parker asserts that he never told Dr. Logagho that he was healthy. Parker does not, however, bring evidence that he disclosed his neck, back and knee problems to Dr. Logagho. (Parker's Opp. to Cross' Mot. for Summ. J., Dep. of Percy Parker.) Accordingly, the record reflects that Parker concealed medical facts.
Cross also produces uncontradicted evidence that the concealed facts were material to the hiring decision. Dr. Logagho testified that had he known of Parker's neck, back and knee problems, he would not have cleared Parker for employment. (Dep. of Logaglio, at 9.)
As to whether there exists a causal relationship between the pre-existing condition and the alleged injuries, Cross asserts that when the pre-existing condition and the alleged injury involve the same body part, there is a presumption that the two are related. See, e.g., Caulfield v. Towing, 1989 WL 121586 (E.D.La. 1989); Quiming v. Int'l Pacific Enterprises, Ltd., 773 F. Supp. 230, 236 (D.Haw. 1990) ("there is no requirement that a present injury be identical to a previous injury"). The preexisting condition pertained to Parker's neck, back and knee. It is uncontested that the alleged injuries sustained by Parker while in the employ of Cross also involve Parker's neck, back and knee. (Cross' Statement of Uncontested Material Facts, ¶ 7.) Further, Parker does not contest the existence of a causal relationship. Accordingly, the Court finds that a causal relationship exists, and the Court grants Cross' motion for partial summary judgment.
III. Conclusion
For the foregoing reasons, the Court grants the motion of Rene Cross Construction for partial summary judgment on Parker's claim for maintenance and cure.