Summary
discussing the McCorpen defense
Summary of this case from Williams v. Magnolia Marine Transp. Co.Opinion
Civil Action NO. 01-795, SECTION "N"
October 11, 2001
ORDER AND REASONS
Before the Court is Plaintiff's Partial Motion for Summary Judgment. For the following reasons, the Motion is DENIED.
BACKGROUND
The plaintiff, Gary Bodden, is a deckhand for Professional Divers of New Orleans, Inc. On December 24, 2000, the plaintiff was in the engine room of the M/V STERLING PONY where he was injured when an unsecured deck plate shifted causing him to fall. Following the incident, the plaintiff sought treatment for shoulder and lower back pain. The plaintiff asserts that the defendant failed to authorize payment of or reimbursement for medical expenses associated with the accident after demand was made for payment on July 25, 2001.
STANDARD OF REVIEW
Summary Judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of fact exists where the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the burden of demonstrating an absence of evidence to support the non-movant's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). To oppose a motion for summary judgment, the non-movant must set forth specific facts to establish a genuine issue of material fact, and cannot merely rest on allegations and denials. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2552. Factual controversies are to be resolved in favor of the non-moving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
LAW AND ANALYSIS
"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 Steamship, 396 F.2d 547, 548 (5th Cir. 1968). When a seaman is injured while in the service of his ship, the ship owner must pay him maintenance and cure, regardless of fault.Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir. 1987); Gaspard v. Taylor Diving Salvage Co., 649 F.2d 372, 374 n. 3 (5th Cir. 1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982). "This obligation includes paying a subsistence allowance, reimbursing medical expenses actually incurred, and taking all reasonable steps to ensure that the seaman receives proper care and treatment." Id.
Looking at the facts in a light most favorable to the plaintiff, the Court finds that there are genuine issues of material fact regarding the circumstances surrounding the plaintiff's injury which preclude summary judgment. Based on the facts as set forth by the plaintiff, demand for payment was made on July 25, 2001. However, the defendant argues that the plaintiff requested not to be paid maintenance and cure because it would affect the social security disability benefits he was already receiving. The plaintiff fails to address this issue. In addition, the defendant contends that the plaintiff had a pre-existing medical condition that could preclude entitlement to maintenance and cure. While maintenance may be awarded even though the seaman has a pre-existing condition, "there is a general public principle that it will be denied where he knowingly or fraudulently conceals his illness from the ship owner." McCorpen, 396 F.2d at 548. This defense will not preclude entitlement to maintenance unless the misrepresented or undisclosed facts are material to the employer's decision to hire. Id. There are no facts before the court to resolve this question, and the issue of whether the defendant would have hired the plaintiff given the pre-existing condition, if there is one, is a question of fact.
The plaintiff further contends that the defendant was arbitrary and capricious in failing to authorize the plaintiff's treatment and medication. This claim has no merit. The plaintiff has set forth no evidence in support of this position, and it is clear from the record that the defendant made several attempts to determine the plaintiff's medical condition and treatment.
While the law is clear that a seaman is entitled to maintenance and cure for injuries sustained on a vessel, the defendant also has the right to investigate the claim. Morales, 829 f.2d at 1358; McWilliams v. Texaco, Inc., 781 F.2d 514, 518-20 (5th Cir. 1986). The plaintiff did not make demand for payment until July 25, 2001. Since the defendant is entitled to investigate the medical claims of the plaintiff and in light of the allegations that the plaintiff had a pre-existing injury, summary judgment is inappropriate at this stage.
Accordingly, IT IS ORDERED that the plaintiff, Gary Bodden's Motion for Partial Summary Judgment is DENIED.