Opinion
CIVIL ACTION NO. 03-0018
March 9, 2004
SECTION "K" (4)
Before the Court is a Motion for Partial Summary Judgment (Rec. Doc. 64) filed by defendant Jen Marine, L.L.C., Having reviewed the pleadings, memoranda, and relevant law, the Court DENIES defendant's motion.
I. BACKGROUND
Plaintiffs filed the instant Jones Act suit claiming that Larry Kerner was injured when the M/V ERIN ELIZABETH flipped and sank in Lake Pontchartrain. Kerner, who was the captain aboard that vessel, alleges that the accident caused injuries to his neck, back, and head, as well as post traumatic stress disorder. Negligence on the part of the defendant, Jen Marine, L.L.C. ("Jen Marine"), owner/operator of the M/V ERIN ELIZABETH, caused the accident, according to plaintiffs.
Plaintiff Kerner has a documented history of head, neck, and back injuries pre-existing the commencement of his employment with Jen Marine in 2002. In 1986, Kerner injured himself on a barge, resulting in an anterior cervical fusion, diskectomy and a low back fusion posteriorly at three levels. Kerner sued his employer at that time, Hugh Eymard Towing, as a result of his 1986 accident and received a settlement. In 1994, Kerner was again injured on the job. He sued another employer, Bergeron Marine, and again settled. The 1994 accident resulted in injuries to Kerner's back, neck, head, and arms. In August 1995, plaintiff Kerner underwent a cervical medial branch neurotomy at three levels performed by Dr. Kenneth Vogel. Dr. Vogel restricted Kerner to a narrow range of medium to light work.
In 1996, plaintiff Kerner applied for social security disability benefits, stating: "I suffered a severe injury in an offshore accident. As a result, I know (sic) have plates in my back and underwent laser surgery. There is no possibility of further treatment and my physician has rendered me permanently and totally disabled." Exhibit "J," Reconsideration of Disability Report. On reconsideration of Kerner's disability claim, the administrative law judge found that Kerner was disabled since at least October 16, 1997, and is "unable to perform his past relevant work as a tug boat captain." Exhibit "G," Decision, Office of Hearings and Appeals, page 2-4. At the time defendant hired plaintiff Kerner and at the time of the M/V ERIN ELIZABETH'S sinking, Kerner was receiving social security disability benefits.
Defendants claim that the above facts prove that Kerner was physically unqualified for employment as a tug boat captain at the time of his employment with Jen Marine and at the time of the accident. Defendants claim, citing the Declaration of Jen Marine owner Neil Wiseman, that Kerner intentionally concealed his prior injuries from Jen Marine, who would not have hired plaintiff if Wiseman had known of Kerner's relevant medical history and disability status. Kerner, through his Affidavit, disputes this claim by essentially stating that Wiseman's Declaration is contrived and misleading. Kerner alleges that Wiseman, plaintiff's longtime acquaintance, knew of plaintiff's prior injuries.
On January 3, 2003, plaintiff Kerner filed the instant suit in this Court seeking, inter alia, maintenance and cure benefits. Defendant Jen Marine filed this Motion for Partial Summary Judgment on November 19, 2003, disputing plaintiffs entitlement to maintenance and cure benefits.
II. LAW AND ANALYSIS
Summary judgment should be granted "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248(1986).
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service Supply. Inc., 828 F.2d 291, 294 (5th Cir. 1987).
Jen Marine moves for Summary Judgment dismissing the maintenance and cure claims of plaintiff, Larry Kerner, claiming that plaintiff knowingly concealed pertinent medical information from Jen Marine in his application for employment. In support of its argument for summary judgment, defendants cite the United States Fifth Circuit Court of Appeals, which has held that:
where the shipowner requires a seaman to submit to a pre-hiring medical examination or interview and the seaman intentionally misrepresents or conceals material medical facts, the disclosure of which is plainly desired, then he is not entitled to an award of maintenance and cure. Of course, the defense that a seaman knowingly concealed material information will not prevail unless there is a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage.McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968), cert. denied, 393 U.S. 894 (1968).
Courts construing McCorpen, have held that to prevail on a summary judgment dismissal of a maintenance and cure claim, an employer must prove: (1) that the plaintiff intentionally misrepresented or concealed medical facts; (2) that the undisclosed facts were material to the employer's decision to hire the plaintiff; and (3) that a connection exists between the withheld information and the injury complained of in the instant suit. In the Matter of L.S.K. Towing, Inc., 1995 WL 350039 (E.D.La. 1995); Lancaster Towing. Inc. v. Davis, 681 F. Supp. 387, 389 (N.D. Miss. 1988). A fact is material if it could have altered the employer's hiring decision. Russell v. SeacorMarine, Inc., 2000 WL 1514712, *3 (E.D. La. 2000) (citing L.S.K. Towing, 1995 WL350039 at *2); Lancaster Towing, 681 F. Supp. at 288.
In the case at bar, summary judgment is inappropriate because defendants have failed to show that there is no genuine issue as to any material fact regarding whether Kerner intentionally misrepresented or concealed medical facts and whether the undisclosed facts were material to the Wiseman's decision to hire the plaintiff. Defendants have provided the Court with a lengthy enumeration of plaintiff's previous medical woes and disqualifications from employment as a tug boat captain. Also, defendants have presented the Declaration of Wiseman suggesting that defendant Jen Marine would not have hired plaintiff Kerner if he had disclosed his medical history. Such information supports defendants' position under McCorpen. However, this evidence is controverted by Kernels Affidavit. Plaintiff Kerner testified that he told Wiseman of his previous medical problems and that Wiseman nevertheless hired Kerner without a pre-employment application or a physical examination. Kerner's Affidavit, along with the fact that defendant hired plaintiff without an application or physical, gives rise to genuine issues of material fact sufficient to defeat summary judgment. Thus, Jen Marine is not entitled to a judgment as a matter of law regarding maintenance and cure benefits. Accordingly,
IT IS ORDERED that the Motion for Partial Summary Judgment (Rec. Doc. 64) filed by defendant is hereby DENIED.