Crow v. Cooper Marine & Timberlands Corp., Civil Action No. 07-0740-KD-C.

• Decision Date: 03 September 2009
• Docket Number: Civil Action No. 07-0740-KD-C.
• Citation: 657 F.Supp.2d 1248
• Court: U.S. District Court — Southern District of Alabama
• Parties: Phillip CROW, Plaintiff, v. COOPER MARINE & TIMBERLANDS CORPORATION, Defendant.

657 F.Supp.2d 1248

Phillip CROW, Plaintiff, v. COOPER MARINE & TIMBERLANDS CORPORATION, Defendant.

Civil Action No. 07-0740-KD-C.

United States District Court, S.D. Alabama, Southern Division.

September 3, 2009.

COPYRIGHT MATERIAL OMITTED

Dennis Michael O'Bryan, Gary William Baun, O'Bryan Baun Cohen, Birmingham, MI, for Plaintiff.

M. Kathleen Miller, Mark Brannon Roberts, Armbrecht Jackson LLP, Mobile, AL, for Defendant.

ORDER

KRISTI K. DuBOSE, District Judge.

This matter came before the Court for a non-jury trial on July 9, 2009. Upon consideration of the documentary and testimonial evidence presented at trial and all other pertinent portions of the record, the Court makes the following conclusions of law and findings of fact.

I. Procedural Background

This action is comprised of a Jones Act, 46 U.S.C. § 30104 claim for negligence and maritime claims for unseaworthiness maintenance, cure, and lost wages, which fall within meaning of Rule 9(h) of the Federal Rules of Civil Procedure. Accordingly, this Court's jurisdiction obtains pursuant to 28 U.S.C. §§ 1331 & 1333.

On October 15, 2007, Plaintiff Phillip Crow ("Plaintiff" or "Crow") initiated this litigation by filing a Complaint against Cooper Marine & Timberlands Corp. ("Defendant" or "Cooper Marine"), a wholly owned subsidiary of Cooper/T. Smith Corporation. (Docs.1, 10). Plaintiff seeks recovery for damages allegedly caused when Crow "injured his left knee when he slipped while stepping onto the port push knee of [Defendant's ...] vessel [the CRIMSON WHITE] because Cooper Marine failed to provide a safe means of ingress and egress to the vessel." (Doc. 73).

Plaintiff claims that the following amounts are due and owing from Defendant: (1) $33,201.04 worth of past lost wages; (2) $435,000.00 as compensation for past and future pain and suffering; and (3) $ 12,140.00 of maintenance¹ payments owed for the time period October 17, 2007 to June 30, 2009. As such, Plaintiff seeks recovery of the sum of $ 480,341.04, plus attorney's fees and punitive damages.

II. Conclusions of Law

A. Jones Act Negligence

To recover under the Jones Act for negligence, Plaintiff must prove each of the following by a preponderance of the evidence:

(1) that at the time of the alleged injury the Plaintiff was acting in the course of employment as a member of the CRIMSON WHITE's crew;

(2) that Cooper Marine was "negligent" as claimed; and

(3) that such negligence was a "legal cause" of damage sustained by the Plaintiff. 46 U.S.C. § 30104; Stewart v. Dutra Const. Co., 543 U.S. 481, 487 [125 S.Ct. 1118, 160 L.Ed.2d 932] (2005); Cain v. Transocean Offshore USA., 518 F.3d 295, 298 (5th Cir.2008).

B. Unseaworthiness

In order to prevail on a claim of unseaworthiness, Crow must prove each of the following by a preponderance of the evidence:

(1) that the vessel was unseaworthy, as claimed; and

(2) that the unseaworthy condition was a legal cause of damage to the Plaintiff.

Stewart, 543 U.S. at 487, 125 S.Ct. 1118 (citing The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903)).

C. Maintenance and Cure

1. A shipowner is obliged to pay "[m]aintenance and cure" as a result of "the contract between the seaman and the shipowner or vessel, to pay a seaman, who is ill or injured while in the service of a ship, `wages to the end of the voyage and subsistence, lodging and care to the point where the maximum cure attainable has been reached.'" Bloom v. Weeks Marine, Inc., 225 F.Supp.2d at 1335 (M.D.Fla.2002) (quoting Norris, supra, at § 26:2).

2. A vessel owner's duty to provide maintenance and cure embraces not only the obligation to provide a subsistence allowance and to pay for medical expenses actually incurred by the seaman, but to take all reasonable steps to insure that the seaman, when he is injured or becomes ill receives proper care and treatment. Gaspard v. Taylor Diving & Salvage Co., Inc., 649 F.2d 372, 375 (5th Cir.1981); Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir.2002); Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1500 (5th Cir. 1995).

3. To recover for maintenance and cure, Crow must show that:

(a) an injury or illness occurred while Plaintiff was in the service of the vessel on which the Plaintiff was employed as a seaman; and

(b) the injury or illness occurred without willful misbehavior by Plaintiff.

Stevens v. McGinnis, 82 F.3d 1353, 1357-58 (6th Cir.1996); Bloom v. Weeks Marine, Inc., 225 F.Supp.2d 1334, 1335 (M.D.Fla. 2002) (citing 2 Martin J. Norris, The Law of Seamen § 26:1 (4th ed. 1985)); Adams v. Texaco, Inc., 640 F.2d 618, 620 (5th Cir.1981)²; Garay v. Carnival Cruise Line, Inc., 904 F.2d 1527, 1530 (11th Cir. 1990).

4. A seaman is not barred from recovering maintenance and cure when he is "forced by financial necessity to return to his regular employment." Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Yates v. Dann, 223 F.2d 64, 67 (3d Cir.1955); Koslusky v. United States, 208 F.2d 957 (2d Cir.1953).

5. However, an vessel owner who has dutifully paid maintenance and cure up until the time an injured seaman resigns from his or her employ is not bound to pay maintenance during subsequent periods when the seaman is employed in his or her accustomed trade by another vessel but has not yet reached maximum medical improvement: when a seaman is "fit enough to work by his own choice in his accustomed trade, there is no reason to award him maintenance for periods in which his sustenance was provided by others," if "such employment is by the seaman's choice and not a result of the original employer's willful failure to perform its maintenance and cure obligations." Dowdle v. Offshore Express, Inc., 809 F.2d 259, 266 (5th Cir.1987) (citing Johnson v. United States, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468 (1948)); see also Koslusky, 208 F.2d at 958 (affirming a maintenance award that "exclud[ed] of course periods when the [seaman] was hospitalized and when he was serving on [a] second ship."). The original vessel owner must pay maintenance during any periods of unemployment that predate maximum medical improvement. Koslusky, 208 F.2d at 958.

6. The original shipowner's obligation to pay cure, that is medical expenses and the cost of medical treatment, continues unabated despite a seaman's reemployment. See Koslusky, 208 F.2d at 958; Dowdle, 809 F.2d at 266 (affirming the district court's cure award, which covered a treatment that had been paid for by the seaman under his private insurance policy, rather than by another employer).

7. If a vessel owner acts "in bad faith, callously, or unreasonably" in refusing to pay maintenance and cure, he becomes liable to the seaman for attorney's fees. Flores v. Carnival Cruise Lines, 47 F.3d 1120, 1127 (11th Cir.1995). In particular, laxness in investigating a claim for maintenance and cure supports an award of attorney's fees. Hines v. J.A. LaPorte, Inc., 820 F.2d 1187, 1189 (11th Cir.1987).

8. When a vessel owner abrogates an established legal duty, he or she exhibits willful and wanton misconduct justifying an award of punitive damages. Flores v. Carnival Cruise Lines, 47 F.3d 1120, 1127 (11th Cir.1995) (citing Hines v. J.A. LaPorte, Inc., 820 F.2d 1187, 1188 (11th Cir.1987)).

III. Findings of Fact

At trial, the parties presented documentary evidence and the deposition testimony of William "Bo" Butler, who was employed as a deckhand aboard Defendant's vessel the CRIMSON WHITE and who worked with Plaintiff on that boat (Pl.'s Tr. Exh. 15); Captain Leland Kyle Thorn, who worked alongside Plaintiff aboard Defendant's vessel the NONNIE (Pl.'s Tr. Exh. 16); Dr. Steven Andrews, M.D., a physician practicing emergency medicine who conducted a merchant mariner physical examination of Crow prior to his employment by Defendant (Pl.'s Tr. Exh. 10 and Exh. 1 to Andrews Dep.); Dr. Raymond Lee Nichols, M.D., an orthopedic surgeon practicing at Shoals Orthopedic, who operated on Plaintiff's left knee on or about August 20, 2007 (Pl.'s Tr. Exh. 11); and Dr. Jay R. Solorio, M.D., an orthopedic surgeon who performed surgery on Plaintiff's left knee on March 27, 2009 (Pl.'s Tr. Exh. 13). The parties also introduced portions of the deposition testimony of Dr. Donald E. Beach, M.D., a family medicine practitioner who treated Crow's left knee pain and referred Plaintiff for treatment of his left knee pain to both Shoals Orthopedic, P.C. and Dr. Solorio. (Pl.'s Tr. Exh. 12). Live testimony was presented by Plaintiff Phillip Crow, who Defendant employed as pilot of Cooper Marine's vessel the CRIMSON WHITE at the time of the alleged accident; Captain Richard "Ricky" E. Wyatt, Captain of the CRIMSON WHITE; Marcus Hood, Deckineer aboard the CRIMSON WHITE; Gerald Bowe, a former deckhand aboard the CRIMSON WHITE; and Bobby Wayne ("Bob") Pittman, Vice-President and Claims Director for the Cooper Group of Companies. Below, the Court sets forth its findings of fact in this case, based upon the testimony and evidence submitted at trial.

A. Plaintiff's Background

The court accepts as true the following account of Plaintiff's professional and health background, which is based primarily on Plaintiff's testimony and is uncontradicted by any evidence adduced at trial.

Plaintiff began working in the towing industry in 1986 or '87 as a deckhand. Over the subsequent twenty some-odd years, Crow worked for a series of towing companies on a number of different boats, rising through the ranks of second mate, first mate, steersman, pilot, and captain. At the time of the alleged accident, Plaintiff was employed by Cooper Marine as a pilot aboard the M/V CRIMSON WHITE.

Plaintiff first came to work for Cooper Marine as a contract pilot on or about January 24, 2006. Before he began work, Defendant required Crow to undergo a merchant mariner physical examination. Dr. Stephen Andrews performed this exam on January 23, 2006. On or about March 21, 2006, Cooper Marine retained Crow as a full-time pilot with a...