Deisler v. McCormack Aggregates, Co.

• Citation: 54 F.3d 1074
• Decision Date: 03 May 1995
• Docket Number: No. 94-5310,94-5310
• Parties: Francis A. DEISLER, Plaintiff-Appellee, v. McCORMACK AGGREGATES, CO.; Dredge "Sandy Hook", her boilers, engines, tackle, appurtenances, etc., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1074

54 F.3d 1074

1995 A.M.C. 2520

Francis A. DEISLER, Plaintiff-Appellee, v. McCORMACK AGGREGATES, CO.; Dredge "Sandy Hook", her boilers, engines, tackle, appurtenances, etc Defendants-Appellants.

No. 94-5310.

United States Court of Appeals Third Circuit.

Argued Oct. 31, 1994.

Decided May 3, 1995.

George J. Koelzer (Argued), Carolyn J. Shields, Lane Powell Spears Lubersky, Los Angeles, CA, for defendants-appellants McCormack Aggregates, Co.; Dredge "Sandy Hook".

George J. Cappiello (Argued), Paul T. Hofmann, Cappiello, Hofmann & Katz, Jersey City, NJ, for plaintiff-appellee Francis A. Deisler.

Before: GREENBERG, McKEE, Circuit Judges, and POLLAK, District Judge. ^*

OPINION OF THE COURT

McKee, Circuit Judge.

We are asked to decide, among other things, if a seaman's failure to disclose a prior injury on a job application causes the seaman to forfeit his entitlement to maintenance and cure. We hold that, under the circumstances presented here, no such forfeiture has occurred and we will thus affirm the district court's judgment.

I. FACTUAL BACKGROUND

McCormack Aggregates, Co. operates various dredging vessels in connection with its business of mining sand from the bottom of the sea. Francis Deisler is a seaman who is a member of International Union of Operating Engineers, Local 25-Marine Division. That union periodically refers workers to employers who operate dredging vessels and equipment. In 1982, Deisler injured his back while he was working on a dredge and he was disabled for about six months. Thereafter, he returned to jobs involving heavy physical labor including construction work, dockbuilding and dredging.

On August 3, 1988, while Deisler was working as a dredgeman for another boating company, his union referred him to McCormack where he filled out an application for a position as a boatman. That application included the following question: "Do you have any physical limitations which would hinder your performance in the position applied for?" Deisler did not answer the question. ¹ On June 12, 1989, some 10 1/2 months after he filled out the application, Deisler's union told him to report for work with McCormack on June 13. ² Deisler's application apparently was never reviewed. The sections on the bottom portion of the application labelled "Reviewed By" and "Approved By," which were for "office use only," were left blank.

Deisler was injured almost immediately after he began working for McCormack. The district court described the incident which caused his injury as follows:

On June 15, 1989, ... plaintiff suffered an injury while moving a wheelbarrow loaded with supplies along a path on McCormack's property. This job had been assigned to him by his supervisors, Messrs. Ellis and Melendez, who were, respectively, the tugboat's Captain, and the dredge's Dragtender.... The accident occurred when he [Deisler] rolled the wheelbarrow off the vessel side of the ramp, and the wheelbarrow's wheel went onto the sandy path. The wheelbarrow became unstable, stopped short, and fell onto its side, spilling its contents. Plaintiff's forward momentum caused him to tumble and fall over the stopped wheelbarrow. Immediately after his fall he felt a sharp pain in his back.

April 26, 1994, Findings of Fact, p 5.

The district court found that Melendez and Ellis saw this incident. ³ Both were in the dredge's dragtender's cabin which was a raised work platform which overlooked the location where Deisler fell. Melendez testified that Ellis ducked down when Deisler fell so that Deisler would not know that Ellis had witnessed the accident, and that Ellis told him (Melendez) that he had seen Deisler fall.

The following morning Ellis asked Deisler to move some heavy cables, but Deisler complained that his back was hurting. Deisler then left the vessel, went to the company's offices, and began filling out an accident report of his fall and the resulting back injury. Deisler then went to the office next door where he was given a dismissal notice which stated that he was being fired for unsatisfactory work performance.

Before Deisler left McCormack's offices, he took a New Jersey Disability Benefits claim form that he sent to his physician. Deisler's physician completed that form and returned it to McCormack after June 27, 1989. Thereafter, Deisler made a claim for maintenance and cure, and McCormack hired the maritime investigative firm of Lamorte and Burns, Inc. to investigate that claim. Lamorte was succeeded by American Maritime Consultants. ⁴ Following the investigation of Deisler's claim, both Lamorte and American Maritime recommended that McCormack pay Deisler the requested maintenance and cure, but McCormack refused and Deisler filed suit against McCormack and its dredge under the Jones Act, ⁵ and under the general maritime law.

Those two causes of action were tried simultaneously with the jury sitting as the finder of fact on the Jones Act claim and the court sitting as finder of fact on the general maritime claim. The jury found the defendants were not negligent and returned a verdict in their favor under the Jones Act. However, the district court granted plaintiff's motion for a new trial on the Jones Act claim but plaintiff elected to discontinue that cause of action in favor of his claim for maintenance and cure, and also for compensatory damages, under the general maritime law. The court ruled that plaintiff was entitled to maintenance and cure under general maritime law, and also awarded plaintiff compensatory damages based upon defendants' arbitrary and capricious denial of plaintiff's claim. The defendants ⁶ appeal from this judgment of the district court.

II. DISCUSSION

The district court had subject matter jurisdiction over this admiralty action under 28 U.S.C. Sec. 1333. We have appellate jurisdiction over the final judgment of the district court pursuant to 28 U.S.C. Sec. 1291. We review the district court's findings of fact under a clearly erroneous standard. See Sheet Metal Workers Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir.1991). However, our review of the district court's application of the law to these facts is plenary. See Tudor Dev. Group v. United States Fidelity & Guar. Co., 968 F.2d 357, 359 (3d Cir.1992).

A. Maintenance and Cure

The gravamen of McCormack's argument is that Deisler forfeited his right to maintenance and cure when he failed to disclose his prior back injury as requested on the employment application.

Maintenance and cure are rights given to seamen who become ill or injured in the service of a vessel. ⁷ "Maintenance is the living allowance for a seaman while he is ashore recovering from injury or illness. See Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 1000, 8 L.Ed.2d 88 (1962). Cure is payment of medical expenses incurred in treating the seaman's injury or illness. See Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 653, 82 L.Ed. 993 (1938)." Barnes v. Andover Co. L.P., 900 F.2d 630, 633 (3d Cir.1990). An employer's obligation to furnish maintenance and cure continues "until the seaman has reached the point of maximum cure, that is until the seaman is cured or his condition is diagnosed as permanent and incurable." Barnes, 900 F.2d at 633-34; see also Vella v. Ford Motor Co., 421 U.S. 1, 5, 95 S.Ct. 1381, 1384, 43 L.Ed.2d 682 (1975).

The origins of the duty to provide maintenance and cure have been traced to Justice Story in Harden v. Gordon, 11 F.Cas. 480, 482-83 (C.C.D.Me.1823). ⁸ The Supreme Court first recognized and defined these rights in The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903). ⁹ "The duty was derived from medieval maritime codes," Barnes, 900 F.2d at 633, and is interpreted in such a way as to afford injured seamen the maximum protection of the law.

Viewing seamen as wards of admiralty, the Court has emphasized that the right to maintenance and cure must be construed liberally and has consistently expanded the scope of the right. Thus, today a shipowner is obliged to pay maintenance and cure regardless of any fault on its part; only wilful misconduct on the part of the seaman will deprive him of its protection.

Id. (citations omitted). Although conditions have clearly changed since this concept was first introduced into law, the right of recovery for maintenance and cure has continued to be a fundamental component of the relationship between employees and employers at admiralty.

"[T]he seaman's right was firmly established in the maritime law long before recognition of the distinction between tort and contract."

[It is argued that] the rationale underlying the right of maintenance, which is predicated on the special status of seamen as "wards of the admiralty," is no longer valid. It is true that almost every case concerning the right to maintenance relies on Justice Story's description of the seaman as "generally poor and friendless, and acquir[ing] habits of gross indulgence, carelessness, and improvidence."

[It is also argued that] today those seamen who are unionized are neither friendless nor improvident.... Furthermore, the adjectives "friendless" and "helpless" were generally used to describe sailors in foreign ports

...

The changed circumstances of the unionized seaman may undercut the rationale supporting the traditional right to maintenance and cure, at least for unionized seamen. However, the Supreme Court has shown no inclination to depart from its long established solicitude for seamen. Until it does so, we see no basis to assume that the emergence of powerful seamen's unions, ... justifies our ignoring the Court's clear and frequent pronouncements that seamen remain wards of the admiralty.

Id. at 636-37 (citations omitted).

A shipowner's responsibility for maintenance and cure "extends beyond injuries sustained on board ship or during working hours to any injuries incurred in any place while the seaman is subject to the call of duty." Id. at 633; see also ...