Freeman v. Thunder Bay Transp. Co., Inc., Civ. A. No. 89-702-B.
| Decision Date | 18 April 1990 |
| Docket Number | Civ. A. No. 89-702-B. |
| Citation | 735 F. Supp. 680 |
| Parties | Jimmie Lou FREEMAN v. THUNDER BAY TRANSPORTATION COMPANY, INC. |
| Court | U.S. District Court — Middle District of Louisiana |
James A. George, George & George, Ltd., Sandrea L. Everett, Baton Rouge, La., for plaintiff.
Charles M. Steen, Trial Atty., Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for defendant.
RULING ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
On June 16, 1988, Jimmie Lou Freeman was employed as a seaman aboard the M/V CENTRAL, a vessel owned and operated by Thunder Bay Transportation Company, Inc. ("Thunder Bay"). Freeman was injured when she was thrown from her bunk while sleeping when the M/V CENTRAL lost rudder control and ran aground at Mile 168 of the Upper Mississippi River. As a result of the accident, plaintiff received injuries to her shoulder and neck and has allegedly incurred over $23,000 in medical expenses.
Freeman has filed this suit against Thunder Bay asserting claims under the Jones Act,1 and unseaworthiness under General Maritime Law. In addition, she alleges claims pursuant to General Maritime Law for maintenance and cure, as well as compensatory and punitive damages for the arbitrary and capricious withholding of maintenance and cure. Freeman has now filed this motion for partial summary judgment on the issue of maintenance and cure.
Summary judgment is appropriate when the court determines there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law.2
A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.3
After the initial showing of the basis for its motion, the party who has the burden of proof at the trial has the responsibility to present evidence supporting its contentions.4 Since Freeman has the burden of proof regarding her entitlement to maintenance and cure at the trial, she also bears the burden of proof on this motion for summary judgment. To recover maintenance and cure, Freeman must show:
Furthermore, Freeman's right to recover for maintenance and cure is broad and the burden of proof is a relatively light since recovery is not dependent on the negligence or fault of the vessel or its owner.6
In her statement of material facts as to which there is no issue ("Statement of Material Facts")7 which was filed with her motion for summary judgment, Freeman asserts that she was a Jones Act seaman employed by Thunder Bay, assigned to the M/V CENTRAL, and injured in the vessel's service. She also asserts that Thunder Bay has refused to pay for the majority of her medical treatment and that Thunder Bay has failed to pay current maintenance with the exception of two checks. Thunder Bay has neither opposed the motion for partial summary judgment nor has it specifically denied the facts as set out in Freeman's statement of material facts. Therefore, these facts are deemed admitted for the purposes of this motion pursuant to Uniform Louisiana Local Rule 2.10M. Freeman's statement of material facts satisfies her burden of proof that she was a seaman employed by Thunder Bay who was injured in the service of the M/V CENTRAL. Since these facts are deemed admitted, no genuine issue of material fact exist as to these issues and Freeman is entitled to maintenance and cure from Thunder Bay as a matter of fact and law.
The plaintiff must also prove the amount of her wages and the medical expenses she has incurred. Freeman's statement of material facts is silent as to the amount any wages Freeman may be entitled to receive, the amount of medical expenses not paid for by Thunder Bay, and the amount of maintenance already received. Freeman's memorandum of authorities in support of motion for partial summary judgment on the issue of maintenance and cure (the "Memorandum") provides a complete listing of medical bills and an alleged oral representation by an officer of Thunder Bay as to maintenance. However, it is unclear what amount, if any, has been already paid by Thunder Bay. Furthermore, the memorandum contains only arguments and the record is devoid of any evidence supporting the amounts alleged in the memorandum. Freeman does not point out any pleadings, depositions, answers to interrogatories, admissions on file, affidavits,8 or documentary evidence supporting these claims. In fact, the scheduling order requires discovery to be completed by June 21, 1990 and the status report filed jointly by the parties on December 18, 1989 indicates that substantial discovery is still required and would take approximately four months. This motion was filed December 21, 1989 and Freeman has not supplemented the motion with any evidence since that time.
Summary judgment is proper "if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law."9 Furthermore, summary judgment is appropriate where the evidence would require a directed verdict.10 The plaintiff has failed to present any evidence regarding the proper amount of maintenance and cure. It cannot be said that Freeman "is entitled to a judgment as a matter of law." In summary, the Court finds that Freeman is entitled to maintenance and cure from Thunder Bay but the Court cannot determine the appropriate amount of maintenance and cure without more evidence in the record.
Freeman also claims compensatory and punitive damages as a result of Thunder Bay's failure to timely pay maintenance and cure. In Morales v. Garijak, Inc., 829 F.2d 1355 (5th Cir.1987), the court explained the Fifth Circuit set forth its standard which must be satisfied before compensatory and punitive damages may be awarded for failure to timely pay maintenance and cure:
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