Gaspard v. Taylor Diving & Salvage Co., Inc.

• Decision Date: 02 July 1981
• Docket Number: No. 78-1299,78-1299
• Citation: 649 F.2d 372
• Parties: Paul J. GASPARD, Plaintiff-Appellant, v. TAYLOR DIVING & SALVAGE CO., INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 372

649 F.2d 372

Paul J. GASPARD, Plaintiff-Appellant, v. TAYLOR DIVING & SALVAGE CO., INC., et al., Defendants-Appellees.

No. 78-1299.

United States Court of Appeals Fifth Circuit.

July 2, 1981.

Law Offices of Frederick J. Gisevius, Jr., Frederick J. Gisevius, Jr., Dennis L. Rousseau, Jane M. Gisevius, New Orleans, La., for plaintiff-appellant.

Christovich & Kearney, William K. Christovich, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, COLEMAN and AINSWORTH, Circuit Judges.

THORNBERRY, Circuit Judge:

While employed as a diver for the Taylor Diving & Salvage Company, Paul Gaspard developed osteonecrosis or bone rot in his shoulder joints, a painful and permanent condition that will forever prevent him from diving professionally. When the condition was finally diagnosed in March 1973, Taylor took Gaspard off its diving rolls, but continued to employ him as a diving supervisor until May 1974, when Gaspard decided to leave the company. Gaspard brought suit against Taylor in June 1974, joining counts for negligence under the Jones Act, 46 U.S.C. § 688, unseaworthiness, and maintenance and cure. He contended that improper supervision and decompression had caused his permanent disability. A jury found Taylor negligent and awarded Gaspard $45,000 under the Jones Act. The jury also awarded him $8,760 in maintenance and cure, and, after finding that Taylor wilfully, arbitrarily or unreasonably failed to pay maintenance and cure, awarded an additional $296,240 in damages. ¹ The trial court entered judgment accordingly. Taylor then filed motions for new trial and for judgment n. o. v. The court denied the motion for new trial, but granted the motion for judgment n. o. v. as to the award for damages for failure to provide maintenance and cure, thus reducing plaintiff's recovery from $350,000 to $53,760. Plaintiff appeals. For the reasons that follow, we think the trial court erred in granting the defendant's motion for judgment n. o. v. ² and therefore reinstate the jury verdict.

The trial court was troubled by the award of $8,760 for maintenance and cure, ³ apparently because the judge thought substantial evidence established that Gaspard had in fact reached the point of maximum cure by the time he abandoned his job with Taylor, but the court nonetheless declined to disturb that finding. He focused next on the finding that Taylor had been willful, arbitrary or unreasonable in its failure to pay maintenance and cure and found no evidence to support it. Prior to trial, the plaintiff had neither demanded maintenance payments nor presented any medical bills to the defendant. Except for diagnostic purposes, Gaspard had never been a patient in any hospital, and Taylor had never been informed that Gaspard would undergo those diagnostic tests. As soon as Taylor became aware of Gaspard's condition, the company offered him a position as a diving supervisor, and Gaspard held that position for at least eight months. For these reasons, the court found no evidence that Taylor had been willful, arbitrary or unreasonable in failing to pay maintenance and cure, and no evidence that Gaspard had been injured by that failure.

We think it apparent that the court, in reaching its conclusion, focused only on Taylor's conduct after Gaspard had left the company. That limited focus is perhaps explained by the fact that the jury no doubt reached the figure of $8,760 by awarding Gaspard $8 in maintenance for each day since the day he left Taylor. We are inclined to agree with the trial court, for the reasons he noted, that Taylor was neither willful, arbitrary not unreasonable in its failure to pay this $8,760 subsistence allowance. Further, an award of close to $300,000 premised on a failure to pay only $9,000 would certainly concern us. We are, however, required by the nature of this case to consider Taylor's conduct prior to the day that Gaspard terminated his employment. Having done so, we find that the evidence adduced at trial does support the jury verdict.

The 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 ensure that the seaman, when he is injured or becomes ill, receives proper care and treatment. See generally 2 Norris, The Law of Seamen (3rd ed. 1970 & Supp.) § 583 et seq., and cases cited therein. If an unreasonable failure to provide maintenance and cure aggravates the seaman's condition, the shipowner is liable not only for the increased medical expenses and maintenance that may become necessary, but also for the full tort damages that result. Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932); see Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Blanchard v. Cheramie, 485 F.2d 328 (5th Cir. 1973). If the shipowner, in failing to provide maintenance and cure, has been callous and recalcitrant, Vaughan, 82 U.S. at 530-31, 83 S.Ct. at 999, or arbitrary or capricious, see Richard v. Bauer Dredging Co., 433 F.2d 955 (5th Cir. 1970), reasonable attorney's fees may also be recovered. ⁴ Thus, as Justice Cardozo noted in Cortes, a seaman whose injuries are aggravated by a negligent failure to provide appropriate care on board ship has overlapping causes of action. He can recover full tort damages under either a count for negligence under the Jones Act or a count for breach of the maritime duty of maintenance and cure. 287 U.S. at 374-75, 53 S.Ct. at 175.

Our review of the record convinces us that the jury could reasonably have concluded that Gaspard, on a number of occasions, suffered pain, nausea, and other symptoms of decompression sickness, reported these symptoms to Taylor, yet was unreasonably denied treatment in a recompression tank. Extensive testimony established that a failure to provide proper recompression would have been likely to aggravate Gaspard's developing bone necrosis. Further, a jury determination that Taylor unreasonably denied Gaspard recompression treatment and that this denial caused or contributed to Gaspard's condition would be entirely consistent with the jury's explicit finding that Taylor's negligence played a part in producing Gaspard's injuries. ⁵ The jury was thus entitled to award Gaspard full tort damages under either the Jones Act count, the maintenance and cure count, or both, as long as it did not award a double recovery for any element of damages. Given the nature of Gaspard's injury, the pain and suffering he continues to endure, his permanent disability from the lucrative diving profession, and the possibility that he will eventually require surgery to have artificial shoulder joints inserted, we do not consider the jury's total award of $350,000 to be unreasonable. The trial court apparently would agree with us he stated that he would have had no problem if the jury had awarded this amount entirely under the Jones Act count. 4th Supp. Record on Appeal, Vol. 1, at 21. The court's detailed instructions made it absolutely clear that the jury was not to award a double recovery. The total award is not so high as to warrant an inference that, in awarding $45,000 under the negligence count and $296,240 under the maintenance and cure count, the jury disregarded its instructions.

Finally, although we must reverse the trial court on this issue, we think it appropriate to commend him for his overall performance in conducting an extremely long and tedious trial. The trial lasted six weeks and produced a record of twenty-one volumes. The attorneys for both sides were often volatile and not often helpful. Reviewing the record in light of what we had to endure in only forty minutes of oral argument, we are convinced that the trial court displayed a remarkable degree of patience and restraint.

REVERSED.

1 The relevant interrogatories and the jury responses were as follows:

4. Was (Taylor), through its employees, representatives, and/or agents negligent?

Answer. Yes.

5. Did the negligence of (Taylor) play any part, no matter how slight, in producing plaintiff's injuries?

Answer. Yes.

8. Was plaintiff, Paul J. Gaspard, negligent?

Answer. No.

10. Without any reduction for negligence on the part of plaintiff, if any, what amount do you find will fairly and adequately compensate the plaintiff for his injuries?

Answer. $45,000.

12. What amount do you find plaintiff is entitled to receive for maintenance...