Gauthier v. Crosby Marine Service, Inc.

• Decision Date: 17 September 1980
• Docket Number: Civ. A. No. 79-2366.
• Citation: 1981 AMC 1170,499 F. Supp. 295
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: Leonard GAUTHIER, Plaintiff, v. CROSBY MARINE SERVICE, INC., ABC Insurance Company, Crosby Industries, Inc., DEF Insurance Company, Dixie Oil Tools, Inc., GHI Insurance Company, Mark Drilling Inc., JKL Insurance Company, Exxon Corporation, MNO Insurance Company, L. Griffin, Inc., American Marine Services, Defendants.

499 F. Supp. 295

1981 AMC 1170

Leonard GAUTHIER, Plaintiff, v. CROSBY MARINE SERVICE, INC., ABC Insurance Company, Crosby Industries, Inc., DEF Insurance Company, Dixie Oil Tools, Inc., GHI Insurance Company, Mark Drilling Inc., JKL Insurance Company, Exxon Corporation, MNO Insurance Company, L. Griffin, Inc., American Marine Services, Defendants.

Civ. A. No. 79-2366.

United States District Court, E. D. Louisiana.

September 17, 1980.

COPYRIGHT MATERIAL OMITTED

A. Gordon Grant, Jr., New Orleans, La., James B. Irwin, Alexandria, La., for plaintiff.

John B. Peuler, Michael L. McAlpine, New Orleans, La., for defendants Crosby Marine Services, Inc. and American Home Assurance Co.

Robert M. Contois, Jr., Grady S. Hurley, for third party defendant L. Griffin, Inc.

Rene A. Pastorek, Gretna, La., for defendant Dixie Oil Tools, Inc.

Joseph L. Waitz, Houma, La., for defendant Mark Drilling, Inc.

Rene J. Mouledoux, New Orleans, La., for defendant Exxon Corp.

John E. Bergstedt, Lake Charles, La., for third party defendant American Marine Services, Inc.

CASSIBRY, District Judge:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter was heard by the Court sitting without a jury on June 2, 1980 on plaintiff's severed claim for maintenance and cure. After carefully considering the pleadings, the evidence, and the arguments of the parties, I enter the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff, Leonard Gauthier, is a resident of Louisiana domiciled in Harvey, Louisiana.

2. At all times pertinent, defendant Crosby Marine Service, Inc. was a corporation organized and existing under the laws of the State of Louisiana doing business within the Eastern district of Louisiana. Defendant American Home Assurance Company is a foreign corporation authorized to do business in Louisiana and is the liability insurer of Crosby for the claims asserted in this litigation.

2a. Third party defendant, L. Griffin, Inc., was at all times pertinent a corporation organized and existing under the laws of the State of Louisiana with its principal place of business in New Orleans, Louisiana.

3. On July 3, 1978 plaintiff was employed by Crosby as the operator of the M/V Ricky III. On that day plaintiff sustained a groin injury while acting in the course and scope of his employment with Crosby. Seaman status is not contested. Crosby paid plaintiff wages until the end of the voyage and started paying him maintenance at the rate of $8.00 per day on July 6, 1978.

4. From July 5 through August 22, 1978 plaintiff was treated by Dr. Ralph Lambert and Dr. John Cranmer for his groin injury. Plaintiff was discharged on August 22, 1978 fit to return to work effective August 28, 1978. The doctors did not contemplate that further medical treatment would be necessary at that time.

5. Although the doctors did not think further treatment would be necessary, plaintiff was actually suffering from a communicating hydrocele that would necessitate surgical repair. A recurring symptom of a communicating hydrocele is periodic swelling of the scrotal sac with fluid. Nevertheless, plaintiff believed in good faith that he was fit for duty on August 27, 1978, and later on September 22, 1978.

6. After his discharge from the doctors' care, plaintiff returned to work and completed a one-week tour of duty on the M/V Ricky III in early September without incident.

7. After the one-week tour, Crosby fired plaintiff. No evidence was presented to indicate that the firing was related to plaintiff's physical condition. Plaintiff thereafter immediately obtained employment with third-party defendant, L. Griffin, Inc., on September 22, 1978 aboard the M/V Dwayne G. On the third day of his employ with Griffin, plaintiff's prior groin injury flared up again. Although plaintiff testified that he could not trace the recurrence of symptoms to any isolated trauma or accident aboard the Dwayne G, there was evidence to indicate that the general nature of his activities on the vessel may have contributed to the renewed onset of painful swelling.

8. Plaintiff was hospitalized on September 25, 1978 by Dr. Lambert, who determined at that time that surgery would be necessary to correct the hydrocele/hernia problem.

9. During the course of routine pre-operative testing, the hospital performed an EKG on plaintiff. The result showed an abnormal heart condition. Further testing revealed that plaintiff was suffering from a serious multiple coronary arterial blockage condition, requiring immediate surgery. Although the heart surgery had to be performed before plaintiff's groin problem could be corrected the heart problem would have had to be corrected in any case because it threatened his life.

10. The medical evidence indicated that plaintiff's condition was long-standing and existed while he was in the employ of Crosby. Plaintiff's condition was not caused by the work he performed for Crosby or for Griffin, however. Moreover, before his heart condition was diagnosed, plaintiff in good faith was not aware that he had a cardiac problem. Plaintiff's physician was also not aware of plaintiff's heart condition.

11. Plaintiff was hospitalized at West Jefferson General Hospital from September 25 through October 6, 1978 for testing in connection with his heart condition. Plaintiff was released on October 6 and groin treatment was suspended so that plaintiff could obtain treatment for his life — threatening cardiac condition. Crosby paid plaintiff's medical expenses during this period as reflected in the stipulation of the parties. Crosby suspended maintenance and cure payments at the time plaintiff's cardiac condition was diagnosed, after extensive investigation.

12. On October 12, 1978 plaintiff entered Ochsner Foundation Hospital for multiple, open-heart bypass surgery to correct his heart problem. Blue Cross paid a substantial portion of plaintiff's medical bills under a policy plaintiff maintained out of personal funds.

13. While convalescing at home following his heart surgery, plaintiff developed a noninfectious hepatitis. This disease was unrelated to either the groin or the heart condition. Plaintiff was hospitalized at West Jefferson Hospital from December 27, 1978 until January 3, 1979 for treatment of the hepatitis. Plaintiff claims unpaid maintenance from defendant (as a portion of amounts he paid in hospital board) for this period. A substantial portion of these expenses were paid by Blue Cross, as well.

14. Plaintiff's cardiac condition improved to the point of maximum cure on January 22, 1979.

15. Plaintiff re-entered West Jefferson General Hospital on March 4, 1979 for groin surgery. The surgery was performed, and plaintiff was released from the hospital on March 13, 1979. While convalescing, plaintiff developed an abscess in the groin area that required further hospitalization from March 30 until April 11, 1979.

16. Plaintiff reached maximum cure from all illnesses at issue in this suit on July 9, 1979.

17. The Blue Cross Hospitalization Policy was procured by plaintiff for himself and his family at his own expense. No part of the monthly premiums were paid by Crosby or Griffin.

18. Third-party defendant, L. Griffin, Inc., has paid no maintenance and cure to plaintiff.

CONCLUSIONS OF LAW

1. This court has jurisdiction based on the Jones Act, 46 U.S.C. § 688 (1976), and the admiralty jurisdiction of the court, 28 U.S.C. § 1333 (1976). The claim for maintenance and cure is within the admiralty jurisdiction of the court. See Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963); Haskins v. Point Towing Co., 395 F.2d 737 (3d Cir. 1968), cert. denied 400 U.S. 834, 91 S.Ct. 68, 27 L.Ed.2d 66 (1970).

2. Although a plaintiff may request a trial by jury based on a Jones Act claim, a defendant may nevertheless obtain the advantages of third party admiralty practice based on a joined admiralty claim within the meaning of Federal Rule of Civil Procedure 9(h). McCune v. F. Alioto Fish Co., 1976 A.M.C. 156 (N.D.Cal.1975); Saus v. Delta Concrete Co., 368 F.Supp. 297 (W.D.Pa.1974); cf. Haskins, 395 F.2d 737 (right to jury). Because the claim for maintenance and cure is a claim in admiralty within the meaning of Rule 9(h), defendant as third party plaintiff has properly tendered third party defendant to plaintiff as a joined defendant pursuant to Federal Rule of Civil Procedure 14(c). Id.

3. The maintenance paid to plaintiff at the rate of $8.00 per day was inadequate. For the reasons set forth in Robinson v. Plimsoll Marine, Inc., 460 F.Supp. 949 (E.D.La.1978) (Cassibry, J.), $15.00 per day is the proper rate of maintenance. All maintenance due plaintiff from the date of injury to the date of maximum cure should have been paid at that rate. Crosby is, of course, entitled to a set-off for those payments that have been made at the lower rate.

4. A vessel owner is obligated to furnish a seaman with maintenance and cure benefits with respect to an injury or illness that occurs or manifests itself while the seaman is in the service of the vessel. The origin or cause of the disability, the fact that it pre-existed the voyage, originated on another vessel, or even was due to the fault of another vessel are all irrelevant. Meade v. Skip Fisheries, Inc., 385 F.Supp. 725 (D.Mass.1974) and cases cited therein. As long as a seaman believes in good faith that he is fit for duty, he is entitled to maintenance and cure from his present employer notwithstanding that he falls ill from a pre-existing illness. Gooden v. Sinclair Refining Co., 378 F.2d 576 (3d Cir. 1967); Burkert v. Weyerhaeuser Steamship Co., 350 F.2d 826 (9th Cir. 1965); Dragich v. Strika, 309 F.2d 161 (9th Cir. 1962); Meade, 385 F.Supp. 725; Diaz v. Gulf Oil Corp., 237 F.Supp. 261 (S.D.N.Y. 1965); Smith v. Isthmian Lines, Inc., 205 F.Supp. 954 (N.D.Cal.1962); see McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 548-50 (5th Cir.), cert. denied, 393 U.S....