Jordan v. Intercontinental Bulktank Corp., CA

• Decision Date: 19 February 1993
• Docket Number: No. CA,CA
• Citation: 621 So.2d 1141
• Parties: John E. JORDAN, v. INTERCONTINENTAL BULKTANK CORPORATION. 90 2146.
• Court: Court of Appeal of Louisiana — District of US

Page 1141

621 So.2d 1141

John E. JORDAN, v. INTERCONTINENTAL BULKTANK CORPORATION.

No. CA 90 2146.

Court of Appeal of Louisiana First Circuit.

Feb. 19, 1993.

Rehearing Denied April 28, 1993.

Writs Denied Sept. 17, 1993.

Terry A. Bell, Atty., Belle Chasse, Patrick W. Pendley, Atty., Plaquemine, John M. Deakle, Atty., Hattiesburg, MS, for plaintiffs-appellees John E. Jordan and Emo Jean Jordan.

Patrick O'Keefe, Atty., Clayton G. Ramsey, Atty., Ira J. Rosenzweig, Atty., New Orleans, H. Alston Johnson, III, Atty., Baton Rouge, for defendant-appellant Intercontinental Bulktank Corp.

Before SHORTESS, CARTER, CRAIN, GONZALES and CHIASSON, JJ.

CRAIN, Judge.

This action is a suit in admiralty to recover compensatory and punitive damages and maintenance and cure for an injury sustained by the plaintiff seaman on board the defendant's vessel. The trial judge granted plaintiff's motion for a directed verdict on the issues of maintenance and cure. The trial jury found for the plaintiff on his Jones Act (46 U.S.C.App. Sec. 688) and general maritime tort claims and awarded plaintiff $650,000.00 in compensatory damages. The jury also awarded $1,000,000.00 in punitive damages for arbitrary and capricious failure to pay maintenance and cure. The trial court rendered judgment according to the directed verdict and the jury's verdict. The defendant took this suspensive appeal.

FACTS

Plaintiff, John Jordan, was employed by defendant, Intercontinental Bulktank Corporation (IBC), as chief pumpman on the S/S Overseas Alaska. On June 2, 1988, Jordan was ordered by the chief engineer and chief mate of the vessel to construct a support bracket for an air conditioning unit. Jordan needed an acetylene torch to do the work and went down to the engine room to get an acetylene bottle. Jordan claimed John Wayne Labure, first assistant to the chief engineer, told him to put the bottle on his shoulder and carry it up on deck. Although Labure denied giving this order, he testified this was the way these bottles were usually moved. Labure testified that the ship was "fully crewed" at the time and Jordan could have gotten help had he asked for it.

Robert Borison, a safety consultant, testified the acetylene bottle weighed approximately 79 pounds and contained a highly flammable gas. After inspecting the ship, Borison testified as follows:

Q How do you understand that the acetylene bottle was being transported at the time of Mr. Jordan's injury?

A I understand he was instructed to lift it up, place it on his shoulder and carry it.

Q Is that a proper way of moving an acetylene bottle, in your opinion?

A No, sir.

Q What are the hazards of moving acetylene in that manner?

A Aside from the physical injuries sustained, or could be sustained by the person carrying it, I think the overall danger to the vessel and/or the people involved in working in that vessel overshadows any personal danger to an individual. For example, if that man would have fallen and dropped the bottle it may have exploded thereby damaging the ship, sinking the ship at sea. It could have injured no telling how many people on that vessel, particularly where he was carrying it. He was asked to carry it up a flight of stairs, across an elevated walkway overlooking the engine compartment, approximately twenty feet above the top of the engine compartment and then up a very large and steep sixty percent grade stairway. All of these combined, in my opinion, placed the defendant and the vessel in extreme danger. It's very fortunate he didn't drop the bottle.

Jordan, who was 53 years old and weighed approximately 120 pounds, lifted the 79-pound bottle, placed it on his shoulder, climbed three flights of stairs, and walked through a watertight door onto the main deck of the vessel. As he bent over to put the acetylene bottle down, he felt pain in his lower back. Jordan was unable to keep working. He went to his room and remained there until the ship docked two days later. Jordan went ashore and was examined at the St. James Parish Hospital and released. After spending the night in a motel, Jordan returned to the ship to collect his wages and caught a flight to his home in Mobile, Alabama.

Jordan was seen by Dr. Michael Ledet in Mobile on June 13, 1988. He complained of severe lower back pain that radiated down his left leg. Dr. Ledet referred Jordan to Dr. Norman Lichtenfeld who admitted him to Providence Hospital on June 15, 1988. Dr. Lichtenfeld diagnosed minimal bulging of the L4-5 disc and narrowing of the L5-S1 disc space. He found no evidence of disc herniation. Following traction and physical therapy, Jordan was released from the hospital on June 25, 1988.

On July 21, 1988, Jordan consulted Dr. Kenneth Vogel, a neurosurgeon, in New Orleans, Louisiana. A CAT scan showed disc herniation with bilateral stenosis at the L5-S1 level. Dr. Vogel performed a microsurgical laminectomy on Jordan on August 29, 1988, at Mercy Hospital. Dr. Vogel determined that Jordan would not reach maximum medical improvement until one year after surgery and concluded Jordan would have a 10 to 15 percent medical impairment of the body as a whole. Dr. Vogel also advised Jordan to avoid lifting, pushing, or pulling weights greater than 50 pounds on a permanent basis. Dr. Vogel last saw Jordan on December 13, 1988.

Jordan's pain continued after the surgery. He consulted Dr. John Watermeier, an orthopaedic surgeon, on March 14, 1989. Dr. Watermeier diagnosed Jordan as having lumbar disc syndrome. After numerous visits, Dr. Watermeier recommended that Jordan undergo a CAT scan and an MRI to determine the exact cause of the pain. Dr. Watermeier testified that if Jordan needed additional surgery it would cost between $15,000.00 and $20,000.00. As of the time of trial (June 15, 1990), Jordan had not undergone these tests because he did not have the money to pay for them. Dr. Watermeier last saw Jordan on November 22, 1989, and testified at that time Jordan's condition had not improved. Dr. Watermeier agreed with Dr. Vogel's assessment that Jordan should avoid lifting, pushing or pulling weight greater than 50 pounds and suffered a 10 to 15 percent disability of the body as a whole.

IBC had Jordan examined by Dr. Randall Lea in Baton Rouge, Louisiana, on February 6, 1990. Dr. Lea, an orthopaedic surgeon, concluded that Jordan suffers from "failed back syndrome" which he explained as continued pain after surgery. This pain, he indicated, could be caused by further disc herniation that might require additional surgery. Dr. Lea testified that if Jordan underwent additional surgery, he would not reach "maximum medical cure" until one year after surgery. Dr. Lea recommended that Jordan undergo an MRI to determine the cause of his pain. Dr. Lea stated that Jordan would not be able to return to his old job and should be relegated to sedentary or light work, regardless of whether further surgery was required.

Donald Wooddall, an expert in vocational rehabilitation and training, testified Jordan's age, education, and medical condition would make it very difficult for Jordan to find employment of a sedentary nature. However, Nancy Favaloro, IBC's expert in vocational rehabilitation, disagreed with this assessment and testified there were job opportunities available for Jordan.

Jordan testified he continues to experience pain in his lower back and is unable to work. Prolonged standing or sitting causes the pain to intensify. Jordan maintains he can no longer hunt and fish and is relegated to watching television in his rented trailer. ¹ Jordan claims that he has delayed getting medical treatment, medication, and the additional testing recommended by Drs. Watermeier and Lea because he does not have any money. Jordan testified the maintenance and cure he received from IBC was not enough to cover his medical expenses or his living expenses. Jordan has been forced to borrow money for food and rent. He claims that IBC has delayed maintenance payments for periods of from 3 to 6 months.

Terry Bell, one of Jordan's attorneys, testified that he sent a November 20, 1989, letter to IBC's attorneys demanding maintenance and cure. The trial court, over IBC's objection, admitted this letter into evidence. The letter provides, in pertinent part, as follows:

As I promised last week, you will find enclosed a revised medical tabulation showing amounts paid by myself, my co-counsel, and the Welfare Plan. This tabulation also shows the total amount of medical expenses incurred by Mr. Jordan. On the second page is a recapitulation showing amounts still owed to various providers as well as the amounts paid by the Welfare Plan. Some of these accounts, particularly that of Providence Hospital, are quite old.

Despite the provisions of the contract that the Welfare Plan is obligated to pay medical expenses, as you are aware, that does not obviate the requirement that the employer pay cure. I have attached supporting documentation to the Tabulation and suggest that all amounts be paid within three weeks of the date of this letter. Otherwise, I believe we will have a good claim for punitive damages in this case which would be tried to a receptive judge.

Finally, the medical which was given to you last week, particularly that from Dr. Watermeier, indicate that Mr. Jordan has not reached maximum medical cure as of this date. Accordingly, maintenance should have been paid through the present date. I would appreciate it if you would rectify this situation.

The attachments to the letter show that as of November 20, 1989, Jordan had $6,132.70.00 in unpaid medical bills. ² Some of the unpaid bills were over a year old. Bell also wrote to IBC's attorneys on March 15, 1990, and again asked that maintenance and cure payments be made. This letter was admitted into evidence over IBC's objection, but it is not in the record on appeal.

At the close of the evidence, the trial judge granted Jordan's motion for a directed verdict on the issue...