McMeil v. Jantran, Inc.

• Decision Date: 13 March 2003
• Docket Number: No.02-2045.,02-2045.
• Citation: 258 F.Supp.2d 926
• Parties: Raymond McNEIL Plaintiff v. JANTRAN, INC., Burlington Northern Railroad Co. and/or Arkansas-Missouri Railroad and/or J & O Railroad Defendants
• Court: U.S. District Court — Western District of Arkansas

258 F.Supp.2d 926

Raymond McNEIL Plaintiff v. JANTRAN, INC., Burlington Northern Railroad Co. and/or Arkansas-Missouri Railroad and/or J & O Railroad Defendants

No.02-2045.

United States District Court, W.D. Arkansas, Ft. Smith Division.

March 13, 2003.

COPYRIGHT MATERIAL OMITTED

Dennis Michael O'Bryan, Christopher D. Kuebler, O'Bryan, Baun, Cohen, Kuebler, Birmingham, MI, for Plaintiff.

James E. Crouch, Cypert, Crouch, Clark & Harwell, Springdale, AR, Thomas b. Janoush, Westerfield & Janoush, Cleveland, MS, for Defendant.

OPINION & ORDER

DAWSON, District Judge.

On this 13th day of March 2003, there comes on for consideration the Plaintiffs motion for retroactive and future increase of maintenance rate. (Doc. # 52.) Defendant Jantran filed a response in opposition, (doc. # 56), and Plaintiff filed a reply. (Doc. # 60.) An evidentiary hearing on the motion was held on March 6, 2003 in Fort Smith. Plaintiff appeared with his attorney, Christopher Kuebler, and defendant Jantran was represented by its counsel, Tom Janoush.

Plaintiff brought this suit for damages under the Jones Act, 46 App. U.S.C.A § 688, and general maritime law alleging negligence in the operation of a railroad bridge and breach of the shipowner's obligation to provide maintenance, cure, and wages. For the reasons set forth within this opinion and order, the motion for maintenance and cure will be granted for the interim period pending trial on the merits. This order notwithstanding, Jantran's right to assert and present evidence of its defenses to Plaintiffs claims will be preserved for trial.

BACKGROUND

Plaintiff was hired by defendant Jantran on November 11, 1997. Plaintiff was given a pre-employment application and physical that included a personal medical history. On the personal medical history portion of the application, Plaintiff noted that he had no previous or prior back problems and stated that he had never been injured on or off the job. (Defs.Resp.Mot., Ex. D.) The physical examination went well, and xrays of Plaintiffs back were taken. Although the doctor noted some scoliosis of the spine, Plaintiff was deemed fit for unrestricted employment. (Pl's.Reply, Ex. T.)

On July 11, 2001, Plaintiff was serving as first mate aboard the M/V Mr. Tom, a vessel owned by defendant Jantran. The vessel struck a bridge spanning the Arkansas River near mile mark 300.8, in the vicinity of Van Buren, Arkansas. At or near the time of the allision, Plaintiff fell approximately six feet from the deck on which he was working. After picking himself up, Plaintiff went to the aid of another crew member who had been knocked overboard and helped the man climb back onto the boat.

The Mr. Tom continued its way up the river. After a while, Plaintiff sat down and felt pain in his back and shoulder. He reported to the captain that he may have been injured in the allision. He was asked to fill out some paperwork concerning the accident, and he did so. Entries in the vessel log book do not indicate that Plaintiff was suspected of drug or alcohol use before or after the allision. (Pl's. Reply, Ex. G.) The vessel's captain, Roger Williams, testified in deposition that he never suspected Plaintiff of drug or alcohol use prior to the allision, nor did he receive any reports of such suspicions from other crew members. (Pl's. Reply, Ex. B at 4.) Finally, according to the Coast Guard Incident Report completed by the vessel's pilot, Robert Molidor, there was no belief among the crew that drug or alcohol use contributed to Plaintiffs injury. Instead, the injury was attributed to the allision with the bridge. (Pl's.Reply, Exs.H, I.)

Plaintiff was later seen in the emergency room of Sparks Regional Hospital. The examining physician diagnosed Plaintiff with acute myofascial strain in the lumbar area and a right shoulder contusion. The physician's notes do not suggest that Plaintiff appeared to be intoxicated or under the influence of drugs. He was given pain medication and told not to return to work. Although Jantran made a timely request of the hospital, no drug test was administered to the Plaintiff while he was at Sparks. Plaintiff was released from the hospital that same day. Plaintiff re-boarded the Mr. Tom at the lock at mile mark 319, but was restricted to bed rest. As soon as logistically possible, Plaintiff was evacuated from the boat and transported by company van to Mississippi.

On July 13, 2001, Jantran referred Plaintiff to Dr. Don Blackwood at the Family Medical Clinic in Cleveland, Mississippi, for follow-up treatment and a drug test. According to Plaintiffs testimony and the doctor's notes, the office manager or nurse interviewed Plaintiff, noted his vital signs, and ordered x-rays of Plaintiffs back and shoulder area. When the nurse requested that Plaintiff submit to a drug test, Plaintiff refused, became loud and uncooperative, and demanded that he be permitted to call his attorney. After spending some 15 minutes on the phone with his lawyer, Plaintiff left the office without being questioned or examined by Dr. Blackwood. Plaintiff testified at the hearing that he didn't understand why the office manager was so insistent upon the drug test when Plaintiff was there to have something done for his back and shoulder pain. Plaintiff claims he left because he was being treated "like a dog." Dr. Blackwood reviewed the X-rays of Plaintiffs back and shoulder and did not see any fractures or abnormalities. (Defs.Resp.Mot., Ex. A.)

Plaintiff has now obtained medical treatment from doctors of his own choosing. Dr. Omara diagnosed Plaintiff with a torn rotator cuff in his shoulder, and Dr. Spurrier has recommended surgery for a lumbar disc herniation. Plaintiff has not been able to have the surgery due to financial constraints. Plaintiff remains off work at this time, and Jantran has refused to pay and continues to withhold maintenance and cure following the accident.

STANDARD OF REVIEW

We find scant authority to guide this Court in ruling on Plaintiffs motion for retroactive and future increase of maintenance rate. Plaintiffs complaint includes a claim for payment of maintenance and cure, and he has requested a jury trial in this case. Other than a motion for summary judgment, we are aware of no procedure for obtaining pre-trial judgment on the merits of a claim. Accordingly, we conclude that the motion for retroactive and future maintenance and cure should be treated as something similar to a motion for summary judgment. See Britton v. U.S.S. Great Lakes Fleet, Inc., 302 F.3d 812, 815 (8th Cir.2002); Freeman v. Thunder Bay Transportation Co., Inc., 735 F.Supp. 680 (M.D.La.1990). However, the Court's findings will be preliminary in nature, and any relief granted will be temporary pending trial and final judgment on the merits.

The court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material only when its resolution affects the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252, 106 S.Ct. at 2512. The court views the evidence in favor of the nonmoving party, giving that party the benefit of all justifiable inferences that can be drawn in its favor. If reasonable minds could differ as to the import of the evidence, judgment should not be granted. Id. at 250-51, 106 S.Ct. at 2511-12. However, the nonmoving party must set forth specific facts, by affidavit or otherwise, sufficient to raise a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

DISCUSSION

The duty to provide maintenance and cure is derived from medieval maritime codes. 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). The shipowner is obliged to pay maintenance and cure 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. See Vella v. Ford Motor Co., 421 U.S. 1, 5, 95 S.Ct. 1381, 1384, 43 L.Ed.2d 682 (1975); Vaughan, 369 U.S. at 531, 82 S.Ct. at 1000; Neville v. American Barge Line Co., 276 F.2d 117,118-19 (3d Cir.1960).

Viewing seamen as wards of the admiralty, the Supreme Court has emphasized that the right to maintenance and cure must be construed liberally and has consistently expanded the scope of the right. See Vaughan, 369 U.S. at 531-34, 82 S.Ct. at 1000-01; Warren v. United States, 340 U.S. 523, 529-30, 71 S.Ct. 432, 436, 95 L.Ed. 503 (1951); Aguilar, 318 U.S. at 729, 735-36, 63 S.Ct. at 933, 936; Calmar, 303 U.S. at 529-30, 58 S.Ct. at 653-54. A modern 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. Aguilar, 318 U.S. at 730-31, 63 S.Ct. at 933-34. The duty to provide maintenance and cure is independent of any negligence, and causation is not relevant. Liner v. J.B. Talley & Co., Inc., 618 F.2d 327, 1982 A.M.C. 2693 (5th Cir.1980). Comparative fault will not reduce the recovery. Deisler v. McCormack Aggregates Co., 54 F.3d 1074 (3d Cir.1995); Rodriguez Alvarez v. Bahama Cruise Line, Inc., 898 F.2d 312, 1990 A.M.C. 1290 (2d Cir.1990). Assumption of the risk or gross negligence are not good defenses. Aguilar v....