Merritt v. Marquette Transp. Co. Gulf-Inland

• Decision Date: 14 February 2022
• Docket Number: 5:19-cv-00158 (TBR)
• Parties: DONIVEN H. MERRITT, Plaintiff, v. MARQUETTE TRANSPORTATION COMPANY GULF-INLAND LLC, Defendant.
• Court: U.S. District Court — Western District of Kentucky

DONIVEN H. MERRITT, Plaintiff, v. MARQUETTE TRANSPORTATION COMPANY GULF-INLAND LLC, Defendant.

No. 5:19-cv-00158 (TBR)

United States District Court, W.D. Kentucky, Paducah

February 14, 2022

MEMORANDUM OPINION AND ORDER

Thomas B. Russell, Senior Judge United States District Court.

This matter comes before the Court upon two motions for partial summary judgment.

First Defendant Marquette Transportation Company, LLC filed a Motion for Partial Summary Judgment Seeking a Ruling That Plaintiff was Negligent, (Neg. Mot.), Dkt. 41-1. Plaintiff Doniven Merritt has responded, (Neg. Resp.), Dkt. 47-1. Marquette has replied, (Neg. Reply), Dkt. 48.

Second Marquette filed a Motion for Partial Summary Judgment Seeking Set-Off or Credit, (Set-Off Mot.), Dkt. 46-1. Merritt has responded, (Set-Off Resp.), Dkt. 49-1. Marquette has replied (Set-Off Reply), Dkt. 49.

As such, briefing is complete and these motions are ripe for adjudication. For the reasons that follow, IT IS HEREBY ORDERED that Marquette's Neg. Motion Dkt. 41-1, is DENIED and Marquette's Set-Off Mot., Dkt. 46-1, is GRANTED IN PART AND DENIED IN PART.

I. FACTUAL BACKGROUND

The facts of this case are set out in greater detail in the Court's prior opinion and are therefore only briefly summarized here. See Summ. J. Op., Dkt. 35, at 1, 4-6. Around July 7, 2017, Doniven Merritt was working as a deckhand on the M/V FATHER PAT when he fell and injured his right knee. See Compl., Dkt. 1, at 1-3. Merritt subsequently brought claims against Marquette for: (1) negligence; (2) unseaworthiness; and (3) maintenance and cure. See id. at 36. On September 24, 2021, the Court granted Marquette's motion for partial summary judgment regarding the maintenance and cure claim. See Summ. J. Op. Marquette now seeks summary judgment for issues that pertain to Merritt's remaining claims. See Neg. Mot.; see also Set-Off Mot.

II. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matshushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

“[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. See Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). The plaintiff may accomplish this by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute . . . ” Fed.R.Civ.P. 56(c)(1). Mere speculation will not suffice to defeat a motion for summary judgment, “the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate.” Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).

III. NEGLIGENCE CLAIM

Marquette asks the Court to find that Merritt was comparatively negligent on the basis of an “unreasonable exposure” theory.^[1] Johnson v. Cenac Towing, Inc., 599 F.Supp.2d 721, 732 (E.D. La. 2009); see also Neg. Mot. at 4. There are three elements to this inquiry. Contributory negligence may be found under such a theory when a seaman: (1) “has concealed material information about a pre-existing injury or physical condition from his employer;” (2) “exposes his body to a risk of reinjury or aggravation of the condition;” and (3) “then suffers reinjury or aggravation injury.” Johnson v. Cenac Towing, Inc., 544 F.3d 296, 304 (5th Cir. 2008).

The Court begins with the first element, i.e., whether Merritt concealed material information about a pre-existing injury or physical condition from Marquette. See id. Here, Marquette must show that Merritt “kn[ew], or should have [had] reason to know, that certain working conditions pose[d] an unreasonable risk of reinjury.”^[2] Johnson, 599 F.Supp.2d at 732. Merritt primarily relies on two facts to demonstrate that he neither knew, nor had reason to know, about an unreasonable risk of reinjury. First, Merritt states that Marquette's pre- employment physician “performed a complete physical examination and found no reason for concern or need to issue any work restrictions.” Neg. Resp. at 13. Merritt maintains that because the physician cleared him for work, he did not think that Marquette's working conditions posed an unreasonable risk of reinjury. See id. Second, Merritt testified at his deposition that he did not mention the injury to Marquette because: “I didn't know there was anything wrong with me, to be honest. I didn't think I had a problem. I never felt any different. I always kept going. I never stopped.” Merritt Dep., Dkt. 47-2, Ex. A, at 139. In this statement, Merritt suggests that, at the time of the pre-employment examination, he thought his knee had fully recovered from any prior injuries. See Neg. Resp. at 13.

Nevertheless, Marquette argues that Merritt “knowingly concealed his prior right knee injury from Marquette . . ., and [] by his concealment, he exposed his knee to risk of re-injury.” Neg. Mot. at 5; see also Neg. Reply at 4. Marquette uses Dr. Turnbo's deposition testimony in support of its position. See Neg. Mot. at 5-6. Marquette directs the court to Dr. Turnbo's statement that “if you have one patella dislocation, you're at least three or for times more likely to get another one. If you have more than two, it bumps you up to like ten times more likely.” Turnbo Dep., Dkt. 34-2, Ex. B, at 22.

The problem for Marquette, however, is that the legal standard does not ask what Dr. Turnbo knew or should have known. See Johnson, 599 F.Supp.2d at 732. The applicable legal standard instead asks whether Merritt knew, or should have had reason to know, that certain working conditions at Marquette posed an unreasonable risk of injury. See id. And there is a genuine dispute of material fact about this issue. Merritt first injured his right knee in 2010 during a high school football practice. See Merritt Dep., Dkt. 16-4, at 36. And Merritt reports that seven years later, when he applied for a job as a deckhand with Marquette, he felt that there was nothing wrong with his knee. See Merritt Dep. at 139. In fact, Merritt's testimony suggests that he had full use of his right knee and could engage in physically demanding activities. See Id. So, according to Merritt, it made sense that Marquette's pre-employment physician found no physical limitations or restrictions with respect to Merritt's job as a deckhand. See Neg. Resp. at 13. Based on these allegations, a jury could find that Merritt was not negligent at all. See, e.g., Johnson, 599 F.Supp.2d at 733 (E.D. La. 2009) (finding that a plaintiff was not contributorily negligent because a physician found no reason for concern and the plaintiff had performed physically demanding tasks without any problems); Gavagan v. United States, 955 F.2d 1016, 1018 (5th Cir. 1992) (affirming a district court's finding that a plaintiff was contributorily negligent because the plaintiff “knew at the time . . . that the screw, pins and wires remained in his hand, that he did not have full use of his hand and that he should not strain his hand or place undue stress upon it”); Savoie v. Otto Candies, Inc., 692 F.2d 363, 372 (5th Cir. 1982) (affirming a jury's finding that a plaintiff was contributorily negligent when he sustained an injury cleaning duck blinds after he was told to “do light work only”).

The Court notes that the parties also dispute other parts of the contributory negligence analysis-namely, whether Merritt was performing a routine task at the time of his injury^[3] and whether Merritt sought proper relief from the captain of the M/V FATHER PAT. See Neg. Resp. at 14-16; see also Reply at 4-5. However, because Marquette has not carried its burden with respect to the first element of the contributory negligence analysis, it is unnecessary for the Court to address how these other disputes relate to the remaining elements.

IV. SET-OFF CLAIMS

A shipowner's duty to provide maintenance and cure “arises regardless of fault and whether or not employment on the ship actually caused the seaman's injury.” Cunningham v. Interlake S.S. Co., 567 F.3d 758, 761 (6th Cir. 2009). Maintenance refers to the shipowner's duty to provide food and lodging while cure is the shipowner's duty to provide medical care and attention “during the period of injury or illness.” Id. In order to recover for maintenance and cure, a plaintiff must demonstrate that “(1) he was working as a seaman, (2) he became ill or injured while in the vessel's service, and (3) he lost wages or incurred expenditures relating to the treatment of the illness or injury.” West v. Midland Enterprises, Inc., 227 F.3d 613, 616 (6th Cir. 2000). Any ambiguities or doubts should be resolved in favor of the plaintiff. See Id. (quoting Vaughan v. Atkinson, 369 U.S. 527, 532 (1962)).

An employee forfeits his or her right to maintenance and cure by failing to disclose certain medical facts, or, when asked about those facts in an employment application, misrepresents them. This...