Oliver v. National Gypsum Co., Cement Div., Docket No. 118112

• Decision Date: 05 March 1991
• Docket Number: Docket No. 118112
• Citation: 187 Mich.App. 610,468 N.W.2d 312
• Parties: Joanne OLIVER, Individually and as Personal Representative of the Estate of Thomas W. Oliver, deceased, Plaintiff-Appellant, v. NATIONAL GYPSUM COMPANY, CEMENT DIVISION, Defendant-Appellee. 187 Mich.App. 610, 468 N.W.2d 312, 1991 A.M.C. 1738
• Court: Court of Appeal of Michigan — District of US

Page 312

468 N.W.2d 312

Joanne OLIVER, Individually and as Personal Representative of the Estate of Thomas W. Oliver, deceased Plaintiff-Appellant, v. NATIONAL GYPSUM COMPANY, CEMENT DIVISION Defendant-Appellee.

Docket No. 118112.

187 Mich.App. 610, 468 N.W.2d 312, 1991 A.M.C. 1738

Court of Appeals of Michigan.

Submitted June 22, 1990, at Detroit.

Decided March 5, 1991, at 9:05 a.m.

Released for Publication May 6, 1991.

[187 MICHAPP 611] O'Bryan Law Center, P.C. by Dennis M. O'Bryan and Howard M. Cohen, Birmingham, for plaintiff-appellant.

Ray, Robinson, Hanninen & Carle by Sandra Maurer Kelly and Douglas R. Denny, Cleveland, Ohio, and Hill Lewis by Richard C. Sanders and James M. Dworman, Detroit, for defendant-appellee.

[187 MICHAPP 612] Before DANHOF, C.J., and CYNAR and BRENNAN, JJ.

PER CURIAM.

Plaintiff Joanne Oliver brought this action against defendant National Gypsum Company, Cement Division, alleging a claim for the wrongful death of her husband, Thomas W. Oliver, under the Jones Act, 46 U.S.C.App. Sec. 688, and general maritime law. Following a hearing, the Wayne Circuit Court granted defendant's motion for summary disposition, pursuant to MCR 2.116(C)(7) and (10), and entered an order dismissing plaintiff's complaint. Plaintiff appeals as of right. We affirm.

Plaintiff's decedent was employed by defendant from June 15, 1959, to November 2, 1981, as a crew member on defendant's ships. On January 11, 1985, Mr. Oliver died from a combination of liver destruction, a heart attack, and kidney failure. Plaintiff alleged in her complaint that Mr. Oliver's death was the result of his continual exposure to cement dust in his work environment. However, by plaintiff's own admission, her husband was a smoker, and, from 1980 until his death, he drank heavily, with his consumption reaching as much as a gallon of straight whiskey per day.

In her complaint, filed on March 1, 1988, plaintiff alleged three causes of action available when a seaman is injured in the course of serving on a ship: maintenance and cure, unseaworthiness of the vessel, and negligence under the Jones Act, 46 U.S.C.App. Sec. 688.

The trial court granted summary disposition in favor of defendant, finding in part that there was insufficient causation as a matter of law. The court found that the expert evidence testimony established "at best" that the discomfort associated [187 MICHAPP 613] with Mr. Oliver's chronic obstructive pulmonary disease (i.e., a slight obstruction of his airways caused by his smoking, or exposure to cement dust, or both) induced him to seek relief in excessive alcohol consumption, and that it was the drinking which caused his death. The trial court also found that plaintiff's Jones Act and maintenance and cure claims were barred by the applicable statutes of limitations, and that the claim for unseaworthiness was barred by laches.

In Szopko v. Kinsman Marine Transit Co., 426 Mich. 653, 657-658, 397 N.W.2d 171 (1986), our Supreme Court noted:

In general, a seaman has three basic theories of recovery: unseaworthiness of a vessel, maintenance and cure, and an action for damages under the Jones Act, 46 USC 688.

A seaman who becomes ill or injured while "in the service of the ship" is entitled to "maintenance and cure" ("cure" from the Latin noun cura, care, healing). Recovery is in the form of a per diem living allowance and payment of medical costs. Recovery is not based on fault and is analogous to workers' compensation....

A seaman may also sue on the basis of the vessel's "unseaworthiness," since a shipowner has an absolute, nondelegable duty to furnish a vessel that is reasonably safe for its intended purposes....

* * * * * *

The Jones Act states that "[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury...." The parties agree that there are two basic elements in a Jones Act claim. First, the injury must have occurred "in the course of ... employment." Second, the injury must have been caused in some way by the defendant's negligence.

[187 MICHAPP 614] Each of the three theories of recovery is distinct and has its own body of interpretive case law. Id. at 658, 397 N.W.2d 171.

The three-year statute of limitations provided under the Federal Employers' Liability Act is applicable to claims brought pursuant to the Jones Act. 45 U.S.C. Sec. 56; Clay v. Union Carbide Corp., 828 F.2d 1103, 1105 (CA 5, 1987). In dismissing plaintiff's Jones Act claim as time-barred, the trial court found that plaintiff's cause of action accrued in August or September of 1980, or no later than November 2, 1981, when Mr. Oliver's employment with defendant ended. We find no error in the trial court's ruling.

In her deposition, plaintiff testified that in 1980 her husband began to complain of chest and breathing problems, and started to drink heavily to alleviate the discomfort. In December of 1981, he was hospitalized for treatment of acute alcoholism. Furthermore, plaintiff alleged before the court below that in an incident which occurred on September 8, 1980, Mr. Oliver was exposed to extremely high levels of cement dust and required immediate medical treatment. Under these facts, we agree with the trial court that plaintiff's decedent knew or had a reasonable opportunity to discover the critical facts of his condition and its cause no later than his last day of employment and, therefore, plaintiff's cause of action accrued no later than that date. See id. at 1106-1107.

Plaintiff's maritime tort claim for unseaworthiness is also barred by a three-year statute of limitations provided under 46 U.S.C. Sec. 763a. Reynolds v. Heartland Transportation, 849 F.2d 1074 (CA 8, 1988). Even though plaintiff's cause of action may have accrued prior to the enactment of Sec. 763a on October 6, 1980, the statute is still applicable because plaintiff's complaint was not filed within [187 MICHAPP 615] three years of that effective date. Id. at 1075; Clay, supra at 1105; but see Fordham v. Belcher Towing Co., 710 F.2d 709 (CA 11, 1983) (laches, not Sec. 763a, applied to a claim which accrued before October 6, 1980, however, the suit at issue there was filed prior to October 6, 1983).

We also find no error in the trial court's reliance on the equitable doctrine of laches in deciding to dismiss plaintiff's unseaworthiness claim. The court properly noted as factors in its decision: Mr. Oliver's intervening death, plaintiff's failure to show no prejudice to defendant, and ...