Pelotto v. L & N Towing Co.

• Citation: 1981 A.M.C. 1047,604 F.2d 396
• Decision Date: 12 October 1979
• Docket Number: No. 79-1098,79-1098
• Parties: Glynn J. PELOTTO, Plaintiff-Appellant, v. L & N TOWING COMPANY et al., Defendants-Appellees. Summary Calendar. *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 396

604 F.2d 396

Glynn J. PELOTTO, Plaintiff-Appellant, v. L & N TOWING COMPANY et al., Defendants-Appellees.

No. 79-1098

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Oct. 12, 1979.

Darryl J. Tschirn, John M. Robin, Covington, La., for plaintiff-appellant.

Francis Emmett, Randolph J. Waits, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, Chief Judge, KRAVITCH and JOHNSON, Circuit Judges.

JOHN R. BROWN, Chief Judge:

A seaman's right to maintenance and cure may sometimes require the filing of successive suits, and so it has been said that: "(t)hus the seaman is to keep biting at his cherry." ¹ That principle and several others are at issue in this admiralty suit. The able District Judge granted defendants' motion for summary judgment, dismissing plaintiff's action for maintenance and cure. After a climb amongst several branches of admiralty and summary judgment procedure, we conditionally agree with the District Judge's expression of legal principles as to the claim for cure, but find it necessary to reverse and remand for further determinations. As to maintenance, we find that summary judgment was improperly granted, and reverse and remand as to that claim also.

The First Nibble

The present controversy is rooted in the events of October 13, 1972. Plaintiff, Glynn Pelotto, was a seaman employed on the tugboat M/V CHET G. While aboard that day, he severely injured his knee. Those events "bore fruit" a year and a half later, when Pelotto filed a complaint against his employers, defendants L&N Towing Co., Eveline Towing, Inc., and Larry Towing, Inc. ² That action initially sought damages under the Jones Act and under the general maritime doctrine of unseaworthiness. Subsequently, however, but without amending his complaint, Pelotto filed a motion for partial summary judgment, asserting seaman's status and claiming the additional right to maintenance and cure. The motion was never heard, however since on September 3, 1974, the parties reached an agreement concerning the maintenance and cure claims.

That agreement ³ contains several provisions. First, defendants agreed to pay all of the maintenance claimed and cost of cure incurred by Pelotto up until the date of the agreement. Beyond that date, defendants agreed to "recommend the continuance of maintenance payments upon (defendants' insurer) being furnished with appropriate medical reports." The parties dispute the precise nature of the provision for further cure payments, though the provision itself states that the issue would be "temporarily resolved by an agreement that any further operations or treatment by private physicians will be done at plaintiff's expense, Reserving to him the right to claim for reimbursement on trial." (Emphasis supplied). ⁴ It is undisputed, however, that the letter agreement of September 3, 1974, tendered to Pelotto further cure services free of charge, as provided at the United States Public Health Service Hospital in New Orleans, and that the tender was rejected. ⁵

Fifteen months later, the Jones Act and unseaworthiness claims came to trial. ⁶ As of that time, Pelotto had received the maintenance and cure payments due under the September agreement. In addition, Pelotto was paid maintenance throughout the September 1974 to December 1975 interim. On December 10, 1975, Pelotto was awarded a judgment of $75,000. Shortly thereafter, on December 15, Pelotto's interim maintenance payments came to an abrupt halt.

The Second Bite

The present action is the second bite. This action was brought on July 26, 1976, six months after the entry of the Jones Act and unseaworthiness judgment, and the cessation of maintenance payments. Pelotto first alleges that the defendants arbitrarily and capriciously refused to continue maintenance payments beyond December 15 1975. Second, he alleges that defendants have arbitrarily and capriciously refused to allow him to receive care from private physicians at defendants' expense. Since Pelotto admitted that he has yet to receive any treatment from a private (or public) physician, the cure claim must be viewed as a claim for damages due to the defendants' failure to agree to provide cure.

Based upon the above facts, the District Judge, as to each of the claims, granted defendants' motion for summary judgment on two grounds: (i) that the claims were barred by Res judicata and collateral estoppel, and (ii) that Pelotto improperly rejected an offer of free cure and thereby lost his right to receive maintenance and cure from the defendants.

In this appeal, Pelotto asserts that the District Judge erred in several respects. First, he argues that the failure to claim maintenance and cure damages in his original action does not estop such claims in the present action. Second, Pelotto argues that maintenance and cure are due so long as further treatment will effect an improvement in the condition of his knee. That determination, he argues, is a disputed factual question which precludes the use of summary judgment. Third, Pelotto asserts that he has adequately disputed the competency of or adequacy of treatment afforded by the United States Public Health Service Hospital thus creating a factual question concerning the effect of his rejection of that hospital's facilities.

Maintenance and cure are centuries old remedies under the general maritime law. A seaman's right to maintenance and cure is implicit in the contractual relationship between the seaman and his employer, and is designed to ensure the recovery of these individuals upon injury or sickness sustained in the service of the ship. Calmar S.S. Corp. v. Taylor, 1938, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993, 1938 A.M.C. 341; Harden v. Gordon, C.C.D.Me., 1823, 11 Fed.Cas. 480, Cas. 6,047; 1B R. Benedict, Admiralty § 48 (6th ed. 1976); 1 M. Norris, The Law of Seaman §§ 536-39, 545 (2d ed. 1962). Maintenance and cure are due without regard to the negligence of the employer or the unseaworthiness of the ship. Aguilar v. Standard Oil of New Jersey, 1943, 318 U.S. 724, 730, 63 S.Ct. 930, 933, 87 L.Ed. 1107, 1112-13, 1943 A.M.C. 451, 456-57; Calmar S.S. Corp. v. Taylor, supra. Maintenance is a Per diem living allowance, paid so long as the seaman is outside the hospital and has not reached the point of "maximum cure." Cure involves the payment of therapeutic, medical, and hospital expenses not otherwise furnished to the seaman, again, until the point of "maximum cure." Farrell v. United States, 1949, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850, 1949 A.M.C. 613; Myles v. Quinn Menhaden Fisheries, Inc., 5 Cir., 1962, 302 F.2d 146, 150, 1962 A.M.C. 1626, 1629-31.

Plotting the point of "maximum cure" is a troublesome task both factually and as a matter of law. The accepted legal standard holds that maximum cure is achieved when it appears probable that further treatment will result in no Betterment of the seaman's condition. Farrell v. United States,supra; Brown v. Aggie & Millie, Inc., 5 Cir., 1973, 485 F.2d 1293, 1973 A.M.C. 2465; Myles v. Quinn Menhaden Fisheries, Inc., supra. Thus, where it appears that the seaman's condition is incurable, or that future treatment will merely relieve pain and suffering but not otherwise improve the seaman's physical condition, it is proper to declare that the point of maximum cure has been achieved. Stewart v. Waterman S.S. Corp., E.D.La., 1968, 288 F.Supp. 629, Aff'd, 5 Cir., 1969, 409 F.2d 1045, 1969 A.M.C. 1648, Cert. denied, 1970, 397 U.S. 1011, 90 S.Ct. 1239, 25 L.Ed.2d 423; H. Baer, Admiralty Law of the Supreme Court § 1-2, at 6-10 (3d ed. 1979).

In dismissing the present action for maintenance and cure, the trial judge seemed overly preoccupied with the failure of Pelotto to litigate his maintenance and cure claims and in particular the issue of whether maximum cure had been attained at the trial of his initial Jones Act and unseaworthiness suit. It is certainly true that a seaman May join his maintenance and cure claims with those under the Jones Act and unseaworthiness. ⁷ Further, the medical testimony at such consolidated proceedings may well constitute a declaration that maximum cure has been reached, where that testimony is directed towards the issue of maximum cure. ⁸ Moreover, it is true that the doctrines of Res judicata and collateral estoppel apply to admiralty proceedings. ⁹

In applying the doctrines of Res judicata and collateral estoppel to this suit for maintenance and cure, however, the District Judge failed to account for the peculiar nature of the maintenance and cure remedies. First, maintenance and cure for the future are ordinarily not awarded in a lump sum. The award may "cover future maintenance and cure of a kind and for a period definitely ascertained or ascertainable . . .." Calmar S.S. Corp. v. Taylor,supra, 303 U.S. at 530-31, 58 S.Ct. at 654. Since the defendants were satisfying all of Pelotto's maintenance and cure claims as of the date of his initial trial, Pelotto's only possible maintenance and cure claims at that time would have been either: (i) an action for definitely ascertainable Future maintenance and cure an action which defendants do not claim was possible; or (ii) an action asking for a declaration that payments be made until Pelotto reached maximum cure an action of very doubtful utility to Pelotto. See Lirette v. K&B Boat Rentals, Inc., 5 Cir., 1978, 579 F.2d 968, 970. Thus Res judicata does not preclude the present action.

The rule of Res judicata (and collateral estoppel), recognizable in admiralty, ¹⁰ is subject to the substantive limitation that seamen have always been accorded the right to bring serial suits to collect maintenance payments as they come due. Farrell v. United States, supra, 336 U.S. at 519, 69 S.Ct. 707; Calmar S.S. Corp. v. Taylor, supra, 303 U.S. at 530-31, 58 S.Ct. 651; 1 M. Norris, Supra, § 564, at 637 & n.19 ("Because of...