Pino v. Trans-Atlantic Marine, Inc., TRANS-ATLANTIC

• Decision Date: 30 December 1970
• Docket Number: TRANS-ATLANTIC
• Citation: 265 N.E.2d 583,358 Mass. 498
• Parties: , 1971 A.M.C. 1721 John PINO v.MARINE, INC., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 583

265 N.E.2d 583

358 Mass. 498, 1971 A.M.C. 1721

John PINO v. TRANS-ATLANTIC MARINE, INC., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 6, 1970.

Decided Dec. 30, 1970.

Solomon Sandler, Gloucester, for defendant.

Katz & Kaalan, David B. Kaplan, Boston, for plaintiff.

Before SPALDING, CUTTER, KIRK, SPIEGEL, REARDON and QUIRICO, JJ.

SPIEGEL, Justice.

This is a bill in equity in which the plaintiff seeks, inter alia, to restrain the defendants ¹ 'from further interference with the plaintiff's employability by excluding him from insurance coverage,' The defendants appealed from a final decree assessing damages 'of the plaintiff as against' the defendants and permanently enjoining them from 'any and all intentional and malicious acts which prevent or interfere with the plaintiff's employment as a seaman or fisherman.' ² The evidence is reported.

We state pertinent findings of the trial judge. 'Trans-Atlantic * * * is an underwriting 'manager' for several insurance companies writing marine risks. Enos is responsible for all marine underwriting decisions of Trans-Atlantic. Trans-Atlantic is empowered on behalf of the * * * companies to make all decisions as to the risks to be accepted, to furnish the insurance, to establish conditions in respect thereof and to set the rates. * * * Owners or operators of vessels procure this insurance. It includes protection and coverage in respect of seamen's injuries and claims arising therefrom under general maritime and admiralty law and the provisions of the Jones Act. Approximately 75 per cent of the fishing vessels sailing out of the Port of Gloucester are covered by this type of insurance procured through Trans-Atlantic. In 1967 * * * (the plaintiff), while serving as a member of the crew on F/V WILD DUCK, sustained an injury to his hand which required an operation in May, 1968. He returned to his occupation as a fisherman in late summer, 1968 and in the fall that year he became a member of the crew on F/V ST. ANTHONY, worked aboard said vessel until January, 1969 without incident or injury and performed his duties to the satisfaction of the captain. He had * * * been granted regular employment on that vessel. In connection with the injury sustained on F/V WILD DUCK, * * * (the plaintiff) consulted * * * attorneys * * * who instituted legal action. The case is pending in the * * * Superior Court. In January, 1969, F/V ST. ANTHONY was tied up for conversion from a dragger to a seiner. At that time * * * (the plaintiff) was informed that when the vessel returned to sea, he would be included as part of the ship's complement. On or about March 7, 1969, Trans-Atlantic, knowing that the plaintiff was serving on the vessel, informed its skipper that protection and indemnity coverage would not extend to * * * (the plaintiff). As a result, the plaintiff's employment was terminated. * * * (He) has sought employment on a number of other vessels but, since Trans-Atlantic places the insurance on at least 75 per cent of the vessels in Gloucester, he has been unable to obtain any employment at sea' although 'there is a shortage of fishermen to man the vessels sailing from Gloucester.' The plaintiff 'has been a fisherman for practically all of his life and possesses no other substantial skills for other types of employment comparable in compensation to that received by him as a fisherman. As a fisherman * * * he earned about $7,800.00 a year.'

'It is not the policy or practice of * * * (the defendants) to refuse insurance coverage to a vessel whose crew includes a member who has sustained injury in the course of his employment, nor * * * to exclude such an injured seaman from coverage otherwise offered to the vessel.' Enos's reason for excluding the plaintiff was that the plaintiff's claim was 'baseless.'

The plaintiff, while a member of the crew, was provided with meals. 'At one of his meals, a lobster was served him which he was opening with a knife which slipped causing injury. The meal was served at a table with collapsible features.' The judge in his findings stated that the plaintiff 'testified that the fittings which held the table in a rigid position were faulty.' ³ He also stated there 'were justiciable issues in * * * (the plaintiff's) claim relating to whether * * * the injury occured in the course of his employment and whether * * * the table as part of the vessel was in good condition'; that he was not 'in any way deciding whether * * * (the plaintiff) * * * (was) entitled to recover on his claim * * * (and) that the claim and his legal action pending in the Superior Court * * * (was) not baseless.'

The denial of coverage to the plaintiff was 'not the result of a legitimate * * * business judgment. * * * (T)he real reason * * * was because * * * (the plaintiff) was prosecuting his claim for injuries with legal representation and, more particularly, because he had engaged the services of * * * (the plaintiff's lawyers.)'

'In the last year * * * (the defendants) have excluded from insurance coverage seven or eight other Gloucester fishermen who had made claims for personal injuries. All of these mem have prosecuted or are prosecuting their claims by retaining' the same attorneys as those who are representing the plaintiff in the case at bar.

It was 'reasonably foreseeable that the exclusion of the plaintiff from coverage * * * would result in his loss of employment' and 'Enos in fact knew that this would be the result of his actions.' The defendants 'intentionally took the action they did well knowing what the result would be.'

The judge ruled that (1) The 'actions' of the defendants in respect to the plaintiff 'were done intentionally, maliciously and within the technical meaning of the word 'malice' as used in our law.' (2) 'The actions of * * * (the defendants) constitute an unjustifiable and actionable interference with * * * (the plaintiff's) employment as a seaman.' (3) The actions of the defendants 'constitute a form of coercion which foreseeably may prevent or discourage injured seamen sailing out of Gloucester from seeking legal representation or legal representation of their untrammeled choice.' (4) The plaintiff 'has been deprived of his employment by reason of the actions of' the defendants and is entitled to damages. (5) The plaintiff 'is entitled to relief' enjoining the defendants from 'engaging in any malicious action which would deprive or interfere with * * * (the plaintiff's) employment as a seaman or fisherman.'

The first contention of the defendants, dealt with rather summarily in their brief, is that there can be no 'conspiracy' because the defendant Enos was the 'sole authority to determine the courses to be taken and the decisions to be made by way of settlement or otherwise on all claims brought against the company.' ⁴ However, the plaintiff's claims is not based on the theory of conspiracy, nor do the judge's findings and rulings rest on that theory. Therefore we see no need to engage in a discussion of this point. The defendants concede in their brief that the 'main issue' in the case before us is whether the actions of the defendants constitute an unjustifiable and actionable interference with the plaintiff's employment as a seaman.

The principal thrust of the defendants' arguments appears to point to the conclusion that they 'had the right not to issue protection coverage on individuals they did not want to insure in the absence of statutory or other regulations.' In support of this conclusion they state, inter alia, that the defendant Enos 'did not want to enter into contracts for the benefit of one who, in his opinion, had a baseless claim, and had a physical incapacity.' The latter statement is in utter disregard of the amply justified findings of the judge that the plaintiff's claim was not a baseless one and that the 'real reason' the defendants excluded the plaintiff from coverage was 'because he was prosecuting his claim for injuries with legal representation and more particularly, because he had engaged the services' of certain attorneys.

The defendants' arguments on this point also totally ignore the findings of the judge that the defendants have also excluded from coverage seven or eight other Gloucester fishermen who had nade claims for personal injuries and were represented by the same...