Al-Qari v. Am. S.S. Co.

• Docket Number: 21-cv-10650
• Decision Date: 31 August 2023
• Parties: HUSSEIN AL QARI, Plaintiff, v. AMERICAN STEAMSHIP COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

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HUSSEIN AL QARI, Plaintiff, v. AMERICAN STEAMSHIP COMPANY, Defendant.

No. 21-cv-10650

United States District Court, E.D. Michigan, Southern Division

August 31, 2023

OPINION AND ORDER

(1) DENYING PLAINTIFF HUSSEIN AL QARI'S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO. 24), AND

(2) GRANTING DEFENDANT AMERICAN STEAMSHIP COMPANY'S MOTION FOR SUMMARY JUDGMENT (ECF NO 28)

PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE.

This is a maritime personal injury action arising from injuries Plaintiff Hussein Al Qari alleges he suffered while working as a Steward's Assistant aboard Defendant American Steamship Company's bulk carrier, the M/V H. Lee White. Plaintiff asserts claims for (1) negligence under the Jones Act, 46 U.S.C. § 30101, et seq., (2) unseaworthiness under the general maritime law of the United States, and (3) maintenance and cure benefits under general maritime law.

Now before the Court are (1) Plaintiff's Motion for Partial Summary Judgment as to Liability and Causation Under the Jones Act and Unseaworthiness (ECF No. 24), and (2) Defendant's Motion for Summary Judgment (ECF No. 28).

Both motions have been fully briefed. The Court has carefully considered the parties' submissions and does not believe that oral argument will aid in its disposition of this matter; therefore, it is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2).

For the reasons that follow, the Court DENIES Plaintiff's Motion for Partial Summary Judgment as to Liability and Causation Under the Jones Act and Unseaworthiness, and GRANTS Defendant's Motion for Summary Judgment.

I. BACKGROUND

A. Factual Background

1. Plaintiff Hussein Al Qari

Plaintiff Hussein Al Qari has served as a merchant mariner for more than ten years on the Great Lakes, with most of his professional experience as either a member of the Galley Department or in the Deck Department as part of the unlicensed crew. (ECF No. 35-1, Pl.'s Dep. at pp. 25-27, PageID.1263-65.) Plaintiff had served on Defendant American Steamship Company's vessel, the M/V H. Lee White, for multiple navigating seasons. (Id. at pp. 26, 55, PageID.1264, 1293.)

Plaintiff was employed as a Steward's Assistant aboard the M/V H. Lee White in or around November 2020. His responsibilities as a Steward's Assistant included the ordinary duties of the Galley Department, including cooking, cleaning, stocking items, and sanitation. (Id. at p. 27, PageID.1265.) These tasks included bringing dry goods up to the galley from a storage locker in the engine room of the vessel, which was located one deck below the galley. (Id. at pp. 51-53, PageID.1289-91.)

Plaintiff testified that he performed this work - carrying supplies from the engine room storage locker up the stairs to the galley to restock the galley -“[a]lways, all the time,” and that he considered it “usual” and routine work and an ordinary part of his responsibilities as a Steward's Assistant. (Id. at pp. 56-57, 73, 106, PageID.1294-95, 1311, 1344.) He would decide what and how much of the supplies he needed for the week, including replacement goods such as paper towels, cleaning supplies, and coffee, and he would decide how he was going to bring those supplies up the stairs to the galley. (Id. at pp. 57-58, PageID.1295-96.)

2. The November 5, 2020, accident

Plaintiff alleges that on November 5, 2020, he went to the engine room locker to pick up some supplies for the galley. (ECF No. 35-1, Pl.'s Dep. at p. 46, PageID.1284.) After gathering the supplies, Plaintiff determined that he would need to make multiple trips. (Id. at p. 78, PageID.1316.) Plaintiff testified that there was nothing unusual or dangerous about the supplies he gathered, that he was not in a rush, nothing prevented him from making multiple trips to carry the supplies, and that he never complained to anyone about having to carry the supplies up the stairs to the galley. (Id. at pp. 72, 78, PageID.1310, 1316.) He decided to carry a cardboard box containing six plastic coffee containers to the galley. (Id. at pp. 46, 60-61, PageID.1284, 1298-99.) Plaintiff stated that the Ship's cook had previously instructed him “when you go to pick up the supply [sic] including the coffee, take all of them, take the box of the coffee.” (Id. at p. 104, PageID.1342.)

Plaintiff proceeded to climb the stairs with one hand on the stairway's railing while carrying the box containing six cans of coffee grounds using his other hand. (Id. at pp. 15, 83, PageID.1253, 1321.) Plaintiff states that, after going up about five to eight steps of the stairs, the box with the coffee started to slip or fall and so he let go of the handrail to try to “catch” the box. He then lost his balance and fell down the stairs. (Id.) Plaintiff testified that he tried to catch the box because he was afraid it could hit another crew member potentially climbing the stairs behind him, although he did not see or hear anyone ahead of or behind him. (Id. at pp. 81-82, PageID.1319-20.)

Plaintiff stated at his deposition that there was nothing wrong with the box of coffee, that it was not broken or falling apart, it was not too heavy, and that this is the way he has “always” carried the coffee up the stairs to the galley. (Id. at pp. 6061, 78-79, PageID.1298-99, 1316-17.) Plaintiff stated that the lighting in the engine room was good that day, that there was nothing wrong with the stairs themselves, the stairs were not slippery, he was well rested, and that his fall was just an accident. (Id. at pp. 49, 81, 90, PageID.1287, 1319, 1328.) Specifically, Plaintiff testified at his deposition:

Q: [by Defendant's attorney] Would you agree that your fall was just an accident?

A: Yes

Q: There's nothing wrong with the boat or the crew.

A: No

Q: Did you ever complain to anyone, officers, office, union, coast guard, anyone about any aspect of your work at American Steamship Company?

A: No, I did not.

(Id. at p. 90, PageID.1328.)

Plaintiff alleges that he was seriously injured as a result of falling down the stairs. He was found, after the accident, by another crew member, and he then departed the vessel at the next port of call to seek medical attention. (Id. at pp. 6465, PageID.1302-03.) Plaintiff has not worked since the accident. (Id. at p. 100, PageID.1338.)

3. Defendant provides for Plaintiff's medical care following the accident

Defendant states that, shortly after the accident, it assigned Plaintiff a professional nurse case manager from Medical Solution Services (MSS), which serves as Defendant's remote medical advisory service, providing nurse case management service and care coordination for mariners who may fall ill or become injured while aboard a vessel. Nikki Cremeans, MSS Care Coordination Manager for Defendant, was assigned to be Plaintiff's nurse case manager.

On December 7, 2020, Plaintiff's counsel sent a letter to Nurse Cremeans, advising that he represented Plaintiff and stating:

Please do not contact [Plaintiff] again. I will send a copy of this letter to American Steamship Company and request they reimburse Laura Busen a a [sic] local Care Coordinator Manager. She is more familiar with our Michigan doctors.

(ECF No. 28-3, PageID.670.)

Ms. Busen first met with Plaintiff on December 21, 2020, and appears to have worked with Plaintiff since then through at least the filing of Defendant's December 1, 2022, motion for summary judgment. (See ECF No. 28-6, Busen Invoices, PageID.678.)

On January 31, 2021, counsel for Defendant responded to Plaintiff's counsel's December 7, 2020 letter to Nurse Cremeans, stating, in relevant part:

We are in receipt of your letter, dated December 7, 2020 addressed to Nikki Cremeans, Care Coordination Manager for Medical Solution Services (“MSS”)....

In your letter, you advise Ms. Cremeans that you represent Hussein Al Qari. You instruct her not to contact him again, and indicate some future intent to ask American Steamship Company to reimburse a care coordination manager of your choosing.

As you may know, MSS serves as American Steamship Company's remote medical advisory service. In addition to that function, MSS also provides nurse case management and care coordination for mariners who may fall ill or be injured while aboard American Steamship Company vessels. This is the role that Ms. Cremeans was fulfilling with respect to Mr. Al Qari's care. She would coordinate his visits with his doctors, ensure that he was able to and did attend his appointments, and then help facilitate the reproduction of medical records relating to those appointments. If Mr. Al Qari (or any other mariner, for that matter) needed a referral to another physician or provider, Ms. Cremeans would have been in a position to help facilitate the referral.

American Steamship Company views nurse case management and care coordination as one of the most important and effective methods of ensuring that mariners allegedly ill or injured receive the care they need. The involvement of the care coordination manager allows the mariner to focus on his or her recuperation, rather than the logistics of setting appointments. We understand, however, that we cannot force Mr. Al Qari (or any other mariner) to accept this assistance. To that end, if it is truly Mr. Al Qari's intention to forgo nurse case management and care coordination, we will abide by your instruction that MSS personnel no longer contact Mr. Al Qari. The expense of a nurse case manager and care coordinator, however, is not a component of cure, in that the nurse case manager and care coordinator is not involved in the provision of medical treatment. As such, American Steamship Company will not pay for or reimburse the cost of a nurse case manager or care coordinator handpicked by a mariner's attorney. (If you have

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