Zalimeni v. Cooper Marine & Timberlands Corp., CIVIL ACTION: 1:19-00245-KD-C
| Decision Date | 10 March 2020 |
| Docket Number | CIVIL ACTION: 1:19-00245-KD-C |
| Citation | 438 F.Supp.3d 1331 |
| Parties | Donald A. ZALIMENI, Jr., Plaintiff, v. COOPER MARINE AND TIMBERLANDS CORP., et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
Michael G. Huey, Huey Law Firm LLC, Mobile, AL, Stephen J. Johnson, Pro Hac Vice, Houma, LA, for Plaintiff.
M. Warren Butler, Weathers Preston Bolt, Scott D. Stevens, Starnes Davis Florie LLP, Mobile, AL, for Defendants.
This matter is before the Court on the Defendants' motion for summary judgment (Doc. 22), the Plaintiffs' Response (Doc. 25) and the Defendants' Reply (Doc. 26).
On May 23, 2019, Plaintiff Donald A. Zalimeni, Jr. (Zalimeni) initiated this maritime action (Jones Act case) for negligence, unseaworthiness, and maintenance and cure, against Defendants Cooper Marine and Timberlands Corp. (CMT) (an Alabama entity) and Cooper T. Smith Stevedoring Co., Inc. (Smith) (a Louisiana entity). (Doc. 1). Notably, Zalimeni acknowledges that suit was filed after expiration of the statute of limitations but alleges that he was lulled into missing the deadline due to representations of Defendants, thus he alleges they fraudulent concealed to toll the applicable statute of limitations. (Doc. 1 at ¶29).2 According to Zalimeni, at no time did Defendants' representatives inform him of the three (3) year statute of limitations for the Jones Act, or the general maritime law statute of limitations, that he had substantive rights under the Jones Act or general maritime law, and/or that he needed to file suit before 2019 to protect his rights to damages and future benefits, including medical treatment.
Specifically, this case stems from injuries Zalimeni suffered on May 6, 2016 (traumatic amputation of four (4) fingers on his left hand). (Doc. 1). In May 2016 Zalimeni was employed by CMT as a derrick crane3 operator on the vessel MOODY, moored at the Chico Terminal in Mobile County, Alabama (Port of Mobile). (Id. at 2) The A-frame shive on the vessel was defective and prior to this date, had been "spitting" grease on the A-frame deck, causing the crew to place absorbent material on the deck to soak up the excess grease. (Id. at 3). From time to time, the absorbent material would become entangled with the crane's boom line and have to be removed. (Id.) At 6:00 p.m. Zalimeni climbed the stairs to the A-frame section of the crane to grease and inspect the shive. (Id.) After completing the inspection and cleaning the crane's boom line, Zalimeni started to leave area. (Id. at 4). Simultaneously, another individual moved the crane's boom to place it in its cradle. (Doc. 1 at 4). The boom movement caused the vessel to shift, which when combined with the greasy deck, caused Zalimeni to slip and fall. (Id.) While trying to stop his fall, with arms outreached, Zalimeni's gloved left hand was pulled into the shive, resulting in severe damage. (Id.) Four (4) fingers on Zalimeni's left hand were ultimately surgically amputated, and he also sustained injuries to his left arm and cervical spine. (Id.)
Thereafter, from 2016 - May 2019 Zalimeni met four (4) times with CMT's Vice-President Claims Director Bob Pittman (Pittman) and Assistant Vice-President Claims Amy Slay (Slay) -- in May 2016, December 2017, March 2018, and August 2018. (Doc. 22 at 3; Doc. 22-2 (Defs' Initial Discl. at 1-2)). Per Zalimeni's complaint, at these meetings Defendants' representatives assured him that the insurance company would "take care of him," that he did not need an attorney, that he would receive significantly less money if he hired an attorney, and that if he did, the insurance company would stop his benefits. (Doc. 1).
Evidence of record supports the following facts: The initial meeting -- with Pittman, Slay and other managerial employees -- occurred a few weeks after the accident in May 2016, at which time Pittman explained Zalimeni's medical and wage benefits. (Doc. 22-1 at 2-4 (Dep. Zalimeni)). They explained that Defendants would cover Zalimeni's medical expenses, and how the process "would go with trying to get me on the road to recovery." (Id. at 4 (Dep. Zalimeni)). Per Zalimeni, Pittman told him that (Id. at 5-6 (Dep. Zalimeni)). Zalimeni does not recall Pittman mentioning anything about a three (3) year time limit within which to file suit. (Id. at 5 (Dep. Zalimeni)).
At the second meeting with Pittman and Slay in December 2017, the parties discussed Zalimeni's treating physician's maximum medical improvement determination (MMI by Dr. Barbour) and settlement of his claims. (Doc. 22-1 at 8, 19 (Dep. Zalimeni)). Pittman told Zalimeni he was welcome to get an attorney if he believed it necessary, adding that if he retained one he or she would take a percentage of what would be ultimately recovered. (Doc. 22-1 at 9-11 (Dep. Zalimeni)). Zalimeni is "certain" that Pittman did not say anything about a three (3) year time limit within which to file suit. (Id. at 10 (Dep. Zalimeni); Doc. 25-6 (Aff. Zalimeni at 1)).
At the third meeting in March 2018 with Pittman, Slay, and Zalimeni's wife and father, a second opinion had been obtained (Dr. Burkett) that Zalimeni had reached maximum medical improvement. Zalimeni was also not satisfied because he wanted to find a doctor who could help him with his pain and get him back to work. (Doc. 22-1 at 11-12 (Dep. Zalimeni)). Pittman again told Zalimeni that he was free to retain an attorney. (Id. at 12 (Dep. Zalimeni)). Per Zalimeni, Pittman did not tell him that he had three (3) years before the statute of limitations expired for his claim. (Id.)
At the fourth meeting with Pittman, Slay and Zalimeni's wife, in August 2018, Zalimeni had been undergoing pain management treatment with Dr. Knopp, and they discussed his treatment plan. They again discussed settlement and Pittman again told Zalimeni that he free to retain an attorney. (Doc. 22-1 at 52 (Dep. Zalimeni)). Pittman also stated that they were going to have to settle the case. (Id.) However, based on the fact that Cooper would cease paying benefits, Zalimeni did not think it was in his best interest to hire an attorney. (Doc. 25-6 (Aff. Zalimeni at ¶11)). On August 28, 2018, Defendants gave Zalimeni what they characterized as a $20,000 lost wage advance. (Doc. 25-3 at 39-40, 56-57 (Dep. Slay)).
Suzanne Zalimeni, Zalimeni's wife, asserts that she attended the March 2018 and August 2018 meeting. (Doc. 25-8 at 1-2 (Aff. S. Zalimeni)). She contends that at the March 2018 meeting Defendants stated that they could hire a lawyer but all funding would stop and Zalimeni would lose his job. (Id. ) Settlement was also discussed. (Id.) At the August 2018 meeting, an offer of settlement was made but it was tabled in favor of "sorting out the treatment plan" for Zalimeni. (Id. at 2). "Based on the general tone of these meetings" she and Zalimeni felt that "the company was looking out for our bests interests" and "would ultimately take care of [Zalimeni]". (Id. at 3 at ¶10). Slay did not notify Zalimeni that his claim was coming to an end or that he only had a certain time period within which to bring a claim. (Id. at 3). Instead, Defendants appeared "eager" to settle. (Id.)
Defendants assert that in March or April 2019, they had conversations with Zalimeni mentioning that "we needed to settle his claim[,]" but without stating specifically that his payments would stop soon or giving him a timeline. (Doc. 25-3 at 58-59 (Dep. Slay)). Slay decided when to stop payments to Zalimeni based on his reaching MMI. (Id. at 59-60 (Dep. Slay)).
While Zalimeni regularly received his maintenance check every other Thursday, on May 16, 2019 he did not. On May 17, 2019, Zalimeni inquired about his benefits with Slay and she told him via telephone, without explanation, the benefits had stopped and that he needed to think of a settlement and get back with her. (Doc. 25-6 at 2 (Aff. Zalimeni)). Slay did not tell Zalimeni that the statute of limitations had run on his claim. (Id. at 1 (Aff. Zalimeni); Doc. 25-3 at 39 (Dep. Slay)). However, Defendants were still willing to entertain discussions with Zalimeni to settle his case even after the 3-year statute of limitations expired. (Id. at 39 (Dep. Slay)).
In May 2019, when his payments stopped, Zalimeni searched Alabama workers' compensation laws on-line, as he believed his claim fell under same based on prior experience. (Doc. 25 at 10; Doc. 25-4 at 20-21 (Dep. Zalimeni); Doc. 25-6 at 2 (Aff. Zalimeni)). From that, he believed he had two (2) years from the date of his last check to retain counsel and file suit. (Doc. 25-4 at 21 (Dep. Zalimeni)). On May 21, 2019, Zalimeni retained counsel and was informed of his rights and remedies, including time limits. (Doc. 25 at 11).
Defendants paid Maintenance/Cure for Zalimeni at the rate of $40/day, until the 3-year anniversary of the incident (Doc. 25-3 at 12-13, 43-44 (Dep. Slay)), and paid medical expenses for him beyond the 3-year mark. (Doc. 25 at 2). Indeed, Defendants paid a medical bill for Zalimeni's May 14, 2019 treatment and May 15, 2019 treatment; they did not refuse or tell the physician or Zalimeni that such would not be paid due to the expiration of the 3-year statute of limitations period for his claim. (Doc. 25-3 at 50-52 (Dep. Slay)). Similarly, Defendants paid bills for prescriptions Zalimeni incurred on May 20, May 23, June 6, and July 12, 2019. (Id. at 53-55 (Dep. Slay)). Overall, Defendants paid Zalimeni's medical bills from May 11, 2016 through July 12, 2019. (Doc. 25-5 (payment history)).
According to Zalimeni, he relied on and was induced by the representations made by Defendants, which caused him not to retain an attorney, gave him a false sense of security...
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