Johnson v. Cenac Towing Inc, et al
REVISED October 24, 2008 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit
September 24, 2008 Charles R. Fulbruge III Clerk
Plaintiff - Appellee v. CENAC TOWING INC. Defendant - Appellant
Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:06-CV-914
Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges. EDITH H. JONES, Chief Judge: Leroy Johnson ("Johnson") sustained injuries while working as a seaman for Cenac Towing, Inc. ("Cenac"). He sued Cenac in federal court for negligence under the Jones Act, unseaworthiness, and maintenance and cure benefits. Following a bench trial, the district court denied maintenance and cure because Johnson willfully concealed his preexisting physical problems from Cenac, but the court awarded him damages under the Jones Act. Cenac appeals. We must vacate and remand for further consideration of Johnson's possible contributory negligence, but otherwise affirm the court's rulings.
No. 07-30113 BACKGROUND Johnson worked as a tankerman for Cenac from May 2003 to May 2004 and from May 2005 to December 2005. Before each period of employment with Cenac, he filled out an employment application and underwent a preemployment physical examination. On both his 2003 and 2005 applications, he indicated that he had never suffered any on-the-job injuries and that he did not have any physical conditions which might interfere with or hinder his job performance. For Cenac's pre-employment physicals, Johnson completed
medical history questionnaires in which he indicated that he had never hurt his back and never received disability compensation. He did acknowledge that he had undergone surgery, but only for a shoulder injury in 1987. Johnson's answers on his applications and questionnaires were not truthful. Before he applied to work for Cenac, he had been twice injured while working for other offshore companies. In 1994, Johnson injured his neck and back in an on-the-job accident, which left him disabled for at least ten months. He underwent neck surgery almost a year later as a result of the accident. In 2001, Johnson injured his back again in an on-the-job accident and was disabled for about thirteen months. He received steroid injections to treat his back injury and experienced other ongoing urological problems as a result of the accident. After each accident, Johnson obtained compensation benefits, sued his employer, and collected damages. He intentionally concealed all of these prior accidents, injuries, and claims from Cenac during the hiring process. The doctor who administered Johnson's two physical examinations on behalf of Cenac stated that had he known of Johnson's prior work-related accidents he would not have approved him for employment because of the "possibility of further endangering
No. 07-30113 himself in any kind of way . . . in this case his neck and his back and to try to protect others around him." On December 14, 2005, Johnson injured his back again while working as a tankerman aboard a Cenac vessel that was towing barges near Mobile, Alabama. Johnson and coworker Louis Celestine were carrying a 175-pound cross-over hose aboard one of the barges when Celestine tripped and dropped his part of the load. Suddenly bearing a heavier weight, Johnson exclaimed that he had hurt his back. He immediately reported the accident and his injury to the crew. For several months, Johnson was treated for low back pain and urological problems. The district court found that these injuries resulted from an
aggravation of Johnson's pre-existing back condition stemming from his 2001 accident. Johnson incurred $38,095.80 in medical expenses. Some of the expenses inexplicably were paid by the Blue Cross Blue Shield group health insurance plan that Cenac offers to cover only employees' non-work-related injuries.1 Cenac pays one hundred percent of its employees' insurance premiums for the plan. Johnson filed suit against Cenac for negligence under the Jones Act, 46 U.S.C. § 30104, unseaworthiness under general maritime law, and maintenance and cure. Cenac countered that Johnson was not entitled to
It is unclear whether Blue Cross paid these expenses because Johnson falsely told his health care providers that his injuries were non-work-related or whether Blue Cross erroneously assumed that its policy covered Johnson's injuries. The district court made no factual findings on this issue. On appeal, Cenac argues that Johnson lied to his health care providers, but it provides no citations to the record to support this claim. Our independent review of the record indicates that Cenac offered no evidence indicating that Johnson lied to his health care providers about the nature of his injuries. He may have done so, but we cannot assume that he lied simply because Blue Cross paid his medical bills for work-related injuries.
No. 07-30113 recover either damages or maintenance and cure because he willfully concealed his prior injuries during Cenac's hiring process. At a minimum, it asserted, any damages awarded to Johnson should be reduced because the concealment rendered him contributorily negligent. Cenac also argued that if Johnson were awarded damages for past medical expenses, the company should receive a setoff for the health insurance payments made by the Blue Cross plan, which it established and fully funded. After a two day bench trial, the district court denied maintenance and cure; awarded judgment as a matter of law for Cenac on unseaworthiness; found Cenac entirely at fault for Johnson's injuries; awarded Johnson $130,226 in Jones Act damages, including all past medical expenses; and ruled that
payments made by Blue Cross were a collateral source not subject to set-off against Johnson's award. On appeal, Cenac argues that the district court erred in (1) holding that Johnson's intentional concealment of material medical facts did not bar his Jones Act negligence claim; (2) finding that Johnson was not contributorily negligent for concealing his prior injuries; and (3) denying its request to deduct health insurance payments Johnson received from his damage award for past medical expenses. DISCUSSION A. McCorpen Defense and the Jones Act Generally, an employer "must pay maintenance and cure to any seaman who becomes ill or suffers an injury while in the service of the vessel, regardless of whether either party was negligent." Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1012 (5th Cir. 1994) (internal quotation marks omitted). An employer, however, is allowed to rely on certain legal defenses to deny a claim for maintenance and cure. Brown v. Parker Drilling Offshore Corp., 410 F.3d 4
No. 07-30113 166, 171 (5th Cir. 2005) (citing McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547 (5th Cir. 1968)). Among these, the McCorpen defense applies when an injured seaman has "willfully concealed from his employer a preexisting medical condition." Id. To establish a McCorpen defense, an employer must show that the seaman intentionally misrepresented or concealed medical facts; the nondisclosed facts were material to the employer's decision to hire the seaman; and a connection exists between the withheld information and the injury complained of in the lawsuit. Id. In this case, the district court found that all three elements of the McCorpen defense were satisfied and accordingly denied recovery for maintenance and cure. Cenac argued that its McCorpen defense should also bar Johnson's claim under the Jones Act, which holds an employer liable to a seamen for injuries "resulting in whole or in part from the negligence" of the employer or its employees or agents. 45 U.S.C. § 51; Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997) (en banc).2 But the district court disagreed, stating that "the existence of the McCorpen defense does not automatically taint a Jones Act claim." Cenac continues to urge that the McCorpen defense should extend to "any damages sought by a seaman for only the aggravation of his prior and intentionally concealed medical condition." This legal argument, which we review de novo on appeal, is foreclosed by precedent. The Supreme Court's decision in Still v. Norfolk & Western Railway Co., 368 U.S. 35, 82 S. Ct. 148
The Jones Act, 46 U.S.C. § 30104, makes the provisions of the Federal Employers' Liability Act ("FELA"), such as 45 U.S.C. § 51, applicable to seamen. Gautreaux, 107 F.3d at 335. Jones Act cases, therefore, follow cases under FELA. Brown, 410 F.3d at 178.
No. 07-30113 (1961), makes clear that a "seaman . . . is not barred from suit under the Jones Act because he conceals a material fact in applying for employment." Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 530 (9th Cir. 1962); Still, 368 U.S. at 35, 82 S. Ct. at 149 (holding that a railroad cannot "escape" liability under FELA "by proving that an [injured] employee . . . has obtained his job by making false representations upon which the railroad rightfully relied in hiring him").3 The district court correctly concluded that McCorpen does not bar a Jones Act claim. B. Contributory Negligence and the Jones Act Although the McCorpen rule is not applicable to a Jones Act negligence claim, contributory negligence is an affirmative defense that diminishes recovery in proportion to the seaman's fault. 45 U.S.C. § 53; see Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 127 S. Ct. 799, 802 (2007). To establish that a seaman is contributorily negligent, an employer must prove negligence and causation. See Sorrell, 127 S. Ct. at 807; see also Gautreaux, 107 F.3d at 338. A seaman is negligent if he fails to act with ordinary prudence under the circumstances. See Gautreaux, 107 F.3d at 339. "The circumstances of a seaman's employment include not only his reliance on his employer to provide a safe work environment but also his own experience, training, or education. The reasonable person standard, therefore, [in] a Jones Act negligence action becomes one of the reasonable seaman in like circumstances." Id. (emphasis in original). The standard of causation in Jones Act cases is not demanding.4 See,
See also Jauch v. Nautical Service, Inc., 470 F.3d 207, 213-14 (5th Cir. 2006); Brown, 410 F.3d at 178; Compton v. Luckenbach Overseas Corp., 425 F.2d 1130, 1133 (2d Cir. 1970). In Sorrell, Justice Souter, joined by Justices Scalia and Alito, argues in a concurring opinion that the standard of causation in FELA cases, and thus Jones Act cases, is not more "relaxed" than in tort litigation generally. Sorrell, 127 S. Ct. at 809-12 (Souter, J., concurring).
No. 07-30113 e.g., Gautreaux, 107 F.3d at 335 ("[T]he Supreme Court [has] used the term `slightest' to describe the reduced standard of causation between the employer's negligence and the employee's injury in FELA § 51 cases."). To establish causation, an employer must show that a seaman's negligence "played any part, even the slightest, in producing the injury." Chisolm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir. 1982) (citing Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 448 (1957)). See also Sorrell, 127 S. Ct. at 802 (holding that the same causation standard applies to employer negligence and employee contributory negligence in FELA cases). Even under the Jones Act, however, a party must establish more than mere "but for" causation. See Gavagan v. United States, 955 F.2d 1016, 1019-20 (5th Cir. 1992) ("The negligence must be a `legal cause' of the injury."). The district court held that Johnson was not contributorily negligent for willfully concealing his previous injuries during Cenac's employment application process. The court cited Brown v. Parker Drilling Offshore Corp., supra, as the Fifth Circuit's confirmation "that the existence of the McCorpen defense does not automatically taint a Jones Act claim." The court then rejected Cenac's
"argument that if not for Johnson's misrepresentations, this accident would not have happened." It found that the "condition of Johnson's back and neck did not contribute to causing the accident," and the fact that Johnson sustained on-the-
He contends that this "relaxed" causation standard stems from a misunderstanding of Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 448 (1957). Id. at 809. To correct that misunderstanding, Justice Souter provides a detailed analysis of Rogers and related cases showing that it was not intended "to water down the common law requirement of proximate cause" in FELA cases. Id. at 811.
No. 07-30113 job injuries three years before his December 2005 accident did not make him contributorily negligent. In a bench tried admiralty case, a district court's findings concerning negligence and causation are findings of fact reviewable by this court only for clear error. See Gavagan, 955 F.2d at 1019. We entertain a strong presumption that the court's findings must be sustained even though this court might have weighed the evidence differently. This said, the court's decision on contributory negligence, which is fully paraphrased above, is hard to square with its recitation of facts elsewhere in the opinion. The district court found that Johnson's low-back pain caused by the 2005 accident was "an aggravation of a pre-existing back condition stemming from his 2001 maritime accident." Both injuries, as the court noted, affected his L5-S1 intervertebral disc. Going further, in its discussion of the McCorpen defense, the court found a clear connection, a "causal link," between Johnson's preemployment misrepresentations to Cenac and his current injury. It is likely true, as the court found, that Johnson's weakened back did not cause Celestine to drop the 175-pound hose they were both carrying. But it also seems likely that Johnson would never have been employed by Cenac had he revealed the previous injuries, and having misrepresented himself onto the payroll, he set himself up for the sort of aggravating injury found by the district court. Both this court and the Supreme Court have previously considered the contributory negligence ramifications of preemployment deception. In Still, the Supreme Court reversed and remanded for trial after rejecting the proposition that a concealed preemployment physical defect bars FELA relief as a matter of law. Still, 368 U.S. at 46, 82 S. Ct. at 154-55. Nevertheless, the Court noted the
No. 07-30113 relevance, in appropriate circumstances, of such a pre-existing condition to ascertaining whether the injury complained of was caused by the railroad's negligence
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?