Bruce Everett v. Atlantic Sounding Company, Inc, et al

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Bruce Everett v. Atlantic Sounding Company, Inc, et al

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Case: 09-30622

Document: 00511182257

Page: 1

Date Filed: 07/22/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 22, 2010 N o . 09-30622 S u m m a r y Calendar Lyle W. Cayce Clerk

B R U C E WAYNE EVERETT P la in t iff-A p p e lla n t , Cross-Appellee v. A T L A N T I C SOUNDING COMPANY, INC.; WEEKS MARINE, INC. D e fe n d a n t s -A p p e lle e s , CrossA p p e lla n ts

A p p e a ls from the United States District Court for the Eastern District of Louisiana U S D C No. 2:07-cv-05302

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* P la in t iff Bruce Everett and defendants Weeks Marine, Inc. ("Weeks") and A t la n t ic Sounding Co., Inc. ("Atlantic") appeal from the district court's award of d a m a g e s to Everett for injuries suffered onboard the E.W. ELLEFSEN. We a f f i r m the district court in part, reverse in part, and remand this case for c o r r e c t io n of the judgment entered for Everett.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-30622

Document: 00511182257

Page: 2

Date Filed: 07/22/2010

No. 09-30622 I n April 2007, Atlantic hired Everett to work as an oiler onboard the E.W. E L L E F S E N , a dredge vessel owned by Weeks, Atlantic's parent company. On A u g u s t 5, 2007, Everett slipped while moving a hose onboard the vessel and in ju r e d his tailbone and lower back. Less than a month later, Everett filed suit a g a in s t Atlantic and Weeks, claiming that defendants' negligence and the u n s e a w o r t h in e s s of the E.W. ELLEFSEN caused his injury. He sought damages u n d e r general maritime law and the Jones Act, see 46 U.S.C. § 30104 (2006), and p a y m e n t of maintenance and cure. Generally, after an accident, a seaman's e m p lo y e r must pay maintenance and cure, or in other words, "food and lodging o f the kind and quality [the injured seaman] would have received aboard the s h ip " and reimbursement for "medical expenses actually incurred." Boudreaux v . United States, 280 F.3d 461, 468 (5th Cir. 2002). Everett also sought damages fo r lost wages, loss of future earning capacity, and payment of attorney's fees for d e fe n d a n t s ' failure to pay for any maintenance and cure other than his visit to t h e emergency room immediately following the accident. After his emergency r o o m visit, Everett received additional medical treatment for his back injury, a n d he alleges that the injury prevents him from returning to heavy labor s im ila r to that he performed before the accident. A fte r a bench trial, the district court found that Everett's injury resulted fr o m defendants' negligence and the consequent unseaworthiness of the E.W. E L L E F S E N , but that 20% of the fault for the accident could be attributed to E v e r e t t 's own negligence. It therefore awarded Everett $50,000 for past pain a n d suffering, but reduced the award by 20% to $40,000. It also awarded E v e r e tt maintenance and cure. An employer's obligation to pay maintenance a n d cure terminates when an injured seamen attains maximum cure, i.e., " `w h e r e it is probable that further treatment will result in no betterment in the c la im a n t 's condition.'" Id. at 468 (quoting Rashidi v. Am. President Lines, 96 F .3 d 124, 128 (5th Cir.1996)). The district court found that Everett attained 2

Case: 09-30622

Document: 00511182257

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Date Filed: 07/22/2010

No. 09-30622 m a x im u m cure on November 7, 2007, when he began performing general c a r p e n t r y work. As such, the district court awarded Everett maintenance

p a y m e n t s of $20 per day from the date of his accident until November 7 and a c u r e payment covering the cost of his medical expenses up to November 7. The c o u r t docked Everett's cure award for his contributory negligence, reducing it fr o m $6,796.75 to $5,437.40, but did not similarly limit Everett's maintenance a w a r d .1 E v e r e t t now appeals the district court's determination that he reached m a x im u m cure on November 7, 2007, the court's decision not to award r e im b u r s e m e n t for medical expenses incurred past that date, its failure to award d a m a g e s for lost wages and his future loss of earning capacity, and its limitation o f his cure award for contributory negligence. Conversely, Weeks and Atlantic a p p e a l the district court's award of any maintenance and cure at all, as they a r g u e that Everett's failure to disclose his status as HIV positive should bar any aw ard. After reviewing the evidence, we find that it would waste judicial

r e s o u r c e s to write a lengthy opinion, as our opinion would merely restate the a n a ly s is already provided in the district court's excellent opinion. Accordingly, we affirm the district court's judgment, with one exception. We find that the court erred in reducing Everett's cure award for his c o n t r ib u t o r y negligence, since "a seaman's negligence does not negate a s h ip o w n e r 's duty to pay maintenance and cure." Bertram v. Freeport McMoran, I n c ., 35 F.3d 1008, 1013 (5th Cir. 1994). It appears that the district court's error w a s inadvertent, as the court itself acknowledged that an employer's obligation

In its opinion, the district court also reduced Everett's maintenance award to account for his contributory negligence. However, in the judgment entered by the district court, the court did not reduce the maintenance award for contributory negligence. As will be explained below, maintenance awards generally may not be reduced for contributory negligence. The district court's judgment properly corrected the erroneous limitation of Everett's maintenance award in its opinion, but did not similarly correct the opinion's limitation of Everett's cure award.

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Case: 09-30622

Document: 00511182257

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Date Filed: 07/22/2010

No. 09-30622 t o provide maintenance and cure arises independently "of any other source of r e c o v e r y for the seaman," id., and that therefore a seaman or employer's n e g lig e n c e is not at issue in such circumstances. See Brister v. AWI, Inc., 946 F .2 d 350, 360 (5th Cir. 1991). That said, we have previously recognized that "a s e a m a n clearly can receive only one recovery for his medical expenses." Id. at 361. As a result, a seamen is not entitled to maintenance and cure that

d u p lic a te s other awarded damages. However, in this case, it does not appear t h a t the district court's award of $40,000 in damages covered any of Everett's m e d ic a l expenses, which would justify limiting his cure award. The district c o u r t characterized its award of $40,000 as remedying Everett's past pain and s u ffe r in g , while it stated that "[w]ith respect to the Plaintiff's benefits for cure, . . . the Court finds that an award of $6,796.75 for past medical expenses is a p p r o p r ia te ." Consequently, the district court's limitation of its cure award to $ 5 ,4 3 7 .4 0 was erroneous; instead, Everett is entitled to cure award of $6,796.75, w it h o u t reduction for his contributory negligence. C o n s e q u e n t l y , the district court is AFFIRMED in part and REVERSED in part, and this case is REMANDED for correction of the judgment entered in fa v o r of Everett.

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