Barnes v. Sea Hawaii Rafting, LLC et al

Filing 330

ORDER GRANTING MAINTENANCE AMOUNT CURRENTLY DUE TO PLAINTIFF BARNES BY DEFENDANT SEA HAWAII RAFTING, LLC re 327 - Signed by JUDGE ALAN C. KAY on 6/20/2018. In accordance with the Ninth Circuit's directive and this Court's minu te order filed May 31, 2018, ECF No. 324 , and based upon the above earlier orders and findings by this Court, the Court FINDS AND ORDERS that Defendant SHR, in personam, owes Plaintiff Barnes for: (1) Maintenance from July 3, 2012 to June 20, 2018 (a total of 2,179 days), which, at the rate of $34 per day, and subtracting maintenance payments that SHR has already made, 2 is the sum of $72,160.34 subject to (1) potential upward increase at trial and (2) a determ ination whether Plaintiff Barnes has reached maximum cure on an earlier date; and (2) Additional maintenance at the rate of $34 per day will be ordered, subject to potential upward increase at trial, until Plaintiff Barnes has r eached maximum cure. (emt, )COURT'S CERTIFICATE of Service - Kris Henry, aka Kristin Kimo Henry shall be served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on June 20, 2018 June 21, 2018. Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Modified on 6/20/2018 (emt, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
)
v.
)
)
SEA HAWAII RAFTING, LLC, )
KRIS HENRY, M/V TEHANI, )
et al.
)
)
Defendants.
)
)
CHAD BARRY BARNES,

Civ. No. 13-00002 ACK-RLP

ORDER GRANTING MAINTENANCE AMOUNT CURRENTLY DUE TO
PLAINTIFF BARNES BY DEFENDANT SEA HAWAII RAFTING, LLC
On May 29, 2018, the Court entered a minute order
stating, among other things, that it “intend[ed] to issue a
judgment [against Sea Hawaii Rafting, LLC (“SHR”)] entitling
Plaintiff Barnes to maintenance from the date of his injury to
the current date at the rate of $34 per day, subject to any
increase that Plaintiff Barnes may establish at trial.”
322; see also ECF No. 324.

ECF No.

The minute order gave Defendant

Henry, because he is both a personally named defendant and the
owner of SHR, until June 5, 2018, to file any opposition the
proposed judgment being entered.

ECF No. 322.

On June 5, 2018, Defendant Henry filed a letter
objecting to entry of the proposed judgment.

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ECF No. 326.

In

Defendant Henry’s objection, he stated that he needed to consult
with an attorney prior to any proposed judgment being entered.
Accordingly, on June 7, 2018, the Court entered a
minute order granting Defendant Henry until June 19, 2018, to
obtain counsel and to file any additional opposition to the
proposed judgment.

ECF No. 327.

The minute order further

stated that Plaintiff Barnes would be given an opportunity to
respond to any further objection from Defendant Henry.

Id.

On June 19, 2018, Defendant Henry filed an additional
objection to entry of the proposed judgment.

ECF No. 328.

In

his objection, Defendant Henry raises questions about whether
Plaintiff Barnes has already reached maximum cure.

Id.

Defendant Henry also: (1) makes discovery requests for certain
documents pertaining to Plaintiff Barnes’s claims for
maintenance and cure; and (2) states that he remains unable to
find counsel to represent him at the non-jury trial set for July
31, 2018.

Id. 1
Considering Defendant Henry’s objections to the

proposed judgment being entered, the Court finds it appropriate

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The Court has contacted Magistrate Judge Richard L. Puglisi to
hold a hearing next week regarding Defendants’ discovery
requests. The Court understands that the hearing will be held
next Monday, June 25, 2018.

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to instead issue an order setting forth the amount of
maintenance SHR owes Plaintiff Barnes as of the current date.
The Court’s ruling is based upon the Ninth Circuit’s
writ of mandamus.

See Barnes v. Sea Hawaii Rafting, LLC, 889

F.3d 517, 543 (9th Cir. 2018); see also Order Regarding
Maintenance at p. 1, ECF No. 313.

It is further based upon this

Court having: (1) found that SHR was Plaintiff Barnes’s Jones
Act employer and the owner of the M/V Tehani; (2) granted
Plaintiff Barnes’s Jones Act negligence per se claim against SHR
under Count XII of his First Amended Complaint; and (3) found
that Plaintiff Barnes is entitled to maintenance and cure from
July 3, 2012, the date of his injury, until he reaches maximum
cure.

See Order Granting in Part and Denying in Part

Plaintiff’s Motion for Summary Judgment for Payment of
Maintenance and Cure at p. 21, ECF No. 44; see also ECF No. 324
at pp. 1-2 (citing earlier orders).
The Ninth Circuit has defined “maximum cure” as the
point at which “the seaman is well or his condition is found to
be incurable.”

Permanente S. S. Corp. v. Martinez, 369 F.2d

297, 298 (9th Cir. 1966); Luksich v. Misetich, 140 F.2d 812, 814
(9th Cir. 1944) (“At most, recovery should not be extended
beyond the time when the maximum degree of improvement to [an
injured seaman’s] health is reached.”).

The Ninth Circuit made

the following ruling regarding Plaintiff Barnes’s injuries:
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“Due to his head injuries, he can no longer drive a car or
swim.”

Barnes, 889 F.3d at 525.
Defendants “bear[] the burden of proving by a

preponderance of the evidence that [Plaintiff Barnes] has
reached maximum cure” in relation to his injuries.

Hedges v.

Foss Mar. Co., No. 3:10-CV-05046 RBL, 2015 WL 3451347, at *5
(W.D. Wash. May 29, 2015) (collecting cases); Zermeno v. N. Pac.
Fishing, Inc., No. C16-1540RSL, 2017 WL 4843484, at *2 (W.D.
Wash. Oct. 26, 2017) (“[I]t is the shipowner’s burden to prove
by a preponderance of the evidence that plaintiff reached
maximum cure . . . .”).

Defendants in this matter have not yet

carried their burden to establish that Plaintiff Barnes has
reached maximum cure.

On the other hand, Plaintiff Barnes must

establish the amount of cure to which he is entitled.

E.g.,

Buenbrazo v. Ocean Alaska, LLC, No. C06-1347C, 2007 WL 7724765,
at *4 (W.D. Wash. Feb. 28, 2007) (stating that a seaman has a
“duty to show at trial . . . the amount of maintenance and cure
to which [he] is entitled”).
In its writ of mandamus, the Ninth Circuit expressed
concern over the lapse of time that has passed without Plaintiff
Barnes receiving any maintenance and urged the Court to proceed
expeditiously.

Barnes, 889 F.3d at 543.

In accordance with the

Ninth Circuit’s directive and this Court’s minute order filed
May 31, 2018, ECF No. 324, and based upon the above earlier
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orders and findings by this Court, the Court FINDS AND ORDERS
that Defendant SHR, in personam, owes Plaintiff Barnes for:
(1)

Maintenance from July 3, 2012 to June 20, 2018 (a
total of 2,179 days), which, at the rate of $34 per
day, and subtracting maintenance payments that SHR
has already made, 2 is the sum of $72,160.34 subject
to (1) potential upward increase at trial and (2) a
determination whether Plaintiff Barnes has reached
maximum cure on an earlier date; and

(2)

Additional maintenance at the rate of $34 per day
will be ordered, subject to potential upward
increase at trial, until Plaintiff Barnes has
reached maximum cure.

2

Plaintiff Barnes has already received two payments of $962.83
each from SHR. See Order Denying Plaintiff’s Third Motion for
Summary Judgment for Payment of Maintenance at p. 9 n.7, ECF No.
120. The Court thus reduces the amount to which Plaintiff
Barnes is currently entitled to reflect these previously
received payments. Accordingly, while the sum of Plaintiff
Barnes’s maintenance for the above-described period is
$74,086.00, any judgment would be entered in the amount of
$72,160.34.

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IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, June 20, 2018.

________________________________
Alan C. Kay
Sr. United States District Judge

Barnes v. Sea Hawaii Rafting, LLC, Kris Henry, M/V Tehani, et al., Civ. No.
13-00002 ACK-RLP, Order Granting Maintenance Amount Currently Due to
Plaintiff Barnes by Defendant Sea Hawaii Rafting, LLC.

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