Barnes v. Sea Hawaii Rafting, LLC et al
Filing
44
ORDER granting in part and denying in part 25 Plaintiff's Motion for Summary Judgment For Payment of Maintenance and Cure. Signed by JUDGE ALAN C KAY on 11/13/2013. (gab, )CERTIFICATE OF SERVICEParticipants re gistered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHAD BARRY BARNES,
Plaintiff,
v.
SEA HAWAII RAFTING, LLC, KRIS
HENRY, M/V TEHANI, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Civ. No. 13-00002 ACK-RLP
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT FOR PAYMENT OF MAINTENANCE AND CURE
For the following reasons, the Court GRANTS IN PART AND
DENIES IN PART Plaintiff Chad Barry Barnes’s Motion for Summary
Judgment for Payment of Maintenance and Cure. The Court GRANTS
the motion as to Barnes’s entitlement to maintenance and cure,
DENIES WITHOUT PREJUDICE the motion as to the amount of such
payments, and DENIES WITHOUT PREJUDICE the motion as to
Defendants’ liability for punitive damages and attorney’s fees.
PROCEDURAL BACKGROUND
On January 1, 2013, Plaintiff Chad Berry Barnes filed a
Verified Complaint against Sea Hawaii Rafting, LLC, Kris Henry,
and a number of Doe defendants, in personum, and M/V TEHANI, HA1629 CP, and her engines, equipment, tackle, stores, furnishings,
cargo and freight, in rem (together, “Defendants”). (Doc. No. 1
(“Compl.”).) On August 20, 2013, Barnes filed a Motion for
Summary Judgment for Payment of Maintenance and Cure, asking for
summary judgment as to Count III of his complaint. (Doc. No. 25
(“Mot.”).) In support of his motion, Barnes filed a concise
statement of facts, as well as a number of exhibits. (Doc. Nos.
27, 36.)1/ Defendants filed their memorandum in opposition to the
motion, as well as a concise statement of facts and a number of
exhibits, on October 22, 2013. (Doc. Nos. 34, 35.) Barnes did not
file a reply.
A hearing on the motion was held on November 12, 2013.
FACTUAL BACKGROUND2/
This matter arises under admiralty law. Barnes alleges
that he was employed by Defendant Kris Henry and/or Defendant Sea
Hawaii Rafting as a crew member on the vessel M/V TEHANI. (Compl.
¶¶ 14-15; Mot. at 2, Exs. A & C.) On July 3, 2012, Barnes was
injured when a small explosion occurred under the deck of the
boat as Barnes was starting its engine and helping to launch it
into the Honokohau Small Boat Harbor in Kailua Kona, Hawaii.
(Compl. ¶¶ 12-13; Opp’n at 3.) Barnes alleges that he suffered
severe physical and emotional injuries as a result of the
1/
Barnes originally filed his concise statement of facts on
August 21, 2013, (Doc. No. 27,) but filed an amended concise
statement of facts on October 24, 2013. (Doc. No. 36.) In
addition, Barnes introduced an additional exhibit during the
hearing on the instant motion. (See Ex. K.)
2/
The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
2
accident that require “ongoing medical treatment, loss of time
from work, and may have left him permanently disabled.” (Compl.
¶¶ 16-17.) He has been unable to work since the accident.
(Affidavit of Chad Barnes (“Barnes Aff.”) ¶ 26.)
In his complaint, Barnes brings the following claims:
(1) negligence under the Jones Act, 46 U.S.C. § 688, against the
in personam Defendants (Count I); (2) unseaworthiness as against
the M/V TEHANI (Count II); (3) maintenance, cure, and wages under
general maritime law (Count III); (4) compensation and recovery
for negligence pursuant to the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. § 905, against the in personam and in
rem Defendants (Counts IV-VII); (5) individual liability of
Defendant Kris Henry and the Doe Defendants for the negligence of
Sea Hawaii Rafting, pursuant to a theory of “piercing the veil of
limited liability” (Count VII); and (6) intentional and/or
negligent infliction of emotional distress as against all
Defendants (Count VIII). (Id. ¶¶ 23-71.) Barnes seeks
compensatory damages, punitive damages, and recovery of
attorney’s fees.
In the instant motion, Barnes asks the Court to grant
summary judgment as to Count III, his claim for recovery of
maintenance and cure pursuant to general maritime
law. Specifically, Barnes asks the Court for an order requiring
Defendants to pay him, retrospectively and prospectively,
3
maintenance payments fixed at an amount that meets his
reasonable, actual costs of food and lodging, and cure, or the
costs of his medical treatment until he reaches Maximum Medical
Improvement (“MMI”). (Mot. at 2.) Barnes also requests that the
Court award him attorney’s fees and costs involved in bringing
the instant motion, as well as punitive damages for Defendants’
“willful failure to pay Maintenance and Cure.” (Id. at 7-8.)
STANDARD
Summary judgment is appropriate when a “movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The central issue is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986).
The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that
burden has been met, the nonmoving party must then come forward
and establish specific material facts in dispute to survive
summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588 (1986). The Court must draw all
4
reasonable inferences in favor of the nonmoving party. Id. at
587.
In supporting a factual position, a party must “cit[e]
to particular parts of materials in the record . . . or show[]
that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 585. “[T]he requirement is that there be
no genuine issue of material fact . . . . Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 247–48 (emphasis in original).
Also, “[t]he mere existence of a scintilla of evidence in support
of the non-moving party’s position is not sufficient[]” to defeat
summary judgment. Triton Energy Corp. v. Square D Co., 68 F.3d
1216, 1221 (9th Cir. 1995). Likewise, the nonmoving party “cannot
defeat summary judgment with allegations in the complaint, or
with unsupported conjecture or conclusory statements.” Hernandez
v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
DISCUSSION
Barnes argues that there is no genuine issue of
material fact in dispute as to his entitlement to maintenance and
5
cure. Specifically, Barnes argues that Defendant Kris Henry, in a
signed statement to the U.S. Coast Guard dated July 6, 2012,
admitted all of the facts necessary to establish Barnes’s
entitlement: that Barnes was a crew member on the M/V TEHANI, and
that he was injured while acting in the service of the vessel.
(Mot. at 7, Ex. A.)
Defendants do not appear to dispute that Barnes was
injured while working on the M/V TEHANI, but argue that the Court
should nevertheless deny Barnes’s motion because they are
entitled to make an investigation and require documentation prior
to making any payments for maintenance and cure. (Opp’n at 7.)3/
I.
The Obligation to Pay Maintenance and Cure
When a seaman is injured in the service of his vessel,
the shipowner has an obligation to pay maintenance (room and
board), cure (medical expenses), and unearned wages. Vaughan v.
Atkinson, 369 U.S. 527, 531–33 (1962); Lipscomb v. Foss Maritime
Co., 83 F.3d 1106, 1109 (9th Cir. 1996). The entitlement to
maintenance and cure continues until the seaman reaches “maximum
cure” - a recovery as complete as the injury allows. Permanente
S.S. Corp. v. Martinez, 369 F.2d 297, 298–99 (9th Cir. 1966)
(stating that the obligation to furnish maintenance and cure
3/
Although the Court notes that Defendants failed (1) to
seek relief from the magistrate judge as to Barnes’s alleged
failure to properly respond to discovery requests, and (2) to
seek a Rule 56(d) continuance of the instant motion.
6
“continues until the seaman achieves maximum recovery; that is,
until the seaman is well or his condition is found to be
incurable.”); see also Berg v. Fourth Shipmor Assocs., 82 F.3d
307, 309 (9th Cir. 1996) (same). When a seaman is injured in the
service of a vessel, the employer must pay maintenance and cure
even where the employer is not at fault. Aguilar v. Standard Oil
Co. of N.J., 318 U.S. 724, 730 (1943); Crooks v. United States,
459 F.2d 631, 632 (9th Cir. 1972).4/
A plaintiff’s burden of proof on a maintenance and cure
claim is slight: he need only establish that he was injured or
became ill while “subject to the call of duty as a seaman.”
Aguilar, 318 U.S. at 732. Further, the Court resolves any
ambiguities or doubts as to the seaman’s right to receive
maintenance and cure in favor of the seaman. Vaughan, 369 U.S. at
4/
The Court notes that it is an open question in the Ninth
Circuit whether a pretrial motion for maintenance and cure should
be viewed under the summary judgment standard or through an
approach that takes into account the flexibility that admiralty
law affords to the Court and the deference afforded to seamen.
See, e.g., Best v. Pasha Haw. Transport Lines, LLC, 2008 WL
1968334, at *1 (D. Haw. May 6, 2008) (discussing the Ninth
Circuit’s inconsistent treatment of such motions); Buenbrazo v.
Ocean Alaska, LLC, 2007 WL 3165523, at *1 (W.D. Wash. Oct. 24,
2007) (noting the “obvious tension” between summary judgment and
resolving all doubts in favor of the seaman). The Court need not
resolve this issue, however, as even applying the summary
judgment standard, the Court finds that Barnes is entitled to
maintenance and cure. Further, as to the portions of Barnes’s
motion that the Court denies, even under a more flexible
approach, Barnes has not provided the Court sufficient
information to determine the appropriate amount of maintenance
and cure, or to support an award of attorney’s fees or punitive
damages.
7
532. As the Supreme Court has noted, a “shipowner’s liability for
maintenance and cure [is] . . . not to be defeated by restrictive
distinctions nor ‘narrowly confined.’” Id. at 532 (quoting
Aguilar, 318 U.S. at 730).
In the instant case, while Defendants argue that Barnes
has failed to adequately respond to their requests for
information or document his claims for maintenance and cure, it
does not appear that Defendants dispute Barnes’s entitlement to
maintenance and cure. Indeed, during the hearing on the instant
motion, defense counsel stated that Defendants do not contest
that Barnes is entitled to maintenance, and, in their opposition,
Defendants do not dispute Barnes’s contention that he was injured
while in the service of the M/V TEHANI.
Further, Barnes has introduced evidence that Defendant
Kris Henry admitted in a written statement that Barnes was
injured while working on the M/V TEHANI. Specifically, Barnes has
introduced a Report of Marine Accident, Injury or Death form that
Defendant Kris Henry signed on July 6, 2012 detailing the July 3,
2012 accident and stating that Barnes was working as a
“captain/crew” on the M/V TEHANI at the time of the accident,
that he had been working in his present position for four months
and on the vessel for one month, and that he was injured when an
explosion occurred as he was starting the vessel’s engine. (Mot.
Ex. A.)
8
The Court therefore finds that there is no factual
dispute that Barnes is entitled to maintenance and cure from July
3, 2012 (the date of the accident) until the time he reaches
maximum cure.5/ The Court thus GRANTS Barnes’s motion as to
Barnes’s eligibility for maintenance and cure.
II.
Amount of Maintenance and Cure
A.
Maintenance
In determining maintenance, the Court must look at both
reasonable expenses and Barnes’s actual expenses. Specifically,
“[a] seaman is entitled the reasonable cost of food and lodging,
5/
As to the duration of Barnes’s eligibility for
maintenance and cure, Barnes states that he has not yet reached
maximum cure. (Mot. at 4; Barnes Aff. ¶ 15.) Defendants do not
appear to dispute Barnes’s claim. “A shipowner is liable to pay
maintenance and cure until the point of maximum medical cure,
where it is probable that further treatment will result in no
betterment of claimant’s condition. Whether a seaman has reached
maximum medical cure is a medical question.” Rashidi v. Am.
President Lines, 96 F.3d 124, 128 (5th Cir. 1996) (internal
citation omitted). Based on the exhibits submitted by Barnes, it
appears that he is still undergoing treatment for medical
conditions associated with his injury on the M/V TEHANI. (See
Mot. Ex. H (notes from Dr. Marko Reumann dated October 10, 2013
indicating that Barnes suffers from prolonged postconcussion
syndrom, memory problems, headaches, double vision, dizziness,
ringing of the ears, hearing difficulty, and muscle problems);
Ex. G (letter from Dr. Victoria Reed indicating that Barnes
suffers from Major Depressive Disorder and other medical problems
as a result of the boating accident, and that his prognosis is
moderate so long as he continues treatment).) Defendants have
introduced no evidence calling into question the statements of
Drs. Reumann and Reed and, as such, have failed to raise a
genuine issue of material fact that Barnes has not yet reached
maximum medical cure. Barnes is thus is entitled to maintenance
and cure from the date of his accident (July 3, 2012) until he
reaches maximum cure. See Keliihananui v. KBOS, Inc., 2010 WL
2176105, at *9 (D. Haw. 2010).
9
provided he has incurred the expense.” Hall v. Noble Drilling,
Inc., 242 F.3d 582, 587 (5th Cir. 2001). Determining the
maintenance award involves three steps:
First, the court must estimate two amounts: the
plaintiff seaman’s actual costs of food and lodging;
and the reasonable cost of food and lodging for a
single seaman in the locality of the plaintiff. In
determining the reasonable costs of food and lodging,
the court may consider evidence in the form of the
seaman’s actual costs, evidence of reasonable costs in
the locality or region, union contracts stipulating a
rate of maintenance or per diem payments for shoreside
food or lodging while in the service of a vessel, and
maintenance rates awarded in other cases for seamen in
the same region.
...
Second, the court must compare the seaman’s actual
expenses to reasonable expenses. If actual expenses
exceed reasonable expenses, the court should award
reasonable expenses. Otherwise, the court should award
actual expenses. Thus, the general rule is that seamen
are entitled to maintenance in the amount of their
actual expenses on food and lodging up to the
reasonable amount for their locality.
Third, there is one exception to this rule that the
court must consider. If the court concludes that the
plaintiff’s actual expenses were inadequate to provide
him with reasonable food and lodging, the plaintiff is
entitled to the amount that the court has determined is
the reasonable cost of food and lodging. This insures
that the plaintiff’s inability to pay for food and
lodging in the absence of maintenance payments does not
prevent him from recovering enough to afford himself
reasonable sustenance and shelter.
Id. at 590.
Applying this framework to the instant case, the Court
concludes that the evidence Barnes has presented is insufficient
for the Court to determine the proper amount of maintenance.
10
Barnes argues in his motion that the maintenance rate should be
set “at a minimum of $50 per day.” (Mot. at 6.) Defendants argue
that Barnes has failed to establish either his actual expenses,
or the reasonable expenses in his locality. (Opp’n at 10.)
First, as to Barnes’s evidence of actual expenses, he
provides a letter detailing his actual living expenses since July
3, 2012, including $500 per month for rent, $200 per month for
utilities, $45 per day for food, and $400 per month for
groceries.6/ (Mot. Ex. D.) Barnes states that, because his
apartment has no kitchen, he eats most of his meals out. (Mot.
Ex. 2 (Affidavit of Chad Barnes) at ¶ 5.) As such, it appears
that his actual expenses for food include his claimed $45 per day
for meals eaten out, but should not include his claimed $400 per
month in grocery costs. Thus, Barnes appears to claim that his
actual expenses are $2,050 per month, or approximately $68 a
day.7/
6/
Barnes also claims that he has significant transportation
costs, in light of the fact that he can no longer drive.
Specifically, Barnes claims he spends approximately $12 each way
on taxi fare to and from three different weekly medical
appointments, as well as $120 each way once a month for a
separate medical appointment. Transportation costs are not,
however, an allowable maintenance expense. See, e.g., Hall, 242
F.3d at 587 n.17; Smith v. Delaware Bay Launch Service, Inc., 972
F. Supp. 836, 849 (D. Del 1997) (“Automobile expenses . . .
incurred for the sole purpose of obtaining medical care fall into
the category of cure. All other automobile expenses are excluded
from maintenance and cure.”).
7/
Barnes’s total claimed eligible monthly expenses are $500
(rent), plus $200 (utilities), plus $1,350 ($45/day for food x 30
11
Defendants argue that Barnes’s letter itemizing his
expenses, absent substantiation with receipts, is insufficient to
establish his actual expenses. (Opp’n at 10.) Generally, however,
a seaman’s burden in producing evidence establishing his actual
expenses is “feather light.” Yelverton v. Mobile Laboratories,
Inc., 782 F.2d 555, 558 (5th Cir. 1986); see also Hall, 242 F.3d
at 590. Indeed, a plaintiff’s own testimony as to the cost of
room and board in the community where he is living is sufficient
to support an award. Yelverton, 782 F.2d at 558; see also Morel
v. Sabine Towing & Transp. Co., Inc., 669 F.2d 345, 347-48 (5th
Cir. 1982) (noting that, while a plaintiff’s own testimony is not
“the most probative evidence one might conceive,” the district
court nevertheless did not err in admitting and considering it,
given the Supreme Court’s emphasis that doctrines of maintenance
and cure are to be construed liberally and in favor of the
seaman). Barnes has submitted as an exhibit a letter itemizing
his monthly expenses. (Mot. Ex. D.) Barnes has thus sufficiently
proffered evidence that his actual monthly expenses are $2,050
per month, or approximately $68 a day. The Court therefore turns
next to an assessment of Barnes’s claimed actual expenses in
light of reasonable expenses for a seaman in his locality. See
Hall, 242 F.3d at 590.
days), for a total of $2,050. His daily expenses are therefore
approximately $68 per day ($2,050 divided by 30 days).
12
With respect to reasonable expenses, Barnes proffers a
2006 report of economist Jack P. Suyderhoud (the “Suyderhoud
Report”). (Mot. Ex. I.) Importantly, however, this district court
has previously rejected the Suyderhoud Report as insufficient,
absent more explanation, to establish the reasonable cost of food
and lodging in Honolulu. See Keliihananui, 2010 WL 2176105, at
*9. The Suyderhoud Report calculated the cost of living in Hawaii
as $57 per day for a seaman-plaintiff in Miller v. Smith
Maritime, Ltd., Civ. No. 05–00490 HG–BMK. The report calculates
this amount based on two sets of data: one set from the Economic
Research Institute providing information for a single minimum
wage earner living with friends or parents contributing partial
rent, and the second from the U.S. Bureau of Labor Statistics
providing data on single-person households with annual income in
the $50,000 to $70,000 range.
As this district court noted in Keliihananui, however,
the Suyderhoud Report does not explain why the data it uses are
the appropriate measures for maintenance for seamen, or how the
data were used to calculate the average daily cost of living.
Further, some of the data used in the Suyderhoud Report’s
calculations clearly should not be included in the maintenance
calculation (e.g., “consumables,” “entertainment,” and
“miscellaneous”). See Keliihananui, 2010 WL 2176105, at *9. As
the court in Keliihananui stated, without more precise
13
information, the Court cannot determine whether $57 per day is a
reasonable amount to cover food and lodging in the Honolulu area.
Further, Barnes himself states that the estimated costs in the
Suyderhoud Report “have undoubtedly increased significantly in
the time since the report was prepared.” (Mot. at 6.) Barnes has
nevertheless failed to proffer any additional evidence as to
reasonable costs in the Honolulu area.
Barnes is entitled to maintenance in the amount of the
actual cost of his food and lodging, “up to the reasonable amount
for [his] locality.” See Hall, 585 F.2d at 590. Barnes has
failed, however, to provide the Court with evidence regarding the
current costs of food and lodging in Honolulu such that the Court
can make a determination as to the reasonable costs in the area.
Because Barnes has failed to provide the Court with sufficient
information to determine the reasonable amount of maintenance for
a seaman in his locality (Honolulu), the Court cannot make a
determination as to the proper amount of maintenance at this
time. Thus, while the Court concludes that Barnes is entitled to
maintenance from the date of the accident, July 3, 2012,8/ until
8/
The Court notes that, in a letter to the Court dated
November 12, 2013, Defendants conclusorily state that Barnes’s
maintenance award should be adjusted to account for the 114 days
during which Barnes allegedly lived with his brother. Defendants
do not cite any authority to support this argument, or provide
any evidence to support their factual allegation. Because
maintenance is intended to substitute for the food and lodging
that a seaman enjoyed at sea, a seaman is generally entitled only
to expenses actually incurred. Johnson v. United States, 333 U.S.
14
the time he reaches maximum cure, the Court nevertheless
concludes that Barnes has failed to prove the proper amount of
maintenance.9/
B.
Cure
As discussed above, an injured seaman is also entitled
to “cure,” or reimbursement for medical expenses. See, e.g.,
Lipscomb, 83 F.3d at 1109. The entitlement to maintenance and
cure continues until the seaman reaches “maximum cure” - a
recovery as complete as the injury allows. Permanente, 369 F.2d
at 298–99 (stating that the obligation to furnish maintenance and
cure “continues until the seaman achieves maximum recovery; that
46, 50 (1948); Barnes v. Andover Co., L.P., 900 F.3d 630, 641
(3rd Cir. 1990); Stankiewicz v. United Fruit S.S. Corp., 229 F.2d
580, 581 (2d Cir. 1956). Thus, if a seaman lives with his family
without incurring any expense or liability for his care, no
maintenance is due. See Johnson, 333 U.S. at 50; Nichols v.
Barwick, 792 F.2d 1520, 1523–24 (11th Cir. 1986); Curry v. Fluor
Drilling Services Inc., 715 F.2d 893, 896 (5th Cir. 1983). On the
other hand, a seaman living with his family is entitled to
maintenance if he shows that he paid his family for his room and
board or that he had promised that he would and was obliged to do
so. See, e.g., McCormick Shipping Corp. v. Duvalier, 311 F.2d
933, 934 (5th Cir. 1963) (per curiam); Flower v. Nordsee, Inc.,
657 F. Supp. 235, 236 (D. Me. 1987). Here, neither party has
submitted evidence establishing the timing of Barnes’s stay with
his brother, or the financial arrangement Barnes made during that
stay. As such, the Court cannot make a determination at this time
as to whether Barnes is entitled to payment for the period during
which he allegedly lived with his brother.
9/
The Court notes that Defendants submitted a letter to the
Court on November 12, 2013 suggesting that they have offered to
enter into a stipulation with Barnes as to the amount of the
maintenance payments, and have suggested that the parties engage
in a further settlement conference before Magistrate Judge
Puglisi. The Court strongly encourages the parties to do so.
15
is, until the seaman is well or his condition is found to be
incurable.”); see also Berg, 82 F.3d at 309 (same).
In his motion, Barnes does not specify the amount of
medical expenses he seeks to recover from Defendants. Barnes
states that he received emergency treatment after the accident on
July 3, 2012, and that he is still being treated for his injuries
and has not yet reached maximum cure or MMI. (Mot. at 4.) To
substantiate his claim, Barnes submits (1) July 10, 2012 patient
notes from Dr. Lambert Lee Loy of Keauhou-Kona Medical Clinic,
(Ex. F); (2) a October 18, 2013 letter from Dr. Victoria K. Reed,
Psy.D, a Licensed Clinical Psychologist at West Hawaii Community
Health Center, (Ex. G); and (3) patient notes prepared by Dr.
Marko Reumann of Big Island Comprehensive Neurological Services
dating from August 17, 2012 to October 10, 2013. (Ex. H.) In July
of 2012, Dr. Loy noted that Barnes suffered from postconcussion
syndrome, acute pain due to trauma in his shoulder, spine, chest,
and limb, and “late effect of burn of other extremities.” (Ex.
F.) Dr. Reed’s letter diagnoses Barnes with Major Depressive
Disorder and Cognitive Disorder Not Otherwise Specified, as well
as “Psychological Factors Affecting Hypothyroidism, Diabetes
Mellitus Type II, High Cholesterol and Tinnitus,” and states that
his prognosis is moderate so long as he continues with cognitive
behavioral therapy. (Ex. G.) Dr. Reumann’s patient notes state
that Barnes suffers from prolonged postconcussion syndrom,
16
headaches, tinnitus, and memory problems as a result of the July
3, 2012 accident. (Ex. H.)
Defendants argue that they have a right to conduct a
reasonable investigation into Barnes’s claims for cure, but have
been thwarted by Barnes when they have tried to do so.
Specifically, Defendants argue that Barnes has provided very few
medical records in response to their discovery requests, and that
those records he did provide were insufficient for Defendants to
determine the origin, nature, and scope of Barnes’s injuries.
(Opp’n at 12.) Defendants emphasize that Barnes has provided no
receipts or invoices to substantiate his claims, and that the
providers listed on the HMSA explanation of benefits, (see Mot.
Ex. J,) differ from those listed in Plaintiff’s response to
Interrogatory No. 6, and from the providers whose patient notes
Barnes attaches as exhibits to his motion. (Opp’n at 12-13, Ex. D
(Answer to Interrogatory #6.)) As such, Defendants argue that
there are issues of fact as to the nature, cause, and extent of
Barnes’s injuries and medical costs.
In his motion, Barnes asks for an order finding that
Defendants are liable for payment of his “outstanding medical
bills caused by this injury,” as well as for his “future medical
care” and for reimbursement of HMSA payments made for treatment
of his injury. (Mot. at 7.) Barnes fails to identify, however,
exactly what his “outstanding medical bills” are, how much he
17
seeks for future medical care and for what duration of time, and
how much money he seeks in reimbursement for HMSA payments made
on his behalf. The HMSA statement of benefits Barnes provides as
Exhibit J lists a number of claims for which HMSA has apparently
paid various providers on Barnes’s behalf; however, it is unclear
whether this list of payments is exhaustive of Barnes’s medical
expenses, or whether all of the charges relate to the injuries
attributable to the accident on the M/V TEHANI. (See Mot. Ex. J.)
The Court is therefore unable to make a determination at this
time as to the proper amount of cure.
In sum, the Court GRANTS Barnes’s motion insofar as it
finds that Barnes is entitled to maintenance and cure from July
3, 2012 until the time he reaches maximum cure. The Court DENIES
Barnes’s motion insofar as Barnes has failed to prove the proper
amount of maintenance or cure.
III. Attorney’s Fees and Costs and Punitive Damages
Barnes also requests that this Court award him the
attorney’s fees and costs involved in bringing the instant
motion, as well as punitive damages “for the willful failure to
pay Maintenance and Cure.” (Mot. at 7-8.) Outside of Barnes’s
request, neither party addresses this issue in its briefing.
A.
Attorney’s Fees
Attorney’s fees incurred in order to secure a
maintenance and cure award may be recovered only when the failure
18
to provide maintenance and cure is “arbitrary, recalcitrant or
unreasonable.” Kopczynski v. The Jacqueline, 742 F.2d 555, 559
(9th Cir. 1984); see also Vaughan, 369 U.S. at 530-31 (allowing
attorneys fees against shipowner who willfully and persistently
failed to investigate a claim for maintenance and cure).
Here, Barnes makes no legal arguments or factual
assertions in his motion to support his request for an award of
attorney’s fees. His complaint contains the allegation that the
Defendants “knew of the injuries which [Barnes] received, and the
medical care which [Barnes] needed and received, and knowingly,
willfully and callously denied [Barnes] his medical and
compensation benefits . . . .” (Compl. ¶ 73.) Barnes has not,
however, supported this conclusory statement with specific
factual allegations, either in his complaint or in the instant
motion. Specifically, Barnes has made no allegations regarding
when he first requested maintenance and cure from Defendants,
what documentation he provided to support his claim, and whether
and how Defendants responded. Indeed, it is not clear to the
Court whether Barnes made any demand for maintenance and cure
prior to filing the instant suit. The Court is therefore unable
to make a finding as a matter of law that Defendants’ failure to
provide maintenance and cure thus far is “arbitrary, recalcitrant
or unreasonable.” See Kopczynski, 742 F.2d at 559. The Court
19
DENIES Barnes’s motion to the extent he seeks an award of
attorney’s fees.
B.
Punitive Damages
In addition to attorney’s fees, Barnes seeks punitive
damages “for the willful failure to pay Maintenance and Cure.”
(Mot. at 8.) Generally, shipowners are entitled to investigate
and require corroboration of a claim for maintenance and cure
prior to making any payments. See MNM Boats, Inc., v. Johnson,
248 F.3d 1139 (5th Cir. 2001); McWilliams v. Texaco, Inc., 781
F.2d 514, 519-20 (5th Cir. 1986); Snyder v. L & M Botruc Rental,
Inc., 924 F. Supp. 2d 728, 734 (E.D. La 2013); Bickford v.
Marriner, 2012 WL 3260323, at *4 (D. Me. Aug. 8, 2012); Sullivan
v. Tropical Tuna, Inc., 93 F. Supp. 42, 45 (D. Mass 1997). This
entitlement to investigate is tempered, however, by a seaman’s
ability to seek punitive damages for “the willful and wanton
disregard of the maintenance and cure obligation.” Atlantic
Sounding Co., Inc. v. Townsend, 557 U.S. 404, 424 (2009).
As was true of his request for attorney’s fees, Barnes
makes no legal arguments or factual allegations in his motion to
support his request for punitive damages. Barnes’s complaint
alleges that Defendants “have acted with malice, in a gross,
willful and wonton manner regarding the denial of the medical and
compensation benefits and other matters outlined in this pleading
. . . .” (Compl. ¶ 76.) The complaint does not, however, set
20
forth any specific factual allegations supporting this conclusory
statement. Defendants, on the other hand, state that they have
attempted to investigate Barnes’s maintenance and care claims,
but have been thwarted by Barnes’s failure to cooperate fully
with their discovery requests. (Opp’n at 11-12.) In light of the
dearth of facts surrounding Barnes’s request for maintenance and
cure and Defendants’ response, the Court cannot make a
determination at this time that Defendants have acted so
willfully and wantonly in failing to pay him maintenance and cure
that an award of punitive damages is appropriate. The Court
therefore DENIES Barnes’s motion to the extent he seeks punitive
damages.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND
DENIES IN PART Barnes’s Motion for Summary Judgment for Payment
of Maintenance and Cure. The Court GRANTS the motion as to
Barnes’s entitlement to maintenance and cure, and finds that
Barnes is entitled to maintenance and cure from July 3, 2012, the
date of his injury, until he reaches maximum cure. The Court
DENIES WITHOUT PREJUDICE Barnes’s motion as to the amount of such
payments, and DENIES WITHOUT PREJUDICE the motion as to
Defendants’ liability for punitive damages and attorney’s fees.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, November 13, 2013.
21
________________________________
Alan C. Kay
Sr. United States District Judge
Barnes v. Sea Hawaii Rafting, et al., Civ. No. 13-00002 ACK-RLP:
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT FOR MAINTENANCE AND CURE.
22
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?