In the Matter Of: The Complaint of Healy Tibbitts Builders, Inc.

Filing 570

ORDER DENYING CLAIMANTS' MOTION TO COMPEL PAYMENT OF CURE, ECF NO. 493. Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 2/20/2018. (afc) Motion: ECF no. 493 in 1:15-cv-00520-JMS-KJM, ECF No. 440 in 1:16-cv-00156-JMS-KJM . WRITTEN ORDER follows hearing held 2/20/2018. CERTIFICATE OF SERVICEParticipants registered 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
In the Matter of
The Complaint of HEALY TIBBITTS
BUILDERS, INC., as owner pro hac vice
of WEEKS 544, O.N. 520935, for
Exoneration from or Limitation of
Liability,
_________________________________

Civ. No. 15-00520 JMS-KJM
Civ. No. 16-00156 JMS-KJM
(Consolidated Cases)

ORDER DENYING CLAIMANTS’
MOTION TO COMPEL PAYMENT
OF CURE, ECF NO. 493

In the Matter of
The Complaint and Petition of the United
States of America in a Cause for
Exoneration from or Limitation of
Liability with Respect to Navy Barge
YCV-23 Re the Incident Involving
Mooring Buoy in Pearl Harbor on
December 10, 2014,
_________________________________
AND RELATED CROSSCLAIMS,
COUNTERCLAIMS, AND THIRDPARTY CLAIMS.

ORDER DENYING CLAIMANTS’ MOTION TO COMPEL PAYMENT OF
CURE, ECF NO. 493
I. INTRODUCTION
Claimants David B. Makua, III, and Cesario T. Gaspar (collectively,
“Claimants”) seek an order compelling their employer, Limitation Plaintiff Healy
Tibbitts Builders, Inc. (“HTBI”), to pay for magnetic resonance imaging scans

(“MRIs”) that Claimants’ treating physicians have recommended. Mot. at 2 and
Exs. A, I, ECF Nos. 493, 493-3,493-11. Claimants contend that they are entitled to
this treatment, as well as “attorney fees for work done to obtain the care,” under
the Jones Act, 46 U.S.C. § 30101, et seq., or under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901, et seq. Mot. at 2;
Claimants’ Mem. at 2-3, ECF No. 493-1. “Either way,” Claimants contend HTBI
is responsible to pay for this treatment as HTBI is “both the Longshore insurance
carrier and the putative Jones Act Seaman insurance [c]arrier.” Mem. at 2, 4.
HTBI contends that an order compelling “cure”1 is premature because
Claimants’ status as seamen is, as yet, unsettled. Opp’n at 4, 12, ECF No. 547.
Reluctantly, this court agrees, and DENIES Claimants’ Motion at this time.
II. BACKGROUND
Claimants are HTBI employees who were injured in a December 10,
2014 accident while working on a project to upgrade moorings in Pearl Harbor.
They have filed claims in these consolidated Limitation Actions as a result of that
accident. ECF Nos. 13, 14. There is no question that Claimants’ injuries happened
while they were on the job for HTBI. But the court has already determined that
1

“A claim for maintenance and cure concerns the vessel owner’s obligation to provide
food, lodging, and medical services to a seaman injured while serving the ship,” Lewis v. Lewis
& Clark Marine, Inc., 531 U.S. 438, 441 (2001), where “maintenance” refers to food and
lodging, and “cure” refers to medical treatment, Atl. Sounding Co. v. Townsend, 557 U.S. 404,
413 (2009).

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there is a question of fact as to whether, at the time of their injuries, Claimants’ job
duties were primarily land-based, making them eligible for medical care under the
LHWCA, or primarily sea-based (i.e. regularly exposing them to the perils of the
sea ), making them seamen entitled to cure under the Jones Act. See Order
Denying Claimant’s Mot. Partial Summ. J., ECF No. 489 at 14-18. Under either
system, HTBI is responsible for providing reasonable and necessary medical
treatment for Claimants’ injuries; the threshold question presented by this Motion
is under which system Claimants may proceed.
Claimants’ Counsel states that it is his “policy . . . where there is a
question of whether or not [injured workers] are covered under the Jones [A]ct to
file Longshore claims because it’s usually easier to get them the medical care that
they need and there’s a quick process called an Informal Conference which
facilitates the obtaining of medical care.” Mem. at 4. He did so for these
Claimants, and he attaches memoranda from such informal conferences
recommending authorization and payment for the MRIs. See U.S. Dep’t of Labor
Mems. at 3, ECF Nos. 493-9, 493-16. Apparently, HTBI or its carrier declined to
accept these recommendations and sent letters denying coverage for the MRIs on
November 7, 2017. ECF Nos. 493-10, 493-17.2

2

HTBI denied the MRI for Mr. Makua because he had had an MRI “seven months postaccident” and “[t]here has been no interim injury nor a documented change in Claimant’s
(Continued . . .)

3

According to HTBI, Claimants’ counsel has not pursued formal
proceedings under the LHWCA through the Office of Workers’ Compensation
Programs. Opp’n at 12. Claimants filed this Motion on December 11, 2017. ECF
No. 493. HTBI filed its Opposition on January 30, 2018, ECF No. 547, and
Claimants replied on February 6, 2018, ECF No. 562. No other party has taken a
position on these issues. See Statements of No Position, ECF Nos. 543, 545, 546.
A hearing was held on February 20, 2018.
III. DISCUSSION
The parties disagree about the appropriate legal standard for this
Motion. HTBI contends that the court should apply a summary judgment standard,
Opp’n. at 5, and characterizes Claimants’ Motion as a “thinly veiled motion for
reconsideration on the issue of seaman status,” id. at 11. Claimants contend that a
more lenient standard applies, Claimants’ Mem. at 7, based on the Supreme
Court’s recognition of “the breadth and inclusiveness of the shipowner’s duty” to
provide maintenance and cure to injured seamen. Vella v. Ford Motor Co., 421
U.S. 1, 4 (1975).

(. . . continued)
condition” or “explanation for why a repeat MRI is warranted, reasonable, or necessary.” ECF
No. 493-8. Regarding Mr. Gaspar’s requested MRI, HTBI’s independent medical examiner
opined that “no further or additional . . . treatment or testing is needed at this time.” ECF Nos.
493-14, 493-16.

4

“Admiralty courts have been liberal in interpreting this duty ‘for the
benefit and protection of seamen who are its wards.’” Vaughan v. Atkinson, 369
U.S. 527, 531-32 (1962) (quoting Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 529
(1938)). “[T]he shipowner’s liability for maintenance and cure [is] among ‘the
most pervasive’ of all” duties and is “not to be defeated by restrictive distinctions
nor ‘narrowly confined.’ When there are ambiguities or doubts, they are [to be]
resolved in favor of the seaman.” Id. at 532 (quoting Aguilar v. Standard Oil Co.,
318 U.S. 724, 730, 735 (1943)). “It has been the merit of the seaman’s right to
maintenance and cure that it is so inclusive as to be relatively simple, and can be
understood and administered without technical considerations. It has few
exceptions or conditions to stir contentions, cause delays, and invite litigations.”
Farrell v. United States, 336 U.S. 511, 516 (1949).
District courts have recognized that application of the summary
judgment standard, which requires the court to draw all inferences in the light most
favorable to the nonmoving party, “squares awkwardly with the Supreme Court’s
instructions to defer to seamen in determining maintenance and cure questions.”
Connors v. Iqueque U.S.L.L.C., 2005 WL 2206922, at *1 (W.D. Wash. Aug. 25,
2005); see Buenbrazo v. Ocean Alaska, LLC, 2007 WL 7724765, at *3 (W.D.
Wash. Feb. 28, 2007 (“An obvious tension exists between the summary judgment
standard, which requires that all doubts be resolved in favor of the non-moving
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party, and the canon of admiralty law, which provides that all doubts be resolved in
favor of the seaman.”); Robb v. Jantran, Inc., 2016 WL 2986233, at *2 (N.D. Miss.
May 6, 2016) (observing that “courts throughout the country have struggled to
reconcile Vaughan’s dictate” to resolve ambiguities in favor of seamen with the
summary judgment procedure); Best v. Pasha Haw. Transp. Lines, L.L.C., 2008
WL 1968334, at *1 (D. Haw. May 6, 2008) (collecting cases). Appellate courts
have not yet addressed this issue, although the Ninth Circuit has upheld a denial of
maintenance as “premature” when questions of fact existed as to a seaman’s
entitlement thereto. Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1505-06
(9th Cir. 1995), abrogated on other grounds by Atl. Sounding Co. v. Townsend,
557 U.S. 404 (2009).
This has led some courts to “take a ‘flexible’ approach” in dealing
with a seaman’s motion to compel maintenance and cure. Connors, 2005 WL
2206922, at *2 (quoting Putnam v. Lower, 236 F.2d 561, 568 (9th Cir. 1956)
(noting that “admiralty courts are flexible in operation,” and may exercise limited
equitable powers)); see also Boyden v. Am. Seafoods Co., 2000 WL 33179294, at
*2 (W.D. Wash. Mar. 21, 2000) (finding that “[a]pplying a summary judgment
standard to the payment of maintenance and cure would invite litigation and cause
delays by involving the court in the medical determinations” and “thus
undermining the policy of simplicity in these matters”).
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For example, in Connors, the plaintiff, an injured maritime engineer,
moved to compel payments for maintenance and cure when the ship’s owner
terminated such payments approximately eight months after the plaintiff’s injury.
2005 WL 2206922, at *1. The parties disputed whether the plaintiff had been
injured in the service of the ship, whether he had reached “maximum cure,” and
whether, at the time he was hired, he had intentionally concealed his susceptibility
to the particular injury. 3 Id. at *2. Persuaded by the Supreme Court’s “instructions
to construe claims for maintenance and cure liberally in favor of seamen,” the
court ordered the defendant to continue maintenance payments for another
approximately nine months, during which time it was permitted to conduct
discovery to bolster its defense. Id. at *2, 3. The court denied additional cure
payments for lack of evidence linking medical bills to treatment designed to help
achieve maximum cure, but it allowed plaintiff to file a second motion, and a later
motion to extend payments beyond the initially ordered period, if necessary. Id. at
*3.
But before a court considers this flexible approach, a foundational
question must be addressed — is the plaintiff a seaman? That is, a claim for
3

“[I]njury incurred otherwise than in the service of the ship” and “sickness or infirmity
intentionally concealed when the engagement is entered into” are exceptions to injuries for
which seaman are entitled to payment of maintenance and cure. Warren v. United States, 340
U.S. 523, 525 (1951).

7

maintenance and cure requires that the individual qualify as a “seaman” under the
Jones Act. See Scheuring v. Traylor Bros. Inc., 476 F.3d 781, 784 n.3 (9th Cir.
2007); see also Figueroa v. Campbell Indus., 45 F.3d 311, 313 (9th Cir. 1995)
(“The Jones Act and the LHWCA both provide a remedy to injured maritime
workers. However, each statute specifies different maritime workers to be within
its reach.”). “In other words, if the Jones Act claim fails, so too do the . . .
maintenance, cure and related payments claims.” Scheuring, 476 F.3d at 784 n.3.
Claimants have not cited, nor has this court found, any case in which maintenance
or cure was compelled before a claimant’s seaman status was established. Indeed,
the Fifth Circuit has found that uncertainty as to a claimant’s status is a reasonable
defense to failure to pay maintenance and cure, such that denial of an award of
penalties and attorney’s fees for failure to pay is warranted. Legros v. Panther
Servs. Group, Inc., 863 F.2d 345, 352 (5th Cir. 1988); see also Verdin v. Plaisance
Dragline & Dredging Co., 1995 WL 377077, at *4 (E.D. La. June 22, 1995)
(dismissing claims for compensatory and punitive damages for failure to pay
maintenance and cure, finding “defendant’s denial of maintenance and cure
benefits pending a determination of whether plaintiff is a seaman is reasonable as a
matter of law.”)
And numerous courts have applied a summary judgment standard to
determine seaman status before considering maintenance and cure. See, e.g.
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Buenbrazo, 2007 WL 7724765, at *4 (applying summary judgment standard and
denying motion to compel maintenance and cure when factual questions existed as
to whether injury happened while Claimant was a seaman or a land-based
employee). The court in Buenbrazo was “cognizant of the weighty policies in
favor of a seaman’s right to maintenance and cure,” but was “skeptical that the
Supreme Court’s admonition [in Vaughan] was designed to torpedo the wellestablished summary judgment procedure.” Id.; see also Mabry v. Wizard
Fisheries, Inc., 2007 WL 1556529, at *3 (W.D. Wash. May 24, 2007) (denying
motion to compel cure where threshold factual issues existed, including whether
claimant’s injury was caused while he was in service of a vessel); Davis v. Icicle
Seafoods, Inc., 2008 WL 4189378, at *3 (W.D. Wash. Sept. 5, 2008) (same); Ward
v. EHW Constructors, 2016 WL 7407226, at *4 (W.D. Wash. Dec. 22, 2016
(same). This court agrees. Unless and until Claimants are found to be seamen,
they are simply not entitled to the remedy of maintenance and cure. 4
///
///
///
4

To the extend Claimants ask this court to order payment for the MRIs under the
LHWCA, this court has no jurisdiction to do so. As HTBI has argued, and Claimants’ do not
deny, a worker seeking compensation under the LHWCA must proceed through the
administrative procedure outlined in 33 U.S.C. § 919.

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IV. CONCLUSION
Because the court has previously determined that a question of fact
exists as to Claimants’ status as seaman (and no new evidence has been presented
on that question), Claimants’ Motion to Compel Payment of Cure is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 20, 2018.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

In the Matters of: The Complaint of HEALY TIBBITS BUILDERS, INC., as owner pro hac vice of WEEKS
544, O.N. 520935, for Exoneration from or Limitation of Liability; and The Complaint and Petition of the
United States of America in a Cause for Exoneration from or Limitation of Liability with Respect to Navy
Barge YCV-23 Re the Incident Involving Mooring Buoy in Pearl Harbor on December 10, 2014; and
Related Crossclaims, Counterclaims and Third-Party claims; Civ. Nos. 15-00520 JMS-KJM and 1600156 JMS-KJM (consolidated), Order Denying Claimants’ Motion to Compel Payment of Cure, ECF
No. 493.

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