Lopez v. Calumet River Fleeting, Inc.
Filing
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MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 5/11/12. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAUL LOPEZ,
Plaintiff,
vs.
CALUMET RIVER FLEETING, INC.,
Defendant.
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Case No. 11 C 6657
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Paul Lopez has sued Calumet River Fleeting, Inc. (Calumet). He asserts a claim
under the Jones Act and common law claims for Calumet’s failure to provide a
seaworthy ship and to enforce his right to receive maintenance and cure from Calumet.
Lopez has moved for a preliminary injunction reinstating maintenance and cure and
increasing the amount of maintenance. For the reasons stated below, the Court grants
Lopez’s motion in part and denies it in part.
Background
Lopez alleges that he worked for Calumet as a deck hand on the tugboat
“Krista.” On June 10, 2009, while Lopez was working on the boat, he injured his left
leg. The injury left him unable to work as a deck hand.
After the accident, Calumet paid Lopez maintenance and cure. Under maritime
law, “maintenance” refers to food and lodging, and “cure” involves medical care. See
Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S. Ct. 2561, 2569 (2009).
Calumet provided regular payment of fifteen dollars per day for Lopez’s housing and
food and paid for all of his medical bills. Calumet also voluntarily paid Lopez advance
wages, intending to deduct the wages from whatever recovery Lopez earned for his
injuries. The advance wages were approximately $696 every two weeks.
Lopez filed this suit in September 2011 to recover damages for his leg injury. On
February 16, 2012, Calumet informed Lopez that it had concluded it no longer had to
pay maintenance and cure and that it would be ending those payments as well as the
advance wage payments. Calumet says that it was entitled to terminate the
maintenance and cure payments because it learned from Lopez’s medical providers
that he had reached maximum medical improvement and was no longer entitled to
maintenance and cure by law.
Lopez filed a motion requesting that the Court order Calumet to resume paying
maintenance and cure. As the parties were briefing the motion, they also discussed
Lopez’s treatment and the opinions of his doctors. Calumet came to the conclusion that
it should reinstate maintenance and cure, and it did so. It did not resume making the
voluntary advance wage payments.
Discussion
Although Calumet has reinstated Lopez’s maintenance and cure payments,
Lopez argues that the Court should order Calumet to increase the maintenance
payments and pay him attorney’s fees and punitive damages for interfering with the
maintenance and cure.
To win a preliminary injunction, a party must show that it has (1) no
adequate remedy at law and will suffer irreparable harm if a preliminary
injunction is denied and (2) some likelihood of success on the merits. If
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the moving party meets these threshold requirements, the district court
weighs the factors against one another, assessing whether the balance of
harms favors the moving party or whether the harm to the nonmoving
party or the public is sufficiently weighty that the injunction should be
denied.
Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011) (citations omitted).
“Maintenance . . . is designed to provide a seaman with food and lodging when
he becomes sick or injured in the ship’s service.” Vaughn v. Atkinson, 369 U.S. 527,
531 (1962). Courts interpret liberally the duty of employers to provide maintenance and
cure, and “[w]hen there are ambiguities or doubts, they are resolved in favor of the
seaman.” Id. at 532. An employer who willfully and wantonly disregards its
maintenance and cure obligation can be liable for punitive damages and the attorney’s
fees incurred by the employee to obtain maintenance and cure. Atl. Sounding Co., 557
U.S. 404, 129 S. Ct. at 2575; Manderson v. Chet Morrison Contractors, Inc., 666 F.3d
373, 382–83 (5th Cir. 2012).
Lopez may be entitled to attorney’s fees and punitive damages, but his
entitlement is a matter to be addressed at summary judgment or trial, not on a motion
for a preliminary injunction. See Manderson, 666 F.3d at 382–83 (considering
entitlement to attorney’s fees after bench trial); Rose v. Miss Pacific, LLC, No. 3:09-cv00306-ST, 2012 WL 75028, at *8–9 (D. Or. Jan. 10, 2012) (granting summary judgment
on claim for punitive damages); Moore v. Sally J, 27 F. Supp. 2d 1255, 1262 (W.D.
Wash. 1998) (finding that plaintiff was entitled to attorney’s fees after a bench trial).
Thus, the Court denies Lopez’s motion to the extent that it seeks attorney’s fees and
punitive damages at this time.
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Lopez also argues that he is entitled to a higher level of maintenance payments
than the fifteen dollars per day that Calumet provides. He presents evidence that his
expenses for food and housing are more than that. Calumet disputes only the
likelihood of success on the merits prong of the preliminary injunction standard, arguing
that the amount of maintenance it pays is reasonable.
The Seventh Circuit does not appear to have established a standard for
determining the amount of maintenance to which an employee is entitled. Calumet
argues that “[m]aintenance is the equivalent of the food and lodging to which the
seaman is entitled while at sea,” Cox v. Dravo Corp., 517 F.2d 620, 623 (3d Cir. 1975)
(en banc), and that Lopez’s actual expenses are thus irrelevant.
The Court, however, finds more persuasive the analysis of Hall v. Noble Drilling
(U.S.) Inc., 242 F.3d 582 (5th Cir. 2001). There, the court recognized that the
traditional rule was that a seaman was entitled to enough maintenance to give him the
equivalent of the food and lodging he would have received aboard his ship. Id. at
586–87. The court noted, however, that the traditional rule made little sense in modern
times because many seamen do not live and eat on their vessel yet are still entitled to
maintenance if injured, and because in many other cases lodging and food on land is
not directly comparable to that aboard a ship. Id. at 587. The court concluded:
Instead, the references to a seaman’s shipboard food and lodging serves
to define the amount of maintenance as no more and no less than the
reasonable costs of subsistence the seaman has incurred while
recuperating on land. This breaks down into two components: the
reasonable cost of food and lodging for a seaman living alone, and the
actual expense for food and lodging that the seaman has incurred.
Id. at 587. The court held that judges analyzing the proper level of maintenance should
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determine the seaman’s actual food and lodging expenses and award maintenance in
that amount if reasonable. Id. at 590.
Lopez has provided a table of his expenses. Pl. Reply, Ex. 1 at 3; see Nichols v.
Weeks Marine, Inc., 513 F. Supp. 2d 627, 638–39 (E.D. La. 2007) (burden of
production for plaintiff to show maintenance is light; testimony as to cost of food and
housing is sufficient). The table includes mortgage payments and expenses for
electricity, gas, water, and groceries, all of which are elements of the lodging and food
that comprise maintenance. Pl. Reply, Ex. 1 at 3; Hall, 242 F.3d at 589 & n.31. The
table, however, also contains expenses such as telephone bills, cable television and
internet bills, car insurance, and child support, which do not constitute food and lodging
expenses. Pl. Reply, Ex. 1 at 3. These expenses are not appropriately included in the
calculation of maintenance. See Hall, 242 F.3d at 585 (upholding district court
maintenance award that expressly excluded telephone, automobile costs, and the cost
of supporting children).
Lopez’s evidence indicates that he lives with Karen Kijewski and that the
mortgage and utility bills are in her name. Pl. Reply, Ex. 1 at 2, 4, 8–9. Lopez’s
monthly expenses for groceries must be prorated, because maintenance provides only
for the seaman and not for others with whom he resides. Hall, 242 F.3d at 589.
Accordingly, Lopez’s household’s reported monthly grocery express must be divided by
two. The Court concludes that the mortgage and utility expenses likewise must be
divided by two, because, according to the written statement of Kijewski, Lopez is
obligated to pay only half of those bills. Pl. Reply, Ex. 1 at 2; cf. Hall, 242 F.3d at 589
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(declining to prorate housing costs when seaman who lived with family was
nevertheless obliged to pay entire cost of rent). Half of Lopez’s household’s average
monthly expenses is $888.04, and thus his annual expenses are $10,656.42. Based on
this annual rate, Lopez’s expenses are $29.20 per day in a 365-day year, almost twice
the maintenance Calumet is currently paying. See Pl. Reply, Ex. 1 at 3.
Calumet does not argue that a maintenance payment of $29.20 would be
unreasonable but rather contends only that its payment of fifteen dollars is reasonable.
A injured seaman, however, is entitled to his actual food and lodging expenses if they
are reasonable. See Hall, 242 F.3d at 590. “A court may take judicial notice of the
prevailing rate [of maintenance] in the district,” but there are few cases discussing the
proper amount of maintenance in this district. Id. Courts in Illinois have approved of
maintenance of $32.86 per day in 1998 and $41.14 per day in 2010. Kohlhaas v. U.S.
United Barge Line, LLC, No. 08-CV-0239-MJR-PMF, 2010 WL 3211149, at *22 (S.D. Ill.
Aug. 13, 2010); Moreno v. Grand Victoria Casino, No. 98 C 336, 1998 U.S. Dist. LEXIS
14306, at *2 (N.D. Ill. Sept. 4, 1998). In Hall, a case arising out of Mississippi, the court
concluded that maintenance payments of $30.50 and $31.50 were reasonable for
lodging and food in 2001. Hall, 242 F.3d at 591; see Nichols, 512 F. Supp. 2d at 639
(finding thirty dollar per day maintenance payment reasonable in Louisiana in 2007).
The Court concludes that the limited evidence from other cases indicates that $29.20 is
a reasonable daily maintenance rate.
Calumet argues that its fifteen dollar per day maintenance is reasonable
because that is the amount provided for in a union contract it intends to sign with its
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employees soon. Def. Ex. 21-A at 16. In the proposed contract, Calumet its
employees’ union have agreed that maintenance payments for injured employees will
be fifteen dollars per day. Def. Exs. 21 & 21-A at 16. Calumet concedes that Lopez is
not bound by this agreement because he was not a member of the union at the time of
his injury. Ammar v. United States, 342 F.3d 133, 145 (2d Cir. 2003).
Courts can consider union agreements on maintenance as evidence to
determine whether a given amount of maintenance is reasonable. Hall, 242 F.3d at
587. The contractual rate of maintenance is only evidence that fifteen dollars is a
reasonable rate; it provides little evidence that $29.20 a day is unreasonable. See
Barnes v. Andover Co., L.P., 900 F.2d 630, 640 (3d Cir. 1990) (holding that union
contract maintenance rate did not bind even union members who had higher actual
expenses); Nichols, 513 F. Supp. 2d at 639 (finding that thirty dollars per day was
reasonable for maintenance even though by contract defendant paid union employees
only twenty dollars per day). In addition, the union contract is not particularly
compelling evidence of the reasonableness of the fifteen dollar rate, because the union
may have agreed to a low amount of maintenance that did not reflect reasonable
lodging and food costs in exchange for other concessions from Calumet. See Ammar,
342 F.3d at 146–47 (holding that collective bargaining agreement maintenance rate of
eight dollars per day was binding in case involving a union member, even though it was
insufficient for food and lodging in New York, because union may have obtained other
concessions).
The Court concludes that Lopez has a reasonable likelihood of succeeding in
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proving that he is entitled to maintenance at a rate of $29.20 per day. Furthermore,
Lopez may suffer irreparable harm before final resolution of his claim if he is forced to
attempt to live on only half of his actual lodging and food costs. Calumet does not
contend that it will suffer a greater degree of harm if the Court orders increased
maintenance. Obviously Calumet will have to expend more money, but this is still less
than the amount it voluntarily paid Lopez in advance wages until February 2012.
Accordingly, the Court orders Calumet to increase its maintenance payments to Lopez
from fifteen dollars per day to $29.20 per day.
Conclusion
For the reasons stated above, the Court grants Lopez’s motion to reinstate
maintenance and cure in part and denies it in part [docket no. 13]. Specifically, the
Court orders Calumet to increase the amount of maintenance that it pays to Lopez to
$29.20 per day. The Court otherwise denies the motion.
s/ Matthew F. Kennelly
MATTHEW F. KENNELLY
United States District Judge
Date: May 11, 2012
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