Williams v. Central Contracting & Marine et al

Filing 51

ORDER GRANTING Plaintiff's Motion to Dismiss for Failure to State a Claim (Doc. 33 ). Signed by Judge Staci M. Yandle on 1/9/2017. (tfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

TIMOTHY W. WILLIAMS,

)
)
Plaintiff,
)
)
vs.
)
)
CENTRAL CONTRACTING & MARINE )
INC., and M/V STACEY DIANNE, in rem, )
)
Defendants.

Case No. 15-CV-867-SMY-RJD

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff Timothy Williams’ Motion to Dismiss
Defendant Central Contracting & Marine Inc.’s (“CCM”) counterclaim pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure (Doc. 33). CCM filed a response (Doc. 41). For the
following reasons, Williams’ motion to dismiss is GRANTED.
This case arises out of Williams’ employment with CCM on October 22, 2014 as a
deckhand aboard the vessel, M/V Stacy Dianne. The Complaint alleges that Williams was
working aboard the vessel by himself without incident for several hours until he “jerked on a
ratchet to tighten a rigging wire[,]” at which time “the rigging suddenly became slack and caused
[P]laintiff to fall.”

(Doc. 1, p. 2).

Williams brought claims for Jones Act Negligence,

Unseaworthiness of the M/V Stacy Dianne and Maintenance and Cure under General Maritime
Law.
CCM filed a Counterclaim (Doc. 29) alleging that Williams has a history of relevant
injuries that he should have disclosed to the company. The Counterclaim further alleges that
CCM did not require Williams to undergo a pre-employment physical, but had he disclosed his
previous injuries, he would not have been hired.

CCM is seeking reimbursement for the

maintenance and cure it has already paid to Williams.
Discussion
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a
claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chi. Lodge
No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint, or in this case, a counterclaim, must
include “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A “complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed2d 868 (2009) (quoting Twonbly, 550 U.S. at 570).
“In evaluating the sufficiency of the complaint, [courts] view it in the light most
favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all
possible inferences from the allegations in the plaintiff’s favor.” Anchor Bank, FSB v. Hofer,
649 F.3d 610, 614 (7th Cir. 2011). If a party alleges facts that show they have no legal claim,
they have pleaded themselves out of court. See Peterson v. McGladrey & Pullen, LLP, 676 F.3d
594, 600 (7th Cir. 2012).
CCM’s theory of recovery is based on the McCorpen defense:
Where the ship owner does not require a pre-employment medical examination or
interview, the rule is that a seaman must disclose a past illness or injury only
when in his own opinion the ship owner would consider it a matter of importance.
If the ship owner is unable to persuade the court or jury that the seaman could
reasonably be expected to have considered his medical history a matter of
importance, he will be liable for maintenance. He will be liable if it is found that
there existed reasonable grounds for the seaman’s good-faith belief that he was fit
for duty.
McCorpen v. Cent. Gulf S. S. Corp., 396 F.2d 547, 548-49 (5th Cir. 1968).
This principle is typically regarded as a defense used to justify the denial of maintenance
and cure payments before they have been paid. Id. CCM, however, asserts that it should be able
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to recover the maintenance and cure payments it has already paid to Williams because the
McCorpen defense may have prevented Williams from receiving maintenance and cure in the
first place. Although the Seventh Circuit Court of Appeals has not addressed whether an
independent cause of action can be brought based on the McCorpen defense, the Fifth Circuit
has.
In Boudreaux v. Transocean Deepwater, Inc., the Fifth Circuit held that once a ship
owner pays maintenance and cure to an injured seaman who has concealed a preexisting
disability, the payments can be recovered only by an offset against the seamen’s damages award,
not by an independent suit seeking affirmative recovery. 721 F.3d 723 (5th Cir. 2013). The
Fifth Circuit reasoned that the employer has the right to investigate an injured seaman’s claim
before tendering any payments of maintenance and cure. If the employer finds any causal link
between the present injury and the concealed preexisting disability, it can bring suit to terminate
its obligation to pay. Id. at 728.
CCM contends that this issue has been previously addressed in Phillips v. Hunter Marine
Transport, Inc., “where a marine employer obtained a judgment . . . on a counterclaim to recover
maintenance and cure benefits the plaintiff seaman was not entitled to receive.” (Doc. 41 p. 1-2).
Phillips, however, is “inapposite as the employer invoked diversity jurisdiction, rather than
admiralty jurisdiction, and asserted a claim for fraud and material misrepresentation.” Am. River
Transp. Co. v. Benson, No. 12 C 6222, 2012 WL 5936535, at 5 (N.D. Ill. Nov. 27, 2012).
Simply put, Phillips concerned a wholly different cause of action and was not decided based on
maritime law. Further, in Vitcovich v. Ocean Rover O.N., also relied upon by CCM, the Ninth
Circuit upheld summary judgment for a ship owner on its counterclaim for reimbursement of
maintenance and cure, but “the court did not directly address the validity of a cause of action for

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recovery.” Id. Neither of these cases decided the specific issue currently before the Court and
the Court is not persuaded by CCM’s urging that it carve out a new cause of action in maritime
law.
Employers have the opportunity and right to investigate maintenance and cure claims
such as this before payments are tendered and they can do so without subjecting themselves to
liability for compensatory or punitive damages. 721 F.3d at 728. Moreover, the inability for the
employer to seek reimbursement after the fact under these circumstances does not result in a
windfall for injured seamen who may have concealed their previous injuries. Even absent fraud,
an employer is entitled to an offset for any Jones Act damages recovered by the seaman to the
extent they duplicate maintenance and cure previously paid. See Am. River Transportation Co.
v. Phelps, 189 F. Supp.2d 835, 853-54 (S.D. Ill. 2001).
For the foregoing reasons, CCM’s counterclaim fails to state a claim upon which relief
can be granted. Accordingly, Plaintiff’s motion to dismiss is GRANTED and CCM’s
Counterclaim is DISMISSED with prejudice.

IT IS SO ORDERED.
DATED: January 9, 2017
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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