Durbin v. Marquette Transportation Company, LLC

Filing 37

MEMORANDUM OPINION & ORDER signed by Senior Judge Thomas B. Russell on 3/23/2021. Denying 26 Motion for Partial Summary Judgment; granting in part and denying in part 27 Motion for Partial Summary Judgment. cc: Counsel(KJA)

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 1 of 11 PageID #: 811

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:18-CV-00055-TBR-LLK
NATHAN DURBIN

PLAINTIFF

V.
MARQUETTE TRANSPORTATION
COMPANY, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
Before the Court are two motions: Defendant’s Motion for Partial Summary Judgment
Regarding Unseaworthiness, [DN 26], and Defendant’s Motion for Partial Summary Judgment
Dismissing the Claim for Maintenance and Cure, or, Alternatively, to Dismiss his Claim for
Attorneys’ Fees, [DN 27]. Both motions are fully briefed and ripe for adjudication. For the reasons
stated below: Defendant’s Motion for Partial Summary Judgment Regarding Unseaworthiness,
[DN 26], is DENIED. Defendant’s Motion for Partial Summary Judgment Dismissing the Claim
for Maintenance and Cure, or, Alternatively, to Dismiss his Claim for Attorneys’ Fees, [DN 27],
is GRANTED IN PART AND DENIED IN PART.

I.

Background
Defendant Nathan Durbin brought this action under the Jones Act, 26 U.S.C. § 30104 for

negligence, and under general maritime law for unseaworthiness and for maintenance and cure.
[DN 1]. Durbin claims that on November 26, 2015, while working as an employee of Marquette
Transportation Company, LLC (“Marquette”), he was “required to navigate an unreasonably
slippery, snowy, non-skid and ice melt deprived deck, without any assistive traction boot
attachments when because of said failure to provide a safe place to work and seaworthy vessel he
1

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 2 of 11 PageID #: 812

was injured.” Id. Throughout the summary judgment motions and related filings, the undisputed
factual account that emerges is that Durbin sustained an injury to his back when he slipped and
fell at work in 2015, and since that time, Durbin has sought and received medical treatment due to
the back injury. Durbin claims that Marquette’s actions caused or contributed to his damages,
including, but not limited to, pain and suffering, loss of earnings and earnings capacity, and various
types of medical expenses. Id. Marquette has filed separate motions for partial summary judgment
on (1) Durbin’s claim of unseaworthiness [DN 26], and (2) Durbin’s claim for maintenance and
cure [DN 27].1 Durbin responded to the motions, and Marquette replied to those responses.
Accordingly, the motions are ripe for adjudication. The Court addresses each motion in turn.

II.

Motion for Partial Summary Judgment Regarding Unseaworthiness
In its motion for partial summary judgment regarding unseaworthiness, Marquette

summarizes the relevant facts as follows:
At the time of the accident, Mr. Durbin was employed by Marquette as a seaman
and assigned to work as a senior deckhand aboard Marquette’s towboat, the M/V
SHOW ME STATE. On November 26, 2015, Mr. Durbin stepped from the deck of
the SHOW ME STATE to the deck of barge AGS-169, which was in the tow of the
SHOW ME STATE. Mr. Durbin slipped on snow that was on the deck of the barge
and fell onto the deck of the towboat causing his alleged injuries. The barge on
which he slipped was a “dumb” or unmanned barge to which no crew was assigned
and that was not owed by Marquette. Over two years later, Mr. Durbin filed suit
against Marquette asserting negligence under the Jones Act, unseaworthiness, and
seeking maintenance and cure. Mr. Durbin asserts that the AGS-169 was
unseaworthy due to the presence of ice or snow.
[DN 26-1 at 1-2] (citing DN 1, Complaint). Marquette argues that (1) Marquette cannot be held
liable for any alleged unseaworthiness of the barge on which Durbin slipped, and (2) even if
Marquette could be held liable for the alleged unseaworthiness of the barge, the barge was not

1

Neither Marquette nor Durbin has moved for summary judgment as to the negligence claim.

2

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 3 of 11 PageID #: 813

unseaworthy as a matter of law. Id. In response, Durbin argues that he has not pled a cause of
action based on the unseaworthiness of the barge, but rather, his unseaworthiness claim is based
on the unseaworthiness of the towboat, the M/V Show Me State. [DN 30]. As Marquette puts it,
“Plaintiff’s Response to Marquette’s Motion clarifies that his unseaworthiness claim against
Marquette relates to only the M/V SHOW ME STATE.” [DN 31 at 2] (emphasis in original).
Marquette argues that even though Durbin has explicitly stated he is not asserting a claim
for the unseaworthiness of the barge, the Court should still grant summary judgment on its motion
addressing the unseaworthiness of the barge. Id. The Court disagrees. It is nonsensical for this
Court to grant summary judgment on a claim that Plaintiff has not alleged. Further, Marquette has
provided no legal authority to support its position that the Court should grant summary judgment
anyway. Marquette only says that “Plaintiff does not dispute that he has no claim against the barge
. . . as a matter of law.” Id. at 2. Still, the Court is not persuaded that it is appropriate to grant
summary judgment on a claim that is not part of this action. Thus, the Court denies Marquette’s
Motion for Partial Summary Judgment Regarding Unseaworthiness, DN 26. The Court notes,
however, that Durbin has waived his claim for unseaworthiness of the barge, and he is barred from
later raising that claim in this action.

III.

Motion for Partial Summary Judgment on Maintenance and Cure/Attorneys’ Fees
Marquette also moves for partial summary judgment on Durbin’s claim for maintenance

and cure. [DN 27]. Marquette requests that the Court (1) dismiss Durbin’s claim for maintenance
and cure, or, alternatively, (2) dismiss Durbin’s claim for attorneys’ fees for failure to pay
maintenance and cure. Id.

3

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 4 of 11 PageID #: 814

a. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) sets forth the summary judgment standard: “The
court shall grant summary judgment if the 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).
“Summary judgment is appropriate only when the evidence, taken in the light most favorable to
the nonmoving party, establishes that there is no genuine issue as to any material facts and the
movant is entitled to judgment as a matter of law.” Good v. BioLife Plasma Services, L.P., 834 F.
App’x 188, 193 (6th Cir. 2020) (quoting V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465
(6th Cir. 2012)). “A genuine issue of material fact exists when there are ‘disputes over facts that
might affect the outcome of the suit under the governing law.’” Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “Summary judgment is not proper ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson, 477
U.S. at 248). “The moving party bears the initial burden of establishing an absence of evidence to
support the nonmoving party's case.” Davis v. Mich. Dep’t of Corr., No. 19-2264, 2020 WL
6364583, at *1 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Once the moving
party has met its burden of production, the nonmoving party cannot rest on its pleadings but must
present significant probative evidence in support of the complaint to defeat the motion for
summary judgment.” Id. (citing Anderson, 477 U.S. at 248-49). “[A]t the summary judgment stage
the judge's function is not himself to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.” Bethel v. Jenkins, No. 19-3392, 2021 WL
728315, at *3 (6th Cir. Feb. 25, 2021) (quoting Anderson, 477 U.S. at 249) (brackets in original).

4

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 5 of 11 PageID #: 815

b. Arguments
Marquette sets forth the facts relevant to Durbin’s claim for maintenance and cure as
follows. First, Marquette states that Durbin first injured his back at work in November 2015.
[DN 27 at 1]. Marquette says that Durbin reached maximum medical improvement (MMI) as to
that injury in July 2016. Id. Marquette then states that Durbin allegedly re-injured his back while
at work in May 2017 but was again declared to have reached maximum medical improvement as
to that injury in September 2017. Id. at 1-2; 4. Durbin was terminated from Marquette in
November 2017. Id. at 2. Marquette says that it provided maintenance and cure for the injury in
November 2015 and for the injury in May 2017. Id. at 4-5. Marquette says that after Durbin was
terminated, it heard nothing more from him until it was served with the instant lawsuit. Id. at 2.
However, Marquette says that during discovery, it learned that Durbin began treatment for
chronic low back pain in February 2018, and Durbin ultimately underwent a surgery. Id.
Marquette argues that it is not liable for reinstatement of maintenance and cure. Id. at 6.
Such reinstatement, it argues, is only required if “(1) there was conflicting medical evidence
regarding whether maximum medical cure was reach in the first instance or (2) maximum
medical cure was reached, but a new method of treatment or cure has been discovered.” Id. at 7
(citing Farrell v. United States, 336 U.S. 511, 519 (1949); Vassos v. Soc. Trans-Oceanic
Canopus, S.A., 205 F. Supp. 845, 846 (S.D.N.Y. 1959)). Marquette argues that there was no
dispute as to whether Durbin had reached maximum medical cure when he was treated for the
injuries in 2015 and 2017, so Marquette cannot be liable under the first prong. Id. at 9 (“On both
occasions, he was unequivocally declared to have reached maximum medical improvement by
his treating doctors and returned to full, unrestricted duty. No doctor has offered a different
opinion.”). Further, Marquette argues that none of the treatment Durbin has received since

5

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 6 of 11 PageID #: 816

February 2018 constitute newly discovered methods of treatment or cure, so it cannot be liable
under the second prong either. Id. at 5-6. Marquette also argues that it cannot be liable for any
subsequent flare-ups of Durbin’s earlier back injuries. Id. at 8 (“Courts generally are reluctant to
hold an employer liable for ‘subsequent flare-ups’ of an incurable disease or injury.”).
Marquette argues in the alternative that “[e]ven if this Court determines that maintenance
and cure are owed, there is no factual or legal basis for an award of attorneys’ fees in this case.”
Id. at 10. Marquette says it should not be held liable for attorneys’ fees incurred by Durbin in
pursuing this maintenance and cure claim because its failure to pay is reasonable.
Durbin argues that Marquette is liable for reinstatement of maintenance and cure. [DN 33
at 17]. Durbin says he has not reached maximum medical improvement because his back injury
has not been as cured as much as possible, and the injury has not been declared permanent in
character. Id. at 19. Durbin states:
It is admitted that certain providers have declared Mr. Durbin to have reached
MMI from the standpoint of their particular specialty, or that certain aspects of
Mr. Durbin’s injury are permanent. More importantly though, not one medical
provider has “declared” that Mr. Durbin’s “incapacity” is of a permanent
character, or that he has been “cured” as far as possible.
Id. Durbin contends that because further cure of his back injury was possible, he had not reached
maximum medical improvement and thus, Marquette was and is still liable for maintenance and
cure. Id. at 24. Durbin also argues that Marquette should be held liable for attorneys’ fees
because “Marquette and its counsel were extremely lax in investigating the plaintiff’s
maintenance claim; and have failed to reinstate maintenance benefits . . . even after the testimony
of medical providers . . . clearly establishing the merits of plaintiff’s claim.” Id. at 26.

6

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 7 of 11 PageID #: 817

c. Maintenance and Cure Standards
“Maintenance and cure is [a shipowner's obligation] to provide a seaman with food and
lodging when he becomes sick or injured in the ship's service; and it extends during the period
when he is incapacitated to do a seaman's work and continues until he reaches maximum medical
recovery.” Smith v. Omega Protein, Inc., 459 F. Supp. 3d 787, 794 (S.D. Miss. 2020) (quoting
Vaughan v. Atkinson, 369 U.S. 527, 531 (1962)) (brackets in original). “Maintenance is a daily
stipend for living expenses, whereas cure is the payment of medical expenses.” Id. (quoting Meche
v. Doucet, 777 F.3d 237, 244 (5th Cir. 2015)). “Cure involves the payment of therapeutic, medical,
and hospital expenses not otherwise furnished to the seaman . . . until the point of ‘maximum
cure.’” Id. (quoting Barto v. Shore Constr., L.L.C., 801 F.3d 465, 476 (5th Cir. 2015)). “Maximum
cure occurs ‘when it appears probable that further treatment will result in no betterment of the
seaman's condition.’” Id. (quoting Barto, 801 F.3d at 476). “Thus, where it appears that the
seaman's condition is incurable, or that future treatment will merely relieve pain and suffering but
not otherwise improve the seaman's physical condition, it is proper to declare that the point of
maximum cure has been achieved.” Id. at 796, n.10. “[W]hen a particular medical procedure is
merely palliative in nature or serves only to relieve pain and suffering, no duty to provide payments
for cure exists.” Barto, 801 F.3d at 476 (quoting Johnston v. Tidewater Marine Serv., 116 F.3d
478, at *2 (5th Cir. 1997)). “That is, ‘[w]hen further treatment is merely palliative, rather than
curative, a shipowner's obligation to pay maintenance and cure ends.’” Aadland v. Boat Santa Rita
II, Inc., No. 17-cv-11248-DJC, 2020 WL 6119926, at *3 (D. Mass. Oct. 16, 2020) (quoting Silva
v. F.V Silver Fox LLC, 988 F. Supp. 2d 94, 99 (D. Mass. 2013)) (brackets in original). “However,
such a determination should be unequivocal to terminate the right to maintenance and cure.” Smith,
459 F. Supp. 3d at 795 (quoting Tullos v. Res. Drilling, Inc., 750 F.2d 380, 388 (5th Cir. 1985)).

7

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 8 of 11 PageID #: 818

“Finally, maximum medical improvement ‘is a medical question, not a legal one,’ and any
‘ambiguities or doubts in the application of the law of maintenance and cure are resolved in favor
of the seaman.’” Giroir v. Cenac Marine Servs., LLC, No. 18-3595, 2019 WL 2233763, at *3 (E.D.
La. May 23, 2019) (quoting Breese v. Awi, Inc., 823 F.2d 100, 104 (5th Cir. 1987)).
“Punitive damages and attorneys' fees may be awarded under general maritime law ‘for the
willful and wanton disregard of the maintenance and cure obligation.’” Hurtado v. Balerno Int’l
Ltd., 408 F.Supp.3d 1315, 1333 (S.D. Fla. 2019) (quoting Atl. Sounding Co. v. Townsend, 557 U.S.
404, 424 (2009)). Examples of willful disregard may include: “(1) laxness in investigating a claim;
(2) termination of benefits in response to the seaman's retention of counsel or refusal of a
settlement offer; [and] (3) failure to reinstate benefits after diagnosis of an ailment previously not
determined medically.” Id. (quoting Hines v. J.A. LaPorte, Inc., 820 F.2d 1187, 1190 (11th Cir.
1987)) (brackets in original). “Attorney[s’] fees incurred in order to secure a maintenance and cure
award may be recovered only when the failure to provide maintenance and cure is ‘arbitrary,
recalcitrant or unreasonable.’” Barnes v. Sea Haw. Rafting, LLC, 983 F.Supp.2d 1208, 1217-18
(D. Haw. 2013) (quoting Kopczynski v. The Jacqueline, 742 F.2d 555, 559 (9th Cir. 1984)). “The
failure to pay maintenance and cure due an injured seaman is reasonable if a diligent investigation
indicates that the seaman's claim is not documented by the submission of medical reports or his
claim is not legitimate.” Snyder v. L & M Botruc Rental, Inc., 924 F. Supp. 2d 728, 734 (E.D. La.
2013) (citing McWilliams v. Texaco, Inc., 781 F.2d 514, 518-20 (5th Cir. 1986)).

d.

Discussion

The Court will not grant summary judgment on the maintenance and cure claim. There
remains a genuine dispute of material fact between the parties on maximum medical improvement.

8

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 9 of 11 PageID #: 819

Marquette contends that on July 8, 2016, Durbin’s doctor determined that Durbin reached
maximum medical improvement as to the November 2015 injury. [DN 27 at 4]. Marquette supports
this with Dr. Michael Sorensen’s Chart Notes. [DN 27-6 at 1] (“At this point since the patient
reports he is doing well and working in his job on the boat, he will be designated as maximum
medical improvement for the low back injury 11/26/2015.”). Marquette also contends that on
September 27, 2017, another doctor determined that Durbin reached maximum medical
improvement as to the May 2017 injury. [DN 27 at 4]. Marquette supports this with Dr. David
Dowling’s Statement of Maximum Medical Improvement. [DN 27-9 at 1] (“Nathan Durbin was
seen by me initially on May 11, 2017 for a work-related injury of May 2, 2017 . . . He is placed at
maximum medical improvement as of today on September 27, 2017 based on the AMA Guides to
the Evaluation of Permanent Impairment Sixth Edition Lumbar Spine.”).
Durbin contends that he had not reached maximum medical improvement, and the
treatments he has received since he stopped working at Marquette are curative, not just palliative.
[DN 33 at 16; 21]. (“Dr. James C. Varner, Dr. Samuel R. Schroerlucke, and Dr. Matthew Kangas
have all testified and declared that Mr. Durbin has not reached maximum medical
improvement/MMI; and that new methods of curative treatment have been recommended to
improve Mr. Durbin’s condition and functionality.”). Durbin points to Dr. James Varner’s
deposition testimony that the nerve blocks Durbin was receiving merely “treats the inflammatory
effects” of Durbin’s back injury rather than “fixing or eliminating the actual underlying condition.”
[DN 33-11 at 6-7]. Durbin also points to Varner’s testimony that Durbin’s injury “ultimately
required surgical intervention.” Id. at 13. Next, Durbin points to Dr. Matthew Kangas’s testimony.
[DN 33 at 12]. As Durbin characterizes it: “Dr. Kangas testified that although Mr. Durbin’s
arthritic changes and surgical scar tissue were permanent, Mr. Durbin would not reach MMI for

9

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 10 of 11 PageID #: 820

treatment of his chronic lumbar radiculopathy for more than a year from November 27, 2019, the
date of the radiofrequency ablation or rhizotomy.” Id. (citing DN 33-31 at 12).
Durbin’s right to maintenance and cure turns on whether Durbin’s injury reached
maximum medical improvement. Whether the injury reached maximum medical improvement
depends on the permanency of Durbin’s injury and whether Durbin’s treatments are curative or
merely palliative. These fact issues are material to Durbin’s right to recover maintenance and cure,
and it appears that the parties agree on few, if any, of them. Because the Court finds that genuine
disputes of material fact remain, summary judgment cannot be granted. See Smith, 459 F. Supp.
3d at 795 (denying summary judgment where plaintiff offered sworn statement of doctor who
testified that plaintiff’s injury could have benefited from additional treatment); Alario v. Offshore
Serv. Vessels, LLC, 477 F. App’x 186, 188 (5th Cir. 2012) (affirming district court’s grant of
summary where plaintiff had not “provided any medical opinion that further treatment would
improve her physical condition or do anything but relieve pain and suffering”); McKinney v.
American River Transp. Co., 954 F.Supp.2d 799, 812 (S.D. Ill. 2013) (finding summary judgment
was not appropriate where “the record before the Court contains a material fact issue as to when
Plaintiff reached MMI”); Purefoy v. Nat’l Maint. & Repair of Ky., Inc., No. 5:07CV-60-R, 2007
WL 3306073, at *2 (W.D. Ky. Nov. 6, 2007) (denying summary judgment where parties disputed
whether plaintiff had attained maximum medical improvement); Dickson v. Nat’l Maint. & Repair
of Ky., Inc., No. 5:08–CV–00008, 2011 WL 12538613, at *19 (W.D. Ky. Apr. 28, 2011) (denying
summary judgment where outstanding genuine and material fact issue remained because it was
unclear what improvements would result from recommended future medical treatment). Therefore,
Marquette’s motion for partial summary judgment as to maintenance and cure is denied.

10

Case 5:18-cv-00055-TBR-LLK Document 37 Filed 03/24/21 Page 11 of 11 PageID #: 821

However, the Court will grant summary judgment to Marquette on Durbin’s claim for
attorneys’ fees. The Court agrees that Marquette’s failure to pay maintenance and cure is
reasonable, even if it is ultimately determined that maintenance and cure is owed, because there is
a genuine dispute regarding maximum medical improvement. Durbin has not pointed to any
significant probative evidence that Marquette has exercised willful and wanton disregard for its
potential maintenance and cure obligation such as laxness in investigating Durbin’s claim,
arbitrary denial, or other unreasonably obstinate behavior. The Court finds there is no genuine
dispute of material fact on this issue, and therefore, Marquette is entitled to summary judgment.
Accordingly, Marquette’s motion for partial summary judgment as to attorneys’ fees is granted.

IV.

Conclusion

For the reasons stated above:
1. Defendant’s Motion for Partial Summary Judgment Regarding Unseaworthiness, [DN 26],
is DENIED.
2. Defendant’s Motion for Partial Summary Judgment Dismissing the Claim for Maintenance
and Cure, or, Alternatively, to Dismiss his Claim for Attorneys’ Fees, [DN 27], is
GRANTED IN PART AND DENIED IN PART.

IT IS SO ORDERED.

March 23, 2021

cc: counsel

11