Boudreaux v. Transocean Deepwater, Inc.
Filing
74
ORDER AND REASONS dismissing 54 Motion for Judgment on the Pleadings; granting 54 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 10/18/2011. (lag, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WALLACE BOUDREAUX
CIVIL ACTION
VERSUS
NUMBER: 08-1686
TRANSOCEAN DEEPWATER, INC.
SECTION: “B”(4)
ORDER AND REASONS
Before the Court is Defendant and Counterclaimant Transocean
Deepwater, Inc.’s (“Defendant”) opposed Motion for Judgment on the
Pleadings,
or
in
the
alternative,
Motion
for
Partial
Summary
Judgment on Counterclaim (Rec. Docs. No. 54, 63 & 65). Defendant
seeks restitution of maintenance and cure payments made to Plaintiff
Wallace
Boudreaux
(“Plaintiff”)
under
general
maritime
law.
Accordingly, and for the reasons articulated below,
IT IS ORDERED Defendant’s Motion for Judgment on the Pleadings
is DISMISSED and Defendant’s alternative Motion for Partial Summary
Judgment is GRANTED.
FACTUAL AND PROCEDURAL HISTORY
On
April
18,
2008,
Plaintiff
filed
a
complaint
against
Defendant seeking damages of $1 million to compensate his reduced
earning capacity as a result of an alleged injury sustained while in
Defendant’s employ as well as $250,000 in compensatory damages for
back maintenance and cure allegedly owed by Defendant, continuing
maintenance and cure costs and attorney’s fees.
(Rec. Doc. No. 1).
Plaintiff’s general maritime and Jones Act claims arise from an
alleged incident in May 2005 while employed by Defendant as an
assistant barge supervisor, Plaintiff claims he injured his back as
a
result
of
Defendant’s
negligence
while
performing
anchor
maintenance aboard one of Defendant’s vessels. (Rec. Doc. No. 33 at
1-2).
Through
discovery,
it
was
established
that
Plaintiff
intentionally concealed from Defendant at the time of his post-hire
medical interview significant back injuries, including treatment for
back pain in 1997, 1998 and 2000.
(Rec. Doc. No. 54-1 at 2).
Plaintiff also concealed an MRI conducted on October 24, 2004,
revealing an annular disc fissure at L4-5 and disc protrusion at L5S1 with neural impingement; and a 50-pound lifting restriction from
the physician who performed a prior pre-employment physical for
Diamond Offshore.
Id.
It was also learned Defendant had paid
Plaintiff maintenance and cure since the alleged incident, totaling
$276,263.36.
(Rec. Doc. No. 53 at 2).
On March 9, 2010, Defendant filed a Motion for Partial Summary
Judgment on Plaintiff’s maintenance and cure claims, asserting
Plaintiff had raised no issue of material fact in light of McCorpen
v. Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968);1
1
Under McCorpen, a Jones Act employer is not bound to make maintenance and cure
payments if the employee intentionally withheld preexisting health conditions material
to the employer’s decision to hire him and there is a connection between the withheld
preexisting condition/information and the injury complained of in the lawsuit. McCorpen
v. Central Gulf Steamship Corp., 396 F.2d 547, 548-49 (5th Cir. 1968), cert. denied, 393
U.S. 894, 89 S.Ct. 223, 21 L.Ed.2d 175 (1968); see also, Johnson v. Cenac Towing, Inc.,
-2-
(Rec. Doc. No. 26 at 2).
On April 6, 2010, Plaintiff formally
requested the Court to allow him to withdraw his maintenance and
cure claims.
(Rec. Doc. No. 29).
On April 7, 2010, this Court
granted Defendant’s Motion for Partial Summary judgment based the
his McCorpen defense and dismissed Plaintiff’s maintenance and cure
claims.
(Rec. Doc. No. 30).
Defendant then filed on April 9, 2010,
a Motion for Summary Judgment (Rec. Doc. No. 33) on Plaintiff’s
separate negligence claim, claiming Plaintiff could not make a prima
facie
case
of
negligence,
and
Counterclaim on May 25, 2010.
a
Motion
for
(Rec. Doc. No. 40).
Defendant’s
Motion
for
Summary
Judgment
negligence
claims,
but
granted
Defendant’s
counterclaim.
Leave
on
the
to
File
a
The Court denied
merits
request
to
of
the
file
a
(Rec. Doc. No. 52).
Defendant filed a counterclaim against Plaintiff on June 29,
2010 seeking restitution of the maintenance and cure payments made
to him.
(Rec. Doc. No. 53).
Defendant filed the instant motion
seeking declaration that it is legally entitled to said restitution
(Rec. Doc. No 54).
Defendant concedes restitution for a Jones Act employer of
maintenance and cure payments made to an employee subsequently found
to have concealed a material, pre-existing medical condition under
McCorpen is a res nova issue in the Fifth Circuit. McCorpen, 396
F.2d at 548-48; (Rec. Doc. No. 54-1 at 6).
544 F.3d 296, 301 (5th Cir. 2008).
-3-
However, Defendant
contends that Plaintiff has been unjustly enriched as a result of
his fraud and Plaintiff cannot dispute that material fact
Doc. No. 54-1 at 1, 3).
(Rec.
Defendant claims at least one circuit, the
Ninth, has allowed restitution of maintenance and cure payments
based on an employee’s failure to disclose a pre-existing medical
condition, Id. at 7-8 citing Vitcovich v. Ocean Roveron, 106 F. 3d
411 (Table) (9th Cir. 1998) (Unpublished Opinion).
Defendant also asserts it is entitled to restitution under
Louisiana Civil Code Article 2299.
That article binds a person who
received something not owed to him to return it to the person from
whom he received it.
La. C.C. Art. 2299; (Rec. Doc. No. 54-1 at 9).
In support, Defendant refers us to compensation laws that allow
restitution based on an employee’s fraud, including the Longshore
and Harbor Workers’ Compensation Act and Louisiana Revised Statute
23:1208.
(Rec. Doc. No. 54 at 8-9).
Plaintiff contends there is no cognizable general maritime law
claim under Fifth Circuit precedent in this instance.
No. 63 at 2).
(Rec. Doc.
Plaintiff argues that Defendant’s cited authorities
are neither controlling nor promote an admiralty law of uniform
application.
Id. at 3.
Plaintiff distinguishes Defendant’s cited
cases and specifically refers to a state appellate decision that
rejected, as a matter of law, a claim for restitution of maintenance
and cure.
Id. at 4; and Cotton v. Delta Queen Steamboat Company,
Inc., 36 So.2d 262 (La.App. 4 Cir. 2010). (Rec. Doc. No. 63 at 6).
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Plaintiff further contends that reliance upon other compensation
laws is inappropriate because those laws expressly exclude maritime
workers.
The question before the court is whether Defendant is entitled
to restitution or recoupment from Plaintiff seaman for illegally
obtained maintenance and cure payments under general maritime law.
LAW AND ANALYSIS
I. Standard of Review
Federal Rule 12(c) allows for a party, after pleadings are
closed, “but early enough not to delay trial,” to move for a
judgment on the pleadings.
Fed. R. Civ. P. 12(c).
look only at the pleadings and accept them as true.
The court must
St. Paul Ins.
of Bellaire v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir.
1991).
Under this constraint, judgment in favor of the moving party
is proper if “the material facts are not in dispute and a judgment
on the merits can be rendered by looking to the substance of the
pleadings and any judicially noticed facts.” Hebert Abstract Co. v.
Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990).
The
central issue is whether “the complaint states a valid claim for
relief.”
Hughes v. The Tobacco Institute, Inc., 278 F.3d 417, 420
(5th Cir. 2001). However, when material outside the pleadings is
considered, the court has discretion to treat the motion as one for
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summary judgment.
St. Paul Ins. of Bellaire, 937 F.2d at 279.
Summary judgment is appropriate where “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).
A genuine issue of material fact is present when the evidence is
such that a reasonable fact finder could return a verdict for the
non-movant.
Piazza's Seafood World, LLC v. Odom, 448 F.3d 744, 752
(5th Cir. 2006).
The substantive law controls what facts are
material, that is, what each party must prove as an essential
element to its case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Defendant moves for a judgment on the pleadings, or in the
alternative,
partial
summary
judgment.
Under
the
motion
for
judgment on the pleadings, the Court must look only at Defendant’s
pleadings
to
determine
if
it
has
stated
a
valid
claim
for
restitution of maintenance and cure under general maritime law.
Hughes, 278 F.3d at 420.
In the alternative, Defendant seeks
summary judgment on two facts: that it has paid some amount of
maintenance and cure to Plaintiff and that this Court has already
granted its motion to dismiss Plaintiff’s maintenance and cure claim
based
on
the
McCorpen
defense.
(Rec.
Doc.
No.
54-1
at
4).
Defendant bears the burden of showing there is no genuine issue to
these facts.
Piazza's Seafood World, LLC, 448 F.3d at 752. Because
parties refer us to matters outside the confines of the instant
-6-
pleadings,
we
render
our
decision
using
the
summary
judgment
standard noted earlier.
II. Other Circuits and Analogous Compensation Schemes
It should be noted from the outset that very few courts in the
country have addressed the issue raised by this motion.
David W.
Robertson & Michael F. Sturley, Is an Employer Who Pays Undeserved
Maintenance or Cure Entitled to Restitution? 35 TLNMLJ 493, 558
(2011).
The Fifth Circuit in Patterson v. Allseas, USA, et al.,
expressed its unease with restitution of maintenance and cure when
it declined to decide it as a “difficult res nova issue” in an
unpublished
opinion.
Patterson
v.
Allseas
USA,
et
al.,
145
Fed.Appx. 969, 971, 2005 WL 2055879 (5th Cir. 2005)(unpublished
opinion).
In that case, an employer counterclaimed for recovery of
maintenance
and
cure
payments
based
on
its
McCorpen
defense.
However, the district court found that the defendant failed to prove
the elements of McCorpen. The Fifth Circuit on rehearing affirmed
the dismissal of the counterclaim based on a factual finding that
the employer failed to establish the McCorpen defense and again
declined
to
decide
the
legal
issue
of
whether
restitution claim exists on the record before it.
a
cognizable
Id. at 971.
The Ninth Circuit, in an unpublished panel opinion, appears to
be the only federal appellate court that allowed restitution of
maintenance and cure payments to an employer that successfully
established the McCorpen defense.
-7-
Vitcovich v. Ocean Rover O.N.,
106 F. 3d 411 (Table) 1997 WL 21205 (9th Cir. 1997).
In Vitcovich,
the court affirmed the district court’s grant of summary judgment on
the employer’s counterclaim for restitution of maintenance and cure.
As
here,
the
employee
intentionally
concealed
or
withheld
information about a pre-existing injury similar to the injury for
which he claimed maintenance and cure.
again
as
here,
was
also
found
to
The withheld information,
have
been
material
to
the
employer’s hiring decision.
In Souviney v. John E. Graham & Sons, 1994 WL 416643 (S.D. Ala.
1994), 1994 AMC 1671, 1677 summary judgment was granted in favor of
the seaman’s employer to allow recovery of paid maintenance and
cure.
As
basis,
the
Souviney
court
found
that
the
seaman
intentionally concealed material facts about the very injury for
which he sought recovery against the defendant.
There is no
material dispute that the instant Plaintiff engaged in the same or
substantially
Souviney.
District
similar
wilful
concealment
of
material
facts
as
In another district court opinion, Chief United States
Judge
Fong
granted
summary
judgment
on
a
Jones
Act
employer’s counterclaim to recover maintenance and cure payments
made to the seaman, since he failed to disclose material medical
facts, the disclosure of which was plainly desired by the seaman’s
employer during a pre-hiring medical examination or interview.
Quiming v. International Pacific Enterprises, Ltd., 773 F. Supp.
230, 235-237 (D.Haw. 1990).
-8-
Defendant argues that a seaman’s right to maintenance and cure,
which is a right without respect to the negligence of either him or
his employer, is analogous to rights to compensation benefits under
the LHWCA.
excludes
(Rec Doc. No. 65 at 3).
vessel
§902(3)(G).
furnish
crew
members
However, the LHWCA expressly
from
its
coverage.
33
U.S.C.
Further, it is well-settled that a shipowner’s duty to
maintenance
and
cure
stems
from
an
age-old,
almost
paternalistic desire to protect seamen from the hazards unique to
service at sea.
See Vella v. Ford Motor Co., 421 U.S. 1, 3-4
(1975); See also Adams v. Texaco, Inc., 640 F.2d 618, 620 (5th Cir.
1981).
As a matter of policy, seamen are wards of the federal
courts because of the perilous service they perform within marine
commerce.
Seamen
enjoy
liberal
protection
to
the
extent
that
ambiguities or doubts about entitlement to maintenance and cure are
resolved in favor of the seaman.
527, 532 (1962).
Vaughan v. Atkinson, 369 U.S.
Defendant’s attempted reliance upon the more
traditional worker compensation scheme in the LHWCA is misplaced.
The later provision does not afford the same level of protection as
that afforded to seaman.
As the Vella court noted, the obligation
of maintenance and cure was designed to be a broad and inclusive
duty, free of uncertainty, complexity and administrative burdens.
421 U.S. at 4-5 (citing Farrel v. United States, 336 U.S. 511, 516
(1949).
Importantly, there is no doubt that this seaman was not
entitled to those benefits based upon the McCorpen defense.
-9-
There
is no “voluntary” payment of same where the employment decision was
based upon false, material and associated medical history assertions
by the seaman.
Under Louisiana Revised Statute 23:1208, an employee may be
ordered to make restitution if he willfully makes false statements
to an employer concerning benefit payments. La. Rev. Stat. § 23:1208
(D). Defendant argues this statute supports restitution of benefits
gained through willfully concealing pre-existing conditions. It
cites an opinion from the Louisiana Court of Appeal for the Second
Circuit.
(Rec. Doc. No. 54-1 at 9); Yarnell Ice Cream Co. V. James
Greg Allen, 759 So.2d 1066 (La.App. 2 Cir. 2000). Louisiana Revised
Statute 23:1208-1 provides a procedural format that an employer must
follow in making inquiries into pre-existing medical conditions,
e.g. written notice in boldface type of no less than 10-point size
advising the employee that failure to answer truthfully may result
in loss of compensation benefits.
La. Rev. Stat. § 23:1208-1.
In the absence of a clearly defined maritime rule of law,
admiralty courts will enforce applicable state law.
Hess v. U.S.,
361 U.S. 314, 318-19 (1960); Bell v. Tug Shrike, 332 F.2d 330, 332
(4th Cir. 1964).
However, decisions in admiralty law strive for
uniformity in national application adherent to rooted admiralty
principles.
Hess, 361 U.S. at 320; Isbrandtsen Co. v. Johnson, 343
U.S. 779, 780 (1952) (“Statutes which invade the common law or the
general maritime law are to be read with a presumption favoring the
-10-
retention of long-established and familiar principles.”).
Federal
courts have applied state laws more frequently in maritime cases in
which the missing rule of law was one dominated by the states, such
as family law issues. See Tidewater Marine Towing, Inc. v. CurranHouston, Inc., 785 F.2d 1317, 1318 (5th Cir. 1986) (using Louisiana
law to define marital status, an area in which states are accorded
great deference, of a woman bringing a maritime wrongful death
claim).
Application of state law cannot substantially interfere
with or alter the rights of the litigants established under federal
law.
Pope & Talbot v. Hawn, 346 U.S. 406, 409 (1953) (refusing to
apply Pennsylvania’s contributory negligence doctrine as a complete
bar to a seaman’s recovery because, even though general maritime law
was silent on the issue, such a ruling would be incompatible with
admiralty policy).
Maintenance and cure is a right of seamen
particular to maritime law and should be governed by federal law as
much as possible.
Garrett v. Moore-McCormack Co., 317 U.S. 239, 245
(1942) (“The source of the governing law applied is in the national,
not the state, governments.”).
We are guided by above cited admiralty based principles.
Seamen injured during the course of their voyage or service to the
vessel are entitled to maintenance and cure, without regard to fault
arising from the injury causing accident.
Doubts and
ambiguities
about entitlements are to be resolved in the seaman’s favor.
The
question of whether seamen are still so entitled when they wilfully
11
-11-
conceal a related pre-existing medical condition that would have
materially affected the Jones Act employer’s decision to hire has
been answered in the McCorpen opinion and it’s progency.
The
logical and natural consequences for knowingly violating the duty to
disclose such a condition, when clearly sought by the Jones Act
employer, and the resulting receipt of benefits that would not have
been due must now be addressed.
The facts of this case are unique
because the seamen not only failed to disclose his condition during
the initial stages of employment but he also concealed it by failing
to timely disclose it to his employer and his own attorney until
years later, and then only on the eve of the ruling on the McCorpen
issue.
This seamen’s inactions were more than unreasonable; they
were intentionally done and void of good faith. There is no evidence
that the instant employer failed to reasonably discover the basis
for it’s McCorpen defense.
seaman’s
rights
to
the
Moreover, there is no evidence that a
benefits
of
food,
lodging
and
medical
services would either be delayed or become uncertain by extending
the McCorpen defense to include a right of action for restitution,
under limited circumstances. Under noted special circumstances, the
employer’s recovery of undue maintenance and cure payments or,
alternatively, a credit in favor of the employer against monetary
relief it might pay in resolution of ultimate liability issues would
not, in our opinion, run afoul of or interfere with traditional
maritime policies. Instead, such a result would promote respect and
12
-12-
compliance with same.
obtained
potential
benefits
The alternative method of repaying illegally
would
hardship
to
address
the
the
seaman.
concern
Cf.,
arising
Cotton
v.
from
Delta
any
Queen
Steamboat Co., Inc., 36 So.3d at 268, n.7 (quoting Kirk v. Allegheny
Towing, Inc., 620 F. Supp. 458, 462-63 (W.D. Pa. 1985)).
Further, this Court declines Defendant’s invitation to apply
Louisiana
Civil
restitution.
Code
Article
2299
to
it’s
counterclaim
for
Defendant did not bring the counterclaim directly
under that article, but instead under general maritime law.
(Rec.
Doc. No. 53 at 1).
As stated above, summary judgment is appropriate where “the
movant shows that there is no genuine dispute as to any material
fact.”
Fed. R. Civ. P. 56(a).
Plaintiff’s
affidavit
in
Defendant has attached to its motion
which
he
admits
Defendant
paid
him
maintenance and cure faithfully since the time of the accident.
(Rec. Doc. No. 54-2 at 3-5).
Plaintiff cannot dispute this fact and
has not offered any evidence to rebut this fact.
Similarly, this
Court specifically granted Defendant’s motion for partial summary
judgment when it dismissed Plaintiff’s maintenance and cure claim.
(Rec. Doc. No. 30).
In Order and Reasons granting Defendant leave
to file it’s counterclaim for restitution, this Court held that
partial
summary
judgment
was
based
on
finding,
without
contradiction, that Defendant established the McCorpen defense.
Plaintiff
engaged in wilful concealment of a material pre-existing
13
-13-
injury that would have affected the employment decision.
The pre-
existing injury or condition substantially involves the same or
causally connected injuries or disabilities in this litigation.
(Rec. Doc. No. 52 at 5-6).
Plaintiff apparently recognized those
facts in seeking withdrawal of the maintenance and cure claim in
light of Defendant’s motion.
(Rec. Doc. No. 29).
As such, there is
no dispute of material fact, and summary judgment now on the
counterclaim is proper.2
Seaman and their employers have
contractual and other legal duties to each other.
It is a rare rule
of law, maritime in nature or otherwise, that denies relief to an
aggrieved party in the face of wilful misconduct.
court must be forthright and truthful.
Even wards of the
The entitlements seamen
enjoy are created with the contract of employment. “Only some wilful
misbehavior or deliberate act of indiscretion suffices to deprive
the seaman of his protection.” Aguilar v. Standard Oil Co., 318 U.S.
724, 731(1943) This seaman has deprived himself of protection
through his own wilful and deliberate misconduct and consequences
should be considered.
of
justice,
An opposite result would lead to a travesty
encouraging
mockery
of
the
judicial
process
and
denigration of the founding principles of admiralty based schemes
2
While not pled here, wilful assertion of a frivolous claim would also warrant
financial sanctions against the Plaintiff himself. Counsel for Plaintiff acted
reasonably at all pertinent times; upon discovering clear evidence against his client,
he moved to withdraw Plaintiff’s maintenance and cure claims. Without reasonable
explanation, the Plaintiff intentionally withheld and concealed pertinent evidence for
years, even from his own counsel, to collect noted benefits that he was clearly not
entitled to receive. The Jones Act negligence action and unseaworthiness claims under
general maritime law remain unaffected by this decision.
14
-14-
that seek to promote the “combined objective of encouraging marine
commerce
and
assuring
the
well-being
of
seamen”.
Aguilar
Standard Oil Co., 318 U.S. at 727-28(1943).
New Orleans, Louisiana, this 18th day of October, 2011.
______________________________
UNITED STATES DISTRICT JUDGE
15
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v.
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