Domjan v. Settoon Construction Inc et al
Filing
85
ORDER denying 80 Motion for Judgment as a Matter of Law alt. for New Trial. Signed by Judge Jay C. Zainey on 6/25/12. (jrc, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL DOMJAN
CIVIL ACTION
VERSUS
NO: 10-3398
SETTOON CONSTRUCTION, INC.,
ET AL.
SECTION: "A" (1)
ORDER
Before the Court is a Motion for Judgment As a Matter of Law
or Alternatively for a New Trial (Rec. Doc. 80) filed by
plaintiff Michael Domjan.
motion.
Defendant Divcon, LLC opposes the
The motion, noticed for submission on June 20, 2012, is
before the Court on the briefs without oral argument.
On April 4, 2012, the jury returned a verdict in favor of
Plaintiff Michael Domjan on his Jones Act claim.
(Rec. Doc. 71).
On April 11, 2012, the Court entered judgment accordingly.
(Rec.
Doc. 75).
Plaintiff moves for post-trial relief on several issues.
Comparative Negligence.
Plaintiff argues that the jury was
clearly in error when it found him to be 45 percent at fault for
his own injuries.
Plaintiff argues that the evidence supports a
violation of OSHA Regulation 53 such that the jury should not
have been allowed to even consider Plaintiff’s comparative fault.
The motion is DENIED as to this issue.
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The jury’s
assessment of comparative fault was not erroneous under the
facts.
Domjan decided to enter the water without a ladder in
full diving gear, knowing that he was unsure of the depth.
The
jury could reasonably conclude that Domjan did not “exercise that
degree of care for his own safety that a reasonable seaman would
exercise in like circumstances” in light of Domjan’s “own
experience, training, and education.”
(Jury Charges, at 7).
Further, Plaintiff never raised the issue of OSHA Regulation
53 prior to this motion.
The pre-trial order specifically states
that Plaintiff’s fault is a contested issue of law, (PTO, Rec.
Doc. 49, at 7), meanwhile the contested issues of fact and law
say nothing about OSHA regulations.
Plaintiff did not object to
the pattern contributory negligence instruction being given the
to the jury and to the accompanying interrogatory on the verdict
form.
Assuming arguendo that the evidence does establish that
the regulation applied and was violated, Plaintiff is simply too
late in trying to raise this issue post-trial.
Failure to Mitigate/Maintenance Claims.
Plaintiff argues that the Court erred in instructing the
jury as to mitigation regarding maintenance and cure.
Plaintiff
argues that he was entitled to maintenance from the date of his
injury until he reached maximum medical improvement, sometime in
the fall of 2011.
Plaintiff argues that the cutoff date for
maintenance is maximum possible cure, not when the seaman
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recovers sufficiently to return to work.
Divcon contended throughout this litigation that it had
offered Plaintiff a suitable light-duty office job following his
surgery but that Plaintiff had declined the position, thereby
failing to mitigate his damages, and consequently forfeiting his
right to maintenance.1
As the Court recalls, Plaintiff’s
testimony was that he did not necessarily agree that such an
offer had been made.
Nonetheless, the answers to the verdict
form interrogatories pertaining to the maintenance claim
demonstrate that the jury believed that such an offer had been
made.
Because maintenance is owed on a daily basis, and because
the Court rejected Defendant’s position regarding a complete and
retroactive forfeiture of maintenance, see note 1, supra, the
Court added an interrogatory to the verdict form so that the jury
could determine on which date the job offer was made.
This date
was important because, assuming that Plaintiff’s medical
1
During the charge conference Defendant took the position
that the forfeiture of maintenance for failure to mitigate
operated retroactively such that Domjan would forfeit all
maintenance, including what he had rightfully received prior to
any light-duty job offer. The Court rejected Defendant’s
suggestion that the forfeiture for failure to mitigate would
operate retroactively to deprive Domjan of maintenance. Thus,
while the Court agreed with Defendant’s contention that the law
in this circuit does recognize that a seaman can forfeit
maintenance payments for failure to mitigate, the Court remains
convinced that the forfeiture can only be prospective-–for
example, as in this case where a light-duty job offer was made,
where Plaintiff’s condition would not have prevented him from
taking the position, and yet Plaintiff declined for non-medical
reasons.
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condition did not prevent him from taking the job, the earliest
that any penalization for failure to mitigate could apply would
be from the date of the job offer, see note 1, supra.
The jury’s
answer to interrogatory no. 7 was intended to determine the
earliest possible date that the failure to mitigate could apply
but the jury’s answer, “Aug-Sept 2010," indicates that the jury
could not pinpoint the date.
This is not a surprise because
Defendant did not produce any evidence of a specific date because
its position was that the forfeiture was complete as to all
maintenance and cure.
But because Defendant had the burden of
proof as to mitigation yet did not establish the date when the
job offer occurred, the Court calculated the credit for
maintenance accordingly.
(See Rec. Doc. 74 n.1).
Plaintiff is correct of course that maintenance is owed
until the seaman reaches MMI and does not terminate simply
because he becomes medically fit for light duty.
But Plaintiff’s
maintenance payments were not terminated as of October 1, 2010,
simply because he became medically fit for light duty.
Plaintiff’s maintenance payments were forfeited because the jury
made a factual finding that he had been offered a light-duty
position that he could have taken but that he declined without
medical justification.
The law in this circuit allows for the
finding that the jury made.
See Dowdle v. Offshore Express,
Inc., 809 F.2d 259 (5th Cir. 1987); see also Atlantic Sounding v.
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Co. v. Parker, No. 09-6831, 2010 WL 2836130 (E.D. La. July 14,
2010) (applying Dowdle).
The reason that the phrase “medically
fit” is important is because an employer cannot absolve itself of
its maintenance obligation by forcing the seaman back to work to
the detriment of his health.
See Pyles v. Am. Trading & Prod.
Corp., 372 F.2d 611 (5th Cir. 1967).
In this case, there was no
suggestion that Plaintiff’s medical condition precluded him from
taking the light-duty position or that by doing so he would
compromise his ability to recuperate.
Instead, as the Court
recalls, Plaintiff left town for personal reasons.
The motion is DENIED as to the maintenance claim.
Future Lost Wages/Loss of Earning Capacity.
Plaintiff argues that the Court should grant a new trial
because the jury erred by awarding nothing for future lost wages
and loss of earning capacity while awarding $150,000 in general
damages.2
The motion is DENIED as to this issue.
The jury’s general
damage award, which clearly was not intended to apply to future
pain and suffering in light of the $0 award for future economic
loss, was not so low as to warrant a new trial.
Divcon put on sufficient evidence to allow the jury to
2
Plaintiff contends that state law governs the question of
whether the verdict was excessive or inadequate. This is not
correct. State law applies in diversity cases, see Fair v.
Allen, 669 F.3d 601, 604 (5th Cir. 2012), but Plaintiff sued
under the Jones Act. Federal standards therefore govern.
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reject Plaintiff’s claims of future economic loss, such as the
downturn in the dive industry, the attrition rate in the
industry, and testimony that Plaintiff had expressed a desire to
leave diving altogether.
After the accident Plaintiff refused
light duty work with Divcon and left the region because he wanted
to move up north to be near his daughter.
The jury could have
concluded that Plaintiff had intended to pursue other interests.
But perhaps most damning of all was the fact that Plaintiff’s
recurring issues with weight had always kept him from completing
his dive training and had basically “benched” him at the time of
the accident.
Even though Plaintiff had sustained a serious
ankle injury this did not compel the conclusion that he was
totally disabled from all employment.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Judgment As a Matter of
Law or Alternatively for a New Trial (Rec. Doc. 80) filed by
plaintiff Michael Domjan is DENIED.
June 25, 2012
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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