Kaminaga v. Bisso Marine Co., Inc.

Filing 17

ORDER AND REASONS granting 13 Motion for Partial Summary Judgment. Signed by Chief Judge Sarah S. Vance on 12/30/2013. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BENJUA KAMINAGA

CIVIL ACTION

VERSUS

NO: 13-616

BISSO MARINE CO., INC.

SECTION: R(4)

ORDER AND REASONS
Defendant Bisso Marine Co., Inc. ("Bisso Marine") moves for
partial summary judgment.1 The plaintiff does not oppose the
motion.2 For the following reasons, the Court GRANTS the
defendant's motion.

I.

Background
Plaintiff Benjua Kaminaga brought suit against Bisso Marine

under the Jones Act and general maritime law.3 He alleges that he
was employed by Bisso Marine as a seaman onboard the L/B MIGHTY
CHIEF when an explosion on deck engulfed him in flames.4 He
alleges that he suffered both physical and psychological injuries

1

R. Doc. 13.

2

R. Doc. 15.

3

R. Doc. 1.

4

Id. at 2.

and seeks judgment against Bisso Marine for maintenance and
cure.5
Bisso Marine filed a motion for partial summary judgment,
seeking dismissal of Kaminaga's maintenance and cure claim for
post-traumatic stress disorder ("PTSD").6 Although Kaminaga does
not explicitly allege PTSD as one of the injuries for which he
seeks maintenance and cure, medical records indicate that he has
been diagnosed with PTSD since the explosion.7 Kaminaga has filed
a notice of no opposition to Bisso Marine's motion for partial
summary judgment.8

II.

Summary Judgment Standard
Summary judgment is warranted when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers "all of the evidence in the record but
refrains from making credibility determinations or weighing the

5

Id. at 2-3, 5.

6

R. Doc. 13.

7

R. Doc. 14-3 at 1, 4.

8

R. Doc. 15.
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evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398-399 (5th Cir. 2008). The Court must draw
reasonable inferences in favor of the nonmoving party, but
"unsupported allegations or affidavits setting forth ultimate or
conclusory facts and conclusions of law are insufficient to
either support or defeat a motion for summary judgment." Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)
(quotation marks removed).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party "must
come forward with evidence that would entitle it to a directed
verdict if the evidence went uncontroverted at trial." Int'l
Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th
Cir. 1991) (quotation marks removed). The nonmoving party can
then defeat the motion by either countering with sufficient
evidence of its own, or "showing that the moving party's evidence
is so sheer that it may not persuade the reasonable fact-finder
to return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by

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submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324.
The nonmovant may not rest upon the pleadings but must
identify specific facts that establish a genuine issue for trial.
Id.; see also Little, 37 F.3d at 1075 ("Rule 56 'mandates the
entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.'") (quoting Celotex, 477 U.S. at 322).

III. Discussion
Seamen have a right to maintenance and cure for injuries
suffered in the course of their employment, regardless of whether
the employer was at fault. See Boudreaux v. Transocean Deepwater,
Inc., 721 F.3d 723, 725 (5th Cir. 2013). "Maintenance may be
awarded by courts even where the seaman has suffered from an
illness pre-existing his employment, but there is a general
principle that it will be denied where he knowingly or
fraudulently conceals his illness from the shipowner." McCorpen
v. Cent. Gulf S. S. Corp., 396 F.2d 547, 548 (5th Cir. 1968).
When the shipowner "requires a seaman to submit to a pre-hiring
medical examination or interview and the seaman intentionally
misrepresents or conceals material medical facts . . . he is not
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entitled to an award of maintenance and cure." Id. at 549. To
rely on this defense, known as the McCorpen defense, an employer
must establish that (1) the seaman intentionally misrepresented
or concealed medical facts, (2) the misrepresented or concealed
facts were material to the employer's hiring decision, and (3)
there is a causal link between the pre-existing disability that
was concealed and the injury now incurred. Id.; see also
Boudreaux, 721 F.3d at 726. Here, the Court finds that Bisso
Marine has established each element of its defense under
McCorpen.
Bisso Marine has submitted evidence indicating that Kaminaga
suffered from PTSD prior to his employment with Bisso Marine,9
that Bisso Marine required Kaminaga to submit to a medical
examination and interview prior to hiring him,10 that Kaminaga
concealed his history of mental illness from the medical
examiner,11 that the concealed information was material to Bisso
Marine's hiring decision,12 and that the PTSD Kaminaga incurred
after the explosion is related to his pre-existing PTSD.13
Kaminaga does not dispute any of this evidence. Accordingly, the

9

R. Doc. 14-3 at 3.

10

R. Doc. 13-8 at 1.

11

Id. at 1-2; R. Doc. 14-7.

12

R. Doc. 13-8 at 2.

13

R. Doc. 14-3 at 4.
5

Court finds that Kaminaga intentionally concealed his history of
PTSD, that the concealed information was material to Bisso
Marine's hiring decision, and that there is a causal link between
Kaminaga's pre-existing PTSD and the PTSD he incurred after the
explosion. To the extent Kaminaga seeks maintenance and cure for
his PTSD, the Court concludes that Bisso Marine is entitled to
summary judgment on this claim.

IV.

Conclusion
For the foregoing reasons, Bisso Marine's motion for partial

summary judgment is GRANTED.

30th
New Orleans, Louisiana, this ______ day of December, 2013.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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