Barto v. J. Ray McDermott International Vessels, Ltd et al

Filing 49

ORDER & REASONS: denying 41 Motion for Partial Dismissal for Failure to State a Claim for Relief. Signed by Judge Carl Barbier on 5/13/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARK BARTO

CIVIL ACTION

VERSUS

NO: 13-6081

J. RAY MCDERMOTT INTERNATIONAL
VESSELS LTD., ET AL.

SECTION: “J”(3)

ORDER & REASONS
Before
("Shore"),

the
J.

Court

Ray

is

Defendants

McDermott

Shore

International

Construction,
Vessels,

Ltd.,

LLC,
and

McDermott, Inc. (collectively, "Defendants")'s Motion for Partial
Dismissal for Failure to State a Claim for Relief (Rec. Doc. 41),
Plaintiff Mark Barto ("Barto")'s opposition (Rec. Doc. 44), and
Defendants' reply memorandum. (Rec. Doc. 48) The motion was set for
hearing on April 23, 2014, on the briefs. Having considered the
motion and memoranda of counsel, the record, and the applicable
law, the Court finds that the Defendants' motion should be DENIED
for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This matter arises out Barto's maritime personal injury claims
against Defendants. Barto is a Jones Act seaman who allegedly
suffered "injuries when a board he was standing on broke suddenly
1

and without warning, causing Mr. Barto to fall backwards, and
violently strike his head, left elbow and low back." (Rec. Doc. 44,
pps. 1-2). Barto has been receiving maintenance and cure benefits
from Shore throughout his treatment, but when Barto's treating
physician recommended surgical intervention, and when Defendants'
physician disagreed with this recommendation, Shore denied Barto's
request that it pay for the surgery. In his Third Amended Complaint
(Rec. Doc. 35), Barto seeks damages for Defendants' failure "to
authorize and pay for surgery recommended by the plaintiff's
treating physician." (Rec. Doc. 35, p.2, ¶ 16). Shortly after the
Third Amended Complaint was filed, Defendants filed the instant
motion to dismiss.
PARTIES' ARGUMENTS
Defendants argue that Barto's Third Amended Complaint should
be dismissed because plaintiff has not pled any specific acts of
Shore

that

would

constitute

unreasonable,

arbitrary,

and/or

capricious conduct. Defendants aver that punitive and compensatory
damages

for

failure

to

pay

maintenance

and

cure

are

not

automatically awarded when an employer refuses payment, rather the
plaintiff has to prove that the employer engaged in some sort of
conduct that would warrant such an award. Defendants contend that
in Hibbets v. Lexington Insurance Company, 377 Fed. Appx. 352 (5th
Cir. 2010), the Fifth Circuit held that, to satisfy the pleading

2

requirements of Twombly and Iqbal, a plaintiff may not simply plead
the labels of "arbitrary, capricious, or without probable cause,
but rather must include additional factual allegations to support
such labels. Hibbets, 377 Fed. Appx. at 356.
Barto contends that he has fully satisfied notice pleading
requirements because his allegations place the defendant on notice
of what the claim is, the grounds on which his claim rests, and the
relief that he seeks. Barto points out that Defendants cite to
cases applying the summary judgment standard rather than the
12(b)(6) standard, thus the cited cases are distinguishable from
the instant set of facts.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The
complaint must “give the defendant fair notice of what the claim is
and the grounds upon which it rests.” Dura Pharm., Inc. v. Broudo,
544 U.S. 336, 346 (2005). The allegations “must be simple, concise,
and direct.”

FED. R. CIV. P. 8(d)(1).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547

3

(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. A court
must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not,
however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
DISCUSSION
Plaintiff's Third Amended Complaint alleges that Shore "has
unreasonably, arbitrarily and capriciously refused to authorize and
pay for surgery recommended by the plaintiff's treating physician,
which has resulted in foreseeable and avoidable economic hardship
and exacerbation of plaintiff's physical and emotional injuries"
and that in light of this denial, Defendant "has failed to fully
satisfy its cure obligation to the plaintiff, and, as a result,
plaintiff is entitled to recover from Shore Construction the
reasonable

and

necessary

medical

expenses

for

his

medical

treatment."(Rec. Doc. 35, pps. 1-2, ¶¶ 15-16) Given the non-complex
nature of this case, Barto's allegations satisfy notice pleading
requirements. From the above-cited allegations, Defendants should
be aware of what the claim is (breach of the duty to provide full

4

maintenance and cure), the grounds upon which the claims rest
(failure to pay for the surgery recommended by Barto's physician),
and the relief sought (compensatory and punitive damages).
Defendants' citations to many cases that apply standards other
than the Rule 12(b)(6) standard are unhelpful to the Court as
Plaintiff is not required to plead every element of its claim or
prove that he will succeed on his claim. See Whitworth v. Mouser
Electronics, Inc., No. 10-1134, 2010 WL 4628068 *2 (N.D. Tex., Nov.
8, 2010).

Further, this case is not analogous to Hibbets, an

insurance case, because more facts were needed in that case to be
able to reasonably infer what "bad faith" the plaintiffs alleged.
There, plaintiffs only alleged the following:
[Defendant] has breached and continued to breach its
duties of good faith and fair dealing, as well as its
duty to fairly adjust claims;” that “Defendant has
breached and continues to breach its duty to timely
adjust claims upon satisfactory proof of loss from
individual Plaintiff Class members, evidencing losses
from covered perils” and “misrepresented pertinent policy
provisions;” and that these actions “are arbitrary,
capricious, and unsupported by any evidence” and
“constitute bad faith.”
Hibbets v. Lexington Ins. Co., 377 F. App'x 352, 355-56 (5th Cir.
2010). More factual context was necessary in that case because the
case was more complex and involved long-running and ongoing actions
with multiple plaintiffs. As is clear from reading the allegations,
it would be impossible for the defendant insurance company to
devine what specific actions the plaintiffs complained of. To the
5

contrary, in this case, the facts are much more straightforward,
and, even without further factual allegations, it is reasonable to
infer from the pleadings that Plaintiff alleges that the decision
to deny payment for the surgery at issue was made in bad faith.
There is simply no other way to read the Third Amended Complaint,
and the ease in which one can make such an inference is supported
by the fact that Defendants have already made such an inference and
clearly explained the nature of the dispute in the instant motion
to dismiss. Rec. Doc. 41-1, p. 2 ("A dispute has arisen concerning
Shore Construction's obligation to pay for surgery recommended by
Dr. Ilyas Munshi pursuant to its obligation to provide cure to
plaintiff."). Therefore, the Defendant is clearly on notice of the
claims against it, making dismissal unwarranted.
Accordingly,
IT IS ORDERED that Defendants' Motion for Partial Dismissal
for Failure to State a Claim for Relief (Rec. Doc. 41) is DENIED.
New Orleans, Louisiana, this 13th day of May, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

6