Sharpe et al v. Bertucci Contracting Company LLC
Filing
73
ORDER AND REASONS granting in part and denying in part 32 Motion to Dismiss Defendant's Counterclaim as set forth in document. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHAYLON SHARPE
CIVIL ACTION
VERSUS
NO. 13-6101
BERTUCCI CONTRACTING COMPANY LLC
SECTION "B"(2)
ORDER AND REASONS
Before the Court is Plaintiff’s, Shaylon Sharpe, Motion to
Dismiss Defendant’s counterclaim for failure to state a claim upon
which relief can be granted. (Rec. Doc. 32). Defendant, Bertucci
Contracting Company, has filed a Memorandum in Opposition to
Plaintiff’s Motion to Dismiss. (Rec. Doc. 58).
IT IS ORDERED that Plaintiff’s Motion to Dismiss is GRANTED IN
PART and DENIED IN PART as discussed fully below.
Facts and Cause of Action:
Plaintiff asserts a cause of action under the Jones Act for an
injury sustained to his left shoulder while employed on Defendant’s
barge on or about February 28, 2013. (Rec. Doc. 1 at ¶ 2).
Defendant has asserted a counterclaim against Plaintiff seeking to
recover
reimbursement
for
maintenance
and
cure
paid
to
him
following Plaintiff’s alleged abandonment of the treatment plan
recommended by his physician. (Rec. Doc. 31 at ¶ 11). Defendant
alleges that it initially terminated maintenance and cure payments
on June 2, 2013 but that as of April 17, 2014, it has reinstated
payments and also made back-payments “under protest” relating to
the
period
between
the
initial
termination
and
subsequent
reinstatement. (Rec. Doc. 31 at ¶ 10). According to Defendant, this
reinstatement “under protest” was the result of an arrangement
whereby Plaintiff agreed to dismiss a claim for punitive damages if
Defendant reinstated payments subject to the proviso that any
payments
ultimately
proven
to
relate
to
injuries
caused
by
Plaintiff’s failure to adhere to his treatment plan (rather than
his initial shoulder injury) would be recoverable by Defendant in
reimbursement or offset against damages. (Rec. Doc. 58 at 2).
Plaintiff now moves the Court to dismiss Defendant’s counterclaim
relating to these payments pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief can be granted. (Rec.
Doc. 32).
Contentions of Movant:
Plaintiff argues that Defendant’s counterclaim should be
dismissed
pursuant
to
Fed.
R.
Civ.
P.
12(b)(6)
because
a
counterclaim for recovery of maintenance and cure is precluded by
Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723 (5th Cir.
2013).
Contentions of Respondent:
Defendant opposes Plaintiff’s motion on two bases. First,
Defendant argues that the Fifth Circuit’s opinion in Boudreaux does
not prevent recovery under these facts because Defendant is not
seeking to recover all of the maintenance and cure benefits paid to
Plaintiff but merely those paid upon reinstatement “under protest.”
2
Second, and apparently in the alternative, Defendant contends that
its motion should not be dismissed because it is merely seeking the
right to offset the maintenance and cure paid “under protest”
against any potential damages awarded to Plaintiff under his Jones
Act claim.
Discussion:
In Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723 (5th
Cir. 2013), the Fifth Circuit Court of Appeals reviewed this
Court’s grant of summary judgment on an employer’s counterclaim for
maintenance and cure payments previously made to the plaintiff in
that case. The employer in Boudreaux had successfully established
a defense to liability for maintenance and cure under McCorpen v.
Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968), on the
basis that the plaintiff willfully concealed a material preexisting condition in a manner relevant to his hiring. Resolving
what was, at the time, a res nova issue in the Fifth Circuit, this
Court had concluded that an employer who successfully establishes
a “McCorpen defense” is entitled to restitution from the seaman for
the illegally obtained maintenance and cure payments. Boudreaux v.
Transocean Deepwater, Inc., No. 08-1606, 2011 WL 5025268 (E.D. La.
Oct. 20, 2011). On appeal, however, the Fifth Circuit reversed,
holding “that once a shipowner pays maintenance and cure to the
injured seaman, the payments can be recovered only by offset
against the seaman’s damages award–-not by an independent suit
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seeking affirmative recovery.” 721 F.3d at 727.
In the instant case, Defendant argues that the facts of
Boudreaux are distinguishable because the basis for the employer’s
counterclaim in that case was that none of the maintenance and cure
payments
were
due
to
the
seaman
in
light
of
the
employer’s
successful McCorpen defense. In other words, Defendant argues,
because its claim in this case is not based on a McCorpen defense,
rather
its
entitlement
to
payment
arises
out
of
Plaintiff’s
abandonment of his post-injury treatment plan and pursuant to an
agreement between the parties, the holding of Boudreaux should not
operate to bar its counterclaim.1 It is unclear, however, how this
supposed
distinction
would
affect
the
merits
of
Defendant’s
counterclaim in this instance.
In
Boudreaux,
the
Fifth
Circuit
noted
the
particularly
egregious aspects of the seaman’s concealment of his existing
injuries as well as the difficult tension between the policies of
“protecting seamen from the dangers of the sea, and employers from
dishonesty.” 721 F.3d at 727. Nevertheless, the court declined to
recognize a right of action on behalf of employers for the type of
recovery sought, opining that the ability to conduct investigations
prior to tendering payments as well as the ability to offset
1
Defendant does not explicitly cite legal authority for the proposition
that it would be relieved of the obligation to pay maintenance and cure by
Plaintiff’s abandonment of his treatment plan. Nonetheless, Coulter v. Ingram
Pipeline, Inc., 511 F.2d 735 (5th Cir. 1975), stands for such a proposition,
at least where the claimant willfully rejects recommended medical aid.
4
payments not properly due against future damages awards adequately
protect employers under such circumstances.
Id.
at 728.
Of
particular importance to the court was the recognition that the
policy of protecting seamen is a central concern of admiralty law
as a field. Id. at 727, n. 16 (citing Karim v. Finch Shipping Co.
Ltd., 374 F.3d 302, 310 (5th Cir. 2004)(“The protection of seamen
was one of the principal reasons for the development of admiralty
as a distinct branch of law.”)). There is nothing in the court’s
opinion to suggest that its reasoning would not apply with equal
force outside the context of a McCorpen defense. Indeed, where, as
here,
the
employer
is
not
challenging
the
validity
of
past
maintenance and cure claims ab initio, and there are no allegations
of serious fraud with respect to later payments made, the case for
recognizing a right to bring an independent claim for restitution
appears weaker than it did in Boudreaux. Therefore, Defendant’s
contention that Boudreaux does not operate to bar its claim for
restitution
lacks
merit.
This
would
not,
however,
impede
Defendant’s right to seek offset of the maintenance and cure
payments against any potential damages awarded to Plaintiff, which
right was clearly contemplated by the express language of the
Boudreaux opinion.2
It is important to note that the Boudreaux opinion does not
2
See Boudreaux, 721 F.3d at 727 (“the payments can be recovered only by
offset against the seaman’s damages award”) (emphasis added).
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speak to the procedural aspects of the employer’s ability to offset
past maintenance and cure payments against a seaman’s future
damages award. Whether such entitlement is to be asserted in the
form of an affirmative defense in the defendant’s Answer or by way
of a post-Answer motion is not addressed, although Judge Clement
noted in her concurrence that she would recognize an employer’s
right to “assert a counterclaim for maintenance and cure as a setoff to Jones Act damages.” 721 F.3d at 728 (Clement, J., concurring
in the judgment) (emphasis added). Here, Defendant notes in both
its Counterclaim (Rec. Doc. 31 at ¶ 12) and its opposition to
Plaintiff’s Motion to Dismiss (Rec. Doc. 58 at 4) that it is
seeking either reimbursement of the contested maintenance and cure
payments or set-off from any future award of damages to Plaintiff.
Additionally, Defendant sought from this court, and was granted,
leave to file an Amended Answer and Affirmative Defenses, wherein
it asserted its right to offset maintenance and cure payments
against any damages awarded at trial. (Rec. Doc. 51 at 2). Thus,
regardless of whether a defendant asserting the type of set-off
right at issue here is required to do so in the form of an
affirmative defense or counterclaim, Defendant has adequately
stated its claim.
Accordingly, IT IS ORDERED that Plaintiff’s Motion to Dismiss
is GRANTED IN PART, to the extent that Defendant is asserting an
affirmative and independent claim for reimbursement and DENIED IN
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PART, to the extent that Defendant is merely asserting its right to
offset past maintenance and cure payments against potential future
damages awarded to Plaintiff.
New Orleans, Louisiana, this 4th day of September, 2014.
UNITED STATES DISTRICT JUDGE
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