Bergeron v. Zurich American Insurance Company et al

Filing 18

ORDER and REASONS denying 8 Motion to Sever Maintenance and Cure Cause of Action, as stated within document. Signed by Judge Kurt D. Engelhardt on 6/22/2015. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDWARD J. BERGERON

CIVIL ACTION

VERSUS

NO. 15-38

ZURICH AMERICAN INSURANCE COMPANY
and MASSMAN CONSTRUCTION COMPANY

SECTION “N” (2)

ORDER AND REASONS
Before the Court is Plaintiff’s “Motion to Sever Maintenance and Cure Cause of Action”
(Rec. Doc. 8). For the reasons stated herein, IT IS ORDERED that Plaintiff’s motion is DENIED.
LAW AND ANALYSIS
When evaluating a plaintiff’s request for severance, and expedited trial, of maintenance and
cure claims, courts consider the following factors: (1) the plaintiff’s interest in an expedited trial of
the maintenance and cure issue; (2) the proximity of the scheduled trial date; (3) whether the
plaintiff requested a jury trial; and (4) whether the non-moving party opposes the motion. See, e.g.,
Cooper v. Nabors Offshore, Inc., No. 03-0344, 2003 WL 22174237, at *1 (E.D. La. Sept. 9, 2003)
(Vance, J.). Despite Defendant’s opposition, Plaintiff argues that these factors “weigh heavily” in
favor of his motion. Specifically, regarding the first factor, Plaintiff maintains that he is “under
extreme financial hardship”and requires surgery for which Defendant thus far has refused to pay.
He also contends that severance is generally allowed when, as here, the scheduled trial date is six
months away.1

1

Trial in this matter is set to commence on November 9, 2015. Plaintiff filed his
motion to sever on May 5, 2015.
1

Disagreeing with Plaintiff’s position, Massman Construction Co. (“Defendant”) cites Cooper
to rebut Plaintiff’s claim that “extreme financial hardship” warrants severance.2 Defendant
additionally argues that, in any event, Plaintiff is not under extreme financial hardship because he
has received $18,570.00 in workers’ compensation benefits and refused Defendant’s offer of light
duty work (at full pay). With respect to Plaintiff’s surgery request, Defendant emphasizes that
Plaintiff failed to attend a scheduled independent medical examination intended to provide an
independent evaluation of the alleged need for surgery. Defendant further claims that an earlier trial
of the maintenance and cure claim would not take place within any appreciable time difference
because the current trial date is only six months away3 and discovery will take a few months to
complete.
After carefully reviewing the information provided by the parties, the Court finds severance
of Plaintiff’s maintenance and care claim inappropriate. Plaintiff’s primary argument for severance
is that he is under extreme financial hardship due to Defendant’s termination of his benefits. As
urged by Defendant, however, financial hardship generally does not warrant severance and
expedited trial of maintenance and cure claims.4 See, e.g., Cooper, 2003 WL 22174237, at *1;
Grunderstrom v. 4-J’s Enter., No. 03-2657, 2004 WL 551207, at *1 (E.D. La. Mar. 18, 2004)
2

In Cooper, the plaintiff argued that he had an interest in an expedited trial because
he was experiencing financial hardship as a result of his injuries. The court, however,
denied the requested severance. Cooper, 2003 WL 22174237, at *1.

3

At the time Defendant filed its opposition on May 14, 2015, trial was six months
away. Now, less than five months remain.

4

Courts in this district generally deny severance of maintenance and cure claims, even
in instances where a plaintiff’s proffered interests in an expedited trial extend beyond
the financial. See, e.g., Marine Drilling Mgmt. Co. v. Scott, No. 02-1967, 2003 WL
133218 (E.D. La. Jan. 15, 2003) (Engelhardt, J.); Hampton v. Daybrook Fisheries,
Inc., No. 01-1913, 2002 WL 1974107 (E.D. La. Aug. 27, 2002) (Vance, J.);
Charpentier v. Blue Streak Offshore, Inc., No. 96-323, 1996 WL 383126 (E.D. La.
July 3, 1996) (Schwartz, J.)
2

(Vance, J.) (denying motion to sever premised upon the plaintiff’s inability to afford surgery).
Furthermore, the November 9, 2015 trial date is now less than five months away and the deadline
for discovery, which presumably is ongoing, is not until August.5 As such, even if expedited, a
separate trial of Plaintiff’s maintenance and cure claim likely would be held only a month or two
before the currently set date for trial of all issues. On the showing made, it is not apparent to the
Court that such limited relief would materially impact the outcome of Plaintiff’s surgery or his
overall financial situation.6 Finally, because Defendant has requested a jury trial, granting Plaintiff’s
severance request would necessitate two separate trial proceedings. Considering that a significant
amount of the parties’ evidence likely relates to all of Plaintiff’s claims, and therefore would be
reiterated at the second proceeding, judicial economy and efficiency weigh in favor of having a
single trial (on November 9, 2015) of all the issues.

5

Courts in this district generally do not grant motions to sever maintenance and cure
claims within six months of trial. See, e.g., Grundstrom, 2004 WL 551207 at *1
(motion to sever within six months of trial denied); Morgan v. Chet Morrison
Contractors, Inc., No. 04-2766, 2008 WL 4758629 (E.D. La. Oct. 8, 2008) (Duval,
J.) (motion to sever within eight months of trial denied).

6

The Grundstrom court stated, “[P]laintiff’s accident occurred over two years ago….
The additional delay is not likely to materially change the outcome of any surgery.”
2004 WL 551207 at *2. Similarly, Plaintiff’s injury occurred over one year ago and
he already has received some medical treatment.
3

Given the foregoing, the Court finds that Plaintiff has not demonstrated that severance and
expedited trial of his maintenance and cure claim are warranted. Therefore, IT IS ORDERED that
Plaintiff’s motion is DENIED.7
New Orleans, Louisiana, this 22nd day June 2015.

KURT D. ENGELHARDT
United States District Judge

7

Defendant alternatively claims that Plaintiff failed to mitigate his damages and thus
forfeited his right to maintenance payments. The Court finds those issues more
appropriately addressed at trial, or by a properly supported dispositive motion, and
thus declines to resolve these issues as part of the instant procedural motion.
4