Witty v. Sea Support Services L.L.C. et al

Filing 13

ORDER AND REASONS granting 8 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IBCEN WITTY

CIVIL ACTION

VERSUS

NO. 15-114

SEA SUPPORT SERVICES, LLC,
AND SEA SUPPORT VENTURES, LLC

SECTION "B"(4)

ORDER AND REASONS
I.

NATURE OF THE MOTION AND RELIEF SOUGHT
Before the Court is Defendants’, Sea Support Services, LLC

and

Sea

Support

Ventures,

LLC,

Motion

for

Partial

Summary

Judgment.1 Plaintiff has filed an opposition.2 Defendants have
filed a reply.3 The motion, set for submission on March 11, 2015,
is before the Court without oral argument. Accordingly, and for
the reasons enumerated below,
IT IS ORDERED that the Motion for Partial Summary Judgment
(Rec. Doc. No. 8) is GRANTED and that Plaintiff’s claim for
punitive damages and attorney’s fees associated with an alleged
failure to pay maintenance and cure is DISMISSED.
II.

FACTS AND PROCEDURAL HISTORY
This action arises under 46 U.S.C. § 688, the Jones Act,

and

the

General

Maritime

Laws.4

On

or

about

June

27,

2014,

1

Rec. Doc. No. 8.
Rec. Doc. No. 9.
3
Rec. Doc. No. 12.
4
Rec. Doc. No. 1 at 1.
2

1

Plaintiff
Seaman

Ibcen

by

Witty

Defendant

(“Witty”)

Sea

was

Support

employed

Services

as

an

and/or

Sea

Ordinary
Support

Ventures (“Sea Support”) and was assigned to the M/V MISS GINGER
(“vessel”).5
On

or

about

June

27,

2014,

as

Witty

was

attempting

to

descend a set of stairs aboard the vessel, as the vessel was
underway in the Gulf of Mexico off the Coast of Louisiana, he
slipped and fell falling down the length of the stairway.6 As a
result, Witty sustained injury to his body, including but not
limited to, his left shoulder and low back.7
Witty

contends

the

incident

and

resulting

injuries

were

caused by the negligence of Sea Support, in failing to provide a
safe

place

negligence,
cure,

as

damages

to

work.8

Witty

well

as

In

claims
a

associated

addition

bringing

unseaworthiness

claim
with

to

for
the

and

attorneys’
alleged

a

claim

for

maintenance

and

fees

and

punitive

failure

to

provide

maintenance and cure.9
Sea Support moves the Court for partial summary judgment on
the claim for attorneys’ fees and punitive damages, contending
that Defendants or their representatives have paid all medical
5

Rec. Doc. No. 1 at 1.
Rec. Doc. No. 1 at 2.
7
Rec. Doc. No. 1 at 2.
8
Rec. Doc. No. 1 at 2.
9
Rec. Doc. No. 1 at 2.
6

2

expenses submitted to them, and have paid Witty either full
wages or maintenance since the date of the alleged injury.10

III.

LAW AND ANALYSIS
A. Summary Judgment Standard of Review
Summary

judgment

is

appropriate

only

if

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits show that there is no genuine issue
as to any material fact and the movant is entitled to judgment
as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 749 (5th
Cir. 2002). The proponent of the motion bears the burden of
showing a lack of evidence to support his opponent’s case. Fed.
R. Civ. P. 56(c); Stauffer v. Gearhart, 741 F.3d 574, 582 (5th
Cir. 2014).
A

genuine

dispute

of

material

fact

exists

when

the

“evidence is such that a reasonable jury could return a verdict
for

the

L.L.C.,
“defeat

nonmoving
736

F.3d

summary

party.”
396,

400

judgment

Royal
(5th

v.

CCC

Cir.

with

&

R.

2013).

A

conclusory

Tres

Arboles,

party

cannot

allegations,

unsubstantial assertions, or ‘only a scintilla of evidence.’”

10

Rec. Doc. No. 8-1 at 1.

3

Celtic Marine Corp. v. James C. Justice Companies, Inc., 760
F.3d 477, 481 (5th Cir. 2014); TIG Ins. Co., 276 F.3d at 759.
B. The Court’s Analysis
Maintenance is a duty imposed upon a shipowner to provide
for a seaman who becomes injured during his service to the ship.
Silmon v. Can Do. II, Inc., 89 F.3d 240, 242 (5th Cir. 1996).
Maintenance

is

a

subsidence

allowance

intended

to

cover

the

reasonable costs a seaman incurs for his food and lodging during
the period of his injury. See Guevara v. Mar. Overseas Corp., 59
F.3d 1496, 1499 (5th Cir. 1995), abrogated on other grounds,
Atl. Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009). Cure
is an employer’s obligation to pay for the medical care of the
sick

or

injured

seaman.

Id.

at

1499;

Thomas

J.

Schoenbaum,

Admiralty and Maritime Law, § 6-32, at 361 (2d ed. 1994).
“The

right

terminates

only

when

maximum

cure

has

been

obtained.” Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1012
(5th

Cir.

1985).

indifference
seaman’s

to,

If

the

or

willful

injuries,

it

is

employer
and

liable

has

shown

wanton
for

callousness

disregard

punitive

and

for,

the

damages

and

attorney’s fees. Id.; see also Atl. Sounding, 129 S.Ct. at 2575.
In order to support an award of punitive damages under general
maritime law, “mere inadvertence or even gross negligence will
not suffice to support an award of punitive damages. The tort

4

must be aggravated by evil motive, actual malice, deliberate
violence or oppression.” Smith v. Piedmont Aviation, Inc., 568
F.2d 290, 292 (5th Cir. 1978).
As

Witty

will

have

the

burden

of

proof

regarding

his

entitlement to maintenance and cure at the trial of this matter,
he also bears the burden of proof at the summary judgment stage
of these proceedings. Joubert v. C&C Technologies, Inc., Civ.
Action No. 6:04CV0723, 2005 WL 1830996, at *2 (W.D. La. 2005);
Freeman v. Thunder Bay Transp. Co., Inc., 735 F.Supp. 680, 681
(M.D. La. 1990).
To recover maintenance and cure at the summary judgment
stage of proceedings, Witty must show that no genuine issue of
material fact exists with respect to the following factors: (a)
his

engagement

as

a

seaman;

(b)

his

illness

or

injury

that

occurred while in the ship’s service; (c) the wages to which he
may be entitled; and (d) the expenditures or liability incurred
for medicines, nursing care, board and lodging. Joubert, 2005 WL
1830996, at *2; see M. Norris, The Law of Seaman § 26.21 (4th
ed. 1985).
Defendants contend as follows: first, Witty was paid full
wages for the period June 27, 2014 (the date of the injury) to

5

July 2, 2014;11 second, Witty was paid maintenance from July 3,
2014, at a rate of $35.00 per day;12

third, all medical bills

submitted by a provider or by Witty for medical expenses have
been paid.13 Further, shortly after the incident was reported,
Sea

Support

and

its

insurers

deposited

funds

in

the

escrow

account of independent adjuster, E.J. Halverson & Associates,14
as

evidenced

by

a

ledger

of

disbursements

from

the

escrow

account, which shows the payments made to or on behalf of Witty
for maintenance and cure expenses since July 3, 2014.15
Plaintiff

implicitly

acknowledges

the

forgoing;

however,

opposes the motion on the basis that the claim (as stated in the
complaint) has been averred “in the event that defendants...are
found to have unreasonably, arbitrarily, willfully and wantonly
refused to pay or discontinued maintenance and cure benefits.”16
The Court concludes that Defendants have established that
no genuine issues of fact exist relative to whether Defendants
have failed to pay maintenance and cure. At the summary judgment
stage, Witty can neither establish any wages to which he may be
entitled, nor can he establish any unpaid medical expenditures
11

Rec. Doc. No. 8-2, Exhibit 3, evidencing payments totaling $3400 for the period of June 16, 2014 – July 2, 2014, at
Witty’s daily rate of $200 per day.
12
Rec. Doc. No. 8-1 at 3; Affidavit of Thomas J. Halverson, Exhibit 2.
13
Rec. Doc. No. 8-1 at 3; Affidavit of Thomas J. Halverson, Exhibit 2.
14
Rec. Doc. No. 8-1 at 2.
15
Rec. Doc. No. 8-1 at 3; Exhibit 1. There appears to be a typo in the motion; the Court reads the date of initial
payment as July 3, 2014, which is the date consistently referred to throughout the motion.
16
Rec. Doc. No. 9 at 1-2.

6

or liabilities incurred for medical care. It follows that Witty
cannot establish that Sea Support has callously or willfully
disregarded
punitive

the

damages

alleged
and

injuries,

attorney’s

as

required

fees.

Thus,

to

recover

partial

summary

judgment in favor of Defendants is appropriate, and Plaintiff’s
claim for punitive damages and attorney’s fees associated with
the

alleged

arbitrary

and

capricious

failure

to

provide

maintenance and cure is DISMISSED.
To the extent Plaintiff opposes the dismissal on the basis
that maintenance and cure may be discontinued at some point in
the future, the Fifth Circuit Court of Appeals has explained
that, pursuant to the “cases and controversies” limit set forth
in

Article

controversy,
presently

be

conjectural,

III
to

of
be

the

United

justiciable,

litigated
conditional

and
or

States
must

decided
based

upon

Constitution,

be

such

and

not

the

factual situation that may never develop.”

that

it

“[a]
can

hypothetical,

possibility

of

a

Rowan Cos., Inc. v.

Griffin, 876 F.2d 26, 28 (5th Cir. 1989)(quoting Brown v. Root,
Inc. v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir. 1967)).
Plaintiff presents no facts or arguments that would otherwise
convince the Court that discontinuation is imminent, such that
Plaintiff has standing to bring a claim ripe for litigation.

7

Should

the

facts

and

circumstances

change,

Plaintiff

should

properly move to amend pursuant to Fed. R. Civ. P. 15.
IV.

CONCLUSION
Accordingly, and for the reasons enumerated above,
IT IS ORDERED that the Motion for Partial Summary Judgment

(Rec. Doc. No. 8) is GRANTED and that Plaintiff’s claim for
punitive damages and attorney’s fees associated with an alleged
failure to pay maintenance and cure is DISMISSED.

New Orleans, Louisiana, this 6th day of March, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

8