Rinehart v. National Oilwell Varco L.P., et al
Filing
73
ORDER AND REASONS that Defendant Starfleet's 65 Motion for Partial Summary Judgment is DENIED. Signed by Judge Eldon E. Fallon on 12/14/2016. (cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONALD RINEHART, JR.
*
*
vs.
*
*
NATIONAL OILWELL VARCO L.P., ET AL. *
CIVIL ACTION
NO. 15-6266
SECTION: L
ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment filed by Defendant Starfleet
Marine Transportation, Inc. (R. Doc. 65). Having considered the parties briefs and applicable law
and having considered the arguments made before the Court on December 14, 2016, the Court
now issues this Order and Reasons.
I.
BACKGROUND
This case arises out of injuries allegedly sustained by Plaintiff Donald Rinehart
(“Rinehart”) on August 21, 2014 while he was employed as a Jones Act seaman in his capacity
as an engineer aboard the M/V Starfleet Viking, a vessel operated by the bareboat charterer
Defendant Starfleet Marine Transportation, Inc. (“Starfleet”). (R. Doc. 1 at 1-2). Plaintiff
invokes jurisdiction of this Court under 28 U.S.C. § 1332. Id. at 2.
Plaintiff alleges that he was ordered by the M/V Starfleet Viking’s captain to assist with
loading pallets aboard the ship, which was docked in Port Fourchon, Louisiana. Id. at 2.
Defendant National Oilwell Varco, L.P. (“NOV”) owned the mobile crane and hook which were
used in loading the pallets and also employed the crane operator directing the crane. Id. at 2.
Plaintiff claims that he was injured when a pallet fork slipped from Defendant NOV’s crane’s
hook onto the back of his head while loading pallets onto the vessel’s deck. Id. at 2. Plaintiff
states that he was flown by helicopter to the Thibodaux Medical Center for emergency medical
treatment and has since suffered multiple complex surgical procedures with permanent scarring;
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severe headaches with substantial neurological deficits, including memory loss and a severelydiminished reading ability; and the inability to swallow normal food, so that he must eat through
a feeding tube which has been surgically-implanted into his stomach. Id. at 3. Plaintiff filed suit
under the Jones Act and General Maritime law, requesting a jury trial and seeking recovery for
the damages he sustained.
Starfleet answers, admits that it owned the M/V Starfleet Viking, and asserts a number of
defenses, including that Plaintiff’s injuries were caused by his own negligence or by third parties,
that his claims are prescribed, and that Starfleet is entitled to limited liability pursuant to 46
U.S.C. § 30501. (R. Doc. 13). NOV answers and asserts a number of defenses, including that
Plaintiff’s injuries were caused by his own negligence or by third parties, that Plaintiff failed to
mitigate his damages, and that his claims are barred by prescription or by either the Longshore
and Harbor Workers’ Compensation Act, 33 U.S.C. §901, et seq., or the provisions of the
Louisiana Workers’ Compensation Act, LSA R.S. 23:1021, et seq. (Rec. Doc. 15).
II.
PRESENT MOTION
Starfleet filed this Motion for Partial Summary Judgment on the Maintenance and Cure
claim. (R. Doc. 65). Plaintiff opposes the Motion. (R. Doc. 67). With leave of the Court, Starfleet
filed a reply. (R. Doc. 70).
A. Starfleet’s Motion
Starfleet seeks partial summary judgment arguing that because Plaintiff failed to disclose
a preexisting condition, providing Starfleet with a conclusive defense under McCorpen v.
Central Gulf S.S. Corp. (R. Doc. 65-1 at 1); 369 F. 2d 547 (5th Cir. 1968). Starfleet details
Plaintiff’s preexisting lumbar condition and his failure to seek necessary treatment, and argue
that had Plaintiff disclosed his lumbar condition Starfleet would not have hired him. Id. Starfleet
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paid for Plaintiff’s two-level lumbar laminectomy and fusion at L4-S1 under its maintenance and
cure obligation, but avers that because Plaintiff has a preexisting condition, the Court should
dismiss Plaintiff’s maintenance and cure claims related to his lumbar spine, should find Starfleet
is relieved of its duty to pay maintenance and cure for injuries or treatment related to Plaintiff’s
lumbar spine, and that Starfleet is entitled to a reimbursement and/or credit for the amounts
already paid under maintenance and cure for injuries and treatment related to Plaintiff’s lumbar
spine. Id. at 1-2.
Starfleet has paid Plaintiff’s maintenance and cure since the accident in 2014, including
$40/day of maintenance totaling $27,280 and $406,154.56 in cure. Id. at 12. Starfleet avers that
because Plaintiff reached MMI for his cervical spine injury on June 6, 2016, any further
maintenance payments were solely for Plaintiff’s preexisting lumbar injury. Id. Accordingly,
Starfleet seeks reimbursement and/or credit for the payments made after June 6, 2016. Id.
Further, Starfleet seeks a reimbursement or credit for its cure payments related to Plaintiff’s
lumbar injury. Id.
Because Plaintiff concealed his medical condition, Starfleet avers they are entitled to a
credit and/or reimbursement for all payments made related to his lumbar injury. Id. at 13;
McCorpen, 369 F.2d at 548 (employer relieved of its obligation to pay maintenance and cure
when plaintiff “knowingly or fraudulently conceals his [pre-existing] illness from the
shipowner.”) Brown v. Parker Drilling Offshore, Corp., 410 F.3d 166 (5th Cir. 2005). Under
McCorpen, an employer is relieved from its duty to pay maintenance and cure if they can prove
(1) Plaintiff knowingly concealed or intentionally misrepresents a medical condition; (2) the
medical condition was material to the employer’s decision to hire the Plaintiff; (3) there is a
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causal link between the pre-existing condition and the injury at issue. McCorpen, 369 F.2d at
549.
Starfleet argues that this case meets all three McCorpen prongs. First, Plaintiff knowingly
or intentionally concealed his preexisting condition when he “failed to disclose medical
information in an interview or questionnaire that is obviously designed to elicit such
information.” Meche v. Doucet, 777 F.3d 237, 247 (5th Cir. 2015). Meche holds that if a Plaintiff
intentionally provided false information on a pre-employment medical questionnaire and
certified its truthfulness, they cannot argue the concealment was unintentional. Id. at 248.
According to Starfleet, Plaintiff intentionally withheld his preexisting condition on his preemployment medical questionnaires and physical examination. Second, the medical condition
was material to Starfleet because it specifically asked about prior back injuries in its preemployment interviews and questionnaires because of the physically-demanding nature of the
job. (R. Doc. 65-1 at 15); Brown, 410 F.3d at 175. If Plaintiff would have disclosed his prior
condition, Starfleet avers they would not have hired him. Id. Finally, the preexisting injury and
the current injury in question are both to the lumbar region, which satisfied the third McCorpen
prong. See, e.g., Brown, 410 F.3d at 176; Weatherford v. Nabors Offshore Corp., No. 03-0478,
2004 WL 414948 at *3 (E.D. La. Mar. 3, 2004). Further, thought he Fifth Circuit doesn’t require
the injuries to be identical to satisfy the third prong, in this case they are. (R. Doc. 65-1 at 17).
Starfleet avers that because they establish a McCorpen defense, they are not obligated to
pay maintenance and cure and the payments already paid can be recovered by an offset against
the Plaintiff’s damages award. Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723, 728
(5th Cir. 2013).
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B. Plaintiff’s Opposition
Plaintiff opposes Starfleet’s Motion, arguing that Starfleet does not merit summary
judgment on maintenance and cure claims because maintenance and cure is an unpled claim. (R.
Doc. 67-1 at 1). Further, Plaintiff points out that Starfleet does not make a counterclaim for
maintenance and cure. Id. Because nobody has pled claims for maintenance and cure, Plaintiff
avers Starfleet cannot seek summary judgment on that issue. Id. at 2.
First, Plaintiff avers this Court lacks subject matter jurisdiction because maintenance and
cure is an unpled claim, and therefore Starfleet essentially seeks an advisory opinion. Id. at 2-3.
Second, Plaintiff argues that Rule 56 does not authorize summary judgment on unpled claims. Id.
at 2. Third, Plaintiff contends that finding summary judgment in Starfleet’s favor would violate
Plaintiff’s due process under the Fourteenth Amendment. Id. In essence, Plaintiff argues that
Starfleet is seeking to avoid pleading a counterclaim for declaratory judgment by filing the
instant motion. Id. at 4. Allowing this motion to go forward would preclude Plaintiff from
serving an answer to the counterclaim, addressing the sufficiency of the counterclaim through a
12(b) motion, asserting affirmative defenses, and engaging in relevant discovery. Id.
C. Starfleet’s Reply
Starfleet responds to Plaintiff’s opposition, arguing that Plaintiff includes claims for past
and future medical expenses in his complaint, and therefore by definition includes a claim for
maintenance and cure. (R. Doc. 70 at 1). Further, because Plaintiff failed to include a list of
contested facts in his opposition, he procedurally admits that no issue of material fact exists
under Local Rule 56.2 and Starfleet’s motion should therefore be granted. Id.; Belala v. Coastal
Towing Co., No. CIV.A 01-3137, 2002 WL 31729491 at *1 (E.D. La. Dec. 3, 2002)(Fallon, J.).
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III.
LAW AND ANALYSIS
A. Summary Judgment Standard
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c)); 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 evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398 (5th Cir. 2008).
Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial burden of
“informing the district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 322. When the moving party has met its Rule 56(c) burden, “[t]he non-movant
cannot avoid summary judgment . . . by merely making ‘conclusory allegations’ or
‘unsubstantiated assertions.’” Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir.
2002) (quoting Little, 37 F.3d at 1075). “The mere existence of a scintilla of evidence in support
of the plaintiff’s position will be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986). All
reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat
summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable jury could not return a verdict for
the nonmoving party.” Delta, 530 F.3d at 399.
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B. Discussion
This Court finds that Starfleet seeks summary judgment on an unpled claim and therefore
seeks an inappropriate advisory opinion on the topic of maintenance and cure. (R. Doc. 1); Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Because maintenance and cure is
an unpled claim, this Court lacks subject matter jurisdiction over the issue at this time. Kokkonen
v. Guardian Life Insurance Co. of America, 511 U.S. 375, 377 (1994).
Although Plaintiff did not plead maintenance and cure in his complaint, Starfleet may
bring its own claim for declaratory judgment regarding its duty to pay maintenance and cure.
See, e.g., Rowan Companies, Inc. v. Griffin, 876 F.2d 26, 27-30 (5th Cir. 1989). Starfleet has not
done so here. Further, the McCorpen defense does not allow for a reimbursement of previouslypaid maintenance and cure. As the Fifth Circuit held in Boudreaux v. Transocean Deepwater,
Inc., “[Defendant’s] novel attempt to extend the [McCorpen] defense into an affirmative right of
recovery finds virtually no support, and we are not inclined to accede.” 721 F.3d 723, 727 (5th
Cir. 2013). As it is well-settled that a Plaintiff may not recover twice for the same injury,
Defendant may be entitled to a credit for the amount already paid under their maintenance and
cure obligation. Id. at 727. However, that issue is not yet ripe and is inappropriate for summary
judgment. Accordingly, because neither Plaintiff nor Defendant has introduced the issue of
maintenance and cure into the case, this Court cannot rule on the issue, and Defendant’s motion
is denied.
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IV.
CONCLUSION
For the reasons more fully stated above, it is ordered that Defendant Starfleet’s Motion
for Partial Summary Judgment (R. Doc. 65) is DENIED.
New Orleans, Louisiana, this 14th day of December, 2016.
UNITED STATES DISTRICT JUDGE
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