Fairley v. Art Catering Inc et al

Filing 43

ORDER AND REASONS: IT IS ORDERED that 24 Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN PART as explained in document. Signed by Judge Jay C. Zainey on 7/25/2017. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARY FAIRLEY

CIVIL ACTION

VERSUS

NO. 16-3488

ART CATERING, INC., ET AL.

SECTION A(4)

ORDER AND REASONS
The following motion is before the Court: Motion for Partial Summary Judgment (Rec.
Doc. 24) filed by plaintiff Mary Fairley. Defendant ART Catering, Inc. opposes the motion. The
motion is before the Court on the briefs without oral argument.1
The late Mr. Ronnie Fairley was a Jones Act seaman employed by defendant ART
Catering, Inc. in July and August 2015. Fairley was assigned to duties aboard the D/S TITANIUM
EXPLORER.2 Fairley’s last day on the vessel was August 7, 2015. On the night of August 7-8,
2015, Fairley presented at the emergency room with irregular heartbeat and labored breathing.
He was diagnosed with right foot gangrene, cellulitis of the foot, and sepsis. From August 8, 2015
through August 22, 2015, the date of his death, Fairley’s condition was grave and he remained
hospitalized. Fairley’s medical bills totaled nearly $300,000. The sole issue presented by
Plaintiff’s motion for partial summary judgment is whether ART is obligated to pay cure for the
August 8-22, 2015 hospitalization.

1

The motion was originally scheduled for submission on June 14, 2017 but both parties were granted leave
to file supplemental memoranda, the last of which was filed on July 17, 2017.
Plaintiff Mary Fairley was Ronnie Fairley’s spouse and is the personal representative of his estate. Ms.
Fairley testified that Ronnie Fairley was employed by ART Catering for 11-12 years. Although the issue of seaman
status was raised as part of Plaintiff’s motion for partial summary judgment, ART Catering does not contest seaman
status. This aspect of Plaintiff’s motion will be granted.
2

16-cv-3488 Fairley v. ART Catering, Inc., et al.
Plaintiff’s MPSJ no. 24
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According to Plaintiff, Fairley was in the course and scope of his employment aboard the
vessel when he fell ill. Plaintiff points out that Fairley was already suffering from a serious
infection and gangrene when he presented at the emergency room on the same day that he
departed the vessel. Given the advanced stage of the infection when Fairley was first
hospitalized, Plaintiff contends that ART has no legitimate basis to contest that he fell ill while “in
the service of the vessel.”
Summary judgment is appropriate only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the
light most favorable to the non-movant, "show that there is no genuine issue as to any material
fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material fact is "genuine" if
the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.
(citing Anderson, 477 U.S. at 248). The court must draw all justifiable inferences in favor of the
non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the moving party has initially
shown "that there is an absence of evidence to support the non-moving party's cause," Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward with "specific
facts" showing a genuine factual issue for trial. Id. (citing Fed. R. Civ. P. 56(e); Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v.
Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
Plaintiff’s motion is DENIED as to the cure obligation. As ART Catering has emphasized
in its memoranda, Plaintiff did not plead a claim for cure. In fact, medical expenses are not an

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Plaintiff’s MPSJ no. 24
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element of damages prayed for in the complaint.3 Plaintiff cannot obtain summary judgment on a
claim that is not pending. And while the Court agrees with Plaintiff’s contention that many of the
issues that ART Catering makes in its opposition are irrelevant (or at least merely dilatory) to the
question of whether cure would be owed, the Court is persuaded that Plaintiff’s motion is
premature nonetheless.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Partial Summary Judgment (Rec. Doc. 24) filed
by plaintiff Mary Fairley is GRANTED IN PART AND DENIED IN PART as explained above.
July 25, 2017

__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

3 ART Catering advises that all of Fairley’s medical expenses were paid by his medical insurer and the insurer
has not intervened to date. ART Catering also advises that it has paid maintenance under protest.

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Plaintiff’s MPSJ no. 24
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