Giroir v. Cenac Marine Services, LLC
Filing
54
ORDER AND REASONS: IT IS ORDERED that the defendant's motion for summary judgment is GRANTED and that the defendant's motion to strike is DENIED as moot. IT IS FURTHER ORDERED that the plaintiff's remaining claims for maintenance and cure benefits and negligence under the general maritime law are hereby DISMISSED with prejudice. Signed by Judge Martin L.C. Feldman on 05/23/2019. (am)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICKY GIROIR
CIVIL ACTION
V.
NO. 18-3595
CENAC MARINE SERVICES, LLC
SECTION “F”
ORDER AND REASONS
Before the Court are two motions by the defendant: (1) motion
for summary judgment on the plaintiff’s remaining claims for
maintenance and cure benefits and negligence under the general
maritime law; and (2) motion to strike the plaintiff’s jury demand.
For the reasons that follow, the motion for summary judgment is
GRANTED, and the motion to strike is DENIED as moot.
Background
This maritime personal injury action arises out of a relief
captain’s
claim
that
he
sustained
injuries
on
two
separate
occasions while working aboard vessels owned by his employer. 1
Ricky Giroir began working for Cenac Marine Services, LLC
(“CMS”) in November of 2013 as a relief captain and allegedly
suffered injuries to his lower back in September of 2015 and his
1
Insofar as Mr. Giroir has failed to submit any competent evidence
to controvert the material facts outlined in CMS’s statement of
undisputed facts, those facts are deemed admitted for purposes of
CMS’s summary judgment motion. See Fed. R. Civ. P. 56(c)(1); see
also Local Rule 56.2.
1
right knee in November of 2017.
He also had an extensive medical
and surgical record pre-dating his tenure with CMS; that record
includes
an
injury
to
his
right
knee
sustained
during
his
adolescence for which he underwent arthroscopic surgery.
On November 22, 2017, Mr. Giroir allegedly sustained an injury
to his right knee in connection with his assignment as a relief
captain aboard the M/V CHRISTINE CENAC. 2
About three weeks later,
on December 15, 2017, Mr. Giroir completed an incident report, in
which he described the incident as follows: “While crew changing
the flat boat rocked causing me to fall on my right knee and
twisting left ankel [sic].”
According to medical records, Giroir reported to Terrebone
General Medical Center’s Emergency Room on November 22, 2017 at
5:55
p.m.
The
attending
nurse
practitioner
documented
her
interaction with Mr. Giroir as follows:
42-year-old male presents emergency department with
right knee and left ankle pain onset 1 hour prior to
arrival.
He reports having chronic right knee issues
stating “it gave out on me and one [sic] my knee gave
out on me I twisted my left ankle.” Swelling noted to
left ankle. 3
2
Mr. Giroir alleged in his complaint that the incident occurred
on November 22, 2017 but amended his complaint to plead the date
as November 20, 2017.
Moreover, during his deposition, he
initially testified that the incident occurred on November 22,
2017 at 3:00 p.m., but he later clarified that it occurred on
November 20, 2017. According to vessel logs, Giroir departed the
vessel on November 20, 2017.
3 In an attempt to support his position that he injured his knee
while working on a vessel on November 20, 2017, Giroir submits CMS
witness reports prepared by two of his co-workers.
2
Giroir was then referred to Dr. William Kinnard, who performed a
total knee replacement surgery on December 11, 2017.
On April 4, 2018, Mr. Giroir sued Cenac Marine Services, LLC,
alleging that the defendant’s negligence under the Jones Act and
the unseaworthiness of its vessels under the general maritime law
caused his injuries in 2015 and 2017; he also alleged that the
defendant owes him maintenance and cure for both incidents.
In
response, CMS filed a counterclaim on July 26, 2018, seeking to
recover
payments
made
to
and
on
behalf
of
Mr.
Giroir
for
maintenance and cure that are not related to his work activity
with the company.
On January 29, 2019, CMS moved for summary judgment in its
favor, dismissing the plaintiff’s Jones Act and unseaworthiness
claims, as well as his maintenance and cure claim with respect to
his alleged back injury.
In its Order and Reasons dated March 6,
2019, the Court granted both motions. The following day, the Court
continued the March 8, 2019 pre-trial conference and March 25,
2019 trial dates to allow for settlement negotiations and motion
practice directed to the issues remaining in the case.
CMS
now
moves
for
summary
judgment
on
the
plaintiff’s
remaining claims: (1) maintenance and cure benefits related to his
alleged right knee injury; and (2) general maritime law negligence.
The defendant also moves to strike the plaintiff’s jury demand.
3
I.
A.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A genuine
dispute of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.
See id.
In this regard,
the non-moving party must do more than simply deny the allegations
raised by the moving party.
See Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).
Rather, he
must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.
Id.
Hearsay evidence and
unsworn documents that cannot be presented in a form that would be
admissible
in
evidence
opposing evidence.
at
trial
do
not
qualify
as
competent
Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
“[T]he
nonmoving
party
cannot
defeat
4
summary
judgment
with
conclusory
allegations,
unsubstantiated
scintilla of evidence.”
assertions,
or
only
a
Hathaway v. Bazany, 507 F.3d 312, 319
(5th Cir. 2007) (internal quotation marks and citation omitted).
Ultimately, “[i]f the evidence is merely colorable . . . or is not
significantly
probative,”
summary
judgment
is
appropriate.
Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007).
Although
the Court must “resolve factual controversies in favor of the
nonmoving party,” it must do so “only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts.”
Antoine v. First Student, Inc., 713 F.3d
824, 830 (5th Cir. 2013) (internal quotation marks and citation
omitted).
B.
CMS first moves for summary judgment in its favor, dismissing
the plaintiff’s maintenance and cure claim with respect to his
alleged right knee injury.
5
i.
“Maintenance and cure is a contractual form of compensation
afforded by the general maritime law to seamen who fall ill or are
injured while in the service of a vessel.”
Meche v. Doucet, 777
F.3d 237, 244 (5th Cir. 2015) (quoting Jauch v. Nautical Servs.,
Inc., 470 F.3d 207, 212 (5th Cir. 2006) (citing McCorpen v. Cent.
Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968))).
The
obligation to pay maintenance and cure exists regardless of whether
the shipowner was at fault or the vessel unseaworthy.
O’Donnell
v. Great Lakes Dredte & Dock Co., 318 U.S. 36, 41-42 (1943);
Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1499 (5th Cir.
1995), abrogated on other grounds by Atlantic Sounding Co., Inc.
v. Townsend, 129 S. Ct. 2561 (2009).
“‘Maintenance is a daily
stipend for living expenses,’ whereas ‘cure is the payment of
medical expenses.’”
It
is
Meche, 777 F.3d at 244 (citations omitted).
well-settled
that
“[t]he
cut-off
date
for
both
maintenance and cure is not the point at which the seaman recovers
sufficiently to return to work.”
Springborn v. Am. Commercial
Barge Lines, Inc., 767 F.2d 89 (5th Cir. 1985).
Rather, “[t]he
maintenance and cure duty terminates only when maximum [medical
improvement] has been reached.”
McBride v. Estis Well Serv.,
L.L.C., 853 F.3d 777, 783 (5th Cir. 2017) (quoting Boudreaux v.
United States, 280 F.3d 461, 468 (5th Cir. 2002)) (alterations in
original).
Maximum medical cure is achieved “when it appears
6
probable that further treatment will result in no [b]etterment of
the seaman’s condition.”
Pelotto v. L & N Towing Co., 604 F.2d
396, 400 (5th Cir. 1979); see also Morales v. Garijak, Inc., 829
F.2d 1355, 1359 (5th Cir. 1987) abrogated on other grounds by
Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995)
(MMI is “the point at which further treatment will probably not
improve his condition.”).
In other words, “where it appears that . . . future treatment
will merely relieve pain and suffering, but not otherwise improve
the seaman’s physical condition, it is proper to declare that the
point of maximum medical cure has been achieved.”
F.2d at 400.
Pelotto, 604
Finally, maximum medical improvement “is a medical
question, not a legal one,” and any “ambiguities or doubts in the
application of the law of maintenance and cure are resolved in
favor of the seaman.”
Breese v. Awi, Inc., 823 F.2d 100, 104 (5th
Cir. 1987) (internal citations omitted).
ii.
CMS first seeks dismissal of Giroir’s remaining maintenance
and cure claim on the basis that he has reached maximum medical
improvement, relieving CMS of any further obligations. CMS submits
that the plaintiff’s treating orthopedic surgeon, Dr. William
Kinnard, has concluded that Giroir has reached maximum medical
improvement.
For support, CMS points to Dr. Kinnard’s deposition
7
testimony, dated April 2, 2019, in which he testifies that Giroir
achieved maximum medical improvement as of April 17, 2018:
Q: First, just let me ask this question: As of April 17,
2018, from your position as the operating orthopedic
surgeon, did you believe that Mr. Ricky Giroir had
achieved maximum medical improvement regarding the
treatment you had afforded him to his right knee?
A: Yes.
In
opposition,
Giroir
insists
that
Dr.
Kinnard’s
deposition
testimony demonstrates that he has never officially concluded that
Giroir has reached maximum medical improvement.
The particular
excerpts upon which Giroir relies provide:
Q: Doctor, have you ever drafted any report whatsoever
indicating that Mr. Giroir was at maximum medical
improvement?
A: My note, as we indicated dated – let me find the date.
4/17/18. My plan states that there’s adequate healing
to allow him to return to work in the capacity of a pilot
of a boat.
Then I also mention, in the very last
sentence, I have released him back at a medium capacity.
Q: Yes, sir. And I saw that, and I’m quibbling about
it. I’m just asking you if you’ve ever drafted a report
indicating specifically that Mr. Giroir was at maximum
medical improvement?
A: No.
. . .
A: . . . But on question number seven, it states that I
treated him, it states from 12/11/17 to 4/17/18. But
then the next sentence, which is your question about an
approximate date the patient will be able to return to
work, it does say undetermined.
. . .
Q: And, Doctor, just so I’m clear, I’m not quibbling
over all the return to work in a medium capacity at all.
8
It’s maximum medical improvement that I’m interested in,
and that’s why I clued in on that particular document
and that statement, given that you signed and dated it
in June of 2018 although you last saw him in April of
2018. Correct?
A: You’re correct. And again, I never – I do not see a
document nor do I recall making a statement that he was
at maximum medical improvement. I think the implication
was that he was at a point where, in regards to his knee,
he was at maximum medical improvement in order to return
to work in that capacity, but there was never an official
statement to that effect.
. . .
Q: . . . My question is: Did you expect the knee to
continue the healing process? And I ask that because
you used the word adequate healing.
A: You’re correct.
Q: And so did you expect his knee to continue to improve?
A: Yes.
Q: Okay.
A: As a general statement, I tell patients that it takes
one year for soft tissue maturation to occur.
And I
realize that’s a broad timeframe. But in general, at
one year, it’s as good as it’s going to get.
Q: . . . Do you have any idea how Mr. Giroir has done
subsequent to the last time you saw him in April of 2018?
A: I do not.
Giving
the
testimony
a
fair
reading
and
construing
any
ambiguity in favor of the plaintiff, the Court finds that CMS has
satisfied its burden of demonstrating that Giroir has reached
maximum medical improvement.
Dr. Kinnard’s testimony reflects
that Giroir underwent a total knee replacement surgery on December
11, 2017 and returned for a final, post-operative visit on April
9
17, 2018.
During that appointment, Dr. Kinnard released Giroir to
medium capacity work as a boat pilot, although he expected the
healing process to continue.
Dr. Kinnard further testified that,
as a general rule of thumb, he tells patients “that it takes one
year for soft tissue maturation to occur” and that “at one year,
it’s as good as it’s going to get.”
Accordingly, Dr. Kinnard’s
medical testimony supports a finding that Mr. Giroir reached
maximum medical improvement on December 11, 2018 – one year after
the date of his surgery.
Moreover, Giroir has presented no evidence demonstrating that
he has undergone additional knee treatment since his April 17,
2018
evaluation
or
physical condition.
has
opined
that
that
further
treatment
would
improve
his
Nor has he retained any medical expert who
he
has
not
reached
maximum
medical
cure.
Accordingly, the Court finds that CMS has carried its burden of
proving
that
Giroir
has
reached
maximum
medical
improvement,
alleviating CMS of any further maintenance and cure obligation.
CMS
next
submits
that
it
has
fully
funded
all
medical
treatment and surgery received by Giroir and paid all maintenance
benefits to which he is entitled.
For support, CMS offers the
January 29, 2019 sworn affidavit of Andrew Soudelier, CMS’s Human
Resource Marine Personnel Manager, in which he attests:
All of Mr. Giroir’s medical bills have been paid to date
and Mr. Giroir was paid full wages until February 6,
10
2018 before maintenance was instituted at $30.00/day.
Presently, Mr. Giroir is still being paid maintenance.
Although Giroir denies that the Soudelier affidavit is “proof” of
anything, he fails to point to any evidence to contradict that CMS
had paid all of his medical expenses as of January 29, 2019 or
that CMS continued to pay him a daily maintenance allowance at
that time.
He also fails to offer any evidence regarding his daily
living expenses, let alone challenge the sufficiency of the $30
per day maintenance allowance he received.
Moreover, “[o]ther
courts in this district have found that $30.00/day is a reasonable
maintenance
payment.”
See
Armstrong
v.
Offshore
Specialty
Fabricators, No. 15-4027, 2017 WL 1375268, at *3 (E.D. La. Apr.
17, 2017) (Milazzo, J.) (citing Atl. Sounding Co. v. Curette, No.
05-2810, 2006 WL 1560793, at *3 (E.D. La. May 16, 2006) (Zainey,
J.)).
Because there is no genuine dispute of material fact, on
this record, that CMS has satisfied its maintenance and cure
obligation to Mr. Giroir respecting his right knee injury, summary
judgment dismissing the plaintiff’s remaining maintenance and cure
claim is appropriate. 4
4
Having determined that, on this record, CMS has satisfied its
maintenance and cure obligation, the Court need not consider the
defendant’s alternative basis for seeking summary dismissal of
Giroir’s maintenance and cure claim – namely, that his knee injury
was not sustained while he was in “the service of a vessel.”
11
C.
In his complaint and amended complaint, Giroir also alleges
a cause of action for negligence under the general maritime law.
“It is well settled that a seaman does not have a claim
against
his
negligence.”
employer
under
the
general
maritime
law
for
See In re Crewboats, Inc., No. 02-2023, 2003 WL
21018858, at *3 (E.D. La. May 5, 2003) (Fallon, J.) (citing
The Osceola, 189
U.S.
158,
175
(1903); Ivy
v.
Security
Barge
Lines, Inc., 606 F.2d 524, 525 (5th Cir.1979)); see also Taylor v.
Cal-Dive Int'l, Inc., No. 94-2059, 1994 WL 583271, at *1 (E.D. La.
Oct. 18, 1994) (Carr, J.) (“The Jones Act provides the seaman’s
exclusive remedy for the negligence of his employer.”). To qualify
as
a
Jones
Act
seaman,
one
must
show
that
(1)
his
duties
contributed to the function of the vessel or to the accomplishment
of
its
mission,
and
(2)
his
connection
with
the
vessel
in
navigation (or an identifiable group of vessels) was substantial
in both its duration and nature.
Chandris, Inc. v. Latsis, 515
U.S. 347, 368-69 (1995).
Here, it is undisputed that Giroir was a Jones Act seaman at
the time of both the 2015 and 2017 alleged incidents.
The record
reflects that he began working for CMS in 2013 and was employed as
a captain of multiple CMS vessels that regularly operated upon
navigable waters.
Because the Jones Act provides the exclusive
negligence remedy for a seaman, like Giroir, against his employer,
12
summary judgment in favor of CMS dismissing the plaintiff’s general
maritime law negligence claim is appropriate.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendant’s motion for summary judgment is GRANTED and that
the defendant’s motion to strike is DENIED as moot.
IT IS FURTHER
ORDERED: that the plaintiff’s remaining claims for maintenance and
cure benefits and negligence under the general maritime law are
hereby DISMISSED with prejudice. 5
New Orleans, Louisiana, May 23, 2019
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
5
Because no damages have been awarded, CMS may not recover any
maintenance and cure benefits it has paid to which Mr. Giroir may
not have been entitled. See Boudreaux v. Transocean Deepwater,
Inc., 721 F.3d 723, 728 (5th Cir. 2013)(“[O]nce 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 seeking affirmative recovery.”).
13
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