Moody v. Noble Drilling Holding, LLC et al

Filing 40

MEMORANDUM RULING denying 32 Motion for Partial Summary Judgment. Signed by Magistrate Judge Patrick J Hanna on 11/28/2016. (crt,Williams, L)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
ROBERT AUSTIN MOODY

CIVIL ACTION NO. 6:15-cv-02417

VERSUS

MAGISTRATE JUDGE HANNA

NOBLE DRILLING (U.S.) LLC

BY CONSENT OF THE PARTIES

MEMORANDUM RULING
Currently pending is the motion for partial summary judgment (Rec. Doc. 32),
which was filed on behalf of the defendant, Noble Drilling (U.S.) LLC. The motion
is opposed. Considering the evidence, the law, and the arguments of the parties, and
for the reasons fully explained below, the motion is DENIED.
Background
The plaintiff, Robert Austin Moody, was allegedly injured on Christmas Eve
2014 while working as a floorhand for Noble on its drillship NOBLE DON TAYLOR
in the Gulf of Mexico. In his complaint, Moody alleged that he is a Jones Act
seaman, and he asserted various claims under the general maritime law including
claims for maintenance and cure and for compensatory and punitive damages in the
event that Noble breached its duty to provide proper maintenance and cure benefits.
In the pending motion, Noble seeks a ruling that Moody is not entitled to
continued maintenance payments because he has not incurred any actual expenses for

food or lodging since the accident. Noble also seeks dismissal of Moody’s claim for
damages attributable to Noble’s alleged failure to properly pay maintenance and cure.
Law and Analysis
A.

The Summary Judgment Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment

is appropriate when there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the lawsuit under the
applicable governing law.1 A genuine issue of material fact exists if a reasonable jury
could render a verdict for the nonmoving party.2
The party seeking summary judgment has the initial responsibility of informing
the court of the basis for its motion and identifying those parts of the record that
demonstrate the absence of genuine issues of material fact.3 If the moving party
carries its initial burden, the burden shifts to the nonmoving party to demonstrate the

1

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Sossamon v. Lone Star
State of Tex., 560 F.3d 316, 326 (5th Cir. 2009); Hamilton v. Segue Software, Inc., 232 F.3d 473, 477
(5th Cir. 2000).
2

Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008), citing Anderson v. Liberty
Lobby, Inc., 477 U.S. at 252; Hamilton v. Segue Software, Inc., 232 F.3d at 477.
3

Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007), citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).

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existence of a genuine issue of a material fact.4 All facts and inferences are construed
in the light most favorable to the nonmoving party.5
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by pointing out that
there is insufficient proof concerning an essential element of the nonmoving party's
claim.6 The motion should be granted if the nonmoving party cannot produce
evidence to support an essential element of its claim.7
B.

There is a Genuine Issue of Material Fact Concerning Noble’s
Maintenance Obligation
Maintenance and cure provide a seaman who is disabled by injury or illness

while in a ship's service with medical care and the means of maintaining himself
while he is recuperating.8 Maintenance is a daily stipend for living expenses, and
cure is the payment of medical expenses.9 Maintenance and cure are owed by the

4

Washburn v. Harvey, 504 F.3d at 508.

5

Brumfield v. Hollins, 551 F.3d at 326, citing Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986).
6

Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520
F.3d 409, 412 (5th Cir. 2008), citing Celotex Corp. v. Catrett, 477 U.S. at 325.
7

Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005).

8

Meche v. Doucet, 777 F.3d 237, 244 (5th Cir. 2015).

9

Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1011-12 (5th Cir. 1994); Pelotto
v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979).

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shipowner without regard to the employer’s negligence or the ship’s seaworthiness.10
Maintenance and cure are owed until the seaman reaches the point of maximum
medical improvement.11 A seaman reaches maximum medical improvement when it
is probable that future treatment will not result in the improvement of his condition.12
Therefore, the maintenance and cure duty does not extend to treatment that is only
palliative in nature and “results in no betterment in the claimant's condition.”13
Whether a seaman has reached MMI is a medical determination requiring the advice
of a physician.14

Ambiguity or doubt concerning a seaman’s entitlement to

maintenance and cure must be resolved in the seaman's favor.15

10

Pelotto v. L & N Towing Co., 604 F.2d at 400.

11

MNM Boats, Inc. v. Johnson, 248 F.3d 1139, 1140 (5th Cir. 2001) (per curiam)
(unpublished); Breese v. AWI, Inc., 823 F.2d 100, 104 (5th Cir. 1987).
12

Springborn v. Am. Commercial Barge Lines, Inc., 767 F.2d 89, 95 (5th Cir. 1985);
Pelotto v. L & N Towing Company, 604 F.2d at 400.
13

Johnston v. Tidewater Marine Service, 116 F.3d 478, 1997 WL 256881, at *2 (5th
Cir. 1997) (per curiam) (unpublished); Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir.
1996); Pelotto v. L & N Towing Co., 604 F.2d at 400.
14

Breese v. AWI, Inc., 823 F.2d at 104; Tullos v. Resource Drilling, Inc., 750 F.2d 380,
388 (5th Cir. 1985).
15

Johnson v. Martin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990); Gaspard v. Taylor
Diving & Salvage Co., 649 F.2d 372, 374 n. 2 (5th Cir. 1981); Liner v. J. B. Talley & Co., 618 F.2d
327, 332 (5th Cir. 1980); Vaughan v. Atkinson, 369 U.S. 527, 532 (1962).

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The Fifth Circuit has explained how maintenance is to be calculated. “A
seaman is entitled to the reasonable cost of food and lodging, provided he has
incurred the expense.”16 Furthermore,
A plaintiff who is a seaman injured while in the service of a vessel is
entitled to maintenance if he incurred the costs of food and lodging
during that period. The plaintiff must present evidence to the court that
is sufficient to provide an evidentiary basis for the court to estimate his
actual costs. If the plaintiff presents no evidence of actual expenses, the
plaintiff may not recover maintenance. Otherwise, the court must
determine the maintenance award.17
When called upon to determine the amount of maintenance owed, the court
must compare the seaman’s actual costs of food and lodging with the reasonable cost
of food and lodging in the locality where the plaintiff lives.18 If the seaman’s actual
expenses are less than a reasonable amount, an amount greater than the seaman’s
actual expenses may be awarded.19 “Awarding a standardized rate of maintenance is
appropriate as long as the seaman provides evidence that his actual expenses meet or
exceed the standard, reasonable amount.”20

16

Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 587 (5th Cir. 2001).

17

Hall v. Noble Drilling (U.S.) Inc., 242 F.3d at 590.

18

Hall v. Noble Drilling (U.S.) Inc., 242 F.3d at 590.

19

Hall v. Noble Drilling (U.S.) Inc., 242 F.3d at 590.

20

Hall v. Noble Drilling (U.S.) Inc., 242 F.3d at 592.

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Awarding maintenance without the presentation of evidence of the seaman’s
living expenses is reversible error.21 “A seaman need not present evidence of the
reasonable rate; a court may take judicial notice of the prevailing rate in the
district,”22 but that does not relieve the seaman of the obligation to present evidence
concerning his own actual expenses. The seaman's own testimony as to his expenses
may be sufficient evidence of the amount of maintenance due.23 An injured seaman
is not entitled to maintenance if he resides with his family and incurs no expenses in
obtaining food and lodging.24 But when a seaman’s food and lodging expenses have
been paid for him during his convalescence and he has made an expressed intention
to pay for them, the seaman may recover maintenance even if the repayment
obligation is not legally enforceable.25 The seaman’s burden of producing evidence

21

Hall v. Noble Drilling (U.S.) Inc., 242 F.3d at 588, n. 18 (“In fact, exclusion of such
evidence is reversible error. See McWilliams v. Texaco, Inc., 781 F.2d 514, 517 (5th Cir. 1986)
(holding that it is error to exclude evidence of plaintiff's expenses or of the costs of living in the
locality); Curry v. Fluor Drilling Serv., Inc., 715 F.2d 893, 896 (5th Cir. 1983) (stating that the
seaman's prima facie case is proving “the actual living expenditures which he found necessary to
incur during his convalescence.”)
22

Hall v. Noble Drilling (U.S.) Inc., 242 F.3d at 590.

23

Harper v. Zapata Off-Shore Co., 741 F.2d 87, 91 (5th Cir. 1984), citing Caulfield v.
AC & D Marine, Inc., 633 F.2d 1129, 1132 (5th Cir. 1981).
24

Collinsworth v. Oceanic Fleet, Inc., No. 91-866, 91-1864, 1991 WL 165732 at *1
(E.D. La. Aug. 20, 1991), citing Johnson v. United States, 333 U.S. 46 (1948).
25

Hall v. Noble Drilling (U.S.) Inc., 242 F.3d at 588, citing McWilliams v. Texaco, Inc.,
781 F.2d 514, 517-18 (5th Cir. 1986).

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of his expenses is a light one, and a court may award reasonable expenses even if the
precise amount of actual expenses is not conclusively proven.26
It is an undisputed fact that Noble has paid Moody $35 per day in maintenance
since the accident, which is the equivalent of $1,080 per month.27 At his deposition,
Moody testified that he has lived with his parents since the accident “free and clear”
without paying rent or contributing to their utility bills.28 Noble interprets this to
mean that Moody has not incurred any expenses for food or lodging since his
accident. In response to Noble’s motion, however, Moody submitted his own
affidavit and that of his mother, establishing that he has incurred some expenses for
food since the accident and that he has indicated to his parents that he intends to
repay them for their generosity in providing for his food and lodging since the
accident.29 In his affidavit, Moody stated that he lived with his parents while he was
working for Noble before the accident, and that during that time frame he spent
“approximately $400 per month on food and groceries out of my own pocket.”30 He
also stated that after his disability payments were reduced from $2500 per month to
26

Hall v. Noble Drilling (U.S.) Inc., 242 F.3d at 588.

27

Rec. Doc. 32-2 at 2; Rec. Doc. 32-3 at 18.

28

Rec. Doc. 32-4 at 56-57.

29

Rec. Doc. 35-7, 35-8.

30

Rec. Doc. 35-7 at 2.

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$150 per month, he spent approximately $200 per month on food and grocery
expenses.31 This is important factual information that creates a genuine issue of
material fact concerning the proper amount of maintenance that Noble might
ultimately be required to pay. However, these facts are insufficient to establish what
Moody’s actual expenses for food and lodging have been since the accident.
Therefore, this information precludes summary judgment in Noble’s favor and does
not provide a basis of terminating maintenance at this time, particularly since there
is no evidence that Moody has reached maximum medical improvement.
C.

There is a Genuine Issue of Material Fact Concerning Whether Moody is
Entitled to Damages for Noble’s Alleged Failure to Properly Pay
Maintenance and Cure
When the payment of maintenance or cure is wrongfully denied, a sliding scale

of shipowner liability is applied. A shipowner who is in fact liable for maintenance
and cure but who reasonably denied the payments may be held liable only for the
amount of maintenance and cure.32 A failure to pay maintenance and cure is
reasonable if a diligent investigation indicates that the seaman's claim is not
legitimate or if the seaman does not submit medical reports to document his claim.33
31

Rec. Doc. 35-7 at 2.

32

Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir. 1987), abrogated on other
grounds by Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995).
33

Morales v. Garijak, Inc., 829 F.2d at 1360.

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If a shipowner refuses to pay maintenance and cure without a reasonable defense, the
shipowner becomes liable for compensatory damages in addition to the maintenance
and cure.34 If the shipowner rejects the claim in an arbitrary and capricious, or
willful, callous, and persistent manner, he becomes liable for punitive damages and
attorneys’ fees as well as maintenance and cure and compensatory damages.35 If the
shipowner terminates cure without obtaining a medical opinion, its investigation of
the claim is inadequate, and its denial of cure may be arbitrary and capricious.36
Whether to impose sanctions in such a situation is committed to the district court’s
sound discretion.37
As noted previously, it is an undisputed fact that Noble has paid Moody $35
per day in maintenance since the accident. However, as also noted above, Moody has
not yet proven that he is entitled to this amount of maintenance and no evidence has
been presented showing that maintenance payments have been terminated. Therefore,
there is no basis, at this time, for a claim that maintenance has not been properly paid.

34

MNM Boats, Inc., v. Johnson, 248 F.3d at *1; Morales v. Garijak, Inc., 829 F.2d at

1358.
35

Chet Morrison Contractors, Inc., 666 F.3d 373, 382 (5th Cir. 2012); Morales v.
Garijak, Inc., 829 F.2d at 1358.
36

Breese v. AWI, Inc., 823 F.2d at 104.

37

Breese v. AWI, Inc., 823 F.2d at 102.

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The possibility exists, however, that such a claim could arise in the future. Noble
asked this Court to dismiss Moody’s “claim for punitive damages and attorney fees
based on maintenance. . . payments to date” while “reserv[ing] the right to address
[claims for future maintenance], if asserted, at a later date.”38 This Court declines to
take that action. Until Moody has proven that he is entitled to recover maintenance,
it cannot be determined that maintenance has or has not been paid properly.
Therefore, Noble’s request for relief with regard to maintenance is premature.
With regard to cure, Moody presented evidence that certain of his medical bills
have not been paid. In particular, his discovery responses indicate that Noble stopped
paying for prescription medications purchased from Anderson Pharmacy in July
201539 and he supported that statement with the affidavit of Moody’s mother, Brenda
R. Moody, who stated that she has paid for all of Moody’s prescription medication
since July 17, 2015.40 Moody also contends that Noble has not paid for three visits
with his treating physician, Dr. John Adams.41 On the record as it exists at this time,
however, this Court cannot determine whether the unpaid medical bills fall within the

38

Rec. Doc. 32-1 at 1 n.1.

39

Rec. Doc. 32-2 at 3

40

Rec. Doc. 35-8 at 3.

41

Rec. Doc. 35-5.

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scope of Noble’s cure obligation, nor has any evidence been presented with regard
to why Noble has not paid these bills. Thus, a genuinely disputed issue of material
fact exists concerning whether Noble has satisfied its cure obligation. This dispute
precludes summary judgment in Noble’s favor.
Conclusion
For the reasons explained above, this Court finds that there are genuine issues
of material fact that preclude summary judgment with regard to whether Moody is
entitled to recover maintenance from Noble and with regard to whether Moody is
entitled to damages for Noble’s alleged failure to properly pay cure. Accordingly,
Noble’s motion for partial summary judgment is DENIED.
Signed at Lafayette, Louisiana on this 28th day of November 2016.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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