Tanner v. Grand River Navigation Company, Inc.
ORDER Granting 44 Motion for Relief for Partial Summary Judgment and Reinstating Plaintiff's Claim for Future Lost Earning Capacity. Signed by District Judge Thomas L. Ludington. (Sian, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHAEL J. TANNER,
Case No. 14-cv-13478
Honorable Thomas L. Ludington
GRAND RIVER NAVIGATION COMPANY, Inc.
ORDER GRANTING MOTION FOR RELIEF FROM PARTIAL SUMMARY
JUDGMENT AND REINSTATING PLAINTIFF’S CLAIM FOR FUTURE LOST
Plaintiff initiated this admiralty law case by filing his complaint on September 8, 2014.
ECF No. 1. In his complaint, Plaintiff alleges that Defendant Grand River is liable for an injury
he sustained while serving as a first mate on the Olive L. Moore tug barge. Tanner brings three
claims against Grand River: (1) breach of its duty to provide a seaworthy vessel in violation of
the Jones Act, 46 U.S.C. § 688 et seq.; (2) breach of an express or implied warranty to provide a
seaworthy vessel reasonably fit for the purpose in which it was intended; and (3) failure to pay
past and future maintenance and cure benefits in a timely manner. Id.
On September 4, 2015 Defendant Grand River moved for partial summary judgment on
four of Plaintiff’s damages claims: (1) past lost wages; (2) future lost earning capacity; (3) past
maintenance and cure; and (4) possible future maintenance and cure. Plaintiff stipulated that
there was no evidence of past loss wages. Plaintiff also agreed that there was no issue regarding
past maintenance and cure because his past medical expenses were covered by insurance, and
agreed dismissal of that claim was appropriate as long as the dismissal was conditioned on
Defendant’s responsibility for any subrogation claims from health insurance carriers. Summary
judgment was granted as to Plaintiff’s claim for possible future maintenance and cure because he
had not yet undergone the recommended shoulder surgeries and thus his speculative damages
were not sufficiently ascertainable. Finally, and relevantly, summary judgment was granted as to
Plaintiff’s future lost earning capacity claim because Plaintiff failed to meet his burden of
showing probable impairment of his future earning capacity.
The jury trial is set to take place on October 18, 2016. On September 7, 2016 Plaintiff
moved for relief from this Court’s order granting Defendant’s partial motion for summary
judgment. See ECF No. 44. Plaintiff alleges that he should be allowed to proceed on a damages
theory of lost future earning capacity under Federal Rule of Evidence 60(b)(2) and (6) due to
changed circumstances. Specifically, he argues that Plaintiff Tanner has undergone shoulder
surgery since this Court’s previous order, and that there is therefore new evidence regarding
impairment of his future earning capacity.
A claim for loss of future earning capacity under the Jones Act, 46 U.S.C. § 688,
requires that the plaintiff “must establish the reduction, if any, in his earning capacity
proximately resulting from the injury by showing the existence of some condition which
demonstrably limits his opportunities for gainful activity.” Petition of United States Steel Corp.
v. Lamp, 436 F.2d 1256, 1270 (6th Cir. 1970) (citing Wiles v. New York, Chicago, and St. Louis
R.R. Co., 283 F.2d 328, 332 (3d Cir. 1960)). The limitation must be “probable.” See Taylor v.
Consol. Rail Corp., 1997 WL 321142, *3 (6th Cir. July 11, 1997). “The critical question is
whether plaintiff has ‘produced competent evidence suggesting that his injuries have narrowed
the range of economic opportunities available to him’.” Gleason v. Am. S.S. Co., 1996 A.M.C.
2861, 2863, (E.D. Mich. May 3, 1996) (quoting Gorniak v. Nat’l R.R. Passenger Corp., 889
F.2d 481, 484 (3d Cir. 1989)).
This means that a plaintiff need not, as a prerequisite to recovery, prove that in the
near future he will earn less money than he would have but for his injury. Rather,
a plaintiff must show that his injury has caused a diminution in his ability to earn
a living. Such a diminution includes a decreased ability to weather adverse
economic circumstances, such as discharge, or lay-off, or to voluntarily leave the
defendant employer for other employment.
Gleason, 1996 A.M.C. at 2863.
Defendant does not object to the relief sought by Plaintiff Tanner, but notes that it retains
its right to challenge the cause of Plaintiff’s impaired earning capacity. Defendant also requests
that the Court limit the period in which Plaintiff may claim loss of earning capacity to the time
Plaintiff reaches 59.5 years of age, or the age Tanner testified that he had planned to retire. In
support of its argument that Plaintiff’s impaired earning capacity damages should be capped,
Defendant emphasizes Plaintiff’s deposition, in which he testified as follows:
Q: So you had just mentioned a little bit ago that you’re trying to just make it to
retirement; is that –
A: My magic number was 59-1/2.
Q: How old are you right now?
Q: And how many years do you expect that you would like to work?
A: It’s not what I would expect to work, it’s when I’m going to have health care,
because after leaving the cement boats, I have no health care. That’s the only
reason I’m working right now. I mean I’ve been doing this since 1977.
Q: Because you have medical benefits when you have a job?
A: Well, yeah, that’s a big thing right now, and that’s what I’m asking. Who’s
going to pay for a surgery or four to six months of my time off, you know? The
doctors all say, “You might get five years out of the shoulder.” I don’t want to
sign up to have a surgery now to have one five years down the road again. I’m
trying to make this -- I don’t know if anybody understands it, but this is what I’ve
been -- it’s killing me. I just –
Q: So let’s say if you didn’t have your shoulder pain, how long would you expect
A: My original plan was 59-1/2, when I could get my hands on my 401, I’m out
of here, because I’ve seen too many people die on these damn boats.
Q: And so –
A: I don’t want to be one of them.
Q: So is your goal still 59-1/2?
Q: What’s your goal now?
A: Whenever the Obamacare or Medicare, I can get Medicare, which is -- what? - 62?
Q: Yeah, I don’t know the answer to that. So that’s –
A: Yeah, neither do I. It’s going to change.
Q: So it’s a moving target right now?
A: It’s going to change, you know
See Tanner Dep. 48-50. Defendant argues that Plaintiff’s future lost wages should be capped at
59.5, not 62, because Defendant has agreed to pay any maintenance and cure incurred by
Plaintiff and because Plaintiff’s surgeon testified that Plaintiff should expect to reach maximum
medical improvement about a year after his surgery. Plaintiff responds that his future lost wages
should not be limited at this time because they go to issues of causation and mitigation, which
are questions of fact for the jury. Plaintiff also argues that maintenance and cure is no substitute
for family health insurance, and that Dr. Vogel’s statement about recover time is a general
estimate and not specific to Plaintiff Tanner’s individual course of recovery.
Plaintiff is correct that family medical coverage is a separate issue from maintenance and
cure, and that Dr. Vogel’s statement about recovery time is a broad estimate. Plaintiff is also
correct that questions of causation and mitigation are normally questions of fact for the jury.
Moreover, while Tanner has admitted that he only intends to work until a time at which he is
able to obtain medical coverage, it is unclear what age he will be when that occurs. Accordingly,
no age cap will be placed on Plaintiff’s renewed claim for lost future earning capacity at this
time. The issue may be revisited at trial.
Accordingly, it is ORDERED that Plaintiff Tanner’s motion for relief from partial
summary judgment, ECF No. 44, is GRANTED.
It is further ORDERED that Plaintiff Tanner’s damages claim for lost future earning
capacity is REINSTATED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 22, 2016
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 22, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager
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