Schlueter v. Ingram Barge Company

Filing 77

MEMORANDUM & ORDER. The defendant's Motion for Partial Summary Judgment on the Issue of Loss of Household Services ( 63 ) is DENIED. The Clerk is DIRECTED to TERMINATE the first Motion for Partial Summary Judgment ( 49 ) as superseded by the second. Signed by District Judge Aleta A. Trauger on 10/1/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

BOBBY SCHLUETER,
Plaintiff,
v.
INGRAM BARGE COMPANY,
Defendant.

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Case No. 3:16-cv-02079
Judge Aleta A. Trauger

MEMORANDUM & ORDER
Before the court is defendant Ingram Barge Company’s Motion for Partial Summary
Judgment on the Issue of Loss of Household Services. (Doc. No. 63.) For the reasons set forth
herein, the motion is DENIED.
I.

FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of an injury suffered by plaintiff Bobby Schlueter on February 7,

2014, while he was a member of the crew of the M/V Sarah L. Ingram, a vessel owned and
operated by the defendant, Ingram Barge Company (“Ingram”). Schlueter filed the Complaint
initiating this action on August 8, 2016, asserting claims under the Jones Act, 46 U.S.C. § 30104,
and the general maritime law of the United States. (Doc. No. 1.)
One of the elements of damages that Schlueter seeks to recover is the loss of his
household services. In support of these damages, he has retained the services of Robert E. “Jay”
Marsh, who has opined that this loss will be $323,200.80. (Doc. No. 64-1.) Schlueter and his
wife both testified that, prior to his injury, Schlueter performed a lot of work around his house
and yard, including household maintenance and home improvement. He also performed
mechanical and maintenance work on his own cars.

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The Initial Case Management Order entered on October 20, 2016 prohibits the filing of
partial motions for summary judgment except upon leave of court. (Doc. No. 12, at 3.) The
defendant, without leave of court, filed its first Motion for Partial Summary Judgment on August
21, 2019. (Doc. No. 49.) The court thereafter entered an order directing that that motion be held
in abeyance pending the defendant’s compliance with the court’s procedures. (Doc. No. 54.) The
defendant filed a Motion for Leave of Court to File Motion for Partial Summary Judgment. The
court ultimately granted that motion in part and set a briefing schedule for the filing of a new
motion for partial summary judgment on one of the two issues on which the defendant sought
partial judgment.
In accordance with the court’s directive, the defendant filed its Motion for Partial
Summary Judgment on the Issue of Household Services, supporting Memorandum of Facts and
Law, and Statement of Undisputed Material Facts on September 6, 2019, asserting that it is
entitled to judgment in its favor on the plaintiff’s claim of damages associated with the loss of
his own household services. (Doc. Nos. 64, 65.) The plaintiff filed a Response, Response to the
Statement of Undisputed Facts, and Statement of Additional Facts. (Doc. Nos. 73, 74.) The
defendant filed a Reply and a Response to the Plaintiff’s Statement of Additional Facts. (Doc.
Nos. 75, 76.) The facts relevant to the defendant’s motion are undisputed.
II.

LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party bringing the summary judgment motion has the initial burden of informing the
court of the basis for its motion and identifying portions of the record that demonstrate the
absence of a genuine dispute over material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.
2003). In evaluating a motion for summary judgment, the court views the facts in the light most

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favorable to the nonmoving party and draws all reasonable inferences in favor of the nonmoving
party. Bible Believers v. Wayne Cty., 805 F.3d 228, 242 (6th Cir. 2015); Wexler v. White’s Fine
Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003).
III.

ANALYSIS
The issue presented here is purely a legal one: whether a plaintiff bringing suit under the

Jones Act based on personal injury, rather than death, may recover as part of his damages the
value of the loss of his own household services.1 The defendant concedes that the value of the
loss of household services is recoverable under the Jones Act but argues that such recovery is
available only in death cases brought by a decedent’s estate and beneficiaries, rather than in
injury cases brought by the injured party. The available legal authority does not support this
distinction, and all relevant caselaw indicates that such damages are available in Jones Act injury
cases as well.
The Jones Act provides in relevant part:
A seaman injured in the course of employment . . . may elect to bring a civil
action at law, with the right of trial by jury, against the employer. Laws of the
United States regulating recovery for personal injury to, or death of, a railway
employee apply to an action under this section.
46 U.S.C. § 30104. That is, the Jones Act expressly incorporates by reference the Federal
Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. See Miles v. Apex Marine Corp., 498
U.S. 19, 32 (1990) (recognizing that Congress “incorporate[ed] FELA unaltered into the Jones
Act”); Sobieski v. Ispat Island, Inc., 413 F.3d 628, 631 (7th Cir. 2005). Consequently, cases
interpreting FELA are generally relevant to Jones Act cases. See Miles, 498 U.S. at 32; Sobieski,

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The defendant does not address the question of whether such damages are available
under general maritime law or even whether the plaintiff’s claims are properly brought under
general maritime law. In any event, as set forth herein, the same types of damages are generally
recoverable under both the Jones Act and general maritime law.

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413 F.3d at 631 (7th Cir. 2005) (“The act by its terms extends the protections of [FELA] to
seamen, and thus FELA caselaw is broadly applicable in the Jones Act context.” (citations
omitted)). In Miles, the Supreme Court recognized that, although the Jones Act “does not
explicitly limit damages to any particular form,” Miles, 498 U.S. at 32, by the time of the
enactment of the Jones Act, FELA had long been construed as limiting recovery to pecuniary
losses. The Court concluded that Congress was aware of the existing case law at the time and,
therefore, “must have intended to incorporate the pecuniary limitation on damages [into the
Jones Act] as well.” Id. The Court therefore held that the Jones Act did not authorize recover for
“loss of society,” a non-pecuniary form of damages, in a Jones Act wrongful death action. Id.
Courts recognize that the same limitation applies to Jones Act injury actions as well. See, e.g.,
Michel v. Total Transp., Inc., 957 F.2d 186, (5th Cir. 1992) (rejecting the plaintiffs’ attempt to
distinguish their case from Miles on the basis that Miles involved wrongful death, rather than
personal injury, and reversing the award of loss of consortium damages to injured seaman’s wife
on the basis of the holding in Miles that damages for loss of society are not recoverable under the
Jones Act).
The defendant appears to be arguing that the injured plaintiff’s own claim for damages
related to the loss of household services constitutes a form of non-pecuniary damages that are not
recoverable under the Jones Act. (See Doc. No. 65, at 5.) The defendant relies, in large part, on
this court’s opinion in Dwyer v. Southwest Airlines, Inc., No. 3:16-cv-03262 (lead case), 2019
WL 2025243 (M.D. Tenn. May 8, 2019), denying the plaintiff’s motion to amend her complaint
as futile, because Tennessee does not appear to recognize a plaintiff’s claim for damages in the
form of the loss of her own household services.

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Although the court characterized the plaintiff’s damages claim in that case as a form of
non-economic damages based on Tennessee law, see id., at *4, the Jones Act preempts state law,
and the Sixth Circuit has expressly recognized that the loss of household services in the context
of a Jones Act claim qualifies as a form of pecuniary damages. See, e.g., Morvant v. Constr.
Aggregates Corp., 570 F.2d 626, 631 (6th Cir. 1978) (recognizing that “societal losses,” as
nonpecuniary losses, are not recoverable under the Jones Act, but that “[h]auling out the garbage,
mowing the lawn, making repairs, and other household tasks may be performed by a father as
labors of love, but they are labors nonetheless, and historically where they have been performed
for others, they have commanded an economic price which we think may fairly be included as a
part of the pecuniary loss suffered by the decedent’s family, considered apart from the nonpecuniary element of loss of society” (footnotes omitted)).
The Sixth Circuit in Morvant noted, at the same time, that “the loss of services is a
recognized element of damages” in a wrongful death action under both the Jones Act and general
maritime law. Id. at 633 n.7. In fact, as the defendant concedes, courts universally recognize that
the value of a decedent’s household services in a Jones Act case are recoverable as damages. See,
e.g., De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 141 (5th Cir. 1986) (“Recoverable
items [in Jones Act death action] include . . . loss of Centeno’s household services . . . “); In re
Magnolia Fleet, No. CV 16-12297, 2017 WL 5541360, at *1 (E.D. La. Nov. 17, 2017) (“Under
both general maritime law and the Jones Act, survivors are entitled to recover ‘pecuniary
damages for . . . loss of household services.’” (citing Neal v. Barisich, Inc., 707 F. Supp. 862,
868–69 (E.D. La. 1989), aff’d, No. 9-3265, 889 F.2d 273 (Table) (5th Cir. 1989)); Champ v.
Marquette Transp. Co., LLC, No. 5:12-CV-00084-TBR, 2014 WL 2879152, *18 (W.D. Ky.

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2014) (“Certainly, loss of support and loss of services are recoverable under both the Jones Act
and the general maritime law.” (citing Neal, 707 F. Supp. at 868–69)).
While these cases involved the death of the seaman, neither the statute itself nor the
caselaw distinguishes between the type of damages available in a death case and the type of
damages available in an injury case, and the defendant has provided no reason to do so. The
sparse caselaw this court has located on the topic indicates that courts—and parties—presume
that such damages, if properly supported by admissible evidence, are available in injury cases as
well. See, e.g., Perkins v. Am. Elec. Power Fuel Supply, Inc., 91 F. App’x 370, 373 (6th Cir.
2004) (in an action under the Jones Act and general maritime law for negligence causing injuries,
affirming judgment for the plaintiff including damages in the amount of $7,500 for “loss of
household services,” where both parties appealed the damages award but neither appealed the
award of damages for loss of household services); Williams v. Cent. Contracting & Marine, Inc.,
No. 15-CV-867-SMY-RJD, 2018 WL 1612019 (S.D. Ill. Apr. 3, 2018) (following a bench trial,
noting that damages for loss of household services were among those sought by the plaintiff but
declining to award them based on the lack of evidence to support them); Semien v. Parker
Drilling Offshore USA LLC, 179 F. Supp. 3d 687, 717 (W.D. La. 2016) (following a bench trial,
awarding the plaintiff damages for “the value of household services Mr. Semien can no longer
perform”).
In addition, such damages are routinely recovered in FELA cases. See, e.g., Cowden v.
BNSF Ry. Co., 980 F. Supp. 2d 1106, 1123 (E.D. Mo. 2013) (denying motion to exclude the
plaintiff’s economic expert’s testimony regarding the plaintiff’s lost household services, finding
that the challenges went to the credibility of the testimony rather than its admissibility); Larson
v. Wis. Cent. Ltd., No. 10-C-446, 2012 WL 359665, at * (E.D. Wis. Feb. 2, 2012) (rejecting

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motion in limine to exclude the plaintiff’s expert economist on the issue of the value of
household services); Magelky v. BNSF Ry. Co., 579 F. Supp. 2d 1299, 1308 (D.N.D. 2008)
(denying motion for remittitur of damages and specifically rejecting the defendant’s argument
that “future household damages . . . should be excluded from future economic damages” on the
grounds that the expert’s “opinion lacked foundation as to [the plaintiff’s] alleged future loss of
household services”); Rachel v. Consol. Rail Corp., 891 F. Supp. 428, 431 (N.D. Ohio 1995)
(denying the defendant’s motions in limine seeking to “exclude evidence of the value to Plaintiff
of household services he can no longer perform,” noting that the “Defendant claims damages
may not be recovered for this injury under FELA but cites no authority for this proposition”).
Because, as set forth above, “FELA caselaw is broadly applicable in the Jones Act context,”
Sobieski, 413 F.3d at 631, the fact that such damages are available in FELA cases further
supports the conclusion that they are available under the Jones Act.
Finally, courts have also recognized that damages related to an injured individual’s loss
of household services are recoverable under general maritime law. See, e.g., Jones v. Carnival
Corporation, No. 04-20407-CIV-JORDAN, 2005 WL 8156681 (W.D. Fla. Dec. 12, 2005). Their
availability in that context, again, supports the conclusion that the loss of household services is a
recoverable element of damages in Jones Act cases, too, because the Supreme Court has
expressly recognized that recovery under the Jones Act is intended to be consistent with recovery
under general maritime law. See Miles, 498 U.S. at 32–33 (holding that, because the Jones Act
also precludes recovery for loss of society, such damages were also not recoverable in general
maritime action for wrongful death, stating: “It would be inconsistent with our place in the
constitutional scheme were we to sanction more expansive remedies in a judicially created cause
of action in which liability is without fault than Congress has allowed in cases of death resulting

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from negligence.”); Michel v. Total Transp., Inc., 957 F.2d 186, 191 (5th Cir. 1992) (“In Miles,
the Supreme Court stressed the importance of uniformity concerning the claims available under
the Jones Act and general maritime law.”).
Jones, in fact, is particularly instructive. In that case, a passenger injured on a cruise ship
brought suit for personal injuries under general maritime law. The defendant filed a motion in
limine to exclude the plaintiff’s claim for loss of household services, arguing broadly that
“general maritime law does not permit anyone to recover for loss of services.” Id. at *1. The
court rejected that premise, noting that Miles, on which the defendant relied, was not on point.
Although Miles held that only pecuniary damages were recoverable under the Jones Act, which
meant that damages for “loss of society” were not recoverable, “the Court implied that it viewed
claims for loss of services to be claims for pecuniary loss and thus, distinct from claims for loss
of society.” Id. at *1 n.1 (citing Miles, 488 U.S. at 325). As noted above, the Sixth Circuit has
also recognized that distinction, even prior to Miles. See Morvant, 570 F.2d at 631.
The court in Jones did agree that any evidence relating to the plaintiff’s spouse’s loss of
services should be excluded. The context of the case indicates that the plaintiff’s husband
happened to be disabled. Although he was not a plaintiff in the case, there was some suggestion
that he was affected by the plaintiff’s injuries because he suffered the loss of her services in
caring for him. The court concluded that the plaintiff was not entitled to recover for the loss of
services her husband would suffer as a result of her injury. “Ms. Jones does not cite—and I
cannot find—a case where the injured party recovered loss of services damages on behalf of his
or her spouse.” Id.
However, the court denied the motion insofar as it related to the plaintiff’s claim for
“household services replacement costs” brought by the plaintiff for her own services, based on

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caselaw from other general maritime cases and related law indicating that the loss of household
services is a recoverable element of damages. See id. at *2 (citing Purdy v. Belcher Refining Co.,
781 F. Supp. 1559, 1563 (S.D. Ala. 1992) (permitting injured party in a case brought under
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq., to recover for loss
of household services where he testified that he was very industrious around his house during
off-duty hours); Webb v. Ensco Marine Co., 135 F.Supp.2d 756, 771 (E.D. Tex. 2001) (injured
party in case governed by general maritime law permitted to recover for loss of household
services where physical limitations prevent him from doing work around his house); Thomas J.
Schoenbaum & Jessica L. McClellan, Admiralty and Maritime Law § 5-15 (3rd ed. 2001) (“The
law further presumes that a tort victim may have three kinds of losses: (1) lost earning capacity;
(2) medical and other necessary expenses; (3) pain and suffering.”) (emphasis added);
Hernandez v. M/V Rajaan, 841 F.2d 582, 588-89 (5th Cir. 1988) (injured party not permitted to
recover for loss of household services where he could not prove he performed household services
prior to his injury).
Based on the cited cases, the court in Jones also explained what the term “household
services” encompasses and how damages for their loss are measured:
“Household services” include a wide variety of routine, common, household
chores and tasks. Thus, they are those services that the injured party performed
prior to the injury for the common benefit of the marital partnership or the
household as a whole, as distinct from services to a particular member of the
house. Loss of household services damages are measured by the cost of
employing someone else to perform these services after [the injured party’s]
disability.
Id. (internal quotation marks and citations omitted).
The defendant’s attempt to distinguish the maritime cases holding that an injured plaintiff
may recover for the loss of his own household services is unavailing; there is no meaningful

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distinction. The court is persuaded by the overwhelming weight of authority that a plaintiff
bringing suit for damages under the Jones Act may recover as damages the value of the loss of
his own household services, assuming he submits competent proof establishing that he has
suffered, or will suffer, such damages and their value.
IV.

CONCLUSION & ORDER
For the reasons set forth herein, the defendant’s Motion for Partial Summary Judgment

on the Issue of Loss of Household Services (Doc. No. 63) is DENIED.
The Clerk is DIRECTED to TERMINATE the first Motion for Partial Summary
Judgment (Doc. No. 49) as superseded by the second.
It is so ORDERED.

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ALETA A. TRAUGER
United States District Judge