Summary
declining to grant summary judgment on punitive damages, despite good faith in investigating claim, because there existed conflicting medical evidence as to necessity of further treatment, and since all doubts were to be construed in favor of seaman, questions remained as to whether shipowner's conduct was arbitrary or capricious
Summary of this case from Williams v. Maersk Line, Ltd.Opinion
98 Civ. 4625 (JFK)
April 28, 2000
TABAK MELLUSI, of Counsel: Sheldon Tabak, for Plaintiffs.
BETANCOURT, VAN HEMMEN GRECO, of Counsel: Jeanne-Marie Downey, for Defendants.
MEMORANDUM OPINION and ORDER
Before the Court is Defendants' motion for partial summary judgment, pursuant to Fed.R.Civ.P. 56, dismissing Plaintiff's fourth cause of action which alleges that Defendants failed to provide maintenance and cure in bad faith. For the reasons discussed below, the motion is denied.
The parties
Defendant Transoceanic Cable Ship Company ("Transoceanic") is a corporation licensed to do business in New York. At all relevant times, Transoceanic operated, managed, and controlled a vessel known as C.S. Long Lines, L.P. ("Long Lines" or "the vessel")
Defendant Long Lines is a limited partnership licensed to do business in New York.
Plaintiff was an employee of Transoceanic and a member of the crew of the Long Lines as chief cook from February 10, 1998 to May 6, 1998.
Background
Except where it is indicated otherwise, the following facts are undisputed: Plaintiff, a merchant seaman, was employed as chief cook aboard the Long Lines. On May 5, 1998, Plaintiff was allegedly injured when he fell while loading stores aboard the vessel. Plaintiff departed the vessel not-fit-for-duty on May 6, 1998. A medical examination of Plaintiff was performed on July 14, 1998 by Dr. Leonard Harrison, an orthopedic surgeon, and Plaintiff was found not fit for duty for 30 days. Defendants paid Plaintiff maintenance and cure from May 6, 1998, until August 14, 1998, the day that Dr. Harrison determined prospectively Plaintiff would be fit for duty.
In a letter dated August 10, 1998, Plaintiff's counsel informed Defendants that Plaintiff continued to be unfit for duty based on the result of an August 10, 1998 electro-diagnostic test and a letter from Plaintiff's doctor, Harold S. Goldberg, analyzing the test results, both of which Plaintiff attached to the August 10 letter. The August 10 letter additionally requested authorization for Plaintiff to receive an MRI. Defendants responded in a letter dated August 18, informing Plaintiff that they would like to schedule a follow up medical examination with Dr. Harrison for September 2. Plaintiff's counsel refused to submit Plaintiff to such a medical examination at that time. On August 24, Defendants then moved for an Order directing Plaintiff to submit to an independent medical examination. In an Order dated September 23, this Court granted Defendants' motion to compel Plaintiff to submit to a medical examination.
Defendants arranged for Plaintiff to have an MRI on Monday August 31, 1998 at Greater Metropolitan Radiology, 254 West 31st Street. The doctor at Greater Metropolitan Radiology, Karl L. Hussman, submitted a report stating that the MRI did not show any problems. See Benson Aff., Ex. B. Dr. Harrison likewise reviewed the results of the MRI and found that everything was normal. Plaintiff, however, has submitted reports from two other doctors, Dr. Gerald Klingon and Dr. Jacob Lichy, which state that the MRI shows some spinal injuries. See Tabak Aff., Exs. 9, 10.
On October 1, 1998, Dr. Harrison conducted a follow-up medical examination of Plaintiff and issued a report finding that Plaintiff was fit for duty. See Benson Aff., Ex. C.
On October 6, 1998, Plaintiff's counsel submitted two not-fit-for-duty slips, allegedly issued by Plaintiff's doctor, one dated August 24, 1998, and the other dated September 18, 1998 which indicated Plaintiff was not fit for duty as of those dates. Defendants allege that they paid Plaintiff maintenance and cure through October 1, 1998 in reliance on those not-fit-for-duty slips. See Benson Aff., ¶ 12. Based on Dr. Harrison's October 1, 1998 examination and the MRI report, Defendants discontinued maintenance and cure as of October 1, 1998. See id. ¶ 14.
Plaintiff denies, without further explanation, that Defendants paid maintenance and cure through October 1, 1998. See Pl.'s 56.1 Stmt. ¶ 6. Plaintiff also claims that Defendants were determined to stop maintenance and cure at an earlier stage and handpicked Dr. Harrison to examine Plaintiff knowing that Dr. Harrison would make a finding favorable to Defendants which would reduce their exposure in this personal injury action.
Plaintiff filed a Second Amended Complaint in this action on December 4, 1998, asserting four causes of action. Plaintiff's first and second causes of action allege personal injury damages under the Jones Act, 46 U.S.C. § 688, and the General Maritime and Admiralty Laws of the United States. Plaintiff's third cause of action seeks maintenance and cure. The claim at issue here is Plaintiff's fourth cause of action, alleging that Defendants acted in bad faith in failing to pay maintenance and cure, and seeking $1,000,000 in compensatory damages and attorneys' fees on this claim. Defendants now move for partial summary judgment dismissing the fourth cause of action.
Discussion
Summary Judgment Standards
A motion for summary judgment may be granted under Fed.R.Civ.P. 56 if the entire record demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986); D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 118 S.Ct. 2075 (1998). In considering a motion for summary judgment, a court "must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor." See L.B. Foster Co. v. America Piles. Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). Although the movant initially bears the burden of showing that there are no genuine issues of material fact, once such a showing is made, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 256. "The non-moving party may not rely on mere conclusory statements nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful."D'Amico, 132 F.3d at 149.
Maintenance and Cure
A seaman who becomes sick or injured while in a ship's service is entitled to maintenance and cure. See Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 1000, 8 L.Ed.2d 88, (1962). "Maintenance" consists of the monetary sum sufficient to provide food and lodging to the seaman while he or she is incapacitated and should continue until he reaches maximum medical recovery. See id.; Brown v. OMI Corp., 1994 WL 39026, *4 (S.D.N.Y. Feb. 9, 1994). Maximum medical recovery is the point at which it is determined that the seaman is cured or his condition is declared permanent and incurable. Farrell v. United States, 336 U.S. 511, 518, 69 S.Ct. 707, 93 L.Ed. 850 (1949). "Cure" consists of payment for proper medical attention until the seaman reaches maximum medical recovery. See Brown, 1994 WL 39026, * 4. It is the seaman's burden to prove his or her right of maintenance and cure, Carlsson v. United States, 252 F.2d 352, 354 (2d Cir. 1958); Brown, 1994 WL 39026, *4, but it is a shipowner's burden to prove that the seaman has reached a point of maximum medical cure. McMillan v. Tug Jane A. Bouchard, 885 F. Supp. 452, 459 (E.D.N.Y. 1995). Any doubts or ambiguities are to be resolved in favor of the seaman. See Vaughan, 369 U.S. at 532.
A seaman seeking maintenance and cure is entitled to attorneys' fees when the employer's failure to pay maintenance and cure can be characterized as "callous" or "recalcitrant."Incandela v. American Dredging Co., 659 F.2d 11, 15 (2d Cir. 1981). "While there is no hard and fast rule on what constitutes callous or recalcitrant conduct on the part of a shipowner in denying a claim for maintenance and cure, the courts of this Circuit focus on the shipowner's good faith in investigating the seaman's claim for maintenance and cure." McMillan, 885 F. Supp. at 466. Ordinarily, the issue of callousness and recalcitrance is for the jury to consider. Incandela, 659 F.2d at 15.
In this case, Defendants initially paid maintenance and cure through August 14, 1998, pursuant to the July 14. 1998 medical examination of Plaintiff by Dr. Harrison finding Plaintiff not fit for duty for 30 days. After Plaintiff informed Defendants that he was still not fit for duty on August 10, Defendants requested that Plaintiff submit to an independent medical examination. Plaintiff refused to submit to such an examination until the Court issued an Order directing Plaintiff to do so. Defendants paid for Plaintiff to receive an MRI on August 31, 1998. Defendants claim that they paid Plaintiff maintenance and cure through October 1 once Plaintiff submitted not-fit-for-duty slips, dated August 24 and September 18, on October 6, 1998. Defendants allege that they discontinued maintenance and cure as of October 1 based on Dr. Harrison's October 1 examination of Plaintiff and the MRI report of Dr. Hussman from Greater Metropolitan Radiology. Based on the evidence presented to this Court, there is no indication that Defendants failed to investigate Plaintiff's claim for maintenance and cure.
In support of Plaintiff's argument that Defendants were callous in failing to pay maintenance and cure after a certain date, which Plaintiff maintains is August 14 rather than October 1, Plaintiff contends that Defendants handpicked Dr. Harrison to examine Plaintiff because Defendants knew that Dr. Harrison would make a finding favorable to Defendants in order to permit Defendants to stop maintenance and cure at an earlier time than was warranted. Plaintiff has not provided any evidence to support this contention, however. Nonetheless, the Court concludes that it must deny Defendants' motion for partial summary judgment. Plaintiff has submitted reports from two other doctors indicating that the MRI results showed that Plaintiff suffered spinal injuries. As noted above, any doubts or ambiguities regarding whether a seaman has reached maximum medical cure are to be resolved in favor of a seaman. In addition, the issue of whether a defendant was callous or recalcitrant in failing to pay maintenance and cure is ordinarily for the jury to decide. As a result, the Court cannot find as a matter of law that Defendants were not callous or recalcitrant. Defendants' motion for partial summary judgment dismissing Plaintiff's fourth cause of action is therefore denied.
Conclusion
For the reasons discussed above, Defendants' motion is denied. The parties are hereby given a ready for trial date of May 22, 2000.
SO ORDERED.
Dated: New York, New York April 27, 2000