Opinion
01 Civ. 1666 (LAK)
August 28, 2002
ORDER
This is a Jones Act case in which the plaintiff claims, inter alia, that the defendants wilfully refused to pay maintenance. Defendants move in limine to preclude plaintiff from offering evidence concerning their internal designation of payments made to the plaintiff following the alleged injury. Plaintiff cross moves in limine to preclude defendants from referring to any "effective rate of maintenance" which it may claim that it paid.
The broader background of the case is set out in Sadler v. Moran Towing Corp., 204 F. Supp. d 695 (S.D.N.Y. 2002).
The parties appear to agree that the collective bargaining agreement under which plaintiff was covered called for payment of maintenance at the rate of $15 per day. Plaintiff nevertheless asserts that he and defendants agreed that he would be paid maintenance of $50 per day, and defendants actually paid him $68 per day.
As this Court previously has held, the rate in the collective bargaining agreement is a floor, not a ceiling, on the rate for payment of maintenance. Brown v. United States, 882 F. Supp. 1424 (S.D.N.Y. 1995).
In the course of discovery, plaintiff learned that defendants recorded in their books $15 per day for maintenance and $53 per day as an advance against settlement. He evidently wishes to argue that this means that defendants failed to pay the $50 in maintenance as allegedly agreed and seeks counsel fees on a theory of wilful refusal. See Kraljic v. Berman Enterprises, Inc., 575 F.2d 412, 414 (2d Cir. 1978). Defendants' in limine motion seeks to preclude any reference to their internal bookkeeping, as they of course wish to argue that they paid maintenance of $68 per day. Plaintiff's cross motion is the flip side of this argument. He wants to avoid any reference to an effective rate of maintenance of $68 per day, as this obviously would torpedo his wilful refusal claim.
It is perfectly obvious that there never has been any settlement of this matter and that defendants stoutly deny all liability other than that for maintenance. The payments they made to plaintiff, regardless of their internal bookkeeping, could only have been maintenance, cure or outright gifts. Any reference to their internal bookkeeping would be of doubtful relevance, would be confusing, misleading, and would suggest, improperly, a willingness on defendants' part to settle the liability claim. Defendants' motion in limine therefore is granted. The evidence is not relevant, in part would violate Fed.R.Evid. 408, and in any case is excluded pursuant to Fed.R.Evid. 403 on the ground that any probative value would be far outweighed by unfair prejudice and likely confusion.
Given the fact that there never has been any settlement upon which to make advances, plaintiff's cross-motion appears to lack substantial merit. Defendants surely are entitled to offer evidence of the payments themselves. Depending upon the evidence concerning the circumstances of and reasons for the payments, they may well be entitled to argue that the payments effectively were maintenance and that they paid maintenance at an effective rate of $68 per day. Accordingly, plaintiff's cross-motion is denied, albeit without prejudice to appropriate objection at trial.
SO ORDERED.