Opinion
Case No C02-0073L
May 16, 2003
MEMORANDUM AND DECISION
I. INTRODUCTION
This matter was heard by the Court in a bench trial on January 31, 2003. Plaintiff, a seaman, suffered a heart attack on March 2, 2001, while in service to Defendant's vessel. Plaintiff seeks maintenance and cure for a second heart attack, which occurred on December 25, 2001 Defendant contends that the second heart attack is not attributable to the first, precluding liability for subsequent maintenance and cure. At the conclusion of the January 31 bench trial, the Court instructed the parties to attempt to settle this matter. Despite several extensions to the settlement deadline, the parties have been unable to resolve this matter See Orders Extending Settlement Deadline (Dkts # 23-25). The Court has considered the evidence presented at trial, exhibits admitted into evidence, and the arguments of counsel. Being fully advised, the Court now makes the following Findings of Fact and Conclusions of Law.
II. FINDINGS OF FACT
1. On March 2, 2001, Plaintiff suffered a heart attack while aboard the Defendant's vessel, the F/V Marauder. On April 30, 2001, Plaintiffs cardiologist released Plaintiff to return to work. Defendant paid maintenance to Plaintiff, at a rate of $30 per day, and all medical bills through May 30, 2001
2. On December 25, 2001, Plaintiff suffered a second heart attack while at home m Alaska Plaintiff underwent medical procedures as treatment for the second heart attack in December of 2001, and May and June of 2002 Over $100,000 in medical bills incurred in that treatment remain due to the Providence Alaska Medical Center and the University of Washington Medical Center.
3. Based on the testimony of Dr Paul Peterson, which the Court finds to be the most credible expert testimony, Plaintiffs December 25 heart attack was caused by scar tissue that formed in the right coronary artery as a reaction to placement of a stent in that artery following the March 2 heart attack The December 25 heart attack was not caused by the natural progression of Plaintiff s underlying heart disease
III. CONCLUSIONS OF LAW
A. Obligation for Maintenance and Cure.
The obligation to provide cure exists at least until the seaman's condition is determined either to be permanent or to have reached maximum medical cure. Vella v Ford Motor Co., 421 U.S. 1, 5 (1975) The shipowner has the burden of proving that maximum cure has been attained. Smith v Delaware Bay Launch Serv., Inc., 972 F. Supp. 836, 848 (D Del. 1997) "The cut-off date for maintenance and cure is not the point at which the patient recovers sufficiently to take up his old employment; but rather, the time of maximum possible cure"Brown v Aggie Millie. Inc., 485 F.2d 1293, 1296 (5th Cir. 1973) Any doubts as to attainment of maximum medical cure must be resolved in favor of the seaman and in favor of payment of maintenance and cure. Vella, 421 US. at 4.
Because the Court finds that the December 25 heart attack was caused by a stent placed in Plaintiffs right coronary artery as treatment for the March 2 heart attack, Plaintiff had not attained maximum medical cure at the time of the December 25 heart attack Therefore Defendant is obligated to pay maintenance and cure for the December 25 heart attack
In the Pretrial Order the parties stipulated that Plaintiff incurred medical expenses of $71,324.57 owing to the Providence Alaska Medical Center and $43,048.92 owing to the University of Washington Medical Center in treatment of the December 25 heart attack. (Pretnal Order at 3). The Court therefore finds that Plaintiff is entitled to $114,373.49 in cure If Plaintiff has incurred or subsequently does incur additional reasonable medical expenses in treatment of the December 25 heart attack and the parties are unable to reach agreement regarding payment of those expenses, Plaintiff may bring the dispute to the Court's attention.
B. Per Diem Maintenance Rate.
In the Order Deferring Motion for Cure (Dkt. # 15), the Court found "that plaintiff may seek a higher per diem [maintenance] rate at trial" (Order Deferring Motion for Cure at 2). The Court having received no evidence that the $30 per diem rate is inadequate, the Court declines to order a higher per diem maintenance rate.
C. Attorney's Fees.
The parties posed the following question in the Pretrial Order1 "Is the plaintiff entitled to reasonable attorney fees based upon defendants' failure to pay maintenance and cure following the receipt of Dr. Peterson's letter of May 21, 2002; or was the denial of fees, in the order of 9/20/02, with prejudice?" The Court does not find that Defendant's failure to provide maintenance and cure was "arbitrary, recalcitrant, or unreasonable," and therefore award of attorney's fees would be inappropriate. Kopczvnski v. The Jacquelme, 742 F.2d 555, 559 (9th Cir. 1984). Furthermore, the Court does not find that the imposition of attorney's fees based upon a consequential damages theory is appropriate here.
D. Common Fund.
Plaintiff argues that if he prevails in this action, he will have created a "common fund" and "[t]he hospitals' right to recovery should be conditioned on their payment of a pro rata share of costs and fees that [Plaintiff] reasonably incurred to recover compensation for the hospitals." (Plaintiffs Trial Brief at 11). In support of this argument Plaintiff cites Winters v. State Farm Mut. Auto. Insur. Co., 99 Wn. App. 602 (2000), and Thirmger v. Amencan Motorist Insur. Co., 91 Wn.2d215 (1978).
"The common fund doctrine provides that when one person creates or preserves a fund from which another then takes, the two should share, pro rata, the fees and costs reasonably incurred to generate that fund."Winters, 99 Wn. App. at 609. The Winters Court explained:
When a fault-free PIP [personal injury protection] insured creates a common fund in a case with an under insured tortfeasor, the common fund (i.e., the PIP insured's full compensation) consists in part of liability proceeds (money recovered from the tortfeasor's liability carrier) and in part of UIM [undennsured motorist] proceeds (money recovered from the PIP insured's UIM earner). The UIM carrier stands in the tortfeasor's shoes when it pays, and its payments are treated as if made by the tortfeasor.Winters, 99 Wn. App. at 612 That the UIM carrier stands in the tortfeasor's shoes when it pays the insured allows that carrier to recover from the common fund (and obligates the carrier to share, pro rata, the fees and costs incurred to generate the fund) when the insured ultimately recovers from the tortfeasor Id. at 613. Absent recovery by the insured of a sum greater than the applicable liability and UIM limits, the UIM carrier has no claim against the insured. Here, in contrast, the health care providers who will be paid from Plaintiffs' cure proceeds would have claims against Plaintiff whether he prevailed in this litigation, did not prevail in this litigation, or did not even bring this suit. The common fund doctrine therefore is inapplicable here
Plaintiff may attempt to raise a common fund defense to the health care providers' claims against him should he, after paying attorney's fees, be unable fully to pay the health care providers.