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In re Complaint of Healy Tibbitts Builders, Inc.

United States District Court, D. Hawaii

February 20, 2018

In the Matter of The Complaint of HEALY TIBBITTS BUILDERS, INC., as owner pro hac vice of WEEKS 544, O.N. 520935, for Exoneration from or Limitation of Liability, In the Matter of The Complaint and Petition of the United States of America in a Cause for Exoneration from or Limitation of Liability with Respect to Navy Barge YCV-23 Re the Incident Involving Mooring Buoy in Pearl Harbor on December 10, 2014, AND RELATED CROSSCLAIMS, COUNTERCLAIMS, AND THIRD-PARTY CLAIMS.

          ORDER DENYING CLAIMANTS' MOTION TO COMPEL PAYMENT OF CURE, ECF NO. 493

          J. Michael Seabright, Chief United States District Judge

         I. INTRODUCTION

         Claimants David B. Makua, III, and Cesario T. Gaspar (collectively, “Claimants”) seek an order compelling their employer, Limitation Plaintiff Healy Tibbitts Builders, Inc. (“HTBI”), to pay for magnetic resonance imaging scans (“MRIs”) that Claimants' treating physicians have recommended. Mot. at 2 and Exs. A, I, ECF Nos. 493, 493-3, 493-11. Claimants contend that they are entitled to this treatment, as well as “attorney fees for work done to obtain the care, ” under the Jones Act, 46 U.S.C. § 30101, et seq., or under the Longshore and Harbor Workers' Compensation Act (“LHWCA”), 33 U.S.C. § 901, et seq. Mot. at 2; Claimants' Mem. at 2-3, ECF No. 493-1. “Either way, ” Claimants contend HTBI is responsible to pay for this treatment as HTBI is “both the Longshore insurance carrier and the putative Jones Act Seaman insurance [c]arrier.” Mem. at 2, 4.

         HTBI contends that an order compelling “cure”[1] is premature because Claimants' status as seamen is, as yet, unsettled. Opp'n at 4, 12, ECF No. 547. Reluctantly, this court agrees, and DENIES Claimants' Motion at this time.

         II. BACKGROUND

         Claimants are HTBI employees who were injured in a December 10, 2014 accident while working on a project to upgrade moorings in Pearl Harbor. They have filed claims in these consolidated Limitation Actions as a result of that accident. ECF Nos. 13, 14. There is no question that Claimants' injuries happened while they were on the job for HTBI. But the court has already determined that there is a question of fact as to whether, at the time of their injuries, Claimants' job duties were primarily land-based, making them eligible for medical care under the LHWCA, or primarily sea-based (i.e. regularly exposing them to the perils of the sea), making them seamen entitled to cure under the Jones Act. See Order Denying Claimant's Mot. Partial Summ. J., ECF No. 489 at 14-18. Under either system, HTBI is responsible for providing reasonable and necessary medical treatment for Claimants' injuries; the threshold question presented by this Motion is under which system Claimants may proceed.

         Claimants' Counsel states that it is his “policy . . . where there is a question of whether or not [injured workers] are covered under the Jones [A]ct to file Longshore claims because it's usually easier to get them the medical care that they need and there's a quick process called an Informal Conference which facilitates the obtaining of medical care.” Mem. at 4. He did so for these Claimants, and he attaches memoranda from such informal conferences recommending authorization and payment for the MRIs. See U.S. Dep't of Labor Mems. at 3, ECF Nos. 493-9, 493-16. Apparently, HTBI or its carrier declined to accept these recommendations and sent letters denying coverage for the MRIs on November 7, 2017. ECF Nos. 493-10, 493-17.[2]

         According to HTBI, Claimants' counsel has not pursued formal proceedings under the LHWCA through the Office of Workers' Compensation Programs. Opp'n at 12. Claimants filed this Motion on December 11, 2017. ECF No. 493. HTBI filed its Opposition on January 30, 2018, ECF No. 547, and Claimants replied on February 6, 2018, ECF No. 562. No other party has taken a position on these issues. See Statements of No Position, ECF Nos. 543, 545, 546. A hearing was held on February 20, 2018.

         III. DISCUSSION

         The parties disagree about the appropriate legal standard for this Motion. HTBI contends that the court should apply a summary judgment standard, Opp'n. at 5, and characterizes Claimants' Motion as a “thinly veiled motion for reconsideration on the issue of seaman status, ” id. at 11. Claimants contend that a more lenient standard applies, Claimants' Mem. at 7, based on the Supreme Court's recognition of “the breadth and inclusiveness of the shipowner's duty” to provide maintenance and cure to injured seamen. Vella v. Ford Motor Co., 421 U.S. 1, 4 (1975).

         “Admiralty courts have been liberal in interpreting this duty ‘for the benefit and protection of seamen who are its wards.'” Vaughan v. Atkinson, 369 U.S. 527, 531-32 (1962) (quoting Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 529 (1938)). “[T]he shipowner's liability for maintenance and cure [is] among ‘the most pervasive' of all” duties and is “not to be defeated by restrictive distinctions nor ‘narrowly confined.' When there are ambiguities or doubts, they are [to be] resolved in favor of the seaman.” Id. at 532 (quoting Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 735 (1943)). “It has been the merit of the seaman's right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations.” Farrell v. United States, 336 U.S. 511, 516 (1949).

         District courts have recognized that application of the summary judgment standard, which requires the court to draw all inferences in the light most favorable to the nonmoving party, “squares awkwardly with the Supreme Court's instructions to defer to seamen in determining maintenance and cure questions.” Connors v. Iqueque U.S.L.L.C., 2005 WL 2206922, at *1 (W.D. Wash. Aug. 25, 2005); see Buenbrazo v. Ocean Alaska, LLC, 2007 WL 7724765, at *3 (W.D. Wash. Feb. 28, 2007 (“An obvious tension exists between the summary judgment standard, which requires that all doubts be resolved in favor of the non-moving party, and the canon of admiralty law, which provides that all doubts be resolved in favor of the seaman.”); Robb v. Jantran, Inc., 2016 WL 2986233, at *2 (N.D. Miss. May 6, 2016) (observing that “courts throughout the country have struggled to reconcile Vaughan's dictate” to resolve ambiguities in favor of seamen with the summary judgment procedure); Best v. Pasha Haw. Transp. Lines, L.L.C., 2008 WL 1968334, at *1 (D. Haw. May 6, 2008) (collecting cases). Appellate courts have not yet addressed this issue, although the Ninth Circuit has upheld a denial of maintenance as “premature” when questions of fact existed as to a seaman's entitlement thereto. Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1505-06 (9th Cir. 1995), abrogated on other grounds by Atl. Sounding Co. v. Townsend, 557 U.S. 404 (2009).

         This has led some courts to “take a ‘flexible' approach” in dealing with a seaman's motion to compel maintenance and cure. Connors, 2005 WL 2206922, at *2 (quoting Putnam v. Lower, 236 F.2d 561, 568 (9th Cir. 1956) (noting that “admiralty courts are flexible in operation, ” and may exercise limited equitable powers)); see also Boyden v. Am. Seafoods Co., 2000 WL 33179294, at *2 (W.D. Wash. Mar. 21, 2000) (finding that “[a]pplying a summary judgment standard to the payment of maintenance and cure would invite litigation and cause delays by involving the court in the medical determinations” and “thus undermining the policy of simplicity in these matters”).

         For example, in Connors, the plaintiff, an injured maritime engineer, moved to compel payments for maintenance and cure when the ship's owner terminated such payments approximately eight months after the plaintiff's injury. 2005 WL 2206922, at *1. The parties disputed whether the plaintiff had been injured in the service of the ship, whether he had reached “maximum cure, ” and whether, at the time he was hired, he had intentionally concealed his susceptibility to the particular injury.[3]Id. at *2. Persuaded by the Supreme Court's “instructions to construe claims for maintenance and cure liberally in favor of seamen, ” the court ordered the defendant to continue maintenance payments for another approximately nine months, during which time it was permitted to conduct discovery to bolster its defense. Id. at *2, 3. The court denied additional cure payments for ...


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