United States District Court, D. Hawaii
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
Michael Seabright, Chief United States District Judge
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.
contends that an order compelling
“cure” 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.
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
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,
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.
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).
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).
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).
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”).
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.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 ...