JANE TRICHE MILAZZO, District Judge.
Before the Court is Defendant's Motion for Summary Judgment (R. Doc. 25). For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART. Plaintiff's unseaworthiness claim is DISMISSED WITH PREJUDICE.
On July 2, 2014, Defendant Cheramie Marine, LLC hired Plaintiff Richard Bosarge to serve as a relief captain aboard the M/V MR. BENITO, which was owned and operated by Defendant. On July 18, 2014, during his first hitch, Plaintiff alleges that he sustained a serious back injury when he was tossed around in his bunk. Plaintiff specifically contends that the captain of the vessel refused to turn back during bad weather with waves ranging from 10 to 14 feet high. Plaintiff asserts causes of action against Defendant for negligence under the Jones Act, unseaworthiness, maintenance and cure, and punitive damages for the arbitrary and capricious denial of maintenance and cure benefits.
Defendant now moves this Court for partial summary judgment on the issues of unseaworthiness, maintenance and cure, and punitive damages.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.
Defendant seeks summary judgment on the issues of unseaworthiness, maintenance and cure, and punitive damages. This Court will address each claim in turn.
Plaintiff claims that the M/V MR. BENITO was unseaworthy for two reasons. First, Plaintiff argues that the vessel was unseaworthy because it was not reasonably fit to safely travel in the hazardous weather conditions it encountered. Second, Plaintiff argues that the crew of the M/V MR. BENITO was unfit because members of the crew were under the influence of drugs. "One crew member repeatedly slapped himself in the face. The crew also stored fake urine on the vessel, presumably since they could not pass surprise drug tests without the fake urine.... [The Captain] presumably did [not turn the boat around] due to fear of him (or his deckhand) being drug tested."
"Seaworthiness, as that term has been defined and redefined, is reasonable fitness to perform or do the work at hand."
As a threshold matter, this Court notes that some of Plaintiff's exhibits are inadmissible for purposes of this Motion. "[O]n a motion for summary judgment, the evidence proffered by the plaintiff to satisfy his burden of proof must be competent and admissible at trial."
Plaintiff's Exhibit A purports to be a message from a member of the crew of the M/V MR. BENITO. It has been submitted to this Court, however, in the body of an email that a unidentified third party sent to herself. The email contains no verifying information about the writer of the text and is unsworn. Exhibit B contains first a handwritten account of the events at issue in this case. The writing is unsigned, and the writer is never identified. Next, Exhibit B contains the transcript of a recorded interview with Plaintiff. The authenticity of this transcript is not verified. Both exhibits constitute hearsay. "Hearsay evidence, because it is inadmissible at trial, is not competent summary judgment evidence."
That said, even considering these exhibits, Plaintiff has failed to create a genuine issue of material fact. Plaintiff relies entirely on Exhibits A and B to support his unseaworthiness claim. Neither of these exhibits show that any possible drug use or fake urine aboard the vessel were a cause of the Captain's decision to proceed in bad weather. Further, Defendant correctly argues that the isolated, personal act of a fellow crew member cannot render a ship unseaworthy.
Next, Defendants seek to dismiss Plaintiff's claim for maintenance and cure. Defendant's motion raises the McCorpen defense to argue that it does not owe Plaintiff maintenance and cure because he concealed a material medical fact during a pre-hiring medical examination.
To prevail on the McCorpen defense, "an employer must show that (1) the claimant intentionally misrepresented or concealed medical facts; (2) the non-disclosed facts were material to the employer's decision to hire the claimant; and (3) a connection exists between the withheld information and the injury complained of in the lawsuit."
At the outset, the Court notes that Plaintiff's opposition to this Motion initially argued that Defendant had waived the McCorpen defense by failing to plead it in its answer. Defendant was subsequently granted leave to amend its Answer to assert this defense. Accordingly, this argument is mooted.
Plaintiff next argues that Defendant is unable to satisfy the second element of the McCorpen defense — that Plaintiff's prior back trouble was material to Defendant's decision to hire him. The Fifth Circuit has stated that "[t]he fact that an employer asks a specific medical question on an application, and that the inquiry is rationally related to the applicant's physical ability to perform his job duties, renders the information material for the purpose of this analysis."
Here, it is clear that Plaintiff's undisclosed back injury was material because Defendant specifically inquired as to his past back injuries and such an injury is rationally related to the duties of a vessel captain. "The fact that the questions were asked makes the answers material for McCorpen purposes."
What is less clear, however, is whether this information would have affected Defendant's decision to hire Plaintiff. Plaintiff argues that Defendant would have hired him even if he had disclosed his prior injury because the injury was extremely minor and Plaintiff had subsequently been cleared for full work duty by a prior employer. Indeed, Plaintiff submits records revealing that he underwent a lumbar spine MRI in 2013 prior to beginning work with Parker Drilling. The MRI results were normal, and he was recommended to work without restriction or accommodation.
Defendant next seeks to dismiss Plaintiff's claims for punitive damages for the arbitrary and capricious denial of maintenance and cure. "It is well-settled that a shipowner who arbitrarily and capriciously denies maintenance and cure to an injured seaman is liable to him for punitive damages and attorney's fees."
Defendant contends that Dr. Christopher Cenac, Jr., Defendant's company doctor, began treating Plaintiff for his back injury immediately following the accident at issue in this matter. Defendant began paying Plaintiff maintenance and cure at that time. On September 25, 2014, Dr. Cenac indicated that Plaintiff had reached MMI, and Defendant ceased paying Plaintiff maintenance and cure benefits.
Plaintiff claims that Defendant willfully and wantonly terminated his maintenance and cure benefits for several reasons. First, Plaintiff notes that Dr. Cenac's MMI opinion came within a week of Plaintiff filing this suit, despite the fact that on September 3, 2015 Dr. Cenac had ordered additional diagnostic testing of Plaintiff. Second, Plaintiff began seeing Dr. Paul Fenn on September 9, 2015, and he issued an opinion stating that Plaintiff had not yet reached MMI. Defendant refused to reinstate maintenance and cure despite Dr.
The Fifth Circuit, however, has stated that "where a shipowner had relied on the opinion of its own physician (who had examined the seaman) to terminate maintenance payments in the face of conflicting medical opinions on the issue of whether maximum cure had been reached, a jury question was raised as to whether such behavior would entitle the seaman to punitive damages."
For the foregoing reasons, Defendant's Motion is GRANTED IN PART and DENIED IN PART. Plaintiff's unseaworthiness claim is DISMISSED WITH PREJUDICE.