ALAN C. KAY, Senior District Judge.
This matter arises under admiralty law. Plaintiff Chad Barry Barnes was injured on July 3, 2012, by an explosion while working as a seaman aboard in rem defendant M/V Tehani. Exhibits ("Ex.")
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On July 31, 2018, Barnes's claim for maintenance and cure came on for a three-day trial without a jury. The issues for determination were: (1) the daily rate of maintenance—at least $34 per day—to which Barnes is entitled; (2) the amount of cure, if any, to which Barnes is entitled; (3) whether Barnes has reached maximum medical cure; (4) whether SHR's denial of maintenance and cure was willful and wanton, justifying an award of attorneys' fees and punitive damages to Barnes; and (5) the appropriate rate of pre-judgment interest, if any, applicable to any judgment in favor of Barnes.
The Court, having carefully considered the testimony of the witnesses, the exhibits in the record, and pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, makes the following Findings of Fact and Conclusions of Law. To the extent that a Finding of Fact constitutes a Conclusion of Law, the Court adopts it as such. And to the extent that a conclusion of Law constitutes a Finding of Fact, the Court also adopts that assumption.
1. At all times material, plaintiff Chad Barry Barnes was a resident of the District of Hawaii. Barnes was a seaman serving on the M/V Tehani on July, 3, 2012. Barnes Tsti. Tr. 24:4201211; Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment as to Unseaworthiness, Negligence Per Se, and Jones Act Negligence, and Dismissing Defendant M/V Tehani for Lack of Jurisdiction at p. 19, ECF No. 197.
2. At all times material, in personam defendant Sea Hawaii Rafting, LLC ("SHR") was a Hawaii limited liability corporation with its principle place of business in Hawaii.
3. At all times material, in rem defendant the M/V Tehani and her appurtenances (together with SHR, "Defendants"), was located in the District of Hawaii. The M/V Tehani was and is a commercial vessel duly registered and/or documented by and with the State of Hawaii, Division of Boating and Ocean Recreation.
4. On July 3, 2012, Henry called Barnes into work for SHR because another deck hand was unable to work as scheduled. Barnes Tsti. Tr. 24:4201211.
5. The two men arrived at the Honokohau Small Boat Harbor in Kailua-Kona, Hawaii, and began to prepare the M/V Tehani for SHR's evening snorkeling trip. Ex. 29; Henry Tsti. Tr. 30:202012 25, 31:1201213.
6. After the initial preparations were complete, Henry started to trailer the Tehani into the water. Ex. 27 at p. 3; Ex. 29 at p. 1.
7. As the vessel was being lowered into the water, Barnes began to start its engines. Ex. 27 at p. 3; Ex. 29 at p. 1. When Barnes started the second engine, there was an explosion from under the floorboards which caused parts of the vessel to be thrown into the air, striking Barnes on the back of the head and injuring him. Ex. 27 at p. 3; Ex. 29 at p. 1.
8. The explosion and fire appear to have been caused by fuel that had leaked out of the fuel tank through a missing bolt in the fuel tank sender gauge; the fuel leaked into the Tehani's bilge and ignited when Barnes started the engine. Ex. 27 at p. 18. A United States Coast Guard investigation concluded that the accident may have been avoided if Henry had installed a required flammable vapor detector and mechanical exhaust system.
9. Following the explosion, Barnes was transferred by ambulance to Kona Community Hospital.
10. At Kona Community Hospital, Barnes received numerous staples to reattach parts of his scalp. Ex. 49 at p. 2; Henry Tsti. Tr. 24:620128; Reumann Trial Tr: 35:9-3720121. Barnes was released from the hospital later that day. Ex. 27 at pp. 3, 13.
11. Following the July 3, 2012 accident, Barnes began to receive treatment for his physical and psychological injuries at the West Hawaii Community Health Center ("WHCHC").
12. From August 2012 through the time of trial, WHCHC psychiatrist Dr. Victoria Hanes, M.D. treated Barnes for various psychological disorders, including: (1) Major Depressive Disorder, Severe; (2) Cognitive Disorder Not Otherwise Specified; and (3) Psychological Factors Affecting Hypothyroidism, Diabetes Mellitus Type II, High Cholesterol, and Tinnitus. Ex. 50 at p. 1, 98;
13. Dr. Hanes reported that Barnes's primary symptoms are chronic depressed mood, thoughts of self harm, and cognitive disorganization. Ex. 50 at pp. 1, 98;
14. Barnes continues to schedule appointments with Dr. Hanes to receive treatment for his various psychological disorders and symptoms resulting from the July 3, 2012 accident.
15. In addition, after seeing various primary care providers since the July 3, 2012 accident, Ex. 50 at pp. 1, 98, Barnes has received treatment from Dr. Heather Miner, M.D. since September 4, 2013, Ex. 50 at p. 71; Miner Tsti. Tr. 49:6201218.
16. Dr. Miner observed that Barnes has several chronic issues that are difficult to manage, including diabetes, hypothyroidism, headaches, memory and cognition issues, difficulty sleeping, Tinnitus.
17. Dr. Miner most recently treated Barnes on July 12, 2018, and felt that he was making progress.
18. Barnes has another appointment scheduled with Dr. Miner on October 17, 2018. Miner Tsti. Tr. 70:15201217.
19. From August 2012 through around February 2016, Barnes's also received treatment from Dr. Marko Reumann, M.D.
20. Dr. Reumann originally believed that Barnes's symptoms were due to a post-concussive syndrome.
21. Barnes's post-traumatic headaches were found to be medically intractable, and Dr. Reumann performed ten occipital nerve blocks to provide Barnes with temporary pain relief. Reumann Tsti. Tr. 53:2201214; Ex 49 at p. 2. Accordingly, Dr. Reumann now believes it likely that Barnes sustained a microscopic microstructural lesion to several parts of his brain in the July 3, 2012 accident. Reumann Tsti. Tr. 39:9201218; Ex. 49 at p. 2.
22. Dr. Reumann further opined that Barnes would benefit from future treatment and would regress if unable to continue his course of treatment. Reumann Tsti. Tr. 74:5201218; Ex. 49 at p.p. 3-4. When asked whether Barnes had reached maximum medical cure, Dr. Reumann stated that Barnes had not. Reumann Tsti. Tr. 75:18201225. Dr. Reumann also stated that Barnes needs continued treatment and could continue to improve.
23. Beyond the testimony of Henry and Barnes, SHR did not submit any evidence or call any other witnesses at trial, including with regard to Barnes's past or current medical conditions.
24. At the time of the July 3, 2012 accident, Barnes was living in a two-bedroom, two-bathroom condominium, which cost him $1,200.00 per month for rent and approximately $200.00 per month for utilities. Barnes Tsti. Tr. 19:25-21:22. Barnes later lost that condominium unit.
25. Within days of Barnes's discharge from the hospital following the July 3, 2012 accident, he began to stay with a man named David Pane. Barnes Tsti. Tr. 30: 3201212; Henry Tsti. Tr. 20:21-22:5. Henry or SHR provided Pane with one $600.00 check on Barnes's behalf to cover rent. Barnes Tsti. Tr. 30: 3201212; Henry Tsti. Tr. 20:21-22:5.
26. After leaving Mr. Pane's residence, Barnes relocated between many different rooms, apartments, and other living arrangements. Barnes Tsti. Tr. 35:19-36:10. Barnes's average rent at these various locations was around $500.00-$700.00 per month. Barnes Tsti. Tr. 36:1201210.
27. Among these various places that Barnes stayed for a period of time was the "ohana" house that Mr. William T. Hughes's daughter owned. Hughes Tsti. Tr. 73:10201214. Mr. Hughes and his family also began to transport Barnes to and from his medical appointments, for meals and groceries, and for prescriptions.
28. During this time, Barnes could not pay or reimburse Mr. Hughes or his family, but Barnes promised Hughes that he would do so in the event he ever prevailed in this action or found himself in a better financial situation.
29. Barnes also spent short periods of time with his mother on the United States mainland.
30. Barnes currently rents at a location that costs him approximately $700.00 per month—$500.00 per month for rent and around $200.00 per month for utilities. Barnes Tsti. Tr. 17:7-18:7.
31. Barnes submitted evidence that his food costs average up to $45.00 per day. Ex 16 at p. 1. Because the places that he lived post-July 3, 2012 accident often lacked kitchens, he was forced to have most of his meals at restaurants.
32. Barnes also submitted evidence that, if he were able to buy groceries to prepare every meal in his own kitchen, he would require at least $25.00 per day comprising $5.00 per day for breakfast, $8.00 per day for lunch, and $12.00 per day for dinner.
33. Mr. Hughes estimated that an average breakfast and lunch in Kailua-Kona, Hawaii would cost between approximately $10.00 and $12.00, while lunch would cost around $12.00. Hughes Tsti. Tr. 82:3201210.
34. For his part, Henry testified that he believes three meals per day would cost up to $37.00 per day. Henry Tsti. Tr. 28:23-30:1.
35. As stated above, Henry or SHR provided David Pane with one $600.00 check on Barnes's behalf to cover rent following the July 3, 2012 accident. Barnes Tsti. Tr. 30: 3201212; Henry Tsti. Tr. 20:21-22:5.
36. On January 1, 2013, Barnes filed a Verified Complaint against SHR, Henry, and a number of Doe defendants, in personam, and M/V TEHANI, HA-1629 CP, and her engines, equipment, tackle, stores, furnishings, cargo and freight, in rem. ECF No. 1. The Complaint alleged the following counts: (1) negligence under the Jones Act, 46 U.S.C. § 688 (Count I); (2) unseaworthiness (Count II); (3) maintenance, cure, and wages under general maritime law (Count III); (4) compensation and recovery for negligence pursuant to the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (Count IV); (5) negligence under 28 U.S.C. § 905(a) (Count V); (6) negligence under 28 U.S.C. § 905(b) (Count VI); (7) individual liability of Henry and the Doe Defendants for the negligence of SHR, pursuant to a theory of "piercing the veil of limited liability" (Count VII); (8) intentional and/or negligent infliction of emotional distress (Count VIII); (9) attorneys' fees (Count IX); and (10) punitive damages (Count X).
37. On August 20, 2013, Barnes filed a Motion for Summary Judgment for Payment of Maintenance and Cure. ECF No. 25; Ex. 7. In opposition, Defendants stated that they attempted to investigate Barnes's maintenance and cure claims but were thwarted by Barnes's failure to cooperate fully with their discovery requests. ECF No. 34; Ex. 8.
38. On November 15, 2013, the Court issued its Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment for Payment of Maintenance and Cure. ECF No. 44. The November 15, 2013 Order granted the motion as to Barnes's entitlement to maintenance and cure, but denied the motion as to the amount of such claims.
39. Also in November 2013, Defendants, pursuant to the Court's proposed stipulation, notified the Court that they were willing to stipulate to and pay $30 per day in maintenance to Barnes without prejudice to either side's right to seek a further higher or lower final determination as to a reasonable daily rate of maintenance; however, Barnes declined this win-win Court-proposed stipulation.
40. On January 27, 2014, Barnes filed a second Motion for Summary Judgment for Payment of Maintenance. ECF No. 58. The Court denied the motion on April 15, 2014, concluding that issues of fact precluded a determination as a matter of law on the issue of the appropriate rate of maintenance. ECF No. 77.
41. On March 7, 2014, and April 1, 2014, Barnes received two payments of $962.83 each from SHR. Ex. 32 at pp. 3-4;
42. On May 21, 2014, Barnes filed his First Amended Complaint. ECF No. 91. In the First Amended Complaint, Barnes brought the following claims: (1) negligence under the Jones Act, 46 U.S.C. § 688, against the in personam Defendants (Count I); (2) unseaworthiness as against the M/V TEHANI, in rem, and the in personam Defendants (Count II); (3) maintenance, cure, and wages under general maritime law (Count III); (4) compensation and recovery for negligence pursuant to the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905, against the in personam and in rem Defendants (Counts IV-VI); (5) individual liability of Henry and the Doe Defendants for the negligence of SHR, pursuant to a theory of "piercing the veil of limited liability" (Count VII); (6) intentional and/or negligent infliction of emotional distress as against all Defendants (Count VIII); and Jones Act negligence per se (Count XII).
43. On May 30, 2014, Barnes filed his Third Motion for Summary Judgment for Payment of Maintenance. ECF No. 94. In addition, on July 1, 2014, Barnes filed a Motion for Summary Judgment for Payment of Cure. ECF No. 103. The Court issued orders denying both motions on September 2, 2014. ECF Nos. 120, 121.
44. Separately, on July 7, 2014, Barnes filed a Motion for Summary Judgment as to Unseaworthiness, Negligence Per Se, and Jones Act Negligence. ECF No. 108.
45. On November 3, 2014, Henry filed for Chapter 13 bankruptcy protection.
46. On December 22, 2015, following delays caused by the above bankruptcy proceedings, the Court issued an Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment as to Unseaworthiness, Negligence Per Se, and Jones Act Negligence, and Dismissing Defendant M/V Tehani for Lack of Jurisdiction. ECF No. 197.
47. After entry of the December 22, 2015 Order, Barnes filed a Motion for Leave to File Interlocutory Appeal. ECF No. 199. On December 30, 2015, the Court denied as moot Barnes's Motion for Leave to File Interlocutory Appeal, finding that Barnes need not seek this Court's permission prior to filing an appeal under 28 U.S.C. 1292(a)(3). ECF No. 203.
48. On March 28, 2018 the Ninth Circuit reversed in part and remanded the December 22, 2015 Order.
49. The Ninth Circuit's Mandate issued on April 27, 2018, and the Court entered a minute order on May 2, 2018 scheduling a non-jury trial on Barnes's claims for maintenance and cure to commence on June 12, 2018. ECF No. 314. After the parties requested a continuance of the non-jury trial, the Court rescheduled it to commence on July 31, 2018. ECF No. 322.
50. On June 29, 2018, the Court issued a Directive to the United States Bankruptcy Court for the District of Hawaii, directing the bankruptcy court transfer to this Court the $10,000.00 in rental income which the bankruptcy court received for use of the M/V Tehani. ECF No. 337. The Court stated that the $10,000.00 in rental income would be available to Plaintiff Barnes,
51. On July 8, 2018, Barnes filed a Second Amended Complaint, which he later verified, against SHR, Henry, Aloha Ocean Excursions, LLC ("AOE")
52. On July 10, 2018, Plaintiff Barnes filed an "Errata Second Amended Complaint," which mirrors the Second Amended Complaint but remedies some of the Second Amended Complaint's spelling, grammatical, and typographical errors. ECF No. 356. On July 17, 2018, Plaintiff Barnes filed a Verification of Errata Second Amended Complaint. ECF No. 363.
53. In the Errata Second Amended Complaint, Barnes alleges the following counts: (1) negligence under the Jones Act, 46 U.S.C. § 688, against the in personam Defendants (Count I); (2) unseaworthiness as against the M/V TEHANI, in rem, and the in personam Defendants (Count II); (3) maintenance and cure under general maritime law (Count III); (4) individual liability of Henry and the Doe Defendants for the negligence of SHR and AOE, pursuant to a theory of "piercing the veil of limited liability" (Count IV); (5) intentional infliction of emotional distress as against all Defendants (Count V); (6) an accounting of Henry, SHR, AOE, and the M/V Tehani (Count VI); (7) attorneys' fees against all defendants (Count VII); (8) punitive damages against the in personam defendants (Count VIII); and (9) Jones Act negligence per se against SHR and Henry (Count IX). ECF No. 356.
54. At the time of trial, Barnes has never received maintenance or cure payments from Defendants beyond the: (a) $600.00 check SHR or Henry paid to David Pane to cover Barnes's rent, Barnes Tsti. Tr. 30: 3201212; Henry Tsti. Tr. 20:21-22:5; (b) two payments of $962.83 each from SHR or Henry, Ex. 32 at pp. 3-4; see also Order Denying Plaintiff's Third Motion for Summary Judgment for Payment of Maintenance at p. 9 n.7, ECF No. 120; and (c) $10,000.00 rental proceeds from use of the M/V Tehani, which this Court obtained from the bankruptcy court and sent to Plaintiff Barnes, and which was available to prepay for the arrest of the vessel, ECF No. 373.
1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1333, which provides original jurisdiction over admiralty or maritime claims. Venue is proper because the defendants are subject to personal and in rem jurisdiction of this Court.
2. The matters before the Court are: (a) the daily rate of maintenance—at least $34 per day—to which Barnes is entitled; (b) the amount of cure, if any, to which Barnes is entitled; (c) whether Barnes has reached maximum medical cure; (d) whether SHR's denial of maintenance and cure was willful and wanton, justifying an award of attorneys' fees and punitive damages to Barnes; and (e) the appropriate rate of pre-judgment interest, if any, applicable to any judgment in favor of Barnes.
3. "Policy considerations have led to the adoption of a somewhat paternalistic attitude toward seamen."
4. "Under principles of general maritime law, seamen are entitled to maintenance and cure from their employer for injuries incurred in the service of the ship[.]"
5. A seaman seeking maintenance "is entitled to the reasonable cost of food and lodging, provided he has incurred the expense."
6. In seeking to prove entitlement to a daily maintenance rate higher than $34.00, Barnes must "present evidence to the court that is sufficient to provide an evidentiary basis for the court to estimate his actual costs."
7. Indeed, a plaintiff's own testimony as to the cost of room and board in the community where he is living is sufficient to support an award.
8. Barnes's current lodging expenses amount to around $700.00 per month. Barnes Tsti. Tr. 17:7-18:7. This $700.00 amount comprises $500.00 per month for rent and approximately $200 per month for utilities.
9. The Court notes that at the time of the July 3, 2012 accident, Barnes's reasonable lodging expenses also amounted to approximately $700.00 per month. Barnes Tsti. Tr. 19:25-21:22. At that time, Barnes was paying around $1400.00 total for a two-bedroom, two-bathroom condominium—the $1400.00 amount comprised $1200.00 per month in rent and approximately $200.00 per month in utilities.
10. Barnes has also submitted evidence that his food costs average as much as approximately $45.00 per day. Ex. 16 at pp. 1, 14.
11. From Barnes's evidence and testimony at trial, therefore, the Court finds that Barnes has adequately established that his actual expenses are $23.00 per day for lodging and $45.00 per day for food. Said differently, the Court finds that Barnes has established actual expenses of $68.00 per day.
12. When a "seaman makes out a prima facie case on the maintenance rate question [by] prov[ing] the actual living expenditures which he found it necessary to incur during his" recovery, "the burden shift[s] to the defendant to demonstrate that [the seaman']s actual expenditures were excessive, in light of any realistic alternatives for room and board available to him in [the locality]."
13. Defendants have entirely failed to carry their burden to demonstrate that Barnes's actual expenses were excessive or unreasonable. Defendants put on a limited case at trial, calling only Henry and Barnes to testify, introducing no exhibits, but extensively cross-examining Barnes's witnesses. In addition, Mr. Henry testified that he believes: (a) lodging in Kailua-Kona, Hawaii would cost Barnes up to $700 per month (or $23.00 per day), Henry Tsti. Tr. 27:25-28:20; and (b) three meals would cost up to $37.00 per day, Id. at 28:23-30:1.
14. Where a seaman provides evidence of actual expenses and the defendant has not shown that the seaman's actual expenditures were excessive, "the court must determine the maintenance award" by "compar[ing] the seaman's actual expenses to reasonable expenses," and awarding the lower amount unless "the plaintiff's actual expenses were inadequate to provide him with reasonable food and lodging."
15. The Court's research indicates that the most recent cases regarding the reasonable rate of daily maintenance for a seaman in the state of Hawaii (let alone in the locality of Kailua-Kona, Hawaii) appear to be more than ten-years old.
16. However, Dr. Jack Suyderhoud, Ph.D., plaintiff's expert witness in the field of economics, testified regarding the reasonable rate of daily maintenance for a seaman living in the locality of Kailua-Kona, Hawaii. Dr. Suyderhoud also provided a report concluding that a rate of "around $70" per day "may be a reasonable estimate of the daily cost [of maintenance] in Kailua-Kona." Ex. 48 at p. 8. To make this determination, Dr. Suyderhoud employed three alternative methods for estimating the reasonable rate of daily maintenance in Kailua-Kona in 2015-dollar values. Ex. 48. While the Court has concerns regarding some of Dr. Suyderhoud's methodology, the Court finds his Exhibit 3 especially helpful.
17. The Court finds that Dr. Suyderhoud's Exhibit 3 is very helpful in establishing the reasonable rate of daily maintenance for the Kailua-Kona community. Ex. 48 at p. 10. Exhibit 3 includes a number of categories of expenses, some of which are not appropriate considerations in a determination of the reasonable daily rate of maintenance; however, Exhibit 3 does include expenses for food and housing, which amount to $87.70 per day for the year 2015. Accordingly, the Court finds that the standard reasonable rate of daily maintenance in Kailua-Kona is at least $87.70, even without adding inflation costs from and after the year 2015. The Court notes that under
18. As stated above, where a seaman provides evidence of actual expenses, "the court must determine the maintenance award" by "compar[ing] the seaman's actual expenses to reasonable expenses," and awarding the lower amount unless "the plaintiff's actual expenses were inadequate to provide him with reasonable food and lodging."
19. Barnes has presented evidence that his actual expenses are $68.00 per day ($23.00 per day for lodging and $45.00 per day for food). The Court has considered expert witness evidence that the reasonable rate of daily maintenance in Barnes's locality is over $87.70. Comparing these two maintenance rates, the Court finds that Barnes is entitled to maintenance at the rate of $68.00 per day from the date of his injury to the current date.
20. Further, the Court finds that maintenance at the rate of $68.00 per day is adequate to provide Barnes with "reasonable food and lodging."
21. Accordingly, Barnes is entitled to maintenance at the rate of $68.00 per day from the date of his injury, July 3, 2012, until he reaches maximum medical cure.
22. Cure is generally understood to require the provision of medical treatment and similarly extends until maximum medical recovery has been reached as a result of "continued and necessary medical treatment."
23. Treatment need not be intended to return a seaman to work in order to be considered "curative." A seaman suffering from permanent and incurable conditions is entitled to maintenance and cure until the point his "condition has stabilized and further progress ended short of a full recovery."
24. A seaman must establish the amount of cure to which he is entitled.
25. Here, Barnes has provided evidence that the State of Hawaii—through its Department of Human Services Med-QUEST Division—holds a lien against Barnes in the amount of $21,697.76 as a result of necessary medical treatment provided to Barnes. Ex. 41. At trial, Barnes's counsel stated that the full amount of the State of Hawaii's lien is the extent of what Barnes is seeking for cure. August 1, 2018 PM Tsti. Tr. 89:19-90:8.
26. Defendants introduced no evidence at trial to undermine or rebut Barnes's evidence as to this amount of curable damages, and the Court thus finds that Barnes is entitled to $21,697.76 in curable damages.
27. Moreover, Defendants "bear[] the burden of proving by a preponderance of the evidence that [the seaman] has reached maximum cure" in relation to his injuries.
28. If any doubt exists as to whether a seaman is entitled to coverage, whether particular medical treatment is necessary, or whether maximum cure has been reached, courts generally resolve disputes in favor of the seaman.
29. Defendants put on a limited case at trial, calling only Henry and Barnes to testify, introducing no exhibits, but extensively cross-examining Barnes's witnesses. Accordingly, Defendants wholly failed to carry their burden to establish that Barnes has reached maximum medical cure.
30. The testimony of Barnes's expert medical witness and treating physicians support this conclusion. Barnes's general neurology expert witness, Dr. Reumann, opined that Barnes has not yet reached maximum medical cure. Reumann Tsti. Tr. 74:52012 18; 75:18201225; Ex. 49 at p.p. 3-4. Barnes's treating physicians also reported that Barnes continues to schedule appointments with them and seeks treatment for his accident-related conditions.
31. Based on Barnes evidence, and considering the extremely limited case that Defendants put on, the Court finds that Barnes has not yet reached maximum medical cure.
32. Attorneys' fees and punitive damages are available under general maritime law for the willful and wanton disregard of the maintenance and cure obligation.
33. The Ninth Circuit has further explained that attorneys' fees incurred in order to secure a maintenance and cure award may be recovered where the failure to provide maintenance and cure is "arbitrary, recalcitrant or unreasonable."
34. And courts have stated that "[a] shipowner becomes liable for punitive damages when its refusal to pay maintenance can be described as callous and recalcitrant, arbitrary and capricious, or willful, callous, and persistent."
35. An employer, however, is "entitled to investigate a claim for maintenance and cure before tendering any payments to the seaman—without subjecting itself to liability for compensatory or punitive damages."
36. Generally, moreover, "the willful, wanton and callous conduct required to ground an award of punitive damages requires an element of bad faith."
37. "Examples of employer behavior that could merit punitive damages have included (1) laxness in investigating a claim; (2) termination of benefits in response to the seaman's retention of counsel or refusal of a settlement offer; [and] (3) failure to reinstate benefits after diagnosis of an ailment previously not determined medically."
38. Defendants argued in 2013 that they attempted to investigate Barnes's maintenance and cure claims but were thwarted by Barnes's failure to cooperate fully with its discovery requests. Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment for Payment of Maintenance and Cure at p. 17, ECF No. 44. However, the Court found in November 2013 that Barnes was entitled to an award of maintenance and cure, even without establishing the amount of such an award.
39. In addition, the Ninth Circuit concluded earlier this year that Barnes was entitled to maintenance in the amount of at least $34 per day from the date of the July 3, 2012 accident, subject to a potential upward increase at trial.
40. Indeed, aside from two payments of $962.83 each on March 7, 2014, and April 1, 2014, Ex. 32 at pp. 3-4;
41. The Court notes that there are considerations weighing against awarding punitive damages and attorneys' fees. For example, pursuant to the Court's proposed stipulation, Defendants notified the Court in November 2013 that they were willing to stipulate to and pay $30 per day in maintenance to Barnes without prejudice to either side's right to seek a further higher or lower final determination as to a reasonable daily rate of maintenance; however, Barnes declined this win-win Court-proposed stipulation.
42. However, the Court finds that the amount of time that has passed since Defendants unambiguously were obligated to pay Barnes maintenance and cure—including after Barnes's rejection of the proposed stipulated amount of maintenance—weighs in favor of awarding punitive damages and attorneys' fees.
43. In addition, Henry filed for Chapter 13 bankruptcy protection on November 3, 2014, and SHR filed for SHR filed for Chapter 7 bankruptcy protection on November 12, 2014.
44. Accordingly, the Court finds that Barnes is the prevailing party and has sufficiently demonstrated that Defendants acted willfully and wantonly in failing to pay him maintenance and cure.
45. As to Barnes's reasonable attorneys' fees and costs, Barnes shall file a motion before the magistrate judge to determine the appropriate quantum within fourteen days of the entry of this Order. Barnes is directed to file a bill of costs and a motion for attorneys' fees and related non-taxable expenses in strict compliance with Local Rules 54.2 and 54.3. LR 54.2(d) provides that any objections must be filed within seven days after a bill of costs is served, and LR 54.3(f) provides that any opposing response must be filed within fourteen days after service of the statement of consultation regarding the motion for attorneys' fees. LR 54.3(f) allows a reply to be filed thereafter within fourteen days. The magistrate judge will then determine the appropriate amount of attorneys' fees and costs to which Barnes is entitled, and thereafter any party may file an appeal in accordance with the aforesaid Local Rules. A separate judgment for attorneys' fees and costs will be entered, which will include the application of the below-determined rate of pre-judgment interest.
46. As to the amount of punitive damages for which Defendants are liable, the Court finds it appropriate to award an amount "necessary to ensure the next worker who falls ill aboard one of Defendant's vessels receives the treatment he deserves, as a seaman and as a human being."
47. Defendants must be made aware that injured seamen are entitled to prompt payment of maintenance and cure.
48. Based on the evidence and testimony presented at trial, the length of time Barnes has not received any payments of maintenance or cure, the complicated factual and procedural history of this case, and Defendants' pro se status for a considerable portion of these proceedings, the Court finds it appropriate to award Barnes $10,000.00 in punitive damages.
49. The final issue is whether prejudgment interest should be awarded. It is generally accepted that, under maritime law, the award of prejudgment interest is nearly automatic.
50. Peculiar circumstances may be found "where plaintiff improperly delayed resolution of the action, where a genuine dispute over a good faith claim exists in a mutual fault setting, where some equitable doctrine cautions against the award, or where the damages award was substantially less than the amount claimed by plaintiff."
51. When determining the appropriate amount of pre-judgment interest to apply, admiralty courts "may look to state law and other reasonable guideposts."
52. The Court thus finds that pre-judgment interest at the rate of 10.00% per year is appropriate. This pre-judgment interest rate shall apply from July 3, 2012, the date of the accident, until the current date, or 2,257 days.
On the basis of the foregoing Findings of Fact and Conclusions of Law, the Court concludes that Plaintiff Chad Barry Barnes is entitled to recover from Defendants (that is, SHR and M/V Tehani and her appurtenances
Before applying pre-judgment interest and without including attorneys' fees and costs, Barnes is entitled to a total judgment in the amount of $172,648.10. Pre-judgment interest at the rate of 10.00% per year applies to this amount from July 3, 2012, to the present date.
Accordingly, pursuant to Federal Rule of Civil Procedure 54, judgment shall enter in favor of Plaintiff Chad Barry Barnes and against Defendants in the amount of $305,856.64.
IT IS SO ORDERED.