RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0321P (6th
Cir.)
File Name: 00a0321p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
| Robert West,
Plaintiff-Appellee,
v.
Midland Enterprises, Inc., The Ohio River
Company, and Motor Vessel W.H. Dickhoner,
Defendants - Appellants. |
No. 99-5982 |
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 98-00027--William O. Bertelsman, District
Judge.
Argued: August 9, 2000
Decided and Filed: September 14, 2000
Before: COLE and GILMAN, Circuit Judges; TARNOW,
District Judge.(*)
_________________
COUNSEL
ARGUED: Todd M. Powers, SCHROEDER,
MAUNDRELL, BARBIERE & POWERS, Cincinnati, Ohio, for Appellants. John
J. Osterhage, LAWRENCE & SCHLETKER, Warsaw, Kentucky, for Appellee.
ON BRIEF: Todd M. Powers, SCHROEDER, MAUNDRELL, BARBIERE & POWERS,
Cincinnati, Ohio, for Appellants. John J. Osterhage, LAWRENCE & SCHLETKER,
Warsaw, Kentucky, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN,
Circuit Judge. Robert West, a deckhand, alleged that he suffered psychological
injuries as a result of being ordered to watch a pornographic videotape
by the captain of the Motor Vessel W.H. Dickhoner. He sued the
M/V
Dickhoner, The Ohio River Company (the vessel's operator), and Midland
Enterprises, Inc. (the vessel's owner) for negligence under the Jones Act,
46 U.S.C. § 688, for breach of the duty to provide a seaworthy vessel,
and for maintenance and cure. The district court granted summary judgment
for the defendants (collectively ORCO) on West's claims for negligence
and unseaworthiness, concluding that neither of those theories of liability
supported an award for emotional injuries that were not caused by a physical
impact. On West's claim for maintenance and cure, however, the district
court concluded that ORCO was subject to liability. It made this ruling
without holding an evidentiary hearing on liability or any motion by West
for summary judgment.
ORCO filed this interlocutory
appeal, challenging the district court's denial of ORCO's motion for summary
judgment on West's maintenance and cure claim, and the district court's
sua sponte grant of judgment for West on that claim. For the reasons set
forth below, we AFFIRM the district court's denial of ORCO's motion,
but REVERSE its grant of judgment for West, and REMAND this
case to the district court for further proceedings consistent with this
opinion.
I. BACKGROUND
On August 1, 1997,
West boarded the M/V Dickhoner to begin work as a deckhand. Captain
Bernard (Pete) Boggs was in charge of the vessel. Later that month, West
was in the pilot house of the M/V Dickhoner speaking with Captain
Boggs. During that conversation, Captain Boggs asked West, "Bobby, have
you ever seen a man [copulate with] a chicken?" West replied that he had
not. Captain Boggs then asked West if he had "ever seen a woman screw a
pig." At this point in the conversation, West alleges that he was "floored"
by the Captain's line of questioning and wondered why Captain Boggs was
asking such questions. West claims that Captain Boggs then ordered him
to retrieve a videotape from the captain's room and watch it in the crew
lounge.
Although ORCO characterizes
Captain Boggs's statement as a "request," it has not directly challenged
West's allegation that Captain Boggs's statement was an order. Furthermore,
ORCO has presented no evidence or testimony that would dispute West's interpretation
of Captain Boggs's remarks. West did as he was told, watching the videotape
for five to ten minutes. Suffice it to say that the video--which thankfully
was not made part of the record on appeal--depicted a man copulating
with a chicken and women engaging in sexual activity with dogs and horses.
West claims that he suffered mentally and emotionally as a result of watching
this videotape.
West brought suit
against ORCO, asserting that (1) ORCO was negligent, (2) the M/V Dickhoner
was unseaworthy, and (3) he is entitled to maintenance and cure. After
the parties had concluded their discovery, ORCO filed a motion for summary
judgment. The district court granted ORCO's motion on West's claims of
negligence and unseaworthiness. It concluded that West could not recover
for emotional damages under those theories of liability because they require
a showing that such damages are the result of a physical impact. West conceded
that his emotional damages were not caused by a physical impact. The district
court denied ORCO's motion with respect to West's maintenance and cure
claim, however, and referred the matter to a magistrate judge in order
to conduct a hearing regarding the amount of West's damages.
ORCO then filed a
motion for clarification, arguing that the district court appeared to be
entering judgment for West on his maintenance and cure claim when it only
meant to deny ORCO's motion for summary judgment. The district court granted
ORCO's motion to clarify and expressly held that it had intended
to grant judgment for West on his maintenance and cure claim. It did this
despite the lack of an evidentiary hearing on liability or any motion by
West for summary judgment.
ORCO has filed this
interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(3), challenging
the district court's partial denial of its motion for summary judgment,
and arguing in the alternative that West should not have been granted judgment
on his maintenance and cure claim. In particular, ORCO argues that the
district court's action prevented ORCO from attacking West's credibility
and presenting proof that West's mental and emotional problems were causally
related to medical conditions not disclosed on West's preemployment application.
ORCO also claims that West is barred from recovery because of his violation
of the vessel's rules.
II. ANALYSIS
A. Standard of review
We review de novo
a district court's grant of summary judgment. See, e.g., Smith
v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is
appropriate when there are no genuine issues of material fact in dispute
and the moving party is entitled to judgment as a matter of law. See
FED. R. CIV. P. 56(c). In deciding a motion for summary judgment, the court
must view the evidence and draw all reasonable inferences in favor of the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The judge is not "to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
A genuine issue for trial exists when there is sufficient "evidence on
which the jury could reasonably find for the plaintiff." Id. at
252.
B. West's claim for maintenance and
cure is independent of his claims for negligence and unseaworthiness
ORCO's first argument
on appeal is that damages under the doctrine of maintenance and cure cannot
exceed those available under the Jones Act and the maritime doctrine of
unseaworthiness. In this case, that would mean that West could not recover
anything, because the district court granted judgment for ORCO on West's
claims of negligence and unseaworthiness. West counters that his maintenance
and cure claim is not contingent upon the success or failure of his negligence
and unseaworthiness claims.
In deciding this
issue, a historical perspective of maintenance and cure is beneficial.
This court in Blainey v. American Steamship Co., 990 F.2d 885 (6th
Cir. 1993), observed as follows:
Rather than relying upon the protection
of workers' compensation statutes, seamen who suffer illness or injury
on the job look to a unique package of remedies. Due to historical tradition
and the realization that seaman are required to endure special perils and
hardships, federal common law of the sea accords seaman special relief
not available to other workers, including maintenance, cure, and unearned
wages. Maintenance refers to a shipowner's obligation to provide a mariner
with food and lodging if he becomes injured or falls ill while in service
of the ship, while cure alludes to the duty to provide necessary medical
care and attention.
Id. at 886-87 (citations and internal
quotation marks omitted). This court also noted that "[i]n addition to
maintenance, cure, and unearned wages, a seaman may also seek damages from
the shipowner for negligence under the Jones Act . . . or for a breach
of the duty to provide a seaworthy ship." Id. at 887 n.1. "[A] shipowner's
ancient duty to pay maintenance, cure, and unearned wages is imposed by
the law itself as an obligation annexed to the employment; it exists regardless
of any employment contract, including a collective bargaining agreement."
Id. at 887; see also Alrayashi v. Rouge Steel Co.,
702 F. Supp. 1334, 1338 (E.D. Mich. 1989) ("Maintenance and cure is a claim
independent of a claim under the Jones Act or a claim of unseaworthiness.").
In Stevens v.
McGinnis, Inc., 82 F.3d 1353 (6th Cir. 1996), this court observed that
"[o]ver the years, the courts have broadened the duty to pay maintenance
and cure. It is now well-settled that maintenance and cure is payable even
though the shipowner is not at fault, and regardless of whether the seaman's
employment caused the injury or illness." Id. at 1357. The Stevens
court observed that "[a] shipowner must pay maintenance and cure for any
illness or injury which occurred, was aggravated, or manifested itself
while the seaman was in the ship's service." Id. at 1357-58.
Both Blainey
and Stevens make clear that maintenance and cure is an independent
claim that is not contingent upon being able to recover for negligence
under the Jones Act or a violation of the duty to provide a seaworthy vessel.
To recover for maintenance and cure, a plaintiff need show only that (1)
he was working as a seaman, (2) he became ill or injured while in the vessel's
service, and (3) he lost wages or incurred expenditures relating to the
treatment of the illness or injury.
See Freeman v. Thunder Bay Transp.
Co., 735 F. Supp. 680, 681 (M.D. La. 1990) (citing Norris, The Law
of Seaman § 26.21, at 53 (4th ed. 1985)). The "right to recover for
maintenance and cure is broad and the burden of proof is . . . relatively
light since recovery is not dependent on the negligence or fault of the
vessel or its owner." Freeman, 735 F. Supp. at 681. The Supreme
Court has observed "that the shipowner's liability for maintenance and
cure was among the most pervasive of all and that it was not to be defeated
by restrictive distinctions nor narrowly confined. When there are ambiguities
or doubts, they are resolved in favor of the seaman." Vaughan v. Atkinson,
369 U.S. 527, 532 (1962) (citations and internal quotation marks
omitted).
In the present case,
West claims that, while working on the M/V Dickhoner, he was ordered
by the captain to watch a pornographic videotape. West further testified
that as a result of watching this videotape, he suffered emotional problems
and had to undergo mental health counseling. Because West's deposition
testimony makes out a prima facie case for maintenance and cure, the district
court properly denied ORCO's motion for summary judgment.
But ORCO argues that
the Supreme Court case of Consolidated Rail Corp. v. Gottshall,
512 U.S. 532 (1994), and the Sixth Circuit case of Szymanski v. Columbia
Transp. Co., 154 F.3d 591 (6th Cir. 1998), preclude a seaman from recovering
damages for emotional injuries that are not accompanied by a physical impact.
Neither of these cases, however, address a claim for maintenance and cure.
Gottshall is not an admiralty case at all, but rather a claim by
two railroad workers for emotional injuries under the Federal Employer's
Liability Act. The Gottshall court adopted the common law "zone
of danger" test to determine whether a plaintiff may recover damages for
mental injuries under the FELA. Although
Szymanski is an
admiralty case, its holding is limited to the proposition that a seaman
cannot recover for an emotional injury under the Jones Act or under the
general maritime doctrine of unseaworthiness unless the seaman's emotional
injury was accompanied by a physical impact or if he was in the "zone of
danger" for such an impact. The net effect of both cases is that a "zone
of danger" test should be used in determining whether a seaman can recover
damages for emotional stress under the Jones Act or for a violation of
the duty to provide a seaworthy vessel. Because maintenance and cure is
an independent claim that operates like a workers' compensation statute
for seamen, however, neither Gottshall nor Szymanski control
this issue.
C. Although West's failure to disclose
requested medical information does not necessarily prevent him from receiving
maintenance and cure, it does preclude him from being granted judgment
as a matter of law
ORCO points out that
West did not truthfully answer his preemployment physical examination questionnaire
when it asked him to describe his alcohol consumption and whether he had
ever contracted a venereal disease. Because of those misrepresentations,
ORCO argues that West should be precluded from receiving maintenance and
cure. Although West concedes that he did not give a full accounting of
his medical history on his employment application, he argues that his less-than-candid
responses regarding his history with alcoholism and venereal disease are
so distant in time and so unrelated to his present injury that they should
not bar recovery.
The seminal case
on this issue is McCorpen v. Central Gulf Steamship Corp., 396 F.2d
547 (5th Cir. 1968). In
McCorpen, the Fifth Circuit reasoned as
follows:
[W]here the shipowner requires a
seaman to submit to a pre-hiring medical examination or interview and the
seaman intentionally misrepresents or conceals material medical facts,
the disclosure of which is plainly desired, then he is not entitled to
an award of maintenance and cure. Of course, the defense that a seaman
knowingly concealed material medical information will not prevail unless
there is a causal link between the pre-existing disability that was concealed
and the disability incurred during the voyage.
Id. at 549 (citations omitted); accord
Deisler v. McCormack Aggregates, Co., 54 F.3d 1074, 1080-81 (3d
Cir. 1995) (citing
McCorpen for the same proposition); Wactor
v. Spartan Transp. Corp., 27 F.3d 347, 352 (8th Cir. 1994) (citing
McCorpen for the same proposition). We find McCorpen and
its progeny persuasive and will follow it as well.
Because there is
a genuine issue of material fact as to whether West's alleged problems
were caused by watching the videotape as opposed to his alcoholism or venereal
disease, the district court erred in granting judgment for West on the
maintenance and cure claim. West's deposition testimony alone is not enough
to conclusively establish that the videotape caused his alleged psychological
injuries to the exclusion of his other medical conditions. The district
court must conduct a trial in order to evaluate the credibility of West's
assertion, and both sides should be allowed to present expert witnesses
on the issue of causation. If the district court finds a causal link between
West's alcohol consumption or venereal disease and his alleged injuries
incurred during the voyage, then West will be barred from recovering maintenance
and cure because of his material misrepresentations on his preemployment
questionnaire. See McCorpen, 396 F.2d at 549.
ORCO further argues
that it should have been granted judgment on West's maintenance and cure
claim because West failed to present any evidence of damages. West, however,
testified that watching the pornographic videotape caused him to have an
upset stomach, sleepless nights, headaches, and high anxiety. Because of
ORCO's interlocutory appeal, no determination has yet been made as to what
amount of damages, if any, West may be entitled to as a result of these
alleged injuries.
D. West's conduct does not preclude
him from recovering maintenance and cure
ORCO also claims
that because West admits that he brought his own pornographic videotapes
onto the M/V Dickhoner, conduct which violated the vessel's rules,
he should be barred from receiving maintenance and cure. The fact that
West may have violated the vessel's rules by bringing his own pornographic
videotapes on board is irrelevant, however, because the pornographic videotape
that allegedly caused him to have mental problems was brought onto the
vessel by the captain. Moreover, West's pornographic videotapes only featured
human performers, whereas Captain Boggs's videotape had barnyard animals
as co-stars. Because there is no causal link between West's violation of
the vessel's rules and his alleged injuries, his claim for maintenance
and cure cannot be barred on this basis. Cf. McCorpen, 396 F.2d
at 549.
Finally, ORCO argues
that West's decision to obey Captain Boggs's order was in knowing violation
of ORCO's sexual harassment policy. It thus claims that West's willful
misconduct should preclude him from receiving maintenance and cure. This
argument, however, lacks merit because Captain Boggs's order was not per
se unlawful. In fact, ORCO does not even argue that it was illegal to watch
the pornographic videotape at issue. Instead, ORCO argues that West engaged
in willful misconduct by complying with an order that he knew was in violation
of the vessel's sexual harassment policy.
But Captain Boggs,
as the vessel's leader and ORCO's agent, would have had the apparent authority
to change or alter the vessel's policies through his orders. And even if
Captain Boggs did not have the actual authority to alter the vessel's sexual
harassment policy, West was still expected to follow an order from the
captain that was not obviously illegal. See Roeder v. ALCOA Steamship
Co., 341 F. Supp. 1236, 1239 (E.D. Pa. 1972) ("The sailor must obey
the lawful orders of the Master and of his superior officers, and for willfully
disobeying their commands he may be punished.") Accordingly, the fact that
West, a deckhand, followed the captain's order to watch the pornographic
videotape, even if the order was contrary to the vessel's normal policy,
does not come close to constituting willful misconduct that would preclude
him from receiving maintenance and cure. See Warren v. United States,
340 U.S. 523, 528 (1951) (holding that a seaman is entitled to maintenance
and cure unless he engages in "some positively vicious conduct--such as
gross negligence or willful disobedience of orders") (internal quotation
marks and citations omitted).
III. CONCLUSION
For all of the reasons
set forth above, we AFFIRM the district court's decision to deny
ORCO's motion for summary judgment on West's maintenance and cure claim,
but REVERSE its sua sponte grant of judgment for West on that claim,
and REMAND this case for further proceedings consistent with this
opinion.
* The Honorable Arthur
J. Tarnow, United States District Judge for the Eastern District of Michigan,
sitting by designation.
