UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30094
Summary Calendar
KEVIN ROGERS,
Plaintiff-Appellant,
VERSUS
TRICO MARINE OPERATORS, INC., ET AL,
Defendant,
GILBERT CHERAMIE BOATS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(96-CV-2056-L, 96-CV-2930 & 97-CV-754-L)
December 2, 1998
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
Appellant (“Rogers”) seeks to have summary judgment in favor
of appellees (“Cheramie”) reversed on the basis that release
entered into by the parties should have been set aside on grounds
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
of mutual mistake.
I. Background and Procedural History
Kevin Rogers, a longshoreman, filed suit against various
defendants seeking recovery for injuries sustained when the crew
boat he was traveling aboard collided with a vessel owned by
Gilbert Cheramie Boats, Inc. (“Cheramie”). Cheramie moved for
summary judgment on the basis that Rogers’s suit was barred by a
release he had signed settling his claims against Cheramie for
$10,000. The district court granted Cheramie’s summary judgment
motion, finding that Rogers had “failed to demonstrate a genuine
issue as to any material fact regarding the validity of the
release.” The court entered partial final judgment under FED. R.
CIV. P. 54(b) dismissing Rogers’s complaint with prejudice as to
Cheramie. Rogers filed a timely notice of appeal.
The district court summarized the undisputed facts relative to
Rogers’s injury. On the evening of February 19, 1996, in foggy
conditions, a crew boat Rogers was traveling aboard collided with
a vessel owned by Cheramie. At the time of the collision, Rogers
was being ferried to an offshore platform where he served as a
field supervisor. Rogers had been asleep on a bench inside the
crewboat and was thrown to the floor when the two vessels collided.
As a result of being thrown to the floor, Rogers suffered injuries
to his lower back.
On March 13, 1996, Rogers visited Ky’s Chiropractic Clinic
complaining of neck and back pain due to the accident. An initial
evaluation found a cervical and lumbar sprain/strain after which
2
Rogers returned to Ky’s for chiropractic treatment on March 25,
1996. On March 29, 1996, Rogers visited Dr. David Reiss, his
employer’s physician, complaining of low back pain extending down
his leg. Rogers underwent an MRI of the spine, which revealed a
degenerative L4-5 disc and a bulging L5-S1 disc. Following the
MRI, Rogers was referred to Dr. Gregor Hoffman, for orthopedic
evaluation. Dr. Hoffman diagnosed Rogers as having a thoracic
sprain/strain and lumbar sprain/strain with a degenerative disc.
Several days later, Rogers, unrepresented by counsel and
without written approval of his employer, engaged in settlement
discussions with Cheramie. On April 18, 1996, Rogers signed a
release before a notary public and settled his claim against
Cheramie for $10,000.
Notwithstanding the settlement, on June 17, 1996, Rogers filed
the instant suit. Rogers was subsequently seen by Dr. Stuart
Phillips, who diagnosed Rogers as having a central disc herniation,
rather than just a sprain/strain, at the L4-5 intervertebral disc.
In order to maintain his suit, Rogers has challenged the validity
of the release on the basis of mutual mistakes made by the parties.
II. Discussion
“This court reviews the grant of a summary judgment motion de
novo, using the same criteria used by the district court in the
first instance.” Fraire v. City of Arlington, 957 F.2d 1268, 1273
(5th Cir.1992). Summary judgment is proper if the evidence shows
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. See FED.
3
R. CIV. P. 56(c).
The parties agree that Rogers’s claim against Cheramie arises
under general maritime law and that therefore federal law governs
the validity of the release. See Mid-South Towing Co. v. Har-Win,
Inc., 733 F.2d 386, 389 (5th Cir.1984). They do not agree as to
which party has the burden of proof regarding validity of the
release. The district court concluded that Rogers “must be treated
as an ordinary employee and, since he is the one attacking the
release, he must bear the burden of proving that the release is
invalid.” In arguing that the district court correctly decided
this issue, Cheramie cites to Mid-South Towing, 733 F.2d at 392,
which states that “[o]ne who attacks a settlement must bear the
burden of showing that the contract he has made is tainted with
invalidity, either by fraud practiced upon him or by mutual mistake
under which both parties acted.” Rogers however, argues that the
burden is on Cheramie to prove the validity of the release. He
relies on Robertson v. Douglas Steamship Co., 510 F.2d 829, 835
(5th Cir.1975), in which this court stated that “[f]or purposes of
determining the applicability of general maritime law, a
longshoreman injured in the course of his duties stands in the same
position as a seaman with respect to 'the traditional remedies of
the sea.'” The party that sets up a seaman’s release has the
burden of showing “that it was executed freely, without deception
or coercion, and that it was made by the seaman with full
understanding of his rights.” Charpeniter v. Fluor Ocean Services,
Inc., 613 F.2d 81, 84 (5th Cir.1980)(internal quotation and
4
citation omitted); see also Robertson, 510 F.2d at 835 n.4 (“the
party who attempts to rely on a maritime release has the burden of
proving its validity”). Here, the mere fact that Rogers was a
passenger on a crew boat when his injuries occurred does not
convince us that he should be entitled to the special status of a
seaman. See Ketnor v. Automatic Power, Inc., 850 F.2d 236, 238
(5th Cir.1988)(holding that plaintiff that utilized boat merely for
transportation to and from various rigs on which he worked, was
“merely a passenger,” and thus not entitled to seaman status). We
likewise “see no compelling reason to apply more stringent
standards to longshoremen’s releases for injuries sustained aboard
ship than to those entered into by longshoremen and other workers
for injuries sustained ashore.” Capotorto v. Compania Sud
Americana de Vapores, Chilean Line, Inc., 541 F.2d 985, 987 (2nd
Cir.1976). However, regardless of which party here bears the
burden of proving the validity/invalidity of this release, Rogers’s
claims fail for other reasons.
Rogers ultimately seeks to have his release set aside for two
separate reasons. First, he contends that the parties were under
a mutual mistake as to the nature of his injuries when he signed
the release. Thus, Rogers asserts, the release should be set aside
because both parties based the settlement on the diagnosis of a
cervical strain/sprain and not the later diagnosis of a herniated
disc.
Roger's assertion is controlled by this court's decision in
Robertson v. Douglas Steamship Co., 510 F.2d 829 (5th Cir.1975), in
5
which we held:
While it is true that a release should not be set
aside for mutual mistake concerning the extent and
outcome of injuries, which are necessarily future rather
than present facts, it does not follow that a release
should not be set aside for mutual mistake concerning the
nature of the injuries, which is a present fact. The
legal distinction must rest on the medical difference
between diagnosis and prognosis.
Id. at 836. Here, we must therefore determine if the parties made
a mutual mistake concerning only the extent and outcome of Rogers’s
injuries, or whether there was a mistake concerning the very nature
of his injuries. On this issue, the Robertson Court went on to
further hold:
A longshoreman who signs a release may have to take
his chances that a properly diagnosed condition was the
subject of an overly optimistic prognosis and that his
injuries may be more serious and extensive than
originally thought. However, the law does not require
him to take his chances when the diagnosis is itself
erroneous and he is suffering from a disease entirely
different in nature than that diagnosed.
Id. (emphasis added). In the case at bar, Rogers settled his
claims fully aware that he was suffering from a spine injury. More
precisely, he settled fully aware that he had an injured L4-5 disc.
We find that any mistake made in this case was only to the extent
and eventual outcome of Rogers’s injuries. We do not believe that
Rogers settled his claims on the basis of a condition entirely
different in nature than that of which he was diagnosed. He took
his chances that his injuries would not be more serious and
extensive than originally thought. See id.; Strange v. Gulf and
South American Steamship Co., Inc., 495 F.2d 1235, 1237 (5th
Cir.1974)(noting that the uncertainty of the eventual extent and
6
outcome of the injuries involved in a personal injury claim is the
very thing that parties seek to foreclose by settling). Therefore,
we hold that there was no mutual mistake in Rogers’s diagnosis that
would justify setting aside his release.
Second, Rogers contends that the parties' failure to obtain
the approval of his employer prior to the settlement of his claim
was a second mutual mistake which operated to void the release.
For this assertion, Rogers relies on 33 U.S.C. 933(g)(1) of the
Longshoremen’s and Harbor Workers’ Compensation Act (“the LHWCA”),
which states that a worker must have the written approval of his
employer if he desires to settle a claim with a third-party
tortfeasor for less than the total compensation owed by the
employer. See also Peters v. North River Ins. Co. of Morristown,
N.J., 764 F.2d 306, 311 (5th Cir.1985). The record reflects that
Rogers’s employer paid $11,083.86 in benefits to Rogers. Because
the settlement with Cheramie was less than the compensation paid by
Rogers’s employer, Rogers argues that the release violated §
933(g)(1). A release executed in violation of § 933(g)(1) triggers
the forfeiture mechanism of 933(g)(2). Consequently, Rogers’s
failure to notify his employer would result in the forfeiture of
any future benefits, including medical benefits that he might have
been entitled to under the LHWCA. See Estate of Cowart v. Nicklos
Drilling Co., 505 U.S. 469, 470 (1992). Accordingly, the very fact
that this forfeiture mechanism exists defeats Rogers’s contention
that a release in violation of § 933(g) is void ab initio. We
agree with the district court’s reasoning that this section
7
“clearly contemplates the possibility of a valid third-party
settlement without employer consent.” Rogers v. Trico Marine
Assets, Inc., 969 F.Supp. 384, 389 (E.D. La.1997). Therefore,
Rogers fails to persuade that the failure to obtain such approval
constituted a mutual mistake that would void the release.
III. Conclusion
For the foregoing reasons, we find that the district court
was correct in granting summary judgment on behalf of appellee
Cheramie. After a de novo review, we conclude that Rogers has
failed to demonstrate any genuine issue of material fact on
whether or not his release should be set aside on the basis of
mutual mistake. Because appellee Cheramie was therefore entitled
to judgment as a matter of law, we AFFIRM.
8