Trupiano v. Captain Gus & Bros.

USCA1 Opinion









December 15, 1994 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

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No. 94-1690

THOMAS TRUPIANO,

Plaintiff, Appellant,

v.

CAPTAIN GUS & BROTHERS, INC.,

Defendant, Appellee.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert B. Collings, U.S. Magistrate Judge] _____________________

_________________________

Before

Selya, Circuit Judge, _____________

Coffin, Senior Circuit Judge, ____________________

and Stahl, Circuit Judge. _____________

_________________________

Joseph M. Orlando, with whom Orlando & Associates was on __________________ _____________________
brief, for appellant.
Thomas J. Muzyka, with whom Robert E. Collins and Clinton & _________________ _________________ _________
Muzyka, P.C. were on brief, for appellee. ____________

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Per Curiam. Following an evidentiary hearing in which Per Curiam. __________

a magistrate judge awarded plaintiff-appellant Thomas Trupiano, a

seaman, maintenance and cure,1 Trupiano appealed. His appeal

presents what amounts to a single factbound issue: whether the

court below erred in failing to hold defendant-appellee, Captain

Gus & Bros., Inc., liable for punitive damages and attorneys'

fees in consequence of its refusal to pay maintenance and cure to

Trupiano when and as due.

Plaintiff, of course, had the burden of proving

defendant's liability for these imposts by showing that defendant

was "callous, willful, or recalcitrant in withholding

[maintenance and cure] payments." Robinson v. Pocahontas, Inc., ________ ________________

477 F.2d 1048, 1051 (1st Cir. 1973). Given that burden, given

the conflicted nature of the evidence, given the gaps in the

available information that existed up to the time of trial, and

given, especially, the deferential standard of review that

pertains, see, e.g., DiMillo v. Sheepscot Pilots, Inc., 870 F.2d ___ ____ _______ ______________________

746, 749 (1st Cir. 1989) ("In maritime cases, we review factbound

findings stemming from a bench trial in accordance with the

`clearly erroneous' principle of Fed. R. Civ. P. 52(a)."), we

cannot say that the district court clearly erred in finding that

defendant's failure to make timely payments of maintenance and

cure, though eventually adjudged to be without adequate legal

basis, did not justify the imposition of punitive damages and/or
____________________

1The evidentiary hearing followed a jury trial on issues
involving claims of unseaworthiness and Jones Act liability.
Those issues are not before us.

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attorneys' fees. After all, when there are two plausible sets of

inferences that can be drawn from the facts, the trier's choice

between them cannot be clearly erroneous. See Anderson v. City ___ ________ ____

of Bessemer City, 470 U.S. 564, 573-74 (1985); Cumpiano v. Banco _________________ ________ _____

Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990). So it is ______________

here.

We need go no further.2 Because it "clearly appear[s]

that no substantial question is presented" by this appeal, 1st

Cir. R. 27.1, the judgment below can be summarily



Affirmed. Costs to appellee. Affirmed. ________























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2To be sure appellant also complains that the lower court
improperly denied his motion to amend in order to add the boat-
owner's insurer as a party defendant. We think that ruling was
well within the magistrate's discretion. In any event, the
insurer's status as a party obviously would not have affected the
outcome either of the case or of the appeal.

3