United States Court of Appeals
Fifth Circuit
F I L E D
REVISED NOVEMBER 28, 2006
November 09, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 05-30466
_____________________
JON ANTHONY JAUCH,
Plaintiff-Appellant,
versus
NAUTICAL SERVICES, INC.,
Defendant-Appellee/Cross-Appellant.
--------------------
Appeal from the
United States District Court
for the Eastern District of Louisiana
(2:01-CV-1261)
--------------------
Before WIENER and CLEMENT, Circuit Judges, and MARTINEZ, District
Judge.*
PER CURIAM:
Plaintiff-Appellant Jon Anthony Jauch was injured while
working as a seaman aboard a vessel owned and operated by
Defendant-Appellee Nautical Services, Inc. (“Nautical”). Jauch
sued Nautical in federal court seeking maintenance and cure under
general maritime law and damages under the Jones Act. After a
bench trial, the district court (1) denied Jauch’s demand for
maintenance and cure, (2) found Nautical and Jauch equally at fault
*
District Judge for the Western District of Texas, sitting by
designation.
for the accident, (3) awarded Jauch general and special damages,
and (4) denied Jauch prejudgment interest. Jauch contends that the
district court erred in (1) denying him maintenance and cure, (2)
finding him 50% at fault for the accident, (3) awarding him only a
portion of the past medical expenses that he sought, and (4)
denying him prejudgment interest. In its cross-appeal, Nautical
contends that the district court erred in finding it 50% at fault
and awarding Jauch any damages for medical expenses. We conclude
that the district court did not err in denying Jauch maintenance
and cure or apportioning fault equally between the parties;
however, the district court failed to provide sufficiently specific
reasons to allow us to review its award of past medical expenses
and its denial of prejudgment interest. Thus, we affirm the
district court’s order denying maintenance and cure and
apportioning fault, vacate its award of past medical expenses and
its denial of prejudgment interest, and remand to allow the
district court to consider those claims further and to provide more
detailed analysis and reasons for its original decisions or any
others that it may reach on remand.
I. FACTS & PROCEEDINGS
In October 1999, Nautical hired Jauch through a labor
supplier, Crew Services, Inc., to work as a deckhand on its
oceangoing tug, the M/V LA MADONNA. In connection with his
employment application, Jauch was required to undergo a physical
2
examination and complete a medical history questionnaire. On that
questionnaire, Jauch indicated that he had never had back, neck, or
spine trouble or received chiropractic treatment. In fact, Jauch
had injured his back several times, most recently in a work-related
incident six months earlier, after which he sought treatment from
both an orthopedist and a chiropractor and filed a workers’
compensation claim. Jauch also denied ever having any mental
health issues despite his lengthy history of psychiatric treatment.
The physician that conducted Jauch’s pre-employment physical
examination testified that, had Jauch responded truthfully to the
medical history questionnaire, he would not have been cleared to
work until he provided documentation of his earlier injuries and
additional evaluation was conducted. An operations manager for
Nautical also testified that Crew Services typically notifies
Nautical if a potential employee has disclosed a history of
physical or mental problems, at which point Nautical investigates
further before hiring the applicant.
Having no reason to doubt Jauch’s fitness for service, Crew
Services cleared him to join the crew of the M/V LA MADONNA
immediately after he completed his physical examination. One week
later, Jauch was injured while assisting the tug’s captain and two
other crew members move the vessel’s johnboat ashore for
maintenance. The johnboat was lashed to the rail of the vessel’s
second deck and had to be lowered to the first deck before being
moved. Jauch was not specifically instructed as to the proper
3
procedure for lowering the johnboat but attempted to follow the
captain’s lead. He and the captain released the lines securing the
johnboat on the second deck while the other crew members stood on
the first deck waiting to take the boat, which weighed less than
one hundred pounds. At some point, the line Jauch was holding
slipped, and he was pulled forward by the weight of the boat,
injuring his back. Despite reporting some pain shortly after the
incident, Jauch continued to work that day and even did some
weightlifting that afternoon.
In the days following the accident, Jauch’s pain worsened, and
he began to seek medical care. Nautical arranged for Jauch to see
an orthopedist who diagnosed and treated his injury as a
lumbosacral strain. After that orthopedist discharged him as
having reached maximum medical improvement, Jauch continued to
complain of back pain. He sought care from a series of doctors and
eventually underwent lumbar disc fusion surgery in May of 2002.
Jauch filed suit against Nautical in April 2001 in the Eastern
District of Louisiana, asserting claims for maintenance and cure
under general maritime law and for damages under the Jones Act.1
A bench trial was conducted in April 2003, and the court rendered
a judgment in favor of Jauch, awarding him $61,828.84 for past
medical expenses, $10,000 for future medical expenses, $44,619.24
1
Jauch also sought damages for breach of the warranty of
seaworthiness under general maritime law, but that claim was denied
and is not at issue in this appeal.
4
for past wage loss, $16,094.08 for future wage loss, and $250,000
for general damages. The district court apportioned fault equally
between Jauch and Nautical and declined to award Jauch prejudgment
interest. Accordingly, Nautical was ordered to pay Jauch
$191,271.08.
II. ANALYSIS
A. Issues on Appeal
Jauch contends that the district court erred in four ways:
(1) misapplying the McCorpen rule2 to deny his claim for
maintenance and cure benefits, (2) finding that his failure to take
proper care in lowering the johnboat rendered him 50% at fault for
the accident, (3) awarding him only $61,828.84 for past medical
expenses when he submitted bills at trial totaling $85,165.12, and
(4) denying him prejudgment interest absent a finding of “peculiar
circumstances” justifying its denial.
Nautical cross-appeals, contending that the district court
erred in finding it 50% at fault and awarding Jauch any damages for
medical expenses after having denied his claim for cure.
B. Discussion
1. Maintenance and Cure
a. Standard of Review
2
McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547 (5th Cir.
1968)(discussed fully infra).
5
In addressing a district court’s decision to deny or award
maintenance and cure payments, we review its findings of fact for
clear error and its conclusions of law de novo.3
b. Applicable Law
Maintenance and cure is a contractual form of compensation
afforded by the general maritime law to seamen who fall ill or are
injured while in the service of a vessel.4 The vessel owner’s
obligation to provide this compensation does not depend on any
determination of fault, but rather is treated as an implied term of
any contract for maritime employment.5 A seaman may recover
maintenance and cure even for injuries or illnesses pre-existing
the seaman’s employment unless that seaman knowingly or
fraudulently concealed his condition from the vessel owner at the
time he was employed.6
In cases involving pre-existing conditions, courts distinguish
between nondisclosure and concealment. If a vessel owner does not
require a pre-employment medical examination or interview, a seaman
must disclose his condition “when in [the seaman’s] own opinion the
shipowner would consider it a matter of importance.”7 If, however,
3
Silmon v. Can Do II, Inc., 89 F.3d 240, 242 (5th Cir. 1996).
4
McCorpen, 396 F.2d at 548.
5
Id.
6
Id.
7
Id. at 548-49.
6
the vessel owner does require the seaman to submit to medical
examination as part of its hiring process, a seaman who
misrepresents or conceals any material medical facts, disclosure of
which is plainly desired, risks forfeiture of his maintenance and
cure benefits.8 Concealment of one’s condition will not preclude
recovery of maintenance and cure under all circumstances. The
concealment defense will only prevail if the vessel owner can 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.9 If the vessel owner would have employed the
seaman even had the requested disclosure been made, concealment
will not bar the seaman’s recovery of maintenance and cure.
c. Conclusion
In this case, Nautical has clearly met the McCorpen test.
Jauch was required to undergo a physical examination and complete
a medical questionnaire specifically designed to elicit information
about past injuries or health problems. Jauch concealed numerous
instances of back injury and mental health problems, disclosure of
which would have either prevented his employment, or at least
8
Id. at 549.
9
Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171
(5th Cir. 2005).
7
delayed it, preventing his having been present on the M/V LA
MADONNA at the time of the accident. Past instances of back
injury, some severe enough to require extensive treatment, are
certainly facts material to Nautical’s decision to hire Jauch as a
deckhand, and the injury Jauch suffered is virtually identical to
the non-disclosed injuries. The district court’s application of
the McCorpen rule to bar Jauch’s recovery of maintenance and cure
in this case is unassailable.
2. Apportionment of Fault
a. Standard of Review
We review a district court’s finding of negligence and
apportionment of fault for clear error.10 The clear error standard
precludes reversal of a district court's findings unless we are
“left with the definite and firm conviction that a mistake has been
committed.”11
b. Applicable Law
Comparative negligence may apply to reduce a seaman’s recovery
on a Jones Act claim.12 A seaman’s contributory negligence will not
10
Verdin v. C & B Boat Co., 860 F.2d 150, 154 (5th Cir. 1988).
11
Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985).
12
Miles v. Melrose, 882 F.2d 976, 984 (5th Cir. 1989), aff'd
sub nom. Miles v. Apex Marine Corp., 498 U.S. 19 (1990).
8
bar his recovery, but may reduce the amount of damages owed
proportionate to his share of fault.13
c. Conclusion
We need not tarry long here. Both Jauch’s appeal and
Nautical’s cross-appeal on this issue must fail. The district
court had ample evidence to support its conclusion that (1) Jauch
was negligent in failing to remain attentive to his task and
failing to secure his rope while lowering the johnboat, and (2)
Nautical, through the tug’s captain, was negligent in failing to
instruct Jauch on the proper procedure for lowering the boat.
Moreover, the district court had the best opportunity to assess the
relative degree of fault that each party should bear for the
occurrence of the accident. Its decision to apportion fault
equally between Jauch and Nautical was not clearly erroneous.
3. Medical Expenses
a. Standard of Review
A district court's damages award is a finding of fact, which
this court reviews for clear error.14 The conclusions of law
underlying the award are reviewed de novo.15
b. Nautical’s Cross-Appeal
13
Id.
14
Nat'l Hispanic Circus, Inc. v. Rex Trucking, Inc., 414 F.3d
546, 552 (5th Cir. 2005)
15
Id.
9
We first address Nautical’s contention that, because the
district court denied Jauch’s claim for maintenance and cure, it
erred in awarding him damages for past medical expenses. Nautical
suggests that allowing Jauch to recover damages for past medical
expenses based on Nautical’s negligence would allow him “to get
through the back door (special damage award), what he could not get
through the front door (cure).” It is well-settled, however, that
“the seaman's right to receive, and the shipowner's duty to pay,
maintenance and cure is independent of any other source of recovery
for the seaman (e.g., recovery for Jones Act claims).”16
Accordingly, the district court’s denial of Jauch’s claim for
maintenance and cure had no legal effect on his entitlement to
recover Jones Act damages for his past medical expenses.
c. Computation of the Award
Jauch contends that the district court erred in awarding him
only a portion ($61,828.84) of the total amount ($85,165.12)17 of
medical expenses that he incurred as a result of the accident. In
its order, the district court did not explain how it calculated
Jauch’s medical expenses. It appears to have adopted the figure
16
Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1013 (5th
Cir. 1994).
17
On appeal, Jauch asserts that as of April 12, 2004, the date
that the parties’ post-trial memoranda were filed, he had actually
incurred over $93,000 in medical bills. Arriving at an exact
figure is not necessary to resolve this appeal, but we will use the
amount listed as the total on the summary of the bills submitted
into evidence at trial.
10
proposed by Nautical in its post-trial memorandum, but it did so
without expressly crediting Nautical’s justifications for
disallowing a portion of the amount Jauch sought. Had Nautical
presented a more thorough accounting of Jauch’s medical expenses,
we would be justified in attributing that calculus to the district
court, just as we would have done had Jauch been awarded the full
amount that he sought without comment by the district court.
Nautical’s post-trial memorandum, however, is insufficient for
this purpose. In it, Nautical mentions two of Jauch’s bills that
it assumes were paid by Nautical, but focuses primarily on the
expenses related to Jauch’s back surgery. Nautical argues that
Jauch should only recover the amount that Medicare actually paid
for the surgery because it found no evidence that the surgeon had
attempted to collect the balance of the bill from Jauch. After
calculating the difference between the two amounts, Nautical simply
asserts that “the true measure of plaintiff’s total medical bills
would be $61,828.84.” Even though Nautical’s proffered rationale
may provide an appropriate basis for calculating an award of
medical expenses, in this case, the numbers simply do not add up.
Merely subtracting (1) the difference in the amount Medicare paid
for Jauch’s surgery and the amount the surgeon charged, and (2) the
two bills allegedly paid by Nautical from the total amount of
medical expenses Jauch sought, does not produce the figure proposed
by Nautical and awarded by the district court. Whether the
Medicare-payment rationale was applied to other bills as well, or
11
some other amounts were disallowed, is simply unclear from the
record. Thus, a review of this award for error is not possible.
A further round of briefing and a more detailed finding by the
district court should resolve this matter easily enough.
4. Pre-Judgment Interest
a. Standard of Review
A district court’s ruling on prejudgment interest is reviewed
for abuse of discretion.18
b. Applicable Law
Prejudgment interest is compensation allowed by law as
additional damages for lost use of the money due as damages during
the lapse of time between the accrual of the claim and the date of
judgment.19 Prejudgment interest is not available on future
damages.20 Courts have generally recognized that the award of
prejudgment interest may be appropriate in Jones Act cases tried in
admiralty.21 Indeed, it is generally accepted that, under maritime
law, the award of prejudgment interest is “well-nigh automatic.”22
18
CenterPoint Energy Houston Elec., L.L.C. v. Harris County
Toll Rd. Auth., 436 F.3d 541, 550 (5th Cir. 2006).
19
Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 613
(5th Cir. 2000).
20
Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491
(5th Cir. 1985).
21
Domangue v. Penrod Drilling Co., 748 F.2d 999, 1000 (5th
Cir. 1984).
22
Reeled Tubing, Inc. v. M/V CHAD G, 794 F.2d 1026, 1028 (5th
Cir. 1986).
12
Such an award, however, has never been actually automatic.23 As the
Supreme Court noted in The Scotland, the “allowance of interest on
damages is not an absolute right. Whether it ought or ought not to
be allowed depends upon the circumstances of each case, and rests
very much in the discretion of the tribunal which has to pass upon
the subject . . . .”24 Particular circumstances will justify a
district court’s denial of prejudgment interest, chief among these
being a plaintiff's responsibility for “undue delay in prosecuting
the lawsuit.”25 Other circumstances may appropriately be invoked
as warranted by the facts of particular cases.
c. Conclusion
Jauch contends that no peculiar circumstances existed that
would warrant the district court’s denial of prejudgment interest
in this case. Nautical responds that Jauch was himself responsible
for any delay in his recovery because he waited a year and a half
to file suit and had the trial continued on three separate
occasions. The district court, however, gave no reasons for its
denial of prejudgment interest, stating simply that “the Court
exercises its discretion to not award prejudgment interest.” Thus,
23
City of Milwaukee v. Cement Div., Nat. Gypsum Co., 515 U.S.
189, 196 (1995).
24
118 U.S. 507, 518-519 (1886).
25
General Motors Corp. v. Devex Corp., 461 U.S. 648, 657
(1983).
13
we cannot conduct the required review and must remand for a more
detailed analysis.26
III. CONCLUSION
For these reasons, we (1) AFFIRM the district court’s order
denying Jauch’s claim for maintenance and cure and apportioning
fault equally between Jauch and Nautical, (2) VACATE the award of
past medical expenses and the denial of prejudgment interest and
REMAND to allow the district court to consider these claims further
and to provide more detailed analysis and reasons for such
decisions as it may reach.
26
See CenterPoint, 436 F.3d at 550 (district court’s summary
denial of prejudgment interest and attorney’s fees not reviewable
for abuse of discretion).
14