Phillip Crow v Cooper Marine & Timberlands Corporation


#1

[B]Case Name: *[/B][I]Phillip Crow v Cooper Marine & Timberlands Corporation
[/I][B]Date Decided: [/B]September 3, 2009
[B]Court: [/B]U.S.D.C. Southern District of Alabama
[B]Judge:[/B] Judge DuBose
[B]Citation:[/B] 2009 WL 2870222 (S.D.Ala.)[B]Background: [/B]

Phillip Crow (“Crow”), plaintiff, filed claims for negligence, unseaworthiness, maintenance, cure, and lost wages against defendant, Cooper Marine & Timberlands Corporation, (“Cooper”).

Crow worked for Cooper as a contract pilot on or about January 24, 2006. Prior to working for Cooper, Crow underwent a merchant mariner physical examination. Following the exam, Cooper retained Crow as a full-time pilot with a repeating schedule of 28 consecutive days working on the boat, followed by 14 days off.

Prior to working for Cooper Crow had no problems with his knees. While at a water park during vacation, while employed by Cooper, Crow injured his right knee.

On or about August 7, 2007, Crow, holding two 12-packs of drinks in his left hand and a plastic bag with strings over his right wrist, attempted to step down onto Cooper’s vesseland his foot slip and alleges he heard a “pop and grind” experiencing severe pain.

Crow initiated this action by filing as complaint against Cooper seeking recovery for damages allegedly caused when Crow injured his left knee as a result of slipping while stepping onto the port push knee of Cooper’s vessel.

Crow alleged that Cooper failed to provide a safe means of ingress and egress to the vessel.

Crow alleged that Cooper owes him 33k worth of past lost wages, 435k as compensation for future pain and suffering and 12k of maintenance payments all totaling $480,000.

[B]Issue:
[/B]Did the Court rule in favor of Crow finding that Cooper failed to provide safe means of ingress and egress to the vessel?

[B]Held:
[/B]Plaintiff alleged that he experienced severe knee pain while completing the ship.

The Court however found that Crow’s testimony lacked credibility on a number of specific points of fact.

Crow testified following the accident that he went straight to the galley where he told the crew about the accident.* However, this contradicted prior testimony that stated Crow carried some candy up to the wheelhouse after the accident.

Plaintiff also testified that “everyone was in the galley when he went into the galley” immediately after the accident, and also stated in his deposition that he went “straight to the galley” after the alleged accident. However, during the deposition, Crow stated there was “no one” in the galley after the accident.

Moreover, the Court found that Crow’s testimony materially contradicted the testimony of the Captain of the ship in which he was injured. Crow testified at trial that he never told the Captain that his left knee would require an operation. *The Captain however, testified that Crow immediately told him that he had just had surgery on his right leg upon boarding the vessel.

Additionally, Crow introduced testimony regarding his medical treatment, resignation, and subsequent work history.

Crow testified that following the alleged accident, he promptly visited his family physician who referred him to another doctor who performed surgery on his left knee on August 20, 2007. Following surgery Crow testified he relaxed at home for two weeks and underwent therapy for 4-6 weeks. Following therapy, Crow testified that his knee was still bothering him.

In January of 2009, Dr. Beach referred Crow to Dr. Solorio, the same physician that originally performed surgery on Crow’s knee. While Crow was being treated by Dr. Solorio, ChibbCo Equipment hired Crow as a part-time trip pilot where Crow earned $500 per day.

Following the second surgery Crow testified his left knee was “doing a lot better”, upon a check-up Crow was released to work [I]without restriction[/I].

As for Crow’s maintenance claim, the Court found that Crow was in the employ and service of Cooper when he injured his left knee in the Walmart store.

Both parties stipulated that during the time of maintenance, Cooper paid Crow $20/day. Cooper did not pay Crow maintenance after October 31, 2007.

The Court held, based on Dr. Solorio’s estimate, Crow’s statements regarding his condition at the trial on July 9, 2009, and Crow’s statement in post- trial brief that Crow reached maximum medical improvement on June 30, 2009.

Both parties stipulated that Cooper paid for Crow’s post-injury medical treatment by Dr. Nichols and Dr. Davis. When Crow began work in November 2007, he did not make any demands for recommencement of maintenance and cure from the time he resigned from until January or February of 2009.

The Court found that Cooper was not obligated to pay Crow for any treatment which he has not already been paid. Crow presented no evidence establishing the amounts it claimed Cooper owed for some of Crow’s treatment.

Finally, this Court denied Crow’s attorney’s fees request because there was no evidence that Cooper acted in bad faith, callously, or unreasonably when it ceased to pay Crow maintenance and cure.

As a result this Court found that Crow was entitled to recover $2,420 from Cooper in maintenance.

[B]Comment:
A shipowner is obliged to pay maintenance and cure as a result of the contract between the seaman and the shipowner or vessel, to pay a seaman, who is injured [I]while in the service of a ship[/I], wages to the end of the voyage and subsistence, lodging, and care to the point where the maximum cure attainable has been reached. [/B]

[B]It also extends to the obligation to pay for medical expenses and to take all reasonable steps to insure that the seaman, when he is injured/ill, receives proper care. [/B]

[B]In order for a seaman to recover maintenance and cure, the plaintiff must show (1) an injury occurred while plaintiff was in service of the vessel which plaintiff was employed as a seaman, and (2) the injury or illness occurred without willful misconduct.[/B]

[B]A vessel owner who has dutifully paid maintenance and cure up until the time an injured seaman resigns from his/her employ is not bound to pay maintenance during subsequent periods. [/B]

[B]Steve Gordon
http://www.offshoreinjuries.com [/B]

More…