Collateral Source Rule Breached in Maritime Tort
Collateral Source Rule Breached in Maritime Tort
By: Arthur Crais
Deperrodil v. Bozovic Marine Inc., No. 16-30009, 5th Cir., Nov. 17, 2017, 2016 WL 6810728, 2016 U.S. App. LEXIS 20636This ground-breaking decision just released by the Fifth Circuit represents an erosion of the impregnable wall of the collateral source rule, particularly with respect to the recovery of medical expenses and what is commonly known as the “medical write-off.” Specifically, whether the plaintiff-claimant may recover the full amount actually billed by the medical provider or only the net amount paid by the insurer.In this case, Deperrodil was a passenger on a vessel travelling from Venice, La. to an offshore platform. Being unable to board the platform, the vessel returned and ran into heavy seas. Plaintiff, a 70 year-old oilfield consultant, was in the wheelhouse with the captain when the vessel rode a high wave, resulting in Plaintiff sustaining back injuries. He received workers compensation benefits under the LHWCA and of more than $186,000 in medical expenses billed, the compensation carried paid just over $57,000. The trial court applied the strict collateral source rule and awarded the plaintiff the full amount of the medical expenses billed. (The decision of the trial court may be found at: 2015 U.S. Dist. LEXIS 165919, 2015 WL 8542829 (W.D. La. 2015)).The Court of Appeals stated that as a third party, the collateral source rule applied to the tortfeasor. However, the jurisprudence generally dealt with claims against employers and whether a benefit was a prerequisite of employment or to cover the employer’s liability. Thus, as there was no direct authority regarding the medical write-off, it looked to analogous state and other maritime authority.The most analogous maritime precedent was found in the Fifth Circuit’s decision in Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 3734 (5th Cir. 2012), as it involved a similar issue in the context of maintenance and cure, and that the rationale of the decision was “very persuasive because maritime cure and LHWCA insurance create similar obligations for employers.” The medical payments made by the compensation insurer “are collateral to the third party but only to the extent paid … .” Thus, the trial court committed error in awarding the full amount of medical expenses billed. The judgment was then reduced to the amount paid, slightly more than $57,000.The vessel owner also appealed the 90% fault apportioned to it. But, the appellate court found there was sufficient evidence to find the captain negligent in the operation of the vessel. In addition, Defendant appealed the above average calculation for the claim for future lost wage earning capacity as Plaintiff, who was 70 at the time of the incident, stated he would have worked until the age of 75. Having found that the extended work life of the plaintiff was fully developed and proven, the award for wages was not clear error.
