Seaman Entitled to Summary Judgment for Maintenance and Cure: Status Determined on Once Navigable Waterway

United States ex rel. Zugsberger v. T.L. Peterson, Inc., 2018 U.S. Dist. LEXIS 168446 (N.D. Ca. 2018)

By: Shelia Tolar

The United States District Court for the Northern District of California granted the plaintiff’s motion for partial summary judgment for maintenance and cure. Zugsberger was a commercial diver injured while employed by Galindo Construction Company, Inc. (Galindo Construction), a subcontractor to T.L. Peterson, Inc. The issues were whether the motion for partial summary judgment was appropriate and whether Zugsberger was injured during his employment for the purposes of the Jones Act, and, if so, the amount of maintenance and cure he is entitled to receive.Galindo Construction operated a mini-excavator from a barge to remove debris in the Drakes Estero. Zugsberger dove, without full dive or protective gear, into the water from another vessel owned by Galindo Construction and hooked a chain from the excavator to the debris. During his employment he saw a doctor for burns to his body likely caused by exposure to toxic chemicals. Zugsberger then filed his motion for partial summary judgment.Summary judgment is appropriate when there is no issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The burden of proof that there is no issue of material fact that might sway a trier of fact falls on the moving party.  Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Despite the defendant’s argument to the contrary, under admiralty principles, this burden is light, and the plaintiff must only prove that he "bec[ame] ill" or "injured while in the service of the ship." Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 538 (9th Cir. 2018) (quoting Vella v. Ford Motor Co., 421 U.S. 1, 4 (1975)). A shipowner has a broad responsibility to pay maintenance, even without negligence on his part. Barnes, 889 F.3d at 538. The shipowner must pay maintenance and cure until maximum cure, “recovery as complete as the injury allows,” is reached. Permanente S.S. Corp. v. Martinez, 369 F.2d 297, 298-99 (9th Cir. 1966). Because of the plaintiff’s light burden of proof and the broad duty of the defendant shipowner, summary judgment is appropriate.Three elements determine whether a plaintiff should receive pre-trial maintenance and cure.  The plaintiff bears the burden of proving that: (1) he “was employed as a seaman,” (2) he “was injured in the service of the ship,” and (3) he “is incurring expenses for medical treatment, board, and lodging.” Dean v. Fishing Co. of Alaska, Inc., 177 Wash.2d 399, 409 (2013).  To establish whether the plaintiff is a seaman for the purposes of the Jones Act, he need only show that his employment related to a ship in navigable waters. Defendant argued that Drakes Estero is no longer navigable. However, the Supreme Court held that "[w]hen once found to be navigable, a waterway remains so." United States v. Appalachian Elec. Power Co., 311 U.S. 377, 408 (1940).Plaintiff produced medical evidence to prove the injury in service to the ship required for the second factor. Plaintiff’s motion also included evidence of medical bills, and, of course, living expenses.  Because the plaintiff was employed as a seaman when he was injured and has incurred living and medical expenses since the injury, he is entitled to maintenance and cure.The plaintiff also moved that the court set the amount of maintenance and cure. To determine the amount, the court reviewed the monthly expenses submitted by the plaintiff, historical maintenance awards, the cost of living in the areas where plaintiff resides, and the recommended treatment plan. Since the plaintiff’s living expenses were equal to or below the actual cost of living in the areas where he resides, the amount is reasonable. The plaintiff has not reached maximum cure because he is unable to pay medical expenses related to the injury and has received only four of the recommended treatments.Because Zugsberger is a seaman pursuant to the Jones Act who was “injured while in the service of the ship” and incurred living and medical expenses after, the court granted the motion for partial summary judgment. Galindo Construction was ordered to pay past cure and maintenance for the period between the injury and the decision. The court also ordered maintenance and reasonable cure until Zugsberger reaches maximum cure, or until his maintenance rate may change, or the arrangement is modified after trial.