Contribution/Indemnity Claim for Maintenance and Cure from Third Party Not Barred by Second Accident

Poincon v. Offshore Marine Contractors, Inc., 5 Cir., No. 20-30765, 2021 WL 3578614, 2021 U.S. App. LEXIS 24438 * (5^th Cir., Aug. 13, 2021)

Sonia Poincon, a cook employed by Offshore Marine Contractors, Inc. (OMC) was first injured in 2015 serving as a member of the crew of M/V LOUIS J. EYMARD, owned by United Community Bank (UCB), when a vessel owned by REC Marine Logistics, L.L.C. (REC) collided with the vessel on which she was serving. As a result, she injured her neck and arm.^[1] She sought medical care but did not seek maintenance and cure.^[2] She returned to work but was re-injured in 2018 while working on another vessel, M/V TOBY DODD, owned by OMC, “when attempting to break through ice that had accumulated in the vessel's freezer.”^[3] She sought medical treatment after the second incident and subsequently underwent surgery for her neck in 2018 and her low back in 2019.^[4]

Poincon filed suit in 2018 against OMC, UCB and REC to recover damages for the 2015 incident and solely against OMC, her employer and owner of M/V TOBY DODD for the 2018 accident. The trial court then severed the 2015 claim from the 2018 claim with OMC as the sole defendant for the 2018 accident. OMC then filed a third party demand against REC for indemnity/contribution for any maintenance and cure it may owe Poincon for the 2018 accident.^[5] The trial judge then granted the Motion for Summary Judgment of REC dismissing the indemnity/contribution claim of OMC.^[6]

First, the appeals court addressed whether it had jurisdiction. OMC premised appellate jurisdiction on 28 U.S.C. § 1291(a)(3).^[7] The court requested supplemental briefs on the jurisdictional issue and whether that statute applied. In the meantime, OMC requested the trial court to certify its order granting summary judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure^[8] which the court did.^[9]

The Fifth Circuit panel held that the suit is a civil suit and not within admiralty jurisdiction. The plaintiff filed a statutory claim under the Jones Act and other maritime claims under General Maritime Law. Here, as the plaintiff did not elect admiralty jurisdiction under Rule 9 (h), and asserted a Jones Act claim, federal question jurisdiction exists pursuant to 28 U.S.C. § 1331.^[10] In addition, she requested a jury with no indication that she wished to proceed under the court’s admiralty jurisdiction. The third-party claim of OMC against REC does not alter this.^[11] Hence the case is a civil suit. Though there is no jurisdiction under 28 U.S.C. § 1292(a)(3) and OMC requested the trial court to certify its order pursuant to Rule 54(b), appellate jurisdiction exists under that rule of the FRCP.^[12]

Turning to the merits, the panel chastised the trial court for “relying on its own rule for contribution claims involving multiple accidents.”^[13] Savoie v. Lafourche Boat Rentals, Inc., 627 F.2d 722 (5^th Cir. Unit A 1980), Adams v. Texaco, Inc., 640 F.2d 618 (5^thCir. Unit A, 1980) and Bertram v. Freeport McMoran, Inc. 35 F.3d 1008 (5^th Cir. 1994) establish that a maritime employer may assert a contribution/indemnity claim for maintenance and cure if the employer can prove negligence of the third party and causation.^[14]Negligence is governed by whether a legal duty was breached, and causation is governed by common law principles of proximate cause and superseding cause.^[15]

The trial court crafted a new rule that a second accident bars a claim for indemnity or contribution for maintenance and cure rather than apply the law of causation to the issue.^[16] Here, the fact questions are whether and to what extent the first incident caused the need for maintenance and cure for the second accident. “When a third party injures a seaman in an initial accident and a subsequent accident then aggravates that injury, giving rise to the need for maintenance and cure, the subsequent accident raises the fact-bound question of the extent to which the initial accident caused the need for maintenance and cure.”^[17] A fact issue exists as to whether the 2015 incident caused the injury which was aggravated by the 2018 accident.^[18] Summary judgment for REC on the affirmative defense of superseding cause was reversed, and the matter was remanded to the district court.^[19]

 Note:  Poincon, OMC and REC settled and dismissed the claim arising from the 2015 accident.^[20]

            A copy of the opinion may be found at: 

https://www.ca5.uscourts.gov/opinions/pub/20/20-30765-CV0.pdf

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^[1] For a full description see:  Poincon v. Offshore Marine Contrs., Inc., 493 F. Supp. 3d 523, 526 (E.D. La. 2020) 

^[2] Id.

^[3] Id.

^[4] Poincon v. Offshore Marine Contrs., Inc., 2021 WL 3578614 at *1 (5^th Cir.2021)

^[5] Id.

^[6] 2021 WL 3578614 at *2

^[7] “The courts of appeals shall have jurisdiction of appeals from: (3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.”

^[8] “When an action presents more than one claim for relief--whether as a claim, counterclaim, crossclaim, or third-party claim--or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.”

^[9] 2021 WL 3578614 at *2

^[10] 2021 WL 3578614 at *3

^[11] Id.

^[12] 2021 WL 3578614 at *4

^[13] Id.

^[14] 2021 WL 3578614 at *5 

^[15] Id.

^[16] Id.

^[17] 2021 WL 3578614 at *6

^[18] 2021 WL 3578614 at *7

^[19] 2021 WL 3578614 at *8

^[20] See:  Poincon v. Offshore Marine Contrs., Inc., 2020 U.S. Dist. LEXIS 217326 * 3, fn. 17; 2020 WL 6822535 *1, fn. 17 (E.D. La. 2020)