Copeland v. Offshore Marine Contractors, Inc., No. 2:2015cv00027 - Document 49 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying 38 Motion for Partial Summary Judgment. Signed by Judge Susie Morgan. (bwn)
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Copeland v. Offshore Marine Contractors, Inc. Doc. 49 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CH ASE COPELAN D , Pla in tiff CIVIL ACTION VERSU S N o . 15-2 7 OFFSH ORE MARIN E CON TRACTORS, IN C., D e fe n d an t SECTION "E"( 3 ) ORD ER AN D REAS ON S Before the Court is a m otion for partial sum m ary judgm ent filed by Defendant, Offshore Marine Contractors, Inc. (“OMC”). 1 OMC seeks sum m ary judgm ent on Plaintiff’s m aintenance-and-cure claim under the Fifth Circuit’s decision in McCorpen v. Central Gulf Steam ship Corp., 396 F.2d 547 (5th Cir. 1968). 2 The m otion is opposed, 3 and oral argum ent was held on April 4, 20 16, at 9:0 0 a.m . For the reasons that follow, the m otion for partial sum m ary judgm ent is D EN IED . BACKGROU N D This is a m aritim e personal injury case. Plaintiff Chase Copeland claim s that, on April 23, 20 13, while working as an engineer for OMC on board a jack-up vessel, the L UCAS B OURG, he was “in jured while applying a heat shield to the engin e when he slipped and fell off of a three-inch wide pipe on which he was standing.”4 Copeland argues the in cident resulted from OMC’s negligence in “failing to furnish . . . a safe place to work by requiring its em ployees on the L UCAS B OURG to stand on a three-in ch wide pipe to com plete their job duties.”5 Copeland contends that, as a result of the incident, he suffered “serious, 1 R. Doc. 38. See R. Doc. 38 at 1. 3 R. Doc. 41. 4 R. Doc. 1 at 1. 5 R. Doc. 1 at 2. 2 1 Dockets.Justia.com disabling[,] and perm anent injuries to his hand and neck.”6 Copeland filed the instant lawsuit on J anuary 1, 20 15, to recover for his alleged hand an d neck injuries, asserting causes of action for negligence, unseaworthiness, and m aintenance and cure, as well as punitive dam ages for the willful and wanton failure to pay m aintenance an d cure. 7 Copeland has since clarified that his m aintenance-and-cure claim is only with respect to his alleged neck injury. OMC filed this m otion for partial sum m ary judgm ent on February 29, 20 16. OMC seeks sum m ary judgm ent on Copeland’s m aintenance-and-cure claim with respect to his neck injury, arguing Copeland is not entitled to m aintenance an d cure under McCorpen v. Central Gulf Steam ship Corp., 396 F.2d 547 (5th Cir. 1968). 8 OMC argues, because Copeland intentionally concealed evidence of significant pre-existing injuries to his n eck when com pleting his em ploym ent application, Copeland is not entitled to m aintenance and cure under the Fifth Circuit’s decision in McCorpen. 9 In sum , OMC seeks sum m ary judgm ent on Copeland’s claim for m aintenance and cure for his neck in jury via the “McCorpen defense.” SU MMARY JU D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”10 “An issue is m aterial if its resolution could affect the outcom e of the action.”11 6 R. Doc. 1 at 3. R. Doc. 1 at 3. 8 See R. Doc. 38 at 1. 9 R. Doc. 38 at 1. OMC also contends Copeland has an extensive history of back problem s, which he failed to reveal to OMC prior to being hired. R. Doc. 38-2 at 1. However, Copeland is not seeking dam ages for injuries to his back in this case, so Copeland’s alleged history of back problem s and whether he failed to disclose those problem s to OMC are irrelevant. The Court need not address OMC’s m otion insofar as it contends Copeland concealed prior back in juries from OMC. 10 Fed. R. Civ. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 11 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 7 2 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the evidence.”12 All reasonable inferences are drawn in favor of the non-m oving party. 13 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 14 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”15 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 16 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, as in this case, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the nonm ovant’s claim , or (2) affirm atively dem onstrating that there is no evidence in the record to establish an essential elem ent of the non-m ovant’s claim . 17 If the m ovant fails to 12 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8 ). See also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 13 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 14 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 15 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 16 Celotex, 477 U.S. at 322– 24. 17 Id. at 331– 32 (Bren nan, J ., dissentin g). 3 affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 18 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”19 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”20 LAW AN D AN ALYSIS OMC m aintain s, under the Fifth Circuit’s decision in McCorpen, that Copeland is not entitled to be paid m aintenance an d cure for his n eck injury because he intentionally concealed “evidence of significant pre-existin g injuries which, had they been disclosed, would have resulted in [Copeland] not being hired.”21 “Maintenance and cure is a contractual form of com pensation afforded by the general m aritim e law to seam en who fall ill or are injured while in the service of a vessel.”22 A seam an’s em ployer m ay, however, rely on certain legal defenses, such as the “McCorpen defense,” to deny claim s for m aintenance and cure. 23 In McCorpen, the Fifth 18 See id. at 332. Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 20 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998 ) (citations and internal quotation m arks om itted). 21 R. Doc. 38 at 1. See generally R. Doc. 38-2. 22 Jauch v. N autical Servs., Inc., 470 F.3d 20 7, 212 (5th Cir. 20 0 6). 23 Brow n v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 20 0 5). See also Lett v. Om ega Protein, Inc., 487 F. App’x 839, 848 (5th Cir. 20 12). 19 4 Circuit concluded that, while m ainten ance and cure m ay be awarded to a seam an who has suffered from a pre-existing injury, a seam an forfeits his or her right to m aintenance an d cure when he or she fails to disclose certain m edical facts, or m isrepresents those facts, when asked about them in connection with an em ploym ent application. 24 An em ployer will prevail on this defense, absolving the em ployer of its obligation to an injured seam an, by establishing: (1) the seam an intention ally concealed or m isrepresented inform ation concern ing a prior m edical condition or in jury; (2) the m isrepresented or concealed inform ation was m aterial to the em ployer’s decision to hire the seam an; and (3) a causal connection between the non-disclosed injury or condition and an injury or condition com plained of in the suit at bar. 25 OMC, as the party seeking sum m ary judgm ent, has the burden of establishing there are no m aterial facts in dispute and, therefore, OMC is entitled to judgm ent as a m atter of law on Copeland’s m aintenance-and-cure claim . OMC’s sum m ary-judgm ent burden, as applied to the McCorpen defense, requires OMC to establish the absence of disputed m aterial facts with respect to each of the three prongs of the defense. OMC is unable to do so with respect to McCorpen’s first prong, and sum m ary judgm ent m ust be denied for that reason. The first prong of the McCorpen defense—the “intentional con cealm ent” prong— is “an essentially objective inquiry,” and does not require a finding of subjective intent to 24 McCorpen v. Central Gulf Steam ship Corp., 396 F.2d 547, 549 (5th Cir.), cert. denied, 393 U.S. 894 (1968). See also Brow n , 410 F.3d at 170 – 71, 73 (quoting McCorpen , 396 F.2d at 549 (“[W]here the [em ployer] requires a seam an to subm it to a pre-hiring m edical exam ination or interview and the seam an intentionally m isrepresents or conceals m aterial m edical facts, the disclosure of which is plainly desired, then he is not entitled to an award of m aintenance and cure.”)). 25 McCorpen, 396 F.2d at 548– 49. See also Johnson v. Cenac Tow ing, Inc., 544 F.3d 296, 30 1 (5th Cir. 20 0 8) (citations om itted); Brow n , 410 F.3d at 171. 5 conceal or m isrepresent m edical inform ation on the part of the seam an. 26 “McCorpen’s intentional concealm ent prong neither necessarily turns on credibility nor requires a subjective determ ination.”27 “Failure to disclose m edical inform ation in an interview or questionnaire that is obviously designed to elicit such inform ation satisfies the ‘intentional concealm ent’ requirem ent.”28 In this case, the parties strongly disagree on the application of this prong of the McCorpen defense, i.e., whether Copeland, in connection with his em ploym ent application, intentionally m isrepresented or concealed m edical inform ation concerning pre-existing injuries to his neck. Copeland applied for a position as an unlicensed engineer at OMC on J une 18 , 20 12. 29 The parties agree that, in connection with his em ploym ent application, Copelan d was required to com plete certain pre-em ploym ent m edical questionnaires and to undergo a pre-em ploym ent physical. 30 One such questionnaire was called the “Second Injury Fund – Em ployee Medical History Questionnaire.”31 By its own term s, the specific purpose of this questionnaire was to determ ine whether the prospective em ployee suffered from any pre-existing m edical conditions or disabilities. 32 A question in the Em ployee Medical History Questionnaire was: “Have you ever had back trouble or injury to your back, head or neck?”33 Copeland answered “Yes,” explaining he had broken his neck in the past. 34 26 Brow n , 410 F.3d at 174. Id. at 175. 28 Id. at 174 (citing Vitcovich v. OCEAN ROVER, O.N ., 10 6 F.3d 411 (9th Cir. 1997)). 29 R. Doc. 38-1 at 1, ¶1; R. Doc. 41-1 at 1, ¶1. 30 R. Doc. 38-1 at 1, ¶¶2– 3; R. Doc. 41-1 at 1 ¶¶2– 3. 31 See R. Doc. 38-2 at 4; R. Doc. 38-3 at 4– 5. 32 R. Doc. 38-3 at 4. The questionnaire stated: “If a work-related in jury or disability is caused, or m ade worse, by a ‘pre-existing’ condition, [OMC] m ay be able to seek partial reim bursem ent of the benefit dollars paid to you, or on your behalf, from the Louisiana Secon d Injury Fund.” R. Doc. 38-3 at 4. The questionnaire further noted that, “[i]n order for [OMC] to be considered for reim bursem ent from the Second Injury Fund, it has to show that it knowingly hired or knowin gly retained the em ployee with a pre-existin g disability. To establish this fact, [OMC] requires all em ployees to com plete the attached questionnaire.” R. Doc. 38-3 at 4. 33 R. Doc. 38-3 at 5. 34 R. Doc. 38-3 at 5 (em phasis added). 27 6 Another question asked: “What operations, accidents, broken bones, strains or serious illnesses have you had?”35 Again, Copeland responded that he had, at som e point in his past, sustained a “broken neck.”36 OMC does not dispute that, in filling out this questionnaire, Copeland disclosed he had previously sustained what he referred to as a broken neck. In addition to the Em ployee Medical History Questionnaire, Copelan d was required to com plete a second questionn aire prior to undergoing a pre-em ploym ent physical adm inistered by Com plete Occupational Health Services. In the Com plete Occupational questionnaire, Copeland answered “no” to whether he currently or “significantly in the past” had an “injured back/ back pain” or an “injured neck/ neck pain.”37 OMC em phasizes Copeland’s responses to this pre-em ploym ent questionnaire to argue that Copeland intentionally concealed pre-existing neck injuries. OMC argues, based on Copeland’s responses to the Com plete Occupation al questionnaire, that Copeland “intentionally hid from [OMC] . . . overwhelm ing evidence[] of chronic neck problem s.”38 OMC contends it was unaware Copeland visited a num ber of physicians for neck pain in the years and m onths leading up to his em ploym ent with OMC, nor was OMC aware that Copeland allegedly suffered an on -the-job injury while working for a different com pany in J une of 20 11. 39 In support, OMC points to Copeland’s certified m edical records, which show that Copeland sought treatm ent for neck pain in Decem ber of 20 0 6, J anuary of 20 0 7, February of 20 0 9, and J anuary of 20 12. 40 Copelan d does not dispute that he sought treatm ent for neck pain, nor does Copeland dispute that 35 R. Doc. 38-3 at 5. R. Doc. 38-3 at 5 (em phasis added). 37 R. Doc. 38-11 at 2. 38 R. Doc. 38-2 at 1. 39 See generally R. Doc. 38-1 at 2– 4. 40 See R. Doc. 38-1 at 2– 3, ¶¶12– 22. 36 7 all of his consultations with physicians regarding his neck were not disclosed to OMC. 41 Instead, Copeland notes that OMC was aware that Copeland reported he sustained a broken neck in his past. 42 Copeland specifically indicated on the Em ployee Medical History Questionnaire that he had broken his neck in the past, which put OMC on notice that Copeland, potentially, had a serious neck condition which could cause problem s in the future. OMC cites Lett v. Om ega Protein Corp. 43 and W im berly v. Harvey Gulf International Marine, LLC, 44 as support for its argum ent that Copeland, in disclosing his prior neck injury in the Em ployee Medical History Questionnaire, m ade only a “tepid adm ission” of his neck problem s, which am ounts to intentional concealm ent under McCorpen. 45 OMC contends, although Copeland disclosed that he had previously broken his n eck in the Em ployee Medical History Questionnaire, that disclosure was only a “tepid adm ission” of his neck problem s, and Copeland was required to do m ore. In particular, OMC argues Copeland should have revealed and elaborated on his neck problem s in the second pre-em ploym ent questionnaire and should have disclosed the condition to the physicians conducting his pre-em ploym ent physical. That he did not further reveal his neck problem s, according to OMC, am ounts to intentional concealm ent. In sum , OMC m aintains that, although Copeland disclosed in the Em ployee Medical History Questionnaire a broken neck in years past, this disclosure was not enough, as the Court m ust look to what Copeland said, or did not say, in the second questionnaire and during his pre-em ploym ent physical. The Court is not persuaded by this argum ent. Lett is not a 41 R. Doc. 41-1 at 2, ¶¶12– 22. See generally R. Doc. 41-1. 43 487 F. App’x 839 (5th Cir. 20 12). 44 No. 14-120 8, 20 15 WL 50 8 9538 (E.D. La. Aug. 27, 20 15). 45 R. Doc. 38-2 at 13 – 14. 42 8 “tepid adm ission” case, as the seam an in that case altogether failed, in both a preem ploym ent questionnaire and during his pre-em ploym ent physical, to disclose preexisting neck injuries. 46 W im berly adm ittedly is a “tepid adm ission” case, as the seam an disclosed back pain in a pre-em ploym ent questionnaire but failed to elaborate upon or further explain that condition in the questionnaire or during his pre-em ploym ent physical. 47 This case is distinguishable from both Lett and W im berly , as Copeland n either com pletely denied having a pre-existing condition as in Lett, nor did Copeland’s disclosure am ount to a “tepid adm ission” of a pre-existing condition as in W im berly . Instead, Copeland clearly and without question disclosed a serious neck injury, i.e., a broken neck. The Court finds support for its decision in Gregory v. Kirby Inland Marine, LP, a case decided by this district in which the seam an disclosed a prior injury in the com m ents section of a health questionnaire but failed to disclose or elaborate on the injury in response to other questions. 48 The Gregory court noted the questionnaire did not “instruct the prospective em ployee to list every single injury or pain he has ever endured. Neither does any case law presented by the parties or reviewed by the Court indicate such a stringent requirem en t.”49 The Gregory court concluded: “The com m ents section of the Health Questionnaire indicated an elbow injury; hence Defen dant Kirby was on notice during the application process that Plaintiff had injured his elbow. Accordingly, the Court finds that Plaintiff did not conceal the fact that his elbow had been injured prior to his em ploym ent.”50 As in Gregory , Copeland disclosed his prior injury—a broken neck—in 46 Lett, 487 F. App’x at 848. W im berly , 20 15 WL 50 89538, at *4– 5. 48 Gregory v. Kirby Inland Marine, LP, No. 0 8-4183, 20 0 9 WL 140 2229, at *7 (E.D. La. May 14, 20 0 9). 49 Id. 50 Id. 47 9 the Em ployee Medical History Questionnaire. Although Copeland did not disclose or elaborate on his neck problem s in the second questionnaire or during his physical, Copeland’s disclosure was sufficient to put OMC on notice during the application process of his previous neck injury. The Court finds OMC has not established that Copeland intentionally concealed or m isrepresented pre-existing injuries to his neck. Copeland clearly and unam biguously disclosed the fact that he previously had a serious neck injury. Though OMC argues Copeland n ever actually broke his neck but only believed, based on conversations with his m other, that he sustained such an injury, this argum ent is irrelevant. 51 Copeland disclosed the injury, regardless of whether the disclosure was m edically accurate, and OMC was on notice that Copeland potentially had serious problem s with his n eck. Nevertheless, OMC hired Copeland. OMC has not m et its burden on McCorpen’s first prong. Because OMC has not satisfied the “intentional concealm ent” prong of the McCorpen defen se, OMC cannot prevail, an d the Court need not address M cCorpen’s rem aining prongs. Sum m ary judgm ent is denied. CON CLU SION For the foregoing reasons, IT IS ORD ERED that OMC’s m otion for partial sum m ary judgm ent be and hereby is D EN IED . N e w Orle an s , Lo u is ian a, th is 11th d ay o f Ap ril, 2 0 16 . ____________________ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 51 See R. Doc. 38-2 at 4; R. Doc. 38-13 at 12 (Deposition of Chase Copeland). 10
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