Charles H. DIse v. Express Marine Inc.
Pending before this Court were cross motions for summary judgment filed by plaintiff, Charles Dise ("Dise") and defendant, Express Marine Inc. ("EMI"). Dise brought an action to recover injuries sustained during his employment with EMI as a seaman and EMI countersued to recover payments made in connection with the accident that caused Dise's injuries.
Dise was employed as an assistant engineer on EMI's tug Baltimore. Dise's duties included standing watch in the engine room during specified shifts. While the Baltimore was docked at a terminal, the captain asked two employees to take a skiff out to take draft readings from the adjoining barge. Dise asked for permission to drive the skiff while another employee took readings. Dise drove the skiff while the other employee sat towards its bow to take readings.
While operating the boat Dise crashed into a bulkhead of the bridge, as it was around midnight, and claimed that without a proper spotlight on the skiff he could not make out the contour's of the bridge. The other employee testified that he could see the contours of the bridge and had warned Dise to slow down.
Following treatment Dise's leg became severely infected with bacteria requiring extensive surgery. Furthermore, Dise underwent multiple surgeries in an attempt to restore to his leg and reached maximum medical improvement on January 31, 2008 although he did not return to work for EMI.
Dise filed suit in this Court seeking damages under the Jones Act and various maritime doctrines. EMI counterclaimed for damage to the skill and for payments made to Dise for maintenance and cure, as well as indemnification for payments made to settle the other employee's claim. Both parties have moved for summary judgment.
Did this Court grant either motion for summary judgment?
EMI alleged that Dise was not acting within the course of employment when he ran the skiff up the river. This Court found that the course of employment under the Jones Act requires more than the "in the service of the ship" standard applicable to maintenance and cure. However, whether Dise was acting within the course of his employment at the time of the collision is a close question and requires a finding of fact, thus precluding summary judgment.
Furthermore, Dise alleged that EMI failed to maintain a safe working environment in four ways (1) EMI failed to train the other employee in small boat handling procedures that would have assisted him, (2) EMI failed to have written or verbal guidelines with respect to use of skiff, (3) the other employee failed to shine the skiff's spotlight on the bridge moments before the collision, and (4) Dise's inability to turn the skiff to the left at the critical moment just before the collision was probably a result of a defect in the skiff.
This Court found that Dise's 1st contention, that both employees had equivalent levels of training in the handling of small boats and both men had experience handling and operating small skiffs. The second contention, Dise failed to introduce evidence establishing that failure to procure written safety standards led to his collision. Third, Dise failed to show that the other employee had a duty to shine the spotlight and finally, under the fourth contention, Dise failed to show evidence, other than testimony establishing an accident occurred, did not establish a defect. Accordingly this Court granted EMI's motion for summary judgment on the Jones Act claim.
Moreover, Dise supported his unseaworthiness claim by using evidence similar to his Jones Act claim. For the same reason as above, this Court granted EMI's motion for summary judgment on Dise's claim for unseaworthiness. Dise failed to introduce evidence that the boat was unseaworthy and that if they did exist lead to Dise's injuries.
Finally, an employer is required to provide prompt medical treatment to a sick or injured crewman regardless of fault. Two ways this can be violated are (1) the shipowner fails to get a crewman to a doctor when it is reasonably necessary and the ship is reasonably able to do so and vicariously (2) if the shipowner selects a doctor who acts negligently.
Dise claims that EMI constructively selected USA Medical, who were negligent in allowing his leg to develop a bacteria, because EMI's written procedure for responding to an accident was to call 911 and as such following this procedure led to USA Medical. However, to be held vicariously liable, this Court held that EMI had to have affirmatively selected the doctor/physician who acted negligently. Accordingly this Court granted EMI's summary judgment motion on vicarious liability.
Finally, as to Dise's maintenance and cure claim, EMI has introduced evidence establishing that they provided maintenance and paid for Dise's medical treatment. Furthermore, Dise was not personally charged for the visits to the doctor at the time they occurred and no invoices were created until after the Dr's deposition. Because the plaintiff must show proof of expenditures made or liability incurred under a maintenance claim, and Dise failed to do so, this Court granted EMI's summary judgment motion on maintenance and cure.
Finally, EMI's motion for summary judgment, seeking indemnification for the other employee's payments in maintenance and cure from Dise. However, they have not shown any evidence to support that Dise committed an intentional tort against the other employee and the claim has no merit.
This Court granted all of EMI's motion for summary judgment except their counterclaim for recoupment of maintenance and cure.
An issue in this case regarded EMI's vicarious liability for the negligent act of a treating doctor. A Jones Act employer is required to give the seaman employee prompt medical treatment following an injury. Dise attempted to extend vicarious liability to EMI for the negligence of his treating doctor because he claimed EMI chose the doctor by creating a policy of calling 911, leading him to the negligent physician.
However, a Jones Act employer will be held vicariously liable only when they affirmatively, or directly, choose a Dr. whose negligence leads to further injury.
Steve Gordon
http://www.offshoreinjuries.com
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