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MCNAUGHTON v. EXXON SHIPPING CO.

August 13, 1992

RANDAL McNAUGHTON and JO McNAUGHTON, Plaintiffs,
v.
EXXON SHIPPING CO., Defendant.



The opinion of the court was delivered by: D. LOWELL JENSEN

ORDER

 On March 25, 1992, this Court heard defendant's motion for summary judgment. At the hearing, Martin Jarvis of Kopp & DiFranco appeared for plaintiffs and Mark Kasanin of McCutchen, Doyle, Brown, & Enersen appeared for defendant. Having considered the papers submitted, the arguments of counsel, the applicable law, and the entire record herein, the Court GRANTS defendant's motion for summary judgment.

 I. BACKGROUND

 This is an action arising from a slip-and-fall incident aboard an Exxon oil-tanker, a ship owned by Exxon Shipping Company ("ESC"). Plaintiff alleges that he sustained injuries aboard defendant Exxon's tanker, the North Slope, while he was employed as the Chief Pumpman. On July 19, 1989 the North Slope was lightering its cargo of crude oil onto a smaller vessel in San Francisco Bay. During this transfer, plaintiff claims that he slipped, fell, and was injured. The plaintiff attributes two factors to the cause of his fall: (1) his insecure footing related to the presence of coils of line improperly left on the deck beneath his feet, and (2) the absence of the proper non-skid paint on the steel deck.

 Following this accident plaintiff visited Dr. Baer, a San Francisco physician to whom he was sent by Exxon. He then returned to his home in Calhoun, Louisiana where he sought the care of his own physicians including Dr. Nawas, his primary care physician, and a Dr. Bailey. Dr. Nawas performed arthroscopic surgery on plaintiff's knee and plaintiff has undergone physical therapy since that time. He has since resumed his career as a seaman.

 Plaintiff was a member of a labor union, the Exxon Seaman Union. As a result of his temporary disability, plaintiff received "maintenance and cure" payments at the rate of eight dollars per day as was arranged in the disability plan negotiated between ESC and the labor union. On April 12, 1991, plaintiff's benefits were raised to twenty dollars per day pursuant to a new collective bargaining agreement between ESC and the union. See Plaintiff's Affidavit, at 3. Plaintiff now alleges that this daily rate of maintenance is not binding upon him because it does not provide him with the actual cost of maintenance necessary for reasonable food and shelter in the Monroe, Louisiana area. Plaintiff assesses that he is actually entitled to sixty-one dollars per day, which would cover three meals and lodging ashore.

 Not only is the amount of adequate maintenance and cure in dispute, but the time period for which plaintiff was entitled to this disability is also in contention. Although defendant alleges that plaintiff reached "maximum possible cure" (the point at which no further improvement is anticipated) when Dr. Nawas so indicated in his letter dated January 28, 1991, plaintiff introduces evidence that he in fact had not reached maximum cure at this time. Instead, plaintiff claims that he was placed on a special diet for which he had not reached maximum cure when defendant ceased disability payments.

 Plaintiff's wife, Jo McNaughton, has also joined a loss of consortium and spousal services claim that she alleges arises out of painful and disabling personal injuries that her husband sustained as a member of the crew of the North Slope. Plaintiff claims that this recovery is actually pecuniary in nature and thus, not barred by recent Supreme Court authority. Because ESC has ceased payments, plaintiff seeks an award of reasonable attorney's fees for "willfully and deliberately" failing to provide maintenance and cure since late January.

 Defendant now brings this motion for summary judgment on three of plaintiff's claims. First, defendant argues that plaintiff Randal McNaughton is not entitled, as a matter of law, to additional maintenance and cure payments. Second, defendant claims that plaintiffs are not entitled to recover attorney's fees for pursuing this action. Third, defendant argues that plaintiffs' loss of consortium and spousal service claims are barred as a matter of law.

 II. STANDARD FOR SUMMARY JUDGMENT

 Rule 56 governs motions for summary judgment. This rule states that summary judgment may be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(e).

 In a motion for summary judgment, "if the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrates the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Electric Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1983); Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 107 S. Ct. 435, 93 L. Ed. 2d 384 (1986)) (emphasis in original).

 When judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the nonmoving party. T.W. Electric, 809 F.2d 630 at 630-31 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). Regardless of who is the moving party, each party must "establish the existence of the elements essential to [its] case, and on which [it] will bear the burden of proof at trial." Celotex Corp., 106 S. Ct. at 2552 . The standard for judging a motion for summary judgment is the same standard used to judge a motion for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).

 In meeting their burdens of proof, each party must come forward with admissable evidence. Fed. R. Civ. P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2nd Cir. 1985); Thornhill Publishing Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissable. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980). Plaintiffs ...


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