to do so. See, e.g., Vaughan, 82 S. Ct. at 999 ; Kopczynski, 742 F.2d at 559. Even if early termination of disability benefits could be the basis for a claim of attorney's fees, the Court would still have to find that defendant acted with the requisite recalcitrance to justify such an award.
Exxon was clearly not acting in an arbitrary, callous or unreasonable manner. First, defendant is not guilty of failing to pay maintenance and cure altogether. Additionally, payments were made pursuant to the collective bargaining agreement to which both parties were bound. Moreover, given the Ninth Circuit rule as established in Gardiner, plaintiff's claim for additional maintenance and cure may be without legal basis. Most importantly, the Court finds that plaintiff was paid an adequate rate of maintenance and cure such that a motion for attorney's fees is inapplicable. Accordingly, defendant's motion for summary judgment is GRANTED as it relates to attorney's fees.
C. Loss of Consortium and Spousal Services
Plaintiffs' fourth cause of action is for loss of consortium and spousal services. This claim is based on Jo McNaughton's losses suffered as a result of her husband's injury. Defendant asserts that there is no claim for these types of damages available in federal law. Plaintiffs concede that there may not be a cause of action for loss of consortium in this Circuit but contend that loss of spousal services is pecuniary.
The recent Supreme Court decision of Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990), was an express attempt to unify the forms of non-pecuniary recovery available under the Jones Act, Death on the High Seas Act, and general maritime law. The Court reiterated the "constitutionally based principle that federal admiralty law should be a 'system of law coextensive with, and operating uniformly in, the whole country.'" Id. at 323 (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S. Ct. 1772, 1789, 26 L. Ed. 2d 339 (1970)).
Miles noted that the Jones Act makes applicable to seamen the substantive recovery provisions of the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51. Miles held that because courts had already established that FELA only permitted recovery for pecuniary damages, remedies available under the Jones Act are similarly limited. Miles, 111 S. Ct. at 325 . Miles accordingly held that there is no recovery for loss of society under the Jones Act.
Although recognizing that the circuits differ as to whether a spouse has an action for non-pecuniary relief pursuant to the Jones Act and general maritime law, the Miles court held that "there is no recovery for loss of society in a general maritime action for the wrongful death of a Jones Act seaman," Id., at 326, and further noted that, "today we restore a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law." Id. Accordingly, plaintiff's loss of consortium and spousal services claim is not valid. Although plaintiff's claim might have been cognizable prior to 1990, it is clearly barred today.
Further, there is Ninth Circuit authority addressing the issue of damages recoverable before the decision in Miles. In Nygaard v. Peter Pan Seafoods, Inc., 701 F.2d 77, 79 (9th Cir. 1983), the court held that non-pecuniary losses, such as loss of society in this case, may not be recovered under the Jones Act. In Bergen v. F/V ST. PATRICK, 816 F.2d 1345 (9th Cir. 1987), the court affirmed the fact that pecuniary damages are available under the Jones Act, "but where an unseaworthiness claim is joined with a Jones Act claim only the Fifth Circuit has held that punitives are available." Id. at 1347. And finally, in Kopczynski v. THE JACQUELINE, 742 F.2d at 560-6, the court limited Jones Act damages to pecuniary losses, clarified that punitive damages are not pecuniary, and noted that any argument that punitives ought to be available should be addressed to Congress.
Plaintiff cites two Supreme Court cases to support her right to recovery for loss of consortium, Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974), and Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970). She bases her claim on two arguments: (1) that because Miles is a death case it should not apply to cases involving non-fatal Personal injuries, and (2) that even if Miles properly limits plaintiffs to pecuniary recovery, spousal services are pecuniary in nature and therefore, recoverable.
The holding in the first case is inapplicable because it only governs longshoremen injuries in territorial water (Randal McNaughton is a seaman rather than a longshoreman). Miles, 111 S. Ct. at 325 . The other case, Moragne, is expressly relied upon in Miles to support its holding and is therefore adverse to the plaintiff's case. Id. at 320-21. Moragne only stands for the principle that the Jones Act does not foreclose non-statutory federal remedies in a DOHSA action.
On the basis of this line of authority, it is difficult to find a genuine issue of material fact in dispute regarding Jo McNaughton's claim for loss of consortium and spousal services. Although the court may find that spousal services are pecuniary in nature and thus not foreclosed by the decision in Miles, the one case indicating that such an interpretation is feasible, Cruz, 638 F.2d at 722, is a Fifth Circuit case and is impliedly overruled by Miles.
Further, Randal McNaughton is injured, not dead. He is recovering in his home in Louisiana and only suffers from an injured leg (and possible dietary complications). Those cases allowing recovery for loss of consortium (or hinting that the Court could do so) involved either death of a seaman, or serious bodily injury (i.e., loss of an eye, American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S. Ct. 1673, 1674, 64 L. Ed. 2d 284 (1980), or permanent disablement, Cruz, 638 F.2d at 721). Plaintiff Jo McNaughton's pain and suffering do not compare with the potential loss incurred from death or permanent disablement. Defendant's motion for summary judgment for this fourth cause of action is therefore GRANTED.
For the foregoing reasons, defendant's motion for summary judgment on plaintiffs' third and fourth causes of action is GRANTED. The parties shall appear for a status conference on September 2, 1992 at 9:00 a.m.
IT IS SO ORDERED.
DATED: August 13, 1992
D. Lowell Jensen
United States District Judge