29. It was implied in the agreement between SeaRiver and IMS that the doctors employed by IMS would exercise reasonable medical care in examining and treating Christopher Richards. It was further implied in the agreement that SeaRiver would be indemnified against loss resulting from negligence or breach of duty by IMS or its agents. See Maritime Overseas, 433 F. Supp. at 422.
30. Therefore, the Court finds that SeaRiver is entitled to indemnification from defendant IMS, and its successor Joel Renbaum, d/b/a Occupational Health Network, based on implied contractual indemnity.
31. No express contract existed between SeaRiver and Dr. Smith. Therefore, the Court finds that SeaRiver is not entitled to indemnification from Dr. Smith based on express contractual indemnity.
32. The Court finds that no implied contract existed between SeaRiver and Dr. Smith. The relationship between SeaRiver, a client of IMS, and Dr. Smith, a locum tenens physician retained by IMS on a part-time basis, is not sufficiently close to be a generally recognized special relationship.
33. Therefore, the Court finds that SeaRiver is not entitled to indemnification from Dr. Smith based on implied contractual indemnity.
34. California common law recognizes a right of partial indemnity under which liability among multiple tortfeasors may be apportioned according to the comparative negligence of each. Western Steamship Lines, Inc. v. San Pedro Peninsula Hosp., 8 Cal. 4th 100, 108-09, 876 P.2d 1062 (1994). Thus, the doctrine of comparative fault articulated in Li v. Yellow Cab Co., 13 Cal. 3d 804, 119 Cal. Rptr. 858, 532 P.2d 1226 (1975) applies to this action.
35. The Texas court found that SeaRiver was negligent in failing to provide Richards with adequate medical care and that this negligence was the proximate cause of Richards' injury. This holding was partially based on SeaRiver's strict vicarious liability for the negligence of those it employs to provide medical treatment for its injured employees. See Central Gulf Steamship Corp. v. A.L. Sambula, 405 F.2d 291, 297 (5th Cir. 1968); 46 U.S.C. § 688. SeaRiver is entitled to indemnification as to this portion of liability.
36. However, the Texas court also found that SeaRiver was itself negligent on several independent bases. The court found that SeaRiver was negligent in failing to define the nature of "light duties" and that Richards was therefore assigned tasks by his supervisors that exceeded his physical capabilities. The Texas Court found that Captain Borawski and Tom Shearer negligently failed to inquire into and discern the full extent and nature of Richards' medical limitations, and to convey the extent of those limitations to the chief mate. The Texas court found that Captain Borawski negligently assigned plaintiff duties inconsistent with his physical condition and that Tom Shearer negligently concluded that Richards should be returned to the ship on October 28, 1992. SeaRiver is not entitled to indemnification as to this portion of its liability.
37. A calculation of comparative indemnity must also consider any contributory negligence that may be attributed to Richards. Although contributory negligence is not a complete bar to recovery under the Jones Act, it will reduce the amount of plaintiff's recovery. Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1430 (5th Cir. 1988); Drake Towing Co. v. Meisner Marine Construction Co., 765 F.2d 1060, 1067 (11th Cir. 1985); Joia v. Jo-Ja Service Corp., 817 F.2d 908 (1st Cir. 1987).
38. The Court concludes that defendants did not provide sufficient evidence at trial to establish contributory negligence on Richards' part. Therefore, defendants are not entitled to an offset in the amount of damages assessed against them based on any negligence attributable to Richards.
39. The Court finds that the negligent acts and omissions of SeaRiver employees Tom Shearer and Captain Borawski contributed ten percent to the injuries sustained by Richards. Tom Shearer was negligent in failing to inquire into the full extent and nature of the work restrictions placed on Richards and in failing to convey this information to those responsible for supervising Richards' duties aboard the Exxon Benicia. Captain Borawski was negligent in assigning or allowing chief mate John Poulos to assign Richards tasks which exceeded his physical capabilities, including "suegeeing" book shelves. Captain Borawski admitted at trial that the performance of this task might require Richards to violate work limitations prescribed by Dr. Smith, including one restricting "weighted twisting or extension of [the] right wrist against tension," and one finding that Richards had a "limited capacity" to lift objects weighing between zero and twenty-five pounds.
40. The Court finds that the negligent acts and omissions of defendants IMS and Joel Renbaum, d/b/a/ Occupational Health Network, contributed thirty percent to the injuries sustained by Richards. IMS and Renbaum are directly liable for the negligent hiring of Dr. Smith, as well as the negligent supervision of both Dr. Smith and Fred Dugger.
41. The Court finds that the negligence of physician's assistant Fred Dugger contributed five percent to the injuries sustained by Richards.
42. The Court finds that the negligence of defendant Dr. Smith contributed fifty-five percent to the injuries sustained by Richards.
43. The Court finds that under the doctrine of respondeat superior, defendants IMS and Renbaum are vicariously liable for the negligent acts of IMS employees Fred Dugger and Dr. Smith.
44. A Jones Act defendant may be held jointly and severally liable with a defendant whose liability arises under state or general maritime law. See e.g., Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1431 (5th Cir. 1988); Joia v. Jo-Ja Service Corp., 817 F.2d 908, 915-18 (1st Cir. 1987); Ebanks v. Great Lakes Dredge & Dock Co., 688 F.2d 716 (11th Cir. 1982), cert. denied, 460 U.S. 1083, 76 L. Ed. 2d 346, 103 S. Ct. 1774 (1983). The Court finds that defendants IMS, Joel Renbaum, d/b/a/ Occupational Health Network, and Dr. Smith are jointly and severally liable for ninety percent of the damages suffered by Richards.
45. SeaRiver paid Richards $ 300,000 in satisfaction of the $ 446,545.21 judgment rendered in the Texas action.
46. SeaRiver paid Richards $ 31,231.79 in benefits under its short and long term disability plans.
47. SeaRiver paid Richards $ 14,940 for "maintenance". Under maritime law, maintenance payments compensate an ill or injured seaman for room and board which, but for his illness or injury, would have been provided aboard the vessel. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527, 82 L. Ed. 993, 58 S. Ct. 651 (1938).
48. SeaRiver paid Richards $ 30,745.49 for "cure". Under maritime law, cure payments compensate an ill or injured seaman for necessary medical expenses until the seaman reaches maximum medical improvement. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527, 82 L. Ed. 993, 58 S. Ct. 651 (1938). SeaRiver made cure payments to Richards to compensate him for medical expenses related to his elbow and shoulder injuries.
49. The Medical Injury Compensation Reform Act of 1975 ("MICRA"), California Civil Code §§ 3333 et seq., applies to an action brought by a vessel owner for indemnification based upon the allocation of proportional fault for injuries to the vessel owner's employee. See Western Steamship Lines, Inc. v. San Pedro Peninsula Hosp., 8 Cal. 4th 100, 876 P.2d 1062 (1994).
50. California Civil Code § 3333.2(b) limits the size of an award of noneconomic damages in any personal injury action against a health care provider based on professional negligence to $ 250,000. Under this section, SeaRiver's indemnity for payments made for noneconomic damages pertaining to the negligence of Dr. Smith and Fred Dugger must be limited to $ 250,000.
51. In the Texas action, Richards was awarded $ 402,777.00 for past and future lost wages and benefits. These damages are economic in nature and are not limited by MICRA.
52. In the Texas action, Richards recovered $ 75,000 for "past and future pain and suffering and loss of enjoyment of life." This amount is well within the recovery limits set by California Civil Code § 3333.2(b).
53. Therefore, the Court finds that MICRA does not limit SeaRiver's recovery for a portion of the $ 300,000 it paid to Richards in satisfaction of judgment rendered in the Texas action.
54. California Civil Code § 3333.1(a) partially abolishes the "collateral source rule" in actions for personal injury against a medical provider by allowing the defendant to introduce evidence of a "collateral source" such as health or disability insurance benefits and by allowing the trier of fact to consider this alternate source of recovery in computing the damages to be awarded. In addition, California Civil Code § 3333.1(b) precludes a "collateral source" which has provided medical payments or other benefits to a plaintiff from obtaining reimbursement of those expenses from a health care provider sued for professional negligence. Barme v. Wood, 37 Cal. 3d 174, 180-81, 689 P.2d 446, 207 Cal. Rptr. 816 (1984).
55. Pursuant to California Civil Code §§ 3333.1(a) and (b), the Court finds that plaintiff may not recover from defendants any portion of the $ 31,231.79 SeaRiver paid to Richards under its short and long term disability plans. These are "collateral benefits" of the type enumerated in California Civil Code § 3333.1(a).
Thus, Pursuant to California Civil Code § 3333.1(b), SeaRiver may not be subrogated to the rights of Richards against defendants.
56. California Civil Code § 3333.1(b) does not limit SeaRiver's recovery from defendants for the "maintenance" and "cure" payments it made to Richards. Maintenance and cure payments are not benefits of the type enumerated in § 3333.1. A vessel owner's duty to pay maintenance and cure to an injured seaman is "an implied provision in contracts of marine employment." Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 87 L. Ed. 1107, 63 S. Ct. 930 (1943). See also, Cortes v. Baltimore Insular Line, 287 U.S. 367, 372, 77 L. Ed. 368, 53 S. Ct. 173 (1932) (maintenance and cure is not a contractual duty but rather a "duty . . . imposed by the law itself as one annexed to the employment" of seamen); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962). However, benefits paid pursuant to implied contractual provisions are not covered by California Civil Code section 3333.1. See Brown v. Stewart, 129 Cal. App. 3d 331, 181 Cal. Rptr. 112 (1982) (holding that § 3333.1 does not apply to Medi-Cal payments because the term "any contract or agreement" contained in that section does not apply to an implied, unilateral contract between the payor and the provider of services but, rather, to an express, bilateral contract between the payor and the provider of services).
57. Therefore, the Court finds that California Civil Code § 3333.1 does not limit SeaRiver's recovery for a portion of the $ 14,940 it paid to Richards for "maintenance" or the $ 30,745.49 it paid to Richards for "cure".
58. Based on the foregoing, the Court finds that SeaRiver is entitled to recover (1) ninety percent of $ 300,000 paid in satisfaction of judgment rendered in the Texas action; (2) ninety percent of the $ 14,940 it paid to Richards for "maintenance"; and (3) ninety percent of the $ 30,745.49 it paid to Richards for "cure". Thus, SeaRiver is entitled to a total of $ 311,116.94 in money damages. As previously noted, defendants IMS, Joel Renbaum, d/b/a/ Occupational Health Network, and Dr. Smith are jointly and severally liable for these damages.
59. SeaRiver is not entitled to attorneys' fees and legal costs incurred in establishing its right to indemnification in the instant action. Campbell Industries, Inc. v. Offshore Logistics International, Inc., 816 F.2d 1401, 1406 (9th Cir. 1987).
60. SeaRiver is entitled to a portion of the attorneys' fees and legal expenses incurred in defending against Richards' claim in the Texas action. See Campbell Industries, Inc. v. Offshore Logistics International, Inc., 816 F.2d 1401, 1406 (9th Cir. 1987). However, these fees must be allocated to reflect the extent to which the expenses incurred in the underlying action relate to SeaRiver's defense against its own negligence, as opposed to its liability for the negligence of the third parties for whom it is vicariously liable.
61. SeaRiver alleges that it incurred approximately $ 156,811 in attorneys' fees and costs in defending the underlying action. However, the Court has not been provided with sufficient evidence from which to determine the extent to which these legal fees and expenses were incurred by SeaRiver in defending against liability for its own negligence as opposed to defending against liability based on the negligence of Dr. Smith and Fred Dugger. Rather than requiring SeaRiver to bear all costs incurred in the Texas action or arbitrarily allocating those fees and expenses among the parties,
the Court declines to rule on the issue of attorneys' fees and expenses at this time.
62. SeaRiver is entitled to prejudgment interest, which shall accrue from May 31, 1995, the date of final judgment in the Texas action. See Cooper v. Loper, 923 F.2d 1045, 1051 n.6 (3d Cir. 1991) (holding that because prejudgment interest compensates the indemnified party for the use of its money between settlement and reimbursement, interest accrues from the settlement date).
63. The Court finds that all matters concerning attorneys' fees and prejudgment interest are appropriate for adjudication by a magistrate judge. Accordingly, IT IS HEREBY ORDERED THAT:
(1) Pursuant to Civil Local Rule 72-1, all matters concerning attorneys' fees and prejudgment interest are referred to Chief Magistrate Judge F. Steele Langford for purposes of assigning the matters to a magistrate judge.
(2) If necessary, the magistrate judge to whom Chief Magistrate Judge Langford assigns these matters (the "Magistrate Judge") shall set a schedule for supplemental briefing on the issue of attorneys' fees.
(3) The Magistrate Judge shall supervise and issue findings and recommendations regarding the amount of attorneys' fees and prejudgment interest to be awarded in this action. The Magistrate Judge shall file the findings and recommendations with the Clerk of Court and serve a copy on the parties in this action.
(4) Pursuant to Civil Local Rule 72-3, unless otherwise provided, within ten (10) days of the service of the findings and recommendations, any party may serve and file objections thereto, together with notice setting the objections for hearing before this Court. The objecting party shall note each particular finding and recommendation to which an objection is made, shall note the legal authority for the objection, and shall propose alternative findings or recommendations.
(5) Unless otherwise provided, within ten (10) days of the service of the objections, any party may serve and file a response thereto. Within five (5) days of the service of the response, the objecting party may file a reply thereto.
(6) This Court's review of the findings and recommendations and objections thereto will conform with Local Rule 72-3.
IT IS SO ORDERED.
DATED: January 22, 1997
SAUNDRA BROWN ARMSTRONG
United States District