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August 9, 2004.


The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District


On November 14, 2000, plaintiff Matthew Peake filed an action in this court against Chevron U.S.A., Inc., Chevron Shipping Co., Inc., and Chevron Transportation Corp., Ltd. (collectively "defendants"). In pertinent part, plaintiff's complaint alleged that defendants — individually and collectively — had violated California contract law, the Jones Act, and general maritime law. See, e.g., 46 U.S.C. § 688. Over the next four years, plaintiff restructured his complaint, focusing certain causes of action on particular defendants (e.g., plaintiff's Jones Act claim directed solely against Chevron U.S.A.) while eliminating some causes of action altogether. After a number of pretrial motions and status conferences, the parties tried the case before a jury in spring of 2004. On May 25, 2004, the jury delivered a verdict for plaintiff, finding that plaintiff was entitled to recover over $3,000,000 for his breach of contract, negligence, unseaworthiness, and maintenance and cure claims. Now before the court are the parties' many post-trial motions — though not those relating to defendants' motion(s) for a new trial, as the court decided those motions during a June 7, 2004, post-trial conference. The court has considered the parties' arguments fully, and for the reasons set forth below, the court rules as follows. BACKGROUND*fn1

Beginning in 1989, plaintiff worked for Chevron U.S.A. as an able-bodied seaman. Over time, plaintiff was promoted through the Chevron U.S.A. system, ultimately rising, in 1999, to the position of mooring master/environmental cargo officer. During that same year, plaintiff began to experience lower back pain, the symptoms of which he described as severe and worsening. This back injury was only aggravated, plaintiff asserts, when he was injured moving through a water-tight door on a Chevron Transport vessel on January 17, 2000. Shortly after this injury — and, as defendants note, after another back-related event — plaintiff was found "not fit for duty." He retained this classification until March 21, 2000.

  In late March 2000, plaintiff returned to work, apparently functioning without problem until May 2000. At that time, plaintiff took a voluntary leave from Chevron — ostensibly in response to claims of plaintiff's drug and alcohol abuse, all of which plaintiff denied. In July 2000, plaintiff again returned to work for Chevron, remaining on duty for approximately one month. On August 4, 2000, plaintiff voluntarily entered defendants' Employee Assistance Program. As a part of this program, plaintiff completed two weeks of inpatient drug and alcohol rehabilitation treatment and two weeks of intensive outpatient therapy; when he entered the program, plaintiff signed a Return to Work Agreement, which plaintiff claimed — and the jury found — Chevron U.S.A. later breached.

  Throughout this period, plaintiff's back pain persisted. Defendants provided "maintenance and cure" payments for the period between March 12, 2002, and December 31, 2002,*fn2 see Pl.'s Post-Trial Mot., at pp. 5-6, but Chevron did not offer "maintenance and cure" for the entire period in which plaintiff was unfit for duty. Following trial, the jury found that defendants' failure to provide "maintenance and cure" was willful and arbitrary. The jury also found in plaintiff's favor on all of his other claims, awarding plaintiff over $3,000,000 in damages; over a third of this total was awarded as lost income and lost benefit damages for plaintiff's tort-based (personal injury) claims.

  After the jury delivered its verdict, the court conducted a post-trial status conference. At this meeting, the court denied defendants' multifarious motion for a new trial, expressly preserving defendants' right to appeal. Also at this meeting, the court directed the parties to submit post-trial motions on three issues that were not — or could not have been — resolved by the jury: First, whether the jury's award contract damages was excessive, duplicative, or otherwise unreasonable; second, what the appropriate rate of maintenance and cure is in this instance; and, third, what measure of attorneys' fees is due to plaintiff's counsel vis-a-vis his litigation of maintenance and cure issues. All three issues are now before the court.


  I. Contract Damages

  Of the three questions before the court, the issue of plaintiff's contract damages can be resolved most quickly. Before this action was submitted to the jury, the court determined that plaintiff's contract damages should be substantially limited — specifically, to the wages and benefits that might have accrued in the ninety (90) days following October 30, 2004. Despite this express limitation on the contract damages available to plaintiff, the jury awarded $780,000 in breach of contract damages — $640,000 for lost wages and $140,000 for lost benefits. See, e.g., Def.s' Mot., at p. 2. Given the facts of the case and the damage limits set by the court, both sums are undeniably excessive: None of the evidence adduced at trial justifies such profligate damage totals, and plaintiff never even suggested — let alone established — that he earned over $200,000 per month. See, e.g., Pl.'s Opp., at p. 2 (conceding that the lost wage figure should be reduced to $25,000 if the 90-day limit is reaffirmed).

  In comparable contexts, courts have opted to remit (i.e., to reduce) jury awards, recalculating damage amounts based on the scope of the plaintiff's claims and the evidence adduced at trial. See, e.g., Pershing Park Villas Homeowners Ass'n v. United Pacific Ins. Co., 219 F.3d 895, 905 (9th Cir. 2000) ("Where there is no evidence that passion and prejudice affected the liability finding, remittitur is an appropriate method of reducing an excessive verdict.") (citing Seymour v. Summa Vista Cinema, Inc., 809 F.2d 1385, 1387 (9th Cir. 1987)). Such recalculations are rarely easy; they often involve consideration of imprecise numbers and unknown jury considerations, and they invariably require the court to address arbitrarily-selected damage values. Cf. Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1042 (9th Cir. 2003) ("[A]ppellants argue that the $2,600,000 award here was excessive and should be reduced to some unspecified amount.") (citations omitted); Webb v. Ada County, 285 F.3d 829, 839 (9th Cir. 2002). But the court need not rely on such difficult and vague computations here. All of the contract damages awarded to plaintiff were duplicative of other damages awarded by the jury — namely those awarded for plaintiff's tort-based personal injury claim. As a result, the full sum of plaintiff's contract damages (that is, all $780,000 of the award) is prohibited by California law. See, e.g., Abdala v. Aziz, 3 Cal.App.4th 369, 376-77 (Cal.App. 1992).

  For years, California's courts have reiterated the "undeniable proposition" that a plaintiff is "not entitled to a double recovery." Waffer Int'l Corp. v. Khorsandi, 69 Cal.App.4th 1261, 1280-81 (Cal.App. 1999); see also Abdala, 3 Cal.App.4th at 376-77 ("Duplicate recovery of damages is barred, and neither double recovery of the same item of loss nor double liability for the same item of injury is permitted.") (citations omitted). Where a plaintiff asserts both a contract claim and a tort claim arising from the same factual setting, that plaintiff cannot recover damages under both theories. See, e.g., DuBarry Int'l., Inc. v. Southwest Forest Indus., Inc., 231 Cal.App.3d 552, 564 (1991) ("If a given state of facts entitles one to recover damages upon [a] theory of tort, and the same set of facts entitles him to recover upon [a] theory of contract, it would be seem plain that recovery could not be twice had because the facts would support recovery upon either theory."); Pugh v. See's Candies, Inc., 203 Cal.App.3d 743, 761 & n. 13 (1988). Yet this kind of prohibited "duplicate recovery" is precisely what occurred here.*fn3 Finding in plaintiff's favor on all claims, the jury awarded plaintiff substantial lost income and lost benefit damages for his tort-based personal injury cause of action. Plaintiff's contract damages merely duplicate these tort-based sums, improperly granting plaintiff a double measure of lost income and lost benefit damages based on claims arising from the same factual setting. Such double recovery is precluded by law, and the court vacates the full breach of contract damage total accordingly. See id.*fn4

  II. Rate of Maintenance and Cure

  As a part of general maritime law, ship-owners have a legal duty to pay "maintenance and cure" to injured or ill seamen. See Williamson v. Western Pac. Dredging Co., 441 F.2d 65, 66 (9th Cir. 1971) (noting that the injury or illness need not "occur aboard ship" so long as the "disability resulted from the seam[a]n's activities while on duty"). This duty has deep historical roots, and many courts have explored its origins (and evolutions) at great length. See, e.g., Gardiner v. Sea-Land Serv., Inc., 786 F.2d 943, 945-46 (9th Cir. 1986) (discussing the "Middle Age" provenance of "maintenance and cure"); Ammar v. United States, 342 F.3d 133, 142 (2d Cir. 2003) (repeating Justice Story's oft-cited discussion of "poor, friendless and improvident" seamen who must be shielded from the "hazards of illness and abandonment while ill in foreign ports") (citations omitted). For the purposes of this order, the court need not reexamine all of the duty's historical terms. Instead, the court need only answer two questions: First, whether plaintiff's "maintenance and cure" sum should be apportioned to reflect the amount of time per month he actually spent on one of defendants' vessels; and, second, what the appropriate daily rate of "maintenance and cure" is in this instance.*fn5

  The question of apportionment of "maintenance and cure" is a somewhat simpler issue.*fn6 The Ninth Circuit has held that "the obligation of maintenance [is to be] enforced even where maritime compensation did not include board and lodging — [that is,] where the seaman was expected to pay for his meals out of his wages." See Crooks v. United States, 459 F.2d 631, 633 (9th Cir. 1972) (emphasis added). This approach to "maintenance and cure," the Ninth Circuit has acknowledged, is not without problem; for example, an overarching right to a full measure of "maintenance and cure" — regardless of proportional ship-based time — raises a substantial risk of double recovery, especially where, as here, a seaman appends negligence and unseaworthiness causes of action to his "maintenance and cure" claim. See id. at 634-35 ("Our case illustrates the problem of double recovery involved in the award of `maintenance' (on a maritime contract theory) and `lost wages' (on a negligence and unseaworthiness theory) during convalescence, where the lost wages are attributable to shore-side labor as well as ship-side labor.") (emphasis in original). But the general prohibition against double recovery is "not without exception," and the Ninth Circuit has determined that the "better rule . . . is that the maintenance obligation is independent of that to compensate for lost wages and exists without regard to the fact that lost wages may be computed on the basis of employment ashore." Id. (emphasis added). No pro rata determination of the seaman's expenses need — or should — be performed. Id. Rather, "during the period of his ...

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