The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge
) ORDER DENYING MOTION TO ) COMPEL MAINTENANCE AND ) CURE ) (ECF NO. 97)
This is a Jones Act case in which plaintiff Rafael Bernardo Bailon ("Plaintiff") alleges he was injured while employed aboard the defendant vessel F/V Isabella ("Vessel"). Plaintiff alleges that his right knee was injured when he fell and that he subsequently incurred left knee and right ankle injuries due to Defendants' delay in providing maintenance and cure. Plaintiff asserts claims for negligence, unseaworthiness, maintenance and cure, and statutory wages against the Vessel; its owners, AACH Holding Co., No. 2, LLC and AACH Holding Co., LLC; and the owners' agent, Sardinha and Cileu Management, Inc. (collectively, "Defendants"). At the motion in limine hearing on January 11, 2013, this Court vacated the jury trial, which was set for February 12, 2013, and granted Plaintiff leave to file the instant motion for maintenance and cure.
"Maintenance and cure is designed to provide a seaman with food and lodging when he becomes sick or injured in the ship's service; and it extends during the period when he is incapacitated to do a seaman's work and continues until he reaches maximum medical recovery." Vaughan v. Atkinson, 369 U.S. 527, 531 (1962). "Admiralty courts have been liberal in interpreting this duty for the benefit and protection of seamen who are its wards." Id. (internal quotation omitted). A shipowner's liability for maintenance and cure is "the most pervasive of all" and is "not to be defeated by restrictive distinctions nor narrowly confined." Id. (internal quotations omitted). Indeed, "[w]hen there are ambiguities or doubts, they are to be resolved in favor of the seaman." Id.
Seamen are entitled to maintenance and cure for injuries incurred "in the service of the ship." Aguilera v. Alaska Juris F/V, O.N. 569276, 535 F.3d 1007, 1009 (9th Cir. 2008); see also Baker v. Ocean Systems, Inc., 454 F.2d 379, 384 (5th Cir. 1972) ("The determination of whether a seaman is 'in the service of the vessel' . . . at the time of the accident depends on the particular facts and circumstances of each case.").
"Where [a] demand for maintenance and cure has been joined with causes of action for negligence and/or unseaworthiness . . . then maintenance and cure may be disposed of by a properly framed motion for summary judgment" only when"the parties have agreed that maintenance and cure is payable at a specified rate and no genuine issue as to any material fact remains." 2 Robert Force & Martin J. Norris, Law of the Seamen § 26:55 (5th ed. 2012).
Several district courts have treated motions to compel maintenance and cure as motions for summary judgment. See McNeil v. Jantran, Inc., 258 F. Supp. 2d 926, 930 (W.D. Ark. 2003) (concluding that "motion for retroactive and future maintenance and cure should be treated as something similar to a motion for summary judgment"); Bloom v. Weeks Marine, Inc., 225 F. Supp. 2d 1334, 1336 (M.D. Fla. 2002) (concluding a claim for maintenance and cure can be disposed of by summary judgment if there is no dispute of material fact); Billiot v. Toups Marine Transport, Inc., 465 F. Supp. 1265, 1267 (E.D. La. 1979) (concluding that "a motion for summary judgment is the only permissible pre-trial procedure to determine the daily rate of maintenance"); Guerra v. Arctic Storm, Inc., 2004 WL 3007097, at *1 (W.D. Wash. Aug. 4, 2004) (treating motion for maintenance and cure as motion for summary judgment); Blake v. Cairns, 2004 WL 1857255, at *1 (N.D. Cal. Aug. 16, 2004) (concluding that a motion for maintenance and cure may be disposed of by summary judgment if there is no dispute of material fact); Sanfilippo v. Rosa S. Inc., 1985 WL 4565, at *2 (D. Mass. Dec. 9, 1985) ("[U]nless the seaman can show that there are no material facts in dispute and that he is entitled to summary judgment on the claim, he cannot obtain a pre-trial order for payment [of maintenance and cure].")
Still, at least two other district courts have declined to treat motions to compel maintenance and cure as motions for summary judgment. Boyden v. American Seafoods Co., 2000 A.M.C. 1512 (W.D. Wash. 2000) ("Applying a summary judgment standard to the payment of maintenance and cure would invite litigation and cause delays by involving the court in the medical determinations of maximum medical improvement, thus undermining the policy of simplicity in these matters."); Sefcik v. Ocean Pride Alaska, Inc., 844 F. Supp. 1372 (D. Alaska 1993) (declining to treat a motion to reinstate maintenance and cure as a motion for summary judgment). These cases, however, are distinguishable from the instant case. In Boyden, there was "no dispute that [the] plaintiff was injured while working on the vessel and that defendant paid maintenance and cure after discontinuing payments." 2000 A.M.C. at 1514. In Sefcik, there was no dispute as to whether the plaintiff's injuries were tied to his work on the vessel; rather, the dispute centered on whether the plaintiff had achieved maximum cure.
Here, as a preliminary matter, the Court will construe Plaintiff's Motion to Compel Maintenance and Cure as a motion for summary judgment. As such, Plaintiff's Motion must be denied because it is untimely and because, even if it were timely, there exists a dispute of material fact.
As Defendants note, the motion filing deadline in this case passed on November 5, 2012. (See ECF No. 76 at 1.) And, as Defendants further note, Plaintiff has failed to articulate good cause why the prior scheduling order should be modified to permit consideration of the instant motion. See Fed. R. Civ. P. 16(b)(4) ("A schedule may be modified only for good cause and with the judge's consent.") Accordingly, the Court concludes the untimeliness of Plaintiff's Motion alone is sufficient grounds to deny it. Even if it were timely, however, it must still be denied.
Summary judgment is appropriate where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Here, there is a dispute of material fact regarding whether Plaintiff's left knee and right ankle injuries were incurred while in the service of the Vessel, which Plaintiff must show to receive maintenance and cure. Plaintiff's expert, Dr. Maywood, opines that Plaintiff's left knee and right ankle injuries are compensatory injuries resulting from the alleged fall on the Vessel. Defendants' expert, Dr. Wilson, opines that Plaintiff's left knee and right ankle injuries are not compensatory injuries resulting from the alleged fall on the Vessel, as there exists no medical basis to support such a compensatory injury theory. Dr. Wilson further opines that Plaintiff's right ankle condition is congenital in nature and could not therefore be a result of the alleged fall. Accordingly, Plaintiff's Motion to Compel Maintenance and Cure is DENIED.*fn1 The hearing on Plaintiff's Motion, currently set for March 1, 2013, is VACATED. The Court sets a STATUS CONFERENCE for April 12, 2013, at 1:30 p.m.