Charles Dise v. Express Marine, Incorporated , 476 F. App'x 514 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1721
CHARLES H. DISE,
Plaintiff – Appellant,
v.
EXPRESS MARINE, INCORPORATED,
Defendant - Appellee,
and
UNIVERSITY OF SOUTH ALABAMA MEDICAL CENTER; JUVONDAS SHUNTA
HODGE, M.D.; AMIN FRONTAN, M.D.; J. DOE # 1; J. DOE # 2; J.
DOE # 3; J. DOE # 4; J. DOE # 5,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cv-01893-CCB)
Argued: September 21, 2011 Decided: November 17, 2011
Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Wilkinson and Judge Motz joined.
ARGUED: David W. Skeen, WRIGHT, CONSTABLE & SKEEN, LLP,
Baltimore, Maryland, for Appellant. JoAnne Zawitoski, SEMMES,
BOWEN & SEMMES, Baltimore, Maryland, for Appellee. ON BRIEF:
Meighan Griffin Burton, WRIGHT, CONSTABLE & SKEEN, LLP,
Baltimore, Maryland; Lawrence A. Melfa, BUTLER, MELFA & TAYLOR,
PA, Towson, Maryland, for Appellant. Alexander M. Giles,
SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Circuit Judge:
Appellant Charles H. Dise (“Dise”) filed this maritime
action to recover for injuries he sustained when a skiff piloted
by him and owned by his employer, Appellee Express Marine, Inc.
(“EMI”), allided with a bridge piling, and as a result of
allegedly negligent medical treatment he received at the
University of South Alabama Medical Center (“USA Medical”) in
the wake of the allision. Dise asserted claims for negligence
and vicarious liability under the Jones Act, 46 U.S.C. app. §
688(a) (recodified at 46 U.S.C. § 30104), and unseaworthiness
under the general maritime law. EMI counterclaimed to recover
for property damage to its skiff. The district court granted
summary judgment in favor of EMI on Dise’s Jones Act and
unseaworthiness claims, and on EMI’s property damage
counterclaim. We affirm.
I.
A.
At the time of the relevant events, Dise was a Maryland
resident employed by EMI as an assistant engineer on the Tug
BALTIMORE. EMI is a New Jersey corporation engaged in the
business of towing barges and commodities from various East and
Gulf Coast locations. Dise began working for EMI in October
2003. In April 2005, EMI assigned Dise to work on the Tug
3
BALTIMORE as an assistant engineer. His duties included standing
watch in the engine room during specified shifts.
During July 2005, the Tug BALTIMORE was assisting with the
loading of a barge near Mobile, Alabama. Around the time of
Dise’s assignment to the Tug BALTIMORE, EMI purchased a 14-foot
Boston Whaler (“the skiff”) for the purpose of taking draft
readings on the barge associated with the Tug BALTIMORE. 1
According to First Mate Douglas Covil, prior to the date of the
accident, July 19, 2005, the skiff had been used only for taking
draft readings. After the accident, the skiff was also used to
transport groceries and supplies to and from the tug.
On the evening of July 19, 2005, the Tug BALTIMORE and the
associated barge were docked at a terminal on Three Mile Creek
in Mobile, Alabama. In addition to Dise, the crew members
onboard the Tug BALTIMORE included Captain Michael Daniels,
First Mate Covil, Chief Engineer Sammy Edwards, Bargeman Jerry
Harper, Assistant Bargeman George Greggs, and the cook, Otis
Foster. Just before midnight, Daniels asked Greggs to take draft
1
“Draft” is “the depth of water required to float a
vessel,” and “draft marks” are “the Arabic numerals on both
sides of the bow and stern of a vessel to show the ship’s
draft.” Thompson Lenfestey & Tom Lenfestey, The Sailor’s
Illustrated Dictionary 142-43 (Globe Pequot ed., 2001). In the
context of this case, taking “draft readings” consists of
recording the draft marks at the waterline on the barge being
towed by the Tug BALTIMORE. See J.A. 128-30.
4
readings from the adjoining barge using the skiff. Daniels also
instructed Greggs to deliver a radio to Harper on the barge.
Although Greggs had never operated the skiff prior to that
night, both Daniels and Covil had used the skiff to take draft
readings on numerous occasions. In his deposition, Daniels
testified that he had taken the skiff out earlier that very
evening to measure the drafts. Neither party testified to
experiencing any problems with the skiff.
Dise was present when Daniels ordered Greggs to take the
draft readings. Dise asked Daniels for permission to drive the
skiff while Greggs took the draft readings. According to the
testimony of Daniels, which was corroborated by Covil, Daniels
replied to Dise with something along the lines of, “it d[oes]n’t
take two people to read drafts.” J.A. 55, 71. After Daniels left
the galley, however, Dise informed Covil that he was planning to
accompany Greggs, and Covil did not explicitly tell him not to
follow through on that plan.
Dise and Greggs met on the deck a few minutes later,
boarded the skiff, and proceeded to the barge to take the draft
readings. Dise operated the skiff, while Greggs sat toward its
bow. Once they had acquired the initial draft readings, Dise and
Greggs decided to pilot the boat down Three Mile Creek. Dise
testified that it was Greggs’s idea to take the skiff downriver
to see a ship moored nearby, while Greggs testified that Dise
5
wanted “to run the boat to see how it operated,” J.A. 174. It is
undisputed that Dise was at the helm of the skiff during the
entire incident.
Dise steered the skiff downriver toward the moored ship,
passing under a railroad bridge along the way. Shortly after
passing under the bridge, a call came in to the skiff to take a
second set of draft readings because, according to Greggs,
Harper had noticed a “discrepancy” and so wanted a new set of
readings taken. J.A. 175. Dise testified that he heard the word
“emergency” over the call, immediately turned the boat upriver,
and accelerated on a course toward the barge. J.A. 325. In his
deposition testimony, Dise claimed the fastest he drove the boat
was 17 or 18 knots, short of full throttle. However, in his
diary entry made after that night, he described the speed of the
skiff as “full speed ahead.” See J.A. 151-53. Greggs also
testified that, when Dise turned the boat around, “he opened up
the boat full throttle,” which Greggs ascertained because he
could see that the throttle was all the way forward. J.A. 602.
Dise claims that when he turned the skiff around, he was
blinded by lights on the ship ahead of him and could not clearly
see the bridge, so he asked Greggs to shine the skiff’s
spotlight, which he had been using to take the draft readings,
on the bridge. When Greggs did not respond, however, Dise did
not slow down or await Greggs’s compliance; indeed, Dise recalls
6
“spe[eding] up a little bit more” at that point. J.A. 328.
Shortly thereafter, the skiff crashed into one of the bridge’s
bulkheads, and Dise and Greggs were thrown into the water,
suffering injuries to their extremities. According to Dise, he
could not make out the contours of the bridge without the
spotlight illuminating it. Greggs testified that it was a clear
night, he could clearly see the bridge and its bulkheads up
until the moment of impact, and he yelled to Dise to slow down
just before the crash.
After the allision, Dise and Greggs managed to hold onto
the skiff and get to the shore of Three Mile Creek. Once ashore,
Dise located a watchman on the railroad bridge who called 911.
An ambulance responded to the scene and took Dise and Greggs to
USA Medical in Mobile, Alabama. Upon learning of the accident,
EMI dispatched Keith Kirkeide, a company representative, to
Mobile to oversee Dise’s medical care. EMI paid all of the
medical expenses that Dise incurred while at USA Medical, which
included treatment of a major injury to his left leg.
USA Medical discharged Dise on July 23, 2005, at which
point he boarded a flight to travel to Baltimore. During the
course of the flight, Dise became severely ill. An ambulance was
called and transported Dise to St. Agnes Hospital immediately
upon his arrival in Baltimore. Doctors at St. Agnes Hospital
discovered that Dise’s leg wound had a severe bacterial
7
infection requiring an immediate operation and extensive
treatment. As a result, St. Agnes Hospital transferred Dise to
the University of Maryland Shock Trauma Center the next day for
additional treatment. Over the next two years, Dise underwent
multiple surgeries in an attempt to restore function to his leg.
He reached maximum medical improvement on January 31, 2008,
though he has permanent injuries to his leg. Dise did not return
to work for EMI after the accident.
B.
Dise filed suit in the district court on July 17, 2007,
seeking damages under the Jones Act, 46 U.S.C. app. § 688(a),
and various maritime doctrines. The complaint alleged five
counts: (1) negligence under the Jones Act; (2) unseaworthiness
under the general maritime law; (3) vicarious liability under
the Jones Act for negligent provision of medical care; (4)
maintenance and cure; and (5) unpaid wages. EMI denied all
liability and counterclaimed for recoupment of maintenance and
cure payments made to Dise, indemnification for payments made to
Greggs, and reimbursement for repairs to EMI’s skiff following
the accident.
After the close of discovery, the parties filed cross-
motions for summary judgment. EMI moved for summary judgment or
partial summary judgment as to all claims in the complaint on
the basis that each of Dise’s causes of action lacked merit. In
8
the alternative, EMI sought summary judgment on its affirmative
defense that it was entitled to exoneration or limitation of
liability to the value of the skiff at the time of the accident.
Dise moved for summary judgment on his vicarious liability
claim, the entirety of EMI’s counterclaim, and EMI’s affirmative
defenses.
The district court granted summary judgment in favor of EMI
as to all five counts in Dise’s complaint, and denied Dise’s
cross-motion for summary judgment on his vicarious liability
claim. Dise v. Express Marine, Inc., 651 F. Supp. 2d 457, 471
(D. Md. 2009). The district court granted summary judgment in
favor of Dise on EMI’s counterclaims seeking recoupment of
maintenance and cure and indemnification for payments made to
Greggs. Id. Rather than ruling on EMI’s motion for summary
judgment on its counterclaim for damage to the skiff, the
district court instructed EMI to advise the court within ten
days if it still wished to pursue the counterclaim in light of
the court’s other summary judgment rulings. Id. In response, EMI
timely moved for summary judgment to resolve its sole remaining
claim. Dise opposed the motion. On June 2, 2010, the district
court granted summary judgment in favor of EMI on its claim for
damages to the skiff. Dise v. Express Marine, Inc., 714 F. Supp.
2d 558, 562 (D. Md. 2010). Dise timely filed the instant appeal.
9
II.
Dise appeals the district court’s grant of summary judgment
in favor of EMI on his claims for negligence under the Jones
Act, unseaworthiness under the general maritime law, and
vicarious liability under the Jones Act for negligent provision
of medical care, as well as EMI’s counterclaim for damage to the
skiff. We review the district court’s grant of summary judgment
de novo. See Wash. Metro. Area Transit Auth. v. Potomac Inv.
Props., Inc., 476 F.3d 231, 234 (4th Cir. 2007).
A.
The Jones Act provides a cause of action in negligence for
“any seaman who shall suffer personal injury in the course of
his employment,” 46 U.S.C. app. § 688(a), and incorporates by
reference the judicially-developed doctrine of liability under
the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51 et
seq., thereby according seamen rights parallel to those of
railway employees. Kernan v. American Dredging Co., 355 U.S.
426, 439 (1958); Hernandez v. Trawler Miss Vertie Mae, 187 F.3d
423, 436 (4th Cir. 1999); see also 46 U.S.C. app. § 688(a)
(providing that “all statutes of the United States modifying or
extending the common-law right or remedy in cases of personal
injury to railway employees shall apply” to a seaman’s Jones Act
action). FELA provides in relevant part that railway employees
enjoy a right of recovery for injury or death resulting in whole
10
or in part from the negligence of their employer or their
employers’ officers, agents, or employees. 45 U.S.C. § 51.
Accordingly, to prevail on a negligence claim under the Jones
Act, a seaman must show: “(1) personal injury in the course of
his employment; (2) negligence by his employer or an officer,
agent, or employee of his employer; and (3) causation to the
extent that his employer’s negligence was the cause ‘in whole or
in part’ of his injury.” Hernandez, 187 F.3d at 436.
To further the humanitarian purpose of FELA, Congress
eliminated several common-law tort defenses that had
traditionally restricted recovery by injured workers. Consol.
Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994). Specifically,
FELA abolishes the common law fellow-servant rule and the
assumption of risk defense, rejects the doctrine of contributory
negligence in favor of comparative negligence, and prohibits
employers from contractually exempting themselves from FELA. Id.
at 542-43; see also 45 U.S.C. §§ 51, 53-55. The Supreme Court
liberally construes FELA, but “has cautioned that . . . FELA,
and derivatively the Jones Act, is not to be interpreted as a
workers’ compensation statute and that unmodified negligence
principles are to be applied as informed by the common law.”
Hernandez, 187 F.3d at 436-37 (citing Gottshall, 512 U.S. at
543-44)). In sum, “in establishing a Jones Act claim based on
negligence, the elements of duty, breach, and injury draw on
11
common law principles; the element of causation is relaxed; and
common law defenses are modified or abolished.” Id. at 437
(citations omitted).
In order to establish negligence, a seaman-plaintiff in a
Jones Act action must prove by a preponderance of the evidence
that his employer breached a duty to protect him against a
foreseeable risk of harm. Martin v. Harris, 560 F.3d 210, 216
(4th Cir. 2009) (citing Hernandez, 187 F.3d at 436). A
shipowner-employer’s duty under the Jones Act is to provide a
seaman-employee with a reasonably safe place to work. Id. at 216
(internal citations and quotation marks omitted). This duty
extends from the vessel to the shore, provided the seaman is
acting in the course of his employment. 2 Id. (citing O’Donnell v.
Great Lakes Dredge & Dock Co., 318 U.S. 36, 39 (1943)). Turning
to the sufficiency of the evidence in this case, the question is
whether the evidence before the district court on EMI’s motion
for summary judgment, when viewed in the light most favorable to
Dise, rose above the level of mere speculation and conjecture,
2
The district court, having determined that EMI was not
negligent, “assumed without deciding” that Dise was acting in
the course of employment at the time of the accident. Dise, 651
F. Supp. 2d at 465. We note that the parties disagree as to the
scope of this standard, but we likewise find that Dise has
failed to establish a genuine dispute of material fact as to
EMI’s negligence, and that EMI is therefore entitled to judgment
as a matter of law. Accordingly, like the district court, we do
not reach the issue of whether Dise was acting “in the course of
employment” at the time of the accident.
12
to the point where a factfinder could reasonably find that the
risk of harm posed was reasonably foreseeable.
Dise argues on appeal that the evidence establishes genuine
disputes of material fact with respect to several theories of
negligence, including: (1) EMI’s poor training and instruction
of Greggs; (2) the absence of written or verbal guidelines for
use of the skiff; (3) Greggs’s failure to shine the spotlight;
and (4) defective steering of the skiff. In addition, Dise
argues that the district court, in finding that Dise’s own
negligence was the “sole proximate cause” of the accident,
applied an erroneous causation standard. The district court
addressed each of Dise’s theories of negligence in turn and,
finding no genuine disputes of material fact, concluded that EMI
was entitled to judgment as a matter of law. Having had the
benefit of oral argument and having carefully reviewed the
briefs, record, and controlling legal authorities, we reach the
same conclusion. Accordingly, as to Dise’s Jones Act negligence
claim, we affirm on the basis of the district court’s well
reasoned opinion. 3 See Dise, 651 F. Supp. 2d 457.
3
Given that Dise bears the burden of proof on all elements
of his Jones Act negligence claim, the absence of evidence that
EMI breached a duty to Dise is dispositive, irrespective of the
Jones Act causation standard applied by the district court.
Consequently, we do not reach Dise’s causation argument.
13
B.
Dise’s unseaworthiness claim is separate and distinct from
his negligence claim. See Usner v. Luckenbach Overseas Corp.,
400 U.S. 494, 498 (1971). General maritime law imposes a duty
upon shipowners to provide seaworthy vessels, that is, vessels
reasonably fit for their intended use. Mitchell v. Trawler
Racer, Inc., 362 U.S. 539, 550 (1960). This duty extends to the
vessel itself, its equipment, and its crew. It is an absolute
duty requiring no knowledge on the part of the shipowner and
exists independently of the duty to exercise reasonable care
under the Jones Act, 46 U.S.C. app. § 688(a). Id. at 548-49. In
order to prevail on a claim for unseaworthiness, a plaintiff
must demonstrate that “the unseaworthy condition of the vessel
was the proximate or direct and substantial cause of the
seaman’s injuries.” Hernandez, 187 F.3d at 439 (citing Gosnell
v. Sea-Land Serv., Inc., 782 F.2d 464, 467 (4th Cir. 1986)).
Thus, the “causation burden is more demanding than the one the
plaintiff undertakes under the Jones Act.” Id. (internal
quotation marks and citations omitted).
Dise argues that “the defective steering of the skiff as
well as a poorly trained and instructed fellow crewman, Greggs,
with regard to use of the skiff, are unseaworthy conditions.”
Appellant’s Br. 16. As set forth supra, however, Dise has failed
to present sufficient evidence to establish a material dispute
14
of fact as to whether Greggs was qualified to operate the skiff
or whether the steering was defective. Regardless, it is
undisputed that the intended use of the skiff, which was new
when delivered to the Tug BALTIMORE only a few months prior to
the accident, was to take draft readings from the barge.
Defective steering at high speed, even if proved, would not
render the skiff unfit for this use as draft readings are not,
and indeed cannot be, taken at high speed. In addition, even if
Dise were able to show that deficiencies in the crew and the
vessel created an unseaworthy condition, he still must identify
admissible facts sufficient to demonstrate that one of these
conditions was the “proximate or direct and substantial cause”
of his injury. We agree with the district court’s conclusion
that neither was. Accordingly, we affirm the district court’s
grant of summary judgment in favor of EMI on Dise’s
unseaworthiness claim.
C.
The admiralty law doctrine of maintenance and cure imposes
upon a seaman’s employer a non-waivable and non-delegable duty
to provide food, lodging, and medical treatment to a seaman
injured in the course of employment. 5 Robert Force & Martin J.
Norris, Law of Seamen § 26-1 (5th ed. 2003); see also De Zon v.
Am. Pres. Lines, 318 U.S. 660, 667 (1943). A sick or injured
seaman has a cause of action under the Jones Act for his
15
employer’s wrongful failure to provide proper medical attention.
De Zon, 318 U.S. at 667. Because the Jones Act incorporates the
principles of FELA, 45 U.S.C. § 51 et seq., which renders an
employer liable for injuries negligently inflicted by its
“officers, agents, or employees,” a shipowner can violate its
duty to provide prompt and adequate medical care in two ways:
“directly, such as when the shipowner fails to get a crewman to
a doctor when it is reasonably necessary and the ship is
reasonably able to do so; and vicariously, when the shipowner
selects a doctor who acts negligently.” Olsen v. Am. Steamship
Co., 176 F.3d 891, 896 (6th Cir. 1999). Dise raises only the
latter type of claim, arguing that EMI is vicariously liable for
the allegedly negligent provision of medical care by USA Medical
providers Drs. Juvondas Shunta Hodge and Amin Frontan following
the accident.
The district court granted EMI’s motion for summary
judgment and denied Dise’s motion for summary judgment on his
claim alleging vicarious liability under the Jones Act. Dise,
651 F. Supp. 2d at 469. As a preliminary matter, the district
court determined that “in order to be vicariously liable for the
medical malpractice of a treating physician, the shipowner must
take some affirmative act in selecting or engaging the
physician.” Id. at 468. Noting that the agency standard is
relaxed under the Jones Act, the district court nevertheless
16
concluded that Dise had failed to present evidence of an
affirmative act on the part of EMI sufficient to give rise to an
agency relationship with the USA Medical providers as a matter
of law. Id. at 469.
Dise argues on appeal that the district court’s agency
analysis is inconsistent with the Supreme Court’s decisions in
Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326 (1958),
and Hopson, et al. v. Texaco, Inc., 383 U.S. 262 (1966), which
he avers establish that agency should be interpreted broadly in
the Jones Act context consistent with the employer’s non-
delegable duty to provide cure. In the alternative, Dise
contends that even if an affirmative act by EMI is a necessary
predicate to an agency relationship with the USA Medical
providers, the district court erred in finding that the evidence
does not establish such a relationship.
EMI’s vicarious liability for the alleged negligence of the
USA Medical providers turns upon the scope of “agency” in the
Jones Act context. The case law is instructive with regard to
these parameters. The Supreme Court has held that when a
railroad employee’s injury is caused in whole or in part by the
fault of others performing, under contract, operational
activities of his employer, such others are “agents of the
employer within the meaning of . . . FELA.” Sinkler, 356 U.S. at
331-32. The same standard applies in the Jones Act context. See
17
Fitzgerald v. A.L. Burbank & Co., 451 F.2d 670, 680 (2d Cir.
1971) (applying Sinkler in a Jones Act case). Accordingly, for
example, where a ship carries an onboard physician employed by
the ship, vicarious liability attaches to the shipowner for the
physician’s negligence. De Zon, 318 U.S. at 668. Courts have
also consistently held that an agency relationship exists when a
shipowner engages the services of an on-shore physician. See,
e.g., Olsen, 176 F.3d at 895-96 (“[T]he shipowner is liable for
the negligence of an on-shore physician that it hires to treat
its crewman.”) (collecting cases); Cent. Gulf S.S. Corp. v.
Sambula, 405 F.2d 291, 299 (5th Cir. 1968) (shipowner
vicariously liable where its agent brought an injured seaman to
physician who misdiagnosed and mistreated plaintiff’s eye
injury). Liability does not attach, however, when a seaman
selects his own physician. See Joiner v. Diamond M Drilling Co.,
688 F.2d 256, 262 n.9 (5th Cir. 1982) (“[W]e can find no case
holding a shipowner vicariously liable for the negligence of an
onshore physician selected by the injured seaman himself.”).
Similarly, the Seventh Circuit has held that when an employer
merely refers a seaman to a negligent medical provider, the
provider is “neither [an] employee[] of the defendant nor acting
on behalf of [the defendant], thus eliminating any basis for
vicarious liability.” Greenwell v. Aztar Indiana Gaming Corp.,
268 F.3d 486, 489, 492-93 (7th Cir. 2011).
18
Consistent with Dise’s argument, the Supreme Court has
advised that “an accommodating scope must be given to the word
‘agents’ to give vitality to the standard governing the
liability of carriers to their workers injured on the job.”
Sinkler, 356 U.S. at 330-31. Even given this relaxed agency
standard, however, the district court properly determined that,
based upon the case law, an agency relationship giving rise to
vicarious liability under the Jones Act requires “some
affirmative act [on the part of the shipowner] in selecting or
engaging” an on-shore medical provider. Dise, 651 F. Supp. 2d at
468.
Relying primarily upon Sinkler and Hopson, Dise argues that
a shipowner’s vicarious liability for negligent medical
treatment arises from its non-delegable duty to provide
maintenance and cure, rather than from any affirmative act taken
in selecting the provider. Neither case supports his position,
however. In Sinkler, the Supreme Court held that when an
employee’s injury was caused by the fault of others performing,
under contract, operational activities of the employer, such
others were “agents” of the employer within the meaning of FELA.
356 U.S. at 331-32. In Hopson, the Supreme Court applied Sinkler
in a Jones Act case to find that a shipowner who had a duty to
bring an incapacitated seaman before the U.S. Consul prior to
discharge in a foreign port, and who selected a taxi service to
19
transport the seaman, as it had done many times before, bore the
responsibility for the negligence of the driver it chose. 383
U.S. at 264. Both cases support the principle that, because a
seaman’s employer is under an absolute duty to provide medical
treatment to a sick or injured seaman, medical personnel
selected by it to render that treatment are deemed to be engaged
in the ship’s business as “agents” despite the fact that the
practitioner may be an independent contractor or completely
unrelated to the ship. However, these cases do not establish
that every provider of medical services to a sick or injured
seaman is automatically deemed an agent of the shipowner by
virtue of the shipowner’s duty to provide maintenance and cure. 4
In order to survive summary judgment, Dise must present
evidence establishing, at minimum, a genuine dispute of material
fact with respect to whether EMI took some affirmative act to
select or otherwise engage the USA Medical providers. Dise does
4
The circuit and district court cases Dise cites as support
are similarly inapposite. See De Centeno v. Gulf Fleet Crews,
Inc., 798 F.2d 138 (5th Cir. 1986) (shipowner liable where
vessel’s agent arranged for seaman to see local physician who
negligently failed to recognize signs of diabetes and therefore
failed to order blood test, where proper diagnosis could have
avoided diabetic coma and death); Fitzgerald, 451 F.2d 670 (2d
Cir. 1971) (shipowner liable for negligence of doctor it
selects); Sambula, 405 F.2d 291 (shipowner liable for
negligently selecting general practitioner, rather than
ophthalmologist, who misdiagnosed and mistreated plaintiff’s
eye).
20
not dispute that there is no evidence in the record that EMI
affirmatively engaged the USA Medical providers to treat him,
but instead argues that EMI constructively selected the USA
Medical providers by instituting a written emergency response
policy that instructs employees to “call 911 first.” See J.A.
722. Although it is a close question, we conclude that the
existence of the “call 911 first” policy alone is insufficient
as a matter of law to demonstrate that EMI selected or otherwise
engaged USA Medical and its providers in particular. Instituting
such a policy is essentially the equivalent of providing each
employee with a list of every medical provider in the region.
Such an act does not indicate that the employer selected or
engaged any particular provider.
Dise also contends that EMI acquiesced in USA Medical’s
treatment of him by paying for his care and not moving him to a
different facility, thereby establishing an agency relationship.
EMI was required to pay Dise’s medical expenses in order to
satisfy its non-delegable duty to provide cure, and did not
select or engage USA Medical in doing so. EMI’s failure to move
Dise to another hospital is also insufficient as a matter of law
to establish that EMI selected or otherwise affirmatively
engaged USA Medical. Thus, we affirm the district court’s grant
of summary judgment in favor of EMI on Dise’s claim for
vicarious liability under the Jones Act.
21
D.
We turn, finally, to the district court’s award of
affirmative relief to EMI. Dise argues that EMI may not assert
its property damage counterclaim because the Jones Act prohibits
counterclaims by employer-shipowners against employee-seamen, as
such actions are incompatible with the principles of maritime
law. The district court acknowledged that neither the Supreme
Court nor this court has directly addressed this question, but
reasoned that “the consistency with which these courts have
applied FELA to Jones Act cases and permitted counterclaims
under FELA weighs in favor of permitting EMI’s counterclaim.”
Dise, 714 F. Supp. 2d at 560. Consequently, the district court
granted EMI’s motion for summary judgment on its counterclaim
for damages to the skiff in the amount of $3,254.96, the
undisputed cost of repairs. Id. at 562.
In reaching this result, the district court relied
primarily upon this court’s decision in Cavanaugh v. W. Md. Ry.
Co., 729 F.2d 289, 294 (4th Cir.), cert. denied, 469 U.S. 872
(1984), which held that FELA does not prohibit employer
counterclaims against employees in the railroad context, and a
subsequent Fifth Circuit decision which held, largely based upon
Cavanaugh, that the Jones Act does not bar employer
counterclaims in the maritime context, Withhart v. Otto Candies,
L.L.C., 431 F.3d 840 (5th Cir. 2005). Id. at 560-61. Dise
22
contends that Cavanaugh and Withhart were incorrectly decided,
and argues in the alternative that even if we extend Cavanaugh
to this context, considerations unique to the maritime context
militate against extending our decision in that case to Jones
Act actions, as the Fifth Circuit did in Withhart. Although we
recognize that Cavanaugh did not squarely address the issue
before us in the instant maritime case, we decline to so readily
discount its relevance given that the Jones Act incorporates the
judicially-developed doctrine of liability under FELA.
In Cavanaugh, we held that FELA neither explicitly nor
implicitly proscribes the filing of a counterclaim by a railroad
in a FELA case to recover for property damages sustained by
reason of the sole negligence of a plaintiff-employee. 729 F.2d
at 294. We noted that if the railroad-employer were denied the
right to assert a property damage counterclaim during the
employee’s FELA suit, the compulsory counterclaim requirement
under Fed. R. Civ. P. 13(a) would prohibit the employer from
later bringing the claim, thereby unfairly affording the
employee absolute immunity from any liability for his
negligence. Id. at 291. Turning to the statute itself, we
rejected the contention that Sections 5 and 10 of FELA, 45
U.S.C. §§ 55 & 60, implicitly bar employer counterclaims against
employees. Id.
23
Section 5 of FELA provides that “any contract, rule,
regulation, or device whatsoever, the purpose or intent of which
shall be to enable any common carrier to exempt itself from any
liability created by this act, shall to that extent be void . .
.” 45 U.S.C. § 55. Section 10 similarly provides that “any
contract, rule, regulation, or device whatsoever, the purpose,
intent or effect of which shall be to prevent employees of any
common carrier from furnishing voluntary information to a person
in interest as to the facts incident to the injury or death of
any employee, shall be void . . .” 45 U.S.C. § 60. We reasoned
that Section 5 clearly defines “device” as having the purpose of
exempting the common carrier from liability, and an employer
negligence counterclaim does not exempt the common carrier from
liability; therefore, an employer negligence counterclaim is not
a prohibited device under Section 5. Cavanaugh, 729 F.2d at 291-
92. With respect to Section 10, we found that “there is no
authority for the assumption that the possibility of a
counterclaim being filed creates an unfair advantage in favor of
the defendant or improperly coerces or intimidates the injured
party from seeking redress for his injuries . . . The same
argument could be advanced against the admissibility of a
counterclaim in any tort action.” Id. at 293. 5
5
We note that our reasoning in Cavanaugh has not gone
(Continued)
24
The First and Eighth Circuits have followed Cavanaugh,
holding that employer property damage counterclaims are
actionable under FELA. See Sprague v. Boston & Maine Corp., 769
F.2d 26, 29 (1st Cir. 1985); Nordgren v. Burlington Northern
R.R. Co., 101 F.3d 1246, 1253 (8th Cir. 1996). The Eighth
Circuit held that employer property damage counterclaims are not
“devices” under Section 5 and 10 of FELA because the suits do
not absolve the employers of liability. Nordgren, 101 F.3d at
1251. Interpreting the phrase “any device whatsoever” in
Sections 5 and 10, the Eighth Circuit looked to the terms
preceding the phrase, namely “contract,” “rule,” and
“regulation,” and determined that because they refer to legal
instruments that railroads attempt to use to evade liability,
unquestioned. Dissenting from the divided panel’s majority
opinion in Cavanaugh, Judge Hall argued that the majority
construed Sections 5 and 10 too narrowly. 729 F.2d at 295.
According to the dissent, the counterclaim at issue was “a
‘device’ calculated to intimidate and exert economic pressure on
the employee, to curtail and chill his rights, and ultimately to
exempt the railroads from liability under the FELA.” Id. at 296.
The dissent further found that the counterclaim violated Section
10 insofar as it “would prevent employees from voluntarily
furnishing information regarding the extent of their
negligence.” Id. In Stack v. Chi., Milwaukee, St. Paul and Pac.
R.R., 615 P.2d 457 (Wash. 1980), the Washington Supreme Court
similarly found that employer negligence counterclaims violate
Section 5 of FELA because such suits limit employer liability,
as employees would then be reluctant to file FELA actions, id.
at 459. In Yoch v. Burlington N. R.R., 608 F. Supp. 597, 598 (D.
Colo. 1985), the Colorado federal district court adopted Stack’s
rationale in holding that FELA prohibits employer negligence
countersuits.
25
the term “devices” should be viewed in the same context. Id. at
1250-51. Therefore, according to the Nordgren court, “any device
whatsoever” is simply a catchall phrase “referring only to any
other creative agreement or arrangements the railroad might come
up with to exempt itself from liability,” and does not include
employers’ negligence countersuits. Id.
In Withhart, the Fifth Circuit considered as a matter of
first impression in the federal courts of appeals whether a
shipowner-employer in a Jones Act action may assert negligence
and indemnity claims against its seaman-employee for property
damage allegedly caused by the employee’s negligence. 431 F.3d
at 840. Relying largely upon Cavanaugh, the court held that “no
statutory authority in FELA, and consequently, in the Jones Act,
prohibits a shipowner-employer from pursuing a claim against its
negligent seaman-employee for property damage.” Id. at 845. The
Withhart court noted that negligence was an actionable wrong
under maritime law prior to enactment of the Jones Act, 431 F.3d
at 842 (internal citation omitted), and reasoned that permitting
employer counterclaims would not exempt employers from liability
or unfairly prejudice employees, id. at 844. The Witthart court
concluded that allowing an employer counterclaim would not
narrow the remedies available to employees under the Jones Act.
Id. at 845.
26
Consistent with the district court’s analysis, the extant
authority weighs in favor of allowing EMI’s counterclaim based
upon the particular facts of this case. EMI’s counterclaim for
damage to its skiff does not act as a liability-exempting
“device” of the sort prohibited by FELA, 45 U.S.C. §§ 55 and 60.
EMI sought to limit its liability to $7,945.00 under the
Limitation of Liability Act, 46 U.S.C. §§ 30501, et seq., which
so far as bears on this case limits a shipowner’s liability to
the value of the ship, 46 U.S.C. § 30505(a), but counterclaimed
for the lesser amount of $3,254.96, the undisputed cost of
repairs. In addition, we have found that EMI was not negligent
to any extent, so its property damage counterclaim does not
serve as a set off to liability. For these reasons, we affirm
the district court’s grant of summary judgment in favor of EMI
on its counterclaim for property damage to the skiff. We leave
for another day, however, the question of whether property
damage counterclaims by shipowner-employers against negligent
seaman-employees are actionable in every Jones Act case. 6
6
Notably, in a decision postdating the district court’s
order granting summary judgment in this case, the Seventh
Circuit held that “combining a property-damage counterclaim with
a limitation of liability in order to wipe out a substantial
personal injury claim under the Jones Act is a liability-
exempting device forbidden by the Act.” Deering v. Nat’l Maint.
& Repair, Inc., 673 F.3d 1039, 1048 (7th Cir. 2010) (Posner,
J.). We have no occasion in the case at hand to examine Deering.
27
III.
For the reasons set forth, we are persuaded, as was the
district court, that the evidence in the record fails to
establish a genuine dispute of material fact as to EMI’s
negligence or its vicarious liability for the alleged negligence
of the USA Medical providers. In order to establish an agency
relationship for the purposes of vicarious liability in a Jones
Act action, the seaman-employee must demonstrate some
affirmative act on the part of a shipowner-employer in selecting
or otherwise engaging the negligent medical provider. Thus, we
affirm the district court’s grant of summary judgment in favor
of EMI on Dise’s Jones Act claims. With respect to his
unseaworthiness claim under the general maritime law, Dise
failed to establish that either the skiff or the crew
constitutes an unseaworthy condition. Accordingly, we affirm the
district court’s grant of summary judgment in favor of EMI on
the unseaworthiness claim.
Finally, while neither this court nor the Supreme Court has
decided whether employer property damage counterclaims are
actionable in Jones Act cases, we have no hesitation in
concluding that EMI’s counterclaim does not serve as a
liability-exempting device under the particular facts of the
instant case, and we apply the rule supported by the weight of
authority favoring allowance of EMI’s counterclaim. Thus, we
28
affirm the district court’s grant of summary judgment on EMI’s
counterclaim for damage to the skiff. We acknowledge, however,
that under circumstances not present in the case before us, some
employer property damage counterclaims may be impermissible
under the FELA, Jones Act, and general remedial principles of
maritime law. See Deering v. Nat’l Maint. & Repair, Inc., 673
F.3d 1039 (7th Cir. 2010).
AFFIRMED
29