Hoffman v. Halcot Shipping Corp. , 93 F. App'x 658 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 1, 2004
Charles R. Fulbruge III
Clerk
No. 03-30301
DAFYDD HOFFMAN, ET AL.,
Plaintiffs,
ANDREW MARIANO,
Plaintiff - Appellant,
v.
HALCOT SHIPPING CORP., ET AL.,
Defendants,
HALCOT SHIPPING CORP.; ZODIAC MARITIME AGENCIES, LTD.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
00-CV-1815-T
Before DAVIS, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
The plaintiffs filed the instant suit seeking recovery for
injuries sustained as a result of the negligent operation of an
oceangoing tanker owned and managed by the defendants. The
district court found the defendants at fault but reduced plaintiff
Mariano’s award fifty percent due to the fault of the plaintiffs’
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
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employer, Port Ship Service, Inc. We conclude that the record does
not support the district court’s finding that Port Ship was at
fault and the district court erred in reducing plaintiff Mariano’s
recovery. Plaintiff Mariano also challenges the district court’s
order refusing to allow plaintiff to recover his medical expenses
that were previously paid under the employer’s health plan. We
find no error in the district court’s conclusion that the
subrogation exception to the collateral source rule is applicable
in this case.
I.
Plaintiffs, Dafydd Hoffman (Hoffman) and Andrew Mariano
(Mariano), were employed as boat operators by Port Ship Service,
Inc. (Port Ship). Port Ship is a water taxi service which
transports goods and personnel to ships anchored in the Mississippi
River in the New Orleans area. On the night of February 26, 1999,
Hoffman and Mariano were on duty at Port Ship’s facility in Arabi,
Louisiana, and available to serve as operators of the Port Ship
vessels if customers needed water taxi service. Also present was
deckhand Jeremiah Arabie, who was filling in because the two
deckhands scheduled to work that night failed to show up. Three
boats were stationed at Port Ship’s Arabi facility on the day of
the accident, the LITTLE RAY, the MISS LESLIE, and the MISS RAE
ANNE. When transporting passengers on one of its vessels, Port
Ship requires that the vessel be manned by one operator and one
deckhand; otherwise no deckhand is required.
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At around 11:00 p.m. on the night in question, Hoffman and
Mariano received a call from their dispatcher that the Defendants’
551 foot tanker was out of control up river and was careening down
river directly toward Port Ship’s vessels. Hoffman, Mariano, and
Arabie acted quickly to move the vessels to safety. Hoffman
boarded the LITTLE RAY, cranked the engine, and moved it forward to
provide the necessary slack in the mooring line to allow Arabie to
untie the vessel. At the same time, Mariano headed for the MISS
LESLIE. Because no other deckhand was available, Mariano attempted
to untie the MISS LESLIE by himself. The strong river currents
prevented him from doing so, and in the process Mariano sustained
injuries to his neck and shoulder.2
The plaintiffs filed suit in the Louisiana state court against
Halcot Shipping Service, Inc. (Halcot) and Zodiac Maritime
Agencies, Ltd., seeking damages for their injuries. Port Ship was
not a party to the litigation. The case was then removed to
federal court. After a bench trial, the district court found the
defendants liable for the injuries suffered by Mariano. The
district court also found Port Ship negligent for failing to have
two deckhands on duty the night of the accident and concluded that
Port Ship was 50% at fault for Mariano’s injuries. Pursuant to
this finding, the district court reduced Mariano’s recovery by 50%.
The district court also concluded that Mariano could not recover
2
Plaintiff Hoffman was also injured when the drifting tanker
slammed into the LITTLE RAY. Hoffman is not a party to this appeal.
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any medical expenses that had already been paid by Port Ship’s
medical insurer, Gilsbar, Inc. (Gilsbar). The district court
reasoned that under Port Ship’s insurance plan Gilsbar had the
right of subrogation to recover payments made by it and was
therefore the proper party plaintiff to recover those expenses from
the defendants.
II.
Mariano first argues that the district court erred in reducing
his award by 50% due to the negligence of Port Ship. Because no
deliveries were scheduled that night, Mariano argues that Port Ship
had no duty to have a deckhand available for each vessel at the
facility so that all three vessels could service customers at one
time. Mariano argues that Port Ship has no duty to have a boat
operator and a deckhand on duty for each vessel located at its
facility just in case a tanker loses control in the river and puts
its docks and standby vessels in danger.
In denying Mariano’s Motion to Amend the Judgment, the
district court stated that “it cannot be ignored that the
circumstances surrounding the accident on the night in question
revolve in large portion on the fact that Port Ship was
understaffed.” Although true, this fact goes to causation. It
does not answer the question of whether Port Ship had a duty to
keep two deckhands at the Arabi station at all times.
The defendants did not offer any evidence showing that it is
Port Ship’s or industry policy to have two deckhands on duty at all
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times. Indeed, the trial testimony shows that the only time a
deckhand’s presence was required was to man a vessel transporting
passengers. It is true that if Port Ship had received simultaneous
orders for two vessels to transport passengers it may have been
able to fill only one of those orders, but we are aware of no duty
owed by a vessel owner to maintain a standby crew for all its
available vessels. The district court erred in holding Port Ship
had a duty to maintain two deckhands at the Arabi facility at all
times.3
III.
Mariano next argues that the district court erred in applying
the subrogation exception to the collateral source rule and
preventing him from recovering from Halcot any medical expenses
already paid by Port Ship’s insurer, Gilsbar. Under the
“collateral source” rule a plaintiff’s tort recovery will not be
reduced by the amount of any benefits received by the plaintiff
from sources independent of the tortfeasor. Kidder v. Boudreaux,
636 So.2d 282, 284 (La.App. 3d Cir. 1994). However, an exception
is provided to this rule where an insurer has the right to
subrogate against the tortfeasor who injured the plaintiff. This
exception applies even if the party subrogated does not appear to
3
Although Mariano does not argue the issue on appeal, our
opinion should not be read as suggesting that Halcot would have been
entitled to a reduction in the amount owed to the plaintiff if the
evidence supported a finding that Port Ship was at fault. Liability
under the general maritime law is joint and several. Coats v. Penrod,
31 F.3d 1113 (5th Cir. 1995).
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assert its subrogation rights and the defendants do not timely
object to the non-joinder of a necessary party. Id.At trial, the Mariano did not make an evidentiary objection to
the admission of the plan summary (except possibly to its
relevance), nor does he make such an argument in this appeal.4
Rather, Mariano argues that this case is identical to Kidder, 636
So.2d at 284. Mariano contends that under Kidder, the right to
subrogation may only be established by introducing into evidence
the actual insurance policy or plan. Id. Mariano argues that the
only evidence of a right to subrogation offered by the defendants
was the Summary of the Gilsbar Employee Benefit Plan of Port Ship
(the “Plan”) and not the Plan itself.
We reject the plaintiff’s characterization of Kidder. Kidder
refused to apply the subrogation exception to the collateral source
rule because the defendants in that case introduced no evidence
regarding the right of subrogation. Id. Unlike Kidder, the
defendants in the instant case did introduce evidence of Gilsbar’s
right to subrogation through introduction of the Gilsbar Plan
Summary. This uncontradicted Plan Summary adequately demonstrates
4
Although plaintiff made a general objection to the
introduction of the plan summary, his reference back to an
earlier objection makes it clear he was challenging evidence of
Port Ship’s payment of plaintiff’s medical bills as irrelevant in
light of the collateral source rule.
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Gilsbar’s right to subrogation.5 The subrogation exception to the
collateral source rule is therefore applicable to this case, and
the district court was correct in refusing to allow the plaintiff
to recover from Halcot medical expenses paid by Gilsbar. Guillory
v. Terra International, Inc., 316 So. 2d 1084, 1093 (La.App. 3 Cir.
1993).
IV.
5
The “Subrogation” section states, in pertinent part:
If a participant receives benefits under this Plan as a
result of an illness or injury caused by another party, this
Plan has the right to seek repayment of those benefits from
the party that caused the illness or injury or from the
participant. This means that the Plan is “subrogated.”
This right exists automatically, without additional notice
and without obtaining consent of any person. This right may
be asserted against any party who may be liable for the
illness or injury, including, but not limited to, a
participant’s insurance company, or nay uninsured motorist
or automobile insurance coverage maintained by the
participant. By participating in this Plan or accepting the
benefits of coverage hereunder, a participant is deemed to
have consented and agreed to this right of subrogation and
granted a lien or privilege in favor of the Plan
Administrator with respect to any funds received in
connection with any illness or injury subject to subrogation
and to have agreed to reimburse the Plan Administrator for
all benefits paid on account of the illness or injury.
* * *
The Plan will be subrogated to all rights of recovery of the
participant against any source to the extent of any benefits
paid by this Plan with respect to such expense, and the
injured participant shall not do anything to prejudice such
rights of the Plan. The participant shall execute and
deliver any instruments and papers, and take any such
actions, necessary to secure such rights to the Plan;
however, failure to obtain any such written assignment
shall not affect the right of the Plan to recover benefits
paid.
Gilsbar Plan Summary, R. at 528-29 (No. 00-1815) (emphasis
added).
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For the above reasons, we agree with the district court’s
holding that the subrogation exception to the collateral source
rule is applicable to this case. We conclude, however, that the
district court erred in reducing Mariano’s recovery because of Port
Ship’s alleged fault. We, therefore, VACATE the district court’s
judgment and REMAND for entry of judgment consistent with this
opinion.
AFFIRMED in part, VACATED in part, and REMANDED.
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