Ward v. Icicle Seafoods, Inc.

MEMORANDUM ^**

Zander Ward, a fish processor aboard a ship owned by Idde Seafoods, Inc («Icicle>,); was assauited and injured by a fellow crew member while Icicle>s ghip was located off the coast of Alaska, He appealg the district court>s denial of attorneys fees and punitive damageS) wUch he sought in connection with his successful motion to compel Icicle to pay maintenance and cure for the injuries he sustained during the assault We have jurisdiction pursuant to 28 U.S.C. § 1291. afdrm

The district court did not abuse its discretion in concluding that Icicle’s failure to pay maintenance and cure was not “arbitrary, recalcitrant or unreasonable” — the legal standard we have applied to requests for attorneys fees in maintenance and cure actions. Kopczynski v. The Jacqueline, 742 F.2d 555, 559 (9th Cir.1984); see also Vaughan v. Atkinson, 369 U.S. 527, 530-31, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962) (allowing attorneys fees against shipowner who willfully and persistently failed to investigate claim for maintenance and cure by a seaman). In the weeks immediately after the assault, as he was still receiving unearned wages from Icicle, Ward expressly indicated that his symptoms had subsided and that he did not need or wish to receive medical attention. When, nearly six months later, Ward’s symptoms worsened and he sought payment of maintenance and cure, Icicle requested evidence from Ward’s counsel substantiating Ward’s description of the assault to his treating physician. The district court did not abuse its discretion in finding that Icicle’s failure to pay maintenance and cure immediately was not “arbitrary, recaícitrant or unreasonable.” Kopczynski 742 F.2d at 559.

We decline Ward’s invitation to create a per se rule whereby seamen who are forced to file suit in federal court to obtain payment of maintenance and cure are automatically entitled to recover attorneys fees. Such a holding would be irreconcilable with Kopczynski 742 F.2d at 559, and Ward has pointed to no intervening higher authority “undercutting] the theory or reasoning underlying” that decision. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc).

We similarly are not at liberty to revisit our decision in Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495 (9th Cir.1995). In that case, we held that “punitive damages are not available ... where the shipowner has been willful and persistent in its failure to investigate a seaman’s claim for maintenance and cure or to pay maintenance.” Id. at 1505. As a three-judge panel, we are bound by Glynn. See Miller, 335 F.3d at 900. We therefore affirm the district court’s denial of punitive damages.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Cir. R. 36-3.