Case Name: Atlantic Sounding Co., Inc. v. Timothy F. Petrey
Date Decided: November 10, 2009
Court: U.S.D.C. Eastern District of Louisiana
Judge: Judge Lemmon
Citation: 2009 WL 3834011 (E.D.La.)

Background:
Defendants, Great Lakes Dredge & Dock LLC and Atlantic Sounding Co. ("Atlantic") submitted, before this Court, motions for summary judgment in response to plaintiff's, Timothy F. Petrey ("Petrey") claims under Jones Act for negligence, unseaworthiness, and maintenance and cure.

Petrey was employed as a seamen by Atlantic performing deckhand services aboard an Atlantic owned tug. The tug was towing a barge and a bridle ran from the front of the barge to the vessel in a V-shape with two chains. The tow bridle broke and the tug continued to pull the barge for another hour or so.

Petrey was ordered to untangle the tow bridle and when a wire snapped, it flipped him on the deck, causing his prosthetic hip to become damaged. Petrey was placed in a temporary brace and it was determined Petrey would need additional surgery

Atlantic sought a declaration that it was not liable for maintenance and cure because Petrey failed to disclose that he had right hip replacement prior to his employment.

Petrey counterclaimed under the Jones Act and general maritime law alleging, Jones Act negligence, unseaworthiness, and a claim for maintenance and cure. Petrey also filed a third-party complaint against Great Lakes, the owner of the barge, alleging the barge was unseaworthy. Great Lakes filed a cross claim against Atlantic alleging any damage Petrey sustained was due to Atlantic's negligence and Atlantic responded seeking indemnity/contribution due to the construction of the barge.

Both defendants filed motions for summary judgment in response to Petrey's claim.

Issue:
Did this Court grant defendants' motions for summary judgment thus precluding Petrey from asserting Jones Act negligence, unseaworthiness, and maintenance and cure claims?

Held:
First, Atlantic contended that Petrey cannot recover maintenance and cure benefits because he willfully concealed his total, right hip replacement surgery. Atlantic argued that Petrey was required to undergo a post-offer medical examination and that he concealed his medical history on a report of medical history form. Atlantic contended Petrey would not have been hired had they known about the hip.

Petrey however, contended that he is not barred from receiving m/c payments because the Captain and crew were aware of his hip condition for about a year prior to the accident. Petrey claimed he carelessly filled out the medical questionnaire and did not willfully conceal his hip condition.

This  Court found Petrey introduced sufficient evidence creating genuine issues of material fact whether he willfully concealed his hip condition and if Atlantic would have hired him.

Moreover, Atlantic contended that Petrey cannot establish evidence that Atlantic did not provide Petrey with a safe place. Atlantic argued that Petrey was performing a simple duty, checking free lines and walking on the deck, when he was injured.

Petrey countered arguing that there are disputed issues of material fact as to Atlantic's liability. Petrey argued that Atlantic was liable, negligently, for ordering him to perform an unsafe procedure without help or proper equipment. Petrey contended that he was unable to, and the Captain should have known, he would be unable to perform the task alone.

This Court, again, found that Petrey had presented sufficient evidence to establish a genuine issue of material fact whether  it was safe for him to perform the task, simple as it may be, by himself.

Great Lakes contended that Petrey could not establish that they were negligent in a manner that would have caused or contributed to his accident and injury. Greak Lakes argued that even if the entry to the barge was blocked or obstructed, Petrey was not prevented from "easily" boarding the barge and that any blockade did not cause his injury. Moreover, Great Lakes asserted a faulty tow line played no role in the accident.

Petrey countered, successfully, that Great Lakes failed to perform its duty to provide reasonable care under the circumstances by failing to maintain and inspect the towing rig. Accordingly, Petrey's evidence was sufficient to defeat Great Lakes' motion for summary judgment on his negligence claim.

Finally, this Court granted Great Lakes' motion for summary judgment against Petrey's unseaworthiness because a Jones Act seaman cannot maintain a seaworthiness action against a vessel on which he is not a crew member.

Comment:
Employers will sometimes try to assert the "concealment" defense in response to a maintenance and cure action.

This will only prevail if the vessel owner can show that (1) the claimant intentionally misrepresented or concealed medical facts, (2) the non-disclosed facts were material to the employer's decision to hire the claimant, and (3) a connection exists between the information and the injury complained of in the lawsuit.

Steve Gordon