Rowan Companies Inc v. McCurdy ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-20759
Summary Calendar
_____________________
ROWAN COMPANIES, INC.,
Plaintiff-Counter
Defendant-Appellee,
versus
BERWIN B. MCCURDY, JR.,
Defendant-Counter
Claimant-Appellant.
_______________________________________________________
Appeal from the United States District Court for
the Southern District of Texas
(H-96-CV-2671)
_______________________________________________________
March 24, 1998
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
The district court ruled by summary judgment that appellant
Berwin McCurdy, Jr.’s personal injury claim under the Jones Act1
and his claim for maintenance and cure were barred by
limitations. McCurdy argues that he raised a triable issue of
*
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this opinion should not be published and is not precedent except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.
1
46 U.S.C. § 688.
fact on whether his employer, appellee Rowan Companies, Inc.,
should be equitably estopped from asserting limitations. We
affirm.
Under summary judgment practice “there is no issue for trial
unless there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party. If the evidence
is merely colorable, or is not significantly probative, summary
judgment may be granted.”2 If the record as a whole could not
lead a rational jury to find for the nonmoving party, there is no
genuine issue for trial and summary judgment is warranted.3
According to his affidavit, McCurdy was injured on or about
July 18, 1993, while working on a Rowan jack-up rig in Alaskan
waters. In 1996, after suffering continued back problems,
McCurdy underwent back surgery. A Rowan insurance carrier denied
coverage for the surgery on grounds that medical reports
indicated the surgery was related to the 1993 injury. Though not
evident from the record, the carrier may have believed that the
injury was not covered under its policy because McCurdy was a
seaman, the injury fell under the Jones Act, or some similar
reason.
2
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986) (citations omitted).
3
Capital Concepts Properties 85-1 v. Mutual First, Inc.,
35 F.3d 170, 174 (5th Cir. 1994).
2
Rowan filed suit for declaratory judgment on August 19,
1996, seeking a ruling that any claim McCurdy might have arising
out of his July 1993 injury was time-barred. McCurdy followed
with a counterclaim seeking affirmative relief. The Jones Act is
subject to a three-year statute of limitations.4 The Jones Act
claim is therefore barred by limitations unless the limitations
period was tolled.
McCurdy argues that limitations should be tolled under the
doctrine of equitable estoppel. “Equitable estoppel requires (1)
a material misrepresentation or concealment (2) made with actual
or constructive knowledge of the true facts (3) with the intent
that the misrepresentation or concealment be acted upon (4) by a
third party without knowledge or means of knowledge of the true
facts (5) who detrimentally relies or acts on the
misrepresentation or concealment.”5 In the context of a
limitations defense we have recognized that equitable estoppel
applies where the defendant’s “conduct induced or tricked a
plaintiff into allowing a filing deadline to pass.”6 “However,
in order to create an estoppel, the conduct of the defendant must
4
46 U.S.C. § 688, incorporating by reference 45 U.S.C. §
56.
5
Matter of Christopher, 28 F.3d 512, 520 (5th Cir. 1994)
6
McAllister v. FDIC, 87 F.3d 762, 767 (5th Cir. 1996).
3
be so misleading as to cause the plaintiff’s failure to file
suit.”7
McCurdy relies on a September 21, 1993 letter from Eleanor
White, a Rowan workers’ compensation supervisor in Houston, to
Derek Necaise at the Anchorage office. The letter states in
pertinent part:
This is to explain the reason for filing the claim for
Berwin McCurdy with Lindsey & Morden as a worker’s comp
incident. At the time of onset of Mr. McCurdy’s back
pain, we felt it was necessary to determine exactly
what was going on and the extent of his problem.
Appointments were scheduled with specialists in Houston
for the purpose of having testing done and to receive
medical reports that would give us a diagnosis and an
evaluation of his condition, as to whether or not he
could continue working, or should remain off from work.
We agreed to have this paid as a worker’s comp expense,
and thus was filed with our carrier.
McCurdy’s affidavit states that White gave him the letter to
deliver to Necaise, and that he kept a copy of the letter. The
affidavit also states:
I know that I would have taken steps to protect my
legal interest, if it had not been represented to me
that the 1993 incident was a workers compensation
claim. Not only did Eleanor White represent this to me
by telling me it was a workers compensation injury, and
by providing me the letter to Derrick Necaise . . . but
. . . it was told to me by Paul Hopkins that this would
be treated as a workers compensation injury, as he had
been informed by Eleanor White, workers compensation
supervisor.”
7
Sanchez v. Loffland Bros. Co., 626 F.2d 1228, 1231 (5th
Cir. 1980).
4
Hopkins confirmed in an affidavit that White told him McCurdy’s
injury “was being treated as a ‘workers compensation’ injury.”
Hopkins states that “I never informed [McCurdy] as his supervisor
that this was falling under the Jones Act.”
In her deposition White testified that she would not have
asked McCurdy to deliver the letter, and denied giving McCurdy
the letter in a taped telephone conversation with him. In his
deposition, McCurdy conceded that the letter was not addressed to
him, that Rowan had not authorized him to make a copy, and that
Rowan did not know of his copy until after the suit was filed.
He agreed that he had had no “discussions with anybody employed
by Rowan or representing -- representing Rowan about entitlement
to benefits from the Texas Workers’ Compensation Commission.”
Consistent with his affidavit, McCurdy maintained that “they told
me it was a workmen’s comp incident,” but conceded that no one at
Rowan told him he was not a seaman or that he did not have a
claim under the Jones Act. He testified that the Jones Act was
not mentioned. In August and September of 1993 he received
weekly checks from Lindsey Morden, a claims management company.
The checks and attached stubs indicate that they were
“maintenance” checks paid on behalf of Rowan.
On this record summary judgment was properly granted on the
Jones Act claim. A rational jury could not find that the
elements of equitable estoppel were present. First, it could not
find that Rowan misrepresented or concealed material facts with
5
knowledge of the true facts. McCurdy does not show that the
letter, stating that Rowan initially treated the injury as a
workers’ compensation claim, was untrue. There is no evidence
that Rowan knew that years later one of its insurers would deny a
claim by McCurdy for surgery, on grounds that the surgery was
related to an injury McCurdy had sustained while working on a
Rowan rig.
Second, McCurdy did not show that Rowan intended its alleged
misrepresentation or concealment to induce McCurdy to refrain
from filing suit under the Jones Act. Rowan never told McCurdy
he did not have a Jones Act claim. It did not address the letter
to him or authorize him to copy it. The mere fact that an
employer views an injury as falling under the workers’
compensation laws, or that an employee receives benefits under
such laws, does not preclude the employee from filing a Jones Act
claim.8 Rowan sent McCurdy checks designated “maintenance”
compensation, a maritime term. On this record, a rational jury
could not find that (1) Rowan secretly believed all along that
the injury fell under the Jones Act, and (2) told McCurdy the
claim was a workers’ compensation claim to induce or trick him
from timely filing a Jones Act suit.
8
For example, in Sharp v. Johnson Bros. Corp., 973 F.2d
423, 425-26 (5th Cir. 1992), we noted that receipt of voluntary
payments under the federal Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. § 901 et seq., does not preclude suit
under the Jones Act.
6
Third, McCurdy’s deposition indicates that he did not rely
on the alleged representation from Rowan that his claim was a
workers’ compensation claim instead of a Jones Act claim. He
testified in his deposition:
Q Okay. My question to you is: Had anybody
told you before July 25, 1996, that, “We’re
paying you these benefits under the Jones Act
or General Maritime Law --”
A No, sir.
Q -- the truth is --
A Oh.
Q -- you wouldn’t have taken any legal investigation
under those circumstances so long as you were being
paid the same benefits you were being paid anyway?
A Yes, sir.
This testimony is arguably inconsistent with McCurdy’s affidavit,
in which he states “I know that I would have taken steps to
protect my legal interest, if it had not been represented to me
that the 1993 incident was a workers compensation claim.”
However, “[i]t is well settled that this court does not allow a
party to defeat a motion for summary judgment using an affidavit
that impeaches, without explanation, sworn testimony.”9
McCurdy also argues that in 1996 Rowan denied a request for
travel expenses he incurred traveling to Houston for medical
treatment in 1993, and that Rowan failed to file a report with
9
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495
(5th Cir. 1996).
7
the Texas Workers’ Compensation Commission. We fail to see how
these events toll limitations on McCurdy’s Jones Act claim.
The claim for maintenance and cure is also subject to a
three-year statute of limitations.10 The only difference with
the Jones Act is that the limitations period on a maintenance and
cure claim runs from the date the plaintiff becomes
incapacitated, rather than the date of the injury.11 By his own
affidavit, McCurdy became incapacitated the day after his injury.
This claim, therefore, is also barred by limitations.
AFFIRMED.
10
46 U.S.C. § 763a; Cooper v. Diamond M Co., 799 F.2d 176,
179 (5th Cir. 1986).
11
Id.8