Johnson v. Cenac Towing Inc ( 2008 )

REVISED October 24, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 07-30113 September 24, 2008
Charles R. Fulbruge III
LEROY JOHNSON Clerk
Plaintiff - Appellee
v.
CENAC TOWING INC.
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-914
Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.
EDITH H. JONES, Chief Judge:
Leroy Johnson (“Johnson”) sustained injuries while working as a seaman
for Cenac Towing, Inc. (“Cenac”). He sued Cenac in federal court for negligence
under the Jones Act, unseaworthiness, and maintenance and cure benefits.
Following a bench trial, the district court denied maintenance and cure because
Johnson willfully concealed his preexisting physical problems from Cenac, but
the court awarded him damages under the Jones Act. Cenac appeals. We must
vacate and remand for further consideration of Johnson’s possible contributory
negligence, but otherwise affirm the court’s rulings.
No. 07-30113
BACKGROUND
Johnson worked as a tankerman for Cenac from May 2003 to May 2004
and from May 2005 to December 2005. Before each period of employment with
Cenac, he filled out an employment application and underwent a pre-
employment physical examination. On both his 2003 and 2005 applications, he
indicated that he had never suffered any on-the-job injuries and that he did not
have any physical conditions which might interfere with or hinder his job
performance. For Cenac’s pre-employment physicals, Johnson completed
medical history questionnaires in which he indicated that he had never hurt his
back and never received disability compensation. He did acknowledge that he
had undergone surgery, but only for a shoulder injury in 1987.
Johnson’s answers on his applications and questionnaires were not
truthful. Before he applied to work for Cenac, he had been twice injured while
working for other offshore companies. In 1994, Johnson injured his neck and
back in an on-the-job accident, which left him disabled for at least ten months.
He underwent neck surgery almost a year later as a result of the accident. In
2001, Johnson injured his back again in an on-the-job accident and was disabled
for about thirteen months. He received steroid injections to treat his back injury
and experienced other ongoing urological problems as a result of the accident.
After each accident, Johnson obtained compensation benefits, sued his employer,
and collected damages. He intentionally concealed all of these prior accidents,
injuries, and claims from Cenac during the hiring process. The doctor who
administered Johnson’s two physical examinations on behalf of Cenac stated
that had he known of Johnson’s prior work-related accidents he would not have
approved him for employment because of the “possibility of further endangering
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No. 07-30113
himself in any kind of way . . . in this case his neck and his back and to try to
protect others around him.”
On December 14, 2005, Johnson injured his back again while working as
a tankerman aboard a Cenac vessel that was towing barges near Mobile,
Alabama. Johnson and coworker Louis Celestine were carrying a 175-pound
cross-over hose aboard one of the barges when Celestine tripped and dropped his
part of the load. Suddenly bearing a heavier weight, Johnson exclaimed that
he had hurt his back. He immediately reported the accident and his injury to
the crew.
For several months, Johnson was treated for low back pain and urological
problems. The district court found that these injuries resulted from an
aggravation of Johnson’s pre-existing back condition stemming from his 2001
accident. Johnson incurred $38,095.80 in medical expenses. Some of the
expenses inexplicably were paid by the Blue Cross Blue Shield group health
insurance plan that Cenac offers to cover only employees’ non-work-related
injuries.1 Cenac pays one hundred percent of its employees’ insurance premiums
for the plan.
Johnson filed suit against Cenac for negligence under the Jones Act,
46 U.S.C. § 30104, unseaworthiness under general maritime law, and
maintenance and cure. Cenac countered that Johnson was not entitled to
1
It is unclear whether Blue Cross paid these expenses because Johnson falsely told his
health care providers that his injuries were non-work-related or whether Blue Cross
erroneously assumed that its policy covered Johnson’s injuries. The district court made no
factual findings on this issue. On appeal, Cenac argues that Johnson lied to his health care
providers, but it provides no citations to the record to support this claim. Our independent
review of the record indicates that Cenac offered no evidence indicating that Johnson lied to
his health care providers about the nature of his injuries. He may have done so, but we cannot
assume that he lied simply because Blue Cross paid his medical bills for work-related injuries.
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No. 07-30113
recover either damages or maintenance and cure because he willfully concealed
his prior injuries during Cenac’s hiring process. At a minimum, it asserted, any
damages awarded to Johnson should be reduced because the concealment
rendered him contributorily negligent. Cenac also argued that if Johnson were
awarded damages for past medical expenses, the company should receive a set-
off for the health insurance payments made by the Blue Cross plan, which it
established and fully funded.
After a two day bench trial, the district court denied maintenance and
cure; awarded judgment as a matter of law for Cenac on unseaworthiness; found
Cenac entirely at fault for Johnson’s injuries; awarded Johnson $130,226 in
Jones Act damages, including all past medical expenses; and ruled that
payments made by Blue Cross were a collateral source not subject to set-off
against Johnson’s award. On appeal, Cenac argues that the district court erred
in (1) holding that Johnson’s intentional concealment of material medical facts
did not bar his Jones Act negligence claim; (2) finding that Johnson was not
contributorily negligent for concealing his prior injuries; and (3) denying its
request to deduct health insurance payments Johnson received from his damage
award for past medical expenses.
DISCUSSION
A. McCorpen Defense and the Jones Act
Generally, an employer “must pay maintenance and cure to any seaman
who becomes ill or suffers an injury while in the service of the vessel, regardless
of whether either party was negligent.” Bertram v. Freeport McMoran, Inc.,
35 F.3d 1008, 1012 (5th Cir. 1994) (internal quotation marks omitted). An
employer, however, is allowed to rely on certain legal defenses to deny a claim
for maintenance and cure. Brown v. Parker Drilling Offshore Corp., 410 F.3d
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166, 171 (5th Cir. 2005) (citing McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547(5th Cir. 1968)). Among these, the McCorpen defense applies when an injured
seaman has “willfully concealed from his employer a preexisting medical
condition.” Id. To establish a McCorpen defense, an employer must show that
the seaman intentionally misrepresented or concealed medical facts; the non-
disclosed facts were material to the employer’s decision to hire the seaman; and
a connection exists between the withheld information and the injury complained
of in the lawsuit. Id.In this case, the district court found that all three elements of the
McCorpen defense were satisfied and accordingly denied recovery for
maintenance and cure. Cenac argued that its McCorpen defense should also bar
Johnson’s claim under the Jones Act, which holds an employer liable to a seamen
for injuries “resulting in whole or in part from the negligence” of the employer
or its employees or agents. 45 U.S.C. § 51; Gautreaux v. Scurlock Marine, Inc.,
107 F.3d 331, 335 (5th Cir. 1997) (en banc).2 But the district court disagreed,
stating that “the existence of the McCorpen defense does not automatically taint
a Jones Act claim.”
Cenac continues to urge that the McCorpen defense should extend to “any
damages sought by a seaman for only the aggravation of his prior and
intentionally concealed medical condition.” This legal argument, which we
review de novo on appeal, is foreclosed by precedent. The Supreme Court’s
decision in Still v. Norfolk & Western Railway Co., 368 U.S. 35, 82 S. Ct. 1482
The Jones Act, 46 U.S.C. § 30104, makes the provisions of the Federal Employers’
Liability Act (“FELA”), such as 45 U.S.C. § 51, applicable to seamen. Gautreaux, 107 F.3d at
335. Jones Act cases, therefore, follow cases under FELA. Brown, 410 F.3d at 178.
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(1961), makes clear that a “seaman . . . is not barred from suit under the Jones
Act because he conceals a material fact in applying for employment.” Gypsum
Carrier, Inc. v. Handelsman, 307 F.2d 525, 530 (9th Cir. 1962); Still, 368 U.S. at
35, 82 S. Ct. at 149 (holding that a railroad cannot “escape” liability under FELA
“by proving that an [injured] employee . . . has obtained his job by making false
representations upon which the railroad rightfully relied in hiring him”).3 The
district court correctly concluded that McCorpen does not bar a Jones Act claim.
B. Contributory Negligence and the Jones Act
Although the McCorpen rule is not applicable to a Jones Act negligence
claim, contributory negligence is an affirmative defense that diminishes recovery
in proportion to the seaman’s fault. 45 U.S.C. § 53; see Norfolk Southern Ry. Co.
v. Sorrell, 549 U.S. 158, 127 S. Ct. 799, 802 (2007). To establish that a seaman
is contributorily negligent, an employer must prove negligence and causation.
See Sorrell, 127 S. Ct. at 807; see also Gautreaux, 107 F.3d at 338.
A seaman is negligent if he fails to act with ordinary prudence under the
circumstances. See Gautreaux, 107 F.3d at 339. “The circumstances of a
seaman’s employment include not only his reliance on his employer to provide
a safe work environment but also his own experience, training, or education.
The reasonable person standard, therefore, [in] a Jones Act negligence action
becomes one of the reasonable seaman in like circumstances.” Id. (emphasis in
original). The standard of causation in Jones Act cases is not demanding.4 See,
3
See also Jauch v. Nautical Service, Inc., 470 F.3d 207, 213-14 (5th Cir. 2006); Brown,
410 F.3d at 178; Compton v. Luckenbach Overseas Corp., 425 F.2d 1130, 1133 (2d Cir. 1970).
4
In Sorrell, Justice Souter, joined by Justices Scalia and Alito, argues in a concurring
opinion that the standard of causation in FELA cases, and thus Jones Act cases, is not more
“relaxed” than in tort litigation generally. Sorrell, 127 S. Ct. at 809-12 (Souter, J., concurring).
6
No. 07-30113
e.g., Gautreaux, 107 F.3d at 335 (“[T]he Supreme Court [has] used the term
‘slightest’ to describe the reduced standard of causation between the employer’s
negligence and the employee’s injury in FELA § 51 cases.”). To establish
causation, an employer must show that a seaman’s negligence “played any part,
even the slightest, in producing the injury.” Chisolm v. Sabine Towing &
Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir. 1982) (citing Rogers v. Missouri
Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 448 (1957)). See also Sorrell,
127 S. Ct. at 802 (holding that the same causation standard applies to employer
negligence and employee contributory negligence in FELA cases). Even under
the Jones Act, however, a party must establish more than mere “but for”
causation. See Gavagan v. United States, 955 F.2d 1016, 1019-20 (5th Cir. 1992)
(“The negligence must be a ‘legal cause’ of the injury.”).
The district court held that Johnson was not contributorily negligent for
willfully concealing his previous injuries during Cenac’s employment application
process. The court cited Brown v. Parker Drilling Offshore Corp., supra, as the
Fifth Circuit’s confirmation “that the existence of the McCorpen defense does not
automatically taint a Jones Act claim.” The court then rejected Cenac’s
“argument that if not for Johnson’s misrepresentations, this accident would not
have happened.” It found that the “condition of Johnson’s back and neck did not
contribute to causing the accident,” and the fact that Johnson sustained on-the-
He contends that this “relaxed” causation standard stems from a misunderstanding of Rogers
v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 448 (1957). Id. at 809. To correct
that misunderstanding, Justice Souter provides a detailed analysis of Rogers and related cases
showing that it was not intended “to water down the common law requirement of proximate
cause” in FELA cases. Id. at 811.
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No. 07-30113
job injuries three years before his December 2005 accident did not make him
contributorily negligent.
In a bench tried admiralty case, a district court’s findings concerning
negligence and causation are findings of fact reviewable by this court only for
clear error. See Gavagan, 955 F.2d at 1019. We entertain a strong presumption
that the court’s findings must be sustained even though this court might have
weighed the evidence differently. This said, the court’s decision on contributory
negligence, which is fully paraphrased above, is hard to square with its
recitation of facts elsewhere in the opinion. The district court found that
Johnson’s low-back pain caused by the 2005 accident was “an aggravation of a
pre-existing back condition stemming from his 2001 maritime accident.” Both
injuries, as the court noted, affected his L5-S1 intervertebral disc. Going
further, in its discussion of the McCorpen defense, the court found a clear
connection, a “causal link,” between Johnson’s preemployment misrepresen-
tations to Cenac and his current injury.
It is likely true, as the court found, that Johnson’s weakened back did not
cause Celestine to drop the 175-pound hose they were both carrying. But it also
seems likely that Johnson would never have been employed by Cenac had he
revealed the previous injuries, and having misrepresented himself onto the
payroll, he set himself up for the sort of aggravating injury found by the district
court. Both this court and the Supreme Court have previously considered the
contributory negligence ramifications of preemployment deception. In Still, the
Supreme Court reversed and remanded for trial after rejecting the proposition
that a concealed preemployment physical defect bars FELA relief as a matter of
law. Still, 368 U.S. at 46, 82 S. Ct. at 154-55. Nevertheless, the Court noted the
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No. 07-30113
relevance, in appropriate circumstances, of such a pre-existing condition to
ascertaining
whether the injury complained of was caused by the railroad’s
negligence 368 U.S. at 46 n.14, 82 S. Ct. at 154 n.14. Similarly, in Savoie v. Otto
Candies, Inc., 692 F.2d 363, 372 (5th Cir. 1982), this court upheld a finding of
contributory negligence on the part of a seaman who
knowingly exposes himself to conditions of employment while aware
of an illness or disability which makes those conditions unsafe to
him, or where a seaman has the possibility of securing relief from
unsafe conditions by informing his superiors of them, but continues
to work without doing so . . . .
See also Gavagan v. United States, 955 F.2d 1016 (5th Cir. 1992) (upholding one
hundred percent contributory negligence of seaman who concealed from his
prospective maritime employer the limited use of his hand due to surgery and
proceeded to re-injure it while trying to open a valve on a tanker).
From these cases, it appears that contributory negligence may be found
where a seaman has concealed material information about a pre-existing injury
or physical condition from his employer; exposes his body to a risk of reinjury or
aggravation of the condition; and then suffers reinjury or aggravation injury. In
this case, we are unsure whether the court fully analyzed the potential for
contributory negligence, because of the tension between its findings of (a) no
causal connection between Johnson’s employment misrepresentations and the
accident, and (b) the “causal link” between the misrepresentations and Johnson’s
injury. Moreover, at another point in its opinion, the court observes that
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No. 07-30113
Johnson performed heavy labor for over a year for Cenac without suffering an
injury. This fact may ameliorate the tension, although it seems somewhat
inconsistent with the “causal link” finding. We do not instruct how the court
should ultimately rule on whether Cenac has proved Johnson’s causative
contributory negligence in deliberately exposing himself to heavy labor with a
weakened back, but we must remand for the court to reevaluate its findings on
this issue.
C. The Collateral Source Rule
The collateral source rule bars a tortfeasor from reducing the damages it
owes to a plaintiff “by the amount of recovery the plaintiff receives from other
sources of compensation that are independent of (or collateral to) the tortfeasor.”
Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir. 1994); Phillips v. Western Co.
of North America, 953 F.2d 923, 929 (5th Cir. 1992) (“[T]he collateral source rule
. . . generally denies to a tortfeasor a reduction in its liability by any amounts the
plaintiff receives from a source collateral to, or independent of, the tortfeasor.”).5
5
The Jones Act, as mentioned, adopted by reference certain sections of FELA. At least
one of our sister circuits has stated that the sections adopted include 45 U.S.C. § 55, which
provides an employer-tortfeasor a set-off from an employee’s damage award for “any sum it has
contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to
the injured employee.” See Blake v. Delaware & Hudson Rwy. Co., 484 F.2d 204, 205 (2d Cir.
1973). Specifically, § 55 states:
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 chapter, shall to that extent be void: Provided, That in any
action brought against any such common carrier under or by virtue of any of the
provisions of this chapter, such common carrier may set off therein any sum it
has contributed or paid to any insurance, relief benefit, or indemnity that may
have been paid to the injured employee or the person entitled thereto on account
of the injury or death for which said action was brought.
The Jones Act cases from this circuit that address the application of the collateral
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No. 07-30113
The district court ruled that because the Blue Cross health insurance plan was
a collateral source, its benefits could not be deducted from his damage award.
Cenac argues that the district court erred. We review de novo the district court’s
conclusion that the Blue Cross payments are a collateral source. Davis, 18 F.3d
at 1245.
One purpose of the collateral source rule is to ensure that tortfeasors bear
the costs of their own conduct. See Davis, 18 F.3d at 1244 n.21. Properly
understood, however, the “rule also prevents tortfeasors from paying twice for
the same injury—a result that would achieve both overdeterrence and
overcompensation.” Id. Another purpose of the collateral source rule is to
protect plaintiffs who have the “foresight to obtain insurance.” Phillips, 953 at
930. See also Davis, 18 F.3d at 1244 n.21. “If tortfeasors could set off
compensation available to plaintiffs through collateral sources, then plaintiffs
who pay their own insurance premiums would suffer a net loss because they
would derive no benefit from any premiums paid.” Davis, 18 F.3d at 1244 n.21.
“Additionally, such plaintiffs might be left exposed to other misfortunes once
their insurance coverage was depleted by the tortfeasors’ negligence.” Davis,
18 F.3d at 1244 n.21 (citing Phillips, 953 F.2d at 930).
In most cases, identifying whether a source of compensation is
independent of a tortfeasor is “not a difficult task.” Phillips, 953 F.2d at 929.
For example, insurance policies and other forms of protection purchased by a
source rule to employer funded benefit plans, such as Davis and Phillips, do not mention § 55.
Nonetheless, the approach these cases use to determine whether the collateral source rule
applies appears consistent with the approach used in similar FELA cases from other circuits
that do reference and discuss § 55. See Clark v. Burlington, 727 F.2d 448, (8th Cir. 1984);
Blake, 484 F.2d at 206-07.
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No. 07-30113
plaintiff cannot reduce a damage award, because the tortfeasor has no
connection with these types of benefits. Id. at 930-31. But when an employer
–tortfeasor funds a benefit plan, like the group health insurance plan at issue
here, “the justifications for denying a setoff become less compelling.” Id. at 931.
Generally, however, when an employee has bargained for a fringe benefit
like health or life insurance as additional consideration for employment,
“compensation received by the employee under that fringe benefit should not be
deducted from damages awarded to the employee as a result of the employer’s
negligence.” Davis, 18 F.3d at 1244. Since the employee is “already
contractually entitled to that benefit, allowing the employer to deduct such
compensation would both undercompensate the employee and provide the
employer with an undeserved windfall.” Id. To evaluate whether a benefit
derives from a collateral source, we “ordinarily assess” whether that benefit is
in the nature of a fringe benefit or deferred compensation or instead reflects a
tortfeasor’s effort to indemnify itself against potential legal liability. See Davis,
18 F.3d at 1244; Phillips, 953 F.2d at 932.
Phillips listed some factors that may assist courts in distinguishing
between fringe benefits and benefits intended to respond to legal liability. Those
factors are (1) whether the employee contributes to the benefit plan; (2) whether
the benefit plan stems from a collective bargaining agreement; (3) whether the
plan covers both work-related and non-work-related injuries; (4) whether
payments under the plan correlate with the employee’s length of service; and
(5) whether the plan contains specific language requiring benefits received under
the plan to be set-off against a judgment adverse to the tortfeasor. Phillips,
953 F.2d at 932 (citing Allen v. Exxon Shipping Co., 639 F. Supp. 1545, 1548 (D.
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No. 07-30113
Me. 1986)). In addition to finding these factors relevant, we have stated that the
ultimate “inquiry remains whether the tortfeasor established the plan as a
prophylactic measure against liability.” Davis, 18 F.3d at 1245.
The Phillips factors seem to point toward a finding that the Blue Cross
payments were not a collateral source. Johnson did not bargain with Cenac for
a fringe benefit that covered work-related injuries. Instead, Cenac established
and fully funded the Blue Cross health insurance plan to cover only non-work-
related injuries. The plan did not arise from a collective bargaining agreement,
and it was not related to an employee’s length of service. Thus, Johnson was not
“contractually entitled” to the payments that Blue Cross made to cover the
medical expenses arising from his injury. In this case, allowing Cenac to deduct
such medical payments from his recovery would neither undercompensate
Johnson nor provide Cenac with an undeserved windfall. To the contrary,
providing Cenac a set-off would achieve one of the purposes of the collateral
source rule: preventing a tortfeasor from paying twice for the same injury.
Davis, however, constrains us to hold that the Blue Cross payments were
from a collateral source. There, a seaman sued his employer under the Jones
Act for exposing him to chemicals that allegedly caused him to develop an
extremely rare disease. Davis, 18 F.3d at 1240. Before filing suit, the seaman
received medical and disability benefits from a group insurance plan that was
established and largely funded by his employer to compensate employees only
for non-work-related injuries and illnesses. Id. While recognizing that the case
presented a close question, and that several Phillips factors weighed against
collateral source status, this court concluded that the plan’s “exclusive
application to nonwork-related injuries [was] strong evidence that [the employer]
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No. 07-30113
did not establish the [p]lan to reduce its own legal liability.” Davis, 18 F.3d at
1245 (emphasis in original). The opinion noted that because the defendant
“would not ordinarily be liable for nonwork-related injuries of its employees,”
the plan applied only under circumstances in which it was “unlikely to be found
liable for the injuries or illnesses of its employees.” Id. Thus, the plan “. . . [was]
closely akin to a fringe benefit — part-and-parcel of its employees’ compensation
package.” Id.The court acknowledged that including medical expenses as part of the
damage award after the employer had already paid Davis’s insurance premiums
appeared to constitute double payment in “contravention of a fundamental policy
underlying the collateral source rule.” Davis, 18 F.3d at 1245 n.31.
Nevertheless, “refusing to deduct benefit payments from the plaintiff-employee’s
damage award does not make the employer pay twice–any more than refusing
to set off [the] employee’s salary would make the employer pay twice.” Id. This
explanation, unfortunately, ignores that Davis was not entitled to receive any
benefits from the particular plan for work-related injuries. While offering no
direct solace to the employer, the court opined that ultimately the seaman might
not be paid twice for his injury: The insurance company might, as a subroger,
have the right to recover from Davis the benefits it erroneously paid. Id.Under Davis, the plan’s exclusive coverage of non-work related injuries is
the dispositive factor in determining that the plan is a collateral source. Even
though Johnson was not contractually entitled to the benefits he received from
Blue Cross, and Cenac entirely paid his premiums for the plan, we are required
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No. 07-30113
to affirm the district court’s ruling that the Blue Cross payments are a collateral
source that cannot be set off against Johnson’s damage award.6
Under the terms of the Blue Cross plan, however, if Blue Cross extends
benefits for a work-related injury and the employee’s “injury or illness is found
to be compensable under law,” then Johnson or Cenac (as the tortfeasor) “must
reimburse” Blue Cross for the benefits extended. Additionally, the plan entitles
Blue Cross to recover any payment made in error to an employee for non-covered
services. If Blue Cross were to seek reimbursement from Cenac for the benefits
extended to Johnson, Cenac would be placed in the position of paying three times
for Johnson’s injury. That result certainly cannot be justified under the
collateral source rule. In such an event, Johnson must hold Cenac harmless for
reimbursement demanded by Blue Cross against Cenac.
CONCLUSION
For the reasons stated, the judgment of the district court is VACATED and
REMANDED with instructions.
6
This result is hard to square with this court’s stated emphasis, e.g. in Phillips and
Davis, on considering whether a tortfeasor established a benefit plan in an effort to indemnify
itself against potential legal liability. For instance, if Cenac had established a health
insurance plan that covered both work-related and non-work-related injuries and contained
specific language requiring that benefits received under the plan be set-off against a judgment
adverse to the tortfeasor, then a court might find that the plan was intended to indemnify the
tortfeasor from liability. See e.g., Allen, 639 F. Supp. at 1549. Here, however, Cenac in effect
attempted to “indemnify” itself against double liability by purchasing coverage limited to non-
work-related injuries so that an employee would not be able to recover from it both plan
benefits and work related tort damages. Even though both Cenac’s plan and the hypothetical
plan described above were established in an effort to avoid double liability, the former is
considered a collateral source, but the latter is not. These conflicting results make little sense.
15