Huss v. King Company

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Huss v. The King Company, et al. No. 02-1010 ELECTRONIC CITATION: 2003 FED App. 0272P (6th Cir.) File Name: 03a0272p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Joseph Kelly Carley, JAQUES ADMIRALTY FOR THE SIXTH CIRCUIT LAW FIRM, Detroit, Michigan, for Appellant. Robert D. _________________ Nienhuis, GOLDSTEIN & PRICE, St. Louis, Missouri, Paul D. Galea, FOSTER, MEADOWS & BALLARD, Detroit, MICHAEL B. HUSS , X Michigan, for Appellees. ON BRIEF: Joseph Kelly Carley, Plaintiff-Appellant, - Judith A. Schornack-Smith, JAQUES ADMIRALTY LAW - FIRM, Detroit, Michigan, for Appellant. Robert D. Nienhuis, - No. 02-1010 GOLDSTEIN & PRICE, St. Louis, Missouri, Paul D. Galea, v. - FOSTER, MEADOWS & BALLARD, Detroit, Michigan, for > Appellees. , THE KING COMPANY , INC.; - LAKE MICHIGAN _________________ - CONTRACT ORS , INC., - OPINION Defendants-Appellees. - _________________ - N WILLIAM W SCHWARZER, Senior District Judge. This Appeal from the United States District Court is an appeal from an adverse judgment after trial in an action for the Western District of Michigan at Grand Rapids. brought by Michael Huss for injuries sustained while Nos. 98-00366; 00-00043—Wendell A. Miles, employed by defendant King Company, Inc. (King). On District Judge. May 3, 1995, Huss, together with three other King employees, attempted to retrieve a work boat from the yard of Argued: June 11, 2003 codefendant Lake Michigan Contractors (LMC). As the boat was being hoisted by a crane off its cradle, Huss crawled Decided and Filed: August 5, 2003 underneath the boat to remove a scrap of rope from the propeller shaft. While he was attempting to remove the rope, Before: MOORE and GIBBONS, Circuit Judges; one of the lines securing the boat to the crane came loose, SCHWARZER, Senior District Judge.* causing it to fall on Huss. He sustained a compression fracture of the fifth lumbar vertebra and a posterior left rib fracture. After spending one night in the hospital, he was released to home. He returned to work approximately one month after the accident, performing duties that did not require heavy lifting, until August 1997. At that time, he * ceased reporting to work, and in December 1997, he The Honorable William W Schwarzer, Senior United States District terminated his employment with King. In May 1998, Huss Judge for the Northern District of California, sitting by designation.

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filed this action alleging claims against King under the Jones stated the amount of maintenance and cure due to be a Act, 46 U.S.C.§ 688 et seq., and for unseaworthiness, and disputed issue. against LMC for unseaworthiness and negligence. In January 2000, he filed another action against King alone to recover In July and August 2001 the case went to trial before the maintenance and cure. The two actions were consolidated. district judge. At the conclusion of the trial, the court Following a bench trial, the court awarded Huss damages of delivered oral findings stating, among other things, that new $30,234.73; after reducing this amount by sixty percent for evidence had come to light leading the court to determine that Huss’s comparative fault and crediting King with maximum cure had been reached prior to January 1998.2 In overpayment of maintenance and cure, it entered a take- subsequent written findings, the court stated that the prior nothing judgment. This appeal followed. The district court entry of summary judgment for Huss on the issue of had jurisdiction under 28 U.S.C. § 1333, and we have maintenance and cure was “essentially meaningless if by the jurisdiction under 28 U.S.C.§ 1291. Because the rulings of time of the ruling King had already paid all of the the district court were not clearly erroneous and did not abuse maintenance and cure to which [Huss] was entitled.” It held its discretion, we affirm the judgment. that because Huss reached maximum cure sometime between September and December 1997, King properly discontinued DISCUSSION maintenance and cure payments as of January 1998. King had, however, as the court noted, made additional payments I. THE CLAIM AGAINST KING following the court’s earlier ruling for the years 1998, 1999, and 2000. The court found that King was entitled to credit for A. The Maintenance and Cure Issue those sums toward any judgment on the unseaworthiness and Jones Act claims.3 Huss then filed a post-trial brief, much of In July 2000, Huss moved for partial summary judgment on it devoted to the maintenance and cure issue. In November his claim for maintenance and cure.1 The court found that 2000 the court issued its Supplemental Order Regarding King had discontinued payment of maintenance and cure on Maintenance and Cure addressing the evidence adduced at January 1, 1998. It held that because Huss had presented evidence that he had not reached maximum cure and King had failed to raise a triable issue, Huss was entitled to 2 summary judgment on liability, leaving the amount due, if The court found, inter alia, that Huss provided false information during a med ical history leading the court to question his cred ibility. any, to be determined. A pretrial order entered in May 2001 Huss vigoro usly challenges the court’s credibility determination but offers nothing compelling a finding of clear error. See Peveler v. United States, 269 F.3d 693 , 702 (6th C ir. 200 1) (“W e are genera lly reluctant to set 1 aside credibility determinations made by the trier of fact, who has had the A seaman who is injured while in service of a vessel is en titled to maintenance and cure at the expe nse of the vessel owner. Maintenance opportunity to view the witness on the stand and assess his demeanor.”). is a subsistence allowance designed to provide the seam an with On the merits, the court also found that medical opinion that Huss would compensation sufficient to pay for his food and lodging until the time of have benefitted from a second surgery was lacking, partially based on the maximum cure. C ure is the e mplo yer’s obligation to pay for medical fact that the physician who performed Huss’s surgery, Dr. Reynaldo expenses for an injured seaman. The obligation to pay maintenance and Castillo, expressed the opinion in November 1997 that pain may be cure continues until the seaman is cured or, if there is permanent something with which he will have to live. impa irment, until he reaches the point of m aximum me dical re covery. 3 See Thomas J. Schoenbaum, Admiralty and Maritime Law 369, 372, 375 The court did not require Huss to repay any amounts he had (3d ed. 2001 ). received.

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trial and not previously presented that led the court to find the judge subsequently changes the initial ruling and that maximum cure had been reached before January 1998, as broadens the scope of the trial, the judge must inform the well as the arguments on the issue advanced by Huss. parties and give them an opportunity to present evidence relating to the newly revived issue. Failure to do so Huss’s principal argument on appeal is that the court erred might in some circumstances cause substantial prejudice. in revoking its partial summary judgment determining that maintenance and cure had not been reached by September 875 F.2d at 386. 2000. Rule 56(d) authorizes the entry of partial summary judgment. Fed. R. Civ. P. 56(d). It states that if summary Here, the district judge informed Huss of the change of his judgment is rendered on less than an entire case and a trial on initial ruling and gave him an opportunity in post-trial the remaining claims is necessary, the court briefing to argue that he was entitled to continued payment of maintenance and cure after January 1998. Although the shall if practicable ascertain what material facts exist court’s change of its ruling did not occur until after trial, it without substantial controversy and what material facts was based on the damage evidence relevant to maintenance are actually and in good faith controverted. It shall and cure presented at trial. Counsel on brief made no attempt thereupon make an order specifying the facts that appear to show that the post-trial change of the ruling prejudiced his without substantial controversy, including the extent to trial presentation. At oral argument he conceded that all of which the amount of damages or other relief is not in the evidence relevant to maintenance and cure had been controversy, and directing such further proceedings in the presented in support of Huss’s damage claim and that he action as are just. Upon the trial of the action the facts so knew of no questions he would have asked witnesses had he specified shall be deemed established, and the trial shall known of the court’s revised ruling. We conclude that the be conducted accordingly. district court did not commit error and that its action did not prejudice Huss. We agree with Judge Newman’s analysis of Rule 56(d) in Leddy v. Standard Dry Wall, Inc., 875 F.2d 383 (2d Cir. B. Allocation of Comparative Negligence 1989), in which he stated: Huss contends that the district court’s allocation to him of Once a district judge issues a partial summary judgment sixty percent comparative negligence was clearly erroneous. order removing certain claims from a case, the parties Our review of allocation of fault is for clear error. Phillips have a right to rely on the ruling by forbearing from Petroleum Co. v. Stokes Oil Co., 863 F.2d 1250, 1255 (6th introducing any evidence or cross-examining witnesses Cir. 1988). The court’s determination was based on extensive in regard to those claims. If, as allowed by Rule 54(b),4 findings, including that Huss and his coworkers had a duty to ensure the operation was performed safely, that Huss crawled under the boat without having been instructed to do so and 4 Rule 54(b) provid es that in the absence o f a direction to enter later admitted that it was stupid, and that he remained under judgment on one of several claims presented in an action, “any order . . . the boat when his supervisor crawled out from underneath the which adjudic ates fewer than all the claims . . . shall not terminate the boat. Huss argues a different interpretation of the essentially action as to any of the claim s . . . and the order . . . is subject to revision undisputed facts but he fails to show that the court’s finding at any time before the entry of judgment adjudica ting all the claims.” was clearly erroneous. Fed. R. Civ. P. 54(b).

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C. Damages currently suffers from no serious back disorder and whose physical limitations are self-imposed rather than medically As noted above, the district court gave King credit against required. He further found that the evidence clearly showed the damage award for the sums previously paid for that Huss was able to return to work for over two years maintenance and cure to which, under the court’s decision, following the accident with his earning capacity Huss was not entitled. Huss does not contend that the court undiminished. While different interpretations of the evidence lacked the authority to do this. Instead he argues that the may be reached, Huss has not shown the court’s findings to claim for credit was an affirmative defense which was not be clearly erroneous. See Fed. R. Civ. P. 52(a); Meyers v. pleaded as required by Rule 8(c), or raised in the pretrial City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994) order, and was therefore waived. Fed. R. Civ. P. 8(c). We (stating that damages present a question of fact subject to will assume for present purposes that the credit claim was an review under the clearly erroneous standard). affirmative defense. “[T]he purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a II. THE CLAIM AGAINST LMC chance to rebut it.” Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993) (citing Blonder-Tongue The district court granted summary judgment for LMC on Lab., Inc. v. University of Ill. Found., 402 U.S. 313, 350 all claims. It dismissed the Jones Act claim because it was (1971)). If a plaintiff receives notice of an affirmative undisputed that Huss was not an employee of LMC. It defense by some means other than pleadings, the defendant’s dismissed the unseaworthiness and negligence claims, finding failure to comply with Rule 8(c) does not cause the plaintiff that it was undisputed that King took the boat under a any prejudice. Id. Huss has not shown how he was bareboat charter and that there was no evidence from which prejudiced by King’s failure to plead the claim as an a trier of fact could find a defective condition pre-existing the affirmative defense. The question whether Huss was entitled charter. Our review of summary judgment is de novo. Sargi to funds paid after January 1998 was directly implicated in v. Kent City Bd. of Educ., 70 F.3d 907, 910 (6th Cir. 1995). King’s opposition to Huss’s claim for maintenance and cure after January 1998, which was litigated. Moreover, Huss has Huss challenges the unseaworthiness ruling, arguing that pointed to no evidence or argument he would have offered in the owner of a vessel is under an absolute duty to furnish a opposition to the credit claim had it been pleaded. Id.5 seaworthy vessel. However, the owner of a vessel under a demise (or bareboat) charter is liable only for Huss further contends that the damage awards were clearly unseaworthiness that pre-existed the charter. Kerr-McGee erroneous in their insufficiency. He argues that the court Corp. v. Law, 479 F.2d 61, 63 (4th Cir. 1973). “[W]hen the ignored evidence of pain and suffering and of egregious pain owner of a vessel enters into a demise charter, he surrenders precluding past and future work. The court found Huss to be all possession and control of the vessel to the charterer. Since an outwardly healthy person, in no obvious distress, who he no longer has the right to control the use of the vessel, he is no longer charged with the duties and liabilities that arise out of its ownership.” Id.; see also, Baker v. Raymond Int’l, Inc., 656 F.2d 173, 181 (5th Cir. 1981); Schoenbaum at 348- 5 Huss contends that the district court abused its discretion in denying 49. Because the court found the evidence insufficient to prejudgm ent interest. Because we up hold the district court’s d ecision to support a finding that the boat was caused to fall by a failure credit King with the overpayments of maintenance and cure, resulting in a take-nothing judgment, the prejudgment interest claim is mo ot.

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of the existing lines on the boat, this claim was properly dismissed. Huss also challenges the dismissal of the negligence claim, arguing that the failure of the rigging raised a genuine issue as to whether LMC turned over a boat in a dangerous condition. But the court found that the evidence did not support a finding that the ropes or lines furnished with the boat rendered it dangerous and that it was the manner in which King’s employees performed their work that created the dangerous situation. This claim was therefore properly dismissed. CONCLUSION We have carefully considered all of Huss’s contentions, including those not specifically discussed in this opinion, and find them to be without merit. We therefore AFFIRM the judgment of the district court.