     Case: 18-30348   Document: 00514815449    Page: 1   Date Filed: 01/30/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                               FILED
                                                          January 30, 2019
                                No. 18-30348
                                                           Lyle W. Cayce
                                                                Clerk
In re: In the Matter of the Complaint of 4-K MARINE, L.L.C., as owner of the
M/V Miss Elizabeth, petitioning for exoneration from, or limitation of,
liability and CENTRAL BOAT RENTALS, INCORPORATED, as operator of
the M/V Miss Elizabeth, petitioning for exoneration from, or limitation of,
liability

4-K MARINE, L.L.C., as owner of the M/V Miss Elizabeth, petitioning for
exoneration from, or limitation of, liability; CENTRAL BOAT RENTALS,
INCORPORATED, as operator of the M/V Miss Elizabeth, petitioning for
exoneration from, or limitation of, liability,

             Petitioners - Appellants

v.

ENTERPRISE MARINE SERVICES, L.L.C.,

             Claimant - Appellee




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      This is a maritime case involving an allision. The issue is whether the
owner of the stationary, “innocent” vessel must be reimbursed for the medical
expenses of an employee who fraudulently claimed his preexisting injuries had
resulted from the allision. The district court said “no.” We AFFIRM.
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               FACTUAL AND PROCEDURAL BACKGROUND
      In June 2015, the M/V TOMMY, a tug owned and operated by the
claimant Enterprise Marine Services, LLC, was pushing a flotilla of barges on
the lower Mississippi River. Its lead barge made contact with the M/V MISS
ELIZABETH, a tug that along with its barges was essentially stationary and
near the river’s bank. That tug was owned by 4-K Marine and operated by
Central Boat Rentals, Inc. (“CBR”). On board the M/V MISS ELIZABETH
were the wheelman Prince McKinley and a deck hand named Justin Price.
Both alleged they were injured in the allision.
      CBR and 4-K Marine jointly filed a petition under the Shipowner’s
Limitation of Liability Act in the U.S. District Court for the Eastern District of
Louisiana. See 46 U.S.C. § 30501, et seq. We will refer to the two petitioners
as CBR. As required by Rule F of the Supplemental Rules for Admiralty or
Maritime Claims, the district court issued a notice that all claimants respond.
McKinley, Price, and Enterprise Marine all answered. A flurry of claims, cross-
claims, and counter-claims followed with each of the crewmen, owners, and
operators attempting to recover from one or more of the others.
      Only one of those claims is at issue in this appeal, namely, CBR’s
counter-claim that Enterprise Marine reimburse it for amounts it paid to
McKinley for medical expenses under its obligations as his Jones Act employer.
CBR paid, and Enterprise Marine reimbursed, $23,485 in maintenance and
$5,345.84 in cure to McKinley. CBR also agreed with a surgeon and a hospital
to pay for a back surgery on behalf of McKinley, but Enterprise Marine refused
to reimburse those expenses on the basis that McKinley’s back condition was
not the result of the allision.
      After a bench trial, the district court found that McKinley’s knee
problems were caused by the accident. His back problems, though, predated
the accident and were unaffected by the allision. The court also found that
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McKinley fraudulently withheld “material issues about pre-existing medical
conditions and medications both before and after the incident.” Based on these
findings, the district court held that CBR had no obligation to pay for
McKinley’s back surgery, and Enterprise Marine had no obligation to
reimburse CBR.
       Enterprise Marine sought the return of the amounts it had already
reimbursed for maintenance and cure that were not related to McKinley’s knee
problem. The district court refused to grant that relief on the grounds that
each party was a sophisticated maritime company, knowledgeable about its
obligations and its defenses. Enterprise Marine’s failure to make a reasonable
investigation earlier in the process meant it would not now be allowed to
recoup unnecessary reimbursements to CBR. CBR timely appealed, and there
is no cross-appeal.


                                      DISCUSSION
       In this appeal from a judgment entered after a bench trial, we review the
district court’s conclusions of law de novo and its factual findings for clear
error. Lewis v. Ascension Par. Sch. Bd., 806 F.3d 344, 353 (5th Cir. 2015). CBR
argues that maritime principles as well as a contract between the parties
compel Enterprise Marine to reimburse McKinley’s back surgery regardless of
the employee’s fraud. 1



       1  CBR also briefed an equitable estoppel argument on appeal but did not raise the
issue in the district court until a post-trial memorandum. The district court ignored the issue
in its opinion and judgment. “If an argument is not raised to such a degree that the district
court has an opportunity to rule on it, we will not address it on appeal.” F.D.I.C. v. Mijalis,
15 F.3d 1314, 1327 (5th Cir. 1994). Regardless, CBR’s argument fails on the merits. CBR
had to demonstrate “justifiable reliance” on Enterprise Marine’s “conduct or word.” Johnson
v. Seacor Marine Corp., 404 F.3d 871, 878 (5th Cir. 2005). CBR admits, however, that
Enterprise Marine “balked at paying for the surgery” in the “Fall of 2016” and that the
surgery did not occur until February 2017. CBR could not have justifiably relied on
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I.    Maritime principles concerning reimbursement
      If a seaman “becomes ill or suffers an injury while in the service of a
vessel,” regardless of which party is to blame, his Jones Act employer owes him
“an absolute, non-delegable duty” to pay “a ‘per diem living allowance for food
and lodging,’” which is called “maintenance,” as well as “payment for medical,
therapeutic, and hospital expenses,” which is called “cure.”                Bertram v.
Freeport McMoran, Inc., 35 F.3d 1008, 1011–13 (5th Cir. 1994) (citations
omitted); see also Armstrong v. Trico Marine, Inc., 923 F.2d 55, 58 n.2 (5th Cir.
1991). If a third-party “partially or wholly caused the seaman’s injury,” the
employer can recover the maintenance and cure payments from it. Bertram,
35 F.3d at 1013.
      Enterprise Marine withheld reimbursement of the costs of McKinley’s
back surgery after reviewing his medical history and concluding his injury was
not caused by the allision. McKinley’s treating physician, though, believed his
back injury was due to the incident.
      A seaman’s entitlement to maintenance and cure applies only to injuries
“suffered [or] . . . aggravated or [that] become manifest while he [is] ‘in the
service of the vessel.’” 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME
LAW § 6:30 (6th ed. 2018). The district court found the allision did not cause or
aggravate McKinley’s back injury. CBR does not dispute this. A third-party
must reimburse only where its negligence “caused or contributed to the need
for maintenance and cure.”         Bertram, 35 F.3d at 1014 (emphasis added)
(citation omitted). Because McKinley’s back condition did not result from the
allision, Enterprise Marine did nothing that “caused or contributed to [a] need


Enterprise Marine’s other representations it alleges communicated a willingness to pay for
the back surgery.



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                                 No. 18-30348
for maintenance and cure” for that particular medical problem. Id. That
means it did not owe reimbursement to CBR for McKinley’s back surgery.
      We acknowledge that CBR identifies practical problems it faced in
deciding whether to cover its employee’s medical expenses. Decisions about
maintenance and cure had to be made early, well before this bench trial. CBR
was presented with what initially appeared to be a plausible claim for cure. A
Jones Act employer who “unreasonably rejects [a maintenance and cure] claim”
becomes liable for compensatory damages, and employers who have “not only
been unreasonable but ha[ve] been more egregiously at fault,” are liable for
punitive damages and attorney’s fees. Morales v. Garijak, Inc., 829 F.2d 1355,
1358 (5th Cir. 1987); see also Atlantic Sounding Co., Inc. v. Townsend, 557 U.S.
404, 424 (2009).
      Practical problems notwithstanding, maritime law makes Enterprise
Marine liable only for such injuries as it causes. CBR did have options. “Upon
receiving a claim for maintenance and cure, the [employer] need not
immediately commence payments; he is entitled to investigate and require
corroboration of the claim.” Morales, 829 F.2d at 1358. The employer becomes
liable for compensatory damages only if it “unreasonably rejects the claim”
after an investigation. Id. (emphasis added). Punitive damages and attorney’s
fees are assessed only for behavior that is egregious. Accordingly, CBR could
have refused to pay for McKinley’s back surgery so long as it had a reasonable
factual or legal basis. We do not minimize the uncertainties of such decisions,
but the law at least provides a means to deal with them. CBR also had the
right to deny payment of maintenance and cure where the employee
“intentionally misrepresent[ed] or conceal[ed] material medical facts, the
disclosure of which [was] plainly desired” by the employer. McCorpen v. Cent.
Gulf S.S. Corp., 396 F.2d 547, 549 (5th Cir. 1968).


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       This holding does not, as CBR asserts, compromise the law’s concern for
injured seamen nor does it “place a burden on an innocent employer to conduct
an investigation and possibly assert a . . . defense as a condition to later
receiving reimbursement from a third party.”          The seaman’s right to
maintenance and cure is balanced with his employer’s interests by allowing
the employer to investigate and reasonably withhold payment. Morales, 829
F.2d at 1358. There is no reason the balance should be different when the
mechanisms of maintenance and cure make a third-party tortfeasor the
ultimate entity responsible for any required payment.         Indeed, in those
circumstances these rules arguably are all the more justified.


II.    Contractual obligations to reimburse
       CBR also argues that it is entitled to be reimbursed because of an
agreement between the parties. The existence of a maritime contract and its
terms are questions of fact we review for clear error. See One Beacon Ins. Co.
v. Crowley Marine Servs., Inc., 648 F.3d 258, 262–64 (5th Cir. 2011). On the
other hand, “interpretation of [those] terms is a matter of law that we review
de novo.” Id. at 262.
       Enterprise Marine concedes there was an agreement regarding
reimbursement for maintenance and cure.         The agreement arose from a
conference in April 2016 among counsel for each party and a claims adjuster.
At the time of the meeting, though, doubts about the cause of McKinley’s back
problems were at most inchoate. It is not clear when Enterprise Marine began
to question the veracity of McKinley’s back complaints, but an independent
medical examination in July 2016 concluded the injuries were preexisting.
       No written contract fully embodies these parties’ agreement, but both
sides reference an email CBR’s counsel sent to Enterprise Marine. CBR says
the email “outline[s] the agreement reached between the parties” while
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Enterprise Marine characterizes it as “a memorandum . . . setting out the steps
which would be taken for submitting reimbursement requests to Enterprise
[Marine]” through a third-party claims adjuster. The email does not address
either party’s obligations if any medical expenses were found to be for injuries
unrelated to the allision. The operative language in the email simply states:
      As discussed in the meeting [between CBR and Enterprise
      Marine], maintenance and cure checks will be issued directly from
      [CBR] . . . every two weeks. [The adjuster of McKinley’s claims]
      will request reimbursement from Enterprise [Marine] . . . every
      sixty days.
      [The adjuster] will have [McKinley] send all medical invoicing
      directly to [the adjuster] . . . . Medical invoicing of [McKinley] will
      be audited by [the adjuster] and forwarded to [CBR] for payment.
      [The adjuster] will request reimbursement for medicals from
      Enterprise [Marine] . . . . [The adjuster] will also request
      reimbursement from Enterprise [Marine] for [CBR’s] past
      maintenance and cure payments.
      CBR claims that contractual terms not mentioned in the email were
established at the meeting, but the evidence contains few details. There was
testimony that the email “was a recitation of the meeting.” The claims adjuster
who was at the meeting testified that there were no “limitations given to [him]
about not paying for certain items.”        The adjuster stated specifically that
Enterprise Marine’s attorney did not mention limits on reimbursement.
Enterprise Marine quotes the adjuster’s testimony that the purpose of the
email “was to summarize the process of how maintenance and cure would be
issued . . . and reimbursed by Enterprise” Marine. The district court made
note of the email and the testimony about the meeting, but it did not make
findings about the agreement’s details.
      Even with the adjuster’s testimony that the agreement contained no
“limitations” about payments, we see no concession at that time by Enterprise
Marine that it would make these payments even if it were later determined

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that the medical expenses were unrelated to injuries arising from the allision.
The district court gave short shrift to the agreement, which is indicative of a
finding that the agreement simply did not cover a situation in which it later
became clear that the seaman’s claims were fraudulent. We see no error.
      AFFIRMED.




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