               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this opinion should not be published and is not precedent except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
