     Case: 09-30622     Document: 00511182257          Page: 1    Date Filed: 07/22/2010




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

                                                  FILED
                                                                            July 22, 2010

                                     No. 09-30622                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



BRUCE WAYNE EVERETT

                                                   Plaintiff-Appellant, Cross-Appellee
v.

ATLANTIC SOUNDING COMPANY, INC.; WEEKS MARINE, INC.

                                                   Defendants-Appellees, Cross-
                                                   Appellants




                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:07-cv-05302


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Plaintiff Bruce Everett and defendants Weeks Marine, Inc. (“Weeks”) and
Atlantic Sounding Co., Inc. (“Atlantic”) appeal from the district court’s award of
damages to Everett for injuries suffered onboard the E.W. ELLEFSEN. We
affirm the district court in part, reverse in part, and remand this case for
correction of the judgment entered for Everett.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-30622

      In April 2007, Atlantic hired Everett to work as an oiler onboard the E.W.
ELLEFSEN, a dredge vessel owned by Weeks, Atlantic’s parent company. On
August 5, 2007, Everett slipped while moving a hose onboard the vessel and
injured his tailbone and lower back. Less than a month later, Everett filed suit
against Atlantic and Weeks, claiming that defendants’ negligence and the
unseaworthiness of the E.W. ELLEFSEN caused his injury. He sought damages
under general maritime law and the Jones Act, see 46 U.S.C. § 30104 (2006), and
payment of maintenance and cure. Generally, after an accident, a seaman’s
employer must pay maintenance and cure, or in other words, “food and lodging
of the kind and quality [the injured seaman] would have received aboard the
ship” and reimbursement for “medical expenses actually incurred.” Boudreaux
v. United States, 280 F.3d 461, 468 (5th Cir. 2002). Everett also sought damages
for lost wages, loss of future earning capacity, and payment of attorney’s fees for
defendants’ failure to pay for any maintenance and cure other than his visit to
the emergency room immediately following the accident. After his emergency
room visit, Everett received additional medical treatment for his back injury,
and he alleges that the injury prevents him from returning to heavy labor
similar to that he performed before the accident.
      After a bench trial, the district court found that Everett’s injury resulted
from defendants’ negligence and the consequent unseaworthiness of the E.W.
ELLEFSEN, but that 20% of the fault for the accident could be attributed to
Everett’s own negligence. It therefore awarded Everett $50,000 for past pain
and suffering, but reduced the award by 20% to $40,000. It also awarded
Everett maintenance and cure. An employer’s obligation to pay maintenance
and cure terminates when an injured seamen attains maximum cure, i.e.,
“‘where it is probable that further treatment will result in no betterment in the
claimant’s condition.’” Id. at 468 (quoting Rashidi v. Am. President Lines, 96
F.3d 124, 128 (5th Cir.1996)). The district court found that Everett attained

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                                       No. 09-30622

maximum cure on November 7, 2007, when he began performing general
carpentry work.       As such, the district court awarded Everett maintenance
payments of $20 per day from the date of his accident until November 7 and a
cure payment covering the cost of his medical expenses up to November 7. The
court docked Everett’s cure award for his contributory negligence, reducing it
from $6,796.75 to $5,437.40, but did not similarly limit Everett’s maintenance
award.1
       Everett now appeals the district court’s determination that he reached
maximum cure on November 7, 2007, the court’s decision not to award
reimbursement for medical expenses incurred past that date, its failure to award
damages for lost wages and his future loss of earning capacity, and its limitation
of his cure award for contributory negligence. Conversely, Weeks and Atlantic
appeal the district court’s award of any maintenance and cure at all, as they
argue that Everett’s failure to disclose his status as HIV positive should bar any
award.     After reviewing the evidence, we find that it would waste judicial
resources to write a lengthy opinion, as our opinion would merely restate the
analysis already provided in the district court’s excellent opinion.
       Accordingly, we affirm the district court’s judgment, with one exception.
We find that the court erred in reducing Everett’s cure award for his
contributory negligence, since “a seaman’s negligence does not negate a
shipowner’s duty to pay maintenance and cure.” Bertram v. Freeport McMoran,
Inc., 35 F.3d 1008, 1013 (5th Cir. 1994). It appears that the district court’s error
was inadvertent, as the court itself acknowledged that an employer’s obligation


       1
          In its opinion, the district court also reduced Everett’s maintenance award to account
for his contributory negligence. However, in the judgment entered by the district court, the
court did not reduce the maintenance award for contributory negligence. As will be explained
below, maintenance awards generally may not be reduced for contributory negligence. The
district court’s judgment properly corrected the erroneous limitation of Everett’s maintenance
award in its opinion, but did not similarly correct the opinion’s limitation of Everett’s cure
award.

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                                   No. 09-30622

to provide maintenance and cure arises independently “of any other source of
recovery for the seaman,” id., and that therefore a seaman or employer’s
negligence is not at issue in such circumstances. See Brister v. AWI, Inc., 946
F.2d 350, 360 (5th Cir. 1991). That said, we have previously recognized that “a
seaman clearly can receive only one recovery for his medical expenses.” Id. at
361.   As a result, a seamen is not entitled to maintenance and cure that
duplicates other awarded damages. However, in this case, it does not appear
that the district court’s award of $40,000 in damages covered any of Everett’s
medical expenses, which would justify limiting his cure award. The district
court characterized its award of $40,000 as remedying Everett’s past pain and
suffering, while it stated that “[w]ith respect to the Plaintiff’s benefits for cure,
. . . the Court finds that an award of $6,796.75 for past medical expenses is
appropriate.” Consequently, the district court’s limitation of its cure award to
$5,437.40 was erroneous; instead, Everett is entitled to cure award of $6,796.75,
without reduction for his contributory negligence.
       Consequently, the district court is AFFIRMED in part and REVERSED
in part, and this case is REMANDED for correction of the judgment entered in
favor of Everett.




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