     Case: 10-30357 Document: 00511302603 Page: 1 Date Filed: 11/23/2010




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

                                                 FILED
                                                                         November 23, 2010

                                     No. 10-30357                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ATLANTIC SOUNDING COMPANY, INCORPORATED,

                                                   Plaintiff-Appellee
v.

TIMOTHY F. PETREY,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:06-CV-09688


Before JOLLY, GARZA, and STEWART, Circuit Judges..
PER CURIAM:*
       Defendant-Appellant Timothy F. Petrey (“Petrey”) appeals the district
court’s declaratory judgment in favor of Plaintiff-Appellee Atlantic Sounding
Company, Inc. (“Atlantic”). Petrey argues that the district court erred when it
denied him recovery of maintenance and cure benefits, and punitive damages
against Atlantic, his former employer. For the reasons discussed herein, we
AFFIRM the district court’s judgment.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30357

       Prior to his injury, Petrey worked as crew member on the tug, the M/V
Thomas, which Atlantic owned. In 1996, prior to his employment with Atlantic,
Petrey underwent hip replacement surgery on his right hip. Petrey failed to
disclose this fact to Atlantic during a required pre-employment medical
examination. Nor did Petrey include this information on medical history forms
that he completed as part of the hiring process. He also failed to tell Atlantic
that he was on prescription pain medication when he underwent his physical
and worked for the firm.
       In 2006, Petrey’s hip displaced while he was working as part of the crew
on the M/V Thomas. Atlantic sought a declaratory judgment from the district
court under Rule 9(h) of the Federal Rules of Civil Procedure and 28 U.S.C. §
2201.1 Before the district court, Atlantic argued that the company was not liable
for Petrey’s maintenance and cure benefits because Petrey had concealed his hip
replacement surgery and the firm would not have hired Petrey if it had known
about his medical history.
       The district court conducted a bench trial, and the parties submitted post-
trial memoranda. The lower court reviewed the evidence and concluded that
under Jauch v. Nautical Services, Inc., 470 F.3d 207 (5th Cir. 2006), Petrey was
ineligible for maintenance and cure benefits. The court concluded that Petrey
had intentionally concealed his hip surgery and use of prescription pain
medication. The lower court concluded that these concealed or misrepresented
facts were material to the company’s decision to hire Petrey. The court also
concluded that there was a direct connection between the alleged workplace
injury and the concealed medical facts.



       1
        Petrey filed a negligence counterclaim against Atlantic under the Jones Act, 46 U.S.C.
§ 30106. After the bench trial, the district court concluded that Petrey was not entitled to
recover for this claim because his hip dislocation was not caused by Atlantic’s negligence.
Petrey did not appeal this aspect of the district court’s decision.

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                                  No. 10-30357

      When we consider a district court’s decision to deny or award maintenance
and cure payments, we review the lower court’s finding of facts for clear error
and its conclusions of law de novo. Jauch, 470 F.3d at 212. We will reverse a
ruling of fact for clear error only when we have a “definite and firm conviction
that a mistake has been committed.” Water Craft Management LLC v. Mercury
Marine, 457 F.3d 484, 488 (5th Cir. 2006) (citations omitted). With the clearly
erroneous standard, “[w]e cannot second guess the district court’s decision to
believe one witness’ testimony over another’s or to discount a witness’
testimony.” Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir.
2000).
      “Maintenance and cure is a contractual form of compensation given by
general maritime law to a seaman who falls ill while in the service of his vessel.”
McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 548 (5th Cir. 1968).
“The vessel owner’s obligation to provide this compensation does not depend on
any determination of fault, but rather is treated as an implied term of any
contract for maritime employment.” Jauch, 470 F.3d at 212. This is true even
if the seaman’s injury stems from a pre-existing illness or condition, unless, the
seaman knowingly concealed this condition from his employer when he was
hired. Id.
      The McCorpen defense exists when an employer subjects a seaman to a
medical examination as part of the hiring process and the vessel owner can
prove that the seaman: (1) intentionally misrepresented or concealed pertinent
medical facts; (2) the non-disclosed facts were material to the company’s decision
to hire the claimant; and (3) there was a causal link between the concealed pre-
existing injury and the employment injury. McCorpen, 396 F.2d at 549; Jauch,
470 F.3d at 212; see also Johnson v. Cenac Towing, Inc., 544 F.3d 296, 301 (5th
Cir. 2008).



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                                    No. 10-30357

      Petrey argues that the district court incorrectly applied the McCorpen
defense. Specifically, Petrey argues that under Juach, we established a fourth
element to the McCorpen defense when we stated, that “[i]f a vessel owner would
have employed the seaman even had the requested disclosure been made,
concealment will not bar the seaman’s recovery of maintenance and cure.”
Jauch, 470 F.3d at 212. Petrey contends that the district court erred because it
failed to address this fourth element in its decision.
      Petrey’s argument is incorrect; the McCorpen defense has only three
elements. Johnson, 544 F.3d at 301 (“In this case, the district court found that
all three elements of the McCorpen defense were satisfied . . . .”); Brown v.
Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005). The quote
from Jauch on which Petrey’s argument rests is not a fourth element of the
defense. Rather, this quote relates to the McCorpen defense’s second prong,
which considers whether the non-disclosed facts were material to the company’s
decision to hire the seaman. Ruiz v. Plimsoll Marine, Inc., 782 F.Supp. 315, 317
(M.D. La. 1992); Brown v. Cenac Towing, Co., No. 09-105, 2010 WL 2559079, at
*5 (E.D. La. June 24, 2010).
      Petrey also contends that the district court erred by concluding that he
had concealed his injury from his employer and that the concealed facts were
material to Atlantic’s decision to hire him. Petrey asserts that the company
knew of his injury because he had informed two co-workers about his injury and
he disclosed his hip replacement and medication usage during a Coast Guard
physical. Petrey underwent the physical when he petitioned the Coast Guard
for an upgrade in his ordinary seaman license. The physical occurred about a
year after Atlantic hired Petrey.
      Petrey’s contention relates to the district court’s factual findings, which we
review for clear error. Testimony from the bench trial shows that managers in
Atlantic’s risk management and operations departments, units involved with

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Petrey’s hiring and continued employment at Atlantic, did not know about his
previous hip surgery until after his 2006 accident. And, evidence in the record
shows that managers who had the ability to prevent Petrey’s hiring or to
terminate him were unaware of his disclosures to co-workers or his Coast Guard
physical. In fact, trial testimony demonstrates that Atlantic’s risk management
department had no knowledge of Petrey’s Coast Guard physical until the firm
completed discovery in the present litigation. Thus, based on the record, the
district court did not err by finding that Petrey had misrepresented or concealed
his hip replacement from his employer.
      The district court did not err by determining that this misrepresentation
was material to Atlantic’s decision to hire Petrey. At trial, Atlantic’s physician
testified that if he had known of Petrey’s hip replacement, he would not have
cleared Petrey for duty as a deckhand. And, the record clearly demonstrates
that Atlantic’s risk management representative, a manager who could delay or
prevent Petrey’s hiring, learned of Petrey’s hip surgery after his 2006 accident.
And, this manager did not know of Petrey’s post-hiring disclosures to co-workers
or his subsequent Coast Guard physical until after Petrey’s accident.
      Petrey’s brief does not contain substantive arguments about the district
court’s findings and conclusions as to the connection between his pre-existing
injury and the workplace injury. We hold that Petrey has abandoned this issue
because he failed to adequately brief it. F ED. R. A PP. P. 28(a)(9)(A); Dardar v.
Lafourche Realty Co., Inc., 985 F.2d 824, 831 (5th Cir. 1993).
      The district court did not err by concluding that the evidence proved
Petrey had intentionally concealed his hip replacement from Atlantic.           In
addition, the district court did not err in concluding that Atlantic would not have
hired Petrey as a deckhand if the company had known during the hiring process
about Petrey’s hip replacement and prescription medication consumption. And,
the district court correctly determined that Petrey’s hip replacement was

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                                No. 10-30357

connected to his workplace injury. Thus, the trial court correctly determined
that Atlantic had established a McCorpen defense that precluded Petrey’s
collection of maintenance and cure benefits.
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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