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Aetna was recently hit with a $25.6M bad faith verdict for denial of an insured's cancer treatment in Oklahoma. When Orrana Cunningham was diagnosed with stage IV nasopharyngeal cancer in November, 2014, Aetna fought tooth and nail against her claims and those of her husband. The Cunnighams paid for appropriate treatment on their own and, after Orrana's untimely death, Ron pursued their claims against Aetna. The bottom line is that Aetna lost a $25.6 million bad faith jury verdict.
JONES ACT - TABLE OF CONTENTS
The Jones Act
VII. PRACTICE AND PROCEDURE D. Election of Alternative Remedies 2. Electing Particular Remedies
Demand and receipt by seaman injured by negligence of ship's officer of maintenance, cure, and wages under general maritime law is not election not to proceed under provisions of 46 USCS Appx § 688; election required from seaman by § 688 is between recovery for negligence and for unseaworthiness of vessel. Pacific S.S. Co. v Peterson (1928) 278 US 130, 73 L Ed 220, 49 S Ct 75.
Injured seaman has three means of recovery against his employer: (1) maintenance and cure, (2) negligence under 46 USCS Appx § 688, and (3) unseaworthiness. McAllister v Magnolia Petroleum Co. (1958) 357 US 221, 2 L Ed 2d 1272, 78 S Ct 1201 (not followed Public Admr. of County of New York v Angela Compania Naviera, S.A. (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15) and (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
Where three causes of action, for maintenance and cure, for unseaworthiness of vessel, and under 46 USCS Appx § 688, arose at same time but depended upon different facts and distinct principles of law, libelant was required to elect between cause of action for unseaworthiness and cause of action under 46 USCS Appx § 688, tort actions, but no election was required as to claim for maintenance and cure, wherein duty of shipowner arose as incident to contract for wages. Smith v Lykes Brothers-Ripley S.S. Co. (1939, CA5 La) 105 F2d 604, cert den 308 US 604, 84 L Ed 505, 50 S Ct 141.
Election provided by 46 USCS Appx § 688 is between old rule for indemnity for injuries occasioned by unseaworthiness, irrespective of negligence, and rule allowing maintenance and cure. Keefe v Matson Nav. Co. (1930, DC Wash) 46 F2d 123.
Although actions under 46 USCS Appx § 688 modified prior maritime law by granting seamen injured by negligence of employer right to receive damages therefor, traditional rights of seamen to recover indemnification for injuries flowing from unseaworthiness of vessel and for maintenance and cure remain and are separate and distinct from one another. Watson v The Letitia Lykes (1955, DC Cal) 135 F Supp 933.
563. Maintenance and cure
Right to maintenance, cure, and wages, implied in law as contractual obligation arising out of nature of employment, is independent of right to indemnity or compensatory damages for injury caused by negligence under 46 USCS Appx § 688, yet both rights are consistent and cumulative. Jones v Waterman S.S. Corp. (1946, CA3 Pa) 155 F2d 992, 1946 AMC 859; Reardon v California Tanker Co. (1958, CA2 NY) 260 F2d 369, cert den 359 US 926, 3 L Ed 2d 628, 79 S Ct 609; McKinley v Carnegie-Illinois Steel Corp. (1947, DC Pa) 69 F Supp 893.
Where complaint alleged two counts, one for damages under 46 USCS Appx § 688 and other for maintenance and cure, District Court did not have jurisdiction of action for maintenance and cure because it had jurisdiction of damage action, since separate and distinct causes of action were stated. Jordine v Walling (1950, CA3 Pa) 185 F2d 662.
Jury verdict indemnifying seaman for total and permanent disability in action under 46 USCS Appx § 688 does not duplicate vessel's entirely separate obligation to provide maintenance and cure. Cox v Dravo Corp. (1975, CA3 Pa) 517 F2d 620, cert den 423 US 1020, 46 L Ed 2d 392, 96 S Ct 457.
Defendant is entitled to jury trial as of right on his claim for maintenance and cure where it is clear from reading of record that claim for failure to provide adequate maintenance and cure and that 46 USCS Appx § § 688 et seq. negligence were each based on both 1975 and 1978 injuries. Lyons v Ohio River Sand & Gravel Co. (1982, CA4 W Va) 683 F2d 99.
Recovery by injured seaman for maintenance, wages, and cure is of right, while recovery for personal injury is based upon acts of omission or commission of imposed duties. The Progress (1937, DC Wash) 21 F Supp 572, 1938 AMC 458.
Law suit by seaman to recover maintenance is separate and distinct from suit for injury under 46 USCS Appx § 688; duty to provide maintenance to ill or injured seaman is imposed irrespective of presence or absence of negligence on part of seaman or shipowner. Rutherford v Sea-Land Service, Inc. (1983, ND Cal) 575 F Supp 1365, 14 Fed Rules Evid Serv 1297 (disapproved on other grounds Gardiner v Sea-Land Service, Inc. (CA9 Cal) 786 F2d 943, 122 BNA LRRM 2001, 104 CCH LC P 11921).
Maintenance and cure arise implicitly from contractual relationship between seaman and his employer, and is designed to insure recovery of these individuals who are disabled while in service of ship; maintenance is per diem allowance paid as long as seaman is not in hospital and has not reached point of "maximum care," which is achieved when further medical treatment will result in no betterment of seaman's condition. Flowers Transp., Inc. v Fox (1985, ED Mo) 606 F Supp 263.
Injured seaman living with parents with no agreement to pay them for room and board while disabled is not entitled to receive maintenance from shipowner in whose employment he was injured. Toups v Du-Mar Marine Contractors, Inc. (1985, ED La) 644 F Supp 475.
Seaman is denied further care and maintenance payments from employer because maximum care has been effected and no further medical treatment is required to improve condition where seaman received care and maintenance payments for several years and doctors testified seaman no longer showed objective signs of soft tissue injury and no further medical treatment would improve condition. Belcher Towing Co. v Howard (1986, SD Fla) 638 F Supp 242.
Seaman, injured while employed on vessel, has two remedies: one at law under 46 USCS Appx § 688 to recover damages with respect to his personal injury, and another under general maritime law for maintenance, wages and cure, latter being contractual which seaman has as matter of right, irrespective of negligence or fault. Oceanic Fisheries Co. v United States Fidelity & Guaranty Co. (1941) 9 Wash 2d 484, 115 P2d 714.
564. --Effect of previous recovery under 46 USCS Appx § 688
Action under 46 USCS Appx § 688 may be maintained by injured seaman against his employer even though seaman has demanded and received of employer maintenance and cure. Pacific S.S. Co. v Peterson (1928) 278 US 130, 73 L Ed 220, 49 S Ct 75; Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246.
Election to sue under 46 USCS Appx § 688 for injuries does not bar recovery by seaman for maintenance and cure under general admiralty law. Lippman v Romich (1928, CA9 Cal) 26 F2d 601, 1928 AMC 1014; Runyan v Great Lakes Dredge & Dock Co. (1944, CA6 Ohio) 141 F2d 396, 1944 AMC 614.
Recovery in action for compensatory damages under 46 USCS Appx § 688 did not preclude subsequent action for damages under general maritime law, for failure to provide injured seaman with maintenance and cure. Smith v Lykes Brothers-Ripley S.S. Co. (1939, CA5 La) 105 F2d 604, cert den 308 US 604, 84 L Ed 505, 60 S Ct 141; The W. H. Hoodless (1941, DC Pa) 38 F Supp 432; Muise v Abbott (1945, DC Mass) 60 F Supp 561, affd (CA1 Mass) 160 F2d 590.
Pendency of action in state court under 46 USCS Appx § 688 for damages and for wages over and above board and room does not bar action in federal court for maintenance and cure. Berglann v The Winona (1942, DC Or) 46 F Supp 483, 1942 AMC 1315.
Suit under 46 USCS Appx § 688 to recover damages for negligence barred subsequent suit for cure where issue of medical expenses was litigated, but did not bar subsequent suit for maintenance where there was no evidence introduced on value of room and board. La Fontaine v The G. M. McAllister (1951, DC NY) 101 F Supp 826.
565. Preclusion of double recovery
Seaman may not be awarded maintenance and cure covering period for which he had received award for lost wages under 46 USCS Appx § 688. Blanchard v Cheramie (1973, CA5 La) 485 F2d 328 (disagreed with Holmes v J. Ray McDermott & Co. (CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682) as stated in Tullos v Resource Drilling, Inc. (CA5 La) 750 F2d 380.
Plaintiff seaman injured on drilling barge had choice of remedies; he could proceed against his employer under 46 USCS Appx § 688 for damages for his injuries and for maintenance and cure, or he could sue owners and operators of offshore rig or drilling barge in maritime tort for damages for his injuries, or, he could sue owners of rig as third party tort-feasors under maritime law for personal injuries and his employer for maintenance and cure, but plaintiff can recover only once for any one injury. Romero v Frank's Casing Crew & Rental Tools, Inc. (1964, WD La) 229 F Supp 41, 1964 AMC 1164, affd (CA5 La) 342 F2d 999.
Right to maintenance, cure, and wages arises out of implied contractual obligation, and is separate and independent from right to receive compensatory damages in negligence suit under 46 USCS Appx § 688 or unseaworthiness action; and while these rights are separate, and not mutually exclusive, there is certain degree of overlap; clearly, seaman's right to bring action for damages, in addition to receiving maintenance and cure, does not entitle him to double recovery for any given element of damage. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.
Right to recover compensatory damages under 46 USCS Appx § 688 for injuries caused by negligence is alternative of right to recover indemnity under old rules on ground that injuries were occasioned by unseaworthiness, and it is between these two inconsistent remedies for injury, both grounded in tort, that election is to be made under maritime law as modified by 46 USCS Appx § 688. Pacific S.S. Co. v Peterson (1928) 278 US 130, 73 L Ed 220, 49 S Ct 75.
That injured seaman brought action under 46 USCS Appx § 688 in state court against vessel owner alone and recovered judgment, which was unsatisfied, did not constitute election and bar him from proceeding against vessel on counts based on unseaworthiness and for maintenance and cure. Pratt v United States (1964, CA1 Me) 340 F2d 174.
Election referred to in 46 USCS Appx § 688 is not between action based on negligence under new rules and one based on unseaworthiness under old rules, but is simply between action against ship without benefit of 46 USCS Appx § 688 and necessarily limited to claim of unseaworthiness, and action against employer under 46 USCS Appx § 688 for negligence and under general maritime law for unseaworthiness; seaman who has been injured due to negligence of his employer and/or unseaworthiness of ship can, in action in admiralty against his employer, allege and prove both negligence and unseaworthiness, but if court finds that proximate cause of seaman's injuries was both negligence and unseaworthiness, seaman would be allowed to recover for either damages arising from negligence or damages arising from unseaworthiness but not both. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.
567. --Necessity of making election
Seaman may maintain action based both upon unseaworthiness of vessel and negligence and was not required to elect between the two; thus, jury could base verdict on both theories, and moneys awarded included damages under both theories. McAllister v Magnolia Petroleum Co. (1958) 357 US 221, 2 L Ed 2d 1272, 78 S Ct 1201 (not followed Public Admr. of County of New York v Angela Compania Naviera, S.A. (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15) and (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
Plaintiff bringing action at law charging shipowner with negligence under 46 USCS Appx § 688, and with breach of warranty of seaworthiness under general maritime principles, is not required to elect as between these two causes of action, since plaintiff was entitled to have jury pass on both issues in accordance with established principles of negligence and general maritime law. German v Carnegie-Illinois Steel Corp. (1946, CA3 Pa) 156 F2d 977.
Joinder of claim under 46 USCS Appx § 688 and claim under seaworthiness doctrine is proper, and plaintiff may not be compelled to elect as between 46 USCS Appx § 688 claim and unseaworthiness claim. Williams v Tide Water Associated Oil Co. (1955, CA9 Wash) 227 F2d 791, cert den 350 US 960, 100 L Ed 834, 76 S Ct 348.
Where cause of action is based on defective condition of winch, libellant cannot be required to elect between unseaworthiness and negligence. Sundquist v Gray (1930, DC Wash) 48 F2d 638, 1931 AMC 167.
Where plaintiff seeks damages under 46 USCS Appx § 688 based on negligence and under maritime and admiralty laws based on doctrine of unseaworthiness, right to recover could be based on either doctrine of negligence or unseaworthiness and plaintiff was not required to elect and it was proper to submit both issues to jury. McLeod v Union Barge Line Co. (1951, DC Pa) 95 F Supp 366, affd (CA3 Pa) 189 F2d 610.
Originally, maritime law provided seamen only with remedy for unseaworthiness, remedy for negligence being denied; subsequently, action of 46 USCS Appx § 688 gave seaman either of these remedies in alternative, both may be pleaded in same complaint, without election. Hilderbrand v United States (1954, DC NY) 134 F Supp 514, affd (CA2) 226 F2d 215.
Under 46 USCS Appx § 688, seaman must allege and prove negligence which may embrace both failure to supply and maintain seaworthy vessel properly equipped and manned, and negligent acts of master or crew members; seaman is not required to choose between negligence and unseaworthiness as basis of his action. Sawyer v California Tanker Co. (1957, DC NJ) 147 F Supp 324.
568. Death on High Seas Act (46 USCS Appx § § 761 et seq.)
Although parents and children could recover for wrongful death of seaman working on surveying vessel under either 46 USCS Appx § 688 or Death on High Seas Act (46 USCS Appx § § 761 et seq.), these provisions do not preclude remedy under general maritime law. Spiller v Thomas M. Lowe, Jr. & Associates, Inc. (1972, CA8 Ark) 466 F2d 903, 20 ALR Fed 89.
In action for wrongful death of crew member, personal representative could bring general maritime action for wrongful death or action under 46 USCS Appx § 688 or Death on High Seas Act (46 USCS Appx § § 761-768) and was not required to make election among theories of recovery. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.
JONES ACT - TABLE OF CONTENTS