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Recent Personal Injury and Car Accident News
An important victory in the fight for individual rights (as opposed to insurer rights) is the case of Yukumoto and HMSA v. Tawahara. In that case on May 26, 2017, the Hawaii Supreme Court rejected the efforts of a health insurer who tried to convert its insurance coverage into a 'loan agreement' and recover its medical expense payments from Mr. Yukumoto when he had a 3rd party claim - in spite of the fact that he was not being fully compensated for his losses. This insidious insurance practice has been damaging the citizens and members of the Hawaii community for many years. For more info, see the decision here: Yukumoto and HMSA v. Tawahara, Hawaii Sup. Ct. No. SCAP-15-0000460 (May 26, 2017).
JONES ACT - TABLE OF CONTENTS
The Jones Act
VII. PRACTICE AND PROCEDURE K. Appeal and Review
Even if admiralty procedural rules govern action brought under 46 USCS Appx § 688 when tried to court, when jury trial has been had, appellate review is controlled by USCS Rules of Civil Procedure. Blake v W. R. Chamberlin & Co. (1949, CA9 Cal) 176 F2d 511.
Findings in admiralty, including actions under 46 USCS Appx § 688, should be sufficiently specific to permit fair appellate review of manner in which trial court resolved issues upon which its judgment depends. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 4 ALR3d 517.
675. Reviewable decisions
Whether state court in trying case under 46 USCS Appx § 688 proceeded in such manner that all substantial rights of parties under controlling federal law would be protected raised federal question reviewable by Supreme Court. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246, 1942 AMC 1645.
Order in lower court entering judgment against seaman on claims for negligence under 46 USCS Appx § 688 and unseaworthiness was final denial of seaman's claims in these respects and constitutes appealable order, even though maintenance and cure claim still remained before District Court. Crews v Arundel Corp. (1967, CA5 Fla) 386 F2d 528.
In action for alleged joint negligence brought against one defendant under local tort law and against other defendant under 46 USCS Appx § 688, dismissal of local tort claim is not appealable until entry of final judgment and appeal taken prior to that time is incurably defective; only in event that Jones Act defendant is found liable would claim under local tort law survive. Kirtland v J. Ray McDermott & Co. (1978, CA5 La) 568 F2d 1166 (disagreed with Alcorn County v U.S. Interstate Supplies, Inc. (CA5 Miss) 731 F2d 1160, 39 FR Serv 2d 171, 76 ALR Fed 181) and (disagreed with Lac Courte Oreilles Band of Lake Superior Chippewa Indians v Wisconsin (CA7 Wis) 760 F2d 177, 2 FR Serv 3d 362).
District Court order staying proceedings brought by seaman until proceeds of allegedly fraudulently induced settlement were returned to employer was appealable under 28 USCS § 1292(a)(1) as interlocutory order granting injunction; were there any doubt Court of Appeals would treat appeal as petition for writ of mandamus and, finding clear abuse of discretion, would issue writ forthwith. Smith v Pinell (1979, CA5 La) 597 F2d 994.
While determination that plaintiff is not Jones Act -46 USCS Appx § 688- seaman is appealable, because it effectively terminates suit, portion of interlocutory order determining that plaintiff is § 688 seaman merely allows him to pursue his claim in hope of obtaining final judgment against defendant. Re Complaint of Patton-Tully Transp. Co. (1983, CA5 Miss) 715 F2d 219.
Judgment approving settlement in Jones Act was not final where judgment was not rendered on any intervenor claims. Noble Drilling v Davis (1995, CA5 La) 64 F3d 191.
676. Scope and standard of review
In reviewing judgment of trial court sitting without jury in admiralty, Court of Appeals may not set aside judgment below unless it is clearly erroneous; no greater scope of review is exercised by appellate tribunals in admiralty cases than they exercise under Rule 52(a) of Federal Rules of Civil Procedure; finding is clearly erroneous when although there is evidence to support it, reviewing court on entire evidence is left with definite and firm conviction that mistake has been committed. McAllister v United States (1954) 348 US 19, 99 L Ed 20, 75 S Ct 6, modif den 348 US 957, 99 L Ed 748, 75 S Ct 447.
Scope of review in admiralty appeals is identical to "clearly erroneous" rule in USCS Rules of Civil Procedure, Rule 52(a), which applies in ordinary nonjury civil case. Prendis v Central Gulf S.S. Co. (1963, CA4 Va) 330 F2d 893.
District Court's findings regarding unseaworthiness and negligence are generally treated as findings of fact reviewable under "clearly erroneous" standard of USCS Rules of Civil Procedure, Rule 52(a). Tucker v Calmar S.S. Corp. (1972, CA4 Md) 457 F2d 440.
Appellate review of actions brought under 46 USCS Appx § 688 is limited by "clearly erroneous" standard of USCS Rule of Civil Procedure, Rule 52(a); trial court commits error in disbelieving plaintiff's testimony when sole witness was plaintiff, whose deposition taken 8 months prior to trial amply warned defense of actual allegations, yet no witnesses were called to refute crucial testimony of events leading to injury; trial court order of summary judgment against plaintiff should be reversed as plaintiff's version was neither contradicted nor directly impeached. Santana v United States (1977, CA1 Puerto Rico) 572 F2d 331.
Trial court's resolution of issues of unseaworthiness must be considered as findings of fact and Court of Appeals must accept them unless convinced they are demonstrably incorrect. Chisholm v Sabine Towing & Transp. Co. (1982, CA5 Tex) 679 F2d 60.
Appropriate standard of review for Court of Appeals to test sufficiency of evidence in Jones Act -46 USCS Appx § 688- and unseaworthiness claims tried before jury is whether there is reasonable evidentiary basis for jury's verdict and reviewing court will not disregard jury's fact findings as to questions independently propounded, even if fundamentally wrong result has been reached. Loehr v Offshore Logistics, Inc. (1982, CA5 La) 691 F2d 758.
Determining shipowner's base of operations, where relief is sought under Jones Act by foreign seaman against foreign vessel operator as employer, is factual finding which Court of Appeals will not disturb on review unless clearly erroneous. Dalla v Atlas Maritime Co. (1985, CA9 Cal) 771 F2d 1277.
Appellate review of determination of whether injured worker is seaman under Jones Act, which is mixed question of law and fact, is plenary. Roberts v Cardinal Servs. (2001, CA5 La) 266 F3d 368.
Application of terms "seamen" and "vessel" to particular circumstances of case is best left to trier of fact; even where underlying facts are not in dispute, if conflicting inferences can be drawn, Court cannot as matter of law rule that movant has or has not met necessary factual predicates. Hartley v Peter Kiewit Sons' Co. (1982, ED NY) 543 F Supp 401.
Scope of state court's review in Jones Act (46 USCS Appx § 688) cases is same as that accorded Federal appellate courts. Smith v Cameron Crews, Inc. (1977, La App 3rd Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.
677. State appellate review
In suit in state court under 46 USCS Appx § 688, if error is shown to have occurred during trial court proceedings, there should be reversal unless it affirmatively appears from whole record that it was not prejudicial. Pearson v Tide Water Associated Oil Co. (1950, Cal App) 223 P2d 669, hear gr by sup ct, app dismd.
In cases tried under 46 USCS Appx § 688 in state courts, appellate review of facts is restricted to inquiry of whether evidence reasonably supports factual findings of jury. Turner v D & A Constr. Co. (1969, La App 3rd Cir) 220 So 2d 223.
Review by state appellate court of jury verdict in suits under general maritime law as expanded by 46 USCS Appx § 688 is necessarily identical to that of federal courts; even though state appellate courts have authority from their state constitution to review both law and facts of case, they may not, under federal law and jurisprudence, disturb finding of trial jury on merits in case under 46 USCS Appx § 688 unless there is no reasonable basis for jury's conclusion; state appellate review of jury awards under maritime law and under 46 USCS Appx § 688 is, as in federal courts, extremely limited and must stand unless appellate courts find there is no law and no evidence to sustain them, rendering them so excessive as to be obviously punitive, motivated by prejudice, passion, partiality or corruption. Trahan v Gulf Crews, Inc. (1971) 260 La 29, 255 So 2d 63.
Review of jury's verdict in case under 46 USCS Appx § 688 by state appellate court, with reversal for want of sufficient evidence, does not amount to denial of right to trial by jury. Hopson v Gulf Oil Corp. (1951) 150 Tex 1, 237 SW2d 352.
678. --Federal rules applicableState rule that appellate courts may hear appeals on both facts and law and may reverse lower court on finding of fact when such factual determination is deemed erroneous does not apply to claim under 46 USCS Appx § 688 tried in state courts. Presley v Upper Mississippi Towing Corp. (1961, La App 1st Cir) 141 So 2d 411.
Appellate review by state appellate court of case brought under 46 USCS Appx § 688 and general maritime law is governed by Rule 52(a) of Federal Rules of Civil Procedure. Melancon v I. M. C. Drilling Mud (1973, La App 1st Cir) 282 So 2d 532, application den (La) 283 So 2d 769 and application den (La) 283 So 2d 771.
Scope of State Court of Appeal review in cases brought under Jones Act (46 USCS Appx § 688) is same as that accorded Federal Appellate Courts. Smith v Cameron Crews, Inc. (1977, La App 3rd Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.
State court was governed by federal rule as to whether there was substantial evidence tending to show breach of duty by defendant in determining sufficiency of evidence to support verdict in action under 46 USCS Appx § 688. King v Nicholson Transit Co. (1951) 329 Mich 586, 46 NW2d 389, cert den 342 US 886, 96 L Ed 665, 72 S Ct 176.
In determining whether evidence is sufficient to support verdict in case involving 46 USCS Appx § 688, state appellate court is governed by federal rule as to whether there is substantial evidence tending to show breach of duty on part of steamship company. Lieflander v States S. S. Co. (1935) 149 Or 605, 42 P2d 156.
State appellate court, in passing upon question of excessiveness of verdict in action brought under 46 USCS Appx § 688, should accord to trial court's determination of that matter as much consideration as given by federal appellate courts to similar rulings of federal trial judges. McCauley v Pacific Atlantic S.S. Co. (1941) 167 Or 80, 115 P2d 307.
Power of state appellate court to determine for itself from examination of evidence what damages are and to enter judgment for amount so found cannot be exercised in case arising under 46 USCS Appx § 688, because it would affect fundamental rights of plaintiff which are controlled by federal decisions; exercise by state appellate court of its asserted power under state law to reduce amount of verdict and enter judgment for lesser sum than that found by jury constitutes failure to observe traditional lines of demarcation between functions of court and jury which state courts must maintain in order that intention of Congress in enacting 46 USCS Appx § 688 may be effected. Hust v Moore-McCormack Lines, Inc. (1947) 180 Or 409, 177 P2d 429.
679. Sufficiency of evidence
Appellate court's function in testing sufficiency of evidence in cases under 46 USCS Appx § 688 is exhausted when evidentiary basis for jury's verdict becomes apparent, it being immaterial that court might draw contrary inference or feel that another conclusion is more reasonable. Lavender v Kurn (1946) 327 US 645, 90 L Ed 916, 66 S Ct 740.
On appeal from judgment for plaintiff in suit by seaman to recover for personal injuries, under 46 USCS Appx § 688, sufficiency of evidence as basis for verdict was to be tested by taking as standard whatever facts jury might reasonably have found which were supported by substantial evidence together with such reasonable inferences therefrom as might have been drawn. Reskin v Minnesota-Atlantic Transit Co. (1939, CA2 NY) 107 F2d 743, 1940 AMC 111.
Sufficiency of evidence as basis for verdict in case under 46 USCS Appx § 688 is to be tested by appellate court by taking as standard whatever facts jury might reasonably have found which were supported by substantial evidence together with such reasonably inferences therefrom as might have been drawn. Reskin v Minnesota-Atlantic Transit Co. (1939, CA2 NY) 107 F2d 743.
Sufficiency of findings by trial court in case under 46 USCS Appx § 688 is considered by appellate court with reference to provisions of USCS Rules of Civil Procedure, Rule 52. Matson Navigation Co. v Hansen (1942, CA9 Cal) 132 F2d 487.
In attempting to decide whether there was introduced sufficient evidence of causal negligence under 46 USCS Appx § 688 count of complaint, and of unseaworthiness under second count of complaint, appellate court must be concerned solely with whether testimony on behalf of plaintiff, and reasonable inference to be drawn from it in light most favorable to plaintiff, made out prima facie case allowing plaintiff to have jury pass upon his cause of action. Numes v Farrell Lines, Inc. (1955, CA1 Mass) 227 F2d 619.
Under 46 USCS Appx § 688 and 45 USCS § § 51 et seq., tests of sufficiency of evidence is merely whether proofs justify with reason conclusion; it does not matter that, from evidence, jury may also with reason, on ground of probability, attribute result to other causes, including plaintiff's own negligence. Barboza v Texaco, Inc. (1970, CA1 Mass) 434 F2d 121.
Constitutional requirement, that sufficiency of evidence to support verdict is for jury in first instance and under Seventh Amendment, re-examination of facts found by jury is strictly limited to rules of common law, is reinforced by statute in cases brought under 46 USCS Appx § 688. Menard v Penrod Drilling Co. (1976, CA5 La) 538 F2d 1084 (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
Appropriate standard for testing sufficiency of evidence in case brought under 46 USCS Appx § 688 is whether there is reasonable evidentiary basis for jury's verdict. Campbell v Seacoast Products, Inc. (1978, CA5 La) 581 F2d 98.
For sufficiency claims arising under 46 USCS Appx § 688, standard of review is stricter, reflecting corresponding leniency of evidentiary showing required to make out case under § 688; court applies same standard whether reviewing findings regarding defendant's or plaintiff's negligence. Fontenot v Teledyne Movible Offshore, Inc. (1983, CA5 La) 714 F2d 17.
Ordinarily, Court of Appeals review sufficiency of evidence by stricter standard for 46 USCS Appx § 688 claims than for other claims such as unseaworthiness; this is corrollary of lighter burden of proof demanded of seaman to make out claim under 46 USCS Appx § 688. Robin v Wilson Bros. Drilling (1983, CA5 La) 719 F2d 96.
Court will not disturb jury award of $ 900,000 for plaintiff seaman's back injury where there was ample evidence regarding injury, inability to earn living, and pain and suffering. Diefenbach v Sheridan Transp. (2000, CA1 Mass) 229 F3d 27.
Appellate function in 46 USCS Appx § 688 cases has been narrowed to extent that very little evidence is necessary to uphold factfinding of negligence. Brown & Root, Inc. v Wade (1974, Tex Civ App Houston (14th)) 510 SW2d 408, writ ref n r e.
680. --Particular circumstancesIn action against shipowner arising out of death of seaman based upon aggravation of tubercular condition due to condition of quarters, certificate of inspection was not conclusive of condition of ship and quarters. Murphy v Overlakes Freight Corp. (1949, CA2 NY) 177 F2d 342, cert den 339 US 913, 94 L Ed 1339, 70 S Ct 573.
Even though appellate court is bound by findings of fact of district judge if they are supported by substantial evidence and are not clearly erroneous, appellate court may attach different legal interpretation to word "crew" from that applied by district judge in deciding whether 46 USCS Appx § 688 is relevant. Wilkes v Mississippi River Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383, cert den 346 US 817, 98 L Ed 344, 74 S Ct 29.
With respect to District Court's findings that headaches of plaintiff suing under 46 USCS Appx § 688 resulted from collision of purse boat on which he was serving with purse boat of his captain, District Court had before it relevant and competent evidence supporting its conclusions and judgment on both physical and fiscal extent of plaintiff's suffering; thus appellate court was precluded from substituting its own assessment of disputed facts for considered judgment of trial judge who heard all testimony and observed demeanor of witnesses. Brown v Aggie & Millie, Inc. (1973, CA5 La) 485 F2d 1293.
In suit claiming Jones Act (46 USCS Appx § 688) negligence by vessel employee who sustained injuries in fall while debarking from vessel onto dock via slanting metal ramp that was only means of ingress and egress from vessel, evidence does not justify upsetting verdict in favor of vessel owner and operator of dock facility where employee was obese woman, ramp had nonskid tread and was used by crewmembers to go to and from vessel, ramp could be readily negotiated and was adequately lighted, there was no evidence of any slippery substance on ramp, and employee testified that she was wearing her "ballerina" shoes rather than her regular shoes she wore as member of crew. Thornton v Gulf Fleet Marine Corp. (1985, CA5 La) 752 F2d 1074.
Where there was only mere scintilla of evidence shown as to dermatological condition of plaintiff seaman and his failure to prove causal relationship to injury sustained, court was compelled to direct verdict for defendant shipowner-employer, as reasonable men and women could not differ in finding of no negligence. Diddlebock v Alcoa S.S. Co. Inc. (1964, ED Pa) 237 F Supp 538, 1966 AMC 444.
Post-trial motion for partial new trial on issue of punitive damages was denied where evidence was insufficient to justify finding that decedent's death after going berserk was result of malicious motive of, or conscious or reckless indifference to interests of decedent by defendant. Phillip v United States Lines Co. (1965, ED Pa) 240 F Supp 992, 1965 AMC 494, affd (CA3 Pa) 355 F2d 25, 1966 AMC 292.
In suit by plaintiff to recover for death of decedent based on theory that death by drowning was due to defective gangplank, motion to set aside verdict in favor of plaintiff was denied, where evidence showed that decedent was last seen approaching gangplank few seconds prior to splash in water, since standard for measuring amount of evidence necessary to carry case to jury is liberal federal standard. Pate v New York (1951, Sup) 106 NYS2d 378.
In action brought under 46 USCS Appx § 688, appellate court may review damage awards of jury; absent abuse of discretion by jury, damage verdict will not be set aside. Ballard v Forbes (1954, CA1 Mass) 208 F2d 883.
Determination of damages under 46 USCS Appx § 688 is factual question, finding that will not be disturbed by appellate court, unless final result or method used by trial court in reaching result was clearly erroneous, even though appellate court might have reached different result or even used slightly different method of arriving at that result. Gardner v National Bulk Carriers, Inc. (1964, CA4 Va) 333 F2d 676.
In action under 46 USCS Appx § 688, where jury was so misinformed, and to some extent uninformed, in that it did not have before it proper instructions and advice regarding damages issue, extraordinary remedy of remanding to have jury redetermine damages under correct statement of applicable law is justified. Crador v Boh Bros., Inc. (1973, CA5 La) 473 F2d 1040.
Standard in cases under 46 USCS Appx § 688 for reviewing refusal of trial judge to disturb verdict as inadequate is same as when he has refused to upset one as excessive. Ressler v States Marine Lines, Inc. (1975, CA2 NY) 517 F2d 579, cert den 423 US 894, 46 L Ed 2d 126, 96 S Ct 193.
Amount of maintenance to which injured seaman is entitled is question of fact and will not be overturned unless clearly erroneous. Thezan v Maritime Overseas Corp. (1983, CA5 La) 708 F2d 175, cert den 464 US 1050, 79 L Ed 2d 189, 104 S Ct 729.
Court's finding of $ 15 maintenance per day is subject to clearly erroneous standard on review. Campbell v Teledyne Movible Offshore, Inc. (1983, CA5 La) 714 F2d 429.
682. De novo consideration on appeal
Case under 46 USCS Appx § 688, being in admiralty, may be tried de novo in appellate court. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224.
Even though appeal in admiralty is trial de novo, upon such appeal, findings of District Court as to facts will be accepted by appellate court unless clearly against preponderance of evidence. Buford v Cleveland & Buffalo S.S. Co. (1951, CA7 Ill) 192 F2d 196.
In admiralty matters, there is no longer trial de novo on appeal, and federal appellate tribunals have no greater scope of review in admiralty actions than they have under USCS Rules of Civil Procedure, Rule 52(a). Clinton v Joshua Hendy Corp. (1959, CA9 Cal) 264 F2d 329.
District Court's conclusion that Liberian Law, rather than Jones Act, governs case is question of law subject to de novo review by Court of Appeals. Pereira v Utah Transport, Inc. (1985, CA9 Cal) 764 F2d 686, cert dismd (US) 89 L Ed 2d 362, 106 S Ct 1253.
Whether claim has been stated under Jones Act is question of law subject to de novo review. Dalla v Atlas Maritime Co. (1985, CA9 Cal) 771 F2d 1277.
District Court's determination of subject matter jurisdiction under Jones Act is question of law and reviewed de novo. Trentacosta v Frontier Pacific Aircraft Industries, Inc. (1987, CA9 Cal) 813 F2d 1553.
683. Lack of witnesses or testimony in lower court
Where all material facts in case under 46 USCS Appx § 688 were established by deposition, findings of District Court are not accorded as great weight as they might be if that court had had opportunity to observe and hear witnesses testify to facts. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224.
Principle that in admiralty cases no greater scope of review is exercised by appellate tribunals than they exercise under USCS Rules of Civil Procedure, Rule 52(a), applies with less force where most of evidence is in form of depositions, and where district judge did not have opportunity to observe those witnesses. Spanos v The Lily (1958, CA4 Va) 261 F2d 214.
Conclusion of Deputy Commissioner, judge, or jury that one is or is not master or member of crew is not binding upon reviewing court if basic facts competently found by deputy commissioner, judge, or jury rightly call for different conclusion. Schantz v American Dredging Co. (1943, CA3 Pa) 138 F2d 534.
Falsity of plaintiff's testimony in case under 46 USCS Appx § 688 was plausible argument to be made to jury but cannot be considered by appellate court. Schybinger v Interlake S.S. Co. (1959, CA7 Ill) 273 F2d 307.
Issue of shipowner's liability, when submitted to jury on grounds of unseaworthiness and negligence, can be upheld only if sustainable under both theories. Horton v Moore-McCormack Lines, Inc. (1964, CA2 NY) 326 F2d 104, 8 FR Serv 2d 14a.42, Case 1.
JONES ACT - TABLE OF CONTENTS