VII. PRACTICE AND PROCEDURE L. Settlement - Maritime Lawyer Hawaii
   

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William Lawson - Admiralty Accident Attorney Hawaii
 
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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 L. Settlement

685. Generally Tugboat owner is entitled to evidentiary hearing on his motion to rescind agreement settling seaman's claim based on disabling arm injury, so that owner could present motion picture evidence of seaman lifting various sorts of building materials. Russell v Puget Sound Tug & Barg Co. (1984, CA9 Wash) 737 F2d 1510.

Where injured seaman enters into settlement agreement containing "Mary Carter" provision providing that settling defendant will be remibursed to specified degree from any recovery plaintiff receives in suit against nonsettling defendant, court's discretion in approving and enforcing agreement, as well as in disclosing terms thereof to jury, is magnified, since seaman is traditional ward of admiralty; adequacy of consideration is relevant in admiralty court's scrutiny of seaman's release, and party asserting release has burden of affirmatively showing that no advantage has been taken. Wilkins v P.M.B. Systems Engineering, Inc. (1984, CA5 Tex) 741 F2d 795.

Settlement of suit for injury under traditional admiralty claim in negligence under 46 USCS Appx § 688 was improper by set-off against company's annuities and benefits plan since such settlement cannot be classified as "benefit resulting from premiums. . . paid by any of Gulf companies under any Workmen's Compensation law or similar legislation." Dupree v Gulf Oil Corp. (1971, ED Tex) 328 F Supp 480.

Motion of injured seaman to enforce alleged settlement agreement must be denied where corporate defendant challenged both existence of agreement and scope of counsel's authority to settle case, and plaintiff failed to show "meeting of the minds" sufficient to result in binding and enforceable oral settlement agreement made with either actual or apparent authority. Thompson v Continental Emsco Co. (1986, SD Tex) 629 F Supp 1160.

Settling maritime defendants' motions under state code provision for declaration of good faith settlement precluding subsequent actions for contribution and indemnity are denied and denials will not be certified for interlocutory appeal under 28 USCS § 1292, because (1) state procedural statutes governing settlement of state torts do not apply to Jones Act (46 USCS Appx § 688) and maritime actions, (2) immediate appeal will not resolve federal rule regarding settlement of multidefendant maritime actions, and (3) interests of public and injured seaman call for prompt and just resolution of claims. Daughtry v Diamond M Co. (1988, CD Cal) 693 F Supp 856.


686. Claims of minors

In action brought under 46 USCS Appx § 688, court is mindful of its obligations to protect interests of minors and in so doing, to scrutinize terms of any proposed settlement of their lawful claims. Donnarumma v Barracuda Tanker Corp. (1978, CD Cal) 79 FRD 455.

Settlement of minor-beneficiaries' claim executed by minors' natural tutrix with defendants after action to enforce minors' claim was instituted by personal representative of decedent, is invalid. Benoit v Fireman's Fund Ins. Co. (1978, La) 355 So 2d 892, on remand (La App 3d Cir) 361 So 2d 1332.to join ship. Karvelis v Constellation Lines S.A. (1986, CA2 NY) 806 F2d 49.

JONES ACT - TABLE OF CONTENTS


 

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Jones Act maritime law and seaman cases

STATUTE'S LANGUAGE

CASE LAW


I. IN GENERAL

A. General Principles

B. Other Remedies

1. Traditional Maritime
Remedies

2. Federal Law Remedies

3 Remedies by State Law

C. Foreign Involvement

1. In General

2. Place of Injury

3. Flag or Ownership
of Vessel

a. In General

b. Foreign Ownership

c. Foreign Vessels
with American Interests

4. Nationality of Seaman

5. Other Factors



II. PERSONS ABLE
TO RECOVER

A. Seamen

1. General Principles

a. In General

b. Status as Seaman

2. "Vessel in Navigation"

a. In General

b. Status of Vessel

c. Particular Vessels

3. Particular Seamen

B. Representatives of
Seamen



III. EMPLOYMENT

A. In General

B. Particular Entities
as Employers

C. In Course of
Employment



IV. NEGLIGENCE

A. In General

B. Vicarious Liability

1. In General

2 Particular Acts of Crew

C. Circumstances of
Injury

1. Assault

a. In General

b. Assaults Among Crew
& Officers

2. Improper Supervision

a. In General

b. Particular Acts

3. Medical Care

4. Particular Properties
of Vessel & Dock

5. Other Circumstances



V. DEFENSES

A. Seaman's Conduct

1. Comparative
Negligence

2. Assumption of Risk

3. Particular
Circumstances

B. Release

C. Limitations of Actions

1. Statutory Limitations

2. Laches

D. Collateral Estoppel
& Res Judicata

E. Limitation of Liability

F. Other Defenses



VI. DAMAGES

A. In General

B. Damages for Injury

1. Elements of Damages

2 Award Deductions

C. Wrongful Death

1. Elements of Damages

2. Computation of Award



VII. PRACTICE &
PROCEDURE

A. State Court Actions

B. Jurisdiction

1. In General

2. Bases of Jurisdiction

C. Venue

1. In General

2. Bases of Venue

3 Forum Non Conveniens

D. Election of Remedies

1. In General

2. Particular Remedies

E. Institution of Action

F. Pleadings and Motions

1. Complaint

2. Answer

3. Motions

G. Removal and Remand

H. Discovery

I. Jury

1. Right To Jury Trial

2. Submission of Issues

J. Evidence

1. In General

2. Plaintiff's Burden
of Proof

3. Defendant's Burden

4. Admissibility

K. Appeal and Review

L. Settlement

The information provided in these pages is intended to be preliminary and informational ONLY. It is not legal advice by Accident-Lawyer-Hawaii nor may it be relied upon as such. The use of the
Accident Lawyer Hawaii
webpages does not establish an attorney-client relationship. This page is Copyright Accident Lawyer Hawaii 1999-2017.