Barnes v. Sea Hawaii Rafting, LLC
Barnes v. Sea Hawaii Rafting, LLC
Opinion of the Court
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT FOR PAYMENT OF MAINTENANCE
For the following reasons, the Court DENIES Plaintiff Chad Berry Barnes’s Motion for Summary Judgment for Payment of Maintenance.
FACTUAL BACKGROUND
This matter arises under admiralty law. Plaintiff Chad Berry Barnes alleges that he was employed by Defendant Kris Henry and/or Defendant Sea Hawaii Rafting as a crew member on the vessel M/V TE-HANI. (Compl. ¶¶ 14-15.) On July 3, 2012, Barnes was injured when an explosion occurred under the deck of the boat as Barnes was starting its engine and helping to launch it into the Honokohau Small Boat Harbor in Kailua-Kona, Hawaii. {Id. ¶¶ 12-13.) Barnes alleges that he suffered severe physical and emotional injuries as a result of the accident that require “ongoing medical treatment, loss of time from work, and may have left him permanently disabled.” (Id. ¶¶ 16-17.)
PROCEDURAL BACKGROUND
On January 1, 2013, Barnes filed a Verified Complaint against Sea Hawaii Rafting, LLC, Kris Henry, and a number of Doe defendants, in personum, and M/V TEHANI, HA-1629 CP, and her engines, equipment, tackle, stores, furnishings, cargo and freight, in rem (together, “Defendants”). (Doc. No. 1 (“Compl.”).) In his complaint, Barnes brings the following claims: (1) negligence under the Jones Act, 46 U.S.C. § 688, against the in per-sonam Defendants (Count I); (2) unseaworthiness as against the M/V TEHANI (Count II); (3) maintenance, cure, and wages under general maritime law (Count III); (4) compensation and recovery for negligence pursuant to the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905, against the in personam and in rem Defendants (Counts IV-VII); (5) individual liability of Defendant Kris Henry and the Doe Defendants for the negligence of Sea Hawaii Rafting, pursuant to a theory of “piercing the veil of limited liability” (Count VII); and (6) intentional and/or negligent infliction of emotional distress as against all Defendants (Count VIII). (Id. ¶¶ 23-71.) Barnes seeks compensatory damages, punitive damages, and recovery of attorneys’ fees.
On August 20, 2013, Barnes filed a Motion for Summary Judgment for Payment of Maintenance and Cure, asking for judgment as to Count III of his complaint. (Doc. No. 25.) On November 15, 2013, 983 F.Supp.2d 1208 (D.Hawai’i 2013), the
On January 27, 2014, Barnes filed the instant Motion for Summary Judgment, supported by a concise statement of facts and a number of exhibits. (Doc. Nos. 58, 59.) Defendants filed their memorandum in opposition, also supported by a concise statement of facts and numerous exhibits, on March 24, 2014. (Doc. Nos. 68, 69.) Barnes filed his reply, with exhibits attached, on April 1, 2014. (Doc. No. 71.)
A hearing on the motion was held on April 14, 2014.
STANDARD
Summary judgment is appropriate when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If that burden has been met, the nonmoving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party. Id. at 587,106 S.Ct. 1348.
In supporting a factual position, a party must “eit[e] to particular parts of materials in the record ... or show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 585, 106 S.Ct. 1348. “[T]he requirement is that there be no genuine issue of material fact.... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in original). Also,
DISCUSSION
In the instant motion, Barnes seeks summary judgment solely as to the proper amount of maintenance. Barnes notes that the Court, in its 11/15/13 Order, found that Barnes had proffered sufficient evidence to show that his actual expenses are $2,050 per month, or approximately $68 per day, and that Barnes is entitled to maintenance in the amount of his actual expenses up to the reasonable amount for his locality. (Mot. at 5; see also 11/15/13 Order at 1215, 1216, at *5, *6.) With the instant motion, therefore, Barnes seeks to demonstrate the reasonable cost of living in his locality. Relying upon two affidavits (Barnes’s own affidavit regarding his investigation of the cost of food and lodging in Kailua-Kona, and the affidavit of Sarah Ellen Gray, a single seaman living at the Honolulu Sailor’s Home), Barnes argues that the reasonable cost of living for a seaman in Kailua-Kona is between $50 and $57 per day. (Mot. at 7.) Barnes therefore requests that the Court award him maintenance payments of $54 per day from the date of his injury until he reaches maximum medical cure. (Reply at 14.)
I. Maintenance and Cure
When a seaman is injured in the service of his vessel, the shipowner has an obligation to pay maintenance (room and board), cure (medical expenses), and unearned wages. Vaughan v. Atkinson, 369 U.S. 527, 531-33, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Lipscomb v. Foss Maritime Co., 83 F.3d 1106, 1109 (9th Cir. 1996). The entitlement to maintenance and cure continues until the seaman reaches “maximum cure” — a recovery as complete as the injury allows. Permanente S.S. Corp. v. Martinez, 369 F.2d 297, 298-99 (9th Cir. 1966) (stating that the obligation to furnish maintenance and cure “continues until the seaman achieves maximum recovery; that is, until the seaman is well or his condition is found to be incurable.”); see also Berg v. Fourth Shipmor Assocs., 82 F.3d 307, 309 (9th Cir. 1996) (same). When a seaman is injured in the service of a vessel, the employer must pay maintenance and cure even where the employer is not at fault. Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107 (1943); Crooks v. United States, 459 F.2d 631, 632 (9th Cir. 1972).
A plaintiffs burden of proof on a maintenance and cure claim is slight: he need only establish that he was injured or became ill while “subject to the call of duty
This Court has already found that Barnes is entitled to payment of maintenance from the date of his accident until he reaches maximum cure. (11/15/13 Order at 1218, at *8.) Defendants nevertheless argue that Barnes is not entitled to maintenance payments for times during which he has not incurred any food or lodging costs. Defendants note that Barnes has stated that he has been living on the charity of friends for the past year. (Opp’n at 11.) This statement may not, however, be used as a basis for denying Barnes maintenance payments. Generally, “if the seaman’s actual expenses are not sufficient to afford him food and lodging that are reasonably adequate, the court should award maintenance sufficient to provide reasonable food and lodging, even if the award exceeds the seaman’s actual costs.” Hall, 242 F.3d at 587. In other words, if a seaman’s actual expenses for rent are quite low because he cannot afford adequate housing, as appears to be the case here, this does not mean that he is not entitled to a reasonable amount of maintenance. This is in keeping with the courts’ traditional solicitude for the “poor, friendless and improvident” seaman. See Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 82 L.Ed. 993 (1938).
Moreover, while it is true that a seaman is only entitled to the reasonable cost of food and lodging where he has actually incurred the expense, “when the seaman has made ‘an expressed intention’ to pay for lodging and food, even if the obligation is not legally enforceable, the seaman may recover maintenance.” Hall, 242 F.3d at 588. Here, even for those periods of time during which he has been “couch surfing,” or relying upon the charity of his friends and family to provide for his food and lodging, Barnes has stated that he intends to repay this charity when he is able. In an affidavit attached to his reply in support of the instant motion, Barnes states that “[although I have stated that I have been sleeping on couches due to the charity of friends, I did not mean that I am not obligated to pay them back for their help .... we have all agreed that I must pay them back for their ‘charity’ when I am able to do so.”
The Court therefore turns to an analysis of the issue before it in the instant motion: the proper rate of maintenance.
As this Court stated in its 11/15/13 Order, when determining maintenance, the Court must look at both reasonable expenses and Barnes’s actual expenses. Specifically, “[a] seaman is entitled to the reasonable cost of food and lodging, provided he has incurred the expense.” Hall v. Noble Drilling, Inc., 242 F.3d 582, 587 (5th Cir. 2001). Determining the maintenance award involves three steps:
First, the court must estimate two amounts: the plaintiff seaman’s actual costs of food and lodging; and the reasonable cost of food and lodging for a single seaman in the locality of the plaintiff. In determining the reasonable costs of food and lodging, the court may consider evidence in the form of the seaman’s actual costs, evidence of reasonable costs in the locality or region, union contracts stipulating a rate of maintenance or per diem payments for shoreside food or lodging while in the service of a vessel, and maintenance rates awarded in other cases for seamen in the same region.
Second, the court must compare the seaman’s actual expenses to reasonable expenses. If actual expenses exceed reasonable expenses, the court should award reasonable expenses. Otherwise, the court should award actual expenses. Thus, the general rale is that seamen are entitled to maintenance in the amount of their actual expenses on food and lodging up to the reasonable amount for their locality.
Third, there is one exception to this rule that the court must consider. If the court concludes that the plaintiffs actual expenses were inadequate to provide him with reasonable food and lodging, the plaintiff is entitled to the amount that the court has determined is the reasonable cost of food and lodging. This insures that the plaintiffs inability to pay for food and lodging in the absence of maintenance payments does not prevent him from recovering enough to afford himself reasonable sustenance and shelter.
Id. at 590.
Here, Barnes argues that the maintenance rate should be set at $54 per day. (Mot. at 7; Reply at 14.) Defendants argue that Barnes has failed to establish either his actual expenses, or the reasonable expenses in his locality.
First, as to Barnes’s actual expenses, this Court found in its 11/15/13 Order that Barnes produced sufficient evidence that they are $2,050 per month, or approximately $68 a day.
With respect to reasonable expenses, as an initial matter the Court notes that, surprisingly, neither party has produced any expert testimony. Without offering any expert testimony of their own, Defendants argue that the affidavits Barnes provides in support of his claims regarding the cost of living in his locale (one by Barnes himself and one by a fellow seaman residing in Honolulu) are insufficient to establish a reasonable maintenance rate. While it is true that the affidavits are far from the most probative evidence conceivable regarding the reasonable cost of living in Barnes’s locale, they are nevertheless relevant and the Court will consider them. See Morel v. Sabine Towing & Transp. Co., Inc., 669 F.2d 345, 347 (5th Cir. 1982) (acknowledging that a seaman’s own testimony regarding the reasonable cost of room and board in his locale was not “the most probative evidence one might conceive[,]” but was nevertheless admissible and relevant); see also Yelverton, 782 F.2d at 558 (stating that a seaman’s “own testimony as to reasonable cost of room and board in the community where he is living is sufficient to support an award.”)
First, Barnes offers the affidavit of Sarah Ellen Gray, a seaman residing at the Honolulu Sailor’s Home in Honolulu.
Taking the two affidavits together, and including only those expenses allowable in maintenance, it appears Barnes’s evidence suggests that the reasonable cost of food is between $21 and $31 per day, and that the reasonable cost of rent is between $22 and $30 per day. This would indicate that the reasonable maintenance rate is between $43 and $61 per day.
Defendants, on the other hand, argue that, contrary to Barnes’s assertions, a reasonable maintenance rate for Barnes’s locale is between $30 and $33 per day. (Opp’n at 21-22.) Further, Defendants state that as of November 13, 2013
Defendants assert that Barnes’s proffered evidence as to the reasonable costs for food and rent in his locale is contradicted by Defendants’ own evidence and, thus, summary judgment is inappropriate. (Opp’n at 12-13.) With respect to the cost of rent, Defendants submit evidence of rentals with rents ranging from $360 to $650 per month, or $12 to $22 per day. (Id. Exs. 5 & 6.) Barnes counters that the rentals Defendants submit that are less
As to the cost of food, Defendants argue that Barnes’s own testimony as to the reasonable cost of food in his area, along with his proffered evidence from one Safeway store, is insufficient to support a finding as to the reasonable cost of food because it is not representative of costs generally, and merely reflects one store’s prices on one given day. (Opp’n at 14-15.) Defendants further argue that Barnes’s claim that the reasonable cost of food is between $21 and $31 per day is contradicted by the United States Department of Agriculture (“USDA”), Center for Nutrition Policy and Promotion statistics regarding the costs for food for a single male Barnes’s age living in Hawaii. (Id.) Specifically, Defendants attach to their opposition the Official USDA Alaska and Hawaii Thrifty Food Plans
In sum, Defendants proffer evidence that the reasonable cost of food for Barnes in his locality
CONCLUSION
For the foregoing reasons, the Court DENIES Barnes’s Motion for Summary Judgment for Payment of Maintenance.
IT IS SO ORDERED.
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
For the following reasons, the Court DENIES Plaintiff Chad Barry Barnes’s Motion for Reconsideration of Order Denying Plaintiffs Motion for Summary Judgment for Payment of Maintenance.
FACTUAL AND PROCEDURAL BACKGROUND
This matter arises under admiralty law. Plaintiff alleges that he was injured on July 3, 2012 while employed by Defendant Kris Henry and Defendant Sea Hawaii Rafting as a crew member on the vessel MTV TEHANI. (Compl. ¶¶ 14-15; Mot. at 2, Exs. A & C.) On January 1, 2013, Plaintiff filed a Verified Complaint against Sea Hawaii Rafting, LLC, Kris Henry, and a number of Doe defendants, in personum, and the M/V TEHANI, HA-1629 CP, and her engines, equipment, tackle, stores, furnishings, cargo, and freight, in rem (collectively, “Defendants”). (Doc. No. 1.)
On August 20, 2013, 'Plaintiff filed a Motion for Summary Judgment for Payment of Maintenance and Cure, seeking judgment as to Plaintiffs claim for payment of maintenance and cure pursuant to general maritime law. (Doc. No. 25.) On November 15, 2013, this Court issued its Order Granting in Part and Denying in Part Plaintiffs Motion for Summary Judgment for Payment of Maintenance and Cure (“11/15/13 Order”). (Doc. No. 44.) In the 11/15/13 Order, the Court held that Plaintiff was entitled as a matter of law to maintenance and cure, but that Plaintiff had failed to put forth sufficient evidence as to the proper amount of the award. (Id. at 9-10.) Plaintiff filed a motion for reconsideration of the 11/15/13 Order on November 25, 2013, which the Court denied on December 13, 2013. (Doc. Nos. 48, 51.)
On January 27, 2014, Plaintiff filed a second Motion for Summary Judgment for Payment of Maintenance, seeking judgment solely as to Plaintiffs claim for payment of maintenance. (Doc. No. 58.) On April 15, 2014, this Court issued its Order Denying Plaintiffs Motion for Summary Judgment for Payment of Maintenance. (Doc. No. 77 (“4/15/14 Order”).) In the 4/15/14 Order, the Court found that questions of fact regarding the reasonable cost of living for a single seaman in Plaintiffs locality precluded entry of judgment as to the proper amount of maintenance. (Id. at 18-19.)
On April 16, 2014, Plaintiff filed the instant Motion for Reconsideration, asking the Court to reconsider its 4/15/14 Order. (Doc. No. 78 (“Mot.”).)
STANDARD
In the Ninth Circuit, a successful motion for reconsideration must accomplish two goals. First, it must demonstrate some reason why the court should reconsider its prior decision. Na Mamo O’Aha 'Ino v. Galiher, 60 F.Supp.2d 1058, 1059 (D.Haw. 1999). Second, it must “set
Mere disagreement with a previous order is an insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp., 689 F.Supp. 1572 (D.Haw. 1988). “Whether or not to grant reconsideration is committed to the sound discretion of the court.” Navajo Nation v. Confederated Tribes and Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (citation omitted).
DISCUSSION
In the instant motion, Plaintiff argues that the Court should reconsider its 4/15/14 Order and set a maintenance rate of $23.99 per day in order to “correct clear error and prevent manifest injustice.” (Mot. at 2, 5.) Specifically, Plaintiff argues that the Court erred when it failed to determine that the reasonable cost of living for a single seaman in Plaintiffs locality is at least $23.99. (See Mot. at 5.) Plaintiff appears to assert that, because this figure is below the Defendants’ lowest estimate, there is no disagreement that it represents the lowest reasonable cost of living for Plaintiff. (Id.) Plaintiff states that “[t]he parties do not dispute that the reasonable cost of living for a seaman in Kailua-Kona is at least $23.99 per day.” (Id.) This claim is belied, however, by both of the parties’ filings made in association with Plaintiffs second motion for summary judgment, as well as the Defendants’ opposition to the instant motion for reconsideration. (See PL’s Mem. in Supp. of Mot. for Summary Judgment at 7 (arguing that the reasonable cost of living for a seaman in Kailua-Kona is between $50 and $57 per day); Def.’s Opp’n to Mot. for Summary Judgment at 21-22 (arguing that the reasonable cost of living is between $30 and $33 per day); Def.’s Opp’n to Mot. for Recon. at 3 (stating that “Defendants have not agreed to a rate less than Defendants’ ‘lowest estimate of the reasonable cost’ because they agreed to pay $30.00/day in maintenance”). Prior to the instant motion, neither of the parties had ever argued that the reasonable cost of living for a single seaman in Kailua-Kona is $23.99. Indeed, Plaintiff himself acknowledges that the Court would need to “disregard Plaintiffs entire range of estimated cost of living [provided in support of his motion for summary judgment] as being disputed factually” in order to arrive at a judgment in favor of Plaintiff for $23.99 per day in maintenance. (Mot. at 5.)
Moreover, it is inappropriate for Plaintiff to argue here, for the first time, that $23.99 per day represents the minimum reasonable cost of living in his locale. A reconsideration motion may not be used to raise arguments or present
Plaintiff nevertheless argues that the Court should grant the instant motion because his “living conditions are manifestly unjust.” (Mot. at 5-6.) While the Court is sympathetic to Plaintiffs circumstances, there is simply no legal basis upon which to grant Plaintiffs motion. Plaintiff asks this Court to disregard the evidence properly before it on Plaintiffs summary judgment motion and set an arbitrary maintenance rate based upon Plaintiffs unsubstantiated claim that it represents the minimum reasonable cost of living in Plaintiffs locale. As the Court correctly found in its 4/15/14 Order, issues of fact exist as to the proper rate of maintenance. Plaintiff has raised no arguments suggesting that this finding was in error.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiffs Motion for Reconsideration of Order Denying Plaintiffs Motion for Summary Judgment for Payment of Maintenance.
IT IS SO ORDERED.
. The facts as recited in this Order are for the purpose of disposing of the current motion and are not to be construed as findings of fact that the parties may rely on in future proceedings.
. In the 11/15/13 Order, the Court urged the parties to engage in a settlement conference in an effort to reach a stipulation with respect to the amount of maintenance payments. (Id. at 1216 n. 9, at *6 n. 9.) Defendants have offered to stipulate to $30 per day without prejudice to a future determination as to the fairness of that amount. (Defendants’ Concise Statement of Facts (“CSF”), Ex. 1.) Barnes has apparently declined this offer.
. On November 22, 2013, Barnes filed a Motion for Reconsideration of the 11/15/13 Order. (Doc. No. 45.) The Court denied the motion on December 13, 2013. (Doc. No. 51.)
. The Court notes that it is an open question in the Ninth Circuit whether a pretrial motion for maintenance and cure should be viewed under the summary judgment standard or through an approach that takes into account the flexibility that admiralty law affords to the Court and the deference afforded to seamen. See, e.g., Best v. Pasha Haw. Transport Lines, LLC, 2008 WL 1968334, at *1 (D.Haw. May 6, 2008) (discussing the Ninth Circuit’s inconsistent treatment of such motions); Buenbrazo v. Ocean Alaska, LLC, 2007 WL 3165523, at *1 (W.D.Wash. Oct. 24, 2007) (noting the "obvious tension” between summary judgment and resolving all doubts in favor of the seaman). The Court need not determine which standard of review is appropriate here, however, as even under the more flexible standard viewing the facts in the light most favorable to Barnes, the existence of genuine issues of fact preclude judgment in his favor.
. Similarly, Barnes stated in the June 11, 2013 letter attached as Exhibit D to his first Motion for Summary Judgment for Payment of Maintenance and Cure that his father has been subsidizing his rent each month "with the agreement all monies will be paid back to him.” (Doc. No. 25, Ex. D at 1.)
. Barnes’s total claimed eligible monthly expenses included $500 for rent, $200 for utilities, and $1,350 ($45/day X 30 days) for food, for a total of $2,050, or approximately $68 per day ($2,050 divided by 30 days). (See 11/14/13 Order at 11 n. 7.)
.Defendants also argue that Barnes has made inconsistent statements as to his actual expenses. (Opp’n at 11-12.) This argument appears, however, to misunderstand the purpose of Barnes's affidavit in the instant motion. Whereas the affidavit and exhibits attached to his prior motion for summary judgment were made for the purpose of establishing Barnes’s actual costs, (see Doc. No. 25, Barnes Aff. & Ex. D), Barnes’s affidavit here is made for the purpose of establishing the reasonable cost of living in Barnes’s locale. As such, the fact that there is some discrepancy between the figures in the two statements is unremarkable.
. The Court notes that both parties argue that there may be differences in the cost of living between Honolulu and Kailua-Kona (see Reply at 8; Opp'n at 16); however, neither party provides any evidence to support such an assertion or clarify what those differences may be.
. Ms. Gray states that these rates are set to increase to $25 and $35 per day, respectively, at some point in the near future. (Id. ¶ 9.)
. Ms. Gray also lists a number of expenses that are not allowable maintenance expenses, including toiletries, clothing, transportation, and telephone service. See Hall, 242 F.3d at 587 n. 17.
. In his affidavit, Barnes includes a number of expenses that are not allowable maintenance expenses, including laundry, clothing, and telephone service. See Hall, 242 F.3d at 587 n. 17.
. Puzzlingly, in his Reply, Barnes states that "[t]he cost of living asserted by the Plaintiff is, by necessity, hypothetical.” (Reply at 10.) Nevertheless, it appears Barnes has provided some evidence to support his claims regarding the cost of living.
.It appears Defendants actually sent the first payment to Barnes on March 10, 2014; however, the payment covered the period of November 13, 2013 to March 10, 2014. (Opp’n, Ex. 8.)
. The USDA's Thrifty Food Plan (''TFP") is the cheapest of the USDA’s four model food plans specifying types and amounts of foods that provide a nutritious diet at different cost points. The TFP is used to set benefit levels for the Supplemental Nutrition Assistance Program (formerly known as the food stamp program). USDA, USDA Food Plans: Cost of Food, http://www.cnpp.usda.gov/USDAFood PlansCostofFood.htm.
. The Court notes that the USDA cost estimates are for a single male of Barnes's age living in the State of Hawaii, and do not appear to address whether the cost of living in Kailua-Kona may be more or less than the average cost of living for the state as a whole. As noted above, both parties make arguments regarding differences between the cost of living in Kailua-Kona and Honolulu; however, neither party has produced any evidence establishing what those differences may be.
. Pursuant to Local Rule 7.2(e), the Court decided the instant motion without a hearing.
. The District of Hawaii has implemented these standards in Local Rule 60.1, which states, in relevant part:
Motions for reconsideration of interlocutory orders may be brought only upon the following grounds:
(a)Discovery of new material facts not previously available;
(b) Intervening change in law;
(c) Manifest error of law or fact. Motions asserted under Subsection (c) of this rule must be filed and served not more than fourteen (14) days after the court's written order is filed.
D. Haw. Local Rule 60.1.
. The Court notes that it suggested during the November 12, 2013 hearing on Plaintiff’s first motion for summary judgment that the parties consider stipulating to payments of $30 per day in maintenance without prejudice to a future determination as to the reasonableness of that amount. It appears that the parties were unable to reach such an agreement. Nevertheless, Defendants have evidently made two voluntary maintenance payments of $962.83 each, which Defendants assert are based on their calculation of Plaintiff’s reasonable food costs for the period of July 3, 2012 to October 18, 2013, based on a rate of approximately $12.49 per day. (See Mot. at 6; Opp'n at 9; Def.’s Opp'n to Pl.’s Mot. for Summary Judgment for Payment of Maintenance (Doc. No. 68) at 18, 23.) Defendants contend that they are financially unable to pay the full amount to which Plaintiff may be entitled from the time of his injury in a single, lump-sum payment, but that they are making installment payments for Plaintiff's food costs on a monthly basis. Further, Defendants state that, once they receive Plaintiff's not-fit-for-duty slip, they will begin making payments in the amount of $30 per day for Plaintiff's food and lodging costs for the period of November 13, 2013 until Plaintiff reaches maximum medical improvement. (Def.’s Opp’n to Pl.'s Mot. for Summary Judgment for Payment of Maintenance (Doc. No. 68) at 20-23.) Plaintiff, on the other hand, is now seeking in the instant motion for reconsideration a judgment in the amount of $13,072.50 based on his computation using a maintenance rate (apparently for food and lodging) of $23.99 per day, with the amount of the judgment "subject to modification before or at trial." (Mot. at 9.) In view of the foregoing, the Court urges the parties to meet with Magistrate Judge Puglisi in an effort to resolve this dispute. The Court is mindful of the policy in favor of prompt payment of maintenance in admiralty cases in light of the traditional solicitude shown injured seamen by the Supreme Court, and that the Plaintiff's burden in demonstrating his cost of living is "feather light.” Nevertheless, a motion for reconsideration is simply an improper vehicle for Plaintiff to seek judgment for the first time in the amount of $23.99 per day in maintenance (without prejudice to further adjustment at or before trial). The Court notes that this amount is significantly lower than the $30 per day that Defendants are willing to pay (but apparently without further modification). To the extent the parties are unable to reach a resolution with Magistrate Judge Puglisi on this matter, the Court will entertain a further summary judgment motion by either party on the issue of the proper amount of maintenance.
Reference
- Full Case Name
- Chad Barry BARNES v. SEA HAWAII RAFTING, LLC, Kris Henry, M/V TEHANI
- Cited By
- 2 cases
- Status
- Published