United States Court of Appeals Fifth Circuit F I L E D REVISED NOVEMBER 28, 2006 November 09, 2006 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk _____________________

No. 05-30466 _____________________

JON ANTHONY JAUCH,

Plaintiff-Appellant,

versus

NAUTICAL SERVICES, INC.,

Defendant-Appellee/Cross-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana (2:01-CV-1261) --------------------

Before WIENER and CLEMENT, Circuit Judges, and MARTINEZ, District

Judge.*

PER CURIAM:

Plaintiff-Appellant Jon Anthony Jauch was injured while

working as a seaman aboard a vessel owned and operated by

Defendant-Appellee Nautical Services, Inc. (“Nautical”). Jauch

sued Nautical in federal court seeking maintenance and cure under

general maritime law and damages under the Jones Act. After a

bench trial, the district court (1) denied Jauch’s demand for

maintenance and cure, (2) found Nautical and Jauch equally at fault

* District Judge for the Western District of Texas, sitting by designation. for the accident, (3) awarded Jauch general and special damages,

and (4) denied Jauch prejudgment interest. Jauch contends that the

district court erred in (1) denying him maintenance and cure, (2)

finding him 50% at fault for the accident, (3) awarding him only a

portion of the past medical expenses that he sought, and (4)

denying him prejudgment interest. In its cross-appeal, Nautical

contends that the district court erred in finding it 50% at fault

and awarding Jauch any damages for medical expenses. We conclude

that the district court did not err in denying Jauch maintenance

and cure or apportioning fault equally between the parties;

however, the district court failed to provide sufficiently specific

reasons to allow us to review its award of past medical expenses

and its denial of prejudgment interest. Thus, we affirm the

district court’s order denying maintenance and cure and

apportioning fault, vacate its award of past medical expenses and

its denial of prejudgment interest, and remand to allow the

district court to consider those claims further and to provide more

detailed analysis and reasons for its original decisions or any

others that it may reach on remand.

I. FACTS & PROCEEDINGS

In October 1999, Nautical hired Jauch through a labor

supplier, Crew Services, Inc., to work as a deckhand on its

oceangoing tug, the M/V LA MADONNA. In connection with his

employment application, Jauch was required to undergo a physical

2 examination and complete a medical history questionnaire. On that

questionnaire, Jauch indicated that he had never had back, neck, or

spine trouble or received chiropractic treatment. In fact, Jauch

had injured his back several times, most recently in a work-related

incident six months earlier, after which he sought treatment from

both an orthopedist and a chiropractor and filed a workers’

compensation claim. Jauch also denied ever having any mental

health issues despite his lengthy history of psychiatric treatment.

The physician that conducted Jauch’s pre-employment physical

examination testified that, had Jauch responded truthfully to the

medical history questionnaire, he would not have been cleared to

work until he provided documentation of his earlier injuries and

additional evaluation was conducted. An operations manager for

Nautical also testified that Crew Services typically notifies

Nautical if a potential employee has disclosed a history of

physical or mental problems, at which point Nautical investigates

further before hiring the applicant.

Having no reason to doubt Jauch’s fitness for service, Crew

Services cleared him to join the crew of the M/V LA MADONNA

immediately after he completed his physical examination. One week

later, Jauch was injured while assisting the tug’s captain and two

other crew members move the vessel’s johnboat ashore for

maintenance. The johnboat was lashed to the rail of the vessel’s

second deck and had to be lowered to the first deck before being

moved. Jauch was not specifically instructed as to the proper

3 procedure for lowering the johnboat but attempted to follow the

captain’s lead. He and the captain released the lines securing the

johnboat on the second deck while the other crew members stood on

the first deck waiting to take the boat, which weighed less than

one hundred pounds. At some point, the line Jauch was holding

slipped, and he was pulled forward by the weight of the boat,

injuring his back. Despite reporting some pain shortly after the

incident, Jauch continued to work that day and even did some

weightlifting that afternoon.

In the days following the accident, Jauch’s pain worsened, and

he began to seek medical care. Nautical arranged for Jauch to see

an orthopedist who diagnosed and treated his injury as a

lumbosacral strain. After that orthopedist discharged him as

having reached maximum medical improvement, Jauch continued to

complain of back pain. He sought care from a series of doctors and

eventually underwent lumbar disc fusion surgery in May of 2002.

Jauch filed suit against Nautical in April 2001 in the Eastern

District of Louisiana, asserting claims for maintenance and cure

under general maritime law and for damages under the Jones Act.1

A bench trial was conducted in April 2003, and the court rendered

a judgment in favor of Jauch, awarding him $61,828.84 for past

medical expenses, $10,000 for future medical expenses, $44,619.24

1 Jauch also sought damages for breach of the warranty of seaworthiness under general maritime law, but that claim was denied and is not at issue in this appeal.

4 for past wage loss, $16,094.08 for future wage loss, and $250,000

for general damages. The district court apportioned fault equally

between Jauch and Nautical and declined to award Jauch prejudgment

interest. Accordingly, Nautical was ordered to pay Jauch

$191,271.08.

II. ANALYSIS

A. Issues on Appeal

Jauch contends that the district court erred in four ways:

(1) misapplying the McCorpen rule2 to deny his claim for

maintenance and cure benefits, (2) finding that his failure to take

proper care in lowering the johnboat rendered him 50% at fault for

the accident, (3) awarding him only $61,828.84 for past medical

expenses when he submitted bills at trial totaling $85,165.12, and

(4) denying him prejudgment interest absent a finding of “peculiar

circumstances” justifying its denial.

Nautical cross-appeals, contending that the district court

erred in finding it 50% at fault and awarding Jauch any damages for

medical expenses after having denied his claim for cure.

B. Discussion

1. Maintenance and Cure

a. Standard of Review

2 McCorpen v. Cent. Gulf S.S. Corp.,

(5th Cir. 1968)(discussed fully infra).

5 In addressing a district court’s decision to deny or award

maintenance and cure payments, we review its findings of fact for

clear error and its conclusions of law de novo.3

b. Applicable Law

Maintenance and cure is a contractual form of compensation

afforded by the general maritime law to seamen who fall ill or are

injured while in the service of a vessel.4 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.5 A seaman may recover

maintenance and cure even for injuries or illnesses pre-existing

the seaman’s employment unless that seaman knowingly or

fraudulently concealed his condition from the vessel owner at the

time he was employed.6

In cases involving pre-existing conditions, courts distinguish

between nondisclosure and concealment. If a vessel owner does not

require a pre-employment medical examination or interview, a seaman

must disclose his condition “when in [the seaman’s] own opinion the

shipowner would consider it a matter of importance.”7 If, however,

3 Silmon v. Can Do II, Inc.,

(5th Cir. 1996). 4 McCorpen,

. 5

6

7

.

6 the vessel owner does require the seaman to submit to medical

examination as part of its hiring process, a seaman who

misrepresents or conceals any material medical facts, disclosure of

which is plainly desired, risks forfeiture of his maintenance and

cure benefits.8 Concealment of one’s condition will not preclude

recovery of maintenance and cure under all circumstances. The

concealment defense will only prevail if the vessel owner can show

that (1) the claimant intentionally misrepresented or concealed

medical facts; (2) the non-disclosed facts were material to the

employer's decision to hire the claimant; and (3) a connection

exists between the withheld information and the injury complained

of in the lawsuit.9 If the 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.

c. Conclusion

In this case, Nautical has clearly met the McCorpen test.

Jauch was required to undergo a physical examination and complete

a medical questionnaire specifically designed to elicit information

about past injuries or health problems. Jauch concealed numerous

instances of back injury and mental health problems, disclosure of

which would have either prevented his employment, or at least

8

. 9 Brown v. Parker Drilling Offshore Corp.,

(5th Cir. 2005).

7 delayed it, preventing his having been present on the M/V LA

MADONNA at the time of the accident. Past instances of back

injury, some severe enough to require extensive treatment, are

certainly facts material to Nautical’s decision to hire Jauch as a

deckhand, and the injury Jauch suffered is virtually identical to

the non-disclosed injuries. The district court’s application of

the McCorpen rule to bar Jauch’s recovery of maintenance and cure

in this case is unassailable.

2. Apportionment of Fault

a. Standard of Review

We review a district court’s finding of negligence and

apportionment of fault for clear error.10 The clear error standard

precludes reversal of a district court's findings unless we are

“left with the definite and firm conviction that a mistake has been

committed.”11

b. Applicable Law

Comparative negligence may apply to reduce a seaman’s recovery

on a Jones Act claim.12 A seaman’s contributory negligence will not

10 Verdin v. C & B Boat Co.,

(5th Cir. 1988). 11 Anderson v. City of Bessemer,

(1985). 12 Miles v. Melrose,

(5th Cir. 1989), aff'd sub nom. Miles v. Apex Marine Corp.,

(1990).

8 bar his recovery, but may reduce the amount of damages owed

proportionate to his share of fault.13

c. Conclusion

We need not tarry long here. Both Jauch’s appeal and

Nautical’s cross-appeal on this issue must fail. The district

court had ample evidence to support its conclusion that (1) Jauch

was negligent in failing to remain attentive to his task and

failing to secure his rope while lowering the johnboat, and (2)

Nautical, through the tug’s captain, was negligent in failing to

instruct Jauch on the proper procedure for lowering the boat.

Moreover, the district court had the best opportunity to assess the

relative degree of fault that each party should bear for the

occurrence of the accident. Its decision to apportion fault

equally between Jauch and Nautical was not clearly erroneous.

3. Medical Expenses

a. Standard of Review

A district court's damages award is a finding of fact, which

this court reviews for clear error.14 The conclusions of law

underlying the award are reviewed de novo.15

b. Nautical’s Cross-Appeal

13

14 Nat'l Hispanic Circus, Inc. v. Rex Trucking, Inc.,

, 552 (5th Cir. 2005) 15 Id.

9 We first address Nautical’s contention that, because the

district court denied Jauch’s claim for maintenance and cure, it

erred in awarding him damages for past medical expenses. Nautical

suggests that allowing Jauch to recover damages for past medical

expenses based on Nautical’s negligence would allow him “to get

through the back door (special damage award), what he could not get

through the front door (cure).” It is well-settled, however, that

“the seaman's right to receive, and the shipowner's duty to pay,

maintenance and cure is independent of any other source of recovery

for the seaman (e.g., recovery for Jones Act claims).”16

Accordingly, the district court’s denial of Jauch’s claim for

maintenance and cure had no legal effect on his entitlement to

recover Jones Act damages for his past medical expenses.

c. Computation of the Award

Jauch contends that the district court erred in awarding him

only a portion ($61,828.84) of the total amount ($85,165.12)17 of

medical expenses that he incurred as a result of the accident. In

its order, the district court did not explain how it calculated

Jauch’s medical expenses. It appears to have adopted the figure

16 Bertram v. Freeport McMoran, Inc.,

(5th Cir. 1994).

17 On appeal, Jauch asserts that as of April 12, 2004, the date that the parties’ post-trial memoranda were filed, he had actually incurred over $93,000 in medical bills. Arriving at an exact figure is not necessary to resolve this appeal, but we will use the amount listed as the total on the summary of the bills submitted into evidence at trial.

10 proposed by Nautical in its post-trial memorandum, but it did so

without expressly crediting Nautical’s justifications for

disallowing a portion of the amount Jauch sought. Had Nautical

presented a more thorough accounting of Jauch’s medical expenses,

we would be justified in attributing that calculus to the district

court, just as we would have done had Jauch been awarded the full

amount that he sought without comment by the district court.

Nautical’s post-trial memorandum, however, is insufficient for

this purpose. In it, Nautical mentions two of Jauch’s bills that

it assumes were paid by Nautical, but focuses primarily on the

expenses related to Jauch’s back surgery. Nautical argues that

Jauch should only recover the amount that Medicare actually paid

for the surgery because it found no evidence that the surgeon had

attempted to collect the balance of the bill from Jauch. After

calculating the difference between the two amounts, Nautical simply

asserts that “the true measure of plaintiff’s total medical bills

would be $61,828.84.” Even though Nautical’s proffered rationale

may provide an appropriate basis for calculating an award of

medical expenses, in this case, the numbers simply do not add up.

Merely subtracting (1) the difference in the amount Medicare paid

for Jauch’s surgery and the amount the surgeon charged, and (2) the

two bills allegedly paid by Nautical from the total amount of

medical expenses Jauch sought, does not produce the figure proposed

by Nautical and awarded by the district court. Whether the

Medicare-payment rationale was applied to other bills as well, or

11 some other amounts were disallowed, is simply unclear from the

record. Thus, a review of this award for error is not possible.

A further round of briefing and a more detailed finding by the

district court should resolve this matter easily enough.

4. Pre-Judgment Interest

a. Standard of Review

A district court’s ruling on prejudgment interest is reviewed

for abuse of discretion.18

b. Applicable Law

Prejudgment interest is compensation allowed by law as

additional damages for lost use of the money due as damages during

the lapse of time between the accrual of the claim and the date of

judgment.19 Prejudgment interest is not available on future

damages.20 Courts have generally recognized that the award of

prejudgment interest may be appropriate in Jones Act cases tried in

admiralty.21 Indeed, it is generally accepted that, under maritime

law, the award of prejudgment interest is “well-nigh automatic.”22

18 CenterPoint Energy Houston Elec., L.L.C. v. Harris County Toll Rd. Auth.,

(5th Cir. 2006). 19 Kona Tech. Corp. v. S. Pac. Transp. Co.,

(5th Cir. 2000). 20 Williams v. Reading & Bates Drilling Co.,

(5th Cir. 1985). 21 Domangue v. Penrod Drilling Co.,

(5th Cir. 1984). 22 Reeled Tubing, Inc. v. M/V CHAD G,

(5th Cir. 1986).

12 Such an award, however, has never been actually automatic.23 As the

Supreme Court noted in The Scotland, the “allowance of interest on

damages is not an absolute right. Whether it ought or ought not to

be allowed depends upon the circumstances of each case, and rests

very much in the discretion of the tribunal which has to pass upon

the subject . . . .”24 Particular circumstances will justify a

district court’s denial of prejudgment interest, chief among these

being a plaintiff's responsibility for “undue delay in prosecuting

the lawsuit.”25 Other circumstances may appropriately be invoked

as warranted by the facts of particular cases.

c. Conclusion

Jauch contends that no peculiar circumstances existed that

would warrant the district court’s denial of prejudgment interest

in this case. Nautical responds that Jauch was himself responsible

for any delay in his recovery because he waited a year and a half

to file suit and had the trial continued on three separate

occasions. The district court, however, gave no reasons for its

denial of prejudgment interest, stating simply that “the Court

exercises its discretion to not award prejudgment interest.” Thus,

23 City of Milwaukee v. Cement Div., Nat. Gypsum Co.,

(1995).

24

, 518-519 (1886). 25 General Motors Corp. v. Devex Corp.,

(1983).

13 we cannot conduct the required review and must remand for a more

detailed analysis.26

III. CONCLUSION

For these reasons, we (1) AFFIRM the district court’s order

denying Jauch’s claim for maintenance and cure and apportioning

fault equally between Jauch and Nautical, (2) VACATE the award of

past medical expenses and the denial of prejudgment interest and

REMAND to allow the district court to consider these claims further

and to provide more detailed analysis and reasons for such

decisions as it may reach.

26 See CenterPoint,

(district court’s summary denial of prejudgment interest and attorney’s fees not reviewable for abuse of discretion).

14