# Mullen v. Daigle Towing Service, LLC

> District Court, E.D. Louisiana · January 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10185140

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** January 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARK MULLEN CIVIL ACTION

v. NO. 19-11954

DAIGLE TOWING SERVICE, L.L.C., ET AL. SECTION "F"

ORDER AND REASONS

Before the Court is the plaintiff’s motion for summary
judgment to compel payment of maintenance and cure. For the
reasons that follow, the motion is DENIED without prejudice as
premature.
Background
This Jones Act litigation arises from a seaman’s claim that
he injured his lower back falling on the deck of a barge sometime
in early December 2018. He did not report the incident or seek
treatment until months later. In February 2019, when he was
diagnosed with cancer, he quit his job to undergo chemotherapy
treatment. It was then -- months after the alleged slip and fall
-- when he first sought treatment for an alleged back injury; since
in remission and undergoing conservative treatment for the alleged
1
employment-related injury, he now seeks to compel his former
employer to pay maintenance and cure.
In 2018, Daigle Towing Service, LLC employed Mark Mullen as

a deckhand aboard the M/V MISS LAURIE. “[S]omewhere in the
beginning of December” of that year -- Mr. Mullen does not recall
the date of the alleged incident1 -- Mr. Mullen alleges that he
slipped and fell on the wet deck of a barge in the tow of the MISS
LAURIE at Tiger Fleet in Baton Rouge, Louisiana.2 He did not
report the incident. Nor did he seek medical attention in the

1 Although he alleges in his complaint that the incident occurred
on December 1, 2018, Mr. Mullen admitted in his deposition that he
does not know which day he was injured.
2 During his deposition, Mr. Mullen indicates that his injury
occurred after the MISS LAURIE had returned six empty barges (owned
by LaFarge North American, Inc.) to Tiger Fleet in Baton Rouge,
Louisiana. Whichever day the incident occurred, it was around 2
o’clock in the morning, Mr. Mullen testified, and Omar Craighead
was the captain on watch; others on the vessel, James Johnson (lead
captain) and Bruce Ronquille (deckhand), were asleep in their
bunks. (Daigle Towing points to the vessel logs to dispute that
these four worked together during the month of December 2018;
counsel for plaintiff concedes that the logs “seem to confirm
defendant’s assertion that captain Johnson, captain Craighead and
deckhand Mullen were never on the vessel together”). Upon arrival
at Tiger Fleet, Mr. Mullen says he began to tie up the lead barge
using a line owned and provided by Lafarge. After he had secured
the line around the bits on the deck of the barge, Mr. Mullen
claims, the line broke. It was when he got out of the broken
line’s way and went to grab a replacement line that he allegedly
slipped and feel backwards. He testified that the deck of the
barge was slippery due to frost as well as a lack of nonskid. He
testified that Omar Craighead, the captain on watch, saw him fall.
According to Mr. Mullen, Capt. Craighead then woke up Ronquille to
assist Mullen with tying off the barges.
2
days (or weeks) after the fall. The onset of back pain, he alleges,
was not immediate.
Mr. Mullen testified that his back began hurting days after

he finished his shift, while he was off the boat staying in a
hotel.3 Notwithstanding his alleged back pain -- while performing
his regular duties, he alleges his back would worsen; while off,
it would improve -- he says he continued to work his regular
hitches (14 days on/7 days off).4
In February 2019, Mr. Mullen says he sought medical attention
for the back pain he attributed to his alleged fall.5 After some

3 Mr. Mullen does not recall whether he disembarked the vessel on
the same day he fell or the following day. By the end of his week
off after the alleged incident, he testified that he decided to
take off another week; he called Daigle Towing to advise that he
was taking an extra week, but he did not report that the extra
week off was due to back pain. Daigle Towing points to the vessel
logs to dispute this: the vessel logs indicate that Mr. Mullen
never took off 14 consecutive days during the month of December
2018. Rather, vessel logs for the MISS LAURIE show that Mr. Mullen
worked from December 5, 2018 through December 11, 2018, then took
seven days off before returning to work from December 19, 2018
through December 31, 2018. Daigle Towing submits rough vessel logs
showing that the MISS LAURIE was on standby on December 1 and part
of December 2, 2018, and that the vessel was not working at Tiger
Fleet (where Mullen says the incident occurred) any time during
December 1, 2, or 3, 2018. Although the vessel logs show that the
MISS LAURIE was working at Tiger Fleet on December 4, 2018, the
logs do not indicate that Mr. Mullen was working.
4 In the plaintiff’s Statement of Uncontested Facts, he states that
he worked “two weeks on and two weeks off” but he testified that
that he worked “14 on and 7 off[.]”
5 Daigle Towing disputes this timing, and submits medical records
indicating that Mr. Mullen did not report back pain during his
visits to East Jefferson General Hospital on February 4 or 25,
3
x-rays and lab work, on February 25, 2019, Mr. Mullen was diagnosed
with cancer, non-Hodgkin’s lymphoma. He stopped working that same
month,6 underwent treatment, and is now in remission. However, he

claims that his back pain persists and prevents him from performing
any type of manual labor.
In May 2019, Mr. Mullen was evaluated by Dr. Pedro Romaguera,
who recommended an MRI of his lumbar spine. Dr. Romaguera also
recommended an orthopedic consultation and determined that Mr.
Mullen was not able to work. Mr. Mullen continues under the care
of Dr. John Logan, an orthopedic surgeon, who has instructed Mullen
not to return to work, recommended that he undergo (and performed)
facet injections at L4-5 and L5-S1 bilaterally, and opined that he
has not reached maximum medical improvement from the alleged work-
related injury.
On May 15, 2019, Mr. Mullen’s attorney, by letter to Daigle

Towing, demanded payment of maintenance and cure benefits. Five

2019; rather, on those dates in February, he reported intermittent
leg pain, lower abdominal pain, flank pain, and groin pain leading
up to his cancer diagnosis. Daigle Towing submits that the medical
records indicate that Mr. Mullen did not report any back pain to
any medical professional until March 21, 2019, during one of his
chemotherapy sessions when he stated that he fell sometime “in the
fall.”
6 In February 2019, Mr. Mullen told Albert Daigle that he was
resigning from Daigle Towing because he had cancer and needed to
undergo chemotherapy treatment. Mr. Mullen did not tell Mr. Daigle
that he had injured his lower back working on the MISS LAURIE.
4
months after the alleged incident occurred, this was the first
notice to Daigle Towing that Mr. Mullen was claiming to have
suffered a work-related injury sometime in “December of 2018.”

Twice more since then, Mr. Mullen’s attorney has demanded
maintenance and cure. Daigle Towing propounded discovery and
launched an investigation into Mr. Mullen’s claim for maintenance
and cure. That investigation is ongoing.
On July 31, 2019, Mullen sued Daigle Towing Service, LLC,
asserting Jones Act negligence, unseaworthiness and seeking to
recover maintenance and cure as well as punitive damages associated
with Jones Act negligence, unseaworthiness, and arbitrary failure
to pay maintenance and cure.7 In November 2019, Mullen was granted
leave to amend his complaint to add Lafarge North America, Inc. as
a defendant; Mullen alleges that Lafarge’s negligence and the
unseaworthiness of its barge contributed to his injury.

To date, Daigle Towing has not paid maintenance or cure. Mr.
Mullen now seeks summary judgment compelling payment.

7 Daigle Towing moved to dismiss Mullen’s punitive damages claims
based on Jones Act negligence and unseaworthiness; on September
11, 2019, the Court granted the motion as unopposed. Daigle Towing
did not move to dismiss Mullen’s claim for punitive damages based
on arbitrary failure to pay maintenance and cure; that claim
remains pending along with the Jones Act negligence and
unseaworthiness claims as well as the claim seeking recovery of
maintenance and cure.
5
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as

to any material fact such that the moving party is entitled to
judgment as a matter of law. No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine
dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion. See id. In this regard,
the non-moving party must do more than simply deny the allegations
raised by the moving party. See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he
must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims. Id. Hearsay evidence and
unsworn documents that cannot be presented in a form that would be
admissible in evidence at trial do not qualify as competent
opposing evidence. Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
"[T]he nonmoving party cannot defeat summary judgment with
6
conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence." Hathaway v. Bazany, 507 F.3d 312, 319
(5th Cir. 2007)(internal quotation marks and citation omitted).

Ultimately, "[i]f the evidence is merely colorable . . . or is not
significantly probative," summary judgment is appropriate.
Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994)(“Unauthenticated documents are
improper as summary judgment evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the non-
moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although
the Court must "resolve factual controversies in favor of the

nonmoving party," it must do so "only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts." Antoine v. First Student, Inc., 713 F.3d
824, 830 (5th Cir. 2013)(internal quotation marks and citation
omitted).

7
II.
A.

“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.” Meche v. Doucet, 777
F.3d 237, 244 (5th Cir. 2015)(quoting Jauch v. Nautical Servs.,
Inc., 470 F.3d 207, 212 (5th Cir. 2006)(citing McCorpen v. Cent.
Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968))).
“’Maintenance is a daily stipend for living expenses,’ whereas
‘cure is the payment of medical expenses.’” Id. (citations
omitted).
Under the general maritime law, a seaman like Mr. Mullen is
entitled to maintenance and cure from his employer, for injuries
incurred or aggravated in the service of the vessel, while
incapacitated, until the seaman reaches maximum medical recovery.
See The Osceola, 189 U.S. 158, 175 (1903), superseded, in part, by
the Jones Act; see also Vaughan v. Atkinson, 369 U.S. 527, 531
(1962). This “broad” obligation arises regardless of either
party’s fault. See Augilar v. Standard Oil Co. of N.J., 318 U.S.
724, 730 (1943); see also Thomas v. Hercules Offshore Servs.,
L.L.C., 713 Fed.Appx. 382, 386 (5th Cir. 2018)(unpublished)

(citing Betram v. Freeport McMoran, Inc., 35 F.3d 1008, 1012 (5th
Cir. 1994)). This expansive remedy is not restricted to injuries
8
or illnesses caused by employment. See 1 Thomas J. Schoenbaum,
ADMIRALTY AND MARITIME LAW § 6-28 (5th ed. 2011)(“[T]he obligation
can arise out of a medical condition such as a health problem, or

prior illness that recurs during the seaman’s employment, or an
injury suffered on shore.”); see also Messier v. Bouchard Transp.,
688 F.3d 78 (2d Cir. 2012)(seaman diagnosed with lymphoma could
recover maintenance and cure where lymphoma, which was not known
to employer or employee during period of employment and which
occurred during service of the ship, but did not present symptoms
until his service had ended). Ambiguities or doubts regarding a
seaman’s entitlement to cure or the date of maximum medical
improvement are resolved in favor of the seaman. Vaughan, 369
U.S. at 532.
Consistent with the near-absolute nature of the right to
maintenance and cure, a seaman’s burden of proof on a maintenance

and cure claim is slight: he need only establish that he was
injured or became ill while in the service of the vessel on which
he was employed as a seaman, without willful misbehavior on his
part. See Aguilar, 318 U.S. at 732; see also 1 Schoenbaum,
ADMIRALTY AND MARITIME LAW § 6-28; see also Fifth Circuit Pattern
Jury Instructions: Civil, § 4.10 (2014 ed.). Defenses to a claim
for maintenance and cure “are few and narrowly applied.” Silmon
v. Can Do II, Inc., 89 F.3d 240, 242 (5th Cir. 1996)(citing
9
Aguilar, 318 U.S. at 730-31). Maintenance and cure may be awarded
“even where the seaman has suffered from an illness pre-existing
his employment.” McCorpen, 396 F.2d at 548.8

When a seaman demands maintenance and cure, an employer is
not obliged to immediately begin payments; rather, it may conduct
a reasonable investigation of the claim and require corroboration
without subjecting itself to compensatory or punitive damages.
Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723, 728 (5th
Cir. 2013); Brown v. Parker Drilling Offshore Corp., 410 F.3d 166,
171 (5th Cir. 2005); Morales v. Garijak, Inc., 829 F.2d 1355, 1358
(5th Cir. 1987), abrogated on other grounds by Guevara v. Maritime
Overseas Corp., 59 F.3d 1496 (5th Cir. 1995), abrogated on other
grounds by Atl. Sounding Co., Inc. v. Townsend, 557 U.S. 404, 424
(2009). In the “escalating scale of liability” for failure to pay
maintenance and cure, endorsed by the Fifth Circuit, the bottom

floor is: “a shipowner who is...liable for maintenance and cure,
but who has been reasonable in denying liability, may be held
liable only for the amount of maintenance and cure.” Morales, 829
F.2d at 1358. Next step up: If, after investigating the claim,
the employer unreasonably rejects it, the employer is liable for

8 Notwithstanding this general principle, a court will deny
maintenance and cure when a seaman “knowingly or fraudulently
conceals” his illness or injury from the shipowner at the time he
was employed. Id.
10
both the maintenance and cure payments it should have made and for
any compensatory damages caused by the unreasonable failure to
pay. See Morales, 829 F.2d at 1358; see also Fifth Circuit Pattern

Jury Instructions: Civil, § 4.10 (2014 ed.). And, finally, the
ceiling: If the employer or vessel owner’s failure to pay
maintenance and cure was not simply unreasonable, but willful and
wanton, then the plaintiff may recover punitive damages. See
Townsend, 557 U.S. at 424; see also Fifth Circuit Pattern Jury
Instructions: Civil, § 4.10 (2014 ed.).
B.
Mr. Mullen seeks summary relief compelling Daigle Towing “to
immediately and retroactively institute maintenance and cure
benefits from the date of first demand.” He claims he was injured
while in the service of the vessel, he has not reached maximum
medical recovery, and he has not received any maintenance or cure

benefits from his employer. Daigle Towing counters that the motion
is at best premature and should be denied where, as here, it is in
the midst of an investigation into whether an accident occurred
and thus there is a genuine dispute as to whether it is obligated
to pay maintenance and cure. The Court agrees.
Mr. Mullen submits that he slipped and fell, injuring his
back in “early December 2018.” To support his narrative, he offers
his affidavit stating that he was so injured. Portions of Mr.
11
Mullen’s deposition transcript submitted by the defendant show
that Mr. Mullen testified that Captain Omar Craighead witnessed
his fall and that Captain James Johnson and deckhand Bruce

Ronquille were on board (but asleep) at the time of the incident.
Mr. Mullen states that he took 14 days off after the alleged
incident. He submits that several months after the incident, a
few months after he resigned from Daigle Towing, he sought
treatment for his back injury, which he related to the alleged
slip and fall in December 2018, and that his physicians have opined
that he has not reached maximum medical improvement. Based on
these facts, he seeks an order compelling Daigle Towing to pay
maintenance and cure.
Daigle Towing submits that Mr. Mullen has failed to carry his
burden to show that he suffered an injury while in the service of
the MISS LAURIE. Daigle Towing identifies evidence in the record

that it says calls into question whether an incident actually
occurred on the MISS LAURIE in December 2018 in which Mullen
suffered a fall and resulting back injury. Daigle Towing offers
evidence it says undermines the credibility of Mullen’s
allegations that he was injured while working on the MISS LAURIE
in early December 2018. It is undisputed that neither Mullen nor
any member of the crew of the MISS LAURIE reported that Mr. Mullen
was injured. Daigle Towing submits vessel logs, which -- rather
12
than corroborate Mr. Mullen’s narrative of the alleged incident -
- indicate that Mr. Mullen did not take 14 days off and was not
part of a crew consisting of Craighead, Johnson, and Ronquille

during the month of December 2018. Medical records submitted by
Daigle Towing indicate that Mr. Mullen did not complain to any
medical provider about back pain related to the alleged “early
December 2018” incident until March 21, 2019, despite seeing
several doctors to report symptoms diagnosed in February 2019 as
lymphoma; and even in so reporting, on March 21, Mr. Mullen stated
he fell “in the fall.” Finally, in a supplemental paper, Daigle
Towing reports that the plaintiff failed to attend an Independent
Medical Evaluation that was scheduled in December 2019.
Summary judgment compelling payment of maintenance and cure
at this time and on this record is patently inappropriate. The
Court may not make credibility determinations. Mr. Mullen claims

that he was injured in December 2018, and Daigle Towing has
submitted evidence creating factual controversies concerning
whether the alleged incident occurred. Viewing the evidence in
the light most favorable to Daigle Towing, Mr. Mullen failed to
report his alleged work-related injury until five months after it
occurred; he cannot recall which day he was injured; the vessel
logs contradict some of the plaintiff’s testimony regarding the
circumstances surrounding the alleged incident; the record
13
indicates that the plaintiff first complained of back pain to a
medical provider more than three months after the alleged incident
and several weeks after he had complained of symptoms diagnosed as

lymphoma. Although the only obstacle to the plaintiff’s
entitlement to maintenance and cure is his ability to carry his
burden to show that an incident occurred in which he was injured
in the service of the MISS LAURIE, factual controversies remain as
to whether he slipped and fell in December 2018 causing him to
injure his back. The plaintiff has not shown entitlement to
judgment as a matter of law on his maintenance and cure claim.
More pertinent to the pending motion to compel payments,
Daigle Towing submits that it is still investigating the alleged
incident and Mr. Mullen’s prior medical and accident history. To
be sure, Daigle Towing is entitled to investigate Mr. Mullen’s
claim that he was injured while in the service of the MISS LAURIE

before paying maintenance and cure benefits. Although Mr. Mullen
suggests that Daigle Towing “has had ample time to investigate,”
he offers no case literature precluding further investigation on
similar facts, or any support for his suggestion that Daigle
Towing’s investigation is unreasonable or unreasonably lax.9

9 The Court has no doubt that Mr. Mullen will pursue the claims he
has alleged for compensatory or punitive damages if he obtains
evidence to support theories of unreasonable or arbitrary
withholding of maintenance and cure.
14
Discovery is in its relatively early stages.!° Genuine
disputes as to certain facts persist and Daigle Towing is entitled
to a reasonable investigation into: (1) whether Mullen sustained
a low back injury in an unreported slip-and-fall incident that
occurred “sometime in the early part of December 2018” while in
the service of a towing vessel; and (2) whether Mullen’s complaints
of lower back pain are causally related to his alleged work-related
injury or are instead attributable to an unrelated pre-existing
injury or his February 2019 diagnosis of non-Hodgkin’s lymphoma
and subsequent treatments.
Accordingly, IT IS ORDERED: that the plaintiff’s motion for
summary judgment to compel payment of maintenance and cure is
DENIED without prejudice as premature.
New Orleans, Louisiana, January 8, 2020

UNITED STATHS DISTRICT JUDGE

10 Daigle Towing submits that its investigation has been delayed
by Mr. Mullen’s failure to show up for an IME set in December 2019.
15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185140. Public record. Not legal advice.