“Recoverable items include loss of support from [decedent]’s past and future earnings; loss of [decedent]’s household services; loss of parental nurture and guidance of his minor children until the age of majority; and recovery for [decedent]’s predeath pain and suffering.”
How later courts described this case
- “Recoverable items include loss of support from [decedent]’s past and future earnings; loss of [decedent]’s household services; loss of parental nurture and guidance of his minor children until the age of majority; and recovery for [decedent]’s predeath pain and suffering.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GRACE SCOTT CIVIL ACTION
VERSUS NO. 20-2692
WESTBANK FISHING, LLC SECTION: “G”
ORDER AND REASONS
In this litigation, Plaintiff Grace Scott (“Plaintiff”) bring claims individually and on behalf
of her deceased husband, Robert Scott (“Scott”), against Defendant Westbank Fishing, LLC
(“Defendant”).1 Plaintiff alleges that Scott was employed by Defendant as a chef aboard the vessel
F/V KITTIWAKE, and died as a result of complications from COVID-19, which he contracted
aboard the F/V KITTIWAKE.2 Pending before the Court is Defendant’s Motion for Partial
Summary Judgment.3 Considering the motion, the memoranda in support and in opposition, the
record, and the applicable law, the Court grants the motion in part and denies the motion in part.
I. Background
Plaintiff alleges that her husband Robert Scott was employed by Defendant as a chef aboard
the F/V KITTIWAKE, a vessel owned and operated by Defendant.4 Plaintiff alleges that in July
2020, another crew member aboard the F/V KITTIWAKE began showing symptoms consistent
1 Rec. Doc. 1.
2 Id. at 4.
3 Rec. Doc. 28.
4 Rec. Doc. 1.
1
with COVID-19, and that the crew member remained working “without proper or adequate
quarantine measures in place” for at least a day before the F/V KITTIWAKE returned to shore.5
Plaintiff further alleges that two days later, a crew member from an unknown vessel (“Vessel X”)
joined the crew of the F/V KITTIWAKE to work alongside Scott.6 However, Plaintiff alleges that
Vessel X had recently returned to shore to seek medical care for a different crew member who was
also demonstrating symptoms consistent with COVID-19.7
Plaintiff alleges that on July 12, 2020, Scott tested positive for COVID-19, and was
hospitalized and placed on a ventilator days later.8 Plaintiff alleges that Scott’s kidneys began to
fail and he underwent a surgery for the insertion of a dialysis catheter.9 Nevertheless, Plaintiff
avers that Scott’s heart and lungs began to fail, and he later died while being transferred to
University Medical Center in New Orleans for further treatment.10 Plaintiff asserts claims for
negligence under the Jones Act as well as unseaworthiness under general maritime law.11
5 Id.
6 Id. at 4.
7 Id.
8 Id.
9 Id.
10 Id.
11 Id. at 5–6.
2
On May 17, 2022, Defendant filed the instant motion for partial summary judgment.12 On
June 21, 2022, Plaintiff opposed the motion.13 On June 29, 2022, with leave of Court, Defendant
filed a reply.14
II. Parties’ Arguments
A. Defendant’s Arguments in Support of the Motion for Summary Judgment
Defendant argues that it is entitled to summary judgment on Plaintiff’s request for damages
in the form of (1) past medical expenses, (2) past maintenance, cure, and found, (3) funeral and
burial expenses, and (4) nonpecuniary damages.15 First, Defendant argues that past medical
expenses are not available because there is no evidence that Plaintiff is liable for any costs incurred
as a result of Scott’s COVID-19 diagnosis or treatment.16 Defendant argues that in discovery,
Plaintiff represented that she had no “records, receipts, invoices, or other materials evidencing any
charges or expenses incurred” as a result of Scott’s death, and that Plaintiff never supplemented
this response with any such records.17 Defendant further points out that the billing statements of
Abbeville General Hospital and University Medical Center, where Scott was treated, indicate that
there is no outstanding balance owed.18
12 Rec. Doc. 28.
13 Rec. Doc. 43.
14 Rec. Doc. 52; Rec. Doc. 60.
15 Rec. Doc. 28. Because Plaintiff concedes that Defendant is entitled to summary judgment on Plaintiff’s
claim for funeral and burial expenses, Rec. Doc. 43 at 11, the Court will not recap the parties’ arguments with respect
to that claim.
16 Rec. Doc. 28-1 at 7.
17 Id.
18 Id.
3
Next, Defendant argues that Plaintiff cannot recover for “maintenance” and “found.”19
Defendant argues that recovery for maintenance “includes the costs of a seaman’s food, lodging,
and lost wages until the injured seaman has reached maximum medical cure.”20 Defendant
contends that “found” includes “the future value of meals that a seaman would have received
aboard a vessel after he has reached maximum medical cure but is forced to pay out of pocket
because he is unable to return to seaman’s work.”21 Defendant argues that Plaintiff has no claim
for “found” because Scott did not reach maximum cure prior to his death, and in any event, there
is “no evidence that Plaintiff has incurred any costs associated with meals and lodging” from the
date of Scott’s diagnosis through his death.22
Defendant contends that Plaintiff’s request for maintenance should be dismissed for two
reasons. First, Defendant argues that Plaintiff has not shown that any maintenance-related
expenses were incurred. Second, Defendant argues that it provided Scott with “full wages through
the date of his death, rendering any ‘past maintenance’ claim moot.”23
Lastly, Defendant argues that Plaintiff cannot recover nonpecuniary damages as a matter
of law.24 Specifically, Defendant argues that Plaintiff is not entitled to nonpecuniary damages such
as past and future physical pain and suffering, past and future mental and emotional pain and
19 Id. at 9.
20 Id.
21 Id. at 9–10.
22 Id. at 10.
23 Id.
24 Id. at 12.
4
suffering, fear of impending doom, and loss of enjoyment of life.25 Defendant argues that it is
“well-established law in the Fifth Circuit that nonpecuniary damages are unavailable in a wrongful
death action brought under both the Jones Act or general maritime law.”26 Defendant argues that
Plaintiff’s claims for pecuniary damages “in her own right” are not recoverable under the Jones
Act and under general maritime law.27
B. Plaintiff’s Arguments in Opposition to the Motion for Summary Judgment
Plaintiff first argues that she is entitled to recover damages for medical expenses. Plaintiff
argues that the certified billing records show that Scott incurred $6,666.44 in medical expenses,
$3,085.79 of which was paid by Scott’s insurance provider, leaving a balance of $3,580.65 due.28
Furthermore, Plaintiff argues that Scott’s insurance policy was a “fringe benefit” of Scott’s
employment and thus, under the collateral source rule, Plaintiff’s damages cannot be reduced based
on expenses paid by Scott’s insurance provider.29
Plaintiff further argues that she did not intend to assert claims for pain and suffering, fear
of impending doom, and loss of enjoyment of life “in her own right,” but rather for Scott’s “pre-
death pain and suffering, including his own fear of impending doom which he experienced prior
25 Id. at 12.
26 Id.
27 Id. at 13.
28 Rec. Doc. 43 at 7–8.
29 Id. at 8–9.
5
to dying.”30 Plaintiff highlights the deposition testimony of one of Scott’s doctors who stated that
Scott endured “continuous and extreme pain and suffering.”31
C. Defendant’s Arguments in Opposition to the Motion for Summary Judgment
In reply, Defendant first argues that because Plaintiff does not dispute that Defendant is
entitled to summary judgment on Plaintiff’s claims for non-pecuniary loss in her own right, as well
as funeral and burial expenses, the Court could grant summary judgment as to those categories of
damages.32
Defendant further argues that “assuming Plaintiff demonstrates that cure or past medical
expenses are owed, [Defendant] does not dispute the applicability of the collateral source rule for
medical expenses paid by” Scott’s insurer.33 However, Defendant argues that any claims for
medical expenses in excess of the sums paid by Scott’s insurance provider should be dismissed.34
Defendant argues that the parties agree that the total amount of medical care incurred by Scott is
$34,616.26.35 Specifically, Defendant contends that because the evidence demonstrates that
Scott’s insurer paid $31,035.61 and Plaintiff has an outstanding bill for $3,580.65, the Court should
grant summary judgment as to Plaintiff’s claim for past medical expenses in excess of
$34,616.26.36 Defendant further argues that the Fifth Circuit has held that a seaman is only entitled
30 Id. at 11.
31 Id.
32 Rec. Doc. 60 at 1.
33 Id. at 1–2.
34 Id.
35 Id. at 2.
36 Id.
6
to recover for medical expenses actually incurred, and that if the medical provider accepts less
than its billed amount and writes off the remaining balance, the seaman can only recover the
amount accepted as payment.37 Thus, Defendant argues that the Court should grant summary
judgment for Defendant to the extent Plaintiff seeks claims for cure and past medical expenses in
excess of $34,616.26.38
Defendant further argues that Plaintiff has not provided any evidence that Scott “sustained
any wage loss prior to his death,” and therefore asks the Court to grant summary judgment as to
Plaintiff’s claims for Scott’s past wage loss.39
Lastly, Defendant argues that Plaintiff has not provided any evidence that Scott was due
“found,” as Scott did not reach maximum medical cure.40 Therefore, Defendant argues it is entitled
to summary judgment as to Plaintiff’s claim to recover “found.”41
III. Legal Standard
Summary judgment is appropriate when the pleadings, discovery, and affidavits
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”42 To decide whether a genuine dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrain[s] from making credibility determinations
37 Id.
38 Id.
39 Id. at 2.
40 Id. at 3.
41 Id.
42 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
7
or weighing the evidence.”43 All reasonable inferences are drawn in favor of the nonmoving
party.44 Yet “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”45
If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then
no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a
matter of law.46 The nonmoving party may not rest upon the pleadings.47 Instead, the nonmoving
party must identify specific facts in the record and articulate the precise manner in which that
evidence establishes a genuine issue for trial.48
The party seeking summary judgment always bears the initial responsibility of showing the
basis for its motion and identifying record evidence that demonstrates the absence of a genuine
issue of material fact.49 “To satisfy this burden, the movant may either (1) submit evidentiary
documents that negate the existence of some material element of the opponent’s claim or defense,
or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at
trial, demonstrate that the evidence in the record insufficiently supports an essential element of the
opponent’s claim or defense.”50 If the moving party satisfies its initial burden, the burden shifts to
43 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
44 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000))
45 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
46 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
47 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
48 See id.; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
49 Celotex, 477 U.S. at 323.
50 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (quoting Little, 939 F.2d at 1299).
8
the nonmoving party to “identify specific evidence in the record, and to articulate” precisely how
that evidence supports the nonmoving party’s claims.51 The nonmoving party must set forth
“specific facts showing the existence of a ‘genuine’ issue concerning every essential component
of its case.”52
The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied
merely by creating “some metaphysical doubt as to the material facts,” “by conclusory
allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.”53 Moreover, the
nonmoving party may not rest upon mere allegations or denials in its pleadings.54
IV. Analysis
The Complaint in this case requested the following in damages:
a. Past and future physical pain and suffering;
b. Past and future mental and emotional pain and suffering;
c. Fear of impending doom;
d. Past medical expenses;
e. Past maintenance, cure and found;
f. Past and future lost wages and work benefits;
g. Loss of economic support;
h. Loss of enjoyment of life;
51 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris v.
Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
52 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
53 Little, 37 F.3d at 1075 (internal citations omitted).
54 Morris, 144 F.3d at 380.
9
i. Loss of household services;
j. Loss of support;
k. Funeral and burial expenses; and
l. Other elements of damages to be shown at the trial of this matter.
In the instant motion, Defendant seeks partial summary judgment on Plaintiff’s claims for (1) past
medical expenses, (2) past maintenance, cure, and found, (3) funeral and burial expenses, and (4)
nonpecuniary damages.
The Court begins by noting that the Plaintiff concedes that her request for funeral and burial
expenses should be dismissed.55 Therefore, the Court will grant the motion as to Plaintiff’s request
for funeral and burial expenses. Plaintiff further concedes that her request for nonpecuniary
damages in the form of Plaintiff’s pain and suffering, fear of impending doom, and loss of
enjoyment of life, should be dismissed.56 Plaintiff notes that she intended to request those damages
on behalf of Scott, rather than herself personally.57 Because Defendant only moved for summary
judgment on these non-pecuniary damages as to Plaintiff personally,58 and does not argue that
Plaintiff cannot recover these damages on behalf of Scott, the Court will grant the motion to the
extent it seeks dismissal of Plaintiff’s request for nonpecuniary damages of pain and suffering, fear
of impending doom, and loss of enjoyment of life based on Plaintiff herself. Plaintiff may, at trial,
55 Rec. Doc. 43 at 11.
56 Id.
57 Id. at 11–12.
58 Rec. Doc. 28-1 at 13.
10
provide evidence as to Scott’s pain and suffering, fear of impending doom, and loss of enjoyment
of life.59
As to medical expenses, Defendant moved for summary judgment on any claims for past
medical expenses because “there is no evidence that Plaintiff is now liable for any such costs
incurred as a result of Mr. Scott’s COVID-19 diagnosis or treatment.”60 In opposition, Plaintiff
provides evidence of an outstanding bill for $3,580.65 related to Scott’s medical care, and provides
evidence that Scott’s health insurance provider made various other payments for Scott’s medical
care.61 Plaintiff argues that under the collateral source rule, she is entitled to recover the amount
paid by Scott’s health insurance provider on his behalf.62 The collateral source rule “bars a
tortfeasor from reducing the quantum of damages owed to a plaintiff by the amount of recovery
the plaintiff receives from other sources of compensation that are independent of (or collateral to)
the tortfeasor.”63 In reply, Defendant “does not dispute that applicability of the collateral source
rule for medical expenses paid by Robert Scott’s health insurer.”64 However, Defendant states that
it “does move to dismiss any claims brought by plaintiff seeking past medical expenses in excess
59 McBride, 853 F.3d at 781 (“Under the Jones Act, a plaintiff can recover damages for pre-death pain and
suffering.”); De Centeno v. Gulf Fleet Crew, Inc., 798 F.2d 138, 141 (5th Cir. 1986) (“Recoverable items include loss
of support from [decedent]’s past and future earnings; loss of [decedent]’s household services; loss of parental nurture
and guidance of his minor children until the age of majority; and recovery for [decedent]’s predeath pain and
suffering.”).
60 Rec. Doc. 28-1 at 7.
61 Rec. Doc. 43 at 8.
62 Id. at 9–11.
63 Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373, 381 (5th Cir. 2012) (quoting Davis v. Odeo,
Inc., 18 F.3d 1237, 1243 (5th Cir. 1994)).
64 Rec. Doc. 60 at 1.
11
of the sums accepted in payment of the services by his providers.”65 Defendant contends that
because the evidence demonstrates that Scott’s insurer paid $31,035.61 and Plaintiff has an
outstanding bill for $3,580.65, the Court should grant summary judgment as to Plaintiff’s claim
for past medical expenses in excess of $34,616.26.66
On a motion for summary judgment it is the moving party’s burden to “inform[] the district
court of the basis for its motion.”67 Defendant moved for summary judgment on Plaintiff’s claims
for past medical expenses because “there is no evidence that Plaintiff is now liable for any such
costs incurred as a result of Mr. Scott’s COVID-19 diagnosis or treatment.”68 After conceding in
the reply that Plaintiff does have an outstanding bill for $3,580.65 and that Plaintiff would be
entitled to recover the amounts paid by Scott’s health insurance provider, Defendant changes its
request and asks the Court to grant summary judgment as to past medical expenses in excess of
$34,616.26.69 Although Defendant suggests that Plaintiff agrees that this is the total amount of
recoverable medical expenses, the Court will not grant summary judgment on the basis of an
argument made for the first time in reply, which Plaintiff has not had an opportunity to respond to.
If Plaintiff does in fact agree that $34,616.26 is the total amount of recoverable medical expenses,
the parties may stipulate to that at trial.
65 Id. at 2.
66 Id.
67 Celotex, 477 U.S. at 323.
68 Rec. Doc. 28-1 at 7.
69 Rec. Doc. 60 at 2.
12
Defendant also moved for summary judgment on Plaintiff’s claims for “past maintenance,
cure, and found.”70 “Maintenance and cure is an obligation imposed upon a shipowner to provide
for a seaman who becomes ill or injured during his service to the ship.”71 “The maritime doctrine
of maintenance entitles a seaman injured in the service of his ship to ‘food and lodging of the kind
and quality he would have received . . . aboard [the] ship.’”72 Maintenance also includes lost
wages.73 Similarly, “cure entitles an injured seaman to reimbursement for medical expenses and
proper treatment and care.”74 These claims are largely subsumed by Plaintiff’s claims for medical
expenses. Plaintiff characterizes Scott’s “medical expenses” as “including costs for treatment[,]
observation[,] and emergency rooms[,] as well as ‘room and board,’ which is plainly listed on the
certified billing records.”75 Thus, whether referred to as medical expenses, maintenance, or cure,
as discussed above, the Court will deny summary judgment as to the expenses incurred arising out
of Scott’s medical treatment. However, to the extent that Plaintiff sought to recover wages on
behalf of Scott as a subset of “maintenance,” the Court will grant summary judgment on that claim
because Plaintiff concedes that Defendant paid Scott his “full wages” from July 12, 2020 to his
death on July 24, 2020.76
70 Rec. Doc. 28-1 at 7.
71 McBride v. Estis Well Serv., LLC, 853 F.3d 777, 783 (5th Cir. 2017) (quoting Boudreaux v. United States,
280 F.3d 461, 468 (5th Cir. 2000)).
72 Hall v. Nobile Drilling (U.S.) Inc., 242 F.3d 582, 586 (5th Cir. 2001) (quoting Tate v. American Tugs, Inc.,
634 F.2d 869, 871 (5th Cir. 1981)).
73 Atl. Sounding Co., Inc. v. Townsend, 557 U.S. 404, 413 (2009).
74 McBride, 853 F.3d at 783.
75 Rec. Doc. 43 at 10.
76 Rec. Doc. 43-1 at 3.
13
Lastly, Defendant moved for summary judgment on Plaintiff’s request to recover “found.”
Fifth Circuit caselaw explains that “found” is an “oft-overlooked award in admiralty” that covers
the value of future fringe benefits, such as meals aboard a ship, for the period “after maximum
cure has been achieved, and the duty to pay maintenance has therefore ended.”’’ Although the
opposition states that Plaintiff is entitled to recover “found,” Plaintiff does not explain the basis
for her claim for found nor cite any evidence to support it. Thus, the Court grants summary
judgment as to Plaintiffs claim for found.
V. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment’® is
GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent it seeks
summary judgment on Plaintiff's request for (1) funeral and burial expenses; (2) wages as a subset
of “maintenance”; (3) damages for Plaintiffs personal pain and suffering, fear of impending doom,
and loss of enjoyment of life; and (4) “found.” The motion is DENIED in all other respects.
NEW ORLEANS, LOUISIANA, this! 2thday of July, 2022.
C1+reUlta Us.
"eect abut □□
CHIEF JUDGE
UNITED STATES DISTRICT COURT
” Pickle y. Int’l Oilfield Divers, Inc., 791 F.2d 1237, 1242 n. 6 (Sth Cir. 1986).
7 Rec. Doc. 28.
14