The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIMOTHY VANDENBOOM CIVIL ACTION
VERSUS NO. 25-577
TERRAL RIVERSERVICE, INC SECTION “B” (4)
ORDER AND REASONS
Before the Court are plaintiff Timothy Vandenboom’s (“Vandenboom”) Motions for
Partial Summary Judgment on the Issue of Maintenance and Cure (Rec. Doc. 22) and Vicarious
Liability (Rec. Doc. 23), defendant Terral Riverservice, Inc.’s (“Terral”) Opposition to the Motion
for Partial Summary Judgment on the Issue of Maintenance and Cure (Rec. Doc. 31), and
Opposition and Cross Motion on the Issue of Vicarious Liability (Rec. Doc. 32), and
Vandenboom’s Opposition to the Cross Motion (Rec. Doc. 38);
Also before the Court are Vandenboom’s Motion to Strike (Rec. Doc. 33), Terral’s Motion
for Leave to File Cross Motion and Opposition to the Motion to Strike (Rec. Doc. 34), and
Vandenboom’s Opposition to the Motion for Leave to File (Rec. Doc. 46);
Also before the Court are Terral’s Objection to Motion to Review Magistrate Judge Order
Denying Request to Amend or Withdraw Admission (Rec. Doc. 48), Vandenboom’s Opposition
(Rec. Doc. 49), and Terral’s Reply in Support (Rec. Doc. 50);
Finally, before the Court is Terral’s Motion to Continue Trial and Pretrial Deadlines (Rec.
Doc. 51), Motion to Expedite Consideration of Motion to Continue Trial and Pretrial Deadlines
(Rec. Doc. 52), and Vandenboom’s Opposition to the Motion to Expedite Consideration (Rec.
Doc. 53).
For the following reasons,
IT IS ORDERED that Terral’s Objection to and Motion to Review the Magistrate Judge’s
Order Denying Terral’s Request to Amend or Withdraw its Admission is DENIED, and the
Magistrate Judge’s Order (Rec. Doc. 47) is AFFIRMED.
IT IS FURTHER ORDERED that Vandenboom’s Motions for partial summary judgment
on the issue of maintenance and cure and vicarious liability be GRANTED, and Terral’s Cross
Motion on the issue of vicarious liability be DENIED.
IT IS FURTHER ORDERED that Vandenboom’s Motion to Strike be DENIED and that
Terral’s Motion for Leave to File Its Opposition and Cross Motion be GRANTED.
IT IS FURTHER ORDERED that Terral’s Motion to Continue Trial and Pretrial
Deadlines and Motion to Expedite (Rec. Docs. 51, 52) are Dismissed without prejudice. No
later than August 25, 2026 parties shall jointly submit in writing whether any issues remain
for adjudication and if there still remains need for rescheduling pretrial and/or trial deadlines.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In this case, plaintiff Timothy Vandenboom (“Vandenboom”) seeks to recover damages
under the Jones Act and general maritime law from his former employer, defendant Terral
Riverservice, Inc. (“Terral”), for injuries he sustained in an automobile accident caused by his
coworker’s negligent driving of a Terral-owned vehicle. Rec. Doc. 1.
On May 24, 2022, Vandenboom worked aboard Terral’s ship, MV MARY E. GATTLE,
alongside fellow crewmember, Ethan Redd (“Redd”). Terral crewmembers, following the end of
their shifts, were required to complete “crew change,” i.e., to drive a company truck from the
vessel to the Terral facility in Lettsworth, Louisiana, so that incoming crewmembers could use the
truck for their shifts. Rec. Docs. 22-4 at 2–3; 22-6 at 2; 22-8 at 2. After working a double shift in
which he worked twelve hours (6:00 a.m. to 6:00 p.m.), Vandenboom, with Redd accompanying
him, departed the vessel which was located near Grand Rivers, Kentucky, and began the trip to the
Terral facility in Lettsworth, a trip estimated to take nine to ten hours to complete and would
require driving overnight. Rec. Docs. 22-4 at 2–3; 32-5 at 2.
Roughly an hour into the trip, Redd, who began the trip as the driver, was pulled over by a
police officer in Kentucky for speeding. Rec. Doc. 32-5 at 2. Redd revealed to the officer that his
license was suspended. Id. Redd then called the Terral Port Captain, Lafayette Ainsworth, and
informed him that he had been pulled over for speeding and possessed a suspended license. Id. at
3.Ainsworth responded by ordering Redd to “[g]et Tim to drive.” Id. at 4. Tim, i.e., Vandenboom,
obliged. Id. at 7. Vandenboom drove for about six hours before informing Redd that he needed to
rest because he was tired. Id. Though his license was suspended and he had been pulled over for
speeding, Redd relieved Vandenboom of his driving duties. Id. at 7–8. As Redd drove,
Vandenboom fell asleep in the passenger seat. Rec. Doc. 22-2 at 4.
During his second stint as the designated driver, Redd sped off the highway and “clipped”
a road sign while driving 95 miles per hour. Rec. Doc. 28-1 at 3. Redd eventually course-corrected
and returned to the highway. While driving southbound on Interstate 55 in Mississippi, Redd
noticed that it began to rain heavily and strong winds battered about. Rec. Doc. 32-5 at 14. Despite
the rainfall, Redd set the truck’s cruise control to 80 miles per hour and pressed ahead. Id. Around
1:00 a.m., still in Mississippi, Redd lost control of the vehicle, veered off the highway, and crashed
into a ditch. The crash caused Vandenboom to break his femur, a foot and ankle, suffer back and
neck injuries, and sustain a traumatic brain injury. Rec. Doc. 1 at 3.
Terral supervisors became aware of the accident the following morning. Ainsworth, who
had learned the prior day that Redd had been speeding and driving with a suspended license,
learned that Redd was driving at the time of the accident. Rec. Doc. 22-8 at 8. Allen Hartshorn,
another Terral supervisor, learned the same day, from either Ainsworth or another supervisory
official, that Redd was driving at the time of the accident. Rec. Doc. 22-13 at 8–10. Hartshorn also
reviewed footage from the truck’s dashboard camera that showed that, roughly 25 minutes before
the accident, the vehicle sped off the highway at approximately 95 miles per hour and clipped a
highway sign. Id. at 13–15. Hartshorn reported his findings to Ainsworth and other supervisory
officials. Id. at 10. On July 11, 2022, Ainsworth terminated Redd for driving with a suspended
license in violation of company policy. Rec. Doc. 22-8 at 10.
Vandenboom sued Terral on March 25, 2025, asserting against Terral claims for
maintenance and cure, unseaworthiness, and Jones act damages. Rec. Doc. 1. In July 2025,
Vandenboom provided Terral with medical records with his Rule 26 initial disclosures which
showed that Vandenboom had consumed alcohol prior to the accident. On September 11, 2025,
Vandenboom served upon Terral its Requests for Admissions, which requested that Terral admit
that both Vandenboom and Redd “were in the course and scope of their employment at the time
of the accident.” Rec. Doc. 37-1 at 17. On October 9, 2025, Terral admitted that they were. Rec.
Doc. 37-2 at 4. However, Terral later appeared to reverse course, stating in its December 18, 2025
Amended Answer that Vandenboom “proceeded to act in a manner that was beyond the scope of
his employment with Terral River” and that he “ceased to act as an employee of Terral River”
when he allowed Redd to drive after being instructed to complete the drive himself. Rec. Doc. 18
at 6. Nearly three months later, on March 10, 2026, Terral filed a Motion to Withdraw its prior
admission that Redd and Vandenboom were acting within the “course and scope of their
employment.” Rec. Doc. 28. Magistrate Judge Roby denied the motion, finding that Terral
needlessly delayed filing its motion to withdraw when it had access to facts supporting a
withdrawal request months prior and that a withdrawal at this stage of the proceedings would be
prejudicial. Rec. Doc. 47.
Meanwhile, Vandenboom has filed several partial summary judgment motions, arguing
that Terral owes it maintenance and cure and is vicariously liable for the injuries he sustained
during the accident. Rec. Docs. 22, 23. Notably, Vandenboom relies in part on Terral’s admission
that he and Redd were acting within the course and scope of their employment. Id. Terral has
opposed Vandenboom’s motion and has cross-moved for summary judgment, arguing that Redd
was not acting within the course and scope of his employment. Rec. Docs. 31, 32. Terral has also
appealed Magistrate Judge Roby’s denial of its motion to withdraw. Rec. Doc. 48. Vandenboom
seeks to strike Terral’s opposition and cross-motion because they are untimely, which Terral
opposes. Rec. Docs. 33, 34.
II. LAW AND ANALYSIS
A. Appeal of Magistrate Judge Decision
The Court begins with Terral’s appeal of the Magistrate Judge’s Order denying its Motion
to Withdraw, recognizing that Terral’s admission concerning “course and scope of employment”
is critical to pending motions for summary judgment. A district court “will modify or set aside any
part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also 28
U.S.C. § 636(b)(1)(A). A district court reviews a magistrate judge’s “factual findings under a
clearly erroneous standard, while legal conclusions are reviewed de novo.” Moore v. Ford Motor
Co., 755 F.3d 802, 806 (5th Cir. 2014). A factual finding is “clearly erroneous” when “although
there is evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948).
Having reviewed the record, the Magistrate Judge’s Order, and Terral’s objections thereto,
the Court will affirm the Magistrate Judge’s Order denying Terral’s Motion to Withdraw. Terral
sought to withdraw its admission because it “discovered additional facts and evidence which
contradicted its prior admission” and that at the time of its admission, “it was in possession of
limited factual information concerning the accident[.]” Rec. Doc. 48-1 at 2, 4. However, at the
time of its admission, Terral had access to the factual information which it claims would have led
it to deny the request for admission that Redd and Vandenboom acted within the course and scope
of their employment.
On September 11, 2025, Vandenboom served upon Terral its Requests for Admissions.
Rec. Doc. 37-1 at 17. Terral answered the request for admission in October 2025, admitting that
Redd and Vandenboom acted within the course and scope of their employment. Since May 2022,
however, Terral supervisors have known that (1) an hour into the trip to the Terral facility, Redd
was stopped by police for speeding; (2) Redd was driving with a suspended license; (3) Redd was
speeding roughly 25 minutes before the accident; and (4) Redd was driving at the time of the
accident in violation of a direct order from Ainsworth that Vandenboom continue the drive. In July
2022, and therefore years before Terral answered Vandenboom’s request for admission, Ainsworth
terminated Redd for driving with a suspended license in violation of company policy. Rec. Doc.
22-8 at 10. It is not clear why Terral’s counsel did not become aware of these facts until after the
admission, but it is undeniable that Terral itself knew the relevant factual details that would have
supported denying or objecting to the request for admission.
Contrary to Terral’s assertion, the Court does not charge parties to possess “automatic
knowledge of all the facts at the beginning of discovery[.]” Such a requirement would make
discovery unnecessary. Rec. Doc. 50 at 8. However, Terral had a month before it needed to respond
to Vandenboom’s request for admissions and, coupled with the fact that Terral possessed most
information since May 2022, it is not clear why Terral could not have provided an accurate
response to Vandenboom’s request for admission.
While Terral also notes that evidence “strongly suggest Vandenboom and Redd consumed
alcoholic beverage(s) before this accident,” Rec. Doc. 48-1 at 5, Terral does not dispute
Vandenboom’s response that he provided Terral with medical records on July 22, 2025, which
establishes that Vandenboom had consumed alcohol prior to the accident. Rec. Doc. 49 at 12; see
also Rec. Doc. 50 at 9 (stating that Terral had “no reason …to…believe[] that both Vandenboom,
and Ethan Red [sic] had been drinking before or at the time of the accident[.]”). While Terral may
have discovered additional facts pertaining to alcohol consumption after its admission, and
particularly concerning Redd’s consumption of alcohol, Terral appears to have had access to
relevant information concerning alcohol consumption before its admission which it could have
relied on in denying or objecting to the request for admission.
Terral argues that it is “entitled to withdraw and amend responses” under FRCP 36
assuming there is no prejudice to the opposing party and withdrawal would facilitate discovery
and trial on the merits. Rec. Doc. 48-1 at 1. However, as the Magistrate Judge correctly stated,
even if a movant satisfies the two-part test for withdrawing or amending an admission under FRCP
Rule 36(b), a “district court still has discretion to deny a request for leave to withdraw or amend
an admission.” Rec. Doc. 47 at 5; see also Covarrubias v. Five Unknown INS/Border Patrol
Agents, 192 F. App’x 247, 248 (5th Cir. 2006) (stating same). The Magistrate Judge found that
Terral “waited approximately five months before seeking withdrawal of its October 9, 2025
admission” which occurred after Vandenboom had submitted a motion for summary judgment
relying in part on the admission. Rec. Doc. 47 at 8. Courts have found this lack of diligence to
adequately support a court’s discretion to deny a motion to withdraw or amend. See, e.g., Onosode
v. Equifax Info. Servs., LLC. No. 420CV00951SDJCAN, 2022 WL 19380561, at *7 (E.D. Tex.
July 21, 2022) (collecting cases in which courts have denied a motion to withdraw or amend an
admission when the moving party failed to diligently seek to withdraw the admission). Given this
lack of diligence, and the record showing that Terral had ample evidence prior to its admission to
object to or deny the request for admission, the record does not show that the Magistrate Judge’s
Order was clearly erroneous or contrary to law. For the reasons explained herein and those
provided in the Magistrate Judge’s Order, the Court DENIES Terral’s Appeal of the Magistrate
Judge’s Order (Rec. Doc. 47).
B. The Timeliness of Terral’s Opposition Memoranda
Vandenboom has moved for summary judgment on the issues of vicarious liability and
maintenance and cure, arguing that Terral is liable to him for his injuries due to Redd’s negligence.
Rec. Docs. 22, 23. Terral opposes both motions. Rec. Docs. 31, 32-1. Terral’s opposition to
Vandenboom’s motion for summary judgment on the issue of vicarious liability also serves as a
cross motion for summary judgment on the same issue. Rec. Doc. 32-1. However, before
addressing the merits of Vandenboom’s motions, the Court must determine if Terral’s opposition
to those motions is properly before the Court.
Vandenboom filed his motions on February 6, 2026, and the motions were “noticed” for
March 4, 2026. Rec. Docs. 22, 23. Local Rule 7.2 states that “[t]he noticed date is the date the
motion is deemed submitted to the court for decision and after which no further briefing will be
allowed, except with prior leave of court.” Pursuant to Local Rule 7.5, the deadline for Terral to
file oppositions to Vandenboom’s motions was eight (8) days before March 4, 2026, which was
February 24, 2026. However, Terral waited until March 10–11, 2026, and therefore two weeks
after the deadline, to file its dual cross motion and opposition to Vandenboom’s motion for
summary judgment on the issue of vicarious liability (Rec. Doc. 32) and opposition to
Vandenboom’s motion for summary judgment on the issue of maintenance and cure (Rec. Docs.
30, 31). Vandenboom now moves to strike Terral’s oppositions. Rec. Doc. 33. In response, Terral,
nearly a month after its original deadline and two weeks after Vandenboom filed his motion to
strike, requests leave to file its opposition. Rec. Doc. 34.
Under Federal Rule of Civil Procedure 6(b)(1), district courts have the “discretion to allow
untimely responses where the party failed to act because of excusable neglect.” Rosco v. Potter,
265 Fed.App’x 279, 283 (5th Cir. 2008). Several factors are relevant to a court’s excusable neglect
analysis, including “the danger of prejudice to the [non-movant], the length of the delay and its
potential impact on the judicial proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant acted in good faith.” Adams
v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 n.8 (5th Cir. 2006). The burden of establishing
excusable neglect is on the party seeking an extension of time to file their response. Traffic Scan
Network, Inc. v. Winston, No. 92-2243, 1995 WL 83932, at *1 (E.D. La. Feb. 24, 1995).
While mistakes of counsel generally militate against a finding of excusable neglect, a
district court may still grant the offending party a chance to file their untimely response. That is
because “the reason for the delay and whether it was within the control of the movant” is “but one
of the several factors that the Court must evaluate in determining excusable neglect.” Theriot v.
Bldg. Trades United Pension Trd. Fund, No. CV 18-10250, 2022 WL 2191688, at *2 (E.D. La.
June 17, 2022). Notably, “other considerations may outweigh this negative factor and tip the
balance in favor of allowing additional time.” Id (citing Midwest Emps. Cas. Co. v. Williams, 161
F.3d 877, 881–82 (5th Cir. 1998)). The Fifth Circuit has held that the excusable neglect inquiry
“contains leeway for parties who make good faith mistakes” and encompasses “omissions caused
by carelessness.” Coleman Hammons Constr. Co., Inc. v. Occupational Safety & Health Rev.
Comm’n, 942 F.3d 279, 283 (5th Cir. 2019).
Here, Terral explains that its oppositions to Vandenboom’s motions are untimely because
of pro hac vice counsel’s “inadvertent erroneous reading of Local Rule 7.5[.]” Rec. Doc. 34-1 at
3. Local Rule 7.5 states that “[e]ach party opposing a motion must file and serve a memorandum
in opposition to the motion with citations of authorities no later than eight days before the noticed
submission date.” It is unclear how pro hac vice counsel could have misread this clearly stated
rule. Regardless, an erroneous reading of local rules constitutes “ignorance, carelessness, or
negligence,” which is arguably not sufficient to satisfy the “excusable neglect” standard. Traffic
Scan Network, 1995 WL 83932, at *1; see also Martin v. Akzo Nobel Polymer Chemicals LLC,
180 F. App’x 519, 521 (5th Cir. 2006) (stating that “ignorance of local rules or misconstruction of
their applicability does not constitute excusable neglect under Rule 60(b)(1).”); and Homelife in
the Gardens, LLC v. Landry, No. CV 16-15549, 2018 WL 310377, at *2 (E.D. La. Jan. 5, 2018)
(“The same ‘excusable neglect’ standard applies under both 60(b)(1) and Rule 6(b)(1).”).
However, the Court will allow Terral to file its untimely responses. While Terral has been
careless, the Fifth Circuit has explained that “the ordinary meaning of neglect ‘encompasses both
simple, faultless omissions to act and, more commonly, omissions caused by carelessness.’” L.A.
Pub. Ins. Adjusters, Inc. v. Nelson, 17 F.4th 521, 525 (5th Cir. 2021). As such, Terral’s carelessness
here is not reason enough for the Court to deny its request to file its opposition. The record also
does not suggest that Terral has acted in bad faith. See Pennino v. Reilly-Benton Co., Inc., No. CV
21-363, 2022 WL 2467685, at *2 (E.D. La. July 6, 2022) (Lemelle, J.) (granting an opportunity to
file untimely response because of lack of evidence of bad faith). Finally, while Vandenboom
argues that he would be prejudiced if Terral’s request were granted because he would not be able
to file a reply given the expired submission date on his summary judgment motions, the deadline
for dispositive motions is not until September 2, 2026, and the pre-conference and trial dates are
not until October 15, 2026, and October 26, 2026, respectively. See Pennino, 2022 WL 2467685,
at *2 (finding that non-movant did not suffer significant prejudice in part because the dispositive
motion, pretrial, and trial deadlines were months away). If necessary, Vandenboom may file a
motion for leave to file a reply to Terral’s oppositions and cross motion.
For the reasons provided herein, Vandenboom’s Motion to Strike (Rec. Doc. 33) is
DENIED and Terral’s Motion for Leave to File Opposition Memoranda and Cross Motion (Rec.
Doc. 34) is GRANTED.
C. The Motions for Summary Judgment
Having decided that Terral may file its opposition memoranda and cross motion, the Court
will now address the merits of Vandenboom’s motions for summary judgment. The Court will
begin with the cross motions for summary judgment on the issue of vicarious liability (Rec. Docs.
23, 32) before addressing Vandenboom’s motion on the issue of maintenance and cure (Rec. Doc.
22).
Summary judgment is appropriate when the pleadings, depositions, interrogatory answers,
and admissions, together with any affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Material in support or opposition of a
motion for summary judgment may be considered if it is “capable of being ‘presented in a form
that would be admissible in evidence.’” LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d
530, 534 (5th Cir. 2016) (emphasis in original) (quoting Fed. R. Civ. P. 56(c)(2)). Courts view all
facts and evidence in the light most favorable to the non-moving party, but “refrain from making
credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).
Where the movant bears the burden of proof, it must “demonstrate the absence of a genuine
issue of material fact” using competent summary judgment evidence. Celotex, 477 U.S. at 323.
However, “where the non-movant bears the burden of proof at trial, the movant may merely point
to an absence of evidence.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994).
Should the movant meet its burden, the burden shifts to the non-movant, who must show by
“competent summary judgment evidence” that there is a genuine issue of material fact. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618. Accordingly, conclusory rebuttals of the pleadings are insufficient to avoid summary
judgment. Bargher v. White, 928 F.3d 439, 444–45 (5th Cir. 2019). An opposing party “may not
rely merely on allegations or denials in its own pleadings, but must, in its response, set out specific
facts showing a genuine factual dispute for trial.” Stauffer v. Gearhart, 741 F.3d 574, 581 (5th Cir.
2014). There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party,
thus entitling the moving party to judgment as a matter of law. Smith v. Amedisys, 298 F.3d 434,
440 (5th Cir. 2002).
Summary judgment is the proper vehicle for resolving FOIA claims. See Cooper Cameron
Corp. v. U.S. Dep’t of Labor, 280 F.3d 539, 543 (5th Cir. 2002) (“Summary judgment resolves
most FOIA cases.”). In a FOIA suit, an agency is entitled to summary judgment once it
demonstrates that no material facts are in dispute and that each document that falls within the class
requested either has been produced, is unidentifiable, or is exempt from disclosure. Students
Against Genocide v. Dept. of State, 257 F.3d 828, 833 (D.C. Cir. 2001).
i. Vicarious Liability
The parties dispute whether Terral is vicariously liable for Redd’s negligence. They agree
that resolution of this dispute turns on whether Vandenboom and Redd were in the “course and
scope of their employment” at the time of Redd’s negligence, and further cite Beech v. Hercules
Drilling Co., LLC, 691 F.3d 566, 571 (5th Cir. 2012) for authoritative principles. Beech explains
that under the Jones Act, “an employer may be vicariously liable for its employee’s negligence
under the doctrine of respondeat superior so long as the negligence occurred ‘in the course of
employment.’” Beech, 691 F.3d at 571. More specifically, “in order to hold an employer
vicariously liable under the Jones Act for one employee’s injury caused by the negligence of a co-
employee, a plaintiff must show that the injured employee and the employee who caused the harm
were both acting in the course of their employment at the time of the accident.” Beech, 691 F.3d
at 572. Given the parties’ citation of Beech, and their disagreement about whether it is analogous
to the facts of the instant matter, the Court now turns to that case.1
In Beech, plaintiff Beech worked as a crane operator aboard a drilling rig owned by his
employer. Beech, 691 F. 3d at 568. One day, plaintiff’s coworker, Cosenza, accidentally brought
a firearm aboard the vessel and, upon discovering his mistake, hid the weapon in his locker and
failed to report that a weapon was aboard the vessel––all in violation of workplace policies. Id.
Cosenza was assigned to a night shift in which his duties were “to monitor the rig’s generator, to
check certain equipment, and to report any suspicious activity or problems.” Id. The employer had
encouraged Cosenza to stay in the break room and watch television because he could perform his
1 Terral has admitted that Vandenboom and Redd acted within the course and scope of their employment, and the
Magistrate Judge has denied Terral’s request to withdraw or amend its admission. Rec. Doc. 47. The Court has
affirmed that ruling and denied Terral’s appeal of the Magistrate Judge’s Order. As such, that admission is binding
pursuant to Federal Rule of Civil Procedure 36(b). Nevertheless, the Court will still address the issue out of an
abundance of caution.
duties while engaging in those activities. Id. Beech, who was aboard the vessel that same night,
mentioned to Cosenza that he was “thinking about purchasing a small firearm,” and Cosenza,
believing that Beech may be interested in his firearm, left the break room and retrieved the firearm
from his locker. Id. Cosenza showed the firearm to Beech who inspected, but did not handle, the
weapon. And then, with the firearm still in his possession, “[a]s Cosenza sat back down in the TV
room, his arm bumped a part of the couch, and the firearm accidentally discharged, mortally
wounding Beech.” Id. at 568–69.
The Fifth Circuit was confronted with the question of whether the employer was
vicariously liable for Cosenza’s negligence, and therefore needed to determine whether, at the
moment the weapon fired, Cosenza was acting within the “course and scope of his employment.”
Beech, 691 F. 3d at 572. After considering several alternative tests, the Fifth Circuit held that “the
test for whether a Jones Act employee was acting within the course and scope of his employment
is whether his actions at the time of the injury were in furtherance of his employer’s business
interests.” Id. at 574. The Fifth Circuit cited favorably a Seventh Circuit decision, Sobieski v. Ispat
Island, Inc., 413 F.3d 628 (7th Cir. 2005), in which that court found that an employer was not
vicariously liable for a crewmember’s action of massaging another crewmember’s neck (and thus
injuring him) because the crewmember engaged in an action that was “undertaken by an employee
for a private purpose and having no causal relationship with his employment.” 413 F.3d at 634–
35. In a footnote, the Beech court also cited favorably other cases in which courts found that an
employee was not acting within the course and scope of their employment when they engaged in
private activities or pursued their own interests. Beech, 691 F.3d at 574, n.3. The Fifth Circuit
ultimately concluded that “Cosenza’s leaving the break room to retrieve a loaded firearm when he
was supposed to be monitoring the generator and watching out for suspicious behavior took him
outside the course and scope of his employment.” Id. at 576.
Having reviewed Beech, this Court holds, contrary to Terral’s arguments, that it is not
controlling or applicable to the facts in the instant matter. Unlike the negligent parties in Beech
(showing off a firearm to an interested party) or Sobieski (providing unauthorized neck massages),
who were engaged in purely private activities that had no causal relationship with their employer’s
business, Redd’s actions, though negligent, was in pursuit of a core part of his job duties: crew
change. In Beech, Cosenza took himself outside of the course and scope of his employment when
he “[left] the break room to retrieve a loaded firearm when he was supposed to be monitoring the
generator and watching out for suspicious behavior[.]” Beech, 691 F.3d at 576. It was Cosenza’s
pursuit of a private activity, and consequent abandonment of his job duties, which led the Fifth
Circuit to conclude that Cosenza was not acting within the course and scope of his employment.
Here, however, Redd never abandoned his job duties nor has Terral introduced any evidence
establishing as such.2
2 Terral has argued, in later briefing, that Vandenboom and Redd consumed alcohol prior to the accident. Rec. Doc.
48-1 at 5. Terral has also stated its intention to use later deposition transcripts and testimony “to prove that Ethan
Redd was intoxicated at the time of the subject accident.” Rec. Doc. 50 at 9–10. However, in its opposition
memorandum to Vandenboom’s motion for summary judgment on the issue of vicarious liability, Terral does not
cite any evidence concerning alcohol consumption, and the word “alcohol” does not even appear in the
memorandum. See Rec. Doc. 32-1. This absence is especially curious given that in its memorandum supporting its
motion to withdraw admission (Rec. Doc. 28-1), filed a day before its cross motion and opposition (Rec. Doc. 32-1),
Terral stated that its counsel learned that Redd, and possibly Vandenboom, had consumed alcohol prior to the
accident.
While possible that Terral did not fully develop its alcohol consumption theory until after it submitted its opposition
and cross-motion, later briefing also does not cite to evidence concerning whether Redd consumed alcohol prior to
the accident, was intoxicated at the time of the accident, or that Redd’s alleged intoxication caused the accident. See
Ebanks v. United States, No. CIV.A 12-743, 2013 WL 2243839, at *6 (E.D. La. May 21, 2013) (stating that
“[c]ourts distinguish between a seaman whose intoxication actually caused an injury and one who happens to be
intoxicated at the time of an injury[.]”); see also Frederick v. Swift Transp. Co., 616 F.3d 1074, 1079–80 (10th Cir.
2010) (noting that defendant had not argued that there was evidence that negligent driver “was so severely impaired
by methamphetamine that a jury could find she had not returned to her employment even after she had resumed
driving[.]”). Terral’s allegations are insufficient. An opposing party “may not rely merely on allegations or denials
in its own pleadings, but must, in its response, set out specific facts showing a genuine factual dispute for trial.”
Stauffer v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014).
While Redd drove with a suspended license, violated a direct order to stop driving, and was
speeding throughout the trip, all against company policies, courts have recognized that not every
violation of company policies “automatically casts an employee outside the course of his
employment.” Beech, 691 F.3d at 576 (citing Frederick v. Swift Transp. Co., 616 F.3d 1074, 1079–
80 (10th Cir. 2010) (holding that a truck driver who drove while under the influence of
methamphetamine, in violation of safety policies, still acted within the course and scope of her
employment because she was driving on her assigned route under the employer’s directions and
attempting to meet her employer’s deadlines)). This is so because “a seaman’s conduct injuring a
third party may involve both negligence and the violation of his employer’s own policies; to
remove a seaman from the course and scope of his employment merely for violating an employer’s
safety policies would immunize the employer from liability in such cases.” Matter of Chester J.
Marine, LLC, No. CV-20-214-JWD-SDJ, 2022 WL 16858505, at *10 (M.D. La. Nov. 10, 2022).
In short, on the record before it, there is no evidence from which to conclude that Redd or
Vandenboom had abandoned their duties and were not acting within the course of scope of their
employment.3 As such, Vandenboom’s motion for partial summary judgment on the issue of
vicarious liability is GRANTED, and Terral’s cross motion on the same issue is DENIED.
ii. Maintenance and Cure
On December 19, 2025, Terral filed an amended answer, asserting an affirmative defense
that it should be relieved of its obligation to pay Vandenboom maintenance and cure. Rec. Doc.
21 at 8. Vandenboom therefore moves for partial summary judgment on the issue of maintenance
3 The Court also concludes that Vandenboom acted within the course and scope of his employment. Undeniably,
Vandenboom violated a direct order to continue the drive in Redd’s place. However, Vandenboom drove for as long
as he could and relinquished driving duties only when he became too tired to continue driving safely.
Vandenboom’s actions were in furtherance of Terral’s business interests in that Vandenboom was trying to safely
complete crew change. Terral has not introduced any evidence to show that Vandenboom’s alleged drunkenness
caused the accident or that any other action by Vandenboom caused the accident.
and cure. Rec. Doc. 22. Notably, Terral does not respond to the substance of Vandenboom’s
motion, instead arguing that there is no justiciable controversy and that the matter is not ripe. Rec.
Doc. 31 at 4. But this matter does present a justiciable controversy. The dispute at issue here
concerns whether Terral’s “legal obligation to provide [Vandenboom] with maintenance and cure
has been extinguished because [Vandenboom forfeited his right to maintenance and cure due to
willful misconduct].” Rowan Companies, Inc., v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989). Because
of Terral’s insistence that Vandenboom “has forfeited his right to continue to be paid
[m]aintenance and [c]ure,” Rec. Doc. 31 at 8, the dispute here is not “hypothetical, conjectural, or
conditional.” Id. Moreover, “all of the acts necessary for resolution of the merits of the claim,” i.e.,
the accident, Vandenboom’s injuries, etc., occurred before the filing of Vandenboom’s complaint.
Id. For the foregoing reasons, the dispute is also ripe for adjudication. The matter presented here
is not an “abstract disagreement,” Thomas v. Union Carbide Agr. Prods. Co. 473 U.S. 568, 580
(1985), but a real and present one given Terral’s insistence that Vandenboom has forfeited his right
to maintenance and cure. Having determined that a justiciable controversy ripe for adjudication
has been presented, the Court now turns to the merits of Vandenboom’s motion.
“From its dawn, the maritime law has recognized the seaman’s right to maintenance and
cure for injuries suffered in the course of his service to the vessel, whether occurring on sea or on
land.” O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 (1943). The phrase “service
of the ship” in maintenance and cure cases, has the same meaning as the “course of employment”
phrase used in vicarious liability cases. Ebanks v. United States, No. CIV.A. 12-743, 2013 WL
2243839, at *4 (E.D. La. May 21, 2013). The “ship owner’s duty to pay maintenance and cure is
broad” and the duty “must be liberally interpreted for the benefit and protection of the seaman.”
Vaughn v. Am. Com. Barge Line, LLC, 672 F. Supp. 3d 184, 189 (E.D. La. 2023). Any “ambiguity
or doubt related to maintenance and cure must be resolved in favor of the seaman.” Id. Because of
the “absolute nature of the right, a plaintiff’s burden of proof on a maintenance and cure claim is
slight: he need only established that he was injured or became ill while ‘subject to the call of duty
as a seaman.’” Johnson v. Cenac Towing, Inc., 599 F. Supp. 2d 721, 726 (E.D. La. 2009).
A shipowner’s defenses to a seaman’s maintenance and cure claim “are few and narrowly
applied.” Silmon v. Can Do II, Inc., 89 F.3d 240, 242 (5th Cir. 1996). One such defense is when
the seaman’s injury is caused by willful misconduct or misbehavior. Dailey v. Alcoa S.S. Co., 337
F.2d 611, 612 (5th Cir. 1964). However, as the Supreme Court has emphasized “time and again,
however, the seaman’s behavior must be ‘positively vicious’ before he will be denied maintenance
and cure.” Johnson, 599 F. Supp 2d at 726. The “traditional instances are venereal disease and
injuries received as a result of intoxication.” Dailey, 337 F.2d at 612. Even a seaman’s
“disobedience to orders” will not always constitute willful misconduct or misbehavior that would
forfeit the seaman’s right to maintenance and cure. Farrell v. United States, 336 U.S. 511, 517
(1949) (holding that seaman was still entitled to maintenance and cure even though seaman was
“disobedient to orders” and was injured “due to no negligence but his own.”).
With these principles in mind, the Court turns to the instant motion. First, Vandenboom
was in the service of the ship at the time of the accident. As noted, the phrase “service of the ship”
in maintenance and cure cases has the same meaning as the “course of employment” phrase used
in vicarious liability cases. Ebanks, 2013 WL 2243839. The Court has determined, and Terral has
admitted, that Vandenboom and Redd were acting within the course and scope of their
employment. At the time of the accident, Vandenboom and Redd were completing crew change,
which was a required part of their duties as crewmembers of the MV MARY E. GATTLE. Second,
Vandenboom’s actions did not rise to the level of willful misconduct such that he forfeited his
right to maintenance and cure. Vandenboom’s actions consisted of allowing Redd to drive once he
became too tired to continue driving himself, in violation of Ainsworth’s direct order, and being
asleep at the time of the accident. This does not amount to “positively vicious” behavior that would
justify denying Vandenboom maintenance and cure. Finally, there is no evidence that
Vandenboom’s actions caused his injuries. Dailey, 337 F.2d at 612 (noting that the willful
misconduct must cause the injury). Vandenboom’s decision to let Redd drive did not cause his
injuries. Even if the Court were to consider Vandenboom’s alleged intoxication at the time of the
accident, there is no evidence that his intoxication caused his injuries.4 See Creel v. Weber Marine,
Inc., No. CIV.A. 92-0642, 1992 WL 314982, at *1 (E.D. La. Oct. 20, 1992) (stating that defendant
had not submitted “one shred of evidence” showing that plaintiff’s alleged willful misconduct,
being under the influence of marijuana at the time of his injuries in violation of company policy,
caused the injuries). For these reasons, Vandenboom is entitled to maintenance and cure. As such,
Vandeboom’s motion for partial summary judgment on the issue of maintenance and cure is
GRANTED.
New Orleans, Louisiana, this 18th day of August 2026
_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE
4 In its opposition memorandum, Terral noted that it would conduct additional discovery to determine “the extent
to which Timothy Vandenboom participated in consuming an alcoholic beverage (or beverages) and the nature of
the alcoholic beverages Timothy Vandenboom consumed[.]” Rec. Doc. 31 at 3. Terral continued that it would
continue to pay for Vandenboom’s maintenance and cure until Vandenboom reaches MMI or, alternatively, until
Terral decides whether it will seek a ruling from this Court that Vandenboom has forfeited his right to
maintenance and cure. Id. at 4. To date, however, Terral has not presented this Court with evidence establishing
that Vandenboom’s alleged alcohol consumption caused his injuries nor, nearly five months after filing its
opposition, has Terral filed a cross motion on the issue of maintenance and cure arguing that Vandenboom
forfeited his right to such recovery.