Following the Supreme Court’s opinion in Atlantic Sounding v. Townsend, nary a Jones Act seaman’s complaint is filed without the plaintiff alleging his entitlement to punitive damages because his or her employer has willfully, wantonly, arbitrarily and capriciously deprived him or her of punitive damages.
Along with the plaintiffs’ demands, defendants have dusted off their defenses like McCorpen and Pyles.
The Supreme Court of Washington recently upheld a $1,300,000 jury finding of punitive damages in Clausen v. Icicle Seafoods, c/a 85200-6 (March 15, 2012). In Clausen, the employer-petitioner brought a declaratory judgment action to establish it did not owe maintenance or cure to its employee, but Icicle’s dec. action was dismissed when Mr. Clausen filed a claim in state court. (Under the Jones Act, the seaman has a right to choose state or federal court). Dana Clausen was injured onboard an Icicle vessel. Icicle paid him $20/day in maintenance, which was only enough for Mr. Clausen live in a leaky, decrepit RV. More tellingly, Icicle sent Mr. Clausen to a physician who confirmed Mr. Clausen had career-ending injuries and needed surgery. Icicle did not disclose this detail to Mr. Clausen.
When Mr. Clausen sought punitive damages, the jury agreed. The Washington Supreme Court concluded that punitive damages for maintenance and cure are not bound to a 1:1 ratio with compensatory damages, as suggested by Exxon v. Baker (in Atlantic Sounding, the ever-cautious Justice Thomas added a footnote commenting that the Court was not addressing whether the Exxon v. Baker limit applied to maintenance and cure.) Mr. Clausen was awarded $37,420 in compensatory damage for failure to pay maintenance and cure, plus $1,300,000 in punitive damages–instead of a 1:1 ratio, nearly a 1:35 ratio.
In the Eastern District, Judge Fallon recently awarded punitive damages in Nelton v. Cenac Towing Co., Ltd., 2011 WL 289040. Cenac Towing denied maintenance and cure to Mr. Nelton when he stopped treating with Dr. Cenac and began treating with a physician closer to home. Judge Fallon concluded this was arbitrary and capricious. He awarded $5,000 in punitive damages and $2,000 in attorneys’ fees.
Clausen is one of the only decisions to address the interplay between punitive damages and maintenance and cure. Vessel owners will argue a seaman’s punitive damages cannot be more than 100% of the seaman’s compensatory damages for wrongful denial of maintenance and cure, the Washington Supreme Court disagreed. This issue may return to the US Supreme Court sooner rather than later.
Author: Harry Morse