Comeaux v. Basin Marine, Inc.

640 So. 2d 833, 1994 WL 278398
CourtLouisiana Court of Appeal
DecidedJune 24, 1994
Docket93 CA 1624
StatusPublished
Cited by13 cases

This text of 640 So. 2d 833 (Comeaux v. Basin Marine, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Comeaux v. Basin Marine, Inc., 640 So. 2d 833, 1994 WL 278398 (La. Ct. App. 1994).

Opinion

640 So.2d 833 (1994)

Adam Joseph COMEAUX, Sr. and Mary Alice Hargrave Comeaux
v.
BASIN MARINE, INC.

No. 93 CA 1624.

Court of Appeal of Louisiana, First Circuit.

June 24, 1994.
Rehearing Denied August 17, 1994.

*834 R. Scott Ramsey, Jr., Berwick, for plaintiff-appellee.

Alan K. Breaud, Michael G. Lemoine, Lafayette, for defendant-appellant Basin Marine, Inc.

Before CARTER, GONZALES and WHIPPLE, JJ.

CARTER, Judge.

This is an appeal from a trial court judgment awarding plaintiff maintenance and cure under general maritime law.

FACTS

In March of 1992, Adam J. Comeaux, Sr. was employed as a deckhand for Basin Marine, Inc. ("Basin Marine"), a small family-owned tugboat company located in Berwick, Louisiana. On March 6, 1992, Comeaux boarded the M/V RICOHOC. The only other *835 persons on board were Captain Paul Billiott and Relief Captain Frank Reed.

On March 27, 1992, upon crew change, Comeaux helped the replacement deckhand haul groceries from the company truck to the vessel. At approximately 12:30 p.m., Comeaux and Reed left the site in a company truck, with Reed driving, traveling home toward Morgan City. Upon arrival at Comeaux's home at approximately 2:30 p.m., Reed watched Comeaux exit the truck, walk to the back of the truck, unload a suitcase and a large bag, and walk across the yard to his house.

Comeaux's wife, Mary Alice, telephoned him at approximately 2:40 p.m. They discussed that her husband was having back pain, so she advised him to make an appointment with a physician for that afternoon. When Mary Alice arrived home at approximately 5:15 p.m., her husband got into the car, and she drove him to Blair Chiropractic Clinic. Comeaux was seen by Dr. Blair for complaints of back pain and stiffness. Comeaux previously had been treated by Dr. Blair in 1981 and 1988 for back pain.

Dr. Blair continued to treat Comeaux on March 28, 30, and 31, 1992. On March 31, 1992, Comeaux went to Basin Marine's office, which is located several blocks from his home, and presented to Iva Jean Guillory, the owner of the company, a slip from Dr. Blair, stating that he was incapacitated and could not return to work.

On May 8, 1992, Comeaux filed a petition for damages under the Jones Act and the general maritime law,[1] alleging in paragraph nine that he had sustained an accident aboard the M/V RICOHOC. In paragraph ten, he specifically alleged, in pertinent part, as follows:

[I]n the early morning hours on or about March 26, 1992, he was instructed to tie up a barge to a dock. He had tied up the bow bit and, because of a lack of help and weariness from working double shifts, he was walking briskly to the stern of the barge. His head was in the light from the dock, but the bottom part of his body was in the dark. As he walked to the stern of the barge, his foot caught in the rear starboard bow cleat jerking his leg and back violently and causing him injuries.

Comeaux also alleged, among other things, his entitlement to maintenance and cure benefits.

Comeaux subsequently filed a motion to sever the maintenance and cure claim from the other issues, and the motion was granted by the trial court. On February 9, 1993, Comeaux's claim for maintenance and cure was heard by the trial judge, after which she took the matter under advisement. On March 24, 1993, judgment was rendered, ordering Basin Marine to pay Comeaux maintenance at the rate of $28.00 per day retroactive to March 27, 1992, until such time as he reaches maximum medical cure, and all medical cure until such time as maximum medical cure has been reached.[2]

Basin Marine appealed from the adverse judgment, assigning the following specifications of error:

1. The trial court erred in finding that Comeaux proved by a preponderance of the evidence his entitlement to maintenance and cure from Basin Marine, Inc.
2. The trial court erred in considering the pleadings to have been enlarged by the introduction of evidence regarding an injury or accident not specifically alleged by Comeaux in the pleadings.
3. Alternatively, the trial court erred in awarding a per diem maintenance rate of $28.00.

ENLARGEMENT OF THE PLEADINGS

Basin Marine contends that the trial court erred in "considering the pleadings enlarged by the introduction of evidence regarding an injury or accident not specifically alleged" by Comeaux. Particularly, Basin Marine asserts that Comeaux's petition did *836 not allege that he possibly injured his back while carrying boxes of groceries from the company truck to the vessel on March 27, 1992. Therefore, Basin Marine argues that the trial judge erred in considering this evidence in making her decision.

A review of the trial transcript indicates that Basin Marine did not object to the admission of this testimony and, in fact, elicited such testimony on cross-examination of Comeaux. Therefore, the failure to object to the admission of such evidence precludes Basin Marine from raising this issue on appeal. See LSA-C.C.P. art. 1154; City National Bank of Baton Rouge v. Brown, 599 So.2d 787, 789 (La.App. 1st Cir.), writ denied, 604 So.2d 999 (La.1992); EMW, Jr. & MKW v. JPM, 583 So.2d 511, 515 (La.App. 2nd Cir. 1991); Ortego v. Sevarg Company, Inc., 550 So.2d 340, 345 (La.App. 3rd Cir.1989).

MAINTENANCE AND CURE

A seaman's right to maintenance and cure is an issue of general maritime law. Smith v. Transworld Drilling Company, 773 F.2d 610, 616 (5th Cir.1985). It includes receiving a subsistence allowance and reimbursement of medical expenses actually incurred. Moreover, the shipowner must take all reasonable steps to ensure that the seaman receives proper care and treatment. Maintenance and cure is designed to provide the seaman with food and lodging when he becomes sick or injured. Jordan v. Intercontinental Bulktank Corporation, 621 So.2d 1141, 1153 (La.App. 1st Cir.), writs denied, 623 So.2d 1335, 1336 (La.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 926, 127 L.Ed.2d 219 (1994).

The right to maintenance and cure is broad, and the burden of proof is relatively light since recovery is not dependent on negligence or fault of the vessel or its owner. Freeman v. Thunder Bay Transportation Company, Inc., 735 F.Supp. 680, 681 (M.D.La.1990). Ordinarily, a seaman who seeks maintenance and cure need prove only that the injury or illness arose while he was in the service of the ship. Freeman v. Thunder Bay Transportation Company, Inc., 735 F.Supp. at 681. No causal connection to his duties need be shown, and a seaman's entitlement to maintenance and cure is entirely unrelated to any fault or negligence on the part of the shipowner. Liner v. J.B. Talley and Company, Inc., 618 F.2d 327, 332 (5th Cir.1980). A seaman must establish his right to maintenance and cure with that degree of proof required in ordinary cases, which means more than mere speculation or conjecture. Sylvester v. Offshore Food Service, Inc., 217 So.2d 430, 436 (La.App. 1st Cir. 1968).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jones v. Howard McCall, Inc.
105 So. 3d 810 (Louisiana Court of Appeal, 2012)
Paul Jones v. Howard McCall, Inc.
Louisiana Court of Appeal, 2012
Harold Tolson v. Omega Protein, Inc.
Louisiana Court of Appeal, 2008
Muhammad v. Diamond Offshore Co.
822 So. 2d 869 (Louisiana Court of Appeal, 2002)
Sims v. Wood Towing Co., Inc.
757 So. 2d 783 (Louisiana Court of Appeal, 2000)
Domonter v. CF Bean Corp.
761 So. 2d 629 (Louisiana Court of Appeal, 2000)
Crane v. Diamond Offshore Drilling, Inc.
743 So. 2d 780 (Louisiana Court of Appeal, 1999)
Burgess v. CF Bean Corp.
743 So. 2d 251 (Louisiana Court of Appeal, 1999)
Fox v. Texaco, Inc.
722 So. 2d 1064 (Louisiana Court of Appeal, 1998)
Steed v. Stokes Towing Co.
709 So. 2d 790 (Louisiana Court of Appeal, 1997)
Milstead v. Diamond M Offshore, Inc.
676 So. 2d 89 (Supreme Court of Louisiana, 1996)
Guillie v. Marine Towing, Inc.
670 So. 2d 1298 (Louisiana Court of Appeal, 1996)
Breaux v. Romero & Associates, Inc.
664 So. 2d 683 (Louisiana Court of Appeal, 1995)
Fountain v. Fountain
644 So. 2d 733 (Louisiana Court of Appeal, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
640 So. 2d 833, 1994 WL 278398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/comeaux-v-basin-marine-inc-lactapp-1994.