Folse v. Gulf Tran, Inc.

873 So. 2d 718, 2004 WL 326211
CourtLouisiana Court of Appeal
DecidedFebruary 23, 2004
Docket2003 CA 0758
StatusPublished
Cited by3 cases

This text of 873 So. 2d 718 (Folse v. Gulf Tran, 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
Folse v. Gulf Tran, Inc., 873 So. 2d 718, 2004 WL 326211 (La. Ct. App. 2004).

Opinion

873 So.2d 718 (2004)

Dave P. FOLSE, Jr.
v.
GULF TRAN, INC.

No. 2003 CA 0758.

Court of Appeal of Louisiana, First Circuit.

February 23, 2004.

*720 Steven M. Speigel, Leo M. Prange, III, New Orleans, Counsel for Plaintiff/Appellee Dave P. Folse, Jr.

Fred E. Salley, Covington, Counsel for Defendant/Appellant Gulf Tran, Inc.

Before: PETTIGREW, DOWNING, and McCLENDON, JJ.

McCLENDON, J.

In this action brought pursuant to the Jones Act, 46 U.S.C.App. § 688 et seq., and general maritime law, issues of liability and attorney's fees are raised on appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

David P. Folse, Jr. was employed by Seahorse Marine as a captain aboard the M/V Mr. Walter. In 1997, Seahorse Marine sold the M/V Mr. Walter and several other boats to Gulf Tran, Inc. Some crew members of those vessels, including Folse, became employees of Gulf Tran at that time. Subsequently, in November of 1997, Gulf Tran assigned Folse to the M/V Mr. Walter.

In December of 1997, Folse advised Gulf Tran that he was injured while working on the M/V Mr. Walter and was suffering from an infected "blister" on his right foot as a result of those injuries. Gulf Tran began paying Folse maintenance and cure at that time. On January 26, 1998, after further investigation, Gulf Tran discontinued those benefits.

*721 On November 15, 2000, Folse filed the instant action, seeking recovery under the Jones Act and general maritime law. Therein, he alleged that in November of 1997, another employee, Captain Teodro Huerta, stepped on his foot, causing a diabetic ulcer to develop. Folse also alleged that, subsequently, Captain William Gant, while intoxicated, forced Folse to get off the M/V Mr. Walter at an abandoned dock after nightfall. At the dock and while walking to a nearby road, Folse was exposed to muddy waters that allegedly caused the diabetic ulcer to become extremely infected. Folse asserted that this injury caused him to suffer serious and debilitating personal injuries, including physical pain and suffering, loss of enjoyment of life, mental and emotional distress, and loss of wages. Folse sought to recover damages, maintenance and cure, and attorney's fees.

After hearing the matter, the trial court rendered judgment in favor of Folse and against Gulf Tran, awarding Folse maintenance and cure in the sum of $14,900.67. The court further found that Gulf Tran was negligent and awarded Folse $15,000.00 in damages, but reduced that sum by 50% upon a finding that Folse was 50% at fault in causing his injuries. Gulf Tran appeals that judgment, contending the trial court erred in finding it liable for Folse's injuries. Folse answered the appeal, asserting the trial court erred in failing to award him attorney's fees under general maritime law.[1]

STANDARD OF REVIEW

Admiralty claims may be brought in federal court pursuant to its admiralty jurisdiction or in state court under the savings to suitors clause; in either case, federal substantive maritime law applies. Antill v. Pub. Grain Elevator of New Orleans, Inc., 577 So.2d 1039, 1040 (La.App. 4 Cir.), writ denied, 581 So.2d 684 (La.1991). However, factual findings made by the trial court in general maritime or Jones Act cases are reviewed under the manifestly wrong or clearly wrong standard of review used by the Louisiana appellate courts in reviewing factual findings of lower courts. Milstead v. Diamond M Offshore, Inc., 95-2446, p. 11 (La.7/1/96), 676 So.2d 89, 96.

Under the manifest error standard of review enunciated in Stobart v. State of Louisiana, Dep't of Transp. and Dev., 617 So.2d 880, 882 (La.1993), in order to reverse a factual determination, an appellate court must find (1) a reasonable factual basis does not exist in the record for the finding and (2) the record establishes that the finding is clearly wrong or manifestly erroneous. The issue to be resolved by a reviewing court is not whether the factfinder's conclusion is right or wrong, but whether the conclusion is a reasonable one. Nevertheless, although it must give great deference to the trier of fact, a reviewing court has a constitutional duty to review facts and reverse trial court judgments that are clearly wrong based on the evidence, or are clearly without evidentiary support. Ambrose v. New Orleans Police Dep't Ambulance Serv., 93-3099, p. 8 (La.7/5/94), 639 So.2d 216, 221. If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the appellate court may not reverse it even though it is convinced that if it had been sitting as the trier of fact, it would have weighed the evidence differently. *722 Wood v. SubSea Int'l, Inc., 99-1320, p. 7 (La.App. 4 Cir. 3/29/00), 766 So.2d 563, 568, writ denied, XXXX-XXXX (La.6/16/00), 765 So.2d 336. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Virgil v. Am. Guarantee & Liab. Ins. Co., 507 So.2d 825, 826 (La.1987).

FORFEITURE OF MAINTENANCE AND CURE

Maintenance and cure is an obligation imposed upon a shipowner to provide the cost of medical treatment and basic living expenses to a seaman who becomes ill or injured during his service to the ship. Silmon v. Can Do II, Inc., 89 F.3d 240, 242 (5th Cir.1996). The obligation to pay maintenance and cure is not predicated on the fault or negligence of the shipowner. Aguilar v. Standard Oil of N.J., 318 U.S. 724, 730, 63 S.Ct. 930, 934, 87 L.Ed. 1107 (1943). Furthermore, a seaman's right to maintenance and cure is subject to very few well-defined and very narrow exceptions. A seaman who intentionally misrepresents or conceals medical facts from an employer while applying for work will forfeit his right to seek maintenance and cure if the misrepresented or undisclosed facts are material to the employer's decision to hire him and if there is a causal connection between the withheld information and the injury which is eventually sustained. McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 549 (5th Cir. 1968), cert. denied, 393 U.S. 894, 89 S.Ct. 223, 21 L.Ed.2d 175 (1968).

On appeal, Gulf Tran asserts that the trial court erred in failing to conclude that Folse forfeited his claim for maintenance and cure because he failed to disclose to his employer that he suffered from Type II Diabetes. Given the circumstances of this case, we disagree.

On September 18, 1997, Folse completed an application for employment with Gulf Tran, wherein the employer asked few questions concerning Folse's health. In his application for employment, Folse indicated, by choosing a pre-printed reply to a query, that he could perform the tasks of a captain "without accommodation." Additionally, the following question appeared on the application for employment: "The Rehabilitation Act of 1973 provides that all applicants and employees be offered the opportunity to identify themselves as handicapped. Do you consider yourself handicapped?" To that question, Folse replied, "No." The employer made no further inquiries on the application concerning Folse's health and did not inquire as to any preexisting medical conditions.

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Bluebook (online)
873 So. 2d 718, 2004 WL 326211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/folse-v-gulf-tran-inc-lactapp-2004.