Recent Personal Injury and Car Accident News and Cases related to Hawaii
On June 29, 2015, the Hawaii Supreme Court rendered its decision in the case of St. Paul Fire and Marine Ins. Co. v. Liberty Mutual Insurance, Hi. Sup. Ct. Case No SCCQ-14-0000727 (June 29, 2015). This case arose out of a wrongful death personal injury case handled by this office which resulted in a $4.1 million verdict in favor of our clients - even though Liberty Mutual, the primary liability insurer, never offered anything even close to its policy limits of $1 million. St. Paul - who had to pay our clients everything recovered in excess of the initial $1 million - claimed that Liberty Mutual committed bad faith towards it by failing to settle within its $1 million policy limits. The Hawaii Supreme Court agreed and found that an excess insurer has claims for bad faith against a primary insurer.
JONES ACT- TABLE OF CONTENTS
The Jones Act
VI. DAMAGES B. Damages for Personal Injury 1. Elements of Damages
Under 46 USCS Appx § 688, plaintiff is entitled to seek recovery for impairment of future earning capacity, lost wages, medical expenses, and pain and suffering. Wilson v Western Oceanic, Inc. (1982, SD Tex) 540 F Supp 228.
Under general maritime law, punitive damages based on allegations of willful, reckless, and malicious misconduct are recoverable, even where there are no claims of personal injury or unseaworthiness. CEH, Inc. v FV "Seafarer" (1994, DC RI) 153 FRD 491, summary op at (DC RI) 14 R.I.L.W. 871.
Where there was no legal theory which would even arguably allow remand of Jones Act case to federal court, Rule 11 sanctions would be granted against defendant; because defendant did not cite single statute granting it right of removal, its removal petition was patently frivolous and submitted solely to harass. Toups v Archer-Daniels-Midland Co. (1994, SD Tex) 155 FRD 588.
In action brought under 46 USCS Appx § 688, assessment of damages should include consideration of plaintiff's life expectancy, annual salary at time of injury, employment, if any, after injury, disability incurred, susceptibility of injured area to subsequent injury, and consequences of such injury which would permit finding of great pain in future, pain, suffering and disfigurement, and surgical procedures necessary to restore injured area. Baldwin v Huffman Towing Co. (1977, 5th Dist) 51 Ill App 3d 861, 9 Ill Dec 469, 366 NE2d 980.
467. Aggravation of pre-existing injury
Injured seaman is entitled to damages for all injuries occasioned by wrong, though aggravated by his previous maladies. The Jefferson Myers (1930, CA2 NY) 45 F2d 162, 1930 AMC 1911.
Plaintiff-seaman having been twice injured, and defendant not being liable for first injury, measure of damages would be such sum as would fairly and reasonably compensate plaintiff for aggravation of his then existing condition. Pittsburgh S.S. Co. v Palo (1933, CA6 Ohio) 64 F2d 198.
468. Loss of consortium, society, and support
Jones Act (46 USCS Appx § 688) does not allow recovery for loss of society claims based upon negligence, and thus, wife of seamen suing under Act cannot base loss of society claims on negligence under general maritime law. Beltia v Sidney Torres Marine Transport, Inc. (1983, CA5 La) 701 F2d 491.
Wives may not recover damages for loss of society and loss of consortium in their own actions filed under Jones Act. Smith v Trinidad Corp. (1993, CA9 Cal) 992 F2d 996, 93 CDOS 3390, 93 Daily Journal DAR 5842.
Admiralty court may not extend remedies available in unseaworthiness action under general maritime law to include punitive damages or damages for loss of parental or spousal society. Horsley v Mobil Oil Corp. (1994, CA1 Mass) 15 F3d 200, 1994 AMC 1372, summary op at (CA1 Mass) 22 M.L.W. 1148, 14 R.I.L.W. 797.
Loss of consortium is not cognizable under general maritime law. Nichols v Petroleum Helicopters (1994, CA5 La) 17 F3d 119.
Jones Act (46 USCS Appx § 688) provides no cause of action with respect to wife's loss of consortium nor does it provide for recovery by Seaman's children for loss of support, society, affection and companionship. Westcott v McAllister Bros., Inc. (1978, SD NY) 463 F Supp 1039.
Parents of injured seaman may not recover for loss of society or consortium under Jones Act, where injury was caused by negligence of ship owners and marine contractors, rather than from unseaworthiness of vessel, and where parents were non-dependent on seaman. Toups v Du-Mar Marine Contractors, Inc. (1985, ED La) 644 F Supp 475.
In action for unseaworthiness, wife is entitled to award for loss of society of seaman who was partially disabled carrying cable on river tugboat where, after injury, seaman was withdrawn, moody, depressed, and affected by intake of alcohol and medication. Burden v Evansville Materials, Inc. (1986, WD Ky) 636 F Supp 1022.
Seaman's wife's claim for recovery for her alleged damages for loss of consortium, services, and society based upon injuries sustained by her husband must be dismissed, despite argument that wife was Seaman's dependent unlike nondependent parents denied similar claim in recent Supreme Court case, because Supreme Court clearly indicated by general language that there is no recovery for nonpecuniary damages for injury or death of seamen under 46 USCS Appx § 688 or general maritime law. Turley v Co-Mar Offshore Marine Corp. (1991, ED La) 766 F Supp 501.
Husband of crewmember injured in course of employment as cook on supply vessel has loss of consortium claim dismissed, where no general maritime claim for loss of consortium or society preexisted 46 USCS Appx § 688, because desire for uniformity and deference to legislative environment of times compels conclusion that loss of society or consortium damages must be rejected in context of personal injury and wrongful death unseaworthiness claims. West v Zapata Gulf Marine Corp. (1991, ED La) 766 F Supp 502.
Injured Seaman's spouse's claim for loss of consortium, service, and society is dismissed, where nonpecuniary damages such as loss of consortium and society are unavailable under 46 USCS Appx § 688, because, inasmuch as Supreme Court clearly ruled that deceased Seaman's spouse has no claim for nonpecuniary damages under either § 688 or general maritime law, jurisprudence has firmly agreed that nonfatally injured Seaman's spouse has no such claim either. Donaghey v Ocean Drilling & Exploration Co. (1991, ED La) 766 F Supp 503.
Consortium-type claims for wrongful death of seamen must be dismissed, where estates of seamen killed in steamship fire assert claims for loss of society, loss of consortium, loss of companionship, loss of love and affection, loss of comfort, grief and mental anguish, and punitive damages, because Death or High Seas Act (46 USCS Appx § § 761 et seq.) expressly limits recoverable losses to pecuniary ones, Jones Act (46 USCS Appx § 688) has been interpreted not to cover nonpecuniary claims, and general maritime law also precludes such claims in case such as this, in interest of uniformity. Re Waterman S.S. Corp. (1992, ED La) 780 F Supp 1093, 1992 AMC 1035.
Loss of society and consortium claims must be dismissed, where Seaman's wife seeks recovery based on emotional and psychological injuries her husband sustained as captain of government research vessel, because Supreme Court recently restored uniform rule that loss of society is not compensable in wrongful death action under 46 USCS Appx § 688 or general maritime law and it would be inconsistent to afford greater rights to spouse of seaman who survives than to survivor of fatally injured seaman. Nelsen v Research Corp. of University of Hawaii (1992, DC Hawaii) 784 F Supp 770.
Spouse of injured Jones Act seaman may not recover for loss of society and consortium based on general maritime action, where seaman had brought action against employer for personal injuries pursuant to 46 USCS Appx § 688 due to exposure to excessive noise, dust, asbestos, and diesel fuels during his employment, because § 688 limits recovery to pecuniary losses, regardless of whether seaman suffered personal injuries or was killed. Lane v G & C Towing Co. (1992, SD W Va) 798 F Supp 358.
Wife's cause of action for loss of consortium and spousal services is clearly barred, where basis of her claim is her seaman husband's shipboard slip-and-fall injury, because 1990 Supreme Court opinion and even prior Ninth Circuit law held that nonpecuniary losses, such as loss of society in this case, may not be recovered under 46 USCS Appx § 688. McNaughton v Exxon Shipping Co. (1992, ND Cal) 813 F Supp 710, 1993 AMC 92.
Wife of employee who was injured while working on vessel may maintain claim for loss of consortium, where employee was not Jones Act seaman but was arguably Sieracki seaman under general maritime law, because in light of recent developments in area, court is unsure as to Fifth Circuit's position on allowability of claims for nonpecuniary damages; court will allow immediate appeal of this order. Bergeron v Atlantic Pac. Marine (1995, WD La) 899 F Supp 1544.
Wife of injured longshoreman can recover under general maritime law for loss of her husband's society caused by negligence of shipowner or unseaworthiness of ship. American Export Lines, Inc. v Alvez, 446 US 274, 64 L Ed 2d 284, 100 S Ct 1673).
Remedies applicable to seamen under Jones Act applied to injuries suffered by derrick hand on offshore drilling rig; nevertheless, derrick hand's wife could not maintain action under Jones Act for loss of society of husband, in that Act explicitly provides only for pecuniary damages. Gaspard v Transworld Drilling Co. (1985, La App 3d Cir) 468 So 2d 692, cert den (La) 474 So 2d 1304, cert den (US) 89 L Ed 2d 607, 106 S Ct 1382.
469. Loss of earnings
In compensatory action under 46 USCS Appx § 688 for personal injury, both cash value of room and board and medical expenses are provable as part of earnings lost prior to suit. Petition of Oskar Tiedemann & Co. (1966, CA3 Del) 367 F2d 498, supp op (CA3 Del) 367 F2d 505, cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 953 and cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 957, reh den 386 US 1000, 18 L Ed 2d 354, 87 S Ct 1303.
Award of $ 75,000 for back injury cannot be fairly characterized as "grossly excessive" where plaintiff was unable to work for more than three months after injury, and where award was within wide range of arguable appropriateness. Toucet v Maritime Overseas Corp. (1993, CA1 Puerto Rico) 991 F2d 5.
470. Loss of future earnings
Both Seaman's wages and cash value of his living allowance are recoverable in negligence action under 46 USCS Appx § 688 as lost earnings, and costs of cure are recoverable as medical expenses and unlike recovery for maintenance and cure under general maritime law, recovery for these items in negligence action is not confined to immediate and definitely ascertainable needs, nor, ultimately, to period of maximum cure. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 4 ALR3d 517.
Injured seaman is entitled to reimbursement for any impairment of earning capacity in suit under 46 USCS Appx § 688; if injuries are permanent in nature and result in impairment of earning capacity, seaman is entitled to reimbursement for such impairment including, but not limited to, probable loss of future earnings measured on basis of life expectancy at time of injury. Downie v United States Lines Co. (1966, CA3 Pa) 359 F2d 344, cert den 385 US 897, 17 L Ed 2d 130, 87 S Ct 201.
In action under 46 USCS Appx § 688, impairment of earning capacity was factor to be considered in determining award for damages. Stafford v Perini Corp. (1973, CA1 Mass) 475 F2d 507.
Jury failure to make award for loss of future earnings was not inconsistent with "special findings" that included loss of wages to trial date, where seaman lost useful vision in one eye after contracting gonnorrhea after engaging in sexual intercourse in foreign port. Ressler v States Marine Lines, Inc. (1975, CA2 NY) 517 F2d 579, cert den 423 US 894, 46 L Ed 2d 126, 96 S Ct 193.
Loss of future earning capacity element of damages under 46 USCS Appx § 688 must be projected from date of trial and union contract rates in effect at that time are reliable source of data on prevailing wage rate and use of contract rates in effect at time of trial does not introduce inflation element because Seaman's future earning capacity is frozen for purposes of these calculations at base year rate. Davis v Hill Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5 Tex) 554 F2d 1065 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
Jury award for future lost wages of injured roustabout was supported by record where there was testimony that hourly wage rate figure used was paid by major oil companies for such work and that below-market discount rate used was appropriate. Knight v Texaco, Inc. (1986, CA5 La) 786 F2d 1296.
District Court did not abuse its discretion in ignoring evidence of injured diver's pulmonary condition which allegedly would have limited his future as diver where District Court found that diver would have been employed as diving supervisor when his diving career ended. Pickle v International Oilfield Divers, Inc. (1986, CA5 La) 791 F2d 1237.
Standards of Federal Employers' Liability Act apply under Jones Act to determine whether back injury suffered by seaman in carrying cable on river tug rendered seaman "disabled"; where seaman is unable to sit, stand, climb, balance, or stoop for extended periods of time or to do heavy lifting, he is "disabled" from performing usual occupation of riverboat deckhand or harbor pilot but not from all gainful employment and, thus, it is proper to reduce Seaman's future earnings as harbor pilot by: (1) amount he could earn working at sedentary or light job he is able to do, and (2) $ 25,000 to compensate for "intangible factors" such as possible aggravation of injury by hunting trip and sneezing episode, realistic possibilities of securing and maintaining full-time pilot position in depressed shipping economy, and Seaman's degenerative disc disease, prior back injury, lack of tangible skills, limited formal education, and past work history of 13 jobs in 13 years. Burden v Evansville Materials, Inc. (1986, WD Ky) 636 F Supp 1022.
Any alleged error by Seaman's expert in calculation of Seaman's entitlement to future lost income under 46 USCS Appx § 688 was harmless, where proper base figure for computation of such recovery is Seaman's gross earnings at time of accident, because jury's award of $ 195,000 was clearly based on calculation by barge line and towage company's expert, which equaled $ 194,090.75. Turner v Inland Tugs Co. (1988, ED La) 689 F Supp 612.
471. --Seaman earning more after accident
Award of future earnings is not excessive because injured seaman is now employed at salary in excess of amount he received when he sustained injury where court based its award for loss of future earnings on loss of employment opportunities as opposed to actual reduction in earnings. Wood v Diamond M Drilling Co. (1982, CA5 Tex) 691 F2d 1165, cert den 460 US 1069, 75 L Ed 2d 947, 103 S Ct 1523.
Impairment of earning capacity is determined by impairment of particular employment at time of injury and it is immaterial that seaman was earning more in wages after accident. Faudree v Iron City Sand & Gravel Co. (1962, WD Pa) 201 F Supp 447, affd (CA3 Pa) 315 F2d 647.
472. Medical expenses
Recovery of medical expenses in action under 46 USCS Appx § 688 is not prohibited as long as plaintiff is not permitted additional recovery for same expenses under count for maintenance and cure. Butwinski v Pennsylvania R. Co. (1957, CA2 NY) 249 F2d 644.
In action under 46 USCS Appx § 688, seaman is entitled to recover for medical expenses which have been or are likely to be incurred. Downie v United States Lines Co. (1966, CA3 Pa) 359 F2d 344, cert den 385 US 897, 17 L Ed 2d 130, 87 S Ct 201.
Rig owner's obligation to continue payments for maintenance and cure to injured seaman ended on date when medical evidence indicated that seaman had reached maximum cure. Thomas v Diamond M Drilling Co. (1978, CA5 La) 569 F2d 926.
In action by injured seaman under 46 USCS Appx § 688, jury erred in awarding maintenance and cure beyond point at which medical expert testified that plaintiff reached maximum medical recovery. Holmes v J. Ray McDermott & Co. (1984, CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682.
Seaman accidentally soaked with toxic chemicals was entitled to recover for continuing expense of periodic medical checkups to insure early detection and treatment of possible cancerous condition. Hagerty v L & L Marine Services, Inc. (1986, CA5 La) 788 F2d 315.
In action to recover damages under 46 USCS Appx § 688, judge may award damages without specifically detailing basis for arriving at figure; medical and funeral expenses would be in addition to general, undifferentiated award. Williamson v Western-Pacific Dredging Corp. (1969, DC Or) 304 F Supp 509, affd (CA9 Or) 441 F2d 65, cert den 404 US 851, 30 L Ed 2d 91, 92 S Ct 90.
It is now well established that injured seaman can recover in damages under 46 USCS Appx § 688 for medical expenses. Martinez v Star Fish & Oyster Co. (1974, SD Ala) 386 F Supp 560.
Seaman, injured carrying cable on river tugboat, is entitled under Jones Act to full medical expenses from date of injury to date of "maximum recovery" as part of "cure and maintenance" but medical expenses incurred after date of "maximum recovery" and future medical expenses are not part of cure and are subject to reduction based on Seaman's contributory negligence. Burden v Evansville Materials, Inc. (1986, WD Ky) 636 F Supp 1022.
473. Mental anguish
Award for damages for personal injury may include element of mental anguish. Blanco v Phoenix Compania De Navegacion, S. A. (1962, CA4 Va) 304 F2d 13, 9 ALR3d 410.
Mental pain and anguish of decedent's beneficiaries is not compensable in wrongful death action under Jones Act (46 USCS Appx § 688); but mental pain and suffering of decedent is compensable injury in such action under § 688 where accompanied by injury of physical nature. Cook v Ross Island Sand & Gravel Co. (1980, CA9 Or) 626 F2d 746.
Seaman accidentally soaked with toxic chemicals was entitled to recover damages for fear or anxiety due to possibility of contracting cancer as aspect of mental anguish; with or without physical injury or impact, plaintiff is entitled to recover damages for serious mental distress arising from fear of developing cancer where fear is reasonable and causally related to defendant's negligence. Hagerty v L & L Marine Services, Inc. (1986, CA5 La) 788 F2d 315.
Bystander seaman cannot recover under Jones Act, where he was not personally in danger, but witnessed injuries to another person, his half-brother, who was crushed to death between 2 vessels; liability under Act for emotional injury to bystander cannot be sustained because such construction would represent major departure from existing jurisprudence, as well as vast extension of potential employer exposure to damages. Gaston v Flowers Transp. (1989, CA5 La) 866 F2d 816.
Although a seaman may recover under Jones Act for purely emotional injury, recovery will not be allowed where injury was not reasonably foreseeable consequence of negligence. Plaisance v Texaco, Inc. (1991, CA5 La) 937 F2d 1004.
Psychiatric treatment of tugboat captain, who aided rescue of worker on towed barge, for posttraumatic stress syndrome, was not reasonably foreseeable consequence of defendant's negligence and therefore does not support claim under Jones Act. Plaisance v Texaco, Inc. (1992, CA5 La) 966 F2d 166.
Mere witnessing of accident, without physical contact, is insufficient to permit suit for mental anguish. Ainsworth v Penrod Drilling Corp. (1992, CA5 La) 972 F2d 546.
Where cause of action has been pleaded without particularity and with lack of attention, court will not accept invitation to clarify issue of whether physical injury is necessary to award damages for emotional distress under Jones Act. Ellenwood v Exxon Shipping Co. (1993, CA1 Me) 984 F2d 1270, 1 ADD 414, 2 AD Cas 415, 8 BNA IER Cas 364, 60 CCH EPD P 41964, cert den 508 US 981, 125 L Ed 2d 682, 113 S Ct 2987.
Sailor could not recover damages for alleged mental anguish due to being left by ship in foreign port, since there was no personal injury. Sellers v United States Lines Co. (1949, DC Cal) 89 F Supp 254.
In action under 46 USCS Appx § 688, element of mental anguish as part of award for damages is proper. Zanca v Delta S.S. Lines, Inc. (1965, ED La) 246 F Supp 127.
Seaman's claim under Jones Act (46 USCS Appx § 688) is denied, where seaman claims he suffers from post-traumatic stress disorder sustained from witnessing death of his half-brother who slipped from Seaman's grasp and was crushed between barges due to alleged negligence of vessel's captain, but sets forth no evidence to support his claim, because no circuit courts have addressed this issue to date and even though Supreme Court has indicated Jones Act court may refer to state law to decide new issues concerning recovery for wholly emotional injuries, seaman has not presented facts sufficient to survive motion for directed verdict. Gaston v Flowers Transp. (1987, ED La) 675 F Supp 1036.
Employer is granted summary judgment in Seaman's action seeking recovery for emotional injuries incurred from witnessing accident in which fellow crew member was killed, since seaman does not claim that he was physically injured or believed he was in physical danger, and there is no cause of action under 46 Appx USCS § 688 for purely emotional injuries incurred from witnessing injury to another. Kiffe v Neches-Gulf Marine, Inc. (1989, ED Tex) 709 F Supp 743.
Tugboat captain's claim for emotional injury under 46 USCS Appx § 688 must fail, even though captain witnessing fire in vicinity of his tugboat perceived himself to be in actual danger, where fire was extinguished, boat was not damaged, no one was injured, and other persons even found safe haven on captain's boat, because subjective belief that seaman was in danger, standing alone, is insufficient to give rise to cause of action for emotional injury. Plaisance v Texaco, Inc. (1990, ED La) 735 F Supp 686.
Crane operator may proceed with Jones Act (46 USCS Appx § 688) claim for purely emotional injuries suffered on isolated, self-supporting jackup rig unit after 2 severe explosions rudely awakened him at 3 a.m. and he realized and saw that he was within 50 to 75 feet of flames fueled by open gas leak, because whether he was within "zone of danger" is question of fact for jury. Anselmi v Penrod Drilling Corp. (1993, ED La) 813 F Supp 436, 1993 AMC 1617.
Claim for intentional infliction of emotional distress by former crew member against vessel owner under 46 USCS Appx § 688, for injuries sustained as result of excessive, mandated overtime and abuse and harassment by superior officers and other crew members, is denied summarily, because allegations of mistreatment on board vessel, assuming they are true, fail to rise to level necessary to raise genuine issue of intentional infliction of emotional distress. Yballa v Sea-Land Servs. (1995, DC Hawaii) 919 F Supp 1428, 1996 AMC 283.
474. Pain and suffering
Damage award under 46 USCS Appx § 688 may include element of pain and suffering if it is shown that injured person, while he lived, underwent compensable physical injury resulting in pain and suffering. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622.
In action under 46 USCS Appx § 688, seaman is entitled to recover for pain, suffering, discomfort and inconvenience. Downie v United States Lines Co. (1966, CA3 Pa) 359 F2d 344, cert den 385 US 897, 17 L Ed 2d 130, 87 S Ct 201.
In action under 46 USCS Appx § 688, damage award may include element of pain and suffering. Stevens v Seacoast Co. (1969, CA5 Miss) 414 F2d 1032.
Jury is entitled to award plaintiff full tort damages under either 46 USCS Appx § 688 count, maintenance and cure count, or both, as long as it does not award double recovery for any element of damages where jury could reasonably have concluded that plaintiff, on number of occasions, suffered pain, nausea, and other symptoms of decompression sickness, reported symptoms to defendant, yet was unreasonably denied treatment in recompression tank. Gaspard v Taylor Diving & Salvage Co. (1981, CA5 La) 649 F2d 372, reh den (CA5 La) 656 F2d 700 and cert den 455 US 907, 71 L Ed 2d 445, 102 S Ct 1252.
Award of $ 300,000 to injured roustabout for pain, suffering, and disability did not shock conscience or exceed maximum amount that reasonable jury could award where roustabout suffered crushed foot requiring surgery to correct nerve disorder and bone displacement, had 35 to 40 percent permanent disability, was unable to stand for more than 3 or 4 hours without suffering from soreness, swelling, and burning sensations, and doctors testified that arthritis was developing in foot, that it would get worse, and that there would be more pain and disability. Knight v Texaco, Inc. (1986, CA5 La) 786 F2d 1296.
Award of $ 459,559.96 for predeath pain and suffering of seaman was excessive, where record revealed that seaman suffered no acute distress until 5 days before his death. De Centeno v Gulf Fleet Crews, Inc. (1986, CA5 La) 798 F2d 138.
Court refuses to adopt per se rule to effect that where personal injury award reflects exact amount of plaintiff's out-of-pocket losses, verdict establishes on its face that jury failed and refused to award compensation for pain and suffering and for disability, and refusal of trial court to grant new trial amounts to abuse of discretion. Milone v Moceri Family, Inc. (1988, CA1 Mass) 847 F2d 35.
When seaman experiences pain, suffering and inconvenience caused by accident, items are recoverable under 46 USCS Appx § 688 based on negligence but not under general maritime action for maintenance and cure. Haywood v Jones & Laughlin Steel Corp. (1952, DC Pa) 107 F Supp 108.
In action to recover for damages under 46 USCS Appx § 688, general damages may be awarded to compensate seaman for pain, distress and discomfort. Yarbough v American Mail Line, Ltd. (1954, DC Cal) 119 F Supp 776.
It is now well established that injured seaman can recover damages under 46 USCS Appx § 688 for pain and suffering. Martinez v Star Fish & Oyster Co. (1974, SD Ala) 386 F Supp 560.
Award for physical pain, mental anguish, and loss of enjoyment of life under Jones Act to seaman partially disabled when his back was injured carrying cable on river tugboat is $ 80,000, subject to reduction on basis of contributory negligence, where, although seaman has serious condition, multiple surgical techniques have been performed by numerous physicians, and seaman has endured both mental anguish and physical pain, many of his complaints of pain are believed to be product of depression created by his inactivity over 5 years since injury and court's observations of seaman over 4 day trial do not support claim of continuing, untreatable pain. Burden v Evansville Materials, Inc. (1986, WD Ky) 636 F Supp 1022.
Seaman's award of $ 100,000 for future pain and suffering will not be disturbed, even though life expectancy tables or other evidence of expected duration of Seaman's life are nevertheless relevant to determination of future pain and suffering and court is troubled by absence of such evidence, because, unlike pecuniary damages, noneconomic damages may be largely supportable on testimony from seaman concerning his pain and suffering and loss of enjoyment of life after accident together with evidence that injuries are permanent and chronic. McKeown v Woods Hole (1998, DC Mass) 9 F Supp 2d 32, 49 Fed Rules Evid Serv 883.
Although shortening of one's life expectancy is not per se compensable element of damages in action for personal injury under 46 USCS Appx § 688, fair and just results can be achieved by resort to rules of damages usually applied in tort actions which allow award and damages commensurate with nature and extent of injuries. Downie v United States Lines Co. (1966, CA3 Pa) 359 F2d 344, cert den 385 US 897, 17 L Ed 2d 130, 87 S Ct 201.
Allowance for future damage under 46 USCS Appx § 688 must take into account earning power of money awarded over term for which it compensates plaintiff. Ivy v Security Barge Lines, Inc. (1978, CA5 Miss) 585 F2d 732, on reh (CA5 Miss) 606 F2d 524, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2927, reh den 448 US 912, 65 L Ed 2d 1173, 101 S Ct 27 and on remand (ND Miss) 89 FRD 322.
Award of $ 240,000 is not excessive where it is based on some $ 30,000 in lost wages, $ 5,000 of anticipated medical expenses, loss of future earnings between $ 155,000 and $ 304,000 and on excrutiating pain and suffering for a short time. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).
Award for loss of life's enjoyment will not be disturbed although such was submitted as separate and simultaneous submission for pain, suffering, and mental anguish where employer's counsel failed to object to such submissions. Wood v Diamond M Drilling Co. (1982, CA5 Tex) 691 F2d 1165, cert den 460 US 1069, 75 L Ed 2d 947, 103 S Ct 1523.
Jones Act does not authorize recovery for loss of consortium in personal injury cases. Lollie v Brown Marine Serv., Inc. (1993, CA11 Fla) 995 F2d 1565, 7 FLW Fed C 589.
Heart attacks are compensable under Jones Act when they are negligently caused by physical stress or extraordinary nonphysical stress, but heart attacks caused by ordinary nonphysical workplace stress are not compensable. Szymanski v Columbia Transp. Co. (1997, CA6 Ohio) 107 F3d 371, 1997 FED App 63P, vacated, reh, en banc, gr (1997, CA6) 1997 US App LEXIS 10389.
In action under 46 USCS Appx § 688, Seaman's "found," which is his room and board while on ship, could be included in his recovery for personal injuries. Jones v Atlantic Refining Co. (1944, DC Pa) 55 F Supp 17, 1944 AMC 787.
JONES ACT- TABLE OF CONTENTS
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