United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
following motion is before the Court: Motion for Partial
Summary Judgment (Rec. Doc. 24) filed by plaintiff Mary
Fairley. Defendant ART Catering, Inc. opposes the motion. The
motion is before the Court on the briefs without oral
late Mr. Ronnie Fairley was a Jones Act seaman employed by
defendant ART Catering, Inc. in July and August 2015. Fairley
was assigned to duties aboard the D/S TITANIUM
EXPLORER. Fairley’s last day on the vessel was
August 7, 2015. On the night of August 7-8, 2015, Fairley
presented at the emergency room with irregular heartbeat and
labored breathing. He was diagnosed with right foot gangrene,
cellulitis of the foot, and sepsis. From August 8, 2015
through August 22, 2015, the date of his death,
Fairley’s condition was grave and he remained
hospitalized. Fairley’s medical bills totaled nearly
$300,000. The sole issue presented by Plaintiff’s
motion for partial summary judgment is whether ART is
obligated to pay cure for the August 8-22, 2015
to Plaintiff, Fairley was in the course and scope of his
employment aboard the vessel when he fell ill. Plaintiff
points out that Fairley was already suffering from a serious
infection and gangrene when he presented at the emergency
room on the same day that he departed the vessel.
Given the advanced stage of the infection when Fairley was
first hospitalized, Plaintiff contends that ART has no
legitimate basis to contest that he fell ill while “in
the service of the vessel.”
judgment is appropriate only if "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any," when viewed
in the light most favorable to the non-movant, "show
that there is no genuine issue as to any material fact."
TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759
(5th Cir. 2002) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a
material fact is "genuine" if the evidence is such
that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477
U.S. at 248). The court must draw all justifiable inferences
in favor of the non-moving party. Id. (citing
Anderson, 477 U.S. at 255). Once the moving party
has initially shown "that there is an absence of
evidence to support the non-moving party's cause,"
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986),
the non-movant must come forward with "specific
facts" showing a genuine factual issue for trial.
Id. (citing Fed. R. Civ. P. 56(e); Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587
(1986)). Conclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and
legalistic argumentation do not adequately substitute for
specific facts showing a genuine issue for trial.
Id. (citing SEC v. Recile, 10 F.3d 1093,
1097 (5th Cir. 1993)).
motion is DENIED as to the cure obligation. As ART Catering
has emphasized in its memoranda, Plaintiff did not plead a
claim for cure. In fact, medical expenses are not an element
of damages prayed for in the complaint. Plaintiff cannot
obtain summary judgment on a claim that is not pending. And
while the Court agrees with Plaintiffs contention that many
of the issues that ART Catering makes in its opposition are
irrelevant (or at least merely dilatory) to the question of
whether cure would be owed, the Court is persuaded that
Plaintiffs motion is premature nonetheless.
and for the foregoing reasons;
ORDERED that the Motion for Partial Summary Judgment (Rec.
Doc. 24) filed by plaintiff Mary Fairley is GRANTED IN PART
AND DENIED IN PART as explained above.
 The motion was originally scheduled
for submission on June 14, 2017 but both parties were granted
leave to file supplemental memoranda, the last of which was
filed on July 17, 2017.
 Plaintiff Mary Fairley was Ronnie
Fairley’s spouse and is the personal representative of
his estate. Ms. Fairley testified that Ronnie Fairley was
employed by ART Catering for 11-12 years. Although the issue
of seaman status was raised as part of Plaintiff’s
motion for partial summary judgment, ART Catering does not
contest seaman status. This aspect of Plaintiff’s
motion will be granted.
 ART Catering advises that all of
Fairleys medical expenses were paid by his medical insurer
and the insurer has not intervened to date. ART Catering also
advises that it ...