United States District Court, W.D. Louisiana, Lafayette Division
BENJAMIN LEE HINES, SR. AND ANDRIUS DAMONE VITTO
SOUTHERN STATES OFFSHORE, INC.
WHITEHURST MAGISTRATE JUDGE.
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.
the Court are a Motion for Partial Summary Judgment Regarding
Hines's Claim for Economic Loss [Record Document 49], a
Motion for Partial Summary Judgment Regarding Plaintiffs'
Claims for Past Medical Expenses [Record Document 48], and a
Motion in Limine Regarding Past Medical Expenses Paid by
Third Party Insurer [Record Document 38], filed by Defendant,
Southern States Offshore, Inc. (“SSO”). The
respective parties have filed opposition and reply briefs to
the motions, all of which have been reviewed by the
undersigned. For the reasons discussed below, the motions are
DENIED. Because Benjamin Hines, Sr.
(“Hines”) has produced sufficient evidence of his
income from his part-time business to survive summary
judgment, the Court denies SSO's motion regarding his
economic loss claim. Because the subrogation provisions in
Plaintiffs' insurance contracts do not prevent Plaintiffs
from recovering the “write-off” amounts, the
Court denies SSO's motion in limine and motion for
summary judgment regarding Plaintiffs' claims for past
September 27, 2014, Hines and Andrius Vitto
“Plaintiffs”) were fishing from Hines's
recreational fishing vessel near Intracoastal City in
Vermillion Parish. [Record Document 2 at 2]. They allege that
the M/V Southern Belle, a vessel owned by SSO, traveled along
the waterway at an excessive speed, creating a wake that
swamped Hines's vessel. [Record Document 2 at 2-3].
According to Plaintiffs, Hines was thrown around in the boat,
and Vitto was thrown out of the boat entirely; both suffered
various physical injuries. [Record Document 2 at 3].
Plaintiffs allege that the negligence of SSO or its employees
caused their injuries. [Record Document 2 at 3-4].
filed the instant personal injury suit under the Court's
maritime jurisdiction pursuant to 28 U.S.C. § 1333
(2012). [Record Document 2 at 1]. SSO filed a motion in
limine, seeking to exclude evidence of past medical expenses
paid by Blue Cross Blue Shield of Louisiana
(“BCBSLA”), Plaintiffs' health insurer.
[Record Document 38]. SSO subsequently filed a motion for
summary judgment on the same issue, urging the Court to find
as a matter of law that because Plaintiffs' insurance
contracts with BCBSLA (“Plan Agreements”)
contained subrogation clauses, Plaintiffs could recover
neither the amounts BCBSLA paid nor the amounts of any
negotiated “writeoff.” [Record Document 48]. SSO
also filed a motion for partial summary judgment seeking
dismissal of Hines's claim for economic loss to his
part-time lawn maintenance business. [Record Document 49].
Rule of Civil Procedure 56(a) directs a court to “grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Summary judgment is
appropriate when the pleadings, answers to interrogatories,
admissions, depositions, and affidavits on file indicate that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). When the burden at trial will rest on the non-moving
party, the moving party need not produce evidence to negate
the elements of the non-moving party's case; rather, it
need only point out the absence of supporting evidence.
See Id. at 322-23.
movant satisfies its initial burden of showing that there is
no genuine dispute of material fact, the nonmovant must
demonstrate that there is, in fact, a genuine issue for
dispute at trial by going “beyond the pleadings”
and designating specific facts for support. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citing Celotex, 477 U.S. at 325). “This
burden is not satisfied with some metaphysical doubt as to
the material facts, ” by conclusory or unsubstantiated
allegations, or by a mere “scintilla of
evidence.” Id. (internal citations and
quotation marks omitted). However, “[t]he evidence of
the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1985). While
not weighing the evidence or evaluating the credibility of
witnesses, courts should grant summary judgment where the
critical evidence in support of the nonmovant is so weak and
tenuous that it could not support a judgment in the
nonmovant's favor. Little, 37 F.3d at 1075.
Law and Analysis
Hines's Economic Loss
seeks to recover past and future income that he has allegedly
lost as a result of the accident. He has testified that he
operates a lawn care business in addition to his employment
with the St. Mary Parish School Board. [Record Document 49-2
at 3, 49-4 at 1, 52-1 at 1]. According to Hines, his business
grosses $3, 000 per week; before the accident, his net weekly
income from this business was $2, 200, while after the
accident this was reduced to $1, 600 due to increased
expenses and having to hire another person to physically mow
the lawns. [Record Document 52 at 2; 52-2 at 5, 7-10]. Hines
thus alleges that he has lost and will continue to lose $600
per week as a result of the accident. [Record Document 52 at
motion, SSO raises two arguments: (1) that Hines has
presented insufficient evidence to meet his burden of
production; and (2) that he cannot recover this lost income
because he did not report it on his tax returns. [Record
Document 49-1 at 2-3].
argues that Hines “is unable to show any ‘actual
wage losses' as he has never reported this income and has
no way to quantify his income from his lawn business with
credible evidence.” [Record Document 49-1 at 2]. The
credibility of evidence is not an issue on summary judgment
as all inferences must be made in favor of Hines. See
Honore v. Douglas, 833 F.2d 565, 567 (5th Cir. 1987)
(citing Anderson, 477 U.S. 242; Leonard v. Dixie
Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th
Cir. 1987)). Hines has testified to his gross and net income
from his lawn care business. [Record Document 49-2 at 4; 49-4
at 1; 52-1 at 1]. In addition, he presented post-accident
receipts, which reveal a gross business income of $1, 880 for
the week of October 2, 2014 and $1, 692 for the week of
October 9, 2014. [Record Document 52-3]. Although Hines has
presented no documentary evidence of his expenses, he has
testified to their amount. [Record Document 52-2 at 8-10].
there is a discrepancy between Hines's testimony that his
business grosses $3, 000 per week and the much lower gross
reflected in the receipts, it is not the function of summary
judgment to resolve this discrepancy. See Sanchez v.
Young Cty., 866 F.3d 274, 282 (5th Cir. 2017) (citing
Devon Enters., L.L.C. v. Arlington Indep. Sch.
Dist., 541 Fed.Appx. 439, 442-43 (5th Cir. 2013)).
Regardless of the exact amount of lost business income, Hines
has met his burden of production that he earned income from
his lawn care business and that this income has been reduced
because his injuries require him to hire another person to
physically mow the lawns. However, in order to bear his
burden of proof at trial, Hines will still have to
demonstrate by a preponderance of the evidence the precise
difference between his pre-accident and post-accident
business income and the portion of that difference
attributable to his injuries.
Hines's Failure to Report His Business Income on His Tax
did not report the income from his lawn care business on his
tax returns. [Record Documents 49-4 and 52-1 at 2]. SSO
argues that he cannot recover the loss of any unreported
income, [Record Document 49-1 at 2-3], while Hines argues
that the lack of tax records is not fatal to his case because
income may be proven by other means, [Record Document 52 at
instant case has been brought under general maritime law.
[Record Document 2 at 1]. Under maritime law, calculating
lost income begins by identifying the plaintiff's gross
income, then adding the value of any fringe benefits
received, and then subtracting “amounts the wage earner
would have been required to pay, such as income tax and work
expenses.” Culver v. Slater Boat Co. (Culver
II), 722 F.2d 114, 117 (5th Cir. 1983), overruled in
part on other grounds, Monessen Sw. Ry. Co. v.
Morgan, 486 U.S. 330 (1988). As a result of this
calculation, “an award for lost wages under the general
maritime law must be based upon after-tax earnings.”
Henry v. Candy Fleet Corp., Civ. A. No. 98-1747,
2001 WL 121913, at *10 (E.D. La. Feb. 12, 2001) (citing
Myers v. Griffin-Alexander Drilling Co., 910 F.2d
1252, 1255 (5th Cir. 1990)).
tax returns may be “the single best source of evidence
on the subject of future earnings, ” Bell v. New
Hampshire Ins. Co., Civ. A. No. 07-138, 2008 WL 2308824,
at *4 (E.D. La. June 3, 2008), general maritime law does not
require tax returns in order to recover lost wages. Rather,
what is required is that a plaintiff be awarded only the net
income that she would have received after deducting taxes and
work expenses. Culver II, 722 F.2d at 117.
Therefore, Hines can recover lost income even if he did not
report that income on his tax returns, though his recovery is
limited to his after-tax income; it will be Hines's
burden at trial to establish what his after-tax income would
have been had he reported his business income.
cases upon which Defendant relies do not stand for the
proposition that tax returns are a necessary predicate to an
award of lost wages. In Tran v. Abdon Callais Offshore,
LLC, a maritime personal injury case in which the
plaintiffs sought to recover lost wages, the plaintiffs'
experts calculated Tran's lost wages based on the average
wages for similar workers rather than on Tran's own wage
history. Civ. A. No. 12-0999, 2014 WL 12538905, at *1-2 (E.D.
La. Sept. 22, 2014). Finding that average wages would not
establish the extent of Tran's losses, the district court
found that Tran's “tax returns should be used as
evidence of the ...