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Hines v. Southern States Offshore, Inc.

United States District Court, W.D. Louisiana, Lafayette Division

November 17, 2017

BENJAMIN LEE HINES, SR. AND ANDRIUS DAMONE VITTO
v.
SOUTHERN STATES OFFSHORE, INC.

          WHITEHURST MAGISTRATE JUDGE.

          MEMORANDUM RULING

          ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.

         Before 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 medical expenses.

         I. Background

         A. Factual Background

         On September 27, 2014, Hines and Andrius Vitto (“Vitto”) (collectively, “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].

         B. Procedural History

         Plaintiffs 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].

         II. Legal Standard

         Federal 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.”[1] 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.

         If the 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.

         III. Law and Analysis

         A. Hines's Economic Loss

         Hines 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 2].

         In its 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].

         1. Evidentiary Burden

         SSO 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].

         Although 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.

         2. Hines's Failure to Report His Business Income on His Tax Returns

         Hines 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 4-5].

         The 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)).

         While 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.

         The 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 ...


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