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Luwisch v. American Marine Corp.

United States District Court, E.D. Louisiana

June 24, 2018

HENRY LUWISCH, Plaintiff
v.
AMERICAN MARINE CORPORATION, Defendant

         SECTION: “E” (5)

          ORDER AND REASONS

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE

         Plaintiff Henry Luwisch filed a complaint in this Court seeking damages and maintenance and cure benefits for injuries allegedly sustained while working for Defendant American Marine Corporation aboard the M/V AMERICAN CHALLENGER.[1] In this motion, [2] Defendant seeks partial summary judgment that Plaintiff is not entitled to maintenance and cure benefits pursuant to McCorpen v. Central Gulf Steamship Corporation.[3] This matter is set for a bench trial on July 23, 2018.

         LAW AND ANALYSIS

         An employer's duty to provide maintenance and cure to a seaman injured in the service of a vessel is “practically absolute. ”[4] Consequently, a seaman's burden of proof for a maintenance and cure claim is “slight, ” and he need only establish that he was injured “while subject to the call of duty as a seaman.”[5] At the same time, an employer is entitled to investigate a seaman's claim for maintenance and cure, and rely on certain defenses to deny benefits when appropriate.[6] One such defense is the McCorpen defense, which precludes a seaman's recovery of maintenance and cure when he intentionally conceals a pre-existing medical condition from his employer.[7]

         To prevail on a McCorpen defense, an employer must prove three elements:

(1) the seaman intentionally misrepresented or concealed medical facts;
(2) the non-disclosed facts were material to the employer's decision to hire the seaman; and
(3) a connection exists between the withheld information and the injury complained of in the lawsuit.[8]

         Because the employer bears the burden of proving each prong of this affirmative defense at trial, the burden on the employer at the summary judgment stage is to demonstrate a lack of disputed issues of material fact with respect to each prong.[9] A triable issue of fact exists when it is unclear whether an employer's hiring decision would be affected by knowledge of a potential employee's previous injuries.[10]

         AMC asserts it would not have employed Luwisch if his diagnosis of degenerative disc disease had been disclosed prior to his hiring. AMC offers as evidence a sworn declaration by Robert Shahnazarian, President of AMC, in which he states Luwisch “would not have been offered employment as Chief Engineer” if he had disclosed his medical history and physical condition during his pre-employment interview.[11]

         AMC stated in its supplemental memorandum that AMC typically requires candidates to complete an application packet that contains a health questionnaire.[12] This questionnaire includes detailed questions such as:

Have you ever been injured in a motor vehicle accident? If yes, specify when and explain circumstances.
Do you have any problem that would restrict or make more difficult repetitive lifting or any other heavy physical ...

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