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Mullen v. Daigle Towing Service, L.L.C.

United States District Court, E.D. Louisiana

January 8, 2020


         SECTION "F"



         Before the Court is the plaintiff's motion for summary judgment to compel payment of maintenance and cure. For the reasons that follow, the motion is DENIED without prejudice as premature.


         This Jones Act litigation arises from a seaman's claim that he injured his lower back falling on the deck of a barge sometime in early December 2018. He did not report the incident or seek treatment until months later. In February 2019, when he was diagnosed with cancer, he quit his job to undergo chemotherapy treatment. It was then -- months after the alleged slip and fall -- when he first sought treatment for an alleged back injury; since in remission and undergoing conservative treatment for the alleged employment-related injury, he now seeks to compel his former employer to pay maintenance and cure.

         In 2018, Daigle Towing Service, LLC employed Mark Mullen as a deckhand aboard the M/V MISS LAURIE. “[S]omewhere in the beginning of December” of that year -- Mr. Mullen does not recall the date of the alleged incident[1] -- Mr. Mullen alleges that he slipped and fell on the wet deck of a barge in the tow of the MISS LAURIE at Tiger Fleet in Baton Rouge, Louisiana.[2] He did not report the incident. Nor did he seek medical attention in the days (or weeks) after the fall. The onset of back pain, he alleges, was not immediate.

         Mr. Mullen testified that his back began hurting days after he finished his shift, while he was off the boat staying in a hotel.[3] Notwithstanding his alleged back pain -- while performing his regular duties, he alleges his back would worsen; while off, it would improve -- he says he continued to work his regular hitches (14 days on/7 days off).[4]

         In February 2019, Mr. Mullen says he sought medical attention for the back pain he attributed to his alleged fall.[5] After some x-rays and lab work, on February 25, 2019, Mr. Mullen was diagnosed with cancer, non-Hodgkin's lymphoma. He stopped working that same month, [6] underwent treatment, and is now in remission. However, he claims that his back pain persists and prevents him from performing any type of manual labor.

         In May 2019, Mr. Mullen was evaluated by Dr. Pedro Romaguera, who recommended an MRI of his lumbar spine. Dr. Romaguera also recommended an orthopedic consultation and determined that Mr. Mullen was not able to work. Mr. Mullen continues under the care of Dr. John Logan, an orthopedic surgeon, who has instructed Mullen not to return to work, recommended that he undergo (and performed) facet injections at ¶ 4-5 and L5-S1 bilaterally, and opined that he has not reached maximum medical improvement from the alleged work-related injury.

         On May 15, 2019, Mr. Mullen's attorney, by letter to Daigle Towing, demanded payment of maintenance and cure benefits. Five months after the alleged incident occurred, this was the first notice to Daigle Towing that Mr. Mullen was claiming to have suffered a work-related injury sometime in “December of 2018.” Twice more since then, Mr. Mullen's attorney has demanded maintenance and cure. Daigle Towing propounded discovery and launched an investigation into Mr. Mullen's claim for maintenance and cure. That investigation is ongoing.

         On July 31, 2019, Mullen sued Daigle Towing Service, LLC, asserting Jones Act negligence, unseaworthiness and seeking to recover maintenance and cure as well as punitive damages associated with Jones Act negligence, unseaworthiness, and arbitrary failure to pay maintenance and cure.[7] In November 2019, Mullen was granted leave to amend his complaint to add Lafarge North America, Inc. as a defendant; Mullen alleges that Lafarge's negligence and the unseaworthiness of its barge contributed to his injury.

         To date, Daigle Towing has not paid maintenance or cure. Mr. Mullen now seeks summary judgment compelling payment.


         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No. genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only "if the evidence is such that a ...

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