Opinion
CIVIL ACTION NO. 02-2880; SECTION "K" (5)
August 2, 2003
ORDER AND REASONS
Before this Court is Rec. Doc 77, a Motion to Review and Reverse Magistrate Chasez's Order of May 21, 2003 granting Plaintiff Hermenegildo Cordova's Motion for Leave to File Second Amended Complaint (Rec. Doc. 47), brought by the defendants, Crowley Marine Services, Inc., Marine Transport Corporation, The M/V Mormacstar, and ABC Insurance Company ("defendants"). Upon review, the Court DENIES defendants' Motion and AFFIRMS the Magistrate's Order for the reasons that follow.
FACTS AND BACKGROUND
Plaintiff originally filed suit against defendants on June 7, 2000 in United States District Court for the Southern District of Texas as a result of injuries allegedly sustained on July 8, 2001 while working aboard the M/V MORMACSTAR. On November 4, 2002 plaintiff amended his Complaint to add Mormac Tankers, Inc., Marine Transport Lines, Inc. and Marine Personnel Provisioning, Inc. as additional defendants. On March 3, 2003 Crowley Marine Services, Inc. filed an unopposed Motion for Summary Judgment which was granted by the Court on April 2, 2003, thereby dismissing them from the litigation. On March 20, 2003 plaintiff filed a motion to amend his complaint and add a tort claim based on the alleged failure of the defendants to pay maintenance and cure resulting in additional personal injury. This part of the Motion, unopposed by the defendants, was granted by Magistrate Chasez on April 23, 2004, At the same time, plaintiff also sought to add The Steamship Mutual Underwriting Association (Bermuda) Limited (hereinafter "Steamship Mutual") as a defendant pursuant to the Louisiana Direct Action statute. At the hearing held on this matter, defendants opposed plaintiff's attempt. Subsequently, Magistrate Chasez requested additional briefing regarding the issue of whether plaintiff's claims for additional personal injuries resulting from defendants' alleged failure to pay maintenance and cure constitute a tort claim arising under federal or state law. Rec. Doc. 55. Upon receipt and review of the additional briefs submitted by both plaintiff and defendants on this issue, Magistrate Chasez, held that "the failure to pay cure is a tort claim occurring in Louisiana," and granted plaintiff's Motion for Leave to File Second Amended Complaint in a Minute Entry dated May 22, 2003, thereby adding The Steamship Mutual Underwriting Association (Bermuda) Limited to the present action. Rec Doc. 71. It is from this ruling that defendant now appeals.
DISCUSSION
1. Standard of Review
The Federal Rules of Civil Procedure permit district courts to refer nondispositive pretrial matters, including discovery disputes, to federal magistrates. Fed.R.Civ.P. 72(a); see also Eastern District of Louisiana Local Rule 72.1E(A) [hereinafter Local Rules]; 28 U.S.C. § 636(b)(1)(A). A magistrate's ruling on such a nondispositive matter is appealable to the district court. Id. "The district judge to whom the case is assigned . . . shall modify or set aside any portion of the magistrate's order [only if] found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a) (emphasis added); see also Local Rule 74.1M(A); 28 U.S.C. § 636(b)(1)(A). Indeed, the "clearly erroneous" standard requires that the court affirm the decision of the magistrate judge unless "on the entire evidence [the court] is left with a definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)); See also Fed.R.Civ.P. 72(a). The district court may not undertake a de novo review of the magistrate's disposition. See e.g., Merritt v. Int'l Brotherhood of Boilermakers, 649 F.2d 1013, 1017 (5th Cir. Unit A 1981). Under the clearly erroneous standard of review, the review by the district court is circumscribed and the district court is bound by the clearly erroneous rule in reviewing questions of fact. Blair v. Sealift, Inc., 848 F. Supp. 670 (E.D. La. 1994) (citing Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992).
2. Applicability of Louisiana's Direct Action Statute
The Louisiana Direct Action Statute generally allows an injured party to proceed directly against an insurance company which has issued a policy or contract of insurance against the liability of the insured tortfeasor. La.Rev.Stat. Ann. § 22:655; see also Grubbs v. Gulf Intermarine, Inc., 625 So.2d 495, 497 (La. 1993). The Fifth Circuit has previously held that the Louisiana Direct Action Statute clearly applies to marine P I insurance such as the type provided by Steamship Mutual. See Grubbs, 625 So, 2d at 495 (certifying question from the United States Court of Appeal for the Fifth Circuit, 985 F.2d 762). The Direct Action Statute reads in pertinent part:
B(2). [A] right of action shall exist whether or not the policy of insurance sued upon was written or delivered in the State of Louisiana and whether or not such policy contains a provision forbidding such direct action, providing the accident or injury occurred within the State of Louisiana. (Emphasis added).
The plain language of the statute clearly states that as long as either the accident or injury occurred in Louisiana, then the Louisiana Direct Action statute will apply, regardless of where the insurance policy in question was written, delivered, or if the policy by its own terms forbids such an action.
Following his accident the plaintiff returned to New Orleans, his place of residence, and underwent back surgery. Plaintiff's recovery continues in Louisiana; however, given the defendants' alleged failure to pay Maintenance and Cure, his recovery remains hampered by an additional injury: his increased pain and suffering. The record reflects that on April 23, 2003 Magistrate Chasez granted that part of plaintiff's Motion (which the Court notes was unopposed by the defendants) which sought to add a tort claim based on this alleged failure to pay Maintenance and Cure. It is this failure which has allegedly inflicted upon plaintiff additional tortious injury over and above that which resulted from his original complaint.
The Supreme Court has held that a personal injury for failure to pay Maintenance and Cure is available to an injured seaman depending on the facts and consequences of each case. See Cortes v. Baltimore Insular Line, 287 U.S. 367 (1932); Vaughan v. Atkinson, 369 U.S. 527 (1962). Given this, along with the plain language of the Direct Action Statute, this Court finds no error in Magistrate Chasez's Order granting plaintiff's Motion to add Steamship Mutual as an additional defendant for their potential role as the tortfeasor who, by failing to timely pay Maintenance and Cure to plaintiff, allegedly caused his additional (second) injury. The alleged injury in question, the plaintiff's additional pain and suffering, is an injury that occurred solely in Louisiana where plaintiff was recuperating. Thus, the defendants' argument that the alleged injury at issue occurred off the coast of Galveston, Texas "misses the boat." The injury at issue is plaintiff's additional pain and suffering in New Orleans as a result of the defendants' allegedly tortious delay in paying him Maintenance and Cure.
Consequently, this Court finds that defendants' delay in paying Maintenance and Cure, resulted in an additional injury occurring in Louisiana. Therefore, plaintiff has a cognizable tort claim under the Direct Action Statute because plaintiff's medical treatment, including his allegedly delayed recovery and additional pain and suffering occurred solely in Louisiana. As a result, this Court finds that Magistrate Chasez properly granted plaintiff's Motion to add Steamship Mutual as a defendant in this action, and her Order dated May 21, 2003 was not clearly erroneous or contrary to law.
Accordingly,
IT IS ORDERED that defendants' Motion to Review and Reverse Magistrate's Order, Rec. Doc. 77, be DENIED.