Who Decides Damages in a Seaman's Personal Injury Action

In Clausen v. Icicle Seafoods, Inc., Case No. 85200-6 (Mar. 15, 2012) (en banc), the Washington Supreme Court was asked to decide on an appeal involving a maritime claim for maintenance and cure whether, under federal maritime law, a judge, instead of a jury, awards attorney's fees following the jury award of compensatory and punitive damages in favor of an injured seaman against the employer for willful failure to pay maintenance and cure. Respondent Dana Clausen worked on board Appellant Icicle Seafoods' Bering Star as second engineer when he sustained injuries. Respondent encountered persistent difficulties in getting Icicle and its adjuster Spartan, to meet its obligation to pay him maintenance and cure during his recovery. Icicle paid Respondent $20 per day to cover lodging, utilities, and meals. Respondent resorted to living in a recreational vehicle with a leaking roof and with no heat, air conditioning, running water, or toilet facilities. Additionally, Icicle delayed or refused to pay for treatment that Respondent's doctors recommended. In a report to Icicle, Spartan confirmed that Respondent's injuries were likely career-ending. Icicle filed suit in federal court against Respondent to terminate Respondent's right to maintenance and cure. Respondent filed the present action and Icicle's suit in federal court was dismissed. Respondent sought damages for Icicle's negligence under the Jones Act (46 U.S.C. 30104), unseaworthiness of the Bering Star, and wrongful withholding of maintenance and cure. The jury found Icicle negligent under the Jones Act, and that Icicle was callous or willful and wanton in its failure to pay maintenance and cure. Upon review, the entire Washington Supreme Court concluded that under federal maritime law, the trial court calculates an attorney's fee award related to a maintenance and cure action, and the punitive damages award as determined by the jury here, based on the callous or willful and wanton withholding of maintenance and cure, was proper.

A link to the complete Clausen decision can be found here: => http://law.justia.com/cases/washington/supreme-court/2012/85200-6-0.html

If for some reason, you are unable to utilize the link to this decision, please feel free to contact me at miamipandi@comcast.net or mov@chaloslaw.com and I would be more than happy to send you a copy of the decision.

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