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TURNER v. AMERICAN DREDGING CO.

February 26, 1976

GEORGE R. TURNER
v.
AMERICAN DREDGING COMPANY



The opinion of the court was delivered by: HUYETT

 HUYETT, District Judge

 Claiming relief under both the Jones Act, 46 U.S.C. ┬ž 688 (1970), and under general maritime law, plaintiff George Turner has brought this action for injuries allegedly suffered when he fell down an engineering room ladder aboard the Tug Dover sometime during the Fall of 1969. *fn1" Since plaintiff did not file his complaint until May 3, 1974, defendant now contends that plaintiff's Jones Act claim is barred by the three-year statute of limitations applicable here *fn2" and his claims of unseaworthiness and for wages and maintenance and cure by the doctrine of laches. Plaintiff, in turn, maintains that defendant's conduct in securing a 1971 release from plaintiff equitably estops defendant from invoking the statute of limitations and that defendant has not demonstrated the prejudice necessary to establish a defense of laches. Because the relevant case law in this circuit holds that the issues raised by claims of equitable estoppel and laches are both for the court and not the jury, *fn3" we held a non-jury trial on July 15, 1975, pursuant to Fed.R.Civ. P. 42(b), limited to these issues. *fn4"

 Plaintiff's evidence at trial consisted of the testimony of plaintiff George Turner, Richard Schiller, a claims representative for Hartford Insurance Co., defendant's insurance carrier, and three exhibits comprised primarily of materials from defendant's investigative file on this case. According to plaintiff's testimony, the following events transpired in the summer of 1971, the force of which, plaintiff urges, must lead us to find that his delay in bringing suit was excusable and that defendant is estopped from raising the statute of limitations as a defense. In August 1971 Richard Schiller, with whom plaintiff had had several prior contacts, *fn5" informed plaintiff that unless he fully settled his claims against defendant by October 1971, he would lose all claims for medical expenses and for maintenance and cure. *fn6" Mr. Schiller offered the sum of $30,000 in settlement but told plaintiff in the presence of plaintiff's wife that Hartford would continue, in addition to the payment of $30,000, to pay plaintiff's medical expenses and that the settlement figure covered only back wages. Plaintiff can't recall whether or not Mr. Schiller ever explained the rights of seamen to him, but he does remember that Mr. Schiller never showed him any medical reports or talked to him about the extent of his back injury. Mr. Schiller did tell him, however, that he would be able to go back to work. On August 10, 1971, Mr. Schiller and another man, who plaintiff believed to be a notary, visited plaintiff at Hillside House, a convalescent home, and plaintiff signed a release form. Mr. Schiller never advised plaintiff to get an attorney.

 In further support of his contention that his general admiralty claims are not barred by laches, plaintiff offered in evidence a packet of materials which document the extent to which defendant had collected investigative information to aid in the trial of this action. The packet contains, among other documents, witness statements, investigative reports, and medical reports. Moreover, on cross-examination, Laverne Shiffer, Hartford's regional claims supervisor in charge of plaintiff's case, testified that all witnesses were still available, that the Tug Dover was surveyed as late as 1975, that most relevant medical reports were already in defendant's hands, and that medical reports on a newly-discovered prior back injury were probably available as well. Finally, in answer to the question from plaintiff's counsel, "From an investigative point of view how was Hartford prejudiced by this late filing?", Mr. Shiffer replied, "From an investigative standpoint? Probably not at all." N.T. 60

 Defendant's direct evidence at trial included the testimony of Laverne Shiffer and two exhibits. We note, however, that certain testimony of Richard Schiller both on direct and on cross-examination supported defendant's contentions. Mr. Shiffer testified generally about his evaluation of plaintiff's claim prior to the 1971 settlement; he specifically testified that in evaluating the claim he considered "the traditional ingredients to a Jones Act, maritime unworthiness cause of action." N.T. 50. Not surprisingly, Richard Schiller's testimony on his dealings with plaintiff during the summer of 1971 differed markedly from plaintiff's testimony. According to Mr. Schiller the following occurred. During the summer of 1971 plaintiff and he negotiated the settlement of all of plaintiff's claims against defendant. Plaintiff instigated the negotiation when he told Mr. Schiller that he wanted to invest in some land. Although Mr. Schiller's memory is hazy on this point, he thinks plaintiff suggested the $30,000 figure. In any case he received authority to offer plaintiff the $30,000 but only if that figure included $12,000 already paid for medical bills and maintenance and cure. When Mr. Schiller outlined the offer to him, plaintiff rejected it insisting that he wanted $30,000 exclusive of amounts allotted to prior claims. Eventually, Mr. Schiller was given authority to meet plaintiff's demands and arrangements were made for Mr. Schiller and his attorney, Roger Sanders, to meet with plaintiff at Hillside House on August 10, 1971, to sign the settlement papers. Prior to the meeting Mr. Schiller told plaintiff he was going to bring an attorney with him. Mr. Schiller agrees with plaintiff that he never advised plaintiff to get his own attorney and that he neither discussed plaintiff's prognosis with him the day of settlement nor did he at any time provide plaintiff with medical reports. Mr. Schiller did not, however, tell plaintiff that he would be "all right medically." Nor did he tell plaintiff that he had to settle at a specific time because his benefits would otherwise run out. Last, he never told plaintiff anything but that in exchange for a total sum of $42,000, he was fully releasing all claims against defendant.

 Defendant's two exhibits, admitted into evidence, consisted of a letter, dated August 10, 1971, from attorney Sanders to Hartford, recounting his version of the settlement meeting at Hillside House, and a written statement by plaintiff, dated May 13, 1971, and given to Richard Schiller. The letter from attorney Sanders states that he attended the meeting at Hillside House on August 10th along with a notary public whom he brought from his office *fn7" and that he found plaintiff alert and fully cognizant of the circumstances of the meeting. The letter further relates that:

 
Mr. Turner read the "Rights of Seamen" form and then I reviewed each of the three sections with him, briefly. He then explained to me his understanding of the three sections of the form and it was clear in my mind that he fully understood the form . . .
 
Having read the "Rights of Seamen" form and indicating that he understood the form, Turner printed in his name and address, in his own hand, and then added his signature to the form. The signature was notarized.
 
Turner then reviewed the release and made it plain that he fully understood that it was a complete release for all his claims. He inserted, in his writing, his name and age near the top of the release form, the word "release" near the middle of the release form, the answers to the five questions near the bottom of the release form, and added his signature in the space provided near the bottom of the form. The balance of the entries on the face of the release are in my hand writing and were inserted on the release prior to Turner's signature on the release. On the reverse side of the release are the signatures of three witnesses (me, Mr. Schiller and the Notary Public) and Turner's signature was then notarized.
 
Mr. Schiller's records indicated that past payments (including a bill from Dr. LeRoy in the amount of $865 that was to be paid today) amounted to $11,464.95. The additional payment being made today was $30,000 and the release recites the gross consideration of $41,464.95. In addition, Mr. Schiller and Mr. Turner had an understanding that Mr. Schiller would also pay a $31 bill for medication and the bill at Hillside House through today.

 Plaintiff's May 13th statement is offered primarily for plaintiff's statement that:

 
I was operated on again by Dr. Gopez. He said the nerves were irritated by old scar tissue and thought the nerve was permanently damaged. Gopez says there is nothing more surgically he can do.

 Defendant's Ex. #2 at 3. Related to this statement is another statement made by plaintiff during the following ...


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