U.S. District Court

ADMIRALTY – Releases

Trainor v. Atlantic Cape Fisheries Inc. et al,

Civ. No. 05-2479; U.S. District Court (DNJ); opinion by Irenas, U.S.D.J.; filed June 28, 2007. DDS No. 54-7-7905 [12 pp.]

Plaintiff commenced this action on May 12, 2005, against defendants Atlantic Cape Fisheries Inc. and Marine Management Inc. (MM). Plaintiff alleges that defendants were negligent under the Jones Act, 46 U.S.C. � 688 et seq. Plaintiff also alleges unseaworthiness of a ship owned and operated by defendants, and asks for maintenance and cure pursuant to general maritime law. Defendants move for summary judgment based on a release executed by plaintiff.

Plaintiff initially injured his back while working on the F/V Master Joel and sought medical treatment. When the doctor informed him that his injury required an MRI of his spine, however, he contacted Daniel Cohen, president and owner of defendant Atlantic Cape. According to plaintiff, Cohen insisted that he seek treatment from Dr. Zerbo, Cohen’s osteopathic doctor. Plaintiff received a check for $1,000 after that meeting and was told that a maintenance check will be provided to him every Friday.

In early July 2004, Sheila Trainor, plaintiff’s wife, contacted attorney David Anderson, and plaintiff retained Anderson’s service in the second week of July. A week after he retained Anderson, Cohen refused to pay maintenance unless plaintiff terminated Anderson. Plaintiff immediately terminated Anderson, and his maintenance checks resumed.

In early September 2004, Dr. Zerbo told plaintiff that his back was recovered. Cohen told him that he could return to his job and receive his former wage, minus maintenance payments, on the condition that he signs a release. Cohen told them that if he signed the release, his re-employment would be guaranteed, and that if plaintiff had further medical problems, the insurance company would pay for the additional medical expenses.

No one at Atlantic Cape explained to plaintiff his rights under the Jones Act or as a commercial fisherman injured on the job. Subsequent to plaintiff’s execution of the release, Cohen refused to allow him to work on any of Atlantic Cape’s vessels. Plaintiff also claims that his back was not completely healed, and that he required additional surgery.

Held: Disputed material facts preclude the court from granting summary judgment in favor of defendants.

First, the court is unable to determine whether plaintiff received adequate medical advice. According to plaintiff, Cohen insisted that he sought treatment from Dr. Zerbo, a doctor with whom defendants have a close relationship. In addition, plaintiff claims that Cohen dissuaded him from seeking a second opinion prior to his spinal surgery. Finally, after Dr. Zerbo discharged plaintiff, informing him that his back had completely recovered, plaintiff experienced more problems that required additional spinal surgery. Drawing all inferences in favor of plaintiff, a reasonable fact finder could believe that plaintiff was coerced into seeking treatment from a biased physician who gave unreliable medical advice. On the other hand, defendants dispute and deny plaintiff’s account of the events. Thus, whether plaintiff received adequate medical advice cannot be resolved by summary judgment.

Second, the court is unable to determine whether plaintiff received adequate legal advice. According to plaintiff, Cohen stopped paying him maintenance after plaintiff retained an attorney. No one at Atlantic Cape explained to him his rights as a commercial fisherman injured on the job, or his rights under the Jones Act. Third, the court cannot determine whether plaintiff executed the release freely, without deception or coercion.

Defendants’ motion for summary judgment is denied.

– By Steven P. Bann

For plaintiff – Stanley L. Bergman (Bergman & Bergman). For defendants – John Francis Gaffney and Peter J. Kurshan (Chase Kurshan Herzfeld & Rubin).