Fill and Sign the Plaintiffs Answering Brief in Opposition to Certain Form

6.2 Jones Act - Unseaworthiness Maintenance And Cure The Plaintiff's [third] claim is that, as a seaman, the Plaintiff is entitled to recover what the law calls "maintenance and cure." This claim is completely separate from both the Jones Act and the unseaworthiness claims of the Plaintiff, and must be decided entirely apart from your determination of those claims. [The only common element of the three claims is the "seaman" status of the Plaintiff, and the test for seaman status is the same for all claims. Therefore, if the Plaintiff has proven employment as a "seaman" on the date of the accident for the purposes of the other claims, then you must find that the Plaintiff is a seaman for the purposes of "maintenance and cure." On the other hand, if you find that Plaintiff was not a seaman with regard to the other claims, then you may not find that the Plaintiff was a seaman entitled to "maintenance and cure."] "Maintenance and cure" is the policy of providing to a seaman who is disabled by injury or illness while in the service of the ship medical care and treatment, and the means of maintaining one's self, during the period of convalescence. A seaman is entitled to maintenance and cure even if the seaman is unable to establish that an injury was a result of any negligence on the part of the employer or an unseaworthy condition existing aboard the vessel. Generally speaking, in order to recover maintenance and cure, the Plaintiff need only show that an injury or illness occurred while the Plaintiff was in the service of the vessel on which the Plaintiff was employed as a seaman and that the injury or illness occurred without willful misbehavior by the Plaintiff. The injury or illness need not be work-related so long as it occurs while in the service of the ship. Neither maintenance nor cure may be reduced because of any negligence on the part of the seaman; and assumption of the risk is no defense to a claim for maintenance and cure. "Maintenance" is defined as the cost of food and lodging, and transportation to and from a medical facility. However, a seaman is not entitled to maintenance for any period of time while admitted as an inpatient in any hospital because the cure provided by the employer through hospitalization includes the food and lodging of the seaman, and, therefore, the maintenance obligation of the employer is also discharged. The "cure" to which a seaman may be entitled includes the cost of medical attention, including the services of physicians and nurses as well as the cost of hospitalization, medicines and medical apparatus. However, the employer does not have a duty to provide cure payments for any period of time during which a seaman is hospitalized in a United States Marine Hospital, or in any other hospital at the employer's expense. With regard to the period of time covered by the claim, a seaman is entitled to receive maintenance and cure from the date of departure from the vessel until the seaman reaches the point of "maximum possible cure" under the circumstances, that is, the point at which no further improvement in the seaman's medical condition is to be reasonably expected. The obligation usually ends when qualified medical opinion is to the effect that maximum possible cure has been effected. The owner is not an insurer that a cure will be effected. The date when a seaman resumes employment is one factor you may consider in deciding when the period, if any, during which a seaman may be entitled to maintenance and cure, ends. In a case in which the evidence warrants a finding that the seaman was forced by economic necessity to return to work prior to reaching maximum possible cure, that fact may be taken into account in determining the date on which maintenance and cure should terminate. It is important to note here that if you find that the Plaintiff is entitled to an award of damages under either the Jones Act or the unseaworthiness claims, and if you include either loss of wages or medical expenses in the damage award, then maintenance and cure cannot be awarded for the same period of time. In other words, there can be no double recovery for the Plaintiff. However, the Plaintiff may recover for any "willful or arbitrary" failure on the part of the employer to have paid maintenance and cure when it was due. When the Defendant willfully and arbitrarily fails to pay maintenance or provide cure to a seaman up to the time that the seaman receives maximum cure, and such failure results in an aggravation of the seaman's injury, then the seaman may recover damages for prolongation or aggravation of the seaman's injury, pain and suffering, additional medical expenses incurred as a result of the failure to pay, and a reasonable attorney’s fee and costs. Therefore, in order to award additional damages to the Plaintiff for a willful failure of the ship owner to provide maintenance and cure, you must find:First: That the Plaintiff was entitled to maintenance and cure; Second: that it was not provided;Third: That the Defendant willfully and arbitrarily failed to provide cure up to the time that the seaman reached maximum cure; andFourth: That such failure resulted in injury to the Plaintiff. An employer has a duty to investigate a seaman’s claim in good faith and with reasonable diligence. But, an employer is not obligated to pay maintenance and cure to a seaman just because the seaman claims an injury, and the employer has a right to contest the claim in good faith. Thus, an employer acts "willfully and arbitrarily" only when the employer acts without reason, or with callous disregard for the claim of the seaman. You may award damages for any failure of the employer to pay maintenance and cure to the Plaintiff only if, on the basis of all the facts and opportunities known to and available to the Defendant during the time in question, the refusal to pay maintenance and cure was arbitrary and capricious, or in callous disregard of the Plaintiff's claim. [Finally, it is important to remember that the Plaintiff cannot recover attorney fees for the prosecution of either the Jones Act or the unseaworthiness claims, but only for the prosecution of the maintenance and cure claim, if warranted.] 6.2 Jones Act - Unseaworthiness Maintenance And Cure SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence?1. That the Plaintiff was a “seaman” at the time of his [illness] [injury]?Answer Yes or No2. That the Defendant willfully and arbitrarily failed to provide maintenance and cure up to the time that the Plaintiff reached maximum cure:Answer Yes or No3. That the Plaintiff should be awarded the following damages: [Enumerate the recoverable elements of damages] $SO SAY WE ALL.ForepersonDATED: