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Recent Personal Injury and Car Accident News and Cases related to Hawaii
In January of 2009 HEMIC, a Hawaii insurer, was punished for deliberately failing to promptly pay the claim of an 80-year-old woman who had to rely on handouts from neighbors to survive after the company failed to honor her claim. A Kauai judge, Randal Valenciano, ordered HEMIC to pay $325,000, including an extra $250,000 in punitive damages, for not timely paying the workers' compensation claim of the Venezualan woman arising out of the death of her daughter - upon whom she was dependent for support. "They tried to lay low and hope the claim would go away" according to one of the attorneys involved in the case - a common insurance company tactic. Ordonez v. Hawaii Employers' Mutual Insurance Co., Circuit Court of the Fifth Circuit, Kauai, Hawaii, Civil No. 5CC06-1-000138 (court minute order filed 1/16/2009).
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JONES ACT- TABLE OF CONTENTS
The Jones Act
VII. PRACTICE AND PROCEDURE -> H. Discovery
602. Generally
In action by foreign seaman under 46 USCS Appx § 688 for personal injuries, wages, maintenance and repatriation, request of defendant foreign shipowner that jurisdiction be declined subjectes defendant, defendant's agents and those to whom it entrusted allegedly foreign vessel to obligation of furnishing on request all pertinent information for decision on motion to decline jurisdiction, where seaman claimed vessel was actually operated, owned and controlled by American interests. Lekkas v Liberian M/V Caledonia (1971, CA4 Va) 443 F2d 10.
603. Interrogatories
District Court's dismissal of action brought by Honduran seaman under 46 USCS Appx § 688 for lack of jurisdiction was improper where court relied exclusively upon defendant's affidavits and where defendant's answers to interrogatories directed at requisite jurisdictional factors were outstanding and overdue. Blanco v Carigulf Lines (1980, CA5 Ala) 632 F2d 656.
Defendant in action under 46 USCS Appx § 688 was entitled to more definite interrogatories which questioned types of signals used between pilot house and engineroom; response that signals were "usual" is insufficiently specific and inadequate. Carstens v Great Lakes Towing Co. (1945, DC Ohio) 71 F Supp 394.
Objection of libellant under 46 USCS Appx § 688 to interrogatories concerning his criminal record, which were served on him by respondent, owner of vessel, was sustained, there being no relevancy between subject matter of these interrogatories and probable issues in case. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.
Plaintiff is entitled to answers to interrogatory requesting name, capacity, and address of each officer and crew member who served aboard defendants' vessel for voyage during which plaintiff sustained his alleged injuries. Vermilyea v Chesapeake & O. R. Co. (1951, DC Mich) 11 FRD 255.
Interrogatories are to be treated as part of pleadings, but may not be considered as evidence in admiralty or civil cases unless presented as such. Muse v Freeman (1961, ED Va) 197 F Supp 67, 5 FR Serv 2d 1042.
604. Depositions
In motion by seaman for examination before trial of officer of defendant and for production of various documents, statements by fellow employees made after accident in regard to accident are not "material to any matter involved in the action." Kenealy v Texas Co. (1939, DC NY) 29 F Supp 502, 1940 AMC 296.
In action under 46 USCS Appx § 688 to recover for damages, plaintiff was ordered to submit to examination in state of injury, which was also where oral examination was to occur, rather than his home state which was several hundred miles away. Warren v Weber & Heidenthaler, Inc. (1955, DC Mass) 134 F Supp 524.
Plaintiff suing under 46 USCS Appx § 688 cannot be required to pay expenses of defendant's attorney in going to Louisiana to be present at the taking of depositions, as 28 USCS § 1916 prohibits requiring seamen to prepay fees, and question of whether plaintiff is seaman is one issue for trial. Walsh v Marine Navigation Co. (1963, SD NY) 34 FRD 25, 8 FR Serv 2d 30b.41, Case 1, 1964 AMC 560.
605. Inspection of vessel
Court may order discovery and inspection of vessel on which injury occurred but allowance of such motion must be hedged by such conditions and limitations as will prevent any detention of defendant's vessel and consequent damage to defendant. Gimenes v New York & P. R. S.S. Co. (1929, DC NY) 37 F2d 168.
Plaintiff is permitted to board defendant's vessel to make discovery and inspection, with right to take photographs and make measurements. Vermilyea v Chesapeake & O. R. Co. (1951, DC Mich) 11 FRD 255.
606. Documents and records
In action under 46 USCS Appx § 688, determinative pretrial inquiry where plaintiff seeks to require production of hull insurance policy and report pertaining to payment received thereunder, was not whether possibility of trial prejudice from requiring production of document exists, but whether production will aid in discovery of truth by revealing admissible evidence and where record reveals no other more likely and authoritative source of information, denial of such discovery will constitute abuse of discretion of trial court. Roth v Bird (1956, CA5 Fla) 239 F2d 257.
Voluntary, routine pre-accident safety reviews are not protected by privilege of self-critical analysis and must be made available for discovery. Dowling v American Hawaii Cruises, Inc. (1992, CA9 Hawaii) 971 F2d 423, 92 CDOS 6772, 92 Daily Journal DAR 10817.
In action brought under 46 USCS Appx § 688 to recover damages for injuries, defendant may obtain production of records that would indicate whether or not benefits had been paid to plaintiff in amounts and duration thereof. Vazquez v A. H. Bull S.S. Co. (1950, DC NY) 91 F Supp 518.
Plaintiff was permitted to view secret surveillance films made by defendant of plaintiff and his injury, after plaintiff had deposed as to his injuries and disabilities. Snead v American Export-Isbrandtsen Lines, Inc. (1973, ED Pa) 59 FRD 148, 17 FR Serv 2d 13.
Discovery of minutes of monthly safety committee consisting of representatives of defendant vessel on which plaintiff was injured, used to identify potential safety problems aboard ship, would have chilling effect on critical self-analysis conducted by committee, and will be denied where committee has already provided relevant excerpts from minutes. Dowling v American Hawaii Cruises, Inc. (1990, DC Hawaii) 133 FRD 150, 1991 AMC 51, motion den (DC Hawaii) 1991 AMC 58.
607. --Plaintiff's discovery of own statements
Plaintiff is not entitled to reports and statements made by him to officers or crew of vessel. Corbett v Columbia Transp. Co. (1946, DC NY) 5 FRD 217.
Libelant's motion for libelee's production of copy of libelant's signed statement will not be granted in absence of showing of good cause. Prelli v Shepard S.S. Co. (1947, DC NY) 75 F Supp 220.
608. --Log entries and medical reports
Plaintiff has right to inspect and make copies of entries in log book, rather than rely on representations made by defendant as to what log book does or does not contain; order that defendant furnish plaintiff with any reports made in regular course of business with reference to plaintiff's injuries means information furnished by officers of vessel to owners in form of report. Murphy v New York & P. R. S.S. Co. (1939, DC NY) 27 F Supp 878.
In action under 46 USCS Appx § 688 to recover for injuries sustained on vessel, plaintiff is unquestionably entitled to log records of any relevant issue; plaintiff was also entitled to statements of defendant's employees making reports relevant to accident and submitted in usual course of business following accident; plaintiff was not entitled to reports and statements made by plaintiff to officers or crew of vessel. Corbett v Columbia Transp. Co. (1946, DC NY) 5 FRD 217.
Medical logs and other books papers and records pertaining to diagnosis care and medical treatment of deceased seaman during voyage, and production of rough deck log of vessel covering voyage, is within items which plaintiff should have for trial. Mulligan v Eastern S.S. Lines, Inc. (1946, DC NY) 6 FRD 601.
In action under 46 USCS Appx § 688, plaintiff is entitled to production for inspection, copying or photographing, of reports, logs, books, records, and papers pertaining to treatment of injuries of plaintiff. Vermilyea v Chesapeake & O. R. Co. (1951, DC Mich) 11 FRD 255.
609. Disclosing names of witnesses
Defendant's witnesses were not permitted to testify when defendant, although knowing at time of filing pretrial statement that certain evidence might be needed for defense or impeachment matters, did not disclose names of witnesses or inform court of possibility of impeachment evidence until time of trial. Ralph v Harry Zubik Co. (1963, WD Pa) 214 F Supp 145, 7 FR Serv 2d 307, affd (CA3 Pa) 319 F2d 531, cert den 375 US 931, 11 L Ed 2d 263, 84 S Ct 332.
JONES ACT- TABLE OF CONTENTS
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1999-2005 by William H. Lawson.
