Robert dePerrodil v. Bozovic Marine, Incorporated
842 F.3d 352
| 5th Cir. | 2016Background
- Plaintiff Robert dePerrodil, a 70-year-old oilfield consultant, was injured when he fell in the wheelhouse of the M/V THUNDERSTAR while the vessel, operated by Bozovic Marine, traversed rough seas returning to port.
- DePerrodil worked for Petroleum Engineers, Inc. (PEI); PEI carried LHWCA workers’ compensation insurance, and the insurer paid $57,385.50 of billed medical charges totaling $186,080.30 (the remainder was written off).
- The district court found Bozovic Marine negligent for vessel operation and assigned liability 90% to Bozovic Marine and 10% to dePerrodil, awarding damages including the full billed medical amount and future lost wages based on a 75-year work-life expectancy.
- On appeal the Fifth Circuit reviewed: (1) whether the captain breached a duty in how he operated the vessel in rough seas; (2) the apportionment of fault; (3) application of the collateral-source rule to LHWCA-paid but written-off medical charges; and (4) the use of an above-average work-life expectancy for future wages.
- The Fifth Circuit affirmed liability and the 90/10 apportionment, reversed the award of medical expenses as billed (holding recovery limited to amounts actually paid by the LHWCA insurer), and affirmed the use of age 75 for lost-wage calculations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability for negligent vessel operation | Captain operated imprudently (failed to decelerate over an 8–10 ft wave), causing fall | Risk was open and obvious; dePerrodil knew conditions and was experienced | Held: captain breached duty by cresting at full throttle; liability to Bozovic Marine affirmed |
| Apportionment (comparative negligence) | DePerrodil argued 10% fault allocation was appropriate (he did not contest it) | Bozovic argued at least equal fault | Held: 90% to Bozovic, 10% to dePerrodil not clearly erroneous given captain’s control and record evidence |
| Collateral-source rule — recover billed vs paid LHWCA medical expenses | DePerrodil: collateral-source rule allows recovery of full billed amounts | Bozovic: should be limited to amounts actually owed/paid; written-off charges not recoverable | Held: collateral-source applies only to amounts actually paid by LHWCA insurer; award of billed amount vacated and limited to $57,385.50 paid |
| Future lost wages work-life expectancy | DePerrodil: expert and corroboration justify above-average retirement at 75 | Bozovic: must use BLS average (72) absent stronger evidence | Held: using age 75 was supported by vocational expert and corroborating evidence; not clearly erroneous |
Key Cases Cited
- Exec. Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (establishing maritime jurisdiction principles)
- Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (passenger duty of care in maritime context)
- Davis v. Odeco, Inc., 18 F.3d 1237 (Fifth Circuit exposition of collateral-source rule)
- Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (Fifth Circuit on recovery of written-down maritime medical charges)
- Johnson v. Cenac Towing, Inc., 544 F.3d 296 (application of collateral-source analysis when tortfeasor contributes to benefit)
- Phillips v. Western Co., 953 F.2d 923 (factors for assessing whether employer-provided benefits are bargained-for fringe or prophylactic insurance)