M&C and contribution and 1292(a)(3) appeals

It feels a little weird to write a blog post about winning a case, because theoretically the blog is more for miscellanea, and a little bit for important cases. But this one fits the bill.

There’s a 2015 accident where somebody gets hurt, pretty significantly, to her neck. She keeps working though, for nearly another three years, until she gets hurt again in 2018, and this time she gets a lawyer and seeks medical attention. She sued the tortfeasor for the first accident, and the tortfeasor for the second accident, and then pretty quickly settled with the tortfeasor for the first accident.

Her employer is responsible for all her medicals because that’s what cure is. But her employer gets its cure back from the responsible party, to the extent there is one, so the 2018 tortfeasor / Jones Act employer sued the 2015 tortfeasor.

The 2015 tortfeasor said “nahhhh we’re way too remote you don’t get anything” and filed a summary judgment to that effect. The opposition was “look at all this stuff where she says she was hurting the whole time.” Then judge said something different: he said that a second accident terminates a maintenance and cure obligation for a first accident, full stop. Motion granted. Motion for reconsideration denied.

So an appeal followed, and there’s a bit of a wrinkle here, which if you’re into appellate miscellanea (and who isn’t, really) is really interesting:

The plaintiff pled for a jury. You’re not entitled to a jury in purely admiralty cases. In civil cases, there’s no right to immediate appeal of interlocutory orders, but there is one* in admiralty cases. But the claim by OMC against REC is admiralty, right? Right??

Anyway, your scrivener is up there arguing the case when the panel says, in effect, “we dig what you’re saying but don’t have jurisdiction.” So your scrivener goes back to the district court and says “hey judge will you certify this as appealable under 54(b)? And to his credit, he does, so the Court has jurisdiction**.

The Fifth Circuit rules that ordinary rules apply to maintenance and cure, a win is notched, and (seemingly) normal prevails.

*1292(a)(3) provides that there are interlocutory appeals in admiralty matters, but only for those that resolve a claim among / between the parties.

**There’s a side-story here: ordinarily appellate jurisdiction can’t get changed after-the-fact: if you don’t have it when you appeal, you can’t get it. But then the Fifth Circuit decided en banc that the district court can sort of fix these problems because really who wants to get all the way through this when the problem is eminently fixable.