Baldwin Haspel Burke & Mayer LLC

Maritime Update: 9th Circuit Court of Appeals Upholds McCorpen Defense for Maintenance & Cure


In this unpublished decision, the relevant question on appeal in the case of Coastal Villages Pollock v. Ahokaya, 2016 U.S. App. LEXIS 18194 (9th Cir. Oct. 6, 2016) was whether the district court correctly determined, as a matter of law, that the employer satisfied the “materiality prong” of the willful concealment defense. The Ninth Circuit has recognized that, “[w]here a seaman is asked to disclose pertinent information during a pre-hiring medical examination or interview and intentionally conceals or misrepresents material facts, he is not entitled to an award of maintenance and cure.” This was the Ninth Circuit’s determination in its precedent of Burkert v. Weyerhaeuser S.S. Co., [350 F.2d 826, 829 n.4 (9th Cir. 1965)].

In this case, the plaintiff argued the employer must show it, “absolutely would not have hired the seaman if he revealed his prior medical conditions.” Instead, the Court focused on the fact that the employer, Coastal Villages, asked about specific health conditions relevant to the work plaintiff would perform aboard their vessels. This inquiry was on a pre-employment questionnaire it used to make hiring decisions. The employer had a representative testify that the company would have conducted further inquiry and may not have hired plaintiff had he disclosed his pre-existing pulmonary conditions. As a result, the District Court found the company satisfied the “materiality requirement” of the willful concealment defense; this was affirmed by the appellate court.

If you have any questions regarding this matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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