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Maritime Update: Fifth Circuit Makes a Change in the Collateral Source Rule for Maritime Torts


This ground breaking decision of DePerrodil v. Bozovic Marine, Inc. by the Fifth Circuit Court of Appeals on November 17 addressed the collateral source rule with respect to the recovery of medical expenses and what is commonly known as the “medical write-off”. The question posed here was whether the plaintiff-claimant could recover the full amount actually billed by the medical provider or only the net amount paid by the insurer? The appeals court found he could recover only the amount paid.

Robert dePerrodil, plaintiff, was injured while aboard the M/V THUNDERSTAR, a 65-foot crewboat owned and operated by Bozovic Marine, Inc. The plaintiff had more than four decades of oilfield experience and worked at the time of his injuries for Petroleum Engineers, Inc. (PEI). His employer had chartered the vessel from Bozovic Marine, which was operated by Captain Bozovic. The vessel was to take dePerrodil from Venice, Louisiana, to his work site on an offshore platform. While en route to the offshore location, they became aware that dePerrodil would not be able to board the platform because the liftboat and its crane were not present at the platform. On the return voyage to port, the vessel encountered rough seas. During this return trip, Captain Bozovic steered the vessel over an eight-to-ten-foot wave at full throttle, but did not decelerate upon reaching the crest. The vessel fell into the wave’s trough and caused dePerrodil, who was standing in the wheelhouse, to fall to the floor which injured his back.

The primary issue in this appeal was whether the collateral-source rule would allow a plaintiff to recover the unpaid, written-off portion of his billed medical expenses. In this case, the “paid portion” of the billed expenses was made by dePerrodil’s employer, PEI, through its workers’ compensation insurance under the Longshore and Harbor Workers’ Compensation Act (LHWCA). This amount paid was significantly less than the amount billed by the medical provider. This is often referred to as the “medical write-off”.

The Fifth Circuit noted that there was no prior direct legal authority regarding how to treat the written-off portion of the LHWCA medical expenses in the maritime-tort context. Looking to persuasive authority from other analogous state and maritime case law, the Fifth Circuit concluded that the LHWCA medical payments were only collateral to a third party tortfeasor to the extent paid. They ruled dePerrodil could only recover for the medical expenses that had been paid, not billed. The Court concluded that the District Court erred in awarding the full amount billed and remanded the decision to comply with its ruling.

The full decision can be found at: http://www.ca5.uscourts.gov/opinions/pub/16/16-30009-CV0.pdf.

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


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