Evich v. Morris (1987)

But see Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987) (holding that humane and liberal character of admiralty law served by permitting non-dependants to recover lost future wages in general maritime survival action).

Evich, 819 F.2d at 258. .

Wash. 1991). 2 Compare Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987), overruling on other grounds acknowledged by Saavedra v. Korean Air Lines Co., 93 F.3d 547 , 553–54 (9th Cir. 1996) and Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1550 (11th Cir. 1987) with McBride v. Estis Well Service, 768 F.3d 382, 384 (5th Cir. 2014) (en banc) and Horsley v. Mobil Oil Corp., 15 F.3d 200, 203 (1st Cir. 1994).

Further, relying on Sutton v. Earles, 26 F.3d 903, 919 (9th Cir.1994) and Evich v. Morris, 819 F.2d 256, 258 (9th Cir.1987), the court held that where no wrongful death beneficiaries exist, the decedent’s estate can receive an award of loss of future earnings through a survival action.

Further, relying on Sutton v. Earles, 26 F.3d 903, 919 (9th Cir.1994) and Evich v. Morris, 819 F.2d 256, 258 (9th Cir.1987), the court held that where no wrongful death beneficiaries exist, the decedent's estate can receive an award of loss of future earnings through a survival action.

RYMER, Circuit Judge, dissenting in part: 51 I dissent from the majority's opinion in Part III only because I feel constrained by our court's prior statement in Evich v. Morris, 819 F.2d 256, 258 (9th Cir.1987), that punitive damages are available for failure to pay maintenance and cure. * Parts I, II, IV, and V of the opinion by Judge Rymer; part III by Judge Farris 1 The presiding judge at trial was the Hon.

RYMER, Circuit Judge, dissenting in part: I dissent from the majority’s opinion in Part III only because I feel constrained by our court’s prior statement in Evich v. Morris, 819 F.2d 256, 258 (9th Cir.1987), that punitive damages are available for failure to pay maintenance and cure.

First, we note that Brennan’s representatives are not precluded from continuing his suit after his death; we recognized a general maritime survival action in Evich v. Connelly, 759 F.2d 1432, 1434 (9th Cir.1985). 22 In a subsequent appeal of that case, Evich v. Morris, 819 F.2d 256, 258 (9th Cir.1987), we also announced the rule for this circuit that, where no wrongful death beneficiaries exist, the decedent’s estate can receive an award for loss of future earnings because i…

We disagree. 63 First, we note that Brennan's representatives are not precluded from continuing his suit after his death; we recognized a general maritime survival action in Evich v. Connelly, 759 F.2d 1432, 1434 (9th Cir.1985). 22 In a subsequent appeal of that case, Evich v. Morris, 819 F.2d 256, 258 (9th Cir.1987), we also announced the rule for this circuit that, where no wrongful death beneficiaries exist, the decedent's estate can receive an award for loss of future ea…

Bouman v. Block, 940 F.2d 1211, 1234 (9th Cir.) cert. denied 112 S.Ct. 640 (1991). 27 Federal maritime law allows punitive damage awards on a "showing of conduct which manifests 'reckless or callous disregard' for the rights of others.... or gross negligence or actual malice or criminal indifference." Churchill v. The F/V FJORD, 892 F.2d 763, 772 (9th Cir.1988); Evich v. Morris, 819 F.2d 256, 258-59 (9th Cir.1987); Proctectus Alpha Navigation Co. v. N. Pac.

Goldstein, Damages in Tort Actions §§ 21.21, 21.22 (1988); see also Evich, 819 F.2d at 258 (“[T]he majority of states do not allow future economic loss to be recovered in survival actions.”).

Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893 (5th Cir.1984) (cited in Evich v. Morris, 819 F.2d 256, 258 (9th Cir., cert. denied, — U.S. —, 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987)).

Evich, 819 F.2d at 258; Merry Shipping, 650 F.2d at 625 .

Evich II, 819 F.2d at 258 (9th Cir.1987).

Glynn, 57 F.3d at 1502-03 (explaining that statements in its earlier case, Evich v. Morris, 819 F.2d 256, 258 (9th Cir.), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987), which indicated that punitive damages would be available under general maritime law for failure to pay maintenance and cure or for unseaworthiness, were pure dictum and thus the issue would be addressed for the first time without being bound by those statements as precedent). .

Davidson involved the application of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 . 848 F.2d at 575 . .But cf. Evich v. Morris, 819 F.2d 256, 257-58 (9th Cir.), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987) (holding that uniformity is as important in maritime survival actions as it is in maritime wrongful death actions). .

Evich v. Morris, 819 F.2d 256, 258-59 (9th Cir.), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987) (“Evich II ”).

The court in Evich v. Morris, 819 F.2d 256, 258 (9th Cir.1987), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987) noted that most states allow recovery in the form of loss of support, when wrongful death beneficiaries exist, rather than recovery for future lost wages.

Evich , at 258.

See Vaughan v. Atkinson, 369 U.S. 527, 540 , 82 S.Ct. 997, 1004 , 8 L.Ed.2d 88 (1962) (Stewart, J., dissenting) (exemplary damages available where shipowner’s 2’efusal to pay maintenance was the result of a wanton and intentional disregard of the legal rights of the seaman); Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1051-52 (1st Cir.1973) (permitting recovery of punitive damages under maintenance and cure claim where defendant’s refusal to pay maintenance was callous, wil…

Evich v. Morris, 819 F.2d 256, 258 (9th Cir.), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987).

Evich v. Morris (Evich II), 819 F.2d 256, 257-58 (9th Cir.1987) (general maritime survival damages are not to be supplemented by state law), after remand from Evich I, 759 F.2d 1432 , 1434 (9th Cir.1985) (survival damages are recoverable under general maritime law), cert. denied, — U.S.-, 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987); see Law v. Sea Drilling Corp., 523 F.2d 793, 795, 798 (5th Cir.1975) (holding that DOH-SA did not preclude an award for survival damages under Moragne…

Even if the state survival statutes are preempted by general maritime law (but not DOHSA), see Evich v. Morris, 819 F.2d 256, 258 (9th Cir.) (state law preempted by general maritime survival actions), cert. denied, — U.S. -, 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987), this would not defeat Plaintiffs’ jury demands.

See McBride, 768 F.3d at 384 . . 498 U.S. 19 , 111 S.Ct. 317 , 112 L.Ed.2d 275 (1990). . 819 F.2d at 258 (citations omitted). .

See Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987) (APunitive damages are available under general maritime law for claims of unseaworthiness.@) (citations omitted); Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1550 (11th Cir. 1987) (APunitive damages 8 At the time Merry Shipping was decided, the Second and Sixth Circuits had held that punitive damages were available in unseaworthiness actions, and no circuit court had ruled otherwise.

See Evich v. Morris, 819 F.2d 256, 257-58 (9th Cir.), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987) (state survival action preempted by conflicting federal maritime survival law); Bergen v. F/V St.

See Evich v. Morris, 819 F.2d 256, 257-58 (9th Cir.), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987) (state survival action preempted by conflicting federal maritime survival law); Bergen v. F/V St.

See Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987) (APunitive damages are available under general maritime law for claims of unseaworthiness.@) (citations omitted); Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1550 (11th Cir. 1987) (APunitive damages should be available in cases where the shipowner willfully violated the duty to maintain a safe and seaworthy ship . . . .@).

See Evich v. Morris, 819 F.2d 256, 258 (9th Cir.1987) (“Punitive damages are available under general maritime law for claims of unseaworthiness.”) (citations omitted); Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1550 (11th Cir.1987) (“Punitive damages should be available in cases where the shipowner willfully violated the duty to maintain a safe and seaworthy ship.... ”).

See Evich v. Morris, 819 F.2d 256, 257-58 (9th Cir.), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987); Nygaard v. Peter Pan Seafoods, 701 F.2d 77 (9th Cir.1983); Nelson v. United States, 639 F.2d 469 (9th Cir.1980).

See generally, Evich v. Morris, 819 F.2d 256, 258 (9th Cir.) ("Evich II ")(pre-death pain and suffering generally recoverable as part of survival action), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987), implied overruling in part recognized by, Davis v. Bender Shipbuilding and Repair Co., Inc., 27 F.3d 426, 430 (9th Cir.1994). 27 Saavedra, recognizing that these damages are not ordinarily available under the Warsaw Convention and DOHSA, attempts to defend…

See generally, Evich v. Morris, 819 F.2d 256, 258 (9th Cir.)(“Evich II ”)(pre-death pain and suffering generally recoverable as part of survival action), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987), implied overruling in part recognized by, Davis v. Bender Shipbuilding and Repair Co., Inc., 27 F.3d 426, 430 (9th Cir.1994).

See Evich v. Morris, 819 F.2d 256, 257-58 (9th Cir.), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987); Nygaard v. Peter Pan Seafoods, 701 F.2d 77 (9th Cir.1983); Nelson v. United States, 639 F.2d 469 (9th Cir.1980).

See, e.g., Evich v. Morris, 819 F.2d 256, 258 (9th Cir.), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987); In re Complaint of Merry Shipping, Inc., 650 F.2d 622 (5th Cir.1981); Favaloro v. S/S Golden Gate, 687 F.Supp. 475, 480 (N.D.Cal.1987).

Compare Anderson v. Whittaker, supra at 770-773 (denying non-dependents’ wrongful death claim) and Truehart, supra at 936-938 (same) with Evich v. Morris, 819 F.2d 256 (9 Cir.), cert. denied, 484 U.S. 914 , 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987) (permitting the recovery of a decedent’s future lost income under a survival action, not a wrongful death claim).

See Evich v. Morris , 819 F.2d 256 , 258 (9th Cir. 1987) ; Azzopardi v. Ocean Drilling & Exploration Co. , 742 F.2d 890 , 893 (5th Cir. 1984) ; In re Complaint of Merry Shipping, Inc. , 650 F.2d 622 , 623-625 (5th Cir. 1981) ; Favaloro v. S/S Golden Gate , 687 F. Supp. 475 , 479-480 (N.D.

See abo Evich v. Morrb, 819 F.2d 256, 257-58 (9th Cir.1987). 4 .

Having denied defendants’ summary judgment motion to dismiss these latter two claims because of genuine factual disputes, see Minute Entry of Sept. 17, 1987, the Court cannot find the judgment value of such claims, if proved, to be below a mere $6500. 1 See Haley v. Pan American World Airways, 746 F.2d 311, 317-18 (5th Cir.1984) (affirming award of $15,000 for pre-death mental anguish of no more than four to six seconds); In re Merry Shipping, Inc., 650 F.2d 622 (5th Cir. Un…

Compare Evich, 819 F.2d at 258 (allowing non-dependent brothers of deceased seaman to recover damages for loss of inheritance) and Snyder v. Whittaker Corp., 839 F.2d 1085, 1093 (5th Cir.1988) (upholding loss-of-inheritance award under DOHSA for decedent’s family at least some of whom were minor children) with Marks v. Pan American World Airways, Inc., 591 F.Supp. 827, 829-33 (E.D.La.1984) (applying Louisiana law, which forbids such awards, and discussing general problems wi…

See, Evich v. Morris, 819 F.2d 256 (9th Cir.), cert. denied, — U.S. -, 108 S.Ct. 261 , 98 L.Ed.2d 218 (1987) (survivors’ claims).