REVISED October 24, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30113

LEROY JOHNSON

Plaintiff - Appellee

v.

CENAC TOWING INC.

Defendant - Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:06-CV-914

Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.

EDITH H. JONES, Chief Judge:

Leroy Johnson (“Johnson”) sustained injuries while working as a seaman

for Cenac Towing, Inc. (“Cenac”). He sued Cenac in federal court for negligence

under the Jones Act, unseaworthiness, and maintenance and cure benefits.

Following a bench trial, the district court denied maintenance and cure because

Johnson willfully concealed his preexisting physical problems from Cenac, but

the court awarded him damages under the Jones Act. Cenac appeals. We must

vacate and remand for further consideration of Johnson’s possible contributory

negligence, but otherwise affirm the court’s rulings.

United States Court of Appeals

Fifth Circuit

F I L E D

September 24, 2008

Charles R. Fulbruge III

Clerk
No. 07-30113

2

BACKGROUND

Johnson worked as a tankerman for Cenac from May 2003 to May 2004

and from May 2005 to December 2005. Before each period of employment with

Cenac, he filled out an employment application and underwent a preemployment physical examination. On both his 2003 and 2005 applications, he

indicated that he had never suffered any on-the-job injuries and that he did not

have any physical conditions which might interfere with or hinder his job

performance. For Cenac’s pre-employment physicals, Johnson completed

medical history questionnaires in which he indicated that he had never hurt his

back and never received disability compensation. He did acknowledge that he

had undergone surgery, but only for a shoulder injury in 1987.

Johnson’s answers on his applications and questionnaires were not

truthful. Before he applied to work for Cenac, he had been twice injured while

working for other offshore companies. In 1994, Johnson injured his neck and

back in an on-the-job accident, which left him disabled for at least ten months.

He underwent neck surgery almost a year later as a result of the accident. In

2001, Johnson injured his back again in an on-the-job accident and was disabled

for aboutthirteen months. He received steroid injections to treat his back injury

and experienced other ongoing urological problems as a result of the accident.

After each accident, Johnson obtained compensation benefits, sued his employer,

and collected damages. He intentionally concealed all of these prior accidents,

injuries, and claims from Cenac during the hiring process. The doctor who

administered Johnson’s two physical examinations on behalf of Cenac stated

that had he known of Johnson’s prior work-related accidents he would not have

approved him for employment because of the “possibility of further endangering
No. 07-30113

1

It is unclear whether Blue Cross paid these expenses because Johnson falsely told his

health care providers that his injuries were non-work-related or whether Blue Cross

erroneously assumed that its policy covered Johnson’s injuries. The district court made no

factual findings on this issue. On appeal, Cenac argues that Johnson lied to his health care

providers, but it provides no citations to the record to support this claim. Our independent

review of the record indicates that Cenac offered no evidence indicating that Johnson lied to

his health care providers about the nature of his injuries. He may have done so, but we cannot

assume that he lied simply because Blue Cross paid his medical bills for work-related injuries.

3

himself in any kind of way . . . in this case his neck and his back and to try to

protect others around him.”

On December 14, 2005, Johnson injured his back again while working as

a tankerman aboard a Cenac vessel that was towing barges near Mobile,

Alabama. Johnson and coworker Louis Celestine were carrying a 175-pound

cross-over hose aboard one ofthe barges when Celestine tripped and dropped his

part of the load. Suddenly bearing a heavier weight, Johnson exclaimed that

he had hurt his back. He immediately reported the accident and his injury to

the crew.

For several months, Johnson was treated for low back pain and urological

problems. The district court found that these injuries resulted from an

aggravation of Johnson’s pre-existing back condition stemming from his 2001

accident. Johnson incurred $38,095.80 in medical expenses. Some of the

expenses inexplicably were paid by the Blue Cross Blue Shield group health

insurance plan that Cenac offers to cover only employees’ non-work-related

injuries.1 Cenac pays one hundred percent of its employees’ insurance premiums

for the plan.

Johnson filed suit against Cenac for negligence under the Jones Act,

46 U.S.C. § 30104, unseaworthiness under general maritime law, and

maintenance and cure. Cenac countered that Johnson was not entitled to
No. 07-30113

4

recover either damages or maintenance and cure because he willfully concealed

his prior injuries during Cenac’s hiring process. At a minimum, it asserted, any

damages awarded to Johnson should be reduced because the concealment

rendered him contributorily negligent. Cenac also argued that if Johnson were

awarded damages for past medical expenses, the company should receive a setoff for the health insurance payments made by the Blue Cross plan, which it

established and fully funded.

After a two day bench trial, the district court denied maintenance and

cure; awarded judgment as a matter of law for Cenac on unseaworthiness; found

Cenac entirely at fault for Johnson’s injuries; awarded Johnson $130,226 in

Jones Act damages, including all past medical expenses; and ruled that

payments made by Blue Cross were a collateral source not subject to set-off

against Johnson’s award. On appeal, Cenac argues that the district court erred

in (1) holding that Johnson’s intentional concealment of material medical facts

did not bar his Jones Act negligence claim; (2) finding that Johnson was not

contributorily negligent for concealing his prior injuries; and (3) denying its

requestto deduct health insurance payments Johnson received from his damage

award for past medical expenses.

DISCUSSION

A. McCorpen Defense and the Jones Act

Generally, an employer “must pay maintenance and cure to any seaman

who becomes ill or suffers an injury while in the service of the vessel, regardless

of whether either party was negligent.” Bertram v. Freeport McMoran, Inc.,

35 F.3d 1008, 1012 (5th Cir. 1994) (internal quotation marks omitted). An

employer, however, is allowed to rely on certain legal defenses to deny a claim

for maintenance and cure. Brown v. Parker Drilling Offshore Corp., 410 F.3d
No. 07-30113

2 The Jones Act, 46 U.S.C. § 30104, makes the provisions of the Federal Employers’

Liability Act (“FELA”), such as 45 U.S.C. § 51, applicable to seamen. Gautreaux, 107 F.3d at

335. Jones Act cases, therefore, follow cases under FELA. Brown, 410 F.3d at 178.

5

166, 171 (5th Cir. 2005) (citing McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547

(5th Cir. 1968)). Among these, the McCorpen defense applies when an injured

seaman has “willfully concealed from his employer a preexisting medical

condition.” Id. To establish a McCorpen defense, an employer must show that

the seaman intentionally misrepresented or concealed medical facts; the nondisclosed facts were material to the employer’s decision to hire the seaman; and

a connection exists between the withheld information and the injury complained

of in the lawsuit. Id.

In this case, the district court found that all three elements of the

McCorpen defense were satisfied and accordingly denied recovery for

maintenance and cure. Cenac argued that its McCorpen defense should also bar

Johnson’s claim under the Jones Act, which holds an employer liable to a seamen

for injuries “resulting in whole or in part from the negligence” of the employer

or its employees or agents. 45 U.S.C. § 51; Gautreaux v. Scurlock Marine, Inc.,

107 F.3d 331, 335 (5th Cir. 1997) (en banc).2 But the district court disagreed,

stating that“the existence of the McCorpen defense does not automatically taint

a Jones Act claim.”

Cenac continues to urge that the McCorpen defense should extend to “any

damages sought by a seaman for only the aggravation of his prior and

intentionally concealed medical condition.” This legal argument, which we

review de novo on appeal, is foreclosed by precedent. The Supreme Court’s

decision in Still v. Norfolk & Western Railway Co., 368 U.S. 35, 82 S. Ct. 148
No. 07-30113

3 See also Jauch v. Nautical Service, Inc., 470 F.3d 207, 213-14 (5th Cir. 2006); Brown,

410 F.3d at 178; Compton v. Luckenbach Overseas Corp., 425 F.2d 1130, 1133 (2d Cir. 1970).

4

In Sorrell, Justice Souter, joined by Justices Scalia and Alito, argues in a concurring

opinion that the standard of causation in FELA cases, and thus Jones Act cases, is not more

“relaxed”than in tortlitigation generally. Sorrell, 127 S. Ct. at 809-12 (Souter, J., concurring).

6

(1961), makes clear that a “seaman . . . is not barred from suit under the Jones

Act because he conceals a material fact in applying for employment.” Gypsum

Carrier, Inc. v. Handelsman, 307 F.2d 525, 530 (9th Cir. 1962); Still, 368 U.S. at

35, 82 S. Ct. at 149 (holding that a railroad cannot“escape”liability under FELA

“by proving that an [injured] employee . . . has obtained his job by making false

representations upon which the railroad rightfully relied in hiring him”).3 The

district court correctly concluded that McCorpen does not bar a Jones Act claim.

B. Contributory Negligence and the Jones Act

Although the McCorpen rule is not applicable to a Jones Act negligence

claim, contributory negligence is an affirmative defense that diminishes recovery

in proportion to the seaman’s fault. 45 U.S.C. § 53; see Norfolk Southern Ry. Co.

v. Sorrell, 549 U.S. 158, 127 S. Ct. 799, 802 (2007). To establish that a seaman

is contributorily negligent, an employer must prove negligence and causation.

See Sorrell, 127 S. Ct. at 807; see also Gautreaux, 107 F.3d at 338.

A seaman is negligent if he fails to act with ordinary prudence under the

circumstances. See Gautreaux, 107 F.3d at 339. “The circumstances of a

seaman’s employment include not only his reliance on his employer to provide

a safe work environment but also his own experience, training, or education.

The reasonable person standard, therefore, [in] a Jones Act negligence action

becomes one of the reasonable seaman in like circumstances.” Id. (emphasis in

original). The standard of causation in Jones Act cases is not demanding.4 See,
No. 07-30113

He contends that this “relaxed” causation standard stems from a misunderstanding of Rogers

v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 448 (1957). Id. at 809. To correct

that misunderstanding, Justice Souter provides a detailed analysis of Rogers and related cases

showing that it was not intended “to water down the common law requirement of proximate

cause” in FELA cases. Id. at 811.

7

e.g., Gautreaux, 107 F.3d at 335 (“[T]he Supreme Court [has] used the term

‘slightest’ to describe the reduced standard of causation between the employer’s

negligence and the employee’s injury in FELA § 51 cases.”). To establish

causation, an employer must show that a seaman’s negligence “played any part,

even the slightest, in producing the injury.” Chisolm v. Sabine Towing &

Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir. 1982) (citing Rogers v. Missouri

Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 448 (1957)). See also Sorrell,

127 S. Ct. at 802 (holding that the same causation standard applies to employer

negligence and employee contributory negligence in FELA cases). Even under

the Jones Act, however, a party must establish more than mere “but for”

causation. See Gavagan v. United States, 955 F.2d 1016, 1019-20 (5th Cir. 1992)

(“The negligence must be a ‘legal cause’ of the injury.”).

The district court held that Johnson was not contributorily negligent for

willfully concealing his previous injuries during Cenac’s employment application

process. The court cited Brown v. Parker Drilling Offshore Corp., supra, as the

Fifth Circuit’s confirmation “thatthe existence ofthe McCorpen defense does not

automatically taint a Jones Act claim.” The court then rejected Cenac’s

“argument that if not for Johnson’s misrepresentations, this accident would not

have happened.” It found that the “condition of Johnson’s back and neck did not

contribute to causing the accident,” and the fact that Johnson sustained on-the-
No. 07-30113

8

job injuries three years before his December 2005 accident did not make him

contributorily negligent.

In a bench tried admiralty case, a district court’s findings concerning

negligence and causation are findings of fact reviewable by this court only for

clear error. See Gavagan, 955 F.2d at 1019. We entertain a strong presumption

that the court’s findings must be sustained even though this court might have

weighed the evidence differently. This said, the court’s decision on contributory

negligence, which is fully paraphrased above, is hard to square with its

recitation of facts elsewhere in the opinion. The district court found that

Johnson’s low-back pain caused by the 2005 accident was “an aggravation of a

pre-existing back condition stemming from his 2001 maritime accident.” Both

injuries, as the court noted, affected his L5-S1 intervertebral disc. Going

further, in its discussion of the McCorpen defense, the court found a clear

connection, a “causal link,” between Johnson’s preemployment misrepresentations to Cenac and his current injury.

It is likely true, as the court found, that Johnson’s weakened back did not

cause Celestine to drop the 175-pound hose they were both carrying. But it also

seems likely that Johnson would never have been employed by Cenac had he

revealed the previous injuries, and having misrepresented himself onto the

payroll, he set himself up for the sort of aggravating injury found by the district

court. Both this court and the Supreme Court have previously considered the

contributory negligence ramifications of preemployment deception. In Still, the

Supreme Court reversed and remanded for trial after rejecting the proposition

that a concealed preemployment physical defect bars FELA relief as a matter of

law. Still, 368 U.S. at 46, 82 S. Ct. at 154-55. Nevertheless, the Court noted the
No. 07-30113

9

relevance, in appropriate circumstances, of such a pre-existing condition to

ascertaining

whether the injury complained of was caused by the railroad’s

negligence <in whole or in part’ by tending to show either that the

worker was not injured by the railroad at all, if injured, the railroad

was not responsible for the full extent ofthe injury, or that damages

should be diminished by the jury for contributory negligence.

Still, 368 U.S. at 46 n.14, 82 S. Ct. at 154 n.14. Similarly, in Savoie v. Otto

Candies, Inc., 692 F.2d 363, 372 (5th Cir. 1982), this court upheld a finding of

contributory negligence on the part of a seaman who

knowingly exposes himselfto conditions of employment while aware

of an illness or disability which makes those conditions unsafe to

him, or where a seaman has the possibility of securing relief from

unsafe conditions by informing his superiors of them, but continues

to work without doing so . . . . 

See also Gavagan v. United States, 955 F.2d 1016 (5th Cir. 1992) (upholding one

hundred percent contributory negligence of seaman who concealed from his

prospective maritime employer the limited use of his hand due to surgery and

proceeded to re-injure it while trying to open a valve on a tanker).

From these cases, it appears that contributory negligence may be found

where a seaman has concealed material information about a pre-existing injury

or physical condition from his employer; exposes his body to a risk of reinjury or

aggravation of the condition; and then suffers reinjury or aggravation injury. In

this case, we are unsure whether the court fully analyzed the potential for

contributory negligence, because of the tension between its findings of (a) no

causal connection between Johnson’s employment misrepresentations and the

accident, and (b)the “causal link” between the misrepresentations and Johnson’s

injury. Moreover, at another point in its opinion, the court observes that
No. 07-30113

5 The Jones Act, as mentioned, adopted by reference certain sections of FELA. At least

one of our sister circuits has stated that the sections adopted include 45 U.S.C. § 55, which

provides an employer-tortfeasor a set-off from an employee’s damage award for “any sum it has

contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to

the injured employee.” See Blake v. Delaware & Hudson Rwy. Co., 484 F.2d 204, 205 (2d Cir.

1973). Specifically, § 55 states:

Any contract, rule, regulation, or device whatsoever, the purpose or intent of

which shall be to enable any common carrier to exempt itself from any liability

created by this chapter, shall to that extent be void: Provided, That in any

action brought against any such common carrier under or by virtue of any of the

provisions of this chapter, such common carrier may set off therein any sum it

has contributed or paid to any insurance, relief benefit, or indemnity that may

have been paid to the injured employee or the person entitled thereto on account

of the injury or death for which said action was brought.

The Jones Act cases from this circuit that address the application of the collateral

10

Johnson performed heavy labor for over a year for Cenac without suffering an

injury. This fact may ameliorate the tension, although it seems somewhat

inconsistent with the “causal link” finding. We do not instruct how the court

should ultimately rule on whether Cenac has proved Johnson’s causative

contributory negligence in deliberately exposing himself to heavy labor with a

weakened back, but we must remand for the court to reevaluate its findings on

this issue.

C. The Collateral Source Rule

The collateral source rule bars a tortfeasor from reducing the damages it

owes to a plaintiff “by the amount of recovery the plaintiff receives from other

sources of compensation that are independent of (or collateralto)the tortfeasor.”

Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir. 1994); Phillips v. Western Co.

of North America, 953 F.2d 923, 929 (5th Cir. 1992) (“[T]he collateral source rule

. . . generally denies to a tortfeasor a reduction in its liability by any amounts the

plaintiff receives from a source collateralto, or independent of,the tortfeasor.”).5
No. 07-30113

source rule to employer funded benefit plans, such as Davis and Phillips, do not mention § 55.

Nonetheless, the approach these cases use to determine whether the collateral source rule

applies appears consistent with the approach used in similar FELA cases from other circuits

that do reference and discuss § 55. See Clark v. Burlington, 727 F.2d 448, (8th Cir. 1984);

Blake, 484 F.2d at 206-07.

11

The district court ruled that because the Blue Cross health insurance plan was

a collateral source, its benefits could not be deducted from his damage award.

Cenac argues thatthe district court erred. We review de novo the district court’s

conclusion that the Blue Cross payments are a collateral source. Davis, 18 F.3d

at 1245.

One purpose of the collateral source rule is to ensure that tortfeasors bear

the costs of their own conduct. See Davis, 18 F.3d at 1244 n.21. Properly

understood, however, the “rule also prevents tortfeasors from paying twice for

the same injury—a result that would achieve both overdeterrence and

overcompensation.” Id. Another purpose of the collateral source rule is to

protect plaintiffs who have the “foresight to obtain insurance.” Phillips, 953 at

930. See also Davis, 18 F.3d at 1244 n.21. “If tortfeasors could set off

compensation available to plaintiffs through collateral sources, then plaintiffs

who pay their own insurance premiums would suffer a net loss because they

would derive no benefit from any premiums paid.” Davis, 18 F.3d at 1244 n.21.

“Additionally, such plaintiffs might be left exposed to other misfortunes once

their insurance coverage was depleted by the tortfeasors’ negligence.” Davis,

18 F.3d at 1244 n.21 (citing Phillips, 953 F.2d at 930).

In most cases, identifying whether a source of compensation is

independent of a tortfeasor is “not a difficult task.” Phillips, 953 F.2d at 929.

For example, insurance policies and other forms of protection purchased by a
No. 07-30113

12

plaintiff cannot reduce a damage award, because the tortfeasor has no

connection with these types of benefits. Id. at 930-31. But when an employer

–tortfeasor funds a benefit plan, like the group health insurance plan at issue

here, “the justifications for denying a setoff become less compelling.” Id. at 931.

Generally, however, when an employee has bargained for a fringe benefit

like health or life insurance as additional consideration for employment,

“compensation received by the employee under that fringe benefit should not be

deducted from damages awarded to the employee as a result of the employer’s

negligence.” Davis, 18 F.3d at 1244. Since the employee is “already

contractually entitled to that benefit, allowing the employer to deduct such

compensation would both undercompensate the employee and provide the

employer with an undeserved windfall.” Id. To evaluate whether a benefit

derives from a collateral source, we “ordinarily assess” whether that benefit is

in the nature of a fringe benefit or deferred compensation or instead reflects a

tortfeasor’s effort to indemnify itself against potential legal liability. See Davis,

18 F.3d at 1244; Phillips, 953 F.2d at 932.

Phillips listed some factors that may assist courts in distinguishing

between fringe benefits and benefits intended to respond to legal liability. Those

factors are (1) whether the employee contributes to the benefit plan; (2) whether

the benefit plan stems from a collective bargaining agreement; (3) whether the

plan covers both work-related and non-work-related injuries; (4) whether

payments under the plan correlate with the employee’s length of service; and

(5) whether the plan contains specific language requiring benefits received under

the plan to be set-off against a judgment adverse to the tortfeasor. Phillips,

953 F.2d at 932 (citing Allen v. Exxon Shipping Co., 639 F. Supp. 1545, 1548 (D.
No. 07-30113

13

Me. 1986)). In addition to finding these factors relevant, we have stated that the

ultimate “inquiry remains whether the tortfeasor established the plan as a

prophylactic measure against liability.” Davis, 18 F.3d at 1245.

The Phillips factors seem to point toward a finding that the Blue Cross

payments were not a collateral source. Johnson did not bargain with Cenac for

a fringe benefit that covered work-related injuries. Instead, Cenac established

and fully funded the Blue Cross health insurance plan to cover only non-workrelated injuries. The plan did not arise from a collective bargaining agreement,

and it was not related to an employee’s length of service. Thus, Johnson was not

“contractually entitled” to the payments that Blue Cross made to cover the

medical expenses arising from his injury. In this case, allowing Cenac to deduct

such medical payments from his recovery would neither undercompensate

Johnson nor provide Cenac with an undeserved windfall. To the contrary,

providing Cenac a set-off would achieve one of the purposes of the collateral

source rule: preventing a tortfeasor from paying twice for the same injury.

Davis, however, constrains us to hold that the Blue Cross payments were

from a collateral source. There, a seaman sued his employer under the Jones

Act for exposing him to chemicals that allegedly caused him to develop an

extremely rare disease. Davis, 18 F.3d at 1240. Before filing suit, the seaman

received medical and disability benefits from a group insurance plan that was

established and largely funded by his employer to compensate employees only

for non-work-related injuries and illnesses. Id. While recognizing that the case

presented a close question, and that several Phillips factors weighed against

collateral source status, this court concluded that the plan’s “exclusive

application to nonwork-relatedinjuries [was] strong evidence that[the employer]
No. 07-30113

14

did not establish the [p]lan to reduce its own legal liability.” Davis, 18 F.3d at

1245 (emphasis in original). The opinion noted that because the defendant

“would not ordinarily be liable for nonwork-related injuries of its employees,”

the plan applied only under circumstances in which it was “unlikely to be found

liable for the injuries or illnesses of its employees.” Id. Thus, the plan “. . . [was]

closely akin to a fringe benefit — part-and-parcel of its employees’ compensation

package.” Id.

The court acknowledged that including medical expenses as part of the

damage award after the employer had already paid Davis’s insurance premiums

appeared to constitute double paymentin “contravention of a fundamental policy

underlying the collateral source rule.” Davis, 18 F.3d at 1245 n.31.

Nevertheless, “refusing to deduct benefit payments from the plaintiff-employee’s

damage award does not make the employer pay twice–any more than refusing

to set off [the] employee’s salary would make the employer pay twice.” Id. This

explanation, unfortunately, ignores that Davis was not entitled to receive any

benefits from the particular plan for work-related injuries. While offering no

direct solace to the employer,the court opined that ultimately the seaman might

not be paid twice for his injury: The insurance company might, as a subroger,

have the right to recover from Davis the benefits it erroneously paid. Id.

Under Davis, the plan’s exclusive coverage of non-work related injuries is

the dispositive factor in determining that the plan is a collateral source. Even

though Johnson was not contractually entitled to the benefits he received from

Blue Cross, and Cenac entirely paid his premiums for the plan, we are required
No. 07-30113

6 This result is hard to square with this court’s stated emphasis, e.g. in Phillips and

Davis, on considering whether a tortfeasor established a benefit plan in an effort to indemnify

itself against potential legal liability. For instance, if Cenac had established a health

insurance plan that covered both work-related and non-work-related injuries and contained

specific language requiring that benefits received under the plan be set-off against a judgment

adverse to the tortfeasor, then a court might find that the plan was intended to indemnify the

tortfeasor from liability. See e.g., Allen, 639 F. Supp. at 1549. Here, however, Cenac in effect

attempted to “indemnify” itself against double liability by purchasing coverage limited to nonwork-related injuries so that an employee would not be able to recover from it both plan

benefits and work related tort damages. Even though both Cenac’s plan and the hypothetical

plan described above were established in an effort to avoid double liability, the former is

considered a collateral source, but the latter is not. These conflicting results make little sense.

15

to affirm the district court’s ruling that the Blue Cross payments are a collateral

source that cannot be set off against Johnson’s damage award.6

Under the terms of the Blue Cross plan, however, if Blue Cross extends

benefits for a work-related injury and the employee’s “injury or illness is found

to be compensable under law,” then Johnson or Cenac (as the tortfeasor) “must

reimburse” Blue Cross for the benefits extended. Additionally, the plan entitles

Blue Cross to recover any payment made in error to an employee for non-covered

services. If Blue Cross were to seek reimbursement from Cenac for the benefits

extended to Johnson, Cenac would be placed in the position of paying three times

for Johnson’s injury. That result certainly cannot be justified under the

collateral source rule. In such an event, Johnson must hold Cenac harmless for

reimbursement demanded by Blue Cross against Cenac.

CONCLUSION

For the reasons stated,the judgment ofthe district courtis VACATED and

REMANDED with instructions.