### REVISED November 21, 2016
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 30009

ROBERT DEPERRODIL,
Plaintiff

- Appellee

v. BOZOVIC MARINE, INCORPORATED,
Defendant

- Appellant

Appeal from the United States District Court for the Western District of Louisiana

Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges

. RHESA HAWKINS BARKSDALE, Circuit Judge : In t his maritime

- tort action for injuries arising out of plaintiff’s being taken to a work site on a vessel operated by defendant, a third

- party tortfeasor, primarily at issue is whether the collateral

- source rule allows plaintiff to recover the unpaid, written

- off portion of his bill ed medical expenses, when the remaining, paid portion of the billed expenses was through workers’

- compensation insurance provided by his non

- tortfeasor employer, pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA). Also at issue are: w hether liability can be imposed on the vessel ’s owner for injuries United States Court of Appeals Fifth Circuit 

### FILED November 17 , 2016 Lyle W. Cayce ClerkNo. 16

- 30009

2 suffered in rough seas when the passenger knew the weather conditions and risks ; and whether a district court may use an above

- average work

- life expectancy to calculate future lost wages

. AFFIRMED in part; VACATED in part; REMANDED. I. Robert dePerrodil was injured w hile aboard the M/V THUNDERSTAR,

a 65

- foot crewboat owned and operated by Bozovic Marine, Inc. DePerrodil, a 70

- year - old oilfield consultant with more than four decades of oilfield experience, worked for Petroleum Engineers, Inc. (PEI)

. PEI chartered the vessel , operated by Captain Bozovic, to take d ePerrodil from Venice, Louisiana, to his work site on a n offshore platform. When dePerrodil and Captain Boz ovic realized dePerrodil would not be able to board the platform because the liftboat was not present, dePerrodil asked Captain Bozovic to return to port. F acing rough seas while returning , Captain Bozovic steered the vessel over an eight

- to

- ten

- foot wave at full throttle; but, he did not decelerate upon reaching the crest. The vessel fell into the wave’s trough, causing dePerrodil (who was standing in the wheelhouse) to fall to the floor. He suffered , inter alia , injuries to his back

. Pursuant to the LHWCA , PEI carr ied workers’

- compensation insurance for dePerrodil. See 33 U.S.C. § 932(a)(1). That insurer for PEI paid $57,385.50 for dePerrodil’s medical expenses
. F ollowing a bench trial for this action based on admiralty jurisdiction, the court concluded Bozovic Marine was negligent for : fail ure to “ request that dePerrodil go to the passenger area of the v ess el ”; fail ure to stay apprised of the weather conditions; and “erratic oper ation” of the vessel

. DePerrodil v. Bozovic Marine, Inc. , No. 6:13

- cv - 849, 2015 WL 8542829, at *3 (W.D. La. 10 Dec. 2015). As a result of the court’s conclud ing dePerrodil was comparatively negligent for staying in the wheelhouse , instead of moving independently toNo. 16

- 30009

3 the passenger compartment , dePerrodil received 10% liability; Bozovic Marine, 90%

. Id. at *4. In awarding dePerrodil $984,395.52 , i d. at *7 , t he court held , inter alia , the collateral

- source rule barred any discount of the medical expenses PEI and its insurer were billed , but not required to pay. I d. at *4

– 5. Accordingly, the court awarded the full amount of those expenses billed for dePerrodil ’s treatment , $186,080.30 , even though only approximately one

- third of th em

wer e paid

. Id. at *7. And, i n calculating future lost wages, the court used an above

- average work

- life expectancy of 75 years, as recommended by a n expert vocational

- rehabilitation counselor

. Id. at * 6

– 7. II. M aritime law governs this action. See Exec

. Jet Aviation, Inc. v. City of Cleveland, Ohio , 409 U.S. 249, 253 (1972). Courts exercising maritime jurisdiction apply general principle s of negligence law to tort actions

. See, e.g. , Canal Barge Co. v. Torco Oil Co. , 220 F.3d 370, 376 (5th Cir. 2000); D aigle v. Point Landing, Inc. , 616 F.2d 825, 827 (5th Cir. 1980)

. A. Regarding Bozovic Marine ’s maintaining the court er red in finding it liable for 90% of dePerrodil’s injuries , the d etermin ation of a legal duty is reviewed de novo

. Theriot v. United States , 245 F.3d 388, 394

– 95 (5th Cir. 1998). On the other hand, f indings of negligence, including causation, are reviewed for clear error. See Trico Marine Assets, Inc. v. Diamond B Marine Servs. , Inc. , 3 3 2 F.3d 779, 786 (5th Cir. 2003). Accordingly, t he conclusion that Bozovic Marine owed a duty of reasonable care is reviewed de novo ; the findings of fact, pursuant to the pro per legal standard, for clear error. In a bench trial, the court must make separate findings of fact and conclusions of law. Fed. R. Civ. P. 52(a)(1). “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, andNo. 16

- 30009

4 the reviewing court must giv e due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). “A finding is clearly erroneous when the appellate court, viewing the evidence in its entirety, is left with the definite and firm conviction t h at a mistake has been made. ” Bertucci Contracting Corp. v. M/V ANTWERPEN , 465 F.3d 254, 258

– 59 (5th Cir. 2006) (internal quotation marks omitted). 1. For the following reasons, t he proper legal duty was applied

. See DePerrodil , 2015 WL 8542829 , at *2

– 3

. As the court stated, vessel owners owe their passengers a duty of reasonable care under the circumstances. See Kerma re c v. Compagnie Generale Transatlantique , 358 U.S. 625, 630 (1959). Our court has held “shipowners, relatively speaking, are held to a high degree of care for the safety of their passengers”. Smith v. Southern Gulf Marine Co. No. 2 , 791 F.2d 416, 420 (5th Cir. 1986). Among the relevant factors are the type of carrier, the crew’s experience, the risk involved, defendant’s degree of contr ol over passengers, and defendant’s ability to take precaution against the risk. See id. at 421. Because the court properly identified Bozovic Marine ’s legal duty before evaluating liability, its negligence finding is reviewed for clear error. As discussed, t he court found Captain Bozovic breached his duty by : (1) fail ing to tell dePerrodil to move to the passenger area (failure to warn) ; (2) fail ing to stay apprised of the relevant weather conditions; and (3) operati ng the vessel erratically

. DePerrodil , 2015 WL 8542829, at *3. Bozovic Marine contends it did not breach its duty of reasonable care because the risks were open and obvious to dePerrodil : he was a longshoreman with four decades of experience in the Gulf ; knew the seas were rough ; and had a clear view of the weather conditions from the wheelhouse. Therefore, Bozovic MarineNo. 16

- 30009

5 maintains, the captain did not have a duty to protect dePerrodil from the open

and

- obvious risk of losing his balance in rough seas. A vessel owner does not nee d to warn passengers or make special arrangement s for open

- and

- obvious risks. See Massey v. Williams

McWilliams, Inc. , 414 F.2d 675, 678

– 79 (5th Cir. 1969); Superior Oil Co. v. Trahan , 322 F.2d 234, 237 (5th Cir. 1963); see also Counts v. Lafayette Crewboats, Inc. , 622 F. Supp. 299, 301 (W.D. La. 1983)

. For example , in Superior Oil , our court found a seaman comparatively negligent when he attempted to board a vessel by jumping from another deck. 322 F.2d at 235

. Critical to the seaman’s negligence was “that [he] was an experienced seaman and should have been fully cognizant of the danger involved”. Id. at 237. Thus, failure to avoid an obvious risk led to the finding of comparative negligence. See id. The case at hand is distinguishable because the court found Captain Bozovic liable based, in part, on his specific operation of the vessel, rather than his failure to war n dePerrodil of the risk

. Captain Bozovic testified he watched the prior evening’s weather report on television , but did not continue to monitor weather conditions on the date he ferried dePerrodil. DePerrodil testi fi ed : Captain Bozovic made him aware of the 25 mile

- per - hour winds; dePerrodil could see it “was choppy” ; he had been on a vessel before when the Gulf was rough ; and he was unconcerned about the weather conditions. Once underway , dePerrodil was standing in the wheelhouse, helping Captain Bozovic look for the liftboat

. When they realized dePerrodil would not be able to accomplish his job , he asked the captain to return to port. Captain Bozovic turned the vessel around, heading back into the wind and rougher

seas , telling dePerrodil to “hold on”. Confronted with four

- to

- six

- foot waves , Captain Bozovic began accelerating up the swells and dec elerating down.No. 16

- 30009

6 D ePerrodil’s expert testified this was the proper method for operat ing the vessel in high seas. Soon thereafter , however, a n eight

- to

- ten

- foot wave app roached the vessel

. Captain Bozovic accelerated to full throttle up the swell , but did not decelerate after cresting the wave. The vessel dropped into the resulting trough , and dePerrodil and a deckhand “ went weightless”. DePerrodil fell to the floor, injuring , inter alia , his back. Captain Bozovic then decreased speed and idled back to port without further incident. The court did not clearly err in concluding , inter alia , that Captain Bozovic breached his duty to dePerrodil by crest ing the eight

- foot wave at full throttle. The failure to decelerate was the proximate cause of dePerr odil’s injuries. This operational error is underscored by Captain Bozovic ’s ability to idle the vessel back to port after the accident. That is to say, but for Captain Bozovic’s operation of the vessel, dePerrodil would not have suffered his injuries. The accident would have occurred regardless of whether dePerrodil knew the risk s of rough seas

. Notwithstanding dePerrodil ’s being aware of the weather , Captain Bozovic’s operation of the vessel cannot be considered an “open and obvious” risk to dePerrodi l

. As the court stated, “inclement weather does not absolve a captain from operating his vessel in a reasonably prudent manner”. DePerrodil , 2015 WL 8542829 , at *3. Therefore, as noted, it w as not clear error to find Bozovic Marine breached it s duty of reasonable care under these circumstances. Because the operation al negligence is sufficient to sustain Bozovic Marine ’s liability , it is unnecessary to consider the court’s other bas e s for liability : failure to warn ; and failure to monitor the weather. 2. T he court’s apportionment of liability is also reviewed for clear error. Barto v. Shore Constr., L.L.C. , 801 F.3d 465, 471 (5th Cir. 2015). It foundNo. 16

- 30009

7 dePerrodil negligent for remaining in the wheelhouse , instead of moving independently to the passenger area , and assigned him 10 % liability. DePerrodil , 2015 WL 8542829, at *4. DePerrodil does not dispute this finding. Bozovic Marine , on the other hand, maintains the parties should , at least, be equally liable

. The evidence showed dePerrodil was in the wheelhouse to look for h is work site and did not intend to go below once they were in rough seas ( nor was he told to leave the wheelhouse). At trial, the parties did not present evidence about whether the injury would have occurred had dePerrod il been in the
passenger area. Based on the trial record , including Captain Bozovic’s control over the vessel , it was not clear error to assign 90 % of the liability to Bozovic Marine

. B. Bozovic Marine maintains the court erred in applying the collateral

source rule and awarding dePerrodil medical expenses as billed , rather than paid . The application of the rule is reviewed de novo

. Johnson v. Cenac Towing, Inc. , 544 F.3d 296, 304 (5th Cir. 2000 ). The collat eral

- source rule bars a tortfeasor from reducing his liability by the amount plaintiff recovers from independent sources. Davis v. Odeco, Inc. , 18 F.3d 1237, 1243 (5th Cir. 1994). It is a substantive rule of law, as well as an evidentiary rule (disallowing evidence of insurance or other collateral payments that may influence a fact finder ). Id. In its simplest form, the rule asks whether the tortfeasor contributed to, or was otherwise responsible for, a particular income source. See Bourque v. Diamond M. Drilling Co. , 623 F.2d 351, 354 (5th Cir. 1980). If not, the income is considered “independent of (or collateral to) the tortfeasor”, and the tortfeasor may not reduce its damages by that amount. Davis , 18 F.3d at 1243

. In practice, t he rule allows p laintiff s to recover expenses t he y did notNo. 16

- 30009

8 personally have to pay. See id. Without the rule, however, a third

- party income source would create a windfall for the tortfeasor. Id. at 1244. Thus, the rule reflects a policy determination: better a potential windfall for the injured plaintiff than the liable tortfeasor. See Restatement (Second) of Torts § 920A cmt. b. (Am. Law Inst. 1979) (“[I]t is the position of the law that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor”

. ). The analysis is complicated when a tortfeasor contributes to a portion of the collateral source. See, e.g. , Davis , 18 F.3d at 1244. For instance, an employe r - tortfeasor may pay par t of an employee’s health

- insurance plan. See Johnson , 544 F.3d at 305. In that situation, courts ask whether the collateral source is a bargained

- for fringe benefit. See id. If so, the fringe benefit is compensation to which the employee is already en titled; as a result, an employer cannot reduce its liability by paying employment compensation. Davis , 18 F.3d at 1244. Thus, bargained

- for fringe benefits are considered collateral to an employer’s liability. Id. On the other hand, when an employer ob tains a liability

- insurance plan, it is providing pre

- accident insurance to protect itself from post

- accident expenses. See Phillips v. Western Co. , 953 F.2d 923, 932 (5th Cir. 1992) (citing Allen v. Exxon Shipping Co. , 639 F. Supp. 1545, 1547

– 48 (D. Me. 1986)) . There, the collateral

- source rule does not apply. See id. Courts, therefore, must determine whether a payment stems from a fringe benefit or a prophylactic protection against liability. As o ur court stated , the “[c]urrent application of the coll ateral source rule thus turns on the character of the benefits received, as well as the source of those benefits”. Davis , 18 F.3d at 1244 (emphasis in original). Here, t he parties rely on a five

- factor test from Phillips to determine whether the collater al

- source rule applies to workers ’

- compensation insurance.No. 16

- 30009

9 Phillips , 953 F.2d at 932. Phillips and its progeny , however, arise in the employer

- tortfeasor context

. See, e.g. , Johnson , 544 F.3d at 305

– 07; Davis , 18 F.3d at 1244

– 45; Phillips , 953 F.2d at 927, 932. T he Phillips factors are applicable only when the tortfeasor contributes to the benefit. See Johnson , 544 F.3d at 304

– 05. PEI was n either n egligent , n or responsible for , dePerrodil’s injuries; rather, Bozovic Marine is a third

- party tortfeasor. Accordingly, the Phillips analysis is inapposite , and the standard collateral

source rule ask s whether the payment source was independent of the liable party. See Davis , 18 F.3d at 1243. PEI’s LHWCA insurer paid dePerrodil’s medical expenses . Bozovic Marine played no role in securing that insurance coverage . Thus, the collateral

- source rule applies , and Bozovic Mari ne is liable for the medical expenses the insurer paid on dePerrodil’s behalf. (33 U.S.C. § 933 e ntitles insurers to subrogation for LHWCA payments.) The question remains , however, whether the maritime collateral

- source rule allows plaintiff s to recover the amount billed, or only the amount paid. As noted, d ePerrodil was billed $18 6 , 08 0 .30 , but the insurer was only required to
pay $57 ,385.50 ; the balance was written

- off

. N either dePerrodil, PEI, nor its insurer were ever liable for the $128,69 4.80 write

- off. ( Along that line, citing Louisiana and California law, t he court stated : “ A plaintiff cannot recover economic damages for medical fees that the provider is precluded, either by agreement or by law, from collecting from the employer ”

. DePerrodil , 201 5 WL 8542829, at *5. But, notwithstanding its just

- stated rule , and without further analysi s, it awarded dePerrodil the amount initially billed , $186,080.30

. Id. at *7. ) There is no direct authority regarding the treatment of written

- off LHWCA medical expenses in the maritime

- tort context

. Consequently , we must look to persuasive authority , namely state and analogous maritimeNo. 16

- 30009

10 authority

. See Manderson v. Chet Morrison Contractors, Inc. , 666 F.3d 373, 38 1 (5th Cir. 2012) (reviewing prior state

- law and maritime decisions)

. Stat e laws differ as to their approach to written

- off expenses in tort cases; within our circuit alone, three different rules prevail. In Mississippi, the collateral

- source rule allows plaintiff s to recover write

- offs. See Wal

- Mart Stores, Inc. v. Frierson , 818 So. 2d 1135, 1139

– 40 (Miss. 2002) (allowing plaintiff to submit evidence of written

- off Medicaid expenses). Texas, on the other hand, does not “allow recovery as damages of medical expenses a health care provider is not entitled to charge”. Haygood v. De Escabedo , 356 S.W. 3d 390, 396 ( Tex. 2012) (considering amounts charged in excess of Medicaid limits)

. In contrast to the rules in each of these two S tates, Louisiana allows write

- off recovery if plaintiff provide d c onsideration for the benefit or suffer ed a diminution in patrimony. See Bozeman v. State , 879 So. 2d 692, 705

– 06 (La. 2004). In the maritime context, o ur court considered a similar issue in Manderson , 666 F.3d at 382

. There, the question was , inter alia , whether the collateral

- source rule allows recovery of written

- off medical expenses when an employer paid the expenses as part of its maritime cure obligation. The Manderson court stated: [O]ur court has repeatedly held an injured seaman may recover maintenance and cure only for those expenses “a ctually incurred”. E.g. , Davis , 18 F.3d at 1246; Boudreaux v. United States , 280 F.3d 461, 468 (5th Cir. 2002). Accordingly, the relevant amount is that needed to satisfy the seaman’s medical charges. This applies whether the charges are incurred by a
s eaman’s insurer on his behalf and then paid at a written

- down rate, or incurred and then paid by the seaman himself, including at a non

- discounted rate. 666 F.3d at 382. Based on this discussion, our court held it was error to award the amount charged , rather than paid. Id.No. 16

- 30009

11 Although Manderson is not binding

— it involved maritime cure, not a maritime tort or LHWCA insurance

— it is the most applicable of the various
ap proaches to write

- offs

. Moreover, i ts rationale is very persuasive because

m aritime cure and LHWCA insurance create similar obligations for employers. Cure is a vessel

- owner’s long

- established duty to pay medical expenses for seamen injured at sea. Id. at 380. It compels an employer to pay work

related medical expenses , regardless of “fault or negligence of the shipowner”. Bertram v. Freeport McMoran, Inc. , 35 F.3d 1008, 1013 (5th Cir. 1994). The LHWCA was enacted in part based on shortcoming s of maritime

cure. See generally P.C. Pfeiffer Co. v. Ford , 444 U.S. 69, 75, 78 (1979) (discussing Congressional intent behind the LHWCA)

. Longshoremen and harbor workers do not necessarily qualify for maritime maintenance and cure because a significant portion of their work is done on shore. Id. To cover these workers, Cong ress enac ted the LHWCA, which incorporates and replaces several aspects of maritime common law. See 33 U.S.C. § 905 (“Exclusiveness of liability”); P.C. Pheiffer , 444 U.S. at 75 (“Congress intended that a worker’s eligibility for federal benefits would not depend on whether he was injured while walking down a gangway or while taking his first step onto the land.”). The LHWCA req uires employers to carry worker s ’

- compensation insurance to pay for work

- related injuries. 33 U.S.C. § 932. Like maritime

cu re, LHWCA creates a no

- fault basis for paying a longshoreman’s medical
expenses. 33 U.S.C. § 904(b) (“Compensation shall be payable irrespective of fault as a cause for the injury.”). When a third

- party tortfeasor is responsible for the employee’s injury , cure and LHWCA insurance function in the same

manner: the employer (or its insurer) has an immediate duty to pay medical expenses even though it is not at fault. These similarities counsel that Manderson

— prohibiting write

- off recovery

— provides the correct rule for both maritime cure and LHWCA maritime

- tort cases.No. 16

- 30009

12 In sum , LHWCA medical

- expense payments are collateral to a third

party tortfeasor only to the extent paid ; i n other words, under those circumstances, plaintiff may not recover for expenses billed , but not paid. Therefore, t he district court erred in awarding the full amount billed. Instead, the proper measure of those damages i s the far lesser amount the insurer paid to cover dePerrodil’s medical expenses : $57, 385.50

. C. Finally, Bozovic Marine asserts the court miscalculated dePerrodil’s future lost earning s because it did not use the Bureau of Labor Statistics (BLS) work

- life expectancy average. Damages calculations are findings of fact, reviewed for clear error. Comar Marine, Corp. v. Raider Marine Logistics , L.L.C. , 792 F.3d 564, 574 (5th Cir. 2015). Courts use work

- life expectancy data to calculate future earning s , unless there is evidence supporting a variation from the average. E.g. , Madore v. Ingram Tank Ships, Inc. , 732 F. 2 d 475, 478 (5th Cir. 1984). “Such an average is not conclusive. It may be shown by evidence that a particular person, by virtue of his health or occupation or other factors, is likely to live and work a long er , or shorter, period than the a verage.” Id. (emphasis omitted). According to BLS data , dePerrodil had a work

- life expectancy of 72 years
. At trial, however, dePerrodil presented a vocational

- rehabilitation counselor as an expert witness. She interviewed dePerrodil on two occasions and reviewed his medical history

. She concluded it was “ very reasonabl e ” dePerrodil would work until age 75 ; this conclusion was based on : dePerrodil’s testimony that he and his wife had an agreement he would work until age 75; his work history; his ear nings records; and his healthcare providers’ recommendations for future treatment

. D ePerrodil’s expert economist then provided the court with two calculations, one using BLS ’ age

- 72 work

- life expectancy ; the other, the vocational counselor’s age - 75 expect ancy. With bothNo. 16

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13 calculations before it , the court awarded future lost wages based on a n age - 75 retirement. See DePerrodil , 2015 WL 8542829, at *5

– 6. Bozovic Marine points to two cases in which a court erred by using the plaintiff’s stated retirement goal , rather than the BLS average. In Madore , the parties each presented expert testimony supporting a 25.8

- year work

- life expectancy for the injured seaman. 732 F.2d at 478. The calculations were based on the BLS average, and the parties presented no other evidence on the matter. Id. Nonetheless, the district court awarded lost

- wage damages based on a work

- life expectancy of 30 years ( until the plaintiff turned 65 )

. Id. Our court held this was error because the parties presented no evidence to justify a departure from the BLS average. Id. Another district court chose a n above

- average calculation “in the middle” of the BLS projection and the Social Security retirement age of 67

. See Barto , 801 F.3d at 475

. There, the only relevant evidence was plaintiff’s testimony he planned to wo rk until he could retire, “[w] hatever the retirement age is”. Id. Our court stated : “even if t he district court believed [plaintiff] wanted to work until age 6 7, wanting to work until age 67 is not the only or even the most significant factor in determining whether someone actually will work until age 67”. Id. (emphasis in original). Citing Madore , our court held this vague testimony was insufficient to suppor t an above

- average work

- life expectancy. Id. at 475

– 76. Here, the court ’s use of age 75 to calculate damages was not clear ly

erroneous
. DePerrodil fully developed the evidentiary basis for such a departure from the BLS average
. Unlike in Madore , dePerrodil presented an expert ( vocational

- rehabilitation counselor ) and the medical history upon which the expert based her opinion. As was the case in Barto , dePerrodil’s stated retirement goal was a critical piece of information

. Unlike Barto , however , d ePerrodil’s goal was specific and corroborated by an agreement withNo. 16

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14 his wife to work until age 75. Furthermore, the vocational counselor agreed it

was a “ very reasonable ” goal , considering his medical history, work history, and future medical prognosis

. Neither of the plaintiffs in Madore or Barto presented a vocational expert to justify a departure from the BLS statistics. For these reasons , it was not clear error for the court to credit the vocational counselor’ s ex pert testimony and award lost

- wage damages until age 75. III. For the foregoing reasons, the judgment is AFFIRMED , except for the award of medical expenses ; that award is VACATED . Th is matter is REMANDED for entry of an amended judgment consistent with this opinion.