Often employers will actually file a claim against an injured employee in federal court under what is known as a declaratory judgment lawsuit. The purpose of this claim is to have the federal court declare that you have reached maximum cure and that your employer no longer owes you maintenance and cure.
This is a preemptive-type suit wherein your company takes the offensive and actually goes to court to have your maintenance and cure rights declared terminated. Generally, your company is not seeking any type of money or damages from you, but rather it is simply seeking a legal opinion from a judge that you have reached maximum cure or maximum improvement and that your company no longer owes you maintenance and cure.
Ironically, you are entitled to file a counterclaim under the Jones Act against your employer arising out of such declaratory actions. In other words, if your company files a declaratory action against you relating to your maintenance and cure, you can not only answer the lawsuit, but you can also file your own claim directly against your employer.
Our office has been very successful in obtaining significant judgments and settlements for our clients when we have actually filed their claims within the declaratory judgment action. Even though your company is asking the court to rule in their favor, you are entitled to have the court consider your claims including potential Jones Act claims for negligence. In this way, not only can the judge deny your company’s claim against you, but he can actually rule in your favor and award you money damages under the Jones Act.
Also, if you file a Jones Act claim within the declaratory judgment action, you are then entitled to present all claims to a jury rather than a judge. In doing so, a jury will decide whether you have reached maximum improvement or maximum cure under your maintenance and cure claim. The jury would also be allowed to decide the merits of your Jones Act negligence claim against your company. We usually recommend that this approach is taken since it takes your maintenance and sure claim away from the judge and allows a jury to decide your rights. Generally, a company is more comfortable having a judge decide your case rather than an unknown jury, although this will vary depending upon the judge assigned to your case.
More articles related to maintenance and cure:
