The Willful and Wanton Denial of Maintenance and Cure: When Refusal Becomes Punitive

The Short Answer

An employer's duty to pay maintenance and cure is not optional, and the law treats a wrongful refusal seriously. The consequences escalate with the employer's conduct. A simple failure to pay means the employer owes what it should have paid. An unreasonable failure — a refusal without a diligent investigation or a reasonable basis — can add compensatory damages and attorney's fees. And at the top of the ladder is the willful and wanton denial: a refusal that is arbitrary, capricious, callous, or in bad faith. That conduct exposes the employer to punitive damages.

The Supreme Court confirmed in Atlantic Sounding Co. v. Townsend that punitive damages remain available for the willful and wanton failure to pay maintenance and cure. This is the remedy that gives the duty real force. Without it, an employer could treat nonpayment as a cost-free pressure tactic — stop the checks, wait out the injured worker, and settle cheap. The punitive remedy changes that calculation: an employer that withholds maintenance and cure in bad faith risks far more than the daily allowance it tried to avoid. This page covers the bad-faith end of the spectrum; the maintenance and cure overview explains the underlying duty and what it covers. The firm has obtained a willful-and-wanton maintenance-and-cure verdict that was affirmed on appeal; that case work is collected on the complex maritime cases page.

The Escalating Standard at a Glance

Employer liability for failing to pay maintenance and cure rises in tiers, keyed to how culpable the refusal is:

• Tier 1 — Failure to pay. The employer must pay the maintenance and cure it wrongly withheld. No additional culpability required.
• Tier 2 — Unreasonable or negligent failure. A refusal made without reasonable diligence — for example, without a prompt and adequate investigation — exposes the employer to compensatory damages for the consequences of nonpayment (such as a worsened medical condition).
• Tier 3 — Callous, arbitrary, or recalcitrant failure. A refusal that is callous, willful, or in bad faith exposes the employer to attorney's fees under Vaughan v. Atkinson.
• Tier 4 — Willful and wanton failure. The most serious denials — arbitrary, capricious, or in reckless disregard of the seaman's rights — expose the employer to punitive damages under Atlantic Sounding Co. v. Townsend.

The tiers are cumulative in effect: a willful-and-wanton denial typically carries the lower-tier consequences (back payment, compensatory damages, fees) along with the punitive exposure.

Why Punitive Damages Are Available

For a time, it was an open question whether punitive damages could be recovered for the failure to pay maintenance and cure. Atlantic Sounding Co. v. Townsend settled it. The Supreme Court held that punitive damages have long been available at common law for wanton, willful, or outrageous conduct, that maintenance and cure is an ancient maritime duty predating modern statutory schemes, and that nothing in the Jones Act displaced the traditional remedies available for breach of that duty. The result: a seaman may recover punitive damages where the employer's failure to pay maintenance and cure is willful and wanton.

The reasoning matters for how the remedy is argued. Punitive damages here are not a novelty grafted onto maritime law — they are a traditional remedy for a traditional duty. An employer that characterizes a punitive claim as exotic or overreaching has the history backwards. The duty is old; so is the remedy for its egregious breach.

What Makes a Denial "Willful and Wanton"

Not every wrongful refusal is willful and wanton. The line is conduct that goes beyond mistake or even ordinary unreasonableness into the territory of arbitrariness, callousness, or reckless disregard. Courts have described the qualifying conduct in overlapping terms — arbitrary and capricious, willful and callous, recalcitrant, in bad faith. The common thread is that the employer either knew the duty was owed and refused anyway, or refused in a manner that shows it did not care whether the duty was owed.

Several markers tend to push a denial toward the willful-and-wanton end of the spectrum:

Refusal without any investigation. An employer that stops or never starts payment without making a reasonable inquiry into the claim cannot later claim a good-faith basis it never developed. The absence of investigation is itself evidence of indifference.

Reliance on a defense the employer knew was weak. Asserting a McCorpen concealment defense that is missing an element, or cutting off cure on a hand-picked physician's opinion against a treating physician's recommendation, can support a finding that the refusal was not a good-faith dispute but a pretext. (The limits of the McCorpen defense are detailed on the McCorpen defense page.)

Ignoring information that confirmed the duty. An employer that receives medical documentation establishing the seaman's continued need for care, and keeps refusing, moves from arguable to arbitrary.

Using nonpayment as leverage. Where the record shows the employer withheld maintenance and cure to pressure a settlement — letting an injured worker go without income or treatment to force a cheap resolution — the refusal looks less like a dispute and more like coercion.

Pattern conduct. Evidence that the employer handles maintenance-and-cure claims this way as a matter of practice, rather than as an isolated error, strengthens the case that the refusal was willful rather than mistaken.

By contrast, an employer that promptly investigates, identifies a genuine and specific basis to dispute the claim, and litigates that dispute in good faith is not willful and wanton even if it ultimately loses. The remedy targets the manner of the refusal, not the fact of being wrong.

The Role of the Pro-Seaman Tilt

Maintenance and cure resolves ambiguities in the seaman's favor. That rule does work at the willful-and-wanton stage as well as at the entitlement stage. An employer cannot manufacture a dispute out of ordinary uncertainty and then point to its own manufactured "dispute" as a good-faith reason for nonpayment. Where the supposed basis for refusal rests on resolving a genuine ambiguity against the seaman — exactly the opposite of what the law requires — the refusal is not insulated by the label "dispute." It is the kind of conduct the willful-and-wanton standard is meant to reach.

This is why the entitlement analysis and the bad-faith analysis are connected. The weaker and more strained the employer's asserted basis for nonpayment, the more a factfinder can infer that the real reason was not a legitimate dispute but a decision to withhold what was owed.

How These Cases Are Proven

A willful-and-wanton claim is built on the employer's conduct, documented over time. The questions that drive it:

• When did the employer learn of the injury or illness, and what did it do? A prompt, adequate investigation is expected. Delay and inaction are evidence.
• What basis did the employer give for stopping or withholding payment, and was that basis reasonable when given? A basis invented after the fact, or contradicted by information the employer already had, undercuts good faith.
• Did the employer ignore treating-physician recommendations in favor of its own retained opinion? Choosing the answer that lets the employer stop paying, against the treating physician, is a recurring feature of bad-faith denials.
• What were the consequences to the seaman? Forgone treatment, a worsened condition, financial hardship — these support both compensatory damages and the inference of callousness.
• Is there a pattern? Evidence of how the employer treats maintenance-and-cure claims generally can show the refusal was a practice, not a slip.

Because the standard reaches the manner of refusal, the documentary record — claim notes, medical correspondence, internal communications about whether to pay — is often where these cases are won. The firm's affirmed willful-and-wanton verdict turned on building exactly that record and presenting the refusal as the deliberate course of conduct it was.

When the Case Has More Than a Willful-and-Wanton Fight

A willful-and-wanton claim rarely stands alone. It usually rides alongside the underlying maintenance-and-cure entitlement, and often alongside other complications: a McCorpen concealment defense the employer used as its stated reason for refusing, a contested seaman-status finding that determines whether maintenance and cure was owed at all, a Jones Act negligence or unseaworthiness claim arising from the same injury, or a foreign-flagged vessel or foreign-national crew that raises which-law-governs questions about the duty and its remedies.

When the bad-faith claim is entangled with those other questions, the case is no longer just about whether the refusal was arbitrary — it is about how the willful-and-wanton exposure interacts with the concealment defense, with status, and with the negligence case. The firm's work on complex maritime cases, including a willful-and-wanton maintenance-and-cure verdict affirmed on appeal, is collected there.

In practice

In practice, when an employer's denial of cure crosses from merely wrong to callous, punitive damages and attorney's fees come into play. The firm obtained exactly that — a willful-and-wanton finding against a drilling employer, affirmed on appeal — which is what gives a seaman real leverage when care is wrongfully cut off.

Related case studies

• Deaver v. Noble Drilling — the willful-and-wanton finding, affirmed on appeal.

Prior results do not guarantee a similar outcome. See all case studies.