May 2013
Notes From Your Updater - In the President's Fiscal Year 2014 Budget is a proposal to replace the Defense Base
Act program with a new Government-wide benefit program, the Overseas
Contractors Compensation Act (OCCA). The new statute, (not yet published),
would create a Government-wide fund to replace the patchwork of contract
coverage now in effect under the DBA. The program would pay benefits directly
from the Federal fund administered by the DOL and agencies would be billed only
for their share of benefits and administrative costs. The proposal appears on page 772 of the
proposed Budget, under Office of Workers' Compensation Programs. Thanks to John
Chamberlain for bringing this to my attention.
On April 15, 2013, the
U.S. Supreme Court denied the petition for certiorari in the case of Fernandes v. Carnival Corporation,
Docket No. 12-456 [see August 2012 Longshore Update]. This case
involved the court’s holding that a seaman’s maintenance and cure claim was
also subject to arbitration.
On April 15, 2013, the
U.S. Supreme Court denied the petition for certiorari in the case of Renda Marine, Inc. v. United States of America,
Docket No. 12-699. This case held the Army Corps of Engineers entitled to a
judgment against this dredging company.
On April 1, 2013, the U.S.
Supreme Court granted the petition for certiorari in the case of Atlantic Marine Construction Co., Inc., v. J-Crew
Management, Inc., Docket No. 12-929. The questions posed by
the petition were: (1) Whether the Court’s decision in Stewart Organization,
Inc. v. Ricoh Corp. changed the standard for enforcement of clauses that
designate an alternative federal forum, limiting review of such clauses to a
discretionary, balancing-of-conveniences analysis under 28 U.S.C. § 1404(a);
and (2) whether district courts should allocate the burdens of proof among
parties seeking to enforce or to avoid a forum-selection clause. In a 1972
decision in M/S Bremen v. Zapata Off-Shore, the Court ruled that federal courts
should operate on the premise that such a clause in a contract is valid, and
should generally be enforced. But in a 1988 ruling in Stewart Organization v.
Ricoh Corp., the Court ruled that federal, not state, law can govern a motion
to transfer a case between federal courts. The Stewart opinion has been
interpreted by some courts as indicating that private contractual agreement on
the proper venue cannot trump a federal judge’s decision on that question. The
new case grows out of a dispute between a Virginia contractor and a Texas
subcontractor over payments for work the subcontractor did on a project at Fort
Hood, an Army post near Killeen, Texas. Their contract specified that any
dispute would have to be decided by a court in Virginia, but the subcontractor
sued in a federal court in Texas, and the Fifth Circuit Court refused to
transfer the case to Virginia. The case will be heard and decided next Term.
On April 17, 2013, the 5th
Circuit Court of Appeals re-released Insurance Co. of the State of PA, et al. V. Director,
OWCP [Vickers] as a published opinion. The opinion was
unpublished when it was originally released on February 15, 2013 [see March 2013 Longshore Update].
On April 25, 2013
Representative Holt (D-NJ) introduced a House bill (H.R. 1743) and Senator Menendez (D-NJ)
introduced a companion Senate bill (S. 828) to amend the Oil Pollution Act of
1990 to require responsible parties to pay the full cost of offshore oil
spills, and for other purposes.
The US Coast Guard seeks comments on its merchant mariner
medical evaluation program and possible alternatives. The Coast Guard is
particularly interested in views as to whether it should establish a designated
medical examiner program along the lines utilized by the Federal Aviation
Administration or the Federal Motor Carrier Safety Administration. Comments
should be submitted by May 2nd, 2013.
The US Coast Guard has
developed new versions of two important forms: CG-2692 – Report of Marine Casualty and CG-2692B
– Report of Required Chemical Drug and Alcohol Testing following a Serious
Marine Accident. The forms, in PDF format, can be filled out on a computer.
WINCHESTER OVERRULED BY EN BANC 5TH CIRCUIT
NEW ORLEANS DEPOT
SERVICES, INC. V. DIRECTOR, OWCP, ET AL. [ZEPEDA]
Juan Zepeda was employed by
New Orleans Depot Services, Inc. (NODSI) as a container repair mechanic. Prior
to his employment with NODSI, Zepeda performed container and chassis
maintenance for New Orleans Marine Contractors (NOMC) for approximately five
months. During his employment with both NODSI and NOMC, Zepeda was allegedly
exposed to loud noises on a continuous basis and did not use hearing
protection. Zepeda claimed to suffer from an 11.3 % binaural hearing
impairment, for which he sought permanent partial disability benefits under the
LHWCA. At his formal hearing an administrative law judge determined that
Zepeda’s second employer, NODSI, was liable for Zepeda’s benefits as his
last maritime employer. The Benefits Review Board affirmed. NODSI petitioned
for review. The appellate panel determined that there was substantial evidence
in the record to support the ALJ's factual determination that the work area at
NODSI was a maritime situs under the LHWCA because the functional nexus
requirement was satisfied since the marine containers, which were used for
marine transportation or had previously been used in marine transportation,
were stored and repaired at the area, and a claims adjustor acknowledged the
presence of marine facilities in the surrounding area. There was sufficient
evidence in the record to support the ALJ's factual finding that the employee,
while employed by NODSI, was a maritime employee for purposes of the LHWCA
because he repaired marine shipping containers at least some of the time. As a
matter of first impression, the appellate panel held that substantial evidence
supported the ALJ's determination that Zepeda was a maritime employee while he
worked for NODSI as a container repair mechanic. The court noted the Supreme
Court's statement in Schwalb that employees who are injured while
maintaining or repairing equipment essential to the un/loading are covered by
the Act. The appellate panel concluded that there was sufficient evidence in
the record to support the ALJ's factual finding that Zepeda was a maritime
employee. In a lengthy dissenting opinion, Judge Clemens opined that neither
the situs nor the status requirement was met in this case, stating that the
majority's reasoning swept so broadly that it threatened to swallow every
employer with even a tangential relation to the maritime industry. She pointed
out that container repair cannot possibly be “integral” to loading because the
two processes happen separately and neither is dependent on the other.
Notwithstanding, Judge Clement’s vigorous and lengthy dissent, the appellate
panel denied the petition for review [see October 2012 Longshore Update]. Following
a request for rehearing or en banc review, the Fifth Circuit granted the
petition for en banc review [see December 2012 Longshore Update].
Initially, the appellate court noted that it took the case en banc primarily
to decide whether the Zepeda was injured in an area “adjoining” navigable
waters. The court acknowledged that, in 1980, the en banc 5th
Circuit interpreted the geographic component of situs in Winchester,
where it stressed the desirability of avoiding any hard line for defining what
is “adjoining.” The court then proceeded to review how its sister circuits had
taken varying positions on the interpretation of “other adjoining areas,”
focusing primarily on the 4th Circuit’s Sidwell
interpretation that the plain language of the LHWCA requires that covered
situses actually “adjoin” navigable waters, not . . . that they merely be in
“the general geographic proximity” of the waterfront. Following a thorough
review of the statutory history and jurisprudence, the en banc court adopted
the Sidwell definition of “adjoining” navigable water to mean
“border on” or “be contiguous with” navigable waters and overruled the contrary
definition and analysis of Winchester and its progeny
inconsistent with its opinion. The appellate court noted that it was adopting
the more restrictive definition primarily because it was more faithful to the
plain language of the statute. The court was also influenced by the fact that
the vague definition of “adjoining” it had adopted thirty years ago in Winchester
provided little guidance in determining whether coverage is provided by the
Act. The appellate court concluded that, because the NODSI facility where
Zepeda worked did not border on navigable waters, it was not a covered situs
and held Zepeda was not entitled to benefits under the Act from NODSI. The en
banc court vacated the award of the BRB as against NODSI and remand for further
proceedings. Only Judges Stewart, Dennis and Grave dissented from the majority en
banc opinion. (5th Cir, April 29, 2013) 2013 U.S. App. LEXIS
8674
YOU’RE GOING TO PAY FOR
DEMOTING ME. NO WE’RE NOT!
GINDVILLE V. DIRECTOR,
OWCP, ET AL. [GREENWICH
TERMINALS, LLC]
John Gindville, a career
longshoreman on the Philadelphia/Camden waterfront, claimed that he injured his
right knee while walking down a gangway during a shift he was working for
Greenwich Terminals, LLC. He filed a claim for benefits under the LHWCA, which
Greenwich refused on the ground that no work-related injury had occurred. Until
one week prior to the alleged injury, Gindville served as a "ship
boss" for Greenwich for over20 years; however, on shortly before his
alleged injury, Gindville was demoted. At the hearing before the ALJ there was
testimony that Gindville responded to the demotion news angrily and threatened
the company by stating he would purposely get hurt. As for the injury Gindville
allegedly suffered, it was undisputed that there were no witnesses to the
accident. Gindville’s testimony that he reported the injury when it occurred
was also rebutted by the ship’s captain. Additionally, no date of accident or
manner of injury was mentioned in Gindville’s medical records. The ALJ issued
an order denying Gindville's claim for medical and disability compensation
benefits, finding Gindville had failed to prove an accident occurred in the
course of employment, and thus had not established a prima facie case
for compensation. On appeal, the Benefits Review Board affirmed the ALJ’s
determination that Gindville had failed to make out a prima facie case
necessary to invoke the § 20(a) presumption of a work-related injury. On
further appeal, the appellate court rejected Gindville’s assertions that the
ALJ erred in addressing evidence other than Gindville's submissions to
determine whether he established a prima facie case. It noted the ALJ’s
authority to make credibility determinations based on evaluation of all
witnesses and evidence presented. The Board refused to disturb the ALJ’s
credibility determinations, finding them neither patently unreasonable nor
inherently incredible. Accordingly, the appellate court denied the petition for
review of the Board's decision affirming the ALJ‟s denial of benefits. (3rd
Cir, April 25, 2013, UNPUBLISHED) 2013 U.S. App. LEXIS 8428
9TH ADOPTS CHAIN
OF CAUSATION TEST OVER IRRESISTIBLE IMPULSE TEST
KEALOHA V. DIRECTOR,
OWCP; ET AL. [LEEWARD MARINE]
While working as a ship
laborer, William Kealoha fell about 25 to 50 feet from a barge to a dry dock,
landing on a steel floor. He suffered blunt trauma to the head, chest, and
abdomen; a fractured rib and scapula; and knee and back pain. Kealoha later
resumed work at his employer, Leeward Marine Inc., but after a while, left
Leeward. He filed a workers' compensation claim under the Longshore Act for the
injuries from his fall. Kealoha subsequently shot himself in the head, causing
severe head injuries. He sought compensation for these injuries under the
Longshore Act, alleging his suicide attempt resulted from his fall and the
litigation over that claim. He supported his claim by offering the testimony of
an expert psychiatrist, who diagnosed Kealoha with major depressive disorder
due to multiple traumas and chronic pain, post-traumatic stress disorder, and a
cognitive disorder. The psychiatrist opined that chronic pain from the fall and
stress from the resulting litigation caused Kealoha to become increasingly
depressed, angry, and anxious, and worsened his already poor impulse control
such that he impulsively attempted suicide. An ALJ denied Kealoha's claim for
benefits, finding that Kealoha's suicide attempt was not the "natural and
unavoidable" result of his fall because other, more significant factors
led to the attempt. Rather than accepting the findings of Kealoha’s medical
expert, the ALJ instead credited the testimony of Leeward's retained expert,
who opined that the suicide attempt was not an episode of "impulse
dyscontrol." Alternatively, the ALJ found that Kealoha's injuries were not
compensable because §3(c) of the Act precludes compensation for an injury
occasioned solely by the intoxication of the employee or by the willful
intention of the employee to injure or kill himself or another. Kealoha
appealed, arguing that the BRB has recognized an exception to the §3(c) bar,
holding that when a worker's suicide attempt results from an "irresistible
impulse" caused by a work-related injury §3(c) does not bar compensation
because such a suicide attempt is not "willful" under the Act. The
Board reversed, holding that instead of applying the "naturally and
unavoidably" standard, the ALJ should have afforded Kealoha a presumption
under §20(a) that his suicide attempt was causally related to his fall. Additionally,
the Board held that the ALJ erred by failing to address whether Kealoha's
illness was "so severe that he was unable to form the willful intent to
act." The Board instructed the ALJ that planning of the claimant's suicide
attempt alone is not enough to show 'willful intent. On remand, the ALJ held
that Kealoha established that his fall was a cause of his suicide attempt, and
that Leeward failed to rebut this presumption. Nevertheless, the ALJ found that
compensation was barred because Kealoha's suicide was "intentional"
and not the result of an "irresistible impulse." The ALJ found that
Kealoha spoke about committing suicide the night before, made comments to his
wife the morning of his suicide attempt that indicated he was thinking about
suicide, and threatened to commit suicide six hours before he actually shot
himself. The ALJ found that Kealoha's actions were "consistent with a
planned, and intentional action," and therefore his suicide attempt could
not have been the result of an irresistible suicidal impulse. The Board
affirmed. On further appeal, Kealoha argued that the ALJ and Board should have
assessed whether his fall caused his suicide, rather than whether his fall led
Kealoha to attempt suicide out of an "irresistible impulse." Kealoha
and Leeward disagreed on the proper test to determine a compensable suicide.
Leeward argued that the ALJ applied the correct test, while Kealoha argued that
the ALJ improperly assumed that because Kealoha planned his suicide, it was not
compensable.
The appellate court ruled
that a claimant under the LHWCA may be entitled to benefits for injuries
incurred from a suicide attempt when there is a direct and unbroken chain of
causation between a compensable work-related injury and the suicide. The
appellate court held that evidence that a claimant planned his suicide does not
necessarily preclude compensation under the Act because the proper inquiry is
whether the claimant's work-related injury caused him to attempt suicide. The
panel held that the claimant need not demonstrate that the suicide, or attempt,
stemmed from an irresistible suicidal impulse. The panel concluded that the ALJ
erroneously applied the irresistible impulse test, and remanded for the
Benefits Review Board to apply the chain of causation test or to remand to the
ALJ so that the ALJ may have the first opportunity to do so. (9th
Cir, April 9, 2013) 2013 U.S. App. LEXIS 7125
LONGSHOREMEN HAD ACTIVE
CONTROL OVER OPERATION (CONT.)
CAJEIRA V. SKRUNDA
NAVIGATION, C/O LSC, ET AL.
Carlos Cajeira was a
longshoreman employed by Kinder Morgan Inc., who was assisting with the release
of defendants’ tank ship, when he allegedly sustained injuries. Kinder Morgan
was using its own 10" hoses to discharge petroleum from defendants’ tank
vessel. After the petroleum was fully discharged from the vessel, the hoses
were disconnected and the ship’s crane was used to lower the hoses onto the
dock so that Cajeira and his coworkers could stow them away. During the
lowering of the fourth hose, Cajeira was four to five feet away from the edge
of the pier and suddenly fell off the dock and into the water. Although Cajeira
claimed that an unexpected movement by the hose caused his accident, he could
not identify what caused the hose to move and allegedly knock him into the
water, and there was no evidence that the crane malfunctioned. Cajeira sought
to recover damages under §905(b) of the LHWCA. Defendants moved for
summary judgment, claiming they did not breach any duty of care under §905(b)
of the LHWCA. Following a bench trial and a review of the evidence, the court
found that defendants did not violate any duties owed to Cajeira. Although
Cajeira argued that defendants violated the active operations duty by
negligently operating the vessel's crane, causing the hose/line to jerk,
defendants countered that Cajeira’s could not establish that the active
operations duty was even triggered. Cajeira and the hose crew, by directing the
crane, were in operational control of the crane. The court found that Cajeira
had failed to present any evidence that the crane operator acted negligently in
carrying out his duties or executed any orders contrary to those given to him
from Kinder Morgan’s crew. In construing the facts in a light most favorable to
Cajeira, the court concluded the facts presented indicate that defendants did
not retain substantial control over the crane as Cajeira and his coworkers were
commanding the crane's movements. Defendants’ Motion for Summary Judgment was
granted [see November 2011 Longshore Update]. Cajeira
appealed the district court's grant of summary judgment, contends that because
one of the defendants retained operational control of the crane at the time of
the incident, it was a question of fact as to whether the vessel crew was
negligent in causing the crane line to jerk. Cajeira further argued that an
inexperienced crewmember was in charge of operations, creating a dangerous
condition for which defendants should be held liable. The appellate court
rejected these arguments, noting that although one of the defendants retained
physical control of the crane, the crane was operated under the direction of
the Kinder Morgan hose crew. There was no evidence that the crane operator
executed any orders contrary to those given by the hose crew. The appellate
court concluded that Cajeira failed to meet his burden of establishing a genuine
issue of material fact as to the existence of an active control duty for
substantially the same reasons as the district court, whose judgment was
affirmed. (3rd Cir, April 23, 2013) 2013 U.S. App. LEXIS 8203
HIMALAYA STATUTE OF
LIMITATIONS EXTENDS TO AGENT OF CARRIER
CLEVO CO., V. HECNY
TRANSPORTATION, INC.
Clevco Company contracted
with Amazon PC Industria e Comerciao de Microcomputadores, LTDA for shipment of
goods to a buyer in Brazil. The agreement between Clevco and Amazon was very
basic and did not contain a statute of limitations. Amazon prepared bills of
lading that included both a one-year statute of limitations and a Himalaya
clause extending all benefits of the provisions of the bills of lading to its
servants, agents, and subcontractors. Under Clevo and Amazon's negotiated
terms, the Hecny Shipping Group was designated to handle all of the contract
shipments. Hecny misdelivered the cargo to the buyer before Clevco had been
paid. The buyer went bankrupt. Clevco brought suit against Hecny thirteen
months after the misdelivery. The US Court of Appeals for the Ninth Circuit
ruled that the Himalaya clause in a bill of lading extended the bill of
lading’s one-year statute of limitations to the freight forwarder, an agent of
the carrier, allowing Hecny to assert the bill of lading’s statute of
limitations as a defense. The appellate court held that a guarantee, which
established no express statute of limitations, was initially effective to place
the seller and the freight forwarder in direct contractual privity. That
initial relationship was modified when the bills of lading issued. By operation
of a Himalaya clause, the benefit of the one-year statute of limitations
in the bills of lading was extended beyond the non-vessel-operating common
carrier that issued the bills of lading to the freight forwarder, an agent of
the carrier. The district court’s grant of summary judgment in favor of Hecny
was affirmed. (9th Cir, April 26, 2013) 2013 U.S. App. LEXIS 8511
THEY SHOULD HAVE FILED MY
LONGSHORE CLAIM FOR ME
LONG V. THE DEPARTMENT
OF LABOR AND INDUSTRIES
Aileen Long's husband,
Robert, died from malignant mesothelioma caused by asbestos exposure. Because
Long worked for a maritime employer, the widow was entitled to benefits under
the LHWCA and, thus, was excluded from the general provisions of the Washington
Industrial Insurance Act (WIIA). Nevertheless, Long’s widow chose to purse her
claim under the WIIA. Her claim was denied because the WIIA's
last-injurious-exposure rule, codified under WAC 296-14-350(1), did not apply
because maritime law provided the proper avenue for her claim. Long appealed
the superior court's order granting summary judgment to the Department of Labor
and Industries and affirming the decision of the Board of Industrial Insurance
Appeal's decision denying Long's application for workers' compensation benefits
under the WIIA. Long argued that she is entitled to WIIA benefits because her
husband's last injurious exposure to asbestos occurred when he was employed by
a non-maritime employer covered by the WIIA. Long argues, in the alternative,
that the Department violated RCW 51.12.102 when it denied her temporary and
interim benefits and when it failed to pursue a claim under the LHWCA on her
behalf. The appellate court affirmed, finding that the widow remained excluded
from the WIIA, even though she was now barred from her entitlement to LHWCA
benefits for accepting third-party settlements without the prior agreement of
the liable maritime employer. Thus, under Wash. Rev. Code §51.12.100(1), the
superior court did not err by granting the Department's summary judgment motion
affirming the Board's decision denying the widow benefits. However, because the
widow filed a claim for benefits on March 16, 2009, but the Department did not
determine that it was not the liable insurer and did not deny her claim until
February 25, 2010, the appellate court held that the Department erroneously
denied the widow temporary, interim benefits under Wash. Rev. Code
§51.12.102(1) during that time period. But, under Wash. Rev. Code
§51.12.102(4)(a), the Department was not required to pursue a LHWCA claim on
her behalf. The appellate court affirmed the portion of the superior court's
order affirming the Department's denial of the widow’s claim, but it reversed
the portion of the superior court's order affirming the Department's denial of
temporary benefits and remanded the matter to the Department for further
proceedings. (Wash. 2nd App, March 19, 2013) 2013 Wash. App. LEXIS
617
WIDOW FORFEITS LHWCA DEATH
BENEFITS UNDER §933(G)
KNOBLOCK, ET AL. V.
OFFSHORE PROCESS SERVICES, ET AL.
Nolan Phillip Knoblock, Jr.,
a LOOP Marine maintenance employee, was killed, due to an alleged malfunction
in the crane he was using. Evangeline Knoblock, who filed suit
individually and on behalf of the decedent, alleged that the decedent was
changing an overhead light bulb using an overhead crane as a work platform.
While he was performing the task, the crane unexpectedly moved forward and
pinned him between the crane and a cable tray. After he was released, the
decedent was pronounced dead on the scene. The widow filed suit in state court,
against multiple defendants, alleging that their negligence, specifically their
failure to inspect the crane and certify that it was safe for use, caused the
decedent's death. The widow sought damages for medical and burial expenses,
loss of services and support, grief and mental anguish, and the decedent's pain
and suffering prior to death. Liberty Mutual intervened asserting its rights
under a LHWCA worker's compensation insurance policy. The widow and the Oil
States defendants (Oil States Martec Crane Services, Inc.; Oil States MCS,
Inc.; and Oil States Industries, Inc.) negotiated a settlement agreement and
subsequently perfected that agreement. Liberty Mutual then terminated the
widow’s LHWCA death benefits one week prior to trial, asserting that the widow
executed the settlement without obtaining Liberty Mutual's written approval as
required by law. Following a jury trial, the jury returned a verdict for
defendants, finding that defendants were not negligent. The widow subsequently
filed a motion in federal court for rescission of the settlement agreement with
Oil States and for relief from the order of partial dismissal, arguing that the
compromise can be rescinded because of an error of fact, namely that the widow
mistakenly believed that Liberty Mutual had approved the compromise as required
by the LHWCA. The widow further sought relief from the court's final judgment
pursuant to FRCP 60(b)(1), arguing that she requested these forms of relief not
in order to re-litigate her claims against Oil States, but because she hopes to
provide Liberty Mutual with an opportunity to approve a new settlement with Oil
States, or alternatively to voluntarily dismiss her claims against Oil States
so as to maintain the worker's compensation benefits. Oil States and Liberty
Mutual opposed the Plaintiff's motion, arguing that §933(g) of the LHWCA requires
approval in writing within 30 days of a settlement and the widow failed to
submit required forms, to include Liberty Mutual in the settlement
negotiations, or to make Liberty Mutual a signatory to the settlement
agreement. The widow also moved for a new trial based upon an argument that the
jury was inadvertently given an index of all joint exhibits, which listed and
briefly described some exhibits that the court had not admitted into evidence.
The court found that there was no dispute that Liberty Mutual never consented
in writing to the widow’s compromise with Oil States, nor did it promise to do
so. The court found that the widow failed to show how Liberty Mutual's inaction
and unresponsiveness caused her to commit an error of fact as to the existence
of written consent. Accordingly, the court held that the widow was not entitled
to rescind the compromise under Louisiana law, and the motion was denied. The
court also found that there was no reasonable possibility that the jury's
findings as to the lack of liability on the part of the inspection companies
were in any way influenced by mentions of an applicable worker's compensation
regime, whether included in an admitted exhibit or in the index. Therefore, the
court also denied the widow’s request for a new trial. (USDC EDLA, April 26,
2013) 2013 U.S. Dist. LEXIS 60002
UNTIMELY §905(B) CLAIM
“RELATES BACK” TO ORIGINAL TIMELY COMPLAINT
SANTANA-WATTS V.
ADMIRAL LINE (UK) LIMITED, ET AL.
Deborah Santana-Watts was
allegedly injured on May 26, 2009, while working as a longshoreman, for Trapac,
Inc., a stevedoring company on board a vessel owned by Admiral Line Limited and
managed by Zodiac Maritime Agencies Limited. On May 25, 2012, Watts filed
her §905(b) claim under the LHWCA against Mitsui & Co. (USA) and Mitsui
& Co. Ltd., mistakenly believing that they owned the vessel involved in her
alleged injury. However, Watts failed to timely serve either defendant. The
court ordered Watts to show cause by November 5, 2012 as to why the court
should not dismiss her case for failure to prosecute. In response, Watts
explained her difficulty in identifying the true owner of the vessel and
informed the court that she had just served a complaint on Hyundai America
Shipping Agency, the entity she believed to be the vessel’s owner. As a result,
the court discharged the order to show cause and did not dismiss the case.
Watts later amended her complaint, replacing the Mitsui Defendants with Admiral
Line and Zodiac. Both new defendants answered the complaint and then moved to
dismiss on statute of limitation grounds, pursuant to FRCP 56. The court
acknowledged the three year statute of limitation and noted that Watts had
filed her original complaint against the Mitsui Defendants within three years
of her alleged injury, and that she filed and served the amended complaint
naming Admiral Line and Zodiac more than three years after her alleged injury.
The court then addressed the question of whether the amended complaint
"related back" to the date of the original complaint. The parties did
not dispute that Watts’ claims against the current defendants arose out of the
same events asserted in her original complaint. The court also found that the
current defendants received actual notice of the action within the period as
required by Rule 15(c)(1)(C), and had not claimed that they would be prejudiced
by the six-month delay between the filing of the original complaint and the
service of the amended complaint. Finally, the court found that the original
complaint and Watts’ post-filing conduct indicated that Watts’ failure to name
Defendants in the original complaint was the result of a mistake, rather than
an intentional, tactical choice. There was no evidence offered to the contrary.
The court concluded that Watts had satisfied all three requirements of Rule
15(c)(1)(C) and her amended complaint related back to the date of the
original complaint, filed within the applicable statute of limitations.
Defendants’ motion to dismiss was denied. (USDC NDCA, April 12, 2013) 2013 U.S.
Dist. LEXIS 53243
EMPLOYER/VESSEL OWNER DEFEATS
DUAL CAPACITY 905(B) CLAIM (CONT.)
ROBIE V. SOUTHERN
MARINE CONSTRUCTION COMPANY, ET AL.
Kenneth Robie commenced an
action, under §905(b) of the LHWCA, against his employer, Southern Marine
Construction Company, in Southern Marine’s dual capacity as the vessel owner,
for allegedly breaching its duty of reasonable care as a vessel owner to
provide him a safe place to work while aboard its barge. Robie was storing
welding leads, when he attempted to step on metal beams, his foot went through
the plywood flooring, causing him to fall and strike his lower back on one of
the floor beams. Robie alleged that he fell through the hull of a barge as a
direct and proximate result of the negligence of Southern Marine. At that
time of the accident, Southern Marine was engaged in a construction project,
building a large cylindrical mooring structure. Once discovery was complete,
both parties moved for summary judgment. The court began its analysis by
dividing Southern Marine into a hypothetical independent employer and
independent vessel owner. It was uncontested that Southern Marine, qua vessel
owner, moved the barge from one project, to the project where Robie’s alleged
accident occurred, and then turned over the barge to Southern Marine, qua
employer. The parties disputed whether the weakened and deteriorated plywood
flooring, which was obvious and known to Southern Marine, qua employer,
and its employees (including Robie), was the kind of hazard the employer and
its workers would reasonably be expected to cope with safely during the course
of performing their operations. Viewing the evidence in the light most
favorable to Robie, the court found that Robie had failed to provide any
evidence that Southern Marine, qua\fs24fs24 vessel owner, acted
unreasonably under the circumstances presented. While the court acknowledged
that a breach of the turnover duty must occur at the moment of turnover, the
turnover of a reasonably safe vessel requires an "additional showing"
beyond pointing to a hazardous condition. In particular, the turnover duty
required Robie to put forth evidence that the obvious and known condition of
the flooring was not the kind of hazard that a construction company may
reasonably be expected to cope with safely during the course of performing its
operations, which he had failed to do. Additionally, the court found there was
no evidence from which a reasonable jury could conclude that Southern Marine, qua
vessel owner, violated either the active control duty or the duty to intervene.
Southern Marine’s Motion for Summary Judgment was granted and Robie’s Motion
for Summary Judgment was denied [see February 2013 Longshore Update].
Following entry of the court’s judgment, Robie moved the court to alter,
amend or vacate its order pursuant to FRCP 59(e), claiming the court failed to
consider genuine disputes as to issues of material fact and considering sua
sponte whether the condition of the plywood flooring was the kind of hazard
that an expert and experienced construction company and its workers should have
reasonably been expected to cope with safely during the course of performing
its operations. At the outset, the court noted that it did not raise any issue sua
sponte and pointed out that Southern Marine had raised this issue at
multiple points in its initial motion and reply. The court found the remaining
issues raised by Robie were either without merit or issues proper for appellate
review-not reconsideration. Robie’s Motion to Alter, Amend, or Vacate was
denied. (USDC EDKY, April 15, 2013) 2013 U.S. Dist. LEXIS 54246
COURT FINDS LOUISIANA
OILFIELD ANTI-INDEMNITY ACT INAPPLICABLE
ARMIJO, ET AL V. TETRA
TECHNOLOGIES, INC.
Five plaintiffs, Abraham
Mayorga, Josue Armijo, Kyle Ivy, Jose Ponce-Zuniga, and Charles Bourque, Jr.,
filed suit seeking damages for personal injuries they allegedly sustained
offshore while assisting in a crane operation to remove a dismantled bridge
that had connected two sections of an oil production platform located in the
Gulf of Mexico off the coast of Louisiana. Maritech Resources, LLC owned the
platform and Maritech and Tetra Technologies, Inc. were engaged in
decommissioning the platform, including removal of the bridge. Three of the
plaintiffs are alleged to be Tetra employees and crew members of its derrick
barge. A fourth plaintiff was the employee of a welding subcontractor. Mayorga
was alleged to have been an employee of Vertex Services, LLC, who worked as a
rigger, and was assigned to work from Tetra’s derrick barge. Plaintiffs alleged
they were directed by their Tetra supervisors to make various cuts to the
supporting structures of the bridge. While the plaintiffs were on the bridge,
the north end of the bridge collapsed, and the straps gave way. The bridge and
everyone on it fell 70 to 80 feet into the Gulf of Mexico. The plaintiffs filed
suit against Tetra and Maritech, alleging that their injuries were caused by
the negligence of Tetra and Maritech and/or the unseaworthiness of the derrick
barge. Tetra and Maritech then filed an indemnity action against Vertex and its
insurer, Continental Insurance Company, alleging that Vertex was obligated to
defend and indemnify them against Mayorga's claims based upon a Master Service
Agreement.. Tetra and Maritech also alleged that they were additional insureds
under Vertex's General Liability insurance policy with Continental and that, as
such, they are entitled to be defended, indemnified, and held harmless from
Mayorga's claims and to be indemnified for any liability or expenses arising
out of the action, including reimbursement of costs and attorney fees. The
parties filed cross motions for summary judgment on the indemnity claim. Tetra
and Maritech sought declaratory judgment proclaiming that Vertex and
Continental are obligated to defend and indemnify them against Mayorga's claims.
Continental sought dismissal of the indemnity claims on grounds that the
indemnity agreement between Tetra and Vertex is void under the Louisiana
Oilfield Anti-Indemnity Act, which applied by virtue of the Outer Continental
Shelf Lands Act. Alternatively, Continental argued that even if the agreement
was not void, insurance coverage was excluded under crew members exclusion
provisions of the policy. The court initially found that the damages owed by
Tetra and Maritech to Mayorga were covered under the policy unless the LOIA
applied (via OCSLA) to render the MSA's indemnity and additional insured
provisions void; or the damages are otherwise excluded under the policy. The
court found that Continental had failed to point to any evidence supporting the
existence of a nexus to a well. Therefore, the court found that no genuine
dispute existed and concludes that Tetra and Maritech were entitled to judgment
as a matter of law declaring that the indemnity agreement contained in the MSA
was not void, but is valid and enforceable as it related to the claims of
Abraham Mayorga. The court also found that Mayorga's work stood in contrast to
the allegations about work performed by the crew of the derrick barge. Given
the absence of a crew member allegation regarding Mayorga, one cannot
reasonably infer from the complaint that Mayorga was a crew member. Second,
Mayorga applied for and was found eligible for compensation under the LHWCA. By
definition, Mayorga would not have been eligible for such compensation had the
OWCP found him to be a member of the crew of a vessel. With respect to the
policy’s watercraft exclusion, the court observed that certain of Mayorga’s
claims against Tetra and virtually all of the claims against Maritech were
completely independent of Tetra's ownership of the derrick barge. Therefore,
the court held that the watercraft exclusion did not apply to bar coverage for
additional insured liability to the extent it arose from one or more of these
independent sources. Based on the record, the court was unable to determine
what if any of Tetra's and/or Maritech's liability arose from ownership and/or
use of the derrick barge versus other independent sources of liability,
concluding that summary judgment was not appropriate on this issue. Tetra and
Maritech's Motion for Summary Judgment on Third Party Demand, was denied in
part, in that it was denied with respect to additional insured coverage under
the policy to the extent that Mayorga's injuries arose out of Tetra's and/or
Maritech's ownership, maintenance, or use of the derrick barge, and granted in
part in all other respects. Continental’s Motion for Summary Judgment was
granted in part, in that it was granted with respect to additional insured
coverage under the policy to the extent that Mayorga's injuries arose out
of Tetra's and/or Maritech's ownership, maintenance, or use of the derrick
barge, but was denied in all other respects. (USDC EDLA, March 27, 2013) 2013
U.S. Dist. LEXIS 43446
NO ADMIRALTY JURISDICTION
WHEN TORT OCCURS ENTIRELY ON LAND
FERNANDEZ V. CERES
MARINE TERMINALS, INC., ET AL.
Alba Fernandez sued Ceres
Marine Terminals, Inc. in state court, alleging that Ceres negligently failed
to maintain its premises in a reasonably safe condition, and negligently failed
to correct the dangerous condition. Fernandez, as a business invitee, was on
Ceres’ premises when Ceres’ agent, servant and/or employee allegedly placed a
hand truck behind Fernandez without her knowledge, causing Fernandez to trip
over the hand truck and fall to the ground. Fernandez further alleged
that when the individual tried to help Fernandez back to her feet, he stepped
on the hand truck, crushing her fingers, which were still beneath the hand
truck. Ceres removed the matter to federal court on the basis of admiralty jurisdiction,
arguing that Fernandez sustained injuries when she was lawfully utilizing the
Tampa Port Authority facilities before embarking on a passenger cruise ship,
causing the action to arise under the laws of the United States within the
meaning of 28 U.S.C. §1333. Fernandez moved to remand, arguing that admiralty
cases are not federal questions cases for purposes of removal, unless there is
diversity of citizenship between all plaintiffs and all defendants and the
amount in controversy exceeds $75,000 (which her claim did not), or if the case
arises under a federal question other than admiralty law. Fernandez further
argued that her case was not governed by admiralty law. To satisfy the location
test, the underlying injury must occur on navigable waters or must have been
caused by a ship. Ceres responded that admiralty jurisdiction existed because
the conditions of both location and connection with maritime activity were
satisfied. After consideration of the parties’ arguments, the court concluded
that the tort occurred entirely on land and not on navigable waters, and was
not caused by a vessel on navigable water. Therefore, the locality test had not
been met. In order to have admiralty jurisdiction, both the locality test and
nexus test must be met. The court held that it did not have admiralty
jurisdiction over Fernandez’s and granted the motion to remand. (USDC MDFL,
April 17, 2013) 2013 U.S. Dist. LEXIS 54992
And on the Admiralty
front . . .
LOZMAN WINS AGAIN
LOZMAN V. CITY OF
RIVIERA BEACH, FLORIDA, ET AL.
In response to a state court
eviction, Fane Lozman filed counterclaims; the second amended counterclaim
alleged a free speech violation by a retaliatory eviction. A final order
denying eviction was entered and a jury found for Lozman on the counterclaim.
While a third amended counterclaim was pending, the state court dismissed the
second amended counterclaim based on an agreement. Lozman then filed his federal
complaint and a fourth amended state court counterclaim. The state court
entered a stipulation dismissing the entire case, and the district court
dismissed all but an admiralty claim. Lozman sought review of the district
court’s decision, which dismissed his amended §1983 complaint against
appellees, a city and several individuals, asserting deprivation of his
Constitutional rights, retaliation, harassment, and false arrest; the dismissal
was based on the Rooker-Feldman doctrine and res judicata principles. On
appeal, the appellate court found that the state court's stipulated dismissal
did not finally resolve Lozman’s claims in the second amended counterclaim for
Rooker-Feldman purposes. Res judicata did not bar any of Lozman’s
federal causes of action because the allegations, which were based on conduct
occurring in city council meetings, were not incident to whether the eviction
was retaliatory. Collateral estoppel did not apply because the issues raised in
the state eviction action were not fully litigated, and resolution of Lozman’s
admiralty claims also had no preclusive effect. The appellate court reversed
the district court's dismissal of the amended complaint and remanded the case
for further proceedings. (11th Cir, April 1, 2013) 2013 U.S. App.
LEXIS 6523
ARMY CORPS OF ENGINEERS
ENGAGES IN A BIT OF PETTIFOGGERY
VILLAGE OF BALD HEAD
ISLAND V. U.S. ARMY CORPS OF ENGINEERS, ET AL.
The Village of Bald Head
Island, a coastal town in North Carolina, commenced an action under the
Administrative Procedure Act (APA) and admiralty jurisdiction against the U.S.
Army Corps of Engineers to require it to honor commitments made to the village
and other towns when developing its plans to widen, deepen, and realign
portions of a navigation channel. The district court dismissed the complaint
and the village appealed. The village challenged the Corps' performance of a
project for failure to implement commitments made by the Corps to those
communities to protect beaches adjacent to a waterway being dredged against the
adverse effects of the dredging project and to restore sand to the beaches.
Like the district court, the appellate court found that the Corps' project implementation
was neither an agency action nor a final agency action subject to judicial
review under 5 U.S.C. §704 because the Corps' failure to adequately protect and
renourish the village's beaches was not an action as used in the APA, under 5
U.S.C.§551(13), the Corps' performance in maintaining the project was not
action that was circumscribed and discrete, and the village had not explained
how its challenge to the ongoing maintenance of the channel could have
satisfied the finality requirement. The Corps' alleged failure to act
consistent with its commitments to maintain and protect the beaches adjacent to
the channel was not subject to judicial review under 5 U.S.C.§706(1) because
the Corps' statements were hardly binding commitments. Finally, the village
could not have invoked the district court's admiralty jurisdiction because the
contracts were not maritime contracts because the principal objective of the
contracts was not maritime commerce, but the preservation of area beaches. The
district court's judgment was affirmed. (4th Cir, April 15, 2013)
2013 U.S. App. LEXIS 7470
2ND CIRCUIT
RESOLVES DISPUTE OVER SALVAGE AND POLLUTION PREVENTION
DONJON MARINE CO.,
INC., V. WATER QUALITY INSURANCE SYNDICATE
Water Quality Insurance
Syndicate (WQIS) appealed from a judgment of the district court in favor of
Donjon Marine, making a salvage award in the amount of $236,272. WQIS’s
principal argument was that the district court erred by granting Donjon’s
summary judgment motion. First, WQIS contended that Donjon was not owed the
lump sum payment it sought because Donjon failed to complete its obligations
under the Salvage Agreement. Second, WQIS claimed that Donjon over billed for
pollution prevention work. The appellate court found that there could be no
genuine dispute that WQIS guaranteed debts to Donjon for salvage work completed
under the Salvage Agreement. The parties disagreed about what Donjon needed to
do before the work would be deemed "completed." The court found that,
in the context of FRCP 56, WQIS failed to raise a genuine dispute as to the
fact of Donjon’s completion of the salvage work. Further, the district court
did not err in concluding that WQIS gave a guarantee of payment, not of
collection. However, the appellate court vacated the judgment with regard to
the pollution prevention services agreement noting that, at the hearing, the
district court appeared to have conflated the pollution prevention services
agreement with WQIS’s guarantee of the Salvage Agreement. The judgment was
affirmed with regard to the Salvage Agreement and vacated and remanded with
regard to the pollution prevention services agreement. (2nd Cir,
April 15, 2013, UNPUBLISHED) 2013 U.S. App. LEXIS 7451
ABUSE OF THE DISCOVERY
PROCESS CAN RESULT IN SEVERE SANCTIONS
MCWILLIAMS V. EXXON
MOBIL CORP., ET AL.
Monte McWilliams alleged that
he developed acute promyelocytic leukemia as a result of exposure to benzene
while gauging barges during twenty-seven years as a petroleum inspector
employed by numerous independent contractors. During five of those years, he
worked on premises or vessels owned by Chevron U.S.A., Inc., Texaco, Inc., and
Union Oil Company of California (hereinafter “defendants"). McWilliams brought
suit under maritime law and the Jones Act, originally naming thirty-five
defendants, but only defendants remained in the case at the time of trial.
Holding that defendants were, at best, uncooperative in discovery, the trial
court sanctioned defendants for bad faith violation of its discovery orders,
invoking La. Code Civ. P. §1471 to strike all defenses asserted by defendants,
leaving only the issue of damages. Defendants sought a writ application to the
appellate court on the judgment striking its defenses, which was denied,
because the appellate court found there was no abuse of discretion in the trial
court's ruling. The state Supreme Court affirmed. Following a jury trial, the
jury was charged that "the amount of damages is solely for you to determine."
As a result, defendants were found liable for $5.5 million in actual damages
and $12 million in punitive damages. The defendants appealed, asserting five
assignments of error and appealing the trial court's interlocutory judgment
striking of all their defenses for violations of La. Code Civ. P. art. 1471.
They also appealed the jury award of $12,000,000.00 in punitive damages,
prejudgment interest on future damages, and the award of $458,419.87 in past
medical expenses in favor of McWilliams. In its review of the record, the
appellate court observed that the defendants squandered every opportunity to
proceed in the litigation in a proper manner. They ignored deposition requests
for months on end, forcing the trial court to continue this matter from May
2011 to January 2012. Even with that additional time, they failed to make any
good faith effort to participate in discovery, despite the fact that McWilliams
has been diagnosed with a potentially terminal illness. The defendants were
warned that further recalcitrance would incur a severe sanction. The trial
court felt that it had discovery orders in place that defendants blatantly
violated, and that a lesser penalty would be ineffective and that McWilliams
would be prejudiced by any further delay. The appellate court concluded that
nothing in the record indicated this to be an abuse of the trial court's
discretion or that the trial court, appellate court, or state supreme court
were wrong in their respective earlier determinations. The defendants claimed
evidentiary errors on the part of the trial court relieved McWilliams from
presenting a prima facie case of causation and liability, likening it to
a default procedure requiring a prima facie case; however, the appellate
court noted that defendants did not default, they were simply deprived of the
right to litigate the issue of liability due to their bad faith actions.
Likewise, the appellate court found no error in the trial court's ruling
that defendants were not entitled to off-sets for settlement amounts paid by
other defendants in the suit that settled prior to trial. Again, because of the
discovery sanction establishing liability, comparative fault ceased to be an
issue. The appellate court agreed with defendants that the trial court erred in
failing to include evidence as to McWilliams' shortened life expectancy.
Defendants proffered evidence that due to several health problems other than
the leukemia, McWilliams had an expected lifespan of seven-and-one-half years
shorter than an average person. This evidence was unchallenged by McWilliams
and accepted as fact by the trial court. Nevertheless, the trial court failed
to allow defendants to put that information before the jury. As a result, the
appellate court rendered, reducing the award of future medical expenses by
$51,000.00 ($6,800 multiplied by seven-and-one-half years) to $188,972.00. The
appellate court also found that the trial court erred by awarding prejudgment
interest on McWilliams future lost earnings of $415,112.00. The appellate court
also reduced the award to McWilliams for his total billed past medical costs of
$458,419.87, to the undisputed amount actually paid by McWilliams of
$264,510.35. Defendants also contended that the award of $12 million in
punitive damages violated federal maritime law by exceeding a 1:1 ratio with
the roughly $5.5 million compensatory damage award. The appellate court
rejected this argument, holding that, due to their own actions, defendants' defenses
to all aspects of liability were stricken, including liability for punitive
damages. Defendants failed to cite any jurisprudence challenging the inherent
constitutionality of La. Code Civ. P. §1471 as pertaining to punitive damages,
and the appellate court found none. Defendants were afforded constitutional due
process in that they received a hearing to determine what, if any, penalties
would result from their continuous and willful violations of the trial court's
orders. The appellate court also found defendants' assertion, that any punitive
damage award must adhere to a 1:1 compensatory to punitive damages ratio,
devoid of merit. Rather, the appellate court found that the U.S. Supreme Court
did not establish a general rule pertaining to punitive damages, but rather,
narrowly tailored that result to the unique case before it. The judgment of the
trial court was affirmed in part, as amended, and reversed in part. (La.
App. 3rd Cir, April 03, 2013) 2013 La. App. LEXIS 633
Updater Note: I find the appellate court’s analysis of the
punitive damages issue in this case extremely troubling. The appellate court’s
ridiculous assumption that the U.S. Supreme Court agreed with the Clausen
court‘s analysis of Exxon Shipping Co. v. Baker , because it denied
certiorari in that case, was totally irresponsible. Overwhelmingly, studies of
judicial policy-making have indicated policy-making via the certiorari process
when petitions are accepted but not when they are denied (see G.
Schubert, Quantitative Analysis of Judicial Behavior (1959); Schubert, Policy
Without Law: An Extension of the Certiorari Game, 14 Stan. L. Rev. 284 (1962)).
PHONEY BALONEY DOESN’T PLAY
WELL WITH JUDGE ENGLEHARDT
STOKES V. ATLANTIC
SOUNDING CO., INC. ET AL.
Clarence Stokes was employed
by Atlantic Sounding Company, Inc. as a seaman and a crew member of one of its
dredges that was undergoing extensive repairs in a Weeks Marine, Inc.
maintenance yard. Stokes claimed that, as he was descending a temporary ladder
into the pump hold, the ladder, which was tied off to a grated landing, somehow
moved causing him to fall into the pump hold. There were other employees
working in the pump hold at the time, none of whom witnessed the alleged fall
or even heard anything, such as a thud or Stokes’ hardhat hitting the deck.
After Stokes cried out for help, personnel called for an ambulance and Stokes
was transported to the nearest hospital. Ambulance paramedics found no obvious
injuries, bleeding or signs of broken bones, and noted that Stokes was able to
move his extremities and did not show any signs of severe edema or bruising.
Stokes was able to wiggle his fingers and toes and press his feet down. Upon
arrival at the hospital, however, Stokes claimed that he was paralyzed from the
mid-chest down and could not move his lower extremities. After a lengthy
hospital stay, thousands of dollars of diagnostic studies, and being seen by
several doctors, no physical injury was associated with Stokes’ alleged fall.
Instead, he was diagnosed with probable malingering with a differential
diagnosis of conversion reaction, and a complete psychiatric workup was
recommended. Atlantic Sounding made arrangements to transfer Stokes to a
psychiatric facility, but Stokes refused and his attorney made arrangements to
have him transferred to a different non-psychiatric medical facility in
Mississippi, closer to Stokes’ home. After Stokes refused recommended
psychiatric care, Atlantic Sounding filed a complaint for declaratory judgment
in the Southern District of Mississippi. Stokes later filed his own complaint,
alleging Jones Act negligence, unseaworthiness and failure to pay maintenance
and cure, in the Eastern District of Louisiana, where the two proceedings were
eventually consolidated. Following a bench trial the court initially found that
there was no evidence that Stokes had sustained an injury as the result of his
alleged accident. That left the issue of a conversion disorder, a condition
which the medical professionals agreed was best treated by a psychiatrist.
Stokes had not been seen by any psychiatrist other than Atlantic Sounding’s
psychiatric expert in preparation for litigation, who determined in unequivocal
terms that Stokes was engaging in gross malingering and did not have a
conversion disorder. Although the court declined to rule on Atlantic Soundings’
McCorpen defense to Stokes’ maintenance and cure claim, it did
observe that Stokes’ testimony that he falsely answered questions, in order to
obtain employment with Atlantic Sounding, suggested to the court Stokes’ willingness
to give false answers in order to obtain a specific benefit. The court also
found that Stokes failed to establish Jones Act negligence or unseaworthiness
and had forfeited further maintenance and cure by rejecting recommended
psychiatric treatment. The court rendered judgment in favor of Atlantic
Sounding, dismissing Stokes’ case with prejudice with costs to be taxed against
Stokes. (USDC EDLA, APRIL 3, 2013) CA 11-2366
Updater Note: Thanks to Matt Popp, of Waits, Emmett, Popp &
Teich of New Orleans, for an excellent defense in this case. It was really a
fun case to watch play out in the courtroom and I’m glad Judge Englehardt was
able to see through all Stokes’ smoke and mirrors. Stokes has already appealed
the judgment, probably only out of a combination of spite and desperation. He
had already procured a wheelchair and surveillance showed he had a wheelchair
ramp built at his house to play his baloney up as much as he possibly could.
And his attorneys are likely out of pocket as well for continuing unreasonable
and unnecessary medical treatment Stokes continued to receive and for probable
advances to Stokes.
COURT BELIEVES SEAMAN WAS
FORTHRIGHT IN HIS DISCLOSURES
FRICKE V. JOHN W. STONE
OIL DISTRIBUTOR, LLC.
Clyde Fricke allegedly
suffered injuries to his neck and shoulder, while employed by John W. Stone Oil
Distributor, LLC, when the vessel he was assigned to collided with a barge. At
the time of the collision, Fricke was asleep in his bunk. Fricke had filed four
prior lawsuits for personal injuries arising out of a work related accident and
had undergone six prior spinal surgeries as a result of prior accidents and
injuries. Fricke settled his last most recent injury claim within three months
of seeking employment with Stone Oil. As a part of his application for
employment with Stone Oil, Fricke underwent a pre-employment and failed to
disclose that he was being prescribed and filling prescriptions for narcotic
pain relievers, muscle relaxers and anxiety medication. Stone Oil moved for
partial summary judgment on Fricke’s claim for maintenance and cure, claiming
that Fricke made material misrepresentations during his hiring process with
Stone Oil and did not suffer any new injuries in connection with the alleged
accident and injury while employed with Stone Oil. Stone Oil also argued that
Fricke failed to provide truthful information on his Back History
Questionnaire. Specifically, Stone Oil claims Fricke was untruthful because he
did not disclose that he had been recommended for, but had not undergone,
lumbar surgery and a C3-4 C4-5 facet rhizotomy/neurotomy, or that he was
currently being treated for neck pain. Additionally, he did not disclose his
prior shoulder diagnosis and surgical recommendation. Fricke claimed that he
has always disclosed his medical condition regarding his spine. Fricke conceded
that he did not disclose his previous shoulder condition, but this was because
he did not remember his previous treatment. He claimed that he did not check
the "yes" box for taking medication because it asked if he was taking
medication "now," and he was not taking medication at the time. As to
the dispute as to whether Fricke truthfully answered the question about whether
he was taking medication, the court found that Stone Oil had not demonstrated
that the answer to this question would have been material, or demonstrates a
causal relationship between Fricke's past injuries and his current injury. The
court noted that Fricke had complained of several injuries and found that Stone
Oil had not taken the time in its motion for partial summary judgment to
explain why each injury is actually similar to a previous injury. Without
further information, the court declined to determine whether, as Stone Oil
claimed, Fricke suffered no new injuries. Stone Oils motion for partial summary
judgment was denied. (USDC EDLA, April 29, 2013) 2013 U.S. Dist. LEXIS 60636
SHIPOWNER’S “SHIP HAS SAILED”
BECAUSE LIBERAL JURIST LET’S IT
HICKS V. VANE LINE
BUNKERING, INC.
Ciro Hicks filed suit against
his employer, Vane Line Bunkering, Inc., asserting maritime law causes of
action under the Jones Act and general maritime law. Hicks alleged that Vane's
negligence caused injury to his shoulder, while Hicks was employed as a mate on
Vane’s tug boat. He further asserted that Vane failed in its obligation to
provide him with maintenance and cure. Vane asserted that its decision to stop
the maintenance and cure payments was proper since the obligation ceases after
Hicks reached maximum medical improvement. Hicks presented his case during a
four-day jury trial. At the conclusion of trial, the jury returned a partial
verdict for Hicks totaling $445,000 in compensatory and punitive damages. While
the jury found for Vane on the Jones Act and the unseaworthiness claims related
to Hicks initial injury, it found that Hicks was entitled to compensatory and
punitive damages on the maintenance and cure cause of action. Specifically, the
jury awarded Hicks additional past maintenance in the amount of $77,000; future
maintenance in the amount of $16,000; and future cure payments in the amount of
$97,000. The jury further determined that Vane’s termination of maintenance and
cure payments was unreasonable and willful and wanton. As such, the jury
awarded $132,000 for past pain and suffering and $123,000 in punitive damages.
Vane moved to set aside the jury verdict, arguing that the $445,000 awarded was
wholly unsupported by the evidence. While Vane initially kept Hicks on its
payroll for three months, the company then terminated him and began paying Hicks
$15 per day in maintenance, never requesting information regarding Hicks’
actual costs of food and lodging. At trial Hicks presented uncontroverted
evidence that his actual costs of food and lodging was $69.67 per day. Hicks
alleged that his severe shoulder pain returned in the year following his
initial surgery. His treating physician initially restricted Hicks from lifting
or the overhead use of his arm but, after reviewing surveillance evidence,
which depicted Hicks engaging in activities that were not consistent with his
presentations during clinical examination, he certified Hicks fit for duty.
However, Hicks testified and presented documentary evidence that his actual job
requirements went beyond restrictions put in place by his physician. After Vane
ceased paying his medical bills, Hicks sought further treatment from a
physician who recommended further. arthroscopic surgery. Hicks’ new physician
was unimpressed by the video surveillance that Vane had obtained. The court
rejected Vane’s assertion that the $77,000 the jury awarded in past maintenance
was wholly unsupported by the evidence, that the weight of the evidence in the
record actually permitted the jury to conclude that Hicks was owed at least
$79,000; the jury actually awarded plaintiff $77,000. Vane also challenged the
$97,000 in "future cure" payments because Hicks had failed to present
any evidence detailing the exact cost of his desired shoulder surgery and
associated rehabilitation, and that it was error that plaintiff's counsel was
incorrect to argue in summation that the jury could look to the $97,000 cost of
Hicks’ prior surgery as a guide to estimate the cost of a future surgery. The
court disagreed, finding the costs of that past treatment were properly in
evidence and, therefore, the future cure award was not against the weight of
the evidence. The court also rejected Vane’s challenge to the future
maintenance award, noting that Hicks would require surgery and six months of
physical therapy, which supported the prospective maintenance award. Finally,
Vane challenged the court's punitive damages instruction as improperly lacking
a factual predicate in the record and the jury's award of punitives as against
the weight of the evidence. The court rejected this argument as well, noting that
it was undisputed at trial that Vane paid Hicks only $15 in maintenance per
day, which was less than one-quarter the rate that Hicks’ uncontested evidence
demonstrated would have compensated him properly. In addition, the court found
Vane’s use of a private investigator to observe Hicks’ activities on his
private property, along with its decision to take evidence gathered by that
investigator to Hicks’ doctor without notifying Hicks, was certainly willful
and could be interpreted to be done with "utter disregard" for Hicks’
health. The court was of the opinion that, by doing so, Vane interfered
directly with the doctor-patient relationship. The court also found that the
punitive damages awarded were not excessive, because the $123,000 punitive damages
were far less than the $322,000 compensatory damages award. The award of
pain and suffering damages was allowed to stand on the same evidentiary support
as the punitive damage award. Vane’s motions for judgment as a matter of law
and, in the alternative, for a new trial are were denied. The court also
awarded Hicks court costs and attorney fees totaling $112,083.77. (USDC
SDNY, April 16, 2013) 2013 U.S. Dist. LEXIS 55043
Updater Note: This is a very troubling decision in the sense that
the court chose to leave the jury’s punitive damages award in place,
predominantly because the employer chose to use surveillance to investigate the
claim and challenge the treating physician’s clinical findings. Punitive
damages are certainly not supported by the lower maintenance rate paid, as
there is no evidence that the plaintiff asked for a higher maintenance rate
until trial. Additionally, they are not supported by the failure to reinstate
maintenance, as the employer legitimately relied on a medical opinion to
terminate same. I believe the punitive damages award here is totally without
support in the law.
SEAMAN CLAIMS EVERY ACHE AND
PAIN IS RELATED TO SHIPBOARD INCIDENT
HALE V. OMEGA PROTEIN,
INC.
Derek Hale brought a Jones
Act and general maritime law action against his former employer, Omega Protein,
Inc., seeking damages for alleged personal injuries sustained while working as
a fisherman. Hale claimed he was struck on the forearm by a piece of metal pipe
during fishing operations, but sought recovery for arm, knee, shoulder, and
back ailments that he contended were somehow causally-related to the pipe
incident. Omega disputed Hale’s contention that all of the claimed injuries
were causally-related to the alleged incident aboard its vessel. Following a
bench trial the court found that Hale was injured when a piece of pipe or metal
object struck Hale on his right forearm. Hale allegedly went down on one or
both knees when the object struck him. The sole complaints recorded on the date
of the accident were pain in his arm and elbow. The x-rays taken were negative.
Hale first complained of leg pain long after his accident. Hale was eventually
released to return to regular duty but with the restriction of no net pulling
or lifting. The court found that Hale's knee problems were not causally-related
to his accident. Hale's assertions during cross examination that in the months
immediately following the accident he reported problems with his knee to
various persons, including medical professionals, all of whom then neglected to
make a record of those complaints, were not credible. Other testimony
demonstrated Hale had a history of bad knees prior to his accident and the
court credited this testimony. The court found the evidence also failed to
establish that Hale’s shoulder, neck, and back problems were causally-related
to his accident. Although Hale had not worked since the accident, the court
concluded that Hale did not establish that any permanent disability that he
suffered attributable to his accident. Nor did Hale establish that negligence
on the part of Omega or any of its employees or unseaworthiness of Omega’s
vessel play a role in the incident. The expert opinions offered by Captain
Mitchell S. Stoller to the contrary did not convince the court otherwise. The
court also held that Omega's failure to pay maintenance was not willful,
wanton, or callous, holding that Hale was not entitled to damages or attorney's
fees. (USDC EDLA, April 12, 2013) 2013 U.S. Dist. LEXIS 52986
TOWNSEND DID NOT OVERRULE MILES RESPECTING DEATH
CLAIMS
HACKENSMITH V. PORT
CITY STEAMSHIP HOLDING COMPANY, ET AL.
Ronald Hackensmith was
trapped in a piece of machinery on a boat owned and operated by Port City
Steamship Holding Company and Port City Steamship Services, Inc. (hereinafter
“Port City”); he sustained substantial injuries and ultimately passed away.
Hackensmith’s widow brought suit alleging various claims of liability,
including Jones Act negligence, unseaworthiness, loss of consortium and
associated damages for each. Port City filed a number of summary judgment
motions, requesting that the Court dismiss the widow’s claims. The parties
later stipulated to dismiss a number of the widow’s claims that were the
subject of Port City’s motions for summary judgment. That stipulation left very
limited issues open for resolution on defendants' summary judgment motion. More
specifically, the widow agreed to dismiss the following claims with prejudice:
her Jones Act claim against the Holding Company, her unseaworthiness claim
against Steamship Services, her loss of consortium claim against Steamship
Services, and any claim for future loss of wages against either defendant in
both her Jones Act negligence and unseaworthiness claims. At this juncture,
there existed only one summary judgment motion as to whether the widow could
punitive, loss of consortium, or other non-pecuniary damages under her
remaining Jones Act negligence or unseaworthiness claims. The court found that,
under the state of current law, the widow may not recover punitive, loss of
consortium, or other non-pecuniary damages under either her Jones Act or
unseaworthiness claims. Noting that while Townsend discussed the
historical availability of punitive damages in general maritime actions, it
never expressly overruled any portion of Miles that limited
punitive damage award. In the end Townsend did not address
anything other than maintenance and cure claims, leaving open the question of
whether punitive damages are available for other general maritime claims. The
court noted that Townsend expressly distinguished between
allowing punitive damages for maintenance and cure and allowing punitive
damages for wrongful death, indicating that, if nothing else, the Supreme Court
views wrongful death actions much differently than actions brought by injured
seaman because Congress has spoken directly on wrongful death claims in passing
the Jones Act. The court declined to view Miles' central
holding to have been overruled by Townsend. That is, Miles
still operates to bar punitive and other non-pecuniary damages in general
maritime wrongful death claims. For that reason, the court concluded that the
widow could not sustain her claims for punitive, loss of consortium, or other
non-pecuniary damages against Port City under her maritime action. Accordingly,
the court granted Port City’s remaining summary judgment motion on that issue.
The court also denied the widow’s motion to amend her complaint to add a
request for punitive damages under her Jones Act negligence claim. (USDC EDWI,
April 9, 2013) 2013 U.S. Dist. LEXIS 50891
A REASONABLE OBSERVER WOULD
NOT SEE PRODUCTION PLATFORM AS VESSEL
WARRIOR ENERGY SERVICES
CORP. ET AL. V. ATP TITAN
This dispute arose from fees
allegedly owed to six plaintiffs for tools and services provided to the ATP TITAN,
a floating production facility moored approximately 65 miles offshore of
Louisiana in a production field owned by ATP Oil and Gas. The plaintiffs
contended that they provided supplies and services to the ATP TITAN, the costs
of which have not been paid. The plaintiffs asserted maritime liens against the
ATP TITAN and state law privileges in the alternative against ATP Titan, in
personam, and the ATP TITAN, in rem. Plaintiffs also sought a
declaratory judgment that the ATP TITAN is a vessel and that they have valid
liens in the amount of $2,189,424.86, in addition to pre-judgment and
post-judgment interest. The defendants moved to dismiss the complaint for lack
of jurisdiction, on the grounds that the ATP TITAN is not a vessel but a
floating production platform, thus depriving the court of in rem
jurisdiction over the ATP TITAN. Plaintiffs' moved to have the court deem in
rem jurisdiction perfected or, in the alternative, to issue a warrant for
arrest and to appoint a consent guardian. The court began its analysis by
noting the characteristics of the ATP TITAN noting that, although it is
buoyant, the ATP TITAN is securely moored to the floor of the Outer Continental
Shelf by twelve moorings connected to mooring piles that are embedded over 205
feet into the sea floor and weigh over 170 tons each. The structure is also
stabilized by flowlines, umbilicals, and pipeline systems and has no means of
self-propulsion. To move the ATP TITAN to a new location would take
approximately 15-29 weeks after 12 months of preparation and cost between $70
and $80 million. The court cited the 5th Circuit’s recent Mendez
case, noting that the production platform in that case many of the same
features as the ATP TITAN. The court concluded that despite the structure's
design allowing it to shift laterally and to be moved on its moorings, the ATP
TITAN did not serve a waterborne transportation function in any practical
sense. Further, the court noted that the Supreme Court’s recent Lozman
decision did not have the effect of invalidating Fifth Circuit precedent
establishing that floating production platforms are not vessels. Rather than
casting doubt on the ATP TITAN's non-vessel status, the court observed that Lozman
and its emphasis on the impressions of a reasonable observer reinforced its
determination that the ATP TITAN is not a vessel. The court thus held that the
ATP TITAN did not qualify as a vessel. Accordingly, plaintiffs had not met
their burden in demonstrating that the court may exercise in rem
admiralty jurisdiction over the ATP TITAN. The court granted defendants' motion
to dismiss both defendants. Because the court could not exercise in rem
jurisdiction over the ATP TITAN, plaintiffs' motions to deem in rem
jurisdiction perfected and to issue an arrest warrant were denied as moot.
(USDC EDLA, April 22, 2013) 2013 U.S. Dist. LEXIS 57269
NO UNSEAWORTHINESS REMEDY FOR
SEAMAN ON THIRD PARTY BARGE
WALTERS V. DANN MARINE
TOWING, LLC., ET AL.
John Walters allegedly
suffered a slip-and-fall injury on a barge while employed as an able-bodied
seaman by Dann Marine, LLC. Walters alleged that Constellation Power
Source, Inc. owned and/or operated the barge he was injured on. Per his duties
as an able-bodied seaman, Walters boarded the barge to assist with the lines
between the tug and the barge. While aboard the barge, Walters allegedly
slipped on pellets of coal that had been spilled on the deck, lost his balance
and suffered an alleged injury to his neck. Walter eventually underwent surgery
for two herniated disks. Dann Marine and Constellation moved to dismiss Counts
II (unseaworthiness against Dann Marine) and V (unseaworthiness against
Consellation) of Walters' complaint, pursuant to FRCP 12(b)(6), for failure to
state a claim for unseaworthiness against either defendant. Walters argued that
Constellation had a duty to sweep and clean the deck as a matter of practice
and/or contract, which it failed to execute. Such failure resulted in an
unseaworthy condition, as the presence of coal on the deck of the barge created
the potential for harm to Walters and similarly situated crewmembers.
Constellation argued that Walters was not a seaman as to its barge and,
therefore, Constellation did not owe Walters a duty of seaworthiness. The court
noted that Walters failed to allege ownership or constructive ownership by Dann
Marine in his claim for unseaworthiness. As a result, the court granted Dann
Marine's Motion to Dismiss Count II because Dann Marine was not the actual or
constructive owner of the barge and therefore owed Walters no duty of
seaworthiness as to the barge. Applying the principle in Babbitt,
the court also concluded that Walters was not employed by Constellation, and
therefore Constellation did not owe him a duty of seaworthiness. Moreover, the
court found no compelling reason to treat him as a seaman on the barge under Sieracki.
Accordingly, the court found that Walters failed to allege seaman status as to
the barge, and therefore, Constellation did not owe him a duty of
seaworthiness. The court granted Constellation's Motion to Dismiss Count V.
(USDC DMD, April 10, 2013) 2013 U.S. Dist. LEXIS 51412
SHIPOWNER HAS A DUTY TO
PROVIDE PROPER MEDICAL TREATMENT
BROWN, ET AL. V. DG
MARINE TRANSPORTATION LLC, ET AL.
Jason Brown worked as a
deckhand aboard a vessel, which was owned at the time by DG Marine
Transportation LLC, who is now doing business as Genesis Marine, LLC. Brown
claimed that he fell when stepping down from the vessel to a barge. Genesis
Marine sent Brown to a physician for treatment of his injuries. One of the treating
physicians prescribed epidural steroid injections to relieve Brown's pain.
Brown died "a short time" after being sent home. According to the
autopsy, the cause of death was "saddle embolus with pulmonary
thromboemboli due to deep venous thrombosis of the left lower leg associated
with decreased mobilization related to back injury." Plaintiffs, Brown's
wife and his estate, brought this suit under the Jones Act and general maritime
law, alleging that Brown died as a direct and proximate cause of injuries he
sustained aboard the vessel and/or the treatment Brown received from Genesis’s
choice of physician. Genesis Marine filed a Rule 12 motion to dismiss, arguing
that two provisions of Texas medical malpractice law require dismissal of the
claims related to Brown's medical treatment. The trial court rejected Genesis’s
attempt to apply Texas medical malpractice law to the Jones Act claim, alleging
that the shipowner is liable for the negligent medical treatment of its injured
seamen. because the Texas medical malpractice statutes apply only to lawsuits
against "a health care provider or physician," Tex. Civ. Prac. &
Rem. Code Ann. § 74.001(13). A more broadly defined state law could not trump a
long-established federal cause of action, so state law did not provide a
defense. The court concluded that plaintiffs had asserted legally viable Jones
Act claims that state medical malpractice law does not govern. Whether any
evidence existed to support those claims was a question to be answered later.
Accordingly, Genesis’s motion to dismiss was denied. (USDC SDTX, April 5, 2013)
2013 U.S. Dist. LEXIS 49479
REMOVAL OF FRAUDULENTLY PLED
JONES ACT CLAIM WAS PROPER
DUET V. AMERICAN
COMMERCIAL LINES LLC, ET AL.
Jade Duet was allegedly
injured while working aboard a vessel owned by American Commercial Lines, LLC
(ACL), when he allegedly fell into an open manhole. ACL Transportation
Services, LLC (ACLTS) owned and operated the barge repair facility where the
injury occurred. ACLTS contracted with St. James Marine, Inc. to provide
workers to clean ACL's barges and repairmen to service ACLTS' mechanical
equipment and ACL's barges. Pursuant to this contract, St. James assigned Duet
to work as a mechanic under ACLTS supervision. Duet slept at home and drove to
and from the ACLTS facility each day. He was not permanently assigned to a
vessel. Rather, he performed mechanical and welding work on both the fleet
boats and ACL barges. The majority of Duet's work occurred while the vessels
were moored to the floating dock. Duet filed suit in state court under the
Savings to Suitors Clause, claiming to be a Jones Act seaman. ACL and ACLTS
removed the matter to federal court, invoking the court's diversity
jurisdiction and alleging improper joinder of St. James. Duet moved to remand the
case to state court, which the defendants opposed. After hearing oral argument,
the court denied Duet’s Motion to Remand, finding that Duet was not a Jones Act
seaman and therefore his Jones Act claim against St. James was fraudulently
pleaded. Accordingly, removal was proper. While Duet spent more than thirty
percent of his time in service of vessels in navigation, the court held this
alone was not dispositive as to whether Duet’s connection to the vessel
fleet. Based on the record before it, the court concluded that a reasonable
jury could not find that Duet was exposed to the perils of the sea on a regular
basis. (USDC EDLA, April 16, 2013) 2013 U.S. Dist. LEXIS 54937
EVIDENCE OFFERED FAILS TO
MEET SUMMARY JUDGMENT STANDARD
CUTCHALL V. CAL DIVE
INTERNATIONAL, INC.
Emmett Cutchall, Jr.
allegedly suffered a minor injury while employed as a seaman by Cal Dive
International, Inc. While he was out on maintenance and cure, Cutchall was
diagnosed with lung cancer. Cal Dive moved for partial summary judgment on
Cutchall’s wage loss cause of action. Although Cal Dive did not contend that
Cutchall did not suffer any disability as a result of his injury while working
as a Jones Act seaman, it did contend that Cutchall became unemployable for a
different, non-employment related reason — lung cancer — just a few short
months after the injury. Based upon deposition testimony of Cutchall’s treating
oncologist stating that he didn’t think Cutchall would work again due to lung
cancer, Cal Dive sought to dismiss Cutchall’s claim for past lost wages from
the start of his treatment with the oncologist to the date of trial and all
future lost wages. The court denied Cal Dive’s motion, noting that the burden
of proof is upon the defendant to prove the extent of the damages that the
preexisting condition would inevitably have caused. Based upon the evidence
offered, the court held that Cal Dive had failed to carry its burden of
establishing that no genuine dispute existed, such that Cal Dive would be
entitled to judgment as a matter of law on the issue. Cal Dive’s motion for
partial summary judgment was denied. (USDC EDLA, April 2, 2013) 2013 U.S. Dist.
LEXIS 47593
SEAMAN GETS DE MINIMIS DAMAGES
FOR ALLEGED TOTAL DISABILITY (CONT.)
BARRY V. UNITED STATES
OF AMERICA
Stephen Barry allegedly
sustained a left leg injury during a mooring operation aboard a ship owned by
the United States and operated by American Overseas Marine Corporation (AMSEA).
Barry brought suit under the Suits in Admiralty Act, the Public Vessels Act,
the Jones Act, and general maritime law, stating claims for negligence,
unseaworthiness, and maintenance and cure. Following a bench trial the court
found that the incident caused Barry to incur nothing more than a contusion and
hematoma on his left thigh down to his foot, which healed in eight weeks, with
a permanent discoloration and diminution of sensation on a portion of his left
leg. The court found AMSEA liable for Barry’s injury under the Jones Act claim,
because AMSEA breached its duty to provide Barry with a safe working
environment. The court also found that AMSEA failed to demonstrate that Barry
acted unreasonably for a seaman during the mooring operation and was not
subject to contributory fault or the primary duty rule for his Jones Act claim.
The court also found that Barry prevailed on his unseaworthiness claim. The
court found AMSEA liable to Barry for any unpaid maintenance and cure resulting
from his injury aboard the vessel, from the date of the incident until Barry’s
injury healed eight weeks later. The court awarded $30,000 for pain and
suffering, distress, discomfort, loss of sensation, and permanent discoloration
of his left leg and $3,993 for eight weeks of lost wages [see February 2013 Longshore Update]. Barry
filed a Motion to Alter or Amend the Judgment, arguing that his lost wages were
improperly calculated by the court. AMSEA filed an opposition. After hearing
oral argument, the court amended its prior findings of fact, holding the most
credible calculation of Barry’s average pre-injury annual salary was $73,565.
The court further amended its award to increase the lost wages award to
$8775.74 for Barry’s eight weeks of lost wages. (USDC NDCA, April 1, 2013) 2013
U.S. Dist. LEXIS 48915
THERE CAN’T BE TWO JONES ACT
EMPLOYERS, BUT . . .
HILL V. MAJESTIC BLUE
FISHERIES, LLC, ET AL.
Captain David Hill executed a
contract with Majestic Blue Fisheries, LLC to act as captain of its fishing
vessel. Majestic was the record owner of the vessel. Majestic was formed by
Dongwon Industries Co., Ltd. , a foreign corporation incorporated under the
laws of Korea. Aside from Captain Hill, his relief captain, and the other
crewmembers of the vessel, Majestic only had one employee, who reported
directly to and took orders from Dongwon. The vessel departed Guam to begin a
tuna fishing expedition, but sank in the West Pacific Ocean after it began
taking on water in calm seas and good weather. Twenty-two of the twenty-four
crewmembers onboard had abandoned ship and were later rescued. After two days
of search and rescue by the United States Coast Guard, the two remaining
crewmembers, Captain Hill and the vessel's chief engineer, were not found.
Hill’s widow filed her complaint against Dongwon and Majestic, alleging claims
against both defendants for pre-death pain and suffering under the Jones Act,
wrongful death under general maritime law, wrongful death under DOHSA and
negligence causing wrongful death under the Jones Act. Dongwon moved to dismiss
pursuant to FRCP 12(b)(6) for failure to state a claim, which the widow
opposed. Dongwon argued that only one employer may be sued under the Jones Act,
and since the widow had sued both Dongwon and Majestic, asserting that both
were decedent's Jones Act employers, and had failed to plead in the
alternative, the Jones Act claims against Dongwon must be dismissed. The court
found it would be premature to dismiss Dongwon, because no determination had
been made with respect to which entity was the decedent’s Jones Act employer.
The allegations showed that Dongwon exercised operational control over the
vessel and its crew, that it paid the wages of the crew, and played a role in
hiring and retaining crewmembers for the vessel. Taking the allegations of the
complaint as true and looking at the venture as a whole, the court held that it
could reasonably infer that an employer-employee relationship existed between
Captain Hill and Dongwon. The court also found it premature to determine
defendants' liability under DOHSA or the Jones Act, and second, what impact
that determination may have on the general maritime law claim and recoverable
damages. Dongwon’s motion to dismiss was denied in all respects. (USDC DGU,
April 12, 2013) 2013 U.S. Dist. LEXIS 53374
COURT ALLOWS DNA TESTING OF
MINOR IN WRONGFUL DEATH CASE
HOWELL V. HILLCORP
ENERGY COMPANY, ET AL.
This Is a maritime personal
injury and wrongful death action arising in connection with accident on an
offshore drilling platform, which resulted in the death of Philip Kliebert. Amy
Howell, as natural tutrix of the minor children Cameron Kliebert and Abigail
Kliebert, brought suit alleging that defendants failed to properly manage,
operate, and supervise the site, which led to Kliebert’s death. Howell, who was
briefly married to the decedent brought suit on behalf Kliebert’s alleged two
minor children for wrongful death and survivorship. Defendants sought an order
from the court compelling Abigail, a seven year-old girl, to undergo a medical
examination to determine her biological relationship to the decedent.
Defendants argued that, during the discovery phase of this case, the biological
relationship between the decedent and the two minor children came into
question. Howell married the decedent on March 18, 2006. During the course of
their relationship, at times before and during the marriage, three children
were born: Cameron (2003), Abigail (2005), and Nicolas (2009). Howell filed for
a "no fault" divorce, and Kliebert filed a countersuit against Howell
for a divorce on account of adultery. He explicitly requested a paternity test
on the youngest child, Nicolas, due to Howell's "extramarital
affairs." As a result of the paternity test, Howell and Kliebert entered
into a consent judgment wherein Howell agreed that Nicolas was not his child. A
paternity test was performed on Cameron, which confirmed that Kliebert was his
father. However, no paternity test was ever requested for Abigail. Howell
argued at her deposition that her alleged adulterous conduct occurred only for
a six-month period in 2009 during which she and Kliebert were separated,
however, Kliebert’s divorce filing indicated that the adulterous conduct
reached back to 2007. Defendants also argued that Kliebert’s mother testified
at her deposition that Howell's infidelity was ongoing during the entirety of
her relationship with Kliebert. After that deposition, defendants contacted
Howell to attempt to schedule paternity tests for Cameron and Abigail, which
Howell refused. In support of their motion, defendants argued that Abigail's
standing to seek recovery on either of her causes of action hinges on her
falling within the "class of persons" under the Louisiana wrongful
death statutes, which includes "children." Defendants also argued
that because Abigail was born prior to the marriage, the decedent could not be
presumed to be her father. In opposition, Howell argued that the decedent was
"presumed" to be Abigail's father pursuant to Civil Code Ann. arts.
195 and 196, and as such her "biological relationship" was not in
controversy. The court noted that although Howell had produced a copy of the
birth certificate with Kliebert's name on it, Kliebert had not signed the birth
certificate. Therefore, the fact that his name appeared on the birth certificate
did not satisfy Article 195. Moreover, there was no indication that Kliebert
undertook an "authentic act" to acknowledge the child as his own. The
court also found Article 196 unavailing, as it provides that "a man may,
by authentic act or by signing the birth certificate, acknowledge a child not
filiated to another man. The acknowledgment creates a presumption that the man
who acknowledges the child is the father." The court concluded that the
issue of paternity was still an issue of fact, and defendants were entitled to
collect evidence in support of their contention that the decedent was not
"biologically related" to Abigail. The "swab" test they
proposed to conduct The court also found that, based on the Rule 35(a)
standards, evidence of paternity was plainly relevant to Howell's wrongful
death and survivorship actions. Howell was ordered to make Abigail available
for DNA swab testing no later than fourteen days of the court’s order. (USDC
EDLA, April 9, 2013) 2013 U.S. Dist. LEXIS 50864
FLORIDA COURTS CONTINUE TO
COMPEL ARBITRATION
PAUCAR V. MSC CROCIERE
S.A, ET AL.
Javier Paucer brought a
lawsuit in state court for injuries he allegedly sustained while working as a
crewmember aboard a cruise vessel allegedly owned and operated by MSC Crociere,
S.A. Paucer asserted causes of action for Jones Act negligence,
unseaworthiness, failure to provide maintenance and cure, failure to treat, and
wages and penalties. MSC Crociere removed the case to federal court under 9
U.S.C. § 203, seeking to enforce the arbitration provisions of Paucer’s
employment agreement, which required that the arbitration would be held in
Panama City, Panama and further states that Panamanian law shall govern. Based
on the arbitration clause, MSC Crociere moved to compel arbitration. Paucer
opposed the motion, arguing that arbitration should not be compelled for three
reasons. Paucer maintained that MSC Crociere had a system in place that
prevented him from reviewing the terms of the employment agreement before he
signed it, making the agreement invalid. Paucer also made two public policy
arguments to avoid arbitration based on the choice of law provision, arguing
that Panamanian law did not provide him the same rights and remedies as he
would receive under United States law and amounted to an unenforceable waiver
of his statutory rights under the Jones Act. Although Paucer contended that he
was not able to review the terms of the employment agreement, and was under
pressure when he signed it, the court noted that his argument is more properly
analyzed as an affirmative defense to enforcement of the arbitration provision.
In order to satisfy the prerequisite of an agreement to arbitrate, all that is
required is a valid signature on the agreement. There is no dispute over the
fact that Paucer signed the agreement that incorporated the arbitration
provision contained in the employment agreement. When Paucer’s argument was
considered as an affirmative defense, it was apparent that his reliance on the
Seamen's Articles was misplaced. The only defenses to enforcement of the
arbitration clause were those available under the Convention's null and void
provision, which is limited to standard breach of contract defenses of fraud,
mistake, duress, or waiver. Paucer’s claim that he was faced with the choice of
either signing the agreement or not signing it and not being allowed to
work, did not implicate any of these standard breach of contract defenses
and the court held that Paucer was not able to avoid enforcement of the
agreement to arbitrate on these grounds. The court also rejected Paucer’s two
public policy arguments, noting that its analysis must be guided by Bautista
and Lindo, which provide that the only defenses to enforcement of
an agreement to arbitrate under the Convention are fraud, mistake, duress, and
waiver. Paucer’s public policy arguments did not implicate any of these
standard breach of contract defenses and could not preclude enforcement of the
arbitration clause. The court rejected Paucer’s urging to follow Thomas,
holding instead, that to the extent that Lindo conflicted with Thomas,
the court was bound to follow Lindo. MSC Crociere’s motion to
compel arbitration was granted. (USDC SDFL, April 3, 2013) 2013 U.S. Dist.
LEXIS 48312
I WANT FULL DISCLOSURE PRIOR
TO TRIAL
THOMAS V. ROCKIN D
MARINE SERVICES, LLC
James Thomas filed his
personal injury lawsuit against Rockin D Marine Services, LLC, pursuant to the
Jones Act, alleging that he sustained injuries to his spine and extremities
when the overboard ladder broke free and fell on top of him, while working as a
deckhand and relief engineer on a Rockin D vessel. When a discovery dispute
arose in the case, Rockin D sought an order from the court compelling Thomas to
supplement his interrogatories and requests for production of documents. Thomas
opposed the motion. Rockin D argued that, although Thomas had supplemented his
disclosures as to the fact witnesses, virtually all of these witnesses'
testimony was improperly summarized as "anticipated testimony unknown at
this time." Rockin D argued that such blanket statements, which covered
even crucial fact witnesses such as Thomas and his wife, were made in bad faith
since trial was approximately sixty days away. Thomas argued that the case was
still evolving, as more material evidence was being produced at depositions in
the case. The court ordered Thomas to supplement his witness list, to include
adequate summaries for all witnesses, within ten days of the issuance of its
order. Rockin D also argued that Thomas had failed to provide copies of all of
the exhibits which he intended to use at the trial and that there had been no
supplementation of medical records. The court ordered Thomas to supplement his
responses to include complete and relevant medical records within ten days of
the issuance of its order. no later than ten days as of the issuance of this
Order. The Court otherwise denies this particular discovery request as moot.
(USDC EDLA, April 2, 2013) 2013 U.S. Dist. LEXIS 48223
I’M A REASONABLE OBSERVER -
THEY DON’T LOOK LIKE VESSELS TO ME
SEA VILLAGE MARINA,
LLC. V. A 1980 CARLCRAFT HOUSEBOAT, ET AL.
The case involved an in
rem action filed by Sea Village Marina to obtain maritime liens
against four houseboats whose owners had allegedly not paid dockage fees since
2007. After conducting several hearings on the question of subject matter
jurisdiction, the court issued an opinion and order establishing that it had
admiralty jurisdiction over the dispute under 28 U.S.C. § 1333 because the
houseboats were vessels. While the case was still pending, the United States
Supreme Court decided Lozman v. Riviera Beach, 133 S. Ct. 735,
and held that Lozman's floating home was not a vessel. After Lozman, the Court,
on its own motion pursuant to FRCP 12(h)(2), issued a show cause order asking
the parties to submit briefing regarding whether the court had subject matter
jurisdiction in light of Lozman. Instead of submitting
briefing regarding subject matter jurisdiction, Sea Village Marina filed a
letter asking the court to dismiss the case pursuant to FRCP 41(a)(2) without
prejudice because it had filed for bankruptcy and did not wish to proceed with
the action. Although the houseboat owners wanted the court to retain
jurisdiction, in order to assert claims for their own damages, the court
determined that it lacked subject matter jurisdiction, because the Lozman
case established that floating homes which do not transport passengers or
cargo, such as the residences in this action, were not subject to federal
admiralty jurisdiction. The action was dismissed without prejudice. (USDC DNJ,
April 11, 2013) 2013 U.S. Dist. LEXIS 52165
Quotes of the Month . .
. “The hardest thing in life
is to learn which bridge to cross and which to burn.” --Laurence J. Peter
“Orators are most vehement
when they have the weakest cause, as men get on horseback when they cannot
walk.” -- Cicero
“A person who has a cat by
the tail knows a lot more about cats than a person who has read about cats.”
-- Mark Twain
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
If the links above do not
take you directly to the case, try cutting and pasting the link into the URL
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cases where a charge is imposed by the court for access.
Please note that these
opinions and statements are my own. They do not represent the position of my
employer or any other organization to which I belong. These opinions may not
even represent my own opinion at a later time or place. Under no circumstances
should these opinions and statements be considered legal advice. If you want
legal advice, please consult an attorney.
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