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
Corporate Risk Manager
Weeks Marine, Inc.
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