October 2011
Notes From Your Updater - On September 27, 2011, the U.S. Supreme Court granted the petition for certiorari in the case of Roberts v. Sea-Land Services (Docket No. 10-1399) [see December 2010 Longshore Update]. The question presented is limited to: Whether the phrase “those newly awarded compensation during such period” in Longshore Act §6(c), applicable to all classes of disability except permanent total, can be read to mean “those first entitled to compensation during such period,” regardless of when it is awarded.
On August 24, 2011, the California Supreme Court declined to review a controversial lower court ruling that gives doctors leeway in determining workers' compensation disability ratings. The ruling involved the case of State Compensation Insurance Fund v. Workers' Compensation Appeals Board [Almaraz]. Almaraz filed for workers' compensation and was assigned a 12 percent disability rating using the AMA Guides to the Evaluation of Permanent Impairment. Almaraz appealed to the Workers' Compensation Appeals Board, arguing that doctors should have latitude in rating disabilities. The board sided with Almaraz and ruled that doctors could depart from the schedules in the AMA Guides as long as they stayed within the "four corners" of the Guides. The board's ruling was affirmed by the state's 5th Circuit Court of Appeals. The State Compensation Insurance Fund appealed the board's ruling, but the Supreme Court's decision not to review the case means the ruling allowing physician discretion will stand.
It’s official. Yes, folks, just what you have all been waiting for - notwithstanding the current state of our economy the National Average Weekly Wages (NAWW), Minimum and Maximum Compensation Rates, and Annual October Increases (Section 10(f)), effective October 1, 2011, are out. The new rates reflect a 3.05% increase in the NAWW, increasing the maximum compensation rate to $1,295.20.
The US Coast Guard and the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) have released the final reports of the Joint Investigation Team (JIT) on the April 20, 2010 Deepwater Horizon explosion and fire, with loss of life and a resulting oil spill. The two agencies released a Joint Cover Letter. The US Coast Guard re-posted Volume I of the JIT report, originally released on April 22, 2011, addressing only issues within the purview of the Coast Guard. This is now accompanied by the Commandant’s Final Action and an Enclosure responding to comments received on the initial release. The BOEMRE posted Volume II of the JIT report, addressing issues within the purview of the Bureau. This is accompanied by various Appendices.
On October 21, 2011, the Admiralty Committee of the Federal Bar Association of the Western District of Washington and the Washington State Bar Association, will present a seminar on Current Issues on Maritime Law. Need CLE credits, but don’t want to travel to the left coast? The Washington State Bar Association has perfected the process for attendance online via webcast, which provides a travel-free opportunity not only to see and hear the presentations but to ask live questions of the speakers and other webcast attendees. Washington and some other states recognize "live" CLE credits for attending by webcast. The seminar is approved for 6.75 CLE (0.75 ethics) credits in Washington.
On September 21, 2011, the 9th Circuit Court of Appeals filed an amended opinion in the case of Lopez v. Pacific Maritime Association [see April 2011 Longshore Update], replacing the opinion filed on March 2, 2011. With these amendments, Judges Ripple and Graber voted to deny the petition for panel rehearing, and Judge Pregerson has voted to grant it. Judge Graber voted to deny the petition for rehearing en banc, and Judge Ripple has so recommended. Judge Pregerson has voted to grant it. The full court was advised of the petition for rehearing en banc, and the petition for panel rehearing and petition for rehearing en banc were. The outcome remained the same and the drug test one strike rule for longshoremen was upheld. (9th Cir, September 21, 2011) 2011 U.S. App. LEXIS 19620
TRUE DOUBT RULE IS GONE. LHWCA CLAIMANT BEARS BURDEN OF PROOF
CERES MARINE TERMINALS, INC. V. GREEN, ET AL.
Circuit Court Opinion
BRB Decision
ALJ Decision
Robert Green worked as a longshoreman for 23 years, underwent audiometric testing, which revealed a 3.75 percent binaural hearing loss. Since the results of the hearing evaluation were consistent with noise exposure and noise-induced hearing loss, Green filed a claim under the LHWCA against Ceres Marine Terminals, Inc. Green later underwent audiometric testing, on behalf of the employer, which revealed a zero percent hearing impairment. In his decision, following a hearing on the issues, the ALJ found that neither audiogram was presumptive evidence of the degree of Green’s hearing loss because there was no evidence that Green was provided with a copy of either audiogram and accompanying report within 30 days of the date of the examination. The ALJ found both examinations to be credible and equally probative. He then averaged the examination results and ruled that claimant was entitled to LHWCA benefits, albeit at a reduced level. The ALJ found that Green suffered a hearing loss of 1.875 percent. The ALJ also found that Green was entitled to hearing aids for his work-related hearing impairment. As the ALJ found that both audiologists agreed that the hearing aids would benefit Green, he awarded the cost of these hearing aids, $2,500, plus an additional 20 percent, totaling $3,000, pursuant to the fee schedule used by the South Carolina Workers’ Compensation Commission. Ceres appealed the ALJ’s decision, but the BRB affirmed in all respects except for reducing the hearing aid award to $2,500. On further appeal, Ceres contended that the ALJ failed to adhere to the burden of proof as established by Greenwich Collieries, which eliminated the “true doubt” rule. It was difficult for the appellate court to find that substantial evidence supported the ALJ's conclusion that the audiograms were equally probative. However, even if the court accepted that the evidence refuting and confirming hearing loss was in equipoise, the appellate court held the Green failed to meet his burden of proof to establish disability because in Greenwich Collieries the Supreme Court previously held that when the evidence was evenly balanced, the benefits claimant had to lose. The appellate court held that the BRB committed a clear error of law when it affirmed the ALJ's decision and order, relying on its own precedent rather than the controlling law set forth by the Supreme Court. Once the unchallenged finding was made by the ALJ that the evidence was equally probative, Green failed to meet his burden of proof as a matter of law and his claim for binaural hearing loss benefits should have been denied. The decision was reversed. The award was vacated. The case was remanded to the ALJ only as to the limited issue of the award of attorney's fees. (4th Cir, September 6, 2011) 2011 U.S. App. LEXIS 18489
KNEW SHE WAS SHOT, BUT DIDN’T KNOW SHE WAS CRAZY
DYNCORP INTERNATIONAL, ET AL V. DIRECTOR, OWCP, ET AL. [MECHLER]
Circuit Court Opinion
BRB Decision
ALJ Decision
Dyncorp International, which operated various overseas prisons on behalf of the United States government, assigned Elizabeth Mechler to the Mitrovica Detention Center in Kosovo, where, on April 17, 2004—her first day on the job—she and five other Dyncorp employees were shot by a Jordanian soldier working for the United Nations. Mechler was wounded in her left leg and pelvis, but, after treatment at a military hospital, returned to work on crutches two days after the attack. Because of her physical injuries Dyncorp assigned Mechler to light duty, where she remained until January 2005. It was not until April 16, 2006, that Mechler filed a claim for workers compensation under the LHWCA, as extended by the Defense Base Act. Applying the Act’s one year statute of limitations, the ALJ found that Mechler’s claim was time barred because she should have been aware that her injuries would likely result in an impairment of her earning capacity at the time of her evaluation of October 2004. The ALJ also noted that the examining physician had diagnosed Mechler with mental impairments following his evaluation in October, 2004, and that Mechler had sought treatment for a multitude of psychological symptoms thereafter. Mechler appealed and the Benefits Review Board reversed and remanded, instructing the ALJ to apply a statutory presumption in favor of timeliness. The Board reviewed the record and concluded that there was not substantial evidence to support the ALJ’s finding that by October 2004 Mechler was constructively aware of the connection between her psychological injury and her future earning capacity. The Board was particularly concerned by what it perceived as the ALJ’s reliance on evidence related to Mechler’s temporary physical impairment immediately following the shooting. On remand, the ALJ awarded Mechler disability benefits based on her psychological impairment. Dyncorp and its insurance carrier appealed, asserting that they met their burden of production showing Mechler’s claim was untimely and that the ALJ’s initial finding of untimeliness was supported by substantial evidence. They characterized the Board’s review, not as one for substantial evidence, but rather as an exercise in unauthorized fact-finding. Reviewing the record as a whole, the appellate court found that the evidence in the case was not of the quantity or character that would allow a reasonable mind to conclude that Mechler had enough information—either from Dyncorp, her healthcare providers, or other sources—to realize more than one year before she filed her claims that her psychological problems would result in a permanent loss in earning capacity. The appellate court’s independent review of the administrative record led it to conclude that there was almost no evidence that Mechler, herself, believed she was permanently impaired more than one year before filing her claim and the ALJ’s initial finding was not supported by substantial evidence, and therefore, in reversing this finding, the Board did not exceed its statutory standard of review. Accordingly, the order of the Board reversing the ALJ’s dismissal of Mechler’s claims was affirmed. (2nd Cir, September 2, 2011) 2011 U.S. App. LEXIS 18325
ALJ’S FAILURE TO USE AMA GUIDES RULED HARMLESS ERROR
STAUBLEY V. ELECTRIC BOAT CORPORATION, ET AL.
Circuit Court Opinion
BRB Decision
ALJ Decision
Clyde Staubley was allegedly exposed to asbestos while working for Electric Boat Corporation as an electrician. Staubley was eventually diagnosed as having pleural plaques consistent with asbestos exposure. Staubley’s physician also opined that he had a 20 percent lung impairment under the AMA Guides to the Evaluation of Permanent Impairment. Staubley filed a claim for benefits under the LHWCA for a work-related lung impairment. In her decision, the ALJ found that Staubley’s work-related asbestos exposure contributed to a mildly reduced lung diffusion capacity and restrictive lung disease. The administrative law judge averaged the ratings provided by the employer’s physician and Staubley’s physician to find that Staubley had a 10 percent permanent lung impairment. The ALJ found that Staubley’s lung impairment reached maximum medical improvement in January 2008 and, accordingly, awarded Staubley compensation for a 10 percent permanent impairment commencing January 31, 2008. Staubley appealed, challenging the ALJ’s finding that he has a 10 percent lung impairment and the commencement of benefits on January 31, 2008. Staubley contended that he was entitled to an award for a five percent lung impairment from the date he retired on March 26, 1996 to January 30, 2001, and to an award for a 20 percent lung impairment as of January 30, 2001, when he was first examined and tested. The Benefits Review Board rejected Staubley’s arguments and affirmed the ALJ’s award of benefits. Although the BRB found that the ALJ most likely erred by not taking judicial notice of the Guides, it held that the error was harmless. On further appeal Staubley argued that the ALJ erred by not taking judicial notice of the AMA Guides in evaluating his claim for benefits and by finding that his impairment became permanent in January 2008 rather than at the time of his retirement. The appellate court agreed with the Board that the ALJ most likely erred by not taking judicial notice of the Guides, because the LHWCA requires that a claimant's permanent impairment be determined under the Guides. Nevertheless, the court also agreed with the Board that under the circumstances of the case, the ALJ's error was harmless. Because pleural plaques are not evidence of impairment and because one rating relied solely on those plaques to support a finding of a five-percent defect, the ALJ's decision not to credit that medical opinion was supported by substantial evidence, regardless of the ALJ’s failure to take judicial notice of the Guides. Additionally, the ALJ specifically limited her findings to pulmonary function test results which used the same predicted value standard in all tests. Finally, the appellate court held that the ALJ’s finding of maximum medical improvement in January 2008 was supported by substantial evidence. Staubley’s petition for review was denied. (2nd Cir, September 1, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 18427
HE’S AN OKLAHOMA JUDGE. WHAT DOES HE KNOW ABOUT MARITIME LAW
POORE V. CONAGRA FOODS, INC.
Austin Poore was employed by Lloyd Richards Temps (LRT), and was assigned through LRT to work for ConAgra Foods, Inc. as part of a clean-up crew on ConAgra's vessel. During his tour of duty, Poore allegedly fell twenty feet from a ladder, which was part of ConAgra's vessel, and sustained injuries. Poore filed suit under §905(b) of the LHWCA, claiming his resultant injuries were a direct result of ConAgra's negligent maintenance and/or supervision of their vessel. Poore's alleged injury occurred on January 21, 2008 and his original Complaint was filed on January 20, 2011, one day shy of the three-year anniversary. ConAgra moved to dismiss Poore’s Complaint, arguing that federal subject matter jurisdiction did not exist, because the LHWCA did not apply to the facts of the case, and even if the LHWCA did apply to the facts of the case, the case would be barred by the statute of limitations. The court found that, although Poore's claim satisfied the "situs" factor test, because his injury occurred on navigable waters, the connection to admiralty ended there. The court found the Poore failed to present any evidence nor argue any connection to "maritime commerce." If there was a connection between cleaning a vessel and maritime commerce, such connection was minimal and insufficient to sway the factors in favor of admiralty jurisdiction. Additionally, there was no evidence that Poore's action of cleaning or the objects involved in the injury (a ladder and a platform) were unique to a maritime setting. Thus, the "nexus" factor of the Executive Jet test for admiralty jurisdiction was not satisfied. The court held that the case did not fall under admiralty jurisdiction, therefore the LHWCA did not apply and federal question jurisdiction also did not exist. As the LHWCA was not applicable to the case, Poore's cause of action was held to be a negligence action arising under Oklahoma state law. Although the court had federal subject matter jurisdiction over the claim pursuant diversity jurisdiction, Oklahoma's two-year statute of limitations for torts applied to bar the case. Accordingly, ConAgra’s motion to dismiss was granted and Poore’s case was dismissed with prejudice. (USDC NDOK, September 12, 2011) 2011 U.S. Dist. LEXIS 102650
Updater Note: Let’s just say this judge is definitely LHWCA-challenged. The intent of the 1972 amendments to the LHWCA was to add additional workers to coverage, not to exclude from coverage any employee who is injured in employment on actual navigable waters and who therefore would have been covered under the original act. Executive Jet was a case involving an aircraft going down on navigable waters and whether that was sufficient to confer federal admiralty jurisdiction over aviation tort claims.
SELF-SERVING AFFIDAVIT INSUFFICIENT FOR §905(B) NEGLIGENCE
JONES, ET AL. V. COASTAL CARGO COMPANY, INC., ET AL.
Toney Lee Jones alleged that he was injured when he fell from a rope ladder leading from a vessel, owned and operated by Icon Fantastic and Geden Lines, to a barge situated next to the vessel. At the time, Jones was working for Coastal Cargo Company, Inc., a stevedoring company, discharging steel products from the vessel to the shore and to two barges, which were moored riverside of the vessel. The Coastal Cargo stevedores brought with them two rope Jacob's ladders and rigged them to the port side of the vessel. Jones claimed that while going down the ship-side Jacobs ladder, the ladder came loose and he fell to the deck of the barge. After investigating the scene, the ship Jacob ladder was found to be fully secured to the handrail of the vessel and hanging in full length. Notably, the day before Jones’ alleged accident occurred, a U.S. Coast Guard Port State Control inspection team boarded the vessel being discharged and did not find any deficiencies. Jones filed a complaint under §905(b) of the LHWCA, claiming a member of the crew of the vessel had allegedly loosened a tie on the Jacob’s ladder, causing his fall and resulting injuries. The shipowner moved for summary judgment, arguing that the vessel and her crew did not have anything to do with the alleged incident and that Jones cannot carry his summary judgment burden to show otherwise. The court initially rejected Jones contention that the shipowner owed a duty to him to furnish a seaworthy vessel, noting that the duty to furnish a seaworthy vessel is not owed to longshore workers like Jones. As to Jones’ remaining arguments, which focused on his contention that the shipowner was negligent, the court found that Jones had failed to provide any evidentiary support therefore, aside from his own self-serving affidavit, which merely restated the same conclusory statements made in his Complaint. In sum, the court found that Jones had failed to introduce any evidence to support a conclusion that the ladder from which Jones allegedly fell was defective or improperly fastened to the vessel, or that the ladder belonged to the ship. Due to a lack of any evidence indicating that the most plausible cause of Jones's injuries was any defect in the ship's equipment, or actions of the ship's crew, the court granted the shipowner’s motion for summary judgment and dismissed Jones’ claim with prejudice. (USDC EDLA, September 1, 2011) 2011 U.S. Dist. LEXIS 98749
WAIVER OF SUBROGATION IS HELD TO BE ENFORCEABLE
RAYNES, ET AL. V. MCMORAN EXPLORATION COMPANY, ET AL.
Jamie Raynes was working on a platform, owned by McMoRan Exploration Company, when he was allegedly injured after his foot pierced a defective portion of the platform deck. Grasso Production Management, Inc. employed Raynes as its lead operator in charge of the platform. Raynes filed suit, pursuant to the Outer Continental Shelf Lands Act (OCSLA) against multiple parties. At all relevant times Grasso has been insured by Signal Mutual for benefits paid to employees, pursuant to the LHWCA and its extensions, for injuries and/or death that its employees suffer in the course of their employment. Grasso and Signal (“intervenors”) sought and were granted leave to file a complaint of intervention to recover benefits paid to Raynes from any tort award he may receive in judgment against, or from any settlement with, the defendants. Raynes moved for partial summary judgment, to dismiss the complaint of intervention filed by intervenors, arguing that the complaint of intervention must be dismissed because, pursuant to the 2004 Master Services Agreement ("MSA") between Grasso and McMoRan, as well as a specific endorsement in the relevant insurance policy, intervenors waived any rights to subrogation with respect to LHWCA benefits paid to Raynes for his injuries. Intervenors countered that such a waiver of subrogation was invalid based on the rationale of Fontenot v. Chevron U.S.A., Inc., 676 So.2d 577, because Grasso had been defending and indemnifying McMoRan at all relevant times. The court noted that the issue before the Louisiana Supreme Court in Fontenot was whether the waiver of subrogation in the policy was invalid vis-à-vis the Louisiana Oilfield Anti-Indemnity Act (LOAIA). Only when a waiver of subrogation might run afoul of LOAIA would Louisiana's general rule permitting waivers of subrogation not apply. Consequently, as the parties agreed that LOAIA is inapplicable in this case, the court concluded that intervenors had waived their right to recover workers' compensation benefits from third-party tortfeasors. The court granted Raynes's motion for partial summary judgment. (USDC EDLA, September 20, 2011) 2011 U.S. Dist. LEXIS 107334
COURT REFUSED TO STRIKE JURY DEMAND DESPITE “IN ADMIRALTY” PLEADING
HUTCHINSON V. M/V MOL ENDURANCE, ET AL.
Samuel G. Hutchinson was working as a longshoreman at a Georgia port when, while untying the ship's mooring line from a dock, someone started to reel the line in. This tightened the line so fast that it allegedly struck and injured him. Invoking admiralty, diversity, in rem and in personam jurisdiction, plus §905(b) of the LHWCA and "Georgia law," Hutchinson brought this action against a vessel, its owner, and others for his personal injuries. Claiming loss of consortium, his wife joined him as co-plaintiff. The defendants moved to deny the Hutchinsons a trial by jury in this admiralty case, arguing that by pleading jury and non-jury claims in their "admiralty" complaint, the Hutchinsons had forfeited their jury trial rights. The Hutchinsons opposed and, for good measure, sought leave to amend their complaint. Defendants argued that it was too late for an amended complaint, in that the Hutchinsons had reaped the benefits of Admiralty jurisdiction rendering any amendment a futility. Defendants also insisted that by bringing a claim in rem against a vessel and thereby invoking the court's exclusive admiralty jurisdiction, and by taking advantage of the special in rem procedures available only in admiralty in order to obtain security for their claim, Hutchinson waived any right to a jury trial in this case. The court found that Hutchinson never clearly said that his non-LHWCA claims sounded in admiralty, and in fact he invoked diversity jurisdiction and demanded a jury trial to the extent supported by law. Still, since his complaint was somewhat unclear, out of an abundance of caution, Hutchinson was now moving to amend the complaint to plead more specific allegations establishing that his in personam claims asserted against the corporate defendants in the Complaint and in the Amended Complaint are based entirely on diversity of citizenship. The court held that all factors mitigate in favor of denying defendants' "forfeiture" motion and granting Hutchinson's amendment motion. The court also observed that a new defendant had recently been added and had yet to file an Answer. Additionally, an insurer had recently intervened. No FRCP 26 Conference has been held, and no Scheduling Order has been entered. As such, no material prejudice to the Court or any of the defendants had been shown to occur in allowing Hutchinson leave to amend. The court granted Hutchinson's motion to amend his complaint and denied defendants’ motion to strike his jury trial request. (USDC SDGA, September 21, 2011) 2011 U.S. Dist. LEXIS 107616
WAIVER OF SUBROGATION DOES NOT PRECLUDE LHWCA RECOVERY
FORET V. TRANSOCEAN OFFSHORE (USA), INC.
Rickey Foret was allegedly injured while performing repair work on a lifeboat owned by Transocean Offshore USA, Inc. At the time, Foret was employed by Alexander/Ryan Safety Systems, which Transocean contracted with to repair defects to the lifeboats aboard Transocean's drill Ship. In its Master Service Agreement, Transocean required Alexander/Ryan and its insurers to execute waivers of subrogation. After the accident, Alexander/Ryan, through its workers compensation carrier, paid various compensation and medical benefits to and on behalf of Foret and undertook the defense and indemnity of Foret's claims against Transocean, after Foret filed suit against Transocean. Alexander/Ryan’s insurer intervened in Foret's suit, asserting that it was entitled to reimbursement for indemnity and/or medical benefits made to or on behalf of Foret, out of any recovery by Foret in the underlying suit. Foret moved for summary judgment on the intervention, contending the insurer waived any right of subrogation it may have had against Transocean, as it did not properly plead its statutory intervention right under §933 of the LHWCA, and that therefore it had no right to intervene in Foret's recovery against Transocean. The insurer did not dispute its waiver of subrogation, but argued that subrogation is not its only interest in Foret's suit against Transocean, and that its statutory right to a set-off under the LHWCA remains (without necessity of pleading) to maintain its intervention. The court cited Petroleum Helicopters for the proposition that, despite a waiver of subrogation, the employer/carrier still possessed an interest in the third-party litigation, including a statutory right of set-off. The court held that the insurer could maintain an intervention action even in the face of a waiver of subrogation rights against Transocean. Foret’s motion for summary judgment was denied.
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
Digest #235
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #235. Although you get great up-to-date information as a subscriber to the Longshore Update, you can use this excellent resource to keep your Judges’ Benchbook up to date. Just follow the above link to the OALJ web site.
The last full supplement to the Longshore Benchbook was published in January 2005. However, OALJ has published an index that provides a cross-reference between Benchbook Topics and U.S. Supreme Court, Federal District and Circuit Courts, and Benefits Review Board decisions, issued since 2004 and covered in OALJ's "Recent Significant Decisions Monthly Digest."
And on the Admiralty front . . .
COMMON LAW TORT CLAIMS ARE NOT COVERED BY ARBITRATION AGREEMENT
DOE V. PRINCESS CRUISE LINES, LTD.
Circuit Court Opinion
Jane Doe (pseudonym to protect confidentiality) worked for Princess Cruise Lines on one of its ships, and alleged that she was drugged by other employees, raped and physically injured while she was unconscious, and when she reported to officials of the cruise line what had happened to her they treated her with indifference and even hostility, failed to provide her with proper medical treatment on board, and interfered with her attempts to obtain medical treatment and counseling ashore. When Doe was finally allowed to go to the ship's infirmary, the ship's doctor concluded that Doe had a torn labia, which could have been a result of "forced entry." The doctor drew blood and tested Doe's urine for the presence of date rape drugs. The test was positive, although the ship doctor characterized the results as "'weak,"' which Doe asserts was attributable to the fact that she had been refused medical attention for more than 48 hours after the rape. Later one crew member crew member admitted to ship personnel that he had engaged in sex with Doe while she was unconscious, and that he did so without using a condom. Doe eventually sued Princess, asserting claims under the Jones Act, general maritime law, the Seaman’s Wage Act, and common law tort claims, including false imprisonment, intentional infliction of emotional distress, spoliation of evidence, invasion of privacy claim, and fraudulent misrepresentation. Princess filed a motion to compel arbitration of all ten counts of the complaint. The district court denied that motion in its entirety, reasoning that Doe's being drugged and raped at an after-hours party in a crewmember's stateroom does not relate to, arise out of, or have a connection with the crew agreement, the employment terms, or the services Doe performed for Princes, as it would have to in order to be within the scope of the arbitration agreement between the parties. The cruise line filed a motion for reconsideration, which the district court denied. Princess appealed, contending the district court erred in its denial of Princess’s motion to compel arbitration. Princess specifically argued that the district court should not have decided the arbitrability issue but instead should have sent that issue, along with the others, to an arbitrator for decision. The appellate court rejected this argument, since Princess itself asked the district court to whether the dispute was subject to arbitration, subjecting it to the invited error doctrine. The appellate court rejected Princess’s attempt to sweep all of Doe's claims into the scope of the arbitration provision, by focusing on the differences between life at sea and life on land, arguing that Doe was "continually in the service of the vessel and subject to the call of duty at any time" simply by virtue of being a seaman. The court found that Princess’s argument was too far reaching and would effectively erase the arbitration provision's limiting language. The appellate court went on to issue a 36-page ruling parsing which of a crew member’s claims against her employer must be arbitrated under the arbitration provision of the employment agreement and which the employee could bring suit on in federal court because those claims are not within the ambit of the arbitration agreement. The appellate court ruled that some of the claims were within the ambit of the arbitration provision, but others were not. The appellate court affirmed the district court's judgment denying Princess’s motion to compel arbitration on Counts VI, VII, VIII, IX, and X of Doe's complaint, but reserved the district court's judgment on Counts I, II, III, IV, and V of Doe's complaint and remanded for proceedings consistent with its opinion. (11th Cir, September 23, 2011) 2011 U.S. App. LEXIS 19502
11TH CIRCUIT REAFFIRMS LINDO AND COMPELS ARBITRATION
HENRIQUEZ V. NCL (BAHAMAS), LTD.
Circuit Court Opinion
Hilario Henriquez, a citizen and native of Nicaragua, was employed by NCL (Bahamas) Ltd., which operates Norwegian Cruise Lines, as a dishwasher aboard one of NCL’s cruise vessels. Henriquez signed an employment contract that mandated arbitration in Nicaragua under Bahamian law for any employment dispute between Henriquez and NCL. During his employment, Henriquez alleged that another crew member smashed a glass bottle on his head and stabbed him while they were aboard the cruise ship. Henriquez filed in a complaint in state court against NCL for the injuries he allegedly sustained, alleging Jones Act negligence, maintenance and cure, and unseaworthiness. NCL removed the action to federal and moved to compel arbitration. The district court ordered the parties to arbitrate their dispute. Henriquez appealed the order compelling arbitration of his complaint relying on Thomas to support his argument that public policy prohibits the enforcement of his arbitration agreement because an arbitrator in Nicaragua applying Bahamian law might not recognize his claim under the Jones Act. However, the appellate court noted that its recent decision in Lindo rejected this exact argument. The court concluded that Henriquez could not avail himself of the public policy defense at this stage. Henriquez also argued that he signed his employment contract under duress, which makes his arbitration agreement "null and void," but the appellate court held that argument was foreclosed by Bautista. The circuit court affirmed the order compelling arbitration. (11th Cir, September 6, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 18493
11TH CIRCUIT SUBSTITUTES ITS JUDGMENT FOR THE DAUBERT GATEKEEPER’S
ROSENFELD V. OCEANIA CRUISES, INC.
Circuit Court Opinion
While a passenger aboard a cruise ship, owned and operated by Oceania Cruises, Inc., Lydia Rosenfeld allegedly slipped and fell on a ceramic tile floor near the buffet bar of the vessel's café. Rosenfeld filed suit to recover damages for her injuries, claiming that Oceania negligently caused the accident by failing to provide an adequate flooring surface for the buffet area. To prove her case, Rosenfeld offered the expert of an Australian floor-safety specialist who performed various coefficient-of-friction tests to determine the slip resistance of the flooring surfaces. The expert found that, under wet conditions, the ceramic-tile surface surrounding the buffet area had an inadequately low coefficient of friction. Thus, he proposed to testify at trial that the flooring surface was not reasonably safe for a self-serve or bistro area, because it posed a high risk for those passing through to slip and fall. The trial court precluded the expert’s testimony, finding the Rosenfeld had not established that the proposed liability expert will provide helpful analysis to the court in understanding a matter of scientific, technical or specialized expertise. Instead, the liability expert intended to testify that the floor where Rosenfeld fell was unreasonably safe for its intended use and that such conclusions are properly left for the jury to decide. Following trial, the jury returned a verdict for Oceania. Rosenfeld appealed, arguing that the trial court erred by prohibiting her from introducing expert testimony that Oceania’s choice of flooring posed a higher danger of slip-and-fall accidents than other surface types. The appellate court held that the district court improperly excluded the testimony under Fed. R. Evid. 702. Rosenfeld’s principal theory of the case was that Oceania’s choice of ceramic tile flooring was unreasonable given its knowledge that the area was heavily trafficked and susceptible to spills. A qualified expert who used reliable testing methodology could testify as to the safety of Oceania’s choice of flooring. Because the jury was not allowed to consider evidence about whether the slip resistance of the flooring posed a danger to passengers aboard the ship, it could not have found in Rosenfeld’s favor with regard to her main negligence theory since matters of slip resistance and surface friction were beyond the understanding and experience of the average lay citizen. The error was not harmless because the jury was not able to consider whether the operator's choice of flooring caused the passenger's injuries. The appellate court reversed, ruling that vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the appropriate means of dealing with expert testimony. The court held that Rosenfeld was entitled to submit expert testimony regarding the adequacy of Oceania’s choice of flooring surface. (11th Cir, September 7, 2011) 2011 U.S. App. LEXIS 18550
CRUISE LINE’S DUTY TO WARN PASSENGERS IS NOT UNLIMITED
SAMUELS V. HOLLAND AMERICAN LINE-USA INC, ET AL.
Circuit Court Opinion
While their cruise ship was anchored, Gerald Samuels and his family visited a nearby beach. Samuels was allegedly seriously injured by turbulent wave action while on the Pacific Ocean side of the beach. Samuels sued Holland American, alleging that the cruise line breached its duty to warn him of the dangers associated with swimming there. Samuels’ two expert witnesses proffered that the extreme danger of entering the water on the Pacific Ocean side of the beach was commonly known throughout the cruise-line industry. The district court granted summary judgment in favor of Holland American, holding that the cruise line did not have a duty to warn Samuels because the conditions of the ocean were open and obvious and because there was no evidence of particularly hazardous conditions or of prior accidents at that location. Samuels appealed, arguing that the district court abused its discretion in excluding the testimony of his experts and in concluding that the hazardous conditions at Lover's Beach were open and obvious as a matter of law. The appellate court determined that it was not an abuse of discretion to strike the material portions of the experts' declarations because (1) one expert was unable to provide any materials from the cruise-line industry to support his statement, and he did not contact any other comparable cruise lines to inquire whether they warned passengers, and (2) the other expert failed to specify in her declaration what information she relied on in reaching her conclusions. The cruise line had no duty to warn the passenger about swimming at the location, because the cruise line had neither actual nor constructive notice of a dangerous condition on the Pacific Ocean side of the beach. The appellate court affirmed the judgment of the district court. (9th Cir, September 2, 2011) 2011 U.S. App. LEXIS 18304
STATE COMP ACT DOES NOT PROHIBIT JONES ACT CAUSE OF ACTION
DUNNING. V. STATE OF LOUISIANA
Appellate Court Opinion
Frank Dunning Jr. filed a petition for damages, seeking relief under the Jones Act and general maritime law for injuries he allegedly sustained as a deckhand and/or crew member for the State of Louisiana through the Department of Transportation & Development aboard a State vessel. Dunning alleged he was negligently injured in the course and scope of his employment when a cable snapped causing the closing gate of the ferry to strike him in the head and upper body, requiring medical treatment. In response, the State filed a peremptory exception raising the objection of no cause of action asserting that the Louisiana Workers' Compensation Act (LWCA), provided Dunning’s exclusive remedy. After a hearing, the trial court denied the State's objection of no cause of action, finding that Dunning, a State employee, was also a seaman and entitled to seek recovery under the Jones Act and general maritime law. The State appealed the trial court’s ruling, contending that Article XII, Section 10 of the Louisiana Constitution, limits suits against the State and argued that the waiver of sovereign immunity for claims for personal injury was a limited waiver subject to the LWCA. The appellate court noted that Louisiana Supreme Court had recently held, in Fulmer v. State, Dept, of Wildlife and Fisheries, [see August 2011 Longshore Update] that nothing in the plain language of the LWCA indicated the legislature's intent to limit the State's liability to suits under the Jones Act brought by a State employee. The court found that the LWCA specifically excludes from compensation coverage any employee who is covered by the Jones Act. As such, the appellate court held that claims against the State under the Jones Act brought by a State-employed seaman, are not prohibited under the LWCA or the Louisiana Constitution. The appellate writ was denied. (La. App. 1st Cir, September 20, 2011) 2011 La. App. LEXIS 1048
COURT REVERSES SUMMARY JUDGMENT FOR ADDITIONAL DISCOVERY
FLUERAS, ET AL. V. ROYAL CARIBBEAN CRUISES, LTD.
Appellate Court Opinion
Diana Flueras was employed by The Image Group, as a photographer on a Royal Caribbean Cruises, Ltd. vessel. Flueras visited the ship's infirmary complaining of back and abdominal pain. A preliminary assessment of her condition included a pregnancy test, which was positive. Following this diagnosis Flueras underwent an outpatient abortion procedure performed by a private physician in St. Thomas. Flueras developed post surgical complications, diagnosed as catastrophic intra-abdominal bleed following a dilation and curettage abortion. The ship’s medical staff summoned an ambulance immediately; however, she died at the shore side hospital from septic shock, a ruptured ectopic pregnancy and intra-abdominal bleeding. Flueras’s Estate filed an action for unseaworthiness, alleging that Royal’s vessel was unseaworthy because, among other allegations, the vessel was manned by a medical crew that was not properly trained, instructed or supervised. Subsequently, Royal moved for summary judgment, which the trial court granted on the ground the isolated negligent act of an individual crew member or employee does not render the ship unseaworthy. The Estate appealed, arguing that the entry of final summary judgment was erroneous as the conduct of the vessel's medical staff, including failure to properly diagnose Flueras's ectopic pregnancy, during the three days following her shoreside abortion procedure constituted a "congeries of negligent acts" that rendered Royal’s vessel unseaworthy. Royal argued that the trial court order is properly affirmed because the evidence that the ship’s doctor was a fit and competent physician remained unrebutted. Alternatively, an isolated act of medical negligence carried out by an otherwise competent physician was insufficient to render Royal’s vessel unseaworthy. The appellate court began its review by observing that it is well settled that only a "condition" renders a ship unseaworthy, and that isolated, personal negligent acts are categorically excluded as a basis for liability on the part of the shipowner. The court found that the evidence submitted by the Estate failed to raise a triable issue, as to the ship doctor’s licensure, experience, knowledge, and skill, that would have precluded summary judgment. The Estate’s expert affidavits were also found insufficient to put the medical crew's competence at issue. However, the court agreed with the Estate’s argument that the medical crew's failure to comply with established shipboard policies, if they existed, could potentially render the crew incompetent and produced a condition of unseaworthiness. The appellate court also noted that the Estate was not provided the benefit of discovery with respect to shipboard medical policies and procedures, despite the fact there was evidence they exist. Because the Estate had not had the benefit of discovery regarding the existence of shipboard policies and procedures and whether the crew complied with them, the appellate court concluded that the entry of summary judgment on this issue was premature. Because of the Estate’s inability to discover certain information regarding existing medical policies and procedures and the competency of Royal’s medical crew rendered the trial court's final summary judgment premature, and the "congeries of acts" alleged included the conduct of the vessel's medical crew and their compliance with existing medical policies and procedures, the court likewise held that final summary judgment on this theory was premature. The appellate court affirmed in part and reversed in part the trial court's entry of final summary judgment in favor Royal and remanded for further proceedings. (Fl. App. 3rd, September 28, 2011) 2011 Fla. App. LEXIS 15313
COCAINE-HEAD UNABLE TO MAKE HIS CASE BEFORE JUDGE FALLON (CONT.)
COLEMAN V. OMEGA PROTEIN, INC.
Joseph Coleman allegedly sustained injuries while he was employed as a seaman by Omega Protein, Inc. onboard its fishing vessel. Coleman allegedly passed out while returning from the restroom on the vessel, hitting his head and landing onto the floor. Coleman filed suit under the Jones Act and general maritime law, seeking to recover damages for alleged negligence of Omega and the alleged unseaworthiness of the vessel, as well as maintenance and cure. In its answer, Omega denied liability and asserted the affirmative defense of willful misconduct, alleging that Coleman’s injuries were caused by his use of illegal drugs. In a prior ruling [see April 2011 Longshore Update] the court granted Omega’s motion for partial summary judgment and dismissed Coleman’s Jones Act and unseaworthiness claims. The court found that Coleman had failed to put forward a theory of negligence or unseaworthiness. As a result, the only claim remaining cause of action is Coleman’s right to maintenance and cure. The court noted that, following his alleged accident, Coleman tested positive for cocaine/metabolite at 288 ng/ml indicating Coleman’s use of cocaine within approximately 24-48 hours prior to the accident. This level of benzoylecgonine, the primary metabolite of cocaine, in Coleman’s drug sample was nearly twice the level generally required for confirmation of cocaine use. Although Coleman denied taking cocaine prior to his accident and denied ever taking drugs, the court found that the credible evidence indicated otherwise. At trial, Coleman denied taking cocaine since the accident, yet at his deposition Coleman admitted taking cocaine approximately two to three weeks before the deposition. The court found that Coleman intentionally used cocaine 24-48 hours before the incident and that his fall and resulting injuries were caused by the use of cocaine. The court concluded that Coleman engaged in willful misconduct, and that this willful misconduct caused the injuries at issue. Accordingly, the court held that Coleman was not entitled to maintenance and cure and dismissed Coleman’s final cause of action with prejudice and costs. (USDC EDLA, September 9, 2011) 2011 U.S. Dist. LEXIS 102043
COURT DENIES JURY TRIAL ON SEVERED MAINTENANCE AND CURE CLAIM
FORREST V. OMEGA PROTEIN, INC. ET AL.
Ronald Forrest filed a Jones Act suit against his former employer, Omega Protein, Inc., and its fishing vessel, upon which he was allegedly injured while serving as a member of the crew. Forrest filed his suit in state court, where his maintenance and cure claim was joined with his negligence and unseaworthiness claims. Before the trial of his state case, Forrest, on his own motion, severed, and then non-suited, the maintenance and cure claim after the state court refused to permit him to amend his pleadings to add a claim for punitive damages. Immediately after taking the non-suit of the maintenance and cure claim, Forrest filed that claim in federal court. Forrest’s negligence and unseaworthiness claims were tried to a jury, who returned a verdict for Forrest in the amount of $768,788, but reduced that amount by thirty percent to reflect a finding that Forrest was guilty of contributory negligence. Forrest's final judgment was $538,152. Forrest also demanded a jury trial for his maintenance and cure claim. Omega moved for entry of an order striking Forrest's demand for a jury trial of his claim for maintenance and cure payments. To support his request for a jury trial on the maintenance and cure claim, Forrest contended that, because the maintenance and cure claim was at one time joined with the Jones Act claim, the maintenance and cure claim must be heard by a jury under the rationale of Fitzgerald. Alternatively, Forrest argued that, even if the court were to grant Omega's request to strike the request for jury trial, the court should empanel an advisory jury under FRCP 39(c). Omega argued that Fitzgerald does not permit a jury trial of Forrest's claim because his claim for maintenance and cure is not joined with a Jones Act claim, and in fact, Forrest had already had his jury trial on the Jones Act claim, and specifically non-suited out this current claim for separate trial. Omega also opposed the request for an advisory jury. The court initially noted that admiralty was the only conceivable basis for subject matter jurisdiction over Forrest's maintenance and cure claim and, while courts have remained faithful to Fitzgerald's focus on judicial economy, they have refused to extend the decision beyond those cases in which a maritime claim is joined with a Jones Act claim. The court went on to point out that Forrest himself chose to separate his maintenance and cure claim from his Jones Act claim. Forrest would have been entitled to a jury trial on his maintenance and cure claim had he submitted it concurrently with his Jones Act claim; however, he lost that right when he chose to non-suit that claim and file it separately in federal court. The court also held that an advisory jury would not help in the court’s task of making independent findings of fact for what is essentially a matter of first impression and would result in an inefficient use of judicial resources. The court granted Omega’s motion to strike Forrest’s demand for a jury trial. (USDC EDVA, September 16, 2011) 2011 U.S. Dist. LEXIS 105285
SEAMAN’S OWN TESTIMONY AND MCCORPEN DUE HIM IN
LETT V. OMEGA PROTEIN, INC., ET AL.
James Lett filed suit against his former employer, Omega Protein, Inc., and two of Omega's fishing vessels, alleging claims under the Jones Act and under the general maritime law for unseaworthiness and maintenance and cure. Lett alleged that, while he was working for Omega as a chief engineer, he was required to work on his hands and knees for five hours chipping paint, which caused injuries to his back, head, neck, and legs. Nobody witnessed an accident, and Lett did not report an injury to Omega at the time. Lett also alleged that he aggravated these injuries later because he was required to lift hatch covers weighing an average of 85 pounds, which were too heavy. Again, nobody witnessed an accident, and Lett did not report an injury to Omega at the time. Lett complained that Omega was negligent for failing to properly supervise and train him in performing the chipping work and lifting the hatch covers,, failing to provide an adequate work-rest schedule, failing to safely operate the vessels, and operating the vessels with inadequate crews. Omega filed a motion for summary judgment arguing that it was not negligent, its vessels were seaworthy, and it does not owe Lett maintenance and cure. The court reviewed all the evidence, including Lett’s deposition testimony, where testified that maintaining the engine room, including chipping, was a part of his duties as the vessel's chief engineer. He testified that nobody directed him to do the chipping and that the needle gun was working properly. The court found that the testimony established that Omega was not negligent and vessel was not unseaworthy as alleged. With respect to Lett’s allegations of aggravation due to the hatch covers, the court noted the Lett’s own liability expert inspected the hatch covers, and found that it takes, at most, 45 pounds of pressure to lift them. Additionally, there was testimony that, at Omega's orientation, seamen are instructed to ask for assistance if they cannot lift something. The court concluded that Lett had failed to present any evidence that Omega was negligent for not replacing the allegedly heavier hatch covers, or that the alleged weight of the hatch covers on the vessel rendered the vessel unseaworthy. The court found that Lett was not entitled to maintenance and cure for his first alleged incident, as he continued to work of his own volition. The court also held that McCorpen barred recovery for maintenance and cure for the subsequent alleged incident, as Lett had concealed a pre-existing medical condition that was material to Omega’s decision to hire Lett and because Lett’s own testimony was that the second incident was an aggravation of the his initial injury. The court granted Omega’s Motion for Summary Judgment and dismissed all of Lett’s claims with prejudice. (USDC EDLA, September 19, 2011) 2011 U.S. Dist. LEXIS 105898
COURT HOLDS SEAMAN CAN HAVE TWO JONES ACT EMPLOYERS
DENNIS V. CALM C'S, INC., ET AL.
Victor Dennis was working for Calm C's Inc. as a captain assigned to a crew boat owned by Calm C's and contracted for by Weeks Marine, Inc. to assist in the performance of maintenance dredging. Dennis allegedly sustained injuries when Weeks’ dredge hit a pipeline owned by Contango Oil & Gas Company, causing an explosion. Dennis eventually sued Calm C’s, Weeks, the ACOE, and Contango, claiming negligence on the part of all parties. Contango was previous granted summary judgment, dismissing them from the lawsuit [see September 2011 Longshore Update]. Weeks moved for summary judgment on Dennis’s unseaworthiness, Jones Act, and maintenance and cure claims, contending it neither employed Dennis nor was Dennis a crew member of its dredge. As a result, Weeks argued that Dennis is precluded from asserting an unseaworthiness claim against Weeks for any alleged unseaworthy condition of its dredge. Further, Weeks contended that because Dennis was not an employee of Weeks or a crew member of its dredge, he is not entitled to maintain a Jones Act or maintenance and cure claim against Weeks. Dennis opposed Weeks’ motion, arguing that a seaman may have more than one Jones Act employer and that he was a seaman in the service of the dredge “flotilla” and a borrowed employee of Weeks. Dennis asserted that he was a crew member of the dredge flotilla, being that it was under the common control of Weeks and constituted a fleet of vessels to which Dennis owed allegiance, took orders, and furthered the mission of the fleet. After weighing the Ruiz factors, in light of Dennis’s “borrowed employee” allegation, the court concluded that the factors that supported a finding that Dennis was a borrowed servant outweighed those to the contrary. As a result, the court found that Weeks was an employer of Dennis, thus attaching potential Jones Act liability and responsibility for maintenance and cure. Notwithstanding its finding that Dennis may be a borrowed employee of Weeks, the court noted that did not ipso facto make him a crew member/employee of Weeks’ dredge. The court observed that Dennis was the Captain of his own vessel and the mere fact that he would take his meals, get coffee, and occasionally have some "downtime" on the dredge did not elevate him to crew member status. The court also rejected Dennis’s “flotilla” theory, noting that Weeks did not own the M/V Bayou Princess and that Dennis would not be able to satisfy the "single command" element of the test, because he testified that he was captain and in control of the M/V Bayou Princess during his deposition. As a result, the court held that the M/V Bayou Princess was not part of a "flotilla."Weeks’ motion for summary judgment was granted as to Dennis’s claim of unseaworthiness, but denied as to Dennis’s Jones Act and maintenance and cure claims. (USDC EDLA, September 2, 2011) 2011 U.S. Dist. LEXIS 99717
CONSIDER ENTIRE EMPLOYMENT HISTORY WHEN WEIGHING SEAMAN STATUS
BECNEL V. CHET MORRISON, INC., ET AL.
Kerry Becnel was employed by Coastal Catering, L.L.C. and, through a contract with Chet Morrison Contractors, Inc. (CMC), he was assigned to work as part of the cooking/galley staff. Becnel alleged that during his employment with Coastal, he was injured aboard a vessel while working on a project. Specifically, Becnel claimed that as he was walking from one barge to another, he fell several feet into the water below and sustained injuries. Becnel alleged that there was no safety device, railing, chain, rope, or other safety feature to prevent falling from the side of the vessel, and that this dangerous situation was well-known and within the privity of knowledge of the vessel owner. At the time of the incident, Becnel was assigned to work as a cook on a quarters barge that housed workers, who took part in removing debris from water. Becnel filed suit against various parties, including Coastal, CMC, and their insurers. CMC filed a motion for partial summary judgment as to the seaman status of Becnel and indemnity and defense against Coastal. Coastal filed a cross-motion for summary judgment. The trial court found that Becnel was a Jones Act seaman and that Coastal was required to defend and indemnify CMC against Becnel’s claim. Further, the trial court concluded that the provisions of the LHWCA were inapplicable and denied Coastal's cross-motion for partial summary judgment on seaman status, indemnity and defense. Coastal and its insurer appealed, arguing that the trial court erred in granting the motion for summary judgment and cross-motion for summary judgment filed by CMC on the issues of Jones Act seaman status, indemnity, and defense against Coastal. On appeal, Coastal argued that Becnel is not a seaman entitled to damages under the Jones Act because he did not have an employment connection to a particular vessel and/or fleet of vessels under common ownership. In support of its argument, Coastal avered that employment records and an affidavit executed by the president of Coastal established that Becnel was randomly assigned to work for various customers of Coastal. While Coastal concede that some of Becnel's assignments were to vessels, they also maintain that most of Becnel's assignments were to fixed platforms. No factual dispute existed as to whether Becnel's duties contributed to the function of the vessel or accomplishment of its mission, so the appellate court initially noted that Becnel satisfied the first prong of the Chandris test for seaman status. Becnel’s employment records showed that he had been with Coastal for a total of one hundred fifty-three (153) days at seven (7) different job sites, and he worked with five (5) of Coastal's customers. The appellate court noted that during his deposition, Becnel could not recall whether all of the work he performed for Coastal took place on some type of vessel or barge. The appellate court concluded that the record revealed evidence from which reasonable persons might draw conflicting inferences as to whether Becnel had an employment connection to an identifiable fleet of vessels. Therefore, the court found that a genuine issue of material fact existed as to this issue. The appellate court also noted that, while some of the evidence of Becnel’s work assignments was conflicting, some evidence showed the Becnel was assigned to CMC vessels 35 days of his 153-day employment with Coastal; or twenty-three percent (23%) of his employment time. As to the conflicting evidence, the court found that decision of these issues is ultimately determinative of the seaman status inquiry, and such determination required the weighing of evidence and the credibility of witnesses, which are improper considerations on a motion for summary judgment. The appellate court held that genuine issues of material fact existed as to the amount of time that Becnel spent in service of a vessel in navigation. Because genuine issues of material fact existed as to Becnel's seaman status, the appellate court found that this conclusion precludes further consideration of Coastal’s additional assignments of error. The trial court's judgment was reversed and the case was remanded the matter for further proceedings. (La. App. 4th Cir, August 31, 2011) 2011 La. App. LEXIS 1014
IT’S NOT FAIR JUDGE, THE JURY RULED AGAINST ME
WILLIAMS V. C & E BOAT RENTALS, LLC, ET AL
Michael D Williams filed a Jones Act claim for negligence and unseaworthiness arising from injuries he allegedly sustained while working aboard a C&E Boat Rentals, LLC vessel. Williams claimed he incurred respiratory injuries while cleaning the vessel's lube oil tanks, due to lack of ventilation in the tanks and C&E's failure to provide him with proper respiratory equipment. A jury trial was conducted which rendered a judgment in favor of C&E. Following the unfavorable jury verdict, Williams moved for a new trial, asserting that defense counsel's trial tactics improperly influenced the jury, by commenting to the jury that Williams’ attorney orchestrated the case, and that the jury verdict was clearly inconsistent with the evidence. C&E opposed Williams’ motion, contending its counsel's comments to the jury during closing arguments were neither improper, prejudicial, nor unsupported by evidence; and the evidence at trial overwhelmingly supported the jury's verdict. The court found that Williams had failed to demonstrate that C&E's counsel's commentary to the jury constituted a substantial injustice that would warrant the granting of a new trial. The court observed that the central issue raised at trial was not whether an accident took place, but whether C&E was liable under the Jones Act and general maritime law for injuries sustained by Williams. The court concluded that the jury's verdict was neither against the weight of evidence nor based on unfair trial proceedings. Williams’ motion for a new trial was denied. (USDC EDLA, September 2, 2011) 2011 U.S. Dist. LEXIS 99682
ANOTHER MASKING PHENOMENON CLAIM -MY KNEE PAIN HID MY BACK PAIN
DUPLANTIER V. BISSO MARINE CO., INC., ET AL.
Daniel Joseph Duplantier, while working as a welder for Bisso Marine Co. Inc. aboard its dive vessel, allegedly slipped and fell on the vessel's deck. Duplantier sued under the general maritime law, seeking to have surgery on his lower back at Bisso’s expense. Bisso moved for partial summary judgment seeking a determination that it does not owe maintenance and cure to Duplantier for his alleged back injury, maintaining that Duplantier cannot meet his burden of proving that his alleged back injury occurred, was aggravated, or manifested itself, while he worked aboard Bisso’s dive vessel. Specifically, Bisso maintained that, after his alleged "slip and fall," Duplantier did not complain about any pain in his back for six months, and made no complaints of back pain to his first three doctors, but had complained only of pain to his left knee. Finally, Bisso presented the results of an independent medical examination yielding a finding that Duplantier’s slip and fall did not cause any of his alleged back problems. In response, Duplantier maintained that the question of the cause of his herniated lumbar disc presented a classic issue of material fact to be determined by a jury. The court agreed that genuine issues of material fact existed, precluding summary judgment regarding the cause of Duplantier’s back injury and the need for surgery to remedy the injury. In short, Duplantier and Bisso presented competing evidence and, with its motion, Bisso was essentially asking the court to weigh the credibility of that evidence. The court denied Bisso’s motion for partial summary judgment. (USDC EDLA, September 21, 2011) 2011 U.S. Dist. LEXIS 107519
YOU’VE GOT TO DO MORE THAN SIMPLY OPPOSE THE MOTION
RICHARDS V. TRANSOCEAN INTERNATIONAL, INC., ET AL.
Henry Richards was employed by Oceanlife Limited, LLC, and was assigned to an ART Catering crew aboard an offshore rig owned and operated by Transocean Offshore Deepwater Drilling, Inc. ART Catering had contracted with Transocean to provide catering, housekeeping, pest control, and related services on Transocean’s rig. Richards claimed he was injured while taking trash to a trash compactor and allegedly slipped on the floor and injured his back by twisting to keep from falling onto the deck. Richards sued Transocean for Transocean's negligence and the unseaworthiness of the semi-submersible drilling vessel. Transocean moved for partial summary judgment, requesting dismissal of Richards’ Jones Act claim against it on the ground that Richards was not Transocean's borrowed employee. The court weighed the factors involving a finding of “borrowed servant” status and found that the balance of the factors, including the most fundamental factor in the analysis — the level of control and supervision exercised over Richards by ART Catering while he was performing his duties on Transocean's rig — supported a finding that Transocean did not exercise the requisite control over Richards sufficient to support a Jones Act claim based on borrowed employee status. The court also noted that Richards failed to offer any evidence in support of his claim that Transocean was his borrowed employer. As the non-moving party, the court noted that Richards must do more than simply deny the allegations raised by Transocean in order to defeat a supported motion for summary judgment. Transocean’s motion for partial summary judgment on the borrowed servant issue was granted and Richards’ Jones Act claim against Transocean was dismissed. (USDC EDLA, September 20, 2011) 2011 U.S. Dist. LEXIS 106804
DEFENSE JURY VERDICT NOT AGAINST GREAT WEIGHT OF THE EVIDENCE
LAFRANCE V. GRAND RIVER NAVIGATION COMPANY, INC.
Marc LaFrance was employed as a cook aboard Grand River Navigation Company, Inc.’s vessel, when he allegedly sustained a back injury while lowering a five-gallon container to the floor. The container was stored inside of a dispensing cooler and, according to LaFrance, while carrying the filled container to the cooler, the vessel rolled in the water and the cooler door swung shut. LaFrance filed suit, asserting that Grand River was negligent under the Jones Act and that the vessel was unseaworthy under general maritime law. LaFrance also sought maintenance and cure. At trial, LaFrance argued that Grand River‘s failure to provide a means to secure the cooler door in an open position was negligent and the failure of the cooler door to remain in an open position constituted an unseaworthy condition. The jury returned a verdict in favor of Grand River, finding no negligence and no unseaworthiness. The court entered a judgment in accordance with the jury’s verdict and LaFrance timely moved for a new trial, asserting that the great weight of the evidence presented at trial established that the vessel was unseaworthy and Grand River was negligent. The court found that the verdict rendered by the jury was not against the weight of the evidence and could have been reasonably reached because disputed issues of fact existed on which reasonable minds could differ. The mere fact that LaFrance failed to persuade the jury with the evidence that he presented at trial did not establish that the verdict was against the clear weight of the evidence. LaFrance’s motion for a new trial was denied. (USDC EDLA, September 20, 2011) 2011 U.S. Dist. LEXIS 106866
SUMMARY JUDGMENT DENIED ON URINATION-RELATED INJURY
WALDSACHS V. INLAND MARINE SERVICE, INC., ET AL.
William Waldsachs was an employee of Inland Marine Service Inc. After a thirty-day term of service on one of Inland Marine's barges, Waldsachs disembarked several hundred miles upriver from his home. From there, Waldsachs boarded a van, owned by C/C Transport, Inc., and which was to drive him home. On the trip home, Waldsachs requested the driver to pull over so that he could urinate. Waldsachs exited the van and proceeded to walk into an open field that abutted the roadway to do his business. While crossing the field, Waldsachs alleges the he stepped into a hole that had been obstructed by debris and fractured his left tibia and fibula. Unable to stand, Waldsachs crawled back to the van and was driven for treatment at a nearby hospital. The injury later required surgery. Waldsachs filed an action under the Jones Act against Inland Marine and common law negligence against C/C, alleging that Inland Marine and its agent, C/C, were negligent in transporting him. C/C moved for summary judgment on two different bases: (1) it did not owe Waldsachs a duty once he exited the vehicle and his injury was unforeseeable and (2) its actions were not a substantial factor in bringing about the harm which led to Waldsachs's injury. The court initially acknowledged that a common carrier's duty generally ends once a passenger safely alights. In this case, Waldsachs safely alighted from the van. At the same time, however, the driver dropped Waldsachs off in a potentially unsafe environment prior to arrival at his destination, such that Waldsachs could not continue safely on his journey without re-boarding the van. Although the heightened common carrier standard of care may have ended after Waldsachs safely alighted from the van, the court found that C/C still had a duty to exercise ordinary care to prevent foreseeable injury. Thus, under the circumstances, C/C’s duty did not end after Waldsachs’s feet hit the ground. The court also found that C/C should have recognized that its driver’s actions involved a risk of harm to Waldsachs. He knew that Waldsachs had to exit the vehicle to urinate. It was daylight and there was nothing blocking the view of other vehicles. It is common knowledge that human beings seek privacy while using the bathroom. In light of this required knowledge, the driver should have recognized that pulling off where he did for Waldsachs to urinate posed a foreseeable risk that Waldsachs. The court decline to rule on the causation in fact issue, believing it was best left to the jury. C/C’s motion for summary judgment was denied. (USDC WDKY, August 26, 2011) 2011 U.S. Dist. LEXIS 96853
RELEASE IS GOOD, BUT ONLY FOR THE INJURY IT PERTAINED TO
BAKER V. HELIX ENERGY SOLUTIONS GROUP, INC.
Larry Ray Baker, Jr. allegedly sustained injuries while employed by Helix Energy Solutions Group, Inc. as a seaman aboard its mobile offshore drilling unit. Baker claimed he suffered shoulder injuries while attached to the vessel's man-riding system by a tugger cable. Baker received treatment and physical therapy and was eventually pronounced at maximum medical improvement. A claims representative of Helix was present at the time and presented Baker with a General Release and Indemnity Agreement in exchange for $4,800.00. That meeting was recorded and transcribed. Thereafter, Baker returned to work for Helix and was assigned lighter duty assisting a welder. Shortly after returning to work, Baker claimed that he re-injured his shoulder after lifting a 25-35 lb. piece of metal grating. Baker was ordered off the rig after reporting the alleged second incident to a medic. Baker eventually underwent arthroscopic surgery. After Baker filed suit, claiming that his post-surgical physical restrictions had permanently impaired his earning capacity, Helix moved for summary judgment based upon the Release Baker had execute following his initial injury, contending the Release is valid and in signing the Release, Baker knowingly and voluntarily released all of his claims against Helix. Baker argued that there existed issues of material fact regarding the validity of the Release which needed to be determined by a jury, contending he was coerced into signing the Release; although he admitted he did sign the release papers in exchange for $4,800. Considering all of the facts and taking the into account the entire factual scenario, the court found that Baker received and signed the Release with full knowledge of his rights and a full appreciation of the consequences of executing the Release as it related to his initial injury. However, the court noted that the Release does not protect Helix from liability for a future injury of the same part of the body caused by a subsequent event. Thus, the release was held not to preclude claims arising out of the alleged subsequent injury to Baker’s left shoulder during a lifting incident, separate and apart from his initial alleged incident. The court granted Helix’s motion in part, to the extent that Baker’s claims arising out his initial shoulder injury were dismissed, and denied the motion to the extent that all claims arising out of the subsequent incident, causing or aggravating a shoulder injury remain in effect. (USDC EDLA, September 12, 2011) 2011 U.S. Dist. LEXIS 102255
UNSEAWORTHINESS CLAIM OF SEAMAN WHO WAS A PASSENGER IS DISMISSED
IN RE: EDWARD E. GILLEN CO.
Edward Grenier claimed he sustained an injury while on board a boat owned by Case Foundation Company and operated by employees of Edward E Gillen Co. On the date of his alleged incident, Grenier was employed by Case as a crane operator working on board a mobile crane barge. Grenier claimed he was injured as he was tossed about during inclement weather while riding aboard Case’s vessel, which was transporting him from shore to the crane barge at the start of his work day. Grenier's claim was that the crew boat was unseaworthy and that such unseaworthiness was a proximate cause of Grenier's injuries, notwithstanding the fact that Grenier was merely a passenger on the boat. Case and the vessel operator moved for partial summary judgment on Grenier's claim for vessel unseaworthiness, arguing summary judgment on Grenier's claim for vessel unseaworthiness is appropriate because, at the time of his alleged injury, Grenier was not a crew member of the crew boat, and only crew members may maintain an action for unseaworthiness against the owner of a vessel or the vessel's owner pro hac vice. Grenier attempted to argue that his status as a seaman under the Jones Act entitles him to maintain an unseaworthiness claim, regardless of whether he was a crew member of the vessel on which he was injured. The court initially noted that the question of whether an individual must be a crew member of the vessel on which he suffered his injury to bring an unseaworthiness claim was unsettled in the Seventh Circuit. Nevertheless, the court ultimately agreed with the reasoning of those courts that have held that a ship owner's duty of seaworthiness extends only to crew members of that vessel. As such, since Grenier was merely a passenger and not a crew member, he could not maintain a claim of unseaworthiness against either Case or Gillen Co. The defendants’ motion for partial summary judgment was granted. (USDC EDWI, September 7, 2011) 2011 U.S. Dist. LEXIS 101511
COURT REFUSES TO ALLOW DISCOVERY OF PRIOR CLAIMS PRACTICES
GONZALEZ V. MAERSK LINE, LIMITED, ET. AL.
Ruben Gonzalez filed his seaman’s suit against Maersk Line, Limited, for negligence under the Jones Act and the general maritime law, alleging he suffered an accident aboard Maersk's ship while working as a member of the crew of said vessel. In addition to his negligence and unseaworthiness claims, Gonzalez alleged that Maersk had willfully and arbitrarily failed to pay his maintenance and cure, and that Maersk was, therefore, liable for punitive damages. After the initial scheduling conference, Gonzalez filed a Motion to Compel requesting the court to order Maersk to conduct discovery on the issue of punitive damages. Specifically, Gonzalez sought to discover (a) information concerning claims and lawsuits filed during the past three years by other fellow seaman employees as a result of Maersk's specific failure or delay to pay maintenance and cure benefits to the injured seaman employees; and (b) information concerning any corporate investigation(s) into their employees' practices in failing to pay maintenance and cure to their seaman employees in the past three years. Gonzalez contended that this information was relevant to his claim of punitive damages. Maersk opposed Gonzalez’s motion, arguing the request was overly broad and irrelevant. The court began its analysis by observing that Gonzalez grounded his request for punitive damages on Maersk's refusal and failure to pay for his maintenance and cure expenses. As pointed out by Maersk, Gonzalez did not allege a willful scheme on the part of Maersk to deprive all seamen of their right to maintenance and cure. Consequently, the court agreed with Maersk that Gonzalez’s discovery request was not in line with the allegations in his complaint. Here, Gonzalez sought to discover information pertaining to claims and lawsuits filed against Maersk by other fellow seaman employees as a result of Maersk's specific failure or delay to pay maintenance and cure benefits to the injured seaman employees; and information concerning any internal investigation(s) as to Maersk's corporate practices in failing to pay maintenance and cure to their seaman employees. The court opined that this information would shed no light on the particular set of circumstances Gonzalez claimed to be a victim of. The court agreed with Maersk that information sought was irrelevant to Gonzalez's claim of punitive damages, and denied Gonzalez’s motion to compel. (USDC DPR, September 2, 2011) 2011 U.S. Dist. LEXIS 99647
Updater Note: While this decision is simply a discovery ruling in a district court case, I still thought it was worthy of noting it in the Update. More and more plaintiff attorneys are trying similar discovery tactics, in an effort to inflame juries and increase their chances of a punitive damages award. However, as the court here pointed out, each case should stand on its own merits. Congratulations to Mother Maersk on this favorable ruling.
MAGISTRATE REFUSES TO SANCTION LYING SEAMAN
HUNT V. MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, LLC
Thomas Hunt was employed as a mate/deckhand by Marquette Transportation Company Gulf-Inland, LLC on one of its tugs. While attempting to throw nylon mooring line, Hunt allegedly suffered permanent and disabling injuries to his lower back. Hunt filed a seaman’s lawsuit claiming that his accident resulted from the negligence and unseaworthiness of Marquette’s vessel. He further claims that Marquette wrongfully, willfully, arbitrarily, and capriciously failed to authorize medical care necessitated by his injuries. Marquette responded by filing a Motion for Adverse Inference seeking sanctions in the form of a presumption of adverse inference against Hunt for alleged perjury and intentional spoliation of evidence. Marquette contended that Hunt waited three weeks before reporting his injury, thereby preventing them from promptly investigating the matter and securing a timely drug screening. Once Marquette was able to secure a drug test, it came back positive for marijuana. Hunt’s criminal and medical records further revealed that he had a history of drug use prior to the accident and had lied about his drug history during his deposition. Based on his alleged perjury and history of drug use before and after the accident, Marquette believes that the delayed drug test would have been positive for marijuana and other drugs, which were the true cause of Hunt’s injury. Hunt opposed the motion. The court found that Marquette failed to show that it communicated an obligation to Hunt, at any point, that he had a duty to immediately report on the job injuries for purposes of securing a timely drug screen. The evidence showed that the only agreement clearly communicated to Hunt was his understanding of Marquette's zero tolerance policy on drug use. The existence of a zero tolerance policy alone does not suggest that Hunt had a duty to immediately report his injury, absent any explicit language within the company policy stating otherwise. The court held the facts were insufficient to support a finding that Hunt had a duty to preserve evidence by immediately reporting his accident so that Marquette could choose to test him to determine whether drugs played a role in the accident. Therefore, an adverse inference sanction based on spoliation of evidence was inappropriate. Marquette further argued that Hunt’s perjury alone was enough to warrant sanctions and an adverse inference is one of the least severe sanctions a court may impose. The court disagreed with Marquette’s assessment of the sanctions, noting an adverse inference is not one of the least severe sanctions a court may impose. Moreover, the court concluded that incidents of Hunt’s drug use well before the date of the accident, and three weeks after the accident, were too attenuated to draw an inference that he was under the influence of marijuana at the actual time of the accident. The court ruled that Hunts alleged perjury did not persuade it that he had used marijuana on or immediately preceding the injury such that he spoliated evidence in the form of a concealed positive drug screen, warranting an adverse inference sanction. Marquette's motion was denied. (USDC EDLA, August 5, 2011) 2011 U.S. Dist. LEXIS 100401
JURY POURS HIM OUT AND COURT LEAVES IT THAT WAY
LEE V. OMEGA PROTEIN CORP. ET AL.
Willie G Lee sued his employer, Omega Protein Corp., for injuries he allegedly sustained while working on board Omega’s fishing vessel, trying to remove fish from a net. Lee claimed he fell from the boat into water and hurt his back and neck and asserted numerous negligence claims under the Jones Act. Lee tried his case to a jury and lost. The court entered a judgment in favor of Omega. Lee timely moved to alter or amend the judgment, or in the alternative, for a new trial, asserting that the court erred in excluding a jury instruction on Omega’s cure obligation and the question of cure from the jury's verdict form. The court denied Lee’s motion, holding that Lee failed to meet the high standard that FRCP 59 imposes for altering or amending a judgment. The court observed that it heard the testimony at trial and determined that neither party submitted evidence on the issue of maximum medical cure to justify a cure instruction to the jury, or the inclusion of the cure issue on the jury verdict form. The physician’s testimony as to potential treatment options for Lee did not establish whether Lee’s condition was likely to improve or not. The court also found that Lee failed to show that he had no obligation to make a maintenance and cure demand prior to trial, which he had not done. (USDC EDLA, September 21, 2011) 2011 U.S. Dist. LEXIS 107331
YOU CAN’T GET A DEFAULT JUDGMENT IF YOU HAVE NO CAUSE OF ACTION
WILLIAMS V. WILSON, ET AL.
Byron Williams sued Kyle Wilson, who was allegedly the operator of a Boston Whaler owned and operated by Swift Spill Separator, LLC. Williams was employed by FJN Contractors, L.L.C. at the time of the incident. It was as a result of the alleged negligence of Swift Spill and the unseaworthiness of the Boston Whaler that Williams maintains he was injured. After Wilson failed to Answer Williams’ Complaint, Williams moved for a default judgment. Swift Spill opposed the motion based on the basis that under the fellow servant doctrine, as recognized under the maritime law, no claim lies against Wilson personally. All of his alleged negligence would be imputed to his employer. Williams responded that Swift Spill had no standing to oppose his motion for a default judgment. The court reviewed the pleadings, memoranda and the relevant law and determined it was unclear what the relationship was between Williams, FJN, his alleged Jones Act employer, and Swift Spill, the owner of the vessel and the employer of Wilson. Additionally, the court found that case law presented by Williams, for the proposition that a cause of action lies against Wilson, was inapplicable and without merit. Therefore, the court found it would be inappropriate to enter a default judgment against an individual against whom it is unclear whether a cause of action lies. Williams’ motion for entry of a default judgment was denied. (USDC EDLA September 14, 2011) 2011 U.S. Dist. LEXIS 103752
PUTATIVE SEAMAN CHALLENGES CITY’S RECORDS OF HIS TIME “AT SEA”
COFFEY V. THE CITY OF NEW YORK
Thomas Coffey brought suit under the Jones Act, against the City of New York, alleging that he was injured while employed by the New York City Department of Transportation as a shore-side deck hand. Specifically, Coffey claimed he was standing on a crew gangway, which was in the process of being removed from the boat, when the ferry surged from the dock, the gangway allegedly slid off the boat rail and fell onto the pier, causing him serious injury. Coffey maintained that his accident was caused by the City's negligence coupled with the unseaworthiness of the vessel and its crew. Coffey also asserted causes of action for loss of consortium and alleged violations of various Coast Guard safety statutes. In moving for dismissal of the complaint and for summary judgment, the City maintained that Coffey was not entitled to the protections of the Jones Act because at the time of the incident, he was not a covered seaman, in that he did not have a connection to a vessel in navigation that was substantial in duration and nature. In support of this proposition, the City relied on time sheets showing that Coffey spent 90.3% of his time shore-side, or less than 10% of his time on a ferry. In opposition to the City's motion and in support of his cross motion for partial summary judgment on the issue of liability, Coffey maintains that he is entitled to seaman status since the City's records should show that he was at sea 35%-50% of the time, rather than the 10% claimed by the City. In support, Coffey submitted the affidavit of one of the ferry captains, claiming that stand-by deck hands like Coffey could be assigned temporarily as a deck hand on a ferry boat without any record being kept of his time at sea. The affidavit further attested that any one or a combination of the City's records would not accurately reflect the true amount of time that a stand-by deck hand had spent at sea. The court concluded that the evidence submitted by the parties in support of their respective summary judgment motions clearly raised triable issues of fact. The court held that neither party was entitled to judgment as a matter of law. The City’s motion and Coffey’s cross motion were denied. (NY Sup. Ct, July 27, 2011, UNPUBLISHED) 2011 NY Slip Op 51716U; 2011 N.Y. Misc. LEXIS 4487
SHE HAD TO STEP ON A MILK CRATE BECAUSE YOU DIDN’T GET HER A LADDER
MOORE V. UNITED STATES OF AMERICA
Donna Moore allegedly sustained injuries to her shoulder and cervical spine when employed as a steward aboard a government owned freighter. Moore filed suit against the United States of America, asserting claims for unseaworthiness, negligence under the Jones Act, and unreasonable failure to provide prompt and adequate maintenance and cure. Moore's alleged accident occurred when she was trying to open and latch one of the freezer units in order to determine its contents. In order to extend her reach sufficiently to latch the freezer lid, Moore stood atop an upside-down plastic milk crate. While Moore was attempting to latch the lid, the milk crate on which she was standing slipped on the hard tile deck, causing her to fall into the freezer and the heavy freezer lid to fall and strike her in the back of the neck and shoulder. Following a bench trial, the court found that the record was replete with evidence that the reefer space was not fit for its intended use. The hard tile surface did not meet the maritime industry's standards or the Tile Institute's standards for skid resistance. Although the Unities States contended that even if the reefer room was unseaworthy, the unseaworthiness was not the proximate cause of Moore’s injuries, the court found that no step-ladders were provided for the reefer space despite requests and concluded that the reefer space was not fit for its intended use and was therefore unseaworthy. For the same reasons the court found the reefer room unseaworthy, the court also found that the United States breached its duty to provide Moore with a safe place to work which easily surpassed this slight causation standard to prove negligence. The court found that no comparative fault applied because Moore was not negligent. The court awarded Moore damages in the amount of $505,603.27 plus interest, which included additional maintenance and court. (USDC NDCA, September 22, 2011) 2011 U.S. Dist. LEXIS 108230
MOTION TO COMPEL ARBITRATION IS GRANTED
KOTE V. PRINCESS CRUISE LINES, LTD.
Anil Vinayak Kote was working for Princess Cruise Lines, Ltd’s aboard one of its cruise ships as a junior waiter, when he allegedly sustained a back injury while lifting a box with another employee. Kote, a citizen of India, filed suit alleging claims for Jones Act negligence and maintenance and cure. Prior to beginning his employment with Princess, Kote signed a contract which contained an arbitration provision. The terms and conditions provided that any disputes arising out of Kote's employment would be subject to binding arbitration, held in Bermuda and subject to Bermuda law. Princess moved to compel arbitration in accordance with the terms of Kote’s employment agreement. Kote opposed Princess’s motion on several grounds, including unconscionability, the agreement was the product of unequal bargaining power, and because Princess’s stipulation to waive application of Bermuda law was a unilateral contract modification and cannot remedy the employment contract's deficiencies. The court considered the strong presumption in favor of arbitration clause enforcement, the lack of specific exclusion by Congress of Jones Act claims from arbitration, Kote's lack of applicable Article II defenses to arbitration enforcement, and the court's prior application of Thomas and Bautista to circumstances similar to the case at hand, and found that it was obligated to compel the dispute to arbitration pursuant to the Convention Act. The court granted Princess’s motion to compel. (USDC SDFL, September 23, 2011) 2011 U.S. Dist. LEXIS 108717
Quotes of the Month . . . "There are some that only employ words for the purpose of disguising their thoughts." Voltaire
"A nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people." John F. Kennedy
“I count him braver who overcomes his desires than him who conquers his enemies; for the hardest victory is over self.” - - Aristotle
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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Notes From Your Updater - On September 27, 2011, the U.S. Supreme Court granted the petition for certiorari in the case of Roberts v. Sea-Land Services (Docket No. 10-1399) [see December 2010 Longshore Update]. The question presented is limited to: Whether the phrase “those newly awarded compensation during such period” in Longshore Act §6(c), applicable to all classes of disability except permanent total, can be read to mean “those first entitled to compensation during such period,” regardless of when it is awarded.
On August 24, 2011, the California Supreme Court declined to review a controversial lower court ruling that gives doctors leeway in determining workers' compensation disability ratings. The ruling involved the case of State Compensation Insurance Fund v. Workers' Compensation Appeals Board [Almaraz]. Almaraz filed for workers' compensation and was assigned a 12 percent disability rating using the AMA Guides to the Evaluation of Permanent Impairment. Almaraz appealed to the Workers' Compensation Appeals Board, arguing that doctors should have latitude in rating disabilities. The board sided with Almaraz and ruled that doctors could depart from the schedules in the AMA Guides as long as they stayed within the "four corners" of the Guides. The board's ruling was affirmed by the state's 5th Circuit Court of Appeals. The State Compensation Insurance Fund appealed the board's ruling, but the Supreme Court's decision not to review the case means the ruling allowing physician discretion will stand.
It’s official. Yes, folks, just what you have all been waiting for - notwithstanding the current state of our economy the National Average Weekly Wages (NAWW), Minimum and Maximum Compensation Rates, and Annual October Increases (Section 10(f)), effective October 1, 2011, are out. The new rates reflect a 3.05% increase in the NAWW, increasing the maximum compensation rate to $1,295.20.
The US Coast Guard and the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) have released the final reports of the Joint Investigation Team (JIT) on the April 20, 2010 Deepwater Horizon explosion and fire, with loss of life and a resulting oil spill. The two agencies released a Joint Cover Letter. The US Coast Guard re-posted Volume I of the JIT report, originally released on April 22, 2011, addressing only issues within the purview of the Coast Guard. This is now accompanied by the Commandant’s Final Action and an Enclosure responding to comments received on the initial release. The BOEMRE posted Volume II of the JIT report, addressing issues within the purview of the Bureau. This is accompanied by various Appendices.
On October 21, 2011, the Admiralty Committee of the Federal Bar Association of the Western District of Washington and the Washington State Bar Association, will present a seminar on Current Issues on Maritime Law. Need CLE credits, but don’t want to travel to the left coast? The Washington State Bar Association has perfected the process for attendance online via webcast, which provides a travel-free opportunity not only to see and hear the presentations but to ask live questions of the speakers and other webcast attendees. Washington and some other states recognize "live" CLE credits for attending by webcast. The seminar is approved for 6.75 CLE (0.75 ethics) credits in Washington.
On September 21, 2011, the 9th Circuit Court of Appeals filed an amended opinion in the case of Lopez v. Pacific Maritime Association [see April 2011 Longshore Update], replacing the opinion filed on March 2, 2011. With these amendments, Judges Ripple and Graber voted to deny the petition for panel rehearing, and Judge Pregerson has voted to grant it. Judge Graber voted to deny the petition for rehearing en banc, and Judge Ripple has so recommended. Judge Pregerson has voted to grant it. The full court was advised of the petition for rehearing en banc, and the petition for panel rehearing and petition for rehearing en banc were. The outcome remained the same and the drug test one strike rule for longshoremen was upheld. (9th Cir, September 21, 2011) 2011 U.S. App. LEXIS 19620
TRUE DOUBT RULE IS GONE. LHWCA CLAIMANT BEARS BURDEN OF PROOF
CERES MARINE TERMINALS, INC. V. GREEN, ET AL.
Circuit Court Opinion
BRB Decision
ALJ Decision
Robert Green worked as a longshoreman for 23 years, underwent audiometric testing, which revealed a 3.75 percent binaural hearing loss. Since the results of the hearing evaluation were consistent with noise exposure and noise-induced hearing loss, Green filed a claim under the LHWCA against Ceres Marine Terminals, Inc. Green later underwent audiometric testing, on behalf of the employer, which revealed a zero percent hearing impairment. In his decision, following a hearing on the issues, the ALJ found that neither audiogram was presumptive evidence of the degree of Green’s hearing loss because there was no evidence that Green was provided with a copy of either audiogram and accompanying report within 30 days of the date of the examination. The ALJ found both examinations to be credible and equally probative. He then averaged the examination results and ruled that claimant was entitled to LHWCA benefits, albeit at a reduced level. The ALJ found that Green suffered a hearing loss of 1.875 percent. The ALJ also found that Green was entitled to hearing aids for his work-related hearing impairment. As the ALJ found that both audiologists agreed that the hearing aids would benefit Green, he awarded the cost of these hearing aids, $2,500, plus an additional 20 percent, totaling $3,000, pursuant to the fee schedule used by the South Carolina Workers’ Compensation Commission. Ceres appealed the ALJ’s decision, but the BRB affirmed in all respects except for reducing the hearing aid award to $2,500. On further appeal, Ceres contended that the ALJ failed to adhere to the burden of proof as established by Greenwich Collieries, which eliminated the “true doubt” rule. It was difficult for the appellate court to find that substantial evidence supported the ALJ's conclusion that the audiograms were equally probative. However, even if the court accepted that the evidence refuting and confirming hearing loss was in equipoise, the appellate court held the Green failed to meet his burden of proof to establish disability because in Greenwich Collieries the Supreme Court previously held that when the evidence was evenly balanced, the benefits claimant had to lose. The appellate court held that the BRB committed a clear error of law when it affirmed the ALJ's decision and order, relying on its own precedent rather than the controlling law set forth by the Supreme Court. Once the unchallenged finding was made by the ALJ that the evidence was equally probative, Green failed to meet his burden of proof as a matter of law and his claim for binaural hearing loss benefits should have been denied. The decision was reversed. The award was vacated. The case was remanded to the ALJ only as to the limited issue of the award of attorney's fees. (4th Cir, September 6, 2011) 2011 U.S. App. LEXIS 18489
KNEW SHE WAS SHOT, BUT DIDN’T KNOW SHE WAS CRAZY
DYNCORP INTERNATIONAL, ET AL V. DIRECTOR, OWCP, ET AL. [MECHLER]
Circuit Court Opinion
BRB Decision
ALJ Decision
Dyncorp International, which operated various overseas prisons on behalf of the United States government, assigned Elizabeth Mechler to the Mitrovica Detention Center in Kosovo, where, on April 17, 2004—her first day on the job—she and five other Dyncorp employees were shot by a Jordanian soldier working for the United Nations. Mechler was wounded in her left leg and pelvis, but, after treatment at a military hospital, returned to work on crutches two days after the attack. Because of her physical injuries Dyncorp assigned Mechler to light duty, where she remained until January 2005. It was not until April 16, 2006, that Mechler filed a claim for workers compensation under the LHWCA, as extended by the Defense Base Act. Applying the Act’s one year statute of limitations, the ALJ found that Mechler’s claim was time barred because she should have been aware that her injuries would likely result in an impairment of her earning capacity at the time of her evaluation of October 2004. The ALJ also noted that the examining physician had diagnosed Mechler with mental impairments following his evaluation in October, 2004, and that Mechler had sought treatment for a multitude of psychological symptoms thereafter. Mechler appealed and the Benefits Review Board reversed and remanded, instructing the ALJ to apply a statutory presumption in favor of timeliness. The Board reviewed the record and concluded that there was not substantial evidence to support the ALJ’s finding that by October 2004 Mechler was constructively aware of the connection between her psychological injury and her future earning capacity. The Board was particularly concerned by what it perceived as the ALJ’s reliance on evidence related to Mechler’s temporary physical impairment immediately following the shooting. On remand, the ALJ awarded Mechler disability benefits based on her psychological impairment. Dyncorp and its insurance carrier appealed, asserting that they met their burden of production showing Mechler’s claim was untimely and that the ALJ’s initial finding of untimeliness was supported by substantial evidence. They characterized the Board’s review, not as one for substantial evidence, but rather as an exercise in unauthorized fact-finding. Reviewing the record as a whole, the appellate court found that the evidence in the case was not of the quantity or character that would allow a reasonable mind to conclude that Mechler had enough information—either from Dyncorp, her healthcare providers, or other sources—to realize more than one year before she filed her claims that her psychological problems would result in a permanent loss in earning capacity. The appellate court’s independent review of the administrative record led it to conclude that there was almost no evidence that Mechler, herself, believed she was permanently impaired more than one year before filing her claim and the ALJ’s initial finding was not supported by substantial evidence, and therefore, in reversing this finding, the Board did not exceed its statutory standard of review. Accordingly, the order of the Board reversing the ALJ’s dismissal of Mechler’s claims was affirmed. (2nd Cir, September 2, 2011) 2011 U.S. App. LEXIS 18325
ALJ’S FAILURE TO USE AMA GUIDES RULED HARMLESS ERROR
STAUBLEY V. ELECTRIC BOAT CORPORATION, ET AL.
Circuit Court Opinion
BRB Decision
ALJ Decision
Clyde Staubley was allegedly exposed to asbestos while working for Electric Boat Corporation as an electrician. Staubley was eventually diagnosed as having pleural plaques consistent with asbestos exposure. Staubley’s physician also opined that he had a 20 percent lung impairment under the AMA Guides to the Evaluation of Permanent Impairment. Staubley filed a claim for benefits under the LHWCA for a work-related lung impairment. In her decision, the ALJ found that Staubley’s work-related asbestos exposure contributed to a mildly reduced lung diffusion capacity and restrictive lung disease. The administrative law judge averaged the ratings provided by the employer’s physician and Staubley’s physician to find that Staubley had a 10 percent permanent lung impairment. The ALJ found that Staubley’s lung impairment reached maximum medical improvement in January 2008 and, accordingly, awarded Staubley compensation for a 10 percent permanent impairment commencing January 31, 2008. Staubley appealed, challenging the ALJ’s finding that he has a 10 percent lung impairment and the commencement of benefits on January 31, 2008. Staubley contended that he was entitled to an award for a five percent lung impairment from the date he retired on March 26, 1996 to January 30, 2001, and to an award for a 20 percent lung impairment as of January 30, 2001, when he was first examined and tested. The Benefits Review Board rejected Staubley’s arguments and affirmed the ALJ’s award of benefits. Although the BRB found that the ALJ most likely erred by not taking judicial notice of the Guides, it held that the error was harmless. On further appeal Staubley argued that the ALJ erred by not taking judicial notice of the AMA Guides in evaluating his claim for benefits and by finding that his impairment became permanent in January 2008 rather than at the time of his retirement. The appellate court agreed with the Board that the ALJ most likely erred by not taking judicial notice of the Guides, because the LHWCA requires that a claimant's permanent impairment be determined under the Guides. Nevertheless, the court also agreed with the Board that under the circumstances of the case, the ALJ's error was harmless. Because pleural plaques are not evidence of impairment and because one rating relied solely on those plaques to support a finding of a five-percent defect, the ALJ's decision not to credit that medical opinion was supported by substantial evidence, regardless of the ALJ’s failure to take judicial notice of the Guides. Additionally, the ALJ specifically limited her findings to pulmonary function test results which used the same predicted value standard in all tests. Finally, the appellate court held that the ALJ’s finding of maximum medical improvement in January 2008 was supported by substantial evidence. Staubley’s petition for review was denied. (2nd Cir, September 1, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 18427
HE’S AN OKLAHOMA JUDGE. WHAT DOES HE KNOW ABOUT MARITIME LAW
POORE V. CONAGRA FOODS, INC.
Austin Poore was employed by Lloyd Richards Temps (LRT), and was assigned through LRT to work for ConAgra Foods, Inc. as part of a clean-up crew on ConAgra's vessel. During his tour of duty, Poore allegedly fell twenty feet from a ladder, which was part of ConAgra's vessel, and sustained injuries. Poore filed suit under §905(b) of the LHWCA, claiming his resultant injuries were a direct result of ConAgra's negligent maintenance and/or supervision of their vessel. Poore's alleged injury occurred on January 21, 2008 and his original Complaint was filed on January 20, 2011, one day shy of the three-year anniversary. ConAgra moved to dismiss Poore’s Complaint, arguing that federal subject matter jurisdiction did not exist, because the LHWCA did not apply to the facts of the case, and even if the LHWCA did apply to the facts of the case, the case would be barred by the statute of limitations. The court found that, although Poore's claim satisfied the "situs" factor test, because his injury occurred on navigable waters, the connection to admiralty ended there. The court found the Poore failed to present any evidence nor argue any connection to "maritime commerce." If there was a connection between cleaning a vessel and maritime commerce, such connection was minimal and insufficient to sway the factors in favor of admiralty jurisdiction. Additionally, there was no evidence that Poore's action of cleaning or the objects involved in the injury (a ladder and a platform) were unique to a maritime setting. Thus, the "nexus" factor of the Executive Jet test for admiralty jurisdiction was not satisfied. The court held that the case did not fall under admiralty jurisdiction, therefore the LHWCA did not apply and federal question jurisdiction also did not exist. As the LHWCA was not applicable to the case, Poore's cause of action was held to be a negligence action arising under Oklahoma state law. Although the court had federal subject matter jurisdiction over the claim pursuant diversity jurisdiction, Oklahoma's two-year statute of limitations for torts applied to bar the case. Accordingly, ConAgra’s motion to dismiss was granted and Poore’s case was dismissed with prejudice. (USDC NDOK, September 12, 2011) 2011 U.S. Dist. LEXIS 102650
Updater Note: Let’s just say this judge is definitely LHWCA-challenged. The intent of the 1972 amendments to the LHWCA was to add additional workers to coverage, not to exclude from coverage any employee who is injured in employment on actual navigable waters and who therefore would have been covered under the original act. Executive Jet was a case involving an aircraft going down on navigable waters and whether that was sufficient to confer federal admiralty jurisdiction over aviation tort claims.
SELF-SERVING AFFIDAVIT INSUFFICIENT FOR §905(B) NEGLIGENCE
JONES, ET AL. V. COASTAL CARGO COMPANY, INC., ET AL.
Toney Lee Jones alleged that he was injured when he fell from a rope ladder leading from a vessel, owned and operated by Icon Fantastic and Geden Lines, to a barge situated next to the vessel. At the time, Jones was working for Coastal Cargo Company, Inc., a stevedoring company, discharging steel products from the vessel to the shore and to two barges, which were moored riverside of the vessel. The Coastal Cargo stevedores brought with them two rope Jacob's ladders and rigged them to the port side of the vessel. Jones claimed that while going down the ship-side Jacobs ladder, the ladder came loose and he fell to the deck of the barge. After investigating the scene, the ship Jacob ladder was found to be fully secured to the handrail of the vessel and hanging in full length. Notably, the day before Jones’ alleged accident occurred, a U.S. Coast Guard Port State Control inspection team boarded the vessel being discharged and did not find any deficiencies. Jones filed a complaint under §905(b) of the LHWCA, claiming a member of the crew of the vessel had allegedly loosened a tie on the Jacob’s ladder, causing his fall and resulting injuries. The shipowner moved for summary judgment, arguing that the vessel and her crew did not have anything to do with the alleged incident and that Jones cannot carry his summary judgment burden to show otherwise. The court initially rejected Jones contention that the shipowner owed a duty to him to furnish a seaworthy vessel, noting that the duty to furnish a seaworthy vessel is not owed to longshore workers like Jones. As to Jones’ remaining arguments, which focused on his contention that the shipowner was negligent, the court found that Jones had failed to provide any evidentiary support therefore, aside from his own self-serving affidavit, which merely restated the same conclusory statements made in his Complaint. In sum, the court found that Jones had failed to introduce any evidence to support a conclusion that the ladder from which Jones allegedly fell was defective or improperly fastened to the vessel, or that the ladder belonged to the ship. Due to a lack of any evidence indicating that the most plausible cause of Jones's injuries was any defect in the ship's equipment, or actions of the ship's crew, the court granted the shipowner’s motion for summary judgment and dismissed Jones’ claim with prejudice. (USDC EDLA, September 1, 2011) 2011 U.S. Dist. LEXIS 98749
WAIVER OF SUBROGATION IS HELD TO BE ENFORCEABLE
RAYNES, ET AL. V. MCMORAN EXPLORATION COMPANY, ET AL.
Jamie Raynes was working on a platform, owned by McMoRan Exploration Company, when he was allegedly injured after his foot pierced a defective portion of the platform deck. Grasso Production Management, Inc. employed Raynes as its lead operator in charge of the platform. Raynes filed suit, pursuant to the Outer Continental Shelf Lands Act (OCSLA) against multiple parties. At all relevant times Grasso has been insured by Signal Mutual for benefits paid to employees, pursuant to the LHWCA and its extensions, for injuries and/or death that its employees suffer in the course of their employment. Grasso and Signal (“intervenors”) sought and were granted leave to file a complaint of intervention to recover benefits paid to Raynes from any tort award he may receive in judgment against, or from any settlement with, the defendants. Raynes moved for partial summary judgment, to dismiss the complaint of intervention filed by intervenors, arguing that the complaint of intervention must be dismissed because, pursuant to the 2004 Master Services Agreement ("MSA") between Grasso and McMoRan, as well as a specific endorsement in the relevant insurance policy, intervenors waived any rights to subrogation with respect to LHWCA benefits paid to Raynes for his injuries. Intervenors countered that such a waiver of subrogation was invalid based on the rationale of Fontenot v. Chevron U.S.A., Inc., 676 So.2d 577, because Grasso had been defending and indemnifying McMoRan at all relevant times. The court noted that the issue before the Louisiana Supreme Court in Fontenot was whether the waiver of subrogation in the policy was invalid vis-à-vis the Louisiana Oilfield Anti-Indemnity Act (LOAIA). Only when a waiver of subrogation might run afoul of LOAIA would Louisiana's general rule permitting waivers of subrogation not apply. Consequently, as the parties agreed that LOAIA is inapplicable in this case, the court concluded that intervenors had waived their right to recover workers' compensation benefits from third-party tortfeasors. The court granted Raynes's motion for partial summary judgment. (USDC EDLA, September 20, 2011) 2011 U.S. Dist. LEXIS 107334
COURT REFUSED TO STRIKE JURY DEMAND DESPITE “IN ADMIRALTY” PLEADING
HUTCHINSON V. M/V MOL ENDURANCE, ET AL.
Samuel G. Hutchinson was working as a longshoreman at a Georgia port when, while untying the ship's mooring line from a dock, someone started to reel the line in. This tightened the line so fast that it allegedly struck and injured him. Invoking admiralty, diversity, in rem and in personam jurisdiction, plus §905(b) of the LHWCA and "Georgia law," Hutchinson brought this action against a vessel, its owner, and others for his personal injuries. Claiming loss of consortium, his wife joined him as co-plaintiff. The defendants moved to deny the Hutchinsons a trial by jury in this admiralty case, arguing that by pleading jury and non-jury claims in their "admiralty" complaint, the Hutchinsons had forfeited their jury trial rights. The Hutchinsons opposed and, for good measure, sought leave to amend their complaint. Defendants argued that it was too late for an amended complaint, in that the Hutchinsons had reaped the benefits of Admiralty jurisdiction rendering any amendment a futility. Defendants also insisted that by bringing a claim in rem against a vessel and thereby invoking the court's exclusive admiralty jurisdiction, and by taking advantage of the special in rem procedures available only in admiralty in order to obtain security for their claim, Hutchinson waived any right to a jury trial in this case. The court found that Hutchinson never clearly said that his non-LHWCA claims sounded in admiralty, and in fact he invoked diversity jurisdiction and demanded a jury trial to the extent supported by law. Still, since his complaint was somewhat unclear, out of an abundance of caution, Hutchinson was now moving to amend the complaint to plead more specific allegations establishing that his in personam claims asserted against the corporate defendants in the Complaint and in the Amended Complaint are based entirely on diversity of citizenship. The court held that all factors mitigate in favor of denying defendants' "forfeiture" motion and granting Hutchinson's amendment motion. The court also observed that a new defendant had recently been added and had yet to file an Answer. Additionally, an insurer had recently intervened. No FRCP 26 Conference has been held, and no Scheduling Order has been entered. As such, no material prejudice to the Court or any of the defendants had been shown to occur in allowing Hutchinson leave to amend. The court granted Hutchinson's motion to amend his complaint and denied defendants’ motion to strike his jury trial request. (USDC SDGA, September 21, 2011) 2011 U.S. Dist. LEXIS 107616
WAIVER OF SUBROGATION DOES NOT PRECLUDE LHWCA RECOVERY
FORET V. TRANSOCEAN OFFSHORE (USA), INC.
Rickey Foret was allegedly injured while performing repair work on a lifeboat owned by Transocean Offshore USA, Inc. At the time, Foret was employed by Alexander/Ryan Safety Systems, which Transocean contracted with to repair defects to the lifeboats aboard Transocean's drill Ship. In its Master Service Agreement, Transocean required Alexander/Ryan and its insurers to execute waivers of subrogation. After the accident, Alexander/Ryan, through its workers compensation carrier, paid various compensation and medical benefits to and on behalf of Foret and undertook the defense and indemnity of Foret's claims against Transocean, after Foret filed suit against Transocean. Alexander/Ryan’s insurer intervened in Foret's suit, asserting that it was entitled to reimbursement for indemnity and/or medical benefits made to or on behalf of Foret, out of any recovery by Foret in the underlying suit. Foret moved for summary judgment on the intervention, contending the insurer waived any right of subrogation it may have had against Transocean, as it did not properly plead its statutory intervention right under §933 of the LHWCA, and that therefore it had no right to intervene in Foret's recovery against Transocean. The insurer did not dispute its waiver of subrogation, but argued that subrogation is not its only interest in Foret's suit against Transocean, and that its statutory right to a set-off under the LHWCA remains (without necessity of pleading) to maintain its intervention. The court cited Petroleum Helicopters for the proposition that, despite a waiver of subrogation, the employer/carrier still possessed an interest in the third-party litigation, including a statutory right of set-off. The court held that the insurer could maintain an intervention action even in the face of a waiver of subrogation rights against Transocean. Foret’s motion for summary judgment was denied.
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
Digest #235
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #235. Although you get great up-to-date information as a subscriber to the Longshore Update, you can use this excellent resource to keep your Judges’ Benchbook up to date. Just follow the above link to the OALJ web site.
The last full supplement to the Longshore Benchbook was published in January 2005. However, OALJ has published an index that provides a cross-reference between Benchbook Topics and U.S. Supreme Court, Federal District and Circuit Courts, and Benefits Review Board decisions, issued since 2004 and covered in OALJ's "Recent Significant Decisions Monthly Digest."
And on the Admiralty front . . .
COMMON LAW TORT CLAIMS ARE NOT COVERED BY ARBITRATION AGREEMENT
DOE V. PRINCESS CRUISE LINES, LTD.
Circuit Court Opinion
Jane Doe (pseudonym to protect confidentiality) worked for Princess Cruise Lines on one of its ships, and alleged that she was drugged by other employees, raped and physically injured while she was unconscious, and when she reported to officials of the cruise line what had happened to her they treated her with indifference and even hostility, failed to provide her with proper medical treatment on board, and interfered with her attempts to obtain medical treatment and counseling ashore. When Doe was finally allowed to go to the ship's infirmary, the ship's doctor concluded that Doe had a torn labia, which could have been a result of "forced entry." The doctor drew blood and tested Doe's urine for the presence of date rape drugs. The test was positive, although the ship doctor characterized the results as "'weak,"' which Doe asserts was attributable to the fact that she had been refused medical attention for more than 48 hours after the rape. Later one crew member crew member admitted to ship personnel that he had engaged in sex with Doe while she was unconscious, and that he did so without using a condom. Doe eventually sued Princess, asserting claims under the Jones Act, general maritime law, the Seaman’s Wage Act, and common law tort claims, including false imprisonment, intentional infliction of emotional distress, spoliation of evidence, invasion of privacy claim, and fraudulent misrepresentation. Princess filed a motion to compel arbitration of all ten counts of the complaint. The district court denied that motion in its entirety, reasoning that Doe's being drugged and raped at an after-hours party in a crewmember's stateroom does not relate to, arise out of, or have a connection with the crew agreement, the employment terms, or the services Doe performed for Princes, as it would have to in order to be within the scope of the arbitration agreement between the parties. The cruise line filed a motion for reconsideration, which the district court denied. Princess appealed, contending the district court erred in its denial of Princess’s motion to compel arbitration. Princess specifically argued that the district court should not have decided the arbitrability issue but instead should have sent that issue, along with the others, to an arbitrator for decision. The appellate court rejected this argument, since Princess itself asked the district court to whether the dispute was subject to arbitration, subjecting it to the invited error doctrine. The appellate court rejected Princess’s attempt to sweep all of Doe's claims into the scope of the arbitration provision, by focusing on the differences between life at sea and life on land, arguing that Doe was "continually in the service of the vessel and subject to the call of duty at any time" simply by virtue of being a seaman. The court found that Princess’s argument was too far reaching and would effectively erase the arbitration provision's limiting language. The appellate court went on to issue a 36-page ruling parsing which of a crew member’s claims against her employer must be arbitrated under the arbitration provision of the employment agreement and which the employee could bring suit on in federal court because those claims are not within the ambit of the arbitration agreement. The appellate court ruled that some of the claims were within the ambit of the arbitration provision, but others were not. The appellate court affirmed the district court's judgment denying Princess’s motion to compel arbitration on Counts VI, VII, VIII, IX, and X of Doe's complaint, but reserved the district court's judgment on Counts I, II, III, IV, and V of Doe's complaint and remanded for proceedings consistent with its opinion. (11th Cir, September 23, 2011) 2011 U.S. App. LEXIS 19502
11TH CIRCUIT REAFFIRMS LINDO AND COMPELS ARBITRATION
HENRIQUEZ V. NCL (BAHAMAS), LTD.
Circuit Court Opinion
Hilario Henriquez, a citizen and native of Nicaragua, was employed by NCL (Bahamas) Ltd., which operates Norwegian Cruise Lines, as a dishwasher aboard one of NCL’s cruise vessels. Henriquez signed an employment contract that mandated arbitration in Nicaragua under Bahamian law for any employment dispute between Henriquez and NCL. During his employment, Henriquez alleged that another crew member smashed a glass bottle on his head and stabbed him while they were aboard the cruise ship. Henriquez filed in a complaint in state court against NCL for the injuries he allegedly sustained, alleging Jones Act negligence, maintenance and cure, and unseaworthiness. NCL removed the action to federal and moved to compel arbitration. The district court ordered the parties to arbitrate their dispute. Henriquez appealed the order compelling arbitration of his complaint relying on Thomas to support his argument that public policy prohibits the enforcement of his arbitration agreement because an arbitrator in Nicaragua applying Bahamian law might not recognize his claim under the Jones Act. However, the appellate court noted that its recent decision in Lindo rejected this exact argument. The court concluded that Henriquez could not avail himself of the public policy defense at this stage. Henriquez also argued that he signed his employment contract under duress, which makes his arbitration agreement "null and void," but the appellate court held that argument was foreclosed by Bautista. The circuit court affirmed the order compelling arbitration. (11th Cir, September 6, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 18493
11TH CIRCUIT SUBSTITUTES ITS JUDGMENT FOR THE DAUBERT GATEKEEPER’S
ROSENFELD V. OCEANIA CRUISES, INC.
Circuit Court Opinion
While a passenger aboard a cruise ship, owned and operated by Oceania Cruises, Inc., Lydia Rosenfeld allegedly slipped and fell on a ceramic tile floor near the buffet bar of the vessel's café. Rosenfeld filed suit to recover damages for her injuries, claiming that Oceania negligently caused the accident by failing to provide an adequate flooring surface for the buffet area. To prove her case, Rosenfeld offered the expert of an Australian floor-safety specialist who performed various coefficient-of-friction tests to determine the slip resistance of the flooring surfaces. The expert found that, under wet conditions, the ceramic-tile surface surrounding the buffet area had an inadequately low coefficient of friction. Thus, he proposed to testify at trial that the flooring surface was not reasonably safe for a self-serve or bistro area, because it posed a high risk for those passing through to slip and fall. The trial court precluded the expert’s testimony, finding the Rosenfeld had not established that the proposed liability expert will provide helpful analysis to the court in understanding a matter of scientific, technical or specialized expertise. Instead, the liability expert intended to testify that the floor where Rosenfeld fell was unreasonably safe for its intended use and that such conclusions are properly left for the jury to decide. Following trial, the jury returned a verdict for Oceania. Rosenfeld appealed, arguing that the trial court erred by prohibiting her from introducing expert testimony that Oceania’s choice of flooring posed a higher danger of slip-and-fall accidents than other surface types. The appellate court held that the district court improperly excluded the testimony under Fed. R. Evid. 702. Rosenfeld’s principal theory of the case was that Oceania’s choice of ceramic tile flooring was unreasonable given its knowledge that the area was heavily trafficked and susceptible to spills. A qualified expert who used reliable testing methodology could testify as to the safety of Oceania’s choice of flooring. Because the jury was not allowed to consider evidence about whether the slip resistance of the flooring posed a danger to passengers aboard the ship, it could not have found in Rosenfeld’s favor with regard to her main negligence theory since matters of slip resistance and surface friction were beyond the understanding and experience of the average lay citizen. The error was not harmless because the jury was not able to consider whether the operator's choice of flooring caused the passenger's injuries. The appellate court reversed, ruling that vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the appropriate means of dealing with expert testimony. The court held that Rosenfeld was entitled to submit expert testimony regarding the adequacy of Oceania’s choice of flooring surface. (11th Cir, September 7, 2011) 2011 U.S. App. LEXIS 18550
CRUISE LINE’S DUTY TO WARN PASSENGERS IS NOT UNLIMITED
SAMUELS V. HOLLAND AMERICAN LINE-USA INC, ET AL.
Circuit Court Opinion
While their cruise ship was anchored, Gerald Samuels and his family visited a nearby beach. Samuels was allegedly seriously injured by turbulent wave action while on the Pacific Ocean side of the beach. Samuels sued Holland American, alleging that the cruise line breached its duty to warn him of the dangers associated with swimming there. Samuels’ two expert witnesses proffered that the extreme danger of entering the water on the Pacific Ocean side of the beach was commonly known throughout the cruise-line industry. The district court granted summary judgment in favor of Holland American, holding that the cruise line did not have a duty to warn Samuels because the conditions of the ocean were open and obvious and because there was no evidence of particularly hazardous conditions or of prior accidents at that location. Samuels appealed, arguing that the district court abused its discretion in excluding the testimony of his experts and in concluding that the hazardous conditions at Lover's Beach were open and obvious as a matter of law. The appellate court determined that it was not an abuse of discretion to strike the material portions of the experts' declarations because (1) one expert was unable to provide any materials from the cruise-line industry to support his statement, and he did not contact any other comparable cruise lines to inquire whether they warned passengers, and (2) the other expert failed to specify in her declaration what information she relied on in reaching her conclusions. The cruise line had no duty to warn the passenger about swimming at the location, because the cruise line had neither actual nor constructive notice of a dangerous condition on the Pacific Ocean side of the beach. The appellate court affirmed the judgment of the district court. (9th Cir, September 2, 2011) 2011 U.S. App. LEXIS 18304
STATE COMP ACT DOES NOT PROHIBIT JONES ACT CAUSE OF ACTION
DUNNING. V. STATE OF LOUISIANA
Appellate Court Opinion
Frank Dunning Jr. filed a petition for damages, seeking relief under the Jones Act and general maritime law for injuries he allegedly sustained as a deckhand and/or crew member for the State of Louisiana through the Department of Transportation & Development aboard a State vessel. Dunning alleged he was negligently injured in the course and scope of his employment when a cable snapped causing the closing gate of the ferry to strike him in the head and upper body, requiring medical treatment. In response, the State filed a peremptory exception raising the objection of no cause of action asserting that the Louisiana Workers' Compensation Act (LWCA), provided Dunning’s exclusive remedy. After a hearing, the trial court denied the State's objection of no cause of action, finding that Dunning, a State employee, was also a seaman and entitled to seek recovery under the Jones Act and general maritime law. The State appealed the trial court’s ruling, contending that Article XII, Section 10 of the Louisiana Constitution, limits suits against the State and argued that the waiver of sovereign immunity for claims for personal injury was a limited waiver subject to the LWCA. The appellate court noted that Louisiana Supreme Court had recently held, in Fulmer v. State, Dept, of Wildlife and Fisheries, [see August 2011 Longshore Update] that nothing in the plain language of the LWCA indicated the legislature's intent to limit the State's liability to suits under the Jones Act brought by a State employee. The court found that the LWCA specifically excludes from compensation coverage any employee who is covered by the Jones Act. As such, the appellate court held that claims against the State under the Jones Act brought by a State-employed seaman, are not prohibited under the LWCA or the Louisiana Constitution. The appellate writ was denied. (La. App. 1st Cir, September 20, 2011) 2011 La. App. LEXIS 1048
COURT REVERSES SUMMARY JUDGMENT FOR ADDITIONAL DISCOVERY
FLUERAS, ET AL. V. ROYAL CARIBBEAN CRUISES, LTD.
Appellate Court Opinion
Diana Flueras was employed by The Image Group, as a photographer on a Royal Caribbean Cruises, Ltd. vessel. Flueras visited the ship's infirmary complaining of back and abdominal pain. A preliminary assessment of her condition included a pregnancy test, which was positive. Following this diagnosis Flueras underwent an outpatient abortion procedure performed by a private physician in St. Thomas. Flueras developed post surgical complications, diagnosed as catastrophic intra-abdominal bleed following a dilation and curettage abortion. The ship’s medical staff summoned an ambulance immediately; however, she died at the shore side hospital from septic shock, a ruptured ectopic pregnancy and intra-abdominal bleeding. Flueras’s Estate filed an action for unseaworthiness, alleging that Royal’s vessel was unseaworthy because, among other allegations, the vessel was manned by a medical crew that was not properly trained, instructed or supervised. Subsequently, Royal moved for summary judgment, which the trial court granted on the ground the isolated negligent act of an individual crew member or employee does not render the ship unseaworthy. The Estate appealed, arguing that the entry of final summary judgment was erroneous as the conduct of the vessel's medical staff, including failure to properly diagnose Flueras's ectopic pregnancy, during the three days following her shoreside abortion procedure constituted a "congeries of negligent acts" that rendered Royal’s vessel unseaworthy. Royal argued that the trial court order is properly affirmed because the evidence that the ship’s doctor was a fit and competent physician remained unrebutted. Alternatively, an isolated act of medical negligence carried out by an otherwise competent physician was insufficient to render Royal’s vessel unseaworthy. The appellate court began its review by observing that it is well settled that only a "condition" renders a ship unseaworthy, and that isolated, personal negligent acts are categorically excluded as a basis for liability on the part of the shipowner. The court found that the evidence submitted by the Estate failed to raise a triable issue, as to the ship doctor’s licensure, experience, knowledge, and skill, that would have precluded summary judgment. The Estate’s expert affidavits were also found insufficient to put the medical crew's competence at issue. However, the court agreed with the Estate’s argument that the medical crew's failure to comply with established shipboard policies, if they existed, could potentially render the crew incompetent and produced a condition of unseaworthiness. The appellate court also noted that the Estate was not provided the benefit of discovery with respect to shipboard medical policies and procedures, despite the fact there was evidence they exist. Because the Estate had not had the benefit of discovery regarding the existence of shipboard policies and procedures and whether the crew complied with them, the appellate court concluded that the entry of summary judgment on this issue was premature. Because of the Estate’s inability to discover certain information regarding existing medical policies and procedures and the competency of Royal’s medical crew rendered the trial court's final summary judgment premature, and the "congeries of acts" alleged included the conduct of the vessel's medical crew and their compliance with existing medical policies and procedures, the court likewise held that final summary judgment on this theory was premature. The appellate court affirmed in part and reversed in part the trial court's entry of final summary judgment in favor Royal and remanded for further proceedings. (Fl. App. 3rd, September 28, 2011) 2011 Fla. App. LEXIS 15313
COCAINE-HEAD UNABLE TO MAKE HIS CASE BEFORE JUDGE FALLON (CONT.)
COLEMAN V. OMEGA PROTEIN, INC.
Joseph Coleman allegedly sustained injuries while he was employed as a seaman by Omega Protein, Inc. onboard its fishing vessel. Coleman allegedly passed out while returning from the restroom on the vessel, hitting his head and landing onto the floor. Coleman filed suit under the Jones Act and general maritime law, seeking to recover damages for alleged negligence of Omega and the alleged unseaworthiness of the vessel, as well as maintenance and cure. In its answer, Omega denied liability and asserted the affirmative defense of willful misconduct, alleging that Coleman’s injuries were caused by his use of illegal drugs. In a prior ruling [see April 2011 Longshore Update] the court granted Omega’s motion for partial summary judgment and dismissed Coleman’s Jones Act and unseaworthiness claims. The court found that Coleman had failed to put forward a theory of negligence or unseaworthiness. As a result, the only claim remaining cause of action is Coleman’s right to maintenance and cure. The court noted that, following his alleged accident, Coleman tested positive for cocaine/metabolite at 288 ng/ml indicating Coleman’s use of cocaine within approximately 24-48 hours prior to the accident. This level of benzoylecgonine, the primary metabolite of cocaine, in Coleman’s drug sample was nearly twice the level generally required for confirmation of cocaine use. Although Coleman denied taking cocaine prior to his accident and denied ever taking drugs, the court found that the credible evidence indicated otherwise. At trial, Coleman denied taking cocaine since the accident, yet at his deposition Coleman admitted taking cocaine approximately two to three weeks before the deposition. The court found that Coleman intentionally used cocaine 24-48 hours before the incident and that his fall and resulting injuries were caused by the use of cocaine. The court concluded that Coleman engaged in willful misconduct, and that this willful misconduct caused the injuries at issue. Accordingly, the court held that Coleman was not entitled to maintenance and cure and dismissed Coleman’s final cause of action with prejudice and costs. (USDC EDLA, September 9, 2011) 2011 U.S. Dist. LEXIS 102043
COURT DENIES JURY TRIAL ON SEVERED MAINTENANCE AND CURE CLAIM
FORREST V. OMEGA PROTEIN, INC. ET AL.
Ronald Forrest filed a Jones Act suit against his former employer, Omega Protein, Inc., and its fishing vessel, upon which he was allegedly injured while serving as a member of the crew. Forrest filed his suit in state court, where his maintenance and cure claim was joined with his negligence and unseaworthiness claims. Before the trial of his state case, Forrest, on his own motion, severed, and then non-suited, the maintenance and cure claim after the state court refused to permit him to amend his pleadings to add a claim for punitive damages. Immediately after taking the non-suit of the maintenance and cure claim, Forrest filed that claim in federal court. Forrest’s negligence and unseaworthiness claims were tried to a jury, who returned a verdict for Forrest in the amount of $768,788, but reduced that amount by thirty percent to reflect a finding that Forrest was guilty of contributory negligence. Forrest's final judgment was $538,152. Forrest also demanded a jury trial for his maintenance and cure claim. Omega moved for entry of an order striking Forrest's demand for a jury trial of his claim for maintenance and cure payments. To support his request for a jury trial on the maintenance and cure claim, Forrest contended that, because the maintenance and cure claim was at one time joined with the Jones Act claim, the maintenance and cure claim must be heard by a jury under the rationale of Fitzgerald. Alternatively, Forrest argued that, even if the court were to grant Omega's request to strike the request for jury trial, the court should empanel an advisory jury under FRCP 39(c). Omega argued that Fitzgerald does not permit a jury trial of Forrest's claim because his claim for maintenance and cure is not joined with a Jones Act claim, and in fact, Forrest had already had his jury trial on the Jones Act claim, and specifically non-suited out this current claim for separate trial. Omega also opposed the request for an advisory jury. The court initially noted that admiralty was the only conceivable basis for subject matter jurisdiction over Forrest's maintenance and cure claim and, while courts have remained faithful to Fitzgerald's focus on judicial economy, they have refused to extend the decision beyond those cases in which a maritime claim is joined with a Jones Act claim. The court went on to point out that Forrest himself chose to separate his maintenance and cure claim from his Jones Act claim. Forrest would have been entitled to a jury trial on his maintenance and cure claim had he submitted it concurrently with his Jones Act claim; however, he lost that right when he chose to non-suit that claim and file it separately in federal court. The court also held that an advisory jury would not help in the court’s task of making independent findings of fact for what is essentially a matter of first impression and would result in an inefficient use of judicial resources. The court granted Omega’s motion to strike Forrest’s demand for a jury trial. (USDC EDVA, September 16, 2011) 2011 U.S. Dist. LEXIS 105285
SEAMAN’S OWN TESTIMONY AND MCCORPEN DUE HIM IN
LETT V. OMEGA PROTEIN, INC., ET AL.
James Lett filed suit against his former employer, Omega Protein, Inc., and two of Omega's fishing vessels, alleging claims under the Jones Act and under the general maritime law for unseaworthiness and maintenance and cure. Lett alleged that, while he was working for Omega as a chief engineer, he was required to work on his hands and knees for five hours chipping paint, which caused injuries to his back, head, neck, and legs. Nobody witnessed an accident, and Lett did not report an injury to Omega at the time. Lett also alleged that he aggravated these injuries later because he was required to lift hatch covers weighing an average of 85 pounds, which were too heavy. Again, nobody witnessed an accident, and Lett did not report an injury to Omega at the time. Lett complained that Omega was negligent for failing to properly supervise and train him in performing the chipping work and lifting the hatch covers,, failing to provide an adequate work-rest schedule, failing to safely operate the vessels, and operating the vessels with inadequate crews. Omega filed a motion for summary judgment arguing that it was not negligent, its vessels were seaworthy, and it does not owe Lett maintenance and cure. The court reviewed all the evidence, including Lett’s deposition testimony, where testified that maintaining the engine room, including chipping, was a part of his duties as the vessel's chief engineer. He testified that nobody directed him to do the chipping and that the needle gun was working properly. The court found that the testimony established that Omega was not negligent and vessel was not unseaworthy as alleged. With respect to Lett’s allegations of aggravation due to the hatch covers, the court noted the Lett’s own liability expert inspected the hatch covers, and found that it takes, at most, 45 pounds of pressure to lift them. Additionally, there was testimony that, at Omega's orientation, seamen are instructed to ask for assistance if they cannot lift something. The court concluded that Lett had failed to present any evidence that Omega was negligent for not replacing the allegedly heavier hatch covers, or that the alleged weight of the hatch covers on the vessel rendered the vessel unseaworthy. The court found that Lett was not entitled to maintenance and cure for his first alleged incident, as he continued to work of his own volition. The court also held that McCorpen barred recovery for maintenance and cure for the subsequent alleged incident, as Lett had concealed a pre-existing medical condition that was material to Omega’s decision to hire Lett and because Lett’s own testimony was that the second incident was an aggravation of the his initial injury. The court granted Omega’s Motion for Summary Judgment and dismissed all of Lett’s claims with prejudice. (USDC EDLA, September 19, 2011) 2011 U.S. Dist. LEXIS 105898
COURT HOLDS SEAMAN CAN HAVE TWO JONES ACT EMPLOYERS
DENNIS V. CALM C'S, INC., ET AL.
Victor Dennis was working for Calm C's Inc. as a captain assigned to a crew boat owned by Calm C's and contracted for by Weeks Marine, Inc. to assist in the performance of maintenance dredging. Dennis allegedly sustained injuries when Weeks’ dredge hit a pipeline owned by Contango Oil & Gas Company, causing an explosion. Dennis eventually sued Calm C’s, Weeks, the ACOE, and Contango, claiming negligence on the part of all parties. Contango was previous granted summary judgment, dismissing them from the lawsuit [see September 2011 Longshore Update]. Weeks moved for summary judgment on Dennis’s unseaworthiness, Jones Act, and maintenance and cure claims, contending it neither employed Dennis nor was Dennis a crew member of its dredge. As a result, Weeks argued that Dennis is precluded from asserting an unseaworthiness claim against Weeks for any alleged unseaworthy condition of its dredge. Further, Weeks contended that because Dennis was not an employee of Weeks or a crew member of its dredge, he is not entitled to maintain a Jones Act or maintenance and cure claim against Weeks. Dennis opposed Weeks’ motion, arguing that a seaman may have more than one Jones Act employer and that he was a seaman in the service of the dredge “flotilla” and a borrowed employee of Weeks. Dennis asserted that he was a crew member of the dredge flotilla, being that it was under the common control of Weeks and constituted a fleet of vessels to which Dennis owed allegiance, took orders, and furthered the mission of the fleet. After weighing the Ruiz factors, in light of Dennis’s “borrowed employee” allegation, the court concluded that the factors that supported a finding that Dennis was a borrowed servant outweighed those to the contrary. As a result, the court found that Weeks was an employer of Dennis, thus attaching potential Jones Act liability and responsibility for maintenance and cure. Notwithstanding its finding that Dennis may be a borrowed employee of Weeks, the court noted that did not ipso facto make him a crew member/employee of Weeks’ dredge. The court observed that Dennis was the Captain of his own vessel and the mere fact that he would take his meals, get coffee, and occasionally have some "downtime" on the dredge did not elevate him to crew member status. The court also rejected Dennis’s “flotilla” theory, noting that Weeks did not own the M/V Bayou Princess and that Dennis would not be able to satisfy the "single command" element of the test, because he testified that he was captain and in control of the M/V Bayou Princess during his deposition. As a result, the court held that the M/V Bayou Princess was not part of a "flotilla."Weeks’ motion for summary judgment was granted as to Dennis’s claim of unseaworthiness, but denied as to Dennis’s Jones Act and maintenance and cure claims. (USDC EDLA, September 2, 2011) 2011 U.S. Dist. LEXIS 99717
CONSIDER ENTIRE EMPLOYMENT HISTORY WHEN WEIGHING SEAMAN STATUS
BECNEL V. CHET MORRISON, INC., ET AL.
Kerry Becnel was employed by Coastal Catering, L.L.C. and, through a contract with Chet Morrison Contractors, Inc. (CMC), he was assigned to work as part of the cooking/galley staff. Becnel alleged that during his employment with Coastal, he was injured aboard a vessel while working on a project. Specifically, Becnel claimed that as he was walking from one barge to another, he fell several feet into the water below and sustained injuries. Becnel alleged that there was no safety device, railing, chain, rope, or other safety feature to prevent falling from the side of the vessel, and that this dangerous situation was well-known and within the privity of knowledge of the vessel owner. At the time of the incident, Becnel was assigned to work as a cook on a quarters barge that housed workers, who took part in removing debris from water. Becnel filed suit against various parties, including Coastal, CMC, and their insurers. CMC filed a motion for partial summary judgment as to the seaman status of Becnel and indemnity and defense against Coastal. Coastal filed a cross-motion for summary judgment. The trial court found that Becnel was a Jones Act seaman and that Coastal was required to defend and indemnify CMC against Becnel’s claim. Further, the trial court concluded that the provisions of the LHWCA were inapplicable and denied Coastal's cross-motion for partial summary judgment on seaman status, indemnity and defense. Coastal and its insurer appealed, arguing that the trial court erred in granting the motion for summary judgment and cross-motion for summary judgment filed by CMC on the issues of Jones Act seaman status, indemnity, and defense against Coastal. On appeal, Coastal argued that Becnel is not a seaman entitled to damages under the Jones Act because he did not have an employment connection to a particular vessel and/or fleet of vessels under common ownership. In support of its argument, Coastal avered that employment records and an affidavit executed by the president of Coastal established that Becnel was randomly assigned to work for various customers of Coastal. While Coastal concede that some of Becnel's assignments were to vessels, they also maintain that most of Becnel's assignments were to fixed platforms. No factual dispute existed as to whether Becnel's duties contributed to the function of the vessel or accomplishment of its mission, so the appellate court initially noted that Becnel satisfied the first prong of the Chandris test for seaman status. Becnel’s employment records showed that he had been with Coastal for a total of one hundred fifty-three (153) days at seven (7) different job sites, and he worked with five (5) of Coastal's customers. The appellate court noted that during his deposition, Becnel could not recall whether all of the work he performed for Coastal took place on some type of vessel or barge. The appellate court concluded that the record revealed evidence from which reasonable persons might draw conflicting inferences as to whether Becnel had an employment connection to an identifiable fleet of vessels. Therefore, the court found that a genuine issue of material fact existed as to this issue. The appellate court also noted that, while some of the evidence of Becnel’s work assignments was conflicting, some evidence showed the Becnel was assigned to CMC vessels 35 days of his 153-day employment with Coastal; or twenty-three percent (23%) of his employment time. As to the conflicting evidence, the court found that decision of these issues is ultimately determinative of the seaman status inquiry, and such determination required the weighing of evidence and the credibility of witnesses, which are improper considerations on a motion for summary judgment. The appellate court held that genuine issues of material fact existed as to the amount of time that Becnel spent in service of a vessel in navigation. Because genuine issues of material fact existed as to Becnel's seaman status, the appellate court found that this conclusion precludes further consideration of Coastal’s additional assignments of error. The trial court's judgment was reversed and the case was remanded the matter for further proceedings. (La. App. 4th Cir, August 31, 2011) 2011 La. App. LEXIS 1014
IT’S NOT FAIR JUDGE, THE JURY RULED AGAINST ME
WILLIAMS V. C & E BOAT RENTALS, LLC, ET AL
Michael D Williams filed a Jones Act claim for negligence and unseaworthiness arising from injuries he allegedly sustained while working aboard a C&E Boat Rentals, LLC vessel. Williams claimed he incurred respiratory injuries while cleaning the vessel's lube oil tanks, due to lack of ventilation in the tanks and C&E's failure to provide him with proper respiratory equipment. A jury trial was conducted which rendered a judgment in favor of C&E. Following the unfavorable jury verdict, Williams moved for a new trial, asserting that defense counsel's trial tactics improperly influenced the jury, by commenting to the jury that Williams’ attorney orchestrated the case, and that the jury verdict was clearly inconsistent with the evidence. C&E opposed Williams’ motion, contending its counsel's comments to the jury during closing arguments were neither improper, prejudicial, nor unsupported by evidence; and the evidence at trial overwhelmingly supported the jury's verdict. The court found that Williams had failed to demonstrate that C&E's counsel's commentary to the jury constituted a substantial injustice that would warrant the granting of a new trial. The court observed that the central issue raised at trial was not whether an accident took place, but whether C&E was liable under the Jones Act and general maritime law for injuries sustained by Williams. The court concluded that the jury's verdict was neither against the weight of evidence nor based on unfair trial proceedings. Williams’ motion for a new trial was denied. (USDC EDLA, September 2, 2011) 2011 U.S. Dist. LEXIS 99682
ANOTHER MASKING PHENOMENON CLAIM -MY KNEE PAIN HID MY BACK PAIN
DUPLANTIER V. BISSO MARINE CO., INC., ET AL.
Daniel Joseph Duplantier, while working as a welder for Bisso Marine Co. Inc. aboard its dive vessel, allegedly slipped and fell on the vessel's deck. Duplantier sued under the general maritime law, seeking to have surgery on his lower back at Bisso’s expense. Bisso moved for partial summary judgment seeking a determination that it does not owe maintenance and cure to Duplantier for his alleged back injury, maintaining that Duplantier cannot meet his burden of proving that his alleged back injury occurred, was aggravated, or manifested itself, while he worked aboard Bisso’s dive vessel. Specifically, Bisso maintained that, after his alleged "slip and fall," Duplantier did not complain about any pain in his back for six months, and made no complaints of back pain to his first three doctors, but had complained only of pain to his left knee. Finally, Bisso presented the results of an independent medical examination yielding a finding that Duplantier’s slip and fall did not cause any of his alleged back problems. In response, Duplantier maintained that the question of the cause of his herniated lumbar disc presented a classic issue of material fact to be determined by a jury. The court agreed that genuine issues of material fact existed, precluding summary judgment regarding the cause of Duplantier’s back injury and the need for surgery to remedy the injury. In short, Duplantier and Bisso presented competing evidence and, with its motion, Bisso was essentially asking the court to weigh the credibility of that evidence. The court denied Bisso’s motion for partial summary judgment. (USDC EDLA, September 21, 2011) 2011 U.S. Dist. LEXIS 107519
YOU’VE GOT TO DO MORE THAN SIMPLY OPPOSE THE MOTION
RICHARDS V. TRANSOCEAN INTERNATIONAL, INC., ET AL.
Henry Richards was employed by Oceanlife Limited, LLC, and was assigned to an ART Catering crew aboard an offshore rig owned and operated by Transocean Offshore Deepwater Drilling, Inc. ART Catering had contracted with Transocean to provide catering, housekeeping, pest control, and related services on Transocean’s rig. Richards claimed he was injured while taking trash to a trash compactor and allegedly slipped on the floor and injured his back by twisting to keep from falling onto the deck. Richards sued Transocean for Transocean's negligence and the unseaworthiness of the semi-submersible drilling vessel. Transocean moved for partial summary judgment, requesting dismissal of Richards’ Jones Act claim against it on the ground that Richards was not Transocean's borrowed employee. The court weighed the factors involving a finding of “borrowed servant” status and found that the balance of the factors, including the most fundamental factor in the analysis — the level of control and supervision exercised over Richards by ART Catering while he was performing his duties on Transocean's rig — supported a finding that Transocean did not exercise the requisite control over Richards sufficient to support a Jones Act claim based on borrowed employee status. The court also noted that Richards failed to offer any evidence in support of his claim that Transocean was his borrowed employer. As the non-moving party, the court noted that Richards must do more than simply deny the allegations raised by Transocean in order to defeat a supported motion for summary judgment. Transocean’s motion for partial summary judgment on the borrowed servant issue was granted and Richards’ Jones Act claim against Transocean was dismissed. (USDC EDLA, September 20, 2011) 2011 U.S. Dist. LEXIS 106804
DEFENSE JURY VERDICT NOT AGAINST GREAT WEIGHT OF THE EVIDENCE
LAFRANCE V. GRAND RIVER NAVIGATION COMPANY, INC.
Marc LaFrance was employed as a cook aboard Grand River Navigation Company, Inc.’s vessel, when he allegedly sustained a back injury while lowering a five-gallon container to the floor. The container was stored inside of a dispensing cooler and, according to LaFrance, while carrying the filled container to the cooler, the vessel rolled in the water and the cooler door swung shut. LaFrance filed suit, asserting that Grand River was negligent under the Jones Act and that the vessel was unseaworthy under general maritime law. LaFrance also sought maintenance and cure. At trial, LaFrance argued that Grand River‘s failure to provide a means to secure the cooler door in an open position was negligent and the failure of the cooler door to remain in an open position constituted an unseaworthy condition. The jury returned a verdict in favor of Grand River, finding no negligence and no unseaworthiness. The court entered a judgment in accordance with the jury’s verdict and LaFrance timely moved for a new trial, asserting that the great weight of the evidence presented at trial established that the vessel was unseaworthy and Grand River was negligent. The court found that the verdict rendered by the jury was not against the weight of the evidence and could have been reasonably reached because disputed issues of fact existed on which reasonable minds could differ. The mere fact that LaFrance failed to persuade the jury with the evidence that he presented at trial did not establish that the verdict was against the clear weight of the evidence. LaFrance’s motion for a new trial was denied. (USDC EDLA, September 20, 2011) 2011 U.S. Dist. LEXIS 106866
SUMMARY JUDGMENT DENIED ON URINATION-RELATED INJURY
WALDSACHS V. INLAND MARINE SERVICE, INC., ET AL.
William Waldsachs was an employee of Inland Marine Service Inc. After a thirty-day term of service on one of Inland Marine's barges, Waldsachs disembarked several hundred miles upriver from his home. From there, Waldsachs boarded a van, owned by C/C Transport, Inc., and which was to drive him home. On the trip home, Waldsachs requested the driver to pull over so that he could urinate. Waldsachs exited the van and proceeded to walk into an open field that abutted the roadway to do his business. While crossing the field, Waldsachs alleges the he stepped into a hole that had been obstructed by debris and fractured his left tibia and fibula. Unable to stand, Waldsachs crawled back to the van and was driven for treatment at a nearby hospital. The injury later required surgery. Waldsachs filed an action under the Jones Act against Inland Marine and common law negligence against C/C, alleging that Inland Marine and its agent, C/C, were negligent in transporting him. C/C moved for summary judgment on two different bases: (1) it did not owe Waldsachs a duty once he exited the vehicle and his injury was unforeseeable and (2) its actions were not a substantial factor in bringing about the harm which led to Waldsachs's injury. The court initially acknowledged that a common carrier's duty generally ends once a passenger safely alights. In this case, Waldsachs safely alighted from the van. At the same time, however, the driver dropped Waldsachs off in a potentially unsafe environment prior to arrival at his destination, such that Waldsachs could not continue safely on his journey without re-boarding the van. Although the heightened common carrier standard of care may have ended after Waldsachs safely alighted from the van, the court found that C/C still had a duty to exercise ordinary care to prevent foreseeable injury. Thus, under the circumstances, C/C’s duty did not end after Waldsachs’s feet hit the ground. The court also found that C/C should have recognized that its driver’s actions involved a risk of harm to Waldsachs. He knew that Waldsachs had to exit the vehicle to urinate. It was daylight and there was nothing blocking the view of other vehicles. It is common knowledge that human beings seek privacy while using the bathroom. In light of this required knowledge, the driver should have recognized that pulling off where he did for Waldsachs to urinate posed a foreseeable risk that Waldsachs. The court decline to rule on the causation in fact issue, believing it was best left to the jury. C/C’s motion for summary judgment was denied. (USDC WDKY, August 26, 2011) 2011 U.S. Dist. LEXIS 96853
RELEASE IS GOOD, BUT ONLY FOR THE INJURY IT PERTAINED TO
BAKER V. HELIX ENERGY SOLUTIONS GROUP, INC.
Larry Ray Baker, Jr. allegedly sustained injuries while employed by Helix Energy Solutions Group, Inc. as a seaman aboard its mobile offshore drilling unit. Baker claimed he suffered shoulder injuries while attached to the vessel's man-riding system by a tugger cable. Baker received treatment and physical therapy and was eventually pronounced at maximum medical improvement. A claims representative of Helix was present at the time and presented Baker with a General Release and Indemnity Agreement in exchange for $4,800.00. That meeting was recorded and transcribed. Thereafter, Baker returned to work for Helix and was assigned lighter duty assisting a welder. Shortly after returning to work, Baker claimed that he re-injured his shoulder after lifting a 25-35 lb. piece of metal grating. Baker was ordered off the rig after reporting the alleged second incident to a medic. Baker eventually underwent arthroscopic surgery. After Baker filed suit, claiming that his post-surgical physical restrictions had permanently impaired his earning capacity, Helix moved for summary judgment based upon the Release Baker had execute following his initial injury, contending the Release is valid and in signing the Release, Baker knowingly and voluntarily released all of his claims against Helix. Baker argued that there existed issues of material fact regarding the validity of the Release which needed to be determined by a jury, contending he was coerced into signing the Release; although he admitted he did sign the release papers in exchange for $4,800. Considering all of the facts and taking the into account the entire factual scenario, the court found that Baker received and signed the Release with full knowledge of his rights and a full appreciation of the consequences of executing the Release as it related to his initial injury. However, the court noted that the Release does not protect Helix from liability for a future injury of the same part of the body caused by a subsequent event. Thus, the release was held not to preclude claims arising out of the alleged subsequent injury to Baker’s left shoulder during a lifting incident, separate and apart from his initial alleged incident. The court granted Helix’s motion in part, to the extent that Baker’s claims arising out his initial shoulder injury were dismissed, and denied the motion to the extent that all claims arising out of the subsequent incident, causing or aggravating a shoulder injury remain in effect. (USDC EDLA, September 12, 2011) 2011 U.S. Dist. LEXIS 102255
UNSEAWORTHINESS CLAIM OF SEAMAN WHO WAS A PASSENGER IS DISMISSED
IN RE: EDWARD E. GILLEN CO.
Edward Grenier claimed he sustained an injury while on board a boat owned by Case Foundation Company and operated by employees of Edward E Gillen Co. On the date of his alleged incident, Grenier was employed by Case as a crane operator working on board a mobile crane barge. Grenier claimed he was injured as he was tossed about during inclement weather while riding aboard Case’s vessel, which was transporting him from shore to the crane barge at the start of his work day. Grenier's claim was that the crew boat was unseaworthy and that such unseaworthiness was a proximate cause of Grenier's injuries, notwithstanding the fact that Grenier was merely a passenger on the boat. Case and the vessel operator moved for partial summary judgment on Grenier's claim for vessel unseaworthiness, arguing summary judgment on Grenier's claim for vessel unseaworthiness is appropriate because, at the time of his alleged injury, Grenier was not a crew member of the crew boat, and only crew members may maintain an action for unseaworthiness against the owner of a vessel or the vessel's owner pro hac vice. Grenier attempted to argue that his status as a seaman under the Jones Act entitles him to maintain an unseaworthiness claim, regardless of whether he was a crew member of the vessel on which he was injured. The court initially noted that the question of whether an individual must be a crew member of the vessel on which he suffered his injury to bring an unseaworthiness claim was unsettled in the Seventh Circuit. Nevertheless, the court ultimately agreed with the reasoning of those courts that have held that a ship owner's duty of seaworthiness extends only to crew members of that vessel. As such, since Grenier was merely a passenger and not a crew member, he could not maintain a claim of unseaworthiness against either Case or Gillen Co. The defendants’ motion for partial summary judgment was granted. (USDC EDWI, September 7, 2011) 2011 U.S. Dist. LEXIS 101511
COURT REFUSES TO ALLOW DISCOVERY OF PRIOR CLAIMS PRACTICES
GONZALEZ V. MAERSK LINE, LIMITED, ET. AL.
Ruben Gonzalez filed his seaman’s suit against Maersk Line, Limited, for negligence under the Jones Act and the general maritime law, alleging he suffered an accident aboard Maersk's ship while working as a member of the crew of said vessel. In addition to his negligence and unseaworthiness claims, Gonzalez alleged that Maersk had willfully and arbitrarily failed to pay his maintenance and cure, and that Maersk was, therefore, liable for punitive damages. After the initial scheduling conference, Gonzalez filed a Motion to Compel requesting the court to order Maersk to conduct discovery on the issue of punitive damages. Specifically, Gonzalez sought to discover (a) information concerning claims and lawsuits filed during the past three years by other fellow seaman employees as a result of Maersk's specific failure or delay to pay maintenance and cure benefits to the injured seaman employees; and (b) information concerning any corporate investigation(s) into their employees' practices in failing to pay maintenance and cure to their seaman employees in the past three years. Gonzalez contended that this information was relevant to his claim of punitive damages. Maersk opposed Gonzalez’s motion, arguing the request was overly broad and irrelevant. The court began its analysis by observing that Gonzalez grounded his request for punitive damages on Maersk's refusal and failure to pay for his maintenance and cure expenses. As pointed out by Maersk, Gonzalez did not allege a willful scheme on the part of Maersk to deprive all seamen of their right to maintenance and cure. Consequently, the court agreed with Maersk that Gonzalez’s discovery request was not in line with the allegations in his complaint. Here, Gonzalez sought to discover information pertaining to claims and lawsuits filed against Maersk by other fellow seaman employees as a result of Maersk's specific failure or delay to pay maintenance and cure benefits to the injured seaman employees; and information concerning any internal investigation(s) as to Maersk's corporate practices in failing to pay maintenance and cure to their seaman employees. The court opined that this information would shed no light on the particular set of circumstances Gonzalez claimed to be a victim of. The court agreed with Maersk that information sought was irrelevant to Gonzalez's claim of punitive damages, and denied Gonzalez’s motion to compel. (USDC DPR, September 2, 2011) 2011 U.S. Dist. LEXIS 99647
Updater Note: While this decision is simply a discovery ruling in a district court case, I still thought it was worthy of noting it in the Update. More and more plaintiff attorneys are trying similar discovery tactics, in an effort to inflame juries and increase their chances of a punitive damages award. However, as the court here pointed out, each case should stand on its own merits. Congratulations to Mother Maersk on this favorable ruling.
MAGISTRATE REFUSES TO SANCTION LYING SEAMAN
HUNT V. MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, LLC
Thomas Hunt was employed as a mate/deckhand by Marquette Transportation Company Gulf-Inland, LLC on one of its tugs. While attempting to throw nylon mooring line, Hunt allegedly suffered permanent and disabling injuries to his lower back. Hunt filed a seaman’s lawsuit claiming that his accident resulted from the negligence and unseaworthiness of Marquette’s vessel. He further claims that Marquette wrongfully, willfully, arbitrarily, and capriciously failed to authorize medical care necessitated by his injuries. Marquette responded by filing a Motion for Adverse Inference seeking sanctions in the form of a presumption of adverse inference against Hunt for alleged perjury and intentional spoliation of evidence. Marquette contended that Hunt waited three weeks before reporting his injury, thereby preventing them from promptly investigating the matter and securing a timely drug screening. Once Marquette was able to secure a drug test, it came back positive for marijuana. Hunt’s criminal and medical records further revealed that he had a history of drug use prior to the accident and had lied about his drug history during his deposition. Based on his alleged perjury and history of drug use before and after the accident, Marquette believes that the delayed drug test would have been positive for marijuana and other drugs, which were the true cause of Hunt’s injury. Hunt opposed the motion. The court found that Marquette failed to show that it communicated an obligation to Hunt, at any point, that he had a duty to immediately report on the job injuries for purposes of securing a timely drug screen. The evidence showed that the only agreement clearly communicated to Hunt was his understanding of Marquette's zero tolerance policy on drug use. The existence of a zero tolerance policy alone does not suggest that Hunt had a duty to immediately report his injury, absent any explicit language within the company policy stating otherwise. The court held the facts were insufficient to support a finding that Hunt had a duty to preserve evidence by immediately reporting his accident so that Marquette could choose to test him to determine whether drugs played a role in the accident. Therefore, an adverse inference sanction based on spoliation of evidence was inappropriate. Marquette further argued that Hunt’s perjury alone was enough to warrant sanctions and an adverse inference is one of the least severe sanctions a court may impose. The court disagreed with Marquette’s assessment of the sanctions, noting an adverse inference is not one of the least severe sanctions a court may impose. Moreover, the court concluded that incidents of Hunt’s drug use well before the date of the accident, and three weeks after the accident, were too attenuated to draw an inference that he was under the influence of marijuana at the actual time of the accident. The court ruled that Hunts alleged perjury did not persuade it that he had used marijuana on or immediately preceding the injury such that he spoliated evidence in the form of a concealed positive drug screen, warranting an adverse inference sanction. Marquette's motion was denied. (USDC EDLA, August 5, 2011) 2011 U.S. Dist. LEXIS 100401
JURY POURS HIM OUT AND COURT LEAVES IT THAT WAY
LEE V. OMEGA PROTEIN CORP. ET AL.
Willie G Lee sued his employer, Omega Protein Corp., for injuries he allegedly sustained while working on board Omega’s fishing vessel, trying to remove fish from a net. Lee claimed he fell from the boat into water and hurt his back and neck and asserted numerous negligence claims under the Jones Act. Lee tried his case to a jury and lost. The court entered a judgment in favor of Omega. Lee timely moved to alter or amend the judgment, or in the alternative, for a new trial, asserting that the court erred in excluding a jury instruction on Omega’s cure obligation and the question of cure from the jury's verdict form. The court denied Lee’s motion, holding that Lee failed to meet the high standard that FRCP 59 imposes for altering or amending a judgment. The court observed that it heard the testimony at trial and determined that neither party submitted evidence on the issue of maximum medical cure to justify a cure instruction to the jury, or the inclusion of the cure issue on the jury verdict form. The physician’s testimony as to potential treatment options for Lee did not establish whether Lee’s condition was likely to improve or not. The court also found that Lee failed to show that he had no obligation to make a maintenance and cure demand prior to trial, which he had not done. (USDC EDLA, September 21, 2011) 2011 U.S. Dist. LEXIS 107331
YOU CAN’T GET A DEFAULT JUDGMENT IF YOU HAVE NO CAUSE OF ACTION
WILLIAMS V. WILSON, ET AL.
Byron Williams sued Kyle Wilson, who was allegedly the operator of a Boston Whaler owned and operated by Swift Spill Separator, LLC. Williams was employed by FJN Contractors, L.L.C. at the time of the incident. It was as a result of the alleged negligence of Swift Spill and the unseaworthiness of the Boston Whaler that Williams maintains he was injured. After Wilson failed to Answer Williams’ Complaint, Williams moved for a default judgment. Swift Spill opposed the motion based on the basis that under the fellow servant doctrine, as recognized under the maritime law, no claim lies against Wilson personally. All of his alleged negligence would be imputed to his employer. Williams responded that Swift Spill had no standing to oppose his motion for a default judgment. The court reviewed the pleadings, memoranda and the relevant law and determined it was unclear what the relationship was between Williams, FJN, his alleged Jones Act employer, and Swift Spill, the owner of the vessel and the employer of Wilson. Additionally, the court found that case law presented by Williams, for the proposition that a cause of action lies against Wilson, was inapplicable and without merit. Therefore, the court found it would be inappropriate to enter a default judgment against an individual against whom it is unclear whether a cause of action lies. Williams’ motion for entry of a default judgment was denied. (USDC EDLA September 14, 2011) 2011 U.S. Dist. LEXIS 103752
PUTATIVE SEAMAN CHALLENGES CITY’S RECORDS OF HIS TIME “AT SEA”
COFFEY V. THE CITY OF NEW YORK
Thomas Coffey brought suit under the Jones Act, against the City of New York, alleging that he was injured while employed by the New York City Department of Transportation as a shore-side deck hand. Specifically, Coffey claimed he was standing on a crew gangway, which was in the process of being removed from the boat, when the ferry surged from the dock, the gangway allegedly slid off the boat rail and fell onto the pier, causing him serious injury. Coffey maintained that his accident was caused by the City's negligence coupled with the unseaworthiness of the vessel and its crew. Coffey also asserted causes of action for loss of consortium and alleged violations of various Coast Guard safety statutes. In moving for dismissal of the complaint and for summary judgment, the City maintained that Coffey was not entitled to the protections of the Jones Act because at the time of the incident, he was not a covered seaman, in that he did not have a connection to a vessel in navigation that was substantial in duration and nature. In support of this proposition, the City relied on time sheets showing that Coffey spent 90.3% of his time shore-side, or less than 10% of his time on a ferry. In opposition to the City's motion and in support of his cross motion for partial summary judgment on the issue of liability, Coffey maintains that he is entitled to seaman status since the City's records should show that he was at sea 35%-50% of the time, rather than the 10% claimed by the City. In support, Coffey submitted the affidavit of one of the ferry captains, claiming that stand-by deck hands like Coffey could be assigned temporarily as a deck hand on a ferry boat without any record being kept of his time at sea. The affidavit further attested that any one or a combination of the City's records would not accurately reflect the true amount of time that a stand-by deck hand had spent at sea. The court concluded that the evidence submitted by the parties in support of their respective summary judgment motions clearly raised triable issues of fact. The court held that neither party was entitled to judgment as a matter of law. The City’s motion and Coffey’s cross motion were denied. (NY Sup. Ct, July 27, 2011, UNPUBLISHED) 2011 NY Slip Op 51716U; 2011 N.Y. Misc. LEXIS 4487
SHE HAD TO STEP ON A MILK CRATE BECAUSE YOU DIDN’T GET HER A LADDER
MOORE V. UNITED STATES OF AMERICA
Donna Moore allegedly sustained injuries to her shoulder and cervical spine when employed as a steward aboard a government owned freighter. Moore filed suit against the United States of America, asserting claims for unseaworthiness, negligence under the Jones Act, and unreasonable failure to provide prompt and adequate maintenance and cure. Moore's alleged accident occurred when she was trying to open and latch one of the freezer units in order to determine its contents. In order to extend her reach sufficiently to latch the freezer lid, Moore stood atop an upside-down plastic milk crate. While Moore was attempting to latch the lid, the milk crate on which she was standing slipped on the hard tile deck, causing her to fall into the freezer and the heavy freezer lid to fall and strike her in the back of the neck and shoulder. Following a bench trial, the court found that the record was replete with evidence that the reefer space was not fit for its intended use. The hard tile surface did not meet the maritime industry's standards or the Tile Institute's standards for skid resistance. Although the Unities States contended that even if the reefer room was unseaworthy, the unseaworthiness was not the proximate cause of Moore’s injuries, the court found that no step-ladders were provided for the reefer space despite requests and concluded that the reefer space was not fit for its intended use and was therefore unseaworthy. For the same reasons the court found the reefer room unseaworthy, the court also found that the United States breached its duty to provide Moore with a safe place to work which easily surpassed this slight causation standard to prove negligence. The court found that no comparative fault applied because Moore was not negligent. The court awarded Moore damages in the amount of $505,603.27 plus interest, which included additional maintenance and court. (USDC NDCA, September 22, 2011) 2011 U.S. Dist. LEXIS 108230
MOTION TO COMPEL ARBITRATION IS GRANTED
KOTE V. PRINCESS CRUISE LINES, LTD.
Anil Vinayak Kote was working for Princess Cruise Lines, Ltd’s aboard one of its cruise ships as a junior waiter, when he allegedly sustained a back injury while lifting a box with another employee. Kote, a citizen of India, filed suit alleging claims for Jones Act negligence and maintenance and cure. Prior to beginning his employment with Princess, Kote signed a contract which contained an arbitration provision. The terms and conditions provided that any disputes arising out of Kote's employment would be subject to binding arbitration, held in Bermuda and subject to Bermuda law. Princess moved to compel arbitration in accordance with the terms of Kote’s employment agreement. Kote opposed Princess’s motion on several grounds, including unconscionability, the agreement was the product of unequal bargaining power, and because Princess’s stipulation to waive application of Bermuda law was a unilateral contract modification and cannot remedy the employment contract's deficiencies. The court considered the strong presumption in favor of arbitration clause enforcement, the lack of specific exclusion by Congress of Jones Act claims from arbitration, Kote's lack of applicable Article II defenses to arbitration enforcement, and the court's prior application of Thomas and Bautista to circumstances similar to the case at hand, and found that it was obligated to compel the dispute to arbitration pursuant to the Convention Act. The court granted Princess’s motion to compel. (USDC SDFL, September 23, 2011) 2011 U.S. Dist. LEXIS 108717
Quotes of the Month . . . "There are some that only employ words for the purpose of disguising their thoughts." Voltaire
"A nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people." John F. Kennedy
“I count him braver who overcomes his desires than him who conquers his enemies; for the hardest victory is over self.” - - Aristotle
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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