April 2012 No Cases to Report on This Month - April Fool
Notes From Your Updater - On February 28, 2012, the Virginia Senate approved a bill under which shipyard workers and longshoremen who suffer serious injuries on the job will no longer be covered through Virginia's workers' compensation program. HB153, sponsored by Del. Lee Ware, R-Powhatan, passed 20-19, with largely Republican support. It already had passed the House, 70-26, and now goes to the desk of Gov. Bob McDonnell. This legislation will end concurrent jurisdiction in the state of Virginia. Several efforts have been made to accomplish this in the past, without success. The International Longshoremen's Association in Hampton Roads strongly opposed the legislation. The legislation excludes a person who suffers an injury on or after July 1, 2012, from coverage under the Virginia Workers' Compensation Act if there is jurisdiction under either the Longshore and Harbor Workers' Compensation Act, and its extensions, or the Merchant Marine Act of 1920. Governor McDonnell has not yet signed the bill into law, but is expected to.
The Supreme Court of Virginia has granted the plaintiff’s petition for a writ of appeal in the case of Hale v. Maersk Line, Limited. This is a case in which a Portsmouth, VA jury awarded $20 million dollars in compensatory damages, for failure to pay maintenance and cure, in addition to $5 million dollars in punitive damages. Following the jury’s runaway verdict in the case, the court granted Maersk’s motion to set aside the jury’s verdict, finding there was no rational explanation for the sums awarded, other than jury sympathy in connection the ordeal of rape involved in the case, for which Maersk was not responsible. The court remitted the compensatory damages to $2 million and set aside the award of punitive damages in its entirety. A date for oral argument has not yet been set.
SAVE THE DATE - Signal/LCA Maritime Conference, May 21st to May 23rd, 2012, Longshore Practice in the 21st Century: Enhancing the Maritime Industry’s Vision and Voice through the Pursuit of Educational Excellence. Two days of intriguing topics at The Hyatt Regency Penn’s Landing, Philadelphia, PA. There will be pre-registration on May 21, 2012, followed by a Welcome Reception. There will also be optional shipyard tours for early bird registrants. Check out the conference brochure, faculty, and registration form. One other note of excitement - I’ll be there. ;-D
In March 2012, some 23 years after causing one of the worst tanker spills in U.S. history, the Exxon Valdez has been sold for scrap. This infamous ship and disaster eventually led to the new designs for oil carriers. Renamed the Oriental Nicety, the vessel was sold for about $16 million to Global Marketing Systems Inc., a Maryland-based cash buyer of ships for demolition, by Cosco. In 2007, it was transformed into an ore carrier and has had four different owners and names since the 1989 accident. The Exxon Valdez oil spill (approximately 258,000 barrels), while not the largest in US history, was clearly the most important. It engendered much litigation. Public concern over the spill led directly to enactment of the Oil Pollution Act of 1990 (OPA 90), which mandated double hulls for new tankers, response plans, and a number of other remedial measures.
A petition for certiorari has been filed in the 9th Circuit case of Titan Marine, LLC v. Cape Flattery Limited, Docket No: 11-948. The questions presented to the Court are: (1) Whether the general rule that a contract must be interpreted to fulfill the parties intentions applies with respect to an arbitration agreement when discerning whether the parties intended that foreign law should govern the threshold question whether the dispute is subject to arbitration; and (2) when parties agree to arbitrate “any disputes arising under this Agreement,” whether that restricts arbitration to only those disputes about the “interpretation and performance” of a contract, or it also includes disputes that would not have arisen but for their contract.
EMPLOYEE “NEWLY AWARDED COMPENSATION” WHEN HE BECOMES DISABLED
ROBERTS V. SEA-LAND SERVICES, INC., ET AL.
While working as a gatehouse dispatcher, for Sea-Land Services, Inc., Dana Roberts allegedly slipped on a patch of ice and claimed injuries to his neck and shoulder. Roberts immediately ceased work and sought compensation under the LHWCA. After paying voluntary compensation for over three years to Roberts, Sea-Land and its insurer stopped paying him compensation. Roberts requested a formal hearing and the ALJ found that Roberts was entitled to additional compensation. The ALJ calculated Roberts' average weekly wage at the time of injury and concluded that the applicable maximum rate was the rate that was in effect the year Roberts first became disabled. The Benefits Review Board affirmed the ALJ's decision and his order denying reconsideration. Roberts timely appealed, arguing that the ALJ erred by holding that he was “newly awarded compensation” in fiscal year 2002, when he first became disabled. Instead, Roberts argues that he was not “newly awarded compensation” until the ALJ issued his decision making a formal award of compensation, and that therefore the ALJ should have used a higher national average weekly wage in calculating the maximum rate that governs his compensation for temporary total and permanent partial disability. The appellate court disagreed, finding that §908 uses the terms “award” and “awarded” to refer to an employee's entitlement to compensation under the Act generally, separate and apart from any formal order of compensation. The court observed that, by use of the term “awarded,” Congress could not have meant “assigned by formal order in the course of adjudication,” given that employers are obligated to pay such compensation regardless of whether an employee files an administrative claim. Congress apparently used “awarded compensation” and “entitled to compensation” to mean the same thing. Thus, “awarded” as used in §906 does not mean “assigned by formal order in the course of adjudication.” The appellate court held that, consistent with the meaning of “awarded” in §§908 and 910, “newly awarded compensation” in §906 means “newly entitled to compensation.” The court further noted that to apply the national average weekly wage with respect to a year other than the year the employee first becomes disabled would be to depart from the Act's pattern of basing calculations on the time of injury [see December 2010 Longshore Update]. Roberts filed a petition for certiorari with the U.S. Supreme Court, presenting the following question to the Court: 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. The Supreme Court heard oral argument in the case on January 11, 2012 and issued its opinion on March 20, 2012. In an opinion authored by Justice Sonia Sotomayor, the court held that in order to support an administrable rule "that will result in equal treatment of similarly situated beneficiaries and avoids gamesmanship in the claims process," an employee must be “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to benefits under the Act, no matter whether, or when, a compensation order issues on his behalf. The Court found Roberts’ counter-arguments to be unconvincing. Chief Justice ROBERTS, and Justices SCALIA, KENNEDY, THOMAS, BREYER, ALITO, and KAGAN joined in the opinion. Justice GINSBURG filed an opinion concurring in part and dissenting in part. (USSC, March 20, 2012) 2012 U.S. LEXIS 2318
Updater Note: Thank you, Josh, for straightening out the 5th and 11th Circuits for us. I thought about trying to console you by telling you not to take this as a loss, but to take some satisfaction in the fact that you have made a valued contribution to the maritime industry by straightening out the maritime law of the land. However, having been through this ordeal myself, with our Townsend case, I recognize that there is not a lot of satisfaction to be had in resolving a conflict in the circuits, except perhaps for the Justices of the Supreme Court themselves. But I do get some satisfaction in knowing that my pony-tailed friend is not always right.
I NEVER THOUGHT THAT I WOULD SEE, AN ATTORNEY SO HUNGRY FOR A FEE
SHERMAN V. DEPARTMENT OF ARMY NAF, ET AL.
ALJ Decision; On Reconsideration
Heidi Eberly-Sherman allegedly injured her head and neck, during the course of her employment. The ALJ awarded Sherman medical benefits and various periods of disability benefits. Nearly $60,000 in medical bills remained unpaid after the order issued, and Sherman requested another hearing. The parties agreed to a §8(i) settlement, which was approved by the ALJ administrative law judge. Sherman’s attorney, Chuck Robinowitz, subsequently requested a fee for work performed before the ALJ. After reviewing the fee petition, the ALJ found that counsel failed to establish a normal billing rate or a suitable proxy rate, and he relied on his own experience and knowledge of rates in longshore cases to arrive at a rate of $275 per hour, declining to modify the hourly rate because of the overall lack of complexity of the case and the quality of representation. Absent any evidence supporting the request for $120 per hour for the legal assistant’s work, the ALJ awarded an hourly rate of $110 for this work. Robinowitz appealed this decision, contending the ALJ erred in disregarding the evidence submitted to show market hourly rates and in arbitrarily determining an hourly rate for attorney work. In its initial decision, the Board noted that the ALJ provided a detailed analysis of the evidence proffered by counsel to establish a prevailing market rate. However, because the ALJ exclusively relied on contemporaneous longshore cases to set the hourly rate, the Board vacated the fee award and remanded for further consideration consistent with Christensen and Van Skike. On remand, the ALJ found that an appropriate hourly rate for counsel’s services to be $309 and that an appropriate hourly rate for the legal assistant services performed in this case is $110. Robinowitz filed a motion for reconsideration. The ALJ declined to consider the late submission of the 2009 Small Firm Economic Survey, finding that it failed to provide details on hourly rates in specific practice areas, and denied the motion for reconsideration. The BRB affirmed the ALJ’s award and denied to petition for review. Rabinowitz appealed, arguing the BRB erred in not placing Robinowitz in the top ten percent of his peers and in failing to consider his submission of the 2009 Small Firm Economic Survey when evaluating his fee petition. The appellate court disagreed, holding that the BRB did not err in affirming the ALJ's decision to consider the hourly rates of workers' compensation attorneys in setting Robinowitz's rate. Additionally, the BRB did not err in affirming the ALJ's refusal to place Robinowitz in the top ten percent of his peers, noting the ALJ’s findings that Robinowitz had made "sophomoric," "careless," and "egregious" errors in his representation of Sherman. While the BRB modified that order, it did not set aside the ALJ's findings regarding the quality of Robinowitz's work. Therefore, the appellate court found that substantial evidence supports the ALJ's refusal to place Robinowitz in the top ten percent of his peers. Robinowitz’s petition was denied. (9th Cir, March 7, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 4775
Updater Note: I love the findings of Robinowitz’s representation of his client including "sophomoric," "careless," and "egregious" errors. If Robinowitz keeps exposing himself to publicity like this, he won’t need to worry about his fee awards - he won’t have any more clients.
GET ALL THE LHWCA YOU CAN, AND THEN CLAIM TO BE A SEAMAN (CONT.)
MENDEZ V. ANADARKO PETROLEUM CORPORATION, ET AL.
Grixi Mendez, an Anadarko Petroleum Corp. employee, was allegedly injured while working on a floating oil-production facility located on the outer continental shelf. After his claimed injury, Mendez applied for benefits under the LHWCA. After he had received $61,268 in medical expenses and $133,246 in compensation payments, Mendez sued Anadarko in Texas state court, seeking benefits under the Jones Act. Anadarko removed on the basis that Mendez was not a Jones Act seaman because the platform on which he worked was not a "vessel" for the purposes of that Act. Anadarko then moved for summary judgment on the basis that Mendez has received all the compensation for his injuries he was entitled to under the LHWCA, precluding suit to recover damages for those injuries. Mendez continued to argue that the court should reconsider its earlier decision and find that the platform was a vessel and that he was a Jones Act seaman. The court noted that Mendez continues to receive LHWCA benefits and that Mendez did not dispute that he has received all benefits to which he is entitled under the LHWCA. Holding that the §905(a) exclusivity provision applied, Mendez's motions for reconsideration and remand were denied, and Anadarko's motion for summary judgment was granted [see January 2011 Longshore Update]. Mendez appealed the district court’s order denying his motion to remand and granting summary judgment to Anadarko on his Jones Act claim. The appellate court affirmed the district court’s rulings because the spar upon which Mendez was working when he was allegedly injured was not a Jones Act vessel, meaning there was no possibility that Mendez could establish that he was a seaman for purposes of Jones Act liability. The appellate court noted that it had previously held that a spar, almost identical to the one Mendez was working on, was not a vessel in Fields v. Poole Offshore, 182 F.3d 353 (5th Cir. 1999). Although the spar floats, it is permanently moored by six mooring lines that are attached to 18-foot anchors deeply embedded into the sea floor under 5,000 feet of water. The mooring lines are 78 feet long. Steel flow lines and export pipelines further attach the spar to extraction points in one direction and to an onshore production facility in Louisiana, by way of another platform, in another direction. The spar is permanently affixed to the sea floor and can only be moved after detaching the substantial moorings and pipelines that have been joined to its structure. The relocation study shows that moving the spar would involve detaching all the moorings and severing the pipelines; would take nearly two months; would cost of $42 million; and would require abandoning the mooring system and building a new mooring system at the new site. The relocation study shows at most that the spar is theoretically capable of maritime transportation but not practically capable. The court therefore agreed with the district court’s conclusion. The appellate court affirmed, holding that the district court did not err in refusing to remand the case to state court or in granting summary judgment. (5th Cir, March 26, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 6405
WHAT IS AN ACTUAL FREIGHT UNIT UNDER COGSA
EDSO EXPORTING LP V. ATLANTIC CONTAINER LINE AB, ET AL.
In this unpublished appellate case, Atlantic Container Line AB appealed a district court's grant of partial summary judgment in favor of Edso Exporting LP on the issue of liability for the damage to Edso’s crane while in transit from Baltimore to Tripoli. The district court concluded that the customary freight unit was each cubic meter of the crane. On appeal, ACL argued that the customary freight unit was each item shipped. The US Court of Appeals for the Second Circuit ruled that, under the Carriage of Goods by Sea Act (COGSA), a customary freight unit for purposes of damage calculation is the actual freight unit used by the parties to calculate freight for the shipment at issue. Edso contended that the parties determined the freight based on volume of the crane in cubic meters and that the metric volume should be used as the freight unit. On appeal, the court found that both the bill of lading and the tariff used a lump sum basis calculated on the number of items being shipped. Where the bill of lading and the tariff, when read together, unambiguously establish the actual freight unit, extrinsic evidence of the negotiations is inadmissible. As only one item was damaged, liability under COGSA was limited to $500. The judgment of the district court was reversed. (2nd Cir, March 20, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 5720
PRIVATE STEVEDORE DOES NOT QUALIFY AS POLITICAL SUBDIVISION OF STATE
MOORE V. VIRGINIA INTERNATIONAL TERMINALS, INC., ET AL.
Hugh Britt, Jr. was employed by CP&O, L.L.C., a private stevedore company, to load and unload cargo at Norfolk International Terminals. Britt was operating a yard tractor, also known as a hustler, to assist with the loading and unloading of a vessel in port. A longshoreman employed by Virginia International Terminals, Inc., was operating a straddle carrier to assist with the loading and unloading of another ship. The straddle carrier the VIT employee was operating ran into the side of the container being pulled by the hustler operated by Britt, fatally injuring Britt. Virgil Moore, as administrator of Britt's estate, filed a wrongful death action against VIT and its employee (hereinafter “VIT”), asserting negligence and premises liability claims. VIT filed a plea in bar seeking the dismissal of the action on the basis that the Virginia Port Authority (VPA) serves as the statutory employer of the CP&O and VIT employees loading and unloading vessels at NIT, and, therefore, Moore's claims were barred by the exclusivity provisions of the Virginia Workers' Compensation Act. The circuit court found that the Britt and CP&O were statutory employees of the VPA, a political subdivision of the Commonwealth, and therefore subject to the exclusivity provisions of the Virginia Workers' Compensation Act. The circuit court determined that a contractual relationship existed between CP&O and the VPA based on a schedule of rate. Moore challenged the judgment of the circuit court, arguing that the circuit court erred in determining that Britt and CP&O were statutory employees of the VPA. The appeals court found that the schedule of rate, relied on by the circuit court, was not a contract that created a statutory employer relationship under Va. Code Ann. § 65.2-302(A), and therefore the necessary contractual relationship between CP&O and the VPA did not exist. Accordingly, appellate court concluded that the circuit court erred in determining that the VPA was the statutory employer of CP&O at the time of the accident. The decision of the circuit court was reversed and the matter was remanded for further proceedings. (Virg. Sup. Ct, January 13, 2012) 283 Va. 232; 720 S.E.2d 117; 2012 Va. LEXIS 4
WE AREN’T BOUND BY NO STINK’N LHWCA MEDICAL FEE SCHEDULE
CERES MARINE TERMINALS, ET AL V. ARMSTRONG, ET AL.
Eldon Armstrong, Jr. allegedly suffered a compensable injury by accident, while employed by Ceres Marine Terminals. To treat that injury, a surgeon and his assistant employed by the medical provider performed surgery on Armstrong and submitted a bill to Ceres in the amount of $30,013.75. Ceres paid $5,123.75. In an "Explanation of Benefits" accompanying the payment, Ceres explained that it was paying an amount consistent with the LHWCA Medical Fee Schedule, which Ceres contended was the maximum fee allowable under the LHWCA. The medical provider sent a letter to the Virginia Workers’ Compensation Commission asking the commission to enter an additional award ordering the payment of the balance of the medical bill.
The deputy commissioner found that Ceres "failed to rebut the medical provider's prima facie evidence," i.e., the medical bill, and that the evidence presented by the employer was insufficient to prove the prevailing rate in the community and thereby relieve itself of liability for the unpaid balance of the bill. Accordingly, the deputy entered an award in favor of the medical provider and against the employer for the unpaid balance of the medical bill, $25,664.22. The full commission agreed and affirmed the deputy commissioner. Ceres appealed, arguing the Commission erred in limiting its review to the issue of prevailing rates and in not considering the Longshore Fee Schedule as evidence of the prevailing rate. The state appellate court rejected Ceres arguments, finding that the Commission properly characterized the medical bill as prima facie evidence that the charged fee was consistent with the requirements of the Workers' Compensation Act. In the face of that evidence, the commission properly placed the burden of proving the excessiveness of the amount of the bill on the employer. Further, the commission correctly determined that the mere submission of the amount payable for Armstrong's surgery under the LHWCA Medical Fee Schedule, without more, was insufficient evidence of the prevailing rate in the community. Finally, the commission appropriately limited its review of the amount to whether the amount exceeded the prevailing rate in the community for the treatment. The appellate court concluded that the Commission appropriately determined that Ceres failed to meet its burden of proving that the unpaid balance of the medical bill exceeded the prevailing rate in the community for Armstrong's medical treatment and that the commission appropriately judged the propriety of the bill based only on whether the bill was consistent with the prevailing rate in the community. The appellate court also concluded that Ceres waived its arguments regarding laches and evidence spoliation as a result of its failure to comply with Rule 5A:20(e). The commission's award was affirmed. (Va. App, March 6, 2012) 2012 Va. App. LEXIS 59
Updater Note: Hopefully, with the passage of HB 153 (see above), Longshore employers will no longer have to deal with inane decisions like this one. Rather than even addressing whether the LHWCA Medical Fee Schedule applied to the medical services provided here, the court simply found that, by simply relying on the reimbursement rate set forth in the Longshore fee schedule, the employer “misunderstands” the fundamental nature of what a prevailing rate is. A better finding would be that the appellate court simply misunderstood that the LHWCA medical fee schedule should have been applied, rather than the Virginia state workers’ compensation statute.
INTOXICATED EMPLOYEE MAY CONSTITUTE INTENTIONAL TORT UNDER LHWCA
HOLMES V. PACARINI USA, INC., ET AL.
Maria Holmes was employed by Pacarini USA, Inc. and was performing longshore work in the Port of New Orleans when a fellow employee ran into her with a forklift and pinned her to a load of T-bars. Before he ran into Holmes with the forklift, the driver had been drinking alcoholic beverages and smoking marijuana cigarettes laced with crack. As a result of the incident, Holmes suffered a laceration of the right leg, an avulsion fracture of the mid left foot, and permanent scarring; she also missed five weeks from work. Holmes filed a petition for damages against Pacarini and two of its employees. At the close of discovery, Pacarini filed a motion for summary judgment, arguing argued that Holmes’ tort claims were barred by the exclusive remedy provisions of the LHWCA. The trial court agreed and it granted Pacarini's motion for summary judgment. Holmes appealed, arguing that the LHWCA provides employees an exception allowing her to sue her employer for an intentional act caused by a co-worker and that the co-worker’s action of intentionally imbibing alcohol and illicit drugs which leads to injury was an "intentional act." The appellate court began by acknowledging that, under most circumstances, when a longshoreman is injured while on the job, his employer's liability is limited to compensation benefits under the LHWCA. However, the court went on to note that in Taylor v. Transocean Terminal Operators, Inc., it had recognized an exception to that general rule and held that an intentional tort was not subject to the exclusive remedy provision of the LHWCA. The particular issue of whether the intoxication of a longshoreman falls under the intentional act exception to the LHWCA had never been addressed by the appellate court. The court held that the action intentionally ingesting illegal drugs and alcohol and then getting on a forklift and injuring another employee created a material issue of fact as to whether or not the conduct of the intoxicated employee rises to the level of an intentional tort under the rationale of Taylor. The trial court's granting of Pacarini’s motion for summary judgment was reversed and the matter was remanded to the trial court for further proceedings. (La. App. 4th Cir, March 7, 2012) 2012 La. App. LEXIS 287
COURT CREATES A FORCE MAJEURE EXCEPTION TO THE 10-DAY PAYMENT RULE
KNOX V. MANTECH INTERNATIONAL CORP.
James Knox allegedly injured his back in Afghanistan when the truck he was repairing partially collapsed and fell on him. Returning to the United States he underwent conservative treatment for his back injury, and was paid temporary total disability compensation benefits and participated in a vocational rehabilitation program, and then returned to work. Thereafter, he made a permanent partial disability claim under the Defense Base Act extension of the LHWCA. Knox eventually settled his claim, pursuant to Section 8(i), in the amount of $300,000 in indemnity compensation, $36,000 for accrued and future medical benefits, and $24,000 for attorneys fees. An ALJ approved the settlement and the order was filed by the District Director on Wednesday, January 27, 2011, and on that date the carrier was served. The carrier did not pay the award until twelve (12) days later, primarily because of severe snow conditions which closed the carrier’s office and prevented the adjuster from attending work. As a result of the tardy payment, Knox sought additional compensation (20 percent) pursuant to §914(f). The District Director awarded Mr. Knox an additional award due to the lateness, noting that neither the statute nor regulations make exceptions for the weather. Knox sought to enforce the supplemental order in district court. The court began its analysis by noting that the Third Circuit Court of Appeals had previously acknowledged the "unfair and impractical results", where employers are exposed "through absolutely no-fault of their own to additional liability," but had deferred a remedy to Congress. The court went on to note that approximately 15 years had passed since Sea-landand nothing had happened. The court reasoned that hoping for Congress to act was obviously an unreasonable course of action. Under very limited circumstances presented in the Knox case, the court held that, when an office is closed and traffic accidents are numerous due to ongoing snow conditions, the rigid statutory language must give some leeway. Moreover, the court observed that it would be imprudent to establish a precedent where employers would require employees imperil themselves by requiring them to travel to work on a snowy day to issue a check when the length of delay (two days) and monetary loss is minimal. The district found concluded that the imposition of a $60,000 surcharge was arbitrary and unreasonable and not proportionate to the actual damages sustained. The employer’s motion to dismiss the petition for collection of the supplemental award was granted. (USDC NJ, January 24, 2012) NO.11-4974
Updater Note: As my readers know, I don’t typically review DBA cases. However, I thought this recent bold decision deserved everyone’s attention, as it should be applicable to LHWCA cases as well. It will be interesting to see if an appeal is taken. I suspect there will be one, either because of the amount of the penalty involved or because the Solicitor (oops, I mean the Director) doesn’t want this decision to stand.
LHWCA CLAIM PASSES SUMMARY JUDGMENT MUSTER, JONES ACT DOES NOT
RIVERA V. ARCTIC OCEAN SHIPPING LTD, ET AL.
Ramon Rivera was allegedly injured at sea on a vessel owned by Arctic Ocean Shipping, Ltd. Trireme Vessel Management is the technical ship manager for the vessel. At the time of his alleged injury, Rivera was employed as a ship mechanic for Goltens-New York, Corp., and his primary job responsibility was to overhaul and repair vessel engines. TVM hired Goltens to repair the vessel’s auxiliary engine, which powered the large refrigerators in which the produce carried by the vessel was stored. The engine overhaul was not completed by the time the vessel was set to depart the port, so Rivera and two other Goltens employees departed on board the vessel to complete the job. Rivera was attempting to lift a piston off of a piston rack and move it to a position above the engine for installation, when the ship allegedly rolled in heavy seas, causing the cart to move and both the cart and piston struck him, injuring Rivera’s left knee. Rivera sued under the Jones Act, general maritime law and the LHWCA. The defendants moved for summary judgment, arguing that Rivera could not possible qualify as a Jones Act seaman. Because Rivera had no claim under the Jones Act, the court found that his only claim arose under §905(b) of the LHWCA. Rivera claimed that an employee of the defendants ordered him to move the piston in an unreasonably dangerous manner, even though no other employees were available to assist. The court concluded that this triggered both the duty to intervene and the active control duty. As to the duty to intervene, the court held that a reasonable jury could find that the manner in which Rivera moved the piston was unreasonably dangerous. With respect to the active control duty, the court held that, viewed in the light most favorable to Rivera, the evidence could support a finding that defendant's employee, who had been actively supervising the operation, knew of the risks posed by that operation, but negligently ordered Rivera to lift the piston nonetheless. Goltens's motion for summary judgment was granted. Arctic Ocean’s and TVM’s motion for summary judgment was granted with respect to Rivera's Jones Act Claim and denied with respect to Rivera's LHWCA claim. (USDC EDNY, March 23, 2012, UNPUBLISHED) 2012 U.S. Dist. LEXIS 40287
REMAND DENIED ON FRAUDULENTLY PLED JONES ACT CLAIM
LEBLANC V. AEP ELMWOOD, LLC, ET AL.
Anthony Leblanc was hired by Diamond L Services Inc. and was assigned to be a barge washer at AEP Elmwood LLC’s facility. The barges at issue were afloat and transient while Leblanc was an employee. The barge-cleaning crew members were responsible for removing algae, dirt, grease, and other foreign substances from the barges. Leblanc was part of a three-person cleaning crew, with two other AEP workers, when he claimed to have been injured by being thrown off balance when a hose was turned on without warning, causing him to fall 20 to 25 feet through an open hatch to the barge's deck. Leblanc filed suit in state court, under the Saving to Suitors Clause. AEP removed this case to federal court based on diversity. Leblanc then moved to remand. AEP opposed the motion. Leblanc asserted that his case should be remanded to state court because AEP cannot demonstrate removal was proper. AEP claimed Leblanc had fraudulently joined his direct employer, Diamond L, in an attempt to avoid removal. AEP further asserted that Leblanc was not entitled to coverage under the Jones Act because he was employed as a shore-based barge washer, not a seaman. Therefore, the alleged incident would be governed by the LHWCA. AEP argued that the only relevant claims are against AEP, who is a diverse defendant, the amount in controversy exceeds $75,000, and remand would be improper. Diamond L also argued that Leblanc’s Jones Act causes of action were fraudulently pleaded so that Diamond L could be fraudulently joined in order to defeat diversity jurisdiction. After hearing all the arguments, the court found that the facts surrounding Leblanc’s duties precluded a finding that he was a seaman as required by the Jones Act. He was not a member of the crew of any vessel, would never sail with the barge once his washing duties were completed, and did not sleep or take his meals upon any barge, as members of a vessel's crew typically would. As such, Leblanc failed to demonstrate how his duties contributed to the function of the vessel or how his connection to the vessel was substantial in both its nature and duration. The court recognized that it may deny remand when a Jones Act claim is fraudulently pled or when the plaintiff has no possibility of establishing a Jones Act claim on the merits. Holding that Leblanc could not affirmatively prove that he is a seaman under the Jones Act, the court denied Leblanc’s motion to remand. (USDC EDLA, February 29, 2012) 2012 U.S. Dist. LEXIS 26779
WHY THE LHWCA? HE SOUNDS LIKE A SEAMAN TO ME.
EARLY V. WISE WELL INTERVENTION SERVICES, INC., ET AL
Timothy Early was employed by Wise Well Intervention Services, as a Tool Division Manager, when he allegedly suffered an accident aboard a lift boat owned and operated by Superior Energy Services, but chartered to Harvest Oil and Gas at the time. Early sued multiple defendants, claiming that he sustained severe and permanently disabling injuries to his back, neck, both shoulders and other parts of his body when he was struck by a co-worker who fell off an allegedly defective stair of a coil tubing unit on board the chartered lift boat. Following Early’s alleged injury, Wise Well began voluntary payment of compensation benefits under the LHWCA. In his tort action, Early asserted claims against the multiple defendants under §905(b) of the LHWCA. Harvest and its insurer challenged the applicability of the LHWCA, and argued that should the court find the LHWCA is not the law applicable to Early's tort claim, then Early's claims against Harvest would be precluded pursuant the statutory employer provision contained within the Master Service Agreement between Harvest and Early's employer, Wise Well. Early sought a judgment from the court as to the applicability of certain aspects of the LHWCA to the claims among and between the parties. Early testified in the six months he worked for Wise, he went offshore on six to eight different jobs, he would stay offshore until the job was completed, and his longest job was approximately fourteen days. Early estimated 60 to 75% of his work with Wise was offshore, and he only occasionally did land jobs. With regard to the job Early was performing when allegedly injured, he testified 100% of his work on that job was performed aboard the lift boat. The court noted that the sole issue between the parties, with regard to the applicability of the LHWCA to Early’s claim, was whether Early’s presence on the lift boat on the day of the accident was, or was not, transient or fortuitous. Harvest and its insurer took the position Early’s presence was "fortuitous." Based upon Early’s testimony, the court disagreed, finding instead that Early had carried his burden and shown he performed a "not insubstantial" amount of his work on navigable waters, and his presence on the water at the time of injury was neither transient nor fortuitous. Accordingly, the court found the LHWCA applicable to Early’s tort claims. Early’s motion was granted. (USDC WDLA, March 6, 2012) 2012 U.S. Dist. LEXIS 30545
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #239. 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 . . .
SUPREME COURT OPENS THE COURTHOUSE DOOR FOR CITIZENS TO SUE EPA
SACKETT, ET AL., V. EPA, ET AL.
In this interesting case, the U.S. Supreme Court considered whether Michael and Chantell Sackett had the right to bring a civil action under the Administrative Procedure Act (APA), 5 U.S.C. §500 et seq., to challenge the issuance by the Environmental Protection Agency (EPA) of an administrative compliance order under §309 of the Clean Water Act (CWA), 33 U.S.C. §1319. The Sacketts received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act. The Sacketts sought declarative and injunctive relief in the Federal District Court, contending that the compliance order was “arbitrary [and] capricious” under the APA and deprived them of due process in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject-matter jurisdiction. The Ninth Circuit affirmed, concluding that the Clean Water Act precluded pre-enforcement judicial review of compliance orders and that such preclusion did not violate due process. In a unanimous opinion, authored by Justice Anton Scalia, the Court made it clear that the courts remain open for citizens who believe they are being “strong-armed” by the government to sue the EPA to make an immediate challenge to an EPA order to stop a development that the agency says threatens the nation’s waters. Faced with such an order, the targets of the EPA need not wait until the agency chooses to sue them to enforce the order; they have a right, under the APA, to sue as soon as they receive an order to which they object. More broadly, the ruling enhances citizens’ right generally to pick the time to mount a court challenge to government orders — provided that those orders are in a final form. The Court held the Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order, noting that the EPA’s compliance order had “all the hallmarks of APA finality.” The court also held that the CWA is not a statute that “preclude[s] judicial review” under the APA. The 9th Circuit’s ruling was reversed in a unanimous opinion, with Justices Ginsburg and Alito each filing concurring opinions.
PLAINTIFFS OPEN THE DOOR TO TESTIMONY REGARDING INFLAMMATORY PAST
CLARK V. W & M KRAFT, INC., ET AL.
While working for Consolidated Grain and Barge Company , Charles Clark allegedly suffered injuries after falling off a cylindrical cell tower onto a nearby barge. Consolidated employed outside laborers, such as Clark, to load barges, as well as perform general maintenance and deckhand duties. Prior to the accident, Clark was assigned to replace a broken cable on a twenty-five foot cylindrical cell tower near the dock. To reach the top of the cell tower, Clark first had to board a barge, owned by Ingram Barge Company, and from there climb up the tower. Before climbing the cell tower, Clark put on his body harness and attempted to attach a fall-restraint system. This system, which DB Industries (DBI) manufactures, slipped from Clark's hand before he could fasten it and retracted to the top of the tower. Clark then proceeded to climb the cell tower with no fall-protection system and, at some point, fell and landed on the deck of the Ingram barge. Clark and his wife brought negligence claims against Consolidated, Ingram, DBI, and W&M Kraft, a safety consultant for Consolidated. The Clarks brought suit against his employer, Consolidated, under the Jones Act, for allegedly failing to provide a reasonably safe workplace and proper safety equipment and training. Their claims against DBI alleged that its fall-restraint system was defective due to inadequate warnings and instructions. They alleged that Ingram failed to maintain its barge in a reasonably safe condition. And he sued Kraft for performing deficient safety audits. Following a two-and-a-half week jury trial, the jury returned a verdict finding that the Clarks had not established the facts necessary to recover from Consolidated for negligence under the Jones Act. The jury also found Consolidated twenty percent negligent in causing Clark's injuries, Clark eighty percent contributorily negligent, and DBI, Ingram, and Kraft zero percent negligent. The jury also found that the Clarks incurred nearly eleven million dollars in actual damages, but because the Jones Act did not cover Clark's accident, the Clarks were precluded from recovering any of these damages. The Clarks appealed the court’s final judgment, alleging that the district court erred in admitting a neuropsychiatrist’s testimony which offered opinions that Clark suffered from a twenty percent neuropsychiatric impairment and that one-third of this twenty percent impairment was a result of prior substance abuse and head trauma, not his fall from the cell tower. The expert’s report also contained a number of unflattering facts from Clark's past, including extensive prior alcohol, methamphetamine, cocaine, and marijuana use; a failure to pay child support and termination of his parental rights; numerous arrests for alcohol intoxication, convictions for trafficking methamphetamine, driving while impaired, possession of marijuana, and failure to appear in court; and physical abuse leading to hospitalization. The appellate court found that the district court's method of evaluating the expert’s qualifications was not an abuse of discretion. Nor did the district court abuse its discretion in finding the neuropsychiatrist’s testimony to be based on a reliable foundation. The appellate court also rejected the Clarks' contention that the district court abused its discretion in finding the expert’s testimony relevant to the task at hand. The Clarks argued that his prior substance abuse, physical injury, convictions and jail time, and failure to pay child support had no bearing on the task before the court and should have been excluded because it was irrelevant and used exclusively to inflame the jury. While these facts may not be pertinent to the apportionment of negligence, the appellate court found that they were relevant to the damages calculation. The substance abuse and physical injury testimony, while unfavorable to Clark, was relevant to determining the amount of Clark's impairment attributable to the fall. Additionally, Clark's criminal history and failure to pay child support were relevant to the jury's future-earnings calculation. In fact, the appellate court found that the Clarks opened the door for this testimony when they presented an economics expert's opinion predicting a robust future earning capacity despite Clark's previously spotty employment record. The jury verdict was affirmed. (6th Cir, February 27, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 4169
APPELLATE COURT AFFIRMS UNTIMELINESS OF LIMITATION FILING
IN RE: ENVIRONMENTAL SAFETY & HEALTH CONSULTING SERVICES, INC., ET AL.
Avery Diaz alleged that he was injured while working aboard a "small, unnamed boat" for Team Labor Force, a subcontractor of Environmental, Safety & Health Consulting Services, Inc., assisting in ES&H's clean-up of an oil spill in the Mississippi River near the Port of New Orleans. Diaz filed suit in state court and served ES&H with process in conjunction with that claim. ES&H filed a Limitation of Liability Act action against Diaz, but the district court granted Diaz’s motion to dismiss, treated as a motion for summary judgment, finding the worker's state court petition was sufficient "written notice" under 46 U.S.C. §30511 such that ES&H’s action, filed over 6 months later, was time-barred. ES&H appealed, arguing that because the state court petition did not identify ES&H as the owner of the "small, unnamed boat," and generally referred to acts that might be construed as negligence resulting from ES&H's supervision of Team Labor Force, ES&H did not know that Diaz was asserting a claim against it as a vessel owner. Diaz argued in response that his state-court petition constituted sufficient written notice to ES&H that his claim could be subject to limitation. The appellate court noted that, while the state court petition may not have specifically identified ES&H as the owner of the "small, unnamed boat," it stated the date of injury and averred Diaz was working for a subcontractor of ES&H, was assigned to work in the unnamed boat by ES&H, who directed his work activities, and he was injured while doing so. Considering that ES&H and Team Labor Force had the same management, and that the two entities assigned and directed Diaz’s work on the date of the injury, the appellate court agreed that ES&H should have determined, within 6 months of the state court petition, that it owned the boat on which Diaz worked that day, and that there was a "reasonable possibility" that his claim was subject to limitation. The state-court petition contained enough information to inform ES&H of the vessel both of details of the incident and that ES&H appeared to be responsible for the damage in question. The state court petition was specific enough to inform ES&H of a claim that could be subject to the Limitation of Liability Act, thus, ES&H’s limitation action was untimely. The district court's grant of summary judgment in favor of Diaz was affirmed. (5th Cir, March 5, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 4546
RELEASE IS GOOD, BUT ONLY FOR THE INJURY IT PERTAINED TO (CONT.)
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. 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 [see October 2011 Longshore Update]. Thereafter, the parties entered into a consent judgment covering claims arising out of the Baker’s subsequent alleged incident, which the district court approved. Final judgment was entered and Baker appealed the district court’s ruling that his release was valid, arguing that he only signed the release because he needed the money and was eager to return to work, but that consideration for the release was insufficient to compensate him for his injury and that he was unrepresented at the time of signing. The appellate court rejected these arguments, noting that its precedent makes clear that adequacy of consideration is relevant only with respect to a seaman’s knowing agreement and the nature of the medical and legal advice available. The court concluded that the abundance of the record evidence, most notably Baker’s own deposition testimony, made clear that he fully understood the consequences of the agreement at the time he entered into it. Finding no definite and firm conviction that a mistake has been committed, based upon its review of the evidence, the appellate court affirmed the district court’s determination that Baker executed the release agreement knowingly and voluntarily. The appellate court concluded that no genuine issue of material fact existed with respect to the validity of the agreement. (5th Cir, March 27, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 6238
PATH FROM WORKER INJURY TO EMPLOYER LIABILITY WAS TOO BROKEN
HUFFMAN V. UNION PACIFIC RAILROAD
Harold Huffman worked for the Union Pacific Railroad for nearly 40 years. He alleged that injuries to his knee, diagnosed after his retirement, were partly the result of the railroad’s negligence, in failing to train him on the proper way to walk on uneven surfaces or the safe method of getting on/off moving trains. Huffman claimed that the repetitive physical demands of his work (and not his body mass index of 44.3) resulted in the cumulative trauma injury of knee osteoarthritis. The jury found negligence, causation and awarded $606,000 in damages. The Union Pacific moved for a judgment as a matter of law, arguing there was insufficient evidence on causation, and also for a new trial, arguing the damages were excessive or for a remittitur. The district court denied both motions. Union Pacific appealed, arguing that a judgment as a matter of law should have been granted, because of the absence of evidence of causation, and that the district court erred in its instruction to the jury as to the necessary degree of causation. The appellate court found that the record contained no expert testimony to support a link between Huffman's performance of his work duties in less than ergonomically optimal ways — a result of the railroad's negligence — and the specific knee problem he suffers, which is osteoarthritis. The appellate court went on to discusses the necessity of expert testimony in FELA [ergo Jones Act] cases. While the court acknowledged the rule in the First Circuit, that expert testimony is not needed if the connection between the negligence and the injury is fairly self-evident, it also note that the causes of Huffman’s osteoarthritis were not of that clarity. Evidence that the injury resulted from work conditions is insufficient. It had to result from negligence. It was necessary that the ergonomic risk factors be tied to osteoarthritis of the knees. The appellate court found that no evidence was presented that the osteoarthritis Huffman had was a kind of musculoskeletal disorder that could occur if a railroad negligently failed to inform its trainmen how to perform their tasks. At best, there was evidence that the kind of work trainmen did, if not performed properly, could increase the chances of musculoskeletal disorders. However, the court found that the term “musculoskeletal disorder” too broad a category, and the evidence introduced too general, for jurors to have a basis on which to infer even the minimal degree of causation required. Notwithstanding an emphatic dissent by Judge Dennis, the appellate court reversed the judgment in Huffman’s favor and the case was remanded for entry of a judgment in favor of Union Pacific. (5th Cir, March 13, 2012) 2012 U.S. App. LEXIS 5271
Updater Note: Although this is a FELA case, it is highly relevant to the Jones Act, which incorporates FELA by reference.
THIS IS HOW WE ALLOCATE LIABILITY IN A THREE-SHIP COLLISION CASE
OTAL INVESTMENTS, LTD. V. M.V. TRICOLOR, ET AL.
On a foggy night in the English Channel, three vessels—the M/V Kariba, the M/V Tricolor, and the M/V Clary—came into close proximity of one another. The Kariba altered course to avoid the Clary and, in doing so, struck the Tricolor, causing it to sink. Subsequently, the owners of the Kariba brought an action for exoneration or limitation of liability. The parties filed cross-claims, counter-claims, and third-party claims. After a bench trial in the district court held the Kariba 100% liable for the collision. The owners of Kariba and the owners of the cargo on the Tricolor appealed. The appellate court reversed in part, holding that all three vessels had violated international regulations and were partially responsible for causing the collision, and remanded for the district court to consider the relative culpability of each vessel and the extent to which that culpability caused the collision. In its amended opinion and order, the district court allocated 63% liability to the Kariba, 20% liability to the Clary, and 17% liability to the Tricolor. Among other holdings, the district court did not permit the Clary's owners to limit their liability under the Limitation of Liability Act. All of the ships' interests appealed, arguing that the district court erred in allocating liability. The Clary owners also contend that the district court erred in denying its motion for limitation of liability, and the Clary manager claims that the district court erred by imposing liability upon it. The appellate court affirmed the allocation of liability by the district court in this complex collision case involving three ships. The district court looked first at the relative culpability of each vessel and then considered the relative extent to which the culpability of each vessel caused the collision. The district court then averaged the culpability and the causation percentages for each vessel to arrive at the final allocation of liability. The appellate court found no error in the district court's allocation of liability. However, it found clear error in the district court's determination that the Clary owners were not entitled to limit their liability, because the record did not support the district court's finding that all "lookouts" were paid overtime, and without a factual connection to overtime payments or lack thereof, nothing in the district court's analysis of limitation of liability demonstrated that Clary had the requisite knowledge that lookouts were not being posted. Finally, the appellate court declined to address the Clary manager's argument that its liability is limited because that argument was not raised below. The appellate court affirmed in part, and vacated and remanded in part, for further proceedings. (2nd Cir, March 8, 2012) 2012 U.S. App. LEXIS 4899
KATRINA LITIGATION - THE ONGOING SAGA
IN RE: KATRINA CANAL BREACHES LITIGATION
Plaintiff landowners in this case filed hundreds of lawsuits, many of which were consolidated before the district judge a quo. That court worked with plaintiffs' litigation committees to identify several categories of plaintiffs and individual "bellwether" plaintiffs. This appellate opinion concerned three groups of bellwether plaintiffs, all suing the United States for flood damages. One group went to trial; three of its plaintiffs prevailed on all claims, and four did not. Another group (group 2) was dismissed before trial when the government was found immune due to immunity under the Flood Control Act of 1928, 33 U.S.C. §702, and Federal Tort Claims Act's, 28 U.S.C. §2680(a), discretionary function exception (DFE). The third survived motions to dismiss and is proceeding to trial. The U.S. and group 2 appealed; the government also petitioned for a writ of mandamus to stay the third group's trial pending issuance of this opinion. When creating the Mississippi River Gulf Outlet (MRGO) shipping channel, the U.S. had not utilized "foreshore protection,” leaving it vulnerable to erosion. Immunity attached if installing and maintaining foreshore protection was a flood-control activity regardless of the nature of the overall MRGO project. The appellate court agreed that dredging, not foreshore protection, was used to keep the MRGO navigable, thus, it was not flood-control activity and the failure to use foreshore protection did not provide §702c immunity for the MRGO's role in breaching a levee. The U.S.'s appeal failed. Immunity applied to group 2's claims because the canals at issue were designed to prevent flooding either by creating drainage or by preventing storm surge with levees, and were fully incorporated in the plan approved by Congress: their design and dredging were flood-control activities. The waters that damaged group 2's properties were allegedly released by negligence in flood-control activity. It was shown the U.S. delayed installing foreshore protection based on scientific evidence, not policy, and thus, the DFE was inapplicable to the winning owner's claims. Group 2's claims properly failed because actions taken under the dredge permitting process were discretionary. The judgments were affirmed, although the appellate court provided a minor restatement of immunity under the Flood Control Act of 1928. The appellate court also denied the government's petition for a writ of mandamus to stay the Armstrong trial, leaving each party as they were before this appeal. (5th Cir, March 2, 2012) 2012 U.S. App. LEXIS 4372
Updater Note - I wonder how many Japanese are suing their government over the earthquake and the resulting tsunami?
VESSEL IS A DISTINCT ENTITY RESPONSIBLE FOR ITS OWN DEBTS
WORLD FUEL SERVICES, INC. V. MAGDALENA GREEN B.V.
Green and S.E. Shipping Lines (SESL) entered in a time charter party for the M/V MAGDALENA GREEN. Prior to the creation of the charter party, SESL entered into a general fuel purchase agreement with World Fuel Services, Inc (WFS). Pursuant to this agreement, WFS delivered $167,339.68 worth of fuel to the M/V MAGDALENA GREEN, and later acknowledged payment for the fuel in writing. Notwithstanding this acknowledgment, WFS later filed a verified complaint, in rem, for the arrest of the M/V MAGDALENA GREEN, and the arrest of the ship was then perfected. SESL moved to dismiss/vacate the ship arrest and the district court granted the motion. WFS appealed, arguing that a provision of the general fuel purchase agreement allowed it to apply payments from SESL to accrued contractual interest and fees from older invoices, leaving the invoice for the MAGDALENA outstanding. The appellate court held that WFS had the contractual right to allocate payments when they were made, but it did not have the right to then reallocate those payments in a different manner at a later time. The Federal Maritime Lien Act was premised on the concept that a vessel was a distinct entity, and therefore statutorily liable only for its own debts. As such, the ship could not be held liable for other outstanding debts of the vessel owner. Once the ship's debt was paid, its liability WFS was extinguished. SESL sent WFS a payment for the fuel delivery to the ship, and WFS confirmed the payment was received and the debt was satisfied. WFS therefore no longer had a valid lien on the ship, and the district court correctly granted the motion to dismiss. The judgment of the district court was affirmed. (5th Cir, March 14, 2012,UNPUBLISHED) 2012 U.S. App. LEXIS 5369
TERMINATION OF MAINTENANCE AND CURE MAKES SEAMAN A WARD OF STATE
AGGARAO V. MOL SHIP MANAGEMENT COMPANY, LTD, ET AL.
Potenciano L. Aggarao, Jr., a Filipino seaman, brought suit against MOL Ship Management Company, Ltd. and Nissan Motor Car Carrier Company, Ltd. for damages arising from alleged injuries he sustained aboard an MOL vessel. Aggarao alleged multiple claims against the defendants, including unseaworthiness, maintenance and cure, breach of contract, violation of the Seaman's Wage Act, and negligence under general maritime law and the Jones Act. The district court dismissed the Complaint for improper venue, concluding that Aggarao is contractually obligated to arbitrate his claims in the Philippines. The court contemporaneously denied as moot Aggarao's motion for a preliminary injunction, by which he sought to compel MOL and World Car to provide maintenance and cure in the United States. Aggarao appealed the district court’s outright dismissal of his claim, arguing that the arbitration provision of his employment contract could not serve to divest the district court of jurisdiction over his Seaman's Wage Act claim and, by extension, his other claims for relief. Aggarao also suggested that enforcement of the arbitration and choice of law clauses would contravene the public policy of the U.S. by forcing him to waive his statutory claims under the Jones Act and the Seaman's Wage Act. The appellate court affirmed in part, where the doctrine of equitable estoppel required Aggarao to arbitrate his claims in the Philippines pursuant to an enforceable arbitration agreement; but vacated in part, where the district court was not constrained to dismiss this case, and was not obliged to deny Aggarao’s injunction request as moot when it deemed his claims to be arbitrable. The appellate court found that the 9 U.S.C. §1 exemption did not apply to 9 U.S.C. ch. 2 cases, and the arbitration clause fell within 9 U.S.C. ch. 2, which expressly compelled enforcing such clauses, notwithstanding federal court jurisdiction under 46 U.S.C.§10313 on Seaman's Wage Act claims. But, the district court's jurisdiction was not divested once the claims were subject to arbitration in the Philippines. Due to termination of maintenance and cure, Aggarao had become a ward of a state. On remand, the district court was entitled to apply the hollow-formality test to the injunction request and determine if an arbitral award in Aggarao’s favor in the Philippines would be empty, if maintenance and cure was not restored in the interim. So too, the district court could assess if Aggarao should remain in the U.S. pending arbitration because he was not fit to be repatriated, or for lack of adequate medical care in the Philippines. Regardless of an injunction ruling, the case was to be stayed pending arbitration to ensure Aggarao could later assert his public policy defense based on the prospective waiver doctrine. The district court's judgment that the arbitration clause was enforceable and that Aggarao had to arbitrate his claims in the Philippines was affirmed. But, the dismissal was vacated and the case was remanded for reinstatement, assessment of the injunction request, for entry of a stay pending arbitration, and for such other and further appropriate proceedings. (4th Cir, March 16, 2012) 2012 U.S. App. LEXIS 5525
FALLING DOWN DRUNK WANTS HER BREATH TEST EXCLUDED
RUTLEDGE V. NCL (BAHAMAS), LTD.
Ada Mae Rutledge was aboard a Norwegian Cruise Line (NCL) cruise ship, when she was allegedly injured in a fall as she attempted to enter an elevator. An NCL security officer accompanied Rutledge from the elevator to the ship's infirmary, where her injured arms were immobilized. The security officer testified that Rutledge smelled of alcohol and had glassy eyes, so he requested that she take an alcohol breath test, and she consented. The test was positive. Rutledge's and security officer’s versions of the circumstances surrounding the fall also varied considerably. Rutledge brought a negligence suit against NCL, seeking damages for the cost of repeated surgeries on her shoulders as a result of the fall. Before trial, Rutledge moved in limine to exclude the breath test as unreliable, and the district court denied the motion. After hearing testimony and arguments, the jury found that NCL had not been negligent. Rutledge appealed the final judgment of the trial court, arguing the court erred with respect to several evidentiary rulings in her negligence-based jury trial, specifically the district court's decision to admit the breath test, testimony on the effects of mixing her medications with alcohol, and the admittance of photographs of the elevators where the security officer found Rutledge. Given the breath test device's low error rate in testing and its acceptance in the community as an effective alcohol tester, the appellate court concluded the district court did not abuse its discretion in finding that the device satisfied Daubert's reliability requirements. The evidence showed that Rutledge admitted that she had consumed three glasses of wine, but said she was not intoxicated when she fell. The breath test showed that perhaps she was intoxicated. If nothing else, the breath test's results aided the jury in determining the accuracy of Rutledge's memory of the circumstances surrounding her fall, which were hotly debated at trial. Although Rutledge contended that it was error for the district court to allow NCL to question her about the interaction between her prescription medications and the alcohol she admitted she had consumed, the appellate court held that Rutledge failed to provides any citation nor argument as to why this was error, concluding the issue was considered waived. Finally, the appellate court found that there was competent evidence to support the admission of the photographs of the elevator where Rutledge was found. As Rutledge failed to show any reversible error in the district court's evidentiary decisions the judgment was affirmed. (11th Cir, March 20, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 5766
EN BANC COURT UPHOLDS $1.3 MILLION JURY AWARD OF PUNITIVE DAMAGES
CLAUSEN V. ICICLE SEAFOODS, INC.
Washington Supreme Court Majority Opinion
Dana Clausen allegedly suffered back and neck injuries in a lifting accident aboard an Icicle Seafoods, Inc. fish processing barge. Clausen reportedly attempted to lift a 122 pound piece of sheet metal. Icicle argued at trial that the accident was all Clausen’s fault. However, evidence showed that Icicle had no written lifting policy for its employees. The jury found Clausen 44% at fault for his injury. Icicle also disputed Clausen’s right to maintenance and cure based upon a medical report that showed that Clausen required no further treatment. However, during the course of trial Icicle was ordered to produce a second medical report they had commissioned relating to Clausen’s need for further treatment. The physician had reviewed Clausen’s records had recommended further treatment for Clausen and noted the need for possible surgery in the future. Icicle allegedly ignored this initial report, and subsequently commissioned a second medical report from a different physician indicating that Clausen needed no further treatment. A Washington State King County jury awarded total damages in the amount of $1.6 million dollars to Clausen; $1.3 million dollars of the award was for punitive damages for Icicles’ willful and wanton failure to pay maintenance and cure benefits as required by Federal law. The punitive damage award was one of the first major maritime punitive damage awards in the nation following the United States Supreme Court’s June 2009 decision in Atlantic Soundings v. Townsend [see February 2010 Longshore Update]. After the verdict, Clausen filed a post-trial motion requesting attorney fees. Icicle opposed the fee request by moving for judgment as a matter of law, arguing that under federal maritime law only the jury could award attorney fees. The trial court denied Icicle’s motion, ruling the attorney fees issue was for the court, not the jury; and awarded $387,558.00 in fees and $40,547.57 in costs. Icicle appealed, challenging the amount of the attorney fees award and arguing that under federal maritime law only the jury can award attorney fees as damages, because attorney fees are a form of punitive damages to be found by the jury, and that punitive damages cannot exceed compensatory damages. The appellate court found that attorney fees are compensatory, rather than punitive. The court observed, while the fees may be awarded on the same general basis as punitive damages, that is, only upon a callous and willful finding, that does not make the fees punitive. While the fees are tied to a certain level of culpability, the focus is on compensating the seaman for necessary expenses incurred in litigation, rather than on punishing and deterring the employer. The appellate court further reasoned that allowing a judge to determine and calculate an equitable fees award was consistent with Washington law and made procedural sense. The jury must specifically find callous or willful conduct before a plaintiff qualifies for an attorney fees recovery. Given this, the court concluded it was procedurally impractical to have a jury consider evidence of attorney fees when it had not yet made the necessary finding to award those fees. The attorney fees issue becomes relevant only after a verdict is rendered. The appellate court also found that the record reflected that the trial court properly exercised its discretion in determining the number of hours related to the maintenance and cure claim and the reasonable hourly rate for Clausen’s attorneys, affirming the trial court’s award of attorney fees and costs. Notwithstanding a vigorous dissent, the appellate court also rejected Icicle’s contention that the trial court erred in failing to reduce the judgment by not capping the jury’s $1.3 million punitive damage award, holding that the Exxoncase could not be read as establishing a broad, general rule limiting punitive damage awards. Instead, the appellate court concluded that under federal maritime law, the punitive damages award as determined by the jury, based on the callous or willful and wanton withholding of maintenance and cure, was proper. (Wa. Sup. Ct, March 15, 2012) 2012 Wash. LEXIS 234
APPELLATE COURT REVERSES AWARD OF NON-PECUNIARY DAMAGES
JOHN CRANE, INC. v. HARDICK, ET AL.
Virginia Supreme Court Opinion
Robert Hardick filed suit under general maritime law against John Crane, Inc. (JCI) and 22 other defendants seeking $20 million in compensatory damages and $5 million in punitive damages, alleging that he was exposed to asbestos dust, fibers, and particles contained in products manufactured by JCI, and he contracted mesothelioma as a result of such exposure. Hardick died prior to trial, and his action was revived as a wrongful death action by his widow, in her capacity as executor of his estate. The widow settled or non-suited the claims against all defendants except JCI and proceeded against JCI, the sole remaining defendant. Prior to trial, JCI filed a motion in limine to exclude evidence of nonpecuniary damages, arguing that the widow’s theory of liability depended upon Hardick having significant exposure to asbestos while onboard Navy ships underway on the high seas and in foreign ports, making the widow only entitled to recover damages available under the Death on the High Seas Act ("DOHSA"). JCI further argued that because DOHSA precludes recovery of non-pecuniary damages such as pain and suffering, loss of society/consortium, or punitive damages, the widow recovery under the general maritime law is likewise limited to pecuniary damages. Additionally, JCI argued that Hardick was a seaman. In response, the widow claimed that she was the master of her pleadings, and could pursue recovery either under DOHSA for injuries sustained on the high seas or under general maritime law for injuries sustained in territorial waters. The widow also argued that Hardick was not a seaman, but rather a "nonseafarer" as defined Yamaha Motor Corp. v. Calhoun. The trial court denied JCI's motion to exclude evidence of non-pecuniary damages. JCI also filed a motion in limine to exclude Mrs. Hardick's evidence of the removal of asbestos-containing gaskets, arguing that Hardick's deposition testimony and the deposition testimony of Hardick's former co-workers failed to establish that Hardick ever removed gaskets manufactured by JCI. At a pre-trial hearing, the parties informed the trial court that various motions had been resolved, including the motion to exclude evidence of asbestos exposure resulting from the removal of gaskets. Mrs. Hardick represented that JCI's motion relating to the removal of asbestos-containing gaskets had been "dropped." JCI agreed and withdrew its motion, declaring "it's a jury issue." However, JCI retained the right to move to strike such evidence at the close of Mrs. Hardick's case if the evidence was insufficient to establish that Hardick removed asbestos-containing gaskets manufactured by JCI. The Virginia Supreme Court found that the evidence overwhelmingly demonstrated that Hardick was a shipfitter and a machinery repairman who contributed to the function of the Navy vessels or to the accomplishment of their missions, and had a connection to an identifiable group of vessels in navigation . that was substantial in terms of both its duration and its nature, holding that Hardick was, indeed, a seaman. The Court agreed with JCI’s argument, in its first assignment of error, that the trial court erred by allowing the jury to award non-pecuniary damages for the wrongful death of a Navy sailor, who alleged an 'indivisible' injury from exposure to asbestos that occurred, in part, on the high seas. The Court noted that while the widow made much of the distinction between a wrongful death cause of action under DOHSA and a general maritime law wrongful death cause of action, for the purpose of determining what damages are available, it was irrelevant whether the widow’s claim was brought under DOHSA or under general maritime law, because the Supreme Court has made it clear that, based upon principles of uniformity, non-pecuniary damages are not available in actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law. Accordingly, because the $2 million award for Hardick's pain and suffering and the $1.15 million award for the widow’s loss of society represent non-pecuniary damages, the Court held that the trial court erred by permitting the jury to award the widow these non-pecuniary damages for the wrongful death of Hardick, a seaman. The court also held that JCI waived part of its second assignment of error by failing to include any "argument" or "authorities relating to" the admissibility of the widow’s evidence regarding asbestos exposure from gasket removal. The judgment of the trial court was affirmed in part, reversed in part, and remanded. (Va. Sup. Ct, March 2, 2012) 2012 Va. LEXIS 35
AND A CALIFORNIA ASBESTOS CASE
O'NEIL ET AL. V. CRANE CO. ET AL.
California Supreme Court Opinion
Plaintiffs filed a wrongful death complaint against defendant manufacturers of pumps and valves used in Navy warships. The complaint raised strict liability and negligence claims. The trial court granted defendants' motions for non-suit on all causes of action. The California Court of Appeal, Second Appellate District, Division Five, reversed the trial court's decision. Review was granted. Plaintiffs' decedent was exposed to asbestos released from external insulation and internal gaskets and packing, all of which were made by third parties and added to the pumps and valves post sale. The court held that a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer's product unless the defendant's own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products. Defendants were not strictly liable for decedent's injuries because (a) any design defect in their products was not a legal cause of injury to decedent, and (b) defendants had no duty to warn of risks arising from other manufacturers' products. Decedent was exposed to no asbestos from a product made by defendants. Although internal gaskets and packing originally supplied with defendants' products contained asbestos, none of these original parts remained on board the ship decedent served on when he arrived decades later. Regarding plaintiffs' negligence claims, the court concluded that defendants owed no duty of care to prevent injuries from another manufacturer's product. The decision of the appellate court was reversed, and the case was remanded for entry of a judgment of non-suit in favor of defendants. (Ca. Sup. Ct, January 12, 2012) 2012 Cal. LEXIS 3
MISSISSIPPI QUEEN, IF YOU KNOW WHAT I MEAN
WARMACK V. DIRECT WORKFORCE INC, ET AL.
This case involved the vessel status of the Mississippi Queen, a steam-powered paddlewheel riverboat, that originally carried passengers on leisure cruises, which were eventually discontinued so repairs and renovations could be made. Although the riverboat could have operated on the waterways in time for the 2007 season, her new owner decided to continue the Mississippi Queen's layover for the ongoing renovations. During this time, Dale Warmack was hired to do repair work on the engines of the Mississippi Queen. Warmack was allegedly injured when leaving the Mississippi Queen, after completing the day's shift, when he was hit with a 60-pound bag of folded linens that had been tossed from one of the upper decks. The Mississippi Queen never again carried passengers, and she was eventually sold for scrap in 2010. Warmack filed suit against Direct Workforce, whose employee had tossed the linen bundle, and Ambassadors as the owner of the vessel and alleged a claim under general maritime law. After considering the factual submissions, the trial court concluded that there was no genuine issue of material fact that the Mississippi Queen was a vessel "under construction" and thus not a "vessel" for the purposes of general maritime law. The trial court concluded that Warmack could not satisfy the situs and nexus test for applying general maritime law and granted the motion for partial summary judgment filed by Direct Workforce, Inc. and its insurer. Warmack appealed the trial court's decision finding that general maritime law did not apply to his personal injury lawsuit. On its de novo review of the partial summary judgment, the appellate court concluded that there was a genuine issue of material fact as to whether the Mississippi Queen was a "vessel" and that the resolution of her status as a vessel would be entrusted to the fact-finder after a trial on the merits. The court observed that the Mississippi Queen's vessel status turned on whether her repairs were so extensive that she had lost her vessel status at the time of Warmack's injury. As there was a factual dispute as to the state of repair of the Mississippi Queen at the time of Warmack's injuries, and because the degree of the repairs of a vessel determines whether that ship remains "in navigation," and, in this case, there is not only one reasonable conclusion that may be drawn from these disputed facts, such a determination must be resolved by the fact-finder after a merits' trial. The appellate court further concluded that the test for applying general maritime law was, in this case, dependent upon the resolution of vessel status. Therefore, the appellate court reversed the partial summary judgment declaring that general maritime law did not apply to this case and remanded the case to the district court for further proceedings. (La.App., 4th Cir., February 29, 2012) 2012 La. App. LEXIS 243
NO SPECIAL SOLICITUDE AFFORDED TO MAINTENANCE & CURE CLAIM
DEAN V. THE FISHING COMPANY OF ALASKA, INC., ET AL.
Ian Dean worked aboard a Fishing Company of Alaska (FCA) vessel as a fish processor. According to Dean, who is six feet three inches tall, he was required to worked 16 to 18 hours per day in a confined space with a ceiling height of six feet, requiring him to keep his neck constantly bent. Once on land, Dean sought medical treatment for "numbness and tingling" in his hands and neck pain. The doctor concluded that Dean had possible bilateral carpal tunnel syndrome or cervical radiculopathy. Dean eventually received carpal tunnel release surgery in 2008 and 2009. Dean underwent an independent medical examination at FCA's request to determine whether Dean had a neck injury subject to FCA's maintenance and cure obligation. The physician could find no evidence in the medical records or on objective examination that any of the symptoms, Dean was complaining of, were related to his work aboard the vessel. FCA discontinued payments to Dean for maintenance and cure, basing its decision on the IME report, the lack of evidence connecting Dean's neck symptoms to his work for FCA, and the absence of curative treatment recommendations. Dean sued FCA in state court, seeking compensation under the Jones Act and general maritime law. After filing his lawsuit, Dean immediately moved for a pretrial reinstatement of maintenance and cure. Applying the usual summary judgment standard, the trial court denied Dean's motion because he had failed to show that no genuine issue of material fact existed as to his entitlement to maintenance and cure such that he was entitled to judgment as a matter of law. Dean appealed, arguing that the trial court erred in denying his motion and contending that a more lenient standard should apply given the solicitude courts have traditionally afforded seamen seeking compensation for maritime injuries. While the parties agreed that the dueling doctors in the case created a factual dispute concerning Dean's entitlement to maintenance and cure for his neck complaints, Dean argued that this dispute should not preclude pretrial reinstatement of maintenance and cure because all ambiguities regarding his entitlement to maintenance and cure should be resolved in his favor. The appellate court began its analysis by noting that the issue of whether the usual summary judgment standard applies to a seaman's pretrial motion to reinstate maintenance and cure was a case of first impression for the court. Noting that Dean had elected to pursue his claim in state court, and that state procedural law applied, the appellate court found that a seaman seeking pretrial reinstatement of maintenance and cure has a limited number of procedural mechanisms at his disposal. The trial court resolved Dean's motion under the summary judgment standard, which required the court to deny his motion because a genuine issue of material fact existed regarding Dean's entitlement to maintenance and cure. On appeal, the court found that Dean had failed to suggest a more appropriate procedure under the civil rules, nor did he suggest an alternative procedure below. The appellate court held that the trial court did not err by applying the summary judgment standard to Dean's motion to reinstate maintenance and cure and affirmed the trial court’s judgment. (Wash. App., March 5, 2012) 2012 Wash. App. LEXIS 438
PUNITIVE DAMAGES CLAIM FOR UNSEAWORTHINESS ALLOWED TO PROCEED
IN RE: OSAGE MARINE SERVICES, INC.
Craig Woodfin allegedly sustained injuries to his left foot when it came in contact with a deckfitting on a barge that an Osage Marine Services, Inc. towboat was preparing to switch. Woodfin was employed as a mate on the towboat. Osage filed a limitation of liability action, claiming Woodfin’s injuries were not caused by Osage or its employees, and seeking exoneration or limitation of liability, for any loss, damages, or injury. Woodfin filed an answer and claims, asserting that Osage was negligent, failed to provide maintenance and cure, and operated an unseaworthy vessel Woodfin sought punitive damages on all his claims. Osage moved for judgment on the pleadings, pursuant to FRCP 12(c), with respect to Woodfin’s prayer for punitive damages on his unseaworthiness claim, arguing that the general maritime law does not permit the recovery of punitive damages for claims based on the doctrine of unseaworthiness. Woodfin argued that Miles applies only to wrongful death actions, not to cases involving personal injury and that the other cases cited by Osage, and had been effectively overruled by the recent Supreme Court decision in Atlantic Sounding Co. Inc v. Townsend. Woodfin argued that Atlantic Sounding permits the recovery of punitive damages, unless Congress has enacted legislation stating otherwise. Following the analysis of Atlantic Sounding, the court concluded that punitive damages are available under general maritime law for unseaworthiness claims, noting that the doctrine of unseaworthiness was well established before the passage of the Jones Act. Furthermore, punitive damages were well established as a remedy in general maritime law before the passage of the Jones Act and neither the Jones Act nor any other federal statute has addressed or limited the availability of punitive damages for unseaworthiness claims. Osage’s motion to strike Woodfin’s punitive damage claim for unseaworthiness was denied. (USDC EDMO, March 5, 2012) 2012 U.S. Dist. LEXIS 28483
Updater Note: This case applies the principle of the Supreme Court’s Atlantic Sounding decision to unseaworthiness, pointing out that unseaworthiness is also grounded in general maritime law. This is the first decision, that I am aware of, other than a West Coast district court decision from 2010 (see Wagner v. Kona Blue Water Farms, 2010 U.S. Dist. LEXIS 96105 (D. Hi. 2010), which specifically holds that punitive damages may be awarded in a seaman’s unseaworthiness claim. I suspect that even if the courts allow such causes of action to proceed, it will be difficult for plaintiff’s to meet the willful, wanton, callous, arbitrary and capricious punitive damages standard in an unseaworthiness claim. Nevertheless, such causes of action will certainly be a distraction and a require a jury question that most shipowners would not want a jury to entertain.
HIRE ME SO I CAN SUE YOU - THE NAME IS VAN BLUNK - REMEMBER IT!
VAN BLUNK V. MCALLISTER TOWING OF PHILADELPHIA, INC.
Robert K. Van Blunk was previously employed by Turecamo Coastal and Harbor Towing, Inc. as a deckhand and brought an action for damages under the Jones Act and general maritime law, which he eventually settled for $240,000.00. After settling his claim, Van Blunk immediately resumed his maritime career as a deck hand aboard a ferry for the Delaware River and Bay Authority and brought an action under the Jones Act and the general maritime law, which he settled for $16,000.00. Van Blunk again resumed his maritime career as a tugboat mate, and then captain, for McAllister Towing of Philadelphia, Inc. Van Blunk alleged another injury to his left shoulder, while employed by McAllister, which eventually required surgery. Van Blunk underwent a shoulder surgery on July 7, 2008 and on October 6, 2008, he applied to the U.S. Coast Guard for a renewal of his Merchant Marine License. Van Blunk filed a Jones Act and general maritime law suit and McAllister moved for summary judgment, arguing that the court should judicially estop Van Blunk from claiming that he has a permanent maritime career-ending injury or presenting evidence that is contradictory to information certified by Van Blunk to the U.S. Coast Guard. Van Blunk argued that judicial estoppel should not bar him, because the McAllister had failed to demonstrate that all of the elements of the doctrine of judicial estoppel were satisfied. Unfortunately, the court agreed with Van Blunk, that his statement made in the Turecamo case was not irreconcilably inconsistent with his claims in the current case. The court concluded that there was some ambiguity regarding whether Van Blunk claimed that his injury in the Turecamo litigation was truly permanent. Van Blunk claimed that he was "unable to return to work," not that he would "never again be able to return to work.” Furthermore, Van Blunk claimed that he would be unable to return to work as a "deckhand aboard tugs," not that he would never be able to work again in any maritime position. Therefore, Defendant has failed to strictly satisfy the first element of judicial estoppel with regard to Plaintiff's statements in the Turecamo case. The court also concluded that Van Blunk had not made the statements in bad faith during the Turecamo litigation. Accordingly, the court held that the "extraordinary remedy" of judicial estoppel should not be applied with respect to the Turecamo statements. Turning to the second aspect of McAllister’s motion, the court noted that Van Blunk had certified to the U.S. Coast Guard that, as of October 8, 2008, he had no medical issues that would interfere with his work as a mariner. The court agreed with McAllister that Van Blunk could not now be allowed to make claims inconsistent with his prior certification to the Coast Guard. The court found that, based on Van Blunk’s certified statements to the Coast Guard, any claims for damages beyond the date of October 6, 2008 are specifically contradicted by, and are clearly inconsistent with Van Blunk’s prior certifications. The court also observed that a rebuttable inference of bad faith arises when a plaintiff had knowledge of the claim and a motive to conceal the claim in the face of an affirmative duty to disclose. The court found that Van Blunk certainly had a motive to conceal his pending disability claim against McAllister and that Van Blunk had failed to rebut the inference of bad faith. McAllister’s motion for summary judgment was partially denied as to its request that Van Blunk’s claim be dismissed in its entirety. However, the motion was granted as to McAllister’s request that Van Blunk be estopped from arguing that he was disabled after the date that he submitted his application for re-licensure to the U.S. Coast Guard. (USDC NJ, March 12, 2012) 2012 U.S. Dist. LEXIS 32277
Updater Note: We’ve all seen these scam artists who sue one shipowner after the other, all the while maintaining their U.S. Coast Guard licensure. This is a good case to remember the next time you have a seaman claiming to be permanent and total disability; yet he renewed his license two months after his alleged injury.
DOES YOUR MEDICAL QUESTIONNAIRE PROVIDE THE PROPER WARNING?
HUGHES V. SHAW ENVIRONMENTAL, INC., ET AL
Scott Hughes’ claims against Shaw Environmental, Inc. arise from injuries to his back and neck he allegedly suffered when he slipped and fell, while working for Shaw. After suit was filed, Shaw sought dismissal of Hughes’ claim for maintenance and cure under McCorpen and its progeny, arguing that it should be relieved of any maintenance and cure obligation because Hughes willfully and intentionally concealed back and neck injuries that he had suffered prior to commencing employment with Shaw. In support of its motion, Shaw pointed to a "Post-Hire Medical Questionnaire" completed by Hughes on which he checked "No" to every question, including those inquiring about prior back or neck injuries, despite having received treatment for a number of back and neck injuries prior to his employment with Shaw. In opposing Shaw's motion, Hughes did not disagree that he answered the questionnaire inaccurately. Rather, he contended that there was an issue of material fact as to whether he truly concealed his prior back problems and whether such a concealment was intentional. The court found that, while Shaw had met its burden relative to the first and third elements of the McCorpen test, on the showing made, Shaw's position regarding the second element of McCorpen test — the materiality of the undisclosed facts to the employer's decision to hire the claimant — to be insufficiently supported by competent Rule 56 evidentiary material to warrant a pre-trial summary ruling in its favor. The court went on to note that the questionnaire at issue, while providing "warning" language of possible penalties under Louisiana worker's compensation statutes, it did not state that a misrepresentation will or could result in termination or a change in job duties. Shaw had also failed to provide any evidence of the applicable policies and procedures employed by it when a prior injury or condition is reflected in the questionnaire, including when, for instance, an employee would be required, or allowed, to answer additional questions, provide a prior treating physician's release for work, or perhaps undergo a medical examination to ensure the employee's fitness for the requirements of his job position. The court denied Shaw’s motion for summary judgment on maintenance and cure. (USDC EDLA, March 6, 2012) 2012 U.S. Dist. LEXIS 29139
I WAS HIRED BEFORE MY EMPLOYER SAYS I WAS HIRED
PERALTA V. EPIC DIVING & MARINE SERVICES, LLC
Danilo Peralta was employed with Epic Diving as a Jones Act seaman aboard its vessel, when he allegedly injured his knee. Peralta subsequently filed suit, claiming Jones Act negligence and unseaworthiness as the cause of his alleged injuries. Peralta also maintained that Epic Diving had a duty to provide him with maintenance and cure benefits. Epic Diving moved for partial summary judgment, arguing that it did not owe Peralta maintenance and cure benefits for his alleged knee injury, pursuant to the McCorpen doctrine, because he fraudulently failed to disclose a prior knee injury on his pre-employment medical questionnaire, for which he underwent surgery. Peralta responded that the questionnaire was actually completed several years after he was hired. Accordingly, Peralta argues, Epic Diving cannot establish that it is entitled to a McCorpen defense and he urged the court to deny the motion for partial summary judgment. Peralta provided the court with an affidavit wherein he swore that Epic Diving hired him nearly two years before he completed the medical questionnaire. Assuming, for the purposes of the motion, that Peralta was in fact hired when he said he was, the medical questionnaire could not have been completed as part of the hiring process. Because there was a question of fact, as to when Peralta was actually hired by Epic Diving, the timing of Peralta's hiring vis-à-vis the medical questionnaire, wherein he allegedly concealed information about his previous injury and surgery, was crucial to the resolution of Epic Diving's McCorpen defense, the court denied the motion for partial summary judgment without prejudice to Epic Diving's right to re-urge the matter at trial or in an appropriate post-trial motion. (USDC EDLA, March 16, 2012) 2012 U.S. Dist. LEXIS 35609
IT’S NOT MY JOB TO TIGHTEN SCREWS - I’D RATHER GET HURT AND SUE.
BAZILE V. CHEVRON U.S.A. INC., ET AL.
Larry Bazile filed a seaman’s complaint, alleging he sustained injury when he was working as a galley hand in the employ of Eurest Support Services onboard an oil platform owned by Chevron USA, Inc. Bazile later supplanted his original complaint with an amended complaint, which set forth causes of action under the Outer Continental Shelf Lands Act (OCSLA), the LHWCA and Louisiana law. Bazile contended he was injured when descending his top bunk, claiming a ladder collapsed, causing him to fall backwards into objects in the sleeping quarters. In his deposition, Bazile explained the ladder to the bunk in question had some loose screws on the top, which he reported, but nothing had been done to correct the situation. Despite the alleged loose screws, Bazile had safely traversed the ladder many times before the accident. There were no witnesses to Bazile’s accident. Bazile claimed that while stepping down, missed the step, and the ladder pulled away from the bed. Chevron moved for summary judgment, taking the position the alleged accident was caused solely by Bazile’s failure to place his foot on the step of the ladder. Bazile countered that he would not have fallen if the loose screws in the ladder had not given way when he tried to regain his balance. The court concluded that a genuine dispute of material fact existed regarding the cause of Bazile’s fall. Although Bazile’s failure to place his foot on the proper step of the ladder played a role in the accident, the court found there was also sufficient evidence to let the factfinder at trial decide whether the accident could have been prevented, or its consequences lessened, if the loose screws in the top of the ladder had held. Thus, while comparative fault did appear to be an issue, the court found it would be inappropriate to absolve Chevron from all responsibility, and Chevron's Motion for Summary Judgment on liability was denied. The court did grant partial summary judgment, dismissing Bazile’s punitive damage claim, finding no basis on which Bazile could recover punitive damages by way of Louisiana or federal law under the circumstances in the case.(USDC WDLA, March 15, 2012) 2012 U.S. Dist. LEXIS 36080
NO DUTY TO WARN SEAMAN WHEN COMMON SENSE SHOULD APPLY
IN RE: EDWARD E. GILLEN CO.
Edward Grenier claimed he sustained an injury while on board a vessel owned by Case Foundation Company and operated by employees of Edward E. Gillen Co. On the date of his alleged accident, Grenier was employed by Case as a crane operator, working on board a mobile crane barge, as part of a project installing intake and exhaust pipes for a power plant. Grenier claims he was injured as he was tossed about during inclement weather while riding aboard the Gillen-operated vessel, which was transporting him from shore to the crane barge at the start of his work day. After receiving notice from Grenier that he had allegedly been injured, Gillen filed a limitation action, seeking to exonerate or limit its liability, as owner pro hac vice of the vessel, to the value of the vessel and any pending freight. Grenier filed an answer to the limitation complaint and a "Claim of Damages of Injury," alleging that Gillen was negligent and that Gillen negligence was a proximate cause of his injuries and damages. Grenier also asserted an unseaworthiness claim in his answer. Case also filed an answer to the limitation complaint, as well as a claim against Gillen for contribution and/or indemnification. In the meantime, Grenier filed a separate action against Case, alleging a Jones Act negligence claim, an unseaworthiness claim, and maintenance and cure claims. Case answered the complaint but also filed a third party complaint against Gillen for contribution. Grenier moved to consolidate his action against Case with the Gillen limitation action, and the court granted the motion. Gillen and Case moved for partial summary judgment on Grenier's unseaworthiness claims, which was granted.. Gillen and Case now move for summary judgment on Grenier's remaining claims - his Jones Act claim for negligence against both Case and Gillen Co. and his claim for maintenance and cure against Case. The court began by granting Case's motion for summary judgment as to Grenier's claim for maintenance and cure because Grenier admitted that Case had satisfied its obligations to him under the doctrine of maintenance and cure. Case and Gillen argued they were entitled to summary judgment on Grenier's Jones Act negligence claim because Grenier has come forward with no evidence establishing that Gillen breached its duty to exercise ordinary care for Grenier's safety. Grenier argued that Gillen and Case violated the “12 hour rule" of 46 U.S.C. §8104(h) and this violation establishes negligence per se; and the captain should have warned Grenier of and trained him in preparation for the dangerous lake conditions when the vessel was leaving the dock. The court initially found that the “12-hour rule” and 46 U.S.C. §8104(h) were not applicable as the vessel involved was not a towing vessel. Therefore, the court found Grenier could not establish a necessary element of his negligence per se claim - the existence of a statutory violation - and, as a result, the court did not find the negligence per se doctrine to be a basis for denying summary judgment in favor of Case and Gillen. The court also found that there was no duty to instruct an experienced seaman on matters within common sense, or to remind him of what he already knew or should have known. Case and Gillen offered evidence that Grenier, as a seaman and a regular aboard the crew boat, needed no additional warning under the circumstances because he was fully knowledgeable of the available safe method for being transported on the vessel. Though Grenier may not have been aware of the lake conditions prior to his injury, this does not necessarily mean that his employer breached a duty to him by failing to warn him of the lake conditions - conditions that were well within the operational limit of the crew boat - especially because Grenier knew how to ride the transport boat safely in similar conditions. Accordingly, the court held that Grenier had failed to meet his burden to establish that his injury was caused by any negligence on the part of his employer. The court will granted both Case's and Gillen’s motions for summary judgment. (USDC EDWI, February 28, 2012) 2012 U.S. Dist. LEXIS 25198
NO WRITTEN NOTICE = NO TIME BAR TO LIMITATION ACTION FOR OWNER
IN RE: DOWN SOUTH MARINE, LLC.
David Williams and Terrence Hankton allegedly sustained injuries, while riding aboard a vessel owned by Down South Marine (DSM), as a result of rough weather and/or sea conditions. Williams and Hankton filed a Jones Act personal injury action in state court. DSM was not a party to the state suit; however, in connection with the alleged incident forming the basis for the state claim, DSM filed a limitation of liability action in federal court. DSM commenced the first limitation action after allegedly being put on notice of a demand for a defense and indemnity by Country Boy Environmental Services. Country Boy chartered the vessel from DSM during the time of Williams' and Hankton's alleged injuries and is listed as an additional insured under DSM's marine general liability insurance policy. The court granted Williams and Hankton's motions for summary judgment in the original limitation of liability suit, finding that no real controversy existed between the complainants in limitation. This is the second limitation of liability lawsuit brought by DSM in connection with an alleged incident occurring aboard DSM's vessel, while chartered to Country Boy. Williams and Hankton sought to dismiss the second limitation of liability action based on the argument that it has prescribed under Rule F and is now time barred because it was not filed within six months of DSM learning of Williams and Hankton's alleged accident and/or their third party lawsuits against Country Boy. The court found plaintiffs’ motion unpersuasive, noting that actual knowledge of potential claims is not sufficient under the statute or under Rule F, which both require that a claimant give the owner written notice of a claim. Mere knowledge of the event in question by the owner is not enough to commence the running of the statutory time period. The court therefore found that Williams and Hankton did not issue written notice of any type to DSM until they filed their formal claims in DSM's original limitation action. DSM's filing of the second limitation action was timely under the relevant statute. Plaintiffs’ motion to dismiss the second prayer for exoneration from or limitation of liability was denied. (USDC EDLA, March 5, 2012) 2012 U.S. Dist. LEXIS 28252
JURIST ACCUSES EMPLOYER’S WITNESS OF PERJURY & GIVES MILLIONS TO FAKE
WEBB V. TECO BARGE LINE, INC.
Tyree Webb worked as the chief engineer on board a towing vessel owned and operated by TECO Barge Line, Inc., and was aboard that vessel mere hours before the vessel was struck by Hurricane Katrina, a category 4 hurricane with winds in excess of 145 miles per hour. The tug was not designed, equipped, or intended to protect crew members from the force of a hurricane. Although TECO’s company policy required the vessel master on watch to take action to ensure the safety of crew members and although TECO had previously ordered evacuation of its vessels when a hurricane was imminent, Webb alleged that he was ordered to remain in area for the duration of the hurricane. During that time, the hurricane battered the vessel for at least eight hours and caused significant damage that required, among other things, emergency pumps to be set up in order to avoid sinking of the vessel. During the course of the hurricane, the vessel broke loose from its mooring and was driven by the hurricane onto the land, where it was battered by numerous barges and other objects during the remainder of the storm. The day after the storm finally abated, TECO transported Webb by vehicle to its operations office where he received counseling through TECO’s employee assistance program. Webb eventually brought this action against TECO, pursuant to the Jones Act and general maritime law, claiming that he had suffered psychiatrically because of his experience. Following a bench trial [which could also be classified as an employer lynching], the court found that Webb suffered from permanent post traumatic stress disorder and awarded total damages, including prejudgment interest for his past damages, in the amount of $4,293,271.56, as a direct result of Hurricane Katrina and TECO’s negligence. (USDC SDIL, March 7, 2012) 2012 U.S. Dist. LEXIS 30176
Updater Note: WARNING - Reading this entire decision will make the dark side salivate and those of you with the Force sick to your stomach. It took all my effort just to read it through one time so I could write it up. Now excuse me while I go vomit.
TATTLE TALE SEAMAN ALLOWED TO PROCEED PER SEAMAN’S PROTECTION ACT
GOEBEL V. GUILBEAU MARINE, INC.
This case arose out of an allegedly retaliatory firing of Douglas Goebel, from his position as a boat captain with Guilbeau Marine. Goebel had been with Guilbeau for a little over two years, when he became aware of what he thought were violations of maritime safety laws or regulations by Guilbeau and other personnel; including allegations of illegal dumping of trash and other hazardous substances, and that another captain on the boat was using illegal drugs while on and off duty and was under the influence of marijuana while operating the vessel. Goebel allegedly wanted to unmask the violations, and devised a plan to do so, but things did not go as planned. Goebel sued Guilbeau Marine asserting a cause of action under 46 U.S.C. §2114, the Seaman's Protection Act, alleging that Guilbeau Marine terminated him, and discriminated and retaliated against him because he in good faith made, or was about to make, a report of illegal and unsafe activity. Guilbeau Marine moved for summary judgment, arguing that Goebel had failed to exhaust his administrative remedies prior to filing suit, as required by §2114, and that his claim was prescribed. Goebel argued that he did not have to first exhaust the administrative process adopted by the 2010 amendments to the Seaman's Protection Act because Guilbeau Marine’s conduct that gave rise to his cause of action occurred prior to the passage of the amendments. The court agreed with Goebel, holding that Goebel to exhaust his administrative remedies would amount to the statute being impermissibly retroactive. Finding that the 2010 amendments did not apply to Goebel’s case, the court concluded that he thus had four years within which to bring his claim and he timely filed his complaint in June 2010. Guilbeau Marine’s motion for summary judgment was denied. (USDC EDLA, March 8, 2012) 2012 U.S. Dist. LEXIS 31068
LINE HANDLING IS NO EASY TASK
EASLY V. WATERFRONT SHIPPING COMPANY, LIMITED, ET AL.
Richard Easly contended that he was permanently injured when a heavy line was dropped negligently from the deck of a tanker ship, owned and operated by multiple defendants. By the start of trial, Easly had dismissed his claims against all defendants but one, Fresco Shipping S.A., from whom he sought to recover damages. At the time of his injury, Easly was employed by Foss Maritime Towing Company as chief engineer on board one of Foss’s newer tugs, and was partly responsible for retrieving the lines used to tether the tug to ships. Easly was allegedly injured when a line was dropped from the ship, striking the bow of the tug and bouncing into the water. As a result, a line snapped, landing a blow on the underside of Easly’s left arm. Easly was later diagnosed with left lateral epicondylitis and left medial epicondylitis and eventually underwent multiple corrective surgeries. As a result of the accident, Easly has been allegedly unable to return to his job and was advised to pursue an occupation that does not require him to do more than "light" or "light-medium" lifting. Easly argued that Fresco’s crew acted negligently in dropping the line and that their negligence caused his injuries. In response, Fresco all but conceded the issue of primary negligence, noting only that it had no knowledge of Easly’s injury until suit was filed and thus had difficulty investigating his claim. It argued instead that Easly was partially at fault—that he was standing in an unsafe location and that he failed to let go of the line as early as he could have. The court was not convinced by Fresco’s multiple theories of contributory negligence, finding instead that line retrieval is no easy task. Easly had to watch the line above and make sure that it was placed on deck in a safe manner. He had to make sure that the line in his hands was not on the verge of breaking, and he had to be conscious of the consequences of the line falling overboard and fouling up the tug's engines. Moreover, he had to do all of these things while standing on a rocking deck and attempting to communicate with other sailors. Under these circumstances, the court declined to conclude that Easly was negligent because he failed to assess the situation and react as fast as someone sitting comfortably in a controlled study environment who's only task is to react as quickly as possible. The court found that Fresco's negligence was the sole cause of Easly’s permanent injury and awarded net damages in the amount of $522,120. (USDC WDWA, March 9, 2012) 2012 U.S. Dist. LEXIS 31921
I’M BP’S EMPLOYEE BECAUSE I’VE SWORN TO IT
SMITH V. BP AMERICA, INC., ET AL.
Michael Henry Smith alleged that he was injured while working for BP America, Inc. as part of the clean-up effort following the Deepwater Horizon oil disaster in the Gulf of Mexico. Smith got his job after hearing a stranger at the post office talking about a labor or marine consulting firm hiring for BP, so he went to Marine Contracting Group, LLC, was hired, was trained, and reported for work. Smith was in a boat checking or deploying booms. While trying to pull the boat's anchor up, Smith slipped overboard but immediately got back on board the boat. Smith was fired following this incident. Smith, who proceeded pro se, asserted various claims against BP, including allegations of being injured when he fell. To support his claim that he was a BP employee, Smith proffered his own sworn declaration and a copy of a Master Service Contract between BP and Oil Recovery Co., Inc. (ORC) dated several months after the time of the alleged incident. Smith filed a motion for partial summary judgment seeking a determination that BP was, in fact, his employer. BP disputed the facts that it was Smith's employer and filed a motion seeking summary judgment in its favor on all claims. The court found that the evidence established that Smith was not hired-either directly or indirectly by BP. Instead, Smith was hired by Marine Contracting to work for ORC and was paid by Marine Contracting. ORC was an independent contractor working for BP. There was no evidence introduced that BP had ability to hire or fire ORC employees or that BP supervised or controlled ORC employees. The court also agreed with BP that there was no evidence that it was the owner of the vessel upon which Smith was allegedly injured. Smith’s motion for partial summary judgment was denied and BP’s motion for summary judgment was granted. (USDC SDAL, March 21, 2012) 2012 U.S. Dist. LEXIS 38302
IT’S A GOOD IDEA TO SIGN YOUR CONTRACTS IF YOU WANT THEM ENFORCED
DIDMON V. FRONTIER DRILLING (USA), INC., ET AL.
Steve Didmon filed his personal-injury lawsuit against Frontier Drilling (USA), Inc. and Noble Drilling (U.S.) Inc. in Texas state court. Shortly after Didmon amended his petition the defendants removed the suit to federal court under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. §§ 201-08, based on an arbitration agreement between Didmon and Frontier. The defendants moved to dismiss or, in the alternative, to stay Didmon’s lawsuit in favor of arbitration. Didmon has responded with a motion to remand the matter to state court. Didmon’s employment with Frontier was governed by an Employment Agreement and a separate Alternative Dispute Resolution Agreement (ADR Agreement). Interestingly, Frontier did not sign the ADR Agreement. The signature block contained fields for the employee to fill out and sign but not for the employer. The defendants have moved to dismiss or stay this litigation in favor of arbitration, which they allege is required by the ADR Agreement. The initial question the court addressed was whether Frontier "subscribed" to the ADR Agreement containing the arbitration clause because it prepared the document and used its own letterhead with its logo, without actually signing it. The court concluded that the plain meaning of" subscribe," in the context of the case, required the element of signature. Frontier did not sign the ADR Agreement that contained the arbitration clause. Having the document printed on its letterhead is not signing the document. Because the Employment Agreement specified signatures by both parties for effective amendment, and Frontier did not sign, the Employment Agreement was not validly amended to include the ADR Agreement and its arbitration clause. Because there is no written agreement to arbitrate, the court found the Convention does not require arbitration. The court also rejected the defendants’ equitable estoppel argument, noting that Didmon was not relying on the terms of the ADR Agreement in asserting his tort claims against Frontier. The defendants' motion to dismiss or stay in favor of arbitration was denied and Didmon's motion to remand was granted. (USDC SDTX, March 19, 2012) 2012 U.S. Dist. LEXIS 36952
THOMAS IS ANCIENT LAW - LINDO IS NOW THE LAW OF ARBITRATION
CENTENO V. NCL (BAHAMAS) LTD.
Manor Centavo was employed by NCL (Bahamas) Ltd. as a member of the crew of one of NCL’s cruise vessels. Centavo alleged that while moving a garbage bin in the garbage storage area, he injured his left shoulder. Centavo filed suit, in state court, alleging that his claimed injury was due to NCL’s negligence, the unseaworthiness of its vessel and claiming that NCL failed to provide him with prompt, proper and adequate medical care. NCL removed the case to federal court, pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and moved for enforcement of the arbitration agreement that was part of Centavo’s employment contract. The court found that there was an agreement in writing, this agreement provided for arbitration in countries which are all signatories to the Convention, the agreement arose out of a legal relationship that is considered commercial, and neither Centavo nor NCL were American citizens. The court rejected Centavo’s reliance on Thomas based on the Eleventh Circuit's more recent ruling in Linda. The court also found that compelling arbitration was not barred by the amendments to the Jones Act that incorporate FELA. NCL’s Motion to Dismiss and Compel Arbitration was granted and Centavo’s Motion for Remand was denied. (USDC SDFL, March 23, 2012) 2012 U.S. Dist. LEXIS 39741
GLD&D HITS IT BIG ON DEMURRAGE CLAIM
GREAT LAKES BUSINESS TRUST, ET AL. V. M/T ORANGE SUN, ET AL.
This case dealt with an allision between a stationary dredge, owned by Great Lakes Business Trust, the dredge’s owner, and chartered by Great Lakes Dredge & Dock Co. LLC (hereinafter GLD&D), and the MIT ORANGE SUN, an ocean-going cargo vessel. The later vessel hit the stationary causing extensive damage. The MIT ORANGE SUN, Arctic Reefer Corp.--that vessel's owner, and Atlantic, S.A., the operator and manager, conceded liability and paid between $5 and $6 million to settle the costs of salvage and repair. GLDD, which chartered the dredge, brought this action for consequential damages relating to the period in which the dredge was under repair. The most significant damages claim was that for loss of use. Following a bench trial, the court found each of GLD&D’s fact witnesses credible and the expert testimony offered by GLD&D helpful. On the other hand, the court found the defendants' experts ultimately unhelpful to the determinations that it needed to make. After careful consideration of the reports of both damages experts and their testimony at trial, the court credited the testimony of GLD&D’s expert. The court found that GLD&D was entitled to an award of demurrage damages in the amount of $11,736,643 and prejudgment interest calculated at the rate of 3.66 percent. The court declined to award liquidated damages or overhead. The court concluded that the testimony at trial was unclear as to the reasons why the Army Corps of Engineers might have withheld liquidated damages and whether it would in fact continue to withhold such monies. (USDC SDNY, March 1, 2012) 2012 U.S. Dist. LEXIS 27262
EXERCISE OF JURISDICTION WOULD BE UNREASONABLE
BURNES V. TRINITY MANAGEMENT GROUP, INC., ET AL.
This is a maritime personal injury suit brought by Bobbie Burns brought a maritime personal injury suit, pursuant to the Jones Act, claiming that he was employed by Trinity, B+B Dredging Company and/or Dutra Dredging Company as a Jones Act seaman aboard their dredge, when he allegedly sustained an injury. Burns claimed that Trinity, B&B and Dutra owned and/or controlled the dredge and that all three were liable for his alleged accident, claimed injuries and resulting damages. Trinity filed a motion to dismiss for lack of personal jurisdiction and for improper venue pursuant to FRCP 12(b)(2) and Dutra filed a motion to dismiss for lack of personal jurisdiction pursuant to FRCP 12(b)(2). The incident giving rise to this action occurred during a dredging project in the State of Alabama, and did not occur within the State of Mississippi or its territorial waters. The court initially noted that, as the alleged accident giving rise to the lawsuit occurred outside of the State of Mississippi, the tort provisions of the Mississippi Long Arm Statue were inapplicable, preventing the court from exercising personal jurisdiction over any of the defendants. Nor was there any contract between any of the nonresident defendants and Burns which was to be performed in whole or part in Mississippi. Burns asserted that jurisdiction was appropriate because defendants were doing business and/or performing services in the State of Mississippi, albeit under his due process analysis. However, the court found that the un-refuted evidence showed that any business contacts Trinity or Dutra may have had with the State of Mississippi were de minims at best and appeared to be non-existent. The court also concluded that Burns' due process arguments also failed to establish the requisite contacts necessary to establish the court's authority to exercise jurisdiction over either Dutra or Trinity. The Motions to Dismiss for Lack of Jurisdiction filed on behalf of Dutra and Trinity were granted and Burns complaint against these defendants was dismissed without prejudice. (USDC SDMS, March 8, 2012) 2012 U.S. Dist. LEXIS 31058
Quotes of the Month . . .“A little Madness in the Spring Is wholesome even for the King”--Emily Dickinson
“Truth, like gold, is to be obtained not by its growth, but by washing away from it all that is not gold.”--Leo Tolstoy
“To be persuasive we must be believable; to be believable we must be credible; to be credible we must be truthful.”--Edward R. Murrow
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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