May 2012Notes From Your Updater - On April 6, 2012, Governor Bob McDonnell of Virginia signed into law 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, will end concurrent jurisdiction in the state of Virginia. 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.
On April 16, 2012, the U.S. Supreme Court denied the petition for certiorari in the case of National Maritime Safety Association v. Occupational Safety and Health Administration, et al., Docket No. 11-711. So, for now, it appears as though “the grant of power authorizing the Secretary of Labor to establish legally binding safety standards” shall remain constitutional.
On April 30, 2012, the U.S. Supreme Court denied the petition for certiorari in the case of Cunningham et al. v. Offshore Specialty Fabricators, et al., Docket No. 11-1052. This case involved a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas, which alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Outer Continental Shelf Lands Act (OCSLA).
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
On April 2, 2012, the U.S. Supreme Court denied the petition for certiorari in the 9th Circuit case of Titan Marine, LLC v. Cape Flattery Limited, Docket No: 11-948[see April 2012 Longshore Update for the questions presented to the court].
LONGSHOREMAN UNABLE TO ESTABLISH PRIMA FACIE CASE FOR AILMENT
MCELVAINE V. TRADESMAN INTERNATIONAL INCORPORATED, ET AL.
Jerold M. McElvaine, a shipfitter, alleged that his demyelinating polyneuropathy, was caused by his exposure to harmful dusts while he was detailed to the sandblasting department at Newport News Shipbuilding for three weeks in June and July 2004. McElvaine sought compensation for total disability, as well as medical benefits. In his initial decision, the ALJ found that McElvaine established a prima facie case that his illness was work-related but that Newport News rebutted the Section 20(a) presumption. Upon weighing the relevant evidence, the ALJ found that McElvaine failed to establish that his condition was related to his work. Accordingly, he denied benefits. McElvaine appealed, contending the ALJ erred in finding that Newport News established rebuttal of the Section 20(a) presumption and in his weighing of the evidence as a whole. Newport News cross-appealed, arguing that the ALJ erred in finding that established his prima facie case and in failing to address its objection to the admission of evidence used to establish McElvaine’s prima facie case. The BRB vacated the ALJ’s finding that McElvaine established the working conditions element of his prima facie case and that Newport News established rebuttal of the Section 20(a) presumption, and remanded the case for reconsideration of those issues. On remand, the ALJ found that claimant did not meet his burden of proving the existence of working conditions that could have caused his harm and, therefore, held that McElvaine was not entitled to the Section 20(a) presumption that his demyelinating polyneuropathy was related to his work for Newport News. On further appeal by McElvaine, the BRB affirmed the ALJ’s finding as supported by substantial evidence. McElvaine proceeded pro se to appeal the BRB’s affirmation of the ALJ’s denial of his claim. In a short per curiam opinion, the appellate court’s review of the record disclosed that the BRB’s decision was based upon substantial evidence and was without reversible error. Accordingly, Accordingly, the appellate court denied McElvaine’s petition for review, without hearing oral argument. (4th Cir, April 9, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 7109
I FRAUDULENTLY OBTAINED BENEFITS, BUT YOU CAN’T TAKE THEM AWAY!
UNITED STATES OF AMERICA V. NICHOLSON
Lester Nicholson was indicted for fraudulently obtaining benefits under the Federal Employment Compensation Act ("FECA"). Sometime after he began receiving payments under the FECA, Nicholson began operating a for-profit restaurant, but continued to certify to the Department of Labor that he had not been self-employed or involved in any business enterprise. In a later Department of Labor investigation Nicholson admitted that he had falsified his answers. A grand jury indicted Nicholson for violating 18 U.S.C. §1920, which proscribes the use of false statements and/or fraud to obtain federal workers' compensation. Nicholson pleaded guilty at a plea hearing, during which the district court conducted a colloquy pursuant to Federal Rule of Criminal Procedure 11. Subsequently, Nicholson sought to withdraw his guilty plea, apparently because he received a letter stating that his government benefits would be terminated as a consequence of his conviction. The district court denied his motion to withdraw. It sentenced Nicholson to five years of probation and ordered him to make restitution payments. On appeal, Nicholson contended that the district court failed to follow the mandates of Rule 11 by not advising him that his FECA benefits may be terminated as a result of his guilty plea. He further argued that the district court conducted an insufficient inquiry into how certain pain medication he was taking affected his competence to enter the guilty plea. Finally, Nicholson challenged the district court's denial of his motion to withdraw his guilty plea. The appellate court affirmed all aspects of the district court’s judgment, holding that the loss of government benefits was a collateral consequence of Nicholson’s guilty plea, so the district court was not required to advise him of it pursuant to Rule 11; the district court conducted a sufficient inquiry into Nicholson’s competence to enter a guilty plea; and the district court appropriately denied Nicholson’s motion to withdraw his guilty plea. (4th Cir, April 18, 2012) 2012 U.S. App. LEXIS 7811
Updater Note: Although this is not a Longshore case, I thought it was an important case to share with my readers, because FECA so closely parallels the Longshore workers’ compensation program. It is always gratifying to see a prosecution for fraudulently obtaining those benefits. Don’t forget to send out those LS-200 forms to your long term allegedly disabled claimants.
MEDICARE WON’T DO ITS JOB, SO WE’LL ASK THE COURT TO BLESS A SET ASIDE
FRANK V. GATEWAY INSURANCE COMPANY, ET AL
Warren Frank was injured in a workplace accident while employed by Ranch Supply and was unloading merchandise off of a trailer owned by Terence Coleman Trucking and insured by Gateway Insurance Company. While Frank was standing on the trailer unloading the merchandise, he allegedly fell in a hole on the trailer, causing him physical injuries. Frank later underwent lumbar spinal surgery. Frank filed suit in state court, seeking to recover for the damages he allegedly sustained as a result of the accident. Gateway and Coleman, removed the action to federal court, on the basis of diversity jurisdiction. The claims were eventually settled amicably after lengthy negotiations. All of the issues were resolved, with the exception of the future Medicare Set Aside. Medical information from Frank's treating physicians and pharmacist was accumulated and a Payment Summary Form was prepared by the Medicare Secondary Payer Recovery Contractor (MSPRC). Because the Centers for Medicare and Medicaid Services (CMS) does not currently require or approve Medicare Set Asides when personal injury lawsuits are settled, and does not currently have a policy or procedure in effect for reviewing or providing an opinion regarding the adequacy of the future medical aspect of a liability settlement or recovery of future medical expenses incurred in liability cases, Frank and the defendants filed a Motion for Determination of Need for, and the Amount of Medicare Set Aside for the purpose of complying with the Medicare Secondary Payer Statute, 42 U.S.C. §1395y(b)(2) and accompanying regulations. By letter from an Assistant United States Attorney, the court was advised that the Government would not participate in the hearing. In particular, the letter advised that CMS would neither participate or review the parties’ determination of whether a set aside was needed or the amount of the set-aside. Therefore, after determining that Frank could anticipate $3,200.00 in future Medicare-covered items or services, the court concluded that this amount would adequately protect Medicare's interests. The court ordered that, to the extent that Frank received confirmation from Medicare of any conditional payments made by Medicare for services provided prior to the date of its order, Frank would be required to promptly reimburse Medicare for such conditional payments. The court further ordered a Medicare set aside of $3,200.00 out of the settlement proceeds for payment of future medical items or services, which would otherwise be covered or reimbursable by Medicare, related to what was claimed and released in this lawsuit and that such sum would be deposited into an interest-bearing account for the purpose of paying any future medical items or services that would otherwise be covered or reimbursable by Medicare. (USDC WDLA, March 13, 2012) 2012 U.S. Dist. LEXIS 33581
Updater Note: It seems as though this type of court-ordered set aside is happening more often (see e.g. Smith v. Marine Terminals of Arkansas, et al. (USDC EDAR, August 9, 2011) 2011 U.S. Dist. LEXIS 90428, in the September 2011 Longshore Update). However, I continue to question the necessity of going through this effort, since CMS itself has yet to promulgate regulations with respect to Medicare set asides in tort actions.
YOU NEED TO BRING YOUR DISCRIMINATION CLAIM UNDER THE LHWCA
BAILEY V. GREENWICH TERMINALS, LLC
Raymond Bailey, a union longshoreman for Greenwich Terminals, LLC, allegedly injured his shoulder and upper back while driving a machine at work. Due to this, he stopped working and began receiving LHWCA workers' compensation payments. Over the course of several months, his doctor examined him and placed restrictions on him. Eventually, Bailey was cleared to work by two doctors, but he did not return based on a third doctor's opinion. Because of his refusal to return to work, Bailey was removed from the terminal list, a system for determining which longshoremen received work on a daily basis. Bailey eventually returned to work and took "small jobs." He sued Greenwich Terminals under the Americans with Disabilities Act. The trial granted summary judgment to the terminal operator. The court found that Bailey did not show that Greenwich Terminals’ removing him from the terminal list was pretext for discrimination. Greenwich Terminals argued that Bailey was removed from the terminal list because he did not return to work when he was cleared. Bailey asserted that he did not return to work because he believed his doctor did not clear him to work and that he communicated this to management. The court found his argument "misplaced," explaining that it did not establish that the terminal operator removed him from the list because of his disability. Instead, it explained that the proper venue for resolving the dispute about his medical condition was through his workers' compensation claim. Bailey also argued that he attempted to return to work doing modified-duty assignments, only to get "complaints from the foreman." However, this did not establish pretext because when he was cleared for work, he did not attempt to work in the position Greenwich Terminals offered him as an accommodation. The court explained that Bailey’s arguments did not establish that Greenwich Terminals’ reason for removing him from the terminal list was "so plainly wrong" that it could not have been the real reason. The court granted summary judgment to Greenwich Terminals, holding that the proper venue for resolving a dispute about a worker's medical condition and his ability to return to work is through his workers' compensation claim. (USDC EDPA, January 26, 2012) 2012 U.S. Dist. LEXIS 9306
THERE ARE WAYS TO GET A COMPENSATION ORDER ENFORCED, AND THEN . . .
MINNER V. CROWLEY MARITIME CORP.
Brian Minner initiated his cause of action in district court by filing a two-page, handwritten Complaint and referencing a LHWCA compensation order entered by an ALJ. Minner asked the court to allow his to proceed pro se, as an indigent, and to enforce his compensation order. The court initially took Minner’s complaint under advisement, but informed Minner that he failed to state a cause of action in his Complaint and provided him with an opportunity to amend his Complaint. Minner was also advised that federal district courts have jurisdiction to enforce either supplementary orders issued after an employer's default or compensation orders that have become final under the LHWCA, and the court noted Minner had not attached the order for which he sought enforcement. Although Minner filed a timely amended Complaint, the court found that Minner had still failed to state a claim upon which relief could be granted. Accordingly, Minner’s Motion to Proceed In Forma Pauperis was denied and his case was dismissed. (USDC MDFL, March 21, 2012) 2012 U.S. Dist. LEXIS 54938
LHWCA EXCLUSIVE REMEDY AND LACK OF STATE STATUTE PRECLUDE CLAIMS
SMITH V. XTO OFFSHORE, INC., ET AL.
Rennie Nathaniel Smith, Jr., an employee of Wrights Well Control Services, LLC, was working as an operator on a satellite production platform owned by XTO Offshore, Inc. Smith was allegedly injured while in a work basket that was suspended twenty feet above the deck of the platform. According to Smith, due to a loss of pressure, a set of tongs swung towards him and hit him in the hip/pelvis area. Smith claims he momentarily lost consciousness. Smith was removed from the platform by helicopter and taken to a nearby hospital. Smith filed suit against multiple defendants in state court. XTO removed the case to federal court and then moved to dismiss Smith’s maritime and maritime-related claims on the basis that they arose solely under the Outer Continental Shelf Lands Act (OCSLA). The court dismissed all maritime claims asserted by Smith, who lodged no complaint to the motions for dismissal of the maritime claims, including his claims for punitive damages; nor did Smith request reconsideration of the court’s dismissal of those claims. Instead, Smith filed an Amended Complaint. The defendants moved for dismissal of Smith’s new complaint. XTO claimed that all claims against it should be dismissed because gross negligence is not a recognized cause of action under state law. The court agreed, given that the legislature has not provided for a standard of gross negligence in the applicable statutes, it found no claim properly pleaded against XTO. Wright's argued that Smith’s allegations, including the claim of gross negligence, do not rise to the level required for an employee to maintain an intentional tort claim under the LHWCA and its OCSLA extension, assuming that these claims are allowed under § 905(a). Smith argued that the exclusive remedy provision does not apply to employer intentional torts because the LHWCA's benefit provisions does not address employer intentional torts. The court observed that Smith never alleged that Wright's acted intentionally in either the Complaint or the Amended Complaint. Since all tort claims, short of intentional tort claims, are precluded by the terms of the LHWCA, The court also held that Smith was left without a claim against Wright's. The court granted XTO's motion to dismiss, because "gross negligence" is not recognized by the relevant Louisiana statutes. Additionally, the court granted Wright's' motion to dismiss, because Smith’s claims against his employer are precluded by the LHWCA, and were no allegations of intentional tort against that employer. (USDC EDLA, April 12, 2012) 2012 U.S. Dist. LEXIS 52100
TRAVEL REIMBURSEMENT RATE INCREASED
GSA INCREASES POV MILEAGE REIMBURSEMENT RATE EFFECTIVE 1/1/12
On April 17, 2012, the Office of Government-wide Policy, GSA published a noticethat increases the mileage reimbursement rate for use of a privately owned automobile (POA) on official travel to reflect current costs of operation as determined in a cost study conducted by the General Services Administration (GSA). GSA now posts the POV mileage reimbursement rates, formerly published in 41 CFR Chapter 301, solely on the Internet at www.gsa.gov/ftr. Notices published periodically in the Federal Register and the changes posted on the GSA Web site, now constitute the only notification of revisions to privately owned vehicle reimbursement rates for Federal agencies. For calendar year 2012, the mileage allowance for the cost of operating a privately owned automobile is 55.5 cents per mile. The GSA mileage rate has historically been the putative guideline to determine reasonable medical travel reimbursement under the Longshore Act. However, readers are urged to review the February 2012 Longshore Update for the Internal Revenue Service standard mileage rates to use for 2012 in computing the deductible costs of operating an automobile for business, charitable, medical or moving expense purposes. Beginning Jan. 1, 2012, the standard mileage rates for the use of a car will be 23 cents per mile driven for medical or moving purposes.
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #241. 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 indexthat 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 . . .
ANOTHER FAILED END RUN AROUND LINDO
ARAUZ V. CARNIVAL CORPORATION
Roy David Castillo Arauz, a Panamanian seaman, allegedly suffered an injury while working aboard a Carnival Corporation ship. His employment contract called for all disputes under that contract to be arbitrated in Panama City, Panama under Bahamian law. Despite this provision, Arauz sued Carnival in a Florida state court alleging Jones Act negligence, unseaworthiness, and maintenance and cure causes of action. Carnival timely removed the case to federal court and then moved to compel arbitration. Arauz countered that the arbitration provision was unenforceable under Thomas and moved to remand his case to state court. In response to Arauz's motion to remand, Carnival filed a stipulation, which provided that Carnival would waive its contractual right to the application of foreign law to Arauz’s claims in arbitration and agreed to the application of U.S. law to his Jones Act claim. Arauz rejected the stipulation and argued that Carnival could not unilaterally modify the arbitration provision in his employment contract. The district court disagreed. It found that Carnival's unilateral stipulation eliminated the public policy concerns identified in Thomasand entered an order compelling arbitration. Arauz appealed the district court's order compelling arbitration of his claims, contending that a public policy defense existed at the arbitration-enforcement stage under the Convention and that unconscionability is a standard breach-of-contract defense under the Convention. The appellate court began its analysis by noting that its recent precedent in Lindo, overruling Thomas as clearly violating Bautista and the court’s prior panel precedent rule, post dated the district court’s judgment. Arauz acknowledged that Lindoforeclosed his public policy argument. The appellate court also observed that Bautistaconsidered but rejected the unconscionability argument, unless it can be applied neutrally on an international scale. But since Arauz did not raise this issue before the district court, the appellate court declined to consider the argument. The appellate court affirmed the order compelling arbitration. (11thCir, April 10, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 7116
NEGLIGENT ENTRUSTMENT CLAIM AGAINST SEAMAN’S EMPLOYER FAILS
MAGEE, ET AL. V. G & H TOWING COMPANY, ET AL.
This claim arose from an automobile accident involving one of G&H Towing Company’s employees. William Colson and Joseph Violante were employed by G&H as tugboat quartermasters, who would relieve each other. Because the tugboats did not have a regular route that allowed each man to return to the place he began his shift, the men would loan their personal vehicles to one another to drive home at the end of a shift. As was their custom, Violante borrowed Colson’s vehicle at the end of his shift and drove himself home. Later that night, Violante drove Colson’s vehicle to a bar. After leaving the bar, Violante was involved in a collision that killed Douglas and Lois Magee. Violante was convicted on two counts of failure to yield the right of way and intoxication manslaughter. The Magees’ adult children sued Violante, Colson, G&H Towing, and others connected to the bar, asserting theories of negligence, negligent hiring, and negligent entrustment. The claims against G&H were both direct and vicarious. The Magees asserted that G&H was negligent, through its agent Colson, by entrusting Violante with a vehicle without investigating his driving record. They further contended that Colson had an independent duty to inquire about Violante’s competence as a driver, and that G&H was vicariously liable for Colson’s negligent entrustment of his vehicle to Violante because Colson was acting within the course and scope of his employment with G&H at the time. G&H Towing filed a motion for summary judgment, which the trial court granted, rendering an interlocutory take-nothing summary judgment in G&H’s favor. The trial court later severed the Magees’ claims against G&H, rendering that summary judgment in G&H’s favor a final, appealable order. A summary judgment in favor of Colson was also severed, making a take-nothing summary judgment in favor of Colson final as well. The Magees appealed both summary judgments. The appellate court affirmed Colson’s take-nothing summary judgment, concluding that the trial court correctly determined that there was no evidence of at least one element of the Magees’ negligent-entrustment claim against him because Colson did not have an independent duty to investigate Violante’s competence as a driver. However, the appellate court reversed and remanded the summary judgment favoring G&H Towing, concluding that the trial court erred in rendering a take-nothing summary judgment in favor of G&H because G&H’s motion for summary judgment failed to address the Magees’ claim that G&H was vicariously liable for Colson’s negligent entrustment of his vehicle to Violante. The Texas Supreme Court reversed the appellate court’s judgment, holding that G&H’s failure to address one of Magees’ claims was harmless because that claim was derivative of another claim, against a different party, on which the appellate court affirmed summary judgment and then remanded for consideration of Magees’ other arguments not reached in the appellate court’s earlier opinion. On remand, the appellate court affirm the trial court’s summary judgment in G&H’s favor, holding that G&H did not have a general duty to investigate Violante’s driving record absent other indicators that he may be an unsafe driver. The Magees sought to impose a duty on G&H based on the employee/employer relationship to investigate the driving record of employees who regularly used their own vehicles for the benefit of the company and in furtherance of the company’s business interests. Because the Magees’ negligent entrustment argument against G&H was dependent upon their argument that it had a duty to investigate Violante’s driving record beyond ascertaining that he had a valid driver’s license, and because the appellate court concluded that G&H did not have a general duty to investigate Violante’s driving record absent other indicators that he may be an unsafe driver, the appellate court held that the trial court properly granted summary judgment on the Magees’ direct negligent-entrustment claims against G&H.
Updater Note: Thanks to Ken Engerrand, of Brown, Sims in Houston, for sharing this interesting appellate opinion with me.
APPELLATE COURT INVALIDATES RED LINE RELEASE (CONT.)
RUDOLPH V. D.R.D. TOWING COMPANY LLC, ET AL.
Randy James Rudolph was employed by D.R.D. Towing Company, LLC as a deckhand and crew member. Rudolph’s vessel was struck by another vessel owned and operated by Martin Operating Partnership, L.P. As a result of the collision, Rudolph was allegedly thrown from his bunk and within seconds had to escape his vessel, which was sinking. Rudolph filed suit against both D.R.D. and Martin, making various allegations of negligence and fault against both defendants. D.R.D.'s Answer incorporated an exception of res judicata, asserting that Rudolph had executed a receipt and release settling any and all claims within a few days of the incident made the basis of the suit. Rudolph filed an opposition to the exception and attached his own affidavit, setting out his version of the events surrounding the signing of the release. The district court granted the exception of res judicata from the bench and later provided written reasons for judgment, in which the court found the release was signed by Rudolph with full understanding of his rights. Rudolph appealed. The appellate court did not address the merits of the exception because its review of the record discloses a glaring flaw: Neither party introduced any evidence into the record at hearing of the exception. Although the parties both attached their documentary evidence to their memoranda in support of or in opposition to the exception of res judicata, the documents were not properly before the appellate court for review. Because the party who urges the exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence, the appellate court held that, if there is any doubt as to its applicability, the exception must be overruled. The trial court’s judgment was vacated and the case was remanded for further proceedings [see February 2011 Longshore Update]. On remand, Rudolph filed a supplemental petition naming his wife and a second supplemental petition adding a claim for punitive damages for D.R.D. Towing's failure to satisfy its maintenance and cure obligation. D.R.D. Towing moved to reset its exception of res judicata for hearing, which Rudolph opposed. The exception was heard by the trial court and, finding that Rudolph had knowingly and voluntarily released all of his rights against D.R.D. Towing, the court rendered judgment granting the exception. Rudolph again appealed, arguing that the trial court erred in upholding the validity of the seaman's release, improperly shifted the burden of proof in the case to Rudolph, and granted the exception based upon insufficient evidence. The appellate court focused on the fact that the record clearly indicated that Rudolph was not represented by counsel at the time he executed the release, that he had not obtained legal advice at all, and that D.R.D. was aware of this fact. There was also nothing in the record to show that D.R.D. advised Rudolph of his right to obtain counsel. Further, the record indicated that Rudolph stated that he was experiencing health issues following the accident, that he had an appointment to see a doctor for these issues, and that D.R.D. was aware of this fact as well. The appellate court pointed out that the trial court had inappropriately focused on the fact that Rudolph knew legal and medical advice were available to find that D.R.D. met its burden of proving the release was valid. The appellate court found that this holding ignored well-established jurisprudence regarding the special status of seaman which requires careful scrutiny of a release and a finding that the negotiations were at arm's length and in good faith. After a careful review of the record, the court found that D.R.D. Towing failed to show that they discharged their obligations to Rudolph as articulated by federal and state jurisprudence. The appellate court found that the settlement amount was not adequate. Rudolph was not represented by counsel, and there was no proof presented that he was informed that he was free to hire counsel or to consult an attorney prior to signing the release. The court also found that D.R.D. Towing were aware that Rudolph may have been experiencing medical issues following the accident. The appellate court concluded that Rudolph signed the release without full understanding and knowledge of his rights and a full appreciation of the consequences of the release. The release was held to be invalid and set aside, and the appellate court concluded that the trial court erred in granting D.R.D. Towing’s exception of res judicata. Accordingly, the judgment was reversed and the matter was remanded to the trial court for further proceedings. (La. App. 5th Cir, April 24, 2012) 2012 La. App. LEXIS 547
SEAMAN BEARS NO FAULT FOR GETTING CAUGHT IT THE BIGHT OF A LINE
MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, LLC V. JACKSON
Lorne Jackson sued the appellant, Marquette Transportation Company Gulf-Inland, LLC under the Jones Act for personal injuries he allegedly sustained while employed on one of Marquette's vessels, when his left leg became entangled in the bight of a line. Following a bench trial, the trial court entered judgment in Jackson's favor, awarding him $4,162,176.40 in total damages against Marquette. The trial court's judgment provided that this amount included $1 million for past physical pain and mental anguish, $500,000 for future physical pain and mental anguish, $500,000 for past disfigurement, $500,000 for future disfigurement, $500,000 for past physical impairment, $500,000 for future physical impairment, and $225,000 for future medical expenses. Marquette appealed the judgment, arguing that (1) the evidence and findings of fact did not support the conclusion that Marquette and its pilot were negligent; (2) the evidence conclusively established that Jackson was negligent; and (3) the findings of damages for pain and mental anguish, future medical expenses, physical impairment, and physical disfigurement were not supported by factually sufficient evidence. The appellate court began its analysis by noting that the trial court found that Marquette’s pilot left Jackson alone on the deck of the barge at night so that Jackson was required to free the final mooring line by himself and that other, more-experienced crew members were on board, although they were off duty. The appellate court concluded that these findings were supported by the evidence. Jackson's testimony indicated that it was dark outside at the time of the incident, that he did not understand the task he was asked to perform. The evidence and findings supported a conclusion that the pilot and Marquette were negligent. The evidence supported a conclusion that Jackson suffered an injury in the course of his employment; the officer on duty was negligent in failing to properly warn or instruct Jackson regarding the operation they were performing or in failing to call another crew member to assist Jackson with the unfamiliar maneuver; and this negligence caused Jackson's injury in whole or in part. As to the issue of contributory negligence, Jackson did not dispute that he received ninety minutes of training before beginning work with Marquette, which included a training video and approximately an hour of classroom training, and that he received several weeks of on-the-job training on other vessels before being assigned to the vessel on which his incident occurred. However, Jackson also testified that he was not familiar with the procedure he was performing when the accident occurred and that he was confused about whether he was on the dock or the barge and about whether the vessel was connected to the barge or the dock. The trial court found, and neither party disputed, that Jackson was a "greenhand," or inexperienced seaman. The appellate court concluded from this that some evidence—in particular, Jackson's testimony—supported the trial court's conclusion that Jackson acted reasonably under the circumstances, given his experience, training, and education. Notwithstanding Marquette’s argument that, on day one of his employment, a deckhand has enough training experience to stay clear of a line, the appellate court held that Jackson's testimony about the incident and its surrounding circumstances provided evidence about which reasonable minds could differ in support of the trial court's conclusion that Jackson was not negligent, and, thus, deferred to the trial court's judgment. Finally, after reviewing all the evidence, the appellate court concluded that sufficient, probative evidence existed to support the trial court's conclusion that Jackson suffered past physical pain and mental anguish and that he will suffer physical pain and mental anguish in the future. Given the severe injury, multiple painful surgeries, and Jackson's future prognosis, the record did not indicate that the trial court's award was against the great weight and preponderance of the evidence. The evidence also supported the trial court's determination that Jackson would incur additional medical expenses in the future, and it did not indicate that the trial court abused its discretion in awarding $225,000 for those damages. There was sufficient evidence, beyond the loss of earning capacity, of loss of enjoyment of life, loss of his former lifestyle, and permanent physical impairment, both in the past and in the future. Given these facts, the appellate court concluded that the trial court's award was not contrary to the great weight and preponderance of the evidence. Finally the appellate court held that the evidence was sufficient to support the trial court's award of damages for past and future disfigurement. The trial court’s judgment was affirmed because Marquette failed to show that the judgment was contrary to the overwhelming weight of the evidence. (1stTex. App, April 26, 2012) 2012 Tex. App. LEXIS 3265
YOU’RE LIABLE FOR CAUSING ME TO FALL OUT OF MY BUNK BED - NOT
OLIVER V. WEEKS MARINE, INC.
Patrick Oliver allegedly fell while descending a removable bunk bed ladder aboard a Weeks Marine, Inc. dredge. Oliver was employed by Atlantic Sounding Co., Inc., a wholly owned subsidiary of Weeks. After Oliver deserted the dredge, following his unwitnessed fall and medical finding that he was fit for duty, Atlantic Sounding moved for summary judgment on any maintenance and cure claim Oliver might later assert [see April 2010 Longshore Update]. The court granted Atlantic Sounding’s motion for declaratory judgment, holding that Oliver was not entitled to maintenance and cure related to any alleged injury of the resulting from Oliver’s claimed fall. Oliver later filed this suit, against Weeks, as vessel owner, asserting an unseaworthiness and general maritime negligence action. Weeks Marine filed a motion for partial summary judgment seeking dismissal of Oliver’s claim for negligence brought under the general maritime law, arguing that seaman do not have a claim for negligence under the general maritime law. The court rejected Weeks’ argument, finding instead that Weeks was not Oliver’s Jones Act employer, but a third-party vessel owner. Therefore, the court held that Oliver may bring a claim for negligence under the general maritime law against Weeks, and Weeks’ motion for partial summary judgment was denied [see July 2011 Longshore Update]. The case proceeded to a bench trial, where Oliver claimed that the removable bunk bed ladder was unsafe and rendered the vessel unseaworthy, and that Weeks was negligent in failing to provide him with safe sleeping quarters. After hearing all the testimony, including the opinions of two opposing liability experts, the court concluded that Oliver had not carried his burden of proving that Weeks was liable under the general maritime law of negligence or unseaworthiness. The court found that Weeks had not breached its duty of ordinary care under the circumstances or provided a vessel and equipment that was not reasonably fit for its intended use. Oliver had failed to present any evidence that Weeks knew or had reason to know that the ladder was not reasonably fit for its intended use. Oliver admitted that he used the ladder 107 times prior to the accident without any issues. Oliver also admitted that he did not check to ensure the ladder was properly affixed before using it and could not explain what happened. Weeks liability expert, Captain David Scruton, testified that the type of ladder in question is common in the maritime industry and that there was nothing defective about the particular ladder involved in the accident. Further, the court noted that provisions in the Weeks’ safety handbook and the United States Army Corps of Engineers Manual pertaining to ladders were not specifically applicable to bunk bed ladders. Holding that Oliver had failed to establish either negligence or unseaworthiness under the general maritime law, the court granted judgment in Weeks’ favor and dismissed Oliver’s claims with prejudice. (USDC EDLA, April 4, 2012) 2012 U.S. Dist. LEXIS 47426
Updater Note: Thanks to Matt Popp, of Waits Emmett & Popp in New Orleans, for another stellar litigation victory. Oliver had incurred over $104,000 in medical expenses for a completely unnecessary two level spinal fusion following his alleged fall. Weeks will now proceed to collect all of its trial costs from Mr. Oliver, after responding to a final 6-figure settlement demand with a $25,000 Rule 68 Offer of Judgment.
COURT REFUSES TO ENTERTAIN SHIPOWNER’S DJ ACTION
INGRAM BARGE COMPANY V. CAMP
David M Camp worked for Ingram Barge Company as a deckhand or mate on various vessels. Camp allegedly fell while descending a ladder that reached from a higher floating barge to a lower floating barge. Because of Camp’s allegations of intense pain, Ingram flew Camp to a hospital ER for treatment. Camp was released from the hospital approximately five hours later with no findings of injury. Although Camp stated he was pain free upon discharge, Ingram excused Camp from work for three days. Subsequent to his hospital discharge, Camp did not return to work and has continued to seek medical attention and complain of pain. Ingram began to make maintenance and cure payments to Camp but, eventually, began to doubt the veracity of Camp's medical condition. Ingram attempted to investigate further, but Camp failed to cooperate with Ingram’s investigation. Ingram sought declaratory judgment declaring it had no obligation to pay maintenance and cure or medical benefits on behalf of Camp, including injunctive relief prohibiting Camp or his medical providers from submitting further requests for payment, an order requiring Camp to repay Ingram for sums previously submitted to medical providers, and an award of damages, including attorney's fees and costs for instituting its declaratory judgment action. After Ingram filed its Complaint, Camp filed suit in state court under the Jones Act and general maritime law. Camp petitioned the court to dismiss Ingram’s claims because the complaint was filed in anticipation of Camp’s separate lawsuit against Ingram under the Jones Act and general maritime law, and that Ingram’s declaratory judgment action was merely an attempt at forum shopping. The court weighed that five-factor test to determine whether it should exercise jurisdiction over Ingram’s declaratory judgment action, finding that the more convenient forum for both parties is likely where Camp’s state court action was venued. Because three of the factors were neutral and two favored dismissal, the court declined to exercise jurisdiction over Ingram’s request for declaratory relief and granted Camp’s motion to dismiss the case. (USDC EDLA, April 12, 2012) 2012 U.S. Dist. LEXIS 52471
I’LL DENY SUMMARY JUDGMENT, BUT YOU DON’T HAVE MUCH OF A CASE
WHITE V. FLORIDA MARINE TRANSPORTERS, INC.
Tammie White was Captain of a pusher towboat owned and operated by Florida Marine Transportation, Inc. White was involved in the loading and transporting of vacuum gas oil upon bulk liquid barges and claimed that during this time, he was allegedly exposed to H2S gas, a highly toxic gas listed as a dangerous substance under OSHA regulations. White claims he continues to suffer from headaches, blurred vision, dizziness, ringing of the ears, and total deafness in his right ear, the latter of which causes him to lose his balance. White filed suit against Florida Marine alleging Jones Act negligence and general maritime law causes o action, including maintenance and cure. Florida Marine filed a Answer, denying liability for White's alleged injuries and sought partial summary judgment dismissing Smith’s claims for Jones Act negligence and unseaworthiness, claiming that White could not prove that he was exposed to H2S as required by law to survive summary judgment. Florida Marine cited in support, deposition testimony from White’s crew members who were present at the time of his alleged exposure and readings from gas monitoring devices at the site. Florida Marine acknowledged that White left his position after falling ill, but argued that White had not set forth any evidence that this illness was caused by H2S exposure while on the vessel. In response, White argued that summary judgment was inappropriate because there existed evidence of H2S exposure. Based upon its review of the evidence, the court found that the expert report of one of White’s experts was the sole basis to create genuine issues of material fact as to whether White was exposed to H2S. No other expert opined that White was exposed to H2S or his symptoms were indicative of H2S exposure, aside from noting the patient's own history. Further, there existed no other evidence demonstrating White was exposed to H2S; rather, the evidence showed that the H2S sources were monitored, no H2S was released during loading, the cargo did not release H2S in the barges, and no one else on the vessel was exposed to H2S. The court noted that While had failed to submit evidence as to how H2S became present in the vessel, only offering conjecture and speculation. Finally, the court acknowledged Florida Marine’s argument that White’s expert report was unreliable, but held that summary judgment was not a proper vehicle for the court to make credibility determinations. Florida Marine’s motion for partial summary judgment was denied. (USDC EDLA, April 24, 2012) 2012 U.S. Dist. LEXIS 57736
SEAMAN TRIES TO BOOTSTRAP HIS DRUG USE TO INVOKE PENNSYLVANIA RULE
MARTIN V. SMAC FISHERIES, LLC
Timothy D. Martin filed a seaman’s Complaint seeking damages stemming from injuries allegedly sustained while tying a fishing vessel to a dock, claiming the injuries were caused due to unsafe deck conditions. After SMAC Fisheries filed its Answer to Martin’s Complaint, Martin moved for partial summary judgment disputing the existence of an unseaworthy condition and the applicability of the PennsylvaniaRule. Martin argued that oil and other slippery substances on the deck of the fishing vessel constituted an unseaworthy condition and that, under maritime law, the Pennsylvania Rule applied to the facts of his case. Specifically, Martin argued that undisputed violations of safety regulations pertaining to marijuana use and required post-accident drug testing, a presumption existed as to SMAC’s fault with the burden on SMAC that its fault could not have been the cause of Martin’s losses, and constituted a bar to any assertion of comparative negligence. The court denied the motion, holding that Martin had failed to show that there were no issues of material fact regarding the existence of oil and/or other slippery substances on the back deck in the location of Martin’s injury. SMAC showed that the deck was cleaned at some point and the depositions failed to resolve the issue of whether the deck was thoroughly cleaned prior to the Martin’s injury. Turning to Martin’s Pennsylvania Rule argument, the court noted that Martin argues that there were two safety regulations violated by the SMAC which make the PennsylvaniaRule applicable: (1) the violation of "the laws making marijuana possession/use illegal and the Coast Guard zero tolerance drug regulations;" and (2) SMAC’s failure to conduct mandatory post-injury drug testing. Out of the five regulations which were allegedly violated by the possession and/or use of marijuana aboard the vessel, the court found nothing dealing with the Coast Guard's alleged "zero tolerance drug regulations." Instead, the only statute found by the court referred only to possession with intent to distribute and prevention of the trafficking of drugs. Title 46 does not punish mere possession. Another section did not speak of possession, rather operating a vessel while under the influence. The testimony given during the depositions did not conclusively show the Martin was using marijuana prior to his injury, therefore, it was not undisputed that Martin was under the influence at the time of his injury. Because there is an issue as to the material fact of whether Martin was under the influence at the time of the injury, the court concluded that there was not sufficient evidence to find that there was a violation of 33 CFR Part 95. Additionally, while it was undisputed that no drug testing occurred after Martin was allegedly was injured, Martin did not seek medical attention for several days. Additionally, he continued to perform some duties on the vessel. The court concluded that there existed an issue of material fact as to whether the delay in seeking medical attention effects the qualification of the injury under § 4.05-1 as a serious marine incident and whether Martin was rendered unfit to perform his routine duties as he continued to do some work. The court expressed concern over the fact that Martin was attempting to bootstrap his own drug possession violation to force the shifting of liability to SMAC without first proving any causal connection. SMAC vigorously disputed this interpretation of the application of the Pennsylvania Rule and argued that the court must find a causal connection between the violation and the harm alleged prior to applying the Rule. The magistrate found that Martin had failed to make a threshold casual connection showing necessary to justify such a finding on summary judgment. The magistrate recommended that Martin’s motion for partial summary judgment be denied on all issues (USDC AK, March 1, 2012) 2012 U.S. Dist. LEXIS 57553. Martin filed objections to the magistrate’s recommendation, to which SMAC replied. After reviewing the parties’ papers, the district judge concluded that the magistrate judge had correctly found the facts and applied the law with one possible exception, which did not alter the outcome. The district judge found it unnecessary to decide whether the application of the Pennsylvania Rule was proper in non-collision cases involving a crewman's injury. The court concluded that even if the rule does apply in such cases, there are material facts which preclude it from being applied at the summary judgment stage. The magistrate’s recommended findings and conclusions, except to the extent he may have indicated that the PennsylvaniaRule definitely does apply in non-collision cases, were affirmed. (USDC AK, April 23, 2012) 2012 U.S. Dist. LEXIS 57375
TUG FORGIVEN FOR ONE-TIME MISTAKE AND ALLOWED TO LIMIT LIABILITY
IN RE: MCALLISTER TOWING OF VIRGINIA, INC., ET AL.
On July 13, 2010, a McAllister Towing of Virginia, Inc. tug and her tow passed over a U.S. Navy Degaussing Range and, the tug’s tow wire snagged an unknown object located on the seabed and dragged it through the Range's cables, thereby causing substantial damage to many cables and sensors. The United States calculated its damages to repair the Degaussing Range to its condition before the July 13, 2010 incident to be $3,506,506.80. McAllister brought an action, as the owner and operator of the tug, for exoneration from or limitation of liability pursuant to the Limitation of Liability Act and moved the court to enter an order determining that McAllister was not liable to any extent for the damage to the Navy's Degaussing Range or, alternatively, if found liable for the damage, then such damage be limited to the value of its tug, which was stipulated to be $2,520,000.00 on the date of the incident. Following a bench trial and review of the parties’ post trial briefs, the court found that the tug’s crew was negligent in quickly releasing at least 1,300 feet of tow wire as the tug approached the Degaussing Range and that this lengthening of the tow wire was the sole proximate cause of the damage to the Degaussing Range. Applying the Oregon presumption, the McAllister tug was presumed to be negligent as a moving vessel which allided with the Degaussing Range, a stationary object of which the tug crew was aware. The court also found that McAllister failed to rebut the presumption of fault. Even in the absence of the Oregon presumption of fault, the court found that the tug was negligent when it caused the damage to the Degaussing Range, as it was foreseeable that lengthening an excess of steel tow wire in a cable area could result in damage to cables if that wire drops to the seabed, either by the wire damaging the cables directly or by the wire dragging debris through the cable area, and the tug crew breached its duty of care. Having found the tug crew negligent, the court turned to the issue of whether McAllister had privity or knowledge of this negligence which prevented a limitation of its liability. The United States contended that McAllister should not be able to limit its liability because McAllister provided no written guidance to its captains or crew members regarding the proper procedures for lengthening tow wire. However, the court found that the preponderance of evidence at trial showed that the tug crew were clearly competent the credible evidence indicated that McAllister's failure to provide written instructions on the proper procedures for lengthening tow wire did not amount to negligence on the part of the ship owner to warrant a denial of limitation of liability under the Limitation Act. Therefore, the court concluded that the one-time error on the part of the tug captain and his crew did not warrant a denial of limitation of liability for McAllister. Therefore, the court denied McAllister's claim for exoneration from liability, but granted McAllister's claim for limitation of liability, awarding the United States damages in the amount of $2,520,000.00 and prejudgment interest. (USDC EDVA, April 3, 2012) 2012 U.S. Dist. LEXIS 47776
LET’S COMPROMISE ON THIS JURY ISSUE IN THE NAME OF JUDICIAL ECONOMY
IN RE: MORAN TOWING CORPORATION
Deckhand Ricardo Young, an employee of Moran Towing Corporation, was ordered to tighten the tow lines by the mate on the tug Young was assigned to. During the line tightening procedure, Young became caught between the starboard tow line and capstan, causing his death. There were no witnesses to the event. Moran subsequently filed a Petition for Exoneration from or Limitation of Liability, pursuant to 46 U.S.C. §§ 30501 et seq. Avril Young, as administrator of the Estate of Young, filed an Answer admitting that the case was within this court's admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333(1), Rule 9(h) of the Federal Rules of Civil Procedure and Rule F of the Admiralty Rules, and demanded a trial by jury. On that same date, Young filed a claim under the Jones Act and general maritime law on behalf of the Estate and on behalf of the decedent's minor son. Moran moved to strike the demand for a jury trial on any issues pertaining to exoneration from or limitation of liability and for an order directing the court to decide all issues pertaining to exoneration from or limitation of liability. Young cross-moved to empanel a jury to hear and render a verdict as to her claims under the Jones Act and general maritime law. The parties agreed that Young is entitled to a jury to determine her Jones Act claim. However, Young also sought to have a jury render an advisory opinion on all issues pertaining to exoneration or limitation, which Moran opposed. The court found that there is no right to a jury in the trial of the Limitation of Liability action, but noted that Young was entitled to have the issues in the Jones Act action tried before a jury. The parties agreed that one evidentiary presentation would be in the interests of the parties and judicial economy. The court ordered that a jury would return a Special Verdict with respect to the Jones Act issues and the court would determine the facts and conclusions necessary to the Limitation of Liability action. In the event that any evidence is presented that would be exclusively relevant to the Limitation of Liability action, it will be taken in the absence of the jury. If the Special Verdict is rendered prior to the court's determination of the Limitation of Liability action, it would be considered advisory as to any common issues. In the event that the Limitation of Liability action is determined prior to the return of the Special Verdict that determination may, or may not, require further instructions to the jury. (USDC SDNY, April 13, 2012) 2012 U.S. Dist. LEXIS 52589
BARBIER ADDS PRE AND POST-ACCIDENT WORK TIME TO GET TO 30% GUIDELINE
HAMMETT V. SODEXHO, INC., ET AL.
Robert Hammett was employed by SODEXHO Remote Sites Partnership, as a cook, when he struck his hand with a meat cleaver while cutting chicken in the galley of a semi-submersible offshore drilling unit owned and operated by Seadrill Americas, Inc. SODEXHO was an independent contractor that provided catering and bedroom services to Seadrill. SODEXHO, which does not own or charter any vessels, assigned Hammett to Seadrill's drilling unit. Hammett reported directly to the SODEXHO "camp boss," and Seadrill did not direct or supervise the details of Hammett's work. Following his injury, Hammett filed an admiralty suit against SODEXHO and Seadrill, seeking relief under the Jones Act and general maritime law. The defendants moved for summary judgment, seeking dismissal of Hammett's claims, arguing that Hammett's claims under the Jones Act and for maintenance and cure should be dismissed. SODEXHO argued that Hammett is not a seaman, as a matter of law. It avers that because Hammett was an offshore cook assigned to a variety of platforms and vessels on a call-out basis, he was not more or less permanently assigned to an identifiable fleet of vessels and therefore is not a seaman. During his employment with SODEXHO, Hammett was assigned to various fixed platforms and vessels that were not under common ownership or control. SODEXHO alleged that Hammett spent only 13% of his time employed by SODEXHO on Seadrill's drilling unit. Therefore, SODEXHO argued that Hammett is not a seaman because he lacked the necessary connection to a vessel or an identifiable fleet of vessels under common ownership or control of his employer. Hammett argued that he is a seaman and, alternatively argued that if he is not a seaman, SODEXHO was in violation of the LHWCA, because SODEXHO did not submit notice of injury to the deputy commissioner and did not pay any LHWCA benefits to Hammett. Seadrill argued for the dismissal of Hammett's claims under the Jones Act and for maintenance and cure by arguing that Seadrill is not Hammett's employer, because it maintained no operational control over Hammett's activities. Seadrill also argues that Hammett's general maritime law negligence claim against it should be dismissed, because it is not liable for the actions or inactions of its independent contractor, SODEXHO. Accepting Hammett's alleged SODEXHO start date for summary judgment purposes, his injury aboard Seadrill's drilling unit occurred about 26 months later. The court concluded that there was a genuine issue of fact regarding whether Hammett had a substantial connection to Seadrill's drilling unit, by counting Hammett’s pre-injury and post-injury time aboard the drilling unit, meaning that the record evidence suggested he spent just under 30% of his employment with SODEXHO aboard Seadrill's drilling unit. The court found that the fact that Hammett continued working on the drilling unit after his accident created a factual issue concerning the permanency of his assignment to that vessel, and given that the discovery deadline had not expired, additional facts bearing on the nature of this work assignment could be uncovered. The court also found that summary judgment was not appropriate on any negligence claim asserted against Seadrill. Even if Seadrill did not retain operational control over the work performed by SODEXHO employees aboard its drilling unit, this did not preclude a possible cause of action for the "direct" negligence of Seadrill. The court ordered that Seadrill's motion for summary judgment be granted insofar as Hammett's Jones Act and maintenance and cure claims against Seadrill, but denied Seadrill’s motion as to Hammett's negligence and unseaworthiness claims against Seadrill. SODEXHO's motion for summary judgment was denied. (USDC EDLA, April 12, 2012) 2012 U.S. Dist. LEXIS 51361
COURT ATTEMPTS TO BLUR THE GOTTSHALLNON-PHYSICAL STRESS LINE
SKYE V. MAERSK LINE LIMITED CORPORATION
William C. Skye worked as a chief mate onboard a ship, operated and managed by Maersk Line Liimited Corp. Skye alleged that he suffered physical injury - physical changes to his heart, including left ventricular hypertrophy and torn mitral valve chordae - as a result of Maersk’s failure to comply, and lack of effort to ensure compliance, with federal law prescribing when, how long, and under what conditions mariners may work. Skye filed this maritime personal injury action against Maersk, asserting claims under the Jones Act and for unseaworthiness. Maersk disputed the nature of Skye’s injury, when that alleged injury occurred, and moved for summary judgment, arguing that Skye’s alleged injury is a manifestation of work-related stress and is not a physical injury precluding relief under the Jones Act or under the doctrine of unseaworthiness. Additionally, Skye’s claim is time-barred because he failed to file suit within three years of the date his cause of action accrued, which was in and any claims raised by Skye for conduct between 2000–2004 fail because Maersk did not operate the vessel during that time frame. The court found that there was a genuine issue of material fact that rendered summary judgment inappropriate, because the court declined to conclude as a matter of law whether Gottshalllimits Skye’s action. While the Court acknowledged that injuries to the heart, such as heart attacks, may be the result of non-physical stress, subject to Gottshall’s requirements, Skye’s treating physician had opined that Skye’s injury is a physical injury caused by the working conditions onboard the vessel. Therefore, the court concluded that there was sufficient evidence that the nature of Maersk’s conduct constituted a physical stress that was not limited by Gottshalland summary judgment was inappropriate on this issue. The court also found genuine issues of material fact also remained as to Maersk’s other contentions. Maersk’s motion for summary judgment was denied. (USDC SDFL, March 28, 2012)
HOW DID YOU ACCIDENT HAPPEN? LET ME COUNT THE WAYS.
MINKS V. AEP RIVER OPERATIONS, LLC
Katherine Minks was employed as a cook by AEP River Operations, LLC on board their vessel, when it collided or bumped against another vessel, causing Minks to allegedly fall and land on her buttocks. That was one story - she told someone else that the collision caused her to lose her balance and bump her wrist against a stove. She told a third person that the collision caused her to bump her arm against the stove. In her deposition, Minks testified that the collision threw her about six feet across the room into the pantry landing between her back and butt. Minks finished her tour of duty and left the vessel, twelve days after the collision, checking a box on a departure statement indicating that she had not sustained an injury while on board. After leaving the boat, Minks sought out medical treatment and was eventually diagnosed with a herniated disk with radiculopathy and underwent back surgery. Minks filed suit against AEP and moved for partial summary judgment on her claims for maintenance and cure benefits. AEP also moved for summary on Minks’ claims for maintenance and cure arguing that Minks’ claim must fail because her back injury did not occur or manifest itself while she was working on its vessel. The court concluded that because there was evidence to support both Minks’ and AEP’s positions, summary judgment was inappropriate. Due to irreconcilable conflict in the evidence, the court found neither party was entitled to summary judgment. (USDC SDOH, April 5, 2012) 2012 U.S. Dist. LEXIS 48119
REMAND DENIED ON FRAUDULENTLY PLED JONES ACT CLAIM (CONT.)
LEBLANC V. AEP ELMWOOD, LLC, ET AL.
Anthony Leblanc moved for reconsideration of Judge Lemelle’s prior ruling that Leblanc could not affirmatively prove that he is a seaman under the Jones Act and denying Leblanc’s motion to remand [see April 2012 Longshore Update]. Leblanc was a barge washer employed by Diamond L Services Inc. 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 arguing Leblanc’s Jones Act claim had been fraudulently pled and Leblanc was not entitled to coverage under the Jones Act because he was employed as a shore-based barge washer, not a seaman. 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. Leblanc requested the court to reconsider its prior holding, arguing that the court erred by shifting the burden on Leblance to prove his Jones Act seaman status. The court rejected this argument noting that its prior holding indicated its determination that Diamond had satisfied its burden by proving Leblanc had no possibility of proving seaman status; not that Leblanc had failed to prove seaman status. Cases cited by Leblance to support his contention that he faced perils of the sea did not warrant a finding of seaman status. The court found that Leblance was not exposed to the perils of the sea, nor did he face dangers particular to those of a seaman. The court made clear that the fact that Leblanc did not literally go to sea was immaterial to the court's finding that he was not a Jones Act seaman. As such, the court concluded that Leblanc had failed to established any manifest error warranting the court to reconsider its prior ruling. Leblanc’s motion for reconsideration was denied. (USDC EDLA, April 5, 2012) 2012 U.S. Dist. LEXIS 48179
INSPECTED VESSEL REGS APPLY TO TOWING VESSELS ON DATE OF ENACTMENT
HABEL V. GROVE FARM FISH & POI, LLC
Daniel Habel was employed as a diver and offshore crewman by Grove Farm Fish & Poi, LLC and alleged that he was injured during the course of his employment, and that Grove Farm failed to provide a safe place in which to work, including a lack of commercial diving safeguards and procedures required by law. Habel sought partial summary judgment on the ground that Grove Farm is liable under the Jones Act based on violations of Coast Guard commercial diving operations regulations. He argued that the regulations create mandatory legal duties under FELA, which is applicable in Jones Act cases, including the requirement to have a certificate of inspection issued by the Coast Guard as a "towing vessel" subject to inspection, under 46 U.S.C. §§2101(40), 3301(15), 3311(a), and 46 C.F.R. §197.202. Grove Farm argued in opposition that the regulations do not apply because the Coast Guard has never required its towing vessel to have a certificate of inspection and it was not an inspected vessel when Habel was an employee. Instead, 46 U.S.C. §3301(15) is dependent upon the Coast Guard's pending rulemaking to determine whether towing vessels are subject to inspection, and if so, the nature and scope of the inspection. The court observed that the Coast Guard and Maritime Transportation Act of 2004, §415, added "towing vessels" to 46 U.S.C. §3301. The court expressed its agreement with Habel that §3301(15) classifies all "towing vessels" as vessels subject to Coast Guard inspection, and that the action of classification was complete and effective upon the statute’s enactment in 2004. The court therefore concluded that the Coast Guard commercial diving operations regulations set forth in Subpart B of 46 C.F.R. §§197.200 through 197.488 applied to Grove Farms diving operations from its towing vessel and granted Habel motion for partial summary judgment with respect to this issue. (USDC HI, April 4, 2012) 2012 U.S. Dist. LEXIS 47534
COURT UPHOLDS SHIPOWNER’S FORUM SELECTION CLAUSE
ASENOV V. SILVERSEA CRUISES, LTD.
Marin Asenov, a Bulgarian national, filed suit against his former employer, Silversea Cruises, Ltd, alleging violations of the Jones Act and the general maritime law, including actions for unseaworthiness, failure to provide maintenance and cure, breach of contract, and retaliatory discharge. Silversea moved to dismiss Asenov’s complaint, arguing that Asenov’s employment agreement stipulated that actions such as the suit filed would be brought in Bulgaria, Asenov's country of citizenship. Asenov disputed the validity of the forum selection clause and whether his suit was subject to it. The court initially found that the employment agreement at issue were fundamentally international, and thus the forum-selection clause contained within it was presumed to be valid. Asenov argued that the Bulgarian courts are "so inadequate" to render the forum-selection clauses "fundamentally unfair" due to the "inordinate amount of time it takes to resolve disputes in Bulgaria. The court rejected this argument, holding that the possibility of delay in Bulgaria was an insufficient reason to declare that the Bulgarian court-system inadequate. Therefore, the court found that Asenov had not carried its burden of demonstrating that the forum-selection clause was unreasonable under the circumstances holding, instead, that the clause was valid and enforceable. Turning to the scope of the forum selection clause, the court noted that Asenov’s six-count complaint included claims under both tort and contract. The forum selection clause at issue was stated to apply to "any dispute or claims arising under this agreement." According to Silversea, this language reasonably encompassed all of Asenov’s claims. Asenov disputed this assertion, arguing that the scope of the forum selection clause does not apply to actions in tort. The court found that the “arising under” language in the forum selection clause was sufficiently broad to cover all counts in Asenov’s complaint. All of the claims arose out of the initial business relationship between Asenov and Silversea evidenced by the contract. Consequently, the court granted Silversea's motion to dismiss Asenov’s complaint. (USDC SDFL, March 28, 2012) 2012 U.S. Dist. LEXIS 49200
ARBITRATION AGREEMENT PREVAILS AGAINST ALL ARGUMENTS
LUJAN V. CARNIVAL CORPORATION
Gonzalo Lujan filed suit in state court to recover for injuries allegedly sustained in the course and scope of his employment with Carnival Corporation, asserting claims for Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to treat. Carnival removed the case to federal court pursuant to 9 U.S.C. §205 on the basis that Lujan's claims were subject to arbitration. Carnival moved to compel arbitration, which Lujan opposed. Lujan contended that his claims were not subject to arbitration because the arbitration agreement he executed was null and void. Lujan argued Carnival makes it impossible for seaman to review and examine the terms and conditions of Carnival's arbitration agreements before signing them, violating the Seamen's Articles of Agreement Convention, rendering the arbitration clause invalid and/or unenforceable. Lujan also contended that the arbitration provision is void because Panamanian law, if applied to his claims, would deprive him of all meaningful relief and would be against public policy. The court rejected all of Lujan’s arguments, concluding that arbitration must be compelled. here. The four jurisdictional prerequisites of Lindo were satisfied, and Lujan's defenses were not viable at this stage of the proceedings. Any public policy arguments he had must await the outcome of arbitration, at which time they may be asserted during the arbitral award enforcement stage. The court ruled that the dispute must be resolved in arbitration under the parties' agreement. Carnival's Motion to Compel Arbitration was granted. (USDC SDFL, April 2, 2012) 2012 U.S. Dist. LEXIS 45812
OPERATOR OF PUBLIC VESSEL IS NOT YOUR JONES ACT EMPLOYER
SOLER V. MAERSK LINE, LTD.
Latisa Soler brought a Jones Act suit, against Maersk Line, Ltd, to recover damages arising from an alleged injury she allegedly suffered while employed on a vessel owned by the Military Sealift Command, an agency of the United States government. Maersk, pursuant to a General Agency Agreement with the Military Sealift Command, operated the vessel as its general agent at the time of Solar’s employment. When employed on the vessel, Solar was paid by Maersk. She also received a Certificate of Discharge that stated that Maersk was her employer. Nevertheless, Maersk moved for summary judgment on the basis that the Jones Act provides a seaman with a right to recovery only against their employer and, at the time of Solar’s employment aboard the vessel, Maersk was not Solar’s employer for purposes of the Jones Act. The General Agency Agreement stated that the vessel was a "public vessel of the United States Government under the operational and administrative control of the Commander, Military Sealift Command," and its mission, at all relevant times, was to provide an ocean surveillance platform in support of the Navy's ability to detect, monitor and track global submarine movements. Solar did not contest the fact that the United States Government had operational and administrative control of the vessel; instead, she contended that Maersk should be equitably estopped from claiming that it was not her employer under the Jones Act because she was paid by Maersk, Maersk was listed as the employer in a document she received and various other documents were silent as to the relationship between Maersk, the United States Government and seamen aboard the vessel. The court rejected Solar’s position, finding instead that, when viewed in light of the entirety of the undisputed facts and circumstances of Solar’s employment, these facts failed to present a genuine issue as to who Solar’s employer was for Jones Act purposes. There was no dispute of material fact that, when looking at the venture as a whole, the United States Government, and not Maersk, was Solar’s Jones Act employer. Accordingly, the court granted Maersk's motion for summary judgment. (USDC SDNY, April 17, 2012) 2012 U.S. Dist. LEXIS 54066
COURT GIVES WIDOW ANOTHER CHANCE TO PROVE HER CLAIMS (CONT.)
IN RE: JAMES T. ANDERSON
James T. Anderson purchased a catamaran from her South African builder and, pursuant to South African law, Anderson took title to the catamaran prior to departure. The purchase price included delivery to Port Townsend, Washington. Unfortunately, the crew never reached their destination. The ship was caught in a severe storm, in winds in excess of 100 mph, and was believed to have capsized and broken apart. The entire crew is believed dead, though, only one of the crew members, Richard Beckham's, body was ever recovered. Anderson filed a Motion for Limitation and Summary Judgment, pursuant to the Limitation of Liability Act, asking the court to conclude that he was entitled to limit his liability for any action arising from the loss of his vessel and its crew to the catamaran’s value at the end of the voyage. He also asked the court to dismiss the Jones Act and common law wrongful death claims brought against him by Sonia Beckham, the widow of Richard Beckham. In a prior order [see February 2012 Longshore Update] the court found that DOHSA preempted the widow’s common law negligence and unseaworthiness claims and dismissed them. It otherwise continued the case to allow the widow an opportunity to take the steps necessary to attain statutory standing to bring a DOHSA or Jones Act claim. The matter was again before the court on Anderson's motions for Limitation and Summary Judgment, to limit his liability to the value of his vessel at the end of the voyage and to dismiss the Jones Act claim brought against him by the widow. The court began by dismissing the widow’s Jones Act suit, holding that Anderson had made a compelling case that he was not the decedent's employer and had met his initial burden of proving each and every element of his defense such that no reasonable jury could find otherwise. Anderson had no contact whatsoever with any of the crew either prior to the vessel setting sail or at any point during its journey. He did not even know their identities until after the vessel was lost. Instead, Anderson was completely dependent on independent company, which had hired each of the crew members and was in contact with them, to periodically updated him on vessel’s status. That company, not Anderson, hired and controlled the master and the crew. The court flatly rejected the widow’s position that the mere fact that Anderson paid the company to deliver his vessel meant that he became the employer of anyone who eventually took part in that delivery. The court also found that Anderson was entitled to judgment as a matter of law on the widow’s request for non-pecuniary damages for loss of consortium, etc., and for punitive damages because DOHSA limits recoverable damages in wrongful death suits to pecuniary loss. Finally, the court found that Anderson had met his burden of demonstrating prima facie entitlement to limitation. Despite numerous allegations of alleged fault by the widow, the court concluded she failed to rebut Anderson’s prima facie showing. The widow presented no evidence that any of the alleged deficiencies contributed to decedent's death. In regard to the safety equipment, the widow conceded that the vessel was equipped with both life vests and a life raft and makes no allegation that these items did not function as intended. Instead, she argued that more safety gear or better safety gear could have been provided. However, the court pointed out that was not the standard. The warranty of the ship owner is not one of unconditional safety, but of reasonable fitness for the purpose it was intended. Accordingly, the court granted Anderson’s motion as to limitation. (USDC WDWA, April 16, 2012) 2012 U.S. Dist. LEXIS 53176
AMBIGUOUS SHIPPING ARTICLES PRECLUDE SUMMARY JUDGMENT
ROMAN V. UNITED STATES OF AMERICA
This suit concerned a dispute over wages and benefits Julio Roman claimed he was owed by the United States, following his injury aboard a vessel in the United States' Ready Reserve Fleet, where he served as a chief steward. During his service, Roman allegedly injured his back. The next day, he left the ship and returned to the United States. The United States paid Roman his unearned wages and it paid him maintenance of $16 per day; the amount set in the collective bargaining agreement between the United States and the Seafarers' International Union. Roman filed suit seeking a declaration from the court that the $16 per day maintenance amount was void as against public policy. He also sought additional unearned wages, as well as other damages and fees. The United States counterclaimed for overpayment of maintenance and cure. Although Roman was allegedly injured in the ship's service, he later was involved in an automobile accident, for which he sought medical treatment for pain in his neck and upper back. As a result, the United States claimed that the automobile accident may have exacerbated Roman’s injuries, causing it to overpay maintenance benefits. It further claimed that it may have overpaid cure. Roman disputed the United States’ claim, arguing the lack of any connection between the two injuries—his lower back injured aboard the ship and his upper back in the automobile accident. In support of his contention, Roman furnished he examination notes of his chiropractor, who noted during Roman’s first examination after the automobile accident that it did not appear like his lower back injury was aggravated by the motor vehicle collision. The court found the argument of the United States to the contrary to be entirely speculative and unavailing. The court found that no genuine issue of material fact existed to preclude granting Roman’s motion to preclude the United States from contending that Roman’s second accident exacerbated his first injury. Turning to Roman’s claims, the court found the terms of the purported contract ambiguous. Considering only Roman’s evidence, the court was not convinced that Roman proved each and every element of his claim such that no reasonable jury could find otherwise. Moreover, even assuming that Roman met his initial burden, the court found that the United States presented sufficient evidence to create a triable issue of fact. Roman’s motion was denied. (USDC WDWA, April 4, 2012) 2012 U.S. Dist. LEXIS 48631
Quotes of the Month . . .“One is never more on trial than in the moment of excessive good fortune.”--Lew Wallace
“It is useless for the sheep to pass resolutions in favor of vegetarianism while the wolf remains of a different opinion."--William Ralph Inge
“To the timid and hesitating everything is impossible because it seems so.”--Sir Walter Scott
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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