June 2015
Notes From Your Updater - On May 18, 2015, the U.S. Supreme Court denied the petition for certiorari in the case of McBride, et al. v. Estis Well Services, LLC, Docket No. 14-761 [see October 2014 Longshore Update and January 2015 Longshore Update]. The question presented for review was, “Whether seamen may recover punitive damages for their employer’s willful and wanton breach of the general maritime law duty to provide a seaworthy vessel, as held by the Ninth and Eleventh Circuits, or are punitive damages categorically unavailable in an action for unseaworthiness, as held by the First, Fifth, and Sixth Circuits and the Texas Supreme Court?”
On May 18, 2015, the U.S. Department of Labor published the final text of regulations governing practice and procedure for proceedings before the Office of Administrative Law Judges (OALJ). A Notice of Proposed Rulemaking was published in the Federal Register on December 4, 2012 requesting public comment on proposed revisions to and reorganization of these regulations. The revisions make the regulations more accessible and useful to parties. The revisions also harmonize administrative hearing procedures with the current FRCP and with the types of claims now heard by OALJ. The Department received sixteen comments to the proposed rule. The final rule responds to those comments and establishes the final text of the revised regulations. The revised regulations are effective June 18, 2015.
OWCP has revised its mandatory forms LS-207, Notice of Controversion, and LS-208, Notice of Final Payment or Suspension of Compensation Payments. The changes are described in Industry Notice 151, but include the following:
∙ Revised LS-207 reorders the list of parties and addresses, adding a back page with instructions requiring that a copy of the form be mailed to the injured employee (and legal representative, if any), and eliminating the requirement that the form be submitted in triplicate.
∙ Revised LS-208 reorganizes the report of payments made on account of death and other payments, expands the report of payments made on scheduled permanent partial disability awards, and adds a back page to provide additional instructions. As with the LS-207, the signing of the LS-208 serves as confirmation that a copy was mailed to the injured employee and his attorney if represented.
Both forms also include information for electronic submission through SEAPortal for easier and more efficient transmission. The new forms are available on the Division of Longshore and Harbor Workers’ Compensation website.
It looks like the bills attempting to make South Carolina an exclusive jurisdiction state [see May 2015 Longshore Update] are dead for at least another year, but perhaps it was a blessing in disguise. The last revision of the language in H. 3396 was a bigger boondoggle than concurrent jurisdiction. In summary it said: Section 42-1-378: This title does not apply to an employee who suffers an injury on or after July 1, 2016, for which there is jurisdiction under either the Longshore and Harbor Workers’ Compensation Act…unless the employee suffers death where there are no financial dependents or sustains a non-scheduled injury under the LHWCA, or any of its extensions. The amended language above would have created a whole new bifurcated trial at the beginning of the claim to determine if the employee suffered a non-scheduled injury before getting into the merits of the claim. It appears as though the effort to do away with concurrent jurisdiction in South Carolina is on ice until January 2016. My thanks to Stan Henslee and Brian McElreath for this update on the legislation.
On May 4, 2015, the U.S. Supreme Court denied the petition for certiorari in the case of Skye v. Maersk, Line, Ltd., Docket No. 140677. The question before the Court was, “Whether a seaman can recover money damages under the Jones Act, 46 U.S.C. §30104, for a physical injury to the heart (labile hypertension and left ventricular hypertrophy), stemming from excessive work hours, arduous working conditions and an erratic sleep schedule?”
U.S. West Coast Longshore workers have overwhelmingly voted to ratify a tentative contract agreement reached in February with employers represented by the Pacific Maritime Association (PMA). Members of the International Longshore and Warehouse Union (ILWU) voted 82 percent in favor of approving the new 5-year agreement that will expire on July 1, 2019. The previous contract was ratified in 2008 with a vote of 75 percent in favor. The contract, which is retroactive to July 1, 2014, runs through June 30, 2019. It was also approved earlier this month by most of the 71 companies that make up the PMA.
SETTLEMENTS CAN’T BE MODIFIED AND NO FRAUD DEMONSTRATED
COOPER V. DIRECTOR, OWCP [NORTHROP GRUMMAN SHIPBUILDING, INC.]
Francyne J. Cooper allegedly injured her right arm and shoulder at work in 2007. Northrop Grumman Shipbuilding, Inc. paid Cooper temporary total disability benefits. The parties subsequently agreed to settle Cooper’s claim under the Act for a lump sum payment of $22,500. The settlement settled the claim Cooper filed under the Virginia workers’ compensation statute for an additional lump sum payment of $22,500, less attorney’s fees, such that claimant’s net recovery under both statutes was $36,000. Cooper signed the Section 8(i) settlement agreement and another document entitled “Settlement Agreement and General Release,” agreeing to “settle all potential and/or outstanding claims arising out of her employment with Northrop. The district director approved the Section 8(i) settlement as it was adequate and not procured under duress. The settlement agreement under the Virginia statute also was approved. In 2009, Cooper filed claims for benefits under both the Longshore and Virginia Acts. Because she had not worked for Northrop since 2007, her claim was interpreted as a request to modify her Section 8(i) settlement. The ALJ observed that a settlement under Section 8(i) is not subject to modification under Section 22 of the Act. Further, he found, even if a settlement is subject to modification due to fraud, claimant did not present evidence of fraud. Therefore, the ALJ denied Cooper’s claim and Cooper’s motion for reconsideration. Cooper, proceeding pro se, appealed the ALJ’s decisions, arguing that her attorney. She asserts that her attorney and Northrop’s counsel conspired to deprive her of her rights. The BRB affirmed the ALJ’s finding that Cooper did not substantiate her claim that employer and/or her own counsel conspired to defraud her of benefits under the Act, holding the decision was rational and supported by substantial evidence. The Board affirmed the denial of Cooper’s claim and denied her motion for reconsideration. On further appeal, the Fourth Circuit, in a short per curiam opinion, noted that its review of the record disclosed that the Board's decisions were based upon substantial evidence and were without reversible error. Accordingly, the appellate court denied Cooper's motion to proceed in forma pauperis and denied the petition for review. (4thCir, May 11, 2015, UNPUBLISHED) 2015 U.S. App. LEXIS 7734
LONGSHOREMAN’S RETALIATORY TITLE VII CLAIM FAILS
WILLIAMS V. GEORGIA STEVEDORE ASSOCIATION
Robert Williams, a longshoreman employed pursuant to a collective bargaining agreement with the International Longshore Association (ILA), sued the Georgia Stevedore Association (GSA), a collective bargaining representative for multiple stevedore companies, for improper retaliation under Title VII, claiming he was improperly retaliated against for the following protected activities. Although Williams was not a company header, he could act as a header based on his seniority when a company header was not available. In 2010, the Williams was suspended from acting as a header for one year. In 2011, Williams received a thirty-five day suspension from work. In 2012, the Williams was suspended from work for thirty days and his header status was permanently revoked. Williams claimed that these retaliatory actions resulted from his hiring of Linda Walker, whom the Williams claimed he was told not to hire because she frequently complained of gender discrimination, filing his claim with the EEOC, and filing this lawsuit. The district court granted summary judgment for GSA on all claims, finding that Williams failed to produce any evidence from which a fact-finder, reviewing the objective circumstances, could conclude that Williams was opposing discrimination against Walker by hiring her. The district court also determined that, while filing an EEOC complaint was a protected activity, Williams had failed to show a causal nexus between the filing of his EEOC claim and his thirty-five day suspension from work. Finally, as to the filing of his lawsuit, district court determined that this was a protected activity and that Williams had shown a causal nexus between the filing of his lawsuit and his thirty day suspension and the permanent revocation of his header status. The burden then shifted to GSA to show a non-discriminatory reason for the discipline. The district court held that GSA met this burden by showing that the discipline resulted from the Williams refusal to follow the instructions of his supervisor. The burden then shifted back to Williams to present evidence that this non-discriminatory reason was pretextual, which the district court found Williams had failed to do. Williams filed a timely appeal of the district court’s judgment. The appellate court found no reversible error in the district court's grant of summary judgment in favor of GSA and affirmed the district court’s judgment in all respects. (11th Cir, May 4, 2015, UNPUBLISHED) 2015 U.S. App. LEXIS 7334
LONGSHOREMAN’S CLAIM AGAINST STEVEDORE RULED UNTIMELY
WILLIAMS V. ASERRADEROS ARAUCO, SA, ET AL.
Keisha Williams, a longshoreman, sustained injuries while transporting lumber that she alleged was negligently packed by Aserraderos Arauco, San Vicente Terminal Internacional (SVTI), and SSA Marine, Inc. Williams first named SSA Marine as a defendant more than three years after her injury, which was beyond the longest potentially applicable statute of limitations. The court initially dismissed the second amended complaint with leave to amend because the statute of limitations had run and Williams' claim against SSA neither related back nor triggered equitable tolling. Williams filed her third amended complaint and SSA moved to dismiss the third amended complaint on the grounds that her claim was still barred by the applicable statutes of limitation. SSA argued that the claim against it was barred under either California's two-year statute of limitations for negligence, or under the three-year statute of limitations under general maritime law, because it was not named as a defendant until more than three years after the accident. Williams did not dispute that she filed her claim against SSA after the applicable statutes of limitations had run, but contended that her claim against SSA was not time-barred because it related back to the filing of her original complaint and because the claim was tolled under the doctrine of equitable tolling. The court agreed that Williams' claims against SSA did not relate back because Williams had pleaded no facts from which the court could conclude that SSA had reason to think that it would have been named as a defendant but for a mistake by her. Williams' claims against SSA were also not equitably tolled because she pleaded no facts from which the court could conclude that her failure to name SSA as a defendant before the statute of limitations expired was reasonable. Accordingly, the court granted SSA’s motion and dismissed the third amended complaint. Because of SSA's failure to make initial disclosures and participate in discovery, however, the court declined to conclude that Williams' complaint should be dismissed with prejudice. (USDC NDCA, May 12, 2015) 2015 U.S. Dist. LEXIS 62328
STEVEDORE LEFT ON THE HOOK FOR ACTIONS OF ITS FOREMEN
ELMI, ET AL. V. SSA MARINE, INC., ET AL.
SSA Marine, Inc. and SSA Terminals, LLC operate a stevedoring business and leases land from the Port of Seattle for its operation. SSA's business involves the loading and unloading of vessels by longshore workers. Plaintiffs Kaiser Said Elmi, Tesfarghabar Berhane, and Mohamed Muhiddin were all short-haul truck drivers of East African dissent who worked at the Port of Seattle, who were self-employed and contracted with various trucking companies that dispatched them. Plaintiffs and the trucking companies they contract with have no contractual relationship with SSA. As short-haul truck drivers, plaintiffs' jobs are to pick-up and haul shipping containers between terminals at the Port of Seattle and the rail yards as well as other nearby locations. The events giving rise to this lawsuit primarily occurred at Terminal 30, which SSA operates. After several altercations with SSA foremen on Terminal 30, the plaintiffs filed suit with causes of action including assault and battery, discrimination under 42 U.S.C. §1983, racial/national origin discrimination under Title VII, intentional infliction of emotional distress, racial/national origin discrimination under RCW 49.60.030, and negligence. SSA moved for summary judgment on plaintiff’s claims and to strike several of plaintiffs' exhibits and claims made within their reply to the motion for summary judgment. After hearing all the evidence in connection with SSA’s summary judgment motion, the court found that, while SSA’s foreman was not charged with the enforcement of SSA's terminal rules, there was a genuine issue of material fact as to whether the alleged assaults were done in furtherance of SSA's business and within the scope of employment. After examining the tests for plaintiffs'§1983, the court concluded the claim could not survive under any of the tests considered by the court and summary judgment dismissal was appropriate for the claim. The court also found that plaintiffs had failed to first exhaust administrative remedies with the EEOC under Title VII. Accordingly, the court concluded that granting summary judgment on the Title VII claim was appropriate. With respect to the plaintiffs’ cause of action for intentional infliction of emotional distress, the court concluded that there was a genuine dispute of material facts as to whether there was outrageous conduct and whether SSA ratified the conduct of its foremen. With respect to plaintiffs’ discrimination claim under RCW 49.60.030, the court found that plaintiffs had failed to produce facts indicating that there was a genuine issue of material fact as to whether Terminal 30 was a public accommodation. Finally, with respect to plaintiffs’ negligence claim, the court concluded that plaintiffs had raised a genuine issue of material fact as to whether SSA met their duty of care to plaintiffs.
SSA’s motion for summary judgment was granted with respect to plaintiffs §1983 claims against SSA and plaintiffs' racial and national origin discrimination claims in violation of Title VII and RCW 49.60.030, and dismissed those claims. SSA’s motion was denied in part with respect to plaintiffs' assault and battery, intentional infliction of emotional distress, and negligence claims. SSA motion to strike was denied. (USDC WDWA, May 18, 2015) 2015 U.S. Dist. LEXIS 64863
PARTIAL SUMMARY JUDGMENT GRANTED & SANCTIONS DENIED IN §905(B) CASE
MALDONADO V. HAPAG-LLOYD SHIPS, LTD., ET AL.
Francisco and Bridgette Maldonado brought an action under §905(b) of the LHWCA, the general maritime law and New York state law seeking to recover damages for injuries allegedly sustained by Maldonado while working as a lasher aboard a Hapag-Lloyd container ship. As Maldonado grabbed a turnbuckle, he was shocked by a torn black electrical cable, that he had not seen earlier, which was touching or tangled around the turnbuckle. Maldonado sued the owners of the vessel, the vessel in rem, and New York Container Terminal, Inc. and Howland Hook Container Terminal, Inc. (stevedore defendants), which operated the terminal where the vessel was docked for unloading. The defendants moved for summary judgment to dismiss Maldonado’s complaint, arguing that Maldonado could not show a breach of their "turnover duty" since the accident occurred over nine and a half hours after the turnover and that the conditions leading to the accident had existed for a sufficiently long time for defendants to discover. Specifically, they contended there was no evidence of any defective or broken electrical cable at the time of turnover. On the record presented and drawing all inferences in favor of Maldonado, the court did not agree, noting that defendants’ attempt to rule out other explanations rested on disputed or insufficient facts and were insufficient to establish as a matter of law that they did not breach their turnover duty. While acknowledging that it was not itself a basis to find breach of the turnover duty, a number of people testified to the poor housekeeping practices on the vessel, increasing the likelihood that a live electrical cord could be hidden around a metallic piece of equipment prior to turnover. Moreover, there were issues of fact whether the broken live cable was caused by the removal of a reefer container without having first been unplugged. Had the broken cable been present prior to unloading and laid hidden until discharge of the 21 containers in the bay, a jury could find that it was not an obvious hazard given defendants' housekeeping practices and the fact the cord was black, instead of yellow, and not easily seen in dark conditions, and the placement of the cord vis-a-vis the turnbuckle. Defendants also argued that they did not breach the duty of active involvement since control over the work area had turned over to the stevedore. This court agreed and granted defendants summary judgment on that issue as well. There was no evidence that there were any vessel employees actively involved in any aspect of cargo operations prior to the accident. For similar reasons, the court found no duty to intervene. The vessel defendants' motion for summary judgment was denied in part and granted in part. (USDC EDNY, May 1, 2015) 2015 U.S. Dist. LEXIS 57540
In another order in the same case, the court denied Maldonado’s motion for spoliations sanctions against the vessel defendants. Maldonado argued that while he was being assisted off the vessel after the accident, members of the vessel's crew removed the electrical cable from the scene of the accident. Defendants did not produce the electrical cable for inspection during discovery. Although several photographs of the electrical cable were taken by an employees of the stevedore defendants, Maldonado argued that his expert could not offer an opinion with a reasonable degree of engineering certainty as to the cause of the accident without examining the actual electrical cable. Although there was no evidence as to what happened to the electrical cable after it was removed by the vessel's crew members, the court refused to find that the vessel owners acted with a "culpable state of mind" sufficient to warrant sanctions. There was no evidence to suggest that the vessel owners intentionally discarded the electrical cable. More likely, if the crew members removed the electrical cable, it was because the cable was a potential hazard to the workers in the area. The court pointed out that the missing electrical cable would have been relevant to both parties in establishing their cases on liability. There was no extrinsic evidence submitted that would suggest that had the electrical cable been preserved it would have been more likely to support Maldonado’s theory that it was used for deck work and left behind by the vessel's crew members. Since there were photos of the electrical cable from the scene of the accident, the parties have some basis on which to argue the type of cable at issue and how it may have been used. Maldonado’s motion for spoliation sanctions was denied. (USDC EDNY, May 1, 2015) 2015 U.S. Dist. LEXIS 57534
COURT DENIES ALL PENDING SUMMARY JUDGMENT MOTIONS IN OCSLA CASE
LEWIS V. HELMERICH & PAYNE INTERNATIONAL DRILLING CO, ET AL.
Robert Lewis, an employee of Bay Ltd., a subsidiary of Berry G.P., filed suit under the Outer Continental Shelf Lands Act (OCSLA), alleging that, while he was working on the Ram-Powell tension-leg fixed platform, he was allegedly injured when he slipped on an oily deck, then tripped on a pile of material and hit his left elbow. Lewis also alleged that he suffered a herniated disk along with damage to other discs, which resulted in epidural steroid injections to his cervical spine and lumbar spine, an ulnar transposition surgery and an L5-S1 diskectomy recommendation. Lewis claimed that prior to his alleged injuries he had informed Bay and Shell safety personnel that there was a hazardous pile of materials impeding his work duties. Lewis also alleged that the employees of Sparrows and Nabors, crane operators, were informed of the pile of materials. According to Lewis, Defendants failed to remedy the hazardous condition and failed to properly clean the platform. Nabors moved for summary judgment arguing that, as a matter of law, it owed no duty to Lewis, or did not breach such duty if owed. Sparrows also moved for summary judgment arguing that it has no liability for the accident because it had no crane operators on the platform. Shell and Helmerich & Payne International Drilling Company argued that Lewis's claims were barred under the assumption of the risk doctrine. The court denied all the summary judgment motions, finding that significant disputed facts demonstrate that the issue of whether the injury was foreseeable by each defendant was pregnant with contested facts. There were genuine issues of material facts regarding whether Nabors and Sparrows owed a duty to Lewis, and whether they breached such a duty. There was also a genuine dispute of material fact as to assumption of the risk. Significantly, the parties dispute whether oil played a role in causing Lewis's fall. According to Lewis's deposition testimony, it did. According to the accident report cited by the defendants, it did not. As this disputed fact was material to the applicability of assumption of the risk, summary judgment was inappropriate on the issue. (USDC EDLA, May 6, 2015) 2015 U.S. Dist. LEXIS 61249
STAFFING COMPANY PREVAILS ON BORROWED SERVANT ARGUMENT
SANTACRUZ, ET AL, V. HERTZ EQUIPMENT, ET AL.
This maritime case stems from a barge fire. Hutco is a staffing agency that provides laborers to various companies. One of Hutco's employees, Luis Andino, was assigned to work at the shipyard of Texas Barge & Boat (TBB), which repairs barges and other vessels. About two weeks into Andino's time at TBB, a barge in the shipyard caught fire. The morning of the fire, a TBB supervisor had assigned Andino to fire watch. That task involved monitoring and extinguishing any fires that broke out in his area of the barge. But Andino left his post without warning to get a drink of water, and the fire broke out during his absence. Two of the plaintiffs could not escape the barge and tragically died. The other plaintiffs claimed to have suffered severe emotional distress as a result of the incident. Hutco argued that it was not vicariously liable for any negligence on Andino's part. It filed a summary judgment motion invoking the borrowed servant doctrine, arguing that it was not vicariously liable for Andino's conduct because he was the borrowed servant of TBB. In reviewing the Ruiz factors, with particular weight placed on the control factor, the court noted Hutco assigned Andino to TBB and had no role in assigning him tasks or directing his work for TBB. Instead, Andino reported to TBB for his assignment and carried out that assignment pursuant to TBB's instructions. The court’s review of all the submitted evidence, construed in the light most favorable to the plaintiffs, showed that the control factor weighed in favor of finding that Andino was a borrowed servant of TBB, as did the clear majority of the other factors. Accordingly, the court concluded that Andino worked as a borrowed servant of TBB and that it could not be vicariously liable for Andino's negligence. However the court noted that its borrowed servant holding did not preclude direct liability on Hutco's part that may have contributed to the accident. Because the "borrowed servant" doctrine did not bar the direct liability claims, and some evidence may support them, the court declined to enter final judgment in favor of Hutco. Judgment was entered in Hutco's favor on all claims based on vicarious liability, to the extent there were any. The court declined to issue a final judgment in Hutco's favor because of the pending direct liability claims. (USDC SDTX, April 27, 2015) 2015 U.S. Dist. LEXIS 66007
COURT DISMISSES DISCRIMINATION CLAIM UNDER LHWCA NIFA EXTENSION
TOLBERT V. SECRETARY, DEPARTMENT OF THE AIR FORCE
This case involved an employment discrimination case filed by Violet Tolbert, pro se, against Deborah Lee James, in her capacity as Secretary of the United States Air Force. Tolbert alleged discrimination against her on the basis of disability and violation of the Family Medical Leave Act (FMLA), when she was not allowed to take an indefinite extended period of sick leave without pay and was fired for failing to report to her civilian job as a custodian at Maxwell/Gunter Air Force Base. She also alleged that she was fired in response to her insistence that her employer pay a workers' compensation claim, was discriminated against on the basis of age. The LHWCA applies to workers' compensation claims by civilian employees that are paid from non-appropriated funds of the United States military for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces. The Secretary moved for summary judgment. After reviewing the motion for summary judgment, together with the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file, the court concluded that the motion for summary judgment was due to be granted on Tolbert's FMLA, disability, and age discrimination claims. Further, the court concludes that Tolbert's workers' compensation retaliation claim was due to be dismissed with prejudice pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) and that Tolbert’s case was due to be dismissed with prejudice. Because Tolbert could not return to work in any capacity at the time of her termination, and because indefinite leave would not have been a reasonable accommodation, she was not an "otherwise qualified" person with a disability. Therefore, she could not prevail on her claim for
wrongful termination. Tolbert was provided almost twice the amount of leave required under the FMLA. Accordingly, the defendant was entitled to summary judgment on Tolbert's FMLA claim.
The court also found that Tolbert had failed to exhaust her LHWCA administrative remedies with respect to her retaliation claim under §948(a). The court also found that allowing Tolbert an opportunity to amend or restate her retaliation claim would be futile because no facts existed to support the claim. Finally, the court found that Tolbert did not timely pursue or exhaust her administrative remedies with respect to her ADEA claim that she was subjected to age discrimination. Because the court concluded that there was no genuine dispute of material fact, it held that the defendant was is entitled to judgment as matter of law. (USDC MDAL, March 25, 2015) 2015 U.S. Dist. LEXIS 61345
And on the Admiralty front . . .
COURT HOLDS THAT DREDGER CANNOT JUST RELY ON CORPS SPECS (CONT.)
CONTANGO OPERATORS, INC., ET AL. V. WEEKS MARINE, INC., ET AL.
A dredge owned by Weeks Marine, Inc. struck and ruptured a Contango Operators, Inc. pipeline, that ran along the floor of the Gulf of Mexico, crossed the Atchafalaya Pass Channel, and was attached to six wells. Contango and its insurers filed suit against Weeks and the United States of America to recover for the ensuing damages. Although Contango applied to the U.S. Army Corps of Engineers for a permit to construct the natural gas pipeline, information concerning the proposed placement of the Contango pipeline across the Atchafalaya Channel was not forwarded from the Regulatory Division of the Corps to the Waterways Division of the Corps. Weeks was awarded a contract to dredge the Atchafalaya Channel and, while five submarine pipelines located in or near the Atchafalaya Channel were identified in the specifications, the Contango pipeline was not identified in the dredging contract. After completing the pipeline Contango provided as-built drawings that illustrated the intersection of the pipeline and the Atchafalaya Channel to the Minerals Management Service, the National Ocean Service, and the United States Coast Guard; however, no division within the Corps received the as-built drawings. Prior to the pipeline rupture by Weeks’ dredge, NOAA had published an updated nautical chart and the Coast Guard had issued a Notice to Mariners (NM), both of which identified the Contango pipeline. The updated NOAA charts and NM were published after Weeks had been awarded the contract and had commenced dredging. After the parties stipulated to deferred production damages of $7,981,927.00, the court found Weeks liable for 40% of Contango’s damages and the Corps liable for 60% of Contango’s damages and holding Contango not contributorily negligent. Total damages, including prejudgment interest totaled $13,867,095.40. While the court found that, based upon custom and practice in the dredging industry, that Weeks had no statutory duty to have up-to-date navigation charts or licensed crew members aboard the dredge, the court refused to ignore the alternate availability and ease of access to current pipeline information, thereby finding Weeks partially liable for striking the Contango pipeline. The court found that the United States owed Contango a duty of reasonable care and concluded that the allision by the Weeks’ dredge and the resulting damage to the pipeline were foreseeable consequences of the failure of the Corps to include the Contango pipeline in the dredging contract specifications. By identifying five other pipelines in the area, and omitting the Contango pipeline, the Corps represented that the Contango pipeline was not located in the area to be dredged by Weeks Marine. The court rejected Weeks’ contention that it owed no duty to Contango and acted as a reasonable dredger when it relied on the assertions from the Corps that only five pipelines were implicated by the project. The court also rejected Weeks’ government contractor immunity defense, that it was entitled to indemnity from the United States for any liability imposed on it because of its sole reliance on the contract, holding the United States' failure to include the Contango pipeline in the contract specifications and subsequent failure to warn Weeks of its error was not a discretionary action based on policy considerations. Therefore, the exception did not apply, sovereign immunity was waived, and the government was liable for breaching its duty to Contango [see April 2014 Longshore Update]. Weeks and the United States appealed the judgment holding them 40% and 60% liable, respectively, for damages Contango suffered in the dredging accident. Weeks claimed that it was not negligent as a matter of law and, alternatively, that it was only 10% liable. The government urged that an exculpatory clause in Contango's pipeline permit precludes holding it liable. The appellate court agreed with the district court’s holding that, although it was common practice in the dredging industry to use only the specifications, Weeks easily could have downloaded updated NOAA charts and used local notices to mariners to check for new pipelines, and held that Weeks should have taken those precautions given the minimal burden of doing so and the risk of causing significant damage by striking a pipeline. The court also rejected Weeks’ government contractor defense, noting that the rule governed a dredger's claim against the government, not a third party's claim against a dredger. Finally the court rejected Weeks's argument that a mistake in the specifications was unforeseeable, agreeing with the district court’s implicit finding that Weeks could have anticipated an error, particularly given that there had been other cases involving accidents caused by similar omissions, and finding that the district court properly held Weeks liable because it breached its duty of reasonable care.
The government’s only issue on appeal was that an exculpatory clause in the permit, which it issued to Contango, barred recovery. Notwithstanding, a dissenting opinion from Judge Owen, the majority the language of the exculpatory clause did not suggest the government was protected from existing sources of liability independent of the permit. The appellate court held that the government's liability was independent of the permit and its issuance, so the exculpatory clause did not apply. Briefly addressing Weeks’ claims that it was liable for only 10% of the damages, the appellate court accepted the district court's finding that Weeks was 40% liable, noting that it was appropriate for the district court to find that Weeks bore a substantial portion of the responsibility because Weeks was operating its dredge at the time of the accident and the risk of causing substantial damage far outweighed the burden of downloading updated NOAA charts and using local notices to mariners to check for new pipelines. The district court’s opinion was affirmed in all respects. (5th Cir, May 28, 2015, UNPUBLISHED) 2015 U.S. App. LEXIS 8857
PLATFORM WORKER HELD NOT TO BE A SEAMAN (CONT.)
ALEXANDER V. EXPRESS ENERGY SERVICES OPERATING, LP, ET AL.
Michael Alexander commenced a maritime personal injury action, alleging he was injured when an e-line and tool assembly struck him, and asserted claims for negligence under the Jones Act, as well as claims for unseaworthiness and maintenance and cure. Alexander was employed as a lead hand for plug and abandonment operations for Express Energy Services Operating, L.P. , and he had never performed any other job during his approximate eight month employment with Express Energy. During the course of his employment with Express Energy, Alexander had been assigned to work on six different projects on five different oil wells for four different customers, and most of these projects were short-term assignments. He was never assigned to a specific platform or vessel. None of the lift boats used by Alexander were owned or operated by Express Energy, and it was Express Energy's customers that contracted for the lift boats. At the time the alleged incident occurred, Express Energy had assigned Alexander to work on fixed drilling platforms for Apache Corporation, and in connection with this assignment, Alexander was using a lift boat owned and operated by Aries Marine Corporation. The crane that was installing the e-line assembly that struck Alexander was being operated by an Aries employee and was attached to and being operated from the lift boat. Express Energy moved for summary judgment on Alexander’s seaman status, seeking dismissal of Alexander's claims against it, arguing that the evidence clearly showed that Alexander was not a seaman and that he cannot meet the two-prong showing required by Chandris. The district court found that Alexander failed to meet the first prong of the Chandristest; therefore, summary judgment was appropriate. Express Energy's motion was granted and Alexander’s claims against it were dismissed with prejudice [see June 2014 Longshore Update]. Alexander appealed from the district court's order granting Express Energy’s motion for summary judgment on seaman status, claiming the district court erred in granting summary judgment, because there were disputed issues of fact. The appellate court disagreed, finding that Alexander failed to make a showing sufficient to establish the existence of an element essential to his case. Pretermitting whether Alexander's duties contributed to the function of a vessel or the accomplishment of its mission, the appellate court concluded that Alexander had failed to demonstrate that he was a seaman under Chandris's temporal connection prong. The undisputed summary judgment evidence showed that approximately 65% of Alexander's jobs involved a fixed platform only, without the help of an adjacent vessel. Even on the other jobs involving a vessel adjacent to the platform, his work occurred mostly on the platform. The appellate court concluded that Alexander had failed to carry his burden of showing that he was a seaman and affirmed the district court's order granting Express Energy’s motion for summary judgment and dismissing Alexander's claims against Express Energy with prejudice. (5th Cir, May 7, 2015) 2015 U.S. App. LEXIS 7588
KATRINA LITIGATION - THE ONGOING SAGA
IN RE: KATRINA CANAL BREACHES LITIGATION
The district court dismissed a multitude of cases, which sought damages on behalf of homeowners against the United States Army Corps of Engineers and the United States for the allegedly negligent dredging of the Mississippi River Gulf Outlet (MRGO) channel, the overtopping of which aggravated the effects of Hurricane Katrina in the New Orleans area. The appellate court had previously rejected claims centering on the contention that the government's decision to dredge the channel as a means of maintenance was negligent [see April 2012 Longshore Update and October 2012 Longshore Update]. Plaintiffs took another appeal, seeking to distinguish their claims, now pled under the Suits in Admiralty Act, the Public Vessels Act, and the Extension of Admiralty Jurisdiction Act, on the theory that by dredging with a method called box-cutting, the government acted negligently and violated various federal and state statutes and regulations. The appellate court was not persuaded by the new arguments, noting that the decision on the method of dredging was shielded by the discretionary function exception. The appellate court observed that, while the homeowners cited a plethora of federal and state statutes and regulations, in general terms asserting that these authorities compelled the government to dredge in a manner that would protect wetlands while also limiting flooding, nowhere was particular manner or to avoid box-cutting dredging. The government's choice to engage in box-cutting dredging was accordingly shielded under both prongs of the discretionary function exception. Appellants' reliance on admiralty causes of action did nothing to salvage the insufficiency of their complaint. The district court's judgment dismissing the cases was affirmed. (5th Cir, May28, 2015,UNPUBLISHED) 2015 U.S. App. LEXIS 8856; 2015 U.S. App. LEXIS 8860
LET’S PUNT (OR, HOW TO GET RICH BY LYING) (CONT.)
JOHNSON, ET AL. V. BP EXPLORATION & PRODUCTION, INC., ET AL.
In the wake of the April 2010 Deepwater Horizon explosion, BP Exploration & Production, Inc. reached an agreement with the White House to establish the Gulf Coast Claims Facility (GCCF), an independent mechanism created to settle the numerous claims against BP, and authorized the Kenneth R. Feinberg as its Claims Administrator. Although BP authorized the GCCF to settle claims on its behalf, BP did not control the GCCF and could not prevent it from extending settlement offers. However, if the GCCF sends a claimant a determination letter offering the claimant more than $500,000 to settle his or her claims, BP had the right to appeal that offer within fourteen days from the date of the determination letter. Elton Johnson was a crew member aboard a supply vessel operated by Tidewater Marine, LLC. The vessel was mud-roped to the Deepwater Horizon and was off-loading drilling mud on the night of the blowout. Johnson claimed that he sustained physical injuries when the explosion rocked the vessel and threw him against a bulkhead. Johnson further claimed that the stress from both the explosion and his attempts to save other seamen endangered by the casualty caused him emotional injury, including post-traumatic stress disorder. Johnson sued BP for negligence in state court and BP removed the case to federal court. While Johnson's case remained pending before the district court, he submitted his claim to the GCCF. The GCCF analyzed Johnson's claim submission and calculated his damages as a total of $2,698,095 as a result of his alleged injuries. BP tendered the settlement to Tidewater, who strenuously objected. After BP's appeal period expired, Tidewater's counsel sent the GCCF a letter, complete with documentary exhibits, explaining that it had investigated Johnson's personal injury claims and had reason to believe they were fabricated. A week after the GCCF received Tidewater's letter, it retained an investigation firm to investigate Johnson's case. The investigator issued a report concluding that Johnson's claim was unsubstantiated and there was no credible evidence Johnson suffered injuries as a result of the incident. BP never sent Johnson a release to sign, and it refused to pay Johnson the settlement. Johnson insisted he would have signed the release if the GCCF had sent it to him. Displeased with BP's refusal to consummate the settlement, Johnson intervened in another case, where the court concluded that the parties never formed a valid settlement agreement. The court therefore ruled that Johnson take nothing from BP [see August 2012 Longshore Update]. Johnson appealed the district court's summary judgment order and the appellate panel ruled that the practical and prudent course of action in the case was to vacate the judgment of the district court and have that court transfer this case to MDL 2179 for disposition [see September 2013 Longshore Update]. On remand, the MDL 2179 court concluded that there was undisputed evidence that a binding settlement agreement was reached between Johnson and the GCCF acting on behalf of BP. The district court, over BP's objection, enforced a putative $2.7 million settlement agreement against BP in Johnson's favor [see April 2014 Longshore Update]. On appeal, BP asserted that the parties never formed a binding settlement agreement. In the alternative, BP argued that Johnson fraudulently induced BP into entering the settlement agreement, and that Johnson did not satisfy a condition precedent to recovery because he never signed a release. BP also claimed that the district court awarded an unreasonable rate of prejudgment interest. The appellate court held that the parties formed a binding settlement agreement, notwithstanding a vigorous dissent from Judge Owen, who argued that conclusion that a contract was formed was wrong because there was lack of mutuality. The appellate court also held that the district court correctly excused Johnson's failure to sign the release document. However, the appellate court also concluded that the district court should have held an evidentiary hearing to determine whether Johnson fraudulently induced BP into entering the settlement agreement. The appellate court found that, because BP's evidence suggested that Johnson may have submitted a wholly fabricated claim to the GCCF, BP may raise fraudulent inducement as a defense to enforcement of the settlement. The appellate court therefore affirmed the district court's order in part, but vacated the judgment and remanded for further proceedings. (5th Cir, May 13, 2015) 2015 U.S. App. LEXIS 7922
ROBINS DRY DOCK RULE APPLIES EQUALLY IN CRIMINAL MATTERS
IN RE: DEEPWATER HORIZON STATE OF VERACRUZ V. BP, PLC., ET AL.
Three Mexican states (Veracruz, Tamaulipas, and Quintana Roo) each filed suit, alleging negligence, gross negligence, negligence per se, violations of the Oil Pollution Act, private nuisance, and public nuisance, against BP, Transocean, Halliburton, Anadarko, and Cameron for damages they allegedly incurred or would sustain as a result of the Deepwater Horizon oil spill. These damages included monitoring and preparing to respond to the Deepwater Horizon oil spill; contamination and injury to the waters, estuaries, seabed, animals, plants, beaches, shorelines, etc. of the Mexican States; lost taxes, fees, etc., due to reduced fishing activity and fishing-related industries; lost taxes, etc., due to diminished tourism; and the net costs of providing increased public services. The district court granted summary judgment to defendants on the ground that the Mexican States lacked a proprietary interest sufficient to overcome application of the rule, announced in Robins Dry Dock & Repair Co. v. Flint, precluding recovery for economic loss absent a proprietary interest in physically damaged property. The Mexican States timely appealed, arguing that the district court erred in determining that the Robins Dry Dockrule was applicable to the Mexican States' claims and incorrectly held that the Mexican States lack proprietary interests in the allegedly damaged property sufficient to maintain their claims, because both BP and Transocean pled guilty to criminal conduct arising from the Deepwater Horizon disaster. The appellate court observed that, with one exception, the criminal conduct at issue here was exclusively negligent in nature. The appellate court held that, to the extent that the Robins Dry Dock rule is concerned with the prospect of runaway recovery stemming from a negligent act, there is no principled reason to distinguish between civil and criminal negligence. This was especially so with respect to the Deepwater Horizon incident, because federal law has criminalized much negligence in the context of oil spills in navigable waters. As the federal law now deems criminal virtually all negligence resulting in an oil spill in navigable waters, the appellate court found that adopting the claimants' position would transform the Robins Dry Dockrule into a meaningless assertion. The district court held that BP’s misrepresentations to Congress were not causally related to the blowout, the oil spill, or the alleged harm to the Mexican states. The appellate court agreed, noting the intent to obstruct a congressional investigation does not directly speak to the intent to cause damage to the Mexican States. The appellate court also concluded that the Mexican States failed to show that they owned the relevant property; rather the Mexican federal government was the true owner. We address these sources in turn. The appellate court held that the Robins Dry Dock doctrine barred recovery for the Mexican States, and affirmed the district court's decision. (5th Cir, May 1, 2015) 2015 U.S. App. LEXIS 7295
EMPLOYER HAS NO DUTY BEYOND THE RENDERING OF FIRST AID
SELLS V. CSX TRANSPORTATION, INC.
Larry Sells was working as a conductor for CSX, when he suffered cardiac arrest. It took the EMTs approximately thirty-five minutes to reach Sells, at which point there was nothing they could do to save his life. Sells’ estate sued CSX under FELA, alleging that CSX's negligence caused Sells' death, claiming CSX owed a duty to provide Sells with a reasonably safe workplace and that it breached that duty by failing to take reasonable measures to ensure that Sells received prompt, timely, and adequate medical attention; by failing to provide reasonably safe equipment, in that CSX failed to equip its trains with automated external defibrillators, by failing to train Sells' co-workers in cardiopulmonary resuscitation, and by failing to timely call for emergency personnel after Sells collapsed. The case proceeded to trial and the jury returned a verdict in favor of Sells’ estate, finding that CSX was negligent and that Sells was 45% comparatively negligent. Both parties filed post-trial motions. Sells’ estate asked the trial court to set aside the jury's comparative negligence finding. CSX asked the trial court to set aside the verdict and enter judgment in accordance with its motion for directed verdict made at trial. The trial court granted CSX's motion and set aside the verdict. The trial court concluded as a matter of law that CSX had no duty to take actions in anticipation of the possibility that Sells might suffer cardiac arrest and that Sells’ estate failed to provide any evidence from which a jury could reasonably conclude that CSX's response to Sells' cardiac arrest caused or contributed to his death. Sells’ estate appealed This appeal follows, arguing that the trial court erred in finding that CSX had no duty to take preventive actions in anticipation of one of its employees suffering cardiac arrest, and in finding that there was no evidence from which a reasonable jury could conclude that CSX's response to the emergency caused or contributed to Sells' death. Notwithstanding a vigorous dissent, the appellate court affirmed the trial court's entry of directed verdict for three reasons. First, Sells’ estate failed to establish that CSX had a duty to take preventative measures to guard against an employee suffering from cardiac arrest. Second, the estate failed to establish that CSX's failure to procure prompt medical assistance contributed in any way to Sells’ death. Third, although CSX, through its employees, has a duty to render basic first aid to seriously ill or injured employees, this duty did not require CSX to compel its employees to administer medical care in the form of life-saving techniques that require training and/or certification. (Fla. 1st App, May 4, 2015) 2015 Fla. App. LEXIS 6543
Updater Note: Although this is a FELA case, I chose to review it, because the appellate court’s findings here would be equally applicable to a Jones Act case. Thanks to Ken Engerrand, of Brown, Sims, Houston, TX, for sharing the case with me.
INCORRECT STANDARD OF CAUSATION AND NEGLIGENCE APPLIED
CRISWELL V. ATLANTIC RICHFIELD COMPANY, ET AL.
Timothy Criswell, as the executor of the estate of Earl J. Criswell, appealed from the orders of court granting summary judgment in favor of Atlantic Richfield Company and Sunoco, Inc., in a case involving negligence claims brought by Criswell under the Jones Act, against multiple defendants, claiming that exposure to asbestos during his time as a member of the Merchant Marine caused him to develop lung cancer. Following the close of discovery, all defendants moved for summary judgment, on the basis that Criswell could not prove exposure to asbestos on their ships. The trial court granted Atlantic's and Sunoco's motions for summary judgment only. The claims against the remaining defendants were settled prior to trial. Criswell then filed this timely appeal, in which he argued that the trial court erred by disregarding evidence of decedent's extensive exposure to asbestos insulation while serving as a merchant seaman aboard tankers and in holding that Criswell had failed to prove Atlantic’s and Sunoco’s negligence, however slight, under the Jones Act? The appellate court found that summary judgment for the vessel owners was error, because the trial court failed to view the evidence in the light most favorable to the executor in finding that he did not establish exposure. Moreover, the trial court applied the wrong standard for negligence when it found that the executor did not establish causation because the evidence was sufficient to meet the relaxed causation standard employed under the Jones Act. The appellate court’s review of the record demonstrated that the summary judgment motions should have been denied, and we reversed the trial court's determination and remanded for further proceedings. (Pa. Super, May 18, 2015) 2015 Pa. Super. LEXIS 275
DUELING DOCTORS PUT EMPLOYER AT RISK FOR PUNITIVE DAMAGES
ROWAN V. CHEM CARRIER TOWING, LLC
William J. Rowan alleged that he was injured in two accidents while working as a deckhand for Chem Carrier Towing, LLC. Rowan claimed that he initially injured his left shoulder in 2010, while working aboard one Chem Carrier vessel, and then re-injured the same shoulder again in 2011, while working aboard a different Chem Carrier vessel. Rowen also contended that he sustained a thoracic spine injury in the second incident. As a result of the alleged injuries, Rowen underwent two shoulder surgeries and thoracic spine surgery. Chem Carrier obtain two IME opinions that Rowan did not sustain any condition of the thoracic spine as a result of the second alleged injury. Rowen obtained three separate opinions that he had aggravated a pre-existing thoracic spine condition as a result of his alleged injury. Rowen underwent “emergent surgery” prior to the second employer’s IME. Chem Carriers filed the instant motion for partial summary judgment arguing that it cannot be held liable for punitive damages because it relied on the opinions of its independent medical examiners in denying Rowen’s cure demands. The court denied Chem Carriers’ motion for partial summary judgment because it found that Rowen had offered sufficient evidence to create a question of material fact as to whether Chem Carriers arbitrarily and capriciously denied his cure demand. Although Chem Carriers claimed that it relied on the opinions of multiple physicians in denying Rowen’s cure demands, the court found that Rowen had provided evidence indicating that Chem Carriers relied solely on the opinion of its initial IME physician in denying Rowen’s cure demands. Even though the post-operation report and second IME opinion supported Chem Carriers’ initial IME conclusion that Rowen’s thoracic condition was not causally related to his alleged injury, the court concluded that Rowen had provided sufficient evidence to raise a jury question as to whether the shipowner chose one doctor from many and followed his recommendation. The court also denied Chem Carriers’ motion to strike the affidavit and report of one of Rowen’s physicians, because FRCP 26(a)(2)(B)'s expert report requirement did not apply to treating physicians. (USDC EDLA, May 5, 2015) 2015 U.S. Dist. LEXIS 58646
OILY SUBSTANCE ON YOUR SHOE DOES NOT EQUATE TO IT BEING ON THE DECK
GOLDEN V. CITY OF NEW YORK
Charles Golden was employed by the City of New York as a deckhand on its sludge vessel, when he was allegedly injured when he slipped on hydraulic oil and water while crossing the deck. There were no witnesses to the alleged fall, but based upon Golden’s allegation of injury, emergency medical personnel transported Golden to the hospital, where he underwent surgery and was treated as an inpatient for two or three days. Golden's requests for maintenance and cure were all approved by the City. Golden filed a seaman’s complaint alleging Jones Act negligence and unseaworthiness. The City moved for summary judgment on Golden’s claims, arguing that Golden had provided nothing more than conjecture to establish that there was hydraulic oil on the vessel’s deck at the time of his alleged injuries. Golden testified that the cranes in use on sometimes leaked hydraulic oil, but acknowledged that from the start of his shift on to the time of his accident Golden did not see any oil, foreign substance or debris on deck near where he was injured. Golden stated that after falling he felt the residue of hydraulic oil on his boot, and that after years of experience working on wet decks, he knew it was oil rather than water that caused him to slip. The court observed that oily residue on Golden's shoe after several hours working on the vessel was not a basis for proof that the deck had any foreign substance thereon nor was it proof that any foreign substance on the deck caused him to fall. To conclude otherwise would be a speculative venture. The court concluded that Golden had failed to provide evidence to establish that a dangerous oily condition existed aboard the vessel. Even assuming that Golden did slip on hydraulic oil, there was no evidence to establish that the City had actual or constructive notice of a dangerous oily condition. In the absence of proof that the City had notice of a dangerous condition, a reasonable juror could not conclude that the City breached a duty owed to Golden. Turning to the unseaworthiness claim, the court noted that even if it were to assume that there was hydraulic oil on the deck where Golden was injured, only unreasonable slipperiness amounts to a condition of unseaworthiness. A seaman is not entitled to a deck or ladder that is free of all oil or grease. Unseaworthiness exists only when the oil or grease creates such a condition of slipperiness that the deck or stairway is no longer reasonably fit for its intended use by the crew. The court concluded there was insufficient evidence to establish a defective condition aboard the vessel, or to show that the vessel or any of its appurtenances were not fit for their intended purpose. The City's summary judgment motion was granted as to Golden's claims for Jones Act negligence and unseaworthiness, and granted without prejudice as to Golden's claim for future maintenance and cure. (USDC SDNY, May 14, 2015) 2015 U.S. Dist. LEXIS 63483
SEAMAN FABRICATED ACCIDENT TO OBTAIN PAIN MEDICATION
JOUBERT V. C & C TECHNOLOGIES, INC.
Mark A. Joubert claimed an accident and alleged injuries arising during the course and scope of his employment as a boat engineer/deckhand for C & C Technologies, Inc. Joubert was working aboard a C&C vessel, when he allegedly fell while cleaning up a room adjacent to the engine room. Joubert was diagnosed with a lumbar disc herniation at the L5-S1 level, and surgical intervention was recommended. C&C terminated maintenance and cure after its investigation showed that Joubert fabricated the accident in order to obtain Lortab, a narcotic pain medication, to which C&C alleges Joubert to be addicted. Joubert moved for partial summary judgment on the issue of the reinstatement of his maintenance and cure benefits. Joubert asked the Court to order that he undergo the recommended spinal fusion surgery, and requested that reasonable attorneys' fees be awarded due to C&C's arbitrary, willful, wanton, and/or callous termination of Joubert's benefits. C&C pointed out that Joubert had provided three varying accounts of the accident, further placing into doubt his allegation that it occurred. In addition to contesting the occurrence of the alleged accident, C&C contested Joubert's claim of injury. Joubert's own medical records demonstrated that he had presented on 22 prior occasions to local hospitals complaining of back pain and injuries, with a resulting documentation of 15 alleged accidents causing related back injuries. At every visit, Joubert requested Lortab or a similar narcotic pain medication from the treating physician. When deposed, Joubert stated that he lied all of those Joubert previously overdosed on the medication, combined with alcohol. Joubert maintains that his addiction to narcotics has no bearing on the instant matter, however, and that accident occurred as he alleged and as a result he is entitled to his benefits. Finally, C&C argued that Joubert's medical records indicated lower back problems that pre-existed his alleged accident. Joubert denied any pre-existing injury and maintained that his present disc herniation was caused by his alleged accident with C&C. The court began its analysis by noting that the parties had submitted different versions of the facts relevant to the issue of Joubert's entitlement to a reinstatement of maintenance and cure benefits. The court also noted evidence of a narcotics addiction that gave Joubert a motive to provide his physicians with false reports of pain and injury in order to obtain prescription pain medications, as well as a motive to lie about being injured in a work-related accident such as the one he maintains occurred with C&C. These disputed facts added to the controversy created by the parties, and failed to provide the court with a concrete, unquestionable explanation for Joubert's back pain and injuries subsequent to the alleged accident. Accordingly, the court denied both Joubert's and C&C's motions for summary judgment, and the maintenance and cure claim was ordered to be resolved at the trial of this case. (USDC WDLA, May 1, 2015) 2005 U.S. Dist. LEXIS 49575
IT DOESN’T MATTER IF IT’S PALLIATIVE (CONT.)
HEDGES V. FOSS MARITIME COMPANY
Jeffery Hedges allegedly injured his lower back while working for Foss Maritime Company a deckhand on a tugboat. He sued Foss for providing an unseaworthy vessel and for negligently requiring him to handle a heavy line without adequate assistance. He also claimed that Foss negligently failed to provide reasonably prompt medical attention for his injuries. Hedges underwent five surgeries following his claimed accident but allegedly continued to suffer from ongoing lower back pain and disability. Hedges’ treating physician recommended a trial spinal cord simulator (SCS) procedure. Hedges contacted Foss and requested that it pay for the treatment. Before Foss agreed to pay, it wrote to Hedges’ physician and asked him a number of questions to better understand the treatment being provided. The physician responded with a letter detailing the treatment and his reasons for why Hedges was an excellent candidate for SCS. Not convinced, Foss had its own expert evaluate Hedges' medical records and candidacy for SCS. In his report, Foss’s expert stated that SCS was a palliative technique that did not address the cause of the patient's pain. Consequently, Foss refused to authorize treatment. In response to Foss' refusal to pay, Hedges filed a motion to compel reinstatement of cure, arguing that the curative/palliative nature of the treatment was irrelevant and that Foss must continue to pay for his medical treatment until he had reached maximum cure. Foss countered by filing a motion for declaratory relief, arguing that the SCS treatment is palliative in nature. The court opined that payments for maintenance and cure can only be terminated after the seaman has unequivocally reached maximum cure. Hedges' motion to compel reinstatement of cure was granted, and Foss’s motion for declaratory relief was denied [see February 2015 Longshore Update]. Hedges subsequently underwent implantation of the trial SCS on Hedges, and Hedges sought approval for a permanent SCS to provide further functional improvement. Foss’s medical expert did not believe the permanent SCS would improve Hedges' function, and was unwarranted under the circumstances. In a subsequent proceeding, the court rejected the opinion of Foss’s medical expert, finding it lacked credibility. Instead, the court found the trial SCS did improve Hedges' function and condition primarily through pain relief, and the permanent SCS was intended to improve Hedges' function and condition. Foss was directed to authorize and pay for all treatment related to the implantation of the permanent SCS. Since the permanent SCS at issue was intended to increase Hedges' function and condition primarily through pain relief, the court concluded as a matter of law that such treatment was curative and the obligation of Foss. The court also held that Foss had failed to meet its burden of proof on the question of whether Hedges had reached maximum cure, and Foss was directed to authorize and pay for all treatment related to the implantation of the permanent SCS. Hedges' claim for compensatory damages, punitive damages and attorney's fees related to Foss's wanton and willful disregard for its obligation to pay cure was reserved for trial. (USDC WDWA, May 29, 2015) 2015 U.S. Dist. LEXIS 69940
FELA’S §60 DOES NOT PROVIDE SEAMAN A SEPARATE CAUSE OF ACTION
SOILEAU V. CROWN OILFIELD CONSTRUCTION. & MARINE
Robert Soileau filed his seaman’s lawsuit alleging claims under the general maritime law for maintenance and cure and for compensatory damages, punitive damages and attorney's fees for the alleged arbitrary refusal and/or callous failure to provide maintenance and cure and to reasonably investigate his maintenance and cure claims. Soileau also asserted an independent claim under 45 U.S.C. §60 of the Federal Employers' Liability Act ("FELA"), which voids any contract, rule, regulation, or device, the purpose, intent, or effect of which is to prevent employees from furnishing voluntary information about the facts incident to the injury of any employee, for the alleged willful, wanton and callous violation of the statute by Crown Oilfield Construction & Marine, LLC in enforcing its policies, practices, procedures, rules, and/or devices employed to prevent its employees from furnishing voluntary information to Soileau and his representatives of the facts incident to the injuries sustained by Soileau in his efforts to investigate his claims for maintenance and cure. Crown moved for dismissal of Soileau’s claims under 45 U.S.C. §60 for compensatory damages, punitive damages and attorney's fees for Crown's alleged violation of the statute. The court initially observed that §60 makes it illegal for a railroad to retaliate against an employee who helps or testifies for a co-worker in the co-worker's FELA claim, but §60 does not expressly provide a private right of action to a FELA plaintiff to recover compensatory damages, punitive damages, or attorney's fees for alleged violations of the section. To the contrary, §60 is a criminal statute designed to protect FELA witnesses from retaliation. The court noted that Soileau was not a FELA witness. Moreover, Soileau did not invoke the court's equitable jurisdiction or seek an injunction or equitable relief. Instead, he asserted an independent cause of action for damages and attorney's fees under the statute. Finding no authority for such an expansive reading of the statute, the court granted Crown’s motion to dismiss Soileau’s independent claims for compensatory damages, punitive damages and attorney's fees under §60. Furthermore, the court observed that, even if an independent cause of action for damages existed under §60, punitive damages are not recoverable under the statute. As pointed out by Crown, punitive damages are not recoverable under FELA, and by extension, are not recoverable under the Jones Act, which adopted the provisions of the FELA as the predicate for liability and damages to seamen. The court reserved Soileau’s right to argue that evidence of the statutory violation was proper in connection with his claim for punitive damages under the general maritime law for Crown's alleged failures to comply with its maintenance and cure obligations. (USDC WDLA, May 7, 2015) 2015 U.S. Dist. LEXIS 60188
SEXUALLY MOLESTED SEAMAN’S MOTION TO REOPEN HIS CASE FAILS
TRAHAN V. ABDON CALLAIS OFFSHORE, LLC
Norman Trahan was employed by Abdon Callais Offshore, LLC as a deckhand, where he was assigned to share a room with Christopher Rhine, who was aboard the vessel to prepare meals for the crew. Trahan's duties required him to work around the galley and thus around Rhine. Over the next few days, Rhine allegedly made unwelcome sexual advances toward Trahan and directed sexually-suggestive remarks to him. On one occasion, Rhine put his hands on Trahan's shoulders and offered him a massage. Rhine later allegedly fondled Trahan's genitals. Trahan reported the incident to the captain, who confronted Rhine about the incident and Rhine admitted that he had done what Trahan alleged and offered to leave the vessel. Talley accepted the offer to leave but also stated that he would not report the incident up the chain of command to keep Rhine out of trouble. Dissatisfied with the handling of his complaint, Trahan went over the captain’s head and reported the incident to Chevron's safety supervisor. Trahan was eventually terminated. Trahan filed a grievance with the Equal Employment Opportunity Commission and received a right-to-sue letter. Trahan ultimately sued Abdon Callais, alleging retaliatory discharge in violation of Title VII, 42 U.S.C. § 2000e-3(a). Abdon Callais filed a motion to stay, arguing that an arbitration agreement trumped the lawsuit and that the parties needed to proceed to arbitration. Trahan opposed the motion. After hearing oral argument, the court granted the motion to stay the lawsuit pending arbitration and the parties moved to voluntarily dismiss the lawsuit with prejudice. After the court granted the motion, Trahan moved to re-open this lawsuit, on the ground that the Federal Arbitration Act does not apply to him because he is a seaman, and set the matter for trial on the merits. The court observed that, whether or not the FAA applied to Trahan as a seaman was of no moment, as Trahan had filed his lawsuit under Title VII as an employee and not as a seaman and participated in the arbitration and agreed to the settlement of the lawsuit. Weighing the need to bring litigation to an end and the need to render just decisions on the facts, this Court chose not to re-open the litigation and denied Trahan’s motion to set the matter for trial. (USDC EDLA April 30, 2015) 2015 U.S. Dist. LEXIS 56863
MARITIME CLAIM BARRED BY STATUTE OF LIMITATIONS
PARKER V. DARBY
Gary Parker sued for negligence and alleged that he sustained personal injuries while aboard Bryan Darby's boat. Darby moved to dismiss, arguing that the statute of limitation for a maritime tort barred Parker's claim. Parker responded that the maritime limitation was inapplicable because his was not a maritime case. The court found that, because Darby satisfied both the locality test and the nexus test and because admiralty jurisdiction attached, it followed that substantive admiralty law applied. Under 46 U.S.C. §30106, a civil action for damages for personal injury arising out of a maritime tort must be brought within 3 years after the cause of action arose. Although the alleged tort occurred on or about October 25, 2011, Parker waited until January 29, 2015, to sue. In an attempt to avoid the three-year limitation, Parker argued, that the three year statute of limitations applied only to seagoing vessels, but did not apply to pleasure yachts. The court acknowledged that, while §30506 excluded certain vessels from certain limits on liability, the term “vessel” in admiralty law was not limited to ships engaged in commerce. The court held that the three-year limitation barred Parker's tort claim. Darby's motion to dismiss was granted and Parker’s complaint was dismissed with prejudice. (USDC MDFL, May 18, 2015) 2015 U.S. Dist. LEXIS 64708
ROBINS DRY DOCK DOES NOT BAR RIGHT TO EQUITABLE SUBROGATION
IN RE: MARQUETTE TRANSPORTATION GULF INLAND, LLC
Marquette Transportation Gulf-Inland, LLC brought this limitation action as owner pro hac vice of a vessel that allided with the Gross Tete Bridge, which carries traffic on Louisiana Highway 77 across the Intracoastal Waterway in Iberville Parish, Louisiana, and was at all relevant times owned and operated solely by the Louisiana Department of Transportation and Development (DOTD), a political subdivision of the State. The bridge sustained damage in the allision, necessitating its closure for repairs for approximately 80 days. (Rec. Doc. 14 at 2). The closure imposed significant detours on Iberville Parish residents for purposes of commuting, grocery shopping, and engaging in other daily activities. In an effort to alleviate the inconvenience presented by the bridge's closure, the State, through DOTD, entered into a cooperative endeavor/joint venture with the Parish and the State's Department of Wildlife and Fisheries (DWLF) "to provide an alternative means of efficient, safe, and adequate transportation to the residents of Iberville Parish and the State of Louisiana, in the form of a ferry across the Intracoastal Waterway. The agreement called for the State to furnish a state-owned and DWLF-operated passenger ferry to the Parish as an alternative means of transportation. The Parish, for its part, was to construct, maintain, staff, and obtain a site for temporary ferry landings
on both sides of the Intracoastal Waterway. Marquette moved for summary judgment, seeking dismissal of the claims asserted by Claimant-in-Limitation, Iberville Parish Council, under the doctrine of Robins Dry Dock and related progeny, which was opposed by the Parish, who argued that its claim was premised on the assertion of a theory of equitable subrogation. The court found that Robins Dry Dock made it abundantly clear that the Parish had no claim in its own right for costs and expenses associated with the acquisition and operation of the ferry landings whose development was precipitated by the closure of the Bridge. However, the court also observed that it was settled law that, where the loss sought to be recovered by a third party is actually an economic loss otherwise recoverable by the real party in interest, which loss has been shifted by way of agreement to the third party, it is properly recoverable by that party notwithstanding the Robins Dry Dock doctrine. The court concluded that, under the facts of the case, absent any argument or evidence that the damages presently sought to be recovered by the Parish are not properly recoverable economic losses by the State, or that there was some legal deficiency in the means employed for shifting the right to recover those losses to the Parish, Robins Dry Dock did not apply. The court held that Marquette had failed to establish its entitlement to judgment as a matter of law and its summary judgment motion was denied. (USDC EDLA, May 14, 2015) 2015 U.S. Dist. LEXIS 63364
TERMINATION FOR CAUSE BARS LOST WAGE CLAIMS OR NOTICE
MYCKO, ET AL. V. MY AMARULA SUN
This case concerned plaintiffs' claims to unpaid seaman's wages and related penalties. Plaintiffs alleged that the master of the defendant’s vessel wrongfully terminated them without providing the notice that their employment agreements required. Plaintiffs claimed unpaid wages for the notice period. Further, one plaintiff sued for penalty wages under 46 U.S.C. §10313(g)(1) for the master's failure to timely remit his last paycheck. Plaintiffs moved for summary judgment on their claim, which was opposed by the defendant, who contended plaintiffs were terminated for cause and that its vessel was a yacht, and therefore exempt from the statutes requirements. The court agreed and denied the plaintiffs’ summary judgment motion. The court pointed out the notice provision contained in Paragraph 3 of plaintiffs' respective employment agreement did not apply to termination for cause under Paragraph 8. As to Johnson's Section 10313(g) claim, defendant produced sufficient evidence to survive summary judgment on the question of whether the vessel is a "yacht" to which 46 U.S.C. §10313 does not apply. The court agreed with defendant that if plaintiffs were terminated for misconduct then they were entitled neither to notice nor lost wages. Defendants provided the court with affidavits tending to show that plaintiffs were in fact fired for their misconduct. Accordingly, a genuine issue of material fact exists as to plaintiffs' entitlement to these damages and the court denied summary judgment on those claims. (USDC SDFL, May 19, 2015) 2015 U.S. Dist. LEXIS 65375
ANOTHER REMOVAL ACTION BITES THE DUST
CARNES V. FRIEDE & GOLDMAN, LLC., ET AL.
David Carnes was working aboard a vessel in a shipyard, when the vessel partially capsized. Carnes claimed that he suffered serious injuries in the incident. As a result, he filed suit in state court, asserting general maritime negligence claims against multiple defendants. One of those defendants, Friede & Goldman, LLC removed the case to federal court, pursuant to 28 U.S.C. §1441(a). In response, Carnes filed a motion to remand, arguing that maritime cases filed pursuant to the saving-to-suitors clause could not be removed absent a federal question or diversity jurisdiction. Assuming arguendo that the case fell within the court's admiralty jurisdiction under 28 U.S.C. §1333, the court opined that the action was not removable under 28 U.S.C. §1441. The court observed that, although a minority of lower courts, including Ryan v. Hercules Offshore, Inc., have held that the reorganization and rewording of § 1441 had undermined the Fifth Circuit's earlier analysis of the removability of admiralty cases filed in state court, a growing majority to address the issue have declined to follow the line of decisions spawned by Ryan. Recognizing the disagreements among courts about this issue, and mindful of the Supreme Court's directive that any "'doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction,'" the court concluded that it did not have removal jurisdiction over Carnes' claims. The court declined F&G's invitation to treat claims filed in state court pursuant to general maritime law differently based on the plaintiff's status as Jones Act or a Sieracki seaman. Carnes’ motion to remand was granted. (USDC EDTX, May 11, 2015) 2015 U.S. Dist. LEXIS 63026
Quotes of the Month . . ."The Constitution only gives people the right to pursue happiness. You have to catch it yourself." --Benjamin Franklin
"Half the work that is done in this world is to make things appear what they are not." -Elias Root Beadle
"[T]he more public provisions were made for the poor, the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer."--Benjamin Franklin
Tom Langan
Risk Management Director
Weeks Marine, Inc.
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