May 2017
Notes From Your Updater - The Signal 2017 Maritime Conference will be held May 22nd-24th, at the Westin Cleveland Downtown Hotel, 777 Saint Clair Avenue NE, in Cleveland, Ohio. You may review the event agenda and event summary and register on line. The registration deadline for this great annual Longshore event is May 24, 2017.
On April 24, 2017, a petition for certiorari was filed with the U.S. Supreme Court in the case of Tanner Services, LLC v. Guidry, Docket No.16-1280, [see November 2016 Longshore Update]. The two questions presented in the case are, “Do the duties of a land-based worker, who is welding a bulkhead for a dock, “take him to sea” when his work extends no farther from land than the welding leads to his pick-up truck or the leads from a docked barge, contrary to the decisions of this Court, the Ninth Circuit, the Eleventh Circuit, and the Maryland courts?, and Can a worker who spends only 5 percent of his employment with his employer on vessels satisfy the 30 percent rule of thumb for the duration test when he had not undergone a permanent change in his essential duties, contrary to the decisions of this Court and the Fifth Circuit?” Thanks to Ken Engerrand, of Brown Sims, Houston, TX, for sharing the petition with me.
COURT CONCLUDES THERE WAS NO VIOLATION OF SCINDIADUTIES (CONT.)
MILLER V. NAVALMAR UK LTD., ET AL.
Tyrone T. Miller allegedly sustained an injury, while employed as a longshoreman by SSA Stevedoring, while working aboard a vessel owned by Navalmar (UK) Ltd. and time chartered to Grieg Star Shipping AS. Miller had stepped onto a piece of plywood he had placed over a corner gap of thirty-two-foot high stacks of Kraft Liner Board rolls. Because of the minimal support provided by the rolls, due to the large corner gap, the plywood collapsed and Miller was allegedly injured after falling the thirty-two feet to the bottom of the hold. Miller filed his §905(b) LHWCA suit in state court, contending that defendants provided a vessel with no attachments for netting, instituted procedures that did not permit the placement of plywood and airbags between tiers to arrest falls, and failed to intervene when the inadequate fall protection became apparent. Defendants invoked diversity jurisdiction and timely removed the complaint to federal court. Defendants then moved for summary judgment, maintaining they did not breach any duty owed to Miller because they turned over a reasonably safe vessel, were not actively involved in loading the cargo, were not in active control of the hold at the time of the incident, and were not required to intervene in SSA's loading operation. Miller argued that defendants failed to turn over a reasonably safe vessel because the hold did not include equipment to which netting could be secured over the corner gaps as fall protection, and had a duty to intervene in the loading process once it became apparent that loading the rolls in the chimed method would result in large, unsafe gaps in two corners. Additionally, Miller argued that Grieg's Shipping procedures constituted active involvement in the loading process. The court concluded that there was no evidence in the record that defendants breached the turnover duty, as Miller had failed to point to any evidence establishing that an expert and experienced stevedore would not be able, by the exercise of reasonable case, to carry on its cargo operations with reasonable safety to persons and property. There was no evidence in the record that stowing rolls in the chimed method without any way to attach a safety net in the larger corner voids would preclude SSA from loading the vessel with reasonable safety. After reviewing Grieg's Shipping procedures, the court concluded that defendants were not actively involved in the loading of cargo. The shipping procedures simply contained guidelines concerning the proper way to stow and secure certain types of cargo. Defendants argued that they did not have a duty to intervene in the loading process because nothing about the loading and stowage methods employed by the stevedore would have put them on notice of an unreasonable risk of harm. The court agreed, noting that Miller had failed to point to any evidence in the record establishing that defendants knew of the allegedly dangerous condition. The district court granted the defendants' motions for summary judgment [see May 2016 Longshore Update]. This appeal followed, in which Miller only alleged breach of the active control duty and the duty to intervene, having expressly abandoned his turnover duty claims. The appellate court began by pointing out that the record showed Grieg's involvement in the cargo loading operation was limited to the provision of a stowage plan to SSA and the presence of a port captain to observe the loading process. As a matter of law, this level of passive oversight is not enough to create a duty based on active involvement with cargo operations under Scindiaand its progeny. Miller presented no case law to rebut this conclusion and instead contended Grieg's use of mandatory shipping procedures represented a much greater level of control over the loading process than is typical in the shipping industry. These mandatory procedures, when coupled with the supervisory presence of Grieg personnel, constituted enough direct control over the stevedore to constitute active involvement in the cargo loading process. The appellate court found this argument unconvincing. Even if Grieg's loading instructions were mandatory, the procedures simply lacked direct operational guidance with respect to their implementation. This type of passive guidance did not constitute the direct involvement in loading operations Scindiarequired before an active control duty is imposed on the shipowner. Accordingly, the appellate court found Grieg did not owe Miller a duty of reasonable care based on its active involvement in cargo operations. As to the duty to intervene, Miller argued that the record indicates the defendants must have been aware of the dangerous voids in the corner of the vessel’s cargo hold because those voids were a necessary result of the chiming method used to store rolls of KLB. Miller also contends the defendants had actual knowledge that the stevedore was failing to remedy the hazard posed by the corner voids both because the loading procedure actively prevented SSA from ameliorating the condition and, in any event, the voids created by use of the chiming method were a necessary part of the process that the stevedore could not have remedied. The appellate court pointed out that, even if it were to assume that the defendants had actual knowledge of the dangerous condition resulting from chiming the KLB rolls in the vessel’s hull, Miller had failed to make a showing that they had actual knowledge of SSA's failure to remedy the problem. Nor did Miller suggest SSA took any abnormal action during the loading process. Most importantly, there was no indication in the record that personnel from either Navalmar or Grieg oversaw the loading operation, inspected the cargo hold, or otherwise acquired actual knowledge of the stevedore's exercise of obviously improvident judgment in failing to deal with the safety hazards posed by the large corner voids in the KLB stacks. Accordingly, the defendants were entitled to rely on the stevedore to perform his task properly without supervision. The appellate court affirmed the judgment of the district court. (11thCir, April 13, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 6372
EMPLOYER INCURS 20% PENALTY AND INTEREST FOR NOT PAYING ON ORDER
BYRGE V. PREMIUM COAL CO. INC. ET AL.
The widow of Reddin Byrge, who worked for Premium Coal Company, Inc., brought this enforcement action to enforce payment of compensation as well as penalties and interest under the Black Lung Benefits Act extension of the LHWCA. The decedent filed a claim for benefits pursuant to the BLBA and the district director's office found that Byrge was entitled to black lung benefits. Premium then sought a formal hearing before an administrative law judge (ALJ), and did not begin payment of Byrge's monthly benefits while the appeal was pending with the ALJ. As a result, the Department of Labor's Black Lung Disability Trust Fund made interim payments to Byrge. Following a formal hearing, the ALJ awarded benefits to Byrge. The ALJ's Order was received by the district director on February 14, 2013. In a letter dated March 4, 2013, to Premium Coal, the Office of Workers' Compensation stated, in relevant part, that Premium shall provide monthly benefits to the claimant beginning February 2013 at the rate of $938.30 and that Premium shall reimburse the Black Lung Disability Trust Fund the sum of $21,580.90 for interim benefits paid to the claimant from April 2011 through February 2013. Premium was also ordered to pay the claimant retroactive benefits from June 2010 through March 2011, in the amount of $9,383.00 and that failing to do so within 10 days of the date payment is due, would subject Premium to a penalty of up to 20% of the amount due. Further, failure to pay benefits as ordered may result in enforcement of the final award in Federal District Court and that any further appeal would not stay the penalty unless an Order staying payments was issued by the Board or Court. Premium appealed the ALJ's award to the Benefits Review Board. During this appeal, Premium did not pay Bryge's benefits and did not receive or request a stay. The Trust Fund continued to make interim payments Mr. Byrge. The Benefits Review Board affirmed the ALJ's award of benefits. Premium sought reconsideration, but the Board denied same. Finally, Premium petitioned the United States Sixth Circuit Court of Appeals. While the claim was still pending, Byrge passed away. Subsequently, the Sixth Circuit affirmed Byrge's award of benefits and issued its mandate on September 11, 2015. The widow moved for summary judgment to enforce the award of benefit and to order payment of penalties and interest. The widow now requests 20% additional compensation on the unpaid benefits, which results in $10,535.30 (20% of $52,675.50). Further, the widow argued that Premium owed interest on the $10,535.30 and moved for summary judgment. Premium asserted that the Longshore penalty provision punishes it for litigating the claim and argued that 33 U.S.C. §914(f) has no proper place when applied in the adjudication of a black lung claim and that it is punitive for no reason. Premium also argued that the widow’s request was time-barred or that no penalty is due. The court found that Premium’s position was not well-taken and that the 20% penalty was self-executing. In addition to the 20% penalty, the widow was also entitled to interest, but only on the additional compensation (i.e., the 20%) from March 25, 2013, 7 to February 23, 2015, when the decadent passed away, being interest on the $10,553.00. Although it was unclear if the widow was requesting interest on the lump-sum payment (and not additional compensation) that became due, however, the court noted that the widow was not entitled to interest on any payments that the Trust Fund had paid because only the Trust Fund was entitled to such interest payments. The motion for summary judgment was granted, and the court entered judgment for the widow. (USDC EDTN, March 31, 2017) 2017 U.S. Dist. LEXIS 48986
OCSLA CLAIMANT FAILS TO SHOW QUESTION OF FACT UNDER §905(B)
DUKES v. ZAFIRO MARINE, ET AL.
This litigation arose from personal injuries allegedly suffered by Joseph Dukes when he rolled his ankle climbing down a three-rung ladder from his upper bunk located in living quarters on a vessel. Dukes was employed as an Instrumentation and Electrical technician by MMR Contractors, Inc. on BP Exploration & Production Inc.'s offshore installation in the Gulf of Mexico. I&E technicians worked 12-hour shifts on the installation and spent the remaining 12 hours of the day on a large quarters vessel located near the installation. CVI Global Lux Oil and Gas SARL was or is the registered owner of quarters barge, which BP had time chartered from Harkand Gulf Contracting, LTD. The charter provided that the operation, care, and maintenance of the vessel and the equipment on the vessel were the exclusive obligation of Harkand. Dukes testified that a "BP Company Man" made the room assignments on the quarters barge. Dukes's bunk, the upper bunk with one bunk below it, was one of over 200 bunks. It had a three-rung ladder attached to the frame of the top bunk by metal "L" shaped brackets. Dukes slept in this same upper bunk and used the same ladder for at least six days until the incident that forms the basis of his lawsuit occurred. Dukes claimed he was climbing down from his upper bunk, he placed his right foot on the top rung of the ladder, but the ladder slid along the upper bunk framing to which it was attached. This sliding allegedly caused him to twist his right ankle, lose his balance, and fall to the floor. He claimed he advised the BP Company Man on the morning of his fall that he had twisted his ankle in his room, but he did not specifically tell him about having slipped on the ladder. Dukes made no reference to any fall in his official reports, nor did he suggest that the ladder had moved. He now claims in his suit that he fell and, as a consequence of his fall, he alleged that he injured not only his ankle, but has since suffered additional latent injuries to his left hip, lower back, and left shoulder. Dukes sued Zafiro Marine, alleging that Zafiro's negligence and the unseaworthiness of the quarters barge caused his ankle, leg, hip, and back injuries and sued BP, alleging that BP controlled Zafiro Marine's work pursuant to a contract and that BP's negligence, in addition to Zafiro Marine's negligence and the quarters barge’s unseaworthiness, caused his injuries. Disclaiming responsibility for the SAMPSON's seaworthiness or the safety of its living quarters, BP moved for summary judgment dismissing Dukes’ claims against it. BP argued that it was entitled to judgment as a matter of law because, as it merely time chartered the vessel, BP owed no duty to Dukes with respect to the safety of his room or the bunk ladder. BP submitted that, consistent with the contractual provisions governing their relationship, all responsibility for the condition of the bunk was vested with Harkand and none with BP. BP argued that there was no genuine dispute that, as time charterer, it did not control the physical operation of the quarters barge, nor was it responsible for the safety or seaworthiness of the vessel. Dukes countered that BP assumed a duty regarding the safety of the rooms by staffing a company man on board, who assigned the rooms and told Dukes to come to him for anything that had to do with the vessel. Because Dukes was an Outer Continental Shelf worker, the LHWCA, through the Outer Continental Shelf Lands Act, governed liability for his alleged injuries under Section 905(b). The BP-Harkand Contract confirmed the traditional allocation of responsibility of the seaworthiness of the vessel to Harkand. Nothing in the BP-Harkand Contract or Bridge Document reflects the parties' intent to shift from Harkand to time charterer, BP, responsibilities for such things as vessel seaworthiness that would alter the traditional sphere of control and responsibility sufficient to shift liability. To the contrary, the relevant provisions of these agreements indicate that operational responsibility, as well as care and maintenance of the quarters barge, was vested with Harkand. Because Dukes failed to identify a genuine dispute as to a material fact concerning BP's liability, the court found BP was entitled to judgment as a matter of law. Accordingly, BP's motion for summary judgment was granted. (USDC EDLA, April 27, 2017) 2017 U.S. Dist. LEXIS 63966
WHY CAN’T WE RECOVER OUR LONGSHORE LIEN? YOU CAN! (CONT.)
CONTINENTAL INSURANCE COMPANY V. DAWSON
David Dawson was allegedly burned while working for Hill International, Inc. in Baghdad, Iraq. Fluor Intercontinental, Inc. managed Dawson's living quarters in Iraq. Hill had an employee benefit plan which was governed by the ERISA and is fully insured by Aetna Life Insurance Company of Hartford, Connecticut. Continental Insurance Company was Hill's workers' compensation carrier, and thus was required to pay for Dawson's medical expenses under the LHWCA. Aetna was the company that provided Dawson's group health insurance through Hill and paid $282,774.51 in medical expenses incurred overseas on Dawson's behalf. Continental paid Dawson's subsequent medical expenses of $388,457.67. The Plan states Aetna has the right to be repaid for all benefits provided by the Plan on behalf of the covered person for injuries caused by a third party. Dawson filed suit against Fluor in state court. Both Continental and Aetna intervened in the state lawsuit, asserting liens against any settlement or judgment Dawson obtained against Fluor. Continental and Dawson eventually executed a settlement agreement pursuant to §8(i) of the LHWCA. Continental paid Dawson $260,759.68 in exchange for a complete discharge of its liability for compensation and past medical care arising out of the injury. The agreement further provided that Continental could recover from Dawson the full amount of its asserted lien of $388,457.67, if Dawson was awarded more than $2 million in the state case against Fluor. OWCP approved the settlement between Continental and Dawson. Dawson subsequently won a $20 million jury verdict and judgment, but Dawson entered into a confidential settlement with Fluor. At the request of the parties, the court of appeals entered a judgment setting aside the trial court's judgment and instead entered a take nothing judgment. Dawson executed an agreed judgment regarding Continental's asserted lien rights for medical benefits it paid on his behalf. He then satisfied the balance of Continental's $388,457.67 lien. Aetna filed with the OWCP a claim against Continental, seeking reimbursement under §8(i) for expenses it paid for Dawson's overseas medical care. Aetna and Continental eventually settled that dispute. Aetna agreed to assign the full value of its $282,774.51 lien against Dawson to Continental, and agreed to assist Continental in enforcing the Plan's subrogation and reimbursement provisions. In exchange, Continental paid Aetna $219,000. OWCP approved the § 8(i) settlement between Aetna and Continental. Continental requested Dawson to stipulate that Aetna's subrogation interest had been properly assigned to Continental, but Dawson refused. Continental then filed this suit against Dawson, alleging claims under ERISA as a derivative fiduciary of the Plan, seeking to enforce, as an assignee, Aetna's subrogation and reimbursement rights. Continental also sought a declaratory judgment that it had an equitable lien on Dawson's recovery in the Fluor suit, and a permanent injunction prohibiting Dawson from retaining any recovery from the Fluor settlement without first reimbursing Continental. Dawson maintained that Continental could not recover as Aetna's assignee because Continental and Dawson's earlier agreement discharged him of any further liability to Continental. The court granted Dawson summary judgment on the ground that the 2010 agreement precluded Continental from recovering as Aetna's assignee; however, the Fifth Circuit reversed, and held that Continental could recover for subrogation and reimbursement rights assigned to it by Aetna [\fs24plain see April 2016 Longshore Update]. Dawson then answered and counterclaimed, alleging that Continental breached its fiduciary duty under ERISA, by intentionally misrepresenting to Dawson that he owed Continental $282,774.51. Dawson also alleges Continental aided and abetted a breach of fiduciary duty by Aetna. Continental moved to file an amended complaint, seeking to add claims for breach of contract and a claim alleging failure to reimburse it under the LHWCA, filed a motion for partial summary judgment on its declaratory judgment claim to recover its first-money lien, and moved to dismiss Dawson's counterclaims. The parties agreed that Continental did not become a derivative fiduciary of the Plan until April 30, 2013, when Aetna assigned Continental the right to a first-money lien. Since then, Continental had pursued the first-money lien, as it was legally entitled to do. In doing so, Continental had not breached any fiduciary duty owed under ERISA. Because Dawson admits Continental had proven up the value of its lien, and the court rejected his affirmative defenses, Continental's motion for partial summary judgment was granted. The court found that Dawson's counterclaims were identical to two of his affirmative defenses: that Continental breached its fiduciary duty under ERISA and aided and abetted Aetna's breach of fiduciary duty. Therefore, Continental's motion to dismiss Dawson's counterclaims was granted. Finally, the court found that Continental’s motion to amend it complaint would be futile and denied the motion to do so. (USDC NDTX, March 31, 2017) 2017 U.S. Dist. LEXIS 48742
LONGSHOREMAN TAKES NOTHING ON HIS §905(B) CLAIM
GONZALES V. RIVER VENTURES, LLC
Angelo Gonzales, an electrician and an employee of United Bulk Terminals Davant, LLC (UBT), sought damages for injuries he allegedly sustained while being transported on a vessel by River Ventures, LLC. Gonzales had jumped from the vessel to the dock, injuring his shoulder, which eventually required two surgical interventions. As a result of this accident, Gonzales asserted a claim against American Longshore Mutual Association, Ltd. and UBT pursuant to the LHWCA. ALMA, on behalf of UBT, made payments to Gonzales in connection to these injuries pursuant to the LHWCA. Eventually, Gonzales filed a Section 905(b) complaint against River Ventures, and ALMA and UBT intervened. Following a two day bench trial the court determined that based on the testimony and evidence presented at trial and for the reasons that follow, Gonzales had not demonstrated by a preponderance of the evidence that River Ventures breached its duties to Gonzales while he was a passenger onboard its vessel. The court credited the testimony that, once the captain succeeded in turning the vessel, Gonzales could have safely stepped off from the vessel to the dock, and that this maneuver was typical, ordinary, and customary. While the court accepted testimony that the vessel bumped against the dock more than once, the court found that Gonzales did not establish that bumping against the dock constituted a failure to exercise reasonable care under the circumstances or that River Ventures had a duty to warn Gonzales of the bumps. The testimony established that bumping against a dock while "walking" the vessel and docking is a common and expected occurrence, and thus constitutes an "open-and-obvious risk." Rather, in light of the testimony and evidence presented and the relative credibility of each witness, the court found that Gonzales's injuries arose not from any breach of duty by River Ventures, but because Gonzales improperly climbed onto the offloading platform while the vessel was still moving and without permission, failed to inform the vessel’s captain that he was climbing onto the platform, and jumping down to the dock before the vessel finished "walking" into position so that Gonzales could safely disembark. The court found that Gonzales had failed to establish by a preponderance of the evidence that River Ventures breached a duty to Gonzales or that any alleged negligence of the vessel caused Gonzales's injuries. Thus, the Court concluded that River Ventures was not liable for Gonzales' injuries pursuant to Section 905(b) of the LHWCA or under the general maritime law. Accordingly, the court rendered judgment in favor of River Ventures and against Gonzales. (USDC EDLA, April 14, 2017) 2017 U.S. Dist. LEXIS 57395
COURT HOLDS STATE, NOT MARITIME LAW, APPLIES TO OCSLA CASE (CONT.)
SPISAK V. APACHE CORPORATION, ET AL.
Timothy Spisak was employed by Greene's Energy Services, LLC as a helper. Greene's entered into a contract with Apache Corporation, whereby Greene's would provide workers and equipment to flush a pipeline on an offshore platform so that an Apache oil well on the platform could be plugged and abandoned. Williams Field Services Group, LLC was the owner of the platform and Eni US Operating Co. Inc. was the operator. Apache also contracted with Stella Maris, LLC to provide an individual, Brian Ray, to accompany the Greene's crew to the platform and assist with the flushing operation. The flushing project took place on a fixed platform on the Outer Continental Shelf approximately 140 miles off the coast of Louisiana. Greene's sent a crew of five men, including Spisak, to perform the flushing operation. Spisak claimed that he was injured as the crew was rigging-down their equipment at the end of the job. As Spisak and another member of the Greene's crew were carrying a ten-foot-long section of chicksan pipe, Spisak either tripped or was pushed by the other Greene's employee on the deck of the fixed platform. Spisak eventually filed suit against multiple defendants. Defendants moved for summary judgment arguing that Louisiana state law applied in this case through the operation of the Outer Continental Shelf Lands Act (OCSLA). Spisak opposed the motion, arguing that maritime law applied. The court found that its subject matter jurisdiction was based on 33 U.S.C. §1349. Considering the evidence, the law, and the arguments of the parties, the court found that Louisiana law applied to the issues presented in this case, and granted the motion for summary judgment [see April 2017 Longshore Update]. Spisak then moved for summary judgment with regard to the liability of defendants Eni and Williams, and the cross-motion for summary judgment on the issue of liability, which was filed by Eni and Williams. After considering the evidence, the law, and the arguments presented at oral argument the court denied Spisak’s motion in its entirety, grants the defendants' motion with regard to Williams's liability and dismisses the plaintiff's claims against Williams with prejudice, and denies the defendants' motion with regard to Eni's liability on the basis that a genuine issue of material fact existed. The court found Williams had no contract with Greene's and, assuming Williams owed a duty to keep its platform free from unreasonably dangerous conditions, the evidence was undisputed, and Spisak failed to present anything from which even a reasonable inference could be drawn, that would indicate that Williams breached any legal duty it might have owed to Spisak. Even though Eni did not have a contract with Greene's, Eni had ultimate work authority over operations on the platform, including coordinating the use of access to the cranes which were essential to the safe operations of multiple contractors on the platform. The court finds that there was a genuine issue of material fact as to who denied or delayed access to the crane once the rig down procedure became necessary, how long the delay was going to be, whether it was due to divers in the water or just an arbitrary denial by "the company," whether stop work authority was attempted and thwarted, and why there was no further coordination of operations. Therefore, Eni failed to carry its burden of showing that it is entitled to judgment as a matter of law, and summary judgment in its favor is not warranted. For the same reasons, Spisak failed to carry his burden of showing that he is entitled to judgment as a matter of law, and he is also not entitled to summary judgment in his favor. (USDC WDLA, April 5, 2017) 2017 U.S. Dist. LEXIS 52621
COURT DISMISSES PREEMPTIVE DECLARATORY JUDGMENT ACTION
COASTAL DRILLING COMPANY, LLC V. CREEL
Coastal Drilling Company employed Brandon Creel as a floorhand on an inland waters drill barge. Creel reported that he was involved in an accident on the drill floor, and alleged that he sustained injuries to his neck, right shoulder, multiple sections of his spine, and his hips. Coastal received a notice of representation from Creel's attorney in regard to the assertion of a LHWCA claim. The following week, Creel's attorney requested that Coastal authorize follow up care with a physician of Creel's choice, which Coastal approved. When Creel did not return to work, Coastal began maintenance payments to Creel. But Coastal also began surveillance on Creel to determine if his activities were consistent with his complained-of injuries. Creel was observed and documented engaging in physical activity inconsistent with his alleged injuries. After Creel sought authorization from Coastal for the right shoulder surgery, Coastal scheduled an independent medical evaluation. During the IME, Creel allegedly made statements inconsistent with the physical activity observed through surveillance. The IME report stated that there was no evidence that Creel required right shoulder surgery, and after reviewing the surveillance footage, the IME physician stated that he would not recommend surgery and file a declaratory judgment action seeking declaratory relief that Creel was not entitled to maintenance and cure, damages, punitive damages, or attorney fees, and that Creel is obligated to reimburse Coastal for the maintenance already paid. Creel moved to dismiss Coastal's action, arguing that as a Jones Act seaman he has the right to have a jury decide his maintenance and cure claim, and that granting Coastal's declaratory judgment would deprive Creel of his right to a trial. Creel then filed a Jones Act complaint against Coastal and Peak Energy, LLC, seeking maintenance and cure, damages, punitive damages, and attorney's fees. After considering the Trejofactors, the court found that the factors articulated by Trejowarranted the dismissal of Coastal's declaratory action and that Coastal's arguments against dismissal were unavailing. The court pointed out that its conclusion was consistent with the well-established practice of courts in the district to dismiss preemptive declaratory judgment actions in maritime personal injury cases. Creed’s motion to dismiss was granted. (USDC EDLA, April 4, 2017) 2017 U.S. Dist. LEXIS 51116
COURT ALLOWS DEFENDANT OUT OF CASE DESPITE PLAINTIFF’S PROTESTS
MENARD V. LLOG EXPLORATION COMPANY, LLC, ET AL.
Corey Menard was employed as a senior field technician by Gly-Tech Services, and was assigned to work offshore on LLOG Exploration Company’s semi-submersible oil-exploration platform. Menard was aboard a support vessel adjacent to the platform, in high winds and rough seas, when he used a personnel basket transfer to get on the platform. Menard alleged that during his attempted transfer, the extremely rough seas caused the personnel basket to abruptly thrust upward and slam him, allegedly injuring his lower back. Menard sued Grand Isle Shipyard, Gibson Applied Technology, and LLOG, alleging that their negligence caused his injury. Menard later added Adriatic Marine, LLC, the owner and operator of the support vessel, and Wood Group Production Services, Inc., the entity responsible for operations on the platform, as defendants. Menard sought a judgment of $3,000,000, punitive damages, attorneys' fees, and costs. LLOG moved for summary judgment on Menard's claims, arguing that there was no evidence of negligence attributable to any of the LLOG entities that caused or contributed to Menard's alleged injuries, and that as a matter of law LLOG was not liable for any negligent acts by the other defendants. Menard responded in opposition, and separately moved the court to delay or defer consideration of LLOG's motion so that he could obtain additional discovery. LLOG replied, and filed an opposition to the request to delay consideration of its summary judgment motion. The court initially pointed out that Menard’s motion did not identify what specific facts he sought, much less explain how those unspecified facts would influence the outcome of LLOG's summary judgment motion. Plaintiff's desire for additional information, without more, does not warrant a continuance under Rule 56(d) as the rule does not condone a fishing expedition where a plaintiff merely hopes to uncover some possible evidence of value. Because Menard's motion was both procedurally and substantively defective, the court declined to delay or defer consideration of LLOG's motion for summary judgment. The court determined that general maritime law applied to Menard’s negligence claims. To establish maritime negligence, a plaintiff must demonstrate that there was a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by the plaintiff, and a causal connection between the defendant's conduct and the plaintiff's injury. LLOG argued that there is no evidence of any negligence attributable to any of the LLOG entities that caused or contributed to Menard’s alleged injuries. In support, LLOG submitted the affidavit of its offshore construction manager, attesting that there were no employees of any of the LLOG entities on either platform or the support vessel and the two cranes that are used in personnel basket transfers were not operated by LLOG employees, and that no crane defects were reported to LLOG. Therefore, not only was there no evidence that LLOG required Menard to make the personnel basket transfer at issue, but also there is no evidence that any LLOG employee was present at the time of the accident or directly influenced the decision to make the personnel basket transfer. Given this absence of evidence, any argument that LLOG should be liable for Menard's injuries was based on either holding LLOG liable for the acts of its contractor Wood Group, or liable as the time charterer of the support vessel. The plain text of the time charter agreement for the supply vessel contained nothing indicating that LLOG had control over decisions related to personnel transfers, and expressly reserved the exclusive operation, navigation, management, control, performance and use of the supply vessel to Adriatic. Finally, Menard argued that at this stage he is entitled to all reasonable inferences, and that with all reasonable inferences in his favor, there were genuine issues of material fact that should preclude summary judgment. However, the court found that Menard failed to point to any such reasonable or justifiable inferences that can be drawn from the record. LLOG's motion for summary judgment was granted. (USDC EDLA, April 10, 2017) 2017 U.S. Dist. LEXIS 54337
COURT HOLDS THAT THE LHWCA BARS CONTRIBUTION CLAIMS
ARBOGAST ET AL. V. GEORGIA PACIFIC LLC ET AL.
Georgia- Pacific, LLC and MCIC, Inc. filed third-party complaint claims of contribution based upon A LHWCA-covered decedent's state-court complaint against CSX Transportation, Inc. under the Federal Employers Liability Act, 45 U.S.C. §51 et seq., and the Locomotive Inspection Act, 49 U.S.C. §20701 et seq., in which they asserted that CSX was a joint tortfeasor and therefore liable to Georgia-Pacific and MCIC if they were found liable to plaintiffs for the mesothelioma injury allegedly suffered by the Charles L. Arbogast, Jr., while in CSX's employ. CSX moved to dismiss or for summary judgment on or, in the alternative, motion to strike or sever the third-party complaints filed against CSX by defendants, arguing it was immune from tort liability due to its acknowledged statutory liability under the LHWCA. , 33 U.S.C. §§ 901-950. CSX argued that the statutory liability to which it was subject is not based upon fault. Further, the LHWCA statutory liability excluded all other liability against the employer. Georgia-Pacific and MCIC tried to circumvent this statutory immunity by claiming that they were suing based, not upon any employment by CSX of Arbogast that would fall within the statute's scope, but instead upon the part of Arbogast's employment with CSX that was non-maritime. The Court was unpersuaded that it was right to apportion liability between CSX's employment of Arbogast subject to the LHWCA and CSX's employment of Arbogast not subject to the LHWCA, citing Stanley v. W. Md. Ry. Co., which rejected a similar apportionment argument, noting the court declined to limit LHWCA immunity from liability to that portion of the plaintiff's employment which fell under the Act; instead, all of his employment with the same employer was covered, which barred his separate claim under the FELA. To the extent the defendants suggested that the court should look behind the Department of Labor's determination that Arbogast's employment with CSX was within its jurisdiction under the LHWCA, the court rejected the suggestion. If, in the Department's opinion, Arbogast's claim is within the purview of the LHWCA, the court held that it would defer to its determination. Consequently, the court held that the exclusivity provision of the LHWCA precluded defendants' contribution claims against CSX and that CSX had shown that no genuine dispute of material fact existed and that it was entitled to judgment as a matter of law on the third-party complaints of Georgia-Pacific and MCIC for contribution. (USDC DMD, April 24, 2017) 2017 U.S. Dist. LEXIS 62255
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #279. Although you get great up-to-date information as a subscriber to the Longshore Update, you can use this excellent resource to keep your Judges’ Benchbook up to date. Just follow the above link to the OALJ web site.
The last full supplement to the Longshore Benchbook was published in January 2005. However, OALJ has published an index that provides a cross-reference between Benchbook Topics and U.S. Supreme Court, Federal District and Circuit Courts, and Benefits Review Board decisions, issued since 2004 and covered in OALJ's "Recent Significant Decisions Monthly Digest."
And on the Admiralty front . . .
PUNITIVE DAMAGES NOT RECOVERABLE IN UNSEAWORTHINESS CASES (CONT.)
MCBRIDE, ET AL. V. ESTIS WELL SERVICE, LLC
An Estis Well Service, LLC crew was attempting to straighten the twisted monkey board in the derrick, when the pipe in the derrick shifted, and the derrick and rig fell over. One crew member died, and three more claimed that they were injured. Skye Sonnier died and Haleigh Janee McBride sued Estis in her capacity as the administratrix of Sonnier's estate and on behalf of Sonnier's minor child. Saul Touchet claimed that he sustained both physical and psychological injuries. Brian Joseph Suire and Joshua Bourque claimed that they sustained psychological injuries because they were present when the incident occurred. All of the plaintiffs sought to recover under the Jones Act for Estis's alleged negligence, and all of them sought to recover under the general maritime law for the alleged unseaworthiness of the vessel, as well as punitive and/or exemplary damages due to Estis's alleged gross, willful, wanton, and/or reckless conduct that allegedly constituted a callous disregard of, or showed indifference to, the safety of the crew members. Estis moved to dismiss the plaintiffs’ cause of action for punitive damages and the cases were consolidated solely on the issue of the availability, or not, of a punitive damages remedy under the Jones Act and/or general maritime law. The district court found that nothing in Townsendmade punitive damages available to the plaintiffs or abrogated the jurisprudential authority holding that punitive damages are not available for an unseaworthiness cause of action. Therefore, the court held that, to the extent the plaintiffs in the consolidated action sought to recover punitive damages, they had failed to present a plausible claim for relief. Accordingly, the defendant's motion to dismiss was granted, and the plaintiffs' claims for punitive damages were dismissed [see June 2012 Longshore Update]. On appeal, a panel of the Fifth Circuit reversed the district court’s ruling, finding that Townsendestablished a straightforward rule going forward: if a general maritime law cause of action and remedy were established before the passage of the Jones Act, and the Jones Act did not address that cause of action or remedy, then that remedy remained available under that cause of action unless and until Congress intercedes. Like maintenance and cure, the appellate panel noted that unseaworthiness was established as a general maritime claim before the passage of the Jones Act, punitive damages were available under general maritime law, and the Jones Act does not address unseaworthiness or limit its remedies. Therefore, the appellate panel concluded that punitive damages remained available to seamen as a remedy for the general maritime law claim of unseaworthiness [see November 2013 Longshore Update]. The entire Fifth Circuit took the case en banc to decide whether the seaman plaintiffs in the case, both the injured seamen and the personal representative of the deceased seaman, could recover punitive damages under either the Jones Act or the general maritime law. Notwithstanding a vigorous dissent by six of the appellate court judges, the majority en banc appellate court affirmed the district court and concluded that the case was controlled by the Supreme Court's decision in Miles v. Apex Marine Corp., which held that the Jones Act limits a seaman's recovery to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness. The en bancappellate court rejected the argument that Townsend overruled Miles, finding instead that the Townsend Court carefully distinguished its facts from Miles and reaffirmed that Miles is still good law. Finally, the en banc appellate court rejected the argument that punitive damages should be treated as pecuniary damages, noting that there was no legal authority whatever to support this argument and holding that punitive damages simply did not fit under the case law as a subset of pecuniary losses. Because punitive damages are non-pecuniary losses, the en banc appellate court held that punitive damages may not be recovered by the plaintiffs [see October 2014 Longshore Update]. Following remand, the district court made findings of fact and conclusions of law on the record, and awarded damages to McBride and both damages and cure to Touchet. On McBride's claims, the district court ordered Estis to pay damages for, among other things, loss of past support, loss of future support, and survival damages for pre-death fear and conscious pain and suffering. On Touchet's claims, the district court ordered Estis to pay damages for, among other things, future lost earnings / loss of earning capacity and future medical expenses, and to additionally pay cure until Touchet reached maximum medical improvement. Estis appealed the district court's judgment on these specific awards, contending first that the pre-death pain and suffering award was erroneous, because there was evidence that Sonnier was unconscious. On the issue of an award for loss of past and future support of the decedent’s daughter the defendant’s basis for appeal was the contention that evidence was speculative and was not based on competent evidence. Finally Estis contended that it was improper to award future medical expenses beyond maximum medical improvement, because it ordered the defendant to pay cure for an indefinite period of time, including a lump-sum award for future expenses. The case came before the appellate court for a second time on the issue of whether the district court properly awarded damages under the Jones Act to Sonnier’s estate and minor child and awarded damages to Touchet. The appellate court held that the district court's finding of pre-death fear and conscious pain and suffering as to the decedent was not clearly erroneous given the testimony of eyewitnesses who saw Sonnier fleeing and the pathologist who performed the autopsy of the crew member. Additionally, the district court did not erroneously award damages for loss of past and future support for Sonnier’s minor child. Finally, the appellate court held that the district court properly awarded Touchet future cure payments and future medical expenses, until he reached maximum medical improvement, and future lost earnings. The district court’s judgment was affirmed in all respects. (5th Cir, April 10, 2017) 2017 U.S. App. LEXIS 6159
Updater Note: This most recent appellate opinion in McBride addresses several important issues relative to wrongful death damages and maintenance and cure that were not addressed in the interlocutory appeal that held that punitive damages were not available in seamen’s causes of action for death or injury. The Fifth Circuit affirmed the trial court’s award under the Jones Act to an estate for the decedent’s pre-death fear and pain and suffering, irrespective of evidence that the decedent might not have been conscious after impact, as there was evidence that Sonnier was aware of the danger and was running for his life immediately prior to impact, and photographs from the scene showed that his body was positioned in such a way that his left arm was raised in a defensive posture to protect himself. The Fifth Circuit also rejected contentions that damages for loss of support must be limited to child support obligations. Additionally, the Fifth Circuit found that a plaintiff can be awarded both cure and tort damages for future medical expenses, so long as no duplication will occur, because the cure obligation is independent of tort law.
APPELLATE COURT HOLDS DISTRICT COURT ERRED IN FINDING SEAMAN STATUS
HALLE, ET AL. V. GALLIANO MARINE SERVICE, LLC
Kyle Halle sued Galliano Marine Service, LLC and C-Innovation, LLC under the Fair Labor Standards Act to recover unpaid wages for overtime worked during his employment at C-Innovation. The defendants ran a remotely operated vehicle (ROV) business for offshore applications and employed Halle as an ROV Technician and ROV Supervisor. ROVs are unoccupied mechanical devices used, among other things, to fix, service, and repair offshore, underwater drilling rigs. They are generally used to perform tasks that otherwise could not be performed by human divers because of depth or water conditions. Technicians like Halle navigate and control ROVs aboard an ROV Support Vessel, to which the ROVs remain tethered while in use. The technicians who steer the ROVs work inside a windowless shipping container converted into an ROV command center located on the support vessel. The district court granted summary judgment against Halle because it concluded that Halle qualified as a "seaman" under the FLSA and was thus exempt from the Act's overtime. Thereafter, Halle filed a motion for reconsideration, which was denied. Halle appealed the district court’s ruling. The appellate court began its analysis by noting that the definition of "seaman" in the Jones Act was not equivalent to that in the FLSA. Given these differences, it was error for a court to resolve an FLSA case by resorting to legal standards, such as the definition of a "seaman" or an "appurtenance," from Jones Act case law. The appellate court pointed out that the district court seemingly equated the ROVs with "vessels" and concluded that Halle's direction and command of the ROVs satisfied one element of the FLSA requirement. But there was no evidence to suggest that ROVs are vessels. The only "vessel" in this case was the ROV Support Vessel. And according to Halle's sworn declaration, he was not subject to the support vessel's chain of command and did not report to the support vessel's captain. The second prong of the FLSA requirement asks whether the employee's service is primarily offered to aid the vessel as a means of transportation. The appellate court declined to equate maintenance, repair, or navigation of superficially attached machinery (here, the ROVs) with maintenance, repair, or navigation of the support vessel. In its order denying Halle's request for reconsideration, the district court relied primarily on Coffin to reaffirm its conclusion that Halle was a seaman. But the appellate court pointed out that facts in this case were acutely distinct from those in Coffin. It was true that both the tankermen in Coffin and the ROV Technicians in this case lived and worked on a vessel. But the similarities ended there. While the tankermen in Coffin were members of the ship's crew and answered to the captain, the ROV Technicians here had a completely separate command structure. Accordingly, the appellate court held that the district court erred in granting the defendant's motion for summary judgment as it had not been established as a matter of law that the seaman exemption applied. The appellate court reversed the district court's summary judgment and remanded the case for further proceedings. (5th Cir, April 19, 2017) 2017 U.S. App. LEXIS 6833
APPELLATE COURT REVERSES JNOV GRANTING SEAMAN NEGLIGENCE PER SE
GHALEB V. AMERICAN STEAMSHIP COMPANY
Abdulmokne Ghaleb sued American Steamship under the Jones Act, for an injury that he allegedly suffered working aboard its tugboat-and-barge combination. As the crew stored those vessels for the winter, Ghaleb's fellow employees supposedly dropped a heavy cable which slid into his heels, knocking him to the ground. At trial, Ghaleb pursued various liability theories based on this cable incident, including a negligence per se claim alleging that the crew's excessive work hours contributed to the accident. Ghaleb's negligence theories centered on whether the vessel’s chief placed Ghaleb in an unsafe position where the cable's loose end might strike him if dropped—a so-called "danger zone." He based his negligence per se theory on American Steamship's alleged violations of a work-hours statute regulating Great Lakes towing vessels. After nine days of trial, a unanimous jury rejected Ghaleb's claims. Despite this verdict, the district court granted Ghaleb's motion for judgment as a matter of law on negligence per se. The court held that a reasonable jury could find only that the crew members involved in the incident all worked more than the hours permitted by the statute in the days leading up to Ghaleb’s accident. American Steamship appealed the district court's decision to enter judgment notwithstanding the verdict on Ghaleb's negligence per se claim. The appellate court began by observing that, for Ghaleb to be entitled to judgment as a matter of law (JMOL), he must show that no reasonable jury could find that statutory violations lacked any contributory role in his accident. Because Ghaleb predicates negligence per se liability on work-hours violations, this essentially meant that if the jury could find that no sailor's fatigue played a causal role in his accident, Ghaleb was not entitled to JMOL. Here, the evidence presented on each sailor allowed a reasonable jury to conclude that this was either a faultless accident or an accident unrelated to fatigue. Further, the district court's decision to find a causal relationship as a matter of law was particularly troubling given that Ghaleb never asserted that his behavior led to the accident or that he made any mistake because of fatigue. Essentially, the district court fashioned a theory for Ghaleb entirely on its own. Whether the jury believed Ghaleb made a mistake unaided by fatigue or acted prudently, either conclusion was reasonable. Notwithstanding a vigorous dissent, the majority of the panel found that Ghaleb had two weeks at trial to prove to the jury by a preponderance of the evidence that someone's fatigue contributed to his accident. After the jury rejected this claim, he bore the burden to show that it could not reasonably come to any different conclusion. Ghaleb failed both times. Therefore, the appellate court reversed the district court's decision granting judgment as a matter of law to Ghaleb and remanded with instructions to enter judgment for American Steamship. (6th Cir, March 31, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 5645
COURT ALLOWS VOLUNTARY NON-SUIT WHILE SUMMARY JUDGMENT PENDING
GUTIERREZ V. ICICLE SEAFOODS, INC.
Carlos Gutierrez developed a sore throat while working as a processor on one of Icicle Seafoods. Inc’s commercial fishing vessels. Over the next few days, Gutierrez's flu-like symptoms worsened. About eight days after his symptoms began, he was taken off the boat and flown by medical aircraft to Anchorage and then to a hospital in Seattle, Washington. There, doctors diagnosed him with a life-threatening illness and performed surgery. Gutierrez sued Icicle. He asserted several claims, including negligence under the Jones Act, unseaworthiness, and failure to pay maintenance and cure. After extensive discovery, Icicle moved for summary judgment. Gutierrez filed a comprehensive response to the motion. Two days later, Gutierrez moved for a voluntary non-suit. Over Icicle's objection, the trial court granted the motion. It dismissed Gutierrez's negligence and unseaworthiness claims without prejudice but dismissed Gutierrez's failure to pay maintenance and cure claim with prejudice because Gutierrez had withdrawn that claim in his summary judgment response. Icicle appealed the decision, claiming that Gutierrez lost the right to request this relief by filing a response to Icicle's summary judgment motion. The appellate court ruled that, because Gutierrez made his request before the scheduled hearing on Icicle's motion had started, the summary judgment motion had not been submitted to the trial court for decision. Thus, Gutierrez retained his right to a voluntary non-suit. The appellate court also noted that Icicle had not shown that the trial court committed any error in dismissing only one claim with prejudice or that it abused its discretion in declining to retain jurisdiction to consider Icicle's motion. Thus, the appellate court affirmed the trial court. (Wash. 1st App. Ct, April 3, 2017) 2017 Wash. App. LEXIS 782
APPELLATE COURT UPHOLDS FORUM SELECTION CLAUSE
DURKOVIC V. PARK WEST GALLERIES, INC.
Gojko Durkovic, a Serbian national and resident, filed a personal injury action against Park West Galleries, Inc., alleging he injured his back while under contract to conduct art auctions on cruise ships. The trial court's dismissed his case pursuant to a mandatory forum selection clause. The forum selection clause at issue provided that all legal proceedings by either party relating to the contract will be brought in the Turks and Caicos Islands, except that Park West may be sued in other forums for the limited purpose of obtaining an injunction prohibiting him from violating the confidentiality and non-compete provisions of the contract. Following the trial court’s ruling, Durkovic appealed, contending that the venue provision at issue was so one-sided as to be unconscionable. For the purposes of reviewing the appeal, the appellate court accepted as true Durkovic’s allegation that he had the status of a seaman under the Jones Act; however, it declined to adopt Durkovic’s position that the Jones Act per se prohibited a seaman who is a foreign national residing outside the United States from being bound by a contract provision mandating a specific foreign forum for disputes under the contract. The appellate court held that the mandatory forum selection clause was valid and enforceable unless the chosen forum is unjust and unreasonable in the sense that it constituted no forum at all. The Turks and Caicos Islands are a British Overseas Territory whose courts are part of the British common law system. Appeals from the highest courts in the Turks and Caicos Islands lie with the highest courts in the United Kingdom of Great Britain and Northern Ireland. The affidavits on file in the record supported the conclusion that the courts of the Turks and Caicos Islands were capable of deciding the choice of law issues, determining whether the contractual provisions limiting liability and recovery are operative, and applying the Jones Act, if appropriate. The trial court’s order was affirmed. (Fla. 3rdApp. Ct., April 5, 2017) 2017 Fla. App. LEXIS 4652
SUMMARY JUDGMENT FOUND TO HAVE BEEN IMPROVIDENTLY GRANTED
LEDET V. PARKER DRILLING OFFSHORE USA, LLC, ET AL.
This action for personal injury damages arose out of an incident between a commercial vessel and a small recreational boat. Stephen Ledet and his minor son, Zander Ledet, were passengers on a small 16-foot aluminum center-console recreational boat being operated by Stephen's brother, Kent Ledet. At the same time, a 46.5-foot crew boat owned by Parker Drilling Offshore USA, LLC and operated by its employee, Captain Richard Rowe, was on the same waterway. As a result of an encounter with the stern wake created by the Parker Drilling vessel, the plaintiffs were allegedly thrown around in the Ledet vessel and sustained alleged physical and mental injuries. Ledet, individually and on behalf of his minor son, filed a petition for damages, alleging that Parker Drilling and Rowe allowed its vessel to travel in an unreasonable and unsafe manner and provided facts to support the allegations based on general negligence principles under both federal and state law. The plaintiffs further alleged the defendants' actions were willful and reckless, constituted gross negligence, and exhibited callous and grave disregard for the rights of the plaintiffs and others in the vicinity of the incident site; thus, entitling plaintiffs to recover exemplary and punitive damages under Louisiana law and general maritime law. Following discovery, Parker Drilling and Rowe filed a joint motion for summary judgment and judgment was rendered granting the motion for summary judgment in favor of the defendants, and dismissing the plaintiffs' claims with prejudice, finding Ledet failed to prove that any duty owed by the commercial vessel was breached, thus the defendants were not negligent and were not liable for the plaintiffs' injuries. A motion for new trial/reconsideration was s denied by the district court. Ledet appealed the judgment granting summary judgment in favor of the defendants and dismissing Ledet’s claims with prejudice. The appellate court began its analysis by noting that, in analyzing the alleged liability of the defendants in the case, during the hearing on the motion for summary judgment, the district court focused primarily on the issue it determined to be the pivotal one in determining the defendants' alleged liability, to wit, whether the Ledet vessel was overtaking or attempting to overtake the Parker Drilling vessel prior to the incident. The district court ultimately found that the Ledet vessel was, in fact, overtaking, and granted summary judgment primarily on that basis. However, the appellate court observed that the actions of the Ledet vessel vis a vis the Parker Drilling vessel were in dispute. The facts asserted and the evidence revealed factual disputes, the resolution of which necessarily involved factual credibility determinations and weight given to the evidence. In granting summary judgment in this matter, the district court had to weigh the credibility of Rowe against that of the Ledet brothers, whose testimony was also internally inconsistent. Thus, the appellate court found that the district court committed reversible error in resolving disputed factual issues in granting summary judgment. The district court rendered judgment based only on the overtaking issue, albeit erroneously, and in so doing, the court failed to address or consider the numerous allegations of fact based on the other alleged rule violations and general negligence principles. Moreover, those allegations were largely based on facts that were disputed, the resolution of which required the application of the navigational rules and will likely require credibility determinations and the weighing of evidence, also improper on summary judgment. The appellate court held that summary judgment was improperly granted. Accordingly, the judgment of the district court was reversed and the case was remanded for further proceedings. (La. 1st App. Ct, April 12, 2017, UNPUBLISHED) 2017 La. App. Unpub. LEXIS 115
MORE MAINTENANCE & CURE CLAIMS NEED TO BE ADJUDICATED LIKE THIS
ARMSTRONG V. OFFSHORE SPECIALTY FABRICATORS ET AL.
Charles Armstrong III was a mechanic seaman and a member of the crew of a vessel owned and operated by Offshore Specialty Fabricators (OSF). Armstrong allegedly injured his wrist while refueling a generator using a fuel hose, when the fuel hose caught and twisted around in his hands. There were no witnesses to the accident or resulting injury and Armstrong failed to immediately report it, completing the remainder of his hitch. Armstrong initially believed the injury was a minor strain or pull. Armstrong allegedly re-injured his wrist when he attempted to throw a bag of his belongings off of his personal boat as he was preparing to leave for his next hitch with OSF. Following his second alleged injury, Armstrong saw a doctor for the first time, was given a steroid injection pain medication and a wrist splint. Armstrong thereafter contacted OSF and informed them that he needed time off from work due to his alleged injuries. In light of Armstrong's failure to fill out an accident report after the incident on the vessel or report his injury to OSF until about three weeks later, OSF initially refused to pay maintenance and cure. However, OSF eventually agreed to pay maintenance and cure relating to Armstrong's wrist injury. On referral from an attorney he retained, new physicians diagnosed carpel tunnel syndrome, a labral tear, a neck condition and psychological problems. Armstrong underwent surgery for a carpal tunnel release. OSF agreed to pay Armstrong cure relating to his wrist injury, including the surgery already performed, and paid maintenance in the amount of $30 per day. Armstrong brought a formal claim for maintenance and cure, along with claims for claims for unseaworthiness, Jones Act negligence, and spoliation of evidence. Following a hearing, the court granted OSF’s motion for judgment on partial findings as to Armstrong’s neck injury, finding that there was no evidence linking the alleged neck injury to the incident on the vessel. The court also held, based on the findings of fact, Armstrong did not sustain an injury to his shoulder aboard the vessel. Armstrong argued that he was entitled to an increase in maintenance payments because his monthly expenses far exceeded the $30.00 per day that OSF was currently paying. However, the court pointed out that Armstrong’s calculations included items other than the food and lodging intended to be covered by maintenance. Armstrong’s food and lodging expenses amounted to approximately $29.65 per day. Accordingly, the court held that Armstrong was not entitled to an increase in maintenance payments. Because the court has found that Armstrong did not sustain a shoulder or neck injury aboard the vessel, he was not entitled to additional cure, as his wrist condition had reached maximum medical improvement. Finally, the court held that OSF’s initial refusal to pay maintenance and cure was not arbitrary or capricious in light of the court’s holdings. In addition, its delay in paying maintenance and cure for Armstrong’s wrist injury was justified, in light of Armstrong’s failure to report the accident or injury for several weeks. Armstrong’s maintenance and cure claim was dismissed with prejudice. (USDC EDLA, April 17, 2017) 2017 U.S. Dist. LEXIS 58057
COURT GRANTS SUMMARY JUDGMENT ON MCCORPENDEFENSE (CONT.)
CENAC MARINE SERVICES, LLC V. CLARK
Jason Clark applied for a position as a tankerman with Cenac Marine Services, LLC. As part of the application, Clark underwent a pre-employment physical, where he answered sixteen questions posed in the physical form and fifty-two questions posed in a medical history form. Clark signed the questionnaires and certified that the information on the forms was correct and truthful. The only medical history Clark indicated during this physical, both to the screening doctor and on the questionnaires, was a prior hernia with repair. He certified he had no prior back injuries or back pain. Less than a month later, Clark completed a Cenac accident report form, alleging that he had injured his back the day before, when he was moving a cross-over hose without the help of his deckhand. The accident report form asked whether the employee submitting the form had ever hurt the area of the body allegedly injured in the report, meaning his back. Clark answered "no" to this question, again certifying that he had never injured his back before the accident. After Cenac deposed Clark and in the course of discovery following the filing of Clark's lawsuit, Cenac obtained medical records relating to treatment of Clark after he was in a vehicle accident, reporting low back pain and left shoulder pain. Cenac terminated Clark's employment for his failure to communicate and report for work, poor performance evaluations, and various violations of Cenac's safety rules during his employment. Following his termination, Clark retained counsel, sought additional medical attention, and demanded maintenance and cure. Cenac agreed to pay maintenance and cure to avoid punitive damages, but informed Clark's counsel that it was doing so "under protest" with a full reservation of all rights to seek reimbursement. Cenac was first to file suit, seeking a declaratory judgment that Cenac was not obligated to pay Clark maintenance and cure benefits. Clark then filed a lawsuit against Cenac, alleging Jones Act and unseaworthiness claims, as well as claims for maintenance and cure and punitive damages for failure to pay maintenance and cure. Cenac moved for summary judgment on Clark's maintenance and cure and related punitive damages claims. Additionally, Cenac moved for leave to file a counterclaim against Clark for an offset from any recovery he may be awarded for maintenance and cure payments it made to Clark. The court could not find a genuine issue of material fact as to whether there was intentional concealment, a material factor in hiring and a causal nexus between the concealed injury and the complained-of injury. Accordingly, the court held that Cenac successfully employed the McCorpendefense. The court granted Cenac’s motion to file a counterclaim, but noted that by granting leave to file a counterclaim the court was not ruling on the legal viability of the counterclaim itself. Cenac's motions for partial summary judgment and leave to file a counterclaim were granted. Clark’s maintenance and cure claims and related punitive damages claims were dismissed with prejudice. Cenac's counterclaim for an offset of maintenance and cure payments against any damages Clark recovers was ordered to be filed in the record and tried with Clark’s remaining Jones Act and unseaworthiness claims [see April 2017 Longshore Update]. Cenac then moved for partial summary judgment on Clark's unseaworthiness claim, withheld safety bonus claim, and Jones Act claim relating to his osteomyelitis. Cenac contended that there was no condition on board its vessel, where Clark worked at the time of the alleged incident, or with any of its appurtenances or its crew. Additionally, Cenac pointed to Clark's own deposition testimony, where he admitted that neither his fellow workers nor any equipment aboard any of the Cenac vessels had done anything to cause his injury. The court also found that Clark’s attempts to defend his claim for the safety bonus, by arguing that because he was employed by Cenac for the duration of the six-month bonus period he must be entitled to the bonus, blatantly misinterpreted the guidelines for receipt of the safety bonus. Finally, Cenac contended that Clark's Jones Act claim, as it pertains to his osteomyelitis, must fail because his osteomyelitis was caused by his own negligence, not negligence attributable to Cenac, but rather submitted that Clark's past drug use and tattoo exposure more likely than not caused the spinal osteomyelitis. The court found that Clark's new affidavit, prepared in response to Cenac's motion for summary judgment, did not present the type of evidence required to defeat a motion for summary judgment. Accordingly, the Court found no genuine issue of material fact as to Clark's Jones Act claim, as it pertained to his osteomyelitis. Cenac's motion for partial summary judgment was granted and Clark's claims for unseaworthiness, withheld safety bonus, and Jones Act negligence regarding his osteomyelitis were dismissed with prejudice. (USDC EDLA, April 27, 2017) 2017 U.S. Dist. LEXIS 63964
Updater Note: Congratulations to my favorite defense firm, of Waits, Emmett, Popp & Teich, New Orleans, LA, for this well-deserved victory.
COURT FOLLOWS SCARBOROUGH, DISMISSING PUNITIVE DAMAGES CLAIM
RINEHART V. NATIONAL OILWELL VARCO L.P., ET AL.
This case arose out of injuries allegedly sustained by Donald Rinehart while he was employed as a Jones Act seaman in his capacity as an engineer aboard a vessel operated by the bareboat charterer Starfleet Marine Transportation, Inc. Rinehart sought to recover certain non-pecuniary damages against third-party defendant National Oilwell Varco, L.P., including punitive damages. Rinehart alleged that he was ordered by his captain to assist with loading pallets aboard the ship, National owned the mobile crane and hook which were used in loading the pallets and also employed the crane operator directing the crane. Rinehart claimed that he was injured when a pallet fork slipped from National’s crane's hook onto the back of his head while loading pallets onto the vessel's deck. Rinehart filed suit under the Jones Act and general maritime law, requesting a jury trial and seeking recovery for the damages he sustained. National moved for partial summary judgment on Rinehart’s claims for punitive damages, relying on Scarborough v. Clemco Industries, Inc. to argue that because Rinehart alleged seaman status, he was precluded from recovering non-pecuniary damages, specifically punitive damages, from a non-employer third party. Rinehart acknowledged that 5th Circuit precedent currently precluded recovery of punitive damages for Jones Act negligence and for unseaworthiness against third parties, but nonetheless opposed the motion and sought to preserve his right to appeal an adverse ruling on punitive damages, noting that other federal precedent was in conflict with the Fifth Circuit. Rinehart also alleged that National was grossly negligent in their actions. The court declined to pass judgement on Rinehart’s allegations of gross negligence on the part of National, because the issue did not need to be resolved prior to the dismissal of Rinehart’s claims for punitive damages. Rather, as established in Scarborough, all the court must determine is whether Rinehart was a seaman and whether National was his employer, since a seaman may not recover punitive damages against a non-employer third party. National’s motion for partial summary judgment, seeking to dismiss Rinehart’s claims against it for punitive damages, was granted. (USDC EDLA, April 20, 2017) 2017 U.S. Dist. LEXIS 60270
COURT REFUSES TO RULE ON VALIDITY OF SEAMAN’S RED LETTER RELEASE
CARNIVAL CRUISE LINE V. STANKOVIC
In this case, Carnival Cruise Line sought a declaratory judgment that a release it entered into with one of its crewmembers, Zarko Stankovic, was valid and binding. Stankovic, who believes he was a victim of medical malpractice for which Carnival was liable, filed counterclaims asserting that the release was invalid because Carnival procured it through fraud. Stankovic was working as a headwaiter for Carnival when he noticed that his left testicle was larger than his right. He visited the ship's physician, who referred him to a shore-side urologist, who diagnosed Stankovic with varicocele, an enlargement of the veins within the scrotum. The urologist also discovered a ten-millimeter cyst in Stankovic's right epididymis, the sperm duct behind his right testicle. Stankovic eventually underwent a laparoscopic ligation of the enlarged scrotal vein, which repaired the varicocele. Following a period of recovery, Stankovic returned to work. After returning to work, Stankovic discovered blood in his semen and felt a burning pain in his right testicle. The ship's physician again referred him for urological treatment. The urologist performed a surgical exploration on Stankovic, possibly to remove the paratesticular mass or, if there was a malignancy, the entire right testicle. The results led Stankovic's physicians to diagnose him with lymphoma of big cells, with plasmacytoid differentiation of right epididymis, high degree of malignancy. It was Stankovic's first cancer diagnosis. Stankovic re-boarded the Carnival vessel after his surgery, and Carnival medically signed him off for further cancer treatment, including chemotherapy and external beam radiation therapy. Carnival eventually agreed to pay Stankovic $35,000 in exchange for executing a seaman's "red letter" release, which released Carnival from any and all claims Stankovic might have had against it. Stankovic testified that he understood everything that Carnival's employees told him during execution of his Release and that he did not have any questions. Years later, while Stankovic worked as a sommelier at a restaurant in Miami, an unknown man approached him in the restaurant and gave him an envelope containing pathology reports and suggested he retain counsel. Soon thereafter, Stankovic hired a lawyer, who sent Carnival a demand letter, alleging that Carnival employees conspired to hide from him a mis-diagnosis of his testicular cancer. He threatened to sue Carnival if it was not interested in amicable resolution of his claim. Carnival responded by filing a declaratory judgment action, seeking judgment that the Release was valid and binding. Stankovic then filed counterclaims for fraud in the inducement, fraud and misrepresentation, and civil conspiracy. Carnival first argued that Stankovic's counterclaims were untimely. The court observed that the only connection to maritime activity was that Stankovic was a seaman who signed a contract with a vessel owner. That was enough to confer the court with jurisdiction under 28 U.S.C. §1333, but not enough to require application of maritime law. Applying Florida law, the four-year statute of limitations began to run when Stankovic claimed he learned of Carnival's alleged deception. His counterclaims were therefore held to timely. The court found Carnival's laches argument unpersuasive. Turning to the merits of the parties’ claims, the court found that because there was conflicting testimony as to whether Stankovic learned about the pathology reports before signing the Release, summary judgment was inappropriate. The court noted that, absent fraud, it appeared the Release barred any claims Stankovic might have against Carnival. The court declined, however, to make a final ruling on that issue. Carnival's motion for summary judgment was denied, and Stankovic's motion for summary judgment was denied. (USDC SDFL, April 7, 2017) 2017 U.S. Dist. LEXIS 53633
In a subsequent ruling in the same case, the court addressed a motion for reconsideration filed by Carnival, asking the court to reconsider its ruling under the relaxed standard for summary judgment in bench trial cases. Carnival argued that in the initial denial of its motion for summary judgment, the court seemed to be under the misapprehension that the case was set for jury trial such that a jury should resolve the factual issues, if any. As the case was set for bench trial, Carnival argued that because of this misapprehension, The court analyzed the summary judgment motion under the wrong standard. The court agreed that the Eleventh Circuit has indicated that a more relaxed summary judgment standard applies to non-jury cases. Nevertheless, the court pointed out that there was conflicting testimony as to whether Stankovic learned about the pathology reports before signing the release. To resolve that conflict, the court will necessarily have to determine the credibility of the witnesses, noting it was well settled that personal observation of testimony is the sine qua non of determining witness credibility. Therefore, the court declined to reconsider its prior order on Carnival’s motion for summary judgment, which remained denied. Carnival's motion for reconsideration was denied. (USDC SDFL, April 11, 2017) 2017 U.S. Dist. LEXIS 55202
SOUNDS LIKE A PRETTY FRIVOLOUS CLAIM TO ME
RUDDELL V. MARATHON PETROLEUM CO., LP, ET AL.
Ryan Ruddell was an employee of Marathon Petroleum Company LP, serving as a crew member aboard its vessels. Ruddell alleged that the vessel upon which he was working set out in inclement weather too severe for safe navigation due to storm and lightning conditions. Ruddell alleged that he suffered an injury as a result of overexertion and argued that the storm and lightning conditions present at the time of the incident caused or contributed to cause his claimed injury. Ruddell filed a seaman’s complaint under the Jones Act and, after Marathon refused to respond to various discovery requests regarding its understanding of what constitutes a "thunderstorm," asked the court to take judicial notice that (1) thunder accompanies lightning, and (2) a thunderstorm is a storm accompanied by thunder. In response, Marathon argued that taking judicial notice of these supposed facts would mischaracterize or skew witness testimony about the weather conditions at the time of the incident, thereby misleading the jury. Marathon also argued that the facts at issue were not "adjudicative facts" and, thus, were not proper facts of which the court could take judicial notice. The court declined to take judicial notice that thunder accompanies lightning and a thunderstorm is a storm accompanied by thunder. Although his intentions were unclear, it appeared to the court that Ruddell was attempting to somehow demonstrate that Marathon must be liable for his injuries if lightning was present at the time of the incident because Marathon has a rule against working in lightning conditions. The court agreed with Marathon that taking judicial notice in this instance may mischaracterize the testimony of the witnesses and mislead the jury as to a disputed fact. Ruddell's motion for the court to take judicial notice was denied. (USDC SDIL, April 12, 2017) 2017 U.S. Dist. LEXIS 56106
SURVEILLANCE DISCOVERY ALLOWED ONLY AFTER PLAINTIFF’S DEPOSITION
KREKORIAN V. FMC TECHNOLOGIES, INC., ET AL.
Jon Krekorian alleged that while employed by FMC Technologies Offshore, LLC d/b/a FTO Services (FMC) as a Jones Act seaman, he experienced an accident which resulted in injuries to his back and other parts of his body. Krekorian sued FMC, Island Offshore X KS and Island Services, LLC under the Jones act and general maritime law, claiming that the sole and proximate cause of the accident was the result of the negligence of the defendants. Krekorian sought both compensatory and punitive damages, costs, and maintenance and cure benefits. Krekorian then filed an expedited motion to compel the production of surveillance obtained by FMC prior to his deposition, citing Chiasson v. Zapata Gulf Marine Corp. In that response, FMC objected to the production of the surveillance evidence requested, arguing that it required production of impeachment evidence that was not discoverable at this stage of litigation and to the extent that it sought documents privileged under work product or attorney client privilege. The court agreed that, under Chiasson, Krekorian appeared to be entitled to the discovery of the surveillance tapes prior to trial. However, Chiassondid not address the issue of timing, only the necessity of discovery prior to trial. Therefore, the court agreed with FMC that the proper procedure to preserve the substantive and impeachment values of such evidence was to require production of the surveillance tapes after the plaintiff's deposition. Recognizing that the impeachment value of surveillance evidence may well be lessened or lost by disclosure to the plaintiff, many courts have held that surveillance evidence must be disclosed only after the plaintiff's deposition has been taken. This procedure preserves the impeachment value of the surveillance by requiring the plaintiff to commit by deposition to a description of the scope of his injuries, but allows the plaintiff sufficient time before trial to evaluate the surveillance evidence to determine its authenticity and accuracy. The court granted Krekorian’s motion in part to compel the production of the surveillance tapes only after his deposition. The motion was denied to the extent that Krekorian sought the surveillance prior to his deposition. (USDC EDLA, April 5, 2017) 2017 U.S. Dist. LEXIS 52732
COURT UPHOLDS JONES ACT FORUM SELECTION AGREEMENT
VO V.. TRIDENT SEAFOODS CORPORATION
Tu Vo, a seaman, was allegedly injured on a Trident Seafoods Corporation fishing vessel. He sued under the Jones Act, in the Western District of Washington, because the action arose in Pierce County and Trident resided there. He claimed that for purposes of the venue statute and the local rule governing the assignment of cases to one division or the other, venue was proper in this division of the Western District. But Vo's contract with Trident included a provision limiting suits to a specific geographic venue. Employees agreed to sue only in state or federal court in King County, Washington. Trident argued that the provision was enforceable, and sought to dismiss for improper venue. Vo argued that the contractual venue selection provision was not enforceable, because the Jones Act's own venue provision was deleted in 2008, leaving Jones Act claims subject to FELA's general venue rule. And the FELA rule, Vo claims, is that contractual provisions limiting a claimant's right to choose venue are not enforceable. Trident conceded that FELA has been interpreted to void both forum selection and venue selection clauses in private contracts, but it claimed that a provision instead specifying a geographic location, and permitting the plaintiff to file in state or federal court there, was enforceable. The court found no basis for concluding that Congress intended for FELA's venue provisions to be read into the current version of the Jones Act. The Jones Act therefore did not void the forum selection clause in Vo’s contract with Trident. Vo responded that the Utoafili court engaged in logical gymnastics to reach that result, ignoring canons of construction and common sense to determine that the repeal of the Jones Act venue statute did not change the law. It argued that FELA's venue provision facially applies, and that the cases Trident relies on (and the employment contracts at issues in them) predate the amendment's effective date. The court was persuaded by Utoafili's reasoning and analysis, concluding that the 2008 amendments were not intended to change the law on venue for Jones Act claims, and were not intended to make FELA's prohibition applicable to Jones Act claims. Trident's motion to dismiss for improper venue based on the filing in the Tacoma Division, rather than the Seattle Division, of the Western District of Washington was denied. In the interest of justice, Trident's alternate request for transfer to the Northern Division consistent with the parties' valid contract was granted. (USDC WDWA, April 4, 2017) 2017 U.S. Dist. LEXIS 51562
COURT ADDRESSES DAUBERT MOTIONS IN SEAMAN’S CASE
DUNMILES V. JUBILEE TOWING, LLC
Derrell Dunmiles filed a seaman’s suit against his employer, Jubilee Towing, LLC, after he was allegedly injured in the service of his vessel. Following discovery in the case, Jubilee moved to exclude any evidence of and/or reference to alleged racially discriminatory text messages sent to Dunmiles by Jubilee employees. During his deposition Dunmiles mentioned that he was sent racist text messages by a Jubilee employee towards the end of his employment, but claimed that he deleted the messages and that he could not specifically recall what the alleged racist messages said. Jubilee argues that there was no evidence that racist messages were ever sent to Dunmiles. But even if they were, Jubilee contends that such messages would bear no relevance to this maritime slip-and-fall-overboard case and further that they would be unduly prejudicial. The court agreed that any probative value that the messages might have was substantially outweighed by the danger of unfair prejudice, confusing the jury, and wasting time. Therefore, the court held that any such messages should be excluded under Rule 403 as well as pursuant to Rule 402. Jubilee's second and third motions challenge the admissibility of opinions by two of Dunmiles’ experts under Daubert. Jubilee moved to exclude certain opinions by Dunmiles’ expert economist, G. Randolph Rice, pursuant to Rule 702, taking issue with Rice's opinion regarding Dunmiles’ future lost earnings. Jubilee argued that when making his calculations, Rice simply assumed that Dunmiles would only be able to earn a minimum wage in the future without pointing to any reason why. The court noted that no other expert in the case had offered the opinion that Dunmiles could only earn a minimum wage due to the accident and it was unclear how any of the information reviewed by Rice and set forth in his expert report provided a basis for his conclusion that in the future, Dunmiles would only be able to earn a minimum wage. Dunmiles’ arguments were so unresponsive to Jubilee's challenges that the court was left wondering whether plaintiff's counsel attempted to obfuscate the issue in order to hide the fact that absolutely no evidence had been provided that the Dunmiles could only earn a minimum wage. Without any evidence to support the assumption that Dunmiles was only capable of earning a minimum wage, Rice's calculation of future earning capacity based on that assumption was unreliable, irrelevant, and potentially confusing for the jury. Finally, Jubilee moved4to exclude all opinions by Dunmiles’ maritime safety expert, John Pierce, pursuant to Rule 702 and Daubert, arguing that no expert testimony was permissible on the subject of maritime safety in this case, as the facts are simple and easily within the knowledge of the typical juror. Even if expert testimony was permissible on this subject, Jubilee asserted that Pierce's opinions were too unreliable to be admitted because Pierce only reviewed plaintiff's discovery answers, the Coast Guard accident form, and Jubilee's safety policies in formulating his opinion. Dunmiles responded that Jubilee's criticisms go to the weight that should be given to Pierce's testimony and not its admissibility. After reviewing Pierce's expert report and the cases cited by the parties, the court was not convinced that Pierce's testimony was too unreliable to be admitted under Rule 702. Jubilee's first two motions in limine were granted and the third motion was denied. (USDC EDLA, April 3, 2017) 2017 U.S. Dist. LEXIS 50269
TWOMBLY GETS SEAMAN’S COMPLAINT DISMISSED IN ITS ENTIRETY
DIEFENBACH V. M/V EAGLE RAY, ET AL.
John Diefenbach alleged that he was injured at some time when he worked aboard a vessel owned and operated by Underwater Safaries, Inc. Diefenbach filed a seaman’s complaint alleging Jones Act negligence, unseaworthiness. failure to provide maintenance and cure, negligent failure to provide prompt medical attention to an injured seaman, and claiming a maritime lien against the vessel. Safaris moved to dismiss the complaint for failure to state a claim, arguing that the complaint relied solely on conclusory statements. Safaris argued that Diefenbach simply concluded that he is a seaman covered by the act and that his allegations amounted to an "I say so" argument. The court reviewed the complaint and pointed out there were two paragraphs that arguably addressed the scope of Diefenbach's employment status. The court noted that the tenet that a court must accept as true all of the allegations contained in a complaint was inapplicable to legal conclusions. An employee's status as a "seaman" under the Jones Act is a conclusion reached by applying a legal test to the facts presented by a party. The court found that the allegations contained in paragraphs 11 and 13 of the complaint did not provide underlying facts that, when taken to be true, would establish that Diefenbach was a seaman. The complaint had no allegations that Diefenbach's employment had some degree of permanent connection with the vessel. There were no allegations that indicate the nature of, or the capacity with in which, Diefenbach was employed. In sum, other than pronouncing he was a seaman, Diefenbach had alleged no plausible facts that would allow the court to infer that he is a seaman. As such, the statement that Diefenbach is a seaman is not entitled to the court's acceptance as true. The court held that Diefenbach's conclusory allegation that he is a "seaman and member of the crew," was deficient under Twombly. As such, counts I, III, and IV were dismissed for failure to state a claim. Count II alleged unseaworthiness. The allegations in the complaint that arguably provide a plausible factual basis to infer that the vessel was unseaworthy essentially only recited the cause of action and make a conclusion. Having considered the allegations contained in Count II of the complaint, the court found that all of the allegations that could potentially establish that the vessel was intrinsically unsafe were conclusory. After disregarding such conclusory statements, there were no remaining facts that established a violation of the "nondelegable duty to provide seamen a vessel that is reasonably fit for its intended purpose. As such, the court dismissed Count II of the Complaint. Count V requested a maritime lien against the vessel. Diefenbach asserted he was entitled to a maritime lien against the vessel because of his "negligence and unseaworthiness" claims. The court noted that it had already determined that the other Counts should be dismissed. As such, the court dismissed the request for a maritime lien as well. Diefenbach's complaint was dismissed in its entirety. (USDC DVI, March 31, 2017) 2017 U.S. Dist. LEXIS 49057
COURT DENIES MOTION TO DISSOLVE THE LIMITATION INJUNCTIONS
IN RE: DOUBLE C MARINE, LLC
This matter arose out of an allision that occurred between a liftboat owned by Anders Offshore, LLC and a barge in the tow of a vessel owned by Barbara Ann, LLC and chartered by Double C Marine, LLC. Paul Jones, who was working aboard the liftboat at the time of the allision, claimed he sustained physical injury. As a result of the allision, Jones filed a Jones Act and general maritime personal injury case against Double C, Barbara Ann, and Anders in Louisiana state court pursuant to the "savings to suitors" clause and demanded a jury trial. Thereafter, two limitations proceedings were filed in federal court, by Double C, as operator/bareboat charterer, and Barbara Ann, as owner of the tug. Thereafter, Anders filed a verified complaint for exoneration from or limitation of liability. The two limitations proceedings were subsequently consolidated. Prior to consolidation, Anders and Jones filed claims in the Double C Limitation. Jones sought damages for personal injury, while Anders asserted two distinct claims; a property damage claim associated with the incident, and a claim for indemnity and/or contribution and/or recover over from Double C and/or Barbara Ann for any judgment rendered or any settlement reached in favor of Jones, together with all maintenance and cure, costs, expenses, and attorney's fees incurred in connection with the prosecution of the complaint against Double C Marine, LLC and/or Barbara Ann, and/or the defense of any claim filed by Jones. Anders settled its property damage claim against Double C and Barbara Ann, and an order dismissing Anders' claim was issued. Jones sought to dissolve the limitation injunctions, presumably in both limitations proceedings, on grounds the consolidated cases represent a single-claimant dispute. The court noted; however, that the record was clear that the litigation in question was a consolidation of two distinct limitation of liability proceedings, in which Jones and Anders had filed claims. While Jones acknowledged his claims against each of the limitation petitioners, as well as Anders' cross-claim for maintenance and cure related contribution in the Double C limitation, remained active, he argued Anders' claim for contribution is not subject to limitation, on grounds a shipowner cannot limit its liability for maintenance and cure. Jones further argued he had not reached maximum medical improvement and Anders' maintenance and cure obligations remain ongoing. Jones argued that until the state court jury determined when Jones will reach maximum medical improvement and the total amount of maintenance and cure owed to Jones by Anders, the contribution claim remains unliquidated and, therefore, not yet ripe for adjudication by any court. Jones therefore argues Anders' contribution claim has no impact on the Double C Limitation fund. The court found all of Jones' arguments unpersuasive. Jones’ motion to dissolve the limitation injunctions was denied. (USDC WDLA, April 3, 2017) 2017 U.S. Dist. LEXIS 50968
COURT FINDS FEDERAL JURISDICTION PROPER AND DENIES REMAND (CONT.)
JOHNSON V. SUNOCO, INC. (R&M), ET AL.
Rudolph Johnson claimed that he worked as a mechanic and seaman on United States’ navigation vessels, repairing engines, cleaning tanks, and performing other miscellaneous tasks. Johnson alleged that during the course of his employment, on almost a daily basis, he was exposed to a variety of benzene-containing solvents. Johnson was diagnosed with myelodysplastic syndrome, which mutated into acute myeloid leukemia (AML). Johnson alleged that he contracted AML as a result of his exposure to benzene and that as a result of the AML that Johnson contracted, he suffered various adverse side effects and illnesses, forcing him to undergo extensive medical treatment, thereby causing him pain, suffering, disability, disfigurement, deformity, impairment, mental anguish, anxiety, humiliation, and increased susceptibility to infection. In addition, Johnson claimed that he had suffered substantial financial damages as a result of his condition. Johnson filed suit against multiple defendants, claiming that they manufactured, refined, designed, produced, processed, compounded, converted, packaged, sold, distributed, marketed, re-labeled, supplied and/or otherwise placed into the stream of commerce benzene-containing solvents. He further contended that while working on the vessels, Johnson was also exposed to the benzene-containing solvents by means of inhalation, ingestion, and dermal absorption. Johnson and his wife filed a complaint against CRC Industries, Inc. and other defendants in state court. Defendants removed the case to federal court, pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446, contending that American Overseas Marine Corporation (AMSEA) operated both vessels that Johnson worked on, pursuant to instructions contained within federal government contracts. Defendants averred that AMSEA was conducting its activity pursuant to orders from a federal officer, and therefore the claims and defenses were properly evaluated in federal court. Johnson moved to remand. The court found federal jurisdiction to be proper and denied the motion to remand [see April 2017 Longshore Update]. AMSEA and General Dynamics Corporation then moved to dismiss for failure to state a claim pursuant to FRCP12(b)(6). Johnson contended that the motion to dismiss should be denied, since all necessary relevant factual material had yet to be developed, and because the record did not clearly detail the extent to which AMSEA and General Dynamics intended to pass liability to the United States. The court noted that in denying Johnson’s remand motion it had previously concluded that through General Dynamics and AMSEA's relationships with the vessels, they were clearly Government agents acting under the direction of the United States. The court held that it was clear the Johnson had no recourse against AMSEA and General Dynamics in their individual capacities, and could only seek damages from the United States Government. In light of the foregoing, defendants' motion to dismiss was granted. (USDC EDLA, April 7, 2017) 2017 U.S. Dist. LEXIS 54600
COURT OVERRULES MAGISTRATE AND ALLOWS REMAND IN LIMITATION CASE
GET HOOKED CHARTERS, LLC V. HAYSLIP, ET AL.
Danny Ritter (individually and as next friend of D.R. and D.R., minor children) and Richard Hayslip (plaintiffs) chartered a 21' Parker watercraft from Get Hooked Charters, LLC. The vessel capsized in navigable waters and plaintiffs filed a maritime personal injury suit in state court. Get Hooked filed a verified complaint for exoneration from or limitation of liability in federal court after the capsizing incident, which included declarations of value ($8,000) and pending freight ($750). The court entered a monition; however, no further parties came forward. Plaintiffs then moved to dissolve the limitation injunction. The court referred the case to a magistrate, recommended denying the motion. Plaintiffs objected to the magistrate’s recommendation, arguing that the court's refusal to lift the stay would constitute an abuse of discretion. Plaintiffs argued that the court must lift the stay because they had made all proper stipulations required to lift the stay. Get Hooked argued that the court should, in its discretion, deny the motion because plaintiffs waived their right to state court litigation. Get Hooked further argued that plaintiffs’ stipulation was inadequate, noting that the magistrate had agreed and recommended denial of the motion to lift the stay relying upon plaintiff’s express abandonment of their Savings Clause option and on the fact that extensive limitation suit discovery had already occurred. Plaintiffs objected, arguing that they never intended to abandon their state court claim. They requested leave, in the alternative, to re-file the necessary stipulations. Prior to the hearing, the court emailed the parties and requested that plaintiffs file any necessary stipulations, which they did. The current dispositive issues before the court were whether plaintiffs’ stipulations sufficiently protected the rights of Get Hooked under the Act and whether the plaintiffs effectively waived the right to proceed in state court. The court agreed that plaintiffs initial stipulations were inadequate to fully protect the rights of Get Hooked under the Act. However, the court found that plaintiffs corrected these deficiencies in their subsequent filing. Accordingly, the court found that plaintiffs amended stipulations fully protected the rights of Get Hooked. Therefore, the court found it is appropriate to lift the stay and allow plaintiffs to proceed in state court pursuant to their stipulations. The court maintained jurisdiction over the case in the event that the rights of the parties were not protected in state court. (USDC SDTX, April 25, 2017) 2017 U.S. Dist. LEXIS 62733
COURT DISMISSES DJ ACTION RATHER THAN ADDRESS CHOICE-OF-LAW ISSUE
EMERALD MARINE HOLDINGS, LTD., ET AL. V. ANDERSON
David Anderson sent a demand letter to Emerald Marine Holdings, LTD regarding injuries he allegedly sustained while employed as a captain of Emerald's vessel. Emerald, Bluewave Investments, LTD, and Bluewave Marine Holdings, LTD filed a declaratory judgment action seeking a determination of their rights, duties, and obligations owed to Anderson. Pursuant to a choice-of-law provision in his employment agreement, Anderson waived his right to bring a Jones Act claim and an ongoing maintenance and cure claim against plaintiffs by agreeing that Republic of Marshall Islands law applied to the agreement. Anderson eventually filed suit in state court for Jones Act negligence, unseaworthiness, and maintenance and cure. Anderson moved to dismiss plaintiffs’ DJ action, arguing that the court should decline to exercise jurisdiction over this declaratory judgment action in favor of the parallel state court litigation. Plaintiffs countered that the Ameritasfactors weighed in favor of the case remaining in federal court. The court found that the Ameritas factors weighed largely in favor of dismissal. Further, the court noted that Anderson exercised his well-established right to bring his Jones Act claim in state court rather than federal court. Because plaintiffs' action arose out of the same set of facts as Anderson's Jones Act claim, the DJ action should be dismissed. Assuming, but not deciding, that the choice-of-law provision applied to Anderson's claims against plaintiffs, the state court would still determine if it applied. Considering the relevant Ameritas factors, dismissal of plaintiffs' declaratory judgment action was held to be warranted. Accordingly, Anderson's motion to dismiss was granted. (USDC MDFL, April 28, 2017) 2017 U.S. Dist. LEXIS 65345
COURT ADDRESSES MULTIPLE DAUBERTMOTIONS
RUDDELL V. MARATHON PETROLEUM COMPANY LP
Ryan Ruddell filed a lawsuit pursuant to the Jones Act, alleging he sustained injuries while employed by Marathon Petroleum Company LP as a crew member aboard its vessel. Ruddell claimed that inclement weather, including storm and lightning conditions, contributed to his injuries. Marathon moved to strike the reports and bar the testimony of Ruddell's experts Robert B. Ancell, Ph.D. and Howard Altschule. Ruddell also filed a motion to strike the report and bar the testimony of Marathon’s liability expert Kevin Mullen. The court initially addressed the motion to strike the report and bar the testimony of Ruddell's purported rebuttal expert, Robert B. Ancell, Ph.D, pointing out that the scheduling order required Ruddell to disclose expert witnesses and produce a written Rule 26 expert report on or before October 15, 2016. There was no provision in the scheduling order for the disclosure of rebuttal experts. Where the court's scheduling order is silent on the matter of rebuttal experts, rebuttal expert reports are due within 30 days of the other party's expert disclosures. On January 13, 2017, Marathon served the report of its vocational expert, Scott Gould. On January 31, 2017, the period for discovery closed. On February 7, 2017, Ruddell served Marathon with an unsigned letter described by Ruddell as a reply to the expert report of Marathon's retained vocational expert. The letter was prepared by Robert B. Ancell, Ph.D. Six days later, on February 13, 2017, Ruddell served Marathon with additional materials, including a list of the trials in which Dr. Ancell has testified, his compensation and fees, and his resume. Marathon argued that the Ancell Report was untimely and should be stricken. The court noted that the Ancell Report was served on February 7, 2017, which was 25 days after Marathon served its vocational expert's report. Thus, the rebuttal report was timely under Rule 26(a)(2)(D)(ii). Marathon argued, however, that even if timely under Rule 26(a)(2)(D)(ii), the Ancell Report was served after the close of discovery on January 31, 2017, and, thus, was still late and must be stricken. Marathon argued that it would be unfairly prejudiced if Dr. Ancell was permitted to testify, because discovery had closed and it would be unable to take Dr. Ancell's deposition. Marathon also contended that Ruddell knew Marathon intended to deny his claim for future loss of earnings, loss of earning capacity, or significant vocational impairment, and Ruddell should have retained and disclosed a vocational expert as part of his case-in-chief. The court agreed and held that, because Ruddell did not serve the rebuttal report of Dr. Ancell prior to the close of discovery or even attempt to ask the court for an extension of the discovery period, the untimely report must be stricken. Ruddell was barred from presenting the testimony of Dr. Ancell at trial. Marathon also has moved to strike the report and bar the testimony of Howard Altschule, an expert disclosed by Ruddell to offer opinions concerning the weather in and around the area where he was injured. Marathon argued that Altschule's opinions were unreliable under Rule 702 of the Federal Rules of Evidence, as well as Daubert, because he relied on data from Madison County, Missouri, instead of Madison County, Illinois. Marathon also asserted that the subject of Altschule's testimony (the weather) was not so technical or complex as to require explanation by an expert witness. Finally, Marathon took issue with Altschule's unwillingness to consider sources outside of historical weather data in preparing his analysis and opinions. While Altschule clearly included data from the wrong area in his report, the court was not convinced the error so infected the remainder of the report that it should be stricken in its entirety. The court also disagreed with Marathon’s argument that the subject on which Altschule was expected to testify was not technical or complex. Accordingly, the court found that Altschule's testimony regarding the weather conditions at the time of the incident would assist the trier of fact to understand or determine a fact in issue, as required by Federal Rule of Evidence 702(a). The court also pointed out that Marathon could challenge the validity of Altschule's conclusions at trial. Marathon’s motion to strike the report and bar the testimony of Altschule was denied. Finally, the court addressed Ruddell's motion to strike the report and bar the testimony of Marathon’s liability expert. As an initial matter, the court noted that Ruddell's motion was untimely. The court set a special deadline for Daubert motions, which Ruddell failed to comply with. Even considering the merits of Ruddell’s motion, the court found no basis to strike the report and bar the testimony of Captain Mullen. Marathon’s motion to strike the report and bar the testimony of Robert B. Ancell was granted. The motion to strike the report and bar the testimony of Howard Altschule was denied. Ruddell's motion to strike the report and bar the testimony of Marathon’s liability expert was denied. (USDC SDIL, April 25, 2017) 2017 U.S. Dist. LEXIS 62680
Quotes of the Month . . ."There are two ways of spreading light: to be the candle or the mirror that reflects it." - - Edith Wharton
"There is the risk you cannot afford to take, and there is the risk you cannot afford not to take." - - Peter Drucker
“Do what you feel in your heart to be right -- for you'll be criticized anyway. You'll be damned if you do, and damned if you don't.”--Eleanor Roosevelt
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