November 2017
Notes From Your Updater: On October 2, 2017, the U.S. Supreme Court denied certiorari in the case of Harley Marine Services v. U.S. Department of Labor, et al., Docket No. 16-1610. Harley had sought review of the Secretary of Labor’s final order that Harley terminated the employment of Captain Joseph Dady in violation of the Seaman’s Protective Act.
On October 2, 2017, the U.S. Supreme Court denied the petition for certiorari in the case of Price v. Director, OWCP [Longnecker Properties], Docket No. 16-1523 [see April 2017 Longshore Update]. The question presented was, “Did the three tribunals below -- the Administrative Law Judge, the Benefits Review Board, and the Fifth Circuit Court of Appeals -- employ the proper legal standard to evaluate the Claimant's prima facie cases under section 20(a) of the Act?" The Petition involves the interpretation and application of the presumption that is contained within section 20(a) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950.
On October 2, 2017, the U.S. Supreme Court denied the petition for certiorari in the case of Dallas v. United States of America, Docket No. 16-1434 [see October 2016 Longshore Update]. The question presented was whether the Judicial Branch overreached its authority by ignoring the language that Congress inserted into 5 U.S.C. §8116(c) that exempted "a master or member of the crew of a vessel" from FECA's exclusive remedy provision? This was a case in which the Fifth Circuit affirmed the district court’s holding that FECA precluded Jones Act and general maritime claims by civil service employees of the United States.
THIRD CIRCUIT ADDRESSES BARE-METAL DEFENSE IN MARITIME CLAIMS
IN RE: ASBESTOS PRODUCTS. LIABILITY. LITIGATION
Roberta G. Devries and Shirley McAfee were the widows of deceased husbands who served in the United States Navy. Each couple filed a complaint in Pennsylvania state court alleging that the husband contracted cancer caused by exposure to asbestos. Each named a number of defendants, of which manufacturers were a subset. The manufacturers each made their products "bare metal," in that if they manufactured an engine, they shipped it without any asbestos-containing insulation materials that would later be added. Both complaints alleged claims of negligence and strict liability. The manufacturers removed to complaints to federal court and invoked the “bare metal” defense in support of their respective summary judgment motions, arguing that because they shipped their products bare metal, they could not be held liable for the sailors' injuries. The district court agreed and granted the manufacturers summary judgment motions. Devries and McAfee each appealed separately, raising an issue as to whether the district court's decision addressed their negligence claims. The appellate court considered the question of the “bare metal” defense's availability, concluding that a plaintiff would be permitted to recover, at least in negligence, from a manufacturer of a bare-metal product when the facts showed that the plaintiff's injuries were a reasonably foreseeable result of the manufacturer's conduct, at least in the context of a maritime negligence claim and in view of the maritime law's special solicitude for the safety and protection of sailors. The court declined to address the manufacturers' two alternative arguments, but left them to be dealt with on remand. The appellate court summarily remanded with instructions that the district court address the negligence issue and also consider a split in authority as to whether a bright-line rule or a fact-specific standard governed the bare-metal defense's availability. The district court’s decision was affirmed as to plaintiffs' strict liability claims. (3rd Cir, October , 2017) 2017 U.S. App. LEXIS 19118)
COURT DISMISSES CLAIMS UNDER BOTH THE JONES ACT AND LHWCA
IN RE: BUCHANAN MARINE, LP
Franz, Jr., Trustee, as owner, and Buchanan Marine, L.P., as bareboat charterer, of the barge B-252 commenced this action pursuant to the Limitation of Liability Act, seeking exoneration from or limitation of liability. Franz and Buchanan moved for summary judgment, on the limitation action. Claimant, Tilcon New York, Inc., also moved for summary judgment and claimants Wayne and Karen Volk cross-moved for summary judgment, seeking dismissal of the limitation proceeding. Volk worked as a barge checker for Buchanan at a quarried rock processing facility operated by Tilcon At the facility, Tilcon processes quarried rock and loads the rock onto barges supplied by Buchanan. Using its tug boats, Buchanan then transports the barges down river to Tilcon's customers. Volk fell and injured his right arm and shoulder while inspecting a barge after it was loaded with wet stone. Volk has not worked since the accident and had been receiving workers' compensation under the LHWCA. Volk's injury occurred aboard the barge B-252, a "'dumb' barge" that required a tugboat to ferry it from place to place. Franz owned the B-252 as a trustee, and bareboat chartered that barge along with his fleet of other barges and tug boats to Buchanan. The Volks filed a complaint to recover for personal injury against Buchanan and Tilcon. In response, Franz and Buchanan commenced this limitation action in federal court, and offered a security bond of $47,420.77, representing the value of their interest in the B-252 (the court later directed Franz and Buchanan to increase their security by $10,000). The court thereafter granted Franz and Buchanan's motion to approve security, enjoin suits, and direct the issuance of notice. Both the Volks and Tilcon answered and asserted counterclaims. The Volks contended that they were entitled to relief under the Jones Act because Volk was a seaman who suffered a personal injury. Franz and Buchanan oppose and assert that Volk did not meet the standard to be a Jones Act seaman. Tilcon argued that it was not liable under the Jones Act because it was not Volk's employer. Assuming without deciding that Volk met the first Chandris criteria, the court concluded that his connection to the B-252 was far from substantial in either duration or nature. On the contrary, Volk was square on all fours with the claimant in O'Hara and did not qualify as a Jones Act seaman. As a result, he did not qualify for seaman status, and Franz, Buchanan and were awarded summary judgment on the Volks' Jones Act claims. Alternatively, the Volks maintained that the parties were negligent under §905(b) of the LHWCA. Tilcon asserted that it had no LHWCA liability because it did not employ Volk nor did it own the B-252. Because LHWCA liability only attaches to employers or vessels, Tilcon's motion on this ground is granted. Franz maintained that it was not liable because it was not the owner of the B-252, as it bareboat chartered the B-252 to Buchanan as owner pro hac vice. Regarding LHWCA liability under a bareboat charter, the court noted that the original vessel owner is only responsible for its "turnover duty." The negligence that the Volks complained of did not relate to Franz's turnover duties to warn Buchanan of hidden dangers. Accordingly, the Volks did not have a LHWCA claim against Franz, and petitioners' motion on this ground was granted. Buchanan acknowledges it is liable under the LHWCA, however, asserted that Volk's remedy was limited to LHWCA workers' compensation payments under the statute's no-fault insurance scheme. The court agreed, applying the Gravattrule. As Volk's injury was attributable to conduct related to Buchanan's capacity as his employer, LHWCA workers' compensation benefits were his exclusive remedy. The court concluded that the Volks had not established negligence or other actionable conduct against Franz and Buchanan under any alleged theory, and the complaint for exoneration from liability was granted. Consequently, Tilcon's claims for contribution or indemnification were dismissed. The Volks' cross-claims against Tilcon were also dismissed [see April 2016 Longshore Update]. The Volks appealed the district court’s judgment, arguing that the district court erred in dismissing all of their claims against the three defendants. The appellate court concluded that the district court correctly held that Volk, who inspected and maintained moored barges used to transport rock from a quarried rock processing facility down the Hudson River, was not a "seaman" for purposes of the Jones Act. In weighing "the total circumstances" of Volk's employment, the appellate court concluded as a matter of law that Volk does not qualify as a seaman under the Jones Act, as a reasonable fact finder could only conclude, his work on the barges did not regularly expose him to the special hazards and disadvantages of the sea. In sum, none of Volk's work was of a seagoing nature. Volk did not go to sea and he was not exposed to the "perils of the sea" in the manner associated with seaman status. Volk also asserted claims under the LHWCA, general maritime law, and New York law against all three appellees: Buchanan, Franz, and Tilcon. The district court dismissed all these claims. The appellate court concluded that the district court should have permitted certain of these claims to proceed. The district court correctly dismissed all the remaining claims against Buchanan. Buchanan was Volk's employer and ordinarily would be immune from suit under 33 U.S.C. § 905(a). As bareboat charterer of the barge, however, Buchanan was a dual capacity employer-vessel owner. Therefore, if Buchanan were negligent in its vessel capacity in relation to Volk's injury, Buchanan would be liable under 33 U.S.C. § 905(b) in the same manner as a third party. The district court ruled that Buchanan was not acting in a capacity as vessel owner in relation to Volk's injury, and therefore is liable exclusively for Volk's workers' compensation payments under the LHWCA. Volk did not challenge that ruling on appeal. Because the statutory, no-fault compensation payments under the LHWCA were Volk's exclusive remedy as to Buchanan, his general maritime law and state law claims against Buchanan were properly dismissed. As vessel owner, Franz was subject to suit for negligence under §905(b) of the LHWCA. Although the district court correctly noted that Franz was not an employer or bareboat charterer of the barge and therefore was only responsible for his "turnover duty," the district court did not properly analyze the LHWCA claims. While he could not be responsible for the presence of excess stone, Franz arguably had a duty, as owner, to address the condition of the barge before turning it over to Buchanan. On remand, the district court was ordered to consider whether there was a viable claim under §905(b) of the LHWCA against Franz as owner based on the condition of the vessel. The appellate court also observed that the district court correctly held that Tilcon, the operator of the rock processing facility, had no LHWCA liability because it did not employ Volk or own the barge. The district court also correctly held that the general maritime claims asserted against Tilcon fail because Tilcon was not an owner of the barge and because Volk was not a seaman. The district court erred, however, in dismissing Volk's New York state law claims against Tilcon for negligence, gross negligence, and violations of N.Y. Labor Law § 200. Accordingly, the case was affirmed in part, vacated in part, and remanded for such further proceedings as may be appropriate. (2nd Cir, October 27, 2017) 2017 U.S. App. LEXIS 21321
I’M FINDING IT HARDER TO BREATH. IT MUST BE COMPENSABLE (CONT.)
METRO MACHINE CORPORATION V. DIRECTOR, OWCP, ET AL.[STEPHENSON]
John Stephenson worked for Metro Machine Corporation as a pipefitter, who had a long history of breathing problems. He suffered from asthma until he was approximately eight years old, and he began smoking when he was 16. He received treatment for bronchitis caused by his smoking since the early 1980s. And he received treatment for a productive cough and wheezing in 1985 and 1986. Additionally, he regularly suffered from bronchitis during winters, and his bronchitis was treated with antibiotics. He has been taking steroids for his wheezing and coughing since 1986. He was diagnosed with chronic obstructive pulmonary in 1996 and emphysema in 2001. In 2008, while Stephenson was working in the superstructure of a vessel, he allegedly inhaled fumes from welding and burning and the application of epoxy paint, which allegedly caused him breathing problems and resulted his hospitalization and a diagnosis of exacerbation of chronic obstructive pulmonary disease. Stephenson voluntarily retired in 2011. Stephenson filed a formal claim for compensation under the LHWCA. Following a formal hearing, the ALJ found that Stephenson established a prima facie case by showing a harm — the worsening of his COPD — and a work incident that could have caused or aggravated that harm. Therefore, he found Stephenson entitled to the § 20(a) presumption that the worsening of his COPD was compensable. Metro appealed the decision to the Board, which affirmed. Metro petitioned for review of the Board's decision, contending that the ALJ erred in relying on Stephenson’s medical experts opinions to find that Stephenson had established a prima facie case and that the Board erred in affirming the ALJ's decision. Finding no reversible error, the appellate court denied the petition [see February 2017 Longshore Update]. Following the favorable appellate ruling, Stephenson’s attorney, Gregory Camden, petitioned the appellate court for fees at the rate of $600 per hour. In a very short decision, after reams of briefing, the clerk of the court granted Camden only $350 per hour, reducing his fee petition substantially. (4th Cir, September 25, 2017) 15-2525
Updater Note: Defense attorney for Metro, Nash Bilisoly, expects the district director, ALJ’s & the Board in our 4th Circuit to follow this fee ruling for years to come.
PLAINTIFF HELD A BORROWED SERVANT WITH LHWCA HIS EXCLUSIVE REMEDY
MOSLEY V. WOOD GROUP, PSN INC. ET AL.
Dwayne Mosley alleged that he sustained a back injury when he slipped and fell in hydraulic fluid on the deck of a fixed platform on which he was working. Specifically, he contended that while a transformer was being moved, it was damaged and began to leak hydraulic fluid. The leak was initially contained in a bucket, but later, an employee of Wood Group PSN, Inc. allegedly opened the spigot on the transformer and allowed hydraulic fluid to run out onto the deck. The next morning, Mosley alleged that he slipped and fell while walking through the area. Mosley brought suit against Wood Group and Fieldwood Energy LLC, the owners and/or operators of the platform, as well as Linear Controls, Inc. and Linear Controls Operating, Inc.'s for their negligence in moving the transformer. Each Defendant has filed a separate motion for summary judgment seeking dismissal of the claims against it. Fieldwood argued that Mosley was its borrowed employee and therefore his exclusive remedy was the LHWCA and his tort claims against it could not prevail. Wood Group alleged that both Mosley's supervisor, and the Wood Group employee who allegedly opened the spigot were also borrowed employees of Fieldwood, and it therefore could not be vicariously liable for their negligence. Finally, Linear Controls argued that it could not be liable for Mosley's injuries because the alleged negligent act was a superseding event, and the hazard was open and obvious. After considering the nine Ruizfactors, the court agreed with Fieldwood and Wood Group’s arguments that Mosley, his supervisor and Wood Group’s nominal employee were the borrowed servants of Fieldwood, finding that each factor weighed heavily in favor of a finding that each of the payroll employees involved were the borrowed employees of Fieldwood. The court also agreed that Mosley’s excusive remedy was the LHWCA, applicable by virtue of OCSLA. The court then tuned to Linear Controls allegation that the claims against it should be dismissed because Mosley could not show that it caused the accident. The court found the argument compelling, noting that the evidence showed that Mosley allegedly slipped in hydraulic fluid that had leaked from a transformer that had been disconnected and moved by Linear Controls the day before. The transformer was not leaking before the move but began leaking at some point either during or after the move. The court concluded that even if Linear Controls was negligent in causing the transformer to leak, Mosley would not have been injured without the intervening negligence of Wood Group’s payroll employee. Linear Controls certainly could not have foreseen that someone would remove the bucket and allow hydraulic fluid to leak on to the deck. Accordingly, Mosley could not succeed on his claim of negligence against Linear Controls. Defendants’ motions were granted and Mosley’s claims against all defendants were dismissed with prejudice. (USDC EDLA, October 3, 2017) 2017 U.S. Dist. LEXIS 164232
COURT GRANTS MOTION TO INTERVENE DUE TO OCSLA LIEN
DOUCET V. R & R BOATS, INC.
Elroy Doucet, an employee of W&T Offshore, sued R & R Boats, Inc. in admiralty, alleging that he was injured while traveling as a passenger on board a vessel in navigation owned, being operated by and under the sole custody and control of R&R. Doucet claimed, while transporting him and other workers to various platforms located in the Gulf of Mexico the crew boat encountered progressively worsening seas to the point where they were unreasonably dangerous for the R&R vessel to continue traversing. Doucet alleged that, due to the extremely rough sea conditions, he lost his balance and fell onto and against the edge of a table, striking and injuring his back, left shoulder, and neck. Doucet contended that he had been rendered totally disabled from working, and asserted that his injuries occurred solely through the negligence and/or fault on the part of R&R. Following his alleged injuries, W&T Offshore paid Doucet compensation and medical benefits under the OCSLA, as extended by the LHWCA. After Doucet filed suit, W&T Offshore’s insurer, ALMA, moved to intervene in the case alleging that it issued a Member's Coverage Agreement to W&T Offshore, covering its liabilities for injuries to its employees pursuant to the 'OCSLA, extending the benefits of the LHWCA and that it had incurred liability for the payment of indemnity and medical benefits under the OCSLA and LHWCA to Doucet. The court found ALMA's Motion to Intervene to be timely and ALMA to be an intervenor of right under FRCP 24(a)(2). Therefore, the consent motion of intervention was granted. (USDC MDLA, October 10, 2017) 2017 U.S. Dist. LEXIS 167142
COURT FINDS INDEPENDENT CONTRACTOR DID NOT OWE WORKER A DUTY
FORNAH V. TETRA APPLIED TECHNOLOGIES, LLC, ET AL.
This personal injury case arose from an offshore accident during a coiled tubing operation decommissioning a well on a plug and abandon project in which John Fornah alleged he was injured as a result of being the only rigger assigned to guide various hydraulic hoses, which were metal reinforced, filled with heavy viscous fluids, and suspended overhead by crane. As part of plugging and abandonment efforts, Chevron Corporation hired Schlumberger Technology Corporation, as an independent contractor, to perform coiled tubing wellbore cleanout. Tetra Applied Technologies, LLC provided a crew for plugging and abandoning services. Pursuant to Tetra's Master Services Contract with Chevron, Tetra was also an independent contractor of Chevron. Fornah worked for Tetra as a rigger. Fornah claimed that he injured his neck, back, and shoulder after being instructed by his Tetra supervisor to guide a tubing hose during a crane lift. He attempted to perform this task by himself because other Tetra co-workers were busy and he did not see anyone available to help him. Another Chevron independent contractor, Alliance Offshore, LLC, owned and operated a liftboat adjacent to the platform and operated the crane being used to lift and move the hoses in Schlumberger's coiled-tubing job as part of Chevron's plug and abandonment effort. The Alliance-operated crane, located on an adjacent liftboat, lifted Schlumberger's coiled tubing injector head into position. Fornah said that, acting alone, he jerked an attached hose to get it untangled from scaffolding and felt a pain in his back and shoulder. Fornah continued to work, and worked two additional hitches. During the Chevron work, no one reported to Schlumberger any incident or injury to a Tetra employee. Fornah sued to recover maintenance and cure under general maritime law and also alleged Jones Act negligence on the part of his employer, Tetra; he also alleged unseaworthiness of the vessel, as well as negligence claims under general maritime law against Alliance (for failing to stop an unsafe lift operation), Schlumberger (for failing to provide a full coiled tubing crew and for negligent supervision), and Chevron. Schlumberger moved for summary judgment dismissing Fornah’s claims. Fornah's alleged injuries occurred on a fixed platform in federal waters on the Outer Continental Shelf. It was undisputed that federal jurisdiction is predicated on the OSCLA, as extended by the LHWCA. In order for state law to apply as a surrogate to federal law under OCSLA, three requirements must be met. The parties disputed whether the second requirement, that federal maritime law must not apply of its own force, was met. In support of his argument that maritime law applies of its own force, Fornah merely suggests that the negligence of the Alliance crane operator, while operating the vessel crane, constituted vessel negligence, giving rise to federal admiralty jurisdiction, and with it, the general maritime law. The court was not persuaded that his arguments regarding Alliance's alleged negligence had any bearing on Fornah’s claims against Schlumberger in which Fornah alleged that he was injured moving hoses on a fixed platform. Thus, pursuant to OCSLA, Fornah's negligence claim was governed by the law of Louisiana, the state adjacent to that portion of the seabed where he was injured. The court was compelled adjacent state would be applied to the extent not inconsistent with other federal laws and regulations. Schlumberger submitted that it was entitled to judgment as a matter of law dismissing Fornah's negligence claim against it due to the absence of the threshold duty element and the absence of any evidence of breach of any duty. The court agreed. Independent contractors do not generally owe a duty to protect the employee of another independent contractor beyond the exercise of ordinary care that is owed to the public generally. Absent from the record was any evidence indicating that, on the date of Fornah’s alleged injuries, Schlumberger exercised supervisory control over Fornah or tasked him to handle the hoses. Fornah himself unequivocally admitted that Schlumberger did not directly supervise him. The court concluded that summary judgment in Schlumberger's favor was patently appropriate. Fornah failed to persuade the court that Schlumberger owed Fornah a duty. The record demonstrated that Tetra, not Schlumberger, directed and exercised supervisory control over Fornah at the relevant time. Because there is no genuine controversy to be resolved at trial, Schlumberger was entitled to judgment as a matter of law. Schlumberger's motion for summary judgment was granted. (USDC EDLA, October 23, 2017) 2017 U.S. Dist. LEXIS 174944
COURT DECLINES TO REMAND FRAUDULENTLY PLED JONES ACT CLAIM
COSTANZA, ET AL, V. ACCUTRANS, INC.
Calvin Costanza worked as a tankerman for Accutrans from April 2012 until January , loading and/or unloading cargo from barges, mooring the barges to the dock, monitoring the drafts of the barges to make sure they stayed afloat, and pumping out the ballast tanks if the barges took on water during the loading and/or unloading process. Accutrans provides stevedoring services to various companies operating in the Gulf of Mexico. Costanza was diagnosed with cancer and filed suit in state court against Accutrans, alleging that he was regularly being exposed to toxic substances in the course and scope of his work and that his cancer was a direct result of his exposure to toxic and carcinogenic substances. Costanza filed suit pursuant to the Jones Act, alleging he was employed as a seaman. Accutrans removed the action to federal court, contending Costanza could not seek relief under the Jones Act, as Costanza's seaman status was fraudulently pled. Accutrans invoked the jurisdiction of the court under 28 U.S.C. §§1333, 1441, and 1446. Costanza moved to remand his case to state court and Accutrans opposed the motion. Accutrans argued that Costanza’s Jones Act claim was fraudulently pled, because Costanza lacked a substantial connection to the vessels on which he worked, and never sailed with the barges, or went to sea. When Costanza was working, the tank barges were always moored, unmanned, and had no crew. For those reasons, Costanza was a longshoreman covered by the LHWCA, and was therefore ineligible for relief under the Jones Act. Costanza disputed all of the arguments made by Accutrans. The court found that it was undisputed that the vessels upon which Constanza worked did not fall under common ownership. In his time with Accutrans, Mr. Costanza worked a total of 766 jobs, performing 8223.5 hours of work. These hours were spent working on barges owned by 30 different companies; Costanza spent no more than 11.58% of his time working for any one company. Mr. Costanza did not sail with the vessels, was not a member of a vessel's crew, and did not work aboard the vessels for the duration of their missions. Rather, Mr. Costanza interacted with the vessels to perform a particular service. Because Costanza failed to show that at least 30 percent of his time was spent on vessels, every one of which was under his defendant-employer's common ownership or control, the court Found there was no possibility that Costanza would be able to establish a cause of action under the Jones Act. Costanza’s motion to remand was denied. (USDC EDLA, October 24, 2017) 2017 U.S. Dist. LEXIS 175517
ANOTHER REMOVAL ACTION BITES THE DUST
ARRINGTON V. SEAONUS STEVEDORING NEW ORLEANS, LLC
Eric Arrington alleged an incident, while he was employed as a maritime worker aboard a vessel owned and/or operated by Seaonus Stevedoring New Orleans, LLC. Specifically, Arrington alleged that while he was assisting in moving stacks of plywood aboard the vessel, one of Seaonus’s crane operators dropped a load of materials directly on top of him, resulting in his alleged injuries. Arrington originally filed suit in state court. Shortly thereafter, Seaonus removed the case citing the court's original jurisdiction under 28 U.S.C. §1333 and removal pursuant to 28 U.S.C. §1446(a). Arrington moved to remand the case and Seaonus opposed the motion. Seaonus averred that the case was properly removed as a result of the 2011 amendment to §1441(b). Alternatively, Seaonus requested the court deny Arrington’s request for an award of attorney's fees in light of this issue being a contested issue of law. The court observed that it had previously concluded that claims originally filed in state court are not, and were not made, removable by the recent amendments to the removal statute because there was no independent basis for removal. The court found that fees should be denied because Seaonus had an objectively reasonable basis for seeking removal. Arrington’s motion was denied in part, to the extent that it sought the assessment of attorney fees, expenses, and costs against Seaonus, but the motion to remand was granted. (USDC EDLA, October 23, 2017) 2017 U.S. Dist. LEXIS 176637
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #283. 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 . . .
LOWER COURT ERRED IN NOT FINDING NEGLIGENCE OR RES IPSA LOQUITUR
MANHATTAN BY SAIL, INC. V. TAGLE
Charis Tagle, was allegedly injured, while a passenger on the sailing vessel Shearwater Classic Schooner, when a deckhand unclipped a weighted halyard from the forestaysail at the bow of the vessel and lost hold of it, so that it swung free and struck her in the head. The shipowners offered no evidence explaining why he lost hold of it. The district court ruled that the passenger failed to show negligence or entitlement to application of the doctrine of res ipsa loquitur because a seaman's loss of control of a line can occur without negligence. Therefore, the district court exonerated the vessel owner from liability following the bench trial. Tagle appealed, contending that she had established that the Shearwater's crew breached their duty of care, and argued for application of res ipsa loquitur. Tagle argued that the district court misapplied the doctrine of res ipsa loquitur. The appellate court agreed. That phrase means, "The thing speaks for itself." The doctrine enables a plaintiff to prevail in a certain type of circumstance in proving negligence even though the plaintiff cannot show exactly who or what caused her injury. Under that doctrine, a fact-finder may infer negligence merely from the happening of the event that caused the harm if the event is of a type that ordinarily would not occur in the absence of negligence, is caused by an agency or instrumentality under the exclusive control of the party charged with negligence, and is not due to any voluntary action or contribution on the part of injured party. The district court erred in finding that nothing in the record contradicted the common sense notion that a deckhand exercising due care can lose control of a line. Res ipsa loquitur is not limited to accidents that could occur only because of negligence. For res ipsa loquitur to apply, a claimant must show that the event is of a type that ordinarily does not occur in the absence of negligence. The appellate court found that Tagle's evidence satisfied her burden of making a prima facie showing of entitlement to res ipsa loquitur. Moreover, the shipowners failed to rebut her evidence. Furthermore, the appellate court found that Tagle's evidence was sufficient to prove negligence regardless of whether the res ipsa loquitur doctrine applied. It was established beyond doubt that the accident was caused by the deckhand’s loss of control of the halyard. The only question was whether his failure should be deemed negligent. In short, the evidence adduced at trial gave no reasonable support to any other conclusion than that the deckhand, in a circumstance that posed an obvious danger to Tagle, failed to exercise the combination of skill and care that is required of a seaman, and that his failure was the cause of Tagle's injury. The district court's judgment was vacated, and the case was remanded with instructions that the court enter a finding of negligence as the cause of Tagle's injury. (2nd Cir, October 5, 2017) 2017 U.S. App. LEXIS 19422
Shortly following the appellate court’s ruling above, the City Court of New York adopted that ruling and issued a similar ruling. (NY City 9th Jud. Dist. Ct., October 12, 2017) 2017 NYLJ LEXIS 2887
APPELLATE COURT UPHOLDS FORUM NON CONVENIENS RULING
TROTTER V. 7R HOLDINGS LLC;, ET AL.
Michelle Trotter sued Luis A. Rubi, 7R Holdings, and Rubi’s vessel in the District Court of the Virgin Islands pursuant to the Jones Act and general maritime laws for the personal injury that she claims that she sustained, while descending stairs that connected Rubi’s vessel to the dock in the British Virgin Islands (BVI). Defendants moved to dismiss Trotter's complaint for forum non conveniens. The court granted the motion, relying on Eurofins Pharma U.S. Holdings v. BioAlliance Pharma SA, finding that the alternative forum, the BVI, qualified as an adequate alternative forum and the balance of the public and private interests overcame Trotter's choice of forum. On appeal, Trotter argued that, as a matter of law, the appellate court should vacate the district court's decision because the court failed to perform a choice of law analysis before dismissing Trotter's complaint pursuant to forum non conveniens. Second, Trotter asserted that the appellate court should vacate the lower court’s decision because the court abused its discretion by granting the motion to dismiss pursuant to forum non conveniens. Appellees insisted that these arguments lacked merit. The appellate court agreed, holding that the general presumption that the possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry, applied to Trotter’s claims because the remedy provided by the alternative forum was not clearly inadequate and because the Jones Act does not contain a special venue provision. The appellate court also held that the district court did not abuse its discretion in exercising its forum non conveniens power because the district court correctly determined that an adequate alternative forum existed and because the district court reasonably balanced the relevant private and public interest factors. The appellate court affirmed the district court’s forum non conveniens holding. (3rd Cir, October 12, 2017) 2017 U.S. App. LEXIS 19917
REPREHENSIBILITY FACTOR WARRANTS HIGH PUNITIVE DAMAGES (CONT.)
WARREN V. SHELTER MUTUAL INSURANCE COMPANY, ET AL.
Ron Warren, individually and on behalf of the Estate of Derrek Hebert, filed a petition for damages seeking to recover for the wrongful death of his son, Derek Hebert, in a recreational boating accident under general maritime law and products liability. The accident occurred on the navigable inland waters of Louisiana. The decedent was a passenger in a Champion boat owned by Glen Vamvoras and operated by his son Daniel Vamvoras. The hydraulic steering system manufactured by Teleflex suddenly failed, causing the boat to turn violently. The boat went into a spin, throwing decedent overboard. The boat's propeller struck him nineteen times, causing his death. The jury found in favor of Teleflex during the initial trial; however, the trial court subsequently granted Warren's motion for new trial based on prejudicial error during the first trial. At the conclusion of the second trial, the jury rendered a verdict in favor of Warren and against Teleflex, awarding compensatory damages of $125,000 and punitive damages of $23,000,000. The court of appeals affirmed [see August 2016 Longshore Update]. The Louisiana Supreme Court granted Teleflex's writ application mainly to review whether the trial court properly granted the Warren a new trial and whether the award of punitive damages was excessive and resulted in a violation of the defendant's right to constitutional due process. The plaintiff countered that there was no bright line rule and that Exxon did not set a recovery cap for punitive damages in all maritime cases at a 1:1 ratio. Although Exxon may not have set forth a "recovery cap" per se, the Supreme Court found the court in Exxon was expressly attempting to set a "fair upper limit" for punitive damages "in cases with no earmarks of exceptional blameworthiness within the punishable spectrum, cases without intentional or malicious conduct, and without behavior driven primarily for gain, and cases without the modest economic harm or odds of detection that have opened the door to higher awards. Turning to the appellate court's analysis of the jury's punitive damages award under the guidelines set forth in BMW, the court of appeal noted the jury had found Teleflex's conduct to be reckless and to demonstrate callous disregard for the safety of its users. The court found such conduct particularly egregious. The Supreme Court agreed noting that it had already found Teleflex's conduct to be negligent for the purpose of finding liability and awarding compensatory damages, and further agreed the evidence supported a finding that its conduct was wanton, reckless, or in callous disregard for the safety of others. It similarly find the evidence weighed in favor of an award of punitive damages; however, it did not necessarily find Teleflex's conduct places it at the extreme end of the reprehensibility spectrum as the court of appeal concluded. Lastly, the Supreme Court found little support in the record for the conclusion that the harm caused was the result of intentional malice, trickery, or deceit. Accordingly, although the Supreme Court agreed that Teleflex's conduct was reprehensible, and certainly within the punishable spectrum, it declined to say the record supported a finding that Teleflex's conduct was on the extreme end of "malicious behavior and dangerous activity carried on for the purpose of increasing a tortfeasor's financial gain. The Supreme Court found that the award of punitive damages in the amount of $23,000,000 was higher than reasonably required to satisfy the objective of punitive damages awards: punishment, general deterrence, and specific deterrence and violated the defendant's due process rights. In its view, based on the actual harm, and the relevant compensatory damages as outlined in the Exxon line of cases, the Supreme Court found that a punitive damage award of $4,250,000, with a ratio of 2:1 to relevant compensatory damages of $2,125,000, more appropriately furthers the goal of punitive damages, that is, to punish and to deter future conduct, while protecting the defendant's right to due process. Accordingly, the jury's award of punitive damages was amended to $4,250,000, and affirm as amended. Notwithstanding a strong dissenting opinion, with respect to the trial court’s grant of a new trial, the majority found no reversible error in the trial court's rulings; however, we it found the award of punitive damages was excessive and resulted in a violation of the defendant's right to constitutional due process. The lower court's judgment was affirmed in part, amended to award $4,250,000 in punitive damages to the plaintiff, and affirmed as amended. (La. Sup. Ct., October 18, 2017) 2017 La. LEXIS 2318
COURT ORDERS JONES ACT SEAMAN TO ARBITRATE HIS CLAIMS (CONT.)
MACRURY V. AMERICAN STEAMSHIP COMPANY
Mark MacRury filed a seaman’s complaint against American Steamship Company (ASC), alleging that he suffered an injury while working as a crew member on one of ASC’s vessels because ASC negligently assigned MacRury to activities it knew or should have known would result in injury. ASC filed a motion to stay litigation in favor of arbitration. ASC maintained that MacRury was working as a conveyorman on one of its vessels, when he suffered a shoulder injury. MacRury and ASC had previously executed a Claims Arbitration Agreement. It was the position of ASC that ASC was responsible only for maintenance and cure and was not responsible or liable for any other damages in regard to MacRury's alleged illness or injuries under the doctrine of unseaworthiness, the Jones Act or any other applicable law. Nonetheless, ASC was prepared to make advances against settlement, arbitration award or judgment of any claim that could arise under the doctrine of unseaworthiness, the Jones Act, or any other applicable law provided MacRury agreed to arbitrate those claims. Therefore, in consideration of MacRury agreeing to arbitrate all claims against ASC, it agreed to pay MacRury $86.80 per day, in addition to $16.00 per day in maintenance and $188 per week CSB, as an advance against settlement, arbitration award or judgment, until he was declared fit for duty, and/or maximum medical improvement, and/or for one year, whichever occurred first. The court ordered that ASC’s motion to stay and compel arbitration be granted and directed the parties to arbitrate MacRury's claims in accordance with its order and the arbitration agreement [see August 2017 Longshore Update]. MacRury filed a motion for leave to file a second amended complaint and to lift the stay. ASC opposed the motion. MacRury's proposed second amended complaint, alleged that ASC was aware that the everyday activities of MacRury’s job assigned had resulted in shoulder injuries to MacRury, resulting in surgery, but ASC, did, nevertheless, negligently assign MacRury to work activities involving heavy lifting, reaching and holding maneuvers in non-ergonomically correct positions when it knew or should have known that such assignments would result in new injury, separate, apart and exclusive of any pre-existing conditions, because of the inadequate work procedures, assistance, and equipment he was provided, whereby new, distinct injuries occurred to both shoulders resulting from said failure to provide a safe place to work and seaworthy vessel. The arbitration agreement identified by ASC demonstrated both that MacRury had a pre-existing condition and that ASC was aware of it. Because the only identified basis for a negligent assignment claim was the subject of that arbitration agreement, the court compelled arbitration. MacRury sought leave to amend his complaint to correct the missteps identified in the court's previous order. Although MacRury's third attempt to plead a claim for negligent assignment was not a paragon of clarity, the court concluded that it sufficed to move beyond a formulaic recitation of the labels and conclusions necessary for a negligent assignment cause of action, in that MacRury alleged that the negligent assignment resulted in new, distinct injuries to both shoulders. While the changes in the amended complaint were not extensive, but they were significant. Although, MacRury did not identify a cause of the injuries other than the everyday activities of his job, a negligent assignment cause of action did not necessarily require that the pre-existing condition have resulted from a single incident. Nevertheless, because MacRury had now identified a pre-existing injury which ASC allegedly had notice of, that has no possible relationship to the arbitration agreement, the court found that the proposed changes were not futile. There was, admittedly, ambiguity regarding whether MacRury's current claim for negligent assignment partially arose out of the injury which was the subject of the arbitration agreement. But the court found that MacRury adequately alleged that he had sustained prior injuries to both his shoulders. As such, MacRury had alleged an independent and adequate factual basis by which he could prevail on his negligent assignment claim. For that reasons (and because MacRury's current claim is legally distinguishable from the arbitrable claims, despite factual similarities), the court held that arbitration was not appropriate, and the stay was lifted. MacRury's motion for leave to file a second amended complaint was granted and the prior stay imposed by the court was lifted. (USDC EDMI, October 25, 2017) 2017 U.S. Dist. LEXIS 176340
QUESTIONS OF FACT REMAIN ON PLAINTIFFS’ PUNITIVE DAMAGES CLAIM (CONT)
KNUDSON V. M/V AMERICAN SPIRIT, ET AL.
Jeffery Knudson was hired by Liberty Steamship Company as a permanent replacement worker after Liberty’s negotiations with the union representing Liberty’s unlicensed seamen failed to reach a collective bargaining agreement. Knudson was a non-union employee. Knudson was allegedly injured while serving aboard a Great Lakes freighter owned by American Steamship Company. American moved for judgment as a matter of law in its favor on Knudson's Jones Act claim. In his reply brief, Knudson conceded he had no viable Jones Act claim against American. However, Knudson moved for leave to amend to plead a cause of action for negligence against American as a third party. Liberty moved for judgment as a matter of law on Knudson’s unseaworthiness claim for the reason that it is not the vessel owner. Knudson conceded that he had no viable claim for unseaworthiness against Liberty, so the court granted judgment as a matter of law in favor of Liberty on Knudson’s unseaworthiness claim. While Knudson conceded that Liberty eventually provided a proper amount of maintenance, he nonetheless argued that he was entitled to punitive damages because they willfully and egregiously delayed making such payments. Liberty responded that Knudson was not entitled to maintenance in the first place, let alone to punitive damages, because he resided with his father and did not incur any living expenses. The court noted that Knudson is a 52 year old adult who claims he was forced to live with his father out of economic necessity. Knudson admitted that he did not pay rent or utilities, but contended he had an agreement with his father to reimburse him for the support provided. The court found that there was an issue of fact whether Liberty acted in bad faith with regard to the delay in paying maintenance benefits. Similarly, there was an issue of fact whether Knudson had an arrangement with his father to pay him back for living expenses when he was able to do so. Defendants’ motion for partial judgment on the pleadings was denied as to punitive damages for maintenance and cure and granted as to punitive damages for unseaworthiness [see September 2017 Longshore Update]. Knudson moved for reconsideration of the court's order insomuch as the order dismissed plaintiff's claim for punitive damages for personal injury caused by unseaworthiness. Knudson also filed a contingent motion to certify order for interlocutory appeal and to stay proceedings pending appeal. American and Liberty moved for reconsideration or alternatively for certification of interlocutory appeal. The court had previously concluded that punitive damages were not available in unseaworthiness actions and granted defendants' motion for partial judgment on the pleadings. The court relied on Miller v. American President Lines, which held that punitive damages were not available in unseaworthiness actions for wrongful death. Knudson’s case alleges an unseaworthiness claim for non-fatal personal injuries, but not wrongful death. Knutson urged the court to reconsider its reliance on Miller, and to recognize that punitive damages are available in unseaworthiness actions involving personal injury. The court agreed and granted his motion for reconsideration, noting that Knudson’s case was distinguishable from Miller in that Knudson's claim is not one for wrongful death, but rather for personal injuries due to unseaworthiness. General unseaworthiness claims involving personal injury, as opposed to wrongful death, were recognized at common law prior to the Jones Act. Furthermore, punitive damages were available for maritime claims at common law. Congress has not legislated to limit recovery of non-pecuniary loss in a seaman's action for non-fatal injuries. Applying the reasoning of Townsendand Miles, the court found that Knudson may seek punitive damages for personal injuries in his unseaworthiness claim against defendants. In its order, the court also held that punitive damages are recoverable for maintenance and cure, finding an issue of fact whether defendants in this case acted in bad faith with regard to the delay in paying maintenance benefits. Defendants have moved for reconsideration of the court's denial of their motion for partial judgment on the pleadings on this issue. The court denied defendants' motion for reconsideration. The same reasoning supported the court's prior opinion concluding that Knudson could pursue his claim for punitive damages due to defendants' alleged bad faith delay in paying maintenance benefits. The court was not of the opinion that such order involved a controlling question of law as to which there was substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. Knudson’s motion for reconsideration was granted, and his contingent motions to certify order for interlocutory appeal and to stay proceedings pending appeal were denied as moot. Defendant's motion for reconsideration or alternate motion for certification of interlocutory appeal was denied. (USDC EDMI, October 24, 2017) 2017 U.S. Dist. LEXIS 175727
COURT GRANTS SUMMARY JUDGMENT ON UNSEAWORTHINESS CLAIM
CONKLIN V. SPECIALIST, LLC, ET AL.
Timothy Conklin and Harry Hernandez were both seamen employed aboard the towing vessel "SPECIALIST," when it had an allision with a crane barge at the Tappan Zee Bridge. As a result of the allision, both Conklin and Hernandez died. Weeks Marine, Inc. owned a tug involved in the same tow as the “SPECIALIST.” Claimants allege that, as part of a flotilla, each of the tugs were the "dominant mind" in connection with the towing operation. Weeks Marine moved to dismiss the affirmative unseaworthiness claims asserted by the estates of Conklin and Hernandez, arguing that an unseaworthiness claim may only be asserted by a limited group of people, including seaman and certain others who are injured while performing a seaman's duties. The resolution of Weeks Marine’s motion depended on whether, at the time of the allision, Conklin and Hernandez were seamen, performing seaman's work, on board any Weeks Marine vessel. Based on the plain and clear allegations of the two amended claims, the court concluded that the answer to the question was a resounding “no.” Neither Conklin nor Hernandez alleged that they were, at any point, performing seamen's work in more than a temporary or transitory capacity aboard a Weeks Marine vessel. In fact, neither Conklin nor Hernandez allege that they were ever on board a Weeks Marine vessel at all. At best, the claimants asserted that the vessel on which they were performing a seaman's duties was in a flotilla with Weeks Marine vessels. The Court pointed out that the mere allegation of being part of a flotilla was insufficient to support a claimant's status as a seaman on board each vessel, let alone that the specific work in which he was engaged can constitute a seaman's work on board such vessel. Accordingly, the claimants' allegations were insufficient as a matter of law to support affirmative unseaworthiness claims against the Weeks Marine vessels. Weeks Marine's motion to dismiss was therefore granted. (USDC SDNY, October 6, 2017) 2017 U.S. Dist. LEXIS 166571
COURT FINDS MCCORPEN DEFENSE SUCCESSFUL ON SUMMARY JUDGMENT
WHEELER V. TRANSOCEAN OFFSHORE, USA. INC., ET AL.
Robert Wheeler was employed with Schlumberger Technology Corporation as a Jones Act seaman, in his capacity as a compliance engineer aboard the drill ship, when he allegedly sustain injuries. According to Wheeler he sustained injuries to his neck and left shoulder when he slipped and fell in a shower aboard a drill ship. The drill ship, owned and operated by Transocean Offshore Deepwater Drilling, Inc. , was performing mining operations for Freeport-McMoran Oil & Gas LLC. Wheeler contended that the accident was the result of negligence attributable to the defendants, and asserted causes of action for Jones Act negligence, unseaworthiness, and maintenance and cure. Defendants moved for partial summary judgment as to Wheeler’s maintenance and cure claims, asserting that Wheeler was not entitled to maintenance and cure benefits, related claims for punitive damages, or attorney's fees pursuant to the doctrine set forth in McCorpen, because Wheeler concealed medical information at the time of his hiring and physical examination, withheld information that was material to Schlumberger's decision to hire, and a nexus existed between Wheeler’s pre-existing conditions and the alleged injuries that he sustained. Defendants maintained that there were no genuine issues of material fact which would preclude the court from granting summary judgment. The court agreed that the record showed that Wheeler had several ailments affecting different parts of his body, including his neck and left shoulder, prior to his employment with Schlumberger. Wheeler opposed the motion, relying on the fact that his employment application did not contain any questions regarding his medical condition. However, the court noted the record showed that the employment application was only the first step in a multi-step hiring process. In particular, Wheeler underwent a physical examination, during which he denied any significant past medical history. The court found that Wheeler intentionally concealed medical information from his employer during the hiring process. Finally, the court found that the third McCorpen prong was satisfied by the neck and shoulder injuries pre-existing Wheeler’s employment with Schlumberger. The court concluded that defendants had mounted a successful McCorpendefense and granted the motion for partial summary judgment. Wheeler’s maintenance and cure claims, including punitive damages, and attorney's fees related to his claims for maintenance and cure benefits were dismissed with prejudice. (USDC EDLA, October 2, 2017) 2017 U.S. Dist. LEXIS 162142
SEAMAN STIPULATES THAT HE IS NOT ENTITLED TO MAINTENANCE & CURE
C&G WELDING, INC. V. SMITH
This action arose from injuries that Allen Smith, Jr. allegedly suffered to his lower back and shoulder, while working for C&G Welding, Inc. as an oiler. C&G files a declaratory judgment action averring that Smith had demanded maintenance and cure benefits from C&G, and alleged that Smith had injured his lower back in 2006 while working for another employer, filed a suit relating to that injury, and failed to disclose the injury to C&G in 2012 when Smith applied for his job. C&G sought a declaratory judgment that Smith was not entitled to maintenance and cure benefits. Smith stipulated that he was not seeking maintenance and cure from C&G, and was owed none, and moves to dismiss C&G’s complaint for lack of an actual controversy. Since Smith stipulated on the record that he did not seek maintenance and cure benefits, and because this was the only issue on which C&G sought a declaratory judgment, there remained no controversy. Smith motion to dismiss was granted. (USDC EDLA, October 25,2017) 2017 U.S. Dist. LEXIS 176406
COURT ORDERS REINSTATEMENT OF MAINTENANCE & CURE
CONGER V. K&D FISHERIES LLC, ET AL.
Hanna Conger was allegedly injured aboard a K&D Fisheries fishing vessel, when a full tote of fish dropped on her left foot. However, she apparently did not seek any medical attention while in service of the vessel. Conger did eventually seek treatment for her foot injury and K&D began maintenance payments. The maintenance payment continued until Conger’s treating doctor reported that Conger was running four days a week and hiking with occasional discomfort, that further PT or an MRI was not recommended, and that Conger had no follow-up appointment scheduled. After K&D cut off maintenance payments, Conger filed suit and moved for reinstatement of her maintenance and cure, arguing that she was entitled to maintenance and cure until a medical professional has determined that she has reached maximum cure, which had not yet occurred. K&D opposed the motion, arguing that the record evidences Conger had reached maximum cure, and therefore they were no longer required to pay maintenance and cure. After argument and a review of the evidence, the court found that Conger had demonstrated that there was ambiguity on the question of whether she has achieved maximum cure. Although her treating physician left open any follow up appointments, he also recommended continuing diligent home PT with foot stretching, intrinsic strengthening and massage which would "likely maximize her improvement." K&D had no medical evaluations to the contrary or that state no more improvement is likely to be made, but do point to the fact that Conger is running four days a week, hiking with only occasional intermittent discomfort, and that shortly after her last exam Conger left for a multi-month backpacking trip across Mexico. Nevertheless, the court found equivocation in regard to whether Conger had achieved maximum cure. As a result, K&D was ordered to reinstate maintenance and cure from the date of suspension of payments until the matter has been definitively resolved by the court. Conger also requested attorney's fees in the amount of $1,350 for bringing her motion. The court found that there was no evidence showing K&D was arbitrary, recalcitrant or unreasonable in discontinuing maintenance and cure payments. Accordingly, Conger’s request for attorney's fees was denied. (USDC WDWA, October 20, 2017) 2017 U.S. Dist. LEXIS 174290
In a later order in this same case, defendants moved for reconsideration, noting that they have filed a motion for summary judgment seeking dismissal of this case for lack of jurisdiction, or, in the alternative, transfer to the District of Alaska. The court directed Conger to respond to the motion for reconsideration. Conger responded agreeing to a transfer. Accordingly, the court granted defendants' motion for reconsideration and the court's prior order reinstating Conger’s maintenance and cure was vacated. The court noted that nothing in the court’s order precluded Conger from re-filing her motion in the U.S. District Court for the District of Alaska should she feel such action is necessary. Defendant's motion for summary judgement was granted, and the case was transferred to the District of Alaska for resolution. (USDC WDWA, October 26, 2017) 2017 U.S. Dist. LEXIS 177883
JURIST BENDS OVER BACKWARDS FOR SEAMAN ON MAINTENANCE & CURE
ZERMENO V. NORTH PACIFIC FISHING, INC.
Jonathan Zermeno asserted claims under the Jones Act and under general maritime law based on injuries he allegedly suffered on a fishing vessel owned by North Pacific Fishing, Inc. Zermeno claimed he was working on a vessel assembly line processing fish in high seas. The man at the next station in line tossed a bag of frozen fish toward a chute leading down to the freezer. There were already bags of fish in the chute area, and the newest arrival fell onto the floor, then onto Zermeno’s left leg, allegedly causing him injury. Plaintiff was given ice and an anti-inflammatory on board, then referred to the local clinic for medical care. He did not return to the vessel. A series of orthopedic, neurologic, and general medicine appointments were inconclusive regarding the cause of plaintiff's ankle weakness and pain. North Pacific moved for summary judgment seeking dismissal of all of the claims asserted. Zermeno was evaluated by an independent medical examiner at North Pacific’s request. The examining doctor concluded that there was nothing objectively wrong with Zermeno, that his condition was fixed and stable, and that he had reached maximum medical cure. Meanwhile, the neurologist to whom Zermeno had originally been referred declined to offer a second opinion in the case. North Pacific immediately recognized its duty to provide maintenance and cure for the injuries Zermeno suffered on board its vessel and made appropriate payments. It then sought a summary determination that the duty expired. The court noted that North Pacific had unilaterally discontinued maintenance and cure payments, creating a presumption that maintenance and cure continues and it became the shipowner's burden to prove by a preponderance of the evidence that Zermeno reached maximum cure on or before the date payments were terminated. The court concluded the North Pacific had not established this fact as a matter of law. At the time it discontinued the maintenance payments, there was no medical determination or factual basis from which defendant could reasonably conclude that maximum medical cure had been achieved. To the extent defendant relies on the opinion of the IME, the examination report was not generated until after North Pacific had already discontinued payments, and its findings could not have justified a termination of benefits three weeks earlier. In addition, there was no indication that Zermeno’s treating physician agreed with the IME's assessment given his continuing attempts to schedule a consult. The court found that there was at least an issue of fact regarding the reasonableness of Zermeno’s failure to pursue the neurological consult after North Pacific declared that its obligation to pay seaman's benefits had come to an end. Turning to Zermeno’s unseaworthiness claim, the court found that a reasonable fact finder could not conclude, based on the existing record, that the crew was incompetent or otherwise unfit for their tasks. However, the court found there were question of fact regarding Zermeno’s other theory of unseaworthiness and his Jones Act negligence claim Zermeno failed to cite any authority or support for his request for costs and fees incurred in responding to North Pacific’s motion, so the court denied the request. North Pacific’s motion for summary judgment was granted in part and denied in part. Zermeno’s unseaworthiness claim based on the incompetence or lack of training of the crew was dismissed; however his other claims were allowed to proceed to trial. (USDC WDWA, October 26, 2017) 2017 U.S. Dist. LEXIS 177756
COURT REJECTS SEAMAN’S IMAGINARY WORKPLACE INJURY
O'BRYANT V. GRAY INSURANCE COMPANY, ET AL.
Timothy G. O'Bryant filed suit against Seacor Marine, LLC, Longnecker Properties, Inc., and The Gray Insurance Company alleging Jones Act negligence and general maritime law claims for injuries he allegedly sustained in the summer of 2014, during his employment with Longnecker. Defendants moved for summary judgment, arguing there was no evidence that O'Bryant reported the injury to his employer, Longnecker. In addition, the medical records from his treating physician, as well as the physician’s deposition testimony indicated that O'Bryant did not receive any treatment until December 18, 2014, at which time he reported that he injured his right shoulder one month earlier and was treated at the emergency room, and O'Bryant asserted that his injury was not work related on multiple occasions and that the injury was the result of a fall from a shed on November 14, 2014. In addition, there were no fact witnesses to support O'Bryant's claim regarding the alleged workplace accident. O’Bryant opposed the motion requesting that the court either deny or defer the motion because of the state of discovery. The court agreed with defendants that there was no evidence that the workplace accident occurred. Additionally, defendants correctly asserted that O'Bryant lacked the necessary medical evidence to meet his burden of proof in establishing that his alleged workplace accident was causally connected to his shoulder injury, a torn rotator cuff. Therefore, because O’Bryant failed to produce any evidence causally relating his right shoulder injury to the alleged workplace accident, granting summary judgment in favor of defendants was appropriate. Defendants' motion was granted, and O'Bryant's claims for negligence under the Jones Act and general maritime law, for unseaworthiness, and for maintenance and cure, related to an alleged workplace injury to his right shoulder, were dismissed with prejudice. (USDC EDLA, October 4, 2017) 2017 U.S. Dist. LEXIS 164478
PARENT’S MULTIPLE CAUSES OF ACTION IN DEATH CASE DISMISSED
IN RE MAGNOLIA FLEET
This limitation action arose out of a vessel capsizing, allegedly causing the death of James D. Swafford. Magnolia Fleet, LLC, as owner, and River Construction, Inc., as operator, of the vessel filed a Complaint for Exoneration or Limitation of Liability. The court issued a stay of the prosecution of any proceedings outside of the limitation action. Carla Guileyardo, Jeffrey Jenkins, American Longshore Mutual Association, Ltd., and Carl Swafford answered with claims in the matter. Petitioners moved to dismiss all claims by Carl Swafford, the decedent's father. Swafford brought claims for loss of future earnings, mental and emotional pain and suffering, loss of consortium, loss of love and affection, punitive damages, and pecuniary damages. Petitioners argued that Swafford could not recover any of the claimed damages, and therefore his claims must be dismissed. Petitioners first seek dismissal of Swafford's claim for survival damages, since under both the Jones Act and general maritime law, only the personal representative of a decedent's estate has standing to sue for survival damages. It was undisputed that Swafford was not the representative of the decedent's estate. He therefore did not have standing to recover survival damages, and those claims were dismissed. Petitioners sought dismissal of Swafford's claim for wrongful death damages, arguing it was well settled that a parent of a Jones Act seaman killed in service of a vessel can only recover wrongful death damages if the seaman is not survived by a child or spouse. The court agreed, noting the decedent was survived by a child. Accordingly, Swafford was not entitled to wrongful death damages under the Jones Act, and those claims were dismissed. The court also dismissed Swafford's claims for non-pecuniary damages, noting that damages under the Jones Act and general maritime law are limited to pecuniary losses. Petitioners argued that Swafford could not prove his claim for pecuniary damages, because Swafford did not receive any support or household services from his son prior to his death. Swafford failed to prove otherwise, so the court held petitioners were entitled to summary judgment on Swafford's claim for pecuniary damages. Finally, the court dismissed Swafford's claim for punitive damages for petitioners' failure to pay maintenance and cure, since Swafford was not a seaman and not entitled to maintenance and cure benefits. The claims of Carl Swafford were dismissed with prejudice. (USDC EDLA, October 13, 2017) 2017 U.S. Dist. LEXIS 169651
In a later ruling in this same case, the court addressed Jenkins's motion to dismiss, limitation petitioners' motion for summary judgment on Jenkins's punitive damages claim and Jenkins's motion for summary judgment on limitation of liability. In the first motion, Jenkins adopted a former motion by Guileyardo, arguing that River Construction was not entitled to limitation of liability because it was not an owner of the vessel. By all accounts, the relationship between River Construction, Magnolia Fleet, and the vessel was an unusual one. The relationship between the parties for the use of the vessel could not be classified as a traditional charter party agreement. The court found the question of whether River Construction had the requisite dominion over the vessel to entitle it to limitation of liability to be a difficult question of fact and that there was insufficient information before it at this summary judgment stage to conduct a full factual analysis. Accordingly, Jenkins's motion was denied. In the second motion, petitioners sought dismissal of Jenkins's claim for punitive damages. Petitioners alleged that notwithstanding Jenkins's classification as a seaman or longshoreman, he could not succeed in his claim for punitive damages. Jenkins conceded that if he is classified as a seaman he cannot, as a matter of law, bring a claim for punitive damages against his employer River Construction. Accordingly, Jenkins may only bring a punitive damages claim if he is ultimately classified as a longshoreman. Petitioners argued though that even if Jenkins is a longshoreman, he could not prove his claim for punitive damages under general maritime law. Petitioners strongly disputed the facts set forth by Jenkins, but these arguments only further established the issues of fact that abound in this motion. Accepting Jenkins facts as true, the court did not find it implausible that petitioners may have acted recklessly, but the court was not prepared to rule that such conduct could not rise to the level of gross negligence. Accordingly, petitioners' motion was denied. In the last motion, Jenkins argued that petitioners are not entitled to limitation of liability. The court pointed out that it had already ruled that genuine issues of material fact regarding the adequacy of training, the causation of the accident, and even Jenkins's seaman status abounded. Accordingly, resolution of these issues on summary judgment would be inappropriate. Jenkins's motion was denied. (USDC EDLA, October 19, 2017) 2017 U.S. Dist. LEXIS 173096
SUMMARY JUDGMENT GRANTED IN FAVOR OF SHIPOWNER
GOWDY V. MARINE SPILL RESPONSE CORPORATION, ET AL.
James Gowdy sued Marine Spill Response Corporation (MSRC) alleging that he injured his left foot while he was working as a temporary worker aboard its vessel. When the lawsuit was originally filed, Gowdy was represented by counsel. His counsel withdrew shortly thereafter, and Gowdy chose to proceed pro se for the majority of this lawsuit. MSRC moved for summary judgment, alleging that Gowdy had a pre-existing medical condition, and that he could not establish medical causation as a matter of law. In support of its motion for summary judgment, MSRC presented a medical opinion from a bio-mechanical expert certified in accident reconstruction, who stated that he had reviewed evidence and discovery, including the pleadings, Gowdy's statements about the accident, records of Gowdy's medical treatment, and photographs of the worksite, and that it was his medical opinion that Gowdy's alleged injury to his foot "would not" have occurred from the chain of events that Gowdy described, and the problems Gowdy experienced with his left foot were instead the result of his pre-existing diabetes. Accordingly, MSRC contended that there was no evidence that Gowdy was injured by any acts, omissions, or possible negligence on the part of MSRC. Gowdy challenged the expert opinion that MSRC relied upon, contending the expert must have been misled as to the height at issue and that the expert had not personally visited the accident site. Gowdy also submits documents that appear to be summaries from recent doctor visits to challenge the expert's opinion. However, the court noted that the summaries were incomplete, redacted, and unauthenticated and not accompanied by a business records affidavit. Further, these summaries were not accompanied by any expert explanation or opinion, and thus without the required context needed to challenge MSRC expert’s opinion. Given the facts of the case as presented by the summary judgment evidence, the court found that Gowdy had failed to raise a genuine dispute of material fact and that MSRC was entitled to summary judgment in its favor. MSRC’s Motion for summary judgment was granted. (USDC SDTX, October 27, 2017) 2017 U.S. Dist. LEXIS 178252
COURT TAKES STRONG EXCEPTION TO DECLARATORY JUDGMENT ACTION
SALTY DAWG EXPEDITION, INC., ET AL. V. BORLAND
Six months after Kevin Borland allegedly injured his back while standing watch aboard a vessel owned and operated by Salty Dawg Expeditions, Inc., Borland's counsel demanded maintenance and cure. Forty-eight hours after receiving the demand letter, Salty Dawg and David Bock, who owns Salty Dawg Expedition, Inc., sued for a declaratory judgment that Salty Dawg and Bock owed no maintenance and cure because Borland failed to qualify as a "seaman" under the Jones Act. The court initially noted that the Jones Act unambiguously protects the right to a jury trial. However, Bock and Salty Dawg argued that their expedient declaratory judgment and the consequent invocation of FRCP 9(h) extinguished Borland's statutory and constitutional right to a jury trial. Borland opposed the motion to strike his request for a jury trial. Despite the apparent availability of a jury trial, Salty Dawg and Bock argued that the declaratory judgment request, which invoked Rule 9(h), extinguished Borland's right to a jury trial. The court disagreed, noting that the request for a declaratory judgment, which duplicated several of Bock and Salty Dawg's affirmative defenses, merely denied liability based on Borland's alleged failure to qualify as a seaman. Second, even if the declaratory-judgment request asserted a "claim," Rule 38(e) precluded a jury trial on issues in a claim that is an admiralty or maritime claim. Third, the invocation of the Declaratory Judgment Act in an apparent attempt to prevent Borland's exercise of his statutory and constitutional right to a jury trial contravened the Supreme Court's repeated instruction that the Declaratory Judgment Act leaves substantive rights unchanged. Bock and Salty Dawg also requested a separate bench trial on the issue of seaman status to avoid prejudice and to promote judicial economy. The court found the request warranted denial for at least two reasons. First, the Jones Act and the saving-to-suitors clause entitle Borland to a jury trial. Second, two trials in the action would waste the parties' and judiciary's resources. Bock and Salty Dawg’s motion to strike Borland's demand for a jury trial or to bifurcate the issue of Borland's seaman status was denied. (USDC MDFL, October 19, 2017) 2017 U.S. Dist. LEXIS 173110
EVERYONE IS POINTING THE FINGER OF BLAME AT SOMEONE ELSE
CONTINENTAL INS. CO., ET AL. V. L&L MARINE TRANSPORTATION INC., ET AL.
Three vessels were tasked to transport one barge on the Mississippi River. Unfortunately, one of those vessels allided with a bridge and sank, rendering it a total loss. The bridge was also damaged. Now, the vessels' owners, insurers, and those personally injured during the allision are seeking to determine whether the other two vessels were negligent and unseaworthy, and thus liable for the resulting losses and injuries. Joshua Deranger, a deckhand on the vessel that sank, was still in the engine room during the allision. When the water flooded the room, it moved a storage box, trapping Deranger's leg between the box and the starboard engine. A fellow crew member helped to free him, but Deranger was still allegedly injured. The insurers of the owner of the sunken vessel, Western Rivers Boat Management, Inc., initiated the present case, by filing a complaint against L&L Marine Transportation, Inc. They alleged that the defendants caused the allision, were unseaworthy, and were negligent in their training of the master and crew, in their failure to equip the vessels with proper navigational tools, and in their navigation. In a separate action, L&L filed a complaint for exoneration from, or in the alternative limitation of liability. The court issued an injunction restraining the prosecution of any claims until the court determined whether the vessels' liability should be limited or exonerated. Shortly thereafter, the court consolidated these claims into a master case. Joshua Deranger moved the court to grant partial summary judgment in his favor and to determine that, as a matter of law, L&L was not entitled to exoneration or limitation of liability. Deranger contended that L&L had knowledge and privity of the unseaworthy conditions of one of the vessels involved in the allision, the “ANGELA RAE.” Deranger provided five reasons why ANGELA RAE was unseaworthy at the inception of the voyage: (1) It did not have a policy in place outlining the responsibilities of being the lead tug. (2) The crew was not trained of the responsibilities of lead tug. (3) There was no meeting with all three vessel captains to discuss and assign their responsibilities. (4) The vessel did not adequately communicate with the assist vessels after his vessel began experiencing engine problems. (5) The vessel employed an incompetent crew. In support of his contentions, Deranger submitted an expert report. L&L submitted expert evidence to rebut Deranger's claims. The court concluded that the parties' submitted evidence demonstrating that there were genuine disputes of material fact as to what was the proximate cause of Deranger's injuries. No one contested Deranger's claims that L&L failed to provide a lead vessel policy, host a meeting to determine each vessels responsibilities, or specifically train the crew in its responsibilities as a lead vessel. But Deranger failed to show that those shortcomings were a substantial part in bringing about the injury and that the injury was the reasonable probable consequence of their conduct. It was not clear that had there been a policy in place and had the parties agreed on their roles ahead of time. Further, L&L submitted evidence implicating another’s actions as the proximate cause of Deranger's injuries. Because the parties have submitted evidence displaying a genuine dispute of fact as to which party proximately caused Deranger's injury, summary judgment was not proper and Deranger’s motion was denied. (USDC EDLA, October 26, 2017) 2017 U.S. Dist. LEXIS 177581
COURT EXCLUDES LESLIE ESCHETE AS PLAINTIFF’S LIABILITY EXPERT
O'BRYANT V. GRAY INSURANCE COMPANY, ET AL.
In this case the court addressed defendants’ motion in limine to exclude Timothy O’Bryant’s proposed liability expert, Leslie Eschete, maintaining that Eschete lacked the requisite expertise to offer the opinions set forth in his report, and further, that such opinions are unfounded and inadmissible under Federal Rule of Evidence 702 and Daubert. O’Bryant opposed the motion. Assuming without deciding that Eschete was, in fact, an expert in maritime industry areas, including maritime safety and the duties of a captain of a vessel similar to the one involved in the case, the court turned to the specific opinions offered by Eschete regarding the incident on board the vessel, on which O'Bryant claimed to have injured himself as a result of slipping and falling in the shower. The court found Eschete's opinions were problematic for several reasons. Even before considering Eschete's opinions, the court noted that they were based upon his examination of thirteen photographs of a shower stall, provided by plaintiff's counsel, represented to be the shower stall in which O'Bryant was injured. Eschete admitted that he had no knowledge as to who took the photographs and when the photographs were taken; thus there was no evidence, and no reason to believe, that the photographs accurately represent the condition of the shower stall on the date of O’Bryant’s slip and fall. Although Eschete cited to certain OSHA provisions that might be pertinent for consideration, he failed to apply those provisions to formulate his opinions. Additionally, the court found that Eschete's individual opinions were not helpful. There was no evidence, and no supported opinion, that the vessel captain or anyone else committed acts or omissions that fell below the expected care to be exercised. After reviewing all of Eschete’s unsupported opinions, the court granted defendants’ motion in limine and excluded O’Bryant’s liability expert. (USDC EDLA, October 18, 2017) 2017 U.S. Dist. LEXIS 172275
PRO SE CLAIMANT HAS A LITTLE DIFFICULTY WITH HER CAUSES OF ACTION
GRANT V. ENTERTAINMENT CRUISES, INC., ET AL.
Tamea Grant, a deckhand on a cruise ship, allegedly suffered injuries during a docking incident. She brought these consolidated pro se actions against the cruise line and its parent, invoking the District of Columbia's Occupational Safety and Health Act, the District's Industrial Safety Act, and the Jones Act. Defendants moved to dismiss, contending that the first statute provides no private right of action and that claims asserted under the latter two were insufficiently pled. In her first and third causes of action, Grant asserted that defendants violated provisions of the D.C. Occupational Safety and Health Act, found at D.C. Code § 32-1101 et seq. The court pointed out that the statute does not provide a private right of action. Only the D.C. Occupational Safety and Health Commission may determine whether a violation has occurred and order appropriate relief. Similarly, the latter count is also only enforceable by the Mayor and her delegates. Therefore, the court noted that Grant must seek assistance through the appropriate governmental channels. Grant also invoked § 32-808(a) for the principle that her employer must furnish a safe place of employment. This statute, unlike the earlier two, does provide a private right of action akin to common-law negligence. The cruise lines nonetheless argued that dismissal was proper because Grant alleged she was injured by intentional torts, not by a negligently created unsafe condition. The court felt this to be parsing to complaint of a pro se plaintiff too finely. The actions that the crew took in docking and in handling the lines could be construed as negligent, rather than intentional, so the court permitted this count to proceed. The final cause of action Grant arguably asserts was her Jones Act cause of action. The Court agreed that Grant offered no allegations that she or defendants were covered by the Act or that she fell within the definition of "seaman" and that the ship's operation in the D.C. harbor rendered it subject to federal maritime law. Although the Court dismissed the claim as insufficiently pled, it did so without prejudice. The court granted defendants' motion to dismiss as to all causes of action but Count II. (USDC DDC, October 16, 2017) 2017 U.S. Dist. LEXIS 170209
BANKRUPTCY DOESN’T TRUMP JONES ACT
MCELVEEN V. WATERMAN STEAMSHIP CORPORATION, ET AL.
Jack McElveen worked as a Jones Act seaman aboard a Waterman Steamship Corporation vessel and was instructed to clean out the ship's freezer. McElveen allegedly fell twisting his knee and hitting his back while moving a box out of the freezer. McElveen files a seaman’s suit seeking damages for his injuries, as well as maintenance and cure benefits, and attorney's fees. After several years of litigation, Waterman filed for bankruptcy under Chapter 11 of the U.S. Bankruptcy Code, but eventually emerged from bankruptcy. Waterman removed McElveen’s suit from state court to federal court, pursuant to 28 U.S.C. §§1441(a) and 1452(a), as well as Rule 9027 of the Federal Rules of Bankruptcy Procedure and alleged jurisdiction pursuant to 28 U.S.C. §§157(b), 1331, and 1334(b). Thereafter, Waterman filed a motion to transfer to the U.S. Bankruptcy Court for the Southern District of New York or Alternatively, to refer to the U.S. Bankruptcy Court for the Eastern District of Louisiana. McElveen moved to remand or, alternatively, for abstention. The starting point used by the court was to analyze whether removal of the case was warranted in the first place, noting that a Jones Act claim filed in state court may not be removed to a federal court. On the other hand, Waterman argued that the bankruptcy removal statute, §1452, does not expressly preclude removal of Jones Act claims. Regardless of finding that removal was improper under §1445, the court found that equitable remand was proper under 28 U.S.C. §1452(b). McElveen’s motion to remand was granted. Waterman’s motion to transfer was denied. (USDC EDLA, October 24, 2017) 2017 U.S. Dist. LEXIS 175515
ANOTHER REMOVAL ACTION BITES THE DUST
FILIPOVIC V. SEABOURN CRUISE LINE LIMITED
Ivana Filipovic, a former worker on a Seabourn Cruise Line Limited vessel, moved to remand her case, asserting a Jones Act claim and a seaworthiness claim, to state court. Seabourn, who had removed the original state court action to federal court, filed an opposition. The court initially noted that it was not until long after filing its removal action that Seabourn had finally asserted diversity jurisdiction. But the court noted that Jones Act claims are not removable to federal court even when diversity jurisdiction existed. While an action seeking to enforce an arbitration award is an exception to the general no-removal rule, once the court determined that there was no enforceable arbitration agreement, the exception disappeared. Moreover, although admiralty claims are generally not removable absent diversity, Seabourn did not assert diversity of citizenship as an independent ground for federal subject matter jurisdiction in the case until too late; more than two years after it removed the case. Although the court acknowledged Seabourn’s argument that Filipovic expressed in writing that she did not object to removal of her case, it pointed out that parties cannot stipulate to federal court subject matter jurisdiction or confer it through a "no objection" statement. Therefore, the magistrate recommended that the case be remanded back to state court. (USDC SDFL, October 17, 2017) 2017 U.S. Dist. LEXIS 172470
Quotes of the Month . . ."A positive attitude may not solve all your problems, but it will annoy enough people to make it worth the effort." -- Herm Albright
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