January 2018 HAPPY NEW YEAR!!!!
Notes From Your Updater: A petition for certiorari has been filed with the U.S. Supreme Court in the case of Jordan v. Director, OWCP, et al. [Dyncorp International, LLC] Docket No. 17-843. This is a Defense Base Act case involving claims of discrimination and for additional compensation. The questions presented are, “Whether the U.S. Constitution and the relevant statutes required the court of appeals to review the order by the U.S. Department of Labor's Benefits Review Board dismissing Claimant's appeal after Claimant's unrefuted analysis established that the Board's dismissal and the underlying Administrative Law Judge decision showed essentially complete and willful disregard for the directly-governing statute and regulations, the Administrative Procedure Act, and the Constitution; and Whether the U.S. Constitution and the relevant statutes permitted the court of appeals to dismiss Claimant's appeal by summarily asserting that the court lacked jurisdiction, i.e., without expressly taking any of the actions required by 5 U.S.C. 706 after Claimant's unrefuted analysis established that the Board's dismissal of Claimant's appeal and the underlying Administrative Law Judge decision showed essentially complete and willful disregard for the directly-governing statute and regulations, the Administrative Procedure Act, and the Constitution.”
On January 2, 2018, DOL promulgated a final rule adjusting penalties for 2018. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires the Department of Labor (DOL) to annually adjust its civil money penalty levels for inflation. The rule makes upward adjustments to the penalties assessed by the Office of Workers’ Compensation Programs under the Longshore and Harbor Workers’ Compensation Act [see November 2016 Longshore Update]. Industry Notice 160 outlines the adjustments in detail. The new amounts apply to penalties assessed after January 2, 2018.
APPELLATE COURT AFFIRMS RESPONSIBLE CARRIER AND INJURY DATE FINDING
HORNER V.. CASCADE GENERAL, ET AL.
Gary Horner sustained right knee injuries prior to beginning work for employer as a marine machinist in 1998. On September 18, 2007, Horner fractured his right femur in the hip area during the course of his employment. He underwent surgery for this injury, which entailed insertion of a metal rod to stabilize the bone. Horner returned to work on April 16, 2008, at which time Signal was providing employer’s insurance coverage under the LHWCA. Horner retired from full-time work in August 2008, but he continued working part-time for employer from August 2008 to April 2011. In September 2010, claimant filed a claim under the Act against employer alleging that the residuals from the femur surgery caused increased pain in his right knee during work activities. Horner sought to hold employer liable for recommended knee replacement surgery and benefits for disability caused by the surgery. In response to the claim, employer’s prior insurer moved to join Signal to the proceedings on the ground that Horner’s continued work activities after April 2008 aggravated Horner’s condition such that Signal was the responsible carrier. Following a formal hearing, the ALJ rejected Signal’s contention that Horner’s claim was untimely filed. The ALJ found that Horner established a prima facie case of a cumulative trauma knee injury, which the carriers did not rebut. The ALJ found that Signal was the responsible carrier because Horner’s work after he returned to work in April 2008 aggravated his pre-existing right knee condition. The ALJ found that the subsequent rod removal procedure in January 2012 was not an intervening cause of claimant’s knee condition. The ALJ awarded Horner benefits for his right knee condition, including knee replacement surgery, payable by Signal. On appeal, Horner challenged the ALJ’s finding that he sustained an ongoing cumulative trauma injury to his knee through his last day of work, alleging his ongoing knee injury is due to the 2007 accident in which he broke his femur. Horner contended that employer’s prior insurer, and not Signal, was the responsible carrier and that his average weekly wage should be calculated as of the date of the 2007 injury. Signal cross-appealed, challenging the ALJ’s findings that the September 2010 claim for a work-related knee injury was timely filed and that it was the responsible carrier. The BRB affirmed the ALJ’s decision in all respects, finding that Signal did not produce substantial evidence that Horner was aware or should have been aware of the relationship between his femur injury and his increased knee pain more than one year before September 23, 2010, it did not rebut the Section 20(b) presumption. Thus, Horner’s claim was timely filed. The ALJ did not err in finding that the rod removal procedure related to the knee injury for which Signal was the responsible carrier. Moreover, the rod removal surgery was not an intervening cause of any continued knee condition, as the surgery was undertaken solely as a predicate to total knee replacement surgery. Finally, the Board affirmed the ALJ’s calculation of Horner’s average weekly wage based the wages he earned during the year preceding his last day of work on March 4, 2011. Michelle Horner, as the personal representative of the estate of Gary Horner, petitioned for review of the opinion of the Board affirming the decision of the ALJ, arguing the ALJ failed to properly weigh medical evidence reflecting that Gary's knee condition was aggravated at an earlier date due to his femur fracture. The appellate court found that substantial evidence supported the injury onset date determination made by the ALJ and affirmed by the Board based on aggravation of Gary's knee condition when he returned to his work activities, holding that the ALJ sufficiently weighed the respective medical opinions in determining that the decedent’s increase in knee pain was nine months after the femur fracture but only six weeks after resuming full duty at work and the change that coincided in time with the increased pain was the decedent’s return to full-duty work, not the femur fracture and repair. The petition for review was denied. (9th Cir, December 4, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 24474
APPELLATE COURT AFFIRMS DENIAL OF SECTION 8(F) RELIEF
JONES STEVEDORING COMPANY, ET AL. V. POPOVICH, ET AL.
Steen Popovich was working for Jones Stevedoring Company as a walking boss. As he boarded a ship via a gangway with rope rails, he slipped and, grabbing on to the stanchion to prevent himself from falling, wrenched his right elbow and shoulder. He reported the incident immediately, finished his shift, and went to the doctor the next day. He has not worked since this incident. Employer voluntarily paid Popovich temporary total disability benefits, and then permanent partial disability benefits, and ceasing benefits upon contending Popovich could return to work as of January 17, 2011. Popovich’s elbow injury was diagnosed as a 90 percent rupture of the triceps tendon and his shoulder injury was diagnosed as a labral tear and a partial tear of rotator cuff, with significant degenerative changes noted. The elbow injury fully resolved. Popovich’s treating physician determined that the shoulder injury reached maximum medical improvement on February 7, 2011, and he gave Popovich permanent work restrictions. Following a formal hearing, the ALJ found that Popovich was incapable of returning to his usual work. He gave greater weight to the treating physician’s opinion than to that of employer’s expert, regarding the extent of Popovich’s physical restrictions, which prevent claimant from working at his home port because all walking boss jobs require climbing gangways. Finally, the ALJ found that the evidence submitted by Jones Stevedoring did not establish the availability of suitable alternate employment, and he rejected employer’s assertion that more of the identified jobs would be available to claimant if he obtained an Americans with Disabilities Act (ADA) accommodation. The administrative law judge concluded that, at ports in Oregon, such accommodations were granted infrequently, if at all, such that claimant’s request for one would be futile. As employer did not identify suitable alternate work that was realistically and regularly available to Popovich, the ALJ found that he been permanently totally disabled since February 7, 2011. The ALJ denied Jones Stevedoring’s request for §8(f) relief, holding that the evidence did not establish that preexisting medical conditions which were manifest to employer contributed to claimant’s ultimate permanent total disability. Jones Stevedoring appealed the ALJ’s award of permanent total disability benefits and his denial of §8(f) relief. The BRB affirmed the ALJ’s award of benefits and denial of §8(f) relief in all respects. Jones Stevedoring on a further appeal, did not dispute the disability determination, but argued that the BRB erred when it determined that Jones Stevedoring was not entitled to §8(f) relief. The appellate court, in a brief and unpublished decision, disagreed with the employer and ruled that an employer is not entitled to partial relief from a ruling that it is financial responsible for the permanent total disability of an employee where the employer did not show that the employee's current disability is not due solely to his workplace injury. His other ailments just create a greater disability than would have the workplace injury alone. The appellate court reviewed the record and was satisfied that the decisions of the ALJ and the BRB were supported by substantial evidence, agreeing that Jones Stevedoring did not show that Popovich's current disability was not due solely to the most recent injury. The petition was denied. (9thCir, December 4, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 24477
LHWCA FEE–APPLICATION AND FEE-LITIGATION WORK ARE TREATED THE SAME
VORTEX MARINE CONSTRUCTION, ET AL. V. GRIMM, ET AL.
After Vortex Marine Construction and Signal Mutual Indemnity Association dismissed a petition for review of a decision of the Benefits Review Board, the appellate court granted Terry Grimm’s motion for an award of attorneys’ fees on review and referred the determination of an appropriate amount of fees on review to the BRB, and also referred to the BRB for a report and recommendation on Grimm’s supplemental attorneys’ fees motion, including the issue of entitlement to fees for defending the fee application. In its order, the appellate court agreed with the BRB that Baker Botts L.L.P. v. ASARCO LLC, did not prevent an award of attorney’s fees for the fee litigation under the §928(a) of the LHWCA. The panel noted that under fee-shifting statutes, like §928(a) of the Longshore Act, courts uniformly decline to treat fee–application and fee-litigation work differently. Accordingly, the appellate court upheld the BRB’s order awarding attorneys’ fees and costs for the petition for review in the amount of $32,280; and awarded attorneys’ fees for the fee litigation in the amount of $20,060 in favor of Grimm and against Vortex Marine and Signal Mutual.
WAIVER OF THE CARMACK AMENDMENT SURVIVES APPEAL
SANOFI-AVENTIS U.S., LLC, ET AL. V. GREAT AMERICAN LINES, INC., ET AL.
This case concerned a dispute over liability for the theft of a shipment of pharmaceuticals while it was in transit from the manufacturer, Sanofi-Aventis U.S., LLC, to the distributor, McKesson Corporation. McKesson's insurer, AXA Corporate Solutions Assurance, reimbursed McKesson for the loss and then filed a complaint, as McKesson's subrogee, against the trucking companies involved in the shipping, Great American Lines and M.V.P. Leasing, Inc., as well as the truck stop from which the Freight was stolen, Pilot Transportation Centers. AXA brought a claim for breach of contract and a claim under the Carmack Amendment, which imposes strict liability on motor carriers engaged in the interstate transportation of goods. The district court ultimately determined that the contract governing shipment of the pharmaceuticals waived liability under the Carmack Amendment. The court also determined that McKesson was not a party to the shipping contract, and AXA thus could not base its breach of contract claim on that agreement. Finally, the district court concluded that AXA had not provided sufficient evidence to warrant a jury trial on the question of whether allegedly lax security at the Pilot facility was a cause of the theft of the pharmaceuticals. AXA appealed, arguing that the district court erred in granting summary judgment to Great American and MVP on its Carmack Amendment and breach of contract claims. According to AXA, because McKesson was neither a party to, nor an intended beneficiary of, the Transportation Contract, the Carmack waiver should not apply. AXA also asserted for the first time on appeal, that it should be permitted to pursue its breach of contract claims under the Truck Manifest. With regard to its negligence claim against Pilot, AXA contended that the district court erred in granting summary judgment as genuine disputes of material facts remained. The appellate court found that the district court properly granted summary judgment to the trucking companies on the Carmack Amendment claim brought by the buyer's insurer where the transportation contract between the shipper and the shipper plainly waived the Amendment, and 49 U.S.C.S. § 14101(b)(1) did not require that the consignee, i.e., buyer, agree for in order for the waiver to be effective. The appellate court likewise found that summary judgment was properly granted to the trucking companies on the breach of contract claims where the insurer did not raise an argument concerning a truck manifest before the district court, and even if the argument had been preserved, it would have failed because the transportation contract clearly stated that it solely determined the liability for loss and damage. Finally, the appellate court held that the negligence claim failed for failure to sufficiently establish a causal link between the theft and a truck stop's alleged negligence. The judgment of the district court was affirmed. (3rdCir, December 6, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 24643
SHIP REPAIRMAN FAILS TO PREVAIL ON HIS §905(B) CLAIM
MARABLE V. UNITED STATES OF AMERICA, ET AL.
Phillip Marable, a ship repairman working on the USS Pinckney, a public vessel owned by the United States of America, allegedly sustained injuries after slipping on a ladder on the vessel. Marable was employed by Safway Services, LLC as a scaffolding superintendent on the date of the incident. Marable and his spouse initiated this action by filing a complaint against the United States and BAE Systems San Diego Ship Repair, asserting a negligence cause of action under general maritime law against BAE Systems and a negligence cause of action pursuant to §905(b) of the LHWCA, against the United States. Marable’s spouse asserted a cause of action for loss of consortium against both defendants. The United States filed an answer and cross-claim against BAE Systems for contribution and indemnity, and BAE Systems filed an answer and cross-claim against the United States for contribution and indemnity. The Navy coordinated with BAE Systems to conduct repairs on the vessel who, in turn, subcontracted with scaffolding company Safway. As part of the repairs and maintenance to be performed on the vessel, handrails on a number of ladders on the vessel were to be removed for powder-coating. BAE Systems was responsible for putting a temporary handrail in place or taping off the ladder. On the day of the incident, Marable used the incident ladder to access his work area. There were alternative routes by which Marable could access the work area, however, Marable testified that he observed that the ladder was missing a handrail but felt that he could safely climb the ladder. Marable testified that he did not recall exactly how he fell, but stated that his right foot slipped as he was walking down the stairs. Marable alleged that he injured his left knee in the fall. Marable testified that following his fall, he used the incident ladder again and still felt that the ladder was safe. Marable eventually underwent a total left knee replacement surgery and later underwent a revision surgery of his left knee replacement. Marable testified that during the time he was going through physical therapy after the second knee surgery, he began to suffer pain in his lower back and gait disturbance and underwent two spinal fusion procedures. Marable and his wife testified that although Marable's condition is improving, he remains in pain and the injuries have negatively impacted their previously active lifestyle and their relationship. Marable claimed that the active involvement duty is applicable and that the United States violated its duty of reasonable care under the circumstances by removing the incident ladder's inboard handrails. The United States contended that all aspects of the vessel owner's duty of reasonable care under the circumstances must be viewed in the context of an expert and experienced ship repair person. The United States further asserted that the missing handrail was not a breach of the active control duty regardless of whether the standard of care is viewed in light of a ship repair person or an expert and experienced ship repair person. The court found that the active involvement/control duty was applicable to the case because the United States was responsible for the removal of the inboard handrail on the incident ladder. However, the court also found that the incident ladder with the missing inboard handrail did not create an unreasonably hazardous condition for an expert and experienced ship repair person such as Marable, who had failed to demonstrate by a preponderance of the evidence that the United States breached its duty of reasonable care under the circumstances. Plaintiffs also contended that under general maritime law, BAE Systems owed to Marable a duty of reasonable care under the circumstances, and that BAE Systems breached its duty to put caution tape around the ladder to prevent expert and experienced workers from accessing the ladder. Plaintiffs also contended that BAE Systems failed to uphold its duty to correct the hazardous condition of the incident ladder after identifying that it was missing a handrail. The court found that BAE Systems did not owe Marable a contractual duty to identify and remedy the condition of the incident ladder with the missing inboard handrail under NAVSEA Standard 009-07. The court concluded that BAE Systems owed to Marable the ordinary negligence duty of reasonable care under the circumstances. On the day of the incident, the inboard handrail on the incident ladder had been removed. The outboard handrail on the incident ladder remained in place. Marable testified that he recognized that the incident ladder was missing one of its two handrails prior to using it and felt that it was safe. Therefore, the court concluded that the incident ladder with an outboard handrail in place did not constitute an unreasonably dangerous condition to an experienced ship repair person. In light of Petersand the section 905(b) cases limiting liability for open and obvious conditions, the court concluded that BAE did not have a duty to warn or remedy due to the open and obvious nature of the missing inboard handrail on the incident ladder. The court held that plaintiffs did not prove by a preponderance of the evidence that the missing inboard handrail on the incident ladder created an unreasonably dangerous condition to an experienced ship repair person and found that plaintiffs had not demonstrated by a preponderance of the evidence that BAE Systems breached its duty of reasonable care under the circumstances. Because the Court concluded that the United States and BAE Systems were not liable to plaintiffs for any act of negligence in relation to injuries sustained by Marable, the spouse’s cause of action for loss of consortium was dismissed. Judgment was entered in favor of the United States and BAE Systems. The court dismissed the defendants’ cross-claims as moot. (USDC SDCA, December 21, 2017) 2017 U.S. Dist. LEXIS 210383
COURT FINDS PLAINTIFF TO BE A LONGSHOREMAN, NOT A SEAMAN
COSTANZA, ET AL. V. ACCUTRANS, INC.
Calvin Costanza worked as a tankerman for Accutrans, Inc. from April 2012 until January 2016. His duties included 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 provided stevedoring services to various companies. When Accutrans assigned Costanza to a particular barge, he was in charge and given total control over it. For the most part, these barges were special purpose vessels designed to transport hazardous cargo, and Costanza alleged that he was regularly being exposed to toxic substances. In January 2015, Costanza was diagnosed with cancer, which he alleged was a direct result of his exposure to toxic and carcinogenic substances while in the course and scope of his employment. Costanza filed suit in state court, pursuant to the Jones Act, alleging Costanza was employed as a seaman within the meaning of the Jones Act and the general maritime law. Accutrans removed the action to this federal court, contending Costanza may not seek relief under the Jones Act, as Costanza's seaman status was fraudulently pleaded. Costanza moved to remand the case to state court, which the court denied, finding that there was no possibility that Costanza would be able to establish a cause of action' under the Jones Act. Accutrans then moved for summary judgment, contending the LHWCA, the exclusive remedy in the case, barred Costanza’s Jones Act claims. Having previously determined Costanza was not a Jones Act seaman when he incurred his injuries, the court found that his claims were exclusively governed by the LHWCA. Thus, because Costanza is a longshoreman, not a Jones Act seaman, and because he filed his claims against Accutrans pursuant only to the Jones Act, Accutrans was entitled to summary judgment on these claims. Accutrans' motion for summary judgment was granted. (USDC EDLA, December 5, 2017) 2017 U.S. Dist. LEXIS 199716
DELETING FEDERAL CLAIMS MAY NOT DESTROY FEDERAL JURISDICTION
PITRE, ET AL. V. HUNTINGTON INGALLS, INC., ET AL.
This is a case involving alleged asbestos exposure at Avondale Shipyard. Stewart Pitre worked as a pipefitter for Avondale Shipyard from 1963 to 1972 and later developed lung cancer, allegedly as a result of his exposure to asbestos at Avondale Shipyard, eventually resulting in his death. Pitre's wife and children filed an action in state court for wrongful death and survival, naming numerous defendants, including Huntington Ingalls, Inc. and Foster Wheeler, LLC. The original petition included, among other causes of action, failure to warn and other negligence claims against Avondale, and strict products liability and failure to warn claims against Foster Wheeler. Foster Wheeler allegedly produced boilers with asbestos-containing insulation that Pitre came into contact with aboard vessels at Avondale. Plaintiffs filed a first amended petition added Occidental Chemical Corporation as a defendant, and asserted strict liability claims against both Avondale and Occidental Chemical. Avondale and its insurer removed the case to federal court, arguing that they were entitled to remove this matter under 28 U.S.C. §1442(a)(1) because plaintiffs' claims are for or related to acts performed under color of federal office while Avondale was acting under the authority of an officer of the United States. Plaintiffs requested leave to file an amended complaint to delete their strict liability claims against Avondale, which the magistrate judge granted. Avondale appealed and plaintiffs opposed the appeal, and moved to remand the case to state court. After reviewing the magistrate’s recommendation, the court observed that the magistrate judge could reasonably have concluded that plaintiffs' amendment sought to correct a good faith error, and was not made in bad faith. Plaintiffs were dropping substantive claims against Avondale that they might otherwise have pursued, and were not engaging in merely superficial manipulation of the pleadings to defeat federal jurisdiction. Avondale argued that plaintiffs' amendment was futile because it could not destroy federal jurisdiction. The court noted that the fact that the amended complaint did not automatically Accordingly, the court found no error in the order granting plaintiffs leave to amend their complaint, denying Avondale’s appeal. Plaintiffs argued that, in light of the amended complaint, the court lacked subject matter jurisdiction and this case must be remanded to state court. The court noted that, while an amended complaint deleting federal claims may permit a discretionary remand, it did not destroy federal jurisdiction over a validly removed case. Instead, the court found that remand was not justified. Avondale's notice of removal was valid, and the court properly acquired jurisdiction over the matter. Further, Foster Wheeler was not affected by plaintiffs' amended complaint, and remained entitled to a federal forum under the federal officer removal statute. Therefore, the court denied the motion to review the magistrate judge's order granting plaintiffs leave to amend. Further, the court denied plaintiffs' motion to remand. (USDC EDLA, December 6, 2017) 2017 U.S. Dist. LEXIS 200355
BRB HOLDS AUDIOLOGIST IS NOT A “PHYSICIAN”
JONES V. HUNTINGTON INGALLS, INCORPORATED
Clarence Jones, Jr. worked as a sheet metal mechanic for Huntington Ingalls, and allegedly worked in a noisy environment. During his employment, he underwent audiometric testing which revealed zero percent hearing loss. Jones sustained a work-related knee injury in 2009, and he has not worked since In 2014, Jones underwent an audiological evaluation that demonstrated a 17.2 percent noise-induced binaural sensorineural hearing loss and was told he needed hearing aids. Huntington Ingalls sent Jones for a second opinion evaluation, which revealed a binaural impairment of zero percent. Although the audiologist agreed Jones was a candidate for amplification, he stated that any change in Jones’ hearing since he left the shipyard was probably not noise-related. The parties agreed to a number of stipulations, which the ALJ summarized, accepted, and incorporated into his decision. On the issue of causation, the ALJ found that the parties did not dispute that Jones suffers from a sensorineural hearing loss and that he was exposed to work place noise. Nevertheless, he stated, the burden was on Jones to prove on the basis of the record as a whole that his hearing loss was caused or aggravated by his work for employer, and to what extent he has suffered a hearing loss. Weighing the evidence of record as a whole, the ALJ found that Jones’ hearing loss was not noise-induced and that he did not have a ratable hearing impairment. Therefore, he concluded that Jones was not entitled to disability or medical benefits for his hearing loss. The ALJ denied Jones’ motion for reconsideration. Jones appealed the decisions, contending the ALJ erred in denying disability and medical benefits. With regard to disability benefits, claimant asserts his hearing loss is work-related because employer did not rebut the §20(a) presumption that his hearing loss was related to the medication (aspirin) he took for his work-related knee injury, and he submitted credible evidence of a 17.2 percent hearing loss. With regard to medical benefits, claimant asserted his entitlement to hearing aids is established by the parties’ stipulations. Jones also contended the ALJ should have made a finding as to which audiologist is to dispense the hearing aids. The BRB agreed with Jones that the ALJ erred in denying medical benefits. The administrative law judge accepted the parties’ stipulations which established that employer accepted liability for medical benefits and authorized claimant to get hearing aids. In denying medical benefits, the administrative law judge gave no notice or explanation as to why he later “rejected” the stipulations. As to whether Jones was permitted his choice of audiologist, Huntington Ingalls asserted that audiologists, like pharmacists, are not “physicians” within the meaning of the Act and claimant is not entitled to his choice thereof as a matter of law. The Board rejected Jones’ contentions, as he had not raised an issue to be addressed by the ALJ, and he had not shown that he was entitled, by statute or regulation, to choose an audiologist. As with pharmacists, claimants do not have a statutory or regulatory right to choose their own audiologists. Jones contended the ALJ erred in denying disability benefits for his hearing loss. The administrative law judge noted that both audiologists stated that the audiogram most reflective of any permanent impairment is the one that demonstrates the lowest loss. The administrative law judge also found the two 2014 audiograms wholly credible and equally probative of the degree of Jones’ hearing loss. The ALJ found, under these circumstances, that Jones did not meet his burden of establishing that he has a hearing impairment and he denied benefits. The BRB affirmed this finding, noting it is well established that an ALJ is entitled to determine the weight to be accorded to the evidence of record. Thus, substantial evidence supported finding the two 2014 audiograms both credible and equally probative, and the ALJ did not err in so finding. Accordingly, the ALJ’s denial of medical benefits was reversed. The case is remanded to the district director for supervision of claimant’s medical care. In all other respects, the Decision and Order and the Order Denying Motion for Reconsideration were affirmed. (USDOL BRB, October 10, 2017) 51 BRBS 29
Updater Note: As many of my long-suffering readers know, I rarely review BRB decisions. However, I found this one interesting in that the Board held that an audiologist is not a physician; but more so because the Board accepted the opinion of the two audiologists that the audiogram most reflective of any permanent impairment is the one that demonstrates the lowest loss. Thanks to Doug Matthews and Nash Bilisoly for sharing this interesting case with me.
IRS INCREASES MILEAGE REIMBURSEMENT RATE EFFECTIVE 1/1/18
On December 14, 2017, the Internal Revenue Service released the optional standard mileage rates to use for 2018 in computing the deductible costs of operating an automobile for business, charitable, medical or moving expense purposes. Beginning January 1, 2018, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:
•54.5 cents per mile for business miles driven
•18 cents per mile driven for medical or moving purposes
•14 cents per mile driven in service of charitable organizations
The standard mileage rates for business, medical and moving purposes are based on an annual study of the fixed and variable costs of operating an automobile. The business mileage rate and the medical and moving expense rates each increased 1 cent per mile from the rates for 2017. The charitable rate is set by statute and remains unchanged.
Updater Note: You can check out the revised IRS mileage rates here. The Office of Government-wide Policy, GSA also sets mileage reimbursement rate for use of a privately owned automobile (POA) on official travel. GSA has not yet published their 2018 rates. You may review the latest GSA bulletin here. However, by law, GSA may not exceed the standard mileage reimbursement rate for a privately owned automobile (POA) established by the Internal Revenue Service (IRS).Which rate should you be using to reimburse travel under the Longshore Act? That is a question you may want to consult with your attorney on.
And on the Admiralty front . . .
EN BANC THIRD CIRCUIT THROWS OUT BARNES MAINTENANCE & CURE HOLDING
JOYCE V. MAERSK LINE LTD.
In this important en banc opinion, the Third Circuit Court of Appeals stopped swimming against the tide of opinions on an important question of maritime law. Following the lead of several of its sister circuits, the appellate court held that a union contract freely entered by a seafarer (a contract that includes rates of maintenance, cure, and unearned wages) will not be reviewed piecemeal by courts unless there is evidence of unfairness in the collective bargaining process. In so holding, the court overruled its decision in Barnes v. Andover Co., L.P.James Joyce was a member of the Seafarers International Union. He signed "Articles of Agreement" with Maersk Line Limited and agreed to serve as a bosun aboard Maersk’s vessel. The collective bargaining agreement was incorporated by reference into the Articles of Agreement between Joyce and Maersk. During his initial voyage, Joyce fell ill. He was examined onboard and diagnosed with kidney stones. That diagnosis was later confirmed at a hospital in Spain, and he was declared unfit for duty and repatriated to the United States. The collective bargaining agreement provided that, if a seafarer was medically discharged prior to the conclusion of his contract, he was entitled to unearned wages for the remaining period of the contract. Overtime was not included in the definition of unearned wages. Joyce accordingly received only base pay as unearned wages for the time left on his contract after he was medically discharged. Dissatisfied, Joyce filed a putative class action, alleging that the portions of the collective bargaining agreement governing unearned wages violated general maritime law. More particularly, he claimed that he was owed overtime pay. The district court disagreed and granted summary judgment to Maersk on the ground that, as a matter of law, given the collective bargaining agreement, Joyce was not entitled to overtime. Joyce appealed asking the appellate court to overturn the district court's ruling on unearned wages, arguing that, because seafarers were entitled at common law to both maintenance and unearned wages, the appellate court’s prior holding in Barnesshould extend to unearned wages set by a collective bargaining agreement, making the union contract subject to change by court order to conform with traditional maritime law. After thoroughly analyzing its original reasoning in Barnes, the appellate court decided that it agreed with other circuits that the "broad labor policies which undergird federal labor law, as well as the nature of the collective bargaining process, require adherence" to the terms of a collective bargaining agreement, including rates established for maintenance and unearned wages. For that conclusion, the appellate court did not rely on the doctrine of preemption; rather, it recognized, like its sister circuits, that "the need for judicial intervention to protect seamen has been substantially lessened, and thus the common law basis for requiring courts to disregard the freely negotiated agreements of private parties and to refuse to enforce the terms of the collective bargaining agreement also carried substantially less force. The scope of the appellate court’s decision made the holding in Barnes untenable, so that unearned wages and maintenance are alike subject to modification by union contracts. The appellate court also adopted a backstop protection for seafarers, as prescribed by its sister circuits. Consistent with principles of contract law, a seafarer with a basis to allege that an entire collective bargaining agreement is, or the process whereby it was entered into was, "unfair or inadequate" may bring that complaint to court. The appellate court also pointed out a significant further limitation in its ruling, noting that maintenance, cure, and unearned wages are so deeply rooted in common law that, absent congressional action, they cannot be completely abrogated by contract. The court noted that it was a rare case in which it overruled its own precedent. Having reconsidered its prior reasoning, however, the appellate court overruled Barnes v. Andover and enforced the rate of unearned wages set forth in the collective bargaining agreement between Joyce and Maersk, affirming the lower court’s judgment. (3rd Cir., December 4, 2017) 2017 U.S. App. LEXIS 24433
NON-SIGNATORY TO THE AGREEMENT CAN’T COMPEL ARBITRATION
YANG V. MAJESTIC BLUE FISHERIES, ET AL.
Chang Cheol Yang was a seaman who died when the fishing vessel he worked on sank, allegedly because of inadequate repairs and an incompetent crew provided by Dongwon Industries Co. Ltd. His widow commenced a wrongful death action against Dongwon on behalf of his three minor children, herself, and his estate. Dongwon moved to compel arbitration based on an employment agreement between the decedent and the vessel's owner, Majestic Blue Fisheries, LLC. Because Dongwon is neither a signatory nor a party to the employment agreement, the district court denied Dongwon's motion. Dongwon appealed the judgment denying its motion to compel arbitration. The appellate panel affirmed the district court's order denying a motion to compel arbitration. Dongwon sought arbitration based on an employment agreement between the decedent and the vessel's owner. Pursuant to a contract with the owner, the defendant supplied the vessel's crew and supervised its repairs and maintenance. The appellate court held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, an act implementing a treaty of the same name, does not allow non-signatories or non-parties to compel arbitration. Agreeing with other circuits, the panel held that, like an arbitration agreement, an arbitral clause in a contract must be "signed by the parties" in order to be enforceable under Article II(2) of the Convention Treaty. The appellate court further held that Dongwon could not compel arbitration under the Federal Arbitration Act, which expressly exempts from its scope any "contracts of employment of seamen." The appellate court declined to import into the court's Convention Act analysis precedent permitting a litigant who is not a party to an arbitration agreement to invoke arbitration under the FAA if the relevant state contract law allows the litigant to enforce the agreement. The judgment of the district court was affirmed. (9th Cir, November 30, 2017) 2017 U.S. App. LEXIS 24308
APPELLATE COURT AFFIRMS LIABILITY ON THE PART OF YACHT BUILDER
PARKER, ET AL. V. ALEXANDER MARINE CO., LTD., ET AL.
Alexander Marine Co. custom built a 98-foot yacht, for David Parker. After Alexander Marine declined to pay for repairs to the yacht allegedly necessitated by manufacturing defects, Parker and Big Bird Holdings brought suit for breach of express and implied warranties. Alexander Marine appealed the judgment entered against it following a jury verdict, arguing that Parker and Big Bird both lacked statutory standing to sue under California's Song-Beverly Consumer Warranty Act. The appellate court noted that Alexander Marine did not raise this argument as to Parker until its renewed motion for judgment as a matter of law, and it never raised it as to Big Bird in the district court. The district court therefore did not abuse its discretion in finding these arguments waived. The appellate court also found that the district court did not abuse its discretion in finding that Alexander Marine waived its argument that the express warranty was void as a matter of law based on the work done before Alexander Marine was notified of the claim. This argument also was first raised in Alexander Marine's renewed motion for judgment as a matter of law. Alexander Marine challenged the civil penalty award on the ground that the evidence was insufficient to show it acted willfully. The appellate court found there was ample evidence on which the jury could have made its willfulness finding. The appellate court also rejected Alexander Marine's argument that, because the jury only found it liable for breach of express warranty under the California Commercial Code and not under Song-Beverly, the Song-Beverly civil penalty was not available as a matter of law. The record showed that the jury heard expert testimony that the entire hull needed to be repaired solely based on the manufacturing defects (and despite any exterior collision damage). The jury also heard that the extended keel was not built to design, and was replaced with a new keel that was a structural element of the yacht as originally intended (not repaired based on the alleged collision damage). The warranty expressly covered structural defects, and excluded collision damage. Because the jury found liability, and awarded damages, on the basis of that warranty, the jury necessarily found that all of the repair costs were necessitated by structural defects. The appellate court affirmed the jury’s verdict of liability on the part of Alexander Marine. (9th Cir, December 6, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 24673
THIRD CIRCUIT ALLOWS ASBESTOS LITIGATION TO CONTINUE
IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI)
This case has its genesis in the late 1980s when George Perdreauville and Joseph Blue filed lawsuits under the Jones Act and general maritime law, alleging injury from exposure to asbestos while onboard various ships. A lengthy and complex procedural course ensued, and, in 1991, the suits were consolidated in the Asbestos Multidistrict Litigation ("MDL") in the United States District Court for the Eastern District of Pennsylvania. In 2014, that Court dismissed the cases due to lack of personal jurisdiction. Perdreauville and Blue subsequently filed this timely joint appeal, arguing that the appellees had waived their personal jurisdiction defenses. Noting that it had addressed precisely the same issue in a 2016 decision involving three different MDL plaintiffs, in Braun, the appellate court agreed with the argument now put forth by the appellants and reversed the district court on grounds that the Braun appellees had waived their personal jurisdiction defenses. Upon review of Braunand its application to the facts at issue, the appellate court reversed the district court dismissal of actions against various owners and operators of Jones Act vessels, finding that defendants had waived their personal jurisdiction defenses. (3rd Cir, December 28, 2017) 2017 U.S. App. LEXIS 26849
APPELLATE COURT UPHOLDS DISTRICT COURT’S MCCORPEN RULING
ROUSSE V. UNITED TUGS, INC.
Jordy Rousse allegedly injured his back in a work-related accident while performing his duties as a deckhand aboard a vessel owned by his employer, United Tugs, Inc. Rousse filed a petition for damages against United, alleging claims arising under the Jones Act, general maritime law, and the saving to suitors clause. United paid Rousse maintenance and cure following his accident, during which time Rousse underwent two lumbar spine surgeries. United filed a motion for partial summary judgment raising a McCorpen defense, arguing that Rousse was precluded from receiving maintenance and cure because he concealed from his employer a preexisting medical condition, by failing to disclose prior back injuries and medical treatment for prior back complaints. The district court granted partial summary judgment and dismissed Rousse's claims against United for maintenance and cure. This appeal followed, in which Rousse set forth a single assignment of error on appeal, contending that the district court erred in granting partial summary judgment. The appellate court proceeded to convert the appeal to an application for supervisory writ, granted the writ application, and denied relief. Turning to Rousse’s argument that the district court erred in granting summary judgment, wherein he disputed that any of the elements of the McCorpendefense were satisfied, the appellate court found that all three elements of the McCorpen defense had been fully satisfied. The appellate court found that Rousse had not introduced evidence of any physician's opinion that his prior and current back conditions were unrelated. Rather, Rousse simply offered his interpretation of his medical records to argue that his old and new injuries were not similar. The appellate court concluded that the district court properly granted partial summary judgment in favor of United, dismissing Rousse's claims for maintenance and cure. The judgment of the district court was affirmed. (La. 4th Cir App., December 20, 2017) 2017 La. App. LEXIS 2393
COURT REFUSES TO ALLOW POSTURED CLAIM FOR PUNITIVE DAMAGES
WILTZ V. M I LLC, ET AL.
Gerald Wiltz's allegedly sustained personal injuries after he was exposed to hydrogen sulfide aboard a drill ship. Wiltz filed his seaman's complaint for damages asserting claims under the Jones Act and general maritime law against M-I LLC, as his Jones Act Employer, Rowan Companies, Inc., as owner of the drill ship, Cobalt International Energy, L.P., as the leaseholder and operator, and Halliburton Energy Services, Inc., as a non-employer tortfeasor. In his complaint, Wiltz averred that, should M-I fail to honor its maintenance and cure obligation, he would be entitled to attorney's fees, punitive damages, and an additional compensatory award. Wiltz also specifically alleged a claim for punitive damages against the defendants based upon general maritime law. This claim relates not only to any arbitrary and/or unreasonable failure of defendant to pay maintenance and cure benefits but also for any gross negligence of the defendants, or unseaworthiness of the vessel as may be allowed under general maritime law. M-I moved for dismissal of Wiltz's punitive damages claims against it as his Jones Act employer, arguing that Wiltz, as a Jones Act seaman, could not recover punitive damages under either the Jones Act or general maritime law; and Wiltz had failed to adequately state a claim that M-I willfully and wantonly failed to pay him maintenance and cure. In response, Wiltz argued that while M-I is currently paying him maintenance and cure, there is no guarantee that such payments will continue or that disputes will not arise concerning maintenance and cure throughout the pendency of the case. Thus, Wiltz postured that such claim for punitive damages for the failure to pay maintenance and cure was proper, and M-I's motion should be denied. In the alternative, Wiltz requested that, if the court agreed with M-I's argument that punitive damages were not available under the instant circumstances, then such claim for punitive damages relevant to maintenance and cure be dismissed without prejudice. The court pointed out that Wiltz did not allege that M-I had failed to pay maintenance and cure. Rather, Wiltz sought to reserve his claim for punitive damages should M-I fail to honor its obligation to pay him maintenance and cure at some point in the future. However, the court did not find it appropriate to allow Wiltz to maintain a claim for punitive damages premised on the possibility that M-I may breach its obligation to pay maintenance and cure at some unknown time in the future. Thus, Wiltz's claim for punitive damages against M-I, should it fail to pay him maintenance and cure in the future, was dismissed. However, the court noted that M-I must continue to pay maintenance and cure benefits until maximum medical cure is achieved or Wiltz could seek appropriate relief from the Court. Wiltz’s claim for punitive damages against M-I was dismissed without prejudice. (USDC EDLA, December 27, 2017) 2017 U.S. Dist. LEXIS 212308
COURT DISMISSES PUNITIVE DAMAGE CLAIMS AGAINST INSURERS
ROBERTS V. INLAND SALVAGE, INC.
Kenneth Roberts contended that he experienced an accident resulting in alleged injuries while employed by Inland Salvage, Inc. Roberts eventually filed a seaman's complaint for damages against Inland Salvage. However, Inland Salvage filed for Chapter 11 bankruptcy prior to Roberts filing his complaint. Roberts was then precluded from maintaining an action against Inland Salvage due to the automatic stay on actions against Inland Salvage during bankruptcy proceedings. Thereafter, Roberts filed a First Supplemental and Amended Complaint, directly naming the following entities as defendants: American Equity Underwriters, Inc., Hiscox Dedicated Corporate Member Limited, Catlin Syndicate Limited, Castlepoint National Insurance Company, and Underwriters at Lloyd's, London Chubb Syndicate 1882, in accordance with Louisiana's Direct Action Statute, which allowed him to maintain his action directly against the insurers. Roberts dismissed Inland Salvage from his suit, leaving only the insurer-defendants. The insurer defendants then moved for partial summary judgment on Roberts’ punitive damages cause of action, on the grounds that neither of defendants' insurance agreements with Inland Salvage provided coverage for punitive damages. The motion before the court did not reach the general legal issue asking whether punitive damages can be recovered against an insurance company. Rather, the issue before the court was whether the language in defendants' specific insurance policies provided for the coverage of punitive damages. The court agreed with defendants' argument that the interpretation of the insurance policies is a question of law and therefore appropriate for summary judgment. Roberts contended that defendants' policies did not preclude the recovery of punitive damages for Inland Salvage's failure to pay maintenance and cure. Roberts also argued that defendants themselves were directly liable for punitive damages due to their own failure to pay maintenance and cure. The court agreed with defendants in finding that the policy language did not transfer any obligation of Inland Salvage to pay maintenance and cure. Rather, the obligation to provide maintenance and cure remained with Inland Salvage. Rather, defendants were obligated to pay the sums due by Inland Salvage to Roberts in relation to maintenance and cure benefits-excluding punitive damages. Such was clear from the language of the policies. The court concluded that defendants had mounted a successful bid to dismiss Roberts’ punitive damages claims and granted the motion and dismissed Roberts’ claims for punitive damages. (USDC EDLA, December 19, 2017) 2017 U.S. Dist. LEXIS 209765
SEAMAN FOUND 50% RESPONSIBLE FOR HIS OWN INJURIES
THIBODEAUX V. ENSCO OFFSHORE CO.
Joseph C. Thibodeaux filed a seaman’s complaint against Ensco Offshore Company, under the Jones Act and general maritime law, seeking damages for injuries he allegedly sustained while serving as a deck foreman aboard an Ensco drill rig. Thibodeaux asserted negligence and unseaworthiness claims under the Jones Act and a claim for maintenance and cure under general maritime law and designated his claims as admiralty pursuant to FRCPm9(h). Following the bench trial, the court took the matter under advisement and the parties were ordered to file post-trial briefs. Thibodeaux sustained his alleged injuries when a safety cable attached to a navigational light failed to hold the entire light assembly. In falling, it struck Thibodeaux on his left hip and left knee. Thibodeaux sustained a significant hematoma, known as a Morel-Lavallee lesion, to his hip. Pre-employment and post-injury MRIs revealed no change to Thibodeaux's back, but he complained of pain in his neck, left hip, knee and back. Thibodeaux argued Ensco was negligent because it breached its duty to provide a safe working environment and/or practices and procedures. The court found that Thibodeaux's injuries suggested that he turned his back to the operation when the incident occurred. Unable to see the light shield assembly, he was unaware it had been hit and was falling. His fellow crew members yelled out for him to run, but he was barely able to move before it fell from the jack house on his left and struck him on his left hip and knee. Thibodeaux had the duty and opportunity to issue an all stop order, but he did not. As a result, he was injured, in substantial part by his own negligence, which the court calculated at 50%. The court noted that the drill rig was operational for thirty years before this accident and during the entirety of its use, the navigational light remained tack welded to the rig. At no time did the navigational light fail to perform the duty for which it was intended. It illuminated the vessel when it was moved from place to place, apparently without incident. Thus, the court concluded that Thibodeaux had not established the navigational light was unseaworthy. The safety cable attached to the navigational light was not reasonably fit for its intended use. The intended use for the cable was to prevent the navigational light from falling to floor of the rig and hitting someone, and in this case, it failed to work as intended. However, the court refused to find the drill rig was unseaworthy as a result of the safety cables lack of fitness for intended use. Instead the court found that the combined negligence of Ensco and Thibodeaux caused his injuries, and the safety cable's failure did not play a substantial part in same. Record evidence supported the court's finding that Ensco paid maintenance and cure in a timely manner through the trial. After due consideration of the facts and evidence presented by the parties at the trial, and having had the opportunity to assess the demeanor of the live witnesses and review and weigh the evidence, the court rendered judgment in favor of Thibodeaux and against Ensco in the amount of $331,928.62 which reflects a total damages of $663,857.23 subject to Thibodeaux's own comparative fault assessed at 50%. (USDC WDLA, December 28, 2017) 2017 U.S. Dist. LEXIS 212924
COURT DENIES SEAMAN STATUS TO BARGE CLEANER
YOUNG V. T. T. BARGE SERVICES MILE 237, LLC
Marcus Young was employed by T.T. Barge Services Mile 237, LLC as a barge cleaner. He stored equipment and performed other work on the work barges, but lived on land and commuted to work every day by car. TT’s work barges are connected to shore through a permanently installed walkway, steel cables, electric lines, hoses, vapor lines, and steam lines. Young claimed that he fell into an open hatch on one of TT’s work barges and allegedly suffered injuries. Young proceeded to file a seaman's complaint for damages and then moved partial summary judgment, asking the court to find that he is a seaman entitled to bring a negligence claim under the Jones Act and claims for unseaworthiness and maintenance and cure under general maritime law. TT filed a cross-motion for summary judgment asserting that Young is not a seaman. Young offered two rationales for his claim to seaman status. First, he argued that he has a substantial connection to TT’s work barges, which he asserted were vessels in navigation. Second, Young contended that he has a substantial connection to an identifiable fleet of vessels owned by one of TT’s customers, Kirby Inland. The court found that both arguments ran contrary to governing law, and thus found no genuine issue of fact to support Young’s claim to seaman status. The court pointed out that a reasonable observer would not consider TT’s work barges to be practically designed for carrying people or things over water. The undisputed facts indicate that the work barges are secured to shore by, among other things, a permanent walkway, steel cables, and electricity lines. The barges have no independent means of generating electricity and must be moved by tugboat because they have no means of self-propulsion. The undisputed facts demonstrated that TT’s work barges had been withdrawn from navigation, and constituted a stationary work platform rather than a vessel. Accordingly, the court found that TT’s work barges were not vessels in navigation and Young could not rely on his relationship with these work barges to claim status as a seaman. In the alternative, Young argued that he is a seaman because he had a substantial connection to an identifiable fleet of vessels owned by Kirby Inland. The court found that the undisputed facts showed that Young was a transitory maritime worker, only doing work on those vessels when required, as opposed to a member of a crew assigned to that fleet of vessels. Because the court found that Young lacked a substantial connection to a vessel or an identifiable fleet of vessels, it need not determine whether Young’s work contributed to the function of the barges. The court held that Young was not a seaman, and TT was entitled to summary judgment. Because Young’s claims for negligence, unseaworthiness, and maintenance and cure were premised on his status as a seaman, his complaint was dismissed. TT’s motion for summary judgment was granted. Young’s motion for partial summary judgment was denied. (USDC EDLA, December 5, 2017) 2017 U.S. Dist. LEXIS 199714
COURT GRANTS MOTION IN LIMINE ON PLAINTIFF’S EXPERT
LEE V. OFFSHORE LOGISTICAL & TRANSPORT, LLC
Elwood Lee filed a complaint pursuant to the Jones Act and general maritime law, alleging that while aboard Offshore Logistical & Transport, LLC’s vessel, he allegedly sustained injuries to his knee and other parts of his body. It was undisputed that Lee, as the senior captain aboard the vessel, was involved in getting the boat organized and performing generalized maintenance. It was also undisputed Lee was unaware of a defect that gave him concern about the ability to walk in the area of the alleged injury. Finally, both parties agreed there was no non-skid material on the deck of the vessel at the time of Lee's alleged injury. The parties, however, disputed whether Offshore's failure to apply non-skid paint constituted negligence or rendered the vessel unseaworthy and whether the lack of non-skid paint contributed to Lee's injuries. Lee contended Offshore had the duty to ensure there was a non-skid application on the deck, but Offshore asserted that Lee, as the vessel's captain, bore this duty. To support his position, Lee sought the expert opinion of Captain J.P. "Patrick" Jamison on these issues. Offshore moved in limine to exclude or limit Captain Jamison's testimony at trial, arguing Captain Jamison was not qualified to address the liability issues on negligence or the seaworthiness of the offshore supply vessel involved in this suit, and his opinion was not admissible under the Daubertstandards. Lee opposed the motion. After hearing the arguments of both parties, the court found Captain Jamison was not qualified by education or experience to testify whether Offshore was negligent or whether the vessel was unseaworthy. Although Captain Jamison had been offered as an expert on offshore vessels in the past, he had never been accepted as an expert regarding offshore supply vessels. Notably, each of the cases in which Captain Jamison was offered as an offshore expert settled before trial, without a challenge to Captain Jamison's credentials and without a ruling on his qualifications. Captain Jamison's training and experience was limited to rivers and inland waterways and did not include bodies of water on which an offshore vessel primarily operates. He had not worked on an offshore supply vessel or received training related to offshore supply vessels. He did not consider, and admitted he was not aware of, the regulations regarding the design, construction, and operation of offshore vessels, including their decks. Thus, the court found Captain Jamison was not qualified by his training or experience to address liability issues on negligence or the seaworthiness of the vessel. Even assuming Captain Jamison was qualified to render an expert opinion on the seaworthiness of the vessel or Offshore's alleged negligence, the opinions rendered in items one and two of his expert report intrude on the domain of common sense matters upon which jurors require no expert assistance. Offshore’s motion in limine was granted. (USDC EDLA, December 19, 2017) 2017 U.S. Dist. LEXIS 208187
In another ruling in this same case, the court entertained Offshore’s motion for partial summary judgment on the issues of Jones Act negligence and unseaworthiness. The court observed that Lee alleged he was walking the deck, which undisputedly did not have non-skid paint applied to it, causing him to slip. Based on this testimony and the undisputed facts, a reasonable jury could infer that the lack of non-skid paint caused Lee to slip and injure his knee. This determination ultimately is for the trier of fact. With respect to Lee’s unseaworthiness claim, that the vessel’s deck did not have non-skid paint applied to it is undisputed. The parties dispute, however, whether this lack of non-skid paint was unreasonable in light of the vessels' intended purpose. Courts have found that the absence of non-skid tape or some other appropriate skid resistant surface may render a vessel unseaworthy. This inquiry is fact intensive and required the jury to balance many factors. Offshore’s motion for partial summary judgment on the issues of liability for Jones Act negligence and unseaworthiness under general maritime was denied. (USDC EDLA, December 20, 2017) 2017 U.S. Dist. LEXIS 210041
ARBITRATION ALSO APPLIES TO CLAIMS RELATED TO ALLEGED RAPE
HAASBROEK V. PRINCESS CRUISE LINES, LTD., ET AL.
Michelle Haasbroek, a South African citizen, was a spa facialist employed by Steiner Transocean Limited, Steiner Leisure Limited, and/or Steiner Transocean U.S., Inc. (collectively, Steiner), who had executed an agreement with Steiner agreeing to arbitration. While Haasbroek was employed as a spa facialist aboard a Princess Cruise Lines vessel, she was allegedly raped by a Princess employee, also working aboard the vessel. ,As a result of the rape, Haasbroek became pregnant and gave birth to a child. Haasbroek filed suit in state court, lodging eight claims against Princess, Steiner, and the alleged rapist. Steiner timely removed the action to federal court on the grounds that the matter was subject to arbitration pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Subsequently, Princess and Steiner moved to dismiss and compel arbitration in the Bahamas pursuant to the arbitration agreement that Haasbroek had executed. Haasbroek opposed the arbitration motion, primarily on the ground that the arbitration agreement did not cover the subject matter of her action. Haasbroek argued that, because the arbitration agreement was inapplicable, the defendants had no other grounds for removal and the matter should be remanded. In the alternative, Haasbroek argued that even if the arbitration agreement covered claims against Steiner, claims against Princess were not subject to arbitration and should be remanded because Princess was not a party to the agreement, and thus it may not compel arbitration. The Court disagreed that Haasbroek’s claims arising out of rape, sexual assault and sexual harassment were beyond the scope of the arbitration agreement, noting that independent torts, including those involving rape, did not necessarily fall outside the scope of an arbitration clause in an employment agreement. In fact, the Eleventh Circuit had expressly indicated that an arbitration provision in an employment contract could cover claims that are not related to, or arising from, the plaintiff's employment—including those involving rape or sexual assault. Noticeably absent from the arbitration agreement was any limitation narrowing the scope to only those disputes, claims, or controversies relating to or in any way arising out of or connected with employment. Accordingly, Haasbroek failed to proffer any meritorious argument that the arbitration agreement excluded the instant claims because they are premised on allegations of rape. As a party to the agreement, Steiner was entitled to compel arbitration of the claims Haasbroek had brought against it. The court also found that the arbitration agreement did not apply to Princess, who was not a signatory to the agreement. The motion to dismiss and compel arbitration and the motion to remand was granted in part and denied in part. The court compelled arbitration as to Counts I, VI, and VIII against Steiner. The remaining claims against Princess and the allege rapist were remanded to state court. (USDC SDFL, December 12, 2017) 2017 U.S. Dist. LEXIS 204025
Quotes of the Month . . ."Be who you are and say what you feel, because those who mind don't matter and those who matter don't mind." --Dr. Seuss
"Keep your eyes on the stars and your feet on the ground." --Theodore Roosevelt
"The woman who follows the crowd will usually go no further than the crowd. The woman who walks alone is likely to find herself in places no one has been before." --Albert Einstein
Please note that these opinions and statements are my own. They do not represent the position of my employer or any other organization to which I belong. These opinions may not even represent my own opinion at a later time or place. Under no circumstances should these opinions and statements be considered legal advice. If you want legal advice, please consult an attorney.
NOTE: This is an email list for anyone interested in up-to-date Longshore and related maritime news. Please invite others to join. They may do so by simply sending an email message to LongshoreUpdate-subscribe@yahoogroups.com. Content will be in the form of summaries of recent court decisions, commentary, and (where possible) links to the decisions. Generally, mailings will be limited to once a month. Anyone working in the Longshore environment should find this useful. To unsubscribe at any time, please just send an email message to LongshoreUpdate-unsubscribe@yahoogroups.com.
Redistribution permitted with attribution.