March 2018
Notes From Your Updater: On January 25, 2018, a petition for certiorari was filed with the U.S. Supreme Court in the case of Kopras v. Marco Marine Construction, Inc., Docket No. 17-1066, 2018 U.S. S. Ct. Briefs LEXIS 377. The question presented for review was as follows: “In Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 538 (1995), this Court fashioned a multifaceted test for deciding when federal maritime law displaces State tort law. One facet requires courts to describe the case's "general features" at an "intermediate level of possible generality" to discern if the incident could "potentially" disrupt maritime commerce. Does damaging a recreational vessel while it rests securely in a boat lift both before and well after the damage have a realistic potential to disrupt maritime commerce?”
A petition for certiorari was filed with the U.S. Supreme Court on January 23, 2018 in the case of Volk v. Franz, et al., Docket No. 17-1044, 2018 U.S. S. Ct. Briefs LEXIS 294 [see April 2016 Longshore Update and November 2017 Longshore Update]. The questions presented are: “Whether a long-term employee engaged exclusively in maintenance and repair work on a fleet of 150-200 deck barges afloat in the Hudson River is a "seaman" under the Jones Act when the barges are under common ownership/operation of his employer, and he is injured while working on one of the vessels and whether the Second Circuit Court of Appeals misapplied the Chandris test and other authority from the Court by holding, as a matter of law, that Wayne Volk, was not a "seaman" under the Jones Act, 46 U.S.C. § 30104, thereby creating a conflict among the circuits.
On January 25, 2018, a petition for certiorari was filed with the U.S. Supreme Court in the case of Kopras v. Marco Marine Construction, Inc., 2018 U.S. S. Ct. Briefs LEXIS 377, Docket No. 17-1066. The question presented is: “Does damaging a recreational vessel while it rests securely in a boat lift both before and well after the damage have a realistic potential to disrupt maritime commerce?”
The Office of Workers Compensation, Division of Longshore and Harbor Workers’ Compensation has revised the Form LS-208 (Notice of Payments) to incorporate sections of the now obsolete, LS-206 (Payment of Compensation Without Award).Noteworthy changes made to the Longshore mandatory form LS-208 include: Form LS-208 has been renamed from Notice of Final Payment or Suspension of Compensation Payments to “Notice of Payments”. Incorporating relevant sections of the now obsolete Form LS-206. Reorganizing the report of payments made on account of permanent disability. Modifying the report of payments to allow up two (2) separate disability types. Modifying the new LS-208 to report initial, interim and final payments of compensation. Industry Notice 165 is available with a complete explanation of the changes made.
On February 26, 2018, the Benefits Review Board, Department of Labor published a final technical rule amending one section of the Benefits Review Board’s regulations in order to change the mailing address for notices of appeal and correspondence sent to the Board. The new address for notices of appeal and other Board correspondence is U.S. Department of Labor, Benefits Review Board, ATTN: Office of the Clerk of the Appellate Boards (OCAB), 200 Constitution Ave. NW, Washington, DC 20210–0001. The rule becomes effective March 28, 2018.
The Office of Workers Compensation, Division of Longshore and Harbor Workers’ Compensation (DLHWC) has instituted a new and more efficient method for submitting case create forms by fax and has changed the mailing address for Central Case Create Site. Effective March 1, 2018, the DLHWC is decommissioning the New York District Office’s fax number and replacing it with a program-wide system for submitting “case create” documents by fax at (202) 513-6814. The following forms result in DLHWC creating a new case and are referenced as “case create” forms:
LS-201 (Notice of Employee’s Injury or Death)
LS-202 (Employer’s First Report of Injury or Occupational Illness)
LS-203 (Employee’s Claim for Compensation)
LS-262 (Claim for Death Benefits)
Alternatively, beginning March 1, 2018, “case create” forms may also be submitted by mail to the new mailing address: U.S. Department of Labor, Office of Workers’ Compensation Programs, Division of Longshore and Harbor Workers’ Compensation, 400 West Bay Street, Suite 63A, Box 28, Jacksonville, FL 32202, Fax (202) 513-6814. Industry Notice 166 is available on the Office of Workers’ Compensation (OWCP), Division of Longshore and Harbor Workers’ Compensation (DLHWC) website for the detailed guidelines of the submission of “case create” forms and change of mailing address.
APPLICATION OF STATE EMPLOYMENT LAWS TO OCS FACILITIES
NEWTON V. PARKER DRILLING MANAGEMENT RGK AGR SERVICES, LTD.
Although not a maritime case, this case presented the novel question whether claims under state wage and hour laws may be brought by workers employed on drilling platforms fixed on the Outer Continental Shelf. Brian Newton worked on such a platform as a roustabout and painter for Parker Drilling. After Parker terminated him, Newton sued in state court for wage and hour violations under California law. Parker removed the case to federal district court and filed a motion for judgment on the pleadings. The district court granted the motion, concluding that the Fair Labor Standards Act is a comprehensive statutory scheme that is exclusive of California wage and hour laws. Newton appealed. The appellate court vacated the district court's dismissal on the pleadings, noting that the Outer Continental Shelf Lands Act provided that the laws of the adjacent state are to apply to drilling platforms fixed to the seabed of the Outer Continental Shelf as long as state law is "applicable" and "not inconsistent" with federal law. The panel held that California's minimum wage and overtime laws are not inconsistent with the Fair Labor Standards Act, which establishes a national floor under which wage protections cannot drop. The panel therefore vacated the dismissal of Newton’s claims. In addition, the panel vacated the dismissal of claims brought pursuant to California's meal period, final pay, and pay stub laws, and instructed the district court to determine on remand whether these laws are "not inconsistent" with existing federal law. Finally, the panel also vacated claims under California's Private Attorney General Act and Unfair Competition Law. The appellate court held that the absence of federal law is not, as the district court concluded, a prerequisite to adopting state law as surrogate federal law under the Outer Continental Shelf Lands Act and rejecting the proposition that "necessity to fill a significant void or gap," is required in order to assimilate "applicable and not inconsistent," state law into federal law governing drilling platforms affixed to the outer Continental Shelf. The appellate court vacated the district court's dismissal of Newton's claims and remanded for further proceedings consistent with its opinion. (9th Cir, February 5, 2018) 2018 U.S. App. LEXIS 2844
COURT DENYS CLAIMANTS' MOTION TO COMPEL PAYMENT OF CURE
IN RE: HEALY TIBBITTS BUILDERS, INC.
David B. Makua, III, and Cesario T. Gaspar (collectively, "claimants") sought an order compelling their employer, Healy Tibbitts Builders, Inc. (HTBI), to pay for magnetic resonance imaging scans (MRIs) that claimants' treating physicians had recommended. Claimants are HTBI employees who were injured in an accident while working on a project to upgrade moorings in Pearl Harbor. Claimants contended that they were entitled to this treatment, as well as attorney fees for work done to obtain the care, under the Jones Act or under the LHWCA. Either way, claimants contended HTBI was responsible to pay for this treatment as HTBI is both the Longshore insurance carrier and the putative Jones Act Seaman insurance carrier. HTBI contended that an order compelling "cure" was premature because claimants' status as seamen was, as yet, unsettled. The court had already determined that there were questions of fact as to whether, at the time of their injuries, claimants' job duties were primarily land-based, making them eligible for medical care under the LHWCA, or primarily sea-based, making them seamen entitled to cure under the Jones Act. Under either system, HTBI is responsible for providing reasonable and necessary medical treatment for claimants' injuries; HTBI denied the MRIs under the LHWCA and controverted an OWCP recommendation regarding Makua’s MRI, because he had an MRI seven months post-accident and there had been no interim injury nor a documented change in Makua’s condition. To the extent claimants were asking the court to order payment for the MRIs under the LHWCA, the court agreed that it had no jurisdiction to do so. As HTBI has argued, and claimants' do not deny, a worker seeking compensation under the LHWCA must proceed through the administrative procedure outlined in 33 U.S.C. § 919. Because the court had previously determined that a question of fact exists as to claimants' status as seaman (and no new evidence has been presented on that question), claimants' motion to compel payment of cure was denied. (USDC DHI, February 20, 2018) 2018 U.S. Dist. LEXIS 26995
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #286. 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 . . .
APPELLATE COURT HOLDS THAT ASSIST TUG IS NOT PART OF THE “TOW”
CONTINENTAL INSURANCE CO. V. L&L MARINE TRANSPORTATION, INC., ET AL.
This case involved a tow, in which three tugs were towing a barge, with one designated as the "lead" tug and the other two as "assisting" tugs. The three tugs—the M/V MISS DOROTHY, the M/V ANGELA RAE, and the M/V FREEDOM—were traversing the Mississippi River with a barge. The MISS DOROTHY, one of the assist tugs, allided with a portion of a bridge fender system and sank, resulting in a total loss. An insurance policy on the lead tug covered damage only to its "tow." Continental Insurance Company filed a complaint against the assist tug’s owners, L&L Marine Transportation, Inc, alleging that the ANGELA RAE was the lead tug and was responsible for coordination of the tow, arguing that the ANGELA RAE was negligent in several ways. Both Atlantic Specialty Insurance Company and P & I Underwriters insured the ANGELA RAE. This was a dispute between them regarding whose policy covered the incident. Atlantic Specialty was the Hull & Machinery insurer, while P & I provided Protection and Indemnity Insurance. Atlantic Specialty denied that its policy covered any liability for the MISS DOROTHY's allision and sinking. Accordingly, P & I filed a complaint against Atlantic Specialty, claiming that the Atlantic Specialty policy did so cover. The parties cross-moved for summary judgment, each alleging that the other's policy covered any liability for the loss of the MISS DOROTHY. The ANGELA RAE never collided with anything, nor was her tow stranded, subject to collision, or damaged in any way. Conversely, P & I's policy was much broader, indemnifying L&L for liability for loss of or damage to any other vessel or craft, or to property on such other vessel or craft, provided such liability does not arise by reason of a contract made by the assured. P & I contended that the loss of the MISS DOROTHY was covered by Atlantic Specialty's, arguing that the ANGELA RAE caused her "tow" to come into collision with the fender system. The district court agreed with P & I and granted it summary judgment, holding that the assisting tug was the "tow" because of a tort principle known as the "dominant mind" doctrine. Atlantic Specialty appealed, asking the appellate court to decide the meaning of "tow" for purposes of the insurance contract and whether the assisting tug was the "tow" of the lead tug. The central issue before the appellate court was the definition of the "tow," for purposes of Atlantic Specialty's policy. Turning to the dictionary, the appellate court noted that a “tow” was universally defined as a vessel that is being provided extra motive power from another vessel by being pushed or pulled. Dictionaries, cases, and treatises all pointed to a common understanding of "tow" as some ship or boat that is being provided extra motive power from another ship or boat by being pushed or pulled. As P & I rightly contends, the tow may have its own power—such as cruise ships or tankers being towed into a harbor—but the ship being towed is designated as the "tow" precisely because it receives auxiliary motive power from the tug or towing vessel. The appellate court pointed out that, under this plain-meaning approach, it was evident that the MISS DOROTHY was not the "tow" of the ANGELA RAE. The appellate court held that where three tugs are towing a barge, with one designated as the lead tug and the other two as assisting tugs, and where one of the assisting tugs allided with a bridge fender system and sank, an insurer was not required to provide coverage because "tow" as used in the applicable insurance policy was defined by its plain, ordinary meaning as a vessel that was provided auxiliary motive power by being pushed or pulled. Because the MISS DOROTHY was not provided any extra motive power, it was not a tow. Atlantic Specialty's policy did not apply. The summary judgment was reversed, and judgment was rendered for Atlantic Specialty. (5th Cir, February 15, 2018) 2018 U.S. App. LEXIS 3542
COURT ORDERS REINSTATEMENT OF MAINTENANCE & CURE (CONT.)
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. 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 [see November 2017 Longshore Update]. Shortly after entering the order, the district court transferred the case to the District of Alaska and vacated the order reinstating maintenance and cure. Once the case was transferred, Conger renewed her motion, which K&D opposed, noting that an IME and deposition of Conger had been scheduled. In her reply, Conger indicated her willingness to stipulate that her entitlement to retroactive maintenance can be frozen from the date a Rule 35 Exam was first requested by K&D, to January 16, 2018 when such examination is scheduled to occur. After reviewing the prior vacated order that had reinstated the maintenance and cure, the court agreed with its analysis that there was equivocation in regard to whether Conger had achieved maximum cure. Although K&D cited to Fifth Circuit authority for the proposition that ongoing medical treatment is a necessary predicate to continued maintenance, the court pointed out that Ninth Circuit authority provided that the maintenance obligation continues until the seaman is well or his condition is found to be incurable. Therefore, the court will granted the renewed motion to reinstate the maintenance and cure. The court denied Conger’s renewed request for attorney's fees. (USDC DAK, February 6, 2018) 2018 U.S. Dist. LEXIS 19255
COURT DISMISSES EMPLOYERS MAINTENANCE & CURE FRAUD COUNTERCLAIM
WHITCHURCH V. CANTON MARINE TOWING CO., INC., ET AL.
Kori Whitchurch was employed by Canton Marine as a deckhand and member of the crew of Canton’s vessel. Whitchurch alleged he hurt his shoulder pulling wire from a winch. Canton paid maintenance and cure to Whitchurch until January 2017, which totaled $18,258.97. Whitchurch filed his Complaint on October 13, 2016, alleging claims of Jones Act negligence and unseaworthiness and maintenance and cure under general maritime law. Shortly after this injury, on August 26, 2016, Whitchurch underwent a mandated Department of Transportation physical. During this physical, Whitchurch told the medical examiner that he had not sustained any recent injury, had no physical complaints, had no joint, nerve, or muscle problems, and had unlimited use of his arms and hands. Shortly after receiving a copy of the DOT physical report, Canton moved to file a counterclaim under FRCP 13(e), which was approved. Canton alleged that Whitchurch lied about the existence of his injury and fraudulently obtained benefits from Canton. In addition to allegations relating to the inconsistent DOT physical, Canton alleged that Whitchurch presented inconsistent and implausible stories as to how the accident occurred during the interviews and made inconsistent statements on a disability questionnaire that his treating physician acknowledged were not truly representative of his capabilities. Whitchurch moved to dismiss the counterclaim, arguing that the court lacked subject matter jurisdiction, that Canton failed to state a claim upon which relief can be granted, and that Canton had failed to meet the pleading requirements of fraud under FRCP 9(b). The court pointed out that it had supplemental jurisdiction over any claims that are so related to claims over which the court had original jurisdiction such that the related claims form part of the same case or controversy as the original claims. The court found that Canton’s counterclaim was that Whitchurch fabricated his accident and injury in order to receive maintenance and cure payments from Canton. These claims have a strong factual connection to Whitchurch claims for negligence, unseaworthiness, and maintenance and cure based on the same alleged accident and injury. Therefore, the court had subject matter jurisdiction over Canton’s counterclaim, so long as it alleges a cognizable claim under the applicable law. Here, the applicable law is federal maritime law. Canton’s counterclaim did not include a jurisdictional statement and did not invoke admiralty law pursuant to FRCP 9(h). However, regardless of whether a maritime tort claim is brought on the admiralty or the law side of a federal district court, the parties' rights and liabilities are controlled by federal principles of maritime law if the case arises from conduct that brings it within reach of the court's admiralty jurisdiction. Therefore, Canton’s counterclaim would only survive a motion to dismiss if there is a cognizable claim under federal maritime law. Generally, overpayments of maintenance and cure can only be recovered as an offset to any damages a seaman may recover under the Jones Act. Whitchurch argued that a claim to recover maintenance and cure obtained by fraud is not cognizable under maritime law based on the principles and holding of Boudreaux v. Transocean Deepwater,Inc., which held the McCorpen defense cannot be used as an affirmative cause of action. Canton argued that it had not invoked McCorpen, therefore the holding of Boudreaux and similar cases were inapplicable to their claims. The court found that the instant case was distinguishable from cases seeking to extend the McCorpen defense. Significantly, when the McCorpen defense applies, the seaman was actually injured and an accident occurred. Assuming all factual allegations in the amended counterclaim are true, the seaman here has fabricated the injury and accident itself. However, the general principles of limiting the availability of claims for restitution from maintenance and cure payments apply to this factual scenario as well. Given that the only precedents allowing such a cause of action did not thoroughly address the issue, the court expressed its hesitancy to allow such a cause of action to stand. The court was especially reluctant to allow an unprecedented cause of action for restitution under the facts of this case, where seaman appears to have medical evidence supporting the existence of at least some injury. Therefore, the court found that Canton had not alleged a cognizable counterclaim under maritime law and the court lacked subject matter jurisdiction over the counterclaim. Whitchurch’s motion to dismiss the counterclaim was granted and Canton’s counterclaim was dismissed without prejudice and with leave to amend. (USDC CDIL) 2018 U.S. Dist. LEXIS 15486
JONES ACT CLAIMANT HAS BUYER’S REMORSE AFTER SETTLING CLAIM
GREENE V. SEA HARVEST, INC., ET AL.
Wayne Greene, claims he was working on a Atlantic Capes Fisheries, Inc. fishing boat when he was allegedly injured, and suffered a rupture of his right distal bicep tendon. Despite his injury, Greene remained on the vessel and worked the rest of the trip until it returned to port a day or two later. Greene asserted claims for maritime negligence, unseaworthiness, and failure to provide proper maintenance and cure. Defendants moved to dismiss Greene’s claims, or seek summary judgment on his claims, based on a release that defendants contended Greene signed when he was cleared to return to work by his doctor. Defendants contend that Greene came to the Atlantic Cape Fisheries' office and met with the vice-president of operations, along with another employee who was a notary, to sign a fit-for-duty form and formal release of his claims. Greene was read each line of the four-page release, and asked whether he wanted to review it with a lawyer or his family. Greene declined, and after understanding that he was giving up all of his rights relating to his injury, signed the release. Defendants further relate that Greene was paid $16,800 in advance during his period out of work, $9,000 for maintenance, $25,000 for cure, and $5,000 in "new money" when he signed the release. Defendants argued that Greene’s claims against them are barred by this valid release, which was supported by proper consideration and was knowingly agreed to by Greene. In opposition to defendants’ motion Greene disputed defendants' characterization of the release and the circumstances of his meeting and the payments he received while on medical leave. Greene contended that the $50 per day in maintenance, which was insufficient under the law, left him in a dire financial condition, and desperate to return to work to regain his regular income. Green further claimed that he was told he would never work for Atlantic Cape Fisheries again if he did not sign the release or took the release to an attorney. (USDC DNJ, February 23 ,2018) 2018 U.S. Dist. LEXIS 29376
COURT ENFORCES FORUM SELECTION CLAUSE IN JONES ACT CASE
BRISTER V. AMERICAN COMMERCIAL BARGE LINES RIVER OPERATIONS LLC
Samuel Brister alleged he injured his back while working aboard a vessel owned and operated by American Commercial Barge Line LLC (ACBL) as a deckhand. Brister argued that the negligence of ACBL and the unseaworthiness of the vessel resulted in his alleged injury. After Brister filed his seaman’s complaint, ACBL moved to dismiss for improper venue, or in the alternative, to transfer venue, seeking to enforce a forum selection clause contained in Brister's post-injury benefits application which provides that any suit filed against ACBL related to Brister's injury may only be filed in the United States District Court for the Southern District of Indiana. Brister opposed the motion. ACBL asserted that, after Brister's alleged injury, ACBL notified him of his eligibility to apply for paid leave through ACBL's Pay Continuation Plan. This program allows ACBL employees to receive short-term pay continuance while they are on approved medical leave. Brister signed the "Pay Continuance Form," which contained the forum selection clause. Brister's application for post-injury benefits was approved, and he thereafter received pay continuance payments for 26 weeks. ACBL contended that by agreeing to the mandatory forum selection clause contained in the Pay Continuance Form, Brister waived his right to file suit in the Eastern District of Louisiana. The court found that the forum selection clause at issue was mandatory. The court found that Brister's assertions to the contrary to be without merit. The court also found that the specific clause at issue was not the product of fraud and overreaching. Therefore, Brister had not overcome the presumption that the clause should be enforced. Brister offered only private-interest factors in opposition to the motion to transfer. The court pointed out that these private-interest factors may not be considered by the court in its §1404(a) analysis, however, and Brister had not identified any public-interest factors that counsel against transferring the case to the forum to which the parties contractually agreed. The court therefore concluded that transfer of this matter to the U.S. District Court for the Southern District of Indiana was appropriate. ACBL’s motion to transfer venue was granted. (USDC EDLA, February 7, 2018) 2018 U.S. Dist. LEXIS 19719
COURT GRANTS LEAVE TO AMEND AFTER ITS OWN DEADLINE FOR DOING SO
RIVERA V. KIRBY CORPORATION, ET AL.
Jay Rivera, an Aransas-Corpus Christi pilot, allegedly injured his foot while on board a vessel he was assigned to in order to provide navigational guidance as it traveled from the Port of Aransas sea buoy to an oil dock. Rivera boarded the vessel by climbing up the pilot ladder and onto the deck of the vessel. As Rivera entered the interior of the vessel, stepping over a bulwark and through a watertight door, he stepped on the engine room access hatch, which was raised above the surface of the deck by approximately two inches. Rivera's foot rolled as he stepped on the uneven surface, and he allegedly suffered injuries to his foot. Rivera filed a complaint alleging that the defendants were negligent because they failed to mark the uneven surface, failed to warn him of the hazard, and failed to train the seaman who escorted him, and he also alleged that the vessel was unseaworthy because the engine room access hatch was defectively designed and not marked in a safe manner. After the court entered its docket control order, the parties sought the court's assistance with Rivera’s motion to amend his complaint, wherein he alleged that his medical condition had grown more serious since the case was filed, and that he was recently diagnosed with complex regional pain syndrome. Rivera also sought to add an allegation of negligence per se under the Pennsylvania Rule. Defendants opposed the request, in part, explaining that they were not opposed to Rivera including additional information about his medical condition, but they did oppose any new causes of action, particularly Rivera's requested additions of negligence per se and the Pennsylvania Rule. After considering Rivera’s proposed amendments, in light of the four factors laid out in the Fifth Circuit's Rule 16(b) case law, the court found that Rivera's motion to amend should be granted. Although Rivera's motion to amend was filed after the deadline for amended pleadings had expired, and the court also noted that many of these issues were at least obliquely (if not directly) raised during the discovery dispute about the vessel's safety manuals and training, the court nevertheless found that the overall circumstances of a prior discovery dispute and the pleadings in the case, as well as the fact that the discovery deadline is still months away, as well as the importance of the amendments to Rivera's case, weighed in favor of granting the motion. Considering all of the circumstances, the Court found that Rivera had established good cause and granted leave to amend. (USDC SDTX, February 6, 2018) 2018 U.S. Dist. LEXIS 19127
DEFENDANTS DISPUTE TIMELINESS OF EXPERT REPORTS
KNUDSON V. AMERICAN STEAMSHIP COMPANY, ET AL.
Jeffery Knudson, a seaman who was employed on American Steamship Company’s vessel, was allegedly injured during the course of his employment as the result of a fall from a height of 30 feet. Consequently, the nature and extent of his injuries and work limitations, as well as the prognosis and course of required treatment, were at issue. After Knudson filed his Jones Act suit, both parties retained experts to address these and other issues. Knudson timely filed his initial expert disclosure, identifying a number of experts, including Dr. Paul Macellari, a neuropsychologist, Dr. Kevin Krystal, a physical therapist, as well as a vocational rehabilitation expert and Knudson’s primary care physician. It did not identify occupational therapist Maureen Ziegler. Knudson did not provide a timely written report from Dr. Macellari, but later provided a written report characterized this as a "rebuttal report." The parties disagree about the reasons Dr. Macellari's report was not produced earlier, and moved to strike as untimely expert reports of Macellari and Ziegler. Knudson contended that Macellari was unable to complete his examination earlier because defendants improperly refused to authorize payment for a referral to Dr. Macellari, a referral made by Knudson’s treating physician, and failed to provide critical test data to Dr. Macellari. Knudson argued that therefore, defendants were improperly withholding payments for maintenance and cure. Defendants, on the other hand, argued that they were entitled to investigate and obtain corroboration for a claim of maintenance and cure, and are not required to immediately commence payment. Even if considered a "change of opinion," as defendants argue, the court pointed out that Knudson had a right and duty to supplement under Rule 26(e)(1). Dr. Macellari's was also properly considered a rebuttal of, and therefore responsive to, the defendant's expert report. Therefore the court held that Dr. Macellari's report did qualify as a supplemental report under Rule 26(e)(2), and should not be stricken. The court next addressed the untimely report by occupational therapist Maureen Ziegler. Under Rule 37(c)(1), the report was admissible only if the failure to disclose it was substantially justified or if its admission would be harmless. Permitting the Ziegler report would lead to yet another round of expert depositions, increasing the delay and the expense to defendants. Therefore, the court ordered the Ziegler report stricken. Defendant's motion to strike was granted in part and denied in part. (USDC EDMI, February 15, 2018) 2018 U.S. Dist. LEXIS 25231
MULTIPLE RULE VIOLATIONS RESULT IN FINDING OF NEGLIGENCE
IN RE: MARQUETTE TRANSPORTATION COMPANY, LLC
This case arose out of an allision between barges in the tow of a tugboat owned and operated by Marquette Transportation Company, LLC and barges owned by Monticello Equipment Corporation and operated by Kostmayer Construction, LLC. At the time of the allision, Marquette’s tug "contacted" the two crane barges operated by Kostmayer. At the time of the accident, Joseph Solomon, employed by Ameri-Force Craft Services, Inc. and assigned to work for Kostmayer, working on one of the crane barges involved in the allision. Marquette filed for limitation of liability relating to this incident and Solomon answered the limitation of liability as a claimant, averring that when the tug allided with the barge where he was working, he allegedly sustained personal injuries. Solomon also brought a third-party claim against Kostmayer as his Jones Act employer, seeking damages under the Jones Act and general maritime law. Following a bench trial on the liability portion of the case the court found that Solomon was a borrowed employee of Kostmayer, working as directed by Kostmayer supervisors on and from equipment provided and operated by Kostmayer. By virtue of his assignment to and substantial performance of his work aboard the crane barge, a vessel in navigation, Solomon had a connection to the barges which was substantial in nature and duration. Therefore, he was a seaman, with the right to assert a Jones Act negligence claim, and a general maritime law unseaworthiness claim, against his borrowed employer Kostmayer. Solomon also had the right to assert a general maritime law negligence claim against Marquette. The court also found that Kostmayer violated the terms of the permit by doing construction work in a location outside the area allowed by the Corps of Engineers, which triggered statutory fault. This violation justified application of the Pennsylvania Rule. Kostmayer's conduct was held to be negligent, and it failed to carry its burden under the PennsylvaniaRule to prove that its violations could not have caused the accident. Kostmayer was also negligent in failing to alert the Coast Guard about the position of its barges during the course of construction and its failure to utilize an assist vessel to communicate with river traffic and warn employees of impending allisions. Thus, the court concluded Kostmayer's conduct was a negligent cause of the accident. Marquette’s tug violated Rule 6 of the Navigational Rules in that it failed to proceed at a safe speed. The use of radar, in and of itself, is not sufficient to exempt a vessel from proceeding at a safe speed. The tug also violated Rule 7 by failing to use all appropriate means to determine whether a risk of allision existed, and to take appropriate, timely, and responsive action to avoid the allision. Additionally, under Rule 9, the tug was obligated to stay as far to her starboard as was "safe and practicable." She failed to do so; had she done so, the allision would not have occurred. Further the court found that Kostmayer had a non-delegable duty to provide Solomon with a safe place to work and to provide seaworthy equipment and crew on the vessel. The credible evidence supported the finding that Kostmayer breached this duty as it failed to properly locate and man its vessel, specifically by failing to provide any warning regarding potential allisions. This rendered the crane barge unseaworthy and also resulted in negligence which was a cause of the allision and Solomon's injuries. In concussion, the court held that the allision was caused by the combined fault of Marquette and Kostmayer. The court found that as to damages to the barges and dock, Marquette was 80% liable and Kostmayer was 20% liable. As to Solomon's damages, Marquette was 50% liable and Kostmayer was 50% liable. (USDC EDLA, February 14, 2018) 2018 U.S. Dist. LEXIS 24112
QUESTIONS OF FACT SURROUNDING CHARTER PRECLUDE SUMMARY JUDGMENT
IN RE: DANN OCEAN TOWING, INC.
This case involved the allision of a barge with a dock, when a tugboat attempted to moor the barge. Vane Line Bunkering, Inc. contacted Dann Ocean Towing to charter its tug to deliver one of Vane's unmanned tank barge. Dann Ocean rigged the barge to its tug in "pushing gear" and attempted a fair tide landing in order to moor the barge to the dock facing upriver, starboard side to the dock, as instructed by the dock owner. Because of the tremendous current, the barge collided with the dock, causing significant damage to the dock and loss of business to the owner, Buckeye Pennsauken Terminal, LLC. Several actions were instituted arising out of the allision. The two remaining actions were consolidated for all purposes and concerned Vane's liability for the accident. The issue before the court was whether the charterer of the tug could be held liable for the damages suffered by the Buckeye, and whether Dann Ocean could be liable for the Vane’s attorney's fees and costs incurred as a result of the tugboat's negligence. Vane moved for summary judgment on the claims against it by Buckeye and Buckeye moved for partial summary judgment on Vane's indemnification claim against Dann Ocean. Buckeye claimed that Vane was liable for the damage caused to its dock because Vane had extensive control over the tug, and because Vane failed to exercise due diligence and reasonable care in selecting a safe and competent tugboat to tow Vane's barge to Buckeye's dock. Vane argued that it could not be liable for Dann Ocean’s actions because the parties were operating under a traditional time charter, whereby Vane, as the time charterer, had no operational control over the tug, and assumed no liability for the vessel's unseaworthiness or damage due to the crew's negligence. Vane further argues that it, as a time charterer, did not have an independent duty to vet whether the tug was capable of safely docking its barge. In contrast, Buckeye argued that in addition to the fact that the time charter was only an oral agreement, Vane's actions refuted Vane's contention that it did not control the tug. Buckeye argued that the charter was more like a demise charter, and Vane's control over the tug evidenced that the parties did not intend to fully shift liability to Dann Ocean like a traditional time charter. Moreover, Buckeye argued that Vane was independently negligent by failing to safely control the maneuvers and activities of the tug, and by failing to make any inquiry into the substance of Dann Ocean’s safety protocols, procedures, or systems. The court concluded that the material disputed facts precluded the entry of summary judgment as to the terms of the charter party between Vane and Dann Ocean, the extent of Vane's control over the tug, and Vane's duty to investigate Dann Towing's safety procedures. Thus, because maritime law contemplated that Vane could be liable for its actions relative to the hiring of the tug, and that liability depended on the nature of the charter and the relationship between the charterer and vessel owner, summary judgment was denied. During the course of the case, Buckeye settled its claims against Dann Ocean for the damage it caused to Buckeye's dock and for Buckeye's lost business expenses. As part of the settlement, Buckeye agreed to indemnify Dann Ocean from Vane's cross-claims against Dann Ocean. At the time of settlement, Dann Towing affirmed that it had no written or oral agreement with Vane as to indemnification. Vane's cross-claims against Dann Ocean included a claim for indemnification. Vane argued that it is entitled to implied indemnification from Dann Ocean for the attorney's fees and other costs it expended in this litigation because Dann Ocean breached the warranty of workmanlike performance when, despite holding itself out as capable, it failed to safely dock Vane's barge at Buckeye's dock. The court found that any implied indemnification claim for Dann Ocean’s breach of the warranty of workmanlike performance was intertwined with the resolution of Buckeye's claims against Vane, which all centered on the relationship between Vane and Dann Towing, as well as Vane's independent duties as charterer. Thus, the court also denied Buckeye's motion for partial summary judgment. (USDC DNJ, February 15, 2018) 2018 U.S. Dist. LEXIS 24638
COURT ALLOWS DECLARATORY JUDGMENT COUNTERCLAIM TO PROCEED
REDMOND V. YACHTING SOLUTIONS, LLC
John Redmond alleged that he was injured while working for Yachting Solutions, LLC as a Jones Act seaman, and brought claims for negligence, unseaworthiness, and maintenance and cure. Redmond further alleged that Yachting Solutions had failed to pay Redmond's living expenses or pay the costs arising from his injury. In its answer to Redmond’s complaint, Yachting Solutions pled a multiplicity of affirmative defenses, including that Redmond's injury was a result of a pre-existing medical condition; that he failed to disclose the pre-existing condition when he was hired; that he has abandoned medical treatment; and that he continues to work while alleging that he is injured. Yachting Solutions also brought six counterclaims. Redmond moved to dismiss all six counterclaims. The court began its analysis by noting that since Yachting Solutions had not yet paid any maintenance and cure benefits, and thus has not sustained any legally cognizable damages, it seemed particularly evident that the misrepresentation and failure to disclose counterclaims were defenses to Redmond’s recovery and not a basis for any affirmative recovery on defendant's part. Regarding the willful misconduct and abandonment of medical treatment counterclaim, the Court noted that Yachting Solutions provided no authority for the proposition that the supporting allegations constitute anything other than a defense to maintenance and cure liability. The court found unconvincing Yachting Solutions citation to a single, non-precedential district court case in another jurisdiction that provided some support for its counterclaims. Yachting Solutions counterclaim for abuse of process also failed to state a claim. Similarly, the court found that Yachting Solutions counterclaim for punitive damages also failed to state a claim, finding that Yachting Solutions had provided no authority for the proposition that a claim for punitive damages may be a free-standing cause of action in admiralty. Finally, Yachting Solutions had brought a counterclaim for a declaratory judgment that it was not an employer as defined by the Jones Act, that Redmond was not a Jones Act seaman on the date of his injury, and that Yachting Solutions had no obligation to pay Redmond maintenance and cure benefits. The court agreed with Yachting Solutions that it would be premature, at this early stage of the litigation, to conclude that resolving Redmond’s claims would necessarily resolve the issues outlined in Yachting Solutions’ claim for declaratory judgment, declining to dismiss the final counterclaim. Redmond’s motion was granted in part and denied in part. (USDC DME, February 27, 2018) 2018 U.S. Dist. LEXIS 31470
COURT QUASHES SUBPOENAS IN FAVOR OF SEAMAN
MIMS V. B&J MARTIN, INC., ET AL.
Herbert Mims filed a seaman’s complaint alleging that he was on a crew boat, and was being transferred by crew basket to a rig when a large wave hit throwing him off the crew basket and causing alleged injuries. Mims claimed that his injuries were the result of the negligence, inattention, and carelessness of the defendants and their employees, as well as the unseaworthiness of the vessel. Mims further contended that he is entitled to maintenance and cure, as well as punitive damages and attorney's for the failure to pay maintenance and cure. After defendants issued subpoenas to multiple parties, Mims moved to quash four subpoenas that were noticed by B&J Martin, Inc. The subpoenas were sent to Louisiana Central Credit Union, Ally Bank Corporation, General Motors Acceptance Corporation, and OneMain Consumer Loan, Inc. Mims argued that the requests sought credit history, records related to loans, as well as loan payments, which have no bearing on the suit were an attempt to "sling mud" at Mims’ character. B&J opposed the motion, arguing that these records will help determine if Mims was having financial problems or had other incentives for his "baseless claim." B&J argued that there were a number of factors which raise the question of whether or not the claim was fabricated for financial incentive. Further B&J stated that Mims underwent back surgery and had provided an economic report detailing past and future loss of wages, and without the subpoenaed information the defendants has no access to these records. As the subpoenas were seeking financial and medical information of Mims, the court found that the subpoenas implicated a sufficient personal right and interest such that there was proper standing. In evaluating the subpoenas in question, the court found that they did not comply with the requirements of Rule 26(b) because they did not seek information relevant to the case and were facially overbroad. The Court further found that the requests themselves were either poorly and lazily drafted, creating facial overbreadth and irrational requests, or they were truly meant to harass Mims. As a result, the court found that the subpoenas in dispute in the motion were facially overbroad, sought information that was irrelevant to the case, and served the purpose of harassing the plaintiff about his financial history. As such, the motion was granted and the subpoenas were quashed. (USDC EDLA, February 25, 2018) 2018 U.S. Dist. LEXIS 29852
COURT GRANTS DECLARATORY JUDGMENT ON SUBROGATION WAIVER
CASTILLE, ET AL. VERSUS APACHE DEEPWATER LLC, ET AL.
Rory Castille, was employed by Total Safety U.S., Inc. on Apache Deepwater LLC's fixed platform, when he was allegedly injured. Castille and his wife filed claims under OCSLA against Apache as a result of the alleged accident. Apache and Total Safety had entered into a contractual indemnity agreement via a Master Service Agreement (MSA) wherein Total Safety would provide all contractual indemnity and defense to Apache. Total Safety accepted this agreement and at no time invoked the protection of the Louisiana Oilfield Anti-Indemnity Act. The MSA also contained a waiver of subrogation clause mandating that Total Safety and/or its workers' compensation insurer, Zurich, waive any and all rights of subrogation. Following Castille’s alleged accident, he received payment of workers' compensation benefits, presumably paid in part by Zurich and in part by Total Safety based on a self-insured retention held by Total Safety. In their motion, plaintiffs expressed concern that despite the waiver of subrogation agreement between Apache and Zurich/Total Safety, Zurich/Total Safety may attempt to assert subrogation rights if and when a positive verdict is rendered and final judgment in favor of the Castille’s was secured. Based on the record and long history of the action, as well as plaintiffs' motion and Apache's response, the court construed plaintiffs' motion as one to amend its complaint and add a declaratory judgment action against Total Safety and Zurich. The court ordered that plaintiffs' Rule 19 motion to compel Zurich American Insurance Company and Total Safety be granted in part as to plaintiffs' alternative memorandum in support of declaratory judgment under 28 U.S.C. §2201. (USDC WDLA, January 31, 2018) 2018 U.S. Dist. LEXIS 16717
Quotes of the Month . . ."It is the mark of an educated mind to be able to entertain a thought without accepting it." -- Aristotle
"There are some that only employ words for the purpose of disguising their thoughts." Voltaire
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“I count him braver who overcomes his desires than him who conquers his enemies; for the hardest victory is over self.” - - Aristotle
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