October 2018
Notes From Your Updater: On July 23, 2018, the Solicitor filed a briefin the case of Dominguez v. Bethlehem Steel Corporation, et al., opposing the widow’s Motion for Vacatur based upon the improper appointment of Longshore Division Administrative Law Judges. The Director argued that the petitioner forfeited her Appointments Clause challenge by failing to raise it before the agency.
Effective October 1, 2017, the new NAWW is $755.38, a 2.65% increase over last year. This means that the new maximum weekly compensation rate under the Longshore Act is $1,510.76 (twice the NAWW), and the new minimum weekly compensation rate is $377.69 (one-half the NAWW). Additional information can be found at the Department Of Labor website.
On August 30, 2018, a petition for writ of certiorari was filed with the U.S. Supreme Court in the case of The Dutra Group v. Batterton, Docket No. 18-266 [see February 2018 Longshore Update]. The question presented to the Court is, “Whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.”
FIFTH CIRCUIT OFFERS EXPLANATION OF APPROVAL OF SETTLEMENTS IN §33
PARFAIT V. DIRECTOR, OWCP [PERFORMANCE ENERGY SERVICES, LLC]
McGill C. Parfait filed a claim for total/permanent disability benefits under the LHWCA for back and chest injuries he allegedly sustained in an accident, while working for Performance Energy Services, LLC. Following a formal hearing, the administrative law judge awarded Parfait $1,493.60 in temporary total and temporary partial disability benefits for his chest injury. The ALJ denied his claim for benefits for his back injury. Parfait then appealed the ALJ's award to the BRB, which affirmed. Parfait then lodged his petition for review challenging the BRB's ruling denying total/permanent disability benefits for his back injury. Parfait also filed a third-party tort action against Apache Corporation and Wood Group. While his appeal to the BRB was under submission, Performance Services learned from counsel for Apache that Parfait had settled a portion of the third-party tort action. Performance Services also learned, after inquiring of Wood Group's counsel, that a judgment had been entered in favor Parfait against Wood Group. After the appeal was lodged in the appellate court, the Performance Services moved to dismiss the appeal alleging that Parfait failed to obtain their approval of the third-party settlement, or to notify them of the third-party judgment, as required by §33(g) of the LHWCA. In an effort to determine whether any factual issues were presented that required remand of this case to the BRB, the appellate court submitted questions to counsel for Parfait and Performance Services. Based on written responses by counsel for Parfait to questions posed by the appellate court, it was clear that Parfait received substantial sums from a settlement with and judgment against third parties and that the required notice was not given. The appellate court pointed out that, if an employee made a settlement with or obtained a judgment against a third party, at a bare minimum, the employee had to give notice of the settlement or judgment to his employer. The ultimate benefits to which Parfait was entitled had never been finally determined, and that determination was not necessary because, whatever the outcome of his appeal, his failure to give notice of the settlement and judgment would terminate his right to compensation. Parfait gave clearly inadequate notice of the settlement that was ultimately made, and the court's filing of the judgment obtained against the third party in the public record did not amount to the required notice to the employer. Parfait’s petition was dismissed. The appellate court found no reason to remand the case to the BRB for fact-finding. Parfait did not comply with the approval and notice requirements of §33(g) (1) and (2) with respect to his third-party settlement with Apache or his judgment against Wood Group. This failure requires termination of any right to compensation or medical benefits Parfait might otherwise have under the LHWCA. The appellate court therefore granted performance Services’ motion and dismissed Parfait’s appeal. (5thCir, September 11, 2018) 2018 U.S. App. LEXIS 25736
NO ABUSE OF DISCRETION FOR DENYING FEE PETITION IN ITS ENTIRETY
CLEMENS V. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, ET AL.
Dissatisfied with New York Central Mutual Fire Insurance Company’s (NYCM). handling of his insurance claim related to a serious car accident, Bernie Clemens filed suit against the company in Pennsylvania state court, asserting a contractual under insured motorist claim and a claim under the Pennsylvania Bad Faith Statute. After NYCM removed the case to federal court, the parties settled the UIM claim for $25,000. The bad faith claim, meanwhile, proceeded to a week-long trial, at the conclusion of which a jury found that NYCM had acted in bad faith in its handling of the insurance claim and awarded Clemens $100,000 in punitive damages. After a jury awarded him $100,000 in punitive damages under the Pennsylvania Bad Faith Statute, Bernie Clemens submitted a petition for over $900,000 in attorney's fees from NYCM. The district court denied this petition in its entirety, reasoning that it was not adequately supported and that the requested amount was grossly excessive given the nature of the case. On appeal, the appellate court found that the district court did not err in denying the fee petition from the insurer in its entirety because the district court's lodestar calculation reduced the requested fee by 87%; and the fee petition was severely deficient as counsel did not maintain contemporaneous time records for most of the litigation and recreated all of the records provided as part of the fee petition. Additionally, many of the time entries submitted were so vague that there was no way to discern whether the hours billed were reasonable. Some entries were, on their face, unnecessary or excessive, and counsel neglected their burden of showing that their requested hourly rates were reasonable in light of the prevailing rates in the community. Finding no abuse of discretion on the part of the district court, the appellate court affirmed, taking the opportunity to formally endorse a view already adopted by several other circuits—that is, where a fee-shifting statute provides a court discretion to award attorney's fees, such discretion includes the ability to deny a fee request altogether when, under the circumstances, the amount requested is outrageously excessive. (3rd Cir, September 12, 2018) 2018 U.S. App. LEXIS 25803
Updater Note: This isn't a Longshore case but I thought my readers may want to know about it. The Third Circuit has held that in the context of fee-shifting statute, which I maintain the Longshore Act is, the trial court may reject the requested attorney fee request outright if the amount of the claimed fee is excessive. Thanks to John Kawczynski, of Field & Kawczynski, South Amboy, NJ, for bringing this case to my attention.
WIDOW COLLATERALLY ESTOPPED FROM PROCEEDING UNDER THE STATE ACT
FILOSI, ET AL. V. ELECTRIC BOAT CORPORATION ET AL.
Katherine Filosi, as executor of the estate of the decedent, Donald L. Filosi, Jr., and as the dependent widow of the decedent, had been awarded benefits under the LHWCA for the death of her husband from lung cancer allegedly caused by workplace asbestos exposure while he was employed with Electric Boat Corporation. Filosi then sought benefits under the state Workers' Compensation Act. The administrative law judge in the prior federal proceeding found that the Filosi had established a prima facie case under the federal act by showing that the decedent had suffered harm and that workplace conditions could have caused that harm, triggering the presumption of coverage under that act. After Electric Boat presented evidence to rebut that presumption, the administrative law judge determined that Filosi had established that the decedent's lung cancer was work-related, crediting the testimony of one of Filosi’s experts that the decedent's past asbestos exposure was a "substantial contributing cause" of his lung cancer. Thereafter, in the state workers' compensation proceeding, Filosi claimed that Electric Boat was collaterally estopped from litigating the issue of causation by virtue of the administrative law judge's order. Electric Boat contended that, because the federal act requires a lower standard of causation than the substantial factor standard required under the state act, they should have been allowed to litigate the causation issue under the higher state standard. The workers' compensation commissioner determined that the defendants were not precluded from challenging causation because the administrative law judge had not defined the requisite causal connection required under the federal act. The commissioner then concluded that Filosi had not proven that the decedent's workplace exposure to asbestos was a significant factor in the development of his lung cancer, as required by the state act, and dismissed Filosi’s claim for benefits under the state act. Filosi appealed to the Compensation Review Board, which reversed the commissioner's decision, concluding that the administrative law judge in the federal proceeding relied on a medical opinion sufficient to meet the standard of proving causation applicable under the state act. Electric Boat thereafter appealed from the board's decision. The appellate court held that the board correctly determined that the defendants were collaterally estopped from litigating the issue of causation with respect to Filosi’s claim for benefits under the state act: the administrative law judge's finding with respect to causation in the proceeding for benefits under the federal act had preclusive effect in the proceeding before the commissioner because the administrative law judge applied the same substantial factor standard that applies under the state act when he determined causation by specifically crediting the testimony of the plaintiff's medical expert that the decedent's workplace asbestos exposure was a substantial contributing cause of the development of his lung cancer; moreover, because there was no universal causation standard under the federal act, the parties actually litigated the issue of causation in the federal proceeding, and the standard of causation that the administrative law judge applied was necessary to his decision concerning compensability, and, to the extent that the substantial factor standard as applied by the administrative law judge may have been erroneous as a matter of federal law, that error did not diminish the preclusive effect of the decision in proceedings under the state act. The decision of the Compensation Review Board was affirmed. (Conn. Sup. Ct, September 18, 2018) 2018 Conn. LEXIS 280
NO LEGAL DUTY OF AN EMPLOYER TO PROVIDE MEDICAL CARE
COOPER V. M.N. GUMBERT CORPORATION, ET AL.
Bradford Cooper sued M.N. Gumbert Corporation d/b/a S.O.T. Abrasives & Equipment, Gumbert M.N. Corporation, S.O.T. Abrasives, S.O.T. Abrasives a Division of M.N. Gumbert Corporation, and Sandpaper of Texas, Abrasives and Equipment, a Division of M.N. Gumbert Corporation (collectively, "SOT"), for failing to provide Cooper medical care when Cooper began experiencing symptoms of a stroke while at work. Cooper alleged that although he was obviously in need of medical care, his employer, SOT, sent him home rather than taking him to a doctor or the nearest emergency room. Cooper alleged that by failing to provide him necessary medical care, SOT failed to provide a safe place to work, and this failure amounted to negligence and gross negligence and proximately caused him the injuries he sustained as a result of the stroke. SOT filed a joint traditional and no-evidence motion for summary judgment. In its traditional motion for summary judgment, SOT asserted the evidence established Cooper was not incapacitated nor did SOT know he might have been incapacitated. SOT had no duty as an employer to force Cooper to seek or accept medical treatment for a non-work-related illness. SOT did not take affirmative control over Cooper's conduct. SOT's actions did not increase the risk of injury to Cooper; SOT's actions did not cause the damages that Cooper seeks. Instead, Cooper's damages were caused by his own negligent conduct and SOT did not act with gross negligence. In its no-evidence motion for summary judgment, SOT asserted Cooper could not produce evidence raising a genuine issue of material fact on all elements of his causes of action. Specifically, SOT asserted Cooper could produce no-evidence of incapacity, duty, affirmative control, causation, or gross negligence. The trial court granted SOT’s motion for summary judgment. Cooper appealed from the trial court's order. The appellate court found that summary judgment dismissal of Cooper’s claims against SOT was proper, because Cooper failed to present evidence showing the employer owed a legal duty to provide medical care to him, since Cooper did not present any evidence that at the time he left work to go see his doctor, he was in a state of helplessness or dependency or was incapable of helping himself. Because Cooper failed to present evidence showing SOT owed a legal duty to provide him medical care, and under the undisputed facts of this case no such duty arose, the appellate court affirmed the trial court's order. (Tex. 4th App. Ct, September 19, 2018) 2018 Tex. App. LEXIS 7625
LONGSHOREMAN’S $10 BILLION DOLLAR ASBESTOS CLAIM IS DISMISSED
KIRKLAND V. HUNTINGTON INGALLS INCORPORATED
Johnny Kirkland was hired by Defendant Huntington Ingalls Incorporated. According to Ingalls, the actual last workday of Kirkland's employment was September 18, 1978, and he was released from employment on September 25, 1978, based upon a designation of "Code 32-Probationary Release-Missing Time." Kirkland filed a pro se complaint in 2017, naming Ingalls Shipyard, John Manville, and Fibre Board as defendants and asserting that while he was employed at Ingalls Shipyard, he was exposed to asbestos which resulted in "his illness" in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Kirkland sought damages in the amount of $10 billion. After the court entered an order requiring additional information on the issue of subject-matter jurisdiction, Kirkland filed a response contending that defendants acted under color of state and federal law while causing his damages, and maintaining that Ingalls Shipyard was his employer, while John Manville and Fibre Board were suppliers. Ingalls moved to dismiss or, in the alternative, for summary judgment, contending that Kirkland's claims are within the exclusive jurisdiction of the Longshore and Harbor Workers' Compensation Act and are barred by the exclusive remedy provision of §905(a) of that Act. In the alternative, to the extent Kirkland’s claims are not preempted by the LHWCA, his claims fail to state a claim upon which relief can be granted because they are implausible and/or time barred by §15-1-49(1) of the Mississippi Code. Kirkland admitted that Ingalls was covered under the LHWCA but argued for the first time that, in addition to any claims that fall within the purview of the LHWCA, he was also suing Ingalls under the dual capacity doctrine for strict liability in tort, breach of duty, negligence, punitive damages, and illegal underage working, citing Mississippi Code § 71-1-17. Kirkland also posited that his claims were not barred according to §15-1-49(2) of the Mississippi Code, and that the LHWCA would not want anything to do with Ingalls hiring underage children and exposing them to asbestos. Ingalls replied that to the extent Kirkland's claims were not preempted by the LHWCA, they were barred by the three-year statute of limitations found at Mississippi Code §15-1-49(1). Ingalls maintained that although Kirkland is asserting for the first time in his response that his injuries were latent, such that they fall within the exception set forth at Mississippi Code §15-1-49(2), Kirkland had failed to come forward with relevant material evidence to support such a contention. After review of the motion, the response, the record as a whole, and relevant legal authority, the court was of the opinion that Ingalls had carried its burden of establishing that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. Kirkland conceded that a portion of his claims against Ingalls fell within the purview of the LHWCA. To the extent Kirkland's pleadings could be construed to assert any additional tort claims that may somehow fall outside the purview of the LHWCA, the court agreed with Ingalls that those claims would be barred by the three-year statute of limitations found at Mississippi Code §15-1-49(1). Ingalls motion for summary judgment was granted and Kirkland's claims were dismissed with prejudice. Ingalls’ motion to dismiss was denied as moot. (USDC SDMS, September 11, 2018) 2018 U.S. Dist. LEXIS 154501
LHWCA AND/ OR OCSLA DO NOT APPLY HERE (CONT.)
MAYS, ET AL. V. CHEVRON PIPE LINE CO., ET AL.
Peggy Mays (individually and as personal representative of the Estate of James Mays), Daphne Lanclos, Brent Mays and Jared Mays (collectively, "plaintiffs") brought this tort suit against Chevron Pipe Line Company and Chevron Midstream Pipelines, LLC for damages arising out of a workplace accident that resulted in the death of James Mays. Prior to Mays' death, Chevron Pipe Line and Furmanite America, Inc. (Mays' employer) entered into a Master Services Contract, whereby Furmanite agreed to provide control valve maintenance services for Chevron Pipe Line at its onshore and offshore facilities. Mays was sent by Furmanite to the Chevron platform to perform valve maintenance services. While Mays and others were removing the operator cap/bonnet cover plate from the valve, the pressure barrier was breached, causing the operator cap/bonnet cover plate and valve stem to be expelled. Mays was struck in the head by these objects and died as a result. After suit was filed, Chevron Pipe Line moved for summary judgment arguing because the accident occurred in state waters, the LWCA applied and under that act, Chevron Pipe Line was deemed Mays'"statutory employer" and was thus immune from suit in tort. In its original ruling, the court found plaintiffs had not established a substantial nexus between Mays' death and Chevron Pipe Lines' extractive operations on the outer Continental Shelf, and therefore, plaintiffs had failed to demonstrate a material fact existed with regard to whether the LHWCA applied through the OCSLA extension [see March 2016 Longshore Update]. Thereafter, the court granted plaintiffs' motion for reconsideration upon additional argument supplied, and reversed its prior ruling based upon the argument presented, finding summary judgment in defendant's favor to be unwarranted. The Court found the evidence was sufficient to raise an issue of material fact for trial - namely, whether there existed a "substantial nexus" between Mays' death and extractive operations on the shelf [see February 2017 Longshore Update]. Chevron then moved the court to certify its Ruling and Order on reconsideration for interlocutory appeal pursuant to 28 U.S.C. § 1292 (b), arguing that the court's ruling involved a controlling question of law. As the court's determination did not declare a controlling issue of law as required for certification under § 1292(b), Chevron’s motion to certify the ruling and order for interlocutory appeal was denied [see June 2017 Longshore Update]. Chevron next made four separate motions: A motion to bifurcate trial; a motion for oral argument; a motion for leave to file supplemental memorandum in support of motion in limine; and a motion to modify scheduling order or reconsider. The court denied all four motions. The court found that Chevron had not shown that trying the statutory-employer issue separately from the issues of liability and damages would economize—rather than further delay—resolution of this nearly four-year-old case. Nor had Chevron articulated how it would be prejudiced by a single trial. The court also declined to reconsider its denial of Chevron’s re-urged motion for summary judgment, as Chevron had neither clearly established that the court's ruling was manifestly erroneous, nor offered newly-discovered evidence justifying reconsideration. Chevron also offered no good reason why the court should pause this four year-old case to revisit the substantial-nexus issue and reconsider summary judgment. Finally, the court declined to modify its scheduling order to allow time for Chevron to file yet another summary judgment motion, finding that another round of summary judgment litigation was unnecessary. (USDC WDLA, September 14, 2018) 2018 U.S. Dist. LEXIS 157324
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #289. 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 indexthat 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 . . .
COURT FINDS WET DECK NOT OPEN AND OBVIOUS TO A REASONABLE PERSON
PETERSEN V. NCL BAHAMAS LTD.
Robert Petersen allegedly slipped and fell on the deck of a Norwegian Cruise Line cruise ship and sued NCL, claiming that NCL was negligent in several ways. Petersen's wife brought a loss of consortium claim. NCL filed a motion for summary judgment, arguing that NCL had no duty to warn Petersen of the dangerous condition because the dangerous condition was open and obvious; NCL had no duty to warn Petersen of the dangerous condition because it had no notice of the dangerous condition; and maritime law does not recognize a cause of action for loss of consortium. The magistrate judge recommended that summary judgment was appropriate on all of the Petersens' claims. Regarding Petersen's negligence claims, the magistrate judge concluded that NCL had no duty to warn Petersen of the slipperiness of the deck because the dangerous condition-the wet deck-was open and obvious. The magistrate judge did not address negligent maintenance at all in the report and recommendation. The Petersens objected to the report and recommendation, arguing again in part that NCL negligently maintained then deck. The district court adopted the magistrate judge's report and recommendation. Like the magistrate judge, the district court did not address negligent maintenance. On appeal, the Petersens argued that the district court erred by granting summary judgment in favor of NCL on Petersen's failure to warn claim based on the open and obvious doctrine because the unreasonably slippery nature of the deck was not open and obvious; the district court erred by granting summary judgment in favor of NCL on Mr. Petersen's negligent maintenance claim because NCL did not seek summary judgment regarding that claim; and the district court erred by denying the loss of consortium claim. The appellate court agreed with the Petersens that the evidence presented to the district court was sufficient for a reasonable juror to conclude that the deck on which Petersen fell was unreasonably slippery. Furthermore, the appellate court agreed that, although the wetness of the deck was open and obvious, the unreasonably slippery state of the deck may not have been open and obvious to a reasonable person. Because there was evidence in the record from which a reasonable juror could conclude that the deck was unreasonably slippery, the appellate court reversed the district court's grant of summary judgment on the failure to warn claim based on its conclusion that the water on the deck was an open and obvious risk. The appellate court concluded that the district court prematurely granted summary judgment regarding Mr. Petersen's negligence claims but properly granted summary judgment in favor of NCL on his wife’s loss of consortium claim. Accordingly, the appellate court affirmed with respect to the judgment of the district court regarding the loss of consortium claim, but reversed the grant of summary judgment as to Petersen's negligence claims and remanded to the district court for further proceedings on those claims. (11th Cir, September 5, 2018,UNPUBLISHED) 2018 U.S. App. LEXIS 25162
9TH CIRCUS DISSATISFIED WITH COURT’S HANDLING OF SEAMAN’S CASE (CONT.)
BARNES V. SEA HAWAII RAFTING, LLC, ET AL.
Chad Barnes was a seaman who was allegedly injured when the boat on which he was working exploded. During his recovery, Barnes received some monetary assistance from either Sea Hawaii Rafting, LLC (SHR), which owned the vessel, or Kris Henry, SHR's owner and manager, but those payments soon stopped. Seeking the ancient maritime remedy of maintenance and cure, Barnes sued the vessel in rem and SHR and Henry in personam to enforce his seaman's lien against the vessel. Although admiralty courts normally handle such matters expeditiously, that did not happen here for two reasons. First, the district court rejected Barnes's pretrial requests to enforce SHR's obligation to pay maintenance and cure. The court concluded that Barnes was entitled to maintenance and cure and had demonstrated his actual maintenance expenses. Nonetheless, despite undisputed evidence that Barnes was entitled to at least some of his actual expenses, the district court declined to award Barnes any maintenance until trial. Second, when SHR declared bankruptcy after fifteen months of litigation and shortly before trial, the district court stayed Barnes's action. The district court concluded that the vessel was an asset of the debtor's estate and that the automatic bankruptcy stay barred proceedings to enforce Barnes's maritime lien against the vessel. The bankruptcy court partially lifted the bankruptcy stay to allow the district court to evaluate Barnes's claims against SHR but expressly prohibited the district court from issuing any ruling that would affect the maritime lien's status. Ultimately, the district court dismissed Barnes's claims against the vessel. The court reasoned that it lacked in rem jurisdiction because, even though Barnes verified his original complaint, he failed to verify the amended complaint. Then, while Barnes's appeal was pending, the bankruptcy trustee—with the bankruptcy court's approval—sold the vessel purportedly free and clear of Barnes's maritime lien. The trustee subsequently moved to dismiss this appeal as moot. The appellate court held that it had jurisdiction under 28 U.S.C. §1292(a)(3) to review the district court's interlocutory order dismissing Barnes’ claims against the vessel because the order affected his substantive rights. The appellate court concluded that it lacked jurisdiction to review the district court's denial of summary judgment as to a maintenance amount, but it treated the notice of appeal as a mandamus petition. The appellate court went on to hold that the district court erred in staying the action when the vessel owner declared bankruptcy and in dismissing Barnes’ claims against the vessel for lack of in rem jurisdiction. The appellate court concluded that the district court obtained jurisdiction over the vessel when Barnes filed a verified complaint and the defendants appeared generally and litigated without contesting in rem jurisdiction, and Barnes’ failure to verify his amended complaint did not divest the district court of in rem jurisdiction. The district court did not lose in rem jurisdiction while the vessel remained in its constructive custody, and the court's control over the vessel, once obtained, was exclusive. The vessel owner's later-filed bankruptcy petition did not divest the district court of in rem jurisdiction. Moreover, the automatic bankruptcy stay did not affect Barnes’ maritime lien against the vessel, and the bankruptcy court had no authority to dispose of the lien through the application of bankruptcy law. The appellate court denied the bankruptcy trustee's motion to dismiss the appeal as moot after the trustee, with the bankruptcy court's approval, sold the vessel purportedly free and clear of the seaman's maritime lien. The appellate court held that the district court erred by denying Barnes’ maintenance requests in full and held that when a seaman establishes his entitlement to maintenance and provides some evidence of his actual living expenses, the burden shifts to the vessel's owner to produce evidence that the seaman's actual costs were unreasonable. Whether or not the vessel's owner produces such evidence, the seaman is entitled to a maintenance award in the amount of his actual costs up to the reasonable rate in his locality. The appellate court issued a writ of mandamus to the district court to award the seaman maintenance for his undisputed actual and reasonable expenses of $34 per day, subject to a potential increase after trial. The judgment of the district court was reversed and remanded with a mandamus grant [see April 2018 Longshore Update]. Barnes then moved to have the court order the seizure of the vessel pursuant to the ruling of the Ninth Circuit and to perform the arrest without prepayment of at least ten days of the marshal's expenses otherwise required under 28 U.S.C. §1291. The court initially noted that the 1988 amendments to 28 U.S.C. §1291 resolved a previous split in authority and the question of whether a seaman must prepay marshal's expenses was no longer an open question. line. Accordingly, it appeared to the court that prepayment of the marshal's expenses-even by a seaman-was required under the applicable law. The court gave the parties seven days from the entry of this order, however, to file any memoranda (of no more than five pages) if they disagreed with the court's conclusion. In a separate ruling, pursuant to the Ninth Circuit's writ of mandamus, the court found Barnes was entitled to an award of maintenance at the rate of $34 per day, subject to a potential upward modification after trial [see June 2018 Longshore Update]. On remand, the district court entered a minute order setting an expedited trial on Barnes' claims for maintenance and cure. Barnes's claim for maintenance and cure were subsequently tried to the bench. From Barnes's evidence and testimony at trial, the court found that Barnes had adequately established that his actual living expenses were $68.00 per day. The court also found that the defendants had failed to carry their burden to demonstrate that Barnes's actual expenses were excessive or unreasonable. The court therefore found Barnes was entitled to maintenance at the rate of $68.00 per day from the date of his injury to the current date. Barnes also provided evidence that the State of Hawaii-through its Department of Human Services Med-QUEST Division-holds a lien against Barnes in the amount of $21,697.76 as a result of necessary medical treatment provided to Barnes. Defendants introduced no evidence at trial to undermine or rebut Barnes's evidence as to this amount of curable damages, and the court thus found that Barnes was entitled to $21,697.76 in curable damages. The court also found that the defendants wholly failed to carry their burden to establish that Barnes had reached maximum medical cure. Barnes's treating physicians also reported that Barnes continues to schedule appointments with them and seeks treatment for his accident-related conditions. Therefore the court held that Barnes had not yet reached maximum medical cure. The court found that the amount of time that had passed since defendants unambiguously were obligated to pay Barnes maintenance and cure-including after Barnes's rejection of the proposed stipulated amount of maintenance-weighed in favor of awarding punitive damages and attorneys' fees. Accordingly, the court found that Barnes was the prevailing party and had sufficiently demonstrated that defendants acted willfully and wantonly in failing to pay him maintenance and cure and that defendants were liable for punitive damages and attorneys' fees and costs. Based on the evidence and testimony presented at trial, the length of time Barnes had not received any payments of maintenance or cure, the complicated factual and procedural history of the case, and defendants'pro se status for a considerable portion of those proceedings, the court found it appropriate to award Barnes $10,000.00 in punitive damages. Finally, the court found that pre-judgment interest at the rate of 10.00% per year was appropriate. Accordingly, pursuant to FRCP 54, the court entered judgment in favor of Barnes and against defendants in the amount of $305,856.64. (USDC DHI, September 6, 2018) 2018 U.S. Dist. LEXIS 152330
5TH & 1ST CIRCUITS CLASH ON WHO IS AN OPERATOR UNDER OPA 1990
UNITED STATES OF AMERICA V. NATURE'S WAY MARINE, LLC, ET AL.
A tugboat owned by Nature’s Way Marine, LLC was moving two oil-carrying barges owned by Third Coast Towing pursuant to a towage agreement between the parties. During the transit, the barges collided with a bridge and over 7,000 gallons of oil was discharged. Both Nature’s Way and Third Coast (along with their relevant insurers) were designated as ‘responsible parties’ under OPA 90. Nature’s Way spent approximately $2.99 million dollars on clean-up and various government agencies spent an additional $792,000 responding to the spill. Nature’s Way claimed that it was entitled to an OPA 90 limitation of liability, an OPA 90 affirmative defense, capping its liability to a figure based on the tonnage of the tugboat and not the combined tonnage of the tugboat and barges. Nature’s Way sought reimbursement of $2.13 million for response and remedial costs from the National Pollution Funds Center (NPFC), as well as a ruling that it was not responsible to reimburse the government $792,000 for additional clean-up costs. The NPFC denied the claims and determined that Nature’s Way was an “operator” of the oil-discharging barge at the time of the collision. The United States sued to recover its clean-up costs. Nature’s Way counterclaimed that the NPFC violated the Administrative Procedure Act by arbitrarily and capriciously determining Nature’s Way was an “operator” of the barge. The district court granted the government partial summary judgment concluding that a ‘common sense’ understanding of the term “operator” under OPA 90 would include a tugboat owner that was moving a barge through the water. On appeal, the appellate court acknowledged that OPA 90 does not define “operating” and only provides a circular definition of an “operator” as “. . . any person owning, operating, or chartering by demise, the vessel.” The appellate court explained that the term “operator” must be given its ordinary or natural meaning and would include someone who directs, manages, or conducts the affairs of the vessel. By extension the ordinary and natural meaning of “operating” a vessel under OPA 90 would necessarily include the act of piloting or moving the vessel. Because Nature’s Way had exclusive navigational control over the barge at the time of the collision, it was a party whose direction (or lack thereof) caused the barge to collide with the bridge. The appellate court rejected the tug owner’s arguments that it could not have been “operating” the tug on the grounds that it was merely moving the barge pursuant to Third Coast’s directions (in accordance with the parties’ towage contract) and it did not exercise control over the barge’s environmental affairs or inspections. The district court's grant of partial summary judgment for the government was affirmed. (5th Cir, September 21, 2018) 2018 U.S. App. LEXIS 27152
Updater Note: The Fifth Circuit’s holding in this case is straightforward, however, its analysis and application of the term ‘operator’ appears to be directly at odds with a First Circuit Court of Appeals decision from one year ago in Ironshore Specialty Insurance Co. v. United States of America. In Ironshore, the First Circuit was called upon to decide whether a vessel which caused an oil spill in a graving dock in Boston Harbor was exempt from OPA 90 liability on the grounds that it was a “public vessel” under the statute. A “public vessel” is one that is “owned andoperated” by the United States. In Ironshore, the contracted operator of the vessel was a civilian company, American Overseas Marine Company, LLC (“AMSEA”), which had the responsibility to crew, maintain, navigate, and make routine repairs to the vessel. Notwithstanding, the government argued (and the First Circuit accepted) that even though the vessel was operated by AMSEA (and its civilian staff), the vessel qualified as a public vessel because AMSEA contracted to operate the vessel under the “ultimate operational control of one of five military commands.”
COURT FINDS PHYSICAL THERAPY PALLIATIVE AND NOT CURATIVE
TRANSOCEANIC CABLE SHIP COMPANY LLC V. BAUTISTA
Transoceanic Cable Ship Company, LLC filed a declaratory judgment action seeking a binding declaration that Jose Fiesta Bautista, Jr. was no longer entitled to the payment of maintenance and cure benefits, because any injuries Bautista had sustained while a crew member aboard its vessel had reached maximum medical cure. The matter was tried before the bench and the court began by noting that Transoceanic, as the shipowner, bore the burden of proving by a preponderance of the evidence that Bautista had reached maximum cure in relation to the injuries he sustained in service of the vessel and that if any doubt existed as to whether Bautista maximum cure had been reached, court must resolve such doubt in favor of the seaman. The court found that the evidence presented by the parties was ambiguous as to whether Bautista suffered a right knee injury in service of the vessel, and the court resolved that ambiguity in Bautista's favor and concluded that Bautista did suffer a knee injury that entitled him to maintenance and cure. The court drew this conclusion in light of the fact that Bautista's medical records reflect that he reported knee pain while still aboard the vessel. The court further concluded that Bautista suffered a back injury in service of the vessel and that both Bautista's right knee and back injuries reached maximum medical cure as of August 21, 2017 based upon the medical evidence. Moreover, the court noted that Bautista's conditions appeared to be stable and unlikely to change and that further treatment would result in no betterment of Bautista's knee and back conditions. The court observed that the physical therapy Bautista was undergoing appeared to have resulted in no improvement in Bautista's condition, and this treatment of Bautista's ailments had been palliative rather than curative. Despite Bautista’s protestations to the contrary, the court further concluded that Bautista suffered no neck injury during his service aboard the vessel. On the preponderance of evidence the court concluded that all of the injuries Bautista incurred in service of the vessel had reached maximum medical cure. Judgment was granted in favor of Transoceanic and against Bautista. (USDC DHI, September 5, 2018) 2018 U.S. Dist. LEXIS 151007
COURT DISMISSES ALL OF SEAMAN’S CLAIMS AGAINST MULTIPLE DEFENDANTS
ROCKETT V. BELLE CHASSE MARINE TRANSPORTATION, LLC, ET AL.
Darrin Rockett filed his seaman’s suit against Belle Chasse Marine Transportation, LLC, Associated Marine Anchorage of St. John, LLC, and St. John St. John Enterprises, LLC, seeking damages for injuries he allegedly sustained in a maritime accident. Rockett alleged he was injured when he was employed as the captain of a vessel in navigation owned, operated and controlled by Belle Chasse. Rockett was the only person aboard the vessel at the time. Rockett claimed that he left the navigation channel to avoid traffic, and that the vessel struck a submerged object and became airborne. Rockett alleged that the submerged object, that he admittedly never saw, was a buoy and that Associated Marine and St. John owned, maintained, or were otherwise responsible for. He alleged the buoy was improperly marked, maintained, and/or positioned. As a result of the allision, Rockett allegedly sustained injuries to his head and other parts of his body. Rockett reported the accident to his supervisors at Belle Chasse. However, neither Associated Marine nor St. John were notified until a year-and-a-half later and there was no investigation to determine what Rockett allegedly hit. Rockett's claims against Belle Chasse include a negligence claim under the Jones Act, and general maritime law claims for unseaworthiness and failure to pay maintenance and cure, along with punitive damages related to the failure to pay maintenance and cure. Rockett alleged a general maritime law negligence claim against Associated Marine and St. John, and sought punitive damages associated with that claim. Associated Marine and St. John moved for summary judgment, arguing that they were entitled to summary judgment as to all of Rockett's claims against them because there was no proof of what he hit, much less that they controlled whatever it was. Belle Chase also moved for summary judgment, arguing that it was entitled to summary judgment on Rockett’s Jones Act and unseaworthiness claims because Rockett could not prove that it was negligent or that the vessel was unseaworthy. The court pointed out that in order to establish liability when a vessel strikes an object in navigable water, the plaintiff must prove that the defendant owned, placed, maintained or controlled the object. It is not enough that the defendants' operations were closest to the allision site. The court found that Rockett had failed to offer proof to link the object he hit to Associated Marine or St. John. Rockett admitted in his deposition that he never saw the object he hit. Also, because he did not make allegations against Associated Marine or St. John for over a year-and-a-half after the accident, there was no investigation done to discover what Rockett hit. Rockett assumed that he hit a buoy belonging to Associate Marine or St. John because he was in the vicinity of their facility when the accident occurred, but he offered absolutely no proof of what the vessel struck, much less that it was associated with either Associated Marine or St. John. Therefore, Associated Marine and St. John's motion for summary judgment was granted, and Rockett's claims against them were dismissed. The court then turned to Belle Chase’s motion, noting that the basis of the negligence claim was that Belle Chasse failed to properly train Rockett to navigate in high water conditions. The basis of the unseaworthiness claim was that the vessel lacked navigational charts, the radar was not operating properly and the vessel lacked a second crew member to serve as a lookout. The court found that Rockett was operating the vessel when he struck a submerged object. Rockett was a licensed captain with a 100 ton endorsement, credentials that exceeded those necessary to operate the vessel. Rockett was an experienced seaman, who worked for 8 years on the section of the Mississippi River where the accident occurred. He testified that he was familiar with the buoy system that he supposed he hit. A vessel owner does not have a duty to instruct a seaman on how to perform a routine task in which he is well-versed. Avoiding a known buoy system is a matter of common sense for a licensed captain. Belle Chasse had no duty to specifically train Rockett on how to navigate the vessel at that precise moment. Rockett made the ultimate choice on how to navigate the vessel based on his training required to obtain his captain's license and his years of experience working on that stretch of the Mississippi River. Rockett also admitted at his deposition that he would not have used navigational charts had they been onboard the vessel and that the radar would not have shown submerged buoys in the area. Thus, neither the alleged lack of charts nor issues with the radar were a cause of the accident. Further, Rockett's liability expert opined that the vessel did not need a separate person to serve as a lookout because it is a small pilot boat, and Rockett himself was sufficient to serve as a lookout. Therefore, the vessel was not unseaworthy for having an inadequate crew. Belle Chasse's motion for summary judgment on Rockett's negligence and unseaworthiness claims was granted and both claims were dismissed. (USDC EDLA, September 5, 2018) 2018 U.S. Dist. LEXIS 150850
COURT FINDS MATERIAL FACT IN DISPUTE PRECLUDING SUMMARY JUDGMENT
TAYLOR V. MARQUETTE TRANSPORTATION COMPANY GULF INLAND, LLC
Joseph Taylor allegedly suffered personal injury when he fell from a piling owned by United Bulk Terminal. Following his alleged injury, Taylor filed suit against his employer, Marquette Transportation Company Gulf-Inland, LLC. After discovery was completed, Marquette moved for partial summary judgment, arguing because Taylor’s fall occurred from a piling owned by United Bulk Terminal, his injuries were not the result of the unseaworthiness of its vessel. Additionally, Marquette argued it did not owe Taylor a duty of seaworthiness for an injury sustained off the vessel. Alternatively, Marquette argued, if it did owe Taylor a duty of seaworthiness for an injury sustained while not onboard its vessel, the vessel was a seaworthy vessel that did not employ any unsafe work methods. Taylor opposed the motion. The court noted that Taylor was allegedly injured himself while attempting to tie off two empty barges and was actually standing on United’s piling when he slipped and fell. The parties disputed whether the vessel conducted safety meetings and whether the vessel's captain provided adequate safety training or warnings to his crew. The parties also disputed whether the vessel was outfitted with proper equipment for the job. Taylor contended a pike pole would not have allowed him to unfoul this particular line. Instead, he claimed he needed to board the piling to unfoul the line. The court concluded that Marquette had failed to meet its burden of establishing that there was no disputed issue of material fact and that it is entitled to judgment as a matter of law. To determine whether an unsafe method of work was used on the vessel, there must be no facts in dispute regarding the proper equipment, training, number of crew, and method for performing the job. The court found that genuine issues of material fact existed as to whether the vessel allowed its crew to engage in an unsafe work method, thus rendering the vessel unseaworthy. Marquette’s motion for summary judgment was denied. (USDC EDLA, September 23, 2018) 2018 U.S. Dist. LEXIS 162327
CREW MEMBER STATEMENTS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE
MCQUAY V. TENNESSEE VALLEY AUTHORITY, ET AL.
Timothy McQuay was working for Inland Marine Service, Inc. (IMS) as a deckhand on its vessel, which was delivering a loaded coal barge to the off loader at a Tennessee Valley Authority (TVA) plant. During that process, a haul wire suddenly became taught and the eye of the haul wire broke apart in a whipping action, striking McQuay's left lower leg. McQuay underwent surgery to repair his left lower leg. Following the incident, an attorney representing IMS boarded the vessel and recorded the crewmembers' statements regarding the incident. TVA sought these recorded statements through discovery, but IMS objected. TVA then sought a court order directing IMS to produce the recorded statements. IMS explained that they were asserting the attorney-client privilege applied to the recorded statements. TVA asserted that the proffer by IMS's counsel during the hearing failed to show the IMS attorney recorded the crewmember statements because of a subjective anticipation of litigation that was objectively reasonable. TVA contended that the proffer instead showed the crewmember statements were recorded in the ordinary course of IMS's business as part of its duty to report a marine casualty to the United States Coast Guard and facilitate the Coast Guard's own investigation. If the Court determined the recorded statements were work product, TVA argued the statements are ordinary rather than opinion work product and are discoverable because it had a substantial need for the material as TVA had no eyewitness accounts and almost four years had passed since the accident; and there was no way for TVA to obtain the substantial equivalent of the nearly contemporaneous statements given by the crew members, which likely contained information that no deposition could bring out. Finally, TVA asserted that IMS had waived its newly raised claim of attorney-client privilege by failing to raise it in the first privilege log and its email communication to the court summarizing the discovery dispute. IMS asserted that its proffer at the hearing demonstrated the recorded crewmember statements were exempt from disclosure under the attorney-client privilege because they were confidential communications from IMS's employees to IMS's attorney, made at the direction of IMS corporate superiors, in connection with the provision of legal advice to IMS and in the context of an attorney-client relationship between IMS and their attorney’s firm. Alternatively, IMS argued its proffer provided sufficient information to conclude that IMS's counsel recorded the crewmember statements because of the prospect of litigation and, therefore, the recorded statements were protected from disclosure under the work product doctrine. Relying upon information provided during counsels' proffer and deduced from an in camera review of the transcripts of the recorded crewmember statements, the court found that the communications at issue were made by IMS employees to counsel for IMS, at the direction of corporate superiors at IMS, in order to secure legal advice from counsel. While corporate superiors at IMS conveyed the instructions to the captain or pilot of the vessel, there was adequate information before the court to find the instructions were relayed to the other crewmembers and that they all were sufficiently aware they were being questioned by counsel so that IMS could obtain legal advice from counsel with regard to the McQuay incident. Additionally, there was more than adequate information before the court to conclude that the each of the confidential communications made to counsel concerned matters within the scope of the crewmember's duties. Furthermore, counsel for IMS had taken appropriate steps to keep these communications confidential. Therefore, the court concluded that the recorded crewmember statements were subject to the attorney-client privilege and must be protected against compelled disclosure. The court did not find TVA's waiver argument persuasive because TVA had been accorded an adequate opportunity to challenge IMS's claim of attorney-client privilege. The remainder of TVA's objections were without merit because the court found that IMS satisfied its burden of demonstrating that the recorded statements are subject to the attorney-client privilege. TVA's motion for an order directing IMS to produce the recorded crewmember statements was denied. (USDC WDKY, September 10, 2018) 2018 U.S. Dist. LEXIS 153460
COURT APPROVES CLAIMANTS’ STIPULATION IN LIMITATION ACTION
IN RE: BOUCHARD TRANSPORTATION CO., INC. ET AL.
Tug Buster Bouchard Corp., B. No. 255 Corp., and Bouchard Transportation Co., Inc., as owner and operator of Tug Buster Bouchard, (collectively "Bouchard") filed a petition for exoneration from or limitation of liability pursuant to 46 U.S.C. § 30501, et seq. in connection with allegations that the vessel was negligently operated when Barge B. No. 255 sustained an explosion. All claimants filed an answer to Bouchard's complaint and, at the same time, also filed their first motion to dissolve the limitation injunction. Claimants' motion was denied without prejudice. Bouchard then moved for partial summary judgment on pre-death pain and suffering damages. On the same day, claimants filed their renewed motion to dissolve the limitation injunction. The court found that claimants' stipulation adequately protected Bouchard's rights and pointed out that Bouchard failed to cite to any precedent requiring claimants to enter an agreement between themselves to not proceed in this limitation action before each of the claimants' state court actions were final. Further, all of the claimants, through counsel, had agreed to be bound by the stipulations. Additionally, Bouchard’s argument the individuals who entered into the stipulation did not have standing to do so was without merit. All claimants have signed the required stipulation. Bouchard has not provided any evidence showing the stipulation inadequately protects their rights. If these parties lack standing to assert claims, then the fact they signed a stipulation is of no consequence as they cannot proceed in any action and the time to assert claims according to the court's order has passed. None of the three cases cited by Bouchard supported its argument that there is a conflict of interest and the stipulation is inadequate when claimants' lawyers represent more than one claimant. While there may be competing interests at some point in this litigation, any conflict of interest at this stage was only hypothetical as the court had not yet determined whether liability may be limited and there are no judgments in excess of any limitation fund. Therefore, there is no actual conflict of interest at this point and the stipulation is sufficient to protect Bouchard's right under the Limitation Act. Claimants' renewed motion to dissolve the limitation injunction was granted. (USDC SDTX, August 23, 2018) 2018 U.S. Dist. LEXIS 152959
QUESTION OF MATERIAL FACT REGARDING PRE-DEATH PAIN AND SUFFERING
IN RE: BOUCHARD TRANSPORTATION COMPANY
An explosion occurred on Barge B. No. 255, resulting in the death of crew members Zachariah Jackson and Du'Jour Re'Quan Vanterpool. The barge was owned by Tug Buster Bouchard Corp. and was operated by Bouchard Transportation Co., Inc. Both Jackson and Vanterpool were crewmembers at the time of the incident. Jackson's body was never found and he was presumed dead. Vanterpool's body was found and identified. Additionally, both Jackson and Vanterpool's shoes were later found, all badly burned. Bouchard, Tug Buster, and B. No. 255 Corp. (collectively “Bouchard”) brought a limitation action. The estates of both Jackson and Vanterpool each answered the limitation complaint, asserting claims under the Jones Act for loss and pre-death pain and suffering. The Court approved the stipulation for costs and security for value which listed the value of the vessel and cargo as $5,952,151.55. Bouchard then filed motions for partial summary judgment, arguing that as Jackson's body was never found, there was no evidence that pre-death pain and suffering occurred. Furthermore, Bouchard argued Vanterpool's head was severed and he died instantly as a result. Vanterpool's estate counters, through a medical expert report, that Vanterpool's head was not fully severed, his death was not instantaneous, and he was on fire prior to the explosion. Additionally, Vanterpool's estate also asserted that Bouchard’s expert report should be struck as unreliable. Jackson's estate also filed a response asserting Jackson, like Vanterpool, was on fire before the explosion citing to the affidavit of a crew member. The court found that there was a genuine dispute of material fact regarding whether Jackson and Vanterpool experienced pre-death pain and suffering. Bouchard’s motions for partial summary judgment were denied. (USDC SDTX, August 23, 2018) 2018 U.S. Dist. LEXIS 158164
COURT GRANTS SUMMARY JUDGMENT TO NOMINAL EMPLOYER
MORRIS V. SPENCER OGDEN, INC., ET AL.
Spencer Ogden, Inc. is a company that supplies workers to other companies in the energy and offshore industries. Ogden entered into a Master Purchasing Agreement with Transocean Onshore Support Services Limited, which governed the relationship between the parties and the provision of personnel by Ogden to Transocean. Ogden contracted with John Michael Morris for Morris to work as a roustabout. Morris was eventually assigned to work on a rig which was owned and operated by Transocean Deepwater Drilling Inc. Morris was allegedly injured when a lifting cable suddenly tightened, and Morris's right hand, as well as his ring and middle fingers, were crushed. At the time of the incident, Transocean's equipment was in satisfactory condition, and Morris was wearing appropriate safety gear. Nonetheless, Morris had not yet completed his on the job training. Pursuant to Transocean's HSE manual, all company personnel involved in lifting operations must complete the Banksman/Slingers OJT and be aware of the correct and safe use of lifting equipment for the task. Morris sued Ogden and Transocean Offshore USA, Inc., alleging claims under the Jones Act and the general maritime law. Ogden moved for summary judgment in its favor, dismissing the Morris’s Jones Act negligence and general maritime law claims, arguing that it was not negligent and pointing to Morris's complaint, which alleges that he was injured aboard the Transocean rig during the lifting of large boxes; that Transocean owned, operated, and controlled this vessel; and that this operational control extended to the vessel's entire crew, including the Morris. Notably, neither the complaint nor amended complaint alleged any type of wrongdoing or negligence on the part of Ogden that caused or contributed to the incident, aside from the conclusory allegation that Morris was injured as the result of the negligence of Ogden. Further, during his deposition, when asked whether Ogden played any part in causing the accident, Morris said, "I wouldn't think so." Perhaps most importantly, Morris conceded in his opposition papers that the facts demonstrate that Transocean is 100% at fault for the incident and his injuries and that he, in principle, does not contest Ogden's motion on the basis of its lack of liability. The court found nothing in the summary judgment factual record that would support a finding of negligence on the part of Ogden, and that summary judgment dismissing the plaintiff's Jones Act claim is appropriate. Likewise, any unseaworthiness claim that Morris sought to assert against Ogden had no support in the summary judgment factual record. Spencer Ogden's motion for summary judgment was granted. (USDC EDLA, September 17, 2018) 2018 U.S. Dist. LEXIS 157659
COURT FINDS FACT QUESTION PRECLUDES 905(B) SUMMARY JUDGMENT (CONT.)
GUIDRY V. NOBLE DRILLING SERVICES INC, ET AL.
Glen Guidry was employed as a field service representative by VAM USA, LLC, a subcontractor of Shell. VAM performed casing operations aboard a drill ship, which was owned by Noble Drilling Services. Guidry was inspecting a joint casing while standing upon the drilling floor, which was covered in mud. Guidry slipped and allegedly sustained injuries to his back, ligaments, muscles, and nervous system. He sued Noble, claiming that he was injured as a result of the their negligence and seeking relief under general maritime law and the LHWCA. Nobel moved for summary judgment, contending that nothing in the record created a material fact issue and that Guidry had not submitted evidence that supports his claim that Nobel breached the duty owed to him. But the court found that Guidry had submitted testimony that undermined Nobel’s arguments. Nobel pointed to Guidry’s testimony that he was aware that mud and water were a frequent occurrence in such operations and that the mud was a hazard present in this operation. Moreover, they pointed to testimony that the area was diligently cleaned during this project between every joint casing, arguing that Nobel cannot be held liable for Guidry's fall when Guidry was aware of the conditions and did not take steps to clean the mess. Guidry countered that, while there was always slippery mud during these operations, the amount was excessive here. He testified that other operations cleaned the mud between every joint, where on the Noble drill ship, the Noble employees would clean between every two or three joints, allowing the mud to accumulate. Strong or weak, the court found that this argument was obviously a fact issue for trial. Guidry also testified that Noble was in charge, or at least shared responsibility, for the casing operation. Further, Guidry pointed to his own testimony that the driller's speed determines the amount of mud that would accumulate on the rig floor; the faster he drilled, the more mud would build up. Because Guidry wasn't in control of the amount of mud or the cleaning of it, he argued, Noble was not immunized from liability. The court concluded that these issues demonstrated that a genuine dispute of fact existed regarding whether Nobel breached their duty of reasonable care. Nobel’s motion for summary judgement was denied [see May 2018 Longshore Update]. Noble then sought dismissal of the intervention of Liberty Insurance Corporation. The court denied the motion for summary judgment, finding that Noble had failed to address the issue and provide evidence to show that all of the explicit terms of the contract had been satisfied. In considering the motion, the court found that it was undisputed that Liberty issued a workers' compensation insurance policy to VAM. Separately, VAM and Shell executed a contract that provided that "All contractor's insurances shall be endorsed to provide that underwriters waive any rights of recourse, including in particular, subrogation rights against other contractor group to the extent of the obligations assumed by contractor herein." The court found that the defendants fell within the definition of "other contractor group" in the contract. Noble moved for reconsideration of the court’s order, in which the court denied its motion for summary judgment seeking dismissal of Liberty Insurance Corporation's intervention, asserting that their reply memo did address the fact that Liberty's waiver of subrogation was qualified by a provision in the Shell/VAM contract. In particular, the defendants point to Section IV of their reply memo, entitled "A Waiver of a Right to Enforce is Not Indemnification and LOIA Does Not Apply." the court pointed out that, while it may not have included an explicit discussion of that section of Noble’s reply memo in its order, the court did not overlook the section. Noble’s attempt to provide an alternative meaning of the clause conditioning Liberty's waiver on VAM assuming obligations that would permit the Court to find the waiver effective despite no contractual provisions assuming obligations was unpersuasive. Noble’s papers, considered for a second time, did not support a finding that the qualifying language lacks meaning. Noble’s motion for reconsideration was denied. (USDC EDLA, September 18, 2018) 2018 U.S. Dist. LEXIS 158915
COURT AGREES TO TREAT CLAIMANT AS THE PLAINTIFF IN DJ ACTION (CONT.)
ALLIANCE MARINE SERVICES, LP V. YOUMAN
Gary Youman was allegedly injured while employed by Alliance Marine Services, LP as a Jones Act seaman aboard a vessel owned and operated by SBM Stones Operations, LLC. Youman first sued AMS and SBM alleging Jones Act and general maritime law claims in October 2016. Four days later, he dismissed the lawsuit without prejudice. Youman then sued the same defendants in state court. When SBM prevailed on its motion to dismiss for improper venue, Youman moved to stay the state court action due to the possibility of incomplete relief in the state court proceeding. The stay was granted. Meanwhile, AMS filed its declaratory judgment action in federal court, seeking a declaration that AMS was not liable for Youman's accident and did not owe Youman maintenance and cure. Youman answered, counter-claimed, alleging Jones Act negligence and maintenance and cure claims, and then filed a third-party complaint against SBM alleging the same maritime claims he previously advanced. After the court issued its scheduling order in the federal case, AMS moved to amend the scheduling order, arguing that although it was a declaratory judgment action plaintiff, AMS requested that it be considered a "defendant" and Youman the "plaintiff" for the purposes of the scheduling order's deadlines for exchanging expert reports. Requiring Youman to submit his expert report first, as if he was the plaintiff, AMS contended, comported with the substantive reality of the lawsuit in which Youman is the only party seeking money damages for personal injuries he says were caused by AMS and SBM. Moreover, AMS contended, it and SBM would jointly retain certain experts related to Youman's damages, including an IME physician and economist, but they will only offer a vocational rehabilitation expert and life care planner, if necessary, to rebut whatever experts Youman proffers. Finally, the present procedural posture of the case called for different expert submission deadlines for AMS and SBM, despite their joint defense plan regarding expert reports and despite the fact that both are defending money damage claims by Youman; altering the scheduling order would align their deadlines for expert reports, which will be jointly submitted to defend Youman's substantive claims. Under the circumstances, the court was persuaded that good cause existed to amend the scheduling order to direct that Youman shall submit any expert reports by the plaintiff's deadline, and AMS and SBM shall submit any expert reports by the defendant's deadline. AMS's motion to amend the scheduling order was granted. The scheduling order was amended to direct that Youman must submit to AMS/SBM any expert reports by the "plaintiff's" deadline, and AMS/SBM must submit to Youman any expert reports by "defendant's" deadline [see April 2018 Longshore Update]. During the discovery process, AMS learned that two years before the alleged accident, Youman was taken by ambulance to a behavioral center, where he received medical treatment and was diagnosed with a major depressive order. The discharge diagnosis also noted that Youman suffered from panic disorder with agoraphobia, alcohol abuse, and interpersonal stressors, financial stressors, and a limited social support system. AMS filed a motion to compel an independent psychiatric examination under FRCP Rule 35, which the magistrate judge granted. Youman filed a motion to assert objection to the magistrate's order granting AMS' motion to compel, on the grounds that the magistrate's order granting AMS's motion to compel a psychiatric evaluation constituted clear error and was an abuse of discretion. Youman contended that AMS had failed to show good cause, given that a psychiatric examination, conducted over four years after his treatment for depression, would not be of assistance to the court. He adds that at the time of the alleged accident he was not seeking medical treatment for mental health issues, and that his case was therefore distinguishable from the facts in Smith v. Diamond Offshore Company, cited by the magistrate judge. AMS countered that it was uncontested that Youman's mental health was in controversy, and that recent mental health treatment and diagnoses of major depressive disorder and panic disorder with agoraphobia satisfy the good cause requirement such that the magistrate did not err in granting AMS' motion to compel. The court agreed, finding that AMS had demonstrated good cause by offering specific facts that show the need for the information sought and lack of means for obtaining it elsewhere. Youman had failed to demonstrate that the magistrate erred in granting AMS' motion to compel an independent psychiatric examination. The magistrate was not unreasonable to find that, although Youman was not seeking medical treatment at the time of the accident, thus distinguishing Youman’s case from Smith, the legal test was clear and good cause was shown. Youman’s motion was denied. (USDC EDLA, September 19, 2018) 2018 U.S. Dist. LEXIS 159918
UNSEAWORTHINESS AND ZONE OF DANGER CLAIMS DISMISSED (CONT.)
IN RE: TK BOAT RENTALS, LLC
This consolidated action arose out of a boat collision. Tracy Edwards, Charles Siria, Justin McCarthy, Harrell, Beck, and Beck's minor son, allegedly entered into an agreement with Troy Wetzel and Extreme Fishing to charter a vessel for a fishing trip. According to plaintiffs, Wetzel or someone acting on his behalf then entered into an agreement with Chase St. Clair to use one of St. Clair's vessels for the fishing trip. During the fishing trip, the fishing vessel owned by St. Clair and operated by Andre Boudreau, collided with a vessel owned by TK Boat Rentals, while crossing the Mississippi River. As a result of the accident, Beck and his minor son each allegedly suffered physical injuries, including facial fractures. Edwards also allegedly sustained physical injuries. All six passengers asserted that they suffered mental anguish and emotional distress because of the collision. The owners of both vessels each filed limitation of liability actions relating to the collision. The six passengers filed claims in these limitation actions and also filed a separate suit against multiple defendants, including Wetzel and Extreme Fishing. The two limitation actions and the passengers' suit for damages were consolidated in this action. Wetzel and Extreme Fishing moved for summary judgment as to all plaintiffs' claims for unseaworthiness, and as to Siria's and Edwards's negligence claims. Extreme Fishing and Wetzel argued that they were entitled summary judgment as to plaintiffs' unseaworthiness claims because passengers are not owed a duty of seaworthiness under general maritime law. Plaintiffs acknowledged that they were not owed a duty of seaworthiness, but argued that the seaworthiness of the vessel was relevant to whether defendants failed to exercise reasonable care. Because plaintiffs were not owed a duty of seaworthiness under general maritime law, the court found that defendants were entitled summary judgment on this issue. The court dismissed plaintiffs' claims to the extent they asserted a violation of a duty of seaworthiness. The court noted that its order would not prevent plaintiffs from arguing that defendants failed to exercise reasonable care with regard to the condition of the vessels. Extreme Fishing and Wetzel also argued that they were entitled summary judgment with regard to Siria's negligence claims because he had not suffered any actual injuries. Siria argued that he can recover for emotional distress under general maritime law because he was within the zone of danger of the collision. Siria testified that, in the moments before the collision, he knew that the boats were going to hit and chose just to hold on for dear life. The court assumed without deciding that the zone of danger rule was applicable to Siria's claim, and that Siria was within the zone of danger of the collision. But the zone of danger rule is merely a threshold requirement to determine whether a plaintiff is eligible to recover for emotional injuries. The court noted that Siria must also demonstrate that he suffered actual injuries. The court found that Siria failed to show a genuine issue of disputed fact as to his injuries. In his deposition, Siria acknowledged that he did not suffer any personal injuries as a result of the collision, that he has not and does not plan to seek medical or psychological treatment, and that he cannot identify anything that he could do before the accident that he can no longer do. The court found that the statements in Siria's deposition were too vague and conclusory to demonstrate an emotional injury. Siria's conclusory statement in an affidavit that he had suffered emotionally as a result of this casualty was unsupported by the record. Therefore, the court dismissed Siria's negligence claims. Extreme Fishing and Wetzel argued that Edwards'http://longshoreupdate.blogspot.com/2018/04/negligence claims must also be dismissed because Edwards was not injured as a result of the accident. Like Siria, Edwards argues that he was in the zone of danger of the collision. But Edwards similarly failed to demonstrate that he suffered any actual injuries. Accordingly, Edwards’ negligence claims were also dismissed [see April 2018 Longshore Update]. On appeal, in a short per curiam opinion, the appellate court noted that it had carefully reviewed the case in light of the briefs, district court ruling, and the record. Having done so, it found no reversible error of fact or law and affirmed for the reasons articulated by the district court. (5th Cir, September 26, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 27488
COURT ORDERS HEFTY MAINTENANCE RATE TO DIVER/SEAMAN
UNITED STATE EX REL. ZUGSBERGER V. T L PETERSON, INC., ET AL.
Matthew Zugsberger’s general maritime law claims for maintenance and cure arose from injuries he allegedly sustained while employed by Galindo Construction Company, Inc. and Don Ron Galindo as a commercial diver. Galindo Construction worked as a subcontractor on a National Park Service project. Galindo Construction subcontracted through T.L. Peterson to remove a collection of oyster racks from the water. Zugsberger performed the vast majority of his work diving off a vessel which was owned and/or operated by Galindo Construction. As a result of his diving activities, Zugsberger allegedly developed progressive erythema, progressing to blistering and ultimately desquamation of all exposed skin to include chiefly trunk, back, extensor and flexor surfaces of bilateral upper extremity after skin exposure to water at a dive site. Zugsberger was not wearing full dive gear or protective hazmat gear at the time of exposure. Zugsberger filed a motion for partial summary judgment for instatement of maintenance and cure, payment of past maintenance and cure, and to set the maintenance rate. Despite defendants protestations that the motion was premature, the court noted that Zugsberger need not show that there are no disputes of material fact that he was injured exactly as claimed, the extent thereof, or even causation. The only issue to be decided was whether Zugsberger was injured during his employment for the purposes of the Jones Act, and, if so, the amount of maintenance and cure to which he was entitled. The court initially found that the Galindo Construction vessel was in a navigable waterway, and that Zugsberger qualified as a seaman under the Jones Act. Zugsberger’s declaration and his physician’s assessment were sufficient to establish that he sustained some injury for the purposes of the maintenance and cure claim only. Accordingly, the court found that Zugsberger sustained an injury in the service of the ship. There was no dispute that Zugsberger had been incurring living and medical expenses since his injury. Zugsberger claimed that his actual expenses averaged $37.26 per day while residing at his residence located at Upper Lake, California and $60.59 per day while residing in Sacramento, California, and that he incurred a total of $32,000 for past treatment. In light of the foregoing, the court granted Zugsberger’s motion for partial summary judgment, and ordered Galindo Construction to pay all cure incurred by Zugsberger during or since his employment with Galindo Construction and past maintenance owed to Zugsberger in the total amount of $33,476.86. Finally, the court ordered Galindo Construction to pay Zugsberger maintenance at the rate of $53.33 per day on an ongoing basis going forward until Zugsberger reaches maximum cure for his injures and authorize on an ongoing basis all reasonable cure incurred by Zugsberger until Zugsberger reaches maximum cure for his injuries. (USDC NDCA, September 28, 2018) 2018 U.S. Dist. LEXIS 168446
COURT RESOLVES A DISCOVERY DISPUTE
HARRINGTON V. BLUE WATER FISHERIES, INC.
Alfred Harrington commenced this action under the Jones Act, seeking to recover damages for injuries he allegedly sustained during an incident while he was working as a member of the crew of a commercial fishing vessel owned by Blue Water Fisheries, Inc. A discovery dispute arose when Harrington requested that Blue Water produce the transcript of the recorded statement of a witness. Blue Water contended the statement, which was obtained by a representative of its liability insurer, is protected from discovery by the work product doctrine. Blue Water contended its liability insurance provider obtained the statement in anticipation of litigation. However, the court pointed out that Blue Water, which has the burden of demonstrating the applicability of the privilege, had failed to offer any evidence to suggest that the insurance company's efforts to obtain the statement were in anticipation of litigation, as distinguished from the company's regular business practice. To the contrary, insofar as the parties' submissions reveal the statement was obtained approximately one month after the incident, evidently before the involvement of counsel for Harrington, and nearly three years before this action was commenced, the record suggested the statement was obtained as part of the company's ordinary business practice. Based on the foregoing analysis, the court ordered Blue water to produce in discovery to Harrington the recorded statement of the witness. (USDC DME, September 14, 2018) 2018 U.S. Dist. LEXIS 156829
FULL PULL WITHOUT WARNING COULD CONSTITUTE NEGLIGENCE
BENO V. MURRAY AMERICAN RIVER TOWING, INC., ET AL.
Brian Beno was a deckhand working for Murray American River Towing, Inc. when he allegedly injured his arm, while performing duties during the navigation of a cut of barges through a lock, which was operated by the Army Corp of Engineers, an agent of the United States. Beno filed suit against defendants Murray American and the United States of America, pursuant to the Jones Act, general maritime law, and the Suits in Admiralty Act. The United States moved for summary judgment, arguing that judgment as a matter of law in its favor was warranted even assuming there was a full pull. It points out that there are times when a full pull is necessary and therefore a full pull is not in and of itself evidence of negligence, because competent crew members are responsible for safely checking and stopping a cut of barges regardless whether it is a partial pull or full pull, the length of the pull does not matter; and the evidence of record is sufficient to establish that regardless of the length of the pull, there is a negligible difference in the momentum of a cut of barges at the point when the checking process begins and the momentum of the cut would not have affected the crewmembers' ability to check and stop the barge. The United States contended that if on the date of Beno’s alleged injury, the momentum of the cut of barges actually experienced by the crewmembers was greater than expected, causing them to expend more effort to check and stop the cut, the greater momentum was due to the mass of the cut of barges, not the length over which the haulage mule pulled the cut. Therefore, the United States argued that the injury that occurred to Beno is due either to the negligence of the crew members or the failure of Murry American to adequately train the crew members. Viewing the evidence in a light most favorable to the non-moving party, the court found that a reasonable fact finder could conclude that a partial pull was all that was required on the date of Beno’s alleged injury. A partial pull is safer and an unexpected full pull occurred. Under these circumstances a reasonable fact finder could determine that the Army Corps lockman conduct in performing a full pull without advance warning to the crew members was negligent because his conduct deprived Beno of an opportunity to prepare for a more difficult checking and stopping process. At a minimum a warning could have allowed crew members to confer and confirm with each other that they would have to begin the checking process soon after release from the haulage mule and at a time when momentum would not have dissipated as much as would have occurred with a partial pull. The court held that the United States failed to establish as a matter of law that the Army Corps lockman did not breach a duty owed to Beno, who had presented evidence from which a fact finder could reasonably conclude that the Army Corps conduct in performing a full pull was negligent under the circumstances. Whether a full pull occurred and if so whether it amounted to negligence must be presented to a fact finder. For the foregoing reasons, the United States' motion for summary judgment was denied. (USDC WDPA, September 21, 2018) 2018 U.S. Dist. LEXIS 161347
Quotes of the Month . . ."A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate."-- Thomas Jefferson
"Our obligations to our country never cease but with our lives." -- John Adams
“If we could read the secret history of our enemies, we would find in each man's life a sorrow and suffering enough to disarm all hostility." -- Henry Wadsworth Longfellow
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