March 2019
Notes From Your Updater: On February 6, 2019, a federal complaint was filed in the Eastern District of Louisiana concerning a LHWCA §8(I) settlement submitted and approved by an ALJ back in June of 2015. The Complaint speaks for itself, and the allegations relate to fraud and forgery wherein it was discovered years later the claimant was dead at the time the §8(I) was allegedly signed and notarized by the claimant, with settlement funds paid to the claimant and signed for by the claimant approximately one month after he was dead. It will be interesting to see how this unique case progresses. My thanks to Frank Towers, of Blue Williams, LLP, Metairie, LA, for sharing the Complaint with me.
On January 30, 2019, a petition for certiorari was filed with the U.S. Supreme Court in the case of Davis, et al. v. Valsamis, Inc., Docket No. 18-1002. The question presented for review is, “Whether under th[e] Court's holdings in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) (limitation clauses that are contained within form passage tickets are "subject to judicial scrutiny for fundamental fairness"), and The MAJESTIC, 166 U.S. 375 (1897) (passengers are not bound by a limitation of liability that was printed on the back of a passenger ticket where the ticket's front did not explicitly refer to the limitation provision), a passenger ticket for a holiday cruise fairly communicated to cruise ship passengers that they needed to provide pre-suit written notice of their claim to the party being sued (Respondent) rather than to the cruise line itself (Carnival), when the ticket explicitly said that Carnival must receive it. The decision below drew upon three separate parts of the ticket and concluded that, if taken together, they communicated that a requirement that Respondent, not Carnival, receive the notice. The petition for certiorari was denied on February 25, 2019.
On February 6, 2019, Resident Commissioner Gonzalez-Colon (R-PR) introduced a bill (H.R. 1014) to amend the Outer Continental Shelf Lands Act to apply to territories of the United States, to establish offshore wind lease sale requirements, to provide dedicated funding for coral reef conservation, and for other purposes.
On February 19, 2019, the U.S. Supreme Court granted the petition for certiorari in the case of County of Maui, HI v. Hawaii Wildlife Fund, et al., Docket No. 18-260. The question presented to the court is, “Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a non-point source, such as groundwater.”
On February 1, 2019, the Solicitor (oops, I mean the Director) filed a brief in the case of Zumwalt v. National Steel & Shipbuilding Company, et al. Case No. 18-72257, currently pending before the Ninth Circuit Court of Appeal. The brief urged the court to deny the petition for review and affirm the Board’s holing that the Claimant’s motion for reconsideration of the ALJ’s attorney-fee decision was untimely.
On January 31, 2019, the Solicitor (oops, I mean the Director) filed a brief in the case of Bussanich v. Ports America, et al. Case No. 18-71189, currently pending before the Ninth Circuit Court of Appeal. The brief addressed the basic tenets of administrative law, which required petitioner to raise his Appointments Clause challenge before the agency. His proffered reasons for not doing so were held meritless. The court was urged to hold that petitioner forfeited his right to challenge the ALJ’s authority under the Appointments Clause.
LHWCA CLAIMANT’S AGGRAVATION CLAIM REJECTION AFFIRMED ON APPEAL
BOUDREAUX V. DIRECTOR, OWCP, ET AL. [WILKINSON TECHNOLOGIES]
Darrell Boudreaux was employed as a rigger for Wilkinson Technologies. He filled out a medical history questionnaire and indicated that he did not have any long-term health problems or physical conditions. He did not respond to the question on the form inquiring as to whether he had ever had surgery. Boudreaux was working on a vessel and was riding in a personnel basket that was being lifted by a crane over the vessel when he fell two or three feet out of the basket onto the vessel's platform. Witnesses reported that Boudreaux immediately stood up and walked away after the fall. He then filled out an accident report. He was seen by medical staff and complained of knee and shoulder pain. He disclosed at that time that he previously had knee surgery. He was cleared to return to work. Boudreaux was given a drug test following his fall and tested positive for amphetamines and cocaine. Because he did not return to work after the incident, he was terminated. According to Boudreaux, when he fell out of the personnel basket, he sustained a knee injury that aggravated his preexisting knee condition. He now claims he is in need of a total knee replacement. Boudreaux filed a claim for benefits under the LHWCA against Wilkinson and the case was referred to the ALJ for hearings. The ALJ issued a ruling denying Boudreaux's claims for benefits, explaining that Boudreaux failed to carry his burden of proving by a preponderance of the evidence that the fall aggravated his preexisting knee injury. The ALJ affirmed his prior decision on reconsideration. Boudreaux appealed to the Board who affirmed the ALJ's Decision and Order. Boudreaux then filed this petition for review. The appellate court observed that, in the proceedings below, the ALJ acknowledged, and neither party disputed, that Boudreaux had a significant pre-existing condition in his right knee. The ALJ then reasoned that, under the Act, Boudreaux would have to show that his preexisting knee condition was aggravated by the fall incident. The ALJ concluded that the clear weight of the evidence demonstrated that Boudreaux did suffer a fall in or from the personnel basket. On review, the Board held that the ALJ properly applied the Act's burden-shifting framework and relied on substantial evidence when making his findings. The appellate court agreed that the ALJ's finding was rational that Boudreaux failed to carry his burden of establishing that the alleged fall aggravated his underlying knee condition given the extensive medical testimony and evidence to the contrary presented at the hearing. The Board was also warranted in concluding that the ALJ's credibility findings were rational given Boudreaux's failure to provide an accurate and complete medical history to the testifying physicians and his lack of truthfulness about his drug use. The decision and order of the Benefits Review Board, denying Boudreaux’s claim, was affirmed. (5th Cir, February 26, 2019, UNPUBLISHED) 2019 U.S. App. LEXIS 5683
MILAZZO AWARDS $3.3 MILLION IN SECTION 905(B) CASE
BARRIOS ET AL. V. CENTAUR LLC ET AL.
Devin Barrios and his wife, Megan Barrios, brought claims for damages he allegedly sustained in an accident that occurred while he was working a construction job for Centaur, LLC. Plaintiffs brought claims under the Jones Act and general maritime law against Centaur, as well as claims for negligence under the Longshore and Harbor Worker's Compensation Act against Centaur and River Ventures, LLC. Barrios had accused River Ventures and Centaur of causing a portable generator to fall on top of his head shortly he after he went overboard while attempting to transfer the generator from a River Ventures-owned crew boat to a barge that was being used as part of a containment wall construction project near a dock facility. Following a five-day bench trial, the court initially found that Barrios was not a seaman, as he spent insufficient time in service of the vessel to attain seaman status. The court next found vessel negligence against River Ventures, under 33 U.S.C. § 905(b) of the LHWCA, as the vessel captain breached his duty to Barrios in failing to provide for a safe transfer. Specifically, the captain failed to moor the crew boat to the barge during the transfer and hold the crew boat steady to the barge during the transfer. The captain’s negligence caused the crew boat to separate from the barge during the transfer. The captain’s negligence was the sole proximate cause of the injuries sustained by Barrios. Additionally, given the fact that the owner of River Ventures was aware of the captain’s unsafe custom of allowing equipment to be offloaded from the crew boat without first tying up the vessel and the owner failed to institute a policy regarding the safe transfer of equipment from the crew boat, the court held that River Ventures was not entitled to limitation of liability. The court also found that plaintiffs had not carried their burden to show that Centaur was negligent for failing to provide a crane operator to move the portable generator. Failure to use a crane to move the portable generator was not a cause in fact of the accident in question. The court awarded past and future medical expenses of approximately $875,000, past and future lost earnings of about $1.2 million, past and future non-economic damages of $975,000, and $250,000 to Barrios’ wife Megan Barrios for loss of consortium. The court held that plaintiffs were entitled to judgment against River Ventures, LLC on their 33 U.S.C. §905(b) claim in the amount of $3,308,094.55. Centaur, LLC was entitled to judgment in its favor, dismissing with prejudice plaintiff's claims against it. (USDC EDLA, February 1, 2019) 2019 U.S. Dist. LEXIS 16990
COURT FINDS PUNITIVE DAMAGES ARE AVAILABLE UNDER THE LHWCA
IN RE RODI MARINE LLC
This matter arises out of a maritime allision between a Rodi Marine, LLC vessel, chartered by Fieldwood Energy, LLC, and a fixed platform. Rodi Marine, as the owner and operator of the offending vessel, filed a complaint for exoneration from or limitation of liability. Subsequently, Antonio Smith and Lionel Every filed claims against Rodi, alleging they suffered injuries as a result of Rodi's negligence and the vessel’s unseaworthiness, seeking general, compensatory, and punitive damages. Rodi moved to dismiss both claimants’ claim for punitive damages, arguing §905(b) of the Longshore and Harbor Workers' Compensation Act governs the claims and that §905(b) does not allow punitive damages. Claimants argued they brought claims under general maritime law, not under the LHWCA, and that general maritime law allows for punitive damages. Claimants also argued that, should the Court determine the provisions of the LHWCA apply, the LHWCA allows recovery of punitive damages in cases involving gross negligence.
Claimants both conceded they were covered workers under the LHWCA. As a result, the court found claimants' claims were governed by §905(b) of the LHWCA. Accordingly, the issue before the Court was whether punitive damages are recoverable under the LHWCA. The court began its analysis by noting that the Fifth Circuit has not determined whether punitive damages are awardable in an action brought by a longshoreman or covered offshore worker under the LHWCA. However, the Fifth Circuit has permitted recovery of non-pecuniary damages in actions brought under the LHWCA and has noted that the LHWCA does not explicitly limit damages recoverable to pecuniary damages, as do the DOHSA and the Jones Act. Other district courts within the Fifth Circuit have found punitive damages are recoverable in actions brought under the LHWCA. A federal district court in the Western District of Washington has likewise found that punitive damages may be recovered under §905(b), reasoning that Congress did not abrogate the availability of punitive damages in enacting the LHWCA. The court found these cases persuasive and agreed punitive damages may be awarded under the LHWCA. To recover punitive damages, claimants must demonstrate the defendant engaged in behavior that is more than merely negligent; rather, the court looks for gross negligence, reckless or callous disregard for the rights of others or actual malice or criminal indifference. In their answers and claims, claimants asserted their injuries were the result of negligence and gross negligence, but did not provide factual allegations to support their claim for punitive damages. Claimants' memoranda in opposition to the instant motion contained factual allegations not included in their original answers and claims, which the court construed as requests for leave to file an amended claim. Antonio Smith and Lionel Every were given leave to file amended Answers and Claims to include factual allegations to support their claims for punitive damages by a date certain. Rodie’s motion to dismiss was denied without prejudice. (USDC EDLA, February 22, 2019) 2019 U.S. Dist. LEXIS 28382
PRO SE CLAIMANTS ARE PITA’S
CAUBARREAUX V. SIERRA ENGINEERING LLC ET AL.
Brent J. Caubarreaux, proceeding pro se, filed a complaint seeking to establish claim for permanent disability, pain and suffering, punitive damages and financial losses, invoking the court's jurisdiction pursuant to the LHWCA; and further alleged that the Jones Act, specifically 46 U.S.C. §30104, allowed injured workers to make claims and obtain damages from employers for negligence. Caubarreaux requested a trial by jury. The multiple defendants named in the original and amended complaints, acknowledged that while it was undisputed that Caubarreaux was injured in the course and scope of his employment while working for Sierra Engineering, LLC, they were seeking dismissal of both the original and amended complaints, pursuant to FRCP12(b)(1), (b)(5), and/or (b)(6), arguing that the court lacked jurisdiction, because the plaintiff does not meet the requirements for seaman status under the Jones Act. Second, the defendants contend that the court lacked jurisdiction because the Caubarreaux had already asserted a cause of action under the LHWCA, continued to receive benefits pursuant thereto, and LHWCA and Jones Act are mutually exclusive remedies. Third, the defendants asserted that Caubarreaux’s claim under the Jones Act and/or general maritime law had prescribed. Fourth, the defendants allege that the Caubarreaux had failed to effect proper service on the defendants and had no right to a direct action against Zurich. Fifth, and alternatively, the defendants argued that Caubarreaux had failed to plead sufficient facts necessary to state a claim against the defendants. Caubarreaux opposed the motion. The court noted that it was undisputed that the case arose out of Caubarreaux’s alleged work-related injury for which he had been receiving payments under the LHWCA. An invocation of seaman status and entitlement to Jones Act benefits is inconsistent with a claim for LHWCA benefits. Despite citing the correct Supreme Court law with respect to seaman status, Caubarreaux had failed to alleges facts which might support a finding of seaman status necessary to proceed under the Jones Act. No fact even suggested that Caubarreaux was a member of a ship's crew or that he had the requisite employment-related connection to a vessel in navigation, required for entitlement to Jones Act benefits. Given that Caubarreaux bore the burden of proving jurisdiction in order to survive a motion to dismiss, the court found that he had failed to establish that his case involved a claim arising under the Jones Act. For the foregoing reasons, the court granted the motion to dismiss for lack of subject matter jurisdiction, and dismissed the case without prejudice. (USDC WDLA, December 18, 2018) 2018 U.S. Dist. LEXIS 221296
ALLEGED TORTFEASOR CLAIMS BORROWED SERVANT STATUS UNDER LHWCA
RAICEVIC V. WOOD GROUP PSN, INC., ET AL.
Milorad Raicevic alleged that he was injured when he slipped and fell while working as a production technician on a fixed offshore drilling platform owned by Fieldwood Energy, LLC. At the time of his injury, Raicevic was working on Fieldwood's platform pursuant to a master services contract between his employer, Waukesha Pearce, and Fieldwood. Fieldwood, though not Raicevic's nominal employer, argued that Raicevic was its "borrowed employee" when he was hurt and that, as a result, Raicevic's tort lawsuit against Fieldwood is barred under the exclusive-remedy provisions of the Longshore and Harbor Workers' Compensation Act. The case was tried to a jury, which found both Raicevic and Fieldwood negligent. Before the case was submitted to the jury, Fieldwood moved for judgment in its favor as a matter of law under FRCP 50. The court requested a finding from the jury on each of the nine factors used by courts in the Fifth Circuit to determine whether a person should be considered a borrowed employee under the LHWCA. In light of those findings, the court concluded that Raicevic was Fieldwood’s borrowed servant. Since it secured payment of compensation within the meaning of the LHWCA, Fieldwood may invoke the borrowed-employee defense and the LHWCA's exclusive-remedy provisions. The court therefore held, in accordance with the jury's findings and the court's own finding on LHWCA insurance coverage, that Fieldwood may invoke the exclusive-remedy provisions of the LHWCA to bar Raicevic's tort action against it. Since the jury found that Fieldwood's co-defendants were not negligent, the court rendered judgment for the defendants. Fieldwood's motion for judgment in its favor as a matter of law under FRCP 50 was denied as moot. (USDC SDTX, February 14, 2019) 2019 U.S. Dist. LEXIS 24114
QUESTIONS OF FACT PRECLUDE BORROWED SERVANT FINDING
MAYET V. ENERGY XXI GIGS SERVICES, LLC., ET AL.
This matter arose out of injuries Daniel Mayet allegedly sustained on a mineral exploration and production platform owned by Wood Group PSN, Inc. Wood Group employees were using the platform's crane to receive cargo boxes from a vessel. While attempting to place a stinger on the platform's stinger rack, Mayet alleged that he sustained a hernia and injury to his back requiring surgery. Mayet asserted that the location and configuration of the stinger rack and configuration of platform equipment caused his injuries. Mayet filed his complaint, bringing claims against multiple defendants under Louisiana State Law, general maritime law, and the OCSLA. Defendants filed a motion for summary judgment, arguing that Mayet was a borrowed employee at the time of his alleged accident, and therefore, he had no tort remedy against defendants, and summary judgment in favor of defendants was appropriate. Defendants argued that federal jurisdiction in this matter was based on the OCSLA, which adopts the law of the adjacent state (Louisiana) as surrogate federal law. Defendants went on to argue if Mayet is the borrowed servant or employee of defendants, then he is covered by the LHWCA, entitling him to worker's compensation under the Act, which is the exclusive remedy for an employee against his employer, because the LHWCA bars all common law tort actions against the employer. In response, Mayet argued that he should not be considered a "borrowed servant" of defendants and that summary judgment should be denied. The parties agreed that Mayet was injured on the Outer Continental Shelf. Section 1333(b) of the OCSLA incorporates and extends the benefits of the LHWCA to employees injured on fixed platforms on the Outer Continental Shelf. Although the parties disputed whether Mayet was a borrowed employee at the time of his injury, they agree that whether an employee is a borrowed employee constituted an issue of law for the court to decide by applying the nine-factor test set forth in Ruiz v. Shell Oil Co.After evaluating the Ruiz factors and the contractual provision between the parties, the court concluded that there was conflicting evidence regarding whether the parties' conduct modified the contract provision purporting to prohibit borrowed employee status and non-written modification. Given the disputes of fact regarding the control the parties exercised and the force of the contract provision at issue, the court denied summary judgment. Accordingly, the factual disputes were left to be resolved by the jury as fact-finder at trial. (USDC EDLA, February 11, 2019) 2019 U.S. Dist. LEXIS 21346
And on the Admiralty front . . .
ARBITRAL AWARD IN A SEAMAN PERSONAL INJURY MATTER IS INVALID
CASTRO V. TRI MARINE FISH COMPANY LLC, ET AL.
Michael Castro moved from the Philippines, where he retained citizenship, to American Samoa to live with his fiancé, and her family. Several months later, Castro was working in a Tri Marine Fish Company, LLC warehouse when Tri Marine offered him a crew position aboard their fishing vessel. He accepted a position as a deck hand. The day before departing, Castro visited Tri Marine's offices to sign employment paperwork. Castro and Tri Marine disputed what was signed that day. Tri Marine contends that Castro signed his employment agreement, which is consistent with the date typed on the agreement itself. Castro insists that before departing he signed only a half sheet of paper with a few sentences on it including a pay rate of $3.00 per ton of fish caught, the name of the vessel, and a signature line, and that he did not sign the employment agreement until he appeared before an arbitrator. The employment agreement contained a mandatory arbitration provision applicable to all disputes or claims arising out of Castro's employment aboard the vessel. It required arbitration to occur in and subject to the procedural rules of American Samoa. Approximately two weeks into the fishing trip, Castro fell down a set of stairs and allegedly injured his knee. Castro requested that Tri Marine return him to American Samoa so he could travel to Hawaii for medical care, but Tri Marine instead arranged for Castro's transport to and medical care in the Philippines. Castro underwent surgery for a torn anterior cruciate ligament and a torn meniscus, followed by treatment and physical therapy. Tri Marine paid Castro's medical expenses and monthly maintenance. Several months into Castro's rehabilitation, Castro approached a Tri Marine agent in the Philippines, and negotiated a settlement of his disability claims. In exchange for an advance of $5,000, Castro reiterated his assent to the employment agreement's arbitration and choice of law clauses. Shortly after, Castro agreed in principle to release fully his claims in exchange for an additional $16,160.After Tri Marine prepared the settlement paperwork, the agreement was submitted to an arbitrator in the form of a joint motion to dismiss pursuant to the parties' settlement, accompanied by the release paperwork that Castro had already signed. The resulting arbitration order acknowledges that it was the product of a "Walk In Settlement" and that the release had already been "duly signed by both parties" before meeting with the arbitrator. Later treatment revealed that Castro's initial surgery had failed to graft his anterior cruciate ligament or address his torn meniscus. Facing additional surgery to repair these mistakes, Castro sued Tri Marine in state court to recover the additional expenses. Invoking the New York Convention, Tri Marine removed the case to federal court and moved to confirm the order as a foreign arbitral award. The district court denied Castro's motion to remand, confirmed the order, and dismissed the case. Castro appealed and the appellate panel reversed in part and vacated in part the district court's order treating the order issued by the arbitrator in the Philippines as a foreign arbitral award and confirming the arbitrator's order under the New York Convention and the Convention Act. Looking to the essence of the arbitrator's order, the panel held that the order was not a foreign arbitral award because the parties had already agreed to settle their dispute, and so there was no outstanding dispute to arbitrate when they brought the matter to the arbitrator. In addition, the purported arbitration did not follow the parties' prior agreements to arbitrate, nor did it follow Philippine arbitral procedure. The panel remanded for the district court to assess jurisdiction under the Convention Act and, as appropriate, venue and any defenses to enforcement of the settlement. (9th Cir, February 27, 2019) 2019 U.S. App. LEXIS 5864
ANOTHER DEEPWATER HORIZON CASE PUT TO BED
IN RE: DEEPWATER HORIZON
In yet another Deepwater Horizon case, Jelp Barber and Johnny's Clams appealed the judgment of the district court dismissing their economic loss suits arising from the Deepwater Horizon oil spill. The district court dismissed the plaintiffs' claims after finding they had signed valid releases relinquishing their right to sue in exchange for final payments. Shortly after the spill, BP established the Gulf Coast Claims Facility (GCCF) to receive and pay claims arising from the spill. To obtain a final payment under the GCCF, the claimant had to sign a prospective release and covenant not to sue, waiving all rights against BP and other parties for claims arising from the oil spill. Jelp Barber and Johnny's Clams both received payments under the GCCF. Jelp Barber received a $40,000 Emergency Advance Payment, a $5,000 Interim Payment, and a $25,000 Full Review Final Payment. Johnny's Clams, Inc., received a $21,700 Interim Payment and a $25,000 Quick Payment Final. To receive their final payments, both plaintiffs signed releases. On appeal, plaintiffs argued that the district court converted BP's motion to dismiss into a motion for summary judgment by considering matters outside the pleadings, and the court's failure to provide the plaintiffs with notice or a reasonable opportunity to present evidence after the conversion was reversible error. The appellate court noted that formal notice from the court is not required when the court accepts for consideration on the motion matters outside the pleadings, as the introduction of such materials provides sufficient notice to the plaintiff that the court could treat the motion to dismiss as one for summary judgment. Here, the district court's PTO explicitly invited BP to file dispositive motions based on signed releases, which BP filed, along with the releases attached as exhibits. The releases were matters outside the pleadings. The court's request to submit the releases and BP's compliance with that request, therefore, put the plaintiffs on notice that the court was considering matters outside the pleadings and could treat the motion as one for summary judgment. Because the plaintiffs had a reasonable opportunity to present material opposing the motion, the district court did not err. Plaintiffs also argued the district court should have applied the "ward of admiralty" doctrine to their releases-which applies to "seamen" and places the burden on the defendant to show that a seaman's release was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights. Alternatively, the plaintiffs argued that the district court erred in finding the releases enforceable because they were signed under economic duress. Even assuming the plaintiffs qualified as seamen, case law did not support applying the Garrettstandard to a release of a seaman's pure economic-loss tort claim resulting from an oil spill and asserted against a non-employer, non-vessel owner, third-party. As for the economic duress argument, the district court found that plaintiffs' claims failed as a matter of law because they could not prove one of the elements of economic duress-that they had no reasonable alternative course of action other than signing the releases. The appellate court agreed with the district court and affirmed the district court’s judgment for essentially the reasons stated by that court. (5th Cir, February 18, 2019, UNPUBLISHED) 2019 U.S. App. LEXIS 4734
APPELLATE COURT AFFIRMS RUIZ ANALYSIS, BUT ALSO FINDS FACT QUESTION
MOSLEY, V. WOOD GROUP PSN, INC., ET AL.
Dwayne Mosley was allegedly injured while working on an oil and gas platform owned or operated by Fieldwood Energy LLC. Quality Production Services (QPS), who was not a party to the suit, had a Master Service Contract with Fieldwood to provide production personnel at Fieldwood's request. Mosley submitted his resume to QPS for consideration as a contract operator. QPS forwarded Mosley's resume to Fieldwood, who then selected Mosley to work as a contract operator on its platforms. Mosley became a payroll employee of QPS, and worked as a production manager on Fieldwood's platforms. Like QPS, Wood Group PSN, Inc. supplied production personnel to Fieldwood and entered into a Master Service Contract substantially similar to that between Fieldwood and QPS. Fieldwood hired Linear Controls, Inc. and Linear Controls Operating, Inc. (collectively, Linear), to disconnect and assist with moving a transformer on the platform. Mosley's alleged fall occurred the day after the transformer was moved. Mosley alleged that during Linear's preparation of the transformer for moving, or as a result of its being moved, the transformer's spigot became damaged and leaked a slippery fluid. The day before Mosley fell, Mosley used a crane to help move the transformer to a place where it could be loaded onto a boat. A wood Group employee noticed that the spigot had a leak so he placed a bucket underneath to catch any drippings, and attached a hose and air pressure pump to the transformer in order to drain the remaining fluid. Either as a result of the initial leak or from the use of the hose and pump, a mixture of hydraulic fluid and water ended up on the platform's deck. Mosley slipped and fell walking across the deck. Dwayne Mosley sued multiple defendants for negligence and gross negligence after he slipped and fell on an oil and gas platform off the coast of Louisiana. The district court employed the nine-factor test from Ruiz v. Shell Oil Co. to conclude that Mosley, and two Wood Group employees were Fieldwood's borrowed employees. Then, the court held that for Mosley's claims against Fieldwood and Wood Group, his exclusive remedy lay in the LHWCA, applicable by virtue of OCSLA. Because Mosley brought only negligence claims, the court granted summary judgment. The court further held that Linear could not be liable for negligence because the Wood Group employee’s negligence was a superseding cause of Mosley's injuries. The district court dismissed his claims against two defendants as barred under the Outer Continental Shelf Lands Act (OCSLA) and the Longshore and Harbor Workers' Compensation Act (LHWCA). The district court also granted summary judgment in favor of the defendants as to Mosley's remaining claims, concluding that causation had not been shown. Mosley appealed. The appellate court began its analysis by observing that, under the LHWCA, liability of an employer shall be exclusive and in place of all other liability of such employer to the employee, meaning that a covered employee's exclusive remedy against his employer in a negligence case is governed by the LHWCA. Fieldwood argued that Mosley was its borrowed employee and therefore, that his exclusive remedy against Fieldwood was under the LHWCA. Wood Group's argument is twofold. First, it contends that its two employees, who were on Wood Group's payroll, were Fieldwood's borrowed employees and therefore, their negligence cannot be attributed to Wood Group under a vicarious liability theory. Second, Wood Group contends that if Mosley, and its nominal employees were all Fieldwood's borrowed employees, Mosley could not assert a cause of action against his co-employees under the exclusive remedy provision in 33 U.S.C. §933(I). In his reply brief, Mosley argued that Wood Group and Fieldwood could both be liable as dual employers under Louisiana law. The appellate court rejected this argument, noting that issues raised for the first time in a reply brief were deemed waived. Mosley argues that the district court erred when it held Mosley and wood groups nominal employees were Fieldwood's borrowed employees. After reviewing the Ruiz factors, the appellate court found that seven of the nine factors weighed in favor of borrowed employee status, one was neutral (factor seven), and one involved an unresolved fact issue (factor three). The court pointed out that, even if it were to assume that factor three weighed in favor of Mosley, the summary judgment record established that Mosley, and the two Wood Group nominal employees were Fieldwood's borrowed employees. Accordingly, the district court did not err in holding that Mosley's claims against Fieldwood and Wood Group failed. Mosley also alleged that Linear was negligent both in failing to properly prepare the transformer for its move, and/or failing to give proper signals to the crane operator so as to allow the transformer to be damaged during transit and argued that the district court erred when it found the wood Group employee’s negligence to be an intervening, superseding cause of Mosley's injuries. The district court concluded that Mosley did not provide any evidence suggesting that there was oil on the deck prior to the Wood Group employee opening the spigot, and thus even if Linear Controls was negligent in causing the transformer to leak, Mosley would not have been injured without that employee’s intervening negligence. The appellate court disagreed, finding that a fact question existed as to whether the initial leak resulted in fluid on the deck and contributed to Mosley's injuries. Accordingly, the district court erred in granting summary judgment. The appellate court affirmed the district court's grant of summary judgment as to Fieldwood and Wood Group, and reversed and remanded as to Linear. (5th Cir, February 7, 2019, UNPUBLISHED) 2019 U.S. App. LEXIS 3803
APPELLATE COURT UPHOLDS SEAMAN’S SETTLEMENT
BRASSEAUX V. MONCLA MARINE OPERATIONS, LLC, ET AL
In this appellate case, in support of their motion for summary judgment seeking dismissal of claims by Jordain Michael Brasseaux, a Jones Act seaman, based on the res judicata effect of a settlement and release, Moncla Marine LLC, Moncla Marine Operations, LLC, Gulfport Energy Corporation, and Pro-T Company, Inc. submitted affidavits and the transcript of the settlement conference that included an extensive and comprehensive colloquy between plaintiff and the claims adjuster regarding Brasseaux’s understanding of his actions in executing the settlement. Notwithstanding a dissent, the appellate court held that defendant's evidence demonstrated there were no genuine issue of material fact that Brasseaux settled his claims freely and with full understanding of his rights, and the effects of his actions. The evidence Brasseaux submitted in opposition to the motion failed to create any genuine issues of material fact that would preclude summary judgment. A contrary finding would undermine confidence in the finality of any settlement agreement and deter employers from engaging in settlement negotiations. The trial court's judgment denying the motion for summary judgment was reversed and the motion for summary judgment filed by defendants was granted, dismissing the Brasseaux’s claims against Moncla Marine LLC, Moncla Marine Operations, LLC, Gulfport Energy Corporation, and Pro-T Company, Inc. (La. 1st App. Ct., February 4, 2019, UNPUBLISHED) 2019 La. App. LEXIS 161
APPELLATE COURT AFFIRMS FINDING THAT GAP WAS NOT OPEN AND OBVIOUS
JEFFERSON V. INTERNATIONAL MARINE, LLC
Appellate Court Opinion
Robert Jefferson filed a petition seeking damages from International Marine, LLC for injuries that he allegedly sustained as the result of an accident. At the time, Jefferson was employed by General Fabricators, Inc. and was being transported as a passenger on a supply vessel owned and operated by International from an offshore drilling platform to the living quarters platform. Jefferson alleged that he was standing on the deck of the vessel waiting for a personnel basket to be lowered from the platform to the deck of the vessel when he stepped back into a gap caused by a missing deck board, fell, and sustained injuries. In response, International maintained that Jefferson's alleged injuries from the accident were the result of his own fault and neglect, and that that the gap caused by the missing deck board was a readily apparent, open and obvious condition; thus, it was not liable for Jefferson's injuries. International subsequently filed a motion for summary judgment seeking the dismissal of Jefferson's claims against it on the basis that the gap caused by the missing deck board was open and obvious. Jefferson likewise filed a motion for partial summary judgment seeking a judgment in his favor on the issue of liability and/or comparative fault. Initially, the trial court denied both motions for summary judgment. Thereafter, the trial court rendered judgment in favor of Jefferson and against International, finding International totally at fault for causing the accident. International appealed the partial final judgment on the issue of liability in favor of the Jefferson, arguing that, based on the evidence, as well as the photographs taken of the cargo deck shortly after the accident occurred, Jefferson was not paying attention to where he was walking, that he was not exercising reasonable care for his own safety, and that the gap created by the missing deck board was readily observable, open, and obvious. Based on its review of the record, the appellate court found no error in the judgment of the trial court. International was obviously aware of the danger presented by the gap from the missing deck board in that they angled the adjacent deck boards in order to reduce or minimize the width of the gap. However, in doing so, this made the missing deck board less obvious to the ordinary viewer. Thus, the trial court's determination that the missing deck board was a dangerous condition under the circumstances, which was not open and obvious, and its conclusion that International was liable for Mr. Jefferson's injuries were not erroneous and were supported by the record. Accordingly, the judgment of the trial court was affirmed. (La. 1st App. Ct., February 25, 2019, UNPUBLISHED) 2019 La. App. Unpub. LEXIS 46
COURT GRANTS SEAMAN’S REQUEST TO STRIKE EMPLOYER’S JURY DEMAND
DUFRENE V. CASS MARINE GROUP, LLC
Joseph Dufrene, Jr. filed a complaint against Cass Marine Group, LLC, for injuries he allegedly sustained when a vessel owned by Cass Marine sank. Dufrene alleged that he initially demanded a jury trial and erroneously invoked diversity jurisdiction. After learning that the diversity allegation was in error because both Dufrene and Cass Marine were Louisiana parties, Dufrene filed an amended complaint the following day, invoking the court's jurisdiction pursuant to the Jones Act and general maritime law, as well as admiralty Rule 9(h). In that complaint, Dufrene specifically designated his claim as an admiralty claim under Rule 9(h) and designated the matter as a non-jury trial. Dufrene then moved to strike Cass Marine's jury demand, which Cass Marine failed to timely oppose. The court noted that Dufrene’s amended Complaint invoked Rule 9(h) and specifically withdrew Dufrene’s previous demand for a jury trial. This was done before Cass Marine was served with the original complaint and before Cass Marine filed its answer requesting a jury trial. Moreover, there was no evidence in the record to suggest that diversity jurisdiction existed. Thus, Cass Marine does not have a right to a jury trial in the present case. Dufrene’s motion to strike Cass Marine’s jury demand was granted.
COURT GRANTS SUMMARY JUDGMENT ON MCCORPENDEFENSE
DUKES V. CROSBY TUGS, LLC
This case arose from an accident that allegedly occurred while Joseph Dukes was employed by Crosby Tugs as a Jones Act seaman. Dukes allegedly injured his back and other areas of his body in an accident working aboard a Crosby vessel. Dukes was diagnosed with an L4-5 intervertebral disc extrusion. He underwent surgery but allegedly continued to suffer pain in his lower back and left leg after the procedure. As part of Dukes’ original employment application for his position at Crosby Tugs, he underwent a physical examination and filled out a medical history. In his medical history, Dukes stated that he had never suffered from a back injury and did not suffer from recurrent neck or back pain. But Dukes later testified that he sprained his back muscles in a parachuting accident while serving in the United States Army. He received two weeks of treatment and light duty restrictions for this injury. Years later, Dukes received a screening for acute medical care after complaining of low back pain. The medical notes indicate that Dukes suffered from "direct back trauma," and "recurrent back pain," and they indicate that the pain was in Dukes’ low back. Dukes also testified that he has visited a chiropractor fifteen times since the age of forty for low back pain. Crosby Tugs moved for summary judgment on a McCorpendefense to Dukes’ claim for maintenance and cure. The court found that Dukes intentionally concealed or misrepresented medical facts when he stated in his medical history that he had never suffered from a back injury or from recurrent back pain. Crosby Tugs asked a specific medical question on an application, and the inquiry was rationally related to the applicant's physical ability to perform his job duties, so the information was material for the purpose of the McCorpenanalysis. Dukes suffered an L4-5 disc herniation as a result of his accident, which is an injury to a disc in the lumbar spine. His recurring back pain documented in the medical history examination was also in his lumbar region, as were the chiropractic treatments he received for ten years before his employment with Crosby Tugs. The court concluded that Crosby Tugs had therefore shown a causal connection because Dukes undisclosed pain and injury were to the same region of plaintiff's back as his current herniation. Crosby Tugs’ motion for summary judgment on its McCorpen defense was granted. (USDC EDLA, February 15, 2019) 2019 U.S. Dist. LEXIS 24698
NO GOOD CAUSE SHOWN FOR A CONTINUANCE OF TRIAL DATE
GIROIR V. CENAC MARINE SERVICES, LLC
Ricky Giroir sued Cenac Marine Services, LLC, asserting claims under the Jones Act and the general maritime law, claiming that he sustained injuries while working aboard two Cenac vessels owned by his employer. The court issued a scheduling order, setting March 25, 2019 as the jury trial dates. In early December of 2018, the Giroir moved to continue the trial date and to extend the expert report and discovery deadlines, because he had undergone an additional back surgery. Cenac opposed the motion, denying that Giroir’s surgery was related to the alleged injuries he sustained while working for Cenac and urged the court that the cited discovery issues would be rectified in a matter of days. Th court granted the Giroir’s motion, in part, as to an extension of expert report deadlines, and denied the motion, in part, as to a continuance of the trial date and other pre-trial deadlines. In the meantime, Cenac filed two motions for summary judgment, seeking dismissal of Giroir’s claims for maintenance and cure, unseaworthiness, and Jones Act negligence. In turn, Giroir filed a second motion to continue the trial date and all discovery deadlines, as well as an initial motion to continue the submission date on the defendants' pending motions for summary judgment. Giroir also sought expedited consideration of his request for a continuance. It appeared to the court that the Giroir’s request to modify the scheduling order and to continue the submission date on the defendant's pending motions for summary judgment was based solely upon the failure of his counsel to timely begin preparing a response to Cenac’s motions. Therefore, the Court was not persuaded that Giroir was unable to comply with the existing submission date, or that "good cause" existed to justify a continuance of the trial date and discovery deadlines. Nonetheless, the court found that a brief continuance of the summary judgment submission date and the pre-trial conference date was appropriate; such a continuance would afford the plaintiff with additional time to respond to the Cenac’s pending dispositive motions without prejudicing the defendant. Accordingly, Giroir’s motion for expedited consideration was granted and the motion to continue was granted in part and denied in part. The submission date on the defendants' pending motions for summary was continued to March 6, 2019. (USDC EDLA, February 6, 2019) 2019 U.S. Dist. LEXIS 19676
FRAUDULENT SEAMAN CLAIM MOTION FOR REMAND BITES THE DUST
GARDNER V. FIELDWOOD ENERGY LLC
Taylor C. Gardner sued Fieldswood Energy, LLC in state court, alleging that he was a seaman at the time he sustained injuries aboard a Fieldswood lift boat, and asserted claims against his employer for negligence under the Jones Act, and for unseaworthiness and maintenance and cure under general maritime law. Fieldwood timely removed the case to federal court on the basis that Gardner was not, and had fraudulently alleged to be, a seaman. Fieldwood also asserted jurisdiction based on the Outer Continental Shelf Lands Act. Fieldwood then filed a FRCP Rule 12(b)(6) motion to dismiss, arguing therein that because Gardner was not a seaman, he could not state a plausible Jones Act claim, an unseaworthiness claim, or a claim for maintenance and cure. Around that same time, Gardner filed his motion to remand, arguing that he was, under controlling Supreme Court authority, a seaman, and provided an affidavit in support of that argument. As a seaman, Gardner maintained that his general maritime claims are not removable under the "savings to suitors" clause, and that his Jones Act claim was not removable. He likewise argues, in response to Fieldwood's motion to dismiss, that because he was a seaman he has asserted plausible negligence claims under the Jones Act, and plausible general maritime claims for unseaworthiness and for maintenance and cure. The court found that the evidence in the record, taken in the light most favorable to Gardner, did not support his allegation that he was a seaman. Other than Gardner's statements that he cleaned and maintained the deck and handrails of the lift boat as instructed, cleaned the handrails on the stairways to the living quarters, and the captain's room as well as the entire wheelhouse, and cleaned and maintained portions of the vessel, the contents of Gardner's affidavit do not support the conclusion that his duties were related to the navigation, maintenance or voyage of the vessel. In addition, Gardner's statement that he worked over 30% of his job on and from the water, was conclusory, unsupported by any facts, and refuted by the time and log records submitted by Fieldwood. In all, the record evidence did not support the conclusion that Gardner was a seaman. Instead, the evidence shows that Gardner performed the bulk of his work for Fieldwood on a platform, and that any tasks related to, or for, any liftboat, including any cleaning or unspecified maintenance, were incidental and not substantial. Having determined that Gardner was not a seaman, Gardner's motion to remand was easily resolved. Based on the uncontroverted showing Fieldwood had made, the court concluded that it had federal question jurisdiction over this case under the OCSLA. Gardner's motion to remand wad denied and Fieldswood’s motion to dismiss was granted. (USDC SDTX, January 30, 2019) 2019 U.S. Dist. LEXIS 28649; 2019 U.S. Dist. LEXIS 28014
COURT APPROVES PETITION FOR APPROVAL OF GENERAL BOND
COVE MARINE VENTURES LTD. V. EMMS, ET AL.
Cove Marine filed a petition seeking court approval of a general bond conditioned to answer any judgment that may be brought related to the claims of Kegan Emms and Alan Leigh d/b/a/ Yale Products, Inc. In the Petition, Cove Marine asserted that there were only two known claims attached to its vessel. The first claim related to Emms, who had yet to file a formal complaint against the vessel. However, his Notice of Claim alleges damages including but not limited to personal injuries, maintenance and cure, wrongful termination, lost wages and unpaid vacation time resulting from injuries Emms allegedly suffered-while employed as Chief Officer. Cove Marine asserted that Emms' claim amounts to no more than $12,160.81. The second claim related to Leigh, who worked as a project manager of the vessel and notified Cove Marine that he had a maritime lien against the vessel in the amount of $114,964.41, which included an alleged outstanding payment for service, reimbursements and storage charges. Cove Marine asserted that the claims are delaying the sale of the vessel. The court noted that in a case where a vessel has not been arrested, a shipowner may avoid seizure of the vessel by filing a general bond to secure future lien claims against the vessel. Once a general bond is accepted, any subsequent arrest of the vessel is stayed so long as the amount secured by the bond is at least double the aggregate of the amount claimed by the plaintiff. Cove Marine had proposed a general bond in the amount of $500,000.00 be approved by the court, asserting that the amount was appropriate because the amount of the bond is more than sufficient because the bond amount is more than double of aggregate amount of the claims as required by the rule. Emms moved to dismiss the petition arguing solely that the court did not have subject matter jurisdiction to proceed, arguing that while federal courts have the exclusive power to adjudicate in rem suits against a vessel, that power is dependent on the court's jurisdiction over the res, and such jurisdiction was lacking here where the vessel was not yet a defendant. The court found this argument to be without merit. Emms' motion to dismiss was denied. After evaluating the potential claims, the court was satisfied that the Cove Marine’s proposed general bond in the amount of $500,000.00 would serve as sufficient security in this case. The petition was therefore granted. (USDC SDFL, February 25, 2019) 2019 U.S. Dist. LEXIS 30410
MARITIME ACADEMY HELD NOT TO BE A GOVERNMENTAL AGENT
MAINE MARITIME ACADEMY V. FITCH, ET AL.
This dispute arose out of injuries allegedly Janis Fitch while working aboard a Maine Maritime Academy (MMA) training ship. MMA filed a complaint seeking a declaration, pursuant to 28 U.S.C. §2201, that it is not obligated to pay maintenance and cure to Fitch, and, alternatively, a declaration that Sodexo is obligated to indemnify MMA for any liability for Fitch's injury. Sodexo provided food services for MMA, both on-campus and aboard the training ship. Sodexo was Fitch's immediate employer. Fitch answered MMA's complaint, and filed a counterclaim against MMA and a cross-claim against Sodexo for Jones Act negligence, unseaworthiness, and maintenance and cure. Sodexo filed a cross-claim against MMA. Fitch then amended her cross-claim and counterclaim to add a third-party claim against the United States. The case was governed by the Suits in Admiralty Act, which waives the sovereign immunity of the United States for certain cases in admiralty. The central question before the court was whether MMA is an agent of the United States for purposes of the SIAA's exclusivity provision. MMA argued that it is an agent of the United States, as a matter of law, because the United States owns the training ship. It further contended that it qualified as an agent because the United States retains overall direction and control of the vessel for the purpose of training officers in the merchant marine of the United States. The United States and Fitch countered that government ownership of the training ship is not enough, in and of itself, to make MMA an agent as a matter of law. They further contend that MMA is not an agent of the United States because MARAD did not consent for MMA to act as its agent; MARAD did not exercise sufficient control over MMA's operation of the training ship, and MMA used the training ship for its sole benefit. MMA contended that the regulations support its claim that MARAD implicitly consented to have MMA act as its agents. The court disagreed, noting the MARAD Agreement was silent as to any agency arrangement and the express language of the regulations, particularly 310.9, undercut any such implicit understanding. The Custodial Care Guide frankly acknowledges that a complex relationship exists between MARAD and state merchant marine academies that is different from a standard owner-operator arrangement with the government. Therefore the court concluded that MARAD had not consented to having MMA act as its agent. MMA also contended that it was acting on behalf of the Government by doing the job of training young men and women to be members of the merchant marine. The Government and Fitch countered that this overall objective of the Government does not suffice to meet the requirement that an agent act on a principal's behalf. The court pointed out that this was not the typical case where MARAD contracts with a private entity to do a specific job on behalf of the government. This is an arrangement where the interests of the Government and MMA align. While the United States has an overarching interest in the cultivation of a competent merchant marine, the court felt that MMA went too far in its contention that MMA, by operating the training ship, was doing the Government's business and acting on MARAD's behalf. The court then turned to MMA's argument that MARAD retained overall control and direction of the vessel while it was operated by MMA. Given that the contract between the parties does not create an agency arrangement, given that the Government is not contracting with MMA to perform a specific task on its behalf but rather is supporting an overall shared educational objective, and given that MMA retained considerable control over the operation of the training ship, the court concluded that the venture as a whole did not support a finding that MMA is an agent for purposes of the SIAA. Because MMA is not an agent of the United States under the SIAA, the court concluded that it had jurisdiction over Fitch's counterclaims against MMA. The court denied MMA's motion to dismiss. (USDC DME, February 15, 2019) 2019 U.S. Dist. LEXIS 25082
Quotes of the Month . . . “The world as we have created it is a process of our thinking. It cannot be changed without changing our thinking.” -- Albert Einstein
“Do I contradict myself? Very well, then, I contradict myself; I am large -- I contain multitudes.”
-- Walt Whitman
“Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we've been waiting for. We are the change that we seek.” -- Barack Obama
Please note that these opinions and statements are my own. They do not represent the position of my employer or any other organization to which I belong. These opinions may not even represent my own opinion at a later time or place. Under no circumstances should these opinions and statements be considered legal advice. If you want legal advice, please consult an attorney.
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