In Jones Act Claim, 46 U.S.C.S. § 688, Based On Photographs And Expert’s Testimony That Employer Failed To Comply With Its Own Safety Policy To Minimize Any Fall Hazard And Could Have Done So By Installing Handrail On Vessel’s Platform, Jury Could Have Concluded That Employer Breached Its Duty Of Care To Employee By Not Exercising Reasonable Care
TERRELL PARFAIT VERSUS TRANSOCEAN OFFSHORE, INC., AND SHELL OIL PRODUCTS CO. COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2007 La. App. LEXIS 51
January 5, 2007, Decided
PROCEDURAL POSTURE:
The Civil District Court, Orleans Parish, Division “G-11” (Louisiana), rendered a judgment in favor of plaintiff employee for damages he sustained in a work-related accident aboard a vessel, a semi-submersible drilling rig, owned by defendant employer. The vessel was under contract with defendant contractor to drill several oil wells in the Gulf of Mexico. The employer and the contractor appealed.
OVERVIEW:
A Jones Act employer’s duty to the employee was that of ordinary prudence, that was, the duty to take reasonable care under the circumstances. The jury could have concluded from the evidence that the employer failed to exercise reasonable care by having the employee work on an elevated platform without railings, but that the platform did not make the vessel unseaworthy, i.e., the platform did not render the vessel unfit for drilling wells in the Gulf of Mexico. Based on the photographs and an expert witness’s testimony that the employer failed to comply with its own safety policy to minimize any fall hazard and could have done so by installing a handrail on the platform, the jury could have concluded that the employer breached its duty of care to the employee by not exercising reasonable care under the circumstances. Thus, the appellate court could not say that the jury was clearly wrong in determining that the employer’s negligence contributed to the employee’s injuries. However, because the employee had recovered future lost wages as a result of an accident in 1988, the amount of his award was reduced by the appellate court.
OUTCOME:
The appellate court reversed the trial court’s judgment in favor of the employee, in part, to dismiss his claim against the contractor and to vacate the damage award. The appellate court amended the judgment to cast the employer 100% at fault and award the employee total damages of only $ 712,029.11. As amended, the appellate court affirmed the trial court’s judgment.
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A District Court Erred In Refusing To Consider Affidavits Offered By A Ship Company After Depositions Were Taken When The Affidavits Provided A More Complete Explanation Of A Crewmember’s Duties And The Affidavits Were Not Contradictory To The Deposition Testimony
CLINTON RIVER CRUISE CO., Petitioner-Appellant, v. NATHANIEL C. DELACRUZ, II, as Personal Representative of the Estate of Rafael C. DeLaCruz, II, Deceased, Claimant-Appellee. UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2007 U.S. App. LEXIS 765
January 10, 2007, Filed
PROCEDURAL POSTURE:
Appellant ship company sought review of a decision from the United States District Court for the Eastern District of Michigan, which denied its motion for summary judgment and granted summary judgment in favor of appellee, the personal representative of a deceased passenger’s estate, in the personal representative’s action arising out of the passenger’s death.
OVERVIEW:
The company’s vessel took a river cruise with two crewmembers, a captain, and a bartender. As the vessel was returning to its berth, the passenger and another person decided to hold a swimming race to land. The passenger drowned. The company filed a complaint for exoneration from or limitation of liability. The district court granted summary judgment to the personal representative based on one crewmember’s assertion that she was not a deckhand and the failure of the company to conform to a certificate of inspection directing it to man the vessel with two deckhands as required by 46 U.S.C.S. § 8101(a). Because the company had not conformed to § 8101(a), the district court held that it had been negligent per se. On appeal, the court vacated that decision and remanded. The court found that the affidavits offered by the company to provide a more complete explanation of the crewmember’s duties should have been taken into account by the district court even though they were provided after depositions because they did not contradict the deposition testimony. Thus, a genuine fact existed as to whether the crewmember was a second deckhand.
OUTCOME:
The court vacated the district court’s award of summary judgment in favor of the personal representative, affirmed the denial of the company’s motion for summary judgment, and remanded the action to the district court for further proceedings.
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Stay Of Employer’s Federal Breach of Contract Suit against Employee Who Had Filed Negligence Suit in State Court Was Not Warranted
TRANSOCEAN OFFSHORE USA, INC., Plaintiff-Appellant v. DAVID CATRETTE, Defendant-Appellee UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 732
January 12, 2007, Filed
PROCEDURAL POSTURE:
Appellant employer sought review of an order from the United States District Court for the Eastern District of Louisiana, which granted appellee employee’s motion for a stay in the employer’s suit alleging that the employee breached a settlement agreement between the parties by filing suit against the employer in a state court in connection with an injury sustained by the employee while working on the employer’s ship.
OVERVIEW:
The district court held that the stay was warranted because the state court gave the employee a right to a jury trial and proceeding with the federal suit would amount to an impermissible constructive removal of the employee’s Jones Act claim. The court disagreed. The employer’s suit, in which damages were sought, was one for breach of contract, rather than a declaratory judgment suit. Thus, the Colorado River doctrine applied. Under that doctrine, the court considered six factors in determining whether exceptional circumstances warranted a stay. The state and federal forums were convenient for the parties; neither court had assumed jurisdiction over a res; and although the employee had filed suit first, the employer could not have filed its suit until after the employee breached the agreement. Thus, none of these factors cut in favor of a stay. The state court could protect the employer’s rights, and maritime law provided the rules of decision in both cases. Thus, those factors were neutral. The need to avoid piecemeal litigation weighed in favor of a stay, but that one factor alone was insufficient to create the exceptional circumstances necessary to warrant a stay.
OUTCOME:
The court reversed the district court’s order staying the suit and remanded for further proceedings.
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Evidentiary Hearing Was Necessary To Determine Whether Husband And Wife’s Malpractice Suit Against Cruise Line And Australian Doctor Should Be Dismissed For Lack Of Personal Jurisdiction Over Doctor Where Wife Averred That Doctor Treated Husband While Ship Was In A Florida Port And Doctor Averred That She Treated Husband Only While Ship Was At Sea
RICHARD LAUX and MARTHA LAUX, Plaintiffs, vs. CARNIVAL CORPORATION, a foreign corporation d/b/a CARNIVAL CRUISE LINES, and DIANNE NICHOL, Defendants. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2007 U.S. Dist. LEXIS 3395; 20 Fla. L. Weekly Fed. D 302
January 17, 2007, Decided
PROCEDURAL POSTURE:
Plaintiffs, a husband and his wife, filed suit against defendants, a cruise line and a doctor, seeking to recover damages for injuries that the husband allegedly sustained as a result of the doctor’s misdiagnosis of the husband’s brain bleed while the husband was a passenger on the cruise line’s ship. The doctor moved to dismiss the suit for lack of personal jurisdiction.
OVERVIEW:
The doctor, an Australian citizen, alleged that the court lacked personal jurisdiction over her because she was not licensed to practice in Florida, she was not a resident of Florida, and she did not own any property or maintain any businesses or bank accounts there. Plaintiffs argued that the court had personal jurisdiction over the doctor pursuant to Fla. Stat. § 48.193 because the doctor’s malpractice occurred in Florida. The court noted that, under Florida case law, Florida courts only had personal jurisdiction over a ship’s doctor if the alleged malpractice occurred inside Florida’s territorial boundaries. The wife’s affidavit stated that the doctor, while the ship was in port in Florida, refused to examine the husband, told the wife that the husband did not need to be seen at a local hospital and instead could see his primary care physician when he returned to Pennsylvania, and the doctor refused to allow the husband to stay in the infirmary during the disembarking process. The doctor alleged that she never treated or saw the husband while the ship was in a Florida port. Because the affidavits were conflicting, an evidentiary hearing was necessary.
OUTCOME:
The court denied the motion to dismiss and ordered that an evidentiary hearing be held.
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The Federal Longshore And Harbor Workers’ Compensation Act, 33 U.S.C.S. §§ 901-950, Preempted A State Negligence Claim For Damages By A Longshoreman Against A Co-Employee For An Injury That Occurred Where There Was Concurrent State And Federal Jurisdiction
CHRISTOPHER HILL v. DANIEL KNAPP COURT OF APPEALS OF MARYLAND
2007 Md. LEXIS 11
January 16, 2007, Filed
PROCEDURAL POSTURE:
Appellant, a dock worker, was granted certiorari to challenge the judgment of the Circuit Court for Baltimore City (Maryland), which granted summary judgment in favor of appellee, a forklift operator. The dock worker had brought a negligence suit against the forklift operator.
OVERVIEW:
While performing his work, the dock worker was struck by a load of plywood dropped on him by the forklift operated by the forklift operator. The dock worker was a borrowed servant of the employer, and the forklift operator was an employee of the employer. Thus, the two were co-employees. The dock worker sought compensation and medical expenses under the Maryland Workers’ Compensation Act and obtained such benefits. The dock worker was advised he was eligible for compensation under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. §§ 901-950, but never applied for such benefits. The court agreed with the lower court that the LHWCA preempted a state tort claim for damages against a co-employee in the twilight zone, namely when there existed concurrent state and federal jurisdiction. The court examined the legislative history of the LHWCA and considered the Supremacy Clause of the United States Constitution in making its determination.
OUTCOME:
The court affirmed the judgment of the trial court.
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Court Erred In Finding Ship Repair Companies And Dock Board Liable For Deaths Of Two Individuals Allegedly Caused By Occupational Exposure To Asbestos From Their Work On Wharves In New Orleans; Inter Alia, Board Did Not Owe Them A Duty To Provide Them With Safe Work Environment And Had No Legal Duty To Protect Them From Hazards Posed By Asbestos.
JAKE PALERMO VERSUS THE PORT OF NEW ORLEANS, ET AL. CONSOLIDATED WITH: ABRAHAM VEAL AND SHEILA ROCHELLE VEAL VERSUS THE PORT OF NEW ORLEANS, ET AL. COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2007 La. App. LEXIS 50
January 19, 2007, Decided
PROCEDURAL POSTURE:
The consolidated cases were instituted by appellees, the adult children of two individuals whose deaths were allegedly caused by occupational exposure to asbestos from their work on the wharves on the Mississippi River in New Orleans. The Civil District Court, Orleans Parish, Division “C-6” (Louisiana) found appellants, ship repair companies and the dock board, were liable and awarded damages. The companies and board appealed.
OVERVIEW:
Inter alia, the board claimed that it did not owe the workers a duty to provide them with a safe work environment and that it had no legal duty to protect them from the hazards posed by asbestos exposure in their employment. As the board pointed out, both federal and state law unequivocally imposed that duty on the stevedore’s employer. Although the children presented evidence that exposure to asbestos cargo, as well as to the airborne fibers and debris generated by that cargo, was dangerous, there was no evidence to show that the mere presence of that cargo made the wharves themselves defective. In addition, even assuming a defective condition existed, they presented no evidence that the board knew or should have known of such a condition. Whether the board knew generally that asbestos was being shipped through the port was irrelevant because absent a defect in its premises, the pertinent fact was that the board had no custody or control of the asbestos-containing cargo or of the loading, unloading, or ship repair operations. The trial court committed legal error by finding that the board breached a duty to protect the workers under the circumstances presented in the instant case.
OUTCOME:
The judgment of the trial court was reversed.
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The Survivors Of A Man Killed While Working On A Barge In Ocean Waters Were Entitled To Benefits Under The LHWCA But Not To Exemplary Damages Under The Texas Workers’ Compensation Act; The Texas Act Prohibited Benefits To Workers Covered By The LHWCA, And No Election Of Benefits Was Permissible
MARIA GENOVEVA ANAYA, MARIO ANAYA, EDUARDO ANAYA, JESSICA ANAYA, AYDHEE ANAYA, Plaintiffs-Appellants, versus TRAYLOR BROTHERS, INC., Defendant-Appellee. UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 535
January 10, 2007, Filed
PROCEDURAL POSTURE:
Plaintiffs, the surviving family members of a worker killed in an accident on a barge while constructing a bridge in ocean waters, appealed a summary judgment issued by the United States District Court for the Southern District of Texas in favor of defendant employer in plaintiffs’ suit seeking exemplary damages under the Longshoremen and Harbor Workers’ Compensation Act (LHWCA).
OVERVIEW:
After the accident, plaintiffs submitted an application to the Texas Workers’ Compensation Commission for survivor benefits and subsequently received a series of benefit checks from the employer’s insurer. After plaintiffs’ attorney sent a notice of representation to the insurer, the insurer informed plaintiffs that the benefits were paid pursuant to the LHWCA, not the Texas Workers’ Compensation Act (TWCA). Plaintiffs filed a request to receive TWCA benefits, then sued the employer for exemplary damages based on the employer’s alleged gross negligence. The insurer filed a dispute with the Commission, which found that plaintiffs did not qualify for TWCA benefits. The district found for the employer. On appeal, the court agreed. Under the status test, the decedent was engaged in maritime employment because he was injured while on actual navigable waters. Thus, plaintiffs were entitled only to benefits under the LHWCA, which, unlike the TWCA, did not permit exemplary damage awards. Additionally, Tex. Lab. Code Ann. § 406.091(a)(2) prohibited benefits to workers covered by analogous federal laws. No election of benefits was sanctioned by U.S. Supreme Court precedent.
OUTCOME:
The court affirmed.
