March 2002 Issue

WIDOW RECOVERS ACCIDENTAL DEATH BENEFITS UNDER TRAVEL INSURANCE POLICY WHERE PASSENGER DIED WHILE ATTEMPTING TO RE-BOARD A SCUBA DIVING BOAT DESPITE COVERAGE CLAUSE WHICH COVERED INJURIES THAT OCCURRED WHILE THE INSURED BOARDED A COMMON CARRIER AND WHERE THE FATAL INJURY STARTED BEFORE RE-BOARDING THE VESSEL

Linda Fuller, Plaintiff-Appellee, vs. Hartford Life Insurance Company, Defendant-Appellant.

No. 01-1132
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
281 F.3d 704; 2002 U.S. App. LEXIS 3479
December 10, 2001, Submitted
March 6, 2002, Filed

PRIOR HISTORY:

Appeal from the United States District Court for the Eastern District of Arkansas.

DISPOSITION:

Affirmed.

PROCEDURAL POSTURE:

Plaintiff widow sued defendant insurer to recover accidental death benefits under a travel insurance policy purchased by her husband before he died. The United States District Court for the Eastern District of Arkansas granted summary judgment in favor of the widow and denied the insurer’s motion for summary judgment. The district court also awarded the widow $125,000 in attorney’s fees. The insurer appealed.

OVERVIEW:

The widow’s husband drowned while attempting to re-board the boat from which he had gone scuba diving. The insurance policy covered injuries that occurred while the insured boarded a common carrier. The district court held that the boat was a common carrier and that the husband’s drowning injuries occurred while he was boarding the boat. The appeals court agreed. Arkansas, rather than Texas, law governed the claim, so a Texas common law definition of “common carrier” was irrelevant. Further, any common law definition was immaterial because the policy defined the term. Although the husband had taken water into his lungs before attempting to re-board the boat, the policy did not exclude coverage for a continuing injury that began before the insured attempted to board the common carrier. The term “directly” required a causal connection between accident and injury, but not a simultaneous temporal relationship. The policy did not require a connection between the risks associated with boarding a common carrier and the insured’s accident. Finally, regarding the attorney’s fees award, the district court considered appropriate factors when determining what fee would be reasonable.

OUTCOME:

The court affirmed the judgment of the district court.

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SEAMAN’S JONES ACT CLAIM SUCCESSFUL BUT UNSEAWORTHINESS CLAIM UNSUCCESSFUL WHERE CREW MEMBER NEGLIGENTLY HEAVED A LINE INJURING SEAMAN

FADEL NASSER, Plaintiff, against CSX LINES, LLC, Defendant.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 4512
March 20, 2002, Decided

DISPOSITION:

Final judgment entered in favor of Plaintiff against Defendant in the sum $10,000 in addition to the amount of cure due and owing to be determined.

PROCEDURAL POSTURE:

Plaintiff seaman brought and action against defendant shipowner for injuries he received on the ship under both the Jones Act, 46 U.S.C.S. App. § 688 et seq., and general maritime law. The court conducted a bench trial, reviewed the parties’ submissions and the evidentiary exhibits, and assessed the credibility of all witnesses, and was ready to set forth its findings of fact and conclusions of law.

OVERVIEW:

The seaman was injured when a coworker heaved a line, throwing the seaman about two feet into the air. The court found that although the seaman was not credible about his delay in seeking treatment and his complaints of pain were exaggerated, he did suffer from a severe contusion of the low back and post-trauma disorder. The court found that the seaman’s unseaworthiness claim failed as he did not show that the rope that struck him was not reasonably fit for its intended purpose or that its condition caused his injuries. Rather, his injury was caused by the negligence of a coworker. Thus, the court found that all of the elements of negligence under the Jones Act were proved: (1) the ship had a duty to provide a reasonably safe place to work; (2) the ship vicariously breached that duty when its employee negligently heaved the line without instruction, command, or independent investigation; and (3) such negligence was the proximate cause of the seaman’s injury. Last, the court found that under the maximum medical recovery date the seaman was not entitled to any maintenance but the shipowner had to provide the cure that it withheld from December 31, 1998 to November 21, 1999.

OUTCOME:

Final judgment was entered in favor of the seaman against the shipowner in the sum of $10,000, in addition to the amount of cure due and owing to be determined.

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SUMMARY JUDGMENT ON JONES ACT NEGLIGENCE, UNSEAWORTHINESS, AND MAINTENANCE AND CURE DENIED WHERE SEAMAN AND EMPLOYER PRESENT DIFFERING TESTIMONY AS TO HOW ACCIDENT OCCURRED.

LONNY PELLEGRIN VERSUS INTCO INC.

CIVIL ACTION NO. 01-2066 SECTION “A” (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 5252
March 20, 2002, Decided
March 21, 2002, Filed

DISPOSITION:

Defendant’s motion for summary judgment denied.

OVERVIEW:

Seaman employed aboard tug pushing barge was ordered by tug’s operator to tighten the cables that secure the tug to the barge at which time the seaman discovered that the winch was cracked. Shortly thereafter, the barge began to separate from the tug. The seaman was then instructed to jump over to the barge to get some rope to secure the barge to the tug. As the rope was being retrieved by the seaman, it got caught on the bottom of a shed door which the seaman then kicked to free the rope, simultaneously slipping on a puddle of oil. The seaman filed suit alleging Jones Act negligence and unseaworthiness. His employer moved for summary judgment alleging that the seaman was injured by kicking the door in anger rather than attempting to free the rope with his hands. In support of its summary judgment, the employer submitted affidavits that the seaman had kicked the door in anger when he slipped. The court concluded that it could not grant summary judgment where the facts of the incident were in dispute.

OUTCOME:

The employer’s motion for summary judgment was denied.

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SEAMAN’S AWARD FOR PAST AND FUTURE MAINTENANCE VACATED WHERE SEAMAN HAD NOT YET REACHED MAXIMUM MEDICAL CURE AND JURY COULD NOT ACCOUNT FOR POSSIBILITY OF REACHING MAXIMUM MEDICAL CURE PRIOR TO THE END OF SEAMAN’S ESTIMATED WORKING LIFE.

TANNOUS L. BACHIR, Plaintiff, -against- TRANSOCEANIC CABLE SHIP COMPANY and C. S. LONG LINES, L.P., Defendants.

98 Civ. 4625 (JFK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 4340
March 15, 2002, Decided
March 15, 2002, Filed

DISPOSITION:

Defendants’ motion for judgment as a matter of law granted in part and denied in part. Future maintenance award vacated. Defendants’ motion for new trial denied in all respects.

PROCEDURAL POSTURE:

Plaintiff seaman sued defendant shipowners, alleging that the shipowners were liable for maintenance and cure for injuries the seaman suffered while working aboard the shipowners’ vessel. The jury returned a verdict in favor of the seaman, and the shipowners moved for judgment as a matter of law and for a new trial.

OVERVIEW:

The shipowners contended that the lump sum award for future maintenance was based on the erroneous finding that the seaman had not reached maximum cure, and that the past maintenance rate was limited to the collective bargaining agreement rate. The shipowners also argued that expert medical testimony was erroneous and improperly admitted, and that the award for pain and suffering was excessive. The court first held that, while the evidence supported the finding that the seaman had not reached maximum cure, the future maintenance award based on the seaman’s estimated working life failed to account for the possibility of prior maximum cure. Further, the maintenance rate provided by the collective bargaining agreement was clearly inadequate, but the seaman failed to provide evidence to determine a proper past maintenance award. Nonetheless, the shipowners had a full opportunity to challenge the diagnosis that the seaman’s accident caused psychological problems, and the alleged prior fraud of one expert was too remote in time to be probative of the truthfulness of the witness. Finally, the jury’s award for pain and suffering, while substantial, was not excessive

OUTCOME:

The shipowners’ motion for judgment as a matter of law was granted in part with regard to the lump sum future maintenance and past maintenance awards, but the motion was otherwise denied. The shipowners’ motion for a new trial was denied.

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CREW MEMBER’S CLAIM FOR BREACH OF CONTRACT AGAINST VESSEL OWNER SUCCESSFUL WHERE VESSEL OWNER TERMINATED CREW MEMBER WITHOUT EITHER PERMITTING HIM TO WORK DURING THE CONTRACT’S “NOTICE PERIOD” OR PAYING HIM FOR SUCH PERIOD OF TIME.

CAPTAIN HARTMUT RATHJE, et al., Plaintiffs vs. SCOTIA PRINCE CRUISES, LTD., Defendant

Civil No. 01-123-P-DMC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2002 U.S. Dist. LEXIS 4078
March 13, 2002, Decided

DISPOSITION:

Judgment entered in favor of Sjostrom and against Defendant on Count I of the complaint, in favor of Defendant and against Rathje and Persson, on the Plaintiffs’ claim surviving summary judgment and against Defendant on all of Defendant’s counterclaims.

PROCEDURAL POSTURE:

Plaintiffs, former captain, chief engineer, and superintendent, brought a claim in admiralty for breach of contract/wrongful termination against defendant vessel owner and a pendent state-law wage claim. The owner filed a counterclaimed against each plaintiff for breach of fiduciary duty and a motion for summary judgment on their complaint.

OVERVIEW:

Plaintiffs asserted that the vessel owner breached their respective employment contracts by wrongfully terminating them and by failing to pay them their wages and vacation and days off, which they would have earned or accrued had they worked for the notice periods contained in the contracts. The court granted in part and denied in part the vessel owner’s motion for summary judgment and dismissed the pendent state law claim. The court entered judgment for the superintendent and against the captain and chief engineer on their breach of employment contract claim and for each plaintiff on the owner’s counterclaims. The court found that the owner breached the notice provision of the superintendent’s contract by terminating his job without either permitting him to work during the nine-month notice period or paying him for that time. As the captain and chief engineer resigned without the notice that was required by their employment contracts, they were not entitled to the notice-period pay. The owner’s counterclaims failed because no evidence existed that plaintiffs had engaged in self-dealing or that they had failed to maintain properly the vessel’s accounts.

OUTCOME:

The court entered judgment for the superintendent on his breach of employment contract claim against the vessel owner and awarded him compensation. The court entered judgment for the owner against the captain and chief engineer. The court entered judgment for plaintiffs on all of the owner’s counterclaims. The court granted the owner’s motion for summary judgment in part and dismissed plaintiffs’ pendent state law claim.

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EMPLOYER’S MOTION FOR SUMMARY JUDGMENT ON JONES ACT NEGLIGENCE DENIED WHERE SEAMAN / CROUPIER’S INJURY WAS CAUSED BY HER DEALING CARDS AND EMPLOYER REFUSED TO REASSIGN SEAMAN; SUMMARY JUDGMENT ON UNSEAWORTHINESS GRANTED BECAUSE FAILURE TO REASSIGN SEAMAN / CROUPIER ON TWO OCCASIONS FELL SHORT OF A “CONTINUOUS COURSE OF CONDUCT”; EMPLOYER’S OBLIGATION TO PAY MAINTENANCE AND CURE IS NOT RELIEVED WHERE SEAMAN / CROUPIER REFUSED TO ACCEPT LIGHT DUTY POSITION.

ELIZABETH PUTNAM, Plaintiff, vs. EMPRESS CASINO JOLIET CORP.,Defendant.

No. 01 C 4245 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 2002 U.S. Dist. LEXIS 4486 March 12, 2002, Decided March 19, 2002, Docketed

DISPOSITION:

Defendant’s motion for summary judgment granted as to Counts II and IV, granted in part and denied in part as to Count III and denied as to Count I.

PROCEDURAL POSTURE:

Plaintiff employee sued defendant employer for personal injuries sustained during her employment on a casino river boat, and alleged negligence under the Jones Act, 46 U.S.C.S. § 688 et seq. (count one), unseaworthiness of the casino under general admiralty and maritime law (count two) and maintenance and cure under general admiralty and maritime law (count three) and the Jones Act (count four). The employer moved for summary judgment.

OVERVIEW:

The employer claimed summary judgment was appropriate as to the Jones Act negligence claim because she could not establish all the elements of her claim. The employee’s supervisor knew she was experiencing pain in her arm from dealing and denied her requests for reassignment. Under these circumstances, a reasonable fact finder could have concluded the risk of injury was foreseeable to the employer. The employee advanced sufficient evidence to establish that the employer’s failure to reassign her played some part in causing her injury. However, her supervisor’s failure to reassign her on two occasions fell short of establishing a continuous course of conduct, thus her unseaworthiness claim failed. The employer’s obligation to pay the employee maintenance until maximum cure was not affected by her refusal to accept the light duty position. The employee achieved maximum cure and the employer paid her medical expenses until that date, thus was entitled to judgment as a matter of law on the cure claim. The employee did not allege any additional injuries resulting from the employer’s failure to provide maintenance, thus her claim for maintenance and cure under the Jones Act failed.

OUTCOME:

The employer’s motion for summary judgment was granted as to counts two and four, granted in part and denied in part as to count three, and denied as to count one.

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CONTRACT BETWEEN DRILLING RIG OPERATOR AND SEAMAN’S EMPLOYER WHICH INDEMNIFIES THE OPERATOR FOR ITS FAULT IS UNENFORCEABLE UNDER LOUISIANA LAW BUT IS ENFORCEABLE UNDER MARITIME LAW

GRANT ROSCOE VERSUS BRITISH-BORNEO USA, INC.

CIVIL ACTION NO. 01-1238 SECTION “N”
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 4141
March 4, 2002, Decided
March 5, 2002, Filed; March 6, 2002, Entered

DISPOSITION:

British-Borneo U.S.A., Inc’s Motion for Summary Judgment regarding third party demand DENIED. Atwood Oceanic, Inc.’s Motion for Summary Judgment regarding third party demand DENIED. Expro Americas, Inc.’s Motion for Summary Judgment regarding the third-party claims against it DENIED.

PROCEDURAL POSTURE:

Plaintiff employee sued defendant employer, a drilling operator, and the owner of a drilling rig under the Jones Act and the General Maritime Law, for injuries sustained while on the drilling floor of the drilling rig. The operator cross-claimed against the employer for indemnity. The owner and the operator moved for summary judgment against the employer. The employer moved for summary judgment, seeking dismissal of the indemnity claims.

OVERVIEW:

The employer and the operator entered into a contract which required that the employer provide the operator with a defense and indemnity for any claims brought by an employee of the employer for personal injuries. The court held that to the extent that the contract required indemnification for the operator’s fault, it would be unenforceable under La. Rev. Stat. § 9:2780. However, the indemnification provisions of the contract would have been enforceable under maritime law, provided that indemnification for the operator’s own negligence was clearly and unequivocally expressed. It was not disputed that the contract stated that the employer would fully defend, indemnify and hold the operator harmless, even where the accident was solely caused by the operator’s own negligence, for any claims brought by the employer’s employees arising from, or incidental to, the work performed under the contract. However, there were disputed issues of fact as to whether the contract was a maritime or non-maritime contract. Specifically, the contract work appeared to be more analogous to casing service and well completion, which activities had historically been characterized as maritime work.

OUTCOME:

Each parties’ motion for summary judgment was denied.

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APPELLATE COURT HOLDS THAT WHERE A DAILY MAINTENANCE RATE WAS FIXED UNDER THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT, THE AGREEMENT IS TO BE ACCEPTED BY REVIEWING COURTS AS REASONABLE ABSENT EVIDENCE THAT THE COLLECTIVE BARGAINING CONTRACT AS A WHOLE IS UNFAIR OR THAT THE UNION DID NOT ADEQUATELY REPRESENT THE CLAIMANT – EVEN WHEN THE CLAIMANT IS NOT A MEMBER OF THE UNION.

BOUCHARD TRANSPORTATION CO., INC., Appellant, v. CHRISTOPHER CONNORS, Appellee.

CASE NO. 4D01-2424
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2002 Fla. App. LEXIS 3033; 27 Fla. L. Weekly D 587
March 13, 2002, Opinion Filed

PRIOR HISTORY:

Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John Wessel, Judge; L.T. Case No. CL 00-12694 AE.

DISPOSITION:

Reversed and remanded.

PROCEDURAL POSTURE:

Appellee worker sued appellant transportation company under the Jones Act for injury received while working on its ship. The Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County (Florida), concluded that the worker was not bound by a union contract because he was not a member of the union, and entered a partial final judgment on the issue of “maintenance and cure.” The company appealed.

OVERVIEW:

The worker was an assistant engineer on the ship. That position was part of a bargaining unit represented by the union, although he himself was not a union member. The worker submitted an affidavit detailing living expenses of approximately $30 per day. In opposition, the company filed an affidavit stating that the worker was party to a collective bargaining agreement with the union representing the seamen. Evidence showed that he was paid pursuant to the terms of the agreement. Under the contract, the maintenance rate was fixed at $15 per day. The appellate court found that the maintenance damages awarded were in excess of the daily living expenses provided for under the agreement. Where a daily maintenance rate was fixed under the terms of a collective bargaining agreement, it was to be accepted by reviewing courts as reasonable, absent evidence that the collective bargaining contract as a whole was unfair or that the union did not adequately represent the claimant. Labor agreements benefitted all employees within bargaining units, not just union members.

OUTCOME:

The partial judgment was reversed and the case was remanded for further proceedings.