Articles by Will Bland, IV

No Cause of Action Against Coworker’s Lending Employer

The U.S. District Court for the Eastern District of Louisiana recently issued an interesting decision applying the Longshore and Harbor Workers’ Compensation Act’s borrowed servant doctrine.  The plaintiff was injured on a tension leg platform on the outer continental shelf when another worker dropped a piece of equipment on his back.  Plaintiff sued his employer (BP) as well as the other worker’s employer (Danos and Curole).

The parties ultimately agreed that the LHWCA applied by virtue of the Outer Continental Shelf Lands Act and BP was eventually dismissed as plaintiff’s employer.  Danos and Curole filed a motion for summary judgment, arguing plaintiff had no cause of action because its employee was acting as a borrowed servant of BP at the time of the incident.  If plaintiff’s coworker was acting as a borrowed employee of his own employer, BP, the LHWCA prevented him from suing his coworker for negligence and he therefore had no cause of action for vicarious liability against Danos and Curole.

The Court applied the Fifth Circuit’s nine factor test for the borrowed servant doctrine.  After finding that the vast majority of the evidence weighed in favor of plaintiff’s coworker being a borrowed servant of BP, the Court held that plaintiff had no cause of action against Danos and Curole for vicarious liability and dismissed all claims.

Crawford v. BP Corporation North America, Inc.

9th Circuit: If Attorney Fees are Reduced More Than 30% the District Court Must Explain Why

The U.S. Court of Appeals for the Ninth Circuit recently addressed another attorney fee dispute in a Longshore claim.  The Claimant submitted a fee petition for $22,585.00, which included 60.9 total hours of work at a $500.00 hourly rate for senior counsel and $300.00 for an associate.  The district court awarded $14,268.50 based on a blended hourly rate of $400.00 for 35 hours of work.  The Claimant appealed.

The Ninth Circuit noted that the district court was required to consider some or all of the twelve Kerr factors in awarding fees:

The Kerr factors are (1) the time and labor required; (2) the novelty and difficulty of the question involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

The district court considered two factors, finding that there was a large disparity between the fees being claimed and the amount at stake in litigation ($3,220.20), and that Claimant was not primarily responsible for the litigation becoming more protracted than anticipated.

The Ninth Circuit looked to circuit precedence for the rule that when attorney fees are reduced by more than 30 percent, the judge is required to outline the specific reasons why such a reduction was necessary.  The Court found the district court’s explanation was insufficient in light of the large reduction in fees.  The district court’s decision was vacated and the claim was remanded for a more specific explanation of the reduction.

Carter v. Caleb Brett, LLC, — F.3d —- (9th Cir.  2014).

The 2013 Annual Longshore Conference Had a Great Turnout

The 2013 Annual Longshore Conference hosted by Loyola University New Orleans College of Law recently wrapped up with another great turnout.  The two day conference was held at the Hilton Riverside in New Orleans and included a number of thoughtful presentations and open discussions.

Highlights included a review of recent judicial decisions led by Billy Frey of Tucker & Associates and Brian Karsen of Barnett, Lerner & Karsen.  Among other cases, the panel examined recent Employer-friendly average weekly wage cases including Jasmine v. Can-Am Protection Group, No. 11-0610 (BRB 4/19/12) and Serv. Employees Int’l, Inc. v. Dir., OWCP, No. 11-01065 (S.D. Texas March 11, 2013).

Rob Popich presented on behalf of Mouledoux, Bland, Legrand & Brackett and participated on a panel along with Judge Patrick Rosenow, District Director David Duhon, and Steven Schletker of Covington, KY.  The panel discussed practice and procedure before the OALJ and included topics such as the pending rulemaking on updates to the Rules of Practice and Procedure, the impact of the budgetary sequester on the Department of Labor, and technological advances to assist in the efficiency of adjudicating claims across the country.

Another interesting panel led by Shaun Aulita of Labor Management Services addressed the vocational rehabilitation process in the current economic climate.  The discussion focused on realistic wage earning capacities under the Act and the numerous challenges faced by Employers and Carriers in identifying suitable alternate employment.

What’s up next?  Loyola’s Day With the DOL Conference in Houston.

Duty to Read a Safety Checklist

The Plaintiff, a soldier in the U.S. Army, was injured in a recreational boating accident after he and several other servicemen rented a pontoon boat at a reservoir maintained by the Army.  The men had been drinking all day and the plaintiff fell overboard when he stood up as the boat decelerated.  The plaintiff sued his friend who was piloting the boat, as well as the manufacturer of the rental boat.  The boat manufacturer filed a third party complaint against the U.S. Army, alleging among other things, negligence in failing to warn the boaters of several dangers associated with the boat.  The Army filed a motion for summary judgment, which was granted by the District Court, as the manufacturer failed to establish a genuine issue of material fact as to whether any negligence by the Army caused or contributed to the injuries.  The manufacturer then appealed to the U.S. Fifth Circuit Court of Appeals.

The Fifth Circuit noted that the negligence claims were brought under federal maritime law and therefore the manufacturer must prove that breach of a duty was the “legal cause” of injury and not merely a “but-for” cause.  The court examined the manufacturer’s claims of negligence for failure to verbally review a safety checklist, which included such prohibitions as drinking alcohol while operating the boat and standing while the engine was running.  In this case, the soldier piloting the boat had rented another boat just two weeks prior to the incident.  Because the rental agent recognized the man, he did not feel the need to re-read the safety checklist and instead required the soldier to initial it.

The Court found that even though the pilot was consuming alcohol and other safety rules were broken, his actions demonstrated that he was at least aware of the provisions on the safety checklist.  The Army’s failure to verbally read the safety checklist therefore may have been a factor contributing to injury, but it did not rise to the level of “legal causation” of the plaintiff’s injury.  The court affirmed the summary judgment and the Army was dismissed as a third party defendant.

Regan v. Stafcraft Marine, LLC, No. 10-30619 (5th Cir. Mar. 15, 2011) (unpublished).

Note: This is not the first time the Fifth Circuit addressed this case.  The court issued a published decision in 2008 where it addressed the Feres, “which bars tort suits against the United States by or on behalf of service members whose injuries arise out of activity incident to their military service.”  Regan v. Starcraft Marine, LLC, 524 F.3d 627, 630 (5th Cir. 2008).