Articles by Will Bland, IV

Future Lost Wages Based on Statistical Work-Life Expectancy

A rigger on a crane barge was injured when he fell from a makeshift scaffolding.  He sued the vessel owner for negligence under the Jones Act, as well as his employer for cure (the cost of a back surgery) under general maritime law.  After a bench trial in the U.S. District Court for the Eastern District of Louisiana, the Court entered a judgment against the vessel owner and the employer.  Both appealed to the U.S. Fifth Circuit.

The vessel owner alleged several errors on appeal, including the calculation of future lost wages.  The Court held that future lost wages must be based upon a seaman’s statistical average work-life expectancy unless there was evidence that a particular person, by virtue of health or occupation, was likely to live and work shorter or longer than average.  In assigning future lost wages, the District Court simply adopted an age somewhere in the middle of the high and low work-life expectancies presented by the two expert economists.  Because there was no evidence that the plaintiff might live and work longer than average, the Fifth Circuit applied the statistical retirement age presented by the plaintiff’s expert, thus reducing future lost wages by nearly $100,000.00.

The Court also affirmed the employer’s responsibility for payment of the lumbar laminectomy and fusion surgery.  The employer’s physician contested the medical necessity of the surgery, but the Court found the procedure relieved the plaintiff’s pain and was therefore curative in nature and required under the employer’s maintenance and cure obligations.

Barto v. Shore Construction

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.