Fifth Circuit Upholds Denial of Longshoreman’s Claim, Affirms MBLB Win

Today’s post provides us with an opportunity to brag on one of our own, Rob Popich, who successfully argued Hymel v. Dir., OWCP, for the Employer and Carrier.  The Fifth Circuit’s new, unreported Hymel decision is the third victory Mr. Popich earned in this case, having previously prevailed in front of an administrative law judge (“ALJ”), the Benefits Review Board (“BRB”), and now the Fifth Circuit.

Claimant, a longshoreman, filed a claim after he alleged injury as a result of a work-related incident wherein he was struck by a forklift. In accordance with the Longshoremen and Harbor Workers’ Compensation Act, a claimant is entitled to a presumption of application if he can establish 1) he suffered harm and 2) conditions existed at work, or an accident occurred at work, that could have caused, aggravated, or accelerated the condition. (See 33 U.S.C. § 920.)  The employer then has the opportunity to rebut the presumption by presenting substantial evidence establishing the absence of a connection between the injury and the employment.

Through his presentation of evidence to the ALJ, Mr. Popich successfully rebutted the presumption in favor of the Claimant: the ALJ determined Claimant’s credibility was questionable, and his testimony was inconsistent. Based on this evidence, the ALJ found in favor of Employer and Carrier. The Claimant appealed to the BRB hoping to convince it that the ALJ’s finding of facts were not supported by substantial evidence or consistent with the law. However, the BRB affirmed the ALJ’s determination in favor of Employer and Carrier. Claimant then appealed to the Fifth Circuit.

The Fifth Circuit, being limited in its scope of review to consideration of errors of law, had to determine if the BRB adhered to its statutory standard review of factual determinations made by the ALJ.

Claimant first argued the ALJ’s characterization of witness testimony was improper; the ALJ had determined Claimant did not provide a medical provider with all of information necessary for a diagnosis when Claimant neglected to reveal he was previously injured due to an unrelated incident.  The Fifth Circuit held that the ALJ did not, in fact, mischaracterize witness testimony, as the ALJ was in the best position to assess credibility and conflicting evidence.  Second, Claimant argued the ALJ incorrectly found his testimony inconsistent.  Again, the Fifth Circuit noted the ALJ was in the proper position to weigh the testimony of various witnesses, more than one of which recalled the work incident differently than Claimant.  Third, Claimant alleged the introduction of personnel files were improper.  In disagreeing with this argument, the Fifth Circuit noted the ALJ did not abuse their discretion in admitting this evidence, as it was not bound by traditional rules of evidence.

In reaching its conclusions, the Fifth Circuit looked to dicta of Avondale Indus., Inc. v. Dir., OWCP, 977 F.2d 186 (5th Cir. 1992) which stated that “[T]he ALJ’s decision need not constitute the sole inference that can be drawn from the facts . . . . As fact finder, the ALJ determines questions of credibility of witnesses and of conflicting evidence.”  The ALJ had simply weighed the evidence and made a credibility determination, which the ALJ is entitled to do.  Further, the Fifth Circuit noted the ALJ is not bound by formal rules of evidence; admissibility of evidence can depend solely on whether it is such evidence as a reasonable mind might accept as probative.  In conclusion, the Fifth Circuit held that the BRB did not err in finding the ALJ’s determinations supported by substantial evidence and in accordance with the law.

Fortuity Doctrine Prevented Coverage for Known Loss Following Boating Accident

The Fifth Circuit recently issued an unpublished decision discussing the application of the “fortuity doctrine” under Texas Law.  The underlying lawsuit involved a boating injury.  Plaintiffs suffered serious injuries when their fishing boat collided with a utility boat in a canal near Venice, LA.  In the lower court, the defendants won on summary judgment, with the court concluding that coverage was not available under two Marine Protection & Indemnity policies issued in 2006 and 2008.  On appeal, the Fifth Circuit affirmed the grant of summary judgment, and the district court’s straightforward application of the fortuity doctrine:

Fortuity is an inherent requirement of all risk insurance policies.  “The concept of insurance is that the parties, in effect, wager against the occurrence or non-occurrence of a specified event; the carrier insures against a risk, not a certainty.”  “The fortuity doctrine precludes coverage for two categories of losses: known losses and losses in progress.”  The “known loss” aspect of the fortuity doctrine precludes coverage “where the insured is, or should be, aware of . . . [a] known loss at the time the policy is purchased.”  “A ‘known loss’ is one that the insured knew had occurred before the insured entered into the contract for insurance.”

The 2008 policy provided coverage from May 18, 2008, until May 18, 2009.  The accident in this case occurred on May 1, 2008, more than two weeks before the effective date of the policy.   The fortuity doctrine bars coverage for the accident in this case because it was a known loss at the time the policy took effect.

Sosebee v. Certain Underwriters at Lloyds London, No. 13-30738, slip op. (5th Cir. Apr. 30, 2014).

Removal of a General Maritime Claim

A recent amendment to the widely-utilized removal statute, 28 U.S.C § 1441, now allows for removal of a general maritime law claim to federal court absent diversity of citizenship between the parties. And, the amendment doesn’t stop there- even with the inclusion of a Jones Act claim [statutorily non-removable thanks to 46 U.S.C. § 30104 and 28 U.S.C. § 1445(a)], a general maritime claim can now proceed to be heard in a federal court.

Prior to January 1, 2012, the removal statute only allowed for removal of a general maritime claim if diversity of citizenship was present between the parties. As it was written, the statute permitted removal of claims over which the district court had original jurisdiction,1 except as otherwise expressly provided by Act of Congress.” Such an Act was found in Section (b) of the statute, which limited removal to claims “founded on a claim or right under the Constitution, treaties or laws of the United States.” 28 U.S.C. § 1441(b) (West 2006). Though district courts historically have had original jurisdiction over general maritime law claims, such claims were not founded on a claim or right under the Constitution, treaties, or laws of the United States. They were, therefore, ineligible for removal pursuant to the statute, unless there was an independent basis for removal, such as diversity of citizenship.

Cue the amendment to 28 U.S.C § 1441. Congress removed the limitation provision which permitted removal only for claims “founded on a claim or right under the Constitution, treaties or laws of the United States. The only remaining limitation placed on removal was the criterion in Section (a) requiring the removed claim to be one which the district court had original jurisdiction, which according to 28 U.S.C. § 1333, includes any civil action of admiralty or maritime jurisdiction. So whether it was intentional or not, the amendment eliminated the statutory barrier to removal of general maritime law claims that didn’t have parties with diverse citizenship.

Courts within the purview of the 5th Circuit have already embraced the possibilities associated with the amendment. For instance, in the leading case of Ryan v. Hercules Offshore, Inc., 2013 WL 1967315 (S.D. Tex. May 13, 2013), Judge Miller allowed for, and agreed with, removal of the plaintiff’s general maritime law negligence claims based specifically on the amendment’s unambiguous language. His ruling has been followed by a growing line of cases, including Wells v. Abe’s Boat Rentals, Inc., 2013 U.S. Dist. LEXIS 85534 (S.D. Tex. June 18, 2013), which permitted removal of a general maritime law claim despite the inclusion of a non-removable Jones Act claim. The District Court for the Southern District of Texas was careful to instruct, however, that after removal, the district court “shall sever [the non-removable claims] and shall remand the severed claims to the State court from which the action was removed.” See also Bridges v. Phillips 66 Co., 2013 U.S. Dist. LEXIS 164146 (M.D. La. Nov. 18, 2013).

Despite the recent cases and decisions stemming from Texas and Louisiana courts, the amendment still stands vulnerable to interpretation. For now, however, one can safely and confidently pursue removal of general maritime claims, even in the presence of non-removable Jones Act claims.

1 Under 28 U.S.C. § 1333, district courts “have original jurisdiction, exclusive of the courts of the States, of . . . any civil action of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are entitled.”

Plaintiff-Seaman Can’t Recover Emotional Damages For Witnessing Injury To Someone Else

Plaintiff worked as a vessel repair supervisor at his employer’s shipyard facility.   His primary responsibility was the maintenance and repair of Employer’s life boats.  He spent roughly 70% of his time aboard those vessels.  The other 30% of the time, Plaintiff worked in the shipyard’s fabrication shop or operating a land-based crane.  It was during his land-based maintenance duties that Plaintiff was injured by a falling crane that crashed into a nearby building.   Plaintiff sustained a broken left foot, a severely broken right foot, and an abdominal hernia.  To make matters worse, Plaintiff’s cousin’s husband (another employee at the shipyard) was crushed by the crane and killed.  After a three-day trial, a jury concluded that Claimant was a Jones Act seaman, that Employer was negligent, and that Claimant was entitled to $2,400,000 in damages, which included $1,000,000 for past and future mental pain and suffering.

Employer appealed, challenging inter alia the jury’s determination that Plaintiff was a Jones Act seaman.  Specifically, Employer argued that Plaintiff was a land-based repairman who should be compensated under the Longshore and Harbor Workers’ Compensation Act, as opposed to a seaman who should be compensated under the Jones Act.  The Fifth Circuit disagreed, finding that Plaintiff satisfied the two-prong seaman test:

Though the Jones Act does not define “seaman,” Congress has elsewhere defined it as the “master or member of a crew of any vessel.”  To determine if a worker is a seaman or member of a vessel’s crew, the Supreme Court has established a two-prong test: “First, ‘an employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission.’  Second, ‘a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both duration and nature.’”  Importantly, an individual can still qualify for seaman status even if he divides his time among multiple vessels under common ownership or control.  The relevant question is whether, in the course of his current job, he substantially contributes to the vessels’ functions and maintains a substantial connection with the fleet.”

Here, Plaintiff’s work was the ship’s work.  His employment duties focused on Employer’s vessels.  Plus, he did the ship’s work a substantial period of time.  Previously, the Supreme Court “endorsed” the Fifth Circuit’s general rule of thumb that “[a] worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”  Here, Plaintiff spent 70% of his time working on Employer’s fleet of lift-boats, thus satisfying the “substantial in duration” inquiry.  Accordingly, Plaintiff was a seaman.

Nevertheless, Employer was successful with one important aspect of the claim: the availability of emotional damages for Plaintiff as a result of the death of Plaintiff’s relative.  After the trial, the jury awarded Plaintiff $1,000,000 for emotional suffering, but the Jones Act “does not indiscriminately permit compensation for emotional damages resulting from the death of another person.”  While Plaintiff may be entitled to emotional damages if he was in the zone of danger, Plaintiff was not entitled to emotional damages for the harm that happened to someone else, let alone a distant relative:

As described by the Supreme Court, the zone of danger test allows a Jones Act plaintiff “to recover for emotional injury caused by fear of physical injury to himself.”  More tellingly, the . . . Court explicitly rejected the relative bystander test, which would have permitted certain relatives to recover for emotional damages caused by witnessing an injury to someone else.  As our own court has previously recognized, it would be a “major departure from the existing jurisprudence” to “allow recovery for injuries resulting not from physical trauma, or the fear of physical trauma, to the plaintiff but from witnessing a ‘bad sight,’ i.e., harm to another.”

Several other considerations bolster this conclusion.  If multiple people witness an injury to someone else, it would be arbitrary to award emotional damages for seeing that person’s injury only to those people who also happened to suffer an injury at the same time.  Moreover, the Jones Act only extends an action to recover for the death of a seaman to his immediate family.  It would thus be inconsistent with the Jones Act’s wrongful death provision to permit anyone else to recover for the negligent death of a coworker.

Accordingly, the Fifth Circuit vacated the jury’s award and remanded for a new trial on damages.  The court could not discern to what extent the jury’s findings compensated Plaintiff for the emotional damages he suffered as a result of his relative’s death.

Naquin v. Elevating Boats, L.L.C., — F.3d —- (5th Cir. 2014).

Note: Take a moment to read Judge Jones’ dissent.  Here’s the conclusion: “With all respect to the majority, I would hold that [Plaintiff] is not entitled to seaman status and, therefore, reverse the district court’s ruling that [Employer] was liable under the Jones Act.”