Summary Judgment Was Not Appropriate in Jones Act Case Against Louisiana

Plaintiff worked on a ferry boat operated by the State of Louisiana, Department of Transportation and Development.  On August 1, 2007, she slipped and sustained injuries while cleaning an oil leak the vessel’s engine room.  After Plaintiff filed a Jones Act suit against the State, the State moved for summary judgment on the issue of causation, arguing that Plaintiff’s own negligence was the sole of her injury.  In response, Plaintiff filed her own motion for summary judgment on the issue of liability, arguing that the State’s vessel was unseaworthy and that the State was negligent in failing to repair the vessel.  The trial court agreed with Plaintiff and the State appealed.

Louisiana’s Third Circuit first addressed causation.  The State argued that Plaintiff could not prove causation because, “while cleaning the oil with soap and water, she herself created the condition which caused her injury.”  The Third Circuit recognized that a seaman need only present “slight evidence” that her injuries were caused by her employer’s negligence in order to reach the jury (and avoid summary judgment).  Here, Plaintiff presented sufficient evidence to avoid summary judgment:

In a transcript attached to her opposition to the State’s summary judgment motion, Ms. Thibodeaux testified that she had not yet mopped the portion of the floor on which she slipped.  She further testified that she was cleaning according to operational instructions.  In contrast, the State alleges she created the condition of soapy water mixed with oil through her own act of mopping.  Therefore, there exists a genuine issue of material fact as to causation.

As for liability, the Third Circuit determined that summary judgment should not have been granted in Plaintiff’s favor.   Plaintiff submitted that the vessel’s engine leaked oil, that its propeller shaft leaked water, and that the vessel had “poor flooring conditions.”   But the “presence of oil does not satisfy the legal standard for demonstrating Jones Act negligence as set forth above.”  Here, the jury must determine whether the dangerous condition was caused by the State’s negligence, or whether, as the State argued, Plaintiff caused the dangerous condition herself.

Thibodeaux v. State, DOTD, 13-893 (La. App. 3 Cir. 3/12/14); — So. 3d —-.

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.”

Fifth Circuit Holds that Carrier Has Right of Reimbursement Against a Jones Act Settlement

In a new published decision, the Fifth Circuit addressed “whether an insurer who makes voluntary [Longshore and Harbor Workers' Compensation Act ("LHWCA")] payments to an injured employee on behalf of a shipowner/employer is entitled to recover these payments from the employee’s settlement of a Jones Act claim against the shipowner/employer based on the same injuries for which the insurer has already compensated him.”  Ultimately,  the court held that “an insurer acquires a subrogation lien on the employee’s Jones Act recovery for the amount of LHWCA benefits paid.”

The LHWCA system is like other workers’ compensation systems in that it embodies a compromise between employees and employers: in exchange for paying quick and certain compensation regardless of fault, employers are generally absolved from further liability.  But the LHWCA does still preserve the availability of remedies against third parties who might have caused the worker’s injury.  For example, a LHWCA-covered worker may bring an action against a vessel if his injury was caused by the negligence of the vessel.  While it is “possible for an injured worker to obtain a tort recovery from a third party based on injuries for which he has already been compensated by his employer under the LHWCA,” employers still have “a subrogation right to be reimbursed from the worker’s net recovery from a third party for the full amount of compensation benefits paid.”

Injured workers can also sue under the Jones Act, which works  in tandem with the LHWCA: “The Jones Act provides tort remedies to sea-based maritime workers, while the LHWCA providers workers’ compensation to land-based maritime employees.”  This is true even if the injured worker voluntarily received LHWCA payments without a formal award.  Still, the employer is allowed to take “a credit against those items of damages . . . that bear a reasonable relation to the items of loss compensated by workmen’s compensation benefits.”  But, the Fifth Circuit asked in its new published decision whether “an insurer who has made voluntary LHWCA payments to an injured employee on behalf of the employer have a right to be reimbursed from the employee’s settlement of a Jones Act claim against the employer based on the same injuries?”

The answer is, “Yes.”  The Fifth Circuit concluded that there was “no sound reason” to differentiate a carrier’s right of reimbursement against a Jones Act settlement from a carrier’s right of reimbursement against a LHWCA Section 905(b) claim.  Accordingly, the Fifth Circuit held that “an insurer who makes voluntary LHWCA payments to an injured employee on behalf of the employer acquires a subrogation lien on a recovery by the employee in a Jones Act suit against the employer based on the injuries for which the insurer has already compensated him.”

Chenevert v. Travelers Indemn. Co., — F.3d —-, No. 13-60119 (5th Cir. 2014).

Disclosure: Will Bland and Patrick Costello of Mouledoux, Bland, Legrand & Brackett, represented the owner of the construction barge (the injured worker’s employer).

Eleventh Circuit: Seafarer’s Agreement Required Arbitration of Jones Act Claim

Plaintiff, a Honduran citizen, injured his back while working as a mason aboard a Carnival vessel.  The injury required surgery and eventually led to “serious orthopedic and neurological problems, including numbness in both legs, difficulty urinating, need for a catheter, sexual dysfunction, and psychological problems.”  Plaintiff worked for employer under a Seafarer Agreement.  The Agreement included an arbitration clause requiring the arbitration of all disputes (except wage disputes).  After his injury, Plaintiff asserted claims of Jones Act negligence, unseaworthiness, and failure to provide adequate maintenance and cure.  Acting on a motion to compel arbitration filed by the Defendant, the district court “granted the motion, dismissed as moot all other pending motions, and closed the case for administrative purposes.”

Plaintiff appealed to the Eleventh Circuit, which was called upon to answer a jurisdiction question and a substantive question.  First, the court addressed the jurisdiction question, which addressed whether the Eleventh Circuit even had jurisdiction to consider this appeal (with internal citations omitted):

The pertinent question we address in this case is not whether the district court’s administrative closure is the functional equivalent of a dismissal, but rather, whether the district court’s order, on the record before us, ended the litigation on the merits and left nothing more for the district court to do by execute the judgment.  . . .   Although the district court did not dismiss the case, the court’s order left all further merits determinations to the arbitrator.  Thus, the order effectively “end[ed] the litigation on the merits and [left] nothing more for the [district] court to do but execute the judgment.”

. . .

The slight distinction between an administratively closed case and a dismissed case does not resolve the question of finality.  What matters is whether the case, in all practicality, is finished.  In this case, the district court not only administratively closed the case, but it also denied all pending motions as moot and compelled arbitration.  The district court’s order was a functionally final and appealeable decision because it left nothing more for the court to do but execute the judgment.  Accordingly, we conclude that the order compelling Martinez to arbitrate his claims was “a final decision with respect to an arbitration,” and we have appellate jurisdiction.

Second, the Eleventh Circuit addressed the substantive question–namely whether the Seafarer Agreement required arbitration.  Plaintiff argued that the termination provision of the Seafarer’s Agreement had terminated before the dispute arose.  The Eleventh Circuit disagreed, finding that parties can arbitrate “the very issue of ‘arbitrability’ . . . .”  Finally, as an alternative argument, Plaintiff contended that “his claim for medical negligence falls outside the scope of the arbitration clause in his employment contract because it did not arise under the Seafarer’s Agreement.  Again, the court disagreed:

In determining whether a dispute arises out of a contract, “the focus is on whether the tort or breach in question was an immediate, foreseeable result of the performance of the contractual duties.”  Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1218 (11th Cir. 2011) (internal quotation marks omitted).  In Doe, we held that claims arising under the Jones Act “are dependent on [the plaintiff's] status as a seaman employed by the cruise line and the rights that [the plaintiff] derives from that employment status.”  Id. at 1221.  See also O’Boyle v. United States, 993 F.2d 211, 213 (11th Cir. 1993) (“[I]n order to recover damages under the Jones Act, [a plaintiff] must have the status of a seaman.”).  Although the Jones Act dictates Carnival’s duty of care, that duty extends to Martinez only because he was employed by Carnival as a seaman under the contract.  In addition, the terms of the Agreement, which specifically reference[s] Carnival’s obligation to provide medical treatment aboard the vessel or ashore, contemplated that Carnival would provide shoreside medical care for injuries Martinez sustained while on the job.  Accordingly, we conclude that Martinez’s dispute with Carnival clearly arose out of or in connection with the Seafarer’s Agreement and is subject to arbitration.

Martinez v. Carnival Corp., — F.3d —- (2014).