Fifth Circuit Affirms “Take Nothing” Jury Verdict in Jones Act Suit

Plaintiff filed suit against his Jones Act employer, Cheramie Marine, L.L.C., alleging negligence and seeking maintenance and cure after an alleged injury on one of its utility vessels. Plaintiff alleged that on July 18, 2014, he was injured as a result of the captain’s decision to travel through high seas. Cheramie put on contrary evidence that the waves were not violent and that plaintiff had made contradictory statements that he, in fact, did not fall and that his alleged back pain was the result of being seasick. The captain testified at trial that plaintiff never reported having any kind of accident. Cheramie’s medical expert also offered testimony at trial about two different MRI films taken of plaintiff’s back, one taken prior to his alleged injury and the other taken after the injury. Cheramie’s expert offered his opinion that the pre-injury MRI actually looked worse than the one taken after the alleged accident. After a jury entered a “take nothing” verdict on plaintiff’s claims, plaintiff appealed to the United States Court of Appeals for the Fifth Circuit.

 

Prior to appealing, plaintiff did not file a motion for a judgment as a matter of law or a motion for new trial. Accordingly, on appeal, the Fifth Circuit was limited in what it could review. Review for sufficiency of the evidence was not an option because of plaintiff’s failure to move for judgment as a matter of law or new trial. The only review available was a challenge to the jury instructions. One of the questions on the jury verdict form asked the jury: “(1) Do you find from a preponderance of the evidence that plaintiff had an accident on July 18, 2014?” In response to this question, the jury answered “no.” On appeal, plaintiff argued that the word “accident” was confusing to the jury because, among other reasons, it may have given them the impression that it was something that happened without fault. Applying an abuse of discretion standard in reviewing the challenge to the jury verdict form, the Fifth Circuit found no reversible error in the inquiry as to whether plaintiff had an accident because it fairly presented the issue of liability to the jury.

 

Plaintiff also challenged the trial court’s decision to allow Cheramie’s medical expert to offer an opinion about the pre-incident MRI because the actual film of the MRI was not produced prior to trial. However, the pre-incident MRI was discussed in the expert’s Rule 26 expert report that was disclosed seven months prior to trial and the opinions offered in that report mirrored the testimony offered at trial. The Fifth Circuit concluded that the district court did not err in allowing the expert to testify consistent with his report while not admitting the actual MRI films into evidence.

 
Bosarge v. Cheramie Marine, L.L.C., 2017 WL 105891 (5th Cir. 2017)

Punitive Damages Not Available For Failure To Pay Maintenance & Cure

In a case of first impression, the United States District Court for the Western District of Washington has held that punitive damages for the failure to pay maintenance & cure are not available where seaman’s status is reasonably disputed.

Plaintiff was a pile driver hired to work in the construction of a wharf for the federal government. He was assigned to work in connection with “flexi-floats,” which are used as floating work platforms in maritime construction. He alleged he injured his back in the course of his employment.

Plaintiff sued under the Jones Act and sought punitive damages for the failure to pay maintenance & cure. The employer filed a Motion for Summary Judgment seeking dismissal of the punitive damages claim. Whether Plaintiff was a seaman was disputed and the court previously denied Plaintiff’s Motion for Summary Judgment as to whether he was a seaman. The court held:

“Because reasonable minds could differ on whether Plaintiff’s duties rendered him a seaman, no rational juror could find that Defendants’ opposition to maintenance and cure was in bad faith. Therefore, the Court grants Defendants’ motion for summary judgment and finds that punitive damages are unavailable for Defendants’ allegedly wrongful refusal to pay maintenance and cure.”

Ward v. Ehw Constructors, U.S.D.C. W.D.WA. No. C15-5338

Eastern District of Louisiana Excludes Pre-Trial Surveillance for Failure to Disclose

Plaintiff filed a Jones Act claim against several defendants, including barge drilling contractor, Baywater Drilling, LLC (“Baywater”) and oil services company Frank’s International, LLC (“Frank’s”).  The matter was initially set for trial in April 2015, but was continued several times.  The final continuance, granted in August 2016, set the trial for October 31, 2016 with an order that “no further discovery shall be conducted and no motions shall be filed without leave of Court.”

 

On October 2, 2016, Baywater and Frank’s conducted targeted surveillance that revealed Plaintiff working on his truck, using a handheld jack to jack up his truck, and physically lying under his truck.  This video was produced to Plaintiff on October 19, 2016, which prompted Plaintiff to file a Motion to Exclude.  At no time was the court provided with the surveillance video prior to Plaintiff’s motion.  Further, at no time did the defendants move to amend the pretrial order to include the videographer as a witness or the video itself as an exhibit.  The court granted Plaintiff’s motion to exclude.

 

In granting Plaintiff’s motion, the court cited Chaisson v. Zapata Gulf Marine Co., 988 F.2d 513 (5th Cir. 1993), which held that surveillance evidence is considered substantive evidence that is subject to discovery and that failure to timely disclose it can lead to its exclusion.  The court held that inclusion of the surveillance footage would be highly prejudicial to Plaintiff constituting the type of surprise that Chaisson was intended to prevent.

 

Smith v. Baywater Drilling, LLC, et al

Drilling Rig Exclusion Precluded Insured’s Reimbursement Claim Against Excess Insurer

The U.S. Fifth Circuit Court of Appeals recently addressed an insurance coverage question involving an excess insurer and an offshore injury.  The Plaintiff was injured while working on a drillship in the Gulf of Mexico.  Plaintiff filed a lawsuit in 2011 pursuant to the Jones Act and general maritime law in the U.S. District Court for the Western District of Louisiana.  Later that year, his employer was named as a third party defendant.  The employer filed cross claims against its primary insurer in 2012 and against its excess insurer 2014.  The Jones Act employer eventually settled with the Plaintiff, but maintained its claims for reimbursement against its two insurers.

 

The excess insurer moved for summary judgment and argued the excess insurance policy excluded coverage.  Specifically, the policy contained an exclusion for “any liability or expense arising out of the ownership, use or operation of drilling rigs, drilling barges, drilling tenders, platforms, flow lines, gathering stations and/or pipelines, but this exclusion shall not apply to craft serving the foregoing such as crew, supply, or utility boats, tenders, barges or tugs.”  The District Court agreed the injury occurring on a drillship fell within this exclusion and dismissed the employer’s claim for reimbursement against the excess insurer.  The employer appealed to the Fifth Circuit.

 

On appeal, the employer argued in part that the excess insurer waived coverage defenses by not raising them until 2014 and not issuing a reservation of right letter.  Under Louisiana law, waiver occurs when there is 1) an existing right, 2) knowledge of its existence, and 3) an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.  The Court found the excess insurer satisfied the first two elements by possessing the coverage defense and having knowledge of the accident as early as 2011.  The employer argued that the excess insurer’s conduct of not raising the coverage defense for three years satisfied the third element and effectively waived the insurer’s right to assert a coverage defense.  The Fifth Circuit determined that because the excess insurer was not made a party to the case until three years after the lawsuit being filed, there was no evidence that the excess insurer had assumed defense of the employer with the intention or conduct of eventually denying coverage.  In other words, the insurer’s conduct prior to being brought into the lawsuit did not create a belief that it intended to waive the coverage defense, which was asserted in its initial filings.  Thus, the excess insurer had not waived its right to lodge a coverage defense and the Fifth Circuit affirmed the dismissal of the employer’s claim against its excess insurer.

 

Richard v. Dolphin Drilling