FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 61-674, DIVISION
"A" Honorable Kevin D. Conner, Judge
Timothy J. Young Megan C. Misko Tammy D. Harris THE YOUNG
FIRM COUNSEL FOR PLAINTIFF/APPELLANT
William B. Schwartz Alex S. Aughtry BALDWIN HASPEL BURKE
& MAYER, L.L.C. COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Sandra Cabrina Jenkins
Cossich Lobrano, Judge
this maritime personal injury case, plaintiff/appellant,
Jordy Rousse ("Rousse"), appeals the district
court's April 19, 2017 judgment granting the motion for
partial summary judgment filed by defendant/appellee, United
Tugs, Inc. ("United"), and dismissing Rousse's
claims for maintenance and cure. For the reasons that follow,
we convert the appeal to an application for supervisory writ,
grant the writ application, and deny relief.
15, 2014, Rousse injured his back in a work-related accident
while performing his duties as a deckhand aboard a vessel
owned by United, his employer. On September 19, 2014, Rousse
filed a petition for damages against United, alleging claims
arising under the Jones Act, General Maritime Law, and the
saving to suitors clause. United paid Rousse maintenance and
cure following his accident, during which time Rousse
underwent two lumbar spine surgeries.
February 14, 2017, United filed a motion for partial summary
judgment raising a McCorpen defense. United argued
that, pursuant to McCorpen v. Cent. Gulf S.S. Corp.,
396 F.2d 547, 548 (5th Cir. 1968),  Rousse is precluded from
receiving maintenance and cure because he concealed from his
employer a preexisting medical condition. United contended
that, on October 10, 2013, prior to hiring Rousse, United
required Rousse to undergo a pre-employment physical and
complete a prior medical history questionnaire form. When
completing the form, Rousse failed to disclose prior back
injuries and medical treatment for prior back complaints.
April 19, 2017, the district court granted partial summary
judgment and dismissed Rousse's claims against United for
maintenance and cure. This appeal followed. Rousse sets forth
a single assignment of error on appeal, contending that the
district court erred in granting partial summary judgment.
we discuss the judgment in question, we must first address
whether this court has appellate jurisdiction to review this
matter. The district court judgment dismissed some, but not
all, of Rousse's claims against United. Specifically, the
judgment only dismissed Rousse's claims for maintenance
and cure, but certain other claims against United, including
claims of negligence and unseaworthiness, remain set for
trial on the merits. Accordingly, the April 19, 2017 judgment
is a partial judgment within the ambit of La. C.C.P. art.
1915(B), which provides:
(1) When a court renders a partial judgment or partial
summary judgment or sustains an exception in part, as to one
or more but less than all of the claims, demands, issues, or
theories against a party, whether in an original demand,
reconventional demand, cross-claim, third-party claim, or
intervention, the judgment shall not constitute a final
judgment unless it is designated as a final judgment by the
court after an express determination that there is no just
reason for delay.
(2) In the absence of such a determination and designation,
any such order or decision shall not constitute a final
judgment for the purpose of an immediate appeal and may be
revised at any time prior to rendition of the judgment
adjudicating all the claims and the rights and liabilities of
all the parties.
district court did not designate the judgment as final for
the purpose of an immediate appeal; thus, this is not a
final, appealable judgment, and this Court lacks appellate
jurisdiction to review the judgment.
proper procedural vehicle to seek review of an interlocutory
judgment that is not immediately appealable is an application
for supervisory writ." Delahoussaye v. Tulane Univ.
Hosp. & Clinic, 2012-0906, 12-0907, p. 4 (La.App. 4
Cir. 2/20/13), 155 So.3d 560, 562 (citing La. C.C.P. art.
2201). "[T]he difference between supervisory
jurisdiction and appellate jurisdiction is that the former is
discretionary on the part of the appellate court while the
latter is invocable by the litigant as a matter of
right." Livingston Downs Racing Ass'n, Inc. v.
La. State Racing Comm'n, 96-1215, p. 3 (La.App. 4
Cir. 6/5/96), 675 So.2d 1214, 1216.
confronted with a judgment in an appellate context that is
not final and appealable, this Court is authorized to
exercise its discretion to convert that appeal to an
application for supervisory review. See Stelluto v.
Stelluto, 2005-0074, p. 7 (La. 6/29/05), 914 So.2d 34,
39 ("the decision to convert an appeal to an application
for supervisory writs is within the discretion of the
appellate courts"). This Court has in similar
circumstances ordinarily but not necessarily "converted
'appeals' of non-appealable judgments to applications
for supervisory writs in those cases in which the motions for
appeal were filed within the thirty-day period allowed for
the filing of applications for supervisory writs."
Favrot v. Favrot, 2010-0986, p. 6 (La.App. 4 Cir.
2/9/11), 68 So.3d 1099, 1104. See also Uniform
Rules, Courts of Appeal, Rule 4-3.
the judgment was signed on April 19, 2017, and the motion for
appeal was filed on May 2, 2017, which is within the
thirty-day time period allowed for the filing of an
application for supervisory writ. We thus exercise our
discretion and convert the instant appeal to an application
for supervisory writ. See, e.g., Zeigler v. Hous. Auth.
of New Orleans (HANO), 2015-0626, pp. 3-4 (La.App. 4
Cir. 3/23/16), 192 So.3d 175, 178.
of appeal review a grant of a motion for summary judgment
de novo using the same criteria district courts
consider when determining if summary judgment is proper.
Kennedy v. Sheriff of E. Baton Rouge, 2005-1418, p.
25 (La. 7/10/06), 935 So.2d 669, 686 (citations omitted). The
summary judgment procedure is favored in Louisiana. La.
C.C.P. art. 966(A)(2).
an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as
to material fact and that the mover is entitled to judgment
as a matter of law." La. C.C.P. art. 966(A)(3).
Regarding the burden of proof on summary judgment, La. C.C.P.
art. 966(D)(1) states:
The burden of proof rests with the mover. Nevertheless, if
the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary
judgment, the mover's burden on the motion does not
require him to negate all essential elements of the adverse
party's claim, action, or defense, but rather to point
out to the court the absence of factual support for one or
more elements essential to the adverse party's claim,
action, or defense. The burden is on the adverse party to
produce factual support sufficient to establish the existence
of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.
Louisiana Supreme Court has explained our state courts'
"concurrent" subject matter jurisdiction in
maritime cases as follows:
As a general proposition, maritime law in the United States
is federal law. This proposition is based upon Article III,
§ 2, cl. 1 of the United States Constitution, which
provides that the federal judicial power "shall extend
... to all Cases of admiralty and maritime
Notwithstanding, federal-court jurisdiction over maritime
cases has not been entirely exclusive. Section 1333(1) of
Title 28 of the United States Code, which is the successor to
the Judiciary Act of 1789, bestows upon the federal district
courts "original jurisdiction, exclusive of the courts
of the States, " of admiralty and maritime cases,
"saving to suitors in all cases all other remedies
to which they are otherwise entitled." The
emphasized language, commonly referred to as the "saving
to suitors" clause, has been interpreted as giving
states the concurrent power to hear in personam