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Rousse v. United Tugs, Inc.

Court of Appeals of Louisiana, Fourth Circuit

December 20, 2017

JORDY ROUSSE
v.
UNITED TUGS, INC.

         APPEAL 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

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins

          Joy Cossich Lobrano, Judge

          In 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.

         On May 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.

         On 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), [1] 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.

         On 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.

         Before 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.

          The 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.

         "The 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.

         When 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.

          Here, 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.

         Courts 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).

         "After 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.

         The 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 Jurisdiction."
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 ...

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