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Smith v. H&E Tugs LLC

Court of Appeals of Louisiana, Fourth Circuit

October 24, 2018


          APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 59-044, DIVISION "B" Honorable Michael D. Clement

          Gary A. Hemphill Jeremy T. Grabill PHELPS DUNBAR LLP COUNSEL FOR APPELLANT

          James D. Bercaw Douglas Pugh Matthews KING & JURGENS, LLC COUNSEL FOR APPELLEE

          (Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins)

          Tiffany G. Chase Judge

         Appellant, O'Brien's Response Management Inc. (hereinafter "ORM"), appeals the trial court's judgment granting the Appellee, Center for Toxicology and Environmental Health, L.L.C.'s (hereinafter "CTEH") motion for summary judgment, dismissing with prejudice the third party demand filed by ORM. For the reasons that follow, we reverse the trial court's judgment and remand the matter for further proceedings.

         Relevant Factual and Procedural History

         On April 20, 2010, the Deepwater Horizon drilling rig exploded, spilling millions of gallons of oil into the Gulf of Mexico. As a result, BP Exploration and Production, Inc., and/or BP America Production Company, (hereinafter "BP") engaged numerous companies to assist in performing response services. Ultimately, thousands of vessels participated. One such entity, Lawson Environmental Service, L.L.C. (hereinafter "Lawson"), was contracted by BP to assist. BP also engaged ORM to provide personnel and oil spill response services.[1]ORM then subcontracted with CTEH, who supplied workers for the cleanup effort. CTEH employed Plaintiff, Nathanial Smith (hereinafter "Smith"), to work as a safety observer. On October 7, 2010, while working aboard the vessel, Captain Cristo (hereinafter "Cristo"), Smith was injured when the Boomer II rear ended the Cristo.[2]

         Smith filed a petition for damages alleging claims under general maritime law against Lawson. In response, Lawson filed a third party demand against ORM, seeking indemnification. Although ORM agreed to indemnify Lawson, it filed a third party demand against CTEH, pursuant to a separate contractual indemnity agreement and sought contractual defense, indemnity, and insurance coverage. Smith subsequently reached a settlement and dismissed all claims against all parties with prejudice. Only ORM and CTEH's claims against each other remain.

         CTEH filed a motion for summary judgment, seeking a determination that Smith is an employee under 33 U.S.C. § 901 et seq., the Longshore Harbor Workers' Compensation Act (hereinafter "LHWCA"), and requesting that the indemnity agreement between ORM and CTEH be declared void.[3] After taking the matter under advisement, the trial court granted CTEH's motion for summary judgment, finding Smith was an employee under the LHWCA and dismissed ORM's third party demand. In the trial court's reasons for judgment, it concluded that Smith failed to meet the requirements to qualify as a Jones Act seaman for the following reasons: (1) Smith did not contribute to the function of the vessel; (2) Smith was not a Jones Act seaman connected to a fleet of vessels under common control of the U.S. government; (3) Smith had no substantial connection to the vessel in duration and nature, based upon Smith's statement "that his work as a safety observer was done on the beaches that were being cleaned." This appeal followed.

         Applicable Law

         An appellate court reviews a trial court's disposition on a motion for summary judgment using the de novo standard of review. Navarre v. Kostmayer Const. Co., Inc., 2010-0490, p. 2 (La.App. 4 Cir. 11/24/10), 52 So.3d 921, 922. Summary judgment "is designed to secure the just, speedy, and inexpensive determination of every action." La. C.C.P. art. 966(A)(2). Therefore, after 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). Initially, the burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). Once the mover presents prima facie evidence that there is no genuine issue as to material fact, the burden shifts to the nonmoving party. Atkinson v. Harbor Homeowners Ass'n, Inc., 2016-1141, p. 5 (La.App. 4 Cir. 5/24/17), 221 So.3d 185, 188.

         Both the LHWCA and the Jones Act were developed to provide compensation coverage to maritime employees injured during the course and scope of their employment. Orgeron v. Avondale Shipyards, Inc., 561 So.2d 38 (La.1990). Both statutes offer mutually exclusive recovery procedures. Id. at 40-41. Accordingly, factual disputes often arise regarding which statute applies. Notably, the Jones Act requires a more heightened burden than that needed to qualify as a LHWCA employee. While the term "seaman" is not defined in the Jones Act, the United States Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 2190, 132 L.Ed.2d 314 (1995), articulated a two part test. To find Smith was a seaman under the Jones Act, the evidence must demonstrate: (1) the employee's duties contributed to the function of the vessel or to the accomplishment of its mission; and (2) the employee must have a connection to a vessel in navigation, or to an identifiable group of such vessels, that is substantial in both duration and nature. Id. The purpose of the Jones Act test is to limit recovery under the Act to employees whose work "regularly expose[s] them to the perils of the sea." Id. "Jones Act coverage should not be withheld because the vessels are not under the employer's common ownership or control, when claimants are continuously subjected to the perils of the sea and engaged in classical seaman's work." Wisner v. Prof'l Divers of New Orleans, 98-1755 (La. 3/2/99), 731 So.2d 200, 203. Further, "[t]he duration of a worker's connection to a vessel and the nature of the worker's activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time." Chandris, 515 U.S. at 370, 115 S.Ct. at 2190-91. The general rule for making this determination is 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. This figure is only a guideline that allows a court to take the question from the jury when a worker has a clearly inadequate temporal connection to the vessel." Id. at 349, 115 S.Ct. at 2180. Even if a maritime employee's assignment on a vessel is brief, that fact alone does not preclude seaman status. Id. at 372, 115 S.Ct. at 2191-92. "[S]eaman status . . . should not be some immutable characteristic that maritime workers who spend only a portion of their time at sea can never attain." Id., 115 S.Ct. at 2192.

         The determination as to seaman status is a mixed question of law and fact. Waller v. Am. Seafoods Co., 97-0302, p. 2 (La.App. 4 Cir. 10/1/97), 700 So.2d 1306, 1307. Thus, the inquiry is inherently fact specific, depending on the particular circumstances of each case. Id., p.3, 700 So.2d at 1308. Additionally, a court's interpretation of statutory terms is a question of law. Id., p. 2, 700 So.2d at 1307. If reasonable persons applying the proper legal standard could differ as to seaman status, it then becomes a question for the trier of fact. Id., p. 2, 700 So.2d at 1307-08. Only when it can be said that the undisputed facts demonstrate a "maritime worker ...

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