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Lewis v. Nereus Shipping

United States District Court, E.D. Louisiana

November 9, 2018

DARRY LEWIS
v.
NEREUS SHIPPING ET AL.

         SECTION “R” (5)

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE

         Before the Court is intervenor John W. Stone Oil Distributor, LLC's motion for summary judgment seeking indemnity from defendants for its maintenance and cure payments to plaintiff Darry Lewis. Because defendants have raised an issue of material fact as to Stone Oil's contributory negligence, the court denies the motion.

         I. BACKGROUND

         This case arises out of a workplace accident that occurred on June 21, 2016.[1] Intervenor Stone Oil is a business that provides bunker fuel to commercial vessels on the Mississippi River.[2] On the day of the accident, Lewis, an employee of Stone Oil, was transferring diesel fuel from Stone Oil's barge to the M/V LACONIC, a vessel owned by defendant Blue Rock Shipping Company and operated by defendant Nereus Shipping.[3] As Lewis was fueling, he had to communicate with crew members of the M/V LACONIC to determine when to shut off the flow of diesel fuel from the barge.[4] At some point during the task, Lewis looked down.[5] A crew member of the M/V LACONIC threw his hard hat from the deck of the vessel to the deck of the barge in an attempt to get Lewis's attention.[6] The hard hat struck Lewis on the head, and he was knocked unconscious.[7] Lewis was not wearing a hardhat, and Stone Oil had no policy requiring him to wear one.[8] After the incident, Stone Oil made maintenance, cure, and unearned wage payments to Mr. Lewis for injuries that it determined were the result of the accident.[9]

         On April 7, 2017, Lewis filed a complaint in the Middle District of Louisiana against Nereus.[10] He claims that Nereus's negligence caused his injuries, and that it is therefore liable to him for damages.[11] Lewis later amended his complaint to add Blue Rock as a second defendant.[12] Stone Oil filed a motion to intervene on November 17, 2017, which was granted on December 20, 2017.[13] In the interim, on December 12, 2017, this case was transferred to this district.[14] Stone Oil's intervenor complaint alleges that Nereus must indemnify it for the maintenance and cure and unearned wage payments that it made to Lewis, because Nereus is at fault for the accident and the resulting costs to Stone Oil.[15] On October 1, 2018, Stone Oil filed this motion for summary judgment on its indemnity claim against Nereus.[16]Lewis, Blue Rock, and Nereus oppose the motion.[17]

         II. LEGAL STANDARD

         Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. A dispute about a material fact is genuine “if the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322).

         III. DISCUSSION

         Stone Oil argues that it had no fault in causing Mr. Lewis's injury, and that Nereus, through its crew member, is at fault for Lewis's injuries.[18] It therefore argues that Nereus must indemnify it for the full amount of the maintenance and cure payments and the unearned wage payments that it made to Lewis.[19] In response, defendants and Lewis contend that Stone Oil is contributorily negligent for failing to require Lewis to wear a hardhat that could have reduced or prevented his injuries, and that this alleged contributory negligence raises an issue of material fact.[20]

         Contributory negligence is an affirmative defense that a defendant must plead in his answer to avoid waiver. Fed.R.Civ.P. 8(c)(1) (requiring defendants to “affirmatively state any avoidance or affirmative defense” including contributory negligence); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (3d ed. 2018) (“It is a frequently stated proposition of virtually universal acceptance by the federal courts that a failure to plead an affirmative defense as required by Federal Rule 8(c) results in the waiver of that defense and its exclusion from the case.”). Stone Oil filed an intervenor complaint against Nereus on December 20, 2017.[21] Nereus has failed to respond to the allegations in the complaint, including to plead contributory negligence.

         But the Fifth Circuit often allows litigants to raise affirmative defenses that were improperly pled when the opposing party has adequate notice of the defense and an opportunity to respond to it. Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983) (“Where the matter is raised in the trial court in a manner that does not result in unfair surprise, however, technical failure to comply precisely with Rule 8(c) is not fatal.”) (citing Jones v. Miles, 656 F.2d 103, 107 n.7 (5th Cir. 1981)); Aunt Sally's PralineShop, Inc. v. United Fire & Cas. Co., Inc., 418 Fed.Appx. 327, 330 (5th Cir. 2011) (“[I]t is left up to the discretion of the trial court to determine whether the party against whom the unpleaded affirmative defense has been raised has suffered prejudice or unfair surprise.”); Solomon v. Spalitta, 484 Fed.Appx. 883, 885 (5th Cir. 2012) (“[D]efenses raised for the first time in motions for summary judgment may, under the proper circumstances, be considered.”). Here, Stone Oil did not suffer prejudice ...


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