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Caldwell v. St. Charles Gaming Co.

Court of Appeals of Louisiana, Third Circuit

July 3, 2019

DON CALDWELL, INDIVIDUALLY, AND SHERONDA CALDWELL, INDIVIDUALLY
v.
ST. CHARLES GAMING COMPANY D/B/A ISLE OF CAPRI CASINO-LAKE CHARLES

          SUPERVISORY WRITS FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2016-1333 HONORABLE SHARON D. WILSON, DISTRICT JUDGE

          Kevin L. Camel Cox, Cox, Filo, Camel & Wilson, LLC, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Don Caldwell Sheronda Caldwell.

          Evans Martin McLeod David I. Clay, II Phelps Dunbar, LLP, COUNSEL FOR DEFENDANT/APPLICANT: Grand Palais Riverboat, LLC.

          Court composed of Ulysses G. Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Elizabeth A. Pickett, Billy H. Ezell, Shannon J. Gremillion, Phyllis M. Keaty, John E. Conery, D. Kent Savoie, Van H. Kyzar, Candyce G. Perret, and Jonthan W. Perry, Judges.

          JOHN D. SAUNDERS JUDGE.

         18-868

         The defendant-relator, St. Charles Gaming Company, Inc., d/b/a Isle of Capri Casino Lake Charles, seeks supervisory writs from the judgment of the Fourteenth Judicial District Court, the Honorable Sharon Darville Wilson presiding, which denied its motion for summary judgment.

         The plaintiffs-relators, Don Caldwell and Sheronda Caldwell, seek supervisory writs from the judgment of the Fourteenth Judicial District Court, the Honorable Sharon Darville Wilson presiding, which denied their cross motion for summary judgment.

         18-915

         STATEMENT OF THE CASE

         The instant case arises for injuries allegedly sustained by plaintiff, Don Caldwell, while operating a scissor lift on a riverboat casino, the Grand Palais Casino (Grand Palais), moored in Lake Charles, on April 9, 2015. Don and his wife, Sheronda Caldwell (Plaintiffs), filed suit against his employer, St. Charles Gaming Company, L.L.C. (Defendant), under the Jones Act. The Defendant filed a motion for summary judgment on October 27, 2017, on the basis that Don was not a Jones Act seaman at the time of the incident, because he had no connection to a vessel in navigation that was substantial in nature and was never exposed to the perils of the sea. Likewise, the Plaintiffs filed a cross motion for summary judgment on the basis that the Grand Palais was a vessel at the time of the incident for the purposes of their Jones Act claim. Both motions were denied by the trial court following a hearing on September 17, 2018. The parties are now before this court on writs seeking review of the trial court's rulings.

         SUPERVISORY RELIEF

         The requirement of irreparable injury is met in this case in light of Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981). When the overruling of an exception is arguably incorrect, when a reversal will terminate the litigation, and when there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits.

         ON THE MERITS

         18-868

         The defendant argues that the trial court failed to follow this court's controlling precedent in Benoit v. St. Charles Gaming Company, Inc., 17-101 (La.App. 3 Cir. 11/8/17), 230 So.3d 997, writ denied, 17-2051 (La. 2/2/18), 233 So.3d 615, cert. denied, __U.S.__, 139 S.Ct. 104 (2018). Benoit was allegedly injured while working as a deck hand on the Grand Palais Casino moored in Lake Charles on August 28, 2013. He and his wife filed suit against St. Charles Gaming Company, Inc., under the Jones Act. St. Charles moved for summary judgment, asserting that the Grand Palais was not a vessel under general maritime law. The Plaintiffs filed a cross motion for summary judgment on the same issue. The trial court found that the Grand Palais was a vessel, granted summary judgment in favor of the Plaintiffs and denied St. Charles' motion.

         On appeal, this court found that the Grand Palais was not a vessel under general maritime law:

The Grand Palais' primary purpose is dockside gambling. For more than sixteen years, it has not engaged in any maritime activity and has been moored at the same location with all operations required for its gaming activities operated via land-based services. It is possible the Grand Palais could be returned to service as a vessel; however, the evidence establishes that for more than sixteen years, it has been indefinitely moored to provide for and maintain its primary purpose of riverboat gaming. Thus, although the Grand Palais was originally designed to transport people over water, we find that as a result of the changes to its physical characteristics, its purpose, and its actual function over the past sixteen years, it is no longer a vessel.
In reaching this conclusion, we are cognizant that a vessel "and its crew do not move in and out of Jones Act coverage" based on the vessel's activities at any given moment. Stewart [v. Dutra Const. Co.], 543 U.S. 481, 125 S.Ct. 1118');">125 S.Ct. 1118 [(2005)]. The change in the Grand Palais' purpose and function, however, has exceeded sixteen years. Importantly, due to these changes, Mr. Benoit has not been subjected to "the special hazards and disadvantages" the Jones Act was enacted to remedy. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104, 66 S.Ct. 872, 882, 90 L.Ed. 1099 (1946).
To qualify as a Jones Act seaman, Mr. Benoit must prove that he works on a vessel. Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). Our determination that the Grand Palais is not a vessel precludes proof of this requirement.

Id. at 1001.

         Judge Amy issued a concurring opinion, wherein he added:

I agree with the majority that application of the analysis required in Lozman v. City of Riviera Beach, Fla., 568 U.S. 115, 133 S.Ct. 735, 184 L.Ed.2d 604 (2013) indicates that this riverboat is not a "vessel" for purposes of 1 U.S.C. § 3. Observing that Section 3 defines a "vessel" as "an 'artificial contrivance . . . capable of being used . . . as a means of transportation on water[, ]'" the Supreme Court explained that "a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the [structure's] physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water." Id. at 121, 133 S.Ct. 735.
As explained in the majority review, this riverboat undoubtedly includes many of the physical characteristics and activities of a vessel as described in Lozman. It has a crew, the capacity of self-propulsion, and it features a steering mechanism. Yet, those physical characteristics must be viewed alongside the fact that this riverboat has not been engaged in the physical activities of transport since it became moored for operation as a dockside gaming facility in 2001. Given that obvious and consistent mooring, as well as the fact that patrons enter the riverboat from the land-based pavilion by an entranceway described by the Engineer as approximately "40-by-40," I find that the reasonable observer would view the remaining physical characteristics as mere artifacts creating the superficial façade of a means of transport.

Id. at 1002 (alteration in original).

         This writer dissented, finding that the riverboat was a vessel. I reasoned that the riverboat was designed for navigation, was capable of navigation, and had been used in navigation. "Frequency of ...


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