DON CALDWELL, INDIVIDUALLY, AND SHERONDA CALDWELL, INDIVIDUALLY
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
L. Camel Cox, Cox, Filo, Camel & Wilson, LLC, COUNSEL FOR
PLAINTIFFS/RESPONDENTS: Don Caldwell Sheronda Caldwell.
Martin McLeod David I. Clay, II Phelps Dunbar, LLP, COUNSEL
FOR DEFENDANT/APPLICANT: Grand Palais Riverboat, LLC.
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.
D. SAUNDERS JUDGE.
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.
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
OF THE CASE
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
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.
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.
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
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.
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
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).
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 ...