Admiralty/Maritime

July 2, 2019

Fraud, Discovered Too Late, Cannot Reopen Settled Injury Case

64-photo-3_13_19-768x1024 Worker’s compensation (WC) is a system designed to compensate workers for injuries that occur on the job. The system also helps to spread the risk of loss among numerous employers, similar to an insurance arrangement that employers pay into. Still, employers have an interest in ensuring that WC claims are valid in order to keep overall costs down. As a result, WC cases can lead to bitter disputes between workers and their employers.

Andrew Schmidt was a diver for the Cal-Dive company in Lafayette, Louisiana in 2010 when he suffered a brain injury due to decompression sickness that occurred during a work-related dive. Two years later, Schmidt filed a lawsuit against Cal-Dive alleging that the injury left him permanently disabled. He claimed that the brain injury resulted in a condition that required him to remain in a supine position nearly all the time. Cal-Dive didn’t believe Schmidt’s claim and Cal-Dive hired private investigators to surveil Schmidt for evidence that his claim was fraudulent. The observation turned up nothing favorable for challenging Schmidt’s claim. Schmidt was examined by multiple medical professionals who offered conflicting expert opinions about whether Schmidt was permanently disabled. Shortly before trial, Schmidt and Cal-Dive settled and the trial court dismissed the case.

Even though the matter was settled, Cal-Dive continued to have Schmidt followed by private investigators. The PIs discovered that Schmidt purchased a new car and was observed cutting grass, shopping, driving, and jogging. As a result, Cal-Dive filed for relief from the trial court’s order to dismiss the case under Fed. R. Civ. P. 60(d)(1) so it could amend its original complaint against Schmidt and set aside the settlement. Schmidt filed a motion to dismiss the case for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). The district court denied Cal-Dive’s request to set aside the settlement and refused to permit Cal-Dive to amend the complaint, finding that it would be futile. Cal-Dive appealed.

June 9, 2019

Seaman’s Unrepresented Release Enforced on Appeal of Summary Judgment

by Berniard Law Firm

ship-at-las-palmas-bay-1449622-1024x683 Long considered “wards of admiralty,” courts carefully scrutinize the treatment of seamen, particularly in cases where substantial legal rights are involved. One such case involves the execution of a release with a seaman, particularly when the seaman is unrepresented and in claims of personal injury. Generally, in a personal injury case, a release is a legal agreement that serves to settle the claims between the parties and terminates the injured party’s right to seek damages in court.

So, what is required to uphold such a release? The Louisiana First Circuit Court of Appeal gave us an example in Buras v. Sea Supply. The plaintiff, Mr. Buras, was a seaman injured while working aboard the defendant’s vessel. A month later, Mr. Buras’ doctor cleared him to return to work where, without counsel present, he signed a release settling all claims against the defendants. In addition to the release itself, the evidence included a transcript of the conversation had between Mr. Buras and the defendant at the time of executing the release. This transcript showed that the defendant clearly advised Mr. Buras multiple times of both the consequences of signing the release and his right to have an attorney present. Nevertheless, Mr. Buras signed the release stating he understood he was giving up his legal rights in connection with this claim and declined to speak to an attorney. Nearly a year later, Mr. Buras filed a claim seeking to have the release declared unenforceable; however, the trial court found that because all of Mr. Buras’ claims against the defendants were covered by the release, there were no genuine issues of material fact and, therefore, granted the defendant’s motion for summary judgment, dismissing the case without trial.

The law is well-settled that there is a heavy burden upon one who sets up a seaman’s release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights and appreciation for the consequences. See, e.g., Garrett v. Moore-McCormack Co., 317 U.S. 239, 240 (1942); Stipelcovich v. Sand Dollar Marine, Inc., 805 F.2d 599 (5th Cir. 1986);

April 11, 2019

Louisiana Circuit Court Affirms Dismissal of Emotional Distress Lawsuit in Helicopter Crash Case

by Berniard Law Firm

helicopter-1450413-2-683x1024 For a negligence lawsuit to have any chance of survival, an essential element is to show the plaintiff had damages. Often these damages are obvious physical injuries. Sometimes however, damages claimed are for emotional distress. Due to its intangible nature, emotional distress can be extremely difficult to prove and a lawsuit for such damages can be equally difficult to maintain. In a recent case out of the Parish of Lafayette, a Louisiana man failed to prove all the necessary elements to sustain his emotional distress lawsuit despite the lawsuit centering on a helicopter crash.

Plaintiff Hayward Allen worked on an offshore rig owned by an oil company. Mr. Allen took a helicopter to his job site. Defendant PHI, Inc. (“PHI”) owned and operated the helicopters delivering the employees to the rig. In December 2009, one of PHI’s helicopters rolled over while dropping off some passengers on the rig where Mr. Allen was working. No one was injured in the accident. Mr. Allen did not even see the incident because he was sixty feet below the helipad when it occurred. Because of this incident however Mr. Allen claimed he could no longer work because he was now too afraid of helicopters. Mr. Allen alleged to be suffering from chest pains, sleep problems, anxiety and elevated blood pressure from the emotional distress brought upon him from the helicopter incident. Mr. Allen filed a lawsuit in the Judicial District Court for the Parish of Lafayette. The District Court granted a directed verdict in favor of PHI because Mr. Allen failed to offer any evidence of PHI’s liability or negligence.

A directed verdict is granted only when the evidence overwhelmingly points to one conclusion. See Carter v. Western Kraft Paper Mill, 649 So.2d 541, 544 (La. Ct. App. 1994). The facts must so strongly support judgment in favor of one party that the court must determine reasonable people could not reach a contrary verdict. Directed verdicts do not require the assent of the jury. See La. C.C.P. art 1810. To have any chance at success in a negligence claim, including an emotional distress claim, a plaintiff must show that the defendant was the cause of the plaintiff’s injuries. See La. C.C. art 2315.6.

March 31, 2019

Requirements for Claims under the Oil Pollution Act

by Berniard Law Firm

oil-power-1182675-1-1024x768 Waiting until the last minute to do almost anything is not recommended but it is especially true if you are seeking to bring a claim for damages. That is what some fishermen found out when they sought to bring claims under the Oil Pollution Act of 1990 (OPA) for damages that resulted from an oil spill. The oil spill came from a barge owned by American Commercial Airlines, LLC (ACL) that had been involved in a collision on the Mississippi River in the Port of New Orleans on July 23, 2008.

On July 25, 2011, the fishermen claimants filed an action against ACL in the United States District Court for the Eastern District of Louisiana. The district court denied ACL’s motion for summary judgment but certified to the United States Court of Appeals for the Fifth Circuit two issues of law regarding the requirements for proceeding under OPA. One issue was whether the claimants met the requirements when they did not personally sign the claim forms and did not provide specific requested items in support of their claims. The other issue was whether the claimants had to make a proper presentment at least 90 days before the three year limitation period ran out. The first issue pertained to all claimants but the second issue involved only those claimants who first presented their claims on or after July 22, 2011, because those claimants had not waited the 90 days after first presenting their claims to file an action in order to not be barred by the three year limitation period.

Individuals and entities harmed by an oil spill may file claims for damages under OPA. To promote settlement and avoid litigation, there are specific procedures under OPA that claimants must follow. See Johnson v. Colonial Pipeline Co. , 830 F. Supp. 309 (E.D. Va. 1993). Under OPA’s presentment requirement, claimants must first present their claims to the responsible party and then wait until that party denies all liability or until 90 days from the time of presentment have passed before filing an action against that party. See OPA, 33 U.S.C. § 2713 (2016).

January 29, 2018

Court Affirms Decision for Employer to Pay Injured Employee’s Surgery under Longshore and Harbor Workers’ Compensation Act

by Berniard Law Firm

container-barge-1238820-1024x321 The fate of a claim brought under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) is often determined based upon the weight the Administrative Law Judge (“ALJ”) gives certain evidence. But how should the ALJ weigh conflicting evidence from different sources? This question was recently addressed by the United States Fifth Circuit Court of Appeals in Petron Industries Inc. v. Courville.

Ryan Courville suffered injuries to his thoracic spine while lifting equipment aboard a barge. Because of how Mr. Courville sustained his injury, he was eligible for compensation under the LHWCA. Soon after the injury, Mr. Courville sought medical treatment from multiple different doctors in an effort to alleviate the pain caused by his spinal injury. His initial treating physician recommended physical therapy but did not think surgery was necessary at the time. Mr. Courville, because of his continued pain, sought a second opinion. Mr. Courville’s second physician recommended more physical therapy and prescription medication. Still experiencing pain, Mr. Courville sought a third opinion. Mr. Courville’s third physician, a pain management specialist, tried additional physical therapy, which proved equally unsuccessful. Mr. Courville was then referred back to his second physician who ultimately recommended surgery.

Under the LHWCA, “[o]nce an employee establishes that his injury was work-related, he is entitled to all reasonable and necessary medical expenses related to that injury.” Amerada Hess Corp. v. Director, 543 F.3d 755, 761 (5th Cir. 2008) (citing 33 U.S.C.A. § 907 (2015)). Mr. Courville asked for Petron Industries and American Home Insurance’s (collectively, “the Petitioners”) to pay for the surgery pursuant to the LHWCA. Disagreeing that surgery was necessary, the Petitioners sought additional medical opinions. The Petitioners’ first physician opined that it was “more likely than not” that surgery would be needed. The Petitioners’ second physician stated that surgery would not be needed and that Mr. Courville could return to a “medium duty” job.

November 6, 2017

One Three Letter Word in an Insurance Policy Can Have Six Figure Implications

by Berniard Law Firm

misc-rig-oil-ship-yard-equipme-1468457-1024x768 In the insurance industry, one of the most important issues to consider when determining whether a claim is covered under a policy is the wording of the contract. Whether it is home, auto, life, or, as in this case a marine insurance policy, the exact words of the contract will control whether or not a specific claim will be paid out. Equally important are the laws which will control how those words are interpreted. And in a recent case out of Louisiana, one insured was out of luck over the interpretation of one small word.

In a recent Louisiana case, Union Oil Company of California, which owned an offshore drilling platform near the coast of Louisiana, contracted with Shaw Global Energy Services Inc. (“Shaw”) from Delcambre, Louisiana, to perform sandblasting and painting for the platform. In 2003, Michael Cash, an employee of Shaw, was injured by an employee of Max Welders, Inc. while being transferred by crane from a platform to a supply vessel. Mr. Cash filed a lawsuit against Max Welders, its primary insurance company, and its marine excess insurer, Liberty Insurance Underwriters, Inc. (“Liberty”). During the course of the lawsuit, Liberty notified Max Welders that they were declining to cover the incident with Mr. Cash because the act of ferrying Mr. Cash to and from the platform fell under an exclusion in the excess insurance policy. The exclusion Liberty pointed to was a platform exclusion where they would not cover anything “arising out of the ownership, use or operation of . . . platforms.” Max Welders, the primary insurer, and Mr. Cash settled for the policy limit of one million dollars. But because of the severity of Mr. Cash’s injuries, Max Welders agreed to pay an additional four hundred thousand dollars.

Max Welders brought a cross-claim against Liberty alleging the platform exclusion did not apply and that coverage should be extended to cover the four hundred thousand dollars in excess payment. The United States District Court for the Western District of Louisiana agreed with Max Welders that the platform exclusion did not apply because the word “use” in the insurance policy was ambiguous. The District Court reasoned that because the transferring of Mr. Cash to the vessel was not within the intended purpose of an oil rig platform (extracting energy) that the exclusion did not apply and the insurance company had to pay Max Welders for the four hundred thousand dollars. Liberty appealed to the United States Fifth Circuit Court of Appeal.

July 28, 2017

No Relief in Sight? Work Injury Case Out of Venice, Louisiana is Resurrected by Court of Appeal

by Berniard Law Firm

big-oli-rig-1239227-1024x769 Decisiveness can be an excellent quality, especially in a judge. Court dockets are usually quite full and it can take a very long time for cases to be resolved. Whenever there is a confusion over which law to apply, however, patience is the greater virtue. In a lawsuit, lawyers will often request relief under various laws in hopes that one will bring success. In a recent case out of Venice, Louisiana, the Louisiana Fourth Circuit Court of Appeal reminded an Office of Workers’ Compensation Judge (“WCJ”) just how important patience is when issuing an order in a case with competing theories of recovery.

Shawn Johnson was a mechanic for The Wood Group working on its oil production platforms when he was injured in a boat collision on Grand Pass on March 12, 2014. Grand Pass is a fishing channel, known as “the jump”, which is located close to Venice, Louisiana, in St. Bernard Parish. After the accident, Mr. Johnson filed claims for compensation under both the Louisiana Workers’ Compensation Act (“LWCA”) and the federal Longshore and Harbor Workers’ Compensation Act (“LHWCA”). At a December 19, 2014, hearing, the WCJ dismissed Mr. Johnson’s LWCA claim with prejudice asserting the WCJ lacked jurisdiction because the claim did not fall under the LWCA. The dismissal with prejudice would prohibit Mr. Johnson from refiling his LWCA claim. Mr. Johnson’s LHWCA claim before a federal court was still pending at the time of the dismissal.

In the judgment, the WCJ did not explicitly find that Mr. Johnson’s claim was covered by the LHWCA. Instead, she found that his claim did not fall under the LWCA. In her reasoning, the WCJ said that there is no longer concurrent jurisdiction so if a claim falls under any federal statute, that would preclude a state claim. The WCJ did not wait however for a definitive determination by the federal court on whether Mr. Johnson’s claim fell under the LHWCA. If both claims were dismissed with prejudice Mr. Johnson would be completely deprived of relief. Mr. Johnson appealed the case to the Fourth Circuit only requesting that the case is dismissed without prejudice (meaning it could be refiled) just in case the LHWCA claim did not survive.

July 13, 2017

Louisiana Future Lost Wages Award Reduced Based on Lack of Evidence for Longer Work-Life Expectancy

by Berniard Law Firm

barge-1544176-661x1024 Sometimes we are asked to do a task at work that we do not feel qualified to perform. We think things like, “Hey, that wasn’t in my job description.” Well, that’s essentially what happened to Mark Barto but, unfortunately, attempting to perform his assigned task resulted in a back injury that led Mr. Barto to file a lawsuit.

Mr. Barto worked for Shore Construction, LLC (“Shore”) and was assigned by his company to perform the duties of a rigger on a derrick barge operated by McDermott, Inc. (“McDermott”). Unfortunately, Mr. Barto was met with the rare task of inspecting and providing maintenance on a cable crane. In fact, this type of job is done approximately once every two years. Mr. Barto had no experience providing this kind of maintenance and yet his superiors requested that he assist and then re-spool the cable. Mr. Barto was given no guidance on how to do the task and, according to the affidavits of a crewmember, he was “one of the lowest ranking riggers on the barge.”

To allow himself to effectively complete the task, Mr. Barto set up a makeshift scaffold within the spooling frame, as he seen someone else performing the task do. In this case, he laid a fir board across the frame to stand on in order to reach the cables.

July 9, 2017

Louisiana Seaman Loses Lawsuit Due to Insufficient Evidence and Conflicting Testimony

by Berniard Law Firm

boat-1392202-1024x683 On the sea, a life jacket can save your life. In the courtroom, the life jacket that can save your case is provable and relevant facts. Seaman, Frank Glaze, recently found this to be true when a Louisiana Court dismissed his Jones Act personal injury case due to a lack of evidence.

Mr. Glaze was injured while he performed maintenance on the M/V SNIPE as relief captain for Higman Barge Lines. Mr. Glaze contended that he suffered “numbness in his hands” as he worked with the needle gun. He also claimed elbow, knee, and lower back pain occurred soon after he completed his work. Because of these injuries, Mr. Glaze sued his employer seeking relief under the Jones Act.

First, under “The Jones Act” Mr. Glaze claimed his injuries were the result of nonperformance of a “job safety analysis” and no policy regarding the length of time for a seaman to utilize a needle gun nor methods for proper use. Next, he claimed the M/V SNIPE was an “unseaworthy vessel” because of “unsafe methods of work.” Mr. Glaze further argued that the work technique was unsafe because: (1) the “job safety analysis” was not completed; (2) there were no “housekeeping” procedures in place; and (3) he was only allotted a small window of time to “chip and grind the rub rail.”

July 4, 2017

Slip and Fall Case From Eastern District of Louisiana Focuses on Weight of Evidence and Flip Flops

by Berniard Law Firm

feet-in-a-stream-1395322-1024x768 Evidence in a trial can take almost any shape or form. For murder trials, people think of weapons. For fraud cases, perhaps incriminating documents comes to mind. For a personal injury case, the options are almost limitless yet likely “flip flop” is not the first image that pops up; especially in a maritime case. Yet in this case, Garrard Myers makes quite the fuss over the state of his sandals.

Mr. Myers was working aboard Hercules Offshore Services, L.L.C.’s (“Hercules”) drilling rig in 2013 when he injured his left ankle coming out of the shower. Mr. Myers subsequently filed a lawsuit against Hercules pursuant under the Jones Act and general maritime law. See 46 U.S.C. § 30104 et. seq. Mr. Myers alleged that Hercules’ drilling rig was unseaworthy and that Hercules was negligent in failing to provide handrails or slip-resistant surfaces in the vessel’s showers.

At trial, conflicting facts were presented on the cause of Mr. Myers injury. Mr. Myers stated that he simply slipped on the shower floor. Hercules representative Randall O’Brien testified however that Mr. Myers stated his flip flop broke and then he fell in the shower. Mr. O’Brien also testified that an incident report stated that Mr. Myer’s shoe broke and Mr. Myers signed this report. Moreover, Mr. Myers admits to signing the report yet denies having read the portion of the report about his broken flip flop. Mr. Myers at trial denied that his flip-flop was ever broken or that he communicated about his flip flops to anyone. Mr. Myers even brought the supposed shower shoes to trial to show they were intact.