Articles Posted in Offshore Accidents

helicopter-1450413-2-683x1024For 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.  

oil-power-1182675-1-1024x768Waiting 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).

container-barge-1238820-1024x321The 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.

misc-rig-oil-ship-yard-equipme-1468457-1024x768In 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.    

big-oli-rig-1239227-1024x769Decisiveness 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.

money-1537576-1-768x1024What if you are injured, hire a lawyer, and that lawyer fails to sufficiently work on your case? Outrage ensues and you may choose to fire that lawyer and hire a second.  But is that first lawyer entitled to payment if you happen to win and receive an award in your case? In a recent Louisiana case, the Fifth Circuit Court of Appeals decided that the answer can be in the affirmative.  

After David Corey was the injured, he hired Salvador Brocato and Lionel Hutton to handle his personal injury lawsuit. In the two years that Mr. Brocato and Mr. Hutton handled Mr. Corey’s case, the attorneys did little work on his case: failing to hire an investigator,  failing to adequately prepare Mr. Corey for his deposition, and failing to hire experts as well as other faults. Mr. Corey fired Mr. Brocato and Mr. Hutton and subsequently hired Arnold & Itkin, LLP, to handle his case.  Arnold & Itkin worked on Mr. Corey’s case, and eventually secured a settlement of $2,187,500, with $875,000 awarded in attorneys’ fees. Mr. Brocato and Mr. Hutton intervened seeking a share of the amount of the attorneys’ fees awarded for the work they had done on Mr. Corey’s case prior to termination. The United States District Court for the Eastern District of Louisiana awarded Mr. Brocato and Mr. Hutton 20% of the awarded attorneys’ fees. The judge calculated the percentage based on the principles of quantum meruit: generally expressed as the actual value of the services performed. In this case, the amount of work completed before termination was calculated at 20%.  Contending that to award the 20% would be an improper and illegal award of a contingency fee to lawyers who did not have a contingency fee agreement, Arnold & Itkin appealed to the United States Court of Appeals for the Fifth Circuit.  

Louisiana fee awards in quantum meruit are calculated by factors set out by the Louisiana Supreme Court. See State, Dep’t of Transp. & Dev. v. Williamson, 597 So. 2d 439 (La. 1992). There are ten factors, including the ultimate result, obtained, the importance of litigation, the amount of money involved, the extent of the work performed, skill and diligence of the attorneys, the number of appearances made, intricacies of the facts, and the court’s own knowledge. Courts may consider these factors in the quantum meruit analysis when a contingency fee agreement has been discharged or when a contingency fee agreement was never involved. See City of Alexandria v. Brown, 740 F.3d 339 (5th Cir. 2014). The factors sometimes referred to as “Saucier Factors” are applied even when the attorney was discharged either with or without cause, although courts must reduce the award of an attorney discharged for cause according to the gravity of cause for discharge. Saucier v. Hayes Dairy Product, Inc., 373 So. 2d 102 (La. 1978).

oil-1441845-1-768x1024It’s a common scenario: someone is injured or property is damaged because another party failed to use reasonable care. This situation is far from rare in the legal profession, and the responsible party is usually held accountable for their negligence with civil lawsuits. But what happens when the injured person attempts to hold the wrong party responsible? It seems unlikely, but as James Johnson discovered, it is possible and the consequences can alter the course of a lawsuit’s final outcome.

James Johnson was shot in the leg while working as a superintendent on a drilling rig located near the coast of Nigeria. On November 8, 2010, Nigerian gunmen invaded Johnson’s rig and an attacker shot him, causing a severe injury that triggered months of complications. The night before the incident, rig hands moved a piece of equipment in front of the stairs that connected the rig to the platform in order to work on a device connected to the moving equipment. When rig hands noticed the assailants’ boat approaching the next day, they attempted to raise the stairs from the platform but were unable to do so because the equipment blocked the stairs. The gunmen used the lowered stairs to board the rig.

Johnson attempted to hold the rig hands’ employers responsible. Under the concept of vicarious liability, an employer can be held responsible for employees’ wrongful actions if those actions took place during the course of employment. Stoot v. D & D Catering Serv., Inc., 807 F.2d 1197, 1199 (5th Cir. 1987). Johnson brought multiple claims for negligence under maritime law and the Jones Act against many parties, one of which was GlobalSantaFe Corporation (GSF). Each of the companies Johnson named related to one another through a complex corporate structure.

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While many of us think of pirates as something that only exist on television or in the movies they do still exist throughout the world.  While they no longer sack and plunder ships for gold they do cause great havoc by kidnapping ships and invading oil rigs off the coast of Africa.  But can a foreigner who was kidnapped while working on an oil rig off the coast of a foreign land sue his employer under the Jones act for failing to protect him while he was working on the sea?  The following case out of New Orleans Louisiana discusses these concepts and answers that question.

Robert Croke, a citizen of Canada, was working aboard an oil rig off the coast of Nigeria. He claims that gunmen boarded the rig, kidnapped him, and then held him hostage for ten days. After his hostage experience, Croke filed a lawsuit in New Orleans Louisiana against PPI Technology Services, L.P., and GlobalSantaFe Offshore Services, Inc. According to Croke, PPI was his employer while GlobalSantaFe was another employer of rig workers. In his lawsuit against both companies, Croke’s legal theory is negligence: he argues that both companies were negligent because they did not have measures in place that would have forestalled the incident. Since Croke is a Canadian citizen, and his alleged kidnapping occurred in Nigerian waters, the district court dismissed the case under the foreign seamen exclusion provisions of the Jones Act.

Not being happy with the dismissal Croke then appealed that decision to the United States Court of Appeals Fifth Circuit. The appeals court first looked to Croke’s assertion that the district court did not properly apply the foreign seaman exclusion provisions of the Jones Act. Specifically, the court looked at the following section. 46 U.S.C. § 30105(b) which states in summary that maintenance and cure (maintenance is payment for daily living expenses and cure is for medical cost) cannot be received under federal maritime law if the injured party is not a United States Citizen and further an exclusion applies if the accident occurs in non United States territorial zoned waters.

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If you are injured during the course of your employment, you may have a cause of action against your employer for your injury. But beware of time limitations. Even if you have a solid cause of action, you must be careful to ensure that you file your claim before the time allotted for filing has elapsed. Otherwise, your claim might become “prescribed.” This means that a court will not hear your claim because too much time has passed. See Lima v. Schmidt, 595 So.2d 624, 629 (La. 1992). It is important to seek legal counsel immediately upon discovering any possible work-related injuries. A good lawyer will help you keep track of these deadlines to ensure any legal claims you may have do not become barred. The following case demonstrates the problems that can arise when you wait too long to bring your claim before the court.

In this case out of the Louisiana Fourth Circuit Court of Appeal, Mr. Larry Dufrene filed a lawsuit against his employer, Harvey Gulf, for damages arising from hearing losses he allegedly suffered while employed with Harvey Gulf. Mr. Dufrene submitted that his injuries were suffered in the course of his duties with his employer. Mr. Dufrene argued that in his time as a seaman for Harvey Gulf, from 1977 to 2010, he sustained significant hearing loss as a consequence of his duties and employment.

Because Mr. Dufrene was employed as a seaman with Harvey Gulf, the Jones Act and general maritime law applied. Maritime law is comprised of the laws and regulations governing activities at sea or in navigable waters. Under the Jones Act and maritime law, Mr. Dufrene had three years from the date of his injury to file his claim. See Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir. 1991).

Offshore-PlatformContract interpretation can be tough, but having a competent attorney review documents before you sign them goes a long way in avoiding surprises further down the line. This is important because the words that are not there are often just as important as the words that are, a lesson learned the hard way by Chet Morrison Well Services, L.L.C.

In 2008 Chet Morrison was retained by Palm Energy Offshore, L.L.C. to service two mineral wells at sea. To that end Chet Morrison contracted with Offshore Marine Contractors, Inc. to charter the Nicole , a vessel with extendable legs that are used to stabilize the ship at sea while the ship performs maintenance work on the mineral wells.

The Nicole Eymard departed Louisiana on July 18th and worked at a well located in the C37 block until July 27th. On the 27th the Nicole Eymard was sent to a well located in the WD55 block at the request of Palm Energy. After the repairs were completed on August 1st it was discovered that one of the legs of the Nicole Eymard was stuck. The ship remained there until August 18th when Offshore Marine Contractors ordered the leg severed. Once back in port the Nicole Eymard went through repairs, which were finished on October 10th.