Offshore Accidents

November 29, 2011

Court Determines if Injured Temp Qualifies Under Jones Act

Kerry Becnel was injured while working on a barge, but his relationship with the vessel is not clear cut, making it difficult to determine whether he was a seaman under the federal Jones Act. In Becnel v. Chet Morrison, Inc., No. 2010-CA-1411 (La. Ct. App. 4 Cir. 8/31/11), the Louisiana Fourth Circuit Court of Appeal reversed the St. Bernard 34th Judicial District Court and sent the case back for trial.

Becnel was a cook on a quarters barge owned by Chet Morrison Contractors, Inc. (CMC). One night in 2005, he was walking from one barge to another to reach a water taxi used to get to his living quarters. Before he reached the water taxi, he fell several feet into the water. Becnel claimed that “there was no safety device, railing, chain, rope, or other safety feature to prevent falling from the side of the vessel,” and the owner knew this. To add to the danger, the only light near where he fell was not working. He said he could not avoid the danger because he could not see it.

Becnel sued his employer, Coastal Catering, L.L.C., which had contracted Becnel’s services to CMC. He also sued CMC and the companies’ insurers. The battle became one between the companies and their insurers. Coastal’s insurer, State National Insurance Co. (SNIC), claimed that Coastal’s maritime general liability insurance policy did not cover CMC’s potential liability for Becnel’s injuries, but the district court decided it did.

November 21, 2011

Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits

by Berniard Law Firm

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca’s list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca’s nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca’s long line of cases to rest.

The first of these restrictions was the court’s upholding of the defendent’s plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant’s plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca’s case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca’s nu

November 15, 2011

Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription

by Berniard Law Firm

The following case highlights the importance of waiting no time in bringing a cause of action that is available. In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas’s manager, accused her of stealing over $500 from the company during February and April that year. This serious accusation resulted in Goulas being tried for felony theft. The crime of theft is committed when one is involved in a trespassory taking and carrying away of the property of another with the intent to permanently deprive the true owner of that property. Goulas was subsequently acquitted of this particular theft.

Following the criminal trial and Goulas’s ultimate accquital, she filed a lawsuit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones “intentionally and negligently inflicted emotional distress” upon her, and that their accusations were “founded in malice to damage her person and reputation.” The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas’s claims were based on the defendants’ actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants’ exception of prescription and dismissed Goulas’s claims with prejudice.

Goulas appealed, alleging error on the trial court’s ruling that her defamation claim was prescribed. Goula’s reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. “It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended.” However, the court explained, the suspension of prescription applies “only to allegedly defamatory statements made by parties to a lawsuit.” In this situation, Frederick and Jones were not parties to Goulas’s criminal prosecution, so the prescription suspension did not apply. The court concluded that “since there has been no suspension of the 2008 alleged defamatory statements,” the trial court properly granted the defendants’ exception of prescription.

November 9, 2011

Oil Company Wins Another Chance to Recover Money It Paid to Clean up Gulf Oil Spill

by Berniard Law Firm

The case of Jefferson Block 24 Oil and Gas, Inc. v. Aspen Insurance UK Limited highlights an important battle over money set aside for oil spill recovery, an obviously sensitive and important topic in the Gulf Coast. At the federal district court for the Eastern District of Louisiana, the defendants won a motion for summary judgment and the court dismissed the case. The plaintiffs appealed the determination and the United States Court of Appeals for the Fifth Circuit reversed the decision and remanded the case for further hearing.

The plaintiff, Jefferson Block, owned and operated offshore gas leases, pipelines and a platform in the Gulf of Mexico. In November 2007, a drop in pressure in one of the pipelines was discovered that showed that oil was spilling into the Gulf. Jefferson Block cleaned up the oil under the direction of several government agencies and incurred a cleanup cost of approximately $3 million.

At that time, Jefferson Block owned an insurance policy which provided some coverage in the case of a leak, but was limited to the items set out in a “Declaration.” This declaration listed the oil interests that Jefferson Block had in the area but did not specifically reference the 16-inch pipeline that was the cause of the spill.

October 23, 2011

Second Circuit Case Demonstrates Importance of Proper Contracts

by Berniard Law Firm

Our previous post discussed the various principles of contract law at work in the Mendoza case, which can be viewed here. This case involved a dispute between an injured worker’s employer and another company with which that employer had a contract. A provision of this contract provided for indemnification, the assuming by one entity of the liability of another.

Companies often assume the liabilities of other entities with which they hold contracts. This is seen as a cost of doing business. Indemnification makes up part of or the entirety of the consideration for some corporate contracts. Contracting away your liability can be extremely valuable. The dispute in this case was when the contract actually became effective. The court used various principles discussed in its opinion and the previous post on this topic to determine that the trial court was correct in denying summary judgment to one party and granting it to the other. Mid South, Mr. Mendoza’s employer, was to be indemnified and held blameless by EXCO as per their 2008 agreement.

In general, this dispute really came down to an issue of timing. The two companies in question signed an agreement in December 2008. The incident that created Mr. Mendoza’s cause of action occurred in October 2007. He filed suit in August of 2008. Mid South did not file an answer to the complaint until July of 2009. After this filing Mid South demanded defense from EXCO; this defense was promptly denied. Mid South again attempted to illicit indemnification and defense from EXCO in September 2009 based on a 2004 contract that Mid South held with Anadarko, a company whose interests were subsequently absorbed by EXCO. EXCO did not respond until after Mid South filed a cross-claim against EXCO. EXCO filed an exception and answer in April 2010 along with a motion for summary judgment. In July 2010, Mid South filed its cross-motion for summary judgment. The former motion for summary judgment was denied and the latter granted in August of 2010. When the trial court denied EXCO’s motion to designate the judgment as appealable, EXCO sought aid from a higher court. The Court of Appeal for the Second Circuit of Louisiana granted EXCO’s writ application but ultimately sided with the trial court.

October 13, 2011

Injury At Sea And Indemnification: Who Pays?

by Berniard Law Firm

Transferring from the deck of your boat to an offshore platform in the Gulf of Mexico to begin your day’s work should not be a terrifying experience. While the transfer involves getting into the personnel basket that transfers you onto the platform and little else, the process itself is not as simple as one plain act. Tragically, this simple transfer does not always occur as planned. A recent case highlights importnat legal principles associated with this scenario.

In Channette v. Neches Gulf Marine, Inc. and Seneca Resources Corporation, injured seaman Michael Channette was being transferred from the M/V GOLIAD, operated by Neches Gulf Marine, to an offshore platform operated and owned by Seneca Resources. When the transfer went wrong and Channette was injured, Neches Gulf Marine sought indemnity from Seneca Resources. Indemnification is “The act of making another “whole” by paying any loss another might suffer. This usually arises from a clause in a contract where a party agrees to pay for any losses which arise or have arisen.”

In this case, this is exactly what Neches Gulf Marine asserted – that Seneca Resources was contractually obligated to indemnify them. Unfortunately for Neches Gulf Marine, the district court granted a summary judgment motion for Seneca Resources, thus ruling they had no duty to indemnify Neches Gulf Marine.

October 11, 2011

Court of Appeals Upholds Trial Court Ruling Granting Longshoreman’s Workers Compensation Claim

by Berniard Law Firm

The United States Court of Appeals for the Fifth Circuit recently affirmed in principal part, the trial court’s ruling granting a longshoreman damages for a workers’ compensation claim. Benjamin McCuller and his wife, Miranda McCuller, sued Nautical Ventures, L.L.C., under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 905(b), after Benjamin, who was working as a longshoreman, was injured when he fell while descending a ladder on a ship owned by Nautical. Mr. McCuller was working for Halliburton Energy Services at a marine terminal in Fourchon, Louisiana when he was injured after one of the ladder rungs broke during his descent.

The bulk of the appeals court opinion discussed whether Halliburton, Nautical, or Mr. McCuller was at fault for the injuries suffered by Mr. McCuller. First, the appeals court agreed with the trial court that Nautical had breached its “turnover duty” when it deployed a defective ladder, which had been damaged during a sea deployment several weeks before Mr. McCuller’s fall. “The ‘turnover duty’ relates to the condition of the ship upon the commencement of stevedoring operations” and “requires a vessel to exercise ordinary care under the circumstances to turn over the ship and its equipment in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property.” This specific duty is the statutory basis for the McCullers’ claim as codified in the Longshore and Harbor Workers’ Compensation Act. In other words, this tort statute places upon the ship owner the duty to discover and fix potentially dangerous ship defects after a ship returns from sea. In the case at hand, the court found that an expert inspecting the ship should have discovered the crack in the ladder. Therefore, the appeals court affirmed the trial court’s ruling that Nautical was at fault for Mr. McCuller’s injuries because it was negligent in breaching its turnover duty by providing a faulty ladder for his use. However, it should be pointed out that the damages were reduced because Mr. McCuller was found to be 30% at fault for carrying a clipboard down the ladder when he was injured. But, the appeals court made clear that Mr. McCuller in no way had a duty to discover and fix the defective ladder.

However, the appeals court also made clear that there are certain circumstances when Mr. McCuller and/or Halliburton (his employer) would have a duty to discover potentially dangerous ship defects. In other words, there is one significant exception to the “turnover duty.” That is, if the defect causing the injury is or should be “open and obvious” to a reasonable longshoreman or stevedore-employer, than the ship owner cannot be held liable for the resulting damages. However, in the instant case the trial court found, and the appeals court agreed, that the crack in the ladder was not, and should not have been “open and obvious” to a reasonable stevedore and/or longshoreman.

October 1, 2011

Issues of Law Involving Water Complicated, Require Admiralty Understanding

by Berniard Law Firm

At times accidents on bodies of water are governed by a unique set of federal laws called admiralty laws. The court will thus apply admiralty law as opposed to federal or state law. This law of the water plays an important part in the administration of justice in Louisiana because of the great amount of water-based industries operating out of the state, and the high potential for lawsuits to occur within these industries.

Whether or not admiralty law can or need be applied can be very important to cases because the different set of laws can actually change a party’s rights. For example, under admiralty law if you make a Rule 9(h) declaration designating your maritime claims as claims governed by admiralty jurisdiction, then there is no right to a jury trial, even where you could get a jury trial under state or federal law.

The application of admiralty law was recently at issue in the case Apache v. GlobalSantaFe Drilling Company. In this case, a mobile offshore drilling unit, owned by GlobalSantaFe, collided with an offshore oil and gas production platform, owned in part by Apache Corporation. Apache sued GlobalSantaFe to recover the damages caused to the platform. Apache asserted that the suit could be under both admiralty law and federal law.

September 29, 2011

Fireman’s Survivors File in Time in Shreveport

by Berniard Law Firm

Timing is everything in civil litigation. The difference of a day or two can determine whether a suit is timely or not timely, meaning if the court will even hear the case being filed. As such, the difference between a suit that is timely and one that is not timely can make the difference between a plaintiff receiving full compensation for their claims and a plaintiff (or his or her surviving family members) receiving nothing.

Mr. Jerry Bozeman dedicated his life to protecting others from fire-related disasters. Sadly, while carrying out his duties he was exposed to asbestos due to improperly built and maintained facilities. As a result of the City of Shreveport failing to protect their employees, including Mr. Bozeman, from the hazardous material in the fire station where he spent a great deal of time, the loyal fireman suffered from asbestos,-related mesothelioma. Mr. Bozeman’s two children, Corey Bozeman and Matthew Bozeman, brought suit under theories of negligence and strict liability under a claim of wrongful death in addition to survival benefits.

The primary issue before the Court of Appeal for the Second Circuit State of Louisiana on appeal was whether the case was actually able to be appealed to the First Judicial District Court for the Parish of Caddo, Louisiana. There was some contention as to whether the plaintiff could appeal the trial court’s granting of the City’s exception of no cause of action as to the plaintiffs’ wrongful death claims and non-intentional torts. The City was denied motion for summary judgment and its request for another exception to intentional tort claims and executive officer liability; the plaintiffs did not want to appeal these parts of the trial court’s judgment.

September 13, 2011

Jones Act Lawsuit Fails Under Seaman Claim

by Berniard Law Firm

“Plaintiff Lost at Seaman Claim”

Robert Teaver may have fancied himself a man of the sea but the United States Court of Appeals for the Fifth Circuit agreed with the District Court for the Eastern District of Louisiana that there was no way he could establish his status as a “seaman” for purposes of the Jones Act.

When dealing with litigation, especially when making a claim under a premise, words mean everything. To clarify, words mean specific things and those specific definitions are everything. Robert Teaver attempted to sue his employer under the Jones Act. The Jones Act was crafted to protect seamen who are injured in the course of their employment. This statute lays out the elements that must be met in order for a potential plaintiff to file a successful suit under it. Robert Teaver was a crane operator and installer for Seatrax of Louisiana, Inc. This company makes and installs cranes for offshore drilling platforms. Mr. Teaver’s work took him over water but he was not employed on a maritime vessel.