852 F.2d 1421 (5th Cir. 1988), 86-3389, Simeon v. T. Smith & Son, Inc.

Docket Nº:86-3389.
Citation:852 F.2d 1421
Party Name:Jules SIMEON, Sr., and Ida Mae Griffin Simeon, Wife of Jules Simeon, Sr., Plaintiffs-Appellees, Cross-Appellants, Cross-Appellees, v. T. SMITH & SON, INC., Defendant-Appellee, Cross-Appellant, v. LUMAR MARINE, INC., Defendant-Appellant, Cross-Appellee.
Case Date:August 10, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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852 F.2d 1421 (5th Cir. 1988)

Jules SIMEON, Sr., and Ida Mae Griffin Simeon, Wife of Jules

Simeon, Sr., Plaintiffs-Appellees,

Cross-Appellants, Cross-Appellees,


T. SMITH & SON, INC., Defendant-Appellee, Cross-Appellant,


LUMAR MARINE, INC., Defendant-Appellant, Cross-Appellee.

No. 86-3389.

United States Court of Appeals, Fifth Circuit

August 10, 1988

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[Copyrighted Material Omitted]

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Henry S. Provosty, David L. Carrigee, Burke & Mayer, New Orleans, La., for Lumar Marine, Inc.

William A. Porteous, III, Porteous, Hainkel, Johnson & Sarpy, New Orleans, La., for Simeon.

Paul N. Vance, Andre J. Mouledoux, Harvey J. Godofsky, New Orleans, La., for T. Smith.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before KING, WILLIAMS, and GARWOOD, Circuit Judges.


Jules Simeon (Simeon), a deckhand on a derrick barge owned by T. Smith & Son, Inc. (Smith), was badly injured when his foot and leg were caught in a mooring line running from his barge to an adjacent hopper barge being prematurely towed away by a tug owned by Lumar Marine, Inc. (Lumar). Simeon sued his employer, Smith, alleging Jones Act negligence and unseaworthiness. He sued Lumar alleging general maritime negligence. His wife sued both defendants for her loss of consortium. The jury found that Simeon was ten percent contributorily negligent and that Smith was fifty-eight percent negligent, but its barge seaworthy. The general maritime law claim against Lumar was simultaneously tried to the court, which accepted the jury's advisory finding that Lumar was thirty-two percent negligent. The district court rendered judgment for Simeon against Smith and Lumar, severally, and for Mrs. Simeon against Lumar, based on the jury award, as remitted, in the Jones Act case, and otherwise on the district court's damages findings. Each party appeals, raising various objections. We affirm in part, reverse in part, and remand.

Facts and Proceedings Below

Early on the morning of September 27, 1981, Simeon, then fifty-seven years old, reported to work on Smith's derrick barge, the PENNY, in the Mississippi River near Belle Chase, Louisiana. The PENNY was assigned to unload iron ore from an ocean-going vessel and place it on a hopper barge. The PENNY was positioned between the vessel and the hopper barge, which was held to the PENNY by mooring lines. On the PENNY was a large crane equipped with a bucket to scoop the ore off the ocean-going vessel and swing the load over to the hopper barge. The PENNY had a crew of five: Simeon and a fellow deckhand, the crane operator, a flagman positioned on the ocean-going vessel to help guide the crane operator, and a foreman responsible for the entire operation. It took all day to fill the hopper barge with

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ore. By the end of the shift, in late afternoon, the hopper barge was full and instructions were given to release the mooring lines so that a tug--the M/V TAKO BANDIT owned by Lumar--could tow the loaded hopper barge away.

Ordinarily it was not a complex matter to undo the mooring lines. The river current put tension on the mooring lines by pushing the hopper barge back as the lines were unwrapped from the bitts, but the tug waiting to pull the hopper barge away was supposed to gently push it against the current to compensate. When the lines were released, the deckhands signaled the tugboat pilot and he reversed directions and towed the hopper barge away.

On this day, the operation did not go so smoothly on the PENNY. Just as Simeon was almost finished unwrapping the bow mooring line, he slipped on some ore that had fallen onto the PENNY's deck; his right leg and foot were then caught in the mooring line at its end where a knot had been tied to stop the line from fraying. The hopper barge was drifting back, either with the current or because the tug, Lumar's M/V TAKO BANDIT, had begun towing it, and Simeon's foot, entangled in the moving mooring line, was nearly severed from his leg.

After a series of operations and two months' hospitalization, Simeon's foot was saved. Evidence at trial showed, however, that Simeon's condition was not normal after his operations. His foot hurt constantly, he had to walk with a cane, except around the house, and he could go only short distances before painful swelling occurred. He could not return to work and became gloomy and depressed. The quality of his marriage deteriorated and because Simeon's painful foot made him restless at night, his wife was forced to sleep in a separate bedroom.

The day before the third anniversary of his accident, Simeon and his wife filed suit against Smith and Lumar in the United States District Court for the Eastern District of Louisiana. 1 The two defendants filed cross-claims against each other for contribution. Simeon argued that the PENNY was unseaworthy and that his employer was negligent under the Jones Act because of the iron ore scattered on deck, the knotted mooring line, and the failure of the other deckhand to assist him in unwrapping the bow mooring line. Simeon asserted that Lumar was negligent under general maritime law for towing the hopper barge away before Simeon had released the mooring line. 2

The Jones Act and unseaworthiness claims against Smith were tried to the jury 3; the general maritime law negligence claim against Lumar was simultaneously tried to the court with the jury acting in an advisory capacity. The jury refused to find unseaworthiness, but found negligence on the part of Smith (fifty-eight percent), Lumar (thirty-two percent), and Simeon (ten percent). The jury awarded $1,250,000 for

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Simeon's past and future pain and suffering, $30,000 for his future medical expenses, and also awarded his wife $80,000 for her loss of consortium. The district court remitted the jury's pain and suffering award against Smith to $750,000, and Simeon accepted this remittitur. In its capacity as trier of fact of the maritime claim against Lumar, the district court rejected the jury's $1,250,000 pain and suffering award and chose instead the sum of $450,000. The district court accepted the jury's damage awards for future medical expenses and loss of consortium and also accepted the jury's apportionment of responsibility for the accident.

The district court then entered judgment for Simeon as follows: against Smith--$508,362.75 (fifty-eight percent of $876,487.50, which is the sum of $750,000 [pain and suffering], $30,000 [future medical], and $96,487.50 [stipulated lost wages still unpaid] 4; against Lumar 5--$184,576 (thirty two percent of $576,487.50, which is the sum of $450,000 [pain and suffering], $30,000 [future medical], and $96,487.50 [stipulated lost wages still unpaid]. 6 With regard to Simeon's damages, the court refused to enter a joint judgment against both Lumar and Smith; under the judgment rendered, each defendant is liable only for its respective proportion of total causation. The court additionally assessed Lumar alone with all of Mrs. Simeon's loss of consortium damages (less Simeon's ten percent contributory negligence) because the Jones Act, which was the only basis for Smith's liability, does not recognize a claim for loss of consortium. The court refused to order prejudgment interest on Simeon's Jones Act recovery against Smith because that claim was tried to the jury. The maritime claim against Lumar was bench tried, so the court ordered prejudgment interest on the entire recovery against Lumar beginning from the date of the accident.

The parties have raised nine issues on appeal: (1) whether the jury verdict against Smith was the product of passion and prejudice so as to require a new trial; (2) whether the pain and suffering damages against Smith should be further remitted below $750,000; (3) whether the district court's award of $450,000 for pain and suffering in Simeon's action against Lumar was adequate; (4) whether there is sufficient evidence to support the $30,000 award for future medical expenses; (5) whether the district court erred in holding Smith and Lumar severally, rather than jointly, liable; (6) whether Smith can be liable to Mrs. Simeon for loss of consortium based on negligence; (7) whether the district court erred in the consortium claim by not rendering judgment n.o.v. that the PENNY was unseaworthy; (8) whether the district court erred in ordering Lumar to pay the entirety of Mrs. Simeon's loss of consortium recovery (less Simeon's ten percent contributory negligence) even though Lumar was only thirty-two percent responsible for the accident; and (9) whether the district court's award of prejudgment interest against Lumar was in error.


I. Smith's "excessiveness" motion for new trial

In a post-trial motion, Smith requested a new trial on grounds that the

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jury verdict resulted from passion and prejudice. The district court held that the jury's award of $1,250,000 against Smith for Simeon's pain and suffering was excessive and ordered a new trial unless Simeon would accept a remittitur to $750,000. Simeon accepted the remittitur, but Smith continues to assert that a new trial was in order. We review the district court's denial of a motion for new trial for abuse of discretion. Complete Auto Transit, Inc. v. Floyd, 249 F.2d 396, 399 (5th Cir.1957), cert. denied, 356 U.S. 949, 78 S.Ct. 913, 2 L.Ed.2d 843 (1958).

Almost half a century ago, our Court stated, "[W]hile mere excessiveness in the amount to be awarded may be cured by a remittitur, that excessiveness which results from passion and prejudice, however natural the resentment which arouses it, may not be so cured." Brabham v. Mississippi, 96 F.2d 210, 214 (5th Cir.), cert. denied, 305 U.S. 636, 59 S.Ct. 103, 83 L.Ed. 409 (1938). A new...

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