Brockington v. Certified Elec., Inc.

• Decision Date: 26 June 1990
• Docket Number: No. 89-8373,89-8373
• Parties: Joseph Daniel BROCKINGTON, et al., Plaintiffs-Appellants, v. CERTIFIED ELECTRIC, INC., Gerald Raine, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1523

903 F.2d 1523

1991 A.M.C. 586

Joseph Daniel BROCKINGTON, et al., Plaintiffs-Appellants, v. CERTIFIED ELECTRIC, INC., Gerald Raine, Defendants-Appellees.

No. 89-8373.

United States Court of Appeals, Eleventh Circuit.

June 26, 1990.

Edward E. Boshears, Brunswick, Ga., for plaintiffs-appellants.

John T. Woodall, Marvin W. McGahee, Savannah, Ga., for Gerald Raine.

Douglas M. Muller, Robert S. Glenn, Jr., Hunter MaClean Exley & Dunn, P.C., Savannah, Ga., for Certified Elec., Inc.

Appeal from the United States District Court for the Southern District of Georgia.

Before TJOFLAT, Chief Judge, VANCE ^*, Circuit Judge, and ALLGOOD ^**, Senior District Judge.

PER CURIAM:

We affirm the district court's summary judgment in favor of appellee Certified Electric, Inc. for the reasons stated in the relevant portion of its April 18, 1989 order

set out in the appendix. We affirm the court's summary judgment in favor of appellee Gerald Raine because no genuine issue of material fact exists and under the applicable law appellants are entitled to no relief. See 11th Cir.R. 36-1.

APPENDIX

ORDER

ALAIMO, Chief District Judge:

Joseph Daniel Brockington and Sylvia, his wife, bring this action to recover damages for an injury sustained by Brockington on the "navigable" waters of the Intracoastal Waterway in the course of his employment with Certified Electric, Inc. ("Certified"). Brockington, who has already received compensation for his injury pursuant to the Georgia Workers' Compensation Act, O.C.G.A. Sec. 34-9-1, et seq., now seeks an independent recovery against Certified as his employer, pursuant to section 5(b) of the federal Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. Sec. 901 et seq., and general maritime law....

Now before the Court [is] Certified's ... motion[ ] for summary judgment. The Court finds that the material facts are not in dispute with respect to Certified's position and that it is entitled to judgment pursuant to both the LHWCA and general maritime law. Accordingly, Certified's motion for summary judgment will be granted....

FACTS

Joseph Daniel Brockington lived in Brunswick, Georgia, and in May 1985, had been employed as a land-based journeyman electrician by Certified (also located in Brunswick) since 1975. His duties primarily consisted of wiring houses and commercial and industrial buildings. In connection with these duties, he also dug ditches, ran conduit, pulled cable and wired electrical fixtures.

The incident which forms the basis for this action took place on May 15, 1985. Certified had contracted with the University of Georgia to do wiring work at a marine laboratory which was being built on Sapelo Island, off the coast of Georgia. The lab was being built entirely upon the land. Because there is no bridge to the island, it was necessary for the workers to travel to the island aboard the "Sapelo Queen" ferry. Workers had encountered difficulties because the ferry made only a limited number of trips back and forth, thereby limiting their access to the island and to their materials and equipment. For this reason, David Ferrell, also an electrician with Certified, suggested using his own 16-foot motorboat to transport materials to the island. Certified gave Ferrell permission to do so and agreed to reimburse him for gas, oil and dockage fees. Although Ferrell had made the trip prior to May 15, 1985, Brockington was making the trip for the first time.

According to Brockington, he met Ferrell at approximately 7:30 a.m. on May 15, 1985, at Ferrell's home in Darien, Georgia. They proceeded, with Ferrell's boat, to the marina where they loaded it with the supplies and equipment they would need on Sapelo. Ferrell maintains, however, that they met at the marina where the boat was already located. At any rate, after loading the boat, they proceeded to Sapelo Island; Ferrell operated the boat while Brockington, who states that he looked at the electrical plans and checked the tools on the way over, acted as a passenger. While Brockington states that they left the dock at approximately 8:00 a.m., Ferrell recalls leaving sometime between 8:30 and 8:45 a.m.

At this point, the versions of the facts begin to differ in material respects. While Ferrell recalls that the incident which forms the basis for this lawsuit occurred on the way to Sapelo, Brockington maintains that they had already been to the island, unloaded materials and were on their way back to the marina to get more supplies when the incident took place. Ferrell states that it occurred as his boat entered the Intracoastal Waterway from an intersecting river and unexpectedly encountered a wake of approximately four feet, caused by a larger passing vessel which he had been unable to see prior to entering the Brockington's recollection of the accident is somewhat different. He states that Ferrell's boat met the cabin cruiser head-on. To avoid a collision, Ferrell maneuvered his boat to the left and the larger boat passed on their right side. According to Brockington, when the boats were approximately even, Ferrell made a 90-degree turn directly into its wake. It was at that point that Brockington's seat became unfastened and slid to the back of the boat. Although he did not notice its name or any other identifying marks, Brockington recalls seeing two people on the second deck of the cabin cruiser, which he later identified as being nearly identical to a diagram of a Viking motor yacht.

Waterway because a curve in the river obstructed his view. When Ferrell's boat, which was traveling at approximately 20-25 m.p.h., hit the wake, the seat upon which Brockington was sitting became unfastened and slid to the back of the boat, apparently causing Brockington to fall. Ferrell states that, at approximately the same time his boat hit the wake, he looked to his left and saw the back of a yacht (the only boat in sight) approximately 100-150 yards away. The only thing he noticed was that one person was on the very top of the boat.

Ferrell's and Brockington's recollection of the facts converge once again following the accident. Complaining of back pain, Brockington requested that they return to the marina. Upon their arrival, he informed his employer that he was unable to continue working and returned home to Brunswick. Brockington has not returned to work since then.

According to their log, Gerald Raine and his wife left the Golden Isles Marina in St. Simons Island, Georgia, aboard their yacht, the "Empty Pockets III," at approximately 9:30 a.m. on May 15, 1985, and proceeded north on the Intracoastal Waterway. They arrived at the Thunderbolt Marina in Thunderbolt, Georgia, at 2:45 p.m. That 93-mile leg of their journey from Fort Lauderdale, Florida, to the Chesapeake Bay was made at an average speed of 17.7 m.p.h. Although plaintiffs contend that the "Empty Pockets III" was the only boat of its kind which would have been in the vicinity of the incident at the time it occurred, neither Raine nor his wife recalls anything unusual about their journey that day, and maintain that they were traveling too slowly to have been in the area at the time of the incident.

Following the accident, Brockington applied for and initially received approximately $46,000 in state worker's compensation benefits, consisting of about $26,000 in medical benefits related primarily to back surgery he underwent as a result of the injury he sustained in his fall, and $19,000-$20,000 in compensation benefits. Certified and its insurance carrier brought a separate proceeding to contest the amount of benefits Brockington was receiving because of his perceived lack of cooperation with rehabilitation therapists. In final settlement of Brockington's claims, Certified and the insurer agreed to pay him an additional $40,000 plus open medical expenses for a period of one year.

DISCUSSION

Plaintiffs originally invoked federal jurisdiction of their action, contending that Brockington was a "maritime employee," entitled to recover pursuant to the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901, et seq. Whether plaintiffs continue to argue this is unclear, but irrelevant, given the Court's determination, infra, that Brockington is not entitled to coverage under the LHWCA. Plaintiffs also invoke the admiralty jurisdiction of the Court for their claim under general maritime law.

Certified moves for summary judgment, arguing, first, that Brockington was not a "maritime employee" for purposes of the Act. Certified argues further that this claim is not cognizable under the Court's general maritime jurisdiction but that, even if it were, plaintiffs' claims are barred because they have already been compensated under the exclusive provisions of the Georgia Workers' Compensation Act.

Summary judgment requires the movant to establish the absence of genuine issues of material fact, such that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 153, 90 S.Ct. 1598, 1606, 26 L.Ed.2d 142, 152 (1970). Summary judgment is also proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986).

The Court should consider the pleadings, depositions and affidavits in the case before reaching its decision, Fed.R.Civ.P. 56(c), and all reasonable inferences will be made in favor of the nonmovant. Adickes, 398 U.S. at 158-59, 90 S.Ct. at 1608-09, 26 L.Ed.2d at 155.

(A) LHWCA

Plaintiffs originally brought this action under the LHWCA and, while they now appear willing to stipulate that the LHWCA does not apply, it is not entirely clear whether they have dropped their claim under it. Moreover, defendants argue that, if plaintiffs' claims are cognizable under the Court's...