Bell v. Dunn

• Decision Date: 21 December 2005
• Docket Number: No. 2004-CA-2117.,2004-CA-2117.
• Citation: 924 So.2d 224
• Parties: Sam BELL v. Durward DUNN.
• Court: Court of Appeal of Louisiana — District of US

924 So.2d 224

Sam BELL v. Durward DUNN.

No. 2004-CA-2117.

Court of Appeal of Louisiana, Fourth Circuit.

December 21, 2005.

Rehearing Denied March 10, 2006.

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Joel R. Waltzer, John L. Robert III, Waltzer & Associates, Harvey, LA, for Plaintiff/Appellant.

Bertrand M. Cass, Jr., William Kayser Terrill, Allen F. Campbell, Alexis M. Myers, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendant/Appellee.

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge MAX N. TOBIAS JR.).

JOAN BERNARD ARMSTRONG, Chief Judge.

Plaintiff-appellant, Sam Bell, appeals a summary judgment dismissal of his personal injury claims asserted alternatively under the Jones Act or under § 905(b) of the Longshore and Harbor Workers Act (LHWCA)¹ against the defendant-appellee, Durward Dunn, Inc. ("Dunn"). For the reasons that follow, we reverse and remand.

Plaintiff was allegedly injured while working for Dunn on the construction of a railroad bridge over water. Each day Dunn ferried the plaintiff to the job site aboard a small boat, where he was delivered to a special purpose vessel known as a "spud barge". He did most of his work from the spud barge. He was assigned to demolish "footings" from inside a basket that was suspended from a crane located on the spud barge. However, one day he accessed what was referred to variously as a "floating work platform" by Dunn and a "pontoon" by the plaintiff, by climbing down a ladder from the land. The platform/pontoon was lowered into the water from the spud barge by the barge crane. The platform/pontoon was stored on the barge when not in use. It was used when the barge could not get close enough to the footings for the crew to work. A board or plank was extended over the side of the platform/pontoon to allow the crew even closer access to the footing.

Plaintiff allegedly slipped on the wet plank because it lacked a non-slip surface. He ricocheted off a bridge footing and then fell into Unknown Pass, a natural navigable waterway connecting Lake Borgne with Lake Catherine, resulting in a back injury.²

Dunn moved for the summary judgment dismissal of plaintiff's Jones Act claim, contending that the plaintiff was not a Jones Act seaman because he was a shoreside worker, temporarily assigned to work on the construction of a railroad bridge over water, and he did not have a substantial connection to a vessel in navigation.

Dunn also moved for the summary judgment dismissal of plaintiff's claim under § 905(b) of the LHWCA arguing only that the platform-pontoon was not a vessel.

The trial court granted Dunn's motion for summary judgment in a combined "Judgment and Reasons for Judgment," based on findings that: (1) plaintiff was a temporary worker, and (2) the work platform where the accident occurred was not a vessel.

While the trial court's judgment does not specify which of these reasons applies to which of the plaintiff's alternative claims, we can deduce the answer. The "temporary worker" finding, of necessity, must relate to the plaintiff's Jones Act claim because recovery under the LHWCA does not depend on any such distinction, and Dunn did contend otherwise in the trial court. The "vessel" finding, of necessity, relates to plaintiff's claim under the LHWCA because Dunn did not challenge the "vessel" aspect of the plaintiff's Jones Act claim in the trial court.

First, we note that the basic facts upon which this appeal is based are not really in dispute. However, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. The court must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion. Id.; Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, pp. 16-17 (La.2/29/00), 755 So.2d 226, 236. Thus, even where the facts are not disputed, "genuine issues" in a La. C.C.P. art. 966 sense may exist as to what inferences might be drawn from those facts in those instances where reasonable fact finders might differ as to the meaning of such inferences. Where such inferences are "material" in a La. C.C.P. art. 966 sense, then summary judgment is not appropriate. In other words, pursuant to Willis and Independent Fire, inferences to be drawn from facts are part of the fact finding process and are capable of precluding summary judgment, even when the facts are not in dispute, either because the facts are uncontested or because one of the parties has failed to offer evidence in opposition that meets the technical requirements of La. C.C.P. arts. 966 and 967. Therefore, plaintiff's appeal will have merit if he can show that there are genuine issues concerning material inferences to be drawn from the undisputed facts. This is basically the essence of the plaintiff's argument in this appeal.

In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.³ Cenance v. Tassin, 03-1379, p. 3 (La.App. 4 Cir. 3/3/04), 869 So.2d 913, 916.

We are also aware that the mere fact that the parties may dispute facts, or the inferences to be drawn from those facts, does not mean that a "genuine issue" exists. The standard for finding a "genuine issue" is not whether the parties disagree, for we may accept as a given that the parties will usually not be in agreement, but whether reasonable fact finders could reach different conclusions. Only if reasonable fact finders could reach different conclusions are we entitled to find that a genuine issue exists.

In addition to these general summary judgment standards, we must bear in mind the more specific standard applicable to the instant case, "that the question of seaman status should only be removed from the trier of fact (by summary judgment or directed verdict) in rare circumstances and that even marginal Jones Act claims should be submitted to the jury." Bernard v. Binnings Constr. Co., Inc., 741 F.2d 824, 827 (5th Cir.1984); Daniel v. Ergon, Inc., 892 F.2d 403 (5th Cir.1990).

I. PLAINTIFF'S JONES ACT CLAIM.

Plaintiff was employed by Tradesman International ("Tradesman")⁴, an employment or temporary services agency for labor. Tradesman supplied construction workers to contractors. Plaintiff never performed any real work directly for Tradesman and Dunn does not contend that he ever would, even upon the conclusion of his work for Dunn. Tradesman assigned the plaintiff to work for Dunn on the railroad bridge construction project. This was plaintiff's first assignment with Tradesman. In support of its motion for summary judgment below, Dunn argued that an "employer-employee relationship is a prerequisite to a Jones Act claim", but then went on to concede that, "for purposes of this motion for summary judgment, it must be assumed that Sam Bell was Durward Dunn's borrowed servant or borrowed employee." [Emphasis added.] Therefore, for purposes of this motion for summary judgment we consider the plaintiff to be Dunn's employee. This in turn renders Dunn's arguments concerning the potential nature of the plaintiff's future employment with Tradesman upon the conclusion of his work with Dunn irrelevant.

The leading case on this issue, Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995), requires the following two-prong test as a prerequisite for seaman status under the Jones Act: (1) the employee's duties must contribute to the function of the vessel or to the accomplishment of its mission, and (2) the employee must have a connection to a vessel in navigation, or to a group of such vessels, that is substantial in terms of both its duration and nature.

The plaintiff allegedly was injured when he slipped and fell while working for Dunn on the platform/pontoon. A reasonable fact finder could find that the platform/pontoon was an appurtenance of or an accessory to the spud barge. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 535, 115 S.Ct. 1043, 1049, 130 L.Ed.2d 1024 (1995); Anderson v. U.S., 317 F.3d 1235, 1238 (11th Cir. 2003). While Dunn disputes on appeal that the platform/pontoon was a vessel for purposes of § 905(b) of the LHWCA, Dunn concedes that the spud barge was a vessel and that the work plaintiff was performing on the platform/pontoon at the time he was injured was in furtherance of the function of the vessel and the accomplishment of its mission for Jones Act purposes. Dunn's brief on appeal states that:

[Plaintiff] is correct that the Chandris Court set forth a two-pronged test to achieve Jones Act seaman status. . . . The first prong of the test, that the employee's duties must contribute to the function of the vessel — i.e., the spud barge — or the accomplishment of its mission, is easily met — and is so met in this case."

Similarly, Dunn's "Memorandum in Support of Motion for Summary Judgment" in the trial court argued that the disqualifying factor for plaintiff's Jones Act claim was the temporary and transitory nature of his employment with Dunn. As to the vessel status of the spud barge, Dunn specifically refrained from raising that as an issue in its motion for summary judgment in the trial court as may be seen by reference to the following statement found in Dunn's Memorandum in Support of Motion for Summary Judgment:

Whether or not the spud barge was a vessel in navigation[⁵] is another question, but is not considered by this motion for summary judgment.

In other words, Dunn acknowledges that the plaintiff qualifies as a seaman under the first prong of the Chandris test. It is only under the second prong of the Chandris test that Dunn disputes plaintiff's status as a Jones Act seaman, i.e., Dunn...