Bergeron v. Atlantic Pacific Marine, Civ. A. No. 91-2019.

• Decision Date: 29 September 1993
• Docket Number: Civ. A. No. 91-2019.
• Citation: 899 F. Supp. 1544
• Parties: Rickie P. BERGERON, et al. v. ATLANTIC PACIFIC MARINE, et al.
• Court: U.S. District Court — Western District of Louisiana

899 F. Supp. 1544

Rickie P. BERGERON, et al. v. ATLANTIC PACIFIC MARINE, et al.

Civ. A. No. 91-2019.

United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.

September 29, 1993.

Keitha A. Leonard, Leonard & Leonard, Lafayette, LA, for Rickie P. Bergeron, Joann Bergeron, Jessie Bergeron, Robert Bergeron, Dessie Bergeron, Elizabeth Bergeron.

Edward O. Taulbee, IV, Taulbee Rowe Bares & Oliver, Lafayette, LA, for Atlantic Pacific Marine, Chevron Oil Co.

Dennis Stevens, Gibbens & Blackwell, New Iberia, LA, for Greig Filters, Inc., Travelers Insurance Co.

MEMORANDUM RULING

DOHERTY, District Judge.

This matter comes before the Court as a motion for partial summary judgment filed on behalf of defendant, Chevron, seeking to preclude plaintiff's "Sieracki" unseaworthiness claim as plaintiff satisfies the "situs" and "status" test for coverage under the Longshore & Harbor Workers' Compensation Act (LHWCA) and is therefore precluded from maintaining an action based upon the unseaworthiness of the vessel Ranger V. Also pending before the Court is a motion styled as a partial summary judgment filed on behalf of plaintiff seeking to establish that he has a claim for punitive damages and that his wife, Mrs. Bergeron, also has a claim for loss of consortium.

At the initial pre-trial conference in this matter it came to the Court's attention that in the original complaint, plaintiff asserted that jurisdiction existed under general maritime law and/or diversity of citizenship and that plaintiff was also asserting a claim under the Jones Act, 46 U.S.C.App. § 688 and/or the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333, including a claim for punitive damages and a claim by Mrs. Bergeron for loss of consortium and that defendants contested these assertions. The Court asked counsel to submit briefs on the issue of jurisdiction and applicable law, wherein defendants argued that the facts in this matter clearly indicated that plaintiff had no claim pursuant to the Jones Act, the Outer Continental Shelf Lands Act or for punitive damages and that plaintiff's wife had no claim for loss of consortium. Subsequent submissions to the Court on these issues have now resolved a portion of these difficulties as the parties have agreed that the alleged accident took place in state territorial waters rather than on the Outer Continental Shelf, therefore, the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333 does not apply in this case. Further, plaintiff states in his brief to the Court that he is no longer making a claim under the Jones Act, 46 U.S.C.App. § 688, as plaintiff, Rickie Bergeron, was not a Jones Act seaman at the time of the accident. However, plaintiff is making a claim for unseaworthiness based on Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) and included under plaintiff's Sieracki general maritime claim is made a claim for punitive damages and a claim for loss of consortium asserted by Mrs. Bergeron, plaintiff's wife.

Defendants, Chevron and APMC, argue that plaintiff does not have a Sieracki claim, his wife does not have a claim for loss of consortium and/or neither has a claim for punitive damages, rather plaintiff's only claims against Chevron U.S.A., Inc. and Atlantic Pacific Marine are those under general maritime negligence as defendants argued was modified by Miles v. Apex Marine, 498 U.S. 19, 31, 111 S.Ct. 317, 325, 112 L.Ed.2d 275 (1990). Defendants assert plaintiff is precluded from asserting a "Sieracki" type action based on unseaworthiness of the "Ranger V", as plaintiff satisfies the situs and status test of the LHWCA. Therefore, plaintiff's only action against the vessel, the "Ranger V", is a negligence action under § 905(b) of the LHWCA. Further, defendants argue coverage under the LHWCA precludes plaintiff from maintaining a claim for punitive damages, as well as restricting the availability of a loss of consortium claim.

This Court finds weakness with defendants' analysis as the U.S. Department of Labor Office of Workers' Compensation Programs ("The Department"), in a letter dated July 31, 1992, denied plaintiff's claim for LHWCA benefits by stating that "The January 24, 1991 injury sustained by Mr. Bergeron did not occur on a covered maritime situs necessary to establish jurisdiction pursuant to the Longshore & Harbor Workers' Compensation Act. See Herb's Welding v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406 17BRBS 78 (CRT) 1985." This leaves this Court with the unenviable question of whether this court is bound by the determination of the Department denying the plaintiff benefits under the LHWCA and if so, if plaintiff is not covered by the LHWCA does plaintiff have a "Sieracki" remedy and if plaintiff does have a "Sieracki" claim for unseaworthiness of the "Ranger V", what claims are allowed under that unseaworthiness claim, i.e., does plaintiff have a claim for punitive damages and his wife a claim for loss of consortium under the general maritime law claim made within state waters and/or the unseaworthiness claim notwithstanding Miles and its progeny?

Facts

Plaintiff, Rickie Bergeron, was allegedly injured while on board the Atlantic Pacific Marine jack-up vessel, the "Ranger V", which was time chartered to Chevron, U.S.A., Inc. and performing workover operations in state waters. Atlantic Pacific Marine Corp. (APMC) and plaintiff's employer, Greig Filters, were allegedly independent contractors of Chevron. Plaintiff was allegedly injured when, it is argued by plaintiff, he was instructed to place his filtering equipment in an unsafe manner which exposed him to an unsafe condition whereupon he allegedly fell and twisted his knee as a result of the allegedly hazardous placement of his equipment.

As stated previously, the Department found plaintiff did not meet the requirements for maritime situs necessary for benefits under the LHWCA. Plaintiff is presently receiving state workers' compensation. The Court questions the accuracy of the determination of the Department in stating that plaintiff has no situs. The "Ranger V" on which plaintiff alleges injury was a vessel located on navigable state waters. The Fifth Circuit in Fontenot v. AWI, Inc., 923 F.2d 1127, 1130-1131 (5th Cir.1991), specifically cites Herb's Welding v. Gray, supra and states that "Offshore oil rigs are of two (2) general sorts: fixed and floating. Floating structures have been treated as vessels by the lower courts. Workers on them, unlike workers on fixed platforms, enjoy the same remedies as workers on ships. If permanently attached to the vessel as crew members, they are regarded as seaman; if not, they are covered by the LHWCA because they are employed upon navigable waters." Therefore, even if we were to assume that the plaintiff was not permanently attached for these purposes, it would appear to this Court that as defendants argue there is a strong argument plaintiff should be accorded the benefits of LHWCA, assuming all other requirements being met, as his alleged injury occurred on a vessel on navigable waters.

Noting this argument, defendants urge this Court to find that plaintiff is covered by the LHWCA despite the ruling of the Department. The question, however, remains whether this Court is bound by the ruling of the Department in denying plaintiff LHWCA status. The answer would appear to be yes, that this Court is bound, again citing the Fifth Circuit in Fontenot, supra which quotes the United States Supreme Court in Simms v. Valley Line Co., 709 F.2d 409, 411 (5th Cir.1983):

Permitting a trial court to redetermine issues decided by the administrative system affectively defeats the purpose of the LHWCA.... furthermore, if we permit a trial court and the Department to reach inconsistent determinations of the coverage issue, an injured worker may receive both a jury trial and an LHWCA remedy or neither, despite the intention of Congress that he receive one or the other.

This Court recognizes that the cases standing for prohibitions against re-determination of Department decisions involve cases where the plaintiff was declared eligible for LHWCA benefits, but was seeking to recover as a seaman or as in Fontenot, where the plaintiff had settled his claim via the LHWCA. These plaintiffs were extended LHWCA benefits and perhaps that distinction should govern, but neither this Court nor either party was able to cite jurisprudence which involved a plaintiff being denied the benefits of the LHWCA possibly in error, and how this situation differed from the rationale of Fontenot and Simms and how such a situation was to be resolved by the district court. Therefore, unfortunately, this Court is left with little guidance beyond the language cited above.

The record does not reflect that the Department ruling has been appealed within the Department, therefore it appears that the Department determination of plaintiff's status is final as within the Department. If this Court is bound by the language in Fontenot, supra and therefore, by the Department's ruling this Court must proceed from the premise that the LHWCA does not apply to Mr. Bergeron. Although the inequities of this situation are apparent and unfortunate this Court feels it is bound by the language of Fontenot unless the Fifth Circuit grants further guidance. Therefore, without further guidance, this Court will consider itself bound by Fontenot, supra.

Therefore, if the LHWCA does not apply, does the abolition of the Sieracki seaman doctrine forged through the amendments to the LHWCA also not apply? Arguably, it should not as those outside the Act were not involved in the balance struck as stated in Fontenot, supra citing Morrison-Knudsen Constr. Co. v. Director, Office of Workers' Compensation, 461 U.S. 624, 636, 103 S.Ct. 2045, 2052, 76 L.Ed.2d 194 (1983):

The LHWCA is not a simple remedial statute intended for the benefit of the workers. Rather, it was designed to strike a balance

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