Bourgeois v. Puerto Rican Marine Management, Inc.

• Decision Date: 14 November 1991
• Docket Number: No. 91-CA-0212,91-CA-0212
• Citation: 589 So.2d 1226
• Parties: Mrs. Gloria BOURGEOIS, et al, v. PUERTO RICAN MARINE MANAGEMENT, INC., a/k/a Navieras De Puerto Rico. 589 So.2d 1226
• Court: Court of Appeal of Louisiana — District of US

Page 1226

589 So.2d 1226

Mrs. Gloria BOURGEOIS, et al, v. PUERTO RICAN MARINE MANAGEMENT, INC., a/k/a Navieras De Puerto Rico.

No. 91-CA-0212.

589 So.2d 1226

Court of Appeal of Louisiana Fourth Circuit.

Nov. 14, 1991.

As Amended Nov. 19, 1991.

Writ Denied Feb. 7, 1992.

Charles A. Kronlage, Jr., New Orleans, for plaintiffs/appellees.

Joel L. Borrello, Leslie A. Lanusse and E. Gregg Barrios, Adams and Reese, New Orleans, for defendant/appellant.

Richard S. Vale, Blue, Williams & Buckley, Metairie, for defendant/appellee.

Georges M. Legrand and C. William Emory, Hebert, Mouledoux & Bland, New Orleans, for intervenor/appellee.

Before KLEES, BYRNES and PLOTKIN, JJ.

PLOTKIN, Judge.

Defendant Puerto Rico Marine Management, Inc. (PRMMI) appeals a trial court judgment in favor of plaintiffs, the survivors of Eldridge J. Bourgeois (Bourgeois), making numerous assignments of error. After considering all of PRMMI's claims, we amend the judgment and affirm.

FACTS

Bourgeois was fatally injured on December 19, 1986, when he was hit by a tractor driven by co-employee, Henry Glover, while engaged in his occupation as a stevedore for Cooper/T. Smith (Cooper). Cooper was under contract with PRMMI on a cost-plus basis to provide stevedoring services at PRMMI's France Road facility in New Orleans, where the accident occurred. PRMMI leased the facility from the Board of Commissioners, Orleans Levee District (Dock Board). PRMMI designed and constructed all the improvements on the property.

On the morning the accident occurred, Bourgeois was working as a clerk/checker, verifying numbers and checking seals on containers which were being unloaded from a ship docked at the facility. He was working in an intersection at the "South Gate," where an east/west road which connected the dock with the main yard crossed a north/south road used by workers to move empty containers from the main yard to the holding yard. An "inspector's shack," from which the checkers worked, was located in the roadway at the southwest corner of the intersection. Glover, who was driving an empty tractor, was making a left turn from the south to the west, around the inspector's shack, when he struck Bourgeois. A tractor with a container attached, driven by Cooper employee Lawrence Walker, was coming off the ship and was stopped on the east side of the intersection. The evidence presented at trial indicates that Walker signaled to Glover that Glover should proceed him into the intersection, although Glover had the stop sign. (See appended diagram.)

Bourgeois' survivors, including his wife and two adult daughters, brought suit against PRMMI and New Orleans Private Patrol Services, Inc. (NOPPS), which was under contract with PRMMI to provide security and safety services at the yard where the incident occurred. PRMMI filed a third-party demand against Cooper. Following a five-day trial, a jury returned a verdict, assigning 55 percent of the fault for the accident to PRMMI and 45 percent of the fault to Cooper. Mrs. Bourgeois was awarded $1,185,000, while each of the daughters was awarded $250,000. The jury made a separate award of $50,000 for Bourgeois' pain and suffering; that amount was divided equally between the three plaintiffs by the trial court judge. First, PRMMI contests the denial of its affirmative defense. Second, PRMMI alleges numerous legal errors in the trial judge's jury charges and evidentiary rulings which it claims entitles it to a de novo review of the jury verdict. Finally, PRMMI contests both liability and quantum.

I. AFFIRMATIVE DEFENSE

PRMMI's major contention on this issue centers on its claim that it is immune from liability for Bourgeois' death because it was Bourgeois' statutory employer under Louisiana's Worker Compensation Act at the time of the accident. The plaintiffs claim that PRMMI is not entitled to the statutory employer defense because the Longshore and Harbor Worker's Compensation Act (LHWCA) rather that the Louisiana Worker's Compensation Act applies to this case since Mrs. Bourgeois chose to receive benefits under the LHWCA after her husband's death.

A. Application of LHWCA

Since Bourgeois' death occurred on the land side of a waterfront cargo facility, it occurred in an area subject to concurrent state and federal jurisdiction. See Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980); Logan v. Louisiana Dock Co, Inc., 541 So.2d 182, 184 (La.), cert. dismissed 492 U.S. 939, 110 S.Ct. 30, 106 L.Ed.2d 639 (1989). One result of this fact is that Bourgeois' survivors had a right to choose between state workers' compensation benefits and federal LHWCA benefits. Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976), appeal dismissed Territo v. Poche, 434 U.S. 803, 98 S.Ct. 31, 54 L.Ed.2d 60 (1977). Mrs. Bourgeois chose LHWCA benefits.

On the basis of this selection of LHWCA benefits over state workers' compensation benefits, the plaintiffs contest PRMMI's right to raise the "statutory employer" defense, which would make PRMMI immune from liability under state law, but not under federal law. The plaintiffs would have this court rule that defenses available to defendants can be determined by a selection of benefits made by plaintiffs. They cite Poche in support of this position.

In Poche, the court initially held that a plaintiff who "availed himself of the benefits under the LHCA" did not have a cause of action under state law for injuries occurring in the area of concurrent state and federal jurisdiction, but that plaintiffs who "elected to sue under the state law and declined to accept LHCA benefits" did have a state cause of action. Id. at 1221. On rehearing, the court vacated its original judgment, citing a lack of "evidence in the record establishing that [the plaintiff] made an election, or a choice of L.H.C.A. remedies," saying that the record only contained "evidence that he has accepted benefits under the L.H.C.A. Act," and remanded the case "for the purpose of trying the issue of whether [the plaintiff] elected federal benefits." From this language, the plaintiffs in the instant case argue that state law defenses should not be available to defendants when the plaintiff has make a valid election of LHWCA benefits over state workers' compensation benefits.

However, the instant case is easily distinguished from Poche. In Poche, the sole issue considered by the court was whether persons injured while building ships had a cause of action under state law or whether their actions were under the exclusive jurisdiction of the LHWCA. In the instant case, the plaintiffs have filed a suit under state law and seek to prevent the defendants from raising state law defenses. The question at issue in Poche has been definitely decided in the affirmative--parties injured in places subject to concurrent state and federal jurisdiction do have a cause of action in state law; federal jurisdiction is not exclusive under those circumstances.

Moreover, even a cursory review of the caselaw on the subject, most of which is cited by plaintiffs, reveals that defendants are prohibited from raising the statutory employer defense only when the plaintiffs have chosen to sue under federal law. See Roberts v. Avondale Shipyards, Inc., 537 So.2d 808 (La.App. 5th Cir.1989) (Plaintiff filed a negligence action under the LHWCA and not under state law.); Gates v. Shell Oil, 812 F.2d 1509 (5th Cir.1987) (Plaintiff filed suit under the Continental Shelf Lands Act). The caselaw indicates that all provisions of state law apply, including the statutory employer defense, when the plaintiff files suit under state law, regardless of whether the plaintiff has received state workers' compensation benefits or federal LHWCA benefits. See Garvin v. Alumax, 787 F.2d 910 (4th Cir.1984), cert. denied 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986); Trussell v. Litton Systems, Inc., 753 F.2d 366 (5th Cir.1984); Griffis v. Gulf Coast Pre-Stress Co., 563 So.2d 1254 (La.App. 1st Cir.1990), writ denied 568 So.2d 1054 (La.1990); Lewis v. Modular Quarters, 508 So.2d 975 (La.App. 3d Cir.), writ denied 514 So.2d 127 (La.1987), cert. denied 487 U.S. 1226, 108 S.Ct. 2886, 101 L.Ed.2d 920 (1988).

Thus, the plaintiffs' contentions are rejected. Plaintiffs cannot be allowed to seek remedies under state law and, at the same time, to deny defendants the right to raise state law defenses. The trial court properly allowed the statutory employer defense to go to the jury.

B. Statutory Employer Defense

In the instant case, the jury specifically answered the following question in the negative: "Was the work being performed by Cooper T. Smith (sic) Stevedoring Inc. part of the regular trade, business or occupation of Puerto Rico Marine Management Inc.?" That jury finding precludes PRMMI's affirmative defense that it was Bourgeois' statutory employer and thus entitled to tort immunity. On appeal, PRMMI challenges that finding, arguing primarily that since cargo movement was the only function of PRMMI's France Road facility, where the accident occurred, stevedoring work is obviously part of PRMMI's trade, business, or occupation.

However, PRMMI oversimplifies the legal question. Under the provisions of LSA-R.S. 23:1032, workers' compensation benefits are the exclusive remedy of an employee who is injured during the course and scope of his employment duties; thus, employers are immune from tort liability for injuries sustained by employees under those circumstances. LSA-R.S. 23:1032, the "statutory employer" law, extends workers' compensation liability, and thus tort immunity, to the following two groups of "principals" other than direct employers: (1) those for whom the injured employee's work is part of their "trade, business, or occupation" ("one-contract cases"), and (2) those who contract with the injured employee's direct employer to perform work which the principal has contracted with another to perform ("two-contract cases"). Se...