Daugherty v. Cross Marine, Inc.

• Decision Date: 14 April 1992
• Docket Number: No. 91-CA-0897,91-CA-0897
• Citation: 598 So.2d 595
• Parties: Joseph D. DAUGHERTY v. CROSS MARINE, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 595

598 So.2d 595

Joseph D. DAUGHERTY v. CROSS MARINE, INC.

No. 91-CA-0897.

Court of Appeal of Louisiana, Fourth Circuit.

April 14, 1992.

Capitelli & Wicker, T. Carey Wicker, III, Richard A. Bordelon, New Orleans, for plaintiff/appellee.

Burke & Mayer, Wm. Daniel Wellons, William B. Schwartz, New Orleans, for defendant/appellant.

Before LOBRANO and ARMSTRONG, JJ., and TREVOR G. BRYAN, ^* J. Pro Tem.

TREVOR G. BRYAN, Judge Pro Tem.

In this maritime action, defendant, Cross Marine, Inc. (Cross) appeals a trial court judgment on the issues of plaintiff's status as a seaman, plaintiff's negligence, seaworthiness of a vessel and damages.

Plaintiff, Joseph D. Daugherty, an employee of Cross, sued Cross under the Jones Act, general maritime law, and laws of the State of Louisiana, for injuries he allegedly sustained in the course of his employment. After trial, a commissioner of civil district court found that Daugherty qualified as a Jones Act seaman and was injured as a result of the negligence of Cross and the unseaworthiness of one of its vessels. The trial judge granted judgment in favor of Daugherty, adopting the commissioner's report. Cross appeals. We affirm, but amend the judgment of the trial court.

In August 1986, Daugherty was hired by Cross to work as a deckhand aboard a jack-up barge named the M/V SOUTHERN CROSS V. He was to work offshore, on a fourteen day on/fourteen day off schedule.

In October 1986, Daugherty advised Cross that his girlfriend was seriously injured in an automobile accident, and he needed to take time off to care for her. About a month later, Mike McEntee of Cross asked Daugherty if he could return to work offshore, but Daugherty said no. A few weeks later McEntee again contacted Daugherty and asked if he would like to make extra money driving a truck to deliver groceries and supplies to its vessels--deliveries commonly known as "hotshot" runs and ordinarily offered to Cross employees on their days off. Hotshot drivers were paid hourly whereas deckhands were paid by the day. Apparently, hotshot drivers did not receive the benefits afforded deckhands.

Over the next few weeks, Daugherty did two hotshot runs. On December 24, 1986, he was injured while performing his third hotshot run involving the delivery of groceries and a washing machine to a Cross vessel docked in Intracoastal City.

When Daugherty arrived at the vessel the captain was scrubbing the deck with a soapy solution. Rather than rinsing the deck off with water, the captain intended to let a light rainfall rinse the deck. Daugherty put the first load of groceries into a basket which was placed on the deck by a crane. He boarded the vessel twice to bring two loads of paper towels to the galley. The second time, he crossed the deck and slipped and fell as he stepped down into the hatchway leading to the galley. He fractured his left forearm, requiring surgery to have a plate and graft placed at the fracture site. One month later Daugherty returned to work as a hotshot driver, and eventually obtained other employment in the sales field.

In the next two and a half years Daugherty underwent two more surgeries, one to replace the plate which became distorted in the healing process and another to remove it. After the plate was removed, Daugherty's treating physician assigned residual disability of ten percent to his left arm and restricted him in the use of his arm.

In its first assignment of error, Cross contends that the trial judge erred in finding that at the time Daugherty was injured, he was a seaman for Jones Act purposes. Cross claims that on the day of his accident, Daugherty was performing land-based work, requiring that his only remedy against Cross be under the Longshore and Harbor Workers' Compensation Act (LHWCA). Arguing that because Daugherty never gave a specific time period for his return to duty as a deckhand, his reassignment as a hotshot driver was permanent. Cross maintains that there was no competent evidence presented to show that the change in Daugherty's duties was for a temporary period. We disagree.

Documentary evidence presented at trial, along with the testimony, supports the findings that Daugherty was hired by Cross as a deckhand, that his status never changed and that all of the relevant parties assumed that he would return to work as a deckhand when the health of his girlfriend permitted. Thus, the conclusion that Daugherty was a seaman at the time of his accident is justified.

After being hired by Cross as a deckhand, Daugherty worked offshore for a total of 35 days--2 1/2 fourteen-day shifts. After he informed Cross that he would be unable to work offshore for an indefinite period of time, he received nothing from Cross indicating a change in his employment status, nor was he ever fired by Cross. Indeed, the testimony indicates that on several occasions, McEntee, and even the vessel's captain asked him to return to work offshore. McEntee, in fact, stated that hotshot runs were temporary assignments.

More importantly, Cross never changed Daugherty's employment status in his personnel file. And, in completing the "Employer's First Report of Injury" form pertaining to Daugherty's accident, Cross listed Daugherty's occupation as deckhand and his schedule as fourteen days on/fourteen days off. His hourly wage is listed in the accident report as $6.88, not the $6.00 per hour paid to hotshot drivers. Other Cross forms also list Daugherty's occupation as a deckhand.

We find these circumstances are sufficient to support a finding that Daugherty's assignment as a hotshot driver was temporary and that his general pattern of employment as a deckhand was not altered by the temporary assignment as a hotshot driver. See, Savoie v. Otto Candies, 692 F.2d 363 (5th Cir.1982). That Daugherty never provided Cross with a definite date he would return to work offshore is minimized by the failure of Cross to treat him as anything but a deckhand. Furthermore, since the evidence showed that hotshot runs are typically done by off-duty crew members, the nature of the assignment itself does not change Daugherty's status as a deckhand. It was within the trial court's discretion to overlook McEntee's vague remembrance that Daugherty once told him that he did not think he would ever return to work offshore.

In its second assignment of error, Cross contends that the trial court erred by failing to assess any negligence to Daugherty in light of what it claims is clear evidence of Daugherty's negligence, i.e. walking through what was obviously soapy water wearing a type of sandals.

The trial testimony indicates that when Daugherty arrived at the vessel to deliver the supplies, the captain was scrubbing the deck. Instead of hosing off the deck, however, he was letting a light rainfall rinse the soapy solution off. Moreover, both Daugherty and the captain believed that Daugherty would help unload the supplies, and the captain said nothing to Daugherty about the type of shoes he was wearing. There was conflicting testimony given on the presence or absence of a mat at the galley entranceway.

Given this testimony, the trial judge did not err in finding that Cross was negligent. In a Jones Act case, evidence of the...