Efferson v. Kaiser Aluminum & Chemical Corp., Civ. A. No. 91-3326

• Decision Date: 29 January 1993
• Docket Number: Civ. A. No. 91-3326,92-2959.
• Parties: Albert Paul EFFERSON, et ux v. KAISER ALUMINUM & CHEMICAL CORPORATION, et al.
• Court: U.S. District Court — Eastern District of Louisiana

816 F. Supp. 1103

Albert Paul EFFERSON, et ux v. KAISER ALUMINUM & CHEMICAL CORPORATION, et al.

Civ. A. Nos. 91-3326, 92-2959.

United States District Court, E.D. Louisiana.

January 29, 1993.

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Stephen Barnett Murray, Murray Law Firm, New Orleans, LA, Gordon R. Crawford, Gordon R. Crawford & Associates, Gonzales, LA, for Albert Paul Efferson and Mary Ann Efferson.

Antonio E. Papale, Jr. (argued), Hailey, McNamara, Hall, Larmann & Papale, Muriel O. Van Horn (argued), Lenfant & Associates, Metairie, LA, for Aetna Cas. and Sur. Co.

Jeffrey Allen Raines, Alan Robert Sacks, Sacks & Eason, Metairie, LA, C. William Bradley, Jr., John D. Ryland, Lemle & Kelleher, New Orleans, LA, for Kaiser Aluminum and Chemical Corp., Robert Ginn and Jack Carmena.

Campbell Edington Wallace, Hoffman, Sutterfield, Ensenat & Bankston, New Orleans, LA, Antonio E. Papale, Jr., Hailey, McNamara, et al., Metairie, LA, for Subsidiary of AKM, Inc., and Volks Constructors.

Edward Francis Lebreton, III, Cindy Teresa Matherne, Rice, Fowler, Kingsmill, Vance, Flint & Booth, New Orleans, LA, for Baloise Ins. Co. of America.

James Clayton Davie, Jr. (argued), Charles McLean Carr, III, McAlpine, Peuler, Cozad & Davie, New Orleans, LA, for Certain Underwriters, subscribing to Excess P & I Policy GCM-14044.

MEMORANDUM AND ORDER

SEAR, Chief Judge.

Plaintiffs — Albert Paul Efferson ("Efferson")¹, individually and as administrator of the estates of his minor children; and Mary Ann Efferson, wife of Albert Efferson — originally brought this action in state court against defendants Kaiser Aluminum & Chemical Corporation ("Kaiser") and two of Kaiser's employees. The plaintiffs' claims arise from injuries allegedly sustained by Efferson while working at the Kaiser plant dock in Gramercy, Louisiana. In September of 1991, Kaiser removed this action from state court, invoking the Court's diversity jurisdiction.²

Subsequent to removal, plaintiffs were granted leave to file an amended complaint naming Volks Constructors ("Volks") as an additional party defendant. Volks is a Louisiana corporation and was Efferson's employer at the time of the accident.³ Plaintiffs asserted a maritime tort claim against Volks, and bring the claim pursuant to § 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq.

A number of motions have been filed or reurged. Defendant Kaiser has re-urged its previously filed motion for summary judgment. Defendant Volks has re-urged its previously filed motion for summary judgment.⁴ Four of Volks alleged insurers have filed cross motions for summary judgment. Finally, plaintiffs have filed a motion for a jury trial pursuant to Rule 39(b) of the Federal Rules of Civil Procedure.

Factual Background

The basic factual background of this action is not contested by the parties. At the time of the accident, Efferson was a welder employed by defendant Volks. Volks was hired by defendant Kaiser to perform certain repairs at its dock facilities in Gramercy. Among other things, Volks was hired to replace timbers that were attached to the face of Kaiser's dock; these timbers acted as a fender to protect the dock.

Volks used two flat-deck barges, the CP4 and the KS412, during the course of the repairs. A mobile crane was placed onto the KS412, and various equipment and supplies, including the timber that was to be attached to the dock's face, were placed onto the CP4. The two barges were then transported to Kaiser's dock and lashed to each other and to the dock.

Some time before the accident, a portable aluminum ladder was extended from the deck of the CP4 to the face of the dock and tied off. Near the top of the ladder, near to the face of the dock, was a steel "H" beam. A number of steel posts, or angle irons, protruded from the beam. On the morning of November 21, 1990, as he was preparing to descend down the ladder to the CP4, Efferson grasped one of the angle irons protruding from the "H" beam. The angle iron broke off and Efferson fell from the dock onto the CP4.

Plaintiffs' complaint⁵ alleges that either Kaiser, Volks, or both are liable to plaintiffs. Plaintiffs seek damages from Kaiser under theories of negligence and strict liability, Complaint, ¶ 18; damages from Volks are sought only under negligence, Complaint, ¶ 27.

Dismissal of Robert Ginn and Jack Carmena

Kaiser moves for the dismissal of Robert Ginn and Jack Carmena from this action on grounds that plaintiffs have no cause of action against these individual defendants. None of the parties oppose the dismissal of Ginn and Carmena.

By order entered on February 20, 1992, my Brother Mentz denied plaintiffs' first motion to remand on grounds that plaintiffs had fraudulently joined Ginn and Carmena: "The defendants have satisfied their burden of showing that the plaintiffs have no possible cause of action against Ginn and Carmena." Order entered February 20, 1992, p. 2-3 (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir.1981)).

Accordingly, the claims against Robert Ginn and Jack Carmena are dismissed.

Kaiser's Motion for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) (emphasis added).⁶ When a moving party satisfies the requisites of Rule 56(c), a motion for summary judgment should be granted. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The inferences drawn from the underlying facts, however, must be viewed in a light most favorable to the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Finally, the substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Kaiser advances a number of arguments in support of its motion for summary judgment. First, Kaiser asserts that Efferson is covered under the Louisiana Worker's Compensation Act, La.Rev.Stat.Ann. § 23:1021 et seq. (West 1985 and 1992 Supp.). Consequently, Kaiser argues that it is Efferson's statutory employer and that compensation is Efferson's exclusive remedy against Kaiser. Second, Kaiser contends that it cannot be held liable for the negligence of Volks, an independent contractor. Third, Kaiser claims that it cannot be held strictly liable since Efferson's injuries were not caused by an unreasonably dangerous condition.

A. Louisiana Worker's Compensation Act

The Louisiana Worker's Compensation Act, La.Rev.Stat.Ann. § 23:1021 et seq., is the exclusive remedy of covered employees against their employers. La.Rev.Stat.Ann. § 23:1032(A)(1)(a).⁷ Like most workers' compensation acts, Louisiana's act provides covered employees with an expeditious no-fault statutory remedy for work related injuries. In exchange, workers relinquish their common law remedies — or, as in the case of Louisiana, their other civil law remedies — against the employer.⁸

The term "employer," for purposes of the Louisiana statute, may include entities other than an employee's immediate employer. Specifically, under § 23:1061 of the act, employees of subcontractors⁹ under certain circumstances are considered to be employees of the contractor for purposes of the act.¹⁰ La.Rev.Stat.Ann. § 23:1061.

Kaiser asserts that although it did not directly employ Efferson, it is Efferson's "statutory employer" under the Louisiana statute and consequently is not liable for anything other than the remedies provided for in the statute. Plaintiffs and Volks both contend that since Efferson may seek compensation pursuant only to the federal Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq., Kaiser is immune from a tort suit only if Kaiser is an "employer" as defined by LHWCA.¹¹ Under LHWCA, a contractor is an "employer" of a subcontractor's employee only if the subcontractor fails to secure the payment of compensation as required by LHWCA. 33 U.S.C. § 905(a).

If Efferson is eligible for compensation under LHWCA, then he cannot seek compensation under the Louisiana Worker's Compensation Act. La.Rev.Stat.Ann. § 23:1035.2¹² ("No compensation shall be payable in respect to the disability or death of any person covered by ... the Longshoremen's and Harbor Worker's Compensation Act, or any of its extension ...").¹³ In order to be covered by LHWCA, Efferson must meet both a situs test, 33 U.S.C. § 903(a), and a status test, 33 U.S.C. § 902(3).¹⁴

In order to satisfy 33 U.S.C. § 903(a), the injury for which compensation under LHWCA is sought must have occurred "upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel)." Kaiser's own "Statement of the Case" and statement of uncontested material facts indicate that at the very least a genuine issue of material fact exists regarding whether Efferson's injury meets the situs test of § 903(a). For example, Kaiser states, "Efferson's accident occurred as he was attempting to board a barge by climbing down a ladder which was tied to a drift fender structure connected to Kaiser's dock." Kaiser's Memorandum in Support, p. 1; see also Deposition of Albert Efferson, pp. 33, 34, and 53, Exhibit B attached to Kaiser's Memorandum in Support. "Kaiser's dock is used by Kaiser on a daily basis to offload bauxite...