Guidry v. ABC Ins. Co.
| Decision Date | 19 October 2016 |
| Docket Number | 16-61 |
| Citation | 206 So.3d 378 |
| Parties | Ernest GUIDRY, et ux. v. ABC INSURANCE COMPANY, et al. |
| Court | Court of Appeal of Louisiana — District of US |
L. Lane Roy, Jonathan A. Tweedy, BROWN SIMS PC, 1100 Poydras Street, 39th Floor, New Orleans, Louisiana 70163, (504) 569-1007, COUNSEL FOR DEFENDANT APPELLANT: Tanner Services, LLC
Blake R. David, J. Derek Aswell, Broussard & David, P. O. Box 3524, Lafayette, LA 70502-3524, (337) 233-2323, COUNSEL FOR PLAINTIFF APPELLEE: Ernest L. Guidry, Stacey Guidry
Kenneth G. Engerrand, BROWN SIMS PC, 1177 W. Loop South, 10th Floor, Houston, TX 77027, (713) 629-1580, COUNSEL FOR DEFENDANT APPELLANT: Tanner Services, LLC
Court composed of Sylvia R. Cooks, John D. Saunders, and Marc T. Amy, Judges.
This maritime injury dispute arose from an accident wherein a welder was injured while working on a floating mat for a bulkhead construction project. The Plaintiff, who suffered injuries when a vibrating hammer hit him, brought claims under the Jones Act. The trial court found the Plaintiff to be a seaman under the Jones Act and awarded general and special damages along with legal interest from the date of the accident. Defendant appealed. The issue of the Plaintiff's seaman status and the trial court's award of general damages and prejudgment legal interest are at issue.
FACTS:
Ernest Lee Guidry, hereinafter Plaintiff, was employed as a welder by Tanner Services, LLC, hereinafter Defendant, from February 2, 2010, until his injury on May 8, 2012.
Defendant was awarded a contract to construct a bulkhead in Grand Isle, Louisiana, starting in January 2012. The project in Grand Isle, Louisiana, hereinafter "the project," was estimated to last for about three to four months. Defendant had both a land division construction crew and a marine division crew. Plaintiff was reassigned from the land division to work for the marine division for the project. Prior to the project, Plaintiff worked in Eunice, Louisiana, at Defendant's shop.
Three barges and two tugboats were used to move the equipment, supplies, and to store materials, as well as to act as "floating docks" or "work stations" for a crane and preparatory welding. The barges were also used to house an office for supervisors, a tool shed, a welding machine, slings for the crane, a bathroom facility, and a floating mat used by Plaintiff and several other crew members.
The project was done in several parts: preparatory work while on the barge, removal of the old dock, and welding of the sheet piles and the king piles for the bulkhead while on the floating mat. King piles are structural support pilings that are driven into the ground prior to excavation and are welded to the sheet piles. Sheet piles are typically vertical steel pilings that create a wall when driven into the earth.
Once the old dock was removed, the construction of the new bulkhead began. The crane and a vibrating hammer were used for moving and driving the piles into place. The crane operator on the barge would lift a king pile, bring it towards the crew, and the vibrating hammer would drive it into place. The crane would then bring a sheet piling, and the welders on a floating mat would weld the piles together, similar to a metal fence.
Plaintiff spent time on the barges for both preparatory work and down time. Some of the preparatory work Plaintiff performed included welding connectors, cutting holes in sheet piles, and welding sheet piles together. Plaintiff welded portions of the barges, helped tie them off, and participated in a rescue and repair mission aboard one of the tugboats when a barge sailed adrift. Each morning on one of the barges, Plaintiff also attended a job safety analysis conducted with the entire marine division crew.
The majority of Plaintiff's time was spent on the floating mat. The mat was a large piece of wood which was described as a "raft" and "scaffold in the water." It could be moved from piling to piling through the use of ropes or paddles. The floating mat would be lifted out of the water and placed back on the deck of one of the barges for storage. While on the floating mat, Plaintiff was in communication with the barges and tugboats using radio.
According to his timesheets, Plaintiff spent 90% of his time on the water, on both the barges and the floating mat. Plaintiff was driving back and forth to the jobsite in the remaining time.
Plaintiff was injured when the vibrating hammer fell and struck him while he was welding piles on the floating mat. Plaintiff was knocked into the water by the hammer. Plaintiff endured multiple injuries and several surgeries after the incident including the amputation of four fingers, a crushed foot, herniated discs
, a concussion, depression, post-traumatic stress, and total and permanent disability.
After a bench trial on the merits, the trial court issued its Reasons for Judgment and found that Plaintiff was a seaman under the Jones Act and imposed liability against his employer in the amount of $3,885,911.69. Judgment was rendered on October 23, 2015.
In their first four assignments of error, Defendant asserts that the trial court erred in concluding that Plaintiff is a seaman under the Jones Act. We will address these four together since they are governed under the same standard of review and involve a singular issue: Plaintiff's seaman status.
STANDARD OF REVIEW:
The question of seaman status under the Jones Act is a mixed question of law and fact. McDermott Int'l, Inc. v. Wilander , 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991). When the underlying facts are established, and the rule of law is undisputed, the issue is whether the facts meet the statutory standard. Id. Louisiana courts of appeal apply the manifest error standard of review in Jones Act cases. Milstead v. Diamond M Offshore, Inc. , 95–2446 (La. 7/2/96), 676 So.2d 89 ; Day v. Touchard, Inc. , 97–1180 (La.App. 5 Cir. 5/27/98), 712 So.2d 1072 ; Gaston v. G & D Marine Servs., Inc. , 93–182 (La.App. 4 Cir. 1/19/94); 631 So.2d 547, writ denied , 94–436 (La.4/4/94); 635 So.2d 1112.
While factual determinations by the trier of fact are given great deference on appeal, if the trial court's decision was based on an erroneous application of law, rather than a valid exercise of discretion, the trial court's decision is not entitled to the deference it would otherwise enjoy. Lasha v. Olin Corp. , 625 So.2d 1002 (La.1993) ; We Sell Used Cars, Inc. v. United Nat'l Ins. Co. , 30,671 (La.App. 2 Cir. 6/24/98), 715 So.2d 656 ; Richard v. Mike Hooks, Inc. , 99–1631 (La.App. 3 Cir. 10/4/00, 3), 772 So.2d 148, 150–51, writ granted sub nom , Richard v. Hooks, Inc. , 01–0145 (La. 4/12/01), 788 So.2d 1197, and rev'd , 01–0145 (La. 10/16/01), 799 So.2d 462.
In their first assignment of error, Defendant contends the trial court erred in concluding that Plaintiff contributed to the function or mission of a vessel or fleet of vessels to satisfy the first element of the test for seaman status. We disagree.
In Chandris, Inc. v. Latsis , 515 U.S. 347, 368, 115 S.Ct. 2172, 2190, 132 L.Ed.2d 314 (1995) (citations omitted), the United States Supreme Court stated the following:
In the current case, the following is an excerpt of the deposition of Mr. David Smith, a representative of one of the appellants, Tanner Services, LLC:
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