Kahue v. Pac. Envtl. Corp.
| Decision Date | 29 November 2011 |
| Docket Number | Civil No. 10–00001 LEK–KSC. |
| Citation | 834 F.Supp.2d 1039 |
| Parties | Cedric K. KAHUE, Plaintiff, v. PACIFIC ENVIRONMENTAL CORPORATION, et al., Defendant. |
| Court | U.S. District Court — District of Hawaii |
OPINION TEXT STARTS HERE
Allen K. Williams, Collin Marty Fritz, Trecker & Fritz, Honolulu, HI, Cory A. Birnberg, Birnberg & Associates, San Francisco, CA, for Plaintiff.
Normand R. Lezy, Shawn L.M. Benton, Leong Kunihiro Lezy & Benton, Honolulu, HI, Richard C. Wootton, Courtney M. Crawford, Galin G. Luk, Cox Wootton Griffin Hansen & Poulos LLP, San Francisco, CA, for Defendants.
ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND (2) DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON COMPLAINT IN INTERVENTION
Before the Court are the following motions: (1) Defendants Pacific EnvironmentalCorporation, M/V PENCO 1, and M/V PENCO 2's (collectively “Defendants” or “PENCO”) Motion for Summary Judgment (“Motion”), filed on July 19, 2011; and (2) PENCO's Motion for Summary Judgment on Complaint in Intervention (“Motion on Complaint in Intervention”), filed on August 3, 2011. Plaintiff Cedric Kahue (“Plaintiff” or “Kahue”) filed his memorandum in opposition to the Motion on October 12, 2011, and PENCO filed its reply on October 19, 2011. Intervenor Commerce and Industry Insurance Company (“Intervenor” or “CIIC”) filed its memorandum in opposition to the Motion on Complaint in Intervention on October 12, 2011, and PENCO filed its reply on October 19, 2011. These matters came on for hearing on October 31, 2011. Appearing on behalf of PENCO was Richard Wootton, Esq., appearing on behalf of Plaintiff were Cory Birnberg, Esq., Collin Marty Fritz, Esq., and Allen Williams, Esq., and appearing on behalf of Intervenor was Lynn Krieger, Esq. After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, PENCO's Motion is HEREBY GRANTED IN PART and DENIED IN PART—the Motion is GRANTED as to Plaintiff's Count II claim for unseaworthiness and DENIED in all other respects—and PENCO's Motion on Complaint in Intervention is DENIED for the reasons set forth below.
On January 1, 2010, Plaintiff filed a Complaint against Defendants, seeking recovery under the Jones Act, 46 U.S.C. § 30104, for injuries incurred while employed as a seaman by Defendants. He alleges that, on June 12, 2008, he was injured while preparing for a hazardous waste spill response when a large bale of rags from the second story of a PENCO building fell on his head. As a result, Plaintiff is a partial quadriplegic. [Complaint at ¶¶ 13–14.] Plaintiff alleges claims for: (1) negligence (Count I); (2) unseaworthiness (Count II); and (3) traditional maritime remedies, including maintenance, cure, found, and wages (Count III). [ Id. at ¶¶ 17–30.]
On April 13, 2011, Intervenor CIIC filed its First Amended Complaint in Intervention, alleging that it issued an insurance policy to PENCO against claims under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (“Longshore Act” or “LHWCA”), under which it paid workers' compensation benefits to Plaintiff. [First Amended Complaint in Intervention at ¶ V.] Intervenor alleges that it continues to pay disability compensation and medical expenses for Plaintiff as a result of the June 12, 2008 injury, and that it is subrogated to the rights of PENCO and has a lien against any recovery by Plaintiff in this case. [ Id. at ¶ X.]
I. Defendants' Motion
Defendants seek summary judgment on all of Plaintiff's claims on the grounds that Plaintiff may not recover under the Jones Act because he does not qualify for seaman status, and is already receiving lifetime benefits under the Longshore Act. Alternatively, Defendants seek partial summary judgment on Plaintiff's Count II unseaworthiness claim because no vessel was involved, and on their affirmative defense to limit liability to the value of the vessel involved pursuant to 46 U.S.C. § 30501 et seq. []
PENCO states that it provides environmental remediation and spill cleanup services, primarily on land, involving hazardous material and oil spill response operations on roads and in warehouses, factories, piers, and shipping containers. [Defendants' Separate and Concise Statement of Facts (“CSF”), Declaration of Teal Cross (“Cross Decl.”), at ¶ 2.] PENCO also performs soil remediation, oil pumping and processing facilities excavation, above and underground storage tank removal, and hazardous materials disposal. [ Id. at ¶ 3.]
According to Teal Cross, PENCO's Executive Vice President, a small percentage of PENCO's work takes place at sea, including marine spill responses, deploying containment booms around vessels for fueling, and transporting people and equipment to and from jobsites. [ Id. at ¶ 4.] PENCO's marine operations are conducted primarily from its Boston Whaler, Radon, and three unpowered skiffs; PENCO employees occasionally work on vessels owned by the Clean Islands Council (“CIC”), a customer of PENCO's, and American Marine Corporation (“AMC”), a separate business entity. [ Id. at ¶¶ 7–9; Defendants' CSF, Declaration of Scott Vuillemot (“Vuillemot Decl.”), at ¶ 3.]
PENCO states that it hired Plaintiff in 1996 as a laborer, and he later worked as a HAZMAT technician and foreman. [Cross Decl. at ¶ 11.] According to Mr. Cross, the “vast majority of Plaintiff's work with PENCO was on land jobs operating cranes, backhoes, excavators, dozers, boom trucks, loaders, forklifts and pickup trucks.” [ Id. at ¶ 12.] Plaintiff also worked on or under piers, vessels tied up to piers or in drydock, and on vessels in harbor or at sea. [ Id. at ¶¶ 14–16.] His marine work included operating PENCO's skiffs to place oil containment booms around vessels taking on or discharging fuel, transporting passengers and equipment, and occasionally, performing oil spill clean up and training. [ Id. at ¶ 18.] Plaintiff also operated and worked aboard skiffs owned and controlled by CIC or AMC's boats. [ Id. at ¶ 19.] According to Mr. Cross, during Plaintiff's entire employment with PENCO, he spent 14.82% of his time in the service of PENCO's skiffs away from a dock or underway, 2.72% of his time was on vessels owned by AMC, and 2.18% on CIC's and other company's vessels. [ Id. at ¶¶ 23–24.]
Mr. Cross asserts that PENCO is always prepared to respond to land or marine cleanup projects, but that it does not expect its employees to be available for every job arising after normal work hours, and no PENCO employees are on call for service on the skiffs. [ Id. at ¶ 25.] He claims that PENCO allowed Plaintiff to live at its shop as an accommodation to him, because, in 2003, Plaintiff was evicted from his apartment and began sleeping at the shop without approval. PENCO purchased a shipping container to be modified as an apartment, which Plaintiff paid for through payroll deductions. This accommodation was not contingent on Plaintiff being available for work at any time after his regular shift ended. That is, when off work, PENCO did not require Plaintiff to be at the pier and he was not paid for time spent there. [ Id. at ¶ 26.]
On the date of Plaintiff's injury, Plaintiff was the foreman in charge of mobilizing equipment and supplies at PENCO's shop for a highway spill response job in Honolulu. Plaintiff ordered two co-workers, James Uyehara and Jarvis Kanakaole, to load necessary supplies and equipment into a truck. The supplies were in a storeroom on the second floor of the shop. Kahue testified that he expected his co-workers to carry the supplies down the stairs, while he waited next to the truck. Mr. Uyehara, however, dropped an unopened bale of cleaning rags, weighing forty to fifty pounds, rather than carrying it down. No one was acting as lookout and Mr. Uyehara did not call out a warning. The bale of rags hit Plaintiff on the head. Plaintiff agrees that if proper PENCO procedures for loading supplies were followed, he would not have been hit in the head. [Defendants' CSF, 4/20/11 Deposition of Cedric Kahue (“Kahue Dep.”), at 159, 361–376 1.]
Defendants first argue that Plaintiff's Jones Act claim fails because he was a land-based worker, not a seaman. They contend that Jones Act seamen have traditionally been afforded heightened protections not available to land-based maritime workers. [Mem. in Supp. of Motion at 9 (citing Chandris v. Latsis, 515 U.S. 347, 354, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995)).]
In order to qualify as a seaman, Plaintiff must both: (1) have an employment related connection to a vessel in navigation on the navigable waters of the United States; and (2) contribute to the function of the vessel or the accomplishment of its mission. To satisfy the first prong, a seaman must have a connection to a vessel (or group of vessels) that is substantial in terms of both its duration and its nature. [ Id. (citing Chandris, 515 U.S. at 354, 115 S.Ct. 2172).]
PENCO argues that Plaintiff was not in the service of a vessel at the time of his injury, and spent less than twenty percent of his time on PENCO's marine projects. It argues that, under Chandris, a worker's service to a vessel is determinative of his status as a seaman, and that a seaman must have an enduring relationship with the vessel. Even if Plaintiff could show that he otherwise met the duration requirement, he was working on a land-based job at the time of the accident and was not in service of any vessel. That is, his injury did not arise out of his service to any vessel. [ Id. at 10–11.]
Next, PENCO argues that Plaintiff's work does not satisfy the duration element of the substantial connection test, which requires that roughly thirty percent of a worker's time be spent in service of a vessel in navigation. Here, Plaintiff spent only 14.82% of his time in service of PENCO's vessels. The duration element is proper on summary judgment because, “where...
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