King v. Universal Elec. Const.

• Decision Date: 17 September 1986
• Docket Number: No. 86-4109,86-4109
• Citation: 799 F.2d 1073
• Parties: Connie C. KING, Plaintiff-Appellant, v. UNIVERSAL ELECTRIC CONSTRUCTION, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1073

799 F.2d 1073

1988 A.M.C. 1295

Connie C. KING, Plaintiff-Appellant, v. UNIVERSAL ELECTRIC CONSTRUCTION, et al., Defendants-Appellees.

No. 86-4109

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 17, 1986.

C. Brent Coreil, Anthony C. Dupre, Ville Platte, La., for plaintiff-appellant.

Keith M. Borne, Lafayette, La., Allen L. Smith, Jr., Lake Charles, La., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before GEE, REAVLEY, and JOLLY, Circuit Judges.

PER CURIAM:

The issue for decision is whether the widow of an electrical construction lineman who drowned in a navigable river while preparing to build a line across it has a remedy under the general maritime law for the wrongful death of her husband.

The trial court observed:

On October 28, 1983, the plaintiff's decedent, Brent Wayne King, was employed by Universal Electric Construction Company [hereinafter "Universal"] as a lineman, who had worked for Universal for approximately 3 years in constructing and stringing various electrical lines. On the date of the incident in question, Universal was working pursuant to its contract with the defendant, CLECO to construct particular electrical lines, requiring that lines be run across the Red River in Rapides Parish, Louisiana. In order to run the electrical lines across the Red River, a 14-foot aluminum skiff owned by Universal was delivered to the river where it became equipped with a 20-horsepower Mercury motor. The plaintiff's decedent had never been involved in any previous river crossings during his employment with Universal, and this was the first day he used any boat on the job. Before the skiff was to start running lines across the river, the plaintiff's decedent took it for a "test ride" during which he fell from the boat and drowned in the Red River.

On these facts, which it correctly characterized as undisputed, the trial court concluded that Mr. King was not a Jones Act seaman because he was neither permanently assigned to the skiff nor did he perform a substantial amount of his work aboard it. Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986) (en banc). Nor, it determined, was he a longshoreman, as he failed the "status" element of the dual situs/status test laid down in Herb's Welding, Inc. v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985). These holdings are plainly correct; and if the plaintiff complains of them to us (her brief is ambiguous on the point), we affirm them. The trial court omitted to rule on the plaintiff's general maritime law claim for wrongful death, however, and this is assigned as error. Because the essential facts are settled, it is appropriate for us to apply the law to them and rule on that claim today.

Appellant King contends that Thibodaux v. Atlantic Richfield Company, 580 F.2d 841 (5th Cir.1978) controls this case, and indeed it is closely in point. There a similar set of wrongful death claims was advanced by the widow of an oil field maintenance and construction worker, who drowned in a canal when a launch sank, against his "statutory employer." ¹ The defendant pleaded the "exclusive remedy" provision of the Louisiana Worker's Compensation Act. We held that the trial court erred in accepting that plea because, when admiralty jurisdiction exists, "an exclusive remedy provision in a state workman's compensation law cannot be applied when it will conflict with maritime policy and undermine substantive rights afforded by federal maritime law." 580 F.2d at 847. Appellee maintains that Thibodaux does not control because, in today's case, the action is brought against Mr. King's actual employer, rather than against one merely deemed by Louisiana law to stand in his shoes. We discern no substance in this attempted distinction: by Louisiana law, a "statutory employer" is equally as entitled to plead "exclusive remedy" as is an actual one; and, if admiralty jurisdiction exists, such a plea is as equally overridden by federal maritime law in the one instance as in the other. Thus our inquiry comes down to whether Mrs. King has "stated a cause of action within admiralty jurisdiction." 580 F.2d at 846 n. 14. At the note cited, speaking of our earlier decision in Kelly v. Smith, 485 F.2d 520 (5th Cir.1973), we observed that in that opinion we recognized that locality alone is insufficient for invocation of admiralty jurisdiction. We held that, in addition to satisfying the locality test, the facts and circumstances of the claim must bear a significant relationship to traditional maritime activity. We stated that in determining whether such a significant maritime relationship exists, the court should consider the following: the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and type of injury; and traditional concepts of the role of admiralty law. 485 F.2d at 525. We noted that "Admiralty has traditionally been concerned with furnishing remedies for those injured while traveling navigable waters," 580 F.2d at 846.

Resort to the actual opinion in Kelly throws further light on the issues before us. In that case, poachers on an island hunting preserve in the Mississippi River, who were fired on and wounded by gamekeepers while fleeing the island in a boat, sued in admiralty for their injuries. Our panel commenced its analysis with a discussion of the (then) recent Supreme Court decision in Executive Jet Aviation v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), noting that after it was handed down mere maritime situs was no longer sufficient, if ever it had been, to sustain maritime jurisdiction--that to do so the wrong complained of must also bear a significant relationship to...