Latimer v. Chet Morrison Contractors, CIVIL ACTION NO. 11-CV-806

• Decision Date: 09 October 2013
• Docket Number: CIVIL ACTION NO. 11-CV-806
• Citation: Latimer v. Chet Morrison Contractors, CIVIL ACTION NO. 11-CV-806 (W.D. La. Oct 09, 2013)
• Parties: BRANDON W. LATIMER v. CHET MORRISON CONTRACTORS
• Court: U.S. District Court — Western District of Louisiana

BRANDON W. LATIMER v. CHET MORRISON CONTRACTORS

CIVIL ACTION NO. 11-CV-806

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION

Dated: October 9, 2013

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING

Before the court is a motion for summary judgment filed by Chet Morrison Contractors L.L.C.(hereinafter "CMC") seeking dismissal of the plaintiff's claims against it based on the exclusivity provisions of the Longshore and Harbor Worker's Compensation Act(33 U.S.C. § 901 et.seq. hereinafter the LHWCA).¹Jurisdiction is based on 46 U.S.C. § 1331.For the reasons set forth below, the motion is GRANTED.

Factual and Procedural Background:

The plaintiff, Brandon Latimer, alleged that he was hired by CMC to work as a welder aboard the stationary platform known as 'Rig 245,' on the outer continental shelf off the coast of Louisiana.On July 16, 2009, Latimer's first day of work on the rig, he was carrying a lifeline rope from one area of the platform to another.He had the rope wrapped around his shoulders and trailing behind him.Latimer alleged that DefendantCharles Endom²"intentionally stepped on the rope," jerking Latimer backward.When Endom removed his foot from the rope, Latimer allegedly stumbled forward and slipped in a wet and dirty depression on the platform floor.Latimer alleged that as a result of the incident he sustained injuries to his neck, left shoulder, low back and left knee.³

Pertinent to this motion, Latimer alleged his injury was caused "by the negligence" of his employer CMC in failing to provide him "with a safe place to work and perform his duties; in failing to provide him with competent co-employees and experienced personnel; in failing to enforce proper rules and regulations for the safety of employees on the platform; and in failing to provide safe materials, means, appliances, and personnel for performance of his work."He has additionally alleged that CMC "was negligent and is liable for the negligence and intentional acts of its employee, Charles Endom, for deliberately stepping upon the trailing line and causing the injuries to plaintiff. . ."

Latimer also alleged the accident "was caused by the negligence" of Endom "By failing to work in a safe and cautious manner; and, by intentionally steppingupon the rope trailing from and wrapped around plaintiff's shoulders."

Finally, Plaintiff declared in the complaint that as a result of the accident, CMC paid benefits to the plaintiff under the LHWCA, and therefore, was a solidary obligor with other co-defendants.

It is undisputed that the plaintiff was an employee covered by the LHWCA, and he has filed and pursued a compensation claim under the Act with the U.S. Department of Labor.CMC asserts that Latimer's exclusive remedy against his employer for the alleged accident and injuries is worker's compensation benefits and there is no 'intentional tort' exception to the LHWCA's exclusivity provisions.Alternatively, CMC argues that even if the court were to recognize an intentional act exception, CMC cannot be liable under respondeat superior principles for the intentional act of its employee which was outside the course and scope of the employee's employment.

In response, the plaintiff argues that while the Fifth Circuit has yet to specifically recognize an 'intentional act' exception to the LHWCA exclusivity provision, there are indications in the jurisprudence that the court would be willing to do so under the right circumstances.The plaintiff further argues that the actions of Endom were admitted to be intentional, and they were undertaken during the course and scope of Endom's employment by CMC.Per the plaintiff, "[I]f thisdoes not present the right circumstances than[sic] there is nothing that will."⁴Finally, the plaintiff argues that at the very least, this case presents questions of fact involving key issues which must be resolved by trial on the merits.

Submitted in support of the motion is a declaration by Endom and excerpts from the deposition of the plaintiff.The plaintiff submitted the entirety of Endom's deposition at the time of the hearing.Endom admitted in the declaration that he stepped on the trailing end of the rope but "was simply playing and did not intend in any way to injure Mr. Latimer."⁵In his deposition, Endom testified there had been no animosity between he and Latimer; the incident occurred on the first day he worked with Latimer, and he was acting completely on his own.Since there had been some joking and playing around among the crew, he stepped on the line "in a joking manner," but did not intend to injure Latimer, and there was "no harm meant," all of which was consistent with his handwritten statement provided shortly after the time of the incident.⁶There is nothing in the testimony of the plaintiff to contradict these facts.

ANALYSIS

The Summary Judgment Standard:

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.A fact is material if proof of its existence or nonexistence might affect the outcome of the lawsuit under the applicable substantive law in the case.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986);Minter v. Great American Ins. Co. of New York, 423 F.3d 460, 465(5th Cir.2005).A genuine issue of material fact exists if a reasonable jury could render a verdict for the nonmoving party.Brumfield v. Hollins, 551 F.3d 322, 326(5th Cir.2008), citingAnderson v. Liberty Lobby, Inc., 477 U.S. at 252.

The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes demonstrate the absence of a genuine issue of material fact.Washburn v. Harvey, 504 F.3d 505, 508(5th Cir.2007), citingCelotex Corp. v. Catrett, 477 U.S. 317, 323(1986).If the moving party carries its initial burden, the burden shifts to the nonmoving party to demonstrate the existence of a genuine issue of a material fact.Id.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that there is insufficient proof concerning an essential element of the nonmoving party's claim.Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520 F.3d 409, 412(5th Cir.2008), citingCelotex Corp. v. Catrett, 477 U.S. at 325.The motion should be granted if the non-moving party cannot produce evidence to support an essential element of its claim.Condrey v. Sun Trust Bank of Georgia, 431 F.3d 191, 197(5th Cir.2005).

The LHWCA and the Exclusivity Provision:

There is no dispute that Latimer's claim against CMC is governed by the provisions of the Outer Continental Shelf Lands Act (OCSLA)43 U.S.C. §1331 et seq.⁷, and thereby, the provisions of the LHWCA.⁸

In 1927, Congress passed the LHWCA to give longshoremen a nationalworkmen's compensation law to fill the void created by decisions of the Supreme Court that longshoremen could not come within state compensation laws nor be placed therein by an act of Congress.Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 249-50(1941).The dominant intent of Congress in enacting the LHWCA was to help longshoremen.Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 1051(5th Cir.1983).Therefore, as remedial legislation, the Act"must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results."Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 268(1977), quotingVoris v. Eikel, 346 U.S. 328, 333(1953).

Like other workers' compensation statutes, the LHWCA represents a compromise between employees and their employers whereby employers relinquish their defenses to tort actions in exchange for limited and predictable liability, and employees accept the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail.SeeFisher v. Halliburton, 667 F. 3d at 610, citingMorrison-Knudsen Constr. Co. v. Director, Office of Workers' Comp. Programs, 461 U.S. 624, 636(1983).Keeping these policies in mind, as in any case involving the interpretation of a statute, it is appropriate to begin with the statute's pertinent language.United States v. Rains, 615 F.3d 589, 596(5th Cir.2010)citingWatt v. Alaska, 451 U.S.259, 265(1981).

Pursuant to §903 of the Act, a worker who comes within the coverage of the LHWCA, is entitled to compensation for disability "only if the disability . . . results from an injury. . .."Section 902(2) defines injury as:

accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.

As part of the employer/employee compromise, pertinent provisions of § 905(a) make an employer's liability under the workers' compensation scheme exclusive:

The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death.⁹

Nothing in the language of the provision identifies an...