Legros v. Panther Services Group, Inc.

• Decision Date: 29 December 1988
• Docket Number: No. 87-4370,87-4370
• Citation: 863 F.2d 345
• Parties: , 1990 A.M.C. 209 Gus R. LEGROS and Betty Legros, Plaintiffs-Appellees Cross-Appellants, v. PANTHER SERVICES GROUP, INC., et al, Defendants-Appellees, National Union Fire Insurance Co. of Pittsburgh, Defendant-Appellant Cross- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 345

863 F.2d 345

190 A.M.C. 194, 1990 A.M.C. 209

Gus R. LEGROS and Betty Legros, Plaintiffs-Appellees Cross-Appellants, v. PANTHER SERVICES GROUP, INC., et al, Defendants-Appellees National Union Fire Insurance Co. of Pittsburgh Defendant-Appellant Cross- Appellee.

No. 87-4370.

United States Court of Appeals Fifth Circuit.

Dec. 29, 1988.

Order Granting Rehearing En Banc Feb. 8, 1989.

John A. Jeansonne, Jr., Jeansonne & Briney, Lafayette, La., for defendant-appellant cross-appellee.

Terrell D. Fowler, Cox, Cox, Townsley & Fowler, Lake Charles, La., for appellees.

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

Before WISDOM, RUBIN, and JONES, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The issue is whether the status of a worker found by the district court, on the basis of sufficient evidence, to be a seaman under general maritime law and therefore entitled to maintenance and cure should instead have been determined by first asking whether the worker might have been a harbor worker, and, if the answer were affirmative, concluding that this precluded a finding that he had seaman's status. We conclude that the district court did not err in applying the traditional test of this circuit, set forth in Offshore Company v. Robison, ¹ for determining seaman's status and that the court was not required initially to consider and reject harbor-worker status.

I.

After being hired in February, 1985 by defendant Bengal Marine ("Bengal") to do construction work, Gus R. Legros continued in the employment of Bengal's corporate successor, Panther Services Group, Inc. ("Panther"). These companies operated a group of construction barges on navigable waters in southern Louisiana. At first Legros operated a crane on one of the barges, but later he was assigned to maintain the engines and other equipment on a number of barges.

According to Legros' immediate supervisor, he was basically a construction worker, but Panther had run out of construction work. Not wanting to lose the services of this good worker, Panther assigned him in March, 1985, to do odd jobs on its barges, including chipping, painting, repairing, inspecting, and on occasion moving the vessels around the Panther docks. Legros testified that these various tasks on the barges constituted all of his work, he spent 95 to 97% of his time on water rather than land, and he ate and slept on the vessels except when his work on land required him to be near his home in Krotz Springs, Louisiana, at the end of the day. Other witnesses agreed that Legros ate and slept on the vessels at least some of the time and testified that, after he was reassigned to barge work, his time on land was spent mostly going from one barge job to another.

Legros was eventually assigned to supervise co-workers who were refitting one of the Panther barges, the HILLMAN 3, to convert it from a deck barge to a derrick barge. This job occupied several weeks, during which Legros did no chipping or painting but did do some minor engine repairs. He slept on one of the barges most nights, but went home on the night of May 17, 1985, and perhaps the preceding night. While he was overseeing workers who were welding shut hatches on the HILLMAN 3, on May 18, he fell into an open hatch and injured his back.

Legros sued those he alleged controlled the barge: Michael Hillman, the owner of the barge; Panther; Bengal; and their insurer, National Union Fire Insurance Company ("National Insurance"). He sought maintenance and cure under general maritime law, damages under the Jones Act, ² and attorney's fees and penalties for the nonpayment of maintenance and cure. The district court granted Legros' motions to sever his maintenance and cure claims from his Jones Act claim and to sever National Insurance from the other defendants. The court also stayed all proceedings against Hillman, Panther, and Bengal, who were bankrupt. The parties then consented to try the maintenance and cure claims against National Insurance before a magistrate.

Applying the two-part test used in this circuit since Offshore Company v. Robison ³ to determine "seaman" status under both the Jones Act and general maritime law, ⁴ the magistrate concluded that Legros was a "seaman" entitled to maintenance and cure because he performed a substantial part of his work aboard an identifiable fleet of vessels and contributed to their functioning and maintenance. The magistrate ruled, however, that because "there were genuine issues of fact and law with respect to plaintiff's status as a seaman and the extent of his injuries," National Insurance was not liable for penalties and attorney's fees for refusing to pay maintenance and cure.

II.

Nine days after the magistrate's ruling, this court decided Pizzitolo v. Electro-Coal Transfer Corp. ⁵ in which we affirmed a trial court's judgment n.o.v., holding that, as a matter of law, a harbor-bound employee engaged in an occupation specifically enumerated in the Longshore and Harbor Workers' Compensation Act ("LHWCA") ⁶ is not a seaman entitled to the benefit of the Jones Act coverage and that a Robison analysis, such as the magistrate performed, is therefore unnecessary. ⁷ National Insurance did not seek rehearing in the district court, but instead appealed, asserting that, as a matter of law, Legros was a ship repairman, hence a longshoreman, and so he cannot be found to be a seaman no matter what his vessel-related duties were, and that, therefore, Pizzitolo requires reversal of the judgment.

The LHWCA covers "any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include ... a master or member of a crew of any vessel ..." or a number of other excepted classes of workers such as clerical workers, club employees, and certain marina employees. ⁸ The term "member of the crew of the vessel" as used in the LHWCA is of course synonymous with the term "seaman" as used in the Jones Act ⁹ and general maritime law. The issue in Pizzitolo was therefore whether the worker was either a seaman/crew member or not, and the fact that the case involved a claim for damages under the Jones Act rather than for maintenance and cure under general maritime law is immaterial.

Pizzitolo, an electrician for a coal terminal, who received his assignments from a shore-based shop, spent 75% of his time repairing shore-based machinery and 25% repairing equipment on vessels tied to the dock. He worked a standard 40-hour week and returned home at the end of each work day. Pizzitolo held that the LHWCA and the Jones Act are mutually exclusive, and that because the LHWCA covers shore-based repairmen, Pizzitolo, as a matter of law, was not a seaman. ¹⁰

That the Jones Act and the LHWCA are mutually exclusive is not only evident from the statutory language but is supported by a host of decisions. ¹¹ The issue then is solely the method of determining whether a particular worker is a seaman or a harbor worker. The issue may arise in two fashions: the evidence is so one-sided that status can be determined as a matter of law, or the evidence is so inconclusive that the determination of status becomes a question of fact.

Pizzitolo cited our statements in Bouvier v. Krenz that a "harbor-bound ship repairman is as a matter of law not a 'member of a crew' and thus not a Jones Act seaman" ¹² and in Balfer v. Mayronne Mud & Chemical Company that "[v]iewing the record in the light most favorable to Balfer, it is manifestly clear that Balfer [a shore-based stevedore who worked sporadically on vessels] was a longshoreman and not a seaman." ¹³ In both Bouvier and Balfer, however, we had applied the Robison test to determine whether summary judgment was appropriate, ¹⁴ just as we had in numerous other cases upholding summary judgment against shore-based workers. ¹⁵ Thus, in Bouvier, we said, "the term 'master or member of a crew' in the LHWCA has been held to be equivalent of 'seaman' in the Jones Act, with the Robison test the guide to both determinations." ¹⁶ Similarly, in Balfer, we first applied the Robison test and determined that Balfer was not a seaman before concluding that he was a longshoreman.

In Buras v. Commercial Testing & Engineering Co., ¹⁷ we summed up the requirements for summary judgment denying seaman's status in phrases clearly based on Robison:

to survive a motion for summary judgment the claimant must demonstrate a factual dispute with regard to the permanency or the substantiality of his employment relationship with a vessel or group of vessels, and that his work contributed to the operation or function of the vessel or the accomplishment of its mission. ¹⁸

In a number of other cases, decided both before ¹⁹ and after ²⁰ the adoption of the 1972 amendments to the LHWCA, we have affirmed submission of the status issue to the fact-finder without making non-harbor-worker status a prerequisite. These decisions applied the doctrine followed by this court in McDermott, Inc. v. Boudreaux, ²¹ in which, a decade after adoption of the1972 amendment, we set aside a decision by the Benefits Review Board that a worker was covered under the LHWCA, finding instead that he was a member of the crew of a vessel, hence outside LHWCA coverage. We explained that the Robison test is the standard for reviewing LHWCA and Jones Act determinations:

Thus, despite our continued insistence that a Jones Act "seaman" and a "crew member" excluded from the Longshoremen's Act are one and the same ... we realize that, in a practical sense, a "zone of uncertainty" inevitably connects the two Acts. Confronted by conflicting evidence concerning a worker's duties or undisputed evidence concerning an occupation that exhibits the characteristics of both traditional land and sea duties, a fact-finder might be able to draw reasonable inferences to justify coverage under either statute. Were this possibility present here, we would remand this case for further factual...