Sepulvado v. Alpha Drilling, LLC
| Decision Date | 02 August 2010 |
| Docket Number | Civil Action No. 08-726 |
| Citation | 730 F.Supp.2d 591 |
| Parties | William J. SEPULVADO v. ALPHA DRILLING, LLC, et al. |
| Court | U.S. District Court — Western District of Louisiana |
Lawrence N. Curtis, Office of Lawrence N. Curtis, Lafayette, LA, for William J. Sepulvado.
John Links Duvieilh, Katherine L. Winters, Jones Walker et al., New Orleans, LA, for Alpha Drilling, LLC, et al.
MEMORANDUM RULING
Currently pending before this Court is a "Motion for Partial Summary Judgment" [Doc. 22] filed by defendants, Alpha Drilling, L.L.C., p/k/a Drilling Productivity Realized, L.L.C., Bravo Drilling, L.L.C., p/k/a P.C. Axxis, L.L.C. and Axxis Drilling, Inc. (collectively referred to as "Axxis").1 Intheir motion, defendants argue plaintiff was not a Jones Act seaman at the time of the second accident sued upon.2 Specifically, defendants move for a partial judgment, "holding that Plaintiff was not a Jones Act seaman at the time of his accident on October 20, 2007, thus Plaintiff's recovery for such accident, if any, is limited to compensation under the Louisiana Workmen's Compensation Act, La. R.S. 23:1021 et seq." [Doc. 22-1, p. 8] The motion is opposed by plaintiff [Doc. 24]. For the following reasons, the motion is DENIED.
Plaintiff began working for Axis in 2003 as a floorhand.3 [Doc. 22-1, p. 2] After sustaining several injuries and while recuperating from surgery, "Axxis sent Plaintiff to crane operating school because working as a crane operator would be less strenuous on Plaintiff's body than roughnecking." [ Id.] "Plaintiff returned to work with Axxis as a crane operator aboard the D/B JUSTICE on December 1, 2005." [ Id.] Plaintiff alleges on February 9, 2006, while working as a crane operator for Axxis aboard the D/B JUSTICE, a self-propelled drilling barge, "his right lower extremity was crushed between [a] crane and the crane's door," resulting in injuries "to his right lower extremity and lower back." [Docs. 1, ¶ 11; 22-2, ¶ I; 24-1, ¶ 1]
On July 11, 2006, Cindy Lynch, Axxis' Personnel Manager, called plaintiff and instructed him to report to Axxis' office on July 13, 2006 at 8:30 a.m. 4 [Doc. 24-2] At that time, Dr. Langford, plaintiff's treating physician, had placed plaintiff on a "no work status." [Docs. 24, p. 2; 24-2, p. 13] On July 17, 2006, Ms. Lynch wrote to Dr. Langford asking whether plaintiff had reached maximum medical improvement ("MMI") with respect to his right knee. Dr. Langford responded by stating plaintiff had not reached MMI, and provided the following explanation:
Plaintiff remained on "light duty" for approximately nine months. On March 28, 2007, plaintiff underwent a Functional Capacity Evaluation ("FCE") at Axxis' request. [Doc. 24, p. 4] The report from the evaluation (dated April 13, 2007) stated plaintiff was capable of performing "medium level" work, his previous job as a crane operator constitutes medium level work, and therefore plaintiff would be able to return to his former job as a crane operator. [Doc. 24-2, pp. 19-20] The report is silent as to whether or not plaintiff could perform any job other than "crane operator." [ Id.] Plaintiff was released to return to work at Axxis on April 19, 2007. [Doc. 22-1, pp. 2-3].
On some unspecified date after April 19, 2007, plaintiff was assigned to work as a galley hand on the land rig GEORGIA. [Doc. 22-1, p. 3]. Plaintiff testified at his deposition that Axxis continued to pay him the wages of a crane operator while he worked as a galley hand. [Doc. 24-2, p. 7] Plaintiff additionally testified Axxis only assigned him to land-based work temporarily, until a position for a crane operator became available. [Docs. 24, pp. 5-6; 24-2, pp. 3-7]. Defendants dispute the truth of the foregoing statement and have submitted the affidavit of Robert Dunn, President of Axxis, in which he asserts: "At no time did I inform Plaintiff that his position on the GEORGIA was temporary until a crane operator's position became available on a drilling barge." 5 [Doc. 22-5, p. 8, ¶ 6] On either October 19 or 20, 2007, while working as a galley hand on the GEORGIA, plaintiff alleges he injured his cervical spine while unloading a 148 quart cooler packed with ice and meat from the back of a flatbed truck. 6 [Docs. 24-1, p. 5; 22-1, p. 3; 22-3, p. 19] Plaintiff subsequently filed suit in this Court, seeking damages for both the February 2006 and the October 2007 accidents. Thereafter, defendant filed the motion for partial summary judgment now pending before this Court.
A party claiming relief, or a party against whom relief is sought, may move, with or without supporting affidavits, for summary judgment on all or part of the claim. Fed. R. Civ. Proc. 56(a) and (b). Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c)(1)(2).
When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.
Fed. R. Civ. Proc. 56(e). As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994):
When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bearsthe burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial. Id. at 322, 106 S.Ct. 2548; see also, Moody v. Jefferson Parish School Board, 2 F.3d 604, 606 (5th Cir.1993); Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir.1991). Only when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party" is a full trial on the merits warranted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The Supreme Court has instructed:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Where no such showing is made, "[t]he moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."
Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The Court later states:
In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment shall be entered against the nonmoving party unless affidavits or other evidence set forth specific facts showing that there is a genuine issue for trial. The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues.
Id. at 888-89, 110 S.Ct. 3177(internal quotations and citations omitted). The Fifth Circuit has further elaborated:
[The parties'] burden is not satisfied with 'some metaphysical doubt as to the material facts,' by 'conclusory allegations,' by 'unsubstantiated assertions,' or by only a 'scintilla' of evidence. We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when...
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...removed from service; [Badon] was never to return to the status of crewmember on that vessel." Id.; cf. Sepulvado v. Alpha Drilling, LLC, 730 F. Supp. 2d 591, 602 (W.D. La. 2010) (distinguishing Smith because "in the present case, there [was] no indication that the D/B JUSTICE (or Axxis' fl......