Seymour v. Cigna Ins. Co.

• Decision Date: 27 July 1993
• Docket Number: No. 93-CA-229,93-CA-229
• Citation: 622 So.2d 839
• Parties: Stanley SEYMOUR v. CIGNA INSURANCE COMPANY, ABC Insurance Company, Weber Management Services, Inc. and Weber Marine, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 839

622 So.2d 839

Stanley SEYMOUR v. CIGNA INSURANCE COMPANY, ABC Insurance Company, Weber Management Services, Inc. and Weber Marine, Inc.

No. 93-CA-229.

Court of Appeal of Louisiana Fifth Circuit.

July 27, 1993.

Frank M. Buck, Jr., Robert L. Manard, New Orleans, for plaintiff/appellee.

Lawrence E. Abbott, T. Patrick Baynham, New Orleans, for defendants/appellants.

Before BOWES, DUFRESNE and WICKER, JJ.

WICKER, Judge.

Weber Marine, Inc.; Weber Management Services, Inc.; and West of England Shipowners Mutual Insurance Association (London) Ltd. appeal a jury verdict in favor of plaintiff, Stanley Seymour, who has answered the appeal. The issues are whether or not there was evidence from which the jury could have concluded that Seymour was a seaman for Jones Act purposes and whether he has been awarded sufficient damages. We affirm.

Seymour was an employee of Weber Marine, a company engaged in inland marine services. Weber Management was a payroll entity. Seymour's first day on the job resulted in an injury to his ankle when a forklift truck went out of control. Weber's compensation insurer, CIGNA Insurance Company of North America, paid benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901 et seq. Seymour then sued CIGNA/INA; Weber; and its liability insurer, West of England, for damages under the Jones Act, 46 U.S.C.App. Sec. 688, and the general maritime law. CIGNA/INA intervened to recover the medical and compensation benefits it had paid Seymour.

Weber and West of England moved for summary judgment on Seymour's claims of unseaworthiness and seaman status. Summary judgment was granted on the unseaworthiness issue, and the seaman status issue was reserved for a jury trial. After four days of testimony, the jury awarded Seymour a total of $240,000.00. That judgment also dismissed CIGNA/INA on a directed verdict; awarded it $23,898.73, the stipulated past medical expenses, on its intervention; and fixed as additional costs certain expert witness fees, videotape deposition costs, and jury lunches.

Weber and West of England now allege

The jury erred in finding plaintiff, Stanley Seymour, to be a seaman when the only reasonable evidence adduced at trial established: he was assigned to work exclusively as a day laborer unloading a supply truck located in a parking lot; he was not permanently assigned to any vessel in Weber's fleet; he was merely transported on one of Weber's vessels to the job site; he performed no substantial work on that vessel; and he was solely engaged in land-based unloading activities at the time of his accident.

They do not raise amount of the damage award as an error. Seymour has answered the appeal, asking for an award of punitive damages, attorney's fees, increased compensatory damages, and sanctions for frivolous appeal. Weber and West of England represent to this court that Seymour's answer was untimely; however, our review of the record shows otherwise.

SEAMAN STATUS

46 U.S.C.App. Sec. 688 (Jones Act) provides a remedy for a "seaman" who is injured in the course of his employment. The definition of "seaman", at issue in this case, is not found in the statute but must be gleaned from the jurisprudence. This jurisprudence, covering almost a century of cases, has been often confusing and inconsistent, as has been noted in McDermott Intern., Inc. v. Wilander, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991). However, the Supreme Court concluded,

The key to seaman status is employment-related connection to a vessel in navigation. We are not called upon here to define this connection in all details, but we hold that a necessary element of the connection is that a seaman perform the work of a vessel.... In this regard, we believe the requirement that an employee's duties must "contribut[e] to the function of the vessel or to the accomplishment of its mission" captures well an important requirement of seaman status. It is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship's work.

111 S.Ct. at 817.

The federal Fifth Circuit, while citing Wilander, still has held that the injured worker must meet the two-prong test of Offshore Co. v. Robinson, 266 F.2d 769 (C.A. 5th Cir.1959): he or she must be permanently assigned to a vessel or perform a substantial part of his or her work aboard a vessel, and his or her duties must contribute to the function of the vessel or the accomplishment of its mission. Easley v. Southern Shipbuilding Corp., 965 F.2d 1 (C.A.1992); Michel v. Total Transp., Inc., 957 F.2d 186 (C.A.1992).

The requirement of permanent attachment to a vessel may have been called into question, however. In Bach v. Trident Steamship Co., Inc., 920 F.2d 322 (C.A. 5th Cir.1991), a compulsory river pilot, who had no permanent attachment to the vessel he was preparing to pilot, collapsed of a heart attack shortly after reaching the bridge. He sued under the Jones Act, and the trial court dismissed his claims. The Fifth Circuit affirmed, finding that "[h]is transitory work aboard the [ship], which lacked any degree of regularity and continuity, does not constitute either permanent attachment to or substantial work aboard that vessel." At 324. It refused to make an exception to the Robinson test because to do so "would make our seaman test unnecessarily uncertain and ambiguous." At 326. The Supreme Court, however, granted writs of certiorari, vacated the decision, and remanded Bach for reconsideration in light of Wilander. On remand, the Bach court reinstated its prior opinion, stating, "Wilander has no effect" on its opinion. 947 F.2d 1290 (C.A.1991), cert. denied --- U.S. ----, 112 S.Ct. 1996, 118 L.Ed.2d 592 (1992).

Louisiana state courts have previously relied upon the Robinson test, as in Sider v. Robin Temporary Service, 515 So.2d 1123 (La.App. 5th Cir.1987), writ denied, 519 So.2d 146 (La.1988), and Martin v. G. & A LTD., 604 So.2d 1014 (La.App. 3rd Cir.1992). The Fourth Circuit, in Folse v. Western Atlas Intern., Inc., 580 So.2d 482 (La.App.1991), also held that the injured worker must meet both prongs of the Robinson test and affirmed a summary judgment dismissing the claim of a seismic operator who did no more than half his work aboard ships which were not in fact owned by his employer. Our Supreme Court reversed and remanded the case for trial, noting that Wilander "emphasized employment-connection to a vessel in navigation as the sole test of coverage" under the Jones Act. 593 So.2d 341, 342. It also noted that Wilander "does not mention more or less permanent attachment to a vessel or fleet of vessels", the first prong of Robinson.

Seymour, who was twenty-eight years old when he was injured on December 17, 1988, dropped out of school in about the sixth grade and had minimal academic skills. He worked at minimum wage jobs like gas station attendant until at age eighteen he was old enough to go to work on the river. He worked for various marine companies, including Weber, as a deckhand over the next few years. He eventually got his inland marine pilot's license in 1986, and he did work as a pilot prior to his last employment with Weber.

Seymour applied to pilot a tugboat with Weber on December 9, 1988; and he was hired. However, no work was immediately available. He did report to work on December 17th; and Weber listed him on its records and paid him as a day laborer.

Here the tale diverges. Seymour testified that he was called on the evening of December 16th to report to work the next day to pilot the Ernest D. He drove from his home in Metairie to Weber's Burnside facility, but he was told the Ernest D. was out of commission that day. He asked if there was something else he could do, since he had driven all the way from Metairie for nothing. Weber, according to Seymour, put him to work on the Mar G, another tugboat.

That tug made a run from Weber's Burnside facility to Weber's Reserve facility, where it was supposed to pick up a pallet of paint for transport to a ship. Earl Spurlock, the pilot, and the regular deckhand were aboard the Mar G. Seymour worked as a deckhand on that run, checking the oil, pumping the bilge, and handling the ropes with the other deckhand. The trip took two or three hours, and there wasn't much to do aboard the tugboat.

When they got to Reserve, everyone but the pilot went to see if the paint was ready. Spurlock was unable to start the forklift and had to charge the battery. When Seymour called on Spurlock for help removing the plastic wrap from the paint, Spurlock left the forklift running. Seymour noticed the forklift creeping up and he yelled. He was unable to get himself out of the way in time and his ankle was jammed between the paint and the basket.

Weber, on the other hand, disputed Seymour's claim to be a seaman by pointing out the following testimony.

Dennis Leroy Adair, pilot of the Mar G, testified by videotaped deposition that he no longer worked for Weber and had no interest in the outcome of the trial. The Mar G has only one pilot and one deckhand. While it would be possible to have two deckhands, he testified, "I hadn't seen it done." During the two weeks he piloted the Mar G he never had any deckhand but Freddie Franklin. Seymour was riding only as a passenger from the main office in Burnside to Reserve and did not work as a deckhand or perform any work aboard the Mar G or contribute in any way to the mission or function of the Mar G on December 17th.

On cross examination Adair conceded that he was not privy to any conversations between Seymour and whoever assigned him his duties and, consequently, didn't know what Seymour was told to do that day. He did know that he was supposed to pick up a load of groceries and take it to an anchored ship. When the accident happened, he was in the wheelhouse and Franklin, Spurlock, and Seymour were unloading the truck. It was unusual for Franklin to have...