Smith v. Weeks Marine, Inc.

• Decision Date: 03 February 2010
• Docket Number: No. 09-980.,09-980.
• Citation: 29 So.3d 1269
• Parties: Clarence SMITH v. WEEKS MARINE, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

29 So.3d 1269

Clarence SMITH v. WEEKS MARINE, INC., et al.

No. 09-980.

Court of Appeal of Louisiana, Third Circuit.

February 3, 2010.

Mark Gerard Artall, Lafayette, LA, for Plaintiff/Appellee-Clarence Smith.

Kevin Reeve Duck, Duck Law Firm, Lafayette, LA, for Plaintiff/Appellee-Clarence Smith.

Matthew Francis Popp, Waits, Emmett & Popp, L.L.C., New Orleans, LA, for Defendant/Appellant-Weeks Marine, Inc. Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.

THIBODEAUX, Chief Judge.

The plaintiff-appellee, Clarence Smith (Mr. Smith), sustained multiple injuries while quartered on the barge of the defendant-appellant, Weeks Marine, Inc. (Weeks). In June of 2005, Mr. Smith was awakened after midnight by two other crew members who dragged him from his bunk and severely beat him. Mr. Smith filed a petition naming as defendants the two attackers and Weeks, the barge owner/employer. He subsequently amended his petition to add the employer/payroll company, apparently a subsidiary of Weeks, Atlantic Sounding Company, Inc. (Atlantic). Mr. Smith alleged Jones Act negligence and unseaworthiness of the vessel. He also claimed entitlement to maintenance and cure benefits as well as to damages and attorney fees.

Mr. Smith, Weeks, and Atlantic filed cross motions for summary judgment. The trial court granted Mr. Smith a partial summary judgment on the issue of Weeks' failure to provide a seaworthy vessel. The trial court denied the motions for summary judgment of Weeks and Atlantic which were based upon Jones Act negligence and seaworthiness. Weeks filed this appeal. We affirm the judgment of the trial court.

I. ISSUES

We must decide whether the trial court erred in finding the quarters barge unseaworthy based upon the attack of Mr. Smith and the criminal backgrounds of the crew members.

II. FACTS AND PROCEDURAL HISTORY

On the morning of June 26, 2005, between 3:00 and 4:00 a.m., while Mr. Smith was asleep in his bunk on the quarters barge of Weeks, he was dragged from his bunk and attacked. One of his attackers was his roommate, crew member Tracey Collins, who was approximately six feet, six inches tall and weighed 236 pounds. Another crew member, Ashton Edwards, approximately six feet, one inch and 250 pounds, was in the room verbally and physically attacking Mr. Smith. Mr. Smith, approximately six feet tall and weighing 155 pounds, was thrown to the floor, punched, kicked, and rammed head-first into the iron bed rails and metal lockers.

Mr. Smith sustained a closed head injury, a concussion, lacerations to his forehead, a retinal tear and subconjunctivial hemorrhage of the left eye, abrasions of the lower lip, a fractured incisor, the loss of four teeth, temporomandibular jaw injury (TMJ), contusions to the left side of his chest and back, trauma to his right knee and shoulder, injuries to the lower back, post traumatic stress disorder, and depression. He could not return to work for approximately two months. Mr. Smith's medical treatment included a six-unit dental bridge and root canal, splint therapy for the TMJ, eye laser treatment for the repair of the detached retina, a lumbar diskectomy and fusion at L4-5 and L5-S1, and clinical therapy for the post traumatic stress disorder and depression.

The trial court granted Mr. Smith's motion for summary judgment on the unseaworthiness of the vessel and denied the defendants' motion for summary judgment on the issue of Jones Act negligence. Weeks filed a motion for reconsideration which was heard and denied in June of 2009. The trial court's June 2009 judgment denying the motion for reconsideration also designated the November 2008 judgment in favor of Mr. Smith a partial final judgment. Weeks appealed the June 2009 judgment.

III.

LAW AND DISCUSSION

Standard of Review

A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law." Sher v. Lafayette Ins. Co., 07-2441 p. 5 (La.4/8/08), 988 So.2d 186, 192. Using the same criteria, courts review a grant or a denial of a motion for summary judgment de novo. Id.

Jurisdictional Issue

We will first address the jurisdictional issue of whether the 2008 judgment was a final, appealable judgment under La.Code Civ.P. art. 1915.¹

Mr. Smith's petition asserts a Jones Act negligence claim and a claim for unseaworthiness of the vessel. It further charges Weeks and Atlantic with failure to pay maintenance and cure benefits and asserts an entitlement to damages and attorney fees. Mr. Smith subsequently filed a "Motion and Order for Partial Summary Judgment on the Issue of Liability." However, the only liability issue addressed in the motion was for unseaworthiness of the vessel. At trial, counsel for Mr. Smith stated that if unseaworthiness were found, the court would not have to address the Jones Act negligence claims. However, Weeks argued that the court would have to deal with both. Weeks was correct. Mr. Smith actually asserted three separate theories of liability. Judge Belsome's concurrence in Parfait v. Transocean Offshore, Inc., 04-1271, pp. 1-2 (La.App. 4 Cir. 8/10/07), 992 So.2d 465, 488-89, explained:

I ... concur with the majority's finding that the jury's determination that the Rather was seaworthy had no effect with regard to the jury's finding of negligence on the part of Transocean ... as Jones Act negligence and unseaworthiness are separate and distinct causes of action with differing standards of proof, a principal sic that has been recognized by both the United States and Louisiana Supreme Courts, as well as this Court. See, e.g., Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971); Griffin v. LeCompte, 471 So.2d 1382, 1387 (La.1985); Wright v. Ocean Drilling and Exploration Co., 461 So.2d 1084, 1089 (La.App. 4 Cir.1984) ("Theories of unseaworthiness and negligence are two separate and distinct basis sic of liability....' In view of the decisions in this court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence.'") (quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 551, 80 S.Ct. 926, 932-933, 4 L.Ed.2d 941 (1960)) (emphasis in original).

The concurrence footnoted other cases upholding this principle:

Olsen v. American S.S. Co., 176 F.3d 891, 894, 2000 A.M.C. 90 (6th Cir.1999) (stating that a seaman has three causes of action available to him: first, an action for maintenance and cure; second, an action for unseaworthiness; and third, a negligence action under the Jones Act); Springborn v. American Commercial Barge Lines, Inc., 767 F.2d 89, 100 (5th Cir.1985) (finding that "while the facts that give rise to unseaworthiness claims sometimes support Jones Act negligence claims, each is a distinct claim"); Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir.1982) ("Jones Act negligence and unseaworthiness are two separate and distinct claims.... This court recognizes these two different standards of causation.").

Parfait, 992 So.2d at 494 n. 1.

Accordingly, the motion that was granted by the trial court, and the trial court's judgment in favor of Mr. Smith on the issue of unseaworthiness alone, resulted in the adjudication of one claim or theory of liability only. The judgment did not dismiss any party to the suit under La.Code Civ.P. art. 1915(A)(1), nor did it qualify as a final and immediately appealable judgment under La.Code Civ.P. art. 1915(A)(3) because it falls under that subpart's exception for summary judgments granted pursuant to La.Code Civ.P. art. 966(E) (disposing of one claim but not of the entire case). Further, the judgment does not qualify as an immediately appealable final judgment under art. 1915(A)(5) because, while the motion's title indicates that it seeks to dispose of the issue of liability, indicating that damages will be tried separately, it actually seeks to dispose of only one of three issues of liability asserted in Mr. Smith's petition.

Therefore, the partial summary judgment granted in favor of Mr. Smith, which adjudicates fewer than all claims or the rights and liabilities of fewer than all parties is not an immediately appealable final judgment under La.Code Civ.P. art. 1915(A), but may be immediately appealable under 1915(B), if it is certified or designated as a final judgment by the trial court after an express determination that there is no just reason for delay. La.Code Civ.P. art. 1915(B)(1) & (2). In the present case, the trial court did not initially certify the November 2008 judgment in favor of Mr. Smith and against Weeks on the issue of unseaworthiness as final. Therefore, the judgment was interlocutory and could be "revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties." La.Code Civ.P. art. 1915(B)(2).

However, following the hearing on the defendants' motion for reconsideration of the 2008 judgment, the trial court entered a judgment on June 15, 2009, denying reconsideration and certifying the prior judgment as final. It is this June 2009 judgment that is before us on appeal. Specifically, the trial court stated in the 2009 judgment, as follows: "The judgment signed and filed on November 5, 2008, granting Summary Judgment in favor of Plaintiff on the Unseaworthiness Cause of Action is hereby made a final judgment." Two weeks later, on July 2, 2009, the trial court issued written reasons for its judgment denying reconsideration and for its certification of the earlier judgment as a final judgment, based upon its opinion that "there was no just reason for delay." The question for us on the jurisdictional issue then...