Webb v. Kanawha River Terminals, LLC
| Decision Date | 21 March 2022 |
| Docket Number | CIVIL ACTION NO. 3:19-0883 |
| Citation | 592 F.Supp.3d 508 |
| Parties | Dana A. WEBB, Sr. and Maida D. Webb, his wife, Plaintiffs, v. KANAWHA RIVER TERMINALS, LLC, a limited liability company, in its own right and as owner or owner pro hac vice of the M/V Dorothy L and M/V A.S. Maynard and a fleet of barges and 3 work barges, Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
Joseph P. Moschetta, Stephen P. Moschetta, The Moschetta Law Firm, Washington, PA, for Plaintiffs.
Courtney Hooper, Robert Neil Dengler, Pro Hac Vice, Flicker Garelick & Associates, New York, NY, for Defendant Kanawha River Terminals, LLC.
Pending before the Court is Defendant Kanawha River Terminals, LLC's ("KRT") Motion for Summary Judgment (ECF No. 33). For the reasons herein, the Motion is GRANTED .
This action arises from Plaintiff Dana A. Webb, Sr.’s accident on December 29, 2016. Plaintiff worked as an off-loader operator for Defendant. See Employer's Report of Injury, ECF No. 33-1. At his job, he fell while traversing a steel walkway that was part of an off-loader barge at Defendant's terminal facility in Ceredo, West Virginia. See id. After the injury, pursuant to the Longshore and Harbor Workers’ Compensation Act ("LHWCA"), Defendant paid workers’ compensation benefits through its insurer. See Notice of Payments, ECF No. 33-2. Plaintiff continues to pursue an administrative claim for benefits under the LHWCA.
Certain facts regarding the off-loader barge are undisputed. It was originally constructed in 1971 as a crane barge and modified in 1996. Tiller Aff. ¶ 11, ECF No. 33-3. KRT purchased the barge in 2005 to serve as an off-loading dock in a larger off-loading site, to save money on trucking costs. Id. ¶¶ 8, 11. The barge was extensively modified for this purpose, with Plaintiff assisting in the modification of the barge. Id. ¶¶ 11, 13; Pl.’s Aff. ¶ 3, ECF No. 38-1. For example, a hydraulic excavator was anchored to it, a landside hopper and belt structure were secured to it, and a 4,000-gallon diesel fuel tank was mounted and secured to it to fuel the excavator. Tiller Aff. ¶¶ 11, 13; Pl.’s Depo. 48-50, ECF No. 33-4. The barge also had a walkway from landside, a break room building, a greasing station, and fixed lights fed by electrical cables connected landside. Tiller Aff. ¶ 13; See Pl.’s Depo. 48-54, 59-64. Further, it is undisputed that, if the off-loader barge was detached from its moorings, it could not independently function. See Pl.’s Depo. 58. If disconnected, the off-loader barge was not self-propelled or otherwise capable of moving without the assistance of another marine vessel, such as a tugboat. Tiller Aff. ¶ 17; Good Aff. ¶¶ 11, 12, ECF No. 38-2.
Parties agree that the barge was secured by specialized moorings which allowed it to rise and lower with the tide. See Pl.’s Depo. 53-55; Tiller Aff. ¶ 9. What is disputed, however, is the exact way the off-loader barge was connected to the shore and the ease with which the off-loader barge could be detached from its moorings. Plaintiff asserts that the connections were mostly impermanent and easily removed, meaning the barge could be readied to navigate water with relative ease. See Pl.’s Aff. ¶¶ 10-11. On the other hand, Defendant argues that the moorings were more permanently affixed and could only be detached by an arduous and expensive process. See Tiller Aff. ¶¶ 9, 10, 14, 15. Further, there is a dispute over whether the off-loader barge was ever moved for maintenance. See Pl.’s Depo. 150-151; Tiller Aff. ¶ 16. But no other movement was alleged.
After the accident, Mr. Webb and his wife, Plaintiff Maida D. Webb, filed this action on December 10, 2019. See Compl., ECF No. 1. There are three tort claims remaining against Defendant: (1) negligence pursuant to 33 U.S.C. § 905(b) ; (2) maritime tort, and (3) loss of consortium. Defendant moved for summary judgment on all claims. The Motion is fully briefed and ripe for resolution.
To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the court will not "weigh the evidence and determine the truth of the matter[.]" Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some "concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]" Anderson , 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence" in support of his or her position. Anderson , 477 U.S. at 252, 106 S.Ct. 2505.
The LHWCA is a workers’ compensation statute covering maritime workers who meet a two-prong situs and status requirement. See P.C. Pfeiffer Co., Inc. v. Ford , 444 U.S. 69, 73-74, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979). The first prong requires that the injury occur on a maritime situs, defined as "the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.)" See In re CSX Transp., Inc. , 151 F.3d 164, 168 (4th Cir. 1998) (quoting 33 U.S.C. § 903(a) ). The second prong is a "status requirement" that ensures the employee is a maritime worker. "[T]o satisfy the status test, the employee must be engaged in ‘maritime employment,’ defined to include ‘any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker.’ " Id. at 168-69 (quoting 33 U.S.C. § 902(3) ). Parties do not dispute that Plaintiff meets both requirements of the LHWCA. See Def.’s Mem. at 12, ECF No. 34. Indeed, Plaintiff pursued and was paid workers’ compensation benefits.
Like many other workers’ compensation statutes, the LHWCA bars injured employees from suing their employers in tort. See 33 U.S.C. § 905(a). An exception to an employer's immunity under the LHWCA exists when the employer is also a vessel owner (a "dual-capacity employer") and is being sued only in its owner capacity under § 905(b). See id. § 905(b). In this context, Plaintiff can only recover on his negligence theory if the off-loader barge in the accident is a vessel and if his injuries were caused by Defendant in its capacity as vessel owner. See id. ; Jones & Laughlin Steel Corp. v. Pfeifer , 462 U.S. 523, 531-32, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). Parties primarily dispute whether the barge is a vessel and thus whether Plaintiff can maintain his suit under this exception to the LHWCA.
Vessel is undefined in the LHWCA. However, Congress provided a definition of vessel in §§ 1 and 3 of the Revised Statutes of 1873: "[t]he word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C. § 3 This definition is applicable to the LHWCA. See Stewart v. Dutra Const. Co. , 543 U.S. 481, 489, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005).
The Supreme Court has twice examined this definition of vessel. See e.g., Stewart , 543 U.S. 481, 125 S.Ct. 1118 (2005) ; Lozman v. City of Riviera Beach, Fla. , 568 U.S. 115, 133 S.Ct. 735, 184 L.Ed.2d 604 (2013). In Stewart , the Supreme Court considered whether a dredge was a vessel. See 543 U.S. 481, 125 S.Ct. 1118. The dredge was a massive floating platform with a bucket which removed silt from the ocean floor and dumped it into scows floating alongside. Id. at 484, 125 S.Ct. 1118. It had "certain characteristics common to seagoing vessels," such as a captain and crew, navigational lights, a ballast tank, and crew dining area. Id. However, it also had a limited means of self-propulsion, was moved long distances by tugboat, and moved by manipulating anchors and cables, usually only over short distances. Id. In concluding that a dredge was a "vessel," the Court looked to the contemporary understanding of vessel at the time the definition was promulgated. Id. at 490, 125 S.Ct. 1118. It noted that a watercraft need not be used primarily as a means of transportation on water to qualify as a vessel, only that it be "used or capable of being used" as one. Id. at 495-497, 125 S.Ct. 1118 (quoting 1 U.S.C. § 3). Specifically, the Court noted that "[t]he question remains in all cases whether the watercraft's use as a means of transportation on water is a practical possibility or merely a theoretical one." Id. at 496, 125 S.Ct. 1118 (internal quotation marks omitted).
After several circuit courts began using the definition of "vessel" under Stewart quite broadly, the Supreme Court revisited the issue in Lozman , emphasizing that the focus should be on whether a watercraft's use as a means of transportation on water is practical, not merely theoretical. 568 U.S. at 120-27, 133 S.Ct. 735. The Eleventh Circuit had previously found that a floating home was a vessel because it was "capable" of movement...
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