Welch v. Prop Transp. & Trading, LLC
| Decision Date | 01 November 2016 |
| Docket Number | CIVIL ACTION NO.: 4:15-cv-187-JMV |
| Parties | DEWEY WELCH PLAINTIFF v. PROP TRANSPORT & TRADING, LLC, GREENVILLE PORT COMMISSION, and TERRAL RIVERSERVICE, INC. DEFENDANTS |
| Court | U.S. District Court — Northern District of Mississippi |
This matter is before the court on the Defendant Prop Transport & Trading, LLC's Motion to Dismiss for Failure to State a Claim [42]. The court has considered the motion and accompanying brief, along with the responses and reply. For the reasons detailed herein, the motion shall be denied.
Plaintiff Dewey Welch ("Welch") filed a complaint under the Jones Act, alleging that he was severely injured while working in his capacity as a barge-loading supervisor for his employer, Defendant Prop Transport & Trading, LLC ("Prop Transport"). As an employee of Prop Transport, Welch alleges that he was charged with the following responsibilities: "boarding the barge prior to it being loaded; inspecting the barge; supervising the loading of the barge; and ensuring that the barge is being loaded in a manner so that it could be safely transported from Greenville, Mississippi to Galveston, Texas." Am. Compl. [2] at ¶ 8. The mission of the barges was allegedly to transport "fracking sand." Id. at 4 n.1. On a typical day, Welch alleges that he would access the barge via a fixed metal ladder. Id. at ¶19. But when the water levels would get too low, Welch alleges that it was Prop Transport's practice to use a crane-operated "man bucket" to transfer him from the dock to the barge. Id. at ¶ 20. It was such practice that allegedly led to Welch's injuries. Id. at ¶ 25.
Specifically, Welch alleges that on or around September 24, 2014, he sustained severe personal injuries following an attempt to transfer him via a "man bucket" from the dock onto the barge that he had been assigned. Id. According to the allegations in the Amended Complaint [2], Welch was dropped in a crane-operated "man bucket" onto the steel deck of a barge, then into the water below, then jerked back up out of the water and slammed repeatedly into the hull of the barge while still in the "man bucket." Id. at ¶¶ 28-29. Welch alleges that the operator of the crane was an employee of the Greenville Port Commission ("the Port"). Id. at ¶ 35. Welch alleges that the Defendants, Prop Transport and the Port, are liable under the Jones Act, 46 U.S.C. §§ 30104-30105, and alternatively, under the Longshore Harbor Workers Compensation Act, 33 U.S.C. §§ 901-950 ("LHWCA").
Defendant Prop Transport filed a Motion to Dismiss [42] on August 31, 2016. In its Motion to Dismiss [42], Prop Transport argues that the court can determine, as a matter of law, based upon the allegations in Welch's complaint, that Welch is a "maritime employee," and covered under the LHWCA, as opposed to a "seaman," and covered under the Jones Act. Motion to Dismiss [42] at 1. Prop Transport further argues that the benefits provided by the LHWCA are the exclusive remedy for Welch. Id. Accordingly, Prop Transport requests that this court enter an order dismissing all of Welch's claims against it for failure to state a claim upon which relief may be granted. Memorandum in Support of Motion to Dismiss [43] at 11.
A pleading must contain a short and plain statement of the claim, showing the pleader is entitled to relief. FED. R. CIV. P. 8(a)(2). Motions to dismiss test the sufficiency of a plaintiff'scomplaint. See Guthrie v. Tifco Inds., 941 F.2d 374, 379 (5th Cir. 1991). On a Rule 12(b)(6) motion, the court's inquiry is essentially limited to the content of the complaint. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994), cert. denied, 513 U.S. 868.
To survive a motion to dismiss, plaintiffs are required to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Put differently, "[f]actual allegations must be sufficient to raise a non-speculative right to relief." Colony Ins. Co. v. Peachtree Constr. Ltd., 647 F.3d 248, 252 (5th Cir. 2011). "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).
The threshold issue before the court is the status of the person seeking relief. 7 West's Fed. Forms, Admiralty § 10911 (4th ed.). The Jones Act does not define "seaman"; this "difficult—perhaps insurmountable—task" has been left to the courts. See In re Endeavor Marine, Inc., 234 F.3d 287, 290 (5th Cir. 2000); Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 932 (5th Cir. 2014); St. Romain v. Industrial Fabrication and Repair Service, Inc., 203 F.3d 376, 378 (5th Cir. 2000). This court is tasked with the duty of determining if the facts, as alleged, create a genuine issue of material fact as to whether Mr. Welch qualifies as a "seaman" under the Jones Act.
Welch claims that he is a Jones Act seaman, while Defendants argue that he is actually a longshoreman. It is well-settled that the Jones Act and the LHWCA are "mutually exclusive compensation regimes." Valentine v. L & L Sandblasting, Inc. Corp., 2016 WL 3648290, at *2 (W.D. La. July 1, 2016); Becker v. Tidewater, 335 F.3d 376, 386 (5th Cir. 2009); Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 553 (1997); see also Chandris, Inc. v. Latsis, 515 U.S. 347, 359 (1995) (citing McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 347 (1991)) ( ).
To maintain a cause of action under the Jones Act, the plaintiff must be a seaman. Land-based workers are not seamen. Valentine, 2016 WL 3648290, at *2 (W.D. La. July 1, 2016); Alexander v. Express Energy Services Operation, L.P., 784 F.3d 1032, 1033 (5th Cir. 2015) (citing Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340, 346 (5th Cir. 1999)). "The key to seaman status is employment-related connection to a vessel in navigation." Id. (citing Wilander, 498 U.S. at 355). Although "[i]t is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, . . . a seaman must be doing the ship's work." Id. (citing Wilander, 498 U.S. at 354).
Wilander requires that an employee's duties must "contribut[e] to the function of the vessel or to the accomplishment of its mission," and this "captures well an important requirement of seaman status." 498 U.S. at 355. "An injured person claiming the benefits of the Jones Act . . . has the burden of establishing seaman status." Becker, 335 F.3d at 389 n.8 (citing Barrett v. Chevron, U.S.A., Inc., 752 F.2d 129, 132 (5th Cir. 1985)). The "seaman" need not be physically aboard his vessel when injured as a condition precedent to Jones Act coverage, provided that atthe time of his injury he was in the liberally defined "service of the ship"/"course of his employment." 7 West's Fed. Forms, Admiralty § 10911 (4th ed.).
The courts employ the following test in order to determine if an individual worker is a seaman, and is therefore entitled to the protections of the Jones Act:
A plaintiff must demonstrate that: (1) his duties contribute to the function of the vessel or to the accomplishment of its mission, and (2) the worker must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature (the "substantial-connection" prong).
Valentine, 2016 WL 3648290, at *2; Alexander, 784 F.3d at 1034 (citing Chandris, 515 U.S. at 368). "The seaman inquiry is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury." Harbor Tug, 520 U.S. at 554. The Court discussed this balance in Chandris as follows: "[i]f reasonable persons, applying the proper legal standard, could differ as to whether the employee was a 'member of a crew,' it is a question for the jury." Chandris, 515 U.S. at 369.
The ultimate question is whether Welch alleges sufficient facts in his amended complaint in order to create a genuine issue of material fact as to whether he qualifies as a seaman, and whether Welch qualifies as a seaman hinges upon whether he fits the exclusion of the LHWCA as "a master or member of a crew of any vessel." Defendant Prop Transport's first argument is that the exclusive remedy for barge-loading supervisors is under the LHWCA, not the Jones Act. Motion to Dismiss [43] at 9.
In support of such conclusion, Prop Transport cites Gilliam v. Wiley N. Jackson Co., 659 F.2d 54 (5th Cir. 1981). Defendant was correct in noting that the plaintiff in Gilliam, a barge-loading supervisor, was found to have met the status requirement under the LHWCA and wastherefore entitled to compensation. Gilliam, 659 F.2d at 58. However, as Welch noted in his response to the motion to dismiss [57], Gilliam did not allege Jones Act status, Gilliam merely sought review of an administrative decision denying him benefits under the LHWCA. Id. at 54.
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