Wilcox v. Welders

• Decision Date: 31 October 2013
• Docket Number: Civil Action No. 12–2389.
• Citation: 969 F.Supp.2d 668
• Parties: Joseph R. WILCOX et al. v. MAX WELDERS, L.L.C. et al.
• Court: U.S. District Court — Eastern District of Louisiana

969 F.Supp.2d 668

Joseph R. WILCOX et al.

v.MAX WELDERS, L.L.C. et al.

Civil Action No. 12–2389.

United States District Court, E.D. Louisiana.

Aug. 28, 2013.

Order Denying Motion to Amend Oct. 31, 2013.

Kenneth H. Hooks, III, Henry Price Mounger, III, Dodson, Hooks & Fredericks, APLC, Baton Rouge, LA, for Joseph R. Wilcox et al.

Evans Martin McLeod, Phelps Dunbar, LLP, David Inge Clay, II, Anne Derbes Wittmann, Christopher Matthew Hannan, Baker Donelson Bearman Caldwell & Berkowitz, New Orleans, LA, for Max Welders, L.L.C. et al.

ORDER AND REASONS

LANCE M. AFRICK, District Judge.

Before the Court are three motions for summary judgment. Defendant, Max Welders, LLC (“Max Welders”), filed a motion for summary judgment as to the claims asserted by plaintiffs, Joseph R. Wilcox and Lisa Wilcox, under the Jones Act and general maritime law.¹ Max Welders filed a separate motion for summary judgment to dismiss the indemnity cross-claims filed by defendants/cross-claimants, Superior Energy Services, Inc. (“Superior”) and Wild Well Control, Inc. (“Wild Well”).² Superior and Wild Well have filed a cross-motion for summary judgment on the indemnity issue.³

Background

Plaintiff, Joseph R. Wilcox (“Wilcox”), alleges that on June 5, 2012, he suffered serious injuries while performing welding services on a fixed platform located at South Timbalier Block 63 on the Outer Continental Shelf in the Gulf of Mexico.⁴ The welding work was performed pursuant to a decommissioning contract between the owner of the platform, Energy Resource Technology GOM, Inc. (“ERT”), and Wild Well, which is a subsidiary of Superior. ⁵ The contract called upon Wild Well to remove extremely large caissons, jacket structures, and pipes from the gulf floor at 16 different designated locations.⁶ Wild Well contracted with Max Welders, Wilcox's employer, to provide welders to assist with the demolition work.⁷ The work assignment required that Wilcox live aboard Wild Well's barge, the D/B SUPERIOR PERFORMANCE.⁸ Wilcox alleges that he was injured when undetected gasses exploded as he was welding inside a pipe on the platform. ⁹

Wilcox filed this lawsuit seeking relief under the Jones Act and the general maritime law or, alternatively, under the Longshore Harbor Worker's Compensation Act (“LHWCA”).¹⁰ Wilcox alleges that his injuries resulted from negligence on the part of Max Welders, Wild Well, and Superior, as well as the unseaworthiness of the SUPERIOR PERFORMANCE.¹¹ Max Welders filed an answer generally denying responsibility for plaintiff's injuries and also challenging plaintiff's status as a Jones Act seaman. ¹² Wild Well and Superior similarly denied liability and they jointly filed a cross-claim against Max Welders alleging that Max Welders agreed to indemnify and hold harmless Superior and its subsidiaries, including Wild Well, from all claims of personal injury asserted by Max Welders employees pursuant to an April 20, 2004 Master Service Agreement (“MSA”). ¹³

Max Welders now seeks summary judgment with respect to Wilcox's claims under the Jones Act and the general maritime law.¹⁴ Max Welders argues that Wilcox is not a Jones Act seaman because he did not have the requisite connection to a vessel, or identifiable group of vessels, at the time of the alleged accident.¹⁵ Max Welders contends that Wilcox was a land-based welder who had worked for 34 different Max Welders customers, in connection with 191 Max Welders jobs, in its yard, in inland waters, and offshore. ¹⁶

Wilcox responds that he meets the test for Jones Act seaman status because he was permanently reassigned to be a member of the crew of the SUPERIOR PERFORMANCE for this particular assignment.¹⁷ Wilcox further argues that the totality of the time he spent working offshore during the course of his employment with Max Welders qualifies him as a seaman.¹⁸

Max Welders separately moved for summary judgment to dismiss the cross-claim filed jointly by Superior and Wild Well.¹⁹ Max Welders contends that the MSA identified by Superior and Wild Well in their cross-claim does not apply to the demolition work performed in this case for Wild Well on a platform owned by a third party.²⁰ Max Welders argues, alternatively, that any indemnity provisions in the MSA are void and unenforceable as a matter of public policy under the Louisiana Oilfield Indemnity Act (“LOAIA”), La.Rev.Stat. Ann. § 9:2780.²¹

Superior and Wild Well oppose the motion for summary judgment and they have filed a cross-motion for summary judgment on the identity issues.²² Superior and Wild Well argue that the MSA covers the welding work performed by plaintiff and, alternatively, a September 9, 2010 Vessel Boarding, Utilization, and Hold Harmless Agreement (“VBA”) provides Superior and Wild Well indemnity for the incident.²³

Standard of Law

Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines there is no genuine issue of material fact. SeeFed.R.Civ.P. 56. The party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Id.;Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir.1986).

Once the party seeking summary judgment carries its burden pursuant to Rule 56, the other party must come forward with specific facts showing that there is a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The showing of a genuine issue is not satisfied by creating “ ‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (citations omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The nonmoving party's evidence, however, “is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor.” Id. at 255, 106 S.Ct. 2505;see Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999).

Discussion

I. Seaman Status

The United States Supreme Court has defined the essential requirements for seaman status as twofold. First, “an employee's duties must ‘contribut[e] to the function of the vessel or to the accomplishment of its mission.’ ” Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991)). Second, “a seaman 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.” Id. Qualifying as a seaman under the Jones Act hinges on an employee's status in relation to a vessel rather than on the nature or location of the injury. See id. at 358–64, 115 S.Ct. 2172. “Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore.” Id. at 361, 115 S.Ct. 2172.

The inquiry into seaman status is a mixed question of law and fact and, therefore, “it often will be inappropriate to take the question from the jury.” Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997). Summary judgment is appropriate where “the facts and the law will reasonably support only one conclusion.” Id. (citing Wilander, 498 U.S. at 356, 111 S.Ct. 807). However, “ ‘[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, 115 S.Ct. 2172 (quoting Wilander, 498 U.S. at 356, 111 S.Ct. 807).

A. Contribution to Vessel's Function or Mission

Max Welders argues that Wilcox cannot show that his duties as a platform worker contributed to the function or mission of the SUPERIOR PERFORMANCE. Max Welders argues that the purpose of the SUPERIOR PERFORMANCE was only to house workers and that Wilcox “merely slept, ate, relaxed, and occasionally performed sporadic fabrication and maintenance on the SUPERIOR PERFORMANCE.” Wilcox responds that he performed several tasks to further the mission of the vessel and that the vessel's mission included the demolition work that he performed on the platform.

The Fifth Circuit has recognized that performing “minor duties” on board a vessel that merely houses platform workers does not “transform [one's] position as a platform worker into that of a seaman.” Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 347 (5th Cir.1999); see also Brown v. Performance Energy Servs., LLC, No. 08–852, 2009 WL 152505, at *4 (E.D.La. Jan. 20, 2009) (Africk, J.); Falcon Operators, Inc. v. P.M.P. Wireline Servs., Inc., No. 97–825, 1997 WL 610825, at *3 (E.D.La. Sept. 30, 1997) (Clement, J.). However, it is generally recognized that “satisfying the first prong of the test is relatively easy: the claimant need only show that he ‘do[es] the ship's work.’ ” Becker v. Tidewater, Inc., 335 F.3d 376, 387–88 (5th Cir.2003) (quoting Chandris, 515 U.S. at...