Younce v. Pacific Gulf Marine, Inc.

• Decision Date: 22 January 2008
• Docket Number: No. 07-CA-421.,07-CA-421.
• Citation: 977 So.2d 117
• Parties: Harold YOUNCE v. PACIFIC GULF MARINE, INC. and ABC Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

977 So.2d 117

Harold YOUNCE v. PACIFIC GULF MARINE, INC. and ABC Insurance Company.

No. 07-CA-421.

Court of Appeal of Louisiana, Fifth Circuit.

January 22, 2008.

Sean D. Alfortish, Attorney at Law, Kenner, LA, Wiley J. Beevers, Attorney at Law, Gretna, LA, for Plaintiff/Appellant, Harold Younce.

John H. Clegg, Attorney at Law, New Orleans, LA, for Defendant/Appellee-Second Appellant, Pacific Gulf Marine, Inc.

Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.

SUSAN M. CHEHARDY, Judge.

This personal injury case has been before this Court repeatedly on applications for supervisory writs and on prior appeals. It now comes before us following a second bench trial on the merits. Both parties have appealed.

On December 31, 1995, Harold Younce was a Jones Act seaman employed by Pacific Gulf Marine, Inc. (hereafter "PGM") as an able-bodied seaman aboard the M/V SUGAR ISLANDER. On that day he was injured in the course of his employment while engaged in off-loading CO₂ (carbon dioxide) tanks from the ship onto a pier. He was serving as signalman to the winch operator. During the operation his left arm or jacket became caught on a metal cargo basket being used for the offloading and his left arm was pulled upward as the winch began to lift the basket. The injuries he sustained are the basis of this lawsuit.

HISTORY OF THE CASE

On January 2, 1998 Younce filed this lawsuit against PGM, alleging he sustained injuries to his left arm, left shoulder, neck, upper and lower back, and left knee. He sought damages under the Jones Act and general maritime law, as well as maintenance and cure. He also sought attorney's fees for arbitrary cessation of maintenance and cure payments.¹

The case was originally tried in a bench trial in 1999, with judgment in favor of the plaintiff. On appeal this Court affirmed, but the Louisiana Supreme Court vacated the judgment on the basis the trial judge should have been recused, and remanded the matter for a new trial before a different judge.²

On remand, the matter was allotted to another judge. PGM filed reconventional demands against Younce and one of his attorneys. Younce and the attorney filed exceptions of prescription, which were sustained. On appeal the ruling was upheld by this Court.³

Thereafter PGM moved for summary judgment on the basis that Younce had forfeited his rights to maintenance and cure by intentional misrepresentation of his medical condition during a medical examination prior to beginning to work on the SUGAR ISLANDER. The trial court granted partial summary judgment and dismissed the claim for maintenance and cure. On appeal this Court reversed the summary judgment, finding there were genuine issues of material fact that precluded summary judgment.⁴

The case was retried on its merits for seven days in April 2006. On September 1, 2006, the district court rendered judgment, in which it found that PGM was negligent, that Younce was comparatively negligent, and that the parties were equally at fault.

With respect to causation of Younce's injuries, the court found that the neck and shoulder injuries were consistent with the facts of the accident and were established by credible medical evidence. However, the court found that the left knee and lumbar spine injuries were not attributable to this accident. The court concluded the knee injury was caused by other accidents that occurred prior to the incident on the SUGAR ISLANDER, and the lumbar spine pain manifested too long after this accident to be convincingly related.

The court further found the vessel was not unseaworthy. The court concluded that neither the basket in which the plaintiffs arm/sleeve was caught, nor the negligence of his coworker Jack Hanley, created an unseaworthy condition. The court specifically found that the basket was reasonably suited for its intended use and that Hanley's negligence was an isolated act.

Finally, the court found the plaintiff was not entitled to maintenance and cure benefits beyond those he had already received from PGM. Thus, the issue of whether the plaintiff was entitled to attorney's fees for egregious denial of maintenance and cure was moot.

Based on its findings regarding causation, the court awarded the plaintiff medical expenses related to treatment of his shoulder and cervical spine injuries, less amounts paid by PGM as cure benefits.

With regard to the claim for loss of earning capacity, the court attributed one hundred percent of the plaintiffs lost wages to his shoulder and cervical spine injuries up to February 1997. After February 1997, the court found that fifty percent of the plaintiffs lost wages were attributable to his shoulder and cervical spine injuries.

The court concluded it would be inequitable to award pre-judgment interest against the defendant, and pointed out, "The specific peculiarities which pervaded this entire litigation are too numerous to mention, but we note they are well-reflected in the trial and appeal records." The court noted that the accident occurred more than ten years prior to the second trial; final judgment and appeal were delayed due to the case's multiple trips back-and-forth through the judicial system; after re-allotment and resetting for new trial, the parties were particularly contentious; and other events while the second trial was pending caused unusual delays and created peculiar circumstances. Based on the "extraordinary delay in reaching an ultimate trial judgment," the court held it would be inequitable for the defendant to pay prejudgment interest in this matter.

The court also noted it had previously ordered the parties to bear one-half the cost of the special master's expenses. The court declined to revisit that decision because the appointment of the special master was for the mutual benefit of the parties. The court also denied PGM's motion for sanctions for the plaintiff's failure to comply with discovery requests.

Based on the equal apportionment of fault between the plaintiff and PGM, the court awarded the plaintiff fifty percent of reasonable expert expenses as determined by the court, and assessed PGM its own costs.

The court awarded the plaintiff a total of $566,901.18, reduced by the plaintiff's fifty-percent fault, as follows:

                                           Summary of Damages
                Pain and Suffering                                          $250,000.00
                Medical Expenses                                            $ 50,255.10
                                  Louisiana Clinic             $23,222.00
                                  Diagnostic Imaging Services    2,123.00
                                  The Wellness Center            4,081.00
                                  St. Charles General Hosp.     18,863.10
                                  Orleans Anesthesia Group       1,159.00
                                  Dr. Richard Meyer                218.00
                                  Radiology Consultants            139.00
                

                                  Dr. Fortier-Benson               450.00
                                                               __________
                                                               $50,255.10
                Lost Wages                                                  $266,646.08
                TOTAL                                                       $566,901.18
                Comparative Negligence (TOTAL x .5)                         $283,450.59
                Costs ($5,790.00 x .5)                                      $  2,895.00
                                  Dr. Larry Stokes             $ 1,040.00
                                  Dr. Amusa                      1,200.00
                                  Matthew Slimming                 450.00
                                  Dr. Randy Rice                   300.00
                                  Commander Cole                   400.00
                                  Dr. Watermeier                +2,400.00
                                                              ___________
                                                               $ 5,790.00
                TOTAL AWARD                                                 $286,345.59
                

Both the plaintiff and the defendant appealed.

FACTS

On December 31, 1995, Younce was a 36-year-old able-bodied seaman. He had served aboard the M/V SUGAR ISLANDER since October 1995. On the day of the accident, he was helping to prepare the ship for a Coast Guard inspection. The vessel was docked at Moorehead City, N.C.

Younce was helping to move C0₂ canisters. The crew first used a cargo net for the task, until one of the crew members suggested using a cargo basket that had been either discarded or abandoned on the dock. The basket had a steel gate on one end that was warped or deformed, so that the gate could not be closed easily. The workers had to exert pressure to pull the bent or warped metal back into line so a pin could be inserted through the eyelet openings to secure the gate closed while the canisters were being lifted.

Younce testified it had been raining and so he had to contort his body to maintain a firm foothold in order to exert pressure, and also to brace himself while using his hands and arms to pull the metal back into place. He hooked his armpit over the top of the basket in order to brace himself.

Just as Younce and a coworker, Jean Couvillion, were slipping the pin into place on one of the loads, the basket was suddenly raised by the winch operator, Jack Hanley, who was the chief mate employed by PGM aboard the vessel. Younce's arm was caught and wrenched upward. Younce testified he felt himself being lifted, and then fell to the deck, He claimed he went to his knees and grabbed his shoulder due to excruciating pain. In contrast, Couvillion said Younce never fell to his knees. Hanley testified he only looked away from the operation for a matter of seconds and when he looked back, Younce was running around the pier. Both Couvillion and Hanley testified that if Younce was lifted by the basket, it could only have been a few inches. The accident occurred in a matter of seconds, the winch was very slow-moving, and could not have lifted Younce to any great height. Hanley said the basket was only a few inches off the ground when h...