Younce v. Pacific Gulf Marine, Inc.

• Decision Date: 10 April 2002
• Docket Number: No. 01-CA-546.,01-CA-546.
• Citation: 817 So.2d 255
• Parties: Harold YOUNCE v. PACIFIC GULF MARINE, INC. and ABC Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

817 So.2d 255

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

No. 01-CA-546.

Court of Appeal of Louisiana, Fifth Circuit.

April 10, 2002.

John H. Clegg, Daphne P. McNutt, McGlinchey Stafford, New Orleans, LA, for defendant-appellant.

Sean D. Alfortish, Michael E. Holloway, Salvador M. Brocato III, New Orleans, LA and Robert E. Arceneaux, Metairie, LA, for plaintiff-appellee.

Wiley J. Beever, Raylyn R. Beevers, Gretna, LA, Defendant-Amicus.

Court composed of Judges SOL GOTHARD, THOMAS F. DALEY and CLARENCE E. McMANUS.

McMANUS, Judge.

In this matter, finding no manifest error in any of the rulings below, we affirm the judgment awarding damages, maintenance and cure and attorney's fees to Plaintiff Appellee, Harold Younce, and, in addition, affirm the denial of a motion to recuse the trial judge.

STATEMENT OF THE CASE

The instant matter was instituted on January 2, 1998, with Plaintiff Appellee, Harold Younce's, Seaman's Petition.¹ The suit named as Defendant Appellant Pacific Gulf Marine, Inc. (PGM), and sought damages based on Younce's claims under the Jones Act and General Maritime Law. In addition, the suit also claimed attorney's fees grounded in the claim that PGM had arbitrarily and without justification stopped Younce's maintenance and cure payments. PGM's Answer was filed on September 1, 1998.

During the very early proceedings in this matter, various pre-trial matters had been heard by an ad hoc judge; the trial on the merits was ultimately presided over by Judge Ross P. LaDart, who took office in May of 1999. The record shows that Judge LaDart first heard pre-trial motions in this matter on June 25, 1999. On June 24, 1999, an order was signed allowing Wiley J. Beevers to enroll as co-counsel, representing Younce.

On August 11, 1999, PGM filed a Motion in Limine to Exclude Unreliable and Inadmissible Testimony Sought to Be Offered by Plaintiffs Experts. This motion sought to exclude, on the basis of a Daubert objection, the testimony of Younce's treating physician, Dr. John Watermeier, M. D.

According to the record, the Daubert motion had been the subject of a pre-trial conference held on August 18, 1999; during the recorded proceedings on that date, the trial judge denied the motion, ruling that any such objections would simply go to the weight of Dr. Watermeier's testimony.

The trial in this matter was held over scattered dates in August, 1999, December, 1999, and February, 2000. During the trial, PGM's Daubert motion was again urged during Dr. Watermeier's testimony.

At the conclusion of Younce's case in chief, the trial judge denied a Motion for Directed Verdict on the issue of whether PGM had arbitrarily stopped Younce's maintenance and cure.

The record contains a handwritten judgment signed by Judge LaDart on March 25 (or March 26—the date is not clearly written), 2000. There is no minute entry accompanying this judgment, nor is there any indication that service was made on counsel of record.

On March 30, 2000, PGM filed a Motion to Recuse Judge LaDart, alleging that Judge LaDart's "longstanding professional and financial relationship" with Wiley Beevers had given rise, during the trial of this matter, to bias on Judge LaDart's part in Younce's favor.

On April 4, 2000, the recusal was reallotted to Judge Ronald D. Bodenheimer for hearing. Also on April 4, Judge LaDart brought (some part of) the record in this matter to Judge Bodenheimer's chambers; the handwritten judgment was included as part of the record. At a hearing held on April 26, 2000, Judge Bodenheimer, based on the handwritten judgment of March 25 (or 26), held that the post-judgment motion to recuse was not timely.

Notice, stating that Judge LaDart had signed a judgment on the main demand, was issued on April 26, 2000. Extensive written reasons were filed into the record on May 2, 2000. The judgment awarded Younce general damages as follows: $200,000.00 for the cervical injury; $250,000.00 for the lumbar injury; $68,000.00 for the knee injury; $75,000.00 for the shoulder injury; $84,172.00 in past lost wages and $328,833 in future lost wages; past maintenance benefits of $8,952.00; and medical specials (as itemized in reasons for judgment) in the amount of $152,766.00. In addition, the judgment ordered PGM to continue maintenance and cure payments until "plaintiff reaches maximum medical cure as determined by a physician."

On May 31, 2000, a panel of this Court, under docket number 00 C 1052, based on the finding that the handwritten judgment would not operate to bar the filing of a recusal on all grounds, remanded the matter for a hearing based on allegations of professional and financial relationships between Beevers and Judge LaDart.

On June 13, 2000, PGM filed a motion to recuse Judge Bodenheimer. This motion, too, was re-allotted, and on July 17, 2000, Judge Martha E. Sassone granted the motion, based on the finding that Judge Bodenheimer would be called as a witness regarding the handwritten judgment.

The motion to recuse was ultimately denied by Judge Alan J. Green, after proceedings held August 29 and 30, 2000. The written judgment was signed September 8, 2000.

Pursuant to post trial motions filed by both parties, and after several post trial hearings, a judgment was signed on October 20, 2000, in which the trial judge found that PGM had improperly stopped Younce's maintenance and cure; the judge therefore awarded attorney's fees in favor of Younce's counsel. In a judgment signed on October 24, 2000, the trial judge awarded, and adjusted the awards for, various special damages and costs. In addition, in this judgment, the trial judge "bifurcated" the awards of general damages to allow pre-judgment interest only to awards for past damages.

PGM's timely motion for appeal followed.

FACTS

The instant suit arises out of an accident that occurred on December 31, 1995, on the M/V Sugar Islander. Younce was injured when he was lifted by, then dropped from, a metal cargo cage being hoisted from the pier alongside of the ship. Younce's original petition alleged negligence on the part of the crew conducting the operation during which he fell; he alleged also that a defect in the metal cage rendered it, and thus the ship, unseaworthy.

At the time of the accident, the ship's personnel were employed by Defendant PGM pursuant to a management contract between PGM and the owners of the vessel. Plaintiff Younce was employed as an able bodied (AB) seaman on the Sugar Islander on the date in question; it was stipulated before trial that Younce had been so employed from October 15, 1995 through January 2, 1996. All of the ship's employees who testified, testified that Younce had been a good worker over the course of the cruise, and that he had never exhibited any infirmities that interfered with his work. On December 31, 1995, the ship had just returned from overseas and was docked in Morehead City, North Carolina.

At the time the accident occurred, the ship's hands had been engaged in offloading the ship's CO2 tanks for maintenance and possibly refilling. Directing the operation was the ship's first mate, John Hanley, who had been operating the winch being used to transport the tanks from the ship to the wharf. Younce had been on the pier, along with Jean Couvillion, the ship's, or, one of the ship's, QMED/OS(s). Younce and Couvillion had been unloading the tanks from a metal cage (sometimes described as a basket) for retrieval by the maintenance contractor. In addition, during the operation, Younce had been serving as the signalman, directing Hanley as Hanley lifted the cage off of the pier. The ship's second mate, Jeffery Sutton, was assisting in the operation on the deck of the ship.

Hanley testified that they had begun the operation using a cargo net to move the tanks, but had switched to the metal cage to take advantage of its increased capacity. Hanley stated that he didn't know who the cage belonged to; he and the ship's boatswain had found it sitting on the dock. Hanley had "looked at" the cage, but hadn't "inspected" it before the crew put it into use. He stated that the only problem he remembered in connection with the cage was that the basket's gate had to be "jostled" to allow closing when the cage was full.

Younce described the cage as "banged up," or, "defaulted (sic)." He testified that he and Couvillion had been required to push and pull the gate to align the sides of the cage, which allowed a pin to be inserted into the closing fixture. In addition, he stated that after it had started to rain, efforts to close the basket had become more difficult: he had been required to use his body as leverage to force the gate to close. He testified that it had taken "considerable" force to push, and hold, the gate closed to insert the pin. Finally, Younce testified that Hanley "had to know" that he and Couvillion were having problems with the cage because he had stopped work to "check it out" at least once.

Couvillion agreed, by way of a video deposition, that the cage's gate was "warped." He testified that he and Younce had had to use "pressure" to align and close the gate; Younce had been "pushing against" the gate, with his arm on top of the basket, to allow Couvillion to insert the pin.

The captain of the ship, Martin Macisso, testified that he could not recall having received any complaints about the basket during the operation.

David Cole, Younce's expert witness, opined that the problems with it rendered the basket unseaworthy. Cole had been in the Coast Guard for twenty years, working as part of the marine safety program. He had been a casualty investigator for the Guard, thirteen years, and a hearing officer for a year with the 8th Coast Guard District. He was qualified as an expert in marine safety.

Younce described the accident as follows. He stated that as he and Couvillion had been pushing and pulling, as he was still pulling, the basket suddenly lifted off of the...