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U.S. Fifth Circuit Rules that Shore-Based Vessel Repair Supervisor is Jones Act Seaman

Posted in Admiralty and Maritime

By Dylan Thriffiley

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Naquin v. Elevating Boats, L.L.C., — F.3d —, 2014 WL 917053, No. 12-31258 (5th Cir. Mar. 10, 2014)

(Davis and Milazzo, J.; Jones, J. dissenting)

In a decision that will undoubtedly have a lasting impact on marine insurers and their shipyard insureds, a divided panel of the U.S. Fifth Circuit held that a vessel repair supervisor at a Houma shipyard qualifies as a Jones Act seaman.

Plaintiff, Larry Naquin, Sr., was employed as a vessel repair supervisor at his employer’s shipyard facility in Houma, Louisiana. Naquin was not assigned to a particular vessel but instead spent seventy percent of his time repairing, cleaning, painting and maintaining lift-boat vessels at the shipyard. Ordinarily, he worked aboard the lift-boats while they were moored, jacked up or docked in the shipyard canal. The remaining thirty percent of his time was spent working in the shipyard’s fabrication shop or operating the shipyard’s land-based crane.

On November 17, 2009, Naquin was operating the shipyard’s land-based crane, when the crane suddenly failed and toppled over onto a nearby building. Naquin himself was able to escape the crane house but not without sustaining a broken left foot, a severely broken right foot, and a lower abdominal hernia.

A jury held that Naquin was a Jones Act seaman and that EBI’s negligence caused his injury, awarding him $1,000,000 for past and future physical pain and suffering, $1,000,000 for past and future mental pain and suffering, and $400,000 for future lost wages. Elevating Boats (“EBI”) appealed, contending that Naquin was not a Jones Act seaman, that the district court provided erroneous seaman status jury instructions, that the evidence was insufficient to establish EBI’s negligence, and that the district court erred in admitting evidence of Naquin’s cousin’s husband’s death.

In a split decision, authored by Judge Eugene Davis and joined by Judge Milazzo, District Judge for the Eastern District of Louisiana (sitting by designation), the U.S. Fifth Circuit affirmed the district court’s judgment on seaman status and liability. It then vacated the damages award, due to the jury’s reliance on emotional anguish resulting from the death of a third party.

Despite EBI’s argument that ship repairmen are expressly included in the jobs listed in the Longshore and Harbor Workers’ Compensation Act, the Fifth Circuit rejected this argument, noting that while the court had previously agreed with EBI’s position in Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1986), that decision was specifically overruled in this regard by the Supreme Court in Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991). Because Naquin’s work contributed to the function of EBI’s fleet of vessels, and because his connection to that fleet was substantial, the Fifth Circuit upheld the jury’s finding that Naquin was a Jones Act seaman, despite the fact that the vessels were usually docked, Naquin was not often exposed to the dangers of the sea, and he spent nearly every night in his own land-based home.

Judge Jones issued a strong dissent, opining that while Naquin’s work contributed to the function of a vessel, that his connection to the vessel(s) was not substantial. As noted by Judge Jones “if a jury could hold Naquin is a seaman, then it could so conclude as to any shore-based worker who maintained EBI’s on-board computers or went aboard the lift-boats to gas them up before they left the repair yard.” Judge Jones argued that the majority opinion did not properly interpret the concept of a “vessel in navigation” where Naquin was a dock worker who performed repairs to vessels at the dock. She points out that the majority’s conclusion is irreconcilable with the “basic point” in Chandris v. Latsis, 515 U.S. 347, 368 (1997), that land-based employees are not seamen.

This opinion has significant implications for shipyard operators and the vessels they service, as the circuit courts continue to expand the definition of Jones Act seaman status.

 

Fifth Circuit Recognizes Subrogation Lien In Jones Act Case

Posted in Admiralty and Maritime

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By Amanda Howard

In Chenevert v. Travelers Indemnity Co., No. 13-60119 (5th Cir. March 7, 2014), the Fifth Circuit formally recognized that an insurer providing and making voluntary payments to an injured employee under the Longshore and Harbor Workers’ Compensation Act 33 U.S.C.A. § 901 et seq (“LHWCA”), specifically 905(b), is entitled to a subrogation lien against the settlement recovery by the employee of Jones Act damages obtained for the same injuries for which the insurer has already compensated the employee.

Mr. Chenevert filed a personal injury lawsuit against his former employer, GC Constructors (“GC”), after he allegedly sustained injuries while working as a crane operator on the deck of a barge owned by GC in May of 2007. At the time of his injury, Travelers Indemnity Co. (“Travelers”) provided coverage to GC for Mr. Chenevert’s injuries under the LHWCA. The Travelers policy specifically excluded coverage for bodily injuries to a master or a member of the crew of any vessel. Between May 2007 and May 2010, Travelers paid benefits under the LHWCA in excess of $275,000, but discontinued those benefits in May of 2010, when Mr. Chenevert sued GC in federal court alleging negligence under the Jones Act and “seaman” status. Travelers then put Mr. Chenevert and GC on notice that it would seek reimbursement of the amounts paid under the LHWCA from any recovery Chenevert received in his Jones Act lawsuit.

After Chenevert and GC reached a settlement in the Jones Act case, Travelers sought and was granted leave to file a motion to intervene for the first time. Travelers filed its motion to intervene wherein it asserted its right to subrogation as a result of its payments of LHWCA indemnity and medical benefits made to Chenevert prior to the filing of his Jones Act lawsuit. As part of their final resolution, the parties agreed to interplead $277,728.72 into the court’s registry pending resolution of the dispute between Chenevert and Travelers. The Magistrate to whom this issue was assigned ultimately denied Travelers right to recoup its payments basing his decision on the legal tenant that no right of subrogation can arise in favor of an insurer against its own insured. The Magistrate also found that Travelers had not demonstrated an interest relating to the subject property or transaction and that Travelers had untimely moved to intervene in the case. Travelers appealed the decision to the United States Fifth Circuit.

On appeal to the U.S. Fifth Circuit, the court felt that the rule of law relied upon by the Magistrate would not apply in this factual setting as Travelers did not insure GC against Jones Act liability. Moreover, the court noted that the LHWCA itself grants subrogation liens to the employer’s insurers when compensation benefits are paid. The panel cited its previous holdings in Peters v. North River Ins. Co., 764 F.2d 306 (5th Cir. 1985) (recognizing the employer/insurer’s compensation lien in a third party suit), Taylor v. Bunge Corp., 845 F.2d 1323 (5th Cir. 1988) (recognizing insurer’s right to recovery in 905(b) claim against the employer as a vessel owner) and Massey v. William-McWilliams, Inc.. 414 F.2d 675 (5th Cir. 1969), which recognized a ship owner-employer’s right to a credit for amounts paid under the LHWCA that bear reasonable relation to the items of loss compensated under a Jones Act claim. The court felt the right to assert a subrogation lien by Travelers as a logical extension of this line of cases and it saw no difference between the insurer in the Massey case and Travelers in the instant case asserting a lien against a 905(b) recovery as opposed to a lien against a Jones Act recovery.

In answering this question, the U.S. Fifth Circuit specifically stated, “we perceive no sound reason why an insurer’s right of reimbursement against a Jones Act recovery should be different from its right of reimbursement against a 905(b) recovery. Arguably, an insurer has an even stronger equitable claim to repayment from a Jones Act recovery.” The court further acknowledged that “a worker who succeeds in a Jones Act claim is necessarily a seaman, and therefore not entitled to LHWCA benefits. It would be particularly unfair to deny the insurer the right to recover the benefits it has paid in such a situation.” The court reasoned that “by paying LHWCA benefits on behalf of GC, Travelers acquired a repayment lien that is independent of, and cannot be nullified by, GC. If this were not so, an employer and employee could easily settle around the insurer’s lien and prevent any possibility of recovery by the insurer.” The U.S. Fifth Circuit thus reversed the district court and remanded.

 

 

Work Related Stress: It Comes With The Job for a Jones Act Seaman

Posted in Admiralty and Maritime

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By Daniel B. Stanton

In a recent decision, the Eleventh Circuit in Skye v. Maersk Line Limited, Corp., 751 F.3d 1262 (11th Cir. 2014), reveresed a district court ruling awarding damages to a Jones Act seaman for injuries stemming from “excessive work hours and an erratic sleep schedule.” The Court’s decision in Skye reaffirms a now decades old prohibition on recovery under the Jones Act for injuries resulting from work-related stress.

From 2000-2008, the Plaintiff, William Skye, was employed as chief mate aboard a vessel operated by defendant, Maersk. During this time, Skye worked between 90 and 105 hours per week for periods of 70 to 84 days at a time. In 2003 Skye was diagnosed with a benign arrhythmia, and his cardiologist suggested that he get more rest. By 2008, Skye was experiencing headaches, back aches, and was diagnosed with a left ventricular hypertrophy, or thickening of the heart wall. In 2011, Skye brought a Jones Act negligence suit against his employer, Maersk, alleging that Maersk negligently failed to provide sufficient crew, reasonable working hours, and adequate rest hours. At trial, a jury awarded Skye $2,362,299.00, which the district court reduced to $590,574.75 as a result of Skye’s comparative fault. Maersk moved for a judgment as a matter of law, alleging that Skye’s injuries were not cognizable under the Jones Act based on Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994). The district court denied Maersk’s motion and rendered judgment in favor of Skye.

On appeal, the Eleventh Circuit noted that the Jones Act does not recognize all work-related injuries. The “central focus” of the Jones act is protection from “physical perils.” The Court found that Skye’s case failed for the same reasons as the case of the plaintiff in Gottshall. In Gottshall, the plaintiff’s complaint was similar to that of Skye’s. Both complained of injuries stemming from long hours and job-related stress. The Gottshall court, denied recovery to the plaintiff because work-related stress is “not caused by any physical impact.” Consistent with the precedent set by Gottshall, the Eleventh Circuit refused to expand the definition of “physical perils” to include an “arduous work schedule and an irregular sleep schedule.” The Court noted that it was not the development of a physical injury that brought a claim within the ambit of the Jones Act, but rather the cause of the injury. For an employer to become liable for an employee’s injury, it must be the result of a physical impact. Accordingly, the Court vacated the judgment of the district court and rendered judgment as a matter of law in favor of Maersk.

The Eleventh Circuit’s ruling in Skye reaffirms the common-sense understanding that work-related stress comes standard with all jobs. Similarly, individuals have varying levels of tolerance for stress. An employer should not become responsible for employee injuries resulting from an employee’s inability to manage work-related stress in an at-will employment relationship.

 

11th Circuit Rejects Long-Standing 5th Circuit Barbetta Rule Thereby Allowing Passengers to Sue Shipowners for the Negligence of its Medical Staff

Posted in Admiralty and Maritime

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By Tod J. Everage

Going back to 1943, the Supreme Court in De Zon v. Am. President Lines, Ltd., 318 U.S. 660, 669 (1943), ruled that a shipowner could be liable to a Jones Act seaman for harm suffered as the result of any negligence on the part of the ship’s doctor while treating the seaman. The U.S. Supreme Court has never commented on whether De Zon extended those claims to a passenger. In 1988, the 5th Circuit did just that in Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988), limiting the liability of shipowners to only seaman and not passengers.

The “Barbetta Rule” immunizes a shipowner from respondeat superior liability whenever a ship’s employees render negligent medical care to its passengers. As applied, the rule confers this broad immunity no matter how clear the shipowner’s control over its medical staff or the level of claimed negligence by the medical staff. As is expected, the majority of the recent case law on this issue stems from cruise ship industry, as other types of medically-staffed passenger ships are increasingly rare. And, starting in the late 1980’s cruise ships began forcing passenger to sue in the Southern District of Florida, nearly eliminating passenger suits in the 5th Circuit. Thus, Barbetta has not been challenged in the Fifth Circuit, and for the first time recently became the subject of focus within the 11th Circuit.

On November 10, 2014, the 11th Circuit issued a lengthy, and well-reasoned opinion specifically rejecting the Barbetta Rule, and adopted a fact-based agency determination that would allow a shipowner to be held liable for its medical staff’s negligence in their care of a passenger.

In this case, Pasquale Vaglio fell and hit his head on the Royal Caribbean “Explorer of the Seas.” He went to the infirmary for medical treatment. Plaintiffs allege that the treatment from the on-board staff was so negligent that his life could not be saved. In particular, the ship’s nurse purportedly failed to assess his cranial trauma, neglected to conduct any diagnostic scans, and released him without any treatment. The on-board doctor failed to meet with Vaglio for over four hours. Vagio died from his injuries a week later. Vaglio’s heirs filed suit against Royal Caribbean under two theories: actual agency (respondeat superior) or apparent agency. The Southern District of Florida dismissed the complaint under the Barbetta Rule.

As stated, the 11th Circuit rejected Barbetta’s blanket immunity to shipowners. Recognizing its authority to affect general maritime law, the 11th Circuit sought out to establish new precedent on this issue. “We have repeatedly emphasized that vicarious liability raises fact-bound questions, and we can discern no sound reason in law to carve out a special exemption for all acts of on-board medical negligence. Much has changed in the quarter-century since Barbetta. As we see it, the evolution of legal norms, the rise of a complex cruise industry, and the progression of modern technology have erased whatever utility the rule once may have had.”

The 11th Circuit started with the century-old maritime principle of making principals answer for the negligence of their onboard agents. See, e.g. The Kensington, 183 U.S. 263 (1902); The J.P. Donaldson, 167 U.S. 599, 603 (1897). In other factual contexts, the Supreme Court and all federal circuits have generally applied agency rules “across a rich array of maritime cases.” See, e.g. Suzuki of Orange Park, Inc. v. Shubert, 86 F.3d 1060 (11th Cir. 1996); Gibboney v. Wright, 517 F.2d 1054 (5th Cir. 1975); Matheny v. Tenn. Valley Auth., 557 F.3d 311, 315 (6th Cir. 2009); CEH, Inc. v. F/V Seafarer, 70 F.3d 694 (1st Cir. 1995); McDonough v. Royal Caribbean Cruises, Ltd., 48 F.3d 256 (7th Cir. 1995); Jackson Marine Corp. v. Blue Fox, 845 F.2d 1307 (5th Cir. 1988); De Los Santos v. Scindia Steam Navigation Co. Ltd., 598 F.2d 480 (9th Cir. 1979); Pritchett v. Kimberling Cove, Inc., 568 F.2d 570 (8th Cir. 1977); Ira S. Bushey & Sons, Inc. v. U.S., 398 F.2d 167 (2d Cir. 1968). With this backdrop, the Court acknowledged that there are no bright line rules immunizing cruise ship medical employees for their negligent treatment of passengers. And, the Court saw “nothing inherent in onboard medical negligence, when committed by full-time employees acting within the course and scope of their employment, that justifies suspending the accepted principles of agency.”

Next, the Court acknowledged that several federal circuits have “long barred vicarious liability” in this exact context, starting with Barbetta. In Barbetta, a passenger on a cruise ship sued the ship because the ship’s doctor failed to discover that the passenger had diabetes during treatment. By 1988, neither the Supreme Court, the Fifth Circuit, or any district court under the Fifth Circuit had answered the question of whether De Zon extended to passengers. The Barbetta declined to do so, finding a lack of control by the shipowner over the relationship between the passenger and the ship’s doctor. Next, the Court commented that “ships are not floating hospitals,” that shipowners are not in the business of providing medical care to passengers, and shipowners specifically lack the expertise in properly supervising the medical staff. Bottom line, because the shipowner lacked control over the medical staff’s actions, general maritime law did not impose liability under the doctrine of respondeat superior upon a carrier or ship owner for the negligence of a ship’s doctor who treats the ship’s passengers. The Barbetta Rule has been adopted by some courts, see Cummiskey v. Chandris, S.A., 895 F.2d 107 (2d Cir. 1990); Mumford v. Carnival Corp., 7 F.Supp.3d 1243 (S.D. Fla. 2014); Hilliard v. Kloster Cruise, Ltd., 1990 WL 269897 (E.D. Va. 1990); and rejected by others. See Huntley v. Carnival Corp., 307 F.Supp.2d 1372 (S.D. Fla. 2004); Nietes v. Am. President. Lines, Ltd., 188 F. Supp. 219 (N.D. Cal. 1959); Mack v. Royal Caribbean Cruises, Ltd., 838 N.E. 2d 80 (Ill. App. Ct. 2005).

In analyzing Barbetta in the modern day, the 11th Circuit found it more accurate to say that, “absent any statutory mandate to the contrary, the existence of an agency relationship is a question of fact under the general maritime law.” The Court strongly announced its rejection of Barbetta, “because we can no longer discern a sound basis in law for ignoring the facts alleged in individual medical malpractice complaints and wholly discarding the same rules of agency that we have applied so often in other maritime tort cases.” It found that the Barbetta Rule “now seems to prevail more by the strength of inertia than by the strength of its reasoning.” In exercising its broad admiralty jurisdiction, the 11th Circuit was guided by its “experience and new conditions [to] give rise to new conceptions of maritime concerns.” Now, instead of 19th Century steam ships (focus of Barbetta), the courts (and passengers) are confronted with state-of-the-art cruise ships, complete with well-stocked modern infirmaries and urgent care centers. Today, cruise ships actually exert more control over their medical employees. Though it will be unpopular among passenger vessel owners, it is hard to disagree with the 11th Circuit’s reasoning.

The Court went further to find that the case law is overwhelming in its recognition that principles of vicarious liability in the medical industry. And, the court could find no principle from maritime tort law that justifies treating shipowners so differently from ordinary employers. Importantly, the 11th Circuit found control and an agency relationship between the on-board medical providers and Royal Caribbean, their employer. The Court simply refused to adopt a bright line immunity rule for shipowners, repeatedly asserting that the agency relationship is bogged in the specific facts of the case.

This case is presented here for its erosion of a long-standing Fifth Circuit rule. Beyond that, this particular issue seems germane mainly to cruise ships and thus, the 11th Circuit. And, while it may present well-reasoned ammunition to a plaintiff-passenger who might find a way to sue in the 5th Circuit to attack Barbetta, it has no controlling legal effect here yet. Given the significant liability implications to the cruise ship industry in the 11th Circuit, and the now-existing circuit split on the issue, it would seem likely that Royal Caribbean would want to take writs to the Supreme Court. They would likely argue, as they unsuccessfully did to the 11th Circuit that there needs to be uniformity in maritime law – which also happens to be a relevant issue in the maritime punitive damages arena that may make its way to the Supreme Court soon as well. That being said, it seems unlikely that the Supreme Court would accept the invitation to weigh in on this issue, given the 11th Circuit’s well-reasoned and current explanation.

 

EEOC Resolves to Protect LGBT Workers from Employment Discrimination in 2015

Posted in Labor and Employment Law

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By Erin Kilgore

In recent months, the EEOC has made clear that protections for LGBT workers remains a priority for the EEOC. Before Thanksgiving, the EEOC published a document entitled “What you Should Know about EEOC and the Enforcement Protections for LGBT Workers,” in which the EEOC touted its enforcement efforts in this area and reaffirmed its commitment to fighting discrimination against LGBT individuals in the workplace.

In what commentators have dubbed the EEOC’s “guidebook” on this issue, the EEOC reasserted its position that workplace discrimination based on sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964. The EEOC’s Strategic Enforcement Plan (adopted in December 2012) listed “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as a top enforcement priority. Consistent with that priority, the EEOC recently filed two lawsuits on behalf of transgender employees challenging alleged sex discrimination, and an amicus brief in the Seventh Circuit related these issues.

Significantly, the EEOC explained that it has instructed its investigators and attorneys that “discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment.” In addition, investigators and attorneys were “instructed that lesbian, gay, and bisexual individuals also may bring valid Title VII sex discrimination claims, and that the EEOC should accept charges alleging sexual-orientation-related discrimination.” These allegations may include claims of sexual harassment or sex discrimination because of an individual’s failure to conform to sex-stereotypes.

As part of its outreach efforts, the EEOC has also developed a brochure on Gender Stereotyping, Preventing Employment Discrimination of Lesbian, Gay, Bisexual or Transgender Workers.

A copy of the EEOC’s “guidebook” can be found here.

 

Electronic Discovery and Social Media

Posted in E-Discovery

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By Jason Cashio

Is a defendant entitled to rummage through the desk drawers and closets in a plaintiff’s home as part of discovery in a civil case? Most would agree this is beyond the scope of standard discovery.

A United States District Court Judge used this logic to limit the discovery of plaintiff’s social media accounts when the defendant sought complete access to plaintiff’s entire social media records. In Ogden v. All-State Career School, –F.R.D.–, 2014 WL 1646934 (W.D. Pa. 2014), an employee sued his employer for subjecting him to a hostile work environment as well as retaliation, in violation of Title VII. Plaintiff’s employer moved to compel production of the employee’s entire social media records, demanding access to or production of complete copies of all social media accounts. Although courts have permitted discovery of social media, such as Facebook records, when it is reasonably calculated to lead to the discovery of admissible evidence, the court noted that “it is the nature of the claims and defenses and not merely the form of medium that define the bounds of relevancy and courts have declined to permit far-roving discovery into social media accounts where the inquest does not meet the basic tenants of Rule 26.” The court concluded that ordering plaintiff to permit access to or produce complete copies of his social media accounts “would permit defendant to cast too wide a net and sanction an inquiry into scores of quasi-personal information that would be irrelevant and non-discoverable. Defendant is no more entitled to such unfettered access to plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in plaintiff’s home.” As such, parties are not entitled to “unfettered access” to social media accounts. Rather, the proper method for obtaining relevant information is to serve limited requests for production for information related to the claims or defenses involved in the case.

The Safe Harbor Rule of E-Discovery: Rule 37(e) Governs Consequences of Failure to Preserve Discoverable ESI

Posted in E-Discovery

By Sam O. Lumpkin

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Rule 37(e) of the Federal Rules of Civil Procedure, also known as the “Safe Harbor Rule” of electronic discovery, governs the consequences of a party’s failure to preserve discoverable Electronically Stored Information (ESI). Currently, Rule 37(e) provides:

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

While intended to protect parties who implement timely litigation holds, but who nevertheless may have deleted discoverable ESI in the regular course of business, the rule in its current form has provided little guidance to the courts applying it. This has resulted in inconsistent application across the circuits and varying standards for when sanctions are appropriate under the rule. As a result, in September 2014 the Judicial Conference Committee on Rules of Practice and Procedure unanimously approved an entirely rewritten version of Rule 37(e) several years in the making that will, if approved by the Supreme Court and Congress, unify the approach courts take to sanctioning the loss of ESI. The proposed rule now reads:

Rule 37(e) Failure to Preserve Electronically Stored Information.

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may:

 (1) upon finding prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; or

 (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

 (A) presume that the lost information was unfavorable to the party;

 (B) instruct the jury that it may or must presume the information was unfavorable to the party; or

 (C) dismiss the action or enter a default judgment.

Rather than providing specific details regarding the preservation obligation itself, the proposed rule empowers courts to take remedial measures when a party loses ESI because the party “failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery.” According to the September 2014 Report of the Judicial Conference Committee on Rules of Practice and Procedure, this language is intended to retain the duty to preserve “that has been uniformly established by case law: the duty arises when litigation is reasonably anticipated.” As a result, the proposed rule does not impose strict liability for failure to produce ESI—the rule only applies when a party fails to take “reasonable steps” to preserve the ESI once litigation is reasonably anticipated. Even if the opposing party is prejudiced, as long as “reasonable steps” are taken the rule does not permit sanctions. The remedial measures available to a court are split into two sections.

Rule 37(e)(1) provides that the court, “upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.” This permits a court to take measures regardless of whether the loss of ESI is the party’s fault, and while it preserves broad trial court discretion to take steps to cure prejudice, it strictly limits the scope of the court’s action to measures that will cure the prejudice.

Rule 37(e)(2) resolves the circuit split on when a court may deliver an adverse inference jury instruction for loss of ESI. Under the current rule, some circuits have held that an adverse jury instruction for loss of ESI is justifiable only upon a showing of bad faith by the losing party, whereas the Second Circuit in particular required only a showing of negligence. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2002). The consequence under the Second Circuit’s rule was essentially that if a party was found to have lost ESI not through routine, good-faith operation of an ESI system—essentially a finding of negligence—they could almost automatically be subject to an adverse inference instruction. If the safe harbor was not available, a party was immediately at risk of receiving the full weight of sanctions. The danger of severe sanctions upon a finding of mere negligence resulted in a tendency to over-preserve ESI at significant cost to parties to civil litigation. The proposed rule, however, permits adverse inference instructions, dismissal, or default judgment “only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation.” Notably, this section of the proposed rule does not require actual prejudice to the opposing party—intent alone is sanctionable by adverse instruction.

The proposed changes to Rule 37(e) have the potential to make a real change in the frequency and severity of sanctions for loss of ESI. Whereas current Rule 37(e) was intended as a safe harbor but has rarely been used as such, the new rule authorizes limited court action only when reasonable steps were not taken to preserve ESI and the loss of ESI cannot be cured by additional discovery. As a result, a party that has lost discoverable ESI can always defend itself by arguing: 1) that it took “reasonable steps” to preserve the ESI; and 2) that the loss may still be cured through additional discovery. In addition to these defenses, under Rule 37(e)(1) a party may also argue: 3) that the opposing party has not been prejudiced; and 4) that the requested remedy will not cure the asserted prejudice.

Only one of these possible defenses relates to the conduct of a party before it loses ESI: taking “reasonable steps” to preserve discoverable ESI. While the proposed rule does not define “reasonable steps,” jurisprudence on the duty to preserve generally refuses to apply a per se test to what is reasonable. See Automated Solutions v. Paragon Data Systems, 756 F.3d 506, 516-17 (6th Cir. 2014); Chin v. Port Authority, 685 F.3d 135, 162 (2nd Cir. 2012). The Rules Committee has also suggested that a factor in evaluating the reasonableness of preservation efforts is the proportionality of those efforts—in other words, whether the steps taken to preserve ESI are proportional to the needs of the individual case.

 

Construction Contracts: Do You Know Who You Contracted With?

Posted in Construction Law

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By Jeff Boudreaux

Recently, we have noticed an increase in the number of construction contracts that either identify (1) an incorrect entity or (2) a non-existent entity as a party to the contract. No big deal, right…..maybe not.

It should be easy enough for the persons signing the contract to confirm their respective names. It is not as easy for a downstream contractor or material supplier to confirm the correct legal name of upstream contractors or the owner.

Here are a few real life examples of the potential pitfalls you may find if your contract incorrectly identifies either a signatory or a key third party (typically the Owner):

Example 1: Commercial subcontracts commonly require the general contractor and owner be named as additional insured on the subcontractor’s commercial general liability insurance. If the subcontract does not accurately identify the owner, it could be problematic if and when a claim is made on the policy.

Example 2: If the contract and/or subcontract incorrectly identify the Owner, a potential lien holder may have a hard time properly notifying the Owner as required under the private works act.

Example 3: Enforcement of dispute resolution agreements may also be affected if the identity of parties is unclear. Assume the following facts:

1. “Commercial Developer Baton Rouge, LLC” is incorrectly identified on the contract as “CDBR;”

2. The contract contains standard AIA mandatory arbitration provisions; and

3. The contractor incurs substantial delay damages all caused by the Owner.

It can be a costly uphill battle to proceed against a non-existent entity in arbitration. The authority of the arbitrator is jurisdictionally limited to the agreement of the parties, so if the identity in the contract is incorrect, is there an agreement with the missing entity to arbitrate? If there is, will a judge confirm a default arbitration award against an entity whose legal name does not even appear in the underlying contract?

Example 4: A subcontract incorrectly identifies the legal name of one of the parties? If the name identified in the contract is not the name in which the license is held, the Louisiana Licensing Board for Contractors can and has taken the position that it is a violation of the licensing laws and subjects both parties to the contract to administrative penalties, ranging from fines, license probation, license suspensions, or even an order to cease and desist work on the project. In our situation, the contractor’s name was similar to GC of Louisiana, LLC, but the subcontract GC, LLC (omitting the “of Louisiana”). The Licensing Board sent violation notices to both GC of Louisiana, LLC and the subcontractor.

Here is the point: We understand contractors and subcontractors are reluctant to press owners for technicalities such as the legal name, but the importance of minding the details in the beginning should not be undervalued.

 

 

DHH Implements Recovery Audit Contractor Program

Posted in Health Law, Louisiana In General

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By Deborah J. Juneau

The Louisiana Department of Health and Hospitals (“DHH”) adopted provisions to establish the Recovery Audit Contractor (“RAC”) Program, effective November 20, 2014, as required by the Affordable Care Act. The new RAC program provides yet another mechanism by which DHH, through its contractors, can conduct post-payment audits of claims submitted by providers enrolled in Medicaid. For purposes of the rule, a provider is defined to be any healthcare entity enrolled with DHH as a provider in the Medicaid program. The provisions apply only to Medicaid RACs that begin on or after November 20, 2014, regardless of the dates of the claims reviewed. The provisions do not prohibit or restrict other audit functions that DHH or its contractors may perform.

The RAC program’s scope of review excludes: 1) claims processed or paid within 30 days of implementation of any Medicaid managed care program that relates to the claims; 2) claims processed and paid through a capitated Medicaid managed care program (but does not exclude audits of per member per month payments from DHH to any capitated Medicaid managed care plan utilizing such claims); and 3) medical necessity reviews in with the provider obtained prior authorization for the service.

The RAC may request records from providers but must limit records requests to not more than 1% of the number of claims filed by the provider for the specific service being reviewed in the previous state fiscal year during a 90 day period, but in any event, the request is limited to not more than 200 records. Each specific service identified for review within the requested time period is considered to be a separate and distinct audit. The RAC will review claims within three years of date of the initial payment, with the three year look back period commencing from the beginning date of the audit.

The provider has 45 calendar days from the date of receipt of a records request to comply with a records request, unless there is a mutually agreed extension of time allowed. If the RAC requires the provider to produce records in a non-electronic format, the RAC must make reasonable efforts to reimburse the provider for the reasonable cost of reproducing the records, based on the current federal rate for reproduction costs, but not more than the rate applicable under Louisiana law for public records requests. The cost for records reproduction may be applied by the RAC as a credit against any overpayment.

If the RAC identifies a significant provider error rate in the audit (defined to be 25%), the RAC may request DHH to initiate an additional records request relative to the issue being reviewed. Upon receipt of a request for additional records, the provider may submit written objections to the Secretary of DHH (or designee), but the decision by the Secretary (or designee) is final and not subject to appeal and will not constitute an adverse determination. The RAC must refer claims suspected to be fraudulent to DHH for investigation.

The RAC must send a determination letter to the provider within 60 days of the receipt of all requested materials from the provider. The RAC must provide a detailed written explanation to the provider of any adverse determination (defined to be a decision by the RAC that results in a payment to a provider for a claim or service being reduced either partially or completely.)

A provider has a right to an informal and formal appeal process of any adverse determination made by the RAC, if a written request is made within the deadlines set forth in the rule. The rule also sets forth the timelines in which an informal hearing must be held and the results of the informal hearing must be provided, as well as the deadline to request a formal appeal with the Division of Administrative Law. In conjunction with the appeal process, the provider may present information orally and/or in writing and may present documents. The provider may be represented by counsel for the informal and formal appeals process.

Neither DHH nor the RAC may recoup any overpayments until all informal and formal appeals processes have been completed. A final decision by the Division of Administrative Law marks the conclusion of the formal appeals process. The provider may seek judicial review of the final decision by the Division of Administrative Law.

The rule includes certain penalty provisions that should disincentive the RAC from denying claims without adequate support to do so. For example, if DHH or the Division of Administrative Law hearing officer finds that the RAC determination was unreasonable, frivolous or without merit, the RAC must reimburse the provider for its reasonable costs associated with the appeals process, including attorney’s fees and expenses incurred to appeal the RAC decision. Additionally, if DHH determines that the RAC inappropriately denied a claim, DHH may impose a penalty or sanction against the RAC. DHH considers the claim was inappropriately denied if the RAC’s adverse determination is not substantiated by applicable DHH policy or guidance, the RAC fails to utilize guidance provided by DHH, or the RAC fails to follow programmatic or statutory rules. If more than 25% of the RAC’s adverse determinations are overturned on informal or formal appeal, DHH may impose a monetary penalty of up to 10% of the cost of the claims to be awarded to the providers of the claims inappropriately determined, or a monetary penalty of up to 5% of the RAC’s total collections to DHH.

The RAC program provides DHH with another tool in its arsenal to review claims and potentially recoup monies paid to providers. Providers can expect to begin receiving notices of audits by the RACs in the near future.

 

Calming the Storm Tossed Waters: The Availability of Punitive Damages to the Jones Act Seaman Post McBride

Posted in Admiralty and Maritime

storm

By Michael J. O’Brien

A. Introduction to Punitive Damages

Pecuniary damages are awards designed to restore “material loss which is susceptible of pecuniary valuation.” Michigan Central Railroad. Co. v. Vreeland, 227 U.S. 59, 71, 33 S.Ct. 192, 57, L.Ed. 417 (1913). Punitive or exemplary damages do not compensate for a loss; instead, they are imposed to punish the wrongdoer and “deter by virtue of the gravity of the offense.” [1]  Molzof v. U.S., 502 U.S. 301, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). The availability of punitive damages as an avenue of potential recovery can drastically alter a Jones Act personal injury case.

For example, if punitive damages are “on the table,” one can expect that counsel for the injured seaman will insert a demand for punitive damages into the lawsuit and, thereafter, consistently beat the drum throughout the litigation that punitive damages are warranted. This, in turn, inquires defense counsel to change its evaluation of the case and recommend higher reserves to its clients to cover the potential for an award of punitive damages. The availability of punitive damages can also affect settlement negotiations when counsel for the injured seaman demands a higher settlement amount for even the most basic slip and fall by alleging liability for punitive damages.

The issue of whether punitive damages are available to the Jones Act seaman, was, until recently, a well settled question—they are not available. The calm waters of punitive damages were stirred with the 2009 decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009),where the U.S. Supreme Court firmly established that punitive damages were available to an injured Jones Act seaman for the willful and wanton failure of the ship-owner to pay maintenance and cure.

Since Townsend, the Plaintiffs’ bar has been attempting to expand the availability of punitive damages to an injured seaman’s negligence and unseaworthiness claims. To this end, the Plaintiffs’ bar proclaimed a partial victory on October 2, 2013, when Judge Higginson, of the U.S. Fifth Circuit held that punitive damages were available to seaman as a remedy for the general maritime law claim of unseaworthiness. McBride v. Estis Well Service, 731 F.3d 505 (5th Cir. 2013). However, eleven months later, the Fifth Circuit, sitting en banc, reversed the original panel’s decision and held that punitive damages are not recoverable for either negligence or unseaworthiness. Let us now examine how we have arrived at this point.

B. The High Point—In re Merry Shipping

If the availability of punitive damages to an injured seaman can be imagined as a wave, the peak of that wave would be In re Merry Shipping, Inc., 650 F.2d 622 (5th Cir. Unit B 1981). In Merry Shipping, it was firmly established that punitive damages were recoverable under the General Maritime Law when the shipowner had violated the duty to furnish and maintain a seaworthy vessel. The Merry Shipping Court acknowledged that the shipowner’s duty stemmed from the recognition of “the hazards of marine service that unseaworthiness places on the men who perform it and their helplessness to ward off such perils.” As such, the theory was that punitive damages would serve to deter and punish owners whose reckless acts increased the hazards of marine service. It must also be noted at this juncture that punitive damages were also available at this time for the willful and wanton failure to pay maintenance and cure.

C. The Wave Falls—Miles v. Apex Marine Corp.

Nine years later, the punitive damage wave began to fall with the Fifth Circuit’s opinion in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). The Miles Court noted that in 1920, Congress enacted the Jones Act, 46 U.S.C. § 30104, and the Act extended to seamen the same negligence remedy for damages afforded to railroad workers under the Federal Employers’ Liability Act (“FELA”). FELA only allowed for the recovery of pecuniary damages. Accordingly, the Miles Court reasoned that Jones Act claimants’ remedies were limited to pecuniary losses alone. As discussed above, punitive damages are separate and apart from pecuniary damages. After Miles, punitive damages would be unavailable to the Jones Act seaman in a Jones Act negligence action and an unseaworthiness action. Merry Shipping had been effectively overruled. [2]

D. The Wave Bottoms Out—Guevera v. Maritime Overseas Corp.

The low point of the punitive damage wave was marked by the Fifth Circuit’s decision in Guevera v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995). Guevera was a maintenance and cure case that, for a time, eliminated the availability of punitive damages for the willful and wanton failure to pay maintenance and cure. Citing the reasoning of Miles, the Guevera court held that the punitive damages were not available for failure to pay maintenance and cure, even if willfulness was demonstrated. Guevera, 59 F.36 at 1504. Thus, as of Guevera, punitive damages were simply not an available avenue of recovery for the Jones Act Seaman in an action for either Jones Act negligence, unseaworthiness, or maintenance and cure. Punitive damages had effectively disappeared from maritime law. This was to be the case for the next 14 years.

E. The Wave Rises—Atlantic Sounding v. Townsend

The punitive damage wave began surging upward again with the U.S. Supreme Court’s decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009). The Townsend Court revisited the issue of a seaman’s claim for punitive damages for the willful failure to pay maintenance and cure. In an opinion hailed by injured workers (and their counsel), everywhere, the Townsend Court abrogated Guevera and ruled that a seaman may seek punitive damages associated with a claim for maintenance and cure. In reaching its ultimate decision, the Townsend Court acknowledged that punitive damages had long been available at common law, that the common law tradition of punitive damages extended to claims arising out of maritime law, and that nothing in maritime law undermined the applicability of this general rule in the maintenance and cure context. Furthermore, nothing in the Jones Act eliminated pre-existing remedies, such as punitive damages for maintenance and cure available to seaman.

As is often the case after U.S. Supreme Court decisions, the impact of Townsend differed greatly depending on which side of the “v.” a party found itself. Injured workers read Townsend to either overrule or severely undermine Miles. Employers and ship owners read Townsend to carefully distinguish its facts from Miles, and more importantly, reaffirm that Miles remained “good law.” To be sure, Townsend began to “toss” the once peaceful waters of punitive damages. Smelling blood in the water, counsel for injured workers began routinely adding claims for punitive damages to their Jones Act negligence, unseaworthiness, and maintenance and cure claims. It did not matter if the case was the most basic unwitnessed slip and fall or the most serious case of loss of life and limb—each case came with a punitive damage claim. With the above context in mind, we now turn to McBride which, for a short time, brought punitive damages back to the high point of Merry Shipping.

F. Storm Tossing the Waters — McBride v. Estis Well Service, LLC

i. The Facts

On March 9, 2011, the barge Estis Rig 23 was operating in Bayou Sorrell, a navigable waterway in the State of Louisiana. The Estis 23 was a keyway barge containing a truck mounted drilling rig. There is no way to “sugarcoat” the fact that on March 9, the day of the tragedy, the vessel was in incredibly poor condition. The deck contained numerous holes covered with sheets of plywood. The hull contained several holes that allowed the influx of water causing the barge to list to the port side. The crew inserted rags and pieces of wood into the holes in the hull to slow the sinking. Each morning, when the crew arrived at the barge, they had to pump water out of the barge’s hull to level it before they could start working.

On top of the issues related to the daily sinking of the barge, the truck needed to be attached to the barge by at least 5 cables and the derrick should have been attached to the barge with a minimum of 4 cables. However, the truck was only connected to the barge by a single cable and no cables whatsoever attached the derrick to the barge.

On March 8, the Estis 23’s crew pulled and racked vertically approximately 12,000 feet of pipe weighing approximately 90,000 lbs. Overnight, the barge again flooded and listed to the port side. The racked pipe fell towards the port side of the barge causing the monkeycboard to twist. [3]  The pipe hung outside of the derrick with the twisted monkey board as the only thing preventing the pipe from toppling over.

When the Estis 23 crew returned on March 9 and saw the situation first hand, they conducted a safety meeting and decided that the safest possible method was to use a crane and additional barge to remove the pipe. Specifically, the crane would hold the top of the derrick to prevent it from falling over while the crew moved the pipe onto a second barge. A request was made for a crane and second barge. This request was denied by the home office due to time and cost concerns. Instead, the crew was ordered by the onsite supervisor to straighten the monkey board and pipe manually using ratchets and cables. However, the crew was only able to shift the pipe and monkey board a few inches.

At this point, the crew again requested a crane and additional barge to perform this job. This second request was again denied by Estis’s president and owner. The onsite supervisor instructed his crew to find more cables. The Estis 23’s crew was sent to the nearby Estis Rig 68 to retrieve additional cables and additional man power in the form of Skye Sonnier – an Estis deckhand assigned to Rig 68.

The crew connected the additional cables to the monkey board and pipe. While using the ratchets, the crew heard several loud pops. The derrick and all of the pipes began falling. The crew ran for their lives in an attempt to evacuate the barge. Prior to the arrival of Mr. Sonnier, the Estis 23’s crew had discussed an evacuation plan to be implemented at the first sign of trouble. As the derrick and pipe began falling, the rig 23’s crew implemented the evacuation plan.

Unfortunately, Mr. Sonnier was never advised of the evacuation plan. Sonnier evacuated in the wrong direction. He became trapped between two tanks, and he was struck by the side of the truck. He was pinned between the truck and one of the tanks. Sadly, Mr. Sonnier died while pinned beneath the weight of the truck. His injuries were severe, and they included compressive blunt force injuries of the thorax, multiple rib fractures, punctured lungs due to rib chards, and a ruptured heart.

The facts of this matter are chilling. The accident was entirely preventable. As such, it is easy to see how the McBride case would become the battleground to revisit the prohibition on punitive damages in both Jones Act negligence and unseaworthiness cases.

 ii. Round 1 –  McBride v. Estis Well Service, L.L.C., 872 F. Supp. 2d 511 (W.D. La. 2012)

The McBride Plaintiffs asserted claims for punitive damages due to Estis’s alleged gross, willful, wanton, and/or reckless conduct that allegedly constituted the callous disregard of or indifference to, the safety of the Estis crewmembers. Estis filed a Motion for Summary Judgment to dismiss the punitive damages claims.

Estis claimed that the Jones Act only permitted recovery of pecuniary losses whether for personal injury or wrongful death. Since punitive damages are not pecuniary in nature, Estis argued that punitive damages could not be recovered on Jones Act claims. Further, under the reasoning of Miles v. Apex Marine Corp, the McBride Plaintiffs could not recover punitive damages because their unseaworthiness claims overlap their Jones Act claims. Hence, the punitive damage claims should be dismissed.

In opposition, the McBride Plaintiffs argued that Townsend left open the question whether punitive damages were available under the Jones Act. The Plaintiffs also contended that the U.S. Supreme Court’s ruling in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) suggested that they could recover punitive damages via their General Maritime Law claims. Finally, they contended that the Supreme Court’s ruling in Townsend, which abrogated Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995), reinstated the holding of Merry Shipping as the controlling precedent in the U.S. Fifth Circuit. As discussed above Merry Shipping stood for the proposition that punitive damages were in fact available to a Jones Act Seaman.

On May 16, 2012, Magistrate Judge Hanna of the United States District Court for the Western District of Louisiana – Lafayette Division – issued his memorandum ruling addressing whether punitive damages were available to a seaman under the Jones Act and/or General Maritime Law who was killed or injured in Louisiana territorial waters after Townsend. In his 22 page opinion, Magistrate Judge Hanna ultimately reasoned that nothing in Townsend made punitive damages available to the McBride Plaintiffs. He found that the reasoning of Miles was to promote uniformity between the statutes and the General Maritime Law. DOHSA did not allow for non-pecuniary damages. The Jones Act did not allow for non-pecuniary damages based on the jurisprudential interpretation of FELA. In promoting uniformity, the Supreme Court decided that the same rule would apply to the General Maritime Law that was applicable to a wrongful death/survival action under the Jones Act, and nothing in the holding of Townsend altered that result.

The McBride Plaintiffs moved to certify the Judgment for an immediate interlocutory appeal. Judge Hanna granted this motion as the issues presented were “the subject of national debate with no clear consensus.”

iii. Round 2 – McBride v. Estis Well Service, LLC 731 F.3d 505 (5th Cir. 2013)

The Fifth Circuit accepted Plaintiffs’ interlocutory appeal. Briefs were filed, and oral argument was heard. A decision was published on October 2, 2013. Judge Higginson, writing for the three person panel, addressed the “narrow issue” of whether a seaman may recover punitive damages for his employer’s willful and wanton breach of the General Maritime Law duty to provide a seaworthy vessel.

In reversing Judge Hanna, the three judge panel concluded that punitive damages indeed remained available to seaman as a remedy for the General Maritime Law claim of unseaworthiness. Judge Higginson relied heavily on Townsend and reaffirmed the Fifth Circuit’s holding in Merry Shipping.

Recognizing the impact of Townsend, Judge Higginson advised that momentum in the direction towards the disappearance of punitive damages from maritime law had been “sea-tossed” with the abrogation of Guevara and the restored availability of punitive damages for maintenance and cure claims under General Maritime Law. Effectively, the panel claimed that Townsend established a straight-forward rule: if a General Maritime Law cause of action and remedy were established before the passage of the Jones Act, and the Jones Act did not address that cause of action or remedy, then that remedy remains available under the cause of action unless and until Congress intercedes. It cannot be disputed that the cause of action for unseaworthiness and remedy of punitive damages were both established long before the passage of the Jones Act. Further, the Jones Act did not address either unseaworthiness or its remedies. Thus, using Townsend’s “straight forward rule,” punitive damages are available for unseaworthiness. The Court itself acknowledged that it was “less clear” whether punitive damages were awarded for unseaworthiness prior to the passage of the Jones Act. Yet, the point is essentially moot as the panel held that its decision would be unchanged.

iv. Round 3 – McBride v. Estis Well Service, LLC 768 F.3d 382 (5th Cir. 2014)

Estis filed a Petition for Rehearing En Banc. On February 24, 2014, the Fifth Circuit granted the requested en banc rehearing based on the majority vote of the active judges. Keeping in mind that the granting of an en banc rehearing is appropriate only in “extraordinary” circumstances, it is obvious that the majority of the active Fifth Circuit judges felt the issue of punitive damages in maritime law was an issue of great importance. In addition to the requisite briefs of the parties, industry groups, including the Offshore Marine Service Association, the American Waterways Operations and the International Association of Drilling Contractors, filed amicus briefs to reverse the decision of the three judge panel.

Oral argument was conducted on May 14, 2014, and the Court issued its opinion on September 25, 2014. In a close 9-6 vote, the Fifth Circuit held that seamen cannot recover punitive damages for unseaworthiness. The reasoning of the majority opinion was simple yet effective. Writing for the majority, Judge Davis confirmed that Townsend did not alter the holding in Miles. Indeed, the majority opinion specifically noted that the Supreme Court in Townsend reaffirmed the holding in Miles. Miles, which “remains sound,” limited Jones Act seamen to pecuniary damages in negligence and unseaworthiness claims. Punitive damages are non-pecuniary; as such, they are not available. Thus, at present, the only punitive damages available to a seaman are for the willful and wanton non-payment of maintenance and cure.

v.  Final Round – McBride v. Estis Well Service, LLC

The “final round” in any lawsuit is whether the case will be heard and ultimately decided by the United States Supreme Court. The “word on the street” is that the McBride Plaintiffs will petition the U.S. Supreme Court for a Writ of Certiorari. Thus, the bell signaling the final round in McBride is about to be rung.

CONCLUSION

The wave of punitive damages has risen and fallen over the years. Since the peak of Merry Shipping, the availability of punitive damages to the Jones Act seaman had fallen so far that punitive damages were simply not available to the injured seaman after Guavera. Townsend signaled a surge in the wave. Yet, the wave has now crested, at least in the Fifth Circuit, with the decision in McBride. It will be interesting to monitor the other circuits and see if they will fall in line with the McBride decision. Only time, and perhaps a few crafty arguments advanced by counsel for injured seamen, will determine whether the punitive damage wave will rise again.

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[1]  There is no discernable difference between punitive and exemplary damages.

[2]  Anderson v. Texaco, Inc., 797 F. Supp. 531319 (E.D. La. 1993) (Miles compels the conclusion that a plaintiff who is statutorily barred from receiving a punitive award cannot recover punitive damages by couching his claim in the judge-made general maritime law of negligence and unseaworthiness.)

[3]  A monkey board is the platform on which the derrick man works when tripping pipe. It is mounted above the drill platform in the derrick.

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