The United States Supreme Court recently held that a single standard of causation now applies when assessing the negligence of an employer and employee under FELA. Norfolk Southern R. Co. v. Timothy Sorrell, 127 S.Ct. 799, 166 L.Ed. 2d 638(1/10/07) (U.S. Reporter citation unavailable).  Because the Jones Act is modeled closely upon FELA’s statutory language, federal courts tend to apply the same analysis of negligence issues arising under both statutes. It appears that the Sorrell decision supports the conclusion of earlier maritime cases indicating that a Jones Act employer is held to the same standard of causation in a negligence analysis as his seaman-employee

Continue Reading Jones Act and FELA Employers Enjoy Same Negligence Standard as Employees

The U.S. Fifth Circuit Court of Appeals has unequivocally held that a shipowner-employer may pursue a claim for reimbursement of costs for damage to property against its negligent seaman-employee. Withhart v. Otto Candies, 431 F.3d 840 (5th Cir. 2005). The seaman-employee in Witthart was a mate, or relief captain, who allegedly left the wheel house to attend to personal business while in command of the vessel. During his absence, the vessel, navigating through congested waters with no captain at the helm, collided with and damaged another vessel.

Continue Reading Jones Act Employers Have Recourse Against Negligent Employees

In New Investment Properties, L.L.C. v. ABC Company, et al, 2007 W.L. 4305464 (4TH Cir. 2007), the Court of Appeals addressed the range of personal jurisdiction. Like that of a shepherd’s crook, the court exercised personal jurisdiction over a non-resident defendant. Plaintiffs, New Investment Properties, L.LC. and Creek Apartments Team, L.L.C. (“Creek Apartments) are both Louisiana corporations and the owners of two apartment complexes in New Orleans. Defendant, R. P. Beckendorf, is a California corporation with its principal place of business in Los Angeles. It is an independent insurance agency which obtained flood and wind policies for an apartment complex. The policies were delivered to the Champion Group, Inc., which is a California corporation with its principal place of business in Los Angeles.   The two managers of the plaintiffs are both residents of California, who are also managers of the Champion Group in California.

Continue Reading Where You May Be Doing Business – The Personal Jurisdiction Snare

The issue of recovery of non-pecuniary damages [1] by a Jones Act seaman is one that often confronts both the seaman’s employer and non-employer third-parties from whom damages are sought. No case sets forth a more succinct resolution of this issue than Scarborough v. ClemcoInd., 391 F.3d 660 (5th Cir. 2004). Under the Fifth Circuit’s holding in Scarborough and its progeny, both Jones Act employers and non-employer third-parties sued by either a seaman or his survivors are able to rest easy knowing that they will not have to pay non-pecuniary damages – at least for now considering that no case has given negative treatment to the Scarborough decision.

Continue Reading Recovery of Non-Pecuniary Damages Prohibited Under Jones Act

The 16th Judicial District Court granted a well operator’s motion for summary judgment and exception of no right of action and dismissed all of a property owner’s claims in a pending legacy oilfield suit. The Louisiana Third Circuit Court of Appeal upheld the trial court’s decision in LeJeune Brothers, Inc. v. Goodrich Petroleum Co., L.L.C., et al., 2006-1557 (La.App. 3 Cir. 11/28/07), __ So. 2d __, 2007 WL 4178946, rehearing denied (1/9/2008).

LeJeune Brothers, Inc. (“LeJeune”), the property owner, claimed that the Goodrich Petroleum Company, L.L.C. (“Goodrich”), a company whose predecessor had operated an oil and gas well on the property at issue, was liable to LeJeune for damages arising in tort and in contract, punitive damages, as well as damages for claims arising under the Mineral Code. Goodrich’s predecessor had operated pursuant to a mineral lease that had been executed with LeJeune’s predecessor in interest. LeJeune claimed that it was only after the purchase of the property in 2000 that it discovered that the property was contaminated with waste resulting from oilfield exploration and production activities and LeJeune maintained that it had no knowledge that the property was contaminated prior to the purchase of the property.

Continue Reading Louisiana’s Third Circuit Court of Appeals Upholds District Court’s Dismissal of Legacy Oil Field Plaintiff’s Contract and Tort Claims In LeJeune Brothers, Inc. v. Goodrich Petroleum Co., L.L.C., et al.

The issue of the enforceability of an arbitration clause in a service contract was recently addressed in Wright v. 3P Delivery, L.L.C., 2007 WL 3171260 (La. App. 3d Cir. 2007). In this action, Plaintiff Chester Wright and Defendant 3P Delivery, L.L.C. entered into the contract entitled “Driver Service Agreement.” The contract called for the Plaintiff to “provide pick up and delivery service,” to “provide loading and unloading of … shipments,” and to “handle, load, unload, and transport shipments… and equipment.” The contract also contained an arbitration clause. Plaintiff filed suit claiming breach of contract. In response thereto, the Defendant filed a Motion to Compel Arbitration and Stay Litigation.

Continue Reading Arbitration Not Applicable to Contract of Labor

On January 22, 2008, in Allen v. Administrative Review Bd., ____ F.3d ____, 2008 WL 171588 (5th Cir. 2008), the United States Court of Appeals for the Fifth Circuit (the federal appellate court circuit that includes Louisiana, Mississippi, and Texas) issued its first ruling addressing the employee whistleblower protections provided by the Sarbanes-Oxley Act (“SOX”). In the Allen ruling, the Fifth Circuit interpreted the scope of “protected activity” under SOX narrowly. Hopefully, this trend will continue and this new whistleblower protection for employees of publicly-traded companies will not be unreasonably broadened by the courts.

Continue Reading Fifth Circuit Issues First Opinion Regarding A Sarbanes-Oxley Whistleblower Complaint

The European Commission recently released a preliminary package of broad climate change policies that would affect industry, energy generation and transportation in the European Union. The goals of the climate change policies are to: (1) to reduce greenhouse gas emissions by twenty percent (20%) below 1990 levels by the year 2020; (2) to increase the proportion of power generated by renewable resources to twenty percent (20%) of total energy consumption; and (3) to institute a mandate that ten percent (10%) of the fuel consumed by the European vehicles to be from biofuel sources.

The proposed measures include:

Continue Reading European Union to Cut Greenhouse Gas Emissions by Twenty Percent by 2020: European Commission Issues Climate Change Policy Package

On September 26, 2007, the Louisiana Second Circuit Court of Appeal upheld the judgment of the First Judicial District Court in Caddo Parish in finding that the noncompetition and nonsolicitation clauses in a contract between a urology clinic and a professional medical corporation (“PMC”) were enforceable as to the physician who had formed the PMC. Regional Urology, L.L.C., et al v. David T. Price, M.D. and David T. Price, M.D., A Professional Medical Corporation, 42-789 (La.App. 2ndrehearing denied 10/18/07.  Cir. 9/26/07), 966 So.2d 1087,

The clauses at issue were part of an independent contractor agreement between David Price, M.D., A Professional Medical Corporation (PMC) and Regional Urology, L.L.C. (Regional Urology). Dr. Price was not a named party to the contract in his individual capacity. The contract prevented competition and solicitation by David Price, M.D., PMC for a period of 2 years in Caddo and Bossier Parishes. In addition, the contract provided that it would “apply to any physician who is a Member, any corporation which is Member or any physician’s L.L.C. which is a Member of Regional Urology, L.L.C.”

Continue Reading Physician Must Comply With Terms of Non-Competition Agreement

On December 4, 2007, Phase III of the Stark Law’s regulations became effective. They include some significant substantive changes, one of which is a change to the professional courtesy exception. This change is likely to have a significant effect on many designated health service (“DHS”) providers, as those entities are defined by the Stark Law. DHS providers that have a professional courtesy policy would be well-served to review it and take appropriate action in light of the new regulations.

Continue Reading Professional Courtesy Exception under Stark III: Significant Changes