Billingsley v. Alberici Constructors, Inc. et al

Filing 42

MEMORANDUM OPINION & ORDER granting 29 Motion for Summary Judgment. Signed by Senior Judge Thomas B. Russell on 3/24/2014. See order for specifics. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:13-CV-00084-TBR
WESLEY BILLINGSLEY,
as personal representative and next of kin of
ROBERT R. BILLINGSLEY, deceased

Plaintiff

v.
ALBERICI CONSTRUCTORS, INC., et al.

Defendants

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendants Alberici Constructors, Inc.
(Alberici); URS Corporation (URS); URS Energy & Construction, Inc. (URS E&C);
and Washington Group/Alberici Joint Venture’s (Washington Group) Motion for
Summary Judgment, (Docket No. 29), which, with leave of Court, has been joined in by
Defendant United States, (Docket Nos. 36; 39).

Plaintiff Wesley Billingsley, as

personal representative and next of kin of Robert R. Billingsley, deceased, has
responded, (Docket No. 32), and Defendants Alberici, URS, URS E&C, and
Washington Group have replied, (Docket No. 40).

This matter now is ripe for

adjudication.
BACKGROUND
The essential facts pertinent to Defendants’ instant Motion are largely
undisputed.

At the time of his death, Plaintiff’s decedent, Robert R. Billingsley

(Billingsley), was working at the Olmsted Dam Project on the Ohio River when he fell
and was crushed between two barges. Billingsley was employed by Washington Group
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as a deckhand aboard the M/V LIPSCOMB, a tugboat owned by the United States. The
United States also owned the barges with which Billingsley was working at the time of
his death. Billingsley was unmarried and had no children or other dependents. Plaintiff
Wesley Billingsley is Billingsley’s father but was not dependent on Billingsley at the
time of Billingsley’s death.
Plaintiff brought this survival and wrongful death action on May 31, 2013,
against a number of entities believed to be Billingsley’s employer at the time of his
death. Plaintiff alleges that Billingsley was a seaman for purposes of the Jones Act and
seeks damages under both that Act and the general maritime law. Plaintiff alleges that
Billingsley’s death was caused by the Defendants’ negligence as well as the
unseaworthiness of the barge from which Billingsley fell. Plaintiff seeks the following
damages: (1) Billingsley’s predeath physical and mental pain and suffering, (2) the
pecuniary value of Billingsley’s estate, (3) “loss of the services, assistance, aid, society,
companionship, familial relationship, and the love and affection of and/or from
[Billingsley],” and (4) funeral and burial expenses. (Docket No. 1, at 6.)
STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). “[N]ot every issue of fact or conflicting inference presents a genuine
issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.
1989). The test is whether the party bearing the burden of proof has presented a jury
question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.
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1996). The plaintiff must present more than a mere scintilla of evidence in support of
his position; he must present evidence on which the trier of fact could reasonably find
for him. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). “[T]he
mere existence of a colorable factual dispute will not defeat a properly supported
motion for summary judgment. A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Monette v. Elec.
Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by
Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012). In determining
whether summary judgment is appropriate, a court must resolve all ambiguities and
draw all reasonable inferences against the moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Still, “[a] party asserting that a
fact cannot be or is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . or showing that the materials cited do not
establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).
DISCUSSION
As an initial matter, Plaintiff concedes that Defendants Alberici, URS, and URS
E&C were not Billingsley’s employer and may properly be dismissed from this action.
(Docket No. 32, at 3-4.) As such, the Court will dismiss Plaintiff’s claims against these
Defendants and address its discussion here to the remaining Defendants, Washington
Group and the United States.
Washington Group, joined by the United States, presently moves for summary
judgment limiting the scope of Plaintiff’s damages to Billingsley’s predeath pain and
suffering. In a related argument, Washington Group insists that Plaintiff is barred from
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asserting a wrongful death claim here because Plaintiff was not Billingsley’s dependent
at the time of Billingsley’s death.

Plaintiff’s claims can best be addressed by

delineating the several causes of action asserted. The Court reads Plaintiff’s Complaint
and Response as bringing this action based on two theories: (1) negligence, under both
the Jones Act and the general maritime law; and (2) unseaworthiness, under the general
maritime law. Accordingly, the Court will consider in turn each of Washington Group’s
arguments for summary judgment as they relate to these claims.
I.
Historically, the general maritime law once followed the common law rule that
tort causes of action died with the injured person; thus, an injured sailor could bring an
action for unseaworthiness or negligence, but his survivors had no remedy. See The
Harrisburg, 119 U.S. 199 (1886).

In 1920, Congress partially overruled The

Harrisburg through the enactment of the Death on the High Seas Act, 46 U.S.C.
§§ 30301–30308 (formerly codified at 46 U.S.C. app. §§ 761-768), which provided a
wrongful death remedy for those killed on the high seas, and the Jones Act, 46 U.S.C.
§ 30104 (formerly codified at 46 U.S.C. app. § 688), which provided a wrongful death
remedy for the death of a seaman.
The United States Supreme Court eventually overruled The Harrisburg in
Moragne v. States Marine Lines, Inc., holding that an action for wrongful death is
available under the general maritime law “for death caused by violation of maritime
duties.” 398 U.S. 375, 409 (1970). Moragne involved a longshoreman killed while
working aboard a vessel in navigable waters off the coast of Florida. The plaintiff, who
was the decedent’s widow, brought suit claiming damages based on theories of
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unseaworthiness and negligence. The Court permitted the plaintiff to proceed on an
unseaworthiness theory, thereby recognizing a wrongful death remedy under the general
maritime law for deaths occurring within state territorial waters. The Supreme Court
since has extended the general maritime action for wrongful death recognized in
Moragne to encompass negligence claims for the death of a maritime worker. Norfolk
Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 820 (2001).
In Miles v. Apex Marine Corp., the Supreme Court addressed the type of
damages recoverable under a general maritime law wrongful death claim. 498 U.S. 19
(1990). Miles involved the death of a Jones Act seaman aboard a vessel docked in state
territorial waters. The seaman’s mother and administratrix of his estate brought a
negligence action under the Jones Act and an unseaworthiness action under the general
maritime law. She sought damages for, among other things, loss of society resulting
from the death of her son. Id. at 21-22. Noting that the Jones Act limited recovery to
pecuniary losses, the Miles Court held that the plaintiff could not recover for loss of
society in a Jones Act wrongful death action. Id. at 32-33.
Plaintiff concedes in his Response that his claims for loss of society are not
available under a Jones Act negligence claim. (Docket No. 32, at 12.) Accordingly, the
Court is satisifed that he cannot recover for loss of society on his negligence theory.
II.
Thus, the issue that remains is whether Plaintiff can recover nonpecuniary
damages under this unseaworthiness claim. Miles, dealing with a scenario remarkably
analogous to the one here, answered this question in the negative. As noted above, the

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seaman’s mother in Miles brought a negligence action under the Jones Act and an
unseaworthiness action under the general maritime law. The Court in Miles expressly
concluded that nonpecuniary damages were unavailable under a general maritime law
unseaworthiness theory:
The general maritime law claim here alleged that [the decedent]
had been killed as a result of the unseaworthiness of the vessel. It
would be inconsistent with our place in the constitutional scheme
were we to sanction more expansive remedies in a judicially
created cause of action in which liability is without fault than
Congress has allowed in cases of death resulting from negligence.
We must conclude that there is no recovery for loss of society in a
general maritime action for the wrongful death of a Jones Act
seaman.
Miles, 498 U.S. at 32-33.
The Sixth Circuit, in an en banc decision applying Miles, reached a similar
conclusion in Szymanski v. Columbia Transportation Co., 154 F.3d 591, 595-597 (6th
Cir. 1998) (en banc). In Szymanski, the court held that damages not compensable under
the Jones Act were likewise not compensable under a theory of unseaworthiness. After
noting that claims brought under the Jones Act and claims of unseaworthiness brought
under the general maritime law are distinct causes of actions, the court explained:
However, it is also necessary to consider the nature of the injuries
for which a plaintiff may seek a remedy under the two causes of
action. We conclude that, despite their other differences, the two
causes of action are uniform in the injuries they reach. Where an
injury is not remediable under the Jones Act . . . neither can the
doctrine of unseaworthiness offer redress.

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Id. at 595 (emphasis in original). The en banc court went on to conclude:
A seaman’s claim under either the Jones Act or the
unseaworthiness doctrine is fundamentally a single cause of action,
and remedies under one must be congruent with remedies under
the other. If no damages are permitted under the Jones Act, then an
unseaworthiness claim cannot supply them either.
Id. at 596.
Plaintiff relies primarily on Atlantic Sounding Co. v. Townsend, 557 U.S. 404
(2009), to argue that loss of society and related nonpecuniary damages remain available
in actions brought under the general maritime law.

Plaintiff misreads Atlantic

Sounding. In that case, the Supreme Court considered whether an injured seaman could
recover punitive damages for his employer’s willful failure to pay maintenance and
cure. The Court concluded that the plaintiff could recover punitive damages because
nothing in either Miles or the Jones Act prohibited such damages. Id. at 407. In
distinguishing Miles, the Court noted: “Miles did not address either maintenance and
cure actions in general or the availability of punitive damages for such actions. The
decision instead grapples with the entirely different question whether general maritime
law should provide a cause of action for wrongful death based on unseaworthiness.” Id.
at 419. Unlike wrongful death actions, a general maritime law action for maintenance
and cure and the remedy of punitive damages were traditionally available and not
addressed by the Jones Act or other congressional action. In discussing this point, the
Court explained:
Congress had chosen to limit . . . the damages available for
wrongful-death actions under the Jones Act and DOHSA, such
that damages were not statutorily available for loss of society or
lost future earnings. The Court thus concluded that Congress’
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judgment must control the availability of remedies for wrongfuldeath actions brought under general maritime law[.]
The reasoning of Miles remains sound.
Id. at 419-20 (citations omitted).
Since Atlantic Sounding, a number of courts have continued to find that loss of
society damages are not recoverable for wrongful death under the general maritime law.
See, e.g., Doyle v. Graske, 579 F.3d 898, 906-08 (8th Cir. 2009); Hackensmith v. Port
City S.S. Holding Co., 938 F. Supp. 2d 824, 829 (E.D. Wis. 2013); In re Int’l Marine,
L.L.C., 2013 WL 3293677, at *9 (E.D. La. June 28, 2013).
Therefore, based on this Court’s reading of Miles and Atlantic Sounding, and in
view of the binding precedent of this circuit (which the Court does not read as having
been overruled by Atlantic Sounding), Plaintiff cannot recover the nonpecuniary
damages he seeks based on a theory of unseaworthiness.
III.
Washington Group next argues that Plaintiff is barred from asserting a wrongful
death claim here because he was not Billingsley’s dependent at the time of Billingsley’s
death. To this end, Washington Group urges that any recovery should be limited to a
survival action for Billingsley’s predeath pain and suffering. In support of its position,
Washington Group points to the Northern District of Ohio’s decision in In re Cambria
S.S. Co., 353 F. Supp. 691 (N.D. Ohio 1973), aff’d sub nom. Complaint of Cambria S.S.
Co., 505 F.2d 517 (6th Cir. 1974). Plaintiff acknowledges that he was not dependent
upon Billingsley. Plaintiff argues, however, that In re Cambria merely stands for the
proposition that a nondependent relative cannot recover for loss of prospective
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inheritance in a Moragne wrongful death action and does not prohibit the recovery of
nonpecuniary damages. (See Docket No. 32, at 12.)
The Second Circuit, quoting the Fifth Circuit, succinctly outlined the distinction
between survival actions and wrongful death actions as follows:
In a survival action, the estate or successors of a deceased person
are allowed to prosecute a claim for personal injury that the
deceased himself would have had but for his death. In a wrongful
death action, the victim’s dependents, not the victim, are allowed
to recover for the harms they personally suffered as a result of the
death, independent of any action the decedent may have had for
his own personal injuries.
Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1093 (2d Cir. 1993) (quoting
Miles v. Melrose, 882 F.2d 976, 985 (5th Cir. 1989)).
Upon reviewing the scant case law that appears to have addressed this issue, the
Court is satisfied that Plaintiff cannot maintain his instant wrongful death action. In a
well-reasoned and detailed opinion, the Northern District of Ohio concluded that “there
can be no recovery under a Moragne-type claim for non-dependent relatives.” In re
Cambria, 353 F. Supp. at 696. Noting (1) that the federal wrongful death statutes (as
well as the vast majority of state wrongful death statutes) exclude nondependent
relatives and (2) that maritime wrongful death actions are limited to pecuniary damages,
the court reasoned:
[R]ecovery [by nondependent relatives] would contravene the
long and well-established congressional policy in this area and
would be inconsistent with the expression represented in the vast
majority of state wrongful-death statutes, which prohibit such a
recovery. In addition, any recovery by non-dependent relatives
is, by its very nature, speculative. Such a recovery would of
necessity be based upon a prediction of the future intentions and
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family relationships of the deceased. . . . At the very best, such
predictions involve speculative prognostications of a much more
unreliable and chance character than those required in
dependency claims, where there will usually be an established
need of support or a legal obligation.
We see the various federal and state wrongful death statutes
as expressing a societal decision that the interest of nondependent relatives is not so substantial as to require protection.
The non-dependent relative is, by definition, independent of any
contributions from the deceased.
Id. at 696-97. This reasoning finds support in more recent decisions by the Sixth
Circuit. See, e.g., Anderson v. Whittaker Corp., 894 F.2d 804, 811 (6th Cir. 1990)
(holding that a nondependent parent could not maintain claim for nonpecuniary
damages such as loss of society).
Plaintiff offers little to refute the reasoning in In re Cambria. Moreover, as
discussed supra Parts I & II, Plaintiff is not entitled to recover the nonpecuniary
damages he seeks relative to Billingsley’s death. As such, the Court finds that as a
nondependent parent of the decedent, Plaintiff is not entitled to maintain a wrongful
death action in this instance and, therefore, cannot recover for the pecuniary value of
Billingsley’s estate.
IV.
Plaintiff also has asserted a claim for Billingsley’s predeath pain and suffering.
This measure of damages, referred to as “survival damages,” is available under the
general maritime law. Anderson v. Whittaker Corp., 692 F. Supp. 764, 773 (W.D. Mich.
1988) (citing Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893 (5th
Cir. 1984)), aff’d in relevant part by 894 F.2d 804 (6th Cir. 1990). “Survival damages

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may be sued for by any representative of a decedent, without reference to relationship,
or dependence upon the deceased.” Id. (citing Evich v. Connelly, 759 F.2d 1432, 1434
(9th Cir. 1985)). Defendants do not dispute that Plaintiff is entitled to seek survival
damages for Billingsley’s predeath pain and suffering.
It is unclear, however, whether Plaintiff is entitled to seek damages in the form
or funeral and burial expenses. Although Defendants argue that Plaintiff should be
limited to the above-mentioned survival damages, the parties have not briefed the issue
whether funeral expenses are recoverable here. As such, the Court makes no ruling at
this time whether Plaintiff is entitled to such damages.
CONCLUSION
Therefore, having considered the parties respective arguments and being
otherwise sufficiently advised, for the foregoing reasons;
IT IS HEREBY ORDERED that Defendants Alberici Constructors, Inc.; URS
Corporation; URS Energy & Construction, Inc.; and Washington Group/Alberici Joint
Venture’s Motion for Summary Judgment, (Docket No. 29), which has been joined in by
Defendant United States, (Docket Nos. 36), is GRANTED as follows:
(1) Summary judgment is entered in favor of Defendants Alberici
Constructors, Inc.; URS Corporation; and URS Energy &
Construction, Inc., as to each of Plaintiff’s claims asserted against
them, and these Defendants are hereby dismissed from this action;
(2) Summary judgment is entered in favor of Defendant Washington
Group/Alberici Joint Venture and Defendant United States as to
Plaintiff’s wrongful death claim for the pecuniary value of
Billingsley’s estate and for loss of the services, assistance, aid,

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society, companionship, familial relationship, and the love and
affection of and/or from Billingsley.
IT IS SO ORDERED.
Date:

cc:

March 24, 2014

Counsel

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