Stelly v. Abdon Callais Offshore, L.L.C.

Filing 29

ORDER & REASONS re dft's 22 Motion for Partial Summary Judgment: for the reasons stated, IT IS HEREBY ORDERED that Defendant's Motion for Partial Summary Judgment is DENIED. Signed by Judge Nannette Jolivette Brown on 6/21/2013. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TOMMY STELLY

CIVIL ACTION

VERSUS

NO. 12-2498

ABDON CALLAIS OFFSHORE, L.L.C.

SECTION: “G”(1)

ORDER AND REASONS
Before the Court is Defendant Abdon Callais Offshore, LLC's ("Defendant") Motion for
Partial Summary Judgment,1 wherein it seeks the dismissal of Plaintiff Tommy Stelly's ("Plaintiff")
claims arising from an alleged incident on February 2, 2012, arguing that he did not qualify as a
Jones Act seaman at that time. After considering the complaint, the pending motion, the
memorandum in support, the opposition, the reply, the record, and the applicable law, the Court will
deny the pending motion.
I. Background
A. Factual Background
Plaintiff alleges that on or about May 3, 2009, he was employed by Defendant as a Jones Act
Seaman aboard the M/V O.P. CALLAIS, which Defendant owned and operated at all pertinent
times.2 On that date, Plaintiff alleges he "experienced an accident which resulted in serious painful
injuries to his left arm."3 Plaintiff contends that the incident was caused by the negligence of
Defendant and the unseaworthiness of the vessel, and as a result he "was rendered unfit for duty and

1

Rec. Doc. 22.

2

Rec. Doc. 1 at ¶¶ 3-4.

3

Id. at ¶ 5.

presently remains unfit and incapable of returning to duty as a seaman."4 Plaintiff also alleges a
second accident that occurred on February 2, 2012. Plaintiff claims that he "sustained an injury to
his neck and back, and aggravation of his arm injury," while "working as a Jones Act seaman
assigned to the M/V HAROLD J. CALLAIS."5 Plaintiff claims negligence and unseaworthiness was
the proximate cause of this incident as well.6
B. Procedural Background
Plaintiff filed suit in this matter on October 12, 2012, invoking this Court's jurisdiction under
the Jones Act, General Maritime Law, and diversity.7 Defendant filed the pending motion for
summary judgment on April 29, 2013.8 On May 14, 2013, Plaintiff filed an opposition.9 On May 16,
2013, with leave of court, Defendant filed a reply.10
II. Parties' Arguments
A. Defendant's Memorandum in Support
In support of the pending motion, Defendant contends that after the May 3, 2009 incident,
Plaintiff received cure from Defendant, and began to work in its land-based warehouse until he
received surgery necessitated by the alleged accident.11 After the surgery, Plaintiff continued to work

4

Id. at ¶¶ 6-9.

5

Id. at ¶ 12.

6

Id. at ¶¶ 13-14.

7

Id. at ¶ 2.

8

Rec. Doc. 22.

9

Rec. Doc. 24.

10

Rec. Doc. 27.

11

Rec. Doc. 22-1 at p. 2 (citing Deposition of Plaintiff, Rec. Doc. 22-3 at pp. 47-48).

2

at the warehouse for three to six months.12 Subsequently, Plaintiff was asked by Defendant to "go
to [Defendant's shipyard] in Leeville where he would work supervising crews on vessels getting
ready for inspections."13 After working at the Leeville facility for about a year, Plaintiff was sent to
a newly acquired facility of Defendant, which Plaintiff calls "Durlage," but is also called "Safe
Harbor."14 Defendant contends that this was a facility where Defendant "could keep its vessels which
had been 'cold stacked' or removed from active service."15
While at "Durlage," Plaintiff's duties "were to keep the boats running and keep them clean
and make sure that the boats stayed tied up and weren't taking on water."16 Plaintiff worked this job
for about a year before the alleged February 2, 2012 incident. Defendant also notes that after
Plaintiff returned to work following his surgery, and before he began working at Leeville or
"Durlage," Plaintiff applied for, but could not obtain, a Transportation Worker Identification Card
(TWIC) and a TWIC was necessary to sail as a seaman on Defendant's vessels.17
Defendant argues that "Durlage" was acquired by Defendant for its vessels that were not
actively being chartered.18 Defendant contends that Plaintiff's duties at "Durlage" or "Safe Harbor"
were "to manage 'Safe Harbor', see that no outside visitors entered the yard without permission, and
oversee the cold stacked vessels making sure they stayed moored safely, were kept clean and that
12

Id. (citing Rec. Doc. 22-3 at pp. 47-78).

13

Id. (citing Rec. Doc. 22-3 at pp. 50-51).

14

Id.

15

Id. (citing Rec. Doc. 22-3 at pp. 52-54).

16

Id. (citing Rec. Doc. 22-3 at pp. 56-57).

17

Id. at pp. 2-3 (citing Rec. Doc. 22-3 at pp. 88-91).

18
Id. at p. 3 (citing Deposition of Roger D. Arceneaux, Rec. Doc. 22-4 at p.6) Arceneaux is a "DP 2 supervisor"
for Defendant. See Rec. Doc. 22-4 at p. 6:19-20.

3

their generators were run one day per week."19 Defendant notes that while Plaintiff stayed on the
M/V HAROLD J CALLAIS, the vessel was hooked up to shore power and the certificates of
inspection from the United States Coast Guard from that vessel and the EARLY BIRD were not
active has had been turned into the Coast Guard.20
Defendant alleges that on February 2, 2012, Roger Arceneaux, a supervisor for Defendant,
instructed Plaintiff to take some pictures of the M/V EARLY BIRD. Later that day, an employee
of Defendant, Daniel Lorraine, encountered Plaintiff, who said he fell down the starboard stairway
of the EARLY BIRD, and Lorraine arranged for Plaintiff to receive medical treatment.21 Thereafter,
Plaintiff never returned to work.22
With regard to the February 2, 2012 incident, Defendant contends that Defendant was not
a seaman as defined by the United States Supreme Court in Chandris v. Latsis.23 Defendant argues
that Plaintiff does not meet the first requirement set out in Chandris, because he was not working
at sea.24 Despite sleeping on a vessel, Defendant avers that Plaintiff was not exposed to the "perils
of the sea," but was merely "watching over a group of 'cold stacked' vessels that were not
working."25

19

Rec. Doc. 22-1 at p. 3 (citing Rec. Doc. 22-4 at p. 12).

20

Id. (citing Rec. Doc. 22-4 at p. 17).

21

Id.

22

Id. at p. 4.

23

515 U.S. 347 (1995).

24

Rec. Doc. 22-1 at p. 4.

25

Id.

4

Defendant does not dispute that at the time of the alleged May 3, 2009 incident, Plaintiff was
a seaman, but avers that after that incident Plaintiff:
never worked as a member of the crew of [Defendant's] vessel[s] again. Rather, he
worked in the warehouse on land, in the Leeville shipyard, and "Safe Harbor" and,
as such, was not subjected to the perils of the sea. Indeed, [Plaintiff] was, on
February 2, 2012, a "harbor worker" which makes him a covered worker under the
Longshore and Harbor Worker Compensation Act ("LHWCA"). A covered worker
under the LHWCA is, by definition not a seaman and a seaman, by definition, not a
covered worker under the LHWCA.26
Defendant also argues that Plaintiff fails to satisfy the second requirement for seaman status
set forth in Chandris, that a seaman must have an employment related connection to a vessel in
navigation that is substantial in terms of both its duration and its nature.27 Defendant contends that
not only does Plaintiff fail this prong because his work at "Safe Harbor" did not regularly expose
him to the perils of the sea, but also because the cold stacked vessels at "Safe Harbor" were not
vessels in navigation.28 Defendant cites the affidavit of William J. Foret, Chief Executive Officer
of Defendant, who states that the EARLY BIRD had been out of service since September 24, 2009
when its certificate of inspection was surrendered to the United States Coast Guard, without which
it "could not work."29 Further, Defendant states that:
The Early Bird was not in a situation where she was simply at a dock having returned
from a voyage or simply under going minor repairs. She has been totally removed
from navigating the Gulf of Mexico since September 24, 2009. As pointed out on
page 374 of Chandris, a vessel may be out of navigation when it is removed from
service for a lengthy period of time.30
26

Id. at p. 5.

27

Id.

28

Id.

29

Id. at pp. 5-6 (citing Affidavit of William Foret, Rec. Doc. 22-6).

30

Id.

5

Finally, Defendant argues that reference to the incident reports are "educational" on Plaintiff's status.
The incident report from the May 3, 2009 incident lists the crew and Plaintiff as one of the crew
members. In contrast, the incident report for the February 2, 2012 incident shows "no crew and no
crew member job for [Plaintiff]."31
B. Plaintiff's Opposition
In opposition to the pending motion, Plaintiff claims that he was initially hired by Defendant
as a deckhand, and then promoted to engineer.32 Plaintiff argues that throughout all of his job
assignments, he has received engineer's pay and that his duties have remained the same – those of
an engineer.33 Plaintiff notes that the determination of seaman status under the Jones Act is a mixed
question of fact and law, which should usually be resolved by the jury.34
With regard to the first prong, Plaintiff claims that this is a low hurdle, and a plaintiff need
only show that "he does ship's work."35 Regarding the "perils of the sea," Plaintiff argues that the
courts have not expressly defined this term, but that even vessels that are temporarily moored will
not defeat seaman status.36 Plaintiff claims that "perils of the sea" is a "'term of art that embraces ...
vessel-movement dangers.'"37 Plaintiff argues that when his entire working history is considered,

31

Id. at p. 6 (citing Rec. Doc. 22-3 at pp. 109-13).

32

Rec. Doc. 24 at pp. 1-2.

33

Id. at p. 2.

34

Id. at p. 3 (citing Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997); Becker v. Tidewater, Inc., 335
F.3d 375 (5th Cir. 2003)).
35

Id. at p. 5 (citing Chandris, 515 U.S. at 347).

36

Id. (citing In re Endeavor Marine, 234 F.3d 287 (5th Cir. 2000)).

37
Id. at p. 6 (quoting Navarre v. Kostmayer Constr. Co., 2010-0490 (La. App. 4 Cir. 11/24/10); 52 So. 3d 921,
929 n. 17) (alterations in Plaintiff's memorandum).

6

including his years as a deckhand and then engineer up to 2009, he satisfies this requirement.38 He
also claims that he was only "temporarily" at "Safe Harbor" while he recovered his the 2009 injury.39
However, Plaintiff avers that "even if limited to the temporary Bayou Durlage assignment,
plaintiff still qualifies as a seaman."40 Specifically, Plaintiff states:
Plaintiff?s job title was always engineer. The duties he performed were those of an
engineer with the possible exception of the few months he worked at the dry dock
in the Leesville [sic] Yard and the time that he initially worked as a deckhand. It is
undisputed that plaintiff was a seaman up until his first accident in May 2009.
However, the facts at the very least establish that reasonable minds could differ as
to whether he maintained his seaman status through his February 2012 accident.41
Plaintiff proposes that he can be considered a seaman under two different calculations:
First, plaintiff can be considered a seaman due to the nature of his work between
May 2009 and February 2012. He was assigned to the M/V HAROLD CALLAIS –
a vessel in navigation as discussed below – and his equipment was housed on this
vessel.42 His work contributed to the function of an entire fleet of ACO vessels as
well as to the accomplishment of their mission.
Second, plaintiff can be considered a seaman under the totality of circumstance
surrounding his 7 years of employment with ACO. He did not lose his seaman status
by virtue that he was temporarily assigned other jobs while he was healing from his
first injury (or for that matter, even if he was waiting on approval for his TWIC
card). At all times during his 7 year career with ACO, he performed duties typical
of a seaman (except possibly the time in the warehouse and dry dock, again a small
period of a few months out of 7 years). His duties at Bayou Dularge/Safe Harbor
clearly contributed to the function of the vessels and the accomplishment of their
missions. He prepared them for charter. This maintenance work alone contributes to
the function and mission of the vessels.42

38

Id.

39

Id. at p. 7.

40

Id.

41

Id.

42

Id. at pp. 7-8.

7

Plaintiff also alleges that he satisfies the second prong, that the employee has a substantial
connection to a vessel in navigation (or fleet of vessels).43 Plaintiff notes that the Supreme Court and
Fifth Circuit have imposed a 30% rule, where an employee's working time is substantial if more than
30% of his hours are in connection to a vessel in navigation. Plaintiff argues that even if the "Safe
Harbor" time is not considered as time in the service of vessels, Plaintiff still meets the 30%
threshold because it is undisputed that he was a seaman for at least 4 of the 7 years he worked for
Defendant.44
Plaintiff refutes Defendant's argument that he does not meet this prong because he did not
have employment with a "vessel in navigation." However, Plaintiff contends that this requirement
does not require that a "vessel actually be under way."45 Plaintiff argues that the vessels at "Safe
Harbor" constitute vessels in navigation. "To suggest otherwise would be to remove any moored
vessel from vessel status while it sat dockside."46 Moreover, Plaintiff proposes that:
these vessels, including the HAROLD J> [sic] CALAIS [sic] all still maintained their
Certificates of Inspection on the day of the accident (and before and after such) as
evidenced by the fleet log for Bayou Dularge on the date of the accident. This fleet
log states that the 'COI' (certificate of inspection) was on file in Houma for the vessel
to which Stelly was assigned on the date of his accident (or the fleet of vessels). The
question is ultimately whether the watercraft's use as a means of transportation is a
practical possibility or merely a theoretical one. A vessel is any watercraft practically
capable of maritime transportation, regardless of its primary purpose or state of
transit at a particular moment.47

43

Id. at p. 8.

44

Id. at p. 9.

45

Id. (citing Stewart v. Dutra Const. Co., 543 U.S. 481 (2005)).

46

Id. at p. 10.

47

Id. (internal quotation marks and citations omitted).

8

Plaintiff argues that the "Safe Harbor" vessels were "simply not under contract as opposed to out of
service."48 Plaintiff also points to the deposition of Roger Arceneaux, the DP2 Supervisor, who
states that the "Safe Harbor" vessels were not actively being chartered.49 Through citation to the
depositions of Plaintiff and Arceneaux, Plaintiff argues that these vessels would not permanently
stay at "Safe Harbor" for an extended period of time, and that "Safe Harbor" was not a dry dock
where vessels were totally taken out of service; in fact, it was Plaintiff's job to get the vessels ready
for when they came under contract; moreover, these vessels were not always at "Safe Harbor,"and
would move in and out. When this happened, Plaintiff would "ride on the boats."50 Plaintiff also cites
the deposition of Arceneaux to support his contention that the vessels at "Safe Harbor" were only
placed there because they were not under contract, but they were all fully functional, and none of
the vessels had lost their ability to navigate.51
Finally, Plaintiff refutes some of the assertions made in Foret's affidavit, which Defendant
referenced in the memorandum in support. Plaintiff argues that Paragraph 8 of the affidavit "implies
that the vessels kept at Durlage/Safe Harbor were not working. However, this is in direct conflict
with both plaintiff and Roger Arceneaux's testimony that all of the vessels kept there were fully
functioning and were merely there while not under contract."52

48

Id. (citing Rec. Doc. 22-3 at pp. 102-05).

49

Id. at pp. 10-11 (citing Rec. Doc. 22-4 at p. 6).

50

Id. at p. 11 & nn. 56-61.

51

Id. & nn.64-66.

52

Id. at p. 12.

9

C. Defendant's Reply
In reply, Defendant reiterates that Plaintiff has received compensation benefits in compliance
with the LHWCA, and that a covered worker under the LHWCA is not a seaman by definition.53
Defendant also argues that Plaintiff "misses the prongs of Chandris because his work does not
contribute to the function of the vessel which is to sail in the Gulf of Mexico delivering men and
equipment to the offshore oil industry."54 Finally, Defendant argues that the EARLY BIRD could
not be a vessel in navigation because it turned in its COI in 2009 to the Coast Guard.55
III. Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, 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."56 When assessing whether a dispute as to any
material fact exists, the court considers "all of the evidence but refrains from making credibility
determinations or weighing the evidence."57 All reasonable inferences are drawn in favor of the
nonmoving party, but "'conclusory allegations supported by a conclusory affidavit will not suffice
to require a trial.' This is true even if the movant cannot demonstrate contrary facts by specific
affidavit recitation to rebut the conclusory affidavit."58 If the record, as a whole, could not lead a

53

Rec. Doc. 27 at p. 2.

54

Id.

55

Id.

56

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
57

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).

58
Travelers Ins. Co. v. Liljeberg Enters., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993) (quoting Shaffer v. Williams,
794 F.2d 1030, 1033 (5th Cir. 1986)).

10

rational trier of fact to find for the nonmoving party, then no genuine issue of fact exists and the
moving party is entitled to judgment as a matter of law.59
Because factual disputes may not be resolved on summary judgment, a plaintiff need not
offer all of its evidence, but rather only enough so that a jury might return a verdict in its favor.60 If
the nonmovant would bear the burden of proof at trial on a claim, the movant may simply point to
the absence of evidence, which then returns the burden on the motion for summary judgment to the
nonmovant.61 Then, the nonmovant must point to competent evidence that there is an issue of
material fact so as to warrant trial.62 To defeat summary judgment, the nonmovant must direct the
court’s attention to specific evidence in the record to establish an issue of material fact as to each
claim upon which it will bear the burden of proof at trial.63 "The opponent must meet the movant’s
affidavits with opposing affidavits that set out specific facts showing an issue for trial."64
IV. Law and Analysis
A. Seaman Status under the Jones Act- Generally
As both parties have recognized, the Supreme Court has developed a two-prong test to
determine seaman status. First, a plaintiff must show that his duties "contribut[e] to the function of
the vessel or to the accomplishment of its mission."65 Second, "a seaman must have a connection to

59

Amoco Prod. Co. v. Horwell Energy, Inc., 969 F.2d 146, 147-48 (5th Cir. 1992).

60

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264 (5th Cir. 1991).

61

Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994) (per curiam).

62

Id.

63

Rizzo v. Children’s World Learning Ctrs., 84 F.3d 758, 762 (5th Cir. 1996).

64

Travelers, 7 F.3d at 1206-07.

65

Chandris, 515 U.S. at 368.

11

a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both
its duration and its nature."66 "Generally, the Fifth Circuit seems to have identified an appropriate
rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in
the service of a vessel in navigation should not qualify as a seaman under the Jones Act."67
"The seaman inquiry is a mixed question of law and fact, and it often will be inappropriate
to take the question from the jury."68 The Fifth Circuit has instructed "'that the question of seaman
status should only be removed from the trier of fact (by summary judgment or directed verdict) in
rare circumstances and that even marginal Jones Act claims should be submitted to the jury.'"69
However, "judgment as a matter of law is mandated where the facts and the law will reasonably
support only one conclusion."70
B. Analysis
1. First Prong of Chandris
The Fifth Circuit has acknowledged that satisfaction of this prong is "relatively easy," as a
plaintiff need only show that he does ship's work.71 "This threshold requirement is 'very broad,'
encompassing 'all who work at sea in the service of a ship.'"72 Defendant has argued that Plaintiff
fails to satisfy this "relatively easy" threshold requirement, because Plaintiff did not work at sea and
66

Id.

67

Id. at 371.

68

Harbor Tug, 520 U.S. at 554.

69

Sharp v. Johnson Bros. Corp., 917 F.2d 885, 888 (5th Cir. 1990) (quoting Bernard v. Binnings Constr. Co.,
741 F.2d 824, 827 (5th Cir. 1984)).
70

Becker, 335 F.3d at 386.

71

Id.

72

Id. (quoting Chandris, 515 U.S. at 368).

12

therefore was not exposed to its perils.73 However, this is not the focal point of the first prong, and
a showing that the employee contributes to the function of the vessel or the accomplishment of its
mission is all that is required.74
In opposition, Plaintiff has directed the Court to his deposition where he states that his duties
included preparing the vessels so they would be ready for when they came under contract.75
Therefore, Plaintiff has submitted evidence that he contributed to the function of a vessel and the
accomplishment of its mission.76 This evidence suffices to satisfy Plaintiff's burden to defeat
summary judgment on this issue, especially when the Court keeps in mind that even marginal Jones
Act claims should be submitted to the jury.77 Therefore, unless Plaintiff fails to satisfy his burden
to defeat summary judgment as to the second prong, the jury must resolve this issue.
2. Second Prong of Chandris
The second prong requires a plaintiff to have a substantial connection to a vessel in
navigation (or of an identifiable group of such vessels) that is substantial in terms of both duration
and nature:
The fundamental purpose of this substantial connection requirement is to give full
effect to the remedial scheme created by Congress and to separate the sea-based
maritime employees who are entitled to Jones Act protection from those land-based
workers who have only a transitory or sporadic connection to a vessel in navigation,

73

See Rec. Doc. 22-1 at p. 4.

74

Chandris, 545 U.S. at 368.

75

Rec. Doc. 24 at p. 11 & nn.56-61 (citations to Plaintiff's deposition).

76

See Chandris, 515 U.S. at 368.

77

Sharp, 917 F.2d at 888.

13

and therefore whose employment does not regularly expose them to the perils of the
sea.78
Defendant contends that Plaintiff does not satisfy the second prong because his work at "Safe
Harbor" did not regularly expose him to the perils of the sea, and because the vessels at "Safe
Harbor" were not in navigation.79 To the first issue, Plaintiff has cited to his own deposition where
he explains how part of his job duties at "Safe Harbor" involved moving vessels in and out of the
facility; when these vessels would be moved, he would be on board while a captain navigated the
vessel, and on at least one occasion Plaintiff moved the vessel himself.80 Moreover, the Fifth Circuit
has noted that it is the "employee's connection to a vessel," not the particular job, that is the crux of
this factor.81 In fact, the Fifth Circuit has expressly stated that "even a ship repairman (which is
traditional longshoreman work and is one of the enumerated occupations under the LHWCA) may
qualify for seaman status if he has the requisite employment-related connection to the vessel."82
Plaintiff has brought forward some evidence that his work did expose him to the perils of the sea and
that he had a substantial connection to the vessels at "Safe Harbor."
As noted above, Defendant also claims that the vessels at "Safe Harbor" were not "in
navigation." The Supreme Court has noted that "a watercraft is not 'capable of being used' for

78

Chandris, 515 U.S. at 368.

79

Rec. Doc. 22-1 at p. 5.

80

Rec. Doc. 22-3 at pp. 97-99.

81

In re Endeavor Marine Inc., 234 F.3d at 291 (citing Chandris, 515 U.S. at 364).

82

Id.

14

maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered
practically incapable of transportation or movement."83 However:
A ship and its crew do not move in and out of Jones Act coverage depending on
whether the ship is at anchor, docked for loading or unloading, or berthed for minor
repairs, in the same way that ships taken permanently out of the water as a practical
matter do not remain vessels merely because of the remote possibility that they may
one day sail again.84
In support of his claim that the vessels at "Safe Harbor" qualify for Jones Act coverage,
Plaintiff has cited to the deposition of himself and Roger Arceneaux. These accounts provide at the
very least some evidence that the vessels were simply not under contract instead of out of service,
were maintained at "Safe Harbor" for when they did come under contract, and were fully functional
and had not lost their ability to navigate. In contrast, Defendant has submitted the affidavit of
William Foret, where he states that the EARLY BIRD had been out of service since September 2009
and "could not work." Accordingly, a dispute as to a material fact exists on this issue, which
precludes summary judgment.
3. Plaintiff's Receipt of LHWCA Payments
While not directly addressed, throughout its briefing on this motion, Defendant notes several
times that Plaintiff is receiving benefits under the LHWCA.85 The Court recognizes that under
binding precedent, a plaintiff's receipt of LHWCA compensation does not affect the analysis of the

83

Stewart, 543 U.S. at 494.

84

Id.

85

See Rec. Doc. 22-1 at p. 5; see also Rec. Doc. 27 at pp. 2, 3.

15

issues addressed above in any way. In Southwest Marine, Inc. v. Gizoni,86 the Supreme Court
addressed this issue and stated:
Finally, Southwest Marine suggests that an employee's receipt of benefits under the
LHWCA should preclude subsequent litigation under the Jones Act. To the contrary,
however, we have ruled that where the evidence is sufficient to send the threshold
question of seaman status to the jury, it is reversible error to permit an employer
to prove that the worker accepted LHWCA benefits while awaiting trial. It is by
now "universally accepted" that an employee who receives voluntary payments
under the LHWCA without a formal award is not barred from subsequently seeking
relief under the Jones Act. This is so, quite obviously, because the question of
coverage has never actually been litigated. Moreover, the LHWCA clearly does not
comprehend such a preclusive effect, as it specifically provides that any amounts
paid to an employee for the same injury, disability, or death pursuant to the Jones Act
shall be credited against any liability imposed by the LHWCA.5 33 U.S.C. §
903(e).87
Considering the controlling authority on this issue, Plaintiff has provided sufficient evidence to
establish that there is a material fact in dispute regarding his seaman status, and the Court will not
allow the Defendant to use the fact that Plaintiff received LHWCA benefits while awaiting trial as
evidence to defeat Plaintiff's status; further, the Court draws no inference from Plaintiff's alleged
receipt of LHWCA payments.

86

502 U.S. 81 (1991).

87

Id. at 91 (internal citations omitted).

16

V. Conclusion
Plaintiff has come forward with sufficient evidence to demonstrate disputed issues of fact
regarding his status as a seaman, and therefore has carried his burden to defeat summary judgment.
Therefore, the issue of Plaintiff's seaman status on February 2, 2012 must be decided by the jury.
Accordingly,
IT IS HEREBY ORDERED that Defendant's Motion for Partial Summary Judgment88 is
DENIED.
NEW ORLEANS, LOUISIANA, this ____ day of June, 2013.

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

88

Rec. Doc. 22.

17