Nunnery v. Offshore Marine Contractors, Inc.
Filing
32
ORDER AND REASONS granting 24 Motion for Partial Summary Judgment, dismissing any non-negligence claims plaintiff may have pleaded.. Signed by Chief Judge Sarah S. Vance on 7/16/14. (jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CRAIG D. NUNNERY
CIVIL ACTION
VERSUS
NO: 12-2880
OFFSHORE MARINE CONTRACTORS, INC
SECTION: R
ORDER AND REASONS
Defendant
interprets
the
Offshore
complaint
Marine
of
Contractors,
plaintiff
Craig
Inc.
D.
("OCMI")
Nunnery
as
impermissibly asserting claims for unseaworthiness and strict
liability. OCMI now moves for partial summary judgment dismissing
those
claims.
Because
the
Longshore
and
Harbor
Workers'
Compensation Act permits only negligence claims against a thirdparty vessel owner, the Court GRANTS the motion.
I.
BACKGROUND
Plaintiff was hired by Tetra Technologies to perform plug
and abandonment work on oil wells owned by Stone Energy.1 Stone
Energy chartered the L/B Wyatt Lee, a self elevating vessel owned
by defendant OCMI.2 Nunnery alleges that on or around March 31,
2012, he was injured when struck in the hip by a maul wielded by
1
R. Doc. 1 at 2.
2
R. Doc. 24-3 at 1.
his co-worker, Nick Greer.3 At the time, Nunnery was not aboard
the L/B Wyatt Lee; rather, he and Greer were standing on a
platform adjacent to the vessel.4 Plaintiff alleges that Greer
attempted to use the maul to strike a joint of pipe that was
suspended by a crane located on the L/B Wyatt Lee.5 Plaintiff
further alleges that the crane caused the joint pipe to move
unexpectedly, which resulted in the maul slipping from Greer’s
grip before striking plaintiff.6 Plaintiff sued OCMI "pursuant to
the general maritime law and 33 U.S.C. § 905(b)", seeking damages
for past and future lost income, loss of enjoyment of life,
personal and medical expenses, and past and future physical and
mental pain and suffering.7 OMCI now moves for partial summary
judgment, seeking dismissal of any non-negligence claims
plaintiff may have asserted in the complaint. Plaintiff has not
opposed the motion.
II.
LEGAL STANDARD
Summary judgment is warranted when “the movant shows that
there is no genuine dispute as to any material fact and the
3
R. Doc. 1 at 2-3.
4
R. Doc. 24-1 at 8.
5
R. Doc. 1 at 3.
6
Id.
7
Id. at 3-4.
2
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers “all of the evidence in the record but
refrains from making credibility determinations or weighing the
evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398 (5th Cir. 2008). The Court must draw all
reasonable inferences in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ultimate or
conclusory facts and conclusions of law are insufficient to
either support or defeat a motion for summary judgment.” Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)
(internal quotation marks omitted).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence that would entitle it to a directed
verdict if the evidence went uncontroverted at trial.” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991)(citation omitted). The nonmoving party can then defeat
the motion by either countering with sufficient evidence of its
own, or “showing that the moving party’s evidence is so sheer
that it may not persuade the reasonable fact-finder to return a
verdict in favor of the moving party.” Id. at 1265.
3
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324.
The nonmovant may not rest upon the pleadings, but must
identify specific facts that establish a genuine issue for trial.
Id. at 325. See also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates
the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.’”) (citing Celotex, 477 U.S. at 332).
III. DISCUSSION
Based on the wording of plaintiff's complaint, OMCI believes
that plaintiff may have asserted, in addition to negligence,
claims of unseaworthiness and strict liability. OMCI argues that
the Longshore and Harbor Workers' Compensation Act ("LHWCA")
expressly precludes these claims.
Section 905(b) of the LHWCA allows an injured longshoreman
4
to bring a third party negligence action against the owner of the
vessel causing the injury. Howlett v. Birkdale Shipping Co.,
S.A., 512 U.S. 92, 96 (1994). This provision, aptly titled
“Negligence of vessel,” addresses injuries due solely to
negligence. 33 U.S.C.A. § 905(b). It expressly states that “the
liability of the vessel under this subsection shall not be based
upon the warranty of seaworthiness or a breach thereof at the
time the injury occurred.” Id. It further states that "[t]he
remedy provided in this subsection shall be exclusive of all
other remedies against the vessel except remedies available under
this chapter." Id. Section 905(b) constituted part of the 1972
Amendments to the LHWCA, which repealed the previous right of
longshoremen to sue on the warranty of seaworthiness. Howlett,
512 U.S. at 96.
In his complaint, plaintiff asserts that his injury was
caused by “the negligence of the defendant and/or as a result of
the unreasonably dangerous condition of its vessel, L/B Wyatt
Lee.”8 He later states that the “defendant’s negligence and/or
the unsafe condition of its vessel” caused his injury.9 The
plaintiff also offered the theory that “some defect or
malfunction in the L/B Wyatt Lee’s crane” moved the joint pipe
8
R. Doc. 1 at 2.
9
Id. at 3.
5
unexpectedly, leading to the plaintiff’s injury.10
The defendant reads these references to an “unsafe
condition” and an “unreasonably dangerous condition” of the
vessel as an attempt to assert a claim of unseaworthiness in
addition to his negligence claim. Additionally, the defendant
interprets plaintiff’s reference to “some defect or malfunction
in L/B Wyatt Lee’s crane,” to mean that the plaintiff may seek
relief under a theory of strict liability.
It is not entirely clear from the complaint whether
plaintiff is seeking to assert claims of strict liability or
unseaworthiness. Regardless, Section 905(b) precludes any theory
of recovery other than negligence. Accordingly, to the extent
plaintiff seeks to assert claims other than negligence, the Court
dismisses those claims.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s
motion for partial summary judgment, dismissing any nonnegligence claims plaintiff may have pleaded.
New Orleans, Louisiana, this 16th day of July, 2014.
___
_____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
10
Id.
6
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