Howard v. Offshore Liftboats, LLC et al

Filing 417

ORDER AND REASONS granting 341 Motion to Dismiss Plaintiff, Calvin Howard's, Claims for Punitive Damages and 343 Motion to Dismiss Plaintiff, Raymond Howard's Claims for Punitive Damages. Signed by Judge Susie Morgan on 11/19/2015. (Reference: 13-6407, 14-1188)(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CALVIN HOWARD, ET AL.

CIVIL ACTION

VERSUS

NO. 13-4811
c/w 13-6407 and 14-1188

OFFSHORE LIFTBOATS, LLC,
ET AL.

SECTION "E" (5)

ORDER AND REASONS
Before the Court are two motions to dismiss filed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. 1 Both motions were filed by “the K&K Defendants.” 2 The
first motion to dismiss is with respect to Plaintiff Calvin Howard’s claims for punitive
damages against the K&K Defendants, 3 and the second motion to dismiss is with respect
to Plaintiff Raymond Howard’s claims for punitive damages against the K&K
Defendants. 4 Both Plaintiffs have filed oppositions to the respective motions. 5 The K&K
Defendants then filed a reply memorandum in further support of the motions to dismiss. 6
The Court has considered the briefs, the record, and the applicable law, and now
issues its ruling. For the reasons stated herein, the motions to dismiss are GRANTED.
BACKGROUND
This is a maritime personal injury case. It is undisputed that, on May 16, 2013,
Plaintiffs Raymond Howard (“Raymond”) and Calvin Howard (“Calvin”) were injured
during a personnel-basket transfer from the M/V Contender to the deck of the L/B Janie.7
R. Docs. 341, 343.
The motions were filed by K&K Offshore, LLC, and its many insurers—P&M Marine, LLC; Atlantic
Specialty Insurance Company; Markel American Insurance Company; ProCentury Insurance Company;
Navigators Insurance Company; United States Fire Insurance Company; Lloyds Underwriters; and Torus
Insurance Company (UK), Limited. They are referred to herein, collectively, as “the K&K Defendants.”
3 R. Doc. 341.
4 R. Doc. 343.
5 R. Doc. 357 (Raymond Howard); R. Doc. 376 (Calvin Howard).
6 R. Doc. 406.
7 See R. Doc. 321; R. Doc. 357 at 1–2; R. Doc. 376 at 1–2.
1
1

2

At the time of the accident, both Raymond and Calvin were employed by Offshore
Liftboats, LLC, (“OLB”), the owner and/or operator of the L/B Janie. 8 The M/V
Contender was owned and/or operated by K&K Offshore, LLC. 9 As a result of the accident,
both Raymond and Calvin filed suit against OLB—their Jones Act employer—alleging,
inter alia, negligence under the Jones Act and seeking punitive damages. Raymond and
Calvin also sued K&K Offshore, a non-employer third party, under the General Maritime
Law for negligence and unseaworthiness, as well as for punitive damages.
On October 30, 2015, the K&K Defendants filed the present motions to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. 10 The motions seek the
dismissal of Raymond Howard’s and Calvin Howard’s punitive damages claims against
the K&K Defendants. It is these motions that are presently before the Court.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a claim if the
claimant fails to set forth factual allegations in support of the claim that would entitle the
claimant to relief. 11 Those “‘[f]actual allegations must be enough to raise a right to relief
above the speculative level.’” 12 “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” 13 “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” 14 In considering a motion to dismiss, the Court must accept all well-

R. Doc. 357 at 1–2; R. Doc. 376 at 1–2. See also R. Doc. 321.
R. Doc. 357 at 1–2; R. Doc. 376 at 1–2. See also R. Doc. 321.
10 R. Docs. 341, 343.
11 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Cuvillier v. Taylor, 503 F.3d 397, 401
(5th Cir. 2007).
12 Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009) (quoting Twombly, 550 U.S. at 555).
13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
14 Id.
2
8
9

pleaded facts as true and draw all reasonable inferences in favor of the non-moving
party. 15 The Court need not, however, accept as true legal conclusions couched as factual
allegations. 16 “[O]nly a complaint that states a plausible claim for relief survives a motion
to dismiss.” 17
DISCUSSION
The K&K Defendants contend that controlling Fifth Circuit precedent, namely
McBride v. Estis Well Services, LLC, 18 “has expressly precluded awards for punitive
damages related to claims arising under the Jones Act and General Maritime Law.” 19 In
McBride, the Fifth Circuit cited to and relied on the Supreme Court’s 1990 decision in
Miles v. Apex Marine Corp., which held that “the Jones Act limits a seaman’s recovery to
pecuniary losses where liability is predicated on the Jones Act or unseaworthiness.
Because punitive damages are non-pecuniary losses, punitive damages may not
be recovered.” 20
In response, Raymond and Calvin rely heavily on a recent decision of this district,
Collins v. A.B.C. Marine Towing, L.L.C, 21 which concluded that punitive damages are
available under General Maritime Law against a non-employer third party. 22 In Collins,
the court declined to follow the Fifth Circuit’s decision in Scarborough v. Clemco
Industries, which held, in line with Miles and McBride, that a seaman may not recover
punitive damages against either his employer or a non-employer. 23 Collins noted that,

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
Iqbal, 556 U.S. at 678.
17 Id. at 679.
18 768 F.3d 382 (5th Cir. 2014) (en banc).
19 R. Doc. 341 at 1–2; R. Doc. 343 at 1–2.
20 McBride, 768 F.3d at 383 (citing Miles v. Apex Marine Corp., 498 U.S. 19 (1990)).
21 See R. Docs. 357 at 4–5; R. Doc. 376 at 4–6. Both Raymond and Howard base their oppositions, in large
part, on the Collins decision and its reasoning. For the Collins decision, see Collins v. A.B.C. Marine
Towing, L.L.C., No. 14-1900, 2015 WL 5254710 (E.D. La. Sept. 9, 2015).
22 Collins, 2015 WL 5254710, at *5–6.
23 Scarborough v. Clemco Indus., 391 F.3d 660, 668 (5th Cir. 2004).
3
15

16

since the Scarborough decision in 2004, the Supreme Court has held—in Atlantic
Sounding Co. v. Townsend—that a seaman can recover punitive damages for an
employer’s arbitrary withholding of maintenance and cure. 24 Thus, the Collins court
concluded that the Supreme Court effectively “call[ed] into question the legal reasoning
and conclusions espoused in Scarborough” and that, consequently, Scarborough had
been implicitly overruled. 25 As a result, the Collins court found, in the context of a
seaman’s claims against a non-employer third party where the Jones Act is not implicated,
the seaman can recover punitive damages. 26
However, as even Collins recognizes, the Townsend decision is specific to the
maintenance-and-cure context and does not address whether punitive damages are
available for claims of unseaworthiness. 27 In fact, the Townsend Court took pains to
distinguish maintenance and cure, for which it concluded punitive damages are available,
from a seaman’s remedies for negligence and unseaworthiness, for which punitive
damages are generally not available under Miles, Scarborough, and McBride. 28 As other
courts in this district have recognized, although Townsend may give hope to seamen
wishing to obtain punitive damages for unseaworthiness claims against their employers
and non-employers, “this Court cannot assume the Fifth Circuit has changed its position
on personal injury claims falling outside the scope of Townsend.” 29 Further, the Court

See Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 424–25 (2009); see also Collins, 2015 WL
5254710, at *3–4.
25 Collins, 2015 WL 5254710, at *5.
26 Id. at *5–6.
27 Id. at *3. See also Townsend, 557 U.S. at 419–21.
28 Townsend, 557 U.S. at 407. Moreover, Townsend also does not reach the issue specific to the present
motions, i.e., whether punitive damages are available against a non-employer third party, such as K&K
Offshore.
29 Bloodsaw v. Diamond Offshore Mgmt. Co., No. 10-4163, 2013 WL 5339207, at *1 (E.D. La. Aug. 19, 2013).
See also In re International Marine, No. 12-358, 2013 WL 3293677, at *9 (E.D. La. June 28, 2013); O’Quain
v. Shell Offshore, Inc., No. 2:12-cv-01693, 2013 WL 149467, at *4 (E.D. La. Jan. 14, 2013); In re Oil Spill by
the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179, 2011 WL
4
24

notes that the Fifth Circuit’s decision in Scarborough, which held that a seaman may not
recover punitive damages against either his employer or a non-employer, is binding on
this Court and has never been overruled. As a result, the Court finds that the punitive
damages claims of Plaintiffs Raymond Howard and Calvin Howard against K&K Offshore
are not plausible claims for relief in light of binding Fifth Circuit precedent.
CONCLUSION
IT IS ORDERED that the motions to dismiss filed by the K&K Defendants, with
respect to the punitive damages claims of Plaintiffs Raymond Howard and Calvin
Howard, 30 are hereby GRANTED.
New Orleans, Louisiana, this 19th day of November, 2015.
______________ ________ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

4575696, at *11 (E.D. La. Sept. 30, 2011); Wilson v. Noble Drilling Corp., No. 08-4940, 2009 WL 9139586,
at *2–3 (E.D. La. Aug. 12, 2009).
30 R. Docs. 341, 343.
5