Wimberly v. Harvey Gulf International Marine, LLC

Filing 20

ORDER AND REASONS granting in part and denying in part 15 Motion for Partial Summary Judgment. Further Ordered that plaintiff's claims for compensatory damages, punitive damages, and attorney's fees arising from Harvey Gulf's alleged failure to pay maintenance and cure be Dismissed. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARTIN WIMBERLY

CIVIL ACTION

VERSUS

NO. 14-1208

HARVEY GULF INTERNATIONAL
MARINE, LLC

SECTION "B"(5)

ORDER AND REASONS

I.

NATURE OF THE MOTION AND RELIEF SOUGHT
Before the Court is a Motion for Partial Summary Judgment

by Defendant.1

Plaintiff has filed a response in opposition.2

Defendant has filed a reply.3 The motion, set for submission on
March 25, 2015 is before the Court on the briefings, without
oral

argument.

Accordingly,

and

for

the

reasons

enumerated

below,
IT IS ORDERED that the Motion for Partial Summary Judgment
be GRANTED in part, and DENIED in part. IT IS ORDERED that
Wimberly’s claims for compensatory damages, punitive damages,
and attorney’s fees arising from Harvey Gulf’s alleged failure
to pay maintenance and cure be DISMISSED.

1

Rec. Doc. No. 15.
Rec. Doc. No. 16.
3
Rec. Doc. No. 17.
2

1

II.

FACTS AND PROCEDURAL BACKGROUND

This action arises under 46 U.S.C. § 30104, the Jones Act,
and the General Maritime Laws.4 On or about January 2, 2014,
plaintiff,

Martin

Wimberly

(“Wimberly”)

was

an

employee

of

defendant, Harvey Gulf International Marine, LLC, (“Harvey Gulf”
or “Defendant”) and working aboard the M/V HARVEY SAINT, when he
suffered severe and excruciating injuries to his back, neck and
other parts of his body, alleged to have been caused by the
negligence

of

the

defendant,

and

its

employees

and/or

the

unseaworthiness of the vessel.5
On May 28, 2014, Wimberly filed suit against Harvey Gulf,
alleging claims for negligence; unseaworthiness; for maintenance
and cure benefits; and for compensatory damages, attorney’s fees
and punitive damages for alleged failure to pay maintenance and
cure benefits.6 Defendant moves the Court for partial summary
judgment, arguing that: plaintiff cannot establish the essential
elements of his (1) negligence and (2) unseaworthiness claims
and, (3) defendant has paid all maintenance and cure benefits.7
The Court now reviews the facts, contentions, and the law with
respect to the Motion for Partial Summary Judgment.

4

Rec. Doc. No. 1 at 1.
Rec. Doc. No. 1 at 1-2.
6
Rec. Doc. No. 1 at 2-3.
7
Rec. Doc. No. 15 at 1-2.
5

2

III. ANALYSIS
a. Standard of Law: Partial Summary Judgment
Summary

judgment

is

appropriate

only

if

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits show that there is no genuine issue
as to any material fact and the movant is entitled to judgment
as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 749 (5th
Cir. 2002). A genuine dispute of material fact exists when the
“evidence is such that a reasonable jury could return a verdict
for

the

L.L.C.,
“defeat

nonmoving
736

F.3d

summary

party.”
396,

400

judgment

Royal
(5th

v.

CCC

Cir.

with

&

R.

2013).

A

conclusory

Tres

Arboles,

party

cannot

allegations,

unsubstantial assertions, or ‘only a scintilla of evidence.’”
Celtic Marine Corp. v. James C. Justice Companies, Inc., 760
F.3d 477, 481 (5th Cir. 2014); TIG Ins. Co., 276 F.3d at 759.
The proponent of the motion always bears the initial burden
of showing a lack of evidence to support his opponent’s case.
Fed. R. Civ. P. 56(c); Stauffer v. Gearhart, 741 F.3d 574, 582
(5th Cir. 2014). Where the nonmoving party bears the burden of
proof at trial, the moving party satisfies this initial burden
by demonstrating an absence of evidence to support the nonmoving
party’s case. Celotex Corp. v. Catrett, 477 U.S. at 325. The
3

Court must draw all justifiable inferences in favor of the nonmoving

party.

TIG

Ins.

Co.,

276

F.3d

at

759.

A

court

must

refrain from making credibility determinations or weighing the
evidence. Celtic Marine Corp, 760 F.3d at 481.
1. Negligence Claim
Plaintiff claims to have been injured as a result of the
negligence of defendant and its employees.8 Under the Jones Act,
a

seaman

has

a

cause

of

action

if

an

employer’s

negligence

played any part, even the slightest, in producing an injury.
Gavagan v. U.S., 955 F.2d 1016, 1018 (5th Cir. 1992). A Jones
Act employer has a duty to provide a reasonably safe place to
work. Daigle v. L & L Marine Trans. Co., 322 F.Supp.2d 717, 725
(E.D. La. 2004).9 However, liability does not attach to a Jones
Act employer for injuries suffered by its employees absent proof
that the injury occurred during the course of employment, that
there was negligence on the part of the employer, and that such
negligence was the cause, in whole or in part, of the seaman’s
injury. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338
(5th

Cir.

1997)(en

banc).

Any

failure

of

defendant

to

warn

plaintiff of conditions of which he was, or should have been,

8

Rec. Doc. No. 1 at 2-3.
It appears to be undisputed that Harvey Gulf, Plaintiff’s employer, owed him a duty of care to provide a safe work
place or that the incident at issue occurred during the course of Plaintiff’s employment. Daigle v. L. & L Marine
Trans. Co., 322 F.Supp.2d 717, 725 (E.D. La. 2005)(citing Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir.
1989)).
9

4

aware would not be negligence on the part of the defendant.10 A
seaman is obligated under the Jones Act to act with ordinary
prudence under the circumstances. Gautreaux, 107 F.3d at 339.
Defendant

argues

that

Plaintiff’s

claims

for

negligence

should be dismissed for lack of supporting evidence.11 Defendant
characterizes Plaintiff’s negligence claim as follows: “he was
required to handle a heavy wet line by [himself] because of the
poor condition of the fuel dock and lack of assistance of the
Dock Attendant,” who is not employed by Harvey Gulf.12 Defendant
points

to

Plaintiff’s

deposition

testimony

to

support

its

assertion, and argues that Plaintiff acknowledges that the tieup was “standard procedure” and that he received instruction
beforehand.13
The negligence claim is more involved. Wimberly claims to
have suffered a back injury on January 2, 2014, while attempting
to toss a wet two-inch nylon rope amidship in an effort to tie
off or secure the vessel upon arrival at dock, a task which was
understaffed

and

for

which

he

received

no

training,

despite

having reported for work for the first time that same day.14
Plaintiff also contends that the vessel’s captain and senior
10

Benedict on Admiralty, Vol. 1B, § 21-3 (Matthew Bender) .
Rec. Doc. No. 15 at 1.
12
Rec. Doc. No. 15-1 at 2 (internal quotations omitted).
13
Rec. Doc. No. 15 at 3 (referencing Deposition of Martin Wimberly, Rec. Doc. No. 15-4 at 23). In his deposition
testimony, Plaintiff does not state that he received instruction prior to undertaking the task at hand.
14
Rec. Doc. No. 1 at 3.
11

5

deckhand,

employees

of

Harvey

Gulf,

acted

negligently

and

contributed to Plaintiff’s injury.15 The captain, Captain Roger
Robinson improperly landed the vessel stern first,16 failed to
develop a plan for securing the vessel, to brief the crew, and
to communicate the plan to a dockworker.17
Although Plaintiff acknowledges prior experience with nylon
rope and the standard procedure for vessel tie-up without issue,
Plaintiff states in this deposition testimony that “they wanted
to

use

a

different

(doubling

up)

method

this

time,

which

required more rope,”18 because the dock was in poor condition.
Plaintiff had been attempting to “throw the line in the typical
fashion, putting the loop around the bollard.”19 Plaintiff claims
that

the

senior

deckhand,

Daniel

Malina,

directed

him

in

lassoing the rope to the bollard in the (turning and twisting)
manner or method.20 As he threw the rope, made heavier by the
rain, Plaintiff felt a pinch in the lower back and neck.21

15

Rec. Doc. No. 16 at 3.
Declaration of Captain James P. Jamison Pursuant to 28 U.S. § 1746, an expert witness with 50 years’ experience
in the maritime industry, who states that the “Captain should have tied-off bow first then used the vessel’s main
engines to bring her stern into the dock.” Rec. Doc. No. 16-1 at 4.
17
Rec. Doc. No. 1 at 2.-3.
18
Rec. Doc. No. 15-4 at 23, Martin Wimberly Deposition (Exhibit B). Plaintiff describes the motion required as a
“turning, twisting motion.”
19
Rec. Doc. No. 16-9 at 4, Martin Wimberly Deposition (Exhibit I).
20
Rec. Doc. No. 1 at 2-3; Wimberly Deposition, Rec. Doc. No. 15-4 at 24 (Exhibit B); Rec. Doc. No. 16 at 4. “We
wanted to go around the bollard and tie it off one side to the bitt and the other end back to the boat, making a Ushape around the bollard.” Rec. Doc. No. 16-9 at 6.
21
Declaration of Martin Wimberly Pursuant to 28 U.S.C. § 1746, Rec. Doc. No. 16-8 at 3 (Exhibit H).
16

6

At issue here is whether there is evidence sufficient to
create

a

factual

dispute

regarding

whether

Harvey

Gulf

was

negligent. The U.S. Fifth Circuit Court of Appeals has stated
that

a

seaman

who

simply

points

to

safer

methods,

without

showing that the method used by the employer is unsafe, does not
demonstrate an employer’s lack of ordinary prudence. Lett v.
Omega

Protein,

Inc.,

487

Fed.

App’x

839,

845

(5th

Cir.

2012)(citing Salis v. L & M Botruc Rental, Inc., 400 Fed. App’x
900, 904 (5th Cir. 2010)).
Here,

there

Plaintiff’s

is

minimally

contention

that

sufficient
the

evidence

method

in

to

which

support
he

was

instructed by the senior deckhand was unsafe. Consistently, a
medical report dated May 2, 2014, concludes: “[m]ost prominent
findings identified at the C4-5 (cervical) level characterized
by severe cord compression.”22 An earlier medical report, dated
March 11, 2014 indicates “chronic anterior wedge compression at
the thoracic level, as well as various bulge indents at the
lumbar

and

levels.23

Plaintiff’s

thoracic
negligence

claim,

As
it

Defendant
fails

to

mischaracterizes
directly

address

Plaintiff’s contention that the method was unsafe or to brief
the

specific

issue

of

whether

Plaintiff

failed

to

utilize

ordinary care by following the direction of the deckhand.
22
23

Rec. Doc. No. 16-6 at 3 (Exhibit F), MRI Spine-Cervical, Martin Roy Wimberly.
Rec. Doc. No. 16-5 at 2 (Exhibit E), MRI of the Lumbar Spine, Martin Wimberly.

7

On the Jones Act negligence claim, summary judgment must be
denied. Genuine issues of material fact remain, inter alia, as
to

any

safety

training

that

Harvey

Gulf

either

provided

or

failed to provide Wimberly beyond the standard procedure with
which Wimberley was familiar; and, whether Malina negligently
instructed Wimberly to perform the task at hand in an unsafe
manner. Cf. In re Two-J Ranch, 534 F.Supp.2d 671, 685 (W.D. La.
2008).
2. Unseaworthiness Claim
Wimberly also seeks to recover damages from the Defendant
because

of

the

claimed

unseaworthiness

of

the

defendant’s

vessel.24 A shipowner has an absolute duty to provide a seaworthy
vessel. Baker v. Raymond International, Inc., 656 F.2d 173 (5th
Cir. 1981), cert. denied, 456 U.S. 983 (1982). Although the duty
is

absolute,

it

is

a

duty

only

to

furnish

a

vessel

and

appurtenances reasonably fit for their intended use. Mitchell v.
Trawler

Racer,

Inc.,

362

U.S.

539

(1960).

The

owner

is

not

obligated to furnish an accident-free ship. Id.25
Unseaworthiness is a condition; there must be a showing
that the vessel, her equipment, or crew is defective in some
way. Usner v. Luckenback Overseas Corp., 400 U.S. 494 (1971).

24
25

Rec. Doc. No. 1 at 3.
Fifth Circuit, 2014 Civil Jury Instructions, Admiralty: Unseaworthiness 4.5.

8

The duty includes supplying an adequate and competent crew for
the task at hand. Waldron v. Moore-McCormack Lines, Inc., 386
U.S. 724 (1967). In an action for unseaworthiness, plaintiff’s
burden to establish causation is more stringent. Plaintiff must
show:

(1)

bringing

the

act

about

or

or

omission

actually

played

substantial

the

causing

a

injury;

part
and,

in
(2)

proximate cause, that is, that the injury was either a direct
result

or

a

reasonably

probable

consequence

of

the

act

or

omission.26
Consistent with the negligence claim, Plaintiff claims an
unsafe

method

of

work

rendered

the

vessel

unseaworthy.27

An

unsafe method of work can render a vessel unseaworthy. Rogers v.
Eagle Offshore Drilling Services, Inc., 764 F.2d 300, 303 (5th
Cir. 1985)(citing Luneau v. Penrod Drilling Co., 720 F.2d 625
(5th

Cir.

barely

be

1983)).
able

Given
to

bear

the

evidence

his

burden

adduced,
in

Plaintiff

showing

that

may
the

instruction on the method of work provided by a member of the
crew, played a substantial part and directly resulted in the
back

injury.

Considering

that

Plaintiff

has

responded

with

sufficient evidence to create a genuine issue of material fact
as to whether the method of work was unsafe, the Court cannot

26
27

Fifth Circuit, 2014 Civil Jury Instructions, Admiralty: Causation 4.6.
Rec. Doc. No. 16 at 17.

9

conclude that Defendants are entitled to summary judgment on
this claim.
3. Maintenance and Cure Claims
Defendant

seeks

dismissal

of

Plaintiff’s

claims

for

compensatory damages, attorney’s fees and punitive damages on
the

basis

willfully,

that

“there

wantonly,

is

no

evidence

arbitrarily

that

and

Harvey

Gulf

capriciously

has

denied

Plaintiff maintenance or cure benefits.”28 Maintenance and cure
provides a seaman who is disabled by injury or illness while in
the ship’s service with medical care and treatment and the means
of

maintaining

himself

while

he

is

recuperating.

Meche

v.

Doucet, 777 F.3d 237, 244 (5th Cir. 2015). “Maintenance is a
daily stipend for

living expenses,”

and can be recovered as

wages, whereas “cure is the payment of medical expenses.” Id.
(quoting Lodrigue v. Delta Towing, L.L.C., No. Civ.A.03–0363,
2003 WL 22999425, at *6 n. 51 (E.D.La. Dec. 19, 2003)). If the
employer has shown callousness and indifference to, or willful
and wanton disregard for, the seaman’s injuries, it is liable
for punitive damages and attorney’s fees. Bertram v. Freeport
McMoran, Inc., 35 F.3d 1008, 1012 (5th Cir. 1985); see Atl.
Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561, 2575 (2009).

28

Rec. Doc. No. 15-1 at 13.

10

As Wimberly will have the burden of proof regarding his
entitlement to maintenance and cure at the trial of this matter,
he also bears the burden of proof at the summary judgment stage
of these proceedings. Joubert v. C&C Technologies, Inc., Civ.
Action No. 6:04CV0723, 2005 WL 1830996, at *2 (W.D. La. 2005);
Freeman v. Thunder Bay Transp. Co., Inc., 735 F.Supp. 680, 681
(M.D. La. 1990). In order for Wimberly to carry his burden at
the summary judgment stage of these proceedings, Wimberly must
establish

a

genuine

issue

of

material

fact

regarding

Harvey

Gulf’s refusal to pay maintenance and cure by submitting or
referring

to

evidence

in

the

record.

Snyder

v.

L&M

Botruc

Rental, Inc., 924 F.Supp.2d 728, 736 (E.D.La. 2013). Wimberly
must show that no genuine issue of material fact exists with
respect

to

the

wages

to

which

he

may

be

entitled;

and

the

expenditures or liability incurred for medicines, nursing care,
board

and

lodging.

Joubert,

2005

WL

1830996,

at

*2;

see

M.

Norris, The Law of Seaman § 26.21 (4th ed. 1985).
According

to

Harvey

Gulf,

Plaintiff

has

received

maintenance benefits at the rate of $40 per day from January 16,
2014 until the present (March 10, 2015).29 Further, Harvey Gulf
sent cure payments to Plaintiff’s medical providers, as well as
a

reimbursement

payment

to

Plaintiff

for

out-of-pocket

cure

29

Rec. Doc. No. 15-1 at 15; Affidavit of Tami Johnston, Aucoin Claims Service, Rec. Doc. No. 15-6 (Exhibit D);
Affidativit of Cheryl Bernet, Harvey Gulf International Marine, LLC, Rec. Doc. No. 15-5 (Rec. Doc. No. C).

11

expenses.30

Plaintiff

has

acknowledged

receiving

consistent

maintenance payments.31
Plaintiff

concedes

that

his

claims

for

compensatory

damages, punitive damages, and attorney’s fees are presently not
supported

by

the

facts

because

the

opposition

acknowledges:

“[t]o date, Harvey Gulf has paid maintenance and cure so this
matter of additional damages is not at issue.”32 According to
Plaintiff, the claim was plead out of an abundance of caution,
and

cautionary

summary

language

judgment.33

in

the

Summary

Complaint

judgment

is

is

not

basis

appropriate

for

here

as

Plaintiff has not carried his burden of proof to defeat summary
judgment. Cf. Snyder, 924 F.Supp.2d at 737 (dismissing claim for
maintenance
plaintiff
payments

and

cure

simply
and

on

motion

claimed

that

he

that

had

yet

for

summary

defendant
to

reach

judgment

where

begrudgingly
maximum

made

medical

improvement). Wimberly has pointed to no evidence in the record
establishing a genuine issue of material fact for trial that
Harvey Gulf failed to fulfill its obligation to pay maintenance
and cure. Therefore, summary judgment is appropriate to dismiss
Wimberly’s claims

for compensatory damages, punitive damages,

and attorney’s fees for failure to pay maintenance and cure. Id.

30

Rec. Doc. No. 15-1 at 15; Affidavit of Tami Johnston, Aucoin Claims Service, Rec. Doc. No. 15-6 (Exhibit D).
Rec. Doc. No. 15-4 at 60, Martin Wimberly Deposition (Exhibit D).
32
Rec. Doc. No. 16 at 16-19.
33
Rec. Doc. No. 16 at 16-19.
31

12

IV.

CONCLUSION

Accordingly, and for the reasons enumerated above,
IT IS ORDERED that the Motion for Partial Summary Judgment
be DENIED in part, and GRANTED in part. IT IS FURTHER ORDERED
that

Wimberly’s

claims

for

compensatory

damages,

punitive

damages, and attorney’s fees arising from Harvey Gulf’s alleged
failure to pay maintenance and cure be DISMISSED.

New Orleans, Louisiana, this 27th day of March, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

13