Bratkowski v. Aspen Insurance UK Ltd.

Filing 18

ORDER & REASONS granting in part and denying in part 12 Motion for Summary Judgment. The plaintiff's Jones Act, unseaworthiness, and maintenance and cure claims against Aspen are hereby dismissed, but Bratkowsi's failure to pay maintenance and cure claims are viable. Signed by Judge Martin L.C. Feldman on 6/17/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNETH H. BRATKOWSKI

CIVIL ACTION

v.

NO. 15-900

ASPEN INSURANCE UK, LTD.

SECTION "F"(1)
ORDER AND REASONS

Before the Court is Aspen Insurance UK, Ltd.'s motion for
summary judgment.

For the reasons that follow, the motion is

GRANTED in part and DENIED in part.
Background
This litigation under the Louisiana Direct Action Statute
arises out of a personal injury lawsuit brought by the plaintiff
against his employer; the personal injury lawsuit has been stayed
due to ongoing Chapter 11 bankruptcy proceedings.1
Kenneth H. Bratkowski filed suit against his employer, Cal
Dive International, Inc., after allegedly suffering an injury
during the course of his employment.

He was employed as a diver by

Cal Dive International, Inc. and assigned to the M/V CAL DIVER I.
On August 6, 2012 Mr. Bratkowski was on a routine dive to re-route

1

Bratkowski v. Aspen Insurance, Civil Action Number 15900, was transferred to this Section of Court as related to
Bratkowski v. Cal Dive, Civil Action Number 15-294. The cases have
not been consolidated.
1

Allison Pipeline when he began to pull open the bell hatch, which
had begun to open automatically due to pressures equalizing. While
pulling open the bell hatch, which weighed more than 70 pounds,2
Mr. Bratkowski severely injured his back at the L4 and L5-S1 disc,
affecting his right hip, leg, and foot.
On

January

30,

2015

Mr.

Bratkowski

sued

Cal

Dive

International, Inc., seeking to recover for under the Jones Act for
negligence, as well as under general maritime law for Cal Dive's
unseaworthy vessel, and, finally, for maintenance and cure. In the
personal injury case, Civil Action Number 15-294, Mr. Bratkowski
seeks $15,000,000 in damages due to the severity of his injuries.
In particular, he claims that he is required to lie down every hour
for approximately 15 minutes to relieve pain; he has lost full
function of his right leg; he must stay medicated to help alleviate
his

pain;

he

experiences

constant

tingling

in

his

foot

and

radiating pain through the entirety of his leg if his foot is
touched.
On

March

16,

2015

Cal

Dive

filed

a

Notice

of

Filing

Bankruptcy, notifying the Court and the plaintiff that it had filed
on March 3, 2015, pursuant to Chapter 11, a voluntary petition for
bankruptcy in the District of Delaware.

A few weeks later, Mr.

Bratkowski sued Aspen Insurance UK Ltd., Cal Dive's insurer,
alleging the same claims arising from the same August 6, 2012

2

The lifting limit for divers is 50 pounds.
2

incident.3

Bratkowski filed an amended complaint on April 14,

2015, in which he adds more particular allegations concerning Cal
Dive's failure to provide maintenance and cure in Louisiana.
Meanwhile, in the bankruptcy proceeding in Delaware, Mr. Bratkowski
has filed a motion to lift the stay of proceedings pursuant to 11
U.S.C. § 362(d).

From this Court Cal Dive requested an order

staying Bratkowski's lawsuit against it in light of the bankruptcy
proceeding pending in Delaware. The stay, applicable only to Civil
Action Number 15-294, was granted on April 20, 2015.

Aspen

Insurance now seeks summary judgment dismissing the plaintiff's
complaint against it in Civil Action Number 15-900.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine dispute of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

3

Anderson v.

Bratkowski v. Aspen Insurance, Civil Action Number 15900, was transferred to this Section of Court as related to
Bratkowski v. Cal Dive, Civil Action Number 15-294. The cases have
not been consolidated.
3

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
defeat

summary

judgment

"[T]he nonmoving party cannot

with

conclusory

allegations,

unsubstantiated assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).

In deciding whether a fact

issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the non-moving party.

4

Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must
"resolve factual controversies in favor of the nonmoving party," it
must do so "only where there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir.
2013)(internal quotation marks and citation omitted).
II.
Aspen

Insurance

UK,

Ltd.

initially

submits

that

summary

judgment dismissing Bratkowski's claims (for Jones Act negligence,
unseaworthiness, and maintenance and cure) against it under the
Louisiana Direct Action Statute is warranted because neither the
policies of insurance it issued to Cal Dive, nor the accident
giving rise to the plaintiff's injuries occurred in Louisiana.
Aspen submits that the policies of insurance it issued to Cal Dive
were issued and delivered in Houston, Texas, not Louisiana; and the
accident sued upon occurred on the high seas on the vessel, CAL
DIVER I, located in MP block 300, which is on the Outer Continental
Shelf and, therefore not within the territorial waters of the State
of Louisiana.
The Louisiana Direct Action Statute, La.R.S. 22:1659, permits
an action against an insurer of a tortfeasor if the plaintiff can
establish that (1) the accident or injury occurred in Louisiana,
(2) the policy was written in Louisiana, or (3) the policy was
delivered in Louisiana.

Grubbs v. Gulf International Marine Inc.,

5

13 F.3d 168, 170 (5th Cir. 1994).

"[I]t is settled law that the

Direct Action Statute can apply to federal maritime actions."

See

Chacon v. Global International Marine, Inc., No. 06-1645, 2007 WL
4206857, at *1 (E.D. La. Nov. 21, 2007); see also Grubbs, 13 F.3d
at 171.

Although the payment of maintenance and cure benefits is

a

sounding

claim

in

contract,

an

action

maintenance and cure is a tort action.

for

failure

to

pay

See Chacon, 2007 WL

4206857, at *2 (citations omitted).
Here, it is undisputed that the accident giving rise to
Bratkowski's Jones Act and unseaworthines claims occurred on the
outer continental shelf, not in Louisiana.

Accordingly, those

claims may not be pursued by way of direct action against Aspen.
However, it is likewise undisputed that Bratkowski's claims for
failure to pay maintenance and cure sounds in tort.

Insofar as he

alleges in his amended complaint that the injury occurred in
Louisiana, and there has been no discovery in this matter,4 Aspen
is

not

entitled

to

judgment

as

4

a

matter

of

law

dismissing

The parties quarrel about whether or not it is
appropriate for discovery to commence. Aspen apparently convinced
the Case Manager of Section F to continue a previously-scheduled
scheduling conference in order to avoid its discovery obligations.
He had no authority to do so without Court permission. The Court
takes no position on whether or not, if requested by proper motion,
Aspen would be entitled to a stay of discovery given the related
bankruptcy proceedings. However, counsel for Aspen is admonished
not to attempt to obtain through Court staff what should be
accomplished by directing to the Court appropriate briefing and
motion practice.
6

Bratkowski's failure to pay maintenance and cure claim.5
Accordingly, the defendant's motion for summary judgment is
GRANTED in part and DENIED in part.

The plaintiff's Jones Act,

unseaworthiness, and maintenance and cure claims against Aspen are
hereby dismissed, but Bratkowsi's failure to pay maintenance and
cure claims are viable.6

New Orleans, Louisiana, June 17, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

5

Aspen appears to concede this in its reply papers:
"Whether there was a wrongful termination [of maintenance and cure]
and whether there was an injury in Louisiana is a fact issue, which
will be dealt with in subsequent proceedings and further motion
practice."
6

Insofar as Aspen limply challenges the technical
sufficiency of Bratkowski's allegations concerning the direct
action statute, the Court declines to address the argument on a
motion for summary judgment.
In light of Aspen's reticence to
engage in discovery, Bratkowsi may be afforded an opportunity to
amend his complaint to cure any technical deficiencies concerning
jurisdictional allegations or allegations addressing the direct
action statute.
7