Mays v. C-Dive, L.L.C. et al

Filing 134

ORDER AND REASONS denying 90 Motion for Partial Summary Judgment as set forth in document. Signed by Judge Jane Triche Milazzo. (Reference: All Cases)(ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JASON MAYS

CIVIL ACTION
NO: 16-13139
C/W: 16-13318, 16-13952,
16-13951, 17-668
RE: all

VERSUS

C-DIVE LLC ET AL.

SECTION “H” (5)
ORDER AND REASONS

Before the Court is C-Dive LLC’s Motion for Partial Summary Judgment
on Jones Act Negligence (Doc. 90). For the following reasons, the Motion is
DENIED.
BACKGROUND
This is a consolidated action arising from a pipeline explosion. The
remaining plaintiff, Adam Zima, 1 alleges that he was injured while working
for C-Dive, LLC (“C-Dive”) aboard its vessel, the DSV MS KERCI.
The crew of the DSV MS KERCI was charged with abandoning a pipeline
owned by Gulf South Pipeline Company, LP (“Gulf South”) on the seabed of the
Gulf of Mexico. On August 25, 2015, the crew began jetting the seabed in order
to expose the pipeline to be abandoned. C-Dive was aware that there were

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Plaintiffs Jason Mays, Brian Beadell, and Matthew Boyd have settled their claims in this
matter.

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numerous active pipelines in the area surrounding the pipeline to be
abandoned. During the jetting process, C-Dive found that the pipeline that was
being uncovered by the divers on the seabed was different from what was
depicted in the area maps provided to them by Gulf South. C-Dive was unsure
whether it was uncovering the pipeline that it had been tasked with
abandoning. C-Dive eventually requested additional maps, but continued
jetting the same pipeline. On August 26, the divers uncovered a broken standoff, or support piece, on the pipeline they were uncovering, but again the jetting
process continued. Later that day, an explosion occurred, resulting in a
massive wave and fireball hitting the back of the MS KERCI. It was later
determined that the explosion was the result of a gas release from an end
connector that had separated from the active pipeline that C-Dive had
uncovered. Zima was injured while assisting other crewmembers who had
abandoned ship back onto the vessel.
Plaintiff brings claims for negligence, Jones Act negligence, and
unseaworthiness against C-Dive and Gulf South. C-Dive moves for a partial
summary judgment dismissing Plaintiff’s Jones Act negligence claim and
holding that C-Dive did not cause the explosion. Plaintiff and Gulf South
oppose this Motion.
LEGAL STANDARD
Summary judgment is appropriate if “the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations. . . , admissions, interrogatory answers, or other materials” “shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 2 A genuine issue of fact exists only “if
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Fed. R. Civ. Pro. 56.

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the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” 3
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 4 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 5 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 6 “In response to a
properly supported motion for summary judgment, the nonmovant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the nonmovant on all issues as to which the
nonmovant would bear the burden of proof at trial.” 7 The Court does “not . . .
in the absence of any proof, assume that the nonmoving party could or would
prove the necessary facts.” 8 Additionally, “[t]he mere argued existence of a
factual dispute will not defeat an otherwise properly supported motion.” 9

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

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LAW AND ANALYSIS
Plaintiff and Gulf South argue that C-Dive is liable under the Jones Act
for its negligence in causing the explosion during which Plaintiff was injured.
They allege that C-Dive was negligent in (1) continuing to jet despite being
unsure whether it was jetting the correct pipeline, (2) failing to invoke stop
work authority when a diver discovered a broken stand-off on the pipeline, and
(3) failing to invoke stop work authority when its crew realized it had
inadequate drawings of the pipelines in the area. C-Dive argues that the scope
of work for the project required it to jet the entire area surrounding the pipeline
to be abandoned and therefore it was not negligent in jetting the adjacent
pipeline. It also points out that even Gulf South’s engineering expert found
that the broken stand-off did not prevent the end connector from performing
as designed.
“The Jones Act provides a cause of action in negligence for ‘any seaman’
injured ‘in the course of his employment.’” 10 “A seaman is entitled to recovery
under the Jones Act . . . if his employer’s negligence is the cause, in whole or
in part, of his injury.” 11 “The standard of causation in Jones Act cases is not
demanding.” 12 Even so, the negligence must rise beyond mere but for causation
and be a legal cause of the injury. 13 A seaman need only show that “employer
negligence played any part, even the slightest, in producing the injury.” 14
“Although in Jones Act cases a ‘jury is entitled to make permissible inferences
from unexplained events,’ summary judgment is nevertheless warranted when

Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (quoting 46 U.S.C. § 688(a)).
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997).
12 Johnson v. Cenac Towing, Inc., 544 F.3d 296, 302 (5th Cir. 2008).
13 Id.
14 Johnson v. Horizon Offshore Contractors, Inc., No. 06-10689, 2008 WL 916256, at *4 (E.D.
La. Mar. 31, 2008).
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there is a complete absence of proof of an essential element of the nonmoving
party’s case.” 15
Plaintiff and Gulf South present the following evidence to prove
Plaintiff’s Jones Act claim.
• C-Dive’s engineering expert indicated that a broken stand-off can
result in stored energy in the pipeline.
• Plaintiff Adam Zima testified that a broken stand-off can cause
damage to the pipe and should warrant the use of stop work
authority.
• C-Dive’s Dive Superintendent, Jerrico Jeansonne, stated that it is
his belief that C-Dive’s jetting operations removed the support
underneath the active pipeline and allowed the end connector to
separate.
• C-Dive’s Root Cause Report identifies a lack of accurate maps as a
contributing cause of the accident. It counsels that in the future a
refusal to submit the latest drawings of a work area will trigger
stop work authority.
• C-Dive had access to the OARS system in the dive shack, which
would have displayed the location of all the pipelines in the area,
but it was not utilized.
• Gulf South’s engineering expert concluded that there was no
evidence that there were any defects in the end connector prior to
the incident and that instead “external forces applied to the
facilities at the time of the incident” were the likely cause of the
end connector separating from the pipe. It is not disputed that C-

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Id.

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Dive was applying external forces, i.e. jetting, to the pipeline at the
time the end connector separated and resulted in an explosion.
Accordingly, Plaintiff and Gulf South have provided sufficient evidence
to create a material issue of fact as to whether C-Dive was negligent and
whether that negligence played any part in Plaintiff’s injury. This is not a case
in which there is a complete absence of proof of Plaintiff’s Jones Act claim such
that summary judgment is warranted. Further, determinations of negligence
and causation are questions of fact best decided at a trial on the merits. 16
CONCLUSION
For the foregoing reasons, C-Dive’s Motion is DENIED.

New Orleans, Louisiana this 2nd day of August, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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GIC Servs., L.L.C. v. Freightplus USA, Inc., 866 F.3d 649, 658 (5th Cir. 2017).

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