Hancock et al v. Higman Barge Lines, Inc.
ORDER AND REASONS. It is ORDERED that Higman's Motion for Partial Judgment on the Pleadings (Rec. Doc. 17 ) is GRANTED in part and DENIED in part. It is FURTHER ORDERED that Plaintiffs' claims against Higman based upon the duty of seawor thiness are DISMISSED. It is FURTHER ORDERED that Plaintiffs' claims against Higman for lost wages and future wage earning capacity are DISMISSED. It is FURTHER ORDERED that Higman's motion to dismiss Plaintiffs' claim for punitive dam ages is DENIED. It is FURTHER ORDERED that the Motion in Limine to Exclude Testimony of G. Richard Thompson (Rec. Doc. 19 ) is DENIED AS MOOT. It is FURTHER ORDERED that the Motion for Leave to File Reply in Support of Motion in Limine to Exclude Testimony of G. Richard Thompson (Rec. Doc. 39 ) is DENIED AS MOOT. Signed by Judge Carl Barbier. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARRELL HANCOCK, ET AL.
HIGMAN BARGE LINES, INC., ET
SECTION: “J” (1)
ORDER AND REASONS
Before the Court is a Motion for Partial Judgment on the
(“Higman”), an opposition thereto (Rec. Doc. 29) filed by Darrell
Hancock and Jennifer Hancock, individually and on behalf of Ethan
Hancock (“Plaintiffs”), and a reply (Rec. Doc. 38) filed by Higman.
Having considered the motion and legal memoranda, the record, and
the applicable law, the Court finds that the motion should be
GRANTED in part and DENIED in part.
FACTS AND PROCEDURAL BACKGROUND
This case arises out of a tragic incident involving two
vessels on the Gulf Intercoastal Waterway (“GIW”) and resulting in
the death of a five-year-old boy.
Plaintiffs’ complaint alleges
as follows: 1 On the evening of July 30, 2016, Darrell Hancock took
his son, Ethan Hancock, on a fishing or “frogging” trip in a
Rec. Doc. 1 at 3-5.
Parishes in Louisiana.
After they were finished frogging, their
mudboat ran out of fuel in a canal near the GIW in Lafourche
Darrell Hancock attempted to manually pilot the mudboat
across the GIW in order to reach a docking area where they could
await more fuel.
At this point, a tugboat owned by Higman named
the M/V Trinity Bay “began bearing down on them while pushing two
The mudboat was immobilized by the current and
used a light to signal a warning to the M/V Trinity Bay.
Trinity Bay’s captain and crew saw Darrell and Ethan Hancock and
noticed that they were in distress.
Instead of slowing down, the
M/V Trinity Bay continued to move rapidly toward Darrell and Ethan
Darrell Hancock then grabbed Ethan and jumped from the
mudboat into waters of the GIW.
The father and son were both
sucked under one of the barges being pushed by M/V Trinity Bay and
they were separated from each other.
Darrell Hancock pleaded for
help from the captain and crew of the M/V Trinity Bay.
Trinity Bay stopped its forward movement and pushed the barges
Ethan Hancock’s body was not found until the next morning
underneath one of the barges pushed by the M/V Trinity Bay.
compensatory and punitive damages, and have brought a wrongful
death and survival action on behalf of Ethan Hancock.
filed the instant motion for judgment on the pleadings, requesting
relief in three areas.
Specifically, Higman moves the Court to
dismiss Plaintiffs’ claims for breach of the duty of seaworthiness,
pursuant to the wrongful death and survival death actions on behalf
Ethan Hancock, and claims for punitive damages.
The motion is now
before the Court on the briefs and without oral argument.
Rule 12(c) provides that “[a]fter the pleadings are closed—
but early enough not to delay trial—a party may move for judgment
on the pleadings.” Fed. R. Civ. P. 12(c). A motion brought pursuant
to Rule 12(c) “is designed to dispose of cases where the material
facts are not in dispute and a judgment on the merits can be
rendered by looking to the substance of the pleadings and any
Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990).
Courts evaluate a motion under Rule 12(c) for judgment on the
pleadings using the same standard as a motion to dismiss under
Rule 12(b)(6) for failure to state a claim. Doe v. MySpace, Inc.,
528 F.3d 413, 418 (5th Cir. 2008) (citing Johnson v. Johnson, 385
F.3d 503, 529 (5th Cir. 2004)). To survive a Rule 12(b)(6) motion
to dismiss, the plaintiff must plead enough facts to “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is facially plausible when the plaintiff
pleads facts that allow the court to “draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. A
court must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Baker v. Putnal,
75 F.3d 190, 196 (5th Cir. 1996). The court is not, however, bound
to accept as true legal conclusions couched as factual allegations.
conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Taylor v. Books A Million, Inc.,
296 F.3d 376, 378 (5th Cir. 2002).
Duty of Seaworthiness
In their complaint, Plaintiffs allege that “the vessel, M/V
Trinity Bay, its appurtenances, barges being pushed, and/or the
captain and crew were unseaworthy” and that this was the proximate
cause of Plaintiffs’ injuries. Higman argues that this claim fails
as a matter of law because neither Darrell nor Ethan Hancock were
Jones Act seaman and therefore no duty of seaworthiness is owed to
seaworthiness has been extended to third parties and that they
qualify for such an extension.
nondelegable duty to provide a seaworthy vessel.”
A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991).
is predicated without regard to fault or the use of due care,” and
it is for this reason that “the seaworthiness issue is treated
like a breach of warranty, rather than the narrower duty-breach
inquiry for negligence.”
This warranty is “owed to a narrow
class of maritime workers-those who can claim ‘seaman’ status under
1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6–
27 (5th ed. 2013).
The seaworthiness cause of action may only be
brought by a vessel’s crew member who was injured on the vessel.
Speer v. Taira Lynn Marine, Ltd., Inc., 116 F. Supp. 2d 826, 829,
830 (S.D. Tex. 2000).
In Sea Shipping v. Sieracki, the Supreme
Court expanded the seaworthiness cause of action to “longshoremen
‘doing a seaman’s work and incurring a seaman’s hazards.” 2
v. Harbor Towing & Fleeting, Inc., 910 F.2d 312, 313 (5th Cir.
1990) (quoting Sieracki, 328 U.S. 85, 99 (1946)).
extension was effectively overruled by the 1972 amendments to the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and the
Court has “declined to extend the duty further.”
Corp., U.S.A. v. Calhoun, 516 U.S. 199, 208 n.6; see also Kermarec
v. Compagnie Generale Transatlantique, 358 U.S. 625, 629 (1959)
(holding that the ship owner did not owe a duty of seaworthiness
to the plaintiff who was not a member of the class of people who
Plaintiffs who meet this qualification are often called “Sieracki Seaman.”
Plaintiffs make no argument here that Ethan Hancock was a Sieracki Seaman.
had an “absolute right to a seaworthy ship” because he “was aboard
not to perform ship’s work, but simply to visit a friend”).
The parties here agree that five-year-old Ethan Hancock was
neither a Jones Act seaman nor a longshore worker covered by the
They agree that he qualifies as a “nonseafarer.”
Calhoun, 516 U.S. at 205 n.2 (“By ‘nonseafarers,’ we mean persons
who are neither seamen covered by the Jones Act, 46 U.S.C.App. §
688 (1988 ed.), nor longshore workers covered by the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.”)
duty of seaworthiness does not extend to Ethan Hancock, who was a
nonseafarer and was not working aboard the M/V Trinity Bay at the
time of the incident.
See Martin v. Fab-Con, Inc., 7 F. Supp. 3d
645, 651 (E.D. La. 2014) (“The Court's finding that plaintiff is
not a Jones Act seaman also means that plaintiff's unseaworthiness
claim against [defendant] must fail.”)
This holding does not
affect Plaintiffs’ claims against Higman sounding in negligence;
seaworthiness rather than satisfying the elements of negligence.
Loss of Wages and Future Wage Earning Capacity
Plaintiffs’ complaint makes a claim for loss of wages and
wage earning capacity.
Higman moves the Court to dismiss this
claim insofar as it is made pursuant to Ethan Hancock’s wrongful
death and survival actions.
Higman argues that this relief is not
available under Louisiana law or general maritime law.
that Plaintiffs cannot prevail on a claim for loss of wages through
the survival action for two reasons: first, Plaintiffs have not
alleged that Ethan Hancock was earning wages and second, the period
between the incident and Ethan’s death was too brief to allow for
any loss of wages.
Higman also argues that the claim for lost
wages and earning capacity fails under the wrongful death action
because Plaintiffs have not demonstrated that Ethan Hancock had
provided Plaintiffs with actual prior support.
In their opposition, Plaintiffs argue that Louisiana law
allows for loss of support claims irrespective of whether the
decedent had earnings.
They also argue that loss of support
damages may be available even without a “wholesale dependency on
Thus, Plaintiffs argue that they can claim damages
for loss of support using Louisiana’s wrongful death statute. 3
See Calhoun, 516 U.S. at 206 (holding that state
law may supplement general maritime law in wrongful death actions
Louisiana law recognizes two separate and distinct actions that
3 Plaintiffs also argue that both Louisiana law and maritime law recognize the
right to recovery for loss of inheritance in a wrongful death action. However,
no such claim is present in Plaintiffs’ complaint.
Any claim for loss of
inheritance in this case would be entirely too speculative to withstand a motion
to dismiss. See Tallentire v. Offshore Logistics, Inc., 800 F.2d 1390, 1392
(5th Cir. 1986).
arise from a common tort: the survival action and the wrongful
Taylor v. Giddens, 618 So. 2d 834, 840 (La. 1993).
The survival action provides recovery “for the damages suffered by
the victim from the time of injury to the moment of death.” Taylor,
618 So. 2d at 840.
“The survival action comes into existence
simultaneously with the existence of the tort and is transmitted
to certain designated beneficiaries upon the victim’s death.”
The wrongful death action, on the other hand, “compensates the
beneficiaries for their own injuries suffered as a result of the
victim’s death.” Walls v. Am. Optical Corp., 98-0455 (La. 9/8/99),
740 So. 2d 1262, 1269-70.
Plaintiffs have brought a survival
action and a wrongful death action in this case on behalf of Ethan
See La. Civ. Code arts. 2315.1, 2315.2.
Higman argues that any claim for loss of wages and wage
earning capacity made pursuant to the survival action should be
“The elements of damage for the survival action are
pain and suffering, loss of earnings, and other damages sustained
by the victim up to the moment of death.”
Broussard v. Med.
Protective Co., 2006-331 (La. App. 3 Cir. 2/21/07), 952 So. 2d
However, a survival action only allows for recovery
“for the damages suffered by the victim from the time of injury to
the moment of death.”
Taylor, 618 So. 2d at 840.
allege that the incident involving the M/V Trinity Bay and Darrell
Hancock’s mudboat occurred on the night of July 30, 2016 and that
Plaintiffs have not alleged that enough time elapsed between the
incident and Ethan Hancock’s death to provide for an award for
loss of earnings.
See Hollingsworth v. State Through Dep't of
Transp. & Dev., 95-285 (La. App. 3 Cir. 10/4/95), 663 So. 2d 357,
358, 361 (holding that the victim did not survive long enough to
have suffered any loss of earnings when he died “immediately”
following a collision between the motorcycle he was driving and
More importantly, the complaint alleges that
Ethan Hancock was five years old at the time of this tragic
incident and makes no allegation that he had been earning an income
prior to this death.
For these reasons, Plaintiffs’ claim for
loss of wages and wage earning capacity pursuant to the survival
action must be dismissed.
Plaintiffs’ claims for loss of wages and wage earning capacity
is also made pursuant to their wrongful death action.
elements of damages for wrongful death are loss of love, affection,
companionship, services and support, as well as medical and funeral
Walker v. Yellow Freight Sys., Inc., No. Civ. A. 98-
3565, 1999 WL 955364, at *3 (E.D. La. Oct. 19, 1999).
earning capacity is not an independent element of a wrongful death
See Mistich v. Volkswagen of Germany, Inc., 94-0226 (La.
App. 4 Cir. 6/25/97), 698 So. 2d 47, 51 (“[W]hile loss of support
is a recognized element of damages for wrongful death we are not
aware of any authority which recognizes loss of earning capacity
as an element.”)
To the extent that Louisiana law recognizes loss
of earning capacity in the wrongful death action, it is a factor
to be considered in the loss of support element.
WL 955364, at *5 (E.D. La. Oct. 19, 1999)
See Walker, 1999
(“The Court concludes
that, under Louisiana law, loss of earning capacity may be factored
into a loss of support calculation, since earning capacity is
earnings.’”); Moore v. Chrysler Corp., 596 So. 2d 225, 240 (La. 2
Cir. App. 1992) (“Loss of future support may include the earning
capacity of the victim as well as the actual lost earnings.”)
Here, Plaintiffs have not stated a claim for loss of support
under the wrongful death action, which is required in order to
seek loss of wages and wage earning capacity.
A plaintiff who
brings a claim for loss of support “must show actual prior monetary
Williams v. City of New Orleans, 433 So. 2d 1129, 1137
(La. 4 Ct. App. 1983).
These damages are intended “to compensate
a survivor for the loss of the decedent’s support.”
Jefferson Par. Sheriff's Office, No. CIV.A. 04-1425, 2009 WL
961261, at *5 (E.D. La. Apr. 7, 2009).
A plaintiff who cannot
demonstrate prior support “has suffered no compensable loss on
this element of damages.”
Plaintiffs do not allege that five-
year-old Ethan Hancock provided previous support, nor do they argue
as much in their opposition to Higman’s motion.
Thus, their claim
for loss of wages and wage earning capacity is dismissed.
III. Punitive Damages
Plaintiffs’ complaint alleges that “[t]he wanton and reckless
actions and inactions of [Higman] along with the unseaworthy
condition of the vessel . . . rise to the level that imposition of
punitive damages [is] appropriate.” (Rec. Doc. 17-1 at 8.) Higman
argues that Plaintiffs’ claims for punitive damages should be
It argues that Plaintiffs’ allegations do not fall
recognizes the availability of punitive damages.
argues that Plaintiffs have failed to allege facts that satisfy
the standard for punitive damages under maritime law.
Plaintiffs have implicitly conceded that they have no claim
for punitive damage based upon Louisiana law.
Louisiana has a
general public policy against punitive damages, and they are only
available when expressly authorized by statute.
Ross v. Conoco,
Inc., 2002-0299 (La. 10/15/02), 828 So. 2d 546, 555.
do not identify any statute or Civil Code article upon which to
base a request for punitive damages.
2315.3, 2315.4, 2315.7, 2315.8.
See La. Civ. Code arts.
Any claim for punitive damages
made pursuant to Louisiana law must be dismissed.
However, Plaintiffs have alleged facts sufficient to make a
claim for punitive damages under general maritime law.
to satisfy this standard, the plaintiff must allege that the
defendant engaged in “behavior that is more than merely negligent;
rather, [the court] looks for ‘gross negligence’. . . , ‘reckless
or callous disregard for the rights of others’ . . . , or ‘actual
malice or criminal indifference.”
Maritrans Operating Partners v.
Diana T, No. CIV. A. 97-1916, 1999 WL 144458, at *7 (E.D. La. Mar.
15, 1999) (citing In re Marine Sulphur Queen, 460 F.2d 89, 105 (2d
Here, Plaintiffs allege that the M/V Trinity’s
captain and the crew saw Darrell and Ethan Hancock in their
mudboat, but that the ship did not slow down.
alleges that M/V Trinity continued to bear down upon Darrell and
Ethan Hancock, which caused them to evacuate the mudboat.
stage in litigation, the Court is not prepared to declare that
these allegations, taken as true, fail to state a claim for which
punitive damages may be appropriate under maritime law.
IT IS ORDERED that Higman’s Motion for Partial Judgment on
the Pleadings (Rec. Doc. 17) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Plaintiffs’ claims against Higman
based upon the duty of seaworthiness are DISMISSED.
IT IS FURTHER ORDERED that Plaintiffs’ claims against Higman
for lost wages and future wage earning capacity are DISMISSED.
Plaintiffs’ claim for punitive damages is DENIED.
IT IS FURTHER ORDERED that the Motion in Limine to Exclude
Testimony of G. Richard Thompson (Rec. Doc. 19) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Motion for Leave to File Reply
in Support of Motion in Limine to Exclude Testimony of G. Richard
Thompson (Rec. Doc. 39) is DENIED AS MOOT.
New Orleans, Louisiana this 18th day of August, 2017.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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