Hancock et al v. Higman Barge Lines, Inc.

Filing 45

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.

CIVIL ACTION

VERSUS

NO: 16-14998

HIGMAN BARGE LINES, INC., ET
AL.

SECTION: “J” (1)

ORDER AND REASONS
Before the Court is a Motion for Partial Judgment on the
Pleadings

(Rec.

Doc.

17)

filed

by

Higman

Barge

Lines,

Inc.

(“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
sixteen

1

foot

mudboat

in

and

around

Rec. Doc. 1 at 3-5.

1

Terrebonne

and

Lafourche

Parishes in Louisiana.

After they were finished frogging, their

mudboat ran out of fuel in a canal near the GIW in Lafourche
Parish.

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
empty barges.”

The mudboat was immobilized by the current and

used a light to signal a warning to the M/V Trinity Bay.

The M/V

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
Hancock.

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.

The M/V

Trinity Bay stopped its forward movement and pushed the barges
away.

Ethan Hancock’s body was not found until the next morning

underneath one of the barges pushed by the M/V Trinity Bay.
Plaintiffs
unseaworthiness

filed
on

the

this

suit,

part

of

alleging
Higman.

negligence
Plaintiffs

and
seek

compensatory and punitive damages, and have brought a wrongful
death and survival action on behalf of Ethan Hancock.

Higman has

filed the instant motion for judgment on the pleadings, requesting
2

relief in three areas.

Specifically, Higman moves the Court to

dismiss Plaintiffs’ claims for breach of the duty of seaworthiness,
claims

for

lost

wages

and

future

wage

earning

capacity

made

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.
LEGAL STANDARD
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
judicially

noticed

facts.”

Hebert

Abstract

Co.

v.

Touchstone

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
3

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.
Iqbal,

556

U.S.

at

678.

“[C]onclusory

allegations

or

legal

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).
DISCUSSION
I.

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
them.

In

opposition,

Plaintiffs

argue

that

the

duty

of

seaworthiness has been extended to third parties and that they
qualify for such an extension.
Under

maritime

law,

“[a]

shipowner

has

nondelegable duty to provide a seaworthy vessel.”
4

an

absolute
Brister v.

A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991).

“Unseaworthiness

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.”

Id.

This warranty is “owed to a narrow

class of maritime workers-those who can claim ‘seaman’ status under
the law.”

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

Smith

v. Harbor Towing & Fleeting, Inc., 910 F.2d 312, 313 (5th Cir.
1990) (quoting Sieracki, 328 U.S. 85, 99 (1946)).

However, this

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.”

Yamaha Motor

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

2

Plaintiffs who meet this qualification are often called “Sieracki Seaman.”
Plaintiffs make no argument here that Ethan Hancock was a Sieracki Seaman.

5

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
LHWCA.

They agree that he qualifies as a “nonseafarer.”

See

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.”)

The

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;
it

simply

precludes

Plaintiffs

from

relying

on

the

duty

of

seaworthiness rather than satisfying the elements of negligence.
II.

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
6

available under Louisiana law or general maritime law.

It argues

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
the decedent.”

Thus, Plaintiffs argue that they can claim damages

for loss of support using Louisiana’s wrongful death statute. 3
Plaintiffs’
Louisiana law.

claims

for

non-pecuniary

damages

rely

on

See Calhoun, 516 U.S. at 206 (holding that state

law may supplement general maritime law in wrongful death actions
based

on

the

death

of

nonseafarers

in

territorial

waters).

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).

7

arise from a common tort: the survival action and the wrongful
death action.

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.”

Id.

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
Hancock.

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
dismissed.

“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
813, 818.

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.

Here, Plaintiffs

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
8

Ethan

Hancock’s

body

was

located

early

the

next

morning.

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
another vehicle).

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.

“The

elements of damages for wrongful death are loss of love, affection,
companionship, services and support, as well as medical and funeral
expenses.”

Walker v. Yellow Freight Sys., Inc., No. Civ. A. 98-

3565, 1999 WL 955364, at *3 (E.D. La. Oct. 19, 1999).

Loss of

earning capacity is not an independent element of a wrongful death
claim.

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
9

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
relevant

to

‘the

possibility

of

a

decrease

or

increase

in

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
support.”

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.”

Quatroy v.

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.”

Id.

Plaintiffs do not allege that five-

year-old Ethan Hancock provided previous support, nor do they argue

10

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
dismissed.

It argues that Plaintiffs’ allegations do not fall

within

narrow

the

subset

of

actions

for

which

Louisiana

recognizes the availability of punitive damages.

law

Higman also

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.

Plaintiffs

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.

11

However, Plaintiffs have alleged facts sufficient to make a
claim for punitive damages under general maritime law.

In order

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
Cir. 1972)).

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.

The complaint

alleges that M/V Trinity continued to bear down upon Darrell and
Ethan Hancock, which caused them to evacuate the mudboat.

At this

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.
CONCLUSION
Accordingly,
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.

12

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 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

13