Barrios et al v. Centaur, LLC et al
Filing
99
ORDER AND REASONS - IT IS ORDERED that Centaur's Motion for Summary Judgment (Rec. Doc. 72 ) is DENIED; River Venture's Motion for Partial Summary Judgment (Rec. Doc. 75 ) is GRANTED; and Centaur's Motion for Summary Judgment on River Venture's Cross-Claim (Rec. Doc. 85 ) is GRANTED, as set forth in document. River Venture's Cross-Claim against Centaur is DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo on 10/22/2018. (sa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEVIN BARRIOS ET AL.
CIVIL ACTION
VERSUS
NO: 17-585
CENTAUR, LLC ET AL.
SECTION: “H”(1)
ORDER AND REASONS
Before the Court are Defendant Centaur LLC’s Motion for Summary
Judgment (Doc. 72); Defendant River Ventures, LLC’s Partial Motion for
Summary Judgment (Doc. 75); and Centaur LLC’s Motion for Summary
Judgment on River Venture’s Cross-Claim (Doc. 85). For the following reasons,
Centaur’s Motion for Summary Judgment is DENIED; River Venture’s Motion
for Partial Summary Judgment is GRANTED; and Centaur’s Motion for
Summary Judgment on River Venture’s Cross-Claim is GRANTED.
BACKGROUND
Plaintiff Devin Barrios alleges that he was injured while working for
Defendant Centaur, LLC (“Centaur”) as a Jones Act seaman. Barrios was
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hired by Centaur, a marine construction company, to work on a construction
project to build a concrete containment wall around the edge of a dock facility
owned by United Bulk Terminals Davant, LLC (“UBT”). Centaur leased a
barge to house its equipment during the project. UBT contracted with River
Ventures, LLC (“River Ventures”) to provide a crew boat to transport Centaur’s
employees to and from the project. Plaintiff alleges that he was injured while
transferring a portable generator from the crew boat to the barge when the
crew boat separated from the barge and he fell into the river, followed by the
100lb generator. Plaintiff brought claims under the general maritime law and
Jones Act against both Centaur and River Ventures. River Ventures then filed
a cross-claim against Centaur seeking indemnity and insurance pursuant to a
Master Service Agreement (“MSA”) entered into between UBT and Centaur
regarding all construction projects performed by Centaur for UBT.
Defendants Centaur and River Ventures have filed cross-motions for
summary judgment regarding Plaintiff’s seaman status. Centaur, Plaintiff’s
employer, argues that Plaintiff is not a seaman and therefore his only remedy
against it is for compensation under the LHWCA. River Ventures argues the
barge at issue is a vessel in navigation, but that material issues of fact exist as
to Plaintiff’s seaman status. In addition, Centaur moves for summary
judgment on River Venture’s cross-claim, arguing that the Louisiana
Construction Anti-Indemnity Statute applies to the MSA to prohibit the
indemnity and additional insured provisions therein. This Court will consider
each Motion in turn.
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LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 1 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 2
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. 3 “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.” 4 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.” 5 “In response to a
properly supported motion for summary judgment, the non-movant 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 non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 6 “We do not . . . in the absence
Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
6 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
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of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 7 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 8
LAW AND ANALYSIS
The summary judgment motions before the Court dispute two issues: (1)
Plaintiff’s seaman status, and (2) River Venture’s entitlement to indemnity
and insurance pursuant to the MSA between UBT and Centaur. This Court
will consider these issues in turn.
I.
Seaman Status
“The Jones Act provides a cause of action in negligence for ‘any seaman’
injured ‘in the course of his employment.’” 9 The Jones Act provides heightened
legal protections to seamen because of their exposure to the inherent dangers
of the high seas and was intended to provide remedial protections to sea-based
maritime workers. 10 The Act, however, does not provide a definition of a
“seaman.” 11 Instead, the Supreme Court has promulgated two requirements
for an employee to achieve seaman status. 12 First, “an employee’s duties must
contribute to the function of the vessel or to the accomplishment of its
mission.” 13 Second, “a seaman must have a connection to a vessel in navigation
(or to an identifiable group of such vessels) that is substantial in terms of both
Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
9 Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (quoting 46 U.S.C. § 688(a)).
10 Id.
11 Id. at 355.
12 Id. at 368.
13 Id. (internal quotations omitted).
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its duration and its nature.” 14 As a general rule of thumb, “[a] worker who
spends less than about 30 percent of his time in the service of a vessel in
navigation should not qualify as a seaman under the Jones Act.” 15
These motions present two main issues as to Plaintiff’s seaman status:
(1) whether the barge was a “vessel in navigation” and (2) how much time
Barrios spent working aboard the vessel.
A. Vessel in Navigation
Both Centaur and River Ventures have moved for summary judgment
regarding whether the barge was a vessel in navigation. “The term vessel has
generally been defined broadly and, in its traditional sense, refers to structures
designed or utilized for transportation of passengers, cargo or equipment from
place to place across navigable waters.” 16 “The Supreme Court has specified
that the relevant inquiry in determining vessel status is ‘whether the
watercraft’s use as a means of transportation on water is a practical possibility
or merely a theoretical one.’” 17 “[A] watercraft is not practically capable of
maritime transportation ‘unless a reasonable observer, looking to the
[watercraft’s] physical characteristics and activities, would consider it
designed to a practical degree for carrying people or things over water.’” 18
The evidence shows that the barge was used to hold equipment and
supplies needed for the construction job on the dock, such as pallets of concrete
and a cherry picker. Although it was not capable of self-propulsion, it moved
Id.
Id. at 371.
16 Bernard v. Binnings Const. Co., 741 F.2d 824, 828–29 (5th Cir. 1984)
17 Gautreaux v. Trinity Trading Grp., Ltd., No. 12-2851, 2014 WL 1414576, at *1 (E.D.
La. Apr. 11, 2014) (quoting Stewart v. Dutra Construction Co., 543 U.S. 481, 497 (2005)).
18 Id. (quoting Lozman v. City of Riviera Beach, Fla., 133 S.Ct. 735, 745 (2013)).
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approximately every other day by tug boat or winch. The barge moved up and
down the dock by winch to assist with the ongoing project. It also moved by tug
boat from the dock to land to retrieve additional supplies for the project.
Centaur argues that the facts show that the barge was a work platform
and not a vessel in navigation. “[T]he Fifth Circuit has repeatedly held that
barges are not vessels when they are permanently attached to land, and when
any transportation function is incidental to their primary purpose as a nonvessel work platform.” 19 Here, there is no evidence that the barge was
permanently attached to land, and although it lacked a means of selfpropulsion, it did in fact move frequently. It cannot be said that this movement
was merely incidental because it was necessary to provide supplies and
equipment to the dock construction project. The movement of the barge at issue
here was not simply theoretical, but it was actually used for the transportation
of equipment and supplies over water. 20 Accordingly, this Court holds that the
barge was a vessel in navigation. 21
B. Time Working on Vessel
In determining Plaintiff’s seaman status, the Court must next consider
the amount of time Plaintiff spent working aboard the barge. Centaur argues
that Barrios is not a seaman because he spent most of his time working on the
dock, not the barge, and the only evidence to the contrary is Barrios’s own
Young v. T.T. Barge Servs. Mile 237, LLC, 290 F. Supp. 3d 562, 567 (E.D. La. 2017).
See Gautreaux, 2014 WL 1414576, at *1; Michel v. Total Transp., Inc., 957 F.2d 186,
190 (5th Cir. 1992).
21 Centaur makes much ado about the Plaintiff’s lack of involvement in the moving of
the barge. This Court can find no case law indicating that such a fact has any bearing on the
barge’s vessel status. The test requires the Court to consider whether the barge moves, not
who is involved in its movement.
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testimony. River Ventures and Barrios argue that there is a material issue of
fact regarding how much time Barrios spent on the vessel and summary
judgment is therefore inappropriate.
Centaur is correct that while Barrios testified that he spent 80% of his
time on the vessel, at least five other Centaur and dock employees testified
that the number was closer to 20%. 22 However, these estimations may conflict
with some testimony regarding what work Barrios actually performed aboard
the barge. Barrios testified that he welded, grinded, diagramed and moved
concrete on the barge. He also testified that the barge was used to “stand on
to build—to mount the forms to the dock that you pour the concrete in.” 23 In
addition, there is testimony from at least one other dock employee that he
witnessed the Centaur crew mixing concrete, putting template and rebar in,
and pouring concrete from the barge. 24 These facts indicate that substantially
more work occurred aboard the vessel than the 20% attested to by some of the
Centaur and dock employees, creating a material issue of fact.
Indeed, “[t]he seaman inquiry is a mixed question of law and fact, and it
is often inappropriate to take the question from the jury.” 25
“[S]ummary
judgment on seaman status is proper where the only rational inference to be
William Vernor, a dock employee, estimated 20% to 30% of work time was spent on
the barge, including break time and lunch time. Craig Rink, Centaur foreman, testified 15%
to 20%. Brody Ledet, Plaintiff’s direct supervisor, testified 20%. Dylan Ledet, a Centaur
laborer, testified 20%, and Andrew Breland, the dock project manager, testified 10% to 15%.
The parties dispute the admissibility of Brandon Lavergne’s testimony, but this issue need
not be reached here.
23 Doc. 74-2, p. 9.
24 Robert Rodriguez Deposition, Doc. 74-10.
25 Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554 (1997) (internal citations
omitted).
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drawn from the evidence is that the worker is not a seaman.” 26 Here, there is
sufficient conflicting evidence that a jury might draw more than one inference
regarding the amount of time that Barrios spent working aboard the barge,
and ultimately his seaman status. Accordingly, summary judgment on seaman
status is denied.
II.
Contractual Indemnity
In its cross-claim against Centaur, River Ventures seeks indemnity and
insurance pursuant to the MSA between UBT and Centaur. Centaur has
moved for summary judgment arguing that the Louisiana Construction AntiIndemnity Statute applies to the MSA to prohibit the indemnity and additional
insured provisions therein. River Ventures argues that maritime law, not
Louisiana law, applies to the MSA to allow these provisions. The issue then
becomes whether the MSA between UBT and Centaur is a maritime contract.
Relying on the Fifth Circuit’s decision in In re Larry Doiron, the parties
appear to agree that a contract is a maritime contract if: (1) the work Centaur
was performing for UBT involves maritime commerce, (2) it involved work from
a vessel, and (3) the contract provided or the parties expected that a vessel
would play a substantial role in completing the contract. 27 Although Doiron
dealt specifically with contracts in the oil and gas context, it stated that, “If an
activity in a non-oil and gas sector involves maritime commerce and work from
a vessel, we would expect that this test would be helpful in determining
Bernard v. Binnings Const. Co., 741 F.2d 824, 828 (5th Cir. 1984).
879 F.3d 568 (5th Cir. 2018), This is the approach taken in Lightering LLC v.
Teichman Group, LLC, No. H-17-3374, 2018 WL 3428561, at *11 (S.D. Tex. July 16, 2018),
the only case to have interpreted Doiron in a non-oil and gas context so far.
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whether a contract is maritime.” 28 Accordingly, this Court will consider these
factors in turn.
1. Maritime Commerce
River Ventures argues that the contract involved maritime commerce
because the containment wall was being built on the dock to keep coal and
other products being offloaded from barges from falling into the river. Centaur
argues that the contract was one for the construction of a concrete lip on a dock
and thus does not involve maritime commerce. It argues that the fact that the
construction project might have incidentally facilitated maritime commerce is
insufficient.
The district court in Lightering LLC v. Teichman Group was first to
consider the Doiron test in a non-oil and gas context. 29 In that case, the
contract was one for the wharfage of workboats, the storage of lightering
equipment, and the loading and unloading of lightering equipment from
workboats. 30 The court held that although lightering is a traditional maritime
activity, the contract at issue was merely one that facilitated lightering. 31 The
court stated that, “The fact that the Agreement supported [the] lightering
operations is informative, but not dispositive. A wide range of non-maritime
activities, entirely land based, can ‘facilitate’ maritime commerce. Instead, the
In re Larry Doiron, 879 F.3d at 577 n.52. The Doiron test asks: “First, is the
contract one to provide services to facilitate the drilling or production of oil and gas on
navigable waters?” and “Second, if the answer to the above question is ‘yes,’ does the
contract provide or do the parties expect that a vessel will play a substantial role in the
completion of the contract?” Id.
29 Lightering LLC, 2018 WL 3428561.
30 Id. at *2.
31 Id. at *11
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court must consider the substance of the Agreement.” 32 The court concluded
that only the loading and unloading component of the agreement was maritime
and that this component was incidental to the non-maritime objective of the
agreement. 33
The Supreme Court instructs that the Court should consider whether
the “principal objective” of a contract is maritime commerce. 34 Here, the
primary objective of the UBT/Centaur MSA is the construction of a concrete lip
on UBT’s dock. Like in Lightering, this objective merely facilitates the
traditional maritime commerce activity of loading and unloading vessels. This
Court holds that the land-based construction contract at issue here is nonmaritime. It therefore need not consider the other Doiron factors.
2. Louisiana Construction Anti-Indemnity Statute (LCAIS)
Because the MSA is non-maritime, the parties agree that it is governed
by Louisiana law.
Centaur argues that the Louisiana Construction Anti-
Indemnity Statute (LCAIS) applies to prohibit the indemnity and insurance
provisions of the MSA. The LCAIS states that provisions in a construction
contract are “null, void, and unenforceable” which (1) purport to indemnify,
defend, or hold harmless the indemnitee from any liability resulting from its
own negligent or intentional acts, or (2) purport to require an indemnitor to
procure liability insurance covering the acts or omissions of the indemnitee. 35
River Ventures responds that the indemnity and insurance provisions in
the MSA fall within a particular exception to the LCAIS’s prohibition. The
Id.
Id.
34 Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 25 (2004).
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La. Rev. Stat. § 9:2780.1.
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exception states that the anti-indemnity rule does not apply when “there is
evidence that the indemnitor recovered the cost of the required insurance in
the contract price.” 36 River Ventures points to testimony from three Centaur
employees indicating that it considered overhead costs such as insurance in
bidding on the construction job.
This Court finds instructive courts’ interpretations of a similar exception
to the Louisiana Oilfield Indemnity Act (LOIA). In Marcel v. Placid Oil Co.,
the Fifth Circuit recognized an exception to LOIA “when the principal pays the
entire cost of its own insurance coverage by securing an endorsement naming
it as an insured in the contract or policy.” 37 “[T]he exception does not apply if
any material part of the cost of insuring the indemnitee is borne by the
independent contractor procuring the insurance coverage.” 38 Here, the fact
that Centaur may have considered insurance coverage in calculating its bid
does not establish that UBT paid the full amount of the premium or that
Centaur did not pay any material part. River Ventures has not carried its
burden to show that UBT paid the full amount of its insurance premium and
that the LCAIS exception applies. Accordingly, LCAIS applies to prohibit the
indemnity and insurance provisions of the MSA.
CONCLUSION
For the foregoing reasons, Centaur’s Motion for Summary Judgment is
DENIED; River Venture’s Motion for Partial Summary Judgment is
Id.
Rogers v. Samedan Oil Corp., 308 F.3d 477, 481 (5th Cir. 2002) (discussing Marcel
v. Placid Oil Co., 11 F.3d 563 (5th Cir. 1994)).
38 Marcel, 11 F.3d at 570.
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GRANTED; and Centaur’s Motion for Summary Judgment on River Venture’s
Cross-Claim is GRANTED. River Venture’s Cross-Claim against Centaur is
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 22nd day of October, 2018.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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