Abadie et al v. Madere and Sons Marine Services, LLC et al

Filing 25

ORDER AND REASONS that Plaintiffs' 16 Motion for Judgment on the Pleadings is GRANTED as to striking the jury demand made by defendants, Brammer Engineering, Inc. and Zurich American Insurance Company. IT IS FURTHER ORDERED that Plaintiffs ' 16 Motion for Judgment on the Pleadings is DENIED as to striking the workers' compensation affirmative defense raised by defendants, Brammer Engineering, Inc. and Zurich American Insurance Company. Signed by Judge Mary Ann Vial Lemmon on 11/13/2017. (cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH M. ABADIE AND

CIVIL ACTION

AMY ABADIE
VERSUS

NO. 17-6705

MADERE AND SONS MARINE
SERVICES, LLC, DEEP SOUTH
OILFIELD CONSTRUCTION,
LLC, BRAMMER ENGINEERING,
INC., CRAIG GAUTREAUX AND
ZURICH AMERICAN
INSURANCE CO.

SECTION "S"

ORDER AND REASONS
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Judgment on the Pleadings (Doc.
#16) is GRANTED as to striking the jury demand made by defendants, Brammer Engineering,
Inc. and Zurich American Insurance Company.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Judgment on the Pleadings (Doc.
#16) is DENIED as to striking the workers’ compensation affirmative defense raised by
defendants, Brammer Engineering, Inc. and Zurich American Insurance Company.
BACKGROUND
This matter is before the court on a motion for judgment on the pleadings filed by plaintiffs,
Joseph and Amy Abadie. Plaintiffs seek an order striking the jury demand made by defendants,
Brammer Engineering, Inc. and Zurich American Insurance Company. Plaintiffs also seek an
order striking Brammer and Zurich’s affirmative defense of workers’ compensation tort immunity.
Plaintiffs allege that on July 19, 2016, Joseph was employed by defendants, Madere and
Sons Marine Services, LLC and/or Deep South Oilfield Construction, LLC. Joseph was assigned
to work as the captain of the M/V MAMMA MIA, a crew boat in navigation owned and operated
1

by Madere and Deep South. Joseph was instructed to sail the M/V MAMMA MIA to a production
platform in the Main Pass Block 49 Field in Louisiana state territorial waters. The production
platform was owned and operated by Brammer.
When the vessel arrived at the production platform, Joseph was informed by the platform
well site supervisor, defendant Craig Gautreaux, that the vessel had to take a tote tank containing
liquid oilfield waste and weighting approximately 4,600 pounds from the platform to shore.
Joseph advised Gautreaux that the tote take was too big and heavy to be safely offloaded from the
production platform onto the M/V MAMMA MIA, but Gautreaux insisted on using the M/V
MAMMA MIA to do the job.
Geautreaux operated the production platform’s crane to lower the tote tank onto the stern
deck of the M/V MAMMA MIA. During the process, the tote tank swung toward the vessel’s
bow, striking Joseph and pinning him against the bulkhead between the stern deck and the
wheelhouse. Joseph alleges that he sustained multiple injuries as a result of the accident, including
bruises and abrasions and injuries to his spine, shoulder and connective joints, tissues and nerves.
On July 13, 2017, plaintiffs filed this action against Madere, Deep South, Brammer,
Gautreaux and Zurich seeking damages for the injuries Joseph allegedly sustained as a result of
the July 19, 2016, accident. Plaintiffs allege that Madere and Deep South are liable for negligence
under the Jones Act, 46 U.S.C. § 30104, et seq., and for the unseaworthiness of the M/V MAMMA
MIA under the general maritime law. Plaintiffs also allege that Brammer and Gautreaux are liable
for negligence under the general maritime law. In the alternative, plaintiffs allege that Joseph was
a maritime employee covered by the Longshore and Harbor Workers Compensation Act
(“LHWCA”), 33 U.S.C. § 901, et seq. Further, plaintiffs allege that Brammer and Gautreaux are
liable for Amy’s loss of consortium and society. Finally, plaintiffs allege that Zurich is liable as

2

the insurer of Brammer and Gautreaux. Plaintiffs filed an amended complaint alleging that their
claims are maritime claims that arise under Rule 9(h) of the Federal Rules of Civil Procedure.
Brammer and Zurich filed an answer demanding a jury trial. Brammer and Zurich also raise
an affirmative defense that Joseph’s exclusive remedy against them lies in workers’ compensation.
Plaintiffs filed a motion for judgment on the pleadings seeking an order striking Brammer and
Zurich’s jury demand and workers’ compensation defense. Plaintiffs argue that they are entitled
to a bench trial because they pleaded that their claims arise under this court’s admiralty jurisdiction
pursuant to Rule 9(h). They also argue that Joseph was not employed by Brammer, thus his
remedies against Brammer and its insurer, Zurich, are not limited to workers’ compensation.
ANALYSIS
I.

Rule 12(c) of the Federal Rules of Civil Procedure
A party may move for judgment on the pleadings after an answer has been filed. Fed. R.

Civ. P. 12(c). "The standard for dismissal under Rule 12(c) is the same as that for dismissal for
failure to state a claim under Rule 12(b)(6).” Chauvin v. State Farm & Cas. Co., 495 F.3d 232,
237 (5th Cir. 2007). “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.” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic v. Twombly, 127 S.Ct. 1955, 196465 & 1973 n.14 (2007)). “Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 1965. The court “must accept all well-pleaded facts as true and view
them in the light most favorable to the non-moving party.” In re S. Scrap Material Co., LLC, 541
F.3d 584, 587 (5th Cir. 2008). A district court may consider only the contents of the pleading and

3

the attachments thereto. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)
(citing Fed. R. Civ. P. 12(b)(6)).
II.

Plaintiffs’

Motion

to

Strike

Brammer

and

Zurich’s

Jury

Demand

Plaintiffs argue that Brammer and Zurich’s jury demand should be stricken because
plaintiffs have designated this case as arising under this court’s admiralty jurisdiction pursuant to
Rule 9(h). Brammer and Zurich argue that plaintiff has brought state-law negligence claims
against them and they are entitled to a jury trial under the Seventh Amendment to the Constitution
of the United States.
Rule 9(h) provides:
If a claim for relief is within the admiralty or maritime jurisdiction
and also within the court's subject-matter jurisdiction on some other
ground, the pleading may designate the claim as an admiralty or
maritime claim for purposes of Rules 14(c), 38(e), and 82 and the
Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions. A claim cognizable only in the admiralty or
maritime jurisdiction is an admiralty or maritime claim for those
purposes, whether or not so designated.
Fed. R. Civ. P. 9(h)(1).
Designating a claim as an admiralty or maritime claim under Rule 9(h) carries with it
“numerous and important consequences,” particularly with respect to the right to a jury trial.
T.N.T. Marine Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585, 586 (5th Cir.
1983). The United States Court of Appeals for the Fifth Circuit has explained that:
One of the most important consequences relates to the rules of
procedure that will be applied to the case. If a claim is pleaded under
diversity jurisdiction, the rules of civil procedure will apply, and the
parties will be guaranteed, under the Seventh Amendment, a right to
have the claim tried by a jury. If the claim is pleaded under admiralty
jurisdiction, however, the plaintiff will invoke those historical
procedures traditionally attached to actions in admiralty. One of the
historical procedures unique to admiralty is that a suit in admiralty
does not carry with it the right to a jury trial. Thus, there is no right
4

to a jury trial where the complaint contains a statement identifying
the claim as an admiralty or maritime claim . . . .
Luera v. M/V Alberta, 635 F.3d 181, 188 (5th Cir. 2011) (internal citations and quotations
omitted).
Plaintiffs, the masters of their complaint, designated their case as arising under 9(h).
Plaintiffs do not allege diversity subject matter jurisdiction under 28 U.S.C. § 1332, or any other
basis for jurisdiction, that would ordinarily provide Brammer and Zurich with a right to a jury trial
under the Seventh Amendment if there were no 9(h) designation. See Becker v. Tidewater, Inc.,
405 F.3d 257, 259 (5th Cir. 2005). Therefore, Brammer and Zurich do not have a constitutionally
or statutorily based right to a jury trial. See id. As a result, plaintiffs’ motion to strike Brammer
and Zurich’s jury demand is GRANTED.
III.

Plaintiffs’ Motion to Strike Brammer and Zurich’s Workers’ Compensation Defense
Plaintiffs argue that the workers’ compensation defense raised by Brammer and Zurich

should be stricken because Joseph was employed by Madere and/or Deep South, not Brammer.
Thus, plaintiffs argue that they not limited to the workers’ compensation recovery scheme against
Brammer and its insurer, Zurich.
Brammer and Zurich argue that it is premature to strike this defense. They contend that
Joseph was a borrowed employee of Brammer and it is premature determine whether Joseph was
a borrowed employee of Brammer because discovery has not commenced and the borrowed
employee analysis is a fact intensive inquiry.
A borrowed servant is considered the employee of the borrowing employer, and is treated
as such. Standard Oil Co. v. Anderson, 29 S.Ct. 252 (1909); Denton v. Yazoo & M.V. Ry. Co., 52
S.Ct. 141 (1932). The United States Court of Appeals for the Fifth Circuit has held that the
following nine factors must be considered in determining borrowed employee status:
5

(1) Who had control over the employee and the work he was
performing, beyond mere suggestion of details or cooperation?
(2) Whose work was being performed?
(3) Was there an agreement, understanding, or meeting of the minds
between the original and the borrowing employer?
(4) Did the employee acquiesce in the new work situation?
(5) Did the original employer terminate his relationship with the
employee?
(6) Who furnished tools and place for performance?
(7) Was the new employment over a considerable length of time?
(8) Who had the right to discharge the employee?
(9) Who had the obligation to pay the employee?
Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993). No one factor is determinative, but
control is the “central” issue of borrowed employee status. Melancon v. Amoco Production Co.,
834 F.2d 1238, 1245 (5th Cir. 1988), amended, 841 F.2d 572 (5th Cir. 1988). “The question of
borrowed employee status is a question of law for the district court to determine.” Billizon, 993 at
105. However, “in some cases, factual disputes must be resolved before the district court can make
its legal determination.” Id.
Plaintiffs argue that Joseph was employed by Madere and/or Deep South. On the other
hand, Brammer and Zurich argue that Joseph was Brammer’s borrowed servant. Discovery in this
case is ongoing and there are no facts before the court that would allow it to weigh the factors
relevant to the borrowed servant test. Therefore, plaintiffs’ motion to strike Brammer and Zurich’s
workers’ compensation defense is DENIED as premature. Plaintiffs may reassert their arguments
regarding Brammer and Zurich’s workers’ compensation defense when discovery is complete.

6

CONCLUSION
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Judgment on the Pleadings (Doc.
#16) is GRANTED as to striking the jury demand made by defendants, Brammer Engineering,
Inc. and Zurich American Insurance Company.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Judgment on the Pleadings (Doc.
#16) is DENIED as to striking the workers’ compensation affirmative defense raised by
defendants, Brammer Engineering, Inc. and Zurich American Insurance Company.

13th
New Orleans, Louisiana, this _____ day of November, 2017.

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

7