Walker v. Sunland Construction, Inc. et al

Filing 68

ORDER granting 53 Motion for Summary Judgment. The Motion is granted, as set forth in document. Signed by Judge Greg Gerard Guidry on 10/13/2020. (ko)

Case 2:19-cv-00338-GGG-KWR Document 68 Filed 10/13/20 Page 1 of 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION

BRANDON E. WALKER

NO: 19-338

VERSUS

SECTION: T

SUNLAND CONSTRUCTION, INC.
and COLONIAL PIPELINE COMPANY

ORDER
Before the Court is a Motion for Summary Judgment 1 filed by defendants, Sunland
Construction, Inc. (“Sunland”) and Liberty Insurance Corporation of Schaumburg, Illinois
(“Liberty”). Brandon E. Walker (“Plaintiff”) has filed an opposition.2 For the following reasons,
the Motion for Summary Judgment3 is GRANTED.
BACKGROUND
Plaintiff’s complaints assert claims against Sunland and its liability insurer, Liberty, for
negligence under the Jones Act, unseaworthiness, and maintenance and cure.4 Plaintiff alleges he
was employed by Sunland on November 27, 2018 as a Jones Act Seaman when he experienced an
accident which resulted in serious painful injuries to his right shoulder, back and other parts of his
body. Plaintiff was hired by Sunland on August 20, 2018, to work as a welder on Project Cochon.
Beginning on November 6, 2018, Plaintiff was assigned as a member of the barge BH-101 in the
waters of Lake Borgne. Plaintiff slept ashore in a trailer on the night of November 26, 2018. On
November 27, 2018, Plaintiff traveled to the barge BH-300 which was anchored in Hopedale,

1

R. Doc. 53.
R. Doc. 57.
3
R. Doc. 53.
4
R. Docs. 1 and 26.
2

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Case 2:19-cv-00338-GGG-KWR Document 68 Filed 10/13/20 Page 2 of 4

Louisiana. Plaintiff was then transported by crew boat from the barge BH-300 to the barge BH101 which was located in the waters of the Mississippi River Gulf Outlet (“MRGO”).
Plaintiff arrived on the barge BH-101 and met with other personnel for further orders
regarding the specific welding work they would be tasked to perform that day. Plaintiff was later
instructed to take a crew boat, M/V MR ROBIE, from the barge BH-101 to Sunland’s hoist barge,
which was also located in the waters of the MRGO. Plaintiff loaded his equipment onto the hoist
barge and was responsible for installing the beveling machine onto the pipeline and removing the
pig launcher from the pipeline. Plaintiff moved from the hoist barge to a small pontoon located at
the bow of the hoist barge. At the time of the accident, Plaintiff was standing on the small work
pontoon when a Jon boat approached close to the pontoon. Plaintiff put his foot out to stop the Jon
boat from colliding with the pontoon causing Plaintiff to fall overboard.
Plaintiff’s first day of paid employment was August 21, 2018, and his last day of work as
a welder on the barge BH-300 was October 6, 2018. Plaintiff’s last day of work as a welder in the
field was the day of his accident, November 27, 2018. Between August 21 and November 27,
2018, Plaintiff was paid for 75 days of work. From October 6, 2018 through the date of his accident
on November 27, Plaintiff was assigned to weld either on land, on Sunland’s hoist barge, or on a
work pontoon either in the excavated pipe ditch or inside the rock breakwater at the Lake Borgne
shoreline.
Sunland and Liberty have now moved for summary judgment contending that Plaintiff was
not a seaman at the time of his accident, and his claims asserted against Sunland and Liberty are
precluded by workers’ compensation laws. Sunland and Liberty claim that prior to Plaintiff’s
accident, Plaintiff’s assignment had changed permanently to welding either on land or on small
pontoons positioned at the shoreline or in a non-navigable pipe ditch excavated by Sunland.

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Therefore, Sunland and Liberty assert they are entitled to judgment as a matter of law dismissing
Plaintiff’s claims against them.
LAW AND ANALYSIS
Summary judgment is proper where “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”5 When assessing
whether a dispute as to any material fact exists, the court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.” 6 All
reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to
either support or defeat a motion for summary judgment.”7
Only a seaman may pursue causes of action for negligence under the Jones Act, 46 U.S.C.
§ 30104, and for unseaworthiness, maintenance, and cure under general maritime law. 8 The
Supreme Court and Fifth Circuit have adopted a two-factor test to determine whether a worker is
a Jones Act seaman. First, the “worker's duties must contribute to the function of the vessel or to
the accomplishment of its mission.”9 Second, the “worker must have a connection to a vessel in
navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and
its nature.”10 At trial, “[a]n injured person claiming the benefits of the Jones Act has the burden of
establishing seaman status.”11

5

Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
7
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994).
8
Chandris, Inc. v. Latsis, 515 U. S. 347, 354 (1995).
9
Chandris, 515 U.S. at 376.
10
Id.
11
See Barrett v. Chevron U.S.A., Inc., 752 F.2d 129, 132 (5th Cir. 1985).
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Sunland and Liberty contend that Plaintiff fails to satisfy the second prong of the test – a
substantial connection to a vessel in navigation. From August 21 through October 6, Plaintiff was
assigned to work as a welder on the three-barge BH-300 Lay Spread, which consisted of the BH300 pipelay barge, the BH-104 deck barge, and the KS-4605 spud barge. Plaintiff’s assignment to
work on the BH-300 Lay Spread ended permanently on October 6. From October 6 through
November 27, Plaintiff’s welding assignments were located on marsh land at the Highway 46
location, on a Sunland’s hoist barge, or on a work pontoon positioned at the shoreline or in the
excavated pipe ditch. Because the majority of Plaintiff’s work was done on land, and the remaining
work was not done on a vessel in navigation, the Court finds that the summary judgment evidence
shows that Plaintiff cannot establish a substantial connection to a vessel in navigation. Therefore,
Plaintiff fails to establish seaman status at the time of his accident under the Jones Act, 46 U.S.C.
§ 30104, and Sunland and Liberty are entitled to judgment dismissing Plaintiff’s claims.
CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that the Motion for Summary
Judgment12 is GRANTED.
New Orleans, Louisiana, on this 13th day of October, 2020.

GREG GERARD GUIDRY
UNITED STATES DISTRICT JUDGE

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R. Doc. 53.

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