Doucet v. R. & R. Boats, Inc.

Filing 76

ORDER granting 59 Motion in Limine. Signed by Judge Brian A. Jackson on 11/5/2020. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ELROY DOUCET CIVIL ACTION

VERSUS
R. & R. BOATS, INC. NO. 17-00421-BAJ-EWD

ORDER
Before the Court is Defendant's Motion In Limine To Strike ALMA'S New
Claim For Recovery (Doc. 59), seeking to strike Intervenor Plaintiff American
Longshore Mutual Association, Ltd/s ("ALMA") claimed right of recovery under
Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404 (1969).
Burnside permits a direct action against a third-party tortfeasor in addition to any
recovery under the Longshore and Harbor Workers' Compensation Act ("LHWCA"),
33 U.S.C. § 901, et seq. ALMA opposes Defendant's Motion. (Doc. 60).

The Court has carefully reviewed this matter and finds that the Motion should
be granted for the reasons advanced in. Defendant s supporting memorandum. Based

on the face of its Complaint of Intervention (Doc. 6) (the "Intervenor Complaint"),
ALMA failed to adequately plead a claim for recovery under Burnside. A Burnside
claim, as will be discussed, is a tort action and therefore a plaintiff must establish
that (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached
the duty; (3) the plaintiff suffered damages; and (4) the breach of the duty proximately
caused the damages. See Crear L>. Omega Protein, Inc. 86 Fed.Appx. 688, 691

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(5th Cir. 2004).
When a party makes a motion to intervene, it must "be accompanied by a

pleading tliat sets out the claim or defense for which intervention is sought."
Fed. R. Civ. P. 24(c). Just as any other complaint, the sufficiency of an intervenor

complaint is determined by Federal Rule of Civil Procedure ("Rule") 8, which requires
a short and plain statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2). The intervenor complaint need not set out "detailed
factual allegations," but must contain something "more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action." Bell Ati. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). The primary purpose of Rule 8(a)(2) is to "give
the defendant fair notice of what the plaintiffs claim is and the grounds upon which
it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).

While ALMA adequately pleaded its claim for a lien on Plaintiffs recovery
under the LHWCA, it failed to adequately plead a Burnside claim. The U.S. Court of
Appeals for the Fifth Circuit has instructed that a Burnside claim is an independent
method of recovery not created, expressly or impliedly, by the LHWCA and does not
arise from or depend on any rights or obligations which the LHWCA imposes as
between the employer and the offending third party." Lowe v. Ingalls Shipbuilding,
A Div. ofLitton Sys., Inc., 723 F.2d 1173, 1182 (5th Cir. 1984). Instead, a Burnside
claim allows an insurer to "assertQ the stevedore's right of direct action against the
shipowner on the basis of contractual subrogation to that right." Hartford Ace. &

Indem. Co. v. Ocean Carrier, 799 F.2d 1093, 1096 (5th Cir. 1986); see also Burnside,

394 U.S. at 416-17 ("We hold only that federal maritime law. . . does recognize a direct
action in tort against the shipowner to recover the amount of compensation payments

occasioned by the latter's negligence/'). "The analysis of a maritime tort is guided by
the general principles of negligence law." Consolidated Aluminum Corp. v. C.F. Bean

Corp,, 833 F.2d 65, 67 (5th Cir. 1987) (citations omitted). Thus, a Burnside claim, as
a tort claim, requires that an insurer plead that a shipowner owed a duty to it, that

the ship owner breached that duty, and that that breach caused it damages.
In its Intervenor Complaint, ALMA alleged that its liability to Plaintiff under
the LHWCA was due to the fault and negligence of Defendant. ALMA further argued
that it was entitled to recover from [Defendant] directly and by preference and
priority from the first monies received by [Plaintiff], whether by way of judgment,
settlement or otherwise, for the compensation, medical, expenses and attorney fees

ALMA has paid pursuant to the provisions of the Outer Continental Shelf Lands Act,
43 U.S.C. §1333, et seq., extending the benefits of the [LHCWA]." (Doc. 11 at ^ 15).
ALMA now argues that the Intervenor Complaint's inclusion of the word
directly refers to a Burnside claim, and that the phrase by preference and priority"
refers to a lien of under LHWCA. (Doc. 60 at 3). If ALMA sought a recovery for a claim
other than under the LHWCA; however, it must have adequately pleaded a cause of
action outside the LHWCA as a basis for recovery. It has failed to do so. ALMA
ALMA s Intervenor Complaint does not allege that Defendant owed ALMA any duty,
nor does ALMA allege that any such duty was breached. Indeed, ALMA'S Intervenor
Complaint never mentions any remedy outside of the LHWCA. ALMA solely pleads

that it is entitled to recover due to Defendant's negligence, which is consistent with
the requirements of the LHGWA. In context, the Intervenor Complaint's use of the

word directly indicates only that ALMA is asserting its rights under the LHCWA.
ALMA was placed on notice that it had not adequately pleaded a Burnside
claim when the Magistrate Judge granted its Motion for Leave to File Complaint of
Intervention (Doc. 10) in October 2017. The Court permitted intervention (<[b]ased on
LHWCA and the rights of employers and insurers set forth therein, as well as ALMA'S
assertion that it has made compensation payments to Plaintiff." (Doc. 10 at 6). The
Court made no mention of a Burnside claim.

The deadline to amend pleadings was May 30, 2018 (Doc. 23). In all
documentation, ALMA has argued that it is entitled to recover under the LHWCA
and has never argued another cause of action until it filed its Memorandum in

Opposition to Motion for Partial Summary Judgment (Doc. 53). Because the Burnside
claim was never pleaded, Defendant has not been provided an opportunity to

challenge ALMAs action. Allowing ALMA to expand the scope of its theory of
recovery beyond the allegations contained within the Intervenor Complaint would
run afoul of the notice pleading requirement. See Herster v. Board Supervisors of

Louisiana State University, 221 F.Supp.Sd 791, 795 (M.D. La 2016).
Accordingly,

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IT IS ORDERED that Defendant's Motion in Limine to Strike ALMA'S New

Claim (Doc. 59) is GRANTED.

Baton Rouge, Louisiana, this day of November, 2020

JUDGE BRIA^U. JjkCKSON

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA