Bailey v. Helix Energy Solutions Group Inc et al
Filing
1
COMPLAINT against Cal Dive H R Services L L C, Cal Dive International Inc, Cal Dive Offshore Contractors Inc, Helix Energy Solutions Group Inc. with Jury Demand (Prepayment of fee not required pursuant to 28 USC 1916) filed by Jeffrey N. Bailey. (Attachments: # 1 Proposed Summons, # 2 Proposed Summons, # 3 Proposed Summons, # 4 Proposed Summons, # 5 Civil cover sheet)(aty,Curtis, Lawrence) Modified party text on 11/16/2011. (Alexander, E)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
JEFFREY N. BAILEY
CIVIL ACTION NO.
VERSUS
JUDGE
HELIX ENERGY SOLUTIONS GROUP,
INC., CAL DIVE HR SERVICES, LLC,
CAL DIVE INTERNATIONAL, INC.,
CAL DIVE OFFSHORE CONTRACTORS, INC.
MAG. JUDGE
JURY TRIAL REQUESTED
******************************************************************
SEAMAN’S COMPLAINT FOR DAMAGES
COMES NOW, Jeffrey N. Bailey (“Bailey”), complaining of Helix
Energy Solutions Group, Inc., Cal Dive HR Services, LLC, Cal Dive
International, Inc., and Cal Dive Offshore Contractors, Inc.,
hereinafter collectively referred to as “Defendants” and for cause
of action, your Plaintiff would respectfully show and represent
unto this Honorable Court, as follows:
JURISDICTION
1.
This maritime action is brought under the Jones Act, 46
USC §30104, et seq., as well as under the General Maritime Law of
the United States.
PLAINTIFF
2.
Bailey, age 28, is a person of the full age of majority
and a resident of Huntington Beach, California.
DEFENDANTS
3.
Helix Energy Solutions Group, Inc. is thought to be a
foreign corporation, organized and existing by virtue of the laws
of the State of Minnesota,
having its principal place of business
in Houston, Texas, but it is licensed to do and doing business in
this State, and it may be cited to appear and answer herein by
serving its registered agent for service of process; namely, C T
Corporation System, 5615 Corporate Blvd., Ste. 400B, Baton Rouge,
Louisiana.
4.
Cal Dive HR Services, LLC is thought to be a limited
liability company, organized and existing by virtue of the laws of
the State of Delaware, having its principal place of business in
Houston, Texas, but it is licensed to do and doing business in this
State, and it may be cited to appear and answer herein by serving
its
registered
agent
for
service
of
process;
namely,
C
T
Corporation System, 5615 Corporate Blvd., Ste. 400B, Baton Rouge,
Louisiana.
5.
Cal Dive International, Inc. is thought to be a foreign
corporation, organized and existing by virtue of the laws of the
State of Delaware, having its principal place of business in
Houston, Texas, but it is licensed to do and doing business in this
State, and it may be cited to appear and answer herein by serving
its
registered
agent
for
service
of
process;
namely,
C
T
Corporation System, 5615 Corporate Blvd., Ste. 400B, Baton Rouge,
Louisiana.
6.
Cal Dive Offshore Contractors, Inc. is thought to be a
foreign corporation, organized and existing by virtue of the laws
of the State of Delaware, having its principal place of business in
Houston, Texas, but it is licensed to do and doing business in this
State, and it may be cited to appear and answer herein by serving
its
registered
agent
for
service
of
process;
namely,
C
T
Corporation System, 5615 Corporate Blvd., Ste. 400B, Baton Rouge,
Louisiana.
SEAMAN STATUS
7.
That, at all times relevant herein, Defendants owned,
operated, managed and controlled the MR. FRED.
The MR. FRED is a
4 point dynamically positioned dive support vessel, 168.0 feet in
length, 38.0 feet in beam, and 13.0 feet in depth.
Exhibit “A”
8.
That, at all times hereinafter mentioned, the MR. FRED
was engaged to perform underwater construction work in the Gulf of
Mexico, off the Louisiana coast.
9.
That, at all times hereinafter mentioned, Bailey was
assigned by these Defendants to work, as a tender/diver, aboard the
MR.
FRED,
on
more
or
less
a
permanent
basis.
Bailey
earned
$72,292.00 in the year 2007, while working for these Defendants.
10.
That, at all times hereinafter mentioned, Bailey’s work,
as a tender/diver, contributed to the mission and purpose of the
MR. FRED.
ACCIDENT AND INJURY
11.
That, Bailey re-alleges and re-avers Paragraphs 1 thru 10
above, as set forth hereinafter in extenso.
12.
That, Bailey while employed by these Defendants as a
diver/tender on, with, and aboard the MR. FRED was caused to suffer
an accident and injuries - - a 50 % collapse of his right lung - which first became apparent and known to him on November 19, 2008,
when was examined by a physician at Lafayette Walk-In Clinic; in
particular, on or about November 14, 2008, as a clean diver Bailey
made a dive to 108 feet for a total bottom time of 52 minutes;
Bailey experienced no problem on his descent; the work on the
bottom involved squaring up a flange with an impact wrench; at the
conclusion
of
the
dive,
Bailey
began
his
ascent
by
topside
personnel hoisting him up the umbilical; Bailey had a water stop
for about 2 minutes at 30 feet; however, Bailey arrived on the
surface 12 seconds early; thereafter, Bailey stayed by the bottom
of the ladder to dissipate that extra time; Bailey then climbed the
ladder, without struggle and came aboard the MR. FRED; once on
deck, he got undressed and got into a shower to rinse off - - prior
to entering the chamber for the surface phase of decompression;
while in the shower, he experienced mild pain in the substernal
area of the chest; while getting into the chamber, Bailey felt some
mild pain in the right upper back in the area of the right
scapular; Bailey did not experience any shortness of breath; Bailey
entered the chamber without violating the surface interval time;
Bailey
completed
the
SurD02;
Bailey
went
about
his
business
thinking that he had simply strained a muscle in his chest; by the
end of the work shift, he thought it appropriate to notify the dive
superintendent and the shift supervisor of the discomfort he had
experienced; the dive superintendent and shift supervisor told
Bailey that the discomfort he described to them was likely the
result of “sore muscles” from using the hydraulic impact wrench
during his dive; the dive supervisor sent the DMT to recheck Bailey
at about 4:00 a.m. on November 15, 2008; Bailey was assured that
his neurological examination was normal and that his breath sounds
were clear; Bailey was told again that he simply suffered from a
muscle strain; Bailey went to bed and slept, without interruption,
until 10:45 a.m. the next morning; when he awoke, Bailey’s chest
pain seemed to be resolved; he remained on board the vessel for a
few more days; the pain totally dissipated; Bailey left the MR.
FRED and returned home on November 19, 2008; Bailey presented to
the Lafayette Walk-in-Clinic for, what he believed to be a muscle
strain and was advised, for the first time, that he had suffered a
collapse of the right lung; Bailey was referred to a pulmonologist;
on November 20, 2008; the pulmonologist confirmed the diagnosis
made the day before, and inserted a chest tube to evacuate the air
and inflate his right lung; the chest tube remained until November
24, 2008 when it was removed and the inflated status of the right
lung maintained; all throughout, Bailey was told by the company
hyperbaric medicine specialist that since he had no history of
barotrauma or injury to the chest wall, the etiology of his
pneumothorax was thought to be spontaneous - - not work related;
Bailey has discovered since, that the cause of his pneumothorax was
more likely than not, related to improper decompression on ascent.
13.
That, the said accident, injuries and damage suffered by
Bailey were caused solely by reason of the negligence of these
Defendants, as well as the unseaworthiness of the MR. FRED, without
any negligence on Bailey’s part causing or contributing thereto.
14.
That, the negligence of these Defendants, as well as the
unseaworthiness of the MR. FRED, consisted of the following
exclusive acts and omissions, as follows:
•
in failing to warn and/or failing to adequately
warn Bailey concerning conditions in the workplace
which caused it to be unfit, unsafe and unsuitable;
•
in failing to instruct and/or failing to adequately
instruct Bailey concerning his assent, from bottom;
•
in failing to provide Bailey with a sufficient
compliment of co-employees; that is, sufficient in
number and in training, to perform the work then
and there in progress;
•
in failing to take precautions to prevent, or for
that matter, in failing to take any precautions
non-
concerning the unfit, unsafe and unsuitable
workplace conditions designed specifically to
prevent an accident, injuries and damage as
suffered by Bailey;
•
in failing to properly regulate Bailey’s ascent on
the completion of his dive on November 14, 2008;
•
in failing to adopt practices, policies and
procedures designed specifically to prevent an
accident, injuries and damage as suffered by
Bailey;
•
in failing to provide Bailey with adequate,
sufficient and safe tools, machinery and equipment;
•
in failing to provide Bailey with a safe place in
which to work;
•
in failing to provide him with prompt and proper
medical care and attention;
•
in that the dive superintendent, dive supervisor
and the DMT led Bailey to believe that he had
suffered a minor and inconsequential muscle
strain/muscle sprain;
•
in violating USCG Regulations, in general and, in
particular, Title 46 CFR §42.15-75, among others,
and
•
in violating OSHA Standards, in general and, in
particular, Title 29 CFR §§1910, 1915, 1918, and
1926.
15.
In addition, these Defendants were negligent “per se,”
because
it
violated
certain
standards
promulgated
by
the
Occupational Safety and Health Administration, commonly referred to
as OSHA Standards, and its failure in this respect, played, a part,
in either causing or contributing to the injuries suffered by
Bailey.
Kernan v. American Dredging Co., 355 U.S. 426, 78 S. Ct.
394; 2 L.Ed. 2d 382 (1957);
Choa v. Mallard Bay Drilling, Inc.,
534 U.S. 2351, 122 S. Ct. 738, 151 L.Ed. 2d 659 (2002) Roy Crook &
Sons, Inc. v. Allen, 778 F. 2d 1037 (5th Cir. 1985); Smith v.
Transworld Drilling Co., 772 F. 2d 157,162 (5th Cir. 1985).
Furthermore, a violation of any applicable OSHA Regulation results
in a rebuttable presumption that the violation in question caused
Bailey’s
accident.
Reyes v. Vantage S.S. Co., 609 F. 2d 140, 144-
45 (5th Cir. 1980) (citing the PENNSYLVANIA 86 U.S. (19 Wall.)
125,136 (1873).
Moreover, these Defendants’ violation of OSHA
Standards precludes the assessment of comparative negligence, if
any.
45 U.S.C. § 53; Kernan v. American Dredging, Co., 355 U.S.
426, 78 S. Ct. 394, 2 L.Ed. 2d 382 (1957); Fuszek v. Royal King
Fisheries, Inc., 98 F. 3d 514 (9th Cir. 1996);
Roy Crook & Sons,
Inc. v. Allen, 778 F. 2d 1037 (5th Cir. 1985).
16.
In addition, or in the alternative, in the event that the
MR. FRED was, at the time of Bailey’s accident and injuries, a
vessel inspected by the United States Coast Guard, Bailey
asserts
that these Defendants were negligent “per se,” because it/they
violated certain regulations promulgated by the United States Coast
Guard, and that its/their failure in this respect, played, a part,
in either causing or contributing to the injuries and damage
suffered by Bailey. Kernan v. American Dredging Co., 355 U.S. 426,
78 S. Ct. 394; 2 L.Ed. 2d 382 (1957); Roy Crook & Sons, Inc. v.
Allen, 778 F. 2d 1037 (5th Cir. 1985); Smith v. Transworld Drilling
Co., 772 F. 2d 157,162 (5th Cir. 1985).
Furthermore, a violation
of any applicable United States Coast Guard Regulation results in
a rebuttable presumption that the violation in question caused
Bailey’s accident.
Reyes v. Vantage S.S. Co., 609 F. 2d 140, 144-
45 (5th Cir. 1980)(citing the PENNSYLVANIA 86 U.S. (19 Wall.)
125,136 (1873).
States
Coast
Moreover, these Defendants’ violation of United
Guard
Regulations
precludes
the
assessment
of
comparative negligence, if any. 45 U.S.C. § 53; Kernan v. American
Dredging, Co., 355 U.S. 426, 78 S. Ct. 394, 2 L.Ed. 2d 382 (1957);
Fuszek v. Royal King Fisheries, Inc., 98 F. 3d 514 (9th Cir. 1996);
Roy Crook & Sons, Inc. v. Allen, 778 F. 2d 1037 (5th Cir. 1985).
17.
That, by reason of the negligence of these Defendants, as
well as the unseaworthiness of the MR. FRED, Bailey sustained great
bodily injuries; he became and still remains sick and disabled;
that,
among
other
things,
Bailey
was
caused
to
suffer
a
pneumothorax; that he has been caused to suffer a severe, painful
and lasting injury with resultant constant pain and distress; that
he has been incapacitated from his work and so prevented from
pursuing his ordinary occupation and still and will continue to be
incapacitated for some time to come; that his ability to perform
work has been, and will be, as a result of said injuries greatly
lessened, diminished and affected; that his ability to engage in
recreational activities has been lessened, diminished and affected
as a result of said injuries; that Bailey is informed and believes
that the injuries which he suffered as a result of the negligence
of these Defendants, as well as by the unseaworthiness of the MR.
FRED are permanent and create a condition which seriously and
permanently affects his general health and will cause disability
and seriously interfere with his enjoyment of life; that he has
required and will require in the future medical treatment as a
result of said injuries and may require operative treatment; that
Bailey
is
informed
and
believes
that
he
has
been
otherwise
permanently injured and that he has become and remains seriously
and permanently disabled.
18.
suffered,
That, as a consequence of the foregoing, Bailey has
is
suffering
and
will
continue
to
suffer
damages
including, without limitation, past and future physical and mental
pain
and
suffering,
past
disability
and
permanent
future
disability, loss of wages, loss of earning capacity, loss of fringe
benefits, loss of enjoyment of life and past and future medical
expenses.
MAINTENANCE AND CURE
19.
That, Bailey re-alleges and re-avers Paragraphs 1 thru 18
above, as set forth hereinafter in extenso.
20.
That, Bailey, by virtue of the injuries incurred while in
the service of the MR. FRED, alleges that he is entitled to
maintenance and cure until he reaches maximum medical cure.
DAMAGES
21.
That, Bailey re-alleges and re-avers Paragraphs 1 thru 20
above, as set forth hereinafter in extenso.
22.
In consequence, Bailey is entitled to damages under the
Jones Act, as well as under the general maritime law in the amount
of
FOUR MILLION
($4,000,000.00)
DOLLARS
as
nearly
as
can
be
estimated.
WHEREFORE, Bailey prays that these Defendants be served with
a copy of this, his, Seaman’s Complaint for Damages and that they
be duly cited to appear and answer herein; that after the lapse of
all legal delays and due proceedings had, that there be judgment
herein, in favor of Bailey and against these Defendants in the full
and true sum of FOUR MILLION ($4,000,000.00) DOLLARS, as nearly as
the same can now be estimated, together with legal interest on all
amounts due, as well as for all costs of these proceedings and for
trial by jury.
LAWRENCE N. CURTIS, LTD.
(A Professional Law Corporation)
300 Rue Beauregard, Bldg. C
Post Office Box 80247
Lafayette, Louisiana 70598-0247
Telephone: (337) 235-1825
Facsimile: (337) 237-0241
E-Mail: larry@larrycurtis.com
BY:s/Lawrence N. Curtis
LAWRENCE N. CURTIS (4678)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?