Valentine v. L & L Sandblasting Inc et al

Filing 25

RULING re 5 MOTION to Dismiss L & L Sandblasting Inc and American Equity Underwriters Inc filed by L & L Sandblasting Inc, American Equity Underwriters Inc. Based on the foregoing reasons, the motion to dismiss is DENIED as to Valentine's Jones Act claim against L&L and AEU. Signed by Magistrate Judge Carol B Whitehurst on 7/1/2016. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
VALDON VALENTINE

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CIVIL ACTION NO. 6:15-2905

VERSUS

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JUDGE REBECCA F. DOHERTY

L & L SANDBLASTING, INC.
CORPORATION

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MAGISTRATE JUDGE WHITEHURST

RULING

Pending before me is the Motion to Dismiss Pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) filed by defendants, L&L Sandblasting, Inc. (“L&L) and
The American Equity Underwriters, Inc. (“AEU”), on February 1, 2016 [rec. doc. 5].
Plaintiff, Valdon Valentine (“Valentine”), filed opposition on February 22, 2016. [rec.
doc. 9]. Defendants filed a reply on March 24, 2016. [rec. doc. 17]. Oral argument was
held on April 20, 2016, after which I took the motion under advisement.
On May 9, 2016, I issued a Report and Recommendation, in which I recommended
that the motion be granted as to Valentine’s direct action claim against AEU, and denied
as to Valentine’s Jones Act claim against L&L and AEU. [rec. doc. 19]. By separate
Order, I allowed plaintiff to amend his complaint to clarify his claim to Jones Act status
without prejudice to defendant’s right to reurge its Motion to Dismiss after plaintiff
amended. [rec. doc. 20]. I further reserved making a recommendation on the Motion to
Dismiss plaintiff’s Jones Act claim until after defendants had the opportunity to file a

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supplemental motion, if necessary. [rec. doc. 19]. On June 3, 2016, L&L and AEU filed
a Supplemental Memorandum in Support of Motion to Dismiss. [rec. doc. 24].
For the following reasons, I recommend that the motion to dismiss, as
supplemented, be DENIED as to Valentine’s Jones Act claim.
I. Background
Valentine filed this Complaint under the Jones Act, asserting that he was injured
while working as a sandblaster for L&L, which provided services for the energy industry
in the Gulf of Mexico. [Complaint, ¶¶ 1, 3].
In the First Supplemental and Amending Complaint, Valentine alleges that L&L
recruited him as a sandblaster and painter to work as a seaman aboard a fleet of vessels
which were leased or chartered by L&L for sandblasting purposes. [Amended Complaint,
¶ 2]. He states that he directly contributed to the mission of the vessels, as the vessels
were chartered primarily for sandblasting and painting purposes.
L&L represents in its mission statement that it provides both onshore and offshore
sandblasting services. [Amended Complaint, ¶ 3]. Both its advertisements and mission
statement indicate that L&L actively pursues clients offshore for the purpose of
sandblasting operations. Additionally, L&L provides, among other things, boats which
serve as staging platforms for purposes of these sandblasting operations.
Valentine alleges that he served 70% of his temporal position as a sandblaster and
seaman aboard a vessel serving as a sandblasting staging area. [Amended Complaint, ¶
3]. He states that due to the winter’s unsuitable weather conditions and the consequent

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perils of the sea, L&L recruited him to work primarily between the months of March and
November.
On October 24, 2014, Valentine was allegedly injured when an 8-ton unit sand
hopper owned by L&L exploded while he was working on the top of a fixed platform
owned by Arena Oil & Gas (“Arena”). [Complaint, ¶ 8]. Valentine states that during the
season of work in 2014, he had spent more than 70% of his time performing his duties as
a seaman aboard the chartered vessel. [Amended Complaint, ¶ 5]. However, towards the
end of his season, and after a voyage was completed, he was temporarily allowed to
perform work activities aboard Arena’s fixed platform in the Gulf of Mexico to complete
the season. He indicates that during this time, he was using the same equipment that
would have been used aboard the vessels on which he normally worked.
In the Motion to Dismiss [rec. doc. 5] and the Supplemental Memorandum [rec.
doc. 24], L&L and AEU argue that Valentine is not entitled to seaman status because: (1)
he was employed as a sandblaster, and therefore exclusively covered by the Longshore
and Harbor Workers’ Compensation Act, and (2) Valentine lacks the necessary
connection to a vessel or fleet of vessels.
II. Analysis
Valentine claims that he is a Jones Act seaman, while defendants argue that he is
actually a longshoreman. It is well-settled that the Jones Act and the LHWCA are
"mutually exclusive compensation regimes." Becker v. Tidewater, 335 F.3d 376, 386 (5th
Cir. 2009); Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 553, 117 S.Ct. 1535, 137

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L.Ed.2d 800 (1997); see also Chandris, Inc. v. Latsis, 515 U.S. 347, 359, 115 S.Ct. 2172,
2185 (1995) (citing McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 347, 111 S.Ct. 807,
813, 112 L.Ed.2d 866 (1991)) (“[w]ith the passage of the LHWCA, Congress established
a clear distinction between land-based and sea-based maritime workers. The latter, who
owe their allegiance to a vessel and not solely to a land-based employer, are seamen.”).
To maintain a cause of action under the Jones Act, the plaintiff must be a seaman.
Land-based workers are not seamen. Alexander v. Express Energy Services Operation,
L.P., 784 F.3d 1032, 1033 (5th Cir. 2015) (citing Hufnagel v. Omega Service Industries,
Inc., 182 F.3d 340, 346 (5th Cir. 1999)). The key to seaman status is employment-related
connection to a vessel in navigation. Chandris, 515 U.S. at 357, 115 S.Ct. at 2184 (citing
Wilander, 498 U.S. at 355, 111 S.Ct. at 817). Although “[i]t is not necessary that a
seaman aid in navigation or contribute to the transportation of the vessel, . . . a seaman
must be doing the ship's work.” Id. (citing Wilander, 498 U.S. at 354, 111 S.Ct. at 817).
The requirement that an employee's duties must ‘contribut[e] to the function of the vessel
or to the accomplishment of its mission’ captures well an important requirement of
seaman status.” Wilander, 498 U.S. at 355, 111 S.Ct. at 817.
An injured person claiming the benefits of the Jones Act . . . has the burden of
establishing seaman status." Becker, 335 F.3d at 389 n. 8 (citing Barrett v. Chevron,
U.S.A., Inc., 752 F.2d 129, 132 (5th Cir. 1985)). To determine if an individual worker is
a seaman, and therefore entitled to the protections of the Jones Act, he must prove that:
(1) his duties contribute to the function of the vessel or to the accomplishment of its

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mission, and (2) the worker must have a connection to a vessel in navigation (or to an
identifiable group of such vessels) that is substantial in terms of both its duration and its
nature (the "substantial-connection" prong). (emphasis added). Alexander, 784 F.3d at
1034 (citing Chandris, 515 U.S. at 368, 115 S.Ct. at 2190).
In considering a motion to dismiss, the Court accepts “all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v.
Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). Here, Valentine alleges
that L&L recruited him as a sandblaster and painter to work as a seaman aboard a fleet of
vessels which were leased or chartered by L&L for sandblasting purposes. He states that
he directly contributed to the mission of the vessels, as the vessels were chartered
primarily for sandblasting and painting purposes. Additionally, he asserts that he served
70% of his temporal position as a sandblaster and seaman aboard a vessel serving as a
sandblasting staging area. He further indicates that during the time that he was
temporarily assigned to the fixed platform on which he was injured, he was using the
same equipment that would have been used aboard the vessels on which he normally
worked.
Defendants first argue that the exclusive remedy for sandblasters is under the
LHWCA, not the Jones Act. However, sandblasters have been found to be seaman under
certain circumstances. See Scarborough v. Clemco Industries, 264 F.Supp.2d 437 (E.D.
La. 2003) (upholding jury’s finding of seaman status as to sandblaster); Wilander, supra

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(finding that paint foreman who performed a substantial part of work directing
sandblasting and painting affixed platforms from paint boat was not precluded from
having seaman status under Jones Act merely because he did not perform
transportation-related functions on board boat). The inquiry into seaman status is of
necessity fact specific; it will depend on the nature of the vessel and the employee's
precise relation to it. Wilander, 498 U.S. at 356, 111 S.Ct. at 818 (citing Desper v.
Starved Rock Ferry Co., 342 U.S. 187, 190, 72 S.Ct. 216, 218, 96 L.Ed. 205 (1952) (“The
many cases turning upon the question whether an individual was a ‘seaman’ demonstrate
that the matter depends largely on the facts of the particular case and the activity in which
he was engaged at the time of injury”.)). Based on the facts pleaded in the amended
complaint, the undersigned cannot definitively find that Valentine’s work as a sandblaster
precludes him from seaman status.
Defendants’ second argument is that Valentine lacks the necessary connection to a
vessel or fleet of vessels required for seaman status. In the amended complaint, Valentine
alleges that he worked as a sandblaster and painter aboard a fleet of vessels which were
leased or chartered by L&L, and that he directly contributed to the mission of the vessels,
which were chartered primarily for sandblasting purposes. Additionally, he alleges that
he served 70% of his temporal position as a sandblaster and seaman aboard a vessel, and
that during the time that he was temporarily assigned to the fixed platform, he was using
the same equipment that would have been used aboard the vessels on which he normally

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worked. At this stage of the proceedings, the undersigned finds that Valentine’s amended
complaint sufficiently states a connection to a vessel or fleet of vessels for Jones Act
purposes.
Accordingly, defendants’ Motion to Dismiss Plaintiff’s Jones Act claim is
DENIED.
III. Conclusion
Based on the foregoing reasons, the motion to dismiss [rec. doc. 5] is DENIED as
to Valentine’s Jones Act claim against L&L and AEU.
Signed this 1st day of July, 2016, at Lafayette, Louisiana.

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