Lebeouf, Jr. v. Palfinger Marine U S A Inc et al

Filing 39

MEMORANDUM RULING re 23 RULE 12(b)(6) MOTION to Dismiss For Failure to State a Claim Upon Which Relief Can Be Granted filed by Zurich American Insurance Co. Signed by Judge James D Cain, Jr on 11/19/2020. (crt,Benoit, T)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

DANIEL J LEBEOUF JR

CASE NO. 6:20-CV-00813

VERSUS

JUDGE JAMES D. CAIN, JR.

PALFINGER MARINE U S A, INC. ET AL MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Before the Court is “Defendant, Zurich American Insurance Company’s Rule
12(b)(6) Motion to Dismiss Plaintiff’s Complaints for Failure to State a Claim Upon Which
Relief can be Granted” (Doc. 23) wherein Zurich moves to dismiss Plaintiff’s claims
because he does not fall within the class of individuals specifically enumerated as being
allowed to recover for bystander claims pursuant to Louisiana Civil Code article 2315.6
and he does not meet the “zone of danger” test set forth in General Maritime Law.
Alternatively, Zurich maintains that the claims alleged by Plaintiffs for negligent
inspections must be dismissed because Plaintiffs have failed to plead facts to establish that
Zurich was an inspector or caused inspections to be made.
FACTUAL ALLEGATIONS
On June 30, 2019, Shell Oil Company (“Shell”) was conducting a safety
exercise/test on Lifeboat 6 which it owned. 1 During that test, the cables, hooks, davits,
davit system or other mechanisms of the lifeboat failed allegedly resulting in the lifeboat

1

Complaint, Doc. 1, ¶ 5.

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breaking loose and falling over seventy (100) feet into the Gulf of Mexico. 2 Brandon
Dupre, who was working as an employee of Shell and a friend of Plaintiff, Daniel J.
Lebeouf, Jr. suffered severe physical injuries due to the incident and died from drowning. 3
When the incident occurred, Lebeouf an employee of Danos, Inc.,

4

attempted to

save his friend, Brandon Dupre and witnessed his death causing him post-traumatic stress
disorder, trouble sleeping at night, lower back pain, etc. 5
In their Second Amended Complaint, Plaintiff alleges that in addition to being the
insurer of Palfinger Marine USA, Inc., Zurich was responsible for the annual inspection of
the lifeboat and owed the deceased and Plaintiff a general duty to provide a safe working
environment. 6 Plaintiff further alleges that Zurich failed to warn or have the defective
cables/boat repaired/replaced. 7
RULE 12(b)(6) STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint when it
fails to state a claim upon which relief can be granted. The test for determining the
sufficiency of a complaint under Rule 12(b)(6) is that “a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief.” Hitt v. City of Pasadena,

2

Complaint, Doc. 1, ¶ 7.
Id. ¶ 8.
4
Id. ¶ 4.
5
Id. ¶ 9
6
Second Supplemental And Amending Petition, Doc. 14, ¶ ¶ 10 and 11, 23(A).
7
Id. ¶ 23(A).
3

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561 F.2d 606, 608 (5th Cir. 1977) (per curium) citing Conley v. Gibson, 355 U.S. 41, 4546, 78 S.Ct. 99, (1957)).
Subsumed within the rigorous standard of the Conley test is the requirement that
the plaintiff’s complaint be stated with enough clarity to enable a court or an opposing
party to determine whether a claim is sufficiently alleged. Elliot v. Foufas, 867 F.2d 877,
880 (5th Cir. 1989). The plaintiff’s complaint is to be construed in a light most favorable
to plaintiff, and the allegations contained therein are to be taken as true. Oppenheimer v.
Prudential Securities, Inc., 94 F.3d 189, 194 (5th Cir. 1996). In other words, a motion to
dismiss an action for failure to state a claim “admits the facts alleged in the complaint, but
challenges plaintiff’s rights to relief based upon those facts.” Tel-Phonic Servs., Inc. v. TBS
Int’l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992).
“In order to avoid dismissal for failure to state a claim, a plaintiff must plead specific
facts, not mere conclusory allegations. . . .” Guidry v. Bank of LaPlace, 954 F.2d 278, 281
(5th Cir. 1992). “Legal conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.
1995). “[T]he complaint must contain either direct allegations on every material point
necessary to sustain a recovery . . . or contain allegations from which an inference fairly
may be drawn that evidence on these material points will be introduced at trial.” Campbell
v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995).
Under Rule 8 of the Federal Rules of Civil Procedure, the pleading standard does
not require a complaint to contain “detailed factual allegations,” but it “demands more than
an unadorned, the defendant-unlawfully-harmed-me accusation.” Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). A complaint that offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Id. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id., at 557, 127 S.Ct. 1955.
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570, 127
S.Ct. 1955.
LAW AND ANALYSIS
Zurich maintains that Plaintiff’s claims that Zurich is an inspector or caused to have
an inspection made are deficient because (1) Plaintiff is not a proper plaintiff within the
limits of Louisiana Civil Code Article 2315.6 or under General Maritime Law, (2)
Plaintiff’s claims of “negligent inspection” and/or “failure to inspect” are conclusory as to
the facts, (3) Plaintiff cannot establish the existence of a duty, or a relationship between
Zurich and Decedent, (4) Plaintiff cannot establish pursuant to Louisiana Civil Code article
2317.1 that Zurich had custody of the lifeboat, and (5) Plaintiff cannot maintain a claim
under the Louisiana Products Liability Act because Zurich is not a manufacturer.
Emotional Distress
Zurich maintains that Plaintiff is not eligible to recover damages for emotional
distress as a bystander under General Maritime Law or under Louisiana Law. Louisiana
Civil Code article 2315.6 specifically enumerates those individuals as follows:
(1)

The spouse, child or children, and grandchild or grandchildren of the
injured person, or either the spouse, the child or children, or the
grandchild or grandchildren of the injured person.
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(2)
(3)
(4)

The father and mother of the injured person, or either of them.
The brothers and sisters of the injured person, or any of them.
The grandfather and grandmother of the injured person, or either
of them.

Plaintiff has not alleged that he falls within any of the enumerated categories of
individuals permitted by Louisiana law to recover for emotional distress as a result of
witnessing an accident. The Court agrees and will dismiss Plaintiff’s claims for emotional
distress and/or mental anguish under Louisiana law and General Maritime law.
Negligent inspection and/or failure to inspect
In his initial Complaint, Plaintiff alleges that he suffered both mental and physical
injuries as a result of the death of Brandon M. Dupre. He further alleges that he “tried to
save and/or retrieve his friend, Brandon M. Dupre, from lifeboat #6 and/or its debris and/or
ocean and witnessed his death causing him post-traumatic stress disorder, trouble sleeping
at night, lower back pain, etc.” 8
Plaintiff, through counsel, asserts in his opposition that through oral representations,
counsel was apprised that Zurich conducted an inspection or commissioned another party
to conduct an inspection on its behalf that uncovered the defective conditions that lead to
Brandon Dupre’s severe physical injuries and wrongful death. Thus, Plaintiff contends that
he has a claim against Zurich for negligent inspection if Zurich or someone on its behalf
conducted an inspection, discovered a defective condition, and did nothing about it and/or
failed to remove the vessel from use. Plaintiff complains that due to the infancy of this
case, they have not had the opportunity to conduct discovery.

8

Complaint, Doc.1, ¶ 9.

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Zurich maintains that Plaintiff has failed to allege that he suffered physical injuries
as a direct result of the accident, or that he was ever at immediate risk of physical harm to
his person. The Court must accept as true Plaintiff’s allegations and in the light most
favorable to Plaintiff. The Court is cognizant that this case is in its infancy and discovery
has not been conducted. Therefore, the motion to dismiss will be denied as to the
negligence claim; however, the Court would entertain a motion for summary judgment to
flesh out the facts in this case as to Zurich’s duty and the physical injuries Plaintiff alleges
he suffered should Zurich choose to file a dispositive motion.
CONCLUSION
For the reasons set forth above, the Motion to Dismiss will be granted in part and
denied in part. The Motion to Dismiss will be granted to the extent that Plaintiff’s claim
for emotional distress will be dismissed with prejudice; otherwise the motion will be
denied.
THUS DONE AND SIGNED in Chambers, this 19th day of November, 2020.

______________________________________
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE

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