Opinion
Civil Action No. 00-1815, Section "T"(2)
August 23, 2002
ORDER AND REASONS
This cause came for bench trial on a previous date between the Plaintiffs, Dafydd Hoffman and Andrew Mariano, and the Defendants, Halcot Shipping Corp. and Zodiac Maritime Agencies, Ltd. ("Halcot" and "Zodiac") for damages that Hoffman and Mariano allegedly sustained on February 26, 1999. Prior to trial, Stolt Parcel Tankers, Inc. was dismissed and the claim of plaintiff Matthew Stann was settled. and has since been dismissed. Prior to trial, the future loss of earnings capacity claim of plaintiff Dafydd Hoffman, was withdrawn. At the outset of the trial, the parties stipulated that should liability be found, the alleged past lost wage claims of Hoffman and Mariano are agreed upon. The parties have also stipulated that, on the night of February 26, 1999, the M/T HYDE PARK collided with barges in tow of the M/V HERMAN POTT and thereafter, the HYDE PARK and one or more breakaway barges struck the Port Ship Service facility. The Court, having heard the testimony at trial and having considered the record, the evidence, the applicable law, and the memoranda submitted by the parties, now makes the following findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. To the extent that any conclusion of law is deemed to be a finding of fact, it is adopted as such; and likewise, any finding of fact that is deemed to be a conclusion of law is so adopted.
FINDINGS OF FACT
With regard to the Courts factual findings, if no exhibit is specifically referenced, that particular finding is based upon the testimony given by various witnesses at trial.
1. Plaintiffs, Dafydd Hoffman and Andrew Mariano, were launch operators at Port Ship Service, Inc. in Arabi, Louisiana on February 26, 1999, the date of the casualty that gave rise to this litigation.
2. Port Ship Service, at all material times, operated a launch or water taxi service on the east bank of the Mississippi River at Arabi, Louisiana and was the employer of the plaintiffs herein. Port Ship is not a party to this litigation.
3. The M/T HYDE PARK, an oceangoing tanker, at all material times, was owned by Halcot and managed by Zodiac. Prior to the casualty of February 26, 1999, the HYDE PARK had been at anchor in the New Orleans General Anchorage, in the Mississippi River.
The Casualty
4. At about 11:00 p.m. on the evening of February 26, 1999, the HYDE PARK, after getting underway from the anchorage, collided with barges in tow of the M/V HERMAN POTT. The HYDE PARK and one or more barges that had broken loose from the HERMAN POTT flotilla came down river and struck the Port Service launch facility.
5. Before the casualty occurred on the evening of February 26, 1999, three vessels were moored at Port Ship Service: the launches LITTLE RAY and MISS LESLIE and the stores boat MISS RAE ANNE. These three vessels were all secured to a mooring barge that, in turn, was secured to the Port Ship dock.
6. The Mississippi River, on the day of the HYDE PARK casualty, was at a high stage and there was a strong current. The U.S. Army Corps of Engineers records for the period in question reflect that the river was at a height of 13 feet on the Carrolton gauge at New Orleans, which wold produce a current surface velocity of 5.5 miles per hour.
7. The launch LITTLE RAY, at the upper end of the mooring barge, was secured with a single line leading from the boat to mooring bits on the barge. A loop on the end of the line had been thrown over the barge bitts to secure the boat. The launch MISS LESLIE was moored astern the LITTLE RAY towards the lower end of the barge in a similar fashion, that is, with a single line leading from the boat to the barge bitts. Testimony of Dafydd Hoffman and Jeremiah Arabie.
8. The stores boat MISS RAE ANNE was secured to the stern or down river end of the barge by means of two lines (one on each side) running forward on each side of her bow to a set of bitts on the barge. Testimony of Andrew Mariano and Jeremiah Arabie.
9. Matthew Stann, the Port Ship Service dispatcher, heard the radio traffic in the dock office suggesting that there had been a collision upriver and a ship and several barges were heading downriver. He notified the company owners. Rod and Ray Willhoft, and instructed launch operators Hoffman and Mariano to go to their boats and try to move them into the river in order to avoid possible damage. Testimony of Hoffman and Mariano.
10. The only other Port Ship employee at the facility that evening, besides Hoffman, Mariano and Stann, was Jeremiah Arabie, a deckhand. Although the evening shift normally had two deck hands (one for each launch boat), neither of the two deckhands showed up for work that evening making it necessary for the dispatcher to ask Port Ship's Poydras facility to send a deckhand up to assist. That deckhand was Mr. Arabie. Testimony of Hoffman and Arabie.
Claims of Plaintiff Dafydd Hoffman
11. Hoffman, followed by deckhand Arabie, ran out of the dock office and down a set of stairs leading to the mooring barge, followed by Mariano. Hoffman jumped aboard his launch, the LITTLE RAY, started her engines, and was cast off from the dock by Arabie, who threw the line off the barge bitts after Hoffman came ahead on his engines, thus putting slack in the mooring lines. Testimony of Hoffman and Arabie.
12. Hoffman testified that the LITTLE RAY (48 feet in length and weighing in excess of 26 tons) would put a heavy strain on her mooring line in the high river and strong current, and in order to get her underway, the engines would have to be put in gear, and the deckhand assist. Testimony of Hoffman.
13. Hoffman successfully moved the LITTLE RAY out into the river, and away from the Port Ship Service dock, in order to avoid a possible collision with the southbound HYDE PARK and several breakaway barges. After maneuvering away from the dock, however, the LITTLE RAY was struck on the starboard side by either the ship or one of the barges.
14. As a result of the LITTLE RAY being struck by either the HYDE PARK or one of the barges, Hoffman was thrown into the console on the dash and out of his seat to the left. Hoffman banged his left knee and twisted it in the process of regaining his chair and gunning the engines in order to avoid the oncoming traffic. Testimony of Hoffman.
15. Hoffman returned to work after his normal three day off period subsequent to the accident. Hoffman's knee worsened, and he saw Dr. George Murphy, orthopaedist, on March 16, 1999. Testimony of Hoffman. An MRI scan was performed which indicated a two centimeter medial meniscus tear, both horizontally and vertically, as well as medial synovial plica and chrondromalacia. Testimony of Dr. George Murphy.
16. Dr. George Murphy, Hoffman's treating physician, and Dr. Charles Murphy, the physician who operated of Hoffman, testified that it was more probable than not that Hoffman's knee injury was caused by the February 26, 1999 incident. Testimony of Dr. Charles Murphy; Testimony of Dr. George Murphy. The Court adopts the testimony of Dr. Charles Murphy and Dr. George Murphy that the knee injury sustained by Hoffman was a direct result and was proximately caused by the stipulated negligence of the defendants.
17. Hoffman underwent arthroscopic surgery performed by Dr. Charles Murphy at Kenner Regional Medical Center on May 18, 2000 to repair the meniscus tear. Testimony of Dr. Charles Murphy.
18. An April 5, 1999 MRI of Hoffman's knee showed arthritic changes. Both of Hoffman's treating physicians, however, admitted that they had no way of determining how long these changes had been present or whether they pre-dated the incident. The possible progression of arthritic changes in the future can not be fairly attributable to the February 26, 1999 incident.
19. Hoffman failed to attend a number of physical therapy sessions as well as post-operative follow-up appointments with Dr. Charles Murphy.
20. Dr. Murphy testified that the May 18, 2000 knee surgery was highly successful. Testimony of Dr. Charles Murphy.
21. Hoffman went back to work as a launch operator at Port Ship. In the summer of 2001 he left Port Ship for employment with E.N. Bisso Son, Inc. as a deckhand on a harbor tug. Testimony of Hoffman. Before starting work at Bisso, Hoffman passed a pre-employment physical and he has performed his job without any complaints from his supervisors.
22. The Court adopts Dr. Charles Murphy's testimony that Hoffman sustained a three percent disability to his entire body.
23. The Court finds that Hoffman is entitled to $35, 000.00 in general damages as a result of the injury to his knee.
24. Hoffman sustained $2,592.00 in stipulated past lost wages as a result of the surgery.
25. Hoffman has not suffered any future lost wages as he is currently employed at E.N. Bisso Son, Inc. as a deckhand on a harbor tug. If Hoffman performs his job well, he may become a tug captain, earning considerably more than he did at Port Ship Service.
26. Hoffman incurred stipulated past medical bills in the amount of $21,038.00.
Claims of Plaintiff Andrew Mariano
27. Mariano testified that he came down the stairway to the mooring barge, and then boarded his boat, the MISS LESLIE. Mariano attempted to heave in and cast off his boat's single mooring line and injured his right shoulder as well as his back. Testimony of Mariano.
28. Mariano admitted that the usual procedure for untying a boat like his launch, the MISS LESLIE, is for the operator to come ahead on the engines and put slack on the mooring line. However, Mariano pointed out that when Hoffman cranked the engines of the LITTLE RAY, the wheelwash of that boat was coming down on the MISS LESLIE and after Hoffman cranked up, Mariano could not have gone forward because Hoffman's boat was blocking him. Mariano also suggested that if he had a second deckhand, he would have been able to move his boat out that night.
29. On March 9, 1999, Mariano sought medical attention from Dr. Michael Howard at the Health Care Center of St. Bernard for pain in both his neck and shoulder.
30. Although the neck pain eventually improved, the right shoulder continually worsened.
31. After conservative treatment and an MM of his right shoulder, Mariano was referred to Dr. Ralph Gessner, an orthopedic surgeon.
32. Mariano first saw Dr. Gessner on September 7, 1999. Dr. Gessner read the MRI and determined that Mariano had pre-existing arthritic changes around the humeral head which were asymptomatic prior to the accident. Dr. Gessner also opined that the MRI showed tendinitis, bursitis, and hypertrophy of the acromioclavicular joint which was compatible with impingement syndrome. He also noted a partial tear of the rotator cuff. Testimony of Dr. Ralph Gessner.
33. Mariano underwent surgery in November 1999 where an acromioplasty, an exploration of the rotator cuff, was performed. The supraspinatus tendon and rotator cuff were intact. Bursitis was noted as well as the impingement which was released by shaving the acromion and reattaching the muscles. Testimony of Dr. Ralph Gessner.
34. Both Dr. Howard and Dr. Gessner testified that Mariano's injuries were caused as a result of his unsuccessful attempt to pull slack in the MISS LESLIE'S mooring line.
35. The Court finds that the negligence of the defendants in allowing the HYDE PARK to lose control and ultimately cause allisions between the ship, barges and the Port Ship Service facility was a cause in fact and a proximate cause of Mariano's injuries.
36. Dr. Gessner testified that Mariano's surgery was successful.
37. The Court adopts the disability ratings of Dr. Ralph Katz who rated Mariano's disability as a 6.25% upper extremity impairment and a 3.75% impairment of the whole person. Dr. Katz based his ratings on the American Medical Association's Guides to Evaluation of Permanent Impairment, Fifth Edition. Testimony of Dr. Ralph Katz. Dr. Gessner conceded that the use of the AMA guide is an appropriate and recognized method for assigning a disability rating. Testimony of Dr. Ralph Gessner.
38. The Court finds that Mariano is entitled to $25, 000.00 in general damages as a result of the injury to his shoulder.
39. Mariano has incurred $17,442.09 in stipulated medical expenses and $3,978.00 in stipulated past lost wages.
40. Dr. Bernard Pettingill testified at trial as to Mariano's loss of earning capacity. The Court concludes that Dr. Pettingill may only testify as to demonstrated loss of earning capacity based upon Mariano's work history, which is the best evidence of future loss of earnings capacity.
41. The only tangible evidence before the Court concerning Mariano's work and earnings history are his Social Security Administration ("SSA") Itemized Statement of Earnings, the payroll records of Port Ship Service, and the testimony of his employer regarding his past overtime history his promotion to the higher paying job of dispatcher, together with his present opportunity to earn overtime. See Defendants' Exhibits 6, 11, 14, 32, and 37.
42. The evidence demonstrates that, in October 2000, Port Ship promoted Mariano to the position of dispatcher. Further, Mariano's payroll records and SSA Itemized Statement of Earnings conclusively establish that he is making significantly more money as a dispatcher than he ever made in the past as a launch operator. Defendants' Exhibit 32. Therefore, the Court finds that Mariano has no claim for future loss of earnings or loss of earning capacity, especially since his employer testified that Mariano still has an opportunity to earn overtime, either by operating a launch or as a dispatcher.
43. On February 26, 1999, Port Ship Services was understaffed. Although the evening shift normally had two deckhands (one for each launch boat), neither of the two deckhands showed up for work that evening making it necessary for the dispatcher to ask Port Ship's Poydras facility to send a deckhand up to assist. That deckhand was Mr. Arabie. Testimony of Hoffman and Arabic.
44. Mariano admitted at trial that. had one of the two deckhands that were scheduled to report to work at Port Ship Service assisted him in moving his boat, he would not have cast the mooring line by himself, and therefore he wold not have injured his shoulder. Testimony of Mariano.
45. The Court finds that Mariano's shoulder injury was a direct result and was proximately caused by the negligence of Port Ship Service in being under staffed on the night in question. The Court finds that the negligence of Port Ship Service contributed 50% to the injury sustained by Mariano.
CONCLUSIONS OF LAW
1. This matter was originally filed in the 34th Judicial Court for the State of Louisiana, in the Parish of St. Bernard, and was timely removed to this Court, which has original subject matter jurisdiction under the provisions of 28 U.S.C. § 1332, permitting removal of this action under 28 U.S.C. § 1441. This matter also falls within the Court's admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333, and venue is proper.
2. The Court finds, by a preponderance of the evidence, that the injuries sustained by Dafydd Hoffman were proximately and legally caused by the negligence of the defendants.
3. Hoffman sustained $2,592.00 in stipulated past lost wages.
4. Hoffman has not sustained any future lost wages.
5. Hoffman incurred past medical expenses in the amount of $21,038.00.
6. The right of subrogation is an exception to the rule even if the party subrogated does not appear to assert its subrogation rights and the defendants do not timely object to the non-joinder of the necessary party. Kidder v. Boudreaux, 636 So.2d 282, 284 (La.App. 3d Cir. 1994); Gullory v. Terra International, Inc., 613 So.2d 1084, 1093 (La.App. Ed Cir. 1993).
7. At all material times, plaintiffs' employers, Port Ship Service, Inc., had an Employee Benefit Plan (the "Plan") managed by Gilsbar, Inc. The plaintiffs were covered under the Plan at all relevant times.
8. Under the terms of the Plan, Gilsbar paid a majority of Hoffman's medical expenses. The only medical expenses pertaining to Hoffman's treatment that remain unpaid are:
Dr. Charles Murphy $2195.00 Jefferson Medical Services $ 603.00 Metro Physical Therapy $ 165.00 Kenner Regional Medical Center $ 48.24 TOTAL $3011.24
9. Gilsbar has a right of subrogation to recover payments made by it under the coverage of the Plan. Gilsbar is the proper party plaintiff in an action to assert its subrogation rights, and plaintiffs cannot recover damages for medical expenses for which Gilsbar has already compensated them. Boudreaux v. Farmer, 604 So.2d 641 (La.App. 1st Cir. 1992); Murray v. Sapp, 573 So.2d 495 (La.App. 1st Cir. 1990).
10. Hoffman can only recover from the defendants the amount of medical expenses that are unpaid at this date.
11. Hoffman is awarded $35,000.00 in general damages which includes past and future pain and suffering, past and future mental anguish, and past and future loss of enjoyment of life.
12. The Court finds, by preponderance of the evidence, that the injuries sustained by Andrew Mariano were proximately and legally caused by the negligence of both the defendants and of his employer, Port Ship Service.
13. Mariano sustained past lost wages in the amount of $3,978.00.
14. Mariano has not sustained any future lost wages or future loss of earning capacity.
15. Mariano incurred past medical expenses in the amount of $17,442.09.
16. The right of subrogation is an exception to the rule even if the party subrogated does not appear to assert its subrogation rights and the defendants do not timely object to the non-joinder of the necessary party. Kidder v. Boudreaux, 636 So.2d 282, 284 (La.App. 3d Cir. 1994), Guillory v. Terra International, Inc., 613 So.2d 1084, 1093 (La.App. Ed Cir. 1993).
17. At all material times, plaintiffs' employers, Port Ship Service, Inc., had an Employee Benefit Plan (the "Plan") managed by Gilsbar, Inc. The plaintiffs were covered under the Plan at all relevant times.
18. Under the terms of the Plan, Gilsbar paid a majority of Mariano's medical expenses. The only medical expenses pertaining to Hoffman's treatment that remain unpaid are:
Chalmette Medical Center $1499.99 The Health Care Center $1211.00 Dr Ralph Gessner $ 362.69 Motion Dynamics $3788.00 TOTAL $6861.68
19. Gilsbar has a right of subrogation to recover payments made by it under the coverage of the Plan. Gilsbar is the proper party plaintiff in an action to assert its subrogation rights, and plaintiffs cannot recover damages for medical expenses for which Gilsbar has already compensated them. Boudreaux v. Farmer, 604 So.2d 641 (La.App. 1st Cir. 1992); Murray v. Sapp, 573 So.2d 495 (La.App. 1st Cir. 1990).
20. Mariano can only recover from the defendants the amount of medical expenses that are unpaid at this date
21. Mariano is awarded $25,000.00 in general damages which includes past and future pain and suffering, past and future mental anguish, and past and future loss of enjoyment of life.
22. The Court finds, by preponderance of the evidence, that the negligence of Mariano's employer, Port Ship Service, contributed 50% to the injuries sustained by Mariano, and therefore has recovery will be reduced accordingly.