Opinion
NUMBER 2012 CA 1581
07-17-2013
DONALD FREEMAN v. INTERMOOR, INC. AND/OR ACTEON US HOLDING, LTD.
Louis R. Koerner, Jr. Houma, LA and R. Brent Cueria New Orleans, LA Counsel for Plaintiff/Appellant Donald Freeman Michael L. McAlpine Alina Pagani New Orleans, LA Counsel for Defendant/Appellee Intermoor, Inc.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
Sixteenth Judicial District Court
In and for the Parish of St. Mary
State of Louisiana
Docket No. 123, 743
Honorable Gerard B. Wattigny, Judge
Louis R. Koerner, Jr.
Houma, LA
and
R. Brent Cueria
New Orleans, LA
Counsel for
Plaintiff/Appellant
Donald Freeman
Michael L. McAlpine
Alina Pagani
New Orleans, LA
Counsel for
Defendant/Appellee
Intermoor, Inc.
BEFORE: GUIDRY, GRAIN, AND THERIOT, JJ.
GUIDRY , J.
In this tort action, plaintiff appeals a summary judgment dismissing his claim for damages arising under the Jones Act based on the trial court's determination that the plaintiff did not qualify as a seaman. For the following reasons, we affirm.
In August 2009, Intermoor, Inc. hired Don Freeman as a "yard rigger," an onshore position paying $13.00 per hour. According to Mr. Freeman, at the time he was hired, there were no offshore positions available, so he accepted the onshore position with hopes of eventually transferring to an offshore position. Mr. Freeman's onshore duties as a yard rigger consisted mainly of making sure equipment that would be placed on vessels was in good working order.
Although in the plaintiff's petition, his first name is erroneously stated as "Donald," in his deposition, he stated that his first name is simply "Don."
After he was hired, Mr. Freeman was asked if he might be interested in working offshore, and when he said yes, he was sent to an anchor handling class and received a certificate for completing the course. Thereafter, on December 3-5, 2009, Mr. Freeman worked offshore for Intermoor performing anchor handling duties. After completing the offshore assignment, Mr. Freeman returned to work onshore performing his regular duties, but he was told that if "something comes up for the offshore again," he would be asked if he wanted to go back, and Mr. Freeman replied that he would "be ready." The next opportunity came on December 19, 2009. On that date, Mr. Freeman was again performing anchor handling duties, when his back started hurting and eventually the pain became so severe that he reported the incident to his supervisor.
On September 7, 2011, Mr. Freeman filed a petition against Intermoor seeking damages under the Jones Act, 46 U.S.C. § 30104, for the back injury he sustained on December 19, 2009. Intermoor answered Mr. Freeman's petition and specifically denied Mr. Freeman's allegation that he was a seaman. Intermoor later filed a motion for summary judgment asserting that Mr. Freeman did not qualify as a seaman, and as such, Mr. Freeman had no cause of action under the Jones Act or general maritime law. Following a hearing, the trial court granted Intermoor's motion for summary judgment and dismissed with prejudice Mr. Freeman's Jones Act and general maritime claims against Intermoor. By this appeal, Mr. Freeman is seeking review of that judgment.
Except as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose. 46 U.S.C. § 30106.
STANDARD OF REVIEW
A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). On a motion for summary judgment, the burden of proof is on the mover. If the moving party will not bear the burden of proof at trial on the matter, that party's burden on a motion for summary judgment is to point out an absence of factual support for one or more essential elements of the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 02-0854, p. 4 (La. App. 1st Cir. 3/28/03), 844 So. 2d 339, 341. An appellate court's review of a summary judgment is de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. R.G. Claitor's Realty v. Rigell, 06-1629, p. 4 (La. App. 1st Cir. 5/4/07), 961 So. 2d 469, 471-72, writ denied, 07-1214 (La. 9/21/07), 964 So. 2d 340.
DISCUSSION
The Jones Act allows an injured seaman to bring a negligence action against his employer. 46 U.S.C. § 30104. Seaman are given heightened legal protections not accorded to other maritime workers because of their exposure to the "perils of the sea." Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 115 S.Ct 2172, 2183, 132 L.Ed.2d 314 (1995). "[T]raditional seamen's remedies ... have been 'universally recognized as ... growing out of the status of the seaman and his peculiar relationship to the vessel, and as a feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to sea in ships are subjected.'" Chandris. Inc., 515 U.S. at 355, 115 S.Ct. at 2183 (quoting McDermott International. Inc. v. Wilander, 498 U.S. 337, 354, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991)).
Thus, in order to qualify as a seaman, the United States Supreme Court established the following two-part test for determining seaman status: (1) the employee's duties must contribute to the function of the vessel or to the accomplishment of its mission; and (2) the employee 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. Chandris. Inc., 515 U.S. at 368, 115 S.Ct. at 2190. As explained by the Court, the purpose of the second requirement "is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea." Chandris. Inc., 515 U.S. at 368, 115 S.Ct. at 2190.
In Chandris, Inc., the Court observed that, as a general rule of thumb, the U.S. Fifth Circuit Court of Appeals had identified 30 percent as the minimum amount of time a worker would need to spend in service to a vessel in navigation to qualify as a seaman under the Jones Act; however, it further observed that 30 percent serves merely as a guideline from which departure will be justified in appropriate cases. Chandra. Inc., 515 U.S. at 371, 115 S.Ct at 2191. One such case that the Court identified is when a worker's basic job assignment changes. In discussing this circumstance, the Court related the following as justification for deviating from the rule of thumb:
For example, we can imagine situations in which someone who had worked for years in an employer's shoreside headquarters is then reassigned to a ship in a classic seaman's job that involves a regular and continuous, rather than intermittent, commitment of the worker's labor to the function of a vessel. Such a person should not be denied seaman status if injured shortly after the reassignment, just as someone actually transferred to a desk job in the company's office and injured in the hallway should not be entitled to claim seaman status on the basis of prior service at sea. If a maritime employee receives a new work assignment in which his essential duties are changed, he is entitled to have the assessment of thé substantiality of his vessel-related work made on the basis of his activities in his new position.Chandris, Inc., 515 U.S. at 372, 115 S.Ct. at 2191-92. This example has been referred to as the "reassignment exception." See Reeves v. F. Miller & Sons, Inc., 07-201, p. 9 (La. App. 3d Cir. 10/3/07), 967 So. 2d 1178, 1184, writ denied, 07-2435 (La. 2/15/08), 976 So. 2d 181. Interpreting the application of this exception, the U.S. Fifth Circuit has held that "a change in coverage under the Jones Act occurs only when the status of the worker changes, not simply because the worker happens to serve on a vessel before returning to work on land....merely serving an assignment on a vessel in navigation does not alter a worker's status." Becker v. Tidewater, Inc., 335 F.3d376, 389-90 (5th Cir. 2003).
On appeal, Mr. Freeman asserts that genuine issues of material fact exist as to whether he was "reassigned" to offshore duties such that he would qualify as a seaman. We find no such dispute exists in the evidence presented.
In response to the statement of uncontested material facts presented by Intermoor in support of its motion for summary judgment, Mr. Freeman made the following admissions:
It is admitted after at least the first two assignments offshore, [Mr. Freeman] would return to the yard [i.e., onshore] as a rigger, but it is denied that this job was permanent as Freeman wanted to be an anchor handler and intended to ask for a transfer after successfully completing his second hitch offshore.
...
.... Freeman returned to the yard after completion of the jobs for Apache and Chevron on December 3, 4, and 5th. He was injured on the first day, December 19, 2009, of the second offshore job. Had he not been hurt, he would have applied to Joe Hebert to be transferred.
...
.... No transfer paperwork is filled out for employees who occasionally go offshore.
Admitted. However, Freeman was about to graduate to employees who are assigned to the offshore division.
.... No one at Intermoor promised Donald Freeman a position in the Offshore division.
Admitted.....They propose opportunities, which is what was done with Freeman. [Emphasis added.]
Additionally, in his deposition, Mr. Freeman testified that when he was hired, he believed Eric Boudreaux had said "maybe you've got opportunities, you can go work offshore when the yard is short. I'm going to say he said they had opportunities, that there." When questioned whether anyone had told him that after his first trip offshore he would be transferred to the offshore division, Mr. Freeman responded, "[w]hat they said is, if something comes up for the offshore again, we'll ask you if you want to go back again, and I told them I'd be ready." And while Mr. Freeman did testify that he thought he was going to be permanently moved to the offshore division, the following testimony reveals that he was aware that he had not yet been transferred, but it clearly was his goal and intent to be transferred:
Q And my question was, even if you went offshore every time the opportunity presented itself, you did understand, however, that you would be coming back to your yard position after every opportunity to go offshore. Is that correct?And again, when questioned regarding whether he had been promised or guaranteed an offshore position, Mr. Freeman stated M[t]hey never promised me. They said it was an opportunity." As he later explained, "after that hitch, after I was going to come off that hitch [i.e., the December 19, 2009 offshore assignment], I was going to talk to someone to go offshore permanently, because that was my goal." (Emphasis added.) Likewise, in his deposition, Mr. Freeman's supervisor, Eric Boudreaux, acknowledged that Mr. Freeman could have eventually been transferred to the offshore division had he not been injured.
A I understand that I'd be going back to the yard, but every time the opportunity came, my goal was to become an offshore hand. That's my goal. That was my goal. That was my whole intention to become an offshore hand. That was my goal.
Thus, the evidence clearly and undisputedly shows that while Mr. Freeman had every intention and likely would have been able to transfer, and thereby have his job status changed or reassigned to the offshore division, at the time of his injury and prior thereto, no such reassignment had occurred. Rather, Mr. Freeman, at the time he was injured, was merely an onshore or land-based employee who was working a specific offshore job assignment for which he had volunteered. He was not transferred from the onshore division to the offshore division, and his pay rate did not change. As such, based on our de novo review of the record before us, we find no error in the trial court's conclusion that Mr. Freeman failed to produce factual support sufficient to establish that he would be able to satisfy his evidentiary burden of proving that he was a seaman. Thus, there is no genuine issue of material fact and summary judgment was properly granted in favor of Intermoor.
Connie Dragna, a payroll clerk for Intermoor, testified by deposition and affidavit that offshore employees were paid less than onshore employees. She testified that onshore employees usually receive a starting pay of $12.00 to $13.00 per hour; whereas offshore workers typically have a starting pay of $7.50 to $8.50 per hour.
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Therefore, for the foregoing reasons, we affirm the summary judgment in favor of Intermoor, Inc. All the costs of this appeal are cast to the appellant Don Freeman.
AFFIRMED.