Thomas Lovejoy v. Hardie Bergeaux and Crain Brothers, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-862

THOMAS LOVEJOY

VERSUS

HARDIE BERGEAUX AND CRAIN BROTHERS, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-3295
HONORABLE PATRICIA MINALDI, DISTRICT COURT JUDGE

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ULYSSES GENE THIBODEAUX
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Oswald A. Decuir, and Jimmie C.
Peters, Judges.

REVERSED AND REMANDED
FOR TRIAL ON THE MERITS.

Glenn W. Alexander
Jones & Alexander
122 Smith Circle
Post Office Drawer 250
Cameron, LA 70631
Telephone: (337) 775-8121
COUNSEL FOR:
Plaintiff/Appellant - Thomas Lovejoy

Hal James Broussard
Ped C. Kay III
J. Daniel Rayburn, Jr.
Broussard & Kay
P. O. Drawer 3308
Lafayette, LA 70502
Telephone: (337) 232-1666
COUNSEL FOR:
Defendants/Appellees - Crain Brothers, Inc. and Hardie Bergeaux
Thomas E. Townsley

711 Pujo Street
Lake Charles, LA 70601
Telephone: (337) 430-0994
COUNSEL FOR:
Plaintiff/Appellant - Thomas Lovejoy

THIBODEAUX, Judge.

In this maritime case, the defendant-appellee, Crain Brothers, Inc. (Crain

Brothers), filed a motion for summary judgment and asserted that the plaintiff-

appellant, Thomas Lovejoy (Mr. Lovejoy), was not a seaman and should be precluded

from bringing a claim under the Jones Act. The trial court granted the defendant’s

motion for summary judgment after concluding that there were no genuine issues of

material fact as to the plaintiff’s status as a seaman. We disagree. We reverse and

remand to the trial court for a trial on the merits.

I.

ISSUES

We shall address:

1) whether post-accident employment activities are
relevant in determining seaman status; and,

2) whether the trial court erred in granting a summary
judgment to the employer defendant and in
dismissing plaintiff’s claims under the Jones Act.

II.

FACTS

In March 2000, Crain Brothers started its Sunland project, which

involved placing pipeline crossings under the intracoastal waterway, the Sabine River,

and the Vinton Canal. In June 2000, Crain Brothers hired Mr. Lovejoy to perform

welding services on this project. Mr. Lovejoy was required to pass a welding exam

in June but did not start work on the project until July 5, 2000. Mr. Lovejoy worked

with Crain Brothers on a previous project in 1995 as a welder on an offshore platform.

The Sunland project involved use of many types of boats including tugs,

marshbuggies, and aluminum flatboats. The M/V MISS HILDA transported the

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workers, welding machines, sandblasting equipment, welding leads, and all other

equipment needed to complete the project down the intracoastal waterway to the

crossing site on a daily basis. The duration of the trip was anywhere between 30-45

minutes. Once at the site, the workers would pull the vessel up close to the bank and

a marshbuggy machine, equipped with pontoons, would be used to offload the

equipment onto another pontoon barge.

The waterway crossing construction consisted of welding the pipe

together, one joint at a time. After welding, the workers moved the pipes along an

assembly line where they were x-rayed, sandblasted, doped and jeeped. As each joint

was completed, the string of welded pipe was pulled out into the marsh by a

marshbuggy, far enough for another joint of pipe to be welded into the line. The final

step was to weld a cap on it, pressure test it, and then install a pull cap on the end

nearest the canal so that the line could be pulled through a hole that was bored

underneath the waterway.

On July 8, 2000, Mr. Lovejoy was injured when a co-employee dropped

a bucket on his head. The injury occurred on a levee, when the pipelines were being

welded together. Though injured, he was released from the hospital and went back

to his job a few days later. He continued to work on the project performing various

tasks such as driving boats, transporting equipment, and fabrication welding until July

29, 2000. During his entire employment on this project, Mr. Lovejoy worked on the

M/V MISS HILDA, the tugs, barges, marshbuggies and aluminum flatboats. He

estimated that he piloted the M/V MISS HILDA to the job site about seven times

during his work on the project and stayed on it all day long on some days.

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Mr. Lovejoy filed suit against Crain Brothers and his co-worker, Hardie

Bergeaux1 under various theories including Jones Act, maintenance and cure, and

unseaworthiness. He later amended his lawsuit to assert a claim against Zurich

American Insurance Company. Crain Brothers filed a motion for summary judgment

on the issue of seaman status. The trial court granted Crain Brothers’ motion for

summary judgment ruling that there were no genuine issues of material fact.

Thereafter, this appeal was filed.

III.

LAW AND DISCUSSION

Standard of Review

“Appellate courts review summary judgments de novo under the same

criteria that govern the district court’s consideration of whether summary judgment

is appropriate.” Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La. 4/11/94), 634

So.2d 1180, 1183; Leger v. La. Med. Mut. Ins. Co., 98-1098, p. 4 (La.App. 3 Cir.

3/31/99), 732 So.2d 654, 657, writ denied, 99-1253 (La. 6/18/99), 745 So.2d 30.

Stated differently, this court “asks the same questions as does the trial court in

determining whether summary judgment is appropriate: whether there is any genuine

issue of material fact, and whether the mover-appellant is entitled to judgment as a

matter of law.” Labbe v. Chem. Waste Mgmt., Inc., 00-1772, p. 4-5 (La.App. 3 Cir.

5/2/01), 786 So.2d 868, 872, writ denied, 01-1602 (La. 9/14/01), 796 So.2d 685

(quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La. 7/5/94), 639

So.2d 730, 750).

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Hardie Bergeaux filed an exception of no cause and/or no right of action and the exception
was granted. No appeal was taken by Mr. Lovejoy.

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Because this is a summary judgment case to which La.Code Civ.P. art.

966 et seq. is applicable, it is necessary to first determine who will bear the burden of

proof at trial. Subpart (C)(2) of La.Code Civ.P. art. 966 explains:

The burden of proof remains with the movant. However, if
the movant will not bear the burden of proof at trial on the
matter that is before the court on the motion for summary
judgment, the movant’s burden on the motion does not
require him to negate all essential elements of the adverse
party’s claim, action, or defense, but rather to point out to
the court that there is an absence of factual support for one
or more elements essential to 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 of proof at trial,
there is no genuine issue of material fact.

The Jones Act, 46 U.S.C.App. § 688(a), mandates that “[a]ny seaman

who shall suffer personal injury in the course of his employment may, at his election,

maintain an action for damages at law . . . .” While the Act affords an injured seaman

the right to maintain an action, it is silent as to the definition of “seaman.” The Act

“therefore leaves to the courts the determination of exactly which maritime workers

are entitled to admiralty’s special protection.” Chandris, Inc. v. Latsis, 515 U.S. 347,

355, 115 S.Ct. 2172, 2183 (1995).

In keeping with the jurisprudential development of admiralty law, Mr.

Lovejoy has the burden of proving the elements of a twofold, conjunctive test for

seaman status. “First, . . . ‘an employee’s duties must “contribute to the function of

the vessel or to the accomplishment of its mission.”’ . . . Second, . . . a seaman 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, 515

U.S. at 368, 115 S.Ct. at 2190 (citation omitted); Roberts v. Cardinal Services., 266

F.3d 368, 374 (5th Cir. 2001), cert. denied, 535 U.S. 954, 122 S.Ct. 1357 (2002).

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Because Crain Brothers is the movant and it is not to bear the burden of

proof at trial on seaman status under the Jones Act, it is not required to negate all

essential elements of Mr. Lovejoy’s claims. The company must show an absence of

factual support for one or more elements essential to Mr. Lovejoy’s claims. If Crain

Brothers is able to do this, then the burden of production shifts to Mr. Lovejoy to

produce factual support sufficient to establish that he will be able to satisfy his

evidentiary burden of proof at trial. If Mr. Lovejoy successfully produces such

support, then there is a genuine issue of material fact.

In a Jones Act case, the determination of seaman status is a mixed

question of law and fact. Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 117

S.Ct. 1535 (1997). If reasonable persons could reach only one conclusion as to a

particular factual issue, then such issue is not genuine and may be disposed of

summarily. However, if reasonable persons could disagree as to a factual issue’s

resolution, then such an issue is genuine, and trial on the merits is warranted. Sumner

v. Sumner, 95-677 (La.App. 3 Cir. 11/8/95), 664 So.2d 718, writ denied, 95-2919 (La.

2/9/96), 667 So.2d 531.

Mr. Lovejoy’s Seaman Status Under the Jones Act

As noted above, the test for seaman status is twofold and conjunctive.

“First, . . . ‘an employee’s duties must “contribute to the function of the vessel or to

the accomplishment of its mission.”’ . . . Second, . . . a seaman 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, 515 U.S. at 368,

115 S.Ct. at 2190 (citation omitted). See also Harbor Tug, 520 U.S. at 554, 117 S.Ct.

at 1540; Roberts, 266 F.3d at 374. Each prong must be considered in turn.

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The first prong of this fact-intensive test is a broad threshold inquiry.

Typically, it is easily satisfied, and a maritime employee who does the ship’s work

falls within the purview of the Jones Act. Indeed, “[a]ll who work at sea in the service

of a ship” are potential seamen. Chandris, 515 U.S. at 368, 115 S.Ct. at 2190 (quoting

McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 354, 111 S.Ct. 807, 817 (1991)). See

also Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 347 (5th Cir. 1999). It is

neither necessary for the maritime worker to aid in navigation nor to participate in

actual transportation of the vessel in order to satisfy the first prong. Little v. Amoco

Prod. Co., 98-1130 (La.App. 1 Cir. 5/14/99), 734 So.2d 933, writ denied, 99-1752

(La. 10/1/99), 748 So.2d 446; Wilander, 498 U.S. 337, 111 S.Ct. 807. Mr. Lovejoy

was employed by Crain Brothers as a welder. His duties included loading equipment

for the project onto the vessel. In addition, he piloted the vessel after his injury.

Thus, given the broad interpretation of the first prong of the Chandris test, it is likely

that a jury could find Mr. Lovejoy contributed to the function of the vessel or to the

accomplishment of its mission, which was to transport the workers and equipment to

the welding site.

The second or “substantial connection” prong of the test is often the

determinative one. It consists of both temporal and functional elements, which is to

say that the focus is on the substantiality of the connection to a vessel or identifiable

group of vessels. The connection must be substantial in terms of both duration and

nature. The Supreme Court in Chandris stated that “[a] maritime worker who spends

only a small fraction of his working time on board a vessel is fundamentally land-

based and therefore not a member of the vessel’s crew, regardless of what his duties

are.” Chandris, 515 U.S. at 371, 115 S.Ct. at 2191. The Court went on to state:

A worker who spends less than about 30 percent of his time
in the service of a vessel in navigation should not qualify as
a seaman under the Jones Act. This figure of course serves

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as no more than a guideline established by years of
experience, and departure from it will certainly be justified
in appropriate cases. . . . And where undisputed facts
reveal that a maritime worker has a clearly inadequate
temporal connection to vessels in navigation, the court may
take the question from the jury by granting summary
judgment or a directed verdict.

Chandris, 515 U.S. at 371, 115 S.Ct. at 2191.

There are genuine issues of material fact regarding whether the

“substantial connection” prong of the Chandris test is satisfied. Before his injury, Mr.

Lovejoy rode the vessel to work on a daily basis; however, most of his welding duties

were performed on a levee. After his accident, Mr. Lovejoy spent a substantial part

of his time on the M/V MISS HILDA and other boats and performed additional tasks

such as piloting the M/V MISS HILDA.

The first criterion involves a consideration of the time spent by Mr.

Lovejoy on a vessel in navigation. Crain Brothers argues that Mr. Lovejoy only rode

a vessel on water on the way to the actual job site and spent less than 30% of his time

on water. Crain Brothers estimates that he spent 37 hours on a vessel, out of 245

hours worked. On the other hand, Mr. Lovejoy estimates that he spent at least 43%

of his time on a vessel. His figure shows that he spent 82.7 hours of approximately

192 hours worked on a vessel.

Another issue is whether the area in which Mr. Lovejoy performed his

work was a navigable body of water. Crain Brothers argues that the marsh where Mr.

Lovejoy worked was not a navigable body of water. Mr. Lovejoy counters that the

project involved marsh machines and that the welding machines and equipment were

on barges which were pushed by tugboats, thus making the area a navigable body of

water.

In its opinion, the trial court stated:

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The plaintiff contends that this Court should examine the
duties to which he was assigned after his injury and that the
Court should not rely on a “snapshot” of what job the
plaintiff was performing at the exact time of his injury. All
existing cases acknowledge that activities up to and
including the time of injury should be included in the
examination. The plaintiff’s attempt to stretch this
rationale to include his activities after his injury requires a
leap of logic which would subvert the purpose of the Jones
Act. This would allow someone who had no connection
with Jones Act activities who was injured on the job to
retroactively claim Jones Act status if he were assigned to
a seaman’s duties after his injury. Such an analysis would
lead to absurd results unintended by the Jones Act and
general maritime law.

Mr. Lovejoy suggests, and we agree, that the trial judge neglected to

consider the claimant’s time after his injury in determining seaman status.

“[S]eaman-status is determined by the employee’s entire employment-related

connection to a vessel, [or fleet of vessels] and not by the immediate circumstances

or location of the plaintiff’s injury.” Hufnagel, 182 F.3d at 346. (Emphasis

supplied). See also Chandris, 515 U.S. at 363, 115 S.Ct. at 2187. The Chandris court

stated that “courts should not employ ‘a “snapshot” test for seaman status, inspecting

only the situation as it exists at the instant of injury; a more enduring relationship is

contemplated in the jurisprudence.’” Chandris, 515 U.S. at 363, 115 S.Ct. at 2187.

Although the court in Chandris did not specifically state that post- accident activities

can be included in determinating seaman status, we can infer this from the facts of the

case. In Chandris, the employee was injured and returned to work on the vessel. The

court considered the time the employee spent on the ship after the accident, while the

vessel was in drydock, in determining that the employee was a seaman.

Chandris also addresses the issue of retroactive determination of seaman

status by providing an exception to the general rule that an employee’s entire

employment should be considered in determining seaman status. Chandris provides:

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When a maritime worker’s basic assignment changes, his
seaman status may change as well . . . 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 the
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 the substantiality of his vessel-related
work made on the basis of his activities in his new position
. . . While our approach maintains the status-based inquiry
this Court’s earlier cases contemplate, we recognize that
seaman status also should not be some immutable
characteristic that maritime workers who spend only a
portion of their time at sea can never attain.

Chandris, 515 U.S. at 372, 115 S.Ct. at 2190.

Based on the totality of the circumstances of Mr. Lovejoy’s employment,

including his time spent on the vessel after his injury, we do not find this to be a case

where “undisputed facts reveal that a maritime worker has a clearly inadequate

temporal connection to vessels in navigation, [where] the court may take the question

from the jury by granting summary judgment or a directed verdict.” Chandris, 515

U.S. at 371, 115 S.Ct. at 2191. When the facts are analyzed against the backdrop of

the jurisprudence, we believe that a reasonable jury could conclude that Mr. Lovejoy

spent more than 30 percent of his employment time aboard vessels owned or

controlled by Crain Brothers. Consequently, seaman status remains a genuine issue

of material fact in this case.

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IV.

CONCLUSION

For the reasons assigned, the trial court judgment appealed from is

reversed and set aside insofar as it grants summary judgment declaring no genuine

issue of material fact as to Mr. Lovejoy’s seaman status as contemplated by the Jones

Act and the jurisprudence interpreting said Act.

REVERSED AND REMANDED FOR TRIAL ON THE MERITS.

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