Ovie Reeves, Jr. v. F. Miller & Sons, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-201 c/w 07-339

OVIE REEVES, JR.

VERSUS

F. MILLER & SONS, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 04-1900
HONORABLE G. MICHAEL CANADY, DISTRICT JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir and Billy H. Ezell, Judges.

AFFIRMED.

Raleigh Newman
Donald W. McKnight
1830 Hodges Street
Lake Charles, LA 70601
(337) 439-5788
COUNSEL FOR PLAINTIFF/APPELLANT
Ovie Reeves, Jr.

David K. Johnson
Johnson, Stiltner & Rahman
2237 South Acadian Thruway
P.O. Box 98001
Baton Rouge, LA 70898-8001
(225) 231-0755
COUNSEL FOR INTERVENOR/APPELLANT:
Louisiana Workers’ Compensation Corporation

Bettye A. Barrios
Ronald A. Johnson
Johnson, Johnson, Barrios & Yacoubian
701 Poydras Street, Suite 4700
New Orleans, LA 70139
(504) 528-3001
COUNSEL FOR DEFENDANT/APPELLEE:
F. Miller & Sons, Inc.

COOKS, Judge.

The Plaintiff appeals a jury verdict finding he had not proven by a

preponderance of the evidence that he was a Jones Act seaman. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Orie Reeves, Jr., began his employment with Defendant, F. Miller and

Sons, Inc., in 1992. Defendant is a company involved in general construction,

including construction of buildings, bridges, wharfs, etc. Plaintiff worked as a pile

driver/operator who performed various construction duties. On March 19, 2003,

Plaintiff alleged he injured himself while engaged in the course and scope of his

employment when he slipped on the deck of a pile driving barge located at the Port

of Lake Charles. Claiming status as a Jones Act seaman, Reeves sued his employer

for damages allegedly sustained as a result of the accident.

The matter was tried by jury from May 15, 2006 through May 24, 2006. At

trial, the payroll records for the years 1995 through 2003 were introduced. F. Miller

and Sons contended, through the testimony of its operations superintendent, Jim

Benoit, that Reeves worked less than sixteen percent (16%) of his work time aboard

a barge. Defendant also asserted, at most, twenty-eight percent (28%) of Reeves’

work time occurred with a barge on site. Plaintiff presented the testimony of Robert

Kubelka, who was accepted by the trial court as an expert “in the field of operations

of special purpose vehicles.” Mr. Kubelka acknowledged he did not prepare any

calculations or charts, nor did he review all of the time sheets. He simply responded

to counsel for plaintiff’s questions about selected jobs which were in furtherance of

the mission of the vessel.

The jury returned a verdict holding that Plaintiff had not proven by a

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preponderance of the evidence that he was a seaman under the Jones Act. Plaintiff

has appealed the verdict, contending the jury’s finding that he was not a Jones Act

seaman was clearly contrary to the law and evidence.

ANALYSIS

The Jones Act, 46 U.S.C. § 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 Jones Act affords an injured seaman the

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

leaves it to the courts to determine which maritime workers are entitled to admiralty’s

special protection.

The Louisiana Supreme Court in Richard v. Mike Hooks, Inc., 01-145 (La.

10/16/01), 799 So.2d 462, 465-67, addressed the issue of who qualifies as a seaman

under the Jones Act:

The United States Supreme Court in Chandris, Inc. v. Latsis, 515
U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995), set forth the
elements for seaman status as follows: (1) the employee’s duties must
contribute to the function of the vessel or to the accomplishment of its
mission; (2) 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. See Chandris, 515 U.S. at 368, 115
S.Ct. at 2190.

The Chandris court explained that the first element was intended
to exclude from Jones Act protection those individuals who do not
perform the ship’s work. The court recognized, however, that the
threshold requirement is very broad, stating that “all who work at sea in
the service of a ship” are eligible for seaman status. See id.

The second element, however, is a more narrow inquiry. The
Chandris court explained the element as follows:

The fundamental purpose of the substantial
connection 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 with a vessel in

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navigation, and therefore whose employment does not
regularly expose them to the perils of the sea. See 1B A.
Jenner, Benedict on Admiralty§ 11a, pp. 2-10.1 to 2-11
(7th ed. 1994) (“If it can be shown that the employee
performed a significant part of his work on board the vessel
on which he was injured, with at least some degree of
regularity and continuity, the test for seaman status will be
satisfied” (footnote omitted)).

Chandris, 515 U.S. at 368-69, 115 S.Ct. at 2190.

The Chandris court then provided guidance in ascertaining who
is a “member of the crew” and, therefore, a seaman. The court held:

“[T]he total circumstances of an individual’s employment
must be weighed to determine whether he had a sufficient
relation to the navigation of vessels and the perils attendant
thereon.” Wallace v. Oceaneering Int’l, 727 F.2d 427, 432
(CA5 1984). The duration of a worker’s connection to a
vessel and the nature of the worker’s activities, taken
together, determine whether a maritime employee is a
seaman because the ultimate inquiry is whether the worker
in question is a member of the vessel’s crew or simply a
land-based employee who happens to be working on the
vessel at a given time.

* * *

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. Naturally,
substantiality in this context is determined by reference to
the period covered by the Jones Act plaintiff’s maritime
employment, rather than by some absolute measure.

* * *

A worker who spends less then [sic] 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 as no more than a guideline established by
years of experience, and departure from it will certainly be
justified in appropriate cases. As we have said, “[t]he
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.

Chandris, 515 U.S. at 370-71, 115 S.Ct. at 2190-91.

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In 1997, the United States Supreme Court in Harbor Tug and
Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 137 L.Ed.2d 800
(1997), further clarified the rule by stating:

For the substantial connection requirement to serve its
purpose, the inquiry into the nature of the employee’s
connection to the vessel must concentrate on whether the
employee’s duties take him to sea. This will give
substance to the inquiry both as to the duration and nature
of the employee’s connection to the vessel and be helpful
in distinguishing land-based from sea-based employees.

Harbor Tug, 520 U.S. at 555, 117 S.Ct. at 1540.

We begin with the first element of the Chandris test, that an
employee’s duties must contribute to the function of the vessel or to the
accomplishment of its mission. The court of appeal held that this
element was met, and with this we agree. Richard did perform
maintenance and repair work on defendant’s vessels that contributed to
their function.

We recognize, however, as did the Chandris and Harbor Tug
courts, that the first element of the test is general and that the inquiry of
whether an individual is a seaman will often turn on the second element
of the Chandris test. That element requires the employee to show “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.”
See Chandris, 515 U.S. at 368, 115 S.Ct. at 2190.

Regarding the latter element, the court of appeal found that
Richard did have a connection to Hooks’s vessels that was substantial
in duration and nature because, in considering the totality of the
circumstances, Richard’s work was of a seagoing nature that exposed
him to the perils of the sea. The court noted that Richard spent over
thirty percent of his time aboard defendant’s vessels, that his work
contributed to the function of the vessels, and that he was exposed to the
perils of the sea in performing those duties. The court referred to the
testimony of a marine expert who stated that Richard faced the “perils
of the sea” such as “hazards of cargo operations, ship’s cranes/booms,
slippery decks, sinking vessel, fire hazards, etc.”

We agree that Richard had a connection to defendant’s vessels,
but disagree that the connection was substantial in duration and nature.
The fact that Richard spent in excess of thirty percent of his time
working on defendant’s vessels does not, in and of itself, make him a
seaman. Thirty percent is not a magic number automatically rendering
an individual’s connection with a vessel substantial in duration and
nature. Thirty percent is simply a guideline, a minimum below which
an individual generally does not qualify as a seaman. Furthermore, the
fact that Richard may have been exposed to some perils does not

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automatically qualify him as a seaman. “Seaman status is not
co-extensive with seamen’s risks.” Chandris, 515 U.S. at 361, 115 S.Ct.
at 2186.

Richard’s time spent aboard Hooks’s vessels and the perils he
faced must be considered along with other important facts to determine
whether his connection with defendant’s vessels are substantial in nature
and duration. In this particular instance, we consider an analysis of the
following: all of the vessels on which plaintiff worked were dockside;
he was never more than a gangplank’s distance from shore when
working on the vessels; some of the vessels were partially on land while
being repaired; he never slept on the vessels; he did not eat on the
vessels; he did not keep watch on vessels overnight; he was not a
member of Hooks’s dredge crew that performed welding on dredges in
operation; he never worked on a vessel while it was performing its
primary mission; he took his orders from a land-based foreman; he was
only aboard small moving vessels once every month, for short durations,
where he assisted in moving dredge pipe along a canal adjacent to
Hooks’s yard; and his repair duties did not take him to sea. While none
of these individual facts alone prohibit an employee from attaining
seaman status, a consideration of them together shows that Richard was
a land-based employee, not a seaman.

Richard has argued that the facts surrounding his employment
should not prevent him from attaining seaman status because similar
facts were present in four post-Chandris cases. Richard cites Manuel v.
P.A.W. Drilling & Well Service, Inc., 135 F.3d 344 (5th Cir.1998);
Burgess v. C.F. Bean Corp., 98-3072 (La.App. 4 Cir. 8/18/99), 743
So.2d 251; Gumpert v. Pittman Construction Co., Inc., 98-2269,
99-0709 (La.App. 4 Cir. 6/9/99), 736 So.2d 1026; and In re Endeavor
Marine Inc., 234 F.3d (5th Cir.2000).

While some of the facts in Manuel, Burgess, Gumpert, and In re
Endeavor Marine, Inc. may be similar to some facts in this case, the
totality of the circumstances are distinguishable. The determination of
seaman status is inherently fact intensive, and each case must be decided
under the facts presented therein. See Chandris, 515 U.S. at 371, 115
S.Ct. at 2191; Wilander, 498 U.S., at 356, 111 S.Ct., at 818. While the
courts which decided Manuel, Burgess, Gumpert, and In re Endeavor
Marine Inc. found the plaintiffs therein to be seamen, the facts
surrounding Richard’s employment, in our view, do not yield the same
result.

The totality of the circumstances surrounding Richard’s
employment does not provide him with a connection to defendant’s
vessels that is substantial in nature and duration. The facts indicate that
Richard is a land-based employee who happens to spend some of his
time working aboard defendant’s vessels. Jimmy Shay Richard is not a
Jones Act seaman.

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For the foregoing reasons, we reverse the finding by the trial court
and court of appeal that plaintiff is a seaman entitled to Jones Act
benefits, and dismiss this claim with prejudice.

Both Plaintiff and Defendant agree Chandris, Inc. v. Latsis, 515 U.S. 347, 115

S.Ct. 2172 (1995) sets forth the applicable law on this issue. Plaintiff has not alleged

any improper jury instructions or evidentiary rulings by the trial court. Its argument

on appeal attacks solely the jury’s conclusion that the evidence presented at trial did

not establish plaintiff was a seaman under the Jones Act.

In the chart prepared by Jim Benoit, he listed as “land” any time that Plaintiff

was not standing on the barge for his work. Listed as “water” was any time Plaintiff

was standing on the barge while performing his job duties. On this chart, Plaintiff

worked a grand total of 15,038 hours, of which 2,428 were for work on water. That

amounts to 16% of Plaintiff’s work performed on “water.” Another chart also

documented the number of hours Plaintiff worked while a barge was present at the

job site, regardless of whether Plaintiff was actually on the barge. Benoit concluded

a barge was on site twenty-eight percent (28%) of the hours Plaintiff worked. Benoit

testified he believed his calculations were “real accurate.” Defendant argues Benoit’s

calculations “were uncontradicted and provided the jury with more than a reasonable

basis for finding Plaintiff was not a Jones Act seaman.” The jury apparently agreed.

Plaintiff presented the testimony of Robert Kubelka, who was accepted by the

trial court as an expert “in the field of operations of special purpose vehicles.”

Although Plaintiff in brief argues Kubelka made it “clear that where the crew member

is physically standing while doing his work is totally immaterial,” a review of his

testimony reveals otherwise. Kubelka specifically testified at trial that he understood

his role at trial was to testify as to “where physically a person that occupies such a

position [pile driver] as the plaintiff did where he would be physically.” Despite what

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Kubelka believed his role to be at trial, counsel for Plaintiff took certain jobs, gave

a description of the job, and asked Kubelka whether it was in “furtherance of the

mission of the vessel.” Mr. Kubelka answered yes to each.

Counsel for Plaintiff apparently misunderstands the two-step test of Chandris.

Continually, Plaintiff focused on the first prong of the Chandris test, “that an

employee’s duties must contribute to the function of the vessel or to the

accomplishment of its mission.” As the courts have consistently noted, this element

is easily met, as it was in the present case. It is the second prong of the test – that the

employee have a connection to a vessel in navigation that is substantial in terms of

both duration and nature – that is at issue in this case, and the jury’s resolution of it

ultimately was fatal to Plaintiff’s attempt to establish his alleged Jones Act seaman

status.

As Defendant points out in brief, no charts or calculations of Plaintiff’s work

time was presented in opposition to the calculations presented by Defendant. No

witness presented by Plaintiff reviewed the time records to determine what amount

of time Plaintiff was actually working on a vessel in navigation, as is required by the

second prong of Chandris. Plaintiff has set forth a chart in its brief before this court

claiming he spent approximately thirty-eight percent of his hours working “as a crew

member of the pile driving vessel, contributing to the mission and function of that

vessel.” We note this chart was never presented to the jury, and as such is not

something they could have considered in their deliberations.

As the court in Hooks stated, the “time spent aboard [the] vessels and the perils

he faced must be considered along with other important facts to determine whether

his connection with defendant’s vessels are substantial in nature and duration.” Id.

799 So.2d at 465. The record establishes all the vessels on which plaintiff worked

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were dockside; he did not sleep on the vessels; he did not eat on the vessels; he did

not keep watch on the vessels overnight; and his pile driving duties did not take him

to sea. While none of these individual facts alone prohibit an employee from

attaining seaman status, a consideration of them together indicates the jury did not err

in finding Plaintiff was a land-based employee, not a seaman. See Hooks, supra.

In general maritime law and Jones Act cases, appellate courts are to apply the

manifest error standard of review, i.e., a factual finding of the jury cannot be set aside

unless we find it is manifestly erroneous or clearly wrong. Coutee v. Global Marine

Drilling Co., 05-756 (La. 2/22/06), 924 So.2d 112; Davis v. Ensco Offshore Co., 06-

197 (La.App. 3 Cir. 5/31/06), 931 So.2d 1194. After a thorough review of the record,

we cannot say that the jury was manifestly erroneous or clearly wrong in finding that

Plaintiff did not prove by a preponderance of evidence that he was a seaman under

the Jones Act.

Plaintiff also argues he received a new assignment of work duties in 2001, such

that it entitles him to be classified as a Jones Act seaman under an exception set forth

by Chandris. The Chandris court noted there is a limited exception to the

requirement that an employee must spend at least thirty percent of his entire

employment on vessels. This very narrow jurisprudential exception provides that if

an employee receives a new work assignment in which his essential duties are

changed, he is entitled to have the assessment of his vessel-related work made on the

basis of his activities in his new position. The United States Fifth Circuit Court of

Appeals in Becker v. Tidewater, Inc., 335 F.3d 376, 389-90 (5th Cir. 2003), discussed

in detail this exception:

[T]he Supreme Court has articulated an exception to temporal
guidelines, such as our thirty-percent benchmark. First, an employee
who has worked for years in an employer’s shoreside headquarters and
who is then reassigned to a ship in a classic seaman’s job qualifies for

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seaman status even if he is injured shortly after reassignment. Second,
a worker who has been reassigned to a land-based job cannot claim
seaman status based on prior service at sea. The [Chandris] Court
summed up these two exceptions by noting that “[i]f 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.” Thus, a worker who, over the course of his employment, has
worked in the service of a vessel in navigation well under thirty percent
of his time may still qualify for seaman status if he has been reassigned
to a new position that meets this temporal requirement. It is this
exception that plaintiff now tries to utilize, claiming that his assignment
to the REPUBLIC TIDE constituted the requisite fundamental change
in his status.

This exception, however, creates a potential problem: any worker
who works intermittently on vessels in navigation and who sustains an
injury in the course of doing so will claim seaman status if he is injured
while at sea. For instance, a worker whose duties sometimes take him to
sea could claim that the start of each voyage establishes a reassignment
to a sea-based position and that his return to shore again shifts his status
back to a land-based worker. It appears that the Supreme Court
attempted to preempt such arguments by specifically rejecting a “voyage
test” of seaman status under which a worker could “walk into and out of
coverage in the course of his regular duties.” Rather, the Court’s
opinion in Chandris contemplates that a change in coverage under the
Jones Act occurs only when the status of the worker changes, not simply
because a worker happens to serve on a vessel before returning to work
on land. To give teeth to the Chandris opinion's rejection of a voyage
test, it must be held that merely serving an assignment on a vessel in
navigation does not alter a worker's status. If that were not the case,
Chandris in fact would have established a voyage test. This conclusion
is consistent with the language of Chandris, which instructs that “we do
not believe that any maritime worker on a ship at sea as part of his
employment is automatically a member of the crew within the meaning
of the statutory scheme.”

(Citations omitted).

Plaintiff’s argument shows a basic misunderstanding of the reassignment

exception. Plaintiff acknowledges that at all times during his employment with

defendant, he was a member of a pile driving crew. What he argues is that, beginning

in 2001, Plaintiff began spending significantly more time on the water than in

previous years. However, the record established that at all times during his

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employment with Defendant, Plaintiff’s essential duties never changed. His co-

worker Timothy Hall stated that he and Plaintiff were always “considered pile

drivers.” Plaintiff was considered a pile driver when he worked at the job site at the

Port of Lake Charles where he was injured.

In Little v. Amoco Production Co., 98-1130 (La.App.1 Cir. 5/14/99), 734 So.2d

933, the appellate court affirmed the denial of seaman status finding the plaintiff’s

“essential duties” did not change. The court explained:

Appellant argues that either his second crew assignment or his
work with the tongs aboard the Suard 50 constitute new assignments
and, consequently, he holds seaman status regardless of his time spent
aboard the Suard 50. However, appellant’s essential duties did not
change in either instance. Both crews to which appellant was assigned
performed casing work. While appellant's particular duties may have
varied with each assignment, they were still within the normal duties
performed by a member of a casing crew.

Id. at 940.

The same situation occurred here. While Plaintiff’s location may have changed

at different jobs, his essential duties never did. While employed by F. Miller and

Sons he performed the normal duties of a pile-driver. Therefore, the jury did not err

in finding there had been no “reassignment” prior to Plaintiff’s injury.

Because we affirm the jury’s finding that Plaintiff did not establish status as a

Jones Act seaman, the arguments concerning liability and damages are rendered moot.

DECREE

For the foregoing reasons, the judgment of the lower court is affirmed. All

costs of this appeal are assessed to plaintiff-appellant, Ovie Reeves.

AFFIRMED.

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