Luis Hernandez v. Uno Enterprise

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-118

LUIS HERNANDEZ

VERSUS

LOUISIANA WORKERS’ COMPENSATION CORPORATION, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 9
PARISH OF ST. MARTIN, DOCKET NO. 14-00557
HONORABLE ELIZABETH LANIER, PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy and James T. Genovese,
Judges.

AFFIRMED; MOTION TO DISMISS APPEAL DENIED.

Gregory E. Bodin
Robert L. Blankenship
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
450 Laurel Street
Chase Tower North, 20th Floor
Baton Rouge, LA 70801
(225) 381-7000
ATTORNEY FOR DEFENDANT/APPELLANT
Louisiana Workers’ Compensation Corporation

Anne K. Smith
Ogwyn Bonaventure, LLC
4224 Bluebonnet Blvd., Suite B
Baton Rouge, LA 70809
(225) 302-7188
ATTORNEY FOR DEFENDANT/APPELLEE
UNO Enterprises, LLC

Scott M. Hawkins
Hawkins & Associates, L.L.C.
4224 Bluebonnet Blvd., Suite B
Baton Rouge, LA 70809
(225) 302-7188
ATTORNEY FOR DEFENDANT/APPELLEE
UNO Enterprises, LLC

Dennis Paul Juge
Juge, Napolitano, Guilbeau, Ruli & Frieman
3320 West Esplanade Avenue North
Metairie, LA 70002
(504) 831-7270
ATTORNEY FOR DEFENDANT/APPELLEE
UNO Enterprises, LLC

Craig D. Little
Little & Boquest Law Firm
233 N. College Rd.
Lafayette, LA 70506
(337) 234-1932
ATTORNEY FOR PLAINTIFF/APPELLEE
Luis Hernandez

Eric J. Waltner
Allen & Gooch
P.O. Box 81129
Lafayette, LA 70598-1129
(337) 291-1000
ATTORNEY FOR DEFENDANT/APPELLEE
M. Matt Durand, LLC

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COOKS, Judge.

FACTS AND PROCEDURAL HISTORY
In this case, Plaintiff, Luis Hernandez, suffered an injury while cutting

timber to be used in the construction of a boat ramp. This ramp was being built on

Bayou Teche in Loreauville, Louisiana. Bayou Teche is a navigable waterway and

the ramp was to be used to launch boats into the waterway. The uncontested facts

establish Plaintiff was not injured while on the ramp, but while working in a grassy

area between thirty and one hundred feet from the ramp.

Plaintiff was an employee of UNO Enterprises, LLC, who assigned him to

work under the direction and control of M. Matt Durand, LLC. Durand, a heavy

construction company, was hired by Breaux’s Bay Craft to build the ramp.

As a result of sustaining his injury, On January 30, 2014, Plaintiff filed a

1008 disputed claim for compensation with the Office of Workers’ Compensation

(OWC). UNO Enterprises was named as his employer, and Louisiana Workers’

Compensation Corporation (LWCC) as UNO’s workers’ compensation insurer.

LWCC answered the 1008 claim, admitting it was UNO’s workers’ compensation

carrier. However, LWCC denied coverage for Plaintiff’s claim, asserting Plaintiff

was a longshoreman under the Longshoreman & Harbor Workers’ Compensation

Act (LHWCA), 33 U.S.C. 901-950, and thus, LWCC’s policy did not provide

coverage for LHWCA benefits.

UNO subsequently filed a third party demand, naming Durand as the

statutory employer of Plaintiff. Shortly thereafter, Plaintiff amended his 1008

claim to add Durand as an additional employer. Durand filed a cross-claim against

UNO and LWCC, alleging if it was liable as the borrowing employer for benefits,

then UNO and LWCC were liable for half.

On July 9, 2014, Durand filed a Motion for Partial Summary Judgment on

the issue of whether the OWC possessed subject matter jurisdiction. LWCC also

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filed an Exception of Lack of Subject Matter Jurisdiction. The motion and

exception were heard together in a single hearing before the OWC, after which the

workers’ compensation judge (WCJ) granted Durand’s motion for partial summary

judgment and denied LWCC’s exception of lack of subject matter jurisdiction.

The WCJ found Plaintiff’s claims were not governed by the LHWCA, but were

compensable under Louisiana’s workers’ compensation laws. A review of the

WCJ’s oral reasons, rendered in open court, reveal she relied on the fact that

Plaintiff “was hired for construction purposes and he was doing construction work.

. . . What is clear is that the work this employee was doing was on land.”

LWCC then filed a writ application with this court to review the ruling on

the exception, which was the proper procedural vehicle to challenge the ruling on

the exception. This court denied the writ application, “find[ing] no error in the

Workers’ Compensation court’s ruling.”

LWCC then filed the present appeal on the granting of Durand’s motion for

partial summary judgment, asserting that the WCJ erred in finding the LHWCA

does not apply in this case.

ANALYSIS
I. Law of the Case.

In response to LWCC’s appeal, Durand filed a motion to dismiss the appeal.

It based the motion on this Court’s previous denial of LWCC’s writ application

seeking reversal of the trial court’s denial of their exception of lack of subject

matter jurisdiction. Hernandez v. La. Workers’ Comp. Corp., 14-1055 (La.App. 3

Cir. 11/13/14) (unpublished opinion). Arguing the record on appeal is identical to

that of the writ application, and the same arguments were advanced again, Durand

contends our previous writ application should be considered the “law of the case,”

and the appeal dismissed.

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A prior denial of supervisory writs does not preclude reconsideration of an

issue on appeal, nor does it prevent the appellate court from reaching a different

conclusion. State v. Castleberry, 98-1388, p. 5 (La. 4/13/99), 758 So.2d 749, cert.

denied, 528 U.S. 893, 120 S.Ct. 220 (1999). Under the doctrine of “law of the

case,” an appellate court will generally refuse to reconsider its own rulings of law

on a subsequent appeal in the same case. Clement v. Reeves, 07-1154, 07-1155

(La.App. 3 Cir. 1/30/08), 975 So.2d 170, writ denied, 08-482 (La. 4/18/08), 978

So.2d 355; State v. Pettus, 11-862 (La.App. 5 Cir. 5/22/12), 96 So.3d 1240. The

law of the case doctrine is discretionary. Id. Reconsideration of a prior ruling is

warranted when, in light of a subsequent trial record, it is apparent that the

determination was patently erroneous and produced unjust results. Id. Although,

we find no error in the decision by this court on the writ, and acknowledge there

has been no new evidence presented, we feel it in the best interests of justice that a

written discussion of the parties’ arguments be undertaken. Thus, in our discretion,

we decline to apply the law of the case doctrine in this instance, and will entertain

LWCC’s appeal.

II. Is Plaintiff’s Injury Within the Confines of the LHWCA?

In the present case, there are no significant factual disputes. Instead, this matter

involves a question of law, i.e., whether the WCJ properly applied the LHWCA to

the facts herein in determining it had jurisdiction over Plaintiff’s claim. “[W]hen

there are errors of law asserted on appeal, the appellate court must make a

determination whether the workers’ compensation judge’s ruling was legally

correct.” Miller v. Blacktype Farms, 06-1202, p. 4 (La.App. 3 Cir. 3/7/07), 952

So.2d 867, 870 (citing McClain v. Pinecrest Dev. Ctr., 00-1622 (La.App. 3 Cir.

2/28/01), 779 So.2d 1112).

The sole issue before this court is whether Plaintiff was within the jurisdictional

confines of the LHWCA at the time of his injury. For the LHWCA to cover an

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employee, the employee must meet the “situs” and “status” requirements listed in

the LHWCA. See Julien v. Dynamic Industries, Inc., 10-520 (La.App. 3 Cir.

11/3/10), 52 So.3d 174, (citing Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 105

S.Ct. 1421 (1985)). The “situs” requirement involves the location where the

employee’s work is performed, and is found in 33 U.S.C. § 903(a), and provides:

Except as otherwise provided in this section, compensation shall be
payable under this chapter in respect of disability or death of an
employee, but only if the disability or death results from an injury
occurring upon the navigable waters of the United States (including
any adjoining pier, wharf, dry dock, terminal, building way, marine
railway, or other adjoining area customarily used by an employer in
loading, unloading, repairing, dismantling, or building a vessel).

The “status” requirement is found in 33 U.S.C. §§ 902(3) and 902(4), which

provide, in pertinent part:

(3) The term “employee” means any person engaged in maritime
employment, including any longshoreman or other person engaged in
longshoring operations, and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker. . . .

....

(4) The term “employer” means an employer any of whose employees
are employed in maritime employment, in whole or in part, upon the
navigable waters of the United States (including any adjoining pier,
wharf, dry dock, terminal, building way, marine railway, or other
adjoining area customarily used by an employer in loading, unloading,
repairing, or building a vessel).

LWCC argues the WCJ erred in not finding that both the situs and status

requirements of the LHWCA are fulfilled under the facts of this case. After a

thorough review of the record, we find no error on the WCJ’s part.

Initially, LWCC attempts to establish the situs requirement by contending

Plaintiff was essentially engaged in the building of a “pier” in the form of a boat

launch. Undoubtedly, LWCC likens the boat ramp to a pier because a pier is a

statutorily enumerated situs under the LHWCA. We find this argument

unpersuasive. As noted by appellees, the United States Court of Appeals for the

Ninth Circuit in Hurston v. Director, Office of Workers Compensation Programs,

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989 F.2d 1547, 1553 (9th Cir. 1993), held a pier for the purposes of the LHWCA is

“a structure built on pilings extending from land to navigable water.” There was

no evidence presented to establish the boat ramp was a “structure built on pilings

extending from land to navigable water,” and it is self-evident that a boat ramp

does not extend into the water on pilings. As the Ninth Circuit stated in Hurston,

whether a facility is a “pier” is a pure factual question in the absence of a definition

in the LHWCA. Id. at 1553. Thus, it cannot be said the WCJ erred in concluding

the boat ramp was not a pier for purposes of the LHWCA.

LWCC also contends the “injury in this matter occurred on an area

customarily adjoining navigable waters, which would bestow situs.” We do not

agree. To fulfill the LHWCA’s situs requirement, a plaintiff’s injury must occur

on an enumerated situs, or an “adjoining area customarily used by an employer in

loading, unloading, repairing, dismantling or building a vessel.” 33 U.S.C. §

903(a).

There was no evidence to establish the adjoining area in question here was

customarily used by an employer in loading, unloading, repairing, dismantling or

building a vessel. It was undisputed that Plaintiff was not injured while on the

ramp, but while working on a grassy area at least thirty feet from the ramp.

Moreover, the area where Plaintiff was injured had not been previously used for

maritime activities, as it was well off the bank, and was simply a grassy field

where Plaintiff performed his construction activities.

Thus, we find nothing in the record to establish the WCJ committed any

legal error in finding the area where Plaintiff was injured was not a covered situs

under the LHWCA.

As to its argument on “status,” LWCC argues that “maritime employment,”

as contemplated in 33 U.S.C. §§ 902(3) and 902(4), extends to any worker whose

employment involves an essential part of the process of the five types of maritime

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activity specifically set out by the LHWCA: loading, unloading, repairing,

building and dismantling a vessel. Appellees note the United States Supreme

Court in Herb’s Welding, 470 U.S. 414, held the “maritime employment”

requirement serves to function as a limitation on the expanded definitions of

navigable waters. The court explained as follows:

The expansion of the definition of navigable waters to include rather
large shoreside areas necessitated an affirmative description of the
particular employees working in those areas who would be covered.
This was the function of the maritime employment requirement. But,
Congress did not seek to cover all those who breathe salt air. It’s
purpose was to cover those workers on the situs who are involved in
the essential elements of loading and unloading; it is “clear that
persons who are on the situs but not engaged in the overall process of
loading or unloading vessels are not covered.” Northeast Marine
Terminal Co. v. Caputo, 449 U.S., at 267, 97 S.Ct., at 2359. While
“maritime employment” is not limited to the occupations specifically
mentioned in § 2(3), neither can it be read to eliminate any
requirement of a connection with the loading or construction of ships.
As we have said, the “maritime employment” requirement is “an
occupational test that focuses on loading and unloading.” P.C.
Pfeiffer Co. v. Ford, 444 U.S. 69, 80, 100 S.Ct. 328, 336, 62 l.Ed 225
(1979). The Amendments were not meant “to cover employees who
are not engaged in loading, unloading, repairing, or building a vessel,
just because they are injured in an area adjoining navigable waters
used for such activity.” H.R.Rep. No. 92-1441, p. 11 (1972); S.Rep.
No. 92-1125, p. 13 (1972), U.S.Code Cong. & Admin.News 1972, p.
4708. We have never read “maritime employment” to extend so far
beyond those actually involved in moving cargo between ship and
land transportation.

Id. 470 U.S. at 423-24, 105 S.Ct. at 1427-28.

In applying the Herb’s Welding analysis in this case, the Plaintiff was

performing work on property used to construct physical reinforcements to stabilize

the earth around a boat launch. This does not automatically qualify him as a

maritime employee. The WCJ found Plaintiff’s construction-type activities were

directed toward the land, as opposed to the waters, and were not duties essential to

any of the five enumerated activities specified by the LHWCA. Thus, we cannot

say the WCJ legally erred in finding Plaintiff’s involvement, as it was, in the

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building of this boat ramp was employment sufficient to trigger the application of

the LHWCA.

DECREE

For the foregoing reasons, the judgment of the trial court granting the motion

for partial summary judgment is affirmed. All costs of this appeal are assessed to

appellant, LWCC.

AFFIRMED; MOTION TO DISMISS APPEAL DENIED.

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