Louisiana does not have concurrent jurisdiction between the state workers’ compensation scheme and federal workers’ compensation schemes. Louisiana Revised Statute 23:1035.2 provides that “[n]o compensation shall be payable in respect to the disability or death of an employee covered by the Federal Employer’s Liability Act, the Longshoremen’s (sic) and Harbor Worker’s Compensation Act, or any of its extensions, or the Jones Act.” If one of those acts apply, then the Louisiana Workers’ Compensation Act does not. In a new case, Johnson v. ACE American Insurance Company, Louisiana’s Fourth Circuit explored–albeit briefly–the lack of concurrent jurisdiction in Louisiana. The plaintiff sustained a work-related injury while aboard a boat that was involved in a collision on the Grand Pass. The injured worker filed claims under both the Louisiana Workers’ Compensation Act and the Longshore and Harbor Workers’ Compensation Act. At a hearing on exceptions filed by the defendants, the workers’ compensation judge (“WCJ”) determined that theRead more
Summary Judgment Was Not Appropriate in Jones Act Case Against Louisiana
Plaintiff worked on a ferry boat operated by the State of Louisiana, Department of Transportation and Development. On August 1, 2007, she slipped and sustained injuries while cleaning an oil leak the vessel’s engine room. After Plaintiff filed a Jones Act suit against the State, the State moved for summary judgment on the issue of causation, arguing that Plaintiff’s own negligence was the sole of her injury. In response, Plaintiff filed her own motion for summary judgment on the issue of liability, arguing that the State’s vessel was unseaworthy and that the State was negligent in failing to repair the vessel. The trial court agreed with Plaintiff and the State appealed. Louisiana’s Third Circuit first addressed causation. The State argued that Plaintiff could not prove causation because, “while cleaning the oil with soap and water, she herself created the condition which caused her injury.” The Third Circuit recognized that aRead more
Offshore Sandblaster/Painter was a Jones Act Seaman
Plaintiff worked for a company which performed both onshore and offshore sandblasting and painting. His employer contracted with a third party to undertake the sandblasting and painting of an offshore platform. Plaintiff and his crew worked on this project for two-and-a-half months. During that time, Plaintiff slept and ate on board the M/V Howard McCall, stored equipment on the vessel, and used the vessel as a work platform. Plaintiff was also injured on the vessel: he fell as he was exiting the wheelhouse. After a trial, the jury determined that Plaintiff was a Jones Act seaman, and he awarded maintenance and cure totaling $8,580.00 and $9,754.00 respectively. The first question presented to Louisiana’s Third Circuit was whether Plaintiff was a Jones Act seaman. As for the legal backdrop, the court simply quoted four (4) pages of the Supreme Court’s decision in Chandris, Inc. v. Latsis, 515 U.S. 347, 368-72 (1995). From there,Read more
Louisiana Third Circuit Follows Suit, Holds Casino Boat Not a Vessel
An intoxicated patron fell down the stairs of the M/V CROWN CASINO, a riverboat casino owned by St. Charles Gaming Company, Inc. the plaintiff filed suit seeking damages under general maritime law which, he argued, pre-empted a Louisiana statute limiting liability for loss connected with the service of alcoholic beverages. La. Rev. Stat. Ann. § 9:2800.1 (2012). The parties then filed cross motions as to whether the casino boat had vessel status. The Court of Appeal of Louisiana, Third Circuit, determined that the M/V CROWN CASINO was not a vessel for maritime purposes. A “vessel” is “every description of watercraft or artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S.C. § 3. The Supreme Court, in Stewart v. Dutra Constr. Co., 125 S.Ct. 1118, 1127 (2005), determined that “a watercraft is not ‘capable of being used’ for maritime transport in any meaningful senseRead more
Louisiana: A State Employee May Sue Louisiana Under the Jones Act
On July 1, 2011, the Supreme Court of Louisiana held that Louisiana waived its sovereign immunity from suit for injury to persons, and that the Louisiana legislature has not limited that waiver concerning suits by state employees under the Jones Act. In Fulmer, the state employee was assigned to the crew of a state-owned vessel in navigation. While patrolling Plaquemines Parish, and traveling at a high rate of speed, the employee was thrown into the air. He allegedly herniated a number of discs and suffered additional spinal injuries when he landed on the deck of the watercraft. After the employee sued the State, the State argued that it could not be sued because of sovereign immunity. Further, all of the employee’s claims would fall under the Louisiana Workers’ Compensation Act (“LWCA”), and not tort law. For the sovereign immunity argument, the State cited to the Supreme Court of the United States’ decisionRead more
LA Circuit Split: Third Circuit Says State Employee Barred From Jones Act
The plaintiff, a Senior Wildlife Enforcement Agent employed by the State of Louisiana, alleged that he was injured in a vessel due to a number of deficiencies in the boat and its operation. He sought remedies under the Jones Act. The State responded to the plaintiff’s petition with a number of exceptions, and it sought a declaration that the plaintiff’s injuries fell within the exclusive province of Louisiana’s Workers’ Compensation Act. The Court of Appeal of Louisiana, Third Circuit, agreed. It concluded that the plaintiff was not entitled to pursue his claim under the Jones Act. Louisiana’s workers’ compensation laws prevent state employees from making federal claims for injuries sustained at work. Not only does this include Jones Act claims, it also includes “any other statutorily created remedy.” The Third Circuit’s opinion creates a state circuit split because it arrived at a contrary conclusion than a recent Fourth Circuit opinion. Read more
Louisiana Loss of Consortium Claim for OCSLA Injury
On February 27, 2009, while working on an offshore platform, the plaintiff-employee was injured when a crane allegedly fell on him. The parties did not dispute that the Outer Continental Shelf Lands Act (“OCSLA”) applied to the claim. Instead, the dispute concerned whether the plaintiff-wife could assert a loss of consortium claim under Louisiana law. The defendant filed a motion for summary judgment arguing that the plaintiff-wife’s claim must be dismissed. Ultimately, the Eastern District of Louisiana concluded that “workers injured on fixed man-made structures situated on the Outer Continental Shelf and their families may utilize the state tort law of the adjacent state,” and that Louisiana tort law provides a cause of action for loss of consortium claims. The defendant’s motion was denied. Henderson v. McMoran Oil, No. 09-5626, slip op. (E.D. La. Oct. 18, 2010). (Note: I originally published this post on Navigable Waters: A Maritime, Longshore andRead more
Louisiana State Employee May Sue Under Jones Act and General Maritime Law
In a recent case issued by the Court of Appeals of Louisiana, Fourth Circuit, a plaintiff employed by the State of Louisiana, Department of Wildlife and Fisheries, sustained cervical spine injuries while he was a member of the crew of a state owned vessel. At the time of his injury, he was patrolling waters near the Head of Passes in Plaquemines Parish. The plaintiff filed a petition for damages seeking relief under the Jones Act and general maritime law. In response, the State filed a peremptory exception, asserting that the plaintiff’s sole exclusive remedy lied in Louisiana workers’ compensation law. The Fourth Circuit disagreed. The plaintiff relied on two earlier decisions to support his proposition that he could seek relief outside of the scope of the of the Louisiana Workers’ Compensation Act (“LWCA”). In Higgins v. State of Louisiana, 627 So.2d 217 (La. App. 4 Cir. 1993), the court determinedRead more
Negligent Allision of Moving Vessel With Stationary Vessel
Plaintiff, a yacht broker and expert fishing vessel operator, planned a weekend fishing trip with friends aboard the 29-foot M/V Tuner. A tropical storm delayed the fishing trip, and the M/V Tuner remained docked in a marina. Thereafter, Plaintiff noticed a 43-foot vessel, the M/V Special T, was heading directly towards the stationary M/V Tuner. The M/V Special T’s operator, Defendant, could not control the boat due to loss of power, and his attempts to restart the engines failed. He sent out an alarm to notify Plaintiff, who told Defendant not to start the M/V Special T’s engines. Defendant nonetheless continued his efforts. Although Defendant successfully restarted the M/V Special T as it came within feet of the M/V Tuner, a water surge from the newly-started engines caused Plaintiff to lose his balance and fall. Ultimately, he was diagnosed with a fractured calcaneous bone in his right heel and awarded, among otherRead more
