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Naquin v Elevating Boats, L.L.C.

Case No. 12-31258 (C.A. 5, Mar. 10, 2014)

Defendant-Appellant Elevating Boats, LLC (“EBI”) employed Plaintiff- Appellee Larry Naquin, Sr. (“Naquin”) as a vessel repair supervisor at its shipyard facility in Houma, Louisiana. After Naquin was severely injured in an accident in the shipyard, a jury found that EBI was negligent, found that Naquin qualified for seaman status, and awarded him money damages under the Jones Act. Because the evidence supports the jury’s determination of seaman status and liability, we AFFIRM the district court’s judgment on liability; because the damages determination was erroneously based upon emotional anguish resulting from the death of a third party, we VACATE the damages award and REMAND for a new trial on damages.

I.



EBI manufactures, operates, and maintains a fleet of specialty lift-boats and marine cranes out of several Louisiana port facilities. EBI employed Naquin at its shipyard in Houma, Louisiana, where he had served as a vessel repair supervisor since 2005. Naquin’s primary responsibility as a vessel repair supervisor was the maintenance and repair of EBI’s fleet of lift-boat vessels. Ordinarily, Naquin worked aboard the lift-boats while they were moored, jacked up, or docked in EBI’s shipyard canal. Naquin’s spent approximately 70 percent of his total time working aboard these vessels, including inspecting them for repairs, cleaning them, painting them, replacing defective or damaged parts, performing engine repairs, going on test runs, securing equipment, and operating the vessel’s marine cranes and jack-up legs. Two to three times per week, Naquin would do his work while the vessel was being moved to another position in the canal. Occasionally, EBI dispatched Naquin to repair a vessel or fill in as a vessel crane operator while the vessel was operating in open water. Naquin spent the remaining 30 percent of his time working in the shipyard’s fabrication shop or operating the shipyard’s LC-400 land-based crane.

On November 17, 2009, Naquin was using the shipyard crane, which had been designed and constructed by EBI, to relocate a test-block, a heavy iron weight used to test the lifting capacity of cranes. Although the test-block was well within the LC-400’s rated capacity, the crane suddenly failed, causing the boom and crane house to separate from the crane pedestal. As the crane toppled over onto a nearby building, Naquin was able to jump from the crane house. However, he did not avoid injury; he sustained a broken left foot, a severely broken right foot, and a lower abdominal hernia. Naquin’s cousin’s husband, who happened to be another EBI employee, was working in the building and was crushed by the crane and killed. Naquin learned of his death while in the hospital after the accident, either later that same day or the next day.
 

 

Judge(s): W. Eugene Davis
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Damages , Employment , Torts
 
Circuit Court Judge(s)
Eugene Davis
Edith Jones
Jane Triche-Milazzo

 

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id. chandris’s second prong. the majority characterizes the facts that support thus, they offer no help to most reported decisions do not distinguish between physical and emotional pain is compensable. because a substantial portion of his emotional damages are based upon non- 51 naquin testified that he was aboard on a moving vessel less than one percent of his id. at 547, 555 (internal citation omitted). on a person’s well-being mentally. i don’t know how you sit down and try to get 4 any references to the death as prejudicial. the district court denied the motion, injuries. we therefore hold that this evidence, though circumstantial, is chandris, 515 u.s. at 370 (“the jones act remedy is reserved for sea-based water. in doing this work, naquin faced precisely the same type and degree of support” its conclusion.4 33 in several places, a plate and screws were required to repair the damage. despite 6 three column-like legs that can be quickly lowered to the seafloor to raise the vessel out of the the argument has been waived and naquin cannot rely exclusively on the fact contrary to the “fundamental distinction” that chandris recognized between maritime perils faced by the port-bound derrick barge crane operator in to be a seaman); and braniff v. jackson ave.-gretna ferry, inc., 280 f.2d 523 (5th cir. 1960) in my view, this conclusion is irreconcilable with chandris’s “basic 30 “a near miss may be as frightening as a direct hit.”54 final point of error, which alleges that the jury’s emotional damage award was tainted by an wages. ebi immediately filed motions requesting a judgment as a matter of law, must have a connection to a vessel in navigation (or to an identifiable group of see id. at 369–71. i. 71 turns on the employee’s “precise relation” to the vessel). who spends less than about 30 percent of his time in the service of a vessel in because the damages determination was erroneously based upon emotional negligence.51 party challenging the instructions must “demonstrate that the charge as a whole 60 also heise v. fishing co. of alaska, 79 f.3d 903, 906 (9th cir. 1996) (holding no. 12-31258 takes them ashore.”). an award of mental anguish damages.” see migis v. pearle vision, inc., 135 f.3d 1041, 1046 see endeavor marine, 234 f.3d at 291. and marine cranes out of several louisiana port facilities. ebi employed naquin damages for seeing that person’s injury only to those people who also happened supervisor since 2005. naquin’s primary responsibility as a vessel repair no. 12-31258 in that case, we rejected an emotional damage claim by a reviewing the relevant jury charge in its entirety, we do not agree that the jones act. no. 12-31258 see id. at 555. seaman); richard v. mike hooks, inc., 799 so.2d 462 (la. 2001) (reversing lower courts and see id. we (finding ferry’s maintenance superintendent to be a seaman). and maintain the equipment on the barge.33 ebi manufactures, operates, and maintains a fleet of specialty lift-boats1 jurisdiction of the courts of admiralty that they adapt themselves to to prove precisely why the weld failed, it is undisputed that ebi was the party such theory had been pled.47 repairing, cleaning, painting, and maintaining the 26–30 lift-boat vessels that to suffer an injury at the same time. moreover, the jones act only extends an adopted this circuit’s opinion in barrett v. chevron, u.s.a., 781 f.2d 1067 . . . [t]he ultimate inquiry is whether the worker in question is a member of supervisor was the maintenance and repair of ebi’s fleet of lift-boat vessels. percent of his time repairing and operating cranes and other equipment on ebi’s weight used to test the lifting capacity of cranes. although the test-block was phrase here. we simply apply a rule of circumstantial evidence, not no. 12-31258 see chandris, 515 u.s. at 368. production co., 595 f.2d 1070 (5th cir. 1979) (employee was a roustabout who worked aboard a worker is a seaman or member of a vessel’s crew, the supreme court has up, or docked in ebi’s shipyard canal. naquin’s spent approximately 70 percent two vessels.62 because the death of naquin’s relative is unquestionably irrelevant to the dismissing land-based repairman’s jones act claim). of danger” test, which permits recovery if the plaintiff was physically impacted the sole issue here is whether naquin’s work as a repair supervisor on he was rarely required to board a (1) that naquin was not a jones act seaman, (2) that the district court provided id. at 819–21. this figure [30%] serves as no more than a guideline . . . and naquin’s emotional damages due to the death of his relative: chandris, 515 u.s. at 371. changing the burden of proof or casting presumptions against the naquin spent the remaining 30 percent of his time working in the shipyard’s 35 stewart v. dutra constr. co. was whether the dredge was a vessel for the 8 navigation and cannot qualify as a seaman. shipyard, but he declined, asserting that he was too emotionally upset to return as our for seaman status if he has the requisite employment-related connection to the vessel.”); case: 12-31258 document: 00512554952 page: 19 date filed: 03/10/2014 2013) (finding that, because platform worker who was present when co-worker fell to his death to allow moored to a dock, faced any maritime perils in the ordinary course of his naquin’s claim for future lost wages stems solely from his inability to accept ebi’s and barge co. v. papai because his job did not literally “take him to sea.” in during his closing argument, counsel for naquin said the following regarding id. at 292. that the district court did not err in denying ebi’s motions for summary judgment, judgment . . . he has tremendous issues because of [the accident]. i don’t know that you to determine if such vessels) that is substantial in terms of both duration and nature.’”14 2 in support of its argument that naquin is not a seaman, ebi primarily ‘only when there is a complete absence of probative facts to support the between land-based workers who do not face maritime dangers and the sea- ship that was temporarily docked. he worked almost exclusively on vessels a. in consolidated rail corp. v. gottshall,49 on appeal, ebi argues that the exclusive reliance upon circumstantial lhwca) cannot distract us from the threshold inquiry: whether naquin first thus, over onto a nearby building, naquin was able to jump from the crane house. though the jones act does not define “seaman,” congress has elsewhere endeavor marine. additionally, we have dozens of cases finding oilfield workers as seamen even though they spent all their work time on these vessels no. 12-31258 contention, stating: whereas naquin was injured as he performed land-based duties. this distinction is not identifiable group of vessels, or to the accomplishment of its mission. no. 12-31258 hours aboard ebi lift-boats was spent operating the marine crane and securing the record also reveals that counsel for naquin in his closing v. for evaluating the reasonableness of naquin’s physical damage award in 12 iii. district court, naquin’s land-based repair time was connected to a vessel in findings is whether there is “reasonable evidentiary basis for the jury’s verdict.”5 a worker’s job is specifically identified for coverage under the lhwca.11 several other considerations bolster this conclusion. if multiple people defendant-appellant consistent with the usual articulation, we conclude that the district court did not naquin’s time repairing the lift-boat cranes satisfies the duration component. id. at 819. f.3d at 291. see also grab v. boh bros. constr. co., l.l.c., 506 f. app’x 271, 276 (5th cir. distinguishing seamen from harbor workers as a matter of law. a vessel in navigation (or to an identifiable group of such vessels) that is sufficient to support the jury’s finding of negligence. witnesses, circumstances, and facts, we do not necessarily require expert medical testimony. in the instant case, the district court charged the jury as follows: upon to determine the extent to which an employer is liable for emotional “[s]atisfying the first prong of the [seaman] test is relatively easy: the extremely hard. witness an injury to someone else, it would be arbitrary to award emotional this man has been through. that’s up for you all to decide. was a derrick barge crane operator who loaded and unloaded cargo vessels in and failing to emphasize that a seaman’s connection to vessels must be performed most of his repairs on land); schultz v. louisiana dock co. 94 f. supp. 2d 746 (e.d. or within the zone of potential impact; and (3) the “relative bystander” test, district court’s explanation reveals a careful attempt to explain a difficult-to- status where employee worked on barge that traveled through navigable waters); colomb v. f i l e d also qualify for coverage under the lhwca.10 workers may face fewer risks, they still remain exposed to the perils of a divided nearly all of his remaining time between the fabrication shop and operating a land- district judge of the eastern district of louisiana, sitting by designation. naquin for his depression despite the lack of corroborating medical testimony. “any award nonetheless distinguished between plaintiffs who suffer emotional harm from an ebi first argues that the jury erred in its determination that naquin was navigant consulting, inc. v. wilkinson, 508 f.3d 277, 293 (5th cir. 2007) (internal the jury with erroneous seaman status instructions, (3) that the evidence is no. 12-31258 39 id. at 119. jones act coverage if his connection to the ebi lift-boat fleet is “substantial in finally, the majority refers to our “brown water” cases to show that 286 f.3d 827, 830 (5th cir. 2002). nonetheless, we have also previously recognized our case, the district court held that plaintiff was not a seaman under harbor tug crewmen-bystanders to recover for witnessing the misfortune of another.”64 fabrication shop or operating the shipyard’s lc-400 land-based crane. take the question from the jury.”3 id. at 556 (emphasis added). time at work. no. 12-31258 41 instructing the jury on the issue of seaman status. we apply a two-part test in because res ipsa was never specifically pled or asserted, ebi argues, one surgery to repair his right foot. because naquin’s right foot was fractured argument leaned heavily on the emotional damages naquin suffered as a result physically injured or the emotional harm suffered from almost being physically claim for emotional harm arising from the injury to his relative. in other words, see producers drilling co. v. gray, 361 f.2d 432 (5th cir. 1966) (affirming seaman including those arising from an injury to someone else. there, the court clarified that the jones act covers any case: 12-31258 document: 00512554952 page: 26 date filed: 03/10/2014 he continued to complain of chronic pain in his feet, difficulty walking, and and skillful mariners who breast the angry waves of the atlantic; as the issue has been raised by ebi, we separately note the proper work-life expectancy 56 roberts v. cardinal servs., inc., 266 f.3d 368, 376 (5th cir. 2011). see 45 u.s.c. § 51. naquin’s status as a seaman. on this issue, i respectfully disagree. on vessels that do not require long-term repairs. according to the majority, employee’s connection to the barge was not substantial in nature because “it did death of his cousin’s husband, was kept from him “for [his] own good.” are necessary to the function and operation of any vessel.18 nature. id. at 291. argues, naquin’s coverage under the lhwca precludes his coverage under the perils. id. at 291. further, we ruled that the plaintiff faced such perils. id. becker, 335 f.3d at 387–88 (internal quotation marks and citation omitted). 14 boatel, inc. v. delamore, 379 f.2d 850, 853–54, 859 (5th cir. 1967) (finding diesel “motorman” importantly, an individual can still qualify for seaman status even if he divides lyle w. cayce that the challenged instruction could not have affected the outcome of the his emotional damages focused on his relative’s death, and the jury ultimately when increased by 50%, equals or exceeds the challenged jury award. see moore v. m/v happened to be another ebi employee, was working in the building and was at a bench trial, the plaintiff and naquin, however, seems clear. the endeavor marine plaintiff involves a family member, would contravene the zone of danger test’s intent to were ordinarily docked, and that he almost never ventured beyond the ebi next argues that the district court abused its discretion by erroneously hospital after the accident, either later that same day or the next day.2 id. ebi points out that its practice was to hire a third party to inspect and test crane concluded that he was regularly exposed to the perils of the sea and qualified as code art. 2315.6 (limiting bystander emotional damage claims to a spouse, child, grandchild, citation omitted). the fleet.16 bernard v. united states, 794 f. supp. 608, 611 (e.d. la. 1991); aucoin v. state through dep’t considering a challenge to the district court’s jury instructions: (1) first, the see plaisance v. texaco, inc., 966 f.2d 166, 169 (5th cir. 1992) (en banc). even putting these concerns aside, serious practical problems would be inquiry is status-based, and does not focus solely upon the employee’s activity at the time of case: 12-31258 document: 00512554952 page: 27 date filed: 03/10/2014 boom and crane house to separate from the crane pedestal. as the crane toppled not take him to sea. his work brought him aboard the barge only after the vessel that arose when his barge was moored to the cargo vessels that he was i concur in all of this good opinion except the decision affirming texaco, inc., 736 f.2d 218 (5th cir. 1984) (employee worked aboard inland submersible barge 14 satisfied when an employee spends 30 percent or more of his time in service of whether a chain manufacturer had been negligent when a defective weld in the computations should be based on the statistical average.” madore v. ingram tank ships, inc., welds, but that the records documenting who had inspected the instant crane had been fill in as a vessel crane operator while the vessel was operating in open water. fifth circuit boats, llc, 842 f. supp. 2d 1008, 1017 (e.d. la. 2012) (citing chandris, indeed, if a jury could hold naquin is a seaman, then it could so conclude as see id. (5th cir. 1998). instead, where a plaintiff’s mental anguish testimony is corroborated by other in the united states court of appeals functions and navigates much like any other supply vessel, a typical lift-boat is equipped with 431 f.2d 100 (5th cir. 1970). these repairmen could always claim that they spent their time working on the death of another person. vessels, that is substantial in terms of both its duration and nature, there can be little doubt that naquin did the ship’s work and contributed to the that ebi was responsible for the weld to establish its negligence. these inquiries are not always distinct, but are interrelated elements of the shipyard facility in houma, louisiana. after naquin was severely injured in an 58 in denying ebi’s motion for summary judgment, the district court took a responsible chain manufacturers attempt to avoid defective welds 4 when it is temporarily moored or docked for repairs. naquin v. elevating building in which he was working. arguing that the relative’s death was is wholly consistent with our own articulation of the seaman test.40 define concept to a jury of laymen. the court’s explanation points out that ordinarily requires a relationship closer than that of victim’s spouse’s cousin. see, e.g., la.civ. dutra: id. at 536. fleet of lift-boats. the evidence therefore clearly supported the jury’s implicit been designed and constructed by ebi, to relocate a test-block, a heavy iron component for other land-based repairmen who are fortunate enough to work preponderance of the evidence the following: a, or first, that he has explanations have been reasonably ruled out. see brown v. olin chem. corp., 231 f.3d 197 thus be inconsistent with the jones act’s wrongful death provision to permit 9 chandris v. latsis: (1) his duties must contribute to the function of the vessel at the end of a canal off inland waters which were eight feet deep); landry v. amoco contributes to the vessels’ functions and maintains a substantial connection with accident in the shipyard, a jury found that ebi was negligent, found that naquin, who worked nearly always in the shipyard. moreover, his primary job was to operate the crane on the barge and to repair reasonably infer that a defective weld would ordinarily not occur in 732 f.2d 475, 478 (5th cir. 1984). however, the supreme is a damage award in at least one “factually similar case from the relevant jurisdiction” that, we considered whether a derrick barge crane operator had the requisite 20 turning to the second prong of the seaman test, naquin is only eligible for the conclusion that naquin spent all of his time dockside as a “categorical cases . . . . and where undisputed facts reveal that a maritime we see no basis to distinguish endeavor marine from the instant case.36 insufficient to establish ebi’s negligence, and (4) that the district court erred by the law of employer negligence is clear: every employer has a duty to destroyed by hurricane katrina. however, this does not distinguish the instant case from 55 because naquin’s lost wages claim is also founded this court’s decision in endeavor marine is particularly instructive. there, 26 no. 12-31258 to support its argument that naquin was not sufficiently exposed to the death of another.”63 accident. you know, i hope larry gets a lot out of that. water and stabilize it for marine operations. that naquin’s connection to the ebi vessel fleet was substantial in terms of the present facts. unlike the plaintiff in chandris, naquin did not sail on a no. 12-31258 id. at 555–56. after basis for calculating future lost wages on remand: “it may be shown by evidence that a because there is no evidence indicating that ebi caused or could have foreseen a vessel in navigation, and therefore whose employment does not regularly 2 (5th cir. 1986) (en banc) on this rule of thumb.) but the court noted, 19 because they happen to be working on board a vessel when they are injured, and seamen do the district court found the 7 11 for emotional damages caused by witnessing an injury to someone else.58 not indiscriminately permit compensation for emotional damages resulting from turning to the instant case, there is no question that naquin was in the 3 because it found such evidence to be relevant to naquin’s claim for emotional case: 12-31258 document: 00512554952 page: 6 date filed: 03/10/2014 function of ebi’s vessels. as ebi concedes, naquin spent the majority of his time naquin’s reparative surgeries and 70 physical therapy sessions, he was not able clerk (5th cir. 2000). damages claim. similar cases compel us to conclude that emotional damages resulting purely finding of negligence. specifically, ebi contends that it cannot be negligent 44 see 33 u.s.c. § 902(3). maritime dangers faced by seamen on moving vessels in the open sea, we still case: 12-31258 document: 00512554952 page: 20 date filed: 03/10/2014 1983). 62 award and remand for a new trial on damages. see, e.g., clark v. am. marine & salvage, llc, 494 fed. app’x 32 (11th cir. 2012) first prong of the chandris test. in my view, however, naquin does not substantial in terms of both duration and nature. chandris v. latsis, 21 assigned to load or unload. id. at 289. he was injured, moreover, when becker, 335 f.3d at 387 (quoting chandris, 515 u.s. at 368). partially upon his non-compensable emotional injury, it too is tainted.69 guided in its deliberations; and (2) second, even where a jury instruction was by campbell, we believe that the district court sitting as a finder of worker has a clearly inadequate temporal connection to vessels in evidence in this case is essentially a dependence on the doctrine of res ipsa 512 u.s. 532 (1994). instruction: that the district court erred by presenting the two prongs of the regarding his mental anguish was supported by the testimony of his wife, his visits to doctors character and severity of the injury to the plaintiff's emotional well-being.” salinas v. o’neill, fundamental purpose of the substantial connection requirement is “to separate 10 because of that non-compensable emotional distress are likewise non-compensable. “zone of danger.”55 also been injured. to award damages for observing a “bad sight,” even one which see pizzitolo v. electro-coal transfer corp., 812 f.2d 977, 982–84 (5th cir. 1987). id. at 103. conversely, the appropriate standard of review to test a jury’s factual naquin’s claims for emotional damages. at the trial, much of naquin’s claim for certainly [the plaintiff] bore the burden of proof to show campbell’s id. at 289. his time among multiple vessels under common ownership or control.15 no. 12-31258 was moored or in the process of mooring.”34 54 terms of both duration and nature. we therefore hold that the evidence supports working on docked vessels under repair essentially removes the duration no. 12-31258 case: 12-31258 document: 00512554952 page: 8 date filed: 03/10/2014 no facts showing that naquin, who spent nearly all of his time on boats his mind has been through and his experiences have been hurt. i would suggest, the rest of naquin’s hours were not connected with a vessel in navigation. he “indeed, individuals within the zone of danger: the emotional harm suffered from being iv. conclusion 25 reversed, holding that the “going to sea” requirement is satisfied whenever submerged in quiet inland canals and waterways.37 61 the sea-based maritime employees who are entitled to jones act protection from this court considered this precise argument on nearly identical facts in see strong v. b.p. exploration & prod., inc., 440 f.3d 665, 669 (5th cir. 2006). during his testimony on direct examination, naquin stated that paramedics told him for the eastern district of louisiana was not “in immediate risk of physical harm,” he was not entitled to emotional damages). status and liability, we affirm the district court’s judgment on liability; case: 12-31258 document: 00512554952 page: 16 date filed: 03/10/2014 that a land-based repairman assigned to perform routine, off-season to him is whether you’ve understood it or not. i don’t know how you put a value 24 the fact that naquin performed ship repair duties (identified as covered by the awarded him $1,000,000 for past and future emotional suffering. id. at 821. see also barker v. hercules offshore, inc., 713 f.3d 208, 225 (5th cir. 7 week, naquin would do his work while the vessel was being moved to another over water to his worksite and exposed him to the uniquely maritime dangers appeal from the united states district court case: 12-31258 document: 00512554952 page: 9 date filed: 03/10/2014 46 we finally concluded, “whatever merit allowing recovery huffman v. union pacific r.r., 675 f.3d 412, 425 (5th cir. 2012) (citation omitted). * 68 case.”39 see, e.g., producers drilling co. v. gray, 361 f.2d 432 (5th cir. 1966) (employee gottshall court considered whether an employee could recover for emotional world.29 see, e.g., becker, 335 f.3d at 387–88. ebi next argues that the evidence is insufficient to support the jury’s potentially limitless, the court observed the need for limits on those who can because the continued to say that he thought the information regarding their injuries, specifically the defined it as the “master or member of a crew of any vessel.”13 to work. although naquin’s medical treatment had ceased, at the time of trial, equipment.42 naquin is a land-based ship-repairman, he is not connected to vessels in even if the supreme court had adopted the “relative bystander” test, that test the supreme court has endorsed this court’s general rule of thumb:“a worker required to spend the night aboard a vessel, that the vessels he worked upon retry only other elements of damage. “[w]here, as here, the jury’s findings on statement from chandris out of context to reach a conclusion that runs relative bystander test, which would have permitted certain relatives to recover co., l.l.c, 506 f. app’x 271, 274, 276 (5th cir. 2013). naquin’s shore-side recover such damages.52 9 no. 12-31258 4 see id. although no expert testified concerning naquin’s depression, naquin’s own testimony evidence. campbell objects that the pleadings and evidence did not becker v. tidewater, inc., 335 f.3d 376, 386 (5th cir. 2003). damages arising from the death of his relative are not compensable under the 12 of ebi’s motions, and ebi now appeals. case: 12-31258 document: 00512554952 page: 5 date filed: 03/10/2014 chandris and sw. marine, inc. v. gizoni, 502 u.s. 81 (1991), broadly commit crushed by the crane and killed. naquin learned of his death while in the the accident. however, we are still left with the question of whether naquin may assert a that little $550,000 is what his pocketbook is hurt, then what can you imagine distress from his employer after witnessing a co-worker die due to the employer’s inadvertent discussion of previously-excluded testimony. duties exposed him to no such maritime perils. location of [naquin’s] work.” in fact, the court’s instruction mirrors the supreme position in the canal. occasionally, ebi dispatched naquin to repair a vessel or no. 12-31258 accordingly, we conclude 49 these cases to the jury, but they do not prevent courts from ever however, we rejected the chain manufacturer’s [i]t seems a stretch of the imagination to class the deck hands of a compensate for physical dangers. accordingly, we hold that naquin’s emotional case: 12-31258 document: 00512554952 page: 3 date filed: 03/10/2014 the employee’s connection to the vessel regularly exposes him to maritime the purpose of this requirement is to distinguish entitle a dockside worker like naquin to jones act coverage. the sole issue in maritime work environment.28 63 iii. nature component under this circuit’s “maximum recovery rule,” we will uphold a jury award if there accordance with law, it [i]s proper to order a new trial only as to damages.”70 ordinarily, naquin worked aboard the lift-boats while they were moored, jacked regular connection”; that the connection must be “more than a temporary or issues of seaman status and ebi negligence, the only issue to which it might base, a weld which was indisputably defective and the direct cause of naquin’s navigation, the court may take the question from the jury . . . . 866 f.2d 816 (5th cir. 1989). barges in inland waters and marshes); grab v. boh bros. const. co., llc, 506 f. app’x 271 of a victim who are physically near and who observe the injury.53 a “vessel in navigation.” chandris, 515 u.s. at 371. (the supreme court determinations of the district court. we now address, in order, ebi’s contentions that’s a low figure. you may think who is this lawyer who is trivializing what ponchartrain. case: 12-31258 document: 00512554952 page: 22 date filed: 03/10/2014 for past and future mental pain and suffering, and $400,000 for future lost the vessel’s crew or simply a land-based employee.”) (emphasis added); see 50 1 ebi next argues that the district court abused its discretion when it have been relevant is naquin’s emotional damages. however, the jones act does although the gaston plaintiff had not been physically injured, we satisfy the duration or nature components of chandris’s second prong. i. seaman status elements substantial in terms of nature. no. 12-31258 case: 12-31258 document: 00512554952 page: 10 date filed: 03/10/2014 69 broken right foot, and a lower abdominal hernia. naquin’s cousin’s husband, who relevant to our analysis of whether naquin qualifies as a jones act seaman because that watz v. zapata off-shore co.44 connection to a vessel that was substantial in terms of nature.30 parent, sibling, or grandparent). land-based and sea-based maritime workers. cf. id. at 358. according to the crane operator to be a seaman, because “even a ship repairman (which is traditional case: 12-31258 document: 00512554952 page: 14 date filed: 03/10/2014 vessels docked in a canal or in drydock counts as service of a vessel in the mississippi river (not a canal). id. at 288. his job required him to travel as described by the supreme court, the zone of danger test allows a vessels near the shore do not face maritime perils. while these near-shore appellee larry naquin, sr. (“naquin”) as a vessel repair supervisor at its denied by federal and state courts.3 from the trial. more tellingly, the gottshall court explicitly rejected the established a two-prong test: “first, ‘an employee’s duties must contribute to the counterpart, the longshore and harbor worker’s compensation act (“lhwca”) anguish resulting from the death of a third party, we vacate the damages the 37 in endeavor marine the employee suffered his injury while working aboard a vessel, case: 12-31258 document: 00512554952 page: 1 date filed: 03/10/2014 of emotional distress: (1) the “physical impact” test, which only permits recovery ebi also complains that the jury erred by awarding mental anguish damages to 515 u.s. 347, 368 (1997). i agree with the majority that naquin passes the bound worker, much less the land-based repair supervisor suing in our case, as a general rule, the duration component of chandris’s second prong is district court inferred from the defective weld that chain manufacturer was particular person, by virtue of his health or occupation or other factors, is likely to live and terms of duration.25 see papai, 520 u.s. at 560. a connection to a vessel in navigation, or to an identifiable group of 43 to return to physical work. ebi subsequently offered naquin a “desk job” at the 543 u.s. at 497 (internal citation omitted). seaman); boh bros. const. co., llc, supra (ruling that employees who worked aboard a crane therefore retain the jury’s liability finding but order a new trial on damages.71 chronic depression. as a matter of law, or a new trial. see fed. r. civ. proc. 56(a). so we cannot utilize our usual comparative framework the supreme court’s decision in gottshall and our own reasoning in the majority then references several cases to support naquin’s claim to angela, 353 f.3d 376, 384 (5th cir. 2003). temporal connection is determined, regardless whether a single vessel or group that ebi was liable under the jones act. marine, inc. v. gizoni.9 fela—and by extension, the jones act—is whether the plaintiff was in the 65 25 that near-shore workers “still remain exposed to the perils of the sea,” citing united states court of appeals naquin qualified for seaman status, and awarded him money damages under the at its shipyard in houma, louisiana, where he had served as a vessel repair same substantial connection requirement.22 employees who work on quiet waterways may recover under the jones act. la. 2000) (ruling that repairman who inspected and repaired moored barges was not a 53 because we remand the case for a new trial on damages, we need not consider ebi’s ebi operated out of the houma shipyard. moreover, the remainder of naquin’s 10 case: 12-31258 document: 00512554952 page: 25 date filed: 03/10/2014 must separately demonstrate that his connection to a vessel or fleet of vessels a new trial, a new trial on damages, and remittitur. the district court denied all however, he did not avoid injury; he sustained a broken left foot, a severely ‘bad sight,’ i.e., harm to another.”59 in the instant case, naquin spent approximately 70 before davis and jones, circuit judges, and milazzo, district judge.* under the governing law the plaintiff is a seaman if he proves by a damages in gottshall emphasizes the limited scope of damages available to entitled to seaman status and, therefore, reverse the district court’s ruling jones act is a mixed question of law and fact and it is usually inappropriate to similarly, the dispositive factor in grab v. boh bros. constr. co., l.l.c., was along the length of the lake pontchartrain bridge. grab v. boh bros. constr. see id. 23 52 48 38 28 texaco, inc., 736 f.2d 218 (5th cir. 1984) (holding that oilfield worker assigned to inland, harbor worker duties. as ebi points out, the jones act’s land-based worker (5th cir. 2013) (per curiam) (unpublished) (employees worked aboard a crane barge in lake who could have implemented more stringent weld safety standards. relying identifying three major limiting tests for evaluating claims of negligent infliction admitting evidence of naquin’s relative’s death to support naquin’s emotional the deck for voyage. equipment operators and mechanics performing such tasks no. 12-31258 chandris. requisite employment-related connection to the vessel.”). for emotional damages if the plaintiff sustains a physical impact; (2) the “zone jones act seaman and that ebi’s negligence caused his injury. the jury awarded but such and so far-reaching are the principles which underlie the a defective weld had occurred during the manufacture of the chain naquin’s connection to the ebi fleet is only substantial if it was “an actual, a lift-boat is a self-propelled, self-elevating, offshore supply vessel. although it relative’s death, the emotional portion of his damages is tainted.65 iv. event “directly affecting him” and plaintiffs who suffer harm from “witnessing it relates to damages and remand for proceedings consistent with this opinion. 45 of the enumerated occupations under the lhwca) may qualify for seaman status if he has the chandris regarding temporarily moored or docked vessels is inapplicable to and social workers, and his prescription use of an anti-depressant drug following the accident. 42 no. 12-31258 case: 12-31258 document: 00512554952 page: 13 date filed: 03/10/2014 worker who qualifies as a “seaman,” without regard to whether a worker may no. 12-31258 see id. at 371. 15 or to the accomplishment of its mission; and (2) he must have a connection to 5 based workers who do face those dangers.27 of vessels is at issue.”24 3 no. 12-31258 performing engine repairs, going on test runs, securing equipment, and defendant.48 submersible barge was a seaman); landry v. amoco production co., 595 f.2d 1070 (5th cir. court did not refer to it. the evidence credibly established that ebi was negligent in the construction and/or maintenance of the lc-400 point,” which is that land-based employees like naquin are not seamen. navigation should not qualify as a seaman under the jones act.”23 16 for emotional injury greater than nominal damages must be supported by evidence of the to be a seaman, naquin must satisfy the two-prong test established in thus, a worker seeking seaman status despite the simplistic appeal of naquin’s argument, there is no caselaw therefore, the court specifically raise the doctrine of res ipsa loquitur and the district questions relating to liability were based on sufficient evidence and made in id. 67 40 a seaman.35 elevating boats, l.l.c., terms of both duration and nature.”19 as the supreme court has explained, the trauma, or the fear of physical trauma, to the plaintiff but from witnessing a on appeal, ebi challenges multiple legal conclusions and factual moving vessel and he never traveled beyond the immediate dock area.32 19 well within the lc-400’s rated capacity, the crane suddenly failed, causing the “the determination of whether an injured worker is a seaman under the expose them to the perils of the sea.”20 with all respect to the majority, i would hold that naquin is not id. at 292 n.4. function of the vessel or to the accomplishment of its mission.’ second, ‘a seaman because ebi designed, constructed, operated, and maintained the at 292. the contrast between the work performed by the endeavor marine finding that naquin had a connection to the ebi fleet that was substantial in maritime employees whose work regularly exposes them [to maritime peril]” . mud dredge in the quiet waters of a potomac creek with the bold 31 ebi levels a very specific complaint against the district court’s isolation.67 larry naquin, sr., the jury’s finding that naquin is a seaman.38 because the jury’s seaman status finding was supported by the evidence, it follows does not qualify as a seaman because his duties do not “regularly expose[ him] creates substantial and ineradicable doubt whether the jury has been properly because the district court’s seaman status instruction was clear and jones act and the evidence regarding those damages should have been excluded see loehr v. offshore logisitics, inc., 691 f.2d 758, 760 (5th cir. 1982). in the shipyard canal, or operating a land-based crane, or working in the 5 by crewboat and helped navigate a barge, which routinely had to be moved law are reviewed de novo. to emotional damages, is entitled to the full spectrum of emotional damages, damages. the relative was killed when the collapsing crane crushed part of the case: 12-31258 document: 00512554952 page: 2 date filed: 03/10/2014 vessels “in navigation” despite the fact they do all of their work on or tied to the court then surveyed the common law on the issue, under res ipsa loquitur, a jury is permitted to infer negligence on the part of the one case: 12-31258 document: 00512554952 page: 12 date filed: 03/10/2014 seaman’s status, but they have no bearing on what circumstances, if any, 515 u.s. at 373-74). the majority concludes without further discussion that for the reasons stated above, we affirm the judgment of the district 22 performed doing the ship’s work on vessels docked or at anchor in navigable action to recover for the death of a seaman to his immediate family.60 20 case: 12-31258 document: 00512554952 page: 11 date filed: 03/10/2014 no. 12-31258 the crane operator was not literally “taken to sea” and did not face some of the defendant-appellant elevating boats, llc (“ebi”) employed plaintiff- 234 f.3d 287. barge to be positioned alongside the cargo vessel. id. naquin, on the other aboard the lift-boats to gas them up before they left the repair yard. 18 8 immediate canal area or onto the open sea. however, courts have consistently 16 case: 12-31258 document: 00512554952 page: 15 date filed: 03/10/2014 immediately after the accident that the workers in the building were “doing all right.” he 6 weighing in on the durational aspect of the vessel-connection requirement, term does “not include land-based workers”). moreover, the passage in on november 17, 2009, naquin was using the shipyard crane, which had navigation. naquin spent 70 percent of his time employed in this capacity.1 case: 12-31258 document: 00512554952 page: 18 date filed: 03/10/2014 26 13 the supreme court was called struck by a mooring cable as he was handling the lines while waiting for his 34 no. 12-31258 all of these cases, however, involve employees who performed their work relevant question is whether, in the course of his current job, he substantially 23 for purely emotional injury may have or may lack, we see none in allowing mere the “first basic principle” behind chandris’s definition of seaman is that the offer of sedentary work due to his continuing emotional distress. however, the lost wage work a longer, or shorter, period than the average. absent such evidence, however, emotional suffering was based upon the non-compensable harm caused by the 59 jones act. because the evidence supports the jury’s determination of seaman has recommended for determining seaman status. see, e.g., mcdermott int’l, to any shore-based worker who maintained ebi’s on-board computers or went while their vessel was operating on water.4 [(the chain manufacturer)] negligence. but once it was proved that 3 claimant need only show that he does the ship’s work.”17 in my view, the majority also misapplies endeavor marine. in that and other “brown-water” workers on drilling barges and other vessels qualified anyone else to recover for the negligent death of a coworker. purposes of the jones act. the court did not address whether the harbor- 1 21 in the knowledge that they are dangerous. the finder of fact could case: 12-31258 document: 00512554952 page: 17 date filed: 03/10/2014 consequences of naquin’s emotional distress are only compensable to the extent his distress operator worked exclusively on a stationary crane barge used to load and unload expressly identifies “ship repairm[e]n” as subject to its coverage.7 assertion” that does not demonstrate that naquin was protected from reasoned, the appropriate test for awarding emotional damages under see id. (“[e]ven a ship repairman (which is traditional longshoreman work and is one qualifies as a seaman.12 18 45 u.s.c. §§ 51–60. 27 22 1979) (providing that worker employed as roustabout aboard barges on inland waters is a hadra v. herman blum consulting engineers, 632 f.2d 1242, 1246 (5th cir. 1980). despite a reversal of the test’s normal organization, the above instruction see stewart v. dutra constr. co., 543 u.s. 481, 497 (2005); endeavor marine, 234 there is no basis on which to distinguish this case from the holding of remove him from his exposure to cognizable dangers of the sea.”). inc. v. wilander, 498 u.s. 337, 356 (1991) (holding that jones act status performance of any of those activities caused naquin’s injuries. case: 12-31258 document: 00512554952 page: 24 date filed: 03/10/2014 c. no. 12-31258 2013) (unpublished) (“[t]he fact that [the injured employee] returned home daily did not court as it relates to liability, but vacate the judgment of the district court as maritime perils. but in the next sentence, the majority categorically asserts seaman test in reverse order, by “garbling” the separate requirements of the test, we reversed. despite the fact that of his relative’s death.68 as always, conclusions of see harbor tug & barge co. v. papai, 520 u.s. 548, 558 (1997). watz, where the chain manufacturer similarly insisted that it had conducted tests on the who exercised control over an item where that item has caused the damage and other plausible fact could reasonably infer negligence from that circumstantial compensable emotional distress arising from the death of his relative, future wages lost see id. at 292. inquiry is fundamentally status based: land-based maritime workers do not become seamen discrete fleet of vessels and has a connection with the fleet that is substantial in 47 affirmed in part, vacated and remanded in part. we therefore review the evidence “in the light most favorable to the verdict. for the fifth circuit faced maritime peril. stewart v. dutra const. co., 543 u.s. 481, 485 (2005). court rejected this position and overruled our decision in pizzotolo in southwest them to sea-related dangers. the plaintiffs travelled daily to their worksite duties. this “moving right along” approach to the particulars of naquin’s chain caused it to snap, injuring a shipyard worker below.45 hand, spent nearly all of his time dockside, repairing boats that were secured 2 re endeavor marine inc., 234 f.3d 287, 289 (5th cir. 2000) (per curiam). we 36 again, two to three times that is very fair for this man. some of you may feel manufactured by ebi, fell when the weld which bound the crane to its base performed maintenance work on submersible drilling barge in a navigable canal); colomb v. presented at trial if we were to save some elements of the damage award and in this case, the testimony at trial established that the crane, which was jones act plaintiff “to recover for emotional injury caused by fear of physical all the new kinds of property and new sets of operatives and new argues that naquin is a land-based repairman who performs classic land-based 15 occasional connection”; and that the jury should “focus on the nature and the absence of negligence. we see no reason to invoke the latin similar to that of other land-based employees whose seaman status has been 13 land, safely removed from maritime dangers. to me, this outcome defies logic b. concluding erroneous, “we will not reverse if we determine, based upon the entire record, 27 concluding that though potentially prejudicial, the evidence was relevant to 502 u.s. 81, 87–88 (1991). jones, circuit judge, dissenting. ii. irrelevant to any of the issues at the trial, ebi filed a motion in limine to exclude on appeal to this court, the chain manufacturer argued that the compensable under the jones act. such is the case even when the plaintiff has repairs, cleaning them, painting them, replacing defective or damaged parts, rejected the categorical assertion that workers who spend their time aboard defective chain but had destroyed the documentation in the ordinary course of business. a seaman entitled to jones act coverage. specifically, ebi argues that because which extends recovery to those in the zone of danger as well as close relatives navigation because, as chandris noted, a vessel remains in navigation even march 10, 2014 no. 12-31258 zone of danger and may therefore claim damages for his emotional harm. provide its employees with a reasonably safe work environment and work barge on lake ponchartrain were seamen). charge was confusing or misleading. quite the opposite, a careful review of the see, e.g., simeon v. t. smith & son, inc., 852 f.2d 1421, 1427 (5th cir. 1988); naquin to accrue the 30 percent minimum temporal connection while solely failed. ebi’s witness testified that the test block being moved by the crane was and found himself on a navigable vessel only on rare occasions.2 no. 12-31258 see chandris v. latsis, 515 u.s. 347, 355–56 (1995); 33 u.s.c. § 902(3)(g). well within the rated capacity of the lc-400 crane. although naquin was unable naquin contends that a jones act plaintiff, once physically injured and entitled i also disagree with the majority’s analysis of the nature component of of his total time working aboard these vessels, including inspecting them for longshoreman work and is one of the enumerated occupations under the lhwca) may qualify like the crane operator in that case, naquin’s primary job duties were who was responsible for the design of the crane and the integrity of the weld and sitting in admiralty, the watz court considered conditions which are brought into existence in the progress of the maritime perils to merit seaman status, ebi emphasizes that naquin was rarely watz. ebi was the only party responsible for welding the lc-400 crane to its those land-based workers who have only a transitory or sporadic connection to lhwca and jones act are mutually exclusive compensation schemes, ebi case: 12-31258 document: 00512554952 page: 21 date filed: 03/10/2014 damages under the federal employers’ liability act (“fela”).50 recognizing that the emotional harm caused by an accident is finding of seaman status unless the facts and the law do not “reasonably id. at 546. id. shipyard fabrication shop. his employment, in sum, was substantially no. 12-31258 see in re endeavor marine inc., 234 f.3d 287, 291 (5th cir. 2000). or reasoning to support it. instead, the supreme court’s discussion of emotional i think when you assign a value to that, i think one thing you’re signalling (sic) case: 12-31258 document: 00512554952 page: 23 date filed: 03/10/2014 negligent.46 naquin $1,000,000 for past and future physical pain and suffering, $1,000,000 although vessel repair is classic seaman’s work, ebi argues that naquin jones act plaintiff who watched his half-brother get crushed to death between from another person’s injury, and not a fear of injury to one’s self, are not accordingly, we will not disturb a jury’s court’s explanation of the seaman status test in chandris v. latsis.41 not lose jones act protection when the course of their service to a vessel [or group of vessels] 57 defective lc-400 crane which injured naquin, ebi is liable if its negligent 17 operating the vessel’s marine cranes and jack-up legs. two to three times per under this standard, maintenance on a fishing vessel did not satisfy chandris’s first prong where shipyard crane. after a three-day trial, a jury concluded that naquin was a case: 12-31258 document: 00512554952 page: 4 date filed: 03/10/2014 own court has previously recognized, it would be a “major departure from the the negligence loquitur.43 unwillingness to “hold that medical evidence or corroborating testimony is always required for that were moored, jacked up, or docked in the shipyard undergoing repair, 29 provision of fela is expressly incorporated into the jones act. specifically, the following the accident, naquin underwent one surgery for his hernia and in november 2010, naquin filed the instant jones act suit, alleging that could write anything more horrific than killing one of your relatives in an moreover, see id.; bertrand v. int’l mooring & marine, inc., 700 f.2d 240, 245–46 (5th cir. conclusion reached does a reversible error appear.’”6 64 id. at 547–49. (unpublished) (affirming dismissal of jones act claim brought by crane operator who cargo at a mississippi river dock facility.31 11 is, temporally, more than fleeting, and, substantively, more than incidental.21 the crane the injury. see chandris, 515 u.s. at 361 (“it is therefore well settled . . . that the jones act not that the workers operated near the shore but that their work exposed it would injured.56 to the perils of the sea.”26 of transp. and dev., 712 so.2d 62 (la. 1998). employment runs contrary to the fact-specific inquiry that the supreme court no. 12-31258 see, e.g., id. at 388. see also endeavor marine inc., 234 f.3d at 291 (finding barge err in its instruction on the issue of seaman status. that “fela’s central focus [is] on physical perils,” the court also recognized that based crane in the shipyard. existing jurisprudence” to “allow recovery for injuries resulting not from physical a few years ago we agreed with ebi’s position.8 this is true even in the case where departure from it will certainly be justified in appropriate case: 12-31258 document: 00512554952 page: 7 date filed: 03/10/2014 i would suggest one comparison again to his past wages and future wages. if as the supreme court explained in stewart v. ii. duration component v. flowers transp.61 w. eugene davis, circuit judge: d. 24 the record demonstrates that naquin contributes to the function of a 515 u.s. at 370–71. admitted evidence of the death of naquin’s cousin’s husband (“the relative”) plaintiff-appellee your head around someone who is actually going to kill themselves. that is application of the 30 percent test is the very means by which a substantial injury to himself.”57 and suffering awards,66 this conclusion is also most consistent with this court’s decision in gaston and disregards the overarching purpose of the jones act as stated in because we cannot discern to what extent naquin’s $1,000,000 award for 17 district court could not rely on what amounted to a theory of res ipsa when no upon this circumstantial evidence, the jury determined that ebi was negligent. and secondly that his duty contributed to the function of a vessel or 32 70 no. 12-31258 66


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