Opinion
8:99CV48
October, 2000
MEMORANDUM AND ORDER
This matter comes before the Court on the plaintiff's motion to vacate the Court's entry of summary judgment (filing 63-2). In support of her motion, the plaintiff has filed an index of evidence (filing 66), a supplemental index of evidence (filing 71) and submitted a supporting brief. In opposition to the motion, the defendant has filed an index of evidence (filing 68), a supplemental affidavit (filing 69), and a brief in opposition. On August 11, 2000, the Court heard oral arguments. After carefully considering the evidence and arguments, the Court shall vacate its judgment and remand the case to the magistrate judge for a new progression order.
I. Background
Plaintiff was employed as a part-time blackjack dealer at Harvey's. On September 11, 1997, Biering was working on the upper or main decks of the M/V Kanesville Queen. As she was returning to her shift as a part-time dealer from her hourly break at approximately 12:20 a.m., she allegedly tripped while descending one of the vessel's interior staircases and sustained personal injuries.
The M/V Kanesville Queen is a 272-foot steel excursion vessel which operates as a casino river boat on the Missouri River. The vessel has officers, including a captain, chief engineer, mates, as well as engineering technicians, deck hands, and security personnel. These personnel are known as the "hard crew." The gaming employees, including the plaintiff, are known as the "soft crew."
The vessel is under the jurisdiction of the United States Coast Guard. The M/V Kanesville Queen takes 100 cruises per year. When the vessel is not cruising, the vessel is moored in a slip. The excursion season runs from April 1 through October 31 each year. The plaintiff's injury occurred during the cruising season.
On February 10, 1999, the plaintiff filed a three-count complaint alleging jurisdiction based on the Jones Act, 46 U.S.C. § 688, and the General Maritime Law of the United States, including the doctrines of unseaworthiness and maintenance and cure. On April 28, 2000, the defendant moved for summary judgment, contending that the plaintiff, as a matter of law, did not have "seaman" status under the Jones Act. On June 15, 2000, the Court heard oral argument on the defendant's motion for summary judgment. On June 28, 2000, the Court entered summary judgment in favor of the defendant (filing 57). The plaintiff has since filed a motion to vacate the judgment (filing 63).
II. Standard of Review
The seaman inquiry is a mixed question of law and fact. McDermott Int'l. v. Wilander, 498 U.S. 337, 356 (1991). Often, it will be inappropriate for the Court to take the mixed question from the jury. Chandris, Inc. v. Latsis, 515 U.S. 347, 368-69 (1995). Summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion. Wilander, 498 U.S. at 356, and Chandris, 515 U.S. at 368-369.
III. Discussion
At the hearing on the plaintiff's motion to vacate judgment, both parties introduced evidence (filings 66, 68 69). The evidence included copies of the defendant's employee handbook (filing 68, Exs. 1 2) as well as correspondence relating to the plaintiff's on-the-job injury authored by the defendant's maritime claim adjuster (filing 71, Ex. 2). Pursuant to a section entitled "Medical/Dental Benefits" the defendant's employee handbook provides, "All employees are covered under the State workers compensation or Jones Act provisions (any employee who spends 30% or more of their working time on the casino) for on-the-job injuries." (Filing 68, Ex. 1) The defendant's employee handbook, revised in April 1997, reads in pertinent part, "All employees are covered under the State workers compensation or Jones Act provisions (any employee who spends 30% or more of their working time on the boat) for on-the-job injuries." (Filing 68, Ex. 2) The factual record in this case is undisputed that the plaintiff spent more than 30% of her working time on the boat.
Similarly, correspondence pertaining to the plaintiff's on-the-job injury suggests that the defendant considered the plaintiff to be a Jones Act employee. In a letter dated January 28, 1998, Stuart Platt of Platt Marine Services, Inc., wrote Randall Shanks, the plaintiff's attorney, stating, "As you are aware, under the Federal Maritime Law, we are only responsible for necessary andreasonable medical expenses. . . ." (Filing 71, Ex. 2 at pp. 1-2 ) (emphasis added). In a second letter regarding Ms. Biering dated June 26, 1998, Mr. Platt wrote, "Since she has chiropractic care that we deem to be unnecessary and unreasonable, we will no longer pay for any chiropractic care that your client obtains, nor will she receive any further_maintenance benefits or cure benefits under the General Maritime Law at this time." Id. at pp. 3-4 (emphasis added).
In a factually similar case involving the defendant and an injured casino worker, Judge Pratt of the United States District Court for the Southern District of Iowa ruled that the evidentiary record "strongly indicates that the casino itself unequivocally treated [the plaintiff] as a Jones Act worker." Lara v. Harveys Iowa Management Co., 2-98-CV-90058, *6 (S.D.Iowa, August 8, 2000). In Lara, Judge Pratt concluded that in addition to the casino's affirmative conduct in treating Lara as a Jones Act employee, "a jury could reasonably find that she was a maritime employee substantially connected in terms of duration and nature to a fully functioning gaming vessel located on the Missouri River." Id. at 12. Because the Lara case was not one in which the facts and the law reasonably supported only one conclusion, Judge Pratt denied the defendant's motion for summary judgment. Id. at 13.
Having carefully reviewed the Lara opinion, I find that Judge Pratt's decision to deny summary judgment based on the evidentiary record is well reasoned. The newly adduced evidence in this case, although not as developed as in the Lara case, suggests that the defendant considered Ms. Biering to be a Jones Act employee subject to federal maritime law. When summary judgment was entered on June 28, 2000, the Court did not have the benefit of considering this evidence. Having now done so, the Court concludes that the question of seaman status is a mixed question of law and fact which reasonably supports more than one conclusion. Accordingly, summary judgment is inappropriate, and the judgment heretofore entered must be vacated.
IT IS HEREBY ORDERED:
The plaintiff's motion to vacate entry of summary judgment (filing 63-2) is granted;
The Court's Memorandum and Order and Judgment filed on June 28, 2000 (filings 56-57), are vacated;
The defendant's motion for summary judgment (filing 33) is denied; and
The case is remanded to the magistrate judge for a new progression order.