Opinion
CIVIL ACTION NO. 02-2880, SECTION: "K" (5).
July 29, 2003.
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment brought by defendant, Marine Transport Corporation, ("MTC"), seeking dismissal, with prejudice, of all claims of plaintiff, Hermenegildo Cordova ("Cordova"). Rec. Doc. 51. MTC contends that the Court should dismiss plaintiffs claims because on the date of the incident it was neither the Jones Act employer of Mr. Cordova nor the owner of the M/V MORMACSTAR, and therefore, plaintiffs claims for damages under the Jones Act and general maritime law for unseaworthiness and negligence are not applicable to-it. Plaintiff has opposed the motion on the grounds that MTC seeks summary judgment without addressing all of the plaintiffs claims, specifically the newly added tort claim for personal injury damages for delay in payment of cure. Rec. Doc. 60. Having reviewed the memoranda of counsel and the applicable law, the court finds that defendant's Motion for Summary Judgment should be GRANTED in part, and DENIED in part, for the following reasons.
BACKGROUND
On June 7, 2002, plaintiff, Hermenegildo Cordova filed suit in the United States District Court, for the Southern District of Texas, as a result of injuries allegedly sustained on July 8, 2001, while working aboard the M/V MORMACSTAR. On that date, plaintiff allegedly injured his back while lifting and moving a "Butterworth" tank cleaning machine. Plaintiff stayed on the vessel four more days until it docked in Galveston, Texas. He was then saw a local physician and returned to New Orleans to continue his medical treatment at Tulane Medical Center.
Plaintiffs original suit was filed against the M/V MORMACSTAR, MTC, and Crowley Marine Services, Inc. claiming damages under the Jones Act and General Maritime Law for the alleged unseaworthiness of the M/V MORMACSTAR. Crowley Marine Services, ("Crowley"), is the parent company that purchased MTC approximately two years ago.
On August 2, 2002 MTC answered suit denying any and all liability. On September 11, 2002, the United States District Court for the Southern District of Texas, sua sponte, transferred the subject litigation to the Eastern District of Louisiana. Plaintiff.
Plaintiff amended his original complaint on November 6, 2002 adding three defendants: Mormac Tankers, Inc. ("Mormac"), who has been identified through discovery as the owner of the M/V MORMACSTAR at the time of the incident; Marine Transport Lines, Inc. ("MTL"), a subsidiary of MTC, who has been identified through discovery as an entity with the decision-making authority as to maintenance and cure payments for plaintiff; and Marine Personnel and Provisioning, Inc. ("MPPI"), a subsidiary of MTC, who has been identified through discovery as the employer of plaintiff.
On April 2, 2003, this Court granted Crowley Marine Services' Motion for Summary Judgment, dismissing Crowley as a defendant. (Rec. doc. 49).
Plaintiff amended his complaint again on May 22, 2003, adding defendant Steamship Mutual Underwriting Association (Bermuda) Limited as well as asserting a claim for payment of maintenance and cure retroactive to July 8, 2001 and personal injury damages due to a worsening of physical and mental health because of defendants' refusal to timely pay maintenance and cure. (Rec. doc. 72).
From the date of plaintiff's accident, Mary Cervati, MTC's Vice-President for Marine Insurance, made determinations regarding his medical care and was in receipt of documents relating to his injury and claim. Defendant attaches her affidavit in support of its Motion for Summary Judgment. The following "Statement of Uncontested Material Facts" were taken from Cervati's affidavit:
1. On the date of the incident, July 8, 2001, the plaintiff was not employed by MTC and was employed by MPPI.
2. On July 8, 2001, the M/V MORMACSTAR was not owned by MTC and was owned by Mormac Tankers, Inc.
In opposition to the motion, plaintiff has submitted the entire transcript and all exhibits from the deposition of Cervati. Rec. doc. 60.
Plaintiff did not submit only relevant portion and exhibits of the deposition or otherwise aid the court in pinpointing what plaintiff believes is the pertinent information.
Plaintiff claims that the motion should be denied because the Cervati affidavit fails to address:
1. Issues related to MTC's liability as parent of the owner and operator of the vessel;
2. MTC as a named insured of the PI Marine Insurance coverage;
3. Issues of MTC's decision making process on maintenance and cure; and
4. Plaintiff's additional tort claim for injuries sustained because of delay in cure.
MTC has replied to plaintiffs opposition and contends that all of the above issues are irrelevant as MTC is neither the employer of plaintiff nor owner of the MN MORMACSTAR. Rec. doc. 66. For the following reasons, the Court agrees with MTC and GRANTS the Motion for Summary Judgment.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp v, Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
DISCUSSION
A. Summary Judgment on the Issue of Employer Liability Under the Jones Act
It is well settled that in order for a seamen to recover under the Jones Act, 46 U.S.C. § 688, against a particular entity, an employer-employee relationship is essential. Cosmopolitan v. McAllister, 337 U.S. 783, 790 (1949); Spinks v. Chevron Oil Company, 507 F.2d 216, 225 (5th Cir. 1975); Corsair v. Stapp Towing Co., Inc. 228 F. Supp.2d 795, 797 (S.D. Tex. 2002). For purposes of recovery, it may be possible to have more than one Jones Act employer. Hae Woo Youn v. Maritime Overseas Corporation, 605 So.2d 187, 200 (La. Appl. 5th Cir. 1992); Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 452 (5th Cir. 1980). Farther, the employer need not be the owner or operator of the vessel. Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157, 1164-1165 (5th Cir. 1972).
In determining who is an employer for recovery under the Jones Act, control is the critical inquiry. The Fifth Circuit has established that the "factors indicating control over an employee include payment, direction, and supervision of the employee. Also relevant is the source of the power to hire and fire." Volyrakis v. M/V Isabelle, 688 F.2d 863, 866 (5th Cir. 1982). Further, the Fifth Circuit has reasoned that "the control which is exercised must be substantial; the mere possibility of some control over the actions of an employee will not suffice to define an employer-employee relationship." Id. Similarly, the Fourth Circuit has said that among the factors to be considered are: the degree of control exercised over details of operation, the amount of supervision, the amount of investment in operation, the method of payment, and the parties' understanding of their relationship." Wheatley v. Gladden, 660, F.2d 1024 (1981). Finally, the court is instructed to look to the "venture as a whole" to determine whether an employer-employee relationship exists. Cosmopolitan, 337 U.S. at 795, Corsair, 228 F. Supp.2d at 798.
Using the above factors and assessing the available evidence, MTC is not plaintiffs Jones Act employer. The affidavit submitted by MTC as well as Cervati's deposition testimony unequivocally demonstrates that plaintiff was employed by MPPI. See Affidavit of Mary Cervati and Cervati Deposition, p. 52, 57. The wage vouchers show that plaintiff was paid by MPPI. See Cervati Deposition Exhibit No. 25. At the time of the incident, plaintiffs immediate supervisor was Bosun K.E. Gilyard, and Mr. Gilyard's immediate supervisor is Chief Mate John C. Norton. See Cervati Deposition Exhibit No. 1.
Cervati's involvement with plaintiffs claim stems from her role as claims manager for the related companies. The companies appear to be structured so that whenever a request for maintenance and cure arises from an employee of either MPPI or Mormac Tankers, Cervati is responsible for creating a file. See Cervati Deposition pp. 43, 53, and 55. While Cervati does create files for the maintenance and cure claims, she is not placing her company in a supervisory or employer role. Evidence shows that Cervati had to communicate with Jim Meyers, the Captain of the M/V MORMACSTAR in order to receive any information regarding plaintiffs injury (how it occurred, what a Butterworth tank is, how much shifting of the tanks was required, etc.). See Cervati Deposition Exhibit No. 21 which consists of e-mails between Cervati and the captain of the vessel and Cervati Deposition p. 193.
In support of their contention that MTC is plaintiff's Jones Act employer, plaintiff notes that virtually all of the medical claim and injury forms initially produced by defendants reference MTC or its subsidiary, Marine Transport Lines. However, the individual who received medical reports is not a determinative factor in determining plaintiffs employer, but may be taken into consideration. For example, in Hae Woo, the Court decided that the ship operator was the plaintiffs employer under the Jones Act because: the ship operator furnished the crew and said it was responsible for attending to all crew matters; members of the crew testified that the operator was their employer; the Captain testified that the crew was working "indirectly" for the operator; reports of plaintiff's injury were sent to the operator; and the contract between the operator and the vessel gave the operator "sole and exclusive" management of the vessel, including the power to hire and fire crew, prepare payroll, and otherwise conduct all business of the vessel. 605 F.2d 187 at 200. Receiving the medical reports and initial reports of injury are therefore only one of the many factors courts must consider.
Additionally, plaintiff's perception that MTC is his employer is not dispositive on the issue of MPPI's status as his employer. Evidently, plaintiffs counsel asked Cordova who he believes his employer is, and plaintiff responded that he does not recognize the name "MPPI," but he does recognize the names "MORMAC" and "Marine Transport" and would identify those names with his employer. See November 7, 2002 letter from Helen Babin to Michael McGlone in Cervati Deposition Exhibit No. 23. This evidence is not persuasive when weighed against deposition testimony and the documents MTC submitted showing that MPPI was listed on plaintiff's United States Coast Guard Certificates of Discharge (from previous journeys). See Cervati Deposition Exhibit No. 21.
This Court is well aware of case law that holding that if there appears to be more than one Jones Act employer, plaintiff may sue multiple entities because the plaintiff should not have to guess at his peril as to who is employer is. The Fifth Circuit has noted, "we see nothing offensive in suing an immediate employer under the Act, or even both employers in the alternative. The defendants can sort out which between them will bear the final cost of recovery, either through common law indemnity or contractual provisions . . ." Spinks, 507 F.2d 216 at 225; Allan v. Brown Root, 491 F. Supp. 398, 401 (5th Cir. 1980). However, these cases allowed claims to be asserted against multiple employers where 1) there was substance to the allegation that the plaintiff had more than one employer and 2) one of the alleged employers ostensibly qualified as an employer under the borrowed servant doctrine. Neither circumstance exists in this case.
Taking all of the above factors into consideration, on the face of the documents and testimony now present, it appears that MTC communicated with the master of the vessel and maintained the maintenance and cure claims. However, this is not the amount of control sufficient convince a trier of fact that an employer-employee relationship existed between MTC and Cordova. Simply because plaintiffs maintenance and cure claim was handled by MTC does not rise to the amount of control necessary to consider MTC an "employer" of plaintiff. Consequently, no genuine issue of material fact exists on the issue of MTC's status as the Jones Act employer of plaintiff. MTC is entitled to judgment as a matter of law as to this claim. Accordingly, this claim is dismissed with prejudice.
B. Summary Judgment on the Issue of Vessel's Unseaworthiness
A vessel owner has a non-delegable duty to provide a seaworthy vessel that is reasonably fit for its intended uses and is liable for the vessel's unseaworthiness. Bommarito v. Penrod Drilling Corp., 929 F.2d 186, 190 n. 2 (5th Cir. 1991).
Plaintiff claims that MTC may be the owner of the vessel and/or the owner, pro hac vice of the vessel. Plaintiff claims that MTC's status as a named insured on the PI marine insurance certificate as well as its status as parent of the owner of the vessel illustrates that it could be the owner or owner pro hac vice.
The owner pro hac vice of a vessel employs the crew and controls the vessel for the duration of the charter, thereby becoming the seamen's employer for purposes of Jones Act liability. Allan v. Brown Root, Inc., 491 F. Supp. 398, 401 (S.D. Tex. 1980). The owner pro hac vice of a vessel is also liable to an injured seaman under the doctrine of unseaworthiness. Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1342 (5th Cir. 1987). Factors indicating that an entity is the vessel owner pro hac vice are its exercise of control on behalf of the vessel owners and whether it shares in the profits of the ship's operation. McAleer v. Smith, 818 F. Supp. 486 (D.R.I. 1993).
Plaintiff has submitted no evidence that MTC, the parent corporation of the company that owns the vessel, is the owner pro hac vice or the owner of the vessel. In Allan, the court looked to whether an interrelated course of operations existed between the parent company and its subsidiary and whether the entity being sued was a mere paper creation or alter ego of its subsidiary. 401 F. Supp. 398, 401. Other than the existence of MTC's name on the P I insurance certificate and its status as parent, there is no evidence to create a genuine issue of material fact that MTC is the vessel owner. The mere existence as an assured on a P I policy is not evidence of ownership of the vessel, nor does it suggest that MTC had the requisite control to be the owner pro hoc vice. Plaintiff has not put forth a shred of evidence to support its allegation that MTC is the alter ego of the vessel owner or owner pro hac vice and therefore liable for the unseaworthiness of the vessel.
The Court therefore finds that there exists no genuine issue of material fact as to the question of MTC's liability for the unseaworthiness of the vessel. Accordingly, plaintiffs claim for unseaworthiness is dismissed with prejudice.
C. Summary Judgment on the Issue of General Maritime Law Negligence
A Jones Act seamen does not have a claim against his employer under general maritime law for negligence and must bring his claim under the Jones Act. See Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 525 (5th Cir. 1979); Rebstock v. Sonat Offshore Drilling, 764 F. Supp. 75 (E.D. La. 1991). Plaintiff has no basis to bring a claim for negligence under general maritime law against MTC and therefore the claim is dismissed with prejudice.
D. Summary Judgment on the Issue of Delay of Payment for Maintenance and Cure
Finally, MTC moves for summary judgment on plaintiffs claims for delay for payment of maintenance and cure, under general maritime law. Without citation to authority, MTC contends that because it is not the employer of plaintiff, it is not responsible for any claims dealing with maintenance and cure. Also, MTC argues that this responsibility falls on MPPI.
An employer-employee relationship must exist before a seaman may recover maintenance and cure. Corsair, 228 F. Supp.2d at 798; Smith v. Dale Hart, Inc., 313 F. Supp. 1164 (W.D. La. 1970). In determining who is an employer with respect to liability for maintenance and cure, the same criteria apply as to the determination of liability under the Jones Act. Solet v. M/V Capt. H. V. Dufrene, 303 F. Supp. 980 (E.D.La. 1969). Because the Court has already found that MTC is not Cordova's employer, it is therefore not liable for maintenance and cure payments.
Accordingly, MTC's motion for summary judgment as to this issue is granted.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment, Rec. Doc. 51, is hereby GRANTED and Cordova's claims against MTC are dismissed with prejudice.