Fairley v. Art Catering Inc et al

MOTION for Partial Summary Judgment

E.D. La.May 17, 2017

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARY FAIRLEY, Personal Representative * CIVIL ACTION of the late Ronnie Lee Fairley, * * NO. 16-3488 versus * * SECTION: “A” ART CATERING, INC. and * VANTAGE DEEPWATER DRILLING, INC. * MAGISTRATE: (4) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * MOTION FOR PARTIAL SUMMARY JUDGMENT NOW INTO COURT, through undersigned counsel, comes Mary Fairley (‘Plaintiff”), Personal Representative of the late Ronnie Fairley, who pursuant to Fed. R. Civ. P. 56, respectfully moves this Honorable Court for entry of partial summary judgment as follows: I. Jones Act issues: 1. That the late Ronnie Fairley was a Jones Act seaman; 2. That Art Catering, Inc., was the late Ronnie Fairley’s Jones Act employer; and 3. That the late Ronnie Fairley was “in the course and scope of his employment” aboard the D/S TITANIUM EXPLORER when he developed a gangrene-causing infection. II. General Maritime Law issues: 1. That the late Ronnie Fairley was “in the service of his ship” (i.e., the D/S TITANIUM EXPLORER) when he developed a gangrene-causing infection; and 2. That Art Catering, Inc., under the General Maritime Law, was/is obligated to pay cure for the late Ronnie Fairley. Page 1 of 2 Case 2:16-cv-03488-JCZ-KWR Document 24 Filed 05/17/17 Page 1 of 2 Respectfully submitted, /s/ Richard M. Martin, Jr. FRANK E. LAMOTHE, III, T.A., (#07495) RICHARD M. MARTIN, JR., (#08998) LAMOTHE LAW FIRM, LLC 400 Poydras Street, Suite 1760 New Orleans, LA 70130 Telephone: (504) 704-1414 Facsimile: (985) 249-6006 E-Mail: felamothe@lamothefirm.com rmartin@lamothefirm.com Attorneys for Plaintiff, Mary Fairley CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing pleading has this day been forwarded to the following counsel of record to this proceeding by electronic transmission, facsimile and/or by depositing same in the United States Postal Service, properly addressed and postage prepaid, this day of May, 2017. /s/ Richard M. Martin, Jr. RICHARD M. MARTIN JR. (#08998) Page 2 of 2 Case 2:16-cv-03488-JCZ-KWR Document 24 Filed 05/17/17 Page 2 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARY FAIRLEY, Personal Representative * CIVIL ACTION of the late Ronnie Lee Fairley, * * NO. 16-cv-3488 “A” (4) versus * * JUDGE ZAINEY ART CATERING, INC. and * VANTAGE DEEPWATER DRILLING, INC. * MAGISTRATE JUDGE ROBY * * * * * * * * * * * * * * * * * * * * * * * * * * * * * LOCAL RULE 56.1 STATEMENT OF MATERIAL FACTS AS TO WHICH PLAINTIFF CONTENDS PRESENT NO GENUINE ISSUE NOW INTO COURT, through undersigned counsel, comes the Plaintiff, Mary Fairley, Personal Representative of the late Ronnie Fairley, who pursuant to Eastern District of Louisiana Local Rule 56.1 submits the following statement of material facts as to which she contends there is no genuine issue. 1. Ronnie Fairley, was an eleven to twelve-year Art Catering, Inc., employee who from January 30, 2015 until August 7, 2015, was assigned to laundry worker duties aboard the D/S TITANIUM EXPLORER. 2. About two weeks before August 7, 2015, while aboard D/S TITANIUM EXPLORER, Ronnie Fairley began suffering from a right foot infection. 3. On August 7, 2015, Ronnie Fairley was flown ashore during a crew change. 4. On August 7, 2015, Ronnie Fairley traveled by bus from New Orleans, Louisiana to Shreveport, Louisiana. Page 1 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-1 Filed 05/17/17 Page 1 of 3 5. Upon arrival in Shreveport, Louisiana, Ronnie Fairley was driven to Minden Medical Center, at Minden, Louisiana, by his wife, Mary Fairley. 6. At Minden Medical Center on the night of August 7-8, 2015, Ronnie Fairley presented at the ER in tachycardia and tachypneic. 7. Ronnie Fairley was diagnosed with right foot gangrene, cellulitis of the foot, and sepsis. 8. Ronnie Fairley was hospitalized at Minden Medical Center from August 8, 2015 to August 20, 2015. 9. Part of Ronnie Fairley’s gangrenous right foot was amputated on August 9, 2015. 10. Ronnie Fairley subsequently had a heart attack, and when he stabilized, his MRSA infected right leg was amputated below the knee on August 14, 2015. 11. On August 20, 2015, Ronnie Fairley was transferred to Christus Highland Medical Center in Shreveport, Louisiana. 12. At this point in time, Ronnie Fairley had suffered from gangrene, MRSA septic emboli syndrome, acute respiratory distress syndrome, acute respiratory failure, chronic liver failure, atrial fibrillation, and a myocardial infarction. 13. On August 22, 2015, Ronnie Fairley died of acute septicemia. 14. Ronnie Fairley’s medical Minden Medical Center’s bills totaled $215,306.20, and his Christus Highland Medical Center’s bills totaled $46,525.68. Page 2 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-1 Filed 05/17/17 Page 2 of 3 Respectfully submitted, /s/ Richard M. Martin, Jr. FRANK E. LAMOTHE, III, T.A., (#07495) RICHARD M. MARTIN, JR., (#08998) LAMOTHE LAW FIRM, LLC 400 Poydras Street, Suite 1760 New Orleans, LA 70130 Telephone: (504) 704-1414 Facsimile: (985) 249-6006 E-Mail: felamothe@lamothefirm.com rmartin@lamothefirm.com Attorneys for Plaintiff, Mary Fairley Page 3 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-1 Filed 05/17/17 Page 3 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARY FAIRLEY, Personal Representative * CIVIL ACTION of the late Ronnie Lee Fairley, * * NO. 16-3488 versus * * SECTION: “A” ART CATERING, INC. and * VANTAGE DEEPWATER DRILLING, INC. * MAGISTRATE: (4) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT MAY IT PLEASE THE COURT: I. INTRODUCTION Mary Fairley (“Plaintiff”) seeks entry of partial summary judgment against Art Catering, Inc. (“Art”) on five issues related to the Jones Act and the General Maritime Law. There are three Jones Act issues. First, was the late Ronnie Fairley a Jones Act seaman? Second, was Art Catering, Inc., his Jones Act employer? Third, was the late Ronnie Fairley “in the course and scope” of his employment during the first week of August 2015, when he developed a foot infection which worsened into gangrene? There are also two General Maritime Law issues. First, was the late Ronnie Fairley “in the service of his ship” when he developed a foot infection during the first week of August 2015.1 Second, if so, does Art have an obligation to pay “cure” for the August 8 - 22, 2015 hospitalization which was a consequence of the infection? 1Logically, resolving the Jones Act “in the course and scope of his employment” issue in Plaintiff’s favor also means resolving the General Maritime Law “in the service of his ship” issue in Plaintiff’s favor, thus imposing upon Art Catering, Inc., an obligation to pay “cure.” Page 1 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 1 of 14 II. RELEVANT FACTS Ronnie Fairley, was an eleven to twelve year Art Catering, Inc., employee2 who from January 30, 2015 until August 7, 2015, was assigned to duties aboard the D/S TITANIUM EXPLORER3 where he worked as a laundry attendant.4 About two weeks before August 7, 2015, when he was flown ashore during a crew change, Ronnie Fairley began suffering from a foot infection which worsened with swelling. He passed out at work, but continued to work although feeling worse.5 He was diagnosed at Minden Medical Center with right foot gangrene, cellulitis of the foot, and sepsis.6 He presented at the ER in tachycardia and tachypneic.7 He was hospitalized at Minden Medical Center from August 8, 2015 to August 20, 2015. Part of his gangrenous right foot was amputated on August 9, 2015, then he had a heart attack, and when he stabilized his MRSA infected leg was amputated below the knee on August 14, 2015.8 2See Exhibit “A,” p. 36 from Mary Fairley’s December 9, 2016 deposition. 3See Exhibit “B” in globo which shows the dates of Mr. Fairley’s assignment. 4Id. 5See Exhibit “C,” the Minden Medical Center’s patient History and Physical . 6“Sepsis,” also commonly referred to as septicemia or blood poisoning, is a life- threatening condition that arises when the body's response to infection causes injury to its own tissues and organs. Common signs and symptoms include fever, increased heart rate, increased breathing rate, and confusion. 7See Exhibit “C.” “Tachycardia” is a heartbeat that's too fast, a heart rate of more than 100 beats per minute. “Tachypneic” is very rapid respirations, seen especially in high fever when the body attempts to rid itself of excess heat. 8See Exhibit “D,” Minden Medical Center Operative Report. Page 2 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 2 of 14 On August 20, 2015, he was moved to Christus Highland Medical Center in Shreveport for dialysis. At this point, he’d already suffered gangrene, MRSA septic emboli syndrome, acute respiratory distress syndrome, acute respiratory failure, chronic liver failure, atrial fibrillation, and a myocardial infarction.9 The dialysis failed, and on August 22, 2015, Mr. Fairley died of acute septicemia on August 22, 2015.10 Art Catering, Inc., did not pay “cure” for this hospitalization period. Instead, Blue Cross - Blue Shield of Louisiana, paid medical bills which totaled $261,831.88.11 Minden Medical Center’s bills total $215,306.20, and Christus Highland Medical Center’s bills total $ 46,525.68. III. SUMMARY JUDGMENT STANDARDS A. When entry of summary judgment is appropriate. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.12 It is warranted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue of material fact and movant is entitled to judgment as a matter of law.”13 When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the 9See Exhibit “E,” the Christus Schumpert Admission History and Physical. 10See Exhibit “F” the Christus Schumpert Hospital Death Summary. 11See Exhibits “G” and “H.” 12See Fed. R. Civ. P. 56 ©. 13Celotex v. Catrett, 477 U.S. 317, 322 (1986). Page 3 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 3 of 14 evidence.”14 A court must be satisfied that no reasonable trier of fact could find for the non-moving party or “that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict.”15 B. Plaintiff’s burden of proof. The party moving for summary judgment bears the initial burden 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.16 The non-movant must then present “specific facts showing there is a genuine issue for trial.”17 The materiality of facts depends on the substantive law and “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”18 Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are tasks for the trier of fact.19 14Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.. 2008). 15Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 16Celotex, 477 U.S. at 323. 17Fed. R. Civ. P. 56 (e); Celtic Marine Corp. V. James C. Justice Companies, Inc., 760 F.3d 477, 481 (5th Cir. 2014). 18Anderson, 477 U.S. at 248. 19Id. Page 4 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 4 of 14 C. Art Catering, Inc.’s burden in response. Under Fed. R. Civ. P. 56c, the moving party bears the initial burden 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.”20 When the moving party has met it Rule 56© burden, “[t]he non-movant cannot avoid summary judgment ... by merely making ‘conclusory allegations’ or ‘unsubstantiated assertions.’” 21 To defeat summary judgment, conclusory allegations, unsubstantiated assertions, or “only a scintilla of evidence” will not suffice.22 IV. JONES ACT ISSUES A. Employment-related connection to a vessel in navigation. To demonstrate Jones Act seaman status, a plaintiff must show an "employment-related connection to a vessel in navigation."23 This has two basic elements: (1) Claimant's duties must contribute to the function of the vessel or to the accomplishment of its mission; and (2) Claimant’s connection to the vessel in navigation must be substantial in terms of both its duration and its nature.24 20Celotex, 477 U.S. at 322. 21Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002)(quoti ng Little, 37 F.3d at 1075). 22Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). 23Chandris Inc. v. Latsis, 515 U.S. 347, 368-72, 115 S.Ct. 2172, 2189-91, 132 L.Ed.2d 314 (1995). 24Chandris, 515 U.S. at 368-69, 115 S.Ct. at 2189-90. Page 5 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 5 of 14 The existence of a vessel to which the employee is connected is also a fundamental prerequisite to a Jones Act claim.25 Nowhere does Art Catering, Inc., deny that Ronnie Fairley was its employee, or that at all times relevant he was assigned to laundry duties aboard Vantage Deepwater Drilling, Inc.’s (“Vantage”) vessel D/S TITANIUM EXPLORER which contributed to the mission of the vessel.26 It is undisputed that this ship-hulled drilling vessel27 was in navigation on the waters of the Gulf of Mexico adjacent to the Eastern District of Louisiana. A "vessel" traditionally refers to structures designed or utilized for "transportation of passengers, cargo or equipment from place to place across navigable waters."28 This is consistent with the statutory definition which defines the word "vessel" as including "every description of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water."29 While the determination of whether a given craft is a vessel is ordinarily resolved as a matter of law, this issue is also resolved here because special purpose structures such as jack-up rigs, mobile, submersible drilling barges, derrick barges, spud barges, and others are vessels as a matter of law.30 25Burchett v. Cargill, Inc., 48 F.3d 173, 176 (5th Cir.1995). 26See Exhibit “B” which shows assignment to the vessel’s laundry service. 27See Exhibit “I,” a photograph of D/S TITANIUM EXPLORER. 28Cook v. Belden Concrete Prods., 472 F.2d 999, 1002 (5th Cir.1973); see also Bernard v. Binnings Constr. Co., Inc., 741 F.2d 824, 828-29 (5th Cir.1984); 1B BENEDICT ON ADMIRALTY § 11a, at 2-7 (7th ed. rev.1996); GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY § 1-11, at 33 (2d ed.1975). 291 U.S.C. § 3. 30See, e.g., Mouton v. Tug "Ironworker", 811 F.2d 946 (5th Cir.1987); Guidry v. Continental Oil Co., 640 F.2d 523 (5th Cir.1981); Hicks v. Ocean Drilling and Exploration Co., Page 6 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 6 of 14 B. Vessel ownership versus Plaintiff’s employer: But what about the fact that Art Catering, Inc., was Ronnie Fairley’s direct employer, while another entity, Vantage, owned the D/S TITANIUM EXPLORER?31 Does that matter? No, the law in the Fifth Circuit is clear: the Jones Act employer (i.e., Art Catering, Inc.) need not be the owner or the operator of the vessel to which the seaman is assigned.32 The Jones Act defendant can even be a land-based employer like Art Catering, Inc.33 C. Conclusion regarding Plaintiff’s Jones Act seaman status: As Judge John Minor Wisdom noted, “The Jones Act is remedial legislation ..... extending to seamen the rights accorded railway workers under the Federal Employers' Liability Act.”34 As such, it should be liberally construed in favor of injured seamen.”35 Here, the D/S TITANIUM EXPLORER was a drilling vessel, its mission was drilling for oil and/or gas, and Ronnie Fairley had been assigned to her crew as a laundry worker for seven months.36 He meets both parts of the Chandris test, and is clearly a Jones Act seaman. Defendants admit the D/S TITANIUM 512 F.2d 817 (5th Cir.1975); Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir.1966). 31See ¶ 7 of the Defendants’ Answer, Affirmative Defenses, and Third-Party Demand (Rec. Doc. 10) where Art admits is employed Ronnie Fairley, and ¶ 9 where Vantage admits it owned the vessel. 32Yelverton v. Mobile Laboratories, Inc., 608 F.Supp. 400 (S.D. Miss 1985), affirmed, 782 F.2d 555 (5th Cir. 1986); Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972). 33Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165 (2nd Cir. 1973). 3445 U.S.C. §51, et seq. 35 Spinks v. Chevron Oil Co., 507 F.2d 216, 224 (5th Cir. 1975), citing Cortes v. Baltimore Insular Line, 287 U.S. 367, 375, 53 S.Ct. 173, 175, 77 L.Ed. 368, 373 (1932). 36See Exhibit “B.” Page 7 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 7 of 14 EXPLORER was a vessel, and documents from Mr. Fairley’s personnel file that were produced by Art Catering, Inc., show his long-term assignment to that vessel. The Court should grant partial summary judgment in Plaintiff’s favor on the first two Jones Act issues: Ronnie Fairley was a Jones Act seaman and Art Catering, Inc.’s was his Jones Act employer. D. Plaintiff was in the “course and scope” of employment when he fell ill. The third Jones Act-related issue is whether Ronnie Fairley was in the “course and scope of his employment” when he fell ill. Despite the fact that Ronnie Fairley already had a serious infection and gangrene when he arrived at Minden Medical Center (the same day he departed the D/S TITANIUM EXPLORER), Defendants deny that Mr. Fairley was in the “course and scope of his employment.”37 How is this possible under the facts?38 By its terms, the Jones Act allows recovery for a seaman’s personal injury suffered “in the course and scope of employment.”39 The Act provides: “A seaman injured in the course of his employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.”40 37See Third Affirmative Defense in Defendants’ Answer, Affirmative Defenses, and Third-Party Demand (Rec. Doc. 10) where they state: “Defendants aver that the plaintiff was not injured in the service of any vessel owned and/or operated by defendants.” 38Plaintiff is not seeking a ruling on Jones Act negligence in this motion. She is only attempting to establish status, i.e., whether, at all times relevant, her late husband was in the course and scope of his employment aboard D/S Titanium Explorer. 39 See 46 U.S.C. § 30104. 40 See 45 U.S.C. § 51. Page 8 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 8 of 14 The right of recovery as a seaman under the Jones Act does not depend "on the place where the injury is inflicted, but on the nature of the service and its relationship to the operation of the vessel plying in navigable waters."41 Here, Mr. Fairley got sick while working aboard the D/S/ TITANIUM EXPLORER. A seaman can even be “in the course and scope of his employment” when he is injured on shore performing temporary duties at the request of his employer.42 Even when a seaman is home on shore leave, he may be considered in the “course and scope” of his employment.43 Plaintiff further suggests that an injured seaman, who goes directly from the vessel to a hospital, does not cease being “in the course and scope of his employment.” V. GENERAL MARITIME LAW ISSUES There are two General Maritime Law issues. The first issue is a threshold issue which will determine the second. First, was Plaintiff “in the service of his ship” when he fell ill? If he was, then the second issue, whether Art Catering, Inc., was obligated to pay “cure,” is resolved in the affirmative. A. Ronnie Fairley was “in the service of the ship” when he fell ill. In order to recover maintenance and cure, the seaman must prove that he suffered illness or injury or that his disability was aggravated or became manifest while he was “in the service of the 41Magnolia Towing Company v. Pace, 378 F.2d 12, 13 (5th. Cir., 1967), citing O'Donnell v. Great Lakes Dredge & Dock Co., 1943, 318 U.S. 36, 42, 43, 63 S.Ct. 488, 492, 87 L.Ed. 596; Braen v. Pfeifer Oil Transportation Co., 1959, 361 U.S. 129, 131, 80 S.Ct. 247, 4 L.Ed.2d 191; and Hopson v. Texaco, Inc., 1966, 383 U.S. 262, 86 S.Ct. 765, 15 L.Ed.2d 740. 42Rannals v. Diamond Jo Casino, 265 F.3d 442 (6th Cir. 2001); Smith v. Odoms Offshore Surveys, Inc., 791 F.2d 411 (5th Cir. 1986). 43Daughenbaugh v. Bethlehem Steel Corp., 881 F.2d 1199 (6th Cir. 1989); Allen v. Brown & Root, Inc., 491 F.Supp. 392 (S.D. Tex. 1980). Page 9 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 9 of 14 vessel.”44 A seaman will be considered “in the service of his vessel” if he is at a location for the convenience of his employer at the time of the injury.45 There is no reasonable argument anyone can make that Ronnie Fairley was not aboard the D/S TITANIUM EXPLORER for Art Catering, Inc.’s convenience, or that he fell ill before the August 7, 2015 crew change. The facts are clear and beyond dispute. Ronnie Fairley “presented” with right foot gangrene upon arrival at Minden Medical Center the day he left the vessel. An MRSA infection causing gangrene severe enough to require an immediate amputation does not occur spontaneously. It requires time to develop. Less than 24 hours before Mr. Fairley arrived at the hospital, he was aboard D/S TITANIUM EXPLORER. Thus, he fell ill while “in the service of the vessel.” This fact is readily confirmed by Minden Medical Center’s History and Physical46 record which states that his illness began 2 weeks earlier, when he was aboard the vessel: “62 y/o male with a foot wound on the right foot for about 2 weeks. He has been working and ambulatory on it. It got worse with swelling and warmth. He passed out at work a week earlier, had continued to work. Began to feel worse. Presented to the ER tachycardic, tachypneic. Has been febrile.”47 (Emphasis supplied.) 44Miller v. Lykes Bros. - Ripley S.S. Co., 98 F.2d 185 (5th Cir. 1938); Patterson v. Rio Grand Transp., Inc., 1977 A.M.C. 1464 (M.D. La. 1976). 45Archer v. Trans/American Services, Ltd., 834 F.2d 1570, 1575 (11th Cir. 1988); Smith v. United States, 167 F.2d 550 (4th Cir. 1948). 46See Exhibit “C.” 47The History and Physical’s Assessment, at page 2, further documents Mr. Fairley’s condition upon arrival at the ER. It states in pertinent part: “1. Gangrene of the right foot with cellulitis and sepsis ..... likely urgent amputation” and “3. Elevated liver functions, likely Page 10 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 10 of 14 B. Conclusion regarding Ronnie Fairley being “in the service of the vessel.” Mr. Fairley was “in the course and scope of his employment” for Jones Act purposes, and also “in the service of his vessel” for General Maritime Law maintenance and cure purposes. The legal test for purposes of maintenance and cure is the same as that established for determining status under the Jones Act.48 Accordingly, this Court should enter partial summary judgment in Plaintiff’s favor on the General Maritime Law “in the service of the vessel” issue. C. Art’s obligation to pay maintenance and cure, and unearned wages. “The obligation of a shipowner who employs seamen to care for them if they are injured or become ill is of ancient vintage. This duty appears in the medieval sea codes and is undoubtable of earlier origin.”49 “Maintenance” is the right of a seaman to food and lodging if he falls ill while in the service of the ship.50 Likewise, “cure” is the right to necessary medical services.51 Both extend to the point of “maximum recovery.” The seaman also has a right to be paid unearned wages for the period from the onset of the injury or illness to the end of the voyage.52 secondary to his sepsis...” 48Hall v. Diamond M. Co., 732 F.2d 1246 (5th Cir. 1984). 49Shields, Seaman’s Rights to Recover Maintenance and Cure Benefits, 55 Tul.L.Rev. 1046 (1981). 50Calmar S.S. Corp. V. Taylor, 303 U.S. 525, 527, 58 S.Ct. 651, 653, 82 L.Ed. 993 (1938). 51Moran Towing and Transportation Co. v. Lombas, 58 F.3d 24 (2nd Cir. 1995). 52Gardiner v. Sea-Land Service, Inc., 786 F.2d 943 (9th Cir. 1986); Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949). Page 11 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 11 of 14 The duty of payment is imposed on a seaman’s employer,53 and the determination of who is the seaman’s employer for the purpose of claiming maintenance and cure is the same as for liability under the Jones Act.54 Critically, the duty to provide maintenance and cure is without regard to fault, and negligence and causation are not relevant.55 This last point is really important because [while] comparative fault might reduce or preclude a Jones Act negligence claim recovery, it has no bearing whatsoever on payment of maintenance and cure under the General Maritime Law. Thus, the negligence and/or fault issues presented in the Defendants’ Second, Fifth, Sixth, Seventh, and Ninth Affirmative Defenses are entirely irrelevant to the maintenance and cure issue.56 D. Conclusion regarding Art’s obligation to pay maintenance and cure. Here, there is no doubt that Mr. Fairley was “in the course and scope of his employment” for Jones Act purposes, and “in the service of his vessel” for maintenance and cure purposes. Thus, the Court should enter partial summary judgment that Art Catering, Inc., is liable for the payment of maintenance and cure. In particular, that means paying Mr. Fairley’s hospital bills. VI. CONCLUSION The Jones Act allows recovery for a seaman’s personal injury suffered “in the course of his 53Morales v. Garijak, 829 F.2d 1355 (5th Cir. 1987). 54Hall, 732 F.2d at 1248; Stokes v. B.T. Oilfield Services, Inc., 617 F.2d 1205, 1206 (5th Cir.1980). 55Pacific S.S. Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 77, 73 L.Ed. 220 (1928). 56See Defendants’ August 15, 2016 Answer, Affirmative Defenses, and Third Party Demand (Rec. Doc. 10). There, Defendants presented the defenses of Ronnie Fairley’s sole or contributory negligence, willful misconduct, failure to mitigate damages, and misconduct of third-parties. Page 12 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 12 of 14 employment.”57 “Course of employment” used in the Jones Act is the same as “service of the ship” used in maintenance and cure cases.58 A seaman injured in the “service of a ship” is owned maintenance and cure.59 Here, Mr. Fairley was assigned to laundry duties aboard D/S/ TITANIUM EXPLORER when he fell ill. He was a Jones Act seaman “in the course and scope of his employment.” Art Catering, Inc., was his Jones Act employer. “In the course and scope of employment” is legally synonymous with being “in the service of the vessel” for purposes of maintenance and cure.60 As such, regardless of fault or any Jones Act issues, Art Catering, Inc., was obliged to pay hospital bills totaling $261,831.88.61 Plaintiff suggests that the Court should enter partial summary judgment against Art, finding that: 1. Ronnie Fairley was a Jones Act seaman; 2. Art Catering Inc., was Ronnie Fairley’s Jones Act employer; 3. Ronnie Fairley was “in the course and scope of his employment” aboard the D/S TITANIUM EXPLORER when he developed a gangrene-causing infection; 57O’Donnell v. Great Lakes Dredge and Dock Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596 (1943). 58See, e.g., Daughdrill v. Diamond M. Drilling Co., 447 F.2d 781 (5th Cir. 1971), cert. denied, 405 U.S. 997 (1972). 59Guevara v. Maintenance Overseas Corp., 59 F.3d 1496 (5th Cir. 1995) (en banc), cert. denied, 516 U.S. 1046 (1996). 60Hall, 732 F.2d at 1248; Stokes v. B.T. Oilfield Services, Inc., 617 F.2d 1205, 1206 (5th Cir.1980). 61See Exhibits “G” and “H.” Page 13 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 13 of 14 4. When Ronnie Fairley developed a gangrene-causing infection while aboard the D/S TITANIUM EXPLORER, he was “in the service of his ship”; and 5. Art Catering, Inc., was/is obligated under the General Maritime Law to pay maintenance and cure to Plaintiff, the Personal Representative of the late Ronnie Fairley, including particularly his August 8, 2015 to August 22, 2015 hospital bills which total $261,831.88. Respectfully submitted, /s/ Richard M. Martin, Jr. FRANK E. LAMOTHE, III, T.A., (#07495) RICHARD M. MARTIN, JR., (#08998) LAMOTHE LAW FIRM, LLC 400 Poydras Street, Suite 1760 New Orleans, LA 70130 Telephone: (504) 704-1414 Facsimile: (985) 249-6006 E-Mail: felamothe@lamothefirm.com rmartin@lamothefirm.com Attorneys for Plaintiff, Mary Fairley Page 14 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-2 Filed 05/17/17 Page 14 of 14 Case 2:16-cv-03488-JCZ-KWR Document 24-3 Filed 05/17/17 Page 1 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-3 Filed 05/17/17 Page 2 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-3 Filed 05/17/17 Page 3 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-4 Filed 05/17/17 Page 1 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-4 Filed 05/17/17 Page 2 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-4 Filed 05/17/17 Page 3 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-5 Filed 05/17/17 Page 1 of 4 Case 2:16-cv-03488-JCZ-KWR Document 24-5 Filed 05/17/17 Page 2 of 4 Case 2:16-cv-03488-JCZ-KWR Document 24-5 Filed 05/17/17 Page 3 of 4 Case 2:16-cv-03488-JCZ-KWR Document 24-5 Filed 05/17/17 Page 4 of 4 Case 2:16-cv-03488-JCZ-KWR Document 24-6 Filed 05/17/17 Page 1 of 5 Case 2:16-cv-03488-JCZ-KWR Document 24-6 Filed 05/17/17 Page 2 of 5 Case 2:16-cv-03488-JCZ-KWR Document 24-6 Filed 05/17/17 Page 3 of 5 Case 2:16-cv-03488-JCZ-KWR Document 24-6 Filed 05/17/17 Page 4 of 5 Case 2:16-cv-03488-JCZ-KWR Document 24-6 Filed 05/17/17 Page 5 of 5 Case 2:16-cv-03488-JCZ-KWR Document 24-7 Filed 05/17/17 Page 1 of 4 Case 2:16-cv-03488-JCZ-KWR Document 24-7 Filed 05/17/17 Page 2 of 4 Case 2:16-cv-03488-JCZ-KWR Document 24-7 Filed 05/17/17 Page 3 of 4 Case 2:16-cv-03488-JCZ-KWR Document 24-7 Filed 05/17/17 Page 4 of 4 Case 2:16-cv-03488-JCZ-KWR Document 24-8 Filed 05/17/17 Page 1 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-8 Filed 05/17/17 Page 2 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-8 Filed 05/17/17 Page 3 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-9 Filed 05/17/17 Page 1 of 2 Case 2:16-cv-03488-JCZ-KWR Document 24-9 Filed 05/17/17 Page 2 of 2 Case 2:16-cv-03488-JCZ-KWR Document 24-10 Filed 05/17/17 Page 1 of 9 Case 2:16-cv-03488-JCZ-KWR Document 24-10 Filed 05/17/17 Page 2 of 9 Case 2:16-cv-03488-JCZ-KWR Document 24-10 Filed 05/17/17 Page 3 of 9 Case 2:16-cv-03488-JCZ-KWR Document 24-10 Filed 05/17/17 Page 4 of 9 Case 2:16-cv-03488-JCZ-KWR Document 24-10 Filed 05/17/17 Page 5 of 9 Case 2:16-cv-03488-JCZ-KWR Document 24-10 Filed 05/17/17 Page 6 of 9 Case 2:16-cv-03488-JCZ-KWR Document 24-10 Filed 05/17/17 Page 7 of 9 Case 2:16-cv-03488-JCZ-KWR Document 24-10 Filed 05/17/17 Page 8 of 9 Case 2:16-cv-03488-JCZ-KWR Document 24-10 Filed 05/17/17 Page 9 of 9 Case 2:16-cv-03488-JCZ-KWR Document 24-11 Filed 05/17/17 Page 1 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-11 Filed 05/17/17 Page 2 of 3 Case 2:16-cv-03488-JCZ-KWR Document 24-11 Filed 05/17/17 Page 3 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARY FAIRLEY, Personal Representative * CIVIL ACTION of the late Ronnie Lee Fairley, * * NO. 16-cv-3488 “A” (4) versus * * JUDGE ZAINEY ART CATERING, INC. and * VANTAGE DEEPWATER DRILLING, INC. * MAGISTRATE JUDGE ROBY * * * * * * * * * * * * * * * * * * * * * * * * * * * * * NOTICE OF SUBMISSION PLEASE TAKE NOTICE that Plaintiff, Mary Fairley, Personal Representative of trhe late Ronnie Fairley, has submitted the attached “Motion for Partial Summary Judgment” to be decided by The Honorable Jay C. Zainey, United States District Judge for the Eastern District of Louisiana, 500 Camp Street, New Orleans, Louisiana, on the Court's regular motion docket on Wednesday, June 14, 2017, at 9:00 o’clock a.m. Plaintiff has not requested oral argument on this motion. Thus, in accordance with Local Rule 78.1, unless oral argument is requested by another party and allowed by the Court, this motion will be decided on the basis of the record, including timely filed briefs and any supporting or opposing documents filed therewith. Respectfully submitted, /s/ Richard M. Martin, Jr. FRANK E. LAMOTHE, III, T.A., (#07495) RICHARD M. MARTIN, JR., (#08998) LAMOTHE LAW FIRM, LLC 400 Poydras Street, Suite 1760 New Orleans, LA 70130 Telephone: (504) 704-1414 Facsimile: (985) 249-6006 E-Mail: felamothe@lamothefirm.com rmartin@lamothefirm.com Attorneys for Plaintiff, Mary Fairley Case 2:16-cv-03488-JCZ-KWR Document 24-12 Filed 05/17/17 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARY FAIRLEY, Personal Representative * CIVIL ACTION of the late Ronnie Lee Fairley, * * NO. 16-cv-3488 “A” (4) versus * * JUDGE ZAINEY ART CATERING, INC. and * VANTAGE DEEPWATER DRILLING, INC. * MAGISTRATE JUDGE ROBY ******************************************* ORDER GRANTING PARTIAL SUMMARY JUDGMENT Considering the above and foregoing Motion; IT IS ORDERED, pursuant to Fed. R. Civ. P. 56, that partial summary judgment be and hereby is GRANTED in favor or Plaintiff, Mary Fairley, Personal Representative of the late Ronnie Fairley, as follows: I. Jones Act issues: 1. Ronnie Fairley was a Jones Act seaman; 2. Art Catering, Inc., was Ronnie Fairley’s Jones Act employer; and 3. Ronnie Fairley was “in the course and scope” of his Jones Act employment when he developed a foot infection sometime during the two-week time period prior to August 7, 2015. II. General Maritime Law issues: 1. Ronnie Fairley was “in the service of his ship” when he developed a foot infection sometime during the two-week time period prior to August 7, 2015; and Page 1 of 2 Case 2:16-cv-03488-JCZ-KWR Document 24-13 Filed 05/17/17 Page 1 of 2 2. Art Catering, Inc., under the General Maritime Law, was/is obligated to pay maintenance and cure on the behalf of Ronnie Fairley. New Orleans, Louisiana, this day of , 2017. ________________________________________________ UNITED STATES DISTRICT JUDGE Page 2 of 2 Case 2:16-cv-03488-JCZ-KWR Document 24-13 Filed 05/17/17 Page 2 of 2