Archive for March, 2011

The United States District Court for the Northern District of Indiana recently heard a Motion to Reconsider, filed by Trump Casino, and a Motion For Summary Judgment, filed by the plaintiff in the case of Rodriguez v. Trump Casino (2011). The court rejected each of the party’s motions, leaving numerous issues to be determined at trial.

In this case, the plaintiff, Rodriguez, had been working as a card dealer aboard a gaming boat owned by Trump Casino. Following her shift, Rodriguez walked to the employee break area, which was located in an on-shore pavilion to catch a shuttle-bus to the employee parking lot. As she was walking through the pavilion, she slipped and fell on a tacky substance on the floor, which caused her to sustain an injury to her ankle.

Rodriquez filed a Jones Act injury claim for the injuries that she sustained to her ankle in the fall. After analyzing the case, the Indiana District Court found that there were several issues that would either need to be decided at trial or settled out of court. The first issue in the Jones Act injury case regarded whether Trump Casino had actual or constructive notice that a dangerous condition, the sticky substance, existed on the floor of the pavilion. This issue is essential for making a determination as to whether or not Trump Casino may be found negligent for purposes of the plaintiff’s Jones Act injury.

The second issue that was left for the court to decide at trial was whether Rodriquez was a Jones Act “seaman” who sustained an injury in the course of her employment as required for a Jones Act injury claim. This point is at issue because Rodriguez was off duty and off the ship on which she worked at the time that she sustained her injury. The parties will be required to move forward with the case by going to trial or disposing of the case through settlement negotiations.

 

The Outer Continental Shelf Lands Act (OSCLA) provides a cause of action for damages and compensation to employees who sustain offshore injuries while working on the Outer Continental Shelf. Commonly, the Act covers offshore injuries that occur as a result of operations conducted for the purpose of exploring, developing, removing or transporting natural resources from the Outer Continental Shelf. 43 U.S.C.A. § 1333(b).

The courts have established a two prong-test for establishing claims for offshore injuries under the OSCLA. The test has been used in a number of claims involving offshore injuries such as Recar v. CNG Producing Co., 853 F.2d 367 (5th Cir. 1988) and was most recently discussed in Barker v. Hercules Offshore, Inc., Dist. Court, SD Texas (2011). The first prong of the test requires that “the worker’s employment furthers mineral development on the Outer Continental Shelf” and the second prong requires that “the worker’s injury would not have occurred ‘but for’ his employment” on the Outer Continental Shelf.

To demonstrate the application of the two-prong test for establishing an OSCLA claim, we can look to the facts of Recar v. CNG Co. In that case, a platform worker was injured when the rope that he was swinging from broke causing him to fall onto the deck of a transport vessel. The court found that this scenario met both of the prongs of the OSCLA claim test since the worker’s employment position involved the furtherance of mineral development on the Outer Continental Shelf and his injury was directly related to his job duties.

The OSCLA is only one of a number of statutes that provide for compensation for offshore injuries. If you are a maritime worker and become injured on the job, you should contact an experienced maritime attorney who can evaluate your case and determine whether you have a claim under one of the maritime worker protection statutes.

 

Maritime employers owe several duties to the seamen who work aboard their ships.  For example, employers must provide a safe working and living environment for their crew in an effort to avoid maritime injuries. If they fail to do so, they may be found negligent under the Jones Act or liable under the warranty of seaworthiness for any maritime injuries that occur as a result of breaching their duty.

Under the maritime rescue doctrine, shipowners and maritime employers also have a duty to rescue seamen who fall overboard into the water. The purpose of this doctrine is to prevent maritime injuries and deaths. In the case of Keyes v. Vantage SS Co., Inc., 609 F.2d 140 (5th Cir. 1980) a crewmember jumped off the side of a vessel and into the water after imbibing a large quantity of alcohol. Even though is was apparent that the seaman was in danger, no effort was made by either the crewmembers or the officers on the ship to rescue him. After struggling against the current for several minutes, the seaman drowned. His family brought an action in court against the deceased seaman’s employer.

The court held that the deceased seaman’s employer was liable for failing to follow the maritime rescue doctrine. The doctrine requires the ship’s officers to rescue seamen who fall overboard from a ship and to effect a search of the area traversed by the ship if the location of the seaman is unknown so long as it is reasonably possible that the seaman remains alive in the water. Employers who fail to make an attempt to rescue a distressed seaman may be held liable for any resulting maritime injuries or deaths.

 

Under the Jones Act, shipowners and maritime employers have a duty to provide a safe environment for seamen to live and work. Part of that duty requires the shipowner or the employer to provide adequate medical treatment to a maritime employee who sustains a Jones Act injury in the course of performing his or her job duties.

There are generally two distinct ways that a shipowner can violate his duty to provide prompt and adequate medical care for a seaman with a Jones Act injury. The first occurs when a shipowner fails to get an injured seaman to a doctor when it is reasonably necessary to do so. The second type of violation may occur is the shipowner selects a doctor or physician who negligently treats the employee. Olsen v. American SS Co., 176 F.3d 891 (6th Cir. 1999).

In the case of De Centeno v. Gulf Fleet Crews, 798 F.2d 138 (1986), a seaman fell ill while working an a vessel. The shipowner arranged to have the seaman visit a local physician who treated the seaman for influenza. The seaman returned to work on his ship immediately following the doctor’s treatment. Over the course of the next few days, the seaman’s health deteriorated rapidly. The seaman subsequently sought medical treatment from a different physician who diagnosed him with diabetes.

Due to his weakened condition, the seaman developed an acute case of diarrhea with strong stomach cramps and vomiting after ingesting bacteria from the local water supply. The seaman then developed an infection, which led to the seaman’s death. The seaman’s surviving widow and three minor children sought damages for the deceased seaman’s Jones Act injury and death.  The court found the seaman’s employer liable for failing to provide adequate medical care and treatment for the seaman’s Jones Act injury.

 

Louisiana Jones Act lawyers recently opposed a summary judgment motion filed on behalf of a maritime employer who was attempting to evade liability for a seaman’s Jones Act claim. In the case of Williamson v. Hercules Offshore, Inc., United States District Court, E.D. Louisiana, an electrician was injured while working aboard a jack-up rig owned by Hercules Offshore, Inc. Following his injury, the electrician filed a Jones Act claim for negligence and unseaworthiness under the general maritime law in the Louisiana District Court.

Following the plaintiff-electrician’s claim, the defendant-employer filed a motion for summary judgment claiming that the rig that the plaintiff was working on was seaworthy and that the plaintiff’s own negligence was the sole cause of the accident that caused his injuries. If a summary judgment motion is granted by the court, the case will be disposed of unless it is appealed by the defeated party to a higher court. Louisiana Jones Act lawyers are familiar with this tactical practice, which is often used by defendants in maritime cases.

Louisiana Jones Act lawyers understand that in order for a summary judgment motion to be granted, the court must find that there is “no genuine issue as to any material fact” after reviewing all of the pleadings, discovery and disclosure materials that have been submitted in the case. Stults v. Conoco, 76 F.3d 651 (5th Cir. 1996). Essentially, the party who filed the motion must show that the opposing party does not have a legal or factual basis to support their case.

In the present case, the court found that it was unclear as to whether the defendant’s ship was seaworthy and whether the plaintiff was actually negligent in performing his job duties. The Louisiana Jones Act lawyers for the plaintiff argued that these are the types of questions that must be decided by the court at trial. The court agree and denied the defendant’s summary judgment motion. If you have been injured in a maritime accident, you should consult with the Louisiana Jones Act lawyers in your area to determine your rights and options under the law.

 

Many maritime claims and offshore settlements are the direct result of an employer’s breach of the warranty of seaworthiness. The courts have held that maritime employers have an absolute duty to provide a seaworthy vessel. A vessel is considered seaworthy if it is sufficiently safe for seamen to live and work upon.

When a maritime employer fails to provide a safe ship for his employees to live and work upon, the employer may be required to pay damages to an employee if he is injured as a result of the unseaworthy condition. Damages and compensation are often acquired through either court proceedings or through offshore settlements.

The main difference between taking a maritime case to court and accepting offshore settlements is the person or persons who decide the amount of compensation that will be paid out to the injured seaman. Maritime cases that proceed to court will be decided by either a judge or a jury. If you have a very strong case, going to court could result in a very positive outcome. In contract, offshore settlements are decided and negotiated by the employer and the employee, and often, each of the party’s respective legal representatives.

Seamen who are entertaining the idea of accepting a settlement should consult with an experienced maritime attorney before agreeing to an offer to ensure that it is fair in light of the circumstances surrounding the injury.  There are numerous factors that should be seriously considered when placing a monetary value on a maritime case. A knowledgeable maritime lawyer can accurately assess your case and negotiate with your employer on your behalf.

 

As a general matter, when a seaman is injured while working on a ship or vessel, he has the right to bring a claim against his maritime employer for damages under the Jones Act as well as principles of general maritime law. After a claim is filed, many employers offer maritime settlements to employees in an effort to dispose of the case in an efficient and inexpensive manner. Depending upon the seaman’s claim, it may be in his best interests to forgo maritime settlements in favor of pursuing the case is court.

There are some cases where maritime settlements can be advantageous to an injured maritime worker. Often, those cases arise when the employee was engaged in an act of misconduct or extreme negligence at the time of his injury. The courts have long recognized the legal principle of comparative negligence in maritime injury cases. This principle allows the court or a jury to assign blame in terms of percentages to each party involved in the accident. Therefore, if the maritime worker was 50% at fault for causing his own injury, his damages may be reduced by 50% as well. In cases where employees opt to negotiate maritime settlements with their employers, they may end up negotiating an agreement that provides more compensation than they would have received had the case gone to court.

While the courts have held that a seaman’s negligence will not bar his recovery under the Jones Act, recovery may be barred completely in cases of employee misconduct under general principles of maritime law. In Exxon Co., USA v. Sofec, Inc., 517 US 830 (1996), the Supreme Court held that “an injured party who is the superseding or sole proximate cause of the damage complained of cannot recover from a party whose actions or omissions are deemed to be causes in fact, but not the legal cause of the damage.” This case essentially says that if one person’s misconduct is the sole cause of their injury, they may not recover from another party, even if that party was negligent at some point in time prior to the injury. For seaman who fit this scenario, negotiating maritime settlements might provide more compensation than the court would provide.

 

The Jones Act was enacted by Congress to ensure that seaman and maritime workers who were injured while performing their job duties were properly compensated. When a seaman files a Jones Act claim following an injury, his or her employer may attempt to persuade the seaman to accept a settlement offer to dispose of the claim quickly.

Often times, an employer will offer an initial Jones Act settlement that is far below the amount that the claim is actually worth.  Maritime workers who are not familiar with the technical aspects of valuating a Jones Act settlement offer may view the employer’s offer as “fair” when, in fact, it is not.

It is important for seaman and maritime employees to understand that once they accept a Jones Act settlement offer for their claim, they will generally be precluded from bringing their case to court. Therefore, a Jones Act settlement, if accepted, will be considered the final disposition in the case. This point is significant since maritime employees may overlook potential expenses that may arise when accepting a Jones Act settlement.

There are numerous factors that must be considered when determining the value of a Jones Act case. Some of these factors include: past and future wage loss, past and future fringe benefit value, current medical expenses, future medical treatment and medication, rehabilitation expenses, lost earning capacity, past and future pain and suffering, present and future disability, loss of quality of life and impairment. A Jones Act settlement offer that does not consider or allocate adequate funds for each of these factors that are relevant to the employee is likely not a fair Jones Act settlement offer.

Maritime employees and seaman who have been injured in a maritime accident and have been approached with a settlement offer from their employer should always consult with an experienced attorney who is familiar with evaluating maritime and Jones Act claims. Failing to seek the advice and counsel of a qualified attorney before accepting a Jones Act settlement offer could cost you thousands of dollars in compensation that you are rightfully entitled to receive.

 

In the majority of maritime injury cases that are handled by Houston Jones Act lawyers, the employer has an obligation to provide maintenance and cure benefits to an employee who is injured while serving his or her ship. Employers who fail to provide maintenance and cure benefits when an obligation exists to do so may be liable for attorney’s fees, interest on amounts due and other penalties assessed by the court.

Houston Jones Act lawyers understand that the obligation for an employer to pay maintenance and cure payments to an injured seaman is very broad. In one famous case, Koistinen v. American Export Lines, Inc., 83 N.Y.S. 2.d 297 (1948), a seaman was awarded maintenance and cure even though his injury did not occur on his ship. Rather, the seaman was injured when he jumped from the window of a prostitute’s room to escape a scuffle with another one of her male associates. In this case, the seaman still had a duty to report to his ship, even though he was pursuing recreational activities at the time of his injury.

Houston Jones Act lawyers are aware that the courts have generally held that seamen who are under the supervision of their maritime employer or have a duty to report to their ship are eligible to receive maintenance and cure payments from their employer regardless of whether the injury took place on their vessel or on land. However, Houston Jones Act lawyers also understand that there are a few scenarios that may preclude a seaman from obtaining maintenance and cure benefits from their employers.

Seamen who willfully conceal a prior medical condition from their employer may not be eligible for maintenance and cure benefits if the prior injury was the root cause of their present injury. Additionally, a seaman is generally not entitled to maintenance and cure if their injury or illness is caused by their own “willful misconduct” such as severe intoxication. If you have been involved in a maritime injury or accident you should contact the Houston Jones Act lawyers in your area to discover whether you are entitled to maintenance and cure payments under the law.

 

Offshore claims for maintenance and cure benefits are typically granted to seamen who become injured while performing their job duties upon a ship or vessel. As a general rule, a maritime employer has a duty to compensate seamen who make offshore claims for maintenance and cure regardless of whether the employer was negligent or not. Basic maintenance and cure benefits provide injured seamen with food, shelter, unpaid wages and compensation for medical costs associated with their injury.

An employer is only required to pay maintenance and cure benefits to a seaman while he is recovering from his injury. There are two scenarios under which a maritime employer is entitled to stop maintenance and cure payments. The first scenario occurs when a seaman has reached his or her “maximum medical cure” and the second scenario occurs when the maritime employee is considered permanently disabled.

Maximum medical cure is achieved when it appears probable or likely to the court that further treatment will result in an improvement of the seaman’s condition. Terrebonne v. B & J Martin, Inc., 906 So.2d 431 (1st Cir. 2005) In a typical case, both the employer and the employee will provide a statement from one or more doctors, surgeons or medical professionals indicating whether or not the seaman has achieved maximum medical cure. After hearing the testimony from each party’s doctors, the court will usually make a credibility determination based on the evidence presented.

Similarly, if maritime employees bring offshore claims for maintenance and cure and are later found to be permanently disabled by the court, the maritime employer will no longer have an obligation to provide maintenance and cure payments. In such cases, additional offshore claims may be pursued against the employer for a final determination of damages and compensation that can be recovered by the seaman.