Jason Grab v. Boh Brothers Construction Co.

Case: 11-30606 Document: 00512102131 Page: 1 Date Filed: 01/04/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2013
No. 11-30606 Lyle W. Cayce
Clerk
JASON GRAB, et al., Plaintiffs
v.
BOH BROTHERS CONSTRUCTION COMPANY, L.L.C., et al., Defendants
JACOB KINCHEN, Plaintiff – Appellee Cross-Appellant, and
WENDY KINCHEN, Plaintiff – Cross-Appellant
v.
TRAYLOR BROTHERS, INC., KIEWET SOUTHERN COMPANY &
MASSMAN CONSTRUCTION COMPANY, a Joint Venture, Defendant –
Cross-Appellee, and BOH BROTHERS CONSTRUCTION COMPANY, L.L.C.,
Defendant – Appellant Cross-Appellee
LARY SCOTT ABSHIRE, individually and on behalf of his minor child,
Kinley Lyric-Grace Abshire, Plaintiff – Appellee Cross-Appellant
v.
TRAYLOR BROTHERS, INC., KIEWET SOUTHERN COMPANY &
MASSMAN CONSTRUCTION COMPANY, A Joint Venture, Defendant –
Cross-Appellee, and BOH BROTHERS CONSTRUCTION COMPANY, L.L.C.,
Defendant – Appellant Cross-Appellee
CONSOLIDATED WITH No. 11-30999
JASON GRAB, Plaintiff
v.
BOH BROTHERS CONSTRUCTION COMPANY, L.L.C., Intervenor-
Appellant, and BOH BROTHERS CONSTRUCTION COMPANY, L.L.C.,
Defendant-Appellant
JACOB KINCHEN, Plaintiff-Appellee
v.
BOH BROTHERS CONSTRUCTION COMPANY, L.L.C., Defendant-
Appellant
Case: 11-30606 Document: 00512102131 Page: 2 Date Filed: 01/04/2013
LARY SCOTT ABSHIRE, individually and on behalf of his minor child,
Kinley Lyric-Grace Abshire, Plaintiff-Appellee
v.
BOH BROTHERS CONSTRUCTION COMPANY, L.L.C., Defendant-
Appellant
Appeals from the United States District Court
for the Eastern District of Louisiana
Nos. 2:09-CV-3439; 2:09-CV-4128; 2:10-CV-838
Before DAVIS, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellees are two ironworkers who were severely injured in the
course of the reconstruction of the Interstate-10 twin span bridge across Lake
Pontchartrain. The appellees performed part of their work from a derrick barge,
the BIG MAC, and part of their work from the bridge structure. The district
court determined one employee to be a seaman on summary judgment, and
determined the other employee to be a seaman after a bench trial. Because the
record supports the district court’s conclusion that the appellees contributed to
the mission of the BIG MAC and had a connection to it which is substantial in
terms of nature and duration, we AFFIRM the judgment based on the district
court’s conclusion that both men are seamen under the Jones Act.
I.
In 2008, Boh Brothers Construction Company, L.L.C. (“Boh Brothers”);
and Traylor Brothers, Inc., Kiewet Southern Co., and Massman Construction
Co., a Joint Venture (“the Joint Venture”); were jointly engaged in the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
2
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construction of the new Interstate-10 twin span bridge across Lake
Pontchartrain, connecting New Orleans with Slidell, Louisiana. Boh Brothers
received the contract to construct the approaches of the new bridge, while the
Joint Venture received the contract to construct the high-rise portions of the new
bridge.
Jacob Kinchen (“Kinchen”) and Lary Scott Abshire (“Abshire”) were
ironworkers employed by Boh Brothers to help construct the bridge. On July 3,
2008, Kinchen and Abshire were traveling from the bridge work site to shore in
a crew boat piloted by Kinchen when the boat allided with a Joint Venture
survey tower in Lake Pontchartrain. The survey tower that was struck was one
of four such towers constructed in Lake Pontchartrain to ensure the proper
construction of the bridge. The tower stood seven to nine feet above the water,
measured 42 inches across at its base and 24 inches across at its top, and was
capped with a white navigational light. At the time of the accident, Kinchen’s
vision was partially obstructed by two large tires that a Boh Brothers supervisor
had placed on the front of the boat. Kinchen and Abshire sustained severe
injuries as a result of the allision.
At the time of the accident, Kinchen was employed by Boh Brothers as an
ironworker foreman and headed a crew that was responsible for placing the
girders on the bridge. Abshire was assigned as an ironworker in Kinchen’s crew,
and the day of the accident was Abshire’s first day of employment. Both
employees were land-based and traveled daily to and from the work site by
crewboat. Kinchen and his crew operated from a large crane barge, the BIG
MAC, which was used to lift the girders and materials and support the crew
necessary to construct the bridge. The ironworker crew was responsible for
erecting work platforms around bridge pilings, setting caps on the pilings,
setting pads, and setting the bridge girders. Abshire and Kinchen, as members
of the ironworker crew, were also responsible for assisting in the navigation of
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the BIG MAC from one work station to another. Although the barge remained
stationary most of the time, it was necessary to routinely move the barge, with
the aid of a tugboat, along the length of the bridge as work progressed and away
from the bridge at the end of each day.
Following the accident, Kinchen and Abshire brought suit against Boh
Brothers and the Joint Venture, each alleging that as seamen, they were entitled
to recover damages under the Jones Act and general maritime law. The trial
court granted summary judgment in Kinchen’s favor on the issue of seaman
status. Specifically, the court found that the evidence established that Kinchen
contributed to the bridge-construction function of the BIG MAC, that he spent
30–95% of his time aboard the barge, that he was partially responsible for
assisting with the navigation and maintenance of the barge, and that his work
sufficiently exposed him to traditional maritime perils.
Because Abshire was injured his first day on the job, the district court
denied his summary judgment motion on seaman status and proceeded to a
bench trial on this issue. After the bench trial, the district court concluded that
Abshire was also a seaman. It found that the testimony established that
Abshire’s prospective employment with Boh Brothers would have required him
to assist in the mission of the BIG MAC, spend at least 30% of his time aboard
the barge, assist with its navigation and maintenance, and sufficiently expose
him to traditional maritime perils on Lake Pontchartrain.
In its findings of fact, the district court also apportioned fault for the
accident 50% to Kinchen and 50% to Boh Brothers, with no fault being allocated
to Abshire or the Joint Venture. Specifically, the court found that Boh Brothers
negligently placed the tires on the crew boat in a manner that would obscure the
pilot’s view, and that Kinchen was not attentive while piloting the boat knowing
that he was in a construction zone and that his vision was obstructed. The
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district court awarded Abshire general damages of $1,325,000 and Kinchen
general damages of $900,000, subject to a reduction for his comparative fault.
II.
We review an order granting a motion for summary judgment de novo.
Storebrand Ins. Co. U.K., Ltd. v. Emp’rs Ins. of Wausau, 139 F.3d 1052, 1055
(5th Cir. 1998). Summary judgment is warranted when the pleadings,
depositions, interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact. FED. R. CIV.
P. 56; Celotex v. Catrett, 477 U.S. 317, 322 (1986). In contrast, we review a
district court’s findings of fact for clear error and its legal conclusions de novo.
Klamath Strategic Inv. Fund v. United States, 568 F.3d 537, 543 (5th Cir. 2009).
III.
Boh Brothers first argues that the district court erred in its determination
that Kinchen and Abshire were “seamen” entitled to the protections of the Jones
Act. To qualify as a seaman, first “an employee’s duties must ‘contribute to the
function of the vessel or to the accomplishment of its mission.’” Chandris, Inc.
v. Latsis, 515 U.S. 347, 368 (1995) (quoting McDermott Int’l., Inc. v. Wilander,
498 U.S. 337, 355 (1991)). Second, “a seaman must have a connection to a vessel
. . . that is substantial in terms of both its duration and its nature.” Id.
(emphasis added). “The duration of a worker’s connection to a vessel and the
nature of the worker’s activities, taken together, determine whether a maritime
employee is a seaman because the ultimate inquiry is whether the worker in
question is a member of the vessel’s crew or simply a land-based employee who
happens to be working on the vessel at a given time.” Id. at 370.
As an initial matter, there can be little doubt that both Kinchen and
Abshire satisfy the first prong of the Chandris seaman test. It is undisputed that
the BIG MAC is a vessel in navigation, and that Kinchen and Abshire’s primary
responsibility was to assist in the accomplishment of the vessel’s purpose: the
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assembly of the Pontchartrain bridge. See In re Endeavor Marine Inc., 234 F.3d
287, 290 (5th Cir. 2000) (“To satisfy the first prong of the Chandris test, the
claimant need only show that he/she does the ship’s work.” (internal quotation
marks omitted)).
However, Boh Brothers disputes the district court’s conclusion that
Kinchen and Abshire have satisfied the second prong of the Chandris test and
that they each have a connection to the BIG MAC which is substantial in both
nature and duration.
A.
Boh Brothers argues first that Kinchen is not a seaman and asks us to
reverse the district court’s grant of summary judgment to the contrary. The
question of seaman status is a mixed question of law and fact, but may rightfully
be determined on summary judgment where the underlying facts are
uncontroverted and “the only rational inference to be drawn from the evidence
is that the worker [is] a seaman.” Beard v. Shell Oil Co., 606 F.2d 515, 517 (5th
Cir. 1979); see Chandris, 515 U.S. at 369.
Boh Brothers argues primarily that Kinchen cannot satisfy the second
Chandris prong because Kinchen is a land-based worker whose job does not
regularly expose him to the “perils of the sea.” As Boh Brothers correctly points
out, the primary purpose of this inquiry is to separate those “sea-based maritime
employees . . . from those land-based workers who have only a transitory or
sporadic connection to a vessel.” Chandris, 515 U.S. at 368; see also In re
Endeavor Marine Inc., 234 F.3d 287.
More importantly, Boh Brothers’s argument ignores the Supreme Court’s
articulation of the relevant inquiry: whether Kinchen’s connection to the BIG
MAC is “substantial in terms of both its duration and its nature.” Chandris, 515
U.S. at 355. The weight of the evidence is that Kinchen, as an ironworker
foreman, spent a substantial portion of his time on the BIG MAC, which moved
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around the work site transporting and supporting men and materials to
construct portions of the bridge. As to the nature of Kinchen’s work, all of
Kinchen’s substantial time aboard the BIG MAC was devoted to the furtherance
and supervision of the crane barge’s objective, the construction of the
Pontchartrain bridge. Kinchen was cross-trained to perform a variety of tasks
related to the maintenance and function of the barge. Moreover, the fact that
Kinchen returned home daily did not remove him from his exposure to
cognizable dangers of the sea.1 Nor does the classification of Kinchen as a bridge
ironworker, a traditionally land-based occupation, serve to negate the seaman
status to which Kinchen would otherwise be entitled by virtue of his connection
to the BIG MAC. See Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 89 (1991).2
This Court’s decision in In re Endeavor Marine also supports the
conclusion that Kinchen is a seaman. 234 F.3d 287. In that case, we considered
whether a derrick barge’s crane operator satisfied the Chandris test and
qualified as a seaman. The injured crane operator worked on a barge in the
Mississippi River and was responsible for unloading cargo from other vessels at
the port. Id. at 289. Like Kinchen, the crane operator in In re Endeavor Marine
performed a traditionally land-based job which never carried him beyond the
immediate vicinity of the port where he was assigned. See id. In reaching the
conclusion that the crane operator was a seaman, we rejected the district court’s
reasoning that an employee could not be a seaman if “his duties do not literally
1
See Stewart v. Dutra Constr. Co., 543 U.S. 481, 497 (2005) (“[I]t seems a stretch of the
imagination to class the deck hands of a mud dredge in the quiet waters of a Potomac creek
with the bold and skillful mariners who breast the angry waves of the Atlantic; but such and
so far-reaching are the principles which underlie the jurisdiction of the courts of admiralty
that they adapt themselves to all the new kinds of property and new sets of operatives and
new conditions which are brought into existence in the progress of the world.” (quoting Saylor
v. Taylor, 77 F. 476, 479 (4th Cir. 1896)).
2
“It is not the employee’s particular job that is determinative, but the employee’s
connection to a vessel.” Sw. Marine, 502 U.S. at 89 (quoting Wilander, 498 U.S. at 354).
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carry him to sea.” Id. at 292. Because the nature of the crane operator’s duties
revolved around the largely stationary crane barge which remained exposed to
maritime perils, we found that the crane operator was a seaman as a matter of
law. Id.
Kinchen’s maritime connection to the BIG MAC is indistinguishable from
the crane operator’s comparable connection in In re Endeavor Marine. Because
his connection to the BIG MAC was substantial in both duration and nature,
Kinchen qualifies as a seaman.
B.
Boh Brothers also argues that Abshire is not a seaman and that the
district court erred in finding to the contrary.3 As with the question of Kinchen’s
seaman status, the inquiry here also concerns whether Abshire had a connection
to the BIG MAC “that is substantial in terms of both its duration and its
nature.” Chandris, 515 U.S. at 368.
Beginning with the question of the nature of Abshire’s connection to the
BIG MAC, Boh Brothers has raised the same argument that it did with respect
to the nature of Kinchen’s connection. Our above reasoning with regard to
Kinchen applies equally to Abshire. He therefore has the requisite connection
to the BIG MAC that is substantial in nature.
Abshire’s seaman status thus turns on whether he has a connection to the
BIG MAC that is substantial in duration. Although Abshire was injured on his
first day of work, the appropriate scope of the duration inquiry is not limited to
the day of his injury, but should instead consider the full breadth of the intended
scope and duties of his employment. See id. at 372; Becker v. Tidewater, Inc.,
335 F.3d 376, 389 (5th Cir. 2003). “If a maritime employee receives a new work
3
The district court determined that Abshire had satisfied the nature element on
summary judgment, but did not conclude that he had satisfied the duration element until after
the bench trial. We accordingly review these issues under the applicable standard of review.
See supra section II.
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assignment . . . , he is entitled to have the assessment of the substantiality of his
vessel-related work made on the basis of his activities in his new position.”
Chandris, 515 U.S. at 372. Abshire was engaged as a full time employee on the
Pontchartrain bridge project with the expectation that his employment was
permanent or to extend indefinitely until the job was completed.
Where the worker divides his time between vessel and land, an employee
can only establish the requisite connection to a vessel—and thus qualify as a
seaman—if he spends a substantial portion of his time in service of the vessel.
See id. at 371. This circuit has quantified the minimum duration of time
necessary to qualify as “substantial” for the purpose of classifying an employee
as a seaman: “[A]s a general rule, [a worker] must show [substantial duration]
by demonstrating that 30 percent or more of his time is spent in service of that
vessel.” Becker, 335 F.3d at 388–89 (quoting Roberts v. Cardinal Servs. Inc., 266
F.3d 368, 375 (5th Cir. 2001)).
Abshire’s duties and the portion of his time he would have spent in service
of the BIG MAC on this job were the subject of intense factual dispute at the
bench trial. A Boh Brothers project supervisor testified that Abshire would have
spent no more than about 20% of his time aboard the BIG MAC. However, two
other ironworkers with similar duties to Abshire testified that 30-40% of his
time would be spent aboard the barge. Additionally, Kinchen, who was Abshire’s
immediate supervisor, testified that Abshire would have spent 60% of his time
on the BIG MAC. In light of this evidence, we find no clear error in the trial
court’s decision to credit the testimony of Abshire’s foreman and fellow
employees. We therefore decline to disturb the trial court’s factual finding that
Abshire would have spent at least 30% of his time aboard the BIG MAC and thus
satisfied the duration component of the Chandris seaman test.4
4
Citing Federal Rule of Evidence 602, Boh Brothers argues that the district court erred
by crediting testimony from other journeymen ironworkers and foremen although such
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The record therefore fully supports the district court’s finding that Abshire
had a connection to the vessel which was substantial in duration and nature,
and therefore was a seaman.
C.
Boh Brothers also challenges the $1,325,000 general damages award to
Abshire. Because a damage award is a finding of fact, we review such awards for
clear error. Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 121 (5th Cir.
1994).
When the crewboat allided with the survey tower, Abshire’s entire body
was thrown forward, causing his left side to strike the wall of the boat’s cabin.
It is undisputed that Abshire had substantial injuries resulting from the allision,
including left sacral fractures, left pelvis fractures, multiple spinal fractures, a
partially collapsed lung, and crushed testicles. Besides his immediate traumatic
injuries, Abshire underwent multiple surgeries, suffered a severe staph
infection, panic attacks and anxiety, and sustained reflex sympathetic dystrophy
(complex regional pain syndrome), a condition of the nerves following an injury
resulting in disproportionate discomfort and pain. On the date of the accident,
Abshire was 29 years old. Trial testimony established that Abshire is
permanently disabled, will continue to degenerate, and will likely require follow-
up surgeries and treatment for the rest of his life.5
workers had no supervisory authority over Abshire. However, Boh Brothers misreads Rule
602, which requires only that a witness “ha[ve] personal knowledge of the matter.” Because
Rule 602 requires only personal knowledge and not supervisory authority, the testimony of the
other journeymen ironworkers and foremen is certainly admissible.
5
Unchallenged is the district court’s award of $1,346,824 for Abshire’s future medical
expenses, as well an award of $2,128,614 for his lost wages and fringe benefits.
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In light of the evidence establishing the severe and permanent nature of
Abshire’s injuries, we cannot say that a general damages award of $1,325,000
constitutes clear error.6
D.
Next, Abshire and Kinchen challenge the district court’s factual finding
that the Joint Venture’s erection and maintenance of the survey tower was not
a cause of the accident. The analysis of a maritime tort is guided by general
principles of negligence law, and includes the requirement that the plaintiff
demonstrate a “causal connection between the defendant’s conduct and the
plaintiff’s injury.” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211
(5th Cir. 2010).
Abshire and Kinchen argue that the record requires a finding that the
Joint Venture’s negligent maintenance of the survey tower involved in the
allision was a cause of the accident. Specifically, they contend that the survey
piling’s lack of discrete markings and color made it difficult to see under variable
daylight conditions. Furthermore, they contend that the Joint Venture failed to
obtain the proper regulatory permit required for such structures in navigable
waters.
However, the record amply supports the district court’s finding that the
survey tower’s coloration and regulatory certification had nothing to do with the
allision. According to the trial testimony, the accident occurred on a clear day
6
See, e.g., Thornton v. Diamond Offshore Management Co., 326 Fed. App’x 318 (5th Cir
2009) (unpublished) (upholding $2,500,000 general damages award for a plaintiff whose hand
and arm were crushed, requiring multiple surgeries and resulting in permanent disability).
Even the cases cited by Boh Brothers suggest that Abshire’s award is appropriate given the
admittedly severe nature of his injuries and his substantial expected medical expenses. See,
e.g., McGee v. Rowan Companies Inc., 2009 WL 3150309 (E.D. La. Sept. 24, 2009)
(unpublished) (awarding $900,000 in general damages to Jones Act plaintiff who suffered
crushed knee, extensive pain, and disability); McCuller v. Nautical Ventures, LLC, 2009 WL
3254290 (E.D. La. Oct. 6, 2009) (unpublished), vacated in part on other grounds, 434 Fed.
App’x 408 (5th Cir. 2011) (awarding $800,000 in general damages to maritime plaintiff who
suffered injured back, pain, and disability).
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and the survey tower was clearly visible from approximately a mile away.
Furthermore, Kinchen, who was operating the boat at the time of the accident,
testified that he had piloted the crewboat between the worksite and shore daily
for at least two months and that he was aware of the existence of the survey
towers and their approximate location. When asked at trial why he hit the
survey tower, Kinchen testified that the only reason he hit the tower was
because of the tires on the front of the boat.7
The record therefore fully supports the district court’s finding that the
survey tower was not a cause of the allision.
E.
The parties have also challenged the district court’s factual finding
relating to allocation of fault and the district court’s discretionary call relating
to its refusal to re-open evidence after the conclusion of the trial. However, after
a careful review of the record, we are unable to conclude that the district court
committed clear error or abused its discretion in either of these rulings.
IV.
For the reasons stated above, the judgment of the district court is
AFFIRMED.
7
The following exchange took place upon Kinchen’s cross-examination by Boh Brothers
counsel:
Counsel: Can you tell me why you hit that GPS tower on July the 3rd, 2008?
Kinchen: Because I didn’t see it.
Counsel: Why didn’t you see it?
Kinchen: Because they had tires on the front of the boat.
Counsel: Is there any other reason why you hit that tower, other than the tires were
on the front of the push knees?
Kinchen: No, sir.
12