Opinion
Civil Action No. 99-1769 Section "T" (4)
March 26, 2002.
This cause came for bench trial on a previous date. The Plaintiff, Donald Williams, sued the Defendant, McCall's Boat Rentals, Inc. ("McCall's") seeking recovery of damages for injuries allegedly sustained during a crew change aboard the M/V SAM MCCALL, a crew ship owned and operated by McCall's. In addition, the Plaintiffs wife and son sued McCall's for loss of consortium due to Williams's injuries allegedly sustained aboard the M/V SAM MCCALL. Pride Offshore, Inc. ("Pride") and Signal Mutual Indemnity Association, Ltd. ("Signal"), respectively Williams's employer and the employer's insurer, intervened in the present action. These interveners paid compensation benefits to or on behalf of Williams pursuant to the Longshore and Harbor Workers' Compensation Act in the amount of $21,675.07. Pride and Signal claim that they are entitled to reimbursement of the full amount of workers' compensation benefits paid to or on behalf of Williams should Williams recover damages in the instant action.
The Court, having heard the testimony at trial, and having considered the record, the evidence, the applicable law, and the memoranda submitted by the parties, now makes the following findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. To the extent that any conclusion of law is deemed to be a finding of fact, it is adopted as such; and likewise, any finding of fact that is deemed to be a conclusion of law is so adopted.
FINDINGS OF FACT
With regard to the Court's factual findings, if no exhibit is specifically referenced, that particular finding is based upon the testimony given by various witnesses at trial.
1. At all material times, Plaintiff, Donald Williams, was employed by Pride Offshore, Inc. as a crane operator aboard Pride Rig 1002E. He is 37 year old and resides in Franklinton, Louisiana. The Plaintiff had been an employee of Pride Offshore, Inc. for 14 years at the time of the accident on May 6, 1999.
2. At all material times, the M/V SAM MCCALL, a crew boat vessel, was owned and operated by the Defendant, McCall's Boat Rentals, Inc.
3. The M/V SAM MCCALL was under the direction of Captain Danny Waters on the morning of May 6, 1999. Captain Waters had approximately 25 years of experience as a captain at the time of the accident in question.
4. The M/V SAM MCCALL was scheduled to transport Pride employees from a Chevron dock located in Venice, Louisiana, to the Pride rig in the Gulf of Mexico on the morning of May 6, 1999.
5. The M/V SAM MCCALL was scheduled to depart the dock at approximately 3:00 a.m. on May 6, 1999. However, due to adverse weather conditions on that day, Captain Waters did not begin the voyage out to the rig until approximately 6:30 a.m. During the delay, there was talk of flying the crew out to the Pride rig via helicopter because of the rough seas; however, the crew was eventually transported to the rig via the M/V SAM MCCALL. Captain Waters testified that under normal weather conditions, the trip out to the Pride rig takes approximately two hours and 45 minutes. However, several people testified at trial that the trip out to the rig on May 6, 1999, took approximately three hours and 45 minutes.
6. While the McCall's safety manual mandates that all captains constantly monitor weather conditions, Captain Waters testified that he failed to check the weather conditions on May 6, 1999. (Plaintiffs Exhibit 17). Furthermore, William Key, a liability expert, testified that such action is considered derelict for a sea captain.
7. During the voyage out to the Pride rig, several witnesses testified that the seas were extremely rough. While conflicting testimony was produced at trial concerning the precise weather conditions on the morning of May 6, 1999, this Court finds that the seas reached a height of greater than nine feet during the voyage from the dock to the rig. Not only did the Plaintiff and several members of the crew testify that the seas were splashing over the plus 10 deck, but the vessel logs of the M/V SAM MCCALL indicate that the seas were between 10 and 12 feet, with winds at 25 miles per hour. (Defendant's Exhibit 3).
8. Captain Waters testified that seas above eight feet high are considered to be dangerous. Additionally, Captain Waters testified that winds at a speed of 20-25 miles per hour are considered dangerous as well. Furthermore, William Key, a marine expert, testified that seas of a height of eight feet are reasonably safe within which a vessel the size of the M/V SAM MCCALL to sail. However, Key testified that in his expert opinion, seas greater than eight feet high are unsafe within which to sail.
9. At some point during this rough voyage, the Plaintiff was bounced up and down in his seat aboard the M/V SAM MCCALL and was eventually thrown from his seat due to the rough seas.
10. The Plaintiff complained of a sharp pain traveling from his back through his legs as a result of being bounced up and down and eventually thrown from his seat during the May 6, 1999 voyage out to the rig. Furthermore, several crew members testified that the Plaintiff was complaining that he injured his back during his voyage out to the rig.
11. Based on the testimony presented at trial, this Court finds that the Plaintiff sustained an injury to his back as a result of being bounced up and down and thrown from his seat during the voyage out to the Pride rig aboard the M/V SAM MCCALL.
12. After arriving at the Pride rig, the crew members were transferred from the M/V SAM MCCALL to the rig via a personnel basket.
13. While there was conflicting testimony given at trial regarding the offloading process via the personnel basket and its role in either causing or contributing to the Plaintiffs injury, this Court finds that the offloading process via the personnel basket did not contribute to the Plaintiffs injury. The Court finds that the sole cause of the Plaintiffs injury on May 6, 1999 was the voyage aboard the M/V SAM MCCALL in rough seas.
14. After the accident, the Plaintiff remained aboard the Pride rig, but was unable to perform any work. Testimony at trial revealed that this was the first time during his employment with Pride that the Plaintiff was unable to do his work.
15. Prior to the May 6, 1999 accident, the Plaintiff had an extensive history of low back problems. In 1993, the Plaintiff sought treatment from Dr. Libeau Berthelot for low back pain. [Defendant's Exhibit 13d, page 6].
16. In December 1996, while chasing a cow on his farm, the Plaintiff slipped and "went the wrong way," injuring his back. — As a result of this injury, he visited Dr. John Jacobs, a chiropractor, thirteen times during the months of January and February of 1997. [Defendant's Exhibit 13(g), Deposition of Dr. Jacobs, page 4].
17. In September 1997, the Plaintiff had a CT scan performed on his back because he "wanted to know what the problem was."
18. In October 1997, the Plaintiff was referred to Dr. Kevin Dan for further treatment of his back. Dr. Dan advised the Plaintiff that he had a lumbar strain and a degenerative joint disease at L5-S1. Dr. Dan prescribed Naprosyn, Soma, and Ultram for the Plaintiff and placed the Plaintiff on a stretching and strengthening program. [Defendant's Exhibit 13(g), Deposition of Dr. Darr, page 7.]
19. In December 1997, the Plaintiff sought treatment for his low back pain from Dr. Jerry Thomas. He told Dr. Thomas that he had a flare-up of his back pain, so Dr. Thomas prescribed Vicodin, Naprosyn, and Soma for the Plaintiffs pain. [Id. at 17-18]
20. In April 1998, the Plaintiff sought treatment from Dr. Elizabeth Cain for his low back pain.
21. In September 1998, the Plaintiff again requested pain medication for his back from Dr. Thomas. He then visited Dr. Gerald Foret, in November 1998, complaining of low back pain.
22. On March 10, 1999, less than two months prior to the accident in question, the Plaintiff again contacted Dr. Thomas regarding his low back pain. [Defendant's Exhibit 13(e), Deposition of Dr. Thomas, page 5.] The Plaintiff told Dr. Thomas that he had an acute flare-up of pain in his left lower back and needed a refill of his medication because he was leaving soon to go offshore. [Id.] Dr. Thomas prescribed Vicodin, Naprosyn, and Soma for the Plaintiffs low back pain. [Id. at page 6.] Dr. Thomas administered a straight leg test, which was positive, indicating nerve root irritation. [Id. at page 21.]
23. Prior to the accident in question, the Plaintiff received several prescriptions from various doctors for his low back pain. These prescriptions were for the following medications: Vicodin, Hydrocodone, Ultram, and Vicodin Extra Strength, all of which are narcotic pain medications; Naproxen and Carisoprodol, which are anti-inflammatories with analgesic properties; and Soma, a muscle relaxer. [Defendant's Exhibits 7 and 8]. These prescriptions were filled at the Forshag Drug Store and the Winn Dixie Pharmacy. [Id.]
24. The records of Forshag Drug Store and Win Dixie Pharmacy indicate that the Plaintiff had various prescriptions filled to treat his low back pain, spasms, and inflamation on at least 28 occasions from 1997 until the accident on May 6, 1999. [Id.]
25. The Plaintiff received refills of prescriptions for Vicodin ES, Naproxen, and Soma on March 10, 1999, approximately two months prior to the accident on May 6, 1999. Additionally, the Plaintiff received refills of prescriptions for the same three drugs on April 15, 1999, just three weeks before the May 6, 1999 accident. [Id.] These drugs were prescribed by two different physicians without the knowledge of each other.
26. Based on the medical evidence cited above, the Court finds that the Plaintiff was suffering from a pre-existing low back problem at the time of his accident aboard the M/V SAM MCCALL. Specifically, the Court finds that the Plaintiff was suffering from degenerative disk disease in his low back and chronic low back pain prior to his accident on May 6, 1999.
27. After considering the sometimes conflicting and irreconcilable medical testimony presented at trial, the Court finds significant the medical opinion of Dr. Melvin Parnell, who testified that the Plaintiff suffered from a defective L5-S1 disc and associated root irritation that pre dated the accident in question and was degenerative in nature.
28. Furthermore, a preponderance of the evidence indicates that the incident on May 6, 1999 caused only a temporary aggravation to the Plaintiffs pre-existing, degenerative low back condition. Accordingly, the Court finds that the Plaintiffs injury sustained aboard the MN SAM MCCALL was merely a periodic "flare up" of this pre-existing low back problem, not a new injury to his back.
29. While the Plaintiff complained of greater pain after the May 6, 1999 accident, the Plainitff failed to prove that any such worsening of pain was the result of a new back injury, rather than the result of a temporary aggravation of his pre-existing condition.
30. With regard to the issue of general damages, the Court finds that the Plaintiff is entitled to damages for pain and suffering as a result of the incident on May 6, 1999 to the extent that such incident caused a temporary "flare up" of the Plaintiffs pre-existing back condition. Accordingly, the Court will award general damages only for the degree to which the accident temporarily aggravated his pre-existing condition.
31. The Court finds that the Plaintiff is entitled to $30,000.00 in general damages for pain and suffering as a result of the incident on May 6, 1999.
32. Furthermore, this Court is persuaded by the testimony of Dr. Parnell, who stated that the voyage aboard the M/V SAM MCCALL caused a temporary aggravation to the Plaintiffs pre-existing condition which subsided within approximately three months. Accordingly, this Court will award damages for medical expenses incurred between the months of May and August of 1999.
33. The medical bills presented to the Court at the trial in this matter indicate that the Plaintiff incurred $4,939.20 in medical expenses between the months of May and August of 1999. Accordingly, this Court awards the Plaintiff damages for the reimbursement of medical expenses incurred as a result of the May 6, 1999 incident in the amount of $4,939.20.
34. With regard to the issue of lost wages, conflicting testimony was presented at trial regarding the Plaintiffs fitness for his job as an offshore crane operator given his low back problems. Some evidence was introduced at trial indicating that the Plaintiff was already unfit for offshore employment at the time of the accident on May 6, 1999. However, after considering all of the evidence presented on that issue, this Court finds the opinion of Dr. Parnell to be persuasive. Dr. Parnell testified that based on the Plaintiffs pre-existing, degenerative condition, the Plaintiff would not have been able to continue in his job as an offshore crane operator for more than one year. This Court agrees and is of the opinion that the Plaintiff would have been unfit for his job within one year of the accident in question due to his preexisting, degenerative back condition, irrespective of the flare up occasioned on May 6, 1999.
35. Evidence submitted during the trial on this matter indicates that the Plainitff sustained $41,474.00 in after-tax wage losses from the date of the accident until the date of the trial. [See Plaintiffs Exhibit 39.] Using simple mathematics, the Court finds that the Plaintiff is entitled to $12,442.20 in damages for loss of past wages sustained as a result of the temporary aggravation occasioned on May 6, 1999.
The Court arrived at this figure by taking into account the finding that the Plaintiffs "flare up" lasted approximately three months. Accordingly, the Court awarded three months worth of lost wages based on the 10-month figure contained in Plaintiff s Exhibit 39.
36. With regard to the issue of loss of future wages, because the incident in question merely caused a temporary aggravation of the Plainitffs pre-existing injury, the Plaintiff is not entitled to recover damages for lost future wages from McCall's.
37. The Plaintiff underwent back surgery on February 11, 2000, including a posterior lumbar fusion with ray threaded cages at L5-S1, a partial hemilaminectomy bilaterally at L5-S1, and a foraminotomy bilaterally at L5-S1 with a diskectomy bilaterally at L5-S1.
38. However, because the Plaintiffs back condition was degenerative in nature, the Court finds that it is more likely than not that the Plaintiff would have been required to undergo surgery sometime in the near future regardless of the May 6, 1999 incident aboard the M/V SAM MCCALL. Accordingly, the Court finds that the cost of the surgery is not compensable.
39. Plaintiffs wife and son, Janet and Cody Williams, have asserted claims for loss of consortium. Since Plaintiff has not proven that he sustained a new injury to his low back in the incident aboard the M/V SAM MCCALL, his wife and son are entitled to damages only to the extent that they have proven that they were injured by the temporary aggravation of the Plaintiffs degenerative low back.
40. Moreover, since the Plaintiff was more likely than not going to have to undergo surgery regardless of the incident on May 6, 1999, the loss of consortium damages of his wife and son will not include the anxiety and stress and other losses associated with the surgery and post-surgical recovery.
41. The Court finds that Janet and Cody Williams are entitled to a total of $3,000.00 in damages for loss of consortium occasioned by the temporary aggravation of the Plaintiffs degenerative back condition.
42. Pride, the Plaintiffs employer, was insured for exposure pursuant to the Offshore and Harbor Workers' Compensation Act. As a result of the incident on May 6, 1999, Pride, through its compensation insurer, Signal, paid compensation benefits on behalf of Donald Williams in the amount of $21,675.07.
43. In accordance with conclusion of law Number 11, infra, the Court finds that Pride and Signal are entitled to a reimbursement of $21,675.07 in workers' compensation benefits paid to the Plaintiff out of any net recovery the Plaintiff receives.
CONCLUSIONS OF LAW
1. The analysis of a maritime tort is guided by the general principles of negligence law. See Consolidated Aluminum Co. v. C.F. Bean Co. et al., 833 F.2d 65, 67 (5th Cir. 1987) (citations omitted).
2. A negligence claim requires proof that (1) defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiffs injuries, and (4) the plaintiff suffered actual damage. See Uncle Ben's Int'l Div. of Uncle Ben's, Inc., 855 F.2d 215, 216 (5th Cir. 1988).
3. Under general maritime law, a vessel owner owes a passenger a duty of reasonable care under the circumstances. See Kermerac v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959); Riley v. Louisiana I-Gaming, 732 So.2d 541, 546 (La.App. 5 Cir. 1999).
4. The ultimate decision as to whether or not to proceed in transporting crew to rig via crew boat despite adverse weather conditions rests with the vessel captain. See Smith v. Southern Gulf Marine Co. No. 2, 791 F.2d 416, 418 (5th Cir. 1986).
5. Based on the evidence and testimony in the record, this Court concludes that McCall's, in undertaking the voyage on May 6, 1999 in seas that were at a height greater than nine feet and in failing to continually monitor the weather conditions on that date, breached its duty to the Plaintiff, its passenger, to act with reasonable care under the circumstances.
6. This Court concludes that the fact that a passenger would incur an injury to his back as a result of being bounced around and possibly thrown from his or her seat during the rough-sea voyage was a foreseeable consequence of McCalls's breach.
7. This Court finds that McCalls's breach was the proximate cause of the Plaintiffs injury on May 6, 1999. Therefore, this Court concludes that the Plaintiff, Donald Williams, is entitled to recover from McCall's damages for the tort of maritime negligence.
8. Although a tortfeasor takes his victim as he finds him, a tortfeasor is not liable for injuries that are not attributable to his wrongful conduct. See Id. (citing Geisler v. U.S. Fidelity and Guar., 498 So.2d 292 (La.App. 4 Cir. 1986); Sanders v. Collins, 551 So.2d 644 (La.App. 1 Cir.), writ denied, 556 So.2d 1261 (La. 1990)).
9. A tortfeasor is liable only for the direct and proximate results of his wrongful acts, including the aggravation of any preexisting injuries. See Coleman v. Lewis, 757 So.2d 907, 908 (La.App. 1 Cir. 2000).
10. Therefore, this Court concludes that McCall's is liable to the Plaintiff, Donald Williams, only for those damages associated with the temporary aggravation of his pre-existing condition occasioned by the voyage on May 6, 1999.
11. Any judgment rendered in favor of the Plaintiff should first be charged for the costs of recovery, including attorney's fees, and next for reimbursement of the workers' compensation benefits paid by his employer and its insurer. The remaining amount of recovery is then paid to the Plaintiff. See Fontenot v. Dual Drilling Co., 179 F.3d 969, 972-73 (5th Cir. 1999).
12. With respect to the benefits paid to the Plaintiff by Pride and Signal, the Court concludes that Pride and Signal are entitled to recover the full amount paid in workers' compensation benefits out of any net recovery plaintiff obtains in the instant action.