Doucet v. R. & R. Boats, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ELROY DOUCET CIVIL ACTION

VERSUS

R. & R. BOATS, INC. NO. 17-00421-BAJ-EWD

ORDER

Before the Court is Defendant's Motion In Limine To Strike ALMA’s New

Claim For Recovery (Doc. 59), seeking to strike Intervenor Plaintiff American

Longshore Mutual Association, Ltd.’s (“ALMA”) claimed right of recovery under

Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404 (1969).

Burnside permits a direct action against a third-party tortfeasor in addition to any

recovery under the Longshore and Harbor Workers' Compensation Act (““LHWCA”),

33 U.S.C. § 901, et seg. ALMA opposes Defendant’s Motion. (Doc. 60).

The Court has carefully reviewed this matter and finds that the Motion should

be granted for the reasons advanced in Defendant's supporting memorandum. Based

on the face of its Complaint of Intervention (Doc. 6) (the “Intervenor Complaint”),

ALMA failed to adequately plead a claim for recovery under Burnside. A Burnside

claim, as will be discussed, is a tort action and therefore a plaintiff must establish

that (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached

the duty; (3) the plaintiff suffered damages; and (4) the breach of the duty proximately

caused the damages. See Crear v. Omega Protein, Inc. 86 Fed.Appx. 688, 691

(5th Cir, 2004).

When a party makes a motion to intervene, it must “be accompanied by a

pleading that sets out the claim or defense for which intervention is sought.”

Fed. R. Civ, P. 24(c). Just as any other complaint, the sufficiency of an intervenor

complaint is determined by Federal Rule of Civil Procedure (“Rule”) 8, which requires

“a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). The intervenor complaint need not set out “detailed

factual allegations,” but must contain something “more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action.” Bell Ail, Corp. v.

Twombly, 550 U.S. 544, 555 (2007). The primary purpose of Rule 8(a)(2) is to “give

the defendant fair notice of what the plaintiffs claim is and the grounds upon which

it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957).

While ALMA adequately pleaded its claim for a lien on Plaintiffs recovery

under the LHWCA, it failed to adequately plead a Burnside claim. The U.S. Court of

Appeals for the Fifth Circuit has instructed that a Burnside claim is an independent

method of recovery “not created, expressly or impliedly, by the LHWCA and does not

arise from or depend on any rights or obligations which the LHWCA imposes as

between the employer and the offending third party.” Lowe v. Ingalls Shipbuilding,

A Div, of Litton Sys., Inc., 723 F.2d 1178, 1182 (6th Cir. 1984). Instead, a Burnside

claim allows an insurer to “assert[] the stevedore’s right of direct action against the

shipowner on the basis of contractual subrogation to that right.” Hartford Acc. &

Indem. Co. v. Ocean Carrier, 799 F.2d 1093, 1096 (5th Cir. 1986); see also Burnside,

394 U.S. at 416-17 (We hold only that federal maritime law. .. does recognize a direct

action in tort against the shipowner to recover the amount of compensation payments

oceasioned by the latter's negligence.”). “The analysis of a maritime tort is guided by

the general principles of negligence law.” Consolidated Aluminum Corp. v. C.F. Bean

Corp., 833 F.2d 65, 67 (5th Cir. 1987) (citations omitted). Thus, a Burnside claim, as

a tort claim, requires that an insurer plead that a shipowner owed a duty to it, that

the ship owner breached that duty, and that that breach caused it damages.

In its Intervenor Complaint, ALMA alleged that its lability to Plaintiff under

the LHWCA was due to the fault and negligence of Defendant. ALMA further argued

that it was entitled to “recover from [Defendant] directly and by preference and

priority from the first monies received by [Plaintiff], whether by way of judgment,

settlement or otherwise, for the compensation, medical, expenses and attorney fees

ALMA has paid pursuant to the provisions of the Outer Continental Shelf Lands Act,

43 U.S.C. 81833, et seq., extending the benefits of the [LHCWA].” (Doc. 11 at § 15).

ALMA now argues that the Intervenor Complaint’s inclusion of the word

“directly” refers to a Burnside claim, and that the phrase “by preference and priority”

refers to a lien of under LHWCA. (Doc. 60 at 3). If ALMA sought a recovery for a claim

other than under the LHWCA; however, it must have adequately pleaded a cause of

action outside the LHWCA as a basis for recovery. It has failed to do so. ALMA

ALMA’s Intervenor Complaint does not allege that Defendant owed ALMA any duty,

nor does ALMA allege that any such duty was breached. Indeed, ALMA’s Intervenor

Complaint never mentions any remedy outside of the LHWCA. ALMA solely pleads

that it is entitled to recover due to Defendant’s negligence, which is consistent with

the requirements of the LHCWA. In context, the Intervenor Complaint’s use of the

word “directly” indicates only that ALMA is asserting its rights under the LHCWA.

ALMA was placed on notice that it had not adequately pleaded a Burnside

claim when the Magistrate Judge granted its Motion for Leave to File Complaint of

Intervention (Doc. 10) in October 2017. The Court permitted intervention “[b]ased on

LHWCA and the rights of employers and insurers set forth therein, as well as ALMA’s

assertion that it has made compensation payments to Plaintiff.” (Doc. 10 at 6). The

Court made no mention of a Burnside claim.

The deadline to amend pleadings was May 380, 2018 (Doc. 28). In all

documentation, ALMA has argued that it is entitled to recover under the LHWCA

and has never argued another cause of action until it filed its Memorandum in

Opposition to Motion for Partial Summary Judgment (Doc. 53). Because the Burnside

claim was never pleaded, Defendant has not been provided an opportunity to

challenge ALMA’s action. Allowing ALMA to expand the scope of its theory of

recovery beyond the allegations contained within the Intervenor Complaint would

run afoul of the notice pleading requirement. See Herster vu. Board Supervisors of

Louisiana State University, 221 F.Supp.3d 791, 795 (M.D. La 2016).

Accordingly,

IT IS ORDERED that Defendant's Motion in Limine to Strike ALMA’s New

Claim (Doc. 59) is GRANTED.

Baton Rouge, Louisiana, this oth day of November, 2020

JUDGE A> {—

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA