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.

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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