# Petition for Writ of Certiorari — Nunez v. Clarendon American Insurance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1045

## Text

() een. U.8.
| 02 296 Aue: 92002

No.
OPPAGE OF THE OLEARK
i
In The

Supreme Court of the United States
OCTOBER TERM, 2002

MILFRED J. NUNEZ
Petitioner
Vv.

CLARENDON AMERICA INSURANCE COMPANY
: Respondent

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

PETITION OF MILFRED J. NUNEZ FOR
A WRIT OF CERTIORARI

Louis R. Koerner, Jr.
Koerner Law Office
1204 Jackson Avenue
New Orleans, LA 70130-5130
Phone (504)581-9569
Of Counsel:
Pete Lewis
Lewis & Caplan, APLC

3631 Canal Street
New Orleans, LA 70119

August 19, 2002

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QUESTIONS PRESENTED

1. Given the judgment of the District Court that, due to the
unique nature of the dredge and the work performed, Milfred
Nunez was a seaman as a matter of law applied to uncontested
material facts, did the conclusion of the Court of Appeals that
Nunez, the dredge dump supervisor, did not have a substantial
temporal relationship with the M/V DREDGE BATON ROUGE,
thus reversing the District Court constitute an error of law and
establish a conflict with the decisions of the Third Circuit Court
of Appeals in Shade v. Great Lakes Dredge & Dock Company,
154 F.3d 143 (3d Cir. 1999) and Foulk v. Donjon Marine
Company, Inc., 144 F.3d 252 (3d Cir. 1997) and the decisions of
the Ninth Circuit Court of Appeals in Delange v. Dutra —
Construction, Co., Inc., 183 F.3d 916 (9th Cir. 1999) and Lorimer
v. Great Lakes Dredge & Dock Company, 2002 U.S. App. LEXIS
10775 (9th Cir. 2002), and Harbor Tug & Barge Co. v. Papai,
520 U.S. 548, 137 L.Ed.2d 800, 117 S.Ct. 1535 (1997), Chandris,
Inc. v. Latsis, 515 U.S. 347; 115 S.Ct. 2172; 132 L.Ed.2d 314
(1995), and McDermott International, Inc. v. Wilander, 498 U.S.
337; 111 S.Ct. 807; 112 L.Ed. 866 (1991)?

2. Did the holding that Nunez was not a seaman even though
he spent all of his time in the service of the M/V DREDGE
BATON ROUGE conflict with Ninth Circuit precedent that “a
worker's duties take him to sea if they are ‘inherently vessel
related’ or ‘primarily sea-based activities’”?

3. Was the grant of summary judgment by the Court of
Appeals upon consideration of the propriety of summary
judgment on seaman status in favor of the injured seaman
erroneous when there was countervailing factual evidence on the
essential material facts found to be “uncontested” by the Court of
Appeals and thus contrary to Celotex Corp. v. Catrett, 477 U.S.
317 (1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242

li

(1986), which prohibit the resolution of credibility determinations
in the contest of consideration of a motion for summary
judgment? '

ill

PARTIES TO THIS PROCEEDING

Petitioner is Milfred J. Nunez, plaintiff in the District Court
and appellee and cross-appellant in the Court of Appeals.

Respondent is Clarendon America Insurance Company, a
defendant in the District Court and an Sep eneee- nee eppenne in
the Court of Appeals.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED i
PARTIES TO THIS PROCEEDING ili
TABLE OF CONTENTS iV
TABLE OF AUTHORITIES Vv
TABLE OF APPENDICES Vil

OPINIONS BELOW 1
GROUNDS FOR JURISDICTION 1
STATUE INVOLVED l
STATEMENT OF THE CASE 2
A. The Consequences of the Decision Below 2
B. Proceedings Below 2
C. Statement of the Pertinent Facts 4
REASONS FOR GRANTING THE WRIT 7
A. The Issue as Framed by the Court of Appeals 8
B. The Correct Resolution of the Substantiality Issue 9

C. The Fifth Circuit’s Decision Was Error and Conflicts
With Decisions of Two Other Circuits and the
Supreme Court 10

D. Alternatively, the Summary Judgment Rendered by the
Court Appeals Was Erroneous Ms

CONCLUSION 15

Vv

TABLE OF AUTHORITIES

STATUTES:
28 U.S.C. 1254(1), 2101(c) 1
46 U.S.C. § 688 1
CASES:

Ardoin v. J. Ray McDermott, Inc., 641 F.2d 277, 6
282 (Sth Cir. 1981).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 15
(1986)

Bertrand v. International Mooring & Marine, Inc., 6
700 F.2d 240 (CAS 1983), cert. denied, 464 U.S.
1069, 79 L. Ed. 2d 212, 104 S. Ct. 974 (1984).

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 15
Chandris, Inc. v. Latsis, 515 U.S. 347; 115 S. Ct. S 34, 33.
2172; 132 L. Ed. 2d 314 (1995) 13,14
Dean v. McKie Co., 771 F.Supp. 466, 471 (D. 6

Mass. 1991).

Delange v. Dutra Construction, Co., Inc., 183 F.3d 10, 13
916 (9th Cir. 1999)

-Foulk v. Donjon Marine Company, Inc., 144 F.3d 10, 13
252 (3d Cir. 1997)
Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, = 11
137 L.Ed.2d 800, 117 S. Ct. 1535 (1997)

Lorimer v. Great Lakes Dredge & Dock Company, 10,14
2002 U.S. App. LEXIS 10775 (9th Cir. 2002)

McDermott International, Inc. v. Wilander, 498 6, 11
U.S. 337; 111 S.Ct. 807; 112 L.Ed.2d 866 (1991)

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vi

Nunez v. B. & B. Dredging, Inc., 288 F.34271(5" 1
Cir. La. 2002), reh. den., 2002 U.S. App. LEXIS
10979 (2002)

Nunez v. B. & B. Dredging, Inc., 108 F.Supp.2d 1
656; 2000 U.S. Dist. LEXIS 16530 (E.D. La.
2000).

Shade v. Great Lakes Dredge & Dock Company, 6, 10, 12
154 F.3d 143 (3d Cir. 1999)

Vii
TABLE OF APPENDICES

Appendix A -- Opinion of the United States Court
of Appeals for the Fifth Circuit Dated and Filed
April 22, 2002, 288 F.3d 271; 2002 U.S. App.
Lexis 7410

Appendix B — Opinion and Order of the United States
Court of Appeals for the Fifth Circuit, Dated and Filed
on May 21, 2002, Denying Rehearing, 2002 U.S. App.
Lexis 10979

Appendix C — Opinion and Order of the United
States District Court, Dated July 20, 2000, and
Entered on July 21, 2000, Granting Final Judgment
in Favor of Milfred J. Nunez, 108 F. Supp.2d 656;
2000 U.S. Dist. Lexis 16530.

Appendix D — Opinion and Order of the United States
District Court, Dated May 17, 2000, and Entered on
May 18, 2000, Granting Summary Judgment in Favor
of Milfred J. Nunez (Unreported).

Appendix E — Opinion and Order of the United States
District Court, Dated November 29, 1999, and Entered
on November 30, 1999, Denying the Motion for
Summary Judgment Filed by Clarendon America
Insurance Company (Unreported)

Appendix F — Affidavit of Milfred Nunez Filed on
August 30, 1999, in Opposition to the Motion for
Summary Judgment Filed by Clarendon America
Insurance Company

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9a

10a

29a

36a

42a

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Petitioners respectfully petition for a writ of certiorari to
review the judgment of the Fifth Circuit Court of Appeals in this
case.

OPINIONS BELOW

The decision of the Fifth Circuit appears at appendix A and is
reported at 288 F.3d 271 (5™ Cir. La. 2002). The denial of
rehearing (App. B) is reported at 2002 U.S. App. LEXIS 10979.
The District Court opinions appear at appendices C, D, and E.
Only the first is reported at 108 F.Supp.2d 656; 2000 U.S. Dist.
LEXIS 16530 (E.D. La. 2000). The others are unreported.

GROUNDS FOR JURISDICTION
This Honorable Court has jurisdiction in this cause pursuant
to 28 U.S.C. §§ 1254(1), 2101(c). The United States Court of

Appeals for the Fifth Circuit rendered the decision attached on
April 22, 2002. Rehearing was denied on May 21, 2002.

STATUTE INVOLVED
46 U.S.C. § 688(a) reads as follows:
Recovery for injury to or death of seaman

(a) Application of railway employee statutes;
jurisdiction. Any seaman who shall suffer personal injury
in the course of his employment may, at his election,
maintain an action for damages at law, with the right of
trial by jury, and in such action all statues of the United
Siates modifying or extending the common-law right or
remedy in cases of personal injury to railway employees
shall apply; and in case of the death of any seaman as a
result of any such personal injury the personal
representative of such seaman may maintain an action for
damages at law with the right of trial by jury, and in such
action all statutes of the United States conferring or
regulating the right of action for death in the case of

2

railway employees shall be applicable. Jurisdiction in
such actions shall be under the court of the district in
which the defendant employer resides or in which his
principal office is located.

STATEMENT OF THE CASE

Petitioner, Milfred J. Nunez, is a seaman and a member of the
crew of the M/V DREDGE BATON ROUGE and its associated
flotilla of vessels (push boat, crew boat, flat boat, material barge)
which were used to perform dredging projects for private
employers and the Corps of Engineers at various locations in
Louisiana and in Florida. Nunez was injured while in the course
and scope of his seaman’s duties as the dredge dump foreman.

.
A. 2 sequences =p : DClOW

- The decision of the Fifth Circuit unfairly granted summary
judgment on appeal to deny seaman status to petitioner, who was
a member of the crew of a dredge and support vessels, and who

the essential service of supervising the soil disposal,
after the District Court had granted summary judgment in his
favor and despite the existence of material facts that should have
required remand and a trial on contested issues of fact, thus
removing the important factual issue of seaman status from the
trier of fact.

B. Proceedings Below
As of September 4, 1997, the M/V DREDGE BATON
ROUGE had been engaged for about three months in dredging a
section of the Florida Intracoastal Waterway for the Corps of
Engineers.

On that day, Nunez was at the dumpsite instructing his
assistant, Brian Guillot, to add a pipe connection to prevent the
dredged silt from going back into the waterway. Nunez testified
that he tried to reach Guillot to assist him, but he started sinking

3

in the mud as he moved toward Guillot.' In order to escape, he
climbed onto the back of a track hoe, but when he attempted to
walk across the left track, the housing of the track hoe rotated,
causing the body of the machine to hit Nunez's left shoulder and
throw him approximately twenty feet in the air. Nunez suffered
serious injuries as a result.

Nunez sued B&B and its insurer, Clarendon America
Insurance Company, asserting claims for negligence under the
Jones Act, and unseaworthiness, maintenance, and cure under
general maritime law. B&B and Clarendon moved for summary
judgment, arguing that Nunez was not a seaman under the Jones
Act, which the District Court denied.? Nunez’s motion for
summary judgment on the same issue was granted, with the
District Court holding that Nunez was a seaman as a matter of
law.’ After a trial, at which no evidence was adduced relating to
seaman status because of the successful summary judgment, the
court awarded Nunez damages and entered final judgment.‘
Clarendon appealed, and Nunez cross appealed the reduction of
his award by the amount of a settlement with another defendant.

The United States Court of Appeals for the Fifth Circuit
reversed the granting of Nunez’s motion for summary judgment
on seaman status and instead granted judgment in favor of the
employer and its insurer.’ The timely motion for panel rehearing
was denied on May 21, 2002.

' App. C., 16a.
? App. E.
> App. D.

* App. C.
* App. A.

4

C. Statement of the Pertinent Facts

At the time of the accident, Nunez had been employed as a
crew member by B&B for approximately two years and was
permanently assigned to the M/V DREDGE BATON ROUGE.
Nunez began his work with B&B as a roustabout and an operator
on the rig with occasional responsibility for running the crewboat.
The dredge’s crew consisted of two leadermen, who operated the
barge; the crewboat operator; the dump foreman (the title which
Nunez had at the time of the accident); and the roustabout,
Guillot, who assisted the dump foreman. During the two years
that he worked for B&B, Nunez performed repair work on a
small, unnamed, twelve-inch dredge for approximately two
months; assisted in the construction of the M/V DREDGE
BATON ROUGE for approximately ten months and worked on
dredging assignments on the Mississippi River and in Florida.
Nunez worked twelve hour shifts when the dredge was in
operation. He took vacation time when the dredge was being
moved from one jobsite to another because he did not participate
in transporting the vessel to the new dredge site.

Nunez traveled over water to and from the M/V DREDGE
BATON ROUGE to report on the dump site’s status and operated
various B&B owned vessels. He occasionally ate his meals on the
dredge; however, he did not sleep on the vessel during his
employment because there were no living quarters.

At the Florida location, Nunez was required to lay ten miles
of pipeline, which was carried to the site by barge and by truck as
part of the project to dredge a section of the Intracoastal
Waterway. The pipeline was ten miles long, because it snaked
around corn and cotton fields that had to be avoided. His duties
included operating a survey boat, operating a flat boat, operating
a tugboat, fixing the pontoon line in the river between the dredge
and the dump site, shifting the two swing anchors in the river to
enable the vessel to move, building levees surrounding the dump

5

sites near the edge of the river, and loading and unloading pipe
from the vessel during dredging operations. At least twice a day
the crew and the dump foreman made the approximately hour-
long trip between the vessel and the river bank.

The track hoe, which was positioned on land, was used to lift
the pipe in a sling and transfer it to the banks of the waterway.
When the dredge arrived, Nunez made pontoon connections
between the pipeline and the cutter head on the dredge in order to
pump out the Intracoastal Canal.

Nunez worked on the Florida assignment approximately eight
weeks before he was injured. After the injury, he worked light
duty operating a crew boat full time for the same employer until
his employment was terminated.°

In his Affidavit, Milfred Nunez states:’

During most of my two year employment with B&B, I
held a position titled “dump foreman”, and I was also an
operator, a roustabout and a deck hand. I was responsible
for the operations of the dump sites, whether they were
ten miles inland or an island in the river. My duties also
included operating a crew boat, operating a flat boat,
operating a tugboat, fixing the pontoon line in the river
between the dredge and the dump site, shifting the two
swing anchors in the river to enable the dredge to move,
building levees surrounding the dump sites near the edge
of the river, and loading and unloading pipe from the
dredge during dredging operations. I reported to my
supervisor aboard the M/V DREDGE BATON ROUGE at
least twice each day. My duties required me to be on a

© This is nearly verbatim from the opinion and order granting summary
judgment, footnotes omitted, Appendix D, 33a-34a.

7 (R. 109, App. F, 42a-43a, emphasis added)

6

ee ————

vessel from 10 to 60 percent of the time I spent working
on B&B projects.

Mr. Nunez’s duties included building the dump sites, (R.
464), ultimate responsibility for the operation of the dump sites,
(R. 323), changing dump sites, (R. 463), unloading and loading
pipe from the barge, (R. 367) and repairing the pontoon line in
the river. (R. 374, 459, 109). His duties required constant daily
travel by vessel to and from the dredge from the dump site, as
well as working in the area in the river between the shore and the
dredge. (R. 381, 384, 459). For these reasons, Mr. Nunez had an
assistant, Brian Guillot, who stayed at the dump site and used a
radio to call him on the dredge regarding problems at the dump
site. (R. 325). Mr. Nunez reported to his supervisor aboard the
M/V DREDGE BATON ROUGE at least twice each day. Mr.
Nunez was required to travel over the water from the shore to the
dredge, and then from the dredge to the dump site every morning
and evening during the project. (R. 739). The M/V- BATON
ROUGE was his base of operation.

Milfred Nunez’s Affidavit concerning his duties that did not
take place on land* is supported by the Affidavit of Roland
Nunez, B&B’s superintendent (R.738), who confirmed that
Milfred Nunez came aboard the dredge M/V DREDGE BATON
ROUGE three to four times each day to get instructions, and

® The site of a seaman’s injury, here at one of the dredge dump areas,
does not affect recovery if the injured person is, in fact, a seaman.
Ardoin v. J. Ray McDermott, Inc., 641 F.2d 277, 282 (Sth Cir. 1981).
This is because Nunez’s specific activity at the time of his accident is
not dispositive of the issue of seaman status. Shade v. Great Lakes
Dredge & Dock Co., 154 F.3d 143, 149 (3d Cir. 1998); Bertrand v.
International Mooring & Marine, Inc., 700 F.2d 240 (C.A.5 1983), cert.
denied, 464 U.S. 1069, 79 L.Ed.2d 212, 104 S.Ct. 974 (1984). Itis well
established that the injury does not have to happen on the vessel. Dean
v. McKie Co., 771 F.Supp. 466, 471 (D. Mass. 1991).

7

traveled by vessel twice each twelve-hour shift to the dump site,
which required him to be in a B&B vessel a minimum of an hour
and a half and as much as three hours per shifi (R.738). They both
stated that Mr. Nunez worked full time on B&B’s dredges (the
twelve-inch dredge and the M/V DREDGE BATON ROUGE)
during various repair projects that spanned from two weeks to
two months, and regularly operated B&B crew boats, even on a
full-time basis. (R. 109, 110, 738, 739.)

As Milfred Nunez explained, “the fewer problems that arose
at the dump site, the more time I spent on the dredge or handling
the pontoon line between the river bank and the dredge” which
required him to be “trucking back and forth” to the dredge “on a
little vessel.” (R. 109 & 379:1.)

When the vessels were under repair between projects, Nunez
worked on the B&B dredges one-hundred percent of the time
getting them ready for the next project (R. 334:4-19, 339:17,
363:9-17, 364:1, 365:4). He operated the B&B crew boat and flat
boat multiple times daily, and as much as one-hundred percent of
his time on the job (R. 329:15, 331:15, 379:9, 354:8, 412:8-23).

His work required traveling over water on a crew boat to and
from the M/V DREDGE BATON ROUGE for far more than ten
percent of his work shift. (R. 325:19, 329:8-17, 332:10, 359:14,
367:10, 380:23, 412:11-20). Nunez was responsible for the
pontoon line, which required that he work daily in the river on a
crew boat, either making or fixing the pontoon line between the
dredge and the shore, which, at least on one occasion, was twice
as long as the pipeline on land (R. 348:17-25, 374:7-21, 459:19,
463:4).

REASONS FOR GRANTING THE WRIT

The Decision of the Fifth Circuit Court of Appeals, on an
Important Federal Question, Conflicts With Decisions of This
Court and With Those of Other Circuits.

8
A. The Issue as Framed by the Court of Appeals

It is uncontested that Nunez's job as dump foreman
contributed to the function and mission of the vessel. An
essential function of a dredge is to remove soil and silt from

_ the seabed of the waterway where the dredge is working. That
soil must be disposed of in an orderly fashion on the shore for
the dredge to perform its function. Because Nunez was
performing this essential job that allowed the dredge to
perform her work, the first prong of the Supreme Court's
seaman status test is satisfied. We therefore turn our attention
to the second prong: whether Nunez's connection to the
dredge BATON ROUGE was substantial in terms of both it
[sic] duration and its nature.”

That court further stated that:

Nunez points to the Robison test authorizing a finding
that the employee has the requisite connection to a vessel
if he was: . . . ‘assigned permanently to a vessel...” or. .
.' performed a substantial part of his work on the vessel.’
He argues that this test is disjunetive and because he was
permanently assigned to the dredge BATON ROUGE as
the dump foreman the District Court correctly found that
he had the requisite connection to a vessel. We disagree.
This interpretation ignores the Supreme Court's teaching
in Chandris that a seaman's connection with a vessel
includes a temporal requirement, i.e., that the worker
spend a substantial part of his work time aboard the
vessel. Were we to accept Nunez's argument, we would
remove this requirement. In other words, Nunez would
have us adopt a rule— contrary to Chandris's directions —
that any worker whose duties contribute to the function or
the mission of the vessel is a seaman without regard to

* App. A., 4a-5a.

Bs ji arial

9

whether that worker ever sets foot on the vessel. Such an
interpretation would introduce a host of land-based
employees as potential Jones Act seamen simply because
their work supports the vessel's mission."°

B. The Correct Resolution of the Substantiality Issue

In the District Court, Clarendon also argued “that Nunez’s
connection with the M/V DREDGE BATON ROUGE was not
substantial because he worked ninety percent of his time on
land.””'' However, the District Court concluded:

Unlike Loyd, Nunez was a member of the crew, he played
an integral part in connecting the pipeline to the dredge, and
he worked on the waterway between the dredge and the dump
site. Therefore, Nunez, unlike the plaintiff in Loyd, performed
work that exposed him to the perils of the sea.

Taking into account the unique nature of the vessel and
the work performed, Nunez had a substantial connection to
the vessel. The site of Nunez’s injury and the necessity that
the work of the vessel required Nunez to spend a large portion
of his time on land does not bar him from his Jones Act
seaman status. Accordingly, the motion for summary

_judgment is granted.”

On the other hand, the Court of Appeals simply accepted the
Clarendon argument as uncontested, despite affidavit and
deposition evidence to the contrary:

Although he traveled across water to the dredge twice a day to
report to his supervisor and occasionally ate meals onboard, it is

'° App. A., 7a.
"! App. D., 34a.
'? App. D., 35a.

10

uncontested that Nunez performed ninety-percent of his work on
land.”

The Fifth Circuit concluded:

If we were to accept Nunez's argument, we would
expand the ranks of potential Jones Act seamen to all
land-based employees who further the mission or function
of the vessel, from salesmen to payroll clerks to corporate
executives. Neither the law of the Supreme Court or of
this Circuit will permit such a bizarre result.“

This was error because Nunez was not a land-based
employee. He was working “‘at sea” in the continuing service of
the M/V DREDGE BATON ROUGE to whom he owed
allegiance. He could not have been land based because there was
no land base.

C. The Fifth Circuit’s Decision Was Error and Conflicts With
Decisions of Two Other Circuits and the Supreme Court

In applying the uncontested material facts, the District Court
correctly concluded that, due to the unique nature of the dredge
and the work performed, Nunez was a seaman as a matter of law.
The failure of the Court of Appeals to affirm this decision under
the undisputed facts found by the District Court constituted an
error of law and establishes a conflict with the decisions of the
Third Circuit Court of Appeals in Shade v. Great Lakes Dredge &
Dock Company, 154 F.3d 143 (3d Cir. 1999) and Foulk v. Donjon
Marine Company, Inc., 144 F.3d 252 (3d Cir. 1997) and the
decisions of the Ninth Circuit Court of Appeals in Delange v.
Dutra Construction, Co., Inc., 183 F.3d 916 (9th Cir. 1999) and
Lorimer v. Great Lakes Dredge & Dock Company, 2002 U.S.
App. LEXIS 10775 (9th Cir. 2002), and this Court’s decisions in

'3 App. A., 2a.
App. A., 8a.

11

Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 137 L.Ed.2d
800, 117 S.Ct. 1535 (1997), Chandris, Inc. v. Latsis, 515 U.S.
347; 115 S.Ct. 2172; 132 L.Ed.2d 314 (1995), and McDermott
International, Inc. v. Wilander, 498 U.S. 337; 111 S.Ct. 807; 112
L.Ed.2d 866 (1991)

Pretermitting for the moment the issue of whether or not only
ten percent of Nunez’s work was performed on the dredge itself,
it is apparent that Nunez served on an identifiable fleet of vessels,
which places him within the rule “allowing seaman status for
those workers who have the requisite connection with an
identifiable fleet of vessels, a finite group of vessels under
common ownership or control.” Papai, 520 U.S. at 556 and 560.

Jones Act coverage is confined to seamen, those workers who
face regular exposure to the perils of the sea. An important part of
the test for determining who is a seaman is whether the injured
worker seeking coverage has a substantial connection to a vessel
or a fleet of vessels, and the latter concept requires a requisite
degree of common ownership or control. The substantial
conriection test is important in distinguishing between sea-based
and land-based employment, because land-based employment is
inconsistent with Jones Act coverage. This was the holding in
Chandris, and we adhere to it here."*

In Papai, 520 U.S. at 555, this Court further noted:

For the substantial connection requirement to serve its
purpose, the inquiry into the nature of the employee’s
connection to the vessel must concentrate on whether the
employee’s duties take him to sea. This will give
substance to the inquiry both as to duration and nature of
the employee’s connection to the vessel and be helpful in
distinguishing land-based from sea-based employees.

'S Papai, 520 U.S. at 560.

12

In Wilander, 111 S.Ct. at 817, this Court stated:

The key to seaman status is employment-related
connection to a vessel in navigation. We are not cailed
upon here to define this connection in all details, but we
hold that a necessary element of the connection is that a
seaman perform the work of a vessel. See Maryland
Casualty Co. v. Lawson, 94 F.2d 190, 192 (C.A.5 1938)
("There is implied a definite and permanent connection
with the vessel, an obligation to forward her enterprise"),
cited approvingly in Norton, 321 U.S. at 573. In this
regard, we believe the requirement that an employee's
duties must ‘contribute to the function of the vessel or to
the accomplishment of its mission’ captures well an
important requirement of seaman status. It is not
necessary that a seaman aid in navigation or contribute to
the transportation of the vessel, but a seaman must be
doing the ship's work.

Plaintiff-Shade, like the roustabout assisting Nunez, was
primarily a shoreman, although, like Nunez, Shade did other
duties which contributed to the function of the vessel. Like
Nunez, Shade presented evidence that he worked on other vessels
in the dredging fleet. In denying a motion for summary judgment
as a matter of law, the Third Circuit stated, 154 F.3d at 150:

Additionally, even Shade's duties on the beach were
not unrelated to the work of a vessel in navigation;
instead, they contributed to the purpose of the dredging
operation. Viewing this evidence in a light most favorable
to Shade, a reasonable juror could find that Shade's job
responsibilities at Cape May consisted of a single job
assignment and contributed to the function of a vessel in
navigation, thereby satisfying the first requirement of the
Chandris test. Thus, because Shade presented sufficient
evidence for a reasonable juror to find in his favor, the

13

District Court correctly denied Great Lakes' motion for a
judgment as a matter of law.

In Foulk, 144 F.3d at 258, the substantiality of the nature of
the work performed (diving), even when combined with the
shortness of the duration (accident on the first day of a ten-day
hitch), still permitted the Third Circuit to reverse a summary
judgment denying seaman status because:

The durational element cannot be answered by an
absolute measure. It is the temporal element and the
nature of the activities performed that, taken together,
determine seaman status. Chandris, 115 S.Ct. at2190-91.
While the Supreme Court did adopt "the centerpiece of
the formulation used by the Court of Appeals” in that. case
(the two-part test), and did find it "important that a
seaman's connection to a vessel. . . be substantial in both
respects (duration and nature)," Jd. at 2191, the Court
specifically rejected "the temptation to create detailed
tests to effectuate the congressional purpose, tests that
tend to become ends in and of themselves.” Jd. at 2190.
To define substantial duration by an absolute number
would be to create such a test. 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,” Jd.

at 2191, and the two-part test is merely an aid in making
that determination.

Plaintiff-Delange was a union carpenter working on a pile
driving project constructing an offshore navigational aid.
Although the barge was moved only four times in his five month
duty, an adverse summary judgment was reversed because a jury
could find his varied duties and the duration of his employment
made him a seaman, Delange v. Dutra Construction Co., Inc.,
183 F.3d at 916, 920.

a

id

Because, “Under Ninth Circuit precedent, a worker's duties
take him to sea if they are ‘inherently vessel related’ or ‘primarily
sea-based activities,’” the decision of the Benefits Review Board
finding Gerald Lorimer to be a seaman as the deckhand of a
dredge was affirmed. Lorimer, 2002 U.S. App. LEXIS 10775, *4.

The Third and the Ninth Circuits have correctly construed and
applied this Court’s test. The failure of the Court of Appeals to do
so in this case establishes a conflicting and contrary precedent.

D. Alternatively, the Summary Judgment Rendered
by the Court of Appeals Was Erroneous

Although “seaman” is a statutory term, the interpretation of
which is a question of law, “the inquiry into seaman status is of
necessity fact specific; it will depend on the nature of the vessel
and the employee's precise relation to it.” Wilander, 111 S.Ct. at
817. Consequently, this Court has held that “seaman status under
the Jones Act is a question of fact fur the jury.” Wilander, 111
S.Ct. at 817. This holding was reinforced in Chandris, wherein
this Court stated that “questions of seaman status under Jones Act
is normally for the fact finder to decide.” Chandris, 115 S.Ct. at
2172. The District Court, who was the ultimate trier of fact, had
already so found. Certainly, this was a reasonable conclusion, and
it should have been affirmed.

Nunez, arguably a seaman, and as such, considered a ward of
the Court, is in the unusual posture of having never had an
opportunity to present evidence to the trier of fact on seaman -
status. Given the fact that summary judgment on the issue of
seaman status was granted in Nunez’s favor before trial and the
matter reversed and not remanded for an evidentiary hearing on
appeal, Nunez has been denied an opportunity to present the
evidence regarding seaman status to the trier of fact, despite the
substantial evidence in the record that would militate in favor of a
finding of seaman status. The evidence adduced for the District
Court regarding seaman status could not reasonably be considered

15

uncontroverted in defendant’s favor if the facts were viewed in
the light most favorable to Nunez. Even if the Court determines
that the original summary judgment that Nunez was granted on
the issue of seamen status was inappropriate, at a minimum, the
proper remedy would have been a remand for an evidentiary
hearing by the trier of fact on that issue.

Moreover, this Court has not approved summary judgments
that rest on credibility determinations. Celotex Corp. v. Catrett,
477 U.S. 317 (1986) and Anderson v. Liberty Lobby, Inc., 477

U.S. 242 (1986). Thus, it was procedurally inappropriate for the
Court of Appeals to render summary judgment in this case.

CONCLUSION

As did the District Court in denying Clarendon’s motion for
summary judgment," it, as the trier of fact, could reasonably have
found:

Clarendon does not dispute that B&B's barges are vessels
in navigation, that Nunez was a member of the six-man
crew employed by B&B at the three locations where
dredging took place, and that Nunez's duties contributed
to accomplishing the function of the vessel in dredging
silt from waterways. Further, for two years, Nunez played
an integral part in connecting and maintaining the pipeline
through which the dredged material was delivered to the
shore. His duties in the service of the dredge required him
to work on the waterway between the dredge and the
dump site and exposed him to the perils of the sea.
Contrary to Clarendon's arguments, the questions
concerning the percentage of time spent on the dredge, the
meal arrangements, and sleeping accommodations are not
determinative of seaman status. Additionally, the site of a

'® App. E, 41a.

16

seaman's injury does not bar him from his Jones Act
seaman status.

Given the facts of this case, this was both a permissible and a
correct conclusion and certainly not a “bizarre result.” The
contrary result reached by the Court of Appeals deviates from the
established jurisprudence of this Court and creates a conflict
among the Circuits that should be resolved by this Court. This
Court should grant certiorari, reverse the Fifth Circuit, reinstate
the final judgment of the District Court, and remand this case to
the Court of Appeals for resolution of the issue of whether or not
the District Court was in error in reducing the judgment by fifty
percent on account of the settlement with another defendant.

Alternatively, this Court should grant certiorari, reverse the
Fifth Circuit and remand the case to the District Court for an
evidentiary hearing by the trier of fact on the issue of seaman
status.

For all these reasons, Petitioner requests that this Court grant
his Petition for Certiorari.
Respectfully submitted,

Louis R. Koerner, Jr.

Koerner Law Firm -

Louisiana Bar 7817

1204 Jackson Avenue

New Orleans, Louisiana 70130-5130
Telephone: (504) 5&1-9569
Telecopier: (504) 566-0546

email: louis@koemer-law.com
URL: http://www.koerer-law.com

Of Counsel:

Pete Lewis

3631 Canal Street

New Orleans, LA 70119

la

APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
DATED AND FILED APRIL 22, 2002

MILFRED J. NUNEZ Plaintiff - Appellee - Cross-Appellant
VERSUS B & B DREDGING, INC. ET AL, Defendants;
CLARENDON AMERICA INSURANCE COMPANY,
Defendant - Appellant - Cross-Appellee
No. 00-30993
UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
288 F.3d 271; 2002 U.S. App. LEXIS 7410
April 23, 2002, Decided
SUBSEQUENT HISTORY: [**1] Rehearing Denied May 21,

2002, Reported at: 2002 U.S. App. LEXIS 10979.

PRIOR HISTORY: Appeals from the United States District

Court For the Eastern District of Louisiana, New Orleans. 98-

CV-2572-S. Mary Ann Vial Lemmon, US District Judge., Nunez

v. B & B Dredging, Inc., 108 F. Supp. 2d 656 (E.D. La. 2000).
DISPOSITION: Reversed and rendered.

[*273] W. EUGENE DAVIS, Circuit Judge:

The question in this case is whether a land-based employee
who is permanently assigned to work in the service of a vessel
but who spends only 10% of his time working aboard the vessel
may enjoy seaman status. We hold that such an employee is not a
seaman.

I.

Milfred J. Nunez was employed by B&B Dredging, Inc.
(B&B) for two years. During [*274] the last 18 months of his
employment, his work was in relation to the M/V DREDGE
BATON ROUGE. He first worked on the construction of the
M/V DREDGE BATON ROUGE in the shipyard. After she was
commissioned and began dredging work, he followed the dredge
as dredge dump foreman. In this role, Nunez oversaw the
discharge of dredge soil on or near the bank of the waterway in

2a

which the dredge was operating. This included building,
monitoring, and changing dredge spoil sites, where the dredge
empties silt into piles on the shore. Although he traveled across
water to the dredge twice a day to report to his supervisor and
occasionally ate meals onboard, [**2] it is uncontested that
Nunez performed 90% of his work on land.

On September 4, 1997, the M/V BATON ROUGE had been
engaged for about three months in dredging a section of the
Florida Intercoastal Waterway for the U.S. Army Corps of
Engineers. While performing his duties on that date as dump
foreman, Nunez began to sink into the silt. In order to escape, he
climbed onto the back of a track hoe, but when he attempted to
walk across the left track, the housing of the track hoe rotated,
causing the body of the machine to hit Nunez's left shoulder and
throw him approximately twenty feet in the air. Nunez suffered
serious injuries as a result.

Nunez sued B&B and its insurer, Clarendon America
Insurance Company (Clarendon), asserting claims for negligence
under the Jones Act, nl and unseaworthiness, maintenance, and
cure under general maritime law. n2 B&B and Clarendon moved
for summary judgment, arguing that Nunez was not a seaman
under the Jones Act, which the court denied. Then Nunez moved
for summary judgment on the same issue; the court granted the
motion, holding that Nunez was a seaman as a matter of law.
After a trial, the court awarded Nunez damages and entered final
judgment. [**3] B&B and Clarendon then lodged this appeal.

- -Footnotes- -

nl 46 U.S.C. §§ 688 et seq.

n2 Nunez also sued the owner, operator, and insurer of the
track hoe. The owner settled with Nunez before trial. After trial,
the district court held that the operator of the track hoe had not
abandoned his relationship with the hoe's owner and had worked

3a

—

in furtherance of the business of both the owner and B&B. Thus,
the court held both companies jointly liable for his negligence,
and since the owner had already settled for its half, it reduced
Nunez's damage award by half. Nunez cross-appeals this
reduction. Our holding on the issue of seaman status renders this
cross-appeal irrelevant.

- -EndFootnotes- -

I. ?

B&B argues that the district court erred by finding that
Nunez was a seaman as a matter of law. We agree with B&B for
the reasons that follow.

A.

Over 40 years ago this Circuit in Offshore Company v.
Robison established a test for seaman status. n3 We stated that:
there is an evidentiary basis for a Jones[**4] Act case to go to
the jury: (1) if there is evidence that the injured workman was
assigned permanently to a vessel (including special purpose
structures not usually employed as a means of transport by water
but designed to float on water) or performed a substantial part of
his work on the vessel; and (2) if the capacity in which he was
employed or the duties which he performed contributed to the
function of the vessel or to the accomplishment of its mission, or
to the operation or welfare of the vessel in [*275] terms of its
maintenance during its movement or during anchorage for its
future trips. n4

- -Footnotes- -

n3 Robison, 266 F.2d 769, 779 (Sth Circ. 1959).

n4 Id. at 779. See also Palmer v. Fayard Moving and
Transp. Corp., 930 F.2d 437, 439 (Sth Cir. 1991) (noting that the
Supreme Court endorsed the Robison test in McDermott Int'l.,
Inc. v. Wilander, 498 U.S. 337, 354-55, 111 S. Ct. 807, 817
(1991)).

- -EndFootnotes- -
The Supreme Court in a series [**5] of cases beginning in

4a

1991 essentially accepted this Circuit's seaman status test. n5 In
Chandris v. Latsis, n6 the Court established a two-part test to
determine seaman status that essentially tracked this Circuit's test
in Robison and this Court's 1986 en banc opinion in Barrett v.
Chevron. n7

- -Footnotes- -

nS See Wilander; Chandris, Inc. v. Latsis, 515 U.S. 347,
368, 115 S. Ct. 2172, 2190 (1995); and Harbor Tug and Barge
Co. v. Papai, 520 U.S. 548, 554, 117 S. Ct. 1535, 1540 (1997).

n6 Chandris, 515 U.S. 347, 115 S. Ct. 2172, 132 L. Ed. 2d
314 (1995).

n7 Barrett, 781 F.2d 1067 (Sth Cir. 1067) (en banc).

- -EndFootnotes- -

The Supreme Court stated the test as follows:

First . . . an employee's duties must contribute to the function of
the vessel or to the accomplishment of its mission . . . Second,
and most important for our purposes here, a seaman must have a
connection to a vessel in navigation (or to [**6] an identifiable
group of such vessels) that is substantial in terms of both its
duration and its nature. n8

- -Footnotes- -

n8 Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340,
346 (Sth Cir. 1999), quoting Harbor Tug, 520 U.S. at 554, 117
S. Ct. at 1540 (1997) (quoting Chandris, 515 U.S. at 368, 115 S.
Ct. at 2190 (1995)) (citations and internal quotation marks
omitted).

- -EndFootnotes- -

It is uncontested that Nunez's job as dump foreman
contributed to the function and mission of the vessel. An
essential function of a dredge is to remove soil and silt from the
seabed of the waterway where the dredge is working. That spoil
must be disposed of in an orderly fashion on the shore for the

Sa

dredge to perform its function. Because Nunez was performing
this essential job that allowed the dredge to perform her work,
the first prong of the Supreme Court's seaman status test is
satisfied. We therefore [**7] turn our attention to the second
prong: whether Nunez's connection to the dredge BATON
ROUGE was substantial in terms of both it duration and its
nature.

B.

We are satisfied that the Supreme Court's analysis in
Chandris v. Latsis resolves this question. In Chandris, plaintiff
Latsis sued his employer and sought recovery as a seaman under
the Jones Act. Latsis was a salaried engineer responsible for
maintaining and updating the electronic and communications
equipment on Chandris' fleet of six passenger ships. He planned
and directed ship maintenance from shore and was also required
to take voyages on the ships in the fleet to perform his job. He
also spent some time supervising the vessels' refurbishment in
the shipyard.

The Court clarified what "employment related connection to
a vessel in navigation" is necessary for a maritime worker to
qualify as a seaman under the Jones Act.

The Court first discussed the fundamental purpose of the
requirement that a seaman have a substantial connection to his
vessel:

. .. Most important for our purposes here, a seaman must have a
connection to a vessel in navigation (or to an identifiable group
of such vessels) that is substantial[**8] [*276] in terms of both
its duration and its nature. The fundamental purpose of this
substantial connection requirement is to give full effect to the
remedial scheme created by Congress and to separate the sea-
based maritime employees who are entitled to Jones Act
protection from those land-based workers who have only a
transitory or sporadic connection to a vessel in navigation, and
therefore whose employment does not regularly expose them to

6a

the perils of the sea. This requirement therefore determines
which maritime employees in Wilander's broad category of
persons eligible for seaman status because they are "doing the
ship's work," are in fact entitled to the benefits conferred upon
seamen by the Jones Act because they have the requisite
employment-related connection to a vessel in navigation. n9

- -Footnotes- -

n9 Chandris, 515 U.S. at 368-69, 115 S. Ct. at 2190 (internal
citation omitted).

- -EndFootnotes-- -

The Court emphasized that the worker's connection to the
vessel must be substantial in both its duration and nature. The
Court explained: [**9]

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.
nlo
- -Footnotes- -
nl10 Id. at 370, 115 S. Ct. at 2190-91.
- -EndFootnotes- -

The Court disagreed with the Court of Appeals that the
seaman's connection to a vessel had no temporal requirement.
The Court stated "a maritime worker who spends only a small
fraction of his working time onboard a vessel is fundamentally
land based and therefore not a member of the vessel's crew,
regardless of what his duties are." nl1 The Court stated further
that "generally, the Fifth Circuit seems to have identified an
appropriate rule of thumb for the ordinary case: a worker who
spends less than about 30% of his time in the service of a vessel

Ta

in navigation should not qualify as a seaman under the Jones
Act." nl12
- -Footnotes- -
nll /d. at 371, 115 S. Ct. at 2191.
nl2 Id.
- -EndFootnotes- -

Nunez points to the Robison test authorizing a finding that
the employee has the requisite connection to a vessel if he was: .
. . "assigned permanently to a vessel. . ." or . . ."performed a
substantial part of his work on the vessel." He argues that this
test is disjunctive and because he was permanently assigned to
the dredge BATON ROUGE as the dump foreman the district
court correctly found that he had the requisite connection to a
vessel. We disagree. This interpretation ignores the Supreme
Court's teaching in Chandris that a seaman's connection with a
vessel includes a temporal requirement, i.e. that the worker
spend a substantial part of his work time aboard the vessel. Were
we to accept Nunez's argument, we would remove this
requirement. In other words, Nunez would have us adopt a rule -
- contrary to Chandris's directions -- that any worker whose
duties contribute to the function or the mission of the vessel is a
seaman without regard to whether that worker ever sets foot on
the vessel. Such an interpretation would introduce a host of land-
based employees as potential [**11] Jones Act seamen simply
because their work supports the vessel's mission.

In Palmer v. Fayard Moving and Transp. Corp., a land-
based employee such as Nunez sought recovery under the Jones
[*277] Act. nl3 Ms. Palmer, the plaintiff in that case, was a
land-based public relations officer whose job was entirely
devoted to promoting a single vessel, the M/V FRANCIS
FAYARD. Ms. Palmer's duties included writing letters
promoting the use of the vessel, acting as liaison with clients,
researching the history of the ship, and setting up trips on the
vessel. She spent approximately 19% of her working hours

8a

aboard the ship preparing the social areas of the ship and
cleaning it before and after social events. Despite the fact that
Palmer -- like Nunez -- spent 100% of her time furthering the
mission or function of the vessel, we concluded that she was not
eligible for seaman status because the time she spent aboard the
vessel was insubstantial.
- -Footnotes- -

n13 Palmer, 930 F.2d 437 (5th Cir. 1991).
- -EndFootnotes- -

If we were to accept[**12] Nunez's argument, we would
expand the ranks of potential Jones Act seamen to all land-based
employees who further the mission or function of the vessel,
from salesmen to payroll clerks to corporate executives. Neither
the law of the Supreme Court or of this Circuit will permit such
a bizarre result.

Il.

For a worker such as Nunez who divides his work time
between the shore and the vessel, he must demonstrate that he
spends a substantial part of his work time aboard the vessel in
order to demonstrate that he has the requisite connection to a
vessel in order to qualify for seaman status. Nunez spent
approximately 10% of his work time aboard the dredge BATON
ROUGE. Because this is an insubstantial part of his work time,
he does not qualify for seaman status. Because Nunez is not a
seaman as a matter of law, we reverse the judgment of the
district court and render judgment in favor of B&B.

REVERSED AND RENDERED

9a

APPENDIX B - OPINION AND ORDER OF THE
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT, DATED AND FILED ON MAY 21,

2002

MILFRED J NUNEZ Plaintiff - Appellee-Cross-Appellant v.
B&B DREDGING INC; ET AL Defendants CLARENDON
AMERICA INSURANCE COMPANY Defendant -Appellant-
Cross-Appellee
No. 00-30993
UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
2002 U.S. App. LEXIS 10979
May 21, 2002, Filed
PRIOR HISTORY: [*1]

Appeals from the United States District Court for the Eastern
District of Louisiana, New Orleans. Nunez v. B & B Dredging,
288 F.3d 271, 2002 U.S. App. LEXIS 7410 (Sth Cir. La. 2002).
DISPOSITION: Petition for rehearing denied.

JUDGES: Before GARWOOD, JOLLY, and DAVIS, Circuit
Judges.

OPINION: ON PETITION FOR REHEARING

PER CURIAM:

IT IS ORDERED that the petition for rehearing is denied.
ENTERED FOR THE COURT:

W. Eugene Davis
United States Circuit Judge

10a

APPENDIX C - OPINION AND ORDER OF
THE UNITED STATES DISTRICT COURT, DATED
JULY 20, 2000 AND ENTERED ON JULY 21, 2000
GRANTING FINAL JUDGMENT IN FAVOR OF
MILFRED J. NUNEZ

CHARLOTTE NUNEZ, WIFE OF AND MILFRED J.
NUNEZ VERSUS B&B DREDGING, INC., CLARENDON
AMERICA INSURANCE COMPANY, A&A TOWING,
L.L.C., ARTHUR PRESTENBACH, SR., AND CREDIT
GENERAL INSURANCE COMPANY
CIVIL ACTION NO: 98-2572 SECTION: "S" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA
108 F. Supp. 2d 656; 2000 U.S. Dist. LEXIS 16530
July 20, 2000, Decided
July 20, 2000, Filed; July 21, 2000, Entered
DISPOSITION: [**1] Judgment entered in favor of Milfred J.

Nunez. B&B entitled to a credit of 50%.
OPINION: [*658] FINDINGS OF FACT AND
CONCLUSIONS OF LAW

I. BACKGROUND

The United States Corps of Engineers engaged B&B
Dredging, Inc. (B&B) and the M/V DREDGE BATON ROUGE
to dredge a waterway along the Intracoastal Canal near Panama
City, Florida. The contract between B&B and the Corps required
B&B to sweep silt from the Intracoastal waterway and to place it
in a spoil area on a nearby island. Milfred J. Nunez was
employed by B&B as a seaman nl and a member of the crew of
the M/V DREDGE BATON ROUGE. Nunez was the foreman
assigned to the dredge dump and was responsible for monitoring
the dredge spoil site where [**2] silt expelled by the dredge was

lla

piled.
- -Footnotes- -

nl The court has previously determined that Nunez was a
seaman, in the course and scope of his employment with B&B,
at the time of his injury.

- -EndFootnotes- -

B&B entered into a contract with A&A Towing, L.L.C. to
furnish a track hoe and an operator to B&B. A&A leased a track
hoe from Beard Equipment Rental; and Arthur Prestenbach, Jr.,
the president of A&A, sent his father, Arthur Prestenbach, Sr., to
operate the leased track hoe. The track hoe, which was
positioned on land, was used to lift and transfer pipe to the banks
of the waterway.

On September 4, 1997, * ..ez was injured when the track
hoe struck him on his left s....ulder. Nunez filed a complaint
against B&B Dredging, Inc. and Clarendon America Insurance
Company, B&B's insurer, asserting claims for negligence under
the Jones Act, 46 U.S.C. § 688 et seq., and unseaworthiness and
maintenance and cure under the general maritime law, and
against A&A Towing, L.L.C., Arthur Prestenbach, Sr., and
Credit General [**3] Insurance Company, A&A's insurer,
asserting claims based on Prestenbach, Sr.'s negligence. n2 A&A
settled before trial for $92,500. The case against B&B;
Clarendon; and Prestenbach, Sr. n3 proceeded to trial without a
jury. The following constitutes the court's findings of fact and
conclusions of law.

- -Footnotes- -

n2 Charlotte Nunez filed a claim for loss of consortium, but
abandoned the claim against B&B at the trial because the Jones
Act does not recognize a claim for loss of consortium.

n3 The claims are against Prestenbach, Sr. personally and to
the extent that he is a borrowed employee of B&B.

- -EndFootnotes- -

Il. DISCUSSION

12a

A. Borrowed employee

Nunez contends that B&B is liable for his injuries under a
theory of respondeat superior because the injuries were caused
by the negligence of B&B's borrowed employee, Prestenbach,
Sr. Before addressing the allegation of negligence, the court must
determine the preliminary question whether Prestenbach, Sr. is
the borrowed employee of B&B.

The following evidence was presented [**4] at trial. Roland
Nunez, n4 the supervisor for B&B, testified that it was his
responsibility to bid and to run every aspect of the B&B jobs.
The contract between A&A and B&B provided for the lease of
one John Deere Excavator with a 2 1/4 yard bucket and an
operator to move pipe and to raise the levees in order to keep the
water from overflowing and going back into the canal. Roland
stated that, although he had qualified people to operate the track
hoe, Prestenbach, Sr. "came with the machine.” The cost of the
track hoe with an operator was $950 per day for a term of two
months. A&A billed B&B the lump sum and paid Prestenbach,
Sr. for the hours that he worked.

- -Footnotes- -

n4 Roland Nunez is Milford Nunez's brother.
- - -End Footnotes- -

The allegation that Roland directed where Prestenbach, Sr.
would work, what [*659] work he was to perform, and how it
was to be performed was supported by the testimony of Brian
Guillot, a deck hand who worked in the excavated pits, who
stated that Prestenbach, Sr. received his orders concerning the
operation of the [**5] excavator from B&B. Prestenbach, Sr. ate
with the crew, stayed with the crew at a local hotel, and traveled
with the crew to the job site; he was expected to remain until the
job ended.

A&A never had a supervisor on the job. Prestenbach, Jr.

13a

stated in his corporate deposition that A&A worked as directed
by B&B and that he spoke with Prestenbach, Sr. only once or
twice during the two-week period that he was on the job. n5

- -Footnotes- -

nS The parties stipulated to the admission of Prestenbach,
Jr.'s testimony in the corporate deposition.

- -EndFootnotes- -

Prestenbach, Sr. spoke to his son about the accident
approximately one week after it happened. Prestenbach, Jr. did
not prepare an accident report because, according to his
testimony, he did not consider his father to be an employee of
A&A. Prestenbach, Jr.'s only visit to the job site was to inquire
why Prestenbach, Sr. had been fired. After Prestenbach, Sr. was
terminated, employees of B&B operated the leased track hoe.

"[A] third person who borrows a worker may become his
employer if [**6] the borrowing employer assumes enough
control over the worker." Guidry v. South Louisiana
Contractors, Inc., 614 F.2d 447, 452 (Sth Cir. 1980). The
borrowed employee doctrine recognizes that
one may be in the general service of another and, nevertheless,

with respect to particular work, may be transferred, with his

own consent or acquiescence, to the service of a third person,
so that he becomes the servant of that person with all the
legal consequences of the new relation.
Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S. Ct. 252, 253,
53 L. Ed. 480 (1909). +o

In Ruiz v. Shell Oil Co., 413 F.2d 310 (Sth Cir. 1969), the
Court of Appeals enunciated nine factors to determirie whether
the borrowed employee doctrine applies:

(1) Who has control over the employee and the work he is
performing, beyond mere suggestion of details or cooperation?
(2) Whose work is being performed?

(3) Was there an agreement, understanding, or meeting of the
minds between the original and the borrowing employer?

14a

(4) Did the employee acquiesce in the new work situation?

(5) Did the original employer terminate his relationship with the
[**7] employee?

(6) Who furnished tools and place for performance?

(7) Was the new employment over a considerable length of
time?

(8) Who had the right to discharge the employee?

(9) Who had the obligation to pay the employee?

Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 616-17 (Sth
Cir. 1986) (citing Ruiz, 413 F.2d at 312-13). The courts place the
most emphasis on the first factor, control over the employee;
however, no single factor or combination is determinative. See
Ruiz, 413 F.2d at 312. n6

- -Footnotes- -

n6 In Gaudet v. Exxon Corp., 562 F.2d 351, 356 (Sth Cir.
1977), the court de-emphasized the control factor and stressed
the fourth, fifth, sixth, and seventh factors as being more
important when the doctrine is used as a defense to tort liability
in the context of a Longshore and Harbor Workers’
Compensation Act case. See Melancon v. Amoco Production
Co., 834 F.2d 1238, 1245 n.12 (Sth Cir. 1988). The court
conceded that the control factor was the most important factor in
the use of the borrowed employee doctrine in respondeat
superior cases. Id.

- -EndFootnotes- - [**8]

Under the first and second Ruiz factors, B&B clearly had
control over Prestenbach, Sr. in performing his work for B&B.
A&A gave no instructions except to [*660] send Prestenbach,
Sr. to B&B's job site to operate the track hoe. Prestenbach, Sr.
performed the work at B&B's work site for the benefit of B&B in
fulfilling its contract with the Corps of Engineers. B&B directed
all aspects of the project and employed its own safety policies.

15a

Moreover, during the period that Prestenbach, Sr. operated the
track hoe for B&B, B&B made his hotel arrangements and
transported him to and from the job site.

Although the contract between A&A and B&B does not
specifically provide under whose control Prestenbach, Sr. was
working, the evidence indicates that it was understood by A&A
that Prestenbach, Sr. would be taking his instructions from
Roland and B&B, in satisfaction of the third factor. Prestenbach,
Sr. understood that A&A was in the business of leasing
equipment and, at times, providing an operator for the
equipment. Further, Prestenbach, Sr. agreed to work for B&B
under its direction, indicating his acquiescence in the
arrangement, as required by the fourth factor.

The fifth factor focuses on [**9] the lending employer's
relationship with the employee during the time of the borrowing.
Although there is no evidence that A&A intended permanently
to terminate its relationship with Prestenbach, Sr., no one from
A&A visited the job site during the time of borrowing, and
Prestenbach, Sr. and Prestenbach, Jr. spoke only a few times.
The fifth factor favors a finding of borrowed employee status.
See Capps, 784 F.2d at 617.

The equipment was leased by A&A from Beard and
furnished to B&B at B&B's job site. The sixth factor appears to
be neutral. :

The three remaining factors weigh in favor of borrowed
employee status. Although the lease agreement with A&A was
for a relatively short term of two months, it was expected that
Prestenbach, Sr. would be employed to operate the track hoe for
the duration of the contract with the Corps of Engineers.
Prestenbach, Sr.'s term was interrupted when B&B exercised its
right to terminate his services at its project. This factor weighs in
favor of borrowed employee status. See Brown v. Union Oil Co.
of California, 984 F.2d 674, 678 (Sth Cir. 1993) (one month is a
sufficiently long work period). B&B had the right to fire [**10]

l6a

Prestenbach, Sr. The captain of the dredge did in fact fire him
when the dredge was shut down because Prestenbach, Sr. was
unable to perform his work of keeping up the levees
satisfactorily. B&B's right to terminate Prestenbach, Sr.'s
services on this job satisfies the eighth factor, even though it
could not terminate his services with A&A. See Melancon v.
Amoco Production Co., 834 F.2d 1238, 1246 (Sth Cir. 1988).
The ninth factor weighs in favor of borrowed employee status,
even though A&A wrote the check. See Capps, 784 F.2d at 618.
B&B was obligated under the contract to pay Prestenbach, Sr.'s
wages at a rate of $175 per day.

Accordingly, the court concludes that the Ruiz factors weigh
in favor of the determination that Prestenbach, Sr. was the
borrowed employee of B&B. The analysis now turns to the
questions whether Nunez was injured as a result of PenteTnAee,
Sr.'s negligence.

B. The liability of Prestenbach, Sr.

Nunez asserts that he was injured when Prestenbach, Sr.
rotated the housing of the track hoe and knocked him 15 to 20
feet into the air. He alleges that his injuries were the result of
Prestenbach, Sr.'s negligence. [**11]

On the morning of the accident, Nunez was at the dumpsite
instructing Guillot to add a pipe connection to prevent the silt
from going back into the waterway. Nunez testified that he tried
to reach Guillot to assist him, but he started sinking in the mud
as he moved toward Guillot. Nunez then climbed on the track
hoe and advised Prestenbach, Sr. not to move the rig while he
was attempting to walk to the other [*661] side. Nunez recalls
that Prestenbach, Sr. acknowledged and said "okay." As Nunez
climbed across the back to the left track, the housing of the track
hoe rotated. Nunez stated that he did not know why Prestenbach,
Sr. moved the machine. n7

17a

- -Footnotes- -

n7 Prestenbach, Sr. did not appear to testify at trial. On the
morning of the trial, the court issued a warrant instructing the
United States Marshal to locate Prestenbach, Sr. and to deliver
him to the courtroom to testify. The marshals were unable to
locate him, and the warrant was rescinded at the close of the
evidence at the request of counsel for both parties.

- -EndFootno

Guillot [**12] testified that he saw Nunez speak to
Prestenbach, Sr. and watched as the crane swung around and
sent Nunez "flying." Guillot stated that Nunez did not signal
Prestenbach, Sr. to move the machine and that he did not know
why the operator did so.

Guillot agreed that Nunez was hit on his left shoulder and
was thrown approximately 15 to 20 feet in the air. Nunez landed
on his left side in the silt near Guillot's feet. Guillot tried to help
Nunez up, but he did not want to hurt him. Guillot noticed that
Nunez's right arm was "giving him trouble.”

Roland learned about Nunez's accident when he returned to
the hotel in the evening. He affirmed that B&B's safety manager
interviewed Guillot and the operator and prepared an accident
report. Roland stated that the company rule that the operator
could not move the machine while a pipeline was being moved
unless directed to do so had been explained to Prestenbach, Sr. at
safety meetings.

The evidence supports a finding that Prestenbach, Sr. was
negligent in the operation of the track hoe and that Nunez was
injured as a result of that negligence. The operator was advised
of the safety procedures and was informed that he was to take his
instructions [**13] from Nunez before moving the track hoe.
Although Nunez warned that he was about to make the
maneuver and Prestenbach, Sr. acknowledged that he
understood, Prestenbach, Sr. caused the housing to move and to
strike Nunez, injuring him.

18a

Under the Jones Act, a seaman is obligated "to act with
ordinary prudence under the circumstances." See Gautreaux v.
Scurlock Marine, Inz., 107 F.3d 331, 339 (Sth Cir. 1997) (en
banc). "The circumstances of a seaman's employment include not
only his reliance on his employer to provide a safe work
environment but also his own experience, training, or education.
The reasonable person standard, therefore, [in] a Jones Act
negligence action becomes one of the reasonable seaman in like
circumstances." Id.

The court finds that Nunez acted with ordinary prudence
under the cir-umstances. Nunez advised Prestenbach, Sr. that he
was going t» climb across the back of the track hoe, and there
was no evidence that Nunez was negligent in executing the
maneuver.

C. B&B's liability

Moreover, the court finds that B&B is liable for Prestenbach,
Sr.'s negligence. The borrowed employee doctrine holds the
"proper employer responsible for [**14] the torts of his
employee" under the theory of respondeat superior. Gaudet v.
Exxon Corp., 562 F.2d 351, 355 (Sth Cir 1977). Because
Prestenbach, Sr. is B&B's borrowed employee, B&B is
responsible for Prestenbach Sr.'s negligence under the theory of
respondeat superior.

D. A&A's liability

Although A&A entered into a settlement agreement with
Nunez prior to trial, the court is not relieved of the task of
determining whether A&A was legally responsible for Nunez's
injuries because B&B may be entitled to a credit for the
proportionate liability of the settling defendant. n8 The court
considers whether A&A [*662] maintained sufficient control
over the borrowed employee to lead to the conclusion that he
was also A&A's employee. See Tyson v. Litwin Corp., 826 F.2d

19a

1255, 1258 (3rd Cir. 1987).
- -Footnotes- -

n8 Where the defendants are both vicariously liable for the
same act of their joint employee under the doctrine of respondeat

superior, they are each liable for 50%. See United States v.

Reliable Transfer Co., Inc., 421 U.S. 397, 95 S. Ct. 1708, 1716,

44 L. Ed. 2d 251 (1975) (liability "is to be allocated equally only

when the parties are equally at fault or when it is not possible

fairly to measure the comparative degree of their fault"); see

McDermott, Inc v. AmClyde., 511 U.S. 202, 114 S. Ct. 1461,

1465, 128 L. Ed. 2d 148 (1994); see, e.g, Thompson v. New

Orleans Public Belt R.R., 373 So. 2d 1312, 1318 (La. Ct. App.

1979) (when damages are apportioned between two employers,

each should be responsible for its virile share; apportioning 50%

fault to each employer).

- -EndFootnotes- - [**15] rm
The court looks to section 227 of the Restatement (Second)

of Agency (1958) for guidance. n9 Comments b and c of § 227

address the method used to determine whether Prestenbach, Sr.

understood that he remained in the allegiance of A&A when he
was operating the track hoe.

b. Inference that original service continues. In the absence of
evidence to the contrary, there is an inference that the actor
remains in his general employment so long as, by the service
rendered another, he is performing the business entrusted to
him by the general employer. There is no inference that
because the general employer has permitted a division of
control, he has surrendered it.

c. Factors to be considered. Many of the factors . . . which
determine that a person is a servant are also useful in
determining whether the lent servant has become the servant
of the borrowing employer. Thus a continuation of the
general employment is indicated by the fact that the general
employer can properly substitute another servant at any time,

20a

that the time of the new employment is short, and that the

lent servant has the skill of a specialist.

A continuance of the general employment is also indicated in
the [**16] operation of a machine where the general employer
rents the machine and a servant to operate it, particularly if the
instrumentality is of considerable value. Normally, the general
employer expects the employee to protect his interests in the use
of the instrumentality, and these may be opposed to the interests
of the temporary employer. If the servant is expected only to give
results called for by the temporary employer and to use the
instrumentality as the servant would expect his general employer
would desire, the original service continues. Upon this question,
the fact that the general employer is in the business of renting
machines and men is relevant, since in such case there is more
likely to be an intent to retain control over the instrumentality. A
person who is not in such business and who, gratuitously or not,
as a matter not within his general business enterprise, permits his
servant and instrumentality to assist another, is more apt to
intend to surrender control.

- -Footnotes- -

n9 Section 227 sets forth the borrowed servant doctrine:

A servant directed or permitted by his master to perform services
for another may become the servant of such other in performing
the services. He may become the other's servant as to some acts
and not as to others.

- -EndFootnotes- - [**17]

In this case, the evidence does not contradict the inference
that Prestenbach Sr.'s original service with A&A continued.-
A&A was in the business of renting machines and providing an
operator for those machines. Prestenbach, Sr. had a special
relationship with A&A because he is the father of the owner of
A&A. A&A provided the operator and implicitly retained the

2la

capacity under the contract to substitute another operator for
Prestenbach, Sr. at any time. Further, B&B had the right to direct
Prestenbach, Sr. in the specific acts of the job and to discharge
him from B&B's employment; however, B&B could not
discharge him from A&A's [*663] employment. nl10
Accordingly, the court finds that Prestenbach, Sr. did not
abandon his relationship with A&A, worked in furtherance of
the business of both A&A and B&B, and he was the employee of
both B&B and A&A. n11

- -Footnotes- -

n10 The court does not find it important that A&A leased the
track hoe from another vender because A&A assumed
responsibility for the track hoe.

nll The rule in several jurisdictions is that both the general
and special employer may be held liable for the employee's tort.
See Morgan v. ABC Manufacturer, 710 So. 2d 1077, 1082 (La.
1998); see also LeJeune v. Allstate Ins. Co., 365 So. 2d 471, 482
n.14 (La. 1978) (listing jurisdictions that have held that the
general and special employer may be held solidarily liable for the
employee's tort), Bright v. Cargill, Inc., 251 Kan. 387, 837 P.2d
348, 362-63 (Kan. 1992); Restatement (Second) of Agency §
227 notes (court citations July 1992 through June 1999). _

- -EndFootnotes- - [**18]

In Jones Act and general maritime cases, joint tortfeasors are
jointly and severally liable. See Coats v. Penrod Drilling Corp.,
61 F.3d 1113, 1116 (Sth Cir. 1995) (en banc); Joia v. Jo-Ja
Service Corp., 817 F.2d 908, 915 (1st Cir. 1987). A Jones Act
defendant can be held jointly liable with a defendant whose
negligence arises under state or general maritime law. See
Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1431 (Sth Cir.
1988). Accordingly, A&A, B&B, and Prestenbach, Sr. are jointly
and severally liable.

In cases such as this in which there has been a settlement, the
nonsettling defendant is entitled to a credit for that settlement.

22a

See McDermott, Inc. v. AmClyde, 511 U.S. 202, 114 S. Ct. 1461,
1465, 128 L. Ed. 2d 148 (1994). The credit to the nonsettling
defendant is determined by the proportionate share of liability of
each defendant. 114 S. Ct. at 1470-72. Because A&A and B&B
are both vicariously liable as employers of Prestenbach, Sr.,
B&B is credited with A&A's 50% share of liability. n12

- -Footnotes- -

nl2 The parties do not raise the issue whether A&A and
B&B could seek indemnity or contribution from Prestenbach, Sr.

- -EndFootnotes- - [**19]
E. The extent of the injury caused by the accident ‘

Nunez was treated at a clinic nl3 in DeFuniak Springs,
Florida, the day following the accident, where the clinic
physician gave him a sling for his left arm and sent him back to
work on light duty. Nunez could not return to his position as
dump foreman, and Roland placed him on light duty transporting
the crew to and from the job and checking the site. Nunez was
never able to return to regular duty. He accompanied the crew to
another job in the Mississippi River above Baton Rouge and
operated a survey boat or transported materials until his
employment with B&B terminated in February 1998.

- -Footnotes- -

nl3 The clinic has since closed, and Nunez has been unable

to obtain his medical records.
- -EndFootnotes- -

Nunez then went to work at Gulf South Marble driving a
delivery truck. The people at the various delivery sites unloaded
the truck for him because he was unable to lift the boxes of tile.
Following the advice of his physician, Nunez quit the job after
two months because it was [**20] too strenuous.

On March 16, 1998, when Nunez began dropping items that
he was holding, he saw Dr. Essam Elmorshiddy, nl4 an

23a

orthopaedist, for an evaluation. The medical records indicate that
Nunez was complaining of pain in his neck and pain referred to
his left shoulder and left elbow as a result of being hit on his left
side by the back of a swinging track hoe six months earlier.
Nunez told Dr. Elmorshiddy that he initially thought his neck
and shoulder pain would improve with time, but that it had not.
Nunez did not have a history of neck, shoulder, or elbow
problems prior to the accident.

- -Footnotes- -

nl4 Dr. Elmorshiddy did not testify because he was killed in
an automobile accident in November 1998.

- -EndFootnotes- -

The examination of Nunez's neck showed spasms,
tenderness, and limited [*664] motion. The elbow showed
tenderness, weakness of the grip of the left hand, and diminished
sensation of the thumb, index, and middle finger. Dr.
Elmorshiddy diagnosed a strain of the cervical spine, aggravation
of degenerative arthritis, contusion of [**21] the right shoulder,
post-traumatic subacromial busitis, and post-traumatic tendinitis
of extensor origin of the left elbow.

The doctor ordered a MRI of the cervical spine and an EMG.
A MRI of the cervical spine showed disc hemiation at C6-7
producing significant encroachment on the canal and cervical
cord and significant encroachment upon the dural sac at C5-6.
The EMG showed left median neuropathy at the left wrist. Dr.
Elmorshiddy chose a conservative treatment of massage, heat,
and medication. The tender areas of the neck and shoulder were
injected with a local steroid and xylocaine, and Nunez was given
a brace for his wrist. Dr. Elmorshiddy discussed the feasibility of
surgery and immobilized Nunez in a "Miami J" cervical collar.

On July 2, 1998, Nunez's symrtoms persisted, and he began
experiencing stiffness and pain in the back and in the right hip
and leg. An examination of the back showed muscle spasms,
tenderness, and limited painful motion. A MRI of the lumbar

24a

spine showed osteophyte/disc complex causing a mild degree of
central stenosis at L4-5, and a disc bulge.

On August 8, 1998, Nunez underwent surgery for left carpal
tunnel syndrome. Dr. Elmorshiddy continued to [**22] treat
Nunez conservatively for the pain related to his neck and back.

Because of Dr. Elmorshiddy's untimely death, on December
15, 1998, Nunez's care was assumed by Dr. George Murphy, an
orthopaedist. At trial, Dr. Murphy testified that Nunez has multi-
level disc disease at- C5-6 and C6-7. He stated that the
complaints of pain reported by Nunez correlate to the
radiographic evidence and that there is nothing inconsistent with
the presence of pain on the left side. There is a large herniated
disc at C6-7 that contacts the spinal cord and poses a risk of
developing a neurological problem if there should be further
injury. According to Dr. Murphy, spinal cord compression can
cause symptoms on the left or right side and could cause referred
pain to Nunez's left shoulder and arm. In light of the current cord
compression, Nunez may be a candidate for cervical spine
surgery in the future. At C5-6 there are bony changes that
predate the accident. Dr. Murphy opined that Nunez's condition
was asymtomatic prior to the accident and that the trauma of the
accident could have caused it to become symptomatic.

Dr. Murphy assigned a 10 to 15% whole body impairment as
a result of the condition of the [**23] cervical spine and a 10 to
20% impairment rating due to the problems at the left upper
extremity. He stated that, based on the injury to his neck alone,
Nunez would have been restricted after the accident. Dr. Murphy
did not view Nunez as a malingerer and reiterated that the
objective evidence supported his complaints.

The defendant presented the testimony of Dr. Melvin Parnell,
who conducted a ten-minute examination of Nunez on January
12, 1999. The examination showed cervical spine motion at

25a

approximately 50% of normal with discomfort at the extremes of
motion. Although Dr. Parnell found discomfort at the base of the
neck, he stated that there was no radiation of the discomfort into
either upper extremity. There was an impaired range of motion
of the left shoulder, but no evidence of instability.

Dr. Parnell also reviewed copies of the MRI scans of the
cervical and lumbar spine. Dr. Parnell stated that there was
evidence of a disc herniation at C6-7 on the right side of the
cervical spine. There was also evidence of comnression of the
spinal cord at C5-6 on the right side due to a bone pur. The MRI
of ‘he lumbar spine showed evidence of a bulging disc at LA-5 to
the right. Based [**24] on the review of [*665] the radiographic
studies, Dr. Parnell did not feel that there was evidence of a
clinically significant disc herniation in either the cervical or the
lumbar spine.

Dr. Parnell disagreed with the radiologist's statement that
there was a significant encroachment of the cord and opined that
Nunez sustained cervical and lumbar strains with no significant
permanent impairment to either the neck or the lower back. He
stated that muscle spasms, limitation of motion, and pain were
consistent with chronic cervical strain.

The court finds the testimony of Dr. Murphy credible and
credits the records and reports of Dr. Elmorshiddy and the
radiologists concerning the extent of Nunez's injury. Further, the
court finds that Nunez's present injury as identified by these
physicians was caused by the accident involving the track hoe in
September 1997. Even if Nunez's degenerative condition was
present before the accident, the trauma of being struck and
thrown 15 to 20 feet caused his condition to become

On December 7, 1999, Bobby Roberts, a vocational
evaluation specialist, evaluated Nunez to determine his levels of
vocational functioning [**25] and to predict future

26a

employability. In addition to administering a variety of tests,
Roberts reviewed radiological reports from Chalmette Medical
Center and the medical reports of Dr. Elmorshiddy and Dr.
Murphy.

Nunez was born on September 21, 1939, and completed the
8th grade at St. Bernard High School. His test results revealed a
borderline range of classification overall with an extreme
deficiency in math skills and an elevated range for situational
personality factors. Nunez's overall general ability for
performance characteristics was consistent with a history of
semi-skilled work activities.

. At the time of testing, Nunez had difficulty with sustained
activities. He could sit for 15 minutes or less, he could stand for
10 minutes or less, and sustained activities caused increased
symptoms in the left shoulder and left upper extremity with
marked decreased capability. Roberts clarified that there were
activities that Nunez could perform, such as removing his
Christmas tree lights or dragging his tree to the trash; however,
Nunez could perform such activities only for a short duration and
could not sustain the activities over time.

Roberts testified that he had not detected signs [**26] of
malingering or exaggeration and that the computerized test
results did not identify any inconsistencies. Roberts disagreed
with the treating physician that Nunez was only restricted to
sedentary work because Nunez lacked the academic skills
required to perform even sedentary work, he could not use both
upper extremities in the performance of sedentary work, and he
could not flex his neck forward.
treatment of the cervical symptoms; further medical evaluation
of the upper extremity symptoms, which showed decreased
functional ability; further medical evaluation of low back

27a

symptoms, which extended down the left lower extremity to the
ankle; a referral to a clinical psychologist to evaluate the elevated
personality factors; and a referral to an ophthalmologist to
evaluate his vision deficits. In view of Nunez's age, poor
educational levels of functioning, and limited functional
capabilities, Roberts concluded that it was unlikely that he could
return to the gainful labor market. n15

- -Footnotes- -

nl5 Dr. Parnell testified on cross-examination that he had
not seen the results of Mr. Roberts' tests; however, the tests may
have influenced his opinion if he determined that they were
valid.

- -EndFootnotes- - [**27]

In lieu of testimony, the defendant presented evidence of a
written report of a vocational rehabilitation evaluation conducted
by Judith Lide. Lide met with Nunez [*666] on January 5, 2000;
administered the Wide Range Achievement Test and the
Vocational Preference Inventory; and reviewed Nunez's
deposition, his social security and employment records, Roberts’
vocational report, and the medical records. After considering the
restrictions outlined by Dr. Elmorshiddy, Lide concluded that
Nunez could perform selected assembling and packaging tasks,
work as a security guard, perform small equipment repairs, and
obtain certain driving positions that did not require a commercial
driver's license.

After carefully considering the testimony, medical reports
and records and the vocational experts’ reports, the court finds
that Nunez does not have the functional ability to perform
gainful work activity due to his age, academic level of
functioning, and limited sustained physical capabilities.

G. Damages

Nunez seeks special damages for past medical expenses,
future medical expenses, past lost earnings, future lost earnings,
general damages, and prejudgment interest on past losses under

28a

the [**28] general maritime law.
IT IS ORDERED that there be judgment in favor of Milfred
J. Nunez as follows:

Past medical: $ 13,873.83
Future medical: $ 23,814.00
Past lost earnings: $ 69,905.00
Future lost earnings: $ 143,977.00
General damages: $ 100,000.00.

The court declines to award prejudgment interest on past losses
because the Nunez proceeded against B&B under the Jones Act,
and prejudgment interest is not an element of damages
thereunder. See Simeon v. T. Smith & Son. Inc., 852 F.2d 1421
(Sth Cir. 1988). Because Prestenbach, Sr. was the employee of
both A&A, the settling defendant, and B&B, B&B is entitled to
a credit of 50%.

New Orleans, Louisiana, this 20 day of July, 2000.

MARY ANN VIAL LEMMON

UNITED STATES DISTRICT JUDGE

29a

APPENDIX D - OPINION AND ORDER OF
THE UNITED STATES DISTRICT COURT, DATED
MAY 17, 2000 AND ENTERED ON MAY 18, 2000
GRANTING SUMMARY JUDGMENT IN FAVOR OF
MILFRED J. NUNEZ

ORDER AND REASONS

IT IS HEREBY ORDERED that the motion for summary
judgment of Charlotte Nunez and Milfred J. Nunez is
GRANTED. (Document #62.)

I. BACKGROUND

Milfred J. Nunez and his wife, Charlotte Nunez, filed a
complaint against the defendants! asserting claims for
negligence under the Jones Act, 46 U.S.C. § 688 et seq., and
unseaworthiness and maintenance and cure under the general
maritime law.” Nunez alleges that he was employed by B&B
Dredging, Inc. (B&B) as a seaman and a member of the crew of
the M/V DREDGE BATON ROUGE. On September 4, 1997,
the M/V DREDGE BATON ROUGE was engaged by the
United States Corps of Engineers to dredge a waterway along the
Intracoastal Canal near Panama City, Florida. Nunez was a
foreman assigned to the dredge dump.” A CAT track hoe and its
operator, Arthur Prestenbach, Sr., (Prestenbach), were leased
from A&A Towing, L.L.C. (A&A). Nunez alleges that he
sustained serious injuries when Prestenbach rotated the housing
of the track hoe and struck Nunez as he climbed aboard the track

- The original defendants were B&B Dredging, Inc (B&B); Clarendon America
Insurance Company (Clarendon), B&B’s insurer; A&A Towing, LLC; Arthur
Prestenbach, Sr.; and Credit General Insurance Company, A&A's insurer. The only
remaining defendants are B&B and Clarendon. However, B&B filed for

benkzuptey tection and all proceedin inst it are stayed.
Charlotte Seer caoeres » eagles ter Ineo of oraartiant

3. A dump foreman monitors the dredge spoil site where silt expelled by the dredge is

piled and decides when to “pipe off or make a new pile of silt.

30a

to extricate himself from the soft sand.
II. DISCUSSION

1. Summary Judgment Standard

Nunez filed a motion for summary judgment, asserting that
he is a seaman. Summary judgment is proper when, viewing the
evidence in the light most favorable to the non-movant, “there is
no genuine issue as to any material fact and ... the moving party
is entitled to judgment as a matter of law." Amburgey v. Corhart
Refractories Corp., 936 F.2d 805, 809 (Sth Cir. 1991); Fed. R.
Civ. P. 56(c). If the moving party meets the initial burden of
establishing that there is no genuine issue, the burden shifts to
the non-moving party to produce evidence of the existence of a
genuine issue for trial. Celotex Corn. v. Catrett, 106 S.Ct. 2548,
2552 (1986). The nonmovant cannot satisfy his summary
judgment burden with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994) (en banc). A fact is
"material" if its resolution in favor of one party might affect the
outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 106
S.Ct. 2505, 2510 (1986). An issue is “genuine" if the evidence is
sufficient for a reasonable jury to return a verdict for the
nonmoving party. Id. If the opposing party bears the burden of
proof at trial, the moving party does not have to submit
evidentiary documents to properly support its motion, but need
only point out the absence of evidence supporting the essential
elements of the opposing party’s case. Saunders v. Michelin Tire
Corp., 942 F.2d 299, 301 (Sth Cir. 1991).
7 Seaman status

Nunez contends that he was a crew member, permanently
assigned to the vessels; his duties contributed to the function of
the dredging vessels; and the nature of his connection to the
vessels was substantial.

3la

The question who is a “seaman” is a mixed question of law
and fact. See McDermott Int’l, Inc. v. Wilander, 111 S.Ct. 807,
818 (1991). "When the underlying facts are established, and the
rule of law is undisputed, the issue is whether the facts meet the
statutory standard." Id. Seaman status depends “on the nature of
the vessel and the employee's precise relation to it.” Id. "If
reasonable persons, applying the proper legal standard, could
differ as to whether the employee was a "member of a crew," it is
a question for the jury." Id. Summary judgment is mandated
when the facts and the law support only one conclusion. Id.

The key to seaman status is employment-related connection
to a vessel in navigation.” Id. at 817. "[A] necessary element of
the connection is that a seaman perform the work of a vessel.” Id.
The work of a seaman need not be limited to transportation
functions that aid in the vessel's navigation. See Chandris, Inc. v.
Latsis, 115 S.Ct. 2172, 2181 (1995). “Whether under the Jones
Act or general maritime law, seamen do not include land-based
workers." Wilander, 111 S. Ct. at 814. Jones Act coverage
depends on the nature of the seaman's service, his status as a
member of the vessel, and his relationship to the vessel and its
operation in navigable waters. Chandris, 115 S.Ct. at 2185. To
qualify as a seaman, a maritime employee need not work only on
board a vessel. Id at 2187. Those who obtain seaman status do
not automatically lose the protection when on shore. Id. at 2185.
“Thus, if the employee's regularly assigned duties require him to
divide his time between vessel and land (or platform) his status
as a crew member is determined in the context of his entire
employment with his current employer." Barrett_v. Chevron
U.S.A., Inc., 781 F.2d 1067, 1075 (Sth Cir. 1986). Based on
these principles, there are two essential requirements for seaman
status: 1) the employee's duties must contribute to the function of
the vessel or the accomplishment of its mission, and 2) a seaman
must have a substantial connection to a vessel in navigation in
terms of its duration and its nature. Chandris, 115 S.Ct. at 2190.

32a

At the time of the accident, Nunez had been employed as a
crew member by B&B for approximately two years and was
permanently assigned to the DREDGE BATON ROUGE.’ The
uncontroverted deposition testimony indicates that Nunez began
his work with B&B as a roustabout and an operator on the rig
with occasional responsibility for running the crewboat.’ The
dredge’s crew consisted of two leadermen, who operate the
barge; the crewboat operator; the dump foreman (the title which
Nunez had at the time of the accident); and the roustabout, who
assists the dump foreman.° During the two years that he worked
for B&B, Nunez performed repair work on a smali, unnamed,
twelve-inch dredge for approximately two months; assisted in
the construction the DREDGE BATON ROUGE for
approximately 10 months and worked on dredging assignments
on the Mississippi River and in Florida.’ Nunez worked twelve
hour shifts when the dredge was in operation. He took vacation
time when the dredge was being moved from one jobsite to
another because he did not participate in transporting the vessel
to the new dredge site.”

Nunez traveled over water to and from the DREDGE
BATON ROUGE to report on the dump site’s status and
operated various B&B owned vessels. He occasionally ate his
meals on the dredge; however, he did not sleep on the vessel

4. "Affidavit of Roland Nunez, Nunez’s brother and the supervisor of the B&B crew,
1.

5. Deposition at 32-33.

6. Deposition at 39.

7. Deposition at 50-59.

8. Deposition at 47.

9. Deposition at 81.

33a

during his employment because there were no living quarters. s

At the Florida location, Nunez was required to lay 10 miles
of pipeline, which was carried to the site by barge and by truck
as part of the project to dredge a section of the Intracoastal
Waterway. The pipeline was ten miles long because it snaked
around com and cotton fields that had to be avoided.'' His duties
included operating a survey boat, operating a flat boat, operating
a tugboat, fixing the pontoon line in the river between the dredge
and the dump site, shifting the two swing anchors in the river to
enable the vessel to move, building levees surrounding the dump
sites near the edge of the river, and toating end unloading pipe
from the vessel during dredging operations. | 2 At least twice a
day the crew and the dump foreman made the approximately
hour-long trip between the vessel and the river bank.

The track hoe, which was positioned on land, was used to lift
the-pipe in a sling and transfer it to the banks of the waterway.’
When the dredge arrived, Nunez made pontoon confections
between the pipeline and the cutter head on the dredge in order
to pump out the Intracoastal Canal.'°

Nunez worked on the Florida assignment approximately
eight weeks before he was injured.’ ° After the i injury, he worked
light duty operating a crew boat full time for the same employer
until his employment was terminated.’

Clarendon does not dispute that B&B's barges are vessels in

10. Deposition at 47-48, 96-97.
1. Deposition at 87.

12. Nunez affidavit at 2.

13. Nunez affidavit at 2.

14. Deposition at 83.
- & Deposition at 90.
16. Deposition at 96.
17. Deposition at 125.

34a

navigation and that Nunez was a member of the six-man crew
employed by B&B at the three locations where dredging took
place. Clarendon argues that Nunez’s connection to the
DREDGE BATON ROUGE was not substantial because he
worked 90% of his time on land. In support of its argument that
Nunez is not a seaman, Clarendon relies on the holding in Loyd
v. Ram Industries, Inc., 64 F.Supp.2d 1235 (S.D. Ala. 1999) that
the employee in a dredging operation was not a seaman. The
undisputed facts showed that Loyd worked as an onshore
pipeline man and was responsible for inspecting the land-based
section of the discharge pipe. He performed maintenance on the
onshore booster pipe and used a bulldozer at the dump site. Id. at
1237. However, Loyd was not a member of the crew of the
dredge and did not perform any work on the water-based section
of the discharge pipe. Id. Loyd occasionally boarded the vessel to
obtain tools and diesel fuel. The court concluded that Loyd was
not exposed to the “perils of the sea” that the Jones Act was
designed to protect against. Id. at 1238.

The facts in Loyd are distinguishable from this case. Unlike
Loyd, Nunez was a member of the crew, he played an integral
part in connecting the pipeline to the dredge, and he worked on
the waterway between the dredge and the dump site. Therefore,
Nunez, unlike the plaintiff in Loyd, performed work that
exposed him to the perils of the sea.

Taking into account the unique nature of the vessel and the
work performed, Nunez had a substantial connection to the
vessel. The site of Nunez’s injury and the necessity that the work
of the vessel required Nunez to spend a large portion of his time
on land does not bar him from his Jones Act seaman status.
Accordingly, the motion for summary judgment is granted.

New Orleans, Louisiana, this day of May, 2000.

17

MARY ANN VIAL LEMMON, U. S. DISTRICT JUDGE

35a

APPENDIX E - OPINION AND ORDER OF THE
UNITED STATES DISTRICT COURT, DATED
NOVEMBER 29, 1999 AND ENTERED ON NOVEMBER
30, 1999 DENYING THE MOTION FOR SUMMARY
JUDGMENT FILED BY CLARENDON AMERICAN
INSURANCE COMPANY

ORDER AND REASONS
IT IS HEREBY ORDERED that Clarendon American

Insurance Company's “Motion for Summary Judgment,"
pursuant Rule 56 of the Federal Rules of Civil Procedure, is
DENIED. (Document #31.)
I. BACKGROUND
Milfred J. Nunez and his wife, Charlotte Nunez, filed a
complaint against the defendants’® asserting claims for
negligence under the Jones Act, 46 U.S.C. § 688 et seg., and
unseaworthiness and maintenance and cure under the general
maritime law.'? Nunez alleges that he was employed by B&B
Dredging, Inc. (B&B) as a seaman and a member
of the crew of the M/V DREDGE BATON ROUGE. On
September 4, 1997, the M/V DREDGE BATON ROUGE was
engaged by the United States Corps of Engineers to dredge a
waterway along the Intracoastal Canal near Panama City,
} o-da. Nunez was a foreman assigned to the dredge dump.”” A
1. The defendants are B&B Dredging, Inc; Clarendon America Insurance Company,
B&B's insurer; AXA Towing, LLC; Arthur Prestenbach, Sr.; and Credit General
Insurance Company, A&A’s insurer.
2. Charlotte Nunez asserts a claim for loss of consortium. In a footnote, Clarendon
raises the question whether Mrs. Nunez may recover for loss of consortium. See
Murray v. Anthony J. Bertucci Const. Co., Inc., 958 F.2d 127, 131-32 (Sth Cir
1992).
3. A dump foreman monitors the dredge spoil site where silt expelled by the dredge is
piled and decides when to “pipe off” or make a new pile of silt.

36a

CAT track hoe and its operator, Arthur Prestenbach, Sr.,
(Prestenbach), were leased from A&A Towing, L.L.C. (A&A).
Nunez alleges that he sustained serious injuries when
Prestenbach rotated the housing of the track hoe and struck
Nunez as he climbed aboard the track to extricate himself from
the soft sand.
II. DISCUSSION
Clarendon American Insurance Company (Clarendon) filed a
motion for summary judgment, asserting that Nunez is not a
seaman. Summary judgment is proper when, viewing the
evidence in the light most favorable to the non-movant, “there is
no genuine issue as to any material fact and ... the moving party
is entitled to judgment as a matter of law." Amburgey v. Corhart
Refractories Corp., 936 F.2d 805, 809 (Sth Cir. 1991); Fed. R.
Civ. P. 56(c). If the moving party meets the initial burden of
establishing that there is no genuine issue, the burden shifts to
the non-moving party to produce evidence of the existence of a
genuine issue for trial. Celotex Com. v. Catrett, 106 S.Ct. 2548,
2552 (1986). The nonmovant cannot satisfy his summary
judgment burden with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (Sth Cir. 1994) (en banc). A fact is
"material" if its resolution in favor of one party might affect the
outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 106
S.Ct. 2505, 2510 (1986). An issue is “genuine” if the evidence is
sufficient for a reasonable jury to return a verdict for the
nonmoving party. Id. If the opposing party bears the burden of
proof at trial, the moving party does not have to submit
evidentiary documents to properly support its motion, but need
only point out the absence of evidence supporting the essential

elements of the opposing party's case. Saunders v. Michelin Tire
Corp., 942 F.2d 299, 301 (Sth Cir. 1991).

37a

The question who is a “seaman” is a mixed question of law
and fact. See McDermott Int’, Inc. v. Wilander, 111 S.Ct. 807,
818 (1991). "When the underlying facts are established, and the
rule of law is undisputed, the issue is whether the facts meet the
statutory standard.” Id. Seaman status depends “on the nature of
the vessel and the employee's precise relation to it." Id. "If
reasonable persons, applying the proper legal standard, could
differ as to whether the employee was a "member of a crew," it is
a question for the jury." Id. Summary judgment is mandated
when the facts and the law support only one conclusion. Id.

The key to seaman status is employment-related connection
to a vessel in navigation.” Id. at 817. "[A] necessary element of
the connection is that a seaman perform the work of a vessel.” Id.
The work of a seaman need not be limited to transportation
functions that aid in the vessel's navigation. See Chandris, Inc. v.
Latsis, 115 S.Ct. 2172, 2181 (1995). “Whether under the Jones
Act or general maritime law, seamen do not include land-based
workers." Wilander, 111 S.Ct. at 814. Jones Act coverage
depends on the nature of the seaman's service, his status as a
member of the vessel, and his relationship to the vessel and its
operation in navigable waters. Chandris, 115 S.Ct. at 2185. To
qualify as a seaman. a maritime employee need not work only on
board a vessel. Id :1 2187. Those who obtain seaman status do
not automatically lose the protection when on shore. Id. at 2185.
“Thus, if the employee's regularly assigned duties require him to
divide his time between vessel and land (or platform) his status
as a crew member is determined in the context of his entire
employment with his current employer." Barrett _v. Chevron
U.S.A., Inc., 781 F.2d 1067, 1075 (Sth Cir. 1986). Based on
these principles, there are two essential requirements for seaman
status: 1) the employee's duties must contribute to the function of
the vessel or the accomplishment of its mission, and 2) a seaman
must have a substantial connection to a vessel in navigation in
terms of its duration and its nature. Chandris, 115 S.Ct. at 2190.

38a

Clarendon's challenge to Nunez's seaman status is based on
the second prong of the Chandris test. Clarendon argues that 1)
Nunez's connection with the vessel did not take him to sea, 2) his
work brought him aboard the barge sporadically, and 3) he was
injured on land at a spoil site approximately 50 feet from the
edge of the waterway.”

The uncontroverted deposition testimony indicates that
Nunez began his work with B&B as a roustabout and an operator
on the rig with occasional responsibility for running the
crewboat.™ The dredge's crew consisted of two leadermen, who
operate the barge; the crewboat operator; the dump foreman (the
title which Nunez had at the time of the accident); and the
roustabout, who assists the dump foreman.” During the two
years that he worked for B&B, Nunez performed repair work on
a small, unnamed, twelve-inch dredge for approximately two
months; assisted in the construction the DREDGE BATON
ROUGE for approximately 10 months; and worked on dredging
assignments on the Mississippi River and in Florida.2* Nunez
worked twelve hour shifts when the dredge was in operation.”°
He took time off when the dredge was being moved from one
job site to another because he did not participate in transporting
the vessel to the new dredge site.”®

Nunez traveled over water to and from the DREDGE

4. The pipeline was ten miles long because it snaked around corn and cotton fields
that had to be avoided. Deposition at 87.

Deposition at 32-33.

Deposition at 39.

Deposition at 50-59.

Deposition at 47.

Deposition at 81.

PS eS

39a

BATON ROUGE to report on the dump site's status, built levees
to create new silt dump sites, and operated various B&B owned
vessels. He occasionally ate his meals on the dredge; however,
he did not sleep on the vessel during his employment.”’

At the Florida location, Nunez was required to lay 1.0 miles
of pipeline, which was carried to the site by barge and by truck
as part of the project to dredge a section of the Intracoastal
Waterway. The track hoe, which was positioned oh land, was
used to lift the pipe in a sling and transfer it to the banks of the
waterway.”® When the dredge arrived, Nunez made pontoon
connections between the pipeline and the cutter head on the
dredge in order to pump out the Intracoastal Canal.” Nunez
worked on the Florida assignment approximately eight weeks
before he was injured.°” After the injury, he worked light duty
operating a crew boat full time for the same employer until his
employment was terminated.°!

Clarendon does not dispute that B&B's barges are vessels in
navigation, that Nunez was a member of the six-man crew
employed by B&B at the three locations where dredging took
place, and that Nunez's duties contributed to accomplishing the
function of the vessel in dredging silt from waterways. Further,
for two years, Nunez played an integral part in connecting and
maintaining the pipeline through which the dredged material was
delivered to the shore. His duties in the service of the dredge
required him to work on the waterway between the dredge and
the dump site and exposed him to the perils of the sea. Contrary
to Clarendon's arguments, the questions concerning the
percentage of time spent on the dredge, the meal arrangements,

10. Deposition at 47-48, 96-97.
11. Deposition at 83.

12. Deposition at 90.

13. Deposition at 96.

14. Deposition at 125.

40a

and sleeping accommodations are not determinative of seaman
status. Additionally, the site of a seaman's injury does not bar
him from his Jones Act seaman status.

Accordingly, Clarendon is not entitled to summary judgment
on the issue whether Nunez is a seaman. A trer of fact could
reasonably conclude from the evidence that Nunez was a
permanently assigned crew member who contributed to the
dredging mission and had a substantial employment connection
to the dredge. The motion for summary judgment is denied.

New Orleans, Louisiana, this 29 day of November, 1999.
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

4la

APPENDIX F - AFFIDAVIT OF MILFRED NUNEZ
FILED ON AUGUST 30, 1999 IN OPPOSITION TO THE
MOTION FOR SUMMARY JUDGMENT FILED BY
CLARENDON AMERICAN INSURANCE COMPANY

STATE OF LOUISIANA
PARISH OF ORLEANS
AFFIDAVIT

BEFORE ME, the undersigned authority, duly
commissioned and qualified in and for the State and Parish
aforesaid, personally came and appeared: MILFRED NUNEZ a
person of the full age of majority and a resident of the Parish of
St. Bernard who, after first being duly sworn, deposed and said
that:

1. Iam a Plaintiff in Civil Action No. 98-2572, United States
District Court, Eastern District of Louisiana.

2. On September 4, 1997, I was injured in an accident during
the course of my employment with-B&B Dredging, Inc.,
("B&B"), a defendant in the above referenced lawsuit.

3. I worked for B&B for a total of two years.

4. During the two years that I was employed by B&B, I was a
permanently assigned crew member of their 12" dredge and then
the dredge BATON ROUGE, another B&B vessel.

5. At all times during my employment with B&B, I was a
member of the crew of either the 12" dredge or the dredge
BATON ROUGE. I did not work for another employer at any
time during the two years.

6. I remained a full time crew member when the 12” dredge
was under repair for two months during the time I was employed
by B&B.

7. I was a member of the crew which built the dredge
BATON ROUGE.

8. Once the dredge BATON ROUGE was christened, I was a
member of the crew of every project involving the dredge
BATON ROUGE. Additionally, I remained a constant member

42a

of the crew during the two weeks that the dredge BATON
ROUGE underwent repairs when a tug boat collided with the
dredge and caused damage.

9. During most of my two year employment with B&B, |
held a position titled "dump foreman", and I was also an
operator, a roustabout, and a deck hand. I was responsible for the
operations of the dump sites, whether they were 10 miles inland
or an island in the river. My duties also included operating a
crew boat, operating a flat boat, operating a tugboat, fixing the
pontoon line in the river between the dredge and the dump site,
shifting the two swing anchors in the river to enable the dredge
to move, building levees surrounding the dump sites near the
edge of the river, and loading and unloading pipe from the
dredge during dredging operations. I reported to my supervisor
aboard the dredge BATON ROUGE at least twice each day. My
duties required me to be on a vessel from 10 to 60 percent of the
time I spent working on B&B projects.

10. I had an assistant who remained at the dump site and who
would use a radio to contact me at the dredge if there was a
problem at the dump site.

11. The fewer problems that arose at the dump site, the more
time I spent on the dredge or handling the pontoon line between
the river bank and the dredge.

12. The dredge BATON ROUGE had been contracted by the
Corps of Engineers to dredge the intra-coastal waterway in
Florida during when I was injured.

13. At least twice each day I traveled by vessel from the river
bank to the dredge and then from the dredge to the dump site as
part of my duties as a B&B crew member.

14. The entire trip over the water from the river bank to the
dump site took 45 minutes to an hour and a half, depending on
the current.

43a

15. At least once per day, I assisted in adding one or two pipe
lengths (approximately 100 to 200 feet) to the pontoon line in the
river, using two vessels, usually the crew boat and the tug boat.
This was required during dredging operations when the slack
would run out in the pontoon line to the dredge, which would
keep the dredge from moving or break the pipe line unless pipe
lengths were added.

16. Whenever the operating dump site became full, my crew
had to find a new dump site and move the operations there. This
required building levees in the river near the shore in order to
dump the silt being dredged form the bottom of the river. Thus,
the dump site became an island. Moving to the new dump site
entailed detaching the land pipe from the pontoon line in the
river and moving the land equipment and the dredge to the new
dump site in the river. At that point, the land pipe and the
pontoon line would have to be reattached in the river by myself
and the crew. Creating new dump sites was necessary between
twenty to thirty times during the project for the Corps of
Engineers.

17. After the injury which gave rise to this action occurred, I
was assigned to light duty as a full time operator of the crew boat
that carried crew members and supplies back and forth from the
shore or the dump sites to the dredge BATON ROUGE

18. All statements attested to in this Affidavit are true and
correct to the best of affiant's knowledge, information and belief.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0307%3A1. Public record. Not legal advice.