Appendix — Conder v. RDI/Caesars Riverboat Casino, Inc.

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APPENDIX A — OPINION OF THE

COURT OF APPEALS OF INDIANA

DATED AND FILED DECEMBER 31, 2009

IN THE

COURT OF APPEALS OF INDIANA

No. 31A01-0907-CV-348

TINA CONDER,

Appellant-Plaintiff,

vs.

RDI/CAESARS RIVERBOAT CASINO, INC.,

and M/V GLORY OF ROME,

Appelices-Defendants.

APPEAL FROM THE HARRISON CIRCUIT COURT

The Honorable H. Lloyd Whitis, Judge

31C01-0504-PL-18

December 31, 2009

OPINION -F OR PUBLICATION

BAKER, Chief Judge

Appellant-plaintiff Tina Conder appeals the trial

court’s dismissal of her complaint against appellants-

defendants RDI/Caesars Riverboat Casino, Inc., and

M/V Glory of Rome (collectively, Caesars). Conder

Appendix A

argues that we should reconsider our opinion in the prior

appeal in this matter and that the trial court erroneously

dismissed her claim against Caesars based on her

alleged status as a Sieracki seaman. Declining to

reconsider our prior opinion and finding no error in the

dismissal! of her Sieracki claim, we affirm.

FACTS

The underlying facts have already been described

by this court in the first appeal in this litigation:

Caesars operates a casino (the Casino) on

the riverboat M/V Glory of Rome (the

Riverboat). The Riverboat is a passenger

vessel that is registered with and regularly

inspected by the U.S. Coast Guard. It has its

own engines and machinery, as well as

navigation, lifesaving, and fire-fighting

equipment.

In August 2002, the Casino began

exclusively conducting dockside gambling

pursuant to amendments to Indiana state law

that allowed casinos to stop cruising and

conduct gaming while dockside. Since that

time, the Riverboat has been moored and

stationary with the exception of rare tests

conducted in compliance with federal

regulations. It is connected to the dock by

eight mooring lines, two double-up lines, three

fuel hoses, a sewage and waterhose, and seven

‘

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Appendix A

power cables. Since August 2002, the

Riverboat has not transported passengers,

cargo, or equipment.

Seginning in March 2002, Conder was

employed as a table games dealer in the

Casino. On August 19, 2003, and on

subsequent occasions, Conder was repeatedly

bitten by fleas during the course of her

employment at the Casino. Treatment for her

adverse reaction to the flea bites included

large doses of steroids, which allegedly caused

her to have a heart attack.

On April 26, 2005, Conder filed a complaint

against Caesars, seeking compensation for

her injuries based on the Jones Act|'} or, in

the alternative, pursuant to Indiana worker’s

compensation laws as a seaman pro hac

vice—a Sieracki seaman. On March 26, 2007,

Caesars filed a motion to dismiss the

complaint pursuant to Indiana Trial Rule

12(B)(1). On May 15, 2007, Conder filed a

motion for partial summary judgment, seeking

a declaration as a matter of law that she is a

Jones Act Seaman. The trial court held a

hearing on the motion to dismiss and the

motion for partial summary judgment on

October 10, 2007, and on December 4, 2007,

46 U.S.C. § 688.

4a

Appendix A

the trial court summarily denied Caesars:

motion and granted Conder’s motion

RDI/Caesars Riverboat Casino, Inc. v. Conder, 896

N.E.2d 1172, 1173-74 (Ind. Ct. App. 2008) (Caesars J)

(internal footnote omitted). In Caesars /, the primary

issue was “whether the Riverboat is a ‘vesse

navigation’ under the Jones Act.” /d. at 1175.

lengthy examination of relevant precedent, this court

reached the following conclusions:

like the majority of cases in which a riverboat

casino was found not to be a vessel in

navigation, the Riverboat was theoretically

capable of being in navigation but wa

intended to be removed from navigation and

was practically unable to navigate except in

It is undisputed that

since 2002, the Riverboat’s operations have

been entirely gaming-related, and not

maritime in nature. In other words, the

tiverboat is an indefinitely moored dockside

casino with no transportation function on

purpose. We agree with the Seventh Circuit

that “indefinitely moored dockside casinos are

not the kind of vessel that the Jones Act

addresses[, given]... the statute's purpose

of enhancing legal protections for seamen

‘regularly exposed to the ‘perils of the sea.’”

Howard |v. S. Ill. Riverboat Casino Cruises,

Ine. |, 364 3d [854, 857 (7th Cir. 2004 )] (citing

Chandris|v. Latsis], 515 U.S. 347, 369 (1995) ].

Append. 4

In sum, the Riverboat has been moored

to the dock since 2002. It has had no

transportation function since that time. It i

joined to the land by a number of cables. It)

connected to land-based utilities. Its owner:

intend that it remain stationary for the

foreseeable future. Thus, the Riverboat’

operations are gaming-related, rather than

maritime in nature, and that has been the case

since 2002. Conder, as a table games dealer

for the Casino, is simply not an employee who

is regularly—or at all—exposed to “the special

hazards and disadvantages to which they who

go down to sea in ships are subjected.’

McDermott] Int'l, Inc. v. Wilander], 498 U.S

(337, 354 (1991)| Under these circumstance

we cannot conclude that the Riverboat is a

vessel in navigation or that Conder is the type

of employee that the Jones Act is intended to

cover and protect. We find, therefore, that the

trial court erred as a matter of law by

granting Conder’s motion for partial summary

judgment and denying Caesars’s motion to

dismiss the Jones Aet count of Conder’

complaint. [IN |

IN. Conder included a second,

alternative, count in her complaint,

seeking relief as a seaman pro hac

vice—a Sieracki seaman. We infer

from the pleadings in the appendice

that the Casino included this count

Sa

Appendix A

The parties disagree about whether the Sieracki

doctrine has survived the 1972 amendment of the

Longshore and Harbor Workers’ Compensation Act.

33 U.S.C. §§ 901-950. We need not answer that question,

however, inasmuch as Conder is not entitled to relief as

a Sieracki seaman in any event. A prerequisite to

asserting such a claim is status as a longshoreman, and

to qualify as such, one must be engaged in “maritime

employment.” Herb’s Welding, Inc. v. Gray, 470 U.S. 414,

423-24 (1985) (stating that “maritime employment”

includes “those workers on the situs who are involved

in the essentia] elements of loading and unloading”);

see also Northeast Marine Terminal Co. v. Caputo, 432

U.S. 249, 267 (1977) (holding that it is “clear that persons

who are on the situs but not engaged in the overall

process of loading or unloading vessels are not

covered”). Here, Conder was a card dealer in a casino

that this court has already concluded was not maritime

in nature; therefore, she was not engaged in maritime

employment. Thus, Conder does not qualify as a Sieracki

seaman.

Furthermore, a Sieracki seaman claim requires the

involvement of a navigating “vessel.” See generally

Sieracki, 328 U.S. 85 (decision resting, in part, on the

unseaworthiness of the longshoreman’s vessel). Here,

we have already found in Caesars / that an indefinitely

moored dockside casino with no transportation function

or purpose does not qualify as a vessel in navigation.

896 N.E.2d at 1179. We further found that “the

Riverbvat’s operations are gaming-related, rather than

maritime in nature, and that has been the case since

Ya

{ppendix A

2002.” /d. at 1181. Under these circumstances, we find,

likewise, that the Riverboat does not qualify as a “vessel”

for the purpose of a Sieracki claim. Therefore, under

no circumstances is Conder entitled to relief on this

basis, and the trial court did not err by dismissing this

claim.

The judgment of the trial court is affirmed.

BAILEY, J.. and ROBB, J., concur.

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APPENDIX B — ORDER OF DISMISSAL OF THE

HARRISON CIRCUIT COURT, STATE OF INDIANA,

COUNTY OF HARRISON FILED JUNE 1, 2009

IN THE HARRISON CIRCUIT COURT

STATE OF INDIANA

COUNTY OF HARRISON

CAUSE NO. 31C01-0504-PL-18

TINA CONDER,

PLAINTIFF,

RDI/CAESARS RIVERBOAT CASINO, LLC AND

M/V GLORY OF ROME,

DEFENDANTS.

ORDER OF DISMISSAL

The Defendants, RDI/Caesars Riverboat Casino,

LLC and M/V Glory of Rome, by counsel and pursuant

to T.R. 12 (B) 1 and 12 (B) 6, having moved the Court to

dismiss Plaintiff, Tina Conder’s claim that she is a

“Sieracki seaman”, and the Court being sufficiently

advised as to the merits of said Motion;

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Appendix B

IT IS HEREBY ORDERED that the Court now

finds that Plaintiff is not entitled to treatment as a

Sieracki seaman under the Jones Act, and that there is

no subject matter jurisdiction for a claim against the

M/V Glory of Rome in this Court. Both claims are

therefore dismissed. Because these are the sole

remaining claims asserted by the Plaintiff, her

Complaint is hereby DISMISSED with PREJUDICE.

This is a final unappealable Order.

SO ORDERED this 1" day of June, 2009.

s/ [illegible]

Judge, Harrison Circuit Court

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APPENDIX C — ENTRY OF JUDGMENT AND

PARTIAL DISMISSAL OF THE HARRISON

CIRCUIT COURT, STATE OF INDIANA, COUNTY

OF HARRISON DATED AND FILED APRIL 3, 2009

IN THE HARRISON CIRCUIT COURT

STATE OF INDIANA

COUNTY OF HARRISON

CAUSE NO. 31C01-0504-PL-18

TINA CONDER,

PLAINTIFF,

y

RDI/CAESARS RIVERBOAT CASINO, LLC AND

M/V GLORY OF ROME,

DEFENDANTS.

ENTRY OF JUDGMENT AND

PARTIAL DISMISSAL

The Court, having considered the opinion of the

Indiana Court of Appeals issued in RDI/Caesars

Riverboat Casino, LLC and M/V Glory of Rome v. Tina

Conder, 31A04-0802-CV-40, November 25, 2008, 896 NE

2d 1172, 2008 A.M.C. 2861, hereby ORDERS that all

Plaintiff’s claims asserted under the Jones Act against

the Defendants are hereby DISMISSED with prejudice.

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Appendix C

The Court will further consider the Defendants’

Second Motion to Dismiss the claims remaining in this

matter, along with any responsive memoranda filed by

the Plaintiff.

SO ORDERED this 8rd day of April, 2009.

s/ [illegible]

Judge, Harrison Circuit Court

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APPENDIX D — OPINION OF THE

COURT OF APPEALS OF INDIANA

DATED AND FILED NOVEMBER 25, 2008

IN THE

COURT OF APPEALS OF INDIANA

No. 31A04-0802-C V-40

RDI/CAESARS RIVERBOAT CASINO, INC., and

M/V GLORY OF ROME,

Appellants-Defendants,

VS.

TINA CONDER,

Appellee-Plaintiff.

APPEAL FROM THE HARRISON CIRCUIT COURT

The Honorable H. Lloyd Whitis, Judge

31C01-0504-PL-18

November 25, 2008

OPINION -FOR PUBLICATION

BAKER, Chief Judge

Here, we must decide whether a riverboat casino

that is indefinitely moored to the shore is a “vessel in

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Appendix D

navigation” for the purpose of the federal Jones Act.!

We hold that it is not. Appellants-defendants RDI/

Caesars Riverboat Casino, Inc., and the M/V Glory of

Rome (collectively, Caesars) appeal the trial court’s order

granting appellee-plaintiff Tina Conder’s motion for

partial summary judgment and denying Caesars’s

motion to dismiss Conder’s complaint. Caesars argues

that the trial court erred as a matter of law by concluding

that an indefinitely moored, dockside casino was a

“vessel in navigation” pursuant to the Jones Act and

that Conder was a Jones Act Seaman. Finding that the

Jones Act does not apply, we reverse in part and remand

with instructions to dismiss Conder’s Jones Act claim

and for further proceedings on her Sieracki seaman

claim.

FACTS

Caesars operates a casino (the Casino) on the

riverboat M/V Glory of Rome (the Riverboat). The

Riverboat is a passenger vessel that is registered with

and regularly inspected by the U.S. Coast Guard. It has

its own engines and machinery, as well as navigation,

lifesaving, and fire-fighting equipment.

In August 2002, the Casino began exclusively

conducting dockside gambling pursuant to amendments

to Indiana state law that allowed casinos to stop cruising

and conduct gaming while dockside. Since that time, the

Riverboat has been moored and stationary with the

1. 46 U.S.C. § 688.

l6a

Appendix D

exception of rare tests conducted in compliance with

federal regulations. It is connected to the dock by eight

mooring lines, two double-up lines, three fuel hoses, a

sewage and water hose, and seven power cables. Since

August 2002, the Riverboat has not transported

passengers, cargo, or equipment.

3eginning in March 2002, Conder was employed as

a table games dealer in the Casino. On August 19, 2003,

and on subsequent occasions, Conder was repeatedly

bitten by fleas during the course of her employment at

the Casino. Treatment for her adverse reaction to the

flea bites included large doses of steroids, which

allegedly caused her to have a heart attack.

On April 26, 2005, Conder filed a complaint against

Caesars, seeking compensation for her injuries based

on the Jones Act or, in the alternative, pursuant to

Indiana worker’s compensation laws as a seaman pro

hac vicee—a Sieracki seaman. On March 26, 2007,

Caesars filed a motion to dismiss the complaint pursuant

to Indiana Trial Rule 12(B)(1).? On May 15, 2007, Conder

filed a motion for partial summary judgment, seeking a

declaration as a matter of law that she is a Jones Act

Seaman. The trial court held a hearing on the motion to

dismiss and the motion for partial summary judgment

on October 10, 2007, and on December 4, 2007, the trial

court summarily denied Caesars’s motion and granted

Conder’s motion. Caesars now appeals.

29 The motion to dismiss is not included in the record on

ht *

appeal.

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Appendix D

DISCUSSION AND DECISION

I. Standard of Review

A. Summary Judgment

In considering whether the trial court properly

granted partial summary judgment in Conder’s favor,

we observe that summary judgment is appropriate only

if the pleadings and evidence considered by the trial

court show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law. Owens Corning Fiberglass

Corp. v. Cobb, 754 N.E.2d 905, 909 (Ind. 2001); see also

Ind. Trial Rule 56(C). On a motion for summary

judgment, all doubts as to the existence of material

issues of fact must be resolved against the moving party.

Owens Corning, 754 N.E.2d at 909. Additionally, all facts

and reasonable inferences from those facts are

construed in favor of the nonmoving party. /d. If there

is any doubt as to what conclusion a jury could reach,

then summary judgment is improper. /d.

An appellate court faces the same issues that were

before the trial court and follows the same process.

Id. at 908. The party appealing from a summary

judgment decision has the burden of persuading the

court that the grant or denial of summary judgment was

erroneous. /d. When a trial court grants summary

judgment, we carefully scrutinize that determination to

ensure that a party was not improperly prevented from

having his or her day in court. /d.

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Appendix D

B. Motion to Dismiss

In considering whether the trial court properly

denied Caesars’s motion to dismiss the complaint

pursuant to Trial Rule 12(B)(1), we note that our review

depends upon what occurred in the trial court. GAN

Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). Here,

the trial court did not conduct an evidentiary hearing;

instead, it relied on a “paper record.” /d. Thus, we apply

a de novo standard of review to the trial court’s order.

Id.

l/l. The Jones Act

The law has long recognized seamen as a special

group of workers who are entitled to certain protection:

not afforded to their land-based counterpart

traditional seamen’s remedies ... have been

universally recognized as... growing out of

the status of the seaman and his peculiar

relationship to the vessel, and as a feature of

the maritime law compensating or offsetting

the special hazards and disadvantages to

which they who go down to sea in ships are

subjected

McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 354,

111 S. Ct. 807, 112 L. Fed 2d &66 (1991). Among other

benefits, workers who qualify as Jones Act seamen may

sue their employer directly in a civil action for

negligence. 46 U.S.C. § 688. They may also sue their

19a

{ppendi x D

employer for a vessel’s unseaworthine Mitchell 4

Trawler Racer, Inc., 362 U.S. 5389, 542, 80 S. Ct. 926, 4

LL. ed. 2d 941 (1960).

The United States Supreme Court has established

a two-prong test for determining whether an employee

is a Jones Act Seaman. Chandris v. Latsis, 515 U.S

347, 368, 1158. Ct. 2172, 132 L. Ed. 2d 314 (1995). First,

the employee must establish that she hus a substantial

4

employment-related connection to a “vesse] in

navigation|.|” /d. Second, the employee must establish

that her duties contributed to the function of the vesse]

or the accomplishment of its mission. /d. The Court

explained that the “Jones Act remedy is reserved for

sea-based maritime employees whose work regularly

exposes them to ‘the special hazards and disadvantage:

to which they who go down to sea in ships are

subjected.’” /d. at 370 (quoting Seas Shipping Co. v

Sreracki, 328 U.S. &5, 104, 66S. Ct. $72, 90 L. led. 1099

(1946) (Stone, C.J., dissenting’)).

The primary issue in this appeal is whether the

Riverboat is a “vessel in navigation” under the Jone

Act. The United States Supreme Court’s most recent

exploration of the issue occurred in Stewart v. Dutra

Construction Company, 5438 U.S. 481, 125 S. Ct. 111%,

160 L. Ed. 2d 932 (2005). The Stewart Court considered

whether a floating dredge called the Super Scoop was a

“vessel in navigation,” describing its relevant

characteristics as follows:

The Super Scoop is 4 massive floating platform

land] has certain characteristics common

furvbout

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and cables. Whe

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Appendix D

capable of being used” for maritime

transportation. A ship long lodged in a

drydock or shipyard can again be put to sea,

no less than one permanently moored to shore

or the ocean floor can be cut loose and made

to sail. The question remains in all! cases

whether the watercraft’s use “as a means of

transportation on water” is a practical

possibility or merely a theoretical one... .

{T]he Super Scoop had not been taken out of

service, permanently anchored, or otherwise

rendered practically incapable of maritime

transport.

ld. at 496. Therefore, the Court concluded that the

dredge was a “vessel in navigation” pursuant to the

relevant statutory definition. /d. at 497.

The Seventh Circuit Court of Appeals has explored

this issue ou at least two occasions. In Howard v.

Southern Illinois Riverboat Casino Cruises, Inc., the

court considered whether an employee of an indefinitely

moored riverboat casino was a Jones Act Seaman.

364 F.3d 854 (7th Cir. 2004).° The riverboat in Howard

ceased cruising along the Ohio River following a change

in I}linois state law in 1999 and was permanently moored

to the dock thereafter. /d. at 855. The casino did not

3. Howard was decided before Stewart. Although portior

of the Howard analysis may now be in tion in light of

Stewart, much of the opinion is consistent with Stewart and

there has been no suggestion that it has been overruled.

23a

Appendix D

transport passengers and was connected to land-based

utilities, though it could be disconnected from the dock

in fifteen to twenty minutes if needed. The riverboat

was classified as a passenger vessel by the United States

Coast Guard and employed a captain and crew qualified

to move the casino if needed.

The Seventh Circuit focused on the same precedent

as the United States Supreme Court later examined in

Stewart, noting that past cases “did not hinge upon

whether the vessel was ready and able to cruise, but

looked to the vessel’s purpose and actual use (whether

it was used to move or transport anything).” Jd. at 857

(citing Pavone v. Mississippi Amusement Corp., 52 F.3d

560, 570 (5th Cir. 1995)). The Howard court ultimately

concluded that “an indefinitely moored dockside casino

with no transportation function or purpose” is not a

vessel in navigation because “[rjecognizing that

indefinitely moored dockside casinos are not the kind

of vessels that the Jones Act addresses is consistent

with the statute’s purpose of enhancing legal protections

for seamen ‘regularly’ exposed to the ‘perils of the sea.””

Id. at 857 (citing Chandris, 515 U.S. at 369).

In 2006, the Seventh Circuit decided Jagliere v.

Harrah’s Illinois Corporation, which considered

whether admiralty jurisdiction had been properly

asserted over a lawsuit brought by a patron against a

riverboat casino operator. 445 F.3d 1012 (7th Cir. 2006).

Although the central issue in Tagliere is distinct from

the primary question at issue herein, some of the

analysis is relevant to this appeal. In considering

VA

2*td

Appendi i D

whether the riverboat casino was a “vessel” for the

purpose of admiralty jurisdiction, the Tagliere court

applied the Stewart rationale:

while the Supreme Court has now held that a

boat that “has been permanently moored or

otherwise rendered practically incapable of

transportation or movement” is not a “vessel”

for purposes of admiralty jurisdiction, Stewart

v. Dutra Construction Co., 543 U.S. 481, 494,

125 S.Ct. 1118, 160 L.Ed.2d 932 (2005), there

has been no showing that the boat in our case,

though stationary for the past two years, is

permanently moored in the Court’s sense

(disabled from sailing) and is thus the

equivalent of landfill.

Id. at 1013-14 (emphasis in original). Ultimately, the

eourt held that the district court had erred in dismissing

the suit for lack of jurisdiction,

though it is open to the defendant to show on

remand, if it can, that its boat was

permanently rather than merely indefinitely

moored when the accident occurred and was

or]

therefore no longer a “vessel

for purposes

of admiralty jurisdiction. The difference

between “permanently” and “indefinitely” in

this context is vague and has not been

explored by the parties. The Stewart case

suggests that the boat must be permanently

incapacitated from sailing. Yet maybe—by

25a

Appendix D

analogy to the difference between domicile

and residence—a boat also is “permanently”

moored when its owner intends that the boai

will never again sail, while if he has not yet

decided its ultimate destiny it is only

“indefinitely” moored. These are matters for

exploration on remand.

Id. at 1016 (emphasis added). Thus, although the

Seventh Circuit did not provide a final answer to the

question of how to determine the status of a moored

riverboat casino, it suggested that the intent of the

owner is a relevant factor to consider.

The United States District Courts of Indiana and

Illinois have also had occasion to consider whether

indefinitely moored riverboat casinos are vessels in

navigation pursuant to the Jones Act. Without

exception, these courts have concluded that the Jones

Act does not apply. In Karls v. Belterra Resort, Indiana,

LLC, an employee of a riverboat casino sued her

employer under the Jones Act for injuries she sustained

on the job. 4389 F. Supp. 2d 884 (S.D. Ind. 2006). The

riverboat was indefinitely moored in 2002 following an

amendment to Indiana state law. It was certified by the

Coast Guard as a passenger vessel, had a full-time crew,

steering controls, and navigational lights, and could be

unmoored and cruising on the Ohio River within five

minutes in an emergency situation and within forty-five

minutes to an hour for a normal cruise. The riverboat

had never applied for permanent mooring status. It was

connected to a number of land-based utilities and the

26a

Appendix D

owner intended it to be used solely as an indefinitely

moored casino.

The Larls court looked to Howard for guidance and

concluded that, like the casino in Howard, “the ‘Miss

Belterra’ is a vessel capable of cruising but it is not

intended to be used to transport persons or cargo. It

had not moved in over two and one-half years at the

time of plaintiff’s injury, and it has not moved since.”

Id. at 888. The court next examined Stewart and

emphasized that the United States Supreme Court

pointed out that structures “may lose their character

as vessels if they have been withdrawn from the water

for an extended period of time.” /d. at 889. Ultimately,

the Earls court held that the Miss Belterra was not a

vessel in navigation:

The “Miss Belterra,” though theoretically

capable of being in navigation, was intended

to be taken out of navigation by its owner, and

was made practically unable to navigate

except in emergency situations at the time of

the plaintiffs injuries. There is only a remote

possibility it will sail again. The “Miss

Belterra” was not a vessel in navigation at the

time of the plaintiff’s injuries. Though vessels

withdrawn from navigation can again be

returned to navigation (and in the future the

Jones Act could apply if the defendant decides

to offer gambling “cruises” on the Ohio), the

boat’s status at the time of plaintiff’s injury

d/a

Appendix D

did not expose it’s [sic] employees to the perils

of the sea.

Id. at 890.

In Ford v. Argosy Casino Lawrenceburg, _ F.

Supp. 2d _, 2008 U.S. Dist. LEXIS 23558, 2008 WL

817113 (S.D. Ind. Mar. 24, 2008), the Southern District

of Indiana considered the same issue—’ whether a

riverboat casino that is indefinitely moored to the shore

is a ‘vessel in navigation’ for purposes of the federal

Jones Act. The answer is no.” 2008 U.S. Dist. LEXIS

23558, [Jd.] at *1. As with the Miss Belterra, the Argosy

was indefinitely moored and exclusively operated as a

dockside casino beginning in 2002. The casino was not

used to transport people or goods on the water and had

no transportation function, though it had a full marine

crew, was regularly inspected by the United States

Coast Guard, was certified as seaworthy, and was

capable of commencing navigation within several

minutes if need be. After considering the relevant

caselaw—including Stewart, Howard, and Harls—the

court noted that the employee “has not come forward

with evidence that would show that future sailing had

become a ‘practical possibility’ instead of a ‘theoretical

one’ when he was injured.” 2008 U.S. Dist. LEXIS

23558, |/d.] at *5. Therefore, the court found that the

Jones Act did not apply and granted summary judgment

in the casino’s favor. See also, e.g., De La Rosa v.

St. Charles Gaming Co., Inc., 474 F.3d 185, 187 (5th Cir.

2006) (holding that indefinitely moored riverboat casino

was not a vessel in navigation for purpose of admiralty

28a

Appendix D

jurisdiction because, although the riverboat “was still

physically capable of sailing, such a use was merely

theoretical,” given that it was indefinitely moored to the

land by lines tied to steel pilings, was connected to land-

based utilities, had not been used as a seagoing vessel]

since 1991, and the owners did not intend to use it as

such; therefore, “{ijts operations are entirely gaming-

related, and not maritime in nature”); Martin v. Boyd

Gaming Corp., 374 F.3d 375, 377 (5th Cir. 2004) (holding

that indefinitely moored riverboat casino was not a

vessel in navigation under the Jones Act because “{t]he

rule has never been ‘once a vessel, always a vessei,’ [so

once the riverboat] was withdrawn from navigation so

that transporting passengers, cargo or equipment on

navigable water was no longer an important part of the

business in which the craft was engaged the craft was

not a vessel”); Wire v. Showboat Marina Casino P’ship,

F. Supp. 2d __, 2008 U.S. Dist. LEXIS 22044, 2008

WL 818310, *6 (N.D. Ill. Mar. 20, 2008) (holding that a

permanently moored riverboat casino is not a vessel in

navigation under the Jones Act, in part because the

employee “failed to point to any evidence that shows

that the Casino intends to ever move the Riverboat

Casino from the dock and turn it again into a vessel in

navigation”); Watson v. Ind. Gaming Co., LP, 337 F. Supp.

2d 951, 955 (E.D. Ky. 2004) (holding that an indefinitely

moored riverboat casino is not a vessel in navigation

under the Jones Act because the riverboat “has been

indefinitely moored and is no longer used, nor intended

to be used, for any river transportation function”).

Contra Bd. of Comm'rs of the Orleans Levee Dist. v.

M/V Belle of Orleans, 535 F.3d 1299, 1312 (11th Cir. 2008)

29a

Appendi x D

(holding that riverboat casino was a vessel for the

purpose of interpreting a maritime contract giving rise

to a maritime lien because the casino “maintained

functioning machinery and was capable of moving under

her own power... all her crew would have had to do

was unmoor her cables and start up her engine and the

[riverboat] would have been able to saill; fJurther, . .

the [riverboat] was capable of moving over water”);

Booten v. Argosy Gaming Co., 364 Ill. App. 3d 697, 848

N.E.2d 141, 146, 302 Ill. Dec. 141 (ill. App. Ct. 2006)

(holding that indefinitely moored casino was a vessel in

navigation because the riverboat “is clearly capable of

maritime transportation . .. [and] can be ready to cruise

in approximately five to seven minutes if an emergency

situation should arise”).

In this case, the Riverboat has been moored and

stationary since August 2002. It is connected to the land

by eight mooring lines, two double-up lines, three fuel

hoses, a sewage and water hose, and seven power cables.

Since August 2002, the Riverboat has not transported

passengers, cargo, or equipment. The Casino’s Director

of Marine Operations attested as follows:

5. The purpose of [the Riverboat] is no longer

the transportation of passengers, cargo or

equipment on the Ohio River, and has not

been so since August 2002.

The [Riverboat] now serves as a platform

on which to conduct gaming activities in

order to comply with the requirements of

30a

Appendix D

Indiana state law concerning casino

operations, and is indefinitely moored to

its dock. With the exception of tests

conducted in compliance with federal

regulations, the [Riverboat] has been

stationary since August 2(92, and will

remain indefinitely moored for the

foreseeable future.

Appellants’ App. p. 26.

Therefore, like the majority of cases in which a

riverboat casino was found not to be a vessel! in

navigation, the Riverboat was theoretically capable of

being in navigation but was intended to be removed from

navigation and was practically unable to navigate except

in emergency situations. See, e.g., De La Rosa, 474 F.3d

185 (observing that although the riverboat “was still

physically capable of sailing, such a use was merely

theoretical”); Ford, 2008 U.S. Dist. LEXIS 23558, 2008

WL 817113 at *5 (finding the Jones Act did not apply

because the plaintiff failed to “come forward with

evidence that would show that future sailing had become

a ‘practical possibility’ instead of a ‘theoretical one’ when

he was injured”); Farls, 439 F. Supp. 2d at 890

(emphasizing that although the riverboat was

“theoretically capable of being in navigation,” it “was

intended to be taken out of navigation by its owner, and

was made practically unable to navigate except in

emergency situations”). It is undisputed that since 2002,

the Riverboat’s operations have been entirely gaming

related, and not maritime in nature. In other words, the

31a

Appendix D

{iverboat is an indefinitely moored dockside casino with

no transportation function or purpose. We agree with

the Seventh Circuit that “indefinitely moored dockside

casinos are not the kind of vessel that the Jones Act

addresses|, given]... the statute’s purpose of enhancing

legal protections for seamen ‘regularly exposed to the

‘perils of the sea.’” Howard, 364 F.3d at 857 (citing

Chandris, 515 U.S. at 369).

Conder emphasizes that the Coast Guard has

continued to inspect the Riverboat and that Caesars has

not relinquished its Coast Guard Certificate of

Inspection. Conder argues that this fact necessarily

means that the Riverboat is a vessel in navigation under

the Jones Act. We cannot agree, inasmuch as many other

courts have considered indefinitely moored casinos that

were registered with and inspected by the Coast Guard

and concluded that they were not vessels in navigation

under the Jones Act. See, e.g., Martin, 374 F.3d at 376;

Howard, 364 F.3d at 856; Ford, 2008 U.S. Dist. LEXIS

23558, 2008 WL 817113, at *2; Farls, 439 F. Supp. 2d at

886; Watson, 337 F. Supp. 2d at 954. Cf Soloman v. Blue

Chip Casino, Inc., 772 N.E.2d 515, 520 (Ind. Ct. App.

2002) (holding that the mere fact of the Coast Guard’s

exercise of authority over a boat did not mandate a

finding that the boat fell within Jones Act jurisdiction).

Conder also argues that Caesars’s intent is irrelevant

and that, in any event, the affidavit of the Director of

Marine Operations is insufficient to support Caesars’s

argument. We acknowledge an apparent split between

the Circuit Courts of Appeal on the issue of the relevance

32a

Appendix D

of the casino owner’s intent to Jones Act applicability.

The Fifth and Seventh Circuits have concluded that

intent is relevant, while the Eleventh Circuit disagrees,

finding intent te be beside the point. Compare De La

Rosa, 474 F.3d at 187 (finding riverboat casino was not

a vessel in navigation, in part because the casino owners’

“intent was to use it solely as an indefinitely moored

floating casino”) and Tugliere, 445 F.8d at 1016

(observing that, perhaps, a boat is “‘permanently’

moored when its owner intends that the boat will never

again sail, while if he has not yet decided its ultimate

destiny it is only ‘indefinitely’ moored”) with Belle of

Orleans, 535 F.3d at 1311 (concluding that courts should

focus on whether the boat has been rendered practically

incapable of transportation or movement rather than

the shipowner’s intent in determining Jones Act

applicability).

We find the approach of the Fifth and Seventh

Circuits to be the better one, inasmuch as it is evident

that the shipowner’s intent is part and parcel of the

nature of the ship. If the owner intends to continue to

transport passengers from time to time or to continue

to take periodic cruises on the river, then that would

weigh heavily in favor of a conclusion that the ship 1s a

vessel in navigation. If, on the other hand, the owner

intends that the ship be moored indefinitely and that it

will never sail again, then that militates in favor of a

conclusion that the Jones Act does not apply. Whilk

perhaps not dispositive, we believe that the owner’

intent is. at least, relevant to the analy |

44a

Appendix 1D

Here, it is undisputed that Caesars intended that

the Riverboat be moored indefinitely and remain

stationary for the foreseeable future. Appellant's App

p. 26. Conder argues that the affidavit of the Director

of Marine Operations is insufficient, inasmuch as it

merely consists of a series of self-serving statement

Initially, we note that an affidavit supporting or opposing

summary judgment is acceptable so long as it is “made

on personal knowledge, ... set{[s] forth such facts a:

would be admissible in evidence, and... show|s|

affirmatively that the affiant is competent to testify to

the matters stated therein.” Ind. Trial Rule 56(f:). Here,

there has been no suggestion that Caesars’s affidavit

does not meet those requirement

k‘urthermore, we note that, in considering Jones Act

applicability, courts have routinely relied on similar

affidavits. See, e.g., Were, 2008 U.S. Dist. LEXIS 22044,

2008 WL 818310, at *7 (noting that “nothing prohibit

the Casino from presenting [an] affidavit as support for

its contention concerning the intent of the Casino

The Casino is merely required to present admissibl

evidence.”); Watson, 337 =. Supp. 2d at 954 (holding that

“twihile plaintiff argues that the affidavit of Argosy’

manager, who states that the casino has no intention ol

moving the riverboat on a regular basis in the future, |

uspect,’ plaintiff presents no evidence to cast doubt

on her testimony”). Here, likewise, Conder ha

presented no evidence disputing or casting doubt on

the testimony of the Director of Marine Operation

regarding Cuaesars’s intent for the Riverboat

operation. Thus, it is undisputed that Caesars does not

fppendix DP

ntend to re the Riverboat maritime operation

n the foreseeu »future

In sum, the Riverboat has been moored to the doch

since 2002. It has had no transportation function sinc

that time. It is joined to the land by a number of cable

It is connected to land-based utilities. Its owners intend

that it remain stationary for the foreseeable luture

Thus, the Riverboat’s operations are gaming- related

rather than maritime in nature, and that has been the

e since 2002. Conder, as a table pames dealer for the

Ino, | imply not an employee who is regularly

at all CXpo ed to “the pecial hazard and

udvantaves ti which they who vo down to seal nip

ube ole d 43 Mi aT yrmotl 1‘) | “if + | ridiec’y

¢ ¢]) ‘ ce We Canhno

verboal 4 VeSSeLIN NaVIPAalion or Al onder

Lype of employer that the Jones Act) ntended to coy

and protect. We find, theretore, thi ne trial courterred

matter o aoW DY Val onde!

hve hMdpyment ai the ty a} colin’ rs eresed ’

ind remanded with instructio! lo dish (conder

bore Act Claim with prepudaree and to Purthey]

proceedings on het } KI S@aumal i!

MATHIA nd BROWN, J micul

a

S0a

APPENDIX E — ORDER OF THE CIRCUIT COURT

OF HARRISON COUNTY, STATE OF INDIANA

DATED AND FILED DECEMBER 4, 2007

IN THE CIRCUIT COURT OF HARRISON COUNTY

STATE OF INDIANA

CAUSE NO. 31 CO1-0504-PL-18

TINA CONDER,

Plaintiff

V.

RDI/CAESARS RIVERBOAT CASINO, LLC And,

M/V GLORY OF ROME,

Defendants

ORDER GRANTING PARTIAL

SUMMARY JUDGMENT

(Entry for 11/8/07)

On October 10, 2007, the plaintiff’s Motion for

Partial Summary Judgment on the issue of Jones Act

status and defendant’s Motion to Dismiss for lack of

jurisdiction were heard and oral argument taken.

PRESENT: Kar) Truman, Esq.

Isaac H. Soileau, Jr., Esq.

admitted Pro Hae Vice

Attorneys for Plaintiff

Gene F. Price, Esq.

Attorney for Defendant

{ppendix E

| i

Based on the parties’ oral argument, legal

memoranda containing argument, citations and

evidence, the Court finds as follows:

1. That this matter is maritime in nature:

2. That the M/V GLORY OF ROME is a vessel in

navigation;

3. That plaintiff's duties contributed to the

function and/or mission of the vessel:

1. That plaintiff's connection to the vessel was

substantial in duration and nature.

). That plaintiff Tina Conder is a Jones Act

Seaman.

Itis therefore, ORDERED AND ADJUDGED that

plaintiff’s Motion for Partial Summary Judgment is

GRANTED on the issue of Jones Act Seaman status

and defendant’s Motion to Dismiss is DENIED.

SO ORDIERED this 4th day of December, 2007.

s/ H. Lloyd Whitis

H. LLOYD WHITIS, JUDGE

HARRISON CIRCUIT COURT

Sa

APPENDIX F — ORDER OF THE COURT OF

APPEALS OF INDIANA DENYING PETITION TO

TRANSFER OF JURISDICTION

DATED APRIL 15, 2010

CLERK

SUPREME COURT, COURT OF APPEALS,

AND TAX COURT

STATE OF INDIANA

CLERK OF HARRISON CIRCUIT CT.

203 COURTHOUSE

300 NORTH CAPITOL AVENUE

CORYDON, IN 47112

Cause Number

31A01-0907-C V-00348

Lower Court Number:

31C01L0504PL18

CONDER, TINA

V

RDI/CAESARS RIVERBOAT CASINO LLC ET AL

You are hereby notified that the SUPREME COURT

has on this day 4/15/10

39a

Appendix fF

THIS MATTER HAS COME BEFORE THE

INDIANA SUPREME COURT ON A PETITION TO

TRANSFER JURISDICTION FOLLOWING THE

ISSUANCE OF A DECISION BY THE COURT OF

APPEALS. THE PETITION WAS FILED PURSUANT

TO APPELLATE RULE 57. THE COURT HAS

REVIEWED THE DECISION OF THE COURT OF

APPEALS. ANY RECORD ON APPEAL THAT WAS

SUBMITTED HAS BEEN MADE AVAILABLE TO THE

COURT FOR REVIEW, ALONG WITH ANY AND ALL

BRIEFS THAT MAY HAVE BEEN FILED IN THE

COURT OF APPEALS AND ALL THE MATERIALS

FILED IN CONNECTION WITH THE REQUEST TO

TRANSFER JURISDICTION. EACH PARTICIPATING

MEMBER OF THE COURT HAS VOTED ON THE

PETITION. EACH PARTICIPATING MEMBER HAS

HAD THE OPPORTUNITY TO VOICE THAT

JUSTICE’S VIEWS ON THE CASE IN CONFERENCE

WITH THE OTHER JUSTICES.

BEING DULY ADVISED, THE COURT NOW

DENIES THE APPELLANT’S PETITION TO

TRANSFER OF JURISDICTION.

RANDALL T. SHEPARD, CHIEF JUSTICE

ALL JUSTICES CONCUR.

s/ |Kevin 8S. Smith]

Clerk, Supreme Court,

Court of Appeals and Tax Court

40a

APPENDIX G — 33 U.S.C. § 901

LONGSHORE AND HARBOR WORKERS’

COMPENSATION ACT

33 U.S.C. § 901 et seg. as amended in 1984

SHORT TITLE

SXCLUSIVENESS OF REMEDY AND

THIRD PARTY LIABILITY

See. 5. (a) The liability of an employer prescribed

in section 4 shall be exclusive and in place of all other

liability of such employer te the employee, his legal

representative, husband or wife, parents, dependents,

next of kin, and anyone otherwise entitled to recover

damages from such employer at law or in admiralty on

account of such injury or death, except that if an

employer fails to secure payment of compensation as

required by this Act, an injured employee or his legal

representative in case death results from the injury, may

elect to claim compensation under the Act, or to maintain

an action at law or in admiralty for damages on account

of sueh injury or death. In such action, the defendant

may not plead as a defense that the injury was caused

by the negligence of a fellow servant, or that the

employee assumed the risk of his employment, or that

the injury was due to the contributory negligence of the

employee. For purposes of this subsection, a contractor

shall be deemed the employer of a subcontractor’s

employees only if the subcontractor fails to secure the

payment of compensation as required by section 4.

4la

Appendix G

(b) In the event of injury to a person covered under

this Act caused by the negligence of a vessel, then such

person, or anyone otherwise entitled to recover

damages by reason thereof, may bring an action against

such vessel as a third party in accordance with the

provisions of section 33 of this Act, and the employer

shall not be liable to the vessel for such damages directly

or indirectly and any a;reements or warranties to the

contrary shall be void. If such person was employed by

the vessel to provide stevedoring services, no such action

shall be permitted if the injury was caused by the

negligence of persons engaged in providing stevedoring

services to the vessel. Jf such person was employed to

provide ship building, repairing, or breaking services

and such person’s employer was the owner, owner pro

hac vice, agent, operator or charterer of the vessel, no

such action shall be permitted, in whole or in part or

directly or indirectly, agains? the injured person’s

employer (in any capacity, including as the vessel’s

ewner owner pro hac vice, agent, operator, or charterer)

or against the employees of the employer. The liability

of the vessel under this subsection shall not be based

upon the warranty of seaworthiness or a breach thereof

at the time the injury occurred. The remedy provided

in this subsection shall be exclusive of all other

remedies against the vessel except remedies available

under this Act.

(c) Inthe event that the negligence of a vessel causes

injury to a person entitled to receive benefits under

this Act by virtue of section 4 of the Outer Continental

Shelf Lands Act (43 U.S.C. 1833), then such person, or

42a

{ppendix U

anyone otherwise entitled to recover damages by reason

thereof, may bring action against such vessel in

accordance with the provisions of subsection (6) of this

section. Nothing contained in subsection (b) of this

section shall preclude the enforcement according to its

terms of any reciprocal indemnity provision, whereby

the employer of a person entitled to receive benefits

under this Act by virtue of section 4 of the Outer

Continental Shelf Lands Act (43 U.S.C. § 1333) and

the vessel agree to defend and indemnify the other for

cost of defense and loss or liability for damages arising

out of or resulting from death or bodily injury to their

employees.