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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2231%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 893

## Text

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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

‘

3a

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.

1Oa
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;

lla
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

2a
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.

L3a
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

l4da
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

ISa
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.

l7a
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.

Lda
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

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2231%3A2. Public record. Not legal advice.