Bommarito v. Belle Chasse Marine Transp., CIVIL ACTION NO. 21-204

591 F.Supp.3d 115

BOMMARITO

v.BELLE CHASSE MARINE TRANSPORTATION, et al.

CIVIL ACTION NO. 21-204

United States District Court, E.D. Louisiana.

Signed March 17, 2022

Donald F. deBoisblanc, Donald Francis deBoisblanc, Jr., deBoisblanc & deBoisblanc, New Orleans, LA, Steven Michael Lozes, Courington, Kiefer, Sommers, Marullo & Matherne, New Orleans, LA, John A. Leslie, The Leslie Law Firm, LLC, Marietta, GA, for Bommarito, III, Susan Bommarito.

Donald F. deBoisblanc, Donald Francis deBoisblanc, Jr., deBoisblanc & deBoisblanc, New Orleans, LA, John A. Leslie, The Leslie Law Firm, LLC, Marietta, GA, for Bosit Bommarito, IV.

Joseph Alfred Devall, Jr., Kari M. Rosamond, Michael T. Amy, Paul D. Hale, Hale Devall, LLC, New Orleans, LA, for Belle Chasse Marine Transportation, LLC, Belle Chasse Land Transportation, LLC, Belle Chasse Land Transportation, Inc., Talisman Casualty Insurance Company, LLC.

SECTION "L" (5)

ORDER AND REASONS

ELDON E. FALLON, UNITED STATES DISTRICT JUDGE

Before the Court are Defendants’ Motion for Partial Summary Judgment on Seaman Status, R. Doc. 69, and Defendants’ Motion for Partial Summary Judgment on Vessel Negligence, R. Doc. 77. Plaintiffs filed oppositions to both motions, R. Docs. 75 and 83, to which Defendants filed replies, R. Docs. 82 and 97. Having considered the briefing and the applicable law, the Court now rules as follows.

I. BACKGROUND

Plaintiff Bosit Bommarito, III initially brought this Jones Act suit claiming injuries suffered in the course of his employment. Mr. Bommarito filed his Complaint and requested a jury trial on February 1, 2021. R. Doc. 1. Mr. Bommarito averred that he was a Jones Act seaman assigned to work as a crewmember aboard a crane barge known as OC160. Id. at 4. Mr. Bommarito alleged that he was injured while assisting in the movement of various gangway segments. Id. Mr. Bommarito claimed that, although he voiced concerns about the weight of the gangway segments, his supervisor refused to use a backhoe and instructed the crewmembers to move the segments themselves. Id. Mr. Bommarito claimed that the crane operator then recklessly lifted the segments without first performing a "rigging weight calculation." Id. at 4-5. Mr. Bommarito averred that without the backhoe's support, the equipment was insufficient to lift the gangway segment, causing one of the fabricated hooks to break. Id. Mr. Bommarito claimed that one of the "plate hooks broke loose and went flying and hit [him] in the head, knocking [him] onto the river batture." Id. at 5.

Mr. Bommarito alleged that he sustained serious injuries, including disabling and permanent injuries to his head, skull, eye, neck, shoulders, and spine. Id. Mr. Bommarito claimed that his eye was sunken into his skull and that he was experiencing neurological deficits and concussion syndrome. Id. Further, Mr. Bommarito claimed that he had a temporary total disability and a permanent partial disability. Id. Mr. Bommarito sought damages for lost earnings and earning capacity, physical and mental pain and suffering, past and future physical disability, and past and future medical and related expenses. Id. at 7. Mr. Bommarito also sought maintenance and cure, attorney's fees, and punitive damages. Id. at 8.

On March 15, 2021, Mr. Bommarito died at the age of forty-eight. R. Doc. 17-1 at 3. Susan Bommarito, Mr. Bommarito's mother, and Sheila Mae Callais, the legal tutor of Mr. Bommarito's minor children¹ , moved for substitution to pursue Mr. Bommarito's claims. R. Doc. 17. The Court granted the motion, substituting Susan Bommarito and Sheila Mae Callais as Plaintiffs, on May 3, 2021. R. Doc. 18. The Court later granted a request by plaintiff Bosit Bommarito, IV, one of Mr. Bommarito's two children, to be substituted as a party on his own behalf, having reached the age of majority. R. Doc. 74.

Plaintiffs filed a First Amended Complaint on May 13, 2021. R. Doc. 19. Plaintiffs allege that the previously-named Defendants have a common owner, Gordon Konrad. Id. at 2. Plaintiffs also add Talisman Insurance Company LLC as a Defendant. Id. at 1. Additionally, Plaintiffs now bring a wrongful death and survival action. Id. at 2. Plaintiffs allege that in December 2020, Mr. Bommarito had to undergo an emergency surgery due to his injuries. Id. Plaintiffs allege that Mr. Bommarito struggled to obtain post-operative pain management, which he sought from Defendants and which Defendants owed him, and accidentally overdosed on pain medication as a result. Id. In the survival action, Plaintiffs allege that Defendants are liable to Mr. Bommarito's children for Mr. Bommarito's pain and suffering between the initial incident and his death. Id. at 3. Plaintiffs further allege that Defendants are liable for the trauma that Susan Bommarito suffered while trying to resuscitate Mr. Bommarito after his overdose. Id.

Plaintiffs filed a Second Amended Complaint on May 17, 2021. R. Doc. 22. Plaintiffs now seek bystander damages for Susan Bommarito. Id. at 4. Plaintiffs also seek damages for loss of support for Mr. Bommarito's children. Id. at 5. Plaintiffs further seek punitive damages and attorney's fees, arguing that "Defendants’ wrongful actions in failing to provide pain management therapy to Mr. Bommarito were grossly negligent, reckless, willful, and wrongful in derogation of Mr. Bommarito's right to maintenance and cure." Id. Plaintiffs now seek $6,010,000 in itemized damages, including $1,000,000 for Mr. Bommarito's personal injuries, $500,000 for aggravation of these injuries (including survivorship damages), $1,000,000 in punitive damages, $500,000 for Susan Bommarito's mental anguish, $1,500,000 for each of Mr. Bommarito's children for their father's wrongful death, and $10,000 for funeral expenses. Id. at 6-7. Plaintiffs further seek maintenance and cure and attorney's fees and costs. Id. at 7.

Defendants have filed Answers to Mr. Bommarito's original complaint and to both of Plaintiffs’ Amended Complaints. R. Docs. 35, 36, 38. Defendants generally deny the allegations in Mr. Bommarito's original complaint and assert affirmative defenses, including that Mr. Bommarito failed to state a claim on which relief can be granted; that any injury Mr. Bommarito sustained was caused by his own negligence or the acts of third parties; that Defendants are entitled to limitation of liability; and that Mr. Bommarito's only remedy is worker's compensation. R. Doc. 35. Defendants also generally deny the allegations in Plaintiffs’ Amended Complaints and assert defenses including that Mr. Bommarito's own fault is a complete bar to Plaintiffs’ claims; that Defendants are not liable for Plaintiffs’ survival and wrongful death claims under La. R.S. § 9:2800.10, which provides immunity from liability for injuries sustained while committing a felony² ; and similar defenses to Defendants’ first Answer. R. Docs. 36, 38. On September 10, 2021, Plaintiffs filed another Amended Complaint asserting an alternative claim under 33 U.S.C. § 905(b) for the negligence of third parties, given that Defendants dispute Plaintiff's status as a seaman. R. Doc. 47.

II. PRESENT MOTIONS

a. Defendants’ Motion for Partial Summary Judgment on Seaman Status Under the Jones Act

Defendants seek summary judgment on the issue of Mr. Bommarito's status as a Jones Act seaman, arguing that Plaintiffs cannot prove the requirements for seaman status and that Plaintiffs’ claims for Jones Act negligence, unseaworthiness, and maintenance and cure must fail. R. Doc. 69. Plaintiffs oppose the motion, arguing that genuine disputes remain as to whether Mr. Bommarito met the requirements for seaman status based on which entity employed him, the extent of his work that took place on the water, and the nature of his work. R. Doc. 75.

b. Defendants’ Motion for Partial Summary Judgment on Vessel Negligence Under § 905(b)

Defendants seek summary judgment on Plaintiffs’ alternative claim for vessel negligence under 33 U.S.C. § 905(b), arguing that Belle Chasse Marine, the owner of the vessel, did not breach any of its duties as vessel owner and that the other relevant defendant, Belle Chasse Land, was not acting as owner of the vessel when Mr. Bommarito was injured; thus, Defendants argue, neither defendant can be held liable. R. Doc. 77. Plaintiffs oppose the motion, arguing that Belle Chasse Marine breached its duties as vessel owner and, alternatively, that Belle Chasse Land may also be liable for vessel negligence as an operator of the vessel. R. Doc. 83.

III. APPLICABLE LAW

a. Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed. R. Civ. P. 56(c) ). " Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Id. The moving party bears the burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548.

"A factual dispute is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is ‘material’ if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc. , 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). When ruling on a motion for summary judgment, a court may not resolve credibility issues or weigh...