Cole v. Oceaneering Int'l, Inc.

681 F.Supp.3d 568

Darryl COLE v. OCEANEERING INTERNATIONAL, INC.

CIVIL ACTION NO. 21-1348

United States District Court, E.D. Louisiana

Signed July 11, 2023

Cayce Peterson, Grant Wood, James Edward Courtenay, Jeffrey Green, JJC Law LLC Sangisetty Law Firm, New Orleans, LA, Michael A. Mahone, Jr., The Mahone Firm LLC, New Orleans, LA, for Darryl Cole.

Michael A. McGlone, Richard C. Kean, Rachael Ferrante Gaudet, Kean Miller LLP, New Orleans, LA, for Oceaneering International, Inc.

SECTION: D (5)

ORDER AND REASONS

WENDY B. VITTER, United States District Judge

Before the Court is Plaintiff's Motion for Reconsideration of Order Granting Motion for Summary Judgment, filed by Darryl Cole.¹ Defendant, Oceaneering International, Inc. ("Oceaneering"), opposes the Motion,² and Cole has filed a Reply.³ Cole seeks reconsideration of this Court's April 26, 2023 Order and Reasons, in which the Court granted Oceaneering's Motion for Partial Summary Judgment and dismissed with prejudice Cole's Jones Act claims on the basis that Cole was not a Jones Act seaman.

Also before the Court is Plaintiff's Motion for Partial Summary Judgment on Jones Act Status.⁴ Oceaneering opposes that Motion, adopting the arguments made and evidence submitted in support of its Motion for Partial Summary Judgment,⁵ and Cole has filed a Reply.⁶

After careful consideration of the parties' memoranda and the applicable law, Cole's Motion for Reconsideration is GRANTED, the Court's prior Order and Reasons is VACATED in part, Oceaneering's Motion for Partial Summary Judgment is DENIED, and Cole's Motion for Partial Summary Judgment on Jones Act Status is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

This matter concerns a maritime personal injury. The pertinent facts and procedural history of this case were fully recited in the Court's April 26, 2023 Order and Reasons,⁷ and will not be restated herein. In that Order and Reasons, the Court concluded that Cole failed to raise a genuine dispute regarding his status as a Jones Act seaman. Applying the two-part substantial connection test set forth in Chandris, Inc. v. Latsis, the Court concluded that while Cole's work as a crane operator aboard the M/V OCEAN PATRIOT, which was owned and operated by Oceaneering, contributed to the function of the vessel and the accomplishment of its mission as a diving support vessel,⁸ Cole's connection to the M/V OCEAN PATRIOT was not substantial in duration based upon Cole's time aboard Oceaneering vessels during his three-year employment with his direct employer, Huisman North American Services, LLC ("Huisman").⁹ The Court did not address whether Cole's connection to the M/V OCEAN PATRIOT was substantial in nature, since that issue was not addressed by the parties.¹⁰

A. Cole's Motion for Reconsideration

Cole moves for reconsideration of the Court's April 26, 2023 Order and Reasons, arguing that the Court erred in concluding that he does not satisfy the duration prong of the Chandris substantial connection test on the basis that he did not spend 30% of his total time employed by Huisman working aboard Oceaneering vessels.¹¹ Cole asserts that because there is no evidence that he was a land-based employee, the Chandris test is not applicable in this case.¹² Cole points to Meaux v. Cooper Consolidated, LLC, a case in which another Section of this Court found the Chandris 30% analysis irrelevant where, like here, the plaintiff was not a land-based employee and spent 100% of his time working aboard a vessel for his Jones Act employer.¹³ Cole urges the Court to reach the same result in this case, since it is undisputed that he was not a land-based worker and spent 100% of his time working on vessels at sea.¹⁴ Cole also asserts that the Court erred in discounting the analysis employed by the district court in Bayham v. Grosse Tete Well Serv., Inc., claiming that it remains relevant authority and supports his position that he was a seaman at the time of his injuries.¹⁵

Cole further argues that if the Court insists on applying the Chandris 30% analysis to his employment period with Huisman rather than Oceaneering, his reassignment from Hornbeck Offshore Services LLC ("Hornbeck") vessels to Oceaneering's M/V OCEAN PATRIOT was a fundamental change in assignment.¹⁶ Cole claims that this change in assignment "either establishes Mr. Cole's seaman status as a matter of law or at the very least raises a fact question regarding whether Mr. Cole was permanently assigned to the DSV Ocean Patriot and/or whether that was a change in assignment that would provide an exception to the 30% test."¹⁷ Cole further asserts that the Court, in reviewing its prior Order and Reasons, should address the six pending motions and cross-motions filed by Cole and Oceaneering regarding seaman status, vicarious liability, and borrowed servant status, which Cole contends are intertwined.¹⁸

Oceaneering opposes the Motion, asserting that Cole merely recites the same arguments that were before the Court when it issued its April 26, 2023 Order and Reasons, which arguments are unsupported by summary judgment evidence.¹⁹ Oceaneering claims that in ruling on its Motion for Partial Summary Judgment, this Court properly considered all undisputed facts, as supported by the evidence in this case, the Court's ruling was proper, and Cole has not established a legitimate justification for the immediate reconsideration of the Court's April 26, 2023 Order and Reasons. Oceaneering further asserts that Cole ignores the undisputed fact that he was merely a land-based worker who happened to be on an Oceaneering vessel at the time of his injuries, thereby rendering application of the Chandris 30% analysis relevant and critical to the analysis of his seaman status.²⁰ Oceaneering points out that Cole was never permanently assigned to Oceaneering's vessels and that he is an itinerant worker who had multiple, transitory, and different assignments to many distinct, unrelated vessels over the course of his employment with Huisman.²¹ Oceaneering argues that Meaux makes clear that the 30% test applies in such circumstances, and the fact remains that Cole does not satisfy the substantial duration element of the Jones Act seaman test.²² Oceaneering further asserts that granting reconsideration would result in unnecessary delay of this case, which is set for trial in July 2023.²³ Oceaneering notes that Cole is not left without a remedy, as he could qualify as a longshoreman under the Longshore and Harbor Workers' Compensation Act, and that he maintains a right to appeal the Court's decision.²⁴

In response, Cole maintains that he is not a land-based worker and points out that Oceaneering did not claim that he was a land-based worker in its Statement of Uncontested Facts filed with its Motion for Partial Summary Judgment.²⁵ Cole asserts that Oceaneering has already admitted that he was assigned to the M/V OCEAN PATRIOT,²⁶ and further claims that the only remaining question is whether that assignment was more or less permanent, as that term is used by the Fifth Circuit.²⁷

B. Cole's Motion for Partial Summary Judgment on Jones Act Status

Like Oceaneering, Cole also moved for partial summary judgment on his status as a Jones Act seaman.²⁸ Cole's arguments in support of summary judgment are similar to the arguments raised in his Motion for Reconsideration, namely that he is a seaman because he was a crane operator assigned to a diving support vessel and only worked aboard the vessel performing tasks essential to the mission and purpose of the vessel.²⁹ Cole asserts that the Chandris 30% analysis does not apply in this case because he was not a land-based worker who spent some of his time working on vessels and some of his time working shoreside.³⁰ Relying upon Bayham, Cole argues that he is a seaman because he "spent 100% of his working time in the service of vessels for the entirety of his employment with Huisman."³¹ Cole claims that one hitch aboard the M/V OCEAN PATRIOT would have been sufficient to satisfy the permanence aspect of his assignment, and that, "[t]wo hitches in a row is decidedly a significant amount of time."³² Because he was scheduled to work on the M/V OCEAN PATRIOT for an additional two hitches, Cole argues his connection to the vessel was substantial in nature.³³ Cole further asserts that he satisfies the first prong of the Chandris substantial connection test because he was undeniably doing the ship's work, his crane operation contributed to the mission and purpose of the M/V OCEAN PATRIOT, and he was part of the M/V OCEAN PATRIOT's crew.³⁴

In its Opposition brief, Oceaneering asserts that Cole's arguments "are essentially a recitation of the arguments raised by Plaintiff in response to Oceaneering's earlier filed Motion for Partial Summary Judgment on the same issues of seaman status (Rec. Doc. 45)."³⁵ As such, "Oceaneering submits that its Motion (Rec. Doc. 45) and Reply Memorandum in support thereof (Rec. Doc. 65) . . . should collectively serve as an Opposition to Plaintiff's cross-motion on those very same issues (Rec. Doc. 67)."³⁶ Relying on its prior briefing, Oceaneering maintains that Cole does not qualify as a Jones Act seaman because he lacked the requisite connection to a vessel, or identifiable group of vessels, at the time of his alleged injuries.³⁷ Oceaneering furth asserts that it "will submit additional briefing on the issue of Plaintiff's Jones Act seaman status should the Court so desire."³⁸

In response, Cole first asserts that Oceaneering failed to rebut his Statement of Uncontested Material Facts, which should be deemed admitted for purposes of his Motion.³⁹ Cole argues that Oceaneering is bound by its own admission that Huisman assigned him to the M/V OCEAN PATRIOT,⁴⁰ and further claims that Oceaneering has failed to present any evidence to contradict Cole's statements in his affidavit that he did not perform any land-based work while employed by Huisman or while assigned to the M/V OCEAN PATRIOT.⁴¹ Cole also...