Fetter v. Maersk Line, Ltd.

JASON FETTER Plaintiff, v. MAERSK LINE, LIMITED and3MC MOBILE & MECHANICAL REPAIR LLC Defendants.

Civil No.: 2:14-cv-02108 (KSH)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

January 27, 2020

NOT FOR PUBLICATION

OPINION

Katharine S. Hayden, U.S.D.J.

Before the Court are motions for summary judgment filed by co-defendants Maersk Line, Limited ("Maersk") and 3MC Mobile & Mechanical Repair LLC ("3MC"), seeking dismissal of plaintiff Jason Fetter's claims. For the reasons set forth below, Maersk's and 3MC's motions for summary judgment are granted. Because the Court dismisses all of Fetter's claims against defendants as a matter of law, 3MC's pending motions in limine to exclude expert testimony are denied as moot.

I. Procedural History

On June 11, 2013, Fetter filed this matter in Texas state court. The suit was subsequently removed to the Southern District of Texas and transferred to this Court. Fetter's amended complaint alleges he was injured as a result of Maersk and 3MC's negligence (D.E. 28), and they filed crossclaims against each other for indemnity and contribution (D.E. 33, 34.)

On April 22, 2016, before discovery closed, Maersk moved for summary judgment, arguing that it is statutorily immune from liability. (D.E. 48, 58.) This Court denied the motion, finding that the record was insufficiently developed ("In short, the record is by no means definitive on the issue of Maersk's employer-employee relationship with Fetter, as it would need to be for a summary judgment ruling in Maersk's favor."). (D.E. 74.) Maersk unsuccessfully sought reconsideration. (D.E. 77.) After conducting further discovery, Maersk and 3MC filed these pending motions for summary judgment, which are fully briefed. (D.E. 111, 114-116, 118, 122-124.)

In this second round of dispositive motion practice, the parties' pending arguments can be summarized as follows. Maersk renews its legal argument that there is no genuine issue of material fact that it employed Fetter and thus had the ultimate right to control his performance, and as a result, is immunized from Fetter's negligence claims pursuant to the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq., which bars maritime employees from bringing tort actions against their employers.

3MC is moving for summary judgment for the first time. Preliminarily, 3MC adopts a position Maersk took in its first motion for summary judgment, that Fetter's role as a day engineer does not qualify him for seaman status under the Jones Act, 46 U.S.C. § 30104. Thereafter, 3MC joins the argument that Maersk employed Fetter. Based largely on new evidence produced in discovery, 3MC argues that Maersk never relinquished its control of Fetter and that 3MC employee Greg Higgs was a "borrowed servant," and any authority Higgs exercised over Fetter came from Maersk. Based on Higgs's status, 3MC contends that it also is immunized from Fetter's negligence claims under the LHWCA because Higgs and Fetter were co-employees.

Fetter has submitted opposition briefs to these motions that are similar to each other as well as to his brief opposing Maersk's prior summary judgment motion. He primarily relies on materials previously reviewed by the Court to argue that Fetter was supervised almost exclusively by 3MC, which raises, he argues, material issues requiring a factfinder to determine whether Maersk employed Fetter at the time of his accident. In addition, Fetter asserts that the question of whether he qualifies as a Jones Act seaman is a fact question for the jury.

II. Factual Background

As set forth in the Court's 2016 opinion, this case concerns the cargo ship the M/V MAERSK MONTANA ("MAERSK MONTANA") and Jason Fetter, who worked on the ship on October 9, 2012, and was injured. The focus is Fetter's status—as a seaman, or not, and, relatedly, as an employee of Maersk, or not—at the time of his injury. The record facts pertinent to these issues are as follows.

Maersk had a collective bargaining agreement ("CBA") with a seafarer's union, the Marine Engineers Beneficial Association ("MEBA"), which allowed Maersk to hire temporary "day engineers" to perform necessary repairs and maintenance when ships were called to port. (D.E. 114-11 ("Maersk SOF") ¶ 2.) Per the CBA, MEBA bills Maersk for these day engineers' wages, and Maersk pays the wages directly to MEBA. (Id.) MEBA then deducts taxes and union fees from the wages and remits the remainder to the day engineers. (Id.) If several maintenance projects are going on at once, Maersk will also hire an outside vendor to supervise the day engineers' work. (D.E. 114-6 ("Mark Anderson Affidavit") ¶ 7.)

Maersk owns and operates the MAERSK MONTANA. (D.E. 111-1 ("3MC SOF") ¶ 3.) On October 4, 2012, the ship's captain requested five MEBA day engineers to perform repair and maintenance tasks aboard the vessel while it was called to port in Newark, New Jersey on October 9, 2012. (D.E. 111-12 ("Maersk-MEBA Work Request Email").) Maersk also requested that its vendor, 3MC, through its employee Greg Higgs, supervise the day engineers performing the tasks. (D.E. 111-5 ("3MC-Maersk Purchase Order").)

Fetter joined MEBA in October 2010. (D.E. 111-6 ("Fetter Deposition"), at 16:21-23.) On October 8, 2012, while in between jobs, Fetter bid on and received the October 9, 2012 day engineer job aboard the MAERSK MONTANA. (Maersk SOF ¶ 12.) Fetter understood he was hired to work for only one day and would not sail with the ship. (Id. ¶ 13.) Fetter did not sign seaman's articles with Maersk.¹ (Maersk SOF ¶16.)

On October 9, 2012, Fetter and four other day engineers reported to the MAERSK MONTANA to perform various maintenance and repair projects in the ship's main engine room. (See Mark Anderson Affidavit ¶ 5.) After they boarded the ship, the MAERSK MONTANA's first assistant engineer, David Peterson, told 3MC engineer Greg Higgs and the day engineers about the tasks to be completed that day, showed them where tools were located, and ran through Maersk's procedures. (3MC SOF ¶ 16.) Thereafter, Higgs tasked Fetter and two of his colleagues with removing a stuck injector in the ship's main engine. (Mark Anderson Affidavit ¶ 6; see also D.E. 115-5 ("Christopher Zimmerman Report").) After Higgs suggested to Fetter and his colleagues how to complete the task, he left them to do the work and he went to another part of the ship to repair the auto start valve. (D.E. 111-11 ("Higgs Affidavit") ¶¶ 21-22.) While Fetter was attempting to remove the stuck injector, he was injured. (Fetter Deposition, at 73-74.) Higgs learned of Fetter's injury a few hours later. (Higgs Affidavit, ¶ 2.)

III. Discussion

A. Statutory Framework

As discussed in this Court's December 2016 opinion, the LHWCA "establishes a comprehensive federal workers' compensation program that provides longshoremen and their families with medical, disability, and survivor benefits for work-related injuries and death." Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 96 (1994). "As with most other workers' compensation schemes, this entitlement displaces the employee's common-law right to bring an action in tort against his or her employer . . . [and] limits employer liability to the provision of scheduled no-fault compensation payments." O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 62 (2d Cir. 2002); see also 33 U.S.C. §§ 904, 905(a). This compensation scheme creates a quid pro quo; "[e]mployers relinquish[] their defenses to tort actions in exchange for limited and predictable liability. Employees accept the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail." Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 951 (3d Cir. 1990) (citing Morrison-Knudsen Construction Co. v. Director, OWCP, 461 U.S. 624, 636 (1983)).

Employees eligible for LHWCA benefits include "any person engaged in maritime employment, including . . . a ship repairman." 33 U.S.C. § 902(4). While in certain instances an employee may bring a negligence action against his employer in his capacity as a vessel owner, this is not true when the employee is engaged in "repairing...services."² 33 U.S.C. § 905(b). Furthermore, the LHWCA expresslyexcludes from coverage "a master or member of a crew of any vessel." 33 U.S.C. § 902(3)(G).

While the LHWCA bars maritime workers from suing their employers for injuries incurred on the job, "seamen" can bring such actions under the Jones Act. See O'Hara, 294 F.3d at 62. "The LHWCA and the Jones Act complement one another." Id. Specifically, the "master[s] or member[s] of a crew" who are expressly excluded from the LHWCA's no-fault compensation regime are the "seamen" who are entitled to sue their employers for damages under the Jones Act. See Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 553 (1997). Thus, "[t]he Jones Act allows seamen to recover for negligence against their employers; the LHWCA authorizes maritime workers other than seamen to recover for negligence, but only against parties other than their employers." O'Hara, 294 F.3d at 62 (citing Chandris, Inc. v. Lastis, 515 U.S. 347, 355-56 (1995) (emphasis in original)).

B. Standard of Review

Summary judgment is warranted when the moving party demonstrates that "there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). An issue of fact is material and genuine if it "affects the outcome of the suit under the governing law and could lead a reasonable jury to return a verdict in favor of the nonmoving party." Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (quotation and alteration marks omitted). The party seeking summary judgment has "the burden of demonstrating that the evidentiary record presents no genuine issue of material fact." Id. And the Court must "view the evidence in the light most favorable to [the nonmoving party] and draw all justifiable, reasonable inferences in [his] favor." Sgro v. Bloomberg L.P., 331 F....