Lovell v. Master Braxton, LLC

KEVIN LOVELL v. MASTER BRAXTON, LLC ET AL

CIVIL ACTION NO. 15-3978 SECTION "L" (5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

November 17, 2016

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. PROCEDURAL HISTORY

Plaintiff, Kevin Lovell, was employed as a seaman aboard the M/V Master Braxton. He alleges that while in the course of performing his duties he fell into the engine room of the vessel through a hatch which another member of the crew had opened and failed to close. Lovell claims that he sustained injuries to his arm and shoulder. On August 31, 2015, Lovell filed suit under the Jones Act and General Maritime Law against his employer and vessel owner, Master Braxton, LLC and Otis A. Cantrelle. The defendants deny all allegations including whether the incident actually happened.

This case came on for trial without a jury on October 6, 2016. The Court having carefully considered the testimony of all of the witnesses, the exhibits entered at trial, the record, and pursuant to Rule 52(a) of the federal Rules of Civil Procedure, makes the following findings of fact and conclusions of law. To the extent that any finding of fact constitutes a conclusion of law, the Court adopts it as such and to the extent that any conclusion of law constitutes and finding of fact the Court adopts it as such.

II. FINDINGS OF FACT

(1) Kevin Lovell ("Plaintiff" or "Lovell") was born on May 16, 1966. He is a resident of Louisiana and at all relevant times was a member of the crew of the M/V Master Braxton (the "Vessel"). Lovell has been working on vessels since he was 12 years old. He has a second grade education and can neither read nor write. R. Doc. 30 at 18-19.

(2) The Vessel is a shrimp boat that bears Louisiana vessel license number C450734 and is owned by Master Braxton LLC.

(3) Master Braxton LLC is a Louisiana limited liability company domiciled in Louisiana and at the time of the incident was owned by Otis Cantrelle Jr. and Ronald Anderson but between the incident and trial Ronald Anderson sold his interest to Otis Cantrelle Jr., so that at the time of trial, Otis Cantrelle was the sole owner of the Master Braxton LLC. R. Doc. 30 at 11.

(4) Lovell worked as a deck hand aboard the Vessel for a trip that began on January 24, 2014. During this trip Otis Cantrelle Jr. (the "Captain" or "Cantrelle") captained the Vessel and the other deck hand was James Verret ("Verret"). R. Doc. 30 at 21, 104.

(5) The Vessel has an opening or hatch in the deck in the interior space between the Vessel's living quarters and the stern deck. This hatch is normally covered by a metal grating. When the grating is removed there is access via a ladder to the engine room below. R. Doc. 30 at 34, 36, 87.

(6) At trial, Lovell testified that while the Vessel was underway on January 24, 2014, he was proceeding through the living quarters to the stern deck and fell into this hatch. According to Lovell, someone on the Vessel (he believes it was the other deck hand, Verret) had removed the grating in order to go below and failed to replace it. Lovellindicates that as he fell, his upper right arm became entangled and his feet dangled below, causing his right shoulder to bear his weight. He was quickly able to place his feet on the ladder and, with the help of Verret who saw him fall and came over and helped him, he got out of the hole and got back on deck. R. Doc. 28-29.

(7) Neither he nor Verret reported the incident to the Captain, who at the time of the incident was in the wheel house steering the Vessel. Lovell explains that he thought he was okay and did not want to leave the Vessel because he needed the work. He believes that the reason Verret didn't report the incident is because Verret also needed the work and was afraid he would be fired if he explained what had happened. At trial Lovell testified as follows:

"we didn't say nothing because [Verret] didn't want to say nothing because he was scared he would have got fired from the trip; and I didn't want to say nothing because I knew-I needed the money , and I knew they had a good trip, and I figured it might have been a pulled muscle"

In any event, the Captain was not informed about the incident and the Vessel proceeded to conduct its shrimping operation. R. Doc. 26-30.

(8) Lovell testified that he was able to perform his job duties - despite suffering some pain in his right shoulder - by modifying his methods of performance and avoiding painful movements, such as overhead lifting, as much as possible. R. Doc. 30 at 45, 65-66. The trip was successful and lasted until February 10, 2014. At the end of the trip, Verret and Lovell were each paid $5,150.00 for their respective share of the catch. R. Doc. 30 at 51.

(9) There is a serious conflict in the testimony. Verret denies that he removed the hatch grating, claims that he did not see Lovell fall, and claims he did not help him to get out ofthe hole. R. Doc. 30 at 135. The Captain and owner of the Vessel, Cantrelle, testified that he did not see Lovell fall and was not advised that anything happened. R. Doc. 30 at 112. He also periodically saw Lovell working throughout the trip and did not notice anything unusual in the way Lovell did his job. R. Doc. 30 at 108. It is incumbent on a judge in a bench trial to listen carefully to the witnesses and evaluate their credibility in light of all the evidence. The Court concludes that the Captain was a credible witness but his testimony was not directly in conflict with the testimony of the Plaintiff and does not rebut it. The Captain was in the wheelhouse at the time of the incident and could not see the area in question. Accordingly he can't say from first-hand knowledge whether or not an incident occurred. The fact that he was not told about the incident is not in dispute - everyone agrees that he was not told and no report of any accident was filed. The Captain does say that he saw the plaintiff do his work and it did not appear that he had any problem carrying out his duties. At first blush, this seems to conflict with Plaintiff's version of the events but on a closer examination of the evidence the apparent conflict can be readily explained and does not rebut Plaintiff's version of the facts. Plaintiff testified that he was able to do his work and was doing his best to carry out his duties without appearing to have any problem because he was trying to stay on the Vessel so he could earn money. Moreover, the Captain admits that he did not stop and carefully watch Plaintiff work. The Captain only saw Plaintiff when he, the Captain, periodically left the wheelhouse and went on deck to check on the sample test shrimp net. R. Doc. 30 at 108. Accordingly, the Captain's testimony is not in actual conflict with Plaintiff's testimony. However, the same cannot be said about Verret's testimony - his testimony is in direct conflict with Plaintiff's testimony. Plaintiff says that Verret saw him fall in the hole andhelped him to get out; Verret says he did not see Plaintiff fall in the hole or help him to get out. R. Doc. 30 at 135. There is no way to explain the conflict except to conclude that one is an accurate historian and one is not. The Court paid close attention to these two witnesses and observed their demeanor while they testified. The Court concludes that, as between these two witnesses, particularly when the record is considered as a whole, Plaintiff is the accurate historian and his version of the facts is supported by the predominance of the evidence. There is no evidence that Plaintiff was injured prior to boarding the Vessel and there is nothing to indicate that he was in pain or discomfort at the time he boarded. When Plaintiff left the Vessel at the end of the voyage he had pain in his right shoulder. It is clear that something happened aboard the Vessel, which he reported to the emergency room doctor at Thibodaux Regional Hospital. Pl.'s Ex. 4. The Court finds Plaintiff's testimony consistent with the facts and believable.

(10) After he left the Vessel, Lovell's shoulder pain persisted and on February 14, 2014, he went to the emergency room at Thibodaux Regional Medical Center with complaints of "persistent pain and soreness involving his right shoulder". R. Doc. 27 at 12. He was seen by Dr. Blainey Nicholas. Dr. Nicholas reported that Lovell advised him that, about a week before, he was working offshore on a boat when he fell, injuring his right shoulder. R. Doc. 27 at 12. Dr. Nicholas' examination revealed restricted movement in the right arm and shoulder with pain on overhead movement. R. Doc. 27 at 14. Lovell was given pain medication, his arm was put in a sling, and he was told to rest. R. Doc. 27 at 16, 30.

(11) Lovell's pain persisted and he was next seen at Chabert Medical Center on March 11, 2014, where he was treated for right shoulder pain. He had an MRI of his right shoulder on March 21, 2014, which revealed labral and rotator cuff tears in the right shoulder. Hereceived some steroid injections and medication to relieve his pain. After his MRI, Lovell tried to return to work aboard vessels to earn some money since he was not receiving any maintenance and cure. He had limited range of motion with his right arm but was able to perform some tasks including steering a vessel. In May of 2014, while he was steering a shrimping vessel, the vessel hit an unmarked partially-submerged dredge pipe and he was thrown into the wheel. This incident caused him pain but did not worsen or increase his shoulder injury. R. Doc. 30 at 95.

(12) Lovell was finally seen by an orthopedic surgeon who examined him and reviewed his MRI and concluded that surgery was required. On August 19, 2014, Lovell was admitted to Chabert Medical Center and Dr. Christopher Flowers performed arthroscopic surgery on Lovell's right shoulder. R. Doc. 26 at 7. Under regional and general anesthesia, Dr. Flowers repaired his shoulder tears. Lovell was discharged on August 20, 2014, and began post-op treatment which lasted until August

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