Motts v. M/V Green Wave

Page 771

25 F.Supp.2d 771

Neville MOTTS v. M/V GREEN WAVE, Its Engine, Tackle, in Rem, and Its Owner and Operator, Central Gulf Lines, Inc., et al.

No. CIV. A. G-98-127.

United States District Court, S.D. Texas. Galveston Division.

November 6, 1998.

Richard Lee Melancon, Melancon and Hogue, Friendswood, TX, for Neville Motts.

Robert L. Klawetter, Eastham Watson Dale & Forney, Houston, TX, for Central Gulf Lines, Inc, LMS Shipmanagement, Inc.

Ronald L. White, Brown Sims Wise & White, Houston, TX, Mediator.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT LMS SHIPMANAGEMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

KENT, District Judge.

This a wrongful death and survival action resulting from injuries Neville Motts allegedly suffered on February 15, 1998 while serving as Chief Engineer aboard the M/V GREEN WAVE. Mr. Motts ultimately perished on March 20, 1998, and, thus, Plaintiff, Mr. Motts' wife, brings this case on her own behalf and as personal representative of Mr. Motts' estate. Presently before the Court is Defendant LMS Shipmanagement's Motion for Partial Summary Judgment, wherein Defendant LMS Shipmanagement argues that Plaintiff's negligence claim brought under general maritime law, Plaintiff's claim for damages under Texas wrongful death and survival statutes, and Plaintiff's prayer for punitive damages are each and all disallowed by law. For the reasons that follow, Defendant's Motion is GRANTED IN PART with respect to Plaintiff's claims under general maritime law and DENIED IN PART with respect to Plaintiff's claims under Texas law.

I. FACTUAL HISTORY

Plaintiff is the widow of Neville Motts, the former chief engineer aboard the M/V GREEN WAVE, a vessel owned and operated by Defendant Central Gulf Lines, Inc. ("CGL"). Defendant LMS Shipmanagement, Inc. ("LMS"), a Louisiana corporation, is the managing company for Defendant CGL. Defendant LMS had no employees of its own aboard the M/V GREEN WAVE at the time of Decedent's accident, but it employs personnel in its New Orleans office to ensure that injured or ill crew members on CGL ships such as the M/V GREEN WAVE receive proper and timely medical care.

On February 15, 1998, Decedent Motts suffered a broken pelvis and hip when he was struck by a massive cylinder head and pinned against a rail on the GREEN WAVE. The ship's officers reported the injury to Defendant LMS and informed LMS officers in New Orleans that Motts's medical condition was subject to potential complication because of a history of cardiovascular surgeries. However, no immediate action was taken. Instead, Motts was placed upon a mattress in the ship's office, where he remained for several weeks. He apparently received no medical attention.

The GREEN WAVE remained on the high seas for a time, primarily because the vessel was experiencing engine problems. The GREEN WAVE eventually requested and received assistance from a helicopter-equipped Coast Guard vessel. The responding Coast Guard personnel were not informed that Motts required immediate medical assistance, and he remained confined to the mattress despite the presence of the Coast Guard helicopter. The GREEN WAVE remained under tow by the Coast Guard for almost two weeks before reaching New Zealand. During that time, LMS officers in New Orleans continued to communicate with the GREEN WAVE about Motts's condition. However, he did not receive medical attention until the vessel reached New Zealand. From there, he was evacuated to Houston, where he underwent hip surgery on March 10. On March 20, Motts, apparently weakened from his travails, died of a heart attack.

Before his death, Motts had filed suit against Defendant CGL seeking damages under the Jones Act, 46 U.S.C.App. § 688, and general maritime law for negligence, unseaworthiness, and maintenance and cure. After his death, Motts's widow filed an amended complaint substituting her as Plaintiff. Subsequently, Mrs. Motts filed a second amended complaint adding claims of negligence and gross negligence under general maritime law or the Texas Wrongful Death Statute against Defendant LMS.

Now before this Court is Defendant LMS's motion for partial summary judgment. Defendant LMS argues that the Death on the High Seas Act, 46 U.S.C.App. §§ 761 et seq. ("DOHSA"), governs Plaintiff's claims against it. Because DOHSA controls, Defendant LMS argues, the Court must grant summary judgment against Plaintiff's claims for non-pecuniary damages. Moreover, LMS argues, DOHSA preempts all claims for wrongful death and survival damages made under the general maritime law or Texas wrongful death and survival statutes and requires the Court to grant summary judgment against all such claims asserted by Plaintiff.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When a motion for summary judgment is made, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Issues of material fact are "genuine" only if they require resolution by a trier of fact. See id. at 248, 106 S.Ct. at 2510. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. See id. at 247-48, 106 S.Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Dixon v. State Farm Fire & Casualty Co., 799 F.Supp. 691 (S.D.Tex.1992)(noting that summary judgment is inappropriate if the evidence could lead to different factual findings and conclusions). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

III. ANALYSIS

In this wrongful death and survival action, Plaintiff seeks, among other damages, recovery for her husband's pre-death pain and suffering, her own pain and suffering, the loss of his society, the mental anguish she has suffered since his death, and punitive damages for Defendant LMS's alleged gross negligence.¹ These damages sought by Plaintiff have been categorized as non-pecuniary by courts. See, e.g., Dooley v. Korean Air Lines Co., Ltd., ___ U.S. ___, 118 S.Ct. 1890, 1892, 141 L.Ed.2d 102 (1998) (pre-death pain and suffering non-pecuniary loss); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 619, 98 S.Ct. 2010, 2011, 56 L.Ed.2d 581 (1978) (loss of society non-pecuniary); Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir.1995) (punitive damages non-pecuniary in nature); Rohan for Rohan v. Exxon Corp., 896 F.Supp. 666 (S.D.Tex.1995) (loss of society and mental anguish each non-pecuniary in nature). Texas wrongful death law permits recovery of pecuniary, non-pecuniary, and punitive damages. See Tex. Civ. Prac. & Rem.Code Ann. § 71.002 (Vernon 1989). Likewise, general maritime law permits recovery for non-pecuniary damages such as loss of society. See Sea-Land Services v. Gaudet, 414 U.S. 573, 587-88, 94 S.Ct. 806, 816, 39 L.Ed.2d 9 (1974). However, Defendant LMS argues that Plaintiff is not entitled to recovery of those damages because DOHSA governs this action, and DOHSA prohibits recovery of non-pecuniary damages and entirely preempts all state law and general maritime law causes of action.

With respect to DOHSA's effect on claims for non-pecuniary damages and causes of action asserted under state or general maritime law, Defendant LMS is correct. DOHSA, which provides the exclusive cause of action for deaths "caused by wrongful act, neglect, or default occurring on the high seas...," 46 U.S.C.App. § 761, does not allow damages for non-pecuniary losses. 46 U.S.C.App. § 762; Dooley, ___ U.S. at ____, 118 S.Ct. at 1894; Miles v. Apex Marine Corp., 498 U.S. 19, 31, 111 S.Ct. 317, 325, 112 L.Ed.2d 275 (1990). Moreover, where DOHSA applies, it preempts all survival actions under general maritime law and all wrongful death and survival actions under state law. See Dooley, ___ U.S. at ____, 118 S.Ct. at 1894-95; Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 232, 106 S.Ct. 2485, 2499, 91 L.Ed.2d 174 (1986). Consequently, if DOHSA governs this action, the Court must grant summary judgment dismissing all of Plaintiff's claims for non-pecuniary damages and all causes of action asserted under both the general maritime law and Texas law.

The obvious issue, then, is whether DOHSA applies to this action. As its name might imply, the Death on the High Seas Act is limited in its application to areas not within the territorial waters of the states. 46 U.S.C.App. § 767. This means that, with a few exceptions not relevant to this action,² DOHSA governs only those actions arising more than a marine league beyond the shoreline of the nearest state. Plaintiff argues that because Defendant LMS's negligent action — the decision not to evacuate the decedent or provide medical attention onboard the M/V GREEN WAVE — occurred onshore, as did the decedent's ultimate death, DOHSA cannot govern this action. Defendant argues that the situs of the actual incident leading to the decedent's injury and ultimate death controls the question of DOHSA's applicability.

Neither party is precisely correct. DOHSA provides a cause of action "[w]henever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas ..." 46 U.S.C.App. § 761. The meaning of this text...