No Duty of Inspection for Motor Carrier Transporting Sealed Load Sara Scurlock and Tommy Eppling successfully obtained summary judgment on behalf of a defendant motor carrier, arguing there was no evidence of a duty, or breach of a duty to render the carrier liable to plaintiff. Plaintiff alleged that he sustained injuries while unloading cargo from a truck owned by the carrier and specifically, that the truck was improperly loaded and/or loaded with defective boxes. Because the truck was loaded by a third party, the plaintiff also argued that the carrier was negligent for failing to discover, and/or failing to correct or warn of an unreasonably dangerous condition that occurred during loading. Although plaintiff offered multiple expert opinions regarding a change in structural configuration and the carrier's duty of inspection under 49 C.F.R. §392.9, their theories did not establish a duty to inspect a sealed trailer, or that the motor carrier was a cause-in-fact of plaintiff's injuries. In sum, there were insufficient facts to overcome the record evidence that the carrier transported a pre-loaded, sealed trailer, and that the load was undisturbed when the seal was broken and the contents were inspected prior to plaintiff's accident. The carrier was dismissed from the litigation with prejudice.

No Liability for Fraudulent Claim Against Trucking Company Staines & Eppling recently obtained dismissals with prejudice of the lawsuits of two plaintiffs who claimed that a client's truck moved into their lane, striking their automobile and causing injuries. Fraud was suspected, as the truck driver was adamant that he never switched lanes, as plaintiffs claimed. A witness who was driving behind both vehicles was deposed and confirmed that the plaintiffs' vehicle twice attempted to strike the back of the client's truck before finally coming in to contact with it, revealing that the "accident" was in fact a set-up.

District Court Finds Government Contractors Immune Staines & Eppling successfully urged a Motion for Summary Judgment on behalf of a general contractor alleged to have caused property damage in conjunction with the federally funded Southeast Louisiana Urban Flood Control Projects (SELA) in Uptown New Orleans. The contractor was dismissed based on its immunity as a federal government contractor. The United States District Court, Eastern District of Louisiana considered the defense, as expanded by Boyle v. United Tech Corp., 487 U.S. 500 (1988) and specifically (1) whether the government approved reasonably precise specifications; (2) whether the work conformed to those specifications; and (3) whether the contractor warned of any dangers known to it, but not the government. After extensive briefing and argument by the parties, the district court found that the plans and specifications for the SELA projects were reasonably precise for each feature of construction implicated by the claims. The United States Army Corps of Engineers (USACE) approved the reasonably precise specifications and USACE's oversight and supervision, together with its acceptance of the contractor's work, was persuasive evidence of conformity with those reasonably precise specifications. Finally, the district court found that USACE knew of the risks associated with the construction activities and was chargeable with general knowledge that the construction had the potential to cause damage. Because there was no evidence that the contractors failed to report a dangerous condition unforeseen by USACE, the contractor satisfied the last prong of Boyle. The district court's ruling confirms that a federal government contractor who builds a project in accordance with reasonably precise plans and specifications, and whose work conforms to those specifications, will be immune from liability.

Jeff Peuler recently served on a panel of practitioners and judges from the Louisiana Supreme Court, appellate and district courts at the 2016 Tulane Law School orientation who sought to establish the importance of professionalism in the practice by exploring various situations that might create conflicts of interest.

Appellate Court Affirms Class Certification Denial in SELA Litigation Staines & Eppling successfully defended a general contractor at the appellate level, and precluded certification of a class estimated to include over 1000 property owners and residents within 1000 feet of the Dwyer Road SELA construction project.  The United States Fifth Circuit Court of Appeals maintained that a lawsuit which seeks to recover different damages caused by different acts committed by different defendants at different times over a five year period is inappropriate for class treatment.  In focusing on how causation would be evaluated at trial, the possibility of a formulaic model for damages, and whether mass torts were appropriate for class treatment, the Fifth Circuit concluded the district court did not abuse its discretion in finding that individualized issues of causation and damages would necessarily predominate, and affirmed the denial of class certification.  Although not a part of the original appeal, the Fifth Circuit also considered whether removal of the case from Civil District Court by the general contractor was proper, and found the district court properly maintained jurisdiction over the case based on the federal officer removal statute.

When Does a Duty to Defend Apply? Tony Staines, Craig Brewer and Corey Parenton obtained a partial summary judgment declaring that a Hull and Machinery policy did not give rise to a "duty to defend."  The ruling confirmed long-standing precedent that an insurance policy is controlled by its terms and provisions.  A Hull and Machinery policy, as an indemnity policy, requires only that the insurer reimburse the assured for defense costs which are properly covered under the policy and which erode the policy limits.  Conversely, a traditional liability policy obligates the insurer to provide a defense for its assured pursuant to its "duty to defend" language, with the defense costs paid separately from the limits of liability.  Thus, absent any policy language to the contrary, the Eastern District of Louisiana re-affirmed that a Hull and Machinery policy does not provide an obligation to defend the assured.

Trial Victory on Limited Bailment Staines & Eppling represented Bent Marine and their insurers in a lawsuit filed by a boat owner arising from damages which allegedly occurred while the owner's boat was at Bent Marine's Madisonville yard during Hurricane Isaac.  The plaintiff navigated his boat to Bent Marine's yard and left it for repairs.  Most of the repairs were made weeks before the hurricane's landfall and Bent Marine called plaintiff to inform him his boat was operable, although not 100% repaired since they were waiting on delivery of a hatch lift.  In conjunction with its hurricane preparations, Bent Marine again called plaintiff and left messages to pick up his boat, but he did not do so before the hurricane.  Bent Marine hauled the boat out of the water, placed it on blocks and removed the bilge plug.  When Isaac made landfall, the combination of rising flood waters and rain caused the Tchefuncte River to rise to an unprecedented level.  Flood waters inundated the Bent Marine yard and allegedly entered the boat through the bilge drain, totaling the vessel.  After a trial on the merits, the 22nd Judicial District Court found that plaintiff was authorized to pick up his boat and was encouraged to do so before the hurricane, therefore a limited bailment existed under general maritime law (i.e. plaintiff had shared access to his property) and there was no presumption of negligence against Bent Marine.  Plaintiff was required to prove that Bent Marine deviated from the standard of care expected of a reasonably prudent repair yard in similar circumstances.  Because Bent Marine implemented its hurricane protection plan and exercised ordinary care in its actions to protect the plaintiff's boat, the Court found plaintiff failed to meet his burden of proof.  As a result, a Judgment was entered in favor of Bent Marine and plaintiff's claims were dismissed with prejudice.

David C. Bernard joins the firm as an associate.

Staines & Eppling recently presented "Employment Issues Facing the Maritime Industry," a free seminar offered in conjunction with the International WorkBoat Show in New Orleans, Louisiana.  Topics by Julie Kammer included FLSA issues in the Maritime Industry, a discussion of the similarities and differences between the FLSA's and Jones Act's definitions of "seaman," how "independent contractors" are treated under the FLSA, and the potential for employer liability for miscategorization under the Act. Jason Kenney joined and offered insight on "How to Handle Root Cause Analyses So you Don't Shoot Yourself in the Foot," with tips for answering difficult questions in a RCA that may be required by a client, as well as how to create internal RCA forms to avoid liability issues in litigation.

Summary Dismissal of Jones Act, Unseaworthiness and Vessel Negligence Claim Corey Parenton and Craig Brewer recently obtained a summary judgment verdict in the United States District Court, Middle District of Louisiana. The plaintiff-employee alleged that he was a Jones Act seaman who was injured when he fell into an empty barge, suffering a traumatic brain injury, a fractured pelvis and a number of other serious injuries.  His wife asserted a claim for loss of consortium.  Hearing the matter on the briefs, the district court ruled that the plaintiff was not a seaman, as he lacked the requisite connection to a vessel in navigation.  The district court also concluded that plaintiffs could not present any evidence to establish fault on the part of the defendant-employer.  Accordingly, the claims of both plaintiffs were dismissed in their entirety with prejudice.

Staines & Eppling obtained a Judgment dismissing punitive damages claims asserted against a vessel operator as the court found those damages are not available under the general maritime law. While another section of the Eastern District of Louisiana, in a case titled Collins v. A.B.C Towing, LLC, recently held that punitive damages were available against a non-employer under the general maritime law, Staines & Eppling was able to convince Judge Susie Morgan that both the Supreme Court and the Fifth Circuit have precluded punitive damages against non-employer's under the general maritime law. Accordingly, Judge Morgan, in a well-reasoned opinion, agreed with our brief holding that punitive damages are not available under the general maritime law for allegations of negligence or unseaworthiness. Please click here to see Judge Morgan's entire decision.

Staines & Eppling was honored as one of the 2015 LSU 100: Fastest Growing Tiger Businesses during the LSU 100 Honoree Luncheon, on Friday, October 23, 2015, at the L'Auberge Casino Hotel Baton Rouge. The LSU 100 is hosted by the LSU Stephenson Entrepreneurship Institute (SEI), housed in the E.J. Ourso College of Business.  The event identifies, recognizes and celebrates the 100 fastest growing companies owned or led by former LSU students and alumni.  For a full list of honoree companies, please visit www.lsu100.com.

Jason Kenney was invited to present at the first annual Marine Risk and Claims Seminar ("MRCS") on October 16, 2015 in Port Fourchon, Louisiana.  Jason discussed "Punitive Damages for the Failure to Pay Maintenance and Cure" during a presentation shared with Christian Kelly, Claims Manager at Osprey Underwritng Agency Limited.  The seminar was a resounding success and was followed by a fishing tournament at Moran's Marina.

Apportionment of Fault for Basket Transfer Staines & Eppling obtained a favorable judgment for a crew boat company in the liability stage of a bifrucated trial in the United States District Court, Eastern District of Louisiana. The litiation involves three plaintiffs who claimed they were injured while being transferred by a personnel basket from a lift boat to the deck of a crew boat.  The plaintiffs were clear that they considered the crew boat company the "target" defendant and believed the crew boat company bore the majority of fault for the accident.  At trial, the district court considered the comparable fault and/or negligence of multiple defendants under general maritime law and rejected the theory that the crew boat company was liable on the basis that their deckhand mistimed the landing of the personnel basket.  Through the efforts of trial counsel and the liability experts, Staines & Eppling successfully thwarted plaintiffs' attempt to assign the majority of fault to the crew boat caption and its crew.  Instead, the district court concluded that while there was some negligence on the part of the crew boat captain for failing to initiate a conversation about the procedure of a basket transfer, the majority of negligence and liability (70%) rested with a co-defendant's failure to communicate about transfer procedures and any visibility issues (in violation of express safety procedures requiring a work permit and a "dry run" before a personnel transfer).

Workers Compensation is Exclusive Remedy for Statutory Employer Following arguments and briefing on summary judgment, Staines & Eppling successfully obtained the dismissal of Entergy in a personal injury claim in the 29th Judicial District Court.  Pursuant to a written contract with another co-defendant, who was judicially determined to be the plaintiff's statutory employer, or under the two contract theory of La.R.S. 23:1061, Entergy was held to also be the statutory employer of plaintiff, which rendered his exclusive remedy in workers' compensation and not tort.

Consignment is Not a Joint Venture Staines & Eppling obtained a favorable ruling on summary judgment, resulting in the dismissal of a workers' compensation claim with prejduice.  Plaintiff was an employee of a convenience store, and sustained injuries when he was shot while leaving work.  The defendant was a lessor and consignor of gasoline only, and the trial court agreed that Plaintiff could not establish that his employer, who was a lessee/consignee of defendant, was in a joint venture with the defendant for the purpose of imposing workers' compensation liability.

Summary Dismissal of Jones Act Claim Jason Kenney and Corey Parenton obtained a summary dismissal of a plaintiff's claims for Jones Act negligence and unseaworthiness against his employer in the 29th Judicial District Court, Parish of St. Charles.  The plaintiff, who was employed as a captain of an inland tug, alleged he was injured while moving a cross-over hose.  He alleged that his employer was negligent in failing to provide him proper help or an alternative mechanical means to lift, as he described, unreasonably heavy items.  Defendants argued plaintiff could not prove negligence under the Jones Act because there was no actual or constructive notice of an unsafe conditoin, or an opportunity to correct it.  Further, because there was no evidence of an unreasonably dangerous condition, missing equipment or an unfit crew, plaintiff could not prove the elements required for an unseaworthiness claim.  Following oral argument, the trial court issued a judgment dismissing plaintiff's claims for Jones Act negligence and unseaworthiness in their entirety.

Staines & Eppling was one of 20 New Orleans area law firms who participated in the 2015 Food from the Bar Campaign coordinated by the New Orleans Chapter of the Association for Women Attorneys, and was recently announced as the per capita winner.  The annual competition among local firms serves as a fundraiser for Second Harvest Food Bank to assist with stocking extra supplies for summer months, when Second Harvest typically sees a rise in demand because children are not in school and are receiving subsidized meals. Overall, the campaign raised over $30,000 and 2,179 pounds of food, with this years' results representing a 39% increase over the 2014 campaign.  The success of this year's effort is a testament to the incredible teamwork and generosity from all the firms' employees.

On June 26, 2015, Tony Staines presented "Recent Maritime Law Developments in the 5th, 9th and 10th Circuits" at the Southeastern Admiralty Law Institute annual seminar.

No Duty or Third Party Liability Owed Summary judgment was granted for not one, but two clients in a lawsuit arising out of a fire to a Nabors' drilling barge, the BR-100. Third Party Demands were filed against Superior Derrick Services (SDS), the company who constructed and fabricated the drilling barge, for contribution, asserting SDS was ultimately responsible for designing, construction, procuring, installing, inspection and qualifying the BR-100 and all of its systems and equipment. After extensive briefing and argument by counsel, the court found there were no causes of action for contribution by either party against SDS pursuant to General Maritime Law or Louisiana law since SDS had no duty (contractual or extra-contractual) to the other defendants under the circumstances. Under the complex factual scenario, numerous interpretations of contracts and a line of U.S. Fifth Circuit cases, as well as the East River doctrine (which stems from the U.S. Supreme Court concerning liabilities arising out of the construction of vessels), were at issue. The decision limits a co-defendant's ability and scope of third party pleading in litigation arising out of the design and construction of vessels, even where General Maritime Law is applicable.

Louisiana Supreme Court confirms bad faith to name UM/UIM carrier solely to establish venue
Following an automobile collision in Terrebonne Parish, plaintiffs filed suit and named as defendants the other driver, his employer, and plaintiff's UM/UIM carrier. Defendants filed an Exception of Improper Venue and sought to have the case transferred. Although plaintiff conceded that adequate underlying coverage existed, he argued that there might be a significant deductible, the insured might file bankruptcy, or that the insurer might go out of business. The district court found that plaintiff did not name the UM/UIM insurer solely for the purpose of establishing venue in his home parish and was not in bad faith. In a 2-1 opinion, the Third Circuit Court of Appeal upheld the ruling. In a per curium opinion, the Louisiana Supreme Court found the evidence introduced at the hearing on the Exception establishes sufficient insurance coverage and that plaintiff did in fact act in bad faith in naming their UM carrier as a defendant.

Favorable judgment recognizing cause of action against agent for failure obtain requested policy limits
Staines & Eppling firm obtained a favorable judgment for our client, Cajun Sugar Cooperative, Inc. recognizing that an additional insured under an omnibus clause has a cause of action against the insurance agent for failing to obtain the requested limits under a policy purchased by the named insured.

Cajun contracted with a third party for transportation services for its co-operative members. The contractor was required to obtain auto liability insurance of $1,000,000.00 and to add Cajun as an additional insured. The contractor sent the contract to its insurance agent who added Cajun as an additional insured under an omnibus clause, but did not increase the policy limits to $1,000,000.00. The error came to light after an accident occurred, and Cajun filed a third party claim against the agent as a result of its failure to obtain the appropriate insurance. The agent filed an Exception of No Cause of Action asserting that Cajun had no privity of contract, and that the only party who could sue it was the now-defunct contractor. Cajun argued, and the court agreed, that Cajun is a third party beneficiary to the agreement between the contractor and the agent, and the agent owes a duty to the third party beneficiary under Louisiana law. When that duty is breached, the third party beneficiary has a cause of action against the agent.

Class Action Defeated
Plaintiffs sought to certify a class action of over 1000 property owners with complaints of property damage, emotional distress and stigma damages arising from construction activities associated with the Dwyer Road SELA Project. A team of Staines & Eppling attorneys, including Tommy Eppling, Craig Brewer, Sara Scurlock and James Crouch, successfully defeated the class by arguing that plaintiffs' claims failed to meet the requirements of Federal Rule of Civil Procedure 23, namely commonality, predominance and superiority.

Successful claim on contract and injunction to continue work
On June 4, 2015 Staines & Eppling appeared in the 25th Judicial District Court on behalf of Y&S Marine who was involved in a dispute with Swiftships Shipbuilders, LLC over the construction of a 200' FSV which centered on the late delivery of the vessel and Swiftships' decision to bar Y&S and its representatives from entering its shipyard.

Y&S filed an injunction to permit Y&S access to Swiftships' yard, to require delivery of the vessel, and to prevent Swiftships from denying Y&S access to its boat and equipment. Additionally, Y&S filed a Motion for Summary Judgment to have the court find that Swiftships was in breach of the vessel construction contract by virtue of the construction delay. After briefing and oral argument, the Court granted Y&S Marine's motions, holding Swiftships in default of the construction contract and granting the motion for injunctive relief.

Jason Kenney co-authored an article with Dominique Renaud, President of the Houston Business Insurance Agency, Inc. entitled Punitive Damages Present Hidden Risks in the Marine Market, which appears in the June 2015 edition of the Port Bureau News. The article covers the risk of punitive damages, and how they practically affect maritime employers and vessel owners and can be found at: http://www.txgulf.org/news/index.php#june2015

By invitation of the Lloyd's Market Association, Tony Staines, Craig Brewer and Jason Kenney presented to the Under 35 Marine and Entergy Claims groups Lloyd's of London. The presentation, US Marine & Energy Claims: An Interactive Legal Overview, on May 7, 2015, was an interactive workshop designed to provide attendees in the Lloyd's Market with a practical understanding of the process of evaluating and resolving marine and energy claims. It received a 100% positive rating from the attendees.

Supreme Court reversal of erroneous Third Circuit ruling on law of abandonment.
Service on all parties is required to constitute a step in the prosecution or defense of an action and therefore, discovery mailed to only one defendant is insufficient to interrupt toe accrual of the abandonment period. Although limited extrajudicial exceptions exist outside of the record, including notice scheduling a 10.1 discovery conference, like written discovery, such notice must be served on all parties. Moreover, participation in a discovery conference does not constitute a waiver. And finally, the Supreme Court confirmed that Clark v. State Farm Mutual Automobile Insurance Co., 00-3010, p. 11 (La.5/15/01), 785 So.2d 779, 787 cannot and should not be interpreted to suggest that interruption of the abandonment period as to one defendant applies to all defendants. Although there are some parallels between the concepts, there is absolutely no authority for engrafting the general rules of prescription into the law of abandonment.

Staines & Eppling leverages a fraud defense to obtain dismissal of a workers' compensation claim.
When evidence revealed a plaintiff continued to receive workers' compensation benefits after returning to work at heavy labor, Staines & Eppling drafted a Reconventional Demand for fraud, seeking a waiver of benefits and penalties and attorney's fees. After the Court stuck plaintiff's claim for indemnity and medical benefits, the plaintiff ultimately elected to dismiss all remaining claims for any late payment of benefits, penalties or attorney fees in exchange for a dismissal of the fraud claim.

Julie Kammer presents "Employment Issues Facing the Marine Industry," a free seminar offered in conjunction with the International WorkBoat Show. Topics included (1) how the Americans with Disabilities Act (ADA) is and is not implicated when an employee has an accident; (2) common misconceptions and hazards of various discrimination laws; and (3) best practices for how to avoid the potential for employer liability.

Sara Scurlock and Jason Kenney are elected shareholders.

Staines & Eppling recognized as one of the 2014 LSU 100: Fastest Growing Tiger Businesses, which identifies, recognizes and celebrates the entrepreneurial success of the fastest growing LSU-owned or LSU-led businesses in the world in various fields and professions including technology, oil and gas, insurance, healthcare, design, construction, manufacturing, public relations and law.

James Crouch joins the firm as an associate.