$100,000
Awarded

TD CITATATION 6 TD 8TH 7

Worker injured on ship sues under Longshore Act

Maritime*Longshoreman Act

Southern District Federal District Court

Jones v. Westcoast Marine Construction Inc., Case No. 02CV0359BEN (RBB). District (if any): San Diego. Judge: Roger T. Benitez. Bench trial: 5 days. Verdict/Judgment Date: 12/10/04.

Verdict/Judgment: Defense

Trial Counsel
Plaintiff: Rocky Kent Copley, Borton, Petrini & Conron, San Diego, CA.
Defendant: Thomas R. Kelleher, Walsh & Furcolo, San Diego, CA.
Defendant: Sterling J. Stires, Law Offices of Charles S. LiMandri, Rancho Santa Fe, CA.
Defendant: John Walsh, Walsh & Furcolo, San Diego, CA.
Intervenor: Thomas C. Fitzhugh, III, Fitzhugh, Elliott & Ammerman, Houston, CA.

Facts/Contentions
According to defendant: Plaintiff Timothy Jones was a 36-year-old ship repairman and Harbor Worker as defined by the Longshore and Harbor Workers’ Compensation Act. Plaintiff sued defendants in a third party action pursuant to § 905(b) of the Longshore Act [33 U.S.C. 905(b)]. The invtervenor was St. Paul Fire & Marine.

In late February 2001, Titan, a defense contractor, contacted defendant Westcoast Marine Construction Inc. and requested that Westcoast provide services for a job abroad the U.S. Navy vessel U.S.S. Constellation, which included providing a crane on board a barge on San Diego Bay, to perform lifting tasks on the U.S.S. Constellation. Westcoast was not in the business of operating cranes, so Westcoast contacted defendant A Trucking Crane Rentals & Repair Inc. (“ATC”) to provide the crane services for the subject job.

On March 5, 2001, using two tug vessels, the barge with the crane abroad was moved along the port side of the Constellation by defendant Westcoast. ATC’s crane operator directed the tugboat captains where the barge needed to be placed for the subject job. Once the barge was in place, crane operations conducted by ATC’s crane operator began by lifting an existing lifeboat canister platform off of the Constellation’s flight deck.

At the time the crane was operating at the Constellation, plaintiff was working aboard the ship as a welder/fitter for Titan. Plaintiff alleged that when the crane was lifting the old platform off of the Constellation the platform swung into him and caused severe injuries. Plaintiff claimed that he suffered a herniated disk in his lumbar spine, which required surgical fusion at the L5-S1 level. Plaintiff also claimed that he injured his right shoulder and right hand and suffered minor abrasions on the inside of his right leg. Plaintiff’s fusion surgery was not successful, and he alleged that he requires another back surgery. Defendants asserted that the failure of the first surgery was a direct result of reckless behavior and lifestyle of plaintiff.

Defendants disputed the nature and extent of plaintiff’s injuries. Specifically, defendants asserted that plaintiff only injured his right hand as a result of the alleged incident, and that the accident was not the fault of defendants in any way. Defendants further asserted that a second back surgery for plaintiff was not reasonable or necessary.

Defendant ATC contended that its crane operator was the “borrowed servant” of Westcoast. Westcoast vehemently denied this and proved that ATC paid the crane operator for the subject job, that ATC prepared the crane for the subject job, and that ATC ordered the operator to show up at the job. As the trial judge ruled that plaintiff failed to meet his burden of proof, the judge did not rule on the “borrowed servant” issue.

Claimed Injuries
According to defendant: Herniated disk L5-S1; surgery; right shoulder strain; leg abrasions; crush injury to right hand.

Claimed Damages
According to defendant: Plaintiff sought past and future medical costs, past and future loss of wages, and pain and suffering damages. Defendants cross-complained against each other for indemnity and declaratory relief.

Settlement Discussions
According to defendant: Demand: $3 million, reduced to $475,000 one week prior to trial. Offer: $30,000 by defendant Westcoast just prior to trial; $100,000 (CCP § 998) by defendant ATC.

Trial Experts
Plaintiff: William P. Curran Jr., orthopedist, Orthopedic Group of San Diego, San Diego, (619) 268-2224.
Plaintiff: Richard Holmstrom, economist, RGL Gallagher LLP, San Diego, (619) 236-0377.
Plaintiff: Jay William Preston, safety engineer, Los Angeles, (323) 776-3464.
Plaintiff: Roger A. Thrush, vocational rehabilitation consultant, San Diego, (619) 465-2784
Defendant: Carl E. Englund, human factors consultant, Julian, (760) 765-4663.
Defendant: Richard Greenfield, orthopedic surgeon, San Diego (858) 270-4420.
Defendant: Robert B. Hall, vocational rehabilitation consultant, Hall & Associates, La Mesa, (619) 463-9334.
Defendant: Gerald D. Martin, economist, Martin & Vavoulis, Fresno, (559) 439-8383.
Defendant: Donald Pellow, safety engineer, Pellow Engineering, Kansas City, (816) 931-4113

Expert Testimony
According to defendant: Defendant Westcoast’s crane safety, operations, and crane standard of care expert, Pellow, testified that Westcoast was not negligent and did nothing to cause the accident.

Defendant Westcoast retained A.N. Tillet & Associates of San Diego to conduct “Condition and Valuation” surveys of the two tugboats and barge for the purpose of Westcoast’s affirmative defense of the Limitation of Shipowners Liability Act.

Comments
According to defendant: The insurance carriers for defendant Westcoast were Insurance Company of the West and various London underwriters; the adjuster was Monica Zylstra; the investigator was Bill Bernard of Coast Claims. The insurance carrier for defendant ATC was Caliber One Insurance Company.

The Magistrate Judge was the Hon. Ruben B. Brooks.

Sterling J. Stires represented defendant Westcoast and provided the information for this report.