Cooper v. Vigor Marine, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ASHLEY COOPER,
Plaintiff,
vs.
VIGOR MARINE, LLC; VIGOR
INDUSTRIAL, LLC; BRANDSAFWAY
INDUSTRIES, LLC; BRANDSAFWAY,
LLC; BRANDSAFWAY SERVICES, LLC;
BRANDSAFWAY SOLUTIONS, LLC;
INTERNATIONAL MARINE AND
INDUSTRIAL APPLICATORS, LLC;
INDUSTRIAL VACUUM EQUIPMENT
CORPORATION; INDUSTRIAL VACUUM
SALES LLC; INDUSTRIAL VACUUM
INC.; PACIFIC EQUIPMENT SUPPLY
LLC; PACIFIC EQUIPMENT LLC,
Defendants.
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Civ. No. 22-00275 HG-RT
ORDER DENYING DEFENDANT INTERNATIONAL MARINE AND INDUSTRIAL
APPLICATORS, LLC’S MOTION FOR SUMMARY JUDGMENT (ECF No. 129)
On August 21, 2021, Plaintiff Ashley Cooper was employed to
conduct industrial painting and related repair work for Defendant
International Marine and Industrial Applicators, LLC, aboard the
U.S.S. William P. Lawrence, a U.S. Navy vessel. The vessel was
located at a graving dock at the Pearl Harbor Naval Shipyard in
Hawaii.
Plaintiff asserts that she was injured when her right arm
was sucked into an industrial vacuum while she was working aboard
the vessel.
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Plaintiff filed her lawsuit seeking damages for her injuries
against various sets of entities:
(1) DEFENDANTS VIGOR MARINE, LLC and VIGOR INDUSTRIAL, LLC,
the general contractors on the job site where Plaintiff
was injured;
(2) DEFENDANTS BRANDSAFWAY INDUSTRIES, LLC; BRANDSAFWAY,
LLC; BRANDSAFWAY SERVICES, LLC; and BRANDSAFWAY
SOLUTIONS, LLC, the subcontractors on the job site
where Plaintiff was injured;
(3) DEFENDANT INTERNATIONAL MARINE AND INDUSTRIAL
APPLICATIONS, LLC, Plaintiff’s employer;
(4) DEFENDANTS INDUSTRIAL VACUUM EQUIPMENT CORPORATION,
INDUSTRIAL VACUUM SALES, LLC, and INDUSTRIAL VACUUM
INC., who Plaintiff asserts manufactured the vacuum
that caused her injuries; and
(5) DEFENDANTS PACIFIC EQUIPMENT SUPPLY LLC and PACIFIC
EQUIPMENT LLC, which Plaintiff claims sold the vacuum
to her employer Defendant International Marine and
Industrial Applicators, LLC.
Plaintiff’s claims against her employer Defendant
International Marine and Industrial Applicators, LLC (“Defendant
IMIA”), are as follows:
(1) a Jones Act Negligence claim;
(2) a Jones Act claim for Maintenance, Cure, and Unearned
Wages; and
(3) Punitive Damages.
The causes of actions brought against Defendant IMIA are
premised on Plaintiff demonstrating that she was a “seaman”
injured in the course of her employment pursuant to the Jones
Act.
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The Court previously ruled on Defendant IMIA’s Motion to
Dismiss the claims against it on the basis that Plaintiff was not
a “seaman” within the meaning of the Jones Act.
The Court granted the Motion to Dismiss with leave to amend
for Plaintiff to assert additional facts in support of her status
as a seaman pursuant to the Jones Act.
On September 5, 2023, Plaintiff filed a Second Amended
Complaint, providing additional facts in support of her claims
that she is a seaman and asserting she is entitled to damages
pursuant to the Jones Act against Defendant IMIA.
Plaintiff was given additional leave to amend to file the
Third Amended Complaint to add new claims against the
manufacturer and seller of the vacuum that she claims caused her
injuries. The Third Amended Complaint did not alter her claims
against Defendant IMIA.
Before the Court now is Defendant IMIA’s Motion for Summary
Judgment as to all claims against it. Defendant IMIA argues that
Plaintiff was not a “seaman” for purposes of the Jones Act.
Defendant IMIA also argues that even if Plaintiff was a seaman,
IMIA is entitled to summary judgment on Plaintiff’s Jones Act
claims against it.
Defendant International Marine and Industrial Applicators,
LLC’s Motion for Summary Judgment (ECF No. 129) is DENIED.
There are genuine issues of material fact as to whether
Plaintiff was a “seaman” within the meaning of the Jones Act for
purposes of her claims against Defendant International Marine and
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Industrial Applicators, LLC. There are also genuine issues of
material fact as to Plaintiff’s Jones Act Negligence, Maintenance
and Cure, and Punitive Damages claims against Defendant IMIA.
PROCEDURAL HISTORY
On May 6, 2022, Plaintiff filed a Complaint in the Circuit
Court of the First Circuit, State of Hawaii. (ECF No. 1-3).
On June 17, 2022, Defendants removed the Complaint to the
United States District Court for the District of Hawaii. (ECF
No. 1).
On February 24, 2023, Plaintiff filed the First Amended
Complaint. (ECF No. 36).
On May 22, 2023, Defendants International Martine and
Industrial Applicators, LLC; IMIA, LLC; IMIA Holdings, Inc.; and
Doug Eiss filed a Motion to Dismiss. (ECF No. 67).
On July 18, 2023, the Court held a hearing on the Motion to
Dismiss. (ECF No. 76).
On July 19, 2023, the Court issued the ORDER GRANTING
DEFENDANTS INTERNATIONAL MARINE AND INDUSTRIAL APPLICATORS, LLC;
IMIA, LLC; IMIA HOLDINGS, INC.; AND DOUG EISS’S MOTION TO DISMISS
PLAINTIFF’S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM
WITH LEAVE TO AMEND. (ECF No. 77).
On September 5, 2023, Plaintiff filed the SECOND AMENDED
COMPLAINT. (ECF No. 88).
On March 1, 2024, Defendant International Marine and
Industrial Applicators, LLC filed a Motion for Summary Judgment
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and Concise Statement of Facts in support. (ECF Nos. 129 and
130).
On March 5, 2024, the Court issued the briefing schedule.
(ECF No. 131).
On March 7, 2024, Plaintiff filed an Unopposed Motion to
Extend Briefing Schedule. (ECF No. 132).
On March 12, 2024, the Court issued a Minute Order granting
the Motion to Extend Briefing Schedule, in part. (ECF No. 134).
The Court continued the hearing to April 23, 2024. (Id.)
On March 14, 2024, the Magistrate Judge granted Plaintiff’s
request to file a Third Amended Complaint. (ECF Nos. 135, 146).
On March 25, 2024, Plaintiff filed her Opposition and
Concise Statements of Facts in Opposition to Defendant
International Marine and Industrial Applicators, LLC’s Motion for
Summary Judgment. (ECF Nos. 137, 138, 139).
On March 26, 2024, the Brandsafway Defendants filed a
Statement of No Position to the Motion for Summary Judgment.
(ECF No. 140).
On April 1, 2024, Defendant International Marine and
Industrial Applicators, LLC filed its Reply and Objections to
Plaintiff’s Opposition. (ECF Nos. 142, 143, 144).
On April 10, 2024, Plaintiff filed the THIRD AMENDED
COMPLAINT. (ECF No. 150).
On April 23, 2024, the Court held a hearing on Defendant
International Marine and Industrial Applicators, LLC’s Motion for
Summary Judgment. (ECF No. 166).
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BACKGROUND
The Parties disagree as to the majority of the material facts in
this case.
Plaintiff and Defendant IMIA do agree to the following facts:
In 2021, Plaintiff Ashley Cooper was employed by Defendant
IMIA and worked full-time as an industrial painter. (Declaration
of Plaintiff Ashley Cooper at ¶ 2, attached to Pl.’s Concise
Statement of Facts (“CSF”), ECF No. 137-1).
On August 21, 2021, Plaintiff was at work on board the USS
William P. Lawrence (the “Vessel”), which was located at Joint
Base Pearl Harbor-Hickam. (Id.) On the same date, Plaintiff was
injured while on the Vessel. (Injury Report, attached as Ex. B
to Def.’s CSF, ECF No. 130-3).
Plaintiff was hospitalized following her injury on August
21, 2021. She returned to work for Defendant IMIA from September
6, 2021 until October 4, 2021, performing light duty tasks at the
job site. (Deposition of Def. IMIA General Manager Douglas Eiss
(“Eiss Depo.”) at p. 12, attached as Ex. A to Def.’s CSF, ECF No.
130-2; Deposition of Plaintiff Ashley Cooper (“Cooper Depo.”) at
pp. 101-02, attached as Ex. A to Pl.’s Sur-Reply, ECF No. 153-2).
Plaintiff returned to disability status on October 28, 2021.
(Cooper Depo. at p. 103, attached as Ex. A to Pl.’s Sur-Reply,
ECF No. 153-2).
Defendant IMIA furnished Plaintiff with some disability pay
benefits since her August 21, 2021 injury. (Id. at p. 15).
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Plaintiff and Defendant IMIA disagree as to other material facts
including, but not limited to, the following:
(1) the nature and circumstances of Plaintiff’s employment
with Defendant IMIA and other entities;
(2) the scope of Plaintiff’s job duties with Defendant
IMIA;
(3) the instruction and the supervision of Plaintiff by
Defendant IMIA and other entities, including the United
States Navy;
(4) Plaintiff’s employment history with IMIA and other
entities, including her time working aboard other
vessels;
(5) the instruction and supervision of Plaintiff by other
IMIA employees;
(6) the use of equipment aboard the Vessel;
(7) the nature and circumstances of how Plaintiff sustained
her injuries on August 21, 2021;
(8) the extent of Plaintiff’s injuries;
(9) the actions by Defendant IMIA following the injury on
August 21, 2021, including the investigation into the
accident and the reporting of the accident;
(10) the use of industrial vacuums by IMIA employees and
whether there had been other incidents involving
industrial vacuums operated by Defendant IMIA
employees;
(11) the relationship between Defendant IMIA and Plaintiff’s
prior employer Craft and Technical Solutions (“CTS”),
including the supervision of Plaintiff by Defendant
IMIA while she was employed with CTS; and
(12) the relationship and business interests of Defendant
IMIA’s General Manager Douglas Eiss and other
Defendants in the case including Defendants Pacific
Equipment Supply LLC and Pacific Equipment LLC.
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STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). To defeat
summary judgment “there must be sufficient ‘evidence that a
reasonable jury could return a verdict for the nonmoving party.’”
Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.
1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
The moving party has the initial burden of “identifying for
the court the portions of the materials on file that it believes
demonstrate the absence of any genuine issue of material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). The moving party, however, has no burden
to negate or disprove matters on which the opponent will have the
burden of proof at trial. The moving party need not produce any
evidence at all on matters for which it does not have the burden
of proof. Celotex, 477 U.S. at 325. The moving party must show,
however, that there is no genuine issue of material fact and that
he or she is entitled to judgment as a matter of law. That
burden is met by pointing out to the district court that there is
an absence of evidence to support the nonmoving party’s case.
Id.
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If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the absence
of probative evidence tending to support its legal theory.
Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 282
(9th Cir. 1979). The opposing party must present admissible
evidence showing that there is a genuine issue for trial. Fed.
R. Civ. P. 56(c); Brinson v. Linda Rose Joint Venture, 53 F.3d
1044, 1049 (9th Cir. 1995). “If the evidence is merely
colorable, or is not significantly probative, summary judgment
may be granted.” Nidds, 113 F.3d at 916 (quoting Anderson, 477
U.S. at 249-50).
The court views the facts in the light most favorable to the
non-moving party. State Farm Fire & Cas. Co. v. Martin, 872 F.2d
319, 320 (9th Cir. 1989). Opposition evidence may consist of
declarations, admissions, evidence obtained through discovery,
and matters judicially noticed. Fed. R. Civ. P. 56(c); Celotex,
477 U.S. at 324. The opposing party cannot, however, stand on
its pleadings or simply assert that it will be able to discredit
the movant’s evidence at trial. Fed. R. Civ. P. 56(e); T.W.
Elec. Serv., 809 F.2d at 630. The opposing party cannot rest on
mere allegations or denials. Fed. R. Civ. P. 56(e); Gasaway v.
Nw. Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994).
“When the nonmoving party relies only on its own affidavits to
oppose summary judgment, it cannot rely on conclusory allegations
unsupported by factual data to create an issue of material fact.”
Hansen v. U.S., 7 F.3d 137, 138 (9th Cir. 1993); see also Nat’l
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Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir.
1997).
ANALYSIS
I. Evidentiary Issues
A. Defendant IMIA’s Allegations That Plaintiff’s
Declaration Is A Sham
In very limited instances, the district court may find that
a party’s declaration or affidavit is a “sham” and disregard it
for purposes of analyzing a motion for summary judgment. Kennedy
v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). The
sham affidavit rule precludes a party from creating a dispute of
fact by drafting a affidavit that clearly and undisputably
contradicts the party’s prior deposition testimony. Id.
To find an affidavit is a sham, the district court must
first make a factual determination that there is an inconsistency
between the party’s prior deposition testimony and subsequent
affidavit that is both clear and unambiguous. Yeager v. Bowlin,
693 F.3d 1076, 1080 (9th Cir. 2012); Van Asdale v. Int’l Game
Tech., 577 F.3d 989, 998-99 (9th Cir. 2009). If the district
court finds a clear and unambiguous inconsistency, the district
court may then strike that portion of the affidavit and disregard
it for purposes of ruling on the motion for summary judgment.
Id.
The sham affidavit rule does not apply to situations where
the purported inconsistencies are minor, explainable, or are
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simply the result of cross-examination concerning the credibility
of the witness. See Cabasug v. Crane Co., 989 F.Supp.2d 1027,
1054-55 (D. Haw. 2013), abrogated on other grounds in Air &
Liquid Sys. Corp. v. DeVries, 586 U.S. 446 (2019).
Defendant IMIA argues that Plaintiff’s Declaration (ECF No.
137-1) filed in Opposition to Defendant’s Motion for Summary
Judgment is a “sham.” Defendant IMIA, however, has not pointed
to a single instance of a clear and unambiguous contradiction
between Plaintiff’s deposition testimony and her Declaration.
Defendant IMIA’s Reply Concise Statement of Facts attempts
to have the Court weigh evidence and determine the credibility of
Plaintiff’s Declaration when compared to other evidence in the
record. Such a request is inappropriate and not permitted in
ruling on a Motion for Summary Judgment.
When evaluating a motion for summary judgment, the Court
must view the facts and draw reasonable inferences in the light
most favorable to the party opposing summary judgment. Scott v.
Harris, 550 U.S. 372, 380 (2007). It is inappropriate for the
Court to weigh disputed evidence or engage in credibility
determinations in ruling on summary judgment. In re Barboza, 545
F.3d 702, 707 (9th Cir. 2008).
The sham affidavit doctrine is not applicable here. There
are no clear and unambiguous contradictions between Plaintiff’s
prior deposition and the Declaration she submitted in opposition
to the summary judgment motion. In response to Defendant IMIA’s
Objection, Plaintiff filed a Sur-Reply. Plaintiff has provided
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the context and basis for her answers in her Declaration and her
prior deposition testimony. The sham affidavit rule does not
preclude a party from elaborating on or clarifying prior
testimony. Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir.
2009).
The Ninth Circuit Court of Appeals has held that the sham
affidavit rule should be applied with caution because it is in
tension with the principle that the court must not make
credibility determinations when ruling on summary judgment.
Yeager, 693 F.3d at 1080. Any inconsistency in Plaintiff’s
deposition testimony and her Declaration are issues of
credibility for trial. They do not provide a basis to ignore her
Declaration for purposes of summary judgment. See Matsumura v.
Bank of Am., N.A., Civ. No. 11-00608 JMS-BMK, 2013 WL 12140994,
*4 (D. Haw. May 20, 2013).
Defendant IMIA’s argument that Plaintiff’s Declaration is a
sham is without merit.
B. Defendant IMIA’s Other Evidentiary Objections
At the summary judgment stage, a party does not have to
produce evidence in a form that would be admissible at trial as
long as the party satisfies the requirements of Federal Rule of
Civil Procedure 56. Block v. City of Los Angeles, 253 F.3d 410,
419 (9th Cir. 2001).
Defendant IMIA asserts a panoply of evidentiary objections
to Plaintiff’s Concise Statement of Facts submitted in Opposition
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to Defendant’s Motion for Summary Judgment. The objections are
overly broad and wide ranging and include vague references to
relevance, hearsay, foundation, lack of personal knowledge, and
the best evidence rule.
The objections focus on Plaintiff’s Declaration and the
Declaration of a former IMIA employee Adam Kahoekapu. Defendant
IMIA’s objections that are based on foundation, relevance, and
best evidence are misplaced at the summary judgment stage.
Plaintiff and Mr. Kahoekapu may testify at trial and provide the
basis for their testimony. Any foundation or relevance concerns
may be raised at trial.
Defendant’s objections based on hearsay and personal
knowledge are unfounded. Personal knowledge can be inferred from
the declarations themselves, including their employment history
with Defendant IMIA. See Armstrong v. Hawaiian Airlines, Inc.,
416 F.Supp.3d 1030, 1039 (D. Haw. 2019). Hearsay can be
considered at the summary judgment stage when the information may
be presented in an admissible form at trial either through the
speaker or through an exception to hearsay. See Garris v. Fed.
Bureau of Investigation, 937 F.3d 1284, 1293 (9th Cir. 2019);
Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003).
Defendant IMIA’s objections to Plaintiff’s Concise Statement
of Facts are without merit.
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II. There Are Genuine Disputes Of Material Facts As To Whether
Plaintiff Was A “Seaman” Pursuant To The Jones Act
The Jones Act permits a “seaman injured in the course of
employment” to recover damages against her employer. 46 U.S.C. §
30104.
Plaintiff must establish two threshold requirements in order
to bring a negligence claim against her employer pursuant to the
Jones Act:
(1) she must establish that she was employed by the
defendant at the time of the injury; and
(2) she must establish that she meets the requirements for
being a “seaman” within the meaning of the Jones Act.
Holm v. Meyers, 609 F.Supp.3d 1173, 1178 (W.D. Wash. 2022)
(citing Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S.
811, 817 (2001)).
The Parties do not dispute that Plaintiff was employed by
Defendant IMIA at the time of the injury on August 21, 2021.
The question at issue is whether Plaintiff was a “seaman”
within the meaning of the Jones Act.
In Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995), the
United States Supreme Court set forth a two-prong test to
determine whether a plaintiff is a “seaman” who is entitled to
coverage pursuant to the Jones Act.
First, the employee’s duties must “contribute to the
function of the vessel or to the accomplishment of its mission.”
Id. at 376.
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Second, the employee “must have a connection to a vessel in
navigation (or to an identifiable group of such vessels) that is
substantial in terms of both its duration and its nature.” Id.
at 368. The United States Supreme Court explained that the
purpose of the second requirement is to “separate the sea-based
maritime employees who are entitled to Jones Act protection from
those land-based workers who only have a transitory or sporadic
connection to a vessel in navigation.” Id.
The inquiry into a plaintiff’s seaman status is a mixed
question of law and fact. Delange v. Dutra Constr. Co., 183 F.3d
916, 919 (9th Cir. 1999) (per curiam). Where there are factual
disputes as to seaman status, the question must be submitted to
the jury. Id. A plaintiff’s seaman status must be determined
in the context of her overall employment with the defendant
employer. Chandris, 515 U.S. at 366-67.
The Ninth Circuit Court of Appeals has a Model Jury
Instruction to give to the jury when they are determining whether
a plaintiff is a seaman for purposes of the Jones Act. The Model
Jury Instruction on Seaman Status is as follows:
The plaintiff seeks recovery against the defendant
under the Jones Act for negligence. She also seeks
recovery under maintenance and cure. Only a “seaman”
can bring these claims. The parties dispute whether or
not plaintiff was employed as a seaman.
The plaintiff must prove that she was a “seaman” in
order to recover. To prove seaman status, the
plaintiff must prove the following elements by a
preponderance of the evidence:
1. the plaintiff contributed to the mission or
operation of a vessel or an identifiable
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group of vessels in navigation, whether
underway or at anchor; and
2. the plaintiff had an employment-related
connection to the vessel or an identifiable
group of vessels that was substantial in
terms of both duration and nature.
The phrase “vessel in navigation” is not limited to
traditional ships or boats but includes every type of
watercraft or artificial contrivance used, or
practically capable of being used, as a means of
transportation on water.
The phrase “substantial in duration” means that the
plaintiff’s connection to the vessel or an identifiable
group of vessels must be more than merely sporadic,
temporary, or incidental.
The phrase “substantial in nature” means that it must
regularly expose her to the special hazards and
disadvantages that are characteristic of a seaman’s
work.
(9th Cir. Model Civil Jury Instruction 7.1).
There are genuine issues of material fact here that preclude
a ruling on summary judgment as to Plaintiff’s seaman status
within the meaning of the Jones Act. The Parties dispute facts
as to both prongs of the test of whether Plaintiff was a seaman
for purposes of the Jones Act.
As previously explained, the Court must view the facts and
draw reasonable inferences in the light most favorable to the
party opposing summary judgment. Scott, 550 U.S. at 380. The
Court cannot weigh disputed evidence or engage in credibility
determinations in ruling on summary judgment. In re Barboza, 545
F.3d at 707.
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A. There Are Material Disputes Of Fact As To Whether
Plaintiff’s Work Contributed To The Mission Or
Operation Of A Vessel Or Group Of Vessels In Navigation
First, the Parties dispute whether Plaintiff contributed to
the mission or operation of the U.S.S. William P. Lawrence and/or
other vessels.
1. Questions Of Fact About Whether Plaintiff’s Work
Contributed To A Vessel Or Group Of Vessels
Plaintiff explained in her Declaration that she worked for
Defendant IMIA performing various tasks including painting “work
to help preserve the U.S. vessels [she] worked aboard and to
prevent corrosion of the vessels. [Her] work aboard U.S. vessels
included work that was supervised at times by Navy personnel,
including work to ensure proper attachment of tank level
indicators (“TLIs”) and work to spray diesel in fuel tanks.”
(Plaintiff’s Decl. at ¶ 5, attached to Pl.’s CSF in Opp., ECF No.
137-1).
Plaintiff stated that her work contributed to the operation
of the vessels because without it the vessels would corrode and
deteriorate in salt water. (Id. at ¶ 19).
Defendant IMIA disputes that Plaintiff’s work contributed to
the operation of a vessel or group of vessels. Defendant IMIA’s
General Manager Douglas Eiss stated in his deposition that
Plaintiff’s work was only preservation and repair work and was
not necessary for the vessels’ operation. (Deposition of
Douglass Eiss at pp. 17-18, attached to Def.’s CSF, ECF No. 130-
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2). Mr. Eiss does not specifically address whether Plaintiff’s
work “contributed” to the operation of the vessel or a group of
vessels. Mr. Eiss, however, stated that the vessels would
degrade over time if the type of work Plaintiff completed was not
done. (Deposition of Douglass Eiss at pp. 19-20, attached to
Pl.’s CSF in Opp., ECF No. 137-4).
2. Questions Of Fact About Whether Plaintiff Worked
On A Vessel Or Group Of Vessels In Navigation
The Parties dispute the extent to which Plaintiff was on
board any vessel while in actual navigation and the extent to
which Plaintiff worked on any vessels in navigable water.
(Compare Plaintiff’s Decl. at ¶¶ 2-9, 25-27, ECF No. 137-1; Eiss
Depo. at 15-20, 22-24, ECF No. 130-2).
The United States Supreme Court ruled that “the underlying
inquiry whether a vessel is or is not ‘in navigation’ for Jones
Act purposes is a fact-intensive question that is normally for
the jury and not the court to decide.” Chandris, 515 U.S. at
373. A vessel does not cease to be a vessel in navigation when
the vessel is not voyaging, but is at anchor, berthed, or at
dockside, even when the vessel is undergoing repairs in drydock.
Id. at 373-74. A vessel may be in navigation even when it
returns from a voyage and is taken to a drydock or shipyard to
undergo repairs, or when it is moored to a dock. Id. The
question turns upon facts regarding the status of the ship, if
the vessel is intended to return to sea, the pattern of repairs
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to the vessel, the extensive nature of the work, and whether the
vessel has been withdrawn from navigation. Id. (citing West v.
United States, 361 U.S. 118, 122 (1959)). These are questions
for the jury to decide. Chandris, 515 U.S. at 373.
The contradictions here make it a question of fact for the
jury to decide whether Plaintiff’s work contributed to the
mission or operation of a vessel or an identifiable group of
vessels in navigation. See Stewart v. Dutra Const. Co., 543 U.S.
481, 496 (2005) (citing Chandris, 515 U.S. at 373).
B. There Are Material Disputes Of Fact As To Whether
Plaintiff’s Work Was Substantial In Duration Or In
Nature
Second, there are also genuine issues of material fact about
whether Plaintiff’s work was substantial in terms of both
duration and nature. The Parties dispute the scope of
Plaintiff’s work and job duties. (Compare Plaintiff’s Decl. at
¶¶ 2-9, 25-27, ECF No. 137-1; Eiss Depo. at 15-20, 22-25, ECF No.
130-2).
Plaintiff states that she worked for IMIA from October 2019
through August 21, 2021 and that the vast majority of her work
was aboard United States Navy vessels. (Plaintiff’s Declaration
at ¶ 4, attached to Pl.’s CSF in Opp., ECF No. 137-1). Plaintiff
states that some of her shifts aboard U.S. Navy vessels exceeded
12 hours and at least one exceeded 22 hours. (Id. at ¶ 6).
Plaintiff asserts that her work was substantial in nature
because she was exposed to special hazards and dangers.
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Plaintiff explained that given her small size she was assigned
many jobs in tight spaces, including within tanks where others
could not fit. (Id. at ¶ 26).
Plaintiff’s former co-worker Adam Kahoekapu stated in his
Declaration that Plaintiff’s work was “greatly respected,” that
Plaintiff was “efficient, hard-working, and skilled.”
(Declaration of Adam Kahoekapu at ¶ 12, attached to Pl.’s CSF in
Opp., ECF No. 137-2). Mr. Kahoekapu stated that Plaintiff “was
substantially smaller in size than the average IMIA sandblaster,
and therefore, she was often put in tight spots aboard vessels to
perform various jobs.” (Id.)
Defendant IMIA disputes that Plaintiff’s work was
substantial in duration or in nature. Defendant argues that
Plaintiff’s work was simply repair work. Contrary to Defendant’s
position, the United States Supreme Court has ruled that a
worker’s status as a ship repairman did not prevent him from
being in seaman status for purposes of the Jones Act. Sw.
Marine, Inc. v. Gizoni, 502 U.S. 81, 89 (1991). It is the total
circumstances of an individual’s employment that must be weighed
to determine the duration and nature of a worker’s employment.
Chandris, 515 U.S. at 370. The seaman status inquiry is not
limited to a particular day, assignment, or job title, but
requires an examination of the overall course of a worker’s
service. Id. at 371-72.
It is a question of fact for the jury to decide whether
Plaintiff’s work was substantial in terms of both duration and
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nature. See Delange, 183 F.3d at 919 (overruling the district
court’s grant of summary judgment where fact issues as to
plaintiff’s role created questions as to whether he was a seaman
and distinguishing Heise v. Fishing Co. of Alaska, Inc., 79 F.3d
903, 906 (9th Cir. 1996)); see also Becker v. Dillingham Const.
Pac., Ltd., Civ. No. 00-200 HG, 2001 WL 969085, *6-7 (D. Haw.
Mar. 21, 2001) (denying summary judgment due to genuine issues of
material fact as to whether plaintiff’s work was substantial and
contributed to a vessel in navigation).
III. There Are Genuine Disputes Of Material Facts As To
Plaintiff’s Jones Act Claims Against Defendant IMIA
Defendant IMIA additionally seeks summary judgment, arguing
that even if Plaintiff was a seaman, the Court should find that
Defendant IMIA was not negligent, that it has paid Plaintiff any
damages she may be owed, and that it cannot be liable for
punitive damages.
A. Jones Act Negligence
The Jones Act permits a seaman injured in the course of
employment to recover damages against their employer. 46 U.S.C.
§ 30104. To establish a cause of action for negligence pursuant
to the Jones Act, a plaintiff must establish duty, breach,
notice, and causation. Ribitzki v. Canmar Reading & Bates, Ltd.
P’ship, 111 F.3d 658, 664 (9th Cir. 1997).
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The employer of a seaman has a duty under the Jones Act to
use reasonable care to ensure that the seaman has a safe place to
work. Id. at 662-63. Plaintiff must establish that the employer
or one of its agents was negligent and that the negligence was a
cause of her injuries “however slight.” Id. at 662. The quantum
of evidence necessary to sustain a finding of Jones Act
negligence is less than that required for common law negligence
and even the slightest negligence is sufficient to sustain a
finding of liability. Havens v. F/T Polar Mist, 996 F.2d 215,
218 (9th Cir. 1993). An employer is only liable under the Jones
Act, however, if the employer or its agent either knew or should
have known of the dangerous condition causing the injury. Id.
B. Maintenance And Cure
Under general maritime law, a seaman who becomes injured
while in the service of a ship is entitled to maintenance and
cure by her employer. Gardiner v. Sea-Land Serv., Inc., 786 F.2d
943, 945-46 (9th Cir. 1986). This right includes (1) maintenance
which is a living allowance for food and lodging to the ill
seaman; (2) cure which is reimbursement for medical expenses; and
(3) unearned wages from the onset of injury until the end of the
voyage. Id. at 946. The entitlement to maintenance and cure
continues until the seaman reaches maximum cure, which is
recovery as complete as the injury allows. Permanente S.S. Corp.
v. Martinez, 369 F.2d 297, 298-99 (9th Cir. 1966).
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C. Punitive Damages
To recover punitive damages for failure to pay maintenance
and cure, a plaintiff must establish that the employer failed to
provide maintenance and cure until plaintiff reached maximum
medical recovery as a result of callous disregard, gross
negligence, or actual malice. Vaughan v. Atkinson, 369 U.S. 527,
531 (1962).
D. The Numerous Genuine Disputes Of Material Fact Preclude
Summary Judgment In Favor Of Defendant On Any Of
Plaintiff’s Jones Act Claims
As explained earlier, the Parties dispute nearly all
material facts about the accident on August 21, 2021, including:
(1) the instruction and the supervision of Plaintiff;
(2) the use of equipment aboard the Vessel;
(3) the nature and circumstances of how Plaintiff sustained
her injuries on August 21, 2021;
(4) the extent of Plaintiff’s injuries;
(5) the actions by Defendant IMIA following the incident on
August 21, 2021;
(6) notice to Defendant IMIA about the use of industrial
vacuums by IMIA employees and whether there had been
other incidents involving industrial vacuums operated
by Defendant IMIA;
(7) the relationship between Defendant IMIA and Plaintiff’s
prior employer Craft and Technical Solutions (“CTS”),
including the supervision of Plaintiff by Defendant
IMIA while she was employed with CTS;
(8) the relationship and business interests of Defendant
IMIA’s General Manager Douglas Eiss and other
Defendants in the case including Defendants Pacific
Equipment Supply LLC and Pacific Equipment LLC.
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The questions of material fact regarding Defendant’s alleged
breach of its duty to provide a safe working environment are
questions for the jury. Martinez v. Korea Shipping Corp., 903
F.2d 606, 609 (9th Cir. 1990) (citing Lies v. Farrell Lines,
Inc., 641 F.2d 765, 770 (9th Cir. 1981) (“Courts should exercise
special care in considering summary judgment in Jones Act cases
which require a very low threshold for submission to the jury”);
see Wynn v. Harley Marine Srvs., Inc., 2020 WL 7319433, *1 (N.D.
Cal. Dec. 11, 2020) (explaining that the disputes of fact
precluded summary judgment which was “all the more true here
because summary judgment is disfavored in Jones Act cases”).
The genuine disputes of material fact regarding maintenance
and cure and punitive damages are also questions for the jury.
See Lui v. Fishing Co. of Alaska, Inc., 2015 WL 12559895, *5
(W.D. Wash. Apr. 6, 2015) (denying summary judgment where there
were disputes of fact as to maintenance and cure and punitive
damages under the Jones Act).
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CONCLUSION
Defendant International Marine and Industrial Applicators,
LLC’s Motion for Summary Judgment (ECF No. 129) is DENIED.
IT IS SO ORDERED.
DATED: April 26, 2024, Honolulu, Hawaii.
Ashley Cooper v. Vigor Marine, LLC; Vigor Industrial, LLC;
Brandsafway Industries, LLC; Brandsafway Services, LLC;
Brandsafway Solutions, LLC; International Marine and Industrial
Applicators, LLC; Industrial Applicators, LLC; Industrial Vacuum
Equipment Corporation; Undustrial Vacuum Sales LLC; Industrial
Vacuum Inc.; Pacific Equipment Supply LLC; Pacific Equipment
Supply LLC, Civ. No. 22-00275 HG-RT; ORDER DENYING DEFENDANT
INTERNATIONAL MARINE AND INDUSTRIAL APPLICATORS, LLC’S MOTION FOR
SUMMARY JUDGMENT (ECF No. 129)
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