General Practice – Civil Litigation
Acadia Parish, Vermilion Parish & Lafayette General Practice Law
Experienced Lafayette personal injury and civil litigation lawyer
General practice attorney James Kirk Piccione offers clients in Lafayette, Acadia Paris, Vermilion Parish and the surrounding communities legal counsel to earn them fair compensation in the event of a personal injury. A personal injury occurs when a person suffers physical, emotional, or financial harm because of the neglect or wrongdoing of another party.
Personal injury consequences may include—
Each year, motor vehicle accidents cause thousands of injuries and hundreds of fatalities in Louisiana. These accidents can involve—
Acadia Parish, Vermilion Parish and Lafayette general practice attorney, James Kirk Piccione, has helped hundreds of vehicular accident victims recover damages. He is experienced in working with the unique laws in Louisiana pertaining to automobile accidents and other drivers’ negligence on the road. If you have suffered injuries in Acadia Parish, Vermilion Parish, Lafayette or any place in Louisiana, it is important for you to retain an experienced automobile accident trial attorney to assist you in the recovery process.
As a Lafayette personal injury attorney, James Kirk Piccione also represents clients that have sustained injuries from defective products. To learn more on identifying defective products and whether you are entitled to compensation, please read – product liability.
When a worker is injured offshore—and the injury is caused by the negligence of someone other than his employer or a co-employee—the injured worker can file suit against that person or entity. First, however, it is important to bring your case to an attorney familiar with maritime injury cases. The many laws governing offshore injuries and illnesses include—
Congress has passed many acts over the years which govern specific areas of maritime law, such as the Longshore Harbor Worker’s Compensation Act, the Jones Act, and the Outer Continental Shelf Lands Act. Those areas not governed by a specific act of Congress are governed by General Maritime Law.
Personal injury claims under General Maritime Law usually involves three types of claims:
- Claims brought by injured persons against defendants who are not the injured person’s employer. (Claims against employers are usually covered by the Longshore Act and the Jones Act.)
- Claims brought against a vessel in navigation for not being seaworthy, where the unseaworthy condition caused the injury
- Personal injury claims against a vessel in navigation based on negligence of the vessel under Section 905B of the Longshore Act
When a person is injured offshore, and the injury is caused by the negligence of someone other than his employer or a co-employee, the injured worker can file suit against that person or entity under General Maritime Law. In order to be covered by the general maritime law, an accident must have occurred on or near a navigable waterway and must involve a traditional maritime activity. Traditional maritime activities can involve everything from navigation of boats on blue water to pile driving for a wharf on an inland river.
Most General Maritime Law claims are based on general negligence. In order to recover, a plaintiff must not only show that a defendant caused his injury, but that the defendant was negligent in doing so. Negligence simply means that the defendant failed to use ordinary diligence under the circumstances or failed to do what a reasonable man would have done under the circumstances.
Warranty of seaworthiness
Although most general maritime law claims will be based on general negligence, there is one significant exception. That exception is the warranty of seaworthiness. The owner or operator of a vessel in navigation owes a duty to the crew of the vessel and to other persons on the vessel. The duty is to provide a vessel on which it is generally safe to live and work. The vessel operator has a duty to provide a vessel which is reasonably fit for its intended use. If a seaman is injured because a vessel is not reasonably safe or fit, the seaman does not need to prove that the vessel operator was negligent. The vessel operator has an absolute duty to provide a safe vessel. Unsafe conditions which render the vessel unseaworthy and cause injury result in absolute liability on the part of the vessel operator. These unsafe conditions can include conditions created by the negligent acts of third parties. Also, a seaman does not have to prove that the vessel operator knew of the unsafe condition. The vessel operator has control over the vessel, and is therefore absolutely responsible for its seaworthiness.
Vessel in navigation
The unseaworthiness claim only applies to “vessels in navigation”. A ship in dry dock for repairs in not considered “in navigation.” Therefore, a worker who is injured on such a ship would not have a potential claim for unseaworthiness. There are many factors which the courts look at to determine whether a structure is a vessel, and whether it is in navigation. It is important to hire a competent legal counsel when a determination of this type must be made.
Existence of an unseaworthy condition
In order to make an unseaworthiness claim, the injured plaintiff must prove that the vessel was unseaworthy. A vessel operator does not have an obligation to provide a vessel which is absolutely safe in all circumstances. There are some conditions which are natural and cannot be prevented. Oftentimes, a vessel’s deck will be awash in seawater. And there is no way a vessel operator can be expected to provide a dry deck which is not slippery.
However, a vessel operator is expected to provide a crew which is properly trained for its duties, a crew with sufficient numbers to carry out those duties, and equipment which is appropriate and safe for use in the jobs being performed. Failure in any one of these areas which causes injury can be considered an unseaworthy condition.
Vessel negligence under the Longshore Act
Most longshoremen who are injured on the job must rely on the workers compensation scheme provided by the Longshoreman Harbor Workers Compensation Act. However, there is an exception if they are injured as a result of the negligence of the vessel on which they are working under Section 905B of the Longshore Act.
905B claim is based on the negligence of the vessel, not the negligence of the worker’s employer.
A longshoreman who is injured while working on a ship cannot sue his employer for his employer’s negligence. However, if his employer is also the operator of the vessel, and is guilty of negligence in his capacity as operator of the vessel, then he can be sued by the employee in a regular tort action. This is called the Dual Capacity Doctrine. Although the employee’s exclusive remedy against his employer would normally be the workers comp type benefits under the Longshore Act, he can sue his employer in his capacity as vessel operator if he is guilty of vessel negligence which caused the injury.
Under the Longshore Act, the term vessel includes the ship upon which the worker is working, and that ship’s owner, operator, charterer, officer or crewmember. Negligence by any one of these persons which causes injury to the plaintiff can be considered “vessel negligence” under Section 905B of the Longshore Act.
Thus under 905B, an employer can be liable under the Dual Capacity Doctrine for both tort damages and workers compensation. For instance, if a stevedore is conducting loading and unloading operations on a vessel when its employee is injured, the employee’s usual remedy is workers compensation under the Longshore Act. Usually, this would be his only remedy. But if the ship owner has turned over control of the vessel to the stevedore for the unloading operations, the stevedore then becomes the operator of the vessel, and can be sued in tort for vessel negligence which causes injury under Section 905B.
Negligence under Section 905B includes failing to provide a longshoreman with a safe place to work or failing to provide an adequate and safe crew to do the job.
Claims under the general maritime law can be very complicated. The numerous relationships between different entities conducting operations on navigable waters make for endless possible fact scenarios. The law which applies depends upon the facts of each individual case.
Title 33 of the United States Code, Sections 901–950 provides a federal workers compensation law, which is similar to state workers compensation law, but which applies to maritime and coastal workers. As with the state workers compensation law, an employee injured on the job is entitled to recover regardless of who is at fault, or even if no one is at fault. However, the employee can only recover weekly compensation and medical bills. And although the employer must pay weekly compensation and medical bills, the employer is immune from suit for pain and suffering, disability, and loss of enjoyment of life.
Exception to immunity
Unlike state workers compensation law, the Longshoreman Harbor Workers Compensation Act has two exceptions to this grant of immunity. An employer must obtain private workers compensation insurance, or qualify as self-insurer under a specific set of rules. When an employer fails to do so, and injured employee can sue the employer in a regular tort suit for all damages, including lost wages, medical bills, pain and suffering, disability, and loss of enjoyment of life.
Section 905B claims
The second exception to the immunity granted the employer is known as the dual capacity doctrine established in Section 905 of the Longshoreman Harbor Workers Compensation Act. If the longshoreman’s employer is also the vessel operator, and the longshoreman was injured because of “vessel negligence”, instead of “employer negligence”, then the longshoreman can sue the vessel operator in regular tort liability. This exception has been limited by certain amendments made to the Longshoreman Harbor Workers Compensation Act. In 1984, amendments were passed which take away the right to sue the employer, even if the injury is caused by vessel negligence, if the injured employee’s duties include shipbuilding, repairing, or breaking services.
Oftentimes a longshoreman is employed by a labor service and then sent to work for a business which controls the day-to-day work of the employee. In that case, the business is considering a borrowing employer. And the employee is considered a borrowed servant. Both the original employer and borrowing employer are protected from tort suit by the longshore act. Even if an employee is injured due to the negligence of another borrowed employee who has a different lending employer, all employers are still protected from suit in tort by the longshoreman act.
Under the Outer continental Shelf Lands Act, workers who are injured or killed while working on any type of structure on the outer continental shelf are eligible for benefits under the longshore act. This is true even if they do not meet the definition of a longshoreman. But they must be on the outer continental shelf. If they are in state territorial waters, they do not qualify. Workers injured on a fixed platform in state territorial waters where fault is not an issue are limited to state workers compensation benefits.
Statute of Limitations
Under the longshore act, an employee has one year from the date of the injury to file his claim. If the employer or longshore insurer is paying compensation or medical benefits, then the employee has one year to file a claim from the last date that benefits were paid.
Types of disability
There are four types of disability. When the doctor says the employee is temporarily totally disabled, he is entitled to two-thirds of his average weekly wages until he recovers. When the doctor says the employee is temporarily partially disabled, he is entitled to two-thirds of the difference between his average weekly wages before the injury, and the amount he is able to earn after the injury. But temporary partial disability payments are limited to five years. If the doctor says a worker is permanently partially disabled, the longshore act has a schedule of benefits which provide for certain benefits to be paid an employee depending upon the nature of the disability or the part of the body which is partially disabled. Only when a doctor says an employee is permanently and totally disabled from all work is the employee entitled to two-thirds of his average weekly wages for the remainder of his life.
What is a seaman?
In order for an injured employee to sue his employer under the Jones Act, he must meet the definition of a seaman. The United States Supreme Court defines a seaman (a member of the crew of a vessel) in terms of his connection to a vessel in navigation. An employee must have employment duties that contribute to the function of a vessel or the accomplishment of its mission. It is not necessary that he aid in the navigation of the vessel, but he must be doing some work which accomplishes the vessel’s goals or mission. The employee must also have a connection to the vessel in navigation that is substantial in duration or nature. It cannot be a transient or one time connection to the vessel. An employee who spends only a small part of his time on a ship will not normally be considered a part of the crew. In terms of pure percentages, one court has said that an employee who spends less than 30 percent of his time on the vessel will not be considered a seaman under the Jones Act
What is a vessel?
To qualify as a seaman an employee must be working on a “vessel in navigation”. What qualifies as a “vessel in navigation?” In the past, the courts used a very broad definition, which included almost anything that floats, such as jack-up rigs, semi-submersible rigs, and barges.
However, that definition has been narrowed in recent years. More and more courts have excluded from the definition of “vessel in navigation: structures that are built primarily as work platforms that are anchored in position at the time of an accident and that are not primarily designed for transportation.
But in determining whether a structure qualifies as a “vessel in navigation”, the courts will not only examine the physical attributes of the vessel, but will also examine the extent to which the vessel functions in a traditional maritime activity.
Seaman and the Jones Act
In 1920, the United States Congress passed the Jones Act, 46 USC Section 688, which gives employees who are seamen the right to sue their employer for damages if they are injured because of the employer’s negligence. The Jones Act changed the law in many ways. A plaintiff’s own fault is no longer a complete bar to his recovery, but instead only reduces his recovery by his degree of fault. Also, the Jones Act made a seaman’s employer responsible under the doctrine of respondent superior for the negligent actions of a co-employee.
Most seamen are injured as a result of being exposed to unsafe work environment or due to negligence of co-employees. If an injured worker is classified as a seaman, his employer can be held liable for full tort damages, which included medical bills, past and future lost wages, pain and suffering, disability, and loss of enjoyment of life.
In order to recover under the Jones Act—
- A person must qualify as a seaman
- He must be injured while the course and scope of his employment
- The injury must be caused, at least in part, by the negligence of his employer, a co-employee, or one of the employer’s officers or agents
The employer of a seaman has a non-delegable duty to provide a safe work environment. In addition to being responsible for the negligent acts of its officers and employees, a seaman’s employer is also responsible for the negligent acts of independent contractors if they are performing a function which is vital part of the operations of the vessel.
Under the Jones Act, a seaman’s employer is not always the same as the company that writes the seaman’s paycheck. Oftentimes, temporary labor services contract out employees to shipping companies. Although the labor service actually writes the employee’s check, the labor service relinquishes control of the employee to the shipping company, which can then be considered the seaman’s employer.
Statute of Limitations
All suits for damages for personal injury under the Jones Act must be filed within three years of date of the accident.
If the case is not settled before then, and suit is not filed, an employee will lose all rights against his Jones Act employer.
If a seaman is killed as a result of the negligence of his employer, his family can bring a survival action for the seaman’s pre-death pain and suffering, and a wrongful death action for their own loss of support and other economic damages which resulted from the seaman’s death. Only the surviving spouse and children of a deceased seaman can make this claim. If there is no spouse or surviving children, then the parents of the deceased seaman are allowed to make the claim. If the parents of the deceased seaman are also not available, then the courts allow other relatives to make the survival and wrongful death claims for the seaman, but only if they can show that they were economically dependant, at least in part, upon the deceased seaman.
Allow attorney Kirk Piccione to help you navigate your civil case to attain compensation for your hardship. Kirk was born in Lafayette and attended college and law school in Louisiana, and he knows the water and the laws surrounding it.
A proven track record
Click here to view some of general practice attorney Mr. Piccione’s victories in personal injury litigation, ranging up to 2.4 million dollars.
Our general practice law firm’s commitment is to provide aggressive, competent legal representation to recover damages suffered by our clients in Acadia Parish, Vermilion Parish, Lafayette and throughout Louisiana. Vermilion Parish and Acadia Parish lawyer James Kirk Piccione has an established civil litigation practice in Southern Louisiana. For the best chance at receiving financial compensation for your personal injury, you need an experienced civil litigation attorney. Contact the law firm of James Kirk Piccione at 337-233-9030.