[B]Case Name: [/B]Sidney Weiss Jr. v Granite Construction, et al.
[B]Date Decided: [/B]October 14, 2009
[B]Court: [/B]U.S.D.C. Southern District of Mississippi
[B]Judge: [/B]Judge Guirola
[B]Citation: [/B]2009 WL 3334620 [B]Background:
[/B]Before this Court was a motion for summary judgment filed by the defendants in opposition to plaintiff’s, Sidney Weiss Jr. (“Weiss”), under the Longshore Harbor Workers’ Compensation Act (“LHWCA”) or the Jones Act.
On the morning of his injury, Weiss was working on shore and was subsequently working on a series of barges tied together in the water next to the bridge creating a platform for a crane operated by Granite personnel. Weiss was injured when he was struck by some pieces of rebar that fell out of the crane.
Granite moved for summary judgment asserting that Weiss is not a Jones Act seaman and his claims do not fall within the LHWCA and also argue that they are entitled to assert the general contractors defense in regard to Weiss’s state law tort claim.
[/B]Did this Court grant defendants’ motion for summary judgment holding that the plaintiff’s Jones Act and/or LHWCA claims were barred?
[/B]This Court found that Weiss cannot satisfy either prong of the seaman test because (1) Weiss’s work did not contribute to the function of a vessel or to the accomplishment of its mission because his work was unrelated to any vessel. Rather Weiss was on a barge working on a steel structure that had to be built in place on the bridge rather than the shore.
The second element was not met because, the Fifth Circuit has routinely held, as a matter of law, that neither a single construction barge nor several barges strapped together to form a floating construction platform constitute “vessels” under the Jones Act. *
As for the LHWCA claim, the Court examined whether the claim fell within the Court’s maritime jurisdiction.
Granite argued that the injury-causing activity was not substantially related to traditional maritime activity. This Court found that the injury-causing activity in this case was not substantially related to traditional maritime activity. In fact, Weiss’s claim did not raise issues of navigation or other more traditional maritime activities.
The activity involved construction services which are typically land-based activity.
Finally, Granite asserted the Mississippi’s “exclusivity defense” which categorizes subcontractors as statutory employees of the general contractor for purposes of compensation laws and that so long as coverage is provided by the contractor or subcontractor, the workers’ compensation is the injured workers’ sole remedy.
Accordingly, if a contractor/subcontractor relationship exists the employee of the subcontractor covered by workers’ compensation insurance is prohibited from making a common law claim for negligence or gross negligence against the contractor.
Weiss countered that the Mississippi Workers’ Compensation Act does not apply when a worker is covered under the LHWCA and the issue cannot be resolved because there has been no finding regarding Weiss’s LHWCA statues.
Accordingly, this Court dismissed Wiess’s claim against the defendants and granted defendant’s motion for summary judgment.
One issue brought up in this case was whether the Court had maritime jurisdiction over *plaintiff’s claim. Under the LHWCA it is required that the court have maritime jurisdiction. [/B]
[B]The test to determine whether a “significant relationship” to traditional maritime activity exists, according to the Fifth Circuit, employs a (4) factor test. 1. The functions and roles of the parties 2. The types of vehicles and instrumentalities involved; 3. The causation and type of injury and 4. Traditional concepts of the role of admiralty law. [/B]
[B]The Court here found that construction, although taking place in a navigable water, was typically that of land-based construction and therefore did not bear a significant relationship to traditional maritime activity. [/B]
[B]Steve Gordon [/B]