December 2012 Archives

December 24, 2012

Cruise Injury Attorney Richard Rusak Wins Case at Florida's Third District Court of Appeal

Cruise Injury Law Appeal.gifBrais law's cruise injury attorney Richard Rusak recently won a case before Florida's Third District Court of Appeal. The case involved a Honduran crewmember who worked as a cabin steward aboard a Carnival Cruise Line ship. Being a cabin steward, the crewmember was required to clean dozens of cabins, including lifting heavy mattress to change linens, for the next cruise. Though it was Carnival's policy to have teams of two crewmembers working together to "turn over" these cabins, Carnival failed to provide an assistant. Given the short period of time he had to complete his job, the heavy lifting involved and because Carnival did not provide with an assistant, the cabin steward injured his back.

A lawsuit was filed in Florida state court located in Miami alleging violations of the Federal Jones Act statute, breach of the general maritime law warranty of seaworthiness and failure to provide injury benefits. Carnival removed the case to Federal court under the United Nations Convention for the Enforcement of Foreign Arbitration Awards arguing the seaman's claims were governed by the arbitration provision contained in his contract and that the claims must be arbitrated in Panama under Panamanian law. The Federal court entered an order finding public policy nullifies the arbitration / Panamanian law provisions of the contract with regard to the Federal Jones Act claim and remanded the Jones Act claim to state court for a jury trial. The Federal court based its finding on the Federal Eleventh Circuit's opinion of Thomas v. Carnival which held public policy can be considered when deciding to enforce an arbitration agreement.

Instead of challenging the Federal court's remand order to the appellate court, Carnival decided to participate in the state court litigation without regard to its claimed right to arbitrate. While in state court, Carnival acted contrary to the arbitration provision by engaging in the machinery of the litigation process without even asking the State Court to review whether the statutory claim should be arbitrated. After a year and a half of litigating in State Court, Carnival sought a Federal court to re-review whether the Federal Jones Act must be arbitrated per the contract. This time, Carnival relied on a later opinion from the Eleventh Circuit called Lindo v. NCL (Bahamas) Ltd. which disagreed with the prior Thomas opinion. The Federal trial court, like in the first instance, remanded the case back to state court. After being re-remanded, Carnival, for the first time, asked the State Court to compel the Jones Act claim to arbitration. The state court denied Carnival's motion on two separate grounds. Those grounds being: (1) the prior Federal Court's orders finding against arbitration precluded the issue to be reviewed for a third time and (2) Carnival's actions in proceeding in state court for over a year and a half waived its claimed right to arbitrate.

Carnival then appeal the second remand order to the Federal appellate court and the state court's order denying its motion to compel to the Florida appellate court. Richard Rusak, handling both appeals, was successful in obtaining an order from the Federal appellate court dismissing the appeal. On December 5, 2012, Richard Rusak argued the seaman's case to the Florida appellate court. Two weeks later on December 19, 2012 the state appellate court issued its opinion affirming the denial of Carnival's Motion to Compel arbitration.

December 23, 2012

Brais Law Firm Obtains $1.29 Million Dollar Settlement for a Seaman Who Developed Complex Regional Pain Syndrome and Underwent a Fasciotomy After Falling from a Ladder

Florida Complex Regional Pain Syndrome Lawyers.jpgThe maritime attorneys Keith Brais & Richard Rusak of the Brais law firm had the honor to represent Mr. Lloyd Hughes. Mr. Hughes was an assistant engineer for Ft. Worth, Texas based CSC Applied Technologies, LLC. CSC Applied Technologies was awarded a contract from the United States Navy to furnish all personnel, services and such other resources necessary to maintain and operate the Atlantic Undersea Test and Evaluation Center (AUTEC). Located on Andros Island in the Bahamas, AUTEC's mission is to provide instrumented operational areas in a real world environment to satisfy research, development, test and evaluation requirements and operational performance assessment of war fighter readiness in support of the full spectrum of maritime warfare.

As a part of his shipboard responsibilities, Mr. Hughes was required to maintain, repair and replace, as needed, shipboard light fixtures aboard the Naval research vessel RANGE ROVER. On April 8, 2010, Mr. Hughes was attempting to replace a light bulb within an exterior halogen light fixture mounted to the fascia high above one of the ship's decks. As he was trained and as he'd done on numerous previous occasions, Mr. Hughes utilized a ladder to reach the light fixture. He loosened some and later all of the bolts holding the fixture in place in order to lower the fixture in a controlled fashion so he could work on it on deck. The fixture, however, did not lower away from the fascia as expected and, instead, remained fixed to the fascia because it had been painted over which caused it to be stuck. At this point, Mr. Hughes carefully pulled on the light fixture to break it free when it broke loose unexpectedly. Mr. Hughes' momentum, awkward position on top of the ladder and the unavailability of a co-worker caused him to fall off the ladder and strike the deck.

Mr. Hughes suffered serious injuries, including but not limited to: (a) a comminuted distal left tibia fracture a/k/a pilon fracture, (b) a proximal fibula fracture, and (c) a mild acute compression fracture superior endplate of the L1. Additionally, he suffered a broken small toe and badly bruised tail bone. He also developed compartment syndrome and later underwent bilateral (both sides) fasciotomy of his left leg. These surgeries left horrific scars to Mr. Hughes' leg. Later he was diagnosed by his treating neurologist with Complex Regional Pain Syndrome (CRPS) a/k/a Reflex Sympathetic Dystrophy (RSD) in his left leg. CRPS or RDS is a condition whereby a person experiences a burning type pain, tenderness and swelling of an extremity associated with varying degrees of sweating, warmth and/or coolness, flushing, discoloration and shiny skin. His injured required him to undergo multiple surgical procedures including a fasciotomy.

Court documents allege Mr. Hughes' fall and resulting injuries were the result of a routine job made unsafe and dangerous because; (a) the light fixture had been painted over and effectively sealed to the fascia, (b) the ladder in question was not reasonably suited for the intended purpose of working overhead and the height in question, and (c) no co-worker had not been assigned to assist Mr. Hughes while working in a precarious position and at an unsafe height.

After bringing suit in Federal Court against CSC Applied Technologies and the United States for their alleged negligence, the parties entered into a settlement whereby CSC contributed $1,040,000 and the United States contributed $250,000.

December 22, 2012

Brais Law Obtains Ruling from a Florida Court Allowing Seaman's Wife to Pursue a Loss of Consortium Claim

Florida Cruise Lawyer.jpgKeith Brais and Richard Rusak of the Brais maritime law firm obtained a ruling from a Florida court allowing the wife of an injured seaman to pursue a claim for loss of consortium. Loss of consortium is a claim typically possessed by the spouse of a person injured by the fault of another. This claim includes compensation for household chores the injured spouse now cannot perform as well as compensation for the non-injured spouse's loss of comfort and diminished social life the accident brought upon the marriage. Maritime law does not allow every spouse of an injured person to make a claim for loss of consortium. In fact, due to the improper interpretation of a Supreme Court ruling, the law has been rather unsettled.

History of Loss of Consortium in Maritime Cases

Courts have historically allowed for spouses of seamen whose injuries were caused by the unseaworthiness of the ships they worked aboard to bring a claim for loss of consortium. This tradition carried along until 1990 when the Supreme Court issued its opinion of Miles v. Apex Marine. In that case, a seaman was assaulted and killed by a fellow crewmember. The seaman's mother and the estate brought a claim against the shipping company for negligence under the Jones Act and Death on the High Seas Act. The mother included a loss of consortium claim. The Supreme Court held loss of consortium damages in seamen death cases are not available as a matter of law given such damages are not available under the Jones Act negligence statute and the Death on the High Seas Act. Lower courts applying the Miles holding started to hold loss of consortium as well as other nonpecuniary damages such as punitive damages were not available in any maritime death and personal injury lawsuit. Such was the law until 2009 when the Supreme Court issued its Atlantic Sounding v. Townsend opinion. That case involved the issue of whether punitive damages were available to seamen for a maritime employer's willful failure to provide illness benefits required under maritime common law. The Supreme Court was faced with the question of whether Miles precluded all traditional nonpecuniary remedies afforded to injured seaman before the enactment of the Jones Act and Death on the High Seas Act. The Supreme Court explained the Miles opinion only dealt with damages as they relate to a wrongful death case brought under the Jones Act and Death on the High Seas Act and such a holding should not impact traditional rights and legal remedies afforded to seamen before the enactment of those two statutes. The Supreme Court then undertook a historical analysis of punitive damages in maritime cases dating back to the colonial era and found seamen historically had the right to recover punitive damages when their employer acted willfully or recklessly in breaching their legal duties owed to their seamen. With Townsend clarifying that Miles was only limited to Jones Act and Death on the High Seas Act wrongful death cases, the issue became ripe to re-allow spouses of injured seamen to bring loss of consortium claims based upon injured resulted from the unseaworthiness of the vessel.

Cappello v. Carnival Cruise Lines

Brais law represents an engineer who lost his vision when the chemicals he was mixing for a cruise ship's desalination plant caused a violent reaction. As one can imagine the lives of the seaman and his wife changed dramatically after that day. Attorneys Keith Brais and Richard Rusak brought a lawsuit against Carnival on behalf of the injured crewmember seeking compensation for the loss of his sight and on behalf of his wife seeking compensation for her essentially becoming the "eyes" of her now visually handicapped husband. Carnival sought to dismiss the wife's loss of consortium claim arguing Miles precluded the claim and there was no historical right for loss of consortium. Richard Rusak and Keith Brais filed opposing briefs providing examples where courts throughout the United States allowed loss of consortium claims dating back to 1858. They then argued the Townsend holding must be applied to allow loss of consortium claims. The court agreed and denied Carnival's motion and allowed the loss of consortium claim to proceed.