Scharfenstein v. Avena Shipping of Cyprus

131 So. 3d 256, 13 La.App. 5 Cir. 497, 2013 WL 6504357, 2013 La. App. LEXIS 2569
CourtLouisiana Court of Appeal
DecidedDecember 12, 2013
DocketNo. 13-CA-497
StatusPublished
Cited by1 cases

This text of 131 So. 3d 256 (Scharfenstein v. Avena Shipping of Cyprus) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scharfenstein v. Avena Shipping of Cyprus, 131 So. 3d 256, 13 La.App. 5 Cir. 497, 2013 WL 6504357, 2013 La. App. LEXIS 2569 (La. Ct. App. 2013).

Opinions

ROBERT M. MURPHY, Judge.

| oThis case arises from the injury sustained by a plaintiff, Michael L. Scharfen-stein, while working as a linesman on the Mississippi River. Mr. Scharfenstein tore his rotator cuff when he attempted to flee from an anchor chain that was falling from Defendants’ ship. Defendants, Dalnave Navigation, Inc., Avena Shipping of Cyprus, and Assuranceforeningen Gard— Gjensidig, appeal a judgment, rendered after a trial on the merits, in favor of Mr. Scharfenstein.

In this appeal, Defendants argue the trial court erred in finding the prevention of Mr. Scharfenstein’s injury was foreseeable; finding Mr. Scharfenstein’s injury was substantially caused by their action; accepting Mr. Scharfenstein’s lost work-life expectancy; and in awarding excessive damages to Mr. Scharfenstein.

On cross appeal, Mr. Scharfenstein’s former wife, Ms. Scharfenstein, also a plaintiff in this action, argues the trial court erred when it rejected her loss of consortium claim. For the following reasons, we affirm the trial court’s judgment in favor of Mr. Scharfenstein and affirm the trial court’s judgment denying Ms. Scharfen-stein’s loss of consortium claim.

| ¿PROCEDURAL HISTORY

Plaintiffs filed their original petition against Defendants on December 3, 2007, alleging Defendants were liable to them under state law and under 33 U.S.C. § 905(B), the Longshore and Harbor Workers Compensation Act.

A bench trial was held on October 29, 2012. At the close of trial, the court took the matter under advisement. The trial court issued its judgment on this matter on January 28, 2013. In that judgment, the trial court found Mr. Scharfenstein was a Longshoreman; that the defendants bore 100% of the fault for causing plaintiffs injuries; and that defendants owed Mr. Scharfenstein damages in the amount of $705,494.50 for his outstanding medical bills; past and future lost wages; lost fringe benefits; past and future physical suffering and disability; and, past and future mental anguish and psychiatric disability. The trial court ordered that legal interest be paid on the outstanding medical bills, past lost wages, past physical pain, suffering and disability and past mental anguish and psychiatric disability, from the date of loss. The trial court also ordered legal interest to be paid on the remaining damages of future loss of wages, loss of fringe benefits, future physical pain, suffering and disability and future mental anguish and psychiatric disability, from the date of judicial demand. Finally, the trial court also denied Ms. Scharfenstein’s claim for loss of consortium.

On January 31, 2013, the trial court granted Defendants’ motion for appeal. In this appeal, Defendants assign as error the trial court’s findings as to foreseeability, causation, work-life expectancy, and general damages. The Defendants do not assign as error, the trial court’s finding [261]*261that Mr. Scharfenstein was a longshoreman at the time of the accident. On cross appeal, Plaintiffs contend that the trial court erred in denying Ms. Scharfenstein’s claim for loss of consortium.

| ¡¡FACTS

At trial, Mr. Scharfenstein testified that on the date of his injury, on or about April 12, 2006, Mr. Scharfenstein was working as a linesman for Cooper/T. Smith. That day, Mr. Scharfenstein was ordered to captain the Intrepid III, a small boat used as a mooring launch, to rendezvous with the M/V Server, an oceangoing ship, on the Mississippi River and to attach that ship’s lines to a mooring.

Mr. Scharfenstein began this job with two crew members, Lee Campo and David White. Mr. Scharfenstein testified his procedure is to first secure the starboard side lines, then to secure the lines on the ship’s port-side. The three men met the ship and attached its mooring lines. However, two lines on the ship’s portside detached from the mooring. The ship brought these two lines out of the water and back into the ship.

In a second attempt to secure the ship’s port-side mooring lines, Mr. Scharfenstein brought the Intrepid III back to a spot where the other crew members could grab the ship’s mooring lines. Mr. Scharfen-stein testified “we came back up, waited for the pilot to give us the okay.” The ship’s anchor chain was hanging straight down. Mr. Scharfenstein radioed the ship to ask “cap, is everything locked down?” The ship’s pilot gave him the okay, telling him “Yes.”1 After receiving this confirmation, Mr. Scharfenstein waited until the ship lowered two mooring lines to a height of two to five feet above the water. He then navigated the Intrepid III to the lines. When the Intrepid III approached the ship, the ship was on the Intrepid Ill’s starboard side. When in position to grab these lines, the Intrepid III was between one and two feet from the ship’s anchor chain. There, his two crew members each grabbed a line.

IfiMr. Scharfenstein testified that he allowed his crew to grab these lines by hand rather than with a pole with a hook because he only uses the pole in unsafe situations. Mr. Scharfenstein gave an example of it being unsafe to bring the boat up to mooring lines near tight and stretched out anchor chains. Mr. Scharfenstein contrasted that situation from the situation on the day of his accident; this accident occurred when the ship’s anchor chain was almost straight down into the water.

The crew grabbed the lines near to the Intrepid Ill’s bow and began walking the lines to the stern in order to secure them. Mr. Scharfenstein was near the center of the boat with his left hand on the boat’s wheel and his right hand on its throttle. Almost immediately after the other crew members each grabbed a mooring line, the ship’s anchor chain began to fall. The links of the chain made a loud noise as they began to drop.

In response to this noise, Mr. Scharfen-stein testified that he knew something was going wrong, and, in an attempt to escape, he “slammed the throttle forward and tried to look up at the same time.” The dropping anchor chain frightened him. He had seen drops such as this before, but they were very rare. Mr. Scharfenstein testified that when he engaged in this maneuver he felt a pop in his right shoulder [262]*262and an instant pain. He felt as if he’d been shot or had been hit with a knife in his shoulder.2 Mr. Scharfenstein attributed this pain to his movement slamming the throttle forward, not the Intrepid Ill’s subsequent acceleration. Mr. Scharfen-stein testified that this action caused his rotator cuff to tear.

After his response, despite his pain, Mr. Scharfenstein completed the job of mooring the ship. He then navigated the Intrepid III to the ship’s stern, picked up | fits captain, and returned to shore. After completing his mission, Mr. Scharfenstein went to the hospital.3

At the hospital, Dr. Hoffman diagnosed him with a torn rotator cuff in his right shoulder. Dr. Hoffman performed surgery on Mr. Scharfenstein’s shoulder in an attempt to repair his tear. Following his surgery, Mr. Scharfenstein underwent six months of physical therapy. He later returned to work where he initially performed light-duty work. Eventually, Mr. Scharfenstein returned to full duty work. However, after a few days of strenuous work, Mr. Scharfenstein testified he felt his shoulder was sore and that “something was once again wrong.” Mr. Scharfen-stein reported this pain to Cooper/T.

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131 So. 3d 256, 13 La.App. 5 Cir. 497, 2013 WL 6504357, 2013 La. App. LEXIS 2569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scharfenstein-v-avena-shipping-of-cyprus-lactapp-2013.