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White v. Fincantieri Bay Shipbuilding

United States District Court, E.D. Wisconsin

December 18, 2019

RODNEY WHITE, Plaintiff,



         Plaintiff Rodney White filed this action against Defendants Fincantieri Bay Shipbuilding, Fincantieri Marine Group LLC, Keystone Shipping Co., Chas Kurz & Co., Inc., and Wawa, Inc., seeking damages for injuries he sustained while working as a technician aboard a towing motor vessel as it underwent sea trials on Lake Michigan. The complaint asserts claims under the Longshore and Harbor Workers' Compensation Act (the Longshore Act), the Jones Act, and general maritime tort law, which fall within the court's admiralty jurisdiction. 28 U.S.C. § 1333. The complaint also asserts claims for common law negligence, respondeat superior, and punitive damages under Wisconsin law, over which the court has supplemental jurisdiction. 28 U.S.C. § 1367. Presently before the court is a motion filed by Defendants Fincantieri Bay Shipbuilding and Fincantieri Marine Group LLC to dismiss the Jones Act claim and the state law claims for negligence and punitive damages pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the motion to dismiss, Dkt. No. 9, will be granted but only in part.


         In considering a motion to dismiss, the court construes all allegations in the complaint in the light most favorable to the plaintiff, accepts all well-pleaded facts as true, and draws all inferences in favor of the non-moving party. Estate of Davis v. Wells Fargo Bank, 633 F.3d 529, 533 (7th Cir. 2011). To state a cognizable claim under the federal notice pleading system, the plaintiff is required to provide a “short and plain statement of the claim showing that he is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted). “[T]he plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.


         Plaintiff suffered traumatic brain injury and a herniated cervical disc while he was working aboard a registered towing motor vessel referred to as the M/V Millville (with official number 1281260) as it underwent sea trials. Plaintiff was working on the Millville in his capacity as a technician employed by Engine Motor, Inc. (EMI), a company that manufactures, installs, and services navigation and steering systems for motor vessels. The Millville was constructed by Defendant Fincantieri Bay Shipbuilding, Inc. (FBS) for Defendant Wawa, Inc. (Wawa); Defendant Keystone Shipping, Co. (Keystone) was to operate the Millville.

         On or about November 10, 2017, Plaintiff boarded the Millville (with the knowledge and permission of Defendants, including the ship's crew and master) as it left FBS's shipyard in Sturgeon Bay, Wisconsin, to conduct sea trials. Plaintiff was on the Millville to observe the operation of the EMI equipment that had been installed. As a technician, Plaintiff was tasked with installing and testing the steering equipment on the Millville and ensuring that it functioned properly.

         Plaintiff was in the galley of the Millville when the sea trials began and the vessel started “hardover test maneuvers.” Plaintiff alleges that he had no prior warning of the test maneuvers, which caused him and others to be physically thrown about. During these maneuvers, Plaintiff was “violently thrown, ” first against the starboard wall of the Millville and then against its port side. Plaintiff alleges that these maneuvers caused the serious injuries described above.

         Plaintiff alleges six causes of action in his complaint: (1) a claim for damages under § 905(b) of the Longshore Act; (2) an “unseaworthiness” claim under the Jones Act, 46 U.S.C. § 30104; (3) a negligence claim under general maritime tort law; (4) a claim for vicarious liability for error and omissions of Defendants' agents and employees (including the ship's crew and master) under the doctrine of respondeat superior; (5) a negligence claim under Wisconsin common law; and (6) a claim for punitive damages under Wis Stat. § 895.043.


         Defendant Fincantieri Marine Group, LLC (FMG) and Defendant FBS (collectively referred to herein as Fincantieri) filed a motion to dismiss three of the causes of action in Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). Fincantieri has moved to dismiss the claims of unseaworthiness (Count 2), common law negligence (Count 5), and punitive damages (Count 6).

         A. Unseaworthiness (Count 2)

         Count 2 of Plaintiff's complaint alleges that Defendants are liable for the “unseaworthiness” of the Millville that resulted in Plaintiff's injuries. Admiralty law establishes that shipowners must provide a seaworthy vessel to their crew (comprised of seamen), but this duty does not extend to longshoremen who are covered by the Longshore Act. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 208 n.6 (1996); Edward E. Gillen Co. v. Grenier, No. 09-CV-114-JPS, 2011 WL 3924818, at *1 (E.D. Wis. Sept. 7, 2011); The Law of Seamen § 27:2 (5th ed.) (“The person to whom the duty is owed to furnish a seaworthy ship in personal injury matters, is the seaman.”). While the Supreme Court attempted to extend the warranty of a seaworthy ship to longshoremen in Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), Congress subsequently overruled the extension of this duty in its amendments to the Longshore Act in 1972. Id. The amendment to § 905(b) of the Longshore Act-providing grounds for a longshoreman's general claim of negligence against a vessel owner-states that the “liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred.” 33 U.S.C. § 905(b). In other words, a claim for unseaworthiness under general maritime law is available to a seaman, but not to a longshoreman covered under the Longshore Act. See id.; Yamaha, 516 U.S. at 208 n.6; Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor v. Perini N. River Assocs., 459 U.S. 297, 321 (1983); Clemons v. Mitsui O.S.K. Lines, Ltd., 596 F.2d 746, 749 (7th Cir. 1979); Edward E. Gillen Co., 2011 WL 3924818, at *1. Instead, Congress amended the Longshore Act, which provided longshoremen with a separate cause of action for negligence and “made clear that it was abolishing the Sieracki unseaworthiness claim for plaintiffs covered” by the Longshore Act. Edward E. Gillen Co., 2011 WL 3924818, at *1; 33 U.S.C. § 905(b).

         Relying on language discussed by the Supreme Court in McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991), Plaintiff insists that his status as a seaman is a jury question. But while Wilander noted that in many cases this may be a jury question, it did not hold that whether a person qualifies as a seaman should be reserved for the jury in all cases. Id. at 356. The Court explained that “where the facts and the law will reasonably support only one conclusion” summary judgment or a directed verdict is required. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). Similarly, at the pleading stage, a complaint, or portion thereof, should be dismissed for failure to state a claim upon which relief may be granted if it does not “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. To hold otherwise would ...

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