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Wisner v. Professional Divers of New Orleans3/2/1999
WISNER v. PROFESSIONAL DIVERS OF N.O., 98-1755 (La. 3/2/99); ___ So.2d ___
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF PLAQUEMINES
* VICTORY, J., not on panel. See Rule IV, Part 2, ยง 3.
We granted this writ to determine if a commercial diver, whose employment placed him on vessels for ninety percent of his work life, is a seaman and thus entitled to Jones Act coverage. After reviewing the record and applicable law, we reverse the lower courts' finding and hold that Jones Act coverage should not be withheld based upon the fact that the vessels upon which a diver works are not under his employer's common ownership and control. Because a commercial diver's duties continuously subject him to the perils of the sea, plaintiff is properly classified as a Jones Act seaman.
FACTS AND PROCEDURAL HISTORY
On January 15, 1994, Douglas C. Wisner (Wisner), a commercial diver by trade, was employed by Professional Divers of New Orleans, Inc. (PDNO) installing anodes on platforms and repairing pipelines while working aboard Exxon's fixed platform seventy-three in the West Delta region of the Gulf of Mexico. However, approximately twenty-one hours after making a dive of 165 feet, Wisner began to feel light headed and out of breath. On January 16, 1994, Wisner was flown to shore and subsequently sought medical attention at Jo Ellen Smith Regional Medical Center in New Orleans. After receiving hyperbaric treatment, Wisner was admitted to the hospital and later treated for tachycardia, which developed while he was in the hospital.
Wisner worked for PDNO as a diver from November 1992 until January 1994. In the course of his employment, Wisner was assigned to numerous jobs, ten percent (10%) of which required him to work off of fixed platforms and ninety percent (90%) of which required him to work from vessels. With the exception of the job at issue, Wisner slept and ate on the vessels from which he was diving. Wisner worked on approximately fourteen different vessels owned by twelve different companies while employed by PDNO.
In May 1994, Wisner filed his original petition alleging that he was a Jones Act seaman employed by PDNO at the time of his injury. PDNO then moved for summary judgment, alleging that Wisner was not a Jones Act seaman, but rather, a maritime worker who should be compensated under the Longshore and Harbor Workers Compensation Act. The trial court found that Wisner did not have a substantial connection to a vessel or fleet of vessels under some degree of common ownership or control and thus granted PDNO summary judgment, which was later affirmed by the court of appeal. Because we find Wisner faced regular exposure to the perils of the sea as a Jones Act seaman, we now reverse.
LAW AND DISCUSSION
A major body of seaman status law developed in the Court of Appeals for the Fifth Circuit in the wake of Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959). See, Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (1995). At the time of his injury, Robison was an oil worker permanently assigned to a drilling rig mounted on a barge in the Gulf of Mexico. In sustaining the jury's award of damages to Robison under the Jones Act, the court held as follows:
" here is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel . . . or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or the accomplishment of its mission, or to the operation or welfare of the ves
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