Opinion
Civil Action No. 04-1636, c/w 05-896, 05-897 SECTION "A" (4).
December 14, 2005
Before the Court are Motions for Partial Summary Judgment filed by defendants Rowan Companies, Inc. and Unocal (Rec. Doc. 128), Keystone Helicopter Corp. (Rec. Doc. 138), APS FreeFlight Systems GP, LLC (Rec. Doc. 141), Honeywell International Inc. (Rec. Doc. 144), and Sikorsky Aircraft Corp. and UTC (Rec. Doc. 147). The Breaux and Janning plaintiffs have filed oppositions to the motions. The O'Neal plaintiffs have advised the Court via correspondence dated August 26, 2005, of their position on the issues presented. The motions, set for oral hearing on November 2, 2005, were taken under submission following a status conference on November 30, 2005.
The oral hearing did not go forward in light of the Court's relocation to New Orleans from its temporary chambers in Baton Rouge following Hurricane Katrina.
I. BACKGROUND
This suit arises out of the tragic March 23, 2004, helicopter crash that occurred in the Gulf of Mexico, approximately 60 to 90 miles offshore from Galveston, Texas. Both crew members and all eight passengers were killed. The helicopter was transporting workers from Galveston to the offshore drill ship, Discoverer Spirit, at the request of defendant Unocal. The NTSB and Federal Aviation Administration are still conducting investigations into the cause of the accident.
Tyler Breaux, one of the eight passengers, was employed by Halliburton Energy Services, Inc., as an "Operator Assistant-Nitrogen." Halliburton had contracted Mr. Breaux's services to Unocal Corporation for work aboard the Discoverer Spirit. Unocal chartered the helicopter from defendant Era Aviation, Inc. ("Era"), who owned and operated the aircraft, to transport the workers to the vessel.
Plaintiff Shannon Breaux (Civil Action 04-1636) is the widow of Tyler Breaux. She is suing in her capacity as the administratrix of the succession of Tyler Breaux, on behalf of herself, Tyler Breaux, and her minor children, Tyler Breaux, Jr. and Bryce Breaux. Plaintiff Diana L. Janning (Civil Action 05-896) is the widow of Donald James Janning, one of the two crew members killed in the crash. She is suing individually and as administratrix of the estate of Donald James Janning. Plaintiff Pamela Cook O'Neal (Civil Action 05-897) is the widow of Timothy Boyd O'Neal, the second crew member. She is suing in her capacity as the administratrix of the estate of Timothy Boyd O'Neal, on behalf of herself and Timothy Boyd O'Neal, and their children Jeannette Michelle O'Neal (twenty-three years of age), James Patrick O'Neal (twenty-one years of age), and Shannon Leigh O'Neal (eighteen years of age).
II. DISCUSSION
A. The Parties' Contentions
In these motions Defendants seek partial summary judgment dismissing Plaintiffs' claims for non-pecuniary damages other than for loss of care, comfort and companionship, including any exemplary or punitive damages. Defendants assert that Plaintiffs' claims are governed by the Death on the High Seas Act ("DOHSA"), 46 app. U.S.C. § 761, et seq., and that the statute precludes recovery of any non-pecuniary damages not specifically enumerated.
The Breaux plaintiffs recognize that the scope of their recoverable damages is governed by DOHSA. Consequently, they concede that Ms. Breaux cannot recover for any pre-death pain and suffering experienced by Tyler Breaux, Sr. Plaintiffs further concede that to the extent that "hedonic damages" can be equated to damages to compensate the survivors for their own grief and mental anguish, those damages are likewise not recoverable. However, the Breaux plaintiffs assert that damages for "loss of consortium and/or society" are properly recoverable and that their claim for "the tragic, untimely and wrongful death" of Tyler Breaux, Sr. should be allowed to stand.
The O'Neal plaintiffs concede that under the current state of the law DOHSA provides the exclusive remedy against the non-employer defendants. The O'Neal plaintiffs argue that Captain O'Neal's pre-death pain and suffering is potentially recoverable, however, because they have sued Captain O'Neal's employer, Era, under the Jones Act, and that the Jones Act provides for pre-death pain and suffering.
Captain O'Neal's status as a Jones Act seaman is not an issue currently before the Court. The Court's ruling today regarding recoverable damages pertains only to those claims governed by DOHSA. Whether any plaintiff has a claim outside of DOHSA that would be cognizable in this litigation is a question for another day.
Ms. Janning concedes that she is limited to recovery of those damages allowed under DOHSA. She adopts the arguments in opposition raised by the Breaux and O'Neal plaintiffs.
In reply, Rowan and Unocal emphasize that DOHSA is a wrongful death statute with no survival action provision. Therefore, dismissal of all claims brought on behalf of the three estates, including any hedonic damages, is appropriate. Keystone Helicopter argues that "loss of society" and "loss of consortium" are not recoverable under the rubric of "loss of care, comfort and companionship," and should therefore be stricken. Finally, Rowan, Unocal, and Keystone Helicopter argue that including damages for "a wrongful, tragic, and untimely death" is improper because such a provision is duplicative, argumentative, and not recoverable as a separate item of recoverable damages.
Rowan and Unocal do not dispute that Plaintiffs can recover for "loss of consortium and/or society." (Memo. at 9).
B. Law and Analysis
DOHSA provides in pertinent part:
(a) Subject to subsection (b), whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State . . . the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.
(b) In the case of a commercial aviation accident, whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas 12 nautical miles or closer to the shore of any State . . ., or the District of Columbia, or the Territories or dependencies of the United States, this chapter shall not apply and the rules applicable under Federal, State, and other appropriate law shall apply.46 app. U.S.C. § 761. Section 762 pertains to recovery and provides in relevant part:
(a) The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death of the person by whose representative the suit is brought.
(b)(1) If the death resulted from a commercial aviation accident occurring on the high seas beyond 12 nautical miles from the shore of any State . . . additional compensation for nonpecuniary damages for wrongful death of a decedent is recoverable. Punitive damages are not recoverable.
(2) In this subsection, the term "nonpecuniary damages" means damages for loss of care, comfort, and companionship.46 app. U.S.C. § 762 (emphasis added). Where a death occurs on the high seas, DOHSA provides a cause of action for wrongful death — an action by relatives of the decedent to sue for their pecuniary losses. Jacobs v. Northern King Shipping Co., 180 F.3d 713, 717 (5th Cir. 1999) (citing Dooley v. Korean Air Lines Co., 118 S. Ct. 1890, 1892 (1998)). In Dooley, supra, the United States Supreme Court confirmed once again that DOHSA does not authorize recovery for the decedent's own losses via a survival action. 524 U.S. at 122. Thus, beneficiaries cannot recover for inter alia the decedent's pre-death pain and suffering. Id. Further, Dooley reconfirmed the well-established principle that DOHSA does not permit recovery for non-pecuniary losses. Id.
However, in 2000 the post-Dooley Congress amended DOHSA to allow for the additional recovery of certain non-pecuniary damages where death results from a commercial aviation accident occurring beyond 12 nautical miles from the shore of any state. 46 app. U.S.C. § 762(b)(1). The amendment does not open the door to every category of non-pecuniary damages known to litigation. Rather, DOHSA allows only for those "nonpecuniary damages" defined as "loss of care, comfort, and companionship." Id. § (b)(2). Punitive damages, which fall into the category of nonpecuniary damages, are expressly precluded. Id. § (b)(1). No party disputes that this helicopter crash was a commercial aviation accident occurring beyond 12 nautical miles from shore.
Based on the foregoing, Plaintiffs cannot recover for any damages sought on behalf of the decedents' estates, including pre-death pain and suffering (physical and mental) and hedonic damages. DOHSA is a wrongful death statute that compensates certain survivors for their own damages. Therefore, any claims brought on behalf of the decedents and/or their estates is dismissed.
"Hedonic damages" compensate the decedent for the loss of the pleasure of being alive. Black's Law Dictionary 395 (7th ed. 1999).
Likewise, Plaintiffs' claims for punitive damages and damages to compensate for their own mental anguish, grief, and suffering are dismissed because they are nonpecuniary in nature and do not fall into the category of "loss of care, comfort and companionship," the sole category of nonpecuniary damages recognized by DOHSA. The only point of contention is whether Plaintiffs can recover for loss of society and loss of consortium. The Breaux Plaintiffs contend that "loss of care, comfort and companionship" cannot be distinguished from damages for "loss of society." (Memo. at 4).
Loss of society is a nonpecuniary element of damages that compensates for "a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort and protection. Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 585 (1974). Loss of consortium, which encompasses loss of society, is a much broader element of damages. Id. at 589; Cruz v. Hendy International Co., 638 F.2d 719, 722 (5th Cir. 1981),overruled on other grounds, Michel v. Total Transp., Inc., 957 F.2d 186, 191 (5th cir. 1992). Loss of consortium includes pecuniary components, such as loss of services, and non-pecuniary components such as love, companionship, affection, society, sexual relations, comfort, and solace, which in effect sum up to "loss of society." Id. at 722.
This Court agrees with the position taken by the Breaux Plaintiffs in that loss of society, when broken into its constituent elements, cannot be readily distinguished from the "loss of care, comfort and companionship" that DOHSA recognizes. The same holds true for the non-pecuniary aspects of a loss of consortium claim. To try to distinguish "loss of care, comfort and companionship" from loss of "love, companionship, affection, society, sexual relations, comfort, and solace" would be an exercise in futility.
The design of the jury verdict form is by no means before the Court at this time. However, Plaintiffs should not assume based on the Court's ruling today that the Court will allow multiple interrogatories directed to their nonpecuniary losses. As explained above, "loss of care, comfort and companionship," society, and consortium are all interrelated, and therefore would properly form the basis of a single interrogatory. Plaintiffs would then be free to argue to the jury that "loss of care, comfort and companionship" includes love, affection, etc.
Finally, Plaintiffs' claim for "the tragic, untimely and wrongful death" of the decedents must be dismissed because it is too nebulous to define for the jury and because it is duplicative of the other pecuniary damages that Plaintiffs are seeking in this litigation. To the extent that the "the tragic, untimely and wrongful death" of decedents is nonpecuniary in nature, it is excluded by DOHSA.
Accordingly;
IT IS ORDERED that the Motion for Partial Summary Judgment filed by defendants Rowan Companies, Inc. and Unocal (Rec. Doc. 128) and the Motion for Partial Summary Judgment (Rec. Doc. 141) filed by defendant APS FreeFlight Systems GP, LLC should be and are hereby GRANTED;
IT IS FURTHER ORDERED that the Motions for Partial Summary Judgment filed by defendants Keystone Helicopter Corp. (Rec. Doc. 138), Honeywell International Inc. (Rec. Doc. 144), and Sikorsky Aircraft Corp. and UTC (Rec. Doc. 147) should be and are hereby GRANTED IN PART AND DENIED IN PART. The motions are DENIED insofar as these defendants seek to preclude Plaintiffs from seeking recovery for loss of society and/or consortium as part of "loss of care, comfort and companionship."