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03/24/95 JAMES AUSTIN HAIRE v. DEVCON INTERNATIONAL

March 24, 1995

JAMES AUSTIN HAIRE
v.
DEVCON INTERNATIONAL CORPORATION



Appeal from DeKalb Circuit Court. (DR-94-50). David A. Rains, TRIAL JUDGE.

Rehearing Denied April 28, 1995, . Certiorari Denied August 18, 1995. Released For Publication February 17, 1996.

Monroe, Judge, Robertson, P. J., and Thigpen, Yates, and Crawley JJ., concur.

The opinion of the court was delivered by: Monroe

MONROE, Judge

This is an appeal from a summary judgment entered in favor of Devcon International Corporation (Devcon) on James Austin Haire's claim for benefits under the Alabama Workmen's Compensation Act. *fn1 Haire is a 60 year old resident of Crossville, DeKalb County, Alabama. He has worked on dredges for approximately 20 years. He worked for Devcon in Alabama between 1976 and 1979. In September 1987, while at his home in Crossville, Haire telephoned Devcon's main office in Florida about getting a job. A few weeks later, a Devcon representative called Haire's home in Alabama and offered him a job in Antigua, West Indies, working on a dredging operation as a "lever man." During this telephone conversation, Haire and Devcon agreed on his salary, hours, and other particulars of employment. Haire accepted the job and was told a prepaid ticket to Antigua would be provided for him. On October 4, 1987, Haire flew to Antigua to begin work. He completed a job application and other paperwork in Antigua. Haire was furnished a condominium in which to live during the Antigua project. He traveled home to Alabama four times a year and at Christmas for several days of vacation. Haire was promoted to captain of the dredge during his employment. He spent 50% of his time working on shore and the other 50% working aboard the dredge.

Devcon's Antigua operation included a 130 by 50 foot deck barge equipped with dredging equipment, another barge with a crane, and two tug boats which ferried workers to and from the barges and moved the dredge from one spot to another.

On July 28, 1991, Haire was injured in Antigua, West Indies. He was on land checking the drainage, and he slipped and fell while exiting a muddy bulldozer. Haire was seen by a doctor and was immediately flown home to Alabama. He sustained severe injuries to his left arm and back. He had two fractures to his left arm, requiring three surgeries. He suffered a compression fracture to the L-2 vertebrae that left him permanently impaired.

Haire received $480.00 per week as compensation; that is about 57% of his normal weekly work-pay of $840.00. Devcon discontinued those payments on September 11, 1992.

On November 23, 1992, Haire filed his original workmen's compensation complaint against Devcon International Corporation. He amended his complaint to claim damages under the Jones Act, 46 U.S.C.A. § 688, on December 23, 1992. The case was originally filed in the Etowah County Circuit Court; it was transferred to the DeKalb County Circuit Court on January 27, 1994. On May 25, 1994, the trial court granted Devcon's motion to dismiss Haire's Jones Act claim, and denied its motion to dismiss his workmen's compensation claim. On July 19, 1994, Haire filed a notice to proceed under Alabama's Workmen's Compensation Act. Devcon filed a motion for summary judgment.

The trial court granted Devcon's motion for summary judgment, holding that Haire was a "seaman" as a matter of law and that the Jones Act, 46 U.S.C.A. § 688 (1982), was his exclusive remedy. Haire appeals.

Haire contends that the trial court erred in holding he was a seaman and in concluding that the Jones Act was his exclusive remedy. He argues that the trial court based the summary judgment on a Conclusion that the court had no in personam jurisdiction over Devcon, and he argues that that Conclusion was erroneous.

In reviewing a summary judgment, we consider "the same factors considered by the trial court in initially ruling on the motion for summary judgment." Havens v. Trawick, 564 So. 2d 917, 919 (Ala. 1990). In essence, we determine whether there exists a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Costa & Head Dev. Co. v. Mayer Elec. Supply Co., 562 So. 2d 1323 (Ala. Civ. App. 1989).

We first must consider whether a genuine issue of fact exists as whether Haire was a seaman. The term "seaman" under the Jones Act has been liberally and broadly construed. Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959); Allen v. Mobile Interstate Piledrivers, 475 So. 2d 530 (Ala. 1975). An employee qualifies as a seaman under the Jones Act

"(1) if there is evidence that the injured worker was assigned permanently to the vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) 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 to the accomplishment of its mission, or to the operation ...


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