Longshoreman Overcomes Insurance Company Hurdles
Type of action: Maritime tort
Injuries alleged: Mild/complex brain injury; fractured right hand
Court: Norfolk Circuit Court
Date resolved: Aug. 15, 2014
Special damages: Medical bills – $157,761; lost wages (present value) – $88,000
Verdict or settlement: Settlement
Attorneys for plaintiff: O.L. “Buzz” Gilbert, Norfolk; Richard Serpe, Norfolk; Ralph Rabinowitz, Norfolk; Alan Rashkind, Norfolk
Plaintiff worked as a tanker man aboard a barge discharging oil at a dock. Defendants, who had limited insurance coverage for a seaman, took the position that plaintiff was a seaman. Plaintiff claimed he was a longshoreman. After a trial on the issue of status, the plaintiff was found to be a longshoreman. Thereafter, one of the major excess insurance carriers filed a declaratory judgment action claiming that terms of the policy had been breached. Four insurance carriers were brought in to the case and eventually had 13 lawyers representing them. Plaintiff engaged Alan Rashkind as his attorney to be lead counsel in the declaratory judgment action. Plaintiff prevailed in that action on summary judgment.
Plaintiff was injured on a barge when a winch malfunctioned causing a boom to fall knocking him to the deck. Because plaintiff was a longshoreman, he had to prove 905(b) liability under the Longshore Harbor Workers Act. The winch with which the plaintiff was working had two gears and the plaintiff had never been warned that using the high gear was dangerous when the winch had a load on it. The plaintiff’s theory of the case was a negligent failure to warn of a latent hazard. During discovery it became apparent that other tanker men at the company were also unaware of this hazard and that none of them had ever had a warning from the defendant.
Plaintiff sustained a traumatic mild complex brain injury. It is unlikely that he will be able to return to work. He has balance problems and has yet to be released to drive a car four years post-accident. He was 38 at the time of his injury.