Background:
Plaintiff, Armando Zertuche ("Zertuche"), appealed the district court's order denying his motion to remand and granting defendant's motion for summary judgment on his claim brought under the Jones Act.

Zertuche alleged he was injured while working on a dredge owned by Great Lakes Dredge and Dock Company, ("Great Lakes"). Great Lakes removed the suit to the United States District Court for the Southern District of Texas on the basis Zertuche was not a seaman under the Jones Act. The District Court concluded that Zertuche could not establish his status as a seaman and granted Great Lakes' motion for summary judgment.

To qualify as a seaman under the Jones Act, a plaintiff must demonstrate that (1) his duties contribute to the function of a vessel or to the accomplishment of its mission and (2) he has a connection to a vessel in navigation that is substantial in duration and nature.

Generally the Supreme Court has adopted a rule of thumb that a worker who works less than 30 percent of his time in the service of a vessel in navigation should not qualify as a Jones Act seaman.

Great Lakes contended that Zertuche was hired to be a dump foreman and not a deckhand. Zertuche, in his affidavit, stated he worked as a deckhand for over fifty percent of the time of his employment with Great Lakes.

According to this Court, the evidence before the district court on the motion to remand created a dispute over material facts, how long Zertuche worked for Great Lakes and in what capacity.

This Court found that Zertuche was allowed to rely upon the allegations in his affidavit and that Great Lakes has a heavy burden to show there is no possibility Zertuche could prove the facts to establish his seaman status.

Great Lakes' only rebuttal to Zertuche's allegations that he worked over 50 percent of his time as a deckhand was their own affidavit stating Zertuche was hired in 2006 as a dump foreman.

Accordingly, this Court reversed the district court's orders denying the motion to remand and granting summary judgment.

Comment:
At issue here was the second prong of the Jones Act seaman test. That the plaintiff must show a connection to a vessel in navigation that is substantial in duration and nature. Here, Zerutche's affidavit stated that he worked 50 percent of his time as a deckhand. At summary judgment the facts presented are construed in favor of the nonmoving party. Therefore, Great Lakes had the burden to show that there was no possible way Zertuche could prove he was a seaman. This Court found Great Lakes' affidavit, stating he was hired as dump foreman, insufficient to prove Zertuche had no possible way of proving his seaman status under the Jones Act.

Steve Gordon
http://www.offshoreinjuries.com