Oil Rig Worker Case Headed To A Jury Trial

by Joseph G. Lariosa

CHICAGO (JGL) – United States District Court Judge Nannette Jolivette Brown of the U.S. District Court of Eastern Louisiana in New Orleans has ruled that if a spouse and children of a deceased Filipino oil rig worker Ellroy A. Corporal are still alive, his surviving parents have no standing to sue for damages.

In granting the motion to dismiss filed by defendants Black Elk, Wood Group, Shamrock and Grand Isle, Judge Brown cited Articles 2315.1 and 2315.2 of the Civil Code of Louisiana, which say that “where deceased is survived by a spouse and/or children, the deceased‘s parents have no right to recover damages. Without the right to recovery, the parents have no standing and cannot receive any damages, including punitive damages.”

Brown said, “All claims of Roberto Corporal and Monica Corporal against Black Elk, Wood Group, Shamrock and Grand Isle are dismissed with prejudice.” The Corporals are parents of Ellroy A. Corporal, 42, a rigger from Iligan City in the Philippines, one of the three Filipino oil rig workers, who died in 2012 explosion on the Black Elk Energy Offshore Operations LLC West Delta 32 Block platform in the middle of the Gulf of Mexico, about 17 miles southeast of Grand Isle, Louisiana.

The two other fatalities in that explosion were Avelino Tajonera, 49, a welder from Bataan, and Jerome Malagapo, 28, a rigger from Danao City, both of the Philippines.

But the lawsuit filed by Ellroy Corporal’s surviving spouse, Mary Jane Corporal and their children EllJean Mae M. Corporal and Ellroy M. Corporal, Jr., both minors, moves forward and is headed to a jury trial on Dec. 8, 2014, if not, Jan. 26, 2015.

The lawsuit filed by Roberto and Monica Corporal hinged on Louisiana Civil Code Art. 3546, which “allows a Louisiana court to award punitive damages if two of three criteria are met:

1.     Punitive damages are authorized by the state where the injury-causing conduct occurred;

2.     Punitive damages are authorized by the state where the injury occurred; and

3.     Punitive damages are authorized by the state where the defendant is domiciled.

TWO DEFENDANTS ARE BASED IN HOUSTON, TEXAS

The elder Corporals argue because two of the defendants – Black Elk and Wood Group – are headquartered and domiciled in Houston, Texas, the Texas law, Texas Civil Practice and Remedies Code Sections. 41.003(a)(3) and 71,004, should apply for their claims for punitive damages.

This Texas law (41.003(a)(3)) states that exemplary damages “may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from fraud, malice and gross negligence.”

They added Texas Civil Practice and Remedies Code Sec. 71.004 provides:

a)     An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children and parents of the deceased.

b)    The surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all.

The Corporals also cited the Wackenhut Corrections Corps v. de la Rosa case before the Texas Court of Appeals, which awarded $27-million in actual damages to the children and parents of an inmate, who died in prison, and awarded another $20.5-million in punitive damages although there was no reward for actual damages to the estate of the inmate.

Citing the Corpus Juris Secundum (CJS), an encyclopedia of the United States law at the federal and state levels, Judge Brown said, “a claim for punitive damages is not a separate claim or cause of action but merely a type of remedy or an element of a cause of action.

“Punitive damages cannot be pleaded as an independent cause of action but rather must be requested in conjunction with a cognizable cause of action. That is, before a plaintiff can recover punitive damages, he or she must first be entitled to a legal or equitable relief.”

WRONGFUL DEATH AND SURVIVAL ACTION SUITS

The Louisiana Civil Code Articles 2315.1 and 2315.2 address wrongful death and  survival action suits that govern who have the rights of action:

If a person, who has been injured by an offense or quasi offense, dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased. Or if a person dies due to the fault of another, suit may be brought by the following persons to recover damages, which they sustained as a result of death:

1.     The surviving spouse and child or children of the deceased, or either the spouse of the child or children;

2.     The surviving father and mother and child or children of the deceased, or either if he left no spouse or child surviving.

Aside from the Corporal case, Judge Brown is also handling the case filed by the spouse of Avelino Tajonera, Edna Tajonera and their children Maverick Tajonera and Edrian Tajonera, minor children, and adult daughter, Jade Tajonera.

Like the Corporal case, the Tajoneras are also filing cases for wrongful death, survival action, negligence, strict liability, actual, exemplary and punitive damages against Black Elk Energy Offshore Operations, LLC.

The complaint said Black Elk has a history of safety problems. Since 2010, Black Elk has been cited 315 times for safety violations, 157 of them were termed by the U.S. Bureau of Safety and Environmental Enforcement as “severe or threatening.” BSEE has also issued $307,000 civil penalty fine to Black Elk.

The Tajoneras are represented by Joseph C. Peiffer, Loretta G. Mince and Jeanette A. Donnelly of Fishman Haygood Phelps Walmsley Willis & Swanson, L. L. P. and Peter B. Schneider and Ryan r. C. Hicks of Schneider Wallace Cottrell Konecky LLP.  The Corporals retained Charles R. Talley, Michael J. O’Brien, Tod Everage and  Dylan T. Thriffiley of the Kean Miller LLP. (lariosa_jos@sbcglobal.net)

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PHOTO CAPTION

HEIRS OF AVELINO TAJONERA: Edna Tajonera (third from right), widow of Avelino Tajonera, and adult daughter, Jade D. Tajonera (second from left) are shown in this file photo during a press conference in New York last year. (JGL Photo Contributed by Philippine Forum)

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