dickson v. indemnity insurance company of north america et al complaint

8/6/2019 DICKSON v. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA et al Complaint

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Case 5:11-cv-00096-TBR Document 1 Filed 06/06/11 Page 1 of 5 PageID #: 1


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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

_________________________________________________________________________

GERRY R. DICKSON ))

PLAINTIFF, )

)

)

VS. ) NO.:

)

)

NATIONAL MAINTENANCE )

& REPAIR OF KENTUCKY, INC. )

)

)DEFENDANT. )

COMPLAINT

COMES NOW the Plaintiff and for his cause of action against the Defendant,

National Maintenance & Repair of Kentucky, Inc. would state to the Court as follows:

1. The Plaintiff is a resident of Paducah, Kentucky.

2. The Defendant, to the best of Plaintiff's knowledge, information and belief, is,

and at all times material hereto was, a duly formed corporation, with principal offices located

in South Point, Ohio. The Defendant operates a fleet of vessels on the inland rivers of the

United States, including the Ohio River. The Defendant does business in Paducah,

Kentucky.

3. The Plaintiff is an American seaman and at all times material hereto was a

member of the crew of a vessel owned and operated by the Defendant. As an American

seaman the Plaintiff brings this action pursuant to 28 U.S.C. 1916, without the prepayment

of costs or the necessity of depositing security therefore.

5:08CV-8-R

Case 5:08-cv-00008-TBR Document 1 Filed 01/15/2008 Page 1 of 5Case 5:11-cv-00096-TBR Document 1-1 Filed 06/06/11 Page 1 of 5 PageID #: 6


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4. This action is brought pursuant to 46 U.S.C. 30104 et.seq., the Jones Act,

and the General Maritime Law of the United States. Jurisdiction is based upon 28 U.S.C.

1332(a)(1).

5. Plaintiff states that in September 2001, he began employment with the

Defendant. In or around December 2001 he started working as a member of the crew of

Defendants vessel, the M/V E.W. Thompson working as a harbor pilot. At all time pertinent

herein the Plaintiff operated the vessel on the Ohio River near and around Paducah,

Kentucky.

6. Beginning in or around December 2001, and continuing for a period of

time thereafter, the Plaintiff was caused to be exposed to diesel fumes in the wheelhouse of

said vessel. Said exposure was caused by the defective exhaust system of the vessel,

including the defective configuration of the exhaust stacks, and the improper maintenance of

the engine and the exhaust system, which caused excessive and dangerous amounts of diesel

fumes to accumulate and remain in the wheelhouse where Plaintiff worked. The Defendant

was advised of this condition, but it allowed the exhaust system to remain in this defective

condition and failed to properly maintain the vessels engines.

7. In or around August 2005, Plaintiff became extremely ill and learned at that

time that his health condition and illness was a result of his exposure to diesel fumes on

board the M/V E. W. Thompson.

8. As a result of the aforesaid exposure the Plaintiff was damaged in the

following respects:

a). Plaintiff developed multiple myeloma which has resulted in, among

other things, numerous fractures throughout his skeletal system;



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b). Plaintiff was required to seek and obtain necessary hospital;

medical treatment in an effort to be cured and relieved of the effects of his injuries;

c). Plaintiff has lost money from the loss of wages in the past and will

continue to lose money from lost wages in the future;

d). Plaintiff has suffered a loss of earning capacity;

e). Plaintiff has experienced pain and suffering in the past and will

experience pain and suffering in the future;

f). Plaintiff has suffered extreme mental distress and suffering and the

fear of death in the past and will experience extreme mental distress and suffering and the

fear of death in the future;

g). Plaintiff has suffered loss of the enjoyment of life in the past and will

experience loss of enjoyment of life in the future; and

h). Plaintiff has suffered disability and impairment as a result of his

injuries, and said disability and impairment are permanent.

9. Plaintiff alleges that the Defendant was negligent in the following respects:

a). The Defendant knew or by the exercise of due care should have known

that the exhaust system of the vessel, including the defective configuration of the exhaust

stacks on the vessel, was defective in such a way that excessive and dangerous amounts of

diesel fumes accumulated and remained in the wheelhouse of the vessel where the Plaintiff

worked. Despite this knowledge it allowed the system to remain in this defective condition;

b). The Defendant failed to provide Plaintiff with a safe place in

which to work; and



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c). The Defendant failed to properly maintain the engines and

exhaust system.

Said acts of negligence constituted the proximate cause of the Plaintiffs injuries.

10. Plaintiff states that the configuration of the exhaust stacks on the vessel and

the resulting accumulation of diesel fumes on its vessel rendered the vessel unseaworthy as

to the Plaintiff and constituted the proximate cause of the Plaintiffs injuries.

WHEREFORE, Plaintiff prays:

1. That upon a hearing of this cause, the Plaintiff, Gerry R. Dickson, be awarded

a judgment against the Defendant for damages, actual and special, for personal injuries,

together with the cost of prosecuting this cause.

2. That a jury be empaneled to try the issues when joined.

3. That the Court grant the Plaintiff such other, further and general relief as to

which justice may require.

Respectfully submitted,

BLOOMFIELD & KATZ



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/s/ Brian S. Katz

BRIAN S. KATZ, ESQ.

2226 Broadway, Suite 1

P.O. Box 2903

Paducah, KY 42002-2903(270) 575-3939

L. JEFF BLOOMFIELD, ESQ.

50 North Front Street, Suite 800

Memphis, TN 38173-0290

(901) 528-1702

ATTORNEYS FOR PLAINTIFF



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OJS 44 (Rev. 12/07) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as pr

y local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of inhe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First ListedPlaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

I. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for P(For Diversity Cases Only) and One Box for Defendant

1 U.S. Government 3 Federal Question PTF DEF PTF DPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated orPrincipal Place 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated andPrincipal Place 5

Defendant(Indicate Citizenship of Parties in Item III)

of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6

Foreign Country

V. NATURE OF SUIT (Place an X in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTE

110 Insurance PERSONAL INJURY PERSONAL INJURY 610 Agriculture 422 Appeal 28 USC 158 400 State Reapportionm

120 Marine 310 Airplane 362 Personal Injury - 620 Other Food & Drug 423 Withdrawal 410 Antitrust

130 Miller Act 315 Airplane Product Med. Malpractice 625 Drug Related Seizure 28 USC 157 430 Banks and Banking

140 Negotiable Instrument Liability 365 Personal Injury - of Property 21 USC 881 450 Commerce

150 Recovery of Overpayment 320 Assault, Libel & Product Liability 630 Liquor Laws PROPERTY RIGHTS 460 Deportation& Enforcement of Judgment Slander 368 Asbestos Personal 640 R.R. & Truck 820 Copyrights 470 Racketeer Influence

151 Medicare Act 330 Federal Employers Injury Product 650 Airline Regs. 830 Patent Corrupt Organizatio

152 Recovery of Defaulted Liability Liability 660 Occupational 840 Trademark 480 Consumer Credit

Student Loans 340 Marine PERSONAL PROPERTY Safety/Health 490 Cable/Sat TV(Excl. Veterans) 345 Marine Product 370 Other Fraud 690 Other 810 Selective Service

153 Recovery of Overpayment Liabil ity 371 Truth in Lending LABOR SOCIAL SECURITY 850 Securities/Commodiof Veterans Benefits 350 Motor Vehicle 380 Other Personal 710 Fair Labor Standards 861 HIA (1395ff) Exchange

160 Stockholders Suits 355 Motor Vehicle Property Damage Act 862 Black Lung (923) 875 Customer Challenge

190 Other Contract Product Liability 385 Property Damage 720 Labor/Mgmt. Relations 863 DIWC/DIWW (405(g)) 12 USC 3410

195 Contract Product Liability 360 Other Personal Product Liability 730 Labor/Mgmt.Reporting 864 SSID Title XVI 890 Other Statutory Acti

196 Franchise Injury & Disclosure Act 865 RSI (405(g)) 891 Agricultural Acts

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 740 Railway Labor Act FEDERAL TAX SUITS 892 Economic Stabilizat

210 Land Condemnation 441 Voting 510 Motions to Vacate 790 Other Labor Litigation 870 Taxes (U.S. Plaintiff 893 Environmental Mat

220 Foreclosure 442 Employment Sentence 791 Empl. Ret. Inc. or Defendant) 894 Energy Allocation A

230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus: Security Act 871 IRSThird Party 895 Freedom of Informa 240 Torts to Land Accommodations 530 General 26 USC 7609 Act

245 Tort Product Liability 444 Welfare 535 Death Penalty IMMIGRATION 900Appeal of Fee Determ 290 All Other Real Property 445 Amer. w/Disabilities - 540 Mandamus & Other 462 Naturalization Application Under Equal Access

Employment 550 Civil Rights 463 Habeas Corpus - to Justice

446 Amer. w/Disabilities - 555 Prison Condition Alien Detainee 950 Constitutionality of

Other 465 Other Immigration State Statutes

440 Other Civil Rights Actions

V. ORIGINTransferred fromanother district(specify)

Appeal to DJudge fromMagistrateJudgment

(Place an X in One Box Only)

1 OriginalProceeding

2 Removed fromState Court

3 Remanded fromAppellate Court

4 Reinstated orReopened

5 6 MultidistrictLitigation

7

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint

JURY DEMAND: Yes No

VIII. RELATED CASE(S)IF ANY

(See instructions):JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE


rry R. Dickson

e J. Bloomfielddwin, Morris, Laurenzi & Bloomfield, PC.N. Front, Suite 800, Memphis, TN 38103 Phone: (901) 528-1702

Indemnity Insurance Company of North America, XL SpecialtyInsurance Company, and Maintenance & Repair of Kentucky, I

28 U.S.C Sec. 2201 Declaratory Judgment

Declaratory Judgment

Thomas B. Russell 5:08-CV-8R-R

/s/ L. Jeff Bloomfield

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44 Reverse (Rev. 12/07)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as reqy law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for thf the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil comled. The attorney filing a case should complete the form as follows:

(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, ushe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, g

oth name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at thf filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation he county of residence of the defendant is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, nn this section (see attachment).

I. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an X f the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box.

ederal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment onstitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, an

or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship

ifferent parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

II. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this sor each principal party.

V. Nature of Suit. Place an X in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is suffo enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, he most definitive.

V. Origin. Place an X in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

emoved from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the peor removal is granted, check this box.

emanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.einstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

ransferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidtigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When thchecked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional stanless diversity. Example: U.S. Civil Statute: 47 USC 553

Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

ury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket nund the corresponding judge names for such cases.

ate and Attorney Signature. Date and sign the civil cover sheet.


dickson v. indemnity insurance company of north america et al complaint

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