Case l:13-cv-00107-HSO-RHW

Document 1 Filed 04/05/13 Page 1 of 13

SOOTHFRN DISTRICT OF MISSISSIPPI

IN THE UNITED STATES DISTRICT^URT R THE SOURTHERN DISTRICT OF MISSISSIP I FOR SOUTHERN DIVISION
BY

APR-52013
J T N08LIN CLERK DEPUTY

i-vNTWIA R HEBERT, INDIVIDUALLY; A ^ A ^ T H E PERSONAL REPRESENTATIVE A N S MOTHERO*CHRISTOPHER ALLEN HEBERT DECEASED; AND ON BEHALF OF HIS RIGHTFUL BENEFICIARIES AT LAW

PLAINTIFFS

CAUSE NO.: j^LlDJd*2

VERSUS

^ u

SSSSESKSU.oo-PA.nr,
S S AND JANE DOES A; B; C; D; E ; F; AND G
rOMPLATNT (JURY TRIAL REQUESTED) COME NOW THE PLAINTIFFS, by and through undersigned counsel, and file .heir Contain, against Defendants Omega Protein, ,e, ACE American
Inc,

DEFENDANTS

fi_

Company; ES,S,

and Jo hn and ,ane Does A-O, and in support thereof wou,d show the Court as follows: PARTIES

Pla i n fi ff Cyn, h iaR. d e a ,h

Herbert is the natura, mother and the persona, representative of the wrongfu.

benefices of Chfistopher Afien Hebert, deceased, whieh ine,nde Wiiiiant E. Hebert,

natural father; Evan R. Heb*rL brother; and Heather R. Smith, sister.

2

Defendant Omega Protein, fine, (hereafter "Omega Protein") is a fore.gn eorponation

g r a t e d in the Commonweauh of Virgin!, doing business in the State of Mississ.ppi, and e m i t t e d a tor, in the State of Mississippi. Defendant Omega Protein, ,ne,s pfincipa, p.ace of

!**

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 2 of 13

served with process on its registered agent for service of process CT Corporation System, 645 Lakeland East Dr., Suite 101, Flowood, Mississippi 39232 in the time and manner prescribed by law. 3. Defendant ACE American Insurance Company (hereafter "ACE American") is a foreign insurance company doing business in the State of Mississippi, and committed a tort in the State of Mississippi. Defendant ACE American is located at 436 Walnut Street, Philadelphia, Pennsylvania 19106 and may be served with process on its registered agent for service of process CT Corporation System, 645 Lakeland East Dr., Suite 101, Flowood, Mississippi 39232 in the time and manner prescribed by law. 4. Defendant ESIS, Inc. (hereafter "ESIS") is a foreign corporation doing business in the State of Mississippi, and committed a tort in the State of Mississippi. Defendant ESIS is located at 436 Walnut Street, Philadelphia, Pennsylvania 19106, and may be served with process on its registered agent for service of process CT Corporation System, 645 Lakeland East Dr.,Suite 101, Flowood, Mississippi 39232, in the time and manner prescribed by law. Based on information and belief, ESIS is a wholly owed, controlled and operated subsidiary of ACE American Insurance Company, or they are "sister companies" of ACE Group. 5. Defendants John and Jane Does A-G are individuals, corporations, or other entities that caused or contributed to the injuries and damages of the Plaintiffs addressed herein, but whose identities are at present unknown to the Plaintiffs. Plaintiffs will amend their Complaint at a future date to properly identify John and Jane Doe Defendants, if any, once their true identity(s) are learned, and their liability ascertained.

a*

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 3 of 13

JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction under the provision of Title 28, United States Code 1332, in that this suit is a civil action between citizens of different States wherein the matter and actual controversy exceeds the sum value of $75,000.00, exclusive of interest and costs. 7. Venue in this civil action is appropriate in this Court pursuant to Title 28, United States Code 1391, as a substantial part of the events or omissions giving rise to the claims of the Plaintiffs occurred in the Southern Division of this Court specifically Moss Point, Mississippi. FACTS 8. By reference, each of the preceding paragraphs are adopted and incorporated herein. 9. As of April 9, 2012, Christopher Hebert, deceased, had been an employee at Omega Protein's Moss Point, Mississippi fish processing facility for approximately three years. During that time, Christopher worked in the maintenance department and performed general maintenance tasks at the facility as directed by his supervisors at Omega Protein. During the time Christopher worked at Omega Protein, Christopher contacted his supervisors at the Moss Point facility, as well as the corporate offices of Omega Protein in Houston, Texas, and reported what he believed to be unreasonably unsafe and dangerous working conditions that existed at the Moss Point facility. Based on information and belief, no actions were taken to improve and/or cure the unsafe and dangerous working conditions that were presented at the Moss Point facility. 10. Upon information and belief, because Christopher's reports of unsafe and dangerous work conditions were not acted upon by Omega Protein, Christopher began to discuss with other employees and management the need to unionize the workers at the Moss Point facility. Christopher began the process of unionization by having the employees sign a petition.

II9&

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 4 of 13

Christopher believed that unionization of the employees at the Moss Point facility would help to improve the working conditions and eliminate the unsafe and unreasonable dangerous conditions there. Based upon information and belief, Christopher's efforts to unionize the employees of Omega Protein were met with harsh resistance from the management at Omega Protein. Based on information and belief, Christopher was harassed by the management of Omega Protein for his unionization efforts. 11. On April 9, 2012, Christopher reported to work at the Moss Point facility. After arriving at work, he was directed by Supervisor Wayne Gray to weld the seams of a newly installed hopper that released fish products into a single screw conveyor at its base. At that time, Supervisor Gray assigned an employee to be Christopher's safety watchperson. This new At

"safety" watchperson was not the same watchperson Christopher partnered with normally.

the time Christopher began his work, the single screw conveyor equipment remained energized and operational. At the time Christopher began his work, Christopher was unaware that the single screw conveyor was energized and operational. The single screw conveyor was not locked out or otherwise prevented from operating. While Christopher was inside the single screw conveyor, his safety watchperson left without notifying Christopher. After the safety watchperson left, another employee was directed by an Omega Protein supervisor to turn on the single screw conveyor. 12. When the single screw conveyor was activated, Christopher was dragged into the machinery feet first. Christopher began screaming for help as the machine dragged him in. Other employees heard Christopher's screams and arrived at Christopher's location. Christopher's last words were "I'm dead!" Christopher died of massive blood loss.

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 5 of 13

13. Based upon information and belief, Defendant Omega Protein intentionally chose not to have lockout equipment and safety rules for the single screw conveyor which killed Christopher. Based on information and belief, Defendant Omega Protein intentionally left Christopher unattended in the energized and operational single screw conveyor without a safety watchperson. Based upon information and belief, Defendant Omega Protein, by and through it employees, engaged in intentional conduct designed to bring about injury, or death, to Christopher. 14. Based upon information and belief, on April 9, 2012, Defendant ACE American Insurance Company had in effect contract(s) and/or policy(s) of insurance which provided Defendant Omega Protein with workers' compensation insurance and/or workers' compensation excess insurance and other services. The contract(s) and/or policy(s) of insurance specifically provided that Defendant ACE American had the duty to (1) make safety inspections of the plant and machinery in general used by Defendant Omega Protein and had a duty to make safety inspection of the single screw conveyor specifically; (2) to oversee the maintenance and safety of Defendant Omega Protein's equipment; and (3) implement machinery safety rules, including specific machinery lockout safety rules for energized equipment. 15. Based on information and belief, Defendant Omega Protein relied on Defendant ACE American to make inspections and implement safety rules in order to assure the safe operation of the machinery located at Defendant Omega Protein's Moss Point facility. Defendant Omega Protein did not have or implement its own specific lockout safety rules based on its reliance upon Defendant ACE American's duty to implement safety rules.

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 6 of 13

16. Based upon information and belief, Defendant ACE American utilized its own company, Defendant ESIS, Inc., to make the required inspections of Defendant Omega Protein's machinery and to implement safety rules regarding the lockout of energized machinery. Defendant ESIS had contract(s) with Defendant Omega Protein to make inspections and implement safety rules, including specific machinery lockout safety rules for energized equipment. Defendant Omega Protein relied on Defendants ESIS and ACE American to make safety inspections and implement safety rules in order to assure the safe operation of the machinery located at Defendant Omega Protein's Moss Point facility. 17. Based on information and belief, Defendants ACE American and ESIS knew that the single screw conveyor was dangerous machinery that had a high probability to cause injury or death to the employees of Defendant Omega Protein. Defendants ACE American and ESIS failed to conduct inspections of this dangerous machinery. Defendants ACE American and ESIS did not implement specific machinery lockout safety rules for Defendant Omega Protein regarding the single screw conveyor. 18. Upon information and belief, the above referenced contract(s) and/or policy(ies) of insurance in effect on April 9, 2012 were made for the sole benefit of providing protection to the employees of Omega Protein, like Christopher A. Hebert, deceased. CAUSES OF ACTION COUNT I: OMEGA PROTEIN INTENTIONALLY INJURED CHRISTOPHER HEBERT, DECEASED 19. By reference, each of the preceding paragraphs are adopted and incorporated herein. 20. Defendant Omega Protein engaged in intentional misconduct designed to bring about injury or death to Christopher A. Hebert, deceased. Defendant Omega Protein intentionally chose not have or implement machinery lockout equipment and safety rules regarding the single

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 7 of 13

screw conveyor, which machinery caused the death of Christopher A. Hebert. Defendant Omega Protein intentionally chose to leave Christopher Hebert, deceased, unattended inside dangerous energized and active machinery. Further, Defendant Omega Protein intentionally activated the single screw conveyor with knowledge that Christopher A. Hebert was working inside the conveyor, which conduct was designed and intended to cause injury or death to Christopher A Hebert, deceased. 21. Defendant Omega Protein is liable to the Plaintiffs for the aforementioned intentional acts, which conduct caused the wrongful death of the decedent, Christopher A. Hebert, and the resulting injuries and damages suffered by the Plaintiffs as set forth in this Complaint. COUNT II: ACE AMERICAN AND ESIS BREACHED THEIR DUTY TO INSPECT 22. By reference, each of the preceding paragraphs are adopted and incorporated herein. 23. Upon information and belief, Defendant ACE American and ESIS through its contract(s) and/or policy(s) of insurance, undertook the duty to make safety inspections of the machinery of Defendant Omega Protein. Defendants ACE American and ESIS undertook the duty to render services to Omega Protein which ACE American and ESIS recognized as necessary for the protection of the employees of Omega Protein, like Christopher A. Hebert, deceased. Defendants ACE American and ESIS willfully, intentionally and with negligence and gross negligence evidencing careless disregard for the employees, like Christopher A. Hebert, deceased, breached their duties. 24. Upon information and belief, the employees of Defendant Omega Protein relied upon Defendants ACE American and ESIS to conduct safety inspections of the machinery at the Omega Protein Moss Point facility.

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 8 of 13

25. Defendants ACE American and ESIS are liable to the Plaintiffs for the aforementioned acts, and are liable for the following acts which conduct caused or contributed to cause the wrongful death of decedent, Christopher A. Hebert and the resulting injuries and damages suffered by the Plaintiffs: a. Intentionally, negligently and/or grossly negligently failed to exercise reasonable care to protect Christopher A. Hebert; b. Intentionally, negligently and/or grossly negligently increased the risk of injury and death to Christopher A. Hebert because of the failure to inspect the machinery; c. Intentionally, negligently and/or grossly negligently failed to inspect machinery in a manner designed to protect employees, like Christopher A. Hebert, deceased; d. Intentionally, negligently and/or grossly negligently failed to advise Omega Protein of the unreasonable dangerous conditions; e. Intentionally, negligently and/or grossly negligently failed to make and implement safety rules and require installation of safety equipment; f. Intentionally, negligently and/or grossly negligently failed to conduct follow-up inspections to make certain that the safety rules and safety equipment were in place.

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 9 of 13

COUNT III: ACE AMERICAN AND ESIS BREACHED THEIR DUTY TO IMPLEMENT SAFETY RULES 26. By reference, each of the preceding paragraphs are adopted and incorporated herein. 27. Upon information and belief, Defendant ACE American and ESIS through its contract(s) and/or policy(s) of insurance, undertook the duty to implement safety rule regarding the operation of the machinery of Defendant Omega Protein. Defendants ACE American and ESIS undertook the duty to render services to Omega Protein which ACE American and ESIS recognized as necessary for the protection of the employees of Omega Protein, like Christopher A. Hebert, deceased. Defendants ACE American and ESIS willfully, intentionally and with negligence and gross negligence evidencing careless disregard for the employees, like Christopher A. Hebert, deceased, breached their duties. 28. Upon information and belief, the employees of Defendant Omega Protein relied upon Defendants ACE American and ESIS to implement safety rules for the operation of the machinery at the Omega Protein Moss Point facility. 29. Defendants ACE American and ESIS are liable to the Plaintiffs for the aforementioned acts, and are liable for the following acts which conduct caused or contributed to cause the wrongful death of decedent, Christopher A. Hebert and the resulting injuries and damages suffered by the Plaintiffs: a. Intentionally, negligently and/or grossly negligently failed to exercise reasonable care to protect Christopher A. Hebert; b. Intentionally, negligently and/or grossly negligently increased the risk of injury and death to Christopher A. Hebert because of the failure to inspect the machinery;

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 10 of 13

c.

Intentionally, negligently and/or grossly negligently failed to implement machinery lockout safety rules designed to protect employees, like Christopher A. Hebert;

d.

Intentionally, negligently and/or grossly negligently failed to advise Omega Protein of the unreasonable dangerous conditions;

e.

Intentionally, negligently and/or grossly negligently failed to make and implement safety rules and require installation of safety equipment;

f.

Intentionally, negligently and/or grossly negligently failed to conduct follow-up inspections to make certain that the safety rules and safety equipment were in place.

COUNT IV: ACE AMERICAN AND ESIS BREACHED THEIR CONTRACT(S) TO THE DETRIMENT OF INTENDED BENEFICIARY, CHRISTOPHER A. HEBERT, DECEASED 30. By reference, each of the preceding paragraphs are adopted and incorporated herein. 31. Upon information and belief, Defendant ACE American and ESIS through its contract(s) and/or policy(s) of insurance, undertook the duty to inspect and implement safety rules regarding the operation of the machinery of Defendant Omega Protein. The intended beneficiaries of these contractual duties were the employees of Omega Protein, like Christopher A. Hebert, deceased. Defendants ACE American and ESIS willfully, intentionally and with negligence and gross negligence evidencing careless disregard breached their contract(s) and/or policy(s) of insurance to the determent of Christopher A. Hebert, deceased.

10

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 11 of 13

32. Defendants ACE American and ESIS are liable to the Plaintiffs for the aforementioned breach of contract, and are liable for the following acts which conduct caused or contributed to cause the wrongful death of decedent, Christopher A. Hebert and the resulting injuries and damages suffered by the Plaintiffs: a. Intentionally, negligently and/or grossly negligently failed to exercise reasonable care to protect Christopher A. Hebert, deceased; b. Intentionally, negligently and/or grossly negligently increased the risk of injury and death to Christopher A. Hebert because of their breach of contract. DAMAGES 33. By reference, each of the preceding paragraphs are adopted and made part of the following as fully incorporated herein. 34. As a direct and proximate result of the above intentional misconduct of Defendant Omega Protein; all acts and omissions alleged against Defendants ACE American and ESIS; and the resulting wrongful death of Christopher A. Hebert deceased, Plaintiffs seek recovery for damages pursuant to Mississippi Code Annotated 11-7-13, as follows: a. b. c. d. Funeral and burial expenses of the Decedent; The value of loss of support and services of Christopher A. Hebert, deceased; Present cash value of the loss of earnings of Christopher A. Hebert, deceased; Loss of love, support, affection, consortium, society, and companionship of decedent suffered by the Plaintiffs; e. Loss of support and earnings, and loss of future wage earning capacity, that Plaintiffs could expect from Christopher A. Hebert, deceased, during his lifetime;

11

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 12 of 13

f.

Damages for the conscious pain, suffering, and mental stress and anxiety that Christopher A. Hebert, deceased, experienced as a result of his fatal injury;

g.

Loss of love of life, and loss of hedonic value of life that Christopher A. Hebert, deceased, would have enjoyed during her life;

h.

Plaintiffs' loss of enjoyment of life and loss of hedonic value of life as a result of the loss of Christopher A. Hebert, deceased;

i. j.

Present net cash value of life expectancy of Christopher A. Hebert, deceased, and Punitive damages.

35. As a result of the Defendants' actions and behavior, as set forth in each of the preceding paragraphs, Plaintiffs are entitled to the following damages: a. b. c. d. e. f. g. h. Any and all damages set forth in the preceding paragraphs; Compensatory Damages; Actual Damages; Punitive Damages; Attorneys' fees and litigation costs; Pre-judgment interest; Post-judgment interest; and Any other damages deemed allowable by this Court.

WHEREFORE, PREMISE CONSIDERED, Plaintiffs pray their Civil Complaint be received and filed, and that upon a trial by Jury of this cause, judgment be entered against the Defendants, and each of them, for any and all actual, compensatory, and punitive damages to which Plaintiffs are entitled, in an amount to be determined by the Jury. Plaintiffs further pray they be awarded pre-judgment interest and post-judgment interest in such an amount as is determined by this

12

MM

Case l:13-cv-00107-HSO-RHW Document 1 Filed 04/05/13 Page 13 of 13

Court; any and all fees and costs of litigation; and all such other relief to which she may be entitled. Respectfully submitted, this the S _ a a y of April, 2013. CYNTHIA R. HEBERT, INDIVIDUALLY; AND AS THE PERSONAL REPRESENTATIVE AND MOTHER OF CHRISTOPHER ALLEN HEBERT, DECEASED; AND ON BEHALF OF HIS RIGHTFUL BENEFICIARIES AT LAW

VID N. HARRIS/JR. (M$m 100790) Clyde H. Gunn, III, (MSB #5074) Christopher C. Van Cleave, (MSB #10796) W. Corban Gunn, (MSB #101752) David N. Harris, Jr., (MSB #100790) CORBAN-GUNN-VAN CLEAVE LAW FIRM P.O. Drawer 1916 Biloxi, Mississippi 39533 Telephone: (228) 432-7826 Facsimile: (228) 456-0998

13