Seaman's wife can't seek loss of consortium damages, AEP River Operations says

POINT PLEASANT – The wife of a deckhand who claims he was injured on the Ohio River may not make a claim for loss of consortium, AEP River operations.

The company made its argument for dismissal of the claim on Aug. 27, six months after Robert and Melissa Wilson filed a lawsuit against the company in Mason County Circuit Court. Robert is suing over back injuries he says he incurred when a towboat jerked.

“Plaintiff Melissa Wilson’s claim for loss of consortium fails to state a justiciable claim,” the memorandum in support of the motion to dismiss says.

“Because loss of consortium is not recoverable, as a matter of law, under the Jones Act and/or general maritime law, Count IV of Plaintiffs’ complaint seeking loss of consortium damages fails to state a claim upon which relief may be granted, warranting dismissal of the same.”

AEP River Operations is represented by Todd M. Powers of Schroeder Maundrell Barbiere & Powers in Mason, Ohio.

The Jones Act incorporates provisions of the Federal Employers Liability Act, and the U.S. Supreme Court ruled in 1913 that Congress must have intended to place FELA’s limitations on the types of damages available on Jones Act claims, Powers wrote.

“When Congress enacted the Jones Act and incorporated FELA, it was aware of its limitation of nonpecuniary damages and as a result, the Jones Act limits a seaman’s recovery for injury to pecuniary losses and precludes any recovery for nonpecuniary losses, such as loss of society,” Powers wrote.

Robert Wilson says he suffered severe back injuries on Jan. 2 when the defendant’s towboat captain caused the vessel to move suddenly, without warning to the plaintiff.

Wilson was working on an ice-covered barge holding a line attached to the towboat, and the sudden movement caused him to jerk and spin around, seriously injuring his lower back, he says. He claims the defendant also failed to allow him to seek immediate medical care, according to the complaint.

He and his wife are seeking an undetermined amount of relief.

The Wilsons are being represented by Pittsburgh attorney Frederick B. Goldsmith of Goldsmith & Ogrodowski.

A hearing on the motion to dismiss will be held on Dec. 6.

Donald B. O’Dell, an attorney in Huntington, has been selected as mediator for the case.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.