Tarlton v. Exxon
| Decision Date | 27 September 1982 |
| Docket Number | No. 80-3478,80-3478 |
| Citation | 688 F.2d 973 |
| Parties | David R. TARLTON, Plaintiff-Appellant, v. EXXON, Defendant and Third-Party Plaintiff-Appellee, DIAMOND M DRILLING, Defendant and Third-Party Plaintiff-Appellant-Appellee, v. GOLDEN MEADOWS ENTERPRISES, INC., and Eserman Offshore Services, Third-Party Defendants-Appellants, v. COASTAL BOAT OPERATORS, Third-Party Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Randolph J. Waits, AndrEe J. Mouledoux, New Orleans, La., for Golden Meadows Enterprises and Eserman Offshore Services.
Lawrence D. Wiedemann, Stanley J. Jacobs, New Orleans, La., for Tarlton.
Philip E. Henderson, Houma, La., for Diamond M. Drilling.
E. Burt Harris, Rene J. Mouledoux, William B. Matthews, Jr., New Orleans, La., for Exxon.
A. Wendel Stout, III, Christopher Tompkins, New Orleans, La., for Coastal Boat Operators.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before POLITZ and RANDALL, Circuit Judges*.
David Tarlton was injured while serving as the captain of the M/V BECT I, a vessel owned by Eserman Offshore Services, chartered to Exxon and operated by Golden Meadows Enterprises, Inc. The BECT I was used to service offshore platforms. On the day of Tarlton's accident, it delivered food supplies to an Exxon platform, on which Diamond M Drilling Company conducted drilling operations.
After the food box was off-loaded, a Diamond M employee asked Tarlton to transport the empty food box, a few passengers, and "some other small things" to shore. Tarlton agreed. At the time, seas were running six to eight feet. Notwithstanding the substantial seas, the platform crane operator, an employee of Diamond M, loaded tubular drill collars onto the deck of the BECT I. Tarlton was not aware the "small things" were drill collars until after they were placed aboard. It was imperative that the drill collars, which were rolling about the deck, be secured. While attempting to do so, Tarlton was injured. During this unfortunate scenario, late in the evening, Exxon's platform representative was not on the platform deck; he was asleep.
Tarlton initially filed a seaman's complaint against Diamond M and Exxon, later amending to add Eserman, Golden Meadows and Coastal Boat Operators (the company which brokered the BECT I to Exxon) as additional defendants. Tarlton also alleged the unseaworthiness of the BECT I and sought maintenance and cure in his claim.
Eserman and Golden Meadows cross-claimed against Exxon and Diamond M for reimbursement of sums paid Tarlton for maintenance and cure, sums in fact paid by American Home Assurance Company. Exxon cross-claimed against Golden Meadows, Coastal, and Eserman for indemnification and attorneys' fees pursuant to contracts extant between them. Coastal cross-claimed against Golden Meadows and Eserman for attorneys' fees and costs. As the parties went to trial, Exxon and Diamond M agreed that Exxon would indemnify Diamond M if "a final judgment, after completion of all post-trial motions, appeals, etc. is entered, finding that the plaintiff's alleged injuries were proximately caused by the joint negligence of Diamond and Exxon." 1
The case was tried to a jury, which returned a special verdict finding Diamond M and Exxon liable to Tarlton, with fault percentages of 95% and 5%, respectively. Coastal, Eserman, and Golden Meadows were found free of fault and the BECT I was found seaworthy. The jury awarded Tarlton $450,000 in damages and fixed "10-11-79" as the date when maximum cure was reached, thus setting the basis for the maintenance and cure award.
Ruling on the various cross-claims, the district court rejected Eserman's and Golden Meadows' demand for reimbursement of maintenance and cure payments from Exxon and Diamond M, finding that American Home Assurance Company had paid these sums and had specifically waived its subrogation rights. 2 The court granted Exxon's claim against Golden Meadows and Eserman for attorneys' fees and costs and granted Coastal's claim against Golden Meadows and Eserman for attorneys' fees and costs.
Exxon moved for judgment notwithstanding the verdict and sought a remittitur. The trial judge granted Exxon's motion for judgment n.o.v. Additionally, on its own motion, the trial judge modified the judgment against Diamond M by ordering "that a new trial on the issue of damages be held unless plaintiff remits $75,000.00 of the jury award."
Four issues are posited for appellate review: (1) whether the trial court erred in granting Exxon's motion for judgment n.o.v.; (2) whether the trial court erred in granting a motion for a new trial on the amount of damages conditional on the plaintiff's acceptance of a $75,000 remittitur in light of Rule 59(d) of the Federal Rules of Civil Procedure; (3) whether error was committed in awarding Exxon and Coastal costs and attorneys' fees against Golden Meadows and Eserman; and (4) whether the trial judge erred in instructing the jury to consider inflation as a factor in assessing Tarlton's award. Our review of the record compels the conclusion that the district court erred in entering the remittitur order and in granting Exxon's and Coastal's claims for costs and attorneys' fees against Golden Meadows and Eserman. Accordingly, we affirm in part, vacate in part, and reverse in part.
The oft-cited decision in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc) articulates the rubric in this circuit for the grant or denial of a judgment n.o.v. In essence, a mere scintilla of evidence is not sufficient to sustain a jury determination; "(t)here must be a conflict in substantial evidence to create a jury question." Id. at 375. See, e.g., Hagans v. Oliver Machinery Co., 576 F.2d 97 (5th Cir. 1978). In the process of evaluating the motion, the district court is obliged to review the evidence in the light most favorable to the jury's verdict. This was done in the case at bar. Having walked the same path as the trial judge, we reach the same conclusion.
The record reflects that while the Exxon representative was on the platform at the time of the accident he was asleep. He was not aware of the unloading of the grocery box, that Tarlton had been requested to return with the emptied box, or that Tarlton had been asked to transport passengers and other small items. Nor was he alerted to the fact that the Diamond M crane operator might surreptitiously place the drill collars on the deck of the vessel without first consulting Captain Tarlton. The Exxon representative did not order the loading of the drill collars; he did not authorize the loading; and he was in no way forewarned. The only basis suggested for saddling Exxon with negligence is that it sanctioned the type of conduct that occurred the night of the accident, i.e., loading in rough seas.
Diamond M maintains that Exxon representatives previously had condoned loading vessels in six to eight foot seas, a practice cited as negligent. 3 Although this proposition bears some surface appeal, it fades upon closer examination. As we held in Hebron v. Union Oil Co. of Calif., 634 F.2d 245 (5th Cir. 1981), a platform owner is not negligent for dispatching a supply vessel in six to eight foot seas, seas admittedly rough but not necessarily dangerous for loading or unloading. Such activity is not at all unusual at the myriad offshore platforms in the gulf.
Our review of the testimony convinces us beyond peradventure that the cause of the accident was the decision by the Diamond M crane operator to "sneak" the drill collars on board the BECT I. The crane operator admitted he had to act stealthily because he believed Captain Tarlton would not have allowed him to load the tubular drill collars on the vessel. In view of this testimony and the other evidence, we are in total agreement with the district judge that "(i)t was the decision to load the drill collars onto plaintiff's vessel which was the negligence which caused plaintiff's injury." The judgment n.o.v. was properly granted.
Tarlton challenges the remittitur on two grounds. We discern no merit in the first contention that the granting of a new trial, to be avoided only by acceptance of the remittitur, was an unconstitutional act, violative of the seventh amendment. To the contrary, it is now firmly established that the remittitur practice is not in conflict with the seventh amendment. See, e.g., Lowe v. General Motors Corp., 624 F.2d 1373 (5th Cir. 1980); Shore v. Parklane Hosiery Co., Inc., 565 F.2d 815 (2d Cir. 1977), aff'd, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Bonura v. Sea Land Serv., Inc., 505 F.2d 665 (5th Cir. 1974); Gorsalitz v. Olin Mathieson Chem. Corp., 429 F.2d 1033 (5th Cir. 1970). See also Dimick v. Scheidt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935).
Tarlton's second attack on the remittitur presents a serious issue, having at its core the question of the proper application of Rule 59(d) of the Federal Rules of Civil Procedure which prescribes:
Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.
On March 21, 1980, the jury returned a verdict in favor of Tarlton against Diamond M and Exxon in the amount of $450,000. The jury found Diamond M 95% at fault and Exxon 5% at fault. Demands against all other defendants were rejected.
Based on this verdict, the district judge entered judgment on the main demand on March 27, 1980, casting Diamond M for $427,500 and Exxon for $22,500. Within 10 days, on April 7, 1980, Exxon moved for a judgment n.o.v., a new...
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