Arsement v. Spinnaker Exploration Co., LLC

• Decision Date: 09 February 2005
• Docket Number: No. 04-40230.,04-40230.
• Parties: Dalton ARSEMENT, Jr., et al., Plaintiffs, Dalton Arsement, Jr., Plaintiff-Appellee, v. SPINNAKER EXPLORATION COMPANY, LLC, et al., Defendants, Spinnaker Exploration Company, LLC; Joe Nowiczewski, Individually, and doing business as Nova Consulting Services; White Wing Consultants, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

400 F.3d 238

Dalton ARSEMENT, Jr., et al., Plaintiffs, Dalton Arsement, Jr., Plaintiff-Appellee, v. SPINNAKER EXPLORATION COMPANY, LLC, et al., Defendants Spinnaker Exploration Company, LLC; Joe Nowiczewski, Individually, and doing business as Nova Consulting Services; White Wing Consultants, Defendants-Appellants.

No. 04-40230.

United States Court of Appeals, Fifth Circuit.

February 9, 2005.

COPYRIGHT MATERIAL OMITTED

Timothy F. Lee (argued), Paul William Smith, Ware, Jackson, Lee & Chambers, Houston, TX, Craig Alan Davis, Law Office of Craig Davis, Lafayette, LA, for Plaintiff-Appellee.

A. Glenn Diddel, III (argued), The Diddel Law Firm, Christopher Tramonte, Tramonte & Associates, Houston, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Southern District of Texas.

Before BARKSDALE, GARZA and DEMOSS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Spinnaker Exploration Company, Joe Nowiczewski, individually and doing business as Nova Consulting Services, and White Wing Consultants appeal the denial of their motions for judgment as a matter of law (JMOL) and new trial. Those motions contest the jury verdict in favor of Dalton Arsement's claims arising under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349 (OCSLA) (applying Texas law), concerning his being injured on an offshore drilling platform while employed by one of Spinnaker's contractors, Production Hook-Up Services (PHS). Arsement did not respond to the post-trial motions, which were denied only three days after being filed. In the denial-order, the district court improperly prohibited additional motions being filed in district court.

For JMOL: Spinnaker, the platform owner, claims Arsement failed to prove liability against it under Chapter 95 of the Texas Civil Practice and Remedies Code (Chapter 95) (protecting property owners from liability to employees of contractors constructing improvements to owners' real property); two of Spinnaker's contractors, White Wing and Nova, claim Arsement did not make the requisite showing of control for common-law liability under Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985); and Nowiczewski claims no liability can attach to him individually (unless Nova, his sole proprietorship, is liable). Concerning JMOL for Spinnaker, a key issue is whether, in its post-trial motion, it could rely for the first time on Chapter 95.

For new trial, defendants claim: the verdict was against the great weight of the evidence; and the district court erred by refusing a requested sole-cause jury instruction as to the liability of Arsement's employer, PHS.

JMOL should have been granted to defendants. Accordingly, we need not reach the new trial claims. The district court is again directed not to prohibit motions being filed in district court after it rules on post-trial motions. VACATED and RENDERED.

I.

When injured, Arsement was employed as a welder by PHS, an independent contractor engaged by Spinnaker to refurbish an oil and gas production platform it owned and operated in the Gulf of Mexico. Spinnaker engaged Nova to identify needed refurbishments on the platform and ensure owner-contractor contract compliance for the installation of various pre-fabricated products on the platform. Nova, in turn, engaged White Wing Consultants to inspect the refurbishment project for safety and contract compliance.

Arsement was injured on 2 November 2000, only his second day on the platform, during installation on the platform of a sump deck, a pre-fabricated structure. The sump deck, measuring approximately 20 by 10-15 feet and weighing approximately six tons, was to be installed as the lowest of the platform's three decks, below the production (middle) and main (top) decks. The sump deck had been brought to the platform's location near the Texas coastline and placed on a jack-up vessel along side the platform. Two different plans were devised to install the sump deck.

"Plan A" utilized the jack-up vessel. It was to take the sump deck under the platform and, using the jack-up vessel's crane, lift the sump deck to the desired height. Once the sump deck was at the ten-plus level (the lowest tier of the platform below the production deck), workers would pull it into place with pneumatic winches (air-tuggers) and weld it on the platform.

Under "Plan B", the sump deck would instead be lifted, using the jack-up vessel's crane, from the jack-up vessel to the main (top) deck of the platform. The main deck's crane would then be used to lower the sump deck along side the platform to the ten-plus level (the lift). Air tuggers attached to, and hanging below, the production (middle) deck would then pull the sump deck under the production deck and into place for welding.

Plan B was selected. Arsement was designated by Menard, his PHS supervisor, to be the signalman for the lift (again, on only his second day on the platform). Menard was not a certified crane operator. For the events leading to his injury, Arsement gave the following testimony.

Menard operated the crane on the main deck, with Arsement signaling to Menard from a stairwell on the outside of the platform, below the production deck. Once the sump deck was lowered to the production (middle) deck level, Arsement attached the air tuggers to the sump deck and returned to his signaling position below the production deck. After the sump deck had been lowered past his signaling position, however, several men moved to stand above him on the stairwell, inadvertently blocking Arsement's view of Menard at the crane controls. (On the other hand, Menard testified Arsement was never out of his line of sight.) Arsement asked the men to move, and they did move out of the way for a short time, but then moved back in his line of sight. When the men moved back, they began to "yell[] about the [emergency shutdown device (ESD)] line", which was near Arsement's position and which, if ruptured, would shut down the entire platform. These warnings, given by men in a superior vantage point to the ESD line, made Arsement worry the 500-pound block attached to the crane's line to steady its load (and below which the sump deck was attached) was about to hit and sever the ESD line. Arsement moved up several steps to get a better view. From this position, to avoid the ESD line being ruptured by the block, Arsement attempted to steady the block; to do so, he lifted his foot above the handrail and used his foot to push the block out of the way.

Once Arsement's foot was on the block, however, the crane stopped lowering without Arsement's instruction. (On the other hand, Menard testified he never stopped the crane.) Arsement felt he could not move his foot without causing the block to swing out and, when it swung back, perhaps destroy the ESD line and handrail. Therefore, Arsement kept his foot on the block, steadying it; he planned to signal the crane to start lowering again and then quickly remove his foot. The crane began lowering the deck again unexpectedly, however, without signal from Arsement, so that he did not have time to react before his foot was caught in a pinch point between the crane block and the handrail and was injured. Except for the injury to Arsement, the lift was completed without incident.

As all parties agree, this is a Texas situs OCLSA action, applying Texas law. See Fruge v. Parker Drilling Co., 337 F.3d 558, 560 (5th Cir.2003), cert. denied, 540 U.S. 1161, 124 S.Ct. 1171, 157 L.Ed.2d 1205 (2004) ("... OCSLA adopts the law of the adjacent state...."). Arsement sued Spinnaker, White Wing, and three Nova entities (Nova Ventures, LLC; Nova Technological Services, Ltd.; and Joe Nowiczweski, individually and doing business as Nova Consulting Services (a sole proprietorship)). Pre-trial, the claims against two of the three Nova entities were dismissed without prejudice, with the only remaining claims as to Nova being against Nowiczweski, individually and doing business as Nova Consulting Services.

At the three-day trial, Arsement testified; had expert testimony that Plan A was safer than Plan B; and called as witnesses, among others, Brown for Spinnaker, Mason for White Wing, Degroat (by deposition) for Nova, and Menard (by deposition) for PHS. Concerning his injury, Arsement presented evidence, inter alia, that it caused a nerve damage condition called reflex sympathetic dystrophy, a permanent impairment.

At the close of Arsement's case in chief, each defendant moved for JMOL under Federal Rule of Civil Procedure 50(a)(1). The motions were denied. Defendants presented one witness, who testified about the nature of Arsement's injury.

During the charge conference, the district court refused Defendants' requested sole proximate cause instruction, which attributed all causation to PHS. Defendants renewed their JMOL motions, pursuant to Rule 50(a)(2), after the jury began deliberations. The motions were again denied.

In its verdict, the jury apportioned seven percent fault to Arsement, with the remainder split equally between Spinnaker, Nowiczweski (individually and doing business as Nova, collectively), and White Wing; therefore, each was found 31 percent liable. After discounting the judgment for Arsement's fault, the court entered a verdict in Arsement's favor for, inter alia, approximately $2.5 million. In a separate order responding to Defendants' motion for remittitur, the district court confirmed the apportionment of liability but ordered a new trial unless Arsement agreed to accept an award of, inter alia, approximately $1.7 million. Arsement did so. The district court entered final judgment on 27 January 2004.

On 10 February 2004, defendants moved for JMOL pursuant to Rule 50(b). In doing so, Spinnaker invoked Chapter 95 for the first time, claiming Arsement did not present sufficient evidence for liability under the Chapter. Nova, Nowiczewski, and White Wing renewed their contentions that Arsement did not prove common-law...