711 F.2d 602 (5th Cir. 1983), 81-3468, Wiley v. Offshore Painting Contractors, Inc.

Docket Nº:81-3468, 81-3469 and 81-3470.
Citation:711 F.2d 602
Party Name:Michael E. WILEY, et al., Plaintiffs-Appellees, v. OFFSHORE PAINTING CONTRACTORS, INC., Defendant-Appellee, v. CHEVRON U.S.A., INC., Defendant-Appellant. CHEVRON U.S.A., INC., Third Party Plaintiff-Appellant, v. The CONTINENTAL INSURANCE COMPANY and St. Paul Fire & Marine Insurance Co., Third Party Defendants-Appellees. In the Matter of the Complai
Case Date:July 25, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 602

711 F.2d 602 (5th Cir. 1983)

Michael E. WILEY, et al., Plaintiffs-Appellees,




CHEVRON U.S.A., INC., Defendant-Appellant.

CHEVRON U.S.A., INC., Third Party Plaintiff-Appellant,



Insurance Co., Third Party Defendants-Appellees.

In the Matter of the Complaint of OFFSHORE PAINTING


For Exoneration From or Limitation of

Liability, Petitioner-Appellee,


CHEVRON U.S.A., INC., Claimant-Appellant.

B.R. HERRINGTON ENTERPRISES, INC. and First State Insurance

Company, Plaintiffs-Appellees,




CHEVRON U.S.A., INC., Defendant-Appellant,



Insurance Company, Third Party Defendants-Appellees.

Nos. 81-3468, 81-3469 and 81-3470.

United States Court of Appeals, Fifth Circuit

July 25, 1983

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[Copyrighted Material Omitted]

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McLoughlin, Barranger, Provosty & Melancon, Lloyd C. Melancon, New Orleans, La., for Chevron.

Michael X. St. Martin, Houma, La., for Wiley.

Edgar F. Barnett, Lake Charles, La., for Offshore.

Philip E. Henderson, Houma, La., for Uninsured Interest of Offshore.

David R. Normann, New Orleans, La., for Continental.

Mat M. Gray, III, New Orleans, La., for St. Paul Fire & Marine.

J. Wendel Fusilier, Ville Platte, La., for Fontenot.

Frank E. Lamothe, III, New Orleans, La., for Windham.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before RANDALL and HIGGINBOTHAM, Circuit Judges, and BUCHMEYER [*], District Judge.

BUCHMEYER, District Judge:

This is a personal injury case involving a seaman and two painters who were severely injured when an explosion occurred at an offshore oil and gas production platform owned by Chevron U.S.A. Inc. ("Chevron").

Chevron appeals from judgments awarding substantial damages (over $3 million) to these three individuals. It raises these issues: that the trial court abused its discretion in denying Chevron's motion for continuance because one of the plaintiffs, David Fontenot, was not present at the trial; and, that the trial court erred in refusing to grant Chevron indemnity or, in the alternative, contribution from the employer of the three individuals, Offshore Painting Contractors, Inc. ("Offshore Painting") because of the alleged negligence of Offshore Painting and because of an indemnity provision in the written agreement between Offshore and Chevron.

In addition, Chevron appeals from a judgment awarding $160,000 in damages to Continental Insurance Company ("Continental") as reimbursement for the payment by Continental for the loss of Offshore's paint boat which was destroyed by the explosion. Here, Chevron argues that the trial court erred because the insurance policies which were issued by Continental to Offshore Painting--and under which this amount was paid--named Chevron as an additional assured and waived all rights of subrogation against Chevron.

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The issues raised by Chevron are without merit. Indeed, two of them are frivolous because they were never presented to the trial court. We affirm.

Facts and Procedural History

Chevron contracted for Offshore Painting to perform sandblasting and painting work on a number of permanent offshore platforms which were owned and operated by Chevron in the production of oil and gas off the coast of Louisiana. 1 One of the two vessels which Offshore Painting used to transport its employees and their equipment to these offshore platforms was a three-year old paint boat, the M/V SANDRA P.

On June 14, 1978, the day of the explosion, the SANDRA P arrived at Chevron's Platform 181-A with a painting crew to continue work which had been in progress for several days. 2 Bobby Windham was the foreman of this painting crew. David Fontenot was a painter in the crew. Michael Wiley, a seaman, was the unlicensed "master" or "captain" of the SANDRA P; this was his first trip to Platform 181-A, which was some twenty miles offshore.

Wiley moored the SANDRA P at the boat dock on the south side of the production platform. Although there were other boat docks on the east and west sides, Wiley chose this one because of the direction of the wind and seas and because the air lines used by the painting crew from the previous day were already hanging off the platform by the south boat dock. 3 After the SANDRA P docked, Windham and Fontenot went aboard the platform to begin work, while Wiley remained on the paint boat to go to sleep.

Fontenot started "spot painting" on top of a large tank, called a "high pressure bulk separator," which was close to the boat dock on the south side of the platform. Attached to this bulk separator was a pressure relief valve which was set so that the contents of the tank would be discharged if the pressure in the bulk separator became too high or too low. The discharge line from the bulk separator ran to the south side of the platform, then made a 90? turn directly downward, so that the end of the discharge line was approximately forty-four feet above the south boat dock (and the SANDRA P).

About noon, the pressure relief valve suddenly broke--there was a loud noise, described by various witnesses as sounding like "a pop-off valve going off," followed by a "rushing noise"--and the gas and other contents of the bulk separator tank were released through the discharge line. The gas was immediately ignited by some unknown source, 4 and the explosion caused a fire which covered the entire south side of the platform. The SANDRA P was also engulfed in flames.

Fontenot fell to the platform deck from the top of the bulk separator tank; Windham slipped and fell to the deck from the catwalk; both were able to escape the fire by jumping from the platform into the water. Wiley awoke to find the SANDRA P in flames but, finally, he was able to run through the fire and dive into the water.

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All three were later rescued by workers on the platform, but each was seriously injured: Wiley suffered burns on 90% of his body; Windham had severe spinal injuries; and Fontenot fractured vertebra in his neck and spine. 5 The SANDRA P was almost totally destroyed.

Wiley filed suit against both Chevron and Offshore Painting, as did Windham. Fontenot filed suit only against Chevron. The claims in the three actions were based upon negligence and strict liability under state law, Articles 2315, 2317 and 2322 of the Louisiana Civil Code, and upon the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. 6 By various motions filed in these suits--and by three other lawsuits: one filed by Offshore Painting, one filed by Continental Insurance, and one filed by B.F. Herrington Enterprises ("Herrington")--these additional claims were made:

(i) Chevron and Offshore Painting sought recovery from each other for indemnity or, in the alternative, for contribution;

(ii) Offshore Painting sought "exoneration from and limitation of liability" as owner of the vessel SANDRA P;

(iii) Chevron sought recovery from Continental on the marine hull and marine P & I insurance policies issued to Offshore Painting--which covered the SANDRA P and which named Chevron as an additional assured; 7

(iv) Continental sought recovery from Chevron for the amounts it had paid, under the insurance policies issued to Offshore Painting, for the loss of the SANDRA P ($160,000) and for the "maintenance and cure" of the plaintiff Wiley ($70,366.19); and

(v) Herrington, the owner of the compressor and other equipment on the SANDRA P, sought recovery from Chevron or Offshore Painting for the loss of these items. 8

In other words, this was "another one of those seagoing donnybrooks in which all generously claim that someone else must bear the burden of amounts paid to a seaman [and two painters] for injuries sustained during a typical off-shore drilling operation in Louisiana shelf waters." Lanasse v. Travelers Ins. Co., 450 F.2d 580, 581 (5th Cir.1971).

These six cases were consolidated for trial. The claims of the three individuals (Wiley, Windham, Fontenot) were submitted to a jury. The remaining issues, including indemnity and contribution, were reserved for decision by the trial court.

Chevron contended at trial--just as it does on appeal--that Michael Wiley was negligent in docking the SANDRA P downwind on the south end of the platform, "directly below the gas discharge lines" from the bulk separator tank, while carrying "a highly inflammable cargo" of paints and solvents. In response, the plaintiffs (and Offshore Painting) presented evidence that Wiley was not negligent: that he chose the south boat dock because of the wind and sea direction and because the air lines were already there; that there was no warning sign at this dock; that Chevron

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employees used it "all the time"; and that Offshore's crews had used this dock without incident on prior occasions. In addition, they contended that the explosion was caused by Chevron's negligence because:

(i) A nut connecting the pressure relief valve was severely corroded. This caused it to break and release the gas through the discharge line. The explosion would not have happened if Chevron had used a stainless steel nut which would not corrode--indeed, certain Chevron documents indicated that stainless steel parts should have been used on the relief valve--or if Chevron had properly inspected and replaced the corroded nut;

(ii) The gas discharge lines from...

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