Laird v. Shell Oil Co., 83-3710

• Decision Date: 12 September 1985
• Docket Number: No. 83-3710,83-3710
• Citation: 770 F.2d 508
• Parties: Stanley Wayne LAIRD, Plaintiff-Appellant, and Insurance Company of North America, Intervenor-Appellant, v. SHELL OIL COMPANY, Defendant-Third Party Plaintiff-Appellee-Appellant, v. L & L SANDBLASTING, INC., Intervenor-Third Party Defendant-Appellee-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 508

770 F.2d 508

Stanley Wayne LAIRD, Plaintiff-Appellant, and Insurance Company of North America, Intervenor-Appellant, v. SHELL OIL COMPANY, Defendant-Third Party Plaintiff-Appellee-Appellant, v. L & L SANDBLASTING, INC., Intervenor-Third Party

Defendant-Appellee-Appellant.

No. 83-3710.

United States Court of Appeals, Fifth Circuit.

Sept. 12, 1985.

Due, Dodson, DeGravelles & Robinson, Chester John Casey, Baton Rouge, La., for Laird.

Adams & Reese, James E. Blazek, William B. Gaudet, Arthur Crais, Jr., New Orleans, La., for Shell.

Young, McMahon & Levert, George J. Richaud, New Orleans, La., for Ins. Co. of North America.

R.K. Christovich, Thomas C. Cowan, New Orleans, La., for L & L Sandblasting.

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

Before RUBIN and REAVLEY, Circuit Judges, and SEAR, ^* District Judge.

ALVIN B. RUBIN, Circuit Judge:

Stanley Wayne Laird, a painter-sandblaster employed by L & L Sandblasting, Inc., was injured while working on a permanent offshore production platform owned by Shell Oil Company. Shell had contracted with L & L to repaint the platform. There was evidence that, while Laird was sitting on a bosun's chair engaged in cleaning work, the sisal rope supporting the suspended chair broke. Laird sued Shell, the platform owner, for negligence. Shell filed a third party claim against L & L for indemnity under the contract between them.

In answer to special interrogatories the jury found that Shell was not negligent and on this verdict judgment was entered for the defendant. The district court held that, under the contract between Shell and L & L, L & L did not owe indemnity to Shell and rejected Shell's claims for costs of defense. Laird appeals asserting that the district court erred in refusing to instruct the jury that it might consider a Mr. White, Laird's supervisor and an L & L employee, Shell's borrowed servant and attribute his negligence to Shell. Shell seeks to have the liability judgment affirmed but to have the indemnity decision reversed.

We hold that the borrowed-servant issue was not raised in the district court and that the court, on the record before it at the time, did not err in refusing to give such a jury instruction. We also hold that, under Louisiana law, as interpreted by us in Sullen v. Missouri Pacific Railroad Company, ¹ L & L did not owe Shell indemnity for the cost of Shell's successful defense because the complaint alleged no facts that, if proved, would have established liability of L & L.

I.

While Laird did request a borrowed-servant jury instruction at the conclusion of the trial, the theory that Shell was vicariously liable for the acts of L & L's employees had not previously been relied upon either in the pleadings, the pretrial order, or at trial.

In the fourteen page pretrial order, only two statements even hint at a borrowed-servant claim. The order states that one of the contested issues of law is "whether Mr. Gene White [the L & L supervisor] was a delegated supervisory employee of Shell Oil Company at the time of and before the accident." The plaintiff's list of possible witnesses includes "Gene White ... as representative of Shell Oil Company and as representative of L & L Sandblasting." In the plaintiff's pretrial order summary of claims, however, there is no mention of a borrowed-servant or respondeat superior claim.

At the trial, as he had done in the pleadings and pretrial order, Laird focused solely on Shell's direct negligence and strict liability. These were the issues pursued in his counsel's opening statement, in which his counsel urged strenuously that Shell was at fault in failing to appoint a painting inspector. The theory now advanced, that Shell had appointed White, the L & L supervisor, as its own inspector and had therefore made White its borrowed employee, took coherent shape only in this appeal. Similarly in closing argument, Laird's counsel argued that Shell had the duty to appoint an inspector and did not do so: The L & L supervisor didn't know enough to do the job and "the paint inspector wasn't there" to tell him what to do and what not to do.

Laird explains that his tardy interest in the borrowed-servant theory was brought about by a "major event" that occurred during the trial. An operations foreman for Shell stated, contrary to his deposition testimony, that L & L's supervisor had been appointed the Shell Oil paint inspector on the job, indicating that the L & L supervisor had thus become Shell's borrowed employee. This contention of surprise is, to some extent, inconsistent with Laird's position that he had already raised and relied upon the borrowed-servant argument. Laird's counsel, moreover, expressed no surprise, did not seek to enlarge his pleadings, and did not seek to expand the issues stated in the pretrial order. He did not invoke Rule 15(b) of the Federal Rules of Civil Procedure, which affords recognition to issues actually tried with the express or implied consent of the parties but not raised by the pleadings, and he did not, even after trial, seek to amend the pleadings or to assert that the issue had been tried by consent. The jury charge appears to have been offered only as an afterthought.

The trial court has no duty to give the jury an exegesis of legal principles that might enable a plaintiff to recover or to instruct the jury on issues not fairly raised by the pleadings, the pretrial order, or the course of the trial. ² "[I]t has no obligation 'to introduce issues inferentially suggested by incidental evidence in the record.' " ³ Construed most favorably to Laird, the record contains no more than an infrequent and inferential reference to a possible claim under a borrowed-servant/respondeat superior theory.

Not having raised the borrowed-servant issue in the trial court, Laird is barred from raising it on appeal. ⁴ The tardy injection of this issue at the appellate stage raises a considerable number of factual issues that should and could have been developed in the trial court. Whether there was an agreement between Shell and L & L that White, the L & L supervisor, was to be Shell's "borrowed servant," what work White performed, which company had control over him, whether White was acting within the scope of his duties as a Shell employee, and whether White's actions were the proximate cause of Laird's injuries are all issues left unexplored at the trial level. Shell cannot be faulted for failure to adduce evidence concerning what was at most a phantom issue that flitted across the pretrial order. As we stated in Volkswagen of America, Inc. v. Robertson, ⁵ if "consideration of the newly raised issue in the trial court would have resulted in additional facts being developed there, the rationale for the application of the general rules applies, and the issue will not be considered by the appellate court."

The district court based its refusal to give the requested jury instruction on the lack of evidentiary support for the instruction on the merits, not on the belated raising of the issue. However, when the judgment of a district court is correct, it may be affirmed for reasons not given by the court and not advanced to it. ⁶

II.

The agreement between Shell and L & L contained a provision requiring L & L to

defend and indemnify Shell ... against all losses, claims, suits, liability, and expense arising out of injury or death of persons (including employees of Shell, [L & L] or any subcontractor) ... resulting from or in connection with the performance of this order and not caused solely by Shell's negligence without any contributory negligence or fault of [L & L] or any subcontractor or their employees or agents.

This court has recently recognized a new rule for interpreting such clauses when incorporated in contracts governed by Louisiana law. In Sullen v. Missouri Pacific Railroad Company, ⁷ w...