791 F.2d 1207 (5th Cir. 1986), 85-4060, Fontenot v. Mesa Petroleum Co.

Docket Nº:85-4060.
Citation:791 F.2d 1207
Party Name:Andrew FONTENOT, Plaintiff, v. MESA PETROLEUM CO., Defendant-Third Party Plaintiff-Appellee, Cross-Appellant, Cross-Appellee, v. ROWANDRILL, INC., Defendant-Third Party Plaintiff-Appellee, Cross-Appellant, Cross-Appellee, v. BRISTOW OFFSHORE HELICOPTERS, INC., Third Party Defendant-Appellant, Cross- Appellee.
Case Date:June 13, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1207

791 F.2d 1207 (5th Cir. 1986)

Andrew FONTENOT, Plaintiff,

v.

MESA PETROLEUM CO., Defendant-Third Party

Plaintiff-Appellee, Cross-Appellant, Cross-Appellee,

v.

ROWANDRILL, INC., Defendant-Third Party Plaintiff-Appellee,

Cross-Appellant, Cross-Appellee,

v.

BRISTOW OFFSHORE HELICOPTERS, INC., Third Party

Defendant-Appellant, Cross- Appellee.

No. 85-4060.

United States Court of Appeals, Fifth Circuit

June 13, 1986

Page 1208

[Copyrighted Material Omitted]

Page 1209

Howard Daigle, Jr., Stephen P. Hall, New Orleans, La., for Bristow Offshore Helicopters, Inc.

Edward J. Marquet, Voorhies & Labbe, Michael W. Adley, Juneau, Hill, Judice, Marquet, Hill & Adley, Lafayette, La., for Mesa Petroleum Co.

David A. Hurlburt, Hurlburt & Privat, Lafayette, La., for Rowandrill, Inc.

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

Before BROWN, JOHNSON, and JOLLY, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This case vividly illustrates how, in the complicated offshore drilling environment with its intricate divisions of responsibility and countless contractors and subcontractors, a simple slip-and-fall can turn into a multiparty morass of contribution cross-claims, third- and fourth-party defendants, reciprocal indemnity agreements, and the ever-popular warranties of workmanlike performance. The plaintiff in this litigation has long since settled and departed but the other parties have chosen to remain on the field of battle to contest the appropriate share of the plaintiff's settlement to be borne by each of them. From the cast 1 of rig owner, rig charterer, and helicopter contractor, we have determined that, after all the dust and shouting have subsided,

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responsibility for the plaintiff's award is to be borne primarily by the rig charterer, as provided by the terms of the owner-charterer contract, and also by the helicopter contractor, as provided by the terms of the charterer-helicopter contractor contract.

Onshore Fueling and Offshore Refueling

On the night of March 5, 1980, a helicopter owned by Bristow Offshore Helicopters, Inc. (Bristow) was ferrying men and equipment to Service Equipment and Engineering Company (SEE) Rig No. 8. SEE Rig No. 8 is a fixed platform that was under contract to perform drilling operations off the coast of Louisiana for Mesa Petroleum Company (Mesa). Bristow was providing offshore helicopter transportation services pursuant to a contract with Mesa.

En route to Rig No. 8, the helicopter landed for refueling at the ROWAN-MIDLAND, a semi-submersible drilling rig owned by Rowandrill, Inc., and like SEE Rig No. 8, under contract to Mesa. As a safety precaution, the passengers were told to disembark before the helicopter was refueled. As they disembarked, they were warned that the heliport deck was slippery.

One of the helicopter passengers was Andrew Fontenot, a SEE employee, who was en route to his assigned job duties aboard Rig No. 8. Fontenot had devoted his last hours ashore to playing pool and drinking alcohol, activities generally denied to oilfield workers while offshore. Fontenot was still feeling the effects of the alcohol when the Bristow helicopter landed for refueling at the ROWAN-MIDLAND. When the helicopter passengers disembarked, Fontenot lost his balance on the slippery heliport surface and fell, injuring himself.

A Sea/Airgoing Donnybrook

Fontenot brought suit against Rowandrill and later amended his complaint to add Mesa as a defendant. Rowandrill then asserted a cross-claim for contribution against Mesa, and Mesa responded in kind, seeking contribution from Rowandrill. Much later, Rowandrill asserted a third-party claim against Bristow, seeking contribution, or in the alternative, indemnity. Not wanting to be left out, Mesa also asserted a third-party demand seeking contractual indemnity from Bristow.

Four days before trial, Fontenot settled his claims against Rowandrill and Mesa for $125,000, of which Rowandrill paid $93,750 plus $2,200 in costs, and Mesa paid $31,250 plus $800 in costs. The plaintiff's early exit from the ring only slightly tarnished the card, however, because the various cross-claims and third-party claims of Mesa, Bristow, and Rowandrill remained to be contested. These claims included:

(1) Rowandrill's claim for contractual indemnity from Mesa;

(2) Mesa's claim for contractual indemnity from Rowandrill, based upon an express warranty of workmanlike performance (WWLP);

(3) Mesa's claim for indemnity from Bristow based upon an express indemnity obligation and an implied WWLP;

(4) Rowandrill's claim for indemnity from Bristow, based upon an implied WWLP;

(5) Cross-claims for contribution between Mesa and Rowandrill;

(6) Claims for contribution from Bristow by Mesa and Rowandrill.

The Court Acts

Faced with the unenviable task of refereeing this multiparty donnybrook, the District Court without objection tried the third party actions for contribution and indemnity on depositions, documents, and trial memoranda only, without live testimony or oral argument. In its opinion, the District Court apportioned fault as follows:

Rowandrill 65% Bristow 20% Fontenot 15% ---- Total 100% It found Rowandrill at fault due to the hazardous condition of the heliport, specifically

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the lack of nonskid paint; Fontenot at fault for being intoxicated before boarding the helicopter and failing to exercise due care after being warned of the slippery condition of the heliport; and Bristow at fault for discharging the passengers onto the hazardous heliport during refueling. Based on the finding of Bristow's 20% fault, the District Court held that Rowandrill was entitled to contribution from Bristow. Finding that Mesa was not even potentially liable to the plaintiff, the District Court also held that Mesa could not recover under an indemnity theory any of the money it paid to settle Fontenot's claim.

In addition, the District Court held that

(1) Rowandrill was not entitled to contractual indemnity from Mesa;

(2) Mesa was not entitled to indemnity from Rowandrill for the alleged breach of an express WWLP in the drilling contract;

(3) Mesa was not entitled to receive from Bristow (i) contractual indemnity, nor (ii) indemnity based upon an implied contractual WWLP;

(4) Rowandrill was not entitled to indemnity from Bristow based upon an implied contractual WWLP;

(5) Neither Mesa nor Rowandrill was entitled to tort contribution from the other; and

(6) Mesa was not entitled to tort contribution from Bristow.

The District Court also held open the record for additional evidence on attorney's fees, and, in its final judgment, ordered Bristow to reimburse Mesa for about $8,500 in attorney's fees and costs. Nobody was satisfied with this decision and everybody appeals.

Rowandrill asserts that the District Court erred (I) in holding that Rowandrill was not entitled to indemnity from Bristow, or alternatively, (II) in finding Bristow only 20% at fault for Fontenot's injuries, and (III) in holding that Rowandrill was not entitled to contractual indemnity from Mesa.

Mesa asserts that the District Court erred (I) in finding that Mesa was not potentially liable to Fontenot and thus not entitled to reimbursement from Bristow of the amounts paid in settlement of Fontenot's claim, and (II) in denying Mesa's claim for indemnification from Rowandrill based upon a WWLP.

Finally, Bristow asserts that the District Court erred (I) in finding Bristow 20% at fault for Fontenot's injuries, and (II) in ordering Bristow to reimburse Mesa for its attorney's fees and costs.

We consider each of these assertions in turn.

Rowandrill I: WWLP From Bristow

Rowandrill attacks the District Court's holding that it was not entitled to indemnification from Bristow based upon an implied WWLP. The District Court held that a WWLP can exist only when the warrantor is performing some duty for the benefit of the party asserting the warranty. Since Bristow was performing no services for Rowandrill on March 5, 1980, the night Fontenot was injured, no WWLP could arise in favor of Rowandrill. The District Court also questioned whether the WWLP was available to a vessel owner such as Rowandrill when the injured person was not a seaman, either bluewater or vicarious, to whom was owed the warranty of seaworthiness. See Whisenant v. Brewster-Bartle Offshore Co., 446 F.2d 394, 403 n. 31 (5th Cir.1971) (Ryan doctrine requires three elements, one of which is that injured party is a seaman of some type).

Rowandrill contends that since Bristow routinely provided transportation services for Rowandrill, even if it was not doing so on the night of Fontenot's injury. Bristow's helicopter could be "loosely likened to a crewboat 'standing by' " which would be sufficient to fall within a broad definition of "services." Rowandrill further asserts that, while the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) denied the availability of the WWLP as a remedy in certain situations, the WWLP survives for other situations including the present case.

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We can assume without deciding that, at least for some limited purposes, the WWLP does survive the 1972 LHWCA amendments. The 1972 amendments abrogated in the stevedore context the Ryan doctrine which had sprung up heroically to rescue shipowners from the Scylla of absolute unseaworthiness liability and the Charybdis of suits brought by negligent stevedores. See Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133...

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