Bartholomew v. CNG Producing Co.

Decision Date17 November 1987
Docket NumberNo. 87-4265,87-4265
Citation832 F.2d 326
PartiesRobert BARTHOLOMEW, Jr., and Ann Bryant Bartholomew, Plaintiffs-Appellees Cross-Appellants, and Liberty Mutual Insurance Company, Intervenor-Appellee Cross-Appellant, v. CNG PRODUCING COMPANY, Defendant-Appellant Cross-Appellee Appellee. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

Wood Brown, III, New Orleans, La., for CNG Producing Co.

J.B. Jones, Jr., Cameron, La., Wilford D. Carter, Lake Charles, La., for Bartholomew.

Kenny M. Charbonnet, Metairie, La., for Liberty Mut. Ins. Co.

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

Before POLITZ, JOHNSON and HIGGINBOTHAM, Circuit Judges.

JOHNSON, Circuit Judge:

In this dispute involving the Outer Continental Shelf Lands Act (OCSLA), the defendant CNG Producing Company appeals from the district court's judgment based upon the jury verdict. By way of cross-appeal, the plaintiffs, Robert Bartholomew, Jr., and Ann Bryant Bartholomew, attack the district court's award of postjudgment interest at a rate lower than that prescribed by Louisiana law as improper and also assert that the overall award of damages is inadequate. We reject the contentions of both parties and affirm.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Robert Bartholomew, Jr., was injured on October 30, 1984, while working as a roughneck on an offshore production platform on the outer Continental Shelf off the Louisiana coast. At all material times, Bartholomew was an employee of Booker Drilling Company. Booker was working as an independent contractor for CNG Producing Company, who owned and operated the offshore platform. Under the contract between CNG and Booker, CNG reserved the right to inspect all work performed on the rig. To exercise this right of inspection, CNG relied primarily on two "company men." One of these men was E.W. Farrar, Jr., an independent consultant, and the other was J.T. Madison, a salaried full-time employee of CNG. These men were to ensure that drilling operations on the platform were conducted in a safe and efficient manner.

At the time of the accident, Bartholomew and the driller, Perry Gill, were setting slips, an operation which involved putting pipe into the well hole. The rig floor on which the men were working was wet and muddy. As a result of the floor's condition, Bartholomew slipped and twisted his back, sustaining the injuries to his back which form the basis of this lawsuit. 1 In the subsequent jury trial, Bartholomew testified that the reason the rig floor was wet and muddy was because the CNG "company man," J.T. Madison, whom Bartholomew referred to as "Mad Dog," had instructed the driller, Gill, not to stop the drilling operation to wash off the floor, but to do so afterwards.

Ultimately, the jury determined that CNG was negligent, finding CNG to be thirty percent at fault for Bartholomew's injuries. We note at this time that CNG failed to move for a directed verdict or a judgment notwithstanding the verdict. 2 Additionally, the jury awarded $325,000 for damages suffered by Bartholomew as a result of the accident and $5,000 to Ann Bartholomew for her loss of consortium and services. The district court also awarded the Bartholomews prejudgment interest at the rate of twelve percent per annum from the date of judicial demand until entry of the judgment and awarded interest thereafter at the rate prescribed by 28 U.S.C. Sec. 1961 until payment of the judgment by CNG. Both parties appeal the district court's judgment.

II. DISCUSSION
A. The OCSLA

Bartholomew was injured on an offshore fixed platform located on the outer Continental Shelf off the coast of Louisiana. The Outer Continental Shelf Lands Act (OCSLA) provides that federal jurisdiction extends to

the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, ..., to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: ....

43 U.S.C. Sec. 1333(a)(1) (emphasis added). Both parties in the instant case attempt to characterize the jurisdictional basis of this lawsuit as one premised on diversity of citizenship pursuant to 28 U.S.C. Sec. 1332. This characterization is incorrect. Since the accident occurred on an offshore platform located on the outer Continental Shelf, the appropriate basis of jurisdiction for this claim is the OCSLA; therefore, the applicable law in the instant case is defined by the OCSLA as follows:

To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent state, ... are hereby declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf,....

43 U.S.C. Sec. 1333(a)(2)(A). Interpreting the above provision, the Supreme Court, in Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), stated that the law to be applied in actions governed by the OCSLA is "federal law, supplemented by state law of the adjacent state,...." Id. at 355, 89 S.Ct. at 1837. Thus, the Act mandates that we technically apply federal law to the instant case, but also apply the law of the adjacent state, Louisiana, as surrogate federal law to the extent that it is not inconsistent with federal laws and regulations. Having determined the applicable law, we next turn to the merits of the parties' contentions on appeal.

B. The Liability of CNG

The Bartholomews brought this negligence suit against CNG, asserting that CNG was negligent (1) in ordering Bartholomew's employer, Booker, to engage in an unsafe work practice and (2) in contracting with Booker for an inadequate number of floor hands to operate the equipment safely. In defense, CNG argues that as a principal which exercised no operational control over its independent contractor, Booker, CNG was insulated from liability in this case. Because we find that some evidence exists to support a finding by the jury that CNG expressly authorized an unsafe work practice on the platform, we reject CNG's arguments and affirm the district court's judgment without addressing the claim that CNG was negligent in failing to contract for adequate personnel.

It is well established that a principal is not liable for the activities of an independent contractor committed in the course of performing its duties under the contract. Hawkins v. Evans Cooperage Co., 766 F.2d 904, 906 (5th Cir.1985); Wallace v. Oceaneering Int'l, 727 F.2d 427, 437 (5th Cir.1984); Moser v. Texas Trailer Corp., 623 F.2d 1006, 1014-15 (5th Cir.1980). However, two notable exceptions exist to this general rule. First, a principal may not escape liability arising out of ultrahazardous activities which are contracted out to an independent contractor. Second, and of importance to the instant case, a principal is liable for the acts of an independent contractor if he exercises operational control over those acts or expressly or impliedly authorizes an unsafe practice. Hawkins, 766 F.2d at 906; Wallace, 727 F.2d at 437; Williams v. Gervais F. Favrot Co., 499 So.2d 623, 625 (La.App.1986), writ denied, 503 So.2d 19 (La.1987); Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604, 606-07 (La.App.1978), writ denied, 366 So.2d 575 (La.1979).

Where an available safe method, which includes the taking of adequate precautions, will render it at least ordinarily safe, and the work is done in an unsafe manner, the employer will be liable if he has expressly or impliedly authorized the particular manner which will render the work unsafe, and not otherwise.

Ewell, 364 So.2d at 607 (quoting Perkowski, The Employer and the Torts of His Independent Contractor in Louisiana, 21 Tul.L.Rev. 619, 627 (1947)).

Having set forth the general rule and its exceptions, we must now determine the appropriate standard of review to utilize in reviewing the jury's findings. As previously noted, CNG failed to move for a directed verdict or a judgment notwithstanding the verdict at the trial level. This Court has consistently held that it will not review the sufficiency of the evidence supporting a jury finding in the absence of a directed verdict or motion for judgment notwithstanding the verdict. Smith v. Trans-World Drilling Co., 772 F.2d 157, 160 (5th Cir.1985); Quinn v. Southwest Wood Products, Inc., 597 F.2d 1018, 1024 (5th Cir.1979); Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978); Fugitt v. Jones, 549 F.2d 1001, 1004 (5th Cir.1977). Accordingly, our evidentiary inquiry is limited to whether there was "any evidence to support the jury's verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a 'manifest miscarriage of justice.' " Coughlin, 571 F.2d at 297 (emphasis in original).

In finding that the appropriate standard of review is whether there was any evidence to support the jury's finding, we reject CNG's assertion that it was entitled to judgment as a matter of law. The jury expressly found that CNG's negligence was a cause in fact of the injury suffered by Bartholomew on the offshore platform. Thus, the inquiry becomes whether there was any evidence that CNG exercised operational control over its independent contractor, Booker, or expressly or impliedly authorized the unsafe practice which caused Bartholomew's injuries.

Bartholomew testified at trial that the company man, J.T. Madison, expressly told the driller,...

To continue reading

Request your trial
112 cases
  • Barker v. Hercules Offshore Inc
    • United States
    • U.S. District Court — Southern District of Texas
    • February 1, 2011
    ...District Courts." Amoco Prod. Co. v. Sea Robin Pipeline Co., 844 F.2d 1202, 1205 (5th Cir. 1988). See also Bartholomew v. CNG Producing Co., 832 F.2d 326, 328 (5th Cir. 1987)(regardless of how the parties characterize jurisdiction, OCSLA determines the jurisdiction and the applicable law); ......
  • Asarco LLC v. Americas Mining Corp.
    • United States
    • U.S. District Court — Southern District of Texas
    • April 14, 2009
    ...award of prejudgment interest where state law provides for prejudgment interest as a substantive right. See Bartholomew v. CNG Producing Co., 832 F.2d 326, 330-31 (5th Cir.1987). New Jersey law requires the inclusion of prejudgment interest in all judgments arising out of tort claims, excep......
  • FDIC v. Perry Bros., Inc.
    • United States
    • U.S. District Court — Eastern District of Texas
    • June 3, 1994
    ...by the parties to be November 29, 1990). (State law governs the award of prejudgment interest. See Bartholomew v. CNG Producing Co., 832 F.2d 326, 330-331 (5th Cir.1987). And Texas law sets the minimum judgment rate of interest at 10%. TEX.REV.CIV.STAT.ANN. art. 5069-1.05 § 2.) The Court di......
  • Keeton v. Wal-Mart Stores, Inc.
    • United States
    • U.S. District Court — Eastern District of Texas
    • August 28, 1998
    ...The attorney fee award will be $2,750. D. Prejudgment Interest State law governs pre-judgment interest. Bartholomew v. CNG Producing Co., 832 F.2d 326, 330-31 (5th Cir.1987). Under Texas law, prejudgment interest applicable to this case is 10 percent annually. TEX. FIN. CODE ANN. § 304.003 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT