92-71 La.App. 3 Cir. 2/23/94, Butler v. Zapata Haynie Corp.

• Decision Date: 23 February 1994
• Citation: 633 So.2d 1274
• Parties: 92-71 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1274

633 So.2d 1274

92-71 La.App. 3 Cir. 2/23/94

John William BUTLER, Plaintiff-Appellant, v. ZAPATA HAYNIE CORPORATION, Defendant-Appellee.

No. 92-71.

Court of Appeal of Louisiana, Third Circuit.

Feb. 23, 1994.

Rehearing Denied April 6, 1994.

Raleigh Newman, Lake Charles, for John William Butler.

James Buckner Doyle, Lake Charles, for Zapata Haynie Corp.

Before DOMENGEAUX, C.J., and STOKER, THIBODEAUX, COOKS and SAUNDERS, JJ.

[92-71 La.App. 3 Cir. 1] THIBODEAUX, Judge.

In this action brought under the Jones Act, 46 U.S.C.App. § 688, for negligence, the general maritime law for unseaworthiness of the vessel, and for punitive damages, attorney fees, and penalties for failure to provide maintenance and cure, the plaintiff, John Butler, appeals a judgment in favor of Zapata Haynie Corporation, defendant and owner of the fishing vessel, M/V Oyster Bayou, on which plaintiff claims he was injured on April 24, 1989.

After the presentation of plaintiff's case in this non-jury trial, the trial court granted Zapata's motion for involuntary dismissal of the unseaworthiness claim. At the completion of the trial, the court concluded that an accident had not occurred and dismissed plaintiff's remaining claims.

[92-71 La.App. 3 Cir. 2] John Butler filed this appeal from the judgment of the trial court. We affirm the judgment as it relates to the dismissal of the unseaworthiness claim, and reverse and render on the Jones Act negligence claim and the refusal to award maintenance and cure benefits. We decline to award punitive damages and attorney fees.

FACTS

Butler was a member of the crew of the M/V Oyster Bayou which was engaged in catching menhaden, or "pogy," fish in the Gulf of Mexico. His job was that of a cork puller in the mate boat, one of two purse boats which is a powered launch carried by the main vessel, or "steamer." The purse boats encircle the schools of menhaden with a large drawn net. Each purse boat has a power block mounted on a large swivel boom. This power block weighs approximately 300 pounds and is used to lift the net after the fish are caught. It is hydraulically powered from the engine on the purse boat.

Butler claims he was struck on the left side of his head by the power block which was being operated by Aldoise "Cookie" Hampton whose regular job was that of a cook or ring setter. This blow caused a herniated cervical disc at the C5-6 level of the neck as the principal injury which left him disabled.

John Butler, the plaintiff, testified that he was working in the mate purse boat with, among others, Frank Robinson and Aldoise "Cookie" Hampton, the block operator. The block was located behind him as he was working with the net near the time the accident occurred. George Lemelle, a crew member, yelled at him to "watch out." At about that time, he saw Hampton "fighting" with the control levers. As he turned to determine what danger was involved, he was almost immediately struck by the block. He recalls waking up later in his bunk in the "hold" of the boat.

When his captain, Bruce Mason, visited him in the hold, [92-71 La.App. 3 Cir. 3] he advised Mason of pain in his head, chest and left arm areas. Shortly thereafter, Mason brought him ashore and instructed him to report the incident to his pilot because of Mason's inability to write a report. As he, Butler, was giving a narrative to the pilot, Mason interrupted them and accused Butler of "making a case." Butler testified that Mason then escorted him off of the premises. He ultimately went home after returning to Zapata's plant to request that an accident report be made.

According to Butler, a friend offered to transport him to a doctor on April 25th, the day after the accident. Instead, he was brought to Attorney Gano Lemoine's office who arranged an appointment with Dr Frank Robbins, a specialist in industrial medicine and Board certified in surgery and emergency medicine. Butler was examined by Dr. Robbins on April 26, 1989. Dr. Robbins referred him to Dr. William Foster, a neurosurgeon, who recommended physical therapy. Dr. Robbins also recommended an MRI diagnostic procedure, but Butler had to forgo this testing because no one would pay for it, including Zapata.

Butler's testimony was corroborated by Oscar Dudley, a cousin by marriage. Because of a malfunction in the netting process, the fish could not be lifted and pumped into the steamer. Consequently, the fish had to be released. A crewman yelled for the ring setter to operate the block for the purpose of swinging it over. Apparently, according to Dudley, the incorrect lever was used by the operator which caused the block to swing around and strike Butler. Dudley further testified that the block had been functioning improperly and the crew had knowledge of this. Specifically, he stated that it was difficult for an operator to control the direction of the block swing once it began moving. He assisted the plaintiff in getting to the steamer after the occurrence. Butler advised him that his hand, arm and back areas were in pain.

[92-71 La.App. 3 Cir. 4] In his initial statement given to Joanna "Jody" Olsen, the claims representative for Zapata, two days following the accident, Dudley stated that he heard someone yelling to move the power block and heard the power block striking Butler's helmet on the left side, but Butler continued to work. Butler later told him that his arm was bothering him and he had a headache. Dudley's deposition testimony contradicted his initial statement in that it substantially tracked his trial testimony. His deposition and trial testimony emphatically stated that Butler was hit in the head and bent over, but not to the floor level after being hit. When confronted with the disparities in his various statements, Dudley explained that he was less than truthful in his statement to the claims representative because he wanted to preserve his bonus of $500.00 which each crew member received for an accident-free season.

George Lemelle, another crew member of the M/V Oyster Bayou, testified that he saw the block strike Butler on the left side of the head. After the blow, Butler was taken down to his bunk area of the steamer.

In support of its position that an accident did not occur, Zapata's captain, Bruce Mason, testified that he witnessed an occasion on April 24th when Butler's hat brim was hit by the power block. Butler, however, continued working and the fishing operation was not interrupted. Mason felt that Butler was uninjured by the minor impact. When he later checked on Butler in the bunk area of the steamer, Butler was experiencing difficulty in "catching his breath," although Mason admitted that Butler was also complaining about pain in his head area for which he supplied some aspirin. Mason subsequently filed an accident report and described the accident as "minor."

On cross-examination, Mason indicated that he had heard crew members talking about Butler being hit by the power block. He further admitted that it was possible for Butler [92-71 La.App. 3 Cir. 5] to become injured by an event which he did not witness. Butler initially voiced a desire for medical treatment but, according to Mason, changed his mind after they engaged in an argument.

Mason's testimony also verified that the company had problems with the controls on the power block "for a period of time" before the accident, but he was uncertain if the problem was corrected before leaving on the date of the accident.

The other primary defense witness on the issue of liability was Aldoise "Cookie" Hampton, the power block operator on the day of the accident whose regular job was that of a cook and ring setter on the boat. Hampton said that nothing was wrong with the power block. The block, however, could have struck Butler without his (Hampton's) knowledge. He admitted moving the block because it appeared as though a collision between the purse boat and the steamer was imminent. He admonished the crewmen to "look out" when the block began moving. Hampton did not see Butler being hit; he only heard about it from crew members. However, he went into Butler's bunk area to inquire about his condition because he knew that Butler had "got hurt." He testified that he observed a "nail scratch" on Butler.

TRIAL COURT'S FINDINGS

The ultimate conclusion of the trial court was that Butler failed to prove an accident. It reached this determination by judging the plaintiff's case solely on the credibility of John Butler, the plaintiff, and two of his witnesses, Oscar Dudley and George Lemelle, who was mistakenly identified as "Philip Lemelle" in the trial court opinion. It identified their credibility as "nonexistent" while apparently giving credence to the testimony of the two main witnesses for Zapata on the issue of liability.

For the reasons expressed below, the trial court was manifestly erroneous in its findings.

[92-71 La.App. 3 Cir. 6] ISSUES

The issues are:

(1) Whether the trial court committed manifest error in failing to find that an accident occurred;

(2) Whether the trial court committed manifest error in failing to find negligence on the part of Zapata Haynie Corporation;

(3) Whether the trial court committed manifest error in granting a directed verdict on the issue of unseaworthiness and in failing to find that the M/V Oyster Bayou was unseaworthy;

(4) Whether the trial court committed manifest error in failing to make an award for maintenance and cure; and,

(5) Whether the trial court committed manifest error in failing to find the actions of Zapata Haynie to be arbitrary and capricious for their failure to pay maintenance and cure, in failing to award penalties, punitive damages, and attorney fees against Zapata on the issue of maintenance and cure.

DISCUSSION

An appellate court in Louisiana is constitutionally authorized to review both law and facts. La. Const. art. V, § 10(B). This court is acutely aware of the oft-quoted rules of appellate review. Just...