93-1668 La.App. 3 Cir. 11/23/94, Alleman v. Brownie Drilling Co.

• Decision Date: 23 November 1994
• Citation: 647 So.2d 371
• Parties: 93-1668 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 371

647 So.2d 371

93-1668 La.App. 3 Cir. 11/23/94

James A. ALLEMAN, Plaintiff-Appellee, v. BROWNIE DRILLING CO., et al., Defendants-Appellants.

No. 93-1668.

Court of Appeal of Louisiana,

Third Circuit.

Nov. 23, 1994.

Rehearing Denied Jan. 18, 1995.

Writ Denied March 30, 1995.

Russell T. Tritico, Lake Charles, for James A. Alleman.

Robert W. Clements, Lake Charles, for Brownie Drilling Co., Etc.

Donald Coleman Brown, Lake Charles, for Amoco Production Co.

Before LABORDE, KNOLL, THIBODEAUX, SAUNDERS and PETERS, JJ.

[93-1668 La.App. 3 Cir. 1] SAUNDERS, Judge.

In this maritime tort case, the trial judge, by directed verdict, ruled that plaintiff, James A. Alleman, was a Jones Act seaman. After a jury trial, judgment was rendered in favor of the plaintiff. The trial judge denied the drilling company's Motion for Judgment Notwithstanding the Verdict or, in the alternative, for a new trial or remittitur, maintaining the jury's award to plaintiff of substantial damages against his drilling company employer for lost wages, lost future earnings, and general damages. We affirm, except to eliminate prejudgment interest and reduce plaintiff's award for lost future earnings to five years post-trial, beyond which no corroborative medical evidence was adduced to [93-1668 La.App. 3 Cir. 2] substantiate his claim. See Coco v. Winston Ind., 341 So.2d 332 (La.1976); Aisole v. Dean, 574 So.2d 1248, 1252 (La.1991) and cites therein.

FACTS

Plaintiff, James A. Alleman, filed suit under the Jones Act for injuries sustained while working for Brownie Drilling Company (Brownie) as a roughneck on a barge outfitted with a workover rig in Black Lake, Cameron Parish, on February 17, 1988. The truck-mounted workover rig had seen no land work for some three years, during which time it was used solely in connection with the barge GROSBECK. The rig was owned by Brownie, which also supplied the crews and handled the rig's frequent moves from site to site.

On the day of the accident in question, plaintiff, ordinarily a motorman, worked on the rig floor as a roughneck. He and the other hands had already replaced iron pipes in the drill hole and were working with fiberglass stands when, suddenly and without notice, plaintiff was struck forcefully by equipment used by Brownie to replace the pipe stands in the hole.

As a result of the accident, plaintiff sustained lacerations to the front and back of his head, a non-displaced skull fracture, a concussion, and a strain to the cervical spine. He was hospitalized for five days and treated over the next two and one-half years by some ten physicians. The skull fracture healed without surgical intervention and plaintiff was released by his physicians to return to work within the year. Although plaintiff was treated and released by ten physicians, none was able to locate the source of his continuing complaints of back pain, headaches and dizziness.

[93-1668 La.App. 3 Cir. 3] LITIGATION HISTORY

Plaintiff filed suit against Brownie Drilling Company and Amoco Production Company (Amoco) under the Jones Act and general maritime law, requesting and obtaining a jury trial. Employed by Brownie as a permanent member of its Workover Rig No. 17, plaintiff sued Brownie under the Jones Act for the alleged negligence of the driller and for maintenance and cure. Plaintiff also sued Amoco as owner of the barge GROSBECK on which the Brownie rig was situated, for unseaworthiness of the barge.

Amoco's specialized barge outfitted with Brownie's truck-mounted workover rig was frequently moved from one well site to another. After the rig was moved by Brownie personnel to a particular location, its crew would sink the barge to the lake bottom.

At trial, plaintiff testified as to the accident's occurrence and persistence of his injuries. He stressed the hurry that the Brownie crew was in to finish the job that day so that it could move to another location, that the supervising driller ignored plaintiff's notice that the metallic cap attached to the movable hook or hoist overhead lacked one of its two moving screws, and that the driller too abruptly lowered or braked the descending type elevator. Coworkers corroborated his account that a cap screw was missing before his accident, that the cap fell off at the time of the mishap, and that the accident was accompanied by a noise previously unknown to any of the crew members.

Additionally, plaintiff's father and wife testified that they did not believe plaintiff had been malingering. These family members further supported plaintiff's contention that, although his condition had improved, plaintiff [93-1668 La.App. 3 Cir. 4] continued, as of the date of trial, to have fairly frequent headaches and lower back pains.

Brownie, through the sole eyewitness to the actual impact, countered that plaintiff was struck in the head by the elevator, not by flying debris. According to the driller charged with lowering and braking the elevator, two strands of fiberglass tubing became separated when the descending stand hit a "tight spot" caused by a subterranean imperfection in the drill hole. He believed that when the stand hit the "tight spot," the elevator descended more quickly than the fiberglass tubing, causing the tubes to become separated from the elevator.

The trial court granted plaintiff's Motion for Directed Verdict on the issue of seaman's status and Amoco's Motion for Directed Verdict on the issue of unseaworthiness. The only issues to reach the jury concerned Brownie's negligence, plaintiff's damages, and the date legal interest would commence.

After a short recess, the Cameron Parish jury returned a verdict finding Brownie negligent and awarded plaintiff: $125,000.00 for five years lost wages, from date of accident through May 25, 1993, the date of its verdict; $500,000.00 in lost future earnings; $300,000.00 for physical pain and suffering and mental anguish up to date of trial; and $75,000.00 for future disability, physical pain and suffering and mental anguish. Finally, the jury concluded that interest should begin from the date of accident, not from date of judicial demand or date of judgment.

APPELLATE POSTURE

This appeal followed the trial court's denial of Brownie's Motion for a Judgment Notwithstanding the Verdict or, Alternatively, a New Trial.

[93-1668 La.App. 3 Cir. 5] Defendant Brownie Drilling Company initially maintains that the trial court erred in finding that plaintiff was a Jones Act seaman and in removing the question from the jury. Additionally, Brownie maintains that the trial court erred in finding Brownie liable, and in refusing to upset the jury's award. Brownie also contends that the trial court erred in not reducing the legal interest awarded by the jury.

Finally, Amoco Production Company, the owner of the barge against whom the trial judge dismissed the claims of unseaworthiness, contests the trial court's refusal to require Brownie to reimburse it for attorney's fees and other defense expenses it incurred pursuant to an assumption and indemnity agreement between it and Brownie.

JUDGMENT NOTWITHSTANDING THE VERDICT

"The Louisiana Supreme Court, in Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, at page 832 (La.1991), discusses the criteria to be used in determining when a motion for JNOV is proper:

'A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Scott [v. Hospital Service District No. 1,] supra [496 So.2d 270 (La.1986) ]. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the [93-1668 La.App. 3 Cir. 6] JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e., do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.' "

Gray v. Texaco, Inc., 610 So.2d 1090, 1093 (La.App.3d Cir.), writ denied, 616 So.2d 686, 687 (La.1993).

Seaman Status

After thoroughly reviewing the testimony and exhibits, like the trial judge, we conclude that the facts and inferences point so strongly and overwhelmingly in favor of plaintiff's seaman's status that the jury could not have arrived at a contrary conclusion.

"The Jones Act provides that 'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law....' 46 U.S.C.App. § 688.

The court in Wilkerson v. Teledyne Movible Offshore, Inc., 496 F.Supp. 1279, 1282-1283 (E.D.Tex.1980), defined seaman as one who:

" '(1) [has] a more or less permanent connection with (2) a vessel in navigation and (3) the capacity in which he is employed or the duties which he performs must contribute to the function of the vessel, the accomplishment of its mission or its operation or welfare in terms of its maintenance during its movement or during...