94 0972 La.App. 1 Cir. 4/7/95, Use v. Use

• Decision Date: 07 April 1995
• Citation: 654 So.2d 1355
• Parties: 94 0972 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1355

654 So.2d 1355

94 0972 La.App. 1 Cir. 4/7/95

Jules USE v. Paul USE, State Farm Mutual Insurance Company, and Shell Oil Company, Inc.

No. 94 CA 0972.

Court of Appeal of Louisiana First Circuit.

April 7, 1995.

As Corrected on Limited Grant

of Rehearing June 6, 1995.

Rehearing Denied June 21, 1995.

David B. Allen, Houma, for plaintiff-appellee Jules Use.

David J. Norman, Houma, for plaintiff-appellant Todd Use.

Joseph L. Waitz, Houma, for plaintiff-appellant Paul Use.

William Brockman, New Orleans, for defendant-appellant Shell Oil Co.

Leon A. Crist, Metairie, for defendants-appellees H-Bar-H, Wylie Resources, and Boston Old Colony Ins.

Lloyd T. Bourgeois, Labadieville, for defendants-appellees Paul Use and State Farm.

Alfred J. Gould, New Orleans, for defendant-appellee Union Texas Petroleum.

Salvadore J. Pusateri, New Orleans, for defendant-appellee Halliburton Co.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

[94 0972 La.App. 1 Cir. 2] SHORTESS, Judge.

This appeal arises out of a boating accident which occurred during a late night frogging trip. Todd R. Use, Paul Use, Jules Use and Chris J. Lirette (plaintiffs) were frogging about 1:00 a.m., August 12, 1990, in a fifteen-foot aluminum boat when they struck the piling of an abandoned oil well. The boat took on water from the rear and sank. Plaintiffs fell into the water, then climbed onto the tops of the pilings where they spent the rest of the night. At daylight, Paul swam to the opposite bank and eventually returned with rescue help. Initially, Jules and Todd Use and Chris Lirette sued Shell Oil Company, Inc. (defendant), Paul Use, as owner and operator of the vessel, and State Farm Fire & Casualty Company (State Farm), Paul's insurer. Paul Use sued defendant. The cases were consolidated for discovery and trial. After discovery, H-Bar-H, Inc., and Wylie Resources, Ltd. (the landowners), and their insurer, Boston Old Colony Insurance Company (Boston), were added as defendants. Defendant subsequently filed a third party demand against Union Texas Petroleum Energy Company (UTP). Plaintiffs later amended to add UTP as a direct defendant. Defendant also asserted cross-claims against Paul Use, State Farm, and the landowners for tort indemnity or contribution. The landowners and Boston, likewise, asserted a third-party demand against UTP and cross-claims against Paul Use and State Farm. Defendant, the landowners, State Farm, and UTP, at one time or another, all requested trial by jury. The requests were denied and after a bench trial, the court found defendant 45%, the landowners 45%, and Paul Use 10% at fault in causing the accident. Judgments of the following were rendered:

                Jules Use:      $377,035.73
                Chris Lirette:  $356,594.66
                Todd Use:       $101,035.05
                Paul Use:       $ 75,879.72
                

[94 0972 La.App. 1 Cir. 3] All claims against UTP were dismissed, as were all claims by spouses for loss of consortium. ¹ Defendant, Todd Use and Paul Use appealed.

A. Liability

Defendant has assigned numerous errors to the trial court. At the outset, we find that the trial court's factual findings were not clearly erroneous. The trial court painstakingly reviewed the voluminous testimony, including depositions submitted in lieu of live testimony. A review of the record shows the trial court should be commended for its thorough and fair review of the facts. The specific factual findings made by the court were clearly permissible and supported by the record. If there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880, 883 (La.1993).

Therefore, we find the trial court did not err in holding that the accident occurred because the pilings were left by defendant, or that the piling plaintiffs struck was a hazard to navigation.

Defendant contends the trial judge could not have found it responsible under general maritime standards of liability. Under the general maritime law, a party's negligence is actionable only if it is a "legal cause" of the plaintiff's injuries. Legal cause requires that the negligence be a "substantial factor" in the injury. Donaghey v. Ocean [94 0972 La.App. 1 Cir. 4] Drilling & Exploration Co., 974 F.2d 646 (5th Cir.1992) (citations omitted). ²

Defendant's negligence in leaving the pilings and well casing protruding out of the water as an obstacle to navigation was a substantial factor in causing plaintiffs' accident. If defendant had cut the casing and removed or cut the pilings to the mud line, or, at a minimum, marked the pilings with reflectors, the accident could have been avoided. The record supports a finding of liability based on general maritime negligence. For the same reasons, the record supports a finding of liability based on state law principles of negligence.

B. Applicability of 33 U.S.C. § 403

Defendant claims Title 33, United States Code, section 403, does not apply to pilings, and, therefore, does not apply to this case. This federal statute, enacted in 1890, generally prohibits obstructions in navigable waterways without express permission from the Army Corps of Engineers. The statute lists a number of obstructions which are prohibited, including "other structures." The list is not exclusive, and determination of whether an object is an obstruction is a question of fact. The term "obstruction" is given broad interpretation in favor of free and open navigation. United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 708, 19 S.Ct. 770, 777, 43 L.Ed. 1136 (1899); Bordelon v. T.L. James & Co., 380 So.2d 226, 229 (La.App. 3d Cir.1980).

[94 0972 La.App. 1 Cir. 5] The pilings and the well casing were left protruding at least six inches above the water line. No great stretch of imagination is necessary to decide this was an obstruction to navigation. The trial court was not clearly wrong in making this factual determination. Defendant also points out it was never prosecuted by the federal government for violation of the federal law. However, the record shows defendant never sought a permit from the Army Corps of Engineers to erect the structure, which is in itself a violation of the federal law. Some courts have imposed a presumption of negligence per se when a moving vessel strikes a stationary object which is a hazard to navigation and when the object violates a law designed to prevent collisions. Board of Com'rs of Port of New Orleans v. M/V Agelos Michael, 390 F.Supp. 1012 (E.D.La.1974). ³

C. Continuance

Defendant contends the trial court erred in denying Defendant's motion to continue the trial and reopen discovery in light of newly discovered evidence of fraud on the part of plaintiffs and the unavailability of certain witnesses.

Granting a continuance is mandatory:

if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to [94 0972 La.App. 1 Cir. 6] obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

La.C.C.P. 1602. A trial court has discretion to grant a continuance in any case if there are good grounds therefor. La.C.C.P. art. 1601. In determining whether to grant a continuance, the trial court should consider diligence, good faith, and reasonable ground. Premier Bank, Nat'l Ass'n v. Robinson, 618 So.2d 1037, 1039 (La.App. 1st Cir.), writ not considered, 619 So.2d 541 (La.1993).

The record indicates the FBI and the United States Attorney investigated a report that plaintiffs had made up the story about the accident and that the suit was fraudulent. Evidence of this allegation was a letter purporting to be signed by the plaintiffs stating the accident did not happen. At the time of trial, the FBI still retained the original.

Defendant complains that their first choice in handwriting experts was unavailable and could not testify from a photocopy. Defendant also complains that the person who allegedly supplied the document, Joanne Conn, made herself unavailable for service of a subpoena to testify. For these reasons, defendant argues the trial judge was mandated to grant a continuance.

The trial court originally scheduled the trial for October 25, 1993. When the document came to light, a criminal investigation was initiated. The trial date arrived and, at the request of the FBI and U.S. Attorney, the court continued the trial until November 29, 1993. When the second trial date arrived, defendant, the landowners, and UTP filed a joint motion to continue and to reopen discovery. The trial court denied the motion and proceeded to trial. Defendant does not argue that the investigation ultimately resulted in charges against plaintiffs.

[94 0972 La.App. 1 Cir. 7] The trial already had been continued for one month; the FBI and U.S. Attorney did not request another continuance; the court required all the plaintiffs and several other individuals to provide writing samples for comparison; and it also allowed handwriting expert testimony on the issue.

Joanne Conn apparently was not available for service through no contrivance of the defense. Nevertheless, the trial court previously denied a defense request to add her to the witness list on the pretrial order. Whether she was available for service was irrelevant, given the fact that the trial court was not going to allow her to testify. ⁴

Furthermore, the fact that defendant's first choice in experts would not testify from a photocopy does not require a court to grant a continuance. We found no rule of law requiring the court to postpone trial until the parties have their first choice in experts available.

Granting a continuance was not mandatory under these circumstances, and the trial court did not abuse its discretion by denying the motion to continue.

D. Recusal

Defendant also contends the trial judge should have recused himself after one of plaint...