94 1268 La.App. 1 Cir. 4/7/95, Coleman v. Robicheaux Air Boats, Inc.

• Decision Date: 07 April 1995
• Parties: 94 1268 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1331

657 So.2d 1331

94 1268 La.App. 1 Cir. 4/7/95

Russell COLEMAN and Lola Coleman v. ROBICHEAUX AIR BOATS, INC., ¹ and Shell

Western E & P Inc., et al.

No. 94 CA 1268.

Court of Appeal of Louisiana,

First Circuit.

April 7, 1995.

Rehearing Denied June 21, 1995.

Anthony M. Fazzio, Lafayette, for plaintiffs-appellants.

Russell M. Cornelius, James R. Logan, IV, New Orleans, for defendant-appellee Robicheaux Air Boats, Inc.

Before WATKINS and FOGG, JJ., and TANNER, J. Pro Tem. ²

[94 1268 La.App. 1 Cir. 2] THOMAS W. TANNER, Judge Pro Tem.

This is an appeal from a judgment of the Sixteenth Judicial District Court granting summary judgment in favor of the defendant, Robicheaux Air Boats, Inc. (hereinafter "Robicheaux") dismissing plaintiffs' Jones Act claims as to that defendant on a finding that the plaintiff, Russell Coleman, was not an employee of Robicheaux.

During August of 1991, Shell Western E & P, Inc. (hereinafter "Shell") ³ was conducting seismographic exploration work in Black Bayou near Sulphur, Louisiana. Shell obtained laborers, including Russell Coleman, for the work being conducted from Shot Point Service, Inc. (hereinafter "Shot Point"), plaintiff's employer. Shell obtained air boats and air boat drivers for the operation from Robicheaux. Plaintiff was a member of a crew that was responsible for laying and removing geophones and lines at designated survey sites across the marshland. Mr. Coleman's crew worked off of an air boat owned and driven by a Robicheaux employee, but which had been leased to Shell. On August 17, 1991, Mr. Coleman lost his footing and fell while standing in the air boat, and claims he injured his neck and back. Plaintiffs assert in their petition that since Mr. Coleman was working on a vessel, he was a member of the crew of that vessel and therefore has seaman status with regard to the vessel owner, Robicheaux, which entitles plaintiffs to Jones Act remedies.

From the lower court judgment granting Robicheaux's Motion for Summary Judgment, plaintiffs appeal asserting the following errors:

(1) The Trial Court erred by failing to give written reasons for judgment.

(2) The Trial Court improperly granted a partial summary judgment.

ASSIGNMENT OF ERROR NUMBER (1)

Plaintiffs argue initially that the trial court is required by La.C.C.P. art. 1917 to file written reasons for judgment, and that [94 1268 La.App. 1 Cir. 3] the oral reasons assigned by the court did not comply with the statutory requirements. Article 1917 provides, in pertinent part:

In all appealable contested cases, other than those tried by a jury, the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment, provided the request is made not later than ten days after the signing of the judgment.

Plaintiffs filed their request for written reasons together with their petition, far in advance of the rendition of the judgment. However, we do not find it necessary to address whether a request for written reasons is properly filed prior to either the hearing or judgment rendered thereafter, as we believe the trial court issued adequate reasons for judgment. "Reasons for Judgment" were filed by the trial court which stated, in pertinent part:

This matter was heard on December 3, 1993 on Motion for Summary Judgment on the issues of absolute liability and loss of consortium filed by defendant, Robicheaux Airboats, Inc. The Court pretermitted a ruling on this motion until after it heard a second set of related motions in January, 1994, in order to issue a consolidated set of Reasons for Judgment on all motions. As it happens, however, the Court ruled from the bench on all three issues presented in the second set of motions argued on January 31, 1994. Specifically, the Court found that (1) the plaintiff, as a matter of law, was not a Jones Act seaman; (2) that plaintiff's motion for the protective order seeking to limit discovery by defendant Robicheaux Airboats, Inc., to one attorney/law firm was moot in light of the Court's ruling on the seaman statu[s] issue; and (3) that defendants' alleged affirmative defense of "failure to state a claim upon which relief can be granted" would be stricken from the answer and heard in limine as an Exception of No Cause of Action....

....

... As noted above, the Court has previously found, as a matter of law, that the plaintiff is not a seaman for purposes of the Jones Act as to defendant, Robicheaux Airboats, Inc. ... The Court ruled that the plaintiff is not a seaman as to Robicheaux Airboats, Inc. under the Jones Act solely because of a lack of an employer/employee relationship between the plaintiff and Robicheaux Airboats, Inc. ...

Thus, the trial court has stated, though summarily, its reasons for judgment.

ASSIGNMENT OF ERROR NUMBER (2)

Plaintiffs argue that depositions apparently relied on by the trial court in rendering summary judgment were merely excerpts rather than complete transcripts and therefore should not have been considered by the trial court. Plaintiffs further argue that a [94 1268 La.App. 1 Cir. 4] question of fact remained as to Mr. Coleman's seaman status, and notwithstanding, the grant of a partial summary judgment isolates and dismisses only one of several theories of liability and as such is piecemeal litigation.

At the outset, we reject appellants' arguments with regard to the admissability of the deposition testimony before the trial court on this motion for summary judgment. Excerpts of depositions filed into the record may properly be considered by the trial court in ruling on a motion for summary judgment even though the entire transcript of the deposition was not filed. Barnett v. Staats, 25,357 (La.App. 2d Cir. 1/19/94), 631 So.2d 84. See also Johnson v. Slidell Memorial Hospital, 552 So.2d 1022 (La.App. 1st Cir.1989), writ denied, 558 So.2d 571 (La.1990). As noted by the Barnett court, this use of deposition excerpts is in accordance with La.C.C.P. art. 1450. 631 So.2d at 87. Should a party desire to have additional portions of such a deposition presented to the court, the proper remedy is in accordance with La.C.C.P. art. 1450(A.) (4). As in Barnett, apparently appellants did not complain about the use of deposition excerpts in the trial court. Furthermore, each of the deposition excerpts is independently stamped filed by the clerk of the trial court avoiding the result reached in Placid Refining Company v. Privette, 523 So.2d 865 (La.App. 1st Cir.), writ denied, 524 So.2d 748 (La.1988), where depositions were merely attached to memoranda and not properly filed into the record. Hence, the deposition excerpts in the instant case were properly considered by the trial court.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). Summary judgment under La.C.C.P. art. 966 is available only when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Thompson v. [94 1268 La.App. 1 Cir. 5] South Central Bell Telephone Company 411 So.2d 26 (La.1982); Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981); Chaisson v. Domingue, 372 So.2d 1225 (La.1979). All doubt concerning dispute as to a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. Penalber v. Blount, 550 So.2d 577 (La.1989); Lytell v. Goodyear Tire & Rubber Co., 439 So.2d 542 (La.App. 1st Cir.1983); Gulf-Wandes Corporation v. Vinson Guard Service, Inc., 393 So.2d 207 (La.App. 1st Cir.1980), writ denied, 397 So.2d 1359 (La.1981).

The initial determination, on motion for summary judgment, is whether the supporting documents presented by the moving party are sufficient to resolve all material issues of fact; if they are not sufficient, summary judgment should be denied. It is only if they are sufficient that the burden shifts to the opposing party to present evidence that a material fact is still at issue; only at this point may the adverse party no longer rest on the allegations contained in his or her pleadings. Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d 381 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1136 (La.1991); Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Frazier v. Freeman, 481 So.2d 184 (La.App. 1st Cir.1985); Nathans v. Vuci, 443 So.2d 690 (La.App. 1st Cir.1983).

The facts of this case reveal that Russell Coleman was employed by Shot Point. Mr. Coleman testified that he was hired by Shot Point employees and that he received his paycheck from Shot Point. This scenario is complicated by the fact that Shot Point sent Mr. Coleman to work for Shell on a Shell seismographic exploration operation, and by the fact that while doing this job, Russell Coleman worked off of a Robicheaux owned and operated boat.

Only an employer can be liable under the Jones Act. Youn v. Maritime Overseas Corp., 605 So.2d 187 (La.App. 5th Cir.1992), set aside in part on other grounds (on damages), 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). See also Symeonides v. Cosmar Compania Naviera, S.A., [94 1268 La.App. 1 Cir. 6] 433 So.2d 281, 288 (La.App. 1st Cir.), writ denied, 440 So.2d 731 (La.1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1442, 79 L.Ed.2d 762 (1984). However, for purposes of recovery under the Jones Act, it may be possible for a seaman to have more than one Jones Act employer. Youn, 605 So.2d at 200. Thus, if Russell Coleman can be considered the "borrowed employee" of either Shell or Robicheaux, he has a remedy for his injuries against that party. However, at issue for purposes of this...