94-1582 La.App. 3 Cir. 9/6/95, Milstead v. Diamond M Offshore, Inc.

Citation663 So.2d 137
Parties94-1582 La.App. 3 Cir
Decision Date06 September 1995
CourtCourt of Appeal of Louisiana (US)

Elwood C. Stevens Jr., Morgan City, for Edward D. Milstead.

Cliffe Edward Laborde III, Dean Anderson Cole, Lafayette, for Diamond M Offshore, Inc. et al.

Before DECUIR, AMY and SULLIVAN, JJ.

[94-1582 La.App. 3 Cir. 1] AMY, Judge.

This matter arises from an offshore injury sustained by plaintiff, Edward D. Milstead, while on a vessel owned by defendant 1. We find no manifest error on the part of the trial court and affirm its ruling as amended below.

PROCEEDINGS BELOW

On September 8, 1992, Edward Milstead was working as a floor hand aboard a semi-submersible offshore derrick owned by defendant. Plaintiff was injured when his head was struck by a falling drill line while extending his upper torso and head through two handrails during a "cutting and slipping" operation. On June 11, 1993, plaintiff filed suit in Iberia Parish seeking to recover under the Jones Act and general maritime law for past, present, and future medical expenses; general damages for pain and suffering; mental anguish, distress, and emotional upset; special damages for loss of income and impairment of earning capacity; and maintenance and cure.

[94-1582 La.App. 3 Cir. 2] After a four-day bench trial, the trial court found that defendant had breached its duty as a vessel owner under the general maritime law to provide a seaworthy vessel, a competent crew, and the necessary equipment to perform the functions of the rig. The trial court also found that defendant, as plaintiff's employer, was negligent under the Jones Act. Although the trial court noted that plaintiff had a duty to perform his job duties in a non-negligent manner and found that he had reached through a handrail without wearing a safety harness contrary to defendant's safety rules, the trial court determined that plaintiff's failure to wear a safety harness did not cause his injuries. Consequently, the trial court determined that the unseaworthiness of defendant's vessel and defendant's negligence solely caused plaintiff's injuries and that plaintiff was not comparatively negligent.

The trial court found that plaintiff had suffered injuries to his lower back, neck and head and an aggravation of a preexisting injury to his knees. The trial court awarded plaintiff $953,536.40 for past and future economic loss because the trial court found that plaintiff was unable to return to gainful employment. The trial court also awarded $150,000 for past and future physical pain and suffering and an additional $150,000 for past and future mental pain, anguish and loss of enjoyment of life. The trial court further found that plaintiff had not reached maximum medical cure and that defendant was obligated to continue providing cure until plaintiff reached maximum medical cure.

The trial court held that defendant was responsible for $10,084.95 in past medical expenses. The trial court found that defendant did not arbitrarily and capriciously fail to pay cure because appropriate investigation delayed payment. Consequently, the trial court concluded that defendant did not owe plaintiff penalties and attorney's fees. The trial court also determined that defendant did not act [94-1582 La.App. 3 Cir. 3] willfully and wantonly to cause plaintiff's injuries; therefore, defendant was not liable for punitive damages on the maritime claim. The final award totaled $1,263,621.30.

ASSIGNMENTS OF ERROR

Defendant appealed, listing the following assignments of error and issues for review:

1. Every medical expert testified that plaintiff is physically and mentally capable of returning to gainful employment within certain restrictions. Even plaintiff's vocational expert testified that plaintiff was employable. And yet, without revealing the basis for its decision or any assessment of the experts' credibility or qualifications, the trial court concluded that plaintiff will never be able to return to work. The court erred.

2. In lieu of live testimony, the parties submitted written economic reports. Plaintiff's report did not contain the underlying facts or reasons for its conclusions, while defendant's report included the supporting facts and reasons for each opinion. The trial court erred in adopting the highest figure offered by plaintiff's economist without providing any reason for rejecting the opinions of defendant's economist.

3. Plaintiff positioned himself outside the handrail in the only place he could have been injured. The trial court held plaintiff was negligent, but found that plaintiff's actions and fault were not a cause of the accident. The trial court did not reveal the causation standard it applied. It was error for the court to find plaintiff's negligence was not the slightest producing cause of his own accident.

4. The trial court found that plaintiff had an aggravation to a pre-existing condition. However, the trial court failed to address the extent of the aggravation or how it affected plaintiff's economic and general damages. This was error.

5. The trial court awarded prejudgment interest on lump sum awards for past and future damages. It was error for the trial court to award prejudgment interest on future damages.

[94-1582 La.App. 3 Cir. 4] Plaintiff answered the appeal and asserted the following assignments of error and issues for review:

1. Whether or not a trial judge errs in failing to award any sum for future medical expenses when the evidence overwhelmingly preponderates that plaintiff has incurred substantial past medical expenses and is clearly in need of multiple future surgeries, therapies and treatments. Future medical expenses should have been awarded.

2. Whether or not a general maritime law claim for punitive damages in connection with denial of a maintenance and cure claim survived Miles v. Apex Marine [498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) ] and whether the evidence preponderates that defendant was arbitrary and capricious in denying plaintiff's maintenance and cure claim. The trial court erred in failing to award punitive damages.

THE ACCIDENT

The purpose of the "cutting and slipping" operation in which plaintiff was engaged at the time of his injury was to replace worn drill line. The drill line is wire rope weighing four to five pounds per foot that moves the drill block up and down in the derrick. During the operation, an air hoist lifts the new drill line from the drill floor into the derrick.

Plaintiff was ordered by Tommy Hale, the driller and his supervisor, to stand on the motor shed, which is located twelve to fifteen feet above the drill floor. It is surrounded by two handrails. His mission was to prevent the drill line from rubbing on the hydraulic hose as it was hoisted up.

The first time plaintiff attempted to remove the drill line from the hydraulic hose, the drill line was not far away and he was able to reach the drill line and pull it back. As the drill line continued to be lifted by the air hoist, it got closer and closer to the hydraulic hose. Eventually the drill line came to rest against the hydraulic hose. At this point, plaintiff testified that he was unable to reach the drill line from [94-1582 La.App. 3 Cir. 5] his previous position. He testified that he tried to reach the drill line by leaning his body in between the two handrails, but that he was afraid that he would fall from that position. So plaintiff sat on the bottom handrail, crossed his legs around a vertical post, held onto the handrail with his left hand, and was able to reach out and grab the drill line with his right hand. The accident occurred when the drill line fell, striking plaintiff's head as he stretched out from the handrail. Plaintiff's body "jack-knifed," and he fell backwards to the floor of the motor shed.

STANDARD OF REVIEW

Under the manifest error standard of review the trial court's factual findings will only be disturbed on appeal if we conclude after a review of the record that a reasonable factual basis does not exist for the trial court's findings and that the record establishes that the trial court's findings are clearly wrong. Stobart v. State through DOTD, 617 So.2d 880 (La.1993). Defendant argues that under Bloxom v. Bloxom, 512 So.2d 839 (La.1987), the deference that Louisiana appellate courts normally accord the trier of fact's factual findings under the manifest error standard of review is not applicable in this case because the trial court failed to articulate the legal theories or evidentiary facts on which its factual conclusions were based. Consequently, defendant urges this court to conduct an independent review of the record.

Before determining whether the manifest error standard of review or the less deferential Bloxom standard of review is applicable, we must first consider whether Louisiana law supplies the applicable standard of review or if Rule 52(a) of the Federal Rules of Civil Procedure is controlling.

In Trahan v. Gulf Crews Inc., 260 La. 29, 255 So.2d 63 (1971), the Louisiana Supreme Court held that federal law governed the standard of review for suits [94-1582 La.App. 3 Cir. 6] instituted under the Jones Act and federal maritime law in the Louisiana state courts. Subsequently, this court followed Trahan and applied federal law to review the factual findings in Jones Act and maritime cases brought in the Louisiana state courts. West v. State Boat Corp., 458 So.2d 647 (La.App. 3 Cir.1984); Reed v. Seacoast Products, Inc., 458 So.2d 971 (La.App. 3 Cir.1984).

In Daigle v. Coastal Marine, 488 So.2d 679 (La.1986), the Louisiana Supreme Court was asked to consider whether Louisiana law or federal law governed the scope of appellate review with respect to jury verdicts in an Outer Continental Shelf Lands Act (OCSLA) case. The Louisiana Supreme Court held...

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