94 2072 La.App. 1 Cir. 12/15/95, Stockstill v. C.F. Industries, Inc.

• Court: Court of Appeal of Louisiana
• Citation: 94 2072 La.App. 1 Cir. 12/15/95, Stockstill v. C.F. Industries, Inc., 665 So.2d 802 (La. App. 1995)
• Decision Date: 15 December 1995
• Parties: 94 2072 La.App. 1 Cir

Page 802

665 So.2d 802

94 2072 La.App. 1 Cir. 12/15/95

Lowell STOCKSTILL v. C.F. INDUSTRIES, INC., et al.

No. CA 94 2072.

Court of Appeal of Louisiana First Circuit.

Dec. 15, 1995.

Writ Denied March 15, 1996.

Joseph Race, New Orleans, for plaintiff/appellee, Lowell Stockstill.

Jerald Album, New Orleans, for defendant/appellant, C.F. Industries.

Joseph W. Looney, Tyson B. Shofstahl, New Orleans, for defendant/appellee, Scaffold Builders.

Thomas M. Bergstedt, Gregory P. Marceaux, Lake Charles, for third-party defendant/appellee, Hartford Steam Boilers.

Before LeBLANC, WHIPPLE and FOGG, JJ.

[94 2072 La.App. 1 Cir. 2] WHIPPLE, Judge.

This is an appeal by C.F. Industries, Inc. ("C.F.") from a judgment in favor of plaintiff, Lowell Stockstill, and against C.F. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 11, 1990, C.F. contracted with The Hartford Steam Boiler Inspection and Fire Insurance Company ("Hartford") for the inspection of an ammonia storage tank at C.F.'s Donaldsonville plant site. Hartford, in turn, subcontracted with NDT, Unlimited ("NDT") for the performance of the inspection services. Plaintiff, Lowell Stockstill, was employed by NDT as a level two inspector technician. On this particular job, plaintiff's duties included the performance of wet fluorescent mag particle testing on the shell of the tank to determine the integrity of the shell.

C.F. also contracted with Scaffold Builders, Inc. ("Scaffold Builders") to provide scaffolding for the work to be performed. The two Sky Climber scaffolding units provided and assembled by Scaffold Builders were used by the NDT employees to inspect the walls of the tank, which were approximately 110 to 120 feet high. Each scaffolding was suspended from cables and was moved up and down by electrical hoists on either end of the scaffolding.

Because the tank did not have permanent lighting, C.F. installed portable lighting in the tank for use both by NDT personnel performing the inspection of the tank and by maintenance personnel who were cleaning an oily substance off the floor of the tank. The portable lighting provided by C.F. included two hand-held floodlights, two hand-held spotlights and two large spotlights.

C.F. also supplied electricity for the operation of the lighting and scaffolding. The system set up by C.F. to supply the tank with electricity included a transformer and a circuit breaker box. Each circuit breaker was connected to a ground fault interrupter, and each ground fault interrupter had several plug connections with 200 foot extension cords leading into the tank.

The NDT personnel began the inspection work in the tank on or about Wednesday, [94 2072 La.App. 1 Cir. 3] April 25, 1990. During the first few days of the project, the workers experienced problems with electrical power outages. Apparently, rainy weather was causing the ground fault interrupters to trip, resulting in power outages. On several occasions, these power outages prevented the NDT employees from operating the hoists on the scaffolding equipment, thus resulting in the scaffolding becoming stuck in a fixed position. In an attempt to correct the problem, C.F. personnel taped the electrical connections to waterproof them and built a temporary shelter over the circuit breaker box. Also, use of one of the two large spotlights was discontinued to prevent an electrical overload. Although the problem with electrical power outages was more prevalent at the beginning of the job, this problem continued throughout the job.

On Sunday, April 29, 1990, plaintiff and a co-employee, Keith Lyons, were using one of the Sky Climber scaffolds to perform testing on the walls of the tank. When they attempted to lower the scaffold, only one of the two hoists was operating. Thus, one end of the scaffold could be lowered, but the other could not. In an attempt to correct the problem, plaintiff and Lyons inched the scaffold upward and would then try to lower it again. On each attempt, the scaffold moved up higher, but could not be lowered. Plaintiff and Lyons called for assistance, and the NDT supervisor, a C.F. supervisor, and a Scaffold Builders technician discussed possible solutions with plaintiff and Lyons.

A decision was made that plaintiff and Lyons would disembark from the scaffolding to allow the Scaffold Builders personnel to work on the scaffolding. The end of the scaffolding with the functioning hoist was lowered to approximately four feet above the ground, such that the scaffold was tilted at an angle toward the ground. According to plaintiff, as the functioning end of the scaffold was lowered, the lighting within the tank began to dim, and by the time he reached the lower end of the scaffold to disembark, it was dark in the tank.

Lyons also testified that a light that had been pointed toward the scaffolding was turned in another direction before they attempted to disembark, and when he got off of the scaffolding, the tank was dark. Lyons stated that he had difficulty seeing the floor [94 2072 La.App. 1 Cir. 4] as he got off the scaffolding, and he really had to "strain" to see it. Lyons was able to safely disembark from the scaffolding; however, when plaintiff attempted to disembark, he misjudged the distance to the ground and landed on his left leg, seriously injuring his knee.

Plaintiff filed suit against C.F. and Scaffold Builders, alleging that he was injured on the job and that these defendants were liable for damages for his resulting injuries, based on theories of negligence and strict liability. ¹

Thereafter, C.F. filed a cross-claim against Scaffold Builders, seeking indemnification pursuant to the terms of an appendix allegedly attached to the purchase order entered into by the parties. C.F. then filed a motion for summary judgment on its cross-claim, averring that judgment should be rendered in its favor, ordering Scaffold Builders to indemnify C.F. against the claims of plaintiff. The motion was denied by the trial court on September 25, 1991.

C.F. also filed a third party demand against Hartford, alleging that Hartford also owed it indemnification against plaintiff's claims, pursuant to the terms of an appendix allegedly attached to the purchase order in effect between the parties. On June 1, 1993, C.F. moved for summary judgment against Hartford, averring that it was entitled to judgment as a matter of law, ordering Hartford to indemnify it against plaintiff's strict liability claims and against plaintiff's negligence claims, provided that C.F. was not found to be solely negligent. By judgment dated August 16, 1993, the trial court rendered partial summary judgment in favor of C.F. and against Hartford, entitling C.F. to complete indemnification from Hartford against plaintiff's negligence claims, unless C.F. was found to be solely negligent. The trial court denied C.F.'s motion for summary judgment on the issue of its entitlement to indemnification from Hartford for [94 2072 La.App. 1 Cir. 5] the strict liability claims of plaintiff against C.F.

Shortly before the trial in this matter, plaintiff and Scaffold Builders entered into a compromise agreement, and plaintiff proceeded to trial only against C.F. C.F.'s cross-claim against Scaffold Builders was also presented at the trial. Following a four day jury trial, the jury found C.F. to be both negligent and strictly liable, found no liability on the part of Scaffold Builders and assessed fault as follows: 40% to C.F.; 18% to NDT, plaintiff's employer; and 42% to plaintiff. The jury assessed plaintiff's damages at $483,500.00.

With regard to C.F.'s cross-claim against Scaffold Builders, the jury determined that C.F. had not sent to Scaffold Builders the appendix containing the indemnity language on which C.F. relied. The trial court then reapportioned NDT's fault between plaintiff and C.F., in accordance with the dictates of Gauthier v. O'Brien, 618 So.2d 825 (La.1993), and concluded that C.F.'s reapportioned fault was 48.8%.

By judgment dated March 8, 1994, the trial court rendered judgment in favor of plaintiff and against C.F. in the amount of $235,948.00, representing 48.8% of $483,500.00, with legal interest from the date of judicial demand until paid. The judgment also contained a provision dismissing C.F.'s cross-claim against Scaffold Builders with prejudice.

C.F. filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. The court denied the motion on April 18, 1994. C.F. then perfected this appeal from the March 8, 1994 judgment and from the April 18, 1994 judgment, denying its motion for judgment notwithstanding the verdict or, alternatively, for new trial. C.F. lists fourteen assignments of error. ²

[94 2072 La.App. 1 Cir. 6] EVIDENTIARY AND PROCEDURAL ISSUES

TRIAL COURT'S REFUSAL TO ALLOW C.F. TO AMEND ITS ANSWER

(Assignment of Error No. 1)

On August 12, 1993, nineteen days before the scheduled trial date, C.F. filed a motion for leave of court to file a First Amended Answer. Through its amended answer, C.F. sought to assert the affirmative defense of immunity from tort liability by virtue of its status as plaintiff's statutory employer. Although the trial court ordered C.F. to show cause on August 27, 1993, why it should be granted leave to file its amended answer, there is no minute entry indicating that the hearing took place. Moreover, the record before us contains no ruling by the trial court on this issue.

On August 16, 1993, C.F. filed a motion for summary judgment or, in the alternative, a motion in limine to strike plaintiff's claims against it, and the basis for these motions was its assertion of statutory employer status. By order dated that same day, the trial court denied the motions.

C.F. argues that the trial court abused its discretion in denying C.F.'s motion to amend its answer to plead the defense of immunity from tort liability as plaintiff's statutory employer under LSA-R.S. 23:1061. C.F. further...