Ellison v. Conoco, Inc., 90-3360

Decision Date24 January 1992
Docket NumberNo. 90-3360,90-3360
PartiesBrian Lee ELLISON, Plaintiff-Appellant, Aetna Casualty & Surety Co., Intervenor-Appellant, v. CONOCO, INC., Defendant-Appellee-Appellant, v. ASSOCIATED OILFIELD SERVICES, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Mark E. Hanna, Martin E. Regan, Jr., Regan & Associates, New Orleans, La., for Ellison.

Timothy M. Waller, Sr., Lenfant & Associates, Metairie, La., for Aetna.

Lawrence E. Best, Peter S. Koeppel, Abbott, Webb, Best & Meeks, New Orleans, La., for Conoco.

Lawrence J. Ernst, Charles M. Lanier, Jr., Christovich & Kearney, New Orleans, La., for Associated Oilfield.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before HENLEY, * KING, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Brian Lee Ellison (Ellison) was injured in an offshore oilfield accident involving snubbing equipment operated by his employer, Snubbing Services, Incorporated (SSI). Ellison sued Conoco, Incorporated (Conoco), the company for whom Ellison's employer was performing subcontracting work, and Associated Oilfield Services (Associated), the alleged owner of the snubbing equipment. Ellison suffered summary judgment on all of his claims against Associated, and on all but a negligence claim against Conoco. After a jury trial on the sole issue of Conoco's negligence, Ellison's favorable verdict was overturned by the district judge's decision to grant Conoco's motion for judgment notwithstanding the verdict (JNOV). Ellison appeals the JNOV, and, alternatively, the adverse summary judgments. Conoco cross-appeals the summary judgment in favor of Associated. We affirm.

Facts And Proceedings Below

On September 7, 1984, Ellison suffered extensive personal injuries as a result of an incident involving oilfield snubbing equipment on an offshore platform located in the Gulf of Mexico off the Louisiana coast. At that time, Ellison was employed by SSI, which was performing subcontracting work for Conoco on the outer continental shelf. Pursuant to the contract between Conoco and SSI, Ellison and a few other employees, along with a snubbing unit, 1 were sent out to Conoco's platform to complete snubbing operations on a defective oil well there. While attempting to remedy an apparent malfunction in the snubbing unit, Ellison became trapped under the jack-head of the unit, resulting in serious and permanent injuries to his back and lower extremities.

Ellison filed suit against Conoco on February 11, 1985, basing jurisdiction on the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq., and alleging a cause of action for injuries under the Louisiana Civil Code, articles 2315, 2317, and 2322. 2 Through subsequent amendments to his complaint, Ellison added Associated, alleging a cause of action based on strict liability for failure to properly design, manufacture, or maintain the snubbing equipment that caused Ellison's injury, alleged to be "Unit # 2". Conoco filed a cross-claim against Associated based on the defective equipment. Aetna Casualty & Surety Company (Aetna), the insurance carrier that paid Ellison's workmen's compensation claims and medical expenses, intervened on September 27, 1985.

After protracted discovery, Associated filed a motion for summary judgment, contending that it had no ownership of and no control over the oilfield snubbing unit involved in the accident, which it identified as "Unit # 1." Ellison withdrew his initial opposition to the motion, and agreed to dismiss his complaint against Associated with prejudice. Conoco, however, continued to oppose the motion, which was nevertheless granted by the district court following a hearing. A few weeks after the hearing, on February 9, 1989, Ellison purportedly discovered "new evidence" that Unit # 2 was in fact the snubber involved in the accident, and requested permission to vacate the judgment and renew his opposition to Associated's summary judgment. On March 1, the district court granted Ellison's motion to withdraw his motion to dismiss, but denied the motion to vacate. All parties, however, were permitted to submit additional evidence on the custody issue. The summary judgment in favor of Associated was ultimately upheld by the district court on June 19, 1989. Ellison v. Conoco, Inc., 718 F.Supp. 15, 17 (E.D.La.1989).

Conoco also filed a motion for summary judgment on the issue whether it had custody or control of the snubbing unit. The district court granted this motion on January 18, 1989 insofar as it addressed strict liability under articles 2317 and 2322 of the Louisiana Civil Code. A few days before trial, Conoco reurged its summary judgment motion on the question whether it was negligent for exercising control over the SSI snubbing operations, yet failing to discover or remedy hazards in the snubbing unit. This motion was granted on July 31, 1989.

As a result of the summary judgments, trial went forward against only Conoco and solely on the issue whether Conoco negligently failed to remedy the noise hazard created by the turbine engine on the platform where the SSI crew was working. Ellison's trial presentation centered on attempting to establish that excessive noise generated by the turbine rendered him unable to hear the jack-head hydraulics in time to avoid being struck and pinned. Following the two-week trial, during which over 20 witnesses were presented, the jury returned a verdict in favor of Ellison, assessing fault at 60% on behalf of Conoco, 30% for the defective snubbing unit, and 10% on the part of Ellison, and finding Ellison's total damages to be $618,763.55. Ellison was awarded judgment for $556,887.20 (90% of $618,763.55). On September 11, 1989, Conoco filed a motion for JNOV, or alternatively, a motion for new trial, or in the further alternative, for remittitur. By order dated May 3, 1990, and entered May 4, 1990, the district court granted the JNOV motion, reasoning under Louisiana law that Conoco owed no duty to shut down the turbine engine solely on account of its noise production. The court based its analysis on a conclusion that no federal or state regulations required shut down under the circumstances existing at the time of the accident; further, that Ellison had failed to establish that the noise of the turbine in particular and above all other noise contributed to the accident.

Following the May 4, 1990 entry of the order granting the JNOV, Ellison and Aetna appealed the judgments in favor of Conoco, as well as the summary judgment in favor of Associated. Conoco also filed a notice of appeal challenging the summary judgment in favor of Associated.

Discussion
I. Appellate Jurisdiction

At the outset, we must address Associated's contention that this Court is without jurisdiction to hear these appeals. Associated argues that Ellison's notice of appeal, 3 which was filed May 11, 1990, after entry of the district court's order and reasons granting the JNOV (docketed May 4, 1990) but before entry of a separate document granting judgment for Conoco on that basis (docketed May 21, 1990), was premature. 4 Because Ellison filed no notice of appeal on or after May 21, 1990, Associated requests that this Court dismiss Ellison's appeal for want of jurisdiction.

Reference to the Federal Rules of Appellate Procedure does not clearly resolve this issue. Under the Rules, certain premature notices of appeal are deemed timely. See FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., --- U.S. ----, 111 S.Ct. 648, 651, 112 L.Ed.2d 743 (1991). Rule 4(a)(2) provides that a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order "shall be treated as filed after such entry and on the day thereof." However, Rule 4(a)(2) recognizes an exception in cases in which timely filing of any of several specified post-trial motions (such as a motion for JNOV) has destroyed the finality of the judgment, in such instances directing instead application of Rule 4(a)(4). The latter rule provides that "the time for appeal ... shall run from the entry of the order denying a new trial or granting or denying any other such motion" and that a notice of appeal is ineffective if filed "before the disposition of" the post-trial motion. Rule 4(a)(4) further provides that a "new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above." See also Acosta v. La. Dept. of Health and Human Resources, 478 U.S. 251, 106 S.Ct. 2876, 2877-78, 92 L.Ed.2d 192 (1986) (holding that a notice of appeal is ineffective when filed after announcement of the decision but before entry of the order on any post-trial motion referenced in Rule 4(a)(4)). The rationale behind the distinction between Rules 4(a)(2) and 4(a)(4) is made clear by the Advisory Committee's notes:

"[S]ince a notice of appeal filed before the disposition of a post trial motion, even if it were treated as valid for purposes of jurisdiction, would not embrace objections to the denial of the motion, it is obviously preferable to postpone the notice of appeal until after the motion is disposed of." Fed.R.App.P. 4(a)(4), Advisory Committee's note (1979 amendment).

If the appellant fails to timely file a notice of appeal after disposition of the post-trial motion, the appellate court lacks jurisdiction. Offshore Prod. Contractors v. Republic Underwriters, 910 F.2d 224, 229 (5th Cir.1990). The question before this Court, then, is whether entry of the district court's order and reasons granting Conoco's motion for JNOV "disposed of" the motion for purposes of Rule 4(a)(4), or whether a separate document judgment for Conoco was mandated by Rule 58 to complete the disposition of the motion for JNOV.

The parties defend their positions with conflicting interpretations of Rule 4(a)(4). Associated points to Rule 4(...

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