Allen v. Mobile Interstate Piledrivers

• Decision Date: 23 August 1985
• Citation: 475 So.2d 530
• Parties: Otis ALLEN v. MOBILE INTERSTATE PILEDRIVERS, a joint venture consisting of Jordan Industries, Inc., Newmac, Inc., and Gulf City Construction Company. MOBILE INTERSTATE PILEDRIVERS, a joint venture consisting of Jordan Industries, Inc., Newmac, Inc., and Gulf City Construction Company v. Otis ALLEN. 83-1298, 83-1385.
• Court: Alabama Supreme Court

Page 530

475 So.2d 530

Otis ALLEN v. MOBILE INTERSTATE PILEDRIVERS, a joint venture consisting of Jordan Industries, Inc., Newmac, Inc., and Gulf City Construction Company.

MOBILE INTERSTATE PILEDRIVERS, a joint venture consisting of Jordan Industries, Inc., Newmac, Inc., and Gulf City Construction Company v. Otis ALLEN.

83-1298, 83-1385.

Supreme Court of Alabama.

Aug. 23, 1985.

Oliver J. Latour, Jr. of Owens, Latour & Simpson, Bay Minette, and Robert T. Cunningham, Jr. of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.

G. Hamp Uzzelle III of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.

BEATTY, Justice.

Plaintiff appeals from the trial court's entry of judgment notwithstanding the verdict (JNOV) in defendant's favor in this suit for negligence under the Jones Act ¹ and for unseaworthiness under general maritime law.

Plaintiff was employed by defendant as a concrete finisher to work on the bridges on Interstate Highway 65 over the Tensaw and Mobile Rivers. When plaintiff reported to work each morning, he was taken by boat to Barge No. 103, which was secured in the river by spuds, metal poles driven into the river bed. The barge, which was 120 feet long by 49 feet wide, contained all of the equipment needed for repairing the bridge pilings. Specifically, the barge carried a large crane and a compressor used to operate an air jackhammer.

Plaintiff and the other men working from the barge would stay on the barge all day, including the lunch break. They also remained on the barge while it was moved to different locations. The barge had no locomotive power but was moved by tugboat on the average of twice per week. The men assisted in the barge's movement by hooking and unhooking cables to the sides of the barge and hooking the crane to the spuds. They also performed other minor duties on the barge, such as cleaning and oiling concrete forms and lumber.

The majority of plaintiff's time at work, however, was spent in a cofferdam, a rectangular structure driven into the river bed and rising 3 feet above water level, which kept water away from the footing while the men worked on it. The men went from the barge into the cofferdam by means of a ladder.

On August 4, 1978, plaintiff fell from the ladder into the cofferdam, a distance of approximately 18 feet, and was injured. Plaintiff claimed that the ladder was too short and was not properly secured to the top and sides of the cofferdam.

Aetna Life and Casualty Insurance Company, defendant's workmen's compensation carrier, paid plaintiff's medical expenses, totaling $8,117.17, and also paid plaintiff $20,561.25 as temporary total disability and permanent partial disability based on a 20% loss of use of his leg and a 30% loss of use of his foot. Plaintiff filed the present action in Mobile County on April 7, 1980. On July 22, 1980, he filed another action in Baldwin County under the Alabama Workmen's Compensation Act. The second action was continued pending the outcome of the first. The trial court in the present case sustained plaintiff's motion in limine, excluding any reference to the benefits and medical expenses already paid to plaintiff. However, the court and the attorneys indicated that the insurance carrier would receive credit for what had already been paid to plaintiff if he recovered in this lawsuit.

The jury returned a verdict in plaintiff's favor in the amount of $125,000. However, the trial court granted defendant's motion for JNOV on the ground that plaintiff was not a seaman. Plaintiff has appealed from the JNOV. In its cross-appeal, defendant argues: (1) the trial court erred in refusing to give certain charges to the jury concerning plaintiff's status as a seaman; (2) the trial court erred in not granting defendant's motion for directed verdict on the issue of unseaworthiness; (3) the trial court erred in overruling defendant's objection to plaintiff's closing argument; and (4) the trial court erred in excluding from the jury evidence of plaintiff's recovery of workmen's compensation payments.

I. PLAINTIFF'S APPEAL

The only issue raised by plaintiff is the entry of JNOV in favor of defendant on the ground that plaintiff was not a seaman and, therefore, was not entitled to recover. In federal courts, "[t]he standard for testing a jury's finding that a worker is or is not a Jones Act seaman is whether there is a reasonable evidentiary basis to support that finding." Savoie v. Otto Candies, Inc., 692 F.2d 363, 365 (5th Cir.1982). In Alabama, a JNOV is improper if there was a scintilla of evidence to support the jury verdict. Rule 50(e), A.R.Civ.P.; Hanson v. Couch, 360 So.2d 942, 944 (Ala.1978). We need not decide whether the scintilla rule applies to a suit in state court in which federal law applies, since our review of the evidence convinces us that the result would be the same applying either standard.

The Jones Act does not define the term "seaman." A leading case on this question is Offshore Co. v. Robison, 266 F.2d 769, 779-80 (5th Cir.1959), in which the fifth circuit stated:

"Attempts to fix unvarying meanings [which] have a firm legal significance to such terms as 'seaman,' 'vessel,' 'member of a crew' must come to grief on the facts. These terms have such a wide range of meaning, under the Jones Act as interpreted in the courts, that, except in rare cases, only a jury or trier of facts can determine their application in the circumstances of a particular case. Even where the facts are largely undisputed, the question at issue is not solely a question of law when, because of conflicting inferences that may lead to different conclusions among reasonable men, a trial judge cannot state an unvarying rule of law that fits the facts. The Jones Act cases involving coverage are similar in this respect to many negligence and contributory negligence cases."

The court set forth the following test:

"[T]here is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips." 266 F.2d at 779.

In Robison, the plaintiff was assigned to a barge or mobile drilling platform. At the time of the accident, the barge was anchored to the bottom of the Gulf of Mexico. Plaintiff was a roughneck, or oil driller's helper. In addition to his oil drilling duties, plaintiff performed tasks on the barge such as chipping rust, painting, and washing down the decks. The court affirmed a judgment for plaintiff, holding that: (1) he was permanently assigned to a special purpose vessel; and (2) his duties aboard the vessel contributed to its mission, "to the operating function she was designed to perform as a sea-going drilling platform." 266 F.2d at 779.

Plaintiff claims that he meets the first part of the Robison test because he was permanently assigned to a vessel, namely Barge No. 103. Defendant's first challenge to this is that the barge in question was not a vessel. Defendant relies upon three cases which hold that a workman who is assigned to or performs a substantial amount of work on a stationary platform moored in navigable waters is not a seaman. Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116 (1973); Leonard v. Exxon Corp., 581 F.2d 522 (5th Cir.1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 397 (1979); Watkins v. Pentzien, Inc., 660 F.2d 604 (5th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2010, 72 L.Ed.2d 467 (1982). In Cook, the plaintiff was injured on a barge used as a floating construction platform. The platform was occasionally moved to different positions alongside the dock and was towed a short distance to deeper water to launch the barges constructed on the platform. The fifth circuit affirmed the trial court's grant of summary judgment for defendant. The appellate court held that the construction platform was indistinguishable from a floating dry dock and was, therefore, not a vessel. Responding to the plaintiff's argument that the platform was occasionally moved, the court stated:

"The permanence of fixation, however, is not the criterion which governs the maritime status of floating dry docks and similar structures. As the Supreme Court pointed out in The Robert W. Parsons the 'determinative factors upon the question of jurisdiction [are] the purpose for which the craft was constructed and the business in which it is engaged.' 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73 (1903)." 472 F.2d at 1001.

Leonard involved a construction platform consisting of four flat deck barges, three of which were lashed together end to end and moored more or less permanently to the river bank by steel cables. The fourth barge, which carried a crane, was connected to the shore by a wooden ramp. It was moved slightly forward or backward to allow the crane to service the other three barges. Following Cook, the court affirmed the entry of summary judgment for the defendant on the grounds that the platform was not a vessel. However, the court noted that Cook and Leonard should be applied restrictively since they deviate from the general practice of submitting Jones Act issues to the jury. 581 F.2d at 524.

In Watkins, the plaintiff was employed on two barges secured to each other by steel cables and used as a construction platform. The platform was placed at a right angle to the river, pushed close to the bank, and moored with spuds. The court found the two barges...