Aymond v. Texaco, Inc.
| Decision Date | 17 June 1977 |
| Docket Number | No. 75-2931,75-2931 |
| Parties | Morris AYMOND, Plaintiff-Appellee-Cross-Appellant, v. TEXACO, INC., et al., Defendants-Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edmund E. Woodley, Lake Charles, La., for defendants-appellants.
Darrell J. Hartman, Kaplan, La., for plaintiff-appellee.
Harvey L. Strayhan, New Orleans, La., for Bethlehem.
James E. Diaz, Lafayette, La., for Seaboard & Highlands.
William M. Nolen, William B. Swift, Lake Charles, La., for Jones & Laughlin.
Appeals from the United States District Court for the Western District of Louisiana.
Before AINSWORTH and CLARK, Circuit Judges, and HUGHES *, District Judge.
While working on a drilling crew on a fixed platform off the Louisiana coast, Morris Aymond was injured when a steel cable, called a snub line, snapped, allowing metal tongs which it anchored to swing into and damage his knee.
Aymond, an employee of Falcon Seaboard Drilling Company, instituted a negligence action against Texaco, Inc., on whose platform he was working at the time of the accident, and Travelers Insurance Company, Texaco's insurer. Aymond also named Jones & Laughlin Steel Corporation as a defendant, alleging its liability as either a vendor or manufacturer of the broken cable. Texaco filed a third party complaint against Falcon, with which it had a drilling contract at the time of the accident, and its insurer, Highlands Insurance Company. In this third party complaint, Texaco sought indemnity from Falcon or, alternatively, insured status under Falcon's insurance contract with Highlands. Falcon and Highlands then filed a third party complaint against Jones & Laughlin.
The trial court directed a verdict in favor of Jones & Laughlin and, after refusing to direct a verdict in favor of Texaco against Aymond, let the balance of the case go to the jury. 1 The jury found both Texaco and Falcon negligent, but the trial court released Falcon from liability after holding that Falcon owed no indemnity to Texaco because of Texaco's negligence. Thus, after this legal scramble, Texaco was left holding the bag.
Texaco has appealed, raising four principal issues. Aymond has cross-appealed on the issue of computation of interest.
We first address the issue of whether or not the trial court erred in its denial of Texaco's motions for directed verdict and judgment notwithstanding the verdict.
The cable which snapped was thrown into the Gulf of Mexico shortly after the accident and was unavailable for inspection at trial. Testimony indicated that it was a 7/8 "wire rope" made of woven steel strands with a steel core, and that witnesses who inspected the cable before it was tossed overboard found it was rusty at the center but not on the outside. Basically, Aymond's negligence argument was that Texaco had breached its duty of reasonable care owed to Aymond in that it had required Falcon to use salt water instead of fresh water to wash as often as 50 times per day the deck around the drilling area. The broken cable had been looped around metal tongs which were used in drilling operations in this area and which allegedly were washed by this salt water. As part of his negligence theory, Aymond contended that salt water: caused corrosion faster than fresh water; was indeed used to wash down the deck and some of the equipment, including the tongs and the part of the cable looped over the tongs; and caused corrosion which contributed significantly to the cable's breaking.
Before considering the evidentiary details, we note the following passage which sets forth the standard by which both trial and appellate courts must judge motions for directed verdict and judgment notwithstanding the verdict: Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). See also Worthington Corp. v. Consolidated Aluminum Corp., 544 F.2d 227 (5th Cir. 1976). Did Aymond present "substantial evidence" that Texaco was negligent?
In disclaiming its negligence, 2 Texaco makes several arguments. It argues that the need to conserve fresh water offshore due to transportation difficulties and expense justified the use of salt water to wash work areas. It argues that evidence showed the universal practice in the offshore drilling industry was to use salt water for clearing decks and fresh water for washing equipment. It argues that evidence showed salt water did not cause the snub line's failure because the point of failure was washed with fresh water, the cable was in use only 10 to 12 days, and the cable's being rusty on the inside but not the outside indicated that the cable had a defect prior to its use. Furthermore, Texaco argues, there was expert testimony that the cable could not have failed in such short time due to corrosion from salt water. Finally, Texaco claims that Aymond's principal expert witness, Frank Weaver, gave speculative testimony based only on a hypothetical situation and that his testimony indicated that washing with salt water was only one of several possible causes of the cable's corrosion.
Arrayed against Texaco's evidence, Aymond had testimonial evidence that, regardless of any presumed need to minimize the use of fresh water offshore, it was not the universal practice in the offshore drilling industry to wash the decks with salt water, that the point of failure was washed with salt water, and that spraying with salt water could have caused corrosion within so short a time as 10 to 12 days, with the cable's weakening from such corrosion being exacerbated by stress placed on the snub line. Aymond's expert witness Weaver testified that a metallurgical theory known as the "wick theory" would explain the phenomenon of a cable rusting on the inside before the outside. In what is perhaps the weakest part of Aymond's negligence case against Texaco, Weaver testified at length in response to a hypothetical question by Aymond's counsel. This portion of Aymond's case requires some elaboration.
In response to the hypothetical question, necessitated by the cable's unavailability, Weaver testified that the cause of cable failure would be corrosion from salt water. As brought out on cross-examination, the question excluded certain other possible causes of stress corrosion, an exclusion acknowledged by Weaver in a colloquy with the district judge:
Later, there was this exchange between the district judge and Weaver:
We discern in Mr. Weaver's testimony a scientist's punctilious adherence to faith in the need for direct observance of events and to the advisability of avoiding categorical statements. However, the legal system does not and should not require that evidence be weighed with scientific exactitude. Verbal, not mathematical, formulas are used to resolve evidentiary problems. Here, the verbal formula is supplied by Boeing and it is quite apparent that Mr. Weaver's testimony on the cause of breakage is of the type that could lead to different conclusions by different reasonable people on the accident's cause. Aymond also presented substantial evidence opposed to the motions on the other elements of its negligence claim against Texaco. Therefore, we find no error in the trial court's denial of Texaco's motions for directed verdict and judgment notwithstanding the verdict.
We next address the question of whether the district court properly held that Texaco was not entitled to indemnity from Falcon.
The drilling contract between Texaco and Falcon contained the following provision as P 10(e):
Contractor (Falcon) agrees to protect, indemnify and save TEXACO harmless of and from all claims, demands and causes of action in favor of third parties on account of personal injuries or death or on account of property damage other than property damage expressly described in subparagraph 10(c) above which arises out of the work to be performed by Contractor or Contractor's agents and employes. Contractor also agrees to protect, indemnify and save TEXACO harmless of and from all claims, demands, and causes of action in favor of Contractor's employes on account of personal injuries or death on account of property damage, no matter how such claims arise.
Texaco claims that the last sentence of P 10(e), especially the clause "no matter how such claims arise," "clearly and unequivocally" indicates that Falcon was to indemnify Texaco for negligence claims by Falcon's employees against Texaco, especially since Falcon was also found negligent.
Under Louisiana law, an aspiring indemnitee which is itself negligent has an especially heavy burden to bear in...
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