Beech v. Hercules Drilling Co.

• Decision Date: 14 August 2012
• Docket Number: No. 11–30415.,11–30415.
• Citation: 691 F.3d 566
• Parties: Amanda BEECH, individually and as tutrix, guardian of her minor child, Jax Delton Beech, Plaintiff–Appellee Cross–Appellant, v. HERCULES DRILLING COMPANY, L.L.C., Defendant–Appellant Cross–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

691 F.3d 566

Amanda BEECH, individually and as tutrix, guardian of her minor child, Jax Delton Beech, Plaintiff–Appellee Cross–Appellant,

v.HERCULES DRILLING COMPANY, L.L.C., Defendant–Appellant Cross–Appellee.

No. 11–30415.

United States Court of Appeals,Fifth Circuit.

Aug. 14, 2012.

George William Healy, IV (argued), George W. Healy IV & Associates, Gulfport, MS, for Plaintiff–Appellee Cross–Appellant.

David Sinnott Bland (argued), Matthew C. Guy, LeBlanc Bland, P.L.L.C., New Orleans, LA, for Defendant–Appellant Cross–Appellee.

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

Before REAVLEY, ELROD and HAYNES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This case requires us to decide whether vicarious liability principles under the Jones Act allow a seaman's wife to recover from her husband's employer for the bizarre events that led to his tragic and untimely death. Keith Beech died after his co-worker, Michael Cosenza, accidentally shot him aboard a Hercules-owned vessel. The district court determined that Cosenza was acting in the course and scope of his employment at the time of the accident. Because we conclude that Cosenza was not acting in the course of his employment when he accidentally shot Beech, we REVERSE.

I.

The following facts are undisputed. Keith Beech (“Beech”) was a crane operator working aboard a jack-up drilling rig that his employer, Hercules, owned. Michael Cosenza (“Cosenza”) worked as a driller aboard the same vessel. When Cosenza came aboard, he accidentally brought a firearm with him, which violated Hercules' policy prohibiting weapons on the vessel. Cosenza and Beech were both aware of Hercules' policy against firearms. After discovering the firearm in some of his laundry, Cosenza did not tell anyone that he had inadvertently brought it aboard. Instead, he kept it hidden in his locker on the rig. This failure to report the firearm constituted an additional violation of Hercules' safety policy.

On December 13, 2009, Cosenza was assigned to work a night shift and was the only crewman on duty. Cosenza's duties that night were to monitor the rig's generator, to check certain equipment, and to report any suspicious activity or problems. Hercules encouraged Cosenza to stay in the break room while he performed these duties, watching television and commiserating with fellow crew members. Cosenza could simultaneously watch television and monitor the generator because if something were to go wrong with the generator, the television would turn off.

Beech was not on duty but was aboard the vessel and subject to the call of duty. Both men were in the rig's television room, watching television and chatting. Beech mentioned that he was thinking about purchasing a small firearm, and Cosenza, thinking Beech might be interested in seeing his firearm, left the break room and went to his locker to retrieve it. Upon returning, Cosenza showed the firearm to Beech, who inspected it but did not handle it. As Cosenza sat back down in the TV room, his arm bumped a part of the couch, and the firearm accidentally discharged, mortally wounding Beech.

Mrs. Beech subsequently brought a wrongful death action against Hercules under the Jones Act. After a bench trial, the district court granted judgment in favor of Mrs. Beech, individually, in the amount of $876,997.00 and as tutrix, guardian of her minor child, Jax Delton Beech, in the amount of $317,332.00, for a total recovery of $1,194,329.00. Beech v. Hercules Drilling Co., 786 F.Supp.2d 1140, 1150–51 (E.D.La.2011). Hercules contends on appeal that Beech and Cosenza were not acting in the course of their employment at the time of the accident and that the district court's judgment in favor of Mrs. Beech must, for that reason, be reversed. Mrs. Beech cross-appeals, arguing that the district court failed to include loss of fringe benefits damages in its damages award.

II.

The parties dispute what standard of review should apply to the course of employment issue. Hercules contends that, because the facts relevant to the course of employment issue are all undisputed, only the legal determination of whether those facts meet the course of employment standard remains for us on appeal. Hercules argues that we should review this purely legal question de novo. Mrs. Beech, on the other hand, cites Fifth Circuit precedent for the proposition that “[w]hether or not an employee acted within the scope of his employment is a question for the factfinder,” warranting clear error review. See Smollen v. United States, 1995 WL 29214, at *4 (5th Cir. Jan. 11, 1995) (per curiam) (unpublished but precedential under Fifth Circuit Rule 47.5.3) (“Where there is a fact issue as to the ‘course and scope’ of an employee in performing a particular task which may give rise to an issue of liability upon the part of the master, that issue should be submitted for the jury's determination.”) (quoting Ryder Truck Rentals v. Latham, 593 S.W.2d 334, 336–37 (Tex.Ct.App.1979)). Hercules counters that Smollen and Ryder Truck Rentals do not stand for the proposition that we always review course of employment issues for clear error. Instead, those cases both emphasize that “where there is a fact issue” as to scope of employment, clear error applies. Because there are no such fact issues in this case, Hercules argues that de novo review is appropriate, Smollen and Ryder Truck Rentals notwithstanding.

We resolved this question in Hussaini v. Marine Transp. Lines, Inc., a persuasive, though unpublished, opinion:

Determinations of scope of employment, and, thus, vicarious liability, are most accurately characterized as mixed questions of law and fact because they involve legal conclusions based upon factual analysis. Mixed questions should be reviewed under the clearly erroneous standard if factual questions predominate, and de novo if the legal questions predominate.

When, however, the district court has plainly identified its findings of fact, separately and distinctly from its legal conclusions, we may properly proceed with de novo review of the legal conclusions, even if the underlying facts are in dispute. This does not encroach upon the district court's factfinding function, but rather fulfills our obligation to review the interpretation and application of the law. In such instances, the “mixed” questions of law and fact have been “unmixed” by the district court, enabling us to review the factual components under the clearly erroneous standard, and the legal components de novo.

158 F.3d 584 (5th Cir.1998) (unpublished) (citations omitted). De novo review is even more clearly appropriate here, where all of the facts are settled and undisputed, leaving us only with the familiar task of applying the law to the facts.

III.

1.

We review the Jones Act briefly before proceeding to the merits. Prior to its enactment, seamen could not recover against their employers for either the employer's own negligence or the negligence of a fellow crew member. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903) (overruled by the Jones Act, now codified at 46 U.S.C. § 30104). Instead, seamen were limited to compensation under the general maritime law, which included only two theories of recovery, both of which are still available today: unseaworthiness, and maintenance and cure. Id. at 175–76, 23 S.Ct. 483. Unseaworthiness is a claim under general maritime law “based on the vessel owner's duty to ensure that the vessel is reasonably fit to be at sea.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001) (citing Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960)). “A claim for maintenance and cure concerns the vessel owner's obligation to provide food, lodging, and medical services to a seaman injured while serving the ship.” Id. (citing Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527–28, 58 S.Ct. 651, 82 L.Ed. 993 (1938)).

In 1920, Congress enacted the Jones Act to create “a negligence cause of action for ship personnel against their employers.” Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 843 (5th Cir.2005) (citations omitted). It provides:

A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.

46 U.S.C. § 30104. By incorporating “[l]aws of the United States regulating recovery for personal injury to, or death of, a railway employee,” the Jones Act extends the protections of the Federal Employer's Liability Act (“FELA”)¹ to seamen, and thus FELA case law applies to Jones Act cases. Id.; see also Withhart, 431 F.3d at 843 (“In passing the Jones Act, Congress did not specifically enumerate the rights of seamen, but extended to them the same rights granted to railway employees by FELA.”) (citing Cox v. Roth, 348 U.S. 207, 208, 75 S.Ct. 242, 99 L.Ed. 260 (1955)).

The Supreme Court has consistently held that the Jones Act is “ ‘entitled to a liberal construction to accomplish its beneficent purposes,’ ” which is to “provide for ‘the welfare of seamen.’ ” See, e.g., Cox, 348 U.S. at 210, 75 S.Ct. 242 (quoting Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 790, 69 S.Ct. 1317, 93 L.Ed. 1692 (1949)). Liberal construction is necessary because of the seaman's broad and perilous job duties:

Unlike men employed in service on land, the seaman, when he finishes his day's work, is neither relieved of obligations to his employer nor wholly free to dispose of his leisure as he sees fit. Of necessity, during the voyage he must eat, drink, lodge and divert himself within the confines of the ship. In short, during the period of his tenure the vessel is not merely his place of...