Bergeron v. Main Iron Works, Inc.

• Decision Date: 30 May 1990
• Citation: 563 So.2d 954
• Parties: George P. BERGERON, Jr. v. MAIN IRON WORKS, INC. and Offshore Express, Inc. CA 89 0660. 563 So.2d 954
• Court: Court of Appeal of Louisiana — District of US

Page 954

563 So.2d 954

George P. BERGERON, Jr. v. MAIN IRON WORKS, INC. and Offshore Express, Inc.

CA 89 0660.

563 So.2d 954

Court of Appeal of Louisiana First Circuit.

May 30, 1990.

Rehearing Denied July 30, 1990.

Darryl J. Tschirn, Metairie, for plaintiff and appellant George P. Bergeron, Jr.

Joseph A. Reilly, Jr., Houma, for defendant and appellant Offshore Express, Inc.

Morgan Wells, Metairie, for intervenor, Main Iron Works, Inc. Miles P. Clements, New Orleans, amicus curiae--OMSA Offshore Marine Service Ass'n.

Before EDWARDS, LANIER and FOIL, JJ.

FOIL, Judge.

In this negligence action against a vessel owner, we are asked to review the action of the trial court in granting in part, and denying in part, a motion for a judgment notwithstanding the verdict following a jury trial. We hold that the trial court erred in refusing to grant the JNOV on the issue of liability, and reverse.

Plaintiff, George Bergeron, Jr., was injured on March 26, 1986, when he slipped and fell in a cargo fuel tank while carrying out repair operations aboard the M/V Green Canyon Express. He filed this lawsuit against his employer, Main Iron Works, Inc. and Offshore Express, Inc., the owner of the vessel, seeking damages under the Jones Act and under the Longshore and Harbor Workers' Compensation Act (LHWCA). Plaintiff later dismissed Main Iron Works from the suit. Reliance Insurance Company, Main Iron Works' compensation carrier, intervened in the suit, seeking reimbursement for compensation benefits and medical expenses it paid to and on behalf of Bergeron under the LHWCA.

Offshore Express filed a motion for summary judgment on the issue of liability, which was denied by the trial court, and the case was tried before a jury. At the close of plaintiff's evidence, defendant moved for a directed verdict, which was denied by the trial court. At the conclusion of the evidence, the jury found defendant liable to plaintiff, concluding it was 100% at fault in causing plaintiff's injuries. The jury itemized plaintiff's damages, awarding him over $700,000.00, and the trial court entered judgment in accordance with the verdict. Thereafter, defendant filed a motion for JNOV, contesting the jury's liability finding, its failure to find plaintiff at fault in causing the injury, as well as its awards for medical expenses and future wages. It also filed motions for a new trial and in the alternative, a remittitur. The trial court denied the motion for JNOV on the issue of the defendant's liability, but granted it on the remaining issues, finding plaintiff 25% at fault in causing his injuries, and lowering the awards for medical expenses and future wages. The trial court denied the other motions, and entered judgment in accordance with its rulings. In addition, the trial court reduced the amount to which the compensation carrier was entitled by the percentage of fault attributed to plaintiff.

This appeal, taken by all parties in this litigation, followed. Defendants appeal the failure of the trial court to enter a JNOV on the issue of its liability. Plaintiff appeals the trial court's granting of the JNOV in all respects. Finally, Reliance appeals the reduction of its reimbursement award. We hold that the trial court erred in failing to grant the JNOV on the issue of liability, and therefore pretermit discussion of all other issues raised in this appeal.

JNOV

In ruling on a motion for JNOV under La.Code Civ.P. art. 1811, the trial court is required to employ the following legal standard: A JNOV should only be granted if the trial court, after considering all of the evidence in the light most favorable to the party opposed to the motion, finds it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on the issue. However, if there is substantial evidence of such quality and weight that reasonable persons might reach different conclusions, the motion must be denied. Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir.1969); Cosie v. Aetna Casualty & Surety Insurance Co., 527 So.2d 1105, 1107 (La.App. 1st Cir.1988); Robertson v. Penn, 472 So.2d 927, 929 (La.App. 1st Cir.), writ denied, 476 So.2d 353 (La.1985). On appeal, the findings of the jury are reviewed under this standard. Woods v. Sammisa Company, Ltd., 873 F.2d 842, 846 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 853, 107 L.Ed.2d 847 (1990). The trial judge's action in granting a JNOV, thereby altering the factual finding of the jury, is governed by the manifest error or abuse of discretion standards. See Cosie v. Aetna Casualty & Surety Insurance Co., 527 So.2d at 1107 (employing a manifest error test); Robinson v. Bump, 894 F.2d 758 (5th Cir.1990) (employing an abuse of discretion test).

LIABILITY OF THE VESSEL OWNER

Because plaintiff is an employee covered under the LHWCA, his exclusive remedy for personal injury against the owner of the vessel is a negligence action. 33 U.S.C. Sec. 905(b). In order to establish vessel negligence, the plaintiff must prove that the vessel owner violated or breached a duty owed to him. Lormand v. Superior Oil Company, 845 F.2d 536, 541 (5th Cir.1987), cert. denied, 484 U.S. 1031, 108 S.Ct. 739, 98 L.Ed.2d 774 (1988).

The responsibility of a ship owner to the employees of a ship repairer under the LHWCA is well defined in the federal jurisprudence. In Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court delineated the scope of respective duties owed to a longshoreman by the vessel owner and stevedore under 33 U.S.C. Sec. 905(b). The three principles, articulated in Scindia, have been extended to govern the respective duties of a shipowner and a ship repairer to an injured employee of the ship repairer. See Hill v. Texaco, Inc., 674 F.2d 447 (5th Cir.1982). In Hill, the Fifth Circuit summarized these principles as follows:

... First, before the stevedore begins his work, a shipowner must exercise care to make safe the portions of the ship that it turns over to the stevedore. In discharging this duty the ship may rely on the stevedore's performing its task with reasonable care. The shipowner must also warn the stevedore of hidden unsafe conditions on the ship of which the ship is, or should be, aware.

Second, once the stevedore begins its operations, the shipowner has no general duty to supervise work or to inspect the area assigned to the stevedore, unless custom, contract, or law imposes such a duty on the shipowner. The shipowner need not monitor the stevedore's operations; rather, the shipowner is entitled to rely on the stevedore's expertise and reasonableness.

Third, the Supreme Court made an exception to the general absence of a duty of the shipowner to protect employees of the stevedore during cargo operations. The duty arises when two conditions are fulfilled. If the shipowner becomes aware during the stevedore's work that the ship or its gear poses a danger to the longshoremen, and if the shipowner also learns that the stevedore is acting unreasonably in failing to protect the longshoremen against the danger, then the shipowner acquires a duty to intervene and protect the longshoremen. The shipowner can have knowledge of a defect if the defect develops during the stevedore's operations and the shipowner has actual knowledge, or if the defect exists at the outset and the ship "must be deemed" to have knowledge of it. [Citations and footnotes omitted] 674 F.2d at 451.

In Randolph v. Laeisz, 896 F.2d 964 (5th Cir.1990), the court stated that two tenets underlie the distribution of the respective duties of the vessel owner and the stevedore to the employees of the stevedore. First, the shipowner may rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards, and second, the vessel owner owes to the stevedore and his longshoremen employees the duty to exercise reasonable care under the circumstances. The court stressed that the "basic principle which emerges from Scindia is that the primary responsibility for the safety of the longshoremen rests upon the stevedore." Id. at 970.

With these precepts in mind, we now review the evidence presented at trial. While an employee of Main Iron Works, a ship repair yard, plaintiff was injured when he slipped and fell in the cargo fuel tank aboard the M/V Green Canyon Express during repair operations. Defendant, Offshore Express is the owner of the vessel. The Green Canyon Express is an offshore supply vessel designed principally to transport supplies to offshore production and drilling facilities. By design, the vessel contains numerous storage tanks below the deck, including among others, a liquid mud tank, a dry bulk cement tank, and a diesel fuel cargo tank. A manhole and a stationary ladder provide entrance into and egress from the cargo fuel tank. The cargo fuel tank has a sloped, inclined floor made of smooth steel.

In late March of 1986, the vessel struck a submerged pipeline, causing damage to its hull. The vessel was taken to Main Iron Works where it was dry docked to determine the extent of the damage and the requisite repairs.

While at the repair facility, an Offshore Express representative and a Main Iron Works foreman surveyed the damage and determined that there was damage to the bottom shell plating of the diesel fuel cargo tank. Because this repair operation would necessitate actually entering the cargo fuel tank and cutting out and replacing the damaged plate, Main Iron Works first had to "gas-free" the fuel tank.

Various witnesses testified regarding the gas-freeing process. This process, performed by the ship repairer, is required in order to perform "hot work," such as welding and cutting with a torch in a fuel tank, and entails ridding the tank of all gas and gas vapors. Essentially, after draining the tank, a Main Iron Works cleaning crew would enter and wash it down with degreaser and...