Coutee v. Global Marine Drilling Co.

• Citation: 895 So.2d 631
• Decision Date: 16 February 2005
• Docket Number: No. 2004-1293.,2004-1293.
• Parties: Delton COUTEE v. GLOBAL MARINE DRILLING COMPANY.
• Court: Supreme Court of Louisiana

895 So.2d 631

Delton COUTEE v. GLOBAL MARINE DRILLING COMPANY.

No. 2004-1293.

Court of Appeal of Louisiana, Third Circuit.

February 16, 2005.

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Delos E. Flint, Jr., George J. Fowler, III, Lawrence R. Demarcay, III, Fowler, Rodriguez & Chalos, New Orleans, LA, for Defendant/Appellee — Global Marine Drilling Company.

Eugene A. Ledet, Jr., Rivers, Beck, Dalrymple & Ledet, Alexandria, LA, for Plaintiff/Appellant — Delton Coutee.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.

THIBODEAUX, Chief Judge.

In this Jones Act negligence case, plaintiff, Delton Coutee, appeals the judgment of the trial court in favor of defendant, Global Marine Drilling Company (Global Marine). The trial court concluded that Mr. Coutee failed to prove that the Global Marine vessel from which he fell was unreasonably unsafe for its intended purposes under the Jones Act. The trial court also found that Mr. Coutee was entitled to a cure award of $1,885.11, but that Global Marine paid Mr. Coutee $17,633.00 in settlement advances which offset the cure award; thus, Mr. Coutee is not entitled to attorney fees in conjunction with his cure award.

For the following reasons, we reverse the judgment of the trial court with respect to its finding that failure to provide hand/guard rails was not negligence per se and finding that Global Marine was not callous and recalcitrant, arbitrary and capricious, or willful, callous, and persistent when it refused to pay Mr. Coutee the amount of cure benefits to which he was entitled. We award $10,000.00 in attorney fees for Global Marine's refusal. We further reverse the judgment of the trial court and find that Mr. Coutee sustained a back injury as a result of Global Marine's negligence per se and render judgment awarding $100,000.00 in general damages, $60,000.00 for past lost earnings, and $300,000.00 for future loss of earnings. We affirm the judgment with respect to its finding that the SALA block was not defective and that Mr. Coutee was entitled to additional cure benefits.

I. ISSUES

We shall consider whether:

(1) the trial judge erred in finding that Global Marine's failure to provide guardrails on the platform erected around the Blowout Preventer Stack (BPS), a regulatory safety violation, was excused due to storage space constraints and his use of a safety harness;

(2) the trial judge committed legal error by failing to strike the testimony of Dr. Rayland K. Beurlot; and,

(3) the trial court's refusal to award compensatory damages and attorney fees was error.

II. FACTS

Mr. Coutee filed suit against Global Marine under the Jones Act, 46 U.S.C.App. § 688. There is no dispute that Mr. Coutee fell off of the Blowout Preventer (BOP) stack on January 7, 2001, while working as a seaman on the drilling vessel Glomar Adriatic II (Glomar) on his third day of an eleven-day work period. The BOP stack is located underneath the drill floor and is used to control well pressure while drilling.

The BOP stack consists of several hydraulically-powered valves that are stacked one on top of the other. Customarily, crews working on the BOP stack use riding belts to climb the stack. When Mr. Coutee fell from the BOP stack, he was in the process of "nippling down" (removing) the BOP stack lubricator. The lubricator is attached to the BOP stack by a flange, or the "hydrill," by four large nuts and bolts. The hydrill is just above the lubricator. The lubricator equipment is also used to control pressure during wireline operations. It is common practice to change out the lubricator's bell nipple during drilling, completion, and wire line operations.

In an effort to assist its employees in the removal of the equipment located directly above the hydrill, Global attached a half-moon shaped platform that measured four feet long and one-and-a-half feet at its widest point. Use of the platform began in the 1990s. The platform was not permanently attached to the hydrill, but was held there by steel strapping. The form of attachment used made it possible to remove the platform when not in use. Don Jeffery Bass, who was employed by Global Marine as a night tool pusher at the time of Mr. Coutee's accident, testified that prior to using the temporary platform, employees had to perform the nipple down procedure while sitting down in a riding belt. Mr. Coutee testified that he was familiar with performing the nipple down procedure because it had to be done each time the rig completed drilling a well. The employees performing the nipple down procedure were also equipped with a safety harness that included an inertia reel. The inertia reel is set to stop the fall of a person when the speed of the fall from the platform reaches a certain velocity. Mr. Coutee agreed that having a platform to stand on made conducting the nipple down procedure easier.

On the day of the accident, Mr. Coutee and a co-employee, Eddie Bell, put on their safety harnesses and climbed onto the platform deck to nipple down the lubricator. To loosen the bolts, a hammer wrench is used. The process of removing the flange involved attaching the wrench to the bolt with the proper "bite" and pulling on the wrench to get the bolt loose. Next, a rope is tied to the handle of the wrench and while one worker holds the bite of the wrench on the bolt, the other uses the sledge hammer to hit and break the bolt. Mr. Coutee testified that if the person holding the rope on the handle of the wrench leans forward, the bite that the wrench has on the bolt is released which may cause that person to lose his balance. In the present case, three of the four flange bolts were successfully removed using the above equipment and process. However, the fourth bolt could not be removed using the hammer wrench; therefore, a pipe wrench was used instead. Mr. Coutee also testified that he did not use a rope when trying to remove the fourth bolt. Instead, he used only his hands to pull on the pipe wrench. In the process of loosening the bolt, Mr. Coutee lost his balance and fell approximately four feet from the platform before the inertia reel stopped his fall. Mr. Coutee asserts that the inertia reel of his safety harness did not work properly, causing him to fall lower and faster than he should have, and that platform was dangerous due to the lack of handrails.

Mr. Coutee indicated on an accident report that his complete body was sore. He also stated that his neck, back and hip, both the right and left sides, were affected by the fall. After his eleven days on the rig, Mr. Coutee testified that his level of pain increased. He saw several physicians and underwent numerous diagnostic tests for his pain. Global Marine referred Mr. Coutee to his first physician, Dr. Robert Smith, an industrial medicine specialist. He was first seen on January 29, 2001. By November 2001, Dr. Smith determined that Mr. Coutee had reached maximum medical improvement (MMI). While treating with Dr. Smith, Mr. Coutee had been seen by Dr. Lawrence Drerup, a neurosurgeon, had his records reviewed by Dr. Stephen Cavanaugh, another neurosurgeon, and had undergone a functional capacity examination at the Fontana Center in Lafayette, Louisiana. Dr. Cavanaugh reviewed Mr. Coutee's medical records after Global Marine denied Mr. Coutee's and Dr. Smith's request that he be seen by Dr. John Cobb, an orthopedic surgeon. Global Marine denied Dr. Smith's recommendation that Dr. James Quillin, a psychologist, examine Mr. Coutee.

In March 2002, Mr. Coutee applied for employment with the Rapides Parish Police Jury (Police Jury) as an equipment operator. In connection with the application he was required to undergo a pre-employment physical and on March 26, 2002, Mr. Coutee saw Dr. Smith for the physical. Although Dr. Smith knew of Mr. Coutee's previous accident and complaints of pain, he administered the standard pre-employment physical that he conducts for any applicant. Dr. Smith testified that Mr. Coutee told him that he was doing well and did not complain of any back pain. Based upon the results of the physical and a lift evaluation, Mr. Coutee was cleared to return to work at a very heavy physical demand level. The Police Jury employment was for a particular project and at its conclusion in the latter part of 2002, Mr. Coutee was laid off.

Although he was able to pass the pre-employment physical which indicated that he had the capacity to engage in very heavy physical labor, Mr. Coutee continued to see doctors complaining about back pain. On February 12, 2003, he saw Dr. Miguel Garcia, an internal medicine specialist who treated his complaints of pain with steroid injections. He was also seen by Dr. Cobb who recommended that Mr. Coutee undergo surgery to relieve his pain. Dr. Quillin diagnosed Mr. Coutee with major episodic depression, moderate secondary to persistent pain and chronic pain syndrome secondary to an occupational injury. Dr. Quillin also found that although Mr. Coutee reported high levels of pain, he had excellent resumption of general activities and noted that this type of pain adjustment was not normal. Subsequent to his release by Dr. Smith in November 2001, Mr. Coutee paid for his own medical diagnostic tests and treatment.

After hearing all of the evidence, the trial court found that Mr. Coutee was entitled to a maintenance and cure award of $1,885.11 for his visits with Drs. Cobb, Garcia and Quillin, for which he personally paid. There is no dispute that Global Marine continued to pay Mr. Coutee his wages from the time of his accident until Dr. Smith declared him to be at MMI. The trial court concluded that Global Marine is entitled to a credit equal to $1,885.11, the amount of the cure award, due to its payment of wages to Mr. Coutee. Further, the trial court did not find that Mr. Coutee was entitled to an award of attorney fees for Global Marine's failure to pay the $1,885.11 for...