Delahoussaye ex rel. Delahoussaye v. Performance Energy Servs., L.L.C.

• Decision Date: 24 October 2013
• Docket Number: No. 12–31222.,12–31222.
• Parties: Scott Joseph DELAHOUSSAYE, individually and on behalf of Dylan Joseph Delahoussaye, Plaintiff–Appellant Cross–Appellee v. PERFORMANCE ENERGY SERVICES, L.L.C.; One Beacon Insurance Company, Defendants–Appellees Cross–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

734 F.3d 389

Scott Joseph DELAHOUSSAYE, individually and on behalf of Dylan Joseph Delahoussaye, Plaintiff–Appellant Cross–Appellee

v.PERFORMANCE ENERGY SERVICES, L.L.C.; One Beacon Insurance Company, Defendants–Appellees Cross–Appellants.

No. 12–31222.

United States Court of Appeals,Fifth Circuit.

Oct. 24, 2013.

David Lawrence Bateman, Esq., Bateman Law Firm, Baton Rouge, LA, Barton Willis Bernard, Esq., Lafayette, LA, for Plaintiff–Appellant Cross–Appellee.

Anthony John Staines, Esq., Jason Robert Kenney, Esq., Corey Patrick Parenton, Esq., Staines & Eppling, A.P.L.C., Metairie, LA, for Defendants–Appellees Cross–Appellants.

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

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Scott Joseph Delahoussaye sued several parties, including Cross–Appellants Performance Energy Services, L.L.C. (“Performance”) and One Beacon Insurance Company (“One Beacon”),¹ for damages stemming from personal injury that Delahoussaye sustained while working on a fixed platform located in the Gulf of Mexico. After the other parties settled, the suit proceeded to a bench trial, and the district court found Performance 15% at fault for the accident that caused Delahoussaye's injury and awarded Delahoussaye, inter alia, $200,000 in general damages. On appeal, Delahoussaye challenges the district court's allocation of fault, while Performance challenges the amount of general damages that the district court awarded Delahoussaye as well as the court's ruling that Performance employee Shalico Andow was not a “borrowed employee” of another contractor or the platform owner. We AFFIRM the judgment allocating liability, but because the award of general damages is excessive as a matter of law, we VACATE and REMAND the general damages award and order REMITTITUR.

BACKGROUND

Pisces Energy, LLC (“Pisces”) is the owner of the Mustang Island 739–A Platform (“Platform”) located in the Gulf of Mexico off the coast of Texas. In August 2009, Pisces retained several independent contractors to perform work-over recompletion on the Platform, including Crescent Drilling Foreman, Inc. (“Crescent”), which provided Richard John Boutte as an on-site consultant for the project; Performance, for which Andow worked as a crane operator; and Warrior Energy Services, LLC (“Warrior”), which supplied a crew to perform coiled tubing work and other operations on the Platform. Delahoussaye worked on the Platform as part of the Warrior crew.

On August 22, in order to create more room on the Platform, Boutte decided to backload some equipment from the Platform onto an adjacent vessel. Boutte instructed Delahoussaye to serve as a flagman on the vessel as Andow operated a crane to lower the equipment from the Platform onto the vessel's deck. When Andow first attempted the lift, he could not see the vessel from his vantage point on the crane. Andow stopped the lift and asked that the vessel be moved farther from the Platform so that he could see the vessel more clearly. However, Boutte stated that he wanted to carry on with the blind lift and would act as signalman, relaying directions to Andow on how to move the load. The blind lift proceeded with Boutte standing by the Platform handrail, signaling Andow. At some point during the lift Boutte walked away from the handrail but continued to give Andow the signal to lower the load onto the vessel. Andow could see that Boutte did not have a clear view and had lost visual contact with the load for thirty to forty-five seconds. Andow, however, continued to follow Boutte's hand signals to lower the load. As the load descended, it hit other equipment on the deck of the vessel and jarred a handrail free. The handrail struck Delahoussaye on the head and shoulder; he was thrown approximately twenty feet and knocked unconscious for a few moments. After the accident, Delahoussaye was treated for chronic pain and diagnosed with degenerative disk disease, a back injury at L5–S1, an annular tear, and foraminal stenosis.

Delahoussaye filed suit against Pisces and eventually added Crescent, Boutte, Performance, and Performance's liability insurer, One Beacon, as defendants. After the summary judgment phase of litigation, Delahoussaye settled with Pisces, Crescent, and Boutte. The matter proceeded to a bench trial, and the district court found that Boutte (i.e., Crescent) was 85% at fault in causing Delahoussaye's injuries, and Andow (i.e., Performance) was 15% at fault. The court also awarded Delahoussaye $786,824.66 in damages, including $200,000 in general damages, which made Performance, as Andow's employer, liable to Delahoussaye for $118,023.69 of the total amount. Delahoussaye and Performance both timely appealed the judgment.

STANDARD OF REVIEW

When reviewing a bench trial, this court reviews findings of fact for clear error and legal issues de novo. Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 488 (5th Cir.2006). Factual findings are clearly erroneous if “(1) the findings are without substantial evidence to support them, (2) the court misapprehended the effect of the evidence, and (3) although there is evidence which if credible would be substantial, the force and effect of the testimony, considered as a whole, convinces the court that the findings are so against the preponderance of credible testimony that they do not reflect or represent the truth and right of the case.” Id. To reverse for clear error, this court must have “a definite and firm conviction that a mistake has been committed.” Canal Barge Co. Inc. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir.2000).

DISCUSSION

I. Allocation of Fault

According to Delahoussaye, the evidence shows that Andow was more culpable for Delahoussaye's injuries than Boutte, and, therefore, Andow should be 85% at fault, whereas Boutte's allocation should be only 15%. A district court's allocation of fault is reviewed for clear error. McCuller v. Nautical Ventures, L.L.C., 434 Fed.Appx. 408, 415 (5th Cir.2011). “Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” In re Cardinal Servs., Inc., 304 Fed.Appx. 247, 251 (5th Cir.2008) (internal quotation marks omitted) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573–74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

Delahoussaye's expert testified at trial that once a crane operator is given a signal from a signalman, the crane operator is generally responsible for completing that task until a different signal is given. It is undisputed that Boutte gave Andow no other signal than the come-down signal until after the accident occurred. Delahoussaye's expert also testified that the accident occurred because Boutte left his position on the Platform and continued to signal Andow without actually seeing where the load was going. Performance's expert similarly testified that the accident was caused because of the hand signals that Boutte gave Andow. He stated that Andow was to assume that Boutte knew it was safe to lower the load and continue following Boutte's come-down signal until Boutte directed otherwise because it could be dangerous for a crane operator to stop his load without his signalman instructing him to do so. Furthermore, a certified rigger and eyewitness to the accident testified at trial that when a signal is given to a crane operator, the crane operator is expected to follow that signal. In light of the evidence presented at trial, it was not implausible for the court to find that Boutte, as the designated signalman for the blind lift, was significantly more at fault for Delahoussaye's injuries than was Andow. Because the district court took a permissible view of the evidence in finding Andow only 15% at fault, we will not alter its determination.

II. The Borrowed Employee Doctrine

In an effort to exonerate itself from fault, Performance argues that the district court erred when it found that Andow was not a borrowed employee of Pisces, Crescent, or Boutte at the time of Delahoussaye's accident. “[A]n employer will be liable through respondeat superior for negligence of an employee he has ‘borrowed[.]’ ” Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir.1977). The borrowed employee doctrine “is the functional rule that places the risk of a worker's injury on his actual rather than his nominal employer.” Baker v. Raymond Int'l, Inc., 656 F.2d 173, 178 (5th Cir.1981). Whether Andow was a borrowed employee is a question of law, though in some cases factual disputes must be resolved before the district court can make this determination. See Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir.1993).

There is no indication in the record that Performance argued before the district court that Andow was a borrowed employee of Pisces. In the district court, Performance contended that Crescent or Boutte were borrowing employers, and the court ruled against Performance. “It is the unwavering rule in this Circuit that issues raised for the first time on appeal are reviewed only for plain error.” McCann v. Tex. City Refining, Inc., 984 F.2d 667, 673 (5th Cir.1993). Under the plain error standard, this court may correct “a plain forfeited error affecting substantial rights if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1424 (5th Cir.1996) (en banc) (superseded by statute on other grounds). Performance does not assert that its failure to raise the defense concerning Pisces in the trial court warrants reversal under the plain error standard, nor is there evidence suggesting that Performance's error seriously affects judicial fairness, integrity, or public reputation. Perhaps recognizing this deficiency, Performance has failed to clearly assert on appeal who was Andow's borrowing employer. Instead, as admitted by its counsel during oral...