Ellender v. Texaco, Inc.

• Decision Date: 22 December 1982
• Docket Number: No. 82-341,82-341
• Citation: 425 So.2d 291
• Parties: Ira K. ELLENDER v. TEXACO, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 291

425 So.2d 291

Ira K. ELLENDER v. TEXACO, INC.

No. 82-341.

Court of Appeal of Louisiana, Third Circuit.

Dec. 22, 1982.

Rehearings Denied Feb. 4, 1983.

Stockwell & Associates, Robert W. Clements, Lake Charles, for defendant-appellant-appellee.

Jones, Jones & Alexander, Glenn W. Alexander, Cameron, for plaintiff-appellee.

Before DOMENGEAUX, FORET and LABORDE, JJ.

LABORDE, Judge.

Ira K. Ellender brings this action under the Jones Act, 46 U.S.C.A. Sec. 688, and General Maritime Law against Texaco, Inc., his employer, for injuries sustained while he was working as a roustabout in Texaco's East Hackberry Field in Cameron Parish. Joined as a party defendant is American Motorist Insurance Company, the liability insurer of Texaco.

The case was tried before a jury which returned a verdict in favor of Ellender and against Texaco and American for the sum of $700,000.00. Texaco and American appeal this jury verdict. Ellender answers and appeals the lower court's decision to award legal interest only from the date of judgment rather than from the date of judicial demand. We affirm the verdict rendered by the jury and the court's decision to award legal interest only from the date of judgment.

The following issues are raised in this appeal:

1) Whether the jury erred in concluding that Ellender sustained an injury as a result of an accident occurring on October 27, 1977?

2) Whether the jury erred in concluding that the M/V "Bret B" was unseaworthy and that such unseaworthiness was a legal cause of Ellender's accident?

3) Whether the jury erred in concluding that Texaco was negligent and that such negligence was a legal cause of Ellender's accident?

4) Whether the jury erred in concluding that Ellender was not negligent?

5) Whether the jury erred by rendering an excessively high award in favor of Ellender?

6) Whether the trial court erred by allowing legal interest only from the date of judgment rather than from the date of judicial demand?

FACTS

Ira K. Ellender was employed by Texaco as a head roustabout in Texaco's East Hackberry Field situated in Cameron Parish. The East Hackberry Field is comprised almost entirely of an area within Calcasieu Lake. The field contains a large number of producing oil and gas wells, compressor stations, a tank battery, connecting flow lines and pipelines.

Most of the work done in this field is performed on the water. Texaco uses a 45 foot-long workboat, the M/V "Bret B" to perform work on the water. In addition, a 50' X 100' roustabout barge is provided with the M/V "Bret B".

On October 27, 1977, Ellender was the head roustabout in a crew that had been assigned the job of replacing a 2 7/8"' flowline from Well No. 69 to a separator station. The well was located in the middle of the lake and the flowline ran in a southwesterly direction from the well to the edge of the spoil bank where the Calcasieu Ship Cannel had been dredged out over the years. At the edge of the spoil bank the line made a turn to the north along the edge of the lake and went northerly towards the separator station which was situated off the spoil bank in the water.

The flowline to be replaced was approximately 5,000 feet in length, with the last 800-1000 feet lying along the spoil bank in an area that was hilly or sandy in some areas and marshy, muddy and boggy in others. The lines consisted of joints of steel tubing 2 7/8"' in diameter, measuring 30-31 feet in length, threaded on each end with the successive joints of pipe being screwed into each other. The pipe weighed approximately 190-210 pounds per joint.

The line was laid over a period of 2 or 3 days with the use of the M/V "Bret B" and roustabout barge. The pipe was first loaded onto the barge by use of a winch truck located on the barge and then hauled to the well-site where the line originated. It was laid off the back end of the barge and lowered into the water one joint at a time. As the boat and barge were moved forward, another joint of pipe was screwed into the last one which was strung off the barge. Then the vessel would move forward again and another joint would be screwed in. This operation continued until the boat and barge had proceeded southwesterly toward the spoil bank as close as they could in the progressively shallower water--approximately 1200 feet from the bank.

When the vessel could go no further because of the low water depth, another mechanical operation was commenced to continue stringing the pipe toward the spoil area. In this operation, the barge and vessel were first spudded securely into place so they would not move. The pipe was then pushed toward the bank by use of the winch truck. Two empty drums were strapped to the first joint of pipe for flotation. Then additional joints were screwed on and, as each joint was connected, the line was pushed on out into the water by use of the winch truck and line and a block and tackle system.

Finally, after the string of pipe was as close to shore as it would go and this part of the operation was completed, there remained approximately 800-1000 feet of line to lay from the edge of the spoil bank, across the marsh, to the separator station, which was out in the water.

Texaco provided no mechanical equipment to complete this last portion of the assigned job. Instead, a contract labor crew of four laborers was hired to work with Ellender and one other Texaco roustabout. Ellender and his co-workers were required to lift the 190-210 pound pipe to their shoulders and then haul the pipe across the marsh. Halfway through this portion of the job, Ellender stumbled while carrying a joint of pipe. Ellender felt a stinging sensation down his leg and across the lower part of his back but he was able to continue his work. At the end of the working day, Ellender reported the accident to the Texaco foreman on duty. An accident report was completed that afternoon.

Over the next couple of days, Ellender began experiencing increasing pain in his back. He went to the emergency room of West Calcasieu-Cameron Hospital but was not admitted. Ellender consulted his family physician who referred him to an orthopedic surgeon. Over the next two years Ellender had three major surgeries performed on his back including a disc removal, a fusion and finally a decompressive laminectomy.

Ellender instituted this suit on November 15, 1979, under the Jones Act and General Maritime Law to recover damages for the injuries he suffered. After a four day jury trial beginning on February 17, 1982, a verdict was returned in favor of Ellender and against Texaco and its liability insurer, American Motorists Insurance Company.

Texaco and American appeal this adverse verdict assigning five errors in the jury's verdict. Ellender answers this appeal and appeals the ruling of the trial court which denied legal interest from the date of judicial demand.

SCOPE OF REVIEW

We recognize at the outset our limited role in reviewing this jury verdict. Although this court is constitutionally authorized to review both the law and the facts in civil cases, under Federal Law and jurisprudence, which we must apply in cases applying Federal Statutes and federal maritime law, the jury's finding of facts cannot be disturbed by an appellate court unless there is no reasonable evidentiary basis for the jury's conclusions. Rains v. Diamond M. Co., 396 So.2d 306 (La.App. 3rd Cir.1981); Trahan v. Gulf Crews, Inc. 260 La. 29, 255 So.2d 63 (La.1971). Noting this scope of review we proceed to consider the assignments of error urged by defendants, Texaco and American.

ASSIGNMENT OF ERROR # 1

Texaco's first assignment of error is that the jury erred in its finding that Ellender sustained an injury as a result of an accident occurring on October 27, 1977. Texaco relies heavily on the testimony of Harold Fry, Ellender's co-worker. Fry testified that he did not see Ellender experience any difficulty during the entire period Ellender was carrying the pipe nor did Ellender tell him that he had hurt himself in any way. Texaco asserts that no one person corraborated Ellender's claim that he had hurt himself on the job on October 27, 1977.

Contrary to Fry's testimony was Ellender's testimony. Ellender described the procedure of hauling the heavy pipe over the somewhat treacherous terrain. He described how the marsh was full of bog holes, ruts and muddy spots and he further described how he stepped into a hole or rut which almost caused him to stumble. When Ellender adjusted or caught himself to keep from stumbling he felt the burning sensation in his leg and back.

Ellender's credibility was bolstered by the testimony of Jack Lambert, the Texaco foreman on duty. Lambert testified that he believed Ellender got hurt just like he said. Another Texaco employee, Francis Lyons, who was not in the crew hauling the pipe but who was at the dock the afternoon Ellender and his crew came in, testified that he saw Ellender coming up the steps of the M/V "Bret B" holding his back like he had a catch in it. When Lyons asked Ellender what happened Ellender replied, "he'd slipped while carrying a joint of pipe". Finally Dr. Williams G. Akins, Ellender's treating physician, testified that the accident as related to him by Ellender, was consistent with the injuries found.

We conclude that this testimony forms a reasonable evidentiary basis for the jury's conclusion. For this reason Texaco's assignment of error is without merit.

ASSIGNMENT OF ERROR # 2

Texaco's second assignment of error is that the jury erred in its finding that the M/V "Bret B" was unseaworthy and that such unseaworthiness was a legal cause of Ellender's accident and injury.

Under admiralty and general maritime law a shipowner owes the duty to furnish a vessel reasonably safe and fit for its intended purpose. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed. 941 (1960). This duty to prevent unseaworthy conditions is absolute, continuing and nondelegable. Allen v....