Fontenot v. Dual Drilling Co.

• Decision Date: 02 July 1999
• Docket Number: No. 97-31294,97-31294
• Citation: 179 F.3d 969
• Parties: John P. FONTENOT, individually and as natural tutor, on behalf of Ashley Nicole Fontenot, Wanda Renee Fontenot, and John Parish Fontenot, Jr., Plaintiff-Appellee, v. DUAL DRILLING CO., Defendants, ENSCO Platform Company, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 969

179 F.3d 969

John P. FONTENOT, individually and as natural tutor, on

behalf of Ashley Nicole Fontenot, Wanda Renee

Fontenot, and John Parish Fontenot, Jr., Plaintiff-Appellee, v. DUAL DRILLING CO., Defendants, ENSCO Platform Company, Defendant-Appellant.

No. 97-31294.

United States Court of Appeals, Fifth Circuit

July 2, 1999.

Lawrence N. Curtis, Curtis & Lambert, Lamont P. Domingue, Voorhies & Labbe, Lafayette, LA, for Plaintiff-Appellee.

Alan K. Breaud, Richard J. Guidry, Breaud & Lemoine, Lafayette, LA, for Defendant-Appellant.

Randy Jay Ungar, Randy J. Ungar & Associates, New Orleans, LA, for Mathis.

Appeal from the United States District Court for the Western District of Louisiana.

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendant-Appellant ENSCO Platform Company ("ENSCO") appeals the judgment for Plaintiff, John P. Fontenot ("Fontenot") in this personal injury action. We reverse and remand.

I. FACTS

Plaintiff Fontenot began employment with Weatherford-Enterra, Inc. ("Weatherford") in 1994. Fontenot is borderline mentally handicapped with an IQ of approximately 70. Fontenot's wife died in October 1995, after which he was assigned to work onshore to allow him to tend to his three minor children and personal affairs. Five months later, Weatherford assigned Fontenot to a crew conducting casing operations on a stationary platform on the Outer Continental Shelf offshore Louisiana. Fontenot was part of a "pick-up crew," referring to the fact that most of the crew members had not worked with each other on prior jobs and, more specifically, Fontenot was not a regular member of the crew.

Weatherford's crew was hired to run casing from the offshore platform into the hole of a well. Each joint of casing had to be filled with drilling "mud." Fontenot was assigned the job of mud valve operator. He was to instruct the driller, an ENSCO employee, when each joint of casing was full of drilling mud so that the driller could turn off the flow of mud into the joint.

Initially, the mudline and pump that were being used did not require the active participation of Fontenot. Then Weatherford's supervisor, Leo Meche ("Meche"), requested that ENSCO change the pump and line to speed up the process of filling casing with mud. The line and pump were changed, and the new line included a valve on the end of the mudline with a handle that could open and close the valve. Meche instructed Fontenot and other persons on the rig not to close the mudline valve at any time while the mud pump was running because it was dangerous to do so in light of the extreme pressure that could build up quickly in the line. Despite these instructions, Fontenot closed the mudline valve. Pressure built up, then was suddenly released, hurling Fontenot up into the derrick, badly injuring one of his fingers.

II. DISTRICT COURT PROCEEDINGS

On January 27, 1997, Fontenot, individually and on behalf of his three minor children, brought suit against ENSCO, alleging that he was injured due to the negligence of ENSCO. ENSCO answered, denying liability and affirmatively alleging comparative fault by Fontenot and "other parties." Subsequently, Weatherford and Weatherford's workers' compensation insurer filed a Complaint of Intervention seeking to enforce their rights of subrogation to recover amounts paid to or on behalf of Fontenot.

The case proceeded to a jury trial on September 15, 1997. The jury returned its verdict, finding Fontenot 25% at fault, ENSCO 75% at fault, and awarded total damages of $1,190,000 against ENSCO. The court entered judgment consistent with that verdict on October 3, 1997. ENSCO filed a motion for new trial, which was denied. ENSCO appealed.

III. ANALYSIS

A. QUANTIFYING FAULT

1. District court ruling and standards of review

ENSCO contended at trial that, pursuant to Louisiana tort law, the Jury Verdict Form should direct the jury to quantify Plaintiff's employer's fault. See LA.CIV.CODE ANN. art. 2323(A) (West 1997). The district court denied the request.

First, the trial court held that the Louisiana rule of comparative fault which requires quantification of employer fault is "inconsistent" with other federal law, specifically the Longshore and Harbor Workers Compensation Act, 33 U.S.C. §§ 901-950 ("LHWCA"), thereby precluding application of comparative fault to this case, pursuant to the Outer Continental Shelf Lands Act ("OCSLA"). The district court articulated two alternative bases for its denial of ENSCO's request to have the jury quantify employer fault: one, the evidence would not support a jury finding that Weatherford had any responsibility for Fontenot's accident and, two, ENSCO's request was not timely filed. We consider each ruling in turn.

ENSCO's challenge to the district court's holding that state and federal law are inconsistent raises a question of law, which we review de novo. See Reeves v. AcroMed Corp., 103 F.3d 442, 445 (5th Cir.1997). Likewise, we review de novo the district court's ruling that the evidence was insufficient to go to the jury on this issue. See FED.R.CIV.P. 50. We review the district court's decision that the request was untimely for abuse of discretion. See Emmons v. Southern Pacific Transp. Co., 701 F.2d 1112 (5th Cir.1983).

2. Is Louisiana law inconsistent with LHWCA?

ENSCO points out that LHWCA is silent on the question of quantification of employer fault and that no other federal law is inconsistent with Louisiana tort law. Fontenot, on the other hand, agrees with the district court, taking the position that LHWCA sets out a "loss allocation scheme" based on the rule of joint and several liability which is inconsistent with quantification of employer fault.

The OCSLA provides that when an employee is injured while on the Outer Continental Shelf exploring for natural resources, compensation shall be payable under the provisions of the LHWCA. See 43 U.S.C. § 1333(b). The OCSLA also provides:

To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations ... the civil and criminal laws of each adjacent State ... are hereby declared to be the law of the United States for that portion of the ... Outer Continental Shelf, and artificial islands and fixed structures erected thereon[.]

43 U.S.C. § 1333(a)(2)(A).

Under LHWCA, which is similar to other worker compensation schemes, an employer's liability to an employee who is injured on the job is essentially limited to payment of compensation. See 33 U.S.C. § 905(a). The LHWCA also allows the employee to recover for injuries resulting from the fault of third parties. See 33 U.S.C. § 933(a). The employee need not choose whether to receive compensation or to recover damages against a third person; he can do both. See id. Election of receiving compensation can operate as an assignment to the employer of the employee's cause of action against third parties. See 33 U.S.C. § 933(b). However, the employee has the exclusive right to bring the cause of action against the third party for six months after the incident. See id.

Where an injured employee recovers from a third party, the fund recovered is charged first for the cost of the recovery, including attorney fees, next for reimbursement of the compensation paid by the employer and finally, any additional recovery is paid to the injured employee. See 33 U.S.C. § 933(f). If the amount due as LHWCA compensation is more than the amount recovered against the third party, the employer remains liable to pay the difference. See id. The employer must give consent for any settlement between an employee and a third party which is less than the total amount of compensation owed in order for the employee to continue receiving compensation. See 33 U.S.C. § 933(g).

Typically, when the employee files suit against a third party, the employer will intervene to recover the amount of compensation paid, just as Weatherford did in this case. However, as ENSCO emphasizes, the LHWCA is silent on the issue of quantification of employer fault.

Louisiana Civil Code, art. 2323, as amended in April 1996 as a part of a package of tort reform by the Louisiana legislature, provides, in pertinent part:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

LA. CIV. CODE ANN. art. 2323(A).

Art. 2323(A) requires the fact finder to apportion fault among all negligent parties regardless of whether the plaintiff can recover from a particular party or not. Once the fact finder makes the apportionment, such fault shall not be reallocated to any other party. See LA. REV. STAT. ANN. 23:1104 (West Supp.1998) Therefore, fault must be attributed to a negligent employer even though the employer is immune from suit under the Louisiana Workers' Compensation Statute, LA. REV. STAT. ANN. 32:1023. See id. In Keith v. U.S. Fidelity & Guar. Co., 694 So.2d 180 (La.1997), the Louisiana Supreme Court held that the amendments of art. 2323(A) requiring the quantification of fault of all tortfeasors were procedural and therefore should be retroactively applied to torts occurring prior to the effective date of the amendments, April 16, 1996. Consequently, the fact that Fontenot's injury occurred on April 8, 1996, does not preclude the application of art. 2323(A) to this case. ¹ Thus, ENSCO argues that Weatherford's percentage of negligence should have been determined by the jury and allocated accordingly, reducing the proportion of ENSCO's liability.

The LHWCA contains no express language addressing the...