Gumpert v. Pittman Const. Co., Inc.

• Decision Date: 09 June 1999
• Docket Number: No. 98-CA-2269.,No. 99-CA-0709.,98-CA-2269.,99-CA-0709.
• Citation: 736 So.2d 1026
• Parties: Kenneth B. GUMPERT, Jr. and Aaron Hebert v. PITTMAN CONSTRUCTION CO., INC.
• Court: Court of Appeal of Louisiana — District of US

Page 1026

736 So.2d 1026

Kenneth B. GUMPERT, Jr. and Aaron Hebert v. PITTMAN CONSTRUCTION CO., INC.

No. 98-CA-2269.

No. 99-CA-0709.

Court of Appeal of Louisiana, Fourth Circuit.

June 9, 1999.

COPYRIGHT MATERIAL OMITTED

Donald F. deBoisblanc, New Orleans, Louisiana, and Catherine Leary, Avondale, Louisiana, Counsel for Plaintiffs.

Sidney W. Degan, III, R. Edward Blanchard, Degan, Blanchard & Nash, New Orleans, Louisiana, Counsel for Defendants/Appellants.

Robert I. Siegel, Michael B. Alker, Hoffman, Siegel, Seydel, Bienvenu & Centola, New Orleans, Louisiana, Counsel for Defendant/Appellee.

George J. Nalley, Jr., George J. Nalley, Jr., PLC, Metairie, Louisiana, Counsel for Intervenors/Appellees.

Court composed of Judge STEVEN R. PLOTKIN, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, Sr.

BAGNERIS, Judge.

Plaintiffs, Kenneth B. Gumpert, Jr. and Aaron Hebert, were injured when a floating platform on which they were standing fell while being lifted from the Mississippi River. At the time of the accident, plaintiffs were members of the Local 60 of the Plumbers and Pipe Fitters Union and were employed by defendant, Gallo Mechanical Contractors, Inc. (Gallo Mechanical). Plaintiffs were installing pipe under a riverfront wharf pursuant to a subcontract between Gallo Mechanical and codefendant, C.R. Pittman Construction Company (Pittman).¹ Under the terms of the subcontract Pittman provided Gallo with a "floating work platform" and a cherry picker which was to be used to load large diameter piping onto the barge. Pittman also provided Gallo with an operator for the cherry picker.

Prior to the accident, the platform on which the plaintiffs worked was lowered and raised daily into the river by a cherry picker. Plaintiffs were on the platform during the lowering and raising. On the day of the accident, the cherry picker was incapacitated and the plaintiffs were lifted from the river by a backhoe. When the operator of the backhoe attempted to remove the platform and the men from the river the cables tore, dropping the men into the river with the barge falling atop the men. Both men sustained injuries.

Initially, plaintiffs sued Pittman for negligence. Gallo Inc and Gallo Mechanical and their insurers intervened seeking reimbursement for benefits paid to plaintiffs. Pittman moved for summary judgment claiming that it was immune from suit under a statutory employer defense. After several supplements and oppositions such motion was denied. One year after filing its original petition plaintiffs amended it to include Jones Act and/or general maritime claims and added their employer Gallo Mechanical as a defendant.

After a trial on the merits the trial court issued judgment in favor of plaintiffs against Gallo Mechanical for damages, loss of wages and medical expenses. The trial court also issued judgment in favor of Gallo Mechanical and its insurer, as intervenors, against plaintiffs for benefits already paid. All claims against Pittman were dismissed.

Gallo Mechanical appeals this decision asserting that the trial court erred in finding that the structure on which plaintiffs worked was a vessel and that plaintiffs were seaman. Gallo Mechanical also asserts that the trial court erred in finding that the operator and flagman, employees of Pittman, were borrowed servants of Gallo Mechanical.

Plaintiffs cross-appeal asserting that the trial court erred in relieving Pittman of liability. In addition, plaintiffs assert the trial court erred in allowing full recovery for workmen' compensation benefits paid to intervenors.

We affirm the trial court's decision.

DISCUSSION

VESSEL

The threshold question is whether the structure on which plaintiffs were injured was a vessel under the Jones Act. The statutory definition of "vessel" includes "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C. § 3 (West 1998). Courts have traditionally interpreted the term as structures designed or utilized for the "transportation of passengers, cargo or equipment from place to place across navigable waters." Manuel v. P.A. W. Drilling & Well Service, Inc., 135 F.3d 344 (5 Cir. 1998); Cook v. Belden Concrete Products, 472 F.2d 999, 1002 (5 Cir.1973); Bernard v. Binnings Const. Co., Inc., 741 F.2d 824, 828-829 (5 Cir.1984).

The determinative factors in establishing whether a structure is a vessel are the purpose for which the structure was constructed and the business in which the structure was engaged. Manuel, supra.; Blanchard v. Engine & Gas Compressor Services, Inc. 575 F.2d 1140 (5 Cir.1978); Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817 (5 Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 639 (1976). Special purpose structures whose primary purpose is for navigation have been found to be "vessels" despite the structure also being used as a work platform. See, Mouton v. Tug Ironworker, 811 F.2d 946 (5 Cir.1987) (finding a derrick barge used to transport men and materials to be a Jones Act vessel); Hicks, supra, (finding a submersible oil storage facility used in connection with offshore drilling to be a Jones Act vessel). However, it is possible that a structure whose purpose or primary business is not navigation may satisfy the Jones Act's vessel requirement, if at the time of the worker's injury, the structure was engaged in navigation. Bernard, 741 F.2d at 829, citing, Blanchard, 575 F.2d at 1143, n. 5; Cook, 472 F.2d at 1002.

In addition, courts have looked to several objective factors in determining whether a structure is a vessel: 1) navigational aids; 2) raked bow; 3) lifeboats and other lifesaving equipment; 4) bilge pumps; 5) crew quarters; 6) registration as a vessel with the Coast Guard. Bernard, 741 F.2d at 832, Fn. 25, citing, Smith v. Massman Constr., 607 F.2d 87, 88 (5 Cir.1979); Blanchard, 575 F.2d at 1143. Other factors that have been suggested are 7) the intention of the owner to move the structure regularly; 8) ability of the structure, if submerged, to be refloated; 9) the length of the time the structure has remained stationary. Hemba v. Freeport McMoran Energy Partners, Ltd., 811 F.2d 276, 278 (5 Cir.1987). Generally, the determination of what is a vessel is a matter of law; however, in marginal cases a fact inquiry may be proper. Manuel, 135 F.3d at 347.

It is uncontested that the structure in the instant case is crude in design and does not meet the majority of the aforementioned factors. Pittman originally constructed the structure as a platform consisting of two pieces of pipe welded together with pieces of metal plate affixed to the end. According to Michael Pittman, vice-president of Pittman, the company intended the structure to be used as a loading platform for the pipe. Pittman testified that the structure was supposed to be used like a "trailer" and serve the purpose of a "floating deck." Because of the vessel's condition at the time of turnover to Gallo Mechanical, in conjunction with Pittman's intent of use, we find that at the time of turnover the structure was not a vessel under a Jones Act analysis.

However, our inquiry does not stop here. Once the structure was turned over to Gallo Mechanical, the record indicates that the company modified the structure from a floating platform to a self-propelled transportation platform. Gallo Mechanical installed a work deck, handrails, paddies, a motor bracket, and a 25 horsepower outboard motor to the structure. In addition, and more important, Gallo Mechanical used the structure as a transportation vehicle for its men and the pipe to the work-site. According to plaintiffs each workday they were lowered into the river on the platform and would receive the pipe once aboard. From the dock plaintiffs would steer the loaded platform four to six blocks to the work-site located under the wharf. Once plaintiffs were properly situated under the wharf they would install the pipes on pre-installed beams. This process lasted forty minutes to one hour and was conducted several times a day. Plaintiffs left the structure only for lunch and rest-room breaks.

Appellants argue that the structure's principal use was a work platform. Although we agree that the platform served a dual purpose, as a workstation and as a transportation vehicle, we can not find that its transportation function was incidental to its work function; therefore, we find that the structure at issue became a vessel under Gallo Mechanical's use.

SEAMAN STATUS

Seaman status is conferred upon those employees whose "duties contribute to the function of the vessel or accomplishment of its commission" and whose connection to a vessel in navigation is substantial in time and nature. Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 2190, 132 L.Ed.2d 314 (1995); McDermott Intern., Inc. v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991). The question of who is a "seaman" is a mixed question of law and fact. Chandris, 515 U.S. at 369, 115 S.Ct. at 2190. The interpretation of the term is a statutory inquiry, and thus legal; however, it is the fact finder's determination whether an injured employee is a seaman under the particular circumstances. Id.

In the instant case, the plaintiffs were plumbers by trade and under contract with Pittman to install piping. At first glance, plaintiffs are not seamen. However, under the circumstances of this case, we can not find that the trial court was manifestly erroneous in finding otherwise. Plaintiffs were an essential element of the structure's function, they received the pipe as it was loaded onto the structure and transported the pipe to the work-site. They spent the majority of each workday aboard the structure, which throughout the day remained on the Mississippi River. We, therefore, find that the plaintiffs' relationship to the structure was sufficient in time and nature to confer upon them the status of "seaman...