Hall v. Continental Drilling Company, 16600.

• Decision Date: 29 June 1957
• Docket Number: No. 16600.,16600.
• Citation: 245 F.2d 717
• Parties: Mrs. Virginia Ann Richerson HALL, Individually, and as natural tutrix of and for the use and benefit of the minors, Clifford Kipper Hall and Virginia Dele Hall, and The Travelers Insurance Company, Intervenor, Appellants, v. CONTINENTAL DRILLING COMPANY and The California Company, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

245 F.2d 717 (1957)

Mrs. Virginia Ann Richerson HALL, Individually, and as natural tutrix of and for the use and benefit of the minors, Clifford Kipper Hall and Virginia Dele Hall, and The Travelers Insurance Company, Intervenor, Appellants, v. CONTINENTAL DRILLING COMPANY and The California Company, Appellees.

No. 16600.

United States Court of Appeals Fifth Circuit.

June 29, 1957.

Edward Donald Moseley, Fred G. Benton, Clint L. Pierson, John L. Avant, Baton Rouge, La., for appellant Virginia Ann Richerson Hall.

Robert J. Vandaworker, of Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., for appellant Travelers Ins. Co.

Wm. E. Wright, Benjamin W. Yancey, New Orleans, La., Calvin E. Hardin, Jr., Baton Rouge, La., W. Ford Reese, New Orleans, La., Terriberry, Young, Rault & Carroll, New Orleans, La., Durrett, Hardin & Hunter, Baton Rouge, La., of counsel, for appellees.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

Plaintiff-appellant's decedent was an employee of the Lane-Wells Company who on the date of the accident was working as a perforator operator on an oil well owned and operated by appellee. The California Company, pursuant to a contract for such services between Lane-Wells and California. At that time employees and equipment of appellee Continental Drilling Company were also located at and working on the same rig pursuant to a separate contract between Continental and California whereby the former was to "rework" the well. Early in the morning of February 11, 1954, some of the decedent's equipment at the rig became fouled, and, the mishap threatening to delay all operations at the well, he decided to go ashore to report by phone to his employer. He requested one Heber Dodson, a supervisory employee of California, to take him to the landing. Dodson agreed to do so and for that purpose he took the only available boat, the "Deborah Jean," a diesel operated motor boat leased by Continental, for whose use he had some days earlier received oral permission from a supervisor of Continental because California's own boat was just undergoing repairs. Though Dodson had previously operated both the California and the Continental boats, he had apparently done so in the case of the latter only when a Continental employee was on board.

Dodson and the decedent entered the boat and started off to the landing some three miles away through the canal system of the California Company. Though he had made the journey several times, in the pitch darkness Dodson missed a turn, and the decedent left the cabin to go aft to look for it and perhaps also to clean the windshield which had fogged up in the night air and could not be completely cleaned by means of the windshield wipers. Decedent apparently fell overboard. Dodson heard a cry and noting that the decedent was no longer aboard he turned the boat around and for some twenty minutes searched for him in the canal by means of the boat's spotlight; at that point the electric power supply failed and Dodson had to swim ashore to summon help. Decedent's drowned body was found the next day.

Plaintiff-appellant brought suit in diversity against both the California Company and the Continental Drilling Company, charging accidental death due to negligence. The Travelers Insurance Company, the workmen's compensation insurance carrier for Lane-Wells, intervened on the side of the plaintiff, claiming subrogation to the extent of the payments it had made to decedent's family.

On the basis of an affidavit by an officer of California, discussed in greater detail below, the district court granted summary judgment to the company on the ground that plaintiff's exclusive remedy was under the Louisiana Workmen's Compensation Act, LSA-R.S. 23:1021 et seq. The case against Continental went to trial before a jury, but at the conclusion of the plaintiff's case the court granted a directed verdict for defendant on the ground that no culpable negligence by or attributable to Continental, and proximately causing the accidental death, had been shown. This appeal by the plaintiff and the intervenor below challenges both the summary judgment in favor of California and the directed verdict in favor of Continental.

It is not disputed that under the provisions of LSA-R.S. 23:1032 the rights and remedies under the state Workmen's Compensation Act are made exclusive wherever they are applicable, precluding all other suits against an employer by an employee or his dependents; this rule also applies to death actions. Philips v. Guy Drilling Co., 143 La. 951, 79 So. 549; Thaxton v. Louisiana Ry. & Nav. Co., 153 La. 292, 95 So. 773. Thus the controlling question with respect to the summary judgment is whether or not plaintiff had a remedy against the California Company under the Act, the here pertinent portion of which reads as follows:

"Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation * * * and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this act which he would have been liable to pay if the employee had been immediately employed by him; * * *." Section 6 of Act 20 of 1914 as amended, LSA-R.S. 23:1061.

Both parties agree that the interpretation of this provision and the determination of coverage are entirely questions of Louisiana law. Isthmian S. S. Co. of Delaware v. Olivieri, 5 Cir., 202 F.2d 492, 494; Fontenot v. Stanolind Oil & Gas Co., D.C.W.D.La., 144 F.Supp. 818, 824, affirmed 5 Cir., 243 F.2d 574.

Many Louisiana cases have interpreted the phrase: "work, which is a part of the principal's trade, business, or occupation" which defines the type of activity so intimately connected with a person's business that even if assigned to be done by an independent contractor the person remains liable under the compensation Act to the workmen who actually perform the work. A leading case is Turner v. Oliphant Oil Corp., La.App., 200 So. 513, in which it was held that since all oil producing companies had to make an effort to recover the casings from abandoned wells, this being an important element of their costs, such recovery operation was part of the "trade, business and occupation of the oil companies," even if as a matter of fact all companies made a practice of subcontracting this work to specialists. See also the very similar and here persuasive decision in Thibodaux v. Sun Oil Co., La. App., 40 So.2d 761, affirmed Baker v. Sun Oil Co., 218 La. 453, 49 So.2d 852. Appellants rely on the dicta of the Louisiana Court of Appeals in Dandridge v. Fidelity & Casualty Co. of N. Y., La. App., 192 So. 887, 889, a case anteceding the Louisiana Supreme Court decision in the Thibodaux case above, which would exclude "such special work as is not generally done directly by others engaged in the same line of business as is the principal, — such as special construction or even such unusual repairs as are ordinarily made by specialists not customarily within the direct employ of the principal" from the coverage of the statute; but insofar as this exception has not been almost entirely eroded by later decisions it does not appear applicable here in view of the uncontradicted assertions of the affidavit. This court has summarized the law of these and of other Louisiana cases...