Ham v. Pennzoil Co., 88-3364

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation869 F.2d 840
Docket NumberNo. 88-3364,88-3364
PartiesDavid T. HAM and Patricia Ham, Plaintiffs-Appellants, v. PENNZOIL COMPANY, Defendant-Appellee. Summary Calendar.
Decision Date10 April 1989

Michael E. Holoway, Jack E. Truitt, Metairie, La., for plaintiffs-appellants.

Don K. Haycraft, Liskow & Lewis, New Orleans, La., for defendant-appellee.

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

Before RUBIN, GARWOOD, and DAVIS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A worker employed by a company that performed workovers on oil wells was injured while engaged in such an operation on a platform owned by an oil company. That company had contracted with his employer for the job. He seeks to recover damages for his injuries from the oil company. After a bench trial, the district court found that (1) the oil company did not have operational control over the work being done by the worker's employer, an independent contractor, and (2) the well being worked on was not such a defective object as to impose liability on the company under La.Civil Code Arts. 2315 and 2317. The findings of fact are supported by the record and the conclusions of law are correct. We therefore affirm.


On or about November 6, 1986, Dave T. Ham was employed by Services Equipment Engineering, Inc. as a roughneck aboard a platform situated on the outer continental shelf. That platform was owned and operated by Pennzoil, which had contracted with SEE to perform workover operations on a well that had been drilled from the platform.

The drilling contract between SEE and Pennzoil described SEE as an "independent contractor." It further stated that Pennzoil "is interested only in the results obtained and has only the general right of inspection and supervision to secure the satisfactory completion of any such work [completion of workover operations]."

In order to insure that the work would be performed according to Pennzoil's rules, regulations and specifications, a Pennzoil company representative, James Manning, was stationed aboard the platform. His duties included being present on the drill floor when a well began "swabbing" to monitor the situation. Left unchecked, swabbing may result in a "kick," or rush of pressurized drilling fluid, which might create a dangerous situation.

In the course of the workover on the evening of November 5, 1986, the SEE drilling crew began pulling the drill pipe--to the end of which the packer was connected--out of the wellbore. The toolpusher and day-tour driller, a SEE employee named James Hall, observed that the hole was swabbing at approximately 11:00 p.m. Swabbing indicates that the rubber seal around the packer that is being pulled has not yet resumed its smaller diameter original position. It is a common occurrence when pulling this particular piece of equipment out of the wellbore.

As unequal pressures in the wellbore may develop if swabbing is left unchecked, the toolpusher ordered the members of his SEE crew to pull the drill pipe up slowly and then slack it off. The working of the packer's rubber seal on the inside wall of the casing causes the rubber to retract or wear off and then allows the fluid to fall down around the packer so that wellbore pressures maintain an equilibrium above and below the packer. The drilling operations expert witness called by Ham, Robert Kubelka, testified that this is an accepted way to deal with swabbing.

Hall and Roland Kern, the SEE night tool pusher, observed that after the pipe was reciprocated in this manner, the fluid began to drop properly. At this point the drill crew began removing the pipe slowly from the hole. This kind of removal ensures that even if tolerances between the packer and casing remain small, the drilling fluid has a chance to drop, keeping the equilibrium in wellbore pressures. Kubelka also testified that this procedure is prudent.

Shortly after midnight, after watching a number of stands of pipe being pulled out of the hole without difficulty, both Kern and Manning, the Pennzoil's company representative, retired for the night. The night tour, which included Ham, came on duty at midnight and continued pulling pipe out of the hole over the next three and one half hours. They pulled one stand approximately every five minutes, a slow rate of speed. Jim Waller, the night-tour driller, testified that no swabbing or flowing occurred during this time. This was corroborated by the IADC daily drilling log for the hours between midnight (2400) and 3:30 a.m. (0330) on November 6. Removal of the drill pipe required that the lost volume be replaced with a like volume of drilling fluid and the wellbore took the proper amount. This meant that the wellbore pressures were maintaining an equilibrium and that no influxes of formation hydrocarbons were occurring.

At approximately 3:30 a.m., the well began flowing in a "kick." At that point, Waller ordered his drill crew, which included Ham, to install a TIW valve. This valve is a cylindrical safety valve weighing between 100 and 125 pounds with an open bore that is threaded. In use the valve is screwed ("stabbed") onto the top of the drill pipe sticking up through the rotary table on the rig floor. When the valve is closed, the drilling fluid that is flowing up through the annulus of the drill pipe is shut off. Ham and Williamson raised the valve from the drill floor and attempted to place it on top of the drill pipe. Unfortunately, they placed the valve in a cocked position so that the flow of fluid from the pipe knocked the valve over. As the valve fell, it struck Ham in the face. He was knocked to the ground and suffered injuries to his lower back.

Manning, the Pennzoil company man, was not on the drill floor at the time and had not been there for more than three hours. Moreover, he had no responsibility for the SEE crew stabbing the TIW valve, an operation that the SEE drilling crew routinely performed each 12-hour tour.

Ham asserts that, through Manning, Pennzoil exercised operational control over the operation in progress. The drilling contract specifically stated that SEE was Pennzoil's independent contractor and that Pennzoil had a general right of inspection and supervision. It...

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