Hodgen v. Forest Oil Corp.
| Decision Date | 27 June 1996 |
| Docket Number | No. 94-41244,94-41244 |
| Citation | 87 F.3d 1512 |
| Parties | Jerry B. HODGEN and Bobby Sue Hodgen, Plaintiffs, v. FOREST OIL CORP., et al., Defendants, FOREST OIL CORP. and Ronald J. Doucet, Defendants-Third Party Plaintiffs-Intervenor Defendants-Cross Claim Plaintiffs-Appellants-Cross-Appellees, FOREST OIL CORP., in its capacity as platform owner and Ronald J. Doucet, Defendants-Third Party Plaintiffs-Intervenor Defendants-Cross Claim Plaintiffs-Appellants-Cross-Appellees, v. A & A BOATS, INC., and C & G Marine Service, Inc., Defendants-Third Party Plaintiffs-Intervenor Defendants-Cross Claim Defendants-Cross Claim Plaintiffs-Appellees-Cross Appellants, v. OPERATORS & CONSULTING SERVICES, INC., Third Party Defendant-Cross Claim Defendant-Appellee, and Chancellor Insurance Co., et al., Third Party Defendants-Appellees, v. ALBANY INSURANCE CO., Third Party Defendant-Third Party Plaintiff-Appellee-Appellant, v. AETNA CASUALTY & SURETY CO., Intervenor Plaintiff-Third Party Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Carl J. Hebert, Michael W. Mallory, Evans & Co., New Orleans, LA, for Forest Oil & Ronald J. Doucet.
Donald C. Brown, Todd M. Ammons, Robert W. Fenet, Woodley, Williams, Fenet, Boundreau, Norman & Brown, Lake Charles, LA, for Forest Oil, in its capacity as Platform Owner & RJD.
Edward F. LeBreton, III, Cindy T. Matherne, Rice & Fowler, New Orleans, LA, for Albany appeal as to AETNA & OCS and Albany as to Forest-Oil-RJD & Forest Oil in its capacity.
John F. Emmett, James A. Cobb, Jr., Emmett, Cobb, Waits & Kessenich, P.C., New Orleans, LA, for A & A and C & G.
D. Kirk Boswell, Stephen E. Mattesky, John A. Scialdone, Terriberry, Carroll & Yancey, New Orleans, LA, for A & A, C & G & COMMERCIAL UNION, Commercial Union, Appellee only.
Bonnie M. Steiner, James R. Sutterfield, Nathan L. Schrantz, Hoffman, Sutterfield & Ensenat, New Orleans, LA, for Chancellor, et al.
Ben E. Clayton, Lenfant & Assoc., Metairie, LA, Kevin J. Koenig, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Aetna.
Richard J. Guidry, Paul B. David, Broussard, David & Daigle, Lafayette, LA, for Operators & Consulting Serv.
Appeals from the United States District Court for the Western District of Louisiana.
Before POLITZ, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
This case, which involves at least thirteen separate lawsuits among at least fourteen parties, presents once again the legal difficulties attending a personal injury to a worker involved in capturing oil and mineral resources off the coast of Louisiana. At issue are the validity of the district court's assignments of comparative fault, the enforceability of a standard indemnity clause between a platform owner and a service contractor, and the effectiveness of other insurance clauses in the multiple layers of insurance each of the principal defendants in this case have purchased. We divide our opinion into three parts corresponding to these three primary issues. We affirm the district court's holdings on the comparative fault and indemnity questions, with the exception of one question that we certify to the Louisiana Supreme Court. Finding that the resolution of the disputes concerning the other insurance clauses in the policies requires powerful policy choices of state law, we also certify the insurance issue to the Louisiana Supreme Court.
Forest Oil Corp. owned several oil platforms in the Gulf of Mexico, including the Vermillion group 255, located on the Outer Continental Shelf. Pursuant to a Blanket Time Charter, Forest chartered the M/V MISS DEBORAH in a non-demise 1 fashion from the vessel's owners and operators, A & A Boats, Inc. and C & G Marine, Inc., respectively (collectively "A & A"). The master of the MISS DEBORAH was Captain Arthur Flanders. Pursuant to a Master Service Agreement, Forest hired Operators & Consulting Services, Inc. (OCS) to provide platform technicians and other staff for certain aspects of the operation of the platforms.
Jerry Hodgen worked as an operator for OCS. OCS assigned him for a single hitch, a seven day period, to Forest's Vermillion 255 platform group. The Vermillion 255 group consisted of four platforms; the mother platform was 255-B, where the workers slept and lived. It stood some two to three miles away from 255-A, where Hodgen's accident occurred. When Hodgen arrived at 255-B, he reported to Ronald Doucet, a Forest employee. Hodgen took orders from Doucet for the duration of his hitch.
On the morning of May 5, 1991, Hodgen, Doucet, and coworker Randy Ardoin rose on 255-B early. The schedule for the day called for Hodgen and Ardoin to travel via the MISS DEBORAH to 255-A for meter readings, but the seas were 7-9 feet. All three men knew that 255-A had no crane equipped for transfer from a boat to the platform via personnel basket, and thus that the only means of transfer was via helicopter or via swing rope from the MISS DEBORAH. Hodgen and Ardoin told Doucet that they did not feel able to make the swing rope transfer on and off 255-A in such rough seas and requested that Doucet call the helicopter that Forest had hired to assist in mining activity. Doucet responded that the helicopter was unavailable and told Hodgen and Ardoin to "give the vessel a try" because he had to report the meter readings to the home office soon. No emergency or urgency in fact attached to the meter readings, which might easily have been taken later in the day when the helicopter was available without interrupting the functioning of the oil operation. After conferring via radio with Captain Flanders, Doucet ordered the MISS DEBORAH to transport Hodgen and Ardoin to 255-A. Fearing the loss of their jobs, the two men complied. They boarded the MISS DEBORAH via personnel basket, sailed to 255-A, and successfully completed the swing rope transfer onto 255-A. After taking their readings, Ardoin and Hodgen attempted to swing back to the MISS DEBORAH. Ardoin completed the swing without incident. When Hodgen attempted to do so, however, the MISS DEBORAH rose quickly as Hodgen landed. Hodgen's impact on the boat caused him to suffer damage to his spinal cord, which in turn resulted in partial paralysis and an inability to control certain body functions.
Hodgen sued Forest, Doucet, 2 and A & A in Louisiana state court, alleging that the negligence of these two entities caused his injuries. Forest and A & A removed, alleging that the suit arose under the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1301-56. See especially 43 U.S.C. § 1349(b)(1). Although the original petition did not specify a theory of recovery, the district court construed the suit as proceeding pursuant to two different bodies of law. As against A & A and Forest in its capacity as time charterer of the MISS DEBORAH, the court held that Hodgen's complaint alleged a claim under the Longshore and Harbor Worker's Compensation Act, 33 U.S.C. §§ 902(21), 905(b-c), made available to Hodgen by 43 U.S.C. § 1333(b). As against Forest in its capacity as platform owner, the court construed Hodgen's claim to be under Louisiana law applicable by 43 U.S.C. § 1333(a)(2)(A)'s incorporation of the law of the adjacent state. See generally Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969).
The district court found that "Doucet was negligent in sending plaintiff onto a vessel in these rough conditions, especially when a helicopter could just as easily have been used and there were no compelling circumstances present." Hodgen v. Forest Oil Corp., 862 F.Supp. 1552, 1556 (W.D.La.1994). The court held that the actions of Doucet "constituted negligence of Forest Oil as charterer of the [MISS DEBORAH]," id., then absolved Forest of all negligence in its role as platform owner. 3 The court further found that Captain Flanders' failure to stop the swing rope transfer from occurring on such high seas constituted negligence as well, and therefore found for Hodgen in his suit against A & A. Regarding comparative fault, the court held Id. at 1558. The district court then assigned 85% of the fault to Forest and 15% of the fault to A & A. After calculating damages, the court ordered Forest and A & A to pay according to their respective shares of fault.
Hodgen settled all claims with all parties and dismissed his suit with prejudice. This left issues regarding indemnity and insurance. Because the assignments of fault provide the baseline for the adjudication of indemnity and insurance issues, however, Forest appeals the judgment in favor of Hodgen. Forest contends that the district court erred in holding it responsible for 85% of the fault. First, citing Brown v. Link Belt Division of FMC Corp., 666 F.2d 110, 113-14 (5th Cir.1982), and Forrester v. Ocean Marine Indemnity Co., 11 F.3d 1213 (5th Cir.1993), Forest argues that absent special circumstances a time charterer owes no duty to provide a safe means of ingress and egress to the chartered vessel, and that no special circumstances existed in this case. In particular, Forest relies upon the Forrester court's unsuccessful search for any case "in which a time charterer is held liable for the safe embarkation or disembarkation of passengers, absent special circumstances." 11 F.3d at 1216. Second, Forest contends that assuming such a duty, the district court nevertheless erred in assigning it the majority of the fault. Forest asserts that maritime law places a high duty of care upon the master to make an independent assessment of the safety of the means used to transfer on and off a vessel, and that Captain Flanders breached the duty in this case by failing to make an independent assessment of the risk. Forest further asserts that...
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