McBride v. Chevron U.S.A., 92-CA-00769-SCT

• Decision Date: 28 March 1996
• Docket Number: No. 92-CA-00769-SCT,92-CA-00769-SCT
• Citation: 673 So.2d 372
• Parties: Gregory McBRIDE v. CHEVRON U.S.A., a Foreign Corp.
• Court: Mississippi Supreme Court

Page 372

673 So.2d 372

Gregory McBRIDE v. CHEVRON U.S.A., a Foreign Corp.

No. 92-CA-00769-SCT.

Supreme Court of Mississippi.

March 28, 1996.

As Modified on Denial of Rehearing

May 23, 1996.

Curtis R. Hussey; Hattiesburg, John M. Deakle, Hattiesburg; John Michael Sims, Heidelberg; J. Robert Sullivan, Sr., Sullivan & Sullivan, Laurel, for Appellant.

Robert D. Gholson, Gilchrist Sumrall Thaxton & Yoder, Laurel, for Appellee.

Before PRATHER, P.J., and PITTMAN and McRAE, JJ.

PRATHER, Presiding Justice, for the court:

I. INTRODUCTION

At issue in this negligence case is the proper method of calculating damages when the plaintiff has settled with one, but not all, of the co-defendants. Gregory McBride appeals the October 31, 1991, jury verdict of the Jones County Circuit Court in which he was found seventy-five percent negligent and Chevron, U.S.A., Inc. was found twenty-five percent negligent in a drilling accident that occurred on Chevron's leased property near Heidelberg, Mississippi. Because Radco Fishing & Rental Tools, Inc. settled with McBride during trial, calculations after the jury verdict resulted in McBride receiving no money from Chevron. McBride raises the following issues on appeal:

A. Whether the trial court conducted the proper calculations when applying Radco's settlement to the jury's verdict.

B. Whether the trial court erred in refusing to grant McBride's Motions To Alter Or Amend The Judgment For Additur, Or In the Alternative, For New Trial On The Damages Issue.

C. Whether the trial court erred in failing to allow McBride the opportunity to present rebuttal testimony.

D. Whether McBride was entitled to certain jury instructions regarding the liability of Chevron and directed verdicts.

II. STATEMENT OF THE FACTS

On July 24, 1987, Gregory McBride was working as a floorhand for V.A. Sauls, Inc. in the Reedy Creek Field, located in Jones County, Mississippi. Sauls had contracted with Chevron U.S.A., Inc. to perform a workover, which term refers to conducting repairs on an existing well.

In addition to McBride, the Sauls crew was comprised of three Herndons: Pete, Mike and Ricky, who were the toolpusher, driller and floorhand respectively. The function of a toolpusher is to supervise the entire rig team; a driller operates the rig; and a floorhand works the floor on a particular piece of equipment. McBride was supervised by Pete Herndon, the toolpusher for the crew. The ultimate decision on how the operation was conducted belonged to Chevron, specifically to Chevron company representative Merle Pellusch, who was the drilling supervisor. Chevron, however, asserts that the Sauls rig crew, specifically Pete as the supervisor, had the responsibility of operating the bowl and slips properly.

When McBride was working the equipment, the backup tongs did not hold, causing the pipe to turn rapidly in the hole. The bowl was not bolted or chained to the wellhead, causing the slip handles to strike McBride's right knee. The decision not to chain the bowls had been made by the Sauls work crew. It is common practice not to bolt or chain the bowl, and the injury could have still occurred even if the bowl had been bolted or chained. Johnny Windham, former Sauls employee who worked with McBride as a derrick hand, testified that he did not see McBride operate the tongs in an incorrect manner nor did he think McBride was standing too close to the equipment. Mike Herndon, by contrast, testified that McBride was standing too close to the slips, and that he probably should have been the one to tell McBride to back up from the tongs.

McBride had only been working for Sauls for about three months. While McBride had worked with backup tongs, he testified he had never performed the type of job which gave rise to the accident. There was testimony at trial as to whether McBride had been trained to preform this type of job, with Chevron claiming that he had been. Apparently, at the time of the accident, no representatives from Radco or Chevron were present. Pellusch claimed it was not his responsibility to be on the premises at all times, and Radco, in its supplemental answer, stated that the slips and bowl were common rental equipment which did not require them to furnish an operator.

McBride underwent two knee operations which left four scars, and he is currently twenty-five percent permanently partially disabled in the right knee. McBride had previously undergone surgeries on his left knee and collarbone from football accidents, from which he completely recovered. McBride also submitted medical reports indicating that he suffers from depression. McBride collected workers' compensation benefits from Saul's carrier.

Dr. Donald Cook was accepted as an expert in the field of orthopedic medicine and testified that McBride suffered a severe injury, and that the first operation was unsuccessful, making additional surgery on his knee necessary. According to Dr. Cook, it is highly probable that McBride will suffer pain the remainder of his life. McBride is limited in the type of work he can do by both physical and mental impairments. He suffers an approximately thirty-five percent medical impairment to his lower right extremity and Dr. Randall Thomas, psychologist, testified that McBride suffered from depression about his physical condition. McBride is currently taking antidepressant medication. Dr. Donald Woodall, vocational rehabilitation counselor, testified that McBride's vocational outlook was "bleak," and that there were no jobs in south Mississippi he could perform at the time of trial due to his impairments and educational deficits.

At trial, G. Richard Thompson, an economist, calculated the lifetime earnings of McBride discounted to present value to be $321,770. Thompson also testified that McBride will incur over $242,316 in physical therapy costs in his lifetime as a result of the knee injury. Joey Cooley, a physical therapist, testified that whether or not McBride would require supervised physical therapy would depend on his physician, but that he would probably always need to perform some form of therapeutic exercise.

III. STATEMENT OF THE CASE

On April 6, 1990, Gregory McBride (McBride) filed a complaint against Radco Fishing & Rental Tools, Inc. (Radco) for alleged injuries he sustained while using their equipment at a wellsite owned by Chevron U.S.A., Inc. (Chevron). After initial discovery, McBride amended his complaint to include Chevron as an indispensable defendant. The trial court allowed Bituminous Insurance Companies to intervene in the suit as the workers' compensation carrier.

Chevron filed a motion for summary judgment, asserting that the workers' compensation statutes pre-empted any recovery against it. This motion was denied, and the trial commenced on October 12, 1991. About midway through the trial, McBride settled with Radco. The jury was instructed by the court that henceforward all evidence presented in the trial should be considered only as it related to Chevron and any potential liability which Chevron might have to McBride, but the jury was not given any details of the McBride-Radco settlement. After a five-day trial, the jury returned a verdict, finding that McBride had suffered $500,000 in damages, but that he was seventy-five percent at fault for his injuries, while Chevron was found to be twenty-five percent at fault for said injuries.

McBride made a motion for a new trial, basing the motion on what is now the first assignment of error, namely the issue of verdict reduction calculations. The trial judge denied the motion with the following comments:

I have no authority--you have not furnished me any authority or have not been able to find any authority on these points. I don't have the time to do research on a question like this. All of my research and writing I might try to formulate as the result of my research, I think it would still be something that the Supreme Court would say.... I will just let them decide what they need to do about it....

....

The instruction, I think is somewhat confusing, but as I remember, it was an instruction not objected to. The way the verdict turned out, I think it did leave room for some improvement in the future and maybe even in this case where the Court might need to make some adjustment.... I know this case is going to the Supreme Court and I think they are better equipped to handle this question that I am.

IV. ANALYSIS OF THE LAW

A. Whether the trial court conducted the proper calculations when applying Radco's settlement to the jury's verdict?

This assignment of error presents a question of first impression in this state. While trial courts have routinely performed calculations of jury awards for disbursement purposes, this Court has not specifically addressed the method to be followed when the calculations involve a settlement between a plaintiff and one or more, but not all, of the co-defendants. Unfortunately, our statutes on joint and several liability do not address damages calculations with regard to this situation. However, some guidance on the proper method for calculating the award can be gleaned from these statutes, case law and other states' jurisprudence.

First, McBride argues the pros and cons of what has been termed in various other states as the "fault-first" method versus the "settlement-first" method. These terms refer to the split which has formed among various courts with regard to deciding whether the percentage representing the plaintiff's share of the fault should be applied to the plaintiff's gross damages before or after subtracting the amount of the settlement in order to arrive at the plaintiff's net recovery from the nonsettling tortfeasor(s). See: Jeffrey F. Ghent, J.D., Comparative Fault: Calculation of Net Recovery by Applying Percentage of Plaintiff's Fault Before or After Subtracting Amount of Settlement by Less Than All Joint Tortfeasors, 71 A.L.R.4th 1108, 1109 (1989). The following...