Mott v. ODECO

• Decision Date: 28 July 1978
• Docket Number: No. 76-1177,76-1177
• Citation: 577 F.2d 273
• Parties: Roy A. MOTT, Plaintiff-Appellee, v. ODECO, Defendant Third-Party Plaintiff-Appellant, v. QUALITY EQUIPMENT, INC., et al., Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 273

577 F.2d 273

Roy A. MOTT, Plaintiff-Appellee, v. ODECO, Defendant Third-Party Plaintiff-Appellant, v. QUALITY EQUIPMENT, INC., et al., Third-Party Defendants-Appellees.

No. 76-1177.

United States Court of Appeals, Fifth Circuit.

July 28, 1978.

C. Edgar Cloutier, W. K. Christovich, New Orleans, La., for ODECO.

Joseph J. Weigand, Jr., Houma, La., for Roy Mott.

Lawrence E. Abbott, New Orleans, La., for Quality Equipment, Inc., et al.

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

Before COWEN ^*, Senior Judge, GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

This case originated with a suit by Roy A. Mott against ODECO to recover damages for injuries sustained when Mott fell from a defective ladder joining two levels of an offshore oil production platform owned by ODECO. ODECO denied liability and, in addition, impleaded Quality Equipment, Inc. (Quality), Mott's employer on the date of the accident, claiming a right to indemnification under a provision of the Master Service Agreement between the two companies.

The district court granted a directed verdict in favor of Mott, holding that ODECO was strictly liable to Mott under Article 2322 of the Louisiana Civil Code and that contributory negligence was not a defense to a claim under this article. Neither Mott's claim based on negligence nor ODECO's defense of contributory negligence was submitted to the jury. The jury considered only the quantum of damages.

ODECO's third-party claim against Quality was tried to the court. ¹ The court held that Quality's duty to indemnify did not extend to claims for injuries caused by defects in existence prior to execution of the contract. Finding that the defect in the ladder, a missing rung, was of this character, the court entered judgment on the indemnification issue against ODECO. As an alternative ground for his decision, the trial judge held that ODECO had breached the Master Service Agreement by failing to comply with a regulation promulgated by the Occupational Safety and Health Administration (OSHA) governing the maximum distance between rungs on a ladder. 29 C.F.R. § 1910.27(b)(ii).

I. Mott's Claim Against ODECO

On August 30, 1973, the date of the accident, plaintiff Mott was employed by Quality as a welder. He and other members of the Quality crew began work that day on a well jacket, a small, offshore production facility located in Block 119 of the Ship Shoal Area of the Gulf of Mexico. The facility had been out of production for some time and Quality was to do work necessary to bring it back into production. The structure, surrounding one wellhead, consisted of three levels. Access from the second to the third level was provided by a vertical ladder constructed of pipe.

Mott and the other crew members arrived on the platform about mid-morning. They ascended from the bottom, or boat landing level, to the top level where they worked until lunch hour. Lunch was to be served on board the boat. As Mott was descending by ladder from the third deck to the level below, he fell, sustaining serious injuries to his back. Subsequent examination of the ladder revealed that a rung of the ladder was missing, resulting in a gap of 21 inches between rungs located several feet above the deck.

Mott argues that the strict liability rule of Article 2322 of the Louisiana Civil Code is applicable to the facts at bar. ² That article provides:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.

We recently have had occasion to consider the import of this statute in detail. Moczygemba v. Danos & Curole Marine Contractors, 561 F.2d 1149 (5th Cir. 1977). There we stated that the "existence of a 'building' and its 'ruin' are the threshold requirements of Article 2322." Id. at 1151. ³

Once the "building" criterion is met, in order for liability to attach under Article 2322 the damage complained of must have been caused by "ruin." "Ruin" for purposes of Article 2322 means the fall or collapse of a substantial component of the structure resulting from a "neglect to repair." . . . 5 Under Louisiana law the owner, here Defendant, is subject to liability without fault for all damages occasioned by a defective condition on the premises but only for damage occasioned by "ruin."

Id. at 1151-52 and n. 5.

5. Article 2322 also provides for recovery if the "ruin" is occasioned by a "vice in its original construction."

Our thorough review in Moczygemba of the governing Louisiana law thus establishes two propositions. First, "ruin" is a prerequisite to liability under Article 2322. Whether the defect in the premises results from "neglect to repair" or a "vice in its original construction," the damages must be occasioned by "ruin." Second, "ruin" for purposes of Article 2322 means the fall or collapse of a substantial component of the building. ⁴ While there have been some contrary indications in Louisiana jurisprudence, see e. g., Fontenot v. Sarver, 183 So.2d 75 (La.App.1966); Murphy v. Fidelity & Casualty Co. of N. Y., 138 So.2d 132 (La.App.1962), Moczygemba's understanding of the "ruin" requirement is clearly supported by the most recent pronouncement of the Louisiana Supreme Court on the subject. See Davis v. Royal-Globe Insurance Co., 257 La. 523, 242 So.2d 839 (1971). In Davis, the plaintiff sought to recover damages for the lead poisoning of her children resulting from their ingestion of paint flakes which had fallen from the walls and ceilings of the defendant's apartment building. After reaffirming that "ruin" must involve "fall or collapse" of a substantial component of the building, the court held that "falling paint flakes from an apartment ceiling were never intended by this article (2322) to be considered the "ruin" of a building . . .." Id. at 842.

These principles compel reversal of the judgment in favor of Mott. The undisputed facts show that Mott's injuries did not result from the fall or collapse of any part of the oil jacket. The ladder, though defective, remained intact, upright, and fixed in position. Since Mott's injuries were not occasioned by "ruin" and since "ruin" is a prerequisite to any recovery under Article 2322, the judgment must be reversed and the case remanded for trial on Mott's alternate theories of liability.

II. ODECO's Claim Against Quality

ODECO's claim for indemnity against Quality rests on paragraph 9 of the Master Service Contract between the two companies, executed on August 11, 1973. ⁵ Paragraph 9 provides:

(9) Subcontractor agrees to indemnify and hold harmless Drilling Contractor from and against any and all liens and claims for labor or material, and against any and all claims, demands, or suits for damages to persons and/or property (including, but not limited to claims, demands, or suits for bodily injury, illness, disease, death, loss of services, maintenance, cure, property or wages), which may be brought against Drilling Contractor (including, but not limited to those brought by Subcontractor's employees and agents and the agents and employees of its subcontractors) incident to, arising out of, in connection with, or resulting from the activities of Subcontractor, its employees and agents, or its subcontractors and their employees and agents, or in connection with the work to be performed, services to be rendered, or material to be furnished, under this contract, or under contracts referred to in 1(b) above, whether occasioned, brought about or caused in whole or in part by the negligence of Drilling Contractor, its agents, directors, officers, employees, servants or subcontractors, or otherwise, or by the unseaworthiness of any vessel owned, operated or controlled by Drilling Contractor, regardless of whether such negligence or unseaworthiness be active or passive, primary or secondary.

At trial, Quality contended that this provision did not obligate it to indemnify ODECO on Mott's claim. Quality argued that paragraph 9 did not extend to coverage of accidents caused by ODECO's negligence with respect to defects pre-existing execution of the contract. Contending that paragraph 9 was ambiguous with respect to such accidents, Quality offered the testimony of its president, Max Harding. Harding was permitted to testify over ODECO's objection. The essence of his testimony was that the parties did not intend to provide indemnification for claims arising from pre-existing defects. ODECO offered no contrary testimony. The district judge, sitting as the trier of fact on this aspect of the case, found that the parties did not intend to include claims of this character within the ambit of Quality's obligation to indemnify ODECO. Finding further that the defect in the ladder pre-existed execution of the Master Service Contract, the court held that Quality was under no obligation to indemnify ODECO on Mott's claim.

We find no error here requiring reversal. The trial court ruled correctly that the parol testimony of Harding was admissible to clarify an ambiguity in the contract. While it is true that paragraph 9 uses very broad language in describing the scope of Quality's obligation and purports to be a cosmic clause, none of paragraph 9's lengthy string of phrases expressly refers to injuries caused by pre-existing defects. The mere use of the phrase "any and all claims" in an indemnity clause does not suffice unambiguously to sweep within it the literal reach of the words used. See Brown v. Seaboard Coast R. R. Co., 554 F.2d 1299, 1302 and n. 3 (5th Cir. 1977); see also Batson-Cook Co. v. Industrial Steel Erectors, 257 F.2d 410, 414 (5th Cir. 1958) ("it is an area in which to cover all does not include one of the parts") (emphasis in original). Indeed, in the context of contractual indemnity provisions, the use of such a phrase standing alone is inadequate as a matter of law to include any claim...