Perry v. Baltimore Contractors, Inc.

• Decision Date: 30 June 1967
• Citation: 202 So.2d 694
• Parties: Paul E. PERRY v. BALTIMORE CONTRACTORS, INC., et al. No 7051.
• Court: Court of Appeal of Louisiana — District of US

Page 694

202 So.2d 694

Paul E. PERRY v. BALTIMORE CONTRACTORS, INC., et al.

No 7051.

Court of Appeal of Louisiana, First Circuit.

June 30, 1967.

Rehearing Denied Oct. 4, 1967.

Carl J. Schumacher, Jr., of Lemle & Kelleher, New Orleans, for appellant.

Margot Mazeau, of Normann & Normann, New Orleans, for appellees.

Before LOTTINGER, REID and SARTAIN, JJ.

REID, Judge.

This is a suit for injuries allegedly sustained by plaintiff, Paul E. Perry, a diver employed by Underwater Exploration, Inc. The defendants are Baltimore Contractors, Inc., New Amsterdam Casualty Company, its insurer, and Ray Ledet, one of its employees.

Plaintiff's petition alleges that on or about October 13, 1958, he was employed by the Underwater Exploration Company, Inc. as a diver, diving for the company in the Intracoastal Canal in Houma, Terrebonne Parish, Louisiana, at the intended site of the tunnel to be built under the Intracoastal Canal. He alleges that while he was beneath the water, an employee of Baltimore Contractors, Inc. who was operating a crane on a barge owned by defendant Baltimore Contractors, Inc., scooped plaintiff up from the bottom of the Canal by a clam shell bucket and raised him approximately 14 feet above water level and after a short time, dropped him back into the water. Plaintiff prays for $20,000.00 for pain, suffering and anguish, $281.63 medical expenses, and $100,000.00 for future pain and suffering, medical expenses, and future loss of wages.

Baltimore Contractors, Inc. and New Amsterdam Casualty Company filed an exception of no cause or right of action on the grounds that plaintiff was an employee of Underwater Exploration Company, Inc., a subcontractor of Baltimore Contractors, Inc. and that he was injured as a result of the negligence of Ray Ledet, an employee of Baltimore and therefore the sole liability of Baltimore, if any, to the plaintiff is under the provisions of the Louisiana Workmen's Compensation Act, particularly R.S. 23:1061 et seq.

Plaintiff amended his petition to further allege alternatively that in the event the Court found petitioner was at the time of the accident an employee of Baltimore Contractors, Inc., that he was entitled to compensation under the laws of the Louisiana Workmen's Compensation Statutes.

Baltimore Contractors, Inc. and New Amsterdam Casualty Company then filed an exception of vagueness on the grounds that plaintiff's supplemental petition alleged he was 'gainfully employed', but failed to allege the name of his employer.

All of the exceptions were tried and the exception of vagueness was overruled and the exception of no right and no cause of action was referred to the merits.

The two corporate defendants then filed answers to plaintiff's original petition and supplemental petition admitting the New Amsterdam Casualty Company comprehensive general liability insurance in favor of Baltimore Contractors, Inc. but denied that Ray Ledet was an insured within the coverage provisions of the policy. They allege negligence on the part of plaintiff and alternatively that the sole and exclusive cause of the accident was the negligence of one Brian, Picou, plaintiff's tender, an employee of plaintiff acting in the course and scope of his employment.

Plaintiff filed a second supplemental and amended petition alleging that the accident in question occurred on the navigable waters of the State of Louisiana and of the United States, and the action is brought against the defendants as third parties under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., and in the alternative prayed that he be adjudged a seaman and have judgment against the defendants in the sum of $127,141.63, plus maintenance and cure, with legal interest and costs, all of which was denied by Baltimore Contractors and New Amsterdam Casualty Company in their answer.

Baltimore Contractors, Inc. and New Amsterdam Casualty Company then filed a third party action against Underwater Exploration Company, Inc. and its president, Paul E. Perry, averring that if plaintiff Paul E. Perry is entitled to any relief against Baltimore Contractors, Inc. and New Amsterdam Casualty Company, such relief is under the Louisiana Workmen's Compensation Act and therefore under the provisions of R.S. 23:1063, Baltimore Contractors, Inc. as principal contractor, and New Amsterdam Casualty Company as insurer, are entitled to indemnity from Underwater Exploration Company, Inc., a subcontractor of Baltimore Contractors, Inc., and employer of plaintiff, for any compensation benefits Baltimore and New Amsterdam might be called on to pay. They further aver that since Paul E. Perry was the President and sole shareholder of Underwater Exploration Company, Inc. and as such, personally responsible for the obligation of Underwater Exploration Company, Inc. to obtain workmen's compensation and general liability insurance covering the company's liabilities, that if third party plaintiffs are unable to effect indemnity from Underwater Exploration Company, Inc., they should be entitled to recover judgment of indemnity from Paul E. Perry. Paul E. Perry filed an exception of vagueness and of no cause or right of action to the third party petition, which exception was referred to the merits.

For written reasons assigned, the Lower Court rendered judgment in favor of plaintiff and against Baltimore Contractors, Inc. and New Amsterdam Casualty Company, jointly and in solido in the sum of $44,092.55, with interest and costs, from which judgment the said two defendants appealed.

In regard to the facts concerning the accident, the trial judge in his reasons for judgment states the facts in great detail and accurately.

'The record shows that Baltimore Contractors, Inc. was the general contractor engaged in the construction of the Houma Tunnel under the Intracoastal Canal at Houma; that a necessary incident of the operation was the use of a coffer dam constructed of sheet piling supported by wooden crossbeams, like a metal box with no top and bottom; that the purpose of a cofferdam was to facilitate work inside of it on the former bed of the Intracoastal to prepare the floor and walls of a tunnel; that the cofferdam was completely enclosed on all sides; that it was divided into bays, roughly rectangular in shape, each estimated to measure from 12 to 15 feet in width and from 30 to 40 feet in length; the the respective bays were separated from one another only by crossbeams; and that the divers moved from one bay to another by moving through the crossbeams without emerging from the water.

'Plaintiff was a diver and an employee of Underwater Exploration Company, Inc., of which he was the President and principal stockholder, and which had an oral contract with Baltimore to perform the diving operations for the construction of the project; that the work of the diver consisted primarily of 'hand jetting' mud from the side of the cofferdam, which was picked up along with mud from the bottom of the coffer dam by a clam bucket attached to a crane on a barge named 'Whirly II', which was owned by Baltimore and was afloat on the Intracoastal Canal immediately outside of the coffer dam; that the air compressor unit attached to plaintiff's diving apparatus was attached to the barge and under the control of Byron Picou, plaintiff's tender in his diving operation; and that the entire operation was under the supervision and direction of Miles Spinney, a superintendent of Baltimore.

'Underwater, through Perry, contracted with Baltimore on or about October 9, 1959, to perform the necessary diving operations. When the contract was entered into Perry or Underwater applied for insurance and workmen's compensation and tendered a deposit for that purpose. It developed that the insurance applied for only became effective on October 15, 1959. Meanwhile, Perry went to work under his contract before producing any policies, and it was stated by Spinney that Baltimore had sufficient insurance to cover operations until the policies were delivered. The accident occurred on October 13, 1959.

'It is established with reasonable certainty that the general practice was that no digging operations would be performed while a diver was in the water; and such was the general knowledge and understanding on this particular operation. It was the practice generally, and the practice in this case, for a diver to move from one bay to another in the performance of his duties, and such movement from one bay to another usually took place under water and was not apparent on the surface of the water; and such movement could hardly be known to any one on or above the surface except the driver's tender, who would release or take in lines attached to the diver in accordance with the diver's movements.

'In this case it was known to everybody, with the possibly exception of Miles Spinney, that the diver had descended into the water; and it is the testimony of plaintiff that he descended at about 1:00 P.M. on the instructions of Spinney. The testimony indicates that he went into bay No. 6 and that thereafter he moved into bay No. 4. Meanwhile, a new crane operator took over that part of the job, and practiced for awhile the movement of the crane and the operation of the clam bucket. He was then given instructions to begin digging. He did so and removed a bucket of dirt from bay No. 4 and deposited it on the barge. Before dropping the bucket a second time, his testimony is that, being aware of the presence of a diver in the water, he attempted to signal that information to Spinney, who nevertheless signaled him to dig. He undertook to do so and on his second operation picked up Perry with his bucket, thereby causing injuries.'

Examination of the facts in this case clearly shows that the trial Judge was correct in his findings.

We would like to point out that there is some dispute in the facts as to the question of insurance. The testimony of the...