Pickle v. International Oilfield Divers, Inc., 84-4348

• Decision Date: 16 June 1986
• Docket Number: No. 84-4348,84-4348
• Citation: 791 F.2d 1237
• Parties: Lonnie PICKLE, Plaintiff-Appellee, Maryland Casualty Company, Intervenor-Appellee, v. INTERNATIONAL OILFIELD DIVERS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1237

791 F.2d 1237

1987 A.M.C. 2038

Lonnie PICKLE, Plaintiff-Appellee Maryland Casualty Company, Intervenor-Appellee, v. INTERNATIONAL OILFIELD DIVERS, INC., Defendant-Appellant.

No. 84-4348.

United States Court of Appeals Fifth Circuit.

June 16, 1986.

Rehearing and Rehearing En Banc Denied July 30, 1986.

Craig W. Marks, Owen M. Goudelocke, John A. Jeansonne, Jr., Lafayette, La., Joel L. Borrello, Adams & Reese, Lynn M. Luker, New Orleans, La., for Intern. & Intervenors (Fisher and Jennings).

Lawrence K. Burleigh, Ltd., Morgan City, La., Culotta & Morella, Charles Carmelo Culotta, Jr., Patterson, La., for plaintiff-appellee.

Edward J. Marquet, John K. Hill, Jr., Lafayette, La., for Maryland Cas. Co.

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

Before GARZA, POLITZ, and HILL, Circuit Judges.

POLITZ, Circuit Judge:

This is an appeal from a Jones Act judgment after a bench trial, and involves, inter alia, the application of the rule recently announced in Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986) (en banc). Finding no merit in the challenges mounted against the district court's findings on seaman status, defendant's negligence, and plaintiff's contributory negligence, we affirm on those issues. We vacate the judgment as cast, however, and remand for a reconsideration of the award of prejudgment interest and for consideration, as the court may find appropriate, of the contentions of intervenor Underwriters of Lloyd's of London (Underwriters) concerning the structuring of the mandated reimbursements to Maryland Casualty Company and International Oilfield Divers (IOD), and of the other issues discussed herein.

Background

Lonnie Pickle, an experienced diver, was employed by IOD and was lead diver of a crew constructing an underwater brace on a fixed platform owned by ETPM-U.S.A., Inc. (ETPM) in the Gulf of Mexico off the coast of Texas. Because Pickle had to interrupt the hitch to attend a funeral, Jim Connell became lead diver for the remainder of the work assignment. The IOD crew was stationed on ETPM Barge 701 for the duration of the job.

While making his second dive on January 29, 1978, Pickle injured his back when a surge of water threw him against the jacket leg of the platform. The seas were rough, with six-to-eight foot swells, and Pickle had experienced some difficulty on his first dive that day.

Invoking the Jones Act, 46 U.S.C. Sec. 688, and the general maritime law, Pickle sued IOD and ETPM for damages for personal injury and maintenance and cure. ¹ The trial court found that Pickle was a seaman because of his assignment to ETPM Barge 701 at the time of the accident and because 90% of his work for IOD during his three years of employment had been aboard vessels in the Gulf of Mexico. The trial court found IOD negligent because its supervisor, Connell, had failed to stop the diving during heavy seas, and it found that Pickle had not been contributorily negligent. Damages of $494,713.37 plus pre- and post-judgment interest were awarded.

In structuring the award, the court awarded Maryland Casualty, IOD's primary insurer, reimbursement totaling $29,354.19 and also allowed IOD $26,000 for sums previously paid on Pickle's behalf. ² These sums were deducted from Pickle's award. IOD appeals.

After the appeal was noticed, Underwriters petitioned this court for leave to intervene, explaining that they provided employer's liability insurance to IOD for all sums in excess of the $25,000 primary coverage of Maryland Casualty. Because Maryland Casualty did not appeal, and recognizing the obvious vital interest of Underwriters, we granted their petition to intervene.

Analysis

Seaman status.

IOD first challenges the district court's finding that Pickle was a Jones Act seaman, a finding which will not be disturbed unless it is shown to be clearly erroneous. Yelverton v. Mobile Laboratories, Inc., 782 F.2d 555 (5th Cir.1986).

In Barrett, the en banc court revisited Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959), and reviewed the test for seaman status articulated there. A unanimous court reaffirmed the two-part Robison test which categorizes a maritime worker as a Jones Act seaman if he (1) "was assigned permanently to a vessel or performed a substantial part of his work on the vessel," and (2) "contributed to the function of the vessel or to the accomplishment of its mission." Barrett, 781 F.2d at 1072. Recognizing that the second prong of the test is easily determined under the Supreme Court's broad definition of "aid to navigation," id., we focused primarily on refining the first prong of the Robison test. To this end, we directed our attention to the duration of an employee's assignment to a vessel or fleet of vessels, to the definition of a fleet, and to the question of substantial performance.

Noting that the permanent-assignment/substantial-performance test is in the disjunctive, the Barrett court cited Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir.1977), for the proposition that "a worker [may qualify as] a crew member if he does substantial work on the vessel even though his assignment to it is not 'permanent.' " 781 F.2d at 1073. Citing a number of this circuit's precedents, the en banc court continued by observing that

in order to prove "substantial work" equivalent to permanent assignment "it must be shown that [the claimant] performed a significant part of his work aboard the vessel with at least some degree of regularity and continuity[,]" [which] "evinc[ed] a vessel relationship that is substantial in point and time and not merely spasmodic." "[This reflects] 'more than a transitory connection' with a vessel or a specific group of vessels...."

[All of which], like the status determination as a whole, is an inherently factual question....

Id. at 1073-74 (citations and footnotes omitted). We completed the definitional process by stating: "By fleet we mean an identifiable group of vessels acting together or under one control." Id. at 1074.

The Barrett court then examined the facts before it and found that during the year or so Barrett had worked for his employer, 20-to-30% of his work was aboard vessels, although during the eight-day period immediately preceding the injury he had spent as much as 70% of his time aboard a vessel. The majority of the court took the longer view and looked to Barrett's entire period of employment in determining his status as a crew member. From that perspective, because Barrett spent 70-to-80% of his work-time aboard fixed platforms, he was not "a member of the crew of a vessel" inasmuch as "he did not perform a substantial portion of his work aboard a vessel or fleet of vessels." Id. at 1076.

The trial court found that Pickle spent 90% of his work-time during his employment with IOD aboard an identifiable fleet of barges. In addition, as "a commercial diver, who embodies the traditional and inevitably maritime task of navigation, [Pickle had] the legal protections of a seaman when a substantial part of his duties are performed on vessels." Wallace v. Oceaneering Int'l, 727 F.2d 427, 436 (5th Cir.1984). This is so because "[i]t is the inherently maritime nature of the tasks performed and perils faced by his profession, and not the fortuity of his tenure on the vessel from which he makes a particular dive on which he was injured, that makes [Pickle] a seaman." Id. We perceive no erroneous fact-finding and no error of law in the trial court's determination that Pickle was a seaman.

Negligence and contributory negligence.

Without conceding but, understandably, without vigorously challenging the finding that it was negligent, IOD contends that the district court erred in finding no contributory negligence on Pickle's part. IOD argues that as an experienced diver, Pickle should have been more careful by refusing Connell's directions to dive. The court's findings on this point will not be overturned unless clearly erroneous. Kratzer v. Capital Marine Supply, Inc., 645 F.2d 477 (5th Cir.1981).

As a Jones Act employer, IOD must bear responsibility for Connell's negligence "if such negligence played any part, even the slightest, in producing the injury." Theriot v. J. Ray McDermott & Co., 742 F.2d 877, 881 (5th Cir.1984) (emphasis in original). In light of the fact that Pickle's duty to protect himself is only a slight duty to use reasonable care, Bobb v. Modern Products, Inc., 648 F.2d 1051 (5th Cir. 1981), we find no error in the district court's findings and conclusions.

Excessive award.

1. Future wages

IOD maintains that the trial judge overestimated Pickle's lost future wages by ignoring the possibility that he might be employed at a pay scale in excess of the federal minimum wage and by failing to credit properly a medical report indicating that because of pulmonary disease not related to the accident, Pickle's future as a diver was limited. Recognizing that an employee's work-life expectancy may be affected by evidence of his poor health, Madore v. Ingram Tank Ships, Inc., 732 F.2d 475 (5th Cir.1984), the district court found that Pickle would have been employed by IOD as a diving supervisor when his diving career ended. This finding, based on testimony by IOD's president, is not clearly erroneous. It was therefore not an abuse of discretion, see Curry v. Fluor Drilling Services, 715 F.2d 893 (5th Cir.1983), for the court to ignore the evidence of Pickle's pulmonary condition, which would not have affected his career as a diving supervisor. Insofar as IOD challenges the award for failure to consider employment above the minimum wage, this finding is not shown to be clearly erroneous. The evidence of such employability was random and speculative. ³

2. Prejudgment interest

IOD next contends that the district court erred in awarding prejudgment interest without first finding that IOD was responsible for any delay. This claim is devoid of merit. An award of prejudgment...