Rice v. Glad Hands, Inc.

• Citation: 750 F.2d 434
• Decision Date: 14 January 1985
• Docket Number: No. 83-4505,83-4505
• Parties: Carson RICE, Plaintiff, v. GLAD HANDS, INC. and Allstate Insurance Company, et al., Defendants-Third Party Plaintiffs-Appellants, v. Robert Murray COLLINS and Phillip Alan Froude, Underwriters at Lloyd's, et al., Third Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 434

750 F.2d 434

Carson RICE, Plaintiff, v. GLAD HANDS, INC. and Allstate Insurance Company, et al., Defendants-Third Party Plaintiffs-Appellants, v. Robert Murray COLLINS and Phillip Alan Froude, Underwriters

at Lloyd's, et al., Third Party Defendants-Appellees.

No. 83-4505.

United States Court of Appeals, Fifth Circuit.

Jan. 14, 1985.

As Amended on Denial of Rehearing March 18, 1985.

Gary P. Kraus, James E. Diaz, Sr., Lafayette, La., for defendants-third party plaintiffs-appellants.

Margot Mazeau, George W. Healy, III, New Orleans, La., for third party defendants-appellees.

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

Before TIMBERS, ^* POLITZ and RANDALL, Circuit Judges.

POLITZ, Circuit Judge:

Glad Hands, Inc. and its protection and indemnity (P & I) insurers, appeal the dismissal of their third party demand against Glad Hands' excess maritime employer's liability (MEL) insurers. The trial court's dismissal was based on the conclusion that the record contained insufficient evidence to support a finding that the plaintiff, Carson Rice, was a seaman. The district court considered only the trial record as it was constituted prior to the time the third party demand was filed, limiting the evidence because of an apparent stipulation to that effect between appellants and other parties to the litigation, made at a time when the appellees were not third party defendants. That stipulation does not appear of record and we are not able to determine, on the basis of the present record, the scope, extent and applicability of the reported stipulation. Accordingly, we vacate the judgment and remand for further proceedings.

Facts

On December 22, 1979, Carson Rice, an employee of Glad Hands, was injured while moving from the M/V SEA LEVEL II to an Amoco Production Company platform where Glad Hands employees were sandblasting and painting pipes under the direction of Transco Offshore Pipeline Company. The vessel was owned by Sea Level Boat Company and operated by C.S.I. Hydrostatic Testers. On December 18, 1980, Rice filed suit under the Jones Act and/or general maritime law against Glad Hands, Sea Level, C.S.I., Transco and Amoco.

Prior to the filing of Rice's original complaint, Commercial Union Insurance Company, Glad Hands' primary Jones Act and Longshoremen's and Harbor Workers' Compensation Act (LHWCA) carrier, paid approximately $22,000 to or on behalf of Rice as a result of his injuries. Commercial Union intervened in Rice's suit claiming reimbursement of the sums paid. The defendants filed various cross claims claiming contractual indemnity and maritime tort indemnity in favor of an allegedly passive tortfeasor against an allegedly actively negligent tortfeasor. During this time Transco filed a third party claim against McDermott, Inc., precipitating further filings involving the active/passive tortfeasor issue.

On July 16, 1982, Sea Level and C.S.I. filed third party demands against their P & I insurers, seeking contractual indemnity. These demands were severed from trial on the principal demand. On August 5, 1982, Glad Hands filed a third party complaint against Highlands Insurance Company alleging that Highlands provided P & I insurance coverage. Glad Hands then substituted Allstate Insurance Company, United Pacific Insurance Corporation, Citadel General Insurance Corporation, Citadel Insurance Company, and Underwriters at Lloyds & Company in London for Highlands Insurance Company as P & I insurers. Glad Hands filed immediately thereafter another third party complaint against Orion Insurance Company, Ltd., Insurance Company of North America, Bishopgate Insurance Company, Ltd., British Law Insurance Company, Ltd., Insurance Corporation of Ireland, Continental Insurance Company, Elders Insurance Company, Royal Insurance Company, Commercial Union, Sphere/Drake Insurance Company, Ltd., Threadneedle Insurance Company, Ltd., London Assurance Company, Ocean Marine Insurance Company, and Lloyds of London Companies, claiming coverage under their comprehensive general liability (CGL) policies.

When the case came on for trial on August 16, 1982, the following claims were pending:

(1) Rice's Jones Act and maritime tort claims against Glad Hands, Sea Level and C.S.I.;

(2) Rice's maritime tort claims against Amoco;

(3) Rice's maritime tort claims against Transco;

(4) cross claims between Glad Hands, C.S.I., and Sea Level;

(5) third party claims by Glad Hands, C.S.I., and Sea Level against their P & I insurers;

(6) cross claims between Amoco and Glad Hands, C.S.I., and Sea Level;

(7) cross claims between Transco and the other defendants;

(8) third party claim by Transco against McDermott;

(9) cross claims by McDermott against Sea Level, Glad Hands, and C.S.I.;

(10) cross claim by Amoco against McDermott;

(11) third party claim by Glad Hands against its CGL insurers; and

(12) intervention by Commercial Union for reimbursement if Rice recovered.

Seaman status was an issue in at least the first group of claims.

After the first day of trial, Rice reached a settlement agreement with Glad Hands, Sea Level, C.S.I., and their P & I insurers. Before testimony was resumed on August 19, 1982, the third day of trial, Rice also settled with Amoco. The settlements satisfied all claims by Rice against the four defendants and their insurers under the Jones Act and/or general maritime law but specifically reserved any rights Rice might have against Glad Hands and Commercial Union under the LHWCA.

On the first day of trial a few questions relating to status were directed to co-workers of Rice. Rice did not testify that day. No testimony was taken on the second day. When testimony was resumed on the third day of trial, after the settlements, Rice took the stand. His counsel did not ask any question relevant to seaman status. No questions relating to seaman status were asked of any witness on the fourth and final day of trial. It is immediately apparent from the transcript that after the settlements, trial counsel did not consider seaman status to be a matter of concern.

Upon conclusion of the trial, the jury returned a verdict absolving Transco, the sole remaining defendant, of all claims of negligence. After entry of the verdict, the court asked the parties to note the claims which were not resolved. Letters of counsel in the record reflect that only Commercial Union's intervention remained open after the jury verdict. All other claims had been settled, dismissed or become moot. Commercial Union claimed that it was entitled to reimbursement from the settlement which Rice had received whether he was a seaman or a longshoreman. Nevertheless, Commercial Union asked the court to declare that Rice was a seaman and to grant recovery on that basis. Commercial Union apparently wanted to have its recovery on the intervention based upon a determination that Rice was a seaman to foreclose future LHWCA claims by Rice, such claims having been reserved under the settlement.

According to the statements of counsel at oral argument before this court, in this setting, and for this specific purpose, the trial judge asked the parties to stipulate that seaman status could be determined on the record as then constituted, and such a stipulation was then made by the parties remaining in the case. It is not possible to determine the terms of the stipulation from the record because, as noted, the...