Roberts v. Cardinal Services Inc.

• Citation: 266 F.3d 368
• Decision Date: 02 October 2001
• Docket Number: No. 00-31232,KERR-MCGEE,00-31232
• Parties: (5th Cir. 2001) RUSTY ROBERTS, individually and on behalf of their minor children, Chase & Jarod Roberts; Sandra Roberts, Plaintiffs-Appellants, v. CARDINAL SERVICES, INC.; ET AL.; Defendants, CARDINAL SERVICES, INC.;CORPORATION, successor-in-interest to Oryx Energy Company, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 368

266 F.3d 368 (5th Cir. 2001)

RUSTY ROBERTS, individually and on behalf of their minor children, Chase & Jarod Roberts; Sandra Roberts, Plaintiffs-Appellants, v. CARDINAL SERVICES, INC.; ET AL.; Defendants, CARDINAL SERVICES, INC.; KERR-MCGEE CORPORATION, successor-in-interest to Oryx Energy Company, Defendants-Appellees.

No. 00-31232

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October 2, 2001

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

Before JOLLY, SMITH, and WIENER, Circuit Judges.

WIENER, Circuit Judge

This maritime action was brought in district court against Defendant-Appellee Cardinal Services, Inc. ("Cardinal") under the Jones Act,¹ and against Defendant-Appellee Kerr-McGee Corporation ("Kerr-McGee") as successor-in-interest to Oryx Energy Company, under the Louisiana Civil Code's provisions governing negligence,²premises liability,³ and strict liability,⁴ which are incorporated by reference through the Outer Continental Shelf Lands Act ("OCSLA").⁵ Suit was filed by Plaintiffs-Appellants Rusty Roberts and his wife, Sandra Roberts, individually and on behalf of their minor children (collectively "Plaintiffs") after Rusty Roberts, an employee of Cardinal, was injured while working on a stationary offshore platform owned by Oryx and subsequently acquired by Kerr-McGee.⁶ The Plaintiffs now appeal the district court's grants of summary judgment dismissing their claims against Cardinal and Kerr-McGee. We affirm.

I. Facts and Proceedings

Cardinal provides a range of services to the energy industry in Louisiana and Texas as well as in the Gulf of Mexico offshore those states. Among the oil and gas well services performed by Cardinal in those areas are wireline, electric line, plugging and abandoning ("p&a"), cementing, and pumping services, as well as acquisition and interpretation of oilfield data. Cardinal's offshore services are performed on both fixed and movable facilities belonging to others as well as on board its own "liftboats."

Roberts worked for Cardinal in its p&a department from 1996 until the date of his injury in 1998, first as a p&a helper and then, following a promotion, as a p&a operator. The Kerr-McGee platform on which he was injured while helping to perform a p&a operation is located on the outer Continental Shelf in the Gulf of Mexico, off the Louisiana coast. He was injured by the accidental firing of a perforation gun attached to a wireline that was being used on the platform by the crew of which he was a member in connection with plugging a well. (A "wireline" is a continuous cable used to perform various subsurface functions in a well, including the lowering and raising of various tools, instruments, and other devices. One of the downhole tools used on a wireline is a "perforation gun," a device that originally used cartridges similar to rifle or pistol ammunition but evolved to use "shaped charges," cylinder-shaped ammunition which is cone-shaped internally and fires directionally. It is formed in layers, one a brittle compound of explosive material and the other a metal alloy. When fired by any of several methods, this bazooka-like ammunition shoots a short, concentrated stream of molten alloy or "plasma" in the direction at which the open end of the charge's conically shaped interior is aimed. Generally, perforating guns are used either early in the life of a well to fractionate ("frac") a hydrocarbon-bearing formation or zone so as to commence or enhance production or, late in the life of a well or of a particular formation, to perforate casing or tubing in preparation for "squeezing" or sealing off the well or the zone to "plug and abandon" it.)

On the evening of Roberts's injury, the Cardinal crew was attempting a p&a job on the platform in question. Cardinal was responsible for all aspects of the project, Kerr-McGee having reserved only the right to observe and inspect Cardinal's work to ensure its satisfactory completion. The Cardinal crew had assembled a perforating gun, with its shaped charges aimed in a single direction, and had lowered the gun into the well on a wireline. This particular gun included an exterior sleeve and was rigged to fire when the pressure around it increased to a predetermined pounds-per-square inch (psi) level. During its initial descent down the well, the gun encountered a closed or partially closed downhole valve, so the crew reversed the downward direction of the wireline, raising it and the attached perforation gun to the top of the wellbore, close to which Roberts was standing. A valve in the well tubing below was then opened by a Cardinal employee, resulting in a sudden increase in pressure in the wellbore, which presumably caused the gun to fire.⁷ Unfortunately, the shaped charges happened to be aimed in Roberts's direction, and he was severely injured when they fired.

In their lawsuit, the Plaintiffs asserted negligence claims against Roberts's employer, Cardinal, under the Jones Act, advancing that he was a seaman. They brought negligence, premises liability, and strict liability claims against Kerr-McGee as owner of the platform, asserting responsibility under Louisiana law as incorporated by reference in the OCSLA.⁸

Cardinal filed a motion for summary judgment in which it asserted that Roberts did not have a sufficient temporal connection to a Cardinal vessel or fleet of vessels to be a Jones Act seaman. Agreeing with Cardinal as a matter of law, the district court granted summary judgment and dismissed the Plaintiffs' claims against the employer.

Kerr-McGee also filed a motion for summary judgment in which it asserted that the Plaintiffs could not prevail on any of the theories of Louisiana law that they proffered under the OCSLA. As the Plaintiffs did not oppose Kerr-McGee's summary judgment motion on the premises liability claims asserted under articles 2317.1 and 2322 of the Louisiana Civil Code, the court granted Kerr-McGee's motion as to those claims, and the Plaintiffs do not re-urge them on appeal.

The Plaintiffs conceded that, in its contract with Cardinal for the performance of the May 1998 p&a operation, Kerr-McGee had not retained the requisite operational control to support the imposition of liability for the allegedly negligent acts of its independent contractor, precluding recovery against Kerr-McGee vicariously for any negligence of Cardinal. The Plaintiffs therefore grounded their arts. 2315 and 667 negligence and strict liability claims against Kerr-McGee on allegations that the use of a wireline perforation gun in the p&a operation on Kerr-McGee's platform was an "ultrahazardous activity."

The district court granted Kerr-McGee's summary judgment motion and dismissed these claims after refusing to classify wireline perforation as ultrahazardous under Louisiana law because it is a common activity in the oilpatch that can be and indeed generally is performed safely. Plaintiffs timely filed a notice of appeal.

II. Analysis

A. Standard of Review

We review a grant of summary judgment de novo, applying the same standard as the district court.⁹ A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact.¹⁰ An issue is material if its resolution could affect the outcome of the action.¹¹ In deciding whether a fact issue has been created, we must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.¹²

Determination whether an injured worker is a seaman under the Jones Act is a mixed question of law and fact.¹³ "If reasonable persons, applying the proper legal standard, could differ as to whether the employee was a 'member of a crew,' it is a question for the jury. ... Nonetheless, summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion."¹⁴ Our review of such a mixed question is plenary.

The standard for summary judgment mirrors that for judgment as a matter of law.¹⁵ Thus, the court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence.¹⁶ In reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party as well as that evidence supporting the moving party that is uncontradicted and unimpeached.¹⁷

B. Seaman Status under the Jones Act

The district court's grant of Cardinal's motion for summary judgment was grounded in the determination that Roberts was not a seaman, and thus not eligible to recover under the Jones Act. This conclusion was based on the court's finding that Roberts did not have the requisite "substantial connection" to a vessel or an identifiable fleet of vessels under Cardinal's common ownership or control.

The Jones Act provides that "any seaman" who sustains personal injury in the course of his employment may maintain an action for damages at law, with the right of a trial by jury.¹⁸ The Act does not define "seaman," and "therefore leaves to the courts the determination of exactly which maritime workers are entitled to admiralty's special protection."¹⁹ When Congress enacted the Longshore and Harbor Workers' Compensation Act ("LHWCA")²⁰ in 1927, it furnished some content to the term "seaman," albeit indirectly. The LHWCA provides a remedy for land-based maritime workers who are injured during their employment, but the Act explicitly excludes from its coverage "a master or member of a crew of any vessel."²¹ In Chandris, Inc. v. Latsis, the Supreme Court reiterated that "the Jones Act and the LHWCA are mutually exclusive compensation regimes," and that the LHWCA's reference to "a master or member of a crew" is "a refinement of the term 'seaman' in the Jones Act."²² Thus, the inquiry into seaman status for Jones Act purposes requires a determination whether the injured plain...