Roberts v. Williams-McWilliams Co., Inc.

• Decision Date: 16 June 1981
• Docket Number: No. 77-2127,WILLIAMS-M,77-2127
• Parties: Charles Edwin ROBERTS, Sr., Plaintiff-Appellant, v.cWILLIAMS CO., INC., Defendant-Appellee, v. GIBSON WELDING AND CONSTRUCTION CO., Defendant, Exxon Corporation, Defendant-Appellee, Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 255

648 F.2d 255

Charles Edwin ROBERTS, Sr., Plaintiff-Appellant, v. WILLIAMS-McWILLIAMS CO., INC., Defendant-Appellee, v. GIBSON WELDING AND CONSTRUCTION CO., Defendant, Exxon Corporation, Defendant-Appellee, Appellant.

No. 77-2127.

United States Court of Appeals Fifth Circuit.

June 16, 1981.

August J. Bubert, Metairie, La., for plaintiff-appellant.

Bertrand M. Cass, Jr., Eileen R. Madrid, Allen F. Campbell, New Orleans, La., for Williams-McWilliams.

E. Burt Harris, Rene J. Mouledoux, New Orleans, La., for Exxon Corp.

Robert A. Vosbein, Mark J. Spansel, New Orleans, La., for Gibson Welding & Const.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, HENDERSON and SAM D. JOHNSON, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Once again we are confronted with an amphibious multiparty donnybrook. See T. J. Stevenson & Co., v. 81,193 Bags of Flour, 629 F.2d 338, 341 & n. 1 (5th Cir. 1980). Plaintiff, Charles Edwin Roberts, Sr., an employee of Gibson Welding Co., appeals District Court's denial of his motions for directed verdict and judgment n. o. v. on his claim for Jones Act seaman's/borrowed servant status in action for damages resulting from injuries sustained aboard the Exxon Corporation barge DB-1 while performing welding duties for Williams-McWilliams Co. He also complains District Court erred (i) in granting Exxon's motion for directed verdict on the issue of unseaworthiness of the vessel and (ii) refusing to more fully answer the question posed by the jury during its deliberations regarding the interrogatories. Exxon cross-appeals its judgment of liability and denial of indemnification from Williams. Determining (i) Roberts qualified as a seaman, (ii) District Court properly directed verdict on the issue of unseaworthiness (iii) Exxon's action for indemnification is not barred, and (iv) the jury should have been instructed in response to its question on the legal effects of its answer to the interrogatories, we affirm in part, and reverse and remand in part.

A Call of Nature

Having worked as a welder for approximately fourteen years for various companies doing land-based work, Roberts was hired by Gibson, a labor service company that supplied welders to various drilling companies on an hourly basis. Although Gibson did some offshore work, at the time of Roberts' employment, most of its work was land-based. On the same day of Roberts' employment, September 25, 1974, Williams arranged with Gibson to temporarily acquire additional welders. Roberts, along with several other Gibson employees, was sent by crewboat to Williams' barge W-701 ¹ the next day to work. ² While on the W-701, Roberts worked under the direct supervision of a Williams employee fitting, fabricating, and repairing dolphins ³ pursuant to Williams' contract with Exxon. Although Gibson often also rented welding equipment when contracting out employees, Williams furnished its own welding machines, torches, rods, and other tools to be utilized by Roberts and the other Gibson welders on this job.

Because no sleeping quarters were available on the W-701, Roberts and two other Gibson employees were sent at the end of the work day to sleep aboard Exxon's barge, the DB-1. A janitor showed them to their quarters, a stateroom containing six sleeping berths, three of which were already occupied. The other two Gibson employees made their bunk selections first, leaving Roberts with a top berth. Although the berth's light was not working, presumably due to a burned out bulb, and a large overhead steel support beam ran perpendicular to the middle of the bunk, the general structure of the sleeping quarters was in compliance with Coast Guard regulations. ⁴

During the middle of the night, Roberts tried to get out of his berth to answer what he described as "a call of nature." Since his berth light was not functioning and he could not reach the overhead light switch, Roberts attempted to climb out in the dark. Because his bunk was not equipped with a ladder, Roberts slid out facing the bunk. While attempting to step down on the lower bunk, he slipped and fell to the floor, suffering a ruptured disc for which he remains permanently partially disabled.

Three days later, Gibson and Williams executed a document entitled "Hold Harmless Agreement," formalizing the temporary addition of Gibson employees to Williams' welding crew.

To recover for his injuries, Roberts brought this action against Gibson and Williams under the Jones Act and against Williams and Exxon under general maritime tort law for negligence. ⁵ In addition, Roberts filed a claim against Gibson for maintenance, cure, and attorneys fees for its arbitrary refusal to pay the full maintenance and cure due. Subsequent to the filing of the original complaint, various third-party claim demands and cross-complaints were filed by the defendants. Specifically, Exxon cross-claimed against Williams while Williams filed a cross-claim against Gibson, both seeking contractual indemnity. A third-party complaint was filed by Exxon against A. M. Landry and Sons (Landry), who supplied catering and janitorial services to the DB-1. Aetna Casualty and Surety Company (Aetna), who had issued a policy of Employers Liability Insurance to Gibson, intervened, seeking reimbursement of amounts paid to Roberts for compensation and medical benefits.

After District Court dismissed the unseaworthiness claim on directed verdict, the issues relative to seaman's status, borrowed servant, liability of the defendants, and damages were submitted to the jury by thirteen special interrogatories and two advisory interrogatories. During the course of its deliberations, the jury asked whether or not, assuming a finding of contributory negligence, the damages would be reduced in proportion to that finding. An unreported conference among all counsel and the Court was held. Although Roberts argued the jury's question should be answered, District Court overruled, instructing the jury the answer to their question was contained in interrogatory thirteen.

The jury found Roberts was the borrowed servant of Williams, but not a seaman. Although all the defendants were found negligent, the jury concluded only Exxon's negligence was a proximate cause of the accident while Williams' negligence was determined to be only a contributing cause. Despite these findings, the jury also held Roberts contributed fifty percent to the cause of his injuries, fixing his damages at $93,000 without reduction for his own negligence. ⁶ In accordance with this verdict District Court entered judgment in favor of Roberts against Exxon and his claims against Williams and Gibson were dismissed.

After a subsequent trial to the Court of the defendants' various cross-claims, District Court entered judgment in favor of Gibson dismissing Williams' action, and in favor of Williams, dismissing Exxon's claims for indemnity. District Court concluded although the contract between Gibson and Williams was retroactive, it only indemnified Williams for damages resulting from claims arising out of or resulting from the performance of work covered by the agreement while Exxon's claim against Williams was barred by both § 905(b) of the LHWCA and the terms of the contract itself. In addition to these findings, District Court entered judgment in favor of Gibson and intervenor Aetna in the amount of $6,829.20 for medical expenses and compensation benefits paid to Roberts. ⁷

It is from these findings and judgments, Roberts appeals and Exxon cross-appeals. ⁸

A Borrowed Jones Act Seaman

Roberts first argues District Court erred in refusing to grant his motions for directed verdict and judgment n. o. v. on the issue of Jones Act seaman's status. Citing our well-established test as enunciated in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959), ⁹ Roberts contends District Court should have acknowledged him a seaman since he (i) was performing welding duties which contributed to the function of the W-701 to repair the dolphins, and (ii) met the test's permanency requirement as he was hired for an indefinite period of time. Moreover, he claims not only was he a Jones Act seaman with respect to Gibson, but the facts establish Williams was his Jones Act borrowing employer.

Exxon joins Roberts in these Jones Act contentions, asserting "(t)here was no evidentiary basis from which inferences could be drawn which would have denied (Roberts') seaman status." Arguing Roberts' employment met the permanency test of Robison, Exxon also points out, although on Gibson's payroll, Roberts was hired to supplement the regular Williams' employees and work under Williams' direction and control.

In response, Gibson submits Roberts is not a seaman because he did not perform a substantial part of his work aboard a vessel with at least some degree of regularity and continuity. Williams reiterates this contention, also arguing (i) Roberts was earmarked for an isolated portion of work, (ii) a substantial part of Roberts' work was on a fixed platform, (iii) Roberts was to return to shore on completion of his work, and (iv) there was no evidence how long Roberts was to have been employed. Due to these facts, Gibson and Williams assert Roberts' employment was so sporadic as to not sufficiently satisfy the requirements of seaman's status and District Court was correct in denying Roberts' motion for directed verdict. Additionally, Williams submits whether or not an injured worker meets the established tests of seamanship should be considered independently of the worker's status as a borrowed employee.

When faced with a motion for directed verdict regarding Jones Act status, District Court should leave a marginal claim for the jury's determination. Caldwell v. Manhattan Tankers, 618 F.2d 361, 363 (5th Cir. 1980); Leonard v. Exxon Corp., 581 F.2d 522, 524 (5th Cir. 1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 397 (1979). The motion...