Romero v. Mobil Exploration

• Citation: 727 F. Supp. 293
• Decision Date: 23 October 1989
• Docket Number: Civ. A. No. 87-0972-L.
• Parties: John David ROMERO, et al. v. MOBIL EXPLORATION, et al.
• Court: U.S. District Court — Western District of Louisiana

727 F. Supp. 293

John David ROMERO, et al. v. MOBIL EXPLORATION, et al.

Civ. A. No. 87-0972-L.

United States District Court, W.D. Louisiana, Lafayette Division.

October 23, 1989.

Anthony D. Moroux, Moroux, Domengeaux & Davis, Lafayette, La., John G. DeRussy, DeRussy, Bezou & Matthews, New Orleans, La., Nathan A. Cormie, Terry O. Johnson, Lake Charles, La., Jennings B. Jones, Cameron, La., Wilford D. Carter, and L. Donald Foreman, Foreman & Canaday, Lake Charles, La., for plaintiffs.

R.K. Christovich, Christovich & Kearney, New Orleans, La., for Monsun Hydraulics.

Huntington B. Downer, Jr., Houma, La., for Patterson Services.

George H. Robinson, Jr., and Mark A. Lowe, Liskow & Lewis, Lafayette, La., for Mobil Exploration.

Gary P. Kraus, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, La., for Aries Marine.

Allen L. Smith, Jr., Plauche, Smith & Nieset, Lake Charles, La., for intervenors, Otis Engineering, Highlands Ins. and Ins. Co. of North America.

W. Seaborn Jones and Robert L. Todd, Hurt, Richardson, Garner, Todd & Cadenhead, Atlanta, Ga., and Patrick A. Juneau, Jr., Juneau, Hill, Judice, Hill & Adley, Lafayette, La., for Rexroth and Allianz.

RULING

NAUMAN S. SCOTT, District Judge.

Before us is a Motion to Reconsider our Ruling of September 7, 1989 (the Ruling) (attached Appendix A) and a request to enter an order rescinding the Ruling. This Motion is filed by Rexroth Corporation (Rexroth) and is joined by plaintiffs Mary Alexander and Walter Thibodeaux (Movers). The Ruling granted summary judgment to Mobil Exploration and Producing North America, Inc. (Mobil).

Movers address their motion to those parts of our Ruling which held: (1) Mobil did not retain a right to exercise operational control over a snubbing procedure conducted on its fixed gas platform by snubbing contractor Otis Engineering Corporation (Otis); and (2) snubbing is not ultrahazardous as a matter of law. Generally, a principal is not vicariously liable for injuries sustained by employees of his independent contractor unless operational control exists or unless the activity is ultrahazardous. Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 549 (5th Cir.1987).

I. Ultrahazardous Activity

To determine whether snubbing is ultrahazardous, we must compare it to activities previously held to be ultrahazardous and non-ultrahazardous. Touchstone v. G.B.Q. Corp., 596 F.Supp. 805 (E.D.La. 1984) (citations omitted). Both the Fifth Circuit and the Louisiana Supreme Court have held that drilling is not ultrahazardous. Ainsworth, 829 F.2d at 550 (citations omitted). Because we find snubbing to be one particular form of drilling, we see no reason why we should oppose those courts which hold that drilling is not ultrahazardous. Thus, we find that snubbing is not ultrahazardous as it is in essence a drilling operation.

II. Operational Control

In Grammer v. Patterson, 860 F.2d 639 (5th Cir.1988), the court explained that "operational control only arises if the principal `exercises direct supervision over the step-by-step process of accomplishing the work'." Id. at 643 (quoting Guillory v. Conoco, Inc., 521 So.2d 1220, 1223 (La. App.Ct. 3d Cir.1988)). To properly decide this issue, we must determine what is meant by the phrase `step-by-step supervision', and define the word `work'.

We think that `direct or step-by-step supervision' refers to the case where the principal substitutes the independent contractor's entire method and manner of operation for one of its own. Wallace v. Oceaneering Int'l, 727 F.2d 427 (5th Cir.1984). "It is not enough that the principal has merely a general right ... to prescribe alterations or deviations." Restatement (Second) of Torts § 414 comment c (1965). Quite simply, "there must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way." Id. Thus, the giving of specifications and the demand that certain operational standards be met is insufficient to hold that a principal has retained the right to exercise operational control. Id.

For example, in Grammer v. Patterson, 860 F.2d 639 (5th Cir.1988), the court held that the principal's instructions regarding alterations in the independent contractor's normal operating procedure did not amount to control over "how to" conduct the job. Id. at 645. When faced with the argument that the principal's instructions prohibited the independent contractor from "being entirely free to do the work in his own way," and thereby rose to the level of operational control, the court disagreed:

Certainly Gator Hawk was not free to do any work it wished. Patterson's instructions expressly designated a new ... test which reflected a variation in Gator Hawk's normal tests.... However, Gator Hawk was free to, and did, conduct the testing in its own way.

Id. (emphasis added).

We think that "work" refers to the actual undertaking, and not to the preparatory, testing, or planning stages. We exclude those areas from our inquiry because we believe that a principal may exercise control over such matters. There is no question that a principal may specify "that which an independent contractor is to accomplish," Grammer, 860 F.2d at 645, and may monitor work progress and run field tests. Guillory, 521 So.2d at 1223.

Finally, we emphasize that the right to exercise control is the primary concern, and not whether actual control was exercised. Smith v. Crown Zellerbach, 486 So.2d 798, 801 (La.App.Ct. 1st Cir.), writ denied, 489 So.2d 246 (La.1986). Ordinarily, the right to exercise control is evidenced by the contract between the principal and the independent contractor. Here, no written contract exists. In the absence of a written contract, the best way to decide whether a right to exercise control exists is to examine the degree of control that was or could be exercised by the principal on this job and during past undertakings similar to the one at hand.

A. The Snubbing Guide

Movers argue that Mobil's Snubbing Guide (the Snubbing Guide) is a codification of Mobil policy which existed prior to and at the time of this accident. However, the Snubbing Guide was produced several months after the accident. Accordingly, Mobil argues that the Snubbing Guide is a subsequent remedial measure and therefore excluded from evidence under Fed.R. Evid. 407. Movers argue that the Snubbing Guide may be introduced as evidence under an exception to Rule 407 that would permit its introduction for the purpose of proving Mobil's control of the snubbing operation. Although we do not decide the issue at this time, we will assume for purposes of the motion now before us that the Snubbing Guide is permissible evidence and was in effect both before and at the time of the accident.

Section 3.1.8 of the Snubbing Guide, entitled "Work Basket and Control Panel," states:

The (jack) operator must be able to monitor the hydraulic system pressure but must not have the capability to change it from the basket. Pressure changes can only be made at the power pack after being approved by the Mobil and snubbing company supervisors.

Movers argue that instructions such as this create a factual dispute over whether Mobil retained the right to exercise direct supervision over the step-by-step process involved in snubbing jobs.

If viewed in isolation, we realize that such instructions may be construed as designating a "step-by-step" process for accomplishing the work. However, when viewed as a whole, the instructions of the Snubbing Guide unquestionably fail to reach that level.

The preface of the Snubbing Guide states that while "these guidelines are to be used by engineering and operations personnel, they do not replace the need for sound judgment by all individuals involved in snubbing operations. Mobil's first priority is the safety of all personnel involved in snubbing operations." (emphasis added). Thus, the overall purpose of the Guide is to ensure that accidents are avoided. In this regard, we note that a principal demanding compliance with measures designed to ensure safety has not exercised the type of operational control required to shift liability. See Smith, 486 So.2d at 802. When read in light of the Snubbing Guide's overall purpose, the previously quoted passage does not imply control over the manner of performance, but rather refers to the danger which could result if the jack operator had unilateral control over the hydraulic pressure available to the jack:

The pressure is controlled through a series of hydraulic regulators and dump valves.... One system allows the jack operator to select pump stages to regulate the hydraulic pressure and volume. The disadvantage of this system is that snubbers are tempted to select too many pump stages since jack speed depends on the volume of fluid available. This results in excessively high hydraulic pressure available to the jack. (emphasis added)

Without doubt, Mobil's alleged right to control this matter is designed to prevent excessive hydraulic pressure from being used. As we understand snubbing, excessive hydraulic pressure could cause an accident much like the one in the instant case. The other examples from the Snubbing Guide which Movers cite are similarly designed to ensure safety, such as: (1) approving the testing of snubbing units before snubbing begins; (2) providing an emergency escape route for workers in the basket, and requiring that workers in the basket wear fire resistent clothing; (3) ensuring that the blind/shear control be manned at all times during snubbing; and (4) demanding that the window guides be secured at all times.

In sum, the only conclusion is that the Snubbing Guide is not designed to give snubbing contractors directions on how to perform any aspect of the actual snubbing operation. Quite simply, the Guide concerns itself with how to prepare for a snubbing job so that accidents are avoided and so that Mobil personnel understand what the snubbing contractor is...