Savoie v. McCall's Boat Rentals, Inc.

• Decision Date: 25 June 1986
• Docket Number: No. 85-582,85-582
• Parties: Richard Michael SAVOIE, Plaintiff-Appellee, v. McCALL'S BOAT RENTALS, INC., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 94

491 So.2d 94

Richard Michael SAVOIE, Plaintiff-Appellee, v. McCALL'S BOAT RENTALS, INC., Defendant-Appellant.

No. 85-582.

Court of Appeal of Louisiana Third Circuit.

June 25, 1986.

Gelpi, Sullivan, Carroll & LaBorde, Gerart T. Gelpi and Richard O. Kingrea, New Orleans, for defendant-appellant.

Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for plaintiff-appellee.

Camp, Carmouche, David Frohn, Lake Charles, for intervenor-appellee.

Before STOKER and KING, JJ., and COX, J. Pro Tem. ^*

KING, Judge.

Richard Michael Savoie (hereinafter referred to as the plaintiff) brought suit to recover damages for personal injuries sustained by him on September 28, 1982, while being transported by a personnel basket from the deck of the M/V Doreen McCall to a stationary platform located in West Cameron Block 171 of the Gulf of Mexico.

The plaintiff filed suit in the Thirty-Eighth Judicial District Court in and for Cameron Parish, Louisiana on November 15, 1983, against McCall's Boat Rentals, Inc. (hereinafter referred to as McCall) alleging negligence and unseaworthiness against McCall and the M/V Doreen McCall. Additionally, the plaintiff sought an award of punitive damages based on McCall's allegedly arbitrary and capricious fault. Subsequently, on June 19, 1984, the plaintiff filed a First Supplemental and Amending Petition adding as a defendant, McCall's insurer, American Home Assurance Company (hereinafter referred to as the defendant). A Second Supplemental and Amending Petition was filed by plaintiff on July 12, 1984, adding as a defendant N.F. McCall Crews, Inc., who furnished the crew of the M/V Doreen McCall. National Union Fire of Pittsburgh, Pennsylvania, filed a Petition of Intervention on May 18, 1984, and subsequently supplemented and amended its petition seeking reimbursement for worker's compensation and medical expenses paid by it to plaintiff.

McCall answered plaintiff's petition and excepted, based upon prescription, and moved to strike the unseaworthiness claim after the initial suit was filed. After a hearing the motion to strike was granted and the exception was overruled. McCall timely answered all further supplemental petitions of the plaintiff and the intervenor.

This matter came to trial before a jury on January 14, 1985. During the course of the trial, the plaintiff dismissed his claims against McCall and M.F. McCall Crews, Inc. and his claim for punitive damages. Following trial by jury, judgment was entered pursuant to the jury verdict on February 21, 1985, in favor of the plaintiff and against the defendant, American Home Assurance Company, for $650,000.00 together with legal interest from date of judicial demand, until paid. Judgment was rendered in favor of National Union on its intervention for $56,108.98 together with legal interest, to be paid from plaintiff's award. The defendant appeals and alleges the following assignments of error:

(1) The defendant was denied a fair and impartial trial when the trial court failed to grant its motion for a change of venue;

(2) The trial court erred in denying the defendant's challenges of potential jurors for cause, forcing the defendant to exhaust its peremptory challenges prematurely;

(3) The trial court erred in denying the defendant's motion to strike the plaintiff's jury demand because the substantive general maritime law governing plaintiff's claim does not entitle him to a jury trial;

(4) The jury's verdict was manifestly erroneous;

(5) The trial court erred in refusing to allow the defendant to cross-examine the plaintiff concerning compensation payments he had received;

(6) The trial court erred in failing to allow the defendant to rebut the plaintiff's counsel's statement that a verdict against the defendant would not financially affect its insured(s);

(7) The trial court's failure to submit an interrogatory to the jury, which would have enabled it to determine Mobil Oil Exploration & Producing Southeast, Inc.'s fault, was reversible error;

(8) The trial court erred in instructing the jury that the Pennsylvania Rule applied to the facts of the case; and

(9) The jury's award of pre-judgment interest was clearly erroneous.

FACTS

On September 28, 1982, plaintiff, an electrical technician employed by Mobil Pipeline Company and a passenger aboard the M/V Doreen McCall, a 110 foot crewboat owned by McCall, was being transported to a platform owned by Mobil Oil Exploration & Producing Southeast, Inc. (hereinafter referred to as MOEPSI) in West Cameron Block 171 in the Gulf of Mexico off Louisiana's coast.

The plaintiff and other personnel departed MOEPSI's Grand Chenier dock in Cameron Parish, Louisiana at approximately 7:00 A.M. for the one to one and a half hour trip to the platform known as West Cameron 171. Although the M/V Doreen McCall normally operated with a crew of three, the crew for this trip was composed of Captain Hunott and one deckhand, Wiley Thomas.

Upon arrival at the platform, Captain Hunott positioned the vessel for James Hebert, MOEPSI's platform crane operator, to offload men and materials using the platform's crane and attached basket. There was nothing unusual about the weather or sea conditions at this time. This crane was used to lower the personnel basket to an open spot on the stern deck of the vessel, approximately 20 to 25 feet to the rear of the vessel from the aft door of the living quarters. The remainder of the stern deck was covered with the equipment of MOEPSI and/or its contractors, which had been loaded by MOEPSI hands. The unloading process ultimately required several lifts of the basket to remove all the passengers and equipment from the vessel. The plaintiff, along with fellow passengers Noel Geneste, Marvin Woodard, and Ralph Swire, were to be offloaded first. Geneste, facing aft, and Woodard, facing forward, had already gotten onto the personnel basket and the plaintiff had begun to board the basket, when the basket was suddenly jerked into the air. After dangling, supported by his arms approximately 20 feet in the air, plaintiff was able to climb into the basket and was brought onto the platform.

The plaintiff and Marvin Woodard both testified the crane was raised upon signal given by the vessel's deckhand. Hebert, the crane operator, indicated that he raised the personnel basket on the signal of either the vessel's deckhand or engineer. Captain Hunott testified it was the deckhand's responsibility to give the signal to raise the basket to the crane operator.

As a result of this accident, plaintiff sustained an arm injury. After the accident, plaintiff was transported back to land by helicopter in order to be examined and treated by a physician. Plaintiff testified that as a result of this accident, he suffered an immediate injury to his right arm and that as time progressed he began experiencing pain and problems in his neck, back and legs. Plaintiff has not been able to return to his regular job since the accident.

CHANGE OF VENUE

The defendant first claims that it was denied a fair and impartial trial when the trial judge failed to grant its motion for a change of venue. The defendant argues that because the plaintiff was the son of the Sheriff of Cameron Parish, Louisiana, it was impossible for it to obtain a fair and impartial trial before a Cameron Parish jury. The defendant also argues that the trial court's refusal to grant its motion for a change of venue constitutes reversible error because the jury venire was composed of several former clients of the plaintiff's attorney as well as a spouse of a parish employee.

La.C.C.P. Art. 122 provides that:

"Any party by contradictory motion may obtain a change of venue upon proof that he cannot obtain a fair and impartial trial because of the undue influence of an adverse party, prejudice existing in the public mind, or some other sufficient cause. If the motion is granted, the action shall be transferred to a parish wherein no party is domiciled."

However, a change of venue is discretionary with a trial judge and will not be disturbed absent a clear abuse of discretion. Deville v. Leonards, 457 So.2d 311 (La.App. 3rd Cir.1984).

This court has previously noted the special situation which exists in Cameron Parish. The case of Faulk v. Schlumberger Well Services, 412 So.2d 162 (La.App. 3rd Cir.1982), in which a similar argument was made to that now being made in this suit, arose out of the death of a prominent Cameron Parish citizen and police juror in an intersectional collision. His widow, who then campaigned to fill the vacant seat on the parish police jury, sued the defendants in tort. The attorney for the plaintiff-widow was the same attorney involved in the instant suit and the same trial judge presided in that case. The defendants in Faulk sought a change of venue alleging that it was impossible for them to receive a fair and impartial trial by jury due to the widespread publicity of the case in the local area.

This court, in affirming the trial judge's denial of the defendant's motion for a change of venue, noted that:

"[d]uring the jury selection process, counsel probed particularly into the relationships of all prospective jurors subjected to voir dire examination which might indicate close friendship with plaintiff's counsel, the deceased, or any of the plaintiffs. Several were challenged for cause, and the trial court excused all but one of five jurors so challenged by Schlumberger's counsel. Throughout voir dire examination, the trial judge was alert to discover any close relationships or friendships between the prospective jurors and the parties and counsel. Many were excused by the court on its own motion without the necessity of counsel having to challenge the prospective jurors either for cause or peremptorily. The trial court was quite diligent in screening the jury of jurors who might possibly have been unable to be objective and fair." Faulk v. Schlumberger Well Services, 412 So.2d 162, at...