Theriot v. Bay Drilling Corp.

• Decision Date: 20 February 1986
• Docket Number: No. 84-4576,84-4576
• Citation: 783 F.2d 527
• Parties: Eugene Joseph THERIOT, Plaintiff-Appellant Cross Appellee, v. BAY DRILLING CORPORATION, Defendant-Third Party Plaintiff-Appellee Cross Appellant, and Oilfield Services of Louisiana, Inc., et al., Defendants-Appellees, FIDELITY & CASUALTY COMPANY OF NEW YORK, Intervenor-Appellee, v. HOUSTON OIL & MINERALS CORPORATION, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 527

783 F.2d 527

Eugene Joseph THERIOT, Plaintiff-Appellant Cross Appellee, v. BAY DRILLING CORPORATION, Defendant-Third Party

Plaintiff-Appellee Cross Appellant,

and

Oilfield Services of Louisiana, Inc., et al., Defendants-Appellees, FIDELITY & CASUALTY COMPANY OF NEW YORK, Intervenor-Appellee, v. HOUSTON OIL & MINERALS CORPORATION, Third Party Defendant-Appellee.

No. 84-4576.

United States Court of Appeals, Fifth Circuit.

Feb. 20, 1986.

Baggett, McCall & Rainer, William B. Baggett, Lake Charles, La., for Eugene Joseph Theriot.

Simon, Peragine, Smith & Redfearn, Daniel J. Caruso, New Orleans, La., for Bay Drilling Corp., & Texaco.

Onebane, Donohoe, Bernard, Torian, Diaz, Timothy J. McNamara, Lafayette, La., for Oilfield Services of La., Inc.

Monroe & Lemann, C. Theodore Alpaugh, III, Richmond M. Eustis, New Orleans, La., for Atlas Assurance Co. of America.

Camp, Carmouche, Barsh, Hunter, Gray & Hoffman, David Bienvenu, Nancy A. Donovan, New Orleans, La., for Fidelity & Casualty Co., of N.Y.

Liskow & Lewis, S. Gene Fendler, New Orleans, La., for Houston Oil & Minerals.

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

Before GOLDBERG, RANDALL and JOHNSON, Circuit Judges.

RANDALL, Circuit Judge:

Appellants Eugene Joseph Theriot and Bay Drilling Corp. appeal from the judgments of the district court denying seaman status, determining negligence, assessing damages, and denying contractual indemnity. We affirm in part, but reverse and remand on the indemnity issue.

I. FACTS.

On January 28, 1980, Eugene Joseph Theriot ("Theriot") slipped and fell, injuring his right knee while employed in Galveston Bay on a drilling barge, the ROME, owned by Bay Drilling Corp. ("Bay Drilling"). Theriot, a torque-wrench operator, was a specialty worker employed by Oilfield Services of Louisiana, Inc. ("Oilfield Services") to "nipple up" (take off) and "nipple down" (replace) the blowout preventor and the Christmas tree on the well. Theriot had been assigned to the ROME since January 3, 1980. During the period prior to his accident, Theriot was on 24 hour call, logging 600 hours, of which only 80 hours were involved in actual nippling operations. Theriot went home to Opelousas, Louisiana, three or four times during this period, but remained "on call." On January 28, 1980, Theriot was called to assemble certain well head equipment. He and a coworker proceeded to the keyway deck where the blowout preventors were located. As Theriot crossed the deck, he encountered a large clearly visible area, approximately six to eight feet in diameter, of brown drilling mud. Continuing across the deck, Theriot slipped and fell in the mud, injuring his right knee.

Two days after the accident, Theriot saw Dr. Frederick L. Mayer. Dr. Mayer noted a limp, a mild swelling of the right knee, a bluish discoloration on the thigh, tenderness, and the inability to stoop or squat. On February 26, 1980, Dr. Lee Leonard performed an arthroscopic examination which revealed what appeared to be a fracture inside the knee. Three months later, Dr. Mayer again examined Theriot's knee; the results proved inconclusive. At that time an arthrotomy, wherein the knee joint is surgically opened, was performed. The arthrotomy revealed an inflammation of the capsule around the right knee joint. Dr. Mayer put Theriot on a course of physical therapy and exercise. By October 9, 1980, Dr. Mayer discharged Theriot to return to work, with a 10% to 15% partial permanent physical impairment of the entire right lower leg. Dr. Mayer advised discontinuance of supervised physical therapy, but instructed Theriot to continue exercising on his own.

On March 11, 1981, Theriot slipped and fell at work, twisting his ankle and leg, and reinjuring his right knee. Following this accident, Theriot was again examined by Dr. Mayer and by Dr. David Drez, Jr. After several months of problems, Theriot underwent a total patellectomy of the right knee which resulted in a 35-40% disability of the right leg, precluding Theriot from engaging in his former employment.

As a result of the January 1980 accident, Theriot brought an action against his employer, Oilfield Services, and the barge owner, Bay Drilling, for negligence and unseaworthiness of the barge. Bay Drilling filed a third party action against Houston Oil & Minerals Corporation ("Houston Oil") for indemnity under its drilling contract. Houston Oil, the operator of the oil and gas lease, had contracted for the services of both Oilfield Services and Bay Drilling. Fidelity & Casualty Company of New York ("Fidelity"), the compensation carrier of Oilfield Services at the time of the January 1980 accident, and Atlas Assured ("Atlas"), the excess liability insurer of Oilfield Services, intervened in the action. Fidelity sought to recover compensation and medical expenses paid to or on behalf of Theriot under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"). Fireman's Fund Insurance Company ("Fireman's Fund"), the compensation carrier for Oilfield Services after January 1980, intervened on the grounds that Theriot's disability was caused by the January 1980 accident and that it was entitled to benefits wrongfully paid to Theriot for the March 11, 1981, injury.

The suit was severed into three trials on the issues of seaman's status, liability and damages. At the first trial, the jury answered a special interrogatory finding that Theriot was not a "seaman and member of the crew" of the drilling barge. This finding was predicated upon jury instructions which required the jury to determine if Theriot had a "more or less permanent connection with the vessel" or performed a "substantial portion of his duties aboard a vessel." If the jury answered yes to either question, Theriot would be a seaman, the other elements of the Robison test ¹ having previously been met. The jury thus evidently found that Theriot did not have a permanent connection with the vessel and that he did not perform a substantial portion of his duties aboard the vessel. Oilfield Services and Atlas Assured were dismissed from the action.

In the second trial, the district court held Bay Drilling negligent in failing to clean the drilling mud off the keyway deck where Theriot worked. The court found that this negligence was not barred by Theriot's knowledge of an open and obvious danger. The court concluded that although Theriot should have known of the likelihood of mud on the deck, Scindia Steam Navigation Co. Ltd. v. De Los Santos, 451 U.S. 156, 167, 101 S.Ct. 1614, 1622, 68 L.Ed.2d 1 (1981), imposes liability despite the claimant's knowledge of a dangerous condition. After comparing the actions of both parties, the district court held Theriot and Bay Drilling equally at fault, reducing Theriot's total damages by one-half.

In the final trial, the court concluded that the January 1980 accident on the ROME caused a 15% disability in Theriot's right leg. The court found that the March 11, 1981, accident was not cause by Theriot's weakened knee, but occurred when Theriot slipped on a bolt. Theriot thus failed to prove that the injury which necessitated the patellectomy and resulted in a 35-40% disability of the right leg was proximately caused by the January 1980 ROME accident. The court concluded that as a result of the January 1980 ROME accident, Theriot was entitled to $23,865.58 in lost wages, $125,000.00 for past and future pain and suffering, and $15,860.32 in past medical expenses paid by intervenor Fidelity. Theriot's contributory negligence limited this recovery by 50%, providing for a judgment for Theriot against Bay Drilling in the amount of $82,362.95. The court also awarded Theriot interest at a rate of 10.10% from January 3, 1984. The court allowed Fidelity to recover from Theriot a total of $68,977.22, consisting of $53,166.90 in compensation benefits paid as of October 7, 1983, and $15,860.32 in medical expenses paid. Finally, the court denied intervenor Fireman's Fund any recovery because Theriot's increased disability was not caused by the January 1980 ROME accident.

In a supplemental opinion and order, the district court reasoned that the indemnity clause in the Houston Oil-Bay Drilling contract was governed by state, not maritime, law. Pursuant to Louisiana choice-of-law rules, the court found that Texas law controlled because the contract was accepted in Houston, Texas. The court then applied Tex.Rev.Civ.Stat.Ann. art. 2212b Sec. 1 (Vernon Supp.1984) to render the indemnity clause indemnifying Bay Drilling for its own negligence void as against public policy.

II. SEAMAN STATUS.

Theriot argues that the district court erred in denying his motion for a directed verdict on seaman status. "While it is firmly established that the question of [seaman status] is ordinarily resolved by the trier of fact, the trial court may, nonetheless, enter a directed verdict where the record demonstrates that reasonable persons could not draw conflicting inferences which might lead to another conclusion." Landry v. Amoco Production Co., 595 F.2d 1070, 1072 (5th Cir.1979). Theriot asserts that the record reveals uncontradicted evidence that he was indefinitely assigned to the drilling barge ROME for the last one-third of the vessel's mission; the only possible finding was thus that Theriot was "permanently assigned" to the barge and a seaman.

We do not agree that the record evidence was either uncontradicted or conclusive. Theriot presented evidence that he logged 600 hours of "work" on the ROME over a twenty-five day period in January 1980. He testified that his assignment to the ROME was supposed to continue "until it was completed." Bay Drilling, however, offered evidence that Theriot's initial assignment was for a period of six days after which Theriot had the option to take off for three days and receive an assignment to a new location. According to Bay Drilling, Theriot's assignment was not co-extensive with the...