Tullos v. Resource Drilling, Inc.

• Decision Date: 11 January 1985
• Docket Number: No. 84-3099,84-3099
• Citation: 750 F.2d 380
• Parties: Pamela TULLOS, Wife of/and Ronald David Tullos, Plaintiffs-Appellees Cross-Appellants, v. RESOURCE DRILLING, INC., and Superior Oil Company, Defendants-Appellants Cross-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 380

750 F.2d 380

Pamela TULLOS, Wife of/and Ronald David Tullos Plaintiffs-Appellees Cross-Appellants, v. RESOURCE DRILLING, INC., and Superior Oil Company Defendants-Appellants Cross-Appellees.

No. 84-3099

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Jan. 11, 1985.

Weigand, Weigand & Meyer, Joseph J. Weigand, Jr., Houma, La., for defendants-appellants cross-appellees.

Wiedemann & Fransen, Michael A. Fenasci, A. Remy Fransen, Jr., New Orleans, La., for plaintiffs-appellees cross-appellants.

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

Before WILLIAMS, JOLLY, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

In this maritime action, the employer, Superior Oil Company (Superior), and the vessel owner, Resource Drilling, Inc. (Resource), are appealing the judgment of the district court as to the seaman status of the injured worker, Donald Tullos, the jury's finding of negligence under general maritime law, the jury's finding of only ten percent contributory negligence by the seaman and the seaman's wife's right to a claim for loss of consortium under general maritime law. The seaman on cross-appeal is challenging the remittitur allegedly forced on him concerning the award received by his wife for loss of consortium and the court's failure to submit to the jury the issue of arbitrary and capricious denial of maintenance and cure benefits by his employer. Because the remittitur may not be challenged on appeal if agreed to as it was here, we do not reach that issue. We affirm the judgment of the district court except as follows: the case is reversed and remanded for submission to the jury of the issue of arbitrary and capricious denial of maintenance and cure.

I. Background

Donald Tullos was an oil well inspector for Superior at the time of the injury which is the subject matter of this lawsuit. Superior hired Resource to drill an offshore oil well. Resource was the owner and operator of the drilling vessel upon which Tullos was injured on February 10, 1982. Tullos testified that he discovered mud in the pump room of the vessel, walked through it and some oil, scraped his shoes, and then ascended the stairs to the captain's office. After encountering additional mud and oil on the stairs, he slipped and fell on the second flight of stairs, injuring his back. An employee of Resource who worked as a "mud man" testified that during February, the month in which the accident occurred, the mud pumps were leaking because of the use of improper packing material and that the overflowing mud which was mixed with diesel fuel was not being properly cleaned up. Resource introduced printouts from a pitograph which measures mud loss to show that there was no mud loss on the 9th and 10th of February. A motor man testified that the stairs were cleaned by himself, other motor men, a toolpusher, and roustabouts.

The district court found, as a matter of law, Tullos to be a Jones Act seaman. Other issues were presented to a jury in special interrogatories. The jury found Resource negligent under general maritime law and awarded $325,000 in damages to Tullos and $100,000 in damages to his wife for loss of consortium. The jury also found Tullos to have been ten percent contributorily negligent. As to Tullos' employer, Superior, the jury found the company liable for maintenance and cure, specifically finding that Tullos had not yet reached maximum medical cure.

The district court reduced the jury awards against Resource and in favor of Tullos and his wife by ten percent in view of the finding of contributory negligence. The court also awarded maintenance and cure of $15 per day against Superior, to be paid until Tullos reaches maximum cure. The court later granted a remittitur of $60,000 for loss of consortium.

On appeal, Superior and Resource have jointly raised the following issues: whether Tullos was a Jones Act seaman; whether a Jones Act seaman may raise a negligence claim under general maritime law against a vessel owner; whether the evidence supported the finding of negligence; whether Tullos' fault should have been found to have been 100% or at least 50% because he admitted walking in oil and mud prior to climbing the stairs; whether the wife of a Jones Act seaman is entitled to loss of consortium under general maritime law against a vessel owner. On cross-appeal Tullos and his wife have raised the following additional issues: whether the district court violated Tullos' due process and equal protection rights by ordering him to accept the remittitur in his wife's separate claim for loss of consortium and whether the district court erred in ruling that as a matter of law Superior was not arbitrary and capricious in refusing maintenance and cure payments rather than submitting the question to the jury for a possible punitive damage award.

II. Discussion

1. Seaman Status

Appellants Superior and Resource first assert that the district court erred in finding Tullos to be a seaman within the meaning of the Jones Act, 46 U.S.C. Sec. 688. Tullos alleges only that he is a seaman with respect to his employer, Superior. ¹

Seaman status is ordinarily a question of fact for the jury. In this case, the district judge ruled that as a matter of law, Tullos was a seaman. The judge is permitted to do this as explained in Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir.1982):

The Supreme Court ha[s] ... established the principle that seaman status is basically a question of fact .... This court has held, however, that the Supreme Court ... did not intend to strip the judge of his authority to direct a verdict or grant summary judgment, if there is no genuine issue of material fact to be submitted to the jury .... Thus, although seaman status is an issue of fact, when there are no facts in dispute, a court may rule on the issue as a matter of law .... [I]f the Robison requisites are met and there is no dispute over these factors, the court may grant a summary judgment or directed verdict declaring as a matter of law that the plaintiff is a seaman.

Id. at 835 (citations omitted). This Court has even found a district court to have erred in not deciding seaman status as a matter of law when "the facts governing plaintiff's status as a seaman were established beyond cavil." Landry v. Amoco Production Co., 595 F.2d 1070, 1071 (5th Cir.1979). For the district court to properly have determined that Tullos was a seaman as a matter of law, there must be no basis for reasonable persons to draw conflicting inferences from the evidence. Evidence is required under the Robison test for seaman status that (1) the worker was permanently assigned to or did a substantial portion of his work on a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water), and (2) the work he performed contributed to the function of the vessel or to the accomplishment of its mission or to the operation or welfare of the vessel in terms of its maintenance. Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959), as interpreted in Bouvier v. Krenz, 702 F.2d 89, 90 (5th Cir.1983), and Landry, 595 F.2d at 1073.

Tullos was an oil well inspector for Superior which hired Resource to drill an offshore oil well and furnish the drilling vessel on which Tullos was subsequently injured. There is no real dispute as to Tullos' permanent assignment to the vessel. There is also no real dispute that his work contributed to the mission of the vessel--drilling an oil well.

The district court expressed concern as to whether an employee can be a seaman when his employer is not the operator of the vessel, but correctly determined that the case of Parks v. Dowell, 712 F.2d 154 (5th Cir.1983), was controlling on this issue. In Parks, the plaintiff worked on a drilling tender assisting in the drilling of a well owned by CNG. He was described as being CNG's "company man" on the job: "He was paid by CNG to supervise the drilling operation. He was permanently assigned to the tender where he had his office and performed most of his duties." Id. at 156. The plaintiff was found to be a seaman given that the tender was a vessel.

In reaching its conclusion that Tullos was a seaman, the district court did not consider the additional cases presented to this Court on appeal by Tullos: Reed v. Pool Offshore Co., 521 F.Supp. 324 (W.D.La.1981), and Welch v. J. Ray McDermott & Co., 336 F.Supp. 383 (W.D.La.1972). ² Although in Reed the plaintiff was an employee of Crown Oilfield Services, Inc. performing duties for Crown aboard Mobil's barge when he was injured, the district court found him to be a seaman under the Robison standard of permanent assignment to a vessel upon which duties are performed in furtherance of the mission of the vessel. 521 F.Supp. at 326-27. Similarly, in Welch the plaintiff was a welding inspector employed by FB & D which contracted to perform engineering work on a pipeline. He slipped in a bathroom on a barge not owned or operated by his employer. He was also found to be a seaman under the Robison requirements. 336 F.Supp. at 384.

The undisputed facts pertaining to Tullos' employment on the vessel owned by Resource are sufficient to satisfy the Robison requirements and permit a ruling as a matter of law that Tullos was a seaman. It should be noted, however, that meeting the Robison requirements usually merely provides sufficient evidence for seaman status to reach the jury. The district judge, in this case, however, felt bound by the very similar factual situation in Parks to make the ruling as a matter of law. He did not err in doing so.

2. Negligence under General Maritime Law

Appellants make two preliminary arguments that Tullos, acknowledged for the purposes of this issue to be a seaman, was not entitled to a negligence claim under general maritime law against the vessel owner, Resource. First, they argue that a...