Waguespack v. Aetna Life & Cas. Co.

• Decision Date: 01 August 1986
• Docket Number: 85-3472,Nos. 84-3751,s. 84-3751
• Citation: 795 F.2d 523
• Parties: Claude Joseph WAGUESPACK, Plaintiff-Appellant, v. AETNA LIFE & CASUALTY COMPANY, et al., Defendants, Peavey Company and Peavey International, Inc., Defendants-Appellees. Claude J. WAGUESPACK, Plaintiff-Appellant, v. AETNA LIFE & CASUALTY COMPANY, et al., Defendants, American Commercial Barge Line Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 523

795 F.2d 523

5 Fed.R.Serv.3d 849

Claude Joseph WAGUESPACK, Plaintiff-Appellant, v. AETNA LIFE & CASUALTY COMPANY, et al., Defendants, Peavey Company and Peavey International, Inc., Defendants-Appellees.

Claude J. WAGUESPACK, Plaintiff-Appellant, v. AETNA LIFE & CASUALTY COMPANY, et al., Defendants, American Commercial Barge Line Company, Defendant-Appellee.

Nos. 84-3751, 85-3472.

United States Court of Appeals, Fifth Circuit.

Aug. 1, 1986.

Glenn G. Goodier, Jeanmarie LoCoco, New Orleans, La., for defendant-appellee in No. 85-3472.

Rudolph R. Schoemann, Matt Greenbaum, New Orleans, La., for plaintiff-appellant.

Russell D. Pulver, Charles Lugenbuhl, Jon W. Wise, New Orleans, La., for defendants-appellees in No. 84-3751.

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

Before RUBIN, JOHNSON and JONES, Circuit Judges.

EDITH HOLLAN JONES, Circuit Judge:

These consolidated cases involve the questions whether plaintiff Waguespack was a Jones Act seaman at the time of his accident and whether, in amending his complaint to add American Commercial Barge Line (ACBL) as a new defendant nearly four years after the accident, his attempt was time-barred because the amended complaint did not "relate back" to the original complaint under Fed.R.Civ.P. 15(c). We AFFIRM.

The district court granted summary judgment in favor of defendants Peavey Company and Peavey International, Inc., Waguespack's employer and parent company of the employer, respectively. ¹ Waguespack was employed by Peavey in 1979 as a laborer, but shortly afterward began work as a "bargeman." His work consisted of removing the covers of grain barges after they entered the unloading slip, and replacing those covers once the grain had been removed by a mechanical arm. To facilitate the unloading process, floating work platforms were placed in the slip just ahead of and just behind each grain barge. The grain barge covers were stored on the work platforms during the unloading process. They were lifted and moved from the barges to the work platform by an overhead gantry system. It was Waguespack's responsibility to secure hooks at the end of lines connected to the gantry by placing hooks into the eyeholes on the grain covers. The bargemen at Peavey worked eight- or twelve-hour shifts and did not sleep or eat aboard the barges or work platforms. At no time did Waguespack ever work as a deckhand or tug pilot for Peavey, nor did he ever participate in the navigation of barges on the Mississippi River. With the exception of the five times in four years when he rode aboard a tug to go inspect the cargo of a barge awaiting clearance to dock, his sole contact with barges came in the course of his above-described duties as a bargeman. The grain barges unloaded at the Peavey facility are owned by various barge lines, including a subsidiary of Peavey.

On January 5, 1981, Waguespack was attempting to secure the gantry hook to a barge cover on a barge owned by ACBL, when the cover shifted and fell into the hold of the barge. He was thrown on his side and rolled down the cover, landing against the side of the barge at its bottom. He complained of pain in his left side and was taken to the hospital, where x-rays were taken. After ten days' absence, he returned to work and worked for Peavey until April 1983. In December 1982, he was further injured in an automobile accident. Since leaving employment with Peavey, Waguespack has received long-term disability insurance payments from this defendant.

As an initial matter, we note that the evidence relied on by both parties to the summary judgment motion was the deposition by Waguespack transcribed for this case in May 1984. A copy of the deposition accompanies his record excerpts before this court. The trial court record, however, does not reflect that the deposition was filed, as required by Fed.R.Civ.P. 30(f), "unless otherwise ordered by the court." Although Waguespack's counsel quoted excerpts from the deposition testimony in his motion opposing summary judgment and also relied on it in the hearing relating to summary judgment, it is not clear whether the court had access to or had read the deposition itself. Irrespective of the uncertainty in the record, the deposition may properly be considered on appeal because of Waguespack's consistent reliance on his deposition testimony in the district court and this court. See McDaniel v. Travelers Ins. Co., 494 F.2d 1189 (5th Cir.1974) (per curiam ); see also Fed.R.Civ.P. 32(d)(4) (errors or irregularities in the manner in which the deposition is filed are waived unless a reasonably prompt motion to suppress has been filed); Kawietzke v. Rarich, 198 F.Supp. 841 (E.D.Pa.1961). Accordingly we exercise our discretionary power to include the deposition in the record of this case and consider that testimony as evidence from which the foregoing summary of facts has been obtained. See In re GHR Energy Corp., 791 F.2d 1200, 1202 (5th Cir.1986); Dickerson v. Alabama, 667 F.2d 1364, 1367 (11th Cir.), cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982).

Whether Waguespack can claim the benefit of Jones Act seaman status is a question whose answer first depends upon Judge Wisdom's now-famous formulation of the test in Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959):

[T]here is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel....

To be a seaman, Waguespack must have worked on a "vessel," and therein lies the issue at the heart of the case. Waguespack contends that his duties were performed on board the numerous grain barges that docked at the Peavey facility whether owned or not by Peavey's related companies. Alternatively, he asserts that the work platforms that were attached to the front and rear of each grain barge as it moved through the Peavey docks, and on which Waguespack stored the grain barge covers, constitute "vessels."

This court's recent en banc decision in Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986) disposes of two of Waguespack's contentions. First, Barrett states that although the seaman status determination is an inherently factual question, it may be determined by summary judgment in the appropriate situation. "[W]here the facts establish beyond question as a matter of law [the lack of seaman status], ... a court ... may, in the proper case, hold that there is no reasonable evidentiary basis to support a jury finding that the injured person is a seaman...." Guidry v. Continental Oil Co., 640 F.2d 523, 529 (5th Cir.) cert. denied, 454 U.S. 818, 102 S.Ct. 96, 70 L.Ed.2d 87 (1981), quoted in Barrett, 781 F.2d at 1074. Contrary to assertions by Waguespack in his appellate briefs, his deposition testimony and admissions reveal that the pivotal facts concerning his employment duties and the physical layout and characteristics of his work...