The opinion
LUIGI MALTA, * NO. 2020-CA-0250
INDIVIDUALLY AND ON
BEHALF OF HIS MINOR *
CHILD, GIOVANNI MALTA COURT OF APPEAL
*
VERSUS FOURTH CIRCUIT
*
HERBERT S. HILLER STATE OF LOUISIANA
CORPORATION, HILLER *******
OFFSHORE SERVICES, INC.,
THE HILLER COMPANIES,
INC., HELIS ENERGY, L.L.C.
AND HELIS ENTERPRISES,
INC.
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2013-01264, DIVISION “C”
Honorable Sidney H. Cates, Judge
******
Judge Terri F. Love
******
(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary
Ledet)
DYSART, J., CONCURS IN PART AND DISSENTS IN PART
Al J. Robert, Jr.
LAW OFFICE OF AL J. ROBERT, JR., LLC
757 Saint Charles Ave., Suite 301
New Orleans, LA 70130
and
Timothy John Falcon
Jeremiah A. Sprague
Jarrett S. Falcon
FALCON LAW FIRM
5044 Lapalco Boulevard
Marrero, LA 70072
COUNSEL FOR PLAINTIFFS/APPELLEES
Andrew Charles Wilson
Cody J. Acosta
Maura E. Bowlin
MILLING BENSON WOODWARD, LLP
68031 Capital Trace Road
Mandeville, LA 70471
COUNSEL FOR DEFENDANTS/APPELLANTS
AFFIRMED AS AMENDED
November 25, 2020
TFL
RML Defendants Hebert S. Hiller Corporation, Hiller Offshore Services, Inc., and
The Hiller Companies, Inc., (collectively “Hiller”) appeal the trial court’s
judgment in favor of Plaintiff Luigi Malta, individually, and on behalf of his minor
son, Giovanni Malta for injuries Mr. Malta sustained after a fire suppressant
cylinder discharged. In addition, Mr. Malta answers the appeal, seeking a
modification of the trial court’s final judgment awarding damages. On appellate
review, we find no manifest error that requires reversal of the trial court’s
judgment assessing 100% of the fault to Hiller. Likewise, we find no abuse of the
trial court’s discretion in its award of damages. However, we amend the trial
court’s judgment to clarify the manner by which credits are to be assessed for lost
wages and medical expenses. Accordingly, we affirm the trial court’s judgment as
amended.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
The instant case arises from injuries Mr. Malta sustained in April 2012,
when a high-pressure fire suppressant cylinder discharged as Mr. Malta was
picking the cylinder up while he was working on a fixed oil production platform in
1
the Gulf of Mexico.
Wood Group Production Services (“Wood Group”) was contractor for Helis
Oil & Gas Company, L.L.C. (“Helis”), which owns and operates oil and gas
facilities across the United States. Wood Group operates many of Helis’ facilities,
including Helis’ Black Bay Central Facility1, the offshore platform where Mr.
Malta was injured. Wood Group employed Mr. Malta as a warehousemen at the
Central Facility. His responsibilities on the platform included shipping, receiving,
warehousing, and dispatching tools and supplies to the workers on the surrounding
platforms.
Helis also contracted with Hiller, a fire protection company, to ensure the
fire suppression systems that protect its oil rigs were properly inspected, serviced
and maintained. Helis entered into a Master Service Agreement with Hiller, in
1998, wherein Hiller would perform annual inspections of Helis’ facilities,
including the Black Bay Facility. As part of the annual inspections, a Hiller
technician would conduct the inspection, provide a report of the technician’s
findings and deficiencies, and meet with Wood Group to review the findings.
In April 2012, Hiller sent safety inspector Drey Hebert (“Mr. Hebert”) to
conduct a series of scheduled fire safety and equipment inspections at Helis’ Black
Bay Facility. Mr. Hebert testified that he had worked for Hiller for about a year
when Hiller arranged for him to conduct the annual inspection at the Black Bay
1
The Black Bay Central Facility is surrounded by 16 satellite platforms that together provide
support services for Helis’ Black Bay oil and gas production. See Wood Group Production
Servs.v. Director, Office of Worker’s Compensation Programs, et al., 920 F.3d 733, 735 (5th Cir.
2019).
2
Facility. He further noted that it was his first inspection at the facility, but that he
was familiar with the type of system used at the Black Bay Facility and “knew
what needed to be done.” Mr. Hebert spent three days inspecting Helis’ fire
suppression systems, including a clean agent system in a generator building on
Helis’ West Central Battery. This system holds two clean agent cylinders. Each
cylinder contained a highly pressurized liquefied chemical fire retardant referred to
as “Clean Agent.” The fire suppression system is designed so that when a fire is
detected, the cylinders release the Clean Agent into the system at high pressure,
which is then sprayed onto the platform extinguishing the fire.
Mr. Hebert inspected and certified one of those cylinders as having “0 PSI”
(pounds per square inch) based on his observation of the cylinder’s pressure gauge.
In light of his finding that the cylinder was no longer pressurized, having a 0 PSI,
Mr. Hebert red tagged the cylinder as such in order for it to be “sent in for
recharging.” Mr. Hebert prepared the Clean Agent Cylinder Report and the
Deficiencies report in connection with his inspection. Mr. Hebert noted in his
report that a cylinder is “Stamped Full,” when the cylinder and its contents weigh
244 pounds. The report further indicated that an empty cylinder weighs 110
pounds, and 134 pounds of agent is required for the cylinder to be full. According
to the report, however, the cylinder in this case was over-filled. The Clean Agent
Report shows that the “Actual Full” of the cylinder weighed 245 pounds and the
“Actual Agent” weighed 135 pounds. The Clean Agent Report also notes in the
comments section, “Cylinder has 0 PSI.” Additionally, in his deficiencies report,
3
Mr. Hebert indicated that the subject cylinder had 0 PSI and “need[ed] to be sent in
for recharge.” Mr. Hebert provided Wood Group, the operator of the platform,
with the documentation certifying that the cylinder had 0 PSI. Moreover,
according to witness testimony presented at trial, Mr. Hebert advised Wood Group
employees, including Mr. Malta and Wood Group’s foreman Lilton Harvey (“Mr.
Harvey”), that the cylinder was empty.
According to Mr. Harvey, on April 14, 2012, following a safety meeting in
which Mr. Hebert’s reports were discussed, Mr. Harvey instructed John Lowery
(“Mr. Lowery”), an offshore electrician for Wood Group, to remove the cylinder so
that it could be sent in for recharging. The cylinder was removed from the system,
taken out of the generator building, lowered into a lift boat by crane, brought to the
Black Bay Central Facility, and unloaded by another crane at that location onto the
warehouse platform. Mr. Malta received radio instructions that a cylinder was
coming that needed unloading from the crane’s cargo basket. Once the cargo
basket reached the warehouse platform, Mr. Malta guided the basket to the deck.
Mr. Malta then “bear-hugged the cylinder” to remove it from the cargo basket. At
trial, Mr. Malta testified that he put the cylinder down on the grating, he
“attempted to pull it back and draw it on its access [sic] so [he could] roll the bottle
to a staging area,” at which point the cylinder began to hiss. He tried to push it out
of the way, but it “went ballistic” and started spinning. The cylinder struck Mr.
Malta, who sustained numerous injuries, some of which required surgery.
In February 2013, Mr. Malta filed a petition for damages against Hiller and
4
Helis, Helis Energy, L.L.C., and Helis Enterprises, Inc., for the personal injuries he
sustained after the cylinder unexpectedly discharged.2 Mr. Malta also filed suit on
behalf of his minor son, Giovanni Malta, based on a loss of consortium claim.
Mr. Malta’s original petition alleged that Helis had custody and control of
the defective cylinder and that employees of Helis and Hiller breached duties owed
to Mr. Malta.3 The petition further alleged that Hiller: (1) failed to “properly
determine that the cylinder was empty;” (2) “improperly mark[ed] the cylinder as
empty;” (3) failed “to ensure that [the] cylinder was in proper working order;” and
(4) failed “to warn [Mr. Malta] of any danger posed by the cylinder.”
In November 2017, Ace American Insurance Company (“Ace”), the
worker’s compensation insurer for Wood Group, intervened in the action. Ace
sought to recover worker’s compensation and/or longshore benefits, medical
benefits, and indemnity payments it made to or on Mr. Malta’s behalf, totaling
$241,071.92.
In March 2019, this matter proceeded to bench trial. The trial court rendered
judgment in favor of Mr. Malta and against Hiller. The trial court assessed all fault
for the incident against Hiller and awarded Mr. Malta the following damages:
$1,000,000 in general damages for physical injury; $350,000 in general damages
for psychological injury; $154,903.43 in past medical expenses; $300,000 in
2
Helis Energy, L.L.C. and Helis Enterprises, Inc. were dismissed by joint motion in June 2013.
3
Mr. Malta amended his petition in February 2015 to add his employer Wood Group as a
defendant seeking damages for Wood Group’s retaliation in refusing to rehire him. Wood Group
filed a declinatory exception of improper venue that the trial court denied. Following review by
this Court, the Louisiana Supreme Court considered the issue, finding the venue was improper in
Orleans Parish and ordered the matter transferred to a court of proper venue. See Malta v.
Herbert S. Hiller, et al., unpub., 15-CC-1444 (La. 10/30/15).
5
damages for lost wages and future earning capacity; and $27,053.58 in damages
for future medical expenses. Additionally, the judgment awarded Ace
$241,071.924 and awarded Giovanni Malta $50,000.
Hiller subsequently filed a motion to alter or to amend the judgment, or in
the alternative a motion for new trial on grounds that under Louisiana law, a
worker’s compensation carrier’s recovery is from an injured employee and not a
third party tortfeasor, so as to avoid a double recovery. Therefore, Hiller averred
that the judgment improperly awarded Ace damages against it, rather than Mr.
Malta. A hearing on Hiller’s motion was held, and the trial court issued an
amended judgment on January 10, 2020, by adding language that the damages
awarded to Mr. Malta are “subject to a credit of amounts previously paid to and
received by [Mr. Malta].” The trial court also amended the award as it relates to
Ace as follows:
IT IS FURTHERED ORDERED, ADJUDGED AND DECREED that
there be judgment in favor of ACE. . . as the worker’s compensation
intervenor in this case for amounts previously paid to [Mr. Malta],
against defendant Hiller in the amount of . . . $241, 071.92, together
with judicial interest from date of demand until paid and all costs of
these proceedings.
Hiller files the instant appeal seeking this Court’s review of the trial court’s
amended judgment. Mr. Malta also files an answer to the appeal, seeking
modification of the trial court’s amended judgment, to which Hiller has filed a
motion to dismiss.
STANDARD OF REVIEW
4
The parties stipulated, prior to trial, that Ace paid workers compensation benefits to or on
behalf of Mr. Malta, totaling $241,071.92, as a result of the incident and resulting injuries
alleged in the main demand.
6
The appellate court reviews a trial court’s findings of fact using the
manifestly erroneous or clearly wrong standard of review. Ridgel v. Chevalier, 19-
0250, p. 9 (La App. 4 Cir. 1/8/19), 288 So.3d 192, 199 (quoting Keller v.
Monteleon Hotel, 09-1327, p. 2 (La. App. 4 Cir. 6/23/10), 43 So.3d 1041, 1043).
“[A] factual finding cannot be set aside unless the appellate court finds the trier of
fact’s determination is manifestly erroneous or clearly wrong.” John Begnaud
Elec. Motors, Inc. v. Alternative Well Intervention, LLC, 17-0548, p. 3 (La. App. 4
Cir. 12/20/17), 234 So.3d 269, 272 (quoting Detraz v. Lee, 05-1263, p. 7 (La.
1/17/07), 950 So.2d 557, 561).
This Court further explained, “the issue before the court of appeal is not
whether the trier of fact was right or wrong, but whether the factfinder's conclusion
was a reasonable one.” Begnaud, 17-0548, p. 3, 234 So.3d at 272 (quoting Snider
v. Louisiana Med. Mut. Ins. Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323).
“The appellate court must not reweigh the evidence or substitute its own factual
findings because it would have decided the case differently.” Id. Moreover,
“[w]here the factfinder's determination is based on its decision to credit the
testimony of one of two or more witnesses, that finding can virtually never be
manifestly erroneous.” Id.
Hiller raises several assignments of error as it relates to the trial court’s
determination of fault. Hiller avers the trial court erred in allocating all fault for
Mr. Malta’s injuries against it. Specifically, Hiller contends the trial court erred
when it: (1) found Hiller owed a duty to Mr. Malta to prevent the accident; (2)
found Hiller was negligent; (3) found “Hiller’s actions were the sole cause-in-fact
. . . [and] erred as matter of law [found] that Hiller’s actions were the sole
proximate cause of [Mr. Malta’s] accident;” and (4) failed to apply Louisiana’s
7
comparative fault scheme pursuant to La. C.C. art. 2323 and assess fault to Wood
Group, Mr. Malta, and Helis. In addition to Hiller’s assigned errors on the issue of
liability, Hiller assigns as error that the trial court’s general damages award is
excessive.
DISCUSSION
The central issue on review is whether Hiller is liable for the physical and
psychological injuries Mr. Malta sustained after a fire suppressant cylinder
discharged. Pursuant to La. C.C. art. 2315, “[e]very act whatever of man that
causes damage to another obliges him by whose fault it happened to repair it.”
Louisiana has adopted a duty/risk analysis in determining whether liability exists
under a particular set of facts. Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 4 (La.
11/30/99), 752 So. 2d 762, 765. Under the duty/risk analysis, the plaintiff must
prove: (1) “the conduct in question was the cause-in-fact of the resulting harm;” (2)
“the defendant owed a duty of care to the plaintiff;” (3) “the requisite duty was
breached by the defendant;” and (4) the risk of harm was within the scope of
protection afforded by the duty breached.” Id. (citing Syrie v. Schilhab, 96-1027, p.
4-5 (La. 5/20/97), 693 So.2d 1173, 1176-77).
Duty of Care
The “threshold issue in any negligence action is whether the defendant owed
the plaintiff a duty.” Id., 99-1222, p. 4, 752 So. 2d at 766 (citing Meany v. Meany,
94-0251, p. 6 (La. 7/5/94), 639 So.2d 229, 233). “Whether a duty is owed is a
question of law.” Id. (citing Peterson v. Gibraltar Sav. & Loan, 98-1601, 98-1609,
p. 7 (La. 5/18/99), 733 So.2d 1198, 1204). Hiller avers that it owed no duty to Mr.
Malta. Specifically, Hiller claims “as an inspection company no duty is owed to
after an inspection to subsequently injured parties.” Hiller cites Morcos v. EMS,
8
Inc., 570 So.2d 69 (La. App. 4th Cir. 1990) in support for its contention. In
Morcos, an employee was injured while using a crane to complete painting work of
six 20,000-gallon tanks located in his employer’s boat harbor. Id. at 70. Among
the defendants the plaintiff employee sued was the company responsible for testing
the crane and certifying compliance with USDL/OSHA regulations. Id. The
plaintiff employee claimed that the company had breached implied and expressed
warranties of merchantability and fitness. Id. This Court found “[t]he company
which inspects a piece of equipment for a hospital or employer pursuant to a
contract generally owes no duty to a subsequently injured third party (patient or
employee).” Id. at 76. This Court concluded that the “contract was to certify that
the crane met OSHA regulations. It was not to make a safety inspection for the
benefit of [plaintiff], an employee.” Id. Moreover, in affirming summary
judgment this Court noted that there was no evidence that the crane was defective
or failed to comply with federal safety standards.
We find Morcos distinguishable. Helis hired Hiller to conduct inspections
specifically designed to identify deficiencies in its safety equipment, including the
fire suppressant equipment. Additionally, Hiller’s employees and experts testified
that Mr. Hebert had a duty to conduct a competent inspection and accurately report
the results from the inspection. In that the equipment at issue was specifically used
for safety purposes, we find Hiller had a duty to competently perform a safety
inspection.
Breach of Duty
As explained, Hiller had a duty to conduct a proper safety inspection.
Hiller’s duty also included the requirement to report its findings from the
inspection accurately. Thus, the next inquiry in the duty/risk analysis is
9
determining whether Hiller’s conduct conformed to the appropriate standard. Mr.
Malta notes in brief to this Court that Mr. Hebert’s own Clean Agent Cylinder
Report establishes his failure to “properly diagnose and report the status of the
Generator #1 cylinder.” The report indicates that the cylinder is “Stamped Full”
when the weight of the cylinder is 244 pounds. Based on Mr. Hebert’s liquid level
measurements and calculations, Mr. Hebert noted the cylinder weighed 245
pounds. Yet, Mr. Hebert noted in his Clean Agent Cylinder report that the cylinder
“ha[d] 0 PSI” and similarly, noted in his Deficiencies Report that the “cylinder has
0 PSI and needs to be sent in for recharge.”
David Stahl, Mr. Malta’s expert in fire protection maintenance practices,
testified regarding the significance of this discrepancy. According to Mr. Stahl, the
cylinder in question contained four to four and one half pounds of nitrogen based
on Mr. Hebert’s calculations. Mr. Stahl explained that when Mr. Hebert
determined that the cylinder contained 135 pounds of agent, he should have
recognized that the cylinder was “fully charged.” Thus, a fully charged cylinder,
containing 135 pounds of agent, cannot have 0 PSI. Mr. Stahl testified that based
on these measurements Mr. Hebert should have recognized that the cylinder had a
faulty gauge. Mr. Stahl testified, and Hiller’s operations manager James Guidry
(“Mr. Guidry”) agreed, that the error was in stating that the cylinder had 0 PSI, as
opposed to the gauge reflecting 0 PSI.
Hiller’s own expert James Brast (“Mr. Brast”) also testified that Mr. Hebert
should have recognized that the situation involved a faulty gauge. Mr. Brast
further stated that Mr. Hebert should have advised Wood Group that the gauge
could be faulty and the cylinder was still pressurized. Nevertheless, Mr. Hebert
reported his findings to Wood Group but failed to warn of the possibility of a
10
defective gauge and that the cylinder was still fully pressurized. Mr. Hebert’s
report made erroneous conclusions, which Mr. Hebert further communicated to
Wood Group employees. In his failure to conduct a proper inspection and
accurately report his findings, Mr. Hebert gave Wood Group an incorrect
impression that the cylinder at issue was empty and no longer pressurized.
Therefore, we find no error in the trial court’s determination that Hiller breached
its duty to provide complete and accurate information in this case.
Cause in Fact
We next turn to whether Hiller’s breach was the cause in fact of Mr. Malta’s
injuries. This Court has previously explained, “‘the cause need not be the sole
cause, but it must be a cause in fact, and to be a cause in fact it must have a
proximate relation to the harm which occurs and it must be substantial in nature.’”
Chanthasalo v. Deshotel, 17-0521, p. 9 (La. App. 4 Cir. 12/27/17), 234 So.3d
1103, 1109.
As noted above, Mr. Hebert documented and certified in his Clean Agent
Cylinder Report that the cylinder had 0 PSI. In the trial court’s written reasons for
judgment, the trial court noted “Lilton Harvey testified that Mr. Hebert specifically
told him that the cylinder was empty.” A review of the trial transcript does not
indicate Mr. Harvey offered the testimony the trial court attributes to him.
However, Mr. Harvey did testify that he relied on Mr. Hebert’s report indicating
that the cylinder had 0 PSI and needed to be sent in for recharging. He explained
that in the past Wood Group experienced problems with cylinders mistakenly
discharging without a fire being present. In those instances, the cylinders would be
empty and Wood Group would remove them. Therefore, when Mr. Harvey
reviewed Mr. Hebert’s report indicating that the cylinder in this case had 0 PSI, he
11
believed that the cylinder had erroneously discharged, like others had in the past,
and was empty. While Mr. Harvey signed off on the Clean Agent Cylinder Report
containing the aforementioned error, Mr. Harvey testified that no one with Hiller
suggested that the cylinder was still under pressure. In fact, he stated that if Hiller
had represented to him that the cylinder might still be under pressure, he would not
have instructed Wood Group employees to remove it. Mr. Harvey testified that he
would have had Hiller handle the removal of the cylinder. Based on Mr. Hebert’s
representation that the cylinder had 0 PSI, and thus, needed to be sent in for
recharging, Mr. Harvey determined that Wood Group could remove and transport
the cylinder.
Testimony was presented at trial that Mr. Hebert communicated directly
with several other Wood Group employees that the cylinder was empty. Mr.
Lowery, an offshore electrician for Wood Group, accompanied Mr. Hebert during
his inspection of the facility. Mr. Lowery testified that Mr. Hebert told him that
the cylinder was empty. Mr. Lowery later represented to Donald Crain, another
Wood Group employee, that the cylinder was empty. Mr. Malta also testified that
he spoke with Mr. Hebert and that Mr. Hebert informed Mr. Malta that the cylinder
was “certified and deemed empty with zero pressure.”
The evidenced adduced at trial established that had Wood Group employees
believed the cylinder was still pressurized, it would have had Hiller remove and
transport the cylinder. However, Wood Group relied Mr. Hebert’s representations
that the cylinder had 0 PSI and/or that the cylinder was empty when it decided to
remove and transport the cylinder itself. The trial court therefore could have
reasonably concluded that Mr. Hebert’s failure to report his findings accurately
was the cause in fact of Mr. Malta’s injuries.
12
Proximate Cause
We address next the fourth element of the duty/risk analysis—scope of
protection or legal cause. Louisiana courts have explained:
The essence of the ... inquiry is whether the risk and harm
encountered by the plaintiff fall within the scope of protection of the
[duty]. It is a hazard problem. Specifically, it involves a determination
of whether the ... duty ... [was] designed, at least in part, to afford
protection to the class of claimants of which the plaintiff is a member
from the hazard [encountered].
Chanthasalo, 17-0521, p. 7, 234 So. 3d at 1108 (quoting Peterson v. Doe, 94-1013,
p. 8 (La. App. 4 Cir. 12/15/94), 647 So.2d 1288, 1293). To determine whether a
duty/risk relationship exists between Hiller’s substandard conduct and Mr. Malta’s
injuries, our “jurisprudence employs an ease of association analysis to assess
liability.” Id., 17-0521, p. 8, 234 So.3d at 1108. “The ease of association inquiry
asks: How easily does one associate the plaintiff's complained-of harm with the
defendant's conduct? ... Although ease of association encompasses the idea of
foreseeability, it is not based on foreseeability alone.” Id., 17-0521, p. 8, 234 So.
3d at 1109 (internal citations omitted).
Hiller claims “simply identifying a cylinder as being in need of service” is
too remote from Mr. Malta’s accident for the trial court to consider it the proximate
cause of Mr. Malta’s injuries. Instead, Hiller contends that Wood Group’s
improper handling of the cylinder caused Mr. Malta’s injuries. In support of its
argument at trial, Hiller pointed to the general industry practice that when
removing and transporting a cylinder, workers should always treat it as if it was
pressurized.
Mr. Malta, however, avers that there is an ease of association between the
negligence of Mr. Herbert and Mr. Malta’s injuries because it is “readily
13
foreseeable that someone might get hurt due to Mr. Hebert’s negligence if it results
in a high-pressure cylinder unexpectedly discharging.” In other words, Mr.
Hebert’s expertise and training “is squarely within the scope of protection provided
by [Hiller]’s services—providing competent inspections and accurately reporting
the associated results.”
Mr. Stahl testified that if individuals lack training in the proper usage of
high-pressure cylinders there are risks that they are unaware of and that those risks
are foreseeable. When questioned further, Mr. Stahl confirmed that because of the
associated risks companies, like Helis, hire licensed experts to inspect these
systems, providing advice and reports on their findings.
Moreover, Hiller’s operation manager James Guidry (“Mr. Guidry”) testified
that it is Hiller’s responsibility to provide accurate information to its customers.
He also confirmed that Hiller was in the “best position to remove and transport”
the type of cylinder at issue in this case. If the customer elects to remove and
transport the cylinder, he stated that Hiller should warn of the associated hazards
and risks and ensure that the customer knows how to do it safely. Moreover, Mr.
Guidry agreed that discussing the risks involved with removing and transporting
these types of cylinders is important because “it is foreseeable that, if someone
doesn’t know what they’re doing, somebody could get hurt or killed.”
In trying to create distance between itself and Mr. Malta’s injuries, Hiller’s
characterization of its conduct is misleading. As noted earlier, the error was not in
Hiller’s identifying a cylinder as being in need of service, but that Mr. Hebert’s
report erroneously indicated that the cylinder had 0 PSI, rather than that the gauge
read 0 PSI. Witnesses at trial noted that Mr. Hebert should have recognized that
the cylinder had a faulty gauge. Yet, Mr. Hebert made express representations to
14
Wood Group personnel that the cylinder was empty.
The trial court determined that Wood Group relied on Mr. Hebert’s
inaccurate reporting and express representations when it elected to remove and
transport the cylinder itself. The events that transpired after Mr. Hebert performed
his inspection were readily foreseeable. Wood Group believed that it was
removing an empty cylinder, so it is foreseeable that Mr. Harvey would instruct
Mr. Lowery to disconnect and transport the cylinder. Given Mr. Hebert certified
the cylinder as empty and had informed Mr. Lowery that it was empty, it is
foreseeable that Mr. Lowery would “not have had reservations” about
disconnecting and transporting the cylinder. Mr. Hebert advised Mr. Malta that the
cylinder was empty, it is foreseeable that Mr. Malta would not see a reason to issue
a stop-work order and seek help relocating the cylinder once it was removed from
the cargo basket. While evidence was presented that Wood Group lacked the
training to handle the cylinder that was erroneously certified as having 0 PSI, the
trial court found that Wood Group relied on the expertise of Mr. Hebert when it
undertook the removal and transport of the cylinder. Therefore, we find the
evidence supports a finding that the risk and harm Wood Group encountered fell
squarely within the scope of protection of Hiller’s duty to provide competent
inspections and accurate reporting.
Premises Liability
Before we address Hiller’s comparative fault argument, we first consider
Hiller’s claim that Helis is liable for Mr. Malta’s injuries under La. C.C. art.
2317.1, which states in pertinent part:
The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the
15
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care.
It is undisputed that Wood Group had complete control over the operations
at the Black Bay facility, and Helis had no employees on site. Mr. Harvey testified
that Wood Group was the sole operator of the facility and therefore had complete
authority over it. Similarly, Wood Group’s control room operator testified that
Helis did not supervise the day to day operations of Wood Group. Further, there is
no evidence to establish that the cylinder was damaged by ruin, vice or defect, or
that Helis knew or should have known about it. The only evidence presented at
trial of a vice or defect was the faulty pressure gauge. Even then, as Mr. Malta
correctly asserts, to the extent Helis could have identified and prevented the defect,
it did so by hiring Hiller. Accordingly, we find no merit this assigned error.
Trial Court’s Allocation of Fault
Hiller also contends the trial court failed to consider the comparative fault of
other parties. La. C.C. art. 2323 states in pertinent part:
In any action for damages where a person suffers injury, death, or
loss, the degree or percentage of fault of all persons causing or
contributing to the injury, death, or loss shall be determined,
regardless of whether the person is a party to the action or a
nonparty, and regardless of the person's insolvency, ability to pay,
immunity by statute, including but not limited to the provisions of
R.S. 23:1032, or that the other person's identity is not known or
reasonably ascertainable. If a person suffers injury, death, or loss
as the result partly of his own negligence and partly as a result of
the fault of another person or persons, the amount of damages
recoverable shall be reduced in proportion to the degree or
percentage of negligence attributable to the person suffering the
injury, death, or loss.
La. C.C. art. 2323(A). “Since the adoption of a pure comparative fault system, it
has been the task of the factfinder to allocate shares of negligence.” Keith v. U.S.
Fid. & Guar. Co., 96-2075, p. 7 (La. 5/9/97), 694 So. 2d 180, 183 (citing Socorro
16
v. City of New Orleans, 579 So.2d 931 (La.1991)).
The trial court apportioned 100 percent of the fault to Hiller. It is well-
settled that an appellate court reviews a trial court’s allocation of fault under a
manifest error standard of review. Watson v. Hicks, 15-0046-0048, p. 7 (La. App.
4 Cir. 5/27/15), 172 So.3d 655, 663-64 (citing Beggs v. Harrah’s New Orleans
Casino, 14-0725, p. 13-14 (La. App. 4 Cir. 1/21/15)). Therefore, “appellate courts
are required to give great deference to the trial court's allocation of fault and that
‘[o]nly after making a determination that the trier of fact's apportionment of fault is
clearly wrong can an appellate court disturb the award.’” Id., 15-0046-48, p. 7,
172 So.3d at 664 (quoting Fontenot v. Patterson Ins., 09-0669, p. 22 (La.
10/20/09), 23 So.3d 259, 274).
In its written reasons for judgment, the trial court explained the factual basis
for apportioning all fault against Hiller, as follows:
It is undisputed that this accident was the cause of Mr. Malta’s
injuries. Several expert and fact witnesses testified that all pressurized
cylinders, regardless of the reading on the pressure gauge, must be
treated as if under pressure. However, the Court finds that the
testimony of several witnesses, including the Plaintiff, to be credible
in that the Wood Group employees relied upon Mr. Hebert’s
representations and believed that they were removing and transporting
a cylinder that was no longer pressurized. Specifically, Mr. Harvey
testified that had Mr. Hebert advised that the gauge could be faulty,
and that the cylinder might still be under pressure, he would not have
let his employees remove the cylinder.
The Court finds from all of the evidence introduced at trial that
Hiller’s employee Dray [sic] Hebert’s discussion with Wood Group’s
foreman Lilton Harvey, led directly to the chain of events that resulted
in Mr. Malta’s injuries, and is at fault for the cause of this accident.
Contrary to Hiller’s contention, the trial court did consider evidence of
comparative fault. The trial court acknowledged that testimony was presented to
establish that it is common practice to treat all cylinders, regardless of the pressure
17
gauge reading, as if they are pressurized. Having heard the testimony of experts
and fact witnesses, including Mr. Malta, the trial court weighed the evidence and
made certain credibility determinations. Notably, Hiller’s employees are licensed
and trained experts, and therefore in the best position to identify hazards associated
with the fire suppression system. Mr. Hebert’s failure to provide accurate
reporting of his findings created the risk Hiller was hired to mitigate. Accordingly,
the trial court allocated all fault against Hiller.
We note that while this Court may have apportioned fault differently, we
must give deference to the trial court’s allocation of fault. Moreover, the Louisiana
Supreme Court has held that “[t]he appellate court must not reweigh the evidence
or substitute its own factual findings because it would have decided the case
differently.” Snider v. Louisiana Med. Mut. Ins. Co., 14-1964, p. 5 (La. 5/5/15),
169 So.3d 319, 323 (citing Pinsonneault v. Merchants & Farmers Bank & Trust
Co., 01-2217 (La. 4/3/02), 816 So.2d 270, 278-79). For these reasons, we cannot
say the trial court’s allocation of fault in this case is manifestly erroneous.
Damages Award
Finally, Hiller contends the trial court’s damages award is excessive. “[T]he
role of an appellate court in reviewing general damages is not to decide what it
considers to be an appropriate award, but rather to review the exercise of discretion
by the trier of fact.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.
1993). Because “[e]ach case is different, . . . the adequacy or inadequacy of the
award should be determined by the facts or circumstances particular to the case
under consideration.” Id. “It is only when the award is, in either direction, beyond
that which a reasonable trier of fact could assess for the effects of the particular
injury to the particular plaintiff under the particular circumstances that the
18
appellate court should increase or reduce the award.” Id., 623 So.2d at 1261.
This Court noted that “[a]n appellate court may not overturn an award for
general damages unless it is so out of proportion to the injury that it shocks the
conscience.” May v. Reg’l Transit Auth., 19-0510, p. 9 (La. App. 4 Cir. 12/30/19),
289 So.3d 195, 202, writ not considered, 20-0203 (La. 4/27/20), 295 So.3d 950
(internal citations omitted). “Consideration of prior awards to determine whether a
judgment . . . is excessively high is only appropriate after the appellate court has
determined that an abuse of discretion has occurred.” Id. (internal citations
omitted).
The trial court awarded Mr. Malta $1,000,000 in general damages for his
physical injuries and $350,000 for his psychological injuries. On appeal, Hiller
alleges that the trial court’s award bears no connection to the evidence relative to
Mr. Malta’s injuries. Hiller avers Mr. Malta’s medical history shows that before
the accident he suffered from stress, depression, and back pain. Thus, Hiller argues
Mr. Malta should not recover for pre-existing conditions unrelated to the accident.
While Mr. Malta may have suffered previously from back issues, the record
reflects that Mr. Malta did seek treatment for his back complaints after the
accident. Nothing in the record suggests that his prior back issues caused him to
undergo diagnostic testing. However, after the accident, Mr. Malta’s back pain
was severe enough that he had a diagnostic test performed. In May 2012, a month
after the accident, Mr. Malta had an MRI scan of his back. According to spinal
surgeon Alexis Waguespack (“Dr. Waguespack”), the scan showed a herniation of
the L4-5 disk. At the time, Dr. Waguespack recommended an epidural spinal
injection along with pain medication, which Mr. Malta received later that month.
When Mr. Malta’s condition did not improve, Dr. Waguespack ordered another
19
round of injections. By April 2013, Mr. Malta’s condition did not improve and Dr.
Waguespack recommended surgery. Mr. Malta had back surgery in May 2013, but
continued to suffer back and leg pain. In July 2013, Dr. Waguespack referred Mr.
Malta for physical therapy. A functional capacity evaluation in July 2014
determined that Mr. Malta had some permanent physical restrictions, including
medium-level duty only and “no lifting greater than 30 pounds, repetitive bending,
lifting, stooping, prolonged sitting.” Dr. Waguespack also indicated that Mr. Malta
could no longer engage in heavy-duty work that he was performing at the time of
the accident. In Dr. Waguespack’s opinion, Mr. Malta’s herniation was related to
the April 2012 accident. Dr. Gregor Hoffman, the physician Hiller retained to
conduct an independent medical examination of Mr. Malta, agreed that Mr.
Malta’s herniated disk and shoulder injury were due to the April 2012 accident.
Dr. Hoffman also agreed that back surgery was the appropriate course of treatment.
In addition to a back injury, Mr. Malta suffered several fractures in his heel.
Mr. Malta testified that he had to wear a compression boot and that recovery for
his heel injury took eight to ten months. During this time, he was forced to use a
wheelchair because his injuries prevented his ability to use crutches. Mr. Malta
testified that he still suffers from foot-related issues. He stated that every day he
returns home from work, his foot is swollen. To reduce the swelling, Mr. Malta
lies in bed with his foot elevated and uses ice packs. Mr. Malta also suffered a
shoulder fracture that required surgery in October 2013.
Further, Mr. Malta suffered emotionally as a result of the accident and his
injuries. The record reflects that Mr. Malta suffered from various psychological
problems after the accident, including problems with sleep, nightmares, irritability
and conflicts with his family, panic attacks, flashbacks (wherein he would focus on
20
the fact that the cylinder could have killed him), and financial worries. Mr. Malta
expressed that prior to the accident he was active and had become sedentary. Dr.
Angela Traylor, an expert in neurology and psychiatry, diagnosed Mr. Malta with
post-traumatic distress order (“PTSD”) and major depressive episode and
prescribed medication for him. Dr. Traylor indicated that Mr. Malta needed further
treatment or counseling. However, Mr. Malta testified that he was unable to
continue treatment with Dr. Traylor because the worker’s compensation carrier
would not approve treatment.
In 2018, Mr. Malta resumed psychotherapy with Dr. Fernando Pastrana, a
clinical and neuropsychologist. Dr. Pastrana testified that when he first saw Mr.
Malta that Mr. Malta “was in a state of distress, frustrated with the current
circumstances” and was seeking assistance managing his stress. Dr. Pastrana
indicated that it was unlikely that Mr. Malta’s issues with PTSD and related
symptoms would resolve on their own. While Mr. Malta was making progress
under his care, Dr. Pastrana opined that Mr. Malta would need at least an
additional three to five years of treatment. Hiller notes in its brief that while Mr.
Malta had “over 26 supportive therapy sessions, . . . [Dr. Pastrana] never diagnosed
him with post-traumatic stress disorder.” Yet, Dr. Pastrana testified that his work
with Mr. Malta was therapeutic and not evaluative. Additionally, Dr. Pastrana
“accept[ed] Dr. Traylor’s diagnoses.”
At trial, Mr. Malta described how he changed after the accident. He testified
that he “became very bitter, very angry, treated [his] wife horribly, treated [his]
family horribly. [He] just became a monster.” He testified that he and his wife
married six days after the accident and proceeded with their wedding so as not to
lose their deposits. However, they were unable to go on their planned honeymoon.
21
Mr. Malta described his lifestyle as “very active” before the accident. He owned
motorcycles and dirt bikes and riding them was his “passion.” Because he
experienced too much pain riding his dirt bikes after the accident, he had to sell
them. He also testified that he sold his motorcycles because he “had bills to pay.”
Mr. Malta’s wife testified that before the accident Mr. Malta had never been
depressed. She stated that she noticed a “dramatic change” in him after the
accident. As his condition worsened over time, she worried that he had become
suicidal. At one point, she had him admitted to the hospital for a 12-hour period
when she worried he would take his life. She expressed that he has an attitude
where “[h]e doesn’t care at all about anything.”
Considering the nature and extent of the physical injuries Mr. Malta
suffered, in addition to the mental and emotional toll the physical injuries took on
him, we cannot say the trial court’s award of damages is “beyond that which a
reasonable trier of fact could assess.” Youn, 623 So.2d at 1261. Therefore, we find
no abuse of the trial court’s discretion in its award of damages.
Answer to Appeal
In his Answer to the Appeal, Mr. Malta seeks modification of the trial
court’s amended judgment. With respect to the award for lost wages and past
medical expenses, the trial court amended the judgment to indicate that the award
was “subject to a credit of amounts previously paid to and received by [Mr.
Malta].”5 Mr. Malta contends that the judgment, as amended, is unclear. The
5
The judgment references an award for not only “los[t] wages” but also “future earning capacity.” It
makes no distinction as to what portion of the $300,000 award is for lost wages or for future earning
capacity. In that a credit is given for what has actually been paid, “subject to a credit for amounts
previously paid” refers to those sums paid for lost wages and not future earning capacity. Prior to
trial, the parties stipulated that Ace paid worker’s compensation benefits to Mr. Malta totaling
$241,071.92, of which $99,037.04 was for “indemnity payments.” We note, however, that the
parties stipulated, prior to trial, that Mr. Malta received $58,474.96 in indemnity from the LHWCA
22
parties stipulated that Mr. Malta received benefits from Ace and Signal Mutual
Indemnity Association, Ltd. (“Signal”), which paid wages under a policy of
Longshore and Harbor Workers’ Compensation Act (“LHWCA”) insurance.
Although Signal did not intervene in this action,6 Mr. Malta maintains that the
amended judgment could be interpreted as giving Hiller a credit for payments
Signal made to him. Therefore, he asks this Court to modify the judgment to state
that a credit be given for those “amounts previously paid to, or on behalf of
Plaintiff by Ace.”
In response, Hiller filed a motion to dismiss Mr. Malta’s answer to the
appeal. Hiller alleges that Mr. Malta “seeks relief related to the lien held by
Signal” and because Signal is not a party to the instant action, Mr. Malta’s answer
“should not permit a review of the judgment as to an insurer, Signal, which is not
in the case or as to issues related to Signal’s lien.” Hiller, likewise, contends that
to “revise the [amended judgment] to prevent any credit against [Mr. Malta’s]
recovery for Signal’s Longshore Act Lien . . . may render Hiller responsible for
that lien and thus, assessed double damages, having to pay both [Mr. Malta] and
Signal for the same amount.”
At the hearing on the motion to alter or amend the judgment, the trial judge
noted that he did not intend “to make anybody pay twice.” He stated that he
“[b]elieved the plaintiff ought to recover once and that the intervenor ought to get
paid the money it spent once.”
We agree with Hiller that this Court cannot review issues relating to a non-
carrier. Thus, of the $300,000 awarded for “los[t] wages and future earning capacity,” $142,488
represents an award for future earning capacity (i.e., $300,000-$99,037.04-$58,474.96=$142,488).
6
Mr. Malta avers that the Signal has notified him that it will require him to repay benefits it paid
to him once Hiller pays the judgment. The record does not contain a lien letter or like demand
from Signal.
23
party as to do so would amount to this Court issuing an advisory opinion. Edward
v. Badie, 19-0332, p. 2 (La. App. 4 Cir. 8/28/19), 282 So.3d 269, 270 (“‘courts will
not decide abstract, hypothetical or moot controversies, or render advisory
opinions with respect to such controversies’” (quoting Cat’s Meow, Inc. v. City of
New Orleans through Dep’t of Fin., 98-0601, p. 8 (La. 10/2/98), 720 So.2d 1186,
1193). Nevertheless, we find the amended judgment creates some unintended
ambiguity; and therefore, we deny Hiller’s motion to dismiss Mr. Malta’s answer
to the appeal.
The amended judgment provides a credit for “amounts previously paid to
and received by” Mr. Malta. As to the trial court’s award for lost wages, the added
language is unambiguous because those wages were paid to him directly.
However, as to the award for past medical expenses, we find the added language is
ambiguous to the extent that medical expenses may have been paid to medical
providers and not to Mr. Malta directly. Therefore, we amend that part of the
judgment awarding past medical expenses to provide for “a credit of amounts
previously paid to and received by Plaintiff or paid on behalf of Plaintiff.” The
effect of our amendment is to ensure that Hiller is not required to pay its share of
medical expenses and lost wages to Mr. Malta in addition to reimbursing Ace for
the very same sums.
Finally, the trial court’s amended judgment awards Ace, as the workers
compensation intervenor, $241,071.92, the exact amount the parties stipulated Ace
paid in benefits for medical expenses and wages. In giving Hiller a credit for sums
already paid to or on behalf of Mr. Malta, the sums its owes Ace would be reduced
from Mr. Malta’s award for lost wages and medical expenses.
CONCLUSION
24
The evidence presented at trial established that Hiller owed a duty to
competently inspect fire safety equipment and accurately report its findings to its
client. Mr. Hebert owed this duty to Wood Group when he conducted his
inspection at the Black Bay facility. Moreover, Mr. Malta’s injuries fell within the
scope of Hiller’s duty. The evidence further demonstrated that Mr. Hebert
breached his duty when he failed to recognize that the cylinder at issue was still
pressurized. Consequently, Mr. Hebert’s reporting and communicating of his
findings misled Wood Group personnel, who believed the cylinder had 0 PSI and
therefore, empty. The accidental discharge of a cylinder certified as empty by an
expert that causes substantial damage to a person or property is a foreseeable risk.
Thus, the trial court could reasonably conclude that, as the expert, Hiller was in the
best position to prevent the events that led to Mr. Malta’s injuries. Based on the
record and the deference this Court gives to the trial court’s factual determinations,
we find no manifest error in the trial court’s allocation of all fault against Hiller.
Further, considering the nature and extent of the physical injuries Mr. Malta
suffered, in addition to the mental and emotional toll the physical injuries took on
him, we find no abuse of the trial court’s discretion in its award of damages.
Nevertheless, we amend the trial court’s judgment as to the award for past medical
expenses to provide for a “credit of amounts previously paid to and received by
Plaintiff or paid on behalf of Plaintiff.” In all other respects the trial court’s
amended judgment is affirmed.
DECREE
For the foregoing reasons, the trial court’s judgment is affirmed as amended.
25