Petition for Writ of Certiorari — Smith v. Nicklos Drilling Co.

‘pie? oe

NO. JOSEPH F. SPANIOL, JR.

TreRc™

In the

Supreme Court of the United States

OCTOBER TERM, 1988

HERMAN J. SMITH AND SHIRLEY B. SMITH,

Petitioners

VERSUS

NICKLOS DRILLING COMPANY, ET AL.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

JOHN R. PETERS, JR.

JONES, WALKER, WAECHTER,

POITEVENT, CARRERE & DENEGRE’

5000 Place St. Charles

201 St. Charles Avenue

New Orleans, Louisiana 70170

Telephone: (504) 582-8000

LOUIS J. ST. MARTIN

ESTELLE E. MAHONEY

LOUIS J. ST. MARTIN,

A PROFESSIONAL LAW CORPORATION

#1 Church Street

Post Office Box 3320

Houma, Louisiana 70361

Telephone: (504) 868-9600

COUNSEL FOR PETITIONERS,

HERMAN J. SMITH

and SHIRLEY B. SMITH

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

a

ee te

i

QUESTIONS PRESENTED

Whether the Fifth Circuit Court of Appeals erred in

affirming the District Court’s granting of defendant’s Mo-

tion for Summary Judgment on Petitioner’s, Herman

Smith’s, claim to seaman status when there existed

disputed material facts which presented a genuine issue for

trial?

Whether a Jones Act seaman loses status, as a mat-

ter of law, by virtue of a temporary shoreside assignment?

ii

LISTING OF ALL THE PARTIES

Undersigned counsel for Petitioners, Herman J.

Smith and Shirley B. Smith, provides the following list of

parties as required by Supreme Court Rule 21.1(b):

1) Herman J. Smith

2) Shirley B. Smith

3) Nicklos Drilling Company

A Division of Nicklos Oil and Gas

Company

4) Compass Insurance Company

/s/ Estelle E. Mahoney, T. A.

ESTELLE E. MAHONEY, T. A.

Counsel for Petitioners, Herman J.

Smith and Shirley B. Smith

iii

TABLE OF CONTENTS

Page

Questions Presented for Review............cccccccccccsecsececeoceseese. i

Neen sc nsosasanstaonnsensenl ii

hdc scceisescenesdsanceneesnsanmnnnaseannansinan iii

SR SR Aeneas See iv

kT TS ae TT Ae Vv

Statement of Jurisdiction..................c.ccccccccesessssesesecscesececees 1

eNO 2

RE SIE eS ES ee Pe eee eS Tae de 3

STRAIN sce dbnhesaccintidsphishada lst ibindaniscnasbiaacesedata 8

ee NID sais csitiecenasintcickdecleteitt gt Se 10

ERE EY CE ORR RCL TC RE A-1

I iti denciiodutcts ccctdecioicocsasncaciatcoconumecc caste coset A-6

iv

TABLE OF AUTHORITIES

CASE Page

5 Wright & Miller, Federal Practice & Procedure,

RINE BT a naciiccccsvcinsckcintcscrstastinssphaindagepnetpiptayresyecemecees 1

Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th

IN, SII il crcisccoscoontncnttiaonpidhicnhathvamsabiguasadeipiomntiipnassanes 4,6

Bryson v. Brand Insulations, Inc. 621 F.2d 556 (3rd

iis is ha scaiisatinnacar tna aaa caabtreepeennntiineenanesnecte 1

Collins v. Bolton, 287 F.Supp. 393 (N.D. Ill. 1968).......... 1

Guidry v. South Louisiana Contractors, Inc., 614

F.2d 337, 453 (5th Cir. 1980) 692 F.2d at 265........... 4,7

Manguia v. Chevron Company, U.S.A., 768 F.2d

GOD, CED ele Cie. 20D iiss ccescceencccctssisicintiaecannstnistinicdscesse 6

Savoie v. Otto Candies Company, Inc., 692 F.2d 363

A SIU, Be cninicticinencescnksssacensinasisntatscnsavnsiniiticcasiteagl 4,6,7

STATUS AND RULES

a a aed iathebiiiaietadbitisneciitiicitensiniccsabinntaneion 2

OG TEBE. CR re Oe irre etecccrrrsctcccccrcsccscsecescsnnssesnnee 3

Rule 17.1(a) - Supreme Court Rules.................::ccsssccseseseees 2

Rule 21.1(b) - Supreme Court Rules...................::ccccseesseeees ii

Rule 54 - Federal Rules of Civil Procedure......................+. 1

Rule 56 - Federal Rules of Civil Procedure........................ 1

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1988

HERMAN J. SMITH, ET AL,

Petitioners

VERSUS

NICKLOS DRILLING COMPANY, ET AL..,

Respondents

ON WRIT OF CERTIORARI TO THE UNITED

STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF LOUISIANA

ORIGINAL PETITION FOR WRIT OF CERTIORARI

STATEMENT OF JURISDICTION

This Petition for Certiorari arises out of the granting

by the United States District Court for the Eastern

District of Louisiana of a Motion for Summary Judgment

brought by the Respondents, Nicklos Drilling Company, A

Division of Nicklos Oil and Gas Company (‘‘Nicklos’’) and

Compass Insurance Company, filed pvrsuant to Rule 56 of

the Federal Rules of Civil Procedure, dismissing Peti-

tioners’ case. Judgment in favor of the Respondents was

entered on December 23, 1986. Said Judgment was a final,

appealable judgment on the merits of a controversy within

the meaning of Rule 54 of the Federal Rules of Civil Pro-

cedure. See, e.g. Bryson v. Brand Insulations, Inc., 621

F.2d 556 (3rd Cir. 1980); Collins v. Bolton, 287 F.Supp. 393

(N.D. Ill. 1968). See, also, 5 Wright & Miller, Federal Prac-

tice and Procedure, Section 1372.

The decision of the United States District Court for

2

the Eastern District of Louisiana was affirmed on appeal

by the Fifth Circuit of the United States Court of Appeals,

on April 5, 1988. Subsequently, on May 23, 1988, Petition

for Rehearing and Rehearing En Banc, filed by Petitioners

were denied.

The Supreme Court of the United States may proper-

ly exercise its power of supervision as the Appellate

Court’s ruling herein is in conflict with other decisions in

the Fifth Circuit.

Rule 17.1(a) of the Supreme Court Rules and 28

U.S.C. Section 2101 confer on this Honorable Court’s

jurisdiction to review the judgment in question by writ of

certiorari.

STATEMENT OF THE CASE

Petitioner, Herman J. Smith, first commenced

employment with Nicklos in 1961 and worked for them

from 1961 through 1965. In 1968, he was re-employed by

Nicklos and for the next fifteen (15) years, worked for

Nicklos as a mechanic and seaman and member of the crew

of Nicklos Rig No. 20, a movable, diesel powered, semi-

submersible, barge drilling rig. During that time, Smith

typically worked a ‘‘7 on/7 off’’ hitch.

On March, 1983, Nicklos Rig No. 20 and Nicklos Rig

No. 21, another movable, semi-submersible, diesel powered

barge drilling rig, were ‘stacked.’’ However, from March

1983 Smith continued to work on Nicklos Rig No. 20, inter

alia, performing mechanic and maintenance work on the

rig. On October 23, 1983, Smith and his relief mechanic,

Henry Rogers were “‘laid off’’ due to lack of work. Smith

subsequently “‘returned’”’ to work for Nicklos in November,

1983. Significantly, Nicklos’ report of Smith’s November |

12, 1983 accident gives his “date of hire’ as November |

1968 rather than November 1983. :

In late 1983, Nicklos purchased two “electric over '

diesel’’ powered semi-submersible movable drilling rigs !

nitieetinieeeammammmmeiel

3

which were given the designation Nicklos Rig No. 32 and

Nicklos Rig No. 35. Nicklos Rig No. 20 and Nicklos Rig No.

21 were taken out of service.

Smith’s accident occurred on November 12, 1983, on

Nicklos Drilling Rig No. 25, a fixed land rig. The accident

occurred when a two-inch rubber air hose used to supply air

to a Kelly spinner! blew off of a steel air line made up by

means of a “quick connection” - a clamp and screw

mechanism, rather than a connection fabricated into the

line. As a result of that accident, Smith sustained, inter

alia, an open depressed right frontal skull fracture, which

required surgery for debridement of dead brain tissue

under the fracture and repair of the lining of the brain. As

a result of the head injury, Smith sustained bilateral fron-

tal lobe damage. In the accident, Smith also sustained in-

juries to his left leg and knee and to his right hand. Addi-

tionally, Smith was rendered physiologi impotent. At

the time the Respondents’ Motion for Summary Judgment

was granted, Smith was still undergoing active medical

treatment for all of his injuries.

Petitioners’ claims were filed pursuant to the Jones

Act, 46 U.S.C. Section 688 et seg. and the General

Maritime Law. This was the basis of federal jurisdiction in

the court of first instance.

ARGUMENT

The Fifth Circuit’s decision is in conflict with

longstanding jurisprudence in that circuit and acts to

deprive Petitioners of their constitutional right to trial by

jury. It impermissibly substitutes its judgment for that

specifically allotted to the fact finder under the Jones Act.

The Fifth Circuit stated at page 599 of its opinion

that both Smith’s work location and status were per-

manently changed. It went on to further state:

1 A Kelly spinner makes up to drilling pipe when pipe connections are

made in the field.

4

Smith argues that the permanency of this change

should have been a fact for the jury to decide. The

permanency, however, was _ undisputably

established when the old barge rig was finally

removed from service; he was never to return to

the status of crew-member on that vessel.

It was undisputed that Smith was a Jones Act

seaman in the employ of Nicklos at some point not long

before his injury. However, as noted in Savoie v. Otto Can-

dies Company, Inc., 692 F.2d 363 (5th Cir. 1982), the

holding in which Petitioners submit was not changed by

Barrett, at 365:

[H]ow long a seaman’s status continues after a

shoreside assignment is itself a fact question

dependant upon such factors as the duration of

the assignment, its relationship to the employer’s

business, whether the employee was free to ac-

cept or reject it without endangering his employ-

ment status and any other factors relative to the

ultimate inquiry ... [citing] Guidry v. South Loui-

siana Contractors, Inc., 614 F.2d 447, 453 (5th

Cir. 1980) 692 F.2d at 365 (Emphasis added.)

As should have been abundantly clear from the

record, all of the factors mentioned by the Savoie Court

were in dispute when the District Court granted

Respondents’ Motion and their resolution was for the jury.

The Fifth Circuit, given those disputed facts should have

reversed that District Court and ordered the matter to pro-

ceed to trial.

The testimony of Flossie LeDoux, Nicklos’ Claim

Manager, upon which Nicklos placed its main reliance,

revealed the existence of crucial disputed issues of material

fact which should have precluded the grant of summary

judgment. Respondents took the position that Smith was

permanently reassigned to a land job. While the Fifth

|

5

Circuit inexplicably accepted that argument, at page 34 of

Mrs. LeDoux’s deposition, she expressly ‘‘denies”’ that this

change occurred:

Q. Do you have, Mrs. LeDoux, any written

document that indicates that Herman Smith was

permanently reassigned to a land job?

A. Actually, I can’t say that anybody is per-

manently assigned to any particular rig, not per-

manently. I mean in the drilling business, you

can’t say that he’s permanently assigned to any

particular rig or anyplace.

At page 599, the Fifth Circuit stated:

Unlike cases where we look to see if the worker is

moved frequently from vessel to vessel within a

fleet so as to qualify the worker as a crewman on

a vessel, Smith had been permanently assigned to

one barge rig which was removed from service.

He was then reassigned to a land rig. It necessari-

ly follows that Smith’s regular assignment was

changed when Nicklos Rig No. 20 was

decommissioned.

Admittedly, Mrs. LeDoux testified at page 27 of her

deposition that Smith was not going to be assigned to one

of the two new vessel rigs when they were put in service

because they were electric powered rigs as opposed to the

diesel powered rigs on which Smith had previously worked.

However, Henry Rogers, Smith’s relief mechanic during

Smith’s admitted tenure as a seaman, testified that

Nicklos Rig No. 35 wes equipped with two diesel engines

that generate the electric power for the rig and that the

essential nature of his job duties as a ‘“‘mechanic’’ did not

change when he was transferred from Nicklos Rig No. 20,

a diesel rig, to Nicklos Rig No. 35, an electric rig. See Depo.

Rogers, pp. 14-15.

6

Furthermore, the two other Nicklos_ diesel

mechanics, Hadley and Atalese, had worked on Nicklos Rig

No. 21, also a diesel powered rig. They were put ot work on

the electric rigs. Under controlling jurisprudence, Peti-

tioners were entitled to present this evidence to the jury as

it is evidence from which the jury could have concluded

that but for the fact he sustained an injury in November,

1983, Smith would indeed have been transferred to one of

the two new electric powered vessel rigs.

This dispute as to whether Smith’s ‘‘assignment”’ to

the land rig was permanent in nature, (thus representing a

permanent change in job location which, under Barrett,

would require assessment of his claim to seaman’s status

solely on the basis of his activities in his “‘new job’’) was for

the jury to resolve after a trial on the merits. The evidence

of record at the time the motion was granted was not view-

ed by the Fifth Circuit or by District Court - as it should

have been - ‘‘in a balance that gives utmost weight to the

worker’s evidence and the presumptions and inferences

logically deductible from that evidence.’”’ Munguia v.

Chevron Co. U.S.A., 768 F.2d 649 (5th Cir. 1985). Had the

evidence of record been viewed in the correct manner, it

should have been abundantly clear to the Fifth Circuit that

there was at least an evidentiary basis for the issue of

seaman’s status to be submitted to the jury.

In Savoie v. Otto Candies, Inc., 692 F.2d 393 (5th Cir.

1982), cited to the Fifth Circuit Panel and the District

Judge, the factual situation involved therein is closely

analagous to those present in the instant case. In that case,

the jury’s finding of seaman status was affirmed on appeal.

In Savoie, the plaintiff, began working for Otto Can-

dies, Inc. in February 1978 as a deckhand aboard its

vessels. He worked as a deckhand until August 1978 when

7

he suffered a fractured leg in an automobile accident. As

noted by the Savoie court in footnote 1 at page 365, there

was no evidence concerning his status at the time of the

1978 injury.

Plaintiff returned to work in mid-1979 and was

assigned to a Candies vessel as a deckhand, where he work-

ed until Spetember 1979. In September the metal rod in his

leg was surgically removed and on October 11, 1979, plain-

tiff was mistakenly returned to the Candies vessel as a

deckhand, a ‘“‘full-duty’’ assignment. However, due to a

later “‘discovery’’ that the plaintiff was, in fact, restricted

to “‘light duty’’, Candies took him off the vessel. Six days

later, plaintiff went to the Candies office to pick up his

paycheck and was told that if he wanted a light duty job

he could be assigned to clean some duck blinds owned by

Otto Candies and located on land which Candies leased.

Plaintiff accepted the assignment and, unfortunately,

while working in muddy ground and on uneven terrain, he

refractured his leg; that injury formed the basis of the suit

against Otto Candies. As previously noted, the jury return-

ed a finding in plaintiff’s favor and found that he was a

Jones Act seaman. On appeal, Candies argued that plain-

tiff at the time he was injured, had no vessel connection due

to the fact that he was physically unable to work on a

vessel, and therefore, not subject to the call of the vessel.

Noting that “normally the question of seaman status

in a particular case is to be resolved by the fact finder’’ [692

F.2d at 365], the Fifth Circuit found that there was suffi-

cient evidence for the jury to find that the plaintiff was a

Jones Act seaman at the time he was injured. Citing

Guidry v. South Louisiana Constrctors, Inc., 614 F.2d 447

(5th Cir. 1980), the Fifth Circuit noted that there was no

evidence of precisely how long the plaintiff’s assignment to

clean the duck blinds was to last. The Savoie court also

8

noted that plaintiff was to return to regular duty aboard

the Candies vessel in approximately two weeks, had he not

been injured. The evidence also showed that the duck

blinds were used to entertain Candies’ business clients and

that plaintiff was reluctant to reject the assigment from his

employer that he clean them. Particularly important to the

issues involved in the instant appeal, the Fifth Circuit at

page 366 noted:

... Nothing in the record conslusively establishes

that [plaintiff’s] general pattern of employment

with Candies as a deckhand was changed by the

temporary assignment to clean its duck blinds.

The record contains evidence from which a jury could

have reasonably concluded that, in fact, Smith’s tenure on

Nicklos (land) Rig No. 25 was intended to be temporary in

nature and that but for the fact of his injury, Smith would

have been assigned to work aboard one of Nicklos’ newly

acquired vessel rigs as a mechanic. This contention receives

particular support by the fact that Smith’s uninjured

counterparts aboard Nicklos Rigs No. 20 and 21 were, in

fact assigned to those replacement vessel rigs, Nicklos Rig

No. 32 and Nicklos Rig No. 35.

CONCLUSION

A myriad of disputed material facts of record

precluded the grant of summary judgment in Respondents’

favor. The Fifth Circuit gave short shrift to Petitioners’

arguments and invaded the jury’s province by making for

itself the factual determination that Smith’s job assign-

ment had been permanently changed. This Court has no

=—

i

9

choice but to grant certiorari to reverse the Fifth Circuit’s

decision and order the matter remanded for trial by jury.

Respectfully submitted:

ESTELLE E. MAHONEY

LOUIS J. ST. MARTIN,

A PROFESSIONAL LAW CORPORATION

Post Office Box 3320

Houma, Louisiana 70361

Telephone: (504) 868-9600

Counsel for Petitioners,

Herman J. Smith and

Shirley B. Smith

10

CERTIFICATE OF SERVICE

I, Estelle E. Mahoney, do hereby certify that I have

this day mailed by United States mail, postage prepaid, a

true and correct copy of the foregoing original brief of Peti-

tioners to all counsel of record this 22nd day of August,

1988.

ESTELLE E. MAHONEY

A-1

APPENDIX A

HERMAN J. SMITH and Shirley B. Smith,

Plaintiffs-Appellants,

Vv

NICKLOS DRILLING COMPANY and

Compass Insurance Company,

Defendants-Appellees.

No. 87-3071.

April 5, 1988.

Seaman brought action to establish Jones Act

coverage for injuries sustained while he was working on

land rig. The United States District Court for the Eastern

District of Louisiana, Veronica D. Wicker, J., granted sum-

mary judgment in favor of employer, and mechanic appeal-

ed. The Court of Appeals, Gee, Circuit Judge, held that

mechanic, who had been permanently assigned to floating

barge rig, was not entitled to Jones Act coverage for in-

juries sustained three weeks after he was reassigned to

land rig and barge rig was decommissioned.

Affirmed.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before THORNBERRY, GEE and POLITZ, Circuit

Judges.

GEE, Circuit Judge:

A-2

Once again we address one of our Court’s prime

recurring issues; has a particular injured worker been per-

manently assigned to or performed a substantial part of his

work on a vessel so as to qualify to sue as a seaman under

the Jones Act? Fashioning a bright line rule has troubled

our court, see Barrett v. Chevron, U.S.A., Inc., 781 F.2d

1067 (5th Cir. 1986), but the facts presented here do not ap-

proach the leinent line that we have drawn. We therefore af-

firm summary judgment for the defendant.

Facts

Appellant Herman Smith worked for several years as

a mechanic for Nicklos Drilling Company aboard a floating

barge rig known as Nicklos Rig No. 20. When No. 20 was :

retired from service in October 1983, Smith was reassigned

to a land rig; and three weeks later he was injured on that

rig while attempting to repair an air hose. About the time

of his injury, two new barge rigs had just been purchased

and put into service by Nicklos to replace Rigs No. 20 and

No. 21.

Discussion

Smith contends that the two newly-purchased rigs

constituted part of Nicklos’ ‘fleet of vessels’ and that,

because he had been more or less permanently assigned to

Nicklos’ fleet, he was a crewman on that fleet when injured.

We address this contention after a brief discussion of the

law that controls our inquiry.

In Offshore Company v. Robison, 266 F.2d 769 (5th

Cir. 1959), Judge Wisdom laid down for our court a two-

pronged test for determining seaman status. The first

prong requires that at the time of the injury, ‘‘the injured

workman was assigned permanently to a vessel ... or

em

A-3

performed a substantial part of his work on the vessel.’’ 266

F.2d at 779 (emphasis added).

Where the underlying facts are undisputed and the

record reveals ‘‘no reasonable evidentiary basis to support

a jury finding that the injured person is a seaman ... under

the Jones Act,’’ summary judgment is procedurally ap-

propriate. Beard v. Shell Oil Co., 606 F.2d 515, 517 (5th Cir.

1979). As for the substantive law of sometime seaman, we

have held that:

[T]he employee must be a seaman at the time his

claim arises; the fact that he was once a seaman

and that either he or his employer intend some

day for him again to become one do not suffice to

tint with blue water status all the events that

happened in between, however remote in time and

place from a vessel past or a vessel future.

Guidry v. South Louisiana Contractors , Inc., 614 F.2d 447,

453 (5th Cir. 1980).

Appellant urges us to read Barrett as erasing the

above holdings of Guidry. To the contrary, Barrett con-

firms them, reflecting upon the problem of a worker drif-

ting in and out of Jones Act coverage. Under the “‘substan-

tial part of work”’ standard of the Robison test, a case out-

come could be altered by the frame within which the court

elects to assess “‘substantial part.’’ As Barrett notes, if a

worker’s regularly assigned duties during a year’s period

require him to be on a vessel only twenty percent of the

time, then the circumstance that he was injured on a vessel

does not permit a finding that he was a crewmember under

the Jones Act, even though he happened to have worked on

the vessel for a week before the accident. 781 F.2d at 1076.

This ruling pertains to assaying a regular assignment,

A-4

however, and has no application where new assignments

are concerned.

Barrett underscores this important distinction:

If the plaintiff receives a new work assignment

before his accident in which either his essential

duties or his work location is permanently chang-

ed, he is entitled ve the assessment of the

substantiality of his vessel-related work made on

the basis of his activities in his new job.

781 F.2d at 1075-76 (emphasis added).

The above passage controls this case. Neither of

Smith’s assignments required him to divide his time bet-

ween vessel and land; rather, both his work location and

status were permanently changed when the floating rig on

which he had worked was decommissioned. Smith argues

that the permanency of this change should have been a fact

for the jury to decide. The permanency, however, was un-

disputably established when the old barge rig was finally

removed from service; he was never to return to the status

of crewmember on that vessel.

Smith also suggests that we should view his work as

essentially a permanent assignment to a “‘fleet of vessels’’:

while one is being decommissioned and two new ones are

about to be put into service, his landside assignment does

not cost him his seaman status. This argument poorly

characterizes Smith’s regularly assigned duties before the

accident to a fleet of vessels; he had worked on one vessel

for several years. Unlike cases where we look to see if the

worker is moved frequently from vessel to vesel within a

fleet so as to qualify the worker as a crewman on a

“‘vessel’’, Smith had been permanently assigned to one

a a

A-5

barge rig which was removed from service. He was then

reassigned to a land rig. It necessarily follows that Smith’s

regular assignment was changed when Nicklos Rig No. 20

was decommissioned.

Smith cites Savoie v. Otto Candies, Inc., 692 F.2d

363 (5th Cir. 1982) as support for his argument that his

assignment to a land rig, and injury thereon, should not

disqualify him from seaman status. In Savoie, a worker

who had been injured in a non-work related accident came

back to work on a vessel when his doctor’s release form

cleared him for light and regular duty. After one day at

work, the employer received word from the doctor that a

mistake had been made and the worker was, in fact, fit for

light duty only. He was therefore temporarily assigned

ashore and was injured while cleaning a duck blind.

The worker in Savoie was temporarily assigned to

shore duty because of his injury. His regularly assigned

duties were not changed by this temporary assignment,

however, nor was the vessel to which he would have return-

ed had he completed his convalescence placed out of com-

mission. By contrast, Smith’s regularly assigned duties on

Rig No. 20 were fundamentally charged when Rig No. 20.

was shut down. His assignment to land was permanent—

which, as in determination of residence, means no more

than ‘‘for an indefinite period’’—not temporary. Nothing in

life, alas, is permanent.

For the reasons stated, we AFFIRM the district

court’s grant of summary judgment to defendants in this

case.

A-6

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-3071

Filed May 25, 1988

HERMAN J. SMITH,

AND SHIRLEY B. SMITH, ET AL,

Plaintiffs-Appellants

versus

NICKLOS DRILLING COMPANY, A DIVISION

OF NICKLOS OIL & GAS COMPANY, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

ON SUGGESTION FOR REHEARING EN BANC

(Opinion APRIL 5, 1988, 5 Cir., 198___., F.2d )

( MAY 23,1988 _ )

Before THORNBERRY, GEE and POLITZ, Circuit

Judges

PER CURIAM:

(~ ) Treating the suggestion for rehearing en banc as a

petition for panel rehearing, it is ordered that the petition

for panel rehearing is DENIED. No member of the panel

nor Judge in regular active service of this Court having re-

quested that the Court be polled on rehearing en banc

(Federal Rules of Appellate Procedure and Local Rule 35),

the suggestion for Rehearing En Banc is DENIED.

A-7

( ) Treating the suggestion for rehearing en banc as a

petition for panel rehearing, the petition for panel rehear-

ing is DENIED. The judges in regular active service of this

Court having been polled at the request of one of said

judges and a majority of said judges not having voted in

favor oi it (Federal Rules of Appellate Procedure and Local

Rule 35), the suggestion for Rehearing En Banc is

DENIED.

ENTERED FOR THE COURT:

/s/ illegible

United States Circuit Judge

A-8

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FILED

Dec 23 1986

HERMAN J. SMITH AND CIVIL ACTION

SHIRLEY B. SMITH

VERSUS NO. 85-1556

NICKLOS DRILLING COMPANY SECTION “L”

A DIVISION OF NICKLOS OIL

AND GAS COMPANY

JUDGMENT

The Court having granted Nicklos Drilling Co., etc

and Compass Insurance Company motion for summary

judgment;

accordingly:

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment in favor of the defendants and

against plaintiffs dismissing plaintiffs’ case at their costs.

New Orleans, Louisiana, this 17th day of December,

1986.

/si/__Vironica D. Wicker

UNITED STATES DISTRICT JUDGE

DATE OF ENTRY DEC 23 1986