Appendix — Collins v. LaFleur

Supreme Court, U.S. 4

FILED

JUN 29 1989

JOSEPH F. SPANIOL, JR

CLERK

6R721266

In the en

Supreme Court of the United States

OCTOBER TERM, 1988

ROBERT MURRAY COLLINS AND JOHN RICHARD

LUDBROOKE YOUELL, AS REPRESENTATIVES

OF CERTAIN UNDERWRITERS AT

LLOYD'S LONDON, ET AL

Petitioners

V.

MANSEL J. LAFLEUR,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF LOUISIANA

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

WINSTON EDWARD RICE

Of

RICE, FOWLER, KINCSMILL,

VANCE, & FLINT

Poydras Center, Suite 2600

650 Poydras Street

New Orleans, Louisiana 70130

Telephone: (504) 523-2600

Attorneys for Petitioners

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

Page

APPENDIX A

Order, the Supreme Court of

the State of Louisiana,

Aerts) 2s 2Oee ee ee a SRE

APPENDIX B

Order, the Supreme Court of

the State of Louisiana,

March 27, 1989 . . ‘ : i » A=-3

APPENDIX C

Opinion, Fourth Circuit Court

of Appeal, State of Louisiana,

Decenper 13, 1988 . .« « » «+ A*5

APPENDIX D

Judgment on Motion for Summary

Judgment, Twenty-Fifth Judicial

District Court, Parish of

Plaquemines, State of

Louisiana, January 15, 1988 . . A-15

APPENDIX E

Excerpts from Deposition of

Mansel J. LaFleur .......A

|

=)

00

APPENDIX F

Excerpts from Deposition of

Captain Cre@l .. .= »« «© » « « » A=26

APPENDIX A

THE SUPREME COURT OF THE STATE OF LOUISIANA

MANSEL J. LAFLEUR

vs. NO. 89-C - 0425

P & S WELL SERVICE NO. 5 INC. et al

IN RE: ROBERT MURRY COLLINS AND JOHN

RICHARD LUDBROOKE YOUELL, applying for

Rehearing of Writ Granted with Order

3/27/89 to the Fourth Circuit Court of

Appeal No. 88CA-0686; 25th Judicial Court

No. 28-208 Division A.

April 21, 1989

Rehearing denied.

JCW

CALOGERO, J., would grant the rehearing.

Supreme Court of Louisiana

April 21, 1989

Frans J. LaBranche, Jr.

Clerk of Court

For the Court

A-3

APPENDIX B

THE SUPREME COURT OF THE STATE OF LOUISIANA

MANSEL J. LAFLEUR

VS. NO. 89-C - 0425

P & S WELL SERVICE NO. 5 INC. et al

IN RE: LaFleur, Mansel J.; - Plaintiff(s);

Applying for Writ of Certicrari and/or

Review; to the Court of Appeal, Fourth

Circuit, Number 88CA-0686; Parish of

Plaquemines 25th Judicial District Court

Div."A" Number 28-208

March 27, 1989

Granted. Summary judgment vacated. Case

remanded to trial court for further

proceedings.

JCW

JAD

WFM

LFC

CALOGERO, J., would grant and docket for

argument.

A-4

Supreme Court of Louisiana

March 27, 1989

Frans J. LaBranche, Jr.

Clerk of Court

For the Court

APPENDIX C

MANSEL J. LAFLEUR NO. 89-CA-0686

COURT OF APPEAL

VERSUS

—

FOURTH CIRCUIT

P & S WELL SERVICE

NO. 5, INC., ET AL STATE OF LOUISIANA

APPEAL FROM _

TWENTY-FIFTH JUDICIAL DISTRICT

PARISH OF PLAQUEMINES

DIVISION A, NO. 28-208

HONORABLE MICHAEL E. KIRBY, JUDGE

STEVEN R. PLOTKIN

JUDGE

(Court composed of Chief Judge Patrick M.

Schott and Judges Robert J. Klees, and

Steven R. Plotkin

Plaintiff has appealed from a summary

judgment denying his Jones Act claim. We

affirm.

Plaintiff Mansel J. LaFleur’ was

injured October 10, 1984, while working as

a painter/sandblaster for defendant Bo-Mick

Construction Company, Inc. (hereinafter Bo-

Mick). He alleges his injuries occurred

while he was stepping from a vessel, the

L/B Gear Elevator, to the fixed platform on

which his duties were performed. He

brought suit based upon 46 U.S.C. 688 (the

Jones Act) and General Maritime Laws of the

United States, or, in the alternative, 33

U.8S.¢. 901 (the Longshoremen's-) and

Harborworkers' Compensation Act), against

Bo-Mick, his employer, P & S Well Service

NO. 5, Inc., owner of the vessel; and Gulf

Oil Company, Inc., platform owner. He

later amended his’ petition to include

Liberty Mutual Insurance Co., Bo-Mick's

insurer, and certain underwriters of Lloyds

of London, Bo-Mick's excess coverage

insurer. Bo-Mick and Lloyds of London

filed motions for summary judgment.

On November 25, 1987, the parties

agreed to submit the matter to the trial

court on written briefs. On January 15,

1988, judgment was rendered dismissing

plaintiff's Jones Act and General Maritime

Law claims and reserving to plaintiff his

claims under the Longshoremen's’” and

Harborworkers' Compensation Act or

Louisiana Worker's Compensation Act.

Ls

Mansel J. LaFleur, who worked for Bo-

Mick approximately six months prior to the

accident, sandblasted and painted fixed

platforms owned by Gulf Oil Company in

Black Bay, in Plaquemines’ Parish,

Louisiana. The work did not require that

LaFleur stay overnight on a vessel; each

morning he met a crewboat which took him to

the jack-up barge containing his

sandblasting and painting equipment. The

barge could move under its own power but it

was Slow and cumbersome; its primary

function was to hold the compressor and

sandblasting pots used in maintaining the

platforms. When plaintiff left the crew

boat and boarded the barge each morning,

the barge traveled a short distance and

positioned its2lf adjacent to the platform.

The plaintiff's job required that he use an

air hose from the barge on the platform and

that he go back and forth between the barge

and the platform many times a day.

On the day of the accident, the jJack-

up barge was positioned about four feet

above the platform. In going from the

barge to the platform, plaintiff attempted

to step onto a piling but slipped and fell

to the platform and then into the water.

Plaintiff alleges he suffered injuries that

have prevented him from working since that

time.

Plaintiff argues that summary

Judgment is rarely proper in Jones Act

cases and that it is improper in this case

because there is a reasonable evidentiary

basis to support a finding that’ the

plaintiff is a seaman.

Se

Under the Jones Act, “any seaman who

shall suffer a personal injury in the

course of his employment" has a right to

claim damages in an action alleging that

his employer was negligent. 46 U.8.C.As

section 688. This court recently reviewed

the question of when a question of seaman

A-10

status could be resolved by summary

judgment. In Fayard v. Contifleeting Inc.,

511 So.2ad 3, 4 (La. App. 4th Cir.), writ

denied, 514 So.2d 461 (La. 1987), we

noted:

(w)hile summary judgment on seaman

status in Jones Act is rarely proper,

and even in marginal cases should go

to the jury, it is in some

circumstances possible to rule as a

matter of law that a worker is not a

seaman. Bouvier v. Krenz, 702 F.2d

89, at 90 (5th Cir. 1983), and cases

cited therein; cf. Pizzitolo v.

Electro-Cool Transfer Corp., 812 F.2d

977 (5th Cir.1987), where the appeals

court affirmed the district court's

decision on the issue as a matter of

law in rendering a judgment

notwithstanding the verdict.

As in Fayard, here the facts of the

plaintiff's duties are not in dispute and

the only issue is whether the facts meet

the requirements for seaman status.

The test for seaman status was

established in Offshore Company vv.

b=

1

11

Robison, 266 F.2d 769, 779 (5th Cir.,

1959). The Robison court stated:

there 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 ... 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 or to the

accomplishment of its mission, or to

the operation or welfare of the

vessel in terms of its maintenance

GQuring its movement or during

anchorage for its future trips.

Recently the Robison test was reaffirmed in

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

1067 (5th Cir. 1986).

Applying the Robison test to the

case at hand, we find that LaFleur did not

satisfy the first element of the standard.

LaFleur admitted in his deposition that all

his work was done on fixed platforms and

he had no duties on the barge. The fifth

Circuit m6 6URGrrk hh hCUY, Land & Marine

Applicators, Inc., 555 F.2d 481 (5th Cir.

1977), addressed the question of whether a

sandblaster/painter working on a fixed

platform was a seaman for Jones) Act

purposes. The court found that although

the plaintiff had incidental ties to a

support vessel (he lived aboard one), his

principal duties as a_sandblaster and

painter were performed on the _ fixed

platform and therefore he did not satisfy

the first element of the Robison test. The

plaintiff in Kirk had a stronger tie to a

vessel than LaFleur because he ate, slept

and did minor chores aboard it; LaFleur's

only relationship with the vessel was that

it provided him with transportation to the

platform and storage space for his gear.

— Moreover, recent cases have held

that workers whose duties occur primarily

on fixed platforms are not to be considered

AM~23

seaman on the basis of their connection

with vessels offering mainly support

services for the platform. Longmire v. Sea

Drilling Corp., 610 F.2d 1342 (5th Cir.

1980) (a roughneck assigned to a drilling

platform who occasionally performed tasks

on the support vessel was not a seaman even

though he was injured while stowing the

anchor chain); Billings v. Chevron, U.S.A.,

INC., 618 F.2d 1108 (5th Cir. 1980) (a

roustabout on a fixed platform rig whose

duties included loading and _ unloading

tenders onto the platform was not a

seaman); Golden _v. Rowan Companies, Inc.,

778 F.2d 1022 (5th Cir. 1985) (worker who

maintained motors on a rig and performed

various jobs of short duration on a vessel

was denied seaman status); Miller v. Rowan

Companies, Inc., 815 F.2d 1021 (5th Cir.

1987) (worker whose job entailed retrieving

A-14

drilling tools from a well and who lived

aboard an adjacent vessel which served as

bunkhouse for the crew was not a seaman).

Because plaintiff fails to meet the

first element of the Robison test-~-that he

waS assigned permanently to a vessel or

performed a substantial part of his work on

a vessel--and therefore cannot be

considered a seaman for purposes of the

Jones Act, it is not necessary for us to

examine the second element of Robis3on.

Accordingly, the judgment of the

district court is affirmed.

AFFIRMED

APPENDIX D

TWENTY-FIFTH JUDICIAL DISTRICT COURT

PARISH OF PLAQUEMINES

STATE OF LOUISIANA

NO. 28-208 DIVISION "A"

MANSEL J. LAFLEUR

vs.

P & S WELL SERVICE #5, INC., ET AL

FILED: JAN 15, 1988 Candace Dufrene

DEPUTY CLERK

JUDGMENT ON MOTION FOR SUMMARY JUDGMENT

This matter was set for hearing on

November 25, 1987. All parties agreed to

submit the matter.

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment herein in favor of

Robert Murray Collins and John Richard

Ludbrooke Youell, as representative of

Certain Underwriters at Lloyd's’ London

severally subscribing each for himself and

not one for the other, to certain maritime

employer's liability coverage, and against

plaintiff Mansel J. LaFleur finding that

said plaintiff is not a seaman within the

meaning of the Jones Act or the General

Maritime Law of the United States and

dismissing those claims of plaintiff as to

all defendants.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in

favor of defendant Bo-Mick Construction

Company, Inc. and against plaintiff, Mansel

J. LaFleur, dismissing the plaintiff's

Jones Act and General Maritime Law claims

as to Bo-Mick Construction Company, Inc.,

specifically reserving to plaintiff any

claim he may have under the Longshoreman's

A-17

and Harbor Worker's Act, or the Louisiana

Worker's Compensation Act, or both, if any.

JUDGMENT READ, RENDERED AND SIGNED at

Pointe-ala-Hache, Louisiana this 15th day

of January, 1988.

M. Kirby

JUDGE

APPENDIX E

Excerpts from Deposition of

MANSEL J. LAFLEUR

Deposition of LaFleur - page 37

captain in jacking the barge up?

A. No.

Q. Did you ever assist in tying the

barge up or untying the barge?

A. Huh-uh (negative response).

Q. You have to say yes or no.

A. No.

Q. Did you ever work on the engines

on the barge?

A. No.

Q. Did you ever clean or paint the

barge?

A No

Q. Did you ever do any work on the

barge, other than work on_- Bo-Mick's

equipment that would be on the barge? In

A-19

other words, did you ever do any mechanic's

work on tne barge or help the captain with

anything?

A. No.

Q. Did you every drive the barge,

steer the barge anywhere?

A. No.

Q. I suppose you would take your

lunch on the barge during the day?

Deposition of LaFleur - page 43

Q. Are the structures pretty close

together out there?

A. Yeah, they're not far apart.

Q. And the work on all of these was

sandblasting and then painting; is that

correct?

A. Yes.

Q. Now, as far as the crewboat ride,

you didn't have to drive the crewboat at

all, did you.

O. Now, the sandblasting and

painting work that you did on the

structures during the time you worked for

Bo-Mick in the Black Bay field, did you

ever have to work on the barge itself,

stand on the barge itself to do the work on

the platform, or did you get off of the

barge to do your work?

A. Most of the time you just -- you

don't work on the barge. You have to paint

on the platform. I don't remember ever

working off of the barge to get to nothing.

Q. Now, when you got to a

Deposition of LaFleur - page 45

small two-gallon paint pot. We had to take

them on the platform with us.

Q. As far as the sandblasting is

concerned, the sandblast pots and the

compressor would remain on the barge?

GO. And I suppose there would be

rubber hoses that went across to _ the

platform, to the guns themselves?

A. Right.

Q. Did the helper ever do any

sandblasting or painting?

A. No.

Q. Was his job just to keep the pots

filled and make sure the equipment was

running?

A. Yes, sir. He shoveled sand, he

tailed our paint lines, helped us tape

gauges and stuff, and then when we

sandblasted, he had to run the pot on the

barge.

G., So he would make sure the pot was

full of sand?

A. Yeah, fill it up and turn it on

and off.

A-

22

Deposition of LaFleur - page 47

Q. When did you do that? That's

something you had a regular time every day

that you would do it?

A. When sandblasting, we usually

stop a couple of hours before knock off

time to blow it down. We blow it down with

the hose as much as we could.

Qo. By blowing it down, you mean the

structure you just got done sandblasting?

A. Yes, so we could paint it.

And sometimes if it was too heavy, we had

to shovel it off of there. We done that

every day. But we both done it. I helped

him do it.

Q. What about the sand that got on

the barge during the operation? I'm sure

some sand must have blown on the barge.

Who cleaned that?

A-23

A. The skipper, as far as I know, he

would wash it. I mean I don't know. I

never did clean it.

Q. All right. Now, at the time of

the accident or the day of the accident, do

you know the name or the number of the

Deposition of LaFleur - page 129

A. She's married to him, yes.

MR. WARD:

Thank you very much,

Mr. LaFleur.

EXAMINATION BY MR SACKS:

O. I have just a few questions for

you, please. Did you state that you had

been working for Bo-Mick approximately six

months by the time you had this injury?

A. Yes.

Q. All right. And during that six

months, can you give me a general

A-24

description of the kind of work you were

doing there?

A. Sandbiast and paint.

é. Was all the sandblasting and

painting you did in connection with oil

field type projects?

A. Yes, sir.

Q. Was the work that you did only

for- Gulf or was there work for other oil

companies, as well?

A As far as I can remember, it was

for Gulf, Gulf Oil.

Deposition of LaFleur - page 130

Go, And did it consist mostly of

painting and sandblasting offshore

production facilities?

A. Yes.

Q. How did you learn of where you

had to go or what particular platforms had

to be painted?

a”2°

A. Them boat captains knows the name

of them piatforms and how to get to then,

and that's how we -- I mean I'm not

navigator.

Q. Where would you report in the

mornings, generally speaking? Would you go

to the Bo-Mick office every morning?

A. No, sir, we would go to the boat

docks in Buras where they dock their

crewboats and catch our boat there every

morning, and it let us back down that

night.

Q. I'm a little confused about the

Situation of the structure and the barge.

Now, you suggested that the little porch

was about five steps or so below the main

deck of the platform; is that correct?

Excerpts

APPENDIX F

from Deposition of

CAPTAIN CREEL

Deposition of Creel - page 8

or could you describe that for me?

A.

sometimes we'd

according to how

Sometimes

we'd come in, and

stay out. It's just

the weather was.

Q. You had quarters, sleeping

quarters, on the --

A. No. We come home every night

with a crew boat.

0. There are no facilities on that

barge to sleep?

A. No, Bir.

Q. What about a galley? Does it

have that?

A. No. It don't have anything.

Just a little house on it.

onisastsill

A-27

Q. You say at the present time this

barge is being used for welding support?

A. Right now. We've got a welder on

there working for Chevron out there right

now.

Q Does the barge have a name?

A Yes. GEAR ELEVATOR.

Q. Is that like a gear on a car?

A GEAR ELEVATOR.

Q. Is that on the bow of the barge

or

Deposition of Creel - page 10

particular platform was from the

headquarters?

A. I guess a couple of thousand

yards, I imagine.

Q. How did you get back and forth to

work each day?

A. Well, sometimes on my barge and

sometimes a crew boat would pick us up if I

had to leave my barge on location.

Q. Did you go back and forth on this

jack-up barge to work?

A. Well, at times, yeah, if I didn't

leave it on location.

oF Was your normal routine to leave

it on location until you completed a job?

A. No. It was left up to us, if we

wanted to leave it there or take it in.

ak Well, at the time Mr. LaFleur was

working there, did ya'll normally leave it

on the platform site at night?

A. No, not particularly.

0; Could you give me an idea, say,

in the previous -- the week prior to this

accident how many times you may have

Deposition of Creel - page 53

QO. Yes. That particular platform

that you were working on.

A-29

A. About two or three minutes from

the barge. Maybe four. Something like

that.

Q. And would Mr. LaFleur ride on the

GEAR ELEVATOR during that trip?

A. Right.

Q. Did he assist you in positioning

the GEAR ELEVATOR next to the platform?

A. No, sir. He never did assist me

in nothing.

Oo. That would be your. docking

maneuvers yourself?

A. Right.

Q. And there is no need to tie off

or anything, you just start spudding down?

A. That's right.

oF What would he do during that

period when you were traveling from the

wirehouse to the platform?

A. Oh, he would set in the cabin

with me then and maybe stand outside, you

know.

Deposition of Creel - page 57

A. Right.

Q. And with Bo-Mick?

A. Right.

Q. Did Mr. LaFleur or his helper

ever assist you in any of the operation of

the barge?

A. No, sir. Never did.

Q. To your knowledge, is the only

work that they were involved 11 is the

painting and sandblasting cf the platform?

A. Right.

MR. SACKS:

That's all I have.

Thank you.

GO. What is your source of

information about the GEAR ELEVATOR working

for

you

out

Mr.

tel]

Gulf and then getting laid off? How do

know about that?

A. Well, they run out of work for us

there.

Q. But how do you know that; from

Ritchie?

A. Right. Well, they tell me. They