Appendix — Cavalier v. T. Smith & Son, Inc.

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APPENDIX “

FACT STIPULATIONS AND FINDINGS OF FACT AT TRIAL OF CAUSE

1. In January of 1977, T. Smith contracted with the

owners of the M/V Sei Shin to unload cargo from the

vessel onto river barges.

2. To unload said vessel, T. Smith employed a longshore

gang who were hired from the union hall and were paid

on an hourly basis.

3. The derrick barge Patricia, owned and operated by

T. Smith, is a navigable vessel, 200 feet in length,

56 feet in width and 11 foot depth, on which is mounted

a traveling gantry crane. The vessel is designed for

making heavy lifts. As used by T. Smith, the vast

majority of its work is the loading and unloading of

cargo to and from vessels, although on occasion it is

used to make other lifts, e.g. ship's anchors, ship's

machinery.

4. The derrick barge Patricia is crewed from a

special pool of permanent employees of T. Smith, who

are paid a fixed salary with overtime and vacation pay

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and were not hired from the union hall. These crew

members permanently worked only on derrick barges.

5. The crew of the Patricia are never intermingled

and/or assigned to work in a longshore gang.

6. The duties of the crew of the Patricia were

to maintain the vessel, paint and chip, tie up, cast

off and to perform any duties necessary to carry out

the function of the vessel.

7. On Febraury 1, 1977, T. Smith was engaged in

performing its contract to discharge the M/V Sei Shin,

then berthed at the Louisiana Avenue Wharf. Plaintiff,

Martin Cavalier, was a member of T. Smith's longshore

gang, which was working inside the hatches of the Sei

Shin hooking up the drafts of cargo. The Patricia was

lifting the drafts, once hooked up by the longshoremen,

out of the ship and landing them in the river barges

where the drafts were unhooked by other longshoremen.

Work commenced at 6:00 p.m., and the accident occurred

at approximately 3:00 a. m. on February 1, 1977.

8. At approximately 3:00 a. m., plaintiff's gang

was working in the No. 1 hatch hooking up drafts of

30 foot pipe in slings attached to the fall of the derrick.

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Anderson Nicholas, a member of the crew of the derrick,

was standing over the No. 1 hatch, at the main deck

of the Sei Shin, signaling Merlin Culver, the operator

of the derrick crane who was also a member of the crew

of the derrick, as he lifted the drafts of cargo out

of the ship hold.

9. Through an error in judgment (negligence) of

either the crane operator (Culver) or the flagman (Nicholas),

the draft failed to clear the hatch coaming at the main

deck, striking same and causing the pipes to slide out

of the slings and fall into the hatch below, seriously

injuring the plaintiff.

10. The plaintiff's injuries included an open

comminuted fracture of his proximal left femur, multiple

rib fractures, a fracture of his left inferior ischio-

public ramus, a dislocation of the symphsis pubis and

of the right sacro-iliac joint.

ll. As a result of plaintiff's injury, T. Smith,

through Employers National Insurance Company (its

compensation insurer), has incurred medical expenses

and paid compensation benefits to plaintiff under the

provisions of the Longshoremen’s and Harbor Workers’

Compensation Act.

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12. Plaintiff has brought suit against T. Smith

under 905 (b) of Longshoremen's and Harbor Workers’

Compensation Act for injuries sustained in the accident.

The plaintiff alleges that T. Smith is liable under

905 (b) as owner of the vessel Patricia because of the

neglience of the crew members. T. Smith defends

alleging that plaintiff cannot recover because he was

injured by employees providing stevedoring services.

Conclusions of Law

1. The specific issue before this court is whether

the accident causing injury to plaintifff falls under

the exclusion of 905 (b) that provides "if such person

was employed by the vessel to provide stevedoring

services, no such action shall be permitted if the

injury was caused by the negligence of persons engaged

in providing stevedoring services to the vessel," so

that the derrick barge Patricia and its owner, T. Smith

and Son, are immune from a negligence action under 905(b).

2. The negligence of the Patricia is not disputed,

nor is it disputed that the plaintiff is a person covered

under the LHCA. Although the plaintiff was not providing

stevedoring services to the Patricia, but, rather, the

Sei Shin, the Patricia falls within the definition of

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vessel in the LHCA because it was a vessel “upon

which or in connection with which any person entitled

to benefits under this chapter suffers injury...in the

course of his employment,"33 U.S.C. 902 (21).

3. Although defendant, T. Smith and Son, is the

employer of the plaintiff as well as the owner of the

vessel, the Fifth Circuit held in Smith v. M/V Captain

Fred, 546 F.2d 119 (c. A. 5th Cir., 1977), that a

longshoreman may sue his employer qua vessel under

905(b). Therefore, absent the applicability of the

exclusion set out in the second sentence of 905(b),

the plaintiff could recover in a negligence action

against T. Smith and Son.

4. In Captain Fred, the court interpreted the

following report of the House Committee as indicating

that they intended the Yaka rule to survive the 1972

amendments of the LHCA:

"The Committee has also recognized the need for

special provisions to deal with a case where a

longshoreman or ship builder or repairman is employed

directly by the vessel. In such case, notwith-

standing the fact that the vessel is the employer,

the Supreme Court, in 34, 10-1. 14 2 4483 373

U. 8. 410 (83 8. Ct. 1349, L. Ed.

(1963) and Jackson v. 1210 Bros. Steamship 98

386 U. 8. 7 8. Ct. > L. Ed.2d )

(1967), held that the unseaworthiness remedy is

available to the injured employee. The Committee

believes that the rights of an injured longshoreman

or shi ilder or rman should not depenc

on whethe was loyed directl the vessel

or by an independent contractor. Accordingly,

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the bill provides in the case of a longshoreman

who is employed directly by the vessel there will

be no action for damages if the injury was caused

by the negligence of persons engaged in performing

longshoring services. Similar provisions are

applicable to ship building or repair employees

employed directly by the vessel. The Committee's

intent is that the same vessel whi

5. This passage has been analyzed by other courts

as a guide to interpreting the meaning of the exclusions

contained in 905(b). In Edmonds v. e Generale

Transatlantique, 99 S. Ct. 2753, 443 U. 8. 256, 61 L. ed

2d 521 (1979), the U. 8. Supreme Court, in d‘cca, said

that the legislative intent was to “treat the vessel

that provides its own stevedoring services just like

other shipowners when and if it negligently causes

injury as a shipowner and just like other stevedores

when it negligently injures in the course of providing

its own loading and unloading services." The Supreme

Court construed the second sentence of 905(b) to permit

a third party suit against the vessel providing its

own loading and unloading services when negligence in

its nonstevedoring capacity contributes to the injury.”

6. The Second Circuit Court of Appeals had occasion

to consider the exclusion in the second sentence of

905(b) in Smith v. Eastern Pile Driving, 604 F.2d 789

(1979). That court said that "the key issue is whether

the shipowner's employees who were at fault committed

the negligent acts in their capacity as agents of the

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vessel on the one hand or as employees performing

longshoring ...services on the other." The court found

that in order for the exemption to apply, the injured

worker and the neglient employee must both have been

performing the same function, whether it be longshoring,

shipbuilding, repair work or...some other task."

7. The Fourth Circuit Court of Appeals, citing

the Smith v. Eastern case, came to the same conclusion

as the Second Circuit in regards the second sentence

of 905(b). Richardson v. Norfolk Shipbuilding, 621

F. 2d 633 (1980). The Richardson case is very similar,

factually, to the case at bar. In that case, two

employees of Norfolk were doing repair work on the U.S.S.

Nashville and in order to do their work, they were

suspended in a tray along the ship by means of a crane.

The crane was operated by an employee of Norfolk and

was positioned on a wooden barge owned by Norfolk.

The men were injured by the fault of the crane operator.

Plaintiffs argued that they should recover because they

were not providing repair services ot the barge, but

were part of the crew. The court rejected that argument

and held that the accident occurred while the employees

were acting in the capacity of repairmen and, therefore,

could not recover because of the exclusion of 905(b).

8. In the instant case, plaintiff is a longshoreman

who was hired by T. Smith and Son for the sole purpose

of assisting in stevedoring services being provided

to the Sei Shin. The plaintiff was injured by regular

employees of T. Smith and Son who were crew members

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of the stevedoring vessel and who were at that time

assisting in the stevedoring operations.

9. The parties have stipulated that if either the

crane operator or the flagman had been injured in the

present accident, instead of plaintiff, and elected

to sue T. Smith and Son under the Jones Act, he would

be adjudged a seaman as a matter of law. They have

also stipulated that if either the crane operator or

flagman had been injured in the present accident, instead

of plaintiff, and elected to sue T. Smith and Son for

compensation benefits under the LHCA, he would be adjudged

a non-seaman and entitled to benefits under the Act

on the grounds that his primary duty was that of

longshoreman. N

10. The court recognizes these stipulations as

part of the record, however, what legal status these

employees may be entitled to has no bearing on whether

the exclusion should apply to the accident involved.

As demonstrated by the cases cited earlier, the proper

inquiry is in what capacity was the crane operator or

the flagman acting at the time the accident occurred.

At the time of the injury, one tortfeasor was operating

a crane to remove cargo from the Sei Shin's hold and

the other was signaling the crane operator. There is

no doubt that they were engaged in providing stevedoring

services to the vessel at the time they negligently

injured the plaintiff.

11. In the House Committee Report quoted earlier, Congress

made it clear that all workers covered by the act should

ave the same rights no matter who the owner of the vessel

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was. By this, Congress intended that not only should

an injured worker not be precluded from a negligence

action against the vessel merely because it was owned

by his employer, but also intended that a worker not

be given any greater rights because his employer

happened to be the vessel owner. The purpose of the

exclusions was to prevent the latter from happening.

12. If the plaintiff were to be allowed to recover

in this case, the consistency of treatment would be

destroyed. A longshoreman injured, as the plaintiff

was here, from the negligent operation of a floating

crane would recover, but one injured through the negligent

operation of a shore-based crane would not. Such a

result would create a purely fortuitous distinction

not intended by the drafters of 905(b).

13. Therefore, for the above reasons, the plaintiff

is not entitled to a negligence action against T. Smith

and Son because he was injured by employees providing

stevedoring services.

ADDENDUM

Having concluded that the stipulated facts do not

accord plaintiff a cause of action against T. Smith

and Son under 905(b), yet taking into account thac

a reviewing court will have a completely equivalent

ability to resolve this issue, I believe that judicial

economy and the interest of justice are best served

if I turn to a full consideration of plaintiff's damage

clain.

Cavalier suffered severe and painful injuries

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as a result of the accident on February 1, 1977. The

steel pipes struck his left leg, knocking him down

and among other pipes stowed in the hold of the ship

and also caused injury to his head, ribs and hip.

He sustained a scalp laceration, compound fracture of

the left femur, multiple fractures of his ribs on the

left side, separation of the symphysis pubis and fracture

of the inferior part of the left pubis.

He was an inpatient at Touro Infirmary and later

at Ochsner Foundation Hospital for a total of more than

two months. When he was first admitted at Touro, surgery

was performed and a traction pin Was inserted into

the proximal tebia. The operation wound was left open

and the left leg was placed in traction for 17 days

in order to allow drainage of the wound. The plaintiff

was given a blood transfusion for excessive blood loss

and had an indwelling catheter in place. He received

IPPB treatments and blow bottle treatments to expand

his lungs, which caused pain to his fractured ribs,

in order to prevent pneumonia. He also wore an anti-

embolism stocking on his right leg to prevent the formation

of blood clots.

The plaintiff was transferred to Ochsner on February

17, 1977. on March 7, 1977, he had an open reduction

and Schneider nailing of the left femoral fracture.

The thigh and hip wounds were sutured and drainage tubing

was inserted. He was discharged from Ochsner on April

16 on crutches and still wearing a TED hose to prevent

blood clots.

411

Thereafter, he was seen by Dr. A. William Dunn on

an out-patient basis at Ochsner through November of

1978. Dr. Dunn saw him on numerous occasions during

this period for complaints of leg and back pain, and,

on March 20, 1978, Dr. Dunn diagnosed traumatic chon-

dromalacia of the patella resulting from injuries

sustained.

On March 28, 1978, Cavalier was readmitted to Ochsner

Foundation Hospital for the removal of the Schneider

nail and for a left patellectomy. A cylinder cast was

applied, and he was discharged from the hospital on

crutches on April 3, 1978. He was then placed on

physical therapy for whirlppol and knee exercises and

in the latter partof May was walking with the aid of

a cane.

Dr. Dunn reported that plaintiff had reached maximum

recovery by late November, 1978. Although Cavlier still

compalined of pain in his back and knee at that time,

Dr. Dunn found that the plaintiff had no trouble with

his left hip and thigh, had full motion of his left

knee and a 20% loss of internal rotation range of his

left hip. That physician concluded that plaintiff would

not, thereafter, be physically able to return to work

as a longshoreman. Dr. Dunn found him to be depressed

as a result of the accident and resulting injuries and

referred him to a psychiatrist, Dr. Richard Mestayer.

Plaintiff was treated by Dr. Mestayer for depression

from late 1978 through December, 1979. When Dr. Mestayer

first saw plaintiff, he reported that Cavalier was severely

depressed and had suicidal feelings which were secondary

412

to the injury of February 1, 1977. He was hospitalized

on November 30, 1978, for this depression and was

discharged on December 24, 1978; however, the plaintiff

continued to experience depression during 1979. As

early as January, 1979, Dr. Mestayer had recommended

that the plaintiff seek some sort of employment, but

this was not affirmatively acted upon.

In November, 1979, the plaintiff consulted Dr. Essam

Elmorshidy for back pain which he (Cavalier) felt was

related to the injuries received in the accident. On

Febraury 7, 1980, he was admitted to Methodist Hospital

by Dr. Elmorshidy for evaluation of the chronic bac«

pain and lumbar disc syndrome. He was treated with

chemotherapy and pelvic traction and was discharged

approximately a week later. Plaintiff was still

being treated for back pain in August, 1980.

The plaintiff was seen by Dr. James Williams on

August 20, 1980, approximately three weeks before trial.

Dr. Williams found that Cavalier had some diastasis

of the symphysis pubis and a 20% partial permanent

disability of the left knee as a resultof the patellectomy.

From all of the above, I am convinced that plaintiff

has experienced significant, long-term pain and suffering

and that he will continue to suffer some intermittant

pain and will continue to experience physical disabilities

which will effectively obviate his returning to heavy

work similar to his pre-injury status as a longshoreman.

Accordingly, I believe that had plaintiff prevailed,

he would have been entitled to an award for past, present,

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future pain, suffering and disability in the amount

of $110,000.00.

Furthermore, I believe that Cavalier would have

been entitled to certain medical expenses which have

been incurred but not, as yet, paid in his behalf.

The include:

Dr. Essam Elmorshidy $ 306.00

Dr. Richard Mestayer 580.08

Methodist Hospital 1,574.65

Ochsner Foundation Hospital 999.99

$3,460.72

Finally, had plaintiff prevailed, he would be

entitled to loss of wages, which I will discuss in

further detail as follows: I conclude that plaintiff's

annualized average income prior to his injury was $13,500

per annum, or $1,125 per month. Having concluded that

Cavalier was totally idsabled form the date of the accident

until the end of 1978, I find that during that period

he sustained a wage loss of $25,000. 1 further conclude,

based upon the medical and related testimony, that

Cavalier, though able to return to limited employment

(which he did not choose to do) in 1979, would have

(even if he had done so) incurred a wage loss of $8,000

and, likewise, in the first half of 1980, $4,000. Thus,

I conclude that Cavalier has experienced an overall

past wage loss of $37,000.

Though plaintiff has a college degree and was,

in my view, able, at the time of trial, to return to

gainful employment in various capacities, he has not

seen fit to do so. He contends that inside desk work

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makes him nervous and that, as a matter of fact,

he sought employment as a longshoreman to get away

from the kind of inside desk work that he still seeks

to avoid. These contentions may be accurate, and, yet,

it is obvious to me that Cavalier has both the physical

and mental capacity to adequately perform in a substantial

spectrum of job opportunities. Furthermore, it is

clear to me from the evidence adduced at the time of

trial that Cavalier has been operating a taxicab business

for several months and, in the course of same, has either

operated his own taxicab and/or operated other owned

vehicles through the use of other personnel who pay

a certain overriding figure to Cavalier for the use

of those vehicles which Cavalier has obtained and

converted to taxicabs.

Even so, it is apparent that Cavalier will not be

able to return to work as a longshoreman and will, more

likely than not, over his work life expectancy, experience

a future wage loss which, through not susceptible to

categoric determination, will be, in my estimation,

on the order of $50,000.00.

Accordingly, had I reached a different conclusion

with respect to liability, I would have awarded the

following:

Past, present and future pain and

suffering and perman=at disability $110,000.00

Medical and hospital expenses $ 3,460.72

Past, present and future wage loss 87 00

460. 72

October 15, 1980.

Peter Beer

U. 8. District Judge

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APPENDIX “

JUDGMENT

The Court, noting that in rem process against the

M/V SEI SHIN was never perfected and having heretofore

dismissed, without prejudice, the complaint of Martin

Cavalier against Daiko Senkyo; having heard the evidence

on plaintiff's complaint against the several remaining

defendants; and having rendered findings of fact and

conclusions of law based thereon:

IT IS ORDERED, ADJUDGED AND DECREED that there

be judgment herein dismissing, with prejudice, the complaint

and supplemental and amended complaint and the second

supplemental and amended complaint of Martin Cavalier

against T. Smith & Son, Inc., Employers National

Insurance Company and Arkwright-Boston Manufacturing

Mutual Insurance Company, at complainant's costs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that

there be judgment herein dismissing, with prejudice,

the intervention of Employers National Insurance Company.

IT IS FURTHER ORDERED that the cross-claim of

T. Smith & Son, Inc., individually, against Employers

National Insurance Company,as its primary liability

carrier and as its compensation carrier, and the third

party complaint and amended third party complaint of

T. Smith & Son, Inc. against Arkwright-Boston Manufact-

uring Mutual Insurance Company, as its excess liability

carrier, be and they are hereby dismissed as moot.

New Orleans, Louistana, this 9th day of December,

1980.

Peter Beer

United States District Judge

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APPENDIX c“

OPINION OF CIRCUIT COURT OF APPEALS

Martin CAVALIER, Plaintiff-Appellant

v.

T. SMITH AND SON, INC., et al.,

Defendants-Appellees

United States Court of Appeals, Fifth Circuit

Feb. 26, 1982

Longshoreman brought negligence action against

vessel owner. The United States District Court for the

Eastern District of Louisiana, at New Orleans, 499 F.

Supp. 650, Peter Hill Beer, J., held that longshoreman's

suit was barred, and longshoreman appealed. The Court

of Appeals, Alvin B. Rubin, Circuit Judge, held that

longshoreman's action was barred, where injury was

caused by negligence of person engaged in providing

stevedoring services to vessel.

Af firmed.

1. Worker's Compensation

Longshoreman injured by negligence of crew of vessel

may sue owner of vessel even though owner is also his

employer, liable to him for compensation under Longshoremen's

and Harbor Workers’ Compensation Act.,§§ 1-51,33 U.S.C.A.

§§ 901-950.

2. Workers’ Compensation

Longshoreman's action for negligence of vessel

owner was barred, where injury was caused by negligence

of persons engaged in providing stevedoring services

to vessel. Longshoremen's and Harbor Workers’ Compensation

Act, § 5(b), 33 U. S. c. 48050.

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Appeal from the United States District Court for

the Eastern District of Louisiana.

Before RUBIN, SAM D. JOHNSON and GARWOOD, Circuit

Judges.

ALVIN B. RUBIN, Circuit Judge:

[1] A longshoreman injured by the negligence of

the crew of a vessel may sue the owner of the vessel

even though the owner is also his employer, liable to

him for compensation under the Longshoremen's and

Harbor Workers’ Compensation Act ("LHWCA"), 33 U.S.C

§§ 901-950(1976 & Supp. III 1979). Smith v. MV Captain

Fred, 546 F. 2d 119, 122-23 (Sth Cir. 1977). In this

case the district court held that a longshoreman's suit

is barred by the provisions of the LHWCA, however, if

the negligence that caused the injury is attributable

to members of the vessel's crew who are performing

stevedoring services when the plaintiff is injured. This

holding is based on an express provision of the LHWCA,

and we, therefore, affirn.

The facts were stipulated. Because they are

set forth at length in the district court's opinion,

499 F. Supp. 650 (E.D. La. 1980), we merely sketch them

here. T. Smith & Son, Inc. (T. Smith”), a general

contract stevedore, contracted with the owners of the

M/V Sei Shin to discharge cargo from that ship and to

load the cargo into river barges. Martin Cavalier, a

longshoreman employed by T. Smith, was a member of a

gang of longshoremen working inside a lower hold

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of the ship hooking up bundles of cargo. The cargo was

to be removed from the ship by a crane mounted on the

derrick barge Patricia, owned and operated by T. Smith,

then lying alongside the ship. The flagman and the

operator of the derrick crane, both of whom were members

of the derrick crew, controlled the passage of cargo

as it was lifted up through open hatches of the ship.

The crane operator could not see the loads until they

cleared the coaming of the hatch at the main deck of

the ship, so the flagman was positioned on the main

deck of the ship giving hand signals to the crane operator.

Cavalier was injured when, solely through the negligence

of either the crane operator or the flagman, a draft

of pipes failed to clear the hatch coaming, causing the

pipes to slip out of their sling and fall into the hold

below, injuring Cavalier. T. Smith through its compensation

insurer, paid Cavalier compensation benefits under the

provisions of the LHWCA. Cavalier now seeks to recover

from T. Smith for negligence in causing his injury.

121 In Smith v. M/V Captain Fred, supra, we analyzed

the applicability of 33 U.S.C. 905(b) when longshoremen

working on a vessel owned by their employer are injured

through the fault of members of the crew of the vessel.

We have since applied its precepts when the crew members

were not performing stevedoring work. Bossard v. Port

Allen Marine Service, Inc., 624 F. 2d 671 (Sth Cir. 1980)

(per curiam). However, the scope of Smith v. M/V Captain

Fred is limited by the statute itself, I which provides

that an action for “negligence of a vessel cannot be

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brought if the injury was caused by the negligence

of persons engaged in providing stevedoring services

to the vessel. That proscription fits this case perfectly.

The authority of Smith v. M/V Captain Fred stops at the

statute s bar. This is the interpretation given the

LHWCA by other Courts of Appeals. Richardson v. Norfolk

Shipbuilding & Drydock Corp. 621 F.2d 633, 634-635 (4th

Cir. 1980); Smith v. Eastern Seaboard Pile Driving, Inc.,

604 F. 2d 789, 795 (2d Cir. 1979); Griffith v. Wheeling

Pittsburgh Steel Corp. 521 F.2d 31,41(3d Cir. 1975),

cert. denied, 423 U.S. 1054, 96 S. Ct. 785, 46 L.Ed.2d

643 (1976).

We join these courts in following the clear

language of the statute and we AFFIRM for these reasons

and for the additional reasons set forth in the district

court's clear opinion.

1 Section 905(b) provides:

In the event of injury to a person covered under

this chapter caused by the negligence of a vessel,

then such person, or anyone otherwise entitled

to recover damages by reason thereof, may bring

an action against such vessel as a third party

in accordance with the provisions of section 933

of this title, and the employer shall not be liable

to the vessel for such damages directly or indirectly

and any agreements or warranties to the contrary

shall be void. If such person was employed by

vessel to provide stevedoring services, no such

action 8811 de * if the — 22 sepea —

in providing ——

ri 5 to the veneel to the vessel. 1 — such person

— emp yg ey the vessel to provide ship building

or repair services, no such action shall be permitted

if the injury was caused by the negligence of persons

engaged in providing ship building or repair services

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to the vessel. The liability of the vessel under

this subsection shall not be based upon the warranty

of seaworthiness or a breach thereof at the time

the injury occurred. The remedy provided in this

subsection shall be exclusive of all other remedies

against the vessel except remedies available

under this chapter.

(Emphasis added.)

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ON REHEARING

BEFORE RUBIN, SAM D. JOHNSON and GARWOOD, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be and

the same is hereby denied.

April 13, 1982

15.

CERTIFICATE OF SERVICE

I, George J. Kambur, attorney for the Petitioner

and a member of the Bar of the Supreme Court of the United

States, hereby certify that on this day of July,

1982, I did serve the requisite number of copies of the

foregoing Petition for a Writ of Certiorari and Appendicies

on all attorneys for the respondents by mailing said

copies to them, postage prepaid and addressed as follows:

THOMAS W. THORNE, JR.

Lemle, Kellerher, Kohlmeyer & Matthews

2lst Floor, Pan-American Life Center

601 Poydras St.

New Orleans, Louisiana, 70130

(Attorneys for T. Smith & Son, Inc. and Employers National

Insurance Company, its liability insurer)

ROBERT M. CONTOIS, JR.

Jones Walter, Waechter, Poitevent Carrere & Denegre

225 Baronne St.

New Orleans, Louisiana

(Attorneys for Arkwright-Boston Manufacturers Mutual

Insurance Company as excess liability insurer of T. Smith

& Son, Inc.)

PATRICK E. O'KEEFE

Phelps Dunbar Marks Claverie, & Sims

1300 Hibernia Bank Building

New Orleans, Louisiana, 70112

(Attorneys for Employers National Insurance Company,

Intervenor)

MAURICE c. HEBERT, JR.

Hebert, Abbott & Horack

666 Poydras Street - Suite 500

New Orleans, Louisiana, 70130

(Attorneys for T. Smith & Son, Inc., r

J.

Attorney for Petitioner

207 G. J. Kambur Building

3

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