Summary
holding that causes of action arising on the Outer Continental Shelf do not meet the situs requirement of Louisiana's direct action statute
Summary of this case from Menard v. Gibson Applied Tech. & Eng'g, Inc.Opinion
Civil Action No. 99-3754.
April 3, 2001
ORDER
Before the Court is a Motion for Summary Judgment filed by Commercial Union Assurance Company and defendant Steamship Mutual Underwriting Association, Ltd. (doc. 122). The Court has considered the pleadings, memoranda and relevant law and finds for the reasons that follow that the defendants motion shall be granted.
Steamship Mutual Underwriting Association, Ltd. is the insurer of ENSCO Offshore Company. By Minute Entry entered 3/7/01, this Court granted ENSCO's motion for summary judgment, dismissing all claims against it. See Doc. 193. Therefore, the current motion is moot with respect to Steamship Mutual Underwriting Association, Ltd.
The facts of this case have been set forth in several prior orders of this Court, and do not need to be regurgitated here. The relevant facts for purposes of this motion are: (1) plaintiff was allegedly injured while working on a fixed platform situated on the Outer Continental Shelf off the shore of Louisiana; and (2) neither the Commercial Union Policy or the Steamship Mutual Policy was issued or delivered in Louisiana. The defendants have moved for summary judgement arguing that the insurers cannot be sued directly because the requirements of the Louisiana Direct Action Statute, found at La.R.S. 22: 655, have not been satisfied. Plaintiff offers an abbreviated opposition, claiming that a decision of this Court supports the proposition that the Direct Action Statute should apply in this case. With this brief background in mind, the Court turns to the relevant legal standards.
Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing this motion, the court views all facts in the light most favorable to the non-movant. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986). If, taken as a whole, the record could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial." Id. The Court now turns to the applicable substantive law.
The Louisiana Direct Action Statute, La.R.S. 22:655, permits an action against an insurer of a tortfeasor if the plaintiff can establish that (1) the accident occurred in Louisiana, or (2) the policy was written in Louisiana, or (3) the policy was delivered in Louisiana. Grubbs v. Gulf International Marine Inc., 13 F.3d 168, 170 (5th Cir. 1994) (citations omitted); Temple v. JL Marine. Inc., 1997 WL 204921 (E.D. La. 4/24/97);Esteve v. Allstate Insurance Company, 351 So.2d 117 (La. 1977).
In this case, it is undisputed that the policy was neither written or delivered in Louisiana. Thus, the question becomes whether or not the locus of plaintiffs accident is considered to be within Louisiana. Plaintiff cites this Court's decision in Moody v. Callon Petroleum Operating Company, 37 F. Supp.2d 805 (E.D. La. 1999) as supporting the idea that plaintiffs injury on the Outer Continental Shelf should be considered as occurring in Louisiana for purposes of the Direct Action Statute. However, plaintiff misreads Moody. The issue before the Court inMoody was whether the Direct Action Statute could apply to a cause of action arising on the Outer Continental Shelf. This Court held that, in cases where there was a complete absence of federal substantive law, a wholesale import of Louisiana law should include the remedies available under the Direct Action Statute. Indeed, although the accident in Moody occurred "off the coast of Louisiana", id. at 807, this Court granted leave to amend to "include the necessary factual allegations to properly invoke the Louisiana Direct Action Statute", i.e. that the policy was either written or delivered in Louisiana. Id. at 814-15. Therefore, as far as plaintiffs case is concerned, Moody is unfavorable as it states that an accident occurring off the coast of Louisiana is insufficient to invoke the Direct Action Statute when there is no allegation that the policy was either written or delivered in Louisiana.
Indeed, the text of both OCSLA and the Direct Action Statute indicate that plaintiffs accident did not occur in Louisiana and that the Direct Action Statute should not apply. Federal jurisdiction under OCSLA extends to the subsoil and seabed of the Outer Continental Shelf, which in pertinent part defined as those submerged lands "outside the area of lands beneath navigable waters." 42. U.S.C. § 1331(a). "Lands beneath navigable waters", in turn, is defined as those lands within the boundaries of the respective states. 42 U.S.C. § 1301(a). Since plaintiffs accident occurred on the Outer Continental Shelf then, it could not have occurred within the boundaries of the state. Moreover, the venue provision of the Direct Action Statute, section B(1), provides that venue is proper "in the parish in which the accident or injury occurred", La.R.S. 22:655(B)(1), which clearly contemplates the accident occurring within a parish to invoke the statute. In this case, plaintiffs case did not occur in a parish, therefore the accident did not occur in Louisiana for purposes of the Direct Action Statute. See also 7 Couch on Insurance § 104.57 (3d ed. 1996) (right to maintain a direct action under the statute of a given state exists only when a cause of action arose in that state, citing Guess v. Read, 290 F.2d 622 (5th Cir. 1961)).
In Guess v. Read, 290 F.2d 622 (5th Cir. 1961), plaintiff was killed in a crash on the Outer Continental Shelf about nine miles south of Grand Isle, and his heirs sought relief under the Direct Action Statute, arguing that the accident occurred in Louisiana for purposes of R.S. 22:655. The Fifth Circuit rejected the argument stating that the Direct Action Statute contemplates "that the accident or injury . . . occur within a Parish of the State." Id. at 625. Since the Outer Continental Shelf was not in the State of Louisiana, the Court of Appeals found that "no claim is asserted upon which relief can be granted." Id at 624. See e.g., Signal Oil Gas Company v. The Barge W-701, 654 F.2d 1164 (5th Cir. 1981) (no right of direct action when accident occurred in the Gulf of Mexico, beyond the territorial boundaries of Louisiana, and the policy was neither written or delivered in Louisiana); McGlynn v. Salen Protexa Drilling Co., 1988 WI 40235 (E.D. La. 4/25/88) (when accident occurs in the Gulf of Mexico beyond the territorial boundaries of Louisiana, and policy was neither written or delivered in Lousiana, direct action statute does not apply).
In Harper v. Falrig Offshore, 776 So.2d 620 (La.App. 3d Cir. 12/20/00), the plaintiff worked on a jack up rig, more than three miles off the coast and was injured when he fell off a step ladder attempting to install a rain shield. Id. at 623. The court of appeal held that it was error for the trial court not to dismiss plaintiffs direct action claim against an insurer based on no right of action. Id. at 633. The third circuit panel reasoned that
The plain reading of the [Direct Action] statute establishes that the words "or injury" are meant to be the injury arising out of the "accident" that "occurred within the state of Louisiana. In this case, the "injury" did not occur in Louisiana. It occurred in international sea beyond the three mile limit of Louisiana's territorial sea.Id. at 633-34. Thus, when the accident occurred outside Louisiana's boundaries, plaintiff has no direct action rights against the insurers.
It is clear and undisputed that the Direct Action Statute is not satisfied here. The accident did not occur within the State of Louisiana, and the policy was neither written or delivered in the State. Accordingly,
IT IS ORDERED that the defendants' motion for summary judgment is GRANTED.