Opinion
Civil Action No. 96-1390, Section "I"(2)
August 23, 2000.
ORDER AND REASONS
Before the court is a motion for summary judgment filed by defendant McDermott, Inc. The motion is opposed by plaintiff Jerry Miller. Miller brought this suit for personal injuries allegedly sustained from hitting his head on an overhead pipe that was part of a LACT unit (Lease Automatic Transfer Unit) on an offshore platform. Miller sued McDermott alleging that it negligently participated in and oversaw the design of the LACT unit by a now-defunct company, Systems Fabrication, Inc.
There is no dispute that McDermott was responsible for the design and engineering of the production and support facilities of the platform. McDermott denies that it had any involvement in the design, manufacture, engineering, or construction of the LACT unit, particularly the internal piping of the LACT unit that was involved in Miller's alleged injury.
McDermott brought a motion for summary judgment on this basis, and in the alternative, urges that Miller's claim be dismissed as preempted under Louisiana Revised Statute § 9:2772.
The parties agree that Louisiana law applies. See 43 U.S.C. § 1333(a)(2)(A) (disputes involving fixed structures on the Outer Continental Shelf are addressed under the laws of the adjacent state to the extent they are not inconsistent with other federal laws and regulations.)
The LACT unit is a metering device designed to measure for sales purposes the flow of liquid hydrocarbon from a producing facility into a pipeline. Although the precise physical measurements of the LACT unit are disputed, there is no genuine dispute that the unit is a substantial piece of equipment in both size and weight, weighing approximately 20,000 pounds. The LACT unit is attached to the platform by bolts and welding. The unit is incorporated into the platform's production facilities. It is designed specifically to connect with the platform's piping, electrical instrumentation, drains, vents, and conduit.
There is no genuine dispute that McDermott was involved in making sure that the design of LACT unit was such that it would properly interface with the platform connections. The exact extent, if any, of McDermott's participation in the design and/or review of the internal piping of the LACT unit is unclear, but the court finds that Miller has produced sufficient evidence to create a genuine issue of material fact as to whether McDermott's overall responsibility for the design and engineering of the production facility encompassed some review or input in the design of the LACT unit. Accordingly, the court will address whether Miller's claim against McDermott is preempted by Louisiana Revised Statute § 9:2772.
The 1978 version of La. Rev. Stat. § 9:2772 provided in relevant part:
§ 2772. Preemptive period for actions involving deficiencies in surveying, design, supervision, or construction of improvements to immovables.
A. No action, whether ex contractu, ex delicto, or otherwise, including, but not limited to, an action for failure to warn, to recover on a contract or to recover damages shall be brought against any person performing or furnishing land surveying services, . . . or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property;
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner.
There is no evidence that McDermott performed any work on the platform after April 28, 1979. Thus, if McDermott performed or furnished "the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property," then this action is preempted under the ten year period in § 9:2772.
This court has addressed the applicability of § 9:2772 on prior occasions, most recently in an Order and Reasons entered on May 13, 1999. In that order, this court focused on whether the LACT unit was a component part of an immovable as defined by Louisiana Civil Code article 466. Article 466 provides:
Things permanently attached to a building or other construction, such as plumbing, heating, cooling, electrical or other installations, are its component parts.
Things are considered permanently attached if they cannot be removed without substantial damage to themselves or to the immovable to which they are attached.
La. Civ. Code art. 466. After noting that the parties did not dispute that the platform is an immovable, this court (as well as the parties) addressed whether the LACT unit was a component part of an immovable under article 466. The court focused on the status of the LACT unit because Miller's injuries were allegedly caused by the piping of the LACT unit. This was the same analysis used by the district court in Moll v. Brown Root, Inc., No. CIV. A. 97-2671, 1999 WL 35288 *2 (E.D. La. Jan. 22, 1999) and Rochon v. Dresser Indus. Inc., Civ. A. No. 89-4648, 1991 WL 65566 (E.D. La. 1991). This court found genuine issues of material fact as to: (1) whether removal of the LACT unit would cause substantial damage to the platform or the unit itself; (2) whether the industry expectations are that the unit has a perpetual rather than a temporary connection to the platform; and (3) whether the skill required to remove the LACT unit is specialized in the industry. According to the Fifth Circuit in Coulter v. Texaco. Inc., 117 F.3d 909 (5th Cir. 1977), these are considerations relevant to analysis under article 466.
The Fifth Circuit recently issued a decision in which it changed its interpretation of Article 466. In contrast to its decisions inCoulter v. Texaco, Inc., 117 F.3d 909 (5th Cir. 1977), as well asEquibank v. IRS, 749 F.2d 1176 (5th Cir. 1985) and EPA v. NOPSI, 826 F.2d 361 (5th Cir. 1987), the Fifth Circuit found in Prytania Park Hotel, Ltd. v. General Star Indemnity Co., 179 F.3d 169 (5th Cir. 1999), that the two paragraphs of Article 466 should be considered interdependently, rather than independently. The court found that the definition of "permanently attached" in the second paragraph of article 466 defines how all items in paragraph one must be attached. See Prytania Park, 179 F.3d at 179. The court stated that "the test in every case is whether removal damage is `substantial;' it can never begin with a `societal expectations' test that disregards removal damage altogether."Id. at 183 n. 37. Societal or industry expectations are no longer relevant, except as they bear on what is considered "substantial" removal damage.
The Fifth Circuit recently addressed Moll on appeal. Moll v. Brown Root, Inc., 218 F.3d 472 (5th Cir. 2000). The court affirmed the decision of the district court to apply § 9:2772, but followed a distinctly different course of analysis. The decision makes it is unnecessary under the facts of this case and the present motion to analyze the LACT unit as a component part of an immovable under article 466.
In Moll, the plaintiff was injured by a muffler that was attached to a furnace of an Olefins II Unit. The unit itself was a seven-story structure built on a concrete foundation and permanently attached to land. The design engineer of the Olefins II Unit and the general contractor for the unit sought to be released under § 9:2772. Instead of focusing on the allegedly defective muffler, as the district court did, or even the furnace, the court focused its analysis under § 9:2772 on the Olefins II Unit in its entirety. The court apparently chose to focus on the unit in its entirety because the parties seeking the protection of § 9:2772 were the design engineer and general contractor for the entire unit. See Moll, 218 F.3d at 474 n. 4 and 475.
The court found that under Louisiana law, the Olefins unit, a man-made construction permanently attached to land, is an "improvement to an immovable." Thus, the plaintiff's claims against the designer of the unit and the general contractor for the unit were preempted. Id. at 476.
This court finds that the analysis in Moll applies to McDermott's motion. McDermott was responsible for the design and engineering of the production and support facilities for the platform. Its position is analogous to that of the design engineer and general contractor for the Olefins II Unit in Moll. According to the court in Moll, the relevant inquiry under these circumstances is whether the entire production and support facilities for the platform, rather than discreet elements, such as the LACT unit, constitute an "improvement to an immovable."
A fixed drilling platform is an immovable under Louisiana law. See La. Civ. Code art. 464; Bruyninckx v. Bratten, 554 So.2d 247 (La.App. 3rd Cir. 1989) (citing Olsen v. Shell Oil Co., 365 So.2d 1285 (La. 1978)). The court finds no genuine dispute that the production and support facilities of the platform are permanently attached to the platform. Removal of the entire production and support facilities would no doubt cause substantial damage to the production platform. See Moll at (citing La. Civ. Code article 466 defining things permanently attached as things that "cannot be removed without substantial damage to themselves or to the immovable to which they are attached." Therefore, the production and support facilities are "improvements to an immovable," § 9:2772 applies, and the claim against McDermott is preempted.
Accordingly,
IT IS ORDERED that defendant McDermott, Inc.'s Motion for Summary Judgment is GRANTED dismissing all claims of plaintiff Jerry Miller against McDermott, Inc.