Opinion
No. 99-3361 c/w 99-3605
August 23, 2000
MINUTE ENTRY
ORDER AND REASONS
Before the Court are three motions for summary judgment and a motion to continue trial. For the following reasons, Defendant McMoran Oil and Gas, L.L.C.'s Motion for Summary Judgment and Defendants' Motion to Continue Trial are GRANTED, and Defendant Parker Drilling Offshore, L.L.C.'s and Defendant Universal Services' Motions for Summary Judgment are DENIED.
A. BACKGROUND
Plaintiff Steven Mang alleges that he was injured when he rolled out of a third tier bunk in the living quarters of an offshore drilling rig. Defendants Parker Drilling Offshore, L.L.C. ("Parker"), Universal Services ("Universal") and McMoran Oil and Gas, L.L.C. ("McMoran") each move for summary judgment.
At all relevant times, McMoran owned production platform WC 616A located on the outer Continental Shelf off the shore of Louisiana. McMoran contracted with Parker to perform work over operations, and Parker skidded Rig 4lE, along with portable living quarters, which it owned, on top of WC 616A's production deck. Parker contracted with Universal to provide catering services.
McMoran ordered equipment from Pump Equipment, Mang's employer, and requested a mechanic to help install it on WC 616A. Pump sent Mang to the McMoran platform on November 3, 1998, where he stayed for the next two days because of inclement weather. A Universal employee showed Mang where he would be sleeping, a third tier bunk in Parker's living quarters, which, apparently, was not conducive to Mang's sleep. During the first night, Mang states that he woke up twice and hit his head on an overhead duct. During the second night, Mang states that he again woke up intermittently. Then, he fell out of bed. Mang alleges in his Complaint that "[e]early on the morning of November 5, 1998, an employee of [Parker] and/or Universal came into the sleeping quarters where [he] was sleeping and yelled `wake up' and simultaneously flipped on the lights." Complaint XX. "The unnecessary yelling with the lighted condition startled Steven Mang and caused him to roll over suddenly for fear for his safety whereupon he fell to the floor striking his head, neck, back, legs and arms sustaining serious and permanent physical injury." Id. XXI.
Following his unlucky roll, Mang filed suit in federal and state courts against Parker, Universal and McMoran, asserting liability under Louisiana Civil Code articles 2315 and 2317. The defendants removed the state suit, which was consolidated with the federal action, and now move for summary judgment.
B. JURISDICTION AND APPLICABLE LAW
Because the alleged accident occurred on an offshore platform located on the outer Continental Shelf, the appropriate basis of jurisdiction is the Outer Continental Shelf Lands Act (OCSLA). See Bartholomew v. CNG Producing Co., 832 F.2d 326, 328 (5th Cir. 1987). The law to be applied in actions governed by OCSLA is "federal law, supplemented by state law of the adjacent state" Id. (quoting Rodrique v. Aetna Casualty Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 1837, 23 L.Ed.2d 360 (1969)). In the instant case the Court must apply federal law, supplemented by Louisiana law.
C. MOTIONS FOR SUMMARY JUDGMENT
1. Standard of Review
Summary judgment is proper if "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 judgment as a matter of law." FED. R. Civ.P. 56(c). The party seeking summary judgment bears the burden of demonstrating an absence of evidence to support the non-movant's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Where the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). To oppose a motion for summary judgment, the non-movant must set forth specific facts to establish a genuine issue of material fact, and cannot merely rest on allegations and denials. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2552. A genuine issue of fact exists where the evidence is such that a reasonable fact finder could return a verdict for the non-moving party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Factual controversies are to be resolved in favor of the nonmoving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). See also Superior Merchandise Co.. Inc. v. M.G.I. Wholesale. Inc., 52 U.S.P.Q.2d 1935 (E.D. La. 1999).
2. Independent Contractor Defense
Both Parker and McMoran rely on the independent contractor rule. Under that rule, a principal is not liable for the activities of an independent contractor committed in the course of performing its duties under the contract. See Bartholomew, 832 F.2d at 329. "However, two notable exceptions exist to this general rule. First, a principal may not escape liability arising out of ultrahazardous activities which are contracted out to an independent contractor. Second, . . . a principal is liable for the acts of an independent contractor if he exercises operational control over those acts or expressly or impliedly authorizes an unsafe practice."Id. (citing Fifth Circuit and Louisiana precedent).
It is undisputed that McMoran owned the platform and that Parker owned and controlled the rig and living quarters. However, Plaintiff has presented no evidence that McMoran exercised operational control over the living quarters or that McMoran authorized the allegedly unsafe practice of utilizing triple tier bunks. All of the evidence before the Court indicates that Parker "acted in the capacity of a true independent contractor pursuant to the terms of the contractual arrangement." Boutwell v. Chevron U.S.A.. Inc., 864 F.2d 406, 409 (5th Cir. 1989). Accordingly, McMoran's Motion for Summary Judgment is GRANTED. SeeAinsworth v. Shell Offshore. Inc., 829 F.2d 548 (5th Cir. 1987) (affirming summary judgment in favor of platform owner on plaintiffs article 2315 and 2317 claims because owner did not have custody over the drilling rig).
The McMoran-Parker contract establishes an independent contractor relationship. Paragraph 106 states that Parker "shall be an independent contractor in performing its obligations [under the contract.] The presence of and the observation and inspection by Operator's [McMoran's] representatives at The Drilling Site shall not relieve Contractor [Parker] from Contractor's obligations and responsibilities." McMoran submitted an affidavit from Todd Cantril who stated that McMoran had no direct employees on Rig 41E or Platform WC616A and that McMoran did not exercise control over or give direction to Parker.
In his Memorandum in Opposition to Summary Judgments by Parker and McMoran, Mang focuses exclusively on Parker's alleged fault and does not even hint at how McMoran may have been negligent. See, e.g., p. 5 ("In the present case, the conduct in question is that Parker Drilling provided the plaintiff with a third tier bunk without a railing in place.") and p. 8 ("The defendant [Parker] admitted to owning the bunk room. The defendant [Parker] admitted to bringing it to the location for the purpose of performing a job it had contracted with McMoran to perform.").
Unlike McMoran, Parker cannot rely on the independent contractor defense. Just because Pump and Parker were both McMoran's independent contractors does not mean that Parker may cloak itself in McMoran's immunity. Parker admits that it controlled the living quarters and it is therefore potentially responsible for any negligence associated with it.
3. Were Parker and Universal Negligent?
Parker and Universal both argue that they cannot be found negligent as a matter of law. Parker stresses the absence of Coast Guard regulations regarding bunk beds on oil platforms and brings to the Court's attentionKennedy v. Mesa. Inc., 1998 WL 182670 (W.D. La. March 16, 1998), wherein the district court granted summary judgment against an employee who fell out of a bunk bed offshore. Universal notes that it was not contractually obligated to provide slumberers with bed rails. And both Parker and Universal argue that Mang's injuries were his own fault.
The Court finds none of these arguments dispositive. The mere absence of governmental regulation does not innoculate a particular practice from being found negligent, nor does the Kennedy opinion address whether requiring an individual to sleep in a railless, third tier bunk could be negligent. Whatever the contractual obligations of Universal, it is uncontested that a Universal employee told Mang where to sleep without telling him that there were bed rails of which he could avail himself. And all of Defendants' arguments as to whether Mang was responsible for his own tumble are best assessed at trial, not on summary judgment. Therefore, the Court DENIES Parker's and Universal's Motions for Summary Judgment.
D. MOTION TO CONTINUE TRIAL
Defendants jointly move to continue the trial and or extend the expert deadlines on the grounds that Mang is scheduled to undergo surgery prior to trial. Defendants argue that they will need time to conduct a vocational rehabilitation evaluation following Mang's surgery and to tender an economist's report regarding Mang's lost wages. Defendants represent that Mang does not object to extending the deadline for expert reports. Although this implies that Mang does object to continuing the trial, Mang filed no opposition to Defendants' Motion. In light of the Defendants' reasons for a continuance and the Plaintiff's failure to file an opposition, the Court GRANTS Defendants' Motion to Continue Trial.
E. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant McMoran Oil and Gas, L.L.C.'s Motion for Summary Judgment is GRANTED, Defendant Parker Drilling Offshore, L.L.C.'s Motion for Summary Judgment is DENIED and Defendant Universal Services' Motion for Summary Judgment is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion to Continue Trial are GRANTED. A telephone conference with the Courtroom Deputy to pick new dates for the pretrial conference and trial will be held on September 8, 2000 at 11:00 A.M.