Hebert v. Diamond M Co.

385 So. 2d 410, 1980 La. App. LEXIS 3937
CourtLouisiana Court of Appeal
DecidedMay 5, 1980
Docket13223
StatusPublished
Cited by19 cases

This text of 385 So. 2d 410 (Hebert v. Diamond M Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hebert v. Diamond M Co., 385 So. 2d 410, 1980 La. App. LEXIS 3937 (La. Ct. App. 1980).

Opinion

385 So.2d 410 (1980)

Everette P. HEBERT
v.
DIAMOND M COMPANY et al.

No. 13223.

Court of Appeal of Louisiana, First Circuit.

May 5, 1980.
Rehearing Denied July 7, 1980.

*411 Joseph L. Waitz, Houma, for plaintiff and appellee.

Raymond Morgan Allen, Lafayette, for defendant and appellant Diamond M Co.

John J. Weigel, New Orleans, for third-party defendant and appellant F.M.C. Corp.

J. Mark Graham, Houma, for intervenor Aetna Cas. & Sur. Co.

Before COVINGTON, LOTTINGER and COLE, JJ.

COVINGTON, Judge.

This is an appeal by Diamond M Company, defendant, from a judgment in favor of Everette P. Hebert, plaintiff. Plaintiff has answered the appeal, asking for an increase in certain awards; i. e., future medical expenses and loss of future earnings. Intervenor, Aetna Casualty & Surety Company, has also answered the appeal, seeking reimbursement from Diamond M Company for additional medical expenses, maintenance or cure which intervenor may be required to pay to the plaintiff.

This suit arises out of a simple state of facts. Plaintiff, Everette P. Hebert, while in the employ of Dowell, Inc., was seriously injured on November 30, 1977, when he was dropped about 15 feet onto the steel deck of the crew boat from a personnel carrier which was being lifted by a crane aboard a tender barge. At the time of the accident, plaintiff was aboard the M/V MASTER JODY, a crew boat, and was being lifted in a personnel carrier suspended from defendant's crane located aboard the Diamond M tender barge, S-25, which served as an Exxon fixed platform in the Gulf of Mexico off the coast of the State of Louisiana.

As a result of the accident and resulting injuries, on June 30, 1978, plaintiff sued Diamond M Company[1] in personam in state court pursuant to the "Savings to Suitors" *412 clause of the Federal Constitution and 28 U.S.C.A. § 1333, alleging a cause of action under General Maritime Law, based on negligence and unseaworthiness.

On August 30, 1978, Diamond M Company filed an answer in the nature of a general denial, and demanded a trial by jury of all actions and causes of action involved herein.

On October 10, 1978, a petition of intervention was filed by Aetna Casualty & Surety Company, the workmen's compensation insurer of Dowell, Inc., seeking recovery of benefits and medical expenses paid to plaintiff.

On October 18, 1978, defendant brought F.M.C. Corporation, as manufacturer, distributor and seller of the Diamond M crane involved, into the suit by a third party demand for indemnification and/or contribution.[2]

The trial court denied defendant's request for jury trial, and on October 13, 1978, defendant applied for writs to this Court. On October 24, 1978, an alternative writ of mandamus was issued by this Court, commanding the trial judge to grant a trial by jury or to show cause why the writ should not be made peremptory. In due course this Court made the writ peremptory, holding that "since trial by jury is a remedy recognized in this state, this remedy is available to a litigant in a maritime or admiralty claim the same as it would be to any other civil litigant before our courts." Hebert v. Diamond M Company, 367 So.2d 1210 (La.App. 1 Cir. 1978).

On November 15, 1978, plaintiff filed a supplemental petition, alleging alternatively the applicability of the Jones Act, 46 U.S.C.A. § 688, by virtue of his employment by defendant as a seaman permanently attached to and working aboard the Diamond M tender on which the alleged accident occurred. Moreover, plaintiff averred that as a seaman under the Jones Act, "petitioner elects to have his claims tried by the court rather than by a jury."

On December 28, 1978, the clerk's office mailed notice of the trial by jury set for January 29, 1979.

On December 29, 1978, the plaintiff filed a rule to show cause why the jury trial should not be stricken on the ground that as a Jones Act seaman, he was entitled to elect and had elected to have his case tried by the Court rather than by a jury. On January 4, 1979, defendant filed a motion for partial summary judgment, seeking to have the Jones Act claim dismissed. Thereafter, plaintiff moved for partial summary judgment to have himself declared a Jones Act seaman as to Diamond M.

On January 10, 1979, the trial court denied the rule to strike the jury, and took the motions for partial summary judgment under advisement.[3]

Prior to trial, stipulations were made regarding the intervenor's claim whereby the parties recognized Aetna's right to reimbursement of amounts paid to plaintiff for maintenance in the sum of $2,984.00, and for medical expenses in the sum of $10,613.40, which sums were to be added to any award made to plaintiff and paid directly to Aetna.

The matter then came on for trial before the jury and the trial judge. During the trial, Diamond M admitted liability and admitted that plaintiff was a seaman.

After the case was tried and submitted, the jury rendered a verdict in plaintiff's favor against defendant in the sum of $470,000.00 for loss of future earnings, $104,000.00 for pain, suffering, mental anguish and disability, and $76,000.00 for future medical expenses, or a total amount of $650,000.00. The jury also returned a general verdict in favor of the plaintiff in the same amount.

On March 8, 1979, the trial court rendered its written reasons for judgment and, on its *413 own motion, rendered and signed judgment in favor of Hebert against Diamond M in the sum of One Million, Forty-six Thousand Dollars ($1,046,000.00), together with legal interest from date of judicial demand and costs. Judgment was also entered in favor of intervenor, Aetna, in accordance with the stipulations in the suit. Except for questioning the date from which the interest should be awarded, the post-judgment rules and motions raised no new issues. The motion for new trial by defendant, and a motion for additur by plaintiff, were denied. This appeal and the answers thereto followed.

On this appeal, the plaintiff has formally withdrawn his claim under the Jones Act and seeks recovery only under the general maritime law; it is thus not necessary for us to decide whether the trial judge erred in electing to try the case himself as a Jones Act claim rather than letting the jury decide it, or whether the jury correctly decided that Everette P. Hebert was a "borrowed servant" of Diamond M Company within the meaning of Jones Act coverage at the time of the accident. Hence, the case is before us as though it is an appeal from a judgment on the jury verdict in favor of the plaintiff in the amount of $650,000.00.

We turn to the assessment of damages as made by the jury. The record shows that plaintiff Hebert was dropped a distance of about 15 feet onto the steel deck of the crew boat. He sustained injuries to his back, his left arm (with contusion to the ulnar nerve) and his left ankle (with three broken bones). Due to the accident, plaintiff developed serious mental disorders. He received only superficial treatment at the scene and was in great pain, at least until he could be taken to the hospital. He has been hospitalized on three occasions: first, for surgery to his ankle; second, for a myelogram for his back; third, for pelvic traction for his back. He has not returned to his former work or any gainful employment.

A metal pin was inserted during ankle surgery. Hebert was in full leg cast for six months and a partial cast for a period of time thereafter. Dr.

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Bluebook (online)
385 So. 2d 410, 1980 La. App. LEXIS 3937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-diamond-m-co-lactapp-1980.