United States Court of Appeals,
Fifth Circuit.
No. 92-5133
Summary Calendar.
John R. NICHOLS and Irene Nichols, et al., Plaintiffs,
v.
PETROLEUM HELICOPTERS, INC., et al., Defendants.
Jimmie John MILLER, Jr., and Jolain Miller, Plaintiffs-Appellants,
PETROLEUM HELICOPTERS, INC., et al., Defendants-Appellees.
July 14, 1993.
Appeal from the United States District Court for the Western District of Louisiana.
Before HIGGINBOTHAM, SMITH and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
In this consolidated case arising in admiralty, Miller brought suit against Petroleum
Helicopters, Inc. (PHI) for injuries allegedly sustained in a helicopter crash in the Gulf of Mexico on
July 14, 1988. Following the defendant's pre-trial stipulation of liability, the only issue at trial was
damages. The sole legal question was whether the plaintiff's wife (Jolain Miller) had a claim for loss
of consortium under general maritime law. The court held that damages for loss of consortium were
not recoverable under general marit ime law but awarded Miller $12,000 for general damages and
$2,569.13 for economic loss. The Millers appeal the court's awards, the findings of fact upon which
they were based, and its holding that loss of consortium was not cognizable under general maritime
law. This Court affirms.
I. Background
On June 4, 1988, Jimmie Miller, an employee of Forest Oil Company, was enroute with other
crew members to an oil platform in the Gulf of Mexico. The PHI helicopter they were travelling upon
crashed in Vermilion Block 255B, eighty miles from shore, killing one crew member. Six of the helicopter occupants filed personal injury actions which were consolidated; only the present one was
litigated.
Prior to trial, PHI stipulated to liability and Miller waived claims for punitive damages. The
issue before the District Court for the Western District of Louisiana was the amount of Miller's
damages for physical and emotional suffering, and for economic loss. Miller claimed the accident
caused two ruptured discs which led to anterior lumbar fusion surgery and which left him
"permanently disabled" from heavy labor.
The court's damage assessment was complicated by two factors. First, Miller had been
employed in an extremely heavy manual labor occupat ion which had caused a history of physical
problems and had led to repeated medical treatments. Second, there was evidence to show that, as
early as 1983, "hereditary arthritic changes had already begun ... and therefore were not caused by
the accident." As a result, the threshold question was whether the helicopter crash was the sole cause
of Miller's injuries or whether it merely aggravated pre-existing problems. The same causation
analysis was necessary for the emotional suffering claim as Miller had abused both drugs and alcohol
in the past.
The court concluded that the preponderance of the evidence did not show the plaintiff had
suffered a herniated disc as a result of the accident. At worst, the crash caused merely a back strain
and pain due to a pre-existing osteoarthritic condition. The court decided that the pain the plaintiff
had suffered would be adequately compensated by $9,000.
The conclusion that the accident caused a mere back strain was also dispositive of the court's
award for economic loss. The court awarded one month's lost wages because it believed Miller's long
term physician who seemed to have felt Miller could soon return to work. As the court noted, this
evaluation was substantiated by all the orthopedists and neurologists that examined Miller but one.
All these findings and awards were greatly influenced by the court's apparent questioning of Miller's
credibility as a witness.
As to Miller's claim of psychological damage, the court found that the evidence was again far
from clear as to the cause of Miller's pro blems. The court noted Miller's pre-accident substance abuse, beginning in high school and continuing while he worked for Forest Oil, and his short stay in
a detoxification program after the accident. Though causation of all Miller's mental problems was
tenuous, the court found that some depression was independently caused by the accident.
Accordingly, the court awarded $3,000.
II. Damage Findings
We begin by noting that the clearly erroneous standard of review guides our inquiry into all
findings of fact, including damage awards. See, Graham v. Milky Way Barge, Inc., 824 F.2d 376,
389 (5th Cir.1987). Such awards will not be disturbed unless "we are convinced that an error has
been committed." Id. at 389-90. See, United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct.
525, 542, 92 L.Ed. 746 (1948), reh'g den'd 333 U.S. 869, 68 S.Ct. 788, 92 L.Ed. 1147 (holding that
fact findings are reversed only where "clearly erroneous"). Furthermore, "[m]ere disagreement with
the district court's analysis of the record is insufficient, and we will not reverse ... [a finding]
"although there is evidence to support it, [unless] the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.' " Milky Way, at 388 (citing
Gypsum, 333 U.S. at 395, 68 S.Ct. at 542) (emphasis added).
Miller argues, essentially, that the court twisted Miller's statements to the doctors out of
context or deliberately ignored the evidence. This charge is evidenced by Miller's dissection and
refutation in his brief of every single finding by the district court. Perhaps, the court m ay have
mislabelled the crash a "forced landing" and misstated the nature of Miller's injuries in a prior car
accident. In our view, however, the evidence as a who le supports the court's findings and a few
factual errors or omissions does not change that.
With evidence to support the court's findings, we may only reverse if we are left with a
"definite and firm conviction" of error. In the present case, the district court concluded that Miller
was not credible in any of his assertions, whether to the court or to the doctors. Miller implies by his
laundry list of factual discrepancies or "omissions" that the court would not have reached this
credibility assessment but for its pervasive errors in findings. As we have said before, "this Court
should be wary of attempting to second guess the district court, which has the decided advantage of first hand experience concerning the testimony and evidence presented at trial." Milky Way, at 388.
Following this sound advice and upon review of the record, this Court cannot say that it has a
"definite and firm conviction" that error has been committed. The district court was under no
obligation to accept Miller's justifications and explanations once it concluded that Miller was not
credible. The evidence does not show that either this assessment or the fact findings was clearly
erroneous. As a result, the damage awards which were predicated upon these findings cannot be an
abuse of discretion.
III. Loss of Consortium
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United States Court of Appeals,
Fifth Circuit.
No. 92-5133
Summary Calendar.
John R. NICHOLS and Irene Nichols, et al., Plaintiffs,
v.
PETROLEUM HELICOPTERS, INC., et al., Defendants.
Jimmie John MILLER, Jr., and Jolain Miller, Plaintiffs-Appellants,
PETROLEUM HELICOPTERS, INC., et al., Defendants-Appellees.
July 14, 1993.
Appeal from the United States District Court for the Western District of Louisiana.
Before HIGGINBOTHAM, SMITH and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
In this consolidated case arising in admiralty, Miller brought suit against Petroleum
Helicopters, Inc. (PHI) for injuries allegedly sustained in a helicopter crash in the Gulf of Mexico on
July 14, 1988. Following the defendant's pre-trial stipulation of liability, the only issue at trial was
damages. The sole legal question was whether the plaintiff's wife (Jolain Miller) had a claim for loss
of consortium under general maritime law. The court held that damages for loss of consortium were
not recoverable under general marit ime law but awarded Miller $12,000 for general damages and
$2,569.13 for economic loss. The Millers appeal the court's awards, the findings of fact upon which
they were based, and its holding that loss of consortium was not cognizable under general maritime
law. This Court affirms.
I. Background
On June 4, 1988, Jimmie Miller, an employee of Forest Oil Company, was enroute with other
crew members to an oil platform in the Gulf of Mexico. The PHI helicopter they were travelling upon
crashed in Vermilion Block 255B, eighty miles from shore, killing one crew member. Six of the helicopter occupants filed personal injury actions which were consolidated; only the present one was
litigated.
Prior to trial, PHI stipulated to liability and Miller waived claims for punitive damages. The
issue before the District Court for the Western District of Louisiana was the amount of Miller's
damages for physical and emotional suffering, and for economic loss. Miller claimed the accident
caused two ruptured discs which led to anterior lumbar fusion surgery and which left him
"permanently disabled" from heavy labor.
The court's damage assessment was complicated by two factors. First, Miller had been
employed in an extremely heavy manual labor occupat ion which had caused a history of physical
problems and had led to repeated medical treatments. Second, there was evidence to show that, as
early as 1983, "hereditary arthritic changes had already begun ... and therefore were not caused by
the accident." As a result, the threshold question was whether the helicopter crash was the sole cause
of Miller's injuries or whether it merely aggravated pre-existing problems. The same causation
analysis was necessary for the emotional suffering claim as Miller had abused both drugs and alcohol
in the past.
The court concluded that the preponderance of the evidence did not show the plaintiff had
suffered a herniated disc as a result of the accident. At worst, the crash caused merely a back strain
and pain due to a pre-existing osteoarthritic condition. The court decided that the pain the plaintiff
had suffered would be adequately compensated by $9,000.
The conclusion that the accident caused a mere back strain was also dispositive of the court's
award for economic loss. The court awarded one month's lost wages because it believed Miller's long
term physician who seemed to have felt Miller could soon return to work. As the court noted, this
evaluation was substantiated by all the orthopedists and neurologists that examined Miller but one.
All these findings and awards were greatly influenced by the court's apparent questioning of Miller's
credibility as a witness.
As to Miller's claim of psychological damage, the court found that the evidence was again far
from clear as to the cause of Miller's pro blems. The court noted Miller's pre-accident substance abuse, beginning in high school and continuing while he worked for Forest Oil, and his short stay in
a detoxification program after the accident. Though causation of all Miller's mental problems was
tenuous, the court found that some depression was independently caused by the accident.
Accordingly, the court awarded $3,000.
II. Damage Findings
We begin by noting that the clearly erroneous standard of review guides our inquiry into all
findings of fact, including damage awards. See, Graham v. Milky Way Barge, Inc., 824 F.2d 376,
389 (5th Cir.1987). Such awards will not be disturbed unless "we are convinced that an error has
been committed." Id. at 389-90. See, United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct.
525, 542, 92 L.Ed. 746 (1948), reh'g den'd 333 U.S. 869, 68 S.Ct. 788, 92 L.Ed. 1147 (holding that
fact findings are reversed only where "clearly erroneous"). Furthermore, "[m]ere disagreement with
the district court's analysis of the record is insufficient, and we will not reverse ... [a finding]
"although there is evidence to support it, [unless] the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.' " Milky Way, at 388 (citing
Gypsum, 333 U.S. at 395, 68 S.Ct. at 542) (emphasis added).
Miller argues, essentially, that the court twisted Miller's statements to the doctors out of
context or deliberately ignored the evidence. This charge is evidenced by Miller's dissection and
refutation in his brief of every single finding by the district court. Perhaps, the court m ay have
mislabelled the crash a "forced landing" and misstated the nature of Miller's injuries in a prior car
accident. In our view, however, the evidence as a who le supports the court's findings and a few
factual errors or omissions does not change that.
With evidence to support the court's findings, we may only reverse if we are left with a
"definite and firm conviction" of error. In the present case, the district court concluded that Miller
was not credible in any of his assertions, whether to the court or to the doctors. Miller implies by his
laundry list of factual discrepancies or "omissions" that the court would not have reached this
credibility assessment but for its pervasive errors in findings. As we have said before, "this Court
should be wary of attempting to second guess the district court, which has the decided advantage of first hand experience concerning the testimony and evidence presented at trial." Milky Way, at 388.
Following this sound advice and upon review of the record, this Court cannot say that it has a
"definite and firm conviction" that error has been committed. The district court was under no
obligation to accept Miller's justifications and explanations once it concluded that Miller was not
credible. The evidence does not show that either this assessment or the fact findings was clearly
erroneous. As a result, the damage awards which were predicated upon these findings cannot be an
abuse of discretion.
III. Loss of Consortium
The recoverability of damages for loss of consortium is a legal question that is reviewable de
novo. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982);
Michel v. Total Transp., Inc., 957 F.2d 186, 191 (5th Cir.1992).
Miller claims that the district court erred in finding general maritime law precluded a claim
for loss of consortium. Miller recognizes that Miles v. Apex Marine Corp., 498 U.S. 19, 32-33, 111
S.Ct. 317, 326, 112 L.Ed.2d 275 (1990), prevents such a claim in a seaman's wrongful death suit and
that this rule has been extended by our Court to apply to seamen's personal injury suits also.1 He
argues, however, that in a case involving a non-seaman, or longshoreman such as himself, recovery
for loss of consortium may still be had under Sea-Land Services, Inc. v. Gaudet.2
Assuming that Miller is a longshoreman, his reading of Gaudet omits one crucial point. After
Miles, longshoremen can recover for loss of consortium only if injured in territorial waters. The
Supreme Court declared that the "holding in Gaudet applies only in territorial waters, and it applies
only to longshoremen." Miles, 498 U.S. at 31, 111 S.Ct. at 325 (emphasis added). This Court has
concurred and found that Miles limited Gaudet to its narrow facts. Murray, 958 F.2d at 130, ("Miles
specifically limited Gaudet ... to its facts"). It is uncontested in this case that the injuries of which
1 See, Michel v. Total Transportation, Inc., 957 F.2d 186, 191 (5th Cir.1992); and Murray v. Anthony J. Bertucci Construction Co., Inc., 958 F.2d 127 (5th Cir.1992). 2 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). Gaudet involved the death of a longshoreman in territorial waters; and the Supreme Court held that the decedent's wife could recover for loss of consortium. Miller complains were the result of a casualty occurring some 80 miles off the Louisiana coast.
Miller's claim fails to satisfy one of the two equally important requirements of Gaudet as limited by
Miles;3 and it must, therefore, fail.
We therefore find that the district court was not clearly erroneous in its findings on damages
or in its decision to dismiss the loss of consortium claim. We also find no abuse of discretion in the
damage awards.
We AFFIRM.
3 The helicopter crash occurred outside territorial waters in the Gulf of Mexico. In their brief, appellants themselves describe the location of the crash as "in the Gulf of Mexico ... in Vermilion Block 255B, approximately eighty (80) miles from shore."