Spitzfaden v. Daigle Welding Service, Inc.

607 So. 2d 951, 1992 La. App. LEXIS 3232, 1992 WL 310438
CourtLouisiana Court of Appeal
DecidedOctober 29, 1992
DocketNo. 91-CA-2659
StatusPublished
Cited by2 cases

This text of 607 So. 2d 951 (Spitzfaden v. Daigle Welding Service, Inc.) 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
Spitzfaden v. Daigle Welding Service, Inc., 607 So. 2d 951, 1992 La. App. LEXIS 3232, 1992 WL 310438 (La. Ct. App. 1992).

Opinion

KLEES, Judge.

Fidelity & Casualty Company of New York [hereinafter “Fidelity”] appeals the trial court’s judgment in favor of plaintiff, Gerald A. Spitzfaden.

On July 20, 1987, plaintiff filed suit against Daigle Welding Service, Inc. [hereinafter “Daigle”] and Chevron, U.S.A., Inc. [hereinafter “Chevron”] seeking damages for injuries caused by his slip and fall on a vessel. In his initial petition, plaintiff asserted that on January 11, 1987, he was employed by Daigle and was injured while working on board a barge owned and operated by Daigle and/or Chevron. Plaintiff alleged both a Jones Act claim and the general maritime law claim of unseaworthiness of the vessel, and he sought maintenance and cure. On January 8, 1988, he filed an amended petition adding as defendants Fidelity and Lloyds of London, both alleged to be insurers of Daigle. Chevron then asserted a cross claim for indemnity against Daigle, Fidelity and Lloyds, and also filed a third-party demand against the Institute of London Underwriters, alleged to be an additional insurer of Daigle.

in December of 1988, prior to trial, plaintiff settled with Fidelity, dismissing with prejudice all claims covered by the primary employers liability clause of Fidelity’s policy issued to Daigle. Fidelity paid its policy limits of $25,000 under this clause. Plaintiff reserved his rights against all other parties, their insurers, and specifically against insurers of Daigle providing maritime employers liability coverage in excess of $25,000. In July of 1989, plaintiff settled his Jones Act claim with Chevron, Dai-gle and their respective insurers in the amount of $150,000, specifically reserving any claim plaintiff might have against Chevron under section 905(b) of the Longshoremen and Harbor Workers’ Compensation Act [hereinafter “LHWCA”], but only insofar as such claim may be insured under the policy issued to Daigle by Fidelity. Shortly thereafter, on August 3, 1989, plaintiff filed a second amended petition asserting a LHWCA claim against Chevron and Fidelity, alleging that Chevron qualified as plaintiff’s alternate employer under a special endorsement of the maritime employers liability section of Fidelity’s policy issued to Daigle. Fidelity filed an exception of res judicata to this claim.

The liability and damages portions of plaintiff’s claim were bifurcated. The liability issues were tried before the district judge on November 2,1991. At the conclusion of the trial, the district court rendered judgment: (1) overruling Fidelity’s exception of res judicata; (2) holding that plaintiff was not a Jones Act seaman, but was covered by the LHWCA; (3) holding that Chevron was the alternate employer of plaintiff; (4) finding that Fidelity had policy limits of $500,000 on plaintiff’s claim and was entitled to a credit of $25,000 [953]*953representing the amount already paid to plaintiff; (5) finding that Chevron was not entitled to a credit of the amount it paid in settlement of plaintiff’s Jones Act claim; and finally, (6) holding that Fidelity had a duty to defend Chevron from the date of filing of plaintiffs original suit.

Fidelity has appealed the trial court’s judgment. On appeal, Fidelity argues that the trial judge erred in seven respects: (1) in finding that Chevron was the alternate employer of plaintiff; (2) in finding that plaintiff was not a seaman, and that therefore Fidelity’s policy limits were $500,000 rather than $25,000; (3) in finding that plaintiff's earlier settlement with Fidelity does not preclude this claim on the basis of res judicata; (4) in placing upon Fidelity the duty to defend Chevron from the date of the original petition, rather than from the date of the second amended petition which alleged the LHWCA claim; (5) in finding that Chevron was negligent in creating the hazard which caused plaintiff’s fall; (6) in holding Fidelity and Chevron solidarily liable; and (7) in failing to hold that plaintiff’s claim was precluded by the Louisiana Oilfield Indemnity Act.

After reviewing the record, we conclude that the trial court erred by finding Chevron to be the alternate employer of plaintiff and by requiring Fidelity to defend Chevron from the date of plaintiff’s original petition.

The alternate employer endorsement, which the trial court interpreted states that Fidelity’s coverage applies to bodily injury to Daigle employees “while in the course of special or temporary employment by the alternate employer.” These terms are not defined in the policy, however. Two insurance experts testified as to the meaning of the terms. Robert Breeden, Chevron’s expert, stated that the endorsement is generally interpreted broadly because the intent is to provide protection to the named party (in this case, Chevron) with respect to any liability it may have for injury to an employee of its contractor. Mr. Breeden also stated that a “borrowed servant” would clearly be covered by the alternate employer endorsement. Mr. Breeden had not formed an opinion as to whether Chevron was the alternate employer of the plaintiff in this case, however. Mr. J. William She-rar, Fidelity’s expert witness, stated that the phrase “special or temporary employment” refers to a special assignment. He gave the example of a small oil company that might need for a special project an engineer who knew something about ports. The small oil company might then arrange to borrow such an engineer from Texaco for six weeks. During this time, the small oil company would specifically pay Texaco for the man’s package, but the man would report to the small oil company and work under the direction of its staff. In Mr. Sherar’s opinion, Chevron did not qualify as the plaintiff’s alternate employer in the instant case because Daigle paid the plaintiff, directed him in his work, filed his W-2 forms, and paid his worker’s compensation.

The facts concerning plaintiff’s employment are not in dispute. Plaintiff was a roustabout who worked in a Daigle crew with two other roustabouts and a tool pusher or foreman. At the time of the accident, plaintiff’s crew had been doing general maintenance work for Chevron exclusively for about nine months. The contract between Chevron and Daigle stated that Dai-gle agreed to perform the work as an independent contractor and not as an employee of Chevron. The testimony established that plaintiff got all of his orders directly from the Daigle tool pusher, who was the crew foreman. The foreman would attend a meeting each week day to get general orders from Chevron personnel, with the Friday morning instructions sufficing for the entire weekend. The work barge that was used to transport the Daigle crew from job to job was operated by the crew itself. The barge was owned by Chevron and outfitted with Chevron tools, although Daigle provided some smaller tools. A Chevron supervisor would go on board the barge only if there was a problem, or occasionally to check the work. No Chevron supervisor could recall ever having had any personal contact with the plaintiff. If the Chevron supervisor was dissatisfied with the work of a roustabout, he would contact Daigle, and the roustabout was usually re[954]*954placed. Chevron paid Daigle for the exact man hours worked, and Daigle paid in turn the plaintiff.

One of the jobs of the Daigle crew was to replace Gulf signs on the platforms with new Chevron signs. Because the new signs would not attach easily, the Daigle foreman had a pile of signs stacked on the work barge. The roustabouts had to step on these signs to get on or off the barge. Plaintiff slipped and fell when he stepped on the signs.

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Bluebook (online)
607 So. 2d 951, 1992 La. App. LEXIS 3232, 1992 WL 310438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spitzfaden-v-daigle-welding-service-inc-lactapp-1992.