Revised July 19, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-31294
JOHN P. FONTENOT, individually and as natural tutor, on behalf of
Ashley Nicole Fontenot, Wanda Renee Fontenot, and John Parish
Fontenot, Jr.,
Plaintiff-Appellee,
VERSUS
DUAL DRILLING CO., ET AL.,
Defendants,
ENSCO PLATFORM COMPANY,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
July 2, 1999
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PARKER, Circuit Judge:
Defendant-Appellant ENSCO Platform Company (“ENSCO”) appeals
the judgment for Plaintiff, John P. Fontenot (“Fontenot”) in this
personal injury action. We reverse and remand.
I. FACTS
1
Plaintiff Fontenot began employment with Weatherford-Enterra,
Inc. (“Weatherford”) in 1994. Fontenot is borderline mentally
handicapped with an IQ of approximately 70. Fontenot’s wife died
in October 1995, after which he was assigned to work onshore to
allow him to tend to his three minor children and personal affairs.
Five months later, Weatherford assigned Fontenot to a crew
conducting casing operations on a stationary platform on the Outer
Continental Shelf offshore Louisiana. Fontenot was part of a
“pick-up crew,” referring to the fact that most of the crew members
had not worked with each other on prior jobs and, more
specifically, Fontenot was not a regular member of the crew.
Weatherford’s crew was hired to run casing from the offshore
platform into the hole of a well. Each joint of casing had to be
filled with drilling “mud.” Fontenot was assigned the job of mud
valve operator. He was to instruct the driller, an ENSCO employee,
when each joint of casing was full of drilling mud so that the
driller could turn off the flow of mud into the joint.
Initially, the mudline and pump that were being used did not
require the active participation of Fontenot. Then Weatherford’s
supervisor, Leo Meche (“Meche”), requested that ENSCO change the
pump and line to speed up the process of filling casing with mud.
The line and pump were changed, and the new line included a valve
on the end of the mudline with a handle that could open and close
the valve. Meche instructed Fontenot and other persons on the rig
not to close the mudline valve at any time while the mud pump was
2
running because it was dangerous to do so in light of the extreme
pressure that could build up quickly in the line. Despite these
instructions, Fontenot closed the mudline valve. Pressure built
up, then was suddenly released, hurling Fontenot up into the
derrick, badly injuring one of his fingers.
II. DISTRICT COURT PROCEEDINGS
On January 27, 1997, Fontenot, individually and on behalf of
his three minor children, brought suit against ENSCO, alleging that
he was injured due to the negligence of ENSCO. ENSCO answered,
denying liability and affirmatively alleging comparative fault by
Fontenot and “other parties.” Subsequently, Weatherford and
Weatherford’s workers' compensation insurer filed a Complaint of
Intervention seeking to enforce their rights of subrogation to
recover amounts paid to or on behalf of Fontenot.
The case proceeded to a jury trial on September 15, 1997. The
jury returned its verdict, finding Fontenot 25% at fault, ENSCO 75%
at fault, and awarded total damages of $1,190,000 against ENSCO.
The court entered judgment consistent with that verdict on October
3, 1997. ENSCO filed a motion for new trial, which was denied.
ENSCO appealed.
III. ANALYSIS
A. QUANTIFYING FAULT
1. District court ruling and standards of review
ENSCO contended at trial that, pursuant to Louisiana tort law,
3
the Jury Verdict Form should direct the jury to quantify
Plaintiff’s employer’s fault. See LA. CIV. CODE ANN. art.
2323(A)(West 1997). The district court denied the request.
First, the trial court held that the Louisiana rule of
comparative fault which requires quantification of employer fault
is “inconsistent” with other federal law, specifically the
Longshore and Harbor Workers Compensation Act, 33 U.S.C. §§ 901-950
(“LHWCA”), thereby precluding application of comparative fault to
this case, pursuant to the Outer Continental Shelf Lands Act
(“OCSLA”). The district court articulated two alternative bases
for its denial of ENSCO’s request to have the jury quantify
employer fault: one, the evidence would not support a jury finding
that Weatherford had any responsibility for Fontenot’s accident
and, two, ENSCO’s request was not timely filed. We consider each
ruling in turn.
ENSCO's challenge to the district court’s holding that state
and federal law are inconsistent raises a question of law, which we
review de novo. See Reeves v. AcroMed Corp., 103 F.3d 442, 445
(5th Cir. 1997). Likewise, we review de novo the district court’s
ruling that the evidence was insufficient to go to the jury on this
issue. See FED. R. CIV. P. 50. We review the district court’s
decision that the request was untimely for abuse of discretion.
See Emmons v. Southern Pacific Transp. Co., 701 F.2d 1112 (5th Cir.
1983).
4
2. Is Louisiana law inconsistent with LHWCA?
ENSCO points out that LHWCA is silent on the question of
quantification of employer fault and that no other federal law is
inconsistent with Louisiana tort law. Fontenot, on the other hand,
agrees with the district court, taking the position that LHWCA sets
out a “loss allocation scheme” based on the rule of joint and
several liability which is inconsistent with quantification of
employer fault.
The OCSLA provides that when an employee is injured while on
the Outer Continental Shelf exploring for natural resources,
compensation shall be payable under the provisions of the LHWCA.
See 43 U.S.C. § 1333(b). The OCSLA also provides:
To the extent that they are applicable and not
inconsistent with this subchapter or with other Federal
laws and regulations . . . the civil and criminal laws of
each adjacent State . . . are hereby declared to be the
law of the United States for that portion of the . . .
Outer Continental Shelf, and artificial islands and fixed
structures erected thereon[.]
43 U.S.C. § 1333(a)(2)(A).
Under LHWCA, which is similar to other worker compensation
schemes, an employer's liability to an employee who is injured on
the job is essentially limited to payment of compensation. See 33
U.S.C. § 905(a). The LHWCA also allows the employee to recover for
injuries resulting from the fault of third parties. See 33 U.S.C.
§ 933(a). The employee need not choose whether to receive
compensation or to recover damages against a third person; he can
5
do both. See id. Election of receiving compensation can operate
as an assignment to the employer of the employee's cause of action
against third parties. See 33 U.S.C. § 933(b). However, the
employee has the exclusive right to bring the cause of action
against the third party for six months after the incident. See id.
Where an injured employee recovers from a third party, the
fund recovered is charged first for the cost of the recovery,
including attorney fees, next for reimbursement of the compensation
paid by the employer and finally, any additional recovery is paid
to the injured employee. See 33 U.S.C. § 933(f). If the amount
due as LHWCA compensation is more than the amount recovered against
the third party, the employer remains liable to pay the difference.
See id. The employer must give consent for any settlement between
an employee and a third party which is less than the total amount
of compensation owed in order for the employee to continue
receiving compensation. See 33 U.S.C. § 933(g).
Typically, when the employee files suit against a third party,
the employer will intervene to recover the amount of compensation
paid, just as Weatherford did in this case. However, as ENSCO
emphasizes, the LHWCA is silent on the issue of quantification of
employer fault.
Louisiana Civil Code, art. 2323, as amended in April 1996 as
a part of a package of tort reform by the Louisiana legislature,
provides, in pertinent part:
6
In any action for damages where a person suffers injury,
death, or loss, the degree or percentage of fault of all
persons causing or contributing to the injury, death, or
loss shall be determined, regardless of whether the
person is a party to the action or a nonparty, and
regardless of the person's insolvency, ability to pay,
immunity by statute, including but not limited to the
provisions of R.S. 23:1032, or that the other person's
identity is not known or reasonably ascertainable.
LA. CIV. CODE ANN. art. 2323(A).
Art. 2323(A) requires the fact finder to apportion fault among
all negligent parties regardless of whether the plaintiff can
recover from a particular party or not. Once the fact finder makes
the apportionment, such fault shall not be reallocated to any other
party. See LA. REV. STAT. ANN. 23:1104 (West Supp. 1998) Therefore,
fault must be attributed to a negligent employer even though the
employer is immune from suit under the Louisiana Workers'
Compensation Statute, LA. REV. STAT. ANN. 32:1023. See id. In Keith
v. U. S. Fidelity & Guar. Co., 694 So. 2d 180 (La. 1997), the
Louisiana Supreme Court held that the amendments of art. 2323(A)
requiring the quantification of fault of all tortfeasors were
procedural and therefore should be retroactively applied to torts
occurring prior to the effective date of the amendments, April 16,
1996. Consequently, the fact that Fontenot's injury occurred on
April 8, 1996, does not preclude the application of art. 2323(A) to
this case.1 Thus, ENSCO argues that Weatherford's percentage of
1
However, we note that the Louisiana Supreme Court has held
that the 1996 amendment to art. 2324(B) is substantive and
therefore applies prospectively only. See Aucoin v. DOTD, 712
7
negligence should have been determined by the jury and allocated
accordingly, reducing the proportion of ENSCO's liability.
The LHWCA contains no express language addressing the subjects
of allocation of fault or proportionate liability. Fontenot, while
recognizing the absence of any express conflict, nevertheless
concludes that LHWCA’s scheme allocating the costs of accident
injuries is inconsistent with Louisiana’s scheme of comparative
fault, relying upon Peters v. North River Ins. Co. of Morristown,
N.J., 764 F.2d 306, 309-10 (5th Cir. 1985). In our view, Peters is
factually and legally distinguishable and is therefore not
controlling.
First, the Louisiana statute at issue in this case
(§ 2323(A)), which requires the determination of the percentage of
fault of all tortfeasors, had not been passed by the Louisiana
Legislature when Peters was decided. Second, there was no
contention from any party in Peters that the employer was at fault
in any way for the injuries which Peters received. The sole issue
in Peters was whether the injured worker and a third-party
tortfeasor could deprive the employer of his statutory lien on the
settlement proceeds by not notifying the employer of the settlement
or by providing in the settlement agreement that the third-party
tortfeasor would otherwise satisfy the employer’s claim. Finally,
Fontenot did not settle with the third-party tortfeasor, as Peters
So.2d 62, 67 (La. 1998).
8
did with the third party in his case; instead, there was a trial on
the merits of Fontenot’s claim against ENSCO in which the employer
and its compensation underwriter intervened to assert their lien
upon any judgment proceeds to the extent of sums paid to Fontenot
as compensation benefits.
Next, we must consider whether § 905, the substantive LHWCA
third-party practice provision, applies to this case. We conclude
that it does not; it applies only when the third party is a vessel,
and there is no vessel involved in this case. That provision
reads, in pertinent part, as follows:
Negligence of vessel
In the event of injury to a person covered
under [LHWCA] caused by the negligence of a vessel,
then such person, or anyone otherwise entitled to
recover damages by reason thereof, may bring an
action against such vessel as a third party in
accordance with the provisions of section 933 of
this title, and the employer shall not be liable to
the vessel for such damages directly or indirectly
and any agreements or warranties to the contrary
shall be void. * * *
33 U.S.C. § 905(b) (emphasis added).
The portion of § 905 which is most relevant is § 905(c), which
reads:
Outer Continental Shelf
In the event that the negligence of a vessel
causes injury to a person entitled to receive
benefits under this chapter by virtue of section
1333 of Title 43, then such person, or anyone
otherwise entitled to recover damages by reason
thereof, may bring an action against such vessel in
accordance with the provisions of subsection (b) of
9
this section. Nothing contained in subsection (b)
of this section shall preclude the enforcement
according to its terms of any reciprocal indemnity
provision whereby the employer of a person entitled
to receive benefits under this chapter by virtue of
section 1333 of Title 43 and the vessel agree to
defend and indemnify the other for cost of defense
and loss or liability for damages arising out of or
resulting from death or bodily injury to their
employees.
(Emphasis added.) In this case, Fontenot is "a person entitled to
receive benefits under this chapter [LHWCA] by virtue of section
1333 of Title 43 [OCSLA]." It is explicit, therefore, that the
only third party cause of action contemplated by subsection (c) is
the one for "negligence of a vessel" which is to be brought in
accordance with subsection (b).
The term "vessel" is defined in § 902(21) as follows:
(21) Unless the context requires otherwise, the
term "vessel" means any vessel upon which or in
connection with which any person entitled to
benefits under this chapter suffers injury or death
arising out of or in the course of his employment,
and said vessel’s owner, owner pro hac vice, agent,
operator, charter or bare boat charterer, master,
officer, or crew member.
(Emphasis added.) There is no person or entity which meets this
definition in this case, and there is clearly no vessel of any kind
involved, much less one upon which any injury occurred. To the
contrary, Fontenot was injured during the course of drilling
activities on an oil and gas well located on a fixed platform on
the outer continental shelf. The Supreme Court has expressly held
that such activities are not maritime in nature. See Herb’s
10
Welding, Inc. v. Gray, 470 U.S. 414, 421-25 (1985). Therefore,
neither § 905(b) nor § 905(c) has any applicability to Fontenot’s
accident.
This distinction as to whether the third party against whom
liability is sought is a vessel or is a non-maritime entity is not
mere semantics. Our Circuit has consistently used this distinction
to reach different results in the context of third party actions
brought by LHWCA employees. For example, the doctrine of
contributory negligence under state law as a bar to recovery has
been applied to actions against non-maritime defendants under
OCSLA, whereas the maritime rule of comparative negligence has been
applied to vessel defendants. See Bertrand v. Shell Oil Co., 489
F.2d 293 (5th Cir. 1973); In re Dearborn Marine Serv., Inc., 499
F.2d 263 (5th Cir. 1974). As provided in § 905(c), non-maritime
third parties are not prohibited from obtaining contractual
indemnifications from LHWCA employers, whereas vessel owners are
prohibited from doing so by § 905(b). Tran v. Manatowoc Eng’g Co.,
767 F.2d 223 (5th Cir. 1985); Pippen v. Shell Oil Co., 661 F.2d 378
(5th Cir. 1981). Likewise, while the 1972 amendments to LHWCA did
away with the strict liability doctrine of unseaworthiness as to
vessel owners, this amendment did not prevent application of the
Louisiana articles on strict liability to non-maritime defendants
under Louisiana law. See Olsen v. Shell Oil Co., 595 F.2d 1099
(5th Cir. 1979).
11
The other LHWCA provision relevant to third-party claims is
§ 933. Those parts of § 933 which pertain to an employee’s legal
action against a responsible third party provide:
Compensation for injuries where third persons are
liable
(a) Election of remedies
If on account of a disability or death for
which compensation is payable under this chapter
the person entitled to such compensation determines
that some person other than the employer or a
person or persons in his employ is liable in
damages, he need not elect whether to receive such
compensation or to recover damages against such
third person.
* * *
(f) Institution of proceedings by person entitled
to compensation
If the person entitled to compensation
institutes proceedings within the period prescribed
in subsection (b) of this section the employer
shall be required to pay as compensation under this
chapter a sum equal to the excess of the amount
which the Secretary determines is payable on
account of such injury or death over the net amount
recovered against such third person. Such net
amount shall be equal to the actual amount
recovered less the expenses reasonably incurred by
such person in respect to such proceedings
(including reasonable attorneys’ fees).
* * *
(i) Right to compensation as exclusive remedy
The right to compensation or benefits under
this chapter shall be the exclusive remedy to an
employee when he is injured, or to his eligible
survivors or legal representatives if he is killed,
by the negligence or wrong of any other person or
persons in the same employ: Provided, That this
12
provision shall not affect the liability of a
person other than an officer or employee of the
employer.
33 U.S.C. § 933.2
These two statutory provisions, §§ 905 and 933, accomplish two
separate things. Section 905 vests employees covered by LHWCA with
a federal third-party cause of action against a vessel based on
negligence. “The first sentence [of § 905(b)] addresses the
recurring situation . . . where the party injured by the negligence
of the vessel is a longshoreman employed by a stevedoring concern.”
Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 263
(1979). That common tripartite situation addressed in Edmonds is
not present in this case. There is no vessel in this case; there
is no vessel owner in this case; there is no stevedore in this
case; and the injured worker was not engaged in any activities
related to loading or unloading a vessel at the time of his injury.
Section 933 establishes procedures by which third-party claims
are to be prosecuted in the context of a predicate LHWCA claim.
Any such third-party claim, unless it is a § 905(b) or (c) claim
against a vessel, must be based on some external authority. See
Garvin v. Alumax of S.C., Inc., 787 F.2d 910, 917 (4th Cir. 1986).
2
Other provisions of § 933 address, inter alia,
circumstances in which the employer may pursue an action against
the responsible third party (as the assignee of the injured
employee’s rights against the third party), see 33 U.S.C. § 933(b),
(d) & (e), or in which the employee may enter into a settlement
with the responsible third party, see 33 U.S.C. § 933(g). These
statutory provisions are not implicated by the facts of this case.
13
In this case, because the third party tortfeasor was not a vessel,
the external authority is the statutory law of the State of
Louisiana, which imposes tort liability on a third party tortfeasor
proven to be concurrently negligent. In fact, the Louisiana
statute, § 2323, was itself applied to Fontenot’s claim against
ENSCO in that it is the source of the allocation of fault between
Fontenot and ENSCO and the elimination of the common law rule of
contributory negligence as a bar to a plaintiff’s recovery.
Obviously, it is not inconsistent with OCSLA or LHWCA for
Louisiana to impose third-party liability; § 933 expressly
contemplates such an external law. If the scope of the third-party
liability, as well as defenses to it, are established by state law,
state law governs the question of whether a proportionate-liability
rule applies. Cf. Ferri v. Ackerman, 444 U.S. 193, 198 (1979)
(“[W]hen state law creates a cause of action, the State is free to
define the defenses to that claim, including the defense of
immunity, unless, of course, the state law is in conflict with
federal law.” (citing U.S. Const. Art. VI, cl. 2)). More
importantly, however, the proportionate-liability scheme imposed by
Louisiana law cannot be inconsistent with federal law because there
would be no third-party cause of action in this case had Louisiana
not provided one. Edmonds is not to the contrary because that case
dealt with the federal third-party cause of action created by
§ 905(b) involving a vessel.
14
In Rodrigue v. Aetna Casualty & Surety Company, 395 U.S. 352
(1969), the Supreme Court discussed in detail the legislative
history underlying the enactment of OCSLA. Rodrigue involved two
deaths occurring on fixed offshore platforms on the Outer
Continental Shelf. The question was whether Louisiana tort law or
the Death on the High Seas Act, 46 U.S.C. § 761 et seq. ("DOHSA"),
with its limitations on recoverable damages, would apply. A panel
of our Circuit had held that DOHSA applied. The Supreme Court
reversed and held that DOHSA did not apply to the platform-related
deaths because Congress, in OCSLA, deliberately rejected the
application of admiralty and maritime principles to fixed
platforms. Therefore, Louisiana tort law applies on fixed
platforms located on the Outer Continental Shelf. See Rodrigue,
395 U.S. at 366, 89 S. Ct. at 1842.
In reviewing the legislative history of OCSLA, the Rodrigue
Court noted that there was some initial support in Congress for the
application of maritime law to fixed platforms located on the Outer
Continental Shelf. Ultimately, however, Congress rejected the
notion that maritime principles should apply on fixed platforms
located on the Outer Continental Shelf:
[T]he admiralty action under [DOHSA] no more
applies to these accidents actually occurring on
the islands than it would to accidents occurring in
an upland federal enclave or on a natural island to
which admiralty jurisdiction had not been
specifically extended.
395 U.S. at 366, 89 S. Ct. at 1842.
15
Two years after Rodrigue, the Supreme Court again considered
the application of Louisiana law in connection with an accident
arising on a fixed platform on the Outer Continental Shelf. In
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the issue was whether
Louisiana’s one year prescriptive period would apply rather than
the admiralty doctrine of laches. A panel of our Circuit held
that, despite the holding in Rodrigue rejecting maritime law, the
laches doctrine was applicable as a matter of "federal common law."
The Supreme Court rejected this notion, stating:
As we pointed out in Rodrigue, Congress recognized
that The Federal Code was never designed to be a
complete body of law in and of itself and thus that
a comprehensive body of state law was needed.
Congress also recognized that the special relation-
ship between the men working on these artificial
islands and the adjacent shore to which they
commute favored application of state law with which
these men and their attorneys would be familiar.
If Congress’ goal was to provide a comprehensive
and familiar body of law, it would defeat that goal
to apply only certain aspects of a state personal
injury remedy in federal court. A state time
limitation upon a remedy is coordinated with the
substance of a remedy and is no less applicable
under [OCSLA].
404 U.S. at 102-3, 92 S. Ct. at 353-54 (citations omitted,
emphasis supplied). The Supreme Court rejected our Circuit’s
attempt to apply laches as a matter of "federal common law" because
the approach "subverts the congressional intent documented in
Rodrigue . . . that admiralty doctrines should not apply under the
Lands Act." 404 U.S. at 104, 92 S. Ct. at 354 (emphasis supplied).
In concluding its discussion regarding why Louisiana’s prescription
16
statute would apply over the purported "federal common law"
doctrine of laches, the Court stated:
Congress specifically rejected national uniformity
and specifically provided for the application of
state remedies which demand state, not federal,
statutes of limitation. Thus, Congress made clear
provision for filling in the "gaps" in federal law;
it did not intend that federal courts fill in those
"gaps" themselves by creating new federal common
law.
Huson, 404 U.S. at 104-105, 92 S. Ct. at 354.
Following the lead of the Supreme Court in Rodrigue and
Huson, our Circuit has consistently rejected attempts of litigants
to have "federal common law" override rules of Louisiana tort law
in actions arising on fixed platforms on the Outer Continental
Shelf. See, e.g., Marcel v. Placid Oil Co., 11 F.3d 563, 570-71
(5th Cir. 1994) (adopting Louisiana’s rule on use of "pre-tax"
wages in computing damages for wages and lost earning capacity);
Olsen v. Shell Oil Co., 708 F.2d 976, 983 (5th Cir. 1983) (adopting
the Louisiana rule on inflation).
This Court has expressly noted that "the substantive right to
recover against third parties is, of course, generally determined
by law independent of the LHWCA." Peters, 764 F.2d at 310. That
the LHWCA itself does not provide the rule of decision in actions
against third parties is further highlighted by this Court’s
decision in Olsen v. Shell Oil Co., 708 F.2d 976 (5th Cir. 1983).
In discussing the LHWCA employer’s independent action against a
third party tortfeasor, this Court recognized that the foundation
17
of the claim was based on the underlying law governing the claim
(maritime law or state law) and was not based on the provisions of
the LHWCA itself. See id. at 981. Thus, we noted, in Federal
Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416-
17, 420 n. 23 (1969), the Court indicated that the stevedore’s
right of indemnity, if available, would be under federal maritime
law. In the context of the OCSLA, we recognized that the insurer’s
remedy was under surrogate state law.” Olsen, 708 F.2d 981 n. 3
(citations omitted).
In sum, OCSLA requires that we apply Louisiana law to the
extent that it is consistent with applicable federal law (i.e.,
LHWCA). To the extent that LHWCA addresses the problem of
allocating fault to a third-party tortfeasor, its provisions are
limited by their terms to situations involving the negligence of a
third-party vessel. No vessel is involved in this case, thus the
LHWCA third-party fault scheme is inapplicable, and we are left
with the Louisiana law which imposes third-party liability and its
rule of comparative fault as the governing law. Under Louisiana
law, ENSCO was entitled to appropriate jury interrogatories to
implement this rule and the district court erred by failing to so
charge the jury.
3. Sufficiency of the Evidence on Employer Fault
ENSCO next contends that, contrary to the district court’s
ruling, there was sufficient evidence in the record to support a
18
jury finding that Fontenot’s employer, Weatherford, was at least
partially responsible for the accident. We agree.
In order to hold an employee negligent, the reasonableness of
his conduct must be assessed vis a vis the conduct of his employer,
using the following criteria: (1) relative knowledge of the danger
by the supervising employee and the injured employee; (2) relative
control over the employee’s situation; (3) the degree to which the
employee’s conduct is voluntary; (4) alternatives available to the
employee; (5) obviousness of the danger; and (6) relative ability
to eliminate the danger. See Bridgewater v. State Through Dept. of
Corrections, 434 So.2d 383 (La. 1983). There was evidence that
Weatherford knew of Fontenot’s mental limitations and personal
distractions, as well as the strengths and weaknesses of the other
members of the pick up crew. Further, it was Weatherford’s
supervisor, Meche, who made the decision to change from the slower,
but safer mudline and pump to the line and pump that exploded,
causing Fontenot’s injuries. Further a jury could have found that
Weatherford, through Meche, required Fontenot to remain in his
position despite his repeated closing of the valve. Based on the
record before this court, the district court erred in determining
that the evidence was insufficient for the jury to consider whether
Weatherford bore some responsibility for the accident.
4. Timeliness of ENSCO’s Request
In addition to the foregoing reasons for not allowing the jury
19
to quantify Fontenot’s employer’s fault, the district court stated:
“The request was filed late, past the deadline.” On examining the
pleadings, we note that ENSCO asserted the defense of third-party
fault in its answer and again in the Joint Pre-Trial Stipulations,
although it is not entirely clear that the third party referred to
in these early pleadings was Weatherford. On Friday, September 12,
1997, prior to the beginning of trial on Monday, September 15,
1997, ENSCO objected to the Jury Interrogatories submitted by
Plaintiff and submitted its own Jury Interrogatories, specifically
requesting that Weatherford’s fault be quantified. The district
court’s scheduling order set a deadline of September 5, 1997 for
submission of jury instructions and interrogatories. We are called
on to decide whether the district court abused its discretion in
refusing ENSCO’s jury interrogatories, filed prior to trial, but
one week beyond the deadline set by the scheduling order, on the
basis that they were untimely filed. We conclude that such a
decision would have been an abuse of discretion in the
circumstances of this case. Further, it is not at all clear from
the district court’s language that, in the absence of the other
factors which the court considered in reaching its decision, the
late filing alone would have been sufficient to convince the
district court to deny ENSCO’s requested jury instructions.
5. Error in jury interrogatories requires reversal and remand
Because we have determined that the three bases articulated by
20
the district court for refusing ENSCO’s request for jury
interrogatories quantifying employer fault do not support that
decision, we conclude that the denial was error. We therefore must
reverse and remand this case for further proceedings. However, one
other issues raised on appeal may recur on remand. We therefore
address it as well.
B. UNIT OF TIME ARGUMENT
ENSCO contends that the district court’s failure to give the
jury a cautionary instruction regarding Fontenot’s “unit of time”
argument was error. “Jury verdicts on damages may be overturned
only upon a clear showing of excessiveness or upon a showing that
they were influenced by passion or prejudice.” Westbrook v.
General Tire and Rubber Co., 754 F.2d 1233, 1241 (5th Cir. 1985).
However, if we are persuaded that the jury charge “was
substantially flawed and resulted in prejudicial error,” we will
reverse. Colburn v. Bunge Towing, Inc., 883 F.2d 372, 376 (5th
Cir. 1989).
Over ENSCO’s objection, Fontenot made the following “unit of
time” argument in closing:
[H]ow about $2 an hour? $2 an hour for the physical pain
and suffering, the mental anguish, the scarring and
disfigurement, the permanent loss of the use of his hand,
$2 an hour for the rest of his life. $16 for half a day,
$32 a day. The figures I came up with were $125,000 for
physical pain and suffering. For mental anguish,
$75,000. . . . And for the disability, the fact that he
has to walk around for the rest of his life with his hand
in the way that it is, $280,000.
21
In Colburn, 883 F.2d at 377-78, this court reversed a jury
verdict based on the district court’s failure to give a cautionary
instruction to counter the prejudicial effects of the “unit of
time” argument made by plaintiff’s counsel, reasoning:
Without a specific cautionary instruction, there is a
danger that this argument will create an illusion in the
jury’s mind that pain and suffering damages can and
perhaps should properly be measured or calculated by
simple multiplication rather than through the jury’s
sound discretion.
Id. at 377 (citing Baron Tube Co. v. Transport Ins. Co., 365 F.2d
858, 865 (5th Cir. 1966)(en banc)). The Colburn court noted that
the “blanket cautionary instruction given in this case that 'any
statements, objections, or arguments made by lawyers are not
evidence in this case' inadequately addresses” the Court’s concern
with the use of “unit of time” argument. Id.
Given this court’s rulings in Baron Tube and Colburn, the
district court’s failure to give the instruction was error.
Fontenot does not dispute that this circuit’s jurisprudence
requires a specific cautionary jury instruction when plaintiff
makes a “unit of time” argument. However, he argues that ENSCO
invited the error. Fontenot included the necessary instruction in
the Joint Jury Charges that were submitted by the parties pursuant
to the district court’s pretrial order. ENSCO objected both in
writing and orally to the “unit of time analysis that was in the
joint jury interrogatory.” The court sustained the objection,
saying, “I am not going to give that section....”
22
The next day, just prior to closing argument, Fontenot’s
attorney asked the court to clarify whether its ruling precluded
him from making the “unit of time” argument. The court responded
that Fontenot could argue whatever he wanted to argue, but that the
cautionary instruction on “unit of time” would not be included in
the jury charge. ENSCO interjected that it was reversible error to
allow the argument without the cautionary instruction. The court
persisted in its position, denied the cautionary instruction and
allowed the argument. Although ENSCO’s objection and the court’s
ruling indicate that there was some confusion on this issue, we
conclude ENSCO did not invite the error. ENSCO’s position at trial
was clearly that it wished to preclude the “unit of time” argument,
but that if the argument was allowed, the cautionary instruction
was necessary.
In short, the district court erred in denying ENSCO’s request
for a cautionary jury instruction on this issue. However, because
our ruling on the quantification-of-employer-fault issue mandates
reversal, we need not reach the question of whether the failure to
give the instruction may have been harmless error.
IV. CONCLUSION
For the foregoing reasons, we reverse the judgment for
Fontenot and remand this action to the district court for further
proceedings consistent with this opinion.
REVERSED and REMANDED.
23