Bergeron Marine Service, Inc. v. Femco MacHine Co.

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 20, 2005

Charles R. Fulbruge III
Clerk
No. 04-30484
Summary Calendar

BERGERON MARINE SERVICE, INC.; ET AL.,

PlaintiffS,

GULF COAST DOCKSIDE, INC.; ALBANY INSURANCE CO.; AMERICAN
EMPLOYERS’ INSURANCE CO.; FIREMANS FUND INSURANCE CO.;
RELIANCE INSURANCE CO.; ROYAL INSURANCE COMPANY OF AMERICA;
COMMERCIAL UNION INSURANCE GROUP; GENERAL COLOGNE RE,

Plaintiffs-Appellants,

versus

FEMCO MACHINE COMPANY, INC.,

Defendant-Appellee.

MICHELLE CAMPO, ETC.; ET AL.,
Plaintiffs,

versus

FEMCO MACHINE COMPANY, INC.; ET AL.,

Defendants,

FEMCO MACHINE COMPANY, INC.,

Defendant-Appellee,

versus

GULF COAST DOCKSIDE, INC.,

Defendant-Appellant.
 Appeal from the United States District Court
for the Eastern District of Louisiana
(2:00-CV-3436-M)
(2:00-CV-2327-M)

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Gulf Coast Dockside, Inc., and its partially subrogated

insurers (collectively Gulf Coast) appeal from a jury verdict

finding Gulf Coast solely responsible for the incident underlying

this action. Gulf Coast bases reversible error on the jury

instructions.

On 22 November 1999, a “Docksider” crane engaged in Gulf

Coast’s stevedoring operations collapsed and fell into the

industrial canal adjacent to Gulf Coast’s facilities in New

Orleans, Louisiana. Approximately 17 months earlier, Gulf Coast

had bought the crane from Femco Machine Co., which had refurbished

the crane and resold it as fully rebuilt and reconditioned.

Through this action for redhibition against Femco, Gulf Coast

seeks return of the crane’s purchase price. Gulf Coast asserts:

at the time of sale, the crane contained non-apparent defects in

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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the load-bearing component of the crane’s base; and these defects

caused, in whole or in part, the collapse.

At the jury trial, Femco asserted that the crane’s collapse

was due partly to Gulf Coast’s routine overloading of the crane

beyond its load limit and partly by the “shock loading” of the

crane caused by an inexperienced crane operator, who, on his very

first load, dropped a bucket of barite and then tried to catch it

in mid-air before it hit the ground. (This incident immediately

preceded the collapse of the crane.) Gulf Coast admits that the

crane operator contributed to the collapse.

The district court instructed the jury that, if it found both

parties partially at fault, it was to apportion the percentage of

responsibility between the two parties. The jury returned a

verdict finding Gulf Coast solely at fault. The district court

entered judgment on 12 April 2004, dismissing Gulf Coast’s claim

with prejudice.

Gulf Coast contends the district court committed reversible

error by giving jury instructions which failed to instruct jurors

clearly as to the principles of law applicable to the factual

issues of the case. A challeged jury instructions is reviewed

under a two-prong standard:

First, the challenger must demonstrate that
the charge as a whole creates substantial and
ineradicable doubt whether the jury has been
properly guided in its deliberations. Second,
even if the jury instructions were erroneous,
we will not reverse if we determine, based

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 upon the entire record, that the challenged
instruction could not have affected the
outcome of the case.

Pelt v. U.S. Bank Trust Nat. Ass'n, 359 F.3d 764, 767 (5th Cir.

2004) (emphasis added; citing Johnson v. Sawyer, 120 F.3d 1307,

1315 (5th Cir. 1997)). As discussed below, we need not reach the

second prong.

Gulf Coast bases reversible error on the following

instruction, which provided, inter alia, that:

Thus, for Gulf Coast Dockside to prevail,
you must find it is more likely than not that
the accident was caused by a defective crane
and that no intervening circumstances caused
the accident.

....

Femco is exempted from the warranty of
redhibition if you find that Gulf Coast
Dockside abused, neglected, improperly used or
maintained the crane and that this mis-use or
neglect was the proximate cause of the
accident. Femco has the burden of proving
that this mis-use was an intervening proximate
cause of the accident.

Gulf Coast contends: this instructs the jury to find for Femco if

it finds overloading the crane the day of the accident an

“intervening proximate cause” or “intervening circumstance”, even

if it also found that pre-existing defects in the crane also caused

the accident; and this potentially created confusion among the

jurors because it conflicts with the court’s other instructions to

apportion fault between the parties if the jury finds both at

fault.

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 Pursuant to the above-described two-prong standard of review,

we must first determine whether “the charge as a whole creates

substantial and ineradicable doubt whether the jury has been

properly guided in its deliberations”. Pelt, 359 F.3d at 767. The

paragraph immediately following the challenged instruction states,

inter alia:

It is your role as jurors to determine what
caused this accident. Gulf Coast Dockside
asserts that the crane was defective. Femco
asserts that the crane was routinely
overloaded and misused, and was being misused
at the time of the accident. You may find
that one of these alleged causes was the
exclusive cause of the accident or you may
find that the accident was caused by a
combination of these or other factors. If you
find that the accident was caused in part by a
defect existing in the crane at the time of
sale and in part by overloading or misuse of
the crane by Gulf Coast Dockside, then you
should apportion or divide responsibility for
the resulting damages between both parties in
accordance with the degree or percentage to
which you find that each cause contributed to
the accident.

(Emphasis added.) A similar instruction is contained earlier in

the instructions. Moreover, the verdict form gave the jury three

options: (1) to find for Gulf Coast; (2) to find for Femco; or

(3) to find that both Gulf Coast and Femco were responsible by

assigning percentages to their respective contributing fault.

Although it is possible a jury could mis-construe the

instruction, any confusion was remedied by the court’s twice

instructing the jury to assign a percentage of fault to each party

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if it found both parties at fault. Furthermore, as discussed,

apportioning fault was one of three options provided the jury by

the verdict form. Therefore, we cannot say “the charge as a whole

creates substantial and ineradicable doubt [that] the jury [was]

properly guided in its deliberations”. Pelt, 359 F.3d at 767.

AFFIRMED

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