Bayham, Jr. v Grosse Tete Well Service, Inc.

Filing 130

ORDER & REASONS that the 82 Motion for Summary Judgment filed on behalf of Louisiana Delta, Eugene Carter, and Lafourche Area Geoscience, LLC, is DENIED. Signed by Judge Eldon E. Fallon on 5/20/13. (dno, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CARY A BAYHAM, JR.

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VERSUS
GROSSE TETE WELL SERVICE,
INC., ET AL.

CIVIL ACTION
NO. 11-1815
SECTION "L"(1)

ORDER & REASONS
Before the Court is a Motion for Summary Judgment filed on behalf of Eugene
Carter, Lafourche Area Geoscience, LLC, Louisiana Delta Oil Co., L.L.C. (R. Doc. 82). The
Court, having reviewed the submitted memoranda and the applicable law, and also having heard
the oral arguments of counsel at a hearing on May 1, 2013, now issues this Order and Reasons.
I. BACKGROUND
This case arises out of injuries sustained by Plaintiff Carl A. Bayham, Jr., on December
1, 2010, while he was employed as a floor hand for Defendant Gross Tete Well Services
(“Grosse Tete”), assigned to a truck-mounted workover rig secured to a barge, the GROSSE
TETE 1. Plaintiff alleges that, on that date, he was advised that the well he was working on was
“dead” (that is, there were no combustible gases present). However, as he was using an acetylene
torch to cut bolts on the well, the well head exploded, causing him serious burns and injury to his
low back and other parts of his body. Plaintiff filed suit in this Court against Defendant Grosse
Tete, as well as Louisiana Delta Oil Company (“Louisiana Delta”), the well owner, and B&B
Oilfield Services (“B&B”), the site consultants. Plaintiff alleges that his injuries were a direct
result of Defendants’ negligence, including their failure to provide a reasonably safe place to
work, negligently representing that the well head was free of combustible gases, and negligent
supervision. Plaintiff has filed suit under the Jones Act, seeking damages for mental and physical
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pain and suffering, loss of wages, loss of earning capacity, past and future medical expenses,
permanent disability, and loss of life’s enjoyment, and additionally seeks maintenance and cure.
Defendant Grosse Tete filed an answer denying liability and asserting the affirmative
defense that Plaintiff was not a Jones Act seaman. Therefore, Grosse Tete contended, Plaintiff
had been duly compensated by the workers’ compensation laws of Louisiana and did not deserve
Jones Act recovery. As discussed further below, the United States Court of Appeals for the Fifth
Circuit dismissed Grosse Tete’s appeal of this Court’s ruling affirming Plaintiff’s status as a
Jones Act seaman. In its Answer, Grosse Tete also argues that the accident was the result of the
negligence of Plaintiff and/or a third party. In addition, Grosse Tete has filed a cross-claim
against Defendants Louisiana Delta and B&B. Grosse Tete asserts that the property damage it
sustained as a result of the explosion was caused by the negligence of Louisiana Delta and B&B.
According to Grosse Tete, Louisiana Delta and B&B are responsible because they provided false
information regarding the nature of the production tree, failed to determine the true nature of the
production tree, failed to properly train their employees, and failed to properly protect Grosse
Tete’s property.
Defendant Louisiana Delta has filed an answer denying liability and asserting affirmative
defenses, including comparative negligence, negligence of a third-party, and failure to mitigate
damages. Louisiana Delta has also filed cross-claims against Grosse Tete and B&B, asserting
that the explosion and damage to Louisiana Delta’s property were caused by the negligence of
Grosse Tete and B&B, including failure to adequately plug the well, failure to train their
employees, and failure to take sufficient precautionary measures. Finally, Louisiana Delta has
filed a counter-claim against Mr. Bayham, contending that the explosion and property damage
were a result of his negligence.
Defendant B&B has filed an answer denying liability and asserting affirmative defenses.
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B&B denies that the work was directed and/or supervised by its representatives and denies that it
made any claims about the status of the wellhead.
On February 27, 2012, and March 27, 2012, the parties filed Cross-Motions for Summary
Judgment on the issue of Jones Act seaman status. On May 22, 2012, the Court granted
Plaintiff’s Motion for Summary Judgment and denied Defendant’s Motion for Summary
Judgment, ruling that the Plaintiff qualified as a Jones Act seaman.
On June 20, 2012, Defendant filed a Motion for Leave to Appeal (R. Doc. 55) the Court’s
Order and Reasons denying Defendant’s Motion for Summary Judgment (R. Doc. 53).
Defendant argued that because the Court was sitting in admiralty, Defendant had the right to
appeal the Court’s interlocutory order on the Cross-Motions for Summary Judgment pursuant to
28 U.S.C. § 1292(a)(3). The Court granted Defendant’s Motion for Leave to Appeal and stayed
the case pending the Fifth Circuit’s resolution of Defendant’s appeal. On February 26, 2013, the
United States Court of Appeals for the Fifth Circuit issued a judgment denying Grosse Tete’s
appeal of this Court’s ruling.
On April 16, 2013, Louisiana Delta filed a Motion for Summary Judgment on its own
behalf and on behalf of Eugene Carter and Lafourche Area Geoscience, LLC (“Lafourche”).
II. PRESENT MOTION
In support of its Motion for Summary Judgment, Louisiana Delta argues that its company
man, Eugene Carter, did not exercise operational control over the conversion of Louisiana
Delta’s well into a saltwater disposal well. Louisiana Delta argues that the toolpusher, Denny
Comeaux, made all material decisions regarding the work and controlled the crew actions that
led to the fire. Therefore, Louisiana Delta argues, there are no genuine issues of material fact as
to the independent liability of Louisiana Delta, Carter, or Lafourche.
More specifically, Louisiana Delta argues that Eugene Carter, a consulting geologist,
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“does not possess any expertise concerning the actual makeup of wellheads” and the safety and
technical issues involved in the conversion process. Louisiana Delta concedes that Carter gave
the go-ahead to use the torches to cut the wellhead bolts, but insists that Carter did so only after
receiving assurances from Denny Comeaux that the use of the torches was safe. Similarly,
Louisiana Delta concedes that Carter gave the go-ahead to proceed with cutting without setting a
back-pressure valve, but insists that Denny Comeaux had assured him that the valve was
unnecessary.
The parties filed a total of five oppositions to the instant Motion. Plaintiff’s opposition
(R. Doc. 92) was joined by B & B Oilfield Services (R. Doc. 95). Grosse Tete filed a total of
three oppositions in its different capacities: (1) as Defendant (R. Doc. 93); (2) as Plaintiff-incrossclaim (R. Doc. 94); and as cross-Defendant (R. Doc. 96).
In his opposition, Plaintiff argues that Carter actively managed the safety aspects of the
conversion, including ordering B & B to send a worker with multiple sizes of back-pressure
valves, because though Carter did not know what type of Christmas Tree was affixed to the well
he knew that use of a back-pressure valve would provide “additional safety” during the
conversion. Plaintiff argues that Carter’s deposition testimony demonstrates that he made the
ultimate decision to engage in cutting without a back-pressure valve despite his own safety
concerns. Carter’s testimony also reveals that he had “final authority” over what work should
proceed and over worker safety and that “the buck stopped” with him. Plaintiff further argues
that Carter ignored a B & B representative’s attempt to invoke his stop-work authority because
of his concerns about proceeding with cutting in the absence of a back-pressure valve.
In sum, Plaintiff argues that Louisiana Delta failed to inform Carter as to critical details
regarding the conversion project (including the type of Christmas Tree), then sent him to
supervise the work despite his lack of relevant expertise; furthermore, Carter made ultimate
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decisions to proceed with the work in an unsafe fashion despite his own safety concerns.
Accordingly, Plaintiff argues that Carter’s operational control of the wellhead is pregnant with
genuine issues of material fact and that Louisiana Delta’s Motion for summary judgment should
be denied.
Grosse Tete’s multiple opposition memoranda echo the arguments made by Plaintiff.
These memoranda also point to the expert report provided by Neal Adams, which assigns
liability for “operational negligence” not only to Grosse Tete but also to Carter and Louisiana
Delta. Adams’s report further identifies areas of conflicting testimony among Carter, Comeaux
and Olivier (the B & B representative), which in its view preclude summary judgment.
III. LAW AND ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “A factual dispute is ‘genuine’ if the evidence is such that a reasonable [trier of fact]
could return a verdict for the nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir.
1997). “Unsubstantiated assertions, improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment.” Brown v. City of Houston, 337 F.3d 539,
541 (5th Cir. 2003). “Summary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are
designed to secure the just, speedy and inexpensive determination of every action.” Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotation marks and citation omitted).
Accordingly, “district courts are widely acknowledged to possess the power to enter summary
judgments sua sponte, so long as the losing party was on notice that she had to come forward
with all her evidence.” Id. at 326.
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B. Operational Control
The parties’ filings indicate that, at best, Louisiana Delta’s operational control over the
conversion of its well is a matter of genuine factual dispute. As the United States Court of
Appeals for the Fifth Circuit has explained on several occasions, “The law governing this dispute
is well established. A principal is not liable for the torts of an independent contractor unless the
principal exercises operational control over or expressly or impliedly authorizes the independent
contractor’s actions.” Landry v. Huthnance Drilling Co., 889 F.2d 1469, 1471 (5th Cir. 1989).
The parties’ submissions indicate genuine issues of material fact as to both conditions: the
parties dispute Louisiana Delta’s exercise of operational control and its express or implied
authorization of the use of cutting torches without a back-pressure valve. Accordingly, the issue
is not ripe for summary judgment and Louisiana Delta’s Motion must be denied.
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Motion for Summary Judgment
filed on behalf of Louisiana Delta, Eugene Carter, and Lafourche Area Geoscience, LLC (R.
Doc. 82) is hereby DENIED.
New Orleans, Louisiana, this 20th day of May, 2013.

UNITED STATES DISTRICT JUDGE

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