Marcel v. Shell Offshore Inc et al
MEMORANDUM RULING AND ORDER denying 20 Motion to Dismiss for Failure to State a Claim. FURTHER ORDERED that plaintiff's request for leave to amend his complaint is granted. Plaintiff shall file his amended complaint within 10 days of the filing of this Order. Signed by Magistrate Judge Carol B Whitehurst on 1/7/2021. (crt,Bunting, M)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
DEVIN MARCEL, Individually and on
behalf of Gary Marcel Estate
Civil Action No. 6:20-0773
Judge Michael J Juneau
SHELL OFFSHORE, INC., ET AL.
Magistrate Judge Carol B Whitehurst
MEMORANDUM RULING AND ORDER
Before the undersigned, on referral from the district judge, is the Motion to
Dismiss for Failure to State a Claim [Doc. 20] filed by defendant Zurich American
Insurance Company (“Zurich”). The motion is opposed by plaintiff Devin Marcel
[Doc. 26], and Zurich filed a Reply brief [Doc. 31]. For the following reasons, the
plaintiff’s request for leave to amend his complaint will be granted and Zurich’s
motion to dismiss will be denied without prejudice to its right to reurge its motion
in response to plaintiff’s amended complaint, if warranted.
The instant lawsuit arises out of the death of Gary Marcel, whose son, Devin,
brings the instant lawsuit on behalf of his father’s estate. At the time of his death,
Gary Marcel was an employee of Danos, Inc. On June 30, 2019, Gary was working
on the Shell Auger, a tension leg platform located on the Outer Continental Shelf off
the coast of Louisiana in the Gulf of Mexico. Plaintiff alleges that during a lifeboat
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safety exercise/test with Lifeboat 6, the cables, hooks, davits, davit systems, or other
mechanisms of the lifeboat failed/malfunctioned in several respects, resulting in the
lifeboat breaking loose and falling over seventy (70) feet into the Gulf of Mexico.
Gary died while en route to receive medical treatment for his injuries in the fall.
Plaintiff’s original complaint named three defendants in the following
capacities: Shell Offshore, Inc. ("Shell"), as the owner/operator of the platform;
Palfinger Marine USA, Inc. (“Palfinger”), as the manufacturer of the lifeboat, its
cables, securing hooks, and davits; and Zurich, in its capacity as an insurer of
Palfinger. After Shell filed an answer, and before any other defendant did, plaintiff
amended his complaint to add direct negligence claims against Zurich in its capacity
as an inspector.
In his amended complaint, the plaintiff alleges that Zurich
conducted an inspection or commissioned another party to conduct an inspection on
its behalf that uncovered the defective conditions that led to Mr. Marcel’s death.
It is these claims that Zurich (as inspector) now seeks to have dismissed.1
Zurich argues it does not have the capacity to be sued as an inspector, and further
argues that the plaintiff has not pled any facts which, even if accepted as true, would
establish that Zurich ever acted in such a capacity, that Zurich was ever charged with
such a duty, or that Zurich ever voluntarily assumed such a duty.
Zurich states that the instant motion is directed only to the plaintiff’s claims against it for its own
alleged actions and/or inactions. Zurich seeks no relief with respect to the claims alleged against
it in its capacity as an alleged insurer of Palfinger.
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LAW AND ANALYSIS
A. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, the plaintiffs must plead enough
facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads facts that allow the
court to “draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S.Ct. at 1949. A court must accept all well-pleaded
facts as true and must draw all reasonable inferences in favor of the plaintiff.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232–33 (5th Cir.2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir.1996). But the Court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 129 S.Ct. at 1949–50.
A legally sufficient complaint must establish more than a “sheer possibility”
that plaintiffs' claim is true. Id. It need not contain detailed factual allegations, but it
must go beyond labels, legal conclusions, or formulaic recitations of the elements of
a cause of action. Twombly, 550 U.S. at 555. In other words, the face of the complaint
must contain enough factual matter to raise a reasonable expectation that discovery
will reveal evidence of each element of the plaintiffs' claim. Lormand, 565 F.3d at
255–57. If there are insufficient factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the
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complaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215
(2007); Carbe v. Lappin, 492 F.3d 325, 328 & n. 9 (5th Cir.2007), the claim must be
As an initial matter, the undersigned notes that the parties have not briefed the
issue of what law governs the plaintiff’s claims in this matter. The plaintiff points
out that he has brought claims under Louisiana law as surrogate federal law per the
Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. 1331, et. seq.; the general
maritime law; and the Longshore and Harbor Workers’ Compensation Act.
Although the plaintiff argues his claim for negligent inspection/misrepresentation
claim falls under Louisiana law – pursuant to OCSLA – he specifically argues that
no matter which law applies, he states a claim against Zurich for negligent inspection
if Zurich or someone on its behalf conducted an inspection, discovered a defective
condition, and did nothing about it to prevent the decedent’s fatal injuries. Zurich
inspection/misrepresentation would fall under Louisiana law, and it is within this
context that the instant motion is considered.
In its amended complaint, plaintiff alleges the following with respect to
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• “Lifeboat 6 was . . . being maintained and inspected by
• “Defendants, Shell Offshore, Inc., Palfinger Marine USA, Inc.,
and/or Zurich/Inspector, were responsible for the safe operation
of the lifeboat, maintenance and/or inspection of the lifeboat, the
safe execution of the lifeboat safety exercise/test, and owed the
deceased a general duty to provide a safe working environment.
The Defendants were negligent in failing to safely carry out these
duties, leading to the death of Gary Marcel.”
• “In addition, Defendants, Shell Offshore, Inc. and/or
Zurich/Inspector, were negligent in failing to adequately inspect
and/or replace the defective securing hooks, cables and davits.”
• “Defendants, Shell Offshore, Inc., Palfinger Marine, USA, Inc.,
and Zurich/Inspector Company, were negligent in failing to
provide Gary Marcel adequate lifesaving equipment and safety
equipment during the lifeboat safety exercise/test that ultimately
resulted in his death.”
• “At all times pertinent hereto, Zurich American Insurance
Company (Zurich/Inspector), inspected and/or caused to have an
inspection done on the lifeboats and cables made at issue herein
and upon finding said defects, failed to warn or have the
defective cables/boat repaired/replaced.”
Plaintiff’s claim is premised on the theory that if Zurich inspected the cables,
hooks, davits, davit systems, or other mechanisms of the lifeboat, and either
determined that such systems were faulty or failed to determine that they were faulty,
the plaintiff has a cause of action for direct negligence against Zurich under
Louisiana law. The plaintiff alleges that Zurich did indeed perform an inspection,
or commissioned another party to conduct an inspection on its behalf. In opposing
Zurich’s motion to dismiss, plaintiff claims that he “became aware of this possible
claim via oral representations, but [p]laintiff has had no opportunity to perform
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discovery since an answer by Zurich as Palfinger's insurer was just filed on
September 25, 2020.” In support of his argument, the plaintiff attaches to his brief
what appears to be a printout from the Zurich website, which indicates that Zurich
has a “Risk Assessment” Division within the company. Plaintiff alternatively asserts
that, rather than dismissing his direct negligence claims against Zurich, the Court
should grant plaintiff’s request for leave to amend his complaint to state his claims
with more particularity.
Zurich argues that the plaintiff has alleged no facts that support his allegations
that Zurich actually inspected the lifeboat systems or had a duty to inspect them.
With respect to its Risk Assessment Division, Zurich argues that the plaintiff has not
specifically alleged that risk assessment services were provided to the lifeboat at
issue in this case. Furthermore, Zurich argues that even if it had inspected the
lifeboats at issue, which it denies, it would have done so as an alleged insurer of
Palfinger. Zurich argues that its only connection to this matter is through its capacity
as the alleged insurer of Palfinger, that it has answered the suit in that capacity, and
that any claims alleged against it directly for its own actions or inactions are not
Louisiana law recognizes the tort of negligent misrepresentation,
encompassed within Articles 2315 and 2316 of the Louisiana Civil Code. See Barrie
v. V.P. Exterminators, Inc., 625 So. 2d 1007, 1014–15 (La. 1993) (“LSA–C.C. arts.
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2315 and 2316 are sufficiently broad to encompass a cause of action for negligent
misrepresentation.”) (internal citations omitted), citing Devore v. Hobart Mfg. Co.,
367 So.2d 836, 839 (La. 1979). The approach of appellate courts in the negligent
misinformation cases has been to integrate the tort doctrine into the duty/risk
analysis. These cases conclude that for the cause of action to arise -- whether
plaintiff is a third party or a party to the contract or transaction -- there must be a
legal duty on the part of the defendant to supply correct information, there must be
a breach of that duty, and the breach must have caused plaintiff damage. See Cagle
v. Loyd, 617 So.2d 592 (La. App. 3rd Cir. 1993), writ den., 620 So.2d 877 (La.1993);
Pastor v. Lafayette Bldg. Ass'n, supra; Payne v. O'Quinn, supra; Josephs v. Austin,
supra; Beal v. Lomas and Nettleton Co., supra; Braydon v. Melancon, 462 So.2d
262 (La. App. 1st Cir. 1984); Mills v. Ganucheau, 416 So.2d 361 (La. App. 4th Cir.
1982). The Louisiana Supreme Court determined that this case by case employment
of the duty/risk analysis is the appropriate standard in this state for determining legal
responsibility for negligent misrepresentations. Barrie, 625 So.2d at 1015, citing
Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984). In Barrie, the
court explained the application of this legal theory in the context of third-parties and
lack of privity of contract:
More pertinently, in cases where privity of contract is absent but there
is communication of the misinformation by the tortfeasor directly to the
user or the user's agent, they have also found the user is owed a tort
duty. See Payne v. O'Quinn, 565 So.2d at 1054 *1016 [where termite
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inspector delivered a wood destroying insect report to the realtor
representing both vendor and vendee (under the assumption that the
exterminator had no contractual relationship with vendee), held: the
exterminator “assumed a duty to insure the information it provided as
part of its stated obligation as well as that which it volunteered to
provide was correct. Furthermore, that duty encompassed the risk that
a prospective purchaser (Payne) would rely upon the misrepresentation
provided to the realtor, and suffer the damages sustained.”]; Pastor v.
Lafayette Bldg. Ass'n, 567 So.2d at 796 [where a second mortgagee
sued the first mortgagee in connection with the subordination of an
additional amount at the time of the sale of the property, held: the first
mortgagee had no duty to supply any information to the second
mortgagee, a non-client; however, “once it volunteered the information
[directly to plaintiff], it assumed a duty to insure that the information
volunteered was correct.”]; Cypress Oilfield Contractors, Inc. v.
McGoldrick Oil Co., Inc., 525 So.2d at 1162 [when bank wrote to
plaintiff, a non-customer, stating clearly that the financial condition of
one of the bank's customers to whom it had extended credit was not in
jeopardy, held: the bank “assumed a duty to insure that the information
volunteered was correct”].
In sum, Louisiana's case by case development of the tort of negligent
misrepresentation has not been restricted to a set theory. It has been
broadly used to encompass situations of non-disclosure in fiduciary
relationships, to situations of direct disclosure to non-clients.
Adopting one of the common law standards as the sole method for
determining liability for this tort is not necessary. The case by case
application of the duty/risk analysis, presently employed by our courts,
adequately protects the misinformer and the misinformed because the
initial inquiry is whether, as a matter of law, a duty is owed to this
particular plaintiff to protect him from this particular harm.
625 So. 2d at 1015–16 (emphasis added).
Zurich argues that Barrie and the other cases cited by the plaintiff are
inapposite because they involved factual scenarios wherein there was no ambiguity
as to whether the defendant actually performed an inspection of the alleged faulty
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device. Here, Zurich argues the plaintiff has not asserted facts which establish that
Zurich actually performed an inspection at all, and that even if it did, it performed
an inspection in its capacity as the insurer of Palfinger.
This Court is mindful of its duty to accept all well-pleaded facts as true, and
this Court must draw all reasonable inferences in favor of the plaintiff. Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 232–33 (5th Cir.2009); Baker v. Putnal, 75 F.3d
190, 196 (5th Cir.1996). Upon examining the pleadings, however, the Court agrees
that plaintiff has not pled sufficient facts to support its direct negligence claims
against Zurich. Rather than dismiss, the Court will grant plaintiff’s request for leave
to amend his complaint to state its claim more definitely. See Hart v. Bayer Corp.
199 F.3d 239, 247 n. 6 (5th Cir. 2000)(a court should generally avoid dismissing a
claim “without granting leave to amend, unless the defect is simply incurable or the
plaintiff has failed to plead with particularity after being afforded repeated
opportunities to do so.”). Zurich will be allowed to reurge its motion after the filing
of plaintiff’s amended complaint, if such motion is deemed warranted.
Considering the foregoing,
IT IS ORDERED that plaintiff’s request for leave to amend his complaint is
GRANTED. Plaintiff shall file his amended complaint within 10 days of the filing
of this Order.
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IT IS FURTHER ORDERED that the Motion to Dismiss for Failure to State
a Claim [Doc. 20] filed by defendant Zurich American Insurance Company
(“Zurich”) is DENIED without prejudice to its right to reurge its motion in response
to plaintiff’s amended complaint, if deemed warranted.
THUS DONE AND SIGNED this 7th day of January, 2021, at Lafayette,
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