Bryan v. Shell Offshore Inc. , 179 F. App'x 906 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 11, 2006
______________________
No. 05-30656 Charles R. Fulbruge III
Clerk
______________________
DIRKSHAWN BRYAN; MAXINE BRYAN
Plaintiffs-Appellants
and
ACE AMERICAN INSURANCE CO.
Intervenor Plaintiff-Appellant
versus
SHELL OFFSHORE INC.; ET AL
Defendants
SHELL OFFSHORE INC.
Defendant-Appellee
___________________________________________________
Appeal from the United States District Court for
the Western District of Louisiana
(03-CV-1239)
___________________________________________________
Before KING, STEWART, AND DENNIS, Circuit Judges.
PER CURIAM:1
Plaintiffs sued seeking compensation for injuries incurred by
Mr. Bryan when, while performing sandblasting and painting
services for a contractor hired by Shell to renovate an offshore
oil platform, he stepped on a wooden deck board which gave way,
causing him to fall. They now appeal the district court’s decision
to grant summary judgment against all claims in their premises
1
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this opinion should not be published and is not precedent except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.
liability suit.
They challenge the district court’s determination that
Chapter 95 of the Texas Civil Practice and Remedies Code applies
and further challenge the district court’s findings that Shell
lacked control and actual knowledge and that therefore has not
incurred liability under TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. We
agree with the district court’s assessment of the record and the
law and therefore affirm.
BACKGROUND
Shell Offshore, Inc. (“Shell”) owns and operates a fixed
production platform in the Gulf of Mexico, off the coast of Texas
on the Outer Continental Shelf (“OCS”), the Shell High Island 350-
A (“HI 350-A” or “the platform”). Shell does not have any of its
own employees working onboard the platform; rather, Greystar
Corporation (“Greystar”) was contracted as the platform operator.
As a part of readying the platform for sale, Shell contracted
with a company called Chet Morrison; the contract included
“[r]epair [of] any holes left or made in the wood deck resulting
from modifications required to install [a] temporary crane, etc.”
1 Rawle 603. While performing that job, Chet Morrison apparently
noted that other boards needed replacing beyond those immediately
referenced in the project; it replaced those additional boards
with Shell’s permission. Shell had also contracted with Salamis
Services (“Salamis”) for sandblasting and painting services to be
performed on the platform, again in preparation for sale. Mr.
Bryan was employed by Salamis on that contract, and was performing
the above tasks when he stepped on a wooden deck board that gave
way; the fall injured his back, neck, and other parts of his body.
He received benefits under the Longshore Harbor Workers’
Compensation Act (“LHWCA”) from Ace American Insurance Co.
(“Ace”), Salamis’s provider.
Mr. Bryan and his wife (“the Bryans”) filed suit in federal
district court in April 2003 against both Shell and Greystar
alleging both negligence and premises liability claims.2 Ace then
filed as intervenor on subrogation grounds. Based on the platform’s
location on the OCS off the Texas coast, the court applied Texas law3
and dismissed the negligence claims, but retained the premises
liability claims.
The parties conducted discovery and twice participated in
unsuccessful mediation. Shell then filed a motion for summary
judgment, arguing that Chapter 95 of the Texas Civil Practice and
Remedies Code applied to shield it from liability. The district
court granted the motion on May 13, 2005, dismissing all of the
plaintiffs’ and the intervenor’s claims with full prejudice. The
Bryans and Ace timely appealed to this court.
STANDARD OF REVIEW
2
The claims against Greystar have since been settled. Mrs.
Bryan’s claims for damages are based on loss of consortium.
3
The Outer Continental Shelf Lands Act, 43 U.S.C. § 1349,
applies to this suit, and “adopts the law of the adjacent state.”
Fruge v. Parker Drilling Co., 337 F.3d 558, 560 (5th Cir.2003).
This court reviews the district court’s summary judgment
ruling de novo. Hanks v. Transcontinental Gas Pipe Line Corp., 953
F.2d 996, 997 (5th Cir. 1992). The court applies the same standard
on appeal as is applied by the district court. Terrebonne Parish
Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002)
(citing Auguster v. Vermilion Parish School Board, 249 F.3d 400,
401 (5th Cir.2001). Summary judgment is appropriate where the
record shows “that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Facts and inferences reasonably drawn
from those facts should be taken in the light most favorable to
the non-moving party. Eastman Kodak Co. v. Image Technical
Services, Inc., 504 U.S. 451, 456 (1992); Huckabay v. Moore, 142
F.3d 233, 238 (5th Cir.1998). Where the non-moving party fails to
establish “the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial,” no genuine issue of material fact exists. Celotex, 477
U.S. at 322-3.
TEX. CIV. PRAC. & REM. CODE ANN. Chapter 95
Chapter 95 of the Texas Civil Practice and Remedies Code was
enacted in 1996 "to provide greater protection for property owners
against both types of premises liability claims." Arsement v.
Spinnaker Exploration Co., LLC, 400 F.3d 238, 245 (5th Cir. 2005);
see also Arsement, 400 F.3d at 249; Dyall v. Simpson Pasadena
Paper Co., 152 S.W.3d 688, 699 (Tex. App. - Houston [14th Dist.]
2004).
Per § 95.002, the chapter's provisions apply to a claim
(1) against a property owner...for personal injury,
death, or property damage to...a subcontractor or an
employee of a... subcontractor; and
(2) that arises from the condition or use of an
improvement to real property where the contractor or
subcontractor constructs, repairs, renovates, or
modifies the improvement.
Even where both of the above requirements are met, however,
liability will not accrue unless
(1) the property owner exercises or retains some control
over the manner in which the work is performed [other
than the right to start or stop work or to inspect]; and
(2) the property owner had actual knowledge of the
danger or condition...and failed to adequately warn.
TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. Both parts of § 95.003 must
be satisfied for liability to be imposed on an owner. Kelly v. LIN
Television of Texas, L.P., 27 S.W.3d 564, 567 (Tex. App. -
Eastland 2000).
ANALYSIS
Plaintiffs allege that the district court erred (1) in
determining that Chapter 95 applied and (2) in determining that
they had not established that Shell met the requirements for
liability under the chapter. We address each issue in turn.
Applicability Of Chapter 95
On appeal, plaintiffs’ arguments focus on (1) whether the
claim arises from the condition or use of an improvement and (2)
whether Salamis was engaged in construction, repair, renovation,
or maintenance.
Appellants argue that the defective wooden deck boards are
the source of the injury, and do not constitute an improvement
under the statute because “his position on the platform, his work
and his services had no relation to the defect.” Appellants’ Brief
at 7. The district court, rather, found that the platform was the
improvement.
Although the Texas Supreme Court has not yet taken up the
issue, the state courts have thus far concluded that Chapter 95
applies in such a situation. In Fisher v. Lee and Chang
Partnership, the plaintiff fell from a ladder, which "provided
appellant a means to reach his work site. It was not the object of
his work. Nevertheless, appellant's injuries arose from ‘the
failure to provide a safe workplace.'" 16 S.W.3d 198, 202 (Tex.
App. - Houston [1st Dist.] 2000) (looking to the plain language of
the statute and the legislative history); see also, Francis v.
Coastal Oil & Gas Corp., 130 S.W.3d 76, 83 (Tex. App. - Houston
[1st Dist.] 2002) ("the injuries must relate to work being done by
the injured party, but the injury-producing defect need not be the
object of the injured party's work."). Moreover, the district
court’s interpretation comports with the approach in Arsement,
where the installation of a sump deck was held to be an
improvement to a platform. Id., 400 F.3d at 242 (describing the
sump deck); Id. at 245 (noting it was undisputed that the sump
deck constituted an improvement). Although the record is not
specific, presumably Mr. Bryan was standing on the deck boards
either because he was on his way to his work site or standing on
them to carry out his work. This court is bound to make its best
determination of what the Texas Supreme Court would do, looking to
the intermediate courts where that body is silent. Howe v.
Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000). Given the
gloss used by numerous intermediate Texas courts and the adoption
of that approach by cases in this circuit, the relationship
between the boards and Mr. Bryan’s work is sufficient such that
the district court did not err in determining that no genuine
issue of material fact existed on this point.
Appellants further argue that the sandblasting and painting
in which Mr. Bryan was engaged in fact constitute maintenance,
rather than the "construction, repair, renovation, or
modification" required by § 95.002(2). The district court refused
to make the distinction, holding instead that the activity
qualified as renovation or repair.
A sampling of Texas court cases offers a wide range of
activities that are treated as repair or renovation, including
repairing a roof-mounted air conditioner; replacement of a
television station antenna; a "washout" of coiled tubing to
increase the flow of gas in a well; filtering mud for drilling to
improve well performance; repairing a leaking flange at a chemical
plant; and working as a "holewatch" and "firewatch" on a large
cleanup contract at a chemical plant. See, respectively, Fisher,
16 S.W.3d at 201; Kelly, 27 S.W.3d at 570; Francis, 130 S.W.3d at
82; Dyall, 152 S.W.3d 688 (which does not discuss the issue but
proceeds to analyze § 95.003); and Phillips v. The Dow Chemical
Co., 186 S.W.3d 121, 131 (Tex. App. - Houston [1 Dist.] 2005). In
an unreported case, Judge Buchmeyer of the Northern District of
Texas held that changing an air filter as a part of a janitorial
services contract did not require sufficient expertise such that
Chapter 95 would apply. Moore v. Howmet Corp., 2005 WL 856852
(N.D. Tex. 2005) at *2.
Qualitatively, sandblasting and painting on an offshore
platform in preparation for sale is closer in nature to the fact
patterns in the various Texas cases cited above. Given the record
before it, and the wide range of activities encompassed by Texas
cases, the district court did not err in determining that there
was no genuine issue of material fact that Mr. Bryan's work
constituted "repair or renovation" such that Chapter 95 applied.
Proving Liability Under Chapter 95
Appellants' second set of arguments assert that Shell should
not receive protection under Chapter 95 because it possessed both
(1) sufficient control over the manner in which the work was
performed and (2) actual knowledge of the danger or condition.
Appellants’ entire argument regarding control is phrased
around whether Shell had actual control over Chet Morrison’s
replacement of the deck boards. To meet their burden under §
95.003, however, appellants needed to raise a genuine question of
material fact as to whether Shell had actual control over
Salamis’s (and by extension, Mr. Bryan’s) contracted performance,
and they have not done so. See Arsement, 400 F.3d at 249 ("[t]he
requisite control factor is narrowly construed: the owner must
control the ‘mode or method' of the contractor's work."); Dyall,
152 S.W.3d at 700-7 (“While it is certainly true that, as the
property owner, Simpson had ‘control’ of its facilities, this is
not the type of ‘control’ of which the statute speaks. Simpson
undoubtedly had the power to sell or lease its property, control
access to its property, to shut down the facilities, etc. However,
the statute speaks of ‘control over the manner in which the work
is performed.’”). The district court was thus correct in finding
that appellants had not shown that Shell retained the requisite
control.
Appellants assert that their evidence that Chet Morrison was
hired to replace the deteriorated board and informed Shell of the
deteriorated board creates a genuine question of material fact as
to Shell's actual knowledge of the condition. The statutory
language, however, and the Texas courts’ interpretation are
uniformly clear that actual knowledge is required. See,
particularly, Dyall, 152 S.W.3d at n.18 (citing Bishop v. Nabisco,
Inc., 2004 WL 832916 at *3 (Tex. App. - Houston [14th Dist.] 2004)
for the proposition that “knowledge that an activity is
potentially dangerous is not sufficient to satisfy the second
prong of Section 95.003 - actual knowledge of the danger is
required.”). The record does not reveal that Shell failed to
address and repair any dangerous condition as to which it had been
informed. A Greystar operator had noticed no deterioration when
surveying the area the morning of the accident. The platform had
been inspected by both Deepwater Specialties and the MMS, neither
of whom identified a problem. While Shell did have notice that
deck boards near the old site of the temporary crane needed
replacing, all boards so identified had been replaced before the
day of Mr. Bryan’s accident. Appellants introduced no further
evidence indicating that Shell had actual knowledge of a
continuing problem. The district court thus properly found no
genuine question of material fact as to whether Shell possessed
the requisite actual knowledge.
CONCLUSIONS
Based on the record and arguments before us, we agree with
the assessment of the district court that no genuine issue of
material fact existed with regard to any of the above issues. The
judgment of the district court is therefore AFFIRMED.