Jacob Puderer v. Hilcorp Energy Company, Northcoast Oil Company and the State of Louisiana Through the Department of Natural Resources

JACOB PUDERER * NO. 2020-CA-0383

VERSUS *
COURT OF APPEAL
HILCORP ENERGY *
COMPANY, NORTHCOAST FOURTH CIRCUIT
OIL COMPANY AND THE *
STATE OF LOUISIANA STATE OF LOUISIANA
THROUGH THE *******
DEPARTMENT OF NATURAL
RESOURCES

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 62-597, DIVISION “A”
Honorable Kevin D. Conner, Judge
******
Judge Terri F. Love
******
(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge
Edwin A. Lombard)

Christine L. DeSue
ATTORNEY AT LAW
3445 N. Causeway Blvd.
Suite 505
Metairie, LA 70002

COUNSEL FOR PLAINTIFF/APPELLANT

Kevin P. Merchant
Phillip M. Smith
NEUNERPATE
One Petroleum Center, Suite 200
1001 West Pinhook Road
Lafayette, LA 70503

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
MARCH 24, 2021

TFL

JFM
This is a maritime tort case. Appellant, Jacob Puderer, filed a negligence
EAL
suit against Appellee, Hilcorp Entergy Co. (“Hilcorp”), alleging Hilcorp was liable

to Appellant for damages resulting from an allision between Appellant’s boat and

an underwater obstruction under Hilcorp’s care, custody, and control. Hilcorp

disputed any ownership or lease interest in the allision site or control over the

underwater obstruction and filed a motion for summary judgment. Appellant

appeals the district court’s judgment granting Hilcorp’s motion for summary

judgment. Finding that Appellant failed to raise genuine issues of material fact as

to Hilcorp’s ownership, placement, or control over the underwater obstruction, we

affirm the summary judgment.

FACTUAL AND PROCEDURAL HISTORY

Mr. Puderer owned a commercial fishing boat. He authorized Eric Tiser to

operate the boat. On or around November 12, 2014, Tiser went trawling for

shrimp in appellant’s boat in Township 22-S, Range 30-E, Section 17 (“Township

22-S”) when the boat hit a submerged underwater obstruction in the late afternoon.

1

Tiser stated that the boat caught onto the unseen obstruction and that at one point,

the combination of high winds and the weight of the boat pulled the obstruction out

of the water. He stated that he was able to identify the obstruction as a wellhead

with spindles that the boat’s shrimp trawling equipment had stuck on. Tiser was

able to free the boat after two or three hours, but it flooded and eventually sank

somewhere between Tante Phine and Red Pass.

Mr. Puderer notified Hilcorp of the incident. Hilcorp sent its production

foreman, Shane Ferguson, to the allision site identified by Mr. Tiser. Ferguson met

with Tiser and “Joe,” the boat’s deckhand, about a day or two after the incident.

Based on the GPS coordinates and information provided by Tiser, Ferguson

marked the allision site with a PVC pole and completed an incident report.1

Ferguson also accompanied Mr. Puderer to the location of the sunken boat and

took photographs. On the same day, Hilcorp retained JRon Services Site Survey, a

third-party dive service company, to survey the allision site. JRon’s report

concluded that a handrail was the only object that was above the mudline at the

time of their survey which could have allided with the boat.

Mr. Puderer filed suit against Hilcorp, contending that Hilcorp was liable in

tort for damages resulting from the loss of his boat. Mr. Puderer alleged Hilcorp

held a lease in Township 22-S which encompassed the allision site and therefore,

was responsible for maintaining any wellheads and/or underwater structures on or

1
Appellant signed the incident report as the boat’s owner. Tiser and Joe “the deckhand” were
listed as “witnesses” on the report.

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around the site. Hilcorp denied the allegations. After Tiser’s deposition and the

parties exchanged discovery, Hilcorp filed a motion for summary judgment.

Hilcorp’s support for its motion for summary judgment included an affidavit

from Max Douglas Weaver, its Chief Operations Engineer (“COE”). The COE’s

affidavit attested that Hilcorp was not the owner or lessee of any of the property

Appellant identified as the allision site in his coordinates2, nor did it own, control,

place, maintain, have knowledge of, or derive any benefit from the alleged

underwater obstruction that struck Mr. Puderer boat.3

2
Appellant and Tiser presented Hilcorp with three sets of coordinates as the allision site.
Ultimately, Appellant represented that the correct coordinates were N 29.10.980, W 089.790.
3
The affidavit of the COE attested, in relevant part, to the following:

3.

Hilcorp Energy Company does not hold any ownership or lease interest in any
property located at any of the following coordinates: 1) N 29° 10’58.5”, W 89°
26’ 47.5”; 2) N 29.10. 989, W 089.26.790; 3) N 29.10.980, W 089.26.790.

4.

Hilcorp Energy Company did not hold any ownership or lease interest in any
property located at any of the following coordinates in November 2014: 1) N 29°
10’58.5”, W 89° 26’ 47.5”, 2) N 29.10.989, W 089.26.790; 3) N 29.10.980, W
089.26.790.

5.

Hilcorp Energy Company does not own anything in the waters located at any of
the following coordinates: 1) N 29° 10’58.5”, W 89° 26’ 47.5”; 2) N 29.10.989,
W 089.26.790; 3) N 29.10.980, W 089.26.790.

6.

Hilcorp Energy Company does not control anything in the waters located at any
of the following coordinates: 1) N 29° 10’58.5”, W 89° 26’ 47.5”; 2) N
29.10.989, W 089.26.790; 3) N 29.10.980, W 089.26.790.

7.

Hilcorp Energy Company has not placed anything in the waters located at any of
the following coordinates: 1) N 29° 10’58.5”, W 89° 26’ 47.5”; 2) N 29.10.989,
W 089.26.790; 3) N 29.10.980, W 089.26.790.

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Mr. Puderer countered that a genuine issue of material fact remained as to

whether the allision site and the underwater obstruction were leased, maintained,

and/or controlled by Hilcorp. In support of this argument, Mr. Puderer attached

affidavits from Glenn Fleming, an abstractor, and his attorney, Christine L. DeSue.

Their affidavits represented that a public records search documented that the

original lease held by the Buras Levee District containing Township 22-S was

assigned to Chevron, which in turn assigned all of its leases in Township 22-S to

Hilcorp. Mr. Puderer’s individual affidavit detailed the coordinates of the allision

site and the area where his boat sank and declared, in part, that “[a]fter the

incident, Hilcorp went back to the site and cleaned up any obstructions that were

hanging up boats in the water.4”

At the hearing on Hilcorp’s summary judgment motion, questions were

raised as to whether Ferguson had identified a wellhead at the time he placed the

8.

Hilcorp Energy Company has not maintained anything in the waters located at
any of the following coordinates: 1) N 29° 10’58.5”, W 89° 26’ 47.5”; 2) N 29.
10.989, W 089.26.790; 3) N 29.10.980, W 089.26.790.

9.

Hilcorp Energy Company has not received any benefit from anything in the
waters located at any of the following coordinates: 1) N 29° 10’58.5”, W 89° 26’
47.5”; 2) N 29.10.989, W 089.26.790; 3) N 29.10.980, W 089.26.790.

10.

Prior to November 12, 2014, Hilcorp Energy Company had no knowledge of and
was not notified of the existence of a wellhead located underwater at any of the
following coordinates: 1) N 29° 10’58.5, W 89° 26’ 47.5”; 2) N 29.10.989, W
089.26.790; 3) N 29.10.980, W 089.26.790.
4
Appellant also attested that “I personally took Shane Ferguson, a representative of Hilcorp, to
the allision site the day after the incident.”

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PVC pipe marker at the allision site. The district court held the record opened on

the motion for the parties to depose Ferguson.

Ferguson testified at his deposition that he saw “nothing but water” at the

allision site where he had placed the PVC pipe marker. He asserted that to his

knowledge, Hilcorp had no equipment, well locations, or other operations in the

allision area. Ferguson stated that JRon, the diving service, only surveyed the

allision area and did not remove debris.

Hilcorp supplemented its motion for summary judgment with Ferguson’s

deposition. Hilcorp argued that Ferguson’s deposition reinforced its COE’s

affidavit that Hilcorp had no operations in the allision site or exercised any control

over the submerged underwater obstruction.

Mr. Puderer supplemented its opposition with affidavits from Mike Dardar

and Mark Franovich, other persons who went to the allision site. Dardar, a vessel

operator in the area, asserted that on the day following the allision, Mr. Puderer

and others were on Dardar’s boat near the PVC pipe marker when Dardar’s boat

also got “hung up” on iron. Dardar stated that the man who freed Dardar’s boat

felt a valve. Franovich, a diver, went with Mr. Puderer to the site two weeks after

the allision. Franovich attested that he went into the water and discovered a

“Christmas-tree” style wellhead with valves, grating and casing for a well, and

hand-rails. Mr. Puderer maintained that Dardar’s and Franovich’s affidavits

created fact issues that countered Ferguson’s deposition testimony that Ferguson

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saw nothing in the water and also indicated that the underwater obstruction may

have been a wellhead, rather than a hand-rail as identified in JRon’s report.

After a second hearing, the district court granted Hilcorp’s motion for

summary judgment with prejudice. The judgment held, in relevant part, that:

IT IS ORDERED, ADJUDGED, AND DECREED that the Motion
for Summary Judgment brought by defendant, Hilcorp Energy
Company, is Granted, as plaintiff Jacob Puderer has failed to meet
his burden of showing that the alleged underwater obstruction on
which his vessel was caught was owned by or under the control of
Hilcorp Energy Company.

This devolutive appeal followed.

DISCUSSION

Summary Judgment

This Court discussed the appellate court’s review of the propriety of

summary judgment relief in Simmons v. State, 18-0174, pp. 3-4 (La. App. 4 Cir.

8/29/18), 255 So. 3d 701, 703-04, as follows:

“An appellate court reviews the granting of a motion for summary
judgment with the de novo standard of review.” Filmore Parc
Apartments II v. Foster, [20]16-0568, pp. 3-4 (La. App. 4 Cir.
2/15/17), 212 So.3d 621, 624. This Court uses “the same criteria that
govern the trial court's consideration of whether summary judgment is
appropriate, i.e., whether there is a genuine issue of material fact and
whether the mover is entitled to judgment as a matter of law.”
Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., [20]06-
1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. “In determining whether
an issue is ‘genuine,’ courts cannot consider the merits, make
credibility determinations, evaluate testimony or weigh evidence.”
Smith v. Our Lady of the Lake Hosp., Inc., [19]93-2512, p. 27 (La.
7/5/94), 639 So.2d 730, 751.

In summary judgment, “[t]he burden of proof rests with the mover.” La.

C.C.P. art. 966(D)(1). However, in the event the mover does not bear the burden

of proof at trial, “the mover’s burden on the motion does not require him to negate

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all essential elements of the adverse party’s claim . . . , but rather to point to the

absence of factual support for one or more elements essential to the adverse party’s

claim . . .” Id. The burden of proof then shifts to the adverse party “to produce

factual support sufficient to establish the existence of a genuine issue of material

fact or that the mover is not entitled to summary judgment as a matter of law . . .

All evidence and inferences drawn from the evidence must be construed in the

light most favorable to the party opposing the motion.” Id.

Conversely, “[summary judgment] should be denied if there is (1) a genuine

issue of fact and (2) it is material to the case”. Brown v. B&G Crane Service, Inc.,

172 So. 2d 708, 710 (La. 1965). Genuine issues are those which reasonable

persons could disagree on and thus require a trial to resolve. Smith v. Our Lady of

the Lake Hosp., Inc., 93–2512, p. 27 (La. 7/5/94), 639 So. 2d 730, 751. Facts are

material if they would matter in a trial on the merits because they would ensure or

prevent recovery, affect a party’s success, or otherwise determine the outcome of

the case. Id.

Appellate courts review summary judgment de novo, using the same criteria

that govern the trial court's consideration of whether summary judgment is

appropriate.

Assignment of Error

Appellant’s sole assignment of error contends Hilcorp was not entitled to

summary judgment because Appellant presented genuine issues of material fact as

to: (1) whether the allision site was within an area leased by Hilcorp; and (2)

Hilcorp’s ownership and/or control over the underwater obstruction.

The parties agree that general maritime law governs this negligence action

because the alleged tortious incident occurred in navigable waters. Established

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maritime jurisprudence provides that a private party, such as a defendant mineral

lessee, assumes liability for damages resulting from an allision of a boat with an

obstruction in navigable waters only when it has ownership, custody, or is

responsible for the placement of the structure in navigable waters. See Creppel v.

Shell Oil Co., 738 F.2d 699, 701 (5th Cir. 1984).

In Creppel, the plaintiff’s shrimp boat struck an object in navigable waters

leased by the defendant’s oil company. An employee of the defendant testified at

trial that the company was aware of the object’s existence and that he had warned

his employer of danger posed by the object. At the close of trial, the jury received

instructions regarding the negligence claim that summarized the defendant’s duty

to the plaintiff in terms of “whether it acted as a ‘reasonably prudent person’ would

do under the same or similar circumstances”. Id. at 700. The appellate court found

that this instruction was improper, as it would impose liability on lessees for

objects found within their lease regardless of whether they owned, placed, or

maintained the objects in question. The court also dismissed the idea that notice of

an obstruction would suffice to create a duty to clear waterways covered by their

mineral leases. Id. at 698. The court reversed the judgment against the mineral

lessee, reasoning that:

[W]e find no basis in federal regulations or applicable
federal or maritime law to impose upon a mineral lessee
a duty to police the waters covered in its lease or to take
steps to remove obstructions which it does not own, has
not placed there, or does not maintain or control.

Id. at 702.

Here, Hilcorp’s COE affidavit, which denied any form of control over the

underwater obstruction, shifted the burden of proof to Appellant. Accordingly, in

our review of Hilcorp’s entitlement to summary judgment, this Court must

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determine if Appellant offered sufficient evidence to establish the existence of

genuine issues of material fact to rebut Hilcorp’s denial of its ownership, custody,

or placement of the alleged obstruction in the allision site’s navigable waters.

We first review Appellant’s argument that he presented facts to dispute

Hilcorp’s claim that it held no lease covering the allision site. Appellant points to

the affidavits of the abstractor and his attorney to demonstrate that Appellee was

assigned all of Chevron’s leases in the waterway where the allision occurred.

Appellant additionally argues that because of the lease assignment from Chevron,

Appellee had notice of the existence of the obstruction. As referenced in Smith v.

Our Lady of the Lake Hosp., a material fact is one that is essential to plaintiff’s

cause of action under plaintiff’s theory of recovery. Creppel, which controls in the

present matter, conclusively establishes that Appellant’s right to recover against

Hilcorp hinges on Hilcorp’s ownership, custody, or placement of the alleged

obstruction in the waterway, not its status as a mineral lessee or its notice of the

alleged obstruction. Creppel also holds that there is “no basis in federal maritime

law, however, for assigning to Shell the duty to clear its maritime leases of all

obstructions of which it has notice, regardless of whether it owns or has placed the

obstruction there or maintains them”. Creppel, 738 F.2d at 701. In Creppel, the

allision took place in waters covered by the defendant’s mineral lease with an

underwater obstruction. At trial, an employee of the defendant stated he had

notified his employer of the existence of the obstruction and the danger it posed.

Id. at 700. Notwithstanding those facts, the court found that the defendant mineral

lessee did not owe a duty to the plaintiff without direct proof of the defendant’s

ownership, custody, or placement of the obstruction. Id.

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Even if Appellant here had offered conclusive evidence of Appellee’s

mineral lease over the allision site and/or notice of the obstruction therein, this

would not ensure Appellant’s recovery or otherwise have an effect on the outcome

of the case. Consequently, the questions of whether Hilcorp holds a lease over the

site and accordingly had notice of the obstruction are not material facts and

Appellant’s argument that Hilcorp was not entitled to summary judgment because

of the alleged lease lacks merit.

Appellant further contends that the contradiction between the Dardar and

Franovich affidavits and Ferguson’s deposition testimony create a genuine issue of

material fact as to the existence of the alleged wellhead that can only be resolved at

trial. However, standing alone, the existence of the obstruction in the vicinity of

Appellee’s operations is another non-material fact which has no outcome on

Appellant’s case without evidence linking the obstruction to Appellee. See Guidry

v. Apache Corp. of Delaware, 236 Fed. Appx. 24, 25 (5th Cir. 2007), 2007 WL

1577923, *1.

Accordingly, we now consider Appellant’s argument that fact issues

regarding Hilcorp’s ownership, control, or placement of the underwater obstruction

prohibited summary judgment. In this argument, Appellant maintains that the

Dardar and Franovich affidavits established that the obstruction was a wellhead in

an area leased by Hilcorp; and moreover that Appellant’s affidavit and Tiser’s

deposition testimony5 demonstrated Hilcorp exerted its control and/or maintenance

5
Tiser’s deposition testimony included the following:

Q. So you don’t have any of the items that you would have hung up on?

***

A. No, ma’am. Hilcorp’s got them.

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of the wellhead by its return to the allision site to clean up debris and/or

obstructions.

Appellant argues the facts of this case align with Savoie v. Chevron Texaco,

04-1302, 2005 WL 2036740 at *5 (E.D. La. July 22, 2005), where the federal

district court denied the motion for summary judgment of the defendant, Chevron

Texaco. As in the present matter, Chevron Texaco contended that plaintiffs had

failed to offer evidence that it owned and/or controlled the underwater obstruction

-believed to be pilings and a pipeline-that allegedly struck plaintiff’s boat and only

conceded to having operations in the vicinity of the allision. The plaintiffs

opposed summary judgment with a claim that the plaintiff was shown photographs

by Chevron Texaco representatives of pilings that had been removed from the

allision site to a Chevron Texaco camp and deposition testimony from a former

Chevron Texaco employee who saw the pilings at a Texaco Chevron camp

sometime after the accident. Plaintiffs also asserted that Chevron Texaco had not

fully cooperated with plaintiffs’ discovery demands. The district court concluded

Q. I’m going to assume that’s an assumption.

A. No. They have them.

Q. Have you seen them?

A. They picked them up. They picked them up on the barge, on a diving barge.

Q. Did you watch them picking items up?

A. I watched them go down there.

Q. You watched them go down there?

A. Yes, ma’am

Q. But you didn’t see them actually doing any work?

A. No. No. Well, I’m just going by hearsay what my podners [sic] told me that
worked out there.

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that, drawing all inferences most favorable to the non-movant, the plaintiffs’

opposing evidence was sufficient to create a genuine issue of material fact

regarding Chevron Texaco’s responsibility for the submerged objects at issue.

Appellant suggests this Court should reach a similar result. Nonetheless, we

find the facts in Savoie distinguishable from the case at bar. Although in both

cases a defendant mineral lessee only conceded to having operations in the vicinity

of plaintiff’s allision with an underwater obstruction, the plaintiff in Savoie offered

corroborating evidence to establish a genuine issue of material fact regarding the

defendant’s ownership, placement or control over the obstruction. Here, unlike in

Savoie, Appellant failed to offer any corroborating evidence from a Hilcorp

employee or any other independent source to establish Hilcorp’s ownership,

placement, or control over the underwater obstruction. Instead, Appellant relied on

his affidavit and Tiser’s deposition testimony to contend that Hilcorp’s alleged

removal of objects and debris from the allision site demonstrated its control over

the wellhead/obstruction. However, neither Appellant’s’ affidavit nor Tiser’s

deposition testimony documents this contention. In particular, Appellant did not

attest that he directly witnessed Hilcorp’s clean-up of the allision site or removal of

objects. Similarly, Tiser did not testify that he witnessed any Hilcorp

representatives pick up or remove objects from the allision site. Rather, close

scrutiny of Tiser’s deposition testimony reveals that he was “just going by hearsay

what my podners [sic] told me that out worked there.” In further contrast to

Savoie, here, the summary judgment hearing was held open to allow the parties to

supplement the record with additional discovery evidence, yet appellant did not

attach any affidavits or sworn statements from Tiser’s associates who allegedly

viewed the cleanup. Proof which consists of mere speculation and conclusory and

12

unsubstantiated allegations is not sufficient to overcome summary judgment. See

Enclade v. A.H.G. Solutions, LLC, 16-0357, p. 13 (La. App. 4 Cir. 11/16/16), 204

So. 3d 661, 668 (citations omitted).

Furthermore, while the plaintiffs in Savoie overcame summary judgment at

the outset of the case through a showing of corroborating evidence that raised

genuine issues of material fact as to the link between defendant and the alleged

obstruction, the district court ultimately did grant summary judgment to the

defendant after discovery directly controverted that corroborating evidence and

plaintiff failed to produce any other evidence that the defendant placed, owned, or

controlled the alleged obstruction. See Savoie v. Chevron Texaco, No. 04-1302,

2006 WL 2795460, *2-3 (E.D. La. Sept. 27, 2006) (“Savoie III”). Without that

corroborating evidence, the present case more closely resembles the final decision

in Savoie.

Finally, even if Hilcorp had removed objects or worked in the general area

of the allision, this fact would not, on its own, provide proof of ownership or

control over the obstruction for purposes of defeating summary judgment. See

Luke v. Hilcorp Energy Co., No. 14-1549, 2015 WL 1810786, *2 (E.D. La. Apr.

20, 2015), where the district court granted defendants’ motions for summary

judgment, finding that evidence showing defendants may have worked or removed

piling from the general area where the plaintiff struck a submerged object was

insufficient to show ownership or control.

Based on our de novo review, construing evidence in the light most

favorable to Appellee, the record substantiates that Appellant presented no

countervailing factual support to contest Appellee’s COE affidavit that it did not

own or control the underwater obstruction that allided with Appellant’s boat.

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Accordingly, Appellant cannot prove an essential element of recovery to show

Hilcorp’s liability for his damages.

CONCLUSION

For the above-mentioned reasons, we find Appellant failed to meet his

burden of proof regarding the existence of genuine issues of material fact that

would preclude Hilcorp’s entitlement to summary judgment. As such, the

judgment of the district court is affirmed.

AFFIRMED

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