Randy J. Gary v. Moncla Well Services, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-377

RANDY J. GARY

VERSUS

MONCLA WELL SERVICE, ET AL

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 56627
HONORABLE WILLIAM D. HUNTER, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED.

J. Bryan Jones, III
P.O. Box 8841
Lake Charles, LA 70606
Counsel for Plaintiff-Appellant
Randy J. Gary

Whit M. Cook, II
7910 Wrenwood Blvd., Suite A
Baton Rouge, LA 70809
Counsel for Plaintiff-Appellant
Randy J. Gary

Frank K. Neuner
James D. Hollier
P.O. Drawer 52828
Lafayette, LA 70505
Counsel for Defendant-Appellee
Schlumberger Well Services

PAINTER, Judge.

Plaintiff, Randy J. Gary, appeals the trial court’s dismissal of Schlumberger

Well Services (Schlumberger) based on a finding, pursuant to a motion for summary

judgment, that Schlumberger did not owe a duty to Plaintiff to protect him from the

injury incurred.

FACTS AND PROCEDURAL HISTORY

In written reasons for judgment, the trial court correctly outlined the underlying

facts of the case as follows:

Gary, a floorhand employed by Westbay Contracting Corporation
(‘Westbay’), sustained an accident on May 7, 1995 while disassembling
a lubricator with two of his fellow crew members. Although he was a
Westbay employee, Gary had worked under contract for Moncla Well
Services (‘Moncla’) for many years and considered himself to be a
member of the Moncla drilling crew. Moncla had been hired by
Marshall Petroleum, the operator of the well, to provide a drilling rig
and crew at this location. Marshall had also contracted with
Schlumberger to provide well evaluation services on the rig. There was
no contract between Schlumberger and Moncla.

Gary’s accident occurred as the crew was disassembling a
lubricator while it was suspended from a catline. The lubricator, a
pressure control device comprised of three sections, had been used by
Schlumberger during its operations on the rig earlier that day.
Schlumberger rented the lubricator from McLo Rentals and the rental
fee included the cost for McLo to transport, assemble and disassemble
the lubricator at the well site. Although McLo had been paid to
disassemble the lubricator, the Moncla crew gratuitously performed this
job without any request from Schlumberger. No one from Schlumberger
was involved in disassembling the lubricator with Gary and his fellow
crew members. At the time of the incident, the Schlumberger crew had
left the drill floor and was disassembling their equipment in another area
of the well site.

Gary filed suit against Moncla and Schlumberger. Schlumberger filed a third

party demand against Marshall Petroleum. Moncla filed a third party demand against

Westbay, and when that claim was sent into arbitration, it filed a petition for

declaratory judgment asking the trial court to quantify Westbay’s fault for purposes

of an arbitration proceeding pending between Moncla and Westbay. In September

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1999, Moncla obtained a summary judgment dismissing Gary’s claims against it

pursuant to a statutory employer defense. Schlumberger filed a motion for summary

judgment asserting that no material issue of fact remained because it owed no legal

duty to supervise the activity which resulted in Gary’s injury. The trial court

dismissed Gary’s claim against Schlumberger in July 2001, giving written reasons as

follows, in pertinent part:

Louisiana law requires that the defendant owe the injured party a
duty in order to prevail on a negligence claim. As a result, Gary must
establish “by contract, statute, jurisprudence or otherwise” that
Schlumberger owed him a duty under these facts. Faucheaux v.
Terrebonne Consol. Government, 615 So.2d 289, 292 (La. 1993); Brow
v. Allstate Indem. Co., 99-2319 (La. App. 1 Cir. 11/3/00), 771 So.2d
268, 272; Hardenstein v. Cook Const., Inc., 96-829 (La. App. 1 Cir.
2/14/97), 691 So.2d 177. Gary contends that Schlumberger was at fault
because it failed to supervise and provide instruction to the Moncla crew
during the disassembly of the lubricator. Gary also alleges fault by
Schlumberger for failing to warn the Moncla crew of the potential
dangers involved with disassembling the lubricator.

The Court finds that Schlumberger owed no legal duty to Gary to
assure that the disassembly process was performed safely.
Schlumberger was not contractually required to supervise the work
performed by the Moncla crew or warn them of any potential dangers
involved in the disassembly of the lubricator. Additionally,
Schlumberger did not possess any operational control over the work
being performed by the Moncla crew and Schlumberger did not direct
the manner in which the lubricator was taken apart. Further, the Moncla
toolpusher and driller both testified that the Moncla crew did not require
any supervision from Schlumberger with respect to disassembling the
lubricator nor did they give Schlumberger any indication that they were
incapable of safely performing this task prior to the incident. Finally,
even Gary conceded that it was considered the Moncla drilling crew’s
customary task to disassemble the lubricator.

The Court, finds that based on the undisputed facts of this case,
there is no legal duty owed to the plaintiff on the part of Schlumberger,
and because the issue of whether a duty is owed is a question of law,
summary judgment is appropriate. Mundy v. Dept. of Health and
Human Res., 620 So.2d 811 (La. 1993). For these reasons, and based
upon the law, the evidence, the briefs and exhibits submitted by the
parties, and the argument of counsel, it is ordered that all claims asserted
by Randy Gary against Schlumberger are dismissed with full prejudice,
with plaintiff to bear all costs.

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In January 2002, a judgment was entered dismissing Schlumberger’s third party

demand against Marshall Petroleum. In September 2006, a judgment was entered

dismissing Moncla’s third party demand against Westbay, apparently on the grounds

of abandonment. In October 2006, Gary filed a motion for a devolutive appeal

asserting that the trial judge was incorrect in finding that Schlumberger has no legal

duty. Schlumberger moved to dismiss the appeal as untimely. This court overruled

that motion finding the appeal to be timely. We now consider the merits of Gary’s

appeal.

DISCUSSION

On appeal, Gary asserts that the trial court erred in finding that Schlumberger

did not owe a duty to supervise and train the crew that disassembled the lubricator.

Summary judgments are reviewed by appellate courts de novo.
Supreme Serv. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827
(La.5/22/07), 958 So.2d 634. A motion for summary judgment is
properly granted if there is no genuine issue of material fact and the
mover is entitled to judgment as a matter of law. La.Code Civ.P. art.
966; Travelers Ins. Co. v. Joseph, 95-200 (La.6/30/95), 656 So.2d 1000.

Hebert v. Clarendon Am. Ins. Co., 07-992, p. __ (La.App. 3 Cir. 6/4/08), 984 So.2d

952, 954, writ denied, 08-1508 (La. 11/10/08), 996 So.2d 1068.

The question of whether a duty is owed is one of law. Rando v. Anco

Insulations, Inc., 08-1163 (La. 5/22/09), ___ So.2d. ___. “‘[W]hen an appellate court

reviews a question of law the standard of review is simply whether the lower court’s

interpretive decision is correct.’ Johnson v. Calcasieu Parish Sheriff’s Dept.,

06-1179, p. 3 (La.App. 3 Cir. 2/7/07), 951 So.2d 496, 499.” Hebert, 984 So.2d at

954.

Here, as in Hebert, there are no factual disputes before us. Therefore, “we

review whether the lower court’s interpretive decision was correct and whether

[Schlumberger] was entitled to judgment as a matter of law.” Id.

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In deciding whether to impose a duty in a particular case, the court must
make a policy decision in light of the unique facts and circumstances
presented. The inquiry is whether the plaintiff has any law (statutory,
jurisprudential, or arising from general principles of fault) to support the
claim that the defendant owed him a duty.

Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627, 632-33.

quoted in Rando v. Anco Insulations, Inc., 08-1163, p. (La. 5/22/09), ___ So.2d ___.

After reveiwing the record, we conclude that the trial court was correct in

finding that Schlumberger owed no legal duty to Plaintiff. There is no suggestion

that Schlumberger owed any statutory duty. We find no jurisprudence which requires

imposition of a duty under the circumstances of this case. It is undisputed that

Schlumberger had no contract with Moncla or Westbay. Further, the record supports

the conclusion that the contract between Schlumberger and McLo required McLo to

disassemble the lubricator, in spite of Plaintiff’s allegations to the contrary in brief.

It is undisputed that Schlumberger did not ask the Moncla crew to disassemble the

lubricator and that Schlumberger did not participate in the disassembly. Two Moncla

supervisors testified that the crew did not need supervision from Schlumberger and

that the crew had previously disassembled similar equipment. We can find no

jurisprudence which suggests that Schlumberger took on a duty to the Moncla crew

by the act of using the lubricator at some point prior to its disassembly.

Accordingly, we affirm the trial court’s dismissal of Schlumberger pursuant to

its motion for summary judgment.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to Plaintiff, Randy J. Gary.

AFFIRMED.

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