     Case: 12-31222     Document: 00512418822       Page: 1    Date Filed: 10/24/2013




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                       Fifth Circuit

                                                                                FILED
                                                                            October 24, 2013
                                    No. 12-31222
                                                                             Lyle W. Cayce
                                                                                  Clerk
SCOTT JOSEPH DELAHOUSSAYE, individually and on behalf of Dylan
Joseph Delahoussaye,

                                              Plaintiff – Appellant Cross-
                                              Appellee
v.

PERFORMANCE ENERGY SERVICES, L.L.C.; ONE BEACON
INSURANCE COMPANY,

                                              Defendants – Appellees Cross-
                                              Appellants



                 Appeals from the United States District Court
                     for the Eastern District of Louisiana


Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Appellant Scott Joseph Delahoussaye sued several parties, including
Cross-Appellants Performance Energy Services, L.L.C. (“Performance”) and
One Beacon Insurance Company (“One Beacon”), 1 for damages stemming from
personal injury that Delahoussaye sustained while working on a fixed platform
located in the Gulf of Mexico. After the other parties settled, the suit proceeded
to a bench trial, and the district court found Performance 15% at fault for the



      1 Cross-Appellants Performance and One Beacon will be referred to collectively as
“Performance” unless specified otherwise.
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                                 No. 12-31222
accident that caused Delahoussaye’s injury and awarded Delahoussaye, inter
alia, $200,000 in general damages. On appeal, Delahoussaye challenges the
district court’s allocation of fault, while Performance challenges the amount of
general damages that the district court awarded Delahoussaye as well as the
court’s ruling that Performance employee Shalico Andow was not a “borrowed
employee” of another contractor or the platform owner.        We AFFIRM the
judgment allocating liability, but because the award of general damages is
excessive as a matter of law, we VACATE and REMAND the general damages
award and order REMITTITUR.
                              BACKGROUND
      Pisces Energy, LLC (“Pisces”) is the owner of the Mustang Island 739-A
Platform (“Platform”) located in the Gulf of Mexico off the coast of Texas. In
August 2009, Pisces retained several independent contractors to perform work-
over recompletion on the Platform, including Crescent Drilling Foreman, Inc.
(“Crescent”), which provided Richard John Boutte as an on-site consultant for
the project; Performance, for which Andow worked as a crane operator; and
Warrior Energy Services, LLC (“Warrior”), which supplied a crew to perform
coiled tubing work and other operations on the Platform.          Delahoussaye
worked on the Platform as part of the Warrior crew.
      On August 22, in order to create more room on the Platform, Boutte
decided to backload some equipment from the Platform onto an adjacent vessel.
Boutte instructed Delahoussaye to serve as a flagman on the vessel as Andow
operated a crane to lower the equipment from the Platform onto the vessel’s
deck. When Andow first attempted the lift, he could not see the vessel from
his vantage point on the crane. Andow stopped the lift and asked that the
vessel be moved farther from the Platform so that he could see the vessel more
clearly. However, Boutte stated that he wanted to carry on with the blind lift
and would act as signalman, relaying directions to Andow on how to move the
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                                    No. 12-31222
load. The blind lift proceeded with Boutte standing by the Platform handrail,
signaling Andow. At some point during the lift Boutte walked away from the
handrail but continued to give Andow the signal to lower the load onto the
vessel. Andow could see that Boutte did not have a clear view and had lost
visual contact with the load for thirty to forty-five seconds. Andow, however,
continued to follow Boutte’s hand signals to lower the load.           As the load
descended, it hit other equipment on the deck of the vessel and jarred a
handrail free. The handrail struck Delahoussaye on the head and shoulder; he
was thrown approximately twenty feet and knocked unconscious for a few
moments. After the accident, Delahoussaye was treated for chronic pain and
diagnosed with degenerative disk disease, a back injury at L5-S1, an annular
tear, and foraminal stenosis.
         Delahoussaye filed suit against Pisces and eventually added Crescent,
Boutte, Performance, and Performance’s liability insurer, One Beacon, as
defendants. After the summary judgment phase of litigation, Delahoussaye
settled with Pisces, Crescent, and Boutte. The matter proceeded to a bench
trial, and the district court found that Boutte (i.e., Crescent) was 85% at fault
in causing Delahoussaye’s injuries, and Andow (i.e., Performance) was 15% at
fault.     The court also awarded Delahoussaye $786,824.66 in damages,
including $200,000 in general damages, which made Performance, as Andow’s
employer, liable to Delahoussaye for $118,023.69 of the total amount.
Delahoussaye and Performance both timely appealed the judgment.
                            STANDARD OF REVIEW
         When reviewing a bench trial, this court reviews findings of fact for clear
error and legal issues de novo. Water Craft Mgmt. LLC v. Mercury Marine,
457 F.3d 484, 488 (5th Cir. 2006). Factual findings are clearly erroneous if
“(1) the findings are without substantial evidence to support them, (2) the court
misapprehended the effect of the evidence, and (3) although there is evidence
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which if credible would be substantial, the force and effect of the testimony,
considered as a whole, convinces the court that the findings are so against the
preponderance of credible testimony that they do not reflect or represent the
truth and right of the case.” Id. To reverse for clear error, this court must
have “a definite and firm conviction that a mistake has been committed.”
Canal Barge Co. Inc. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000).
                                DISCUSSION
I.    Allocation of Fault
      According to Delahoussaye, the evidence shows that Andow was more
culpable for Delahoussaye’s injuries than Boutte, and, therefore, Andow should
be 85% at fault, whereas Boutte’s allocation should be only 15%. A district
court’s allocation of fault is reviewed for clear error. McCuller v. Nautical
Ventures, L.L.C., 434 F. App’x 408, 415 (5th Cir. 2011). “Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” In re Cardinal Servs., Inc., 304 F. App’x 247, 251 (5th
Cir. 2008) (internal quotation marks omitted) (quoting Anderson v. Bessemer
City, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)).
      Delahoussaye’s expert testified at trial that once a crane operator is
given a signal from a signalman, the crane operator is generally responsible
for completing that task until a different signal is given. It is undisputed that
Boutte gave Andow no other signal than the come-down signal until after the
accident occurred.    Delahoussaye’s expert also testified that the accident
occurred because Boutte left his position on the Platform and continued to
signal Andow without actually seeing where the load was going. Performance’s
expert similarly testified that the accident was caused because of the hand
signals that Boutte gave Andow. He stated that Andow was to assume that
Boutte knew it was safe to lower the load and continue following Boutte’s come-
down signal until Boutte directed otherwise because it could be dangerous for
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a crane operator to stop his load without his signalman instructing him to do
so. Furthermore, a certified rigger and eyewitness to the accident testified at
trial that when a signal is given to a crane operator, the crane operator is
expected to follow that signal. In light of the evidence presented at trial, it was
not implausible for the court to find that Boutte, as the designated signalman
for the blind lift, was significantly more at fault for Delahoussaye’s injuries
than was Andow. Because the district court took a permissible view of the
evidence in finding Andow only 15% at fault, we will not alter its
determination.
II.    The Borrowed Employee Doctrine
       In an effort to exonerate itself from fault, Performance argues that the
district court erred when it found that Andow was not a borrowed employee of
Pisces, Crescent, or Boutte at the time of Delahoussaye’s accident.          “[A]n
employer will be liable through respondeat superior for negligence of an
employee he has ‘borrowed[.]’” Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th
Cir. 1977). The borrowed employee doctrine “is the functional rule that places
the risk of a worker’s injury on his actual rather than his nominal employer.”
Baker v. Raymond Int’l, Inc., 656 F.2d 173, 178 (5th Cir. 1981). Whether
Andow was a borrowed employee is a question of law, though in some cases
factual disputes must be resolved before the district court can make this
determination. See Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993).
       There is no indication in the record that Performance argued before the
district court that Andow was a borrowed employee of Pisces. In the district
court, Performance contended that Crescent or Boutte were borrowing
employers, and the court ruled against Performance. “It is the unwavering
rule in this Circuit that issues raised for the first time on appeal are reviewed
only for plain error.” McCann v. Tex. City Refining, Inc., 984 F.2d 667, 673
(5th Cir. 1993). Under the plain error standard, this court may correct “a plain
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forfeited error affecting substantial rights if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1424 (5th Cir. 1996) (en banc)
(superseded by statute on other grounds). Performance does not assert that
its failure to raise the defense concerning Pisces in the trial court warrants
reversal under the plain error standard, nor is there evidence suggesting that
Performance’s error seriously affects judicial fairness, integrity, or public
reputation. Perhaps recognizing this deficiency, Performance has failed to
clearly assert on appeal who was Andow’s borrowing employer. Instead, as
admitted by its counsel during oral argument, Performance simply urges this
court to hold that Andow was a borrowed employee of somebody—anybody—
other than Performance. This tactic of “throwing everything at the wall to see
what sticks” is not the basis upon which a party successfully invokes the
borrowed employee doctrine.
      Where multiple contractors are named as defendants, a plaintiff can be
the borrowed employee of only one. That defense, if accepted, exonerates the
borrowing employer from liability. While liberal pleading rules would have
allowed Performance to assert the defense alternatively against the other
defendants, those defendants had to be placed on notice of the assertion in
order to prepare for trial and engage in settlement discussions. Performance
cannot, for the first time on appeal, re-order its defenses in an attempt to
overcome the district court’s adverse holding. Because Performance’s newly
minted strategy fails to show that borrowed employee status should be applied
in the instant case, the district court’s holding that Andow was not a borrowed
employee is affirmed.




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III.    General Damages
        Neither party disputes the district court’s factual findings with regard to
Delahoussaye’s injuries and post-accident medical treatment.               Rather,
Performance contends that those findings do not support the general damages
award of $200,000. A district court’s award of damages is a finding of fact,
which we will reverse only for clear error. Moore v. M/V ANGELA, 353 F.3d
376, 384 (5th Cir. 2003). This court has stated that “[a]n award is excessive
only if it is greater than the maximum amount the trier of fact could properly
have awarded,” id., and that the “maximum recovery rule” for applying
remittitur only becomes operative if the award at issue exceeds 133% of the
highest previous recovery for a factually similar case in the relevant
jurisdiction. Lebron v. U.S., 279 F.3d 321, 326 (5th Cir. 2002). Because the
facts of every case are different, prior damage awards from other cases are not
always controlling, id., and excessiveness is determined by reviewing a case on
its own facts, Moore, 353 F.3d at 384.
        The district court found that Delahoussaye sustained a back injury at
L5-S1 as a result of the August 22, 2009, accident, which will require future
visits with his physician, periodic doses of medication, and perhaps periodic
stints of physical therapy. However, the court also acknowledged that several
hours of surveillance footage show Delahoussaye performing various tasks,
including picking up ice chests, squatting with a bag of dog food on his
shoulder, jumping in and out of a truck bed, lifting and carrying equipment,
bending, dancing, and running up and down steps. The district court pointed
out that during the course of the surveillance, Delahoussaye was not noted to
wince, guard, limp, or make any other outward expressions of pain or
discomfort.      Accordingly, the district court found that Delahoussaye
exaggerated his complaints of pain and was not a candidate for L5-S1 fusion,
despite the recommendation of Delahoussaye’s orthopedic surgeon. Moreover,
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the district court found that Delahoussaye can return to work in a low-
sedentary type position and that his back injury has not significantly affected
his relationship with his son.
       Although Delahoussaye insists that this case is similar to other
Louisiana cases where courts have held that general damage awards higher
than $200,000 are not excessive, all of the cases upon which he relies are
pointedly dissimilar from this case in that either (1) Delahoussaye’s injuries do
not rise to the level of the other plaintiffs’, or (2) the credibility of the other
plaintiffs was not seriously undermined by surveillance video showing
performance of daily activities without any indication of pain. 2 The most
factually similar case to Delahoussaye’s is Bazile v. Chevron USA, Inc., where
the Western District of Louisiana awarded $65,000 in general damages to a
plaintiff who was injured while descending his bunk in the housing area of an
oil platform on which he worked. No. 10-0050, slip op., 2013 WL 1288698 at
*1 (W.D. La. March 27, 2013). In Bazile, the plaintiff suffered from a central
and right side herniated disc at the L4-5 level that caused significant stenosis,
as well as associated changes at L5-S1 and L3-4. Id. at *3. The plaintiff was
not able to return to offshore work following his accident, and although the




       2 See e.g., Brock v. Singleton, 65 So.3d 649 (La. Ct. App. 2011) ($590,000 in general
damages to plaintiff injured in truck accident who suffered from pain in his leg, shoulder,
fingers, back, foot, toes, head, arm, and hand; had to wear a corset and take medication for
pain; would undergo major back surgery; was depressed and suffered from a diminished
sexual relationship with his wife); Cox v. Shelter Ins. Co., 34 So.3d 398 (La. Ct. App. 2010)
($250,000 in general damages to plaintiff injured in multi-vehicle accident who suffered from
protruding disc in back that would never heal on its own; experienced pain when sitting or
standing for long periods of time, severe headaches, and problems picking up her children or
lifting any heavy weight; was facing a serious surgery; and video surveillance showed that
she was in pain when going about her daily activities); Desselle v. LaFleur, 865 So. 2d 954
(La. Ct. App. 2004) ($350,000 in general damages to plaintiff injured in car accident who
suffered from cervical problems and joint dysfunction; would require annual dental visits for
the rest of her life to treat temporomandibular joint dysfunction; was credible with respect to
her pain complaints; and surgery was recommended).
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treating physician believed that the plaintiff was a surgical candidate, surgery
was too risky because of the plaintiff’s weight and high blood pressure. Id.
Based upon the plaintiff’s medical information, the district court concluded
that $65,000 was an appropriate general damages award.                       Id. at *6.     In
reaching this conclusion, the district court referenced three Louisiana Court of
Appeal cases that found general damage awards ranging from $40,000 to
$100,000 were appropriate based on facts similar to the ones at hand. 3
       In light of these authorities, a general damages award of $65,000 is much
closer to what Louisiana courts would award Delahoussaye based on the facts
of this case. Because $200,000 is more than 133% of $65,000, the district
court’s award of general damages is excessive as a matter of law. We remit the
general damage portion of Delahoussaye’s award to $86,450—that is, 133% of
$65,000—unless he elects to have a new trial on general damages. Eiland v.
Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) (“[T]his circuit’s case
law provides for remittitur if the award is excessive, and new trial on damages
alone if the plaintiff declines the remitted award.”).
                                     CONCLUSION
       For the foregoing reasons, the judgment of the district court is
AFFIRMED with respect to liability issues.                 However, we VACATE and
REMAND to the district court the award of general damages and order a
REMITTITUR to $86,450 unless Delahoussaye elects to have a new trial on



       3 See Raimondo v. Hayes, 30 So.3d 1177 (La. Ct. App. 2010) ($65,000 in general
damages to plaintiff who suffered multiple disc injuries and would continue to experience
chronic pain throughout her life); Gradnigo v. La. Farm Bureau Cas. Ins. Co., 6 So.3d 367
(La. Ct. App. 2009) ($40,000 in general damages to plaintiff who suffered from mild disc
herniations, bone spurs, and a lumbar bulging disc and faced the possibility of future
surgery); Coutee v. Global Marine Drilling Co., 895 So. 2d 631 (La. Ct. App. 2005) ($100,000
in general damages to plaintiff who suffered from multiple levels of degenerative disc disease,
a herniated disc, myofascial pain syndrome, major episodic depression, and chronic pain
syndrome) rev’d on other grounds, 924 So. 2d 112 (La. 2006).
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general damages alone.     Additionally, the district court’s judgment is
REFORMED to include Performance’s undisputed liability insurer, One
Beacon, which the district court mistakenly omitted from judgment. Judgment
AFFIRMED in part, VACATED and REMANDED in part with instructions,
REFORMED in part.




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