One benefit of OCSLA is application of Chapter 95 of the Texas Civil Practice and Remedies Code to claims against platform owners for personal injuries on their facilities off Texas’ coast. Under Chapter 95, a property (platform) owner is generally not liable for injuries to an independent contractor's employee who constructs, repairs, renovates or modifies an improvement to the property (platform) when the employee is injured due to an unsafe condition in the work place unless (1) the property (platform) owner exercises or retains some control over the manner in which the work is performed; and (2) the property (platform) owner had actual knowledge of the danger or condition resulting in the personal injury or death and failed to adequately warn.

 

The majority of Texas Courts do not require that the unsafe condition of the premises that caused the injury be the object of the contractor's work. Sinegal v. Ryan Marine Svcs., 2008 WL 7628136 (S.D. Tex. 2008); Franks v. Chevron, 2007 WL 2330296 (S.D. Tex. 2007). Notwithstanding the prevailing view of Texas appellate courts, there is one Texas court which has taken the opposite tack. In Hernandez v. Brinker International, Inc., 285 S.W. 3D 152 (Tex. App.-Houston [14 Dist.] 2009), the court found that Chapter 95 was inapplicable as a defense to the property owner when an air condition repairman fell through the roof of the structure on which his work was to be performed. The Court reasoned that Chapter 95 did not apply because the plaintiff was not repairing or modifying the roof, but rather was repairing the air-conditioning system.

 

A recent case decided by the United States District Court for the Western District of Louisiana in Lafayette, Smetana v. Apache Corporation, et al., 2011 WL 58 55166, followed the majority view of Texas appellate courts and applied Chapter 95. In that suit, Bert Cass and Paul Hale of Deutsch, Kerrigan & Stiles' Marine and Energy Department represented the owner of the platform where an employee of one of its contractors was injured. The contractor's employee allegedly sustained serious injuries when he fell while crossing from a lift boat gangway onto the platform, when he stepped on platform debris at the end of the gangway. The platform owner had also time chartered the lift boat, which was jacked up adjacent to the platform, and contracted the consulting firm that provided the "company man" to oversee the project, which involved plugging and abandoning the well and removing the platform.

 

The plaintiff sued the platform owner and others seeking damages for his injuries under Texas and maritime law. After discovery was completed, Messrs. Cass and Hale filed a Motion for Summary Judgment seeking the owner's dismissal based on Chapter 95 and entrenched principles of maritime law. The plaintiff opposed the motion, arguing that Chapter 95 did not apply because the debris on the platform was unrelated to the plaintiff’s work and that the owner was liable under Texas law because it controlled the operation through the "company man" who acted as the owner's "eyes and ears" on the project. The plaintiff also claimed that the platform owner was liable under maritime law because it was the time charterer of the jack up vessel and the owner’s "company man" participated in the positioning of the gangway.

 

The Court disagreed with the plaintiff and granted the Motion for Summary Judgment, ruling that Chapter 95 governed and that the owner was not liable under Texas or maritime law. In applying Chapter 95, the Court held that even though the clutter on which the plaintiff allegedly fell was not part of the plug and abandonment work which he and his employer had been hired to perform, Chapter 95 precludes recovery, because it does not require that the condition of the premises that caused the injury be the object of the plaintiff's work, and the owner did not control the manner in which its contractor’s work was performed.

 

As for the plaintiff's claims against the platform owner as time charterer of the vessel, the Court found that the duty to provide safe ingress and egress between the vessel and the platform was the vessel owner's responsibility, not the time charterer’s, thus the platform owner was not liable under maritime law.