Fifth Circuit Clarifies and Reiterates its Standard for "Course and Scope of Employment" Under Jones Act

By Tod J. Everage

The U.S. Fifth Circuit recently issued its ruling in Beech v. Hercules Drilling Co., No. 11-30415, 2012 WL 3324283 (5th Cir. Aug. 14, 2012), clarifying its standard for finding an employer vicariously liable for the actions of its employees under the Jones Act. In doing so, the Fifth Circuit reversed a ruling by Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana which found that the co-employee of a Jones Act plaintiff was acting in the course and scope of his employment when he accidentally shot and killed the plaintiff on the Jones Act employer’s jack-up rig.

Michael Cosenza and Keith Beech were both Hercules employees working aboard the HERCULES 101, a jack-up drilling rig. When Cosenza boarded the rig, he realized that he “accidentally” brought a firearm with him, which was a direct breach of company policy. He hid the firearm from sight and did not report it to anyone, which constituted another breach of company policy. On December 13, 2009, Cosenza was assigned to work the night shift and was the only crewman on duty. His duties that night were to monitor the rig’s generator, to check certain equipment, and to report any suspicious activity or problems. Hercules encouraged Consenza to stay in the break room while he performed these duties, watching television and commiserating with fellow crew members. Beech, who was “on call” but not “on duty,” was talking and watching television with Cosenza in the break room at the time of the accident. At some point during the night shift, thinking Beech would be interested, Consenza retrieved the gun to show to Beech, who inspected the gun, but did not handle it. As Consenza sat back down in the break room, the gun accidentally discharged when Consenza’s arm bumped a part of the couch. The bullet struck Beech, fatally wounding him.

Beech’s surviving spouse and son brought a wrongful death suit against Hercules under the Jones Act. After a bench trial, Judge Barbier rendered a verdict in favor of the plaintiffs, awarding $1.2MM. See Beech v. Hercules Drilling Co., 786 F.Supp.2d 1140 (E.D. La. 2011). Hercules appealed, arguing that Consenza was not in the course of scope of his employment. The Fifth Circuit reversed and entered a judgment in favor of Hercules.

The case turned on the meaning of “in the course of employment” and whether the standard for making that determination included a consideration of the employer’s business interests. On appeal, Hercules argued that Consenza’s act of showing off his gun did not further Hercules’ business interests, and because it was in no way related to his job duties, he was not acting within the course and scope of his employment at the time of the accident. The plaintiffs urged that Consenza’s actions at the time that the gun discharged, i.e., the act of sitting on the couch, were within the course of scope of his employment because Hercules encouraged its employees working the night shift to sit on the couch and watch T.V.

First, the Fifth Circuit reviewed and compared its previous ruling in Stoot v. D & D Catering Serv., Inc., 807 F.2d 1197, 1199 (5th Cir. 1987) (incorporating the employer’s business interests in the standard) and the Sixth Circuit’s more expansive ruling in Baker v. Baltimore & Ohio R.R. Co., 502 F.2d 638 (6th Cir. 1974) (finding it unnecessary to show that the negligent employee was acting in furtherance of the employer’s business). Plaintiffs argued – as Judge Barbier had ruled - that Stoot is distinguishable because it involved an intentional tort. The Fifth Circuit disagreed and clarified “that regardless of whether the underlying injurious conduct was negligent or intentional, the test for whether a Jones Act employee was acting within the course and scope of his employment is whether his actions at the time of the injury were in furtherance of his employer’s business interests.” (emphasis added). A review of the employer’s safety policy “gives guidance regarding what employee conduct furthers [the employer’s] business interests.” The Circuit Court then reevaluated the facts of the case and found that Consenza was not within the course and scope of his employment and consequently, entered a judgment in favor of Hercules.

This ruling, if nothing else, clarified the Fifth Circuit’s standard for the determination of “course and scope of employment” under the Jones Act. The standard adopted by the Court also reaffirmed its holding in Stoot and pointed out that the majority of other Federal Circuits have similar standards.