Delahoussaye Ex Rel. Delahoussaye v. Performance Energy Services, L.L.C., 734 F.3d 389

Plaintiff Scott Delahoussaye, a Warrior Energy crew member, was injured on an offshore platform when a handrail was jarred loose during a crane "blind lift" and struck him.
Pisces owned the platform; Crescent (Boutte) acted as on-site consultant/signalman; Performance employed crane operator Shalico Andow; Delahoussaye worked for Warrior.
Boutte signaled a blind lift from a position with no clear view and walked away while continuing to signal; Andow followed those signals and lowered the load, which struck equipment and dislodged a handrail that injured Delahoussaye.
After settlements with other defendants, a bench trial found Boutte/Crescent 85% at fault and Andow/Performance 15% at fault; district court awarded total damages including $200,000 in general damages.
On appeal, Delahoussaye challenged the fault allocation; Performance challenged the general damages amount and argued Andow was a "borrowed employee." The Fifth Circuit affirmed liability allocation, rejected borrowed-employee arguments on appeal, but found general damages excessive and ordered remittitur or a new trial on damages.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Allocation of fault between Boutte and Andow	Boutte should bear only 15%; Andow 85%	Boutte/Crescent more at fault because Boutte was the signalman and left his post	Affirmed: District court's 85% Boutte / 15% Andow allocation not clearly erroneous
Borrowed-employee status of Andow	N/A (Plaintiff did not press this)	Performance: Andow was a borrowed employee of Pisces or Crescent and Performance should be exonerated	Affirmed district court: Performance forfeited argument as to Pisces; no plain-error relief; borrowed-employee defense not established on appeal
Sufficiency of general damages ($200,000)	$200,000 is appropriate given injuries and prognosis	$200,000 is unsupported by medical evidence and surveillance showing activity; excessive	Reversed in part: $200,000 excessive as a matter of law; remitted to $86,450 (133% of $65,000) unless plaintiff elects new trial on damages
Inclusion of insurer in judgment	N/A	One Beacon, Performance’s insurer, should be included in judgment	Judgment reformed to include One Beacon as undisputed insurer

Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484 (5th Cir. 2006) (bench-trial factual findings reviewed for clear error)
Canal Barge Co. Inc. v. Torco Oil Co., 220 F.3d 370 (5th Cir. 2000) (standard for reversing factual findings)
Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977) (borrowed-employee liability under respondeat superior)
Baker v. Raymond Int’l, Inc., 656 F.2d 173 (5th Cir. 1981) (borrowed-employee doctrine places risk on actual employer)
Billizon v. Conoco, Inc., 993 F.2d 104 (5th Cir. 1993) (borrowed-employee is question of law; factual issues may be required)
McCann v. Tex. City Refining, Inc., 984 F.2d 667 (5th Cir. 1993) (issues raised first on appeal reviewed for plain error)
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc) (plain-error standard articulated)
Moore v. M/V ANGELA, 353 F.3d 376 (5th Cir. 2003) (damages awards are factual findings reviewed for clear error)
Lebron v. U.S., 279 F.3d 321 (5th Cir. 2002) (133% "maximum recovery rule" for remittitur analysis)
Eiland v. Westinghouse Elec. Corp., 58 F.3d 176 (5th Cir. 1995) (remittitur or new trial on damages alone)