Opinion
Civil Action No: 01-2206
August 8, 2002
Timothy Claude Ellender, Jr., [COR LD NTC], St. Martin Williams, Houma, LA for plaintiff.
Patrick Hannon Patrick, [COR LD NTC], Sanda Beach Groome, [COR], Patrick, Miller, Burnside Belleau, LLC, New Orleans, LA for intervenor.
Ronald Adams Johnson, [COR LD NTC], Salvador Joseph Pusateri, [COR], Johnson, Johnson, Barrios Yacoubian, New Orleans, LA, Joseph Edward Bearden, III, [COR], Frilot, Partridge, Kohnke Clements, LC, New Orleans, LA, Robert Seth Reich, [COR LD NTC], L. Stephen Cox, [COR], Reich, Meeks Treadaway, Metairie, LA for defendants.
ORDER AND REASONS
Before the Court is the motion of defendants, Vastar Resources, Inc. and its successor in interest, BP Amoco Corporation, for summary judgment on plaintiff's negligence action. For the following reasons, the Court DENIES defendants' motion.
For the purpose of this motion, the Court will defendants collectively as "Vastar."
I. BACKGROUND
James McCarty was an employee of American Aero Cranes who was assigned to work as a crane inspector and repairman for Vastar Resources, Inc. on oil platforms located in the Gulf of Mexico. McCarty contends that he was injured while working on Vastar's West Cameron 71D platform when he slipped as he rigged a cargo basket for stowage by the vessel's crane.
American Aero is a crane inspection and repair company that provided crane inspection and repair services to Vastar pursuant to an "Oilfield Services Term Agreement." This contract states that American Aero shall perform as an "independent contractor" and that Vastar shall not exercise control over the employees of American Aero. The American Petroleum Institute recommends that crane inspectors be independent third parties.
See Pl.'s Memo. in Opp. to Mot. Summ. J,.; Ex. A.
See Id.; Ex. A at § 5 "Independent Contractor."
See Id.; Ex. B, Truxillo Affidavit at ¶ 7.
McCarty began to work for American Aero about four months before his July 19, 2000 accident. American Aero trained McCarty as a crane inspector and repairman. The company provided him with a beeper.
Of the four months McCarty worked for American Aero, he spent fifty percent of his time working on Vastar platforms and the rest of the time working for four different off-shore operations. McCarty repaired cranes on Vastar's oil platforms on the Outer Continental Shelf. Although Vastar requested plaintiff's services when it needed crane repairs, if plaintiff was on another job or was otherwise unavailable, American Aero would provide Vastar with another employee.
At the time of the accident, McCarty and his partner, Warren Henry, also an American Aero crane inspector and repairman, operated out of Vastar's West Cameron 71D platform. They remained offshore for five or ten days at a time when on a Vastar job. Plaintiff's supervisor at American Aero could recall plaintiff and replace him with another American Aero employee. Vastar arranged for McCarty and Henry to fly to the platform when Vastar needed their services. Once they arrived on the platform, they met with Vastar field supervisors to receive work orders. No supervisory personnel from American Aero maintained a physical presence on the platform. American Aero's supervisor stated, however, that he worked out with Vastar the scope of the maintenance and repair work that plaintiff and his partner would perform before plaintiff and his partner did the actual repair work based on his review of corrective action sheets the servicemen submitted.
Vastar provided all food, lodging, and transportation to and from the platforms. American Aero provided plaintiff with the tools he needed to perform his work on the platforms. When plaintiff required a replacement part to complete a repair job on Vastar's crane, he or his partner consulted with a Vastar supervisor before ordering the part from American Aero or from another supplier. While out on a job for Vastar, plaintiff checked in with American Aero three times a week to update the company on the work order that he was working on and to order parts. Vastar signed all of plaintiff's time sheets for the hours plaintiff worked, and American Aero issued plaintiff his paycheck. Vastar had the right to discharge plaintiff from his job as a repairman on the platform.
Vastar moves for summary judgment on the grounds that plaintiff is Vastar's borrowed servant, and therefore plaintiff's exclusive remedy is workers compensation benefits under the LHWCA. Plaintiff argues that summary judgment is inappropriate because Vastar did not retain authoritative direction and control over the performance of his work and that Vastar merely monitored plaintiff's work. Rather, plaintiff asserts that he was an independent contractor working for Vastar.
II. DISCUSSION
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See Id. at 325, 106 S.Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996)
B. Borrowed Employee Doctrine
The Outer Continental Shelf Lands Act, 43 U.S.C. § 1333, et seq., applies to this dispute because McCarty was injured on an oil platform located on the Outer Continental Shelf, off the Louisiana coast. OCSLA provides that the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901-950, regulates the right to compensation of an injured platform worker. See 43 U.S.C. § 1333 (b). Under the LHWCA, workers' compensation is the exclusive remedy for an employee against his "employer." See 33 U.S.C. § 904 (a), 905(a). The Fifth Circuit has extended this tort immunity provision to include borrowing employers under the "borrowed employee" doctrine. See Total Marine Servs., Inc. v. Director, Office of Worker's Compensation Programs, 87 F.3d 774, 777 (5th Cir. 1996) (citing Hebron v. Union Oil Co., 634 F.2d 245 (5th Cir. 1981); Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977)); Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1243-44 (5th Cir. 1988) (citations omitted). Workers' compensation also provides the exclusive remedy for an employee injured "by the negligence or wrong of any other person or persons in the same employ." 33 U.S.C. § 933 (i). Accordingly, if this Court determines that McCarty was Vastar's borrowed employee, Vastar will be vested with Section 933(i) immunity.
The district court determines the issue of borrowed employee status as a matter of law. See Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617 (5th Cir. 1986) (citing Gaudet, 562 F.2d at 357-58); Melancon, 834 F.2d at 1244. "[I]f sufficient basic factual ingredients are undisputed, the court may grant summary judgment." Capps, 784 F.2d at 616 (citing Caudet, 562 F.2d at 358-59). In Ruiz v. Shell Oil Co., the Fifth Circuit outlined nine factors to be used to determine whether the borrowed employee doctrine applies. 413 F.2d 310, 312-13 (5th Cir. 1969) These factors include the following considerations:
1. Who has control over the employee and the work he is performing, beyond mere suggestion of details of cooperation?
2. Whose work is being performed?
3. Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
4. Did the employee acquiesce in the new work situation?
5. Did the original employer terminate his relationship with the employee?
6. Who furnished the tools and the place of performance?
7. Was the new employment over a considerable length of time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?
See id.; see also Melancon, 834 F.2d at 1244. Although no single factor or combination thereof is determinative, the Fifth Circuit has generally considered the factor of control to be central. See Brown v. Union Oil Co., 984 F.2d 674, 676 (5th Cir. 1993); Melancon, 834 F.2d at 1245; Capps, 784 F.2d at 617. In Gaudet, however, the Fifth Circuit deemphasized the control factor and found that only the fourth, fifth, sixth, and seventh factors should be considered "essential." 562 F.2d at 356. See Brown, 984 F.2d at 677 n. 2.
1. Who had Control Over the Employee and the Work He was Performing?
Determination of the control factor requires the Court to distinguish "`between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.'" Ruiz, 413 F.2d at 313 (quoting Standard Oil Co. v. Anderson, 212 U.S. 215, 222, 29 S.Ct. 252, 254 (1909)).
American Aero furnished plaintiff's services as a crane inspector and repairman to Vastar under an "Oilfield Service Term Agreement" which states that Vastar has no control over American Aero's employees. Plaintiff's supervisor at American Aero testified that American Aero trained, directed and had authoritative control over plaintiff. He stated that plaintiff would inspect a crane in Vastar's field and prepare a corrective action sheet based on the inspection. Plaintiff's American Aero supervisor reviewed the corrective action sheet and priced the maintenance or repair work and parts that appeared to be indicated. Plaintiff's American Aero supervisor stated that he then dealt with Vastar to secure its approval of the work to be performed. In addition, despite Vastar's request for plaintiff's services, American Aero could supply Vastar with different workers. Although plaintiff testified that he received his daily assignments from Vastar personnel and that Vastar supervised his work plaintiff, plaintiff's supervisor at American Aero testified that plaintiff reported directly to him. Further, plaintiff testified that he contacted American Aero three times a week to update the company on his work and on the parts he needed to complete his jobs. Even though Vastar could discharge plaintiff from an assignment with the company, American Aero retained the ability to recall plaintiff from an assignment and replace him with another American Aero employee. Further, the company provided plaintiff with a beeper. The Court finds that the evidence conflicts as to whether defendant had authoritative direction and control over plaintiff's work. See Brown, 984 F.2d at 678 (issue of fact on borrowed employee status when conflicting testimony regarding whether payroll employer or platform owner instructed plaintiff on how, when and where to perform his cleaning duties)
See Pl.'s Memo. in Opp. to Mot. Summ. J.; Ex. A at § 5.
See id.; Ex. B, Truxillo Affidavit at ¶ 11.
See id.; Ex. B, Truxillo Affidavit at ¶ 4.
See id.; Ex. B, Truxillo Affidavit at ¶ 8.
See Def.'s Memo. in Supp. of Mot. Summ. J.; McCarty Depo. I (11/13/01) at 50-51; McCarty Depo. II (4/15/02) at 61, 155-57; Head Depo. at 54.
See Pl.'s Memo. in Opp. to Mot. Summ. J.; Ex. B, Truxillo Affidavit at ¶ 4.
See Def.'s Memo. in Supp. of Mot. Summ. J.; McCarty Depo. II at 170.
See id.; McCarty Depo. II at 173; Henry Depo. at 86; Head Depo. at 55.
See Pl.'s Memo. in Opp. to Mot. Summ. J.; Ex. B, Truxillo Affidavit at ¶ 8.
See Def.'s Memo. in Supp. of Mat. Summ. J.; McCarty Depo. II at 164-65.
2. Whose Work was Being Performed?
There is no dispute that American Aero provided personnel and services to Vastar for the repair of cranes on Vastar's platforms. The record indicates that the maintenance plaintiff performed did in fact promote Vastar's operations. Accordingly, the second factor weighs in favor of borrowed employee status.
3. Was there an Agreement or Understanding Between the Original and the Borrowing Employer?
American Aero entered into an Oilfield Service Term Agreement with Vastar. This contract provides in pertinent part:
5. Independent Contractor: In performing under this Agreement, [American Aero] shall act at all times as an independent contractor. [American Aero] shall not make any commitment or incur any charge or expense in the name of VASTAR. [American Aero] expressly agrees, acknowledges and stipulates that neither the Agreement nor the performance of its obligations or duties thereunder shall ever result in [American Aero], or anyone employed by [American Aero], being: 1) an employee, agent, servant or representative of VASTAR; or 2) entitled to any benefits from VASTAR, including without limitation, pension, profit sharing or accident insurance, or health, medical, life or disability insurance benefits or coverage, to which employees of VASTAR may be entitled. The sole and only compensation and/or benefit of any nature to which [American Aero] shall be entitled are the payments provided herein. VASTAR shall have no direction or control of [American Aero] or its employees and agents except in the results to be obtained. The actual performance and superintendence of all Work shall be by [American Aero], but Work shall meet the approval of VASTAR.
See Id.; Ex. A. at § 5.
Although the contract specifically calls for American Aero to be considered an independent contractor, the Fifth Circuit has held that such a contract provision does not automatically negate borrowed employee status. See Brown, 984 F.2d at 677-78; Melancon, 834 F.2d at 1245. "The reality at the work site and the parties' actions in carrying out a contract . . . can impliedly modify, alter, or waive express contract provisions." Melancon, 834 F.2d at 1245 (citations omitted). Analyzing contract language, the Melancon court held that the provision did not negate borrowed employee status when the nominal employer clearly understood that plaintiff would take his instructions from the borrowed employer. See id.
As the Court discussed above, the evidence conflicts as to who had authoritative direction and control over plaintiff. Thus, the Court finds that there is a genuine fact issue as to whether Vastar's authority over plaintiff was altered by the reality at the work site. See Melancon, 834 F.2d at 1245.
4. Did the Employee Acquiesce in the New Work Situation?
"The focus of this factor is whether the employee was aware of his work conditions and chose to continue working in them." Brown, 984 F.2d at 678. Here, plaintiff worked on the Vastar platforms off and on for five to ten days at a time for a total of about two months without lodging any complaints about his working conditions. See Brown, 984 F.2d at 678 (one month sufficient time to appreciate new work conditions); Cobb v. SIPCO Servs. Marine, Inc., 1997 WL 159491 (E.D. La. 1997) (two months). Plaintiff knew that American Aero sent servicemen to do maintenance and repair work for other companies and that Vastar was one of those companies. Further, plaintiff understood that the West Cameron 71D platform was owned by Vastar. In fact, in his deposition plaintiff agreed with a characterization of his job as being "almost like part of [Vastar's] team." See Allen v. Texaco, Inc., 2001 WL 611391, *5 (E.D. La. 2001) (plaintiff characterized job as working for company that contracted for his services). This factor favors borrowed employee status.
See Def.'s Memo. in Supp. of Mot. Summ. J.; McCarty Depo. I at 42-43.
See Id.; McCarty Depo. I at 42; 46; 49-50.
See id.; McCarty Depo. II at 158-59.
5. Did the Original Employer Terminate his Relationship with the Employee?
This factor does not require the lending employer to sever completely its relationship with the employee, because such a requirement would effectively eliminate the borrowed employee doctrine. See Melancon, 834 F.2d at 1238; Capps, 784 F.2d at 617-18. Rather, the court examines the lending employer's relationship with the employee while the borrowing occurs. See Capps, 784 F.2d at 618. Plaintiff's supervisor at American Aero testified that the company could remove plaintiff from a Vastar project if necessary. Compare Capps, 784 F.2d at 619 (nominal employer temporarily terminated relationship with employee when company placed no restrictions on borrowing employer with respect to employee's employment conditions). Further, plaintiff testified that he reported to American Aero three times a week in order to report on the progress of his work and to order parts. Compare Allen, 2001 WL 611391 at *6 (nominal employer effectively terminated relationship with employee when personnel coordinator testified that he had no knowledge regarding plaintiff's daily work performance and responsibilities). Vastar's contention that American Aero effectively terminated its relationship with plaintiff because Vastar could request McCarty's presence is belied by the testimony of Vastar's own employee who stated that Vastar was not always able to secure plaintiff's services every time that the company requested him from American Aero. Based on this evidence, the Court finds that factor five weighs against borrowed employee status.
See Pl.'s Memo. in Opp. to Mot. Summ. J; Ex. B.,; Truxillo Affidavit at ¶ 8.
See Def.'s Mot. in Supp. of Mot. Summ. J.; McCarty Depo. II at 170.
See Pl.'s Memo. in Opp. to Mot. Summ. J; Ex. C., Head Depo. at 76, 98-79.
6. Who Furnished the Tools and the Place of Performance?
Vastar furnished plaintiff with the place of employment, meals, lodging, and transportation to and from work. American Aero provided plaintiff with most of the tools he needed on the job. When parts were needed to complete a repair, plaintiff would check in with a Vastar supervisor for authorization before ordering the parts from American Aero. The Court finds that this factor weighs against finding borrowed servant status.
See id.; McCarty Depo. II at 173-74.
See id.; McCarty Depo. II at 160; Head Depo. at 74.
7. Was the New Employment Over a Considerable Length of Time?
The Fifth Circuit has held that when "the length of employment is considerable, this factor supports a finding that the employee is a borrowed employee," but that "the converse is not true." Capps, 784 F.2d at 618. The Capps court found this factor neutral on borrowed employee status when the employee's injury occurred on the first day of the job. See Id. Here, plaintiff worked for Vastar off and on for five to ten days at a time for a total of about two months within a four month period before the alleged accident. Further, within the four months that plaintiff worked for American Aero, he also worked for four other off-shore operations. The Court finds that the length of employment is at best neutral on the issue of borrowed employee status. See Cobb, 1997 WL 159491 at *4 (length of time factor neutral when plaintiff spent two months on job).
See id.; Labor Edit Report.
8. Who Had the Right to Discharge the Employee?
While Vastar did not have the right to terminate plaintiff's employment with American Aero, it did have the right to terminate his relationship with Vastar. This fact favors borrowed employee status. See Melancon, 834 F.2d at 1216; Capps, 784 F.2d at 618; See also Allen, 2001 WL 611391 at *6.
See Id.; Head Depo. at 54-55; Henry Depo. at 86.
9. Who Had the Obligation to Pay the Employee?
Finally, with respect to the last factor, American Aero paid plaintiff based on the number of hours plaintiff worked for Vastar. Vastar approved the number of hours plaintiff submitted, and plaintiff would not get paid if Vastar failed to approve plaintiff's time ticket. The evidence does not indicate, however, how Vastar billed American Aero for plaintiff's work or whether American Aero retained a percentage of the amount Vastar paid and gave the rest to plaintiff. Therefore, because American Aero ultimately paid plaintiff, the Court finds that this factor weighs against finding borrowed servant status.
See Id.; McCarty Depo. II at 174; Head Depo. at 74-75; Henry Depo. at 86.
III. CONCLUSION
For the foregoing reasons, the Court finds that there are genuine fact issues in dispute as to the Ruiz factors and that, as such, summary judgment is not proper as to whether plaintiff was Vastar's borrowed employee. Accordingly, the Court DENIES defendants' motion for summary judgment.