Opinion
CIV. NO. 98-1906 SECTION "N".
April 6, 2000.
ORDER AND REASONS
Before the Court is defendant Transocean Offshore, Inc.'s ("Transocean") Unopposed Motion for Summary Judgment. For the following reasons, Transocean's Motion is GRANTED.
BACKGROUND
This case arises out of alleged injuries to plaintiff Alan Carter as a result of an accident on or about October 6, 1997. Carter was employed by Professional Industrial Maintenance, L.L.C. ("PIM") as a welder/pipefitter. On August 26, 1997, PIM entered into an independent contractor relationship with Transocean under a Master Service Agreement (the "Contract"), wherein PIM agreed to provide materials and labor in connection with modifications to a semi-submersible drilling vessel, the Marianas. Transocean was the owner or owner pro hac vice of the Marianas. On the date of injury, PIM employees were working aboard the Marianas while the vessel was docked at a shipyard in Brownsville, Texas. The shipyard was owned and operated by defendant Amfels, Inc. ("Amfels"), with whom Transocean contracted for the purpose of re-tolling, re-fitting and modifying the Marianas. Plaintiff alleges that he sustained injuries while fabricating a manhole on the vessel, when other workers began to perform "hot work" on the level directly above him, causing hot waste or molten metal to fall down on the area where plaintiff was working. While attempting to avoid the falling hot waste, plaintiff fell into the unbarricaded manhole, sustaining injuries.
"Hot work" includes welding, cutting or metal washing with the use of heat, which results in the production of molten, hot waste.
Plaintiff filed suit alleging claims of negligence under 33 U.S.C. § 905(b) of the Longshore and Harbor Workers' Compensation Act and general maritime law against Transocean and Amfels on June 30, 1998. Now before the Court is defendant Transoccan's Motion for Summary Judgment, in which Transocean seeks dismissal of plaintiffs claims. Transocean noticed its Motion for hearing on April 5, 2000. To date, defendant's Motion remains unopposed, as plaintiff has not filed a Memorandum in Opposition.
STANDARD OF REVIEW
Summary Judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of fact exists where the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the burden of demonstrating an absence of evidence to support the non-movant's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). To oppose a motion for summary judgment, the non-movant must set forth specific facts to establish a genuine issue of material fact, and cannot merely rest on allegations and denials. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2552. Factual controversies are to be resolved in favor of the non-moving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
LAW AND ANALYSIS
The Court grants defendant's Motion for Summary Judgment on alternative grounds. First, in accordance with local rules, the Court grants the Motion as unopposed. Pursuant to Local Civil Rule 7.5 of the Eastern District of Louisiana, a non-moving party must file memoranda in opposition to a motion at least eight days prior to the motion's noticed hearing date. See id. Here, plaintiff has yet to file a Memoranda in Opposition. Second, the Court accepts as undisputed Transocean "statement of uncontested material facts and finds that defendant's motion is not without merit. Pursuant to Local Civil Rule 56.2E, opposition memoranda are to be submitted with a concise statement of material facts to which there exist genuine issues for trial. See id. In the absence of such opposition, "[a)ll material facts set forth [by the movant] will be deemed admitted." Id. With this in mind, the Court finds that Transocean, as movant, has established the absence of genuine issues of material fact and entitlement to summary judgment as a matter of law.
See Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).
Transocean moves this Court to enter summary judgment in its favor, dismissing plaintiffs claims, on the grounds that it was neither negligent in causing plaintiffs accident, nor responsible for the negligence of any other party, such that no act or failure to act on its part caused plaintiffs injuries. Transocean argues that Carter was neither its employee nor its borrowed servant, and thus Transocean cannot be held liable for breach of a duty owed to plaintiff. Transocean points the Court to several provisions of the contractual agreement between Transocean and PIM under which PIM agreed to provide materials and labor to Transocean and to perform cretin modifications on the Marianas. The Contract provides expressly that PIM is an independent contractor, stating "Contractor shall be an independent contractor with respect to the performance of all Work for [Transocean] hereunder; and neither Contractor, its principals, agents, partners, or subcontractors nor its or their employees shall be servants, agents, or employees of [Transocean]." Paragraph 4. The contract further grants PIM complete authority or control over its operations and employees, stating that Transocean "shall have no direction or control of such parties."Id. The Contract reserves for Transocean only the general rights to direct the results to be obtained and to inspect to ensure the work is being performed in accordance with the Contract. See id. In sum, the agreement between the parties provides that PIM is solely responsible for its operations. There is no indication that Transocean retained the right to control or command the work activities of PIM employees aboard the Marianas. Thus, the Court finds that defendant Transocean cannot be held liable for plaintiffs injuries as a matter of law. See Coulter v. Texaco. Inc., 117 F.3d 909, 911-12 (5th Cir. 1997) (recognizing that a principal cannot be held liable for the negligent acts of an independent contractor in the absence of the retention of operational control over the contractor's acts). See also Futo v. Lykes Bros. S.S. Co., 742 F.2d 209 (5th Cir. 1984) (discussing shipowner liability under § 905(b) for negligence of independent contractor). The contract terms simply do not evidence a relationship between the parties other than that of premises owner and independent contractor.
The Court also considers the conduct of Transocean. Transocean asserts that it turned over control and supervision of the Marianas to aim and other independent contractors such that PIM and others exercised complete control, supervision and direction over the work performed on the vessel at the time of plaintiff's accident. In support of this contention, Transocean offers affidavit testimony of ED Stidston, project manager for the modification of the Marianas, who testifies that Carter was not an employee of Transocean. In addition, Stidston testifies that PIM supplied ball equipment and personnel required to perform cutting and welding modification work aboard the Marianas, and that no Transocean employees were engaged in "hot work" or manhole work on the date of Carter's injury. Finally, Stidston testifies that Transocean did not retain the right to exercise operational control over the methods and means of work performed by PIM and Carter, and that the manner and means about which [the desired result] was obtained [were] under the sole and exclusive control" of Carter and PIM.
Transocean also submits affidavit testimony of George hawking, project specialist or construction Supervisor on the Marianas modification project, who presents testimony identical to that of Stidston, and further testifies that PIM was the only contractor who was authorized to do "hot work" and in fact performed "hot work" aboard the Marianas. Finally, Transocean offers deposition testimony of Carter himself, in which plaintiff agrees that PIM supplied the manpower to perform Transocean's work and determined how to get the job done and what type of tools to use. Based on the testimony before the Court, Transocean argues that there are no issues of material fact as to whether it retained or exercised control over the work and employees involved in plaintiffs accident.
The Court agrees that the evidence before it simply does not show that Transocean exercised or reserved operational control over PIM or Carter during the activities that caused plaintiffs injuries. It is uncontested that Stidston and Hawkins were not involved in the "hot work" or manhole work. Further, there is no evidence of instruction, supervision, or equipment provision by Transocean to indicate that its participation in work activities involved anything more than ownership of the premises on which such activities were performed. Thus, the Court finds that there is insufficient evidence of control by Transocean or retention of the right to control the manner of work performed by PIM employees. In the absence of such evidence, summary judgment in favor of Transocean is appropriate. Accordingly,
IT IS ORDERED that defendant's Motion is GRANTED.
New Orleans, Louisiana, this 4 day of April, 2000.