Opinion
CIVIL ACTION NO. 01-2741 SECTION "C" (4)
April 15, 2002
ORDER AND REASONS
Before the Court is Stone Energy Corp.'s ("Stone") Motion for Summary Judgment dismissing all claims by Plaintiff Joseph Kirk LaFleur ("LaFleur"). After reviewing the arguments of counsel, the record, and the applicable law, IT IS ORDERED that the motion is hereby GRANTED.
BACKGROUND
Kirk LaFleur was a payroll employee of Petroleum Services, Inc. ("PSI"), assigned to work as an operator for Stone aboard South Pelto 23-D, an oil and gas fixed platform in the Gulf of Mexico approximately twenty-five miles off the coast of Louisiana. See Rec. Doc. 8, Ex. 3 at 29, 30; Ex. 2 at ¶ 6. Plaintiffs contend that, while working on the platform on or about September 11, 2000, LaFleur sustained injuries to his cervical and lumbar spine "and associated processes," arms, wrists, hands, head, chest, and left knee when he fell from a ladder that slipped while he was attempting to place bleach in a water tank. See Rec. Doc. 1 at ¶¶ 3, 6.
PSI is in the business of supplying workers to various oil and gas companies, including Stone. See Rec. Doc. 8, Ex. 1 at ¶ 6. Although Stone owned the platform, PSI purportedly supplied employees, including LaFleur, to Stone pursuant to a "General Work Agreement" dated October 1, 1991. See id. at Ex. 5. This contract states that PSI shall perform as an "independent contractor" and that Stone shall not exercise control over the employees of PSI. See id. at ¶ IV.
LaFleur worked exclusively for Stone during his three-year employment with PSI. See Rec. Doc. 8, Ex. 3 at 30. Stone employed LaFleur to produce oil and gas from the platform. See id., Ex. 2 at ¶ 7. At the time of the accident the crew for the platform consisted of LaFleur, two Stone employees and another employee of an unidentified employer. See id. at ¶ 5; Ex. 3 at 30. No supervisory personnel from PSI maintained a physical presence on the platform. See id., Ex. 2 at ¶ 16. LaFleur worked seven days on/seven days off shifts. See id., Ex. 3 at 38, with Stone determining LaFleur's work schedule and the amount of time he worked on the platform. See id., Ex. 2 at ¶ 25. Stone provided all food, lodging, and transportation to and from the platform. See id., Ex. 1 at 17. Stone also provided all tools and equipment LaFleur needed to perform his work on the platform. See id., Ex. 2 at ¶ 21.
Stone provided LaFleur with daily work orders and job responsibilities. See id. at ¶ 14. Stone personnel provided additional work instructions to LaFleur while on the platform. See id. at ¶ 15. LaFleur routinely submitted reports to Stone's lead operator for the platform, see id., Ex. 3 at 35, and LaFleur, along with other members of the production crew, participated in production meetings and other meetings just as would Stone's employees, see id., Ex. 2 at ¶ 19. Under Stone's relationship with PSI, PSI billed Stone for the hours LaFleur worked, and PSI issued LaFleur his paycheck. See id., Ex. 1 at 15-16. Stone had the right to discharge LaFleur from his job as an operator on the platform. See id. at 17; Ex. 2 at ¶ 12.
By way of challenging Stone's assertion that LaFleur was its borrowed employee, Plaintiffs contend that LaFleur was not provided a copy of Stone's handbooks and safety manuals, nor was he required to read these materials or sign an acknowledgment that he had done so. See Rec. Doc. 13. Moreover, Plaintiffs produced evidence that when LaFleur was injured, PSI provided an accident report. See id. at Ex. 1.
Stone moves for summary judgment on the ground that LaFleur is Stone's borrowed employee, and therefore LaFleur's exclusive remedy is workers compensation benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901-950. Plaintiffs argue that summary judgment is inappropriate because the PSI-Stone contract prohibits a finding of borrowed employee status, as does the nature of PSI's ongoing relationship with LaFleur. Rather, Plaintiffs assert, LaFleur was an independent contractor working for Stone.
ANALYSIS Standard of Review
A district court can grant a motion for summary judgment only when 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 a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a. motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (9th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53, 91 L.Ed.2d 265 and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, 91 L.Ed.2d 202. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50, 106 S.Ct. at 2511, 91 L.Ed.2d 202 (citations omitted).
Borrowed employee doctrine
As noted above, Stone argues that LaFleur was its "borrowed employee" and is thus precluded from suing it by virtue of the exclusivity afforded by the LHWCA. See § 933(i); Perron v. Bell Maint. Fabricators, Inc., 970 F.2d 1409, 1412 (5th Cir. 1992), cert. denied, 507 U.S. 913, 113 S.Ct. 1264, 122 L.Ed.2d 660 (1993).
Borrowed employee status is a question of law. See Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1244 (5th Cir.), amended on other grounds, 841 F.2d 572 (5th Cir. 1988). Nine factors are considered by the Court in making this determination under Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir. 1969). See Melancon, 834 F.2d at 1244. Although the Court will discuss the facts relevant to each separately, no single factor, or any combination, is determinative of borrowed employee status. Brown v. Union Oil Co. of Cal., 984 F.2d 674, 676 (5th Cir. 1993). If sufficient facts are undisputed, summary judgment is appropriate. Gaudet v. Exxon Corp., 562 F.2d 351, 357-58 (5th Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978). "We will not insist upon the expense and delay of a trial if the overall issue can be resolved through a preponderance of other factual matters not in dispute." Id. at 358 (emphasis in original). If factual disputes must be resolved before the district court is able to decide this issue, summary judgment is unavailable and the district court makes the legal determination at trial. Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993). However, the plaintiff can not avoid summary judgment by merely contesting the court's conclusion, but must show that genuine issues of material fact exist over enough facts to make a difference on summary judgment. See Gaudet, 562 F.2d at 358. See also Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617 (5th Cir.), cert. denied, 479 U.S. 838, 107 S.Ct. 141, 93 L.Ed.2d 83 (1986).
Borrowed employee status factors
The nine factors to be considered in determining borrowed employee status include:
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 tools and place for 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 Melancon, 834 F.2d at 1244 (citing Ruiz, 413 F.2d 310).
Stone contends that each of the factors weighs in favor of finding that LaFleur was a borrowed employee. See Rec. Doc. 8. In opposing Stone's motion, Plaintiffs contest only Stone's assertion that the third and fifth factors favor a finding that LaFleur was a borrowed employee. The Court thus turns its attention to these factors.
3. Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
The third factor focuses on the General Work Agreement between PSI and Stone. The written contract provides, in pertinent part:
IV. Independent Contractor Relationship
It is expressly understood that [PSI] shall perform work or services hereunder as an independent contractor. [Stone] shall exercise no control over [PSI]'s employees, servants, agents or representatives, nor . . . the methods or means employed by [PSI] in the performance of such work or services . . . .
In any event, the contract provision is not determinative of this factor where, as here, "[t]he reality at the worksite and the parties' actions in carrying out a contract . . . impliedly modify, alter, or waive express contract provisions." Melancon, 834 F.2d at 1245. See also Billizon, 993 F.2d at 105-06. Analyzing a contractual provision decidedly similar to that here, the Melancon court held that the language did not negate borrowed employee status, given that the nominal employer clearly understood that the plaintiff would take instructions from the borrowed employer. Here, similarly, the evidence indicates that PSI did not instruct LaFleur how to perform his duties on the platform. As in Melancon, Stone told LaFleur "what work to do, and when and where to do it." 834 F.2d at 1245.
Plaintiffs argue that LaFleur was treated differently than Stone's employees and that, accordingly, this factor weighs against finding that he was a borrowed employee. See Brown, 984 F.2d at 678. Specifically, as noted above, Plaintiffs contend that LaFleur was not provided a copy of Stone's handbooks and safety manuals, nor was he required to read these items or sign an acknowledgment that he had done so. See Rec. Doc. 13. Furthermore, Plaintiffs point out, when LaFleur was injured, his supervisors at PSI, not at Stone, prepared accident reports. See id.
The Court generally disagrees with Plaintiffs' assertions. The Brown court's analysis focused specifically on differential treatment of employees. Plaintiffs' approach assumes the existence of differential treatment without providing evidence substantiating such a conclusion. First, the mere failure of Stone to provide LaFleur with a copy of its handbooks or safety manuals does not, by itself push the Court toward a finding in Plaintiffs' favor under this factor. Even if LaFleur was not given handbooks or safety manuals, no evidence has been presented that Stone's employees were provided materials that LaFleur was not. Moreover, as Plaintiffs concede, he worked alongside Stone employees, a fact that militates toward a finding in favor of Stone under this factor. See id. The only possible evidence here weighing in favor of Plaintiffs under this factor is evidence that accident reports were prepared by PSI, not Stone, when LaFleur was injured. Nevertheless, even assuming the report was prepared by PSI, not Stone, given the other facts and evidence of the actual arrangement between the parties, the third factor either supports a finding of borrowed employee status or is at most neutral.
John Davidson, Stone's production foreman on the platform at the time of the injury, testified that he prepared an accident report. See Rec. Doc. 8, Ex. 4 at 14. Stone, however, did not produce such a report.
5. Did the original employer terminate his relationship with the employee?
With regard to the termination of the employee's relationship with his original employer under the fifth factor, complete severance of that relationship is not required. Capps, 784 F.2d at 617. Rather, it focuses on the relationship between PSI and LaFleur while the borrowing occurs. See id., at 618.
Here, PSI hired LaFleur and gave him the Stone assignment; however, Jim Justice, PSI's "Operations Manager/Human Resources Manager/Account Exec.," testified that PSI was not involved in the daily platform operations and that PSI had no supervisory role with respect to LaFleur's work with Stone. See Rec. Doc. 8, Ex. 1 at 12, 18. Furthermore, according to the affidavit of Terry Delahoussaye, a Stone Field Foreman at the time, there were no PSI supervisory personnel on the platform, nor did PSI direct LaFleur as to his duties on the platform. See id., Ex. 2 at ¶¶ 16, 17. Delahoussaye also stated that Stone instructed LaFleur as to his work on the platform and gave him daily work orders and job responsibilities. See id. at ¶¶ 14, 15.
Plaintiffs suggest that PSI maintained enough of a continuing relationship with him to create a factual dispute that should be determined by a fact-finder. In particular, as noted above, Plaintiffs have submitted evidence that PSI contributed to a fringe benefit package for LaFleur; provided LaFleur periodic safety and training awards; kept detailed records regarding all its training of LaFleur; and, by policy, required LaFleur to maintain reliable transportation to and from his employment.
Plaintiffs' analysis is misplaced, however. This factor focuses on the employer-employee relationship while the employee is performing the actual work during which the borrowing occurs. See Brown, 984 F.2d at 678 (lending employer had not relinquished all control over employee while he was working on platform of company to which employer had lent employee's services); Allen v. Texaco, Inc., No. 99-1456, 2001 U.S. Dist. LEXIS 7902, at *16-17 (E.D. La. June 5, 2001) (analysis of daily work performance and responsibilities, which assignment of daily tasks to plaintiff, and contact between plaintiff and lending employer while plaintiff was on job site); Arboleda v. Elmwood Dry Dock Repair, Inc., No. 98-1268, 2001 U.S. Dist. LEXIS 1432, at *12-13 (Feb. 7, 2001) (analysis of employee activities at job facility); Jackson v. Samedan Oil Corp., 98-0472, 2000 U.S. Dist. LEXIS 855, at *18-19 (Jan. 28, 2000) (analysis of contact between plaintiffs and lending employer on job site and control over daily on-site operations). The evidence submitted by Plaintiffs pertains to LaFleur's off-site relationship with PSI and thus is not pertinent to the analysis here. Accordingly, given the lack of evidence of PSI's on-site relationship with LaFleur, the Court concludes that the relationship was sufficiently "terminated" to support a finding of borrowed employee status.
CONCLUSION
Given that (a) the two contested factors weigh in favor of a finding of borrowed employee status and (b) Plaintiffs do not contest the other factors that Stone claims support a finding of borrowed employee status, on balance, the evidence compels a finding that summary judgment is appropriate.
Even assuming the third factor does support a finding of borrowed employee status, however, given that (a) the fifth factor overwhelmingly favors a finding of borrowed employee status and (b) Plaintiffs do not contest the other factors that Stone claims support a finding of borrowed employee status, the evidence compels a finding that summary judgment is appropriate. See Brown, 984 F.2d at 678 (where disputed issue of fact exists with respect to the terms of a contract and related issues, "[i]f the remaining borrowed employee factors overwhelmingly point to borrowed employee status, a summary judgment . . . is appropriate").
Accordingly,
IT IS ORDERED that:
Stone's Motion for Summary Judgment dismissing all claims against LaFleur is hereby GRANTED.