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finding that the original employer relinquished control because it had little knowledge about plaintiff's daily activities, performance, and responsibilities, and the occasional phone call or visit did not defeat such a finding
Summary of this case from Mount v. Apache Corp.Opinion
Civil Action No: 99-1456 Section: "R" (4)
June 5, 2001
ORDER AND REASONS
Defendant, Texaco, Inc., has moved this Court for summary judgment, seeking to dismiss all of plaintiff's claims against it. Because the Court finds that plaintiff, Phillip Allen, was the borrowed employee of Texaco, Inc., it GRANTS defendant's motion.
I. BACKGROUND
Phillip Allen was a payroll employee of Danos Curole Marine Contractors, Inc. who was assigned to work as a roustabout/operator for Texaco aboard oil platforms located in the Gulf of Mexico. Allen contends that, while working on Texaco's West Cameron 643A platform on September 9, 1998, he sustained injuries when a wrench slipped while he was working on a malfunctioning pump during a storm.
Danos Curole is in the business of supplying workers to various oil companies, including Texaco. It supplied its employees, purportedly including Allen, to Texaco pursuant to "Master Service Agreement." ( See Def.'s Me. Supp. Mot. Summ. J. Ex. A.) This contract states that Danos Curole shall perform as an "independent contractor" and that Texaco shall not exercise control over the employees of Danos Curole. ( See Id. Ex. A ¶ 1 D.)
Texaco employed Allen to produce oil and gas from Texaco's lease site. At the time of the accident, the crew for the West Cameron 643A platform consisted of two Texaco payroll employees and one contract employee, plaintiff. ( See Id. Ex. B.) No supervisory personnel from Danos Curole maintained a physical presence on the platform. Plaintiff worked seven days on/seven days off shifts, with Texaco determining plaintiff's work schedule and the amount of time he worked on the West Cameron 643A platform. ( See Id. Exs. B D at 39). Texaco provided all food, lodging, and transportation to and from the platforms. ( See Id. Exs. B E at 27). Texaco also provided all tools and equipment Allen needed to perform his work on the platform. ( See Id. Ex. B.)
Texaco provided plaintiff with daily work orders and job responsibilities. ( See Id.) Texaco personnel provided additional instructions to plaintiff on what plaintiff needed to do while working on the platform and what his responsibilities included. ( See id. Exs. B D at 51-52). Plaintiff routinely submitted reports to Texaco's production supervisor, and plaintiff attended all production meetings conducted and attended by Texaco personnel. ( See Id. Exs. B.) Under the Texaco and Danos Curole contract, Danos Curole billed Texaco for the hours plaintiff worked, and Danos Curole issued plaintiff his paycheck. ( See Id. Ex. B.) Texaco had the right to discharge plaintiff from his job as an operator on the platform. ( See Id. Ex. B.)
Texaco moves for summary judgment on the grounds that plaintiff is Texaco's borrowed servant, and therefore plaintiff's exclusive remedy is workers compensation benefits under the LHWCA. Plaintiff argues that summary judgment is inappropriate because Texaco did not retain authoritative direction and control over the performance of his work and that Texaco merely monitored plaintiff's work. Rather, plaintiff asserts that he was an independent contractor working for Texaco.
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 Allen 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 Allen was Texaco's borrowed employee, Texaco will be vested with § 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 Gaudet, 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. However, in Gaudet, 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)).
Danos Curole furnished plaintiff's services as a platform worker to Texaco under a "Master Service Agreement," which states that Texaco has no control of Danos Curole's employees. ( See Def.'s Mem. Supp. Mot. Summ. J. Ex. A ¶ 1D.) At the time of the accident and for the seventeen months prior to the accident, plaintiff was the only Danos Curole employee on the Texaco platform and did not have anyone from Danos Curole assisting or supervising his work. ( See id. Ex. D. at 43.) Plaintiff testified that he received his daily assignments from Texaco personnel. ( See id. Ex. D. at 51.) Texaco personnel also supervised Danos Curole employees on Texaco platforms. ( See id. Ex. C at 75.) Plaintiff's direct supervisor was a Texaco employee. ( See id. Ex. E at 106, 120, 121.) Texaco set plaintiff's work schedule, determined when crew changes occurred, and decided whether or not to discharge Danos Curole employees, such as plaintiff, from Texaco assignments. ( See id. Ex. E at 14 76.) Further, Texaco decided whether to evacuate plaintiff from the platform and who was essential to the platform's operation. ( See id. Ex. E at 18, 30-31.) Moreover, Danos Curole did not have any representatives on the platform to supervise or direct plaintiff's work for the last seventeen months of plaintiff's job aboard the platform. ( See Id. Ex. D at 49-50.) Danos Curole's personnel coordinator testified that he had no knowledge of how plaintiff conducted his job. ( See Id. Ex. E at 71.) Thus, Texaco argues that there is thus no factual dispute as to who supervised plaintiff's work on the platform. Compare 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).
That plaintiff used his own discretion in evaluating the safety of tasks without direction from Texaco does not preclude a finding of borrowed employee status when Texaco personnel told them "what work to do, and when and where to do it." Melancon, 834 F.2d at 1245. This Court does not interpret the control factor to require that the borrowed employer direct each and every action taken by the borrowed employee. Moreover, that Danos Curole personnel spoke with plaintiff during the storm, met with plaintiff on his days off, gave plaintiff the authority to refuse work if he felt unsafe, and told plaintiff to contact Danos Curole if anything endangered him does not defeat borrowed employee status because these contacts were only incidental to the central purpose of his employment, to maintain gas production from Texaco's platform. See Moody v. Callon Petroleum Operating Co., 1999 WL 596268, at *3 (E.D. La. Aug. 3, 1999). Although plaintiff makes much of facts indicating that Danos Curole showed "concern" for him when he was left on Texaco's platform during a storm in the Gulf, such a natural inclination does not change the nature of plaintiff's relationship with Texaco. After reviewing all of the relevant deposition testimony and other evidence, the Court finds that the supervision and instruction provided by Texaco rose above "mere suggestion of details or cooperation." Accordingly, the control factor weighs in favor of finding that plaintiff was Texaco's borrowed employee status as to plaintiff.
2. Whose Work was Being Performed?
There is no dispute that Danos Curole provided personnel and services to Texaco to assist in the operation of the West Cameron 643A platform. The West Cameron 643A is owned and operated by Texaco. ( See Def.'s Mem. Supp. Summ. J. Ex. B.) The record indicates that the maintenance and operations conducted by plaintiff did in fact promote Texaco'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?
Danos Curole entered into a master service contract with Texaco. This contract provides in pertinent part:
D. Contractor's Status
The parties acknowledge that Contractor is an independent Contractor. As such, Texaco shall have no voice in the discharge supervision, or control of Contractor's employees, representatives or subcontractors or in fixing their numbers, compensation, or hours of service. Texaco shall have no right to control the manner of Contractor's performance but Texaco and its representatives shall have the right to inspect the work performed and to make suggestions and comments thereon.
( See id. Ex. A.) Although the contract specifically calls for Danos Curole 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 discussed supra, the evidence here indicates that Danos Curole did not instruct plaintiff on how to perform his duties on the Texaco platform. Indeed, Danos Curole's personnel coordinator testified that the contract's terms did not reflect the reality of the situation. In fact, when asked if the Danos Curole and Texaco relationship was consistent with the contract, Ronald Ratcliff, Danos Curole's account manager and former personnel coordinator, answered as follows:
Q: My question was: Is your understanding of the relationship, as it worked day by day in the relationship with Texaco, consistent with what you just read?
A: Well, can I see it again?
Q: Yes, sure.
A: I mean, it's a tough question because, I mean, they [Texaco] have full voice in discharge. They have full voice in compensation. They have full voice in supervision. I mean, they tell us when they don't want an employee. It's not us telling them we don't think he should work out there for you no more. It's them telling us when our employees should get a raise. This says one thing, but some things happen differently. Just because they're under Texaco's supervision, they see their job daily performance. That says that, but you know, I can't give a raise unless Texaco approves it.
* * *
Q: And it says as such, Texaco will have no voice in the discharge. You say they have all the voice in the discharge?
A: Yes. If they don't want somebody, then we replace them.
Q: They tell you all to replace them?
A: That's our business.
Q: What would happen, if Texaco didn't like what an employee was doing, they would tell you and it would be your company's job to discharge them?
A: Yes.
Q: What about supervision or control of the contractor's employees?
A: What you [sic] mean by supervision?
Q: Supervision and control.
A: Every field has a field foreman.
Q: And the filed foreman is an employee for whom?
A: Texaco.
( See Def.'s Mem. Supp. Summ. J. Ex. E at 14-16.) Thus, in reality, Texaco had control of discharge and compensation and Danos Curole employees were under Texaco's supervision. ( See id.) Even plaintiff himself testified that he received his daily instructions from Texaco personnel. ( See Id. Ex. D at 51.) Like Melancon, Texaco told plaintiff "what work to do, and when and where to do it." 834 F.2d at 1245. The Court thus finds that the contract provision was altered by the reality at the work site, and the provision does not prohibit a finding of borrowed employee status.
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 Texaco platform for two years 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) (Vance, J.) (two months). Moreover, plaintiff knew that his nominal employer, Danos Curole, was a contract company that loaned temporary employees to other companies and that Texaco was one of those companies. ( See Def.'s Mem. Supp. Mot. Summ. J. Ex. D at 39.) Plaintiff understood that the West Cameron 643A was owned by Texaco and that Texaco personnel instructed plaintiff on what to do while working on this platform. ( See id. Ex. D at 39 51-52.) In fact, in his deposition plaintiff himself characterized his job as "working for Texaco." ( See id. Ex. D at 45 48.) Plaintiff shared the same duties as Texaco operators and participated in production meetings conducted by Texaco personnel. ( See id. Ex. B.) This factor indicates that plaintiff acquiesced in the Texaco work arrangement and favors borrowed employee status.
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. Danos Curole hired plaintiff and gave him the Texaco assignment; however, Danos Curole's personnel coordinator testified that he has no knowledge regarding plaintiff's daily work performance and responsibilities. ( See id. Ex. E at 71.) Plaintiff admitted that Texaco personnel assigned daily tasks to plaintiff. ( See id. Ex. D at 51-52.) Plaintiff has submitted no evidence that the contact between plaintiff and Danos Curole while plaintiff was on the job site consisted of more than occasional visits and phone calls from Danos Curole. Based on this evidence, the Court finds that factor five weighs in favor of borrowed employee status.
6. Who Furnished the Tools and the Place of Performance?
Texaco furnished plaintiff with the place of employment, meals, lodging, and transportation to and from work. Texaco also provided plaintiff with the tools he needed on the job. ( See id. Exs. B.) There is no evidence that Danos Curole provided plaintiff with any tools needed to perform his work assignments. This factor also favors borrowed employee status.
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 had worked for Texaco for approximately two years prior to the alleged accident. The Court finds that the length of employment favors borrowed employee status.
8. Who Had the Right to Discharge the Employee?
While Texaco did not have the right to terminate plaintiff's employment with Danos Curole, it did have the right to terminate his relationship with Texaco. ( See Def.'s Mem. Supp. Mot. Summ. J. Ex. E 14-16.) This fact favors borrowed employee status. See Melancon, 834 F.2d at 1216; Capps, 784 F.2d at 618.
9. Who Had the Obligation to Pay the Employee?
Finally, with respect to the last factor, Danos Curole paid plaintiff with funds received from Texaco. Danos Curole billed Texaco for the hours plaintiff worked and would in turn issue a paycheck to plaintiff. ( See Def.'s Mot. Summ. J. Ex. B.) The Fifth Circuit has consistently held that this type of payment arrangement weighs in favor of a finding of borrowed employee status. See Melancon, 834 F.2d at 1246; Capps, 784 F.2d at 618.
III. CONCLUSION
For the foregoing reasons, the Court finds no factual dispute as to the Ruiz factors and that, as a matter of law, the facts overwhelmingly support a finding that plaintiff was Texaco's borrowed employee. As such, the LHWCA bars plaintiff's suit against Texaco. The Court hereby GRANTS defendant's motions for summary judgment and dismisses plaintiff's claims against Texaco with prejudice.