Opinion
CIVIL ACTION NO. 19-1744
2020-04-17
Wayne FORET v. JAMES MARINE HAHNVILLE, LLC, and Hutco, Inc.
Timothy J. Young, Joseph Benedict Marino, III, Megan C. Misko, Tammy D. Harris, Young Firm, New Orleans, LA, for Wayne Foret. Stephen Marcus Larzelere, Kuchler Polk Weiner, LLC, New Orleans, LA, for James Marine Hahnville, LLC.
Timothy J. Young, Joseph Benedict Marino, III, Megan C. Misko, Tammy D. Harris, Young Firm, New Orleans, LA, for Wayne Foret.
Stephen Marcus Larzelere, Kuchler Polk Weiner, LLC, New Orleans, LA, for James Marine Hahnville, LLC.
SECTION "R" (5)
ORDER AND REASONS
SARAH S. VANCE, UNITED STATES DISTRICT JUDGE
Before the Court is defendant James Marine Hahnville LLC's motion for summary judgment, and defendant Hutco, Inc.’s motion for summary judgment. Because issues of material fact exist as to Foret's seaman status, the Court denies James Marine's motion. But because Brian Dillon is a borrowed servant of James Marine, the Court grants Hutco's motion.
R. Doc. 27.
R. Doc. 22.
I. BACKGROUND
This case arises out of an injury of a shipyard worker. Plaintiff Wayne Foret was employed by James Marine Hahnville, LLC. Foret worked as an operator at James Marine's shipyard, where he assisted in the repair of various vessels. In carrying out his duties at the shipyard, Foret operated various pieces of equipment, including a crane barge, which consists of a movable crane driven onto the barge and secured to the barge via chains and shackles.
R. Doc. 1 at 2 ¶ IV.
See R. Doc. 27-3 at 2, 10-16; see also R. Doc. 1 at 2 ¶ IV.
Plaintiff alleges that on May 1, 2018, he was acting as a spotter for Brian Dillon. Dillon is an employee of Hutco, Inc., and was a contract worker for James Marine. Dillon was using a telehandler to lower a vessel shaft onto two blocks of wood on the dock. The shaft rolled off of the two blocks of wood and onto plaintiff's foot, injuring him. Plaintiff alleges that Dillon caused his injury. Foret sued both James Marine and Hutco, alleging that he is a Jones Act seaman. Both defendants move for summary judgment on plaintiff's claims.
R. Doc. 27-4 at 36; R. Doc. 27-5.
R. Doc. 27-5.
Id. ; see also R. Doc. 1 at 2 ¶ VI.
R. Doc. 1 at 2 ¶ VI.
II. LEGAL STANDARD
Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). "When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co. , 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp. , 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983) ); see also Little , 37 F.3d at 1075. "No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." EEOC v. Simbaki, Ltd. , 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’ " Int'l Shortstop, Inc. v. Rally's, Inc. , 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease , 755 F. Supp. 948, 951 (D. Colo. 1991) ). "[T]he nonmoving party can defeat the motion" by either countering with evidence sufficient to demonstrate the "existence of a genuine dispute of material fact," or by "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.
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 pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex , 477 U.S. at 325, 106 S.Ct. 2548. 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 id. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for resolution. See, e.g. , id. ; Little , 37 F.3d at 1075 (" Rule 56 ‘mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ " (quoting Celotex , 477 U.S. at 322, 106 S.Ct. 2548 (emphasis added))).
III. DISCUSSION
Defendant James Marine moves to dismiss plaintiff's claims on the grounds that he is not a Jones Act seaman. Hutco moves to dismiss plaintiff's claims on the grounds that James Marine was Dillon's borrowing employer, and therefore Foret cannot maintain a claim against Hutco.
A. James Marine's Motion – Seaman Status
In Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995), the Supreme Court established a two-factor test to determine whether a worker is a Jones Act seaman. First, the "worker's duties must contribute to the function of the vessel or to the accomplishment of its mission." Chandris , 515 U.S. at 376, 115 S.Ct. 2172. Second, the "worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and its nature." Id. At trial, "[a]n injured person claiming the benefits of the Jones Act has the burden of establishing seaman status." See Barrett v. Chevron U.S.A., Inc. , 752 F.2d 129, 132 (5th Cir. 1985).
For the purposes of its motion for summary judgment, James Marine does not dispute that Foret satisfies the first prong of the Chandris test, i.e. , that Foret's work contributed to the function of the crane barge, which was a vessel in navigation. James Marine does dispute, however, that Foret satisfies the second prong of the test, as it argues that Foret's connection to the vessel was not substantial in either its duration or nature.
1. Substantial in Duration
Plaintiff's recollection was that he spent fifty to sixty percent of his time working on James Marine's crane barge. The Supreme Court has adopted the general guideline that "[a] worker who spends less than about thirty percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act." Chandris , 515 U.S. at 371, 115 S.Ct. 2172. "[C]ourts may vary the rule depending on the facts of a particular case." Alexander v. Express Energy Servs. Operating L.P. , 784 F.3d 1032, 1034 (5th Cir. 2015). Defendant contends that plaintiff's recollection is insufficient evidence to create an issue of fact that he worked on the crane barge thirty percent of his time.
At his deposition, plaintiff was asked what he recalled about the amount of time he worked on the crane barge. Plaintiff was asked: "What is your recollection of your first six weeks of employment with James Marine; how much time did you spend working on the crane barge versus the other equipment in the yard?" Foret responded: "A good sixty percent of my time, fifty to sixty percent of my time on the barge." When questioned about his basis for determining what percentage of his time he spent working on the crane barge, plaintiff acknowledged: "I was just going off the time I figure I spent on that barge over my whole time. I didn't sit down with a calculator, divide numbers and time, that's just an estimate of what I believe my time was."
R. Doc. 37-2 at 24.
Id.
Id. at 21.
Defendant contends that plaintiff's estimation is wrong, and that he in fact worked on the crane barge less than thirty percent of the time he worked for James Marine. In support of this argument, defendant relies on its own estimate arrived at by Michael Hildago, Foret's supervisor. Hildago attests that he examined Foret's timecards, James Marine's Detail Transaction Reports, and his own handwritten notes. Based on these records and his own recollection, Hildago concluded that plaintiff worked on the crane barge a total of 84.5 hours out of 332.75 hours of work in total. This amounts to 25.39% of time worked on the crane barge.
See R. Doc. 27-8 at 7 ¶¶ 64-65.
Id. at 7 ¶ 65.
The Court finds that defendant has failed to show the absence of a material fact issue on whether Foret had a connection to a vessel that was substantial in duration. First, the number Hildago arrived at was only an estimate. Hildago conceded at his deposition that there was no single document which would show how much plaintiff worked on the crane barge during his time at James Marine. Indeed, the documents Hildago relied on to reach his estimate do not demonstrate on their face how much time plaintiff worked on the crane barge. The personal notes that Hildago relies on include only vague descriptions of various jobs, and largely lack any time indications. For example, Hildago's notes for April 12, 2018, reference only the boat that was worked on (the "Lauren Elizabeth") and list various jobs (such as "24 Hand Rail" or "3# Shore Power") with no time indications. The Detail Transaction Reports Hildago relies on do have some time indications, but they do not identify which employee used which equipment and for how long.
R. Doc. 37-2 at 10 ("Q. Other than the ... documents that we've gone through today, there's nothing else that specifically says at James Marine, ‘This is the specific equipment I was using when I was doing crane service?’ A. No.").
See generally R. Doc. 27-13.
Id. at 13.
See R. Docs. 27-17, 27-18, 27-19, 27-20, and 27-21 (filed under seal).
Moreover, Hildago's affidavit does not explain how he reached his conclusions from these documents. Rather, it states only that "based on his personal observations, memory of the jobs, and review of the documents, he was able to determine for each job what work plaintiff was performing [and] what equipment he would have been using." The Court therefore cannot verify that Hildago's estimation is correct, as Hildago's estimation necessarily included his own judgment about these documents, which is at least in part subjective. Further, determining that Hildago's estimate requires rejection of Foret's memory of how he spent his time requires the Court to weigh Hildago's testimony against Foret's testimony which is improper on a motion for summary judgment.
R. Doc. 27-8.
The Court also notes that the timecards Hildago relies on lend some support to plaintiff's estimate that he worked more than thirty percent of his time on the crane barge. While the timecards do not provide enough information to tell how much time Foret worked on the crane barge during his entire time at James Marine, there was a segment of time where the reporting permitted a determination of how long plaintiff was likely using the crane barge. During this period, the codes on the timecards were more precise. Based on an examination of these records, albeit for only a small portion of the time plaintiff worked for James Marine, plaintiff worked more than thirty-nine percent of his time on jobs that Hildago conceded would require the crane barge. This is therefore some support for Foret's argument that he worked more than thirty percent of his time on the crane barge.
See R. Doc. 27-9 at 12-15 (time cards with more specific codes); see also R. Doc. 37-2 at 8 (Hildago's deposition, in which he acknowledges that the codes 8, 9, 12, and 34 signal use of the crane barge).
The Court also considers that Hildago estimates that Foret spent 25.39% of his time working on the crane barge. This is less than five percent from the thirty-percent threshold, close enough that errors in judgment or bias in its application could be decisive to Foret's detriment. And as discussed above, this number is only an estimate. Moreover, Foret recalls that he worked more than thirty percent of his time on the crane barge, and the specific time cards lend some support to this argument.
James Marine leans heavily upon the case Ziegler v. Boh Bros. Construction Co. , No. 14-612, 2015 WL 3772620 (E.D. La. June 17, 2015), to argue no issue of material fact exists here. But this case is not controlling precedent, and it is distinguishable. There, the plaintiff's supervisors calculated the plaintiff's vessel-based work at only seven percent, and there was no evidence, apart from plaintiff's conclusion, that supported a proposition that he spent anywhere close to thirty percent of his time on a vessel.
Based on the evidence in the record as a whole, the Court concludes there is an issue of material fact as to whether Foret worked more than thirty percent of his time on a vessel and therefore whether Foret has a connection to a vessel that is substantial in duration.
2. Substantial in Nature
James Marine also argues that Foret cannot claim seaman status because his connection to a vessel was not substantial in nature. The Supreme Court has explained that to have a connection to a vessel that is substantial in nature, a worker must "face regular exposure to the perils of the sea." Harbor Tug & Barge Co. v. Papai , 520 U.S. 548, 560, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997).
James Marine contends that Foret did not face regular exposure to the perils of the sea because the crane barge would never cross the river, and would never be great distances from the shore. But "courts have consistently rejected the categorical assertion that workers who spend their time aboard vessels near the shore do not face maritime perils." Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 934 (5th Cir. 2014).
James Marine's remaining arguments are variations on the same theme. For example, James Marine argues that the crane barge was rocked only by minimal waves from the river, that the crane barge would not be used when winds exceed 25 miles per hour, that when the crane barge was in use, it would generally be secured next to the vessel or barge which is being repaired, and that Foret did not identity any job he worked on while the barge was being towed. But the Fifth Circuit has affirmed that crane barge workers in the Mississippi River confronting similarly diminished risks as Foret are subject to the perils of the of the sea. For example, in In re Endeavor Marine , 234 F.3d 827 (5th Cir. 2000), the court found that a crane operator who worked exclusively on a stationary barge used to load or unload cargo at a Mississippi River dock facility was "regularly exposed to the perils of the sea." Id. at 935. Similarly, in Naquin , the court considered whether a crane operator who regularly worked aboard lift boats which were jacked up in a shipyard has a connection to a vessel that was substantial. The Court specifically found that "[w]hile these near-shore workers may face fewer risks, they still remain exposed to the perils of a maritime work environment." Naquin , 744 F.3d at 934. It also noted that there are many cases where it has found a worker a seaman even though the employee worked on a "quiet inland canals and waterways." Id. at 935. James Marine offers no reason for the Court to find that Foret's circumstances are materially different from the plaintiffs’ circumstances in In re Endeavor Marine or Naquin . A jury could reasonably find that Foret was subject to the perils of the sea, and therefore had a connection to a vessel that was substantial in nature.
R. Doc. 27-1.
Because genuine disputes of material fact exist both as to whether Foret's connection to the crane barge was substantial in duration and whether Foret's connection to the crane barge was substantial in nature, the Court denies James Marine's motion for summary judgment.
B. Hutco's Motion – Borrowed Servant
Defendant Hutco, Inc. also moves for summary judgment against Foret. Hutco first argues that if plaintiff is not a Jones Act seaman, he is a maritime worker who is subject to the Longshore and Harbor Worker's Compensation Act, 33 U.S.C. § 901, et seq. If plaintiff is subject to the LHWCA, his claims are limited, as LHWCA provides that compensation and medical benefits are the sole remedy of a longshoreman or harbor worker against his or her employer. See id. § 933(i). Here, the Court has found that plaintiff's seaman status remains an issue of material fact, and therefore cannot say that the LHWCA necessarily applies.
But this does not end the inquiry. Hutco further argues that Brian Dillon, the worker Foret alleges injured him, is a borrowed servant of James Marine. If Dillon were a borrowed servant, Foret has no claim against Hutco, Dillon's nominal employer, for an injury caused by Dillon, because the predicate for respondeat superior does not exist. See Crawford v. BP Corp. N.A., Inc. , No. 13-445, 2015 WL 1190123, at *1 (E.D. La. Mar. 16, 2015) (finding that a plaintiff could not sue a co-employee's nominal employer because he was the borrowed employee of a separate company). Although usually applied in the LHWCA context, the Fifth Circuit has also applied the borrowed servant test to Jones Act seamen. See Hall v. Diamond M. Co., 732 F.2d 1246 (5th Cir. 1984).
The Fifth Circuit has held that "in absence of substantial evidence to the contrary ... the issue of whether a relationship of borrowed servant exist[s] is a matter of law." Ruiz v. Shell Oil Co. , 413 F.2d 310, 341 (5th Cir. 1969). Here, the relevant facts are not in dispute. Rather, plaintiff disputes the legal conclusion that should be drawn from the facts. This is a question of law for the Court.
Courts have developed a nine-factor test to determine whether borrowed servant status exists. The nine factors are:
(1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or 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?
Gaudet v. Exxon Corp. , 562 F.2d 351, 355 (5th Cir. 1977). "No single factor, or combination of them, is determinative." Brown v. Union Oil Co. of Cal. , 984 F.2d 674, 676 (5th Cir. 1993). Courts often emphasize the first factor of who has control over the employee. See, e.g. , Melancon v. Amoco Prod. Co. , 834 F.2d 1238, 1244-45 (5th Cir. 1988).
1. Control
The first inquiry is control. James Marine clearly had control over Dillon's work. James Marine supervised Dillon's work and gave him instructions on what to do and how to do it. James Marine also had control over the shipyard Dillon worked. And Dillon testified at his deposition that he had minimal contact with Hutco since working at James Marine, which further indicates that Hutco lacked control over Dillon's work. This factor therefore weighs in favor of borrowed servant status.
R. Doc. 22-5 at 9-10 ("Q. As far as telling you what you had to do for the day and giving you your instructions on what to do and how to do it, what company would provide that to you? Would it be Hutco or James Marine? A. James Marine.").
Id. at 10 ("Q. As far as overall control of that workplace and what you did in that workplace, would that be Hutco or James Marine? A. James Marine.").
Id. at 13 ("Q. So, essentially, once you started working at the James Marine yard, your contact with Hutco and the Hutco office is minimal? A. Right.").
2. Whose Work?
The second factor—whose work was being performed—is not disputed. Dillon unequivocally stated at his deposition that he was performing James Marine's work. This factor therefore weighs in favor of borrowed servant status.
R. Doc. 36 at 5 ("Plaintiff does not dispute that he, along with other JMH and Hutco employees, were performing operator work at the Hahnville facility for JMH's benefit.").
R. Doc. 22-5 at 10 ("Q. And when you were out there working at the James Marine facility, were you doing the work of Hutco or were you doing the work of James Marine? A. James Marine.").
3. Agreement
James Marine and Hutco had a labor agreement which explicitly stated that Hutco "shall have and maintain complete control, direction, and responsibility over its own employees and subcontractors, and over the work." James Marine does not dispute this provision applies to Dillon. But courts have found borrowed servant status notwithstanding the existence of such a clause. See, e.g. , Gaudet v. Exxon Corp. , 562 F.2d 351, 358 (5th Cir. 1977) (finding a borrowed servant relationship when factors other than an agreement weighed heavily in favor of finding the employee was a borrowed servant); Crawford v. BP Corp., N.A. , 2015 A.M.C. 1119, 2015 WL 1190123 (E.D. La. 2015) (finding the parties’ performance had modified the contract so that the independent contractor clause was not dispositive). The Court therefore finds that although this factor weighs in plaintiff's favor, it does not require the Court to forgo granting the motion for summary judgment.
R. Doc. 36-3 at 10.
4. Did the Employee Acquiesce?
There is every indication that Dillon acquiesced in his work arrangement with James Marine. Dillon worked for James Marine for three years, including over a year before the accident, and there is no indication he ever objected to his work arrangement. The Court therefore finds this factor weighs in favor of finding a borrowed servant relationship.
R. Doc. 22-5 at 2-3 (deposition testimony of Dillon stating that he worked for James Marine for three years as of January 2020).
5. Did the Original Employer Terminate its Relationship?
This factor asks not whether Dillon's relationship with Hutco was severed, but whether he maintained contact with Hutco, and whether he was supervised exclusively by James Marine. See Hotard v. Devon Energy Prod. Co. L.P. , 308 Fed. App'x 739, 742 (5th Cir. 2009). Dillon testified that he had minimal interactions with Hutco after he began working for James Marine. He further testified that James Marine supervised his work. The Court therefore finds that this factor weighs in favor of borrowed servant status.
Id. at 13 ("Q. Okay. Do you speak to them regularly? A. No, sir. I never speak to them. Q. All right. So, essentially, once you started working at the James Marine yard, your contact with Hutco and the Hutco office is minimal? A. Right.").
Id. at 9-10 ("Q. As far as telling you what you had to do for the day and giving you your instructions on what to do and how to do it, what company would provide that to you? Would it be Hutco or James Marine? A. James Marine.").
6. Tools and Place
This factor is also undisputed. The relevant work was done exclusively at James Marine's yard, and the equipment was provided by James Marine. The Court therefore finds this factor weighs in favor of finding a borrowed servant relationship.
R. Doc. 36 at 8 ("Plaintiff does not dispute that Mr. Dillon's work during the few months prior to Plaintiff's injury was all performed at the JMH facility, and that the tools that he needed for the work were located on that platform.").
See R. Doc. 22-5 at 3 ("Q. All right. So you – you were hired on by Hutco and you've just been working at James Marine, the Hahnville facility? A: Yes, ma'am."); id. at 9 ("Q. As far as the equipment itself, what company owned that equipment? Was it Hutco or James Marine? A. James Marine.").
7. Length of Time
Dillon stated at his January 2020 deposition that he worked at James Marine for three years. Dillon had thus worked there for at least a year before the accident occurred in May 2018. Courts have found shorter time periods to be long enough to weigh in favor of finding borrowed servant status. See, e.g. , Williams v. Arco Oil & Gas, Inc. , No. 89-5201, 1990 WL 178722, at *2 (E.D. La. 1990) (finding that six months was a "significant length of time"), Hotard v. Devon Energy Corp., L.P. , No. 07-1476, 2008 WL 2228922, at *5 (M.D. La. 2008) (finding eleven months "weighs in favor of finding for borrowed employee status"). The Court therefore finds this factor weighs in favor of finding a borrowed servant relationship.
Id. at 2-3 ("Q. How long have you been working at James Marine? A. Three years.").
8. Right to Discharge
The inquiry under this factor is not which entity had the power to terminate the injured plaintiff's employment outright, but whether the borrowing employer had the authority to terminate the employee's services with the borrowing employer itself. See Melancon , 834 F.2d at 1246. Dillon testified at his deposition that if James Marine was not pleased with his work, it could "run [him] off that job." Therefore, this factor also weighs in favor of finding borrowed servant status.
R. Doc. 22-5 at 10.
9. Obligation to Pay
The final factor asks who had the obligation to pay Dillon. When the general employer uses funds to pay the employee that were received from the entity contracting the work, that entity in effect pays the employee. See Capps v. N.L. Baroid-NL Indus., Inc. , 784 F.2d 615, 618 (5th Cir. 1986). Here, although Hutco issued Dillon's paycheck, James Marine tracked Dillon's hours and paid Hutco for Dillon's work. The Court therefore finds this factor weighs in favor of borrowed servant status.
See id. at 10-11 ("Q. Okay. And so you're paid a certain amount per hour ... based upon the time that you worked at James Marine? A. Yes, sir."); see also R. Doc. 27-7 at 1-2 ¶ 7 (affidavit of James Hutchinson, Hutco's president, stating "James Marine paid Hutco for contract labor workers, such as Dillon, based upon the hours of work performed by the contract labor workers").
10. Conclusion
In sum, eight of the nine borrowed servant factors favor a borrowed servant relationship. Notably, the first factor, control, heavily favors a finding of a borrowed servant relationship. Accordingly, the Court finds that James Marine was Dillon's borrowing employer, and that therefore Hutco is entitled to summary judgment as to Foret's claims.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES James Marine's motion for summary judgment, and GRANTS Hutco's motion for summary judgment. The Court dismisses plaintiff's claims against Hutco WITH PREJUDICE. As the Court has granted Hutco's motion for summary judgment, Hutco's motion in limine is DISMISSED WITHOUT PREJUDICE.