Opinion
CIVIL ACTION NO. 20-883-JWD-EWD
2023-05-18
Jason PARKMAN v. W&T OFFSHORE, INC., et al.
Andy J. Dupre, The Dupre Law Firm, LLC, New Orleans, LA, Roland Thomas Christensen, Claire E. Schindler, Micajah D. Boatright, Pro Hac Vice, Arnold & Itkin, LLP, Houston, TX, Kurt B. Arnold, Pro Hac Vice, Houston, TX, Michael Paul Fruge', Paula Hartley Clayton, Richard J. Ward, III, Tony Clayton, Clayton, Fruge, Ward & Hendry, Port Allen, LA, for Jason Parkman. Robert R. Johnston, Constance Colley Waguespack, Courtney E. Crowell, Gillis W.P. Klotz, Pusateri, Johnston, Guillot & Greenbaum, LLC, New Orleans, LA, Blake Donewar, Danica C. Denny, Patrick J. McShane, Frilot LLC, New Orleans, LA, for W&T Offshore, Inc. Richard A. Cozad, Melissa A. Miller, Jonathan A. Tweedy, Schoeust, Bamdas, Soshea & BenMaier & Eastham, New Orleans, LA, for AGR FJ Brown, Inc.
Andy J. Dupre, The Dupre Law Firm, LLC, New Orleans, LA, Roland Thomas Christensen, Claire E. Schindler, Micajah D. Boatright, Pro Hac Vice, Arnold & Itkin, LLP, Houston, TX, Kurt B. Arnold, Pro Hac Vice, Houston, TX, Michael Paul Fruge', Paula Hartley Clayton, Richard J. Ward, III, Tony Clayton, Clayton, Fruge, Ward & Hendry, Port Allen, LA, for Jason Parkman. Robert R. Johnston, Constance Colley Waguespack, Courtney E. Crowell, Gillis W.P. Klotz, Pusateri, Johnston, Guillot & Greenbaum, LLC, New Orleans, LA, Blake Donewar, Danica C. Denny, Patrick J. McShane, Frilot LLC, New Orleans, LA, for W&T Offshore, Inc. Richard A. Cozad, Melissa A. Miller, Jonathan A. Tweedy, Schoeust, Bamdas, Soshea & BenMaier & Eastham, New Orleans, LA, for AGR FJ Brown, Inc. RULING ON MOTION FOR SUMMARY JUDGMENT OF W&T OFFSHORE, INC. JOHN W. deGRAVELLES, UNITED STATES DISTRICT JUDGE
Before the Court is the Motion for Summary Judgment ("Motion") (Doc. 143) brought by defendant W&T Offshore, Inc. ("W&T"). Co-defendant AGR/FJ Brown, LLC ("AGR") adopts W&T's Motion and asks that the Court give AGR the same relief W&T seeks. (Doc. 151.) W&T and AGR will be referred to collectively as "Defendants." The Motion is opposed by plaintiff Jason Parkman ("Plaintiff" or "Parkman"). (Doc. 165-2.) W&T filed a reply memorandum. (Doc. 166.)
The Court has carefully considered the law, facts in the record, and arguments and submissions of the parties and is prepared to rule. For the following reasons, the Motion is granted in part and denied in part.
I. FACTUAL BACKGROUND
This case arises from an accident which occurred on a fixed platform on the Outer Continental Shelf ("OCS") of the Gulf of Mexico on August 25, 2018. W&T owned the Ship Shoal 349-A oil and gas platform ("SS 349-A"). (W&T's Statement of Uncontested Facts (hereinafter, "SUMF"), Doc. 143-33 at 1, ¶¶ 1-2.) W&T contracted with Helmerich & Payne International Drilling Co. ("H&P") to provide a drilling rig (the H&P 107 drilling rig) to drill an oil and gas well (the "A-19 well") from the SS 349-A platform. (Id. at 1-2, ¶¶ 1-4.) The Daywork Drilling Contract ("Drilling Contract") between W&T and H&P is attached to the Motion. (Doc. 143-6.) W&T and H&P also entered into a SEMS Documents Agreement ("Bridging Agreement") that dictated "which company's operational safety policies, emergency response, and procedures would be implemented and apply depending on the operation being performed." (Doc. 143-33 at 3, ¶ 9, citing, inter alia, Doc. 143-7.)
Unless the Court notes otherwise, the facts referenced herein from the SUMF are admitted by Plaintiff in his Response to W&T's Statement of Undisputed Facts and Counter-Statement of Facts. Although they are joined in a single document (Doc. 165-3), Plaintiff's Response to W&T's Statement of Undisputed Facts are numbered separately from Plaintiff's Counter-Statement of Facts and therefore these two will be referred to separately as "RSUMF" and "PCSF" respectively.
The H&P 107 drilling rig and associated equipment along with H&P personnel were placed on the SS 349-A platform and began drilling. (SUMF, Doc. 143-33 at 2, ¶¶ 3, 6.) "H&P's responsibilities included performing all drilling related operations, supervising and overseeing the actions of its drilling crew, and servicing and maintaining all of its drilling equipment." (Id. at 2, ¶ 6, citing the Drilling Contract, Doc. 143-6 at §§ 101(c), 106, 301-02, 401, 403, 501-02.)
In addition, "W&T [hired] two drilling consultants, referred to as 'company men,' to be present on the drilling rig to monitor the drilling operations and confirm that W&T's drilling program was being implemented correctly." (Doc. 143-1 at 6.) The company men were payroll employees of AGR and were "assigned to perform services as [company men] for W&T pursuant to the Master Service Contract between W&T and AGR, dated June 10, 2013." (Doc. 143-1 at 6, citing Doc. 143-8 and 143-31.) The two company men on the SS 349-A platform at the time of the accident were Atlas Harrington (who was working the day shift) and Scotty Brubaker (who was working the night shift). (Doc. 143-1 at 6; PCSF, Doc. 165-3 at 6, ¶ 1.)
AGR has filed a Motion for Summary Judgment asking the Court to declare that Scott Brubaker "was a borrowed employee of [W&T]" at the time of the accident. (Doc. 131.) W&T opposes the motion, arguing that there are fact questions regarding whether Brubaker was a borrowed employee of W&T and, alternatively, that Brubaker may have been a dual employee of AGR and W&T. (Doc. 160 at 1.) W&T urges that, "[g]iven these factual issues, Brubaker's status as a borrowed employee is one that is more appropriately reserved for the jury." (Id. at 11.) W&T therefore concedes that a reasonable jury could find that Brubaker was an employee of W&T for purposes of imposing liability on W&T for Brubaker's acts and omissions. W&T does not argue otherwise in this Motion. Hence, for purposes of the present Motion, company man Brubaker will be treated as though he is an employee of W&T.
At the time of the accident, Plaintiff Parkman was employed by H&P as a Floorhand/Roughneck on the H&P 107 rig. (SUMF, Doc. 143-33 at 1, ¶ 1.)
On August 24, 2018, at approximately 3:00 p.m., the drill string became stuck in a salt formation and the H&P crew performed "jarring operations" to free it. (Id. at 3, ¶¶ 10, 11, 13.) The drill string was freed from the salt formation at approximately 9:30 p.m. that same day. (Id. at 3, ¶ 14.) Parkman came on duty at 6:00 p.m. as a part of the night crew. (Id. at 3, ¶ 12.)
Because the jarring operation may have damaged or loosened bolts or other components of the derrick or top drive assembly of the drilling rig, H&P policy required the H&P drilling crew to perform an inspection of the derrick and top drive before continuing drilling operations. (Id. at 3, ¶ 13.) It was decided that Plaintiff Parkman and another crew member would be hoisted into the derrick to conduct the inspection. (Id. at 4, ¶¶ 16, 19.)
In preparation for the lift, a pre-job safety meeting was held. The night shift crew was present and there is evidence in the record that company man Scotty Brubaker was also present. (See, e.g., Deposition of Jason Parkman, Doc. 165-9 at 53-59; Deposition of H&P Driller Tommy Bridges, Doc. 165-15 at 91-93; Doc. 143-12 at 111; Deposition of H&P Toolpusher Ronnie Atkinson, Doc. 165-14 at 24, 33.) During the discussion of how the inspection would be performed, an issue arose regarding where the top drive should be located during the lift. (Id.) According to Parkman, H&P Assistant Driller Daniel Miller told Brubaker that there was a "safer way" to perform the inspection of the top drive than while it was above the monkey board, i.e., lower the top drive below the monkey board so it could be inspected from the monkey board or, alternatively, lower the top drive to the rig floor so that the inspector would only have to be lifted some fifteen or twenty feet above the rig floor. (Deposition of Jason Parkman, Doc. 165-9 at 57-58.)
Deposition page numbers cited are the internal deposition page numbers and not the record document page numbers.
Brubaker denies that he was at the pre-job safety meeting. (Doc. 165-11 at 98.)
Brubaker was allegedly told by H&P crew members that H&P had never done this job with the top drive above the monkey board. (Id. at 58.)
We never go [ ] above the monkey board to inspect the top drive. We always bring it down to the monkey board and then you can go up on the monkey board and look at it right there.(Deposition of Jason Parkman, Doc. 165-9 at 58; see also id. at 63, 114-15.)
You never have to be suspended by any cables or anything like that. You're on a board. You're walking on your own two feet. And then also you can bring it down to the rig floor and you only have to go up [ ] 15 or 20 foot and then you can do everything right there . . . .
But Scottie overrode the decision and he's like look, [ ] we're crunched for time, we need to get this thing back up and operating as fast as possible, so let's do it this way. And he said don't bring it down. Just keep it where it's at.
Parkman's account is largely supported by the deposition testimony of H&P Driller Tommy Bridges. (Doc. 165-15 at 92-99.) Bridges testified that H&P usually performed this kind of inspection with the top drive below the monkey board. (Id. at 92-93.) He recalled Assistant Driller Daniel Martin asking Brubaker whether there was "any way we can let it down so that we don't have to go past the monkey board." (Id. at 94; see also id. at 95, 97.) It was his understanding that Brubaker refused this suggestion because of "well conditions." (Id. at 95.)
While Brubaker denied being at the pre-job safety meeting, he admitted that H&P Toolpusher Ronnie Atkinson asked him whether H&P would need to move the top drive during the inspection or lower it below the monkey board, to which Brubaker answered, "No, we want to leave it where it's at." (Doc. 165-11 at 96-97; see also id. at 49, 99) ("I told Mr. Ronnie we wanted to stay where we're at so -- . . . we couldn't lower the top drive.") This resulted in Atkinson having to seek approval from H&P's Rig Manager Tim Shannon to send an H&P worker above the monkey board. (Id. at 49.)
In W&T's corporate deposition, W&T's representative admitted that the decision not to lower the top drive was W&T's and that H&P lacked authority to make that decision.
Q. My question for you here, Mr. Cline, is if H&P, prior to this lift, said, "Hey, we're just going to lower this top drive back down. We're going to lower it 15 feet," does H&P have the unilateral authority out there on the date of the incident to lower that top drive down?(Corporate Deposition of W&T, Doc. 165-5 at 52.)
A. No.
Q. Who had that authority?
A. W&T would because that's a --
Q. Okay.
A. -- that's a hole decision.
Q. Dealing with the conditions of the well, correct?
A. Correct.
H&P Toolpusher Atkinson also confirmed that as to "the decision of where [the] top drive stops before the inspection, the final say is [with] W&T[.]" (Doc. 165-14 at 30.)
As Parkman was being lifted into the derrick by way of a personnel lift, his secondary fall protection (a "static line"), which was supposed to have been untied from the derrick's monkey board and hanging free during the hoisting operation was, in error, not untied. (SUMF, Doc. 143-33 at 6, ¶¶ 25-28.) As Parkman was lifted into the derrick, the static line or secondary lanyard became caught in one of the fingers of the monkey board. (Id. at 6-7, ¶ 31.) As the hoist continued to exert force upward, the entangled lanyard to which Parkman was attached resisted that force, resulting in two forces pulling Parkman's body in different directions causing Parkman's paraplegia. (Deposition of Jason Parkman, Doc. 165-9 at 124, 143-47.)
The static line is a steel cable to which a nylon lanyard is clipped. The other end of the safety lanyard clips to the back of the lifting harness worn by the rider being lifted, in this case, Parkman. (Deposition of Keim Davis, Doc. 165-8 at 45.) The Court also notes that the deposition just cited to, Doc. 165-8, is labeled as the deposition of "Keim Davis" in the record, but that the document itself shows the individual's name to be "Christopher Keim Davis." The Court will refer to this document as the deposition of Keim Davis.
While the parties disagree regarding some details surrounding the accident and vehemently disagree as to who was at fault for causing the accident, (see, e.g., SUMF, Doc. 143-33 and RSUMF, Doc. 165-3 at ¶¶ 17, 21, 28, 29, 34, 36, 38, 41), there is basic agreement as to how the accident occurred.
There is record evidence that by not following the suggestion of H&P crew members to lower the top drive from its location partly above and partly below the monkey board, this forced Parkman to be lifted through a tight gap between the monkey board and its fingers on the one hand and the fifteen-foot top drive on the other. (See e.g., Deposition of Keim Davis, Doc. 165-8 at 75-76.) According to record evidence, it is in this narrow gap that Plaintiff's lanyard got caught. (See e.g., H&P Corporate Deposition, Doc. 165-10 at 272.)
In addition to the lay testimony on this point, Plaintiff's experts both opined that the decision not to lower the top drive to a point below the monkey board created dangers which could have been avoided had the top drive been lowered. (Report of Edward R. Zeigler, Doc. 134-11 at 11; Report of Eugene Sweeney, Doc. 135-6 at 4, 6.)
W&T has filed Daubert motions to exclude Plaintiff's two experts on the grounds that "[their] opinions improperly conflate the regulatory duties an offshore leaseholder and/or operator owes to the United States Government with the legal duties owed to the employees of its third-party contractors under Louisiana state law. Relatedly, several of [the experts'] opinions are inadmissible legal conclusions, and thus, must be excluded." (Doc. 134 at 1; Doc. 135 at 1.) These motions have not been ruled upon. The Court notes that the opinions referenced in the text above do not involve legal conclusions or an alleged conflation of duties owed to the government with duties owed under Louisiana law.
W&T's corporate representative stated that he "strongly agreed" that if the inspection had not required Parkman to be lifted past the level of the monkey board, the accident would not have occurred. (Corporate Deposition of W&T, Doc. 165-5 at 248-49 and Exhibit 24 thereto.)
Following the accident, investigations were conducted by both H&P and W&T and both "attributed the incident to the failure of the H&P crew to untie the static line before performing the personnel lift, since this caused Parkman to be pulled closer toward the pipe fingers as he was lifted towards the monkey board." (SUMF, Doc. 143-33 at 8, ¶¶ 41, 42, record citations omitted.)
II. SUMMARY OF ARGUMENTS OF THE PARTIES
A. W&T
In broad strokes, W&T claims it is entitled to summary judgment because:
The uncontested facts establish: (1) Plaintiff's employer, [H&P] was an independent contractor of W&T; (2) the work performed by H&P for W&T was not ultrahazardous; (3) W&T did not retain or exercise operational control over the worked performed by H&P; and (4) W&T was not independently [at fault] in causing or contributing to Plaintiff's injuries.(Doc. 143 at 1; see also Doc. 143-1 at 5-6.) Of these four points, only the last two are contested by Plaintiff.
"[T]he plaintiff concedes that W&T and the plaintiff's employer, [H&P], had an independent contractor relationship." (Doc. 165-2 at 2.) Furthermore, Plaintiff does not argue that W&T was engaged in an ultrahazardous activity.
In addition to the Drilling Contract, (Doc. 143-6), W&T and H&P entered into a "Bridging Agreement" that dictated "which company's operational safety policies, emergency response, and procedures would be implemented and apply depending on the operation being performed." (Doc. 143-33 at 3, ¶ 9, citing, inter alia, Doc. 143-7). "The Bridging Agreement made clear that H&P's operational safety policies and procedures controlled during drilling operations or [on] any operation involving H&P's drilling equipment." (Id.) It is undisputed, says W&T, that "H&P was following its own operating procedures regarding [the] inspection of its rig equipment" at the time of the accident. (Doc. 143-33 at 7, ¶ 35.)
W&T argues that under the controlling law, the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331, et seq., the law of the adjoining state (in this case, Louisiana) "applies as surrogate federal law to the extent that it is not inconsistent with existing federal law and regulations." (Doc. 143-1 at 16, citation omitted.) Plaintiff does not disagree. (Doc. 165-2 at 31.)
Under Louisiana law, a principal is generally not liable for the negligent acts of its independent contractor unless the contractor was performing ultrahazardous activities (not an issue here), if the principal retains operational control over its contractor's negligent acts or, finally, if the principal expressly or impliedly authorizes its contractor's negligent acts. (Doc. 143-1 at 16-17.) Again, Plaintiff does not disagree with this legal proposition. (Doc. 165-2 at 2.)
As is discussed in more detail infra, the disagreement between the parties centers on whether W&T retained operational control over H&P's conduct and whether it expressly or impliedly ordered or authorized its negligent conduct. (Doc. 165-2 at 2.) In addition, Plaintiff contends that W&T was independently negligent. (Id. at 3.)
The post-accident investigations by both W&T and H&P concluded that the accident was caused by "the failure of the H&P crew to untie the static line before performing the personnel lift, since this caused Parkman to be pulled closer [to] the pipe fingers as he was lifted toward the monkey board." (Doc. 143-33 at 8, ¶¶ 41, 42.)
Plaintiff admits this but states that he "expand[s] upon as under paragraph 4. above." (Doc. 165-3 at 6, ¶ 42.) There is no "expansion" at paragraph 4. (Id. at 1, ¶ 4.)
1. Operational Control - Supervision
W&T points the Court to the Fifth Circuit test for the operational control exception which requires the Court to first look at "whether and to what extent the right to control [ ] has been contractually reserved by the principal." (Doc. 143-1 at 17, quoting Coulter v. Texaco, Inc., 117 F.3d 909, 912 (5th Cir. 1997).) W&T argues that the Fifth Circuit requires the Court to give greater weight to "contractual retention." (Id. at 18, citing Coleman v. BP Exploration and Production, Inc., 19 F.4th 720, 730 (5th Cir. 2021).)
Second, the Court must "review . . . whether the principal exercised control through an express or implied order to the contractor to engage in an unsafe work practice leading to an injury." (Id. at 17, citing Coulter, 117 F.3d at 912.) Such "[o]perational control exists only if the principal has direct supervision over the step-by-step process of accomplishing the work such that the contractor is not entirely free to do the work in his own way." (Id., quoting Fruge, ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 564 (5th Cir. 2003), cert. denied, 540 U.S. 1161, 124 S.Ct. 1171, 157 L.Ed.2d 1205 (2004) (emphasis added by W&T).)
W&T argues that its contract with H&P shows that H&P was solely responsible for its work, including the personnel lift being performed at the time of accident. (Doc. 143-1 at 18-19, record citations omitted.) This is also made clear, says W&T, in the Bridging Agreement. (Id. at 19-20.) As to Section 503 of the Drilling Contract, W&T argues that "[a] review of the entire section makes it clear that operational control contractually rested with H&P" and Plaintiff's argument to the contrary is not supported by the contract's language or the testimony or other record evidence. (Id. at 21-23.)
2. Operational Control - Ordering or Authorizing "Unsafe Work Practices"
Likewise, argues W&T, it did not exercise operational control by expressly or impliedly ordering or authorizing H&P to engage in any negligent conduct that led to Plaintiff's injuries. (Id. at 23.) It maintains that Plaintiff is in error when he argues that the company man's "indication that the top drive could not be lowered constitutes [such] an express or implied order/authorization" since "the two most senior members of the H&P night crew[, H&P's toolpusher and driller,] . . . agreed with the company man's explanation of why the top drive should not be lowered . . ." (Id. at 24-25; see also id. at 11-12.)
According to W&T, Parkman himself testified that the W&T company man never instructed the H&P crew how to perform the step-by-step process of the personnel lift but even if the company man did order the lift to be made with the top drive above the monkey board, this does not qualify for operational control since one must look at the specific "instrumentality that caused the injury and not the work's overall purpose." (Id. at 26, citing Coleman, 19 F.4th at 732.) Here, the injury-producing instrumentality was the static line and monkey board with which W&T had no involvement. (Id.)
3. Independent Negligence
W&T argues that to be liable for independent negligence, it must have either created the unsafe condition or exercised control over the decision to work in an unsafe condition, and it did neither. (Id. at 28.) The unsafe condition (the static line tied off to the monkey board handrail) was created by H&P, not W&T. (Id.) Likewise, the decision to make the personnel lift was H&P's. (Id.) Furthermore, H&P's decision to make the lift in this way was a violation of H&P's Hoist Job Safety Analysis ("JSA") which supports W&T's Motion. (Id. at 28-30, citations omitted.)
W&T counters Plaintiff's argument that W&T created the hazard by refusing to allow the H&P crew to lower the top drive below the money board or rushed the H&P crew in its work, by pointing to the following: (1) it did not rush the H&P crew but, in any event, that is immaterial, (id. at 31, citation omitted); (2) the injury was not caused by the position of the top drive but the improperly tied off static line, (id.); (3) H&P violated its own policies by failing to use a dedicated flagger in violation of H&P's own HSE Manual, (id. at 31-32); (4) the safety lanyard connecting the safety harness to the static line was too long, (id. at 31, 33); and (5) the lanyard should have been self-retracting, (id. at 33).
B. Plaintiff
As mentioned earlier, Plaintiff agrees that he may recover from W&T as a principal only if he can prove that W&T retained operational control through direct supervision over the unsafe conduct, or by ordering or authorizing it, and/or by showing that W&T was independently negligent in causing his injuries. (Doc. 165-2 at 2-3.)
1. Operational Control - Supervision
Plaintiff maintains that "the hazards of the lifting operation were created and controlled - not by H&P - but by W&T" in
(1) raising the top drive to dangerous heights, (Doc. 165-2 at 2);
(2) parking the top drive "partly above and partly below" the monkey board, (id. at 2, 8-11, 14-18); and
(3) neglecting to require an auto-stop winch which would have automatically shut itself off when the lanyard got snagged, (id. at 2, 18-19).
While Plaintiff admits that "H&P had control over how to conduct its post-jarring top drive and derrick inspection[,]" he insists that he was injured during the lifting operation which "rested entirely in the hands of W&T." (Id. at 32; see also id. at 32-39.)
2. Operational Control - Ordering or Authorizing Negligent Conduct
Plaintiff argues, in addition, that W&T allowed the operation to proceed "in violation of its own policies and procedures as well as federal law[ ] [by] failing to (1) conduct a proper [JSA] for the hoisting operation, and (2) train its company man to sign the JSA . . . only after verifying that the risks involved were mitigated to the lowest extent practicable." (Id. at 3; see also id. at 19-23, 39-42.) By this conduct, it gave implied authorization for an unsafe work practice. (Id.)
3. Independent Negligence
Plaintiff contends that, in addition to being vicariously liable, W&T was independently negligent by " creat[ing] the very hazard that paralyzed Mr. Parkman." (Id. at 3.) Plaintiff disputes W&T's contention that, as principal, it owed no duty to Plaintiff. "By being the owner of the platform—under Louisiana law—W&T had a duty to H&P's employees to provide [a] reasonably safe premises for work. And, as federal courts have recognized, the duty of the platform-owner to ensure the safety of the premises is implicated when it creates the hazardous condition at issue." (Id. at 42-43, citations omitted.)
C. W&T's Reply
W&T responds that, "regardless of [W&T's] decision regarding the location of the top drive at the start of that lift . . . W&T retained no operational control over the step-by-step process of the personnel lift [and equipment inspection]." (Doc. 166 at 2.) In order for a platform owner to be liable for an injury that occurred during an independent contractor's operation, the platform owner must have "directed the independent contractor to do the very unsafe [operation] that causes the accident." (Id., citation omitted.)
Furthermore, "[t]o the extent W&T's [ ] decision to stop the top drive in the position it was in before the lift occurred, the H&P crew ratified that decision when Ronnie Atkinson, the H&P toolpusher, agreed to proceed with the lift." (Doc. 166 at 1-2.)
Plaintiff's contention that W&T gave an express or implied order to H&P to engage in an unsafe work practice is supported "[o]nly [by] plaintiff's self-serving testimony[,]" but even assuming his account is accepted that "W&T denied H&P's request to lower the top drive, H&P still proceeded with the inspection and had sole control over the personnel lift." (Id. at 4.) Under Fifth Circuit precedent, "the express or implied authorization exception still requires a showing that the principal authorized the 'particular manner' of the unsafe work." (Id. at 5, quoting Coleman, 19 F.4th at 731.) Brubaker's failure to sign the JSA is of no moment since "an operator's approval of a JSA does not ordinarily subject it to operational control liability." (Id., citing Coleman, 19 F.4th at 731.)
W&T reiterates its argument that it was not independently at fault since "a principal cannot create a hazard at issue when it does not control the operation of the particular activity during which the plaintiff was allegedly injured." (Id. at 6, citing Coleman, 19 F.4th at 734.) Here, H&P—not W&T—was in control. Even if the top drive's location was a hazard, "this would not rise to the level of operational control needed to hold W&T liable." Insofar as Plaintiff alleges some independent fault based on W&T's violation of Bureau of Safety and Environmental Enforcement ("BSEE") regulations, W&T refers the Court to its motion on the appropriate standard of care. (Id., citing Doc. 133.)
III. SUMMARY JUDGEMENT STANDARD
"The court shall grant summary judgment if 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). If the mover bears his burden of showing that there is no genuine issue of fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.' " See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citations omitted). The non-mover's burden is not satisfied by "conclusory allegations, by unsubstantiated assertions, or by only a 'scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.' " Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted). Further:
In resolving the motion, the court may not undertake to evaluate the credibility of the witnesses, weigh the evidence, or resolve factual disputes; so long as the evidence in the record is such that a reasonable jury drawing all inferences in favor of the nonmoving party could arrive at a verdict in that party's favor, the court must deny the motion.International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (citation omitted).
IV. STANDARD: PRINCIPAL'S LIABILITY FOR INJURY TO EMPLOYEE OF INDEPENDENT CONTRACTOR
Because this injury occurred on a fixed platform on the OCS, federal law applies exclusively. Coleman, 19 F.4th at 726 (citing Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 357, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969) (holding that "federal law is 'exclusive' in its regulation" of "artificial islands and fixed structures erected" out on the OCS (quoting OCSLA, ch. 345, sec. 4, 67 Stat. 462, 462 (1953) (codified as amended 43 U.S.C. § 1333)))). However, the tort law of the adjacent state applies as "surrogate federal law" when it is "not inconsistent with . . . other Federal laws." Id. at 726-27 (citing Rodrigue, 395 U.S. at 357, 89 S.Ct. 1835 (quoting OCSLA § 4)); Parkman v. W&T Offshore, Inc., 544 F. Supp. 3d 642, 648 (M.D. La. 2021) (citing, inter alia, Cormier v. Clemco Servs. Corp., 48 F.3d 179, 181 (5th Cir. 1995)).
The parties have pointed the Court to no inconsistent federal laws that control the issues in this case and agree that Louisiana substantive tort law applies as surrogate federal law. (Doc. 143-1 at 16; Doc. 165-2 at 31.) "A well-established general rule under Louisiana law is that a principal is not liable for the delictual or quasi-delictual offenses (torts) committed by an agent who is an independent contractor in the course of performing its contractual duties." Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 380 (5th Cir. 2001) (citations omitted).
There are, however, three recognized exceptions to this general rule. A principal may be liable for the negligent acts of its independent contractor (1) if the contractor was performing ultrahazardous activities, id. at 380 (not an issue here); (2) if the principal retains operational control over its contractor's negligent acts that caused the injuries, Coleman, 19 F.4th at 729-30; or (3) if the principal expressly or impliedly orders or authorizes its contractor's negligent acts, id. at 731. In addition, a principal can be liable for injuries resulting from its independent negligence. Id. at 734.
The implied or express authorization of an unsafe act is sometimes called the "unsafe-work-practices" exception. Coleman, 19 F.4th at 731. As the court in Coleman noted, Fifth Circuit "cases have sometimes referred to the unsafe-work-practices exception collectively with the operational control exception . . . [but] both are distinguishable exceptions to the independent-contractor rule under Louisiana law, complete with bespoke inquiries." Id. at 731 n.32. (citations omitted). Thus, they will be treated separately here.
"[W]hen a principal either 'retains' or 'exercises' operational control over the independent contractor's acts, then the principal remains vicariously liable." Id. at 729 (citation omitted). The principal's retention of operational control via its contract with the independent contractor "weighs heavier" than the principal's "actual exercise of control[.]" Id. at 729-30 (citations omitted).
Professors Maraist and Galligan sagely note that "It is sometimes said that if the principal retains control over the operation, then it is vicariously liable for the independent contractor's torts. Of course, this is tautological because, if the principal retains control, the worker probably is a servant and not an independent contractor, unless one may retain sufficient 'control' to have a duty in tort to exercise reasonable care but not sufficient 'control' to be vicariously liable. Of course, using one word to mean two different things always creates problems." Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law, § 13.02[3].
"However, 'the terms of a contract, while relevant, do not necessarily determine the outcome' of the operational control inquiry." Tajonera v. Black Elk Energy Offshore Operations, L.L.C., No. 13-0366, 2015 WL 6758258, at *14 (E.D. La. Nov. 5, 2015) (citing Morgan v. Hercules Drilling Co., LLC, No. 09-2091, 2011 WL 2793229, at *3 (W.D. La. July 13, 2011) (citing Dixon v. Danos and Curole Marine Contractors, Inc., No. 97-2611, 1998 WL 812393, at *2 (E.D. La. 1998) (J. Vance))). "[T]he Court must look beyond the contract to determine whether the principal's actions constitute operational control." Tajonera, 2015 WL 6758258, at *14 (citing Dixon, 1998 WL 812393, at *2 (citing Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 193 (5th Cir. 1991) (reviewing the actual control asserted by Shell employees over the independent contractor in addition to the contract itself))). "Operational control requires evidence of 'direct supervision' by the principal 'over the step-by-step process of accomplishing the work.' " Coleman, 19 F.4th at 730 (quoting Fruge, 337 F.3d at 561).
In order for the principal to be liable under the unsafe-work-practices exception, the principal must " 'expressly or impliedly authorize[ ] the particular manner' which rendered the work unsafe." Id. at 731 (quoting Echeverry v. Jazz Casino Co., 988 F.3d 221, 233 (5th Cir. 2021)) (in turn quoting Davis v. Dynamic Offshore Res., L.L.C., 865 F.3d 235, 236 (5th Cir. 2017)). "Observing but failing to object to an unsafe work practice does not create a fact dispute." Id. In defining the unsafe work practice at issue for purposes of applying this exception, a court must "start with the underlying action" and then "add some specifics of the occasion" in order to define it at the appropriate "level of generality." Echeverry, 988 F.3d at 233-34. This is "no easy task." Coleman, 19 F.4th at 731.
Regarding Plaintiff's allegation that W&T was independently negligent, a principal ordinarily owes its independent contractor "no duty . . . to provide a safe [place to work]." Id. at 732 (quoting Graham v. Amoco Oil Co., 21 F.3d 643, 647 (5th Cir. 1994)). "But the no-duty rule does not apply when the principal either affirmatively assumes that duty or creates a workplace hazard." Id. (citations omitted); see also Venezia v. ConocoPhillips Co., No. 12-2168, 2014 WL 107962, at *4 (E.D. La. Jan. 9, 2014) ("a principal remains liable for its own acts of negligence."); Cormier v. W & T Offshore, Inc., No. 10-1089, 2013 WL 1567406, at *16 (W.D. La. Apr. 12, 2013) ("Although the general rule concerning principals and independent contractors shields a principal from the acts of its independent contractor that do not fall within one of the two exceptions explained above, the principal, here W & T, remains liable for its own acts of negligence.") (citations omitted); Morgan v. Hercules Drilling Co., LLC, No. 09-2091, 2011 WL 2793229, at *6 (W.D. La. July 13, 2011) (denying principal's summary judgment motion because "there [were] genuine issues of material fact regarding whether [the principal's employee] created an unsafe working environment and whether that environment [was] causally related to plaintiff's alleged injuries.").
V. DISCUSSION
At issue in this Motion is whether Plaintiff has raised genuine issues of material fact regarding whether (1) W&T exercised operational control of H&P's work at the time of the accident; (2) W&T ordered or authorized an unsafe manner of work that caused Parkman's injuries; and (3) W&T was independently negligent in a way which proximately caused Parkman's injuries. Each of these will be taken in turn.
A. Operational Control
W&T first points the Court to language in the Drilling Contract and Bridging Agreement between W&T and H&P allegedly demonstrating that W&T did not contractually retain operational control over H&P's work. (Doc. 143-1 at 18-20.) According to W&T, Section 503 of the Drilling Contract did not authorize W&T's operational control in this case since it only governs situations in which there is disagreement between the operator and contractor and here there was no disagreement regarding not lowering the top drive in conjunction with the inspection. (Id. at 21-22.)
In addition, W&T urges it did not exercise operational control because it did not directly supervise the "step-by-step process of accomplishing the work such that the contractor [was] not entirely free to do the work in his own way." (Id. at 23, citations omitted; see also id. at 24.) The fact that the company man was at the JSA meeting, according to some, does not mean that W&T exercised control over the lifting procedure. (Id.)
Nowhere in Plaintiff's opposition does he argue W&T contractually retained operational control over the lifting being performed at the time of the accident, conceding this issue to W&T. Where a party fails to substantively oppose dismissal of a claim, the claim may be deemed waived. Jordan v. Gautreaux, No. 21-48, 2022 WL 897549, at *15 n.2 (M.D. La. Mar. 25, 2022) (deGravelles, J.) (citations omitted). Any claim of contractual retention of operational control is therefore waived, and summary judgment on this issue is granted.
Plaintiff insists however that "it is undisputed that the decisions on how high to pull [ ] the drillstring above the rig floor and where to park the top drive were made by W&T," (Doc. 165-2 at 9, record citations from n.42 omitted; see also Plaintiff's Counter Statement of Facts, Doc. 165-3 at 7, ¶ 6 n.40); see also id., Plaintiff's Response to W&T's Statement of Undisputed Facts, at 5, ¶ 36 nn.23-24)), and that "these W&T decisions directly contributed to the accident," (Doc. 165-2 at 9). Thus, as to this critical decision and others made as a part of the procedure to perform the inspection, W&T exercised operational control. (Doc. 165-2 at 31-39.)
Neither W&T nor AGR responded to Plaintiff's PCSF. Under this Court's local rules, this Court could deem the facts set forth in the PCSF admitted. M.D. La. Civ. R. 56(f) ("Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.") However, given that W&T has, in the body of its original and reply briefs contested many, if not all, of the facts set forth in Plaintiff's PCSF, the Court will exercise its discretion and not deem Plaintiff's PCSF admitted. McGhee v. Fay Servicing, LLC, No. 21-652, 2023 WL 2335376, at *2 (M.D. La. Mar. 2, 2023) (internal citations omitted).
In reply, W&T states that "regardless of its decision regarding the location of the top drive at the start of that lift[,] . . . W&T retained no operational control over the step-by-step process of the personnel lift that caused his injury[.]" (Doc. 166 at 2; see also id. at 4.) "The moment plaintiff put on his harness, the personnel lift began . . . [and] [a]t that point, H&P was in control." (Doc. 166 at 4.)
Here, the Court agrees with W&T. While it is uncontroverted that company man Brubaker did make a critical decision, contrary to the advice of some H&P personnel, to not lower the top drive, this decision was made based on W&T's separate "hole decision," i.e., a part of W&T's authority over the "condition of the well[,]" (Corporate Deposition of W&T, Doc. 165-5 at 52), and not as part of W&T's "direct supervision . . . over the step-by-step process of accomplishing [H&P's] work." Coleman, 19 F.4th at 731 (quoting Fruge, 337 F.3d at 561).
Accordingly, summary judgment on this issue is granted.
B. Unsafe Work Practices
W&T argues that Plaintiff is in error when he argues that the company man's "indication that the top drive could not be lowered constitutes an express or implied order/authorization" to do an unsafe act since "the two most senior members of the H&P night crew[, H&P's toolpusher and driller,] . . . agreed with the company man's explanation of why the top drive should not be lowered . . ." (Doc. 143-1 at 24-25.) Furthermore, even if the company man did order the lift to be made with the top drive above the monkey board, this does not qualify for the unsafe-work-practices exception since one must look at the specific instrumentality that caused the injury and not the work's overall purpose. (Id. at 26, citing Coleman, 19 F.4th at 731, 732.) Here, the injury-producing instrumentality was the static line and monkey board with which W&T had no involvement. (Id.)
Plaintiff counters that W&T allowed the operation to proceed "in violation of its own policies and procedures as well as federal law[ ] [by] failing to (1) conduct a proper [JSA] for the hoisting operation, and (2) train its company man to sign the JSA . . . only after verifying that the risks involved were mitigated to the lowest extent practicable." (Id. at 3; see also id. at 19-23, 39-42.) By this conduct, it gave implied authorization for an unsafe work practice. (Id.)
The Fifth Circuit has repeatedly addressed the test for the application of the unsafe-work-practices exception.
Where an available safe method, which includes the taking of adequate precautions, will render it at least ordinarily safe, and the work is done in an unsafe manner, the employer will be liable if he has expressly or impliedly authorized the particular manner which will render the work unsafe, and not otherwise.Bartholomew v. CNG Producing Co., 832 F.2d 326, 329 (5th Cir. 1987) (quoting Ewell v. Petro Processors of Louisiana, Inc., 364 So. 2d 604, 606-07 (La. App. 1978) (in turn quoting Perkowski, The Employer and the Torts of His Independent Contractor in Louisiana, 21 Tul. L. Rev. 619, 627 (1947))).
However, in order for the principal to be liable under the unsafe-work-practices exception, the principal must " 'expressly or impliedly authorize[ ] the particular manner' which rendered the work unsafe." Coleman, 19 F.4th at 731 (quoting Echeverry, 988 F.3d at 233 (in turn quoting Davis, 865 F.3d at 236)). "Observing but failing to object to an unsafe work practice does not create a fact dispute." Id.
In defining the unsafe work practice at issue for purposes of applying this exception, a court must "start with the underlying action" and then "add some specifics of the occasion" in order to define it at the appropriate "level of generality." Echeverry, 988 F.3d at 233-34.
Recently, Judge Barbier of the Eastern District of Louisiana elaborated on this exception.
The Fifth Circuit has held that a principal is liable for the acts of an independent contractor if it "expressly or impliedly authorizes an unsafe practice." Bartholomew v. CNG Producing Co., 832 F.2d 326, 329 (5th Cir. 1987). The statement that a principal can be found liable for "impliedly authorizing" an unsafe work practice appears not infrequently in Louisiana case law. See, e.g., Williams v. Gervais F. Favrot Co., 499 So. 2d 623, 625 (La. App. 4th Cir. 1986), writ denied, 503 So. 2d 19 (La. 1987). However, in practice Courts have tended to find that a failure by a principal to intercede in the unsafe work practices of an independent contractor does not render the principal liable. For example, in Graham v. Amoco Oil Co., the Fifth Circuit found that the terms of a contract placed the burden to implement safe procedures on the independent contractor. 21 F.3d 643, 648 (5th Cir. 1994)[.] Accordingly, the Court of Appeals found that the independent contractor was not required to take corrective actions merely because the principal's representative observed unsafe work practices on the part of the independent contractor. Id.; see also Kent v. Gulf States Utilities Co., 418 So. 2d 493, 500 (La. 1982) (finding that even though principal's representative could have prevented the accident, he had no duty to do so), Coulter v. Texaco, Inc., 117 F.3d 909, 912 (5th Cir. 1997) (declining to find that principal was liable for a crane collapse merely because principal had authorized a crane be repositioned because the independent contractor was not prevented from making adjustments after it was clear that the crane had been destabilized).Sashington v. Georgia-Pac. LLC, No. 17-557, 2018 WL 4489294, at *8 (E.D. La. Sept. 19, 2018); see also Morgan v. Hercules Drilling Co., LLC, 2011 WL 2793229, at *6 (where the "Court conclude[d] there are disputed questions of fact regarding whether [the principal's employee] expressly or impliedly authorized an unsafe practice or created an unsafe workplace which caused or contributed to the plaintiff's injuries.").
Generally, courts only find that a principal has assumed a duty if the principal explicitly orders or endorses an unsafe work practice. That was the circumstance in the case cited by Plaintiff, Bartholomew v. CNG Producing Co., 832 F.2d 326, 329. In Bartholomew there was uncontroverted testimony that the principal had ordered its independent contractor not to clean up the muddy floor in order to save time. Id. at 327-29. When the employee of the independent contractor slipped on the muddy floor, the principal was found to be liable. Id.
Here, the Court finds that there are significant issues of material fact as to whether W&T, through its company man Brubaker, ordered that the top drive remain partly above the monkey board in the face of some H&P personnel's advice, suggestion, prior practice, and statement that lowering it was a "safer alternative," and therefore created an unsafe workplace. Like Bartholomew and unlike Graham, Brubaker didn't merely observe an unsafe condition and remain silent over the concerns expressed by some H&P personnel. Unlike Coulter, H&P was not free to move the position of the top drive once Brubaker ordered that it not be moved. According to record evidence, Brubaker ordered that a potentially unsafe condition remain, even when an allegedly safer alternative was suggested.
W&T argues this does not qualify for the unsafe-work-practices exception since one must look at the specific instrumentality that caused the injury (the tied-off static line) and not the work's overall purpose. (Doc. 143-1 at 26, citing Coleman, 19 F.4th at 732.) W&T misreads Coleman and Echeverry (upon which Coleman relied). Indeed, Coleman and Echeverry say the opposite: in finding the right level of generality, the Court must " 'start[ ] with the underlying action' and then 'add[ ] some specifics of the occasion.' " Coleman, 19 F.4th at 731 (quoting Echeverry, 988 F.3d at 234 (emphasis added)). In both cases, the Fifth Circuit looked at the instrumentalities involved but "focused on what specifically made the underlying action unsafe[.]" Id. at 732.
In Echeverry, "what specifically made the underlying action unsafe" was "using a manlift 'against vehicular traffic'; 'at a busy intersection'; and while 'there was substantial pedestrian traffic.' " Coleman, 19 F.4th at 732 (quoting Echeverry, 988 F.3d at 234). In Coleman, the Court said, "Here[,] what specifically made using a scaffolding board unsafe was using it on an offshore platform while winds were gusting. Therefore, we agree with BP's unsafe-work-practice articulation: carrying scaffolding boards on an offshore platform in gusting winds." Id. at 732.
In this case, while making the lift with the static line tied off was unsafe, there is record evidence that it was made more unsafe by locating the top drive partly above the monkey board and thereby narrowing the space required for Plaintiff to pass. Thus, for purposes of the unsafe-work-practices exception, the Court articulates the incident with the appropriate "level of generality" as hoisting a worker into the derrick to inspect the top drive with the static line tied off and the space through which the worker was lifted made narrower and more hazardous by virtue of the placement of the top drive above the monkey board.
While the evidence shows that the hoisting operation itself was performed by H&P, part of the operation obviously included the route through which Plaintiff would need to travel in order to accomplish his mission. The location of the top drive which needed to be inspected was controlled and decided by W&T, over the voiced concerns of at least some H&P personnel and, to that extent, W&T " 'expressly or impliedly authorized the particular manner' [in which the work was performed] which rendered the work unsafe." Coleman, 19 F.4th at 731 (quoting Echeverry, 988 F.3d at 233 (in turn quoting Davis, 865 F.3d at 236)).
W&T complains that this fact issue is created by Parkman's "self-serving testimony[ ] which is contrary to that of every other eyewitness." (Doc. 166 at 4.) First, this statement is not correct in that Driller Tommy Bridges testified that (1) company man Scotty Brubaker was at the pre-job safety meeting, (Doc. 165-15 at 91-92; Doc. 143-12 at 111); (2) at that meeting, H&P Assistant Driller Daniel Martin told Brubaker that making the lift with the top drive above the monkey board "ain't the way we normally do [it] . . . [w]e usually bring it down lower than the monkey board[,]" (Doc. 165-15 at 92; see also id. at 92-93, 97); (3) Bridges himself "asked [Brubaker] about it[,]" (Doc. 143-12 at 111); (4) "the decision to stop the top drive at this height was made by W&T[,]" (Doc. 165-15 at 61; see also id. at 93-94); (5) making the lift with the top drive above the monkey board was "less than ideal[,]" (id. at 94), and both Parkman and Martin told him there were "safer alternatives[,]" (id. at 92); and (6) despite these "voice[d] concern[s,]" (id. at 97), the top drive wasn't lowered because of "well conditions[,]" (id. at 95). And while Brubaker testified that he was not at the pre-job safety meeting, he admitted that it was his decision to not lower the top drive and that he communicated that decision to H&P's toolpusher either by phone or in person. (Doc. 165-11 at 96-97, 99.)
Furthermore, W&T's company representative testified that this was W&T's decision alone. (Corporate Deposition of W&T, Doc. 165-5 at 52.) The fact that the two H&P toolpushers agreed with Brubaker and/or acquiesced in his decision is of no moment for purposes of this Motion and does not gainsay the fact that W&T made the decision and only they had the authority to make it, at least according to the W&T corporate representative. (Id.)
Second, the fact that Plaintiff's testimony may be self-serving does not preclude its consideration. As this Court wrote in an earlier ruling in this case:
A party's own testimony is often "self-serving," but [a court] do[es] not exclude it as incompetent for that reason alone." Instead, testimony based on personal knowledge and containing factual assertions suffices to create a fact issue, even if it is self-serving. In fact, "characterizing a party's testimony as 'self-serving' is not useful to the court. In a lawsuit, where each party is attempting to advance his own cause and protect his own interests, we are scarcely shocked when a party produces evidence or gives testimony that is 'self-serving.'
Parkman v. W&T Offshore, Inc., 544 F. Supp. 3d 642, 650 (M.D. La. 2021).
Hardy v. Wood Grp. PSN, Inc., No. 13-775, 2014 WL 1664236, at *3 (W.D. La. Apr. 25, 2014) (quoting Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)).
As the Fifth Circuit has noted, "[i]f all 'self-serving' testimony were excluded from trials, they would be short indeed." C.R. Pittman Constr. Co., Inc. v. Nat'l Fire Ins. Co. of Hartford, 453 F. App'x 439, 443 (5th Cir. 2011).
Finally, for purposes of the present Motion, the discrepancies in testimony pointed to by W&T (and others) raise just the kind of fact questions that juries are empowered to resolve and are a basis for denying a motion for summary judgment. Summary judgment on this issue is therefore denied.
C. Independent Fault
W&T argues that the unsafe condition was the static line tied off to the monkey board handrail, which was created by H&P, not W&T. (Doc. 143-1 at 28.) Likewise, the decision to make the personnel lift was H&P's. (Id.) Furthermore, H&P's decision to make the lift in this way was a violation of H&P's Hoist JSA which supports their Motion. (Id. at 28-30, citations omitted.)
W&T disputes Plaintiff's argument that W&T created the hazard by refusing to allow the H&P crew to lower the top drive below the monkey board or rushed the H&P crew in its work, by pointing to the following: (1) it did not rush the H&P crew but, in any event, that is immaterial, (id. at 31, citation omitted); (2) the injury was not caused by the position of the top drive but the improperly tied off static line, (id.); (3) H&P violated its own policies by failing to use a dedicated flagger in violation of H&P's own HSE Manual, (id. at 31-32); (4) the safety lanyard connecting the safety harness to the static line was too long, (id. at 31, 33); and (5) the lanyard should have been self-retracting, (id. at 33).
Plaintiff counters that, in addition to being vicariously liable, W&T was independently negligent by " creat[ing] the very hazard that paralyzed Mr. Parkman," i.e. the top drive's location partly above and partly above the monkey board. (Doc. 165-2 at 3; see also id. at 43, describing W&T's negligence as "creat[ing] an extremely dangerous environment for conducting the hoisting operation.").
While, as argued by W&T, there is a wealth of record evidence showing that the tied-off static line was an unsafe condition, there is also record evidence that the location of the top drive was an unsafe condition and the presence of the first does not eliminate the existence and significance of the second. A reasonable jury could conclude that both were acts of negligence and both caused or contributed to the accident. The same is true of the other items of fault that W&T urges are attributable to H&P. Measuring the respective fault of potential tortfeasors is a job for the jury, not the Court on a motion for summary judgment. Therefore, summary judgment on this issue is denied.
VI. CONCLUSION
For the foregoing reasons, W&T's Motion for Summary Judgment (Doc. 143) is GRANTED as to Plaintiff's claims against W&T based on W&T's alleged contractual retention and/or other exercise of operational control of the step-by-step process of accomplishing H&P's work. In all other respects, the Motion for Summary Judgment is DENIED.