Opinion
CIVIL ACTION NO. 20-883-JWD-EWD
2023-06-02
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 BY AGR/FJ BROWN JOHN W. deGRAVELLES, UNITED STATES DISTRICT JUDGE
Before the Court is the Motion for Summary Judgment (Doc. 131) ("Motion") brought by AGR/FJ Brown ("AGR"). It is opposed by co-defendant W&T Offshore, Inc. ("W&T") (Doc. 160) and plaintiff Jason Parkman ("Plaintiff" or "Parkman") (Doc. 163). AGR filed a reply. (Doc. 168.) 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. BACKGROUND FACTS OF ACCIDENT
These background facts are taken largely from W&T's Statement of Uncontested Facts (Doc. 143-33) in support of W&T Offshore, Inc.'s Motion for Summary Judgment (Doc. 143) and Plaintiff's response thereto (Doc. 165-3). AGR joined in and adopted W&T's Motion for Summary Judgment (Doc. 151) and therefore the facts set out in W&T's Statement of Uncontested Facts are deemed admitted by AGR. Unless the Court notes otherwise, the facts referenced herein from W&T's Statement of Uncontested Facts are admitted by Plaintiff in his Response to W&T's Statement of Undisputed Facts and Counter-Statement of Facts (Doc. 165-3).
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, 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") which 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 H&P 107 drilling rig and associated equipment along with H&P personnel were placed on SS 349-A platform and began drilling. (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 its drilling equipment." (Id. at 2, ¶ 6, citing the Drilling Contract, Doc. 143-6 at §§ 101(c), 106, 301-302, 401, 403, 501-502.)
In addition, "W&T retained 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 [a] Master Service Contract ["MSA"] between W&T and AGR, dated June 10, 2013." (Doc. 143-1 at 6, citing Docs. 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 Mark Scott ("Scott") Brubaker (who was working the night shift). (Doc. 143-1 at 6; Plaintiff's Counter Statement of Facts ("PCSF"), Doc. 165-3 at 6, ¶ 1.)
At the time of the accident, Plaintiff Parkman was employed by H&P as a Floorhand/Roughneck on the H&P 107 rig. (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 operations 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.)
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 hang free during the hoisting operation was, in error, not untied. (Id. at 6, ¶¶ 25 - 30.) 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. (Depo. 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.) As indicated by the preceding citation, the deposition page numbers cited herein are the internal deposition page numbers and not the record document page numbers. Additionally, the Court notes that the previously cited deposition, Doc. 165-8, is labeled as the deposition of "Kleim 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, there is basic agreement as to how the accident occurred. (See, e.g., W&T's Statement of Uncontested Facts (Doc. 143-33) and Plaintiff's response (Doc. 165-3), ¶¶ 17, 21, 28, 29, 34, 36, 38 and 41.)
II. BACKGROUND FACTS OF BORROWED SERVANT ISSUE
The issues in this case include whether Scott Brubaker was negligent in causing Parkman's injuries and whether W&T and/or AGR are vicariously liable for such negligence. In this Motion, AGR asks the Court to find as a matter of law that "Brubaker was a borrowed employee of [W&T,] and [AGR] did not have any employee involved in the subject incident and has no vicarious or any other liability for the subject incident." (Doc. 131 at 1.)
Many of the facts underlying the present Motion are undisputed and thus admitted by W&T and Plaintiff, including the following facts in AGR's Statement of Uncontested Material Facts ("AGR's SUMF") (Doc. 131-1). "W&T and AGR entered into a contract in connection with the provision of Mr. Brubaker's services to W&T." (AGR's SUMF, Doc. 131-1 at 1, ¶ 3.) Brubaker was "assigned . . . to act as W&T's 'company man.' " (Id. at 1, ¶ 4.) Brubaker's work assignments, work hours, shift, and days worked were all "dictated by W&T." (Id. at 1-2, ¶¶ 5-7.) Brubaker would "submit a daily time ticket to W&T" which would "approve the number of hours worked" by him and, "[u]pon approval by W&T . . . he would be paid by AGR by funds from W&T." (Id. at 2, ¶¶ 11-13.) Brubaker "worked as a consultant . . . for W&T for over two years." (Id. at 2, ¶ 15.)
Compare AGR's SUMF (Doc. 131-1) with W&T's Responses to AGR's Statement of Uncontested Facts (Doc. 160-1 at 1-2) ("W&T's RSUMF") and Plaintiff's Response to AGR's Statement of Uncontested Facts (Doc. 163-1 at 1-2) ("Plaintiff's RSUMF").
However, the parties dispute whether Brubaker's relationship with AGR and W&T was such that, as a matter of law, Brubaker was a borrowed employee of W&T and/or a dual employee of both AGR and W&T.
III. SUMMARY OF THE ARGUMENTS OF THE PARTIES
A. AGR
Directing the Court to the nine factors utilized by the Fifth Circuit in determining whether a borrowed employee relationship exists, Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir. 1969) and Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1244 (5th Cir. 1988), AGR argues that "[t]he undisputed facts predominate on every factor in favor of finding that Scott Brubaker was the borrowed employee of W&T, and overwhelmingly so on the most important factors." (Doc. 131-2 at 5-7.) Although AGR does not directly address the issue of Brubaker's alleged "dual employment" in its opening brief, it argues that because he is a borrowed employee, "he becomes the employee of the borrowing employer and 'is to be dealt with as the servant of the borrowing employer and not of the nominal employer.' " (Id. at 4, quoting Perron v. Bell Maint. & Fabricators, Inc., 970 F.2d 1409, 1412 (5th Cir. 1992), and citing, inter alia, Denton v. Yazoo M.V.R. Co., 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310 (1932).)
Ruiz was a maritime personal injury case where the plaintiff suffered injury on a barge in navigable waters. Ruiz, 413 F.2d at 311-12. At issue was his status as a borrowed employee and whether he was therefore relegated to worker's compensation benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq., ("LHWCA"). Ruiz, 413 F.2d at 312. Melancon was a personal injury case arising on a fixed platform on the OCS, 834 F.2d at 1241, where the borrowed servant issue was also critical to determining whether the plaintiff had a viable tort claim or was relegated to LHWCA benefits, id. at 1243-44. In both cases, the same nine factors were utilized.
AGR turns first to "the most important factor . . . , who supervised and controlled the employee." (Id. at 7, citations omitted.) In this regard, AGR argues that, "[u]nequivocally, Mr. Brubaker reported directly to and was supervised by W&T personnel." (Id., record citations omitted; see also id. at 7-9.)
Next, according to AGR, since W&T was the owner of the fixed platform from which the drilling operation was being performed, there is no dispute as to the second Ruiz factor because "it was W&T's work that was being done." (Id. at 9; see also id. at 9-10.) As to the third factor, AGR addresses Art. 3.1 of the MSA (Doc. 131-7), which provides that AGR and its consultants are independent contractors and AGR maintains no control over contractors like Brubaker. (Doc. 131-2 at 10.) AGR argues that the clause "is intended only to preserve W&T's 'statutory employer' defense" and the deposition of AGR President Scott Thetford "unequivocally establishes that AGR did not direct or control Mr. Brubaker's day-to-day activities aboard the W&T platform." (Id. at 10-11, record citations omitted.)
The fourth factor asks whether Brubaker "acquiesce[d] in his work status" with W&T. (Id. at 11.) Given Brubaker's more than two years aboard the W&T platform, Brubaker far exceeded the one month allowed by the Fifth Circuit for a worker "to appreciate" and acquiesce in his "new work conditions." (Id. at 11, citing Brown v. Union Oil Co. of Cal., 984 F.2d 674, 678 (5th Cir. 1993).) Regarding the fifth factor, whether AGR terminated its relationship with Brubaker, this factor is met as long as AGR placed "no restrictions with respect to [his] employment conditions." (Id. at 11-12.) This factor is easily met since AGR had no knowledge of Brubaker's daily work performance and responsibilities which were dictated by W&T, and Brubaker's only contact with AGR was to deliver his time sheets and pick up his check. (Id. at 12.)
Regarding the sixth factor, who furnished Brubaker's tools and place for the performance of work, this factor weighs heavily in AGR's favor since the work was performed exclusively on W&T's platform and Brubaker used his personal computer, the only "tool" he used in connection with his work. (Id. at 13.) The seventh factor is likewise easily met, argues AGR, since Brubaker's two years plus working on the W&T platform is more than sufficient to meet the "considerable time" required by this part of the test. (Id. at 13-14, record and case citations omitted.)
AGR concedes that W&T did not have the right to discharge Brubaker from his employment, but it did have the right to remove him from W&T platforms. (Id. at 14-15.) This, according to AGR, satisfies this prong of the test. (Id.) As to the last factor, who had the obligation to pay Brubaker, "it is sufficient that the borrowing employer reimburse the loaning employer for wages paid to the employee." (Id. at 15, citations omitted.) This was precisely the situation with W&T, Brubaker, and AGR. (Id. at 16-17.)
In conclusion, AGR maintains that the Fifth Circuit is clear that "borrowed employee status is a question of law that may be decided by motion in the face of undisputed facts." (Id. at 17.) Where, as here, "an employee, such as Mr. Brubaker has no connection to his nominal employer other than a paycheck, he will be considered a borrowed employee." (Id.). Thus, AGR maintains summary judgment should be granted. (Id. at 18.)
B. W&T
In short, W&T argues that there are "several genuine issues of material fact . . . as to whether former AGR employee Scott Brubaker . . . was . . . a borrowed employee of W&T at the time of the subject incident." (Doc. 160 at 1.) In any event, however, AGR was a dual employer of Brubaker under Louisiana law and therefore, "regardless of whether Brubaker qualifies as a borrowed employee, AGR's Motion for Summary Judgment should be denied." (Id.)
W&T concedes that some of the Ruiz factors weigh in favor of Brubaker's borrowed employee status. (Compare, e.g., AGR's SUMF (Doc. 131-1), with W&T's RSUMF (Doc. 160-1, ¶¶ 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, and 17).) However, W&T argues that there are issues of material fact as to the first and third factors which mandate that the Court deny AGR's Motion. (Doc. 160 at 5-7.)
As to the third factor (was there an agreement, understanding, or meeting of the minds between the original and borrowing employer?), W&T points the Court to the W&T/AGR MSA that "clearly states that AGR and its consultants were independent contractors of W&T . . . [and] AGR would control the methods and details of its performance." (Id. at 5, quoting MSA, Doc. 160-3 at 1-2, §§ 2, 3.1.) And while this alone is "not enough to extinguish a potential borrowed employee relationship, it is sufficient to raise a genuine issue of material fact to preclude a summary judgment ruling on the issue when coupled with conflicting witness testimony and/or conduct of the parties." (Doc. 160 at 5-6, citing Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 378 (5th Cir. 1985).)
Regarding the first factor (who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation), W&T concedes that "it did exercise some level of control over Brubaker . . . [as is] inherent in the operator/company man relationship." (Id. at 6.) "However, the terms of the MSA make clear that W&T was concerned only with the results of Brubaker's work, and that it did not control the method and details of AGR employees' performance." (Id.) Furthermore, "AGR maintained the right to exercise control over Brubaker." (Id.)
W&T argues in the alternative that even if Brubaker is found to be W&T's borrowed employee, under Louisiana law (applicable in this case through the Outer Continental Shelf Lands Act ("OCSLA")), "a general/lending employer that is in the business of lending employees to its customers is liable for the alleged negligence of the employees it 'borrows' [sic] to other companies." (Id. at 7, citing Morgan v. ABC Mfr., 710 So. 2d 1077 (La. 1998) and the "dual employer tort doctrine" that Morgan endorsed (710 So. 2d at 1081-82).) Here, says W&T, the AGR corporate deposition makes clear that "AGR's business was to hire out company men and other offshore personnel to work as directed by its customers." (Id. at 8, quoting Corp. Depo. of AGR, Doc. 160-2 at 43-44 and citing Corp. Depo. of AGR, Doc. 160-2 at 11-13, 15-17.) W&T also points the Court to Energy XXI, GoM, LLC v. New Tech Eng'g, L.P., 787 F. Supp. 2d 590, 625 (S.D. Tex. 2011), which involves "the precise situation" we have here, and which found that there was an issue of material fact as to whether the lending and borrowing employers were dual employers. (Doc. 160 at 9; see also id. at 9-11.)
43 U.S.C. § 1331 et seq.
C. Plaintiff
Plaintiff argues, like AGR, that there are "compelling grounds to deem [AGR's] employee, Mr. Scott Brubaker, [ ] a borrowed servant of W&T . . ." but even if he isn't, summary judgment must be denied because Louisiana's " 'dual employer' doctrine renders both a general employer (AGR) and a borrow[ing] employer (W&T) solidarily liable for the employee's torts committed upon third parties." (Doc. 163 at 1-2, citing Morgan v. ABC Mfr., 710 So. 2d 1077 (La. 1998); see also Doc. 163 at 11.)
Because this is an OCSLA case, Louisiana state law applies as surrogate federal law unless there is an inconsistent federal law. (Id. at 3.) Here, there is no inconsistent federal law since "neither the LHWCA nor federal law generally have anything to say on a borrowed-servant theory for claims against third-party tortfeasors (i.e., non-LHWCA employers) like AGR and W&T." (Id.) And Louisiana law is clear that "both a general employer (like AGR) and a borrowed/special employer (like W&T) [are] solidarily liable for the employee's torts committed on third parties." (Id.)
Plaintiff contends that while Plaintiff's third-party tort action is allowed by virtue of 33 U.S.C. § 933(a), "the U.S. Fifth Circuit made clear . . . [that] this provision of the LHWCA necessarily relies upon external state-law for these claims . . . ." (Id. at 5-6, citing Fontenot v. Dual Drilling Co., 179 F.3d 969, 976 (5th Cir. 1999).) According to Plaintiff, W&T's authority for its assertion that the nominal employee has no liability when its employee is borrowed by another is inapposite in that "neither of these [cases] are Louisiana cases and neither rests on Louisiana law." (Id. at 7.) Rather, it is the Louisiana Supreme Court case of Morgan that is dispositive, and Morgan holds that both the general and borrowing employer remain liable in tort under circumstances such as those here. (Id. at 8-11, citing Morgan, 710 So. 2d at 1077.)
D. AGR's Reply
AGR reiterates its view that there is no issue of material fact regarding Brubaker's status as a borrowed employee of W&T. AGR notes that "W&T denied only two of AGR's seventeen Statements of Uncontested Material Facts" (specifically, numbers 5 and 10) and, as to these, "one is only a 'technical' denial and the other is made in error." (Doc. 168 at 2-3). Number 5's denial based on Brubaker working and living on the H&P 107 drilling rig rather than the platform to which it was affixed is, "for purposes of the borrowed employee [ ] issue, a distinction without a difference." (Id. at 3.) Further, although W&T denied number 10 based on an alleged "uncertainty" of whether Brubaker's laptop was his personally and not provided by AGR, this "uncertainty" was clearly in error as confirmed by Brubaker and not controverted by AGR's former president. (Id.)
AGR returns to its arguments regarding the other seven factors, insisting that the record is uncontroverted as to Brubaker's status as a borrowed employee. (Id. at 4-8, record citations omitted.) AGR disputes W&T's argument that the language of the MSA declaring that Brubaker is not an employee of W&T and over whom W&T has no control as to the "manner and method of [his] performance," raises an issue of fact. (Id. at 5-11.) According to AGR, the Fifth Circuit has made clear that "terms of the agreement alone are not dispositive" and can be overcome for summary judgment purposes by other factors. (Id. at 8-9; see also id. at 8-11, citations omitted.)
On the issue of the applicability of Louisiana's dual employment rule, AGR emphasizes that the OCSLA applies state law as surrogate federal law only "to the extent state law is not inconsistent with Federal Law." (Id. at 12, citing Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969).) Here, there is inconsistent federal law in the form of federal common law as reflected in the Supreme Court's decisions in Denton v. Yazoo M.V.R. Co., 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310 (1932) and Sun Oil Co. v. Dalzell Towing Co., Inc., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932) as well as the more recent district court case of Mendoza v. United States, No. 15-1528, 2017 WL 1198924, at *6 (S.D. Cal. Mar. 31, 2017). (Id. at 13-16.)
AGR argues that W&T's reliance on and reading of Energy XXI, 787 F. Supp. 2d 590 is in error. According to AGR, the Court ruled that "the consultant in Energy XXI was, in fact, a borrowed employee, just as AGR contends here." (Id. at 13.) Furthermore, contrary to what W&T represented, the court in Energy XXI found that "the 'General Maritime Law' would apply and, for that reason, the Louisiana law of 'dual employer' was inapplicable." (Id.)
IV. SUMMARY JUDGMENT 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. 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).
V. ANALYSIS
The parties agree that Parkman's accident occurred on the SS 349-A platform which is "[a] platform fixed upon the Outer Continental Shelf in Ship Shoal block 349 of the Gulf of Mexico, off the coast of Louisiana." (Doc. 143-33 at 1, ¶¶ 1-2; PCSF, Doc. 165-3 at 1, ¶¶ 1-2; Doc. 151 at 1.) As this Court held in an earlier ruling in this case:
[T]his case is governed by the OCSLA which dictates that LHWCA is the workers' compensation remedy accorded to Plaintiff against his employer. 43 U.S.C. § 1333(b); Ross [v. W&T Offshore, Inc., No. 17-8689], 2019 WL 186670, at *1 [(E.D. La. Jan. 14, 2019)] ("Section 1333(b) of the OCSLA makes workers' compensation coverage under the LHWCA an injured employee's exclusive remedy against an employer for injuries occurring on a fixed platform on the Outer Continental Shelf."). The tort law is that of the adjoining state (in this case, Louisiana) unless there is an inconsistent federal law. 43 U.S.C.
§ 1333(a)(2)(A); Bloodsaw v. Helmerich & Payne, Inc., 177 F.3d 978, No. 98-30536, 1999 WL 197115, at *1 (5th Cir. 1999) ("Bloodsaw's injury occurred on the Outer Continental Shelf off the coast of Louisiana, and under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq., his claim against Vastar is governed by Louisiana's tort law.") (citing Cormier v. Clemco Servs. Corp., 48 F.3d 179, 181 (5th Cir. 1995)).Parkman v. W&T Offshore, Inc., 544 F. Supp. 3d 642, 648 (M.D. La. 2021); see also Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 560 (5th Cir. 2003).
There are two main issues in this Motion. First, are there are genuine issues of material fact regarding Brubaker's alleged status as a borrowed employee of W&T such that summary judgment must be denied? Second, whether or not Brubaker is a borrowed employee of W&T, is AGR still vicariously liable for any torts committed by Brubaker by virtue of Louisiana's "two-master rule" or "dual employer" doctrine?
1 Frank L. Maraist, Thomas C. Galligan, Jr., John M. Church, & William R. Corbett, Louisiana Tort Law § 13.02 (2d ed. 2022).
Washington v. Fieldwood Energy LLC, No. 15-6615, 2018 WL 263230, at *4 (E.D. La. Jan. 2, 2018).
In this case, AGR and W&T point the Court to the factors set out in Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969) as the appropriate test to apply in deciding the borrowed servant question. (Doc. 131-2 at 5; Doc. 160 at 4.) AGR urges that the factors mandate a finding that Brubaker was a borrowed employee of W&T and hence AGR can have no vicarious liability. (Doc. 131-2 at 7-17.) W&T disagrees. (Doc. 160 at 4-7.)
Plaintiff argues that, under controlling Louisiana law, it is irrelevant whether Brubaker was a borrowed employee under Ruiz or any other test since both the lending and borrowing employee are vicariously liable for the borrowed employee's torts to third persons. (Doc. 163 at 8-11, citing Morgan v. ABC Mfr., 710 So. 2d 1077, 1082 (La. 1998).) W&T agrees with Plaintiff in this regard. (Doc. 160 at 7-11.) AGR does not. (Doc. 168 at 12-16.)
If Plaintiff and W&T are right that Louisiana's dual employer rule applies, AGR would be vicariously liable for Brubaker's torts regardless of his status as a borrowed employee of W&T. Should that be the finding of this Court, the Court would necessarily be required to deny that part of AGR's Motion asking it to declare that AGR "did not have any employee involved in the subject incident and has no vicarious liability or any other liability for the subject incident." (Doc. 131 at 1.) Accordingly, the Court will take up the dual employer issue first.
A. Does Louisiana's Dual Employer Rule Apply to this Case?
All parties agree that the OCSLA provides the applicable law in this case and that, under the OCSLA, Louisiana tort law governs unless there is an inconsistent federal law. (Doc. 168 at 12; Doc. 160 at 1; Doc. 163 at 3.) All parties agree that Louisiana's dual employer doctrine states that a payroll employer, even though he may have relinquished complete control of the employee to the borrowing employer, may nonetheless be solidarily liable for any tortious conduct attributed to the employee. (Doc. 168 at 12, citing Morgan, 710 So. 2d 1077; Doc. 160 at 1; Doc. 163 at 3.)
The issue about which some of the parties disagree is whether the dual employer doctrine applies in this case. The answer to that question depends on whether there is a "federal law" which is "inconsistent" with the Louisiana rule. To put it in the terms used by AGR, the question is whether "there exists a distinct body of Federal law contrary to the Louisiana 'dual employer' doctrine" which relieves the lending employer of liability when it is established that there is a borrowing employer. (Doc. 168 at 15.) AGR argues that there is. (Id. at 12-17.) Plaintiff and W&T disagree. (Doc. 160 at 7-11; Doc. 163 at 4-11.)
In its reply brief, AGR contends that the inconsistent federal law governing the borrowed servant issue in this case is the borrowed servant doctrine as recognized and articulated in Denton v. Yazoo M.V.R. Co., 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310 (1932). (Doc. 168 at 13-15.) There, a United States postal clerk was allegedly injured by the negligence of a railroad employee who was, at the time of the injury, under the direction of postal employees and not the railroad company. (Id. at 13, citing Denton, 284 U.S. at 307, 52 S.Ct. 141.) The Supreme Court found that the negligent railroad worker had become the borrowed employee of the United States postal service and therefore the railroad was not vicariously liable for its employee's negligence.
When one person puts his servant at the disposal and under the control of another for the performance of a particular service for the latter, the servant, in respect [of his acts in that service, is] to be dealt with as the servant of the latter and not of the former.(Id. at 14, quoting Denton, 284 U.S. at 308, 52 S.Ct. 141 (emphasis added).) That is, according to AGR, when the worker becomes the borrowed employee of another, the lending employee's liability ends. On this issue, AGR also cites Perron v. Bell Maintenance & Fabricators, Inc., 970 F.2d 1409, 1412 (5th Cir. 1992). (Doc. 131-2 at 4 n.2.)
Thus, argues AGR, the Court here must apply this controlling federal rule—which is inconsistent with Louisiana's dual employer doctrine—and hold that W&T was a borrowing employer as a matter of law, thus relieving AGR of any liability for the accident. (Doc. 168 at 15.)
In response, W&T points the Court to two more recent district court cases applying Louisiana's Morgan dual employer rule in an OCSLA case: Washington v. Fieldwood Energy LLC, No. 15-6615, 2018 WL 263230, at *4 (E.D. La. Jan. 2, 2018) and Energy XXI, GoM, LLC v. New Tech Eng'g, L.P., 787 F. Supp. 2d 590, 625 (S.D. Tex. 2011). (Doc. 160 at 2-3, 7-11.)
In his opposition, Plaintiff argues that there is no "inconsistent federal law" because Denton, Perron, and the other cases relied on by W&T are federal common law cases grafted onto cases in which some provision of the LHWCA was at stake. (Doc. 163 at 3, 4-7.) But here, there is no LHWCA issue and the only issue is one arising under tort law, i.e., whether the alleged tortfeasor Brubaker was an employee of AGR and/or W&T. (Id.) Thus, Louisiana's tort law, including its dual employer doctrine, must apply. (Id.)
Specifically, says Plaintiff, the issue in this case in no way implicates the LHWCA's exclusive remedy provision, § 905(a), its remedy for covered employees against vessels, § 905(b), or its prohibition against a covered employee suing co-employees, § 933(i). (Doc. 163 at 5, citing 33 U.S.C. §§ 905(a), 905(b), 933(i).)
"The only provision of the LHWCA that is even tangentially implicated is 33 U.S.C. § 933(a), which permits Mr. Parkman to bring claims against non-vessel third parties who are neither his employer nor a co-employee." (Id.) Thus, under established Fifth Circuit precedent, Louisiana law applies to the exclusion of any federal common law. (Doc. 163 at 4-7, discussing Fontenot v. Dual Drilling Co., 179 F.3d 969 (5th Cir. 1999).) Plaintiff also distinguishes Denton and Perron, two cases relied on by AGR. (Id. at 7-8.)
AGR replies that W&T's reliance on the Energy XXI case is misplaced because "[t]he [Energy XXI court] . . . went through a choice of law analysis ultimately concluding the General Maritime Law would apply and, for that reason, the Louisiana law of 'dual employer' was inapplicable." (Doc. 168 at 13.) AGR also represents that "the Judge ruled the consultant in Energy XXI [sic] was, in fact a borrowed employee, just as AGR contends here." (Id.)
The Court is troubled over AGR's misrepresentation of the holding in the Energy XXI case. Directly contrary to what AGR represents, the court in Energy XXI ruled that, as to the borrowed servant issue raised by New Tech's Motion for Summary Judgment and the applicability of Louisiana's dual employer doctrine: (1) "OCSLA govern[ed], not maritime law, notwithstanding the fact that a jack-up drilling rig was involved[,]" 787 F. Supp. 2d at 624; (2) "the court . . . appl[ied] Louisiana law" to resolve the borrowed servant issue, id.; and (3) "applying Louisiana state law, the court finds that under Morgan, Energy XXI has raised an issue of material fact with regard to whether it and New Tech were dual employers[,]" id. at 625. Counsel for AGR is reminded of his responsibilities under Federal Rule of Civil Procedure 11.
After careful consideration, the Court rejects AGR's contention that there is an inconsistent federal law such that Louisiana's dual employer rule is inapplicable to this case. It applies. Although it is unclear whether AGR is arguing that federal common law supplies the inconsistent federal law or whether the text of the LHWCA somehow provides a contrary rule, in either event, AGR's position is misplaced.
To the extent that AGR is arguing that the federal common law rule announced in Denton applies as "inconsistent federal law" to supplant Louisiana state law, the Fifth Circuit has "consistently rejected" the notion that federal common law can displace otherwise applicable state tort law as "inconsistent federal law." Fontenot v. Dual Drilling Co., 179 F.3d 969, 977 (5th Cir. 1999) (first citing Marcel v. Placid Oil Co., 11 F.3d 563, 570-71 (5th Cir. 1994) (adopting Louisiana's rule on use of "pre-tax" wages in computing damages for wages and lost earning capacity); and then citing Olsen v. Shell Oil Co., 708 F.2d 976, 983 (5th Cir. 1983) (adopting the Louisiana rule on inflation)); see also Underwriters at Lloyd's London v. OSCA, Inc., No. 03-20398, 2006 WL 941794, at *3 (5th Cir. Apr. 12, 2006) (per curiam) (citing Fontenot, 179 F.3d at 977) (". . . this circuit has rejected attempts to have 'federal common law' override Louisiana tort law in such cases.").
As the court in Energy XXI stated in the specific context of applying the Morgan dual employer rule in an OCSLA case,
When OCSLA borrows a remedy provided by state law, it makes " 'the entire state cause of action applicable federal law, enforceable as federal law.' " Olsen v. Shell Oil Co., 708 F.2d 976, 983 (5th Cir. 1983) (quoting and approving of Gulf Offshore Co. v. Mobil Oil Corp., 628 S.W.2d 171, 174 (Tex. App.-Houston [14th Dist.] 1982), cert. denied 459 U.S. 945, 103 S.Ct. 259, 74 L.Ed.2d 202 (1982)). The Supreme Court, in Chevron Oil Co. v. Huson, explained that Congress, in enacting OCSLA, "recognized that 'the Federal Code was never designed to be a complete body of law in and of itself' and thus that a comprehensive body of state law was needed . . . If Congress' goal was to provide a comprehensive and familiar body of law, it would defeat that goal to apply only certain aspects of a state personal injury remedy in federal court." Chevron Oil Co. v. Huson, 404 U.S. 97, 102-03, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), overruled
on other grounds by Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (quoting Rodrigue v. Aetna Cas. & Surety Co., 395 U.S. 352, 358, 361, 365, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969)). The Supreme Court therefore rejected an argument that the federal common law doctrine of laches should apply rather than a one-year statute of limitations under Louisiana law in a case involving personal injury occurring on a rig on the Outer Continental Shelf, even though Louisiana otherwise applied as surrogate federal law under OCSLA. Id. Since Huson, the Fifth Circuit has "consistently rejected attempts of litigants to have 'federal common law' override rules of Louisiana tort law in actions arising on fixed platforms on the Outer Continental Shelf." Fontenot v. Dual Drilling Co., 179 F.3d 969, 977 (5th Cir. 1999) (citing Marcel v. Placid Oil Co., 11 F.3d 563, 570-71 (5th Cir. 1994) and Olsen, 708 F.2d at 976). Here, federal law is not "inconsistent" with state law with regard to Energy XXI's gross negligence claim, notwithstanding the fact that there is a difference in whether the dual-employer doctrine applies, which is only one aspect of the law.Energy XXI, 787 F. Supp. 2d at 624-25.
Therefore, applying Louisiana state law, the court finds that, under Morgan, Energy XXI has raised an issue of material fact with regard to whether it and New Tech were dual employers.
To the extent AGR is arguing that the text of the LHWCA is the "inconsistent federal law" that would supplant Louisiana's dual employer rule, AGR points the Court to no part of the LHWCA which directly addresses the issue before the Court. Ragusa v. Louisiana Guaranty Insurance Ass'n, No. 21-1971, 2023 WL 2573887 (E.D. La. Mar. 20, 2023) is a recent example of where a specific provision in the LHWCA (the LHWCA's exclusivity provision, 33 U.S.C. § 905(a)) was found to be inconsistent federal law so as to preclude Louisiana law's intentional act exception to an employer's immunity from tort liability. Similarly, another case relied on by AGR, Perron, 970 F.2d at 1411-12, likewise involved a specific provision of the LHWCA, 33 U.S.C. § 933(i), which bars suits between co-employees.
But the present case involves no such specific provision of the LHWCA. Plaintiff is not suing his employer or anyone claiming to be his employer for worker's compensation or in tort. This would trigger the LHWCA's exclusivity provision. 33 U.S.C. § 905(a). Nor is his claim against a vessel under 33 U.S.C. § 905(b) or against one who is arguably his co-employee, which is prohibited by 33 U.S.C. § 933(i). The only section of the LHWCA even peripherally implicated is 33 U.S.C. § 933(a), which allows one covered under the LHWCA to bring a third-party tort action against non-vessel defendants. As to this provision, the Fifth Circuit in Fontenot stated,
Section 933 establishes procedures by which third-party claims are to be prosecuted in the context of a predicate LHWCA claim. Any such third-party claim, unless it is a § 905(b) or (c) claim against a vessel, must be based on some external authority. In this case, because the third-party tortfeasor was not a vessel, the external authority is the statutory law of the State of Louisiana, which imposes tort liability on a third-party tortfeasor proven to be concurrently negligent . . . .Fontenot, 179 F.3d at 976 (internal citations omitted).
Obviously, it is not inconsistent with OCSLA or LHWCA for Louisiana to impose third-party liability; § 933 expressly contemplates such an external law.
Accordingly, the Court finds that it may properly consider Louisiana's dual employer doctrine in this case. See Washington, 2018 WL 263230, at *4-5 (applying the dual employer doctrine in an OCSLA case); see also Energy XXI, 787 F. Supp. 2d at 624-25 (same).
In Morgan, the Louisiana Supreme Court held that "where a general employer is engaged in the business of hiring out its employees under the supervision of another employer, the general employer remains liable for the torts of the 'borrowed' employees." 710 So. 2d at 1078. Under this doctrine, the general employer remains liable for its employee's torts even if it does not control the employee's work because its business is furthered when it loans out its employee. Id. at 1083.
In this case, the record shows that AGR was in the business of hiring out its employees under the supervision of others. (Corp. Depo. of AGR, Doc. 160-2 at 43-44; see also id. at 11-17.) Although AGR claims in its SUMF that Brubaker was "an independent contractor/consultant to AGR[,]" (AGR's SUMF, Doc. 131-1 at 1, ¶ 1), and that AGR and Brubaker entered into a contract reflecting same, (id. ¶ 2), Plaintiff correctly notes that, "[i]n its answer (as well as in depositions), AGR expressly admitted that it employed—even 'directly employed'—Mr. Brubaker[,]" (Plaintiff's RSUMF, Doc. 163-1 at 1-2, ¶ 1, citing Doc. 106 at 6, ¶ 18). "Indeed, AGR is unable to produce any written contract whatsoever between itself and Mr. Brubaker, which further highlights that this theory is unproven." (Id., citing Corp. Depo. of AGR, Doc. 163-4 at 30-31.) Thus, according to Plaintiff, "[t]he admission in AGR's answer is binding in this case and may not be revisited." (Id. at 1, ¶ 1, citing, inter alia, State Farm Fire & Cas. Co. v. Flowers, 854 F.3d 842, 845 (5th Cir. 2017).)
Although AGR maintains in its SUMF that Brubaker was an "independent contractor 'consultant,' " of AGR, (Doc. 131-2 at 1), its Motion does not seek relief on this basis and this point is not argued in either its original or reply brief; rather, AGR's Motion and briefing focuses only on Brubaker's status as a borrowed employee of W&T. Furthermore, Plaintiff is correct in his representation regarding AGR's unequivocal statement in its answer that "AGR admits that Mr. Brubaker was directly employed by AGR[,]" (Doc. 106 at 6, ¶ 18), and its binding effect on AGR. State Farm Fire & Cas. Co. v. Flowers, 854 F.3d at 845. Finally, although Plaintiff argued the point in his opposition brief, (Doc. 163 at 2-3), AGR did not respond in its reply.
Because, under Morgan, AGR remains an employer of Brubaker regardless of whether W&T was his borrowing employer, that portion of AGR's Motion asking the Court to find as a matter of law that AGR "did not have any employee involved in the subject incident and has no vicarious or any other liability for the subject incident[,]" (Doc. 131 at 1), is denied.
B. Are there genuine issues of material fact regarding whether Brubaker was a borrowed employee of W&T?
AGR also asks the Court to find as a matter of law that Brubaker was a borrowed employee of W&T at the time of Parkman's accident.
To determine whether an employee is a "borrowed employee," we consider the nine factors articulated in Ruiz v. Shell Oil Company:
1. Who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation?
2. Whose work was being performed?
3. Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
Raicevic v. Fieldwood Energy, L.L.C., 979 F.3d 1027, 1031 (5th Cir. 2020) (first citing Ruiz, 413 F.2d 310; and then citing Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1244 (5th Cir. 1988)).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?
Although no single one of these factors is decisive, the first is the most critical. "As we have stated, '[t]he central question in borrowed servant cases is whether someone has the power to control and direct another person in the performance of his work.' " Mays v. Dir., Off. of Workers' Comp. Programs, 938 F.3d 637, 642 (5th Cir. 2019) (quoting Hebron v. Union Oil Co. of Cal., 634 F.2d 245, 247 (5th Cir. 1981) (per curiam) (citing Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977))).
The court in Raicevic made several important points regarding the application of the Ruiz factors. First, although "[t]hese nine factual inquiries underlie borrowed-employee status, [ ] the ultimate determination of whether an employee is a borrowed employee is a question of law for the court to decide." Raicevic v. Fieldwood Energy, L.L.C., 979 F.3d 1027, 1031 (5th Cir. 2020). Second, the Raicevic court recognized that "[d]etermining borrowed-employee status . . . is a complex question of law." Id. Third, "in different cases, [ ] certain of these factors may be more important than others, at least in the light of the facts [ ] before the court." Id. (quoting Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 376 (5th Cir. 1985)).
While this statement is frequently repeated in the Fifth Circuit's borrowed servant jurisprudence, "some cases involve factual disputes on the issue of borrowed employee status and require findings by a fact-finder." Hewitt v. W&T Offshore, Inc., No. 22-461, 661 F.Supp.3d 568, 580 (E.D. La. Mar. 13, 2023) (citing Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1244-45, and discussing two Fifth Circuit cases reversing grants of summary judgment on the borrowed servant question because of factual issues—Brown v. Union Oil Co. of Cal., 984 F.2d 674, 676 (5th Cir. 1993) and Alday v. Patterson Truck Line, Inc., 750 F.2d 375 (5th Cir. 1985)).
Of the nine Ruiz factors, only two are contested by the opponents to AGR's Motion: the first (control) and third (agreement, understanding, meeting of the minds). (Doc. 160 at 5-7.) As support for its position on both, W&T points the Court to two sections of the MSA between AGR and W&T:
AGR and W&T agree that the Ruiz factors control the borrowed servant issue. Plaintiff does not argue the Ruiz factors apply but instead, contends that "neither the LHWCA nor federal law generally have anything to say on a borrowed-servant theory for claims against third-party tortfeasors (i.e., non-LHWCA employers) like AGR and W&T." (Doc. 163 at 3.) However, Plaintiff fails to point the Court to any Louisiana law that differs from Ruiz for purposes of deciding whether a worker has become a borrowed employee.
2. [W&T] shall designate in the Order the Work it desires to be performed by Contractor [AGR], but W&T shall leave to [the] Contractor the methods and details of performance, W&T being interested only in the results obtained and having no control over the manner and method of performance . . . .
3.1 It is expressly understood and agreed that Contractor [AGR] is an independent contractor and neither Contractor, nor Contractor's principals, partners, employees or subcontractors, are servants, agents or employees of W&T.(Doc. 160-3 at 1, §§ 2, 3.1.)
In support of its opposition, W&T argues that the existence of contract language such as that quoted above can, in combination with other evidence, create a question of fact sufficient to defeat summary judgment. (Doc. 160 at 5-6, citing Alday, 750 F.2d at 378 and Billizon v. Conoco, Inc., 993 F.2d 104, 106 (5th Cir. 1993).)
In its response to AGR's SUMF, W&T states that, "[w]hile W&T admits that it did exercise some level of control over Brubaker's work activities, the extent that AGR retained control over Brubaker's day-to-day activities is disputed." (W&T's RSUMF, Doc. 160-1 at 2, ¶ 16, record citation omitted.) In its opposition brief, W&T supports this contention by arguing that "the terms of the MSA make clear that W&T was concerned only with the results of Brubaker's work, and that it did not control the method and details of AGR employees' performance." (Doc. 160 at 6.) W&T also maintains that "AGR maintained the right to exercise control over Brubaker." (Id.)
The only record evidence other than the above quoted contract language used by W&T to support its contention that "the extent" of AGR's control over Brubaker's day-to-day activities is "in dispute," is AGR's corporate deposition. (See Corp. Depo. of AGR, Doc. 160-2 at 17, 42, 43, 45, 51, 54.) This testimony shows that, although AGR did no training itself, (id. at 17), AGR made sure that its employees were properly trained and had the required certifications, (id. at 42-43, 51); that AGR kept a file on Brubaker showing the clients he had worked for and his updated resume, (id. at 45); and that AGR had its own health, safety, and environmental ("HS&E") manual, (id. at 42). W&T argues that this testimony creates "issues of fact . . . as to the exact level of control AGR retained over Brubaker." (Doc. 160 at 7.)
As previously mentioned, both W&T and Plaintiff admit many underlying facts supporting Brubaker's status as a borrowed employee. "W&T and AGR entered into a contract in connection with the provision of Mr. Brubaker's services to W&T." (AGR's SUMF, Doc. 131-1 at 1, ¶ 3.) Brubaker was "assigned . . . to act as W&T's 'company man.' " (Id. ¶ 4.) Brubaker's work assignments, work hours, shift, and days worked were all "dictated by W&T." (Id. at 1-2, ¶¶ 5-8.) Brubaker would "submit a daily time ticket to W&T" which would "approve the number of hours worked" by him and, "[u]pon approval by W&T . . . he would be paid by AGR by funds from W&T." (Id. at 2, ¶¶ 11-13.) He "worked as a consultant . . . for W&T for over two years." (Id. ¶ 15.)
Compare AGR's Statement of Uncontested Material Facts (AGR's SUMF, Doc. 131-1) with W&T's response (W&T's RSUMF, Doc. 160-1 at 1-2), and Plaintiff's response (Plaintiff's RSUMF, Doc. 163-1 at 1-2).
Furthermore, specific in countering W&T's contention that AGR "retained control over Brubaker's day-to-day activities," (W&T's RSUMF, Doc. 160-1 at 2, ¶ 16), AGR produced abundant evidence that only W&T directed and controlled the methods and details of Brubaker's work.
Q. Once Mr. Brubaker sets foot on the W&T platform to work as the W&T company man, the company that's there to control the method, the details, how he's doing the work is W&T.
A. Yes.(Corp. Depo. Of AGR, Doc. 131-4 at 20.)
Q. So the first one I want to -- we talked a little bit about the question is going to be who had control over Mr. Brubaker and the work he was performing out there at the time of the incident. Do you follow what I'm saying?(Id. at 21.)
A. Yes, sir.
Q. That would not be AGR. Do you agree?
A. Correct.
Q. That would be W&T. Correct?
A. Correct.
Brubaker himself stated that "he received all directives concerning his work activities from W&T." (Affidavit of Mark Scott Brubaker, Doc. 131-5 at 3, ¶ 13.)
Again, the only evidence produced by W&T to counter AGR's showing is the above quoted contract language from the MSA and testimony of AGR's corporate representative that AGR had its own health, safety, and environmental manual, had a personnel file on Brubaker, and made sure that he had the proper safety training and certifications. (Doc. 160 at 5-7.)
The Fifth Circuit has previously considered the role of contract language which attempts to control the borrowed employee status of the worker and the relative weight to be given to it in evaluating the Ruiz factors. In Melancon, the contract between the owner/operator of a production platform on the OCS and its contractor specified that the "no [contractor's] employee is to be considered the agent, servant, or representative of [the owner/operator]." 834 F.2d at 1245. The court wrote that "[o]bviously parties to a contract cannot automatically prevent a legal status like 'borrowed employee' from arising merely by saying in a provision in their contract that it cannot arise." Id. Indeed, "[t]he reality at the worksite and the parties' actions in carrying out a contract [ ] can impliedly modify, alter, or waive express contract provisions." Id.
The issue was again discussed in Brown v. Union Oil Co. of California, 984 F.2d 674 (5th Cir. 1993). Where such a contract provision "purports to prohibit [an employee's] borrowed employee status . . . . [,] [s]uch contract provision [ ] does not automatically prevent borrowed employee status from arising. The parties' actions in carrying out the contract can impliedly modify or waive the express provision." Brown, 984 F.2d at 677-78 (internal citations omitted).
But the court in Brown also noted that "[w]hether the parties had an understanding that modified the contract may raise disputed factual issues." Id. at 678 (citation omitted). In reversing the district court's directed verdict on borrowed servant status, the court held that because "the contract provision between the two employers weighs against borrowed employee status, and the remaining factors do not overwhelmingly show that Brown was a borrowed employee . . . . [i]mportant factual questions need to be resolved." Id. at 679. Thus, the court remanded to the lower court.
Similarly, in Alday, the "contract contained . . . provisions attempting to negate any borrowed employee relationship." 750 F.2d at 377. However, "despite [a] factual showing supporting an inference of [the defendant's] control of [the plaintiff,]" the Fifth Circuit found that the contract created a sufficient factual issue to warrant reversal of the district court's grant of summary judgment. Id. In its brief, W&T correctly characterizes Alday's holding as follows: "While [contract provisions attempting to negate borrowed servant status] alone are not enough to extinguish a potential borrowed employee relationship, it is sufficient to raise a genuine issue of material fact to preclude a summary judgment ruling on the issue when coupled with conflicting witness testimony and/or conduct of the parties." (Doc. 160 at 5-6, emphasis added.)
In Billizon, the Fifth Circuit attempted to clarify the role of these sort of contractual provisions in the summary judgment analysis. 993 F.2d 104. There, the court stated,
The question in this case is whether the existence of a contract provision purporting to prohibit borrowed-employee status makes the district court's summary judgment inappropriate, given that such a contract provision could create a factual dispute on the third factor if the other factors were disregarded. Previously faced with this issue, this court has concluded that summary judgment is appropriate when the remaining factors clearly point to borrowed-employee status. See Brown, 984 F.2d at 678 n. 5; Alexander v. Chevron, U.S.A., 806 F.2d 526, 529 (5th Cir. 1986) (citing Gaudet v. Exxon Corp., 562 F.2d 351, 358 (5th Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978)).Id. at 106 (emphasis added).
The question for this Court is whether the Ruiz factors other than the contractual provisions relied on by W&T "clearly point to borrowed-employee status," id., or to use the language from Brown, do the "remaining factors [ ] overwhelmingly show that [Brubaker] was a borrowed employee . . . ." Brown, 984 F.2d at 679. If so, summary judgment is warranted despite the contract. If not, summary judgment must be denied. The Court concludes that the non-contract record evidence clearly and overwhelmingly points to Brubaker's status as a borrowed employee of W&T.
The recent case of Hewitt v. W&T Offshore, Inc. illustrates the kinds of factual disputes that would justify the denial of summary judgment in the context of contract provisions agreed to by the parties that declare that the worker is not a borrowed employee. No. 22-461, 661 F.Supp.3d 568 (E.D. La. Mar. 13, 2023). In Hewitt, the plaintiff was a mechanic employed by Pelstar Mechanical Services, LLC, who was sent to W&T's deep-water oil and gas production platform on the OCS to replace W&T's regular mechanic. Id. at 570-71. The plaintiff was working on the platform pursuant to an MSA between W&T and Pelstar which provided "it is expressly understood and agreed that [Pelstar] is an independent contractor and that neither [Pelstar] nor [Pelstar's] principals, partners, employees or subcontractors are servants, agents or employees of [W&T]." Id. at 582.
After reviewing Brown, 984 F.2d 674, Alday, 750 F.2d 375, and Robertson v. Blanchard Contractors, Inc., 2012 WL 6202988 (E.D. La. Dec. 12, 2012), the Hewitt court concluded that "there is conflicting evidence regarding whether the parties' conduct modified the contract provision purporting to prohibit borrowed employee status . . . . [including] disputes of fact regarding the control the parties exercised . . . ." Hewitt, 661 F.Supp.3d at 583. Hence, summary judgment was denied.
The record evidence giving rise to the factual dispute on this issue of control included (but was not limited to) the plaintiff's testimony that, although he cooperated with other workers on the platform for the "overall function of the platform," his work as mechanic was done "independently." Id. at 574. He testified that he did not receive discrete instructions from W&T on how to perform his job and that W&T "did not control his work." Id.; see also Washington, 2018 WL 263230, at *3 (denying summary judgment on borrowed servant status in the face of contract provisions similar to the present where the court found material issues of fact as to the third Ruiz factor).
In considering a motion for summary judgment, all reasonable inferences to be drawn from both the evidence and undisputed facts are [to] be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see also Tolan v. Cotton, 572 U.S. 650, 134 S.Ct. 1861, 1868, 188 L.Ed.2d 895 (2014) ("at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party").Solid Sys. CAD Servs. v. Total Rise Tech., Pty. Ltd., No. 12-3176, 2015 WL 926540, at *2 (S.D. Tex. Mar. 4, 2015). "The inferences drawn from the record, however, must be rational and reasonable, not idle, speculative, or conjectural." Richoux v. Armstrong Cork Corp., 777 F.2d 296, 297 (5th Cir. 1985).
In this case, the testimony of AGR's corporate representative and Brubaker's affidavit that W&T controlled Brubaker's work on the W&T platform is uncontradicted. Even when the Court draws all reasonable inferences in favor of W&T, as the Court is required to do, there are no facts presented by W&T independent of the MSA that move the needle on the critical question of control. Any inferences that could be drawn from the meager additional facts provided by W&T over and above the contract language are speculative and conjectural. That AGR assured its customers Brubaker was trained and had the proper credentials, kept a personnel file on him, and had its own HS&E manual, do not inform, beyond speculation and conjecture, the question of who controlled the methods and details of Brubaker's work on the W&T platform. Thus, when one looks at the record evidence in addition to the MSA language, the Court concludes that it clearly and overwhelmingly points to borrowed employee status. On the record before the Court, all reasonable jurors would conclude Brubaker was a borrowed employee of W&T. Accordingly, AGR's Motion will be granted on this issue.
VI. CONCLUSION
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment (Doc. 131) filed by AGR/FJ Brown is DENIED in part and GRANTED in part. The Motion is GRANTED in that the Court holds, as a matter of law, that Mark Scott Brubaker was a borrowed employee of W&T Offshore, Inc. In all other respects, the Motion is DENIED.