Filed: Sep. 16, 2020
Latest Update: Sep. 17, 2020
Summary: Case: 20-30278 Document: 00515567469 Page: 1 Date Filed: 09/16/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 16, 2020 No. 20-30278 Lyle W. Cayce Summary Calendar Clerk Walter Skipper, Plaintiff—Appellant, versus A&M Dockside Repair, Incorporated, Defendant-Third Party Plaintiff—Appellee, versus Helix Resources, L.L.C., Third Party Defendant—Appellee. Appeal from the United States District Court for the Eastern District of L
Summary: Case: 20-30278 Document: 00515567469 Page: 1 Date Filed: 09/16/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 16, 2020 No. 20-30278 Lyle W. Cayce Summary Calendar Clerk Walter Skipper, Plaintiff—Appellant, versus A&M Dockside Repair, Incorporated, Defendant-Third Party Plaintiff—Appellee, versus Helix Resources, L.L.C., Third Party Defendant—Appellee. Appeal from the United States District Court for the Eastern District of Lo..
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Case: 20-30278 Document: 00515567469 Page: 1 Date Filed: 09/16/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 16, 2020
No. 20-30278 Lyle W. Cayce
Summary Calendar Clerk
Walter Skipper,
Plaintiff—Appellant,
versus
A&M Dockside Repair, Incorporated,
Defendant-Third Party Plaintiff—Appellee,
versus
Helix Resources, L.L.C.,
Third Party Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CV-6164
Before King, Smith, and Wilson, Circuit Judges.
Case: 20-30278 Document: 00515567469 Page: 2 Date Filed: 09/16/2020
No. 20-30278
Per Curiam:*
Plaintiff-appellant Walter Skipper appeals the district court’s decision
granting partial summary judgment in favor of defendants-appellees A&M
Dockside Repair (“A&M”), Inc., and Helix Resources, L.L.C. (“Helix”).
The district court based its decision on the application of the borrowed
servant defense. We AFFIRM.
I.
On August 11, 2017, Skipper was working on a barge in one of A&M’s
shipyards when he allegedly fell into an open manhole cover and suffered
severe injuries. At the time of the accident, Skipper was employed by Helix
as a painter and blaster. Helix provided Skipper’s services to A&M pursuant
to a services agreement.
Following the accident, Skipper filed a negligence action against
A&M, and A&M then filed a third-party complaint against Helix. After A&M
and Helix resolved the dispute between them, they filed a joint motion for
partial summary judgment. The district court granted the joint motion on the
grounds that “A&M was Skipper’s borrowing employer for the purposes of
the [Longshore & Harbor Workers’ Compensation Act (the “LHWCA”)].”
If this conclusion holds, compensation and medical payments are Skipper’s
sole remedy under the LHWCA. See 33 U.S.C. § 933(i) (“The right to
compensation or benefits under this chapter shall be the exclusive remedy to
an employee who is injured . . . by the negligence or wrong of any other person
. . . in the same employ.”). Skipper filed a timely notice of appeal.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30278
II.
We review a district court’s order granting summary judgment de
novo viewing all facts and evidence in the light most favorable to the non-
moving party. Burrell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir.
2016). Whether an employee is a borrowed servant is a question of law and,
therefore, also reviewed de novo. See Gaudet v. Exxon Corp.,
562 F.2d 351,
358 (5th Cir. 1977); Ruiz v. Shell Oil Co.,
413 F.2d 310, 314 (5th Cir. 1969).
But we review a district court’s decision regarding whether a party has
waived an affirmative defense for abuse of discretion. Motion Med. Techs.,
L.L.C. v. Thermotek, Inc.,
875 F.3d 765, 771 & n.8 (5th Cir. 2017).
Skipper makes two arguments why summary judgment was improper.
First, Skipper argues that A&M and Helix waived the borrowed servant
defense. Second, Skipper argues that even if the defense was not waived,
there is a genuine dispute as to material facts that precludes summary
judgment. We address each argument in turn.
The district court concluded that the borrowed servant defense was
not waived. We agree. Federal Rule of Civil Procedure 8 requires a defendant
to “state in short and plain terms its defenses to each claim asserted against
it” and “affirmatively state any avoidance or affirmative defense.” FED. R.
CIV. P. 8(b)(1)(A), (c)(1). Although Skipper is correct that neither A&M nor
Helix expressly raised the borrowed servant defense as an affirmative defense
in their answers, this failure does not necessarily result in waiver. See Motion
Med., 875 F.3d at 772 (observing that we have “repeatedly rejected waiver
arguments when a defendant raised an affirmative defense for the first time
at summary judgment—or even later”). As we have previously held, “an
affirmative defense is not waived if the defendant ‘raised the issue at a
pragmatically sufficient time and [the plaintiff] was not prejudiced in its
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ability to respond.’” Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009)
(quoting Allied Chem. Corp. v. Mackay,
695 F.2d 854, 855-56 (5th Cir. 1983)).
In this case, the district court concluded that Skipper had reasonable
notice and was not prejudiced by the district court’s consideration of the
borrowed servant defense at the summary judgment stage. First, the district
court observed that Helix made various assertions in its answer that
implicated the borrowed servant defense. For example, Helix asserted that
Skipper was on a “mission” for Helix and had “no right to seek tort remedies
from Helix, nor any other party to attempt to pass through alleged fault to
Helix as no Helix employees or supervisors were present at the time of the
incident and Helix relinquished control, supervision, and direction to
A&M.” Additionally, Helix asserted that Skipper’s sole remedy was for
compensation under the Louisiana Worker’s Compensation Act or,
alternatively, the LHWCA. 1 Second, the borrowed servant defense was
raised explicitly in a partial summary judgment motion filed months before
trial. Third, Skipper made thorough and reasoned responses to the
arguments that A&M was Skipper’s borrowing employer and made no
argument that he needed additional discovery on this issue. Therefore, the
district court did not abuse its discretion in concluding that the defense was
not waived.
Next, Skipper argues that there remains a genuine dispute as to
material facts as to whether A&M was acting as his borrowing employer. In
Ruiz v. Shell Oil, we set out nine factors relevant to whether the borrowed
servant defense applies. No one factor is dispositive. See Brown v. Union Oil
1
Skipper’s argument that these assertions did not put him on notice of the
borrowed servant defense because they were raised in Helix’s answer to A&M’s third-party
complaint is unavailing. To be sure, as the district court correctly observed, Helix’s answer
is part of the record in this case.
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Co. of Ca., 984 F.2d 674, 676 (5th Cir. 1993). Skipper argues that there is a
genuine dispute as to material fact regarding four of the nine factors and that
two of the factors are neutral. We address each of the nine factors in turn.
(1) Who has control?
This inquiry focuses on whether A&M or Helix exerted greater
control over Skipper. Skipper argues that because a trier of fact could
conclude that he was acting in cooperation with A&M employees rather than
in subordination to their directions, there is a genuine dispute as to material
fact regarding control that precludes summary judgment. But Skipper’s own
testimony refutes this argument. Specifically, Skipper established that he
followed the directions of A&M’s yard superintendent, referring to A&M as
the “boss.” Additionally, the yard superintendent testified that Skipper’s
only supervisors were A&M foremen and that he directed Skipper’s work.
Indeed, Helix did not have any supervisors at the jobsite. Skipper also argues
that his status as an independent contractor per the terms of the services
agreement between A&M and Helix, creates a genuine dispute as to material
fact regarding control. This argument is meritless. In fact, we have previously
upheld the application of the borrowed servant defense despite this type of
clause. See, e.g., Gaudet, 562 F.2d at 358 (observing that the “trial court could
have concluded that the test for borrowed employee status was met
regardless of the ultimate resolution of the factual matter of the agreement
between the employers”). Therefore, we find that this factor favors
borrowed servant status.
(2) Whose work is being performed?
This inquiry focuses on whether Skipper was performing A&M’s or
Helix’s work. Skipper argues that there is a genuine dispute as to material
fact regarding whose work was being performed. He argues that he was only
incidentally performing A&M’s work and instead performing Helix’s work,
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whose business as a temporary labor company is the hiring out of personnel.
Skipper’s argument is meritless. The yard superintendent testified that
Skipper repaired and cleaned the barge for A&M. In other words, Skipper
performed A&M’s work. To that end, Skipper’s reliance on cases where a
contracted laborer was performing ancillary work is misplaced. In this case,
it is clear that Helix hired out its employees to do A&M’s work. Therefore,
we find that this factor favors borrowed servant status.
(3) Was there an agreement or understanding between Helix and
A&M?
Skipper argues that there is a genuine dispute as to material fact
regarding this factor in light of the independent contractor clause in the
agreement between Helix and A&M. Specifically, the agreement provides
that Skipper “shall at all times be deemed an independent contractor and the
relationship of these parties to [A&M] shall not at any time constitute any
relationship other than that of independent contractor.” First, no one
disputes the existence of this clause, and second, as discussed above, we have
previously found borrowed servant status despite the presence of this type of
clause. See Gaudet, 562 F.2d at 358. Although this clause weighs in Skipper’s
favor, there is no genuine dispute as to any material fact regarding this factor.
Therefore, this factor does not compel a denial of summary judgment.
(4) Did Skipper acquiesce in the new work situation?
This factor focuses on whether the employee agreed to the work
arrangement. There is no evidence that Skipper took issue with working for
A&M, and in any event, he does not argue that there is a genuine dispute as
to any material fact regarding this factor. We find that this factor favors
borrowed servant status.
(5) Did Helix terminate its relationship with Skipper?
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Skipper argues that this factor should have weighed against the
borrowed servant defense or have been considered as neutral because there
is no evidence that Helix terminated its relationship with him. Skipper
mischaracterizes the focus of this inquiry. Specifically, this inquiry focuses
on whether Skipper maintained contact with Helix and not whether his actual
employment relationship was severed. See Hotard v. Devon Energy Prod. Co.
L.P., 308 F. App’x 739, 742 (5th Cir. 2009) (citing Amoco Melancon v. Amoco
Prod. Co., 834 F.2d 1238, 1246 (5th Cir. 1988)). To that end, Skipper offers
no evidence to show that he was in communication with or supervised by
Helix employees. In fact, the evidence cuts against Skipper’s position given
his testimony and the yard superintendent’s testimony that there were no
Helix supervisors at the jobsite. Therefore, we find that this factor favors
borrowed servant status.
(6) Who furnished the tools and place for performance?
Skipper does not make arguments about this factor. In any case, the
majority of the tools were provided by A&M, and the place of performance
was A&M’s shipyard. We find that this factor favors borrowed servant status.
(7) Was the new employment over a considerable length of time?
There is no dispute that Skipper worked for A&M for six days.
Skipper argues that this factor should have weighed against the borrowed
servant defense or have been considered as neutral. The district court did, in
fact, consider this factor to be neutral. We agree with the district court.
Indeed, we have previously found that this factor is “significant only when
the [borrowing] employer employs the employee for a considerable length of
time,” but where an employee is injured early in the employment, the factor
is neutral. See Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 618 (5th
Cir. 1986). Therefore, we find this factor to be neutral.
(8) Who had the right to discharge Skipper?
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This inquiry focuses not on which entity had the power to terminate
Skipper’s employment outright but simply whether A&M had the authority
to terminate Skipper’s services with A&M. See Capps, 784 F.2d at 618
(explaining that the proper focus of the inquiry is whether the borrowing
employer has the “right to terminate [the borrowed employee’s] services
with itself”). Skipper does not make arguments about this factor. In any case,
A&M had the right to discharge Skipper from the jobsite and request a new
worker. Therefore, we find that this factor favors borrowed servant status.
(9) Who had the obligation to pay the employee?
Skipper argues that there is a genuine dispute as to material fact
regarding this factor. He is incorrect. A&M paid Helix, which in turn paid
Skipper, in effect, out of the funds from A&M. When the funds used to pay
the employee are received from the entity the employee is contracted out to,
we have held that that entity, in effect, pays the employee. See id. Therefore,
we conclude that this factor weighs in favor of borrowed servant status.
Despite Skipper’s arguments to the contrary, there is no genuine
dispute as to any material fact, and the district could determine that A&M
was Skipper’s borrowing employer. Because seven of the nine borrowed
servant factors favor borrowed servant status, we conclude that Skipper was
a borrowed employee and A&M his borrowing employer. Therefore, A&M
and Helix were entitled to partial summary judgment.
III.
For the foregoing reasons, the decision of the district court is
AFFIRMED.
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