REBECCA F. DOHERTY, District Judge.
Pending before the Court are two motions: (1) Motion for Summary Judgment [Doc. 15] filed by defendant Baker/MO Services, Inc. ("Baker"); and (2) Motion for Summary Judgment [Doc. 16] filed by defendant W & T Offshore, Inc. ("W & T"). In its motion, W & T seeks dismissal of plaintiffs claims against W & T on grounds plaintiff was a borrowed employee of W & T and, as a result of the exclusive remedy provisions of the Longshore and Harbor Workers Compensation Act ("LHWCA"), 33 U.S.C. § 901, et seq., applicable by virtue of the outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331, et seq., W & T is tort immune and, therefore, plaintiff's tort claims against W & T should be dismissed. In its motion, Baker argues Raymond Chatelain, Jr., who supervised the plaintiffs work on the W & T platform, is also a borrowed employee of W & T. Baker therefore contends plaintiff and Mr. Chatelain, are "co-employees," and thus, pursuant to the LHWCA, Baker, as Mr. Chatelain's nominal employer, would be immune from tort liability as to any negligence on Mr. Chatelain's part.
Plaintiff responded to both motions by filing one opposition brief. In his brief, plaintiff merely argues genuine issues of material fact exist, particularly with respect to whether W & T had control over plaintiff for borrowed employee status, and thus, they preclude the entry of summary judgment in either defendant's favor [Doc. 19]. Plaintiff does not specifically dispute or contravene the arguments and/or evidence presented in Baker's motion for summary judgment or present evidence on his own behalf. For the following reasons, both motions for summary judgment are GRANTED, and plaintiffs claims against both W & T and Baker are DENIED AND DISMISSED WITH PREJUDICE.
"A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof." FED. R. CIV. PROC. 56(b). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R. CIV. PROC. 56(c).
FED. R. CIV. PROC. 56(e).
As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994):
The Supreme Court has instructed:
Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
The Fifth Circuit has further elaborated:
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (citations and internal quotations omitted).
Finally, in evaluating evidence to determine whether a factual dispute exists, "credibility determinations are not part of the summary judgment analysis." Id. To the contrary, "in reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party, as well as that evidence supporting the moving party that is uncontradicted and unimpeached." Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir.2001).
According to the plaintiffs complaint, on or about July 11, 2008, plaintiff was employed by third party Offshore Services of Acadiana, L.L.C. ("OSA")
On November 12, 2008, plaintiff filed suit against W & T and Baker pursuant to the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331 et seq., and Article 2315 of the Louisiana Civil Code for negligence for failure to provide plaintiff with a safe place in which to work; failure to comply with any and all applicable safety standards including but not limited to those enumerated by OSHA; failure to exercise reasonable care in discovering and correcting any and all unsafe conditions existing on the premises; failure to properly inspect, maintain, and repair the premises; strict and/or premises liability; hiring untrained and unskilled employees; failure to properly train employees; retaining employees found to be careless and/or unskilled; failure to provide competent and adequate supervisory authority; failure to warn plaintiff of the dangerous and unsafe condition of the premises; breach of legally imposed duties of reasonable care owed by the defendants to the plaintiff; and other acts of negligence and conditions to be proven at trial.
In their motions for summary judgment, W & T and Baker set forth certain undisputed facts. As part of his response to the motions for summary judgment, plaintiff submitted a filing entitled "Statement of Material Facts to Which There is No Genuine Issue to be Tried." However, review of plaintiff's Statement of Facts shows it does not controvert the "undisputed" facts as set forth by defendants in their Statements of Facts. Rather, plaintiff merely lists the nine legal factors comprising the borrowed employee analysis as set forth in Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969), and for each legal factor, inserts the words "whether W & T," "whether plaintiff," or "whether or not" as a lead in to each factor. Specifically, plaintiff does not provide any evidence with respect to the underlying facts as they relate to the Ruiz factors, nor does plaintiff provide any evidence to specifically controvert the evidence submitted by W & T and Baker. Consequently, the facts as asserted by defendants in their motions are deemed undisputed.
Considering the foregoing, the following facts are deemed undisputed by the parties:
In the motions before the Court, W & T and Baker contend there are no genuine issues of material fact that both plaintiff and Mr. Chatelain were the borrowed employees of W & T and, therefore, were co-employees vis-a-vis each other and W & T. Therefore, defendants contend the exclusive remedy provisions of the LHWCA (applicable by virtue of OCSLA) bar any potential tort-based recovery on the part of plaintiff against either W & T or Baker.
Federal jurisdiction in this matter is based on OCSLA, 43 U.S.C. § 1331 et seq. "OCSLA adopts the law of the adjacent state (Louisiana) as surrogate federal law, to the extent that it is not inconsistent with other federal laws and regulations." "Thus the law applicable is `federal law, supplemented by state law of the adjacent state.'" Fruge v. Parker Drilling Co., 337 F.3d 558, 560 (5th Cir.2003) (citations omitted); see also 43 U.S.C. § 1333(a)(2)(A).
Pursuant to OCSLA, the LHWCA, 33 U.S.C. § 901, et seq., is the law applicable to provide an injured offshore worker compensation benefits. If plaintiff is found to be the borrowed employee of W & T, then he is covered by the LHWCA, entitling him to worker's compensation under this Act. Worker's compensation under the LHWCA is the exclusive remedy for an employee against his employer because the LHWCA bars all common law tort actions against the employer, and W & T was plaintiffs employer if plaintiff was W & T's borrowed employee. See 33 U.S.C. § 905(a);
If the LHWCA applies, it preempts "the application of the idiosyncrasies of the Louisiana Workers' Compensation scheme." Perron v. Bell Maintenance and Fabricators, Inc., 970 F.2d 1409, 1411 (5th Cir.1992). However, as this Court explained in Lemaire v. Danos & Curole Marine Contractors Inc., 265 F.3d 1059, 2001 WL 872840 (5th Cir.2001) (as affirmed by the Fifth Circuit), outside of the Workers' Compensation arena, OCSLA makes the tort law of the adjacent state surrogate federal law and thus applicable to any tort-based cause of action for those offshore injuries. See 43 U.S.C. § 1381, et seq. As this Court stated in Lemaire:
W & T and Baker argue plaintiff and his supervisor, Mr. Chatelain, are both borrowed employees of W & T, and thus, plaintiff cannot sue either W & T or Baker in tort. Rather, defendants contend, in their separate motions, plaintiffs exclusive remedy is compensation benefits under the LHWCA. If both plaintiff and Mr. Chatelain are the borrowed employees of W & T and, are therefore, co-employees, plaintiff cannot sue his co-employee or his co-employee's nominal employer, Baker, for the reasons set forth in more detail hereinbelow. See Perron, 970 F.2d at 1411.
A borrowed servant becomes the employee of the borrowing employer, Standard Oil v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909), and "is to be dealt with as the servant of the [borrowing employer] and not of the [nominal employer]." Denton v. Yazoo & M.V. Railway Co., 284 U.S. 305, 52 S.Ct. 141, 76
Id., citing Brown v. Union Oil Co. of California, 984 F.2d 674, 676 (5th Cir. 1993). The Fifth Circuit "has held many times that no single factor is determinative." Id. at 106. However, the court has also stated the first factor is the "central issue" of borrowed employee status, Melancon v. Amoco Production Co., 834 F.2d 1238, 1245 (5th Cir.) amended, 841 F.2d 572 (1988). In other cases, the Fifth Circuit has stressed the importance of the fourth, fifth, sixth, and seventh factors of borrowed employee status. See Id., n. 12.
This Court will now apply the facts of the instant case to each of the nine factors that must be considered in order to decide whether plaintiff and Mr. Chatelain are the borrowed employees of W & T. Although W & T and Baker advance similar arguments and have essentially joined in each other's motions, the defendants seek very different relief. Therefore, in order to analyze the relief requested by each defendant, the Court will address the motions separately.
W & T argues plaintiff is its borrowed employee, and therefore, plaintiffs exclusive remedy vis-a-vis W & T is under the LHWCA for compensation benefits. The Court will analyze each Ruiz factor to determine whether plaintiff is the borrowed employee of W & T.
To determine who has control over the employee, the Court is required to distinguish "between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking." Ruiz, 413 F.2d at 313, quoting Standard Oil Co. v.
The evidence presented by W & T in the form of the sworn declaration of Nick Champagne and the deposition testimony of the plaintiff establishes that other than instructing the plaintiff to report to the W & T platform for work, OSA did not control the plaintiffs day-to-day work activities aboard W & T's platform. Rather, plaintiffs work schedule on the platform was set and exclusively supervised by W & T personnel. Plaintiff referred to his W & T supervisors as his "bosses" and admitted he did not have any OSA supervisory personnel working with him offshore. Plaintiffs duties included preparing W & T's meals, ordering W & T's food, cleaning W & T's galley, and cleaning W & T's bunkhouse. W & T contends W & T gave plaintiff all of his work instructions concerning the performance of these job duties, and plaintiff was required to, and did, follow the instructions W & T personnel gave him.
Plaintiff argues as a skilled cook who knew the tasks he would be required to perform on the platform, only he controlled what he cooked and how he cooked it. Thus, plaintiff contends he controlled his own work according to the instructions he received from is OSA employer, arguing "[t]he instructions he received from OSA presumably comported with what OSA agreed to do in a contract for services with W & T."
District courts interpreting the control factor as set forth by the Fifth Circuit have rejected the argument advanced by plaintiff. For example, in Magnon, the district court stated:
Magnon, 2007 WL 2736612, *3-4 (internal citations omitted) (emphasis added). See also Baker v. Chevron USA, Inc., 1993 WL 8300 (E.D.La.1993) (J. Arceneaux) ("close
In the instant case, once he was on W & T's platform, plaintiff performed W & T's work and was under the direct control and supervision of W & T's employees. No OSA employees were aboard the platform during any of plaintiffs hitches, and there is no competent evidence to suggest OSA, in any way, actually maintained control of the plaintiff. Although plaintiff chose what meals to cook and ordered his food and ingredients accordingly, plaintiff admitted he tried to accommodate the W&T personnel whenever possible in that regard. Additionally, W&T directed when meals were to be served. In fact, plaintiff alleges he was injured while asking the W & T personnel what time they wanted a meal served. The record shows plaintiff had very little contact with OCS while aboard the platform (by plaintiffs own estimation, he contacted OCS approximately 4 times in 22 days).
Plaintiffs argument that he was not required to attend W&T safety meetings—which he argues might have established a degree of control over the plaintiff—is similarly unavailing. Safety meetings are typically required for individuals performing the work of the platform; plaintiff was preparing meals in the galley and cleaning the bunkhouse. Moreover, plaintiff admits he frequently attended these meetings voluntarily. Nevertheless, even if plaintiff had not attended safety meetings, considering the other evidence concerning the control issue, the lack of requirement to attend W&T safety meetings would not negate W & T's control over the plaintiff in this case.
Considering the foregoing, this Court concludes the control factor weighs in favor of borrowed employee status in this case.
Although plaintiff argues there are genuine issues of material fact regarding whose work he was performing aboard the platform, plaintiff presents no evidence to support this assertion, other than the affidavit of Nick Champagne, W & T's production supervisor, who attested his job responsibilities included "production supervisor and monitoring of oil, natural gas, mineral operations in the subject field, the coordination and orchestration of maintenance activities on the platforms and wells in the subject filed." Plaintiffs argument appears to be that because Mr. Champagne did not list "cooking" or "cleaning" as one of his job responsibilities, then "cooking" and/or "cleaning" could not have been part of W & T's work. Plaintiff also argues he was primarily serving OSA's purposes by doing the work OSA had obligated itself to do under its contract with W&T.
Plaintiffs argument is strained. While it certainly was in OSA's interests that the plaintiff perform the work W&T assigned him to do, inasmuch as W & T would continue to utilize OSA's services if satisfactory work was provided, this Court finds plaintiff was hired to prepare meals and clean the platform for the support staff working aboard the platform while it was being sandblasted and painted. This is indisputably the "work" of W & T. Notably, as pointed out by W & T, plaintiff does not argue he was doing the work of OSA.
Considering the foregoing, the Court concludes this factor weighs heavily in favor or borrowed employee status.
In its motion, W&T argues there was an understanding between W&T and
In its reply brief, W&T addresses and attaches the Master Service Agreement ("MSA") between OSA and W&T. Section 3 of the MSA states OSA is an independent contractor and that neither OSA nor its employees are "servants, agents, or employees of W & T." However, notwithstanding the express language of the MSA, courts have found contract provisions similar to the one at issue here do not prohibit a finding of borrowed servant status where the workplace realities are otherwise. Indeed, the Fifth Circuit has held the terms of the contract between the borrowing employer and payroll employer do not ordinarily provide a sufficient basis to deny summary judgment when the remaining Ruiz factors point toward borrowed servant status. 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). Thus, the parties' actions in carrying out the contract can impliedly modify or waive the express provision. Brown v. Union Oil Co. of California, 984 F.2d 674, 678 (5th Cir.1993), citing Melancon, 834 F.2d at 1245.
The Fifth Circuit has addressed contractual provisions similar to the one at issue here in other cases. See, e.g., Melancon, 834 F.2d at 1245 & n. 13; West v. Kerr-McGee Corp., 765 F.2d 526, 528, 531 (5th Cir.1985); Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 377-78 (5th Cir.1985); Dugas v. Pelican Construction Co., 481 F.2d 773 (5th Cir.1973). But cf. Alexander v. Chevron, U.S.A., 806 F.2d 526, 528 (5th Cir.1986) (distinguishing Alday and West by noting that the contract provision did not explicitly prohibit plaintiff from becoming a borrowed employee). In Alday, the Court addressed the issue as follows:
Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 379 (5th Cir.1985).
In the instant case, all of the factors other than the contract factor favor borrowed employee status, except for the length of employment factor, which this Court considers to be a neutral factor. The evidence presented to the Court shows plaintiff was performing the work of W & T while on the platform and was supervised by W & T and/or Baker personnel. Thus, this Court concludes the parties' actions in carrying out the OSA/W & T
The focus of this factor is whether the employee was aware of his work conditions and chose to continue working in them. See Brown v. Union Oil Co. of California, 984 F.2d 674, 678 (5th Cir.1993), citing Melancon, 834 F.2d at 1246. In Brown, the court noted the plaintiff worked, slept, and ate in the purported borrowing employer's field for one month prior to his accident. Noting many cases affirming borrowed servant status have involved longer periods of work, the court concluded one month was a sufficient amount of time for the plaintiff to appreciate the new work conditions.
Similarly, in the instant case, the plaintiff worked, slept, and ate on W & T's platform for a period of approximately 22 days prior to his accident. This Court concludes this 22-day period is a sufficient amount of time for the plaintiff to appreciate, and acquiesce in, his new work conditions. Therefore, the Court concludes this factor favors borrowed employee status.
It is well-settled a finding of borrowed employee status does not require that the lending employer completely sever its relation with the employee. Magnon, 2007 WL 2736612 at *5, citing Melancon, 834 F.2d at 1238; Capps, 784 F.2d at 617-8. The focus, instead, is on the lending employer's relationship with the employee while the borrowing occurs. Capps, 784 F.2d at 617-8. Brown, 984 F.2d at 678-79, citing Melancon, 834 F.2d at 1246. In Brown, the plaintiff worked two hitches for the purported borrowing employer. On the second hitch, the evidence showed plaintiffs work was unsupervised. However, on his first hitch, the evidence showed plaintiffs nominal employer supervised his work. The court held this factor did not overwhelmingly favor borrowed employee status. Brown, 984 F.2d at 679.
In the instant case, plaintiff argues he called OSA "just about every week" while he worked on W & T's platform, and OSA "maintained a degree of authority over plaintiff" while he was aboard the platform. However, despite plaintiffs argument, plaintiff has presented no evidence showing OSA actually supervised plaintiffs work on the platform. It is undisputed plaintiff was the only individual on the platform affiliated with OSA. Additionally, although plaintiff argues OSA "retained authority `to check on him' and instruct him in the performance of his work," plaintiffs only evidence supporting this argument is his self-serving deposition testimony. Yet even plaintiff's testimony does not support a supervisory relationship while the borrowing was occurring, to wit:
[Robertson Deposition, p. 233].
Thus, it appears plaintiff contacted OSA to report his time sheets. Additionally, according to plaintiff, OSA called to check on him to make sure everything was going well on the job and that W & T's needs were being met. The foregoing does not evidence a supervisory relationship between OSA and the plaintiff while the plaintiff was aboard W & T's platform. Considering the foregoing, the Court concludes this factor favors borrowed employee status.
Other than the plaintiffs argument that the main tools of his trade are his hands, it is undisputed the tools and place for performance for plaintiffs work were furnished by W & T. W & T provided the transportation for plaintiff to get from shore to the platform and back again; W & T provided all the food the plaintiff ate and the accommodations in which he slept while working on the platform; W & T provided all of the equipment, appliances, and tools used by the plaintiff in performing his work, and W & T provided all the raw food the plaintiff prepared as steward/cook, as well as all condiments, cooking oil, and other ingredients used in preparing the meals.
Plaintiffs argument that his hands—and his knowledge—are his most important tools and were provided by plaintiff himself is unpersuasive. Considering the foregoing, this Court concludes this factor weighs heavily in favor of borrowed employee status.
"Where the length of employment is considerable, this factor supports a finding that the employee is a borrowed employee." Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 618 (5th Cir.1986) (but specifically finding this factor was neutral where injury occurred on plaintiffs first day of work), cited in Hotard v. Devon Energy Corp., L.P., 2008 WL 2228922, *5 (W.D.La.2008) (J. Melancon) (finding eleven months weighed "in favor of finding for borrowed employee status."). See also Williams v. Arco Oil & Gas, Inc., 1990 WL 178722 (E.D.La.1990) (J. Feldman) (finding six months a "significant length of time"). But see U.S. Fire Ins. Co. v. Miller, 381 F.3d 385, 390 (5th Cir.2004) (stating it is "debatable whether approximately a year and a half is a "considerable" length of time," but nevertheless finding district court was correct in determining a year and a half weighs in favor of finding for borrowed employee status). Notwithstanding the foregoing, the Fifth Circuit has previously found borrowed servant status when the employee's injury occurred on the first day of the job. See Champagne v. Penrod Drilling Co., 341 F.Supp. 1282 (W.D.La.1971) (J. Hunter), aff'd. per curiam, 459 F.2d 1042 (5th Cir. 1972). Additionally, the Fifth Circuit has specifically held one-month period is neutral. See, e.g., Brown, 984 F.2d at 679.
In the instant case, plaintiff worked on W & T's platform from June 20, 2008 through July 12, 2008, a period of 22 days, under the arrangement and the capacity previously discussed. W & T contends that, but for his injury, plaintiff intended to work a period of 30 days before taking a break. Additionally, WA & T contends the plaintiff intended to return to the platform to work on a 21-day-on, 7-day-off scheduled after the completion of his 30-day hitch. W & T contends the plaintiff understood the job with W & T would last a long time. Plaintiff argues 22 days makes this factor "at best neutral."
The plaintiff testified at his deposition W & T had the right to discharge him from its operations on the platform if he violated platform rules or policies, to wit:
[Robertson Deposition, pp. 246-47].
Plaintiff admits as much in his opposition brief, stating "if [W & T] had been unhappy with his work performance, they could have discharged him." Plaintiff argues, however, that W&T could not have terminated his employment with OSA. However, termination of plaintiffs employment with his nominal employer is not the focus of this factor. Rather, where the borrowing employer (here, W&T) has the right to terminate the borrowed employee's services with the borrowing employer, even though the borrowing employer does not have the right to terminated the borrowed employee's position with the nominal employer (here, OSA), the right to discharge factor is satisfied. See, e.g., Hotard v. Devon Energy Corp., L.P., 2008 WL 2228922 at *5, citing Melancon, 834 F.2d at 1246 ("[the purported borrowing employer's] right to terminate [plaintiffs] services in [the borrowing employer's field] satisfied this requirement."). See also Magnon, 2007 WL 2736612 at *7 ("This arrangement is sufficient to support a finding of borrowed employee status."), citing Brown, 984 F.2d at 679. Considering the foregoing, the Court concludes this factor favors borrowed employee status.
Plaintiff admitted at his deposition he completed time tickets for the work he performed, which were then submitted to his W & T supervisor for review, approval, and verification. After the W&T supervisor approved the time tickets, the tickets were forwarded to OSA for further processing, including billing to W & T. While OSA ultimately issued plaintiffs paycheck, OSA would bill W & T for plaintiffs time. This arrangement has been held to support a finding of borrowed employee status in other cases. See Magnon, 2007 WL 2736612, citing Melancon, 834 F.2d at 1246; Billizon, 993 F.2d at 105-06; Capps, 784 F.2d at 618. Therefore, this Court concludes this factor weighs heavily in favor of borrowed employee status.
Considering the foregoing, after review of the Ruiz factors, this Court concludes all factors weigh in favor of borrowed employee status except one—length of employment. Therefore, considering the evidence presented to this Court, the Court
Baker argues Raymond Chatelain, Jr., the Baker employee who supervised plaintiff onboard the W & T platform, was also a borrowed employee of W & T. As such, Baker contends plaintiff and Mr. Chatelain were "co-employees" vis-a-vis each other and W & T, and therefore, pursuant to the LHWCA, Mr. Chatelain and Mr. Chatelain's nominal employer, Baker, is immune from tort liability as to any negligence on Mr. Chatelain's part. Therefore, Baker seeks dismissal of plaintiffs claims against it on grounds both plaintiff and Mr. Chatelain were the borrowed employees of their common borrowing employer, W & T, and therefore Baker is immune from tort liability and any alleged negligence on the part of Mr. Chatelain allegedly causing the injury of the plaintiff.
In his opposition brief, plaintiff does not address the separate grounds for relief urged by Baker. That is, plaintiff makes no attempt to contest the status of Mr. Chatelain as a borrowed employee of W & T. Plaintiff has provided no evidentiary assertions contesting the arguments of Baker, nor does plaintiff even argue that Mr. Chatelain is not a borrowed employee of W & T.
The Supreme Court has instructed "[t]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Where no such showing is made, "[t]he moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."" Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In the instant case, plaintiff has failed to make a showing sufficient to establish the existence of an element essential to plaintiffs case against Baker, and on which plaintiff will bear the burden of proof at trial. Specifically, plaintiff fails to put forth any evidence contradicting the declarations of Mr. Chatelain and Mr. Champagne, in which both men assert Mr. Chatelain was a borrowed employee of W & T, along with the plaintiff. Furthermore, the Ruiz factors appear to favor borrowed employee status on the part of Mr. Chatelain. Considering the foregoing, this Court concludes Mr. Chatelain was the borrowed employee of W & T.
This Court now has two issues remaining to determine: 1) whether plaintiff and Mr. Chatelain, each found by this Court, individually, to be borrowed employees of W & T, were persons "in the same employ" as defined by the LHWCA at the time of plaintiffs alleged accident, and therefore, immune from tort suit against one another; and 2) if plaintiff and Mr.
This Court exhaustively discussed the Perron decision in Lemaire, as follows:
Lemaire, 265 F.3d 1059, citing Perron, 970 F.2d at 1412 (citations omitted).
This Court has already concluded both plaintiff and Mr. Chatelain were the borrowed employees of W & T. Pursuant to Perron and the findings of this Court, the Court concludes plaintiff and Mr. Chatelain were "persons in the same employ" under § 933(i), and, therefore, co-employees of W & T at the time of plaintiff's alleged accident.
970 F.2d at 1412.
Pursuant to the Court's reasoning in Perron, this Court must next address the issue of whether plaintiff can bring a respondeat superior action against Baker, Mr. Chatelain's nominal employer. In Perron, the Fifth Circuit stated bringing such an action against a co-employee's nominal employer would not be consistent with the LHWCA's comprehensive scheme. Id. Thus, the Fifth Circuit states, the plaintiff is barred from bringing this respondeat superior action. Id. Accordingly, this Court concludes to allow plaintiff to bring a respondeat superior action against Baker, Mr. Chatelain's nominal employer, would not be consistent with the LHWCA's comprehensive scheme. Therefore, plaintiff is barred from bringing his claims against Baker.
Although no party addresses the following issue specifically, this Court notes plaintiffs claims against both W & T and Baker are brought pursuant to OCSLA and "under the law and statutes of the State of Louisiana, including but not limited to C.C. Arts. 2315, et seq ..." In Perron, the plaintiff contended Louisiana tort law governed his suit against his co-employee's nominal employer, defendant Bell, under the OCSLA. The Fifth Circuit addressed the plaintiffs OCSLA argument and held "[s]ection 933(i) provides that LHWCA payments `shall be the exclusive remedy to an employee when he is injured... by the negligence or wrong of any other person or person in the same employ.' State law is therefore, preempted by § 933(i) in this instance." Perron, 970 F.2d at 1413-14.
In the case sub judice, plaintiff sets forth Louisiana state law as the governing law regarding third party negligence and damages, pursuant to OCSLA. However, in Perron, the Fifth Circuit found Louisiana law regarding third party negligence and immunity to be inconsistent with § 933(i) as it applied to the plaintiffs action against his co-employee's nominal employer. Id. Therefore, this Court finds Louisiana law regarding third party negligence and immunity to be preempted here as well. Therefore, § 933(i) applies and precludes the application of any Louisiana tort law principles to plaintiffs action against Baker.
Considering the foregoing, and it appearing that Baker's motion for summary judgment is well-grounded in law and fact, IT IS ORDERED that Baker's motion for summary judgment [Doc. 15] is GRANTED, and all claims asserted by plaintiff against Baker are DENIED AND DISMISSED WITH PREJUDICE.
For the reasons stated herein,
IT IS ORDERED that W & T's motion for summary judgment [Doc. 16] is GRANTED, and plaintiffs tort-based claims asserted against W & T in this lawsuit are DENIED AND DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Baker's motion for summary judgment [Doc. 15] is GRANTED, and all claims asserted by plaintiff against Baker are
136 F.3d at 458. See also Cordova v. City of Mansfield, 2006 WL 2513923, *6 (W.D.La. 2006) (where plaintiff did not identify any specific evidence in the record to dispute the defendant's statement of fact, district court deemed fact admitted by plaintiff, citing Fifth Circuit jurisprudence and local rules of court).
See also Local Rule 56.2, which states:
33 U.S.C. § 905(a).
33 U.S.C. § 933(i).
