KEITH P. ELLISON, District Judge.
Pending before the Court is Defendant Maritech Resources, Inc.'s Motion for Summary Judgment. For the following reasons, Defendant's Motion, Doc. No. 61, is
Plaintiff was employed by Dynamic Industries, Inc. ("Dynamic") as a welder/rigger/fitter to perform work on the Maritech High Island A 560 stationary platform off the coast of Galveston in the Gulf of Mexico. Two members of the Dynamic crew, Plaintiff and his brother Jonathan, worked on the platform, but at night slept on a boat, the RMS Atlantis, operated by Ryan Marine Services, Inc. ("Ryan Marine"). On March 22, 2006, Plaintiff was changing out grating and handrails on the platform. Around 10:30 p.m., Plaintiff's supervisor told him it was time to leave the platform, and advised Plaintiff he was going to get the crane operator to transfer Plaintiff and his brother to a work boat, the RMS Atlantis, via Billy Pugh basket.
Plaintiff subsequently brought suit against Maritech, Ryan Marine, Baker/MO, Williams, and others. (Pl.'s Fourth Am. Compl., Doc. No. 56.) This Court has jurisdiction over the lawsuit in admiralty pursuant to 28 U.S.C. § 1333.
Maritech was the owner and operator of the platform. Maritech has a mineral lease with the federal government for production of petroleum at the platform.
Plaintiff's employer, Dynamic, contracted with Maritech to repair damage to the platform caused by Hurricane Rita. A Master Service Agreement between Dynamic and Maritech states that Dynamic was an independent contractor. (Doc. No. 61, Dynamic Master Serv. Agree., Sec. 6 ("Contractor shall be an independent contractor as to all Work. Company shall have no control or direction over Contractor or Contractor's employees ... Company being only interested in the results obtained.").) Section 8 of the Dynamic Master Service Agreement, entitled "Safety," also provides:
(Doc. No. 61, Dynamic Master Serv. Agree, Sec. 8.)
Maritech also contracted with Defendant Baker/MO to provide operating services, including the provision of a crane operator. Baker/MO and Maritech also had a Master Service Agreement stating that Baker/MO was an independent contractor. (See, e.g., Doc. No. 61, Ex. A, p. 19-23; Depo. Ex. 3; Baker/MO Master Serv. Agree, Sec. 6 ("Contractor shall be an independent contractor as to all work. Company shall have no control or direction over Contractor or Contractor's employees and its subcontractors and their employees. Company being only interested in the results obtained.").) Section 8 of the Agreement, entitled "Safety," provides:
(Doc. No. 61, Baker/MO Master Serv. Agree, Sec. 8.)
Maritech also contracted with Offshore Oil Services (OOS) to subcharter the RMS Atlantis. Defendant Ryan Marine operated the crew boat that Plaintiff was attempting to board at the time of the accident.
A motion for summary judgment under Federal Rule of Civil Procedure 56 requires the Court to determine whether the moving party is entitled to judgment as a matter of law based on the evidence thus far presented. FED. R. CIV. P. 56(c). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.2001) (quotations omitted). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). The Court views all evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Id. Conclusory allegations, unsubstantiated assertions, and unsupported speculation are not competent summary judgment evidence. See, e.g., Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (noting that a
Defendant Maritech contends that it cannot be held liable as a property owner for personal injury to an independent contractor under Section 95 of the Texas Civil Practice and Remedies Code. Plaintiff contends that Section 95 does not apply to this case because Plaintiff was off premises when injured and completed work, and that even if Section 95 does apply, Maritech may be held liable for his injuries. Plaintiff also argues that Maritech is liable for Gregg William's actions based on a theory of non-delegable duty.
Parties agree that the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331, applies to this case. Under OCLA the law of the adjacent state—in this case, Texas—applies unless state law is inconsistent with federal law or regulations. 43 U.S.C. § 1333. The Southern District of Texas has clarified that for adjacent state law to apply under OCSLA: "(1) the controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto); (2) federal maritime law must not apply of its own force; and (3) the state law must not be inconsistent with federal law." Franks v. Chevron Corp., No. 3:06-cv-506, 2007 WL 2330296, at *1 (S.D.Tex. Aug. 13, 2007) (citing Union Tex. Petroleum Corp. v. PLT Eng'g, 895 F.2d 1043, 1047 (5th Cir.1990)).
Here, parties do not dispute that the platform constitutes a situs covered by OCSLA. See also Franks, 2007 WL 2330296 at *3 ("[T]he situs rule will be satisfied if, at the time of the injury, the worker was in physical contact with the platform or some appurtenance thereto.") (citing Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1527 (5th Cir.1996).) Nor does either party contend that federal maritime law applies of its own force. Although Plaintiff discusses Occupational Safety and Health Standards (OSHA) and the Mineral Management Services (MMS) regulations at length in support of his non-delegable duty theory, he does not argue that Chapter 95 of the Texas Civil Remedies and Procedure Act is inconsistent with federal law. See also Franks, 2007 WL 2330296 at *4 (finding that Chapter 95 was not inconsistent with federal law).
Prior to the passage of Chapter 95, Texas common law controlled premises liability claims brought by an injured independent contractor who was performing work for a premises owner or contractor. See Arsement v. Spinnaker Exploration Co., LLC, 400 F.3d 238, 244 (5th Cir.2005). Under Texas common law, "[t]he general rule is that an owner . . . does not have a duty to see that an independent contractor performs work in a safe manner." Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). A property owner or contractor "was liable [under Texas common law] for negligent activity only if it controlled the independent contractor's methods of work and failed to take reasonable care for such control." Id. (emphasis in original) (citing Redinger, 689 S.W.2d at 418).
In 1996, the Texas legislature passed Chapter 95 of the Texas Civil Practice and Remedies Code as part of a broader "tort reform" effort. See, e.g., Arsement, 400 F.3d at 245; Spears v. Crown Central Petroleum Corp., 133 Fed.
TEX. CIV. PRAC. & REM.CODE § 95.003. Chapter 95 therefore codifies the holding in Redinger regarding control, but modifies the common law approach by protecting the property owner from liability unless it has actual knowledge of the dangerous activity resulting in the injury and fails to adequately warn of the danger. Arsement, 400 F.3d at 245; see also Phillips v. The Dow Chemical Co., 186 S.W.3d 121, 132 (Tex.App.-Houston [1 Dist.] 2005).
Plaintiff argues that Chapter 95 does not apply to his claim because he was injured when he was off the clock and off the Maritech premises.
Chapter 95 applies only to a claim:
TEX. CIV. PRAC. & REM.CODE § 95.002. The defendant bears the burden of showing that Chapter 95 applies to a plaintiff's claim. See Jones v. Apache Corp., No. 05-499, 2007 WL 656268, at *2 (S.D.Tex. Feb. 27, 2007). Chapter 95 applies to both premises defect claims and to negligent activity claims. Arsement, 400 F.3d at 249 (citing Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 84 (Tex.App.-Houston [1st Dist.] 2003, no pet.)). Although the Texas Supreme Court has not yet considered a Chapter 95 case, Texas Courts of Appeal have construed Chapter 95 broadly. See Spears, 133 Fed.Appx. at 131.
Despite the language of Section 95.002 requiring that the claim "arise[ ] from the condition or use of an improvement to real property," Texas courts have applied Chapter 95 even where the defective condition or activity leading to the injury was not the direct object of the independent contractor's work. In Fisher v. Lee and Chang Partnership, the Appeals Court noted that "[t]he statute does not require that the defective condition be the object of the contractor's work," and applied Chapter 95 where the appellant was injured while using a "ladder to reach the roof to perform his job, the repair of air conditioning units." 16 S.W.3d 198, 201 (Tex.App.-Houston [1 Dist.] 2000). The Fisher court additionally noted that the ladder "provided appellant a means to reach his work site. It was not the object of his work. Nevertheless, appellant's injuries arose from `the failure to provide a safe workplace.'" 16 S.W.3d at 202 (citing Tex. Civ. Prac. & Rem.Code § 95.003).
Id. at *2. Unlike the case before the Court, in both Clark and Fisher, however, the injured party was engaged in the performance of his work and was on the property owner's premises.
At least one federal District Court has held that Chapter 95 applies to a claim, even though the plaintiff was not on the property owner's premises at the time he was injured. In Franks v. Chevron, the plaintiff was providing maintenance on a platform. No. 3:06-cv-506, 2007 WL 2330296, at *1 (S.D.Tex. Aug. 13, 2007). The plaintiff was ordered to transfer to a vessel located alongside the platform to "rig up a container on the vessel in order to offload it to the platform." While on the adjacent vessel, plaintiff slipped while climbing off the container, and fell onto the deck, sustaining injuries. Id. The Southern District of Texas rejected plaintiff's argument that Chapter 95 did not apply to his claims against the platform owner because his injury was not sustained on the platform itself, and instead found that the vessel was "merely an extension of the premises." Id. at *6. The court explained:
Id. (internal citations omitted). Notably, however, the Franks court emphasized that the plaintiff was injured while he was actually performing work related to modification of the improvement. Id.
The Court is unaware of any Texas case applying Chapter 95 to an injury sustained where the plaintiff was no longer performing any work nor was located on the premises. Spears v. Crown Central Petroleum, an unpublished Fifth Circuit case, comes the closest to reaching such a conclusion. In Spears, the court found that Chapter 95 applied where an independent contractor tripped on steel-braided hoses lying across
Although there is no precedential case directly on point, the Court finds that the application of Chapter 95 is appropriate in this case. Both the Southern District of Texas and the Fifth Circuit, albeit in non-precedential opinions, have emphasized the broad reading of Chapter 95 by the Texas appellate courts. Although Plaintiff was not working on the improvement at the time of his injury, the crane and Billy Pugh basket provided him with a "means to reach his worksite," as did the ladder in Fisher.
In order for a property owner to be liable to an independent contractor, the property owner must: 1) exercise "some control over the manner in which the work is performed;" 2) have "actual knowledge of the danger or condition" resulting in the injury; and 3) fail to adequately warn. Tex. Civ. Prac. & Rem.Code § 95.003.
Maritech argues that it may not be held liable under Chapter 95 because it had no contractual right to control nor did it exercise actual control over the operation of the crane and personnel basket. Plaintiff argues that there is at least a genuine issue of material fact as to whether Maritech controlled the personnel basket transfer.
In Redinger, the Texas Supreme Court adopted the Second Restatement approach to determining whether a property owner owes a duty to an independent contractor. 689 S.W.2d at 418. Several Texas appellate courts have acknowledged that Section 95.003(1), regarding control, is simply a codification of this holding in Redinger. See, e.g., Phillips v. The Dow Chemical Co., 186 S.W.3d 121, 132 (Tex.App.-Houston [1 Dist.] 2005).
A property owner "can retain the right to control an aspect of an independent contractor's work so as to give rise to a duty of care to that independent contractor's employees in two ways: by contract or by actual exercise of control." Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778,
In order for such a duty to arise, the property owner's "right of control must not merely be general or supervisory but must extend to the `operative detail' of the contractor's work so that the contractor is not free to do the work in its own way, and to the injury-producing activity itself." Id. at 792. "The right to control must be more than a general right to order work to stop and start, or to inspect progress." Coastal Marine Service of Texas, Inc. v. Lawrence, 988 S.W.2d 223 (Tex.1999); see also Tex. Civ. Prac. & Rem.Code § 95.003(1); Redinger, 689 S.W.2d at 418 (citing RESTATEMENT (SECOND) OF TORTS § 414, cmt. c). The Texas Supreme Court further clarified in Dow Chemical v. Bright:
89 S.W.3d 602, 607 (Tex.2002); see also Arsement, 400 F.3d at 252.
In this case, the relevant contracts provide Maritech with no right to control its independent contractors' work. The Court's inquiry is therefore specifically directed to whether Maritech actually controlled the injury-producing activity, i.e., the transfer of Plaintiff via Billy Pugh basket to the RMS Atlantis.
Defendant argues that Maritech exercised no actual control over the basket transfer. It is undisputed that Gregg Williams, a Baker/MO employee, was operating the crane that transferred Plaintiff from the platform to the RMS Atlantis. The parties also concede there were no Maritech personnel on the platform at the time of the accident. Nor is there any argument that Maritech in any other way controlled Plaintiff's entry and exit from the platform, or that Maritech controlled the manner in which Plaintiff himself conducted his work. Plaintiff admits that he took his job directions and instructions from Dynamic supervisors or occasionally the Baker/MO lead operator. Plaintiff's own supervisor instructed him it was time to leave for the day and went to get the Baker/MO crane operator to make the crane transfer.
Williams testified that, as lead operator, he was "responsible for the production, maintaining the maintenance, and the compliance, the logistics" and "everything that goes on on the platform." (Doc. No. 61, Ex. E.) Williams had been trained on how to operate the crane during a personnel basket transfer, but there is no allegation that this training was provided by Maritech. (Id.) Williams was paid by Baker/MO and Baker/MO provided him with a written job description setting forth his duties and responsibilities as lead operator. (Id.)
According to Plaintiff, Maritech is required to designate a "person in charge" at each facility under the relevant MMS regulations. As "lead operator," Williams was the "person in charge" of the Platform. Russell Steiner, the Maritech safety and compliance superintendent, testified that Maritech delegated safety of the workplace
None of Maritech's safety procedures specifically proscribe the manner in which personnel basket transfers are to be made or the weather conditions that would warrant cancellation of a transfer. (See Doc. No. 61, Ex. A, 44-45.) Plaintiff emphasizes, however, that Maritech was aware of several accidents involving crane and personnel basket transfers, and had issued a Maritech Safety Alert to persons in the offshore field about this problem. (Doc. No. 62, Ex. 18, at 105-06; 112-14; Doc. No. 62, Ex. 21.)
Plaintiff additionally provides some evidence as to Maritech's control over Williams' activities in areas unrelated to safety. Plaintiff points out, for example, that Williams did production reports on Maritech forms. (Doc. No. 62, Ex. 14, 17-18.) Plaintiff additionally points out that Williams approved and signed time tickets of subcontractor Dynamic. (Id. at 58-60; Doc. No. 62, Ex. 24.) Williams did testify that he had daily, weekly, and monthly assignments that came from Baker/MO and Maritech. (Doc. No. 61, Ex. E, 114.) Williams also testified that Maritech did not ever direct him on the method and manner of doing personnel basket transfers. (Id. at 117.)
Plaintiffs evidence that Maritech required its independent contractors to comply with Maritech safety regulations is not sufficient to establish the kind of control required by Section 95.003. "Merely exercising or retaining a general right to recommend a safe manner for the independent contractor's employees to perform their work is not enough to subject a premises owner to liability." Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999); Arsement, 400 F.3d at 252 (citing Dow, 89 S.W.3d at 607). If a premises owner's control is limited to requiring a subcontractor to comply with the owner's safety regulations, the owner owes the subcontractor's employees only a "narrow duty of care that its safety requirements and procedures do not unreasonably increase the probability and severity of injury." Dow, 89 S.W.3d at 607 (citing Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 358 (Tex.1998)). The narrow duty that arises from requiring a subcontractor to follow an owner's safety regulations has been interpreted to encompass only "a duty that any safety requirements and procedures [the owner] promulgated did not unreasonably increase, rather than decrease, the probability and severity of injury." Hoechst-Celanese Corp., 967 S.W.2d at 358; see also Koch, 11 S.W.3d at 156 (finding that the presence of an owner's
Any other control that Maritech may have exercised over Williams' in terms of production reports or time records appears entirely unrelated to the work that produced plaintiff's injury. Thus, this kind of control would not impose a duty on Maritech under Section 95.003.
Plaintiff relies on the Southern District of Texas' holding in Franks v. Chevron Corp. in support of its argument that these facts are sufficient to create a genuine issue of material fact as to whether Maritech exercised the requisite control over the work that produced the alleged injury. No. 3:06-cv-506, 2007 WL 2330296 (S.D.Tex. Aug. 13, 2007). In Franks, however, there was evidence that the premises owner had directly, and allegedly negligently, instructed the plaintiff to perform the activity that led to his injury. Id. at *1, *7. No such evidence is present in this case.
The Court finds, therefore, that there is no genuine issue of material fact as to Maritech's control over the relevant work. As a result, Plaintiff's claim against Defendant is barred under Section 95.003. Because Plaintiff has failed to establish that Maritech exercised the requisite control over this work, the Court need not reach the question of whether Maritech had actual knowledge of the danger or failed to adequately warn Plaintiff.
Furthermore, because the "control" section of 95.003 codifies the common law requirement set forth in Redinger, Plaintiffs claims against Maritech would fail even if Chapter 95 did not apply in this case.
Plaintiff also argues that Maritech is liable for the actions of Williams because Maritech's duties under the Occupational Safety and Health Standards (OSHA) and the Mineral Management Services (MMS) regulations are non-delegable and because Williams was Maritech's vice-principal.
The Fifth Circuit has already rejected the argument that MMS regulations impose an independent duty on a platform owner to maintain a safe workplace. See, e.g., Fruge Ex. Rel Fruge v. Parker Drilling Co., 337 F.3d 558, 561-64 (5th Cir.
Plaintiffs reliance on Denson v. Diamond Offshore Co. is unavailing. 955 So.2d 730, 735, (La.App. 4 Cir.2007). In Denson, the Court noted that although Fruge held that no cause of action existed under MMS regulations, it "recognized the operational control exception based on Louisiana negligence law as espoused in Coulter" Id. The Denson court then concluded that a fact issue existed as to whether a lease operator maintained operational control over an independent contractor's relevant acts. Id. The Denson court was clearly analyzing the relevant question of control, and not a question of non-delegable duty. To the extent that Denson reached a different conclusion than this Court on the question of control, the Court finds that the facts in Denson differed from those in the present case. The Court further observes that the Denson court was applying Louisiana law regarding any duty that might arises from a property owner or general contractor's requirement that an independent contractor comply with its safety regulations.
The Court finds, therefore, that Maritech did not owe Plaintiff a non-delegable duty to ensure his safety pursuant to the relevant MMR or OSHA regulations, and thus does not reach the question of whether Williams can be considered Maritech's Vice-Principal.
Defendant Maritech's Motion for Summary Judgment, Docket No. 61, is
