In The Matter of Cooper Marine & Timberlands Corporation et al
ORDER granting 121 and 124 motions for summary judgment filed by Temps Plus Inc, and Dawson Employment Service Inc. The third-party complaints filed by Steel Dynamics Columbus, LLC, Logistic Services, Inc., and Cooper Marine & Timberlands Corporation against Temps Plus, Inc., and Dawson Employment Service, Inc., are dismissed with prejudice. Summary judgment is also entered in favor of Kinder Morgan Energy Partners, L.P. Signed by Judge J. Leon Holmes on 6/8/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
IN THE MATTER OF COOPER
MARINE & TIMBERLANDS
No. 3:15CV00170 JLH (LEAD)
as Owner Pro Hac Vice and Operator;
and GATX THIRD AIRCRAFT, LLC,
as Owner of the BARGE CMT 123,
Official No. 1067600
ROBERT L. COLEMAN, Special Administrator
for the Estate of Nicolas Perez Hernandez, and
his Surviving Heirs and Dependents
NO. 3:15CV00225 JLH
COOPER MARINE & TIMBERLANDS
CORPORATION, et al.
KASSANDRA NIEVES, Individually and as
Personal Representative of the Estate of Juan Nieves
and his Surviving Heirs and Dependents
NO. 3:15CV00350 JLH
COOPER MARINE & TIMBERLANDS
CORPORATION, et al.
OPINION AND ORDER
These two wrongful death cases have been consolidated for discovery because the
decedents—Juan Nieves and Nicolas Perez Hernandez—were killed in the same accident while
unloading steel coils from a barge as workers for Kinder Morgan Bulk Terminals, Inc. In addition
to three Kinder Morgan entities, the decedents’ estates have sued the manufacturer of the steel coils,
the company that loaded the steel coils onto the barge, and the company whose tug took custody of
the barges and delivered them to a Kinder Morgan Marine Services fleet terminal in Arkansas. The
defendants other than the Kinder Morgan entities have asserted third-party claims against two
staffing agencies that supplied Nieves and Hernandez to Kinder Morgan. The staffing agencies have
moved for summary judgment. For reasons that will be explained, the motions for summary
judgment filed by the staffing agencies are granted.
I. SUMMARY JUDGMENT STANDARD
A court should grant summary judgment if the evidence demonstrates that there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a
genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L.
Ed. 2d 265 (1986). If the moving party meets that burden, the nonmoving party must come forward
with specific facts that establish a genuine dispute of material fact. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute
of material fact exists only if the evidence is sufficient to allow a reasonable jury to return a verdict
in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986). The Court must view the evidence in the light most favorable
to the nonmoving party and must give that party the benefit of all reasonable inferences that can be
drawn from the record. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence sufficient to establish an essential element
of a claim on which that party bears the burden of proof, then the moving party is entitled to
judgment as a matter of law. Id.
II. UNDISPUTED FACTS
On June 15, 2010, Kinder Morgan1 contacted Temps Plus, Inc., and requested that it supply
a worker as a cutting torch operator. Juan Nieves was then sent by Temps Plus to fulfill that request.
Nieves had applied for employment with Temps Plus on December 7, 2009, and had stated in his
application that he had experience in welding. Similarly, on May 21, 2012, Kinder Morgan2
contacted Dawson Employment Service, Inc., and requested that it provide a cutting torch operator.
Both Nieves and Hernandez remained on the payrolls of the staffing agencies while continuing to
work for Kinder Morgan until the incident that caused their deaths on April 8, 2014.
Kinder Morgan Energy Partners, L.P., acting for itself and its affiliates and subsidiaries,
contracted with the staffing agencies using a form contract that it prepared and sent to the agencies.
The contracts provided that the staffing agencies would provide temporary personnel to Kinder
Morgan with compensation to the staffing agencies based on a schedule of values pertaining to the
work to be completed or accomplished. Kinder Morgan’s agreement with Temps Plus provided for
Kinder Morgan to pay Temps Plus at markup rate of 38% for industrial positions and 44% for
longshore and harbor positions. Dawson charged Kinder Morgan a markup of 40% for industrial
workers and 45% for longshore and harbor workers. Both staffing agencies charged a higher rate
for longshore and harbor workers because of the increased cost in longshore and harbor workers’
compensation coverage. It was the duty of the hiring manager, who was the contact person at
Kinder Morgan for the staffing agencies, to provide the staffing agencies with specific labor
The documents do not specify which Kinder Morgan entity made this request.
The documents do not specify which Kinder Morgan entity made this request.
classifications pertaining to the work to be completed or accomplished. Those classifications could
be revised by mutual agreement between Kinder Morgan and the staffing agencies.
From June of 2010 until Nieves died on April 8, 2014, Temps Plus charged Kinder Morgan
at the 38% markup rate. Temps Plus was never informed by Kinder Morgan that Nieves was
working on a barge or in any other capacity that required coverage under the Longshore and Harbor
Workers’ Compensation Act. Some timesheets submitted by Kinder Morgan referenced a “coil
dock” location, but, nevertheless, Kinder Morgan never informed Temps Plus that Nieves was
working in a job assignment that required Longshore and Harbor Workers’ Compensation Act
coverage. Dawson, in contrast, has a record showing that effective December 23, 2013, Hernandez’s
classification was changed, and he was moved to a position that required coverage under the
Longshore and Harbor Workers’ Compensation Act. Dawson did not, however, know exactly what
Hernandez was doing—it did not know that he was unloading barges.
The contracts between Kinder Morgan and the staffing agencies provided that no worker
placed by the staffing agencies with Kinder Morgan would be deemed an employee of Kinder
Morgan. The staffing agencies paid those workers based on timesheets submitted by Kinder
Morgan. The staffing agencies provided workers’ compensation insurance and, if applicable,
insurance coverage pursuant to the Longshore and Harbor Workers’ Compensation Act, as well as
other forms of liability insurance. The contracts also provided for the staffing agencies to provide
the workers some training with respect to safety policies and procedures. Work was to be performed
by the employees as instructed by Kinder Morgan’s hiring manager. The employees were not
permitted to deviate from the work assignment without authorization from the hiring manager.
The steel coils that were being unloaded on April 8, 2014, weighed more than thirty tons
each. Severstal Columbus, LLC, now known as Steel Dynamics Columbus, LLC, manufactured
them. Logistic Services, Inc., loaded them on two barges in Columbus, Mississippi. Cooper Marine
& Timberlands Corporation took custody of the barges and tugged them upriver to the Kinder
Morgan terminal. Kinder Morgan Bulk Terminals received the coils pursuant to a contract with its
customer, IPSCO Tubulars, Inc. The first barge was unloaded without incident. At some point
while the second barge was being unloaded, one or more of the coils rolled to a side, which caused
the barge to list and then to sink.
The plaintiffs allege that Steel Dynamics, Logistic Services, and Cooper Marine were
negligent and that their negligence caused the accident in which Nieves and Hernandez were killed.
These three defendants have filed third-party complaints against Dawson and Temps Plus pursuant
to Federal Rules of Civil Procedure 9(h) and 14(c). The third-party complaints allege that the
staffing agencies had a duty to train Hernandez and Nieves properly and to ensure that they were
fully qualified to do the work that they were doing at the time of the incident but that they failed to
fulfill that duty. The third-party complaints seek indemnity or contribution from Dawson and Temps
Plus for any damages Steel Dynamics, Logistic Services, or Cooper Marine may be required to pay
to the plaintiffs.
Dawson and Temps Plus have filed substantially similar motions for summary judgment.
They first argue that they are immune from liability as employers of Nieves and Hernandez under
the Longshore and Harbor Workers’ Compensation Act. In the alternative, they argue that they had
no common-law duty to train Nieves and Hernandez.
III. LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT
The Longshore and Harbor Workers’ Compensation Act “is a no-fault federal compensation
scheme designed to give protection to injured maritime workers while at the same time affording
employers some degree of predictability with regard to those workers’ recoveries.” White v.
Bethlehem Steel Corp., 222 F.3d 146, 148 (4th Cir. 2000). It is a federal workmen’s compensation
statute that provides compensation to certain employees for disability or death resulting from an
injury occurring on the navigable waters of the United States and certain adjoining facilities. Peter
v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 938 (3rd Cir. 1990); 33 U.S.C. § 903(a). As with
state workers’ compensation laws, after which the Longshore and Harbor Workers’ Compensation
Act is modeled, the employer3 is required to provide compensation for disability or death
irrespective of fault. 33 U.S.C. § 904. In return, again as is the case with the corresponding state
laws, the employer is immune from tort liability. Id. § 905(a). When an employer has fulfilled its
obligations under the act by paying benefits to the injured employee, “further tort-based contribution
from the employer is foreclosed.” Triguero v. Consolidated Rail Corp., 932 F.2d 95, 98 (2nd Cir.
1991). That immunity extends to third-party claims for contribution. Id.
Here, Temps Plus and Dawson argue that they are entitled to immunity under the Act
because they employed Nieves and Hernandez, paid their salaries and benefits, and obtained the
insurance coverage that provided compensation under the Act. Logistic Services and Steel
The act defines “employer” as “an employer any of whose employees are employed in
maritime employment, in whole or in part, upon the navigable waters of the United States (including
any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area
customarily used by an employer in loading, unloading, repairing, or building a vessel).” 33 U.S.C.
Dynamics disagree.4 They argue the Act permits only one immune employer for each employee.
In this case, they contend, genuine disputes of material fact remain as to whether Kinder Morgan
was the employer entitled to immunity under the Act or whether the staffing agencies were. Kinder
Morgan Bulk Terminals previously filed a motion for summary judgment asserting as a matter of
law that it was a borrowing employer entitled to immunity under the Act. The Court denied that
motion because Kinder Morgan Bulk Terminals failed to show that there was no genuine dispute of
material fact as to whether it was a borrowing employer. See Document #114. Steel Dynamics and
Logistic Services argue that since the Act permits only one immune employer for an employee, and
since the Court has previously determined that a genuine dispute of material fact exists as to whether
Kinder Morgan Bulk Terminals was a borrowing employer, the motions for summary judgment filed
by Temps Plus and Dawson also must be denied. As to the staffing agencies’ alternative argument,
Steel Dynamics and Logistic Services contend that the contracts between Kinder Morgan and the
staffing agencies obligated the staffing agencies to train Nieves and Hernandez, and that those
contractual obligations give rise to a common-law duty that was breached.
Neither Steel Dynamics nor Logistic Services has cited a case holding that there can be only
one immune employer under the Longshore and Harbor Workers’ Compensation Act, and the Court
has found none. The common-law rule acknowledges that an employee may have two masters if
the service to one does not involve abandonment of the other. See Restatement (Second) of Agency
§ 226; Minkota Power Coop., Inc. v. Manitowez Co., Inc., 669 F.2d 525, 531 (8th Cir. 1982);
Although Cooper Marine filed a third-party complaint against Temps Plus and Dawson, it
now argues, “[s]ince immunity under the LHWCA extends to only one employer, Temps Plus should
be held by the Court to be the employer of Nieves entitled to statutory immunity and Dawson should
be held by the Court to be the employer of Perez [Hernandez] entitled to statutory immunity.”
Document #139 at 14.
Transport Ins. Co. v. Mfgrs. Cas. Ins. Co., 226 F. Supp. 251, 255 (E.D. Ark. 1964). In the state
workers’ compensation context, the majority rule is that a temporary employee is an employee of
both the staffing agency and its customer company for whom the work is done. Goodman v. Sioux
Steel Co., 475 N.W.2d 563, 564 (S.D. 1991); see also Kidder v. Miller-Davis Co., 564 N.W.2d 872,
880 (Mich. 1997); Coca-Cola Co. v. Nicks, 450 S.E.2d 838, 839 (Ga. App. 1994); Daniels v. Riley’s
Health & Fitness Ctrs., 310 Ark. 756, 759, 840 S.W.2d 177, 178 (1992). The borrowed servant
doctrine applies in the federal context much as it does in the state context. Hess Oil, 903 F.2d at
939. Since the majority of states hold that two persons may be employers under the workers’
compensation laws, the same can be true under the Longshore and Harbor Workers’ Compensation
Act. The Fifth Circuit has held that under the Jones Act a staffing agency that provided an employee
to an oil company remained an employer under the Jones Act even though the employee was the
borrowed servant of the oil company. Spinks v. Chevron Oil Co., 507 F.2d 216, 224 (5th Cir. 1975).
The court explained:
In any commonsense meaning of the term, Labor Services was Spinks’ employer.
He was hired and paid by Labor Services. That company, not Chevron, withheld
taxes and Social Security payments from his salary and forwarded them to the
government as required of an employer by law.
Id. The Fifth Circuit has expressly held that an employee may have two employers under the
Longshore and Harbor Workers’ Compensation Act:
Congress designed the LHWCA to provide injured employees with certain
and absolute benefits instead of potential common-law benefits obtainable only via
tort actions against the employer. This structure is best served by a rule holding dual
employers jointly and severally liable for compensable injuries incurred by
employees. If the rule were otherwise, an employee’s compensation would
undoubtedly be delayed in many instances while the employers, not unreasonably,
dissected his actions to determine for whom the employee was working at the exact
moment the accident occurred. Holding dual employers jointly and severally liable
guarantees that an injured employee will not go without compensation benefits while
the employers battle to determine which is liable.
Oilfield Safety & Mach. Specialties, Inc. v. Harman Unlimited, Inc., 625 F.2d 1248, 1256 (5th Cir.
1980) (citation omitted). Although this case relates to the dual employers doctrine rather than the
borrowed servant doctrine, it refutes the argument by Steel Dynamics and Logistic Services that an
employee can have only one employer under the Act. The Benefits Review Board has held that both
a staffing agency and the business to whom the agency sent an employee were employers who were
immune under 33 U.S.C. § 933(g). Redmond v. Crawford & Co., BRB Nos. 97-1117 and 97-1117A,
1998 WL 377787 (June 15, 1998). Similarly, the District of Rhode Island held that under 33 U.S.C.
§ 933(a) a staffing agency “is not an independent third party.” Guillory v. Gukutu, 534 F. Supp. 2d
267, 274 (D.R.I. 2008). The court explained:
The borrowed servant doctrine, as applied under the LHWCA, effectively renders the
general employer the master of the borrowed employee for liability purposes, as it
is the general employer who controls the work, and working conditions, of its
borrowed employee. To assign to a nominal employer any independent duty to
protect third parties at the work site would give that employer a degree of authority,
control, and potential culpability over workplace occurrences that the borrowed
servant doctrine, as it has been established specifically under the LHWCA, serves
Id. at 275; see also Ates v. B&D Contracting, Inc., No. 1:10CV272-HSO-JMR, 2011 WL 5507420
at *7 (S.D. Miss. Nov. 9, 2011). Although Guillory, like Redmond, concerned immunity under
section 933(a) rather than section 905, the Act’s definition of “employer” governs both sections.
In short, no case has expressly held that a longshore and harbor worker can have only one
immune employer. The common-law rule, the case law under the majority of the state workers’
compensation laws, cases interpreting other federal statutes, and cases interpreting section 933(a)
of the Act held that an employee can have two employers. Furthermore, the logic of Guillory
applies equally to section 905—to assign a staffing agency a duty to give job-specific training to
longshore workers would give them a degree of authority, control, and potential culpability over
workplace occurrences that cannot be justified. Likewise, the holding in Oilfield Safety that dual
employers may both be liable for the compensation required by section 904 requires that both be
immune under section 905.
The argument by Steel Dynamics and Logistic Services that this Court’s prior opinion on the
issue of whether Kinder Morgan was a borrowing employer controls with respect to Temps Plus and
Dawson is misplaced. That argument overlooks an important distinction between Kinder Morgan
and the staffing agencies. Kinder Morgan entered into contracts with the staffing agencies that
expressly provided that it was not the employer of the workers that the staffing agencies sent. In the
face of that contractual provision, Kinder Morgan nonetheless argued that there was no genuine
dispute as to any material fact and that it was, as a matter of law, an employer of Nieves and
Hernandez. That was a tough bar to chin. The staffing agencies do not need to chin that bar. Each
staffing agency agreed with Kinder Morgan and the workers that it was the employer of the workers
that it sent to Kinder Morgan. Furthermore, each contractually agreed to pay the workers’ salaries
and benefits and to purchase insurance to provide compensation under the state workers’
compensation law and the Longshore and Harbor Workers’ Compensation Act. Unlike Kinder
Morgan, the staffing agencies have not contractually denied being the decedents’ employers while
claiming to be their employers in order to obtain immunity. Rather, the staffing agencies agreed all
along that they were the employers, and they have done specific acts that employers are required by
law to do. Now they argue nothing more than that they are entitled to the immunity that the law
affords to employers.
The cases upon which this Court relied in analyzing whether Kinder Morgan was, as a matter
of law, a borrowing employer of the decedents do not apply to Temps Plus and Dawson. Temps
Plus and Dawson were not borrowing employers and do not claim to have been. Neither Steel
Dynamics nor Logistic Services has cited any case, nor has the Court found one, holding that a
staffing agency that sends an employee to work for one of its customers is not an employer under
the Longshore and Harbor Workers’ Compensation Act or any corresponding state laws.
The Act provides that every employer must secure the payment to his employees of the
compensation payable under the Act. 33 U.S.C. § 904. An employer’s liability to a longshore or
harbor worker ends there. Id. at § 905. No further tort liability directly to the employer or indirectly
through contribution to third parties can be imposed. Triguero, 932 F.2d at 98. Here, Temps Plus
employed Nieves and provided compensation as required by section 904. Dawson did the same for
Hernandez. Temps Plus and Dawson are therefore immune from tort liability. They are entitled to
IV. COMMON-LAW DUTY TO TRAIN
The staffing agencies also prevail under their alternative argument that they owed no duty
to train Nieves and Hernandez on how to unload steel coils from barges and ensure that they were
qualified to do so. Whether a duty is owed is a question of law. Williams v. TESCO Servs., Inc.,
789 F.3d 968, 973 (8th Cir. 2013). It is undisputed that when the fatal accident occurred, Nieves
and Hernandez were performing work for Kinder Morgan Bulk Terminals. The Court has already
so stated. Document #114 at 11. It is also undisputed that Kinder Morgan directed and supervised
them in their day-to-day tasks. Id. at 10. Steel Dynamics and Logistic Services contend, however,
that the contracts between the staffing agencies and Kinder Morgan imposed on the staffing agencies
a duty to train Nieves and Hernandez. They cite several provisions in the contract, most importantly
the provisions under section 10.0, which require the staffing agency to ensure that persons provided
as workers have the necessary training, safety equipment, and safety instruction to accomplish the
work assignment and to take all necessary precautions toward all safety issues and promote safe
work practices. Those provisions, and the others upon which Steel Dynamics and Logistic Services
rely, must be construed in light of the nature of the relationship between the staffing agencies and
Kinder Morgan. Paragraph 3.8 of the contract provides that the staffing agencies “shall not
undertake any responsibilities or duties other than the provision of temporary personnel to [Kinder
On the date of the accident, Nieves and Hernandez were unloading steel coils from a barge.
They were working for Kinder Morgan Bulk Terminals. The undisputed evidence establishes that
Kinder Morgan Bulk Terminals assigned them to that work and was supervising them when they did
it. It is undisputed that Kinder Morgan Bulk Terminals provided any training in unloading barges
that they had or that Kinder Morgan deemed that they needed. Kinder Morgan Bulk Terminals
owned the dock and is in the business of loading and unloading barges. The staffing agencies are
not in that business. They are brokers who act as intermediaries between workers seeking
employment and employers seeking workers. They also provide human resources services with
respect to the employees that they provide to their customers. It would make no sense for Kinder
Morgan Bulk Terminals—which owns a dock and is in the business of loading and unloading
barges—to contract with a staffing agency to train workers how to load and unload barges safely.
A contract must be afforded a reasonable interpretation. Barnett v. Maryland Cas. Co., 253 Ark.
1103, 1104, 490 S.W.2d 784 (1973). To expect a staffing agency to train employees on how to
unload thirty-ton steel coils from a barge would be unreasonable. The Court will not construe the
contracts between Kinder Morgan and the staffing agencies to reach such an unreasonable
Nor did the parties to the contract construe them in that manner. A corporate representative
of Kinder Morgan Bulk Terminals has testified under oath that section 10.0 of the contracts related
to safety and environmental requirements; that there was no person from the staffing agencies
supervising or managing the work at the terminal where Nieves and Hernandez were offloading
cargo; that all of the management and supervision of the work at the terminal on that date was done
by Kinder Morgan Bulk Terminals personnel; and that Kinder Morgan Bulk Terminals provided the
actual supervision and training with respect to the work tasks of unloading cargo from a barge.
Testimony from both staffing agencies confirms the testimony of Kinder Morgan Bulk Terminals’
The contracts between the staffing agencies and Kinder Morgan did not impose on the
staffing agencies the duty to train Nieves and Hernandez on how to unload steel coils from barges.
Nor does any other rule of law.
V. KINDER MORGAN
Resolving the motions for summary judgment filed by the staffing agencies has required the
Court to review the entire record and reconsider the ruling on the motion for summary judgment
filed by the Kinder Morgan entities. In doing so, the Court concludes that it erred in its previous
ruling when it denied the motion for summary judgment filed on behalf of Kinder Morgan Energy
Partners. As Kinder Morgan Energy Partners argued, it played no role in unloading the barges, and
its only connection to the accident was the contracts between itself and Temps Plus and Dawson.
Summary judgment is therefore granted in favor of Kinder Morgan Energy Partners.
For the reasons stated, the motions for summary judgment filed by Temps Plus, Inc., and
Dawson Employment Service, Inc., are GRANTED. Documents #121 and #124. The third-party
complaints filed by Steel Dynamics Columbus, LLC, Logistic Services, Inc., and Cooper Marine
& Timberlands Corporation against Temps Plus, Inc., and Dawson Employment Service, Inc., are
dismissed with prejudice. Summary judgment is also entered in favor of Kinder Morgan Energy
IT IS SO ORDERED this 8th day of June 2017.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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