Richardson v. Kerr McGee, Corp. et al

Filing 183

ORDER & REASONS granting 113 Motion for Summary Judgment; granting 125 Motion for Summary Judgment. Signed by Judge Helen G. Berrigan on 6/28/11. (plh, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RILEY RICHARDSON

CIVIL ACTION

VERSUS

NO: 08-1074

KERR-MCGEE OIL &
GAS CORPORATION, ET AL.

SECTION “C”(1)

ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Defendant Kerr McGee Oil &
Gas Corporation (“Kerr McGee”). (Rec. Doc. 113). Also before the Court is a motion for summary
judgment filed by Defendant Charles Holston, Inc. (“Charles Holston”). (Rec. Doc. 125). Plaintiff
opposes both motions. (Rec. Doc. 131). Having considered the memoranda of counsel, the record,
and the applicable law, both motions for summary judgment are GRANTED for the following
reasons.

I. BACKGROUND
This case arises from an accident, which allegedly occurred on February 20, 2006 when
Plaintiff fell while working on the Nansen Spar, which was owned and operated by Defendant Kerr
McGee at all times relevant to this suit. (Rec. Doc. 1 at 3). Plaintiff was working at the time for
Charles Holston, an independent contractor hired by Kerr McGee to perform maintenance services
for the Nansen Spar. (Rec. Doc. 113-1 at 2).
The Nansen Spar is a buoyant petroleum extraction platform located in the Gulf of Mexico
150 miles south of Houston, Texas. (Rec. Doc. 113-8 at 1). The Nansen Spar is moored to the sea
floor through a series of cables and pilings that extend 230 feet into the sea floor. (Rec. Doc. 160-2
at 1). The Nansen Spar is also connected to a network of nine risers and two pipelines used to
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extract and transport petroleum. (Rec. Doc. 113-8 at 1). Through tightening and slacking its
connecting cables the Nansen Spar can be maneuvered within a 250 foot range in order to gain better
access to the different wellheads it services. Id . The Nansen Spar has only been maneuvered in this
manner on two occasions since 2001. (Rec. Doc. 160-2 at 2). Finally, the Nansen Spar is not
expected to be moved from its present location for 17 years. (Rec. Doc. 113-8 at 1).
Through its present motion Kerr McGee argues that the Nansen Spar is not a “vessel” for
purposes of the Jones Act, 46 U.S.C. § 30104, and therefore Plaintiff’s Jones Act claims must be
dismissed. (Rec. Doc. 113-1 at 4-7). Defendant Charles Holston also moves for summary judgment
on the grounds that the Nansen Spar is not a “vessel.” (Rec. Doc. 125-3 at 5-7). Furthermore, Kerr
McGee argues that it is not liable for Plaintiff’s injuries under Texas law, which it argues applies
to this case under the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq.
(Rec. Doc. 113-1 at 8-12).

II. LAW AND ANALYSIS
A. Summary Judgment Standard
Summary judgment is only proper when the record indicates that there is not a “genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56. A genuine issue of fact exists only if the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-48
(1986); see also Taita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001).
When considering a motion for summary judgment, this Court “will review the facts drawing all
inferences most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto Ins. Co.,
784 F.2d 577, 578 (5th Cir. 1986).
The party moving for summary judgment bears the initial burden of “informing the district
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court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Once the moving party has met its initial burden, however, “the burden shifts to the
non-moving party to produce evidence or designate specific facts showing the existence of a genuine
issue for trial.” Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
In order to satisfy its burden, the non-moving party must put forth competent evidence and cannot
rely on “unsubstantiated assertions” and “conclusory allegations.” See Hopper v. Frank, 16 F.3d
92 (5th Cir. 1994); Lujan v. Nat’l. Wildlife Fed’n., 497 U.S. 871, 871-73 (1990); Donaghey v. Ocean
Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

B. The Jones Act
A cause of action will not arise under the Jones Act unless the plaintiff is a “seaman.”
Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 346 (5th Cir. 1999). To establish seaman status
for Jones Act purposes, a plaintiff must establish that: (1) his duties contributed to the function of
the vessel or to the accomplishment of its mission; and (2) that he had a connection to a vessel or
an identifiable fleet of vessels in navigation that was substantial in terms of both its duration and
nature. Chandris v. Latsis, 515 U.S. 347, 367-70 (1995); Hufnagel v. Omega Service Ind., Inc., 182
F.3d 340, 346 (5th Cir. 1999).
Defendants argue that the Nansen Spar is not a “vessel” for purposes of the Jones Act and
therefore Plaintiff’s Jones Act claims should be dismissed. (Rec. Doc. 113-1 at 4-7; Rec. Doc. 125-3
at 5-7). The Fifth Circuit has clearly stated that spars are not vessels but are rather work-platforms.
Fields v. Pool Offshore, Inc., 182 F.3d 353, 358 (5th Cir. 1999). Specifically, the Fifth Circuit held
that spars are not vessels because spars: 1) are designed to work a specific, fixed location for the
foreseeable future, 2) are secured to the ocean floor with an “elaborate system that guarantees
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movement will be a difficult and expensive undertaking,” and 3) they have a “tightly-constrained
range of motion” limiting them to 250 feet of incidental mobility, which is not inconsistent with
work platform status. Id. at 358-59. Since the Nansen Spar exhibits all three of the above
characteristics, if Fields is still good law, then this Court would be compelled to hold that the
Nansen Spar is not a vessel.
Plaintiff argues that Fields has been overturned by Stewart v. Dutra Construction Co, 543
U.S. 481 (2005). (Rec. Doc. 131 at 3). In Stewart the Supreme Court held that a “vessel is any
watercraft practically capable of maritime transportation, regardless of its primary purpose or state
of transit at a particular moment.” Stewart, 543 U.S. at 497. The issue before the Supreme Court
in Stewart was whether a dredge in Boston Harbor was a vessel, despite the fact that it was not
moving at the time of the plaintiff’s injuries and could only propel itself by manipulating its anchors
and various tow cables. Id. at 484-87. The Supreme Court found that the barge was a vessel
because the barge “was not only capable of being used to transport equipment and workers over
water - it was used to transport those things.” Id. at 495.
In reaching its decision, the Supreme Court was careful to distinguish two cases, Cope v.
Vallette Dry-Dock Co., 119 U.S. 625 (1887) and Evansville & Bowling Green Packet Co. v. Chero
Cola Bottling Co., 271 U.S. 19 (1926). Id at 493. In Cope the Supreme Court held that a floating
drydock was not a vessel because it was not practically capable of being used to transport people,
freight, or cargo from place to place. Id. In Evansville the Supreme Court held that a wharfboat was
not a vessel as it was secured by cables to the mainland and therefore not practically capable of
being used for transportation. Id. The Stewart Court held that neither of these cases was
inconsistent with its definition of vessels because “a watercraft is not capable of being used for
maritime transportation in any meaningful sense if it has been permanently moored or otherwise
rendered practically incapable of transportation or movement.” Id. at 494.
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While the Fifth Circuit has recognized that Stewart has “broadened the set of unconventional
watercraft that must be deemed vessels,” it has not specifically addressed whether Stewart has
overturned Fields. Holmes v. Atlantic Sounding Co., 437 F.3d 441, 448 (5th Cir. 2006). Having
considered both Stewart and Fields this Court is convinced that Fields remains good law. As the
Supreme Court noted in Stewart, “a watercraft is not capable of being used for maritime
transportation in any meaningful sense if it has been permanently moored....” Stewart, 543 U.S. at
494. Here the Nansen Spar, like the spar in Fields, has been, in effect, permanently moored to the
ocean floor, and therefore under Stewart it is not capable of maritime transport in any meaningful
way. Plaintiff argues that the Nansen Spar is capable of transportation because it can move itself
within a 250 foot range, just like the barge in Stewart. (Rec. Doc. 131 at 6). However, the ability
to move 250 feet in the middle of the ocean can hardly be considered “transportation,” nor does
Stewart stand for the proposition that a structure becomes a vessel if it is capable of any movement.
Rather Stewart recognized that even floating, and therefore moving, docks and boats are not vessels
if they are permanently moored or secured by cables to the mainland. Stewart, 543 U.S. at 493.
Consequently, since the Nansen Spar is permanently moored to the ocean floor, its incidental
movement is insufficient to make the Spar a vessel and therefore Plaintiff’s Jones Act claims must
be dismissed.

C. The Outer Continental Shelf Lands Act
In 1945 President Truman declared that the United States regarded the Outer Continental
Shelf beneath the high seas but contiguous to the coast of the United States as appertaining to United
States’ territory. Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 355-66 (1969). In response to
this expansion of United States territory, OCSLA was enacted in 1953 to expand federal jurisdiction
to the limits of the continental shelf. Id. After Congress had expanded federal jurisdiction to cover
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oil and gas platforms on the Continental Shelf, it was unclear what body of law would apply to these
new platforms. Rodrigue, 395 U.S. at 355-66. Congress eventually decided that oil platforms would
not be covered by maritime law, but by federal law. Id. at 366. However, Congress realized that
federal law was inadequate to handle the variety of legal claims that would arise on these OCSLA
sites, so the law of adjacent States was selected to supplement federal law. Id. at 362-366.
The Fifth Circuit interprets OCSLA as creating a three-part test to determine whether state
law applies as a supplement to Federal law: (1) the controversy must arise on a situs covered by
OCSLA; (2) Federal maritime law must not apply of its own force; and (3) the state law must not
be inconsistent with Federal law. Union Tex. Petroleum v PLT engineering, Inc., 895 F.2d 1043,
1047 (5th Cir. 1990). Here all of the parties stipulate to the fact that the Nansen Spar is an OCSLA
situs and the Court agrees with the parties. (Rec. Doc. 180-82); see also, Demette v. Falcon Drilling
Co., Inc., 230 F.3d 492, 498 (5th Cir. 2002) (listing the factors that make an installation an OCSLA
situs).
The parties disagree on whether Federal maritime law applies to Plaintiff’s claims. In order
for Federal maritime law to apply, Plaintiff’s tort claims must (1) involve a maritime location and
(2) be connected with maritime activity. Texaco v. AmCLYDE Engineered Products Co., Inc., 448
F.3d 760, 771 (5th Cir. 2006). Plaintiff argues that maritime law applies to this case because he was
injured while on board a vessel. (Rec. Doc. 181 at 2). However, as previously discussed, the
Nansen Spar is not a vessel and therefore maritime law will not apply on that basis. Moreover,
under OCSLA admiralty jurisdiction should not be extended to accidents on areas covered by
OCSLA. Texaco v. AmCLYDE Engineered Products Co., Inc., 448 F.3d 760, 773 (5th Cir. 2006).
Finally,
“OCSLA's text and history require application of the Act to harm arising directly from the repair and
maintenance of fixed platforms on the Shelf....” Id. In this case Plaintiff was injured while
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performing maintenance work on a fixed platform on the Outer Continental Shelf, therefore
maritime law does not apply to his claims. C.f. Grand Isle Shipyard, Inc. v. Seacor Marine, LLC,
589 F.3d 778, 781 (5th Cir. 2009) (en banc) (contrasting a tort which occurs on navigable waters,
where maritime law applies, with a tort on a stationary platform).
There are few cases that address the third part of the of the PLT Engineering test. Those
cases that do discuss this section of the test do little more than state that under OCSLA state law is
applied to the extent that it is not inconsistent with Federal law. Rodrigue, 395 U.S. at 358. In this
case, if any state law is borrowed by Federal law it would be the law of Texas, as the Nansen Spar
is adjacent to Texas. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 481 (1981) (“Thus,
a personal injury action involving events occurring on the Shelf is governed by federal law, the
content of which is borrowed from the law of the adjacent State....”). Here no party has suggested
that the applicable Texas laws are inconsistent with Federal law, nor can the Court find any such
inconsistency. As a result, the Court finds that Texas state law applies to Plaintiff’s claims.
Furthermore, section 1333(b) of OCSLA extends the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq, to employees disabled or killed “as the
result of operations conducted on the outer Continental Shelf for the purposes of exploring for ... [or]
developing ... the natural resources ... of the subsoil and seabed of the outer Continental Shelf.”
Becker v. Tidewater Inc., 586 F.3d 358, 366 (5th Cir. 2009) (quoting Mills v. Director, 877 F.2d 356,
357-58 (5th Cir. 1989) (en banc)). The Fifth Circuit has held that “LHWCA coverage as extended
under § 1333(b) applies to employees who (1) suffer injury or death on an OCS platform or the
waters above the OCS; and (2) satisfy the “but for” status test this court described in Herb's
Welding, Inc. v. Gray, 766 F.2d 898, 900 (5th Cir. 1985).” Mills, 877 F.2d at 362.
Here Plaintiff meets the above test and is therefore covered under the LHWCA. Plaintiff was
clearly injured on a OCS platform and he would not have been injured “but for” the extractive
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operations on the shelf. The LHWCA provides the exclusive remedies for an employee’s claims
against his or her employer. Demette, 280 F.3d at 502; see also Moore v. Phillips Petroleum Co.,
912 F.2d 789, 791 (5th Cir. 1990). Plaintiff has asserted no LHWCA claim against his employer,
Defendant Charles Holston, therefore Plaintiff has no viable claims against his employer and
Defendant Charles Holston is entitled to summary judgment. Moreover, while a person covered by
the LHWCA may recover for a personal injured caused by the negligence of a vessel, as previously
discussed, the Nansen Spar is not a vessel and therefore this provision does not apply to Plaintiff’s
claims. 33 U.S.C. § 905(b).
As a result, the only claims Plaintiff may assert against the remaining Defendant, Kerr
McGee, are Texas state law claims.

D. Texas State Law
Under Texas law a premises owner does not generally have a duty to ensure that an
independent contractor safely performs his or her work. Koch Refining Co. v. Chapa, 11 S.W.3d
153, 155 (Tex. 1999). However, a premises owner may incur such a duty if it either contractually
retains or actually exercises control over the independent contractor’s work. Id. “It is not enough
that he has merely a general right to order the work stopped or resumed, to inspect its progress or
to receive reports, to make suggestions or recommendations which need not necessarily be followed,
or to prescribe alterations and deviations....” Id.
It is undisputed that Kerr McGee did not contractually retain control of its subcontractor,
Charles Holston. However, Plaintiff does maintain that Kerr McGee did actually exercise control
over Charles Holston’s work. (Rec. Doc. 131 at 9-11). Specifically, Plaintiff argues that Kerr
McGee: 1) was aware that workers were placed on beams to carry out their work, 2) knew that the
beams were slippery, 3) had the right to stop the job and change the way it was done, 4) controlled
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everything on the rig, including scaffolding, 5) issues work permits and required that a job safety
checklist be prepared daily, and 6) controlled the time and manner that crew changes occurred.
(Rec. Doc. 131 at 9-10). The only evidence Plaintiff cites in support of these allegations is the
deposition of Ronald Bailey.
The Court notes that Plaintiff’s argument is nearly identical to the argument advanced by the
plaintiff in Koch Refining. In that case the plaintiff contended that defendant maintained sufficient
control over its subcontractor by “the mere presence of the [defendant’s] safety employee and the
possibility that he might intervene and forbid [the plaintiff] from lifting the pipe in a dangerous
manner.” Id. The Texas Supreme Court held that this degree of control was insufficient to create
a duty, as it failed to establish that the subcontractor was “not free to do the work in their own way
and is not evidence that [defendant] controlled the method of work or its operative details. Every
premises owner must have some latitude to tell its independent contractors what to do, in general
terms, and may do so without becoming subject to liability.” Id.
Ronald Bailey’s deposition does not establish any evidence beyond that presented to the
court in Koch Refining. Just as in that case, Kerr McGee supervised the work performed by its
subcontractor and was able to stop work if it was being performed in a dangerous manner. In fact
Mr. Bailey’s deposition suggests that Charles Holston was free to perform its work in its own way.
When asked if anyone from Kerr McGee showed the Charles Holston crew where to work and the
type of work to be done, Mr. Bailey replied “[n]o sir. He showed us the platform, the emergency
devices, the emergency equipment....but he didn’t have nothing to do with where we were going to
be working.” (Rec. Doc. 131-6 at 12). When pressed about whether anyone showed them where
to work, Mr. Bailey could not recall who told him where to work. Id. While Mr. Bailey did meet
frequently with Kerr McGee personnel, those meeting were just to inform Kerr McGee of what the
Charles Holston crew was doing and to “get[] on the same page with them.” Id. Furthermore,
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Charles Holston provided all of the crew’s required equipment and the crew conducted their own
daily safety meeting. Id. at 13. Finally, while Kerr McGee did have stop-work authority, it never
actually exercised that authority with reference to Charles Holston’s job performance. Id. Therefore
this Court finds that Kerr McGee did not actually exercise control over Charles Holston and is
therefore not liable for Plaintiff’s claims under Texas law.

III. CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ motions for summary judgment are GRANTED. (Rec.
Docs 113 & 125).
New Orleans, Louisiana this 28th day of June, 2011.

_______________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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