Williams v. Danos and Curole Marine Contractors, L.L.C. et al

Filing 37

ORDER & REASONS granting dft Danos and Curole 's 12 Motion for Summary Judgment and dft ERT's 23 Motion for Summary Judgment; pla's claims against Danos & Curole and ERT are DISMISSED WITH PREJUDICE. Signed by Chief Judge Sarah S. Vance on 6/23/2011. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MICHAEL WILLIAMS

CIVIL ACTION

VERSUS

NO: 10-1813

DANOS AND CUROLE MARINE
CONTRACTORS, LLC, ET AL.

SECTION: R(3)

ORDER AND REASONS
Before the Court are defendant Danos & Curole Marine
Contractors, LLC’s motion for summary judgment on plaintiff
Michael Williams’s status as a seaman1 and defendant Energy
Resource Technology GOM, Inc.’s (ERT) motion for summary judgment
that it is not liable for any alleged negligence of Danos &
Curole, an independent contractor.2

Because the Court finds that

plaintiff Michael Williams does not qualify as a Jones Act
seaman, the Court grants Danos & Curole’s motion.

1

(R. Doc. 23.)

2

(R. Doc. 12.)

The Court also

grants ERT’s motion, as there are no genuine issues of material
fact regarding ERT’s alleged liability.

I.

BACKGROUND
Danos & Curole hired Williams to perform sandblasting and

painting services on petroleum platforms owned by ERT.

The work

was performed pursuant to a Master Services Contract (MSC)
executed on August 5, 1999, which specifies that Danos & Curole
is an independent contractor of ERT.3

To transport and house

Williams, other members of Danos & Curole’s blasting/painting
crew, and their equipment, ERT provided a supply vessel owned by
a third-party contractor.4

According to the affidavit of Steve

Blake, who was Williams’s supervisor on the “ERT job,” “the vast
majority, 80-90% or more, of all Danos & Curole employee work
time, including that of Michael Williams, was spent working on
platforms.”5

Blake states that, “at no time was Michael Williams

ever assigned to a vessel except on a temporary and transient
basis that formed less than 30% of his total work time on the ERT

3

(R. Doc. 12-2 at 1.)

4

(R. Doc. 23-2 at 2.)

5

(Id. at 3.)
2

job.”6
Williams testified that he worked on ERT platforms for two
separate periods, or “hitches.”7

The first hitch lasted for 27

days, and the blasting/painting crew, of which Williams was a
part, consisted of nine workers.8

The crew slept, ate, and used

the bathroom on the vessel,9 and would transfer to the platform
each day to work 12-hour shifts.

One crew member, however, was

required to stay behind on the vessel as the “pot man” on a
loosely rotating basis.10

When questioned as to how many days

out of the 27 that he spent working as the pot man, as opposed to
working on the platform, Williams responded, “I know I done it at
least four times, maybe more, that I could recall.”11
On the second hitch, Williams also slept on the vessel, but
ate his meals on the platform.12

As opposed to the first hitch,

Williams never stayed behind as a pot man; the entire crew was
transported each day to the platform to work, except when
6

(Id.)

7

(R. Doc. 23-2 at 7.)

8

(Id. at 12-13.)

9

(Id. at 8.)

10

(Id. at 12.)

11

(Deposition of Michael Williams, p. 62.)

12

(Id. at 19.)
3

prevented from doing so by inclement weather.13

Williams

testified that, when the crew stayed on the vessel in bad
weather, they were “just sitting out there.”14
After about a week into the second hitch, Williams allegedly
suffered an injury to his left shoulder as he and other members
of the crew retrieved a Danos & Curole “pick board” from the
platform.

Williams testified that, on the day of the accident,

work on the platform had been stopped due to bad weather.15
Williams stated that ERT’s “lead operator . . . got tired of us
just sitting around” and asked the Danos & Curole supervisor,
Blake, “Is there anything y’all can do for me?”16

Williams

further testified that he and the other crew members were then
ordered by Blake to retrieve the pick boards.17

In order to move

one of the boards, Williams worked with two other crew members.18
Williams testified that he wrapped strings attached to the board
around his wrists to pick up his end of the board, and, when the

13

(Id. at 20.)

14

(Id. at 19.)

15

(R. Doc. 34-2 at 2.)

16

(Id.)

17

(R. Doc. 12-3 at 6.)

18

(Id. at 6-7.)
4

board slipped, the strings jerked his arms down injuring his
shoulder.19
Williams brought this action against Danos & Curole and ERT
on June 13, 2011, asserting claims under the Jones Act and the
general maritime law.20

Williams alleges that he was

inadequately trained to transport the pick board and that
defendants negligently instructed him to retrieve the pick board
in bad weather.

Williams further alleges that Blake should have

exercised stop work authority because of the weather conditions
at the time of the incident.

Danos & Curole and ERT now move for

summary judgment.

II.

STANDARD
Summary judgment is appropriate when “the pleadings, the

discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).

When assessing whether a dispute as to any

19

(Id. at 7-8.)

20

(R. Doc. 1.)
5

material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.”

Delta & Pine Land Co. v. Nationwide

Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).

All

reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are
insufficient to either support or defeat a motion for summary
judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216

(5th Cir. 1985) (quoting C. Wright, A. Miller & M. Kane, Federal
Practice and Procedure: Civil 2d § 2738 (1983)).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’”

Int’l

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991).

The nonmoving party can then defeat the motion by

either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.”

Id. at 1265.

If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
6

satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim.

See Celotex, 477 U.S. at 325.

The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists.

See id. at 324.

The

nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial.

Id. at

325; see also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the
entry of summary judgment, after adequate time for discover 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.’”) (citing Celotex, 477 U.S. at 332).

III. DISCUSSION
A.

Jones Act
Williams’s Jones Act claim against Danos & Curole turns on

whether he qualifies as a “seaman” under that statute.

“The

Jones Act provides a cause of action in negligence for ‘any
seaman’ injured ‘in the course of his employment.’”

Chandris,

Inc. v. Latis, 515 U.S. 347, 354 (1995) (citing 46 U.S.C. § 688).
That term is not defined in the Jones Act, but not every
7

“maritime worker on a ship at sea . . . is automatically a member
of the crew of the vessel within the meaning of the statutory
terms.”

Id. at 363.

To achieve status as a seaman, a party must

show both: (1) that the employee’s duties contributed to the
function of a navigable vessel or the accomplishment of its
mission; and (2) that the claimant had a connection to a vessel
in navigation (or to an identifiable group of vessels) that was
substantial in terms of both its duration and its nature.
368.

Id. at

The purpose of this test is to “separate the sea-based

maritime employees who are entitled to Jones Act protection from
those land based workers who have only a transitory or sporadic
connection to a vessel in navigation, and therefore whose
employment does not regularly expose them to the perils of the
sea.”

Id.

Whether a person is a seaman is ordinarily a question

of fact for the jury.

Ellender v. Kiva Const. & Engin'g, Inc.,

909 F.2d 803, 805 (5th Cir. 1990).

Summary judgment is

appropriate, however, when “the facts establish [the lack of
seaman status] beyond a question as a matter of law,” and no
reasonable evidentiary basis exists to support a jury finding
that the injured person is a seaman.

Id. (quoting Barrett v.

Chevron USA, Inc., 781 F.2d 1067, 1074 (5th Cir. 1984)).
Here, Danos & Curole has established, as a matter of law
that Williams lacked a substantial connection to the vessel in
8

terms of duration.

See Chandris, 515 U.S. at 368.

To determine

the temporal element, the Supreme Court has adopted a rule of
thumb: “A worker who spends less than about 30 percent of his
time in the service of a vessel in navigation should not qualify
as a seaman under the Jones Act.”

Id. at 371.

Danos & Curole

submits the affidavit of Williams’s supervisor, Blake, who states
that “[a]t no time was Michael Williams ever assigned to a vessel
except on a temporary and transient basis that formed far less
than 30% of his total work time on the ERT job.”
nothing to refute this evidence.

Williams offers

Indeed, Williams’s attorney

conceded at oral argument that there is no evidence in the record
to suggest that Williams spent at least 30 percent of his work
time aboard the supply vessel.

And although Williams spent time

on the vessel eating and sleeping, that time does not figure into
the analysis, because it was not spent “in the service of a
vessel in navigation.”

See, e.g., Hufnagel v. Omega Service

Indust., Inc., 182 F.3d 340, 347 (5th Cir. 1999) (holding that
the time plaintiff “ate, slept, and spent time” on vessel could
not be considered in the substantial connection analysis);
Pearson v. Offshore Specialty Fabricators, Inc., 1992 WL 300826
(E.D. La. 1992) (finding that plaintiff did not perform a
substantial amount of work onboard the vessel even though he ate
and slept there).

Nor has Williams suggested any circumstance
9

that would justify an “exceptional departure from the 30 percent
test.”

Roberts v. Cardinal Services, 266 F.3d 368, 377 (5th Cir.

2001) (acknowledging that the 30 percent threshold “serves as no
more than a guideline established by years of experience” but
finding no reason to depart from the “well-established rule”).
Consequently, the Court finds that Williams lacked a substantial
connection to the vessel and that Danos & Curole is entitled to
summary judgment on Williams’s status as a seaman.

See Bolden,

980 F.2d at 1445 (affirming the district court’s grant of summary
judgment on plaintiff’s seaman status because most of plaintiff’s
painting/sandblasting work was performed on platforms).

As such,

Williams’s claims under the Jones Act and for maintenance and
cure must be dismissed.

See Hall v. Diamond M Co., 732 F.2d

1246, 1248 (5th Cir. 1984) (“The standard for determining seaman
status for the purposes of maintenance and cure is the same as
that established for determining status under the Jones Act.”).

B.

ERT’s Liability for Alleged Negligence of an Independent
Contractor
The MSC executed between ERT and Danos & Curole specifies

that Danos & Curole is an independent contractor of ERT.

Under

Louisiana Law, which the parties do not dispute governs
Williams’s claim against ERT, a principal is typically not liable
10

for the negligent acts of its independent contractor committed
while performing duties under a contract.

See Coulter v. Texaco,

Inc., 117 F.3d 909, 911-12 (5th Cir. 1997).
has two exceptions.

That general rule

The first is if the work the contractor is

to perform is “ultrahazardous.”

Id. at 912; LeJeune v. Shell Oil

Co., 950 F.2d 267, 270 (5th Cir. 1992).

Williams does not

suggest that painting and sandblasting work falls within this
category.

See Calloway v. CNG Producing Co., 1999 WL 447451, *3

(E.D. La. 1999) (“Sandblasing and painting and the activities
involved with such work, whether in the sunshine or rain, is not
an ultrahazardous activity.”) (citing Perkins v. F.I.E. Corp.,
762 F.2d 1250, 1267-68 (5th Cir. 1985)); Hebert v. CXY Energy,
Inc., 72 F. Supp. 2d 681, 686 (W.D. La. 1999) (finding that
painting and sandblasting does not fit the definition of
ultrahzardous activity).

The second exception imposes liability

upon a principal for the negligent acts of an independent
contractor when the principal reserves the right to supervise or
control the work.

See LeJeune, 950 F.2d at 270.

Put

differently, “a principal is not liable for the torts of an
independent contractor unless the principal exercises operational
control over or expressly or impliedly authorizes the independent
contractor’s actions.”

Id.; see also Coulter, 117 F.3d at 912

(citing Graham v. Amoco Oil Co., 21 F.3d 643, 645 (5th Cir.
11

1994); Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir.
1987), cert. denied, 485 U.S. 1034 (1988)).

It is not enough

that the principal has “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 or deviations.”

LeJeune,

950 F.2d at 270 (quoting Landry v. Huthnance Drilling Co., 889
F.2d 1469, 1471 (5th Cir. 1989)).

“There must be such a

retention or right of supervision that the contractor is not
entirely free to do the work in his own way.”

Id.

Williams asserts that a jury could find ERT’s involvement in
the decision to work on the day of the incident rendered ERT
liable.21

Williams relies on his deposition testimony that ERT’s

“lead operator . . . got tired” of the crew “just sitting around”
and asked Blake “Is there anything y’all can do for me?”22

That

alone, however, is insufficient to suggest that ERT retained

21

(R. Doc. 34 at 4-5.)

22

(R. Doc. 34-2 at 2.) Williams’s also relies on Melvin
Fairman’s testimony that an ERT “company man” pressured Blake to
work despite the bad weather. Yet, Fairman acknowledged that he
did not witness the conversation between the “company man” and
Blake. As such, Fairman’s testimony is hearsay for which no
exception has been proffered, and is thus not competent summary
judgment evidence. See Warfield v. Byron, 436 F.3d 551, 559 (5th
Cir. 2006) (noting that hearsay evidence is inadmissable for the
purposes of summary judgment).
12

operational control.

Williams testified that he received his

daily assignments from Danos & Curole and that it was exclusively
up to Danos & Curole to decide when and how the work would be
performed.23

And Williams acknowledged that, as an independent

contractor, Danos & Curole “decided what to do, when to do it,
and how to do it.”24

Similarly, Blake testified that, as

foreman, he ultimately decided “how to do the work, when to do
the work, and where to do the work.”25

Blake also stated that he

would “never allow a customer to pressure [him] into doing
something unsafe.”26

Taking this testimony together, the Court

finds, as a matter of law, that ERT did not retain operational
control over Danos & Curole’s activities, as Danos & Curole could
accept or reject ERT’s suggestions or recommendations as it saw
fit.

As such, Williams cannot show that an exception to the

general rule that a principal is not liable for the negligence of
its independent contractor applies.

Summary judgment is

therefore appropriate, and Williams’s claims against ERT are
dismissed.

23

(R. Doc. 12-5 at 2.)

24

(Id.)

25

(R. Doc. 36-1 at 11.)

26

(Id.)
13

IV.

CONCLUSION
For the foregoing reasons, Danos & Curole’s and ERT’s

motions for summary judgment are GRANTED.

Williams’s claims

against Danos & Curole and ERT are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 23rd day of June, 2011.
___

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

14