Ingram v. Express Energy Services Operating, LP
Filing
45
ORDER AND REASONS denying 34 Motion for Summary Judgment filed by Deltide Energy Services, L.L.C. Signed by Judge Ivan L.R. Lemelle on 7/26/2012. (ijg, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARTHUR INGRAM, III
VERSUS
EXPRESS ENERGY SERVICES OPERATING, LP
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CIVIL ACTION
NO. 11-82
SECTION “B”(4)
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
No. 34), submitted by Defendant Deltide Energy Services, L.L.C.
(“Deltide”). In response, Plaintiff Arthur Ingram (“Plaintiff”)
submitted
a
Memorandum
in
Opposition
(Rec.
Doc.
No.
38)
to
Deltide’s Motion. Subsequently, Deltide filed a Reply Memorandum in
Support its Motion for Summary Judgment (Rec. Doc. No. 42).
Accordingly, and for the reasons articulated below,
IT IS ORDERED that Deltide’s Motion for Summary Judgment (Rec.
Doc. No. 34) is DENIED.
PROCEDURAL HISTORY
On August 10, 2010, Plaintiff was working as a rigger for
Express Energy (“Express”) on an offshore platform located at High
Island 135. (Rec. Doc. No. 38-1 at 1). The platform was located on
the Outer Continental Shelf in the Gulf of Mexico, approximately
five hours from Galveston, Texas. Id. Pyramid GOM, Inc., contracted
Express to perform a “plug and abandon” operation on the platform.
(Rec. Doc. No. 34-1 at 2). At the time of the incident in question,
Plaintiff was working a tour on the platform with three other
Express employees.1 Id.
Deltide was a co-independent contractor hired by ACS to
perform mechanical cutting on the same offshore platform.2 Id. On
August 10, 2010, two Deltide employees, Supervisor Darren Wallace
and Rick Clawson, were working on the platform. Id.
During that day, Plaintiff and another Express employee,
Scotty Brien, assisted Darren Wallace, a Deltide employee, in
moving a slip plate to continue work on the well.3 (Rec. Doc. No.
38-1 at 2). Plaintiff alleges that at the time, in accordance with
Supervisor Randy Hilbun’s testimony of the same, Express was on the
platform “to assist Deltide in doing its job.”4 Id. at 4. Plaintiff
further alleges that Brien and Deltide’s Supervisor, Wallace,
discussed how the 300 lb. plate would be moved beforehand. (Rec.
Doc. No. 38 at 4). While the three men were moving the plate, Brien
and Wallace lost their grip, and the plate slipped out of their
hands. Id. at 5. Plaintiff claims the men dropped the plate because
1
Supervisor Randy Hilbun, (Rec. Doc. No. 38-1 at 6), and employees Mike
Howard, and Scotty Brien were also working on the platform at the time. (Rec.
Doc. No. 34-1 at 2).
2
“Mechanical cutting” involves removing caissons from abandoned wells by
mechanical means. (Rec. Doc. No. 38 at 3).
3
Plaintiff claims that Deltide “enlisted” his assistance to manually move
the slip plate. (Rec. Doc. No. 38-1 at 2). However, Deltide asserts it “did not
supervise [Plaintiff], no one from Deltide told him to move the slip plate and
he received no instruction from Deltide on how to do the job.” (Rec. Doc. No. 42
at 6).
4
Plaintiff asserts that “[a]n ongoing arrangement existed between Deltide
and Express Energy whereby Express Energy would provide rigging assistance to
Deltide under its direction.” (Rec. Doc. No. 38-1 at 3).
2
Wallace did not use proper lifting techniques. Id. at 5, 7. Because
he was still supporting the 300 lb. plate when the other men
dropped it, Plaintiff claims he sustained a back injury. (Rec. Doc.
No. 38-1 at 6).
Plaintiff originally filed suit on January 14, 2011, against
his employer, Express. Rec. Doc. No. 34-1 at 2). In his Complaint
(Rec.
Doc.
No.
1),
Plaintiff
sought,
inter
alia,
wages
and
maintenance and cure, claiming seaman status under the Jones Act.
(Rec. Doc. No. 34-1 at 2). On June 27, 2011, Plaintiff filed a
Supplemental and Amending Complaint (Rec. Doc. No. 10), listing
Deltide as a defendant. On February 1, 2012, Express filed a Motion
for Summary Judgment. (Rec. Doc. No. 20). Plaintiff did not oppose
the Motion, which was granted by this Court on February 13, 2012.
(Rec. Doc. No. 22).
On June 6, 2012, Deltide moved for summary judgment. (Rec.
Doc.
No.
34).
Plaintiff
subsequently
filed
a
Memorandum
in
Opposition (Rec. Doc. No. 38) to Deltide’s Motion for Summary
Judgment on June 29, 2012. On July 9, 2012, Deltide filed its Reply
(Rec. Doc. No. 42).
CONTENTIONS OF MOVANT-DELTIDE
Deltide contends it is entitled to summary judgment, because
no genuine issues of material fact exist. Specifically, Deltide
asserts that it did not owe a duty to Plaintiff and that it did not
breach any duty to Plaintiff under Louisiana or Texas law. (Rec.
3
Doc. No. 34 at 5). For these reasons, Deltide requests that this
Court grant its Motion for Summary Judgment. Id. at 8-9.
In its Reply, Deltide maintains its assertion that no genuine
issue of material fact exists and that it is entitled to summary
judgment as a matter of law. (Rec. Doc. No. 42 at 2). Deltide
relies on witness testimony to support the contention that its
employee did not supervise, control, or instruct Plaintiff with
respect to moving the plate. Id. at 8.
CONTENTIONS OF RESPONDENT-PLAINTIFF
Plaintiff contends that several genuine issues of material
fact exist and that Deltide is not entitled to summary judgment.
(Rec. Doc. No. 38-1). Plaintiff, also relying on witness testimony,
asserts that Deltide had authority and enlisted Express employees
to move a slip plate. Id. at 4-5. Further, Plaintiff asserts that
a Deltide employee negligently dropped one end of the 300 lb. slip
plate while he was still holding it, and the shift in weight caused
Plaintiff to sustain a back injury. Id. at 6. For these reasons,
Plaintiff claims that Deltide owed him a duty of reasonable care
and that Deltide breached that duty. Id. at 6-7. Accordingly,
Plaintiff requests that Deltide’s Motion for Summary Judgment be
denied. Id. at 7.
LAW AND ANALYSIS
A. Standard of Review
Summary judgment is proper if the pleadings, depositions,
4
interrogatory
answers,
and
admissions,
together
with
any
affidavits, 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.
Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986).
would
allow
nonmovant.
(1986).
a
A genuine issue exists if the evidence
reasonable
jury
to
return
a
verdict
for
the
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
Although the Court must consider the evidence with all
reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial.
Webb v. Cardiothoracic
Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The nonmovant must go beyond the pleadings and use affidavits,
depositions, interrogatory responses, admissions, or other evidence
to establish a genuine issue.
Id.
Accordingly, conclusory
rebuttals of the pleadings are insufficient to avoid summary
judgment.
Travelers Ins. Co. v. Liljeberg Enter., Inc. 7 F.3d
1203, 1207 (5th Cir. 1993).
B. Summary judgment is not proper at this time because there are
genuine issues of material fact concerning whether Deltide, or its
employee(s), instructed Plaintiff to help move the slip plate.
First, there are genuine issues of material fact regarding
whether Deltide breached its duty of reasonable care to Plaintiff.
This question is largely contingent upon a determination as to
whether Deltide instructed or encouraged Plaintiff to move the slip
5
plate at issue.
As such, if Deltide instructed Plaintiff, during
the course of them working together, to assist in lifting the slip
plate then a duty was created. Deltide submits that Texas law is
applicable5 and that such law holds that “a person is under no duty
to control the conduct of another even if he has the practical
ability to exercise such control”6 and “ . . . in the absence of a
relationship between the parties giving rise to the right of
control, one person is under no legal duty to control the conduct
of another, even if there exists a practical ability to do so.”7
Moreover, we recognize that pursuant to Texas law “[a] duty arises
if the general contractor retains control over the manner in which
the independent contractor performs its work.” Guidry v. Fairways
Offshore Exploration, Inc., 2008 U.S. Dist. LEXIS 78884 (S.D. Tex.
Sept. 2008) (citing Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d
at 783 (Tex. 2001)). We further recognize that ”[t]o prove control
in absence of a contractual agreement, the employee must show the
contractor ‘actually exercised control over the manner in which the
independent contractor's work was performed.’" Id.
Here, that is
exactly what the factual dispute is centered upon.
Plaintiff contends that there was an “ongoing arrangement . .
5
Deltide contends that Texas law is applicable because the platform at
issue was located approximately five hours outside of Galveston, Texas. (Rec.
Doc. No. 34-1).
6
Whitney Crowne Corp. v. George Distribs., 950 S.W. 2d 82 (Tex. App.Amarillo, 1997).
7
Graff v. Beard, 858 S.W.2d 918, 920 (Tex., 1993).
6
. between Deltide and Express Energy whereby Express Energy would
provide rigging assistance to Deltide under its direction.”
Doc. No. 38, at 3)(emphasis added).
(Rec.
Plaintiff even proffers
testimony from Supervisor Randy Hilbun, in which he testified that
“[Deltide] tell[s] us what they’ve got. They tell us they’re going
to go in there and cut this and such and such . . . If we ain’t
never worked with it, he tells us how he wants it rigged up.”8
Moreover,
Plaintiff
proffers
the
testimony
of
Deltide
tool
supervisor, Bradley Darren Wallace, in which he testifies that the
Express Energy employees were there “solely to assist Deltide,” and
that Plaintiff was involved with the lifting of the slip plate
because “he was on the crew that was assisting [Wallace] in doing
what [they] had to do to do the job.”9
8
Finally, Plaintiff submits
Randy Hilbun’s testimony provides, in pertinent part:
Q: Okay. You’re saying Deltide tells you what to do and you do it?
A: And they tell us what they’ve got. They tell us they’re going to go
in there and cut this and such and such. We need to rig this up. We go out
there and rig it up. If we ain’t never worked with it, he tells us how he wants
it rigged up. (Rec. Doc. No. 38-4 Exh. 4, p. 34; 4-10).
9
Bradley Darren Wallace’s testimony provides, in pertinent part:
Q: Okay. But I guess the more precise question is that this is a standard
operation; correct? This moving of the slip plate and the slip bowl and all that
stuff?
A: Yes, sir.
Q: Okay. How did Arthur come to be involved in [the] lifting of the slip
plate?
A: Because he was on the crew that was assisting me in doing what he had
to do to do the job.
Q: Were those Express guys there solely to assist Deltide doing their job?
A: Solely to assist Deltide?
Q: I’m sorry - - yeah, yeah solely to assist Deltide.
A: At this point because we was working, yeah they was assisting us.
Q: Okay. So they’re proving assistance to Deltide as needed?
A: Yes, sir.
(Rec. Doc. No. 38-3, Exh. 3, p.35; 3-24).
7
an Express Energy Services Initial Incident Report,10 which contains
an entry that reads one of the reasons for the incident was
“conflicting instruction between Express Supervisor & Deltide
personnel.”11
As such, this evidence supports Plaintiff’s argument
that he was directed to assist in the lifting of the plate.
Alternatively,
Deltide
submits
that
Hilbun’s
testimony
supports its contention that “there is no relationship between
Express and Deltide.”(Rec. Doc. No. 42, at 2; Rec. Doc. No. 42-1,
Exh. 1, p. 42:6-8).
Here, both parties submit that the respective
deponent’s testimony supports their contradictory positions.
While we agree that as a general matter “a person is under no
duty to control the conduct of another even if he has the practical
ability to exercise such control,”12 here there are minimally
sufficient genuine issue of facts because of the record evidence
“of a relationship between the parties giving rise to the right of
control.”13
Furthermore, there is record evidence attesting to
Deltide “actually exercising control over the manner in which the
10
Deltide submits that “this form is inadmissible on summary judgment as
it is hearsay and is without foundation. Deltide moves to strike this document.”
(Rec. Doc. No. 42, at 7). However, Deltide has not filed a motion for such, and
neither does the federal electronic case management system include such an entry.
Therefore, this “motion” will not be considered at this time.
11
Moreover, the Court notes that the incident report contains an
explanation entry noting as a cause “picking up more than 50 pounds contrary to
company policy.” (Rec. Doc. No. 38-5). This arguably goes toward a breach of
the reasonable duty of care Deltide owed to Plaintiff. However, the Court will
not address that issue at this time.
12
Whitney Crowne Corp. v. George Distribs., 950 S.W. 2d 82 (Tex. App.Amarillo, 1997).
13
Graff v. Beard, 858 S.W.2d 918, 920 (Tex., 1993).
8
[Plaintiff’s] work was performed.” See Guidry v. Fairways Offshore
Exploration, Inc., 2008 U.S. Dist. LEXIS 78884 (S.D. Tex. Sept.
2008) (citing Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d at 783
(Tex. 2001)). However, Deltide disputes the existence or exercise
of such control and even relies upon some of Plaintiff’s witnesses’
testimony for the same.
Given that Plaintiff contends and proffers record evidence
supporting his contention that he was directed to assist in lifting
the slip plate at issue, and Deltide denies having authority or
exercise of such authority to do such, summary judgment is not
appropriate at this time.
Accordingly, IT IS ORDERED that Deltide’s Motion for Summary
Judgment (Rec. Doc. No. 34) is DENIED.
New Orleans, Louisiana, this 26th day of July, 2012.
_______________________________
UNITED STATES DISTRICT JUDGE
9
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