Bennett, Jr. v. Hudson Services, Inc. et al

Filing 47

ORDER AND REASONS granting 41 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 9/20/2012. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BARRY BENNETT, JR.

CIVIL ACTION

VERSUS

NO: 11-101

JOHN DOE, HUDSON SERVICES,

SECTION: R

INC. AND SHELL OIL COMPANY

ORDER AND REASONS
Before the Court is defendant Shell Oil Company’s unopposed
motion for summary judgment.

Because no genuine issues of

material fact exist as to Shell’s liability for plaintiff’s
accident, the Court GRANTS Shell’s motion for summary judgment.

I.

BACKGROUND
This dispute arises out of plaintiff Barry Bennett’s

accident on a platform owned by Shell Oil Company. On January 10,
2010, plaintiff was working for Weatherford International, Inc.
on its plug and abandonment rig, which had been installed on top
of Shell’s platform so that Weatherford employees could plug the
Shell well.1 Plaintiff was injured when a chain attached to a

1

R. Doc. 1-1 at 2.

casing saw broke loose and struck his shoulder and chest.2
Bennett alleges that the negligence of the saw operator, an
employee of Hudson Services, Inc., caused the accident.3 Bennett
filed the present suit to recover damages on December 16, 2011 in
the 40th District Court for the Parish of St. John the Baptist.4
Defendants removed the suit to this Court on January 18, 2011.5
Shell now moves for summary judgment, asserting that it is not
liable for any negligent acts by Weatherford or Hudson, because
1) the companies were hired as independent contractors and 2)
Shell was not independently negligent.6 In response, Bennett
states that he does not oppose the motion and will no longer
pursue his claims against Shell.7

II.

STANDARD
Summary judgment is appropriate when “the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

2

R. Doc. 1-1 at 2-3.

3

Id. at 3.

4

R. Doc. 41-1 at 2.

5

R. Doc. 1.

6

R. Doc. 41.

7

R. Doc. 44.
2

(1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994).

When assessing whether a dispute as to any 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);
Little, 37 F.3d at 1075.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
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.

See,

e.g., id. at 325; Little, 37 F.3d at 1075; Isquith ex rel.
Isquith v. Middle South Utils., Inc., 847 F.2d 186, 198 (5th Cir.
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1988), cert. denied, 488 U.S. 926 (1988). Although a nonmovant’s
failure to respond to a motion for summary judgment does not
permit the entry of a “default” summary judgment, the court may
accept the movant’s evidence as undisputed. Eversley v. Mbank
Dallas, 843 F.2d 172, 174 (5th Cir. 1988).

III. DISCUSSION
Shell contends that its relationship with Weatherford,
plaintiff’s employer, is governed by the terms of a 2011 Master
Service Agreement.8 The agreement states:
CONTRACTOR shall be an independent CONTRACTOR with
respect to the performance of WORK under this CONTRACT,
[Shell]’s principal interest or concern being the
completed and finished WORK rather than the details and
manner of performance. Neither CONTRACTOR nor its
SUBCONTRACTORS shall be deemed for any purpose to be
the agent or representative of [Shell] for any WORK
performed herein. [Shell] further reserves no right to
supervise or control the details of the WORK provided
by CONTRACTOR or its SUBCONTRACTORS.9
Under the terms of the agreement, Weatherford took full
responsibility for the safety of any work performed.10 Shell also
executed a “P&A Services/Rental Agreement” with Hudson, which
owned and operated the machinery that allegedly caused Bennett’s
accident. The agreement identifies Hudson as solely responsible

8

R. Doc. 41-4.

9

Id. at 41.

10

Id. at 13.
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for compliance with safety regulations11 and states, “Vendor
shall be an independent VENDOR with respect to the performance of
work or services under this agreement. . . . [Shell] further
reserves no right to supervise or control the details of the work
or services provided by VENDOR or its contractors.”12
Under Louisiana law,13 a principal is not liable for the
negligent acts of its independent contractor, unless (1) the work
performed by the contractor is ultrahazardous or (2) the
principal retains operational control over the contractor’s
actors or expressly or impliedly authorizes their acts. See
Coulter v. Texaco, Inc., 117 F.3d 909, 911–12 (5th Cir. 1997);
LeJeune v. Shell Oil Co., 950 F.2d 267, 270 (5th Cir. 1992). The
Fifth Circuit has held that drilling operations are not
ultrahazardous. Ainsworth v. Shell Offshore Co ., 829 F.2d 548,
550 (5th Cir. 1987). Therefore, Shell’s liability rests on
whether it retained operational control over or authorized the
activities that allegedly led to Bennett’s injuries.
To determine whether the operational control exception
applies, the Court first must examine “whether and to what extent
the right to control work has been contractually reserved by the

11

R. Doc. 41-5 at 15.

12

Id. at 27.

13

The application of Louisiana law to Bennett’s claims,
pursuant to the Outer Continental Shelf Lands Act (OCSLA), is not
in dispute. See 43 U.S.C. § 1333(a)(2)(A).
5

principal.” Coulter, 117 F.3d at 912 (citing Graham v. Amoco Oil
Co., 21 F.3d 643, 645–46 (5th Cir. 1994); Ainsworth, 829 F.2d at
549–51). Here, the agreements that Shell executed with
Weatherford and Hudson both provide that Weatherford and Hudson
are independent contractors and that they are responsible for
safety compliance.14 The agreements state that Shell does not
reserve the right to supervise or control the work done by the
contractors.15 Thus, by the terms of the agreements, it is
evident that Shell did not have the right to monitor the
activities of Weatherford or Hudson.
Moreover, there is no evidence that Shell expressly or
impliedly ordered either company to engage in unsafe work
practices. Therefore, the operational control exception to a
principal’s general lack of liability does not apply in this
case, and Shell is not liable for any negligent acts by
Weatherford or Hudson. See Coulter, 117 F.3d at 912. (“[A]bsent
an express or implied order to the contractor to engage in an
unsafe work practice leading to an injury, a principal . . .
cannot be liable under the operational control exception.”).
Further, because no evidence has been put forth concerning any
independent, negligent acts by Shell, Shell cannot be held liable
for plaintiff’s injuries.

14

R. Doc. 41-4 at 13, 41; 41-5 at 15; 27.

15

R. Doc. 41-4 at 41; 41-5 at 27.
6

IV.

Conclusion
For the foregoing reasons, the Court GRANTS defendant’s

motion for summary judgment and dismisses the claims against
Shell with prejudice.

New Orleans, Louisiana, this 20th day of September, 2012.
___

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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