Lejeune v. Production Services Network U.S., Inc. et al

Filing 155

ORDER AND REASONS granting 96 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIMOTHY LEJEUNE

CIVIL ACTION

VERSUS

NO. 11-2482
SECTION B (5)

PRODUCTION SERVICES NETWORK
U.S., INC., BP AMERICA INC., BP
PRODUCTS NORTH AMERICA, INC.,
INTEGRATED PROJECT SERVICES LLC,
BALES ENVIRONMENTAL LLC, JOE
CATALANOTTO, O’BRIEN’S, FLORIDA
MARINE LLC, AND CHILL BOATS LLC

ORDER AND REASONS
For the reasons enumerated below, IT IS ORDERED that
BP’s opposed Motion for Summary Judgment is GRANTED.1
Cause of Action and Facts of Case
This case arises out of events stemming from the 2010
BP oil spill cleanup. Plaintiff, Timothy Lejeune, brings
this suit under the Jones Act 46 U.S.C.A. § 688 (currently
codified

at

46

U.S.C.A.

§

30104).

This

Court

has

jurisdiction under Admiralty and General Maritime Law. 28
U.S.C.A. § 1333.
Lejeune was injured aboard a vessel transporting him
from a barge to shore. He claims he was injured due to a
crewmember’s negligence or the vessel’s unseaworthiness.
Lejeune
1
2

filed

suit,

naming

See Rec. Doc. No. 96, 99, 101, 119.
Rec. Doc. No. 123, p. 6.

1

as

Defendants

2

Production

Services Network U.S., Inc. (“PSN”), BP America Inc. and BP
Products

North

America,

Inc.

(“BP”),

Chill

Boats

LLC.

(“Chill Boats”), Integrated Pro Services LLC (“IPS”), Joe
Catalanotto,

Bales

Environmental

Consulting

&

Management

LLC (“Bales Environmental”), Florida Marine LLC (“Florida
Marine”),

and

O’Brien’s

Response

Management

LLC

(“O’Brien’s”). Lejeune seeks recovery for past lost wages,
future

earning

suffering,

capacity,

mental

and

and

past

emotional

and

future:

distress,

pain

and

loss

and
of

enjoyment of life.3
Lejeune worked for a PSN subsidiary as a paramedic
aboard a barge called the DECON-1.
accident

Lejeune

asked

the

4

On the date of the

DECON-1

supervisor,

Brandon

Tune, that he, Lejeune, be transported from the barge back
to shore. Tune was employed by Bales Environmental and was
subcontracted

to

O’Brien’s.

Tune

eventually

granted

Lejeune’s request late in the evening on October 4, 2010.
Tune

assigned

Sheldon,

the

the
boat

task

to

captain

transport
of

the

Lejeune

Hydra-Sport

to

Brennan

30

(also

referred to as the “Fastboat” or “Mr. Scotty”). 5 The HydraSport was chartered and operated by Chill Boats, who also
employed Sheldon, though Sheldon took all his day-to-day

3

Id. at p. 8.
Id. at p. 3.
5
Rec. Doc. 76-1 p. 1.
4

2

orders from Tune.6 Sheldon alleges he protested Tune’s order
to transport Lejeune that evening because it was pitch dark
and the winds made the water conditions particularly rough.7
Nevertheless,

Sheldon

felt

the

trip

could

be

made,

and

complied with Tune’s order to complete the transport.
Sheldon boarded the Hydra-Sport with his deckhand and
Lejeune. Sheldon directed Lejeune to sit in the collapsible
chair found at the back of the boat. Sheldon elected to
navigate without the use of lights and relied on radar and
other electronic equipment to guide him. The Hydra-Sport
hit a wake and the impact allegedly threw Lejeune from his
seat, resulting in injuries to his neck and shoulder. 8 (The
manner in which Lejeune fell and the extent of his injuries
are disputed.) The Hydra-Sport completed the trip to shore
and left Lejeune. Lejeune carried his own bags

off the

Hydra-Sport and did not disclose his injuries to the boat’s
crewmembers.
Analysis
In cases where a motion for summary judgment is filed
preceding a bench trial, as is the case here, the presiding
judge “has the limited discretion to decide that the same
evidence, presented to him or her as trier of fact in a
6

Id. at p. 2 (citing Earl John Adams Dep. 7:1-8:6).
Brennan Sheldon Dep. 14:6-25, Oct. 24, 2013.
8
Id. at 16:7-15.
7

3

plenary

trial,

could

not

possibly

lead

to

a

different

result.” U.S. Fid. & Guar. Co. v. Planters Bank & Trust
Co., 77 F.3d 863, 866 (5th Cir. 1996).
The Court finds no genuine issue of material fact as
to

BP’s

involvement

in

the

instant

controversy.

Accordingly, summary judgment must be granted. BP cannot be
held

liable

for

crewmember

negligence

or

vessel

unseaworthiness because there is no evidence BP had control
or

responsibility

over

the

crewmembers

or

vessels

in

question. While Chill Boats and Lejeune allege “the very
complexity”

of

the

cleanup

operations

create

a

genuine

issue of material fact, the Court rejects this theory as
outcome-determinative. The record contains no evidence that
BP had control or responsibility over the crewmembers or
that BP owned or controlled any of the vessels involved.
Since BP as movant has met its burden, the nonmoving
party “must go beyond the pleadings and designate specific
facts showing that there is a genuine issue for trial.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)

(citing

Celotex,

477

U.S.

at

325).

Because

Chill

Boats and Plaintiff have failed to meet that burden with
regard to BP, judgment as a matter of law is appropriate.

4

A. Issue 1 – Crewmember Negligence
a. Vicarious Liability Under Respondeat Superior
When

analyzing

maritime

tort

cases,

federal

courts

rely on general principles of negligence law. Canal Barge
Co., Inc. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir.
2000).

“The

elements

of

a

maritime

negligence

cause

of

action are essentially the same as land-based negligence
under the common law.” Withhart v. Otto Candies, L.L.C.,
431 F.3d 840, 842 (5th Cir. 2005). One common law principle
that still carries great weight under the Jones Act is that
an employer can be vicariously liable for its employee’s
tortious

conduct

through

the

doctrine

of

respondeat

superior. Beech v. Hercules Drilling Co., L.L.C., 691 F.3d
566, 571 (5th Cir. 2012). Meaning, an employer’s liability
only extends to its employee’s tortious conduct that occurs
within

the

course

and

scope

of

employment.

Id.

at

571

(referencing Landry v. Oceanic Contractors, Inc., 731 F.2d
299, 303 (5th Cir. 1984)). It must first be established
that

the

principal

is

an

employer

of

the

employee

tortfeasor under the Jones Act. Cosmopolitan Shipping Co.
v. McAllister, 337 U.S. 783, 790

(1949) The “right” to

control

the

is

the

essence

of

employer-employee

relationship, the primary factors that define an employer’s
right to control are: selection and engagement; payment of

5

wages; power of dismissal; and power of supervision and
control. Corsair v. Stapp Towing Co., Inc., 228 F. Supp. 2d
795,

798

(S.D.

Tex.

2002).

Control

centers

around

the

amount of control “exercised over the details of the work.”
Id. at 798. Importantly, no one factor is dispositive, the
“venture

as

a

whole”

must

be

considered.

Cosmopolitan

Shipping Co., 337 U.S. at 795. Once the relationship is
established,
working

for

vicarious
their

liability

employer

may

in

apply

the

to

scope

employees
of

their

employment. See 46 U.S.C.A. § 30104.
BP cannot be held liable for vicarious liability under
the respondeat superior theory because the evidence does
not indicate BP employed any of the individuals involved in
Lejeune’s accident. BP did not have the “right” to control
Michael Bales, Tune, or Sheldon. Michael Bales was employed
by Bales Environmental; he was contracted to and paid by
O’Brien’s.

9

employer;

Bales

Bales

Environmental

Environmental

paid

then

Tune

and

subcontracted

was
Tune

his
to

O’Brien’s. 10 Tune stated he could be terminated by either
Bales Environmental or O’Brien’s. 11 Sheldon and his deckhand
were Chill Boats employees, who were subcontracted to IPS
and Florida Marine. BP did not directly pay any of the

9

Michael Bales Dep. 63:10-17, Oct. 28, 2013.
Bales Dep. 73:14-17.
11
Brandon Tune Dep. 29:6-13, June 10, 2014.
10

6

aforementioned individuals. BP did not participate in their
hiring, and no deposition testimony states BP had the right
to terminate any of the crewmembers.12
Sheldon stated that he “figured” he worked for BP, but
that

belief

employer.

13

alone

is

not

sufficient

to

hold

BP

as

his

The unclear relationships between parties may

have led to Sheldon’s belief. Occasionally he transported
individuals to the DECON-1 that, according to him, “most
likely”

worked

for

BP.

14

His

belief

is

not

sufficient

evidence to assign liability to BP when applying summary
judgment

standards.

The

Court

may

not

consider

record

statements not within a declarant’s personal knowledge. See
McFaul v. Valenzuela, 684 F.3d 564, 580 (5th Cir. 2012).
Affidavits

and

other

summary

judgment

evidence

must

be

“based on personal knowledge and not based on information
and belief.” Bolen v. Dengel, 340 F.3d 300, 313 (5th Cir.
2003); see also Richardson v. Oldham, 12 F.3d 1373, 1378
(5th Cir. 1994) (holding statements based on belief fail
the requirements of Fed. R. Civ. P. 56(e)).

12

In addition to the exhibits submitted in connection with BP’s Motion
for Summary Judgment, the Court has considered the depositions attached
to Chill Boats’ Motion for Summary Judgment (Rec. Doc. No. 153). The
depositions do not proffer new evidence that BP employed or controlled
the individuals in question. In fact, the latest evidence confirms the
Court’s contention that BP’s Motion to Dismiss should be granted.
13
Rec. Doc. No. 110-2, p. 11.
14
Sheldon Dep. 40:2-6.

7

Sheldon’s statements regarding his employment status
with BP are not based on his personal knowledge. He states
“[t]hey had BP people, from my understanding, coming over
here checking on the barges.” 15 He believed he worked for BP
solely on the basis that BP personnel were around.

His

statement draws on his understanding and belief, and not
his personal knowledge. This is similar to the defendant in
Bolen, who commented, “to the best of [his] recollection,”
that a document was timely signed. Bolen, 340 F.3d at 313.
Like

in

Bolen,

Sheldon’s

statement

expressly

came

“from

[his] understanding.”
Tune states BP representatives would be on the DECON-1
“maybe once a month;” Tune had “very little” interaction
with them, and received no directions from them. 16 In short,
neither Sheldon nor Tune can provide specific facts within
their personal knowledge that BP was responsible for or had
a right to control any individual involved in the instant
suit.
Chill Boats’ argument might be persuasive if Sheldon
stated he actually worked for BP rather than he believed he
worked for BP. Even then, Sheldon’s statements would have to
demonstrate

15
16

BP’s

capacity

to

Sheldon Dep. 40:2-23.
Tune Dep. 64:23-65:16.

8

hire,

terminate,

pay

or

control

the

method

and

means

by

which

the

individual

performed the work tasks. See Corsiar, 228 F.Supp.2d at
798. Chill Boats and Lejeune provide no such evidence. And,
the

evidence

that

is

presented

fails

summary

judgment

standards, as it relies on belief. See, e.g., Bolen, 340
F.3d at 313.
b. Vicarious Liability Under the Borrowed Servant
Doctrine
Alternatively,

Chill

Boats

argues

BP

had

ultimate

authority over the DECON-1, and thus BP had control over
Tune and Sheldon, making them BP’s “borrowed servants.” 17
There

is

no

fixed

test

to

determine

borrowed

servants;

generally the issue revolves around who had control over
the employee. Ruiz v. Shell Oil Co., 413 F.2d 310, 313 (5th
Cir. 1969). An employee of a general employer may become a
borrowed

servant

of

another

and

“[r]espondeat

superior

liability is assigned to the borrowing employer who had
control

over

the

act

in

question.”

Starnes

v.

United

States, 139 F.3d 540, 542 (5th Cir. 1998). Although the
right to control is

not dispositive, it is

the central

issue to determining borrowed employee status. See Ruiz,
413 F.2d at 313 (citing Standard Oil Co. v. Anderson, 212
U.S.
17

215,

222

(1909)).

If

Rec. Doc. No. 99, p. 6

9

the

control

analysis

is

unhelpful, other supporting factors may be considered. 18 Id.
at 313; Brown v. Union Oil Co. of Ca., 984 F.2d 674, 676
(5th Cir. 1993).
Beginning with the control analysis, the deposition
testimony shows BP did not have the right to control over
Tune or Sheldon. The right to control over Tune belonged to
Bales

Environmental.

The

right

to

control

over

Sheldon

belonged to Chill Boats, IPS, or Florida Marine.
To the extent BP did not have the right to control
over the crewmembers, actual control also fails. Michael
Bales’

testimony

companies

oversaw

repeatedly
the

states

DECON-1.

19

an

It

amalgamation

appears

no

of

single

company had complete control over the DECON-1, and orders
came from a variety of authorities.20
Chill Boats argues the complexity creates a genuine
issue of fact as to who controlled whom. Chill Boats cites
to

two

cases

that

held

the

issue

of

borrowed

employee

status is a matter of law, “but some cases involve factual
disputes and require findings by a fact-finder.” Billizon
18

(1) Who has control over the employee and the work he is performing,
beyond mere suggestion of details or cooperation; (2) whose work was
being performed; (3) was there an agreement, understanding, or meeting
of the minds between the original and the borrowing employer; (4) did
the employee acquiesce in the new work situation; (5) did the original
employer terminate his relationship with the employee; (6) who
furnished tools and place for performance; (7) was the new employment
over a considerable length of time; (8) who had the right to discharge
the employee; and, (9) who had the obligation to pay the employee.
19
Bales Dep. 27:1-8, 44:23-25.
20
Id. at 46:8.

10

v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993); see
Brown, 984 F.2d at 677.
In Brown, the parties “presented conflicting testimony
regarding who instructed Brown [the employee].” Brown, 984
F.2d at 677. Brown stated he was instructed by a supervisor
named Gulf Island, and a supervisor from another company,
Union, stated he also gave Brown instructions. Id. at 677.
These

conflicting

statements

created

a

genuine

issue

of

fact as to who instructed and controlled Brown. Here, there
is

no

conflicting

testimony

as

to

who

instructed

whom.

Sheldon states his night run order came from Tune. His
statement

is

unlike

the

factual

dispute

in

Brown.

The

record here similarly does not provide a specific occasion
where BP instructed Tune or Sheldon. In fact, from Tune’s
testimony it would appear he did not confer with anyone
regarding Sheldon’s night run.21
Furthermore, the evidence does not show BP controlled
Tune and Sheldon when considering their entire scope of
employment. BP oversaw the clean up operations from the
“Houma

Command

Center,”

along

with

O’Brien’s,

the

U.S.

Coast Guard, and other entities. The Houma Command Center
had

supervisory

authority

over

the

DECON-1

barge.

Chill

Boats argues this suggests BP had control over Tune as it
21

Tune Dep. 17:7-19:11

11

could

have

However,
states
Tune.

Tune’s

BP

22

ordered

him

from

employer,

could

have,

the

Bales

but

Houma

Command

Environmental,

generally

never

Center.

testimony

would,

order

Moreover, Michael Bales stated it is unknown who

gave orders from the Houma Command Center at any given
time.

23

When

asked

if

a

particular

company

managed

the

center Michael Bales answered “don’t know.” 24 And when asked
who the principal was at the center, he “would assume it’s
BP,”

but

acknowledged

“I

can’t

answer.”

25

An

assumption

alone is not sufficient at the summary judgment stage to
force

the

Lejeune

matter

must

to

provide

proceed

to

supporting

trial.

Chill

Boats

and

evidence

to

confirm

the

assumption to make trial appropriate. See, e.g., Sigur v.
Emerson Process Mgmt., 492 F. Supp. 2d 565, 569 (M.D. La.
2007). They have failed to do so.
We resolve factual controversies in favor of the
nonmoving party, but only when there is an actual
controversy, that is, when both parties have
submitted evidence of contradictory facts. We do
not, however, in the absence of any proof, assume
that the nonmoving party could or would prove the
necessary facts.
Little,

37

F.3d

at

1075.

Here,

there

is

an

absence

of

proof. Of the individuals deposed, it appears Michael Bales
is the most knowledgeable regarding the chain of command at
22

Bales Dep. 75:21-25.
Id. at 77:8-19.
24
Id. at 15:14-19.
25
Id. at 79:12-16.
23

12

the Houma Command Center. However, his statements above do
not create a genuine issue of material fact. 26 He explicitly
states he “do[esn’t] know” who gave orders from the center
at any particular time.27
No BP representative with supervisory authority on the
night of the alleged accident is identified in the record.
The record does not offer evidence that would: one, explain
the nature of Tune’s relationship with BP; or two, give
credence to the assertion that BP had control over Tune.
Moreover,

the

noncontractual

evidence

does

relationship

was

not
so

show

that

controlling

the

that

it

overcomes the presumption that the contractual employer had
control over the employee. See, e.g., Brown, 984 F.2d at
679; LeBlanc v. AEP Elmwood LLC, 946 F.Supp.2d 546, 552
(E.D. La. 2013).
Chill

Boats

asserts

BP

might

have

given

Tune

permission to order Sheldon’s night run. However, there is
no

evidence

incident.

BP

Chill

ordered
Boats’

Tune

the

assertion

night
is

of

Lejeune’s

speculative.

Its

assertion implies that Tune first checked with a supervisor
before

permitting

the

night

26

run,

and

the

theoretical

In fact, the most recent depositions, submitted with the more recently
filed motion for summary judgment, suggest Tune did not receive any
orders from the center regarding Lejeune’s transportation. He would
generally have orders disseminate from Michael Bales. See Tune Dep.
62:11-64:19.
27
Tune Dep. 77:8-21.

13

supervisor
states

was

a

Tune

Extrapolations

BP

employee.

conferred
like

these

trial——“unsubstantiated

No

with
are

deposition
another

testimony
individual.

not

sufficient

to

require

assertions,

improbable

inferences,

and unsupported speculation” are insufficient to defeat a
motion for summary judgment. Brown v. City of Hous., 337
F.3d 539, 541 (5th Cir. 2003); see also Little, 37 F.3d at
1075. Accordingly, the Court finds the deposition testimony
does not create a genuine issue of material fact as to
whether BP ordered the night run or gave Tune permission to
order the run, and Chill Boats’ supposition to the contrary
is rejected.
The deposition testimonies do not show BP had control
over Tune or Sheldon the night of Lejeune’s injury or in
general. No testimony provides a specific example where BP
instructed Tune or Sheldon, and thus the evidence does not
create a genuine dispute of material fact.
Even

though

the

control

test

appears

decisive,

the

Court has considered the other borrowed servant factors.
See Brown v. Union Oil Co. of Ca., 984 F.2d 674, 676 n.12
(5th Cir. 1993). Only one factor supports BP’s involvement,
which is that, ultimately, BP’s work was being performed,
i.e.

the

cleanup

of

the

BP

spill.

However,

the

other

factors are more attributable to an intermediary other than

14

BP.

The

control

test

and

other

factors

weigh

against

borrowed employee status, and like in Brown, “the remaining
factors do not overwhelmingly” show that Tune or Sheldon
were borrowed employees. Brown v. Union Oil Co. of Ca., 984
F.2d at 678.
In sum, the evidence regarding the important borrowed
servant questions (such as who had contractual and actual
control over the crew) point to an intermediary other than
BP. Chill Boats’ does not offer specific evidence of BP’s
control. The same conclusion, that BP is not a borrowing
employer,

is

reached

when

considering

the

supporting

factors. Accordingly, there is no evidence that Tune or
Sheldon were BP’s borrowed employees.
Issue 2 – Vessel Unseaworthiness
Lejeune claims BP, or others, failed to provide him
with

a

seaworthy

vessel

to

transport

him

to

shore.

He

claims the Hydra-Sport was unseaworthy as its collapsible
chair was not properly equipped with a safety harness or
restraint.

Seaworthiness

is

a

non-delegable

duty

that

extends only to the owner of a vessel. 46 U.S.C.A. § 30505;
see, e.g., In Re Signal Int'l, LLC, 579 F.3d 478, 498 (5th
Cir.

2009)

(holding

a

vessel

owner

has

an

absolute

nondelegable duty to provide a seaworthy vessel). Here, BP
did not own, charter, or lease the Hydra-Sport. Thus BP
15

cannot

be

held

unseaworthiness

liable

because

for

that

duty

the

vessel’s

belongs

solely

alleged
to

the

Motion

for

vessel’s owner.
For

the

reasons

enumerated

above,

BP’s

Summary Judgment28 is GRANTED.

New Orleans, Louisiana, this 18th day of July, 2014.

UNITED STATES DISTRICT JUDGE

28

Rec. Doc. No. 96

16