Mount v. Apache Corporation

Filing 30

ORDER & REASONS granting 17 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 1/9/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID MOUNT

CIVIL ACTION

VERSUS

NO. 11-3003

APACHE CORPORATION

SECTION “F”
ORDER AND REASONS

Before the Court is Apache Corporation’s motion for summary
judgment.

For the reasons that follow, the motion is GRANTED.
Background

This dispute arises out of personal injuries that were
allegedly sustained while working aboard a vessel.
On January 18, 2011, David Mount slipped and fell while
performing his duties on the deck of the SP 65A platform, which
is owned by Apache Corporation.

Mr. Mount alleges that he

slipped in condensate, measuring approximately one and a half
feet in diameter, from the fuel gas filter located near the
compressor.1

The fuel gas filter has no automatic system in

place to drain accumulated condensate and, therefore, it must be
manually drained.

There is also no level controller or float

device that shuts off the filter in the event of accumulating
condensate.

The record indicates that no member of the platform

1

The filtered fuel gas is used to operate the platform
compressor unit, which compresses oil and gas for insertion into
the pipeline.
1

crew had been assigned to manually drain the filter because of
condensate buildup.2
At the time of the accident, Mr. Mount was employed by
Island Operating Company as a “B” Operator.

Pursuant to a

contract entered into in 2003, Island agreed to provide Apache
with personnel to operate its oil and gas platforms.

Mr. Mount

was assigned to Apache’s SP 65A platform, and was part of a fourperson crew that worked on the rig in seven-day periods.

The

four-person crew consisted of three Island employees (Mr. Mount,
Ronald J. Stump, and George Raylon Parsons) and one Apache
employee (Keith Deville); Mr. Deville, the Apache employee, was
the “Person in Charge” on the Apache platform.

As a result of

the fall on January 18, Mr. Mount allegedly sustained injuries
and reported the incident to Mr. Deville.

An Apache Offshore

Loss Occurrence Report was completed the following day on January
19, 2011.
On December 6, 2011, Mr. Mount sued Apache in this Court,
alleging claims of negligence under the Longshore and Harbor
Workers’ Compensation Act.

Apache now moves for summary judgment

on plaintiff’s claims.
I. Legal Standard
Federal Rule of Civil Procedure 56 instructs that summary

2

Defendant contends that condensate buildup is a rare
occurrence on any platform in the Gulf of Mexico.
2

judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.

See Matsushita Elec.

Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986).

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, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See id.

Therefore, "[i]f the evidence is merely

colorable, or is not significantly probative," summary judgment
is appropriate.

Id. at 249-50 (citations omitted).

Summary

judgment is also proper if the party opposing the motion fails to
establish an essential element of his case.
Catrett, 477 U.S. 317, 322-23 (1986).

See Celotex Corp. v.

In this regard, the non-

moving party must do more than simply deny the allegations raised
by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents do not qualify as competent opposing evidence.
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549

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(5th Cir. 1987).

Finally, in evaluating the summary judgment

motion, the Court must read the facts in the light most favorable
to the non-moving party.

Anderson, 477 U.S. at 255.
II.

Discussion

Defendant contends that summary judgment is appropriate
because plaintiff was a borrowed employee at the time of the
accident.

The Court agrees.
A.

Under the Longshore and Harbor Workers Compensation Act,
workers’ compensation is the exclusive remedy for an employee
against his employer.

See 33 U.S.C. § 905(a) (2006).

The Fifth

Circuit has extended this tort immunity provision to include
borrowing employers under the “borrowed employee” doctrine.
Total Marine Servs., Inc. v. Dir., Office of Worker’s Comp.
Programs, 877 F.3d 774, 777 (5th Cir. 1996).

If the plaintiff

was a borrowed employee, then Apache would be free from
liability.
The Fifth Circuit has articulated nine factors for a
district court to consider in determining whether a borrowed
employee relationship exists:
(1) Who has control over the employee and the work he is
performing, beyond mere suggestion of details or
cooperation?
(2) Whose work is being performed?
(3) Was there an agreement, understanding, or meeting of
the minds between the original and the borrowing
employer?
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(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?
(9) Who had the obligation to pay the employee?
Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir. 1969); see
also Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1244 (5th Cir.
1988).

No one factor is dispositive; however, courts place the

most emphasis on the first factor, which examines the amount of
control over the employee.

Brown v. Union Oil Co. of Cal., 984

F.2d 674, 676 (5th Cir. 1993); Melancon, 834 F.3d at 1244-45.
Borrowed employee status is a question of law, but the ninefactor analysis needed to answer that question is fact-driven;
summary judgment is appropriate if no genuine issue exists as to
any of the facts concerning each factor.

Melancon, 834 F.3d at

1244; Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617
(5th Cir. 1986).
B.
The Court finds that the defendant has carried its burden
for summary judgment on borrowed employee status:
(1) Who had control over the employee and the work he is
performing?
Defendant asserts that Keith Deville, Apache’s Person in
Charge, controlled plaintiff and the work he was performing.
5

Plaintiff contends that Raylon Parson, an Island operator, was
his supervisor and, therefore, Apache did not have control over
him.

For support, plaintiff points to the record in which he

testified that his lead operator was Raylon Parson when the
accident happened; however, plaintiff later testified that
Apache’s Person in Charge, Keith Deville, was the “main guy out
there that was, you know overseeing everything.”

Moreover,

plaintiff later stated that Mr. Deville was the person who made
the decisions on the platform as to what work needed to be done.3
The relative rank of borrowed employees as to each other is
not the inquiry; rather, the issue is whether all borrowed
employees are under the control of the borrowing employer.

The

record reveals that all three of the Island operators, including
plaintiff, received their daily instructions as to what work is

3

The record clearly indicates that Apache was in control of the
plaintiff and the work he was performing:
Q: Let’s just take, for example, one platform function
that’s done pretty regularly, like MMS testing.
A: Uh-huh.
Q: You did MMS testing?
A: Yes, sir.
Q: If there was going to be MMS testing done on the
platform at a given time, who made that decision to do
the MMS testing?
A: Apache–well, Keith–
Q: Keith Deville?
A: Keith. He would line Raylon up with what, you know,
what needed to be done, then Raylon would send me and the
other guy out there, you know.
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to be performed from Apache.4

Plaintiff himself unequivocally

stated that “everything went through [Keith], you know, before
you did anything.”

According to the record, if any problems

arose, the Island operators were to notify the Apache Person in
Charge.

In fact, plaintiff testified that he reported the

accident in question to Mr. Deville “because he was the PIC.”

An

Apache Offshore Loss Occurrence Report was completed in
connection with plaintiff’s accident, and the form lists Mr.
Deville as the immediate supervisor.

Moreover, while on the SP

65A platform, Island operators had to read and sign the Apache
operations manual, and all operators were required to follow
Apache’s safety procedures.

Island operators even had to attend

weekly Apache safety meetings conduced by Apache supervisory
personnel.

Further, Apache supervisors ranked above Mr. Deville

would also make periodic visits to the platform to oversee the
work of all Island operators.

During the course of their work,

Island operators were required to complete various Apache charts

4

Regarding day-to-day duties, the deposition testimony of Raylon
Parsons states that he would do “whatever Keith Deville decided
[he] needed to do.”
Q: When would [Keith] tell you what to do?
A: First thing in the morning and all during the day
because, I mean, Keith was a hands-on person. He was out
with us doing the jobs. As he saw a task coming up, he
would–you know, as we would finish a job, he would
reassign job duties, I mean.
Q: How often would there be a reassignment of job duties?
A: Maybe twice a day.
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and checklists.
Even construing the facts in a light most favorable to the
plaintiff, the Court cannot find, based on this record, a genuine
dispute of material fact as to who controlled the plaintiff and
the work he was doing.

This factor weighs in favor of the

borrowed employee status.
(2) Whose work was being performed?
Apache was the owner of the SP 65A platform.

As such, there

is no genuine dispute that it was Apache’s work being done.

This

factor also lends support to the existence of a borrowed employee
relationship.
(3) Was there an agreement or understanding between Island
Company and Apache as to the employee’s status?
The contract between Island and Apache states that Island is
to be an independent contractor.

The Fifth Circuit has expressly

stated that “parties to a contract cannot automatically prevent a
legal status like ‘borrowed employee’ from arising merely by
saying in a provision in their contract that it cannot arise.”
Melancon, 834 F.2d at 1245.

“The parties’ actions in carrying

out the contract can impliedly modify or waive the express
provision.”

Brown, 984 F.2d at 677-78.

The Court finds that Apache both impliedly modified the
contract through its actions (that is, directed the plaintiff’s
day-to-day activities, provided plaintiff with food and lodging,
transported plaintiff to and from the platform), and expressly
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modified the contract by a letter agreement dated July 10, 2007,
which amended the 2003 master contract between Island and Apache
to include a provision that directly stated that Apache was the
statutory employer of Island employees.

See Billizon v. Conoco,

Inc., No. 91-2749, 1992 WL 516078, at *2 (E.D. La. Sept. 30,
1992) (finding that the defendant’s actions of supervising
plaintiff’s work, providing food and lodging, and transporting
plaintiff to and from shore sufficient to modify the contract
provision); see also Melancon, 834 F.2d at 1245 (finding that the
plaintiff’s original employer clearly understood that the
plaintiff would be taking his instructions from the borrowed
employer, notwithstanding the contract’s independent contractor
provision).

This factor also favors borrowed employee status.

(4) Did plaintiff acquiesce in the new work situation?
The focus of this factor is whether the employee was aware
of his work conditions and chose to continue working in them.
Brown, 984 F.2d at 678; Melancon, 834 F.2d at 1246.

Here,

plaintiff began working on the SP 65A shortly after he was hired
by Island in November 2008.

At that time, SP 65A was owned by

another company, but Apache later acquired the platform on
October 1, 2010, which was three and half months before
plaintiff’s accident.

In that time period, it is undisputed that

plaintiff worked in seven-day periods on the platform and never
once complained about his working conditions.

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Melancon, 834 F.2d

at 1246 (holding that plaintiff acquiesced in his work situation
because he made no complaints about the working conditions).
Moreover, the Fifth Circuit has expressly stated that one month
is a sufficient amount of time for an employee to appreciate his
new work conditions, and plaintiff surpasses such a time period
here.

Brown, 984 F.2d at 678; see also Capps, 784 F.2d at 616-17

(finding one day sufficient for plaintiff to acquiesce to the
work conditions because he was employed by a company that
constantly sent him into new work environments).

Therefore, no

genuine dispute exists that Mr. Mount acquiesced to his working
conditions, and this factor also supports the borrowed employee
status.
(5) Did Island relinquish control over the plaintiff?
This inquiry does not require a lending employer to
completely sever its relationship with the employee, because such
a requirement would effectively eliminate the borrowed employee
doctrine as there could never be two employers.
at 617.

Capps, 784 F.2d

Rather, the focus should be on the “lender employer’s

relationship with the employee while the borrowing occurs.”
at 618.

Id.

Island’s control over Mr. Mount was nominal at most

while Mount worked for Apache.

Moreover, if an Island operator

needed to leave the platform before his seven-day period was
over, he had to notify and obtain permission from his Apache
supervisor, not Island.

Island also had little knowledge

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regarding Mr. Mount’s daily work performance and
responsibilities.

See Allen v. Texaco, Inc., No. 99-1456, 2001

WL 611391, at *6 (E.D. La. June 5, 2001) (finding that the
original employer relinquished control because it had little
knowledge about plaintiff’s daily activities, performance, and
responsibilities, and the occasional phone call or visit did not
defeat such a finding); Hardin v. Conoco, Inc., 712 F. Supp.
1240, 1244 (W.D. La. 1989) (holding that the original employer
terminated its relationship with the plaintiff even though the
plaintiff had to deliver his time sheet and pick up his check
from the original employer).

Thus, no genuine dispute exists

that Island relinquished control over the plaintiff, and this
factor favors the borrowed employee status.
(6) Who furnished the plaintiff’s tools and place to work?
The balance on this factor also heavily tips in favor of
Apache, because Apache provided all the necessary equipment and
tools for Mr. Mount to use while working.

Moreover, Apache

provided the place for performance, transportation to and from
the platform, and all meals and sleeping accommodations.

Brown,

984 F.2d at 679.
(7) Was the employment over a considerable length of time?
The Fifth Circuit has held that when the length of
employment is considerable, this factor supports a finding that
the employee is a borrowed employee.

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Capps, 784 F.2d at 618.

Here, plaintiff worked exclusively on the SP 65A platform for
approximately one year; three and a half months of this period
Apache owned the platform.

Courts have not defined what

constitutes a considerable length of time, but, as previously
mentioned, courts have found one month of employment (and even
one day of employment) sufficient to find a borrowed employee
relationship.
616-17.

See Brown, 984 F.2d at 678; Capps, 784 F.2d at

Therefore, the Court finds that this factor lends

support to the borrowed employee status.
(8) Who had the right to terminate the plaintiff?
This inquiry focuses on whether the borrower has the right
to terminate the borrowed employee’s services.
F.2d at 1246; Capps, 784 F.2d at 618.

See Melancon, 834

The record establishes

that Apache had the right to discharge Island operators from the
platform if Apache was dissatisfied with their work.
could also ask for a replacement Island operator.

Apache

No genuine

dispute exists as to this factor.
(9) Who paid the plaintiff?
Fifth Circuit precedent provides that this factor supports a
finding of the borrowed employee status when the original
employer is reimbursed by the borrowing employer for the services
of the employee.

See, e.g., Brown, 984 F.2d at 679; Melancon,

834 F.2d at 1246; Capps, 784 F.2d at 618; Robertson v. Blanchard
Contractors, Inc., No. 11-1453, 2012 WL 6202988, at *8 (E.D. La.

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Dec. 12, 2012); Billizon, 1992 WL 516078, at *3.

Here, Island

operators received their checks from Island, but Apache
reimbursed Island and approved the pay scale for each operator.
Based on this record, no genuine dispute exists as to this
factor.
In sum, the Court finds that there are no genuine issues of
material fact as to the borrowed employee status of Mr. Mount.
His situation fits squarely within the precedent of this Circuit
for granting summary judgment on the issue of borrowed employee
tort immunity.
at 617;

See Brown, 984 F.2d at 678 n.5; Capps, 784 F.2d

Jones v. Coastal Cargo Co., No. 10-4383, 2011 WL

3654397, at *3-4 (E.D. La. Aug. 19, 2011); Billizon, 1992 WL
516078, at *4.

Accordingly, the defendant’s motion is GRANTED.

New Orleans, Louisiana, January 9, 2013

____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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