Givens v. ES & H, Inc. et al
Filing
21
ORDER & REASONS denying 10 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 8/31/2012. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TINA A. GIVENS
CIVIL ACTION
v.
NO. 12-690
ES&H, INC., ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is the defendants’ motion for summary
judgment. For the reasons that follow, the motion is DENIED.
Background
This personal injury lawsuit arises out of injuries allegedly
suffered by an oil cleanup worker. ES&H, Inc. provided emergency
spill response services to BP after the Deepwater Horizon oil
spill. To assist in performing beach cleanup in Grand Isle,
Louisiana, ES&H, in turn, contracted with Team Labor Force, LLC
(“TLF”).1 Tina Givens was employed by TLF. Her job duties included
1
ES&H contracted with TLF, which hired Ms. Givens. The
parties disagree whether ES&H was her employer or just a third
party. ES&H and TLF invoke a Master Service Agreement and a
Master Service Agreement Addendum (“the Agreement”), which they
insist shows that TLF was her “direct employer” and ES&H was her
“statutory employer” as those terms are used in the Louisiana
Workers’ Compensation Act (“LWCA”). The Agreement provides
(d) in all cases where Contractor’s [TLF’s] employees
(defined to include Contractor’s [TLF’s] direct,
borrowed, nominal, special, or statutory employees) are
covered by the Louisiana Workers’ Compensation Act, La.
1
removing liquid oil and tar balls by digging up and sifting sand.
TLF housed Ms. Givens at a hotel on Grand Isle and transported her
to and from work sites. During one of those trips to work, on
January 11, 2011, Ms. Givens was injured in an automobile accident
while riding in a TLF van. After that, TLF restricted her work
duties.
As a result of her injury, between January 11 and March 24,
2011, Ms. Givens was no longer performing beach technician work.
Rather, TLF required her to organize and check both cargo and crew
that were loaded for transport from vessels onto the beach work
sites. On March 24, 2011, while she was working as a cargo checker
for the loading and unloading of vessels, Ms. Givens had a second
accident: TLF instructed her to board ES&H’s vessel, the MS.
REBECCA, located on navigable waters near Grand Isle in order to be
transported to a nearby island beach for clean up work. While Ms.
Givens was standing at the aft of the vessel near the closed engine
room hatch, an ES&H worker was standing behind her when he opened
the engine room hatch without warning. She turned to enter the
R.S. § 23:1020 et. seq. Company [ES&H] and Contractor
[TLF] agree that all work performed by Contractor [TLF]
and its employees pursuant to the Agreement are an
integral part of, and are essential to, the ability of
Company [ES&H] to generate Company’s [ES&H’s] goods,
products, and services for the purposes of La. R.S. §
23:1061(A)(1) and that Company [ES&H] is entitled to the
protections afforded a statutory employer or special
employer (as defined in La. R.S. § 23:1061) of
Contractor’s [TLF’s] employees...
2
cabin of the vessel and fell into the open hatch of the engine
room. As a result, Ms. Givens allegedly suffered severe and
debilitating injuries to her left leg, arms, neck and back. TLF
fired her weeks later, on May 13, 2011, after she requested
additional medical treatment.
Ms.
Givens
Louisiana
filed
workers’
compensation
claims
with
the
Office of Workers’ Compensation for the accident on
January 11, 2011, and the accident on March 24, 2011. She also
filed a claim with the U.S. Department of Labor, Office of Workers’
Compensation Programs, Longshore Division, for the March 24 fall.
TLF and its insurance carrier defended that case and participated
in discovery. ES&H, however, failed to participate and also failed
to respond to subpoenas issued through the Louisiana Office of
Workers’ Compensation.
On
February
14,
2012,
the
Louisiana
Office
of
Workers’
Compensation determined that, in regard to both accidents, Ms.
Givens was injured within the course and scope of her employment
with TLF. As a result, she received workers’ compensation benefits.
On March 24, 2012, shortly after the Louisiana Office of
Workers’ Compensation published its order, Ms. Givens sued TLF, her
employer, and ES&H, as the owner/operator of the vessel, the MS.
REBECCA. Plaintiff invoked this Court’s maritime jurisdiction
pursuant to the federal general maritime laws and, alternatively,
presents an admiralty claim falling within Rule 9(h) of the Federal
3
Rules of Civil Procedure. According to Ms. Givens, TLF’s and ES&H’s
maritime negligence caused her to fall and sustain injuries.2
Defendants now seek summary relief on the ground that her exclusive
remedy is worker’s compensation.
I. Standard for Summary Judgment
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute 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.
2
See Celotex Corp. v. Catrett,
Plaintiff does not pursue a Jones Act claim against TLF;
she concedes that she is not a seaman.
4
477 U.S. 317, 322-23 (1986).
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 (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.
Invoking the Louisiana Workers’ Compensation Act’s exclusive
remedy provision, defendants urge the Court to recognize that
plaintiff is barred from bringing these claims. The sole issue
presented by defendants’ motion for summary judgment is whether the
state workers’ compensation law precludes plaintiff from asserting
a general maritime claim.
The text of the statute’s exclusive remedy clause provides
that the remedies granted to an employee on account of an injury
for which she is entitled to compensation under the LWCA are
exclusive of other remedies and claims for damages “unless such
rights, remedies, and damages are created by statute... expressly
establishing same as available to such employee... as against [her]
5
employer...
for
said
injury....”
LSA-R.S.
23:1032(A)(1).
The
language of the statute itself clearly instructs that the law’s
exclusive remedy protections are not absolute. More importantly, as
plaintiff points out, the U.S. Constitution grants exclusive and
original jurisdiction to the federal district courts over all
maritime claims. Indeed, the Fifth Circuit follows long-standing
U.S.
Supreme
Court
precedent
refusing
to
subordinate
federal
admiralty principles to the dictates of state law. Green v.
Vermilion Corp., 144 F.3d 332, 339 (5th Cir. 1998)(holding that
exclusive remedy provision of Louisiana Workers’ Compensation Act
does not preclude employee from asserting claim of negligence under
general maritime law). Even if defendants are correct that both TLF
and ES&H are employers, statutory or otherwise, under the state
statute and, therefore, shielded from prosecution under other laws,
they have failed to show how that protection shields them from
maritime claims as a matter of law in this Court.3
Accordingly, because defendants have not carried their burden,
IT IS ORDERED: that the defendants’ motion for summary judgment is
3
Defendants have submitted no reply papers and therefore do
not appear to dispute the established case literature invoked by
plaintiff. Further, defendants’ counsel failed to make even a
single reference to the applicability of general maritime law in
the four and half page memorandum supporting the motion. This
conspicuous omission could be construed as lack of candor to this
Court. Counsel are reminded of their professional obligations
under 28 U.S.C. § 1927.
6
DENIED.
New Orleans, Louisiana, August 31, 2012
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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