Bittel v. Chevron U.S.A. Inc. et al

Filing 65

ORDER & REASONS that defendant Chevron USA Inc.'s 52 Motion for Summary Judgment is DENIED. Signed by Judge Eldon E. Fallon on 8/12/14. (dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

THOMAS BITTEL

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versus
CHEVRON U.S.A. INC, ET AL.

CIVIL ACTION
No. 13-149
SECTION “L” (3)

ORDER & REASONS

Before the Court is a motion for summary judgment filed by Defendant Chevron U.S.A.
Inc. (“Chevron”). (Rec. Doc. 52). The Court has reviewed the briefs and the applicable law and,
having heard oral argument on the motion, now issues this Order & Reasons.
I. BACKGROUND
This case arises out of an injury that Plaintiff Thomas Bittel experienced while he was
employed by Dynamic Industries (“Dynamic”) to perform offshore construction duties aboard a
fixed platform in the Gulf of Mexico. The platform is owned by Defendant Chevron U.S.A. Inc
(“Chevron”). According to his complaint, filed on January 25, 2013, Bittel participated in
moving a section of pipe on the platform on January 27, 2012. The project involved running a
cable from the tugger on the production deck to a clamp on a beam and down to a section of the
pipe below the production deck. Bittel alleges that he was located under the production deck as a
rigger when the clamp failed and the pipe fell and struck Bittel, causing serious injuries. Bittel
claims that he fell through the grating floor. He experienced a fractured skull as well as other
fractures and had to be hospitalized. Bittel claims that he has sustained permanent disfigurement
from the accident.

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At the time of the accident, Bittel was located inside a set of barricades that was arranged
around the cellar deck opening and beneath the suspended flow-line. Bittel claims that
Defendant Danny Gauthreaux, an employee of Defendant Audubon Field Solutions
(“Audubon”), directed him to enter the barricaded area. (Rec. Doc. 55-2 at 112). According to
Bittel, Gauthreaux realized that the pipe had a flange on the back that might get caught on the
grating as it was being drawn up. Bittel claims that Gauthreaux directed him to enter the
barricaded area to guide the pipe. Bittel further claims that Gauthreaux had been assigned to be
Chevron’s “representative” or “company man” on the platform. (Rec. Doc. 55-1 at 2).
Gauthreaux denies having told Bittel to enter the barricaded area. (Rec. Doc. 55-3 at 69).
According to Gauthreaux, he saw Bittel enter the barricade earlier and told him that he needed to
get out of the hole and “tie off” before he crossed into the barricaded area. (Rec. Doc. 55-3 at
69).
Bittel filed the present lawsuit against Chevron, Danny Gauthreaux, and Audubon. Bittel
claims that Defendants were negligent because, among other things, they did not load test the
equipment, ensure that proper equipment was used, and perform a thorough Job Safety Analysis.
Bittel is asking to be compensated for his pain and suffering, medical expenses, diminished
earning capacity, permanent disfigurement, and future medical expenses.
Defendants each filed an answer in which they deny liability and asserted various
affirmative defenses. Defendants claim that the accident occurred because of the fault or
negligence of Bittel and other parties for whom Defendants do not think they are responsible.
On June 3, 2013, American Zurich Insurance Company filed a complaint in intervention.
(Rec. Doc. 12 at 1). American Zurich explains that it has paid, and is currently paying,

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indemnity and medical benefits to Bittel pursuant to the LHWCA. American Zurich claims that
it is entitled to preference and priority over Bittel for any judgment rendered in his favor.
II. PRESENT MOTION
A. Chevron’s Motion for Summary Judgment
On June 17, 2014, Defendant Chevron filed a motion for summary judgment. First,
Chevron explains that the accident occurred on an installation on the Outer Continental Shelf,
therefore the Outer Continental Shelf Lands Act (OCSLA) applies. According to Chevron,
OCSLA adopts the law of the state adjacent to the installation as long as that law is not
inconsistent with other federal laws and regulations. Chevron claims that the Petronius platform,
where the accident took place, is adjacent to the state of Alabama. (Rec. Doc. 52-1 at 11).
Therefore, Chevron claims that Alabama law applies to this case.
Applying Alabama law, Chevron argues that it cannot be held liable for the Plaintiff’s
injuries because “a premises owner generally owes no duty of care to employees of an
independent contractor with respect to work performed under a contract.” (Rec. Doc. 52-1 at
12). Chevron claims that it signed a Master Contractor Services Contract with Dynamic,
whereby Dynamic would provide constructions and fabrication services to Chevron at various
offshore locations and would provide these services as an independent contractor. Chevron also
claims that it entered into a similar contract with Audubon, which stated that Audubon would
perform various offshore construction and maintenance services as an independent contractor.
(Rec. Doc. 52-1 at 3). According to Chevron, Dynamic dispatched Bittel to Chevron’s Petronius
platform to perform construction jobs, which included the removal of the A-3 flow line. (Rec.
Doc. 52-1 at 3). Chevron claims that Dynamic was in charge of determining the methods and
details of the work and supervising its employees. According to Chevron, its role was limited to

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identifying the maintenance and construction work needed to be performed. (Rec. Doc. 52-1 at
4).
According to Chevron, a premises owner may owe a duty of care to employees of an
independent contractor if the premises owner retains or reserves the right to control the
performance of the work or if the work is inherently or intrinsically dangerous. Chevron argues
that neither of these two exceptions applies in the present case. Chevron claims that if the proper
clamp had been selected (the 3-ton clamp rather than the 1-ton clamp) the accident would not
have occurred. Further, Chevron claims that no Chevron personnel were involved in any stage
of the flow-line removal project. Chevron also argues that it retained no control over Audubon’s
work relating to the flow-line lift and that it, therefore, cannot be held liable for any negligence
attributable to Audubon.
B. Plaintiff Bittel’s Opposition
In opposition, Bittel claims that Chevron’s motion should be denied because Chevron
directly participated in the operations through its “company man” and caused the incident in
question. (Rec. Doc. 55 at 1). Bittel claims that Danny Gauthreaux, an employee of Audubon,
was assigned to be Chevron’s representative on the platform and oversaw the pipe moving
operations. Bittel claims that Gauthreaux was acting as Chevron’s borrowed servant when he
instructed Bittel to enter a barricaded area and to guide the pipe while it was being lifted. Bittel
claims that this direct order resulted in him being placed in the “cone of danger.” Bittel claims
that recent discovery has revealed that Gauthreaux actually had an employment relationship with
Chevron. Bittel points out that Gauthreaux used a Chevron laptop and Chevron e-mail address to
relay progress reports and communications directly to Chevron. (Rec. Doc. 55 at 3). According
to Bittel, the substantive role and function of Gauthreaux was the same as that of a permanent

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Chevron employee. (Rec. Doc. 55 at 4). Bittel claims that Chevron is trying to shield itself from
liability by creating an “independent contractor” agreement with Audubon while still retaining
direct oversight and control over the operations on the platform through Gauthreaux. Bittel
urges this Court to look at the “‘reality of the worksite and the parties’ actions in carrying out the
contract” rather than at the express contract provision. (Rec. Doc. 55 at 11).
III. LAW & ANALYSIS
A. Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should
be granted if “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. Summary judgment is
proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with affidavits, if any, 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." Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (quoting Fed. R. Civ. P. 56(c)). When considering a motion for summary judgment,
the district court "will review the facts drawing all inferences most favorable to the party
opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.
1986). The court must find "[a] factual dispute [to be] 'genuine' if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party [and a] fact [to be] 'material' if it
might affect the outcome of the suit under the governing substantive law." Beck v. Somerset
Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).

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B. Independent Contractor and Borrowed Servant Doctrine
For the purposes of this motion, Bittel concedes that Alabama law applies. Bittel was an
employee of Dynamic. Bittel claims that Gauthreaux, an employee of Audubon, was responsible
for his injury and that at the time of the incident, Gauthreaux was a borrowed servant of
Chevron. The Court, therefore, must examine the relationships that existed between Chevron
and the two companies that were hired to perform work on the platform – Dynamic and
Audubon.
The distinction between an employee and an independent contractor is a very significant
one with important implications in tort law. This is because, “[o]rdinarily, a principal is not
liable for the incidental physical acts of negligence in the performance of duties committed by an
agent who is not an employee, but an employer is held liable to third parties for an employee’s
negligence under the doctrine of respondeat superior.” Langfitt v. Federal Marine Terminals,
Inc., 647 F.3d 1116, 1121 (11th Cir. 2011). Consistent with this idea, “[u]nder Alabama law, a
premises owner is not liable for the torts committed by an independent contractor.” See
Thompson v. City of Bayou La Batre, 399 So. 2d 292, 294 (Ala. 1981). However, when the
premises owner reserves the “right to control” the independent contractor, the relationship
changes from premises owner and independent contractor to that of master and servant, and the
premises owner can be held liable for the latter’s negligence acts. Ramirez v. Alabama Power
Co., 898 F. Supp. 1537, 1542 (M.D. Ala. 1995) (quoting Weeks v. Alabama Elec. Co-Op., Inc.,
419 So. 2d 1381 (Ala. 1982)). In order to determine if a premises owner has retained the right to
control the work performed by an independent contractor, Alabama courts examine two areas of
evidence: “the terms of the contract between the parties and the conduct of the premises owner.”

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Ramirez, 898 F.Supp. at 1542.
In the present case, the terms of the contract between Chevron and Audubon indicate that
Audubon was to provide services to Chevron as an independent contractor. On November 1,
2009, Chevron and Audubon entered into a Master Professional Services Contract. (Rec. Doc.
52-6 at 1). This contract provided that “[t]he Services are provided by Contractor as an
independent contractor, and Contractor and the members of Contractor Group are not employees,
agents or representatives of Company or Company Group.” (Rec. Doc. 52-6 at 27). The
contract further provided that “[a]s an independent contractor, Contractor has complete control,
supervision and direction over its equipment and personnel and over the manner and method of
the performance of the Services.” (Rec. Doc. 52-6 at 27). Interestingly, the contract between
Chevron and Dynamic contained an identical provision. (Rec. Doc. 52-5 at 40-41). Despite the
similarity between the two contracts, the record shows that the relationship between Chevron and
Audubon and Chevron and Dynamic was very different. Dynamic had been contracted by
Chevron to perform construction work on the platform. Dynamic provided a crew on the
platform to perform this work. This crew included a field superintendent who would supervise
the crew’s work. On the other hand, Chevron contracted with Audubon to fill a supervisory role
on the platform. The record indicates that the Audubon-supplied individual, Gauthreaux, would
act as a liaison between the Chevron engineers and the independent contractors who were hired
to do the work, like Dynamic. His role was to provide oversight of the construction and
maintenance activities that were occurring on the platform. See (Rec. Doc. 55-4 at 9).
The relationship between Chevron and Audubon raises questions regarding which entity
should be considered the actual employer of Gauthreaux. Bittel argues that Gauthreaux was a

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borrowed servant of Chevron at the time of the accident and, therefore, Chevron can be held
liable for his negligent conduct. The borrowed-servant doctrine was created because “Courts
recognized that ‘[i]t sometimes happens that one wishes a certain work to be done for his benefit,
and neither has persons in his employ who can do it nor is willing to take such persons into his
general services. He may . . . enter into an agreement with another [to] furnish [] him with men
to do the work.” Langfitt, 647 F.3d at 1122 (quoting Standard Oil Co. v. Anderson, 212 U.S.
215, 221 (1909)). In such a situation, the borrowed-servant doctrine is used to determine which
principal should be held vicariously liable for the worker’s negligent actions. Id. The Eleventh
Circuit has explained that “the same considerations relevant in determining whether a person was
an employee, as opposed to an independent contractor, guide the borrowed-servant inquiry.”
Langfitt, 647 F.3d at 1122. The analysis differs slightly in that the focus is on the relationship
between the two principals rather than between the principal and the agent. Id. The ultimate test
in determining whether an employee has become a loaned servant is “[w]hose work was the
employee doing and under whose control was he doing it.” Coleman v. Steel City Crane Rentals,
Inc., 475 So.2d 498, 500 (Ala. 1985).
The Alabama courts have emphasized that “[i]t is not the actual exercise of control which
is determinative but rather the reserved right to control the employee.” Id. “If reasonable
persons can reach different conclusions on the question of whether a servant of one employee
has temporarily become the servant of another, it is a question of fact for the jury.” Id. at 501
(citing United States Steel Corp. v. Mathews, 261 Ala. 120, 123 (Ala. 1954)); see also Ware v.
Timmons, 954 So.2d 545, 553 (Ala. 2006) (“Vicarious liability stemming from a master-servant
relationship—respondeat superior liability—is usually a question of fact for the jury”).

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In Coleman v. Steel City Crane Rentals, Inc., the Supreme Court of Alabama held that
there was sufficient evidence in the record to support the jury’s verdict that the borrowed-servant
doctrine applied and that the Illinois Central Gulf Railroad Company (ICG) became the
borrowing employer of the Steel City crane crew. The court recounted the evidence that was in
the record. The court explained:
The crane crew was employed and paid by Steel City,
which in turn billed ICG for the services. Steel City decided which
of its employees to send to any particular assignment. If ICG was
dissatisfied in the work, it could dismiss the entire crew, but only
Steel City could fire one of its employees. The employees testified
that they were working for Steel City and assisting the railroad in
clearing the tracks. There was evidence that positioning of the
crane and the movement of the boom were decisions left entirely to
the crane crew without direction from the railroad supervisors.
However, there was also evidence that the ICG employees
specified the way in which the line was to be clear, the location
where the crane crew should begin working, the order of the cars
to be put back on the tracks, and the time when the crane crew
could leave the site. Railroad employees hooked the crane and the
cars and signaled when the crane should lift the car.
475 So.2d at 500. The court also emphasized that one of Steel City’s crew members testified
that the ICG officials would tell them what to do. Id. at 501. The court stated that “[a]lthough
the question is a close one, there is sufficient evidence from which the jury could have concluded
that ICG employees went beyond suggestions for a cooperative effort and exercised supervisory
control over the actions of the Steel City crane crew.” Id.
In Theriot v. Dawson Production Services, Inc., this Court dealt with a similar arrangement
as the one involved in the present case. No. CIV. A. 97-1900; 1998 WL 637384 (E.D. La. Sept.
16, 1998). In that case, Defendant Parker & Parsley, Inc. (“Parker”) contracted with Britt, Pharr
& Associates, Inc. (“Britt, Pharr”) to provide an individual to monitor the work performed at a

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well site. Id. at *2. This individual, Sonny Leger, essentially worked as a “company man” for
Parker. The contract between Parker and Britt, Pharr referred to Britt, Pharr as an “independent
contractor.” Id. at *4. The Court, however, looked beyond the contract in order to understand
the “reality at the worksite,” for the purposes of performing the borrowed-servant analysis. The
Court emphasized that Leger reported to a Parker manager, did 90% of his work for Parker, and
could be fired by Parker. Id. at *4. The Court concluded that he “was clearly taking instruction
from and acting on behalf of Parker in performing his duties, and the agreement between the
parties does not trump the overwhelming evidence that Leger was, for all practical purposes, an
employee of Parker.” Id. at *4.
In the present case there are facts in dispute that preclude Chevron’s summary judgment
motion at this time. At the time of the accident, Gauthreaux was serving as a facility
representative on the platform. Gauthreaux testified that he considered himself a “[f]acilities
representative, company man.” (Rec. Doc. 55-3 at 26). Chevron’s corporate representative
testified that his job was “to provide broader oversight of construction and maintenance activities
that were occurring at that time on the platform. . . . [H]is job is insuring overall performance
schedule, cost management, logistics arrangement . . .” (Rec. Doc. 55-4 at 9). Gauthreaux
testified that his position required him to talk directly to Chevron engineers and acts as a
“liaison” between Chevron and the third-party contractor. (Rec. Doc. 55-3 at 30). Gauthreaux
testified that he ultimately reported to the Chevron engineers. (Rec. Doc. 55-3 at 29). He would
receive a “punch list” from the Chevron engineers that listed the tasks that needed to be
completed. Chevron’s corporate representative testified that Gauthreaux had very similar duties
and responsibilities as he would have had if he had been employed by Chevron to do that same

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job. (Rec. Doc. 55-4 at 22). Gauthreaux had a Chevron supplied laptop and Chevron e-mail
address. Gauthreaux used the laptop to run reports regarding time, material and costs involved in
a job. (Rec. Doc. 55-3 at 23). Gauthreaux also played a role in safety meetings. (Rec. Doc. 552 at 83-84). Chevron’s primary reason for going through Audubon instead of hiring its own
employee to do this job was that terminating the relationship was much easier when the worker
was supplied by a company like Audubon. (Rec. Doc. 55-4 at 19) (“That’s a primary reason.
We can just—we can just separate, and typically we say, sir, thank you. Services are no longer
required.”).
Chevron’s corporate representative testified that the relationship with Audubon required
Audubon to supply facility representatives to Chevron. Audubon would offer someone for the
position, but Chevron would have the ability to approve or reject the offered individual. (Rec.
Doc. 55-4 at 18). If, for instance, Chevron did not know the person or had not worked with the
person before, Chevron could reject Audubon’s selection. (Rec. Doc. 55-4 at 18). Chevron’s
corporate representative further testified that facility engineers would form relationships with
certain individuals and would try to select those individuals because those individuals know
“how Chevron likes work conducted on our behalf.” (Rec. Doc. 55-4 at 18). Gauthreaux had
been doing work for Chevron for many years before the accident.
While Chevron did not directly compensate Gauthreaux for his work, Audubon would
bill Chevron a specific rate for Gauthreaux’s work. This rate would depend on the experience of
the individual, including how much time that individual had spent with Chevron. (Rec. Doc. 554 at 28). Gauthreaux would receive a portion of that billed rate. (Rec. Doc. 55-4 at 28, 30).
The evidence indicates that Chevron did not have the ability to fire Gauthreaux.

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However, Chevron could dismiss him from the particular job. In fact, after the accident
involving Bittel, Chevron put Gauthreaux on leave. (Rec. Doc. 55-6 at 1) (“Management wants
us to put Danny on an extended leave from Chevron. Please start coordinating with the new
Rep.”). It is also worth noting that at the time of the accident, Chevron was reviewing
Gauthreaux for a permanent position with Chevron and had recently decided to hire him
although Chevron ultimately changed its mind and did not offer him the position. (Rec. Doc. 554 at 58, 60).
The facts in this case are similar to the facts in Coleman and Theriot. Accordingly, the
Court finds that there are material facts in dispute regarding whether Chevron retained the right
to exercise control over Gauthreaux’s work. Furthermore, if Gauthreaux was a borrowed servant
of Chevron, there remain facts in dispute regarding whether he was acting within the scope of his
employment if/when he directed Bittel to get inside the barricade. Therefore, summary judgment
is inappropriate on the issue of respondeat superior.
II. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Chevron’s Motion for Summary Judgment (Rec. Doc. 52) is
hereby DENIED.
New Orleans, Louisiana, this 12th day of August, 2014.

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UNITED STATES DISTRICT JUDGE

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