Tajonera et al v. Black Elk Energy Offshore Operations, L.L.C.
Filing
748
ORDER denying 270 Motion for Partial Summary Judgment; granting in part and denying in part 360 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown on 11/4/15. (Reference: as listed)(jrc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDNA TAJONERA, et al.
CIVIL ACTION
VERSUS
NO. 13-0366
c/w 13-0550, 13-5137, 13-2496,
13-5508, 13-6022, 13-6099,
13-6413, 14-374, and 14-1714
BLACK ELK ENERGY OFFSHORE OPERATIONS,
L.L.C., et al.
SECTION: “G”(5)
ORDER
Before the Court are Defendant Black Elk Energy Offshore Operations, LLC’s (“BEEOO”)
“Motion for Partial Summary Judgment”1 and “Motion for Summary Judgment.”2 Having considered
the motions, the memoranda in support and in opposition, the record, the representations made at
oral argument, and the applicable law, the Court will deny the motion for partial summary judgment,
and grant in part and deny in part the motion for summary judgment.
I. Background
A.
Factual Background
On November 16, 2012, an explosion and fire occurred on the Black Elk Energy West Delta
32 Block Platform, located in the Gulf of Mexico approximately 17 miles southeast of Grand Isle,
Louisiana.3 The explosion occurred while welding work was being conducted in connection with
a project to upgrade the Lease Automatic Custody Transfer system (“LACT”).4 The platform was
1
Rec. Doc. 270.
2
Rec. Doc. 360.
3
Rec. Doc. 82 at ¶ 28.
4
Rec. Doc. 590 at ¶ 33; Rec. Doc. 360-1 at p. 3.
1
owned by Black Elk Energy Offshore Operations, LLC (“BEEOO”).5 Wood Group USA, Inc.
(“Wood Group”), Compass Engineering & Consultants, LLC (“Compass”), Enviro Tech Systems,
LLC (“Enviro Tech”), Grand Isle Shipyard, Inc. (“GIS”), and Shamrock Management, LLC
(“Shamrock”) were contractors of Black Elk allegedly involved in work being done on the Platform
that day.6
B.
Procedural Background
This litigation involves nine consolidated cases all arising out of the November 16, 2012
explosion. In cases 13-366 and 13-550, surviving spouses of workers allegedly killed during the
explosion have brought negligence and wrongful death claims against BEEOO and its contractors.7
In 13-5137, 13-5508, 13-6022, 13-6099, 13-6413, and 14-374 workers allegedly injured during the
explosion have asserted negligence claims against BEEOO and its contractors.8 In 13-2496, GIS
filed suit against BEEOO, Enviro Tech, Wood Group, and Compass claiming, among other things,
that the defendants’ “combined negligence, fault, and/or strict liability,” was the cause of the
explosion.9
Throughout this litigation, the parties have referred to the plaintiffs in the various cases as
follows:
5
6
Id. at ¶ 8.
Id. at ¶¶ 22–27.
7
See Case No. 13-366, Rec. Doc. 1 (amended by Rec. Doc. 82); Case No. 13-550, Rec. Doc. 1 (amended
by Case No. 13-366, Rec. Doc. 83).
8
See Case No. 13-513, Rec. Doc. 1; Case No. 13-5508, Rec. Doc. 1; 13 Case No. 13-6022, Rec. Doc. 1
(transferred from the South District of Texas, Galveston Division by Case No. 13-6022, Rec. Doc. 40); Case No. 136413, Rec. Doc. 1; Case No. 14-374, Rec. Doc. 1 (transferred from the Southern District of Texas, Galveston
Divsion by Case No. 14-374, Rec. Doc. 37).
9
See Case. No. 13-2496, Rec. Doc. 1 at ¶ 11.
2
C
13-0366: Tajonera Plaintiffs
C
13-0550: Corporal Plaintiffs
C
13-5137: Canencia Plaintiffs
C
13-5508: Tamayo and Ilagan Plaintiffs
C
13-6022: Plaintiff Voclain
C
13-6413: Srubar and Gipson Plaintiffs
C
14-0374: Plaintiff Dominguez
Recognizing the number of individual plaintiffs spread out across each of these cases, the Court will
continue with the parties’ naming convention for simplicity.
On May 14, 2014, BEEOO filed a “Motion for Partial Summary Judgment,”10 wherein it
argues that, as a matter of law, it did not owe any duty to supervise or provide a safe work
environment under Louisiana Civil Code art. 2315 to its independent contractors, or their employees,
on the West Delta 32 platform at any time relevant to this case.11 Memoranda in opposition were
filed by the Gipson Plaintiffs,12 Plaintiff Voclain,13 the Canencia Plaintiffs,14 the Tamayo Plaintiffs,15
10
Rec. Doc. 270.
11
Id. at p. 1.
12
Rec. Doc. 409.
13
Rec. Doc. 413.
14
Rec. Doc. 414.
15
Rec. Doc. 419.
3
the Tajonera Plaintiffs,16 Wood Group,17 GIS,18 and the Dominguez Plaintiff.19 On September 16,
2014, BEEOO filed a reply in support of its motion for partial summary judgment.20
On July 22, 2014, BEEOO filed a “Motion for Summary Judgment,” wherein it argues that:
(1) the consolidated Plaintiffs and their respective employers were Black Elk’s independent
contractors; (2) Black Elk neither retained nor exercised operational control over Plaintiffs or their
work; and (3) there are no facts with which to impute Black Elk with independent negligence.21
Memoranda in opposition were filed by the Gipson Plaintiffs,22 the Canencia Plaintiffs,23 Plaintiff
Voclain,24 Wood Group,25 GIS,26 Plaintiff Dominguez,27 the Tamayo and Ilagan Plaintiffs,28and the
Tajonera and Corporal Plaintiffs.29 On September 16, 2014, BEEOO filed a reply brief in support
16
Rec. Doc. 420.
17
Rec. Doc. 421.
18
Rec. Doc. 424.
19
Rec. Doc. 438.
20
Rec. Doc. 458.
21
Rec. Doc. 360 at p. 1.
22
Rec. Doc. 410.
23
Rec. Doc. 415.
24
Rec. Doc. 416.
25
Rec. Doc. 423.
26
Rec. Doc. 424.
27
Rec. Doc. 428.
28
Rec. Doc. 431.
29
Rec. Doc. 435.
4
of its motion for summary judgment.30 The Court held oral argument on both motions on February
25, 2015.31
The Court notes, and the parties acknowledged at oral argument, that BEEOO’s motion for
summary judgment significantly overlaps with its motion for partial summary judgment. As such,
the Court will consider both sets of arguments together.
II. Parties’ Arguments
A.
BEEOO’s Arguments in Support of Summary Judgment
In its Motion for Summary Judgment, BEEOO argues that, pursuant to Master Service
Agreements (“MSAs”) entered into by the relevant parties, BEEOO is a principal, and GIS,
Shamrock and Wood Group are its independent contractors.32 According to BEEOO, under
Louisiana law, a principal cannot be held liable for the negligence of its independent contractors
unless (1) the suit arises out of the ultrahazardous activities of its independent contractors, and (2)
the principal retains operational control over the independent contractor’s acts or expressly or
impliedly authorizes those acts.33 BEEOO contends that Plaintiffs have not alleged that the work on
the WD-32 was ultrahazardous, and that it neither retained nor exercised operational control over
any of its independent contractors on WD-32 at the time of the explosion.34
Specifically, BEEOO contends that because it assigned responsibility to its independent
contractors for their own activities under the MSAs, it did not retain contractual or actual operational
30
Rec. Doc. 454.
31
Rec. Doc. 608.
32
Rec. Doc. 360-1 at p. 6.
33
Id. at p. 7.
34
Id.
5
control over GIS or its contractors.35 BEEOO argues that it had no employee on the platform at any
relevant time, and that it “had no involvement whatsoever in the step-by-step decisions and provided
no ‘how to’ instructions with respect to the work performed by the GIS’ employees on WD-32.”36
BEEOO contends that Curtis Dantin, the GIS Supervisor, testified that he did not receive step-bystep instructions from BEEOO,37 and that Don Moss (“Moss”) of Compass did not exercise any level
of operational control over GIS or its workers.38 According to BEEOO, Moss spoke to Dantin about
the “overall picture of what needed to be accomplished by GIS, but left it up to GIS and Mr. Dantin
to decide on how best to accomplish the work.”39 BEEOO contends that such limited interactions
do not rise to the level needed to exercise control, stating that a principal must have “expressly
ordered the independent contractor to engage in an unsafe work practice that eventually caused an
injury to the plaintiff.”40 Finally, BEEOO argues that Chris Srubar (“Srubar”), Wood Group Lead
Operator, testified that neither BEEOO nor Don Moss gave him instructions on how to do his job.41
Largely repeating arguments made in its motion for partial summary judgment,42 BEEOO
next contends that it is not independently negligent under Articles 2315 or 2316 because it had no
duty to provide its independent contractors with a safe place to work, as evidenced by the fact that
35
Id. at p. 8 (citing Klein v. Cisco Eagle, Inc., No 37-398 (La. App. 2 Cir. 2003); 855 So.2d 844, 850).
36
Id. at pp. 8–9.
37
Id. at p. 9.
38
Id. at p. 10 (citing Dantin Tr., Ex. C, at p. 138).
39
Id. at p. 11.
40
Id. at p. 10 (quoting Graham v. Amoco Oil Co., 21 F.3d 643, 646 (5th Cir. 1994)).
41
Id. at p. 12 (citing Srubar Tr., Ex. F, at p. 133).
42
See Rec. Doc. 270-1 at pp. 9–13.
6
each contractor provided its own supervisor on site.43 Rather, BEEOO argues, the duty to inspect
and ensure the safety of personnel on the platform was breached by the parties who voluntarily
assumed that duty: BEEOO’s independent contractors.44 BEEOO argues that it had no duty to
supervise, direct, instruct, or otherwise ensure that its contractors’ employees perform their work
safely because, under Louisiana law and Fifth Circuit precedent, it was entitled to rely on the
expertise of its independent contractors to perform its work in a safe manner.45 Next, BEEOO
contends that, as a principal and platform owner, it had no legal duty to correct or eliminate
hazards.46 BEEOO’s position is that it cannot be held independently negligent because it did not
exercise operational control over the LACT upgrade work, had no knowledge as to the exact details
of the work, and was not involved in directing the GIS workers.47 Specifically, BEEOO argues that
as a condition of entering into an MSA with BEEOO, each independent contractor agreed to retain
all responsibility regarding safety and to perform all services in accordance with all applicable safety
regulations, precautions, and procedures.48
Finally, BEEOO argues that it was not negligent under Article 2317.1 for alleged defects and
hazardous conditions on the platform.49 According to BEEOO, Article 2317.1, characterized by
43
Rec. Doc. 360-1 at p. 13.
44
Id. at p. 14.
45
Id. (citing Hawkins v. Evans Cooperage Co., 766 F.2d 904, 908 (5th Cir. 1985)).
46
Id. at pp. 16–17 (citing Dupre v. Chevron U.S.A., Inc., 33 F.3d 7 (5th Cir. 1994); Thomas v. Burlington
Resources Oil & Gas Co., 2000 WL 1528082 (E.D. La. 2000) (Barbier, J.); Iglesias v. Chevron U.S.A., Inc., 656 F.
Supp. 2d 598, 601 (E.D. La. 2009) (Zainey, J.)).
47
Id. at p. 13.
48
Id. at p. 18.
49
Id.
7
Plaintiffs as a strict liability law, imposes a negligence standard in cases involving defective things
based on a custodian’s knowledge or constructive knowledge of the defect.50 BEEOO admits that
it owns the WD-32 platform, but argues that the platform was not in BEEOO’s custody at the time
of the incident because BEEOO had no employees or personnel aboard.51 Additionally, BEEOO
argues that its platform, piping, and tanks were not defective under Article 2317.1.52 Specifically,
BEEOO contends that the purpose of tanks and piping on a production platform is to hold and move
hydrocarbons, and “[t]hus, the fact that there were allegedly hydrocarbons in piping or tank aboard
an oil and gas platform does not constitute a defect or unreasonably hazardous condition as
contemplated by Article 2317.1.”53 Even if the pipe was defective because it had not been purged,
according to BEEOO, it had no actual or constructive knowledge of the defect.54 Specifically,
BEEOO contends that the GIS workers performing hot work on the LACT piping that led to the
explosion presumably had no knowledge that the pipe or tank had not been purged; therefore,
BEEOO similarly would have had no knowledge of that condition either, particularly because it had
no employees on the platform.55
B.
Gipson Plaintiffs’ Arguments in Opposition
In opposition, Gipson Plaintiffs argue that BEEOO, through its construction superintendent,
50
Id. at p. 19 (citing Gros v. Warren Props. Inc., 12-2184, 2012 WL 5906724, at *10 (E.D. La. Nov. 26,
2012) (Barbier, J.)).
51
Id. at p. 20.
52
Id. at pp. 20–21 (citing Hammons v. Forest Oil Corp., 06-9173, 2008 WL 348765 (E.D. La Feb. 7, 2008)
(Africk, J.)).
53
54
55
Id. at pp. 21–22.
Id. at p. 22.
Id. at p. 23.
8
Monty Richard (“Richard”), specifically directed how the LACT upgrade was going to be performed
by providing step by step instructions for the LACT upgrade work.56 As evidence, Gipson Plaintiffs
cite an e-mail Richard sent to his BEEOO supervisor seven hours after the explosion, outlining his
specific instructions for the LACT work, as well as a deposition in which Plaintiffs claim that
Richards specifically stated that he was the one giving the step by step instructions on how LACT
work was to be performed.57 Moreover, Gipson Plaintiffs aver that Richard’s specific instructions
concerning the LACT work were in direct violation of BEEOO’s hot work safety policies, which
state that “offshore welding and burning shall be minimized by onshore fabrication when feasible.”58
Gipson Plaintiffs contend that Louisiana law imposes liability on a platform owner for the
negligent acts of an independent contractor when the platform owner retains at least some degree
of operational control over the manner in which the work is done.59 According to Gipson Plaintiffs,
“[n]ot only did Black Elk dictate the precise step by step procedure on how the LACT work was to
be performed, and therefore exercised operational control over the project, but their specific step by
step instructions were in violation of their own safety manual requiring the minimizing of field
welds in favor of pre-fabrication onshore.”60
C.
Canencia Plaintiffs’ Arguments in Opposition
Canencia Plaintiffs first incorporate the opposition initially filed against BEEOO’s motion
56
Rec. Doc. 410 at p. 2.
57
Id. (citing Richard E-mail, Ex. A; Richard Dep. at pp. 325–27, Ex. B).
58
Id. at p. 4.
59
Id. (citing Boutwell v. Chevron U.S.A., Inc., 864 F.2d 406 (5th Cir. 1989); Ainsworth v. Shell Offshore,
Inc., 829 F.2d 548 (5th Cir. 1987)).
60
Id. at p. 6.
9
for partial summary judgment,61 wherein they argue that the Code of Federal Regulations places
affirmative duties on BEEOO to provide workers with a safe place to work, and that BEEOO
assumed those duties when it formulated and implemented its Safety Manual.62 In the opposition to
the motion for partial summary judgment, Canencia Plaintiffs contend that, in formulating a “Safe
Work Manual” pursuant to the requirements of federal regulations and requiring its contractors to
follow that manual, BEEOO assumed the duty of providing for the safety of the independent
contractors on its platform.63 Canencia Plaintiffs extensively quote a report issued by the Bureau of
Safety and Environmental Enforcement (“BSEE”), in which it found it was probable that BEEOO
had violated federal regulations and its own safety manual and that such violations were possible
contributing causes of the platform explosion.64 Canencia Plaintiffs contend that BEEOO could not
contract away its safety responsibilities in light of the new federal regulations, passed in the shadow
of Deepwater Horizon incident, imposing the ultimate responsibility on BEEOO to ensure that safety
protocols were followed.65
In the alternative, Canencia Plaintiffs argue that a genuine issue of material fact exists as to
whether BEEOO retained operational control over its independent contractor’s acts, or expressly or
impliedly authorized those acts.66 Canencia Plaintiffs note that they were employed by D&R
Resources, LLC (“D&R”), with whom BEEOO did not contract, and therefore there is no contract
61
Rec. Doc. 415 at p. 3.
62
Rec. Doc. 414 at p. 5 (citing 30 C.F.R. § 250.1900 et seq.).
63
Id. at p. 6 (citing Dep. of Kenneth Anthony, a former BEEOO employee, Ex. 1 at p. 29).
64
Id. at p. 7.
65
Id. at p. 11.
66
Id. at p. 13.
10
delegating safety responsibilities to D&R.67 Similarly, Canencia Plaintiffs contend, BEEOO did not
have a valid contract with GIS designating GIS as an independent contractor, and thus the
independent contractor defense could not apply to their relationship, either.68
Next, Canencia Plaintiffs contend that former BEEOO Chief Well Operations Officer Carl
Hammond (“Hammond”) provided conclusive evidence that BEEOO retained and asserted
operational control over its independent contractors’ acts, or expressly or impliedly authorized those
acts.69 Canencia Plaintiffs cite statements by Hammond that allegedly prove that BEEOO exercises
control over the details of how contractors perform their work on the platform, that it was BEEOO’s
policy to have an engineer or superintendent on the platform to oversee work performed by third
party contractors, that BEEOO had a policy requiring every line and tank containing hydrocarbons
on its platforms to be purged and rendered inert before hot work could begin, and that, in sum,
BEEOO did not cede total control of its platforms to contractors.70 Canencia Plaintiffs also cite
statements by Kenneth Anthony (“Anthony”), who was BEEOO’s operation supervisor on
November 16, 2012, asserting that BEEOO was “always in charge of safety” for platform
operations, that Anthony or another employee on duty for BEEOO would provide direction to
contractors on BEEOO’s platform, and that Anthony was in control of the details of when hot work
permits could be issued by Wood Group.71
In opposition to BEEOO’s motion for summary judgment, Canencia Plaintiffs challenge
67
Id. at pp. 13–14.
68
Id. at p. 14.
69
Id. at p. 17.
70
Id. at pp. 17–19 (citing Unsworn Decl. Under Penalty of Perjury of Carl Hammond, Ex. 11).
71
Id. at p. 20 (citing Dep. of Kenneth Anthony, Ex. 1, at pp. 243, 264–65).
11
BEEOO’s assertion that it did not retain operational control over GIS, and argue that regardless, all
they are required to show is that BEEOO retained operational control over any contractor on the
platform, not all contractors.72 Canencia Plaintiffs argue that Chris Srubar, Wood Group Lead
Operator, testified that BEEOO foremen Anthony and Mark Martin (“Martin”) gave him instructions
to “delegate or start splitting up jobs,” which indicates that BEEOO retained operational control.73
They additionally contend that Richard gave Don Moss and George Wolfe of Compass detailed
instructions regarding the addition of the divert valve and piping to the LACT unit.74
Next, Canencia Plaintiffs argue that BEEOO is independently negligent under Louisiana
Civil Code article 2315 and/or 2316 because it breached “the duty to construct, maintain, monitor,
and operate the platform in a manner compatible with applicable industry codes, consensus
standards, and generally accepted practice as well as in compliance with all applicable governmental
regulations, as well as the duty to ensure that it manages safety hazards on the platform.”75 Canencia
Plaintiffs argue that Larry Combs, Vice President of Operations for BEEOO, testified that BEEOO
developed a plan for upgrading the LACT unit by November of 2011, and that Anthony testified that
the plan would require hot work and field welds.76 Next, they point to emails sent by Richard to
Compass employees stating that “we need to install while crew is on location.”77 Plaintiffs state that
72
Rec. Doc. 415 at p. 4.
73
Id. at p. 5 (citing Dep. of Chris Srubar, Ex. 3, at p. 550).
74
Id. at p. 6.
75
Id. at pp. 7–8.
76
Id. at p. 8 (citing Dep. of Larry Combs, Ex. 5, at p. 66; Dep. of Kenneth Anthony, Ex. 1, at p. 73).
77
Id. at p. 9 (citing E-mails dated Nov. 9, 2012, Ex. 14).
12
Moss sent daily construction reports to Richard and several other BEEOO employees.78 Canencia
Plaintiffs allege that BEEOO knew that field welds would take place on November 16, 2012 but
failed to notify Srubar, the Person-in-Charge of the platform “and the last line of defense against a
catastrophic explosion.”79 Canencia Plaintiffs allege that BEEOO ignored a known hazard of
performing field welds on piping containing hydrocarbons, elected to ignore BEEOO’s Welding,
Burning, and Hot Tapping Safe Practices and Procedures Plan, and did not wait for piping to be
fabricated that would have completely eliminated the need for field welds.”80
Finally, Canencia Plaintiffs argue that BEEOO is negligent pursuant to Louisiana Civil Code
article 2317.1.81 They cite Bethea v. Great Atlantic & Pacific Tea Co. for the argument that “custody
or garde will not be shared or transferred when there is a limited ability to inspect the premises,
limited access to enter the premises, and an inability to alter the premises.”82 Here, they argue,
BEEOO had unlimited access to enter the platform, and at least once daily, Anthony would inspect
the platform personally or contact a platform operator “and communicate as to what was going on.”83
D.
Voclain’s Arguments in Opposition
Voclain adopts by reference his opposition and related pleadings and exhibits submitted in
opposition to BEEOO’s motion for partial summary judgment,84 wherein he argues that there was
78
Id. at p. 10 (citing Dep. of Don Moss, Ex. 2, at p. 26).
79
Id. at p. 11.
80
Id. at p. 15.
81
Id. at p. 17.
82
Id. (citing Bethea v. Great Atlantic & Pacific Tea Co., 2007-1385 (La. App. 4 Cir. 9/30/99); 22 So.3d
1114, 1115).
83
Id.
84
Rec. Doc. 416 at p. 1.
13
no MSA between BEEOO and Enviro-Tech, Voclain’s employer, and that without a contract shifting
responsibilities to Enviro-Tech, BEEOO owes a duty of reasonable care to provide Vocalin with a
safe place to work.85 Voclain argues that the contractual relationship and corresponding delineation
of duties appears determinative in all the cases sited by BEEOO, and that therefore Louisiana
negligence law, federal safety regulations, and BEEOO’s own assumption of duties, which all place
a duty on BEEOO, are unaltered by any contractual shifting of duties.86 Voclain also claims that
federal regulations place an affirmative duty on BEEOO, relying on arguments similar to those
alleged by Canencia Plaintiffs, supra.87
E.
Wood Group’s Arguments in Opposition
Wood Group argues that BEEOO failed to comply with important provisions of its “Welding,
Burning and Hot-Tapping - Safe Practices and Procedures Plan,” which Wood Group characterizes
as “a document it was required to provide to the federal government before beginning operations.”88
According to Wood Group, BEEOO initiated work on the LACT unit in February 2012.89 At that
time, Wood Group staes, BEEOO’s Operations Supervisor, Troy Durkes (“Durkes”), was present
on the Platform to oversee the project.90 The original design, according to Wood Group, called for
new piping to be installed using hot work techniques, and Durkes “made the decision to shut down
the job due to lack of authorization and to allow for the re-design of the project to eliminate filed
85
Rec. Doc. 413 at p. 2.
86
Id. at p. 3.
87
Id. at pp. 5–9.
88
Rec. Doc. 423 at pp. 1–2.
89
Id. at p. 2.
90
Id.
14
[sic] welds (hot work).”91 In November 2012, Wood Group argues, Monte Richard of BEEOO
instructed Don Moss of Compass that the LACT unit piping was to be installed.92 According to
Wood Group, after the pre-fabricated section of pipe that was integral to the LACT construction
could not be located aboard the platform, Richard “made the decision that, instead of having the
missing pipe re-fabricated, the construction crew would revert to original design which required
welding to perform hot work.”93
According to Wood Group, BEEOO was in control of its subcontractors with respect to the
LACT unit project, but failed to submit a welding plan or send a welding supervisor familiar with
the plan to inspect the worksite and advise, in writing, that the area was safe to weld.94
F.
GIS’s Arguments in Opposition
First, GIS contends that, following revisions to the Code of Federal Regulations in the wake
of the Deepwater Horizon incident, there is a serious question as to whether the independent
contractor defense remains viable.95 GIS argues that 30 C.F.R. § 250.1900 has effectively
legislatively overruled any prior case law that permitted a platform owner or operator to defer to a
contractor.96 Therefore, according to GIS, the primary obligation for safety on an offshore platform
belongs to the owner and operator, regardless of any contractual arrangements it entered into prior
91
Id. (citing Feb. 20, 2012 E-mail of Troy Durkes, Ex. B).
92
Id. (citing Nov. 2, 2012 E-mail of Monte Richard, Ex. C).
93
Id. at p. 3 (citing Nov. 12, 2012 E-Mail from Monte Richard, Ex. E).
94
Id. at p. 4 (citing 30 C.F.R. § 250.109, 110, 113).
95
Rec. Doc. 424 at p. 6.
96
Id. at p. 7
15
to November 2011.97
Next, GIS contends that it was not an independent contractor of BEEOO, so if GIS is found
liable in this matter, BEEOO cannot insulate itself from vicarious liability by virtue of the
independent contractor defense.98 GIS claims that it was working on the platform pursuant to the
Black Elk - GIS Business Alliance Agreement (“Alliance Agreement”), signed by the parties and
made effective May 5, 2010, not pursuant to an MSA.99 GIS states that it entered into an MSA with
“Black Elk Energy, LLC” (“BEE”) which is distinct from BEEOO.100 According the GIS, the
Alliance Agreement did not state that GIS was BEEOO’s independent contractor or that BEEOO
ceded control over work to GIS.101
GIS additionally argues that BEEOO fails to provide undisputed material facts supporting
its contention that it was in a principal/independent contractor relationship with all of the contractors
on the platform at the time of the incident.102 Specifically, GIS contends that BEEOO has not alleged
a contractual relationship with Compass or Enviro-Tech.103 Moreover, according to GIS, the MSAs
between BEEOO and GIS, Wood Group, and Shamrock were entered into on behalf of BEE, not on
behalf of BEEOO.104 According to GIS, there are multiple questions of fact with respect to which
97
Id.
98
Id.
99
Id. (citing Alliance Agreement, Ex. A).
100
Id. at p. 10.
101
Id. at p. 8.
102
Id. at p. 9.
103
Id. at p. 10.
104
Id. (citing Ex. B to Rec. Doc. 270-3, at p. 1.; Ex. B to Rec. Doc. No. 360-4, at p. 1).
16
parties entered into the alleged contracts, and whether the contracts establish independent
contractor/principal relationships.105
Moreover, GIS alleges that BEEOO “absolutely directed how each contractor was to perform
its job, and, in fact, as [regarding] the specific work being performed at the time of the incident,
changed the scope of work to suit its own needs.”106 GIS contends that, although BEEOO tried to
“contractually set up a situation where it could claim to be a ‘hands-off’ operator,” in reality,
BEEOO retained operational control over the work performed on the West Delta 32 platform.107 GIS
avers even without direct employees present on the platform, BEEOO nevertheless maintained
extensive control.108 In support of its argument, GIS contends that Kenneth Anthony, the BEEOO
supervisor on the platform, testified that he monitored work on the platform on a daily basis and
instructed the PIC, Wood Group employee Chris Srubar, what to do.109 GIS alleges that Srubar
testified that BEEOO was “calling the shots.110 GIS further points to the testimony of BEEOO’s
construction supervisor, Monte Richard, wherein he allegedly stated that he provided Compass’s
construction supervisor, Don Moss, with step-by-step instructions for performing the work at
issue.111 GIS points to emails sent by Richard to Doug Fehr, BEEOO’s Chief Operating Officer,
approximately eight hours after the incident, as well as Richard’s deposition testimony, for the
105
Id. at p. 11.
106
Id.
107
Id. at p. 12.
108
Id.
109
Id. at p. 14 (citing Ex. C at pp. 50–52).
110
Id. (citing Dep. Tr. of Chris Srubar, Ex. D, at p. 433).
111
Id. at pp. 14–15.
17
argument that BEEOO “spelled out the precise manner in which the work should proceed.”112 GIS
argues that BEEOO expressly retained the right to oversee the work performed by Wood Group and
Shamrock, and that the contractors were obligated to follow BEEOO’s safety regulations.113
Additionally, GIS avers that BEEOO cannot avail itself of the independent contractor
defense because it gave express or implied authorization to an unsafe practice.114 GIS asserts that
BEEOO impliedly authorized the work because it had a specific procedure for issuing hot work
permits, but did not require this procedure to be followed.115 GIS points to the testimony of Srubar,
who apparently did not believe he was obligated to comply with BEEOO’s policies and believed he
had authority from BEEOO to allow Philip Broussard to issue a hot work permit on the date of the
incident.116 GIS contends that BEEOO expressly authorized the work because BEEOO approved the
welding on the LACT unit.117 GIS’ position is that the conditions on the platform were created by
BEEOO, not by any contractors.118 Specifically, GIS contends that it was BEEOO’s decision to
change the manner and method of work from prefabbed construction that required no hot work to
requiring field welds, which is enough to make BEEOO independently liable under Article
2317.1.119
112
Id. at p. 16 (citing E-mail from Monte Richard to Doug Fehr, dated Nov. 16, 2012, at 4:21 p.m., Ex. F;
Ex. D at pp. 325–27).
113
Id. at p. 17.
114
Id. at p. 19 (citing Sandbom v. BASF Wyandotte Corp., 647 So.2d 349 (La. App. 1 Cir. 1996)).
115
Id. at p. 20.
116
Id. at p. 21 (citing Ex. D at p. 470).
117
Id. at p. 22.
118
Id. at p. 25.
119
Id.
18
G.
Plaintiff Dominguez’s Arguments in Opposition
First, Dominguez incorporates his arguments in opposition to BEEOO’s motion for partial
summary judgment,120 wherein he argues that BEEOO did not have contracts containing independent
contractor clauses with several of the key companies performing work on its platform.121
Specifically, Dominguez alleges that no such contracts existed with his employer, D&R, or with
Compass, Wood Group, or GIS.122 Dominguez contends that BEE, not BEEOO, had a contract with
Wood Group, and that even if BEEOO could benefit from BEE’s contract, Wood Group and BEE
later entered into a separate agreement in October 2011 that required Wood Group to follow detailed
instructions from BEE (“Bridging Agreement”).123 The Bridging Agreement, according to
Dominguez, provided Wood Group with specific instructions for performing hot work, and that such
instructions are inconsistent with an independent contractor relationship.124
Next, Dominguez contends that BEEOO is vicariously liable for any negligent acts
committed by Don Moss of Compass because Moss was a “borrowed employee.”125 According to
Dominguez, Moss was BEEOO’s “representative” on the platform, serving as its “eyes and ears”
and ensuring that GIS and D&R workers were doing what they were required to do.126 Moreover,
Dominguez contends, even if the work in question was performed by independent contractors,
120
Rec. Doc. 428 at p. 4.
121
Rec. Doc. 438 at p. 5.
122
Id.
123
Id. at p. 7.
124
Id. at pp. 7–8.
125
Id. at p. 8 (citing Morgan v. ABC Mfr., 710 So. 2d 1077, 1082 (La. 1998)).
126
Id. at p. 9 (citing Don Moss. Dep., Ex. K, at pp. 119, 141, 441–42, 469).
19
BEEOO exercised operational control over the work in question, citing much of the same evidence
presented by other memoranda in opposition.127
In opposition to BEEOO’s motion for summary judgment,128 Dominguez argues that BEEOO
is independently negligent for changing the scope of work to require offshore hot work, even though
it previously recognized the safety risks posed by that plan.129 Specifically, according to Dominguez,
the original plan for the LACT unit job required offshore welding “in the field,” but, in accordance
with its own safety policy, BEEOO changed this plan to eliminate the unnecessary hazards
associated with hot work on the facility.130 Under the new plan, Dominguez contends, no hot work
would be performed on the platform.131 Dominguez alleges that Monte Richard subsequently decided
to revert back to the original plan, and thereby order hot work on the pipe.132 Therefore, according
to Dominquez, BEEOO expressly ordered the job to be done in a manner that it previously
determined was unsafe, and consequently BEEOO committed independent acts of negligence.133
Dominguez next argues that BEEOO violated BSEE safety regulations, which require work
to be performed “in a safe and workmanlike manner” and hot work to be performed only pursuant
to an approved Welding Plan.134 Dominguez points to the deposition of Larry Combs, BEEOO
127
Id. at pp. 9–18.
128
Rec. Doc. 360.
129
Rec. Doc. 428 at p. 4.
130
Id. at p. 5.
131
Id.
132
Id. at pp. 5–6 (citing Anthony Dep., Ex. F at pp. 174–75; 177, 179–81).
133
Id. at p. 6.
134
Id. at p. 7 (citing 30 C.F.R. § 250.109–11; 30 C.F.R. §282.27(a)).
20
corporate representative, where he testifies that he is unaware whether BEEOO gave a Welding
Plan to Curtis Dantin, GIS, Don Moss, Chris Srubar, Compass, or Wood Group.135 Dominguez
contends that BEEOO’s failure to follow these safety regulations constitutes negligence per se.136
H.
Tamayo Plaintiffs’ Arguments in Opposition
Tamayo Plaintiffs adopt all responses and oppositions to BEEOO’s motion for summary
judgment.137 In opposition to BEEOO’s motion for partial summary judgment, Tamayo Plaintiffs
repeat many of the arguments made by other parties, specifically that federal regulations required
BEEOO to retain operational control,138 and that BEEOO in fact retained operational control.139
I.
Tajonera and Corporal Plaintiffs’ Arguments in Opposition
First, Tajonera and Corporal Plaintiffs argue that there are triable issues of fact as to whether
BEEOO retained operational control because:
Faced with a self-imposed deadline, to avoid production losses, [BEEOO] changed its
original modification plans and thereby unilaterally changed the manner by which the
construction crew was to complete the project. With these changes, [BEEOO] made the
ultimate decision on how the work on the LACT unit would be accomplished, and
substituted its method for those of the contractors aboard the platform.140
Like the other Plaintiffs in this matter, Tajonera and Corporal Plaintiffs argue that the November 16,
2012 email from Monte Richard to Doug Fehr, BEEOO’s Facilities Department Manager/Vice
President of Facilities, indicates that BEEOO laid out the step-by-step process by which the
135
Id. at p. 8 (citing Dep. of Black Elk Corporate Representative Larry Combs, Ex. G, at pp. 410, 414–15).
136
Id. at p. 9.
137
Rec. Doc. 431.
138
Rec. Doc. 419 at pp. 2–4.
139
Id. at pp. 4–5.
140
Rec. Doc. 435 at p. 10.
21
contractors were to prepare for the LACT unit project, and how the work would be performed.141
Moreover, according to Plaintiffs, BEEOO unilaterally chose to change the method by which the
LACT upgrade would be accomplished.142
Next, Tajonera and Corporal Plaintiffs contend that there are triable disputes of fact as to
whether BEEOO was independently negligent.143 First, they argue that BEEOO owed a duty of care
pursuant to Louisiana Civil Code art. 2315 to the contractor employees on the platform.144 Plaintiffs
contend that BEEOO gave specific instructions to the contractors aboard the platform, which
BEEOO owned, and expressly ordered the work to be done on the LACT unit on November 16,
2012.145 According to Plaintiffs, BEEOO created a hazardous environment, and therefore had a duty
to make that environment safe.146 Moreover, Plaintiffs argue that Richard voluntarily undertook the
task of directing the contractors how to perform the LACT unit project, and that voluntarily
assuming a task imposes a duty to perform those tasks in a reasonable and prudent manner.147
Plaintiffs argue that BEEOO breached its duty of care by failing to comply with the relevant
federal regulations or its own Safe Work Manual.148 According to Tajonera and Corporal Plaintiffs,
BSEE investigated the cause of the explosion and found that BEEOO failed to properly involve all
141
Id.
142
Id. at pp. 13–14.
143
Id. at p. 14.
144
Id.
145
Id. at p. 16.
146
Id.
147
Id. (citing Crane v. Exxon Corp., USA, 613 So.2d 214, 221 (La. Ct. App. 1992)).
148
Id. at p. 17.
22
personnel in the planning and execution of the hot work, failed to manage its contractors, failed to
perform the necessary actions to ensure the plan was followed, failed to demand accountability,
failed to include a mechanism for the establishment and implementation of safe work practices,
failed to include a mechanism to ensure that the contractors followed safe work practices and
procedures, failed to make certain that the contractors were conducting activities in accordance with
the requirements set out in the SEMS, and failed to inform the contractors of any known hazards,
including hazardous or flammable chemicals.149 Tajonera and Corporal Plaintiffs additionally argue
that BEEOO is liable under Louisiana Civil Code art. 2317.1 because BEEOO had custody of the
platform by virtue of its ownership and control over the platform, created an unnecessary hazard on
the platform, knew of the unreasonable risk of harm to workers, and did not take reasonable care in
preventing that harm.150
J.
BEEOO’s Reply in Further Support of its Motion for Summary Judgment
In reply, BEEOO argues that Plaintiffs downplay GIS’ negligent acts that caused the
explosion because they fear GIS could invoke borrowed employer immunity and thereby avoid any
judgment against it in tort.151 BEEOO argues that Plaintiffs take contradicting views on BEEOO’s
activities, simultaneously blaming it for not taking a more active role and adequately supervising
the work, and alleging that BEEOO had “direct supervision” over the work to such a degree that it
unequivocally exercised operational control over all work.152
149
150
Id. at p. 17–18.
Id. at pp. 20–22.
151
Rec. Doc. 454 at p. 1.
152
Id.
23
First, BEEOO adopts the arguments made in its reply in support of its motion for partial
summary judgment.153 In that reply, BEEOO argues that it did not retain operational control, but
merely provided safety guidelines to its contractors, without telling them how to do their work.154
BEEOO argues that it did not have any employees on the platform at any time relevant to Plaintiffs’
allegations, and therefore it was impossible for it to control any aspect of the work being performed
by the contractors.155 BEEOO challenges Plaintiffs’ reliance on the depositions of Kenneth Anthony,
who it claims was on vacation on November 16, 2012, and Larry Combs and Monte Richard, who
BEEOO contends were not on the West Delta 32 in November 2012.156 Instead, BEEOO argues,
none of the workers aboard the platform suggested that BEEOO exercised operational control over
them, citing the depositions of Srubar, Moss and Dantin.157
Next, BEEOO argues that Richard’s November 16, 2012 e-mail, relied on by many of the
plaintiffs, does not evidence operational control.158 BEEOO contends that the e-mail is evidence that
Richard simply had a discussion with Moss and Wolfe, and that Richard’s only communication
concerning the LACT unit was with Moss, not anyone with GIS, D&R, or Wood Group.159
Moreover, BEEOO contends, even if Richard’s e-mail provided GIS with step-by-step instructions
sufficient to find operational control, GIS failed to follow those instructions; had they done so, the
153
Id. at p. 2 (citing Rec. Doc. 458).
154
Rec. Doc. 458 at p. 2.
155
Id.
156
Id.
157
Id. at pp. 2–3.
158
Id. at p. 4.
159
Id.
24
explosion would not have happened.160
Next, BEEOO contends that the declaration of Carl Hammond, former Chief Well
Operations officer at BEEOO, relied upon by Plaintiffs, was “undoubtedly drafted by counsel to
serve their purposes” and is therefore “utterly unreliable and irrelevant.”161 BEEOO avers that
Hammond is “clearly a disgruntled ex-employee” of BEEOO who was terminated in September
2012 and his allegations concerning what happened on West Delta 32 in November 2012 are “pure
speculation.”162
BEEOO avers that the 2011 BSEE regulations (referred to by BEEOO as the “Workplace
Safety Rule”), cited by many plaintiffs as evidence that BEEOO had a legal duty to provide safe
working conditions, do not create any independent cause of action or impose legal duties upon a
platform owner to be enforced by this Court.163 BEEOO admits that there are no recent cases
analyzing the new regulations, but asserts that the Fifth Circuit has addressed former, comparable
regulations , and notes that no opposing parties have offered the Court any legal basis to find that
the new federal regulations overturned all prior case law on point.164 BEEOO alleges that the
Workplace Safety Rule merely subjects violators to civil or criminal penalties imposed by the
government, but does not create private civil liability.165 BEEOO maintains that while its safety
plans outlined how it hoped to select contractors and maintain a safe culture offshore, the plans “did
160
Id. at p. 5.
161
Id.
162
Id. at p. 6.
163
Id. at pp. 6–7.
164
Id. at p. 7.
165
Id. at p. 8.
25
not and could not impose any legal duty upon [BEEOO] beyond those already imposed by law.”166
In its reply in further support of its motion for summary judgment, BEEOO contends that
Plaintiffs have ignored facts supporting BEEOO’s argument that it was not independently negligent,
namely: (1) BEEOO had no employees on the platform; (2) the only contact BEEOO had with
platform personnel was a daily phone call and a few occasional e-mails; (3) the West Delta 32 could
only be brought back online when Energy XXI’s 30E platform came back online, which would not
happen for at least several weeks; (4) despite Richard’s e-mail documenting a conversation
concerning the performance of LACT work, GIS was not aware of the conversation and did not
follow the steps discussed; (5) BSEE approved the Management of Change order to allow field
welds on the LACT unit; (6) GIS brought three welders and welding equipment to the West Delta
432 to perform welding work on the platform; and (7) using the prefabricated piping as originally
intended still required two welds.167 BEEOO contends that the decision to field weld the LACT
piping was not negligent, noting that Plaintiffs have incorrectly assumed that a “flange-to-flange”
pre-fabricated design “would have eliminated the need for field welds,” and arguing that the
installation of flanges on the existing LACT pipe would still have required welding.168
According to BEEOO, it reverted back to its original, BSEE-approved plan allowing GIS
to rebuild the piping on the platform because original “flange-to-flange” piping that had been sent
to West Delta 32 “turned up missing” for unknown reasons.169 BEEOO argues that although its
166
Id. at p. 9.
167
Rec. Doc. 454 at pp. 3–4.
168
Id. at p. 4.
169
Id. at p. 5.
26
internal welding procedures seek to minimize hot work on platforms when feasible, welding is a
common event in offshore construction and often necessary.170 According to BEEOO, two field
welds would have been required under either plan, and the new plan added only two additional field
welds.171
Moreover, BEEOO avers, it did not rush the LACT unit work, citing testimony by Moss and
Richard stating that they knew as of November 14, 2012 that West Delta 32 could not come back
online until Energy XXI’s West Delta 30E platform returned online, and that BEEOO would be done
with its repairs before that time.172 According to BEEOO, Moss was retained to coordinate the
construction, and it was his job to inform Wood Group of where and when hot work was to be
performed.173 Therefore, BEEOO contends, it cannot be held liable for Moss’s alleged negligence
because he was not BEEOO’s employee, and BEEOO merely provided Moss with the scope of work
and communicated with him by phone daily to check on the progress of the work.174
Next, BEEOO contends that it was not negligent for failure to ensure its contractors were
following its policies.175 According to BEEOO, it signed Bridging Agreements with its contractors,
including GIS and Wood Group, requiring them sign off that they had reviewed BEEOO’s policies
and procedures and would adhere to them, and BEEOO was justified in relying upon those
170
Id.
171
Id. at p. 6.
172
Id. (citing Dep. of Don Moss, Rec. Doc. 415-2, at pp. 86–88, 217–18; Dep. of Monte Richard, Rec. Doc.
415-4, at p. 137).
173
Id. at p. 7.
174
Id.
175
Id.
27
agreements.176 BEEOO further contends that the BSEE report cited by Plaintiffs is hearsay and
therefore improper summary judgment evidence, and, moreover, BSEE “notoriously paints with a
broad brush in its reports and always looks to the platform owners as the party having to answer for
the transgressions of its contractors.”177 Finally, BEEOO avers that it was not negligent under Article
2317.1, arguing that Plaintiffs have provided no evidence of any alleged defect on the platform.178
III. Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show
that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”179 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.”180 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.”181 If the record,
as a whole, could not lead a rational trier of fact to find for the non-moving party, then no genuine
issue of fact exists and the moving party is entitled to judgment as a matter of law.”182 The
176
Id. at p. 8.
177
Id.
178
Id. at p. 9.
179
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
180
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
181
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
182
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
28
nonmoving party may not rest upon the pleadings, but must identify specific facts in the record and
articulate the precise manner in which that evidence establishes a genuine issue for trial.183
The party seeking summary judgment bears the initial responsibility of informing the Court
of the basis for its motion and identifying those portions of the record that it believes demonstrate
the absence of a genuine issue of material fact.184 To withstand a motion for summary judgment, a
non-moving party must show that there is a genuine issue for trial by presenting evidence of specific
facts.185 The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied
merely by creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,”
by “unsubstantiated assertions,” or “by only a scintilla of evidence.”186 Rather, a factual dispute
precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable trier
of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that cannot be
presented in a form that would be admissible in evidence at trial do not qualify as competent
opposing evidence.187
IV. Analysis
BEEOO states that it is entitled to summary judgment because: (1) the consolidated Plaintiffs
and their respective employers were BEEOO’s independent contractors; (2) BEEOO neither
retained nor exercised operational control over Plaintiffs or their work; and (3) there are no facts
183
See, e.g., Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
184
Celotex, 477 U.S. at 323.
185
Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012), citing Anderson, 477 U.S. 242 at 248-49.
186
Little, 37 F.3d at 1075.
187
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(c)(2).
29
with which to impute BEEOO with independent negligence.188 The Court will address each
argument in turn.
A.
Whether the Consolidated Plaintiffs and Their Respective Employers Were BEEOO’s
Independent Contractors
As a threshold issue, the parties dispute which of the parties working on West Delta 32 were
BEEOO’s independent contractors. Shamrock did not file an opposition to the pending motion for
summary judgment, and Wood Group does not dispute that it is BEEOO’s independent contractor,189
although certain Plaintiffs argue that Wood Group contracted only with BEE, rather than BEEOO.
GIS, however, contends that it was not an independent contractor of BEEOO because GIS was
working on West Delta 32 pursuant to the Alliance Agreement, not an MSA.190At oral argument,
however, BEEOO argued that the Alliance Agreement did not supercede the MSA, and the MSA
remained in play.
On August 21, 2014, BEEOO filed a motion for summary judgment covering much of the
same ground in its prior motions for summary judgment, concerning whether the Alliance
Agreement superseded the MSA and whether BEEOO (rather than BEE) was a party to the MSA
with GIS.191 On September 17, 2014, this Court denied the motion without prejudice to allow for
discovery, and ordered that should BEEOO refile the motion, it should address the applicability of
any theories of preclusion, and ordered both parties to address why the Alliance Agreement had not
been disclosed earlier.192 The Court is reluctant now to decide as a preliminary matter, based on
188
Rec. Doc. 360 at p. 1.
189
See Rec. Doc. 421-3 at p. 2.
190
Rec. Doc. 424 at p. 7.
191
See Rec. Doc. 403-1.
192
Rec. Doc. 465.
30
motions filed before its September 17, 2014 order, the question of whether GIS was in an
independent contractor relationship with BEEOO. Because the Court finds that summary judgment
should be denied for other reasons, it need not address this preliminary matter.
B.
The Independent Contractor Defense
Presuming that GIS, Shamrock, and Wood Group were all in fact independent contractors
of BEEOO on November 16, 2012, the Court must next determine whether BEEOO can be held
liable for the alleged acts or omissions of its independent contractors. Since the accident occurred
on a fixed platform in the Gulf of Mexico off the coast of Louisiana, 43 U.S.C. § 1333 requires this
Court to apply Louisiana substantive law. Under the Outer Continental Shelf Lands Act (“OCSLA”),
the law of the adjacent state applies unless the principles of the applicable state law conflict with any
federal law.193 Neither party has cited, nor has the Court found, any conflict between federal law and
the applicable Louisiana law. Therefore, the Court will apply Louisiana law to this dispute.
It is well-established under Louisiana law that “[a] principal is not liable for the torts of an
independent contractor unless the principal exercises operational control over or expressly or
impliedly authorizes the independent contractor’s actions.”194 The Fifth Circuit has explained the
“operational control” test as follows:
In order for [a principal] to be liable for the actions of an independent contractor, the
[principal] must have retained at least some degree of control over the manner in
which the work is done. It is not enough that he has merely a general right to order
the work stopped or resumed, to inspect its progress or to receive reports, to make
suggestions or recommendations which need not necessarily be followed, or to
prescribe alterations or deviations. Such a general right is usually reserved to
employers, but this does not mean that the contractor is controlled as to his methods
193
43 U.S.C. § 1333(a)(2)(A); Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 358 (1969).
194
Landry v. Huthnance Drilling Co., 889 F.2d 1469, 1471 (5th Cir. 1989) (citations omitted).
31
of work, or as to operative detail. There must be such a retention of right of
supervision that the contractor is not entirely free to do the work in his own way.195
In short, absent 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.”196
The principal/independent contractor relationship is determined, in large measure, by the
terms of any contract between the parties.197 The Fifth Circuit has determined that a principal does
not retain control over its independent contractor “[w]hen the contract assigns the independent
contractor responsibility for its own activities.”198 “To determine whether the exception for
operational control makes a principal liable, [courts] first examine the extent to which [the principal]
contractually reserved the right to control the work.”199
In this case, as stated above, the MSAs at issue establish that BEEOO engaged Wood Group,
Shamrock, and, arguably, GIS as independent contractors. The MSAs provide that BEEOO “shall
have no direction or control of the details of the Work, the CONTRACTOR, or its employees and
agents except in the results to be obtained.”200 The Wood Group and Shamrock MSAs additionally
195
Id. (citation omitted).
196
Coulter v. Texaco, Inc., 117 F.3d 909, 912 (5th Cir. 1997).
197
Ham v. Pennzoil Co., 869 F.2d 840, 842 (5th Cir. 1989).
198
Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 564 (5th Cir. 2003) (citations omitted)
(applying Louisiana negligence law as surrogate federal law pursuant to OCSLA).
199
Id.
200
Rec. Doc. 360-4 at p. 5, § 9.1, stating as follows:
IX. INDEPENDENT CONTRACTOR RELATIONSHIP
CONTRACTOR shall be an independent contractor with respect to the performance of all Work
hereunder and neither CONTRACTOR nor anyone employed by CONTRACTOR shall be deemed
for any purpose to be the employee, agent, servant, or representative of BLACK ELK in the
performance of any Work or any part thereof pursuant to this Agreement. BLACK ELK shall have
no direction or control of the details of the Work, the CONTRACTOR, or its employees and
agents except in the results to be obtained. The actual performance and supervising of all Work
hereunder shall be by CONTRACTOR, but BLACK ELK or its representatives shall have
unlimited access to the premises to determine whether Work is being performed by
32
stated that “[i]f contractor fails to make such inspection or fails to report such a defect to Black Elk,
Contractor shall be deemed to have assumed all risk and liability for any mishap that may occur by
reason of such defects in such equipment, machinery, tools, or other items.”201 The MSAs
additionally provide that the contractor is “responsible for initiating, maintaining, and supervising
all necessary safety precautions and programs in connection with the Work” and that the contractor
“shall take all necessary precautions for the safety of its employees, subcontractors, agents and
invitees at the work site.”202 The Court finds, accordingly, that BEEOO did not contractually
reserve the right to control the work at issue.
However, “the terms of a contract, while relevant, do not necessarily determine the outcome”
of the operational control inquiry.203 At this juncture, the Court must look beyond the contract to
CONTRACTOR in accordance with all of the provisions of this Agreement. At BLACK ELK’s
discretion, the Work may be reviewed or tested by a BLACK ELK representative and be subject to
his approval and acceptance.
201
See Rec. Doc. 270-4 at pp. 26, 57.
202
Rec. Doc. 360-4 at pp. 2–3, § 5.3, stating as follows:
V. PERFORMANCE OF WORK
CONTRACTOR is responsible for initiating, maintaining, and supervising all necessary safety
precautions and programs in connection with the Work. CONTRACTOR shall take all necessary
precautions for the safety of its employees, subcontractors, agents and invitees at the work site.
CONTRACTOR shall comply and cause its employees, subcontractors, agents and invitees
entering on BLACK ELK property in the performance of the Work, or in connection therewith, to
comply with all BLACK ELK safety rules that may be disclosed or known to CONTRACTOR and
applicable provisions of federal, state or local safety laws, rules, or regulations to prevent damage
or injury to any and all other items furnished by BLACK ELK that are employed in
CONTRACTOR’s Work. If apparent defects are found therein sufficient to make the use of any
such items unsuitable or unsafe, CONTRACTOR shall immediately notify BLACK ELK of such
defect or defects in writing and shall stop the portion of the Work affected by such defect or
defects until further notification by BLACK ELK.
203
Morgan v. Hercules Drilling Co., LLC, No. 09-2091, 2011 WL 2793229, at *3 (W.D. La. July 13, 2011)
(citing Dixon v. Danos and Curole Marine Contractors, Inc., No. 97-2611, 1998 WL 812393, at *2 (E.D. La. 1998)
(J. Vance)).
33
determine whether the principal’s actions constitute operational control.204 As stated above, the
operational control exception may apply where the principal gives an “express or implied order to
the contractor to engage in an unsafe work practice leading to an injury.”205 The Fifth Circuit has
instructed that operational control only arises if the principal exercises direct supervision over the
step-by-step process of accomplishing the work, such that the independent contractor is not entirely
free to do the work in his or her own way.206 District courts within this Circuit have found that
evidence of a principal giving direction on how to perform a project sufficiently raises a question
of fact about operational control.207
Here, the consolidated Plaintiffs have proffered sufficient evidence demonstrating a genuine
issue of material fact with respect to whether BEEOO provided step-by-step or “how to” instructions
with respect to the LACT upgrade project. Specifically, Plaintiffs assert that BEEOO’s construction
supervisor, Monte Richard, has testified that he gave Compass employees Don Moss and George
Wolfe specific instructions with respect to the LACT upgrade.208 Furthermore, Plaintiffs rely on an
e-mail dated November 16, 2012 at 4:21 p.m. to Doug Fehr, wherein Richard states that:
204
Dixon, 1998 WL 812393, at *2 (citing Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 193 (5th Cir.
1991) (reviewing the actual control asserted by Shell employees over the independent contractor in addition to the
contract itself)).
205
Coulter v. Texaco, Inc., 117 F.3d 909, 912 (5th Cir. 1997).
206
Grammer v. Patterson Servs., Inc,, 860 F.2d 639, 645 (5th Cir. 1998) (citing Guillory v. Conoco, Inc.,
521 So.3d 1220, 1223 (La. Ct. App. 3d Cir. 1988)); Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 564
(5th Cir. 2003); LeJeune v. Shell Oil Co., 950 F.2d 267, 270 (5th Cir. 1992).
207
See, e.g., Ballew v. Texaco, Inc., No. 94-3946, 1995 WL 638595, at *2 (E.D. La. Oct. 27, 1995) (finding
a plaintiff’s affidavit created a genuine issue of fact where the plaintiff stated that, every morning, he attended a
safety meeting at which a company man gave directions regarding safety conditions and where the plaintiff
understood he was to follow the company man’s orders); Williams Field Servs. Gulf Coast, L.P. v. Mariner Energy,
Inc., No. 06-03846, 2011 WL 4372710, at *4 (S.D. Tex. Sept. 19, 2011) (finding a fact question concerning whether
employees of the principal were issuing orders that rose to the level of operational control); see also Bartholomew v.
CNG Producing Co., 832 F.2d 326, 329–30 (5th Cir. 1987) (finding operational control where a company man
instructed the crew against cleaning the rig floor, a condition which directly caused the plaintiff’s accident).
208
See Rec. Doc. 410-2 at pp. 10–11.
34
Prior to the WD 32 LACT project, I spoke to the Inspector [sic] Don Moss and
George Wolf [sic] and went over the scope of adding the divert valve and piping to
the LACT unit, after completing the float cell project. We discussed isolating the
LACT unit piping, assuring it was de-pressurized and drained of fluids, removing the
outlet spool, installing the spool piece that included the divert valve and isolating the
bad oil line that passes in the overhead pipe rack going to the bad oil tank, shutting
all inlets into the line and shutting a valve at the tank or install [sic] a skillet in it,
then draining the line of all liquids. Then using the piping that was to run from the
divert vale [sic] to the bad oil line to determine where the line would need to be cold
cut. Once safe to do so the line would be cold cut, vented plumbers plugs would be
installed in each end of the pipe, vent lines from the plumbers plugs run to a safe area
and using a gas detector make sure area [sic] is safe to weld. Slip on flanges would
then be welded onto the ends of the pipe. Once the welding completed [sic] the
plumbers plugs to be removed, and the spool installed and all flanges properly
tightened. Once installed the isolation points opened and the line returned to
service.209
Additionally, Plaintiffs have proffered evidence that BEEOO initiated “hot work” on the
LACT unit in February 2012, but that Troy Durkes, BEEOO’s Operations Supervisor, decided to
shut down the project “due to lack of authorization and to allow for the re-design of the project to
eliminate field welds.”210 In an e-mail sent on February 20, 2012 to Huey Cognevich, Kirk Trascher,
Richard, and Heith Gaspard, Durkes states that “[w]e are stopping the job at WD32 from going into
the construction phase and we are sending the crew back in. The primary reason for this is that we
have no approved drawings from BSEE allowing us to perform the work.”211 On November 2, 2012,
Monte Richard e-mailed Don Moss and Bill Barlett that “Don will have LACT unit piping installed
next week.”212 On November 11, 2012, Moss notified various BEEOO managers, including Richard,
that “we are missing the piping and diverter valve for the lact skid upgrade job . . .”213 On November
209
Rec. Doc. 410-1.
210
Rec. Doc. 423 at p. 2 (citing Rec. Doc. 423-2).
211
Rec. Doc. 423-2.
212
Rec. Doc. 423-3.
213
Rec. Doc. 423-4.
35
12, 2012, Richard sent an email to Moss stating “install plumbers plugs and make the 2 field welds
for the tie in.”214 Wood Group contends that these emails demonstrate that Richard made the
decision that, instead of having the missing pipe re-fabricated, the construction crew would revert
to the original design which required welding.215
As stated above, a principal’s actions constitute operational control “only if the principal has
direct supervision over the step-by-step process of accomplishing the work.”216 The Court finds that
the pleadings, depositions, and evidence submitted in opposition to BEEOO’s motions for summary
judgment support the conclusion that BEEOO retained operational control over the LACT upgrade
project, or at least raise a genuine issue of material fact as to such. Accordingly, BEEOO’s motion
for summary judgment with respect to the independent contractor defense is denied.
C.
Independent Negligence
Pursuant to § 1333(2)(A) of OCSLA, Plaintiffs’ negligence claim is governed by the law of
the state adjacent to that portion of the seabed where they were injured—in this case, Louisiana.
Here, BEEOO seeks summary judgment on alleged violations of Article 2315 and Article 2317.1.
1.
Negligence Under Article 2315
Pursuant to Louisiana Civil Code article 2315, “[e]very act whatever of man that causes
damage to another obliges him by whose fault it happened to repair it.” To prove negligence under
Louisiana law, a plaintiff must show that: (1) “the defendant had a duty to conform his conduct to
a specific standard;” (2) “the defendant’s conduct failed to conform to the appropriate standard;” (3)
“the defendant’s substandard conduct was a cause in fact of the plaintiff’s injuries;” (4) “the
214
Rec. Doc. 423-5.
215
Rec. Doc. 423 at p. 3.
216
Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 564 (5th Cir. 2003).
36
defendant’s substandard conduct was a legal cause of the plaintiff’s injuries;” and (5) “actual
damages.”217
Literally interpreted, a tortfeasor may be held liable under Article 2315 for any damage
remotely caused by his or her fault.218 However, “[a]s a matter of policy, the courts, under the scope
of duty element of the duty-risk analysis, have established limitations on the extent of damages for
which a tortfeasor is liable.” 219 Under Louisiana law, determining the scope of a duty is “ultimately
a question of policy as to whether the particular risk falls within the scope of the duty.”220 There
“must be an ‘ease of association’ between the rule of conduct, the risk of injury, and the loss sought
to be recovered.”221 That inquiry typically requires consideration of the facts of each case; therefore,
“[a]lthough duty is a question of law, Louisiana courts do not grant summary judgment on the issue
of duty where factual disputes exist or where credibility determinations are required.”222
In deciding whether to impose a duty in a particular case, Louisiana courts examine “whether
the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to
support the claim that the defendant owed him a duty.”223
217
Lemann v. Essen Lange Daiquiris, Inc., 2005–1095 (La. 3/10/06); 923 So.2d 627.
218
Severn Place Assocs. v. Am. Bldg. Servs., Inc., 05-859 (La. App. 5 Cir. 4/11/06); 930 So.2d 125, 127.
219
Id. (citations omitted).
220
Roberts v. Benoit, 605 So.2d 1032, 1044 (La. 1991).
221
Severn, 930 So.2d at 127 (citation omitted).
222
Bass v. Superior Energy Servs., Inc., No. 13-5175, 2015 WL 460378, at *10 (E.D. La. Feb. 3, 2015)
(Brown, J.) (citing Parish v. L.M. Daigle Oil Co., Inc., 98-1716 (La. App. 3 Cir. 6/23/99); 742 So.2d 18, 10–11
(“Summary judgment is proper only where no duty exists as a matter of law and no factual or credibility disputes
exist.”); Coates v. Nettles, (La. App. 1 Cir. 1990); 563 So.2d 1257, 1259 (“Where there is no factual dispute which
exists and no credibility determination required, the question of the existence of a duty is a legal question within the
province of the trial judge.”). See also Robertson v. Blanchard Contractors, Inc., No. 11-1453, 2012 WL 6202988
(E.D. La. Dec. 12, 2012) (Brown, J) (same).
223
Audler v. CBC Innovis Inc., 519 F.3d 239, 249 (5th Cir. 2008) (citation omitted).
37
a.
Statutory Duties
Multiple parties contend that the requirements of 30 C.F.R. § 250.1900, pertaining to safety
and environmental management systems (“SEMS”), imposed a statutory duty on BEEOO to provide
safe working conditions to all personnel aboard the West Delta 32.224 Canencia Plaintiffs, for
example, argue that the federal regulations, passed in the wake of the Deepwater Horizon incident,
place affirmative duties on BEEOO to provide workers with a safe place to work, and BEEOO
assumed those duties when it formulated and implemented its Safety Manual.225 Canencia Plaintiffs
allege that in formulating a “Safe Work Manual” pursuant to the requirements of federal regulations
and requiring its contractors to follow that manual, BEEOO assumed the duty of providing for the
safety of the independent contractors on its platform.226 Canencia Plaintiffs contend that BEEOO
could not contract away its safety responsibilities in light of the new federal regulations.227
Furthermore, Dominguez and GIS argue that BEEOO’s alleged violation of BSEE regulations, as
well as its own Welding, Burning and Hot Tapping Safe Practices and Procedures Plan, constitutes
negligence per se. BEEOO concedes that the regulations subject violators to civil and criminal
penalties but maintains that they do not create any independent cause or right of action for private
plaintiffs.228 Although the regulations in question are recent, opposing parties have pointed to no
case law, either in their briefs or at oral argument, holding that the SEMS regulations impose civil
liability on platform owners, nor could the Court find any.
224
E.g. Rec. Doc. 414 at p. 5.
225
Id.
226
Id. at p. 6 (citing Dep. of Kenneth Anthony, a former BEEOO employee, Ex. 1 at p. 29).
227
Id. at p. 11.
228
Rec. Doc. 458 at p. 7 (citing Romero v. Mobil Exploration & Producing N. Am., Inc., 939 F.2d 307,
310–11 (5th Cir. 1997)).
38
The Fifth Circuit has rejected the idea that OCSLA regulations themselves create a duty
under Louisiana negligence law.229 In Romero v. Mobil Exploration and Producing North America,
Inc., the Fifth Circuit held that federal drilling regulations promulgated by the Department of the
Interior Minerals Management Service (“MMS”) did not give rise to liability that would otherwise
be barred by the independent contractor doctrine.230 There, the Fifth Circuit held that no cause of
action arose from the breach of the MMS regulations “because the regulations were not created
solely to ‘provide safeguards or precautions for the safety of others.’”231 Its name alone suggests that
the SEMS regulations do not solely provide for the safety of others; as noted in § 250.1901, the goal
of a SEMS program “is to promote safety and environmental protection by ensuring all personnel
aboard a facility are complying with . . . policies and procedures . . .”
Here, Plaintiffs argue that pre-SEMS cases finding that a violation of MMS regulations did
not give rise to a private cause of action “were completely obviated by the passage of new CFRs.”232
Plaintiffs attempt to distinguish as inapplicable the Fifth Circuit’s decision in Fruge ex rel. Fruge
v. Parker Drilling Co., which held that federal regulations did not create additional civil liability
beyond that already imposed by state law and rejected an argument by plaintiffs that cases decided
prior to the passage of MMR regulations were inapplicable because the new regulations shifted
responsibility to mineral lessees without regard to questions of “operational control” or the
authorization of unsafe work practices.233 As noted by BEEOO, however, this is essentially the same
229
Dupre v. Chevron U.S.A., Inc., 109 F.3d 230, 231 (5th Cir. 1997).
230
Romero, 939 F.2d at p. 309.
231
Id.
232
Rec. Doc. 414 at p. 11.
233
Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 561 (5th Cir. 2003).
39
argument as was made by the plaintiffs in Fruge itself, where the Fifth Circuit ultimately found that
nothing in the new MMS regulations preempted existing state law.234
Here, Plaintiffs argue essentially that the SEMS regulations speak for themselves by
providing specific guidance as to the responsibility ultimately to be borne by platform owners.235
Plaintiffs have not pointed to a single case or any legislative history suggesting that the SEMS
regulations legislatively overruled all prior cases holding that federal regulations do not preempt the
independent contractor defense simply by creating standards regarding workplace safety. Without
guidance from the Fifth Circuit or the Louisiana Supreme Court finding that the federal regulations
created a private cause of action, the Court declines to find that they imposed a statutory duty upon
BEEOO that may be enforced in this Court by the Consolidated Plaintiffs. The Court notes,
however, that even where there is no implied cause of action from the mere breach of SEMS
regulations, “Louisiana law does recognize that applicable federal regulations may be relevant
evidence in weighing a defendant's culpability.”236
b.
Legal Duties
Consolidated Plaintiffs also allege that Black Elk had an independent legal duty of care to
the workers aboard the West Delta 32 by virtue of its creation of the hazard that resulted in
Plaintiffs’ injuries and its failure to supervise or provide a safe place to work despite assuming
control and responsibility for the operation. Plaintiffs allege that BEEOO was independently
negligent because it created an unnecessary hazard when it required GIS to perform welding in the
field rather than on land, rushed the LACT unit work, and failed to enforce its own safety policies
234
Id. at p. 563.
235
Rec. Doc. 414 at p. 11.
236
Romero v. Mobil Exploration & Producing N. Am., Inc., 939 F.2d 307, 311 (5th Cir. 1991).
40
through Srubar, the Person in Charge on the platform.
It is generally true that an “owner or operator of a facility has the duty of exercising
reasonable care for the safety of a person on his premises and the duty of not exposing such persons
to unreasonable risks of injury or harm.”237 However, this duty does not extend so far as to require
the owner or operator to intervene in and correct the work practices selected by an independent
contractor.238 Rather, “in determining whether a principal owes a duty to employees of independent
contractors, courts consider whether the hazard was created by the principal or the independent
contractor.”239
The Fifth Circuit has found that when a principal has specifically authorized and created a
hazardous situation by approving plans for certain work to be done, the principal had a duty to take
reasonable steps to keep workers safe in the areas that had been modified with its approval.240 In
Dupre v. Chevron U.S.A., Inc., the Fifth Circuit determined that Chevron, the owner of an offshore
platform, had a duty to take reasonable steps to make and keep its platform safe for workers thereon
because “[u]nlike the typical vicarious liability case in which the independent contractor created the
danger, in this case Chevron specifically authorized any hazardous situation created when it
expressly approved the plan . . . for the installation and set-up of its rig.”241 Similarly, in
237
Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir. 1994) (citations omitted); Mundy v. Dep’t of
Health and Human Res., 620 So.2d 811, 813 (La. 1993).
238
Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 551 (5th Cir. 1987); Kent v. Gulf States Utils., 418 So.
2d 493, 500 (La. 1982).
239
Thomas v. Burlington Res. Oil & Gas Co., No. 99-3904, 2000 WL 1528082, at *2 (E.D. La. Oct. 13,
2000) (Barbier, J.); see also Dupre v. Chevron U.S.A., Inc., 33 F.3d 7, 7–8 (5th Cir. 1994) (“We do not reject but
fully accept the general principal that a platform principal owes no general duty to an independent contractor's
employees to correct a hazard on the platform which was created by the contractor. We are simply unwilling to say,
without the benefit of development of the facts . . ., that here Chevron owed no duty or, of course, that any such duty
had been breached.”) (emphasis added).
240
Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir. 1994).
241
Id.
41
Bartholomew v. CNG Producing Co., the Fifth Circuit held a principal liable for the acts of an
independent contractor where the principal’s representative expressly ordered the independent
contractor to engage in unsafe work practices that eventually caused an injury to the plaintiff.242
In Graham v. Amoco Oil Co., however, the plaintiffs argued, as Plaintiffs do here, that
Amoco was liable for independent acts of negligence by creating an unsafe workplace.243 The
plaintiffs also argued that Amoco was independently negligent because its “company man” observed
that the independent contractor used procedures in unloading pipe that violated Amoco’s safety
manual and failed to correct them.244 The Graham court, however, rejected the argument, finding
that the contractual allocation of responsibilities between the contractor and Amoco precluded a
finding that Amoco was independently negligent, and that Amoco did not assume any extracontractual duties otherwise.245
BEEOO argues that it owed Plaintiffs no duty to provide a safe work place, and because
“whatever steps were taken to dictate the actions that led up to the explosion on November 16, 2012,
they did not involve [BEEOO].”246 BEEOO also argues that it was not negligent because it had little
to no control over the operations onboard the West Delta 32, it did not rush the LACT work, that
even to the extent it gave instructions for work, they were not followed by the contractors, BSEE
approved of the order to allow field welds on the LACT unit, and that using the prefabricated piping
as originally intended still required two welds.247 Many of BEEOO’s arguments amount to questions
242
832 F.2d 326, 329–30 (5th Cir. 1987).
243
21 F.3d 643, 646 (5th Cir. 1994).
244
Id. at 645.
245
Id. at 647.
246
Rec. Doc. 360-1 at p. 13.
247
Rec. Doc. 454 at p. 4.
42
of fact to be considered at the breach stage by a trier of fact, and do not necessarily speak to whether
BEEOO created a hazardous situation out of which a duty of care could arise.
Although duty is a question of law, the Court finds that opposing parties have proffered
sufficient evidence of a genuine issue of material fact that precludes summary judgment on whether
BEEOO created a hazardous situation aboard the West Delta 32 and therefore was independently
negligent. First, Canencia Plaintiffs have submitted evidence demonstrating that BEEOO scrapped
the original plan to use field welds on the LACT unit because it was aware that there are “hazards
associated with hot work on the facility.”248 Gipson and Srubar Plaintiffs have submitted evidence,
in the form of testimony by Monte Richard, that BEEOO had a policy of trying to minimize offshore
welding, and eliminating offshore welding on the LACT project “could have been feasible.”249
Voclain Plaintiff also points to deposition testimony by Richard stating that, although GIS had
offered to fabricate something that could eliminate all of the field welds, Richard gave the
instruction to nevertheless employ a procedure that required field welds.250 Citing an e-mail by
Richard, BEEOO responds that the LACT work would have required at least two field welds no
matter which plan was used.251 Richard’s own conflicting testimony, however, at the very least
displays a disputed issue of material fact concerning whether BEEOO approved of a hazardous work
plan when a safer one was available.
Disputed issues of material fact also surround the question of whether BEEOO put time
pressures on the workers aboard the West Delta 32. BEEOO points to testimony by Moss and
248
See Rec. Doc. 415-19 at p. 1; Rec. Doc. 415-1 at pp. 73-74; Rec. Doc. 415-4 at pp. 262-65.
249
Rec. Doc. 409-5 at pp. 370–72.
250
Rec. Doc. 414-4 at pp. 198–99.
251
Rec. Doc. 454 at pp. 5–6 (citing Rec. Doc. 420-8).
43
Richard stating that the West Delta 32 could not come online until Energy XXI’s West Delta 30E
platform returned online, and that therefore the men knew that there was no rush to complete the
LACT unit work.252 Canencia Plaintiffs, however, have submitted evidence that on November 12,
2012, Monte Richard sent an e-mail to Brian Richard and Kory Delcambre of GIS, as well as Moss,
stating that the piping that had gone missing needed to be found “asap.”253 Moss later testified that
when he received that e-mail, he understood that BEEOO had given the contractors time constraints
to finish the job on November 16, 2012.254 Therefore, Plaintiffs have raised a disputed issue of
material fact concerning whether BEEOO rushed its contractors to complete the LACT work and
thereby created a hazardous situation.
“Although duty is a question of law, Louisiana courts do not grant summary judgment on
the issue of duty where factual disputes exist or where credibility determinations are required.”255
Where, as here, the Court cannot determine an issue of law without determining the credibility of
witnesses or deciding a disputed issue of material fact, summary judgment on the question of
whether BEEOO had an independent legal duty to provide safe working conditions is precluded.
Finally, the Court notes that the parties continue to dispute whether all aboard the West Delta 32
were independent contractors. BEEOO argues that all aboard the West Delta 32 were independent
contractors or employed by independent contractors, and the Court here denies summary judgment
252
Rec. Doc. 454 at p. 6 (citing Rec. Doc. 415-2 at pp. 86–88, 217–18).
253
Rec. Doc. 415-17.
254
Rec. Doc. 415-2 at p. 371.
255
Bass v. Superior Energy Servs., Inc., No. 13-5175, 2015 WL 460378, at *10 (E.D. La. Feb. 3, 2015)
(Brown, J.) (citing Parish v. L.M. Daigle Oil Co., Inc., 98-1716 (La. App. 3 Cir. 6/23/99); 742 So.2d 18, 10–11
(“Summary judgment is proper only where no duty exists as a matter of law and no factual or credibility disputes
exist.”); Coates v. Nettles, (La. App. 1 Cir. 1990); 563 So.2d 1257, 1259 (“Where there is no factual dispute which
exists and no credibility determination required, the question of the existence of a duty is a legal question within the
province of the trial judge.”). See also Robertson v. Blanchard Contractors, Inc., No. 11-1453, 2012 WL 6202988
(E.D. La. Dec. 12, 2012) (Brown, J) (same).
44
because, as a matter of law, it cannot determine whether BEEOO owed its contractors a duty without
making factual and credibility determinations that are best left to a fact-finder—here, the jury.
However, the Court notes that its analysis concerning the duty element would be different if it
examined the question as applied to parties who are not independent contractors, an issue that
BEEOO alluded to in a footnote but did not brief.256 Because BEEOO’s motion for summary
judgment rested so heavily on arguments concerning independent contractors, the Court need not
address the duty element as applied to parties whose relationships to BEEOO were not governed by
an MSA at this time.
2.
Liability Under Article 2317.1
To prevail on a custodial liability claim, a plaintiff must demonstrate: (1) the object was in
the defendant’s custody, (2) the thing contained a vice or defect which presented an unreasonable
risk of harm to others; (3) the defective conditions caused the damage; (4) the defendant knew or
should have known of the defect (5) the damage could have been prevented by the exercise of
reasonable care, and (6) the defendant failed to exercise such reasonable care.257
BEEOO argues that it is not negligent under Louisiana Civil Code Article 2317.1 because
the WD-32 platform was not in BEEOO’s custody on November 16, 2012, the platform and its
equipment were not defective, and BEEOO had no knowledge of the alleged defect.258
a.
Custody
BEEOO admits that it owns the WD-32 platform, but argues that the platform was not in
256
Rec. Doc. 270-1 at p. 3 n.11 (“This factor [concerning parties who were not subject to MSAs with
BEEOO] may change the analysis, but it should not change the result.”).
257
258
Cormier v. Dolgencorp, Inc., 136 F. App'x 627, 628 (5th Cir. 2005).
Rec. Doc. 360-1.
45
BEEOO’s custody at the time of the incident because BEEOO had no employees or personnel
aboard.259 According to BEEOO, “[c]ustody, distinct from ownership, refers to a person’s
supervision and control (garde) over a thing posing an unreasonable risk of harm.”260 BEEOO relies
on a case from another Section of this court, wherein the court found that a platform owner was not
liable under Article 2317.1 because it did not exercise the kind of supervision and control necessary
to establish custody.261 Citing Bethea v. Great Atlantic & Pacific Tea Co., Canencia Plaintiffs
respond that an owner cedes custody or garde when it has a limited ability to inspect or enter the
premises and an inability to alter the premises.262 Here, they argue, BEEOO had unlimited access
to enter the platform, and at least once daily, a BEEOO supervisor would inspect the platform
personally or contact a platform operator “and communicate as to what was going on.”263
“‘Custody,’ for purposes of strict liability, does not depend upon ownership, but involves the
right of supervision, direction, and control as well as the right to benefit from the thing
controlled.”264 Here, the question of whether BEEOO retained a right to supervise, direct and control
activities aboard the West Delta 32 is heavily disputed; it is, in fact, at the very heart of BEEOO’s
independent contractor defense. In Hammons v. Forest Oil Corp., cited by BEEOO, the court
granted summary judgment on the issue of custodial liability after noting that the plaintiff had
259
Id. at p. 19.
260
Id. at p. 20 (quoting Pierce v. Exxon Mobil Corp., No. 12-2224, 2013 WL 1856079, at *6 (E.D. La. Apr.
30, 2013).
261
Id. at pp. 20–21 (citing Hammons v. Forest Oil Corp., No. 06-9173, 2008 WL 348765, at *4 (E.D. La.
Feb. 7, 2008) (Africk, J.)).
262
Rec. Doc. 415 at p. 17 (citing Bethea v. Great Atlantic & Pacific Tea Co., 2007-1385 (La. App. 4 Cir.
9/30/99); 22 So.3d 1114, 1115).
263
Id.
264
Haydel v. Hercules Transp., Inc., 94-0016 (La. App. 1 Cir. 4/7/95), 654 So. 2d 408, 414, writ denied,
95-1171 (La. 6/23/95), 656 So. 2d 1018.
46
already conceded that the defendant had not exercised operational control over the activities in
question.265 Here, however, opposing parties have argued vehemently that BEEOO retained
operational control—and thus, in essence, that it had not ceded custody of the West Delta 32
platform. Therefore, the Court finds that there is a disputed issue of material fact that precludes
summary judgment on the question of whether BEEOO retained custody of the West Delta 32.
b.
Defect
Next, BEEOO argues that its platform, piping, and tanks were not defective under Article
2317.1.266 BEEOO contends that the purpose of tanks and piping on a production platform is to hold
and move hydrocarbons, and “[t]hus, the fact that there were allegedly hydrocarbons in piping or
tank aboard an oil and gas platform does not constitute a defect or unreasonably hazardous condition
as contemplated by Article 2317.1.”267 Moreover, BEEOO argues that “not every defect gives rise
to liability. The defect must be of such a nature to constitute a dangerous condition, which would
reasonably be expected to cause injury to a prudent person using ordinary care under the
circumstances.”268 BEEOO argues that, in light of the undisputed fact that the platform had been shut
in at the time of the explosion, the explosion was caused by one or more parties on the platform not
exercising “ordinary care under the circumstances.”269 Tajonera and Corporal Plaintiffs, who engage
with the arguments concerning liability under 2317.1 in greater detail than most opposing parties,
do not directly respond to the question of whether the platform, piping and tanks aboard the West
265
Hammons, 2008 WL 348765, at *4.
266
Rec. Doc. 360 at pp. 20–21.
267
Id. at pp. 21–22.
268
Id. at p. 22 (quoting Ruschel v. St. Amant, 11-78 (La. App. 5 Cir. 5/24/11); 66 So. 3d 1149, 1153).
269
Id.
47
Delta 32 were defective. Instead, they argue that the question of whether a defect presents an
unreasonable risk of harm requires a balancing of the risk and utility of the condition.270
“A defect for the purposes of article 2317 is a flaw or condition of relative permanence
inherent in the thing as one of its qualities.”271 Thus, “[a] temporary condition may constitute a
hazard, but it does not constitute a defect as contemplated by article 2317.”272 Here, Consolidated
Plaintiffs do not appear to argue that the alleged defect in question was anything other than the
condition of the pipes, which had not been purged of flammable fluid at the time of welding work
aboard the West Delta 32. Louisiana courts, however, have repeatedly found that such temporary
conditions do not amount to a “defect” as contemplated by Article 2317.273 Here, the fluid inside the
pipes was a temporary condition meant to be purged before welding work would begin. Although
the failure to do so may constitute negligence, the Court finds that the fluid’s temporary presence
inside the pipes aboard the West Delta 32 do not amount to a defect as contemplated by Article
2317.
Because the Court finds that summary judgment on the issue of liability under Article 2317
is appropriate because Consolidated Plaintiffs have failed to sufficiently allege a “defect,” the Court
270
Rec. Doc. 435 at p. 21.
271
Duffy v. Conoco, Inc., No. 95-0600, 1996 WL 271635, at *6 (E.D. La. May 21, 1996) (Vance, J.) (citing
Murry v. Alan Energy Corp., 863 F. Supp. 315, 319 (E.D. La. 1994); Crane v. Exxon Corp., U.S.A., 613 So. 2d 214,
219 (La. App. 1st Cir. 1992)).
272
Dauzat v. Thompson Const. Co., 02-989 (La. App. 5 Cir. 1/28/03), 839 So. 2d 319, 323 (La. Ct. App.
2003) (citing Barron v. Webb, 29,707 (La. App. 2 Cir. 8/20/97), 698 So. 2d 727, writ denied, 97,2357 (La.
11/26/97), 703 So. 2d 651).
273
See Hammons v. Forest Oil Corp., No. 06-9173, 2008 WL 348765, at *4 (E.D. La. Feb. 7, 2008);
Dauzat, 839 So. 2d at 323 (finding that a hole in a concrete slab, into which an electrical lift fell, causing the plaintiff
on the lift to lurch forward, was a temporary condition that did not constitute a defect); Crane, 613 So. 2d at 219
(finding that an open chute in a concrete slab was a temporary condition designed to be filled and then covered, and
therefore was not a defect).
48
need not address the question of whether BEEOO had actual or constructive knowledge of the
defect.
V. Conclusion
Accordingly,
IT IS HEREBY ORDERED that BEEOO’s “Motion for Partial Summary Judgment”274 is
DENIED.
IT IS FURTHER ORDERED that BEEOO’s “Motion for Summary Judgment”275 is
GRANTED IN PART and DENIED IN PART. The motion is GRANTED insofar as it seeks
summary judgment on the issue of whether BEEOO is subject to liability under Article 2317. The
motion is DENIED as to all other parts.
4th
NEW ORLEANS, LOUISIANA, this ________ day of November, 2015.
_________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
274
Rec. Doc. 270.
275
Rec. Doc. 360.
49
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