Wolz v. BP Exploration and Production, Inc. et al

Filing 81

ORDER & REASONS: ORDERED that BP's Motion for Summary Judgment (Rec. Doc. 69) is GRANTED. FURTHER ORDERED that Plaintiff's claims against BP in the above-captioned matter are hereby DISMISSED WITH PREJUDICE. FURTHER ORDERED that BP's Motion in Limine to Exclude the Testimony of G. Randolph Rice, Ph.D (Rec. Doc. 68) and Motion for Leave to File Reply (Rec. Doc. 80) are hereby DENIED AS MOOT. FURTHER ORDERED that the oral argument scheduled for Wednesday, February 25, 2015 at 9:30 regarding the instant motion and BP's Motion in Limine (Rec. Doc. 68) are hereby CANCELLED. Signed by Judge Carl Barbier on 2/24/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICKEY WOLZ

CIVIL ACTION

VERSUS

NO: 13-5112

BP EXPLORATION AND PRODUCTION,
INC., ET AL

SECTION: J(2)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
69) filed by Defendant, BP Exploration & Production, Inc. ("BP"),
as well as an Opposition

(Rec. Doc. 77) filed by Plaintiff, Rickey

Wolz ("Plaintiff). This motion is set for oral argument on February
25, 2015. Having considered the motion, the parties’ submissions,
the record, and the applicable law, the Court finds, for the
reasons expressed below, that the motion should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
This

matter

arises

from

injuries

allegedly

sustained

by

Plaintiff on August 2, 2012. On the date of the incident, Plaintiff
was employed by DXP Enterprises, Inc. ("DXP"), a company which had
been hired as an independent contractor by BP to provide services
aboard the MAD DOG platform, which was owned and operated by BP.
DXP sent Plaintiff to the MAD DOG platform to diagnose and repair
a malfunctioning vertical caisson pump ("the pump"), used to pump
sea water up to the rig. In anticipation of the examination and

1

repairs of the malfunctioning pump, a chain hoist was attached to
the pump, and a nylon strap was tied to the shaft coupling. In
order to diagnose the pump's defect, the involved parties devised
a plan to use the chain hoist to lift the pump seventy (70) feet
out of its outer-caisson piping.
While the parties were in the process of implementing the
plan, Plaintiff decided to untie the nylon strap which was attached
to the pump. While a rigger was unrigging the chain hoist in an
effort to lift the pump, the pump crashed down, onto Plaintiff's
hand, which was located directly underneath the pump. Plaintiff
alleges that he sustained severe injury to his hand, requiring
numerous surgeries.
On July 18, 2013, Plaintiff filed the present lawsuit in this
Court. As defendants, Plaintiff initially named BP, as the owner of
the platform, and B&S Welding Inc. ("B&S Welding"), as the company
who had allegedly employed the rigger. After the Court granted
summary judgment in favor of B&S upon a finding that B&S did not
employ

the

rigger

performing

rigging

services

on

the

pump,

Plaintiff amended his complaint to name GIS as the employer of the
rigger. (Rec. Doc. 32, p. 2). In his complaint, Plaintiff contends
that BP's negligence served as the proximate cause of his injuries.
Specifically,

Plaintiff

claims

that

BP's

conduct

constituted

negligence by failing to provide a reasonably safe place to work,
failing to take precautions for Plaintiff's safety, and failing to

2

provide adequate personnel for the job in question, amongst other
things. (Rec. Doc. 1, p. 3). BP then filed the instant motion,
seeking summary judgment in its favor on Plaintiff's claims, on the
basis

that

it

is

not

liable

to

Plaintiff

under

either

the

independent contractor doctrine or under a theory of independent
negligence.
PARTIES' ARGUMENTS
In its motion, BP contends that no genuine issue exists
regarding the fact that it may not be found liable for Plaintiff's
injuries. First, BP relies on the independent contractor doctrine
for its assertion that as a principal, it is not liable for the
negligent

acts

of

Plaintiff,

an

employee

of

its

independent

contractor, DXP. Additionally, BP also argues that it may not be
found liable for any alleged independent acts of negligence which
Plaintiff alleges contributed to his injuries. BP asserts that it
owed Plaintiff no duty to provide a safe work place, and that even
if it did owe such a duty, it did not breach this, as it provided
Plaintiff with an adequately safe work environment and safe tools
to perform his work. Finally, BP maintains that it is not liable
for any harm caused by the falling of the pump, because the pump
posed an open and obvious "pinch point"

of which Plaintiff, as an

experienced seaman should have been aware.
In his Opposition, Plaintiff does not dispute that he was an
independent contractor of BP or that the pinch point posed by the

3

pump was open and obvious. However, Plaintiff maintains that BP
should be found liable for the negligent acts of its site lifting
specialists, whom he alleges were directly employed by BP and who
developed and approved the lift plan. Plaintiff also asserts that
BP owed Plaintiff a duty to exercise reasonable care to ensure his
safety, which it breached by allowing Plaintiff to handle the
rigging of the pump when he was not one of the certified riggers
authorized to do so. Plaintiff also briefly mentions that BP's
motion is premature because BP has not produced Marty Colvin, the
Person in Charge at the time of the accident, and Martin Sanchez,
who participated in the investigation of the incident, both of whom
Plaintiff contends are witnesses vital to his case.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”

Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c));
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
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.”
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398 (5th Cir. 2008).

All reasonable inferences are drawn in
4

favor of the nonmoving party, but a party cannot defeat summary
judgment with conclusory allegations or unsubstantiated assertions.
Little, 37 F.3d at 1075. A court ultimately must be satisfied that
“a reasonable jury could not return a verdict for the nonmoving
party.” Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party “must come
forward with evidence which would ‘entitle it to a directed verdict
if the evidence went uncontroverted at trial.’” Int’l Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991)
(citation omitted). The nonmoving party can then defeat the motion
by either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325.

The burden

then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324.

The nonmovant may not rest

upon the pleadings, but must identify specific facts that establish

5

a genuine issue for trial.

See, e.g., id. at 325; Little, 37 F.3d

at 1075.
DISCUSSION
BP contends that summary judgment in its favor is appropriate
on Plaintiff's claims, because it may not be found liable either
under the independent contractor doctrine or for its alleged acts
of independent negligence. In rebuttal, Plaintiff alleges that
summary judgment is not appropriate, as a genuine issue remains
regarding whether BP may be found liable for the negligent acts of
its employees, namely its lift specialists who developed the lift
plan and supervised Plaintiff at the time of his accident, as well
as BP's independent negligent acts which contributed to Plaintiff's
injuries.
As an initial matter, the Court finds that Louisiana law
applies to Plaintiff's claims. The MAD DOG platform is located on
the Outer Continental Shelf of the Gulf of Mexico, offshore of
Louisiana. As such, in accordance with the Outer Continental Shelf
Lands

Act,

Louisiana

law

governs

any

disputes

arising

from

incidents which may have occurred aboard the MAD DOG platform.1
1
The portion of the Outer Continental Shelf Lands Act regarding choice of
law provides in pertinent part:

To the extent that they are applicable and not inconsistent with
this subchapter or with other Federal laws and regulations of the
Secretary now in effect or hereafter adopted, the civil and criminal
laws of each adjacent State, now in effect or hereafter adopted,
amended, or repealed are declared to be the law of the United States
for that portion of the subsoil and seabed of the outer Continental
Shelf, and artificial islands and fixed structures erected thereon,
which would be within the area of the State if its boundaries were

6

A. Independent Contractor Defense
BP first asserts that it may not be found liable for the
negligent conduct of Plaintiff or his employer, DXP, as DXP was an
independent contractor of BP at the time of the accident. Under
what BP terms the "independent contractor defense," Louisiana law
recognizes that "a principal generally is not liable for any
negligent acts committed by its independent contractor in the
course of performing its contractual duties." McCarroll v. BP
America Prod. Co., No. 10-1834, 2011 WL 4727831, at *2 (E.D. La.
Oct. 6, 2011) (Vance, J.) (citing Ainsworth v. Shell Offshore,
Inc., 829 F.2d 548, 549 (5th Cir. 1987)).

However, despite this

generality, a principal may be found liable for the acts of its
independent contractor if: (1) the independent contractor engages
in

an

ultrahazardous

activity;

or

(2)

the

principal

retains

"operational control" over the independent contractor's negligent
acts or expressly or impliedly authorizes those acts. Id (citing
Graham v. Amoco Oil Co., 21 F.3d 643, 645 (5th Cir. 1994)).
Plaintiff

does

not

dispute

the

applicability

of

the

independent contractor defense. Plaintiff also does not contend
that he was engaged in an ultrahazardous activity at the time of
his injury. Additionally, Plaintiff has failed to provide the Court
extended seaward to the outer margin of the outer Continental Shelf
. . .
43 U.S.C. § 1333. Because Louisiana is considered the state adjacent to the MAD
DOG platform, the laws of the state of Louisiana provide the relevant law for any
dispute arising from this platform.

7

with

any

evidence

to

support

a

finding

that

BP

exercised

operational control or ordered him to handle the rigging which
ultimately caused his injury. A principal is considered to exercise
operational control "only if it gives an express or implied order
to the contractor to engage in an unsafe work practice leading to
injury." Ukudi v. McMoran Oil & Gas, LLC, 587 F. App'x 119, 122
(5th Cir. 2014).

In determining if a principal has exercised such

operational control, "the court considers both the contract between
the

parties

and

the

extent

to

which

the

principal

actually

exercises control." Id.
Here, the Master Agreement between BP and DXP clearly provides
that DXP will serve as an independent contractor of BP and will
control the performance of its work and accept responsibility for
its results, whereas BP will not "conduct, control, supervise, or
direct the manner or method" in which DXP performs this work."
(Rec.

Doc.

69-4,

p.

2-3).

"When

the

contract

assigns

the

independent contractor responsibility for its own activities, the
principal does not retain operational control." Fruge ex rel. Fruge
v. Parker Drilling Co., 337 F.3d 558, 564 (5th Cir. 2003). Based on
the

clear

language

of

the

contract,

it

is

evident

that

BP

contractually exercised no operational control over Plaintiff's
work.
Additionally, Plaintiff has presented no evidence to show that
BP

exercised

any

actual

control

8

over

Plaintiff.

"Operational

control exists only if the principal has direct supervision over
the step-by-step process of accomplishing the work such that the
contractor is not entirely free to work in his own way." Fruge, 337
F.3d at 564. Here, as noted by BP, according to the lift plan
drafted by the parties prior to the planned lifting of the pump,
Plaintiff was to play no role in the actual lift or the handling of
any rigging. (Rec. Doc. 69-1, p. 5). Instead, Plaintiff was simply
to provide guidance and instruction regarding the removal and
repair of the pump, and no orders, express or otherwise, were given
to Plaintiff to become actively engaged with the handling of the
pump or its rigging. (Rec. Doc. 69-9, p. 2). Plaintiff has provided
the Court with no evidence or factual support to suggest otherwise,
and as such, the Court finds that BP did not exercise operational
control, either contractually or actually, over Plaintiff.
Plaintiff has failed to submit sufficient evidence to defeat
summary judgment on the issue of whether BP may be found liable for
Plaintiff's

negligent

acts

that

may

have

contributed

to

his

injuries.
B. Liability for Lift Supervisors
While

Plaintiff

does

not

dispute

that

the

independent

contractor defense precludes a finding of liability against BP for
his potentially negligent conduct, he does allege that BP should be
found liable for the negligent conduct of two men hired to serve as
lifting specialists. Plaintiff notes that Mr. Freddie Greer and Mr.

9

Brent Broussard, employees of Bishop Lift, both served as site
lifting specialists aboard the MAD DOG platform at the time of
Plaintiff's accident. Plaintiff alleges that Mr. Greer prepared a
lift plan for the pump, which was signed and approved by BP, and
which negligently did not include steps on how to remove the
rigging of the pump. Additionally, Plaintiff alleges that Mr.
Broussard, the lift supervisor on duty at the time of Plaintiff's
accident, failed to ensure that only certified riggers, and not
Plaintiff, were handling the rigging, and also failed to ensure
that only the persons who signed off on the lift plan were
performing the lifting.
The

law

is

well-settled

within

this

Circuit

that

when

attempting to defeat a motion for summary judgment, the nonmoving
party "may not rest upon the mere allegations or denials of its
pleadings, and unsubstantiated or conclusory assertions that a fact
issue exists will not suffice." Morris v. Covan World Wide Moving,
Inc., 144 F.3d 377, 380 (5th Cir. 1998) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986)). Instead, when a plaintiff
opposing a motion for summary judgment has had a "full opportunity
to conduct discovery," he is required to present affirmative
evidence that a genuine issue of fact exists. Anderson, 477 U.S. at
256. Here, Plaintiff has failed to fulfill his burden regarding his
allegations of BP's liability for the acts of Mr. Greer and Mr.
Broussard. At the time Plaintiff filed his Opposition, he admitted

10

that he had not deposed Mr. Broussard, but was "diligently working
to schedule" such a deposition. As such, Plaintiff relies entirely
on

the

deposition

contention

that

specialists'

testimony

BP

alleged

should

of
be

Mr.

Greer

found

negligent

in

liable

conduct.

support
for

the

Plaintiff

of

his

lifting

filed

his

Opposition on February 18, 2015, one day before discovery in this
matter closed. As such, Plaintiff appears to have had a full
opportunity

to

conduct

the

deposition

of

Mr.

Broussard,

and

provides the Court with no reasoning for why this deposition has
not been conducted. Additionally, Plaintiff alleges that Bishop
Lift, the employer of Mr. Greer and Mr. Broussard, is not an
independent contractor of BP, but provides no evidence to support
this. In the alternative, Plaintiff alleges that even if Bishop
Lift is deemed to be an independent contractor of BP, BP exercised
operational control over the lifting specialists. However, again
Plaintiff
conclusory

provides

absolutely

allegation.

no

evidence

Additionally,

to

support

Plaintiff

fails

this
to

substantiate his allegations that both Mr. Greer and Mr. Broussard
acted

negligently

in

their

respective

development

and

implementation of the lifting plan.
Due to the lack of evidentiary support and conclusory nature
of Plaintiff's allegations, the Court finds that Plaintiff has
failed to satisfy his burden to defeat summary judgment on his
claims for BP's liability arising from the conduct of its lifting

11

specialists.
C. Independent Negligence
In addition to Plaintiff's argument that BP should be found
liable for the acts of its lifting specialists, Plaintiff also
asserts that BP should be found liable for its independent acts of
negligence which caused or contributed to Plaintiff's injuries.
While the general rule shields a principal for liability from the
negligent acts of its independent contractors, the principal will
remain liable for its own acts of negligence. Graham, 21 F.3d at
645; Cormier v. W & T Offshore, Inc., No. 10-1089, 2013 WL 1567406,
at *16 (W.D. La. Apr. 12, 2013). Under Louisiana law, in order to
succeed on a claim of negligence, a plaintiff must prove "the
existence of a legal duty coupled with a breach of that duty," as
well as causation and damage. Friou v. Phillips Petroleum, Co., 948
F.2d 972, 975 (5th Cir. 1991) (citing Seals v. Morris, 410 So.2d
715, 718 (La. 1981)).
Plaintiff asserts that BP owed a duty to provide Plaintiff and
all DXP employees with a safe place to work. BP disputes the
existence of this duty, contending that the Master Agreement
setting forth the contractual duties of BP and DPX imposed no
independent

duty

on

BP

"in

relation

to

adequate

personnel,

equipment and training and supervision of employees." (Rec. Doc.
69-1, p. 16). Under Louisiana law, "whether a duty is owed is a
question of law, but whether a defendant breached that duty is a
12

question of fact." Smith v. Chevron USA, Inc., No. 98-2059, 1999 WL
615174, at *3 (E.D. La. Aug. 12, 1999) (Berrigan, J.) (citing Mundy
v. Dept. of Health and Human Res., 620 So.2d 811, 813 (La. 1993)).
It is well-settled within this Circuit that, "as a general rule,
the owner or operator of a facility has a duty of exercising
reasonable care for the safety of persons on his premises and the
duty of not exposing such persons to unreasonable risks of injury
or harm." Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir.
1994)

(quoting

Mundy,

620

So.2d

at

813)

(internal

citations

omitted). Consistent with this duty, owners of offshore platforms
owe a duty to employees of their independent contractors to "take
reasonable steps to ensure a safe working environment." Id; Smith,
1999 WL 615174, at *2. In light of this, the mere fact that the
Master Agreement did not specifically reference such a duty does
not allow BP to escape its legally mandated obligation to provide
the employees of independent contractors, such as Plaintiff, with
a safe work environment.
Plaintiff does not contend that any part of the MAD DOG
platform was unsafe, however, he does claim that BP breached its
duties to provide a safe work environment and exercise reasonable
care to ensure his safety by both allowing Plaintiff to handle
rigging when he was not certified to do so, and also by allegedly
failing to implement proper safety procedures. First, considering
Plaintiff's allegation that BP allowed him to handle rigging

13

despite his lack of authority to do so, the Court finds this
argument to be without merit. Plaintiff has provided this Court,
both in his complaint and in his Opposition to the instant motion,
with minimal detail regarding the events of the incident which
allegedly caused Plaintiff's injuries. However, BP has provided the
Court with evidence specifically detailing these events, largely in
the form of depositions of Plaintiff and fellow workers aboard the
MAD DOG platform.
BP does not dispute that according to the lift plan, Plaintiff
was not certified to nor was he intended to be involved in the lift
of the pump or the handling of any rigging. (Rec. Doc. 69-1, p. 5).
Moreover,

as

mentioned

above,

the

lift

plan

provided

that

Plaintiff's only participation in the lifting of the pump be
limited to providing guidance, instruction, and expertise regarding
the removal and repair of the pump. (Rec. Doc. 69-1, p. 6). BP
contends that despite the lift plan strictly limiting Plaintiff's
involvement in the lift, Plaintiff, on his own initiative, entered
the area surrounding the pump, which was blocked off with red
"caution" tape, and began handling the rigging, which ultimately
resulted in his injury. Robert Kretzer, the Team Maintenance Leader
for BP who was present at the time of the accident, has testified
that Plaintiff was never instructed to enter the area or to handle
the pump or its rigging, and also that he never informed any BP
personnel that he intended to enter the area or assist with the

14

lift. (Rec. Doc. 69-9, p. 2). While Plaintiff contends that there
is a factual issue regarding whether anyone knew he intended to
assist in removing the rigging, he has failed to provide any
evidence

to

support

this

contention,

either

through

his

own

testimony or otherwise. As such, due to Plaintiff's lack of
evidentiary support, he has failed to show that BP breached its
duty by allegedly allowing him to participate in the handling of
the rigging.
Plaintiff

also

contends

that

an

internal

investigation

conducted by BP reveals that BP breached its duty by "fail[ing] in
many aspects which let [sic] to plaintiff's injury." (Rec. Doc. 77,
p. 11). However, in support of this contention, Plaintiff merely
lists vague, conclusory allegations, such as "BP personnel failed
in their job duties, which led to plaintiff's injuries." (Rec. Doc.
77, p. 12). These allegations are entirely devoid of any factual
basis or explanation, and as such are insufficient for a reasonable
jury to determine that BP breached its duty in such a manner.
Because Plaintiff is unable to set forth any substantial
evidence to show that a genuine issue of fact exists regarding BP's
liability, the Court finds that summary judgment in favor of BP on
Plaintiffs' claims is warranted.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that BP's Motion for Summary Judgment

15

(Rec. Doc. 69) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's claims against BP in
the above-captioned matter are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that BP's Motion in Limine to Exclude
the Testimony of G. Randolph Rice, Ph.D (Rec. Doc. 68) and Motion
for Leave to File Reply (Rec. Doc. 80) are hereby DENIED AS MOOT.
IT IS FURTHER ORDERED that the oral argument scheduled for
Wednesday, February 25, 2015 at 9:30 regarding the instant motion
and BP's Motion in Limine (Rec. Doc. 68) are hereby CANCELLED.
New Orleans, Louisiana this 24th day of February, 2015.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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