Desmore et al v. Baker Hughes Oilfield Operations, Inc. et al
Filing
100
ORDER AND REASONS denying 90 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown on 2/8/2016. (cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROY J. DESMORE, et al.
CIVIL ACTION
VERSUS
NO. 14-2198
BAKER HUGHES OILFIELD
OPERATIONS, INC., et al
SECTION “G”(5)
Flag Section “C”
ORDER AND REASONS
Presently pending before the Court is Defendant Ensco Offshore Company’s (“Ensco”)
“Motion for Summary Judgment.”1 Plaintiffs Roy J. Desmore (“Desmore”) and Lillian Desmore
(collectively “Plaintiffs”) oppose the motion. Having reviewed the motion, the memorandum in
support, the memorandum in opposition, the record, and the applicable law, the Court will deny
the pending motion.
I. Background
A.
Factual Background
In their complaint, Plaintiffs allege that Desmore was a Jones Act Seaman employed by
Defendant Baker Hughes Oilfield Operations, Inc. (“BHOOI”) “as a crew member assigned to a
vessel in navigable waters as a wire line operator, and further, performed duties in this capacity
that directly related and contributed to the accomplishment of the function, mission, and purpose
[of the vessel,] the Ensco 87.”2 BHOOI was providing “Pipe Conveyed Logging wireline services”
aboard the Ensco 87, a “jackup drilling rig.”3 Plaintiffs allege that Desmore was injured on the
Ensco 87 “when a side entry sub clamp failed,” causing a cable to slip and trapping his left hand
1
Rec. Doc. 90.
Rec. Doc. 1 at 3.
3
See Rec. Doc. 90-1 at 1–2.
2
1
between the wire line and a sheave.4 This accident caused two of Desmore’s fingers to be
amputated and left him with permanent hand damages.5
B.
Procedural Background
Plaintiffs filed a complaint on September 23, 2014, against BHOOI, Desmore’s employer,
and National Oilwell Varco, L.P. (“Varco”), the manufacturer of the side entry sub clamp that
Plaintiffs allege failed and injured Desmore.6 On September 29, 2014, Varco filed an answer.7 On
October 16, 2014, BHOOI filed an answer.8 “On January 21, 2015, with leave of Court, Plaintiffs
filed an amended complaint, adding claims against Ensco, the owner of the Ensco 87.9 On March
10, 2015, Ensco filed an answer.10 On May 5, 2015, with leave of Court, ACE American Insurance
Company filed a “Complaint of Intervention.”11 That same day Plaintiffs filed a second amended
complaint.12
On June 26, 2015, BHOOI filed a motion for summary judgment.13 On August 13, 2015,
Plaintiffs filed a cross-motion for summary judgment.14 At issue in the two motions was whether
or not Desmore qualifies as a seaman under the Jones Act. On January 20, 2016, the Court ruled
on the two motions, conducting the two-prong Chandris analysis used by courts to determine
whether or not a plaintiff has seaman status.15 In the ruling, the Court concluded that, with no
genuine dispute of material fact, Desmore met the first prong of Chandris, because Desmore
4
Id. at 4.
Id.
6
Rec. Doc. 1.
7
Rec. Doc. 12.
8
Rec. Doc. 16.
9
Rec. Doc. 34.
10
Rec. Doc. 38.
11
Rec. Doc. 51.
12
Rec. Doc. 53.
13
Rec. Doc. 58.
14
Rec. Doc. 75.
15
See Rec. Doc. 99 at 14–22 (referencing two-prong analysis established in Chandris v. Latsis, 515 U.S. 347
(1995)).
5
2
contributed to the function of the Ensco 87.16 The Court then concluded that it was unable to rule
on the second prong of Chandris, because genuine issues of material fact existed as to: 1) whether
Desmore worked on an identifiable group of vessels subject to common ownership or control; 2)
whether the duration of Desmore’s service on those vessels was significant in relation to the total
amount of services performed by Desmore; and 3) whether Desmore had a connection to the Ensco
87 that was substantial in nature.17 As such, the Court denied both BHOOI’s and Plaintiff’s
motions for summary judgment, because factual disputes exist that prevent the Court from
determining whether or not Desmore is a Jones Act seaman.18
After BHOOI’s and Plaintiff’s cross-motions for summary judgment had gone under
submission, but before the Court ruled on the motions, Ensco filed a motion for summary judgment
on November 11, 2016.19 On December 2, 2015, Plaintiffs filed their opposition to Ensco’s
motion.20
II. Parties’ Arguments
A.
Ensco’s Arguments in Support of its “Motion for Summary Judgment”21
Ensco puts forward two central arguments in support of summary judgment.22 The first
argument depends upon the Jones Act not applying to this case, while the second argument
assumes for the sake of argument that the Jones Act does apply.23Starting from the premise that
Desmore is not a Jones Act seaman, Ensco argues that Plaintiffs’ only possible claim against Ensco
would be for vessel negligence under the Longshore and Harborworkers Compensation Act”
16
See id. at 16.
See id.
18
See id. at 22–23.
19
Rec. Doc. 90.
20
Rec. Doc. 95.
21
Rec. Doc. 90.
22
See Rec. Doc. 90-2.
23
See id.
17
3
(“LHWCA”).24 See 33 U.S.C. § 905(b). Ensco argues that there are no facts in the record indicating
that Ensco or its employees in any way breached a duty of care owed to Desmore, meaning
Plaintiffs cannot support a negligence claim.25 Ensco contends that, during a deposition, Desmore
himself conceded that Ensco had nothing to do with Desmore’s injury other than operating the
drilling rig on which Desmore was injured.26 Ensco contends that Desmore’s injury was the result
of a hidden defect in equipment that was not under the control of Ensco and that there was no
“obvious hazard” on the Ensco 87 giving rise to any duty owed by Ensco.27
Even if Desmore is a Jones Act seaman, Ensco contends that the record does not support a
finding that the Ensco 87 was unseaworthy, because the wire that injured Desmore was not “the
type of gear regularly or traditionally found on ships as a regular piece of ship’s gear.”28 Ensco
argues it therefore cannot be liable under the Jones Act.29
B.
Plaintiff’s Arguments in Opposition to Ensco’s “Motion for Summary Judgment”30
Plaintiffs contend that Desmore is a Jones Act seaman and that, under the Jones Act and
applicable Fifth Circuit law, the Ensco 87 was unseaworthy.31 This is because the duty to ensure
seaworthiness extends not only to equipment belonging to the vessel owner, but also to “all kinds
of equipment” brought aboard by others.32 Plaintiffs contend that the record supports that Ensco
failed to properly train its employees to handle Desmore’s emergency and that the Ensco 87 did
not have the proper equipment readily available to free Desmore from his trapped position.33
24
See id. at 2.
See id. at 2, 5–7.
26
See id.
27
See id. at 8–11.
28
Id. at 7 (internal quotation omitted).
29
See id. at 7–8.
30
Rec. Doc. 95.
31
See Rec. Doc. 95 at 2–4.
32
See id. at 4.
33
See Rec. Doc. 95 at 2.
25
4
Plaintiffs argues that the extent to which these failures played a substantial role in causing
Desmore’s permanent injuries is a factual issue not appropriately decided on summary judgment.34
Plaintiffs also contend that Ensco’s motion is premature given that Ensco makes reference to the
statements of a likely witness whom Plaintiffs have not yet had the opportunity to depose.35
Plaintiffs do not apparently address the merits of Ensco’s argument that Plaintiffs cannot state a
claim under the LHWCA in the case that the Jones Act does not apply in this case.
III. Legal Standard
Summary judgment is appropriate when the pleadings, discovery, and any affidavits
demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”36 When assessing whether a dispute as to any material fact exists, a
court considers “all of the evidence in the record but refrains from making credibility
determinations or weighing the evidence.”37 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.”38 If the record could not lead a rational trier of fact to find in favor of the non-moving
party, then no genuine issue of fact exists and the moving party is entitled to judgment as a matter
of law.39 The nonmoving party may not rest upon the pleadings, and instead must identify specific
facts in the record and articulate the precise manner in which that evidence establishes a genuine
issue for trial.40
34
See Rec. Doc. 95 at 4.
See Rec. Doc. 95 at 5.
36
FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
37
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
38
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d 1075.
39
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
40
See, e.g., Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
35
5
The party moving for summary judgment always bears the initial responsibility of
informing the Court of the grounds for its motion and identifying what in the record demonstrates
the absence of a genuine issue of material fact.41 As such, the moving party should “identify
specific evidence in the record, and articulate” precisely how the evidence supports the motion.42
The party opposing summary judgment may rebut by showing that there is a genuine issue for trial
by presenting evidence of specific facts.43 A nonmovant cannot demonstrate a genuine issue of
material fact exists merely by creating “some metaphysical doubt as to the material facts,” by
“unsubstantiated assertions,” “by conclusory allegations,” or “by only a scintilla of evidence.”44
Instead, the nonmovant must present evidence that would be sufficient for a reasonable trier of fact
to find for the nonmoving party. Unsworn documents and hearsay evidence that would not be
admissible as evidence at trial cannot be used as competent opposing evidence.45
IV. Law and Analysis
A. Applicable Law
Ensco argues that summary judgment is warranted whether or not Desmore is a Jones Act
seaman. Previously, this Court has determined that genuine disputes of material fact preclude the
Court from determining whether or not Desmore is a Jones Act seaman. This means that, in order
for Ensco to prevail on its motion for summary judgment and be dismissed from this case, Ensco
must establish both that it cannot be held liable in the case the Jones Act does apply and that it
cannot be held liable in the case that the Jones Act does not apply. The Court addresses Ensco’s
arguments under both scenarios in turn.
41
Celotex, 477 U.S. at 323.
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994).
43
Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248–49 (1986).
44
Little, 37 F.3d at 1075.
45
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987; see also FED. R. CIV. P. 56(c)(2).
42
6
B.
Analysis
1. Summary Judgment for Ensco in the Case that the Jones Act Applies
In the case that the Jones Act does apply, Ensco as the owner of the Ensco 87 “has a duty
to provide a vessel that is reasonably fit for its intended use.”46 “This duty to provide a seaworthy
vessel requires that the vessel, its gear, appurtenances, and operation must be reasonably safe.”47
In the case a seaman is injured as the result of a vessel’s unseaworthy appurtenant equipment and
appliances, it is well settled that the vessel owner may be liable to indemnity the injured seaman.48
Here, Ensco contends that the allegedly defective clamp, wireline, and other equipment
that injured Desmore do not count as appurtenances of the Ensco 87, because BHOOI, not Ensco,
brought the equipment aboard the Ensco 87, operated the equipment, and then removed the
equipment after it completed its job aboard the Ensco 87.49 The Fifth Circuit has supplied, and
courts within this District have consistently employed, a factor-based analysis for determining
what constitutes a vessel’s appurtenances.50 Following guidance supplied by Fifth Circuit in
Drachenberg, courts assess two factors in making the determination of whether or not the given
equipment was sufficiently attached to the vessel to constitute an appurtenance. First, courts ask
whether or not the equipment is “utilized in a manner fundamentally related to traditional maritime
activities.”51 For this factor, courts look to whether the equipment “was a critical component
46
See Drachenberg v. Canal Barge Co., Inc., 571 F.2d 912, 918 (5th Cir. 1978).
Id.
48
See id.
49
See Rec. Doc. 90-1 at 7–8.
50
See Drachenberg, 571 F.2d at 920; see also Clay v. ENSCO Offshore Company, Civ. A. No. 14-2508, 2015 WL
7306436 (E.D.La. Nov. 19, 2015) (Fallon, J.); see also Young v. Intermoor, Inc., Civ. A. No. 08-1972, 2010 WL
1731165 (E.D.La. Apr. 28, 2010) (Africk, J.); see also Brown v. Cenac Towing Co., Inc., Civ. A. No. 09-105, 2010
WL 2559079 (E.D.La. Jun. 24, 2010) (Berrigan, J.).
51
Id.
47
7
integrally related to the vessel’s function.”52 Second, courts look to whether or not the injury
occurred on board the vessel, as opposed to dockside.53
Not pertinent to the Drachenberg analysis is whether the equipment in question was
permanently attached to the vessel or under the control of some party other than the vessel owner.54
Indeed, equipment can be appurtenant to a vessel even where it was “brought aboard by a
contractor and the vessel did not sanction its use or know of its existence.55 Rather than focusing
the appurtenance analysis on ownership or control, courts instead focus on whether the equipment
in question was “used to perpetuate the mission and purpose of the vessel.”56
In Young v. Intermoor, plaintiff was an employee of a contractor brought aboard a vessel
to handle anchoring in connection with moving an off-shore oil rig.57 With no employees of the
defendant vessel owner present, the plaintiff was injured while attempting to untangle anchor wire
being used by the contractor.58 Looking to the Drachenberg factors, the court in Young found the
wire to be an appurtenance of the vessel, noting the anchor wire was essential to the vessel’s
function of moving an off-shore oil rig and that the injury occurred onboard the vessel.59
In this case, the equipment involved in Desmore’s injury was appurtenant to the Ensco 87.
Even though the equipment was controlled by BHOOI and was only on board temporarily, both
Drachenberg factors support the conclusion that the side entry sub clamp and wireline were
appurtenances. First, the wireline services being provided by BHOOI perpetuated the mission and
52
Id.
Id.
54
See Drachenberg, 571 F.2d at 920.
55
See Clay, Civ. A. No. 14-2508, 2015 WL 7306436 at *3 (citing Deffes v. Fed. Barge Lines, Inc., 361 F.2d 422,
426 (5th Cir. 1966).
56
See id. (citing Matter of Antill Pipeline Const. Co., Inc., Civ. A. No. 97-0578, 1998 WL 321512 at *3 (E.D. La.
17, 1998) (Clement, J.)).
57
See Civ. A. No. 08-1972, 2010 WL 1731165 at *1.
58
See id.
59
See id. at *3.
53
8
purpose of the Ensco 87’s drilling operations. The Court has previously reached the conclusion
that Desmore’s work contributed to the function of the Ensco 87, albeit in the context of
determining whether or not the Jones Act applies.60 Furthermore and looking to past decisions
such as Young, it is clear that the equipment in question was being used to further the Ensco 87’s
drilling activities. As for the second Drachenberg factor, there is no dispute that Desmore’s injury
occurred aboard the Ensco 87. As such, the Court cannot grant summary judgment for Ensco based
on the argument that the equipment that injured Desmore was not part of the Ensco’s appurtenant
appliances and equipment.
2. Summary Judgment for Ensco in the Case that the Jones Act Does Not Apply
In the case the Jones Act does not apply to this case, Ensco argues that Plaintiffs cannot
support a claim against Ensco for vessel negligence under the LHWCA. Because the LHWCA
would provide Plaintiffs their exclusive remedy if the Jones Act does not apply, Ensco argues that
summary judgment for Ensco is warranted. Plaintiffs’ opposition to Ensco’s motion for summary
judgment focused on the merits of Ensco’s arguments directed to the scenario that Desmore is a
Jones Act seaman and did not address the merits of Ensco’s arguments directed to the scenario that
the Jones Act does not apply.
Through the provisions of 33 U.S.C. § 905(b), Congress “replaced the unseasworthiness
cause of action against a vessel with liability based on negligence” for LHWCA claims against
shipowners.61 Under the LHWCA, “a vessel owner owes a duty to exercise reasonable care to
make the vessel safe if he actively participates in the operations or maintains control over the area,
or if such a duty is imposed upon him by contract or law.”62 That duty does not, however, require
60
See Rec. Doc. 99 at 14–16.
See Levene v. Pintail Enterprises, Inc., 943 F.2d 528, 533 (5th Cir. 1991).
62
See McLaurin v. Noble Drilling (US) Inc., 529 F.3d 285, 291 (5th Cir. 2008).
61
9
a vessel owner to “protect against any and all hazards a longshoreman might encounter in the
course of his work.” Id.
Instead, the Supreme Court has identified three specific instances where a vessel
negligence claim under the LHWCA may stand.63 First, where a vessel owner, on turning over the
ship, failed to warn of any hidden defects on the vessel of which the vessel owner should have
known.64 Second, where an injury is caused by hazards under the control of the ship.65 And third,
where a vessel owner does not intervene after actually becoming aware of an unreasonable risk of
harm created by the vessel or its equipment and becoming aware that the employer of the LHWCA
plaintiff was not exercising reasonable care to protect its workers.66 The Fifth Circuit has ruled
that a vessel negligence claim can stand only where a vessel owner breaches one of these three
duties.67
Despite plaintiff’s failure to address Ensco’s arguments regarding LHWCA liability and
despite the narrow range of vessel-owner conduct that can give rise to a vessel negligence claim
under the LHWCA, the Court is hesitant to conclude that Ensco has sufficiently established that it
cannot be liable to Plaintiffs under the LHWCA should it be determined that Desmore is not a
Jones Act seaman. Ensco’s memorandum in support of summary judgment does not clearly enough
demonstrate how the facts of this case fit into the applicable LHWCA standards, nor does it discuss
whether there are factually analogous cases supporting (or conflicting with) the conclusion that
Ensco cannot be liable under the LHWCA.68 Without the benefit of adequate briefing from either
63
See Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981).
See Levene, 943 F.2d at 533; see also Hudson v. Schlumberger Tech. Corp., 452 Fed. Appx. 528, 534 (5th Cir.
2011).
65
See id.
66
See id.
67
See id.
68
See Rec. Doc. 90-2 at 11. After almost three pages of recited LHWCA legal standards, Ensco’s memorandum
contains just a single, five-sentence, paragraph applying the facts of this case to those standards.
64
10
party, and because the Court has other grounds on which to deny Ensco’s motion for summary
judgment, the Court leaves resolution of the LHWCA vessel negligence issue to a later date, if
necessary.
V. Conclusion
To have prevailed on its motion for summary judgment, and in light of the Court’s previous
ruling that genuine issues of material fact preclude the Court from deciding whether or not the
Jones Act applies, Ensco had to establish that it could not be liable to Plaintiffs both in the scenario
that the Jones Act does apply to this case and in the scenario that the Jones Act does not apply.
Ensco’s argument for summary judgment in the case the Jones Act does apply depended on the
Court finding that the equipment that injured Desmore was not appurtenant to the Ensco 87.
Because the Court has found that the equipment that injured Desmore was appurtenant to the Ensco
87 and because the Court finds that the parties have inadequately briefed the issue of LHWCA
vessel negligence liability in the case Desmore is not a Jones Act seaman, the Court denies Ensco’s
motion.
Accordingly,
IT IS HEREBY ORDERED that Defendant Ensco Offshore Company’s “Motion for
Summary Judgment”69 is DENIED.
NEW ORLEANS, LOUISIANA, this ____ day of February, 2016.
8th
__________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
69
Rec. Doc. 90.
11
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