Johnson v. Abe's Boat Rentals, Inc. et al

Filing 97

ORDER AND REASONS denying 41 Motion for Summary Judgment; denying 42 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHAWN D. JOHNSON

CIVIL ACTION

VERSUS

NO. 14-2213

ABE’S BOAT RENTALS INC. AND
ISLAND OPERATING COMPANY INC.

SECTION “B” (5)
Flag Section “C”

ORDER AND REASONS1
Before

the

Court

is

(1)

Apache

Corporation’s

(“Apache”)

Motion for Summary Judgment, dismissing all claims by Plaintiff
Shawn Johnson (“Johnson”) and Third Party Plaintiff Abe’s Boat
Rentals,

Inc.

(“Abe’s”),

and

(2)

Island

Operating

Company’s

(“Island”) Motion for Summary Judgment, dismissing all claims by
Johnson. See Rec. Docs. 41 & 42. After reviewing the arguments of
counsel, the record, and applicable law, the Court DENIES Apache’s
Motion for Summary Judgment and DENIES Island’s Motion for Summary
Judgment.
I.

BACKGROUND
A. Facts
The following facts appear to be undisputed by the parties

involved. Johnson was a payroll employee of Wood Group PSN, Inc.
(“Wood Group”) and in July 2012, he was assigned to work as a
mechanic for Apache on their production platform, SP 24 W-1 (“South
Pass 24”), off the coast of Louisiana. See Rec. Doc. 1 at 2; Rec.

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Tracy Law, a third year student at Tulane University Law School, assisted with
the preparation of this order and reasons.

Doc. 41-2 at 2. At the time of Johnson’s employment, Apache and
Wood

Group’s

relationship

was

governed

by

a

Master

Service

Contract. See Rec. Doc. 41-2 at 2.
On March 12, 2014, Johnson was working with a crew that
included Ronnie Morel (“Morel”), a payroll employee of Island who
was also assigned to work on SP 24 W-1 for Apache. See Rec. Doc.
42-1 at 1–2. The crew was scheduled to make a crew change and leave
the platform. See Rec. Doc. 1 at 2; Rec. Doc. 42-1 at 2. That
morning, Johnson boarded the M/V MISS SYDNEY, a vessel owned by
Apache, to return to shore at Venice, Louisiana. See Rec. Doc. 1
at 2; Rec. Doc. 42-1 at 2. Morel took up the operation of the MISS
SYDNEY. See Rec. Doc. 1 at 2; Rec. Doc. 42-1 at 2. On the way, the
MISS SYDNEY collided with the M/V JASON ABE, owned by Abe’s. See
Rec. Doc. 1 at 2; Rec. Doc. 42-1 at 2; Rec. Doc. 67 at 2.
Johnson claims that the collision caused severe and painful
injuries that have limited his everyday activities and ability to
work. See Rec. Doc. 1 at 2.
B. Procedural Posture
Johnson filed a claim under the Longshoremen’s and Harbor
Worker’s Compensation Act (“LHWCA”) on July 3, 2014, and filed a
claim under the Louisiana Workers’ Compensation Act (“LWCA”) on
October 2, 2014. See Rec. Doc. 75-1 at 2 n.3. On September 24,
2014, Johnson filed suit against Abe’s and Island under general
maritime law, seeking damages for his sustained injuries. See Rec.

2

Doc.

1.

On

Compensation

December

19,

(“OWC”),

2014,

in

its

the

state

Office

adjudication

of

of

Workers’
Johnson’s

compensation claims, dismissed his state workers’ compensation
claim. See Rec. Doc. 75-1 at 2. Johnson appealed. See id.
On March 24, 2015, defendant Abe’s filed a cross-claim against
defendant Island, alleging negligence on the part of Morel, the
operator of the MISS SYDNEY at the time of the collision. See Rec.
Doc. 28. On April 17, 2015, Abe’s brought a Third Party action
against Apache, and additionally tendered Apache as a direct
defendant of Johnson. See Rec. Doc. 31. Abe’s contends that Apache
is negligent for its own actions, namely regarding untrained
personnel and a lack of procedures regarding the safe operation of
its vessels. See Rec. Doc. 31; Rec. Doc. 50 at 3.
On August 21, 2015, Apache filed a Motion for Summary Judgment
to dismiss all claims by Johnson and Abe’s. See Rec. Doc. 41. On
August 25, 2015, Island also filed a Motion for Summary Judgment
to dismiss all claims by Johnson. See Rec. Doc. 42. Both Apache
and Island seek summary judgment and dismissal from this case on
the grounds that, because Johnson is covered by the LHWCA, Johnson
is legally barred from obtaining recovery against them. See Rec.
Docs. 41 and 42. Apache also seeks summary judgment against Abe’s
on the grounds that Abe’s, too, is legally barred by the LHWCA
from recovery against Apache for Johnson’s alleged misconduct. See
Rec. Doc. 41-2 at 7.

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On September 23, 2015, the Louisiana Fourth Circuit Court of
Appeal vacated the OWC’s judgment and instructed the OWC not to
rehear Johnson’s case until the Court decides whether Johnson is
covered by the LHWCA. See id.
II.

STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “A
factual dispute is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. A
fact is ‘material’ if it might affect the outcome of the suit under
the governing substantive law.” Beck v. Somerset Techs., Inc., 882
F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986)).
“If the moving party meets the initial burden of showing that
there is no genuine issue of material fact, the burden shifts to
the non-moving party to produce evidence or designate specific
facts showing the existence of a genuine issue for trial.” Engstrom
v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.
1995) (citing Celotex, 477 U.S. at 322–24). When necessary, a court
must draw all reasonable inferences in favor of the nonmoving
party. Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578
(5th Cir. 1986). However, if the evidence does not exist, a court

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cannot assume that the nonmoving party will be able to prove the
necessary facts to create a genuine issue of material fact. Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
III. LAW AND ANALYSIS
A. Apache’s Motion for Summary Judgment
Apache argues that because Johnson is covered by the LHWCA
and is a borrowed employee under the LHWCA, Johnson and Abe’s are
precluded from recovering against Apache. See Rec. Doc. 41-2. In
its opposition, Abe’s makes four arguments: (1) Johnson is not
covered by the LHWCA and therefore, may still pursue tort claims
against Apache under general maritime law, (2) even if Johnson is
covered by the LHWCA, Johnson may still pursue claims against
Apache under 33 U.S.C. § 905(b), (3) Johnson is not a borrowed
employee and Apache is not precluded from liability, and (4) Apache
is responsible for its own negligence regardless of Johnson’s
borrowed employee status. See Rec. Doc. 50 at 2.
Apache asserts, though Johnson denies, that Johnson is not
contesting the application of the LHWCA to this case. See Rec.
Docs. 69 at 1, 67 at 1–2, & 75. Johnson notes that he filed for
both

federal

and

state

compensation

benefits

to

avoid

being

precluded from benefits because he was uncertain which statute
applied. See Rec. Doc. 75. Abe’s additionally disputes whether
Johnson is covered by the LHWCA due to the nature of his work and
the location of his injury. See Rec. Doc. 50 at 3–6.

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Because the Court finds that genuine issues of material fact
must be resolved before the Court can determine whether Johnson is
covered by the LHWCA and because the Court agrees that Abe’s has
stated a claim against Apache for its own negligence, the Court
concludes that summary judgment for Apache is inappropriate. It is
therefore not possible and/or unnecessary to reach the question of
whether Johnson may pursue claims under 33 U.S.C. § 905(b) or
whether Johnson was a borrowed employee of Apache, as both of these
issues may not be reached until the Court is first satisfied that
the LHWCA is applicable.
i.

LHWCA Coverage

The LHWCA is a federal workers’ compensation scheme designed
to provide exclusive remedies for longshoremen and harbor workers
that are injured in the course of employment. 33 U.S.C. § 902(2)–
(3). The compensation is designed to be paid regardless of fault.
33 U.S.C. § 904(b). In addition, employers are liable exclusively
for compensation under Section 904 of the LHWCA and all other
liability

for

injury

is

precluded.

33

U.S.C.

§ 905(a).

This

preclusion from liability extends to borrowing employers. See
Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1243–44, 1244 n.10.
(5th Cir. 1988). In Louisiana, should compensation under the LHWCA
be paid, the claimant is then prohibited from receiving state
workers’ compensation under the LWCA. LA. REV. STAT. ANN. § 23:1035.2
(1990). In this case, if the LHWCA does apply, Apache may be

6

precluded from liability under the borrowed employee doctrine.
However, if the LHWCA does not, Apache has no statutory protections
from liability for Johnson’s injuries.
There is a two-part test to determine whether the LHWCA is
applicable: a “situs” test and a “status” test. The “situs” test
requires that the employee be injured on navigable waters of the
United States. See Bienvenu v. Texaco, Inc., 164 F.3d 901, 904
(1999). The situs test focuses on where the employee was injured,
not where the employee works. See 33 U.S.C. § 903 (“[C]ompensation
shall be payable under this chapter in respect of disability or
death of an employee, but only if the disability or death results
from an injury occurring upon the navigable waters of the United
States” (emphasis added)). The “status” test requires that the
claimant be a person engaged in maritime employment at the time of
their injury. See id. at 904. If an employee’s presence on a vessel
at the time of injury is transient or fortuitous, the employee
cannot satisfy the status test and is not covered by the LHWCA.
See id. at 908. The employee must perform a “not insubstantial”
amount of work on navigable waters for their presence to be
considered not transient or fortuitous. See id.
Abe’s contends that Johnson is not subject to the LHWCA
because neither part of the test is fulfilled. See Rec. Doc. 50 at
4–6. First, Abe’s cites to Thibodeux v. Grasso Prod. Mgmt., 370
F.3d 486 (5th Cir. 2005) to argue that the SP 24 W-1 was a fixed

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platform that was not a situs covered by the LHWCA. Regardless of
whether SP 24 W-1 is a fixed platform, however, the situs test
focuses on where the employee was injured, not where the employee
works. See 33 U.S.C. § 903 (“[C]ompensation shall be payable under
this chapter in respect of disability or death of an employee, but
only if the disability or death results from an injury occurring
upon the navigable waters of the United States.”) (emphasis added).
Johnson’s injury apparently occurred on the MISS SYDNEY while on
navigable waters of the United States.
Abe’s further argues, however, that Johnson cannot recover
under the LHWCA because his presence on the MISS SYDNEY was only
transient and fortuitous under the “status” test. See Rec. Doc. 50
at 6; see also Bienvenu, 164 F.3d at 908. In Bienvenu, the Fifth
Circuit held that there is a “substantial difference between a
worker ‘performing a set of tasks requiring him to be both on and
off navigable waters, and a worker whose job is entirely land based
but who takes a boat to work.’” 164 F.3d at 908 (quoting Herb’s
Welding, Inc. v. Gray, 470 U.S. 414, 427 n.3 (1985)). The Fifth
Circuit in Bienvenu declined to create a bright-line rule, favoring
a case-by-case determination instead. Id. at 907. However, the
court did provide some insightful guidance. To satisfy the status
test, “[t]he threshold amount [of work] must be greater than a
modicum

of

activity

in

order

to

preclude

coverage

to

those

employees who are merely commuting from shore to work by boat.”

8

Id. at 908. Tying off the vessel or loading and unloading tools
and gear does not count towards meaningful work on the vessel. See
id. The Bienvenu court also indicated that the worker’s relation
to and work on the specific vessel where the injury occurred are
both significant facts. See id. at 908.
In Bienvenu, the court found the status test to be satisfied
in large part because the plaintiff had, for the prior eleven
years, spent approximately an hour each work day working on
platform equipment while aboard the vessel upon which he was
injured. Id.; see also Anaya v. Traylor Bros., Inc., 478 F.3d 251,
254 (5th Cir. 2007) (finding that plaintiff performed most of his
construction duties aboard the barge he was injured on, satisfying
the status test); Early v. Wise Well Intervention Servs., Inc.,
No. 6:09-CV-00288, 2012 WL 826992 at *3 (W.D. La. Mar. 6, 2012)
(finding that 60–75% of work done offshore and 100% of the work
for a particular project was done on the M/V SUPERIOR INTEGRITY,
the site of the injury, satisfied the status test).
Abe’s has sufficiently establish that there are material
issues of fact related to whether Johnson’s presence on the MISS
SYDNEY was transient or fortuitous. While Johnson appears to have
stated that he maintained the MISS SYDNEY and spent approximately
25% of his time operating a boat for work purposes, his statement
was in reference to “boats” generally, not work done specifically
aboard the MISS SYDNEY. Compare Rec. Doc. 67-2 at 3, with Rec.

9

Doc. 67-3. As to the work Johnson performed specifically on the
MISS SYDNEY, the record does not clearly support Johnson being
aboard that vessel for the purpose of anything other than traveling
to and from the work site.
Additionally, Johnson’s statement about his work done on
boats generally is somewhat vague. His statement at least in part
indicates he mostly moved gear and personnel for work on the
platform, which the Bienvenu court indicated cannot count towards
satisfying the status test. See Bienvenu, 164 F.3d at 908; see
also Rec. Doc. 67-2 at 3 (“A lot of times they have me run to
Venice to pick up personnel, supplies”). Key facts related to
whether or not Johnson is covered by the LHWCA remain in dispute.
This means the Court may not grant Apache’s motion for summary
judgment on the grounds that Johnson is precluded from bringing
suit under the LHWCA.
ii.
Apache

Apache’s Negligence
also

argues

that

because

Johnson

is

a

borrowed

employee, it cannot be vicariously liable to Abe’s for torts
related to Johnson’s on-the-job injuries. See Rec. Doc. 41-2 at 6–
7. In addition to this argument depending on the LHWCA coverage
issue already discussed, the argument also depends on all tort
claims specifically relating to the actions of Johnson. Abe’s claim
against Apache is not based on the theory of respondeat superior.
Rather, Abe’s has alleged that Apache’s negligence stems from

10

independent

acts

of

Apache

itself:

allowing

unlicensed

and

untrained personnel to operate vessels; not having procedures in
place to ascertain the qualification of personnel allowed to
operate its vessels; allowing its vessels to be operated in adverse
weather conditions; and not having procedures in place concerning
the safe operation of its vessels. See Rec. Doc. 31 at 2. Apache
has not addressed, nor does case law suggest, how Abe’s could be
barred from raising such tort claims directly against Apache in a
case like this. See Adams v. Chevron USA, Inc., 383 Fed. Appx.
447, 454 (5th Cir. 2010). As such, summary judgment for Apache and
against Abe’s is not appropriate.
B. Island’s Motion for Summary Judgment
Island’s grounds for summary judgment also depends on the
LHWCA being applicable in this case. See Rec. Doc. 42-1. Were it
that Morel was a borrowed employee or that Johnson and Morel were
co-borrowed employees under the LHWCA, Johnson would be unable to
recover from Island for Morel’s negligence. See id.; 33 U.S.C.
§ 933(i) (“[R]ight to compensation or benefits under this chapter
shall

be

the

exclusive

remedy

to

an

employee

when

he

is

injured . . . by the negligence or wrong of any other person or
persons in the same employ.”). Because the Court cannot resolve
the factual disputes related to the issue of whether the LHWCA
applies to this case, the Court also is unable to grant summary
judgment for Island on the grounds of Johnson being a borrowed

11

employee or Johnson and Morel being co-borrowed employees under
the statute.
Accordingly, IT IS ORDERED that defendant Apache’s Motion
for Summary Judgment is DENIED. Rec. Doc. 41; and
IT IS FURTHER ORDERED that defendant Island’s Motion for
Summary Judgment is DENIED. Rec. Doc. 42.
New Orleans, Louisiana, this 12th day of January, 2016.

____________________________
UNITED STATES DISTRICT JUDGE

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