Julien v. EPL Oil & Gas, Inc.
ORDER AND REASONS granting 64 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 9/14/16. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EPL OIL & GAS, INC. AND
WOOD GROUP PSN, INC.
ORDER AND REASONS
Before the Court is defendant Wood Group PSN, Inc’s motion
employee, Alan Cook. For the following reasons, the motion is
Jacque Julien was employed by United Fire & Safety, LLC when
he worked aboard the South Pass Block 57 platform (SP-57B). EPL
Oil & Gas, Inc. owned this SP-57B platform at the time of Julien’s
On April 7, 2014 Julien worked as a fire watch for hot work.
He observed sparks and a piece of hot grating fall through the
deck on which he was standing to the deck below. For safety
purposes, Julien went to the lower deck in hopes of dousing the
equipment. Fire hose Reel #10 was located on this deck and Julien
intended to use Reel #10 to douse the hot pieces of metal that had
fallen onto that deck. Julien turned on the water supply, grabbed
the nozzle, and began walking while pulling the hose. However,
after pulling the reel a few feet, the hose stopped properly
unwinding; Julien turned around to assess the problem. As Julien
turned around, the hose allegedly shot toward him and struck his
left arm and knocked him to the deck.
Julien originally sued EPL to recover for the injuries he
sustained. 1 Wood Group PSN, Inc. was added as a third party
defendant because of its employee’s alleged involvement. Wood
Group’s employee, Alan Cook, inspected Reel #10 on April 1, 2014
and found the reel to be in working order. Any potential liability
that Wood Group could owe to Julien is based on Cook’s alleged
negligence in failing to determine Reel #10 was not in working
Wood Group now moves for summary judgment on the borrowed
employee status of Alan Cook. Wood Group contends that Cook was
EPL’s borrowed employee because Cook was EPL’s contract worker who
followed all work-related orders from EPL employees.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
1 EPL has since filed a voluntary petition for relief under Chapter 11 of the
Bankruptcy Code in the United State Bankruptcy Court, Southern District of
Texas. All proceedings in this lawsuit against EPL are stayed pending proper
motion of a party to reopen.
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine dispute
of fact exists only "if the evidence is such that a reasonable
jury could return a verdict for the non-moving party."
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
colorable, or is not significantly probative," summary judgment is
Id. at 249-50 (citations omitted).
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claim. Id. 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.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
Finally, in evaluating the
summary judgment motion, the Court must read the facts in the light
most favorable to the non-moving party.
Anderson, 477 U.S. at
The borrowed employee doctrine provides that while a person
is employed by one company, he “may be transferred, with his own
consent or acquiescence, to the service of a third person, so that
consequences of the new relation[ship].” Standard Oil Co. v.
Anderson, 212 U.S. 215, 220 (1909). When an employee is found to
be a “borrowed employee,” the borrowing employer is liable for the
borrowed employee’s acts. See Melancon v. Amoco Prod. Co., 834
F.2d 1238, 1234 (5th Cir. 1988). The Fifth Circuit considers nine
factors to determine a person’s borrowed employee status:
(1) Who has control over the employee and the work he is
performing? (2) Whose work is being performed? (3) Was
there an agreement, understanding, or meeting of the
minds between the original and the borrowing employer?
(4) Did the employee acquiesce in the new work situation?
(5) Did the original employer terminate his relationship
with the employee? (6) Who furnished tools and place for
considerable length of time? (8) Who had the right to
discharge the employee? (9) Who had the obligation to
pay the employee?
Id. at 1244. The Court must consider and weigh all factors;
however, the first factor, who controlled the employee, is a
“central issue.” Id.
Who Controlled Cook
The Fifth Circuit has held that receiving work orders only
from the borrowing employer’s personnel satisfies this crucial
factor. Id. at 1245. The record undisputedly indicates that EPL
controlled Cook during his time on the SP-57B; EPL directed work
that Cook was to perform as well as his work schedule. Cook only
reported to EPL employees, who served as his supervisors, aboard
the SP-57B. No Wood Group employee was aboard the platform to
surpervise Cook and his contact with Wood Group was as little as
once per quarter. EPL’s exclusive control over Cook’s work duties
establishes his status as EPL’s borrowed employee.
Whose Work Did Cook Perform
Cook performed the work of EPL, not Wood Group. Wood Group
supplies labor to oil companies, facility owners, and/or mineral
lessees. Wood Group’s employees aboard the SP-57B assisted EPL in
its oil and gas production operations. Therefore, when Cook worked
for EPL to assist in production activity, he performed the work of
EPL and not Wood Group. The Fifth Circuit specifies that it is
irrelevant that the borrowed employee’s work was incidental to the
borrowing employer’s essential business. Id. Cook’s inspection of
Reel #10 may have been incidental to EPL’s primary business but it
does not change the fact that he performed EPL’s work.
Did Cook Agree or Understand the Employment Dynamic
Wood Group’s Master Service Contract (MSC) with EPL does not
affect Cook’s status as a borrowed employee. The MSC attempts to
hold Wood Group responsible for Cook’s actions. However, where a
borrowing employer controls the employee in all material aspects,
the MSC will not serve to shield the borrowing employer from
liability. See Crawford v. BP Corp. N. Am. Inc., Civil Action No.
13-445, 2015 WL 1190123, at *2-3 (E.D. La. Mar. 16, 2015). Because
Therefore, the MSC does not effectively shield EPL from liability.
Did Cook Acquiesce in the Work Situation
Cook was undeniably aware of the work arrangement with EPL.
The focus of this factor “is whether the employee was aware of his
work conditions and chose to continue working in them.” Fairley v.
Murphy Expl. & Prod. Co., 58 F. Supp. 3d 641, 644 (E.D. La. 2014).
directions from its employees, and never complained about the work
relationship to Wood Group. Accordingly, this factor weighs in
favor of Cook’s borrowed employee status.
Did Wood Group Terminate Cook
Wood Group essentially relinquished control of Cook while he
worked on EPL’s platform. “‘The emphasis when considering this
factor should focus on the lending employer’s relationship while
the borrowing occurs.’” Id. (quoting Melancon, 834 F.2d at 1244).
Here, the record indicates that Cook rarely had interaction with
fellow Wood Group employees and personnel. He spoke to Wood Group
employees quarterly, mainly for information regarding uniforms and
other non-work specific issues. Though Wood Group did continue to
issue Cook’s paycheck, it did so only after EPL approved Cook’s
hours and gave clearance for Wood Group to issue the check. Wood
Group, thus, relinquished control over Cook.
Who Furnished Cook’s Tools and Workplace
EPL undisputedly furnished Cook’s tools, transportation to
and from the platform, lodging, and work materials. The record
indicates EPL provided everything Cook needed while aboard the SP57B, which supports finding Cook is EPL’s borrowed employee.
Was Cook Employed with EPL for Considerable Time
Cook worked for EPL a considerable length of time. Employees
have qualified for borrowed employee status after working for a
borrowing employer for as little as one day. Capps v. N.L. BaroldNL Indus., Inc., 784 F.2d 612, 618 (5th Cir. 1986). Here, Cook
worked for EPL aboard the SP-57B for eight months. His employment
qualifies as a considerable length of time, suggesting he is a
Who Had Authority to Discharge Cook
The record indicates that EPL had the authority to discharge
workers from their duties aboard the SP-57B. This Court held in
Fairley v. Murphy Exploration & Production Co. that the borrowing
employer need not have the authority to terminate the borrowed
employee from its direct employer to satisfy this factor. Fairley,
58 F. Supp. 3d at 645. It is thus sufficient that EPL could
terminate Cook from his work with EPL but not terminate Cook from
Who Had the Obligation to Pay Cook
Finally, that Wood Group issued Cook’s paycheck does not
defeat Cook’s status as EPL’s borrowed worker. Cook’s wages were
based on hours he worked for EPL, and EPL had to approve the hours
before Wood Group paid Cook. The record indicates Wood Group only
paid Cook for hours worked for EPL, and further, that Wood Group
invoiced EPL for the exact amount of time Wood Group’s employees,
including Cook, worked for EPL. This arrangement supports Cook’s
borrowed employee status. See id.
Despite the MSC providing that Wood Group remained liable for
Cook’s actions as his employer, this Court finds that there are no
genuine issues of material fact as to the borrowed status of Mr.
Cook. Accordingly, the motion for summary judgment is GRANTED.
New Orleans, Louisiana, September 14, 2016
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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