Washington v. Fieldwood Energy LLC et al

Filing 68

ORDER AND REASONS granting, IN PART, Fieldwood Energy LLC and Fieldwood Energy Offshore LLC's 46 Motion for Summary Judgment; granting Wood Group PSN, Inc.'s 48 Motion for Summary Judgment. Plaintiff's claims against Fieldwood Energy Offshore LLC and Wood Group PSN, Inc. are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONALD WASHINGTON

CIVIL ACTION

VERSUS

NO: 15-6615

FIELDWOOD ENERGY LLC

SECTION "H"

ORDER AND REASONS
Before the Court are Defendants Fieldwood Energy LLC and Fieldwood
Energy Offshore LLC’s Motion for Summary Judgment (Doc. 46) and
Defendant Wood Group PSN, Inc.’s Motion for Summary Judgment (Doc. 48).
For the following reasons, Fieldwood’s Motion is GRANTED IN PART, and
Wood Group’s Motion is GRANTED.
BACKGROUND
Plaintiff Donald Washington alleges that he was injured when he slipped
and fell while working aboard an oil and gas production platform located on
the Outer Continental Shelf. Plaintiff was a cook employed by a third-party,
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Taylors International (“Taylors”), and assigned to the platform VR 272A.
Plaintiff alleges that he was injured when he slipped and fell on unsecured
stairs while carrying steaks.

Plaintiff alleges that Defendants Fieldwood

Energy LLC (“Fieldwood”) and Fieldwood Energy Offshore LLC are liable to
him under the Outer Continental Shelf Lands Act (“OCSLA”) as the
owner/operator of the platform.
In addition, Plaintiff alleges that Defendant Wood Group PSN, Inc.
(“Wood Group”) is vicariously liable to him for the negligence of its employees.
He alleges that Justin Roberts, an employee of Wood Group working as a
production operator on the platform, had prior knowledge that the stairs on
which Plaintiff fell were unsecured but nothing was done to repair them.
Defendants Fieldwood and Fieldwood Energy Offshore, LLC have moved
for summary judgment, arguing that Plaintiff was a borrowed employee of
Fieldwood and thus his exclusive remedy is under the Longshore and Harbor
Worker’s Compensation Act (“LHWCA”). They also allege that Plaintiff has no
basis for finding liability on the part of Fieldwood Energy Offshore, LLC, a
wholly owned subsidiary of Fieldwood.
Defendant Wood Group has also moved for summary judgment, arguing
that its employee Justin Roberts was a borrowed employee of Fieldwood, and
it therefore cannot be vicariously liable for his actions. This Court will discuss
each Motion in turn.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
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any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 1 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 2
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 3 “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.” 4 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 5 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 6 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the

Fed. R. Civ. P. 56(c) (2012).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
6 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
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necessary facts.” 7 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 8
LAW AND ANALYSIS
I.

Fieldwood’s Motion for Summary Judgment
A. Borrowed Employee
Defendants allege that Plaintiff was a borrowed employee of Fieldwood

at the time of his accident and therefore his exclusive remedy arises under the
LHWCA, applicable by virtue of OCSLA. They argue that under the LHWCA,
Plaintiff cannot bring a tort claim against Fieldwood and his negligence claims
must therefore be dismissed.

Plaintiff argues that he is not a borrowed

employee of Fieldwood.
Whether an individual qualifies as a “borrowed employee” is an issue of
law determined by nine separate factors first delineated by the Fifth Circuit in
Ruiz v. Shell Oil Co. The factors are:
(1) who has control over the employee and the work he is performing,
beyond mere suggestion of details or cooperation;
(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;
Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
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(6) who furnished tools and place for performance;
(7) was the new employment over a considerable length of time;
(8) who had the right to discharge the employee;
(9) who had the obligation to pay the employee. 9
No single factor or set of factors is determinative in establishing a “borrowed
employee” relationship, however the central factor is that of control. 10 The
party asserting the borrowed servant relationship, has the burden of proving
the relationship. 11 Plaintiff does not contest that factors 4, 6, 7, 8, and 9 weigh
in favor of a borrowed employee finding. This Court will consider each of the
remaining factors in turn.
1. Control
“In considering whether the power exists to control and direct a servant,
a careful distinction must be made between authoritative direction and control,
and mere suggestion as to details or the necessary co-operation, where the
work furnished is part of a larger undertaking.” 12

It is undisputed that

Plaintiff worked as a cook on Fieldwood’s platform preparing food for its
workers, doing laundry, and cleaning the living quarters. Plaintiff was the
only employee from Taylors on the platform. Plaintiff performed his duties
without much instruction and largely went unsupervised.

He stuck to a

specific set schedule of cleaning and cooking, which he had performed aboard
platform VR 272A since even before Fieldwood acquired ownership of it. 13 He
See Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969).
Brown v. Union Oil Co. of Calif., 984 F.2d 674, 676 (5th Cir. 1993).
11 Franks v. Assoc’d Air Center, Inc., 663 F.2d 583, 587 (5th Cir. 1991).
12 Ruiz, 413 F.2d at 313 (internal quotations omitted).
13 Plaintiff had worked on the VR 272 A platform for four years prior to his accident
for two prior platform owners and a different catering contractor. When Fieldwood acquired
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selected the menu and decided what to cook on any given day but often asked
for requests from Fieldwood personnel. Occasionally, the time that he served
dinner was subject to change depending on the schedules of the Fieldwood
employees. Plaintiff worked 14 days on, and 14 days off of the platform; his
work schedule was set by Fieldwood.
Defendants argue that they supervised Plaintiff’s work and gave him
work instructions. They point out that no one from Taylors was on the platform
to supervise Plaintiff and that he had little interaction with Taylors personnel.
Plaintiff, on the other hand, argues that he required and received little to no
instruction or supervision. He argues that there is no evidence showing any
actual work instructions or assignments given to him by Fieldwood personnel.
In Robertson v. W & T Offshore, Inc., a court in the Western District of
Louisiana found that a cook on a platform was a borrowed employee and that
the control factor weighed in favor of such a finding. 14 The facts showed that
the plaintiff took instruction and orders from the borrowing employer, W & T
Offshore, Inc. 15 He argued, however, that as a skilled cook he controlled his
own work pursuant to the instructions he had received from his nominal
employer, OSA. 16 The court found this argument unavailing, stating that:
It is often the case that an employee comes into a job already
trained. Following plaintiff’s logic, however, any employer who
hires a skilled or trained employee would be incapable of fulfilling
the control factor. This result is simply untenable, and the Court
rejects plaintiff’s argument . . . . “[t]his Court does not interpret
the control factor to require that the borrowing employer direct
the platform, it selected Taylors as its catering contractor and referred Plaintiff to apply to
work for Taylors.
14 Robertson v. W & T Offshore, Inc., 712 F. Supp. 2d 515 (W.D. La. 2010).
15 Id.
16 Id.
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each and every action taken by the borrowed employee.” A
borrowing employer is not required to micro-manage a borrowed
employee in every assigned task.” . . . In the instant case, once he
was on W & T’s platform, plaintiff performed W & T’s work and
was under the direct control and supervision of W & T’s employees.
No OSA employees were aboard the platform during any of
plaintiff’s hitches, and there is no competent evidence to suggest
OSA, in any way, actually maintained control of the plaintiff.
Although plaintiff chose what meals to cook and ordered his food
and ingredients accordingly, plaintiff admitted he tried to
accommodate the W & T personnel whenever possible in that
regard. Additionally, W & T directed when meals were to be
served. 17
The court reached a different result, however, in Mathis v. Union
Exploration Partners, Ltd, in which a court in the Eastern District of Louisiana
denied summary judgment stating that there was a material issue of fact as to
whether the platform’s cook was under Ruiz control of the platform operator. 18
In that matter, the plaintiff was the only employee of his actual employer
aboard the platform, and he argued that “he was able to perform his work
independent from his employer at all times, essentially making him his own
boss.” 19 He argued that any instructions from the platform operator were
“mere suggestions.” The court held that the control factor presented a factual
issue which precluded summary judgment. 20
The Court finds that the facts presented here are more in line with
Mathis. Here, there is an issue of material fact as to whether Fieldwood
Id. at 529 (quoting Magnon v. Forest Oil Corp., No. 06-0587, 2007 WL
2736612, at *3–4 (W.D. La. Sept. 18, 2007)).
18 Mathis v. Union Expl. Partners, Ltd., No. 90-2009, 1991 WL 42570, at *2 (E.D. La.
Mar. 26, 1991).
19 Id.
20 Id.
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personnel supervised Plaintiff. The lead operators at Fieldwood, James Pena
and John Teer, declared by affidavit that Plaintiff “received his daily work
instructions and assignments” from them. 21

Plaintiff testified at his

deposition, however, that the lead operators “didn’t have to tell” him what to
do and that he “knew his job.” Accordingly, there is a material issue of fact as
to whether Fieldwood gave Plaintiff daily work assignments or instructed him
regarding his job. Resolution of this fact issue is crucial to a determination of
whether Fieldwood exercised the requisite control for Plaintiff to be considered
its borrowed employee. “An issue of fact on one Ruiz factor, however, does not
preclude ‘borrowed employee’ status.” 22 Accordingly, the Court will consider
the remaining, contested Ruiz factors.
2. Work Performed
Fieldwood contends that Plaintiff was performing Fieldwood’s work at
all times, including cooking and cleaning for its personnel. Plaintiff argues
that while he was cooking and cleaning for Fieldwood, he was actually
performing the work of Taylors, its catering contractor. Plaintiff submits that
“he was only incidentally performing work for Fieldwood in support of its
oilfield operations, while performing the actual work of cooking and cleaning
which Taylors had contracted to provide.” 23 This Court agrees with Plaintiff.
Plaintiff was not performing Fieldwood’s oil and gas work, rather he was
performing the cooking and cleaning that Taylors had contracted to provide to

Docs. 46-4, 46-5.
Vincent v. Fieldwood Energy, L.L.C., No. 14-2885, 2015 WL 6758269, at *3 (E.D.
La. Nov. 5, 2015).
23 Doc. 52, p. 9.
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Fieldwood. 24 Accordingly, this factor weighs in favor of a finding that Plaintiff
is not a borrowed employee.
3. Agreement or Understanding
Taylors served as a catering contractor for Fieldwood.

The parties

entered into a Master Service Agreement, which stated, among other things,
that “Contractor [Taylors] shall be, and perform at all times, as an independent
contractor; and neither Contractor nor any member of Contractor Group shall
be deemed to be subject to the control or direction of Company [Fieldwood] as
to the details of the Work.” 25 Accordingly, it appears the parties attempted to
contractually prevent a borrowed employee finding.

“The reality at the

worksite and the parties’ actions in carrying out a contract, however, can
impliedly modify, alter, or waive express contract provisions.” 26 The Fifth
Circuit has held that such contract language creates an issue of fact as to the
third factor, such that summary judgment would be appropriate only when
“the remaining factors clearly point to borrowed-employee status.” 27
In addition, Defendants point out another provision of the contract that
requires Taylors to endorse its insurance policies to include a borrowed servant
endorsement.

Defendants argue that this is proof that the parties

contemplated that Taylor’s employees might become borrowed employees of
Rollans v. Unocal Expl. Corp., No. 93-431, 1993 WL 455731, at *2 (E.D. La. Nov.
4, 1993) (“Plaintiff was incidentally performing UNOCAL’s work in that he was helping
UNOCAL to operate its platform by cooking for the crew. However, Plaintiff was actually
performing work for Energy Catering who contracted with UNOCAL to provide offshore
catering services.”); But see Robertson v. W & T Offshore, Inc., 712 F. Supp. 2d 515, 529
(W.D. La. 2010).
25 Doc. 52-2.
26 Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 (5th Cir.), amended on reh’g in
part sub nom. Melancon v. Amoco Prods. Co., 841 F.2d 572 (5th Cir. 1988).
27 Billizon v. Conoco, Inc., 993 F.2d 104, 106 (5th Cir. 1993).
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Fieldwood. In light of the foregoing, there are material issues of fact as to the
agreement or understanding between Fieldwood and Taylors as to Plaintiff’s
status.
4. Termination of Relationship
Fieldwood argues that Plaintiff had little to no interaction with Taylors
during his employment on the platform. No other Taylors employees were on
the platform and his only contact with Taylors was to confirm receipt of his
time sheets, which were sent by supervisors at Fieldwood. The Court finds this
factor weighs in favor of a borrowed employee finding.
In conclusion, all but factors one, two, and three weigh in favor of a
borrowed employee finding. Factors one and three, however, present material
issues of fact such that summary judgment would be inappropriate. 28

A

determination of control and the parties’ understanding is best left to the fact
finder at trial. Defendant’s request for summary judgment on the borrowed
employee issue is denied.
B. Fieldwood Energy Offshore, LLC
Defendants next argue that Fieldwood Energy Offshore, LLC is a wholly
owned subsidiary of Fieldwood with no employees, and therefore Plaintiff has
not assigned any negligence or fault to Fieldwood Offshore Energy, LLC.
See Brown v. Union Oil Co. of California, 984 F.2d 674, 679 (5th Cir. 1993)
(“[C]ontract provision between the two employers weighs against borrowed employee status,
and the remaining factors do not overwhelmingly show that Brown was a borrowed employee.
Important factual questions need to be resolved, including: (1) Who gave Brown instructions
on how and when to clean the platform? (2) What was the agreement or understanding
between Union and Gulf Inland regarding borrowed employee status? See Melancon, 834 F.2d
at 1245 & n. 13. Once these important factual issues have been resolved, the district court
must determine, as a matter of law, whether Brown was Union’s borrowed employee.”).
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Plaintiff does not oppose the dismissal of Fieldwood Offshore Energy, LLC.
Accordingly, all claims against it are dismissed.
II.

Wood Group’s Motion for Summary Judgment
In its Motion, Wood Group alleges that its employee, Justin Roberts, is

the borrowed employee of Fieldwood and therefore Wood Group cannot be
vicariously liable for his negligence. Wood Group alleges that Fieldwood asked
it to provide additional production operator personnel to work on the platform
and that those workers became the borrowed employees of Fieldwood. “[U]nder
the borrowed employee doctrine, an employer will be liable through respondeat
superior for negligence of an employee he has ‘borrowed,’ that is, one who does
his work under his supervision and control.” 29 In its opposition, Plaintiff
argues that there are material issues of fact as to factors one and three of the
Ruiz test. He does not dispute that the other factors weigh in favor of a
borrowed employee finding. Accordingly, this Court will consider factors one
and three of the Ruiz test to determine whether Roberts is a borrowed
employee of Fieldwood.
A. Control
Wood Group alleges that Fieldwood controlled and supervised Roberts.
Roberts testified that he attended daily safety meetings with Fieldwood
operators where he received work assignments, training, and directions. He
testified that Fieldwood operators often inspected his work or assisted him in
completing tasks with which he was unfamiliar. He also admitted that there
were no Wood Group operators on the platform and that he only spoke to a
29

Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977).
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representative of Wood Group about once a month. Given this testimony, this
Court finds that Fieldwood clearly exercised control over Roberts, and this
factor weighs in favor of a finding of borrowed employee status.
B. Agreement or Understanding
Next, Plaintiff points out that the Master Service Agreement between
Wood Group and Fieldwood contains identical language to that discussed
above. As discussed, such a contract provision may create a material issue of
fact unless the “remaining factors clearly point to borrowed-employee status.” 30
Here, all eight other factors and Plaintiff’s clear deposition testimony weigh in
favor of a borrowed employee finding. The reality of the worksite operates as
an implied modification of the contract, and the contract therefore does not
preclude a borrowed employee finding. 31
Having found that Justin Roberts was a borrowed employee of
Fieldwood, Plaintiff’s vicarious liability claims against Wood Group are
precluded.

Billizon, 993 F.2d at 106.
Melancon, 834 F.2d at 1245 (“The reality at the worksite and the parties’ actions
in carrying out a contract, however, can impliedly modify, alter, or waive express contract
provisions.”).
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CONCLUSION
For the foregoing reasons, Defendant Fieldwood’s Motion for Summary
Judgment is GRANTED IN PART, and Plaintiff’s claims against Fieldwood
Energy Offshore LLC are DISMISSED WITH PREJUDICE. Wood Group’s
Motion for Summary Judgment is GRANTED, and Plaintiff’s claims against
Wood Group are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 1st day of August, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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