Washington v. Fieldwood Energy LLC et al

Filing 88

ORDER AND REASONS denying 72 Motion for Summary Judgment; granting 73 Motion for Reconsideration. The Court REVERSES its ruling dismissing Wood Group in Record Document 68 and REINSTATES Plaintiff's claims against Wood Group for vicarious liability of Justin Roberts. 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 Defendant Fieldwood Energy LLC’s Second Motion
for Summary Judgment or Alternatively for Reconsideration (Doc. 72) and
Motion for Reconsideration (Doc. 73). For the following reasons, the Motion for
Summary Judgment is DENIED, and the Motion for Reconsideration 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’s Complaint alleged that Defendant

Fieldwood Energy LLC (“Fieldwood”) is liable to him under the Outer
Continental Shelf Lands Act (“OCSLA”) as the owner/operator of the platform,
and Defendant Wood Group PSN, Inc. (“Wood Group”) is vicariously liable to
him for the negligence of its employee, Justin Roberts.
Defendant Fieldwood moved for summary judgment, arguing that
Plaintiff was a borrowed employee of Fieldwood and thus his exclusive remedy
was under the Longshore and Harbor Worker’s Compensation Act (“LHWCA”).
Defendant Wood Group 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. In deciding these motions,
the Court held that Justin Roberts was the borrowed employee of Fieldwood
and therefore dismissed Plaintiff’s claims against Wood Group. The Court,
however, denied Fieldwood’s Motion for Summary Judgment, holding that
there were material issues of fact regarding Plaintiff’s status as a borrowed
employee of Fieldwood.
Fieldwood has now filed the two instant motions, which it has styled as
a Second Motion for Summary Judgment or Alternatively Motion to Revise the
Order and Reasons (Doc. 72) and a Motion to Revise Order and Reasons (Doc.
73). Despite what Fieldwood has titled these motions, each motion asks for
reconsideration of this Court’s prior Order and Reasons and will be treated as
motions for reconsideration under Federal Rule of Civil Procedure 54(b).
Fieldwood is not entitled to a second motion for summary judgment. Although
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this Court continued the trial date after its ruling on Defendants’ initial
summary judgment motions, it did not reset a dispositive motion deadline. The
dispositive motion filing deadline in this matter was June 13, 2017.
Accordingly, Fieldwood’s purported Second Motion for Summary Judgment,
filed on August 29, 2017, was untimely. This Court will treat this motion as
one for reconsideration.
LEGAL STANDARD
A Motion for Reconsideration of an interlocutory order is governed by
Federal Rule of Civil Procedure 54(b), which states that: “[A]ny order or other
decision, however designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not end the action as to
any of the claims or parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties’ rights and
liabilities.” “Under Rule 54(b), ‘the trial court is free to reconsider and reverse
its decision for any reason it deems sufficient, even in the absence of new
evidence or an intervening change in or clarification of the substantive law.’” 1
“‘[T]he power to reconsider or modify interlocutory rulings is committed to the
discretion of the district court, and that discretion is not cabined by the
heightened standards for reconsideration’ governing final orders.’” 2

Austin v. Kroger Texas, L.P., No. 16-10502, 2017 WL 1379453, at *9 (5th Cir. 2017)
(quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)).
2 Id. (quoting Saint Annes Dev. Co. v. Trabich, 443 Fed. Appx. 829, 831–32 (4th Cir.
2011)).
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LAW AND ANALYSIS
Although presented in separate motions, Fieldwood challenges both of
the Court’s prior holdings regarding the borrowed employee status of Plaintiff
and Justin Roberts. This Court will consider each of Fieldwood’s arguments
for reconsideration in turn.
A. Plaintiff’s Borrowed Employee Status
In its motion for reconsideration of this Court’s holding that material
issues of fact exist as to Plaintiff’s status as a borrowed employee, Fieldwood
asserts substantially the same arguments already addressed by this Court. It
adds, however, a second declaration from Fieldwood employee, James Pena,
and a new declaration from Taylors COO, Barry Johnson. Fieldwood does not
present any reason why these declarations were not, or could not have been,
included with its prior motion. 3 Even so, this additional evidence and
argument does not persuade this Court to change its opinion.
Fieldwood’s motion contests this Court’s findings on three of the Ruiz
factors regarding borrowed employee status. In Ruiz v. Shell Oil Co., the Fifth
Circuit delineated nine factors concerning whether an individual qualifies as a
“borrowed employee.” Fieldwood contests this Court’s findings on the first
three factors: (1) who has control over the employee and the work he is
performing; (2) whose work is being performed; and (3) whether there was an
“Courts evaluate motions to reconsider interlocutory orders under a ‘less exacting’
standard than Rule 59(e), but, nevertheless, look to similar considerations for guidance.”
Union Pac. R.R. Co. v. Taylor Truck Line, Inc., No. 15-0074, 2017 WL 2389411, at *1 (W.D.
La. June 1, 2017). Rule 59(e) serves the narrow purpose of correcting “‘manifest error[s] of
law or fact or . . . presenting newly discovered evidence.’”3 Advocare Int’l, LP v. Horizon
Labs., Inc., 524 F.3d 679, 691 (5th Cir. 2008) (quoting Rosenzweig v. Azurix Corp., 332 F.3d
854, 863 (5th Cir. 2003)).
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agreement, understanding, or meeting of the minds between the original and
the borrowing employer. 4
Regarding the second factor—whose work is being performed—this
Court held that Plaintiff was performing the cooking and cleaning work of
Taylors, not the oil and gas production work of Fieldwood, and therefore, that
factor weighed in favor of a finding that Plaintiff was not a borrowed employee.
In its Motion for Reconsideration, Fieldwood complains about this
Court’s reliance on Rollans v. Unocal Expl. Corp., which expressly held that a
cook aboard a platform was performing the work of its actual employer who
contracted with the platform operator to provide catering services. 5 Fieldwood
argues that this Court should have instead followed the Fifth Circuit’s holding
in Melancon v. Amoco Production Co., which held that a welder was doing the
work of the platform operator, Amoco, because his “work assisted Amoco in the
production of hydrocarbons by maintaining the production equipment and
platforms in the Amoco field.” 6 It went on to note that, “It is irrelevant that
Melancon’s primary job was welding, which was an essential, although only
incidental, aspect of Amoco’s business.” 7 Fieldwood argues that Plaintiff’s job
of cooking and cleaning is likewise incidental to its oil production work.
Not only are the facts of Melancon easily distinguishable from those at
issue here, its holding is not “in conflict” with Rollans as Fieldwood suggests.
Melancon held that welding was an essential aspect of Amoco’s business—oil
production—and therefore Melancon was performing its work. Cooking and
4
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1993).

6
7

See Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969).
Rollans v. Unocal Expl. Corp., No. 93-431, 1993 WL 455731, at *2 (E.D. La. Nov. 4,
Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 (5th Cir. 1988).
Id.
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cleaning cannot be said to be an essential aspect of oil and gas production. In
addition, the maintenance of production equipment is far less incidental to that
production than cooking and cleaning for the crew. Accordingly, Melancon is
in line with, and indeed supports, this Court’s prior holding.
As to the third prong—considering the agreement between the
employers—this Court’s prior order held that the Master Service Agreement
between Fieldwood and Taylors created material issues of fact regarding
Plaintiff’s borrowed employee status.

The Agreement contains language

stating 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.” 8

In addition, however, the

Agreement also contains a provision requiring Taylors to endorse its insurance
policies to include a borrowed servant endorsement. The Fifth Circuit has held
that “a contract provision purporting to prohibit borrowed-employee status”
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.” 9 As discussed above, at least the second factor
points to a finding that Plaintiff is not a borrowed employee, and therefore, the
Court found that this factor created a material issue of fact.
In seeking reconsideration, Plaintiff cites to the Fifth Circuit’s opinion
in Alexander v. Chevron, which distinguished similar language that did not
expressly purport to prohibit a borrowing employer relationship. 10 Both the
Doc. 52-2.
Billizon v. Conoco, Inc., 993 F.2d 104, 106 (5th Cir. 1993).
10 Alexander v. Chevron, U.S.A., 806 F.2d 526, 528 (5th Cir. 1986).
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8
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agreement in Alexander and the one at issue here contain language purporting
to establish that the borrowed employee shall remain an independent
contractor. 11 The court in Alexander distinguished this language from cases
involving agreements that explicitly prohibited the employee from being
The agreement in Alexander is

considered a borrowed employee. 12

distinguishable from that at issue here, however, because the Agreement here
contains a second sentence declaring that neither Taylors nor its employees
“shall be deemed to be subject to the control or direction of Company
[Fieldwood] as to the details of the Work.” This additional sentence clearly
purports to “prohibit borrowed-employee status” as it relates to the first Ruiz
factor. Accordingly, this Court is unconvinced that it erred in its prior holding
and maintains that the third Ruiz factor creates a material issue of fact.
In light of the material issues of fact present in the third factor and the
second factor’s clear counsel against a borrowed employee finding, this Court
need not consider Fieldwood’s arguments regarding the first factor of control.
The Court declines to reverse its prior holding and maintains that a material
issue of fact exists as to Plaintiff’s borrowed employee status.
B. Roberts’s Borrowed Employee Status
Next, Fieldwood argues that this Court erred in dismissing Plaintiff’s
claims against Wood Group after holding that its employee, Justin Roberts,
was the borrowed employee of Fieldwood. Fieldwood does not contest Roberts’s
status, however, it argues that even if Roberts is its borrowed employee, Wood
Group is not absolved of vicarious liability for his actions. This argument,

11
12

Id.
Id.

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although mentioned by Fieldwood in its Reply to its Motion for Summary
Judgment, 13 was not specifically addressed by this Court in its previous order.
Finding that the argument has merit, the Court will do so now.
Fieldwood argues that Louisiana tort law applies to this issue through
OCSLA and holds that that the lending employer is solidarily liable with the
borrowing employer for the torts of the borrowed employee. Fieldwood cites to
the Louisiana Supreme Court’s decision in Morgan v. ABC Manufacturer for
this dual employer doctrine argument. 14 Wood Group opposes this argument,
asserting instead that the dual employer doctrine does not apply in cases
involving LHWCA.
In Morgan, the Court held that both the lending and borrowing
employers could be liable to an injured third party for the torts of the borrowed
employee. 15 Wood Group cites to Jones v. Compression Coat Corporation and a
string of other state appellate court cases for the proposition that Morgan does
not apply to cases involving the LHWCA. Indeed, Jones stated that “because
the instant case involves the LHWCA, Morgan is inapplicable.” 16 However,
Jones and all of the other cases cited by Wood Group concern a different issue
than that present here. 17

Doc. 63.
710 So. 2d 1077, 1082 (La. 1998).
15 Id.
16 Jones v. Compression Coat Corp., 776 So. 2d 505, 510 (La. App. 3 Cir. 2000).
17 Ortega v. Semco, L.L.C., 762 So. 2d 276, 278 (La. App. 5 Cir. 2000) (considering
“whether the borrowing employer (Semco) is liable to the borrowed employee (Ortega), in tort,
for injuries he sustained while at work at the temporary job site”); Foster v. Consol.
Employment Sys., Inc., 726 So. 2d 494, 496 (La. App. 5 Cir. 1999) (considering co-employees);
Dyer v. Serv. Marine Indus., Inc., 723 So. 2d 1135, 1138 (La. App. 1 Cir. 1998) (considering
borrowed employee relationship); Foreman v. Danos & Curole Marine Contractors, Inc., 722
So. 2d 1, 8 (La. App. 1 Cir. 1998) (considering co-employees).
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13
14

In Jones, the plaintiff was employed by a staffing company and was
working for Compression Coat Corporation (“Compression”) when he was
injured.

Plaintiff alleged that the negligence of Mark Hanks, who was

employed by Paul Laine Company (“PLC”) but working for Compression,
caused his injury. The court held that both the plaintiff and Hanks were the
borrowed employees of Compression. The court then considered whether the
plaintiff could proceed in his claim against PLC. The court held that the rule
of Morgan was inapplicable because the LHWCA applied to prevent suit
between co-employees. It held that the LHWCA’s prohibition against suits
between co-employees extended to the solidary obligor of a co-employee, i.e. the
employee’s nominal employer. Therefore, the plaintiff could not succeed in its
suit against PLC for Hank’s negligence.
Here, this Court has not held that Plaintiff and Roberts are coemployees. Indeed, it has affirmed its prior holding that there are material
issues of fact regarding whether Plaintiff is the borrowed employee of
Fieldwood. Accordingly, the LHWCA’s prohibition against suits between coemployees and their solidary obligors is inapplicable in this case. Jones and
the other cases cited by Wood Group do not stand for the proposition that Wood
Group cannot be held vicariously liable for the negligence of Roberts when he
is the borrowed employee of another. In fact, Jones seems to suggest the
opposite. Jones expressly states that a “vicariously liable nominal employer
and its negligent nominal employee . . . are solidary obligors.” 18 The only thing
that prevents suit against the nominal employer in Jones is the co-employee

18

Jones, 776 So. 2d at 509.

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status between the negligent nominal employee and the injured party. 19 Such
a relationship is not at issue here, and the Wood Group has not shown this
Court how the analysis of Jones applies in this case.
Wood Group next argues that the reasoning of Morgan is no longer sound
in light of the Louisiana legislature’s amendment abolishing solidary liability
between joint tortfeasors. Indeed, “[a]fter the 1996 tort revision legislation,
[Civil Code article] 2324 provides that joint tortfeasors are liable only for the
proportion of fault allocated to them by the trier of fact and are no longer in
solido.” 20 Employers and employees, however, have never been considered joint
tortfeasors. 21 “A joint tortfeasor is one whose conduct (whether intentional or
negligent) combines with the conduct of another so as to cause injury to a third
party.” 22 “In the context of vicarious liability, an employee and employer are
not joint tortfeasors, since ‘[l]iability is imposed upon the employer without
regard to his own negligence or fault; it is a consequence of the employment
relationship.’” 23 Accordingly, the 1996 amendments had no effect on the
relationship between employees and employers, and there is therefore no
reason why such would invalidate the holding in Morgan.
Accordingly, Wood Group has failed to convince this Court that the rule
of Morgan should not apply to this case through OCSLA. Morgan holds that a
lending employer is still liable for to an injured third party for the torts of the
borrowed employee. Accordingly, Wood Group may still be vicariously liable
Id.
WILLIAM CRAWFORD, 12 LA. CIV. L. TREATISE § 8:1 (2d ed.).
21 See Sampay v. Morton Salt Co., 395 So. 2d 326, 328 (La. 1981).
22 Milbert v. Answering Bureau, Inc., 120 So. 3d 678, 688 (La. 2013).
23 Bienville Par. Police Jury v. U.S. Postal Serv., 8 F. Supp. 2d 563, 567 (W.D. La.
1998) (quoting Sampay, 395 So. 2d at 328 (La. 1981)).
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19
20

for the negligence of it nominal employee, Roberts.

This Court therefore

reverses its dismissal of Wood Group from this matter and reinstates Plaintiff’s
claims against it.
CONCLUSION
For the foregoing reasons, Defendant Fieldwood’s Motion for Summary
Judgment is DENIED, and Motion for Reconsideration is GRANTED. The
Court REVERSES its ruling dismissing Wood Group in Record Document 68
and REINSTATES Plaintiff’s claims against Wood Group for vicarious liability
of Justin Roberts.
New Orleans, Louisiana this 2nd day of January, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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