Mosley v. Wood Group PSN, Inc. et al

Filing 116

ORDER AND REASONS granting 91 , 92 , 94 Motions for Summary Judgment. Plaintiff's claims against all defendants are DISMISSED WITH PREJUDICE. Defendants are entitled to judgment in their favor. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DWAYNE MOSLEY

CIVIL ACTION

VERSUS

NO: 16-107

WOOD GROUP, PSN INC. ET AL.

SECTION: “H”(1)

ORDER AND REASONS
Before the Court are Defendant Wood Group PSN Inc.’s Motion for
Summary Judgment (Doc. 94 ), Defendant Fieldwood Energy LLC’s Motion for
Summary Judgment (Doc. 91), and Defendants Linear Controls, Inc. and
Linear Controls Operating, Inc.’s Motion for Summary Judgment (Doc. 92).
For the following reasons, the Motions are GRANTED.
BACKGROUND
Plaintiff Dwayne Mosley alleges that he sustained a back injury when
he slipped and fell in hydraulic fluid on the deck of the fixed platform on which
he was working. Specifically, he contends that while a transformer was being
1

moved, it was damaged and began to leak hydraulic fluid. The leak was
initially contained in a bucket, but later, an employee of Defendant Wood
Group, Daryl Trahan, opened the spigot on the transformer and allowed
hydraulic fluid to run out onto the deck. Trahan attempted to wash the fluid
into a sump drain with a water hose. Trahan was thereafter reprimanded and
instructed to clean the area with soap. The next morning, Plaintiff slipped and
fell while walking through the area. Plaintiff brought suit against Wood Group
PSN, Inc. (“Wood Group”) and Fieldwood Energy LLC (“Fieldwood”), the
owners and/or operators of the platform, as well as Linear Controls, Inc. and
Linear Controls Operating, Inc.’s (collectively, “Linear Controls”) for their
negligence in moving the transformer.
Each Defendant has filed a separate motion for summary judgment
seeking dismissal of the claims against it. Fieldwood argues that Mosley is its
borrowed employee and therefore his exclusive remedy lies in the
Longshoremen and Harbor Workers’ Compensation Act (“LHWCA”) and his
tort claims against it cannot prevail. Wood Group alleges that both Jessie
Villemarette, Mosley’s supervisor, and Trahan are also borrowed employees of
Fieldwood, and it therefore cannot be vicariously liable for their negligence.
Finally, Linear Controls argues that it cannot be liable for Mosley’s injuries
because (1) Trahan’s negligence was a superseding event, and (2) the hazard
was open and obvious. This Court will consider each argument in turn.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
2

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

Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
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).
3
1
2

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 and Wood Group’s Motions for Summary
Judgment

Fieldwood argues that Plaintiff was the borrowed employee of Fieldwood
and therefore his excusive remedy lies in the LHWCA, applicable by virtue of
OCSLA. It argues that under the LHWCA, Plaintiff cannot bring a tort claim
against Fieldwood if it is his borrowed employer and his negligence claims
must therefore be dismissed. Defendant concedes, however, that in order for
Plaintiff to be a borrowed employee of Fieldwood, his supervisor Jessie
Villemarette, a payroll employee of Wood Group, must also be a borrowed
employee of Fieldwood.
Wood Group also argues that Villemarette and Daryl Trahan, its payroll
employees, are the borrowed employees of Fieldwood, and it therefore cannot
be vicariously liable for their actions. It also points out that if all three men
are deemed to be the borrowed employees of Fieldwood, then Mosley cannot
assert a cause of action against his co-employees under 33 U.S.C. § 933 of the
LHWCA.

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).
4
7

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;
(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 This Court will consider these factors as
they relate to Villemarette, Mosley, and Trahan in turn.

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).
5
9

10

A. 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 Defendants contend that it
is the business of Wood Group to supply production operators to work as
directed by its customers.

They contend that Wood Group supplied

Villemarette to Fieldwood to work under its control as Fieldwood’s Person-inCharge (“PIC”) on the platform WD 80-D. Villemarette’s duties included
supervising the other operators and leading the safety meeting. Defendants
contend that all of his instructions and orders came from Frank Cornay,
Fieldwood’s production foreman and that Fieldwood was responsible for
Villemarette’s work schedule.
Mosley was provided to Fieldwood by QPS, whose business is to provide
qualified production operators to its customers. Mosley worked as a skilled
production operator. Fieldwood selected which platform Mosley worked on and
determined his schedule. Mosley reported directly to Villemarette and received
his daily work instructions from Villemarette, which included cleaning,
preparing reports, maintenance, and repairs. Mosley also performed rounds
every hour checking and inspecting the fuel lines, pumps, tubing, and
compressor etc. Mosley testified that he did not receive assignments from QPS
while aboard the platform and that his only contact with QPS concerned his

12

Ruiz, 413 F.2d at 313 (internal quotations omitted).
6

time sheets. Mosley was the only individual on the WD 80-D associated with
QPS.
Trahan was provided by Wood Group to work as a production operator
on Fieldwood’s platforms. Trahan also reported to and received instructions
from Villemarette. He testified that he attended daily safety meetings at
which they discussed the job tasks for the day. His responsibilities included
inspecting different parts of the platform, ensuring everything was running
properly, and making repairs as needed.
Plaintiff argues that Fieldwood did not have control over Villemarette,
Mosley, and Trahan because they were specialists or skilled workers who did
not need to be told how to perform their jobs. He argues that each knew how
to perform the functions of their positions and did not need to be supervised.
Plaintiff also argues that Cornay only communicated with Villemarette via
email and that there was not a Fieldwood representative in physical or verbal
contact with Villemarette on a daily basis.
In making these arguments, Plaintiff relies heavily on this Court’s prior
opinion in Washington v. Fieldwood Energy, in which this Court held that there
was a material issue of fact as to the control factor when the plaintiff testified
that “the lead operators ‘didn’t have to tell’ him what to do and that he ‘knew
his job.’” 13 However, the Court finds this case distinguishable. In Washington,
the Plaintiff was a cook aboard the platform who “performed his duties without
much instruction and largely went unsupervised.” 14 The plaintiff “stuck to a

Washington v. Fieldwood Energy LLC, No. 15-6615, 2017 WL 3264076, at *3 (E.D.
La. Aug. 1, 2017).
14 Id.
7
13

specific set schedule of cleaning and cooking, which he had performed aboard
platform VR 272A since even before Fieldwood acquired ownership of it. He
selected the menu and decided what to cook on any given day but often asked
for requests from Fieldwood personnel.” 15
Here, there is no indication that Villemarette, Mosley, or Trahan “largely
went unsupervised.” Indeed, Cornay testified that every PIC, like Villemarette,
communicated with him at least twice a day and that he advised them of any
activity that would be taking place on their platform. Another Fieldwood
representative testified that a PIC’s “overall work and responsibility” comes
from Fieldwood. The representative explained that a PIC is different from
other contractors because they are brought on to perform day-to-day activities
and not just one specific job. Mosley testified that he received all of his daily
work instructions from Villemarette.

Finally, Trahan testified that they

discussed their job tasks at the morning safety meeting, that he sometimes
asked Villemarette for tasks, that Villemarette occasionally taught him how to
do things, and that everything had to be done Villemarette’s way. This
evidence does not suggest that the employees were unsupervised or selfsufficient. It suggests that they were under the control of Fieldwood. “This
Court has held that close supervision of skilled employees is not necessary to
establish control.” 16

Instead, it is sufficient that, to the extent that the

employees were supervised, they were supervised by Fieldwood, not Wood

Id.
Ramsey v. Chevron U.S.A., Inc., No. 87-619, 1988 WL 2688, at *1 (E.D. La. Jan. 14,
1988). The Court notes, however, that Plaintiff has not put forth any argument or evidence
establishing that Villemarette, Mosley, or Trahan are skilled workers.
8
15
16

Group or QPS. 17

Accordingly, this factor weighs in favor of a borrowed

employee finding.
B. Work Performed
Fieldwood argues that Villemarette, Mosley, and Trahan were performing
its work on the WD 80-D because they assisted Fieldwood in the production of
oil and gas. Plaintiff contests that their work was as specialists or trained
professionals provided by Wood Group or QPS and therefore they performed
Wood Group’s or QPS’s work. This Court wholly disagrees. Despite the fact
that these production operators may have had certain skills and training when
they were assigned to work aboard a Fieldwood platform, they were
indisputably doing Fieldwood’s work by assisting it in the production of oil and
gas. 18 Wood Group’s and QPS’s work is merely to provide qualified employees
to businesses like Fieldwood.

This factor weighs in favor of a borrowed

employee finding.
C. Agreement or Understanding
Wood Group provided Villemarette and Trahan to work for Fieldwood
pursuant to a Master Service Contract (“MSC”). It provided that Wood Group
“shall be, and perform at all times, as an independent contractor” and neither
Wood Group nor its employees “shall be deemed to be subject to the control or
direction of [Fieldwood] as to the details of the Work.” QPS provided Mosley
to work for Fieldwood pursuant to an MSC containing an identical provision.
Accordingly, it appears that the parties attempted to contractually prevent a

Id.; see Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 (5th Cir. 1988).
Melancon, 834 F.2d at 1245 (“Melancon’s work assisted Amoco in the production of
hydrocarbons by maintaining the production equipment and platforms in the Amoco field.”).
9
17
18

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.” 19 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.” 20
In addition, Defendants point out another provision of the MSCs that
required Wood Group and QPS to endorse their insurance policies to include a
borrowed servant endorsement. Defendants argue that this is proof that the
parties contemplated that Wood Group’s or QPS’s employees might become
borrowed employees of Fieldwood. In light of the foregoing, there are material
issues of fact as to the agreement or understanding between Fieldwood and
Wood Group and Fieldwood and QPS.
D. Acquiescence
“The focus of this factor is whether the employee was aware of his work
conditions and chose to continue working in them.” 21 Each of the employees
worked aboard the WD 80-D for several months prior to Mosley’s accident and
nothing suggests that they did not acquiesce to their working situations. A few
months is a sufficient amount of time to appreciate and acquiesce in one’s
working conditions. 22 This factor weighs in favor of a borrowed employee
finding.
Id.
Billizon v. Conoco, Inc., 993 F.2d 104, 106 (5th Cir. 1993).
21 Brown, 984 F.2d at 678.
22 See id.; Magnon v. Forest Oil Corp., No. 06-0587, 2007 WL 2736612, at *5 (W.D. La.
Sept. 18, 2007) (“Four months is a reasonable period of time to observe the living and working
conditions to which plaintiff would be exposed.”).
10
19
20

E. Termination of Relationship
“It is well-settled [that] a finding of borrowed employee status does not
require that the lending employer completely sever its relation with the
employee. The focus, instead, is on the lending employer’s relationship with
the employee while the borrowing occurs.” 23 Defendants argues that Wood
Group and QPS terminated their relationship with Villemarette, Mosley, and
Trahan because they had little contact with the employees during their time
on the platform. Plaintiff offers no evidence disputing this fact or showing a
supervisory relationship between Wood Group/QPS and Villemarette, Mosley,
or Trahan. Accordingly, this factor weighs in favor of a borrowed employee
finding.
F. Tools and Place
Defendants argue that Fieldwood provided both the tools and place of
performance, including vessel and helicopter transportation to the platform,
food, accommodations, equipment, tools, and supplies.

The only tools not

provided by Fieldwood were Villemarette’s personal protective gear and a few
of Mosley’s hand tools and a uniform.

Mosley testified that if he needed

additional parts to make repairs, Fieldwood provided them. Accordingly, this
factor weighs in favor of a borrowed employee finding.
G. Length of Employment
At the time of Mosley’s accident, each of the employees had been working
for Fieldwood for at least four months. “Where the length of employment is
considerable, this factor supports a finding that the employee is a borrowed

23

Robertson v. W & T Offshore, Inc., 712 F. Supp. 2d 515, 532 (W.D. La. 2010).
11

employee.” 24 Courts have found this factor to be neutral where the length of
employment was four months. 25
H. Right to Discharge
The parties agree that Fieldwood had the right to have each employee
removed from its platform. Plaintiff argues, however, that Fieldwood did not
have the right to fire the employees from their positions with Wood Group or
QPS. “[W]here the borrowing employer . . . has the right to terminate the
borrowed employee’s services with the borrowing employer, even though the
borrowing employer does not have the right to terminate the borrowed
employee’s position with the nominal employer . . . , the right to discharge
factor is satisfied.” 26

Accordingly, because Fieldwood could remove

Villemarette, Mosley, or Trahan from their positions on its platform, this factor
weighs in favor of a borrowed employee finding.
I. Obligation to Pay
The Fifth Circuit has held that the determinative inquiry for this factor
is which party furnishes the funds used to pay the employee. 27 Wood Group
and QPS were responsible for paying Villemarette, Trahan, and Mosley,
respectively, based on the number of hours that were approved by Fieldwood.
Wood Group or QPS then billed Fieldwood for that amount, and therefore

Id.
Billizon, 993 F.2d at 106; Vincent v. Fieldwood Energy, L.L.C., No. 14-2885, 2015
WL 6758269, at *5 (E.D. La. Nov. 5, 2015) (“Here, Vincent worked for Fieldwood for four
months. The Court finds that this factor is neutral.”).
24
25

26
27

Robertson, 712 F. Supp. 2d at 534; see Melancon, 834 F.2d at 1246.
Melancon, 834 F.2d at 1246.
12

Fieldwood ultimately provided the funds by which each employee was paid.
Accordingly, this factor weighs in favor of a borrowed employee finding.
Despite the issue of fact regarding the MSCs, each factor weighs heavily
in favor of a finding that Villemarette, Mosley, and Trahan were the borrowed
employees of Fieldwood. Accordingly, this Court finds that the “[t]he reality at
the worksite and the parties’ actions in carrying out a contract” have impliedly
modified the provisions of the MSCs attempting to prevent a borrowed
employee finding. 28 Such a finding is appropriate here where “the remaining
factors

clearly

point

to

borrowed-employee

status.” 29

Accordingly,

Villemarette, Mosley, and Trahan are the borrowed employees of Fieldwood.
Mosley cannot therefore succeed in a negligence action against his borrowed
employer pursuant to the LHWCA, and the tort claims against Fieldwood are
dismissed.
In addition, Wood Group contends that if Trahan, Villemarette, and
Mosley are all borrowed employees of Fieldwood, then the LHWCA prohibits
Mosley from bringing an action against his co-employees Trahan or
Villemarette. 30 It argues that he is therefore also barred from bringing a claim
of vicarious liability against Wood Group for their negligence. 31

Indeed,

“[Plaintiff] cannot assert against [his co-employee’s nominal employer], his
non-existent right against [his co-employee].” 32 Plaintiff’s claims against Wood
Group for the vicarious liability of Villemarette and Trahan are dismissed.
Id.
Billizon, 993 F.2d at 106.
30 33 U.S.C. § 933(i).
31 Wood Group also argues that it cannot be vicariously liable for Villemarette and
Trahan if they are the borrowed employees of Fieldwood.
32 Perron v. Bell Maint. & Fabricators, Inc., 970 F.2d 1409, 1413 (5th Cir. 1992).
13
28
29

II.

Linear Control’s Motion for Summary Judgment

Finally, Linear Controls alleges that the claims against it should be
dismissed because Plaintiff cannot show that it caused the accident. It argues
that it cannot be liable for Plaintiff’s slip and fall because (1) Trahan’s
negligence was a superseding cause, and (2) the hazard was open and obvious.
This Court finds Linear Controls’ first argument compelling.

As Linear

Controls argues, even if it acted negligently, Trahan’s negligence in opening
the spigot and letting fluid pour onto the deck was a separate, independent,
intervening act.
Indeed, the evidence shows that Plaintiff slipped in hydraulic fluid that
had leaked from a transformer that had been disconnected and moved by
Linear Controls the day before. The transformer was not leaking before the
move but began leaking at some point either during or after the move. The
leak was initially contained by a bucket. Thereafter, Trahan opened the spigot
on the transformer and allowed hydraulic fluid to run out onto the deck. He
then attempted to wash it into a sump drain with a water hose. Trahan was
reprimanded and instructed to clean the area with soap. The next morning,
Plaintiff slipped and fell while walking through the area. Plaintiff testified at
his deposition that the first time he saw fluid on the deck was after Trahan
had opened the spigot.

Although he suggests in his opposition to Linear

Controls’ motion that Trahan “did not necessarily introduce all of the oil to the
deck.” He does not provide any evidence suggesting that there was oil on the
deck prior to Trahan opening the spigot.

14

“An intervening cause is one which comes into play after the defendant’s
negligent conduct has ceased, but before the plaintiff suffers injury.” 33 Unless
the intervening cause was foreseeable, it “will relieve the original tortfeasor of
liability if it superceded the original negligence and alone produced the
injury.” 34

Here, even if Linear Controls was negligent in causing the

transformer to leak, Mosley would not have been injured without Trahan’s
intervening negligence. Linear Controls certainly could not have foreseen that
someone would remove the bucket and allow hydraulic fluid to leak on to the
deck. Accordingly, Plaintiff cannot succeed on his claim of negligence against
Linear Controls.
CONCLUSION
For the foregoing reasons, the Motion are GRANTED, and Plaintiff’s
claims against all defendants are DISMISSED WITH PREJUDICE.
Defendants are entitled to judgment in their favor.
New Orleans, Louisiana this 3rd day of October, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

33
34

Vince v. Koontz, 213 So. 3d 448, 457 (La. App. 5 Cir. 2017).
Jones v. Centerpoint Energy Entex, 66 So. 3d 539, 549–50 (La. App. 3 Cir. 2011).
15