Guidry et al v. Chevron U S A Inc

Filing 98

Memorandum Ruling and Judgment granting 81 Motion for Summary Judgment filed by Danos & Curole Marine Contractors, L.L.C.Signed by Judge Tucker L Melancon on August 18, 2011. (crt,Bacon, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Guidry, et al

Civil Action No. 6:10-cv-0868

versus

Judge Tucker L. Melançon

Chevron U.S.A., Inc.

Magistrate Judge Patrick J. Hanna
MEMORANDUM RULING

Before the Court is a “Motion For Summary Judgment By Danos & Curole Marine
Contractors, L.L.C. On Borrowed Servant Status” (hereinafter “Danos & Curole”) [Rec. Doc.
81], a Memorandum in Opposition filed by plaintiffs [Rec. Doc. 87], Danos & Curole’s
Reply thereto [Rec. Doc. 90] and a “Response” filed by Chevron U.S.A., Inc. [Rec. Doc. 91].
For the following reasons, the motion will be granted.
Background
Branden Guidry, alleges he was injured on November 19, 2009 while working on a
Chevron platform located in Eugene Island 24A (“Platform”) when he stepped on a drain
cover which collapsed and caused him to fall, resulting in injuries to his low back and his
knee. R. 1, Complaint; R. 68, Exh. A, pp. 1-2. Plaintiffs filed this action against Chevron on
May 27, 2010 pursuant to the Outer Continental Shelf Lands Act and General Maritime
jurisdiction alleging that Chevron’s negligence, in its capacity as the platform owner, caused
Guidry to suffer severe injuries and damages including lost wages, lost earning capacity, pain
and suffering (physical and emotional), past and future medical expenses. R. 1, ¶ 5. At the
time of the alleged accident, Chevron operations specialists, Gerald Dupre and William
Thornton, were the supervisors onboard the Platform working opposite shifts from one
another and were the senior-most persons onboard the Platform. R. 81, Exh. B, Depo. Of
Dupre, pp. 7-8. Each Chevron supervisor worked with an operator, which in William
Thornton’s case was Chevron employee Malcolm Davis. Id., pp. 16, 78-79. The operator

on Gerald Dupre’s shift was Marshall Mitchell, a contract production operator and payroll
employee of Danos & Curole. R. 81. On March 15, 2011, plaintiffs filed their Second
Supplemental and Amending Complaint adding Danos & Curole as an additional defendant
alleging that Mitchell was responsible for Guidry’s alleged accident and that Danos & Curole
was vicariously liable for Mitchell’s actions. R. 38, III 4D - V 11. On July 13, 2011, Danos
& Curole filed this Motion for Summary Judgment contending that Mitchell was the
borrowed employee of Chevron at the time of the alleged accident. R. 81.
II. Summary Judgment Standard
A motion for summary judgment shall be granted if the pleadings, depositions and
affidavits show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Little v. Liquid Air
Corp., 37 F.3d 1069 (5th Cir.1994)(en banc). Initially, the party moving for summary
judgment must demonstrate the absence of any genuine issues of material fact. When a party
seeking summary judgment bears the burden of proof at trial, it must come forward with
evidence which would entitle it to a directed verdict if such evidence were uncontroverted
at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). As to issues which the nonmoving party has the burden of proof at trial, the moving party may satisfy this burden by
demonstrating the absence of evidence supporting the non-moving party’s claim. Id. If the
moving party fails to carry this burden, his motion must be denied. If he succeeds, however,
the burden shifts to the non-moving party to show that there is a genuine issue for trial.1 Id.

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Where the nonmoving party has the burden of proof at trial, the moving party does not
have to produce evidence which would negate the existence of material facts. It meets its burden by
simply pointing out the absence of evidence supporting the non-moving party's case. Celotex
Corp., 477 U.S. at 325. To oppose the summary judgment motion successfully, the non-moving
party must then be able to establish elements essential to its case on which it will bear the burden
of proof at trial. A complete failure of proof by the non-moving party of these essential elements
renders all other facts immaterial. Id. at 322.
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at 322-23.
Once the burden shifts to the respondent, he must direct the attention of the court to
evidence in the record and set forth specific facts sufficient to establish that there is a genuine
issue of material fact requiring a trial. Celotex Corp., 477 U.S. at 324; Fed.R.Civ.Pro. 56(c).
The responding party may not rest on mere allegations or denials of the adverse party’s
pleadings as a means of establishing a genuine issue worthy of trial, but must demonstrate
by affidavit or other admissible evidence that there are genuine issues of material fact or law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Adickes v. S.H. Kress & Co.,
398 U.S. 144. 159 (1970); Little, 37 F.3d at 1075. There must be sufficient evidence favoring
the non-moving party to support a verdict for that party. Anderson, 477 U.S. at 249; Wood
v. Houston Belt & Terminal Ry., 958 F.2d 95, 97 (5th Cir.1992). There is no genuine issue
of material fact if, viewing the evidence in the light most favorable to the non-moving party,
no reasonable trier of fact could find for the non-moving party. Lavespere v. Niagara Mach.
& Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990).
If no issue of fact is presented and if the mover is entitled to judgment as a matter of
law, the court is required to render the judgment prayed for. Fed. R. Civ. P. 56(a); Celotex
Corp., 477 U.S. at 322. Before it can find that there are no genuine issues of material fact,
however, the court must be satisfied that no reasonable trier of fact could have found for the
non-moving party. Id.
III. Analysis
Danos & Curole moves the Court for summary judgment on the basis that its payroll
employee, Marshall Mitchell, the Platform production operator at the time of the alleged
accident was the borrowed employee of Chevron. Id. While plaintiffs argue that a genuine
issue of material fact exists as to whether or not Mitchell was Chevron’s borrowed employee,

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the majority of plaintiff’s opposition memorandum includes their contention that even if
Mitchell is a borrowed servant of Chevron, Danos & Curole could still be held liable for
Mitchell’s actions under the “dual employer” doctrine. The Court will address these issues
in turn.
1. Borrowed Employee Doctrine
Under the borrowed employee doctrine, a general employer may be relieved of
vicarious liability for an employee’s negligent actions if the employee was “borrowed”; i.e.,
if at the time of the negligent action the employee was under the control of a specific
employer, or was engaged in the specific employer’s business. Boston Old Colony Ins. Co.
v. Tiner Associates Inc., 288 F.3d 222, 228 -229 (5 th Cir. 2002) (citing Benoit v. Hunt Tool
Co., 219 La. 380, 53 So.2d 137, 140 (1951)). “The question of borrowed-employee status is
a question of law for the district court to determine.” Lemaire v. Danos & Curole Marine
Contractors Inc., 265 F.3d 1059 (5 th Cir. 2001) (unpublished) (quoting Billizon v. Conoco,
Inc., 993 F.2d 104, 105 (5th Cir.1993)). In Ruiz v. Shell Oil Co., 413 F.2d 310, 312 (5 th Cir.
1969), the Fifth Circuit identified a nine factor test as a guide for determining borrowed
employee status in the content of the Longshore and Harbor Workers’ Compensation Act
(LHWCA). To determine borrowed employee status, the following nine factors must be
considered:
(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?

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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?
Brown v. Union Oil Co. of California, 984 F.2d 674, 676 (5 th Cir. 1993)(citing Ruiz, 413 F.2d
at 310). “No single factor, or combination of them is determinative” of borrowed employee
status. Id. at 677.
Danos &Curole assert that each of these nine factors support the finding that Mitchell
was the borrowed servant of Chevron. R. 81. Plaintiffs do not address nor dispute Danos
& Curole’s assertions related to factors one through seven or factor nine. Plaintiffs argue,
however, that a genuine issue of material fact exists as to whether Chevon had the right to
discharge Mitchell - the eighth Ruiz factor.
In support of its position that Chevron had the right to terminate Mitchell from
employment, Danos & Curole cite the deposition of Gerald Dupre, Chevron’s operator
specialist and Mitchell’s supervisor on the Platform in which Dupre stated that Chevron
could “fire” Mitchell. R. 81-5, Exh. B, Depo. of Dupre, p. 83-85 Plaintiffs argue that
Dupre’s deposition testimony is unclear as to whether Chevron had the authority to terminate
Mitchell’s employment with Danos & Curole or only remove him from Chevron’s facilities.
The jurisprudence in the Fifth Circuit is well-established that the proper focus when
considering who has the right to discharge the borrowed employee is not whether the
borrower can terminate the borrowed employee’s employment with his employer, but
whether the borrower has the right to terminate the borrowed employee’s services with itself.
Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d 615, 618 (5 th Cir. 1986); Melancon v.
Amoco Prod. Co., 834 F.2d 1238, 1246 (5 th Cir.1988). Thus, whether Chevron had the

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authority to terminate Mitchell’s employment with Danos & Curole is irrelevant to the
determination of this factor. As the record establishes, and plaintiffs do not dispute, Danos
& Curole had the authority to dismiss or remove Mitchell from Chevron’s Platform.
Therefore, factor eight favors borrowed servant.2
Citing Morgan v. ABC Manufacturer, 710 So.2d 1077 (La.1998), plaintiffs further
assert that because questions of material fact remain as to whether the dual employer doctrine
applies in this case, Danos & Curole cannot seek a determination that they are immune from
tort liability for Mitchell’s actions. R. 81. Danos & Curole argue that, contrary to plaintiffs’
contention, they do “not seek any determination as to the relative liability of itself and/or
Chevron in the event any fault is found the actions/inactions of Marshall Mitchell,” and
therefore, the dual employer doctrine is not before the Court. R. 90. The Court agrees.
The Firth Circuit addressed the dual employer doctrine in Boston Old Colony Ins. Co.
v. Tiner Associates Inc., 288 F.3d 222 (5 th Cir. 2002):
The borrowed servant doctrine has been modified somewhat by the dual
employer doctrine, according to which both the special and general employer
may be found jointly liable for the torts of a borrowed employee, in
circumstances where the employee’s negligent acts were done in the pursuance
of duties designated for him by his [general] employer, in whose pay he
continued and who had the sole right to discharge him. LeJeune v. Allstate Ins.
Co., 365 So.2d 471, 481 (La.1978). In addition, where a general employer is
engaged in the business of hiring out its employees under the supervision of
another employer, the general employer remains liable for the torts of the
borrowed employees. Morgan v. ABC Manufacturer, 710 So.2d 1077
(La.1998). Thus, in Morgan the Louisiana Supreme Court held that a

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Chevron filed a “Response” to Danos & Curole’s motion stating that “Mitchell
would qualify as its borrowed servant under the Ruiz nine-factor test” and supplementing
the record “to clarify the deposition testimony of Mr. Dupre concerning Chevron’s
authority or right to terminate Mr. Mitchell’s work on Chevron’s facilities.” Id. In the
Unsworn Declaration Of Gerald Dupre attached to the Response, Dupre states that in
answering counsel’s deposition questions related to Chevron’s right to terminate Mitchell
he was “referring to Chevron’s authority or right to dismiss or remove Mr. Mitchell from
Chevron’s Eugene Island facilities” and that “Chevron did not and does not have
authority or right to fire Mitchell from his employment with Danos & Carole.” R. 91-2.
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temporary services agency, which had the exclusive power to recruit, hire, and
fire employees and handled administrative duties related to the employees for
a specific employer, was a dual employer and was vicariously liable for the
employees’ torts. Id. at 1084. Neither LeJeune nor Morgan abrogated the
borrowed employee doctrine; they simply limited its scope so that it would not
apply in cases where the general employer retains control over the employee
at the time of the negligent action, such that it can be characterized as a dual
employer.
Id. at 229. Here, the Motion requires no determination by the Court that the dual employee
doctrine applies as Danos & Curole has not moved the Court to be dismissed from this action
nor raised any issue related to the liability of itself or Chevron.
IV. Conclusion
As the Court finds that Marshall Mitchell was Chevron’s borrowed employee on the
date of the alleged accident, Danos & Curole’s motion for summary judgment will be
granted.

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Guidry, et al

Civil Action No. 6:10-cv-0868

versus

Judge Tucker L. Melançon

Chevron U.S.A., Inc.

Magistrate Judge Patrick J. Hanna
JUDGMENT

In accordance with the Memorandum Ruling issued on this date, it is therefore
ORDERED that the Motion For Summary Judgment filed by Danos & Curole Marine

Contractors, L.L.C. [Rec. Doc. 81] is GRANTED.
Thus done and signed this 18 th day of August, 2011 at Lafayette, Louisiana.