Gennuso v. Apache Corp et al
MEMORANDUM RULING re 71 MOTION for Summary Judgment filed by Apache Corp. IT IS ORDERED that Apache's motion for summary judgment is GRANTED, and the plaintiffs claims against Apache are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the oral argument on Apache's motion, which was previously scheduled for 6/15/2017, is CANCELED. Signed by Magistrate Judge Patrick J Hanna on 5/12/2017. (crt,Alexander, E)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
DONALD JOSEPH GENNUSO
CIVIL ACTION NO. 6:15-CV-02378
MAGISTRATE JUDGE HANNA
APACHE CORPORATION, ET AL.
BY CONSENT OF THE PARTIES
Currently pending is defendant Apache Corporation’s motion for summary
judgment. (Rec. Doc. 71). The motion is opposed. Considering the evidence, the
law, and the arguments of the parties, and for the reasons fully explained below, this
Court grants Apache’s motion and dismisses the plaintiff’s claims against Apache
The following facts are undisputed. This case arises out of an incident that
allegedly occurred in May 2015 aboard a fixed SPAR oil and gas production platform
known as Devil’s Tower, which is located on the Outer Continental Shelf off the
coast of Louisiana. Devil’s Tower has no means of propulsion and is connected to
the seabed by a mooring system consisting of chains, cables, and piles or caissons
embedded into the ocean floor. Defendant Williams Field Services, LLC is the owner
of the Devil’s Tower platform, and defendant Eni US Operating Co. Inc. was the
operator of Devil’s Tower at all relevant times. Apache is the owner of a well that
was tied into Devil’s Tower by pipeline.
In July 2005, Apache and defendant Stella Maris, LLC entered into a Master
Service Contract, under which Apache hired Stella Maris to perform certain work or
render certain services as set forth in separate job orders. Under Section 7 of the
contract, Stella Maris was designated as an independent contractor not subject to the
control or direction of Apache. While Stella Maris controlled the manner and
methods by which it performed its work under the contract, Apache was only
interested in the compliance of the work with the job order.
In August 2012, Apache and Greene’s Energy Group, the plaintiff’s employer,
entered into a Master Service Contract. Under Section 2 of the contract, Apache
hired Greene’s to perform certain work to support Apache’s “onshore and offshore
exploration and production business,” as provided in subsequent job orders. Section
8 of the contract specified that Greene’s “shall be, and perform at all times as, an
independent contractor.” Greene’s was not subject to the control or direction of
Apache as to the details of the work performed by Greene’s. Apache was only
interested in whether the work performed by Greene’s complied with the job order.
In the spring of 2015, Apache hired Greene’s to flush out the Bass Lite pipeline
from the Devil’s Tower platform and prepare it to be plugged and abandoned. It was
up to Greene’s to determine what personnel and equipment were needed to do the job.
Greene’s was responsible for rigging up and rigging down its equipment under the
supervision of a Greene’s employee who directed the Greene’s crew. Greene’s sent
a crew of five employees, including Mr. Gennuso, to Devil’s Tower to perform the
flushing operation. The crew’s supervisor was a Greene’s employee, Matthew
Breaux, and Mr. Breaux had ultimate supervisory control over Mr. Gennuso’s work.
The Greene’s crew arrived at Devil’s Tower on May 6, 2015. Utilizing the
cranes aboard Devil’s Tower, the Greene’s equipment was offloaded, and the next
day the crew rigged up. Mr. Gennuso claims that he was injured on May 7, 2015, as
the crew was rigging up their equipment. Mr. Gennuso worked on the night shift.
His supervisor on the night shift was Greene’s employee Beau Cluse. Matt Breaux
who was the overall supervisor of the Greene’s employees, only worked the day shift.
Stella Maris employee Brian Ray worked a swing shift, covering some part of both
the day shift and the night shift.
Mr. Gennuso claims that, on his first evening shift while rigging up, he and Mr.
Cluse were at a location on the platform where they were attempting to tie in their
equipment to a “tree” so that chemicals could be pumped through the Bass Lite
pipeline. The plan was for Mr. Gennuso to lift an L-shaped connecting joint of pipe
called a “90,” and for Mr. Cluse to screw a longer length of pipe into the 90. As Mr.
Gennuso lifted the 90, however, he claims that Mr. Cluse was not ready to screw the
other pipe to it. The 90 slipped a little and Mr. Gennuso had to push harder to hold
the 90 up longer than he expected. In the process of this task, he felt a pop in his
back. Although he does not know how much the 90 weighed, Mr. Gennuso’s
contention is that the 90 was heavy and should have been lifted by a crane rather than
It is undisputed that there were cranes aboard the platform available for use by
the Greene’s crew. However, other contractors aboard the platform were also
utilizing the cranes as simultaneous operations (“SIMOPS”) were ongoing.
Therefore, if the crane was in use by some other contractor, the Greene’s crew would
have to simply wait on its availability. There is no evidence in this record that, while
the 90 was being connected by the Greene’s crew, the Greene’s crew asked for and
was refused access to a crane.
Apache did not have any employees on the platform at any time during the
flushing project, and Apache did not exercise any control over the details of the work
performed by Greene’s. The crew from Greene’s performed the work while Brian
Ray, a Stella Maris employee, verified that the job was completed to the appropriate
specifications. There is no evidence in the record that Apache directed the Greene’s
crew to move any 90 by hand, or that Apache was even aware that the operation was
being undertaken in that manner at the time. There is no evidence that anybody from
Apache gave any instructions in rigging up or moving the equipment. In addition,
there is no evidence in this record that Greene’s was told by anyone with Apache that
Greene’s could not use the crane. On the contrary, the testimony submitted is
consistent that Apache did not prevent the Greene’s crew from using the crane at any
THE SUMMARY JUDGMENT STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment
is appropriate when there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the lawsuit under the
applicable governing law.1 A genuine issue of material fact exists if a reasonable jury
could render a verdict for the nonmoving party.2
The party seeking summary judgment has the initial responsibility of informing
the court of the basis for its motion and identifying those parts of the record that
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Sossamon v. Lone Star
State of Tex., 560 F.3d 316, 326 (5th Cir. 2009); Hamilton v. Segue Software, Inc., 232 F.3d 473, 477
(5th Cir. 2000).
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. at 252); Hamilton v. Segue Software, Inc., 232 F.3d at 477.
demonstrate the absence of genuine issues of material fact.3 If the moving party
carries its initial burden, the burden shifts to the nonmoving party to demonstrate the
existence of a genuine issue of a material fact.4 All facts and inferences are construed
in the light most favorable to the nonmoving party.5
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by pointing out that
there is insufficient proof concerning an essential element of the nonmoving party's
claim.6 The motion should be granted if the nonmoving party cannot produce
evidence to support an essential element of its claim.7
LOUISIANA LAW GOVERNS THE CLAIMS AGAINST APACHE
Jurisdiction in this case is premised on the jurisdictional provision of the Outer
Continental Shelf Lands Act (“OCSLA”).8 As set forth in this Court’s memorandum
Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).
Washburn v. Harvey, 504 F.3d at 508.
Brumfield v. Hollins, 551 F.3d at 326 (citing Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986)).
Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520
F.3d 409, 412 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. at 325).
Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005).
43 U.S.C. §1349.
ruling on the motion for summary judgment concerning the applicable substantive
law, pursuant to OCSLA, the law of Louisiana, as the adjacent state, governs the
plaintiff’s claims against Apache as the controversy arises on a situs covered by the
OCSLA, maritime law does not apply of its own force, and Louisiana law is not
inconsistent with federal law.9
Under Louisiana law, a principal is not liable for the offenses of an
independent contractor in performing its contractual duties unless the independent
contractor is performing ultrahazardous activities, or if the principal exercises
operational control over the work performed by the independent contractor.10
THERE IS NO EVIDENCE THAT APACHE EXERCISED OPERATIONAL CONTROL
OVER THE I NDEPENDENT C ONTRACTORS NOR WAS A PACHE
There is no allegation that any of the work being performed by Greene’s was
ultrahazardous; therefore, in order for Apache to be liable either for the allegedly
negligent actions of Greene’s or Stella Maris, the plaintiff must show that Apache
exercised operational control over the work they performed.
testimony is consistent that Apache did not exercise such control, and the contracts
43 U.S.C. 1333(a); Union Texas Petroleum v. PLT Engineering, Inc., 895 F.2d 1043,
1047 (5th Cir. 1990).
Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 549-550 (5th Cir. 1987).
specifically indicate that Apache did not intend to do so. Therefore, assuming for the
sake of argument that either Greene’s or Stella Maris were negligent, the plaintiff has
failed to meet his burden to show that a genuine issue of fact exists that there was a
degree of control exercised by Apache such that Apache would be liable for that
The plaintiff contends in opposition that Apache had independent negligence
that would render it liable to the plaintiff. Specifically, the plaintiff contends that
Apache “knowingly plac[ed] plaintiff and his co-workers in a hazardous work
environment [and] Apache’s on site contract company man, Brian Ray, warned
Apache that conditions aboard the Devil’s Tower were chaotic.” The plaintiff further
contends that Apache “knew or should have known that Greene’s would have limited
access to the platform’s cranes.” These contentions have no merit.
There were no Apache employees on the platform at any time; therefore, there
is no evidence that Apache had any knowledge of “dangers” faced by the plaintiff
when the Greene’s crew was rigging up its equipment. Rather, the uncontroverted
evidence is that Apache was not there and did not prevent the Greene’s crew from
utilizing the crane at any time.
The plaintiff argues that Apache should have chosen another time for Greene’s
to flush the Bass Lite pipeline when the conditions aboard the Devil’s Tower were
less crowded and that “Apache negligently placed the Greene’s crew on the Devil’s
Tower in conditions Apache’s management knew might not allow Greene’s to safely
perform their work.” There is no competent evidence to support such an assertion.
The undisputed facts are that this alleged accident occurred during the rigging up
process before the job began, and the job proceeded until the line hydrated and the
procedure could not be concluded. The Greene’s crew then rigged down and left the
platform. There is no evidence that conditions on the platform rendered the work
done by the Greene’s crew inherently unsafe.
Further, the assertion that a dedicated crane operator specifically for use by
Greene’s personnel was to be available is not supported by competent summary
judgment evidence and ignores the reality of the work environment. The platform
personnel included a crane operator who was available for use by all of the
contractors. Greene’s had access to the crane and its operator, but the practicality of
SIMOPS was that Greene’s may have had to wait its turn to use the crane if the crane
was engaged in other operations. The decision to wait or not was not made or
authorized by anyone with Apache, and there is no evidence that Apache had any
knowledge of the conditions as they existed at the time of the plaintiff’s accident.
The plaintiff has failed to meet his burden of showing that there was any duty
owed to the plaintiff in the context of this case that Apache somehow breached.
Therefore, Apache is entitled to judgment as a matter of law and the plaintiff’s claims
against it will be dismissed with prejudice.
The plaintiff was employed by an independent contractor of Apache. The
company representative was also employed by an independent contractor of Apache.
The evidence is uncontroverted that Apache had no control over the details of the
work performed by either of them. As the work was not ultrahazardous, Apache is
not liable for any alleged negligence by Greene’s or Stella Maris.
There is no evidence that Apache had any knowledge of the decision not to
wait to utilize the crane before manually lifting the pipe joints called 90s in the
rigging up process. Likewise, there is no evidence that Apache in any way authorized
or directed the Greene’s crew not to utilize the crane or that Apache in any way
prevented Greene’s from utilizing the crane.
Therefore, the plaintiff failed to show that there is a genuine issue for trial
concerning Apache’s potential liability for the plaintiff’s claimed accident and
resulting injury. Accordingly,
IT IS ORDERED that Apache’s motion for summary judgment (Rec. Doc. 71)
is GRANTED, and the plaintiff’s claims against Apache are DISMISSED WITH
IT IS FURTHER ORDERED that the oral argument on Apache’s motion,
which was previously scheduled for June 15, 2017, is CANCELED.
Signed at Lafayette, Louisiana on this 12th day of May 2017.
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE
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