Lacombe v. Duke Transportation, Inc.

449 So. 2d 708, 1984 La. App. LEXIS 8569
CourtLouisiana Court of Appeal
DecidedApril 11, 1984
DocketNo. 83-572
StatusPublished
Cited by1 cases

This text of 449 So. 2d 708 (Lacombe v. Duke Transportation, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lacombe v. Duke Transportation, Inc., 449 So. 2d 708, 1984 La. App. LEXIS 8569 (La. Ct. App. 1984).

Opinion

CULPEPPER, Judge Pro Tem.

Plaintiff, Dennis Lacombe, an oil rig worker for Cliff’s Drilling Company (Cliff’s), instituted suit against Duke Transportation, Inc. and Duke Equipment Company, Inc. (Duke), defendant, seeking damages for personal injuries allegedly caused by the negligent operation of a crane by defendant’s employee, Donald Guillory. Duke filed a third party demand against Hicks, alleging that the crane operator was a “borrowed employee” of Hicks who is vicariously liable. The trial court dismissed Duke’s third party demand on Hicks’ motion for summary judgment. Duke appeals, contending that there exists a genuine issue of material fact relative to the crane operator’s status as a “borrowed servant.” Finding that there are issues of material fact as to the crane operator’s status as a “borrowed employee,” we reverse and reinstate Duke’s third party demand.

FACTS

As shown by the pleadings, depositions and affidavits considered in deciding the motion for summary judgment, the facts are as follows. After completing drilling operations at rig # 30, Cliff’s contacted Hicks to secure two 60-ton cranes and operators to dismantle the rig. Hicks had only one crane available and contacted a competitor, Duke, to secure a second. Duke agreed to supply the crane and an operator at a rate of $100 per hour. This amount was paid by Cliff’s to Hicks, who in turn paid Duke, who paid its operator. Duke’s employee, Donald Guillory, was assigned to operate the crane. The crane and operator were sent directly from Duke to Cliff’s jobsite.

After the crane was assembled by Guillo-ry, he was instructed by Cliffs toolpushers and drillers to begin disassembling the rig. The Hicks’ crane was performing in the same manner. The Duke crane was used to hold up portions of the derrick A-frame, while Hicks’ crew removed each part of the rig. During this process, crane operator Guillory moved a spreader beam on the rig in such a manner that a leg of the rig dislodged and fell to the ground. Because of plaintiff’s position, he was forced to “ride” the dislodged leg to the ground, thereby injuring his leg.

Plaintiff brought suit against Duke and its insurer on the theory that, as employer, Duke is vicariously liable for harm resulting from an employee’s negligence. Duke [710]*710subsequently brought a third party demand against Hicks alleging that the crane operator became Hicks’ “borrowed, special and/or joint employee” making Hicks vicariously liable for the crane operator’s negligence.

The trial court held that there existed no genuine issue of material fact as to the “borrowed employee” status of the crane operator and granted Hicks’ motion for summary judgment dismissing Duke’s third party demand.

In their briefs, counsel state that after the court granted Hicks’ motion for summary judgment dismissing Duke’s third party demand against Hicks, Duke settled with the plaintiff. The only remaining dispute in this suit is Duke’s third party demand against Hicks.

ISSUE

The sole issue is whether there exists a genuine issue of material fact as to Duke’s contention that the crane operator became Hicks’ “borrowed employee.”

SUMMARY JUDGMENT

Pursuant to LSA-C.C.P. art. 966, a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Any doubt must be resolved against the motion and in favor of a trial on the merits. LSA-C.C.P. art. 966; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976).

The issue of whether or not an individual is a “borrowed employee” is a question of fact. The most commonly employed test utilized by the courts in making this factual determination is the “right of control” test. Additionally, the concept of the “borrowed employee” doctrine connotes an agreement of some type between the lender and borrower as to relinquishment of control of the employee to the borrower. In LeBlanc v. Roy Young, Inc., 308 So.2d 443 (La.App. 3rd Cir.1975), a case also involving a crane operator, we stated the rule as follows:

“[3,4] As pointed out by this court in Kezerle v. Hardware Mutual Casualty Co., 198 So.2d 119 (La.App. 3rd Cir.1967), writ refused 250 La. 918, 199 So.2d 921 (1967):

“In these cases the courts have consistently held that there is a presumption that the general employer is responsible in damages for the torts of his employee. If the general employer seeks to avoid liability on the ground that his employee is the ‘borrowed servant’ of another, then the burden of proof rests upon the general employer (...) to show that as to the particular work in question the servant has been loaned, that the relationship of master and servant which theretofore existed between the general employer and employee has been suspended, that a new relationship of master and servant has been created between the borrowing employer and that employee and that this new relationship was in existence at the time the accident occurred.
A test which has been applied consistently in determining whether a person is a borrowed servant is to ascertain who controls him in that employment, and who has the power and right to control. and direct him in the performance of his work. In order to establish that the employee is the borrowed servant of another, we think it is essential for the general employer to establish, among other necessary elements of proof, that the borrowing employer exercises control over the employee and has the right to control him, that the general employer has relinquished the right to control him, and that the employee is performing work for the borrowing employer and in the latter’s business.”

At the hearing on the motion for summary judgment, Duke introduced into the record one document, the affidavit of Douglas D. Wilson, general manager of [711]*711Duke. Hicks introduced the affidavit of Ron Carriere, its general manager, and also six depositions, including those of the crane operator, Donald Guillory, Cliffs foreman and toolpushers, and roughnecks on the job. The district judge gave no written reasons, but he was apparently convinced by this evidence that either Duke, the general employer, retained control over Guillory, or that Cliffs had the right of control and actually exercised control, through its foreman and toolpusher, over Guillory, during the dismantling of the rig.

On appeal, Duke argues persuasively that the affidavit of its general manager, Doug Wilson, alone shows there is a genuine issue of material fact. Wilson states in his affidavit:

“During the time from December 4th-6th, Hicks Construction Company leased a Link Belt Crane from Duke Equipment Company. This crane was rented by Hicks Construction Company at an hourly rate of $100.00 per hour. An operator, Donald Guillory, was provided with the crane at no extra hourly charge.

The verbal lease -agreement between Hicks Construction and Duke contained no instructions, restrictions or qualifications as to the work which the crane would be performing. The crane was to be used in what ever manner and to perform what ever work Hicks, in its discretion, decided to do. The crane operator, Donald Guillo-ry, had, at the time of the leasing of the crane, “no other supervisor other than Hicks.

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Related

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501 So. 2d 911 (Louisiana Court of Appeal, 1987)

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449 So. 2d 708, 1984 La. App. LEXIS 8569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lacombe-v-duke-transportation-inc-lactapp-1984.