Lemaire v. Danos & Curole

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 13, 2001
• Docket: 00-31153
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit _______________________________________

No. 00-31153 SUMMARY CALENDAR _______________________________________

SHAWN LEMAIRE, Individually and as tutor on behalf of Lemaire; MISTY T. LEMAIRE

Plaintiffs–Appellants

v.

DANOS & CUROLE MARINE CONTRACTORS INC; ET AL

Defendants

DANOS & CUROLE MARINE CONTRACTORS INC; CHARLES PHILLIPS

Defendants–Appellees.

______________________________________________________

On Appeal from the United States District Court for the Western District of Louisiana (98-CV-51) ______________________________________________________ July 10, 2001

Before REYNALDO G. GARZA, DAVIS, and DENNIS, Circuit Judges.

PER CURIAM:1

This dispute arises out of an accident that occurred on a

production platform owned by Texaco, Inc. (“Texaco”) off the

coast of Louisiana2. Shawn Lemaire was disassembling a valve

1 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 2 It is undisputed that the accident occurred more than three miles off the coast of Louisiana on the outer-continental shelf.

-1- when the top of the valve blew off and struck Lemaire in the

head. Lemaire asserts he suffered a skull fracture, two

lacerations, a severed nerve, severe headaches, dizziness, and

nerve problems. Lemaire brought suit against another man who was

working on the platform, Charles Phillips, & Phillip’s employer

Danos & Curole Marine Contractors under the Outer Continental

Lands Shelf Act, 43 U.S.C. § 1331, et seq. Phillips moved for

summary judgment on the ground that he and Lemaire are co-

employees, and, therefore, he is immune from suit by a co-

employee under the Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. § 901, et seq. Danos & Curole Marine Contractors

moved for summary judgment on the ground that both Phillips and

Lemaire were Texaco’s borrowed employees, and, therefore, any

negligence on the part of Phillips cannot be imputed to Danos &

Curole Marine Contractors.

The district court granted the defendants’ motions for

summary judgment. Having read and considered the record and

arguments of counsel, we AFFIRM the decision of the district

court based on its memorandum opinion which is attached hereto as

Appendix A.

-2- UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE/OPELOUSAS DIVISION

SHAWN LEMAIRE, ET AL CIVIL ACTION NUMBER: 98-0051

VERSUS JUDGE DOHERTY

DANOS & CUROLE MARINE MAGISTRATE JUDGE METHVIN

MEMORANDUM RULING

Before this Court is a Motion for Summary Judgment [doc.

#37] filed on behalf of defendants, Danos & Curole Marine

Contractors, Inc. (“D&C”) and Charles Phillips (“Phillips”).

Defendants’ Motion for Summary Judgment is based upon their

contention there is no genuine issue of material fact as to

whether Shawn LeMaire (“LeMaire”) and Phillips are the borrowed

employees of Texaco, Inc. ("Texaco") and therefore, co-employees

as defined by the Longshore & Harbor Workers' Compensation Act,

33 U.S.C. § 901, et seq. ("LHWCA").

In summary, defendants, D&C and Phillips, assert that, as a

matter of law, LeMaire and Phillips are the borrowed employees of

Texaco and that LeMaire is barred from any recovery against his

co-employee, Phillips. Defendants further assert plaintiff’s

claims against defendants, D&C and Phillips, pursuant to the

Outer Continental Lands Shelf Act, 43 U.S.C. § 1331, et seq.

(“OCLSA”) and the LHWCA should be dismissed on the basis that

LeMaire and Phillips are borrowed employees of Texaco and thus,

co-employees under the LHWCA. Pursuant to the LHWCA, Phillips and Phillips’ nominal employer, D&C, would be immune from tort

liability as any negligence on Phillips' part would be imputed to

Texaco as Phillips' borrowing employer, and not to D&C, Phillips'

nominal employer.

In opposing this motion, plaintiff asserts those sections of

the LHWCA granting immunity from tort liability to co-employees

should not apply. Rather, the OCSLA, 43 U.S.C. § 1333, requires

that state law be applied regarding third party negligence or

immunity and damages. Plaintiff also asserts there are genuine

issues of material fact as to whether LeMaire and Phillips were

“borrowed employees” of Texaco. Plaintiff further asserts

genuine issues of material fact exist as to whether LeMaire was a

“co-employee” of D&C’s employee, Phillips, within the meaning of

the LHWCA, 33 U.S.C. § 901, et seq.

To rule on defendants' motion, the Court must determine

whether LeMaire and/or Phillips were the borrowed employees of

Texaco as a matter of law, and thus, co-employees of Texaco as

defined by the LHWCA.

Background

On or about December 14, 1996, Shawn LeMaire, plaintiff, was

employed by Steen Production Services, Inc. ("Steen") as a C

Operator. Plaintiff was working at a job site owned by Texaco,

Inc. ("Texaco") in the Gulf of Mexico on a fixed platform located

at West Cameron Block 643-B. LeMaire dep. pgs. 37, 74. It is

-4- undisputed that the platform is located more than three miles off

the coast of Louisiana on the outer continental shelf.

Prior to his alleged accident, LeMaire had worked

continuously in the Texaco 643 field for approximately three

months. LeMaire dep. p. 37. On the day plaintiff was allegedly

injured, LeMaire was assisting defendant Charles Phillips

("Phillips"). Phillips was an employee of defendant, Danos &

Curole Marine Contractors, Inc. ("D&C"). Phillips usually worked

the opposite shift of LeMaire. However, on this particular

shift, Phillips stayed on the platform for additional days

because another person was off. LeMaire depo. p. 94; Ardoin &

Flice depo., pps. 28-30. Prior to LeMaire's alleged accident,

Phillips had worked continuously in the Texaco 643 field for one

year. Phillips dep. pgs. 10, 41; Solar, a representative of

Steen, dep. p. 35.

On the day of the alleged accident, Phillips was removing

the last bolt from a Series 357 Control Valve when he became

tired. Plaintiff began to help Phillips remove the bolt when the

valve blew off and struck plaintiff in the head and knocked him

backwards on to the grating causing him to injure his head, neck

and back. Plaintiff asserts that as a direct result of this

accident, he sustained injuries including a skull fracture, two

lacerations requiring stitches, a severed nerve, severe

headaches, dizziness and nervous problems.

-5- It is undisputed that at the time of LeMaire's alleged

accident, both D&C and Steen were under contract with Texaco to

provide employees to operate Texaco platforms offshore and work

as directed by Texaco employees. LeMaire dep. p. 37; Solar dep.

p. 12. While on the Texaco project, LeMaire and Phillips

normally worked schedules of seven days on and seven days off.

Phillips dep. p. 37; LeMaire dep. p. 38. Texaco provided their

sleeping quarters, their meals and their transportation to and

from the job. Phillips dep. p. 36; LeMaire dep. pgs. 44-45, 55-

56, 64. Phillips' immediate supervisor was Texaco Lead Operator,

Kenneth Domingue. Phillips dep. pgs. 39-40. However, because

Phillips had agreed to work over his seven day shift on the date

of the accident, he and LeMaire were both supervised by Texaco

Lead Operator, Richard Remo Ardoin. Id.; Ardoin & Flice dep.

pgs. 24, 67-69.

Texaco employees gave LeMaire and Phillips instructions

regarding where to work and what to do. Phillips dep. p. 41;

LeMaire dep. p. 73; Ardoin & Flice dep. pgs. 55-56. Both LeMaire

and Phillips performed the work of Texaco and the evidence

provided this Court establishes the two men consented to the work

situation. Solar dep. p. 34; Ardoin & Flice dep. p. 59. Texaco

supervisors provided direct orders to and had control over

LeMaire and Phillips concerning their work duties. Phillips dep.

p. 39; LeMaire dep. p. 73; Ardoin & Flice dep. p. 55. No D&C or

-6- Steen supervisors were sent out to any of the Texaco jobs.

Phillips dep. p. 39.

LeMaire and Phillips performed Texaco's work. Ardoin &

Flice dep. pgs. 56, 62, 69. Texaco could not terminate LeMaire

or Phillips' employment with their nominal employers; however, if

Texaco was not satisfied with the work that Phillips or LeMaire

was doing, a Texaco supervisor could have either man discharged

from his position on the Texaco platform by simply calling the

offices of their “nominal” employers and mentioning that their

services were no longer needed. Phillips dep. p. 42; LeMaire

dep. p. 65; Ardoin & Flice dep. pgs. 59-62.

Law and Discussion

Pursuant to the OCSLA, 43 U.S.C. § 1331, et seq., the LHWCA,

33 U.S.C. § 901, et seq. is the law applicable to provide an

injured offshore worker compensation benefits. As the LHWCA

applies, it preempts “the application of the idiosyncrasies of

the Louisiana Workers’ Compensation scheme.” Perron v. Bell

Maintenance and Fabricators, Inc., 970 F.2d 1409, 1411 (5th Cir.

l992). However, outside of the Workers’ Compensation arena, the

OCSLA makes the tort law of the adjacent state surrogate federal

law and thus applicable to any tort-based cause of action for

those offshore injuries. See 43 U.S.C. § 1381, et seq. In other

words, were the plaintiff to have a remedy in tort against a non-

employer and thus, outside the LHWCA, this Court would apply the

-7- substantive tort law of Louisiana. However, should this

plaintiff not have a tort remedy available against defendants D&C

and Phillips for the reasons urged by D&C and Phillips, LeMaire

would be limited to LHWCA benefits as the LHWCA is the workers’

compensation scheme applicable to an offshore worker, such as the

plaintiff, who sustains a work related injury on the Outer

Continental Shelf.

D&C and Phillips argue LeMaire and Phillips are both

borrowed employees of Texaco and thus, LeMaire cannot sue his co-

employee. "The question of borrowed-employee status is a

question of law for the district court to determine." Billizon

v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir.), reh'g denied, 3

F.3d 441 (1993). However, "in some cases, factual disputes must

be resolved before the district court can make its legal

determination." Id. The Fifth Circuit has set out the following

nine (9) factors which must be considered in determining borrowed

employee status:

1. Who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation?

2. Whose work was 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?

-8- 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?

Id. (citing Brown v. Union Oil Co. of California, 984 F.2d 674,

676 (5th Cir. 1993)). The Fifth Circuit "has held many times

that no single factor is determinative." Id. at 106.3

In addition to considering the above factors, this Court

reviews defendant's Motion for Summary Judgment under the

standard set out in Rule 56 of the Federal Rules of Civil

Procedure. Rule 56 provides that summary judgment shall be

rendered when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. No

genuine issue of fact exists if the record, taken as a whole,

could not lead a rational trier of fact to find for the non-

moving party. Matsushita Electric Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). The plaintiff must present

affirmative evidence in order to defeat a properly supported

motion for summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 257 (1986). Plaintiff must make a showing

sufficient to establish the existence of an element essential to

his case, and on which he will bear the burden of proof at trial.

3 However, the court has also stated that the first factor is the "central issue" of borrowed employee status, Melancon v. Amoco Production Co., 834 F.2d 1238, 1245 (5th Cir.) amended, 841 F.2d 572 (1988). In other cases, the Fifth Circuit has stressed the importance of the fourth, fifth, sixth, and seventh factors of borrowed employee status. See Id., n. 12.

-9- Fields v. Hallsville Independent School District, 906 F.2d 1017

(5th Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

322-323 (1986)). In Anderson, the Supreme Court held that the

"inquiry involved in a ruling on a motion for summary judgment

... necessarily implicates the substantive evidentiary standard

of proof that would apply to trial on the merits." The judge

must decide:

[W]hether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of a plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict....

Anderson, 477 U.S. at 252.

A. Was Plaintiff the Borrowed Employee of Texaco?

1. Who had control over plaintiff and the work he was

performing, beyond mere suggestion of details or cooperation?

Regardless of the presence or absence of Texaco employees on

the Texaco platform 643-B at the actual time of the alleged

accident, the evidence provided the Court is undisputed LeMaire

was instructed by Texaco's employees. Of the four or five months

of his employment with Steen, LeMaire spent the three months

prior to his alleged accident reporting directly to Texaco's

platform. During his work for Texaco, LeMaire filled out a daily

log of his work hours in order to be paid for the job he was

-10- performing for Texaco. LeMaire dep. p. 70. The only contact

LeMaire had with Steen was to report his hours and receive his

paycheck. Accordingly, this Court finds that as to factor one

(1), Texaco had control over LeMaire and the work he was

performing.

Plaintiff controverts defendants' statement that "[b]oth

LeMaire and Phillips were doing work only for Texaco while on the

Texaco jobs," on the grounds that both LeMaire and Phillips were

doing work for their respective employers, Steen and D&C, which

involved work for Texaco under contract. However, plaintiff's

assertion embodies the nature of the "borrowed employee." The

evidence provided this Court establishes no question exists that

the work performed by LeMaire and Phillips was Texaco's work.

LeMaire dep. p. 73; Ardoin & Flice dep. pgs. 56, 62, 69.

Accordingly, this Court finds that LeMaire was performing

Texaco's work.

3. Was there an agreement, understanding, or meeting of the minds between the original and borrowing employer?

Plaintiff asserts in his Statement of Material Facts, page

3, that the contract between Texaco and Steen provided that Steen

was an independent contractor and that its employees were not

subject to Texaco's control. However, a contract provision such

as the one described above does not bar a borrowed employee's

status. Brown, 984 F.2d at 677; Melancon, 834 F.2d at 1245. The

-11- parties' actions in carrying out the contract can provide an

implied modification or waiver of such an express provision. Id.

As defendants assert, no written agreement is even required.

Billizon, 993 F.2d at 105-106.

In Billizon, the only disputed issue before the Court was

whether the existence of a contract provision "purporting to

prohibit borrowed-employee status [made] the district court's

summary judgment inappropriate." 993 F.2d at 106. The Court

held that even assuming factor three weighed in favor of the

plaintiff's position, the remainder of the summary judgment

record established that the plaintiff was Conoco's borrowed

employee. Id.

In that case, the service contract governing the

relationship between Conoco and the plaintiff's nominal employer,

D&C, provided that the employees of D&C were not the employees of

Conoco. However, the Court stated that it is "the reality of the

work site and the [parties'] actions" in carrying out a contract

that established for the Court that the two employers had the

contrary "'understanding or meeting of the minds'". Id.

Despite the contrary provisions in the contract between

Steen and Texaco, the facts and testimony provided this Court

indicate that Texaco controlled the work performed by LeMaire.

Donald Solar, a representative of Steen, LeMaire's direct

employer, stated in his deposition that, "We had a contract with

-12- Texaco to furnish personnel, but the detail job description that

was Texaco." Solar dep. p. 34. Solar also testified that Texaco

had exclusive day to day supervision over LeMaire when he was on

the Texaco job. Solar dep. p. 36.

In this case, like Billizon, only the third factor could

possibly support plaintiff's contention that he was not a

borrowed employee of Texaco. However, the Fifth Circuit has

repeatedly stated that "no single factor is determinative."

Billizon, 993 F.2d at 106; Brown, 984 F.2d at 676; Melancon, 834

F.2d at 1245. Therefore, the Court must further examine the

remaining factors to determine LeMaire's status as Texaco's

borrowed employee.

The Court in Capps v. N.L. Baroid-NL Industries, Inc., 784

F.2d 615, 617 (5th Cir.) cert denied, 479 U.S. 838, 107 S.Ct. 141

(1986) states:

The fourth factor asks whether the employee acquiesced in the new work situation. Since Capps worked for a company that loaned temporary employees, Capps knew Davis would send him into new work situations. Thus, going into new work situations was Capps' work situation. When he went to work for Davis, he acquiesced to the fact that Davis would constantly send him into new work situations.

The facts of this case and the deposition testimony provided the

Court establish that LeMaire acquiesced in the work situation.

LeMaire worked for three months for Texaco under the conditions

previously mentioned which included eating and sleeping on

-13- Texaco's fixed platform. The Fifth Circuit has stated that

working for "one month is a sufficient amount of time for [the

employee] to appreciate the new work condition." Brown, 984 F.2d

at 678.

In Solar's deposition, he stated, as Steen's representative,

that LeMaire never protested to Solar regarding LeMaire's work

situation with Texaco through Steen. Solar dep. p. 34. Further,

Richard Ardoin, LeMaire's and Phillips' supervisor and Texaco's

Lead Operator on the date of plaintiff's alleged accident, stated

in his deposition that he never heard LeMaire protest doing

Texaco's work when LeMaire was sent out to Texaco's platform.

Ardoin & Flice dep. p. 59.

Accordingly, the Court finds pursuant to factor four (4) that

LeMaire did acquiesce in his working situation as an employee of

Steen and the borrowed employee of Texaco.

5. Did the original employer terminate his relationship with the employee?

Under this factor, the Fifth Circuit has stated:

We do not believe that this factor requires a lending employer to completely sever his relationship with the employee. Such a requirement would effectively eliminate the borrowed employee doctrine as there could never be two employers. The emphasis when considering this factor should focus on the lending employer's relationship with the employee while the borrowing occurs.

Capps, 784 F.2d at 617-618. As previously stated, during his

employment with Steen, LeMaire worked under Texaco's supervision

and control.

-14- LeMaire stated in his deposition that the only supervision

on Texaco's platform was provided by either Texaco employees or

higher contract employees who were also working for Texaco.

LeMaire dep. p. 73. LeMaire's contact with Steen was limited to

reporting his hours to Steen. LeMaire had a copy of his time

sheet delivered to Steen so he could receive his paycheck for the

work he performed for Texaco. LeMaire dep. p. 70; Ardoin & Flice

dep. p. 62; Solar dep. p. 36. Ardoin stated in his deposition

that when the contract workers were on Texaco's platform, Texaco

had control over those workers. Ardoin & Flice dep. p. 55.

Ardoin also stated that even if he, or another Texaco employee,

was not actually on the Texaco platform in the presence of the

contract employees, Ardoin was still in charge of those

employees. Ardoin & Flice dep. p. 32. Robert Flice, a

representative of Texaco, stated in his deposition that Texaco

could send contract employees, like LeMaire and Phillips,

wherever Texaco wanted those employees to work. Ardoin & Flice

dep. p. 58.

Accordingly, the Court finds that Steen exercised no control

over plaintiff and placed no restrictions on Texaco with respect

to plaintiff's employment conditions. Capps, 784 F.2d 618.

Therefore, this Court finds that factor five (5) weighs in favor

of borrowed employee status.

6. Who furnished the tools and place for performance?

-15- Plaintiff's deposition establishes that "the tools and

equipment and platforms all belonged to Texaco". LeMaire dep. p.

73-4. Steen's representative also establishes in his deposition

that Texaco provided the tools with which LeMaire worked while

doing Texaco work. Solar dep. p. 35. It is undisputed that

Texaco provided the sleeping quarters in which LeMaire slept, the

meals that he ate, as well as LeMaire's transportation to and

from the job site while LeMaire worked for Texaco.

Accordingly, after reviewing the facts of this case, this

Court finds that factor six (6) weighs in favor of a finding of

borrowed employee status.

7. Was the new employment over a considerable length of time?

The arrangement between LeMaire, Steen and Texaco existed

for approximately three months prior to plaintiff's alleged

accident. In Capps, the Fifth Circuit noted that "[w]here the

length of employment is considerable, this factor supports a

finding that the employee is a borrowed employee; however, the

converse is not true." 784 F.2d at 618. In that case, Capps'

injury occurred on the first day and the Fifth Circuit concluded

that this seventh factor was neutral. Id. In Billizon, the

Fifth Circuit found factor seven to be neutral when the plaintiff

had worked for Conoco for more than three months. 993 F.2d 106.

Similarly, because plaintiff only worked under Texaco's

supervision for three months in the instant case, this Court

-16- finds that factor seven (7) is neutral.

8. Who had the right to discharge plaintiff?

No evidence was provided this Court indicating that Texaco

had the right to terminate LeMaire's employment with Steen.

However, in LeMaire's and Solar's depositions, they both

testified Texaco had the right to terminate LeMaire's work

relationship with Texaco. LeMaire dep. p. 65; Solar dep. p. 35.

The Fifth Circuit has stated that "[t]his arrangement is

sufficient to support a finding of borrowed servant status".

Brown, 984 F.2d at 679 (citing Melancon, 834 F.2d at 1246; Capps,

784 F.2d at 618). Accordingly, this Court finds that factor

eight (8) weighs in favor of a finding of borrowed employee

status.

LeMaire's deposition establishes that Steen paid him,

however he only reported his hours to Steen based on the time he

spent working for Texaco. LeMaire dep. pgs. 48,70; Ardoin &

Flice dep. p. 66. In Billizon, Capps, and Melancon, the Fifth

Circuit found that this procedure supported borrowed employee

status. Therefore, this Court finds that factor nine (9) weighs

in favor of borrowed employee status. Billizon, 993 F.2d 105-

106; Melancon, 834 F.2d 1246; Capps, 784 F.2d 618.

Factors 1,2,4,5,6,8 and 9 support LeMaire's borrowed-

employee status. Although this Court finds factor seven is

-17- neutral, the Fifth Circuit, in Billizon, has stated "the

neutrality of factor [seven] is insufficient to render the

district court's summary judgment inappropriate". 993 F.2d at

106. In that case, as stated above, the Court also found that

despite the question that existed regarding the third factor,

summary judgment was appropriate when the remaining factors

clearly pointed to borrowed-employee status. Id. This Court

finds, consistent with the Billizon Court, that even assuming

factor three weighs in favor of LeMaire's position, the remaining

factors support, and the evidence provided this Court

establishes, that LeMaire was Texaco's borrowed employee.

B. Was Defendant Phillips the Borrowed Employee of Texaco?

1. Who had control over Phillips and the work he was

performing, beyond mere suggestion of details or cooperation?

The deposition testimony of Phillips establishes that Texaco

employees gave all orders to Phillips. Phillips dep. p. 38-40.

Phillips was instructed by Texaco's employees. It is undisputed

that the foreman, a Texaco employee, decided where Phillips would

work on his seven day shift. Phillips dep. p. 38. Kenneth

Domingue, Texaco's lead operator, was Phillips' supervisor.

Like LeMaire, during Phillips' work for Texaco, Phillips

filled out a weekly time book of his work hours in order to be

paid for the job he was performing for Texaco. Phillips dep.

-18- pgs. 43-44. The only contact Phillips had with D&C was to report

his hours and receive his paycheck. Accordingly, this Court

finds that as to factor one (1), Texaco had control over Phillips

and the work he was performing.

Phillips' deposition testimony establishes that Phillips was

doing Texaco's work while he was working on Texaco's platform.

Phillips dep. p. 41. Accordingly, this Court finds that Phillips

was performing Texaco's work.

3. Was there an agreement, understanding, or meeting of the minds between the original and borrowing employer?

Again, as to the contract between D&C and Texaco, plaintiff

asserts in his Statement of Material Facts, page 3, that the

contract between Texaco and D&C provided that D&C was an

independent contractor and that its employees were not subject to

Texaco's control. Likewise, this Court adopts the same analysis

as was used in reference to LeMaire and the contract between

Steen and Texaco.

Despite the contrary provision in the contract between D&C

and Texaco, the facts and deposition testimony provided the Court

indicate that Texaco controlled the work performed by Phillips.

In this case, like Billizon, only the third factor could possibly

support plaintiff's contention that Phillips was not a borrowed

employee of Texaco. However, the Fifth Circuit has repeatedly

stated that "no single factor is determinative." Billizon, 993

-19- F.2d at 106; Brown, 984 F.2d at 676; Melancon, 834 F.2d at 1245.

Therefore, the Court must further examine the remaining factors

to determine Phillips' status as Texaco's borrowed employee.

The facts of this case dictate that Phillips acquiesced to

the work situation. Phillips worked for one year for Texaco

prior to the alleged accident. Phillips continued to work for

Texaco for a year and a half after the accident under the

conditions previously mentioned which included eating and

sleeping in Texaco's field. Accordingly, the Court finds

pursuant to factor four (4) that Phillips did acquiesce to his

working situation as an employee of D&C and the borrowed employee

of Texaco.

5. Did the original employer terminate his relationship with the employee?

As previously stated, during his two and a half years of

employment with D&C, Phillips worked under Texaco's supervision

and control. Phillips' contact with D&C was limited to reporting

his hours so he could receive his paycheck. Phillips dep. pgs.

43-44; Ardoin & Flice dep. p. 66. Accordingly, the Court finds

that D&C exercised no control over Phillips and placed no

restrictions on Texaco with respect to Phillips' employment

conditions. Capps, 784 F.2d 618. Therefore, this Court finds

that factor five (5) weighs in favor of borrowed employee status.

-20- Phillips' deposition establishes that Texaco furnished the

tools he used to perform his work for Texaco. Phillips dep. p.

43. It is undisputed that Texaco provided the sleeping quarters

in which Phillips slept, the meals that he ate, as well as

Phillips' transportation to and from the job site while Phillips

worked for Texaco. Further, all of Phillips' regular duties were

handled on the Texaco platforms where he was the lead operator.

LeMaire dep. pgs. 66-7. Accordingly, after reviewing the facts

of this case, this Court finds that factor six (6) weighs in

favor of a finding of borrowed employee status.

7. Was the new employment over a considerable length of time?

The arrangement between Phillips, D&C and Texaco existed for

approximately a year prior to plaintiff's alleged accident and

Phillips continued to work as a Texaco "contract hand" for almost

a year and a half thereafter. Phillips dep. pgs. 41-2.

Considering the facts and the duration of Phillips' employment

with Texaco through D&C, this Court finds that factor seven (7)

weighs in favor of a finding of borrowed employee status.

8. Who had the right to discharge Phillips?

In Phillips' deposition, he testified that after almost two

and a half years of work for Texaco through D&C, the field

foreman, a Texaco employee, called D&C and told them that Texaco

no longer needed Phillips. Phillips' deposition establishes that

Texaco discharged Phillips from the Texaco work. Phillips was

-21- aware that Texaco could discharge him. Phillips dep. p. 42.

Accordingly, this Court determines that Texaco, and not D&C, had

the right to discharge Phillips from his work for Texaco.

Therefore, this Court finds that factor eight (8) weighs in favor

of a finding of borrowed employee status.

Phillips' deposition establishes that D&C paid him, however

he only reported his hours to D&C based on the time he spent

working for Texaco. Phillips dep. p. 43. In Billizon, Capps,

and Melancon, the Fifth Circuit found that this procedure

supported borrowed employee status. Therefore, this Court finds

that factor nine (9) weighs in favor of borrowed employee status.

Billizon, 993 F.2d 105-106; Melancon, 834 F.2d 1246; Capps, 784

F.2d 618.

All factors, except factor three, support the borrowed-

employee status of Phillips. Once again, this Court relies on

the Fifth Circuit's statement in Billizon that despite the

question that existed regarding the third factor, summary

judgment was appropriate when the remaining factors clearly

pointed to borrowed-employee status. 993 F.2d at 106.

Therefore, even assuming factor three weighs in favor of

LeMaire's position, the remaining factors support, and the

evidence provided this Court establishes, that Phillips was

Texaco's borrowed employee.

-22- This Court now has two issues remaining to determine: 1)

whether LeMaire and Phillips, each found by this Court,

individually, to be borrowed employees of Texaco, were persons

"in the same employ" as defined by the LHWCA at the time of

LeMaire's alleged accident, and therefore, immune from tort suit

against one another; and 2) if LeMaire and Phillips were co-

employees of Texaco, then whether LeMaire's respondeat superior

action against Phillips' nominal employer, D&C, is also barred

under the LHWCA, §933(i). The Fifth Circuit addressed both of

these issues in Perron v. Bell Maintenance and Fabricators, Inc.,

970 F.2d 1409 (5th Cir. 1992). Therefore, this Court will

examine LeMaire's actions against D&C and Phillips in light of

the Fifth Circuit's findings in Perron.

C. Perron v. Bell Maintenance and Fabricators, Inc., 970 F.2d 1409 (5th Cir. 1992).

The primary issue before the Fifth Circuit in Perron was

whether the bar under the LHWCA, §933(i), for suits against a co-

employee likewise applied to the respondeat superior action

before that court filed by the plaintiff against his co-

employee's employer. 970 F.2d at 1410. The Fifth Circuit

affirmed the district court's granting of summary judgment in

favor of the employer. Id.

In Perron, the Court examined a fact scenario similar to

that before this Court. In that case, the plaintiff worked for

D&C nominally and was injured while working on a Gulf Oil

-23- production platform when he slipped and fell because of oil left

on the platform by Michael Lee, a direct employee of Bell

Maintenance. The plaintiff filed suit against Gulf Oil ("Gulf")

and Bell Maintenance ("Bell"). Gulf was dismissed on summary

judgment based on the district court's determination and the

Fifth Circuit's affirmation of the plaintiff's status as Gulf's

Bell Maintenance subsequently filed a motion for summary

judgment. The Fifth Circuit affirmed the district court's

dismissal of Bell and stated that "[i]n sum, Perron and Lee were

co-workers in every meaningful sense of the term. And because

they were borrowed servants/co-employees of the same employer

(Gulf), a fortiori, they were 'persons in the same employ' under

§933(i)." Id. at 1412.

In Perron, the plaintiff contended that §933(i) immunized

only the employer of the injured employee. Id. at 1411. The

Fifth Circuit corrected this assumption and stated that, "Section

933(i) does not protect employers; it protects negligent co-

employees." Id. at 1412. The Court then clarified the borrowed

employment issue now before this Court. The Court stated:

A borrowed servant becomes the employee of the borrowing employer, and "is to be dealt with as the servant of the [borrowing employer] and not of the [nominal employer]." In Ruiz v. Shell Oil Co., our court adopted the borrowed servant rule for the LHWCA. And borrowed servant status is a question of law.

Id. at 1412 (citations omitted). This Court has already

-24- determined that both LeMaire and Phillips were the borrowed

employees of Texaco. Following the reasoning of the Fifth

Circuit in Perron and based on the findings of this Court,

LeMaire and Phillips were "persons in the same employ" under

§933(i). Therefore, this Court finds they were co-employees of

Texaco at the time of plaintiff's alleged accident. As LeMaire

and Phillips were co-employees it follows, under Perron, that

Phillips should be dealt with as the servant of Texaco, and not

of D&C. Id.

After determining the employment status of the plaintiff and

Lee in relation to each other and the borrowing employer, Gulf

Oil, the Fifth Circuit then explained the next step in the

analysis. The Court stated the issue as follows:

Given that [the plaintiff] is barred by §933(i) from bringing an action against Lee, at issue is whether [the plaintiff] can bring this respondeat superior action against Bell, Lee's nominal employer. Consistent with the LHWCA's comprehensive scheme, [the plaintiff] is barred from doing so.

Id. Adhering to the Court's reasoning in Perron, this Court must

next address the issue of whether LeMaire can bring a respondeat

superior action against D&C, Phillips' nominal employer. The

Fifth Circuit has stated that bringing such an action against a

co-employee's nominal employer would not be consistent with the

LHWCA's comprehensive scheme. Id. Thus, the Fifth Circuit

states, the plaintiff is barred from bringing this respondeat

superior action. Id. Accordingly, this Court finds that to

-25- allow LeMaire to bring a respondeat superior action against D&C,

Phillips' nominal employer, would not be consistent with the

LHWCA's comprehensive scheme. Therefore, plaintiff is barred

from bringing this respondeat superior action against D&C.

Finally, in Perron, the plaintiff contended Louisiana tort

law governed his suit against Lee's nominal employer, defendant

Bell, under the OCSLA. The Fifth Circuit addressed the

plaintiff's OCSLA argument and held that "[s]ection 933(i)

provides that LHWCA payments 'shall be the exclusive remedy to an

employee when he is injured ... by the negligence or wrong of any

other person or person in the same employ.' State law is

therefore, preempted by §933(i) in this instance." Id. at 1413-

14.

In the case sub judice, plaintiff contends that the OCSLA

requires state law regarding third party negligence, immunity and

damages to apply to plaintiff's action against D&C. However,

this Court finds that Perron dictates otherwise. The Court in

Perron found Louisiana law regarding third party negligence and

immunity to be inconsistent with §933(i) as it applied to the

plaintiff's action against his co-employee's nominal employer.

Id. Therefore, this Court finds Louisiana law regarding third

party negligence and immunity to be preempted here as well.

Defendants assert, and this Court agrees, that the facts

before this Court are "on all fours" with Perron. Thus, §933(i)

-26- applies and precludes the application of any Louisiana tort law

principles to plaintiff's action against Phillips and plaintiff's

respondeat superior action against Phillips' nominal employer,

D&C.

Conclusion

Based on the facts provided this Court regarding the

borrowed servant status of LeMaire and Phillips and pursuant to

the application of the nine Ruiz factors as discussed above, this

Court finds that both LeMaire and Phillips were borrowed servants

of Texaco. As both LeMaire and Phillips were borrowed employees

of Texaco, under §933(i) and Perron, it necessarily follows that

LeMaire and Phillips were "persons in the same employ," and

therefore, co-employees.

Considering that both LeMaire and Phillips are co-employees/

borrowed servants of Texaco, Phillips and D&C, Phillips' nominal

employer, should be dismissed as a matter of law. Under the

LHWCA, LeMaire is barred from bringing any action against

Phillips as he is LeMaire's co-employee. D&C, as Phillips'

nominal employer, is not vicariously liable to LeMaire for the

alleged negligence of Phillips. Rather, Phillips is to be dealt

with as the servant of Texaco. This Court must apply the LHWCA

consistently. Accordingly, the Court finds that §933(i)

precludes the application of the inconsistent Louisiana tort law

principles under which LeMaire seeks recovery.

-27- Thus, this Court has determined that factors 1, 2, 4, 5, 6,

8 and 9 favor a finding of borrowed employee status as to LeMaire

and that all factors, except 3, favor a finding of borrowed

employee status as to Phillips. In accordance with the Fifth

Circuit's ruling in Billizon, this Court finds that despite the

uncertainty of the facts relating to factor three, the remaining

establishes, that LeMaire and Phillips were borrowed employees of

Texaco. Under §933(i) and Perron, this Court also finds that

LeMaire and Phillips were co-employees in the same employ within

the meaning of §933(i) of the LHWCA. As a co-employee, LeMaire

cannot maintain a tort action against Phillips. As D&C is

Phillips' nominal employer and, under Perron, is not vicariously

liable for Phillips' alleged negligence, LeMaire cannot maintain

a tort action against D&C. Accordingly, this Court GRANTS the

Motion for Summary Judgment [doc. #37] filed on behalf of

defendants, Danos & Curole Marine Contractors, Inc. and Charles

Phillips dismissing the complaint of Shawn LeMaire against D&C

and Phillips.

THUS DONE AND SIGNED this day of ,

l999.

REBECCA F. DOHERTY UNITED STATES DISTRICT JUDGE

-28- -29- UNITED STATES DISTRICT COURT

DANOS & CUROLE MARINE MAGISTRATE JUDGE METHVIN CONTRACTORS, INC., ET AL

O R D E R

Considering the foregoing Memorandum Ruling;

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion

for Summary Judgment [doc. #37] filed on behalf of defendants,

Danos & Curole Marine Contractors, Inc. and Charles Phillips

dismissing plaintiff Shawn LeMaire's complaints against Danos &

Curole Marine Contractors, Inc. and Charles Phillips is hereby

GRANTED.

-30- APPENDIX “A”

UNITED STATES DISTRICT COURT

whether Shawn LeMaire (“LeMaire”) and Phillips are the borrowed

employees of Texaco, Inc. ("Texaco") and therefore, co-employees

as defined by the Longshore & Harbor Workers' Compensation Act,

matter of law, LeMaire and Phillips are the borrowed employees of

Texaco and that LeMaire is barred from any recovery against his

(“OCLSA”) and the LHWCA should be dismissed on the basis that

LeMaire and Phillips are borrowed employees of Texaco and thus,

co-employees under the LHWCA. Pursuant to the LHWCA, Phillips and Phillips’ nominal employer, D&C, would be immune from tort

liability as any negligence on Phillips' part would be imputed to

Texaco as Phillips' borrowing employer, and not to D&C, Phillips'

the LHWCA granting immunity from tort liability to co-employees

should not apply. Rather, the OCSLA, 43 U.S.C. § 1333, requires

that state law be applied regarding third party negligence or

immunity and damages. Plaintiff also asserts there are genuine

issues of material fact as to whether LeMaire and Phillips were

genuine issues of material fact exist as to whether LeMaire was a

“co-employee” of D&C’s employee, Phillips, within the meaning of

whether LeMaire and/or Phillips were the borrowed employees of

Texaco as a matter of law, and thus, co-employees of Texaco as

Operator. Plaintiff was working at a job site owned by Texaco,

Inc. ("Texaco") in the Gulf of Mexico on a fixed platform located

undisputed that the platform is located more than three miles off

-32- the coast of Louisiana on the outer continental shelf.

months. LeMaire dep. p. 37. On the day plaintiff was allegedly

Curole Marine Contractors, Inc. ("D&C"). Phillips usually worked

because another person was off. LeMaire depo. p. 94; Ardoin &

Flice depo., pps. 28-30. Prior to LeMaire's alleged accident,

Phillips had worked continuously in the Texaco 643 field for one

tired. Plaintiff began to help Phillips remove the bolt when the

valve blew off and struck plaintiff in the head and knocked him

backwards on to the grating causing him to injure his head, neck

accident, he sustained injuries including a skull fracture, two

It is undisputed that at the time of LeMaire's alleged

accident, both D&C and Steen were under contract with Texaco to

-33- provide employees to operate Texaco platforms offshore and work

as directed by Texaco employees. LeMaire dep. p. 37; Solar dep.

normally worked schedules of seven days on and seven days off.

Phillips dep. p. 37; LeMaire dep. p. 38. Texaco provided their

sleeping quarters, their meals and their transportation to and

from the job. Phillips dep. p. 36; LeMaire dep. pgs. 44-45, 55-

56, 64. Phillips' immediate supervisor was Texaco Lead Operator,

Phillips had agreed to work over his seven day shift on the date

of the accident, he and LeMaire were both supervised by Texaco

LeMaire dep. p. 73; Ardoin & Flice dep. pgs. 55-56. Both LeMaire

provided this Court establishes the two men consented to the work

situation. Solar dep. p. 34; Ardoin & Flice dep. p. 59. Texaco

LeMaire and Phillips concerning their work duties. Phillips dep.

p. 39; LeMaire dep. p. 73; Ardoin & Flice dep. p. 55. No D&C or

Steen supervisors were sent out to any of the Texaco jobs.

-34- Flice dep. pgs. 56, 62, 69. Texaco could not terminate LeMaire

or Phillips' employment with their nominal employers; however, if

Texaco was not satisfied with the work that Phillips or LeMaire

was doing, a Texaco supervisor could have either man discharged

from his position on the Texaco platform by simply calling the

offices of their “nominal” employers and mentioning that their

applies, it preempts “the application of the idiosyncrasies of

Maintenance and Fabricators, Inc., 970 F.2d 1409, 1411 (5th Cir.

l992). However, outside of the Workers’ Compensation arena, the

OCSLA makes the tort law of the adjacent state surrogate federal

law and thus applicable to any tort-based cause of action for

those offshore injuries. See 43 U.S.C. § 1381, et seq. In other

words, were the plaintiff to have a remedy in tort against a non-

employer and thus, outside the LHWCA, this Court would apply the

substantive tort law of Louisiana. However, should this

plaintiff not have a tort remedy available against defendants D&C

and Phillips for the reasons urged by D&C and Phillips, LeMaire

would be limited to LHWCA benefits as the LHWCA is the workers’

-35- compensation scheme applicable to an offshore worker, such as the

borrowed employees of Texaco and thus, LeMaire cannot sue his co-

question of law for the district court to determine." Billizon

v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir.), reh'g denied, 3

F.3d 441 (1993). However, "in some cases, factual disputes must

determination." Id. The Fifth Circuit has set out the following

nine (9) factors which must be considered in determining borrowed

1. Who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation?

3. Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?

5. Did the original employer terminate his relationship with the employee?

7. Was the new employment over a considerable length of time?

Id. (citing Brown v. Union Oil Co. of California, 984 F.2d 674,

-36- 676 (5th Cir. 1993)). The Fifth Circuit "has held many times

that no single factor is determinative." Id. at 106.4

reviews defendant's Motion for Summary Judgment under the

rendered when there is no genuine issue of material fact and the

genuine issue of fact exists if the record, taken as a whole,

moving party. Matsushita Electric Industrial Co. v. Zenith Radio

motion for summary judgment. Anderson v. Liberty Lobby, Inc.,

sufficient to establish the existence of an element essential to

his case, and on which he will bear the burden of proof at trial.

Fields v. Hallsville Independent School District, 906 F.2d 1017

(5th Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

322-323 (1986)). In Anderson, the Supreme Court held that the

"inquiry involved in a ruling on a motion for summary judgment

... necessarily implicates the substantive evidentiary standard

4 However, the court has also stated that the first factor is the "central issue" of borrowed employee status, Melancon v. Amoco Production Co., 834 F.2d 1238, 1245 (5th Cir.) amended, 841 F.2d 572 (1988). In other cases, the Fifth Circuit has stressed the importance of the fourth, fifth, sixth, and seventh factors of borrowed employee status. See Id., n. 12.

-37- of proof that would apply to trial on the merits." The judge

[W]hether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of a plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict....

performing, beyond mere suggestion of details or cooperation?

accident, the evidence provided the Court is undisputed LeMaire

was instructed by Texaco's employees. Of the four or five months

prior to his alleged accident reporting directly to Texaco's

platform. During his work for Texaco, LeMaire filled out a daily

performing for Texaco. LeMaire dep. p. 70. The only contact

LeMaire had with Steen was to report his hours and receive his

paycheck. Accordingly, this Court finds that as to factor one

-38- Plaintiff controverts defendants' statement that "[b]oth

LeMaire and Phillips were doing work only for Texaco while on the

Texaco jobs," on the grounds that both LeMaire and Phillips were

doing work for their respective employers, Steen and D&C, which

involved work for Texaco under contract. However, plaintiff's

assertion embodies the nature of the "borrowed employee." The

evidence provided this Court establishes no question exists that

the work performed by LeMaire and Phillips was Texaco's work.

3. Was there an agreement, understanding, or meeting of the minds between the original and borrowing employer?

3, that the contract between Texaco and Steen provided that Steen

was an independent contractor and that its employees were not

subject to Texaco's control. However, a contract provision such

as the one described above does not bar a borrowed employee's

status. Brown, 984 F.2d at 677; Melancon, 834 F.2d at 1245. The

parties' actions in carrying out the contract can provide an

implied modification or waiver of such an express provision. Id.

-39- prohibit borrowed-employee status [made] the district court's

plaintiff's position, the remainder of the summary judgment

record established that the plaintiff was Conoco's borrowed

relationship between Conoco and the plaintiff's nominal employer,

D&C, provided that the employees of D&C were not the employees of

Conoco. However, the Court stated that it is "the reality of the

work site and the [parties'] actions" in carrying out a contract

that established for the Court that the two employers had the

contrary "'understanding or meeting of the minds'". Id.

Steen and Texaco, the facts and testimony provided this Court

indicate that Texaco controlled the work performed by LeMaire.

Donald Solar, a representative of Steen, LeMaire's direct

employer, stated in his deposition that, "We had a contract with

Texaco to furnish personnel, but the detail job description that

was Texaco." Solar dep. p. 34. Solar also testified that Texaco

had exclusive day to day supervision over LeMaire when he was on

possibly support plaintiff's contention that he was not a

-40- repeatedly stated that "no single factor is determinative."

Billizon, 993 F.2d at 106; Brown, 984 F.2d at 676; Melancon, 834

remaining factors to determine LeMaire's status as Texaco's

F.2d 615, 617 (5th Cir.) cert denied, 479 U.S. 838, 107 S.Ct. 141

The fourth factor asks whether the employee acquiesced in the new work situation. Since Capps worked for a company that loaned temporary employees, Capps knew Davis would send him into new work situations. Thus, going into new work situations was Capps' work situation. When he went to work for Davis, he acquiesced to the fact that Davis would constantly send him into new work situations.

The facts of this case and the deposition testimony provided the

Court establish that LeMaire acquiesced in the work situation.

LeMaire worked for three months for Texaco under the conditions

Texaco's fixed platform. The Fifth Circuit has stated that

working for "one month is a sufficient amount of time for [the

employee] to appreciate the new work condition." Brown, 984 F.2d

In Solar's deposition, he stated, as Steen's representative,

that LeMaire never protested to Solar regarding LeMaire's work

situation with Texaco through Steen. Solar dep. p. 34. Further,

Richard Ardoin, LeMaire's and Phillips' supervisor and Texaco's

-41- Lead Operator on the date of plaintiff's alleged accident, stated

Texaco's work when LeMaire was sent out to Texaco's platform.

Accordingly, the Court finds pursuant to factor four (4) that

LeMaire did acquiesce in his working situation as an employee of

5. Did the original employer terminate his relationship with the employee?

We do not believe that this factor requires a lending employer to completely sever his relationship with the employee. Such a requirement would effectively eliminate the borrowed employee doctrine as there could never be two employers. The emphasis when considering this factor should focus on the lending employer's relationship with the employee while the borrowing occurs.

employment with Steen, LeMaire worked under Texaco's supervision

LeMaire stated in his deposition that the only supervision

on Texaco's platform was provided by either Texaco employees or

LeMaire dep. p. 73. LeMaire's contact with Steen was limited to

sheet delivered to Steen so he could receive his paycheck for the

work he performed for Texaco. LeMaire dep. p. 70; Ardoin & Flice

dep. p. 62; Solar dep. p. 36. Ardoin stated in his deposition

-42- that when the contract workers were on Texaco's platform, Texaco

Ardoin also stated that even if he, or another Texaco employee,

was not actually on the Texaco platform in the presence of the

representative of Texaco, stated in his deposition that Texaco

wherever Texaco wanted those employees to work. Ardoin & Flice

over plaintiff and placed no restrictions on Texaco with respect

to plaintiff's employment conditions. Capps, 784 F.2d 618.

Therefore, this Court finds that factor five (5) weighs in favor

Plaintiff's deposition establishes that "the tools and

equipment and platforms all belonged to Texaco". LeMaire dep. p.

73-4. Steen's representative also establishes in his deposition

that Texaco provided the tools with which LeMaire worked while

Texaco provided the sleeping quarters in which LeMaire slept, the

meals that he ate, as well as LeMaire's transportation to and

-43- Court finds that factor six (6) weighs in favor of a finding of

7. Was the new employment over a considerable length of time?

for approximately three months prior to plaintiff's alleged

accident. In Capps, the Fifth Circuit noted that "[w]here the

finding that the employee is a borrowed employee; however, the

converse is not true." 784 F.2d at 618. In that case, Capps'

injury occurred on the first day and the Fifth Circuit concluded

Fifth Circuit found factor seven to be neutral when the plaintiff

had worked for Conoco for more than three months. 993 F.2d 106.

finds that factor seven (7) is neutral.

had the right to terminate LeMaire's employment with Steen.

However, in LeMaire's and Solar's depositions, they both

testified Texaco had the right to terminate LeMaire's work

relationship with Texaco. LeMaire dep. p. 65; Solar dep. p. 35.

-44- Brown, 984 F.2d at 679 (citing Melancon, 834 F.2d at 1246; Capps,

however he only reported his hours to Steen based on the time he

Flice dep. p. 66. In Billizon, Capps, and Melancon, the Fifth

Circuit found that this procedure supported borrowed employee

status. Therefore, this Court finds that factor nine (9) weighs

in favor of borrowed employee status. Billizon, 993 F.2d 105-

neutral, the Fifth Circuit, in Billizon, has stated "the

district court's summary judgment inappropriate". 993 F.2d at

106. In that case, as stated above, the Court also found that

despite the question that existed regarding the third factor,

finds, consistent with the Billizon Court, that even assuming

factor three weighs in favor of LeMaire's position, the remaining

-45- establishes, that LeMaire was Texaco's borrowed employee.

performing, beyond mere suggestion of details or cooperation?

employees gave all orders to Phillips. Phillips dep. p. 38-40.

Phillips was instructed by Texaco's employees. It is undisputed

that the foreman, a Texaco employee, decided where Phillips would

Domingue, Texaco's lead operator, was Phillips' supervisor.

Like LeMaire, during Phillips' work for Texaco, Phillips

filled out a weekly time book of his work hours in order to be

pgs. 43-44. The only contact Phillips had with D&C was to report

finds that as to factor one (1), Texaco had control over Phillips

Phillips' deposition testimony establishes that Phillips was

doing Texaco's work while he was working on Texaco's platform.

Phillips dep. p. 41. Accordingly, this Court finds that Phillips

3. Was there an agreement, understanding, or meeting of the minds between the original and borrowing employer?

-46- Again, as to the contract between D&C and Texaco, plaintiff

independent contractor and that its employees were not subject to

Texaco's control. Likewise, this Court adopts the same analysis

and Texaco, the facts and deposition testimony provided the Court

indicate that Texaco controlled the work performed by Phillips.

In this case, like Billizon, only the third factor could possibly

support plaintiff's contention that Phillips was not a borrowed

employee of Texaco. However, the Fifth Circuit has repeatedly

stated that "no single factor is determinative." Billizon, 993

F.2d at 106; Brown, 984 F.2d at 676; Melancon, 834 F.2d at 1245.

Therefore, the Court must further examine the remaining factors

to determine Phillips' status as Texaco's borrowed employee.

prior to the alleged accident. Phillips continued to work for

sleeping in Texaco's field. Accordingly, the Court finds

pursuant to factor four (4) that Phillips did acquiesce to his

-47- working situation as an employee of D&C and the borrowed employee

5. Did the original employer terminate his relationship with the employee?

employment with D&C, Phillips worked under Texaco's supervision

and control. Phillips' contact with D&C was limited to reporting

his hours so he could receive his paycheck. Phillips dep. pgs.

43-44; Ardoin & Flice dep. p. 66. Accordingly, the Court finds

restrictions on Texaco with respect to Phillips' employment

that factor five (5) weighs in favor of borrowed employee status.

Phillips' deposition establishes that Texaco furnished the

tools he used to perform his work for Texaco. Phillips dep. p.

43. It is undisputed that Texaco provided the sleeping quarters

Phillips' transportation to and from the job site while Phillips

worked for Texaco. Further, all of Phillips' regular duties were

handled on the Texaco platforms where he was the lead operator.

LeMaire dep. pgs. 66-7. Accordingly, after reviewing the facts

7. Was the new employment over a considerable length of time?

-48- The arrangement between Phillips, D&C and Texaco existed for

approximately a year prior to plaintiff's alleged accident and

Phillips continued to work as a Texaco "contract hand" for almost

Considering the facts and the duration of Phillips' employment

with Texaco through D&C, this Court finds that factor seven (7)

In Phillips' deposition, he testified that after almost two

foreman, a Texaco employee, called D&C and told them that Texaco

no longer needed Phillips. Phillips' deposition establishes that

Texaco discharged Phillips from the Texaco work. Phillips was

aware that Texaco could discharge him. Phillips dep. p. 42.

Accordingly, this Court determines that Texaco, and not D&C, had

Therefore, this Court finds that factor eight (8) weighs in favor

Phillips' deposition establishes that D&C paid him, however

supported borrowed employee status. Therefore, this Court finds

that factor nine (9) weighs in favor of borrowed employee status.

-49- Billizon, 993 F.2d 105-106; Melancon, 834 F.2d 1246; Capps, 784

employee status of Phillips. Once again, this Court relies on

the Fifth Circuit's statement in Billizon that despite the

LeMaire's position, the remaining factors support, and the

This Court now has two issues remaining to determine: 1)

individually, to be borrowed employees of Texaco, were persons

LeMaire's alleged accident, and therefore, immune from tort suit

employees of Texaco, then whether LeMaire's respondeat superior

action against Phillips' nominal employer, D&C, is also barred

under the LHWCA, §933(i). The Fifth Circuit addressed both of

these issues in Perron v. Bell Maintenance and Fabricators, Inc.,

examine LeMaire's actions against D&C and Phillips in light of

-50- C. Perron v. Bell Maintenance and Fabricators, Inc., 970 F.2d 1409 (5th Cir. 1992).

whether the bar under the LHWCA, §933(i), for suits against a co-

employee's employer. 970 F.2d at 1410. The Fifth Circuit

affirmed the district court's granting of summary judgment in

that before this Court. In that case, the plaintiff worked for

production platform when he slipped and fell because of oil left

Maintenance. The plaintiff filed suit against Gulf Oil ("Gulf")

judgment based on the district court's determination and the

Fifth Circuit's affirmation of the plaintiff's status as Gulf's

judgment. The Fifth Circuit affirmed the district court's

dismissal of Bell and stated that "[i]n sum, Perron and Lee were

co-workers in every meaningful sense of the term. And because

they were borrowed servants/co-employees of the same employer

(Gulf), a fortiori, they were 'persons in the same employ' under

-51- §933(i)." Id. at 1412.

Fifth Circuit corrected this assumption and stated that, "Section

employees." Id. at 1412. The Court then clarified the borrowed

A borrowed servant becomes the employee of the borrowing employer, and "is to be dealt with as the servant of the [borrowing employer] and not of the [nominal employer]." In Ruiz v. Shell Oil Co., our court adopted the borrowed servant rule for the LHWCA. And borrowed servant status is a question of law.

determined that both LeMaire and Phillips were the borrowed

§933(i). Therefore, this Court finds they were co-employees of

Texaco at the time of plaintiff's alleged accident. As LeMaire

and Phillips were co-employees it follows, under Perron, that

Phillips should be dealt with as the servant of Texaco, and not

Lee in relation to each other and the borrowing employer, Gulf

Given that [the plaintiff] is barred by §933(i) from

-52- bringing an action against Lee, at issue is whether [the plaintiff] can bring this respondeat superior action against Bell, Lee's nominal employer. Consistent with the LHWCA's comprehensive scheme, [the plaintiff] is barred from doing so.

Id. Adhering to the Court's reasoning in Perron, this Court must

next address the issue of whether LeMaire can bring a respondeat

superior action against D&C, Phillips' nominal employer. The

Fifth Circuit has stated that bringing such an action against a

co-employee's nominal employer would not be consistent with the

LHWCA's comprehensive scheme. Id. Thus, the Fifth Circuit

states, the plaintiff is barred from bringing this respondeat

allow LeMaire to bring a respondeat superior action against D&C,

Phillips' nominal employer, would not be consistent with the

LHWCA's comprehensive scheme. Therefore, plaintiff is barred

law governed his suit against Lee's nominal employer, defendant

plaintiff's OCSLA argument and held that "[s]ection 933(i)

provides that LHWCA payments 'shall be the exclusive remedy to an

employee when he is injured ... by the negligence or wrong of any

other person or person in the same employ.' State law is

therefore, preempted by §933(i) in this instance." Id. at 1413-

-53- requires state law regarding third party negligence, immunity and

damages to apply to plaintiff's action against D&C. However,

this Court finds that Perron dictates otherwise. The Court in

Perron found Louisiana law regarding third party negligence and

immunity to be inconsistent with §933(i) as it applied to the

plaintiff's action against his co-employee's nominal employer.

Id. Therefore, this Court finds Louisiana law regarding third

before this Court are "on all fours" with Perron. Thus, §933(i)

applies and precludes the application of any Louisiana tort law

principles to plaintiff's action against Phillips and plaintiff's

respondeat superior action against Phillips' nominal employer,

borrowed servant status of LeMaire and Phillips and pursuant to

the application of the nine Ruiz factors as discussed above, this

Court finds that both LeMaire and Phillips were borrowed servants

of Texaco. As both LeMaire and Phillips were borrowed employees

of Texaco, under §933(i) and Perron, it necessarily follows that

borrowed servants of Texaco, Phillips and D&C, Phillips' nominal

-54- employer, should be dismissed as a matter of law. Under the

Phillips as he is LeMaire's co-employee. D&C, as Phillips'

nominal employer, is not vicariously liable to LeMaire for the

alleged negligence of Phillips. Rather, Phillips is to be dealt

with as the servant of Texaco. This Court must apply the LHWCA

precludes the application of the inconsistent Louisiana tort law

Thus, this Court has determined that factors 1, 2, 4, 5, 6,

8 and 9 favor a finding of borrowed employee status as to LeMaire

Circuit's ruling in Billizon, this Court finds that despite the

uncertainty of the facts relating to factor three, the remaining

establishes, that LeMaire and Phillips were borrowed employees of

LeMaire and Phillips were co-employees in the same employ within

the meaning of §933(i) of the LHWCA. As a co-employee, LeMaire

Phillips' nominal employer and, under Perron, is not vicariously

liable for Phillips' alleged negligence, LeMaire cannot maintain

a tort action against D&C. Accordingly, this Court GRANTS the

-55- defendants, Danos & Curole Marine Contractors, Inc. and Charles

Phillips dismissing the complaint of Shawn LeMaire against D&C

CONTRACTORS, INC., ET AL

for Summary Judgment [doc. #37] filed on behalf of defendants,

dismissing plaintiff Shawn LeMaire's complaints against Danos &

Curole Marine Contractors, Inc. and Charles Phillips is hereby

-56-