Mosley v. Halter Marine Grp

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 20, 1999
• Docket: 98-31158
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-31158 Summary Calendar

PAUL MOSLEY,

Plaintiff-Appellant,

versus

HALTER MARINE GROUP, INC.; TECHNICAL EMPLOYMENT SERVICES, INC.,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 97-CV-3468 - - - - - - - - - - July 19, 1999

Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Appellant, Paul Mosley, sued Halter Marine Group, Inc.

(Halter) and Technical Employment Services, Inc. (TechServ), for

personal injuries incurred while he was working as a ship fitter

at a Halter yard. The district court granted Halter’s motion for

summary judgment on the basis that Mosley was Halter’s borrowed

employee and, therefore, was limited to benefits under the

Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905

et seq. It is from that judgment that Mosley appeals.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-31158 -2-

This court reviews a decision to grant a motion for summary

judgment de novo, applying the same standards as the district

court. See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.

1992). The nine factors which inform our determination of

borrowed employee status are set forth in Gaudet v. Exxon Corp.,

562 F.2d 351, 355 (5th Cir. 1977), and although we address each

in turn, we do not list them separately.

Mosley worked at the direction and under the control of

Halter leadermen, who told Mosley “what work to do, and when and

where to do it” on a daily basis; Mosley put forward no evidence

to the contrary. See Melancon v. Amoco Prod. Co., 834 F.2d 1238,

1245 (5th Cir. 1993). The ship fitting work was clearly Halter’s

work, and not that of TechServ, whose business “existed solely to

furnish employees to other companies so that the employee could

perform the work of the borrowing employer.” See Capps v. N.L.

Baroid-NL Indus., Inc., 784 F.2d 615, 617 (5th Cir. 1986).

Although Mosley provided some of his own personal equipment,

Halter provided him with a cutting torch and made available other

welding equipment, and Mosley performed his work exclusively at

Halter facilities. See Melancon, 834 F.2d at 1246. Halter was

obligated to pay Mosley as it provided funds to TechServ for

Mosley’s wages, and Mosley was paid based on the number of hours

he worked at Halter. See id. Mosley acquiesced in the new

employment as he knew TechServ would send him out to work for

other employers, and TechServ terminated, at least temporarily,

its relationship with Mosley during his employment at Halter. No. 98-31158 -3-

See Capps, 784 F.2d at 617. These factors all point to borrowed

employee status.

Mosley’s length of employment at Halter was not significant

and is, therefore, neutral. See id. As for whether any

agreement existed between Halter and TechServ regarding Mosley’s

status, Mosley points to a provision in the Halter/TechServ

Contract Labor Agreement which purports to deem all TechServ

employees as independent contractors. Mosley contends that this

provision creates an issue of fact as to the parties’ intent.

However, parties may not contractually defeat borrowed servant

status when, as here, the reality is otherwise. See Melancon,

834 F.2d at 1245.

The only issue of fact is whether Halter had the right to

terminate Mosley; the affidavit of TechServ’s general manager

directly contradicts express language in the contract. However,

that alone is insufficient to preclude summary judgment in light

of the other factors which demonstrate that Mosley was Halter’s

borrowed servant. See Gaudet, 562 F.2d at 358.

Mosley’s contention that Halter is not liable for LHWCA

benefits and is, therefore, not entitled to immunity, is without

merit in light of our holding in Total Marine Services v.

Director, OWCP, 87 F.3d 774, 779 (5th Cir. 1996). Further, the

contract does not relieve Halter of the obligation to reimburse

TechServ for benefits, but places on TechServ the obligation of

obtaining insurance in the first instance.

For the foregoing reasons, the district court’s judgment is

AFFIRMED. No. 98-31158 -4-