Perron v. Bell Maintenance and Fabricators, Inc.

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 21, 1992
• Docket: 91-3351
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 91-3351 _____________________

WINSTON J. PERRON,

Plaintiff-Appellant,

UNITED STATES FIRE INSURANCE COMPANY,

Intervenor-Appellant,

VERSUS

BELL MAINTENANCE AND FABRICATORS, INC.,

Defendant-Appellee. ____________________________________________________

Appeals from the United States District Court for the Eastern District of Louisiana ___________________________________________________

(August 21, 1992)

Before BRIGHT,1 JOLLY, and BARKSDALE, Circuit Judges.

PER CURIAM:

Winston Perron and Michael Lee having been nominal employees

of different companies, but "borrowed servants" of Gulf Oil, when

Perron was allegedly injured on Gulf's offshore platform by Lee's

negligence, the issue in this appeal is whether the bar under the

Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. §

933(i), for suits against a co-employee likewise applies to this

tort action (respondeat superior) by Perron against Lee's employer,

Bell Maintenance & Fabricators Co., as held by the district court

in granting summary judgment for Bell. We AFFIRM.

1 Senior Circuit Judge of the Eighth Circuit, sitting by designation. - 2 - I.

In early 1985, Perron, an operator on a Gulf production

platform on the outer continental shelf, allegedly slipped and fell

because of oil left on the platform by Lee. Gulf did not directly

employ Perron or Lee, but instead, contracted with businesses that

supply oil companies with labor. Danos & Curole Marine

Contractors, Inc. (Danos), employed Perron; Bell, Lee.

Perron sued Gulf in district court in January 1986; but

summary judgment was rendered against him on the basis that he was

Gulf's "borrowed servant" and that, therefore, under 33 U.S.C. §

905(a), his exclusive remedy was workers' compensation under the

LHWCA, 33 U.S.C. § 901 et seq.2 This court affirmed in an

unpublished opinion. Perron v. Gulf Oil Corp., 893 F.2d 344 (5th

Cir. 1989), cert. denied, __ U.S. __, 110 S. Ct. 3273 (1990).

Perron is now receiving compensation provided by Danos, his nominal

2 The liability of an employer ... shall be exclusive and in place of all other liability of such employer to the employee ... on account of such injury ... except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee ... may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury .... In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant .... For purposes of this subsection, a contractor shall be deemed the employer of a subcontractor's employees only if the subcontractor fails to secure the payment of compensation as required by section 904 ....

33 U.S.C. § 905(a).

- 3 - employer, pursuant to its contract with Gulf, as required by the

LHWCA. See note 2, supra.

In early December 1989, almost four years after filing suit

against Gulf, and while the appeal from the summary judgment in

favor of Gulf in that action was pending in this court (the opinion

was rendered late that month), Perron brought this third-party

action in state court against Bell, Lee's nominal employer, under

a theory of respondeat superior. Bell removed to federal court,

but was unsuccessful in having the action transferred to the

district where the action against Gulf had been filed. In early

1991, it was awarded summary judgment, the district court holding

that the action was barred by 33 U.S.C. § 933(i), because Lee and

Perron were both "in the same employ".3

The district court denied Perron's motion to reconsider,

noting that Perron had been held by this court to be a "borrowed

servant" of Gulf and that Perron did not dispute Bell's contention

that Lee was also a "borrowed servant" of Gulf. Therefore, it held

again that Perron and Lee were "in the same employ", even though

nominally employed by different companies. The district court

rejected Perron's contention that Louisiana law should be applied

to the dispute, holding that the Outer Continental Shelf Lands Act

3 Section 933(i) provides:

The right to compensation or benefits under [the LHWCA] shall be the exclusive remedy to an employee when he is injured ... by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.

- 4 - (OCSLA), 43 U.S.C. § 1331 et seq., "provides that the LHWCA is the

compensation law applicable to this case, preempting the

application of the idiosyncracies of the Louisiana Workers'

Compensation scheme."

II.

Summary judgment is appropriate if the record discloses "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ... In reviewing the summary judgment, we apply the same standard of review as did the district court.

Sims v. Monumental General Ins. Co., 960 F.2d 478, 479 (5th Cir.

1992) (quoting Fed. R. Civ. P. 56(c)). Because we need only apply

the law to undisputed facts, this case is well suited to summary

judgment. See id. at 480.

Under OCSLA, payments are to be made under the LHWCA for

"disability or death of an employee resulting from any injury

occurring as the result of [offshore] operations" of the type

involved in this action. 43 U.S.C. § 1333(b). This appeal turns

on 33 U.S.C. § 933(i), which substitutes LHWCA remedies exclusively

for an action for an injury caused by a person "in the same

employ". See note 3, supra. While "`this provision limits an

employee's rights, it ... at the same time expand[s] them by

immunizing him against suits where he negligently injures a fellow

worker.'" Sharp v. Elkins, 616 F. Supp. 1561, 1565 (W.D. La. 1985)

(emphasis omitted) (quoting Congressional comments on § 933(i)).

As stated, the injured co-employee's exclusive remedy is payments

guaranteed under the LHWCA. See Johnson v. American Mutual

Liability Ins. Co., 559 F.2d 382, 390-91 (5th Cir. 1977). Under

- 5 - this scheme, the injured employee may receive a smaller sum than a

liability judgment, but the LHWCA payments are more certain and

allow the injured worker to avoid the hazards of litigation. See

id. (construing § 905(a) immunity to extend to employer's liability

carrier).

Perron contends that Bell should not be vested with § 933(i)

immunity, because it is not his employer and did not provide

workers' compensation payments to him (there was no quid pro quo).

He also contends that he has a cause of action against Bell under

Louisiana law.

A.

Perron's first contention is based on the assumption that §

933(i) immunizes only the employer of the injured employee. Perron

cites no authority for this proposition, and we know of none. He

merely cites several cases in which this court held that employers

are protected by § 905(a) from liability to their employees. See,

e.g., Gaudet v. Exxon Corp., 562 F.2d 351, 356 (5th Cir. 1977),

cert. denied, 436 U.S. 913 (1978). Bell claims the protection of

§ 933(i), not § 905(a). Section 933(i) does not protect employers;

it protects negligent co-employees. See id. at 354 n.4.

1.

Perron maintains that recovery is not barred against Bell for

injuries caused by Lee's negligence, because, as used in § 933(i),

Lee was not "in the same employ" as he; that Lee was in the employ

of Bell, while he was in the employ of Danos. In support, Perron

asserts that Lee was not a borrowed servant of Gulf, but the

- 6 - uncontested material facts were that "[a]ll control and direction

over Bell Maintenance employees such as Lee was exercised by Gulf"

and that "[o]ther than the direct supervision of ... Lee by Herman

Marshall [a Gulf mechanic], Gulf exercised the same control over

... Lee as Gulf exercised over Perron."4

A borrowed servant becomes the employee of the borrowing

employer, Standard Oil v. Anderson, 212 U.S. 215 (1909), and "is to

be dealt with as the servant of the [borrowing employer] and not of

the [nominal employer]." Denton v. Yazoo & M.V. Railway Co., 284

U.S. 305 (1932). In Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13

(5th Cir. 1969), our court adopted the borrowed servant rule for

the LHWCA. See, e.g., Melancon v. Amoco Prod. Co., 834 F.2d 1238,

1244 n.10 (5th Cir. 1988); Capps v. N.L. Baroid-NL Indus., 784

F.2d 615 (5th Cir.), cert. denied, 479 U.S. 838 (1986); Gaudet, 562

F.2d at 355-57. And, borrowed servant status is a question of law.

E.g., Melancon, 834 F.2d at 1244.

As noted, in Perron's action against Gulf, this court held

that Perron was a borrowed servant of Gulf. Furthermore, as

referenced above, and as the district court noted, Perron did not

dispute, in opposition to summary judgment in this action, that Lee

and Perron were both borrowed servants of Gulf; in fact, he

admitted that they were. He stated:

[Perron] does not dispute that Lee was a borrowed servant of Gulf. Perron and Lee were borrowed servants for Gulf on the platform. However, the

4 The day shift consisted only of Marshall and Lee; the night shift, of Perron and another Danos employee.

- 7 - plaintiff contends that Lee was not a "co-employee" to serve as a bar to this tort action.

(In his supporting brief for his motion to reconsider, Perron took

a different tack and contended that Perron was not the borrowed

servant of Bell.) It goes without saying that Perron cannot admit

in district court that Lee was a borrowed servant of Gulf but deny

that here.

In 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).

2.

Given that Perron is barred by § 933(i) from bringing an

action against Lee, at issue is whether Perron can bring this

respondeat superior action against Bell, Lee's nominal employer.

Consistent with the LHWCA's comprehensive scheme, Perron is barred

from doing so.

In Nations v. Morris, 483 F.2d 577 (5th Cir. 1973), cert.

denied, 414 U.S. 1071 (1973), as here, the plaintiff was injured by

an allegedly negligent co-employee on an oil platform on the outer

continental shelf. Id. at 579. The plaintiff sued his co-

employee's liability insurer under Louisiana's direct action

statute. Id. at 580. Similar to the vicarious liability claimed

here, the Nations co-employee and his insurer were solidary

obligors (jointly and severally liable) under Louisiana law. Id.

at 586-87. Therefore, if the § 933(i) defense was not personal to

the co-employee, but rather "inhere[d] in the nature of the

- 8 - obligation", the insurer could assert it against the injured

plaintiff. Id. at 587.

Nations concluded that the § 933(i) defense was available to

the co-employee's solidary obligors. Id. at 587-89. It reasoned

that §§ 933(i) and 905(a) do not merely remove the remedy of

proceeding directly against one tortfeasor to enforce an otherwise-

preserved right, but also "completely obliterate[] the rights at

common, civil or maritime law against Employer and fellow

employee." Id. at 587.

Congress ... has determined that the relationship gives rise only to compensation liabilities. The nature of the obligation is that there is no -- the word is no -- obligation.

* * *

[LHWCA] is comprehensive. It has adjusted and rearranged the rights of maritime and other specifically covered workers. We could not hold that [LHWCA] merely cut off the remedy against the fellow employee and that since the amendment in 19595 there has

5 Section 933 was amended in 1959 for the purpose of "immuniz[ing] fellow employees against damages suits." S. Rep. No. 428, 86th Cong., 1st Sess., reprinted in 1959 U.S.C.C.A.N. 2134.

The rationale of this change in the law is that when an employee goes to work in a hazardous industry he encounters two risks. First, the risk inherent in the hazardous work and second, the risk that he might negligently hurt someone else and thereby incur a large common-law damage liability. While it is true that this provision limits an employee's rights, it would at the same time expand them by immunizing him against suits where he negligently injures a fellow worker. It simply means that rights and liabilities arising within the "employee family" will be settled within the framework of the [LHWCA].

Id.

- 9 - subsisted a remedy-less right against the co-worker which had no utility until the passage of the Direct Action Statute and OCSLA with its surrogate out-reach. ... [T]he comprehensive scheme known as [LHWCA] is the whole source of rights and remedies.

Nations, 483 F.2d at 587-88 (emphasis in original) (footnote

omitted). Restated, "[t]he prohibition of suits between co-workers

under the [LHWCA] is not a personal defense but may be claimed by

the negligent co-workers' solidary obligors." Louisiana Land &

Exploration Co. v. Amoco Prod. Co., 878 F.2d 852, 855 (5th Cir.

1989) (citing Nations, 483 F.2d at 589).

This respondeat superior action against Bell arises out of its

employee's, Lee's, alleged negligence. However, Perron has no

right to recover for Lee's negligence except as provided by the

LHWCA's comprehensive scheme; the LHWCA payments are substituted

for any right Perron might have had to sue Lee's employer under

respondeat superior. (As noted, Perron has been receiving such

payments from its nominal employer, Danos). Nations extended §

933(i)'s protection to the solidary obligors of negligent co-

employees. And, to the extent that Bell is vicariously liable for

Lee's negligence, they are solidary obligors. Just as the

liability insurer in Nations was protected by § 933(i), so too is

Bell. Simply put, Perron cannot assert against Bell, the employer,

his non-existent right against Lee, its employee. The fact that

Bell is not Perron's employer is irrelevant to whether § 933(i)

bars his action against Bell.6

6 As support for challenging the § 933 (i) bar, Perron states that "Bell ... would never be obligated to Danos ... employees [such as Perron] for compensation benefits and, thus, there is no

- 10 - B.

Despite OCSLA making the LHWCA applicable to injuries

occurring in operations of the type involved in this action, Perron

asserts that, under OCSLA, Louisiana law should govern this case.

But, by its terms, OCSLA makes state law applicable only when it is

not inconsistent with federal law, providing in pertinent part:

To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws ..., the civil and criminal laws of each adjacent State ... are hereby declared to be the law of the United States for [the outer continental shelf adjacent to the state].

43 U.S.C. § 1333(a)(2)(A) (emphasis added).

Section 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 persons in the same

employ." State law is, therefore, preempted by § 933(i) in this

instance.

III.

Accordingly, the judgment is

AFFIRMED.

quid pro quo between Bell and Perron", relying on the concurring opinion in West v. Kerr-McGee Corp., 765 F.2d 526 (5th Cir. 1985) (dealing with § 905 immunity). Section 933(i) bars liability, regardless of whether the otherwise-liable defendant provided LHWCA payments to the plaintiff. Perron confuses § 933(i) with § 905(a), which permits an injured employee to seek recovery at law if his employer "fail[ed] to secure payment of compensation as required by this chapter". This exception is not found in § 933(i).

- 11 -