UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-31021
Summary Calendar
TIMOTHY J. CHARPENTIER,
Plaintiff-Appellant,
VERSUS
MARATHON OIL COMPANY; ET AL.
Defendant,
PHILLIPS PETROLEUM COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(H-96-CV-529)
October 21, 1998
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
Appellant Timothy J. Charpentier appeals from an order
granting summary judgment to Appellee Phillips Petroleum Company.
Finding no error, we affirm.
*
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this opinion should not be published and is not precedent except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.
BACKGROUND
Charpentier, while employed as a contract worker on a fixed
platform located on the Outer Continental Shelf, sustained personal
injuries when the wind caught a large piece of plywood and blew it
into him. Charpentier alleges that the plywood should have been
secured in light of an approaching storm. Charpentier, an employee
of Omega Service Industries, Inc., brought suit against Marathon
Oil Company, the owner/operator of the platform, and Phillips
Petroleum Company which was modifying the existing platform
pursuant to an agreement between Marathon and Phillips.
Phillips moved for summary judgment on the grounds that its
records reflected that none of its employees were present on the
platform on the date of the injury. The district court granted
Phillips’ motion and dismissed Charpentier’s claims against
Phillips. Charpentier filed a motion for new trial, which also was
denied. Charpentier timely appeals.
ANALYSIS
We review a district court’s grant of summary judgment de novo
using the same standard of review as the district court. Exxon
Corp. v. St. Paul Fire and Marine Insur. Co., 129 F.3d 781, 784
(5th Cir. 1997). A party is entitled to summary judgment if it can
demonstrate that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Once a
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movant who does not have the burden of proof at trial makes a
properly supported motion, the burden shifts to the nonmovant to
show that a summary judgment should not be granted. Id. at 321-25.
A party opposing such a summary judgment motion may not rest upon
mere allegations contained in the pleadings, but must set forth and
support by summary judgment evidence specific facts showing the
existence of a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255-57 (1986). When ruling on a motion for
summary judgment, "the inferences to be drawn from the underlying
facts . . . must be viewed in the light most favorable to the party
opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574, 587 (1986) (quoting United States v. Diebold, 369
U.S. 654, 655 (1962)); Hansen v. Continental Insur. Co., 940 F.2d
971, 975 (5th Cir. 1991).
Needless to say, unsubstantiated assertions are not competent
summary judgment evidence. Celotex, 477 U.S. at 324. The party
opposing summary judgment is required to identify specific evidence
in the record and to articulate the precise manner in which that
evidence supports his or her claim. See Forsyth v. Barr, 19 F.3d
1527, 1537 (5th Cir.), cert. denied, 115 S. Ct. 195 (1994).
Charpentier first argues that he introduced evidence through
the testimony of Paul Denis, another contract worker, and Felix
Goodly, a Marathon employee, that Phillips employees were present
on the platform and were negligent in failing to secure the
plywood. According to Charpentier, this evidence raised a fact
dispute as to whether Phillips employees were involved. We
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disagree.
Although Denis maintained in his deposition that he saw
Phillips employees working with plywood on the deck below, Denis
further testified that the only reason he believed the men were
Phillips employees was because he saw Phillips stickers on their
hardhats. Phillips introduced documentary evidence that none of
its employees were present on that day. Phillips also introduced
an affidavit from an independent contractor stating that Phillips
employees passed out Phillips stickers to contractors who then
placed them on their hard hats. The district court correctly
concluded that Denis’s statements were not based on personal
knowledge and amounted to mere speculation.
Charpentier introduced Felix Goodly’s deposition testimony and
accompanying Marathon daily morning reports which indicate that one
Phillips employee was present on the platform that day. That is
the only piece of information one can glean from the reports. No
further evidence was introduced indicating whether that one
employee had anything to do with the plywood. The district court
noted that the lawsuit was filed in March 1996, the motion for
summary judgment was filed in the early part of 1996, the court
granted Charpentier an extension of time to conduct discovery to
respond to the motion for summary judgment, and the hearing on the
motion occurred in May 1997. After all that time, Charpentier
could not produce any evidence to connect Phillips with the injury
at issue. Charpentier’s introduction of the Denis testimony and
the Goodly records is not sufficient to prevent summary judgment.
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Alternatively, Charpentier contends that there is a genuine
issue of material fact in dispute regarding whether Omega’s
employees were actually the borrowed servants of Phillips.
Charpentier failed to introduce any evidence to support this
contention. Additionally, even assuming there was a fact dispute
as to whether Omega’s employees were the borrowed servants of
Phillips, we fail to see how that fact is material. Charpentier’s
Complaint never alleged that Phillips was vicariously liable for
the acts of Omega’s employees under the borrowed servant doctrine,2
and the record before us contains no evidence that the Omega
employees were negligent. R. Vol. 1:1-6. Charpentier’s Complaint
alleged that Phillips was vicariously liable due to the actions of
its own supervisory representative, Vance Steil (sic), and/or due
to the actions of its own workers or workers performing contract
services. Id.
Phillips can be liable for injuries resulting from the
negligent acts of an independent contractor (Omega) only if (1) the
liability arises from an ultrahazardous activity or (2) Phillips
retained operational control over Omega’s acts or expressly or
impliedly authorized those specific acts. See Coulter v. Texaco,
2
The borrowed servant doctrine usually arises in the context
of an affirmative defense whereby a general employer attempts to
avoid liability for the actions of its employee by asserting the
employee was loaned to another employer. See Benoit v. Hunt Tool
Co., 53 So.2d 137 (La. 1975); Billeaud v. Poledore, 603 so.2d 754
(La.App. 1st Cir.), writ denied, 608 So.2d 176 (La. 1992).
However, use of the borrowed servant doctrine as a sword, rather
than a shield, is not unprecedented. See Civello v. Johnson, 567
So.2d 643 (La.App. 4th Cir.), writ denied, 569 So.2d 987 (La.
1990).
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Inc., 117 F.3d 909, 911-12 (5th Cir. 1997). There is no claim that
the activity was ultrahazardous, thus we look to whether Phillips
retained operational control over Omega’s activities.
The legal relationship between Omega and Phillips is
determined from “the contract between them and from their
intentions in establishing and carrying out that relationship as
manifested in its performance and the surrounding circumstances.”
See Hickman v. Southern Pacific Transport Co., 262 So.2d 385, 390
(La. 1972). The only evidence Charpentier relied upon to defeat
summary judgment was the contract between Phillips and Omega. The
contract between Phillips and Omega provides in pertinent part:
Contractor shall be an independent contractor, and any
provisions of this Contract which may appear to give
Company or the Company Representative the right to direct
Contractor in the performance of the Work, or to exercise
a measure of control over the Work, shall be deemed to
mean, and shall mean, that Contractor shall follow the
desires of Company in the Work to be accomplished only
and not in the means whereby it is done. Contractor
shall have complete and authoritative control over the
Work as to the details of performing the Work.
Contract, General Conditions, ¶3.2. Charpentier points out that
the contract also provides for the designation of a Phillips
company representative and allows Phillips to remove an Omega
employee from the project if he is incompetent but does not allow
him to be fired from his employment with Omega. We find these
provisions insufficient to show that Phillips had operational
control over the details of Omega’s work. Indeed, the contract
belies such a contention. Omega had the responsibility for the
safety of its employees and retained the right to hire, fire, or
assign its workers. Omega was required to furnish at its expense
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all required form lumber and welding rod. Under the contract,
Omega kept all employment records with regard to its employees and
made all payments to all governmental agencies and third parties as
required by law including employment and income taxes. Omega also
was required to provide a competent offshore supervisor and any
necessary personnel to be in charge of the work. Omega controlled
the details of its work under the contract. Accordingly, the
judgment of the district court is affirmed.
AFFIRMED.
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