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this opinion should not be published and is not precedent except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.
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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.
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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
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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.
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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
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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
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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?
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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.
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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
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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.
2. Whose work was being performed?
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
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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
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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.
4. Did the employee acquiesce in the new work situation?
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
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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.
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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?
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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
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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.
9. Who had the obligation to pay the employee?
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
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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.
Phillips dep. p. 39.
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.
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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.
2. Whose work was being performed?
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
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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.
4. Did the employee acquiesce in the new work situation?
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.
6. Who furnished the tools and place for performance?
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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
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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.
9. Who had the obligation to pay the employee?
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.
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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
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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
borrowed employee.
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
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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
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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)
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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
factors support, and the evidence provided this Court
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
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
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
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
undisputed that the platform is located more than three miles off
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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.
It is undisputed that at the time of LeMaire's alleged
accident, both D&C and Steen were under contract with Texaco to
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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
Steen supervisors were sent out to any of the Texaco jobs.
Phillips dep. p. 39.
LeMaire and Phillips performed Texaco's work. Ardoin &
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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
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
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?
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,
-36-
676 (5th Cir. 1993)). The Fifth Circuit "has held many times
that no single factor is determinative." Id. at 106.4
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.
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
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
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.
2. Whose work was being performed?
-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.
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
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
-39-
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
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
-40-
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.
4. Did the employee acquiesce in the new work situation?
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
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
-41-
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.
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
-42-
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?
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
-43-
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
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".
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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.
9. Who had the obligation to pay the employee?
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
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
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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.
Phillips dep. p. 39.
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.
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.
2. Whose work was being performed?
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?
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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
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.
4. Did the employee acquiesce in the new work situation?
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
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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.
6. Who furnished the tools and place for performance?
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?
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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
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.
9. Who had the obligation to pay the employee?
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.
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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.
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.
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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
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
borrowed employee.
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
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§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
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
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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
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
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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)
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
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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.
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
factors support, and the evidence provided this Court
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
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defendants, Danos & Curole Marine Contractors, Inc. and Charles
Phillips dismissing the complaint of Shawn LeMaire against D&C
and Phillips.
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
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.
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