Case: 22-30420 Document: 00516640751 Page: 1 Date Filed: 02/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 9, 2023
No. 22-30420 Lyle W. Cayce
Clerk
Jerode Garner,
Plaintiff,
versus
Pontchartrain Partners, L.L.C.,
Defendant—Appellant,
versus
Z.E. Services, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-1179
Before Graves, Ho, and Duncan, Circuit Judges.
Per Curiam:*
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Pontchartrain Partners, LLC appeals the district court’s grant of
summary judgment to Z.E. Services, LLC in this action stemming from a
maritime personal injury suit and the borrowed servant defense. Because the
district court did not err, we AFFIRM.
FACTS AND PROCEDURAL HISTORY
Jerode Garner was injured while working as a deckhand aboard a small
tugboat, M/V MARY JANE, owned and operated by Pontchartrain
Partners. 1 The tugboat was being used in a Grand Isle breakwaters project in
Jefferson Parish, Louisiana. Pursuant to the project, Pontchartrain Partners
had entered into a Service Agreement for Z.E. Services (“Zealous”) to
provide a captain to operate the tug on navigable waters off the coast of
Louisiana. Captain Kevin Morgan was the Zealous employee provided to
Pontchartrain Partners to operate the tug. Nick Dufrene was the project
supervisor for Pontchartrain Partners.
Pontchartrain’s work on the project involved transporting rocks from
one end of the jobsite to the other on a barge hooked to the tug. Low Land
Construction Company, Inc. was the owner of a living-quarters barge
outfitted with an excavator that was also used on the project. The Low Land
excavator operator would pick up the rocks from a large rock barge and
transfer them to the barge hooked to the tug. Morgan would then navigate
the tug to the unloading site before returning for more rocks.
On January 13, 2020, as the barge attached to the tug was being
unloaded, Garner attempted to cross from the barge to the living-quarters
barge. The barges began to separate, and Garner fell into the water. Garner
filed suit against Pontchartrain Partners and Low Land, seeking damages for
1
The merits of the underlying suit are not at issue here.
2
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his alleged injuries based on various violations under maritime law by
Pontchartrain Partners and Low Land. Garner’s suit, in part, claimed that
the companies are vicariously liable for Morgan’s negligence. Garner’s
complaint was later amended to add Zealous as a defendant.
Zealous filed a cross-claim against Pontchartrain Partners, arguing
that the contract between the parties “included a standard ‘knock-for-knock’
indemnity agreement whereby Pontchartrain agreed to defend and indemnify
Zealous for injuries to any Pontchartrain employee.” Additionally, Zealous
asserted that, if it were to be held strictly liable for any reason, it was claiming
tort indemnity and contribution. Pontchartrain Partners later filed a
crossclaim against Low Land and Zealous, seeking indemnification and
contribution for amounts it paid to Garner.
Zealous subsequently moved for summary judgment on the basis that
Morgan was the borrowed employee 2 of Pontchartrain Partners at the time
of the incident. The district court agreed, and the motion was granted on
June 13, 2022. Pontchartrain Partners then filed this appeal.
STANDARD OF REVIEW
We review the district court’s grant of a motion for summary
judgment de novo, viewing all facts and evidence in the light most favorable
to the nonmoving party. Burell v. Prudential Ins. Co. of Am., 820 F.3d 132,
136 (5th Cir. 2016). Summary judgment is proper when “the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine
dispute of material fact exists if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Credeur v. La. through Office
2
Also referred to as borrowed servant herein.
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of the Att’y Gen., 860 F.3d 785, 791 (5th Cir. 2017) (internal marks and
citation omitted). We also review de novo a determination that an employee
is a borrowed servant. Gaudet v. Exxon Corp., 562 F.2d 351, 356 (5th Cir.
1977); see also Ruiz v. Shell Oil Co., 413 F.2d 310, 314 (5th Cir. 1969).
DISCUSSION
The issue here is whether Morgan was Pontchartrain Partners’
borrowed servant. Pontchartrain Partners asserts that the district court erred
in granting summary judgment because a borrowed employee relationship
could not be established under the nine factors set out in Ruiz. Those factors
are:
(1) Who has control over the employee and the work he is
performing, beyond mere suggestion of details or cooperation?
(2) Whose work is 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?
Mays v. Dir., Office of Workers’ Comp. Programs, 938 F.3d 637, 642 (5th Cir.
2019); see also Ruiz, 413 F.2d at 312-13.
Pontchartrain Partners asserts that these factors, as a whole, strongly
weigh against a finding that Morgan was its borrowed employee. We
disagree, as follows.
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(1) Control over employee
This court has said that this factor is the “central question in
borrowed servant cases.” Mays, 938 F.3d at 642 ) (citation omitted); see also
Guidry v. S. La. Contractors, Inc., 614 F.2d 447, 455 (5th Cir. 1980).
Pontchartrain Partners asserts that it “did not exercise authoritative
direction and control” over Morgan. Instead, it argues that Morgan’s day-
to-day instruction came from Low Land Construction, and that Morgan
himself determined how he navigated the tugboat or performed his work.
Pontchartrain Partners also points to Morgan’s deposition testimony
agreeing that he was always a Zealous employee throughout his tenure on the
project. Additionally, Pontchartrain Partners relies on Morgan’s experience
as a vessel captain as an indication that he required less supervision than, for
example, a laborer.
Pontchartrain Partners cites In re Suard Barge Services, Inc., No. 96-
3185, 1997 U.S. Dist. LEXIS 18864, 3 at *11 (E.D. La. Nov. 25, 1997), as
authority in its discussion of control, saying there was “no meeting of the
minds” here to support a borrowed servant finding. Not only is Suard non-
binding, but that court was referencing the third factor in which it found that
“[t]here was no agreement—written or oral, implicit or explicit” between
the two employers. Id. Suard is easily distinguished because there was an
agreement or meeting of the minds here, as Pontchartrain Partners concedes
pursuant to factor three.
Pontchartrain Partners conflates having control with the degree to
which it was necessary to exercise control. Further, the question is not
whether Morgan was an employee of Pontchartrain Partners, but rather
3
1997 WL 736693, at *4.
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whether he was a borrowed employee of Pontchartrain Partners. Despite
Morgan’s testimony that he interacted most often with the excavator
operator from Low Land (because their jobs intertwined), he repeatedly
testified that Nick Dufrene from Pontchartrain Partners oversaw the
operation. Dufrene held the daily safety briefings and provided daily
instructions. Morgan also testified that he did not take any instructions from
Zealous while at the Pontchartrain Partners’ jobsite. Rather, Morgan said he
was told by Zealous to pick up the tug, go to Grand Isle and work as directed
by Pontchartrain Partners. Morgan said that Pontchartrain Partners
controlled the entire job, including his portion.
Additionally, the Service Agreement said: “[Zealous’] services shall
be administered and approved by a designated [Pontchartrain Partners’]
employee.” The agreement included a provision allowing Pontchartrain
Partners to terminate the agreement for various reasons, including
“unacceptable performance.” The agreement also said that Zealous was
“cautioned to disregard guidance pertaining to the interpretation of specific
requirement to the contract or modifications to the contract, during the
period of performance, from any source other than” Pontchartrain Partners.
Moreover, this court has previously addressed similar arguments. In
Melancon v. Amoco Production Co., 834 F.2d 1238 (5th Cir. 1988), this court
concluded that, “[t]he fact that Melancon had specialized welding skills he
utilized in most of his work and none of the Amoco personnel had similar
welding expertise does not bar a finding of ‘borrowed employee’ status.” Id.
at 1245 (citation omitted). The same applies to Morgan’s expertise and
experience in operating a tugboat.
Accordingly, this factor weighs heavily in favor of a borrowed
employee relationship.
(2) Whose work being performed
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Pontchartrain Partners concedes that Morgan was performing its
work. Thus, this factor weighs in favor of a borrowed employee relationship.
(3) Agreement between employers
Pontchartrain Partners concedes that there was a Service Agreement,
discussed above, but disputes the effect of the agreement as it pertains to
other factors as discussed herein. This factor weighs in favor of a borrowed
servant relationship.
(4) Acquiescence
Pontchartrain Partners argues that this factor is neutral because
Morgan testified that he was always an employee of Zealous, and his
employment never transferred to Pontchartrain Partners. However, that is
not the standard for acquiescence.
In Melancon, this court concluded that Melancon had acquiesced,
saying that he knew when he began work at the new employer, knew what his
work conditions would be, and made no complaints. Id., 834 F.2d at 1246.
In a more recent case, this court said: “The question is not whether [Morgan]
agreed to become [Pontchartrain Partners’] employee but whether he was
aware of his work conditions and chose to continue working in them.” Mays,
938 F.3d at 645 (internal marks and citation omitted). This factor weighs in
favor of a borrowed servant relationship.
(5) Termination
Pontchartrain Partners asserts that Zealous never terminated its
relationship with Morgan, and this factor weighs against borrowed servant
status.
This court has said: “This factor does not require a lending employer
to sever completely its relationship with the employee, because such a
requirement would effectively eliminate the ‘borrowed employee’
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doctrine.” Melancon, 834 F.2d at 1246. “The emphasis when considering
this factor should focus on the lending employer’s relationship with the
employee while the borrowing occurs.” Capps v. N.L. Baroid-NL Indus., Inc.,
784 F.2d 615, 618 (5th Cir. 1986). In Melancon, this court concluded that the
lending employer’s control was “nominal at most” while he worked for the
borrowing employer. 834 F.2d at 1246. Here, Zealous’ control over Morgan
was also nominal at most. There is no evidence that Zealous was exercising
any control over Morgan’s daily performance or duties while Morgan was
working on the Pontchartrain Partners’ job.
This factor weighs in favor of a borrowed servant relationship.
(6) Tools and place
Pontchartrain Partners concedes that this factor weighs in favor of a
borrowed servant status but asserts it should be of little weight because,
under the agreement, Zealous would not have been in a position to provide
the materials or tools (the vessel and oil) needed for the job. We agree that
this factor weighs in favor of a borrowed servant relationship.
(7) Time period
Pontchartrain Partners argues that the three-month time period that
Morgan worked as its captain was neither substantial nor insubstantial, and
this factor should be neutral. We agree that it is neutral. See Mays, 938 F.3d
at 646.
(8) Right to discharge
Pontchartrain Partners characterizes Morgan’s testimony as meaning
he would voluntarily leave the job site if Pontchartrain Partners was unhappy
with his work. Pontchartrain Partners argues, “[t]his voluntary undertaking
does not translate to a right to terminate employment,” and points to its own
declaration that it did not retain any right to terminate Morgan.
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That interpretation contradicts the Service Agreement, as quoted
above, and the actual effect of the relevant provision. The agreement clearly
provides that Pontchartrain Partners had the right to terminate Morgan as its
borrowed employee. Pontchartrain Partners’ perceived inability to terminate
Morgan as an employee of Zealous has no bearing. This factor weighs in
favor of a borrowed servant relationship.
(9) Payment
Pontchartrain Partners asserts that Zealous was responsible for paying
Morgan, and this factor weighs against borrowed servant status. But, as the
district court found, Morgan’s daily rate was included in the contract price.
The agreement said that Zealous would provide a captain to Pontchartrain
Partners for $550 per day, “inclusive of all wages, per diem and insurances.”
At the time of the agreement, Morgan was making approximately $450 per
day. Here, the payments were indirectly made to Morgan through Zealous
but were based on the rate for a full day’s work, plus per diem and insurance.
This court has previously concluded that such payments are consistent with
a borrowed servant relationship. See Capps, 784 F.2d at 618.
These factors overwhelmingly support the district court’s ruling.
Finally, Pontchartrain Partners asserts that summary judgment was
inappropriate because there is a factual dispute as to whether Morgan was a
borrowed employee. However, this court has repeatedly said that the issue
of whether a relationship of borrowed employee exists is a question of law to
be decided by the court, not the jury. See Gaudet, 562 F.2d at 357-58; Ruiz,
413 F.2d at 314. Further, Pontchartrain Partners “cannot generate a factual
dispute merely by contesting the conclusion reached by the court, rather they
must show that genuine disputes exist over enough determinative factual
ingredients to make a difference in this result.” Gaudet, 562 F.2d at 358.
Pontchartrain Partners is unable to do so.
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For these reasons, we AFFIRM.
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