Posey v. National Oilwell Varco, L.P., No. 2:2015cv01021 - Document 63 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting National Oilwell's 47 Motion for Summary Judgment Pursuant to the Borrowed Employee Doctrine. Plaintiff's claims against National Oilwell are DISMISSED WITH PREJUDICE. FURTHER ORDER that American Interstate's claims in its Complaint-in-Intervention are DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 6/21/2016. (tsf)
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Posey v. National Oilwell Varco, L.P. Doc. 63 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A KEVIN POSEY, Plain tiff CIVIL ACTION VERSU S N O. 15-10 2 1 N ATION AL OILW ELL VARCO, L.P., D e fe n d an t SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court is a m otion for sum m ary judgm ent filed by Defendant, National Oilwell Varco, L.P. (“NOV”). 1 NOV seeks sum m ary judgm ent pursuant to the Fifth Circuit’s “borrowed-em ployee doctrin e.” Plaintiff Kevin Posey and Intervenor-Plaintiff Am erican Interstate Insurance Com pany oppose the m otion. 2 For the reasons that follow, the m otion for sum m ary judgm ent is GRAN TED . BACKGROU N D This is a civil action in volving the personal-injury claim s of Plaintiff Kevin Posey. According to Plaintiff, he was injured on or about April 7, 20 14, while working for Original USA General Labor, LLC (“Original USA”), at NOV’s facility in Port Fourchon, Louisiana, “when a piece of unsecured floor grating gave way, causing him to becom e pinned between the hole in the grating and a large drum .”3 Plaintiff argues that, as a result of the incident, he “sustain ed severe and disabling injuries including, but not lim ited to, a right fem oral shaft fracture, torn m edial m en iscus and injuries to his lum bar spine.”4 Plaintiff filed this action against NOV on April 1, 20 15. 5 1 R. Doc. 47. R. Docs. 48, 50 . 3 R. Doc. 11 at 2 (Second Am ended Com plaint). 4 Id. 5 R. Doc. 1. Since the filing of his initial com plaint, Plain tiff has filed two am ended com plaints, with the m ost recent, operative am ended com plaint filed on April 9, 20 15. See R. Docs. 5, 11. 2 1 Dockets.Justia.com NOV filed a m otion for sum m ary judgm ent on March 31, 20 16, seeking the dism issal of this action with prejudice. NOV contends that, under the Fifth Circuit’s borrowed-em ployee doctrine, Plaintiff Kevin Posey was a borrowed em ployee of NOV at the tim e of the inciden t in which he was injured, which renders NOV im m une from tort liability under the Longshore Harbor Workers Com pensation Act (“LHWCA”), 33 U.S.C. § 90 5(a). 6 In respon se, Plaintiff filed an opposition on April 12, 20 16, arguing sum m ary judgm ent is inappropriate because genuin e issues of m aterial fact rem ain in dispute with respect to the borrowed-em ployee issue. 7 The next day, on April 13, 20 16, IntervenorPlaintiff Am erican Interstate Insurance Com pany (“AIIC”)—Original USA’s workers’ com pensation insurer 8 —filed an opposition to the m otion on sim ilar grounds. 9 SU MMARY J U D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”10 “An issue is m aterial if its resolution could affect the outcom e of the action.”11 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing 6 R. Doc. 47-1 at 6. R. Doc. 48 at 1. 8 AIIC intervened as a plaintiff on J uly 1, 20 15. See R. Doc. 27. The com plaint-in-in tervention states: “At all m aterial tim es pertin ent to this case, AIIC had issued, and had in full force and effect, a policy of workers’ com pensation insurance in favor of [Original USA], under which policy of insurance AIIC provided workers’ com pensation coverage for the claim of work-related injury allegedly sustained by Plaintiff.” R. Doc. 27 at 2. AIIC contends that, as a result, it is subrogated legally, equitably, and/ or contractually “to the rights of Plaintiff, to the extent of all am ounts paid by AIIC to and/ or on his behalf, an d also to the extent any additional am ounts which AIIC m ay be presently obligated or m ight in the future becom e obligated to pay to or on behalf of Plaintiff.” R. Doc. 27 at 3. Therefore, AIIC seeks “reim bursem ent for all am ounts AIIC has paid to and/ or on behalf of Plaintiff, together with legal interest from the date of judicial dem and until paid, and any and all expenses,” in addition to “a credit against future liability for workers’ com pensation benefits, of any kind whatsoever, against any recovery by the Plaintiff in the principal action.” R. Doc. 27 at 3– 4. The instant m otion seeks the dism issal of AIIC’s com plaint-in-intervention , as explained infra. 9 R. Doc. 50 . 10 F ED . R. CIV. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 11 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 7 2 the evidence.”12 All reasonable inferences are drawn in favor of the non-m oving party. 13 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 14 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”15 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 16 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to establish an essential elem ent of the non-m ovant’s claim . 17 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 18 Thus, the non-m oving party m ay defeat a m otion for 12 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8 ). See also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 13 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 14 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 15 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 16 Celotex, 477 U.S. at 322– 24. 17 Id. at 331– 32 (Bren nan, J ., dissentin g). 18 See id. at 332. 3 sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”19 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”20 LAW AN D AN ALYSIS NOV’s m otion is prem ised, as an initial m atter, on Plaintiff Kevin Posey’s status as a longshorem an under the Longshore Harbor Workers Com pensation Act (“LHWCA”). 21 NOV argues that, because Plaintiff is a longshorem an and has been receiving workers’ com pensation under the LHWCA, and because Plaintiff is a borrowed em ployee of NOV, Plaintiff’s claim s are “barred as a m atter of law” under the LHWCA. 22 Whether Plaintiff is a longshorem an under the LHWCA involves a two-part test: a “situs” test and a “status” test. 23 “The ‘situs’ test requires that the em ployee be injured on navigable waters of the United States,” and “[t]he ‘status’ test requires that the claim ant be engaged in m aritim e em ploym ent at the tim e of the injury.”24 Plaintiff does not disagree with NOV’s argum ent 19 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 20 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 21 R. Doc. 47-1 at 6. 22 R. Doc. 47-1 at 6. 23 See, e.g., Johnson v. Abe’s Boat Rentals, Inc., No. 14-2213, 20 16 WL 12798 2, at *3 (E.D. La. J an. 12, 20 16). 24 Id. (citing Bienvenu v. Texaco, Inc., 164 F.3d 90 1, 90 4 (5th Cir. 1999)). 4 that he was a longshorem an at the tim e of the incident in which he was injured. 25 Plaintiff’s status as a longshorem an under the LHWCA, however, is an issue that the Court need not decide. Plaintiff is being paid worker’s com pen sation benefits pursuant to either the LHWCA or state workers’ com pensation law. 26 “Both federal and Louisiana law use the sam e criteria for determ ining whether an em ployee is a borrowed em ployee.”27 That is, irrespective of whether Plaintiff qualifies as a longshorem an under federal law, the test used to determ ine borrowed-em ployee status under the LHWCA is identical to the test used to determ ine borrowed-em ployee status under Louisiana state law. 28 The Court now turns to the substantive issue of whether Plaintiff was a borrowed em ployee of NOV at the tim e of the incident in which he was injured. If the Plaintiff was NOV’s borrowed em ployee, NOV is vested with tort im m unity, and the Court m ust dism iss Plaintiff’s claim s against NOV. 29 Whether Plaintiff was a borrowed em ployee of NOV is a question of law, 30 and “if sufficient basic factual ingredients are undisputed, the court m ay grant sum m ary judgm ent.”31 Borrowed- 25 See generally R. Doc. 48 . NOV contends Plaintiff is a longshorem an and is being paid workers’ com pensation benefits under the LHWCA. R. Doc. 47-1 at 6. However, Plaintiff’s claim s in this m atter were filed pursuant to Louisiana state law and the Court’s diversity-of-citizenship jurisdiction . See R. Docs. 1, 5, 11. Moreover, AIIC’s com plaintin-intervention does not cite the law, whether federal or state, under which Plaintiff is bein g paid worker’s com pensation benefits. See R. Doc. 27. Although NOV argues that Plaintiff is a lon gshorem an and is bein g paid worker’s com pensation benefits under the LHWCA, NOV acknowledges that Plaintiff m ay not be a longshorem an and that, if he is not, Plaintiff’s benefits are bein g paid under state workers’ com pensation law. R. Doc. 47-1 at 6 n .7. 27 Capps v. N .L. Baroid-N L Indus., Inc., 784 F.2d 615, 616 (5th Cir. 1986) (citing Lorton v. Diam ond M Drilling Co., 540 F.2d 212, 213 n.1 (5th Cir. 1976) (per curiam ) (“The plaintiff alleged jurisdiction under the Longshorem en’s and Harbor Workers’ Com pensation Act, 33 U.S.C. § 90 5(b). Subsequently, plaintiff am ended his com plaint to allege diversity of citizenship. We shall assum e the latter is the sole basis for federal jurisdiction . In any event, the criteria to be used under the borrowed servant doctrine are the sam e in Louisiana as in federal law.”)). 28 English v. W ood Group PSN , Inc., No. 15-568, 20 15 WL 50 61164, at *14 (E.D. La. Aug. 25, 20 15) (citation s om itted) (“The tort im m unity under the LH WCA has been expanded to include ‘borrowing em ployers’ under the borrowed em ployee doctrine.”). 29 Id. (“If the Plaintiff is W & T Offshore’s borrowed em ployee, W & T Offshore will thus be vested with § 90 5(a) tort im m unity.”). 30 Delahoussay e v. Perform ance Energy Servs, L.L.C., 734 F.3d 389, 393 (5th Cir. 20 13). 31 Capps, 784 F.2d at 617. 26 5 em ployee status is governed by the Fifth Circuit’s decision in Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969). In Ruiz, the Fifth Circuit identified nine factors to be used in determ ining whether an em ployee can be considered a borrowed em ployee of another entity. 32 The factors to be considered include: (1) Who had control over the em ployee and the work he was perform ing, beyond m ere suggestion of details or cooperation? (2) Whose work was being perform ed? (3) Was there an agreem ent, understandin g, or m eeting of the m inds between the origin al and the borrowing em ployer? (4) Did the em ployee acquiesce in the new work situation? (5) Did the original em ployer term inate his relationship with the em ployee? (6) Who furnished the tools and place for perform ance? (7) Was the new em ploym ent over a considerable length of tim e? (8 ) Who had the right to discharge the em ployee? (9) Who had the obligation to pay the em ployee? 33 “While the courts do not use a fixed test and do not decide the issue based on one factor, the courts place the m ost em phasis on the first factor, control over the em ployee.”34 The Court considers each Ruiz factor, in turn, below. 1. W ho has control over the em ploy ee and the w ork he is perform ing? As explained above, although no single factor or com bination of factors is dispositive, the Fifth Circuit “has considered the first factor—control—to be the central 32 Ruiz, 413 F.2d at 312– 13. Melancon v. Am oco Prod. Co., 834 F.2d 1238, 1244 (5th Cir.), m odified on reh’g, 841 F.2d 572 (5th Cir. 1988 ) (citin g Ruiz, 413 F.2d at 312– 13; Capps, 78 4 F.2d at 616– 17; W est v. Kerr-McGee Corp., 765 F.2d 526, 530 (5th Cir. 1985); Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 376 (5th Cir. 1985); Hall v. Diam ond M. Co., 732 F.2d 1246, 1249 (5th Cir. 1984); Gaudet v. Exxon, 562 F.2d 351, 355 (5th Cir. 1977)). 34 Capps, 784 F.2d at 617 (citing Ruiz, 413 F.2d at 312; Hebron v. Union Oil Co. of Ca., 634 F.2d 245, 247 (5th Cir. 1981) (per curiam )). 33 6 factor.”35 This factor requires the Court to distinguish “between authoritative direction and control, and m ere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.”36 NOV contends it had authoritative direction and control over Plaintiff because, for exam ple, “NOV m anagers controlled and directed his day-to-day working orders; and in fact any NOV em ployee whatsoever (m anager or otherwise) could give him direction/ instruction on what to do.”37 Moreover, NOV points out that “[t]here were never any Original USA supervisors/ m anagers present during Plaintiff’s work for NOV, nor were there even any other Original USA personnel that worked alongside Plaintiff.”38 NOV also notes that Plaintiff “was assigned to a ‘crew’ with two other NOV em ployees and a m anager. He participated in NOV safety m eetings and signed off on NOV J SAs.”39 In response, Plaintiff agrees that (1) his “work was directed exclusively by NOV m anagers,”40 (2) “any NOV em ployee at all (m anager or otherwise) had authority to direct Plaintiff’s work,”41 (3) “[n]o Original USA supervisors were ever present at the NOV facilities during Plaintiff’s work shifts, and Plaintiff was the only Original USA em ployee at the NOV facilities,”42 (4) “Plaintiff slept at the NOV facilities when he was on shift, and if he needed a day off for a doctor’s appointm ent, he had to get approval from NOV,”43 and (5) “NOV m anagers/ personnel ran all the safety m eetings and job safety/ hazard an alyses that 35 Brow n v. Union Oil Co. of Cal., 984 F.2d 674, 677 (5th Cir. 1993) (per curiam ). Ruiz, 413 F.2d at 313 (internal quotation m arks om itted) (quotin g Standard Oil Co. v. Anderson , 212 U.S. 215, 222 (190 9)). 37 R. Doc. 47-1 at 16. 38 R. Doc. 47-1 at 16. 39 R. Doc. 47-1 at 16. 40 R. Doc. 47-2 at 2, ¶9; R. Doc. 48-4 at 3, ¶9. 41 R. Doc. 47-2 at 2, ¶10 ; R. Doc. 48-4 at 3, ¶10 . 42 R. Doc. 47-2 at 2, ¶11; R. Doc. 48-4 at 3, ¶11. 43 R. Doc. 47-2 at 2, ¶12; R. Doc. 48-4 at 3, ¶12. 36 7 Plaintiff participated in , using NOV-generated form s that Plaintiff signed along with NOV personnel.”44 In Melancon v. Am oco Production Co., the Fifth Circuit affirm ed the district court’s finding, am on g others, that the control factor weighed in favor of borrowedem ployee status. 45 In particular, the Fifth Circuit concluded that Am oco, the alleged borrowing em ployer, “clearly had control” over the plaintiff because he “took orders” from Am oco personnel “who told him what work to do, and when and where to do it.”46 The Fifth Circuit further explain ed that the lending em ployer in Melancon “gave no instructions” to the plaintiff “except to go to the Am oco field and perform the work requested by Am oco personnel.”47 Sim ilarly, in Billizon v. Conoco, Inc., the Fifth Circuit again affirm ed the district court’s finding that the control factor weighed in favor of borrowed-em ployee status. 48 In support, the Fifth Circuit explain ed that the plaintiff was regularly supervised by an em ployee of Conoco, the alleged borrowing em ployer. 49 Moreover, the plaintiff attended “daily tailgate m eetings” conducted by Conoco personnel to “discuss safety and workrelated issues.”50 The Fifth Circuit in Billizon also noted that no supervisors from the plaintiff’s lending em ployer were in the field to oversee his work. 51 In this case, Plaintiff Kevin Posey was supervised by em ployees and/ or m anagers of NOV, not Original USA. In fact, no one from Original USA worked alongside Plaintiff 44 R. Doc. 47-2 at 2, ¶13; R. Doc. 48-4 at 3, ¶13. Melancon, 834 F.2d at 1244– 45. 46 Id. at 1245. 47 Id. 48 Billizon v. Conoco, Inc., 993 F.2d 10 4, 10 5 (5th Cir. 1993). 49 Id. 50 Id. 51 Id. 45 8 at the NOV facilities, neither as his peer, his supervisor, nor his m anager. Instead, Plaintiff’s entire tenure with Original USA was spent working at NOV facilities where he took orders, directions, and instructions from NOV personnel and NOV personn el alone. 52 Furtherm ore, as in Billizon, Plaintiff attended daily safety m eetings which were led by NOV supervisors, and Plaintiff regularly com pleted J SAs for NOV. 53 From these facts, and in light of Fifth Circuit case law detailed above, it is clear that NOV had authoritative control over Plaintiff and that Plaintiff took direction from NOV personnel. Although Plaintiff concedes that he “took day to day direction from NOV personnel at their facility,” Plain tiff nevertheless argues that Original USA controlled his work, which weighs against a finding that Plaintiff was a borrowed em ployee of NOV. 54 Plaintiff points to the contract between NOV and Original USA, the Tem porary Em ploym ent Services Agreem ent (“TESA”), as support for the position that he was subject to the direction and control of Original USA. 55 The TESA states that Original USA shall “[a]ssum e the responsibility of hiring, firing and disciplining em ployees,” which, according to the Plaintiff, “expresses a strong assertion of future com pliance and an intent that hiring, firing and disciplining are to rem ain within the param eters of Origin al USA’s exclusive control.”56 What Plaintiff fails to consider, however, are the provisions in the TESA that expressly state that NOV is responsible for the “direction and control” of the day-to-day work of Original USA personnel working at NOV facilities – including the “right to discharge” and “right to reassign” Original USA personnel from NOV worksites. 57 52 R. Doc. 47-2 at 2, ¶9; R. Doc. 48-4 at 3, ¶9. See also R. Doc. 47-2 at 2, ¶10 ; R. Doc. 48-4 at 3, ¶10 ; R. Doc. 47-2 at 2, ¶11; R. Doc. 48-4 at 3, ¶11. 53 R. Doc. 47-2 at 2, ¶13; R. Doc. 48-4 at 3, ¶13. 54 R. Doc. 48 at 5– 6. 55 R. Doc. 48 at 5– 6. 56 R. Doc. 48 at 5– 6. 57 R. Doc. 47-2 at 1, ¶3; R. Doc. 48-1 at 1, ¶3. See also R. Doc. 47-4 at 5, ¶8. 9 Even if Origin al USA retained the express right to hire, fire, and discipline its em ployees as stated in the TESA, this does not lead to the conclusion that Plaintiff was, under the Ruiz test, subject to the authoritative direction and control of Original USA. In Kindred v. Blake International Holdings, L.L.C., a court in this district faced sim ilar facts and concluded that, even where the lending em ployer retained som e sort of authority over the em ployee, it was clear that the borrowing em ployer had “authoritative direction and control” over the em ployee. 58 In Kindred, the em ployee (1) “received his daily work assignm ents” from the borrowing em ployer’s personnel, (2) was directly supervised by the borrowing em ployer’s personnel, and (3) had “little contact” with his lending em ployer during the “nearly two years” he worked on the borrowing em ployer’s oil-andgas production platform . 59 There was also evidence, however, that the em ployee attended “sporadic safety training classes” with his lending em ployer and received “som e postaccident direction” from his lending em ployer.”60 Nevertheless, the Kindred court concluded that “those facts do not preclude a finding of borrowed em ployee status when [the borrowing em ployer’s] personnel told him ‘what work to do, and when an d where to do it.’”61 The court further found that, even where the lending em ployer retain ed som e authority over the em ployee, the em ployee was subject to the “authoritative direction and control” of the borrowing em ployer because “the supervision and instruction of [the borrowing em ployer] rose above ‘m ere suggestion of details or cooperation.’”62 In this case, the undisputed facts establish that (1) Plaintiff was directly supervised by NOV personnel at all tim es, (2) Plaintiff attended NOV-led safety m eetings on a daily 58 Kindred v. Blake Intern. H oldings, L.L.C., 8 0 5 F. Supp. 2d 278, 282 (E.D. La. 20 11) (citations om itted). Id. 60 Id. 61 Id. 62 Id. 59 10 basis, (3) Plaintiff slept at NOV facilities when on shift, (4) Plaintiff was required to get approval from NOV personnel to go offsite to conduct personal business and attend doctor’s appointm ents, and (5) Plaintiff had little-to-no interaction with Original USA personnel while working at NOV facilities, where he worked for the entirety of his tenure with Origin al USA. Even if Origin al USA retained som e lim ited authority over Plaintiff, the Court finds as a m atter of law that Plaintiff was subject to the authoritative direction and control of NOV. Accordingly, the Court finds that this factor weighs in favor of borrowed-em ployee status. 2. W hose w ork is being perform ed? The parties agree that Plaintiff perform ed NOV’s work and only NOV’s work. 63 Plaintiff specifically agrees that this factor weighs in favor of borrowed-em ployee status. 64 It is undisputed that “[a]ll of Plaintiff’s work at the NOV facilities was NOV’s work, perform ed at the sole direction of NOV m anagers/ personnel, for the benefit of NOV and/ or NOV’s custom ers.”65 This factor supports a finding that Plaintiff was a borrowed em ployee 0 f NOV. 3. W as there an agreem ent betw een the original and borrow ing em ploy er? “In deciding this factor, courts have looked to contractual provisions and the behavior of the parties to determ ine whether an understanding existed.”66 In this case, NOV and Original USA executed a Tem porary Em ploym ent Services Agreem ent (“TESA”) on Novem ber 23, 20 14, pursuant to which Original USA supplied workers to work at NOV’s facilities. 67 The parties agree “[t]he TESA expressly states that NOV is responsible 63 R. Doc. 47-2 at 3, ¶19; R. Doc. 48-4 at 5, ¶19; R. Doc. 48 at 6. R. Doc. 48 at 6. 65 R. Doc. 47-2 at 3, ¶19; R. Doc. 48-4 at 5, ¶19. 66 LeBlanc v. AEP Elm w ood, LLC, 946 F. Supp. 2d 546, 551 (E.D. La. 20 13) (citin g Brow n, 984 F.2d at 677). 67 The TESA is attached to NOV’s m otion as Record Docum ent 47-4. 64 11 for the ‘direction and control’ of the day-to-day work of the Original USA em ployees during their work at NOV facilities – including ‘the right to discharge’ and ‘the right to reassign’ the Origin al USA personn el from the NOV worksite.”68 Based on the TESA and its provisions alone, this factor weighs in favor of borrowed-em ployee status. However, the Court’s analysis with respect to this Ruiz factor does not end here. Plaintiff points to a March 3, 20 10 letter from Original USA to NOV as evidence that the parties had another understanding of their relationship and Plaintiff’s em ploym ent status. 69 This letter, which pre-existed the TESA that the parties entered into on Novem ber 23, 20 14, contains a section titled “Independent Contractor,” which provides, in part, that “Original USA General Labor, LLC is the em ployer of all personnel supplied by them ” and NOV “agrees not to hire, utilize, consult with or otherwise take advantage of the services of any personnel placed at their com pany by Original USA.”70 Plaintiff m aintains that, pursuant to the March 3, 20 10 letter, he was an independent contractor and was not an em ployee of NOV in any respect. 71 Plaintiff adm its that the TESA, which consum m ated the parties’ agreem ent an d cam e after the March 3, 20 10 letter, does not contain an indepen dent-contractor provision but, instead, is silent on the issue. 72 In sum , Plaintiff relies on this letter to create a genuine issue of m aterial fact with respect to this Ruiz factor. As an initial m atter, the Court first notes that the March 3, 20 10 letter is not com petent sum m ary judgm ent evidence. The letter is unauthenticated and is hearsay. 68 R. Doc. 47-2 at 1, ¶3; R. Doc. 48-4 at 1, ¶3. See also R. Doc. 47-4 at 5, ¶8. R. Doc. 48 at 7– 8; R. Doc. 48-5 at 1– 2. 70 R. Doc. 48-3 at 2. 71 R. Doc. 48 at 7. 72 R. Doc. 48 at 7– 8. 69 12 Moreover, according to NOV, the letter was not previously produced during discovery. 73 For the sake of argum ent, assum ing the letter is com petent sum m ary judgm ent eviden ce, NOV relies on the declaration of Mike Savoie, NOV’s Director of the HR Services Group, in which Savoie authenticated the TESA, into which the parties entered after the March 3, 20 10 letter, as “the only operative agreem ent between NOV and Original USA that was in effect as of the April 7, 20 14 date of the incident alleged in this case.”74 Plaintiff has not rebutted or contradicted NOV’s position that the Novem ber 23, 20 14 TESA superseded the March 3, 20 10 letter with com petent sum m ary judgm ent evidence of his own. Even further, assum ing (1) the letter is com petent sum m ary judgm ent evidence, and (2) it was not superseded by the TESA, Plaintiff’s reliance on the letter fails to create a genuine issue of m aterial fact with respect to the third Ruiz factor. The Fifth Circuit and the courts within it have repeatedly held that “[t]he reality at the worksite and the parties’ actions in carrying out a contract . . . can im pliedly m odify, alter, or waive express contractual provisions.”75 “Obviously parties to a contract cannot autom atically prevent a legal status like ‘borrowed em ployee’ from arising m erely by saying in a provision in their contract that it cannot arise.”76 In this case, although the March 3, 20 10 letter contains an independent-contractor provision, the reality at NOV’s worksites was m uch different. As stated at length above, NOV exercised direct supervision and control over Plaintiff during his four-year tenure with Original USA, all of which was spent at NOV facilities. As a result, the Court finds that this factor weighs in favor of borrowed-em ployee status. 73 R. Doc. 54 at 2. R. Doc. 47-4 at 1 (Declaration of Mike Savoie). 75 See, e.g., Melancon, 834 F.2d at 1245. 76 Id. 74 13 4. Did the em ploy ee acquiesce? “The focus of this factor is whether the em ployee was aware of his work conditions and chose to continue working in them .”77 In Brow n v. Union Oil Co. of California, the Fifth Circuit noted that the em ployee “worked, slept[,] and ate in [the borrowing em ployer’s] field for a m onth prior to his accident. Although m any of our cases affirm ing borrowed servant status have involved longer periods of work, one m onth is a sufficient am ount of tim e for [the em ployee] to appreciate the new work conditions.”78 In LeBlanc v. AEP Elm w ood LLC, a court in this district provided further insight into this factor, explaining that “Plaintiff worked at the AEP facility for seven m onths— giving him enough tim e to understand the work conditions. This is sufficient to support borrowed em ployee status.”79 In this case, Plaintiff worked at NOV facilities for the entirety of his tenure with Original USA, which was roughly four years, m uch longer than the one-m onth and sevenm onth term s in Brow n and LeBlanc, respectively. Also, as in Brow n, it undisputed that “Plaintiff slept at the NOV facilities when he was on shift.”80 It is also undisputed that “Plaintiff considered the NOV personnel to be his co-workers and friends, and testified that he ‘loved’ working at NOV and would undoubtedly have continued working there but for his accident.”81 It is clear that Plaintiff was aware of his work conditions and chose to continue working in them . 77 Brow n , 984 F.2d at 678. Id. (citing Melancon, 834 F.2d at 1241 (5 years); Alexander v. Chevron U.S.A., 8 0 6 F.2d 526, 527 (5th Cir. 1986) (approxim ately 1 year); Gaudet, 562 F.2d at 355 (approxim ately 17 years); but see Capps, 784 F.2d at 616 (1 day)). 79 LeBlanc, 946 F. Supp. 2d at 552. 80 R. Doc. 47-2 at 2, ¶12; R. Doc. 48-4 at 3, ¶12. 81 R. Doc. 47-2 at 3, ¶20 ; R. Doc. 48-4 at 5, ¶20 . 78 14 Nevertheless, in opposition to NOV’s m otion, Plaintiff argues “he n ever acquiesced in being NOV’s em ployee.”82 Plaintiff notes he was “repeatedly offered to ‘convert’ to being an NOV em ployee and repeatedly refused this offer . . . because that would allow NOV to transfer him to other facilities and he wanted to stay in the Fourchon area.”83 According to Plaintiff, he “was aware of the advantages and disadvantages of working as a direct em ployee of NOV and he declined to do so. Thus, he cannot have acquiesced in a borrowed em ployee relationship.”84 NOV does not dispute that Plaintiff refused its offers to becom e a direct em ployee of NOV on certain occasions, arguing instead that whether or not Plaintiff refused its offers of perm anent em ploym ent is not determ inative of whether Plaintiff acquiesced for purposes of this Ruiz factor. 85 The Court agrees with NOV. It is indisputably clear that Plaintiff was aware of his work conditions and chose to continue working in them , which is the operative fram ework for determ ining whether an em ployee acquiesced under Ruiz. In Vincent v. Fieldw ood Energy , L.L.C., a court in this district addressed a sim ilar situation where the em ployee enjoyed working at the alleged borrowing em ployer’s facilities but, at the sam e tim e, did not consider him self to be a direct em ployee of the borrowing em ployer: Here, Vincent worked, slept, and ate offshore at Fieldwood's facilities for four m onths. (Rec. Doc. 11– 5 at 7). During this tim e, he attended daily m eetings and received orders from Fieldwood em ployees. Vin cent argues that he did not acquiesce because, while he was satisfied with his working conditions, he did not consider him self a Fieldwood em ployee. This, however, is not the focus of this factor. The focus is whether he was aware of the conditions and chose to continue working. Both parties assert that Vincent was satisfied with his working conditions at Fieldwood. (Rec. Doc. 11– 2 at 11; Rec. Doc. 12 at 7). Thus, this factor supports borrowed-em ployee status. 86 82 R. Doc. 48 at 8 . R. Doc. 48 at 8 . 84 R. Doc. 48 at 8 . 85 R. Doc. 54 at 9– 10 . 86 Vincent v. Fieldw ood Energy , L.L.C., No. 14-2885, 20 15 WL 6758 269, at *4 (E.D. La. Nov. 5, 20 15). 83 15 The Court finds that, because Plaintiff was aware of his work conditions and chose to continue working in them , this factor weighs in favor of borrowed-em ployee status. 5. Did the original em ploy er term inate his relationship w ith the em ploy ee? This factor does not require the lending em ployer to com pletely sever its relationship with the borrowed em ployee. Instead, the focus is “on the lending em ployer’s relationship with the em ployee while the borrowing occurs.”87 In Craw ford v. BP Corp. N orth Am erica Inc., the lending em ployer exercised “little to no control” over the em ployee while the em ployee worked for the borrowing em ployer, and the lending em ployer “placed no restrictions” on the em ployee’s em ploym ent with the borrowing em ployer. 88 In Craw ford, this Court found that, in light of such a relationship between the em ployee and his lending em ployer, this factor weighed in favor of borrowed-em ployee status. 89 Likewise, the Fifth Circuit in Capps v. N .L. Baroid-N L Industries, Inc., found that where the len ding em ployer “exercised no control” over the em ployee while he worked for the borrowing em ployer and “placed no restrictions” on the em ployee’s em ploym ent with the borrowing em ployer, the lending em ployer effectively term inated its relationship with the em ployee, which weighed in favor of borrowed-em ployee status. 90 In Hotard v. Devon Energy Production Co. L.P., the Fifth Circuit reasoned that “the fact that [the em ployee] had no contact with [his lending em ployer] and was 87 Capps, 784 F.2d at 617– 18. Craw ford v. BP Corp. N . Am ., Inc., No. 13-445, 20 15 WL 1190 123, at *3 (E.D. La. Mar. 16, 20 15). 89 Id. 90 Capps, 784 F.2d at 617– 18. 88 16 supervised totally by [his lending em ployer’s] em ployees while on the platform is sufficient to m eet this factor.”91 In this case, the following facts are undisputed: • • • • At all three [NOV] facilities, Plaintiff’s work was directed exclusively by NOV m anagers. 92 Additionally, any NOV em ployee at all (m anager or otherwise) had the authority to direct Plaintiff’s work. 93 No Original USA supervisors were ever present at the NOV facilities during Plaintiff’s work shifts, and Plaintiff was the only original USA em ployee at the NOV facilities. 94 All of Plaintiff’s work at the NOV facilities was NOV’s work, perform ed at the sole direction of NOV m anagers/ personnel, for the benefit of NOV and/ or NOV’s custom ers. 95 Even in light of these undisputed facts, Plaintiff Kevin Posey contends that this factor does not weigh in favor of borrowed-em ployee status because, “[w]hile NOV supervised Plaintiff’s work on site, the evidence suggests that Original USA never term inated its relationship with Posey while he was working at the NOV facility.”96 According to Plaintiff, because Origin al USA m aintained the responsibility of “hiring, firing and disciplining” its em ployees, and because Original USA “also rem ain ed responsible for wages, payroll taxes and withholding[s],” Original USA never term inated its relationship with Kevin Posey. The Court finds, however, that even if true, Plaintiff’s argum ent is not m aterial to the resolution of this Ruiz factor. It is undisputed that, while working at NOV, (1) Plaintiff 91 Hotard v. Devon Energy Prod. Co. L.P., 30 8 F. App’x 739, 742 (5th Cir. 20 0 9) (citing M elancon, 834 F.2d at 1246). 92 R. Doc. 47-2 at 2, ¶9; R. Doc. 48-4 at 3, ¶9. 93 R. Doc. 47-2 at 2, ¶10 ; R. Doc. 48-4 at 3, ¶10 . 94 R. Doc. 47-2 at 2, ¶11; R. Doc. 48-4 at 3, ¶11. 95 R. Doc. 47-2 at 3, ¶19; R. Doc. 48-4 at 5, ¶19. 96 R. Doc. 48 at 9. 17 had little-to-no contact with Original USA em ployees an d/ or supervisors, (2) Plaintiff was supervised entirely by NOV em ployees and supervisors, and (3) Original USA placed no restrictions on Plaintiff’s em ploym ent at NOV. 97 In light of these facts, and guided by the Fifth Circuit’s decisions in Capps and Hotard and this Court’s prior decision in Craw ford, the Court finds that this factor weighs in favor of borrowed em ployee status. 6. W ho furnished the tools and place for perform ance? This factor indisputably weighs in favor of borrowed-em ployee status. The parties agree that “[a]ll the equipm ent and tools Plaintiff used in his work at NOV facilities were provided by NOV, an d the TESA expressly provides that NOV would provide all such equipm ent and tools, which would rem ain NOV’s sole property and subject to NOV’s sole control.”98 This factor clearly supports a finding that Plaintiff was a borrowed em ployee 0 f NOV. 7. W as the new em ploy m ent over a considerable length of tim e? “Where the length of em ploym ent is considerable, this factor supports a finding that the em ployee is a borrowed em ployee.”99 In this case, this factor weighs in favor of borrowed-em ployee status. The parties agree that the “Plaintiff worked solely at NOV facilities for the entire roughly four years of his pre-accident em ploym ent with Original USA, exclusively alongside other direct em ployees of NOV.”10 0 Stated differently, Plaintiff worked for Original USA for approxim ately four years, and the entirety of his em ploym ent with Original USA was spent working at NOV facilities. In fact, Plaintiff specifically adm its that the “entirety of [his] em ploym ent by Original USA was spent at NOV facilities.”10 1 97 R. Doc. 47-2 at 2, ¶¶9– 12; R. Doc. 48-4 at 3, ¶¶9– 12. R. Doc. 47-2 at 3, ¶18; R. Doc. 48-4 at 4, ¶18 . 99 Capps, 784 F.2d at 618 . 10 0 R. Doc. 47-2 at 2, ¶6; R. Doc. 48-4 at 2, ¶6. 10 1 R. Doc. 48 at 9. 98 18 In Craw ford v. BP Corporation N orth Am erica, Inc., this Court found that “over two years” of working on board the borrowing em ployer’s offshore platform “clearly favor[ed] borrowed em ployee status.”10 2 In Hotard v. Devon Energy Corp., L.P., a court in the Western District of Louisiana found that an even shorter length of em ploym ent was considerable under this Ruiz factor. 10 3 The Hotard court noted that: “Hotard worked on Devon’s Platform . . . for over eleven m onths, alm ost a year. As such, this factor weighs in favor of finding for borrowed em ployee status.”10 4 The Hotard decision was upheld on appeal by the Fifth Circuit. 10 5 In this case, Plaintiff Kevin Posey worked at NOV facilities for roughly four years, which the Court finds to be considerable. This factor weighs in favor of borrowedem ployee status. 8 . W ho had the right to discharge the em ploy ee? The proper focus under this factor is whether the borrowing em ployer had the right to term inate the borrowed em ployee’s services with itself. 10 6 This factor “asks whether the alleged borrowing em ployer has the right to term inate its relationship with the worker.”10 7 There is no dispute in this case that NOV had the “right to discharge” and the “right to reassign” Origin al USA personnel from NOV worksites. 10 8 Nevertheless, the Plaintiff m aintains this factor weighs against borrowed-em ployee status because “NOV only has the right to discharge [him ] from the worksite or reassign him , not to term inate him .”10 9 10 2 Craw ford, 20 15 WL 1190 123, at *4. Hotard v. Devon Energy Corp., L.P., No. 0 7-1476, 20 0 8 WL 2228922, at *5 (W.D. La. May 29, 20 0 8) (citing U.S. Fire Ins. Co. v. Miller, 381 F.3d 385, 390 (5th Cir. 20 0 4)). 10 4 Id. 10 5 See Hotard, 30 8 F. App’x at 742. 10 6 Capps, 784 F.2d at 618 . 10 7 Butcher v. Superior Offshore Intern ., LLC, 754 F. Supp. 2d 8 29, 839 (E.D. La. 20 10 ). 10 8 R. Doc. 47-2 at 1, ¶3; R. Doc. 48-4 at 1, ¶3. 10 9 R. Doc. 48 at 9– 10 . 10 3 19 In Melancon v. Am oco Production Co., the Fifth Circuit recognized that, for this factor to weigh in favor of borrowed-em ployee status, the alleged borrowing em ployer needs only to retain the authority to discharge the borrowed em ployee from its em ploy, its projects, or its services. 110 The Fifth Circuit explain ed, specifically, that “Am oco [the borrowing em ployer] also had the right to discharge Melancon even though Am oco could not term inate Melancon’s em ploym ent with Beraud [the len ding em ployer]. Am oco’s right to term inate Melancon’s services in the Am oco field satisfied this requirem ent.”111 In this case, the TESA specifically vests NOV with the “right to discharge” an d the “right to reassign” Original USA personnel from its worksites. It is clear that NOV’s right to discharge Origin al USA personnel, when viewed in context with NOV’s right to reassign Original USA personnel to other NOV worksites, contem plates that NOV can effectively term inate Original USA personnel from working at NOV facilities altogether. Because NOV had the right to term inate Plaintiff’s services with itself, this factor weighs in favor of borrowed-em ployee status. 9. W ho had the obligation to pay the em ploy ee? “The determ in ative inquiry here is whether the alleged borrowing em ployer furnished the funds from which the original em ployer paid the plaintiff.”112 In this case, the parties agree that “Plaintiff filled out tim e tickets for his work at NOV and subm itted those tim e tickets to his NOV m anager for approval, pursuant to NOV’s obligation under the TESA to pay Original USA for all ‘undisputed’ am ounts due for Plaintiff’s tim e (as approved by Plaintiff’s NOV m anagers.”113 Plaintiff then received his pay checks from 110 Melancon, 834 F.2d at 1246. (citing Capps, 784 F.2d at 618; Hebron, 634 F.2d at 247). 112 Vincent, 20 15 WL 6758 269, at *6. 113 R. Doc. 47-2 at 3, ¶16; R. Doc. 48-4 at 4, ¶16. 111 Id. 20 Original USA. Although Plaintiff argues that this factor weighs against borrowedem ployee status, Plaintiff adm its that the funds paid to him by Original USA “were furnished by NOV based upon tim e tickets.”114 Plaintiff’s argum ent does not prevail, and for the following reasons, the Court finds that this factor weighs in favor of borrowedem ployee status. The Court finds Vincent v. Fieldw ood Energy , L.L.C., a recent decision from a court in this district, instructive with respect to this Ruiz factor. 115 The Vincent court, faced with a payroll arrangem ent sim ilar to the payroll arrangem ent in this case, sum m arized the relevant case law as follows: In Brow n, the original em ployer paid the plaintiff, but his pay was based on tim e tickets that had to be verified daily by the alleged borrowing em ployer. Brow n, 984 F.2d at 679. The Fifth Circuit wrote that this procedure supports borrowed-em ployee status. Id. Sim ilarly, in Hotard, the alleged borrowing em ployer approved tim e sheets and paid the origin al em ployer an hourly rate for the plaintiff’s work, and the origin al em ployer issued the plaintiff a check. Hotard, 30 8 F. App’x at 739. The Fifth Circuit wrote that this structure regarding the obligation to pay favors borrowed-em ployee status. Id. Here, deposition testim ony establishes that Vincent turned in tim esheets to Fieldwood for verification and approval. (Rec. Doc. 11– 3 at 3). Wood Group then paid Vincent for hours that were approved, and Wood Group was reim bursed by Fieldwood for the hours worked by Vincent. This structure is the sam e as those in Brow n and Hotard, so this factor favors borrowedem ployee status. The Court also notes that, with respect to the ninth Ruiz factor, this case is on all fours with its prior decision in Craw ford v. BP Corp. N orth Am erica, Inc. 116 In Craw ford, the Court found it significant that the plaintiff com pleted “daily tim e sheets,” which, if approved by the alleged borrowing em ployer, resulted in the plaintiff’s lending em ployer 114 R. Doc. 48 at 10 . See Vincent, 20 15 WL 6758269. 116 Craw ford, 20 15 WL 1190 123, at *4. 115 21 rem itting the appropriate wages. 117 In this case, sim ilar to Vincent, Brow n, Hotard, and Craw ford, Plaintiff Kevin Posey recorded his hours on tim e tickets and subm itted the tim e tickets to NOV m anagers for review and approval. 118 If the tim e tickets were approved, NOV would then pay Original USA for Plaintiff’s tim e, and Original USA subsequently paid Plaintiff his wages. 119 The Court finds that this factor weighs in favor of borrowed-em ployee status. CON CLU SION In sum m ary, all nine Ruiz factors weigh in favor of borrowed-em ployee status. The Court finds as a m atter of law that Plaintiff Kevin Posey was a borrowed em ployee of NOV at the tim e of his injury. NOV is thus vested with tort im m unity, and Plaintiff’s claim s against NOV m ust be dism issed. Moreover, Am erican Interstate Insurance Com pany’s Com plaint-in-Intervention, which is a derivative claim that rises and falls with Plaintiff’s claim s against NOV, also m ust be dism issed. Accordingly; IT IS ORD ERED that NOV’s m otion for sum m ary judgm ent is GRAN TED , 120 and Plaintiff’s claim s against National Oilwell Varco, L.P., be and hereby are D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Am erican Interstate Insurance Com pany’s claim s as pleaded in its Com plaint-in-Intervention 121 be and hereby are D ISMISSED W ITH PREJU D ICE. 117 Id. R. Doc. 47-2 at 3, ¶16; R. Doc. 48-4 at 4, ¶16. See also R. Doc. 48 at 10 . 119 R. Doc. 47-2 at 3, ¶16, 17; R. Doc. 48-4 at 4, ¶16, 17. See also R. Doc. 48 at 10 . 120 R. Doc. 47. 121 R. Doc. 27. 118 22 N e w Orle a n s , Lo u is ian a, th is 2 1s t d ay o f Ju n e , 2 0 16 . ______ _____________ ___________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 23
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