Brian Redmond VS Superior Shipyard and Fabrication, Inc. and XYZ Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL C FIRST CIRCUIT NiTNZBER 2013 CA 039 BRIAN REDMOND VERSUS SUPERIOR SHIPYARD AND FABRICATION INC AND XYZ INSURANCE COMPANY Judgment Rendered November 1 2013 Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche Louisiana Docket Number 119091 Honorable F Hugh Larose Judge Presiding x Rodney Kelp New Orleans Michael L Littlefield McAlpine Richard A Cozad Counsel for Plaintiff Appellant Brian Redmond LA Counsel for Defendant Appellee Superior Shipyard and Fabrication Inc New Orleans LA X A lr K F kF ic C k i A BEFORE WHIPPLE C WELCH AND CRAIN JJ J WHIPPLE C J Plaintiff appeals tha trial court iudgment granting defendant s motion for summary judgment and dismissing plaintiff tort suit with s prejudice on the basis that plaintiff was defendant borrowed employee s whose exclusive remedy is ira workers compensation For the following reasons we affirm FACTS AND PROCEDLJRAL HISTORY Superiar Shipyard and Fabrication Inc Superior Shipyard defendant herein operates a shipvard in Golden Meadow Louisiana Periodically Superior Shipyard needed aciditional personnel to perform its shipbuilding and ship operatioris and contracted with Global repairing Oilfield Contractors LLC Global to provide needed personnel In an effort to supp7y laborers to its customers Global utilized the Terrebonne Parish Work Release Program a program whereby inmates are allowed to participate in specific outside employment while still legally incarcerated Thus when Superior Shipyard rthat Global provide it quested with additional labor in December 2 10 Global arranged with the J Terrebonne Parish Sheriff Office to assign plaintiff Brian Redmond to s Superior Shipyard to perforsn weldin and other needed services Accordingly Global hired Redmond on December 4 201 Q and assigned him to Supe Ship where he began working on approximately ior ard December 6 ZO10 employment began On December 16 2010 only ten days after his Redmond was purportedly injured ai Superior s Shipyard Golden Meadow facility when the scaffolding on which he was standing to perform his welding duties broke causing him to fall Thereafter Redmond filed the instant tort suit against Superior Shipyard contending that the accident and his resulting injuries were caused 2 nd by the negligence of Superior Shipyard 0 zts employees Superior Shipyard answered the suit and asserted various affirmative defenses including the defense that as a borrowed employee at the time of the injury s Redmond remedies were limited t4 workers compensation benefits Superior Shipyard later filed a a for summary judgment otion contending that it was entitled to jnd as a matter of law dismissing anent sclaims on the basis that it was Redmond Redmond sborrowing employer and thus immune frorn tort iiabzlity Follczwing a hearing on the motion the trial court found that Superior Shipyard had established that there was no issue of material fact that Redmond wa Su Shipyard borrowed neriar s employee and thus that Redmond right of recovery was limited to s workers compensation or longshorernen benefits From the trial court s December 5 2012 judgment granting Superior Shipyard motion for s summary judgment and dismissing his suit with prejudice Redmond now appeals contending t1 the triat couri erred in determining that there was no at issue of fact as to whether he was a borro employee ed s T BURDE OF PROOF AND STANDARD OF REV FOR IEW SUMMARY JU A motion for sumr judgment is properly granted if the pleadings iary depositions swers an to ries interragat and admissions on file together with affidavits if any show that there is no genuine issne as to material fact and that the mover is entitled to judgment as a matter of law LSA art P C B 966 The summary judgment procedure is expressly favored in the law and is designed to secure the just speedy and inexpensive determination of domestic non civil actions LSA art 966 P C 2 A The movEr bears the burden of proving that he is entitled to summary judgment LSA art 966 However if th mover will not bear P C 2 C 3 I the burden of proof at trial on the subject matter of the motion he need only demonstrate the absence of factual support for one or more essential elements of his s opponent claim action or defense P C LSA art 2 C 966 If the moving paxty points out that there is an absence of factual support for one or more elements essential to the adverse party claim s action or defense then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial P C LSA art 2 C 966 Once the nnover has put forth supporting proof through affidavits or otherwise the adverse party may not rest on the mere allegations or denials of his pleadings but his response by affidacits or otherwise must set forth specific facts showing that there is a genuine issue for trial LSA P C art 967 B If on the other hand the mover will bear the burden of proof at trial that party must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial Hines v Garrett 2004 i 0806 La 6 876 So 2d 764 766 Such an affirmative showing will 04 25 then shift the burden of production to the party opposing the motion requiring the opposing party either to produce evidentiary materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit requesting additional time for discovery Hines 876 So 2d at 766 767 In ruling on a motion for summary judgment the trial court role is s not to evaluate the weight of the evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable fact Hines 876 So 2d at 765 Despite the legislative mandate that summary judgments are now favared factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the 4 motion and all doubt must be resolved in the opponent sfavor Willis v Medders 20 La 12 775 So 2d 1049 1050 per curiam 2507 0 00 8 In determining whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial s court determination of whether summary judgment is appropriate East Ta Development Companv LLC v Bedico Junction LLC 2008 1262 La App l Cir 12 5 So 3d 238 243 writ denied 2009 08 23 244 0166 La 35 So 3d 146 09 27 BORROWED EMPLOYEE DEFENSE In the instant case the issue n appeal is whether there is any genuine issue of material fact conceming Redmond status as a borrowed servant of s Superior Shipyard If Redmand is a borrowed servant then his remedy is exclusively in workers compensation under either the Longshore and Harbor Workers Compensation Act LHWCA or Louisiana workers compensation law See 33 A C S L A 905 and S R LSA a 1 A 1032 23 Griffin v Wickes Lumber Company 2002 La 0294 App l Cir 12120 840 So 2d 591 594 597 writ denied 2003 02 1338 La 9 8S3 So 2d 640 Ledet v Qualitv Shi Inc 615 So 2d 03 19 yards 990 992 Hall v Equitable Shi Inc 95 La App 4 Cir vard 1754 96 29 2670 So 2d 543 545 The issue of whether a borrowed servant relationship existed is a matter of law for the court to determine Griffin 840 So 2d at 596 Ledet 615 So 2d at 992 While there is no fixed test the factors to be considered in determining the existence of a borrowed employee relationship include right of control selection of employees payment of wages power of dismissal relinquishment of control by the general employer which s employer wark was being performed at the time in question the existence 5 of an agreement either implied or explicit between the borrowing and lending employer furnishing of instructions tools and place for the performance of the work the length of employment and the employee s acquiescence in a new work situation Mejia v Bovkin Brothers Inc 2010 0118 La App l Cir 952 So 3d 82 84 Foreman v Danos and 10 10 85 Curole Marine Contractors Inc 97 La App l Cir 9 722 2038 98 25 So 2d 1 4 writ denied 98 La 12 5 2703 9734 So 2d 637 Ledet 18 615 So 2d at 992 Tort immunity under the borrowed servant doctrine is an affirmative defense within the context of a tort action Billeaud v Poledore 603 So 2d 754 755 La App l Cir writ denied 608 So 2d 176 La 1992 Brumbaugh v Marathon Oil Company 507 So 2d 872 874 La App 875 S Cir writ denied S08 So 2d 824 I 1987 Thus as the party asserting a the affirmative defense Superiar Shipyard bore the burden of proof in establishing tort immunity on the basis of Redmond status as its borrowed s employee See Billeaud 603 So 2d at 755 and Brumbau 756 h507 So 2d at 876 also see generally Barabav Proe HoldinP COrporation v Boh rtv Brothers Construction Co L 2007 La App l Cir 5 991 C 2005 08 2 So 2d 74 79 writ r2008 La 10 993 So 2d 1270 writ anted 1185 08 denied as improvidently ranted 2008 La 3 6 So 3d 172 tort 1185 09 17 immunity is an affirmative defense for which ihe one asserting the defense has the burden of proo Accordingly to establish its entitlement to summary judgment Superior Shipyard was required to support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial See Hines 876 So 2d at 766 With regard to the right of control and the relinquishment of control by Global the evidence of recard demonstrates that each day a Global 6 employee would transport Redmond from Yhe rison to the Superior s Shipyard facility and back to prison again at th end of his work shift However once atthe Superior Shipyard sfacility Reclmond ttended a daily work schedule meeting conducted by Superior Shipy after which he rd would receive his wark assignment fox the day from the Super Shipyard or foreman Moreover while a Global empioyee who may have been in a supervisory positic was present at the n Superior Shlpyard faciliry s Redmond work was in fact supervised by the Superior Shipyard foreman not the Global employee At no time did ariy Global employe ever direct sactivities at the Superior Shipyard Redmond sfacility Compare Meiia 52 So 3d at 85 Indeed Redmond acknowledged that his contact with Global consisted of transporting him to and from the worksite and delivering his paycheck Compare Hall 670 So 2d at 546 The work Griff performed was Superior Shipyard wark and not tn s s Global Redmond worked only at Superior Shipyard sfacility and never worked at any other pYacz whil empioyed with Global Compare Ledet 615 So 2d at 993 Redmand nev went to Global office for any reason r s All instructions given tRedmo dwere furnisheci by the Superior Shipyard foreman who was also the individual Redmond sought out if he encountered a problem or needed anything while on the jobsite Additionaliy except for the personal equipment that Redmond nimself supplied such as a welding lead chipping hammer gloves welding shield jacket wrench and screwdriver Superior Shipyard supplied all other equipment and machinery needed to perform the job Global supplied no tools or equipment GVith regard to the Global employee on site Redmond testified that he thought the Global employee was a something However he was not sure of the supervisor or Global employee title because Redmond hadn seen too much of him s t 7 Regarding power of selection and dismissal although Redmond was hired by Global he was selected for the purpose of working at the Superior Shipyard facility and Superior Shipyard acquiesced in the assignment Compare Griffin 840 So 2d at 597 And whale Superior Shipyard did not have the power to terminate Redmcnd yznent with Globai Superior sempl Shipyard did have the uthority to terminat Redmond semployment with Global Superior Shipyard did k the authority to have him removed from ave its jobsite The power to terminate an employee services at a job site is s enough to satisfy the power of dismissal fiac Ledet 615 Sa 2d at 994 ar In considering tha payment of wages to the employee the determinative consideration zn addressing this factor is which company provided the funds to pay Redmond Ledet 615 So 2d at 994 see also Hall 670 So 2d at 547 The evidence demonstrates that Redmond clocked in and out at the Superior Shipyard faciiity on a time card labeled GOC for Global Oilfield Contractors His time card was maintained by Superior Shipyard and then subrziitted to Global C charged Superior Shipyard l1Qbal 00 24 per hour for Redn s and then pai Redmond 12 per s ond rvices l 00 hour out of that sum Thus Superior Shipyard rovided the funds To pay Redmond See Meiia 52 So 3 at 8S Ledet 615 So 2d at 994 and Hall 670 So 2d at 547 Because Redmond was injured only two weeks after h began his employment the borrowing arrangemeni had not been lengthy or extending over a considerable period of time However Redmond testified that he believed that Superior Shipyard was satisfied with his work and that his assignment there was going to be permanent Similarly representatrves of Superior Shipyard and Global attested that had it not been for the accident Redmond would have continueci to be employed at the Superior Shipyard 8 facility for as long as his work continued to be satisfactory and his services were needed Additionally while he attested that he believed he was working for Global Redmond acknowledged that he was okay with the job assignment to Superior Sh and readily agreed that he would have ipyard kept performing the job as assigned if he had not been hurt Thus he clearly acquiesced in the arrangemeni Finally turning to the question of whether an agreement existed between the borrowing and Iending employer Global and Superior Shipyard did in fact have a contract for the furnishing of labor and the contract specifically provided that Global employees were not the employees of s Superior Shipyard However the actions of Global and Superior Shipyard were clearly inconsistent with this written agreement Redmond worked solely at the Superior Shipyard and was instructed and supervised by the Superior Shipyard foreman Other than actions in transporting Redmond for medical treatment and preparing of the accident report with regard to the accident at issue Global contact with Redmond consisted of providing a s ride to and from the prison and v and delivery of his paycheck All ork elements of the wark were directed and controlled by Superior Shipyard The parties to a contract cannot automatically prevent a legal status like borrowed employee from arising merely by stating in a provision of their contract that it cannot arise Ledet 615 So 2d at 993 Rather the reality at the worksite and the parties actions in carrying out a contract can impliedly modify alter or waive express contract provisions Ledet 615 So 2d at 993 uotin Melancon v Amoco Production Co 834 F 2d 1238 1245 S Cir 1988 Thus a summary judgment can be affirmed despite the existence of such a contract clause if all factors other than the 9 contract overwhelmingly establish the borrowed employee status Ledet 615 So 2d at 993 In the instant case we find that the evidence presented in support of Superior Shipyard motion for summary judgment overwhelmingly s established that Redmond was its borrowed employee Thereafter the burden of production shifted to Redmond which required him to produce evidentiary materials that demonstrate the existence of a genuine issue for trial as to his status as a borrowed employee He did not do sa The evidence he submitted in opposition to the znotion did not raise any disputed issue of material fact Compare Ledet 615 So 2d at 994 Accordingly we find no error in the trial court determination that Superior Shipyard s demonstrated its entitlement to judgment in its favor as a matter of law dismissing Redmond sclaims against it CONCLUSION Far the above and foregoing reasons the trial court December 5 s 2012 judgment granting Superior Shipyard motion far summary judgment s and dismissing Redmond suit with prejudice is hereby affirmed Costs of s this appeal are assessed agaznst Brian Redmond AFFIRMED 10
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