Skipper v. A&M Dockside Repair, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WALTER SKIPPER CIVIL ACTION

VERSUS NO. 18-6164

A&M DOCKSIDE REPAIR, INC., SECTION “R” (4)

ET AL.

ORDER AND REASONS

Before the Court is A&M Dockside Repair, Inc.’s and Helix Resources,

LLC’s joint motion for partial summary judgment.1 Because A&M was

Skipper’s borrowing employer for the purposes of the LHWCA, the Court

grants the motion.

I. BACKGROUND

This case arises out of a workplace accident. At the time of the

accident, plaintiff Walter Skipper was employed by third-party defendant

Helix Resources, LLC, as a painter and blaster.2 On August 11, 2017, plaintiff

was working on a barge in a shipyard that is owned and operated by

1 R. Doc. 48.

2 R. Doc. 15 at 2 ¶ 5.

defendant A&M Dockside Repair, Inc.3 In the course of performing his

duties, plaintiff allegedly fell into an open manhole cover on the barge and

suffered severe injuries.4

On June 22, 2018, Skipper filed a complaint alleging negligence against

A&M and Cashman Equipment Corporation, a party that owned the barge

and has since been dismissed from the case.5 On January 17, 2019, the Court

granted A&M’s motion for leave to file a third-party complaint against

Helix.6 A&M and Helix have now filed a joint motion for partial summary

judgment on the basis that Skipper was a borrowed servant of Helix, that

A&M was acting as Skipper’s borrowing employer, and that therefore

compensation and medical payments are Skipper’s sole remedy under the

Longshore & Harbor Workers’ Compensation Act.7

II. LEGAL STANDARD

Summary judgment is warranted 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); see also Celotex Corp. v.

3 Id.

4 Id.

5 See R. Doc. 1; see also R. Doc. 23.

6 R. Doc. 25.

7 R. Doc. 48-1.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party “must come forward with evidence

which would ‘entitle it to a directed verdict if the evidence went

uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp.

948, 951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with evidence sufficient to demonstrate the “existence of a

genuine dispute of material fact,” or by “showing that the moving party’s

evidence is so sheer that it may not persuade the reasonable fact-finder to

return a verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322

(emphasis added))).

III. DISCUSSION

A&M and Helix argue for partial summary judgment under the

Longshore & Harbor Workers’ Compensation Act. The LHWCA limits the

remedy of a longshoreman or harbor worker against his employer to

compensation and medical benefits. See 33 U.S.C. § 933(i) (“The right to

compensation or benefits under this chapter shall be the exclusive remedy to

an employee when he is injured . . . by the negligence or wrong doing of any

other person . . . in the same employ.”). It is undisputed that Skipper is a

longshoreman or harbor worker and is thus covered by the LHWCA. A&M

and Helix argue that Skipper was the “borrowed servant” of Helix, that A&M

was borrowing plaintiff, and therefore Skipper’s remedies are limited by the

LHWCA. See Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977)

(analyzing the borrowed servant defense in the context of the LHWCA).

Skipper opposes the motion for partial summary judgment on two

grounds. First, Skipper argues that the borrowed servant defense has been

waived, because it was not properly asserted in A&M’s answer. Second,

Skipper argues that genuine issues of fact remain that preclude a grant of

summary judgment. The Court addresses each argument in turn.

A. Waiver

Skipper argues that defendants’ motion for partial summary judgment

must be denied because both A&M and Helix failed to raise it as an

affirmative defense in their answers. Affirmative defenses are pleadings

governed by Rule 8 of the Federal Rules of Civil Procedure. A defendant is

required to “state in short and plain terms its defenses to each claim asserted

against it” and “affirmatively state any avoidance or affirmative defense.”

Fed. R. Civ. P. 8(b)(1)(A), 8(c)(1). In Woodfield v. Bowman, 193 F.3d 354

(5th Cir. 1999), the Fifth Circuit held that affirmative defenses are subject to

the same pleading requirements as a complaint and articulated a “fair notice”

standard for pleading affirmative defenses. Id. at 362. Under this standard,

a defendant is required to plead an affirmative defense “with enough

specificity or factual particularity to give the plaintiff ‘fair notice’ of the

defense that is being advanced.” Id. (citation omitted). Failure to adequately

plead an affirmative defense can result in a waiver of the defense. Rogers v.

McDorman, 521 F.3d 385 (5th Cir. 2008).

But failure to strictly comply with Rule 8(c) does not always result in

waiver. The purpose of the rule “is to give the opposing party notice of the

affirmative defense and a chance to argue why it should not apply.” Pasco v.

Knoblauch, 566 F.3d 572, 578 (5th Cir. 2009) (citation omitted). Therefore,

“an affirmative defense is not waived if the defendant ‘raised the issue at a

pragmatically sufficient time and [plaintiff] was not prejudiced in its ability

to respond.’” Id. at 577 (quoting Allied Chem Corp. v. Mackay, 695 F.2d 854,

855-56 (5th Cir. 1983)). The Court does “not take a formalistic approach to

determine whether an affirmative defense was waived.” Id. Rather, it

“look[s] at the overall context of the litigation” to determine whether

“evidence of prejudice exists and sufficient time to respond to the defense

remains before trial.” Id. Indeed, the Fifth Circuit has “repeatedly rejected

waiver arguments when a defendant raised an affirmative defense for the

first time at summary judgment—or even later.” Motion Med. Tech., LLC v.

Thermotek, Inc., 875 F.3d 765, 772 (5th Cir. 2017).

It is therefore necessary to determine whether defendants raised the

defense “at a sufficiently pragmatic time,” and whether plaintiff was

prejudiced in his ability to respond. Motion Med. Tech., 875 F.3d at 771.

Here, Skipper first had reasonable notice the borrowed servant defense may

be asserted months ago, when Helix appeared in the suit. Indeed, in its

answer to A&M’s third-party complaint, which is part of the record of this

case, Helix asserts that “Mr. Skipper was on a mission for his employer and

performing employment-related activities”8 and that because Helix was

8 R. Doc. 29 at 9.

Skipper’s employer, Skipper has “no right to seek tort remedies from Helix,

nor any other party to attempt to pass through alleged fault to Helix.”9 Helix

also alleged that Skipper’s “sole remedy against it is for compensation under

the Louisiana Worker’s Compensation Act or, alternatively, under the

Longshoremen’s and Harbor Workers’ Compensation Act.”10 Although Helix

does not incant the words “borrowed servant defense” these allegations offer

reasonable notice to Skipper that the defense would be asserted in this case.

Given that Helix’s answer was submitted in February, plaintiff had

reasonable notice, and the defense was raised in a sufficiently pragmatic

time.

Skipper is not prejudiced by the Court’s consideration of the borrowed

servant defense at this juncture. Plaintiff provides fulsome, reasoned

responses to defendants’ arguments in his opposition.11 Skipper even cites

to various exhibits, including deposition testimony, in his response.12 And

although plaintiff asserts that there still exist genuine issues of fact, he argues

these are issues the trier of fact must decide—not that additional discovery is

required to resolve the issues. Indeed, Skipper does not request additional

9 Id.

10 Id.

11 See R. Doc. 51.

12 See R. Doc. 51 at 4.

time for discovery or suggest that additional discovery would cure any

prejudice he may face.

Because Skipper had adequate notice that the borrowed servant

defense would be asserted and is not prejudiced in responding to the

defendants’ motion for partial summary judgment, the Court finds that

defendants did not waive the borrowed servant defense.

B. Genuine Issues of Fact

Skipper also avers that the motion for partial summary judgment must

be denied because issues of material fact still exist with respect to whether

A&M was acting as Skipper’s borrowing employer. The Fifth Circuit has held

that “in absence of substantial evidence to the contrary . . . the issue of

whether a relationship of borrowed servant exist[s] is a matter of law.” Ruiz

v. Shell Oil Co., 413 F.2d 310, 341 (5th Cir. 1969). Here, the relevant facts are

not in dispute. Rather, plaintiff disputes the legal conclusion that should be

drawn from the facts. This is a question of law for the Court.

Courts have developed a nine factor test to determine whether

borrowed servant status exists. The nine 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?

Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977). “No single factor,

or combination of them, is determinative.” Brown v. Union Oil Co. of Cal.,

984 F.2d 674, 676 (5th Cir. 1993). Although in the respondeat superior

context, the first factor—control—is often emphasized, in the tort immunity

context, the Fifth Circuit has focused on the fourth, fifth, sixth, and seventh

factors. Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 n.12 (5th Cir.

1988) (citing Gaudet, 562 F.2d at 356-57). This is because “these factors deal

with the question of whether the circumstances of the employee’s

employment are such that the defendant ‘should be considered an employer

and not a third party under the LHWCA.’” Id. (citing Gaudet, 562 F.2d at

357).

1. Control

The first inquiry is control. The evidence establishes that A&M, as a

borrowing employer, exerted significantly greater control over Skipper than

did his nominal employer, Helix. Brian Mayon, the yard superintendent at

A&M, testified that Mr. Skipper’s only supervisors on the barge where he

worked and was injured were A&M foremen, and that they were “in charge

of all of [Helix’s] workers.”13 He also testified that he was to direct Mr.

Skipper’s work.14 Skipper similarly testified that A&M Dockside was “the

boss”15 and that Helix employees “were just laborers.”16 Skipper testified that

A&M dockside had responsibility for him and his co-workers,17 and he refers

to Mayon as “boss man.”18 This testimony from both plaintiff and the yard

foreman strongly indicates that A&M exercised control over Skipper and

directed his work, not Helix.

Skipper argues that genuine issues of material fact exist as to control

that would preclude summary judgment. In particular, he argues that

Skipper and the foreman were equals and that Skipper was not subordinate

13 Motion for Partial Summary Judgment Exhibit 2 at 45:13-17.

14 Id. at 45:18-46:1.

15 Motion for Partial Summary Judgment Exhibit 4 at 89:5-10.

16 Id. at 89:13.

17 Id. at 90:16-19.

18 Id. at 94:20-22.

to Mayon or to A&M employees. This argument is plainly refuted by the

evidence discussed above. Plaintiff cites to a separate portion of Skipper’s

deposition to support his argument. But the deposition testimony Skipper

cites in no way indicates that Skipper was not subordinate to Mayon. Mayon

stated that Skipper “seemed very familiar with the oilfield” and “worked with

the oilfield his whole life.”19 This does not suggest that Skipper and Mayon

were equals, or that Mayon was not directing Skipper’s actions. Indeed,

immediately after that statement, Mayon listed directions he gave Skipper,

stating: “I told him he was going with the other hands we had and a couple

of guys from my crew [to] clean tanks. He asked how they were cleaning

them. I told him we had some big vacuum systems . . . I showed him who he

was going to be working with . . . .”20 Accordingly, the Court finds that the

“control” factor favors a finding of borrowed servant status.

2. Whose Work?

The second factor—whose work was being performed—also weighs in

favor of borrowed servant status. Mayon testified that Skipper’s work was to

do the repairing and cleaning of the barge for A&M.21 Skipper does not

contest these facts. Rather, Skipper argues that as a hired laborer, he was

19 Opposition Exhibit 1 at 22:4-6.

20 Id. at 22:6-14.

21 Motion for Partial Summary Judgment Exhibit 2 at 45:21-46:21.

truly doing the work of Helix, whose business is hiring out laborers. He

therefore argues he was only incidentally doing the work of A&M.

Skipper’s argument is without merit. That Helix’s business is hiring

out labors does not negate that Skipper was doing A&M’s work at the time of

his injury. Skipper cites two cases in support of his argument. He first cites

to language from Rollans v. Unocal Exploration Corp., No. 93-431, 1993 WL

455731 (E.D. La. Nov. 4, 1993).22 In that case, a cook who worked for a

company that supplied food services was hired to cook for the crew on an

offshore drilling platform, and he was injured after slipping on bacon grease.

Id. at *1. There, the court found that the cook was performing the work of

the catering company, not the oil platform. Id. at *2. But the court in Rollans

emphasized that the plaintiff was supervised by someone from the catering

company and did not answer to any of the defendant’s personnel. Id. And

the job of a cook, who works for a catering company hired to provide catering

to an oil platform’s workers, is different from the case at hand. Here, Helix

hires out laborers such as Skipper to do the actual work of A&M—servicing

22 Skipper’s citation for this language is Mathis v. Union Exploration

Partners, Ltd., No. 90-2009, 1991 WL 42570 (E.D. La. Mar. 26, 1991). But

the relevant language is absent from that case, which does not analyze this

factor in depth. The Court therefore focuses its analysis on Rollans.

and repairing boats—not to do a task ancillary to that, such as cooking, which

is not A&M’s work.

Skipper also cites to Boston Old Colony Insurance. Co. v. Tiner

Associates, Inc., 288 F.3d 222 (5th Cir. 2002). But that case states only that

under Louisiana law, where a general employer’s business is hiring out its

employees and it retains control of the employee at the time of the

negligence, it remains liable for the torts of those borrowed employees. Id.

at 229 (citing Morgan v. ABC Mfr., 710 So. 2d 1077 (La. 1998)). It does not

speak to whose work is being performed. The Court therefore finds that this

factor, too, weighs in favor of borrowed servant status.

3. Agreement

The agreement between A&M and Helix states that Helix’s employees,

including Skipper, “shall at all times be deemed an independent contractor

and the relationship of these parties to Client shall not at any time constitute

any relationship other than that of an independent contractor.”23 The Court

finds this factor weighs against the finding of a borrowed servant

relationship.

Skipper argues that the existence of this clause necessarily creates a

material issue of fact, and the partial summary judgment must be denied.

23 Partial Motion for Summary Judgment Exhibit 1 at 1.

But there are no facts in dispute here—all parties agree on the language of

the contract and that it was binding. And courts have found borrowed

servant status notwithstanding the existence of such a clause. See, e.g.,

Gaudet v. Exxon Corp., 562 F.2d 351, 358 (5th Cir. 1977) (finding a borrowed

servant relationship when other factors other than agreement weighed

heavily in favor of finding the employee was a borrowed servant); Crawford

v. BP Corp., N.A., 2015 A.M.C. 1119 (E.D. La. 2015) (finding the parties’

performance had modified the contract so that the independent contractor

clause was not dispositive). The Court therefore finds that although this

factor weighs in plaintiff’s favor, it does not require the Court to forgo

granting the motion for partial summary judgment.

4. Did the Employee Acquiesce?

There is every indication that Skipper acquiesced to the work

arrangement with A&M. He knew he would be working for A&M, and there

is no evidence he took issue with working for that company. Skipper took

instructions from Mayon seemingly without issue24 and viewed A&M as “the

boss.”25 Indeed, Skipper does not present any argument with respect to this

24 Opposition Exhibit 1 at 22:6-14.

25 Partial Motion for Summary Judgment Exhibit 4 at 89:9-13.

factor. The Court therefore finds this factor weighs in favor of finding a

borrowed servant relationship.

5. Did the Original Employer Terminate its Relationship?

As both parties recognize, this factor asks not whether Skipper’s

relationship with Helix was severed, but whether he maintained contact with

Helix, and whether he was supervised exclusively by A&M. See Hotard v.

Devon Energy Prod. Co. L.P., 308 Fed. App’x 739, 742 (5th Cir. 2009).

Although Skipper avers that there is no evidence that he lacked

communication with Helix or that he was supervised solely by A&M

employees, he offers no evidence to suggest he communicated with Helix or

was otherwise supervised by Helix employees. And the evidence refutes

Skipper’s position. Skipper testified that there were no Helix supervisors at

the job site.26 And, as discussed above, Skipper was taking directions

exclusively from A&M foremen.27 The Court therefore finds that this factor

weighs in favor of borrowed servant status.

6. Tools and Place

Although Helix did provide some personal protection equipment, the

primary tools used to be complete the work of cleaning the barge were

26 Partial Motion for Summary Judgment Exhibit 4 at 89:2-7.

27 See, e.g., id. at 89:9-13.

provided by A&M.28 This includes the vacuum that Skipper was directed to

use.29 All of the relevant work was to take place on the Chasman Equipment

barge, which A&M dockside was hired to clean.30 Skipper presents no

argument that this factor weighs against finding he was a borrowed servant.

The Court therefore finds this factor weighs in favor of finding a borrowed

servant relationship.

7. Length of Time

It is undisputed that Skipper worked for A&M for only six days, and

that the job at issue was to last only two weeks. This is a brief period of time

and cannot weigh in favor of finding a borrowed servant relationship. But it

also does not weigh against finding a borrowed servant relationship.

Caselaw in the Fifth Circuit states that this factor is “significant only when

the special employer employs the employee for a considerable length of

time.” See Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 618 (5th Cir.

1986). But when an employee is injured early in his employment, the factor

is neutral. Id. Indeed, the Fifth Circuit has found this factor neutral even

when an employee worked for a borrowing employer for as long as a month.

See Brown v. Union Oil Co. of California, 984 F.2d 674, 679 (5th Cir. 1993).

28 See Partial Motion for Summary Judgment Exhibit 2 at 47:18-48:8.

29 Id.

30 Id. at 45:21-46:18.

The Court therefore finds this factor neutral. Even were the Court to find

that the short duration of Skipper’s employment with A&M weighed against

finding a borrowed servant relationship, the Court would still find that a

borrowed servant relationship exists because of the number of the other

factors that weigh heavily in favor of finding Skipper was a borrowed servant.

8. Right to Discharge

The inquiry under this factor is not which entity had the power to

terminate the injured plaintiff’s employment outright, but whether the

borrowing employer had the authority to terminate the employee’s services

with the borrowing employer itself. See Melancon, 834 F.2d at 1246. Mayon

testified that A&M had the right to fire Mr. Skipper and ask Helix to replace

him with another employee, and could have “rejected Mr. Skipper as a

temporary worker if they wanted to.”31 Skipper presents no argument that

this factor weights against a finding of borrowed servant status. The Court

therefore finds that this factor weighs in favor of finding borrowed servant

status.

9. Obligation to Pay

The final factor asks who had the obligation to pay Skipper. Plaintiff

points out that the contract between A&M and Helix required Helix to pay

31 Partial Motion for Summary Judgment Exhibit 2 at 50:19-23.

Skipper’s wages.32 But this does not end the inquiry. When the funds the

general employer uses to pay the employee are received from entity the

employee is contracted out to, that entity in effect pays the employee. See

Capps, 784 F.2d at 618. That is the case here. Mayon testified that A&M

paid Helix, which in turn paid Skipper.33 Skipper does not dispute this

arrangement. The Court therefore finds this factor weighs in favor of

borrowed servant status.

10. Conclusion

In sum, seven of the nine borrowed servant factors favor a borrowed

servant relationship, while only one suggests that a borrowed servant

relationship does not exist. One factor is neutral. Notably, the fourth, fifth,

and sixth factors—three of the four factors the Court must weigh most

heavily—favor a borrowed servant relationship. Accordingly, the Court finds

that A&M was Skipper’s borrowing employer for the purposes of the

LHWCA, and that therefore A&M and Helix are entitled to partial summary

judgment.

32 Partial Motion for Summary Judgment Exhibit 1 at 1 (requiring the

contractor, Helix, to “[A]ssume responsibility for the payment of wages to

each employee furnished to Client [A&M] hereunder.”).

33 Partial Motion for Summary Judgment Exhibit 2 at 51:6-10.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the defendants’ motion

for partial summary judgment.

New Orleans, Louisiana, this__2nd__ day of January, 2020.

derek Vaves.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

20