Delozier v. S2 Energy Operating, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CORREY DELOZIER, ET AL., CIVIL ACTION

Plaintiffs

VERSUS NO. 18-14094

S2 ENERGY OPERATING, LLC, ET AL., SECTION: “E” (2)

Defendants

ORDER AND REASONS

Before the Court is Defendant Wood Group PSN, Inc.’s (“Wood Group”) motion

for summary judgment on the two negligence claims filed against it by Plaintiffs.1

BACKGROUND

Plaintiff Correy Delozier alleges he was working as an offshore operator, doing

work on S2 Energy Operating, LLC’s (“S2”) fixed platforms and wells in the Timbalier Bay

Field, when he sustained significant injuries by being “crushed” as he transferred from a

crew boat to a fixed drilling platform.2 Delozier and his wife, Valerie Delozier, filed suit

against S2, Pioneer Production Services, Inc. (“Pioneer”), Wood Group, and Stephen

Dauzat seeking damages for his injuries and her loss of consortium.

STANDARD

Summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

1 R. Doc. 35. Plaintiffs opposed the motion. R. Doc. 46. Defendant S2 Energy Operating, LLC opposed the

motion. R. Doc. 51. Defendant Wood Group replied in support of its motion. R. Doc. 58. Plaintiffs filed a

supplemental memorandum in opposition. R. Doc. 96. Defendant Wood Group filed a supplemental reply

in support of its motion. R. Doc. 114. Plaintiffs provided a supplemental response to Defendant Wood

Group’s statement of undisputed material facts. R. Doc. 134.

2 R. Doc. 68 at ¶ XIX.

of law.”3 “An issue is material if its resolution could affect the outcome of the action.”4

When assessing whether a material factual dispute exists, the Court considers “all of the

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

the evidence.”5 All reasonable inferences are drawn in favor of the nonmoving party.6

There is no genuine issue of material fact if, even viewing the evidence in the light most

favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving

party, thus entitling the moving party to judgment as a matter of law.7

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

persuasion 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.’”8 If the moving

party fails to carry this burden, the motion must be denied. If the moving party

successfully carries this burden, the burden of production then shifts to the nonmoving

party to direct the Court’s attention to something in the pleadings or other evidence in the

record setting forth specific facts sufficient to establish that a genuine issue of material

fact does indeed exist.9

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

of persuasion at trial, the moving party may satisfy its burden of production by either (1)

submitting affirmative evidence that negates an essential element of the nonmovant’s

claim, or (2) demonstrating there is no evidence in the record to establish an essential

3 Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

4 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

5 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).

6 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

7 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).

8 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)).

9 Celotex, 477 U.S. at 322–24.

element of the nonmovant’s claim.10 When proceeding under the first option, if the

nonmoving party cannot muster sufficient evidence to dispute the movant’s contention

that there are no disputed facts, a trial would be useless, and the moving party is entitled

to summary judgment as a matter of law.11 When, however, the movant is proceeding

under the second option and is seeking summary judgment on the ground that the

nonmovant has no evidence to establish an essential element of the claim, the nonmoving

party may defeat a motion for summary judgment by “calling the Court’s attention to

supporting evidence already in the record that was overlooked or ignored by the moving

party.”12 Under either scenario, the burden then shifts back to the movant to demonstrate

the inadequacy of the evidence relied upon by the nonmovant.13 If the movant meets this

burden, “the burden of production shifts [back again] to the nonmoving party, who must

either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce

additional evidence showing the existence of a genuine issue for trial as provided in Rule

56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided

in Rule 56(f).”14 “Summary judgment should be granted if the nonmoving party fails to

respond in one or more of these ways, or if, after the nonmoving party responds, the court

10 Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)

(citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S. at 322–24, and

requiring the Movers to submit affirmative evidence to negate an essential element of the nonmovant’s

claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an essential

element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in Celotex, and requiring

the movant to make an affirmative presentation to negate the nonmovant’s claims on summary judgment);

10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE

§2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority and dissent both agreed as

to how the summary-judgment burden of proof operates; they disagreed as to how the standard was applied

to the facts of the case.” (internal citations omitted)).

11 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249–50 (1986).

12 Celotex, 477 U.S. at 332–33.

13 Id.

14 Celotex, 477 U.S. at 332–33, 333 n.3.

determines that the moving party has met its ultimate burden of persuading the court that

there is no genuine issue of material fact for trial.”15

“[U]nsubstantiated assertions are not competent summary judgment evidence.

The party opposing summary judgment is required to identify specific evidence in the

record and to articulate the precise manner in which that evidence supports the claim.

‘Rule 56 does not impose upon the district court a duty to sift through the record in search

of evidence to support a party’s opposition to summary judgment.’”16

ANALYSIS AND LAW

Plaintiff Correy Delozier’s Third Amended Complaint asserts causes of action

against Wood Group based on (1) respondeat superior liability for negligence on the part

of its employee Stephen Dauzat,17 and (2) failure to “properly train employees and/or

hiring and/or retaining careless and/or unskilled employees.”18 Wood Group seeks

summary judgment in its favor on both negligence claims.19

I. Summary Judgment is Denied with Respect to Wood Group’s

Respondeat Superior Liability for Dauzat’s Alleged Negligence.

The Plaintiffs allege Wood Group is liable for Dauzat’s failure to properly operate,

maintain and/or control the M/V Miss Michelle and his failure to properly navigate the

vessel.20 The parties dispute which law applies to this negligence claim. Plaintiffs argue

general maritime law and Louisiana state law jointly apply.21 Wood Group argues this

15 Id.; see also First National Bank of Arizona, 391 U.S. at 289.

16 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsyth

v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–

16 & n.7 (5th Cir. 1992)).

17 R. Doc. 68 at XXX.

18 Id. at XXII(8).

19 R. Doc. 35.

20 R. Doc. 68 XII(1)-(2).

21 R. Doc. 156 at 2.

claim is governed by general maritime law.22 S2 Energy argues Louisiana state law

applies.23

A. Louisiana Law Determines Wood Group’s Respondeat Superior

Liability for Dauzat’s Alleged Negligence.

The analysis for determining whether general maritime law applies to the

Plaintiffs’ tort claim based on respondeat superior liability for Dauzat’s alleged negligence

is identical to the analysis for determining whether federal admiralty jurisdiction exists

over the claim.24 The Plaintiffs allege in their Third Amended Complaint the Court has

subject matter jurisdiction pursuant to 28 U.S.C. § 1332,25 but also assert the action is

brought “pursuant to the laws of the State of Louisiana, the Jones Act, 46 U.S.C. Sections

30104-30106, and the General Maritime Laws of the United States.”26 Generally, injured

plaintiffs like the Deloziers may assert either diversity jurisdiction or admiralty

jurisdiction for their maritime tort claims.27 Regardless of the jurisdiction invoked in the

Plaintiffs’ pleadings, substantive federal maritime law will govern if the claim is within

constitutional and statutory grants of admiralty jurisdiction.28 If admiralty jurisdiction is

established, “then all of the substantive rules and precepts peculiar to the law of the sea

become applicable.”29

In Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., the Supreme Court

set forth the test for establishing admiral jurisdiction over tort claims and, thus, the test

22 R. Doc. 158 at 2.

23 R. Doc. 159 at 2.

24 Hamm v. Island Operating Co., Inc., 450 Fed.Appx. 365, 368 (5th Cir. 2011) (citing May v. Transworld

Drilling Co., 786 F.2d 1261, 1265 (5th Cir. 1986)).

25 R. Doc. 68 at II.

26 Id. at IV.

27 Victory Carriers, Inc. v. Law, 404 U.S. 202, 204 (1971).

28 Id. See Branch v. Schumann, 445 F.2d 175, 177-78 (5th Cir. 1971) (holding that admiralty retains exclusive

jurisdiction notwithstanding the diversity character of the litigation.).

29 Branch, 445 F.2d at 178. See Adamson v. Port of Bellingham, 907 F.3d 1122 (9th Cir. 2018) (holding that

substantive maritime law will control a claim regardless of the forum or asserted basis of jurisdiction).

for determining whether general maritime law applies to a cause of action in tort.30 The

Supreme Court adopted a two-pronged analysis focusing first on location and then on

connection with maritime activity:

[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28

U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location

and of connection with maritime activity. A court applying the location test

must determine whether the tort occurred on navigable water or whether

injury suffered on land was caused by a vessel on navigable water. The

connection test raises two issues. A court, first, must assess the general

features of the type of incident involved, to determine whether the incident

has a potentially disruptive impact on maritime commerce. Second, a court

must determine whether the general character of the activity giving rise to

the incident shows a substantial relationship to traditional maritime

activity.31

The location prong is satisfied by either (1) a tort occurring wholly on navigable

water32 or (2) an injury suffered on land that was caused by a vessel on navigable water.33

The Fifth Circuit in Egorov, Puchinsky, Afanasiev, & Juring v. Terriberry, Carrol &

Yancey, held that to determine whether a tort occurred on navigable water the court must

look to where the harm “took effect” rather than the “locus of the allegedly tortious

conduct.”34 In this case, the parties agree Delozier was injured after he stepped off the

crew boat and was scrambling onto the SF4 fixed platform.35 Delozier testified he was

hanging onto a piling supporting the fixed platform when the crew boat hit his right ankle

30 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 533-34 (1995). This test has

been cited with approval in the Fifth Circuit. See In re Louisiana Crawfish Producers, 772 F.3d 1026 (5th

Cir. 2014) (applying the Grubart analysis).

31 Id. at 533 (internal citations and quotation marks omitted); see also Gulf Coast Shell and Aggregate LP

v. Newlin, 623 F.3d 235, 240 (5th Cir. 2010).

32 Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253 (1972) (recognizing the longstanding

principle that where “the wrong occurred on navigable waters, the action is within admiralty jurisdiction.”).

See The Plymouth, 70 U.S. 20, 36 (1865) (“Every species of tort, however occurring, and whether on board

a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.”).

33 The Admiralty Extension Act, 46 U.S.C. 30101. See Jerome B. Grubart, Inc., 513 U.S. at 533.

34 Egorov, Puchinsky, Afanasiev & Juring v. Terriberry, Carrol & Yancey, 183 F.3d 453, 456 (5th Cir.

1999).

35R. Doc. 68 at ¶¶ XVII, XIX, XX; R. Doc. 105-11 at ¶ 14; R. Doc. 110-2 at ¶ 2; R. Doc. 137 at 18; R. Doc. 138

at 2. There is no dispute the MISS MICHELLE was a vessel on navigable waters.

and leg, pinning him between the crew boat and the piling.36 Although the alleged tortious

conduct—Dauzat’s negligent driving of the crew boat and his alleged instruction to

Delozier “to climb upon the well,”37 occurred on navigable water—the harm took effect on

the fixed platform where Delozier was located when his ankle and leg were crushed by the

boat. Because the harm took effect on the fixed platform, the tort did not occur wholly on

navigable water.

Because the tort did not occur on navigable water, the general location rule

supporting admiralty jurisdiction over a claim does not apply. The Admiralty Extension

Act created an exception to the general rule by extending admiralty jurisdiction to “cases

of injury or damage, to person or property, caused by a vessel on navigable waters, even

though the injury or damage is done or consummated on land.”38 The Act provides that

The admiralty and maritime jurisdiction of the United States extends to and

includes cases of injury or damage, to person or property, caused by a vessel on

navigable waters, even though the injury or damage is done or consummated on

land.39

Cases decided soon after the Admiralty Extension Act examined whether a tort

committed by the negligence of the vessel’s personnel was considered to be caused by the

vessel. In Gutierrez v. Waterman S.S. Corp., a longshoreman slipped on loose beans

spilled on a dock after the beans had been defectively packaged aboard a ship.40 The

Supreme Court held “[t]here is no distinction in admiralty between torts committed by

the ship itself and by the ship's personnel while operating it, any more than there is

between torts ‘committed’ by a corporation and by its employees.”41 This interpretation

36 Correy Delozier Dep. 51:9-52:1.

37 R. Doc. 68 at XVIII.

38 46 U.S.C. § 30101(a) (emphasis added).

39 46 U.S.C. 30101(a).

40 Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 207 (1963).

41 Id. at 210.

of the statute was clarified in Victory Carriers, Inc. v. Law, in which the Supreme Court

required the injury be caused by a ship or its appurtenance, rather than the vessel’s

personnel, in order for admiralty jurisdiction to apply.42 In line with Supreme Court

precedent, the Fifth Circuit has held “the Extension Act is meant to apply to the vessel

and her appurtenances ‘and does not include those performing actions for the vessel.”43

"The vessel or its defective appurtenances must be the proximate cause of the accident.”44

The alleged negligence in the instant case is Dauzat’s operation of the M/V MISS

MICHELLE, not defects in the vessel or its appurtenances.45 The location prong of the

admiralty jurisdiction inquiry is not satisfied and general maritime law does not apply.

Even if the location prong were satisfied, the second prong, a traditional maritime

connection, is not satisfied. To meet the second prong, the court must assess the

connection between the activity giving rise to the incident and traditional maritime

activity by applying a two-step test.46 First, the court must assess the general features of

the type of incident involved to determine whether the incident has a potentially

disruptive impact on maritime commerce.47 Second, the court must determine whether

the general character of the activity giving rise to the incident has a substantial

relationship to traditional maritime activity.48

42 Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971).

43 Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 493 (5th Cir. 2002) (quoting Egorov, 183 F.3d 453, 456 (5th

Cir. 1999).

44 Margin v. Sea-Land Services, Inc., 812 F.2d 973, 974 (5th Cir. 1987).

45 See id. at 494 (“the defect must be in the appurtenance and not be due to the personnel performing

services for the vessel.”).

46 Jerome B. Grubart, Inc., 513 U.S. at 534.

47 Id.

48 Id. See Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677 (1982) (holding that admiralty jurisdiction

exists when the wrongful conduct holds a significant connection with traditional maritime activity). In

Foremost, the Supreme Court held admiralty jurisdiction still existed although the tort arose from two

pleasure boats colliding on the Amite River in Louisiana—beyond the scope of maritime commerce. Id. at

674-75.

The general character of the activity giving rise to the incident in this case is oil and

gas operations on a fixed platform. Fixed platforms are treated as artificial islands and

are not within admiralty jurisdiction.49 Injuries sustained by workers during transfers

between a fixed platform and a vessel in navigable waters have been held to be neither

potentially disruptive to maritime commerce nor substantially related to traditional

maritime activity.50 The foreseeable economic disruption this incident posed is to the oil

and gas operations on the platform, not commercial activities at sea. The Fifth Circuit has

held the suspension of oil and gas operations poses no “more than a fanciful risk to

commercial shipping.”51 In Herb’s Welding, Inc. v. Gray, the Supreme Court found that,

unlike piers, “drilling platforms were not even suggestive of traditional maritime

affairs.”52 The general character of the activity giving rise to this incident does not bear a

substantial relation to traditional maritime activities.

The Court lacks admiralty jurisdiction over this negligence claim. Because the S2

SF4 fixed platform is in Louisiana’s territorial waters, Louisiana law applies.

B. Louisiana’s Dual Employer Doctrine Applies.

The maritime approach to the borrowed employee doctrine is rooted in the seminal

case of Standard Oil v. Anderson, in which an injured longshoreman sued a shipowner

after the ship’s winchman negligently dropped cases of oil on him.53 At the time of the

accident, the winchman was assisting the dock’s stevedore unload the ship.54 The

49 See Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 360 (1969) (“[The platforms] were islands, albeit

artificial ones, it was an island, albeit an artificial one, and the accidents had no more connection with the

ordinary stuff of admiralty than do accidents on piers.”).

50 Hufnagel v. Omega Serv. Industries, Inc., 182 F.3d 340, 349 (5th Cir. 1999). See Hicks v. BP Exploration

& Production, Inc., 308 F.Supp.3d 878, 890 (E.D. La. 2018) (holding that state law applied when a platform

electrical worker whose personnel basket between the platform and vessel caused him to fall).

51 Petrobras America, Inc. v. Vicinay Cadenas, S.A., 815 F.3d 211 (5th Cir. 2016).

52 470 U.S. 414, 421-22 (1985).

53 212 U.S. 215, 218 (1909).

54 Id.

Supreme Court held the shipowner was relieved of liability because the winchman was

doing the work of the stevedore and not the work of the shipowner.55 In this case, Wood

Group argues that, under general maritime law, liability has shifted from Wood Group to

S2 because S2 is Dauzat’s borrowing employer. Wood Group’s argument fails as the Court

has found Louisiana law applies to this cause of action.

Vicarious liability in Louisiana begins with La. Civ. Code art. 2320, which holds

“employers are answerable for the damage occasioned by their servants and overseers, in

the exercise of the functions in which they are employed.”56 Louisiana courts consistently

have held employers are vicariously liable for any torts by their employees.57 Historically,

the borrowed employee doctrine in Louisiana shifted liability from the general employer

to the borrowing employer, just as it does in general maritime law. In 1951, the Louisiana

Supreme Court adopted the borrowed employer doctrine to resolve situations in which

there are two potential masters who might be liable for their employee’s torts.58 In Benoit

v. Hunt Tool Co., the plaintiff was injured by a fuel tank explosion caused by the negligent

acts of a welder generally employed by the Hunt Tool Company ("Hunt"). Hunt argued

the negligent welder was actually the borrowed servant of the oil company contracting his

services, thus relieving Hunt of all liability.59 The Court found that, despite the welder’s

day-to-day dispatches to the oil company's site, where he took suggestions from the oil

company's workers, the welder was not the borrowed employee of the oil company.60

55 Id. at 225-26.

56 La. C.C. art. 2320.

57 Ermert v. Hartford Ins. Co., 559 So.2d 467, 475 (La. 1990) (recognizing the "deeply rooted sentiment

that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be

characteristic of its activities."). This general rule was codified in La. Rev. Stat. 9:3921, which deprives

employers from any “right of contribution, division, or indemnification from the employee.”

58 Benoit v. Hunt Tool Co., 53 So.2d 137 (La. 1951).

59 Id. at 140.

60 Id. at 143.

Although the Louisiana Supreme Court rejected a finding of borrowed employee status

for the welder, it recognized the borrowed employee doctrine, saying: “[i]t is often difficult

where two possible masters are involved to determine which is liable for the tort, and to

determine such liability we must look to the doctrine of the borrowed servant.”61 The

Benoit court explained that either the general employer or the special employer, but not

both, could be held liable. This became known as the “one master” rule by later courts.62

The Louisiana Supreme Court revisited the borrowed employee doctrine in

LeJeune v. Allstate Ins. Co., and repudiated the one master rule, instead finding both the

general and special employer may be held solidarily liable for the torts of a borrowed

employee.63 In LeJeune, a loaned hearse driver negligently failed to stop at a red light,

causing an accident that took a passenger’s life. The hearse driver had been loaned from

one funeral home to another and both were sued. The court found both to be liable

because “the employee was loaned out to another in a continuing arrangement between

the employers for their mutual benefit.”64 The court also noted the original employer

continued to pay him and had the sole right to discharge him. The Court explained the

shift in doctrine:

Nevertheless, this [borrowed employee] determination should not relieve

the general employer of his liability for his employee's negligent acts done

in the pursuance of duties designated for him by his employer, in whose pay

he continued and who had the sole right to discharge him. This is especially

so in the present case, where the employee was loaned out to another in a

continuing arrangement between the employers for their mutual benefit.65

* * * *

61 Id. at 140.

62 Id. at 143; Grimes v. Louisiana Medical Mut. Ins. Co., 29 So.3d 505, 509 (La. App. 1 Cir. Sept. 11, 2009)

(“Under the “one master” rule of Benoit, the finding of borrowed servant status eliminated the possibility

of vicarious liability on the part of the general employer.”).

63 365 So.2d 471, 481 (La. 1978).

64 Id. at 481.

65 365 So.2d 471, 481 (La. 1978).

A number of other jurisdictions have likewise held that both the general and

special employer may be held solidarily liable for the employee's tort. We

believe this to be the better rule and, accordingly, overrule expressions

indicating to the contrary, as well as the two decisions of the intermediate

courts which expressly held the general employer not liable to a third person

for torts committed by his employee while loaned to a special employer. We

conclude, therefore, that under the circumstances, Ville Platte, the general

employer, is liable to the plaintiffs for the damages caused them by Lafleur

while negligently driving the hearse for Mamou.66

The Louisiana Supreme Court reaffirmed this rule in Blair v. Tynes.67 In Blair, the

Court found both a local sheriff’s office and the lessor of an event hall were liable for the

negligence of a deputy sheriff who was specially hired to direct vehicle traffic for a private

fundraiser at the hall. The sheriff misdirected traffic, which resulted in a deadly car

accident.68 The court held:

Our jurisprudence has held that special and general employers may be

solidarily liable in tort to third parties injured by the negligence of their

employees. In LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La. 1978), we

addressed the issue of whether the general employer of a negligent

employee remained liable for its employee's tort despite the fact that the

employee had been borrowed to perform services for a special employer at

the time of an accident. We held that a general and special employer may be

solidarily liable for injuries to a third party caused by an employee's

negligence.69

In Ermert v. Hartford Ins. Co., the court explained the principle upon which the dual

employer doctrine is justified:

The master's vicarious liability for the acts of its servant rests not so much

on policy grounds consistent with the governing principles of tort law as in

a deeply rooted sentiment that a business enterprise cannot justly disclaim

responsibility for accidents which may fairly be said to be characteristic of

its activities.70

66 Id. at 481-82 (footnotes omitted).

67 621 So.2d 591 (La. 1993).

68 Id. at 594-95.

69 Id. at 599.

70 Ermert v. Hartford Ins. Co., 559 So.2d 467, 476 (La. 1990).

In Morgan v. ABC Manufacturer, Edward Morgan sued a temporary agency and

alleged he was injured as a result of the agency’s employee.71 The temporary agency

sought to escape liability by arguing the contracting construction company was the

tortious employee's borrowing employer. The Louisiana Supreme Court further explained

the justification for the borrowed employer doctrine, “[w]hile the borrowed servant

defense focuses on which employer controlled the employee's actions, modern

justification for employer liability is not based so much on the employer's control of the

employee's actions, but on the concept of ‘enterprise liability.”72 Morgan held that when

“loaned employees are [the temporary services provider’s] stock in trade,” the general

employer will remain liable for the torts of the borrowed employee.73 Liability remains

with the general employer when “a significant feature of its business is to pass control of

the details of the work to its customers” and it “retains ultimate and overriding authority

over its loaned workers.”74 When both employers contemporaneously control and benefit

from the loaned worker’s liability, both will be held liable under the Dual employer

doctrine.75

Plaintiff argues “Morgan applies in the limited factual scenario where there is a

payroll employee of one labor provider whose negligence injures a payroll employee of a

different labor provider, while both employees are co-borrowed employees of a borrowing

employer.”76 Plaintiffs’ narrow interpretation of Louisiana’s dual employee doctrine is

71 710 So.2d 1077 (La. 1998).

72 Id. at 1083 (citing Ermert v. Hartford Ins. Co., 559 So.2d 467 (La.1990) (“. . . a business enterprise cannot

justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.”)).

73 Id.

74 Id.

75 Id.

76 Id. at 4-5

incorrect.77 Morgan is not so limited and, instead, generally “allows both the borrowing

and lending employer to be held liable for the torts of the employee.”78

Wood Group brought this summary judgment motion seeking judgment in its

favor that it has no liability to the Plaintiffs for Dauzat’s negligence. The underlying

premise of Wood Group’s argument, that general maritime law applies, is faulty and the

motion fails for that reason. It is not necessary for the Court to determine whether Dauzat

is the borrowed employee of S2 to deny the motion. Even if the Court were to attempt to

determine whether Dauzat is the borrowed servant of S2 at this point, there are material

facts in dispute. Most importantly, the parties disagree over who had control over Dauzat

and whether the conduct of the parties altered the terms of the Master Service Agreement

between Wood Group and S2.79 These disputes preclude summary judgment. In the

similar case of Gonzalez Elvir v. Trinity Marine Products, Inc., the court denied summary

judgment on the borrowed employee status of a skilled welder because genuine issues of

material fact arose with respect to the control and agreement factors under the Ruiz

analysis.80 The Gonzalez Elvir defendants’ Master Services Agreement disclaimed

borrowed employer status, but the worksite reality suggested otherwise.81 Witnesses

offered contradicting testimony with respect to who had control over the decedent at the

time of the accident.82 In this case, factual disputes of this nature also preclude summary

judgment.

77 R. Doc. 156 at 4.

78 Tillman v. Johnson, No. 95-cv-1490, 1998 WL 779843 (E.D. La. Nov. 4, 1998).

79 R. Doc. 35-4 at § 5.1.3. “Contractor, its employees, and subcontractors shall not be employees, agents,

partners, or joint venturers of Company.” Id.

80 Gonzalez Elvir v. Trinity Marine Products, Inc., No. 16-cv-814, 2019 WL 1434660 (M.D. La. Mar. 29,

2019).

81 Id. at *2-4.

82 Id.

II. Summary Judgment is Denied With Respect to Wood Group’s Liability

for Negligently Training, Hiring, and Retaining Employees.

Plaintiffs allege Wood Group is independently liable for its “[f]ailure to properly

train employees and/or hiring and/or retaining careless and/or unskilled employees.”83

Wood Group also moves for summary judgment in its favor on this claim. For the reasons

set forth above, this negligence claim does not fall within admiralty jurisdiction and the

motion must be decided under Louisiana law.

Wood Group has failed to establish there are no material facts in dispute. F.R.C.P.

56, La. C.C.P. 56, and Local Rule 56.1 of this Court require the movant to provide a

separate and concise statement of all material facts which the movant contends present

no genuine issue. The only statement of undisputed material facts provided by Wood

Group is attached to the original motion for summary judgment. The ninth undisputed

fact is that “[w]hile in the field for his 7-day shifts, S2 provided Dauzat’s safety

programming.”84 Even if this statement were true, it would not be a sufficient basis for

judgment as a matter of law in favor of Wood Group. In any event, Plaintiffs deny this

allegation and point to the Master Service Agreement85 and to the report of their expert

witness, Captain Fazioli’s.86 Plaintiffs point out the Master Service Agreement requires

Wood Group to provide safety training to its employees, including Dauzat.87 The Fazioli

report discusses Wood Group’s training requirements for workplace safety.88 Wood

Group points to Dauzat’s testimony that S2, not Wood Group, provided Dauzat’s safety

83 R. Doc. 68 at ¶ XXII(8).

84 R. Doc. 35-6 at ¶ 9.

85 R. Doc. 46-4 at § 9.1.

86 R. Doc. 46-1 at ¶ 9.

87 R. Doc. 46-4 at § 9.1.

88 R. Doc. 46-7 at 8-11.

training.89 At the most, Dauzat testified he would participate in a safety meeting with S2

employees “[a]t least once a week.”90 Dauzat further testified that he received training

manuals from both Wood Group and S2.91 Plaintiffs point to the deposition of Joshua

Chaney, Wood Group’s corporate representative, who testified that Wood Group paid

Dauzat to undergo paid training that was “separate and apart” from his work in the

Timbalier Bay Field.92 There are disputed issues of material fact with respect to Wood

Group’s negligent training, hiring, and retention of its employees.

Finally, Wood Group argues there is no evidence in the record to establish two

essential elements of Plaintiffs’ claim—one, that Wood Group breached any duty it had to

train Dauzat,93 and, two, that any breach Wood Group caused damage.94 Plaintiffs

respond by pointing to evidence in the record that was not brought up by Wood Group.

First, Plaintiffs point to the affidavit of their expert, Captain Fazioli, who opined that

OSHA employee training standards and customary industry practices obligated Wood

Group to train its employees and ensure they could safely do their jobs.95 Plaintiffs point

to the express terms of the Master Service Agreement to show Wood Group undertook

the “responsibility for training.”96 Wood Group responds that the affidavit of Captain

Marc Fazioli impermissibly goes beyond the scope of his expert report.97 The Court

disagrees. Captain Fazioli’s report discusses training obligations, including training on

89 R. Doc. 35-6 at ¶ 9.

90 R. Doc. 35-3, Stephen Dauzat Dep. 32:8-10.

91 Id. at 105:7-25.

92 R. Doc. 96-3, Joshua Chaney Dep. 57:15-58:2.

93 R. Doc. 58-1.

94 R. Doc. 114.

95 R. Doc. 46 at 23; R. Doc. 46-7.

96 R. Doc. 46 at 24; R. Doc. 46-4 at §§ 9.1-9.2. Plaintiffs also point to Stephen Dauzat’s testimony to show

he was initially trained on the job by Baker Energy employee Stuart Edmonson and not by Wood Group. R.

Doc. 46 at 23-24; Stephen Dauzat Dep. 99:12-24, 103:9-104:23.

97 R. Doc. 58 at 9-10.

fall hazards, required by the Occupational Safety and Health Administration (OSHA),

which “maintains safety and health regulatory authority with regards to operations and

employee activities of M/V MISS MICHELLE.”98 Captain Fazioli’s affidavit states “Wood

Group had a duty to either properly train, or ensure the proper training of, all of its

employees including Mr. Dauzat.”99

The Court finds Wood Group has not met its burden of showing there are no

disputed issues of material fact. Summary judgment is not appropriate on this claim.

CONCLUSION

IT IS ORDERED that Defendant Wood Group PSN, Inc.’s Motion for Summary

judgment is DENIED.

New Orleans, Louisiana, this 30th day of October, 2020.

st ole

UNITED STATES DISTRICT JUDGE

98 R, Doc. 46-7 at 7-11.

99 R. Doc. 46-7 at 3.

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