Pierce v. BP America Production Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DARRELL PIERCE, CIVIL ACTION

Plaintiff

VERSUS NO. 21-548

BP AMERICA PRODUCTION SECTION: “E” (4)

COMPANY, ET AL.,

Defendants

ORDER AND REASONS

Before the Court is a motion for summary judgment filed by Defendants, BP

America Production Company (“BPAPC”), BP Exploration & Production Inc. (“BPX”),

and BHP Billiton Petroleum (Deepwater) Inc. (“BHP”), (collectively, “Defendants”).1

Plaintiff Darrell Pierce (“Plaintiff”) filed an opposition to Defendants’ motion for

summary judgment.2 Because Plaintiff’s opposition was defective in some respects, the

Court ordered Plaintiff to file a supplemental opposition,3 and Plaintiff did so.4

Defendants filed a reply.5

PROCEDURAL BACKGROUND

On March 17, 2021, Plaintiff filed his original complaint in this Court, seeking to

recover for the personal injuries he sustained on March 19, 2018.6 Plaintiff named as

Defendants BPAPC and BHP.7 In his original complaint, Plaintiff brought claims under

the Longshore Harbor Worker’s Compensation Act (“LHWCA”), the Jones Act, the

general maritime law, and the Outer Continental Shelf Lands Act (“OCSLA”).8 Plaintiff

1 R. Doc. 24.

2 R. Doc. 31.

3 R. Doc. 32.

4 R. Doc. 33.

5 R. Doc. 35.

6 R. Doc. 1.

7 Id.

8 Id.

filed an amended complaint on June 15, 2021, adding BPX as a Defendant, adding

negligence claims against BPAPC, and retaining his claims under the Jones Act, general

maritime law, and Outer Continental Shelf Lands Act.9 On December 15, 2021, the parties

filed a Joint Stipulation, stipulating that the Atlantis does not qualify as a vessel; that

Plaintiff did not qualify as a seaman under the Jones Act; that, because the Atlantis is a

platform permanently affixed to the Outer Continental Shelf off the Coast of Louisiana,

under the OCSLA, Louisiana law will apply as surrogate federal law to Plaintiff’s claims;

and the general maritime law and the Jones Act will not apply to Plaintiff’s claims.10

UNDISPUTED FACTS

The following facts are undisputed.11 In August 2017, Plaintiff began his

employment with Danos and Curole Marine Contractors, L.L.C. (“Danos”) as a

“Deepwater Operator” and was assigned to the BP Atlantis Oil and Gas Platform (the

“Atlantis”), a semisubmersible platform permanently moored to the Outer Continental

Shelf of the Gulf of Mexico at Green Canyon block 743, which is 150 miles south of New

Orleans, Louisiana.12 During the entirety of his employment with Danos, Plaintiff was

assigned to the Atlantis.13 The Atlantis is owned by BPX and BHP.14 BPX is designated as

the operator of the Atlantis and is charged with the responsibility of conducting all

operations on behalf of BPX and BHP.15 Danos is a contract labor services provider

supplying temporary laborers to various corporate clients, including BP.16

In its capacity as operator of the Atlantic, BPX had contractual relationships with

9 R. Doc. 13.

10 R. Doc. 20.

11 See R. Doc. 24-13; R. Doc. 33-2.

12 R. Doc. 24-13 at ¶¶ 1, 3, 38; R. Doc. 33-1 at ¶¶ 1–2; R. Doc. 24-9 at pp. 1–3.

13 R. Doc. 24-13 at ¶ 39; R. Doc. 33-2 at ¶ 39.

14 R. Doc. 24-13 at ¶ 22; R. Doc. 33-2 at ¶ 22.

15 R. Doc. 24-13 at ¶ 23; R. Doc. 33-2 at ¶ 23.

16 R. Doc. 24-13 at ¶ 40; R. Doc. 33-2 at ¶ 40.

BHP, BPAPC, and Danos.17 BPX contracted with Danos pursuant to a Master Service

Contract for Operations and Maintenance Labor in the Gulf of Mexico, No. BPM-12-

02560 (“MSC”).18 The MSC is “essentially a labor provision contract.”19 Article 7.03 of the

MSC provides that BPX is to be considered the statutory employer of any Danos employee

with respect to work performed off the coast of Louisiana.20 The compensation schedule

of the MSC provides that Danos will supply BPX “with personnel as required by each of

the offshore platforms in the Gulf of Mexico for the potential positions as listed in Table

A,” and that Danos’ “full compensation for complete performance of the Work and

compliance with all the terms and conditions of this Contract shall be in accordance with

the hourly rates per position and level specified in Table A, as well as additional terms, as

applicable, included [herein].”21 Clause 4.5 of the compensation schedule provides that

Danos “may request approval from [BPX], on an annual basis, for individual employee’s

promotions from one position level to another as established” by the terms of the MSC.22

The MSC further requires Danos to record and submit all hours expended in performance

of the work on the Atlantis.23

BPX contracted with BPAPC pursuant to an Amended and Restated General

Services and Agency Agreement, dated December 31, 2005 (“agency agreement”).24

Under the terms of the agency agreement, “BPX designated and appointed BPAPC as its

‘agent and as general contractor’ . . . in connection with any drilling and development

work required by [BPX] in respect of operations offshore the Gulf of Mexico in which

17 R. Doc. 24-13 at ¶ 8; R. Doc. 33-2 at ¶ 8.

18 R. Doc. 24-13 at ¶ 9; R. Doc. 33-2 at ¶ 9.

19 R. Doc. 24-13 at ¶ 10; R. Doc. 33-2 at ¶ 10.

20 R. Doc. 24-13 at ¶ 10; R. Doc. 33-2 at ¶ 10.

21 R. Doc. 24-3 at p. 9; R. Doc. 24-13 at ¶¶ 11–12; R. Doc. 33-2 ¶¶ 11–12.

22 R. Doc 24-3 at p. 26; R. Doc. 24-13 at ¶ 13; R. Doc. 33-2 at ¶ 13.

23 R. Doc. 24-13 at ¶ 14; R. Doc. 33-2 at ¶ 14.

24 R. Doc. 24-13 at ¶ 15; R. Doc. 33-2 at ¶ 15.

[BPX] acts as operator.”25 Under the agency agreement, BPAPC agreed to provide BPX

with “advice, support, work, goods, and services,” and to perform same with its own

personnel.26 BPAPC “employed those workers assigned to the Operations Team, who

supervised and worked with Danos employees such as [Plaintiff].”27

BPX contracted with BHP pursuant to the Green Canyon Block 743 Unit Operating

Agreement (“UOA”) entered on April 20, 2005.28 The UOA adopts many of the terms set

forth in a Joint Venture Operating Agreement (“JVOA”) entered between BPX and BHP

on March 15, 1995.29 Under the UOA, BPX owns 56% of the Atlantis and BHP owns 44%

of the Atlantis.30 The UOA designates BPX as operator of the Atlantis, and in its capacity

as operator, BPX is charged with conducting operations on behalf of BPX and BHP.31 The

agreements contain provisions for removal of the operator.32 The JVOA and UOA provide

that BHP and BPX have jointly purchased certain oil and gas leases on the Outer

Continental Shelf and that BPX and BHP “desire to jointly explore, develop and operate”

such leases.33 The JVOA and UOA further provide that the “Operator pays the costs of the

joint operations and each Participating Party shall reimburse the Operator for the Costs

of each joint operation in proportion to its Participating Interest,”34 and expenditures

exceeding a certain cost cannot be made by the Operator without submission to the other

party.35 In addition to sharing costs, BHP and BPX share benefits, including the right to

25 R. Doc. 24-13 at ¶ 16; R. Doc. 33-2 at ¶ 16.

26 R. Doc. 24-13 at ¶ 17; R. Doc. 33-2 at ¶ 17. See R. Doc. 24-4 at pp. 1–2.

27 R. Doc. 24-13 at ¶ 18; R. Doc. 33-2 at ¶ 18.

28 R. Doc. 24-13 at ¶ 20; R. Doc. 33-2 at ¶ 20.

29 R. Doc. 24-13 at ¶ 21; R. Doc. 33-2 at ¶ 21. See R. Docs. 24-16 at pp. 1–2 and 24-18.

30 R. Doc. 24-13 at ¶ 22; R. Doc. 33-2 at ¶ 22. See R. Doc. 24-16 at p. 5.

31 R. Doc. 24-13 at ¶ 23; R. Doc. 33-2 at ¶ 23. See R. Doc. 24-16 at p. 3.

32 R. Doc. 24-13 at ¶ 28; R, Doc, 33-2 at ¶ 28. See R. Doc. 24-18 at pp. 24–25.

33 R. Doc. 24-13 at ¶ 24; R. Doc. 33-2 at ¶ 24. See R. Docs. 24-16 at p. 1 and 24-18 at p. 9.

34 R. Doc. 24-13 at ¶ 25; R. Doc. 33-2 at ¶ 25. See R. Doc. 24-18 at p. 33.

35 R. Doc. 24-13 at ¶ 29; R. Doc. 33-2 at ¶ 29. See R. Doc. 24-18 at p. 34.

hydrocarbons, under the terms of the agreements.36 The JVOA and UOA further provide

that “[e]ach year the Operator shall develop a proposed Annual Operating Plan and

submit the plan to the Non-Operating Parties.”37 The JVOA and UOA also contain

provisions concerning voting procedures, under which the parties’ voting interests are

based on their respective working interests.38

On March 19, 2018, Plaintiff was working the nightshift and was walking in the

carbon filter area of the Atlantis when he tripped over a ninety-degree pipe connecter and

fell.39

DISPUTED FACTS40

Plaintiff argues Defendants’ motion for summary judgment should be denied

because there are genuine issues of material fact.41 First, Plaintiff argues the MSC between

Danos and BPX creates a genuine issue of material fact regarding who controlled the

Plaintiff because the MSC specifically states Danos shall control the performance of the

details of the work.42 Specifically, Plaintiff points to Article 7 of the MSC, which states as

follows:

In the performance of the Work, Contractor [Danos] is an independent

contractor, shall control the performance of the details of the Work, and

shall be responsible for the results as well as responsible for ensuring that

the performance of the Work is conducted in a manner consistent with the

appropriate safety, health, and environmental considerations including but

36 R. Doc. 24-13 at ¶ 26; R. Doc. 33-2 at ¶ 26. See R. Doc. 24-18 at pp. 18 and 127–129.

37 R. Doc. 24-14 at ¶ 30; R. Doc. 33-2 at ¶ 30. See R. Doc. 24-18 at p. 51.

38 R. Doc. 24-14 at ¶ 31; R. Doc. 33-2 at ¶ 31. See R. Doc. 24-18 at pp. 59–64.

39 R. Doc. 24-14 at ¶¶ 2, 92, 97; R. Doc. 33-2 at ¶¶ 2, 92, 97.

40 Plaintiff’s contention that genuine disputes of material fact exist (R. Doc. 33-1) is based on the allegations

of his complaint, rather than on the evidence. This is not sufficient to carry the burden to show there is a

genuine issue of fact for trial. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). (“Once

a summary judgment motion is made and properly supported, the nonmovant must go beyond the

pleadings and designate specific facts in the record showing that there is a genuine issue for trial. Neither

conclusory allegations nor unsubstantiated assertions will satisfy the nonmovant's burden . . . [p]leadings

are not summary judgment evidence.”) (internal citations and quotations omitted); see also Johnston v.

City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1994).

41 R. Doc. 33 at p. 6.

42 Id. at p. 5.

not limited to Company’s policies thereon.43

Second, Plaintiff argues the fact that Danos paid Plaintiff’s wages creates a genuine issue

of material fact as to whether Plaintiff was a borrowed employee. Plaintiff argues these

disputed facts are sufficient to prevent summary judgment in Defendants’ favor.44

LEGAL 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

of law.”45 “An issue is material if its resolution could affect the outcome of the action.”46

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.”47 All reasonable inferences are drawn in favor of the non-moving party.48

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

favorable to the non-moving party, no reasonable trier of fact could find for the non-

moving party, thus entitling the moving party to judgment as a matter of law.49

“[A] party seeking summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions of

[the record] which it believes demonstrate the absence of a genuine issue of material

43 R. Doc. 24-3 at p. 5.

44 R. Doc. 33 at p. 6. Although Plaintiff contends there is a “genuine issue of material fact” regarding who

paid Plaintiff’s wages, in reality, there is no dispute of fact concerning the payment of Plaintiff’s wages. The

parties agree Plaintiff would submit his hours worked to Defendants for approval, and that, after approval

by Defendants, Plaintiff’s hours would be sent to Danos, that Danos paid Plaintiff’s wages, and that Danos

would then bill BP for Plaintiff’s hours worked. R. Doc. 24-14 at ¶¶ 68–71; R. Doc. 33-2 at ¶¶ 68–71. The

parties dispute whether, as a legal matter, this type of arrangement supports borrowed employee status.

See R. Doc. 24-1 at p. 22; R. Doc. 33 at p. 6.

45 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

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

47 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see

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

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

49 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell

Energy, Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).

fact.”50 To satisfy Rule 56’s burden of production, the moving party must do one of two

things: “the moving party may submit affirmative evidence that negates an essential

element of the nonmoving party’s claim” or “the moving party may demonstrate to the

Court that the nonmoving party’s evidence is insufficient to establish an essential element

of the nonmoving party’s claim.”51 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 non-moving 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.52

If the dispositive issue is one on which the non-moving 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 non-movant’s

claim, or (2) affirmatively demonstrating that there is no evidence in the record to

establish an essential element of the non-movant’s claim.53 If the movant fails to

affirmatively show the absence of evidence in the record, its motion for summary

judgment must be denied.54 Thus, the non-moving 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.”55 “[U]nsubstantiated

assertions are not competent summary judgment evidence. The party opposing summary

50 Celotex, 477 U.S. at 323.

51 Id. at 331.

52 Id. at 322–24.

53 Id. at 331–32 (Brennan, J., dissenting).

54 See id. at 332.

55 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the

evidence relied upon by the non-movant. Once attacked, “the burden of production shifts 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).” Id. at 332–33, 333 n.3.

judgment is required to identify specific evidence in the record and to articulate the

precise manner in which that evidence supports his or her 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.’”56

LAW AND ANALYSIS

In their motion for summary judgment, Defendants argue BPX, BPAPC, and BHP

are entitled to immunity pursuant to the LHWCA against any tort claim asserted against

them by Plaintiff.57 Defendants argue Plaintiff’s claims for employer and co-employee

negligence are barred by the LHWCA as a matter of law.58 Defendants argue the

“undisputed facts establish that Plaintiff was BPX’s borrowed employee.”59 Defendants

also argue BPAPC was Plaintiff’s borrowing employer and that BPAPC’s employees, like

Danos’ employees, qualify as borrowed employees of BPX.60 Defendants further argue

BPAPC qualifies as Plaintiff’s borrowing employer due to its status as agent of BPX.61

Defendants argue BHP, as co-owner and joint venturer of BPX, is entitled to the same tort

immunity as BPX.62

Plaintiff argues he was not the borrowed employee of BPX.63 Plaintiff does not

discuss whether he was a borrowed employee of BPAPC and BHP.64 Plaintiff argues that,

pursuant to the MSC between BPX and Danos, Danos did not relinquish control over

56 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)).

57 R. Doc. 24-1 at p. 15.

58 Id.

59 Id. at pp. 15–25.

60 Id. at pp. 15, 25–26.

61 Id. at pp. 15, 25–26.

62 Id. at pp. 15, 26–27.

63 R. Doc. 33 at p. 4 et seq.

64 See id.

Plaintiff.65 Plaintiff further argues that because Danos paid his wages, Plaintiff was not a

borrowed employee of Defendants.66

The borrowed employee doctrine evolved in the tort context but has since been

applied to cases arising under the LHWCA.67 “Worker's compensation under the LHWCA

is the exclusive remedy for an employee against his employer because the Act bars all

common law tort actions against the employer.”68 This immunity from common law tort

actions also applies in favor of borrowing employers.69 Whether Plaintiff was a borrowed

employee is a question of law,70 and "if sufficient basic factual ingredients are undisputed,

the court may grant summary judgment."71 The Fifth Circuit has set forth nine factors

that are determinative of borrowed employee status:

(1) Who had control over the employee and the work he was

performing, beyond mere suggestion of details or

cooperation?

(2) Whose work was 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?72

65 Id. at p. 4.

66 Id. at p. 6.

67 Total Marine Servs. v. Dir., Office of Worker's Compensation Programs, U.S. Dept. of Labor, 87 F.3d

774, 777 (5th Cir. 1996).

68 Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1243 (5th Cir.), amended on reh'g in part sub nom.

Melancon v. Amoco Prods. Co., 841 F.2d 572 (5th Cir. 1988) (citing 33 U.S.C. § 905(a).

69 Id.

70 Delahoussaye v. Performance Energy Servs., L.L.C., 734 F.3d 389, 393 (5th Cir. 2013).

71 Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617 (5th Cir. 1986).

72 Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993).

I. Who had control?

The first factor examines who had control over Plaintiff and the work he was

performing.73 This factor requires a court to distinguish "between authoritative direction

and control, and mere suggestion as to details . . . where the work furnished is part of a

larger undertaking."74 Plaintiff argues that, in this case, the MSC between Danos and BPX

creates a genuine issue of material fact as to who exercised control over Plaintiff because

the MSC specifically states Danos shall control the performance of the details of the Work.

Specifically, Plaintiff points to Article 7 of the MSC, which states as follows:

In the performance of the Work, Contractor [Danos] is an independent

contractor, shall control the performance of the details of the Work, and

shall be responsible for the results as well as responsible for ensuring that

the performance of the Work is conducted in a manner consistent with the

appropriate safety, health, and environmental considerations including but

not limited to Company’s policies thereon.75

In Crawford v. BP Corporation North America Inc., another case involving the

intersection between the borrowed employee doctrine and the tort immunity under the

LHWCA, this Court was presented with a Master Service Agreement, entered between

Danos and BPAPC, containing a contractual provision identical to the one quoted above.76

There, the Court explained that

The MSA purports to prohibit Matthew's borrowed employee status.

“Obviously parties to a contract cannot automatically prevent a legal status

like ‘borrowed employee’ from arising merely by saying in a provision in

their contract that it cannot arise.” (Melancon v. Amoco Prod. Co., 834 F.2d

1238, 1245 (5th Cir.1988)). The MSA provides that Danos will control all

aspects of the work performed on the MARLIN. The reality at the worksite,

however, was the exact opposite: BP America controlled and supervised

Matthew's work in all material respects. The Court finds that the parties'

actions in carrying out the MSA impliedly modified or waived the provision

73 Id.

74 Ruiz v. Shell Oil Co., 413 F.2d 310, 313 (5th Cir. 1969) (quoting Standard Oil Co. v. Anderson, 212 U.S.

215, 222 (1909)).

75 R. Doc. 24-3 at p. 5.

76 Crawford v. BP Corp. N. Am. Inc., No. CIV.A. 13-445, 2015 WL 1190123 (E.D. La. Mar. 16, 2015).

regarding control. (See Brown [v. Union Oil Co. of Cal., 984 F.2d 674, 678

(5th Cir.1993) (per curiam)] (“The parties' actions in carrying out the

contract can impliedly modify or waive the express provision.”)). The

parties had a tacit understanding that BP America would exercise control

over Matthew.77

The same reasoning applies in this case: the contractual provision in the MSC between

Danos and BPX cannot prevent Plaintiff from acquiring borrowed employee status as a

matter of fact.

In Melancon v. Amoco Production Co., the Fifth Circuit affirmed the district

court's finding, that the control factor weighed in favor of borrowed-employee status.78

The Fifth Circuit concluded that Amoco, the alleged borrowing employer, “clearly had

control” over the plaintiff because the plaintiff “took orders” from Amoco personnel,

Amoco personnel “told him what work to do, and when and where to do it.”79 The Fifth

Circuit further explained that the nominal, lending employer in Melancon “gave no

instructions” to the plaintiff other than to report “to the Amoco field and perform the work

requested by Amoco personnel.”80

The situation in this case is factually similar to that in Melancon. In this case, the

undisputed facts show that BPAPC and BPX controlled Plaintiff’s work. In support of their

contention that BPAPC and BPX controlled Plaintiff’s work, Defendants cite Plaintiff’s

deposition and the affidavit of Mark King, a Sales Manager at Danos and Plaintiff’s

supervisor while Plaintiff was employed with Danos.81 In his affidavit, King attests as

follows:

Once Danos assigns an employee to work for a customer and the customer

has approved the employee, the customer has operational control over the

77 Id. at *3.

78 Melancon v. Amoco Prod. Co., 834 F.2d 1238 (5th Cir.), amended on reh'g in part sub nom. Melancon

v. Amoco Prods. Co., 841 F.2d 572 (5th Cir. 1988).

79 Id. at 1245.

80 Id.

81 R. Doc. 24-10.

employee from the time the employee is dispatched to until he returns from

the customer's work site.

Danos employees are instructed to report to work at their assigned location,

receive daily work assignments from Danos' customer, and work under the

sole direction and supervision of the customer's supervisory personnel.

On March 19, 2018, Pierce was employed by Danos as a production operator

assigned to the Atlantis, a semi-submersible platform, moored on the Outer

Continental Shelf in the Gulf of Mexico, off the coast of Louisiana.

While working on the Atlantis, Pierce was directly supervised by BP

personnel.

Danos exercised no control over Pierce while he was working on the

Atlantis.

There were no Danos supervisors or employees on the Atlantis who directed

or supervised Pierce's work.

Pierce received his specific work instructions while on the Atlantis from BP's

production team lead/production supervisor and other BP employees.

When Pierce arrived on the Atlantis, he received his work assignments from

a BP personnel and/or computer situated aboard the Atlantis.

The listing of work assignments Pierce received from the BP computer

aboard the Atlantis were prepared by the Planning Scheduler, the Offshore

Installation Manager ("OIM"), and the Maintenance Supervisor - all of

whom were BP employees.

I did not exercise any control over how Pierce was to perform his work

aboard the Atlantis.

I did not provide Pierce with any daily work assignments while he was

working on the Atlantis.82

Plaintiff does not dispute any of these facts;83 however, Plaintiff, relying on the allegations

of his complaint and the terms of the MSC between Danos and BPX, argues that the

control factor is not met in this case.84

82 R. Doc. 24-10 at ¶¶ 8–9, 11, 13–14, 18–21, 23–24.

83 See R. Doc. 24-13 at ¶¶ 42-43, 47, 50–51, 54; R. Doc. 33-2 at ¶¶ 42-43, 47, 50–51, 54.

84 R. Doc. 33 at pp. 5–6; see generally R. Doc. 33-1.

In the course of his employment on the Atlantis, Plaintiff worked as a Production

Operations Technician on the Production team, and he received his daily work

assignments from a supervisor employed by BPAPC.85 Plaintiff’s immediate supervisor

on the Atlantis was BPAPC employee Billy Sam Locke, who was the Production

Supervisor/Team Lead of the Production Team to which Plaintiff was assigned.86 As

Production Team Lead, Locke provided the Production Team, including Plaintiff, with

daily assignments and instructions.87 Plaintiff participated in daily meetings, daily

toolbox talks, and routine safety meeting alongside BPAPC personnel on the Production

Team, and the daily meetings, toolbox talks, and safety meetings were all run by BP

personnel.88 Plaintiff’s daily activities were performed pursuant to BP’s permitting

system.89

The summary of the record is clear that BPX and BPAPC exercised authoritative

control over Plaintiff’s work on the Atlantis. No reasonable juror could find otherwise.

The first factor weighs in favor of borrowed employee status.

II. Whose work was being performed?

The second factor examines whose work was being performed.90 In his affidavit,

King attests that “[a]ll the work Pierce performed on the Atlantis was BP's work.”91 In his

affidavit, Locke attests that “[a]ll work performed by the Danos Production Operations

Technicians was bp’s work for the Atlantis.”92 Furthermore, in his deposition, Plaintiff

testified that he considered the work he was assigned to be “essentially BP’s work for the

85 R. Doc. 24-9 at p. 5.

86 R. Doc. 24-13 at ¶ 50; R. Doc. 33-2 at ¶ 50.

87 R. Doc. 24-11 at ¶ 10.

88 Id. at ¶¶ 11–12, 16.

89 Id. at ¶¶ 13–16.

90 Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993).

91 R. Doc. 24-10 at ¶ 22.

92 R. Doc. 24-11 at ¶ 17.

platform.”93 Moreover, Plaintiff admits that “[a]ll worked performed by [him] as a Danos

Production Operations Technician was bp’s work for the Atlantis.”94 Accordingly, the

second factor weighs in favor of borrowed employee status.

III. Was there an agreement or understanding between Danos and BP America?

The third factor examines whether there was an agreement, understanding, or

meeting of the minds between the original and the borrowing employer.95 Plaintiff and

other Danos employees worked aboard the Atlantis pursuant to an MSC entered between

BPX and Danos.96 The MSC contained Article 7, quoted above, which purports to prohibit

Plaintiff from acquiring borrowed employee status.97 “The reality at the worksite and the

parties' actions in carrying out a contract, however, can impliedly modify, alter, or waive

express contract provisions.”98 In this case, it is clear BPX and Danos had a meeting of

the minds that Plaintiff would take his direction from the Defendants. Danos clearly

understood—and even intended—that Plaintiff would be taking his instructions from

Defendants, notwithstanding Article 7 of the MSC.99 It is undisputed that Danos “is a

contract labor services provider that supplies temporary laborers to various corporate

clients,” that Danos “assigns its payroll employees to work at different industrial and

commercial business for the purpose of performing Danos customer’s work,” and that “BP

has been a customer of Danos for many years and regularly requests the temporary

93 R. Doc. 24-2 at p. 33.

94 R. Doc. 24-13 at ¶ 63; R. Doc. 33-2 at ¶ 63.

95 Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993).

96 See R. Doc. 24-3.

97 Id. at p. 5.

98 Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 (5th Cir.), amended on reh'g in part sub nom.

Melancon v. Amoco Prods. Co., 841 F.2d 572 (5th Cir. 1988) (citing McDonough Marine Service, Inc. v.

M/V ROYAL STREET, 465 F.Supp. 928, 935 (E.D.La.1979), aff'd 608 F.2d 203 (5th Cir.1979); Stauffer

Chemical Co. v. W.D. Brunson, 380 F.2d 174, 182 (5th Cir.1967)).

99 R. Doc. 24-3 at p. 5.

services of Danos laborers.”100 The record supports a finding that Danos—a temporary

labor services provider which has provided laborers to BP for many years—had a tacit

understanding with Defendants that Defendants would exercise control over Plaintiff.

Plaintiff has offered no summary judgment evidence to raise a genuine dispute of material

fact concerning whether there was an agreement between the original and the borrowing

employer. Therefore, the third factor weighs in favor of borrowed employee status.

IV. Did Plaintiff acquiesce?

The fourth factor examines whether the employee acquiesced in the new work

situation.101 "The focus of this factor is whether the employee was aware of his work

conditions and chose to continue working in them."102 The Fifth Circuit has found that

“one month is a sufficient amount of time for [the employee] to appreciate the new work

conditions” and acquiesce to them.103 It is undisputed Plaintiff worked on the Atlantis for

a year and a half, encompassing the entirety of his employment with Danos.104 This factor

favors borrowed employee status.

V. Did Danos terminate its relationship with Plaintiff?

The fifth factor examines whether the original employer terminated its

relationship with the employee.105 This factor does not require the lending employer to

completely sever its relationship with the borrowed employee.106 Instead, the focus is "on

the lending employer's relationship with the employee while the borrowing occurs."107 As

set forth above, the undisputed evidence demonstrates that Danos exercised little to no

100 R. Doc. 24-13 at ¶¶ 40–41, 44; R. Doc. 33-2 at ¶¶ 40–41, 44.

101 Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993).

102 Brown v. Union Oil Co. of California, 984 F.2d at 678 (5th Cir. 1993).

103 Brown, 984 F.2d at 674, 678.

104 R. Doc. 24-13 at ¶ 39; R. Doc. 33-2 at ¶ 39. See also R. Doc. 24-10 at ¶ 30.

105 Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993).

106 Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617 (5th Cir. 1986).

107 Id. at 618.

control over Plaintiff while he worked on the Atlantis, and that Danos placed no

restrictions on Defendants with respect to Plaintiff's employment.108 Therefore, this

factor weighs in favor of borrowed employee status.109

VI. Who furnished the tools and place for performance?

The sixth factor examines who furnished the tools and the place for performance

of the employee’s work.110 As to the place for performance of the work, it is undisputed all

of Plaintiff’s work during the course of his employment by Danos was performed on the

Atlantis.111 The UOA entered between BPX and BHP provides that BPX owns 56% of the

Atlantis, and BHP owns 44% of the Atlantis.112 Defendants provided the place for

performance of Plaintiff’s work by virtue of their ownership of the Atlantis.

In their statement of uncontested fact, at paragraph 67, Defendants state it is an

undisputed fact that “BP provided all tools” for performance of Plaintiff’s work on the

Atlantis.113 In support of their contention that it is undisputed that “BP provided all tools”

for performance of Plaintiff’s work, Defendants cite to the declaration of Mark King, who

attests that “BP provided the tools” for the performance of Plaintiff’s work on the

Atlantis.114 In his response to Defendants’ statement of uncontested fact, Plaintiff, at

paragraph 67, states as follows:

Deny, as it is uncertain whether BP provided all tools . . . for the

performance of Pierce’s work on the Atlantis. The statement from the

declaration of Mark King states that BP provided the tools . . . [for] Pierce’s

work on the Atlantis; however, [Mark King’s declaration] does not state all

tools were provided.115

108 R. Doc. 24-13 at ¶¶ 42–43, 45–54; R. Doc. 33-2 at ¶¶ 42–43, 45–54.

109 See id. (finding fifth factor weighed in favor of borrowed employee status in substantially similar

circumstances).

110 Billizon, 993 F.2d at 105.

111 R. Doc. 24-14 at ¶¶ 38–39; R. Doc. 33-2 at ¶¶ 38–39.

112 R. Doc. 24-16 at p. 5.

113 R. Doc. 24-13 at ¶ 67.

114 R. Doc. 24-10 at ¶ 28.

115 R. Doc. 33-2 at ¶ 67.

“The substantive law governing the claims determines the elements essential to the

outcome of the case and thus determines which facts are material.”116 The question of who

provided the tools for the performance of Plaintiff’s work presents a material fact because

it is one of the nine factors that are determinative of the legal question of borrowed

employee status.117 “A dispute of material fact is ‘genuine’ if the evidence would allow a

reasonable jury to find in favor of the non-movant.118 In this case, the dispute regarding

who provided the tools for performance of Plaintiff’s work is not a genuine dispute of fact

because a reasonable jury could not find for Plaintiff on this issue. The undisputed

evidence shows that Defendants provided the tools for the performance of Plaintiff’s

work. Plaintiff testified during his deposition that BP, and not Danos, provided the tools

he used to perform his job on a daily basis.119 In his affidavit, King attests that “Danos had

no equipment on the Atlantis,” and that “[w]hen working on the Atlantis, Pierce utilized

only BP equipment.”120 Plaintiff admits Danos had no equipment on the Atlatnis and that

Danos did not provide him with any tools for his work.121 King further attests that “Danos

did not provide Pierce with any tools for his work on the Atlantis” and “BP provided the

tools and the place for the performance for Pierce’s work on the Atlantis.”122 This factor

favors borrowed employee status.

116 Callan v. Deutsche Bank Tr. Co. Americas, 11 F. Supp. 3d 761, 766–67 (S.D. Tex. 2014), amended, 93 F.

Supp. 3d 725 (S.D. Tex. 2015).

117 See Delahoussaye v. Performance Energy Servs., L.L.C., 734 F.3d 389, 393 (5th Cir. 2013) (holding that

whether Plaintiff was a borrowed employee is a question of law.); see also Billizon v. Conoco, Inc., 993 F.2d

104, 105 (5th Cir. 1993).

118 Callan, 11 F. Supp. 3d at 766 (S.D. Tex. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

(1986)).

119 R. Doc. 24-2 at pp. 33–34.

120 R. Doc. 24-10 at ¶¶ 25–26.

121 R. Doc. 24-13 at ¶ 66.

122 Id. at ¶¶ 27-28.

VII. Was Plaintiff's "employment" with the new employer over a considerable length

of time?

The seventh factor examines whether the employee’s new employment was over a

considerable length of time.123 It is undisputed Plaintiff worked on the Atlantis for a year

and a half, which encompassed the entirety of his offshore employment with Danos.124

This factor clearly favors borrowed employee status.

VIII. Who had the right to discharge Plaintiff?

The eighth factor examines who had the right to discharge the employee.125 The

Fifth Circuit has instructed that the proper focus when considering who has the right to

discharge the employee is on whether the borrowing employer had the right to terminate

the employee’s services with itself.126 It is undisputed that, if BP was not satisfied with his

job performance on the Atlantis, BP, specifically Billy Sam Locke, could have Plaintiff

removed from the Atlantis platform.127 In addition, in his deposition, Plaintiff testified

that if he was to be terminated from his work on the Atlantis, it would be “someone at BP”

who would make that decision because he “work[ed] for them.”128 Plaintiff offered no

summary judgment evidence showing BP did not have the right to terminate Plaintiff’s

services on the Atlantis.

This factor clearly weighs in favor of borrowed employee status.

IX. Who had the obligation to pay Plaintiff?

The ninth factor examines who, as between the borrowing employer and lending

employer, had the obligation to pay the employee.129 The following facts are undisputed:

123 Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993).

124 R. Doc. 24-13 at ¶ 39; R. Doc. 33-2 at ¶ 39. See R. Doc. 24-10 at ¶ 30.

125 Billizon, 993 F.2d at 105.

126 Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 618 (5th Cir. 1986).

127 R. Doc. 24-13 at ¶ 72; R. Doc. 33-2 at ¶ 72.

128 R. Doc. 24-2 at pp. 17–18.

129 Billizon, 993 F.2d at 105.

Each day, Pierce, as a Danos Production Operations Technician, would

submit his hours worked via an electronic portal.

Pierce’s hours worked were then submitted to a bp Production

Supervisor/Team Lead for review and approval.

After approval by bp, Pierce’s hours worked were then sent to Danos.

Danos would then bill bp for Pierce’s hours worked.130

Plaintiff argues that, because Danos paid his wages, Plaintiff was not a borrowed

employee of any Defendant.131 The Fifth Circuit, however, has held this type of pay

arrangement supports borrowed employee status.132 Thus, the Court concludes the ninth

factor weighs in favor of borrowed employee status.

Each of the nine Ruiz factors supports the conclusion that Plaintiff was the

borrowed employee of BPX and BPAPC.133 The Court thus finds as a matter of law that

Plaintiff was the borrowed employee of BPX and BPAPC.

The Court now turns to the issue of BHP’s status as Plaintiff’s borrowing employer

and whether BHP is entitled to the shield from tort immunity provided under the

LHWCA. In Davidson v. Enstar Corporation, the Fifth Circuit concluded that “joint

venturers . . . were entitled to the shield from tort liability if they employed workers

covered by the LHWCA.”134 The Fifth Circuit in Davidson listed the following four factors

as relevant to determining whether the parties to an endeavor are joint venturers: “(1)

130 R. Doc. 24-13 at ¶¶ 68–71; R. Doc. 33-2 at ¶¶ 68–71.

131 R. Doc. 33 at p. 6.

132 See Brown, 984 F.2d at 678 (finding ninth factor weighed in favor of borrowed employee status where

borrowed employee was paid by nominal employer based on time sheets verified daily by the borrowing

employer).

133 With respect to BHP, BHP was a non-operating joint venturer with BPX, and, as a result, BHP had little

to no involvement in the day-to-day operations on the Atlantis. See R. Doc. 24-18 at p. 17, 23; see also R.

Doc. 24-16 at p. 5.According, the nine Ruiz factors do not support the conclusion that BHP was Plaintiff’s

borrowing employer. However, for the reasons set forth below, BHP is entitled to invoke the immunity

accorded to an employer under the LHWCA as a defense to Plaintiff’s tort claims on the basis of BHP’s

status as a joint venturer with BPX, Plaintiff’s borrowing employer.

134 848 F.2d 574, 577 (5th Cir.), on reh'g, 860 F.2d 167 (5th Cir. 1988).

whether the parties intended to form a partnership or joint venture; (2) whether the

parties share a common interest in the subject matter of the venture; (3) whether the

parties share profits and losses from the venture; and (4) whether the parties have joint

control or the joint right of control over the venture.”135

In Parker v. McDermott, Inc., defendant Elf Aquitane Operating, Inc. filed a

motion for summary judgment, alleging that plaintiff's exclusive remedy against it was

for benefits provided under the LHWCA and defendant Energy Development Corporation

filed a motion for summary judgment, arguing that as a joint venturer with Elf Aquitane

Operating in owning Platform 199–A, it was also the plaintiff’s employer and was,

therefore, entitled to the same immunity from liability as Elf Aquitane Operating.136 The

court, after concluding that defendant Elf Aquitane Operating’s motion for summary

judgment should be granted because it was the plaintiff’s employer and the LHWCA

provided the plaintiff’s sole remedy against it, addressed the question of whether Energy

Development formed a joint venture with Elf Aquitane Operating.137 The court examined

the October 15, 1987 Offshore Operating Agreement to which Energy Development and

Elf Aquitane Operating were parties.138 Under the agreement, Elf Aquitane Operating was

designated as the operator, Energy Development was a non-operating party, and the

agreement provided for conditions under which the operator could be removed.139 The

court also pointed out that the parties shared “a common interest in the subject matter of

the venture,” and shared “profits and losses.”140 With respect to the two offshore leases

governed by the parties’ agreement, Elf Aquitane Operating owned a 75% interest, Energy

135 Id.

136 No. CIV. A. 89-4269, 1990 WL 223011, at *1 (E.D. La. Dec. 18, 1990).

137 Id. at *3–*4.

138 Id.

139 Id. at *4.

140 Id.

Development owned a 15.9725% interest, and two other parties owned the remaining

interest.141 The agreement contained voting provisions.142 The court also explained that

“offshore operating agreements with unequal shares and rights of control” constitute joint

ventures.143 The court concluded that the agreement in that case satisfied all four factors

for determining whether parties to an endeavor formed a joint venture and that, because

Energy Development was a joint venturer with Elf Aquitane Operating, Energy

Development was immune from liability under the LHWCA.144

In this case, the relationship and agreements between BPX and BHP are factually

similar to the relationship and agreement in Parker v. McDermott, Inc. In this case, BPX

and BHP’s agreements demonstrate their intent to form a joint venture by expressing

their “desire to jointly explore, develop and operate” the jointly purchased oil and gas

leases.145 This satisfies the first Davidson factor. Further, the agreement designates BPX

as the operator, and contains provisions for removal of the operator. The parties may elect

to participate in certain operations, and the operator is reimbursed for expenditures it

incurs during operations by the parties according to their participating interests.

Expenditures exceeding a certain amount cannot be made without prior approval from

non-operating parties. The participating parties share not only the costs, but also the

benefits, of the operations. Thus, because the parties share a common interest in the

subject matter of the venture, and they share profits and losses, the second and third

Davidson factors are satisfied. Finally, the fourth Davidson factor is met because the

parties have joint right of control over the venture by virtue of the following: the parties’

141 Id.

142 Id.

143 Id. at *5.

144 Id.

145 R. Doc. 24-13 at ¶ 24; R. Doc. 33-2 at ¶ 24. See R. Docs. 24-8 at p. 9 and 24-16 at p. 1.

right to choose to participate in particular operations; the obligations owed by the

operator to the non-operating party; the expenditure limits placed upon the operator; the

provisions for removal of the operator; and the voting rights of each party. Therefore, the

Court concludes BHP and BPX formed a joint venture, and because BHP is a joint

venturer with BPX in respect to the operations on the Atlantis platform, BHP also

immune from liability for Plaintiffs tort claims under the LHWCA.

CONCLUSION

IT IS ORDERED that the motion for summary judgment"? filed by Defendants,

BP America Production Company, BP Exploration & Production Inc., and BHP Billiton

Petroleum (Deepwater) Inc., is GRANTED. Judgment is entered in favor of Defendants,

BP America Production Company, BP Exploration & Production Inc., and BHP Billiton

Petroleum (Deepwater) Inc. and against Plaintiff, Darrell Pierce, on all claims.

New Orleans, Louisiana, this 8th day of June, 2022.

et oa he

UNITED STATES DISTRICT JUDGE

146 R, Doc. 24.

22