# Sherman v. Danos, LLC

> District Court, E.D. Louisiana · July 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10648249

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** July 1, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

EASTERN DISTRICT OF LOUISIANA

RANDY SHERMAN, ET AL. CIVIL ACTION
VERSUS NO. 23-258
DANOS, LLC, et al. SECTION: “G”(5)

ORDER AND REASONS

Before the Court is Defendant Danos, LLC’s (“Danos”) Motion for Summary Judgment.1
In this litigation, Plaintiff Randy Sherman (“Sherman”) alleges that Danos and Defendant
Quarternorth Energy, LLC (“Quarternorth”) are liable for injuries which were allegedly caused by
Danos’ employee while working on a crane owned by Quarternorth.2 Danos contends that Sherman
and his allegedly negligent co-employee are borrowed servants of Quarternorth.3 For this reason,
Danos argues that the claims against it are barred.4 For the reasons stated herein, the Court finds
that this issue requires a factual determination and granting of summary judgment would be
inappropriate. Considering the motion, the memoranda in support and opposition to the motion,
the record, and the applicable law, the Court denies the motion.
I. Background
On December 23, 2021, Plaintiff Randy Sherman was working on the Bullwinkle as a crane

1 Rec. Doc. 34.
2 Rec. Doc. 1.
3 Rec. Doc. 34.
4 Id.
contract with Defendant Quarternorth Energy, LLC (“Quarternorth”), formerly known as

Fieldwood Energy, LLC, to provide specialized services aboard offshore platforms.6 The
Bullwinkle was owned and operated by Quarternorth.7 Sherman alleges that he was injured while
attempting to change the cables on a crane.8 The petition states that Sherman was injured due to
the negligent operation of the crane by Paxton Broom (“Broom”).9 It is alleged that Broom was an
individual working in the course and scope of his employment for Danos at the time of the
accident.10
On December 15, 2022, Plaintiffs Randy Sherman and Lisa Sherman (collectively
“Plaintiffs”) filed suit against Danos, LLC and Quarternorth Energy, LLC in the 32nd Judicial
District for the Parish of Terrebonne.11 Plaintiffs allege that the negligence of Broom is attributable
to Danos pursuant to the doctrine of respondeat superior.12 Plaintiffs allege that Quarternorth failed

to provide a safe environment by which to change the cables to the crane and failed to properly
maintain the property free of defects.13

5 Rec. Doc. 1-1 at 1.
6 Rec. Doc. 40 at 12.
7 Rec. Doc. 1-1 at 1.
8 Id. at 2.
9 Id. “Mr. Pat” is later identified as Paxton Broom in Rec. Doc. 34.
10 Id.
11 Id. at 1.
12 Id.
13 Id.
2023, Danos filed a Consent to Removal.15 On March 4, 2024, Danos filed the instant motion.16

On April 8, 2024, Plaintiff Lisa Sherman filed a motion to voluntarily dismiss her claims,17 which
was granted by the Court.18 On April 17, 2024, Sherman filed an opposition to the instant motion.19
On April 23, 2024, Quarternorth filed a memorandum in support of the motion.20 On April 26,
2024, Danos filed a reply memorandum in further support of the motion.21
II. Parties’ Arguments
A. Danos’ Arguments in Support of the Motion
Danos argues that Sherman and Broom are both borrowed servants of Quarternorth.22
Because the Longshore Harbor Workers’ Compensation Act (“LHWCA”) prohibits suits against
co-employees, Danos asserts that Sherman’s claims against Danos are barred.23

Danos contends that Sherman is a payroll employee of GCS.24 Danos states that Broom is
a payroll employee of Danos.25 Danos asserts that the Master Service Contracts (“MSC”) between

14 Rec. Doc. 1.
15 Rec. Doc. 4.
16 Rec. Doc. 34.
17 Rec. Doc. 35.
18 Rec. Doc. 38.
19 Rec. Doc. 40.
20 Rec. Doc. 41.
21 Rec. Doc. 42.
22 Rec. Doc. 34-1 at 1.
23 Id. at 1, 14.
24 Id. at 1.
25 Id.
borrowed servant status.26

Applying the nine-factor test set forth by the Fifth Circuit in Ruiz v. Shell Oil Co.,27 Danos
argues that all factors weigh in favor of finding borrowed servant status.28 First, Danos argues that
Quarternorth controlled what, when, and whether work was being performed on the Bullwinkle.29
Danos points to deposition testimony from Sherman and Walter LeCavalier (“LeCavalier”), GCS’s
corporate representative, to support this argument.30
Second, Danos argues that the work upon the Bullwinkle was performed on Quarternorth’s
behalf.31 Danos contends that based on deposition testimony, all the work being performed on the
Bullwinkle was in furtherance of Quarternorth’s objectives.32
Third, Danos contends that an agreement or understanding existed between the original

26 Id. at 3.
27 413 F.2d 310 (5th Cir. 1969). The Fifth Circuit instructs courts to consider the following factors in
determining whether an individual is a borrowed servant, although no single factor is determinative:
(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 the 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?

28 Rec. Doc. 34-1.
29 Id. at 5.
30 Id. at 6–7.
31 Id. at 8.
32 Id.
GCS, and neither agreement prohibited borrowed employee status.34

Fourth, Danos argues that both Sherman and Broom acquiesced to their working
arrangement with Quarternorth.35 Danos contends that based on deposition testimony, both
Sherman and Broom worked for several years on the Bullwinkle prior to the accident.36 Danos
asserts that Sherman’s acquiescence is evidenced by his testimony wherein he states whom he
received work instructions from, what policies he was subject to, who set his work schedule, and
whether he ever complained about his working conditions or arrangements.37 Danos avers that
both Sherman and Broom understood their working arrangement and acquiesced to them.38
Fifth, Danos argues that GCS and Danos had minimal contacts with Sherman and Broom.39
Danos contends that LeCavalier testified that GCS’s communications with Sherman were limited

to filling orders for crane parts.40 Danos avers that GCS never issued any instructions or
countermanded any assignments from Quarternorth to Sherman.41 Danos asserts that Sherman
testified that he made calls to GCS every day to “let them know what’s going on.”42 Danos avers

33 Id. at 9.
34 Id.
35 Id.
36 Id.
37 Id.
38 Id. at 11.
39 Id.
40 Id.
41 Id. at 12.
42 Id.
Sixth, Danos argues that Quarternorth furnished the place of performance and most of the

tools used for work.44 While Sherman testified that he provided some of his own hand tools, Danos
contends that most of the tools necessary to complete the work were provided by Quarternorth.45
Danos asserts that Broom stated that all the tools he used were provided by Quarternorth.46
Seventh, Danos contends that Sherman worked on the Bullwinkle for at least three years
prior to the accident.47 Danos asserts that Broom worked on the Bullwinkle for nine years prior to
the accident.48 Danos argues that this factor supports finding borrowed servant status.49
Eighth, Danos argues that Quarternorth had the authority to remove Sherman and Broom
from the platform.50 Danos contends that this factor weighs in favor of finding borrowed employee
status.51

Ninth, Danos argues that Quarternorth ultimately had the obligation to pay Sherman and
Broom for the work performed on the Bullwinkle.52 Danos contends that this type of payment
structure supports finding borrowed servant status.53

43 Id.
44 Id.
45 Id.
46 Id.
47 Id. at 13.
48 Id.
49 Id.
50 Id.
51 Id.
52 Id.
53 Id.
asserts that the LHWCA provides the exclusive remedy for an offshore worker against his nominal

employer, which therefore immunizes the nominal employer from a tort action by an injured
employee.55 Danos states that the Fifth Circuit has extended the tort immunity provision to include
borrowing employers under the “borrowed employee doctrine.”56 While Danos maintains that
Broom was not negligent, Danos contends that as Quarternorth’s borrowed employee, Sherman
cannot sue Danos for Broom’s alleged negligence.57 Danos argues that Sherman’s recovery is
limited to the exclusive remedies provided for by the LHWCA.58
B. Sherman’s Arguments in Opposition to the Motion
Sherman contends that the MSCs between Danos and Quarternorth and GCS and
Quarternorth are identical, and both are clear that Danos and GCS are considered independent
contractors.59 Sherman asserts that the parties never intended to consent to a borrowed servant

relationship.60 Sherman states that he received a W-2 from GCS and was required to bring his
timesheets to GCS’s office in order to get paid.61 Sherman avers that he has never received a check
or payment from Danos or Quarternorth.62

54 Id. at 14.
55 Id.
56 Id.
57 Id.
58 Id.
59 Rec. Doc. 40 at 3.
60 Id.
61 Id. at 3–4.
62 Id. at 3.
there to monitor and coordinate all of the individual subcontractors.63 Sherman states that he would

get approval from both Quarternorth and GCS to perform work, and no one told Sherman how to
do his job or supervised him.64
Sherman argues that summary judgment is not proper here.65 Sherman insists that there are
issues of material fact in dispute as to his employment status.66 Sherman contends that he was not
a borrowed employee of Quarternorth at the time of his injuries.67 Sherman asserts that he was
employed by GCS who in turn had a contract with Quarternorth to provide specialized services
aboard offshore platforms.68 Sherman avers that the contract between the parties is clear that the
relationship was that of principal and independent contractor, and Quarternorth would not have
control over the details of the work performed.69

Applying the nine-factor test set out in Ruiz, Sherman argues that, first, the MSC states that
“neither Contractor nor any member of Contractor Group shall be deemed to be subject to the
control or direction of Company [Quarternorth] as to the details of the Work.”70 Sherman contends
that this is an explicit acknowledgment that the work to be performed by GCS’s employees was

63 Id. at 4–5.
64 Id. at 5.
65 Rec. Doc. 40 at 10.
66 Id. at 12.
67 Id.
68 Id.
69 Id.
70 Id. at 15.
himself, LeCavalier, and Steven Kunie, GCS’s coordinator, to support the contention that he was

responsible for his own work.72 Sherman asserts that Quarternorth never exercised the requisite
level of control over his work to rise to the level of borrowed servant status.73
Second, Sherman argues that the work being performed at the time of the accident was that
of GCS.74 Sherman states that he was repairing one of the cranes, which is the business of GCS,
and repairing of the cranes was the purpose of GCS’s contract with Quarternorth.75 Sherman
contends that Quarternorth is in the business of oil and gas drilling, not building and repairing
cranes.76 As such, Sherman asserts that this factor weighs against borrowed servant status.77
Third, Sherman argues that none of the parties intended to enter into a borrowed servant
relationship.78 Sherman contends that the MSCs between Danos and Quarternorth and GCS and

Quarternorth specifically stated that Danos and GCS would be considered independent
contractors.79 Sherman points out that the contract states “…nothing in this contract is intended or
shall be construed to create or establish any agency, joint venture, or partnership between the

71 Id.
72 Id. at 15 – 16.
73 Id. at 26.
74 Id. at 17.
75 Id.
76 Id.
77 Id.
78 Id.
79 Id.
Fourth, Sherman argues that he did not acquiesce to a borrowed servant relationship.82

Sherman contends that because the parties never intended to be in a borrowed servant relationship,
as evidenced by the contracts, there could not be an acquiescence to such a relationship.83 Sherman
states that while Quarternorth did coordinate all the jobs on a given day, the instructions did not
include direction or control over how and by what means the jobs were to be completed.84 Sherman
asserts that even after being given instructions from Quarternorth, he would still get approval from
GCS for his work.85
Fifth, Sherman argues that GCS never terminated its relationship with him.86 Sherman
states that he communicated with GCS daily as evidenced by his and LeCavalier’s deposition
testimony.87 Sherman contends that this factor weighs against borrowed servant status.88

Sixth, Sherman argues that he and GCS provided most of the tools required to perform his
work.89 Sherman points to deposition testimony wherein he stated that ninety percent of the tools

80 Id. at 17–18.
81 Id. at 18.
82 Id.
83 Id.
84 Id.
85 Id.
86 Id. at 19.
87 Id. at 19–20.
88 Id. at 21.
89 Id.
Seventh, Sherman asserts that he worked for numerous companies.92 Sherman states that

he did not exclusively work on Quarternorth’s platforms.93 Sherman argues that as it pertains to
the duration of the contract between GCS and Quarternorth, this factor would be neutral
considering that the parties never intended to acquiesce to an employer-employee relationship.94
Eighth, Sherman contends that GCS retained the right to discharge him.95 Sherman asserts
that the MSC states that while Quarternorth has the right to deny access to its facilities, “Company
[Quarternorth] and Contractor [GCS] agree that Company shall have no right to terminate or affect
any other term or condition of employment of any member of Contractor group.”96 Sherman states
that Steven Kunie also acknowledged that only GCS had the right to terminate an employee.97
Sherman avers that this factor weighs against borrowed servant status.98

Ninth, Sherman contends that GCS was responsible for paying him.99 Sherman states that
his time sheets were sent to GCS and were then approved by Quarternorth.100 Sherman asserts that

90 Id.
91 Id. at 22.
92 Id.
93 Id.
94 Id.
95 Id.
96 Id.
97 Id. at 23.
98 Id.
99 Id.
100 Id.
Sherman argues that this factor weighs heavily against borrowed servant status.102

Finally, Sherman avers that the exclusive remedy provisions of the LHWCA does not grant
Danos immunity from liability as it relates to this accident.103 Mr. Sherman argues that the motion
for summary judgment should be denied.104
C. Quarternorth’s Arguments in Support of the Motion
Quarternorth argues that Sherman and Broom are both borrowed servants of Quarternorth,
and thus, Sherman’s claims should be dismissed as he and Broom were co-employees.105
Quarternorth relies on Mosley v. Wood Group PSN, Inc.106 wherein summary judgment was
granted finding borrowed servant status when seven of the nine Ruiz factors favored borrowed
servant status.107

Applying the nine-factor test set out in Ruiz, first, Quarternorth contends that it controlled
Sherman’s activities while on the Bullwinkle.108 Relying on Mosley, Quarternorth contends that
the fact that Sherman had specialized skills and “did not need to be told how to do his job” does
not preclude borrowed employee status.109 Quarternorth asserts that the first Ruiz factor (control)

101 Id.
102 Id.
103 Id. at 25.
104 Id.
105 Rec. Doc. 41 at 1.
106 760 F. App’x 352 (5th Cir. 2019).
107 Red. Doc. 41 at 2.
108 Id.
109 Id.
Quarternorth argues that the second factor, whose work is being performed, is also

satisfied.111 Quarternorth contends that Sherman admitted that he was doing the work of
Quarternorth on the Bullwinkle.112 Quarternorth asserts that Sherman’s maintenance and repair of
Bullwinkle’s cranes helped personnel and cargos get to and from vessels, and Sherman transferred
tools and equipment to and around the Bullwinkle.113 Quarternorth avers that the second factor is
satisfied.114
Third, Quarternorth argues that the provisions of the MSCs do not prevent a borrowed
employee relationship from existing.115 Quarternorth points to deposition testimony from a
representative of GCS wherein he states that Sherman was working under the control and direction
of Quarternorth.116 Quarternorth relies on Fifth Circuit precedent and a prior decision by this Court

wherein summary judgment was granted even though the third factor did not support borrowed
servant status.117
Fourth, Quarternorth contends that Sherman worked on the Bullwinkle platform for years,
and he was never dissatisfied or complained about his working conditions.118

110 Id. at 3.
111 Id.
112 Id.
113 Id.
114 Id.
115 Id.
116 Id.
117 Id. at 4.
118 Id.
GCS supports the legal conclusion that he was Quarternorth’s borrowed servant.119

Sixth, Quarternorth contends that it provided the cranes, associated materials, the location
of the work, and all of Sherman’s transportation to and from the Bullwinkle.120 Relying on Fifth
Circuit precedent, Quarternorth argues that this is sufficient for a finding of borrowed servant
status.121
Seventh, Quarternorth asserts that Sherman worked on the Bullwinkle for at least three
years prior to the accident, which Quarternorth argues clearly satisfies his borrowed employee
status.122 Quarternorth asserts that this Court has previously held that a period of employment with
the borrowing employer for many years supports borrowed servant status.123
Eighth, relying on Mosley, Quarternorth argues that it had the authority to remove Sherman
from the Bullwinkle.124 Quarternorth contends that this supports a finding of borrowed servant

status.125
Ninth, relying on Mosley, Quarternorth contends that since it reviewed and approved
Sherman’s timesheets, the ninth factor weighs in favor of borrowed servant status.126
Finally, Quarternorth argues that it is clear under Fifth Circuit precedent that summary

119 Id. at 5.
120 Id.
121 Id.
122 Id.
123 Id.
124 Id.
125 Id. at 6.
126 Id.
material fact.127

D. Danos’ Arguments in Further Support of the Motion
In the reply brief, Danos argues that all material facts are established by admissions and
evidence.128 Danos contends that many arguments made by Sherman are unsupported by
deposition testimony.129 Danos argues that the MSCs do not prohibit borrowed servant status.130
Danos states that the language in the MSCs regarding an agency relationship has no bearing on an
employer-employee relationship or borrowed servant status.131
Danos revisits the nine-factor test set out in Ruiz, arguing that the control factor does not
require control of the manner and means by which the agent accomplishes its work, but only that
Quarternorth told Sherman “what work to do, and when and where to do it.”132 Danos references

deposition testimony from Steven Kunie, Sherman’s immediate supervisor, who stated that
Sherman was instructed on what he should do by Quarternorth.133 Danos argues that the cases cited
in Sherman’s memorandum are based on the borrowed servant doctrine as an offense in the
claimant’s administrative claim and are inapplicable here.134

127 Id.
128 Rec. Doc. 42 at 1.
129 Id. at 2.
130 Id. at 3.
131 Id.
132 Id. at 4.
133 Id. at 5.
134 Id.
reiterates that Sherman and Broom both testified that the work performed was on behalf of

Quarternorth.136 Danos argues that Sherman and Broom both acquiesced to borrowed servant
status since they worked on the Bullwinkle for several years, received instructions from
Quarternorth, and never objected to the working arrangements.137
Danos asserts that while GCS may have objected to a job on behalf of Sherman on one
occasion, this does not preclude borrowed servant status.138 Danos contends that GCS and Danos
had minimal contact with Sherman and Broom, which weighs in favor of a finding of borrowed
servant status.139 Danos concedes that Sherman provided many of his own tools for work.140 Danos
states that it adopts and reiterates the arguments made by Quarternorth in support of summary
judgment.141

III. Legal Standard
Summary judgment is appropriate when the pleadings, discovery, and affidavits
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”142 To decide whether a genuine dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrain[s] from making credibility determinations

135 Id. at 6.
136 Id.
137 Id. at 7.
138 Id.
139 Id.
140 Id. at 8.
141 Id.
142 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
party.144 Yet “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.”145
If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then
no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a
matter of law.146 The nonmoving party may not rest upon the pleadings.147 Instead, the nonmoving
party must identify specific facts in the record and articulate the precise manner in which that
evidence establishes a genuine issue for trial.148
The party seeking summary judgment always bears the initial responsibility of showing the
basis for its motion and identifying record evidence that demonstrates the absence of a genuine
issue of material fact.149 “To satisfy this burden, the movant may either (1) submit evidentiary

documents that negate the existence of some material element of the opponent’s claim or defense,
or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at
trial, demonstrate that the evidence in the record insufficiently supports an essential element of the
opponent’s claim or defense.”150 If the moving party satisfies its initial burden, the burden shifts

143 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
144 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves, 530 U.S. at
150).
145 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
146 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank
of Ariz. v. Cites Serv. Co., 391 U.S. 253, 289 (1968)).
147 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
148 See id.; Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
149 Celotex Corp., 477 U.S. at 323.
150 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (internal citation omitted).
how that evidence supports the nonmoving party’s claims.151 The nonmoving party must set forth

“specific facts showing the existence of a ‘genuine’ issue concerning every essential component
of its case.”152
The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied
merely by creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,
by unsubstantiated assertions, or by only a scintilla of evidence.”153 Moreover, the nonmoving
party may not rest upon mere allegations or denials in its pleadings.154
IV. Analysis
Under the LHWCA,155 employees are prevented from bringing tort actions against their
employers and their recovery is limited to certain statutorily prescribed compensation benefits.156

Because a borrowing employer enjoys the same protection as a nominal employer, a “borrowed
employee” (also referred to as “borrowed servant”) is also barred from suing the borrowing
employer for anything more than workers’ compensation benefits.157 Thus, if Sherman is found to
be Quarternorth’s “borrowed employee,” then Sherman will be barred from suing Quarternorth in
tort.

151 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris
v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
152 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
153 Little, 37 F.3d at 1075 (internal citations and quotation marks omitted).
154 Morris, 144 F.3d at 380.
155 33 U.S.C. § 905(a).
156 Melancon v. Amoco Production, 834 F.2d 1238, 1243-1244 (5th Cir. 1988).
157 Id.
this chapter shall be the exclusive remedy to an employee when he is injured . . . by the negligence

or wrong of any other person or persons in the same employ.”158 “While this provision limits an
employee’s rights, it . . . at the same time expands them by immunizing him against suits where
he negligently injures a fellow worker.”159 Therefore, if Sherman and Broom are both found to be
borrowed employees of Quarternorth, Danos could not be held vicariously liable for Broom’s
negligent actions because Sherman was not entitled to recover for the negligence of a person “in
the same employ.”160
Although the parties dispute whether Sherman and Broom were borrowed employees of
Quarternorth at the time of Sherman’s injury, they agree that whether an employee is a borrowed
employee constitutes an issue of law for the Court to decide by applying the nine-factor test set
forth by the United States Court of Appeals for the Fifth Circuit in Ruiz v. Shell Oil Co.161 The

nine factors to consider 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?

158 33 U.S.C. § 933(i).
159 Perron v. Bell Maint. & Fabricators, Inc., 970 F.2d 1409, 1411 (5th Cir. 1992) (internal citation omitted).
160 Mosley v. Wood Grp. PSN, Inc., 760 F. App’x 352, 358 (5th Cir. 2019) (”Section 933(i) of the LHWCA
says that ‘[t]he 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 of any other person or persons in the same employ.’” The parties
agree that based on this section, if Villemarette, Mosley, and Trahan are found to be borrowed employees of
Fieldwood, Wood Group cannot be held vicariously liable for their negligent actions because Mosley was not entitled
to recover for the negligence of “persons in the same employ.”).
161 413 F.2d 310 (5th Cir. 1969).
(9) Who had the obligation to pay the employee?162

No single factor, or combination of them, is determinative; although, in many cases, the
Fifth Circuit has considered the first factor—control—to be the central factor.163 The issue of
borrowed employee status is a “‘matter of law’ for the district court to determine,” but some cases
involve factual disputes on the issue of borrowed employee status and require findings by a
factfinder.164
Applying the first factor, control, it appears that both Quarternorth and GCS had some level
of control over Sherman. Sherman’s deposition testimony indicates that he received instructions
and daily orders from Quarternorth.165 On the other hand, Sherman also testified that he would
check in with GCS daily to “let them know what’s going on,” and GCS would provide approval
and denial for his work.166
Furthermore, the MSC provides the following as it relates to Quarternorth’s control over
GCS’s employees:
Contractor [GCS] shall be, and perform at all times as, an independent contractor;
and neither Contractor nor any member of Contractor Group shall be deemed to
be subject to the control or direction of Company [Quarternorth] as to the details
of the Work. For avoidance of doubt, nothing in this Contract is intended or shall
be construed to create or establish any agency, joint venture, or partnership between
the Parties. It is expressly understood that Company is interested only in the
compliance of the Work with the specifications hereunder and under the applicable
job order. Company may be entitled to make such inspections and audits of the
Work as may be necessary, in Company’s sole discretion, in furtherance of its

162 Id.
163 See, e.g., Melancon, 834 F.2d at 1245.
164 Id. at 1244–45.
165 Rec. Doc. 34-4 at 4–5.
166 Id. at 3–4; Rec. Doc. 40-4 at 45.
herewith and with the applicable job order.167

The contractual language explicitly states that GCS’s employees are not subject to the
control or direction of Quarternorth, which directly conflicts with certain deposition testimony.
Further, the contract contains language stating that “[n]o change, modification, extension, renewal,
ratification, waiver, or rescission of this Contract or of any of the provisions hereof shall be binding
unless it is in writing and signed by both Parties.”168
“Whether the parties had an understanding that modified the contract may raise disputed
factual issues.”169 In Brown v. Union Oil Co. of California, the Fifth Circuit held that conflicting
evidence regarding whether the parties impliedly modified the contract raised a factual dispute that
should be determined by a factfinder when the remaining factors do not overwhelming show that
the employee was a borrowed employee.170 Considering this precedent and the conflicting
evidence in the record, the Court finds that there are fact issues in dispute on the issue of control.
As such, the Court will briefly address the remaining Ruiz factors to determine whether they
overwhelmingly show that Sherman was a borrowed employee.
As to the second Ruiz factor, it appears that the work being done was that of Quarternorth.

Even though Sherman argues that Quarternorth is in the business of oil and gas drilling, not

167 Rec. Doc. 34-2 at 7.
168 Rec. Doc. 34-2 at 11.
169 Brown v. Union Oil Co. of California, 984 F.2d 674, 678 (5th Cir. 1993) (citing Melancon, 834 F.2d at
1245 n.13).
170 Id. at 679.
of Quarternorth’s work.171 Thus, this factor weighs in favor of a finding of borrowed servant status.

The third Ruiz factor asks whether there was an agreement, understanding, or meeting of
the minds between the original and the borrowing employer. As stated above, the MSC between
GCS and Quarternorth appears to directly conflict with the actions carried out by the parties. While
the Fifth Circuit has noted that the reality at the worksite and the parties’ actions in carrying out a
contract can impliedly modify, alter, or waive express contract provisions,172 the MSC clearly
states that no provision of the contract can be altered or modified without written notice signed by
the parties. As such, there are factual issues in dispute as to this factor.
Fourth, based on length of time Sherman worked for Quarternorth, a period of more than
three years, with no complaints regarding his working conditions, it seems that Sherman

acquiesced to his working arrangement. Thus, this factor weighs in favor of a finding of borrowed
servant status.
Fifth, the Court does not find that GCS terminated its relationship with Sherman. While
this factor does not “require a lending employer to completely sever his relationship with the
employee,” it does require that the lending employer “cease control in its servant.”173 Here, GCS
retained control over many important aspects of Sherman’s employment: his pay, his performance,
his supplies, his insurance.174 Deposition testimony also shows that Sherman was required to make

171 See e.g., Melancon, 834 F.2d at 1245.
172 Stauffer Chemical Co. v. W.D. Brunson, 380 F.2d 174, 182 (5th Cir. 1967). See also 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).
173 Mays v. Dir., Off. of Workers' Comp. Programs, 938 F.3d 637, 645 (5th Cir. 2019).
174 See id.
servant status.

Sixth, Sherman stated that he furnished “ninety percent” of his own tools required for work,
some of his tools were provided by GCS, and Quarternorth provided the place of performance and
transportation to and from the place of performance. The Court finds that this factor is neutral.
Seventh, Sherman worked upon the platform owned by Quarternorth for a period longer
than three years. Thus, this factor weighs in favor of a finding of borrowed servant status.
The eighth Ruiz factor asks who had the right to discharge the employee. Per the MSC,
GCS retained the right to terminate its own employees, and Quarternorth had no right to “terminate
or affect any other term of employment of any member of Contractor Group; provided, however,
that, with cause (which includes, without limitation, the failure to abide by any of Company’s

policies), Company may require that Contractor remove a particular member of Contractor Group
from the performance of Work hereunder.”175 “The proper focus when considering who has the
right to discharge the employee” is whether the purported borrower “had the right to terminate [the
worker’s] services with itself,” not his employment with the lending employer.176 The Fifth Circuit
has held that this factor weighed in favor of borrowed employee status where a borrowing
employer had the right to remove men from their position on the platform.177 Thus, this factor
weighs in favor of a finding of borrowed servant status.

175 Rec. Doc. 34-2 at 4.
176 Mays, 938 F.3d at 646 (citing Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d 615, 618 (5th Cir.
1986) (emphasis added)).
177 Mosley, 760 F. App’x at 362.
directly to GCS, and the timesheets were approved by Quarternorth thereafter.178 Danos argues

that this payment structure supports a finding of borrowed servant status, but this is not always
true. The Fifth Circuit has stated that, “[a]lthough a payment to a nominal employer may
sometimes constitute an indirect payment to the borrowed servant, that is not always the
case…Typically, the distinguishing factor is the basis on which the purported borrower makes its
payments.”179 The Fifth Circuit made a distinction between when the nominal employer was paid
based on the number of hours worked by the borrowed servant and where the amount received by
the nominal employer was based on a percentage.180 There has been no evidence presented which
indicates the payment structure between GCS and Quarternorth. As such, the Court finds that
factual issues remain in dispute as to this factor.

Based on the contractual provisions laid out above, and the testimony and conduct
highlighted by both parties, there is conflicting evidence regarding at least two of the nine Ruiz
factors. Further, the remaining factors do not “overwhelmingly” show that Sherman was a
borrowed employee. Given the disputes of fact regarding the most critical factor––control the
parties exercised––the Court will deny summary judgment. Because the Court finds that there are
facts in dispute precluding summary judgment on the issue of whether Sherman was a borrowed
employee of Quarternorth, the Court need not reach the issue of whether Broom was a borrowed
employee of Quarternorth.

178 Rec. Doc. 40-4 at 34–35.
179 Mays, 938 F.3d at 646–47.
180 Id.
VY. Conclusion
For the reasons stated herein, the Court finds that several factual disputes preclude
summary judgment. The factual disputes will be resolved by the jury as fact-finder at trial, and
then the Court will determine Sherman’s borrowed employee status as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that the Motion for Summary Judgment!*! is DENIED.
NEW ORLEANS, LOUISIANA, this _1St day of July, 2024.

cele Lehwei BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

181 Rec. Doc. 34.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10648249. Public record. Not legal advice.