The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DANNY KENNEDY CIVIL ACTION
VERSUS NO. 22-4459
LIQUID MUD BARGES, INC. and SECTION: “J”(5)
HPC INDUSTRIAL SERVICES
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 32) filed by
Defendant, HPC Industrial Services, LLC (“HPC”). Plaintiff Danny Kennedy (Rec.
Doc. 43) and Defendants MARMAC, LLC (Marmac) and Deep South Construction
and Salvage, LLC (Deep South) (Rec. Doc. 41) filed oppositions, to which and HPC
replied (Rec. Doc. 43). Having considered the motion and legal memoranda, the
record, and the applicable law, the Court finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This case arises from a November 9, 2021 incident on board a liquid tank barge
owned by Defendant Marmac and chartered to Deep South on Bayou Black in Gibson
Louisiana. Kennedy alleges that, while he was cleaning the liquid tank barge at
HPC’s Gibson facility, a barge inspector, Dickie Torbert, told him to turn a valve,
which released significant pressure and knocked him fifteen feet into the air and
overboard into the bayou. Kennedy sustained injuries to his shoulder and lower back.
At the time, Kennedy was employed by Elite Workforce, LLC (“Elite”) and was
assigned to work at HPC starting in October 2021. Elite and HPC had a Service
Agreement controlling the scope of their relationship, the status of the Elite
employees on the HPC jobs, and their mutual responsibilities.
As a result of HPC’s, Marmac’s, and Deep South’s alleged negligence, Kennedy
seeks damages for his personal injuries. He is also receiving compensation from his
employer and his employer’s carrier under the Longshore and Harbor Workers’
Compensation Act in a separate lawsuit. Twice, the parties jointly moved to continue
the trial and pretrial deadlines in this matter to allow for settlement of the workers’
compensation matter. (Rec. Docs. 26, 31). The Court granted the motions and reset
the trial and other deadlines. (Rec. Docs. 29, 36). Trial is now set for October 15, 2024.
In the instant motion, HPC argues that Kennedy was HPC’s borrowed servant
at the time of this incident, requiring his third-party tort claim against HPC to be
dismissed because his only remedy against HPC is a workers’ compensation claim
under the LHWCA. (Rec. Doc. 32). Kennedy contends that the motion should be
denied because he was an independent contractor employed by Elite, he was not
under the control of HPC, he did not acquiesce to being HPC’s employee, and he was
not injured on HPC’s property. (Rec. Doc. 42). Marmac and Deep South also argue
that genuine issues of material fact remain as to whether Kennedy was HPC’s
borrowed employee because insufficient discovery has taken place: only Kennedy had
been deposed as of the filing of HPC’s motion for summary judgment. (Rec. Doc. 41).
In reply, HPC notes that, even though the Court granted two continuances of
the trial date, the most recent continuance did not set a new discovery cutoff or
motions deadline, and Marmac and Deep South never requested further discovery in
order to sufficiently respond to the instant motion, as contemplated under Federal
Rule of Civil Procedure Rule 56(d). (Rec. Doc. 43). HPC also argues that the
oppositions demonstrate that most of the relevant factors favor a finding that
Kennedy was HPC’s borrowed servant. Id.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56); Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a
dispute as to any material fact exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but
a party cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be
satisfied that “a reasonable jury could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving
party can then defeat the motion by either countering with sufficient evidence of its
own, or “showing that the moving party’s evidence is so sheer that it may not
persuade the reasonable fact-finder to return a verdict in favor of the moving party.”
Id. at 1265.
DISCUSSION
The parties do not dispute that Kennedy is a longshoreman or harbor worker
whose remedy against his employer is limited to compensation and medical benefits
under the LHWCA. 33 U.S.C. § 933(i) (“The right to compensation or benefits under
this chapter shall be the exclusive remedy to an employee when he is injured … by
the negligence or wrong of any other person … in the same employ.”). However, HPC
submits that Kennedy was HPC’s borrowed employee, which would also limit his
remedy against HPC to his benefits under the LHWCA.
The Fifth Circuit uses a nine-factor test from Ruiz v. Shell Oil Co., 413 F.2d
310, 313 (5th Cir. 1969) to determine borrowed servant status. These nine factors are:
1. Who has control over the employee and the work he is performing, beyond
mere suggestion of details or cooperation?
2. Whose work is being performed?
3. Was there an agreement, understanding, or meeting of the minds between
the original and the borrowing employer?
4. Did the employee acquiesce in the new work situation?
5. Did the original employer terminate his relationship with the employee?
6. Who furnished tools and place for performance?
7. Was the new employment over a considerable length of time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?
Barrios v. Freeport–McMoran Res. Partners Ltd. P’ship, No. 93–0092, 1994 WL 90456,
*2 (E.D. La. Mar. 11, 1994) (Livaudais, J.); Baker v. Raymond Int'l, Inc., 656 F.2d
173, 178 (5th Cir. 1981). “No one factor is determinative, and courts are instructed to
look to the “venture as a whole.” Cosmopolitan Shipping Co. v. McAllister, 337 U.S.
783, 795 (1949). When the borrowed servant doctrine is used as a defense to tort
liability of the LHWCA context, the Fifth Circuit focuses on the fourth, fifth, sixth,
and seventh factors, because these factors deal with the question of “whether the
circumstances of the employee’s employment are such that the defendant ‘should be
considered an employer and not a third party under the LHWCA.’” Melancon v.
Amoco Prod. Co., 834 F.2d 1238, 1245 n.12 (5th Cir. 1988) (citing Gaudet v. Exxon
Corp., 562 F.2d 351, 356-57 (5th Cir. 1977), cert. denied 479 U.S. 838 (1986)).
Whether Kennedy is the borrowed servant of HPC is a question of law; however, “[i]f
some of the factors involve a factual dispute, those factors must be submitted to the
jury, unless a sufficient number of the other factors clearly favor summary judgment.”
Barrios, 1994 WL 90456 at *2; Capps v. N.L. Baroid–NL Industries, Inc., 784 F.2d
615, 617 (5th Cir.1986) (citing Gaudet, 562 F.2d at 357–58). The Court evaluates the
Ruiz factors as follows:
1. Who has control over the employee and the work they are
performing, beyond mere suggestion of details or cooperation?
The first factor, control, weighs in favor of a finding of borrowed servant status.
HPC avers that it exerted significantly greater control over Kennedy than did his
nominal employer, Elite, which only assigned Kennedy to work at HPC and did not
exercise any control over his work. (Rec. Doc. 32-1, at 6). Kennedy testified that he
took all of his instruction from HPC employees, that there were no Elite supervisors
on the job site, that HPC supervisors were in charge of the workers on the project,
and that he had never been to Elite’s office and did not know anyone there. (Rec. Doc.
32-2, at 2-9). Marmac and Deep South note that, at the time of the incident, it was
Marmac’s barge inspector, not an HPC employee, who instructed Kennedy to work on
the valve, and Kennedy’s HPC’s supervisor was not on board the barge at the time.
(Rec. Doc. 42-2, at 7-9). However, the fact that Marmac’s employee directed Kennedy
on a single occasion does not affect the fact that HPC clearly had more control over
Kennedy and his work than his nominal employer, Elite.
2. Whose work is being performed?
The parties do not dispute that Kennedy was performing HPC’s work cleaning
a barge under a contract with Marmac and Deep South. However, at the time of the
incident, Kennedy claims he was working at the direction of a barge inspector who
was not employed by HPC. Therefore, this factor raises a factual dispute and is
neutral as to borrowed-employee status.
3. Was there an agreement, understanding, or meeting of the minds
between the original and the borrowing employer?
The Service Agreement between Elite and HPC states that Elite will provide
labor to supplement HPC’s existing staff. (Rec. Doc. 32-4, at 5). The Agreement
explicitly states that Elite’s employees perform their work as independent
contractors, not employees of HPC. Id. at 5. It goes on to state that HPC shall not
attempt to circumvent Elite and hire Elite’s employees. Id. at 6. Elite and HPC also
agreed to indemnify each other for the acts of their own employees. Id. at 7.
“In deciding this factor, courts have looked to contractual provisions and the
behavior of the parties to determine whether an understanding existed.” LeBlanc v.
AEP Elmwood, LLC, 946 F. Supp. 2d 546, 551 (E.D. La. 2013) (citing Brown v. Union
Oil Co. of California, 984 F.2d 674, 677 (5th Cir. 1993)). In this case, the Service
Agreement purports to preclude borrowed employee status. However, the reality at
the HPC worksite was different; as outlined above, HPC exercised direct supervision
and control over Kennedy. As a result, this factor weighs against a finding of a
meeting of the minds that Kennedy was a borrowed employee.
4. Did the employee acquiesce in the new work situation?
“The issue to be resolved under this factor is whether [Plaintiff] had an
opportunity to observe the conditions under which he was working and whether, after
such an opportunity, he chose to continue working.” Barrios, 1994 WL 90456 at *2;
Brown, 984 F.2d at 678. Kennedy testified that he did not make any complaints to
HPC regarding his work and never told Elite he did not want to work at HPC. (Rec.
Doc. 32-2, at 5). However, in opposition, Kennedy contends that he had not acquiesced
to working at HPC “other than in a very brief capacity,” because he worked there for
less than two weeks while waiting to perform offshore rigging work for Elite. (Rec.
Doc. 42, at 6). Marmac and Deep South also argue that it is difficult to state that
Kennedy acquiesced to this work based on the limited time (two weeks) that he
worked there before the November 9, 2021 incident.
HPC presented evidence that Kennedy did not take issue with his work
conditions, and Kennedy, Marmac, and Deep South presented no evidence to dispute
that Kennedy acquiesced to his work conditions. Accordingly, this factor weighs in
favor of finding borrowed-servant status, but with little weight, because Kennedy had
limited time and opportunity to experience and object to his work environment.
5. Did the original employer terminate its relationship with the
employee?
Termination, for the purposes of this factor, does not require the lending
employer to completely sever its relationship with the employee. Instead, this factor
depends on “the lending employer’s relationship with the employee while the
borrowing occurs.” Capps, 784 F.2d at 618. “The fact that [the employee] had no
contact with [his lending employer] and was supervised totally by [his lending
employer’s] employees while on the platform is sufficient to meet this factor.” Hotard
v. Devon Energy Prod. Co. L.P., 308 F. App’x. 739, 742 (5th Cir. 2009) (citing
Melancon, 834 F.2d at 1246). Here, although Elite continued to issue paychecks to
Kennedy, he took all of his instructions from HPC employees, there were no Elite
supervisors on the jobsite, he considered HPC employers to be his supervisors, and
he had never been to the Elite office nor met anyone at Elite. In light of these facts,
this factor weighs in favor of finding borrowed-employee status.
6. Who furnished the tools and place for performance?
Here, it is undisputed that HPC provided the place of work and some
equipment used by Kennedy. Kennedy purchased his own boots, and Elite did not
provide any tools and equipment. Therefore, this factor weighs in favor of finding
Kennedy was HPC’s borrowed servant.
7. Was the new employment over a considerable length of time?
The parties agree that Plaintiff worked only a short time with HPC: around
two weeks. Therefore, this factor weighs against finding Kennedy was a borrowed
employee but will be given minimal weight because it is not especially illuminating.
8. Who had the right to discharge the employee?
This factor asks whether HPC had the authority to terminate Kennedy’s
services with HPC itself, even if HPC could not outright terminate Kennedy’s
employment with Elite. See Melancon, 834 F.2d at 1246 (citing Capps, 784 F.2d at
618). Kennedy testified that HPC had the right to fire him if HPC was dissatisfied
with his work. (Rec. Doc. 32-3, at 5-6). Additionally, the Service Agreement states
that HPC has the right to require Elite to replace workers whose performance was
unsatisfactory to HPC. (Rec. Doc. 32-4, at 4). Both the contract between HPC and
Elite and Kennedy’s testimony weigh in favor of finding borrowed servant status.
9. Who had the obligation to pay the employee?
This factor is not in dispute. Elite billed HPC for labor it provided to HPC, and
Elite then paid Kennedy. Because HPC provided the funds to pay Kennedy, this factor
weighs in favor of borrowed servant status.
CONCLUSION
Of the nine borrowed servant factors, a sufficient number of factors clearly
favor summary judgment: six factors weigh in favor of a borrowed servant
relationship, one factor is neutral, and two factors suggest the borrowed servant
relationship did not exist. Of the four factors most significant for a defense in the
LHWCA context, three factors favor a finding of a borrowed servant relationship, and
one factor weighs slightly against such a finding. Therefore, the circumstances of
Kennedy’s employment are such that HPC should be considered an employer and not
a third party under the LHWCA. Thus, HPC was Kennedy’s borrowing employer for
purposes of the LHWCA, and so HPC is entitled to summary judgment. Accordingly,
IT IS HEREBY ORDERED that Defendant HPC’s Motion for Summary
Judgment (Rec. Doc. 32) is GRANTED, and Kennedy’s claims against HPC are
DISMISSED with prejudice.
New Orleans, Louisiana, this 8th day of July, 2024.
CARL J. BA R
UNITED ST S DISTRICT JUDGE
10