# In Re: Texas Petroleum Investment Company

> District Court, E.D. Louisiana · September 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10648474

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10648474

## How later opinions describe it (automated extraction)

- finding that control, provision of tools, and significant length of time on the platform were insufficient to apply the doctrine as a matter of law
- noting that while Kerr-McGee could dismiss West from the platform, it could not fire him from his position with the supplying firm, and ultimately finding that there was too much conflicting evidence to grant summary judgment
- finding that contractual provisions designed to defeat the borrowed employee doctrine affect the third factor
- finding “more than three months” to be a neutral factor

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF THE COMPLAINT * CIVIL ACTION NO. 23-1931
OF TEXAS PETROLEUM *
INVESTMENT COMPANY AS OWNER * SECTION: “A”(3)
OF THE VESSEL LA 5580 FF AND *
VESSEL LA 5910 FN IN A CAUSE FOR * JUDGE JAY C. ZAINEY
EXONERATION FROM OR *
LIMITATION OF LIABILITY * MAGISTRATE JUDGE EVA J. DOSSIER
*
*

ORDER AND REASONS

The following motions are before the Court: Motion for Summary Judgment (Rec.
Doc. 41) filed by Claimant, James Pierre, Jr.; Motion for Summary Judgment (Rec. Doc. 35),
filed by Petitioner, QBE International Markets and Texas Petroleum Investment Company
(“TPIC”); and Motion for Summary Judgment (Rec. Doc. 42), filed by Defendant, Clayton
Wyatt Hall. Petitioner, TPIC, opposes Pierre’s motion (Rec. Doc. 41). Pierre opposes each of
TPIC’s and Hall’s motions (Rec. Docs. 35 and 42). The motions, submitted for consideration on
August 7, 2024, are before the Court on the briefs without oral argument. For the reasons that
follow, all three motions for summary judgment are DENIED.
I. Background
This case arises out of a collision of two vessels, both owned by TPIC, in the inland
waters of Plaquemines Parish, Louisiana, on October 10, 2022. At the time of the accident, Pierre
was an employee of Eagle Services, LLC (“Eagle”), serving as a contract hand for TPIC. (Rec.
Docs. 35-6, 35-7). On the day of the accident, Clayton Hall, a TPIC employee, traveled to Well
No. 23 to conduct maintenance work due to its malfunction. (Deposition of James Pierre, Jr.,
Rec. Doc. 35-5, 29:22-25).1 Because Well No. 23 ran into the same pipeline as Well No. 64, Hall
dispatched Pierre to stop the flow in Well No. 64. (Id. at 43:15-25). Once Pierre cut the flow, he
was to remain there until instructed to reopen the flow. (Id. at 45:7-13). However, Pierre’s phone
battery died and, after waiting fifteen minutes, he boated back to Well No. 23 to wait with Hall.
(Id. at 45:14-46:3). On his way back, Pierre turned into a canal as Hall boated in his direction

and the two boats collided, injuring Pierre. (Id. at 56:7-9).
Following the collision and Pierre’s injuries, Pierre filed suit in state court in
Plaquemines Parish. In response, TPIC filed a Limitation of Liability proceeding in this Court on
June 7, 2023 (Rec. Doc. 1). Pierre filed an answer and a claim in the limitation on September 6,
2023, and amended on March 8, 2024, adding two new parties. (Rec. Doc. 17). All parties have
now separately moved for summary judgment. Pierre has moved for summary judgment on the
basis that TPIC has no right to claim limitation of liability due to the Limitation of Liability
Act’s newest amendments, which, he argues, exclude this accident from the scope of the statute.
TPIC has moved for summary judgment on the issue of the borrowed employee doctrine, which,

if applicable, would cloak TPIC in tort immunity. Hall has, in essence, joined in this motion with
his motion for summary judgment, asserting that co-employees are shielded under the borrowed
employee doctrine. The Court first considers Pierre’s motion because if the statute for limitation
of liability does not apply, all other motions for summary judgment are moot.
II. Legal Standard
Summary judgment is proper where there is “no genuine dispute of material fact” and “the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). That is, it is appropriate
where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with

1 All deposition citations refer to the page numbers of the depositions themselves, not to the page numbers in the
CM/ECF headers.
the affidavits, if any,” when viewed in the light most favorable to the non-movant, “show that there
is no genuine issue as to any material fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759
(5th Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute
about a material fact is “genuine” if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all

justifiable inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255).
Once the moving party has initially shown “that there is an absence of evidence to support the non-
moving party’s cause,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must
come forward with “specific facts” showing a genuine factual issue for trial. Id. (citing Fed. R.
Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts showing a
genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
When faced with a well-supported motion for summary judgment, Rule 56 places the

burden on the non-movant to designate the specific facts in the record that create genuine issues
precluding summary judgment. Jones v. Sheehan, Young, & Culp, P.C., 82 F.3d 1334, 1338 (5th
Cir. 1996). The district court has no duty to survey the entire record in search of evidence to support
a non-movant's position. Id. (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1992); Nissho-
Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)).
III. Discussion
1. Applicability of the Limitation Statute
Pierre’s motion for summary judgment relies on the Limitation of Liability Act’s newest
amendments, asserting that the vessels qualify as covered small passenger vessels and therefore
are excluded from the limitation of liability statute. The statute provides that it “applies to
seagoing vessels and vessels used on lakes or rivers or in inland navigation, including canal
boats.” 46 U.S.C. § 30502(a). However, under the amendments, the chapter does not apply to
“covered small passenger vessels.” Id. (b). A covered small passenger vessel has two definitions,
only one of which applies here.2 This definition states that covered vessel “means a small

passenger vessel, as defined in section 2101, that is (i) not a wing-in ground craft; and (ii)
carrying (I) not more than 49 passengers on an overnight domestic voyage; and (II) not more
than 150 passengers on any voyage that is not an overnight domestic voyage. 46 U.S.C.
§ 30501(1)(A) (cleaned up). Pierre’s motion stops at this point before providing a lengthy
analysis of the retroactive application of the amendments. However, he fails to provide the
definition for small passenger vessels as defined in section 2101.
A small passenger vessel is a wing-in-ground craft carrying at least one passenger for
hire, and a vessel of less than 100 gross tons that is: (1) carrying more than six passengers, with
at least one of those being a passenger for hire; (2) chartered with the crew provided and carrying

more than six passengers; (3) chartered with no crew and carrying more than twelve passengers;
(4) a submersible vessel carrying at least one passenger for hire; or (5) a ferry with more than six
passengers. 46 U.S.C. § 2101(47). While TPIC provides the definition of “passenger” under the
statute, this Court recognizes that the vessels at issue do not qualify under definitions (1), (2),
(3), and (5), because neither vessel in the accident described carried more than one individual,
regardless of whether they are “passengers” under the statute. Additionally, a “submersible
vessel” is one “that is capable of operating below the surface of the water.” 46 U.S.C. §
2101(49). There is no evidence that these boats are designed to operate under the water.

2 The second covers wooden vessels. The vessels at issue are agreed to not have been constructed with wood.
Accordingly, the boats at issue do not qualify as small passenger vessels under any of the
definitions.
Further, to the extent that either vessel is a wing-in-ground craft, the vessels still do not
qualify under the definition, because it requires the vessel to be carrying a passenger for hire. A
passenger for hire is “a passenger for whom consideration is contributed as a condition of

carriage on the vessel.” 46 U.S.C. § 2101(30). Pierre was not a passenger of his own vessel, as he
was the master of the vessel, and the same is the case for Hall. 46 U.S.C. § 2101(29). Further,
“the boats were never used to transport ‘passengers for hire.’” (Affidavit of Tommy LeJeune,
Rec. Doc. 48-1, at 2). Therefore, the exclusion does not cover the boats in this matter.
The boats at issue were an 18’ aluminum skiff and a 24’ work boat. (Rec. Doc. 48-2, at 1-
2). Neither carried more than the boat’s operator. The Court is satisfied that the statutory
exclusion of small passenger vessels, effected by the amendments, does not cover the vessels at
issue in this matter. Therefore, the Court need not conduct an analysis regarding the potential
retroactive nature of the statute’s amendments.

Accordingly, Pierre’s motion for summary judgment is DENIED.
2. Borrowed Employee Doctrine
TPIC and Hall have moved for summary judgment, requesting that the Court find that
they are each shielded from tort liability by the borrowed employee doctrine. If the borrowed
employee doctrine applies, then Pierre would be covered under the Longshoremen and Harbor
Workers’ Compensation Act (“LHWCA”), which entitles the worker to receive worker’s
compensation for injuries sustained on the job. See Melancon v. Amoco Prod. Co., 834 F.2d
1238, 1243 (5th Cir. 1988). Because the LHWCA is the exclusive remedy for an employee, if an
individual is found to be a borrowed employee, then the employer is shielded by tort immunity.
Id. at 1243-44 (citing 33 U.S.C. § 905(a)).
The Fifth Circuit has developed a series of factors used to determine whether an
individual is a borrowed employee:
(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 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?

Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993) (citing Brown v. Union Oil Co. of Cal.,
984 F.2d 674, 676 (5th Cir. 1993)). The Fifth Circuit has uniformly found that “no one of these
factors, or any combination of them, is decisive, and no fixed test is used to determine the existence
of a borrowed-servant relationship.” Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 376 (5th
Cir. 1985) (quoting Ruiz v. Shell Oil Co., 413 F.2d 310, 321 (5th Cir. 1969)). “The factor of control
is perhaps the most universally accepted standard for establishing an employer-employee
relationship,” but the Fifth Circuit has “nevertheless indicated, in different cases, that certain of
these factors may be more important than others, at least in the light of the facts then before the
court.” Id. (quoting Ruiz, 413 F.2d at 321). Finally, while the application of this doctrine is a
question of law, “in some cases, factual disputes must be resolved before the district court can
make its legal determination.”3 Billizon, 993 F.2d at 105.

3 While the Court notes that factual disputes may preclude summary judgment at times, in other cases, a factual dispute
as to one or two of the factors may not necessarily preclude summary judgment. See Billizon, 993 F.2d at 105-06. The
district court must determine whether the factual issues are significant enough to deny summary judgment.
A. Control
The first factor asks which company had control over Pierre and the work he was
performing, “beyond mere suggestion of details or cooperation.” Id. In support of its argument,
TPIC states that Pierre “was exclusively supervised by TPIC personnel working in the
Plaquemines Parish field and TPIC controlled all the details of his work.” (Rec. Doc. 35-2, at 7).

TPIC has provided two affidavits supporting its position. James Hendry’s affidavit states that he,
an operator for TPIC, would “oversee the activities of contract workers, such as James Pierre,”
and that such contract hands typically worked a seven-day hitch in TPIC’s fields. (Rec. Doc. 35-
7, at 1-2). Nick Lichenstein, a controller for Eagle, has also provided a sworn statement that “when
Eagle payroll employees, such as James Pierre, Jr., are assigned to work for TPIC, once they are
on the TPIC premises they are under the exclusive direction and control of TPIC personnel.” (Rec.
Doc. 35-6, at 2). Finally, Pierre’s deposition suggests that he was under the direction of a TPIC
individual during his hitches. Hall, “a foreman” (Deposition of James Pierre, Jr., at 9:19), appeared
to instruct Pierre during these seven-day hitches. (Id. at 39:17-25, 43:12-44:5, 45:7-13 (Hall

“called for us to go in the field,” provided assignments)). Having reviewed this evidence, the Court
is satisfied that TPIC has produced sufficient evidence to shift the burden to Pierre to contest the
evidence provided in TPIC’s favor.
In opposition, Pierre cites portions of the Master Services Agreement (“MSA”) between
Eagle and TPIC at length, including the independent contractor relationship provision and the
requirement that Eagle insure Pierre, and argues that the MSA was never adequately modified.4

4 The MSA specifically states that no change or modification shall be binding unless written and signed by both parties.
(Rec. Doc. 35-6, at 17). Additionally, the contract states that Eagle “shall be deemed to be an independent contractor,
with the authority and right to direct and control all the details of the work with [TPIC] being interested only in the
results obtained.” (Id. at 5). Further, the contract explicitly states that TPIC “shall have no right or authority to
supervise or give instructions to the employees, agents, or representatives” of Eagle. (Id.).
He also contends that Hendry, who provided one of TPIC’s affidavits, did not have personal
experience with or personal knowledge of Pierre’s employment, and that no evidence has been
provided by any individual who directly supervised or controlled Pierre. Finally, he asserts that
TPIC’s Health and Safety Manager at the time of the accident memorialized that an Eagle
employee was Pierre’s supervisor, thus showing that Eagle had control over Pierre.

The Court is unpersuaded by the argument that any provision of the contract directly
impacts the “control” factor. Instead, those provisions apply to the third factor, as discussed later.
Indeed, the Court has seen no case law from the Fifth Circuit suggesting that such provisions defeat
a finding of actual control demonstrated by facts. See Billizon, 993 F.2d at 106 (finding that
contractual provisions designed to defeat the borrowed employee doctrine affect the third factor).
Additionally, the Court has been provided no evidence demonstrating that Eagle continued to
exercise control over Pierre during his time at TPIC. Pierre’s argument that the affidavits were
provided by individuals without personal knowledge of Pierre or his work is not convincing.
Although Hendry did not expressly state that he knew Pierre, he was intimately familiar with the

Romere Pass Field, where Pierre was located, and would oversee the activities of contract workers.
(Rec. Doc. 35-7, at 1). No evidence has been introduced demonstrating that Pierre took orders
from non-TPIC individuals. Indeed, the evidence Pierre provided suggesting that Hall was another
operator (and therefore not his superior) appears incomplete. The provided testimony discusses
when Hall worked for Action Oil Field Services in White Castle, LA, as an operator for TPIC—
seemingly as a contract hand. (See Deposition of Clayton Hall, Rec. Doc. 44-3, at 15:10-19). The
exhibit cuts off directly following the question, “And so did you go directly from working for
Action to Texas Petroleum?” (Id. at 15:23-25). None of Pierre’s argument relates to the testimony
following that question.
Finally, to the extent that Toby Trosclair, an Eagle employee, was referred to as Pierre’s
supervisor, the Court is not convinced that such a designation precludes a finding that Pierre was
controlled by TPIC in this case. First, TPIC’s Health and Safety Manager, Brandon Lege, who
investigated the accident, testified that Pierre had reported the accident “to his supervisor”—
referring to Trosclair of Eagle—and that Pierre had not reported the accident to TPIC because he

feared termination. (Deposition of Brandon Lege, Rec. Doc. 44-8, at 26:21-27:4). The other exhibit
is from Pierre’s deposition, in which he referred to Trosclair as “our superintendent at Eagle,” and
that he reported the incident to Trosclair because he was afraid of Clayton Hall. (See generally
Rec. Doc. 44-9). Under the general concept of the “borrowed employee” doctrine, Eagle may
maintain an organizational structure through which Pierre has supervisors while he is contracted
to work for TPIC. See Melancon, 834 F.2d at 1246 (noting that ceasing control “does not require
a lending employer to sever completely its relationship with the employee, because such a
requirement would effectively eliminate the ‘borrowed employee’ doctrine” (citing Capps v. N.L.
Baroid-NL Indus., 784 F.2d 615, 617-18 (5th Cir. 1986))). Such a connection does not, on its own,

suggest that Trosclair had any hand in controlling Pierre, except to receive this complaint.
In review of the facts, the Court finds that Pierre has not successfully shown that an issue
of fact exists with respect to control. This factor weighs in favor of applying the borrowed
employee doctrine.
B. Whose Work Was Performed?
The parties have agreed that TPIC’s work was being performed. (Rec. Doc. 44, at 6). This
factor weighs in favor applying the borrowed employee doctrine.
C. Agreement or Understanding
The parties heavily dispute the third factor—whether TPIC and Eagle had an agreement,
understanding, or meeting of the minds. TPIC argues that because a contract existed, there was a
meeting of the minds. In opposition, Pierre argues that many of the provisions of the MSA, listed
in his argument for factor one, prevent the application of the doctrine. He also provides several
exhibits in which Pierre is referred to as a contract operator or a contractor with Eagle, and TPIC’s

interrogatory answers in which it stated that Pierre was not an employee of TPIC. In its reply,
TPIC provides a very short argument that the agreement cannot create an issue of fact. This Court
disagrees with TPIC.
Several Fifth Circuit cases have handled similar factual backgrounds, including matters
containing MSAs in which the relationship was defined as an independent contractor relationship.
See, e.g., Alday, 750 F.2d at 377; Billizon, 993 F.2d at 105-06; West v. Kerr-McGee Corp., 765
F.2d 526, 531 (5th Cir. 1985). In each of these cases, the court noted that an issue of fact precluded
summary judgment, or that, at the least, the third factor contained an issue of fact preventing the
court from finding that it weighed in favor of applying the borrowed employee doctrine. See Alday,

750 F.2d at 378-79; Billizon, 993 F.2d at 106; West, 765 F.2d at 531. The Court is satisfied that
the issues presented by the contract, which contains provisions suggesting that Pierre could not be
considered a borrowed employee, create an issue of fact. See Brown, 984 F.2d at 677-78 (noting
that whether the parties had an understanding to modify the contract may be a disputed factual
issue (citing Alday, 750 F.2d at 378)). The Court lacks sufficient facts to indicate whether the
contract was modified or otherwise allows for the application of this doctrine.
This factor weighs in favor of Pierre.
D. Acquiescence
The next factor to be considered is if Pierre acquiesced in the new work situation. “The
focus of this factor is whether the employee was aware of his work conditions and chose to
continue working in them.” Id. at 678. TPIC argues that Pierre clearly acquiesced due to his seven-
day hitches, providing little else in the way of additional argument. Pierre argues that he did not
acquiesce to a borrowed employee relationship, providing as proof that he reported his accident to

Eagle. While it is noteworthy that Pierre brought the issue of the accident to Eagle, this factor
considers whether he was aware of his work conditions. In Brown, the Fifth Circuit focused on the
fact that “Brown worked, slept and ate in Union’s field for a month prior to his accident.” Id. Here,
Pierre’s deposition shows that he worked, slept, and ate in the TPIC field for three months prior to
his accident. (Deposition of James Pierre, Jr., at 16:2-18:14, 39:3-20). The Court is satisfied that
Pierre acquiesced to the working conditions at TPIC.
This factor weighs in favor of applying the borrowed employee doctrine.
E. Termination of Relationship
The parties appear to agree that Eagle did not entirely terminate its relationship with Pierre,

but TPIC argues that “a lending employer need not ‘completely sever’ its ties to the borrowed
employee.” (Rec. Doc. 35-2, at 11 (quoting Melancon, 834 F.2d at 1238)). TPIC instead asserts
that the relationship was in place for Eagle to act as a payroll conduit and assist in placing him
with TPIC, but nothing more. In support, it cites Melancon and Capps. In Melancon, the Fifth
Circuit re-emphasized that this factor focuses “on the lending employer’s relationship with the
employee while the borrowing occurs.” Melancon, 834 F.2d at 1246 (quoting Capps, 784 F.2d at
617-18). Finally, TPIC argues that where daily tasks were provided by the borrowing employer
and the lending employer was unaware of the daily work performance, the relationship is
terminated. (Rec. Doc. 35-2, at 11).
In opposition, Pierre argues that the MSA requires Eagle to maintain a safety program and
safety training for its workers. (Rec. Doc. 35-8, at 3). He also cites various provisions of the TPIC
Manual. The Court, having considered the evidence, finds that Eagle may still have maintained
some employment relationship with Pierre. Not only was Pierre subjected to mandatory safety
programs, but he also reported his injury directly to Eagle, as discussed above. The Court is

hesitant to accept facts pertaining to control, an entirely separate factor in this analysis, as proof
that the relationship between Pierre and Eagle was sufficiently severed.5 Accordingly, the Court
finds that an issue of fact remains as to the status of the relationship between Pierre and Eagle
during his time with TPIC.
Accordingly, this factor weighs in favor of Pierre.
F. Tools and Place for Performance
TPIC argues that Hendry’s affidavit settles the issue of tools, as he states that “the tools the
contract hands, such as Mr. Pierre[,] used to perform their daily activities which included
wrenches, gauges, and other tools were all provided and owned by TPIC.” (Rec. Doc. 35-7, at 2).

Pierre concedes that the place of the performance, housing, and food were also all provided by
TPIC. Instead, he argues (1) that Hendry lacks personal knowledge relating to Pierre6 and (2) that
Eagle was required to provide and maintain all personal protective equipment, materials, and
instrumentalities necessary to perform work safely. (Rec. Doc. 44, at 9 (quoting TPIC Manual)).
First, the Court is not convinced that the provision of PPE creates a factual issue as to this factor.
Second, Pierre has provided no evidence that Eagle did, in fact, provide these tools. This Court
finds that the tools were provided by TPIC.

5 That is, to the extent that TPIC has introduced evidence that Eagle was uncertain of day-to-day activity of Pierre, the
Court believes that such evidence, while relevant, fails to rebut evidence that Eagle remained connected for certain
human resources issues.
6 The Court has already rejected this argument.
Therefore, this factor weighs in favor of applying the borrowed servant doctrine.
G. Length of Time
Pierre worked for TPIC for nearly three months, with his first hitch beginning on July 28,
2022, and his final day being October 10, 2022. Although Pierre argues that he worked forty-two
days (six hitches), the Court has considered this factor by observing the total number of calendar

days working for TPIC, which adds up to two-and-one-half months. Following Billizon, this Court
finds that amount of time “neutral.” Billizon, 993 F.2d at 105-06 (finding “more than three months”
to be a neutral factor).
H. Right to Discharge
TPIC argues that it had the right to discharge Pierre from its fields. The Fifth Circuit has,
in the past, stated that “the right to terminate [the employee’s] services with itself . . . is the proper
focus when considering who has the right to discharge the employee.” Capps, 784 F.2d at 618
(citing Hebron v. Union Oil Co. of Cal., 634 F.2d 245 (5th Cir. 1981) (per curiam)). Interestingly,
the Fifth Circuit has also recognized that such a situation could weigh against a finding of borrowed

employee. West, 765 F.2d at 531 (noting that while Kerr-McGee could dismiss West from the
platform, it could not fire him from his position with the supplying firm, and ultimately finding
that there was too much conflicting evidence to grant summary judgment). The Court believes that
West is an aberration, and notes that Pierre has conceded that this factor weighs in favor of applying
the borrowed employee doctrine. The Court agrees.
This factor weighs in favor of applying the borrowed employee doctrine.
I. Obligation to Pay
The final factor to be considered is who had the obligation to pay the employee. Where an
employee’s time tickets are verified by the “borrowing employer” and ultimately paid by the
“lending employer,” the procedure supports borrowed employee status. Brown, 984 F.2d at 679
(citing Alexander v. Chevron, U.S.A., 806 F.2d 526, 528 (5th Cir. 1986)). Both affidavits provided
by TPIC state that the employees would complete timesheets, which were then approved by TPIC
and submitted to Eagle; Eagle would then invoice TPIC for the amount paid. (Rec. Doc. 35-6, at
2; 35-7, at 3). The Court notes that Pierre provided pay stubs from Eagle. (See Rec. Doc. 44-18).

Additionally, the MSA dictates that TPIC provide payment to Eagle within thirty days of any
invoice. (Rec. Doc. 35-8, at 4). Pierre has suggested that there is no guarantee that TPIC has, in
fact, paid Eagle, nor does it “have to pay Eagle for labor services until thirty days after receipt of
Eagle’s invoice.” (Rec. Doc. 44, at 11). However, Pierre has provided no case law that suggests
that this would distinguish the facts from those considered by the Fifth Circuit in Brown.
Therefore, this factor weighs in favor of applying the borrowed employee doctrine.
Conclusion
The Court, having reviewed the evidence provided, is not convinced that, as a matter of
law, Pierre was a borrowed employee. There has been sufficient evidence provided that creates

issues of fact. Therefore, granting summary judgment would be inappropriate. See West, 765 F.2d
at 531 (finding that control, provision of tools, and significant length of time on the platform were
insufficient to apply the doctrine as a matter of law); Brown, 984 F.2d at 679 (finding that questions
of who gave instructions about how and when to clean the platform and what the understanding
was between the parties with respect to borrowed employee status precluded summary judgment).
Here, the third and fifth factors both have underlying issues of fact, and the seventh factor is
neutral. While Billizon found that summary judgment was appropriate where all factors but the
third (issue of fact) and the seventh (neutral) were in favor of finding borrowed employee, the Fifth
Circuit stated that the remaining factors “clearly point[ed] to borrowed-employee status.” Billizon,
993 F.2d at 106. The Court is unwilling to make such a finding. Of course, in making this
determination, the Court expresses no opinion concerning the ultimate resolution of this issue at
trial.
Therefore, TPIC’s motion for summary judgment is DENIED.
3. Hall’s Motion
Hall’s motion for summary judgment relies on the disposition of TPIC’s motion in favor
of designating Pierre a borrowed employee. Having found issues of fact in the evidentiary record,
the Court denied TPIC’s motion, thus rendering Hall’s motion moot. Accordingly, Hall’s motion
for summary judgment is DENIED.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 41), filed by
Claimant, James Pierre, Jr., is DENIED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc.
35), filed by Defendant, Texas Petroleum Investment Company, is DENIED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc.
42), filed by Defendant, Clayton Hall, is DENIED.
September 5, 2024 C C (
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(FZ Lf Y Th
GNITED STATES DISTRICT JUDGE

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10648474. Public record. Not legal advice.