The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
JOSEPH SYLVESTER, ET AL CIVIL ACTION NO. 22-5192
VERSUS JUDGE S. MAURICE HICKS, JR.
TALOS ENERGY OFFSHORE, LLC, MAGISTRATE JUDGE WHITEHURST
ET AL
MEMORANDUM RULING
Before the Court are two Motions for Summary Judgment filed by defendants
Wood Group PSN, Inc. (“Wood Group”) and Talos Energy Offshore, LLC, Talos Energy,
LLC, and Talos ERT, LLC, (“Talos”) (collectively, “Defendants”). See Record Documents
53 & 55. Wood Group moves for summary judgment stating that Joseph Sylvester
(“Sylvester”) and Melinda Sylvester (collectively, “Plaintiffs”) are legally precluded by the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”) from asserting a vicarious
liability claim. Talos asserts the same. Plaintiffs filed oppositions. See Record Documents
76 & 78. Wood Group and Talos replied. See Record Documents 79 & 82. After careful
consideration of the parties’ submissions, and the law applicable before the Court,
Defendants’ Motions for Summary Judgment are DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
This is a maritime negligence case that arises out of an accident involving
Sylvester that allegedly occurred on September 23,2021. In 2021, Talos was the operator
of the South Marsh Island 130 ("SMI 130") field, located in the Gulf of Mexico on the Outer
Continental Shelf. See Record Document 53-3 (Declaration of Lonnie Smith) at 1. Talos'
SMI 130 field consists of several oil and gas production platforms. See id. Wood Group
furnished production operators to work in Tales' SMI 130 field pursuant to a Master
Service Agreement ("MSA") between Wood Group and Talos dated June 25,2013. See
Record Document 53-8 (Declaration of Patricia Rodriguez) at 2. The SMI 130 field was
regularly staffed by a combination of direct Talos employees along with contract
production operators, including contract production operators who were payroll
employees of Wood Group. See Record Document 55-3 (Declaration of Lonnie Richard)
at 5.
Sylvester was employed as a crane mechanic by Gulf Crane Services, Inc.
("GCS"). See Record Document 1 at 3; Record Document 55-4 (Declaration of Shane
Theunissen) at 2. Between April 2021 and October 2021, Sylvester was assigned to work
for Talos on Talos's offshore production platforms in SM1130 field. See Record Document
55-5 (Deposition of Joseph Sylvester) at 7. On the date of the accident, Sylvester claims
that he sustained personal injuries at approximately 9:30 a.m. while being transferred in
a personnel basket from the M/V MISS PEGGY ANN ("the vessel") to Tabs' SMI 130
platform. See Record Document 1 at 2-6. He claims that when the crane operator, Brian
Spears ("Spears"), lifted him in the basket, the basket swung rapidly causing it and
Sylvester to "slam violently" into a Connex box that was on the deck of the vessel. Id.
Sylvester contends that the negligent operation of the SMI 130 platform crane by
Spears caused or contributed to his injuries. See Record Document 1 at 11. Spears was
a payroll employee of Wood Group and served as the crane operator on the SMI 130
platform during the day shift on the day of the incident. See Record Document 53-5
(Declaration of Bryan Spears) at 3. Three other Wood Group contract production
operators were also present that day. See Record Document 55-3 at 6.
Sylvester filed the instant suit on September 6, 2022, claiming vessel negligence
and platform/crane negligence. See Record Document 1. Wood Group filed its Motion for
Summary Judgment on December 21, 2023 (Record Document 53), and Talos filed its
Motion for Summary Judgment the next day (Record Document 55).
SUMMARY JUDGMENT STANDARD
Rule 56(a) provides, in pertinent part:
Motion for Summary Judgment or Partial Summary Judgment.
A party may move for summary judgment, identifying each
claim or defense–or the part of each claim or defense–on
which summary judgment is sought. The court shall grant
summary judgment 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.
F.R.C.P. 56(a) (emphasis added); see also Quality Infusion Care, Inc. v. Health Care
Serv. Corp., 628 F.3d 725, 728 (5th Cir. 2010). “A genuine issue of material fact exists
when the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Quality Infusion Care, Inc., 628 F.3d at 728. “Rule 56[(a)] mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the burden of proof at trial.” Patrick
v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004).
If the movant demonstrates the absence of a genuine dispute of material fact, “the
nonmovant must go beyond the pleadings and designate specific facts showing that there
is a genuine issue for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir.
2004). Where critical evidence is so weak or tenuous on an essential fact that it could not
support a judgment in favor of the nonmovant, then summary judgment should be
granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005).
ANALYSIS
Under the LHWCA, as adopted in the Outer Continental Shelf Lands Act
(“OCSLA”) 43 U.S.C. § 1331 et seq., employees are prevented from bringing tort actions
against their employers and their recovery is limited to certain statutorily prescribed
compensation benefits. See Melancon v. Amoco Production, 834 F.2d 1238, 1243-1244
(5th Cir. 1988). 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. Id.
Section 933(i) of the LHWCA provides 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.” 33 U.S.C.
§ 933(i). “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.”
Perron v. Bell Maint. & Fabricators, Inc., 970 F.2d 1409, 1411 (5th Cir. 1992) (internal
citation omitted). Therefore, if Spears and Sylvester are both found to be borrowed
employees of Talos, Talos and Wood Group cannot be held vicariously liable for Spears'
negligent actions because Sylvester is not entitled to recover for the negligence of a
person “in the same employ.”1
1 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
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. See 413 F.2d 310 (5th Cir. 1969). 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?
(8) Who had the right to discharge the employee?
(9) Who had the obligation to pay the employee?
See id. 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. See, e.g., Melancon, 834 F.2d at 1245. 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.
See id. at 1244-45.
I. Dual Employer Doctrine
Plaintiffs assert that Wood Group’s burden is much higher than Talos’, as Talos
need only prove that Sylvester is a borrowed employee while Wood Group must prove
that both Spears and Sylvester were co-borrowed employees. See Record Document 78
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.”).
at 7. Plaintiffs argue that borrowed-servant theory claims against third-party tortfeasors
like Wood Group and Talos and potential defenses to them are governed by Louisiana
state law. They assert that the Louisiana Supreme Court’s holding in Morgan v. ABC
Manufacturer is controlling, where the Court held that both the lending and borrowing
employers could be liable to an injured third party for the torts of the borrowed employee.
See 710 So. 2d 1077, 1082 (La. 1998). Thus, Plaintiffs state that if even if Spears is a
borrowed employee of Talos, which they dispute, Wood Group remains vicariously
solidarily liable for his torts and Wood Group’s motion should be denied without further
consideration of Spears’ borrowed employee status. See Record Document 78 at 9.
Wood Group argues that under OCSLA, state law applies only when not
inconsistent with federal law, and that none of the precedent to which Plaintiffs cite
suggest that state law applies in this case. See Record Document 82 at 2-3.
The Court finds that Wood Group has provided no basis that Morgan should not
apply to this case through OCSLA. See Washington v. Fieldwood Energy, LLC, No. 15-
6615, 2018 WL 263230 at *5 (E.D. La. Jan. 2, 2018) (Finding that “Wood Group has failed
to convince this Court that the rule of Morgan should not apply to this case through
OCSLA. Morgan holds that a lending employer is still liable for to an injured third party for
the torts of the borrowed employee. Accordingly, Wood Group may still be vicariously
liable for the negligence of it nominal employee, Roberts.”) The Court will now move into
consideration of the Ruiz factors.
a. Sylvester
i. Who has control?
Talos argues that it is undisputed that all of the work instructions, orders, and
assignments of Sylvester came from Talos’ production personnel, not GCS, thus
satisfying the first Ruiz factor. See Record Document 55-2 at 21. Wood Group asserts
the same, stating that no one from GCS supervised, controlled, or directed Sylvester’s
work and that both companies, GCS and Talos, understood and expected Sylvester to
follow Talos’ orders. See Record Document 53-2 at 20. Plaintiffs state that Talos did not
control the general work performed by GCS and Sylvester, and Talos did not control the
basket transfer lift related work the injured Sylvester. See Record Document 78 at 24.
Applying the first factor, it appears that both GCS and Talos had some level of
control over Sylvester. Sylvester’s deposition testimony indicates that he received
instructions and daily orders from Talos personnel. See Record Document 53-7. On the
other hand, Shane Theunissen (“Theunissen”), the GCS account manager for the Talos
account at the time of Sylvester’s injury, testified that he was Sylvester’s supervisor and
that Sylvester would report to him daily as required by GCS as a company. See Record
Document 55-4 at 11-15.
Further, the MSA stated: “Contractor [GCS] conclusively shall be deemed an
independent contractor, with the authority and right to direct and control all of the details
of the Work, Company [Talos] being interested only in the result obtained, but all Work
contemplated shall meet the approval of Company [Talos] and shall be subject to
Company’s [Talos’] general right of inspection; (b) the employees, agents, and
representatives of Contractor [GCS] at all times shall be under the direct and sole
supervision and control of Contractor [GCS] and (c) no relationship of master and servant
or of principal and agent shall exist between Company [Talos] on the one hand and
Contractor [GCS] or any employee, agent or representative of Contractor [GCS] on the
other hand.” See Record Document 76-1.
The contractual language explicitly states that GCS's employees are not subject
to the control or direction of Talos, which directly conflicts with certain deposition
testimony. Further, the contract contains language stating that “[n]o amendment, change,
modification . . . shall be binding on any Party unless made in writing, signed by the
Parties, and specifically referencing this agreement.” Record Document 76-1. “Whether
the parties had an understanding that modified the contract may raise disputed factual
issues.” Brown v. Union Oil Co. of California, 984 F.2d 674, 678 (5th Cir.
1993) (citing Melancon, 834 F.2d at 1245 n.13). 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. See id. at 679. 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 Sylvester was a borrowed employee.
ii. Whose work is being performed?
Talos asserts that it is undisputed that Sylvester performed Talos’ work, as he
tested, serviced, maintained, and repaired cranes on Talos’ platforms and his work
assisted in the production of oil and natural gas from wells associated with Talos’
platforms in the SMI field. See Record Document 55-2 at 21. Wood Group states that the
work Sylvester performed in the SMI 130 field was in support of Talos’ oil and gas
production operations. See Record Document 53-2 at 21. Plaintiffs argue that Talos is in
the business of drilling for, producing, and extracting natural resources from the Gulf of
Mexico, not providing maintenance for cranes. Sylvester's work was an “essential,
although only incidental” aspect of Talos’ work. Melancon, 834 F.2d at 1245. Thus, this
factor weighs in favor of a finding of borrowed servant status.
iii. Was there an agreement, understanding, or meeting of the minds
between the original and the borrowing employer?
Talos asserts that although Section 5 of the MSA provides that GCS’s payroll
employees are independent contractors, neither contract prohibits Talos from becoming
the borrowing employer of Sylvester. See Record Document 55-2 at 22. It states that the
Fifth Circuit has held the terms of the contract between the borrowing employer and
payroll employer do not ordinarily provide a sufficient basis to deny summary judgment
when the remaining Ruiz factors point toward borrowed servant status. See id. (citing
Alexander v. Chevron, U.S.A., 806 F.2d 526, 529 (5th Cir. 1986)). Wood Group provides
similar argument, stating that without question there was a “meeting of the minds”
between GCS and Talos concerning control over Sylvester’s work in the field, despite the
language in its agreement regarding Sylvester being an independent contractor. Record
Document 53-2 at 21-22.
As stated above, the MSA between GCS and Talos 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, the MSA 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. See Stauffer Chemical Co. v. W.D.
Brunson, 380 F.2d 174, 182 (5th Cir. 1967).
iv. Did the employee acquiesce in the new work situation?
During the roughly six months that Sylvester worked at SMI 130, it appears that he
had no complaints regarding his working conditions, therefore it seems that Sylvester
acquiesced to his working arrangement. Thus, this factor weighs in favor of a finding of
borrowed servant status.
v. Did the original employer terminate its relationship with the
employee?
The Court does not find that GCS terminated its relationship with Sylvester. 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.”
Mays v. Dir., Off. of Workers’ Comp. Programs, 938 F.3d 637, 645 (5th Cir. 2019).
Deposition testimony shows that Sylvester was required to make some form of contact
with GCS daily. Further, GCS remained in control of Sylvester’s employee benefits. Thus,
this factor weighs against a finding of borrowed servant status.
vi. Who furnished tools and place for performance?
Sylvester stated that he furnished some of his own tools required for work, some
of his tools were provided by GCS, Talos provided the “larger tools sometimes needed
by Sylvester to work on the cranes,” and Talos provided the place of performance and
transportation to and from the place of performance. The Court finds that this factor is
neutral.
vii. Was the new employment for a considerable length of time?
Wood Group states that because both GCS and Talos considered Sylvester’s
assignment to be permanent, this factor supports Sylvester’s borrowed servant status.
See Record Document 53-2 at 24. Talos asserts that the six months before his alleged
accident was enough to support his status as a borrowed employee. See Record
Document 55-2 at 26. Plaintiffs argue that it is debatable whether Sylvester worked on
the platform for a “considerable” amount of time. Record Document 76 at 37. The Fifth
Circuit has noted that when “the length of employment is considerable, this factor
supports a finding that the employee is a borrowed employee,” but that “the converse is
not true.” Capps, 784 F.2d at 618. In Capps, the plaintiff's injury occurred on his first day
of work, and the Fifth Circuit found that this factor was neutral. In Theophile v. Trinity
Industries, Inc., the plaintiff was injured after two weeks on the job but the court found
that testimony indicating an expectation of continued employment weighed in favor of
borrowed employee status. 977 F.Supp. 782 (E.D. La. 1997). However, courts have
debated what constitutes a “considerable” length of time. In Brown, the Fifth Circuit found
an employment duration of one month to be neutral. See Brown, 984 F.2d at 674. The
Court finds that, in light of previous holdings, this factor is neutral.
viii. Who had the right to discharge the employee?
The eighth Ruiz factor asks who had the right to discharge the employee. “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. 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)). 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. See
Mosley, 760 F. App'x at 362. Talos had the right to remove Sylvester from his position on
its platform. Thus, this factor weighs in favor of a finding of borrowed servant status.
ix. Who had the obligation to pay the employee?
Wood Group argues that the amount of Sylvester’s paycheck from GCS was based
purely on the number of hours approved by Talos. See Record Document 53-2 at 25.
Talos argues the same in that it “effectively” had the obligation to pay Sylvester. Record
Document 55-2 at 27. Plaintiffs state that GCS had the obligation to pay and did pay
Sylvester’s paycheck, and it deducted federal and state taxes, and provided all his
employee benefits. Record Document 76 at 39. Based on these assertions, the Court
finds that this factor weighs against a borrowed employee status.
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. The remaining factors do not “overwhelmingly” show that Sylvester was
a borrowed employee. Given the disputes of fact regarding the most critical factor–control
the parties exercised–the Court denies summary judgment. Because the Court finds that
there are facts in dispute precluding summary judgment on the issue of whether Sylvester
was a borrowed employee of Talos, the Court need not reach the issue of whether Spears
was a borrowed employee of Talos.
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 factfinder
at trial, and then the Court will determine Sylvester and Spears’ borrowed employee
status as a matter of law. Accordingly,
IT IS ORDERED that the Motions for Summary Judgment (Record Documents 53
& 55) are DENIED.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this the 3rd day of
September, 2024.
S 112.
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