The opinion
Judgment rendered January 11, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 54,623-CW
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
ANTHONY HERNANDEZ and Respondents
REBECCA EADES, individually
and on behalf of decedent,
CAMRON HERNANDEZ, and
COLTON HAWKINS
versus
AETHON ENERGY Applicant
OPERATING, LLC
*****
On Application for Writs from the
Forty-Second Judicial District Court for the
Parish of DeSoto, Louisiana
Trial Court No. 79,386
Honorable Amy Burford McCartney, Judge
*****
MAYER SMITH & ROBERTS, LLP Counsel for Applicants,
By: Caldwell Roberts, Jr. Aethon Field Services,
LLC and Aethon Energy
Operating, LLC
GIEGER LABORDE & LAPEROUSE, LLC Counsel for Applicant,
By: Attie Babin Carville Federal Insurance
Robert Irwin Siegel Company
PETTIETTE ARMAND DUNKELMAN Counsel for Respondent,
By: Donald James Armand, Jr. G&D Well Services, Inc.
LEWIS BRISBOIS Counsel for Respondent,
By: Sarah Russell Smith Axis Surplus Insurance
Company
DEGAN, BLANCHARD & NASH APLC Counsel for Respondents,
By: Mandy Ann Simon USFS and Nautilus
Sydney Wallis Degan, III Insurance Company
GREGORIO, CHAFIN, JOHNSON, Counsel for Respondents,
TABOR & FENASCI, LLC Anthony Hernandez,
By: Scott J. Chafin, Jr. Rebecca Eades, Camron
Julie Payne Johnson Hernandez, and Colton
Hawkins
ETHAN ARBUCKLE Counsel for Respondents,
Anthony Hernandez,
Rebecca Eades, Camron
Hernandez, and Colton
Hawkins
RHYS BURGESS Counsel for Respondents,
Anthony Hernandez,
Rebecca Eades, Camron
Hernandez, and Colton
Hawkins
*****
Before PITMAN, COX, and ROBINSON, JJ.
ROBINSON, J.
Anthony Hernandez and Rebecca Eades, on behalf of their son
Camron Hernandez (“Hernandez”), along with Colton Hawkins
(“Hawkins”), (collectively “Plaintiffs”), initially filed suit on April 16, 2018,
against Aethon Energy Services, L.L.C. (“Energy”), the operator of record
for a certain gas well in DeSoto Parish (“DeSoto well”), for the wrongful
death of Hernandez and personal injury of Hawkins arising from an accident
on April 18, 2017, at the DeSoto well when a steel hydrocarbon storage tank
ignited and exploded while being dismantled by employees of United States
Field Services, LLC (“USFS”). An amended petition was filed on May 2,
2019, to add Aethon Field Services, L.L.C. (“Field”) as a defendant, a
second amended petition was filed on December 23, 2019, to add G&D Well
Service (“G&D”) as a defendant, and a third amended petition was filed on
May 13, 2020, to add Federal Insurance Company (“Federal”), the liability
policy insuring Field, Axis Surplus Insurance Company (“Axis”), the excess
liability policy insuring Field, and Travelers Indemnity Company
(“Travelers”), the liability policy insuring G&D, as defendants.
Energy filed a motion for summary judgment on January 13, 2019,
and a hearing was held on March 26, 2019. Plaintiffs requested leave on
oral motion during the hearing to amend their petition to add Field as a
defendant. Summary judgment was granted by the trial court, finding that
Energy had no duty to Plaintiffs per the contract with USFS, and that Energy
qualified as a statutory employer of the USFS employees on the job pursuant
to La. R.S. 23:1061A(2), including Hernandez and Hawkins, whereby
Energy was granted the exclusive remedy protections of La. R.S. 23:1032
and liable to pay any compensation under the applicable workers’
compensation provisions. The trial court limited its ruling to Energy,
granting Plaintiffs’ request to add Field as a defendant.
Field filed an initial motion for summary judgment on November 20,
2019, and an amended motion on November 16, 2021. A hearing was held
on February 2, 2022, in which the trial court denied Field’s motions, finding
genuine issues of material fact as to Plaintiffs’ claims in general. Field
sought and was granted supervisory review.
For the following reasons, the ruling of the trial court is AFFIRMED.
FACTS AND PROCEDURAL HISTORY
Business Structure
On April 16, 2015, Energy created the subsidiary, Field, a limited
liability company, of which Energy is the sole member. Preston Phillips,
vice president of Aethon United, the current owner of the DeSoto well,
Energy, and Field, stated in an affidavit that Field’s sole purpose as a
subsidiary of Energy is to serve as a separate legal entity to provide wages,
salaries, and fringe benefits to individuals whose job duties consist solely of
providing work and services for Energy’s oil and gas business. Numerous
employment contracts are entered into by and between Field as the employer
and its employees, and payroll checks and W-2 forms are issued in Field’s
name. Field employs both labor and supervisory level employees.
However, Field does not own any tools or equipment, and the account used
for payroll processing is owned by Energy.
On June 20, 2015, Energy executed a “Contract Operating
Agreement” with the then well owner that named Energy as the designated
operator of record for the DeSoto well and site, to be listed as such with all
regulatory agencies, and that specified that all contracts regarding the
2
operations of the well and the site would be executed by Energy, including
those executed with third-party subcontractors. Since July 1, 2015, Energy
has been listed with the Louisiana Department of Conservation as the
registered operator of the DeSoto well and all equipment at the site. The
permit to drill for minerals dated September 30, 2015, granted by the State
of Louisiana Office of Conservation, lists Energy as the operator.
On July 15, 2016, the well owner company merged with several other
companies to become Aethon United, and the ownership of the DeSoto well
is maintained in the name of Aethon United, including the rights and
obligations under the Energy operating agreement.
Dismantlement Contractual Arrangements
On April 3, 2017, the steel hydrocarbon storage tank at the DeSoto
well was struck by lightning, which caused the contents to ignite, resulting
in extensive damage to the tank. Energy opted to subcontract the
dismantlement to other companies experienced in working with dangerous
chemicals and equipment since the tank had contained hydrocarbons.
On April 4, 2017, Barry Stem, co-owner and general manager of
USFS, an environmental decontamination company, sent a “Proposal” to
“Aethon Energy” addressed to Thad Lowe (“Lowe”), an employee of Field,
for USFS to “remove, decontaminate, transport, and dispose of a steel tank,
a fiberglass tank, and catwalks” for the quoted amount of $6,026. The USFS
Proposal required that Energy provide unimpeded access to the location,
remove “all free liquids” from the tank prior to USFS arriving on site, and
remove the tanks and debris from the containment area.
3
On April 10, 2017, a “Master Service Agreement” was executed by
and between Energy “and its affiliates” as the “Company” and USFS as the
“Contractor” which stated, in pertinent part, that:
Relationship of Parties:
All Contractor Services shall be performed by Contractor as an
independent contractor and under the sole supervision,
management, and control of Contractor in accordance with the
specifications provided to Contractor by Company. Company
shall look to Contractor for results only and shall have no right
at any time to direct or supervise Contractor or its servants or
employees in the performance of such work or as to the manner,
means, and method in which work or labor is performed. The
detailed manner and method of performing the Contractor
Services shall be under the control of Contractor.
Standard of Performance:
Contractor shall perform all Contractor Services in good faith, in
a good and workmanlike manner, with due diligence and
dispatch. In accordance with good practice in the oilfield service
industry, and in compliance with all applicable laws, rules,
regulations, and orders of any governmental authority having
jurisdiction.
Energy contracted with Key Energy Services, Inc. to drain the free
liquids from the tank, and G&D to move the damaged tank from its
containment area to an area that would allow for the tank to be dismantled,
all of which was completed prior to April 18, 2017.
Accident and Reporting
On April 18, 2017, USFS co-owner Drake Williams, and USFS
employees, including Hernandez and Hawkins, arrived at the DeSoto well to
dismantle the tank. Williams tested the tank with a “sniffer” for remaining
hydrocarbons and got a negative reading. The USFS employees then rolled
the 15-foot tall tank to a grassy area. Hernandez and Hawkins were standing
near the top of the tank, where it rested on its side. Another USFS employee
began the dismantlement by using a hot cutting torch near the bottom of the
4
tank. A flash fire ignited soon thereafter and the resulting explosion blew
the lid off the tank. Hernandez was struck by the tank lid and later died of
his injuries. Hawkins suffered severe burns.
A “Hazardous Materials Incident Report” was completed by the
Louisiana State Police on April 18, 2017, in which numerous references
were made to “Aethon Energy” as the operator of the well. On April 20,
2017, USFS produced an accident investigation report detailing the events
before and after the explosion, which noted that USFS contacted Lowe “with
Aethon Energy” to inform him that an accident had occurred. On April 25,
2017, Michael Garner (“Garner”), “HSE Advisor for Aethon Energy
Operating, L.L.C.,” wrote a letter, on letterhead from “Aethon Energy,”
detailing the events that occurred that day when he was advised about the
accident by “Aethon Energy employee Mike Murray.” Garner then called
his supervisor, Stephanie Scruggs, to report the incident, pursuant to Aethon
Emergency Procedures. Garner also met with the inspector from the U.S.
Occupational Safety and Health Administration (“OSHA”) several times
and, as requested, provided a copy of the invoice showing that “Aethon
Energy” had the tank emptied and a copy of the Master Service Agreement
between “Aethon Energy” and USFS. Following its investigation, OSHA
penalized USFS for violations. Garner, Murray, and Scruggs are also
employed by Field despite any references to their representative capacities
with Energy.
Plaintiffs’ Suit
Plaintiffs filed an original petition, as well as first, second, and third
supplemental and amending petitions, in which they ultimately sued Energy,
Field, G&D, Federal, Axis, and Travelers. Plaintiffs alleged that Energy and
5
Field were both directly and vicariously liable in negligence for injuries
suffered by Hernandez and Hawkins from the tank explosion.
Specifically, Plaintiffs alleged that Energy, Field, and G&D shared
supervisory and safety responsibility for the work performed in relation to
the dismantlement project at the DeSoto well. Plaintiffs asserted that
because these defendants knew the tank previously contained combustible or
flammable hydrocarbons, they were responsible for ensuring that the tank
was properly inspected, cleaned, vented, and safe for dismantling with a hot
cutting tool; assessing potential hazards; and applying safety procedures to
prevent explosions and fires. Plaintiffs maintained that USFS was not hired
to clean the tank prior to dismantlement, and that USFS employees were told
that the tank had already been cleaned.
Energy’s Motion for Summary Judgment
After answering the suit, Energy moved for summary judgment,
asserting that it did not breach any duty that caused Hernandez’s and
Hawkins’ injuries, and that any relief Energy owed to the Plaintiffs was
restricted to workers’ compensation because Energy had immunity from tort
claims as a statutory employer.
In support of its claims, Energy referred to the April 4, 2017, USFS
Proposal. Energy noted that it completed the tasks assigned to it in the
Proposal, including specifically the removal of “free liquids” by draining the
tank, and that there was no requirement that Energy clean the tank so
thoroughly as to remove all traces of hydrocarbon. Energy also noted that,
pursuant to the Master Service Agreement between Energy and USFS, USFS
would perform all services as an independent contractor without Energy
having any supervisory authority or obligations. Additionally, Energy
6
asserted the affirmative defense that, given its contractual relationship to
USFS under the Master Service Agreement, it qualified as a statutory
employer of USFS employees under La. R.S. 23:1061; and as a statutory
employer, Energy and its employees had immunity from tort liability as to
the Plaintiffs’ claims, pursuant to La. R.S. 23:1032.
At the March 26, 2019, motion hearing, the Plaintiffs moved to amend
their petition to add Field as a defendant. Energy objected to the amended
petition, arguing that Field was only a “payroll company” for Energy. The
trial court noted its observation that Plaintiffs’ proposed amended petition
alleged that only “Aethon Energy” was the operator of the well, and that
Energy admitted in open court that it was the well operator. Nevertheless,
the trial court allowed the Plaintiffs’ amendment to include Field, stating:
While judicial efficiency would suggest that the amendment should be
allowed and this subsequent ruling on the defendant’s Motion for
Summary Judgment apply to both defendants, as there does not appear
to be any basis for liability for Aethon Field Services independent of
Aethon Energy Operating, the more prudent course of action would be
to limit this ruling to Aethon Energy Operating, LLC. Accordingly,
plaintiffs are granted leave to amend their petition, but this ruling is
limited to Aethon Energy, LLC.
The trial court ultimately granted Energy’s motion for summary
judgment and dismissed Energy from the suit with prejudice, detailing its
finding it in its written reasons filed May 29, 2019.
The trial court found that removal of the damaged storage tank was a
task contemplated by the operating contract between Energy, as operator of
record, and Aethon United, as well owner, because Energy was responsible
for all field-related operations as well as compliance with all health, safety,
and environmental regulations. It determined that removal of the tank was
7
clearly Energy’s responsibility, which it transferred by contracting with
USFS for the tank’s removal.
Further, the trial court held that the contract between Energy and
USFS clearly provides that “Aethon would remove the free liquids only
before turning over the dismantling operation to USFS” and “Aethon Energy
Operating had no authority to control the means and methods of USFS’s
work, or supervise its employees.” The court found that “the claimed duty
which plaintiffs argue should be imposed upon Aethon Energy Operating to
properly clean the tank and have a safety meeting is in contravention of the
rights and obligations as between Aethon Energy Operating and USFS.”
Impliedly, the court determined that the phrase “removal of free liquids” did
not equate to any thorough cleaning of the tank.
The trial court further ruled that under La. R.S. 23:1061A(2), Energy
qualified as a statutory employer for the USFS employees working on the
dismantlement project; therefore, Energy is granted the exclusive remedy
protections of La. R.S. 23:1032 and liable to pay any compensation under
the workers’ compensation provisions.
Plaintiffs did not seek an appeal or supervisory review of the
summary judgment; however, the judgment was never certified as final by
the trial court.
Field’s Motion for Summary Judgment
In their first supplemental and amended petition, Plaintiffs raised the
same claims of direct and vicarious liability against Field, who also moved
for summary judgment. Field asserted that it was only a “payroll company,”
whose sole purpose was to provide salaries, wages, and benefits for
employees who performed work solely for Energy. Field further argued that
8
it was not directly liable because it was not the operator for the DeSoto well,
it did not contract with USFS, Key Energy, or G&D regarding the
dismantlement project, and it performed no activities regarding the well
other than handling the hiring, payroll, and benefits of the individuals who
performed the well operations for Energy.
Field argued that it was not vicariously liable because all Field
employees were also “borrowed employees” of Energy, and thus were
“cloaked with the co-employee tort immunity” that all Energy employees
enjoy as to the Plaintiffs’ claims, per the trial court’s ruling that Energy is a
statutory employer of the USFS employees.
In an amended motion for summary judgment, Field asserted an
alternative defense that if the trial court concluded that Field was an operator
for the well site, as alleged by Plaintiffs, then Field would qualify as a
statutory employer with immunity to Plaintiffs’ tort claims, and Plaintiffs’
relief would be restricted to workers’ compensation.
A hearing on Field’s motion and amended motion were held on
February 2, 2022. At the conclusion of the hearing, without any additional
reasons, the trial court held:
Based on what has been presented to the Court, both through the
briefing and the argument today, the Court is inclined to deny the
motion for summary judgment, believing that there are genuine
issues of material fact, and as those have been articulated by the
plaintiffs.
On February 8, 2022, the trial court signed the written judgment
denying Field’s motions for summary judgment. Field sought supervisory
review of that ruling. On May 19, 2022, this Court granted the application
for supervisory writs filed by Field.
9
DISCUSSION
The trial court denied Field’s motion for summary judgment, finding
genuine issues of material fact “as those have been articulated by the
plaintiffs” “to the Court, both through the briefing and the argument.” This
Court looks specifically to Plaintiffs’ oppositions to Field’s motion and
amended motion for summary judgment and the summary judgment hearing
transcript in order to ascertain Plaintiffs’ assertions of genuine issues of
material fact relied upon by the trial court in its denial of Field’s motion.
Borrowed Employee Status/Vicarious Liability
Field argues that the trial court erred in denying its motion for
summary judgment because there were no genuine issues of material fact as
to whether the Field employees were considered “borrowed employees” of
Energy, such that Field and its employees would be vicariously entitled to
share in the tort immunity afforded to Energy as a statutory employer of the
USFS employees working on the dismantlement project.
Field claims that as borrowed employees of Energy, it has no
vicarious liability under La. R.S. 23:1031 and La. R.S. 23:1032. La. R.S.
23:1032 provides in part:
This exclusive remedy is exclusive of all claims, including any
claims that might arise against his employer, or any principle or
any officer, director, stockholder, partner or employee of any
such employer or principal under any dual capacity theory of
doctrine.
Due to Energy’s qualification as the statutory employer of the USFS
employees, Energy and its employees are immune from tort liability as to the
USFS employees’ claims. Therefore, any borrowed employees of Energy
would receive the same immunity as Energy and its own employees from
tort liability, particularly as to the USFS’s employees’ claims.
10
Field further claims that, as employees of Energy, either directly or as
borrowed servants, Field employees are also entitled to co-employee tort
immunity from any claims by the statutory employees of Energy, the
Plaintiffs. In support of its argument, Field cites Stovall v. Shell Oil Co.,
577 So. 2d 732 (La. App. 1 Cir 1991), writ denied, 582 So. 2d 1309 (La.
1991), in which the First Circuit held that a borrowed servant of a statutory
employer has co-employee tort immunity to the statutory employee.
Both Field and the Plaintiffs refer to the holding in Rogers v.
Louisiana Department of Corrections, 43,000 (La. App. 2 Cir. 4/30/08), 982
So. 2d 252, writ denied, 08-1178 (La. 9/19/08), 992 So. 2d 931, regarding
whether the Field employees are considered the borrowed employees of
Energy. In Rogers, this Court found as follows:
In order to determine whether a worker is the borrowed employee
of another, the necessary questions to be asked 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 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?
The parties each argue the borrowed servant determining factors at length in
support of their respective positions.
While no single factor is determinative, the control element is
considered to be the most important. LeCroy v. Interim Health Care Staffing
of North Louisiana, Inc., 43-080 (La. App. 2 Cir. 4/2/08), 980 So. 2d 838.
The control factor addresses who directly supervises the employee while the
11
work is being performed. Garrett v. Adcock Construction Co., 13-0104 (La.
App. 4 Cir. 8/14/13), 122 So. 3d 1134.
In summary, Field urges that Energy, as the contractual operator of
record, has the exclusive control of all activities by Field personnel at the
DeSoto well. Energy officers develop plans and strategies for each well site
facility, Energy provides Field personnel with the work locations and all
tools and equipment they need in order to perform their duties for Energy,
and Field employees regularly hold themselves out to others as working for
and on behalf of Energy. Although Field is the employer of those
employees that perform work for Energy by way of executed employment
contracts, Energy also has the right to terminate Field employees.
Field further urges that the corporate structure itself is a strong
indication that Energy has the requisite control over Field in order to classify
the Field employees as borrowed employees of Energy. Field is a wholly
owned subsidiary of Energy, completely managed by its sole member
pursuant to the LLC Operating Agreement. Field has no assets of its own,
nor any funds to buy the tools, equipment, or trucks used by the Field
employees in their work for Energy. Energy owns and funds the bank
account used by Field to process payroll. The Field employees perform
work solely for Energy on a daily basis.
The Plaintiffs primarily argue that Field maintained control and
supervision of its employees because Field employed both labor and
supervisory levels of personnel. All the employees that managed the DeSoto
well, such as the roles of District Foreman, Production Foreman, Lead
Operator, Head of Safety, and HSE Advisor, were all employed by Field.
The Field employees negotiated the terms of the agreement with USFS and
12
were the ones involved in handling the aftermath of the explosion. No
evidence was presented that any Energy employees had a direct supervisory
role over the personnel involved in the DeSoto well’s regular, daily
operations. Also, the employment contracts executed by the Field
employees state that Field is their employer, provide that training will be
provided by Field, indicate that Field has the right to terminate employment,
and designate the specific individual the contracting employee is to report to
– in all employment contracts offered into evidence, the supervisor also
being a Field employee.
The Plaintiffs strongly assert that Field’s status as a wholly owned
subsidiary of Energy is irrelevant to the determination of whether Energy
exerted the requisite control over Field or whether it vicariously receives the
tort immunity of its parent company. It refers to the Louisiana Supreme
Court’s holding in Smith v. Cotton’s Fleet Service, Inc., 500 So. 2d 759 (La.
1987), that rejected a defendant’s attempt to “merge itself with its parent,
make the parent the actual employer of the plaintiff, and thereby immunize
itself and the parent from plaintiff’s tort claim.” The Court proceeded to
state that the defendant’s argument “attacks a basic policy decision of the
legislature that is generally favorable to corporate investors and which
defendant without a doubt would have defended strongly had this been a tort
suit by a third person seeking to pierce the corporate entities.” Id.
It is well settled that tort immunity under the borrowed employee
doctrine is an affirmative defense. Billeaud v. Poledore, 603 So. 2d 754 (La.
App. 1 Cir. 1992), writ denied, 608 So. 2d 176 (1992). The party seeking to
claim the status of a borrowing employer bears the burden of proof on this
issue. Id. Courts have recognized that the question of borrowed employee
13
status is inherently factual and should typically be decided by the jury. Id.
Because immunity based on the borrowed employee doctrine is in
derogation of the general tort rights of victims, the scope of immunity must
be strictly construed. Sewell v. Doctors Hospital, 600 So. 2d 577 (La. 1992).
Direct Negligence
Field argues that the trial court erred in denying its motion for
summary judgment by finding genuine issues of material fact as to whether
Field was directly negligent in causing the subject accident.
Field claims it had no direct liability because it had no ownership or
contractual interest in the DeSoto well, which is owned by Aethon United
and operated by Energy. Energy was the contractual operator of the well
who assigned and managed all tasks and activities of the DeSoto well.
Energy was also the contracting party for the dismantlement project who
hired USFS, Key Energy or G&D.
The Plaintiffs rely on the testimony of their expert witness, Gregg
Perkin (“Perkin”), a professional engineer offered as an expert in oilfield
operations and safety, who opined that since it was actually the Field
employees who were executing the daily operations of the DeSoto well for
the dismantlement project, they essentially acted as an “operator” of the
specific tasks involved in the project. Perkin defined the “operator of a
well” as follows:
An operator of a well can be many different definitions. An
operator can be an owner, an operator can be a partial owner of
the well. An owner – an operator is going to call the shots relative
to how they’re going to produce this well, how they’re going to
repair this well, how they’re going to abandon this well, how
they’re going to modify this well. Those are all the duties and
responsibilities of an operator. The operator’s responsible to the
state, or the, you know, the authorities for operating their well
14
safely and doing the right things, not to injure people, pollute the
environment, that sort of thing.
In Perkin’s opinion, Field employees “controlled the details of the operations
of this well and the maintenance of this well and the repairs of these wells,”
and were the individuals who were at the well each workday performing the
daily tasks necessary for the well’s operation; therefore, in his opinion, Field
was the well operator, even if the activities were being performed on behalf
of Energy. Therefore, Field assumed certain responsibilities as the operator
“by default” despite not being the contractual operator of record for
regulatory purposes.
Field also argues that the Master Service Agreement expressly states
that USFS was an independent contractor and neither Energy nor Field, as an
affiliate of Energy, exercised any control or supervision over the USFS
employees for the tank dismantling project. It urges that, as specifically
provided in the agreement, there was no duty imposed on Energy or Field to
do anything beyond removing “free liquids” from the tank, or to ensure that
safety protocols were set and followed in dismantling the tank. The trial
court found that Energy owed no duty to remove all traces of hydrocarbons
and enforce safety procedures for the dismantling of the tank, and to hold
otherwise would be in contravention of the rights and obligations pursuant to
the agreement between Energy and USFS. Field claims that there is no
evidence it had any duty separate from or in addition to that which was not
imposed upon Energy by the trial court.
Plaintiffs continue to rely on Perkin’s testimony to assert that Field
violated federal regulations, industry-standard protocols, and its own safety
policies and procedures. In Perkin’s opinion, the USFS Proposal specifying
15
that Energy was responsible for draining the free liquid from the tank
actually meant that Energy was responsible for cleaning the tank and
removing all traces of hydrocarbons from the tank because there is no way to
remove all the free liquids without a proper cleaning of the tank.
Plaintiffs claim that the evidence proves that Field was directly
negligent in causing the explosion because employees of Field, not Energy,
coordinated the tank removal project and communicated directly with USFS
regarding the scope of their work. USFS witnesses testified that, based on
their discussions with Field personnel, they understood that the tank was
cleaned and prepared for cutting when they arrived and that their scope of
work was limited to cutting the tank, NORM (“naturally occurring
radioactive material”) decontamination, and hauling it away. In addition,
USFS representatives testified that it should have been clear just from the
quoted amount of the dismantlement project Proposal that the scope of work
did not include the cleaning that would be necessary prior to commencement
of any hot work.
Plaintiffs also claim, based on Perkin’s testimony, that Field did not
sufficiently remove the liquid hydrocarbons from the tank because it used a
vacuum truck method. At minimum, this method would have left vapors
that ignited and caused the explosion, but it is also quite possible that
standing liquids were not adequately removed because of the size and shape
of the tank, how it would have been vacuumed, and inadequacies of the
“sniffer” to check for flammable content.
Plaintiffs further contend that Energy and Field had the primary
responsibility to ensure that certain safety standards were met. As the
operator of record for regulatory purposes, Field, due to its employees’
16
involvement in the management of the DeSoto well, had a duty to clearly
communicate the expectations, roles, and responsibilities of the various
parties that it involved in the tank decommissioning project. Plaintiffs assert
that at best, there was confusion concerning the scope of USFS’s work,
which is evidence of negligence by Field, which owed the responsibility to
ensure that all parties were well apprised of their respective roles and
responsibilities as it related to the dismantlement project.
Reasoning
A ruling regarding a motion for summary judgment is reviewed de
novo, using the same criteria that govern the district court’s consideration of
whether a summary judgment should be granted: whether there is any
genuine issue of material fact, and whether the movant is entitled to
judgment as a matter of law. Smith v. Robinson, 18-0728 (La. 12/5/18), 265
So. 3d 740; Franklin v. Dick, 51,479 (La. App. 2 Cir. 6/21/17), 224 So. 3d
1130.
Summary judgment is favored and will be granted if the evidence is
sufficient to show that there are no genuine issues of material fact and the
movant is entitled to judgment as a matter of law. La. C.C.P. art. 966; Bank
of America, N.A. v. Green, 52,044 (La. App. 2 Cir. 5/23/18), 249 So. 3d 219.
A fact is material if it potentially ensures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the legal
dispute. Jackson v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So. 3d
876, cert. denied, 574 U.S. 869, 135 S. Ct. 197, 190 L. Ed. 2d 130 (2014).
A genuine issue of material fact is one as to which reasonable persons could
disagree; if reasonable persons could reach only one conclusion, there is no
need for trial on that issue and summary judgment is appropriate.
17
Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So. 2d 773; Bloxham v.
HDI-Gerling American Insurance Co., 52,177 (La. App. 2 Cir. 6/27/18), 251
So. 3d 601. In determining whether an issue is genuine, a court should not
consider the merits, make credibility determinations, evaluate testimony, or
weigh evidence. Chanler v. Jamestown Insurance Co., 51,320 (La. App. 2
Cir. 5/17/17), 223 So. 3d 614, writ denied, 17-01251 (La. 10/27/17), 228 So.
3d 1230.
The burden of proof remains with the movant. La. C.C.P. art. 966(D).
However, if the moving party will not bear the burden of proof on the issue
at trial and points out that there is an absence of factual support for one or
more elements essential to the adverse party’s claim, action, or defense, then
the non-moving party must produce factual support sufficient to establish
that he will be able to satisfy his evidentiary burden of proof at trial. Id. If
the opponent of the motion fails to do so, there is no genuine issue of
material fact and summary judgment will be granted. Bufkin v. Felipe’s
Louisiana, LLC, 14-0288 (La. 10/15/14), 171 So. 3d 851; Schultz v. Guoth,
10-0343 (La. 1/19/11), 57 So. 3d 1002. The court determines whether there
is a genuine issue of triable fact, with all doubts resolved in favor of the non-
moving party. Larson v. XYZ Ins. Co., 16-0745 (La. 5/3/17), 226 So. 3d
412.
Field, as both the movant under summary judgment and as the party
seeking to claim the status of borrowing employer, bears the burden of proof
as to whether Field’s employees qualify as the borrowed employees of
Energy such that they may receive tort immunity. This Court finds that
Field has not met such burden and genuine issues of material fact exist as to
this particular issue. We recognize the reasoning in Billeaud v. Poledore,
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supra, that the question of borrowed employee status is inherently factual
and should typically be decided by the jury. This is such a case. Both
parties have presented arguments that give rise to legitimate questions as to
whether Energy or Field had control over the actions of the employees
involved in the dismantlement project pursuant to the borrowed servant
doctrine, not all of which may be appropriately disposed of by summary
judgment.
Further, the testimony of expert witness, Gregg Perkin, brings to light
several issues as to the direct liability of the Field employees, including but
not limited to, inadequate management of the project, failure to properly
communicate and supervise, failure to follow required safety protocols and
procedures, and failure to comply with the terms of the USFS agreement by
draining the free liquids (which would encompass an issue of material fact in
and of itself as an ambiguous term of the contract). Therefore, we find there
are genuine issues of material fact as to whether Field was directly negligent
in causing the accident and agree with the trial court’s denial of Field’s
motion for summary judgment as to this issue.
CONCLUSION
For the foregoing reasons, this Court finds that there are genuine
issues of material fact as to both the issues of: (1) whether Field employees
were borrowed employees of Energy, such that Field and its employees
vicariously receive Energy’s tort immunity; and (2) whether Field was
directly negligent. We hereby affirm the trial court’s denial of Field’s
motion for summary judgment. All costs of this proceeding are to be paid
by Field.
AFFIRMED.
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