Hartland Dean West v. Kerr-Mcgee Corporation

TATE, Circuit Judge,

concurring:

I concur in the reversal result reached by the excellent and scholarly majority opinion. Even if the “borrowed servant” doctrine should be applicable to bar a tort-suit in the present circumstances, summary judgment was improvident under Alday v. Patterson Truck Line, 750 F.2d 375 (5th Cir.1985).

Nevertheless, I would prefer to rest our reversal on a broader basis. The plaintiff West sues Kerr-McGee, a platform operator, for tortious injuries received on its platform through Kerr-McGee’s fault. The plaintiff West was not an employee of Kerr-McGee; he was working on Kerr-McGee’s platform as an employee of Berry Brothers, which had entered into a contract with Kerr-McGee to supply labor services, including those rendered by West in the course of his employment with Berry Brothers. Berry Brothers had secured insurance to pay benefits to any of its injured during employment the benefits to which the employee was entitled under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq. (“the Act”).

I.

By its motion for summary judgment, Kerr-McGee — which is not West’s employer — claims the benefit of the statutory immunity granted to employers responsible for compensation benefits by Section 905(a) of the Act, 33 U.S.C. § 905 (a) (1984). 1 However, Section 904(a) of the Act, 33 U.S.C. § 904 (a) (1984), provides that “a contractor [such as Kerr-McGee] be liable for ... the payment of compensation ... only *533 if a subcontractor [such as Berry Brothers] fails to secure the payment of compensation.” 2

Since the subcontractor Berry Brothers did secure the payment of the Act’s benefits to its injured employees, the contractor Kerr-McGee, the present defendant, is not liable for compensation benefits. See 33 U.S.C. § 904 (a), quoted at note 2 supra. Under the unambiguous terms of section 905(a), 33 U.S.C. § 905 (a) — “The liability of an employer prescribed in section 90Jf of this title shall be exclusive and in place of all other liability of such employer to the employee” (emphasis added) — Kerr-McGee is not entitled to the immunity from tort liability granted only where the Act grants a compensation remedy against an “employer.”

This Congressional intent is made explicit by the concluding section of section 905(a), as amended in 1984: “For purposes of this [“Exclusiveness of liability”] section, a contractor [here, Kerr-McGee] shall be deemed the employer of a subcontractor’s [here, Berry Brothers’] employees only if the subcontractor fails to secure the payment of compensation as required by section 904 of this title.” (Emphasis added.)

The statutory language is explicit, and it makes functional sense: only where an employer is liable for the compensation remedy provided by the Act is that remedy made exclusive against him for the employee’s injuries. It makes no functional sense to hold that a contractor, immune under the Act from compensation remedy for injuries received by a subcontractor’s employees, is nevertheless also entitled to tort immunity because of the exclusive nature of the compensation remedy accorded, not at all against the contractor, but solely against the subcontractor. It is statutorily irrelevant under the Act’s compensation scheme that, for third-party tort purposes, the subcontractor’s employee may be a “borrowed servant” of the contractor for whose torts the contractor may be liable.

The statutory language is explicit and free from ambiguity. No consideration of the statute itself or of its other provisions gives rise to any implication of doubt as to the legislative intent. “[T]he starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intent to the contrary, the language must ordinarily be regarded as conclusive.” Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 , 100 S.Ct. 2051, 2056 , 64 L.Ed.2d 766 (1980). “Where, as here, a resolution of a question of federal law turns on a statute, we look first to the statutory language, and then to the legislative history if the statutory language is unclear.” Blum v. Stenson, 465 U.S. 886 , -, 104 S.Ct. 1541, 1548 , 79 L.Ed.2d 891 (1984) (emphasis added). While this rule of statutory construction is “rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists,” Watt v. Alaska, 451 U.S. 259, 266 , 101 S.Ct. 1673, 1678 , 68 L.Ed.2d 80 (1981), here nothing in the legislative history nor the statutory scheme as a whole indicates any intent or rational reason why a contractor, immune under the Act from compensation remedy, should be accorded tort-immunity also, (based on the exclusive nature of the compensation remedy, when granted) as to the tortiously injured employee of a subcontractor (who, under the Act, is liable exclusively for the compensation remedy).

II.

As the scholarly majority opinion notes, the 1984 amendments to the Act were spe *534 cifically adopted to overrule legislatively a Supreme Court decision that a general contractor enjoyed the tort-immunity conferred by the Act as to work-injuries sustained by a subcontractor’s employees, and to make plain that such statutory immunity had never been intended to be conferred unless the contractor himself was liable for compensation benefits under the Act.

The majority concludes that, because of this narrow purpose of the 1984 amendments (as stated by a legislative report) to overrule the unwanted deviation by the Supreme Court decision from 56 years of precedent, the 1984 Congressional clarifications did not intend to disturb the aberrational and thin line of precedent of this circuit that had accorded a general contractor tort immunity for injury to a subcontractor’s employee under the “borrowed servant” doctrine.

The Congressional report did not refer to this thin line of mostly Fifth Circuit jurisprudence, totally inconsistent with the general purposes and express language of the 1984 amendments. I do not find the absence of reference to these decisions, in the brief conclusory statement of the legislative report, as any indication that the Congress desired to preserve the precedential effect of all and any pre-1984-Amendment judicial decisions, nor especially of any that were completely contrary to the unambiguous language of the 1984 amendments— which was specifically intended to clarify that a general contractor enjoyed no tort-immunity as to work-injuries sustained by a subcontractor’s employee, where that subcontractor had (as here) secured the payment to the injured employee of compensation benefits accorded him by the Act.

The majority notes that this “borrowed servant” immunity first surfaced in Ruiz v. Shell Oil Company, 413 F.2d 310 (5th Cir. 1969). In Ruiz , a maritime personal injury suit involving an injured barge worker, the issue on the contractor’s appeal from adverse tort judgment was raised by the contractor’s contention that the district court had erroneously failed to grant a jury instruction exculpating the contractor from liability on the “borrowed servant” doctrine. (By this instruction, the contractor would receive the Act’s immunity if the trier of fact found that the injured barge worker (who was employed by a subcontractor) had become the borrowed servant of the contractor).

The Ruiz panel decision affirmed the non-application of the “borrowed servant” doctrine under the facts in that case; but, without discussion or analysis of the Act, assumed that the doctrine was applicable. 3 Subsequently, on authority of Ruiz , a scattered line of decisions, e.g., Hebron v. Union Oil Company of California, 634 F.2d 245 (5th Cir.1981) and Gaudet v. Exxon Corporation, 562 F.2d 351 (5th Cir.1977), has recognized this defense as available to a general contractor when a subcontractor’s employee sues the general contractor in tort.

Under the pre-1984 wording of Sections 904(a) and 905(a) of the Act, there may have been room for a construction that the general contractor might be immune from tort suit by a subcontractor’s employee if the latter was a “borrowed employee;” or, *535 at least, the Supreme Court apparently so found, in its decision that was immediately and retroactively overruled by the Congress as contrary to the legislative intent and statutory scheme of the Act. Whatever merit there may have been to the “borrowed servant” tort immunity judicially granted to that contractor — albeit, without judicial analysis of the Act or reasoned judicial explanation for the immunity — has disappeared with the 1984 clarification of language as above noted. The specific addition of the concluding sentence of § 905(a), 33 U.S.C. § 905 (a) (1984) (quoted at note 1 supra) states that, with regard to the exclusive liability of an “employer” from the compensation remedy provided by the Act, “a contractor shall be deemed the employer of a subcontractor’s employees only if the subcontractor fails to secure the payment of compensation.” (Emphasis added.)

Under the present facts, Kerr-McGee (the contractor) was not statutorily liable to the plaintiff West for compensation benefits under the Act, for West’s payroll employer, Berry Brothers (Kerr-McGee’s subcontractor), had secured payment of the Act’s compensation benefits to its employees injured at work on the Kerr-McGee premises. Likewise, not being an “employer” liable for compensation benefits under the Act, Kerr-McGee is unambiguously not accorded by the Act any immunity from tort suit, in this immunity being essentially grounded on the exclusive nature of the Act’s compensation remedy when accorded against an “employer” liable for such compensation benefits.

Conclusion

I concur in the majority opinion of my esteemed brethren, because it reverses the summary judgment as improvidently granted. I would hope that the majority’s failure to reverse on the broader statutory ground enunciated by this concurring opinion, an issue raised sua sponte by the court at oral argument, will be reconsidered; if not now, then when the issue is squarely presented by an actual denial of tort recovery under present circumstances.

. 33 U.S.C. § 905 (a), as amended in 1984, provides:

(a) Employer liability; failure of employer to secure payment of compensation The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee. For purposes of this subsection, a contractor shall be deemed the employer of a subcontractor's employees only if the subcontractor fails to secure the payment of compensation as required by section 904 of this title. [Emphasis added.]

. 33 U.S.C. § 904 (a), as amended in 1984, provides:

Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title. In the case of an employer who is a subcontractor, only if such subcontractor fails to secure the payment of compensation shall the contractor be liable for and be required to secure the payment of compensation. A subcontractor shall not be deemed to have failed to secure the payment of compensation if the contractor has provided insurance for such compensation for the benefit of the subcontractor. [Emphasis added.]

. Ruiz, supra, 413 F.2d at 312 n. 1, cites six decisions with regard to the application of the doctrine, all of which concerned the liability or not of the general contractor to third persons injured by the tort of a "borrowed employee" (i.e., the subcontractor's employee), and only one of which concerned a waterfront accident. None involved the issue of whether a contractor was relieved of tort liability because of the exclusive compensation remedy, if through his fault he injured the "borrowed employee” himself.

The one waterfront decision, Standard Oil Company v. Anderson, 212 U.S. 215 , 29 S.Ct. 252 , 53 L.Ed. 480 (1909), concerned whether an injured longshoreman could recover against the owner and operator of a winch for injuries received through the negligence of the winch-man. The defendant's defense was that the winchman was a borrowed servant of the longshoreman’s employer (a master stevedore), so that the stevedore not the winch operator was responsible for the winchman’s tort. In holding that the payroll employer of the winchman (the winch operator) was liable for the winchman’s negligence, the Court at no point referred to the longshoreman’s compensation remedy.