Petition for Writ of Certiorari — Walter Skipper, Petitioner v. A&M Dockside Repair, Incorporated, et al.

Supreme Court briefMar 15, 2021

Ask Donna

What actually matters in this document.

Text

NO. 21-___________

__________________________________________

SUPREME COURT OF THE UNITED STATES

__________________________________________

WALTER SKIPPER,

Petitioner

vs.

A&M DOCKSIDE REPAIR, INCORPORATED, &

HELIX RESOURCES, LLC

Respondents

__________________________________________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fifth Circuit

__________________________________________

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

__________________________________________

LAWRENCE BLAKE JONES

BLAKE JONES LAW FIRM, LLC

701 Poydras Street, Suite 4100

New Orleans, Louisiana 70139

Telephone: (504) 525-4361

Facsimile: (504) 525-4380

Email: jones@nola-law.com

APPENDIX – TABLE OF CONTENTS

DOCUMENT

PAGE

District Court Order and Reasons

U.S. Fifth Circuit Court of Appeals, Opinion, 9.16.20

U.S. Fifth Circuit Court of Appeals, Denial of Rehearing

District Court Final Judgment

Judgment, U.S. Fifth Circuit Court of Appeals

Rule 8 of the Federal Rules of Civil Procedure

Rule 15 of the Federal Rules of Civil Procedure

Rule 16 of the Federal Rules of Civil Procedure

Petitioner’s Amended Complaint

Answer to Amended Complaint by A&M Dockside

Answer to Original and Amended Complaint by Helix Resources

Answer to Third Party Complaint by Helix Resources

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 1 of 20

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WALTER SKIPPER

CIVIL ACTION

VERSUS

NO. 18-6164

A&M DOCKSIDE REPAIR, INC.,

ET AL.

SECTION “R” (4)

ORDER AND REASONS

Before the Court is A&M Dockside Repair, Inc.’s and Helix Resources,

LLC’s joint motion for partial summary judgment.1 Because A&M was

Skipper’s borrowing employer for the purposes of the LHWCA, the Court

grants the motion.

BACKGROUND

This case arises out of a workplace accident. At the time of the

accident, plaintiff Walter Skipper was employed by third-party defendant

Helix Resources, LLC, as a painter and blaster.2 On August 11, 2017, plaintiff

was working on a barge in a shipyard that is owned and operated by

R. Doc. 48.

R. Doc. 15 at 2 ¶ 5.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 2 of 20

defendant A&M Dockside Repair, Inc. 3 In the course of performing his

duties, plaintiff allegedly fell into an open manhole cover on the barge and

suffered severe injuries. 4

On June 22, 2018, Skipper filed a complaint alleging negligence against

A&M and Cashman Equipment Corporation, a party that owned the barge

and has since been dismissed from the case.5 On January 17, 2019, the Court

granted A&M’s motion for leave to file a third-party complaint against

Helix. 6 A&M and Helix have now filed a joint motion for partial summary

judgment on the basis that Skipper was a borrowed servant of Helix, that

A&M was acting as Skipper’s borrowing employer, and that therefore

compensation and medical payments are Skipper’s sole remedy under the

Longshore & Harbor Workers’ Compensation Act. 7

II.

LEGAL STANDARD

Summary judgment is warranted when “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

Id.

See R. Doc. 1; see also R. Doc. 23.

R. Doc. 25.

R. Doc. 48-1.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 3 of 20

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party “must come forward with evidence

which would ‘entitle it to a directed verdict if the evidence went

uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 4 of 20

948, 951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with evidence sufficient to demonstrate the “existence of a

genuine dispute of material fact,” or by “showing that the moving party’s

evidence is so sheer that it may not persuade the reasonable fact-finder to

return a verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325.

The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘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.’” (quoting Celotex, 477 U.S. at 322

(emphasis added))).

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 5 of 20

III. DISCUSSION

A&M and Helix argue for partial summary judgment under the

Longshore & Harbor Workers’ Compensation Act. The LHWCA limits the

remedy of a longshoreman or harbor worker against his employer to

compensation and medical benefits. See 33 U.S.C. § 933(i) (“The right to

compensation or benefits under this chapter shall be the exclusive remedy to

an employee when he is injured . . . by the negligence or wrong doing of any

other person . . . in the same employ.”). It is undisputed that Skipper is a

longshoreman or harbor worker and is thus covered by the LHWCA. A&M

and Helix argue that Skipper was the “borrowed servant” of Helix, that A&M

was borrowing plaintiff, and therefore Skipper’s remedies are limited by the

LHWCA. See Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977)

(analyzing the borrowed servant defense in the context of the LHWCA).

Skipper opposes the motion for partial summary judgment on two

grounds. First, Skipper argues that the borrowed servant defense has been

waived, because it was not properly asserted in A&M’s answer. Second,

Skipper argues that genuine issues of fact remain that preclude a grant of

summary judgment. The Court addresses each argument in turn.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 6 of 20

Waiver

Skipper argues that defendants’ motion for partial summary judgment

must be denied because both A&M and Helix failed to raise it as an

affirmative defense in their answers. Affirmative defenses are pleadings

governed by Rule 8 of the Federal Rules of Civil Procedure. A defendant is

required to “state in short and plain terms its defenses to each claim asserted

against it” and “affirmatively state any avoidance or affirmative defense.”

Fed. R. Civ. P. 8(b)(1)(A), 8(c)(1). In Woodfield v. Bowman, 193 F.3d 354

(5th Cir. 1999), the Fifth Circuit held that affirmative defenses are subject to

the same pleading requirements as a complaint and articulated a “fair notice”

standard for pleading affirmative defenses. Id. at 362. Under this standard,

a defendant is required to plead an affirmative defense “with enough

specificity or factual particularity to give the plaintiff ‘fair notice’ of the

defense that is being advanced.” Id. (citation omitted). Failure to adequately

plead an affirmative defense can result in a waiver of the defense. Rogers v.

McDorman, 521 F.3d 385 (5th Cir. 2008).

But failure to strictly comply with Rule 8(c) does not always result in

waiver. The purpose of the rule “is to give the opposing party notice of the

affirmative defense and a chance to argue why it should not apply.” Pasco v.

Knoblauch, 566 F.3d 572, 578 (5th Cir. 2009) (citation omitted). Therefore,

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 7 of 20

“an affirmative defense is not waived if the defendant ‘raised the issue at a

pragmatically sufficient time and [plaintiff] was not prejudiced in its ability

to respond.’” Id. at 577 (quoting Allied Chem Corp. v. Mackay, 695 F.2d 854,

855-56 (5th Cir. 1983)). The Court does “not take a formalistic approach to

determine whether an affirmative defense was waived.” Id. Rather, it

“look[s] at the overall context of the litigation” to determine whether

“evidence of prejudice exists and sufficient time to respond to the defense

remains before trial.” Id. Indeed, the Fifth Circuit has “repeatedly rejected

waiver arguments when a defendant raised an affirmative defense for the

first time at summary judgment—or even later.” Motion Med. Tech., LLC v.

Thermotek, Inc., 875 F.3d 765, 772 (5th Cir. 2017).

It is therefore necessary to determine whether defendants raised the

defense “at a sufficiently pragmatic time,” and whether plaintiff was

prejudiced in his ability to respond. Motion Med. Tech., 875 F.3d at 771.

Here, Skipper first had reasonable notice the borrowed servant defense may

be asserted months ago, when Helix appeared in the suit. Indeed, in its

answer to A&M’s third-party complaint, which is part of the record of this

case, Helix asserts that “Mr. Skipper was on a mission for his employer and

performing employment-related activities” 8 and that because Helix was

R. Doc. 29 at 9.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 8 of 20

Skipper’s employer, Skipper has “no right to seek tort remedies from Helix,

nor any other party to attempt to pass through alleged fault to Helix.” 9 Helix

also alleged that Skipper’s “sole remedy against it is for compensation under

the Louisiana Worker’s Compensation Act or, alternatively, under the

Longshoremen’s and Harbor Workers’ Compensation Act.” 10 Although Helix

does not incant the words “borrowed servant defense” these allegations offer

reasonable notice to Skipper that the defense would be asserted in this case.

Given that Helix’s answer was submitted in February, plaintiff had

reasonable notice, and the defense was raised in a sufficiently pragmatic

time.

Skipper is not prejudiced by the Court’s consideration of the borrowed

servant defense at this juncture.

Plaintiff provides fulsome, reasoned

responses to defendants’ arguments in his opposition. 11 Skipper even cites

to various exhibits, including deposition testimony, in his response.12 And

although plaintiff asserts that there still exist genuine issues of fact, he argues

these are issues the trier of fact must decide—not that additional discovery is

required to resolve the issues. Indeed, Skipper does not request additional

Id.

See R. Doc. 51.

See R. Doc. 51 at 4.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 9 of 20

time for discovery or suggest that additional discovery would cure any

prejudice he may face.

Because Skipper had adequate notice that the borrowed servant

defense would be asserted and is not prejudiced in responding to the

defendants’ motion for partial summary judgment, the Court finds that

defendants did not waive the borrowed servant defense.

Genuine Issues of Fact

Skipper also avers that the motion for partial summary judgment must

be denied because issues of material fact still exist with respect to whether

A&M was acting as Skipper’s borrowing employer. The Fifth Circuit has held

that “in absence of substantial evidence to the contrary . . . the issue of

whether a relationship of borrowed servant exist[s] is a matter of law.” Ruiz

v. Shell Oil Co., 413 F.2d 310, 341 (5th Cir. 1969). Here, the relevant facts are

not in dispute. Rather, plaintiff disputes the legal conclusion that should be

drawn from the facts. This is a question of law for the Court.

Courts have developed a nine factor test to determine whether

borrowed servant status exists. The nine factors are:

(1) Who has control over the employee and the work

he is performing, beyond mere suggestion of details

or cooperation?

(2) Whose work is being performed?

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 10 of 20

(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?

Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977). “No single factor,

or combination of them, is determinative.” Brown v. Union Oil Co. of Cal.,

984 F.2d 674, 676 (5th Cir. 1993). Although in the respondeat superior

context, the first factor—control—is often emphasized, in the tort immunity

context, the Fifth Circuit has focused on the fourth, fifth, sixth, and seventh

factors. Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 n.12 (5th Cir.

1988) (citing Gaudet, 562 F.2d at 356-57). This is because “these factors deal

with the question of whether the circumstances of the employee’s

employment are such that the defendant ‘should be considered an employer

and not a third party under the LHWCA.’” Id. (citing Gaudet, 562 F.2d at

357).

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 11 of 20

Control

The first inquiry is control. The evidence establishes that A&M, as a

borrowing employer, exerted significantly greater control over Skipper than

did his nominal employer, Helix. Brian Mayon, the yard superintendent at

A&M, testified that Mr. Skipper’s only supervisors on the barge where he

worked and was injured were A&M foremen, and that they were “in charge

of all of [Helix’s] workers.”13 He also testified that he was to direct Mr.

Skipper’s work.14 Skipper similarly testified that A&M Dockside was “the

boss”15 and that Helix employees “were just laborers.”16 Skipper testified that

A&M dockside had responsibility for him and his co-workers,17 and he refers

to Mayon as “boss man.”18 This testimony from both plaintiff and the yard

foreman strongly indicates that A&M exercised control over Skipper and

directed his work, not Helix.

Skipper argues that genuine issues of material fact exist as to control

that would preclude summary judgment.

In particular, he argues that

Skipper and the foreman were equals and that Skipper was not subordinate

Motion for Partial Summary Judgment Exhibit 2 at 45:13-17.

Id. at 45:18-46:1.

Motion for Partial Summary Judgment Exhibit 4 at 89:5-10.

Id. at 89:13.

Id. at 90:16-19.

Id. at 94:20-22.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 12 of 20

to Mayon or to A&M employees. This argument is plainly refuted by the

evidence discussed above. Plaintiff cites to a separate portion of Skipper’s

deposition to support his argument. But the deposition testimony Skipper

cites in no way indicates that Skipper was not subordinate to Mayon. Mayon

stated that Skipper “seemed very familiar with the oilfield” and “worked with

the oilfield his whole life.” 19 This does not suggest that Skipper and Mayon

were equals, or that Mayon was not directing Skipper’s actions. Indeed,

immediately after that statement, Mayon listed directions he gave Skipper,

stating: “I told him he was going with the other hands we had and a couple

of guys from my crew [to] clean tanks. He asked how they were cleaning

them. I told him we had some big vacuum systems . . . I showed him who he

was going to be working with . . . .”20 Accordingly, the Court finds that the

“control” factor favors a finding of borrowed servant status.

Whose Work?

The second factor—whose work was being performed—also weighs in

favor of borrowed servant status. Mayon testified that Skipper’s work was to

do the repairing and cleaning of the barge for A&M. 21 Skipper does not

contest these facts. Rather, Skipper argues that as a hired laborer, he was

Opposition Exhibit 1 at 22:4-6.

Id. at 22:6-14.

Motion for Partial Summary Judgment Exhibit 2 at 45:21-46:21.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 13 of 20

truly doing the work of Helix, whose business is hiring out laborers. He

therefore argues he was only incidentally doing the work of A&M.

Skipper’s argument is without merit. That Helix’s business is hiring

out labors does not negate that Skipper was doing A&M’s work at the time of

his injury. Skipper cites two cases in support of his argument. He first cites

to language from Rollans v. Unocal Exploration Corp., No. 93-431, 1993 WL

455731 (E.D. La. Nov. 4, 1993). 22 In that case, a cook who worked for a

company that supplied food services was hired to cook for the crew on an

offshore drilling platform, and he was injured after slipping on bacon grease.

Id. at *1. There, the court found that the cook was performing the work of

the catering company, not the oil platform. Id. at *2. But the court in Rollans

emphasized that the plaintiff was supervised by someone from the catering

company and did not answer to any of the defendant’s personnel. Id. And

the job of a cook, who works for a catering company hired to provide catering

to an oil platform’s workers, is different from the case at hand. Here, Helix

hires out laborers such as Skipper to do the actual work of A&M—servicing

Skipper’s citation for this language is Mathis v. Union Exploration

Partners, Ltd., No. 90-2009, 1991 WL 42570 (E.D. La. Mar. 26, 1991). But

the relevant language is absent from that case, which does not analyze this

factor in depth. The Court therefore focuses its analysis on Rollans.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 14 of 20

and repairing boats—not to do a task ancillary to that, such as cooking, which

is not A&M’s work.

Skipper also cites to Boston Old Colony Insurance. Co. v. Tiner

Associates, Inc., 288 F.3d 222 (5th Cir. 2002). But that case states only that

under Louisiana law, where a general employer’s business is hiring out its

employees and it retains control of the employee at the time of the

negligence, it remains liable for the torts of those borrowed employees. Id.

at 229 (citing Morgan v. ABC Mfr., 710 So. 2d 1077 (La. 1998)). It does not

speak to whose work is being performed. The Court therefore finds that this

factor, too, weighs in favor of borrowed servant status.

Agreement

The agreement between A&M and Helix states that Helix’s employees,

including Skipper, “shall at all times be deemed an independent contractor

and the relationship of these parties to Client shall not at any time constitute

any relationship other than that of an independent contractor.” 23 The Court

finds this factor weighs against the finding of a borrowed servant

relationship.

Skipper argues that the existence of this clause necessarily creates a

material issue of fact, and the partial summary judgment must be denied.

Partial Motion for Summary Judgment Exhibit 1 at 1.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 15 of 20

But there are no facts in dispute here—all parties agree on the language of

the contract and that it was binding. And courts have found borrowed

servant status notwithstanding the existence of such a clause. See, e.g.,

Gaudet v. Exxon Corp., 562 F.2d 351, 358 (5th Cir. 1977) (finding a borrowed

servant relationship when other factors other than agreement weighed

heavily in favor of finding the employee was a borrowed servant); Crawford

v. BP Corp., N.A., 2015 A.M.C. 1119 (E.D. La. 2015) (finding the parties’

performance had modified the contract so that the independent contractor

clause was not dispositive). The Court therefore finds that although this

factor weighs in plaintiff’s favor, it does not require the Court to forgo

granting the motion for partial summary judgment.

Did the Employee Acquiesce?

There is every indication that Skipper acquiesced to the work

arrangement with A&M. He knew he would be working for A&M, and there

is no evidence he took issue with working for that company. Skipper took

instructions from Mayon seemingly without issue 24 and viewed A&M as “the

boss.” 25 Indeed, Skipper does not present any argument with respect to this

Opposition Exhibit 1 at 22:6-14.

Partial Motion for Summary Judgment Exhibit 4 at 89:9-13.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 16 of 20

factor. The Court therefore finds this factor weighs in favor of finding a

borrowed servant relationship.

Did the Original Employer Terminate its Relationship?

As both parties recognize, this factor asks not whether Skipper’s

relationship with Helix was severed, but whether he maintained contact with

Helix, and whether he was supervised exclusively by A&M. See Hotard v.

Devon Energy Prod. Co. L.P., 308 Fed. App’x 739, 742 (5th Cir. 2009).

Although Skipper avers that there is no evidence that he lacked

communication with Helix or that he was supervised solely by A&M

employees, he offers no evidence to suggest he communicated with Helix or

was otherwise supervised by Helix employees. And the evidence refutes

Skipper’s position. Skipper testified that there were no Helix supervisors at

the job site.26

And, as discussed above, Skipper was taking directions

exclusively from A&M foremen. 27 The Court therefore finds that this factor

weighs in favor of borrowed servant status.

Tools and Place

Although Helix did provide some personal protection equipment, the

primary tools used to be complete the work of cleaning the barge were

Partial Motion for Summary Judgment Exhibit 4 at 89:2-7.

See, e.g., id. at 89:9-13.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 17 of 20

provided by A&M. 28 This includes the vacuum that Skipper was directed to

use. 29 All of the relevant work was to take place on the Chasman Equipment

barge, which A&M dockside was hired to clean.30 Skipper presents no

argument that this factor weighs against finding he was a borrowed servant.

The Court therefore finds this factor weighs in favor of finding a borrowed

servant relationship.

Length of Time

It is undisputed that Skipper worked for A&M for only six days, and

that the job at issue was to last only two weeks. This is a brief period of time

and cannot weigh in favor of finding a borrowed servant relationship. But it

also does not weigh against finding a borrowed servant relationship.

Caselaw in the Fifth Circuit states that this factor is “significant only when

the special employer employs the employee for a considerable length of

time.” See Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 618 (5th Cir.

1986). But when an employee is injured early in his employment, the factor

is neutral. Id. Indeed, the Fifth Circuit has found this factor neutral even

when an employee worked for a borrowing employer for as long as a month.

See Brown v. Union Oil Co. of California, 984 F.2d 674, 679 (5th Cir. 1993).

See Partial Motion for Summary Judgment Exhibit 2 at 47:18-48:8.

Id.

Id. at 45:21-46:18.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 18 of 20

The Court therefore finds this factor neutral. Even were the Court to find

that the short duration of Skipper’s employment with A&M weighed against

finding a borrowed servant relationship, the Court would still find that a

borrowed servant relationship exists because of the number of the other

factors that weigh heavily in favor of finding Skipper was a borrowed servant.

Right to Discharge

The inquiry under this factor is not which entity had the power to

terminate the injured plaintiff’s employment outright, but whether the

borrowing employer had the authority to terminate the employee’s services

with the borrowing employer itself. See Melancon, 834 F.2d at 1246. Mayon

testified that A&M had the right to fire Mr. Skipper and ask Helix to replace

him with another employee, and could have “rejected Mr. Skipper as a

temporary worker if they wanted to.” 31 Skipper presents no argument that

this factor weights against a finding of borrowed servant status. The Court

therefore finds that this factor weighs in favor of finding borrowed servant

status.

Obligation to Pay

The final factor asks who had the obligation to pay Skipper. Plaintiff

points out that the contract between A&M and Helix required Helix to pay

Partial Motion for Summary Judgment Exhibit 2 at 50:19-23.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 19 of 20

Skipper’s wages.32 But this does not end the inquiry. When the funds the

general employer uses to pay the employee are received from entity the

employee is contracted out to, that entity in effect pays the employee. See

Capps, 784 F.2d at 618. That is the case here. Mayon testified that A&M

paid Helix, which in turn paid Skipper.33 Skipper does not dispute this

arrangement.

The Court therefore finds this factor weighs in favor of

borrowed servant status.

10.

Conclusion

In sum, seven of the nine borrowed servant factors favor a borrowed

servant relationship, while only one suggests that a borrowed servant

relationship does not exist. One factor is neutral. Notably, the fourth, fifth,

and sixth factors—three of the four factors the Court must weigh most

heavily—favor a borrowed servant relationship. Accordingly, the Court finds

that A&M was Skipper’s borrowing employer for the purposes of the

LHWCA, and that therefore A&M and Helix are entitled to partial summary

judgment.

Partial Motion for Summary Judgment Exhibit 1 at 1 (requiring the

contractor, Helix, to “[A]ssume responsibility for the payment of wages to

each employee furnished to Client [A&M] hereunder.”).

Partial Motion for Summary Judgment Exhibit 2 at 51:6-10.

Case 2:18-cv-06164-SSV-KWR Document 60 Filed 01/02/20 Page 20 of 20

IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS the defendants’ motion

for partial summary judgment.

2nd day of January, 2020.

New Orleans, Louisiana, this _____

_____________________

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

Case: 20-30278

Document: 00515567469

Page: 1

Date Filed: 09/16/2020

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

September 16, 2020

No. 20-30278

Summary Calendar

Lyle W. Cayce

Clerk

Walter Skipper,

Plaintiff—Appellant,

versus

A&M Dockside Repair, Incorporated,

Defendant-Third Party Plaintiff—Appellee,

versus

Helix Resources, L.L.C.,

Third Party Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:18-CV-6164

Before King, Smith, and Wilson, Circuit Judges.

Case: 20-30278

Document: 00515567469

Page: 2

Date Filed: 09/16/2020

Per Curiam:*

Plaintiff-appellant Walter Skipper appeals the district court’s decision

granting partial summary judgment in favor of defendants-appellees A&M

Dockside Repair (“A&M”), Inc., and Helix Resources, L.L.C. (“Helix”).

The district court based its decision on the application of the borrowed

servant defense. We AFFIRM.

On August 11, 2017, Skipper was working on a barge in one of A&M’s

shipyards when he allegedly fell into an open manhole cover and suffered

severe injuries. At the time of the accident, Skipper was employed by Helix

as a painter and blaster. Helix provided Skipper’s services to A&M pursuant

to a services agreement.

Following the accident, Skipper filed a negligence action against

A&M, and A&M then filed a third-party complaint against Helix. After A&M

and Helix resolved the dispute between them, they filed a joint motion for

partial summary judgment. The district court granted the joint motion on the

grounds that “A&M was Skipper’s borrowing employer for the purposes of

the [Longshore & Harbor Workers’ Compensation Act (the “LHWCA”)].”

If this conclusion holds, compensation and medical payments are Skipper’s

sole remedy under the LHWCA. See 33 U.S.C. § 933(i) (“The right to

compensation or benefits under this chapter shall be the exclusive remedy to

an employee who is injured . . . by the negligence or wrong of any other person

. . . in the same employ.”). Skipper filed a timely notice of appeal.

Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 20-30278

Document: 00515567469

Page: 3

Date Filed: 09/16/2020

II.

We review a district court’s order granting summary judgment de

novo viewing all facts and evidence in the light most favorable to the nonmoving party. Burrell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir.

2016). Whether an employee is a borrowed servant is a question of law and,

therefore, also reviewed de novo. See Gaudet v. Exxon Corp., 562 F.2d 351,

358 (5th Cir. 1977); Ruiz v. Shell Oil Co., 413 F.2d 310, 314 (5th Cir. 1969).

But we review a district court’s decision regarding whether a party has

waived an affirmative defense for abuse of discretion. Motion Med. Techs.,

L.L.C. v. Thermotek, Inc., 875 F.3d 765, 771 & n.8 (5th Cir. 2017).

Skipper makes two arguments why summary judgment was improper.

First, Skipper argues that A&M and Helix waived the borrowed servant

defense. Second, Skipper argues that even if the defense was not waived,

there is a genuine dispute as to material facts that precludes summary

judgment. We address each argument in turn.

The district court concluded that the borrowed servant defense was

not waived. We agree. Federal Rule of Civil Procedure 8 requires a defendant

to “state in short and plain terms its defenses to each claim asserted against

it” and “affirmatively state any avoidance or affirmative defense.” FED. R.

CIV. P. 8(b)(1)(A), (c)(1). Although Skipper is correct that neither A&M nor

Helix expressly raised the borrowed servant defense as an affirmative defense

in their answers, this failure does not necessarily result in waiver. See Motion

Med., 875 F.3d at 772 (observing that we have “repeatedly rejected waiver

arguments when a defendant raised an affirmative defense for the first time

at summary judgment—or even later”). As we have previously held, “an

affirmative defense is not waived if the defendant ‘raised the issue at a

pragmatically sufficient time and [the plaintiff] was not prejudiced in its

Case: 20-30278

Document: 00515567469

Page: 4

Date Filed: 09/16/2020

ability to respond.’” Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009)

(quoting Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983)).

In this case, the district court concluded that Skipper had reasonable

notice and was not prejudiced by the district court’s consideration of the

borrowed servant defense at the summary judgment stage. First, the district

court observed that Helix made various assertions in its answer that

implicated the borrowed servant defense. For example, Helix asserted that

Skipper was on a “mission” for Helix and had “no right to seek tort remedies

from Helix, nor any other party to attempt to pass through alleged fault to

Helix as no Helix employees or supervisors were present at the time of the

incident and Helix relinquished control, supervision, and direction to

A&M.” Additionally, Helix asserted that Skipper’s sole remedy was for

compensation under the Louisiana Worker’s Compensation Act or,

alternatively, the LHWCA. 1 Second, the borrowed servant defense was

raised explicitly in a partial summary judgment motion filed months before

trial. Third, Skipper made thorough and reasoned responses to the

arguments that A&M was Skipper’s borrowing employer and made no

argument that he needed additional discovery on this issue. Therefore, the

district court did not abuse its discretion in concluding that the defense was

not waived.

Next, Skipper argues that there remains a genuine dispute as to

material facts as to whether A&M was acting as his borrowing employer. In

Ruiz v. Shell Oil, we set out nine factors relevant to whether the borrowed

servant defense applies. No one factor is dispositive. See Brown v. Union Oil

Skipper’s argument that these assertions did not put him on notice of the

borrowed servant defense because they were raised in Helix’s answer to A&M’s third-party

complaint is unavailing. To be sure, as the district court correctly observed, Helix’s answer

is part of the record in this case.

Case: 20-30278

Document: 00515567469

Page: 5

Date Filed: 09/16/2020

Co. of Ca., 984 F.2d 674, 676 (5th Cir. 1993). Skipper argues that there is a

genuine dispute as to material fact regarding four of the nine factors and that

two of the factors are neutral. We address each of the nine factors in turn.

(1) Who has control?

This inquiry focuses on whether A&M or Helix exerted greater

control over Skipper. Skipper argues that because a trier of fact could

conclude that he was acting in cooperation with A&M employees rather than

in subordination to their directions, there is a genuine dispute as to material

fact regarding control that precludes summary judgment. But Skipper’s own

testimony refutes this argument. Specifically, Skipper established that he

followed the directions of A&M’s yard superintendent, referring to A&M as

the “boss.” Additionally, the yard superintendent testified that Skipper’s

only supervisors were A&M foremen and that he directed Skipper’s work.

Indeed, Helix did not have any supervisors at the jobsite. Skipper also argues

that his status as an independent contractor per the terms of the services

agreement between A&M and Helix, creates a genuine dispute as to material

fact regarding control. This argument is meritless. In fact, we have previously

upheld the application of the borrowed servant defense despite this type of

clause. See, e.g., Gaudet, 562 F.2d at 358 (observing that the “trial court could

have concluded that the test for borrowed employee status was met

regardless of the ultimate resolution of the factual matter of the agreement

between the employers”). Therefore, we find that this factor favors

borrowed servant status.

(2) Whose work is being performed?

This inquiry focuses on whether Skipper was performing A&M’s or

Helix’s work. Skipper argues that there is a genuine dispute as to material

fact regarding whose work was being performed. He argues that he was only

incidentally performing A&M’s work and instead performing Helix’s work,

Case: 20-30278

Document: 00515567469

Page: 6

Date Filed: 09/16/2020

whose business as a temporary labor company is the hiring out of personnel.

Skipper’s argument is meritless. The yard superintendent testified that

Skipper repaired and cleaned the barge for A&M. In other words, Skipper

performed A&M’s work. To that end, Skipper’s reliance on cases where a

contracted laborer was performing ancillary work is misplaced. In this case,

it is clear that Helix hired out its employees to do A&M’s work. Therefore,

we find that this factor favors borrowed servant status.

(3) Was there an agreement or understanding between Helix and

A&M?

Skipper argues that there is a genuine dispute as to material fact

regarding this factor in light of the independent contractor clause in the

agreement between Helix and A&M. Specifically, the agreement provides

that Skipper “shall at all times be deemed an independent contractor and the

relationship of these parties to [A&M] shall not at any time constitute any

relationship other than that of independent contractor.” First, no one

disputes the existence of this clause, and second, as discussed above, we have

previously found borrowed servant status despite the presence of this type of

clause. See Gaudet, 562 F.2d at 358. Although this clause weighs in Skipper’s

favor, there is no genuine dispute as to any material fact regarding this factor.

Therefore, this factor does not compel a denial of summary judgment.

(4) Did Skipper acquiesce in the new work situation?

This factor focuses on whether the employee agreed to the work

arrangement. There is no evidence that Skipper took issue with working for

A&M, and in any event, he does not argue that there is a genuine dispute as

to any material fact regarding this factor. We find that this factor favors

borrowed servant status.

(5) Did Helix terminate its relationship with Skipper?

Case: 20-30278

Document: 00515567469

Page: 7

Date Filed: 09/16/2020

Skipper argues that this factor should have weighed against the

borrowed servant defense or have been considered as neutral because there

is no evidence that Helix terminated its relationship with him. Skipper

mischaracterizes the focus of this inquiry. Specifically, this inquiry focuses

on whether Skipper maintained contact with Helix and not whether his actual

employment relationship was severed. See Hotard v. Devon Energy Prod. Co.

L.P., 308 F. App’x 739, 742 (5th Cir. 2009) (citing Amoco Melancon v. Amoco

Prod. Co., 834 F.2d 1238, 1246 (5th Cir. 1988)). To that end, Skipper offers

no evidence to show that he was in communication with or supervised by

Helix employees. In fact, the evidence cuts against Skipper’s position given

his testimony and the yard superintendent’s testimony that there were no

Helix supervisors at the jobsite. Therefore, we find that this factor favors

borrowed servant status.

(6) Who furnished the tools and place for performance?

Skipper does not make arguments about this factor. In any case, the

majority of the tools were provided by A&M, and the place of performance

was A&M’s shipyard. We find that this factor favors borrowed servant status.

(7) Was the new employment over a considerable length of time?

There is no dispute that Skipper worked for A&M for six days.

Skipper argues that this factor should have weighed against the borrowed

servant defense or have been considered as neutral. The district court did, in

fact, consider this factor to be neutral. We agree with the district court.

Indeed, we have previously found that this factor is “significant only when

the [borrowing] employer employs the employee for a considerable length of

time,” but where an employee is injured early in the employment, the factor

is neutral. See Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 618 (5th

Cir. 1986). Therefore, we find this factor to be neutral.

(8) Who had the right to discharge Skipper?

Case: 20-30278

Document: 00515567469

Page: 8

Date Filed: 09/16/2020

This inquiry focuses not on which entity had the power to terminate

Skipper’s employment outright but simply whether A&M had the authority

to terminate Skipper’s services with A&M. See Capps, 784 F.2d at 618

(explaining that the proper focus of the inquiry is whether the borrowing

employer has the “right to terminate [the borrowed employee’s] services

with itself”). Skipper does not make arguments about this factor. In any case,

A&M had the right to discharge Skipper from the jobsite and request a new

worker. Therefore, we find that this factor favors borrowed servant status.

(9) Who had the obligation to pay the employee?

Skipper argues that there is a genuine dispute as to material fact

regarding this factor. He is incorrect. A&M paid Helix, which in turn paid

Skipper, in effect, out of the funds from A&M. When the funds used to pay

the employee are received from the entity the employee is contracted out to,

we have held that that entity, in effect, pays the employee. See id. Therefore,

we conclude that this factor weighs in favor of borrowed servant status.

Despite Skipper’s arguments to the contrary, there is no genuine

dispute as to any material fact, and the district could determine that A&M

was Skipper’s borrowing employer. Because seven of the nine borrowed

servant factors favor borrowed servant status, we conclude that Skipper was

a borrowed employee and A&M his borrowing employer. Therefore, A&M

and Helix were entitled to partial summary judgment.

III.

For the foregoing reasons, the decision of the district court is

AFFIRMED.

Case 2:18-cv-06164-SSV-KWR Document 63 Filed 04/01/20 Page 1 of 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WALTER SKIPPER

A&M DOCKSIDE REPAIR, INC.,

et al

CIVIL ACTION

NO. 18-6164

SECTION “R”(4)

JUDGE VANCE

MAG. JUDGE ROBY

: : : : : : : : : : : : : : : : :

FINAL JUDGMENT

IT IS HEREBY ORDERED all claims of Walter Skipper against A&M Dockside

Repair, Inc. are hereby dismissed, with prejudice, in accordance with the Order and Reasons

issued by this Court on January 2, 2020 (R.Doc. 60), with each party to bear their own costs; and

IT IS FURTHER ORDERED that the claims asserted against Helix Resources, LLC by

A&M Dockside Repair, Inc. are hereby dismissed, with prejudice, as of compromise, with each

party to bear their own costs.

1st day of ______________,

April

New Orleans, Louisiana this ______

2020.

_________________________________________

UNITED STATES DISTRICT JUDGE

Case:

20-30278

Document: 00515611452

Page:

1 10/22/20

Date Filed:

10/22/2020

Case

2:18-cv-06164-SSV-KWR

Document 69

Filed

Page

1 of 2

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

___________

September 16, 2020

No. 20-30278

Summary Calendar

___________

Lyle W. Cayce

Clerk

Walter Skipper,

Plaintiff—Appellant,

versus

A&M Dockside Repair, Incorporated,

Defendant-Third Party Plaintiff—Appellee,

versus

Helix Resources, L.L.C.,

Third Party Defendant—Appellee.

____________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:18-CV-6164

____________________________

Before King, Smith, and Wilson, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal and the briefs on

file.

Case:

20-30278

Document: 00515611452

Page:

2 10/22/20

Date Filed:

10/22/2020

Case

2:18-cv-06164-SSV-KWR

Document 69

Filed

Page

2 of 2

20-30278

IT IS ORDERED and ADJUDGED that the judgment of the

District Court is AFFIRMED.

IT IS FURTHER ORDERED that appellant pay to appellees the

costs on appeal to be taxed by the Clerk of this Court.

Certified as a true copy and issued

as the mandate on Oct 22, 2020

Attest:

Clerk, U.S. Court of Appeals, Fifth Circuit

FEDERAL RULES OF CIVIL PROCEDURE

Rule 8

(2) promptly file a supplemental statement if any required

information changes.

(As added Apr. 29, 2002, eff. Dec. 1, 2002; amended Apr. 30, 2007, eff.

Dec. 1, 2007.)

Rule 8. General Rules of Pleading

(a) CLAIM FOR RELIEF. A pleading that states a claim for relief

must contain:

(1) a short and plain statement of the grounds for the court’s

jurisdiction, unless the court already has jurisdiction and the

claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the

pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief

in the alternative or different types of relief.

(b) DEFENSES; ADMISSIONS AND DENIALS.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each

claim asserted against it; and

(B) admit or deny the allegations asserted against it by

an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly

respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good

faith to deny all the allegations of a pleading—including the

jurisdictional grounds—may do so by a general denial. A party

that does not intend to deny all the allegations must either

specifically deny designated allegations or generally deny all

except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in

good faith to deny only part of an allegation must admit the

part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks

knowledge or information sufficient to form a belief about the

truth of an allegation must so state, and the statement has

the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one

relating to the amount of damages—is admitted if a responsive

pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered

denied or avoided.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;

• arbitration and award;

• assumption of risk;

• contributory negligence;

• duress;

• estoppel;

• failure of consideration;

• fraud;

• illegality;

Rule 9

FEDERAL RULES OF CIVIL PROCEDURE

• injury by fellow servant;

• laches;

• license;

• payment;

• release;

• res judicata;

• statute of frauds;

• statute of limitations; and

• waiver.

(2) Mistaken Designation. If a party mistakenly designates a

defense as a counterclaim, or a counterclaim as a defense, the

court must, if justice requires, treat the pleading as though it

were correctly designated, and may impose terms for doing so.

(d) PLEADING TO BE CONCISE AND DIRECT; ALTERNATIVE STATEMENTS; INCONSISTENCY.

(1) In General. Each allegation must be simple, concise, and

direct. No technical form is required.

(2) Alternative Statements of a Claim or Defense. A party may

set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense

or in separate ones. If a party makes alternative statements,

the pleading is sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many

separate claims or defenses as it has, regardless of consistency.

(e) CONSTRUING PLEADINGS. Pleadings must be construed so as to

do justice.

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug.

1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 28, 2010, eff. Dec. 1, 2010.)

Rule 9. Pleading Special Matters

(a) CAPACITY OR AUTHORITY TO SUE; LEGAL EXISTENCE.

(1) In General. Except when required to show that the court

has jurisdiction, a pleading need not allege:

(A) a party’s capacity to sue or be sued;

(B) a party’s authority to sue or be sued in a representative capacity; or

(2) Raising Those Issues. To raise any of those issues, a party

must do so by a specific denial, which must state any supporting facts that are peculiarly within the party’s knowledge.

(b) FRAUD OR MISTAKE; CONDITIONS OF MIND. In alleging fraud or

mistake, a party must state with particularity the circumstances

constituting fraud or mistake. Malice, intent, knowledge, and

other conditions of a person’s mind may be alleged generally.

suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition

precedent has occurred or been performed, a party must do so with

particularity.

(d) OFFICIAL DOCUMENT OR ACT. In pleading an official document

or official act, it suffices to allege that the document was legally

issued or the act legally done.

FEDERAL RULES OF CIVIL PROCEDURE

Rule 15

(5) Third-Party Defendant’s Claim Against a Nonparty. A thirdparty defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for

all or part of any claim against it.

(6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint may

be in rem. In that event, a reference in this rule to the ‘‘summons’’ includes the warrant of arrest, and a reference to the

defendant or third-party plaintiff includes, when appropriate,

a person who asserts a right under Supplemental Rule

C(6)(a)(i) in the property arrested.

(b) WHEN A PLAINTIFF MAY BRING IN A THIRD PARTY. When a

claim is asserted against a plaintiff, the plaintiff may bring in a

third party if this rule would allow a defendant to do so.

(1) Scope of Impleader. If a plaintiff asserts an admiralty or

maritime claim under Rule 9(h), the defendant or a person who

asserts a right under Supplemental Rule C(6)(a)(i) may, as a

third-party plaintiff, bring in a third-party defendant who

may be wholly or partly liable—either to the plaintiff or to

the third-party plaintiff—for remedy over, contribution, or

otherwise on account of the same transaction, occurrence, or

series of transactions or occurrences.

(2) Defending Against a Demand for Judgment for the Plaintiff.

The third-party plaintiff may demand judgment in the plaintiff’s favor against the third-party defendant. In that event,

the third-party defendant must defend under Rule 12 against

the plaintiff’s claim as well as the third-party plaintiff’s

claim; and the action proceeds as if the plaintiff had sued both

the third-party defendant and the third-party plaintiff.

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July

1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987;

Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr.

30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rule 15. Amended and Supplemental Pleadings

(a) AMENDMENTS BEFORE TRIAL.

(1) Amending as a Matter of Course. A party may amend its

pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading

is required, 21 days after service of a responsive pleading

or 21 days after service of a motion under Rule 12(b), (e),

or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend

its pleading only with the opposing party’s written consent or

the court’s leave. The court should freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any

required response to an amended pleading must be made within the time remaining to respond to the original pleading or

within 14 days after service of the amended pleading, whichever is later.

Rule 15

FEDERAL RULES OF CIVIL PROCEDURE

(b) AMENDMENTS DURING AND AFTER TRIAL.

(1) Based on an Objection at Trial. If, at trial, a party objects

that evidence is not within the issues raised in the pleadings,

the court may permit the pleadings to be amended. The court

should freely permit an amendment when doing so will aid in

presenting the merits and the objecting party fails to satisfy

the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.

(2) For Issues Tried by Consent. When an issue not raised by

the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—

to amend the pleadings to conform them to the evidence and

to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.

(1) When an Amendment Relates Back. An amendment to a

pleading relates back to the date of the original pleading

when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading; or

the party against whom a claim is asserted, if Rule

15(c)(1)(B) is satisfied and if, within the period provided by

Rule 4(m) for serving the summons and complaint, the

party to be brought in by amendment:

(i) received such notice of the action that it will not

be prejudiced in defending on the merits; and

(ii) knew or should have known that the action

would have been brought against it, but for a mistake

concerning the proper party’s identity.

(2) Notice to the United States. When the United States or a

United States officer or agency is added as a defendant by

amendment, the notice requirements of Rule 15(c)(1)(C)(i) and

(ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United

States attorney’s designee, to the Attorney General of the

United States, or to the officer or agency.

(d) SUPPLEMENTAL PLEADINGS. On motion and reasonable notice,

the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event

that happened after the date of the pleading to be supplemented.

The court may permit supplementation even though the original

pleading is defective in stating a claim or defense. The court may

order that the opposing party plead to the supplemental pleading

within a specified time.

(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July

1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991;

Pub. L. 102–198, § 11(a), Dec. 9, 1991, 105 Stat. 1626; Apr. 22, 1993, eff.

Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec.

1, 2009.)

FEDERAL RULES OF CIVIL PROCEDURE

Rule 16

Rule 16. Pretrial Conferences; Scheduling; Management

(a) PURPOSES OF A PRETRIAL CONFERENCE. In any action, the

court may order the attorneys and any unrepresented parties to

appear for one or more pretrial conferences for such purposes as:

(1) expediting disposition of the action;

(2) establishing early and continuing control so that the case

will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough

preparation; and

(5) facilitating settlement.

(b) SCHEDULING.

(1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge—or a magistrate judge

when authorized by local rule—must issue a scheduling order:

(A) after receiving the parties’ report under Rule 26(f); or

(B) after consulting with the parties’ attorneys and any

unrepresented parties at a scheduling conference.

(2) Time to Issue. The judge must issue the scheduling order

as soon as practicable, but unless the judge finds good cause

for delay, the judge must issue it within the earlier of 90 days

after any defendant has been served with the complaint or 60

days after any defendant has appeared.

(3) Contents of the Order.

(A) Required Contents. The scheduling order must limit

the time to join other parties, amend the pleadings, complete discovery, and file motions.

(B) Permitted Contents. The scheduling order may:

(i) modify the timing of disclosures under Rules 26(a)

and 26(e)(1);

(ii) modify the extent of discovery;

(iii) provide for disclosure, discovery, or preservation

of electronically stored information;

(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trialpreparation material after information is produced, including agreements reached under Federal Rule of Evidence 502;

(v) direct that before moving for an order relating to

discovery, the movant must request a conference with

the court;

(vi) set dates for pretrial conferences and for trial;

and

(vii) include other appropriate matters.

(4) Modifying a Schedule. A schedule may be modified only for

good cause and with the judge’s consent.

CONFERENCE.

(1) Attendance. A represented party must authorize at least

one of its attorneys to make stipulations and admissions

about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may

require that a party or its representative be present or reasonably available by other means to consider possible settlement.

Rule 16

FEDERAL RULES OF CIVIL PROCEDURE

(2) Matters for Consideration. At any pretrial conference, the

court may consider and take appropriate action on the following matters:

(A) formulating and simplifying the issues, and eliminating frivolous claims or defenses;

(B) amending the pleadings if necessary or desirable;

and documents to avoid unnecessary proof, and ruling in

advance on the admissibility of evidence;

(D) avoiding unnecessary proof and cumulative evidence,

and limiting the use of testimony under Federal Rule of

Evidence 702;

(E) determining the appropriateness and timing of summary adjudication under Rule 56;

(F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and

Rules 29 through 37;

(G) identifying witnesses and documents, scheduling the

filing and exchange of any pretrial briefs, and setting

dates for further conferences and for trial;

(H) referring matters to a magistrate judge or a master;

(I) settling the case and using special procedures to assist in resolving the dispute when authorized by statute or

local rule;

(J) determining the form and content of the pretrial

order;

(K) disposing of pending motions;

(L) adopting special procedures for managing potentially

difficult or protracted actions that may involve complex

issues, multiple parties, difficult legal questions, or unusual proof problems;

(M) ordering a separate trial under Rule 42(b) of a claim,

counterclaim, crossclaim, third-party claim, or particular

issue;

(N) ordering the presentation of evidence early in the

trial on a manageable issue that might, on the evidence,

be the basis for a judgment as a matter of law under Rule

50(a) or a judgment on partial findings under Rule 52(c);

(O) establishing a reasonable limit on the time allowed

to present evidence; and

(P) facilitating in other ways the just, speedy, and inexpensive disposition of the action.

(d) PRETRIAL ORDERS. After any conference under this rule, the

court should issue an order reciting the action taken. This order

controls the course of the action unless the court modifies it.

(e) FINAL PRETRIAL CONFERENCE AND ORDERS. The court may

hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference

must be held as close to the start of trial as is reasonable, and

must be attended by at least one attorney who will conduct the

trial for each party and by any unrepresented party. The court

may modify the order issued after a final pretrial conference only

to prevent manifest injustice.

FEDERAL RULES OF CIVIL PROCEDURE

Rule 17

(f) SANCTIONS.

(1) In General. On motion or on its own, the court may issue

any just orders, including those authorized by Rule

37(b)(2)(A)(ii)–(vii), if a party or its attorney:

(A) fails to appear at a scheduling or other pretrial conference;

(B) is substantially unprepared to participate—or does

not participate in good faith—in the conference; or

(2) Imposing Fees and Costs. Instead of or in addition to any

other sanction, the court must order the party, its attorney,

or both to pay the reasonable expenses—including attorney’s

fees—incurred because of any noncompliance with this rule,

unless the noncompliance was substantially justified or other

circumstances make an award of expenses unjust.

(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug.

1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 12, 2006, eff. Dec. 1, 2006;

Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 29, 2015, eff. Dec. 1, 2015.)

TITLE IV. PARTIES

Rule 17. Plaintiff and Defendant; Capacity; Public Officers

(a) REAL PARTY IN INTEREST.

(1) Designation in General. An action must be prosecuted in

the name of the real party in interest. The following may sue

in their own names without joining the person for whose benefit the action is brought:

(A) an executor;

(B) an administrator;

(D) a bailee;

(E) a trustee of an express trust;

(F) a party with whom or in whose name a contract has

been made for another’s benefit; and

(G) a party authorized by statute.

(2) Action in the Name of the United States for Another’s Use or

Benefit. When a federal statute so provides, an action for another’s use or benefit must be brought in the name of the

United States.

(3) Joinder of the Real Party in Interest. The court may not

dismiss an action for failure to prosecute in the name of the

real party in interest until, after an objection, a reasonable

time has been allowed for the real party in interest to ratify,

join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest.

(b) CAPACITY TO SUE OR BE SUED. Capacity to sue or be sued is

determined as follows:

(1) for an individual who is not acting in a representative capacity, by the law of the individual’s domicile;

(2) for a corporation, by the law under which it was organized; and

(3) for all other parties, by the law of the state where the

court is located, except that:

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WALTER SKIPPER

CIVIL ACTION

VERSUS

NUMBER:

18-6164

A&M DOCKSIDE REPAIR, INC.

and CASHMAN EQUIPMENT CORP.

SECTION:

MAGISTRATE: 4

AMENDED COMPLAINT

NOW INTO COURT, through undersigned counsel, comes the plaintiff, Walter Skipper,

a person of the full age of majority and resident of the State of Louisiana, and for his Amended

Complaint respectfully represents as follows:

Plaintiff realleges and reavers each and every allegation of his original Complaint as if set

out here in full. A copy of the Complaint is annexed hereto as Exhibit 1.

JURISDICTION

This Honorable Court has federal question jurisdiction pursuant to 28 U.S.C. 1331. In the

alternative, the Court has jurisdiction in admiralty pursuant to 28 U.S.C. 1333.

Made defendants herein are:

A&M DOCKSIDE REPAIR, INC., on information and belief, a corporation

authorized to do and doing business in the State of Louisiana and within the jurisdiction of this

Honorable Court.

CASHMAN EQUIPMENT CORP., on information and belief, a corporation

authorized to do and doing business in the State of Louisiana and within the jurisdiction of this

Honorable Court, and at all times pertinent hereto, the owner and/or operator of the barge on which

plaintiff was injured.

OSPREY LINE, LLC, on information and belief, a corporation authorized to do

and doing business in the State of Louisiana and within the jurisdiction of this Honorable Court,

and at all times pertinent hereto, the owner, owner pro hac vice, charterer and/or operator of the

barge on which plaintiff was injured.

WALTER SKIPPER was at all times mentioned herein an employee of a third party, Helix

Resources, LLC., and the defendants herein are liable unto him pursuant to 33 U.S.C. § 905(b),

and/or pursuant to the General Maritime Law of the United States of America, and under the law

and statutes of the State of Louisiana, for the following reasons:

On or about August 11, 2017, plaintiff was employed by a third party, Helix Resources,

LLC., as a blaster/painter. On that date, the plaintiff was performing his assigned duties aboard a

barge owned and/or operated by and/or chartered to the defendants, Cashman Equipment Corp.

and/or Osprey Line, LLC, which vessel was in the navigable waters of the United States and within

the jurisdiction of this Court in a shipyard owned and operated by the defendant, A&M Dockside

Repair, Inc. In the course of performing those duties, suddenly and without warning and due to

the negligence of the defendants and/or the vessel, plaintiff was caused to sustain severe and

disabling injuries when fell in an open manhole cover on the barge.

Plaintiff was in no manner negligent. On information and belief, plaintiff alleges that the

sole and proximate cause of the accident and his injuries, as described herein, was the negligence

and/or failure of the defendants, and their employees, servants and/or agents and/or the vessel, in

carrying out their obligations and duties, individually and concurrently, in the following respects:

Failure to provide plaintiff with a safe place in which to work;

Failure to warn the plaintiff;

Failure to warn plaintiff of the dangerous and unsafe conditions of the vessel;

Failure to exercise reasonable care in discovering and correcting any and all unsafe

conditions existing on the vessel;

Failure to have the vessel in such condition that the plaintiff could work with

reasonable safety;

Failure to provide plaintiff with the proper equipment and/or personnel to

accomplish his job in a reasonably safe manner;

Failure to provide competent and adequate supervisory authority;

Hiring untrained and unskilled employees;

Retaining employees found to be careless and/or unskilled;

10.

Breach of legally imposed duties of reasonable care owed by the defendant(s) to

the plaintiff;

11.

Other acts of negligence and conditions of unseaworthiness to be proven at the trial

of this case.

Solely by reason of the negligence of the defendants and of the vessel, and other acts and

inactions described herein, plaintiff sustained serious injuries including but not limited to the

following: possible ruptured disks and nerve damage, as well as possible injuries to his bones,

muscles and joints, organs and tissues among other component parts of his head, back, ribs, legs,

feet, and hands. As a result thereof, plaintiff has in the past and will in the future: require

medicines, medical care, medical treatment, have to expend moneys and incur obligations for

treatment and care, suffer agonizing aches, pains, and mental anguish, and be disabled from

performing his usual duties, occupations and avocations.

As a result of the aforesaid negligence, breach of duties, and other actions and inactions on

the part of the defendants herein, plaintiff has suffered injuries and damages for which defendants

are liable unto him, plus legal interest from the date of occurrence, a reasonable attorney’s fee, and

all costs of these proceedings.

WHEREFORE, plaintiff prays that this Amended Complaint be deemed good and

sufficient and, after service hereof and after due proceedings had and the expiration of all legal

delays herein, there be a judgment rendered in favor of the plaintiff, WALTER SKIPPER, and

against

defendants,

A&M

DOCKSIDE

REPAIR,

INC.,

CASHMAN

EQUIPMENT,

CORPORATION, and OSPREY LINE, LLC., as prayed for herein and in plaintiff’s original

Complaint, in damages in an amount to be determined at trial, together with interest from the date

of occurrence until paid, attorney’s fees, and all costs; and for any and all other relief which the

law and justice may provide.

RESPECTFULLY SUBMITTED:

__s/ David C. Whitmore__________________

LAWRENCE BLAKE JONES (7495)

DAVID C. WHITMORE (17864)

BLAKE JONES LAW FIRM, LLC

701 Poydras Street, Suite 4100

New Orleans, LA 70139

Telephone: (504) 525-4361

Facsimile: (504) 525-4380

Attorneys for Plaintiff, Walter Skipper

CERTIFICATE OF SERVICE

I do hereby certify that on the 12th day of October, 2018, a copy of the above and foregoing

pleading was electronically filed with the Clerk of Court using the CM/ECF system which will

send a notice of electronic filing to all counsel of record that have elected e-notification by

operation of the court's electronic filing system. I further certify that, on the aforementioned date,

I also served a copy of the foregoing pleading upon all counsel of record who are non-CM/ECF

participants via facsimile transmission and/or via hand delivery and/or via the United States mail,

postage prepaid and properly addressed.

_____s/ David C. Whitmore_____________

Case 2:18-cv-06164-SSV-KWR Document 18 Filed 11/01/18 Page 1 of 3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WALTER SKIPPER

NO. 18-6164

VERSUS

SECTION: “R” (4)

A&M DOCKSIDE REPAIR, INC. AND

CASHMAN EQUIPMENT CORP.

HON. SARAH S. VANCE

MAG. KAREN WELLS ROBY

ANSWER TO AMENDED COMPLAINT

NOW INTO COURT, through undersigned counsel, comes Defendant, A&M Dockside

Repair, Inc. (“A&M”), and for answer to the Amended Complaint of plaintiff, Walter Skipper,

alleges and avers upon information and belief as follows:

FIRST DEFENSE

A&M re-alleges and re-avers all answers and all defenses asserted in response to

Plaintiff’s original Complaint.

SECOND DEFENSE

The allegations contained in Paragraph 1 of the Amended Complaint require no response

from A&M.

The allegations contained in Paragraph 2 of the Amended Complaint are legal

conclusions that require no response from A&M.

PD.24755643.1

Case 2:18-cv-06164-SSV-KWR Document 18 Filed 11/01/18 Page 2 of 3

Except to admit the allegations contained in Paragraph 3 of the Amended Complaint as

regards A&M, the remaining allegations contained in Paragraph 2 are denied for lack of

information or knowledge sufficient to justify a belief therein.

Except to admit that Plaintiff was an employee of Helix Resources, LLC, the remaining

allegations contained in Paragraph 4 of the Amended Complaint are denied.

Except to admit that Plaintiff was employed by Helix Resources, LLC as a blaster/painter

on August 11, 2017, the remaining allegations contained in Paragraph 5 of the Amended

Complaint are denied.

The allegations contained in sections (1) through (11) of Paragraph 6 of the Amended

Complaint are denied.

The allegations contained in Paragraph 7 of the Amended Complaint are denied.

The allegations contained in Paragraph 8 of the Amended Complaint are denied.

WHEREFORE, the premises considered, A&M prays that this, its Answer, be deemed

good and sufficient and that after due proceedings had, there be a judgment in its favor and

against Plaintiff, dismissing the Amended Complaint at Plaintiff’s costs, and for all general and

equitable relief.

PD.24755643.1

Case 2:18-cv-06164-SSV-KWR Document 18 Filed 11/01/18 Page 3 of 3

Respectfully submitted,

PHELPS DUNBAR LLP

BY:

/s/ Rachael F. Gaudet

Thomas Kent Morrison (Bar #25802)

Colin B. Cambre (Bar #31083)

Rachael F. Gaudet (Bar #35771)

Canal Place | 365 Canal Street, Suite 2000

New Orleans, Louisiana 70130-6534

Telephone: 504-566-1311

Telecopier: 504-568-9130

Email: morrisok@phelps.com

cambrec@phelps.com

rachael.gaudet@phelps.com

ATTORNEYS FOR A&M DOCKSIDE REPAIR,

INC.

CERTIFICATE OF SERVICE

I hereby certify that on the 1st day of November, 2018, I electronically filed the

foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of

electronic filing to all counsel of record.

/s/ Rachael F. Gaudet

PD.24755643.1

Case 2:18-cv-06164-SSV-KWR Document 30 Filed 02/13/19 Page 1 of 4

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WALTER SKIPPER

* NO. 18-6164, SECTION: “R” (4)

VERSUS

* JUDGE SARAH S. VANCE.

A&M DOCKSIDE REPAIR, INC. AND

CASHMAN EQUIPMENT CORP.

* MAG. KAREN WELLS ROBY

***************************************************

ANSWER TO ORIGINAL AND AMENDED COMPLAINTS

NOW INTO COURT, through undersigned counsel, comes defendant, Helix Resources,

LLC (“Helix”), who in answer to the allegations of plaintiff’s original and amended complaints,

respectfully states:

FIRST DEFENSE

The complaints fail to state a claim upon which relief can be granted.

SECOND DEFENSE

AND NOW, without waiving any defenses, denials, claims, assertions, answers or

allegations, Helix responds to the complaint of Walter Skipper as follows:

The allegations of paragraph 1 do not require a response from this defendant.

The allegations of paragraph 2 do not require a response from this defendant.

Case 2:18-cv-06164-SSV-KWR Document 30 Filed 02/13/19 Page 2 of 4

The allegations of paragraph 3 do not require a response from this defendant.

The allegations of paragraph 4 are denied.

The allegations of paragraph 5 are denied.

The allegations of paragraph 6 do not require a response from this defendant, but if one is

needed, then the allegations are denied.

The allegations of paragraph 7 are denied.

The allegations of the prayer are denied.

Helix Resources, LLC, adopts, affirms, pleads and incorporates herein by reference all

contents of the third party complaint filed by A&M Dockside Repair, Inc., along with all of the

affirmative defenses pled therein as if copied herein in extenso.

THIRD DEFENSE

AND NOW, without waiving any defenses, denials, claims, assertions, answers or

allegations, Helix responds to the amended complaint of Walter Skipper as follows:

The allegations of paragraph 1 are denied.

Case 2:18-cv-06164-SSV-KWR Document 30 Filed 02/13/19 Page 3 of 4

The allegations of paragraph 2 do not require a response from this defendant.

The allegations of paragraph 3 do not require a response from this defendant.

The allegations of paragraph 4 are denied.

The allegations of paragraph 5 are denied as written.

The allegations of paragraph 6 are denied.

The allegations of paragraph 7 are denied.

The allegations of paragraph 8 are denied.

The allegations of the prayer are denied.

10.

Helix Resources, LLC, adopts, affirms, pleads and incorporates herein by reference all

contents of the third party complaint filed by A&M Dockside Repair, Inc., along with all of the

affirmative defenses pled therein as if copied herein in extenso.

WHEREFORE, defendant, Helix Resources, LLC prays that its Answer be deemed good

and sufficient and that after all legal delays are had there be judgment herein in favor of Helix

Case 2:18-cv-06164-SSV-KWR Document 30 Filed 02/13/19 Page 4 of 4

and against plaintiff, dismissing plaintiff’s claims with prejudice and at his costs, and for all

general and equitable relief.

Respectfully submitted,

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of

February 2019, I electronically filed the

foregoing with the Clerk of Court by using

CM/ECF system which will send a notice of

electronic filing to all known counsel of

record.

/s/John E. Unsworth, III

JOHN E. UNSWORTH, III

/s/John E. Unsworth, III

JOHN E. UNSWORTH, III (LBRN 26738)

JOHNSON, MORDOCK, UNSWORTH & YOUNG

One Galleria Blvd. Suite 1500

Metairie, LA 70001

Direct Line: 504-846-4114

Facsimile: 866-649-3893

Email: John.Unsworth@cna.com

Attorneys for Helix Resources, LLC

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 1 of 11

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WALTER SKIPPER

* NO. 18-6164, SECTION: “R” (4)

VERSUS

* JUDGE SARAH S. VANCE.

A&M DOCKSIDE REPAIR, INC. AND

CASHMAN EQUIPMENT CORP.

* MAG. KAREN WELLS ROBY

***************************************************

ANSWER TO THIRD PARTY COMPLAINT

NOW INTO COURT, through undersigned counsel, comes Helix Resources, LLC

(Helix), who in answer to the allegations of A&M Dockside Repair, Inc.’s (“A&M”) Third Party

Complaint, respectfully states:

FIRST DEFENSE

The third party complaint fails to state a claim upon which relief can be granted.

SECOND DEFENSE

AND NOW, without waiving any defenses, denials, claims, assertions, answers or

allegations, Helix responds to the third party complaint of A&M as follows:

The allegations of paragraph 1 are admitted as to the status of Helix and denied as to

liability.

The allegations of paragraph 2 are denied for lack of sufficient information to justify a

belief therein.

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 2 of 11

The allegations of paragraph 3 are denied for lack of sufficient information to justify a

belief therein.

The allegations of paragraph 4 do not require a response from this defendant, but if one is

needed, then the allegations are denied.

The allegations of paragraph 5 are denied for lack of sufficient information to justify a

belief therein.

The allegations of paragraph 6 are denied as written as the complete indemnity provision

is not quoted and therefore inaccurate.

The allegations of paragraph 7 are denied.

The allegations of paragraph 8 are admitted as Walter Skipper was an employee of Helix.

Any allegations as to implication of liability are denied.

The allegations of paragraph 9 are denied as written.

10.

The allegations of paragraph 10 are denied.

11.

The allegations of paragraph 11 are denied as written.

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 3 of 11

12.

The allegations of the prayer are denied.

AND NOW, IN FURTHER ANSWERING, Helix hereby offers the following affirmative

defenses in response to all allegations of A&M’s third party complaint:

THIRD DEFENSE

Helix and A&M entered into a Service Agreement on September 6, 2016 (the

“Agreement”).

FOURTH DEFENSE

The Agreement defines “Contractor” as Helix and “Client” as A&M. The Agreement

contains the following indemnity provision:

6 (Second paragraph) Client shall indemnify, hold harmless and defend at its own

expense Contractor, Contractor’s parent, subsidiary and affiliated companies,

Contractor’s purchasers, and 2 officers, directors, employees, agents, contractors, insurers

and subcontractors of each (hereinafter collectively "Contractor Group") from against all

suits demands claims, fines, penalties, attorney's fees and actions of every type and

character by whomever brought, whenever occurring, suffered or incurred by Client,

Client’s parent subsidiary, and affiliated companies and the officers, directors,

employees, agents, contractors, insurers, and subcontractors of each (hereinafter

collectively "Client Group") without regard to the cause there of for any bodily injury

death or property damage or loss arising out of or resulting in any way from any

conditions or defects in the work, or from performance of the work even if same should

arise due to the concurrent negligence, strict liability or other legal fault of Contractor

Group or the unseaworthiness of any contractor owned or leased vessel excepting only

injury death or property damage or loss resulting solely from contractor's negligence and

without negligence or fault on the part of Client Group or any other party whomsoever.

FIFTH DEFENSE

Accordingly the Agreement requires A&M to “indemnify, hold harmless and defend”

Helix and its insurers for “all suits, demands, claims” that were “suffered or incurred” by Helix

employees.

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 4 of 11

SIXTH DEFENSE

The contract calls for A&M to defend Helix under the facts and circumstances of the

case.

SEVENTH DEFENSE

Helix is not the owner of the barge plaintiff was aboard when he was allegedly injured.

The owner of the barge is Cashman.

EIGHTH DEFENSE

In the event, and solely in the event, that liability is found to exist on the part of a person,

firm, or corporation for whom Helix is or may be responsible, all of which is at all times

specifically denied, Helix avers that Plaintiff was guilty of comparative fault constituting a

proximate cause of the alleged accident in question, which acts of comparative fault consist of

the following non-exclusive particulars:

a. Failing to keep a proper lookout for his own safety;

b. Failing to exercise reasonable and prudent care under the circumstances then existing;

c. Being inattentive to this physical surroundings;

d. Acting carelessly or recklessly under the circumstances;

e. Placing himself in a zone of danger;

f. Failing to take proper precautions for his own safety and/or well-being;

g. Failing to abide by safety rules, regulations and policies and/or procedures;

h. In general, in failing to do what he could have done and should have done to avoid

the incident; and

i. Other acts of negligence or fault that will be more fully shown at the trial of this

matter.

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 5 of 11

NINTH DEFENSE

Helix avers that the negligence of Plaintiff was a contributing or sole cause of the alleged

injuries, thus diminishing or barring Plaintiff’s recovery. Such negligence includes, but is not

limited to, failure to keep a proper watch, failure to exercise due care under the circumstances,

and all other negligent or wrongful acts or omissions that may be discovered or proven at trial in

this matter.

TENTH DEFENSE

Helix avers that if Plaintiff is entitled to recover from Helix, which right is expressly

denied, Plaintiff’s recovery is barred and/or reduced in proportion to the degrees or percentages

of fault attributable to Plaintiff and/or any other person or entity to whom or to which a

percentage of fault is attributed.

ELEVENTH DEFENSE

Helix avers that the alleged injuries, if any, were caused by acts or omissions or

conditions that are responsibilities of persons other than Helix and for whom Helix had no legal

responsibility or control and whose comparative fault is plead in bar, diminution, or mitigation of

any recovery by Plaintiff.

TWELFTH DEFENSE

Helix avers that the alleged injuries and damages, if any, were caused by superseding and

intervening acts and/or negligence and/or strict liability of parties over whom Helix had no

control and/or for whose actions Helix is not liable.

THIRTEENTH DEFENSE

Plaintiff’s demands are barred by failure to mitigate, minimize, or abate damages or by

his failure to provide Helix with adequate information about pre-existing medical conditions

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 6 of 11

FOURTEENTH DEFENSE

Helix avers that Plaintiff has not suffered any personal injuries as a result of the alleged

accident. Helix avers that, in the alternative, if Plaintiff has suffered personal injury damages

from the alleged accident, which Helix expressly denies, Plaintiff has fully recovered and is not

suffering ongoing damages.

FIFTEENTH DEFENSE

Helix avers that the injuries allegedly sustained by Plaintiff occurred as a result of preexisting or other medical conditions, causes, or injuries that are completely unrelated to Helix

and/or the alleged accident, and the existence of these pre-existing or other medical conditions,

causes, or injuries bars or diminishes the Plaintiff’s recovery sought.

SIXTEENTH DEFENSE

Helix avers that at all times relevant, Helix complied with all applicable laws, regulations

and standards.

SEVENTEENTH DEFENSE

Helix denies that it is liable to any extent as alleged in the First Amended Complaint, and

claim exoneration form all liability for all losses, damages and injuries incurred by Plaintiff as a

result of the allegations contained in the First Amended Complaint and for any other damages or

claims that exist or may arise, but have not been specifically pled.

EIGHTEENTH DEFENSE

Helix avers that Plaintiff has or may have received payment of medical expenses and/or

other benefits, including, but not limited to, under a policy or policies of health, accident and/or

hospitalization insurance, Medicare or Medicaid benefits and/or at a charity hospital or other

government hospital and/or Workers’ Compensation insurance, and has subrogated his rights and

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 7 of 11

claims to payment of said benefits and expenses to the person, form, corporation or entity issuing

said policy or benefits and therefore have no right of action against Helix for any of the amounts

so paid.

NINETEENTH DEFENSE

Helix specifically denies that the Plaintiff has a claim for punitive damages. Said

damages are unconstitutional and are prohibited under and violate the United States Constitution,

including but not limited to the provisions of the Eighth Amendment and Fourteenth Amendment

to and/or Article 1, Section 10 of the United States Constitution.

TWENTIETH DEFENSE

Helix claims a credit or set-off for all amounts previously paid to Plaintiff arising from in

any way the incident described in the Petition.

TWENTY-FIRST DEFENSE

Helix denies that Plaintiff is a Jones Act seaman. Plaintiff cannot satisfy the second

prong of the Chandris v. Latsis, 515 U.S. 347, test as Plaintiff cannot show that he has a

connection to a vessel in navigation or to an identifiable group of such vessels that is substantial

in terms of both its duration and nature. The evidence does not support a finding of Jones Act

seaman status.

TWENTY-SECOND DEFENSE

At all pertinent times hereto, upon information and belief, Helix did not have supervising

personnel on board at the time of the incident and relinquished control of Helix personnel to

others to supervise.

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 8 of 11

TWENTY-THIRD DEFENSE

Further in the alternative, defendants aver upon information and belief that there was no

condition or risk of unreasonable harm, that there was no risk that was reasonably foreseeable,

that defendants did not have actual or constructive notice of any risk or unreasonable condition

prior to the alleged occurrence, and that defendants exercised appropriate and reasonable care at

all times material and relevant.

TWENTY-FOURTH DEFENSE

There is an absence of evidence to suggest that the defendants owed or breached any duty

to plaintiff, or that this condition presented an unreasonable risk of harm to this repairman

plaintiff.

TWENTY-FIFTH DEFENSE

In this matter, the Celestine v. Union Oil Company of California, 94-C-1868 (La.

4/10/95) 652 So.2d 1299, 1300 factors that the court had to consider included, but were not

limited to "the social, moral, economic considerations, the degree of knowledge of the

repairman, the incentives or disincentives to the owner to repair the vice or defect, the

reasonableness of presuming that a particular repairman is cognizant of the particular risks, and

the ability of the repairman to minimize such risks..." 652 So.2d at 1304.26. This Honorable

Court should followed the Celestine analysis by considering (1) the plaintiff’s status as a

construction worker, and (2) whether the plaintiff knew or should have known of a particular

condition at a job site.

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 9 of 11

TWENTY-SIXTH DEFENSE

At all pertinent times, other defendants failed to supply the proper safety equipment to

plaintiff to start with on the job and other defendants were fully aware of putting their employees

in potentially unsafe conditions. As such, other defendants bear all responsibility.

TWENTY-SEVENTH DEFENSE

At all pertinent times hereto as a result of Mr. Skipper was on a mission for his employer

and performing employment related activities his exclusive remedy is pursuant to La.R.S.

23:1032, et. seq., i.e. worker’s compensation.

TWENTY-EIGHTH DEFENSE

At all pertinent times hereto, Helix was the employer of plaintiff, Skipper, who was

performing manual labor, pursuant to the La. Revised Statute 23:1061 and as such, plaintiff’s

exclusive remedy under the La. Revised Statute 23:1032 under the Workers’ Compensation Act

has no right to seek tort remedies from Helix, nor any other party to attempt to pass through

alleged fault to Helix as no Helix employees or supervisors were present at the time of the

incident and Helix relinquished control, supervision, and direction to A & M.

TWENTY-NINTH DEFENSE

Helix avers that complainant’s sole remedy against it is for compensation benefits under

Louisiana workers’ Compensation Act or, alternatively, under the Longshoremen’s and Harbor

Workers’ Compensation Act.

THIRTIETH DEFENSE

Helix avers that any injuries, damages or disabilities of complainant as alleged herein are

a result of physical or mental conditions that pre-existed the incident made the basis of this

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 10 of 11

lawsuit and were incurred in the normal progressive of those pre-existing conditions, or were due

to causes or conditions not related to the accident made the basis of this lawsuit.

THIRTY-FIRST DEFENSE

Third party defendant Helix would show that if complainant was injured, which is

specifically denied, such injury was caused by equipment and/or occurred in an area over which

this defendant had no control or authority.

THIRTY-SECOND DEFENSE

That this Honorable Court lacks subject matter jurisdiction as an exclusive remedy is in

workers’ compensation.

THIRTY-THIRD DEFENSE

Helix reserves the right to raise all affirmative defenses that may be revealed as a result

of discovery.

THIRTY-FOURTH DEFENSE

Answering Defendant had neither actual nor constructive notice of any alleged defect in

the premises.

THIRTY-FIFTH DEFENSE

Answering Defendant specifically contends that it had no duty to provide plaintiff with a

seaworthy vessel, and/or that such vessel was seaworthy in all manners and/or that Answering

Defendant provided plaintiff with an unseaworthy vessel.

THIRTY-SIXTH DEFENSE

In the further alternative, Answering Defendant specifically alleges and avers that any

damages allegedly sustained by the plaintiff were due to a fortuitous event, an Act of God, or

force majeure or other circumstances beyond Answering Defendant’s control or the

responsibility of Answering Defendant and were not proximately caused by any acts or

Case 2:18-cv-06164-SSV-KWR Document 29 Filed 02/13/19 Page 11 of 11

omissions on the part of Answering Defendant or any other person, party or entity for whom it

would be responsible.

WHEREFORE, Helix Resources, LLC, prays that this answer be deemed good and

sufficient, and that all delays and due proceedings had there be judgment rendered herein in

favor of Helix Resources, LLC, and against plaintiff in cross-claim, A&M Dockside Repair, Inc.,

dismissing its suit at its cost, and for all general and equitable relief.

Respectfully submitted,

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of

February 2019, I electronically filed the

foregoing with the Clerk of Court by using

CM/ECF system which will send a notice of

electronic filing to all known counsel of

record.

/s/John E. Unsworth, III

JOHN E. UNSWORTH, III

/s/John E. Unsworth, III

JOHN E. UNSWORTH, III (LBRN 26738)

JOHNSON, MORDOCK, UNSWORTH & YOUNG

One Galleria Blvd. Suite 1500

Metairie, LA 70001

Direct Line: 504-846-4114

Facsimile: 866-649-3893

Email: John.Unsworth@cna.com

Attorneys for Helix Resources, LLC

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.