# Opposition Brief — Perron v. Bell Maintenance & Fabricators, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 913

## Text

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No. 92-971 OFFICE OF THE CLERK

In The

Supreme Court of the United States
October Term, 1992 ae
¢

WINSTON J. PERRON,

Petitioner,
versus

BELL MAINTENANCE AND FABRICATORS, INC.,
Respondent.

S

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit

¢

BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

*

James R. SuTTERFIELD
James R. Hoimes
HOFFMAN, SUTTERFIELD, ENSENAT
& BANKSTON
650 Poydras Street
Suite 2100
New Orleans, Louisiana 70130
(504) 523-1385
Attorneys for Bell Maintenance
and Fabricators, Inc.

QUESTIONS PRESENTED FOR REVIEW

Bell Maintenance and Fabricators, Inc. submits that
the only issues presented for review are whether:

The district court properly dismissed Respondent
because Respondent’s employee, Lee, was a co-employee
of Perron and immune under 33 U.S.C. §933(i);

The district court properly dismissed Respondent
because Gulf had taken full authority, responsibility and
liability for Lee’s negligence, if any.

ii

LIST OF ALL PARTIES

The undersigned counsel of record certifies that the
following list of all parties and their counsel.

Winston J. Perron, Petitioner
and
Donald G. Cave,
Cave & McKay
Counsel for plaintiff/Petitioner, Winston J. Per-
ron

United States Fire Insurance Company, inter-
venor

and
John H. Hughes and
Allen, Gooch, Bourgeois, Breaux, Robison and
Theunissen
Counsel for intervenor, United States Fire Insur-
ance Company

Bell Maintenance and Fabricators, Inc., Respon-
dent

and
James R. Sutterfield and James R. Holmes and
Hoffman, Sutterfield, Ensenat & Bankston,
APLC
Counsel for Bell Maintenance and Fabricators,
Inc., Respondents

iii

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED FOR REVIEW........--- i
LIST OF ALL PARTIES.........----eeeeceeeceeees ii
TABLE OF AUTHORITIES........-----++eeeeerreee Vv
CITATIONS TO OPINIONS BELOW........----+->- 1
JURISDICTION ........-scescecereesceccecesesecees 1
CONCISE STATEMENT OF THE CASE ......------ 2
1. COURSE OF PROCEEDINGS AND DISPOSI-
TION IN COURTS BELOW ......------++++++55 2
Il. STATEMENT OF FACTS......-----+-+22ss000: 4
SUMMARY OF ARGUMENT......-------++5s550575 4
BRTRIIET cece cc ccesscsnsedcnsesevecsescnenns 6
cede sandhaneeendnsanensenesses 6

THERE IS NO REASON TO GRANT A WRIT IN
THIS ISOLATED CASE........---+-eeeeeeerees 9

NO REASON TO RE-REVIEW THE MATTERS
ADDRESSED IN PETITIONER’S PRIOR APPLI-
CATION TO THIS COURT ......-----++++++++ 12

NO REASON TO CONFUSE THE VARIOUS
SECTIONS OF THE LHWCA TO CORRUPT THE
RNIN cc caccccvsdvetsesessacacsseserssosses 13

THE LOWER COURTS PROPERLY DISMISSED
BELL BECAUSE BELL’S EMPLOYEE, LEE, IS A
CO-EMPLOYEE OF PERRON AND IMMUNE
UNDER 33 U.S.C. §933(i)......2.0eeeee cece eee: 14

iv

TABLE OF CONTENTS - Continued
Page

THE LOWER COURTS WERE EQUITABLY COR-
RECT BECAUSE GULF HAD TAKEN FULL
AUTHORITY, RESPONSIBILITY AND LIA- |
BILITY FOR LEE’S NEGLIGENCE, IF ANY.... 20

CONRCE IIE. og ivns nec kcccsct ne eee 26 |
pg, lt In, Seeieee ers errr ny 052 B-1 |

Vv

TABLE OF AUTHORITIES

Page

CasEs
Abate v. Hirdes, 9 La.App. 688, 121 So. 775.......... 24
American National Ins. Co. v. Denke, Tex.Com.App.,

OS GIGI OP obi a Cs Hear ea ey anes 24
American Savings Life Ins. Co. v. Riplinger, 249 Ky. 8,

eff Peer re terry tre iat 24
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..... 7
Bass v. Kansas City Journal Post, 347 Mo. 681, 148

TED SOR unin dics imes hedcenedanmanerenue es 24
Benoit v. Transco Exploration Co., 577 F.Supp. 304

COGAD.LG. TORRE: 0 065 0t0knbieoanekewemenesheas 16, 21
Bohanon v. James McClatchy Pub. Co., 16

CalLAmoDd 200, G0 Fae O00 6 oc sevccscssassercdans 24
Calder v. Crall, 726 F.2d 598 (9th Cir. 1984).......... 19
Capps v. N.L. Baroid-N.L. Industries, Inc., 784 F.2d

se es S| eee er 16, 18, 21
Carter Publications, Inc. v. Davis, Tex.Civ.App., 68

DIA COD enn sin anen ing venvadensheeah's sees 24
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)........... 7
Dellums v. Powell, 566 F.2d 216 (D.C. Cir. 1977)...... 24
Denton v. Yazoo and M.V.R. Company, 284 U.S. 305, __

S2 S.Ch. 261, FS Led. SOO CORR ov cess cvvtvees 23, 25

Ermert v. Hartford Ins. Co., 559 So.2d 467 (La. 1990) .... 21

Fitzgerald v. Compania Naviera La Monlinera, 394
FSupp. G02 CLD.LR. WIG) a. ssc sau cs vos s seas cues 18

vi

TABLE OF AUTHORITIES - Continued

Gall v. Detroit Journal, 191 Mich. 405, 158 N.W. 36;
gg Ee Peer ere err errr re fo ee 24

Gaudet v. Exxon, 562 F.2d 351 (5th Cir. 1977), cert. :
denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d
TTT eer ee re er ryt Pol 16, 21

Great American Indemnity Co. v. Fleniken, 134 F.2d
208 (5th Cir. 1943) reh. denied (1943), cert. denied
Se ROOF CUUEE 0k2 a ciockawhne She wbebereeadees 25

Hebron v. Union Oil Company, 634 F.2d 245 (5th Cir.
ES + his rel ones caddcecdnnen dens bees ae ee ee aoe 16, 21

Krueger v. Mammoth Mountain Ski Area, Inc., 873 -
Fe ee CO RG e ov ces icckardevossereekedas 24

Marquez v. LeBlanc, La.App., 143 So. 108 ............ 24

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Gates S7o UD SFR Cia sve scvevceavedicsaccunecs 7

National Cash Register Co. v. Rider, Tex.Com.App.
ck PP rrererrrr rT eee Perr arr re 24

Perron v. Gulf Oil Corp., C.A. 86-0016 “O” (W.D.
La. 1987), aff'd, 893 F.2d 344 (5th Cir. 1989), reh. ~
and reh. en banc denied (5th Cir. February 4,
1990), cert. denied, C.A. No. 89-1725, 110 S.Ct.
3273, 111 L.Ed.2d 782 (1990)

Perron v. Bell Maintenance, 970 F.2d 1409 (5th Cir.
1992), reh. and reh. en banc denied, 976 F.2d 732
Ce es SEDs ae ds han obs kde sa ween es eee 3, 19

Probst v. Southern Stevedoring Company, 379 F.2d
ee Get Gam. TOE Ds +o oo cckawesune awe ceeeeeeeeeeeee 18

Vii .

TABLE OF AUTHORITIES - Continued

Page
Rice v. Sioux City Memorial Park Cemetery, 349 U.S.
70, at 73-74, 75 S.Ct. 614, at 616 (1955) ........... 11
Robideaux v. Hebert, 118 La. 1089, 43 So. 887, 12
ig TRI 4 iwi b 6s Keine nd ach was whee CRRMO APN Kee 24
Ruiz v. Shell Oil Company, 413 F.2d 310 (5th Cir.
is. PEVEPETEETEY eee Petree tet ass 16, 17, 21
Sharp v. Elkins, 616 F.Supp. 1516 (W.D.La. 1985)..... 18
Skidmore v. Haggard, Mo.Sup., 110 S.W.2d 726 ....... 24
Standard Oil v. Anderson, 212 U.S. 215, 29 S.Ct. 252,
ee ee Ot. eeeeere seri r re 16, 21, 23, 25
Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189.......... y 4.5
Thille v. E. L. Farmer & Company, 1991 U.S. Dist.
Bei Gs git | eererrrr errr reer er 25
Tidewater Grain Co. v. S.S. Point Manatee, 614
PSapp. ZF (G.D.FO. TGE) . 2. cc vs ccevesssewssesces 24
Traywick v. Juhola, 922 F.2d 786; 1991 U.S. App.
8s 8) wt): Be ee. } rrr errr 19, 20

Trevino v. General Dynamics Corp., 865 F.2d 1474
(BE CCAR, FE io scr nin cwevnsenadtaciwess cbovnes 24

Tyson v. Litwin Corp., 826 F.2d 1255 (3rd Cir. 1987) .... 25

Urbeso v. Bryan, 1991 La. App. LEXIS 1939 (La.
App. 40h) Cir., June 27, 1991)...» . .scaese cece sees 21

Washington Metropolitan Area Transit Authority v.
ponmaem, 467 US. Fao CPR pans cc cceccccsvassces 12, 18

West v. Kerr-McGee Corporation, 765 F.2d 526 (5th
Ch -SN c aka knkcbespeavwer kines sxeune ewes 16, 18, 21

:
‘

viii
TABLE OF AUTHORITIES - Continued |
Page
STATUTES
Renee eam Date epee e 1
UAE ee 1
ie. ee 1
33 USL. Gee OF O08. .... 2 cence. pera rye passim
a aa 1

CITATIONS TO OPINIONS BELOW

Petitioner seeks review of The United States Court of
Appeals for the Fifth Circuit’s affirmance of the district
court rulings. See: Petitioner’s Appendix A-1 - A-20,
reported at 970 F.2d 1409 (5th Cir. 1992). Petitioner’s
Petition for Rehearing and Re-Hearing en banc was
denied on September 22, 1992. See: Petitioner’s Appendix
A-38 - A-40, reported at 976 F.2d 732 (5th Cir. 1992). The
district court’s rulings at issue are the district court’s
grant of summary judgment on January 24, 1990 (See:
Petitioner’s Appendix A-21 - A-27) and subsequent
denial of Petitioner’s Motion to Aiter or Amend the Judg-
ment on March 18, 1991. See: Petitioner’s Appendix A-28 -
A-37.

JURISDICTION

The district court had jurisdiction pursuant to the
Outer Continental Shelf Lands Act, 43 U.S.C. §1333.

The Appellate Court had jurisdiction pursuant to 28
U.S.C. §1291.

This Court has jurisdiction over the Petition for Writ
of Certiorari pursuant to 28 U.S.C. §1254. The Fifth Cir-
cuit denied Rehearing and Rehearing En Banc by order
entered September 22, 1992. The Petition was filed within
ninety days of entry of the lower court’s judgment, 28
U.S.C. §2101(c).

CONCISE STATEMENT OF THE CASE

I. COURSE OF PROCEEDINGS AND DISPOSITION
IN COURTS BELOW

On March 3, 1985, Winston J. Perron (“Perron”)
allegedly suffered injuries on a fixed platform owned by
Gulf Oil Corporation (“Gulf”).

Perron v. Gulf v. Bell

On January 3, 1986, Perron sued Gulf in the United
States District Court for the Western District of Louisiana,
Lafayette division C.A. 86-0016 “O.” Gulf filed a Third
Party Demand against Bell Maintenance and Fabricators,
Inc. (“Bell” or “Respondent”) on April 2, 1987. The dis-
trict court dismissed Gulf with prejudice because Perron
was a borrowed servant of Gulf.

The United States Court of Appeals for the Fifth
Circuit affirmed the district court in an unpublished deci-
sion on December 26, 1989. Perron v. Gulf Oil Corp., 893
F.2d 344 (Sth Cir. 1989). Perron’s Petition for Rehearing
and Re-Hearing en banc was denied on February 4, 1990.

The Supreme Court denied certiorari on June 28,
1990. C.A. No. 89-1725, 110 S.Ct. 3273, 111 L.Ed.2d 782
(1990).

Perron v. Bell

Perron sued Bell in the 25th Judicial District Court
for the Parish of Plaquemines on February 28, 1986 for
the claim based on the alleged negligence of Mr. Michael
Lee. Bell properly removed the suit on January 3, 1990 to

the United States District Court for the Eastern District of
Louisiana. U.S. Fire Insurance Company (“U.S. Fire”)
intervened to recover its Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. §§901, et seq. (“LHWCA”)
payments. On December 18, 1990, Bell moved for Sum-
mary Judgment because Bell is immune under the
LHWCA, 33 U.S.C §933(i), by virtue of Lee and Perron’s )
co-employee status, and because Gulf had full control
and responsibility for Lee’s actions. Perron filed a Mem-

orandum in Opposition, but submitted no affidavits,

offered no testimony, and contradicted none of the
uncontested facts. The district court granted summary

judgment in January 1990. (See: Petitioner’s Appendix?

A-21 - A-27). The district court denied Perron’s Motion to

Alter or Amend the Judgment on March 18, 1991. (See:

Petitioner’s Appendix A-28 - A-37).

The United States Court of Appeals for the Fifth ‘
Circuit affirmed the district court on August 21, 1992.
(See: Petitioner’s Appendix A-1 - A-20, reported at 970
F.2d 1409 (5th Cir. 1992)). Petition for Rehearing and Re-
Hearing en banc was denied on September 22, 1992 by
order stating that Rehearing was denied because no
member of the panel nor any Judge in regular active
service requested polling. (See: Petitioner’s Appendix
A-38 - A-40, reported at 976 F.2d 732 (5th Cir. 1992)).

1 For ease of reference, Petitioner’s Appendices will be
identified by pages A-1 through A-40. Respondent, Bell, has
identified its Appendices by pages B-1 through B-7.

Il. STATEMENT OF FACTS

Bell does not contest Petitioner’s Statement of Facts
as far as it goes. However, the statement is incomplete. It
is uncontested that Gulf had the sole and exclusive con-
trol and direction over Lee and had full authority to
discharge Lee. (See: Statement of Uncontested Material
Facts, Respondent’s Appendix B-1 - B-3). Bell had no
authority, nor was it allowed to exercise any control, over
Lee. Gulf’s own employees describe Perron and Lee as
co-employees. (See: Affidavit of Mr. Jeyusi, Respondent’s
Appendix B-4 - B-7). These factual points were uncon-
tested by Perron and are conclusive to the issues.

¢

SUMMARY OF ARGUMENT
No Reason to Review

This matter is not appropriate for review by this
Court. There is no dispute among the Circuits. This mat-
ter involves the application of the Longshore & Harbor
Worker’s Compensation Act (LHWCA), 33 U.S.C. §§901 et
seq., including particularly §933(i). Although this statute
has been on the books for many years, Petitioner cannot
point to any major legal issue raised by this proceeding
having any impact outside of this single case. The only
case cited by Petitioner to conflict with the decisions
below is a decision from the very same court from which
Petitioner seeks relief, the Fifth Circuit; the same Court
which affirmed, without dissent, the district court’s opin-
ion and which denied rehearing because none of the
active judges felt that the court should be polled. This

'
a

5

decision is consistent with existing jurisprudence and this
Court should not consider the matter further at this time.

No Reason to Re-Review

Petitioner also seeks to re-review the issue of the
borrowed servant defense previously raised in the related
litigation in which this Court has already denied cer-
tiorari. No purpose can be served by seeking a second
effort to reconsider this matter previously refused by this
Court.

No Reason to Confuse

Petitioner seeks to confuse two separate and dis-
tinctly worded sections of the LHWCA, §§905 and 933.
These sections are worded: differently and have been
amended by the U.S. Congress at different times. Peti-
tioner seeks to have the interpretations and substance of
regarding §905 imposed on §933, much like trying to
place a square peg in a round hole. Although Bell does
not suggest that any Court should ignore any section of
Congress’ enactments, Petitioner’s rough efforts to force
interpretation of one section on another are incorrect.

Lower Courts Were Legally Correct

The Fifth Circuit correctly affirmed the District
Court’s holding that, based on the uncontested facts, Gulf
exercised the sole and exclusive control over Lee and
Perron who acted as Gulf employees. The comprehensive
legislation governing injuries on the Outer Continental
Shelf, the LHWCA, precludes tort actions based on the

fault of other workers in the same employ in favor of the
certitude of compensation payments to the injured person
without regard to fault. The district court recognized the
co-employee defense and rightly dismissed the claim
based on co-employee fault.

Lower Courts Were Equitably Correct

The district court properly recognized that an
employer who has no actual control over, or right to
control, an employee because the control was taken by
another employer has no liability for that employee’s
acts. The liability for the acts of an employee arise from
the right of actual or authorized control of an employee.
Without that right, there is no liability. In this case, it is
undisputed that all right to control Lee was taken from

Bell by Gulf. The court properly held that the liabilities —

were also taken from Bell.

ARGUMENT
FACTS

Perron, Gulf’s borrowed servant, seeks damages for

injuries allegedly suffered in a slip and fall accident on_

March 3, 1985 on Gulf’s production platform. Perron
alleged that his injuries were caused by the Respondent’s
negligence. The undisputed evidence reveais that Michael
Lee is Respondent’s only connection with the allegations.

Bell filed a Statement of Uncontested Material Facts
(Respondent’s Appendix B-1 - B-3) in support of its

Motion for Summary Judgment as required by the Uni-
form Louisiana Local Rules, ULLR 2.09, together with an
affidavit of M.K. Jeyusi, the Gulf supervisor of Lee
(Respondent’s Appendix B-4 - B-7), and deposition
excerpts from deposition of James B. Ronquillo. Perron
effectively conceded the accuracy of the facts submitted
by failing to contest them as required under ULLR 2.10E
and by Supreme Court precedents. Celotex Corp. v. Catrett,
477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477
U.S. 242 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574 (1986).

Petitioner apparently has now conceded the accuracy
of the facts as set forth by Respondent and used by both
the district and appellate courts below. Based on the
uncontested facts, Gulf exercised all control and direction
over Lee. The Uncontested Material Facts provided that

10. All control and direction over Bell Mainte-

nance employees such as Lee was exercised
by Gulf.

(Respondent’s Appendix B-2, §10).

Respondent did not, nor was it allowed to, exercise any
control over its employees in the course of their work for
Gulf. Gulf provided all training to Lee, the only Respon-
dent employee on the platform, regarding proper safety
procedure and responsibilities as gauger and/or lease
operator. Lee and Perron were in Gulf’s employ, doing
Gulf’s work on Gulf’s platform with Gulf’s tools under
Gulf’s exclusive direction and control. Perron has previ-
ously been judicially recognized as a borrowed servant of
Gulf. Both Perron and Lee were doing the same work for
Gulf.

M.K. Jeyusi’s uncontested testimony (Respondent’s
Appendix B-4) is that he was in charge of the Eugene
Island 238 Field in March 1985. He controlled all men
working in the Eugene Island 238 Field including Lee and
Perron. Based on the uncontested facts, including Jeyusi’s
affidavit, Gulf used Lee, Perron and other Gulf
employees interchangeably as co-employees.

I could use these operators and Gulf lease oper-
ators interchangeably as co-employees to per-
form services on the various platforms.

(Respondent’s Appendix B-7).

Based on the uncontested facts, Gulf required Lee to
undergo special Gulf training at the Gulf training facility
in New Orleans, Louisiana. Gulf provided all instructions
to Lee of his responsibilities and manner of working as a
gauger or lease operator on the Gulf platform. Lee was
required to attend all Gulf safety meetings.

Gulf had authority to discharge Lee. Neither Lee nor
Respondent had any control or veto power over this
authority. Furthermore in his capacity as Senior Produc-
tion Supervisor, Mr. Jeyusi had sole responsibility and
authority to approve the continuation of or the return to
employment of Lee. All authority over Lee was held by
Gulf. It is undisputed that at no time could or did
Respondent exercise any control over any of the work
activities of Lee. All control and direction over Lee was
exercised by Gulf.

Gulf used Lee as its employee or servant and bears
the legal responsibility for Lee’s fault, if any. Gulf used
Petitioner, Perron, in the same capacity. As both Lee and

Perron were employees of Gulf, Perron has no claim
against Lee. 33 U.S.C. §933(i).

THERE IS NO REASON TO GRANT A WRIT
IN THIS ISOLATED CASE

This matter is not appropriate for review by this
Court. There is no dispute among the Circuits. This mat-
ter involves the application of the Longshore & Harbor
Worker’s Compensation Act (LHWCA), 33 U.S.C. §§901 et
seq., including particularly §933(i). Although this statute
has been on the books for many years, Petitioner cannot
point to major legal issue raised by this proceeding hav-
ing any impact outside of this single case. The only case
cited by Petitioner represented to conflict with the deci-
sions below is a decision from the very same court from
which Petitioner seeks relief, the Fifth Circuit; the same
Court which affirmed, without dissent, the district court’s
opinion and which denied rehearing because none of the
active judges felt that the court should be polled. This
decision is consistent with existing jurisprudence and this
Court should not consider the matter further at this time.

Respondent submits that there is no reason to grant
Perron’s Petition for Writ of Certiorari. The consider-
ations governing review on a Writ of Certiorari are set
forth in The Rules of the Supreme Court of the United
States, Rule 10. The considerations set forth in Rule 10 do
not justify grant of Writ of Certiorari in this case. This
matter has been reviewed twice by the federal district
court judge and twice by the Fifth Circuit panel. Unani-
mously and consistently, the judges have found the deci-
sion proper. There is no dispute amongst the judges

10

which handled this matter as to the correct application of
the law to the facts of this case.

No state court decisions are implicated in this matter
as is conceded on the face of the Petition for Writ of
Certiorari.

There are no conflicts between any courts, whether
federal or state, in applying the law. As is pointed out
below, this is an area of little litigation. Petitioner
attempts to find some implications in decisions on other
matters which might suggest that the lower courts, in this
case, might have been mistaken. However, neither Peti-
tioner, nor Respondent, nor the lower courts during the
four reviews, have suggested that there is any direct
conflict between this decision and any other final deci-
sion interpreting the same laws. There are no reported
decisions criticizing any of the lower courts’ decisions in
this matter.

Petitioner has not pointed to any, nor can he point to
any, special or important trend or developments in the
law implicated in this decision. There is simply no impor-
tant question of federal law which should be settled by
this Court at this time. This decision involves uncon-
tested facts supporting the factual underpinnings of the
lower courts’ decisions. The legal decision involves a
straight application of the LHWCA.

Supreme Court Rule 10 is a restatement of prior
Supreme Court Rule 19. This Court has explained the
importance of restricting review to cases involving “spe-
cial and important reasons” for granting Writ of Cer-
tiorari.

11

This rule, formulated 30 years ago, embodies the
criteria, developed ever since the Evearts Act of
1891, by which the court determines whether a
particular case merits consideration, with due
regard to the proper functioning of the limited
reviewing power to which this court is confined,
decisively restricted to the creation of the inter-
mediate courts of appeal and more largely con-
fined by the judiciary act of 1925... special and
important reasons imply a reach to a problem
beyond the academic or episodic.

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, at
73-74, 75 S.Ct. 614, at 616 (1955).

Petitioner’s claim is “episodic.” Neither Petitioner’s,
Respondent’s, nor the lower courts’ reviews reveal any
controlling jurisprudence on the particular issue notwith-
standing the fact that the statute was enacted in 1959. If
there is any misinterpretation, it is a solitary incident
which does not justify this court’s exercise of its discre-
tionary review. Further, this Court should allow develop-
ment of this area by the lower courts prior to exercising
review in order to develop and explore the ramifications
of this interpretation.

Petitioner’s request, and review of existing jurispru-
dence, reveal no conflict or pressing issue to justify fur-
ther review of this matter in which the lower courts have

unanimously agreed on the application of the law.

12

NO REASON TO RE-REVIEW THE MATTERS
ADDRESSED IN PETITIONER’S PRIOR
APPLICATION TO THIS COURT

Petitioner also seeks to re-review the issue of the
borrowed servant defense previously raised in the related
litigation in which this Court has already denied cer-
tiorari. No purpose can be served by seeking a second
effort to reconsider this matter previously refused by this
Court. Perron’s suit against Gulf in the United States
District Court for the Western District of Louisiana,
Lafayette division C.A. 86-0016 “O” was dismissed with
prejudice because Perron was a borrowed servant of Gulf.
The United States Court of Appeals for the Fifth Circuit
affirmed the district court in an unpublished decision on
December 26, 1989. Perron v. Gulf Oil Corp., 893 F.2d 344
(5th Cir. 1989), reh. and reh. en banc denied (5th Cir. Feb. 4,
1990). This Court denied certiorari on June 28, 1990. C.A.
No. 89-1725, 110 S.Ct. 3273, 111 L.Ed.2d 782 (1990).

Petitioner now seeks indirect review of this decision
by again arguing that Washington Metropolitan Area Transit
Authority v. Johnson, 467 U.S. 925 (1984) somehow con-
trols. This is the same argument pressed in Petitioner’s
1990 application to this Court. Section II of Petitioner’s
current brief is simply a resubmission of matters already
taken to finality in connection with this incident. In Per-
ron v. Gulf Oil Corp., C.A. No. 89-1725, 110 S.Ct. 3273, 111
L.Ed.2d 782 (1990), Petitioner’s Petition for Writ of Cer-
tiorari, Section II, raised the same argument and cited
WMATA for the same propositions as in Petitioner’s cur-
rent Petition. This issue of the application of WMATA has
now been judicially addressed nine times arising from

13

this single claim. No further review is necessary or
appropriate.

To suggest that Petitioner should now be allowed to
have multiple ‘bites at the apple’ is contrary to the intent
of finality of decisions and the intent of certiorari.

NO REASON TO CONFUSE THE VARIOUS
SECTIONS OF THE LHWCA TO CORRUPT
THE STATUTE

Petitioner seeks to confuse two separate and dis-
tinctly worded sections of the LHWCA, §§905 and 933.
These sections are worded differently and have been
amended by the U.S. Congress at different times. Perron
seeks to have the interpretations and substance of regard-.—
ing §905 imposed on §933, much like trying to place a
square peg in a round hole. Although Respondent does
not suggest that any Court should ignore any section of
Congress’ enactments, Petitioner’s rough efforts to force
interpretation of one section on another are incorrect.

Petitioner attempts to manipulate definitions of
terms found in §§904 - 905 to ccntrol to other terms found
in §933. Had Congress intended to use the same terms in
§933 as it used in §§904 - 905, Congress could easily have
done so. However, in an effort to provide more unifor-
mity and avoid the technicalities of specific contractual
terms, Congress, in §933, used the term “in the same
employ.” This characterization is broader and encom-
passes both Perron and Lee who were both employed by
Gulf to operate the platform. These two individuals were
two of a total of four who served as the full operations
crew for this platform’s round the clock operation. They

14

all had the same job - to keep this production platform
producing. These four men were all in the same employ.
These four men were all part of the employee family
intended to be viewed as one unit.

Petitioner’s effort to impose a quid pro quo whcre
none exists subverts Congress’ explicit intent to cover the
entire ‘employee family’ under the LHWCA. See: 1959
U.S.C.C.A.N. 2134, quoted in note 5 in the Fifth Circuit
decision below, Petitioner’s Appendix A-15 - A-16). In
fact, the only guid pro quo suggested by Congress is the
very protection afforded by the lower courts’ decisions in
this matter. Lee, being part of the ‘employee family,’ is
immunized from suit by his co-employees such as Peti-
tioner. The very purpose of §933 is served by the lower
courts’ rulings. Nothing in Petitioner’s arguments can
change the language or purpose of the statute.

THE LOWER COURTS PROPERLY DISMISSED
BELL BECAUSE BELL’S EMPLOYEE, LEE,
IS A CO-EMPLOYEE OF PERRON AND IMMUNE
UNDER 33 U.S.C. §933 (i)

The Fifth Circuit correctly affirmed the District
Court’s holding that, based on the uncontested facts, Gulf
exercised the sole and exclusive control over Lee and
Perron who acted as Gulf &mployees. The comprehensive
legislation governing injuries on the Outer Continental
Shelf, the LHWCA, precludes tort actions based on the
fault of other workers in the same employ in favor of the
certitude of compensation payments to the injured person
without regard to fault. The district court recognized the

15

co-employee defense and rightly dismissed the claim
based on co-employee fault.

33 U.S.C. §933(i) provides that an employee has no
rights beyond compensation when injured by another in
the same employ. Section 33(i) of the LHWCA states:

the right to compensation or benefits under this
Act shall be the exclusive remedy to an
employee when he is injured . . . by the negli-
gence or wrong of another person or persons in
the same employ:

In this section, the U.S. Congress clearly defined the
rights of an individual under the LHWCA. The statute
defines the rights of the injured party, and is not con-
trolled by the rights or obligations of any other party.
Simply put, when an injured party is entitled to compen-
sation, which Petitioner is, that person cannot sue for the
negligence of another in the same employ. The lower
courts correctly held that, since both Perron and Lee were
employees of Gulf working on the same platform, and
both were operating the platform, they were in the same
employ. Perron has no right, by statute, to sue for the
negligence or wrong of Lee.

It is uncontested that Lee is a borrowed employee of
Gulf. Petitioner has apparently dropped his suggestions
to the contrary. The status of Perron as an employee of
Gulf has been litigated all the way to the Supreme Court.
Perron v. Gulf Oil Corp., C.A. 86-0016 “O” (W.D. La. 1987),
aff'd. 893 F.2d 344 (5th Cir. 1989), reh. and reh. en banc
denied (Sth Cir. February 4, 1990), cert. denied, C.A. No.
89-1725, 110 S.Ct. 3273, 111 L.Ed.2d 782 (1990). Petitioner
has admitted that Lee is at least as much an employee of

16

Gulf as he is. Based on parallel facts which existed in
Perron’s own claim against Gulf, Lee is an employee of

Gulf.

The “borrowed employee” doctrine was initially rec-
ognized by the Supreme Court in Standard Oil v. Ander-
son, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909). This
holding has been cited with approval on a number of
occasions. Gaudet v. Exxon, 562 F.2d 351 (5th Cir. 1977),
cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414
(1978). Whether a relationship of borrowed servant exists
is a matter of law. Gaudet v. Exxon, 562 F.2d 351 (5th Cir.
1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d
414 (1978). The borrowed servant status can be evaluated
under the test of Ruiz v. Shell Oil Company, 413 F.2d 310
(5th Cir. 1969), see also: Capps v. N.L. Baroid-N.L. Industries,
Inc., 784 F.2d 615 (5th Cir. 1986); West v. Kerr-McGee
Corporation, 765 F.2d 526, 530 (5th Cir. 1985); Gaudet v.
Exxon, 562 F.2d at 355; Benoit v. Transco Exploration Co.,
577 F.Supp. 304 (W.D.La. 1983).

Under any of these tests, the district court properly
found that Lee was the borrowed servant of Gulf. A
cursory review of the factors spelled out in Ruiz v. Shell
Oil Company, 413 F.2d 310 (5th Cir. 1969) shows Gulf’s
employer status to Lee. The Fifth Circuit has considered
the question of “control” to be the central issue of the
borrowed employee status. Hebron v. Union Oil Company,
634 F.2d 245 (5th Cir. 1981). As evidenced by the affidavit
of M.E. Jeyusi (Respondent’s Appendix B-4 - B-7), Gulf
had absolute and complete control of Lee’s work.

At no time did Bell Maintenance exercise any

control over any of the work activities of Lee or
other Bell Maintenance hands while those

17

employees were in the Gulf field. All control
and direction over Bell Maintenance payroll
employees were exercised by Gulf... . At no
time did Bell Maintenance have any person in
the Eugene Island Field with authority.. All
authority in that field over Lee was executed by
me or other similarly situated payroll employees
of Gulf.

All testimony of Gulf’s control is the same. Gulf had,
and exercised, total control. Moreover, all parties under-
stood and agreed with Gulf that Gulf would control Lee
and that Lee would work as a Gulf employee. Lee was
performing Gulf’s work.

Throughout March 1985, Lee worked solely on
Gulf platforms. Lee performed Gulf’s work with
Gulf’s rules, regulations and policies.

(Respondent’s Appendix B-5)

Mike Lee worked exclusively on Gulf platforms
throughout March, 1985 and, in fact, from April
1983 through July 1986. Gulf provided all meals,
lodging, tools and transportation to Lee.

(Respondent’s Appendix B-2, 18)
Gulf had the right to fire Lee.
(Respondent’s Appendix B-2, {11).

An analysis of the Ruiz factors and the collateral effect of
the judgment rendered in the litigation commenced in
Western District of Louisiana show conclusively that Gulf
possessed such authoritative direction and control of
Respondent’s employee, Lee, that Lee was a borrowed
employee of Gulf.

18

Since both Lee and Perron were employees of Gulf,
Petitioner has no action. Petitioner’s claim is correctly
dismissed. Fitzgerald v. Compania Naviera La Monlinera,
394 F.Supp. 402 (E.D.La. 1974); Sharp v. Elkins, 616 F.Supp.
1516 (W.D.La. 1985). Perron is receiving full benefits
available by law under the LHWCA. Petitioner must
accept the restrictions of the LHWCA along with its bene-
fits. Both Perron and Lee were in the same employ, speci-
fically operating the Eugene Island 238 Platform at the
direction of Gulf. Both Perron and Lee were doing work
which Gulf’s employees could do. Just as Perron has been
deemed to have been in the employ of Gulf, so too is Lee
within the employ of Gulf and thus not subject to liability
for his negligence.

Petitioner suggests that Washington Metropolitan Area
Transit Authority v. Johnson, 467 U.S. 925 (1984) somehow
controls this case. As the Fifth Circuit pointed out in
Capps v. N.L. Baroid - N.L. Industries, Inc., 784 F.2d 615 (5th
Cir. 1986) and West v. Kerr-McGee Corp. 765 F.2d 526 (5th
Cir. 1985), the borrowed servant doctrine is not repudi-
ated by WMATA. Petitioner must be aware of this point as
Petitioner based his prior arguments to this Court in the
Western District proceedings arising out of this claim on
the dissent in West v. Kerr-McGee. This argument is no
more persuasive this time than it was on appeal below or
than it was to the district court. Quite simply, the argu-
ment addresses sections other than those argued in this
case and is inapplicable to the issues herein.

Petitioner had raised a new case in his Petition for
Writ not previously raised to the Fifth Circuit: Probst v.
Southern Stevedoring Company, 379 F.2d 763 (Sth Cir. 1967).

19

It is incredible to think that the Fifth Circuit’s decision in
Perron v. Bell Maintenance, 970 F.2d 1409 (5th Cir. 1992),
reh. and reh. en banc denied, 976 F.2d 732 (5th Cir. 1992)
should somehow be overruled by its prior decision in
Probst. This Court must assume that the Fifth Circuit
consistently applied its own rationales in reaching its
affirmance. Moreover, if Petitioner believes that there was
some inconsistency, Petitioner failed to raise it before the
proper court, the United States Court of Appeals for the
Fifth Circuit.

As the Fifth Circuit recognized, the more appropriate
decisions for this analysis are Calder v. Crall, 726 F.2d 598
(9th Cir. 1984) and Traywick v. Juhola, 922 F.2d 786; 1991
U.S. App. LEXIS 1189 (11th Cir. 1991). In Calder, Calder’s
suit was barred by the exclusivity provision cf the
LHWCA, 33 U.S.C. §933(i) because both Calder and Crall
were working at the same Air Force base, even though
they were employed by separate entities. In fact, Crall
was not even subject to the LHWCA. Nonetheless, the
Court looked to the practical reality to find that since
both Crall and Calder were working on the same base
and were working on the same project, they were “in the
same employ.” Both Lee and Perron were working on the
same platform and on the same project. They were “in the
same employ.”

In Traywick, Traywick was employed by the Fort
Rucker Golf Course, while Juhola was a civilian employee
of the Department of the Army. Traywick was not an
employee of the Department of the Army. The Eleventh
Circuit concluded by

20

Finding that the exclusivity provision of the
Longshoremen’s and Harbor Workers’ Compen-
sation Act (“LHWCA”), 33 U.S.C.A. §933(i)
(West 1986), bars Traywick’s action, we affirm.

(Traywick, 922 F.2d at 787)

Both the Ninth and Eleventh Circuits recognize that
“in the same employ” as used in 33 U.S.C. §933(i) is to be
construed in light of the realities of the work environ-
ment. In this case, both Perron and Lee were in fact
working “in the same employ” in operating the Gulf
platform under Gulf’s exclusive and extensive control.

In summary, Perron and Lee are “in the same
employ,” in the employ of Gulf servicing the Eugene
Island production platform. Petitioner’s rights are
described in the LHWCA as made applicable by the
Outer Continental Shelf Lands Act. Petitioner cannot pick
and choose from the provisions of the Act. As Perron and
Lee were in the same employ as intended by 33 U.S.C.
§933(i), Petitioner has no claim for Lee’s fault. The lower
courts are correct in dismissing this action.

THE LOWER COURTS WERE EQUITABLY CORRECT
BECAUSE GULF HAD TAKEN FULL AUTHORITY,
RESPONSIBILITY AND LIABILITY FOR
LEE’S NEGLIGENCE, IF ANY

The lower courts properly recognized that an
employer who has no actual control over, or right to
control, an employee because the control was taken by
another employer has no liability for that employee’s
acts. The liability for the acts of an employee arise from
the right of actual or authorized control of an employee.

21

Without that right, there is no liability. In this case, it is
undisputed that all right to control Lee was taken from
Bell by Gulf. The lower courts properly held that the
liabilities were also taken from Bell.

The lower court’s judgment should not be reviewed
because Gulf has exercised such control over Lee as its
borrowed servant that it has adopted all responsibility for
Lee’s fault. In this context, the “borrowed employee”
doctrine was defined by the Supreme Court in Standard
Oil v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480
(1909):

One may be in the general services of another,
and, nevertheless with respect to particular
work, may be transferred with his own consent
or acquiescence to the service of a third person,
so that he becomes a servant of that person with
all the legal consequences of the new relation-

This holding has been cited with approval and dis-
cussed on a number of occasions. Capps v. N.L. Baroid-N.L.
Industries, Inc., 784 F.2d 615 (5th Cir. 1986); West v. Kerr-
McGee Corporation, 765 F.2d 526, 530 (5th Cir. 1985);
Gaudet v. Exxon, 562 F.2d 351 (5th Cir. 1977), cert. denied,
436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978); Ruiz v.
Shell Oil Company, 413 F.2d 310 (5th Cir. 1969); Benoit v.
Transco Exploration Co., 577 FSupp. 304 (W.D.La. 1983).

The issue of control is central both under the
LHWCA and (although not directly pertinent) under Lou-
isiana law. Hebron v. Union Oil Company, 634 F.2d 245 (5th
Cir. 1981); Ermert v. Hartford Ins. Co., 559 So.2d 467 (La.
1990); Urbeso v. Bryan, 1991 La. App. LEXIS 1939 (La.

22

App. 4th Cir, June 27, 1991). The uncontroverted evidence

is that Gulf, and only Gulf, had control of Lee.

M.E. Jeyusi, Gulf’s Production supervisor, testified

that Gulf controlled Lee’s work.

“My duties included the supervision of all men
working in the Eugene Island 238 Field includ-
ing those employees who were the payroll
employees of Bell Maintenance, which group
included Michael Wayne Lee; .. . At the onset of
his work in the field, Lee, like all. Gulf lease
operators, was instructed on what he should do
on a routine basis while performing his platform
assignments. These instructions were provided
by me or other payroll employees of Gulf. At no
time did Bell Maintenance exercise any control
over any of the work activities of Lee or other
Bell Maintenance hands while those employees
were in the Gulf field. All control and direction
over Bell Maintenance payroll employees were
exercised by Gulf; . . . At no time did Bell
Maintenance have any person in the Eugene
Island Field with authority. All authority in that
field over Lee was executed by me or other
similarly situated payroll employees of Gulf.
Lee performed Gulf’s work with Gulf’s rules,
regulations and policies.”

(Respondent’s Appendix B-4 - B-7).

The Uncontested Material Facts upon which

action is based confirm Gulf’s absolute control:

13. On the day of the alleged incident, Mike
Lee was working for a Gulf mechanic, Mr. Her-
man Marshall.

15. Other than the direct supervision of Mike
Lee by Herman Marshall, Gulf exercised the

this

23

same control over Mike Lee as Gulf exercised
over Perron.

17. Mike Lee received instructions as to his
responsibility as gauger and/or lease operator
from Gulf.

18. Mr. Lee’s work was evaluated by and the
decision to retain him as an employee on the
platform was made by Gulf’s supervisor, Mr.
M.K. Jeyusi. Mike Lee worked exclusively on
Gulf platforms throughout March, 1985 and, in
fact, from April 1983 through July 1986. Gulf
provided all meals, lodging, tools and transpor-
tation to Lee.

710. All control and direction over Respondent
Maintenance employees such as Lee was exer-
cised by Gulf.

{11. Gulf had the authority to discharge Lee.
Lee’s responsibilities were essentially the same
as those of Gulf employees in the same position.
Respondent did not nor was it allowed to exer-
cise any control over its employee in the course
of their work for Gulf.

(Respondent’s Appendix B-1 - B-2).

When one person puts his servant at the dis-
posal and under the control of another for the
performance of a particular service for the latter,
the servant, in respect of his acts in that service,
is to be dealt with as the servant of the latter
and not of the former. This rule is elementary
and finds support in a large number of deci-
sions.

Denton v. Yazoo and M.V.R. Company, 284 U.S. 305, 52 S.Ct.
141, 76 L.Ed. 310 (1932). See also: Standard Oil v. Anderson,
212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909). Respondent

24

put Lee at Gulf’s disposal and while in the course and
scope of Lee’s service for Gulf, allegedly caused injury.

When a borrowed servant commits a tort while carry-
ing out the bidding of the borrower, vicarious liability for
that tort attaches to the borrower, in this case Gulf, and
not to Respondent. Dellums v. Powell, 566 F.2d 216 (D.C.
Cir. 1977); Tidewater Grain Co. v. $.S. POINT MANATEE,
614 F.Supp. 29 (E.D.Pa. 1984); Krueger v. Mammoth Moun-
tain Ski Area, Inc., 873 F.2d 222 (9th Cir. 1989); Trevino v.
General Dynamics Corp., 865 F.2d 1474 (5th Cir. 1989).

The Fifth Circuit has long held that the law is well
established and clear that

. .. the doctrine of respondeat superior has no
application where the employee represents the
employer only as to the lawful purpose of the
contract but does not represent him in the
means by which that purpose is to be accom-
plished, and the assertion of liability is based on
something done or omitted in the use of such
means. Robideaux v. Hebert, 118 La. 1089, 43 So.
887, 12 L.R.A., N.S., 632. See also in full support:
American National Ins. Co. v. Denke,
Tex.Com.App., 95 S.W.2d 370, 372; Marquez v.
LeBlanc, La.App., 143 So. 108; Abate v. Hirdes, 9
La.App. 688, 121 So. 775; Gall v. Detroit Journal,
191 Mich. 405, 158 N.W. 36; 19 A.L.R. 1164;
Skidmore v. Haggard, Mo.Sup., 110 S.W.2d 726;
Bass v. Kansas City Journal Post, 347 Mo. 681, 148
S.W.2d 548; Carter Publications, Inc. v. Davis,
Tex.Civ.App., 68 S.W.2d 640; Bohanon v. James
McClatchy Pub. Co., 16 Cal.App.2d 188, 60 P.2d
510; American Savings Life Ins. Co. v. Riplinger,
249 Ky. 8, 60 S.W.2d 15; National Cash Register
Co. v. Rider, Tex.Com.App. 24 S.W.2d 28; A.L.I.

25

Restatement of Law of Agency, page 11, §§22 and
250;3 Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189.

Great American Indemnity Co. v. Fleniken, 134 F.2d 208,
211-212 (5th Cir. 1943) reh. denied (1943), cert. denied, 63
S.Ct. 1167 (1943).

The undisputed facts set forth by Jeyusi and Ron-
quillo are that Gulf had sole and exclusive control over
Lee’s work. The controlling authorities, including Denton
v. Yazoo, 284 U.S. 305, 525 S.Ct. 141 (1932) and Standard
Oil v. Anderson, 212 U.S. 215, 29 S.Ct. 252 (1909), clearly
hold that liability for negligent acts of an employee is
transferred to the borrowing employer where that bor-
rowing employer exercises, as Gulf did in this case, con-
trol over the activities of the borrowed servant.

Similar results have obtained in recent decisions.
Tyson v. Litwin Corp., 826 F.2d 1255 (3rd Cir. 1987) held
that, in order for derivative liability to attach, the lending
employer must have borne responsibility for the conduct
of its loaned employee. A recent decision clearly spells
out the requirements for a borrowing employer to shoul-
der full responsibility for the acts of a borrowed servant.
In Thille v. E. L. Farmer & Company, 1991 U.S. Dist. LEXIS
1377 (D.Kan. 1991), the court held that the employer of a
truck driver was immune from liability for an accident
allegedly caused by the truck driver where the control for
the unloading operation had been passed to the party
receiving the drill pipe. As in Thille, Lee’s work was
exclusively controlled by Gulf. Lee was performing
Gulf’s work. Gulf not only had the right to control the
details of the work, but, as set forth in the uncontested
facts, did actually control that work.

26

In this case, Gulf, not Respondent, bears respon-
sibility for any fault. This legal conclusion is consistent
with and supportive of the general intent of tort law.
Gulf, by its extensive control and direction of Lee’s work
was in the best position to take precautionary or curative
action. In contrast, Respondent could exercise no such
control. To assess damages against Respondent would not
encourage or promote greater safety because Respondent
did not have the control necessary to control or direct
Gulf in its use of Lee. :

The lower courts properly recognized that Perron has
no right against Respondent. It is uncontested, as a mat-
ter of fact, that Respondent had no actual control over
Lee, nor did Respondent have any right to control Lee. In
the absence of any actual control or right to control by
Respondent, the courts correctly recognized a parallel
absence of liability of Respondent.

¢

CONCLUSION

Contrary to Petitioner’s arguments, the lower courts
correctly applied the law dismissing Petitioner’s suit
against Respondent.

More importantly, in review of Petitioner’s request
for certiorari, Petitioner has cited no important legal
issues on which courts are in conflict and has suggested
no important policy decisions upon which this Court
should pass judgment. Petitioner’s complaint is an epi-
sodic issue on which this Court should await further
lower court analysis before addressing this area.

27

Petitioner has not cited any dispositive jurisprudence
to show that the lower courts erred. The unanimity of the
lower courts both in this litigation passing through the
United States District Court for the Eastern District of
Louisiana as well as the litigation arising in the Western
District of Louisiana arising out of the same incident
shows that there is no error in the courts’ handling of
Petitioner’s claims.

Respondent respectfully submits that Perron’s Peti-
tion for Writ of Certiorari should be denied.

Respectfully submitted,
Of Counsel:

HOFFMAN, SUTTERFIELD, ENSENAT &
BANKSTON
A Professional Law Corporation

James R. SUTTERFIELD

James R. HoLMes

21st Floor - Poydras Center

650 Poydras Street

New Orleans, LA 70130

(504) 423-1385

Attorneys for

Bell Maintenance and
Fabricators, Inc.

Be =) =

i

APPENDICES
A. Statement of Uncontested Material Facts....... B-1

B. AOU GE TE PIO 8 cree vcs eapeesscnaccnne B-4 :

B-1

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

WINSTON J. PERRON CIViL ACTION
VERSUS NUMBER 90-0038
BELL MAINTENANCE AND

FABRICATORS, INC. SECTION “A” (2)

SEEEEESEEEES ES SE SEEE EE EEEES EEE ES EEE EEE SEES EES EEE EESEEEEEEEEEEEEE

STATEMENT OF UNCONTESTED MATERIAL FACT

COMES NOW, Bell Maintenance and Fabricators, Inc.
who submits the following statement of uncontested
material fact in support of its Motion for Summary Judg-
ment.

1. Perron is a borrowed servant of Gulf. (See
attached Exhibits B, C and D).

2. Mike Lee was the only employee of Bell
working on the platform.

3. On the day of the alleged incident, Mike Lee
was working for a Gulf mechanic, Mr. Her-
man Marshall.

4. Mr. Mike Jeyusi was senior production
supervisor in charge of the field in March,
1985 at the time of the incident.

5. Other than the direct supervision of Mike
Lee by Herman Marshall, Gulf exercised the
same control over Mike Lee as Gulf exer-
cised over Perron.

6. Mike Lee received training from Gulf
regarding proper safety procedure while
working on Gulf platform.

10.

11.

B-2

Mike Lee received instructions as to his
responsibility as gauger and/or lease opera-
tor from Gulf.

Mr. Lee’s work was evaluated by and the
decision to retain him as an employee on the
platform was made by Gulf’s supervisor,
Mr. M.K. Jeyusi. Mike Lee worked exclu-
sively on Gulf platforms throughout March,
1985 and, in fact, from April 1983 through
July 1986, Gulf provided all meals, lodging,
tools and transportation to Lee.

The meals, lodging, tools and transportation
were the same as those provided to Gulf
employees.

All control and direction over Bell Mainte-
nance employees such as Lee was exercised
by Gulf.

Gulf had the authority to discharge Lee.
Lee’s responsibilities were essentially the
same as those of Gulf employees in the same
position. Bell did not nor was it allowed to
exercise any control over its employee in the
course of their work for Gulf.

OF COUNSEL: Respectfully submitted,

HOFFMAN, /s/ James R. Holmes
SUTTERFIELD, JAMES R. SUTTERFIELD
ENSENAT Bar No. 12597
& BANKSTON JAMES R. HOLMES

(A Professional Bar No. 6968

Law Corporation) 21st Floor —

Poydras Center

650 Poydras Street

New Orleans, Louisiana
70130

(504) 523-1385

ATTORNEYS FOR BELL
MAINTENANCE AND
FABRICATORS, INC.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing pleading
has been served on counsel for all parties as provided by
F.R.C.P. Rule 5, this 18 day of December, 1990.

/s/ James R. Holmes
JAMES R. HOLMES

B-4

AFFIDAVIT

STATE OF LOUISIANA
PARISH OF LAFAYETTE

BEFORE ME, the undersigned authority, personally
came and appeared M.K. Jeyusi, of lawful age and a
resident of the Parish of Lafayette, Louisiana, who after
being duly sworn, declared that:

I, M.K. Jeyusi, have personal knowledge of the facts
contained herein. I am presently employed by Chevron
U.S.A. as Senior- Production Supervisor. Prior to the
merger of Gulf Oil Corporation and Chevron U.S.A., I
held the same position with Gulf since 1981. Presently I
have over twenty (20) years of service with Gulf and
Chevron.

In my capacity then [initialed MKJ] as Senior Produc-
tion Supervisor, I was in charge of all Gulf production
facilities in the Eugene Island 238 Field including in
March 1985. My duties included the supervision of all
men working in the Eugene Island 238 Field including
those employees who were the payroll employees of Bell
Maintenance, which group included Michael Wayne Lee.

Prior to Lee beginning to work in the Eugene Island
238 Field, he was required by Gulf to receive training
conducted by Gulf at the Gulf training facility in New
Orleans, Louisiana where he was instructed about proper
safety procedures while working on platforms operated
by Gulf. He also received instructions as to what his
responsibilities would be as a gauger or lease operator on
the Gulf production platforms located in the Eugene
Island Field.

B-5

After Lee was brought out to the Eugene Island Field
238 his work was evaluated by me and I made the deci-
sion whether or not Lee could continue working for Gulf
in this field. :

Throughout March 1985, Lee worked solely on Gulf
platforms. In this particular field, he ate all of his meals
and slept on the H platform also owned and operated by
Gulf. All meals and lodging throughout this time period
were provided by Gulf without any expense to either Lee
or Bell Maintenance. All payroll employees of Gulf were
provided the same meals furnished to Lee. All payroll
employees of Gulf were provided the same lodging fur-
nished to Lee and other Bell Maintenance payroll
employees.

While Lee was employed in the Eugene Island Field,
he was required to attend all safety meetings held by Gulf
and conducted by either myself or other Gulf personnel.

Gulf provided all tools necessary for Lee to perform
his job on the production platforms. Bell Maintenance did
not provide any tools whatsoever. Any necessary special
tools or equipment were provided by Gulf for the use and
benefit of Lee.

Transportation to and from the Eugene Island Field
was furnished by Gulf at no charge to either Lee or Bell
Maintenance. Generally this transportation was provided
through contract services procured by Gulf with Petro-
leum Helicopters. When necessary, Gulf provided water-
craft to transport Lee and other Gulf employees.

While in the field, Gulf provided all transportation to
and from work platforms and the housing platform
known as platform H. This transportation was either by

B-6

helicopter or vessel at no charge to either Lee or Bell
Maintenance. This same transportation was provided to
other Gulf employees.

At the onset of his work in the field, Lee, like all Gulf
lease_operators, was instructed on what he should do on
a routine basis while performing his platform assign-
ments. These instructions were provided by me or other
payroll employees of Gulf. At no time did Bell Mainte-
nance exercise any control over any of the work activities
of Lee or other Bell Maintenance hands while those
employees were in the Gulf field. All control and direc-
tion over Bell Maintenance payroll employees were exer-
cised by Gulf.

As a lease operator, Leé had the same responsibilities
as Gulf payroll lease operators and Danos & Curole lease
operators.

Throughout the time that Lee was employed in the
Eugene Island Field, he was required by Gulf to submit
time tickets for approval. These time tickets would be
approved by me and would form the basis of the Bell
Maintenance invoices submitted to Gulf for payment. The
day rates of Bell Maintenance were directly linked to the
hourly rates of Lee which rates were necessarily
approved by Gulf. Additionally, any increases in pay for

Lee had to be approved by myself. Consequently when I,
on behalf of Gulf, approved rate increases for Lee the
rates charged by Bell Maintenance to Gulf for Lee would
also increase. Lee would not receive any hourly increases
without prior approval of Gulf.

Gulf had authority to discharge any Bell Maintenance
payroll employees from employment in the Eugene
Island Field owned and operated by Gulf. Neither Lee

er - -

B-7

nor Bell Maintenance had any control or veto power over
this authority. Furthermore in my capacity as Senior Pro-
duction Supervisor, it was my responsibility and author-
ity to approve the continuation of or the return to
employment of any Bell Maintenance employees in the
Eugene Island Field.

At no time did Bell Maintenance have any person in
the Eugene Island Field with authority. All authority in
that field over Lee was executed by me or other similarly
situated payroll employees of Gulf.

Pursuant to this authority, we required that Lee
report daily from the field. He was required to follow
established time schedules/work schedules and was sub-
ject to performing specific jobs other than his routine job
at the request of myself or other Gulf personnel. His
responsibilities as a lease operator were essentially the
same responsibilities expected of payroll Gulf employees
in similar positions.

The job description and responsibilities of Lee and
Winston J. Perron were identical. I could use these opera-
tors and Gulf lease operators interchangeably as co-
employees to perform services on the various platforms.

/s/ M. K. Jeyusi
M. K. Jeyusi

SWORN TO AND SUBSCRIBED BEFORE ME, THIS
23 DAY OF OCTOBER, 1990.

/s/ J.E. McElligott, Jr.
NOTARY PUBLIC

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1757%3A2. Public record. Not legal advice.