Petition for Writ of Certiorari — Allen v. Texaco Inc.
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Supreme Court, U.S.
FILEC
(YO2 2385 aus 132002
Supreme Court of the Hnited States
PHILLIP ALLEN,
Petitioner,
TEXACO INC.,
On PETITION FOR A Writ OF CERTIORARI TO THE
Unrrep States Court OF APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Lawrence D. Wi a
Counsel of ———
Wiedemann & Wiedemann
821 Baronne Street
New Orleans, LA 70113
(504) 581-6180
Attorneys for Petitioner
Cueev & Tavior ¢ (202) 39893-41416
i
QUESTIONS PRESENTED
Whether, or not, the District Court, and the Court of
Appeals, committed reversible error in granting a
summary judgment depriving plaintiff/applicant of his
day in Court by disregarding the written contract
between Texaco and Danos & Curole, Inc.,
designating plaintiff/applicant to be an independent
contractor, non-employee, of Texaco, Inc., and not
under the conirol or supervision of Texaco, and
concluding that the contract did not create a material
issue of fact under the Fifth Circuit, and Louisiana
State Court, precedent in Alday v. Patterson Truck
Line, Inc., 750 F.2d 375, 378 (5" Cir. 1985); Dugas v.
Pelican Construction Company, Inc., 481 F.2d 773
(5" Cir. 1973), writ denied, 414 U.S. 1093, 38 L.Ed.
550, 94 S.Ct. 724 (1973); and Kirkland v. Western
Electric Co., 296 So.2d 350 (La. 4” Cir., 1974), writ
denied, 302 So.2d 19 (La. S.Ct., 1974).
Can an alleged “borrowing employer” clandestinely
select an alleged “borrowed servant” for ultra
hazardous work not envisioned in the employee’s
employment contract with his general employer, or
the general employer’s contract with the alleged
“borrowing employer”, and thereby unjustly deprive
the employee of his common law right of action for
damages, and at the same time inflict on the general
employer greater exposure under the applicable
‘compensation act; or does such conduct vitiate any
borrowed servant status previously created?
The District Court and the Court of Appeal erred in
failing to apply Louisiana law to this Outer
Continental Shelf Land Act matter.
PARTIES TO THE PROCEEDING
Petiti
PHILLIP ALLEN, a person of the full age of majority
and a resident of Morgan City, Louisiana. Petitioner
is an individual and has no corporate affiliations.
Respondents
TEXACO, INC., defendant
DANOS & CUROLE MARINE CONTRACTORS, INC.,
Intervenor
THE GRAY INSURANCE COMPANY, the insurer of
Danos & Curole Marine Contractors, Inc., Intervenor
ili
TABLE OF CONTENTS
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STATUTORY PROVISIONS INVOLVED ..........cssssssssssssssssesssssscesessesecees 1
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APPENDIX
DECISION DATED MAY 15, 2902, FROM THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT............ la
- JUDGMENT DATED JUNE 14, 2001, FROM THE UNITED
STATES DISTRICT. COURT, EASTERN DISTRICT OF
ORDER AND REASONS ENTERED ON JUNE 5, 2001, BY
HONORABLE SARAH S. VANCE, UNITED STATES
EES EE cnet ene a ee da
TEXACO, INC.’S MASTER WORK AGREEMENT WITH
INDEPENDENT CONTRACTOR .....ccsccccssocssscssssecsecsscssecsecsecescsees 5a
DARYL LANGLOIS DEPOSITION EXCERPTS ........c..sesssesseesseeens 39a
RONALD RATCLIFF DEPOSITION EXCERPTS...........-s:ssesseeeee: 65a
SCOTT NIMELSTEIN DEPOSITION EXCERPTS .........s:ssesseeseees 78a
iv
TABLE OF AUTHORITIES
FEDERAL CASES
ALDAY V. PATTERSON TRUCK LINE, INC., 750 F.2D 375,
a es SIE isvitenniedtainieciliindiiinniiniabibaiicenainaie passim
BROWN V. UNION OIL Co., 984 F.2D 674 (5TH Cir. 1993)........... 12
CHEVRON OIL Co. V. HUSON, 404 U.S. 97, 92 S.CT. 349,
ee Re I CIT TD sciipeneiincicsdadereneennebicienbinenencaantonconniepnaniatiene 16
COOLEY V. SLOCUM, 313 SO.2D 606 (LA. 3RD CIR. 1975)............ 17
DUGAS V. PELICAN CONSTRUCTION COMPANY, INC., 481
F.2D 773 (5TH CIR. 1973), WRIT DENIED, 414 US.
1093, 38 L.ED. 550, 94 S.CT. 724 (1978) ........ eee passim
KIRKLAND V. WESTERN ELECTRIC CO., 296 SO.2D 350
(LA. 4TH CIR., 1974), WRIT DENIED, 302 SO.2D 19 (LA.
Fis MAW OAD icepsitAcceiey shine nnieeeneiniiedenetindchestininsaiedatemniie 8, 16, 17
TS, GIS © a Oe Maeva cieiensicisnnstnesiechnntasseiieimsninetiadacessanngl 12
RUIZ V. SHELL OIL Co., 413 F.2D 310 (5TH CIR. 1969).......... 13, 15
WEST V. KERR-MCGEE CORP., 765 F.2D 526-531, (5TH
CR. FER acnpnccovsniistepnesieciisnnisahiebiceehaterasleiahibbonntiiocadeisanialiedeieinine 12
FEDERAL STATUTES
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SD A ERA Se evsintsvrisiiliennineecccniiiidididiasatinnnncidaiiiia 1, 16
GB SEAS a GD seiessiitcvinetnvstpinsippiguiteninetiiviiiciniianchaimanicedion 16
OTHER AUTHORITIES
Federal Rules of Civil Procedure, Article 56(c)................0+. 8,9
]
OPINIONS BELOW
On June 5, 2001, Honorable Sarah S. Vance, United
States District Judge, Eastern District of Louisiana, New
Orleans Division, entered an order and reasons in which she
granied the motion for summary judgment filed by
defendant/respondent, Texaco, Inc., dismissing
plaintiff/applicant’s complaint with prejudice. (App. 4a)
On June 15, 2001, Honorable Sarah S. Vance, United
States District Judge, Eastern District of Louisiana, New
Orleans Division, entered judgment dismissing
plaintiff/applicant’s complaint with prejudice. (App. 3a)
On May 15, 2002, the United States Court of Appeals,
Fifth Circuit, rendered a per curium opinion affirming the
judgment of the District Court. (App. 1a)
JURISDICTION
The United States Court of Appeals for the Fifth
Circuit entered judgment on May 15, 2002. This petition for
writ for certiorari is filed within the prescribed period of
ninety (90) days after the May 15, 2002, Judgment.
The jurisdiction of this Honorable Court is invoked
under the provisions of 28 U.S.C. §§1254(1) and 2106.
STATUTORY AND REGULATORY PROVISIONS
Federal Rules of Civil Procedure, Article 56 (c)
pertaining to motions for summary judgment, and 43 U.S.C.
§§ 1331-1356, the Outer Continental Shelf Lands Act.
STATEMENT OF THE CASE
Phillip Allen, a forty-year old African-American male
and veteran of the United States Navy, is a native of Morgan
City, Louisiana. He was injured on September 9, 1998, while
in the course and scope of his employment as a production
operator with Danos & Curole. Allen had been employed by
2
Danos & Curole for approximately two years and in addition
had nine years of offshore work experience with Shell Oil.
On September 9, 1998, he was earning $12.00 an hour
and worked a seven days on, seven days off, “hitch”.
The subject-matter accident occurred on September 9,
1998, while Allen was working on Texaco, Inc.’s oil
production platform, the West Cameron 643A. The platform
was located in the Gulf of Mexico, on the Outer Continental
Shelf, off the Coast of Louisiana.
On September 8, 1998, Texaco began evacuating all
non-essential personnel from its offshore rigs over a large
area in the central Gulf of Mexico extending from the rigs
southeast of Galveston, Texas, to the rigs southeast of New
Iberia, Louisiana, a block approximately 200 miles east and
west and 150 miles north and south. The evacuation was
precipitated by the approach of a dangerous tropical storm
named “Frances.” All rigs in the aforedescribed area were
evacuated by September 9, 1998, with the exception of West
Cameron 643A. Plaintiff/applicant, Phillip Allen, without his
knowledge or consent and without the knowledge and
consent of his general employer, Danos & Curole, was
designated by Texaco, Inc. as an essential person to remain
on West Cameron 643A with a Texaco employee, James
Sigur.
Texaco intended to evacuate Allen and Sigur after
they evacuated all of the rigs north, south, east, and west of
West Cameron 643A. Unfortunately, Texaco waited too long
and was advised by their helicopter subcontractor that it was
impossible to evacuate Allen and Sigur because West
Cameron 643A was in the midst of the storm when Texaco
finally decided to effectuate their evacuation.
Allen and Sigur were the only two employees left in
the Western Gulf area to face the wrath of “Frances”.
About 1:00 p.m. on September 9, 1998, a sump pump
on the plus 12 deck, ‘just above the sea_ surface,
malfunctioned and Allen and Sigur went down to attempt to
fix it. While down on the plus 12 deck, Allen was struck by a
25 foot wave and was almost washed overboard at which
3
time he, and Sigur, abandoned the repair effort because of the
hazardous circumstances. However, at approximately 5:00
p.m. a warning horn went off on the rig indicating that
everything on the rig, (lights, fuel, water, etc.), would be shut
down if the sump pump was not fixed. Allen and Sigur went
down a second time to the plus 12 deck and discovered that
the sump pump was leaking. Allen got a 36-inch pipe wrench
and was attempting to tighten the coupling on the sump
pump to stop the leak when he slipped due to the heavy rain,
wind, and difficulty gripping the wrench. He fell back against
the pipe striking his back and head. He subsequently
underwent lumbar surgery and is totally disabled.
Phillip Allen was an experienced operator before he
went to work for Danos & Curole. He had done the same job
with Shell during the 10 years that he had worked for Shell.
When he first went to work for Danos & Curole there was not
an operator job open with Texaco. For seven months he
worked under Charles Phillips, a Danos & Curole operator,
on another Texaco rig. Thereafter, an operator job opened at
West Cameron 643A and he was able to perform all of the
tasks of an operator without supervision.
Danos & Curole had entered into an agreement with
Texaco, Inc. on March 23, 1987, described as “Texaco, Inc.
Master Work Agreement with Independent Contractor.”
(Bold emphasis supplied). (Appendix Exhibit D, pp. ).
The - Master Work Agreement contains three
obligatory clauses required of Danos & Curole by Texaco,
Inc., to-wit:
1. “d. Contractor’s Status. The parties
acknowledge that contractor is an
independent contractor. As_ such,
Texaco shall have no voice in the
discharge, supervision, or control of
contractor's employees, representatives,
or subcontractors or in fixing their
number, compensation, or hours of
service. Texaco shall have no right to
4
control the manner of contractor’s
performance but Texaco and its
representatives shall have the right to
inspect the work performed and make
suggestions and comments thereon.
“2a. Indemnity Contractor covenants and
agrees to fully indemnify, defend, and hold
Texaco, its subsidiaries, and affiliated
companies, their agents, employees, and
persons for whom each is responsible.
(Hereafter, collectively and individually,
called ‘Texaco’) free and harmless from
and against any and all actions, causes of
action, claims, costs (including attorney's
fees and court costs), damages, judgments,
or liabilities in connection therewith that
may be asserted by contractor, its agents,
employees, subcontractors, and persons
for whom contractor is responsible
(hereafter, collectively and individually,
called ‘contractor’), Texaco’s agents,
employees, and persons for whom each is
responsible, or any third party on account
of death or personal injury of any person,
caused by, or arising out of, or in any way
incidental to, or in connection with the
performance of the work hereunder,
except that if Texaco shall be solely at
fault, or liable, whether under a theory of
negligence, strict liability, or combination
thereof, in factually and proximately
causing the particular death or injury, then
this indemnity shall not apply. In the event
that contractor and Texaco shall be
concurrently at fault or liable, whether
under a theory of negligence, strict liability
or combination thereof, then contractor
shall indemnify, defend, and hold Texaco
free and harmless from and against any
5
and all actions, causes of action, claims,
costs (including attorney's fees and Court
costs) damages, judgments, or liabilities
except to the extent of Texaco’s
comparative fault or liability, whether
such fault or liability is based on a theory
of negligence, strict liability, or a
combination thereof.
3. “G. Safety. Contractor shall take all
measures and precautions necessary or
proper to provide safe working conditions
and to prevent any accident in connection
with the performance of work hereunder.
Contractor shail have the sole
responsibility for the safety of its
employees and subcontractors, as well as
their performance in accordance with the
appropriate safety practices.” (Bold
emphasis supplied).
Scott Nimelstein, the Texaco manager of safety health
and environment, responsible for field operations on the
production side covering the Gulf Coasts of Alabama,
Louisiana, and Texas, acknowledged that Texaco, in the case
of a Danos &-Curole worker, like Phillip Allen, did not: issue
payroll checks, deduct withholding taxes, Social Secucity, or
income taxes; provide medical coverage; provide retirement
benefits; provide 401k programs; or permit participation in its
employee stock program, like it did for its direct employees.
(Appendix Exhibit E, pp. 61-62 of Nimelstein deposition).
Mr. Tommy L. Mathews, Jr., the production supervisor
for Texaco in the deep west, the area in question at the time
of the accident, testified that Phillip Allen was initially listed
on the evacuation manifest as a non-essential person and for
some reason, unknown to him, his name was scratched off of
the evacuation manifest list. (Appendix Exhibit F, pp. 36, 37,
Matthews deposition). He also testified that Texaco, without
6
the knowledge of the employee or his general employer,
could arbitrarily designate employees of a subcontractor as
an essential employee and require them to man a Texaco rig
in a storm. This alleged right, and authority, was not
contained in the contract between Texaco and Danos &
Curole. (Appendix Exhibit F, pp. 4849, Matthews
deposition). Allen and a Texaco employee were the only two
people left offshore in the Western Gulf during “Frances”.
They were to be evacuated but the weather deterioration
prevented their evacuation. (Appendix Exhibit F, pp. 54, 55,
and 57, Mathews deposition).
Ronald Ratcliff, Danos & Curole’s account manager,
testified in deposition that he had day-by-day concern for his
employees’ safety and sought to avoid their exposure to
hazardous conditions. (Appendix Exhibit G, p. 49, Ratcliff
deposition). If it came to his attention that a Danos & Curole
employee had been put in danger, the Danos & Curole
employee would be removed from the job pursuant to their
company policy. (Appendix Exhibit G, p. 141, Ratcliff
deposition).
- When bad weather threatened Texaco’s platforms,
Ratcliff would contact Texaco to determine whether, or not,
Danos & Curole’s employees had been sent in, or remained
out in the Gulf. (Appendix Exhibit G, p. 17, Ratcliff
deposition). He would then call the platforms directly and
speak directly with his employees. (Appendix Exhibit G pp.
18, 21, Ratcliff deposition). He would even suggest that
Texaco evacuate Danos & Curole’s employees. (Appendix
Exhibit G p. 32, Ratcliff deposition).
Texaco, Inc. did not control how Phillip Allen did his
work, nor would it train him to do it. There was no
agreement or understanding for Texaco, Inc. to provide a
supervisor or foreman to oversee the details of Allen’s work.
Instead, Allen would get a list of assignments from Texaco
and then go about his work with no supervision. In short,
Allen, from his 10 years as an operator for Shell and his two
years with Danos & Curole, knew what needed to be done
and Texaco, Inc. would merely monitor the _ results.
(Appendix Exhibit G, pp. 71-73, Ratcliff deposition).
7
On September 9, 1998, because of his concerns for his
own safety, Phillip Allen had several conversations with
Daryl Langlois, Danos & Curole’s personnel coordinator at
the time. (Appendix Exhibit H, pp. 20, 21, Langlois
deposition). Langlois spoke with Allen directly and not with
any Texaco, Inc. personnel. (Appendix Exhibit H. p. 94,
Langlois deposition). When Allen told him that he had been
outside on the platform working in the storm, Langlois told
Allen to go inside and remain there and put on his life jacket.
He recognized that working on the +10 deck in a storm was
dangerous. (Appendix Exhibit H, p. 38, Langlois deposition).
(Appendix Exhibit H, pp. 20, 31, Langlois deposition). He
then told Allen to remain inside 643A and to refuse any
order or request by any Texaco, Inc. employee to the
contrary. (Appendix Exhibit H, p. 40, Langlois deposition).
After speaking with Allen, Langlois tried repeatedly to
contact Texaco, Inc. and have Allen evacuated to safety.
(Appendix Exhibit H, p. 21, Langlois deposition).
Employees of Danos & Curole were told to call and
report if they were exposed to any danger and that’s what
Phillip Allen did. (Appendix Exhibit H, p. 42, Langlois
deposition).
Langlois was unaware of any agreement, contract, or
other understanding which anticipated that Texaco, Inc.
would supervise or instruct Allen in how to go about his
work. (Appendix Exhibit H p. 72, Langlois deposition).
ARGUMENT -
I.
WHETHER, OR NOT, THE DISTRICT COURT,
AND THE COURT OF APPEALS, COMMITTED
REVERSIBLE ERROR IN GRANTING A
SUMMARY JUDGMENT DEPRIVING
PLAINTIFF/APPLICANT OF HIS DAY IN COURT
BY DISREGARDING THE WRITTEN CONTRACT
BETWEEN TEXACO AND DANOS & CUROLE,
INC. DESIGNATING PLAINTIFF/APPLICANT
TO BE AN INDEPENDENT CONTRACTOR,
NON-EMPLOYEE, OF TEXACO, INC. AND NOT |
UNDER THE CONTROL OR SUPERVISION OF
TEXACO AND CONCLUDING THAT THE
CONTRACT DID NOT CREATE A MATERIAL
ISSUE OF FACT UNDER THE FIFTH CIRCUIT,
AND LOU'TSIANA STATE COURT,
PRECEDENTS IN Alday v. Patterson Truck
Line, Inc., 750 F.2d 375, 378 (5" Cir. 1985);
Dugas v. Pel. can Construction Company, Inc.,
481 F.2d 773 (5" Cir. 1973), writ denied, 414
U.S. 1093, 38 L.Ed. 550, 94 S.Ct. 724 (1973); and
Kirkland v. Western Electric Co., 296 So.2d 350
(La. 4” Cir., 1974), writ denied, 302 So.2d 19
(La. S.Ct. 1974).
The District Court granted Texaco’s FRCP Rule 56(c)
motion for summary judgment on the eve of trial by jury
dismissing plaintiff/applicant’s suit, with prejudice. The
United States Fifth Circuit Court of Appeal in a two-page per
curium opinion, acknowledging that its precedent on the
Master Work Agreement “creates an issue of material fact on
the borrowed servant issue,” went on to conclude that
“undisputed” facts relating to the borrowed servant factors
point "so strongly toward” a borrowed servant relationship
that summary judgment was appropriately granted despite
contract language purporting to limit Texaco’s control over
Allen.
9
FRCP Rule 56(c) states, in pertinent part:
, , » the judgment sought shall be rendered
forthwith if the pleadings, depositions,
answers to interrogatories and admissions on
file, together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of law.”
(Bold emphasis added).
The Fifth Circuit’s conclusion that the facts “point so
strongly” does not rise to the level of “no genuine issue”,
literally, or factually, as required by FRCP 56(c).
Pretermitting, a decision of the material facts at issue in the
verified statement of facts, the Court’s reference to its own
precedent in Alday v. Patterson Truck Line, Inc., 750 F.2d
375, 378 (5" Cir. 1985), and its uncited progeny, Dugas v.
Pelican Construction Company, Inc., 481 F.2d 773 (5" Cir.
1973), writ denied, 414 U.S. 1093, 38 L.Ed. 550, 94 S.Ct. 724
(1973), stand for the proposition that summary judgment was
improvidently rendered in this case because of the contract
between Texaco and Danos & Curole designating Phillip
Allen to be an independent contractor and not an employee
of Texaco and not under Texaco’s supervision and control.
In Dugas v. Pelican Construction Company, Inc.,
supra, rendered by three-deceased titans of the Court,
Honorable John R. Brown, John Minor Wisdom, and Robert
Ainsworth, the Court concluded, at page 778:
“While numerous factors must be considered
to determine whether an individual is a
borrowed servant or employee of another,
essential to that relationship is some type of
agreement, written or verbal, formal, or
informal, between the general employer
and the temporary employer evidencing
an intention to create that relationship.
There is nothing in the record to indicate that
Pelican or Union either intended or desired to
10
establish 2 borrowed employee relationship
between Union and the men Pelican supplied.
The written contract itself negates such an
intention. The pertinent clause provides Gat
‘In the performance of the work
herein contemplated,
CONTRACTOR [Pelican] is an
independent contractor, with
the authority to control and
direct the performance of the
details of the work, Union
being interested only in the
results obtained, but the work
contemplated herein shall meet
the approval of Union.
CONTRACTOR specifically
agrees that all _ persons
employed by CONTRACTOR in
performing the work covered
by this contract or by
CONTRACTOR’S
subcontractors, are not the
employees of Union for any
purpose whatsoever. . .”
If anything, the Master Agreement between Texaco
and Danos & Curole herein, more emphatically emphasizes
the independent contractor, non-employee, relationship
between employees of Danos & Curole than in the Dugas v.
Pelican Construction, Inc. case, supra.
The case came before the Court in Dugas v. Pelican
Construction Inc., supra, by appeal from a final judgment of
the District Court and not from the granting of a motion for
summary judgment.
In Alday v. Patterson Truck Line, Inc., 750 F.2d 375
(5" Cir. 1985), cited by the Fifth Circuit and authored by the
late Honorable Frank Tate, the Court reversed a District
11
Court granting of summary judgment. The Court, at page 376,
recognized, as did the Dugas court, supra, the acquiescence
of the employee as a significant factor in determining
whether, or not, a borrowed servant relationship was in
existence. The Court, at page 377, also like the Dugas Court,
recognized the special weight to be given to the contractual
agreement between the payroll employer and the borrowing
employer expressly negating a borrowed servant relationship.
The Court in Alday v. Patterson Truck Line, Inc.,
supra, had under consideration a contract not as definitive as
to elimination of independent contractor status, as the
contract involved herein. The Court in reversing the Lower
Court summary judgment, at page 378, made the following
pertinent observation:
“On full development of the evidence, it is
true, a trier of fact might find that, in actual
working operations, the parties ignored their
solemn contract. On the basis at least of the
sparse factual showing here, however, we are
unable to say that no factual issue is raised by
these contractual provisions, which ‘negate’
any intention on the part of the employers to
establish a borrowed employee relationship.
Dugas, supra, 581 F.2d at 778 (where a similar
agreement was held to negate a borrowing
employee relationship, under the facts there
present). These contractual provisions
nevertheless raise an issue of fact as to Alday’s
status as an alleged borrowed employee of
Patterson that precludes summary judgment,
despite the inferences to the contrary that may
be drawn from the unopposed affidavit of
Atchafalaya’s president and the observations
of Alday himself as to his working conditions
on his single day at work.”
Justice Tate went on to point out the paradox of not
holding the contracting parties to their agreement. At page
378, he pointed out the well-reasoned impetus for the Court’s
12
holding, as follows:
“This may perhaps be more readily seen if a
converse situation is posed. If a third party
was injured by Alday’s tort on Patterson’s
premises, and sought to hold Patterson liable
under respondeat superior as_ Alday’s
borrowing employer such third party plaintiff
could not secure a summary judgment holding
Patterson liable simply because of a self-
serving and conclusory” affidavit by .
Atchafalaya that, contrary to the formal
contract between Atchafalaya and Patterson,
Atchafalaya had relinquished control of Alday
to Patterson. . .”
Likewise, had Phillip Allen negligently injured a third
party and that third party was suing Texaco for damages
under respondeat superior, is there any question but that
Texaco would be hiding behind the contract and seeking
summary judgment.
Failing to give effect to the contract as was done by
the Courts in Alday v. Patterson, supra, and Dugas uv.
Pelican, supra, allows Texaco to take a “heads I win, tails you
lose” position toward subcontractor employees and third
persons.
The Fifth Circuit in Brown v. Union Oil Co., 984 F.2d
674 (5" Cir. 1993) recognized that borrowed servant status
may be a “matter of law” or a “matter of fact”. The Court, at
page 677, opined:
“The issue of borrowed employee status is a
‘matter of law’ for the District Court to
determine, Melancon, 834 F.2d at 1244, but
some cases involve factual disputes on the
issue of borrowed employee status and require
findings by a fact-finder. See Id. at 1245n13;
West v. Kerr-McGee Corp., 765 F.2d 526-531,
(5" Cir. 1985); Alday v. Patterson Truck Line,
Inc., 750 F.2d 375, 378 (5" Cir. 1985). In
13
Melancon, West, and Alday, factual findings
were necessary concerning the _ third
borrowed employee factor —- — whether the
original employer and borrowing employer
had an understanding or agreement on the
issue of employee status .. .” (Bold emphasis
added).
Even in Ruiz v. Shell Oil Co., 413 F.2d 310 (5" Cir.
1969), the cornerstone case on borrowed servant status, the
Court, at page 313, stressed the significance of an agreement:
“Although a formal agreement between the
two employees’ is not _— considered
indispensable to the borrowed _ servant
relationship, the very terms ‘borrowed’ and
‘loaned’ connote some type of agreement,
understanding, or meeting of the minds
between the borrower and the lender. . .”
The Master Agreement negates Danos & Curole’s
relinquishment of “control”, the essential factor in a
determination of borrowed servant status and, likewise,
negates Texaco’s “control”. Since “control” is the seminal
factor in Ruiz v. Shell Oil, supra, and “control” has been
contractually eliminated by Texaco and Danos & Curole how
can one conclude that there is not a material issue of fact at
issue for determination by a Jury under the aforecited
jurisprudence and contract.
Therefore, it is respectfully submitted that the
contract between Texaco and Danos & Curole is binding
between themselves, and Phillip Allen under that contract is
an independent contractor and not a borrowed servant.
Accordingly, the criteria of Ruiz v. Shell Oil Co., 413 F.2d 310
(5" Cir. 1969), for determination of borrowed servant status
does not enter into consideration unless there is a third party
claim.
14
Il.
CAN AN ALLEGED “BORROWING EMPLOYER”
CLANDESTINELY SELECT AN ALLEGED
“BORROWED SERVANT” FOR ULTRA
HAZARDOUS WORK NOT ENVISIONED IN THE
EMPLOYEE’S EMPLOYMENT CONTRACT WITH
HIS GENERAL EMPLOYER, OR THE GENERAL
EMPLOYER’S CONTRACT WITH THE ALLEGED
“BORROWING EMPLOYER”, AND THEREBY
UNJUSTLY DEPRIVE THE EMPLOYEE OF HIS
COMMON LAW RIGHT OF ACTION FOR
DAMAGES, AND AT THE SAME TIME INFLICT
ON THE GENERAL EMPLOYER GREATER
EXPOSURE UNDER THE APPLICABLE
COMPENSATION ACT OR DOES SUCH
CONDUCT VITIATE ANY BORROWED SERVANT
STATUS PREVIOUSLY CREATED?
The Master Work Agreement between Texaco and
Danos & Curole provides:
“.. . CONTRACTOR (Danos & Curole) shall
have the sole responsibility for the safety of its
employees and subcontractors, as well as their
performance in accordance with the
appropriate safety practices ...” (Appendix
Exhibit D, pp. ).
Nothing in the agreement authorizes Texaco to
subject Danos & Curole employees to an ultra hazardous
work environment. As a matter of fact the only clause in the
agreement dealing with working conditions is_ that
hereinabove placing the responsibility squarely on the
shoulders of Danos & Curole. How then can Texaco not be
required to notify Danos & Curole that the status of its
employee has been changed to “essential”, and one of two in
the Western Gulf arbitrarily, and clandestinely, chosen to face
the hazards of a storm, “Francis”, severe enough to require
massive evacuation?
a
If a “borrowed servant” status can be created by a
meeting of the minds; can it not then be violated by a breach
that strikes at the very foundation of the relationship?
In the preceding argument we have stressed the
necessity for an agreement between the general employer
and the borrowing employer and, obviously, the general
employer herein cannot be held to have been in agreement
with Texaco’s decision. This is made abundantly clear by the
deposition testimony of Daryl Langlois, Danos & Curole’s
personnel coordinator, who upon learning that his employee,
Phillip Allen, was still on the Texaco platform in the middle
of the storm, ordered Phillip Allen to stay inside and to
refuse any order or request from Texaco, or its
employees to the contrary. Mr. Langlois then repeatedly
tried to contact Texaco to effectuate Allen’s evacuation to
safely. Is there any doubt who was in “control” at this time
under Ruiz v. Shell Oil Co., 413 F.2d 310 (5" Cir. 1969). Any
status that existed prior to that time was terminated.
In Dugas v. Pelican, supra, the Court went on to point
out another very significant and often overlooked requisite of
a borrowed servant relationship, namely, acquiescence of the
employee who, after all, has a vested interest in determining
whether, or not, to accept the working conditions of the
borrowing employer.
The Court, at page 778, made the following pertinent
observation: _
“Other traditional factors generally indicative
of the borrowed employee relationship, and
absent here, are ‘acquiescence by the
[employee] that he be employed’ by the
[temporary employer]’. . .”
More importantly, there was never any acquiescence
by plaintiff/applicant to the danger to which Texaco exposed
him, without his “consent” and without the “consent” of his
employer.
16
The Court in Alday v. Patterson Truck Line, Inc.,
supra, at p. 375, N5, emphasized that the emp!ovee’s
acquiescence can only be achieved when the employee
appreciates the danger associated with the work to which he
is assigned.
If Texaco had told Phillip Allen that he was going to
be left on one of their platforms in a dangerous storm, he
would have been entitled to refuse the employment and ask
his general employer to send him to a less hazardous
employment. He was not given that opportunity and he
cannot be made to acquiesce in a hazard of which he has no
knowledge. Such a conclusion would relegate him to a
kidnap-like status, rather than an employee status.
Ill.
THE DISTRICT COURT AND THE COURT OF
APPEAL ERRED IN FAILING TO APPLY
LOUISIANA LAW UNDER THE OUTER
CONTINENTAL SHELF LANDS ACT.
Under the Outer Continental Lands Act, 43 U.S.C.
§§1331-1356, Louisiana Law applies to the Texaco 643A
offshore platform. 43 U.S.C. §1333(a)(2).
This Court in Chevron Oil Co. v. Huson, 404 U.S. 97,
92 S.Ct. 349, 30 L.Ed.2d 296 (1971), acknowledged that the
laws of the adjacent state, Louisiana herein, shall apply to the
extent that they are applicable and not inconsistent with
applicable Federal laws.
The Louisiana law, regarding the effect of a contract
between general employer and the borrowing employer
stipulating employee status, is identical to that laid down by
the Fifth Circuit in Alday v. Patterson Truck Line, Inc.,
supra, and Dugas v. Pelican Construction Company, Inc.,
supra. In Kirkland v. Western Electric Co., 296 So.2d 350 (4"
Cir. 1974), writ denied, 302 So.2d 19 (La. 1974), the Court, at
page 353, stated:
“Clearly the contract between Western
Electric and Private Patrol is the law
17
between these parties and they are bound
between themselves by their agreement
that the guard will be considered the employee
of Private Patrol at all times during the
performance of his duties, but by contract
these parties cannot fix the status of that
guard with respect to rights belonging to and
obligations owed to third parties who are not
in any way parties to the contract.” (Bold
emphasis supplied).
Interestingly enough the Louisiana Court took care of
the third party paradox raised by Judge Tate in Alday v.
Patterson Truck Lines, Inc., supra, by exempting third
parties from the contract.
Under Louisiana law there is also a presumption that
the general employer retains control and remains ‘liable for
the negligent acts of his employees. If the general employer
seeks to establish that his employee has become the
“borrowed employee”, or an employee pro hac vice, of
another, he must establish by a preponderance of the
evidence that the employee not only has been loaned and is
under the control of the borrowing employer but also that the
relationship of master and servant which therefore existed
between the general employer and the employee has been
suspended. See Cooley v. Slocum, 313 So.2d 606 (La. 3” Cir.
1975).
Texaco cannot overcome its contractual agreement as
to the status of Danos & Curole employees and cannot meet
the Cooley v. Slocum, supra, burden under the facts verified
in the statement of facts herein.
CONCLUSION
It is respectfully submitted that this Honorable Court
should grant the within writ of certiorari and after due
proceedings reverse the judgment of the United States
District Court, Eastern District of Louisiana, New Orleans
18
Division, and the decision of the United States Fifth Circuit
Court of Appeal granting the summary judgment of
defendant/respondent, Texaco, Inc. dismissing the complaint
of plaintiff/applicant, Phillip Allen, and remanding the case to
the United States District Court for the Eastern District of
Louisiana, New Orleans Division, for a trial on the merits.
RESPECTFULLY SUBMITTED,
Lawrence D. Wiedemann
Counsel of Record
WIEDEMANN & WIEDEMANN
821 Baronne Street
New Orleans, Louisiana 70113
Telephone: (504) 581-6180
Attorney for petitioner,
Phillip Allen
la
(Any footnotes trail the end of each document.)
No. 01-30727
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Allen
v.
Texaco Inc
May 15, 2002 filed
Appeal from the United States District Court for
the Eastern District of Louisiana
(USDC No. 99-CV-1456-R)
Before REAVLEY, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Phillip Allen appeals the district
court’s order granting summary judgment on his suit for
negligence against Texaco. We AFFIRM the decision of the
district court for the reasons provided by that court.
With respect to Allen’s argument that the district
court erroneously placed the burden on him to negate the
“borrowed servant” affirmative defense, the court does not
appear to have done so. The court never stated that Allen
would bear the burden of proof on the borrowed servant
issue at that, and correctly stated the law relating to burden
of proof issues. Rather than finding that Allen failed to put
forth evidence on the borrowed servant issue, the court
concluded that “the facts overwhelmingly support a finding
that plaintiff was Texaco’s borrowed employee.” The record
supports this conclusion.
Though not discussed by the parties or the district
court, we also note that generally under this Court's
2a
precedent, a contractual provision like § 1(D) of the Master
Work Agreement creates an issue of material fact on the
borrowed servant issue.fnl However, the undisputed facts
relating to the other borrowed servant factorsfn2 point so
strongly toward a borrowed servant relationship that
summary judgment was appropriate despite contract
language purporting to limit Texaco’s control over Allen.fn3
AFFIRMED.
Footnotes
*Pursuant to 5TH CIR. R. 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 CIR. R. 47.5.4.
fnlAlday v. Patterson Truck Line, Inc., 750 F,2d 375, 378
(5th Cir. 1985).
fn2Ruiz v. Shell Oil Co., 413 F.2d 310,312-13 (5th Cir.
1969) (identifying the factors that courts should typically look
to in determining whether an employee is a borrowed
servant).
fn3Alday, 750 E.2d at 379 (citing Gaudet v. Exxon Corp.,
562 F.2d 351, 358-59 (5th Cir. 1977)). The Court also notes
that the Master Work Agreement in the present case did not
as strongly disavow the intent to create a borrowed servant
relationship as did the contract at issue in Ai4ay, or in a
similar case, West v. Kerr-McGee Corp., 765 F.2d 526, 531 (5th
Cir. 1985).
3a
NO. 99-1456
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Allen
v.
Texaco Inc
CIVIL ACTION SECTION “R”
June 14, 2001 filed
JUDGMENT
Considering the Court’s order and reasons on file herein,
IT IS ORDERED, ADJUDGED, AND DECREED that the
plaintiff's complaint is hereby DISMISSED with prejudice.
New Orleans, Louisiana, this
Day of June 2001.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
4a
CIVIL ACTION NO: 99-1456
SECTION: “R” (4)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PHILLIP ALLEN
versus
TEXACO, INC.
ORDER AND REASONS
Defendant, Texaco, Inc., has moved this Court for summary
judgment, seeking to dismiss all of plaintiff's claims against it.
Because the Court finds that plaintiff, Phillip Allen, was the
borrowed employee of Texaco, Inc., it GRANTS defendant’s
motion.
I. BACKGROUND
Phillip Allen was a payroll employee of Danos & Curole
Marine Contractors, Inc. who was assigned to work as a
roustabout/operator for Texaco aboard oil platforms located
in the Gulf of Mexico. Allen contends that, while working on
Texaco’s West Cameron 643A platform on September 9, 1998,
he sustained injuries when a wrench slipped while he was
working on a malfunctioning pump during a storm.
Danos & Curole is in the business of supplying workers to
various oil companies, including Texaco. It supplied its
employees, purportedly including Allen, to Texaco pursuant
to “Master Service Agreement.” (See Def.’s Me. Supp. Mot.
Summ. J. Ex. A.) This contract states that Danos & Curole
shall perform as an “independent contractor” and that Texaco
shall not exercise control over the employees of Danos &
Curole. (See id. Ex. A ¥ 1 D.)
4a-1
Texaco employed Allen to produce oil and gas from Texaco’s
lease site. At the time of the accident, the crew for the West
Cameron 643A platform consisted of two Texaco payroll
employees and one contract employee, plaintiff. (See id. Ex.
B.) No supervisory personnel from Danos & Curole
maintained a physical presence on the platform. Plaintiff
worked seven days on/seven days off shifts, with Texaco
determining plaintiff's work schedule and the amount of time
he worked on the West Cameron 643A platform. (See id. Exs.
B & D at 39). Texaco provided all food, lodging, and
transportation to and from the platforms. (See id. Exs. B & E
at 27). Texaco also provided all tools and equipment Allen
needed to perform his work on the platform. (See id. Ex. B.)
Texaco provided plaintiff with daily work orders and job
responsibilities. (See id.) Texaco personnel provided
additional instructions to plaintiff on what plaintiff needed to
do while working on the platform and what his
responsibilities included. (See id. Exs. B & D at 51-52).
Plaintiff routinely submitted reports to Texaco’s production
supervisor, and plaintiff attended all production meetings
- conducted and attended by Texaco personnel. (See id. Exs.
B.) Under the Texaco and Danos & Curole contract, Danos &
Curole billed Texaco for the hours plaintiff worked, and
Danos & Curole issued plaintiff his paycheck. (See id. Ex. B.)
Texaco had the right to discharge plaintiff from his job as an
operator on the platform. (See id. Ex. B.)
Texaco moves for summary judgment on the grounds that
plaintiff is Texaco’s borrowed servant, and _ therefore
plaintiff's exclusive remedy is workers compensation benefits
under the LHWCA. Plaintiff argues that summary judgment is
inappropriate because Texaco did not retain authoritative
direction and control over the performance of his work and
that Texaco merely monitored plaintiffs work. Rather,
plaintiff asserts that he was an independent contractor
working for Texaco.
Il. | DISCUSSION
A. _ Legal Standard
Summary judgment is appropriate when there are no genuine
issues as to any material facts, and the moving party is
entitled to judgment as a matter of law. See FED. R. Civ. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
106 S. Ct. 2548, 2552 (1986) . A court must be satisfied that no
reasonable trier of fact could find for the nonmoving party or,
in other words, “that the evidence favoring the nonmoving
party is insufficient to enable a reasonable jury to return a
verdict in her favor.” Lavespere v. Niagara Mach. & Tool
Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511
(1986)). The moving party bears the burden of establishing
that there are no genuine issues of material fact.
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 merely pointing out that the evidence in
the record contains insufficient proof concerning an essential
element of the nonmoving party’s claim. See Celotex, 477 U.S.
at 325, 106 5. Ct. at 2554; see also Lavespere, 910 F.2d at 178.
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 Celotex, 477 U.S. at
324, 106 S. Ct. at 2553. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a
genuine issue exists for trial. See id. at 325, 106 5. Ct. at 2553-
54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1996).
_ B. Borrowed Employee Doctrine
The Outer Continental Shelf Lands Act, 43 U.S.C. § 1333, et
seq., applies to this dispute because Allen was injured on an
oil platform located on the Outer Continental Shelf, off the
Louisiana coast. OCSLA provides that the Longshore and
Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950,
4a-3
regulates the right to compensation of an injured platform
worker. See 43 U.S.C. § 1333(b). Under the LHWCA, workers’
compensation is the exclusive remedy for an employee
against his “employer.” See 33 U.S.C. §§ 904(a), 905(a). The
Fifth Circuit has extended this tort immunity provision to
include borrowing employers under the “borrowed
employee” doctrine. See Total Marine Servs., Inc. v. Director,
Office of Worker’s Compensation Programs, 87 F.3d 774, 777
(5th Cir. 1996) (citing Hebron v. Union Oil Co., 634 F.2d 245
(5th Cir. 1981); Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir.
1977)); Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1243-44
(5th Cir. 1988) ‘citations omitted) . Workers’ compensation
also provides the exclusive remedy for an employee injured
“by the negligence or wrong of any other person or persons in
the same employ.” 33 U.S.C. § 933(i). Accordingly, if this
Court determines that Allen was Texaco’s borrowed
employee, Texaco will be vested with § 933(i) immunity.
The district court determines the issue of borrowed employee
status as a matter of law. See Capps v. N.L. Baroid-NL Indus.,
Inc., 784 F.2d 615, 617 (5th Cir. 1986) (citing Gaudet, 562 F.2d
at 357-58); Melancon, 834 F.2d at 1244. “~I]f sufficient basic
factual ingredients are undisputed, the court may grant
summary judgment.” Capps, 784 F.2d at 616 (citing Gaudet,
562 F.2d at 358-59). In Ruiz v. Shell Oil Co., the Fifth Circuit
outlined nine factors to be used to determine whether the
borrowed employee doctrine applies. 413 F.2d 310, 312-13
(5th Cir. 1969). These factors include the following
considerations:
1. Who has control over the employee and the work he
is performing, beyond mere suggestion of details of
cooperation?
2. Whose work is being performed?
3. Was there an agreement, understanding, or meeting of
the minds between the original and the borrowing employer?
4a-4
4. Did the employee acquiesce in the new work
situation?
5. Did the original employer terminate his relationship
with the employee?
6. Who furnished the tools and the place of
performance? -
7. Was the new employment over a considerable length
of time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?
See id. See also Melancon, 834 F.2d at 1244. Although no
single factor or combination thereof is determinative, the
Fifth Circuit has generally considered the factor of control to
be central. See Brown v. Union Oil Co., 984 F.2d 674, 676 (5th
Cir. 1993); Melancon, 834 F.2d at 1245; Capps, 784 F.2d at 617.
However, in Gaudet, the Fifth Circuit deemphasized the
control factor and found that only the fourth, fifth, sixth, and
seventh factors should be considered “essential.” 562 F.2d at
356. See Brown, 984 F.2d at 677 n.2.
1. Who had Control Over the Employee and the Work He
was Performing?
Determination of the control factor requires the Court to
distinguish “‘between authoritative direction and control, and
mere suggestion as to details or the necessary cooperation,
where the work furnished is part of a larger undertaking.”
Ruiz, 413 F.2d at 313 (quoting Standard Oil Co. v. Anderson,
212 U.S. 215, 222, 29 5. Ct. 252, 254 (1909)).
Danos & Curole furnished plaintiff's services as a platform
worker to Texaco under a “Master Service Agreement,”
which states that Texaco has no control of Danos & Curole’s
employees. (See Def.’s Mem. Supp. Mot. Summ. J. Ex. A J
4a-5
1D.) At the time of the accident and for the seventeen months
prior to the accident, plaintiff was the only Danos & Curole
employee on the Texaco platform and did not have anyone
from Danos & Curole assisting or supervising his work. (See
id. Ex. D. at 43.) Plaintiff testified that he received his daily
assignments from Texaco personnel. (See id. Ex. D. at 51.)
Texaco personnel also supervised Danos & Curole employees
on Texaco platforms. (See id. Ex. C at 75.) Plaintiff's direct
supervisor was a Texaco employee. (See id. Ex. E at 106, 120,
121.) Texaco set plaintiff's work schedule, determined when
crew changes occurred, and decided whether or not to
discharge Danos & Curole employees, such as plaintiff, from
Texaco assignments. (See id. Ex. E at 14 & 76.) Further,
Texaco decided whether to evacuate plaintiff from the
platform and who was essential to the platform’s operation.
(See id. Ex. E at 18, 30-31.) Moreover, Danos & Curole did not
have any representatives on the platform to supervise or
direct plaintiffs work for the last seventeen months of
plaintiffs job aboard the platform. (See id. Ex. D at 49-50.)
Danos & Curole’s personnel coordinator testified that he had
no knowledge of how plaintiff conducted his job. (See id. Ex.
E at 71.) Thus, Texaco argues that there is thus no factual
dispute as to who supervised plaintiff's work on the platform.
Compare Brown, 984 F.2d at 678 (issue of fact on borrowed
employee status when conflicting testimony regarding
whether payroll employer or platform owner instructed
plaintiff on how, when and where to perform his cleaning
duties).
That plaintiff used his own discretion in evaluating the safety
of tasks without direction from Texaco does not preclude a
finding of borrowed employee status when Texaco personnel
told them “what work to do, and when and where to do it.”
Melancon, 834 F.2d at 1245. This Court does not interpret the
control factor to require that the borrowed employer direct
each and every action taken by the borrowed employee.
Moreover, that Danos & Curole personnel spoke with plaintiff
during the storm, met with plaintiff on his days off, gave
plaintiff the authority to refuse work if he felt unsafe, and
told plaintiff to contact Danos & Curole if anything
4a-6
endangered him does not defeat borrowed employee status
because these contacts were only incidental to the central
purpose of his employment, to maintain gas production from
Texaco’s platform. See Moody v. Callon Petroleum Operating
Co., 1999 WL 596268, at *3 (E.D. La. Aug. 3, 1999) . Although
plaintiff makes much of facts indicating that Danos & Curole
showed “concern” for him when he was left on Texaco’s
platform during a storm in the Gulf, such a natural inclination
does not change the nature of plaintiffs relationship with
Texaco. After reviewing all of the relevant deposition
testimony and other evidence, the Court finds that the
supervision and instruction provided by Texaco rose above
“mere suggestion of details or cooperation.” Accordingly, the
control factor weighs in favor of finding that plaintiff was
Texaco’s borrowed employee status as to plaintiff.
2. Whose Work was Being Performed?
There is no dispute that Danos & Curole provided personnel
and services to Texaco to assist in the operation of the West
Cameron 643A platform. The West Cameron 643A is owned
and operated by Texaco. (See Def.’s Mem. Supp. Summ. J. Ex.
B.) The record indicates that the maintenance and operations
conducted by plaintiff did in fact promote Texaco’s
operations. Accordingly, the second factor weighs in favor of
borrowed employee status.
3. Was there an Agreement or Understanding Between
the Original and the Borrowing Employer?
Danos & Curole entered into a master service contract with
Texaco. This contract provides in pertinent part:
_D. Contractor’s Status
The parties acknowledge that Contractor is an independent
Contractor. As such, Texaco shall have no voice in the
discharge supervision, or control of Contractor’s employees,
representatives or subcontractors or in fixing their numbers,
compensation, or hours of service. Texaco shall have no right
4a-7
to control the manner of Contractor’s performance but
Texaco and its representatives shall have the right to inspect
the work performed and to make suggestions and comments
thereon.
(See id. Ex. A.) Although the contract specifically calls for
Danos & Curole to be considered an independent contractor,
the Fifth Circuit has held that such a contract provision does
not automatically negate borrowed employee status. See
Brown, 984 F.2d at 677-78; Melancon, 834 F.2d at 1245. “The
reality at the work site and the parties’ actions in carrying out
a contract . . can impliedly modify, alter, or waive express
contract provisions.” Melancon, 834 F.2d at 1245 (citations
omitted). Analyzing contract language, the Melancon court
held that the provision did not negate borrowed empioyee
status when the nominal employer clearly understood that
plaintiff would take his instructions from the borrowed
employer. See id. As discussed supra, the evidence here
indicates that Danos & Curole did not instruct plaintiff on
how to perform his duties on the Texaco platform. Indeed,
Danos & Curole’s personnel coordinator testified that the
contract’s terms did not reflect the reality of the situation. In
fact, when asked if the Danos & Curole and Texaco
relationship was consistent with the contract, Ronald Ratcliff,
Danos & Curole’s account manager and former personnel
coordinator, answered as follows:
Q: My question was: Is your understanding of the
relationship, as it worked day by day in the relationship with
Texaco, consistent with what you just read?
A: Well, can I see it again?
Q: Yes, sure.
A: I mean, it’s a tough question because, I mean, they
[Texaco] have full voice in discharge. They have full voice in
compensation. They have full voice in supervision. I mean,
they tell us when they don’t want an employee. It’s not us
telling them we don’t think he should work out there for you
4a-8
no more. It’s them telling us when our employees should get a
raise. This says one thing, but some things happen differently.
Just because they’re under Texaco’s supervision, they see
their job daily performance. That says that, but you know, I
can’t give a raise unless Texaco approves it. .
* %*
Q: And it says as such, Texaco will have no voice in the
discharge. You say they have all the voice in the discharge?
A: Yes. If they don’t want somebody, then we replace
them.
Q: They tell you ali to replace them?
A: That’s our business.
Q: What would happen, if Texaco didn’t like what an
employee was doing, they would tell you and it would be your
company’s job to discharge them?
A: Yes.
Q: What about supervision or control of the contractor's
employees?
A: What you mean by supervision?
Q Supervision and control.
A: Every field has a field foreman.
Q And the filed foreman is an employee for whom?
A: Texaco.
(See Def.’s Mem. Supp. Suram. J. Ex. E at 14-16.) Thus, in
reality, Texaco had control of discharge and compensation
and Danos & Curole employees were under Texaco’s
4a-9
supervision. (See id.) Even plaintiff himself testified that he
received his daily instructions from Texaco personnel. (See
id. Ex. D at 51.) Like Melancon, Texaco told plaintiff “what
work to do, and when and where to do it.” 834 F.2d at 1245.
The Court thus finds that the contract provision was altered
by the reality at the work site, and the provision does not
prohibit a finding of borrowed employee status.
4. Did the Employee Acquiesce in the New Work
Situation?
“The focus of this factor is whether the employee was aware
of his work conditions and chose to continue working in
them.” Brown, 984 F.2d at 678. Here, plaintiff worked on the
Texaco platform for two years without lodging any
complaints about his working conditions. See Brown, 984
F.2d at 678 (one month sufficient time to appreciate new
work conditions) ; Cobb v. SIPCO Servs. & Marine, Inc., 1997
WL 159491 (E.D. La. 1997) (Vance, J.) (two months).
Moreover, plaintiff knew that his nominal employer, Danos &
Curole, was a contract company that loaned temporary
employees to other companies and that Texaco was one of
those companies. (See Def.’s Mem. Supp. Mot. Summ. J. Ex.
D at 39.) Plaintiff understood that the West Cameron 643A
was owned by Texaco and that Texaco personnel instructed
plaintiff on what to do while working on this platform. (See
id. Ex. D at 39 & 51-52.) In fact, in his deposition plaintiff
himself characterized his job as “working for Texaco.” (See
id. Ex. D at 45 & 48.) Plaintiff shared the same duties as
Texaco operators and participated in production meetings
conducted by Texaco personnel. (See id. Ex. B.) This factor
indicates that plaintiff acquiesced in the Texaco work
arrangement and favors borrowed employee status.
4a-10
5. Did the Original Eriployer Terminate his Relationship
with the Employee?
This factor does not require the lending employer to sever
completely its relationship with the employee, because such a
requirement would effectively eliminate the borrowed
employee doctrine. See Melancon, 834 F.2d at 1238; Capps,
784 F.2d at 617-18. Rather, the court examines the lending
employer's relationship with the -employee whiie the
borrowing occurs. See Capps, 784 F.2d at 618. Danos &
Curole hired plaintiff and gave him the Texaco assignment;
however, Danos & Curole’s personnel coordinator testified
that he has no knowledge regarding plaintiffs daily work
performance and responsibilities. (See id. Ex. E at 71.)
Plaintiff admitted that Texaco personnel assigned daily tasks
to plaintiff. (See id. Ex. D at 51-52.) Plaintiff has submitted no
evidence that the contact between plaintiff and Danos &
Curole while plaintiff was on the job site consisted of more
than occasional visits and phone calls from Danos & Curole.
Based on this evidence, the Court finds that factor five
weighs in favor of borrowed employee status.
6. Who Furnished the Tools and the Place of
Performance?
Texaco furnished plaintiff with the place of employment,
meals, lodging, and transporiation to and from work. Texaco
also provided plaintiff with the tools he needed on the job.
(See id. Exs. B.) There is no evidence that Danos & Curole
provided plaintiff with any tools needed to perform his work
assignments. This factor also favors borrowed employee
status.
4 Was the New Employment Over a Considerable
Length of Time?
The Fifth Circuit has held that when “the length of
employment is considerable, this factor supports a finding
that the employee is a borrowed employee, “ but that “the
converse is not true.” Capps, 784 F.2d at 618. The Capps court
4a-11
found this factor neutral on borrowed employee status when
the employee's injury occurred on the first day of the job. See
id. Here, plaintiff had worked for Texaco for approximately
two years prior to the alleged accident. The Court finds that
the length of employment favors borrowed employee status.
8. Who Had the Right to Discharge the Employee?
While Texaco did not have the right to terminate plaintiff's
employment with Danos & Curole, it did have the right to
terminate his relationship with Texaco. (See Def.’s Mem.
Supp. Mot. Summ. J. Ex. E 14-16.) This fact favors borrowed
employee status. See Melancon, 834 F.2d at 1216; Capps, 784
F.2d at 618.
9. Who Had the Obligation to Pay the Employee?
Finally, with respect to the last factor, Danos & Curole paid
plaintiff with funds received from Texaco. Danos & Curole
billed Texaco for the hours plaintiff worked and would in
turn issue a paycheck to plaintiff. (See Def.’s Mot. Summ. J.
Ex. B.) The Fifth Circuit has consistently held that this type
of payment arrangement weighs in favor of a finding of
borrowed employee status. See Melancon, 834 F.2d at 1246;
Capps, 784 F.2d at 618.
III. CONCLUSION
For the foregoing reasons, the Court finds no factual dispute
as to the Ruiz factors and that, as a matter of law, the facts
overwhelmingly support a finding that plaintiff was Texaco’s
borrowed employee. As such, the LHWCA bars plaintiff's suit
against Texaco. The Court hereby GRANTS defendant’s
motions for summary judgment and dismisses plaintiff's
claims against Texaco with prejudice.
New Orleans, Louisiana, this 5th day of June, 2001.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
5a
TEXACO INC.
MASTER WORK AGREEMENT WITH
INDEPENDENT CONTRACTOR
This Agreement, made and entered into in New
Orleans, Louisiana, dated as of the 23rd day of March 1997, by
and between Texaco Inc., a Delaware corporation with
offices in New Orleans, Louisiana (hereinafter referred to as
“Texaco”), and Danos & Curole Marine Contractors, Inc., a
Louisiana corporation, with off ices in Larose, Louisiana
(hereinafter referred to as "Contractor").
1. WORK TO BE PERFORMED; MATERIAL, EQUIPMENT,
AND SERVICES TO BE PROVIDED; CONTRACTOR'S
WARRANTY; CONTRACTOR'S STATUS; AND
SUBCONTRACTORS
A.
Work To Be Performed. In consideration of the
payments to be made pursuant to Paragraph 2,
Contractor promises and agrees to perform the
following work: Roustabouting, construction work
and general oilfield maintenance at Texaco’s
various leases and/or properties in what is known
as Texaco’s New Orleans Operations Division. Work
is to be performed as set forth in Exhibit "A"
attached hereto and made a part hereof; said work
shall be more fully described in Texaco’s specifica-
tions and/or written instructions, as provided from
time to time during Contractor’s performance, to be
attached hereto as Exhibit “B” and made a part
hereof. Unless otherwise agreed to in writing by an
authorized representative of Texaco, all, work
which Contractor agrees to perform and/or
performs for Texaco's New Orleans Operations
Division shall be performed according to the terms,
conditions, and provisions set out herein, if and
when said work is directed to be performed from
time to time by Texaco.
6a
Material, Equipment, and Be Provided. Contractor
agrees, at its sole cost, to purchase and deliver or to
provide all materials, equipment, and services
reasonably necessary to perform Contractor’s
obligations under this Agreement except as
provided by Texaco under Article 6.D., “Material,
Equipment and Services To Be Provided”.
Contractor’s Warranty. Contractor warrants that all
work performed under this Agreement shall be
performed in a good and workmanlike manner, that
all materials and equipment furnished by Contractor
shall be of good and merchantable quality, and
unless otherwise specified in writing by Texaco
shall be new and not previously used, and that all
work, materials and equipment furnished by
Contractor shell be free of defect.
Contractor's Status. The parties acknowledge that
Contractor is an independent Contractor. As such,
Texaco shall have no voice in the discharge,
supervision, or control of Contractor's employee,
representatives or subcontractors or in fixing their
number, compensation or hours of service. Texaco
shall have no right to control the manner of
Contractor’s performance but Texaco and its
representatives shall have the right to inspect the
work performed and to make suggestions and
comments thereon.
Subcontractors. If Contractor shall cause any part
of the work hereunder to be performed by a
subcontractor, the provisions of this Agreement
shall apply to such subcontractor and his or its
employes in all respects as if he or it were employes
of Contractor, and Contractor shall be liable for the
work of the subcontractor accordingly. Prior to
entering into any agreement with any subcontractor
to provide any services and/or materials in
connection with the work to be _ performed
7a
hereunder, Contractor shall submit for Texaco’s
review and written approval a general list of the
major subcontractors which contractor might utilize
in the performance of the work. Contractor shall be
free to use any subcontractor not objected to by
Texaco. Texaco's approval of or failure to reject any
subcontractor shall not affect the provisions of this
Agreement.
2. CONSIDERATION PAYABLE TO CONTRACTOR TERMS
OF PAYMENT AND TIME FOR PAYMENTS
A. In consideration of the performance undertaken by
Contractor, Texaco shall pay to Contractor either:
(1) An amount determined in accordance with the
Contractor’s Rate Schedule dated January 11,
1982 and all amendments thereto, marked by
Texaco as Exhibit “A” and bearing the effective
date of the Agreement, or the date on which
Texaco accepts any amendments thereto.
(2) A fixed turnkey sum agreed upon in writing,
which may include, but is not limited to bid and
award documents. Additions, deletions and or
changes to the fixed price shall be made in
accordance with the provisions of Article 7.B.
of the Agreement, unless expressly modified by
said written documents.
CONTRACTOR SHALL GIVE TEXACO THIRTY (30) DAYS
PRIOR WRITTEN NOTICE OF ANY PROPOSED CHANGE IN
CONTRACTOR’ S RATE SCHEDULE. IN NO EVENT SHALL
ANY INCREASE IN CONTRACTOR'S RATE SCHEDULE BE
EFFECTIVE UNLESS AND UNTIL THE CHANGE IS
APPROVED IN WRITING BY TEXACO AND THIS
AGREEMENT PROPERLY AMENDED .
B. Terms of Payment. Texaco shall pay to Contractor
the consideration described in Paragraph ZA as
follows:
Contractor shall furnish work tickets EACH DAY to
Texaco’s representative for his verification
reflecting agreement number, location of job,
description of equipment, materials or supplies
furnished, names of Contractor’s employes, and the
number of hours worked, in a form of work ticket
acceptable to Texaco. All work tickets shall be
prepared in_ strict accordance with the
classifications contained in the Contractor’s Rate
Schedule, Exhibit “A”. In no event shell the repre-
sentative’s signature indicate an acceptance of any
terms or conditions which may be contained on
Contractor's work ticket.
All Contractor's invoices for work performed for Texaco shall
be rendered as promptly and currently as Contractor's
established procedures shall permit. Contractor's invoices
must be rendered in accordance with the terms and
provisions of this Agreement, and bearing the Agreement
Identification Number, and be in sufficient detail to permit
ready identification with Contractor's daily time sheets or
work tickets and for processing against and comparison with
the Agreement and the current contractor’s Rate Schedule,
Exhibit “A”.
Should the work be authorized on a firm turnkey price basis,
payment by Texaco for material, equipment, fabrication
and/or installation shall be made in the following manner
after Texaco’s approval of invoices covering these items:
Texaco shall pay 85% of the amount of these invoices within
thirty (30) days after such billing and approval of such —
invoices. The remaining 15% shall be paid after final
acceptance (to be given by Texaco in accordance with the
provisions of this Article 2.B. and Article 6.E., “Acceptance of
Work”) of all items covered by the Agreement. At no time
during the duration of the work shall Contractor be paid an
amount greater than 85% of the total Agreement price agreed
9a
upon, invoices shall be submitted in the following manner:
(1) Major Equipment and Materials - Upon receipt from
vendor.
(2) Fabrication - Monthly for that portion considered
completed by Texaco’s representative and Contractor
during the invoice period. :
(3) Installation - Monthly for that portion considered
completed by Texaco’s representative and Contractor
during the invoice period.
After final acceptance of the contracted work (to be given in
accordance with Article 6.E., “Acceptance of Work”), final
settlement shall be made and all money due Contractor shall
be paid by Texaco upon completion of the following:
(1) Contractor has_ provided Texaco with written
certification and evidence of Contractor’s compliance
with all existing laws and/or regulations of all
governmental and municipal bodies with respect to the
work performed hereunder.
(2). Contractor has provided Texaco with satisfactory
evidence of due payment of all bills, claims, charges
and obligations for labor, materials or services rendered
or incurred in connection with this Agreement.
(3) Contractor has provided Texaco with satisfactory
evidence of the fact that no liens have been filed or
recorded against Texaco, Texaco’s property or the
property subject to this Agreement.
(4) Contractor has provided Texaco with satisfactory
evidence of Contractor’s settlement of any and all
claims for damages, injuries or death arising out of the
work performed under this Agreement, including,
without limitation, any personal injury claims.
10a
(5) Contractor has provided Texaco a release by an officer
of the company, in authentic form, releasing Texaco, its
officers, agents, employee and persons for whom
Texaco is responsible from any and all claims of the
Contractor arising under this Agreement.
Payment by Texaco of any monies to Contractor for
completion of portions of work shall not amount to nor be
construed as acceptance of such work or materials for which
said monies are paid, nor shall such payment amount to the
release of any obligations of the Contractor or a waiver by
Texaco of any of its rights under this Agreement.
C. Time For Payments. Except where otherwise
provided herein payments to be made under the
terms of this Agreement shall be made WITHIN
THIRTY (30) DAYS AFTER TEXACO HAS
RECEIVED AN INVOICE, in proper form,
evidencing that amounts are due as well as
Contractor's written verification, supported by
proper evidence, that no liens, claims, privileges, or
liabilities exist with respect to the work performed,
and Contractor’s written promise to satisfy or
discharge any such lien, claim, privilege, or liability
arising out of Contractor’s work, within five (5) days
of the receipt of a written demand by Texaco. No
partial payment made by Texaco shall be construed
or deemed to be an acceptance of any work
performed.
3. TIME FOR PERFORMANCE AND AGREEMENT TERM
This Agreement shall be effective as of the date above
stated and shall remain in effect until cancelled by either
party upon giving the other party ten (10) days prior
written notice thereof. Should Texaco elect to authorize
Contractor to perform work under this Agreement, the
time of performance shall be that specified by Texaco or
agreed upon by the parties. This Agreement cancels and
supercedes Agreements with Independent Contractor
lla
No. H-83-04 dated February 1, 1983 and No- MC-5-82
dated January 13, 1982.
4. RISK ALLOCATION, IDEMNITY, FORCE MAJEURE,
INSURANCE, POLLUTION CONTROL
A. Risk Allocation. Contractor agrees that it shall bear
the risk of loss, destruction, injury or damage to the
object of work to be performed hereunder until
such time as Texaco has, in writing, unconditionally
accepted Contractor’s work and all of the
components of that work.
The provisions of this Article 4.A. shall not apply
when the extent of the work performed by
Contractor hereunder is solely the maintenance,
replacement, repair or salvage of equipment already
owned or leased by Texaco and located on Texaco’s
premises at the time of the work.
B. Indemnity.
(1) Contractor covenants and agrees to indemnify,
defend, and hold Texaco, its subsidiaries and
affiliated companies, their agents, employes, and
persons for whom each is responsible (hereinafter,
collectively and individually, called “Texaco”) free
and harmless from and against any and all actions,
causes of action, claims, costs (including
attorney's fees and court costs), damages,
judgments or liabilities in connection therewith
which may be asserted by Contractor, its agents,
employes, subcontractors and persons for whom
Contractor is responsible (hereinafter, collectively
and individually, called “Contractor), Texaco’s
agents, employes and persons for whom Texaco is
responsible, or any third parties, on account of
personal injury or death, or property damage
caused by, arising out of, or in any way incidental
to, or in connection with the performance of the
(2)
12a
work hereunder, whether such personal injury or
death or property damage was caused by
Contractor’s sole fault or liability, the concurrent
fault or liability of the Contractor and Texaco, or
the sole fault or liability of Texaco, whether such
fault or liability is based on a theory of negligence,
strict liability, or a combination thereof.
In the event that this Contract is subject to
Louisiana Revised Statute 9:2780 as enacted by the
Legislature of Louisiana, and so long as that
Statute is in force, then;
a. Contractor covenants and agrees to fully
indemnify, defend and hold Texaco, its
subsidiaries and affiliated companies, their
agents, employes, and persons for whom each
is responsible (hereinafter, collectively end
individually, called “Texaco”) free and
harmless from and against any and all actions,
causes of action, claims, costs (including
attorney’s fees and court costs), damages,
judgments or liabilities in connection
therewith which may be _ asserted by
Contractor, its agents, employes,
subcontractors and persons for whom
Contractor is responsible (hereinafter,
collectively and individually, called
“Contractor”), Texaco’s agents, employes, and
persons for whom each is responsible, or any
third parties on account of death or personal
injury of any person, caused by, arising out of,
or in any way incidental to, or in connection
with the performance of the work hereunder,
except that if Texaco shall be solely at fault or
liable, whether under a theory of negligence,
strict liability or combination thereof, in
factually and proximately .causing the
particular death or injury, then this indemnity
shall not apply. In the event that Contractor
13a
and Texaco shall be concurrently at fault of
_liable, whether under a theory of negligence,
strict liability or combination thereof, then
Contractor shall indemnify, defend and hold
Texaco free and harmless from and against
any and all actions, causes of action, claims,
costs (including attorney’s fees and court
costs), damages, judgments or liabilities
except to the extent of Texaco’s comparative
fault or liability, whether such fault or liability
is based on a theory of negligence, strict
liability, or a combination thereof.
b. Contractor covenants and agrees to fully
indemnify, defend and hold Texaco, its
subsidiaries and affiliated companies, their agents,
employee, and persons for whom each is respons-
ible (hereinafter collectively and_ individually
called “Texaco”) free and harmless from and
against any and all actions, causes of action,
claims, costs (including attorney's fees and court
costs), damages, judgments or liabilities arising
out of any injury, damage or effect other than
those described in Paragraph “a.” hereof, including
such injury, damage or effect caused by the sole
fault or liability of Texaco, whether such fault or
liability is based on a theory of negligence, strict
liability or combination thereof,
(3) In the event that any Paragraph or portion of this
indemnity is found by a court of competent jurisdiction
to be invalid or unenforceable, then that Paragraph or
portion as the case may be shall be stricken as if it were
never contained in this Agreement but the remaining
provisions of that Paragraph and of this Agreement
shall remain in full force and effect.
(4) Contractor further agrees to indemnify, defend, and
hold Texaco, its subsidiaries and affiliated companies,
their agents, employes, and persons for whom each is
(5)
l4a
_ responsible harmless from any claim, demand, action,
or cause of action based on or arising out of the
infringement of any patent.
Contractor agrees to indemnify and hold Texaco, its
subsidiaries and affiliated companies, harmless from
any claims, costs, demands, fines, causes of action, and
losses arising out of or connected with any failure or
violation by Contractor while performing under this
Agreement of any laws, standards, regulations and
orders of all government and municipal bodies having
jurisdiction, including, without limitation, those
described in Exhibits “C” and "D", entitled “Contract
Supplement” and ‘“Nondiscrimination in Outer
Continental Shelf Contracting ¢ 30 CFR 270”,
respectively, attached hereto and made a part hereof.
Notwithstanding any other provision of this Agreement,
Contractor covenants and agrees that its obligations,
duties and liabilities under Paragraph 4.B of this
Agreement entitled “Indemnity” are independent of and
in no way connected with any other provision of this
Agreement, including but not limited to Paragraph 4 .D
entitled “Insurance”, and the indemnities and hold
harmless granted under Paragraphs 4.E and 5.B,
respectively entitled “Pollution Control” and “Permits
and Taxes”, and accordingly shall not be limited,
restricted, or in any way affected by any other provision
of this Agreement, including but not limited to
Paragraphs 4.D., 4.E. and 5.B. hereof.
Force Majeure. In the event that performance under
this Agreement shall become impossible because of the
occurrence of an event not within the control of any
party to this Agreement and not contemplated by the
parties then performance under this Agreement shall be
excused only during the time that performance is made
impossible. Texaco shall have the right to terminate this
Agreement if performance is made impossible for more
than ten (10) days so long as Texaco shall pay to
15a
Contractor the reasonable value of work already
performed.
Insurance.
Contractor shall maintain, at its sole cost, and shall
require any subcontractors it may engage to maintain, at
all times while performing work hereunder, the
insurance coverage, where applicable, set forth below
with companies satisfactory to Texaco and endorsed to
cover operations in the Gulf of Mexico, Atlantic Ocean,
and all other operations to be performed under this
Agreement. A certificate naming Texaco, its subsidiaries
and affiliated companies as additional insured and
evidencing the Comprehensive General Liability and
Excess Liability coverages specifically quoting the
indemnification provision set forth in this Agreement,
shall be delivered tc Texaco immediately upon
execution of this Agreement. Such certificate shall
provide that any change restricting or reducing coverage
or the cancellation of any policies under which
certificates are issued shall not be valid as respects
Texaco’s interest therein until Texaco has received 30
days notice in writing of such change or cancellation.
Further, it shall state that it is primary coverage and not
concurrent or excess over other valid insurance which
may be available to Texaco. The certificate shall also
state on its face the basis for each type of coverage.
Should any coverage be provided on a claims made
basis, the policy shall include at least a two (2) year
extended reporting period endorsement, and shall not
contain a “prior acts” exclusion. Contractor further
agrees to comply with all terms and conditions of the
insurance contract.
(1) Workers’ Compensation Insurance as required by
laws and regulations applicable to and covering
employes of Contractor engaged in_ the
performance of the work under this Agreement.
16a
(2) Adequate Employers’ Liability Insurance protecting
Contractor against common law liability, in the
absence of statutory liability, the employe bodily
injury arising out of the miaster-servant
relationship; and having the following
endorsements;
a. To provide against liability under the U. S.
Longshoremen’s and- Harbor Workers
Compensation Act, as amended, including
protection with respect to the extension of
this Act under the Outer Continental Shelf
Land Act.
b. To provide against liability under the “Jones
Act”, Death on the High Seas Act and the
General Maritime Law.
c. To provide that a claim “in rem” shall be
treated as a claim against the employer.
(3) Adequate Comprehensive General Public Liability
Insurance providing coverage for all operations
required to fulfill this Agreement, including
products/completed operations. Territorial Units shall
include Gulf of Mexico and Atlantic Ocean operations.
This policy shall cover, among other risks, the contrac-
tual liability assumed under the indemnification
provision set forth in this Agreement.
(4) Adequate Automobile Liability Insurance, including
non-owned and hired vehicle coverage.
(5) Liability insurance over Comprehensive General
Liability and Comprehensive Automobile Liability
coverages afforded by the primary policies described
above, with adequate limits in excess of the specified
limits.
(6) Protection and Indemnity Insurance and Full Hull
17a
Insurance on all vessels and other watercraft owned,
chartered or operated by Contractor.
(7) Full Machinery and Equipment Insurance covering
Contractor's equipment and appliances used in
connection therewith in amounts sufficient to cover the
replacement value of said equipment and appliances
with proper endorsements providing appropriate
navigation limits.
Each policy shall also be endorsed to provide waiver of
subrogation rights in favor of Texaco, its subsidiaries and
affiliated companies and all other parties owning an interest
in the property on which work covered by this Agreement is
to be performed.
Contractor agrees to require all subcontractors to carry
adequate Marine Insurance on service vessels furnished by
such subcontractors and to furnish Texaco schedules of this
insurance coverage.
Failure of the Contractor to keep the required insurance
policies in full force and effect during the work covered by
this Agreement shall constitute a breach of this Agreement
and Texaco shall have the right, in addition to any other
rights, to immediately cancel and terminate this Agreement
without further cost to Texaco.
Nothing contained in these provisions relating to coverage
and amounts set out herein shall operate as a limitation of
Contractor's liability in tort or contracted for under the terms
of this Agreement.
In the event that this Agreement is subject to Louisiana
Revised Statute 9:2780 enacted by the Legislature of
Louisiana, and so long as that statute is in force, then
Contractor shall not be required to name Texaco, its
subsidiaries and affiliated companies, as an additional
insured nor shall Contractor be required to obtain a waiver of
subrogation endorsements as to Texaco, its subsidiaries and
18a
affiliated companies. Notwithstanding the foregoing, Texaco
its subsidiaries and affiliated companies, shall have the right
to contact Contractor’s insurer and purchase from that
insurer additional insured and waiver of subrogation
endorsements to Contractor’s policy. Contractor agrees to
cooperate with Texaco in dealing with Contractor’s insurer.
E.
Pollution Control. Pollution Control shall be maintained
in connection with all operations by Contractor.
Additions or alterations to existing equipment used by
Contractor in the performance of this Agreement shall
be made by Contractor at its sole expense and shall
incorporate any equipment necessary to maintain the
Plant and/or Rig, and/or equipment, vehicles and
adjacent area free of all hazardous or harmful emissions,
spillage, discharge and other pollutants, and to avoid any
such conditions from arising in violation of local, state or
federal laws and regulations.
If any emitting, spilling, venting, discharging, disposal or
loss of any hazardous or harmful substances, air
contaminants, and/or pollutants of any nature or kind
(referred to hereinafter as “discharges”) which are in
violation of local, state and federal laws and regulations
or standards occur as a result of the performance of this
Agreement by Contractor its agents, employes,
subcontractors or persons for whom it is responsible,
Contractor shall immediately proceed, at its sole costs
and expense, to stop or abate such discharges, and
hereby further agrees to indemnify, protect and hold
Texaco its subsidiaries and affiliated companies,
harmless therefrom. Accordingly, Contractor shall be
fully responsible to Texaco and any and all, parties for
any and all fines, costs and losses of any kind in any way
connected with such discharges, including cost of
cleanup operations and installation of and repair of
necessary equipment. Contractor agrees to indemnify
and hold Texaco, its subsidiaries and affiliated
companies, their agents, and employes harmless from
and against any and all expenses and costs, including
19a
costs of court, attorney’s fees, and penalties or fines
imposed by any law, rule, standard, or regulation in any
way connected with the occurrence of the discharges.
Contractor agrees that it shall comply, at its sole cost
and expense, with any and all laws, rules, regulations,
orders, and standards promulgated in connection with
and applicable to the performance and execution of all
work contracted for under this Agreement; and further
agrees that it shall comply with any and all local, state
and federal laws, regulations, standards, and orders of all
state and federal political subdivisions and agencies,
applicable to the controlling, regulating and prevention
of pollution, disposal and discharges. Additionally,
Contractor agrees to abide by the terms set forth on
Exhibit “E” attached hereto and made a part hereof.
CONTRACTOR’S OBLIGATIONS IN PERFORMING
UNDER THIS AGREEMENT
A. Reliance on _ Prior’ Inspection. Contractor
acknowledges that all obligations undertaken and all
promises made are based on inspections and
investigations made by Contractor and_ that
Contractor understands the nature of the work to be
performed, the obligations undertaken, and the
promises made.
B. Permits and Taxes. Contractor agrees to procure all
permits and licenses required to perform the work
hereunder. Contractor further agrees to pay all
taxes which may become due as a result of the work
performed. Contractor accepts responsibility and
liability for payment of federal and state payroll
taxes and for contributions for unemployment
insurance, old age pensions, annuities, retirement,
and other benefits, imposed or assessed under any
provisions of any law and measured by wages,
salaries or other remuneration paid or payable by
Contractor to employes of Contractor engaged in
20a
said work or in any operation incidental thereto,
and agrees that each subcontractor shall accept the
same responsibility and liability with respect to
employee of such subcontractor. Contractor agrees
that Contractor and all subcontractors shall enter
into any agreement prescribed by any federal or
state governmental body to effectuate the purposes
hereof, and shall comply with all regulations
respecting assumption of liability for such taxes and
contributions. Contractor further agrees to
indemnify and save Texaco harmless against all
claims, taxes, penalties, interest, and costs which
,au be made or assessed against Texaco under any
such law, rule, or regulation with respect to
employes of Contractor and of any subcontractor.
Protect Work. Contractor agrees to adequately
protect all work and Texaco’s property and to take
steps to protect all persons and Texaco’s property
from death, injury, or damage arising out of Con-
tractor’s work and to provide and maintain facilities
necessary to insure safe working conditions or in |
accordance with applicable governmental authority.
Compliance. Contractor agrees to comply with all
applicable regulations, ordinances, and rules in
performing hereunder. Contractor further agrees to
comply with any rules in existence or promulgated
during Contractor's performance and imposed by
Texaco which is intended to minimize risks of
death, injury, or property damage reasonably related
to Contractor’s work. Contractor also agrees to
comply with those statutes, rules, and orders
described on Exhibits “C”, "D" and "F" entitled
"Contract Supplement” and “Nondiscrimination in
Outer Continental Shelf Contracting - 30 CFR 270”,
and “Louisiana Contractors’ Licensing Law’,
respectively, attached hereto and made a part
hereof.
2la
Failure of Contractor to Perform. Contractor
authorizes Texaco to deduct from any amount
payable to Contractor (whether or not arising out of
this Agreement) all amounts which may be payable
by Contractor to Texaco, and also all amounts for
which Texaco may become liable to third parties by
reason of Contractor's acts in performing or failing
to perform its obligations under this Agreement. In
the event that any claim is made by a third party, the
amount or validity of which is disputed by
Contractor, or any indebtedness exists which may
appear to be the basis for a claim of lien, Texaco
may withhold from any payment due, without
liability for interest, an amount sufficient to cover
such claim. The failure of Texaco to exercise this
right to deduct or to withhold shall not affect the
obligation of Contractor to ,protect Texaco as
provided herein.
Contractor agrees that if it shall fail to work for a
period of five (5) consecutive days or if Contractor
shall breach any provision of this Agreement,
Texaco shall have the right (without first giving
notice of breach or demanding performance) to
declare this Agreement breached and to seek any
and all remedies available to Texaco. Texaco shall
have the right to remove Contractor from the job
and to act as Texaco sees fit in remedying
Contractor’s breach. The failure of Texaco to assert
a breach for the failure of Contractor to perform at
any time shall not be construed to be a waiver of
Texaco’s rights hereunder.
. Assurances - At Texaco's sole discretion, and as a
prerequisite to the commencement of any work
under this Agreement, Contractor may be required
to obtain a Performance and Payment Bond (in an
amount acceptable to Texaco and with a surety
company selected by Contractor and acceptable to
Texaco), an irrevocable letter of credit in favor of
G.
222
Texaco (in an amount and form and with terms
acceptable to Texaco), or any other assurance
acceptable to Texaco. Texaco agrees to reimburse
Contractor for the cost of obtaining the assurance.
Subsidiaries - Contractor agrees to perform work, if
and when work is directed to be performed from
time to time and agreed to by Contractor, under the
terms and conditions of this Agreement, for the
following Texaco Inc. subsidiaries:
Texaco Producing Inc.
Texaco Oils Inc.
Getty Oil Company
all Delaware corporations.
Contractor further agrees that the above-named
subsidiaries are separate and distinct parties to this
Agreement, and in this regard, wherever the word
“Texaco” appears in this Agreement, and including
but not limited to Paragraphs 4.B., 4.D. and 4.E., it
shall be considered to mean the party for whom the
work is being performed whether Texaco Inc. or the
above-named subsidiaries. Accordingly, Contractor
agrees that the rights, duties and obligations of
Texaco Inc. and each of the above-sated
subsidiaries to the Contractor, and the rights, duties
and obligations of the Contractor to Texaco Inc. and
each of the above-named subsidiaries are separate
and distinct.
23a
Contractor further agrees to provide each of the
above- named subsidiaries with additional insured
and waiver of subrogation endorsements to the
same extent that these endorsements were provided
Texaco Inc. in accordance with Paragraph 4.D.
Contractor also agrees to make billings in the name
of the party for whom the work was performed.
The representative of Texaco Inc. designated in
Paragraph 7.H. shall also be the designated
representative of each of the above-named sub-
sidiaries.
Liens Attachments or Other Encumbrances _
Contractor shall not at any time or times during the
term hereof or any time thereafter suffer or permit
any lien, attachment, or encumbrance to be
imposed by any person, firm, or corporation upon
the work performed hereunder or Texaco’s land or
property or any portion of the site on which the
work hereunder is to be carried on by reason of any
claim or demand against Contractor or Contractor’s
agents, employes, subcontractors or other
representatives and any such lien, attachment, or
other encumbrance, until Contractor shall have
secured the release thereof, shall preclude any
claims’ or demands by Contractor for any payment
whatsoever under or pursuant to this Agreement
and in the event that the same shall not have been
removed within five (5) days after written notice by
Texaco, Texaco, at its option, may remove or
release the same and Contractor shall reimburse
Texaco for the cost of removal thereof including
any legal fees and expenses and interest at the rate
of ten (10) percent per annim from the date of
payment by Texaco. Contractor hereby agrees to
indemnify and hold harmless Texaco, its successors
and assigns, and any parties in contract herewith
from any and all damages, expenses, losses, costs
ws how re nye
24a
including, but not limited to, attorney's fees) which
the above named parties may suffer as a result of
any lien or attachment being imposed as a result of
the performance of this Contract.
This provision shall not be construed as a waiver of
liability of the Contractor and/or its surety under
any provision of this Contract.
6. TEXACO’S OBLIGATIONS IN PERFORMING UNDER
THIS AGREEMENT
A.
Cooperation. Texaco agrees to cooperate with
Contractor and to do all things necessary, within
Texaco’s ability, to assist Contractor in the required
contractual performance.
Designated Representative. Texaco has designated a
representative in Paragraph 7.H. who shall be
charged with the responsibility of receiving notices
on behalf of Texaco and of acting for Texaco under
this Agreement.
Texaco’s Liability. Texaco expressly limits its
liability to Contractor to the consideration set forth
in Paragraph 2.
Material Equipment_, and Services to be Provided.
Texaco shall notify Contractor of all materials,
equipment and services that Texaco elects to
provide on a job by job basis in conjunction with
Contractor’s work.
Acceptance of Work. Texaco shall give, unless
otherwise provided, a written acceptance of term
and fixed turnkey work performed hereunder upon
completion of the work by Contractor. Texaco shall
make an acceptance inspection upon completion of
the work for Contractor’s full performance and
compliance with the Agreement documents,
25a
including any drawings, specifications, and/or
project conditions that may be furnished by Texaco.
Said acceptance shall not be construed to be a
release of ANY GUARANTEES or obligations of the
Contractor or a waiver by Texaco of any of its right,
under this Agreement.
7. ADDITIONAL PROVISIONS
A. Right to Audit.
(1) Contractor shall maintain during the course of
the work, and retain for not less than two (2)
years after the end of the calendar year of final
completion thereof, complete and accurate
records of all of Contractor's costs and
documentation of items which are chargeable
to Texaco under this Agreement; and Texaco
shall have the right at any reasonable time
during said period and during normal business
hours to inspect and audit those records by
authorized representatives of its own or any
public accounting firm selected by it. The
records to be thus maintained and retained by
Contractor shall include (a) payroll records,
including social security numbers and labor
classifications, accounting for total time
distribution of Contractor’s employes working
full or part time on the work, as well as can-
celled payroll checks or signed receipts for
payroll payments in cash; (b) invoices for
purchases, receiving and issuing documents,
and all other unit inventory records for
Texaco’s stocks or capital items; (c) paid
invoices and cancelled checks for materials
purchased and for subcontractor’s and any
other third parties’ charges; and (d) all other
records required to verify the accuracy of
Contractor’s charges. If such audit should
reveal a discrepancy between the amount or
(2)
26a
value of materials and/or services billed to
Texaco and that which is evidenced by
Contractor’s books and records, Texaco shall
have the right to adjust its account with
Contractor, which adjustment may necessitate
a refund of funds disbursed to Contractor. If
Contractor fails to maintain or make available
such books and records as provided herein,
Texaco will not be liable for any charges
based on such costs unless Contractor
produces adequate proof thereof.
No director, employe or agent of Contractor or
of any subcontractor of Contractor shall give
to, or receive from, any director, employe or
agent of Texaco, directly or indirectly, any
payment, loan, service, elaborate
entertainment or travel, or gifts of other than
nominal value, in connection with the work or,
without Texaco’s prior written agreement,
enter into any business arrangement, directly
or indirectly,, with any director, employe or
agent of Texaco that might adversely affect
Texaco or the director’s, employe’s or agent’s
judgment on behalf of Texaco. Without
limiting any general audit rights above, Texaco
may audit pertinent records of Contractor and
any subcontractor or vendor in connection
with the work to be performed hereunder and
all transactions related thereto for the sole
purchase of determining whether there has
been compliance with this paragraph (2).
Texaco’s right to audit under this paragraph
shall be for a period of not less than two (2)
years after the end of the calendar year of final
completion of the work performed pursuant to
this Agreement. If Texaco is unable to gain
access to the pertinent records of any of
Contractor's subcontractors, or vendors,
Contractor will expand all reasonable efforts
27a
to assist Texaco in obtaining the information
from its subcontractors and vendors necessary
to complete an audit.
Extra Work. Texaco shall have the right to order extra
work or make changes by altering, adding to, or
deducting from the original scope of work agreed, but
no extra work or change shall be undertaken by
Contractor unless a written order has been obtained
from Texaco or a separate estimate in writing shall have
been submitted to Texaco by Contractor and agreed to
in writing by an authorized representative of Contractor
and Texaco. Said order or estimate shall state the
extension of time, if any, allowed and specifically
provide for payment and the terms of payment for said
extra work, which shall be either:
(1) A fixed turnkey sum agreed upon in writing before
the work is performed, or if it is impossible to
agree on a fixed turnkey sum, then,
(2) In accordance with the rates contained in
Contractor’s Rental Rate Schedule made a part of
this Agreement as Exhibit “A”. A daily statement of
extra work shall be delivered to Texaco in
accordance with the provisions of Article 1.A. of
this Agreement.
Conflicts. In the event that there is a conflict between
the provisions of this Agreement and the provisions of
any other writing, then the terms of this Agreement shall
control.
Assignability. The rights and obligations contained in
this Agreement shall not be assigned by either party
without the express written consent of the non-assigning
party being first obtained except that Texaco may assign
this Agreement to any of its subsidiary companies
without first obtaining that consent.
28a
No Oral Modification. No modification of this Agreement
and no authorization for extra or additional work or for
eliminations or changes in specifications shall be binding
on Texaco unless it is in writing and signed by the duly
authorized representative of Texaco.
Optional Termination. Texaco at its absolute
discretion, may, by written notice to Contractor
terminate and abandon the construction of facilities or
suspend work in progress. Upon such discontinuance or
suspension, Contractor shall be entitled to receive and
or retain all its reimbursable costs as reasonably needed
to terminate the work hereunder and turn it over to
Texaco. Contractor shall retain or be paid by Texaco
that portion of the fixed fee, if applicable, which is
reasonable and proportional to the work performed by
Contractor prior to the termination of work.
Safety. Contractor shall take all measures and
precautions necessary or proper to provide safe working
conditions and to prevent any accident in connection
with the performance of work hereunder. Contractor
shall have the sole responsibility for the safety of its
enployes and subcontractors, as well as_ their
performance in accordance with the appropriate safety
practices.
Contractor shall conduct the work in a safe and practical
manner and in accordance with all applicable
governmental laws, orders and regulations, including but
not limited to those contained in the Code of Federal
Regulations (specifically 30 C.F.R §142 - Workplace
Safety and Health), as well as those of the United States
Coast Guard, the Minerals Management Service, the
Occupational Safety and Health Act of 1970, and any
amendments thereto, as well as the guidelines, recom-
mended practices or standards published by and
customarily adopted by the industry, including but not
limited to the American Petroleum Institute and the
Independent Association of Drilling Contractors.
29a
H. Notices and Payments. Any general notices required to
be made under the terms of this Agreement shall be
deemed to have been made if mailed by Certified Mail,
return receipt requested, as follows:
To Texaco:
Texaco Inc.
Post Office Box 60252
New Orleans, LA 70160
Ann: Contract Administration Group
To Contractor:
Danos & Curole Marine Contractors, Inc.
Post Office Box 217
Larose, LA 70373
(504) 693-3313
Any specific notices and payments required to be made
under the terms of this Agreement should be made as
specified above to the Texaco office directing the work
as follows:
Harvey Office: Texaco Inc.
1036 Destrehan Avenue
Harvey, LA 70058
Attn: Mr. K. B. Wisdom,
District Manager
Morgan City Office: Texaco Inc.
1201 Brasher Avenue
Morgan City, LA 70380
‘Attn: Mr. C. D. Journey,
District Manager
New Iberia Office: Texaco Inc.
1329 Jane Street
New Iberia, LA 70561-0457
Attn: Mr. R. K. Thomas,
District Manager
IN WITNESS WHEREOF, the parties have set their
hands and seals the day and date first above written.
EXHIBIT “C”
CONTRACT SUPPLEMENT
This attachment is incorporated in and made a part of
Contract, dated March 23, 1987, between Texaco Inc.,
hereinafter called "Company" and Danos & Curole Marina
Contractors, Inc., hereinafter called “Contractor.”
EQUAL EMPLOYMENT OPPORTUNITY
During the performance of the contract described
above, Contractor agrees to the following additional terms
and conditions to the extent they may be applicable to the
work to be performed under such contract in accordance
with the provisions of the following described Executive
Orders, Acts, and implementing rules and regulations issued
thereunder.
A. E.O. 11246, as amended by E.O. 11375 (Race, Color,
Religion, Sex and National Origin)
1. If the contract is in excess of $10,000, the
Contractor agrees to comply with the provisions
of Section 202 of such Order (the “Equal
Opportunity Clause”), which clause is
incorporated herein by reference pursuant to the
regulations promulgated under such Order (41
C.F.R. Sec. 60-1.4(d).
2. If the contract is in excess of $10,000! the
3la
Contractor certifies that it does not maintain or
provide, nor will it maintain or provide for its
employes any segregated facilities at any of its
establishments, and that it does not permit nor
will it permit its employes to perform their
services at any location, under its control, where
segregated facilities are maintained.* Contractor
agrees that a breach of this certification is a
violation of the Equal Opportunity Clause of
Executive Order 11246. Contractor further agrees
that (except where it has obtained identical
certifications from proposed subcontractors for
specific time periods) it will obtain identical
certifications from proposed subcontractors prior
to the award of subcontractors exceeding $10,000
which are not exempt from the provisions of the
Equal Opportunity Clause; that it will retain such
certification in its files; and that it will forward
the prescribed notice to such _ proposed
subcontractors (except where the proposed
subcontractors have submitted identical
certifications for specific time periods.**
If the contract is in excess of $30,000 and the
Contractor has more than 50 employes, the
Contractor agrees (a) to file annually, on or
before March 31 of each year, (or within 30 days
aftet the award of such contract if act filed within
12 months preceding the date of the award),
complete and accurate reports on Standard Form
100 (EE0-1) with the appropriate governmental
agency, in accordance with the regulations issued
by the Secretary of Labor (41 C.F.R. Sec. 60-1.7),
and (b) to develop a written affirmative action
compliance program ffor each of its
establishments in accordance with the
regulations issued by the Secretary of Labor (41
C.F.R. Sec. 60-1.40).
E.O. 11701 (Section 402 - Veterans Readjustment Act of
Oe eeeeeaEeeeEeEeEeEeEeEeEeEeEEeEeEeEeEeEeeEeEeEEEeEeEeOo
32a
1974)
If the contract is in excess of $10,000, the Contractor
agrees to comply with the affirmative action clause and
regulations promulgated under such Order (41 C.F.R.
Part 60-250) which clause is incorporated herein by
reference pursuant to Section 60-230.22 of such
regulations.
E.O. 11758 (Section 503 - Rehabilitation Act of 1973)
If the contract is in excess of $2,500, the Contractor
agrees to comply with the affirmative action clause and
the regulations promulgated under such Order (41
C.F.R. Part 60-741), which clause is incorporated herein
by reference pursuant to Section 60-741.22 of such
regulations.
E.O. 11625 (Minority Business Enterprises)
1. If the contract is in excess of $10,000, the
Contractor agrees to use its best efforts to
provide minority business enterprises with the
maximum practicable opportunity to participate
in the performance of such contract to the fullest
extent consistent with the efficient performance
thereof (41 C.F.R. Sec. 1-1.1310-2(a)).
2. If the contract is in excess of $500,000, the
Contractor agrees to comply with the Minority
Business Enterprises Subcontracting Program
clause promulgated under such Order (41 C.F.R.
Sec. 1-1,1310-2(b)), which clause is incorporated
herein by reference.
E. Section 905 (Railroad Revitalization and Regulatory
Reform Act of 1976)
1. The Contractor agrees to comply with the
requirements of Title 49 C.F.R. 265 Subpart B of
33a
the regulations promulgated under such Act
regarding "Nondiscrimination in Federally
assisted Railroad Programs” and _ the
nondiscrimination clauses therein are
incorporated herein by reference.
2. If the contract is for $30,000 or more, ‘the
Contractor agrees to comply with and implement
the Affirmative Action Program established
pursuant to Section 265.11 of 49 C.F.R.
F. Public Law 95-507, Section 211, 15 U.S.C. Section 637
(Small Businesses and Small Socially and
Economically Disadvantaged Businesses)
1. If the contract is in excess of $10,000, the
Contractor agrees to use its best efforts to
provide small business concerns and small
business concerns owned and controlled by
socially and economically disadvantaged
individuals, as defined in 43 F.R. 35809, with the
maximum practical opportunity to participate in
the performance of such contract to the fullest
extent consistent with the efficient performance
thereof in accordance with the regulations
promulgated by the Office of Federal
Procurement Policy (OFPP), 43 F.R. 35809, dated
May 25, 1980, which are incorporated herein by
reference.
2. Negotiated Contracts. If the contract is in excess
of $500,000, the Contractor agrees to comply with
the small business and small disadvantaged
business subcontracting plan as set forth in 45
F.R. 35810, dated May 28, 1980, which are
incorporated herein by reference.
G. Executive Order 12138 (Women's Business Enterprises
Program)
a er eres
34a
1. If the contract is in excess of $10,000, the
Contractor agrees to use its best efforts to
provide women owned businesses, as defined at
45 F.R. 358-15, with the maximum practical
opportunity to participate in the performance of
such contract to the fullest extent consistent with
the efficient performance thereof, in accordance
with the regulations of the Office of Federal
Procurement Policy (OFPP) issued pursuant to
this Order and appearing at 45 F.R. 35814, dated
May 28, 1980, which are incorporated herein by
reference. :
2. Contracts over $500,000 or $1 Million for
construction of any public facility. If the contract
is in excess of $500,000 or $1 Million for
construction of any public facility, the Contractor
agrees to comply with the regulations
promulgated by the Office of Federal
Procurement Policy (OFPP) appearing at 45 F.R.
35815, dated May 28, 1980, which are
incorporated herein by reference.
ACCEPTED THIS 27 DAY OF MARCH, 1987.
Footnotes
* As used in this certification, the term “segregated facilities”
means any waiting rooms, work areas, rest rooms and wash
rooms, restaurants and other eating areas, time clocks, locker
rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas,
transportation and housing facilities provided for employes
which are segregated by explicit directive or are in fact
segregated on the basis of race, creed, color or national origin
because of habit, local custom or otherwise.
** The form of the prescribed notice is as follows: NOTICE
TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT
FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES.
35a
A Certificate of Nonsegregated Facilities as required by the
May 9, 1967 order on Elimination of Segregated Facilities by
the Secretary of Labor (32 Fed. Reg. 7439, May 19, 1967),
must be submitted prior to the award of a subcontract
exceeding $10,000 which is not exempt from the provisions of
the Equal Opportunity Clause. The certification may be
submitted either for each subcontract or for all subcontracts
during a period (i.e., quarterly, semiannually or annually).
Note: The penalty for making false statements in offers is
prescribed in 1§ U.S.C. 1001.
EXHIBIT “D”
NONDISCRIMINATION IN OUTER CONTINENTAL
SHELF CONTRACTING
30 CFR 270
This Exhibit is incorporated in and made a part of
Agreement No. NO-67-53 dated March 23, 1987, between
Texaco Inc. and Danos & Curole Marine Contractors, Inc.,
hereinafter called “Contractor."
During the performance of the contract described
above, Contractor agrees to the following additional terms
and conditions to the extent they may be applicable to the
work to be performed under such contract in accordance
with the provisions of the following described Title 30 of the
Code of Federal Regulations, Part 270.
If the contract is in excess of $10,000 the Contractor
agrees to comply with the requirements of Title 30 C.F.R. 270
regarding “Nondiscrimination in Outer Continental Shelf
Contracting,” effective June 21, 1985, and the non-
discrimination clauses* therein are incorporated herein by
reference.
ACCEPTED THIS 27DAY OF MARCH, 1987.
Footnotes
Oneoninget
ear cae BE
Re ea eerie Ss Te oe Oe eee ee
36a
*This Part provides that “(N)o contract or subcontract to
which this part applies shall be denied to or withheld from
any person on the grounds of race, creed, color, national
origin, or sex.”
EXHIBIT “E”
CERTIFICATE AND UNDERTAKING OF COMPLIANCE
WITH ENVIRONMENTAL LAWS
The undersigned (“Contractor”) hereby agrees and certifies
that:
1. No facility to be utilized by Contractor in the
performance of this Agreement is listed on the United
States Environmental Protection Agency List of Violating
Facilities. See Executive Order No. 11738 of September
12, 1973 and 40 C.F.R. 15.20.
2. Prompt written notification shall be given by Contractor
to Texaco Inc. of any communication indicating that any
facility is under consideration to be included on such
list.
3. All requirements of Section 114 of the Clean Air Act (42
U.S.C. 1857) and Section 308 of the Federal Water
Pollution Control Act (33 U.S.C. 1251), relating to
inspection, monitoring, entry, reports, and information
as well as all other requirements specified in said
Sections, and all regulations and guidelines issued
thereunder, shall be complied with.
4. The criteria and requirements listed above will be
included in all contractor’s subcontracts, and Contractor
will take such action as the Government may direct as a
means of enforcing such provisions. Contractor agrees
37a
to be responsible for ensuring that its subcontractors
comply with this provision.
Appendix
Appendix A
Order and Reasons entered on June 5, 2001, by
Honorable Sarah S. Vance, United States District
Judge
Appendix B
Judgment dated June 14, 2001, from the United States
District Court, Eastern District of Louisiana
Appendix C
Decision dated May 15, 2002, from the United States
Court of Appeals for the Fifth Circuit
Appendix D
Texaco, Inc.’s Master Work Agreement with
Independent
Contractor
Appendix E
Scott Nimelstein Deposition excerpts
Appendix F
Tommy L. Mathews, Jr. Deposition excerpts
Appendix 0
Ronald Ratcliff Deposition excerpts
Appendix F
Dary] Langlois Deposition excerpts
7 39a
CIVIL ACTION NO. 99-1456
SECTION "R"
MAGISTRATE (4)
The deposition of DARYL LANGLOIS was taken in the above-
entitled cause, pursuant to the following stipulation, before
Linda Brewer, Certified Court Reporter, in the offices of
Danos & Curole, 1602 Pinhook, Suite 301, Lafayette,
Louisiana, on the 14th day of August, 2000, beginning at 2;25
p.m.
A. Yes.
Q. And it was at that time that he requested you to try
and get him off of that rig?
A. He stated that he would like to have beer taken off of
the rig, yes.
Q. And isn’t it a fact that after that conversation, you
made some calls to try and get him taken off of the
rig?
A Normally we call Texaco to see where the
evacuation stands.
Q. Is it not a fact that you made a number of calls to the
Texaco dispatcher and were unable to reach him?
A. Something to that effect, yes. I mean, we could not
contact anybody because they were in evacuation.
Who was in evacuation?
Well, I'd imagine they were evacuating and they were
on the phones, just as we were.
Q Did you attempt to reach the dispatcher on a number
of occasions?
A Yes, I did.
Q And why couldn't you reach him?
I just - - I dont recall that far back. You know, I don't
know, to be honest with
4la
Q Your employees?
Yeah.
Q So you assumed that Phillip Allen was going to come in
with the evacuation of the other platforms?
A I assumed he was.
Q Was that the responsibility of Danos & Curole, or was
that the responsibility of Texaco?
MR. DABOVAL: Let me object. Lack of
foundation. He doesn’t know what the
contractual responsibilities are.
MR. WIEDEMANN: I didnt ask him
about contractual responsibilities.
MR. DABOVAL: Sure you did. You
asked him what their responsibilities were. It
had to come from somewhere.
MR. WIEDEMANN: (CONTINUING)
Q Can you answer the question?
A Repeat it.
Q Was it the responsibility of Danos & Curole or Texaco
to evacuate people from Texaco platforms?
A We had no - — we do not supply transportation to get
the people in.
SpE RT OR AI ot, LE
6
Oo - O& PY
42a
heard it, if anybody ever said it, if you saw anything in
writing. And my question is: To your knowledge, did
anybody in your company ever do that?
Not to my knowledge. And I don’t see how I would
even have that knowledge. That’s my point, I guess.
Well, whose knowledge would that be?
Whoever would do it. I mean, whoever would enter
into that. You’re asking me if I know. I don’t know.
Aren’t you a personnel supervisor?
Yes, I am - - or was.
You were in charge of personnel and when they went
and when they came back?
Yes, sir.
You were in charge of assigning personnel to rigs?
Yes.
And it’s your testimony that you don’t know anything
about any agreement that would permit Texaco to do
that insofar as your personal knowledge?
No.
Do you know of any employee, and more particularly
Phillip Allen, that ever signed any written document
or granted any verbal authority that they could be - -
or he could be designated to stay on a platform during
a hurricane or a storm?
No.
You recognized from your discussion with Mr. Allen
43a
that it was, in fact, a hazardous circumstance to be
working on the Plus-10 deck?
If the waves were going over the Plus-10 deck?
Yes. How far is the Plus-10 deck above the surface of
the sea; do you know?
Never been out there.
But if the waves were going over the Plus-10 deck,
you recognized that that would be a hazardous
circumstance for your employee to work under?
Yes.
Did Danos & Curole have any supervisor out there to
tell Mr. Allen what he should or should not do vis-a-
vis the work on the rig?
Not out there, no.
44a
Sigur, the Texaco supervisor?
MR. DABOVAL: Let me object. You
don’t know what Mr. Sigur was doing out
there. You don’t even know his position.
MR. WIEDEMANN: (CONTINUING)
Q You can answer the question. —
A I would have expected Phillip to know, after having
conversations with me, to stay inside.
Q That wasn’t my question. My question was: Would you
expect _ _ I'm not talking about the storm. I'm asking
you a question. Would you expect Mr. Allen on a day-
by-day and hourly basis to take directions and
instructions from Mr. Sigur, the Texaco supervisor, as
to what he was to do on a day-by-day basis.
MR. DABOVAL: Same objection.
A Yes.
MR. WIEDEMAMN: (CONTINUING)
Q There's nobody else out there to tell him what to do;
is there?
A I’m not there.
Q I understand you're not there. But if Mr.
oOo ?- @® ?
45a
this? Is that something they do on a day-by-day basis?
We tell our employees on a day-by-day basis to - - if
anything endangers them, to call us. And that’s when I
got to the point, when I found out he was down there,
to tell him that's not where you're supposed to be,
that basically at that point it doesn’t matter what a
Texaco hand says, he’s supposed to stay inside.
So Mr. Allen did call you and report that he was being
exposed to a dangerous circumstance on the Texaco
rig; did he not?
Yes. We established that. You've asked me that.
And that’s what he’s supposed to do?
What's that?
That’s what Mr. Allen is supposed to do it he’s told to
do something that he considers dangerous by a
Texaco supervisor, is to call you and tell you that it’s
dangerous?
MR. DABOVAL: Let me object.
Yes.
oS ? © °?
46a
Not that I was aware of
Did he ever have any emotional or mental
problems that you were aware of?
Not that I’m aware of.
Was he considered a valued employee of Danos &
Curole? ,
He was probably better than average.
And am I correct that he has not worked for you all
since the accident of September 9, 1998?
I don’t believe he has. I'm not 100 percent positive.
Do you know of any other reason why he has not
returned to work other than the accident that he
sustained?
I believe he has cancer now.
Do you know when he was diagnosed with cancer?
If I’m not mistaken, it wasn't that much longer after.
Do you know the reason that he did not return to
work is because he was injured in this accident, his
neck and his back and his stomach?
I guess for that time being until it was
47a
with Mr. Allen during this period of time?
I don’t know. It depends on where my statement
started I guess. I guess whenever the tropical storm - -
when the weather was getting bad. I don’t know the
exact t' me.
You mentioned on several instances - - and Mr.
Wiedemann mentioned it - - the date of the tropical
storm. And that confuses me a little bit because a
tropical storm can exist over days, weeks, or
whatever period of time. That’s why I'm confused,
and I don’t want the record to be confused by the
timing of all of this stuff. So that’s why my question to
you is: When did you first learn or hear from Mr. Allen
that he was out on the platform with any kind of
problems?
On 9/9/98.
Okay. It’s your testimony that you had a conversation
with him on 9/9/98?
Yes, I did.
Okay. And what was the subject of that conversation?
I mean, just that the weather was bad and,
8 G2 AERA:
48a
know what they needed to do to perform their work,
right?
Say it again. Repeat the question.
The customer’s expectations can be that the Danos &
Curole employee that you send out and assign to the
job is experienced at whatever needs to be done?
Yeah.
There is no agreement contractually, verbally, or
otherwise where there is any expectation that Texaco
employees will instruct or supervise how and the
method and manner in which that Danos & Curole
employee goes about his work, how to do his work,
right?
Not that I’m aware of.
On the accident investigation report, the reference to
work that was being done, opening the valve with a
wrench and he slipped and hit head, what was the
source of that information?
Phillip.
Did you ever talk to verify that he did, in fact, hit his
head?
The only other place I would have gotten
49a
Now, an employee such as - - is this an uncommon
situation, or does Danos & Curole assign a specific
person to jobs from time to time?
How do you mean?
Was Mr. Allen the only Danos & Curole employee on
this job on 643?
I don’t recall right off hand if there were any other
D&C people.
Is that uncommon that just a single employee will be
sent out to a job?
No.
We talked about supervisors and things like that. In a
situation where there’s a single Danos & Curole
employee needed to accomplish the job, wouldn't that
employee be considered his own supervisor?
Unless there was like a field foreman.
Okay. I want to then explore that with you because I
want to understand what the relationship is. Is it your
expectation that when you contract with a customer
and send personnel out there, that the customer has
to provide the supervision and instruction to those
employees?
es
50a
employees? Are you saying they’re supposed to
instruct them?
The Texaco hands normally do supervise us.
What do you mean by “supervise"? I said “instruct”;
you say “supervise.”
I mean, they’re over them. If there’s a decision that
needs to be made, if a Texaco hand says one way and
a Danos & Curole hand says the other way, it’s going
to go with Texaco.
Is the - - is Texaco expected by Danos & Curole to
instruct Danos & Curole employees on how particular
tasks have to be done or should be done, methods?
I wouldn't say on each individual task, no.
Is the role of the Texaco supervisor, field foreman, or
whatever you want to call it, company man, typically
to monitor the progress of the contractor’s work and
make sure that they’re getting what they contracted
for?
Yes.
But not to tell them how to do their job?
Not each individual task, no.
Q And you don’t expect that Texaco will provide
a foreman looking over the shoulder of the Danos &
Curole employees to make sure that how they’re
doing the job is right?
Not on each - - no, I don’t think so.
And in this particular instance with Mr. Allen, it
wasn’t necessary for a Danos & Curole foreman or
5la
supervisor to be there looking over his shoulder; is
that right?
MR. WIEDEMANN; Object to the form
of the question. There is no supervisor.
MR. DABOVAL: (CONTINUING)
Q And my question is: That wasn’t necessary because
Mr. Allen knew what he was supposed to be doing,
the job he was performing was certainly within his
experience and knowledge, right?
MR. WIEDEMANN: And I object to the
form of the question. The fact that he had a
Texaco supervisor, Mr. Jerome Sigur.
A Restate the question.
MR. DABOVAL: (CONTINUING)
Q My question is that what Mr. Allen’s job was On this
particular platform did not require a Danos & Curole
supervisor to be out there looking over his shoulder - -
A No.
Q - - and telling him how to do his work?
A No.
Q Mr. Allen, based on his experience or in the judgment
and assessment of whoever with Danos & Curole, was
expected to know how to do the pumping work or
whatever he was sent out there to do?
A Yes.
Q And that is what Danos & Curole guaranteed and
warranted to its customer?
52a
Yes.
Now, what about the employee like Mr. Allen, what if
in the course of their work - - and being a contractor
Danos & Curole is normally working on a job for
somebody, correct?
Correct.
And typically whether that be on land or offshore or
whatever, that’s on someone else’s_ structure,
property, or whatever, right?
Right.
Okay. Now, what is a Danos & Curole employee - -
whether he's a single one sent out to a job or a crew
sent out to a job, if they encounter a situation in the
work that they feel presents a danger or a risk of
injury, what are they supposed to do?
MR. WIEDMANN: Object to the form of
the question as calling for an opinion. He was
only on the job for a month at the time.
MR. DABOVAL: (CONTINUING)
Q
A
Can you answer that question?
Tell them to call the office.
Okay. Are they expected - - is anyone from Danos &
Curole, either back then or since or whatever, ever
instructed their employees to - - if the customer says
to do it, don’t ask questions, do it, I don’t care how
dangerous it is, we don’t want to hear from you?
No.
wo OD PO eS
A
53a
If they encounter in their judgment or opinion
something that they believe might be unsafe, they are
not to do it, right?
Right.
And to contact someone from Danos & Curole?
Yes.
And who would be the person to contact?
If it was during hours, they would probably refer them
to their - - at that time the personnel coordinators.
Okay. Now, when you spoke with Mr. Allen on the
9th, you said - - that was the first time?
Yes.
Did he at all express to you that he was forced to do
something that he felt was unsafe by Mr. Sigur or
anyone from Texaco?
MR. WIEDEMANN: I object to that as
repetitious. It’s been asked and answered
previously.
Do I feel he was forced?
MR. DABOVAL: (CONTINUING)
Q.
No, no, no. Listen to my question. Did he tell you that
he had been forced to do something that he felt was
unsafe by Mr. Sigur or anyone from Texaco?
54a
how anybody might have been taken off before you
spoke to him the first tine?
Not that I’m aware of.
Your reference in the accident investigation report to
flying or flighting, that was just based on what Mr.
Allen had said?
Yes.
Do you all give your employees any kind of training in
safety and the do’s and don’ts?
Yes.
Are your employees instructed not to that the
expectation is that theyre to be responsible for their
own Safety, also?
Yes.
Okay. And if they encounter a situation that they feel
is dangerous in their judgment and opinion,, to
contact the company?
Yes.
Have you ever had any problems with Texaco as far
as anyone from Texaco forcing Danos & Curole
employees to do things that that employee felt was
unsafe?
>. ©. 3? © +
55a
and he still hadn’t asked to come in because of any
injury or anything, right?
No, he didn't.
In the subsequent conversations or even in the initial
conversation, did he tell you why he was outside and
what he was doing in those conversations over the
phone?
When he said that he had gotten hit by a wave?
Right. Or at any time.
Yes.
Okay. What did he tell you he was doing?
Something to the effect of trying to keep the platform
on line.
But you don’t know what particularly he was doing?
No, not exactly.
Did he stay in for the remainder of the time like you
had suggested to him or even instructed him?
I’m not sure if he did.
When you called back and checked in, did you always
speak to him or did you ever speak to the other
fellow out there?
I don’t recall ever speaking to the other fellow. I think
it was always to him.
Not even the other guy answering?
He may have answered once or twice. I’m not sure.
56a
Was there ever a situation when you checked in with
him later and periodically that he expressed to you
that things were really dangerous out there and some
things had to be done in an emergency fashion?
He just expressed that he was scared. That’s about it.
But nothing was expressed to you that you took any
more steps to try and contact the people at Texaco
other than to call the dispatcher?
Not that - - not that I recall, no.
If he expressed something to you that it was a real
dangerous situation, that the security and stability of
the platform and the structure, you would have, I
assuime, taken other steps to try and get help; is that
right?
MR. WIEDEMANN: I object to the form
of the question. The witness has already
testified that it was a
57a
Yes.
And that first conversation that you had with Phillip
Allen was one in which he was expressing concern as
to why he had not been evacuated from 643; isn’t that
so?
Yes.
He called you first to - - in essence, to express his
concern and fear that he had not been evacuated?
MR. DABOVAL: Let me object to the
form. Concern and fear, what does that mean?
MR. WIEDEMANN: (CONTINUING)
Q
A
Is that not accurate?
Could you repeat the question again?
Is it not accurate that the first conversation that you
had with Mr. Allen was his expression of fear and
concern that he had not been evacuated in the face of
the Storm Francis?
Yes.
And as a matter of fact, that’s exactly what he told
you again when he came in on the 14th and you
recorded in your accident report. “At the time of the
accident, he was on the platform during Tropical
Storm Francis. Texaco had started flighting hands in,
but left Phillip and Jerry, their own supervisor, on the
platform." That’s exactly what he told you; isn’t that
so?
That's what he stated.
And that’s the same thing he told you in your
58a
telephone conversation on the 9th?
That's what he stated.
And is it not a fact that in another conversation after
that first conversation he told you that he had almost
been washed overboard by a wave; is that correct?
That’s what he stated.
And it’s your understanding that it was this occasion
when he indicated to you at a later time that he had
been injured?
When he came in, that’s what he stated.
Now, is it - - am I correct - - and I believe I had asked
you earlier - - Mr. Allen wrote in his handwritten note
that he had called on Friday and told you that he had
pulled a stomach muscle. Do you recall that in a
telephone conversation?
59a
foot or hit his nose, you would have put that down?
That’s what I would have put down.
You would record exactly what he told you and
exactly what the cause of that was, as he told you?
As he told me.
Now, it’s your policy, as I understand it, to circulate
this accident report to the customer, I presume so
that the customer will know that an accident
happened and they can have that information for their
own records; is that right?
Normally we'll do that if they request it. Q And you
would ordinarily also follow up the circulation of the
accident report with a conversation with somebody
with the company? ee
We'd fill out the accident report and then send it to
the safety department at that time.
The safety department of Texaco?
Of Danos & Curole.
And it is then the policy of the company to send that
to the customer?
60a
follow the requests of the supervisors like Mr. Sigur as
to what they should do or not do?
Within a reasonable scope.
So you're not expected, if Mr. Sigur or any other
supervisor for Texaco or any other company tells
your employee, | want you to work on the sump
pump, I want you to work on-an engine, I want you to
work on whatever, to follow that request?
A reasonable work assignment, yes.
Well, working on a sump pump, working on an engine,
working on whatever the supervisor decides he wants
you to work on is a reasonable assignment; isn't it?
Yes. If that's what the employee is trained to do, yes.
You wouldn't expect the employee if Mr. Sigur says to
work on the sump pump, to say no, I'm not going to
work on that, I'm going to work on something else;
would you?
It depends. Like if you’re speaking about an operator
that has that training, yes.
So you would expect the employee, assuming
6la
testify to the truth?
MR. DABOVAL: No.
MR. WIEDEMANN: Well, your
objection is to the form of —
MR. DABOVAL: But you're not going to
make statements on the record that are not
true, Larry.
MR. WIEDEMANN: You can read the
question back, please.
(COURT REPORTER READ BACK AS REQUESTED)
He reported that after the fact, and I told him after he
had already done that not to do anything further.
MR. WIEDEMANN: (CONTINUING)
Q
When he reported to you that he was down on the
lower deck and was almost washed overboard, you
told him to go inside and not do any further work; is
that correct?
Yes. He was already back inside when he called and
told me.
And you told him not to go outside further?
Yes.
But before that had occurred, he had expressed his
fear and concern about his
62a
second time you spoke to him was when he said he
was almost washed overboard by a wave. Is that not
correct?
No. The initial conversation is When I found out he
was almost washed over by a wave.
So now your testimony is that the second
conversation was when he expressed fear over why
he was not evacuated?
I believe that was it all along.
It was at that time that you told him you were going to
attempt to do something to get him evacuated?
Yes, | was going to try.
And to do something to get him evacuated, whether it
was before this incident or after this incident,
required you to get the intercession of Texaco; is that
not so?
MR. DABOVAL: Let me object.
My idea about telling him that I was going to try, but |
knew I’m not in charge of the flights. I can't do
anything about them.
MR. WIEDEMANN: (CONTINUING)
63a
A Did anybody - - I’m sorry.
Q Did anybody ever explain to you why Texaco
waited —
A No.
Q - - until it was too late to evacuate Mr. Allen and Mr.
Sigur?
A No.
Q Was it the job of Danos & Curole to determine when
to evacuate Mr. Allen and Mr. Sigur?
MR. DABOVAL: Asked and answered.
A No.
MR. WIEDEMANN: (CONTINUING)
Q Do you understand that the Texaco supervisor has an
obligation not to assign your people to do something
dangerous?
MR. DABOVAL: Let me object. You
haven't established any supervisor over Mr.
Allen.
MR. WIEDEMANN: Except Mr. Sigur.
MR. DABOVAL: No, including Mr.
Sigur. That’s your characterization of him
being Mr. Allen’s supervisor.
MR. WIEDEMANN: (CONTINUING)
Q What did you understand Mr. Sigur’s position was on
Q
643?
A Texaco operator
And he would be a supervisor of your employees out
there insofar as telling them what jobs he wanted
done?
I think earlier I explained if there was a decision that
needed to be made and the Texaco operator had his
opinion and mine had his opinion, normally the
Texaco hands are going to go with his opinion. Not
necessarily to say our guy is wrong or —
So would he not be a supervisor of your people insofar
as making a decision of what has to be done over
what your people want to do?
MR. DABOVAL: Object to the form of
the question.
I don’t think - - he may not have been a direct
supervisor. I don’t know what level operators - - I
know what level Phillip was. I don't know what level
the Texaco guy was. I don’t know if it was two exact
hands that both got stuck out there at the same time
or stayed out there at the same time or worked at the
location
65a
CIVIL ACTION NO. 99-1456
SECTION “R”
MAGISTRATE (4)
The deposition of RONALD RATCLIFF, JR., was. taken in the
above-entitled cause, pursuant to the following stipulation,
before Linda Brewer, Certified Court Reporter, in the offices
of Danos & Curole, 1602 Pinhook, Suite 301, Lafayette,
Louisiana, on the 14th day of August, 2000, beginning at 11:00
a.m.
in 1998?
Garrell Rowell.
Can you spell that?
G-a-r-r-e-]-] R-o-w-e-I-l.
a: ? &. >
Did you, prior to September 14th, 1998, have any
direct dealings with the plaintiff in this case, Philip
Allen?
A Sure.
Q In what way?
A Business relationship, friend relationship. We worked
for the same company. We communicated often. He
would stop in on his days that he came in and visit
with us two to three hours at a time. We lived in the
same town. We were raised with each other. We knew
each other.
Q And you would be the one that would assign him to
jobs?
66a
He was already assigned to Texaco when we came
aboard. But, yeah, if Texaco would release him, we
would find him somewhere else to go.
When you came to work for Danos & Curole in May of
1998, Phillip Allen was already
A
67a
acknowledge that contractor is an independent
contractor. At such, Texaco shall have no voice in the
discharge, supervision, or control of contractor's
employees, representatives, or subcontractors or in
fixing their number, compensation, or hours of
service. Texaco shall have no right to control the
manner of contractor’s performance but Texaco and
its representatives shall have the right to inspect the
work performed and make suggestions and comments
thereon.”
Is that consistent with your understanding of the
relationship?
Sure.
MR. DABOVAL: At what point in time?
MR. WIEDEMANN: In September of
1998.
What you mean’
MR. WIEDEMANN: (CONTINUING)
Q
Is there anything within what you just read that is
inconsistent with your understanding of the
relationship between Texaco and Dance & Curole
referable to
68a
our employees should get a raise. This says one thing,
but some things happen differently. Just because
they're under Texaco’s supervision, they see their
daily performance. That says that, but, you know, |
can't give a, guy a raise unless Texaco approves .
So what you're saying is that at least your knowledge
of what takes place is inconsistent with what Texaco
describes in this contract?
Not necessarily. You know, it’s a big
contract.
It says that Danos & Curole .is an independent
contractor. Do you understand that to be the case?
Yes, we are.
And it says as such, Texaco will have no voice in the
discharge. You say they have all voice in discharge?
Yes. If they don’t want somebody, then we replace
them.
They tell you all to replace them?
That's our business.
What would happen, if Texaco didn't like
69a
what you're talking about, zone of
danger.
MR. WIEDEMANN: (CONTINUING)
Q
“Zone of danger” means an approaching weather
system that may represent a hazard to personnel on a
rig or a platform. You understand that?
Yeah, I understand. I mean, what phase are we at? |
mean, are we past the point where I've already made
contact with them?
No.
When it just touches the edge of the Gulf, or are we
within a hundred miles of where it will probably
strike?
We're at the point where you, as a personnel
coordinator in 1998, would make a decision that
something, whatever it is -
You have bad weather?
~ represents a hazard.
| would first make contact with my customers and my
employees, make sure -find out either they're in or
out.
Who would make a decision as to whether they would
come in or they'd stay out?
Who would make that decision?
Yes.
The customer would make that decision.
i a <n ee
7 ae eae
70a
The customer in this instance would be Texaco?
Yes, sir.
When you say you would contact your employees and
your customers, what would you contact your
employees for?
Just find out if you do come in and you do hit the
beach, make contact with me so that I can know your
whereabouts because you're still on a scheduled job.
And how would you contact the employee?
By phone.
You have a phone —
By cell phones, personal phone. I have phone numbers
of them home.
I'm talking about from your company in Morgan City
to the rigs, what kind of contact would you have?
What you mean, what kind of contact?
Well, you can’t yell at them.
By phone.
So you have to have some means of getting
Oo ? © ®?P
7la
Ask to talk to them.
Which means you could talk to them
directly?
Yes, sir.
Did you have any other means of
communication?
No, sir.
You didn’t have telefax or e-mail communication
capabilities?
Not at that time, I did not.
In 1998?
In 1998, I did not.
So, as I understand it, Danos & Curole in September of
1998, did not have e-mail -A Danos & Curole might
have. Ronnie Ratcliff did not.
Do you know whether Danos & Curole did? A I cannot
not answer that because I don’t know.
But you as personnel coordinator-A Did not have the e-
mail address to West Cam 643-A, no, sir.
And you did not have telefax communication?
I’m sure they did, yes, sir. I’m sure
72a
My question was: You could suggest to Texaco that |
think my employees ought to be evacuated with a
storm approaching, but then the ultimate decision
whether or not they would be evacuated would be
Texaco’s decision?
Correct.
Have you ever suggested that an employee be
evacuated when Texaco did not evacuate?
No, sir.
Do you know - - did Danos. & Curole have any
agreement with their employees such as Phillip Allen
that they could be forced by Texaco to stay on a
platform during, a storm?
Do I have any knowledge of Texaco forcing an
employee to stay?
No. Listen to my question, please. My question was:
Did Danos & Curole have any agreement, verbal or
otherwise, with an employee such as Phillip Allen
that that employee could be forced to stay on a
Texaco platform during a storm without his or her
consent?
I do not know.
A
Q
73a
forced to stay on a platform during a storm since
everybody wants to get evacuated?
I do not know.
Is it your testimony that Danos & Curole can subject
one of its employees to the exposure of a hurricane or
a storm by denying them the opportunity to be
evacuated?
No, sir, we do not deny anybody the opportunity to be
evacuated.
Is it your testimony that Texaco in 1998 could force
one of your employees to remain on a platform and
deny him evacuation in the event of a storm
approaching?
MR. DABOVAL: Let me object to the
form of the question unless this witness has
any personal knowledge from his position
with Danos & Curole concerning any
contractual or verbal agreements. By that, |
don’t think he's in a position to testify about
what Texaco can or can't do.
Correct.
MR. WIEDEMANN: (CONTINUING)
Do you know of any written contract between Danos
& Curole and Texaco in existence in September of
1998 whereby Texaco with the authority of Danos &
Curole could have forced one of your employees to
remain on a rig during a storm that presented a hazard
to his person?
No, I do not.
Do you know of any verbal contract between Danos &
A
74a
Curole in existence in September of 1998 that would
permit that to occur?
No, sir.
Do you know how and under what circumstances
Phillip Allen was compelled to remain on Texaco 643
during the storm designated as Tropical Storm
Francis in September of 1998?
Do I know why he was kept?
Do you know under what circumstances he was kept
on 643 during Tropical Storm Francis?
It sounds like I'm answering — making a decision of why
he was kept out there. I
75a
-- for Danos & Curole?
Yes, sir.
Do you have any personal knowledge or familiarity
with Mr. Allen’s work on the 643 and how that was
conducted in terms of how he knew what to do on
any given day or during the day?
Are you asking me do I think he done his job well?
No. I’m asking you: Are you aware with personal
knowledge of how he went about doing his job?
No, sir.
Now, Danos & Curole contracted with Texaco to
provide personnel and equipment necessary to
provide whatever services needed, right?
Yes, sir.
And the personnel are to be experienced personnel in
whatever that job is?
Yes, sir.
And not someone that you necessarily -the customer
needs to tell how to do the job that they’re sent out to
do?
Correct. When a request would come in, we would fill
it with the proper training requirements that were
needed.
So in terms of — that’s the business of Danos & Curole,
to provide those services as experts?
Yes, sir.
oO: * © 2
76a
So if you send a worker out such as Mr. Allen or any
other workers to a customer on a job that you
contracted for, that customer is not expected to
control the details of how he accomplishes his work
or train him or anything of that sort, are they?
I’m sure there’s a briefing of the expectations, but —
The general scope of the job?
Yeah, the employee knows what he needs to do.
It’s not part of any agreement or expectation that the
customer is to provide a foreman of sorts to
specifically oversee the details of how he’s doing his
work and to supervise that and instruct him on how to
do the work as opposed to the customer telling him
what needs to be accomplished and monitoring the
results?
Correct.
Did you ever have the opportunity to look at Mr. Allen’s
personnel files to determine his employment history?
No, sir.
Do you know whether or not Mr. Allen ever had
missed any work or had any prior injuries?
No, sir.
Who handles — as personnel coordinator, you
wouldn’t be responsible for maintaining the personnel
files?
If we sent him to training, we would put the training
certificate in his file. But as far as his signing of all of
his paperwork and coming to work for us, no.
77a
Q What about if he had an illness or injury on the job,
who would handle that within D&C?
We would have initial contact of that.
“We” meaning the personnel coordinators?
The personnel coordinators would know of it.
Go ? © ?
All right. Now, you had only been
78a
CIVIL ACTION
NO. 99-1456
SECTION "R"
MAGISTRATE (4)
Deposition of SCOTT
NIMELSTEIN, taken on April 12, 2001, in the offices of
Texaco, Inc. 5th Floor, Texaco Center, 400 Poydras Street,
New Orleans, Louisiana.
ee? oe
employees. They are not special contractors doing
projects on their own.
And one of the ways that they don’t function as
Texaco employees is they don't fall into the Texaco
retirement program?
Yes.
They don’t fall into the Texaco medical coverage
program?
No.
They don't fall into the stock participation
program?
No.
The 401 K program; is that right?
Sure.
So it doesn’t cost Texaco as much money to employ
a subcontractor like D & C?
I don’t know. That might be true. What I do know is
79a
| think we would pay a certain amount of money
above and beyond what we would pay our own
people that pays the employer for them to be able
to fund their benefits but I don’t know the exact
numbers.
And do you have the right — Do you issue any
payroll checks to D & C — I mean to the employees
like Mr. Allen?
No.
Did you take any withholding taxes out for Mr.
Allen, Social Security, income tax?
No.
They are not on your payroll at all?
No. I'm only talking about effectively what's going
on in the field.
But they are not in any way listed insofar as federal
taxation, state taxation, Social Security, as Texaco
employees?
No.
And they are not listed as Texaco employees
insofar as any Texaco benefits?
No.
And am I correct that it’s only their employer that
can fire them?
No, that’s not true. We —— I mean as far as our
facility goes we can get rid of them if they are not
following safety procedures or whatever. We can
dismiss them immediately.
80a
Q. And how do you go about dismissing them?
A. We just tell them to go back.
Q. And how do you determine that you are going
8la
CIVIL ACTION
NO. 99—1456
SECTION “R”
MAGISTRATE (4)
MAGISTRATE (3)
Deposition of TOMMY L. MATTHEWS, JR., taken on
Thursday, April 19, 2001, in the offices of Texaco, Inc., 400
Poydras Street, 5th Floor, New Orleans, Louisiana.
Q. Okay. So, apparently somebody put Phillip Allen's
name on the list of nonessential personnel to be
evacuated; is that correct?
It looks that way.
And then somebody scratched that off?
Correct.
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So, apparently the information that Ms. Little got
initially -
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Price.
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Price, I’m sorry. The information that Ms. Price got
from the field initially was -
— incorrect.
— that Phillip Allen was not an essential person?
Correct.
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That wouldn’t have been something that she would
have decided, that would have been something
somebody out in the field decided?
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Correct.
Do you know who would have decided that insofar as
643 was concerned?
It could have been the pumper that brought it to light.
But I mean who would have told her initially that
Phillip Allen is nonessential?
Whoever made the flight manifest out and
provided it to her.
In other words, the people in the field
would prepare the manifest?
Correct.
But you don’t know who prepared this
manifest?
No, sir, I don't.
Well, who would be the kind of people
that would prepare this?
The production foreman that’s out there, there would
be a production foreman that would be assisting it,
and most of the time it’s put together by the CCPO,
which is the clerk.
CCPO stands for what?
Central control platform operator.
Okay. And who would that be?
I don’t know who they were at the time.
Okay. But the people who would give that information
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to the CCPO would be who?
A. The POP, all the other platforms.
Q. Okay. so, the CCPO would have gotten this
information from the platforms -
A. Correct.
Q. — and then either he or somebody like
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A. It’s every tine a storm occurs.
Q. So, that decision is made when the
evacuation process begins?
A. That’s correct.
Q. And how does Texaco get the authority to designate a
subcontractor’s employee as an essential personnel to
stay out in the storm?
A. Well, nobody stays out in the storm.
Q. Well -
If you have a full evacuation, nobody stays out in the
storm. We go in and get them out.
Q. Well, in an evacuation, how does Texaco, if you know,
go about getting the authority to designate a
subcontractor’s employee as an essential person?
A. It’s the determination — the best I can recollect it to
you is if the determination of that particular individual
is incremental to the operation of that particular
platform. So, if that person would leave that platform,
that platform wouldn't be able to properly run or you
couldn't bring it back up on line. So, you know,
nonessentials can be declared to Texaco personnel
also. It all encompasses the people who are out there.
Q. But the fact of the matter is - what you’re saying is that
a subcontractor employee, without the permission of
his employer or without the permission of the
employee, can be designated by Texaco as an
essential employee and left out on the platform,
during the storm.
MR. DABOVAL: Let me object to the use of
the word “Left out”.
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THE WITNESS: Right. This is not a
determination of leaving someone out there during a
storm. This is a determination of if the storm comes
or if there’s a storm somewhere in the area, that
person is essential to the operation and the safe
evacuation of all the people involved. So, that’s your
determination, if he’s removed from that facility, he
puts that facility at risk.
BY MR. WIEDEMANN:
Q. Let me just state to you that Mr. Sigur, who is an
employee at Texaco -
A. Correct.
Q. ~— wrote a statement, which I don’t have
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haven't determined when it was declared to be a
Level-3?
From past experience?
No, just from - -
Other hurricane evacuations?
No. You went back to, I assume, your rig, 189, your
platform- -
Correct.
- - after this storm had passed and you had access to
documents, I'm sure, and people. Did you learn that,
when going back, when this was declared a Level-3
that everybody was evacuated?
No, sir, I didn't.
At some point in time, was everybody evacuated from
Garden Banks-189?
Correct.
And that is a platform which is west and south of the
platform that Mr. Sigur and Mr. Allen were on?
I believe so, yes, sir.
Did you learn why, if Garden Banks-189 was
evacuated, why the platform that Mr. Allen and Mr.
Sigur were on, which I believe is 643-A, why they were
not evacuated?
From what I gathered., they made the determination
to suspend flight operations.
In other words -
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They were scheduled to cone in and flight operations
Were suspended.
Between the time that this was declared to be a Level-
3 evacuation and the ability to evacuate Sigur and
Allen, the weather conditions had gotten such that the
helicopters couldn't operate?
I can’t say that for sure.
MR. DABOVAL: Object to the form.
BY MR. WIEDEMANN:
Q. Well, you indicated that a moment ago and that’s what
I understood you to say.
A. Indicated that in what context?
MR. DABOVAL: Let me object. That’s not a
question, that’s a statement.
BY MR. WIEDMANN:
Q. Well, I thought you said a moment ago that they had
suspended flight operations.
A. That’s correct.
Q. So -
But that was not in reference to any weather
conditions that I know of.
Q. well, why did they suspend flight operations?
You would have to ask the pilots involved in this. It’s
their call, they fly to a certain point and then they use
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their information to suspend flight ops.
So, Air Logistics suspended flight operations; is that
your understanding?
That’s my recollection, yes, sir.
And who made that decision?
To suspend flight operations?
Yes.
The pilots. I don’t know who the pilots are. There’s
too many aircraft involved in the operations.
Well, do you understand that this was an individual
pilot decision or a decision by Air Logistics or do you
know?
I don’t know. I would have to assume that it would be
an overall decision by Air Log.
Were there other people left out that they had
scheduled to evacuate?
Not that I’m aware of.
You mean the only two left in the western Gulf on.
platforms were Sigur and Allen?
Either that or there was a skeleton crew left on the
rigs. I can’t answer that.
I know, but I’m talking about on your platforms.
The only two left, yes, sir.
The only two left on the platforms in the western Gulf
were Allen and Sigur?
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Correct.
How did you learn that information?
How did I learn that?
Yes.
I don’t recall.
And do you know to whom the decision to cease
flights would have been communicated to Texaco?
Probably Ms. Price.
Ms. Price?
Yes, sir.
And she would have notified her superiors?
Probably.
But it’s your understanding that that was a decision
that was made by Air Logistics and
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