Robertson v. W&T Offshore, Inc. and Baker
Robertson worked as a cook and steward aboard an oil and gas platform in the Gulf of Mexico. He brought a negligence action against the owner-operator and supervisor of the platform, Raymond Chatelain, alleging that his slip and fall was a result from a liquid left on the deck of the platform. The defendants moved for summary judgment on Robertson's claims. W&T moved for summary judgment arguing that Robertson was a borrowed employee and as a result the plaintiff's remedies are limited to the LHWCA because under the law W&T is tort immune. Baker moved for summary judgment arguing that Mr. Chatelain and Robertson were co-employees and as such under the LHWCA Baker is immune from tort for the negligence of Mr. Chatelain.
Does the LHWCA provide grounds of immunity for W&T and Baker against Mr. Robertson for the negligence of a borrowed co-employee?
The Court first began its analysis by explaining that a party may move for summary judgment at any time and the granting of a summary judgment motion is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed. R. Civ. Proc. 56(c).
The Court then explained that pursuant to OSCLA, the LHWCA is the applicable law to provide an injured offshore worker compensation benefits. If the LHWCA is applicable then it bars any tort action against an employer. This bar, however, is contingent upon the finding that Robertson and Mr. Chatelain are co-employees.
Under the LHWCA, a borrowed servant becomes an employee of the borrowing employer. Standard Oil v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909), and "is to be dealt with as the servant of the [borrowing employer] and not of the [nominal employer]." Denton v. Yazoo & M.V. Railway Co., 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310 (1932). The determination of whether an employee is a borrowed employee is a question of law for the court to decide but certain factual determinations must be made before the court's determination.
The Fifth Circuit set out a 9 factor test to be considered in determining borrowed employee status: (1) Who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation? (2) Whose work was being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee? Brown v. Union Oil Co. of California, 984 F.2d 674, 676 (5th Cir.1993).
After weighing the factors, the court ruled that Robertson and Chatelain were borrowed employees and as a result the LHWCA is the exclusive remedy for Robertson.There are nine factors in determining borrowed employee status: (1) Who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation? (2) Whose work was being performed? (3) Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? (9) Who had the obligation to pay the employee?
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