Wilcox v. Wild Well Control, Inc.

• Decision Date: 24 July 2015
• Docket Number: No. 13–31281.,13–31281.
• Parties: Joseph R. WILCOX; Lisa Wilcox, Plaintiffs–Appellants v. WILD WELL CONTROL, INCORPORATED; Superior Energy Services, Incorporated, Defendants–Appellees. Joseph R. Wilcox; Lisa Wilcox, Plaintiffs–Appellants v. Max Welders, L.L.C., Defendant–Appellee Wild Well Control, Incorporated; Superior Energy Services, Incorporated, Defendants–Appellees–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

794 F.3d 531

Joseph R. WILCOX;

Lisa Wilcox, Plaintiffs–Appellantsv.WILD WELL CONTROL, INCORPORATED;

Superior Energy Services, Incorporated, Defendants–Appellees.

Joseph R. Wilcox;

Lisa Wilcox, Plaintiffs–Appellants

v.Max Welders, L.L.C., Defendant–Appellee

Wild Well Control, Incorporated;

Superior Energy Services, Incorporated, Defendants–Appellees–Appellants.

No. 13–31281.

United States Court of Appeals, Fifth Circuit.

July 24, 2015.

As Revised Aug. 11, 2015.

Kenneth Henry Hooks, III, Dodson & Hooks, A.P.L.C., Baton Rouge, LA, Michael F. Sturley (argued), University of Texas School of Law, Austin, TX, for Plaintiffs–Appellants.

James H. Daigle, Christopher Matthew Hannan, Esq. (argued), Baker, Donelson, Bearman, Caldwell & Berkowitz P.C., Jefferson Randolph Tillery, Esq. (argued), Jones Walker, L.L.P., New Orleans, LA, for Defendant–Appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.

Opinion

EDWARD C. PRADO, Circuit Judge:

This appeal arises from injuries sustained by Plaintiff—Appellant Joseph R. Wilcox while welding on an offshore platform. Wilcox, an employee of Defendant—Appellee Max Welders, L.L.C., was working as the borrowed employee of Defendant—Appellee—Appellant Wild Well Control, Incorporated, a subsidiary of Defendant—Appellee—Appellant Superior Energy Services, Incorporated. Wilcox sued the Defendants under, inter alia, the Jones Act. Superior and Wild Well filed a cross-claim for indemnity from Max Welders pursuant to a Master Service Agreement (MSA) or, in the alternative, Vessel Boarding, Utilization and Hold Harmless Agreement (VBA) between Superior and Max Welders. The district court granted summary judgment to all Defendants on the Jones Act claims because it found that Wilcox is not a Jones Act seaman and granted summary judgment to Max Welders on indemnity because 1) the MSA was void under Louisiana law and 2) the VBA did not apply to Wilcox's work. Wilcox, Superior, and Wild Well appeal these decisions. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Max Welders is a contractor that provides various offshore construction, fabrication, and repair services. Max Welders employed Wilcox as a welder. During his employment with Max Welders, Wilcox worked in numerous locations, including a fabrication yard in Louisiana and on various rigs, barges, and vessels owned by Max Welders' customers. Wilcox concedes that during his entire employment with Max Welders, he spent less than thirty percent of his time in service of any one vessel or group of vessels.

Energy Resource Technology GOM, Incorporated (ERT) hired Wild Well—a subsidiary of Superior—to decommission a well in the Gulf of Mexico (“the ERT job”). Wild Well contracted with Max Welders to provide welders to assist. Wilcox was one of the welders sent to work on the ERT job, which was expected to last for approximately two months. During this time, Wilcox was required to live on Wild Well's barge, the D/B SUPERIOR PERFORMANCE, which was on site at the well to provide support to the decommissioning work. Superior previously owned the D/B SUPERIOR PERFORMANCE. Wilcox allegedly sustained injuries on June 5, 2012, when gasses exploded while he was welding inside on the well platform. Wild Well concedes that, at the time of the accident, Wilcox was its borrowed employee.

Wilcox and his wife sued Max Welders, Superior, and Wild Well for negligence under the Jones Act, 46 U.S.C § 30104, and general maritime law (GML) unseaworthiness, or alternatively for vessel negligence against the D/B SUPERIOR PERFORMANCE under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b). Superior and Wild Well jointly filed a cross-claim alleging that Max Welders had agreed to indemnify and hold harmless Superior and its subsidiaries against any personal-injury claims brought by Max Welders' employees pursuant to the 2004 MSA between Max Welders and Superior. They argued, in the alternative, that Max Welders owed them indemnity pursuant to a 2010 VBA between Superior and Wild Well.

Max Welders moved for summary judgment on Wilcox's Jones Act and GML claims, asserting that Wilcox was not a seaman. Max Welders also moved for summary judgment on Superior and Wild Well's indemnity cross-claim, contending that the MSA and VBA did not provide indemnity for Wild Well's demolition work for a third party. Superior and Wild Well then filed a cross-motion for summary judgment on their indemnity claims. The district court granted summary judgment to Max Welders on Wilcox's Jones Act and GML claims as well as on Superior and Wild Well's indemnity claims.

Superior and Wild Well later moved for summary judgment on Wilcox's Jones Act and GML claims, arguing that if Wilcox was not a seaman with respect to his employer, Max Welders, he was also not a seaman with respect to his borrowing employer, Wild Well. The district court granted this motion. The district court later granted summary judgment to Superior and Wild Well on Wilcox's remaining claims for vessel negligence under the LHWCA.

These consolidated cases encompass two appeals. First, Wilcox appeals the grant of summary judgment for Wild Well on Wilcox's Jones Act and GML claims based on his seaman status.¹ Second, Wild Well and Superior appeal the grant of summary judgment for Max Welders on indemnity.

II. DISCUSSION

This Court has jurisdiction to review a district court's final judgment pursuant to 28 U.S.C. § 1291. We review de novo a district court's grant of summary judgment, viewing “all facts and evidence in the light most favorable to the non-moving party.” Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir.2013). We apply the same standard as the district court in the first instance. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.2007).

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir.2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

A. Wilcox's Jones Act Claims

The district court granted summary judgment for Wild Well and Superior because it found that Wilcox was not a Jones Act seaman. The Supreme Court has articulated a two-prong test to determine seaman status under the Jones Act: 1) “an employee's duties must ‘contribut[e] to the function of the vessel or to the accomplishment of its mission,’ ” and 2) “a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991) ).

At issue in this appeal is the substantial-connection prong.² The “fundamental purpose” of this inquiry “is to ... separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation.” Id. at 368, 115 S.Ct. 2172. “Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore.” Id. at 361, 115 S.Ct. 2172. Following Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986) (en banc), we have generally “declined to find seaman status where the employee spent less than 30 percent of his time aboard ship.” Chandris, 515 U.S. at 367, 115 S.Ct. 2172. The Supreme Court deemed this “an appropriate rule of thumb,” but noted that “departure from it will certainly be justified in appropriate cases.” Id. at 371, 115 S.Ct. 2172.

Generally, the status of an employee who splits time between land and a vessel is “determined in the context of his entire employment with his current employer.” Barrett, 781 F.2d at 1075 (internal quotation marks omitted); see also Chandris, 515 U.S. at 370–71, 115 S.Ct. 2172. But if the employee “receives a new work assignment before his accident in which either his essential duties or his work location is permanently changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new job.” Barrett, 781 F.2d at 1075–76 (emphasis added); see also Chandris, 515 U.S. at 371–72, 115 S.Ct. 2172 (“[W]e see no reason to limit the seaman status inquiry ... exclusively to an examination of the overall course of a worker's service with a particular employer. When a maritime worker's basic assignment changes, his seaman status may change as well.”). This reassignment exception applies only when an employee has “undergone a substantial change in status, not simply [by] serv [ing] on a boat sporadically.” Becker v. Tidewater, Inc., 335 F.3d 376, 389 (5th Cir.2003) (emphasis added).

We addressed the Barrett reassignment exception in a borrowed-employee context similar to Wilcox's in New v. Associated Painting Services, Inc., 863 F.2d 1205 (5th Cir.1989).³ The plaintiff worked for a painting company that sent employees to offshore drilling rigs and oil platforms. Id. at 1207. The employee was regularly assigned to different vessels owned by unrelated entities. Id. One week into an assignment to a drilling rig as a borrowed employee, the plaintiff sustained injuries in an accident. Id. The employee argued that he was a seaman with regard to the painting company and the borrowing employer. Id. Although he did not satisfy the thirty-percent requirement based on his entire...