Benoit v. Transco Exploration Co., Civ. A. No. 82-0718.

• Decision Date: 15 November 1983
• Docket Number: Civ. A. No. 82-0718.
• Citation: 577 F. Supp. 304
• Parties: Winston BENOIT v. TRANSCO EXPLORATION COMPANY, et al.
• Court: U.S. District Court — Western District of Louisiana

577 F. Supp. 304

Winston BENOIT v. TRANSCO EXPLORATION COMPANY, et al.

Civ. A. No. 82-0718.

United States District Court, W.D. Louisiana, Lake Charles Division.

November 15, 1983.

J.B. Jones, Jr., Cameron, La., for plaintiff.

D. Mark Bienvenu, Alan K. Breaud, Lafayette, La., Frederick L. Cappel, Lake Charles, La., for defendants.

MEMORANDUM RULING ON PENDING MOTIONS

EDWIN F. HUNTER, Jr., Senior District Judge.

Winston Benoit instituted this suit in the 38th Judicial District Court of the State of Louisiana. Plaintiff's claim is based on Louisiana law and specifically on principles enunciated in Louisiana Civil Code Article 2317. He was injured on March 18, 1980 when he slipped and fell from a Transco crane. Defendants were Transco Exploration, Reco Crane, and Link Belt. The state district judge granted summary judgment in favor of Link Belt. Reco settled pursuant to a "Mary Carter" agreement, a copy of which is attached.¹ The case was then removed to this court.

The case was submitted to the jury pursuant to special interrogatories. In response, the jury found:

(1) That plaintiff's accident was proximately caused by a vice or defect in a crane in the custody of defendant Transco.

(2) That plaintiff himself was not negligent.

(3) That plaintiff was not the borrowed employee of Transco.

(4) That Reco Crane was not negligent.

(5) That plaintiff was damaged as a result of the accident in the amount of $350,000.

Defendant, attacking the first four findings, has moved for judgment in its favor, notwithstanding the verdict of the jury, or in the alternative for a new trial.

THE JUDGMENT N.O.V.

Our relevant inquiry as to judgment n.o.v., according to Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir.1969, en banc), is whether any credible evidence exists for the verdict. We have no difficulty with Findings (1), (2) and (4).

Persuasive evidence was presented that plaintiff's accident was proximately caused by a vice or defect in the crane; that plaintiff himself was not negligent; and that Reco Crane was not negligent. True, the jury could have reached different conclusions, but they did not. The motion for judgment n.o.v. as to those findings cannot be disturbed, and no useful purpose is to be served by a recitation of that evidence. The same evidence precludes, as well, any conclusion by this Court that a new trial should be granted on those issues.

The motion as it relates to the "borrowed servant-statutory employee" defense presents a difficult problem. What statute is applicable? Defendant argues that Benoit was its "borrowed employee" and thus his exclusive remedy is for compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. 901-950. Defendant relies in the alternative on the exclusive remedy provisions of the Louisiana Workmen's Compensation Act, which applies both in the case of a "statutory" employer relationship and also an employer-employee (borrowed servant) relationship. See Travelers v. Paramount Drilling, 395 So.2d 849 (La.App.1981). There, after a thorough discussion of the Louisiana jurisprudence, including the Louisiana Supreme Court decision of Maryland Casualty Company v. Liberty Mutual Insurance Company, 254 La. 489, 224 So.2d 465 (1969), the Court held:

"Where a borrowed or special employee of the principal is a general employee of one with whom the principal has contracted, compensation liability of the principal might be based either on the employer-employee relationship or on the `statutory' employer-employee relationship provided by Section 1061. Our view is, however, that the provisions of Section 1061 are not to be applied, as between the employers, where an employer-employee relationship exists between both employers and the employee independent of the section. The more direct relationship and basis of liability should control insofar as sharing of responsibility between the employers is concerned. "The central and determinative issue in this case is, therefore, whether the welder was a special or borrowed employee of Paramount. The trial court correctly found that he was.

* * * * * *

"As pointed out earlier, an employee may be both a statutory employee and a borrowed or special employee. In either case, the employee is entitled to compensation from the principal or borrowing employer, as the employee's exclusive remedy, and it matters not which theory is applied insofar as the employee is concerned."

The test for each of these immunities is different, but both render the statutory employer or borrowing employer immune from tort liability.

There is a degree of confusion as to whether we should apply Louisiana law or decisions under the Longshoremen's and Harbor Workers Act regarding the defenses of statutory and/or borrowed employer. The relevant inquiry in determining whether an employee is engaged in maritime employment is whether his activities have "a realistically significant relationship to traditional maritime employment." Here, Benoit was employed as a roustabout to perform work on the premises of Transco, on the left descending bank of the Calcasieu River. His labors had a realistically significant relationship to maritime matters. Given the guidance of Fifth Circuit precedents, it is obvious that the Longshoremen's and Harbor Workers Act, on its own terms, applies to Benoit. In fact, compensation payments were made to him pursuant to that Act. Herb Welding v. Gray, 711 F.2d 666 (5th Cir., 1983). But, inquiry does not end there. The Supreme Court of the United States, within the last month, has denied certiorari in the case of Thompson v. Teledyne Movible Offshore, 419 So.2d 822 (La.1982). There, the Supreme Court of Louisiana held that federal and state compensation schemes may co-exist on land and in the territorial waters of Louisiana.¹ It follows that Benoit would have been entitled to Louisiana Workmen's Compensation benefits, notwithstanding his entitlement to and receipt of benefits under the Longshoremen's and Harbor Workers Act.

The instant case is a Louisiana action, and if Transco was the statutory employer of Benoit and/or if Benoit was Transco's "borrowed servant," Transco would have a workmen's compensation obligation and would be entitled to a concomitant liability shield. This requires an inquiry and an examination and application of the statutory-employer sections of the Louisiana Workmen's Compensation Act, LSA-R.S. 23:1061, and the exclusive remedy provisions of LSA-R.S. 23:1032.

The statutory language vital to our initial inquiry is found in the phrase "part of his trade, business or occupation." This language has been subjected to conflicting interpretations. The Fifth Circuit also, in Chavers v. Exxon, 716 F.2d 315 (5th Cir. 1983), sought to minimize these conflicts. Our appellate court has certified to the Louisiana Supreme Court several questions concerning the statutory employee defense. That court, however, declined to answer the questions. In the absence of a controlling precedent of the Louisiana Supreme Court, Chavers has now established the test that we must utilize in divining whether a statutory employment relationship exists.² We attach and make a part hereof that opinion. We did not have the advantage of the Chavers decision when we heard this case in July of 1983. If we had it to do over again, we would put the following additional interrogatory to the jury:

Did Transco customarily utilize its own employees to do the work that was being performed by Winston Benoit?

If the jury's answer had been in the affirmative, Transco would have had its liability shield. If the answer had been in the negative, we would have instructed the jury to answer an additional question:

Do other employers, engaged in businesses similar to that of Transco, customarily use their own employees to do the work that was being performed by Winston Benoit?

Before discussing the evidence as it relates to the "statutory employer" defense, it is appropriate to recite the Louisiana law as it relates to the "borrowed servant" defense. The most recent statement is found in Marzula v. White, 431 So.2d 858 (La.App.2d Cir.1983), where the court was called upon to decide whether the plaintiff was the borrowed employee of the defendant. The court reiterated the basic principles of Louisiana law:

"Whether a person is a borrowed servant is an issue of fact There is a presumption that the general employer retains control of his employees ...

The party who alleges that an employee has become a borrowed servant bears the burden of proof on that issue and a mere showing of a division of control is not enough to meet that burden ...

In order for the employee of the general employer to become the borrowed employee of a special employer it must be shown that the employer-employee relationship between the general employer and his employee has been suspended and a new and like relationship has been created between the general employer's employee and the special employer. This change of relationship does not occur when the work being performed by the general employer's employee is the general employer's work and where he retains some control over his employee ..." 431 So.2d at 861, citations omitted, emphasis added.

We have expressed our thought that this case should be governed by the Louisiana law relative "borrowed servant," but there are platform cases where the Fifth Circuit has used the Longshoremen's and Harbor Workers Act context. In that context, if Benoit was the employer of Transco, he would be covered by the Act, and the Longshoremen's and Harbor Workers Act would be his exclusive remedy. Hebron v. Union Oil, 634 F.2d 245 (5th Cir.1981); Gaudet v. Exxon, 562 F.2d 351 (5th Cir.1977). In Gaudet, the court, citing Standard Oil v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909), defined the borrowed servant doctrine as follows:

"One may be in the general service of another, and, nevertheless, with respect to particular work,

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