Gaudet v. Exxon Corp.
| Decision Date | 04 November 1977 |
| Docket Number | Nos. 75-3101,76-1196 and 76-2668,s. 75-3101 |
| Citation | 562 F.2d 351 |
| Parties | Russel James GAUDET, Plaintiff-Appellant, v. EXXON CORPORATION, Defendant-Appellee. Ruven ST. PIERRE, Plaintiff-Appellant, v. EXXON CORPORATION et al., Defendants-Appellees. Ruven J. ST. PIERRE, Plaintiff-Appellant, v. EXXON CORPORATION, Bennie P. Toups, Richard N. Boss and Joe W. Moore, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Anatole J. Plaisance, Lafayette, La., for plaintiff-appellant in No. 75-3101.
Jack J. Cousin, New Iberia, La., for defendant-appellee in No. 75-3101.
Michael X. St. Martin, Danny J. Lirette, Houma, La., for plaintiff-appellant in Nos. 76-1196 and 76-2668.
John J. Cooper, New Orleans, La., for Booker Drilling Co., et al.
Gene S. Palmisano, Ivan D. Warner, III, New Orleans, La., for Exxon Corp.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before MORGAN and RONEY, Circuit Judges, and KING *, District Judge.
Appellants in these cases seek review of orders in their respective trials granting summary judgment in favor of all defendants. The single issue presented is whether the trial courts erred in holding as a matter of law that appellants were barred by the Longshoremen's and Harbor Workers' Compensation Act 1 (LHWCA) from maintaining suits for negligence against defendants. For reasons to follow, we affirm in all cases.
Appellant Gaudet (No. 75-3101) originally worked for Tidelands Marine Service, Inc. ("Tidelands"). In 1963, under an arrangement with Tidelands, Gaudet began general maintenance and repair 2 at Exxon's West Delta Block 73, a complex of eight fixed platform oil drilling rigs located on the Outer Continental Shelf offshore the State of Louisiana. 3 There Gaudet, while engaged in regular duty under the supervision of Exxon's field foreman, sustained injury to his knee when struck by a barrel falling from a rack. Gaudet brought suit against Exxon for negligence.
The District Court granted summary judgment for Exxon, finding that the essential facts were not in dispute and those facts established that Gaudet could not sue Exxon for negligence because he had become Exxon's "borrowed employee," whose exclusive remedy lay under the LHWCA. 4 Gaudet appealed and challenged the appropriateness of the summary judgment.
Appellant St. Pierre (Nos. 76-1196 and 76-2668) originally worked for Bourne Welding Services, Inc. ("Bourne"). Some 17 years ago Bourne furnished him to Exxon at whose direction he worked on the offshore production facility known as Grand Isle Block 16. He was under the supervision of Field Maintenance Foreman ("gang pusher") Bennie P. Toups when he stood on a 55-gallon chemical drum to weld a channel iron for the installation of an electric generator. He was injured when the drum exploded from hot slag from his weld. The District Court rendered summary judgment against St. Pierre in his suit against Exxon for negligence. Subsequently he filed against Exxon and fellow supervisory employees Toups, Boss, and Moore, but he was again defeated at the summary judgment stage. In each case the court held that the suit was barred by the LHWCA because of St. Pierre's status as a "borrowed employee." St. Pierre appealed.
In Standard Oil v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909) the Supreme Court recognized the concept of the borrowed employee or borrowed servant doctrine thusly:
One may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that he becomes the servant of that person with all the legal consequences of the new relation. Id. at 220, 29 S.Ct. at 253, 53 L.Ed. at 483.
The court further explained:
It sometimes happens that one wishes a certain work to be done for his benefit and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work and places them under his exclusive control in the performance of it, those men became pro hac vice the servants of him to whom they are furnished. . . . (In this) case, he to whom the workmen are furnished is responsible for their negligence in the conduct of the work, because the work is his work and they are for the time his workmen. Id. at 221, 29 S.Ct. at 254, 53 L.Ed. at 483.
As the court clearly held, under the borrowed employee doctrine, an employer will be liable through respondeat superior for negligence of an employee he has "borrowed," that is, one who does his work under his supervision and control.
According to the court, to determine whether an employee is the employee of his original employer or the borrowed employee of another
we must inquire whose is the work being performed, a question which is usually answered by ascertaining who has the power to control and direct the (servant) in the performance of (his) work. Id. at 221-222, 29 S.Ct. at 254, 53 L.Ed. at 483-84.
In Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir. 1969), this court mentioned nine factors to be evaluated in determining whether an employee is to be considered a borrowed employee of another:
(1) Who has control over the employee and the work he is performing, beyond mere suggestion of details or 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?
(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?
Ruiz failed to detail how the test should be applied, which factors are to be given primary weight, and which, if any factors, are controlling. Apparently they are to be weighed as appropriate in each particular case, because the court went on to state that "no one of these factors, or any combination of them, is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship." Id. 5
Appellants argue that Dugas v. Pelican Const. Co., Inc., 481 F.2d 773 (5th Cir. 1973) indicates that of all the Ruiz factors, the agreement between borrowing and lending employer should be given controlling weight. In Dugas this court remarked, "(E)ssential to (the borrowed employee) 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." Id. at 778. Taken out of context, this idea does not precisely square with Ruiz. But central to the holding in Dugas was the lack of "even minimal suggestion, criticism, recommendation, or advice" to the employee. 481 F.2d at 778. Therefore we are inclined to view Dugas ' emphasis on the agreement between employers as "broad language . . . more expansive than . . . necessary to decide the case, correctly decided on its facts." Davis v. Estelle, 529 F.2d 437, 442 (5th Cir. 1976). Notably, this court in Dugas finally reached the same conclusion we had reached in Ruiz : "(N)o one factor or specific combination of factors is determinative of the borrowed employee relationship." 481 F.2d at 778.
To decide which Ruiz factors, if any, should be determinative in this case, the use of the borrowed employee doctrine to extend the coverage of the LHWCA and thus to bar common law damage actions must be examined. Used in this context, the doctrine bears little resemblance to that doctrine evolved to hold the proper employer responsible for the torts of his employee, the concept of respondeat superior. See Standard Oil v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909); Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (1950). 6 Within the context of respondeat superior the focus on control in the traditional test of borrowed employee status is proper, because only if the employee acted under the orders of his employer should injuries to third parties be traced to the original negligence of the employer. In the instant case, however, instead of being a device to impute liability, the borrowed employee doctrine is a means to escape it through the exclusive remedy provisions of the LHWCA.
The LHWCA was designed to provide an injured employee with certain and absolute benefits in lieu of possible common law benefits obtainable only in tort actions against his employer. See Haynes v. Rederi A/S Aladdin, 362 F.2d 345 (5th Cir. 1966), cert. denied, 385 U.S. 1020, 87 S.Ct. 731, 17 L.Ed.2d 557. Although the coverage of the LHWCA is not contractual and does not depend upon the consent of the parties, nonetheless when an employee begins work for an employer under the coverage of the LHWCA, he is presumed to have consented to the Act's trade-off of possibly large common law damages for smaller but certain LHWCA benefits. And by the very act of continuing in employment, he may be assumed to agree that, considering the likelihood of injury and the likely severity of injury within the working conditions he experiences, the benefits offered by the LHWCA in the event of injury are acceptable.
Under the LHWCA an employee retains the right to sue third parties. 7 Crawford v. Pope & Talbot, Inc., 206 F.2d 784 (3d Cir. 1953). It would be unfair to expect an employee to waive this right against third parties, because generally he has had no opportunity to evaluate the risks that third parties present him. Thus if an employee momentarily leaves the work site of his original...
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