Hicks v. BP Exploration & Prod., Inc., CIVIL ACTION No. 17–2275

• Decision Date: 05 April 2018
• Docket Number: CIVIL ACTION No. 17–2275
• Citation: 308 F.Supp.3d 878
• Parties: Robert G. HICKS, et al. v. BP EXPLORATION & PRODUCTION, INC., et al.
• Court: U.S. District Court — Eastern District of Louisiana

308 F.Supp.3d 878

Robert G. HICKS, et al.

v.BP EXPLORATION & PRODUCTION, INC., et al.

CIVIL ACTION No. 17–2275

United States District Court, E.D. Louisiana.

Signed April 5, 2018

Matthew Stephen Lott, Lott Law Firm, Pascagoula, MS, Andrew J. Cvitanovic, David Allen Parsiola, Philip Francis Cossich, Jr., Cossich, Sumich, Parsiola & Taylor, LCC, Belle Chasse, LA, James R. Reeves, Jr., Pro Hac Vice, Reeves & Mestayer, PLLC, Biloxi, MS, for Robert G. Hicks, et al.

Salvador Joseph Pusateri, Aaron Benjamin Greenbaum, Diemminh P.D. Peters, Rowen A. Fricker, Pusateri, Johnston, Guillot & Greenbaum, LLC, Kevin J. LaVie, Justin Cole Warner, Phelps Dunbar, LLP, Peter B. Tompkins, Charles Lewis Whited, Jr., Tarryn Elizabeth Walsh, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, Patrick Christopher Grace, Anderson, Stephens & Grace, Metairie, LA, for BP Exploration & Production, Inc., et al.

SECTION I

ORDER AND REASONS

LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE

The question is, what substantive law governs plaintiffs' case?BP Exploration and Production Inc.("BP Exploration"), BP America Production Company("BP America")(collectively, "the BP defendants"), and Bishop Lifting Products, Inc.("Bishop") argue that Louisiana law applies to this negligence action, at least as to plaintiffs' tort claims against them.¹Plaintiffs counter that general maritime law, not Louisiana law, applies.

Before the Court are three motions² for summary judgment on this narrow, yet significant, issue.

I.

The MAD DOG is an oil and gas spar platform located on the Outer Continental Shelf ("OCS") in the Gulf of Mexico that is owned and operated by BP Exploration.³In March 2016, a vessel—the OCSV SIEM STINGRAY ("STINGRAY")—was being used as a "flotel," or living quarters, for at least some of the MAD DOG's crew and subcontractors.⁴At the time, BP Exploration was the time charterer of the STINGRAY.

While BP America employs many of the personnel on the MAD DOG, it does not employ them all.For example, Bishop had at least one employee stationed on the MAD DOG in March 2016.Ensco PLC Drilling ("Ensco") also had employees stationed on the MAD DOG, including Robert Hicks("Hicks").

In March 2016, Hicks was working as a rig electrician on the MAD DOG pursuant to a contract between Ensco and BP Exploration.He was "rooming" on the STINGRAY at the time,⁵ and would be transferred to and from the MAD DOG via a personnel basket.The crane facilitating the transfers was located on the MAD DOG.

Hicks alleges that, on March 20, 2016, he was injured during one of these transfers.According to Hicks, the personnel basket in which he was being transferred "hit the deck of the [STINGRAY]," then "jerked up" before it "hit the [STINGRAY] again."⁶Hicks contends that he"fell down in the basket" the second time that it made contact with the STINGRAY, with "one leg in [the basket] and one leg out of it."⁷

Hicks and his wife eventually initiated this tort action.They allege that negligence attributable to BP Exploration, BP America, and Bishop—as well as other defendants—during the March 20, 2016 personnel basket transfer from the MAD DOG to the STINGRAY caused the injuries about which Hicks now complains.

II.

Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine dispute of material fact.SeeFed. R. Civ. P. 56."[A]party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact."Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case.Id.;Fontenot v. Upjohn Co. , 780 F.2d 1190, 1195(5th Cir.1986).

Once the party seeking summary judgment carries its initial burden, the nonmoving party must come forward with specific facts showing that there is a genuine dispute of material fact for trial.Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538(1986).The showing of a genuine issue of material fact is not satisfied by creating " ‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence."Little v. Liquid Air Corp. , 37 F.3d 1069, 1075(5th Cir.1994)(citations omitted).Instead, a genuine issue of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).

The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue.Id.However, the nonmoving party's evidence "is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party's] favor."Id. at 255, 106 S.Ct. 2505;see alsoHunt v. Cromartie , 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731(1999).

Moreover, "[a]lthough the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible ..., the material may be presented in a form that would not, in itself, be admissible at trial."Lee v. Offshore Logistical & Transp., LLC , 859 F.3d 353, 355(5th Cir.2017)(quoting11 Moore's Federal Practice–Civil¶ 56.91(2017) )."This flexibility allows the court to consider the evidence that would likely be admitted at trial ... without imposing on parties the time and expense it takes to authenticate everything in the record."Maurer v. Independence Town , 870 F.3d 380, 384(5th Cir.2017).

III.

A.

The Court must first consider whether this tort action arises under the Outer Continental Shelf Lands Act ("OCSLA").The statute's jurisdictional grant provides, in relevant part, that

the district courts of the United States shall have jurisdiction of cases and controversies arising out of, or in connection with [ ] any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental Shelf, or which involves rights to such minerals.

43 U.S.C. § 1349(b)(1)."The Fifth Circuit has interpreted this language as straightforward and broad,"In re DEEPWATER HORIZON , 745 F.3d 157, 163(5th Cir.2014), applying a "but-for" test to define its scope, seeHufnagel v. Omega Serv. Indus., Inc. , 182 F.3d 340, 350(5th Cir.1999)("We apply a broad ‘but-for’ test to determine whether a cause of action arises under OCSLA.");Recar v. CNG Producing Co ., 853 F.2d 367, 369(5th Cir.1988)("We have established a ‘but for’ test to resolve" the question whether § 1349(b)(1) is satisfied in a given case.).This "but-for" test consists of three elements: "(1) the facts underlying the complaint occurred on the proper situs; (2)the plaintiff's employment furthered mineral development on the OCS; and (3)the plaintiff's injury would not have occurred but for his employment."⁸

Barker v. Hercules Offshore, Inc. , 713 F.3d 208, 213(5th Cir.2013)(Clement, J., with whom Haynes, J., concurs).

The Fifth Circuit's application of this test in Recar v. CNG Producing Co. , 853 F.2d 367(5th Cir.1988), is particularly instructive.Thomas Recar"was employed by Land & Offshore Company as a maintenance crew foreman."Recar , 853 F.2d at 368.According to the Fifth Circuit,

Recar and his crew had been engaged for some time in repairing and painting platforms that CNG Producing Company(CNG) owned on the Outer Continental Shelf off the coast of Louisiana in the Gulf of Mexico.CNG had hired the M/V GRADY FAGAN to transport the crew from platform to platform, and Recar and his crew ate and slept aboard this vessel.Additionally, Recar spent a large part of his work time aboard the GRADY FAGAN, monitoring the crew's work.On the morning of November 28, 1985, Recar alleges that he was swinging from a CNG platform to the GRADY FAGAN when the rope broke, causing Recar to fall to the deck of the GRADY FAGAN and injure his neck.

Id.The Fifth Circuit concluded that Recar's case fell within the scope of OCSLA.Id. at 369.It pointed out that "Recar, at the time of his injury[,] was working as the foreman of a maintenance crew engaged in painting and repairing production platforms which were built and maintained for the purpose of producing oil and gas from wells previously drilled."Id.Thus, the Fifth Circuit determined that "Recar's work maintaining the production platform furthered mineral development" on the OCS and that "Recar would not have been injured ‘but for’ the maintenance work he was performing and supervising on the platform."Id.

Applying the "but-for" test to the undisputed facts, the Court concludes that OCSLA jurisdiction extends to plaintiffs' tort action.As a contract rig electrician on the MAD DOG—an oil and gas spar platform on the OCS⁹ —Hicks' employment undoubtedly furthered mineral development on the OCS.Cf.id.In addition, Hicks would not have suffered his alleged injury but for his employment on the offshore platform.Cf.Barker , 713 F.3d at 213("[I]t is clear that but for his employment, Barker would not have been involved in the incident forming the basis of this suit.");Hufnagel , 182 F.3d at 350("But for Hufnagel's work on the platform, his injury would not have occurred.");Tenn. Gas Pipeline v. Houston Cas. Ins. Co. , 87 F.3d 150, 155(5th Cir.1996)(concluding that the "but-for" test was satisfied and OCSLA jurisdiction existed where "[a]n ocean-going vessel ... allided with a platform secured to the outer continental shelf some 35 miles off the coast of...