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 |
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.
ORDER AND REASONS
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.1 Plaintiffs counter that general maritime law, not Louisiana law, applies.
Before the Court are three motions2 for summary judgment on this narrow, yet significant, issue.
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.3 In 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.4 At 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."6 Hicks 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.
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. See Fed. 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 also Hunt 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) (quoting 11 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).
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, see Hufnagel v. Omega Serv. Indus., Inc. , 182 F.3d 340, 350 (5th Cir. 1999) (); Recar v. CNG Producing Co ., 853 F.2d 367, 369 (5th Cir. 1988) ( ). 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
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 (); Hufnagel , 182 F.3d at 350 (); Tenn. Gas Pipeline v. Houston Cas. Ins. Co. , 87 F.3d 150, 155 (5th Cir. 1996) (...
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