Langfitt v. Fed. Marine Terminals Inc.

Citation647 F.3d 1116,32 IER Cases 994,23 Fla. L. Weekly Fed. C 169
Decision Date29 July 2011
Docket NumberNo. 10–12088.,10–12088.
PartiesBruce LANGFITT, Plaintiff–Appellant,v.FEDERAL MARINE TERMINALS, INC., Defendant–Appellee,BBC Chartering USA, LLC, et al.,Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

647 F.3d 1116
32 IER Cases 994
23 Fla.
L. Weekly Fed. C 169

Bruce LANGFITT, Plaintiff–Appellant,
FEDERAL MARINE TERMINALS, INC., Defendant–Appellee,BBC Chartering USA, LLC, et al.,Defendants.

No. 10–12088.

United States Court of Appeals, Eleventh Circuit.

July 29, 2011.

[647 F.3d 1118]

Jacob J. Munch, Munch & Munch, PA, Tampa, FL, Stephen Frederick Rosenthal, Podhurst Orseck, PA, Miami, FL, for Plaintiff–Appellant.Andrew Ian Dayes, Donovan Adam Roper, Roper & Roper, PA, Apopka, FL, for Defendant–Appellee.Appeal from the United States District Court for the Middle District of Florida.Before TJOFLAT, WILSON and RIPPLE,* Circuit Judges.TJOFLAT, Circuit Judge:


In December 2007, Bruce Langfitt was employed full time by Able Body Temporary Services, Inc. (“Able Body”),1 a labor broker in the business of furnishing its day-laborer employees to clients on a temporary basis. On December 13, Able Body supplied Langfitt and other employees to Federal Marine Terminals, Inc. (“FMT”), a company that operates longshoring facilities on the Florida coast, to assist in FMT's loading of a cargo ship. Soon after Langfitt began the longshoring services on behalf of FMT, however, a heavy piece of cargo being loaded into the ship's hold fell on him, and he was paralyzed from the waist down.

As compensation for his injury, Langfitt has been receiving the benefits guaranteed to him by the Longshore and Harbor Workers' Compensation Act (the “LHWCA” or “Act”), 33 U.S.C. § 901 et seq., a federal no-fault workers' compensation program that compensates “employee[s]” disabled from injuries 2 “occurring upon the navigable waters of the United States,” or in adjoining areas used in “loading [or] unloading” certain vessels. Id. § 903. 3 Every “employer” of covered employees—“person[s] engaged in maritime employment, including any longshoreman

[647 F.3d 1119]

or other person engaged in longshoring operations,” id. § 902(3)4—must secure and pay the Act's compensation benefits. Id. § 904(a).5 Because Langfitt was engaged in maritime employment, he was covered by the Act, and he has been paid the compensation benefits by Able Body's LHWCA insurer,6 since Able Body had contractually agreed to secure and pay LHWCA compensation for all the day laborers it supplied to FMT for longshoring work.

Nevertheless, Langfitt, seeking to supplement his workers' compensation benefits, brought this negligence action against FMT,7 claiming that the negligence of FMT's employees caused his injury.8 In response, FMT alleged, as an affirmative defense, that it was Langfitt's employer, under § 904(a), at the time of Langfitt's injury and therefore immune from suit under the LHWCA, id. § 905(a) (“The liability of an employer prescribed in [ § 904(a) ] shall be exclusive and in place of all other liability of such employer to the employee.”).9 Accordingly, at the close of discovery, FMT moved the district court for summary judgment under Federal Rule of Civil Procedure 56 based upon § 905(a).

The district court granted FMT's motion. The court agreed that FMT was Langfitt's employer at the time of his injury and that, consequently, § 905(a) barred Langfitt's tort claim. Langfitt now appeals

[647 F.3d 1120]

the district court's grant of summary judgment,10 raising only the issue of whether the district court erred in holding that FMT was his employer and that § 905(a) precluded his negligence claim.


We begin with an explanation of the fact-dependent standard that our precedents have established for determining who was the 33 U.S.C. § 904(a) “employer” in cases like Langfitt's, where the answer often is far from clear. 11 In such cases, we have sought guidance from the common law's borrowed-servant doctrine, which is rooted in the laws of Agency and Tort, yet have modified that common-law standard in order to appropriately consider important policy concerns unique to the LHWCA.

Throughout our discussion, we use the following terms of art:

“Principal”: one who has authorized another to act on his account and subject to his control.12

“Agent”: one authorized by another (i.e., the principal) to act on the other's account and under the other's control.13

“Employer”: a principal who employs an agent to perform service in the principal's affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. Thus, an employer is a species of principal. All employers are principals, yet all principals are not necessarily employers. A principal becomes an employer only if his right to control the agent's physical conduct is sufficient.14

“Employee” (or “Servant”): an agent employed by an employer to perform service in the employer's affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the employer. Thus, an employee is a species of agent. All employees are agents, yet all agents are not necessarily employees.15

“Independent Contractor”: a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the

[647 F.3d 1121]

performance of the undertaking.16


One of the foremost status distinctions at common law is that between an employee and an independent contractor. The essence of the common law's test for whether an agent is an employee or an independent contractor is the control of details; that is, whether the principal has the right to control the manner and means by which the agent accomplishes the work. See, e.g., NLRB v. Steinberg, 182 F.2d 850, 857 (5th Cir.1950) (“[T]he employer-employee relationship exists only where the employer has the right to control and direct the work, not only as to the result to be accomplished by the work, but also as to the manner and means by which that result is accomplished.”); 17 see also, e.g., State ex rel. MW Builders, Inc. v. Midkiff, 222 S.W.3d 267, 270 (Mo.2007) (en banc) (“An independent contractor is one who contracts to perform work according to his own methods without being subject to the control of his employer except as to the result of his work.” (citations and internal quotation marks omitted)).

Significantly, it is the right and not the actual exercise of control that is the determining element of employment. Steinberg, 182 F.2d at 857; see also 3 Lex K. Larson, Larson's Workers' Compensation Law § 61, at 61–1 (Matthew Bender, Rev. Ed.2011) (“It is the ultimate right of control, under the agreement with the employee, not the overt exercise of that right, which is decisive.”). Consequently, assessing whether a principal had the right of control is highly fact-dependent and a variety of considerations may be probative. These considerations include: (1) direct evidence of the principal's right to or actual exercise of control; (2) the method of payment for the agent's services, whether by time or by the job; (3) whether or not the equipment necessary to perform the work is furnished by the principal; and (4) whether the principal had the right to fire the agent. See, e.g., Larson, supra, § 61, at 61–1 (presenting the same four factors as the “principal factors showing right of control”); Restatement (Second) of Agency § 220 (1958) (describing the factors to be considered in assessing whether one is an employee).

Distinguishing between an employee and an independent contractor is particularly important in tort law. Ordinarily, a principal is not liable for the incidental physical acts of negligence in the performance of duties committed by an agent who is not an employee, but an employer is held liable to third parties for an employee's negligence under the doctrine of respondeat superior. Restatement (Second) of Agency § 220 cmt. e; see also id. § 219 (“A[n] [employer] is subject to liability for the torts of his [employees] committed while acting in the scope of their employment.”). For it is the employer's ability to control the employee that allows the law to hold an otherwise non-faulty employer vicariously liable for the negligent acts of its employee acting within the scope of employment. See id. § 219 cmt. a (“The assumption of control is a usual basis for imposing tort liability when the thing controlled causes harm.”).

It is in this tort-law context that the borrowed-servant doctrine arose. Courts

[647 F.3d 1122]

recognized that “[i]t 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[, however,] enter into an agreement with another [to] furnish [ ] him with men to do the work.” Standard Oil Co. v. Anderson, 212 U.S. 215, 221, 29 S.Ct. 252, 254, 53 L.Ed. 480 (1909). But, in such cases, the question became, which principal should be held vicariously liable when one of the furnished workers negligently injured a third person while acting in the scope of the worker's duties?

The borrowed-servant doctrine was created to help resolve this issue. See Restatement (Second) of Agency § 227; see also, e.g., Gaudet v. Exxon Corp., 562 F.2d 351, 355–56 (5th Cir.1977) (explaining that the borrowed-servant doctrine enables courts to hold the proper principal vicariously liable, as an employer, for the torts of an employee under the principle of respondeat superior). The doctrine declares that an employee directed or permitted by his employer to perform services for another principal may become the employee—i.e., the “borrowed servant”—of the borrowing principal in performing those services. When this is found to be the case, the borrowing principal is considered the “borrowing employer” and it is he, and not the employee's general employer,18 that is held vicariously liable to third parties injured on account of the borrowed servant's negligence in the scope of the borrowed-employment relationship. See, e.g., Standard Oil, 212...

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