Morgan v. Hercules Drilling Co., CIVIL ACTION NO. 09-2091

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
Writing for the CourtREBECCA F. DOHERTY
Docket NumberCIVIL ACTION NO. 09-2091
Decision Date13 July 2011




Pending before the Court is the Motion for Summary Judgment [Doc. 52] filed by defendant F.J. Brown & Associates, Inc. ("FJB"). In its motion, FJB seeks dismissal of "all claims asserted against it" on grounds FJB owed no duty to plaintiff and did not breach any duty to plaintiff. Plaintiff opposes the motion [Doc. 59]. For the following reasons, FJB's motion is DENIED.

I. Factual and Procedural Background

The instant lawsuit arises out of injuries allegedly sustained by the plaintiff, an employee of Offshore Energy Services, Inc. ("OES"). Plaintiff worked for OES for approximately sixteen years; in the hammer department for ten years, after which he transferred to the casing department. Although he was working in the casing department at the time of his injury, the plaintiff had agreed to go offshore on a hammer job because OES was busy and had run out of regular offshore workers in the hammer department.

At the time of plaintiffs injury, McMoran Oil & Gas, LLC ("McMoran") was the operator of the well in question. McMoran contracted with Hercules Drilling Co., LLC for the use of the inland drilling barge Hercules 49. McMoran contracted with FJB to supply a "company man," and with plaintiffs employer, OES, to provide the hammer services.

The hammer that was to be used on plaintiffs assignment was a hydraulic hammer and consisted primarily of two parts: the can and the ram. When the plaintiff arrived at the drilling barge, the hammer was not assembled. Plaintiff and members of the drilling crew bolted the can and the ram together using 40 bolts to hold the can to the ram. Once hammer operations were completed, the hammer assembly was to be offloaded to another vessel for transport to shore. However, the weight of the assembled hammer - approximately 30,000 lbs. - exceeded the lift capacity of the crane. Therefore, it was necessary to disassemble the can from the ram so the parts could be loaded separately onto the transport vessel. It was during the disassembly of the hammer - which required the plaintiff to remove the 40 bolts (which had become tightly bolted during the hammering process) that held the can to the ram - that the plaintiff was injured.

Plaintiff Randal Morgan and his wife filed the instant lawsuit on December 10,2009 against Hercules and McMoran for personal injuries and damages under the general maritime law and Section 905(b) of the Longshoreman and Harbor Worker's Compensation Act, 33 U.S.C. §905(b). On July 9, 2010, the plaintiffs added FJB as a defendant, arguing FJB is vicariously liable for the negligence of its employees aboard the rig. On June 29,2010, Liberty Mutual Insurance Company ("Liberty Mutual"), OES's workers compensation insurer, intervened, seeking reimbursement of all benefits and medical expenses paid to and on behalf of the plaintiff.1

On May 10, 2011, FJB filed the instant motion for summary judgment, arguing all ofplaintiffs' claims against it should be dismissed, because FJB did not owe a duty to Mr. Morgan, and did not breach a duty to Mr. Morgan.

II. Summary Judgment Standard

A party claiming relief, or a party against whom relief is sought, may move, with or without supporting affidavits, for summary judgment on all or part of the claim. Fed. R. Civ. Proc. 56(a) and (b). Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c)(l)(2).

When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must - by affidavits or as otherwise provided in this rule - set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.

Fed. R. Civ. Proc. 56(e). As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994):

When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bears the burden of proof at trial. Celotex Corp. v. Catrett, 411 U.S. 317 (1986). However, where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial. Id. at 322; see also, Moody v. Jefferson Parish School Board, 2 F.3d 604, 606 (5th Cir. 1993); Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991). Only when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party" is a full trial on the merits warranted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The Supreme Court has instructed:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make ashowing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Where no such showing is made, "[t]he moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."

Lujan v. National Wildlife Federation, 497 U.S. 871, 884 (1990), quoting Celotex Corp. v. Catrett, All U.S. 317, 322-23 (1986)). The Court later states:

In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the non-moving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment shall be entered against the nonmoving party unless affidavits or other evidence set forth specific facts showing that there is a genuine issue for trial. The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues.

Id. at 888-89 (1990) (internal quotations and citations omitted). The Fifth Circuit has further elaborated:

[The parties'] burden is not satisfied with 'some metaphysical doubt as to the material facts,' by 'conclusory allegations,' by 'unsubstantiated assertions,' or by only a 'scintilla' of evidence. We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. ...[S]ummary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.

Little v. Liquid Air Corp., 31 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citations and internal quotations omitted).

Finally, in evaluating evidence to determine whether a factual dispute exists, "credibilitydeterminations are not part of the summary judgment analysis." Id. To the contrary, in reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party, as well as that evidence supporting the moving party that is uncontradicted and unimpeached. Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir. 2001).

III. Law and Analysis

It is well-settled a principal is not liable for the torts of an independent contractor unless the principal exercises operational control over or expressly or impliedly authorizes the independent contractor's actions. Landry v. Huthnance Drilling Co., 889 F.2d 1469, 1471 (5th Cit. 1989), citing Zepherinv. Conoco Oil Co., 884F.2d212,213 (5th Cir.1989);Boutewell v. Chevron U.S.A., Inc., 864 F.2d406,407 (5th Cir. 1989); Grammer v. Patterson Services, Inc., 860F.2d639,641 (5th Cir. 1988), cert, denied, 491 U.S. 906, 109 S.Ct. 3190, 105 L.Ed.2d 698 (1989); Bartholomew v. CNG Producing Co., 832 F.2d 326, 329 (5th Cir.1987); Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 549-50 (5th Cir. 1987), cert, denied, 485 U.S. 1034,108 S.Ct. 1593,99 L.Ed.2d 908 (1988); Hawkins v. Evans Cooperage Co., 766 F.2d 904, 906 (5th Cir. 1985); Wallace v. Oceaneering Int'l, 727 F.2d 427,437 (5th Cir. 1984); McCormacky. Noble Drilling Corp., 608 F.2d 169,174-75 (5th Cir.1979).2

In Dixon v. Danos and Curole Marine Contractors, Inc., 1998 WL 812393,2 (E.D. La. 1998) (J. Vance), the district court cited Fifth Circuit jurisprudence in explaining the terms of a contract, while relevant, do not necessarily determine the outcome:

The Fifth Circuit has emphasized that "the relationship between the principal and the

independent contractor is in large measure determined by the terms of the contract itself." Ham v. Pennzoil Company, 869 F.2d 840,842 (5th Cir. 1989). Nonetheless, the court typically looks beyond the contract to

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