Pitts v. Shell Oil Company, No. 71-2652.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: RIVES, COLEMAN and DYER, Circuit
• Citation: 463 F.2d 331
• Parties: Hilburn PITTS, Plaintiff-Appellant, United States Fidelity & Guaranty Company, Intervenor, v. SHELL OIL COMPANY, Defendant-Appellee, and Chesley Pruet Drilling Company, Third Party Defendant.
• Decision Date: 26 June 1972
• Docket Number: No. 71-2652.

463 F.2d 331 (1972)

Hilburn PITTS, Plaintiff-Appellant, United States Fidelity & Guaranty Company, Intervenor,
v.
SHELL OIL COMPANY, Defendant-Appellee, and
Chesley Pruet Drilling Company, Third Party Defendant.

No. 71-2652.

United States Court of Appeals, Fifth Circuit.

June 26, 1972.

463 F.2d 332

COPYRIGHT MATERIAL OMITTED

463 F.2d 333

Stanford Young, Waynesboro, Miss., for appellant

William S. Mullins, III, Laurel, Miss., for U. S. Fidelity & Guaranty Co.

Joe H. Daniel, Daniel, Coker, Horton, Bell & Dukes, Jackson, Miss., for Shell Oil Co.

Matthew Harper, Jr., Laurel, Miss., for Chesley Pruet Drilling Co.

Before RIVES, COLEMAN and DYER, Circuit Judges.

RIVES, Circuit Judge:

On July 21, 1969, Hilburn Pitts was apparently injured while performing his job as a roughneck. For some 15 years Pitts had been in the employ of Chesley Pruet Drilling Company. At the time of the accident, Pruet was engaged in drilling an oil well for Shell Oil Company.

In his complaint against Shell, filed as a diversity action in the United States District Court for the Southern District of Mississippi, Pitts alleged that while working as an employee of Pruet he had inhaled hydrogen sulphide gas. Pitts further alleged that his injuries were proximately caused by the negligence of Shell in "failing to provide the appropriate safety measures to prevent the poisonous gas from escaping, etc."

On account of the injury, Pitts received workmen's compensation benefits from Pruet's compensation insurance carrier.

Shell denied that Pitts sustained any injury. Moreover, said Shell, even if Pitts was hurt, he cannot sustain an action against Shell because: (a) under Mississippi law Pitts was a compensation-covered employee of Shell as well as of Pruet; and (b) he was receiving full benefits from Pruet.

Shell moved for summary judgment based upon the deposition of Pitts, the affidavit of Shell's engineer on the drilling site, and upon the response of Pitts to Shell's request for admission of facts. Rule 56, F.R.Civ.P. Shell's first motion for summary judgment was denied. Upon a claimed extension of the record and after filing a third party complaint against Pruet, Shell again moved for summary judgment. Pruet filed its own motion to like effect. This time, the district court held that there was no genuine issue of material fact and granted Shell's motion. We reverse.

If Pruet was an employee of, as opposed to an independent contractor for, Shell then Pitts was also an employee of Shell. As such Pitts' sole avenue of relief would be workmen's compensation. Pitts claims that Pruet was an independent contractor. We need not distill the correct answer; rather we ask whether there is a genuine issue as to Pruet's relationship with Shell.

To resolve the propriety of granting summary judgment, two questions must be resolved: (1) Under Mississippi law, what is the test for an independent contractor vis-a-vis an employee? (2) Under the federal law governing summary judgment, is there a genuine issue as to any material fact necessary to determine whether Pruet was an employee of, or an independent contractor for, Shell, as those terms are used in Mississippi?

I.

The Mississippi Supreme Court has often undertaken to limn the test for an independent contractor. On balance it can be fairly stated that Mississippi has adopted a bifurcated test. The first, and seminal, inquiry is whether the alleged employer (Shell in this case) has the right to control, as opposed to actual control over, the details of the alleged employee's (Pruet's) work. Biggart v. Texas Eastern Transmission

463 F.2d 334

Corp., Miss. 1970, 235 So.2d 443; Brown v. L. A. Penn & Son, Miss.1969, 227 So.2d 470; White Top and Safeway Cab Co. v. Wright, 1965, 251 Miss. 830, 171 So.2d 510; Boyd v. Crosby Lumber & Mfg. Co., 1964, 250 Miss. 433, 166 So.2d 106. If one in Shell's position is interested only in the ultimate outcome of the labor, then an independent contractor relationship exists. In determining where the right of control lies (with Shell or with Pruet) the court must consider: (1) direct evidence bearing on the right (such as a contract between the parties); (2) evidence as to who actually exercised the power of control; (3) the method devised for paying the alleged employee and its sub-employees; (4) who furnished the equipment; and (5) who had the right to discharge workers. Boyd, supra.

Additionally, the Mississippi Supreme Court has looked to the nature of the alleged employee's work, relative to the nature of the alleged employer's work, in order to ascertain whether the type of work performed by the alleged employee is sufficiently independent in nature to warrant finding that the alleged employee himself should be deemed an independent contractor. Here the court has considered the alleged employee's work in the following light:

"`The character of his work or business—how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on—and its relation to the employer\'s business, that is, how much it is a regular part of the employer\'s regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.\' 1 Larson, § 43.52 * * *."

Boyd, supra, 166 So.2d at 110.

Bearing in mind the above tests, we turn to a consideration of the facts in this...