Robertson v. W & T Offshore Inc. & Baker/mo Ser

• Decision Date: 13 May 2010
• Docket Number: Civil Action No. 08-1693.
• Citation: 712 F.Supp.2d 515
• Parties: Glance ROBERTSONv.W & T OFFSHORE, INC. & Baker/MO Serv., Inc.
• Court: U.S. District Court — Western District of Louisiana

712 F.Supp.2d 515

Glance ROBERTSONv.W & T OFFSHORE, INC. & Baker/MO Serv., Inc.

Civil Action No. 08-1693.

United States District Court,

W.D. Louisiana,

Lafayette Division.

May 13, 2010.

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Stephen F. Armbruster, Scheuermann & Jones, New Orleans, LA, for Glance Robertson.

George B. Jurgens, III, Andrew J. Quackenbos, King Krebs & Jurgens, William J. Riviere, Colin B. Cambre, W. Taylor Hale Phelps Dunbar et al., New Orleans, LA, for W & T Offshore Inc. & Baker/MO Serv., Inc.

MEMORANDUM RULING

REBECCA F. DOHERTY, District Judge.

Pending before the Court are two motions: (1) Motion for Summary Judgment [Doc. 15] filed by defendant Baker/MO Services, Inc. (“Baker”); and (2) Motion for Summary Judgment [Doc. 16] filed by defendant W & T Offshore, Inc. (“W & T”). In its motion, W & T seeks dismissal of plaintiff's claims against W & T on grounds plaintiff was a borrowed employee of W & T and, as a result of the exclusive remedy provisions of the Longshore and Harbor Workers Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq., applicable by virtue of the outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq., W & T is tort immune and, therefore, plaintiff's tort claims against W & T should be dismissed. In its motion, Baker argues Raymond Chatelain, Jr., who supervised the plaintiff's work on the W & T platform, is also a borrowed employee of W & T. Baker therefore contends plaintiff and Mr. Chatelain, are “co-employees,” and thus, pursuant to the LHWCA, Baker, as Mr. Chatelain's nominal employer, would be immune from tort liability as to any negligence on Mr. Chatelain's part. Therefore, Baker seeks dismissal of plaintiff's claims against it on grounds both plaintiff and Mr. Chatelain were the borrowed employees of their common borrowing employer, W & T, and therefore Baker is immune from tort liability and any alleged negligence on the part of Mr. Chatelain allegedly causing the injury of the plaintiff.¹

Plaintiff responded to both motions by filing one opposition brief. In his brief, plaintiff merely argues genuine issues of material fact exist, particularly with respect to whether W & T had control over plaintiff for borrowed employee status, and thus, they preclude the entry of summary judgment in either defendant's favor [Doc. 19]. Plaintiff does not specifically dispute or contravene the arguments and/or evidence presented in Baker's motion for summary judgment or present evidence on his own behalf. For the following reasons, both motions for summary judgment are GRANTED, and plaintiff's claims against both W & T and Baker are DENIED AND DISMISSED WITH PREJUDICE.

I. Summary Judgment Standard

“A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.” Fed. R. Civ. Proc. 56(b). Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. Proc. 56(c).

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse 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, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548; 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Supreme Court has instructed:

The 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 a showing 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.”

....

... 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.

Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

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., 37 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, “credibility determinations 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).

II. Factual and Procedural Background

According to the plaintiff's complaint, on or about July 11, 2008, plaintiff was employed by third party Offshore Services of Acadiana, L.L.C. (“OSA”) ² as a cook/steward aboard the fixed production platform known as Ship Shoals 214-E, located on the outer continental shelf in the Gulf of Mexico. The platform in question was owned and/or operated by W & T, and operated and/or supervised by Baker. Plaintiff alleges he slipped and fell while walking on the platform's deck due to a liquid on the deck that presented a dangerous condition.

On November 12, 2008, plaintiff filed suit against W & T and Baker pursuant to the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq., and Article 2315 of the Louisiana Civil Code for negligence for failure to provide plaintiff with a safe place in which to work; failure to comply with any and all applicable safety standards including but not limited to those enumerated by OSHA; failure to exercise reasonable care in discovering and correcting any and all unsafe conditions existing on the premises; failure to properly inspect, maintain, and repair the premises; strict and/or premises liability; hiring untrained and unskilled employees; failure to properly train employees; retaining employees found to be careless and/or unskilled; failure to provide competent and adequate supervisory authority; failure to warn plaintiff of the dangerous and unsafe condition of the premises; breach of legally imposed duties of reasonable care owed by the defendants to the plaintiff; and other acts of negligence and conditions to be proven at trial.

In their motions for summary judgment, W & T and Baker set forth certain undisputed facts. As part of his response to the motions for summary judgment, plaintiff submitted a filing entitled “Statement of Material Facts to...