Tajonera v. Black Elk Energy Offshore Operations, L.L.C., CIVIL ACTION NO. 13-0366 SECTION: "G"(5)

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Docket Numberc/w 14-374 SECTION: "G"(5),c/w 13-5137 SECTION: "G"(5),CIVIL ACTION NO. 13-0366 SECTION: "G"(5),c/w 13-6022 SECTION: "G"(5),c/w 13-2496 SECTION: "G"(5),c/w 13-0550 SECTION: "G"(5),c/w 14-1714 SECTION: "G"(5),c/w 13-5508 SECTION: "G"(5),c/w 13-6413 SECTION: "G"(5),c/w 13-6099 SECTION: "G"(5)
Decision Date04 November 2015

Before the Court are Defendant Black Elk Energy Offshore Operations, LLC's ("BEEOO") "Motion for Partial Summary Judgment"1 and "Motion for Summary Judgment."2 Having considered the motions, the memoranda in support and in opposition, the record, the representations made at oral argument, and the applicable law, the Court will deny the motion for partial summary judgment, and grant in part and deny in part the motion for summary judgment.

I. Background
A. Factual Background

On November 16, 2012, an explosion and fire occurred on the Black Elk Energy West Delta 32 Block Platform, located in the Gulf of Mexico approximately 17 miles southeast of Grand Isle, Louisiana.3 The explosion occurred while welding work was being conducted in connection with a project to upgrade the Lease Automatic Custody Transfer system ("LACT").4 The platform wasowned by Black Elk Energy Offshore Operations, LLC ("BEEOO").5 Wood Group USA, Inc. ("Wood Group"), Compass Engineering & Consultants, LLC ("Compass"), Enviro Tech Systems, LLC ("Enviro Tech"), Grand Isle Shipyard, Inc. ("GIS"), and Shamrock Management, LLC ("Shamrock") were contractors of Black Elk allegedly involved in work being done on the Platform that day.6

B. Procedural Background

This litigation involves nine consolidated cases all arising out of the November 16, 2012 explosion. In cases 13-366 and 13-550, surviving spouses of workers allegedly killed during the explosion have brought negligence and wrongful death claims against BEEOO and its contractors.7 In 13-5137, 13-5508, 13-6022, 13-6099, 13-6413, and 14-374 workers allegedly injured during the explosion have asserted negligence claims against BEEOO and its contractors.8 In 13-2496, GIS filed suit against BEEOO, Enviro Tech, Wood Group, and Compass claiming, among other things, that the defendants' "combined negligence, fault, and/or strict liability," was the cause of the explosion.9

Throughout this litigation, the parties have referred to the plaintiffs in the various cases as follows:

• 13-0366: Tajonera Plaintiffs

• 13-0550: Corporal Plaintiffs

• 13-5137: Canencia Plaintiffs

• 13-5508: Tamayo and Ilagan Plaintiffs

• 13-6022: Plaintiff Voclain

• 13-6413: Srubar and Gipson Plaintiffs

• 14-0374: Plaintiff Dominguez

Recognizing the number of individual plaintiffs spread out across each of these cases, the Court will continue with the parties' naming convention for simplicity.

On May 14, 2014, BEEOO filed a "Motion for Partial Summary Judgment,"10 wherein it argues that, as a matter of law, it did not owe any duty to supervise or provide a safe work environment under Louisiana Civil Code art. 2315 to its independent contractors, or their employees, on the West Delta 32 platform at any time relevant to this case.11 Memoranda in opposition were filed by the Gipson Plaintiffs,12 Plaintiff Voclain,13 the Canencia Plaintiffs,14 the Tamayo Plaintiffs,15the Tajonera Plaintiffs,16 Wood Group,17 GIS,18 and the Dominguez Plaintiff.19 On September 16, 2014, BEEOO filed a reply in support of its motion for partial summary judgment.20

On July 22, 2014, BEEOO filed a "Motion for Summary Judgment," wherein it argues that: (1) the consolidated Plaintiffs and their respective employers were Black Elk's independent contractors; (2) Black Elk neither retained nor exercised operational control over Plaintiffs or their work; and (3) there are no facts with which to impute Black Elk with independent negligence.21 Memoranda in opposition were filed by the Gipson Plaintiffs,22 the Canencia Plaintiffs,23 Plaintiff Voclain,24 Wood Group,25 GIS,26 Plaintiff Dominguez,27 the Tamayo and Ilagan Plaintiffs,28and the Tajonera and Corporal Plaintiffs.29 On September 16, 2014, BEEOO filed a reply brief in supportof its motion for summary judgment.30 The Court held oral argument on both motions on February 25, 2015.31

The Court notes, and the parties acknowledged at oral argument, that BEEOO's motion for summary judgment significantly overlaps with its motion for partial summary judgment. As such, the Court will consider both sets of arguments together.

II. Parties' Arguments
A. BEEOO's Arguments in Support of Summary Judgment

In its Motion for Summary Judgment, BEEOO argues that, pursuant to Master Service Agreements ("MSAs") entered into by the relevant parties, BEEOO is a principal, and GIS, Shamrock and Wood Group are its independent contractors.32 According to BEEOO, under Louisiana law, a principal cannot be held liable for the negligence of its independent contractors unless (1) the suit arises out of the ultrahazardous activities of its independent contractors, and (2) the principal retains operational control over the independent contractor's acts or expressly or impliedly authorizes those acts.33 BEEOO contends that Plaintiffs have not alleged that the work on the WD-32 was ultrahazardous, and that it neither retained nor exercised operational control over any of its independent contractors on WD-32 at the time of the explosion.34

Specifically, BEEOO contends that because it assigned responsibility to its independent contractors for their own activities under the MSAs, it did not retain contractual or actual operationalcontrol over GIS or its contractors.35 BEEOO argues that it had no employee on the platform at any relevant time, and that it "had no involvement whatsoever in the step-by-step decisions and provided no 'how to' instructions with respect to the work performed by the GIS' employees on WD-32."36 BEEOO contends that Curtis Dantin, the GIS Supervisor, testified that he did not receive step-by-step instructions from BEEOO,37 and that Don Moss ("Moss") of Compass did not exercise any level of operational control over GIS or its workers.38 According to BEEOO, Moss spoke to Dantin about the "overall picture of what needed to be accomplished by GIS, but left it up to GIS and Mr. Dantin to decide on how best to accomplish the work."39 BEEOO contends that such limited interactions do not rise to the level needed to exercise control, stating that a principal must have "expressly ordered the independent contractor to engage in an unsafe work practice that eventually caused an injury to the plaintiff."40 Finally, BEEOO argues that Chris Srubar ("Srubar"), Wood Group Lead Operator, testified that neither BEEOO nor Don Moss gave him instructions on how to do his job.41

Largely repeating arguments made in its motion for partial summary judgment,42 BEEOO next contends that it is not independently negligent under Articles 2315 or 2316 because it had no duty to provide its independent contractors with a safe place to work, as evidenced by the fact thateach contractor provided its own supervisor on site.43 Rather, BEEOO argues, the duty to inspect and ensure the safety of personnel on the platform was breached by the parties who voluntarily assumed that duty: BEEOO's independent contractors.44 BEEOO argues that it had no duty to supervise, direct, instruct, or otherwise ensure that its contractors' employees perform their work safely because, under Louisiana law and Fifth Circuit precedent, it was entitled to rely on the expertise of its independent contractors to perform its work in a safe manner.45 Next, BEEOO contends that, as a principal and platform owner, it had no legal duty to correct or eliminate hazards.46 BEEOO's position is that it cannot be held independently negligent because it did not exercise operational control over the LACT upgrade work, had no knowledge as to the exact details of the work, and was not involved in directing the GIS workers.47 Specifically, BEEOO argues that as a condition of entering into an MSA with BEEOO, each independent contractor agreed to retain all responsibility regarding safety and to perform all services in accordance with all applicable safety regulations, precautions, and procedures.48

Finally, BEEOO argues that it was not negligent under Article 2317.1 for alleged defects and hazardous conditions on the platform.49 According to BEEOO, Article 2317.1, characterized byPlaintiffs as a strict liability law, imposes a negligence standard in cases involving defective things based on a custodian's knowledge or constructive knowledge of the defect.50 BEEOO admits that it owns the WD-32 platform, but argues that the platform was not in BEEOO's custody at the time of the incident because BEEOO had no employees or personnel aboard.51 Additionally, BEEOO argues that its platform, piping, and tanks were not defective under Article 2317.1.52 Specifically, BEEOO contends that the purpose of tanks and piping on a production platform is to hold and move hydrocarbons, and "[t]hus, the fact that there were allegedly hydrocarbons in piping or tank aboard an oil and gas platform does not constitute a defect or unreasonably hazardous condition as contemplated by Article 2317.1."53 Even if the pipe was defective because it had not been purged, according to BEEOO, it had no actual or constructive knowledge of the defect.54 Specifically, BEEOO contends that the GIS workers performing hot work on the LACT piping that led to the explosion presumably had no knowledge that the pipe or tank had not been purged; therefore, BEEOO similarly would have had no knowledge of that condition either, particularly because it had no employees on the platform.55

B. Gipson Plaintiffs' Arguments in Opposition

In opposition, Gipson Plaintiffs argue that BEEOO, through its construction superintendent,Monty Richard ("Richard"), specifically directed how the LACT upgrade was going to be performed by providing step...

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