Venezia v. ConocoPhillips Co.
| Decision Date | 08 January 2014 |
| Docket Number | CIVIL ACTION NO: 12-2168 |
| Parties | FRANK VENEZIA v. CONOCOPHILLIPS COMPANY |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is defendant ConocoPhillips Company's motion for summary judgment.1 For the following reasons, the Court grants defendant's motion.
This dispute arises out of an accident that occurred on June 30, 2012, as workers installed a drilling rig structure onto an off-shore oil and gas platform.2 The site of the accident was the deck of a "pony structure," which is an attachment to an oil and gas platform that a drilling rig and other related equipment sit atop.3 The pony structure was fabricated independently of the main platform, but once installation of the drilling rig was complete, the pony structure became a permanent part of the platform.4
Plaintiff Frank Venezia raises claims of negligence againstConocoPhillips Company ("ConocoPhillips").5 ConocoPhillips is part-owner of the MAGNOLIA platform.6 The MAGNOLIA platform is an immobile platform used for oil and gas drilling and production.7 The MAGNOLIA platform is permanently attached to the sea bottom of the Outer Continental Shelf approximately 180 miles south of Cameron, Louisiana.8 ConocoPhillips hired Nabors Offshore Corporation ("Nabors") to design, fabricate, and install a drilling rig and pony structure onto the MAGNOLIA platform.9 Venezia was employed by Nabors.10
Venezia alleges that he injured his knee when his foot slipped into a small opening on the pony structure deck.11 He was walking across the deck to retrieve a tool for a co-worker.12 Venezia stepped over an opening to reach the tool, and as he turned around to return along the same path, his foot slipped into that opening.13 Venezia testified that he was aware ofopenings in the pony structure deck before his accident and aware that at least some of the openings would ultimately be filled with drilling equipment as part of the work Nabors employees were performing to install the pony structure onto the MAGNOLIA platform.14
The central issues in this motion are whether ConocoPhillips owed a duty of care to Nabors employees to maintain the pony structure in a safe condition; whether it exercised operational control over the work that Nabors was contracted to perform; and whether ConocoPhillips had custody or control of the site of Venezia's accident, the pony structure, at the time of the injury.
In May of 2011, ConocoPhillips and Nabors entered into a Master Drilling Contract (the "Contract").15 Under the terms of the Contract, ConocoPhillips hired Nabors as an independent contractor to drill, complete, plug or abandon wells as provided in subsequent Drilling Orders.16 The Contract gives ConocoPhillips the right to stop work by Nabors at its own discretion or take over work from Nabors in the event of performance default or safety violations by Nabors.17 Inaddition, the Contract allows ConocoPhillips to require Nabors to remove any Nabors employee from the job site.18 The Contract requires Nabors to report any problem, accident, or occurrence that results in injuries and to furnish daily drilling reports to ConocoPhillips.19
The Contract also includes an attached document that sets the minimum safety expectations for contractors hired by ConocoPhillips.20 The Contractor Health, Safety, and Environment (HSE) Requirements attached to the Contract begin by saying that "[Nabors] shall be solely responsible for the safety and health of its Personnel."21 The HSE Requirements also require Nabors to "[use] its own experience and knowledge, [to] ascertain that the premises are safe for the proposed work before commencing operations."22
The HSE Requirements contain a chart that guides what are known as "Process Safety Management" relationships between ConocoPhillips and Nabors. The chart governs only those activities occurring on facilities governed by the Occupational Safety and Health Administration's ("OSHA") standard for ProcessSafety Management of Highly Hazardous Chemicals, codified at 29 C.F.R. § 1910.119. ConocoPhillips's responsibilities under the PSM chart mainly relate to identifying safe work practices and ensuring that Nabors complies with those practices.23 For example, according to the PSM Requirements chart, ConocoPhillips must "identify safe work practices that [Nabors] needs to follow," initiate a questionnaire to obtain and evaluate the safety and health performance of Nabors, conduct periodic safety and health performance reviews of Nabors, periodically inspect to ensure that Nabors employees follow safe work practices, identify unique hazards, and investigate accidents.24
On May 15, 2012, pursuant to the Contract, ConocoPhillips and Nabors executed a Drilling Order and Well Specification under which ConocoPhillips hired Nabors as an independent contractor to furnish a complete and functional drilling rig on the MAGNOLIA platform.25 Additionally, Nabors designed, fabricated and installed the pony structure, which holds the drilling rig and equipment and became a permanent part of the MAGNOLIA platform after its installation of the drilling rig was complete.26
Although Venezia completed a ConocoPhillips safetyorientation program before beginning work on the pony structure, Venezia testified that he took all directions and instructions from his Nabors supervisor and never took directions or instructions from a ConocoPhillips employee.27 Venezia further testified that Nabors handled the actual operations of the installation work of the pony structure, and a Nabors employee led the job safety analysis meetings associated with the work.28
ConocoPhillips Well Safety and Environment Representative, Byron McMichael, testified that Nabors is responsible for the actual day-to-day operations on the MAGNOLIA platform, and, even though ConocoPhillips provides a crane to move equipment, Nabors employees operate it and make all decisions regarding when and where to move equipment.29 McMichael also testified that he participated in some, but not all, safety meetings and job safety analysis meetings with Nabors employees.30
Mark Hildebrand, the Drilling Superintendent for ConocoPhillips, indicated that ConocoPhillips was responsible for the MAGNOLIA platform itself but not for the pony structure. He also affirmed that at the time of Venezia's incident, the installation of the drilling rig onto the platform was only 50%complete.31 Hildebrand further indicated that Nabors was reimbursed for the design, fabrication, and associated material costs of the pony structure.32 Additionally, Hildebrand testified that on the day of Venezia's accident, ConocoPhillips crew members were present on the MAGNOLIA platform, although he himself was not present.33
ConocoPhillips moves for summary judgment on the grounds that, under Louisiana law, a principal is liable for the negligence of its independent contractor only if the contract work involved ultrahazardous activities or the principal retains operational control of the work. It argues that no material issue of fact exists to whether either element is present here. ConocoPhillips further argues that it did not have custody of the area where the accident occurred, the pony structure, and that it cannot be liable for a defect in the construction of the pony structure because the drilling rig was under construction at the time of Venezia's accident. Venezia argues that ConocoPhillips is liable for its own acts of negligence on the pony structure, despite the independent contractor-status of Venezia's employer, Nabors. Venezia also argues that ConocoPhillips retained operational control of Nabors' activities on the pony structure,and that it was in custody of the pony structure at the time of the accident.
Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth ultimate or conclusory facts and conclusions of law are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (internal quotation marks omitted).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence that would entitle it to a directed verdict if the evidence went uncontroverted at trial." Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263-64 (5thCir. 1991)(citation omitted). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324.
The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for...
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