Perron v. Bell Maintenance and Fabricators, Inc. ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-3351
_____________________
WINSTON J. PERRON,
Plaintiff-Appellant,
UNITED STATES FIRE INSURANCE COMPANY,
Intervenor-Appellant,
VERSUS
BELL MAINTENANCE AND FABRICATORS, INC.,
Defendant-Appellee.
____________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
___________________________________________________
(August 21, 1992)
Before BRIGHT,1 JOLLY, and BARKSDALE, Circuit Judges.
PER CURIAM:
Winston Perron and Michael Lee having been nominal employees
of different companies, but "borrowed servants" of Gulf Oil, when
Perron was allegedly injured on Gulf's offshore platform by Lee's
negligence, the issue in this appeal is whether the bar under the
Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. §
933(i), for suits against a co-employee likewise applies to this
tort action (respondeat superior) by Perron against Lee's employer,
Bell Maintenance & Fabricators Co., as held by the district court
in granting summary judgment for Bell. We AFFIRM.
1
Senior Circuit Judge of the Eighth Circuit, sitting by
designation.
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I.
In early 1985, Perron, an operator on a Gulf production
platform on the outer continental shelf, allegedly slipped and fell
because of oil left on the platform by Lee. Gulf did not directly
employ Perron or Lee, but instead, contracted with businesses that
supply oil companies with labor. Danos & Curole Marine
Contractors, Inc. (Danos), employed Perron; Bell, Lee.
Perron sued Gulf in district court in January 1986; but
summary judgment was rendered against him on the basis that he was
Gulf's "borrowed servant" and that, therefore, under 33 U.S.C. §
905(a), his exclusive remedy was workers' compensation under the
LHWCA, 33 U.S.C. § 901 et seq.2 This court affirmed in an
unpublished opinion. Perron v. Gulf Oil Corp., 893 F.2d 344 (5th
Cir. 1989), cert. denied, __ U.S. __, 110 S. Ct. 3273 (1990).
Perron is now receiving compensation provided by Danos, his nominal
2
The liability of an employer ... shall be
exclusive and in place of all other liability of
such employer to the employee ... on account of
such injury ... except that if an employer fails to
secure payment of compensation as required by this
chapter, an injured employee ... may elect to claim
compensation under the chapter, or to maintain an
action at law or in admiralty for damages on
account of such injury .... In such action the
defendant may not plead as a defense that the
injury was caused by the negligence of a fellow
servant .... For purposes of this subsection, a
contractor shall be deemed the employer of a
subcontractor's employees only if the subcontractor
fails to secure the payment of compensation as
required by section 904 ....
33 U.S.C. § 905(a).
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employer, pursuant to its contract with Gulf, as required by the
LHWCA. See note 2, supra.
In early December 1989, almost four years after filing suit
against Gulf, and while the appeal from the summary judgment in
favor of Gulf in that action was pending in this court (the opinion
was rendered late that month), Perron brought this third-party
action in state court against Bell, Lee's nominal employer, under
a theory of respondeat superior. Bell removed to federal court,
but was unsuccessful in having the action transferred to the
district where the action against Gulf had been filed. In early
1991, it was awarded summary judgment, the district court holding
that the action was barred by 33 U.S.C. § 933(i), because Lee and
Perron were both "in the same employ".3
The district court denied Perron's motion to reconsider,
noting that Perron had been held by this court to be a "borrowed
servant" of Gulf and that Perron did not dispute Bell's contention
that Lee was also a "borrowed servant" of Gulf. Therefore, it held
again that Perron and Lee were "in the same employ", even though
nominally employed by different companies. The district court
rejected Perron's contention that Louisiana law should be applied
to the dispute, holding that the Outer Continental Shelf Lands Act
3
Section 933(i) provides:
The right to compensation or benefits under [the
LHWCA] shall be the exclusive remedy to an employee
when he is injured ... by the negligence or wrong
of any other person or persons in the same employ:
Provided, That this provision shall not affect the
liability of a person other than an officer or
employee of the employer.
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(OCSLA), 43 U.S.C. § 1331 et seq., "provides that the LHWCA is the
compensation law applicable to this case, preempting the
application of the idiosyncracies of the Louisiana Workers'
Compensation scheme."
II.
Summary judgment is appropriate if the record
discloses "that 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." ... In
reviewing the summary judgment, we apply the same
standard of review as did the district court.
Sims v. Monumental General Ins. Co., 960 F.2d 478, 479 (5th Cir.
1992) (quoting Fed. R. Civ. P. 56(c)). Because we need only apply
the law to undisputed facts, this case is well suited to summary
judgment. See id. at 480.
Under OCSLA, payments are to be made under the LHWCA for
"disability or death of an employee resulting from any injury
occurring as the result of [offshore] operations" of the type
involved in this action. 43 U.S.C. § 1333(b). This appeal turns
on 33 U.S.C. § 933(i), which substitutes LHWCA remedies exclusively
for an action for an injury caused by a person "in the same
employ". See note 3, supra. While "``this provision limits an
employee's rights, it ... at the same time expand[s] them by
immunizing him against suits where he negligently injures a fellow
worker.'" Sharp v. Elkins, 616 F. Supp. 1561, 1565 (W.D. La. 1985)
(emphasis omitted) (quoting Congressional comments on § 933(i)).
As stated, the injured co-employee's exclusive remedy is payments
guaranteed under the LHWCA. See Johnson v. American Mutual
Liability Ins. Co., 559 F.2d 382, 390-91 (5th Cir. 1977). Under
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this scheme, the injured employee may receive a smaller sum than a
liability judgment, but the LHWCA payments are more certain and
allow the injured worker to avoid the hazards of litigation. See
id. (construing § 905(a) immunity to extend to employer's liability
carrier).
Perron contends that Bell should not be vested with § 933(i)
immunity, because it is not his employer and did not provide
workers' compensation payments to him (there was no quid pro quo).
He also contends that he has a cause of action against Bell under
Louisiana law.
A.
Perron's first contention is based on the assumption that §
933(i) immunizes only the employer of the injured employee. Perron
cites no authority for this proposition, and we know of none. He
merely cites several cases in which this court held that employers
are protected by § 905(a) from liability to their employees. See,
e.g., Gaudet v. Exxon Corp., 562 F.2d 351, 356 (5th Cir. 1977),
cert. denied, 436 U.S. 913 (1978). Bell claims the protection of
§ 933(i), not § 905(a). Section 933(i) does not protect employers;
it protects negligent co-employees. See id. at 354 n.4.
1.
Perron maintains that recovery is not barred against Bell for
injuries caused by Lee's negligence, because, as used in § 933(i),
Lee was not "in the same employ" as he; that Lee was in the employ
of Bell, while he was in the employ of Danos. In support, Perron
asserts that Lee was not a borrowed servant of Gulf, but the
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uncontested material facts were that "[a]ll control and direction
over Bell Maintenance employees such as Lee was exercised by Gulf"
and that "[o]ther than the direct supervision of ... Lee by Herman
Marshall [a Gulf mechanic], Gulf exercised the same control over
... Lee as Gulf exercised over Perron."4
A borrowed servant becomes the employee of the borrowing
employer, Standard Oil v. Anderson, 212 U.S. 215 (1909), and "is to
be dealt with as the servant of the [borrowing employer] and not of
the [nominal employer]." Denton v. Yazoo & M.V. Railway Co., 284
U.S. 305 (1932). In Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13
(5th Cir. 1969), our court adopted the borrowed servant rule for
the LHWCA. See, e.g., Melancon v. Amoco Prod. Co., 834 F.2d 1238,
1244 n.10 (5th Cir. 1988); Capps v. N.L. Baroid-NL Indus., 784
F.2d 615 (5th Cir.), cert. denied, 479 U.S. 838 (1986); Gaudet, 562
F.2d at 355-57. And, borrowed servant status is a question of law.
E.g., Melancon, 834 F.2d at 1244.
As noted, in Perron's action against Gulf, this court held
that Perron was a borrowed servant of Gulf. Furthermore, as
referenced above, and as the district court noted, Perron did not
dispute, in opposition to summary judgment in this action, that Lee
and Perron were both borrowed servants of Gulf; in fact, he
admitted that they were. He stated:
[Perron] does not dispute that Lee was a borrowed
servant of Gulf. Perron and Lee were borrowed
servants for Gulf on the platform. However, the
4
The day shift consisted only of Marshall and Lee; the night
shift, of Perron and another Danos employee.
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plaintiff contends that Lee was not a "co-employee"
to serve as a bar to this tort action.
(In his supporting brief for his motion to reconsider, Perron took
a different tack and contended that Perron was not the borrowed
servant of Bell.) It goes without saying that Perron cannot admit
in district court that Lee was a borrowed servant of Gulf but deny
that here.
In sum, Perron and Lee were co-workers in every meaningful
sense of the term. And, because they were borrowed servants/co-
employees of the same employer (Gulf), a fortiori, they were
"persons in the same employ" under § 933(i).
2.
Given that Perron is barred by § 933(i) from bringing an
action against Lee, at issue is whether Perron can bring this
respondeat superior action against Bell, Lee's nominal employer.
Consistent with the LHWCA's comprehensive scheme, Perron is barred
from doing so.
In Nations v. Morris, 483 F.2d 577 (5th Cir. 1973), cert.
denied, 414 U.S. 1071 (1973), as here, the plaintiff was injured by
an allegedly negligent co-employee on an oil platform on the outer
continental shelf. Id. at 579. The plaintiff sued his co-
employee's liability insurer under Louisiana's direct action
statute. Id. at 580. Similar to the vicarious liability claimed
here, the Nations co-employee and his insurer were solidary
obligors (jointly and severally liable) under Louisiana law. Id.
at 586-87. Therefore, if the § 933(i) defense was not personal to
the co-employee, but rather "inhere[d] in the nature of the
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obligation", the insurer could assert it against the injured
plaintiff. Id. at 587.
Nations concluded that the § 933(i) defense was available to
the co-employee's solidary obligors. Id. at 587-89. It reasoned
that §§ 933(i) and 905(a) do not merely remove the remedy of
proceeding directly against one tortfeasor to enforce an otherwise-
preserved right, but also "completely obliterate[] the rights at
common, civil or maritime law against Employer and fellow
employee." Id. at 587.
Congress ... has determined that the relationship
gives rise only to compensation liabilities. The
nature of the obligation is that there is no -- the
word is no -- obligation.
* * *
[LHWCA] is comprehensive. It has
adjusted and rearranged the rights of maritime
and other specifically covered workers. We
could not hold that [LHWCA] merely cut off the
remedy against the fellow employee and that
since the amendment in 19595 there has
5
Section 933 was amended in 1959 for the purpose of
"immuniz[ing] fellow employees against damages suits." S. Rep. No.
428, 86th Cong., 1st Sess., reprinted in 1959 U.S.C.C.A.N. 2134.
The rationale of this change in the law is that
when an employee goes to work in a hazardous
industry he encounters two risks. First, the risk
inherent in the hazardous work and second, the risk
that he might negligently hurt someone else and
thereby incur a large common-law damage liability.
While it is true that this provision limits an
employee's rights, it would at the same time expand
them by immunizing him against suits where he
negligently injures a fellow worker. It simply
means that rights and liabilities arising within
the "employee family" will be settled within the
framework of the [LHWCA].
Id.
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subsisted a remedy-less right against the co-worker
which had no utility until the passage of the
Direct Action Statute and OCSLA with its surrogate
out-reach. ... [T]he comprehensive scheme known as
[LHWCA] is the whole source of rights and remedies.
Nations, 483 F.2d at 587-88 (emphasis in original) (footnote
omitted). Restated, "[t]he prohibition of suits between co-workers
under the [LHWCA] is not a personal defense but may be claimed by
the negligent co-workers' solidary obligors." Louisiana Land &
Exploration Co. v. Amoco Prod. Co., 878 F.2d 852, 855 (5th Cir.
1989) (citing Nations, 483 F.2d at 589).
This respondeat superior action against Bell arises out of its
employee's, Lee's, alleged negligence. However, Perron has no
right to recover for Lee's negligence except as provided by the
LHWCA's comprehensive scheme; the LHWCA payments are substituted
for any right Perron might have had to sue Lee's employer under
respondeat superior. (As noted, Perron has been receiving such
payments from its nominal employer, Danos). Nations extended §
933(i)'s protection to the solidary obligors of negligent co-
employees. And, to the extent that Bell is vicariously liable for
Lee's negligence, they are solidary obligors. Just as the
liability insurer in Nations was protected by § 933(i), so too is
Bell. Simply put, Perron cannot assert against Bell, the employer,
his non-existent right against Lee, its employee. The fact that
Bell is not Perron's employer is irrelevant to whether § 933(i)
bars his action against Bell.6
6
As support for challenging the § 933 (i) bar, Perron states
that "Bell ... would never be obligated to Danos ... employees
[such as Perron] for compensation benefits and, thus, there is no
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B.
Despite OCSLA making the LHWCA applicable to injuries
occurring in operations of the type involved in this action, Perron
asserts that, under OCSLA, Louisiana law should govern this case.
But, by its terms, OCSLA makes state law applicable only when it is
not inconsistent with federal law, providing in pertinent part:
To the extent that they are applicable and not
inconsistent with this subchapter or with other
Federal laws ..., the civil and criminal laws of
each adjacent State ... are hereby declared to be
the law of the United States for [the outer
continental shelf adjacent to the state].
43 U.S.C. § 1333(a)(2)(A) (emphasis added).
Section 933(i) provides that LHWCA payments "shall be the
exclusive remedy to an employee when he is injured ... by the
negligence or wrong of any other person or persons in the same
employ." State law is, therefore, preempted by § 933(i) in this
instance.
III.
Accordingly, the judgment is
AFFIRMED.
quid pro quo between Bell and Perron", relying on the concurring
opinion in West v. Kerr-McGee Corp., 765 F.2d 526 (5th Cir. 1985)
(dealing with § 905 immunity). Section 933(i) bars liability,
regardless of whether the otherwise-liable defendant provided LHWCA
payments to the plaintiff. Perron confuses § 933(i) with § 905(a),
which permits an injured employee to seek recovery at law if his
employer "fail[ed] to secure payment of compensation as required by
this chapter". This exception is not found in § 933(i).
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