Sanders v. Vigor Fab, LLC , 308 Or. App. 282 ( 2020 )

282
Argued and submitted August 7, affirmed December 30, 2020
Ronald A. SANDERS,
Plaintiff-Appellant,
v.
VIGOR FAB, LLC,
an Oregon limited liability company,
Defendant-Respondent.
Multnomah County Circuit Court
17CV37480; A168740
480 P3d 999
After a workplace injury, plaintiff brought a negligence claim against Vigor
Fab, LLC, under the Oregon Employer Liability Act (ELA), ORS 654.305 to
654.336. At the time of his injury, he was formally employed by a different com-
pany, Vigor Marine, LLC. Both Vigor Fab and Vigor Marine are wholly owned
subsidiaries of Vigor Industrial, LLC. Before bringing his ELA claim, plain-
tiff received workers’ compensation for his injury from Vigor Marine under the
federal Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 USC
§§ 901 to 950. The trial court granted Vigor Fab’s motion for summary judg-
ment on his ELA claim, concluding that, under federal labor law, Vigor Fab and
Vigor Marine operated as a “single entity,” and that their status as a single entity
barred plaintiff’s state law claim under the LHWCA’s exclusive remedy provision.
Plaintiff appeals, assigning error to that ruling, and arguing that Vigor Fab and
Vigor Marine do not meet the criteria of a “single entity” for LHWCA purposes.
Held: The trial court did not err. Based on the factors articulated in Claudio v.
United States, 907 F Supp 581 (EDNY 1995), Vigor Fab and Vigor Marine are a
single entity for LHWCA purposes. The LHWCA therefore bars plaintiff’s ELA
claim.
Affirmed.
Karin Johana Immergut, Judge.
Charles Robinowitz argued the cause and filed the briefs
for appellant.
Alice Newlin argued the cause for respondent. Also on
the brief were James P. McCurdy and Lindsay Hart, LLP.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Affirmed.
Cite as 308 Or App 282 (2020) 283
MOONEY, J.
Plaintiff brought this negligence action against
Vigor Fab, LLC (Vigor Fab) under Oregon’s Employer
Liability Act (ELA), ORS 654.305 to 654.336, seeking to
recover damages for injuries he sustained while trimming
a steel deckplate for a barge being built by Vigor Fab. He
had already filed a workers’ compensation claim against
his employer, Vigor Marine, LLC (Vigor Marine), under
the Longshore and Harbor Workers’ Compensation Act
(LHWCA), 33 USC §§ 901 - 950. The trial court ruled on
summary judgment that Vigor Fab and plaintiff’s employer,
Vigor Marine, were functionally integrated and, therefore,
a “single entity” for purposes of the LHWCA. Consequently,
Vigor Fab was, like Vigor Marine, immune from tort liabil-
ity and plaintiff’s case was dismissed as barred by section
905 of the LHWCA. Plaintiff assigns error to the court’s
granting of Vigor Fab’s summary judgment motion, arguing
that he was employed by Vigor Marine, not by Vigor Fab. He
argues further that there remains a genuine issue of mate-
rial fact concerning whether Vigor Fab and Vigor Marine
are separate entities or a single entity for purposes of the
LHWCA. We conclude that the trial court did not err in
granting Vigor Fab’s motion for summary judgment and we,
therefore, affirm.
The question is whether, on the record presented,
there exists a genuine issue as to whether Vigor Fab and
Vigor Marine are a single entity entitling Vigor Fab to invoke
the exclusive remedy provision of the LHWCA as a bar to
plaintiff’s ELA claim. On review of a grant of summary
judgment, we view the facts and all reasonable inferences
that may be drawn from them in favor of the nonmoving
party—in this case, plaintiff. Jones v. General Motors Corp.,
325 Or 404, 408, 939 P2d 608 (1997). Summary judgment is
appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law. ORCP 47 C. That standard is met when “ ‘no objectively
reasonable juror could return a verdict for the adverse party
on the matter that is the subject of the motion for summary
judgment.’ ” Robinson v. Lamb’s Wilsonville Thriftway, 332
Or 453, 455, 31 P3d 421 (2001) (quoting Jones, 325 Or at
408). We state the facts consistently with that standard.
284 Sanders v. Vigor Fab, LLC
Vigor Industrial, LLC (Vigor Industrial) owns sev-
eral companies, including the two wholly owned subsidiaries
involved here—Vigor Fab and Vigor Marine. Vigor Industrial
is in the business of shipbuilding, ship repair, and complex
industrial fabrication. The companies that comprise Vigor
Industrial operate under common ownership, management,
and control, and they share common executive leadership,
senior management, and officers. As the parent entity, Vigor
Industrial provides common core services and departments
to all subsidiaries, including finance, payroll, information
technology, human resources, procurement, risk manage-
ment, environmental, and legal. Vigor Industrial’s human
resources department manages personnel matters for Vigor
Fab and Vigor Marine, including overseeing employee bene-
fits, hiring, termination, disciplinary issues, medical leave,
and work-related injuries. Vigor Industrial calculates prof-
its and losses on a consolidated basis rather than separately
for each wholly owned entity. Vigor Industrial also provides
procurement services and credit for both Vigor Fab and
Vigor Marine, and it covers Vigor Fab and Vigor Marine
employees for workplace injuries through the same certifi-
cate of insurance.
Vigor Fab builds ships and Vigor Marine repairs
and maintains ships. They operate out of the same location,
albeit from opposite ends of Vigor Industrial’s Swan Island
Shipyard facility on the Willamette River in Portland. And
while Vigor Fab and Vigor Marine maintain their own tools
and equipment, and conduct their own day-to-day opera-
tions, they share those premises, tools, and equipment, and
they occasionally share personnel. Each entity hires and
manages its own employees, but with the assistance of Vigor
Industrial’s human resources and central staffing depart-
ments. There are some notable differences between employ-
ees of Vigor Fab and those of Vigor Marine, including differ-
ent job titles, different benefits, and different wage scales.
Employees, customers, and outside regulators also generally
regard Vigor Fab and Vigor Marine as separate entities.
Vigor Industrial processed plaintiff’s job applica-
tion, and it administered and processed his new hire paper-
work, drug testing, medical testing, and orientation and
training documentation. At the time of his injury, plaintiff
Cite as 308 Or App 282 (2020) 285
was employed by Vigor Marine as a boilermaker and welder.
According to plaintiff, Vigor Marine would assign him to
complete limited jobs for Vigor Fab “about once a year.”
And, according to Vigor Industrial’s Secretary and General
Counsel, Ballou, such assignments were made pursuant to
“an unwritten but understood ‘service sharing agreement’
between” Vigor Industrial’s subsidiaries. Plaintiff was on
temporary assignment with Vigor Fab when he was injured.
Plaintiff filed an LHWCA claim for workers’ com-
pensation benefits shortly after the incident, naming Vigor
Marine as his employer. Vigor Industrial’s human resources
and legal departments handled that claim, assisting Vigor
Marine in its defense of that claim, and coordinating with
Vigor Industrial’s insurance carrier regarding plaintiff’s
benefits and coverage. Plaintiff filed this negligence case
against Vigor Fab, alleging that his employer, Vigor Marine,
was a “separate company from” Vigor Fab. He also alleged
that the work he was performing for Vigor Fab was inher-
ently dangerous, bringing it under Oregon’s ELA. ORS
654.305.
Vigor Fab moved for summary judgment, arguing
that “[p]laintiff is trying to ‘double-dip’ from two entities—
Vigor Fab and Vigor Marine—which operate as a sin-
gle entity for purposes of the exclusivity provision of the
LHWCA.” Vigor Fab supported its motion with the decla-
ration of Ballou, who testified to the business and labor
practices of Vigor Industrial, Vigor Fab, and Vigor Marine.
Relying on the “single entity doctrine,” which we discuss
below, Vigor Fab argued that it qualified as plaintiff’s
employer under the LHWCA and that plaintiff’s ELA claim
was barred because his exclusive remedy was the workers’
compensation claim he had already filed.
In opposition to Vigor Fab’s motion, plaintiff submit-
ted a declaration with several attached exhibits. In that dec-
laration, plaintiff stated that he was hired by Vigor Marine,
received payments from Vigor Marine, was supervised by
employees of Vigor Marine, and that no one working for
Vigor Fab had the authority to fire him. He also stated that
he had “never heard of an ‘unwritten but understood service
sharing agreement’ between Vigor Marine and Vigor Fab,”
286 Sanders v. Vigor Fab, LLC
and that, in his experience, “employees for those two com-
panies are completely separate and not shared freely[.]” He
nevertheless acknowledged that he was working on a Vigor
Fab job at the time of his injury, that he worked on Vigor
Fab projects “about once a year,” and that Vigor Fab com-
municated with his Vigor Marine supervisors, who directed
him on Vigor Fab jobs. He emphasized the separate legal
status of Vigor Fab and Vigor Marine and the fact that they
each have their own website to support his argument that
an issue of fact exists as to whether they are a single entity
under the LHWCA.
The trial court noted that the parties were in agree-
ment about the applicable legal test: Whether two discrete
companies represent a single entity for purposes of LHWCA
liability is governed by the “single entity test” articulated
in Claudio v. United States, 907 F Supp 581, 586-89 (EDNY
1995). The court applied the single entity test to the record
before it and concluded that there was no genuine issue of
material fact and that Vigor Fab and Vigor Marine were
“functionally integrated.” As such, the court held, they qual-
ify as a single entity entitling both Vigor Marine and Vigor
Fab to the tort immunity provided by the LHWCA exclusive
remedy provision, barring plaintiff’s ELA claim as a matter
of law. It granted the motion for summary judgment and
thereafter dismissed plaintiff’s lawsuit.
Plaintiff appeals, arguing that the trial court erred
by granting Vigor Fab’s motion. He renews the argument
that he made before the trial court: that genuine issues of
material fact remain on the question of whether Vigor Fab
and Vigor Marine are a single entity under the LHWCA and
that Vigor Fab is not entitled to judgment as a matter of
law.
The LHWCA is a federal workers’ compensation law
that covers persons engaged in maritime employment:
“The term ‘employee’ means any person engaged in
maritime employment, including any longshoreman or
other person engaged in longshoring operations, and any
harbor-worker including a ship repairman, shipbuilder,
and ship-breaker * * *.”
33 USC § 902(3).
Cite as 308 Or App 282 (2020) 287
“Except as otherwise provided in this section, compen-
sation shall be payable under this chapter in respect of dis-
ability or death of an employee, but only if the disability or
death results from an injury occurring upon the navigable
waters of the United States (including any adjoining pier,
wharf, dry dock, terminal, building way, marine railway,
or other adjoining area customarily used by an employer in
loading, unloading, repairing, dismantling, or building a
vessel).”
33 USC § 903(a). The LHWCA provides the exclusive remedy
for longshoremen and harbor workers against their employers
for on-the-job injuries:
“The liability of an employer prescribed in section 904
of this title shall be exclusive and in place of all other lia-
bility of such employer to the employee * * * 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 or death.”
33 USC § 905(a). Federal courts have interpreted the law’s
exclusivity provision as “absolute” because it “ ‘completely
obliterates the rights at common, civil or maritime law
against’ ” an employer. Fisher v. Halliburton, 703 F Supp 2d
639, 656 (SD Tex 2010), vac’d and rem’d on other grounds,
667 F3d 602 (5th Cir 2012) (quoting Nations v. Morris,
483 F2d 577, 587 (5th Cir 1973)); see also Ross v. DynCorp,
362 F Supp 2d 344, 352 (D DC 2005) (explaining that 33
USC section 905(a) “ ‘destroys any underlying tort liability
of the employer’ ” and “necessarily displaces all derivative
common-law causes of action based on the injury or death of
a covered employee caused by employer negligence” (quoting
Robin v. Sun Oil Co., 548 F2d 554, 556 (5th Cir 1977))).
Congress crafted the LHWCA exclusive remedy
provision to benefit both employers and employees; like
other workers’ compensation schemes, it operates as a “clas-
sic quid pro quo.” Bush v. Eagle-Picher Indus., 927 F2d 445,
448 (9th Cir 1991). The law
“was designed to strike a balance between the concerns of
longshoremen and harbor workers on the one hand, and
their employers on the other. Employers relinquished their
288 Sanders v. Vigor Fab, LLC
defenses to tort actions in exchange for limited and pre-
dictable liability. Employees accept the limited recovery
because they receive prompt relief without the expense,
uncertainty, and delay that tort actions entail.”
Morrison-Knudsen Constr. Co. v. Director, 461 US 624, 636,
103 S Ct 2045, 76 L Ed 2d 194 (1983).
The exclusive remedy provision bars tort claims
against LHWCA-compliant employers, which may include
multiple entities that are subject to single management
and control and that effectively operate as a “single entity.”1
Claudio, 907 F Supp at 588; see also Price v. Atlantic Ro-Ro
Carriers, Inc., 262 F Supp 3d 289, 294 (D Md 2017) (apply-
ing the single entity test in a third-party indemnity action
and concluding that an employer cannot be held liable to
a defendant against whom an employee has a non-LHWCA
claim). The Claudio court applied the single entity doctrine
to two companies in an LHWCA case after reviewing New
York workers’ compensation law as well as the application
of the doctrine in National Labor Relations Act (NLRA) and
Sherman Act cases. Claudio, 907 F Supp at 586-87; see also
Price, 262 F Supp 3d at 294-95; Longshore v. Davis Sys. of
Capital Dist., 759 NYS 2d 204, 206, 304 AD 2d 964 (2003).
Federal courts have long considered New York’s interpre-
tation of its law “very persuasive” when construing the
LHWCA, see, e.g., Iacone v. Cardillo, 208 F2d 696, 697-98
(2d Cir 1953), and have relied on that body of New York
law to develop the single entity doctrine in both LHWCA
and NLRA cases concerning employee efforts to recover
from multiple entities, Claudio, 907 F Supp at 586. See also
Smither & Co. v. Coles, 242 F2d at 220, 222-23 (DC Cir), cert
den, 354 US 914 (1957).
The single entity doctrine disregards separate cor-
porate existence, instead treating separate entities as single
1
Although we are not bound by the interpretations of federal law by federal
district courts or federal courts of appeal, Page v. Palmateer, 336 Or 379, 390,
84 P3d 133, cert den, 543 US 866 (2004), both parties rely on the framework
developed in those federal cases to support their respective arguments about the
proper construction of the LHWCA. We see no reason to depart from that frame-
work. See State v. Kell, 303 Or 89, 95, 734 P2d 334 (1987) (“[T]here is no value
in being different merely for the sake of the difference.”). Accordingly, we apply
those courts’ interpretation of the LHWCA.
Cite as 308 Or App 282 (2020) 289
entity when (1) their operations are interrelated; (2) they
have common management; (3) their labor relations are
centrally controlled; and (4) they have common ownership.
Claudio, 907 F Supp at 588; see also Grane Health Care v.
NLRB, 712 F3d 145, 150 (3d Cir 2013); NLRB v. Browning-
Ferris Indus. of Pa., Inc., 691 F2d 1117, 1122 (3d Cir 1982).
So long as the entities’ labor and employment operations
are functionally integrated, and they follow the LHWCA
insurance requirements, the exclusive remedy provision will
apply, and those entities will be insulated from tort liability
for their employee’s on-the-job injuries. In Claudio, for exam-
ple, the court concluded that the two companies at issue
functioned as a single entity because they shared the same
corporate offices, had the same address, post office box, and
phone number, jointly allocated the costs and profits of their
jobs, and worked together to complete their jobs. In addition,
the court noted that the industry recognized the two compa-
nies as one entity. Accordingly, the court concluded that the
exclusive remedy provision applied to both. Claudio, 907 F
Supp at 588.
Price involved entities that had separate accounting
practices, maintained separate business records, and billed
separately for their services. 262 F Supp 3d at 294. However,
they were subject to the direction of the same board of direc-
tors that managed the finances for each entity, and they often
exchanged capital and labor. They also shared control over
labor relations and covered their employees under the same
workers’ compensation insurance policy. The court granted
summary judgment to the named entity on the basis of the
single entity doctrine and dismissed the third-party plain-
tiff’s indemnity action against it. The court explained that
common management, overlapping officers, identical board
of directors, and common ownership rendered the two com-
panies functionally integrated and thus a “single entity” for
the purposes of the LHWCA. Id. at 296.
Turning to the facts and arguments presented on
summary judgment in this case, we understand plaintiff
to present two distinct arguments: (1) because Vigor Fab
“asked the trial court to basically pierce the corporate veil,
without a showing of fraud or other improper conduct,” the
court could not grant its motion for summary judgment,
290 Sanders v. Vigor Fab, LLC
and (2) he raised a sufficient question of fact—as to whether
Vigor Fab and Vigor Marine were a single entity—to defeat
defendant’s motion for summary judgment.
We first address plaintiff’s corporate veil argument
because it presents a threshold legal question about whether
the trial court misapplied the relevant analytical frame-
work.2 We reject that argument because the court did not, in
fact, “pierce the corporate veil.” Rather, it properly applied
the relevant federal precedent to determine whether Vigor
Fab and Vigor Marine constitute a “single entity” for pur-
poses of the LHWCA exclusive remedy provision. Piercing
the corporate veil is a legal strategy used to hold share-
holders liable for the actions or debts of the corporation
after the shareholders improperly avail themselves of the
corporate form as a protection from direct liability. Amfac
Foods v. Int’l Systems, 294 Or 94, 108, 654 P2d 1092 (1982);
OPERB v. Simat, Helliesen & Eichner, 191 Or App 408, 429,
83 P3d 350 (2004). That is not what happened here.
It is true, as plaintiff points out, that the Sixth
Circuit, in a workers’ compensation case, Boggs v. Blue
Diamond Coal Co., 590 F2d 655 (6th Cir), cert den, 444 US
836 (1979), likened a defensive strategy similar to the one
Vigor Fab employed here to “piercing the corporate veil.”
However, Boggs is not an LHWCA case, and it predates each
of the LHWCA cases that employ the single entity doctrine.
Moreover, the law often treats separate corporations as sin-
gle entities for limited purposes. See, e.g., Copperweld Corp.
v. Independence Tube Corp., 467 US 752, 771, 104 S Ct 2731,
81 L Ed 2d 628 (1983) (viewing a parent and wholly owned
subsidiary as one corporate entity for the purposes of deter-
mining liability under section 1 of the Sherman Act); Radio
& Television Broadcast Technicians Local 1264 v. Broadcast
Service of Mobile, Inc., 380 US 255, 256, 85 S Ct 876, 13
L Ed 2d 789 (1965) (under the NLRA, “several nominally
2
We do not understand plaintiff to argue that the trial court applied the
entirely wrong analytical framework to the facts of the case. Rather, we under-
stand him to take issue with elements of its analysis under Claudio and Price that
look beyond the corporate form of Vigor Fab, Vigor Marine, and Vigor Industrial
to conclude that they operate as a “single entity” for the purposes of the LHWCA.
He otherwise agrees that Claudio and Price apply—just that they do not permit
the court to “pierce the corporate veil.”
Cite as 308 Or App 282 (2020) 291
separate business entities” are considered “a single employer
where they comprise an integrated enterprise”); Fallone
v. Misericordia Hosp., 259 NYS 2d 947, 952, 23 AD 2d 222(1965) (treating multiple entities as one under New York
workers’ compensation law). There is nothing unusual about
the court’s finding that Vigor Fab, Vigor Marine, and Vigor
Industrial were one entity under the LHWCA. Plaintiff’s
corporate veil argument misses the mark and we reject it.
We now turn to plaintiff’s argument that his affida-
vit, submitted in opposition to Vigor Fab’s motion, raised a
genuine issue of material fact as to whether Vigor Fab and
Vigor Marine are a single entity. Notwithstanding defen-
dant’s argument to the contrary, Vigor Fab bears the burden
of persuasion on its affirmative defense, Nelson v. Hughes,
290 Or 653, 664-65, 625 P2d 643 (1981), and there is no
burden shifting under ORCP 47 C. Our task is to review the
summary judgment record to determine whether it could
reasonably support more than one material factual finding
as to Vigor Fab’s status as an employer entitled to the ben-
efit of the exclusive remedy provision under the LHWCA.
ORCP 47 C.
It is not sufficient for plaintiff to declare that he
is unaware of the veracity of defendant’s evidence. Under
ORCP 47 D,
“[w]hen a motion for summary judgment is made and sup-
ported as provided in this rule, an adverse party may not
rest on the mere allegations or denials of that party’s plead-
ing; rather, the adverse party’s response, by affidavits, dec-
larations, or as otherwise provided in this section, must set
forth specific facts showing that there is a genuine issue as
to any material fact for trial.”
An affidavit or declaration in opposition to a summary judg-
ment motion must be made on “personal knowledge, must
set forth such facts as would be admissible in evidence,
and must show affirmatively that the affiant or declarant
is competent to testify to the matters stated therein.” Id.The “personal knowledge” requirement is satisfied “if, from
the content of the affidavit read as a whole, an objectively
reasonable person would understand that statements in the
affidavit are made from the affiant’s personal knowledge
292 Sanders v. Vigor Fab, LLC
and are otherwise within the affiant’s competence.” West v.
Allied Signal, Inc., 200 Or App 182, 190, 113 P3d 983 (2005).
With those standards in mind, and in reviewing
the evidence in the light most favorable to plaintiff, we con-
clude that the trial court did not err in granting defendant’s
motion for summary judgment. Vigor Fab and Vigor Marine
were functionally integrated and thus a single entity for
purposes of the LHWCA exclusivity provision. Like the com-
panies in Price and Claudio, Vigor Fab and Vigor Marine
worked together under common management, leader-
ship, and ownership. Both entities were covered by Vigor
Industrial under the same workers’ compensation insurance
policy. That Vigor Fab’s operations do not overlap in pre-
cisely every detail with those of Vigor Marine does not raise
a triable issue of fact on the single entity question because,
as we explain, the record establishes that their labor prac-
tices are, in fact, functionally integrated. See Price, 262
F Supp 3d at 295.
An analysis of the summary judgment record
using the four factors articulated in Claudio confirms that
Vigor Fab and Vigor Marine are functionally integrated for
LHWCA purposes.3 First, Vigor Fab and Vigor Marine pos-
sessed interrelated operations. They engaged in shipbuild-
ing and ship repair on the same Swan Island property, and,
as was the case here, they would occasionally have employ-
ees of one company complete jobs for the other company. It is
true that Vigor Fab manufactures vessels and Vigor Marine
repairs them, but that distinction does not raise an issue of
fact given that Vigor Industrial’s website does not differen-
tiate between its subsidiaries, it calculates its profits and
losses across all of its subsidiaries, and Vigor Fab and Vigor
Marine each have the capacity for industrial harbor work on
the same property, at the same address, and, occasionally,
with the same employees.
3
The Ninth Circuit Court of Appeals has not directly applied the Claudio
factors to an LHWCA case, but one court within the Ninth Circuit has done so.
See Davenport v. New Horizon, No C01-0933, 2002 WL 32098289 at *4 (ND Cal,
Dec 18, 2002). And the parties agree that the applicable legal test is the single
entity test that is discussed in Claudio. We are not aware of any other federal
circuit court of appeal adopting or applying a different test or criteria to LHWCA
cases. Accordingly, we apply the single entity test to the facts of this case utiliz-
ing the four factors articulated in Claudio.
Cite as 308 Or App 282 (2020) 293
Plaintiff acknowledges interrelated operations
between Vigor Fab and Vigor Marine as well as overlap in
their leadership structures. However, he argues that the
facts of this case are distinguishable from Claudio and
Price, asserting that outsiders, employees, and regulatory
agencies do not regard Vigor Fab and Vigor Marine as a
single entity, and that even Vigor Fab’s evidence shows that
the companies operate as “distinct businesses.” But the fact
that Vigor Fab and Vigor Marine are distinct legal enti-
ties is not in dispute. The relevant question is whether the
employment practices of Vigor Fab and Vigor Marine are
sufficiently interrelated to support disregarding the sepa-
rate corporate existence of each in favor of viewing them as
a single entity for purposes of the LHWCA. While it is true,
as plaintiff points out, that the Claudio court considered
the perceptions of others when discussing the “interrelated
operations” factor, there is nothing in that opinion that sug-
gests those other views were dispositive. And, in Price, the
court did not mention the views of others when it concluded
that the entities in that case qualified as a single entity for
purposes of the LHWCA. See generally Price, 262 F Supp
3d at 294. The undisputed evidence in the summary judg-
ment record before us establishes that Vigor Fab and Vigor
Marine operations are sufficiently interrelated to meet the
single entity test.
Second, Vigor Fab and Vigor Marine also share
common management and leadership with their parent
company, Vigor Industrial. Ballou’s declaration testimony in
that regard is not put in dispute by plaintiff’s submissions
in opposition to Vigor Fab’s summary judgment motion.
Third, Vigor Industrial retains centralized control
of labor relations among both companies. Neither company
could hire, fire, or otherwise manage its personnel with-
out the assistance of Vigor Industrial’s human resources,
procurement, finance, and information technology depart-
ments. If an employee filed a workers’ compensation claim
against either company, Vigor Industrial’s human resources
department would handle the claim, and its common insur-
ance carrier would pay. Although the two companies retain
nominal corporate independence for a number of purposes,
they are dependent on their parent, Vigor Industrial, for a
294 Sanders v. Vigor Fab, LLC
significant portion of their labor relations—including the
handling of workers’ compensation or tort claims, and for
the right to control and terminate plaintiff’s employment.
Plaintiff’s declaration states that Vigor Fab could
not fire him. But it does not set forth the source of plaintiff’s
knowledge or the basis on which plaintiff offers that testi-
mony. And, even assuming that he has adequate knowledge
to supply that testimony, it is not relevant because plaintiff
does not dispute that Vigor Industrial has the authority to
fire him. Plaintiff also testified that he “had never heard
of an ‘unwritten but understood service sharing agreement’
between Vigor Marine and Vigor Fab”; that, in his experi-
ence, the two companies did not “freely share[ ]” their employ-
ees; and that it was “unusual” for him to work for Vigor Fab.
However, he admitted that he did, in fact, work on a Vigor
Fab project at the time of his injury, and that he had a his-
tory of working on such projects “about once a year.” None of
plaintiff’s statements supply facts based on personal knowl-
edge, under ORCP 47 D, sufficient to overcome the evidence
that Vigor Fab produced concerning the companies’ labor
practices; they do not demonstrate he has the “competence”
under ORCP 47 D to testify as to the relevant employment
practices; and they do not create an issue of material fact on
their own. West, 200 Or App at 190. Rather, Ballou’s decla-
ration states, and plaintiff does not dispute, that Vigor Fab
and Vigor Marine shared employees.
Finally, plaintiff does not dispute that Vigor Fab
and Vigor Marine are owned by the same parent company.
An analysis of the summary judgment record applying
the four Claudio factors therefore demonstrates that Vigor
Fab and Vigor Marine are a single entity for LHWCA pur-
poses. No reasonable jury could find otherwise. Vigor Fab
and Vigor Marine were both plaintiff’s employer under the
single entity test. Having provided coverage for plaintiff’s
on-the-job injury under the LHWCA, plaintiff is barred
from bringing this ELA claim against Vigor Fab. The trial
court did not err.
Affirmed.