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In re Weeks Marine, Inc.

United States District Court, M.D. Louisiana

January 26, 2015

IN RE: WEEKS MARINE, INC., as owner and operator of the BT 229 for Exoneration From or Limitation of Liability

Page 594

For Weeks Marine, Inc., as owner and operator of the BT 229, for Exoneration From or Limitation of Liability, In the Matter of: Matthew Francis Popp, LEAD ATTORNEY, Waits, Emmett, Popp & Teich, L.L.C., New Orleans, LA; John Francis Emmett, Jordan Nichole Teich, Randolph Jean Waits, Waits, Emmett & Popp, New Orleans, LA; Mark Andrew Hill, Waits, Emmett, and Popp LLC, New Orleans, LA.

For Aerotek, Inc., Claimant: Robert Jeffrey Bridger, LEAD ATTORNEY, Brown Sims, New Orleans, LA.

For Southern Crane & Hydraulics, LLC, Liberty Insurance Underwriters, Inc., Claimants: Francis A. Courtenay, Jr., Deutsch, Kerrigan & Stiles, New Orleans, LA.

Page 595



This matter comes before the Court on the Motion for Summary Judgment on Borrowed Servant Status filed by Claimant-in-Limitation/defendant Aerotek, Inc. (Doc. 8). The Motion is opposed by Petitioner-in-Limitation Weeks Marine, Inc. (Doc. 11). Oral argument is not necessary.

Having carefully considered the law and facts in the record, the Court grants the motion in part and holds that, as a matter of law, Claimant Randall Harrold is the borrowed servant of Petitioner in Limitation Weeks Marine, Inc., and that, consequently, Aerotek, Inc.'s maintenance and cure obligation is terminated. In all other respects, Aerotek, Inc.'s motion is denied.

I. Background and Contentions of the Parties

This is a limitation of liability proceeding brought by Weeks Marine, Inc. (" Weeks" ) as the owner of the barge BT 229. In its complaint (Doc. 1 in No. 3:13-cv-00831), Weeks claims that it is entitled to exoneration from or alternatively, limitation of liability, for personal injury damages alleged to have been suffered by Randall Harold (" Harrold" ) on October 26, 2012 as he was working aboard barge BT 229.

In addition to filing an answer and claim in the limitation action, Harrold filed a separate suit in the Louisiana 19th Judicial District Court for personal injuries under the Jones Act, 46 U.S.C. § 30104 (formerly 46 U.S.C. § 688), and for unseaworthiness. (Doc 8-2). Harrold also claimed entitlement to maintenance and cure. (Id.). Harrold's suit was removed to the Middle District of Louisiana (Doc. 1 in No. 3:13-cv-762) and consolidated with the limitation action. (Doc. 7 in No. 3:13-cv-762). Ultimately, Harrold's suit was deconsolidated from the limitation action and remanded to state court. (Order, Doc. 63 in No. 3:13-cv-762).

On December 7, 2011, Weeks entered into a contract (" Service Contract" ) with Aerotek, Inc. (" Aerotek" ), a staffing service agency. In that contract, Aerotek agreed to provide supplemental staffing of workers for Weeks. (Docs. 8-4 and 11-1). On September 22, 2012, Harrold signed an Employment Agreement with Aerotek in which he agreed to be assigned to work as a crane operator for Weeks beginning on that date. (Docs. 8-7 and 11-2). Harrold worked for Weeks as a crane operator for 17 days between his start date of September 22, 2012, and the time of his accident on October 26, 2012. (Doc. 11-4). Harrold was injured as he was assisting another worker repair the crane on the BT 229.

Page 596

Aerotek asserted a claim in the limitation action seeking reimbursement of worker's compensation and maintenance and cure benefits paid to Harrold,[1] alleging that Weeks was Harrold's borrowing employer. (Doc. 3 in 3:13-cv-00831). In this Motion for Summary Judgment, Aerotek seeks a judicial determination that, at the time of the accident, Harrold was a borrowed servant of Weeks and therefore is entitled to terminate maintenance and cure benefits to Harrold and, in addition, is entitled to recover from Weeks reimbursement of the sums it paid to Harrold as a result of his October 26, 2012 accident. (Doc. 8).

Weeks counters that there are questions of fact regarding both Harrold's status as a borrowed employee as well as the correctness of amounts paid by Aerotek to Harrold for maintenance and cure and/or benefits under the Longshore and Harborworkers Compensation Act., 33 U.S.C. § 901 et seq. (" LHWCA" ). Thus, Weeks contends that Aerotek's Motion for Summary Judgment should be denied.

II. Discussion

A. Summary Judgment Standard

" The court shall grant summary judgment if 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). If the mover bears his burden of showing that there is no genuine issue of fact, " its opponent must do more than simply show that there is some metaphysical doubt as to the material facts ... [T]he nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citations omitted). The non-mover's burden is not satisfied by " conclusory allegations, by unsubstantiated assertions, or by only a 'scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted). " Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co., 475 U.S. at 587. Further:

In resolving the motion, the court may not undertake to evaluate the credibility of the witnesses, weigh the evidence, or resolve factual disputes; so long as the evidence in the record is such that a reasonable jury drawing all inferences in favor of the nonmoving party could arrive at a verdict in that party's favor, the court must deny the motion.

International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

B. Analysis - Borrowed Servant

If Mr. Harrold is the borrowed servant of Weeks, then Weeks will be responsible for paying, depending on Harold's status, LHWCA benefits or maintenance and cure. Hall v. Diamond M. Co., 732 F.2d 1246, 1249 (5th Cir. 1984); Baker v. Raymond International, 656 F.2d 173, 178 (5th Cir. 1981).[2] The question of ...

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