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Fornah v. Tetra Applied Technologies, LLC

United States District Court, E.D. Louisiana

October 23, 2017

JOHN FORNAH
v.
TETRA APPLIED TECHNOLOGIES, LLC, ET AL.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE

         Before the Court is Schlumberger Technology Corporation's motion for summary judgment. For the reasons that follow, the motion is GRANTED.

         Background

         This personal injury case arises from an offshore accident during a coiled tubing operation decommissioning a well on a plug and abandon project in which the plaintiff alleges he was injured as a result of being the only rigger assigned to guide various hydraulic hoses, which were metal reinforced, filled with heavy viscous fluids, and suspended overhead by crane.

         In 2015, as part of plugging and abandonment efforts, Chevron Corporation hired Schlumberger Technology Corporation to perform coiled tubing wellbore cleanout in the Bay Marchand Field. Chevron U.S.A. Inc. owned a fixed platform there on the outer continental shelf in the Gulf of Mexico, approximately five miles off the coast of Louisiana. The Chevron-Schlumberger contract provides that Schlumberger is an independent contractor:

The Work provided by [Schlumberger] [is] as an independent contractor, and [Schlumberger] and the members of Contractor Group are not employees, agents or representatives of [Chevron] or Company Group. [Schlumberger] has complete control, supervision and direction over its equipment and personnel, and over the manner and method of performance of the Work. Any instructions or directions of any kind given by [Chevron] do not relieve [Schlumberger] of its duties and obligations as an independent contractor.

         Tetra Applied Technologies, LLC provided a crew for plugging and abandoning services. Pursuant to Tetra's Master Services Contract with Chevron, Tetra was also an independent contractor of Chevron:

The Services are provided by [Tetra] as an independent contractor, and [Tetra] and the members of the Contractor Group are not employees, agents or representatives of [Chevron] or Company Group. [Tetra] has complete control, supervision and direction over its equipment and personnel, and over the manner and method of performance of the Services.

         Another Chevron independent contractor, Alliance Offshore, L.L.C., owned and operated a liftboat adjacent to the platform, M/V MISS LYNNE, and operated the crane being used to lift and move the hoses in Schlumberger's coiled-tubing job as part of Chevron's plug and abandonment effort.[1] The plug and abandonment work for Chevron was conducted 24 hours each day, with a day and night shift. Schlumberger provided a six person crew, consisting of a supervisor and two assistances for each 12 hour shift. According to Schlumberger, this crew size was standard for the type of work and equipment it provided.

         John Fornah worked for Tetra as a rigger. He had received training in rigging. As a rigger, his job duties included handling hoses. He took direction from his Tetra supervisor, Michael Bergeron, in performing his duties, which included handling hoses. According to Schlumberger General Field Specialist Chadwick Bernard, who was the overall supervisor onsite for Schlumberger's portion of the Chevron work, as was customary, the liftboat and Tetra crew assisted with overall operations provided to Chevron, but no Schlumberger employee directed or supervised the activities of the Tetra crew.[2]

         Mr. Fornah claims that on September 15, 2015, he injured his neck, back, and shoulder after being instructed by his Tetra supervisor to guide a tubing hose during a crane lift. He attempted to perform this task by himself because other Tetra co-workers were busy and he did not see anyone available to help him. More specifically, according to Fornah, prior to beginning the September 15, 2015 night shift, during a safety meeting, Tetra supervisor Bergeron instructed him to handle the hoses. Fornah was positioned on the deck of the platform. At least three Tetra employees were also on the platform's deck, five to seven feet away, performing various tasks as directed by their Tetra supervisor, who came and went on the platform. No Schlumberger supervisor or employees were on the platform in Fornah's vicinity. The Alliance-operated crane, located on an adjacent liftboat, lifted Schlumberger's coiled tubing injector head into position. Fornah said that, acting alone, he jerked an attached hose to get it untangled from scaffolding and felt a pain in his back and shoulder.

         Fornah continued to work, and worked two additional hitches. Two days after that September 15 incident, he reported that he was injured. During the Chevron work, no one reported to Schlumberger any incident or injury to a Tetra employee. On September 1, 2016, Fornah sued Tetra Applied Technologies, LLC, Alliance Offshore, L.L.C., the M/V CHARLESTON (f/k/a M/V MISS LYNNE), Schlumberger Technology Corporation, [3] and Chevron U.S.A. Inc. Fornah seeks to recover maintenance and cure under general maritime law and also alleges Jones Act negligence on the part of his employer, Tetra; he also alleges unseaworthiness of the vessel, as well as negligence claims under general maritime law against Alliance (for failing to stop an unsafe lift operation), Schlumberger (for failing to provide a full coiled tubing crew and for negligent supervision), and Chevron.[4] Schlumberger now moves for summary judgment dismissing the plaintiff's claims.

         I.

         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). "[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted). Ultimately, "[i]f the evidence is merely colorable . . . or is not significantly probative, " summary judgment is appropriate. Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must "resolve factual controversies in favor of the nonmoving party, " it must do so "only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation marks and citation omitted).

         II.

         A. OCSLA Choice of Law

         Fornah's alleged injuries occurred on a fixed platform in federal waters on the Outer Continental Shelf. It is undisputed that federal jurisdiction is predicated on the Outer Continental Shelf Lands Act (OSCLA), 43 U.S.C. § 1331 et seq.[5] Once OCSLA jurisdiction is established, as it is here, the Court turns to the statute's choice of law provision to determine the law applicable to particular claims.

         OCSLA calls for federal law to apply to all claims arising out of oil and gas production activities on the Outer Continental Shelf. 43 U.S.C. § 1333. OCSLA federalizes the law of the adjacent state when it is “applicable and not inconsistent with...other federal laws and regulations.” Id. This means that state law, as borrowed federal law, will be applied only when already extant federal law leaves a void or gap in coverage:

State law is called on as applicable where it is necessary to fill federal voids and where state law supplemented gaps in the federal law. Where there is a federal law or procedural practice which adequately cope(s) with the full range of potential legal problems the state law-here prescription-is not applicable, for the deliberate choice of federal law, federally administered, requires that applicable be read in terms of necessity-necessity to fill a significant void or gap.

Huson v. Chevron Oil Co., 430 F.2d 27, 31 (5th Cir. 1970)(internal citations and quotations omitted), aff'd, 404 U.S. 97 (1971). Simply put, “OCSLA extends federal law to the Outer Continental Shelf and borrows adjacent state law as a gap-filler.” Texaco Exploration & Prod., Inc. v. AmClyde Engineered Prods. Co., Inc., 448 F.3d 760, 772, amended on reh'g on different grounds, 453 F.3d 652 (5th Cir. 2006). The OCSLA choice of law provision states:

(1) The...laws...of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all...devices permanently or temporarily attached to the seabed...[for the purpose of resource exploitation]...to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State....
(2)(A) To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations...the civil and criminal laws of each adjacent State...are hereby declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structured erected thereon, which would be within the area of ...

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