United States District Court, E.D. Louisiana
LERNER DAVIS, individually and on behalf of her deceased son, Lester Cook
FORTERRA PIPE AND PRECAST, LLC
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
the Court is defendant's motion for summary
judgment.Because the Court finds that Lester Cook
was a borrowed employee of defendant, plaintiff's
complaint is barred by the exclusivity provisions of the
Louisiana Workers' Compensation Act. The Court therefore
grants defendant's motion.
case arises out of a fatal workplace accident. On January 19,
2016, Lester Cook began working as a temporary employee for
defendant Forterra Pipe and Precast, LLC, at Forterra's
plant in New Orleans, Louisiana. Cook was assigned to work at
the Forterra plant by Lofton Staffing Services, a temporary
staffing agency. Lofton commonly selected and assigned
temporary employees like Cook to work at the Forterra
February 2, 2017, Cook was assigned to the box cutting
station at the Forterra plant. Cook left the box cutting station
to go to the pipe machine area. While in the pipe machine area,
Cook climbed up onto a piece of machinery known as a
“pipe jacket.” No one instructed Cook to climb onto
the pipe jacket. Cook then “fell into an opening in
the . . . pipe machine, ” and suffered severe injuries
as a result. He died from his injuries on February
16, 2017. Plaintiff Lerner Davis is Cook's
18, 2017, plaintiff filed suit in state court asserting
claims for wrongful death, survival, and loss of
consortium. On June 29, 2017, Forterra removed this
action on the basis of diversity of
now moves for summary judgment, arguing that plaintiff's
claims are barred by the exclusivity provisions of the
Louisiana Workers' Compensation Act (LWCA).
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); see also 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 refrain[s] from making credibility determinations
or weighing the evidence.” Delta & Pine Land
Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395,
398-99 (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); see also Little, 37
F.3d at 1075. “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 nonmoving party.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
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 which 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, 1264-65 (5th Cir. 1991) (internal
citation omitted). The nonmoving party can then defeat the
motion by either countering with evidence sufficient to
demonstrate the existence of a genuine dispute of material
fact, or by “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.
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 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 trial. See, e.g., id.;
Little, 37 F.3d at 1075 (“Rule 56
mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” (quoting Celotex, 477 U.S. at 322)).
the LWCA, an employee injured in an accident while in the
scope and course of his employment is limited to the recovery
of workers' compensation benefits as his exclusive remedy
against his employer. See La. R.S. §
23:1032(A). A so-called “borrowed employee” or
“borrowed servant” is also limited to
workers' compensation benefits. See Melancon v. Amoco
Prod. Co., 834 F.2d 1238, 1243 (5th Cir. 1988).
Plaintiff therefore cannot bring her state law claims if Cook
was Forterra's “borrowed employee.”
“Under the borrowed employee doctrine, an employee of
one company may become the servant of another if he is
transferred by the former to the employ of the latter.”
Stephens v. Witco Corp., 198 F.3d 539, 542 (5th Cir.
1999). Whether a plaintiff is a borrowed employee for
workers' compensation purposes is “a legal issue
for the court to decide.” Sanchez v. Harbor Constr.
Co., Inc., 968 So.2d 783, 786 (La.App. 4 Cir. 2007).
courts and the Fifth Circuit have fashioned a ten-factor test
to determine this question. U.S. Fire Ins. Co. v.
Miller, 381 F.3d 385, 388 (5th Cir. 2004);
Melancon, 834 F.2d at 1244. These factors are:
1) Who has the right of control over the employee beyond mere
suggestion of details or cooperation?
2) Whose work is being performed?
3) Was there an agreement, understanding, or meeting of the
minds between the original and the borrowing employer?
4) Did the employee acquiesce in the new work situation?
5) Did the original employer terminate his relationship with
6) Who furnished the tools and the place of performance?
7) Was the new employment over a considerable length of time?
8) Who had the right to discharge the employee?
9) Who had the obligation to pay the employee?
10) Who selects the employees?
Miller, 381 F.3d at 388. The Fifth Circuit has at
various times emphasized nearly all of the factors.
Compare Id. at 385 (noting that the Fifth Circuit
“has historically considered the fifth, eighth, ninth,
and tenth factors to be the most essential”), with
Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 376
(5th Cir. 1985) (emphasizing the first, fourth, fifth, sixth,
and seventh factors). It is nonetheless clear that courts in
this circuit have consistently placed the most emphasis on
whether the alleged borrowing employer had a right to control
the employee. See, e.g., Capps v. N.L. Baroid-NL
Indus., Inc., 784 F.2d 615, 617 (5th Cir. 1986)
(“[C]ourts place the most emphasis on the first factor,
control over the employee.”); Ruiz v. Shell Oil
Co., 413 F.2d 310, 312 (5th Cir. 1969) (“The
factor of control is perhaps the most universally accepted
standard for establishing an employer-employee relationship .
Court will now consider each of the ten factors.
Who has the right of control over the employee beyond mere
suggestion of details or cooperation?
of the control factor requires the Court to distinguish
“between authoritative direction and control, and mere
suggestion as to details.” Ruiz, 413 F.2d at
313. Critical to this factor is a determination of which
party “directly supervises the employee while the work
is being performed.” Sanchez, 968 So.2d at
undisputed that Forterra, and not Lofton, supervised and
controlled Cook's day-to-day work. Lofton's
corporate representative, Gene Lemoine, testified that once
Lofton placed an employee with Forterra, Forterra solely
controlled how and when the employee performed his
work.Michael McCulloch, the Production
Supervisor at the Forterra plant, and Timothy Jones, the
Director of Operations for the plant, both state in
affidavits that Forterra provided training, supervision, and
direction to all temporary employees that Lofton
provided. No Lofton employees were routinely at
the Forterra plant for the purposes of monitoring,
supervising, or training the workers. McCulloch and
Jones also state that Forterra solely controlled the sections
of the facility where work would be performed, and identified
the jobs Lofton's employees would perform. This type of
work arrangement indicates Cook was a borrowed employee.
See Hotard v. Devon Energy Prod. Co. L.P., 308
Fed.Appx. 739, 742 (5th Cir. 2009) (control over employee is
present when employee reports only to an officer of the
borrowing employer on the jobsite); Miller, 381 F.3d
at 388-89 (finding that a borrowing employer exercised
control over an employee when the only individuals who could
be considered the employee's day-to-day supervisors were
officers of the borrowing employer); Melancon, 834
F.2d at 1245 (finding control over an employee when only the
borrowing employer “told him what work to do and when
and where to do it”).
argues that Forterra never exerted authoritative control over
Cook because Cook was still bound to adhere to certain
policies promulgated by Lofton, such as Lofton's
antidiscrimination, harassment, retaliation, and safety
guidelines. But plaintiff's evidence is not
probative of the question of control. The relevant inquiry is
instead who supervised Cook's activities at the jobsite,
and the undisputed evidence establishes that it was Forterra
who provided this day-to-day supervision. The first factor
therefore supports a finding that Cook had the status of a
borrowed employee. Cf. Tanner v. Bunge Corp., No.
03-3243, 2004 WL 2297469, at *3 (E.D. La. Oct. 12, 2004)
(finding that the supposed borrowing employer did not
exercise control when officers of the lending employer were
present at the jobsite supervising the employee's work).
Whose Work is ...