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Davis v. Forterra Pipe and Precast, LLC

United States District Court, E.D. Louisiana

November 5, 2018

LERNER DAVIS, individually and on behalf of her deceased son, Lester Cook

         SECTION “R” (2)



         Before the Court is defendant's motion for summary judgment.[1]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.

         I. BACKGROUND

         This case arises out of a fatal workplace accident.[2] 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.[3] Cook was assigned to work at the Forterra plant by Lofton Staffing Services, a temporary staffing agency.[4] Lofton commonly selected and assigned temporary employees like Cook to work at the Forterra plant.[5]

         On February 2, 2017, Cook was assigned to the box cutting station at the Forterra plant.[6] Cook left the box cutting station to go to the pipe machine area.[7] While in the pipe machine area, Cook climbed up onto a piece of machinery known as a “pipe jacket.”[8] No one instructed Cook to climb onto the pipe jacket.[9] Cook then “fell into an opening in the . . . pipe machine, ” and suffered severe injuries as a result.[10] He died from his injuries on February 16, 2017.[11] Plaintiff Lerner Davis is Cook's mother.[12]

         On May 18, 2017, plaintiff filed suit in state court asserting claims for wrongful death, survival, and loss of consortium.[13] On June 29, 2017, Forterra removed this action on the basis of diversity of citizenship.[14]

         Forterra now moves for summary judgment, arguing that plaintiff's claims are barred by the exclusivity provisions of the Louisiana Workers' Compensation Act (LWCA).[15]


         Summary 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).

         If the 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.

         If the 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)).


         Under 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).

         Louisiana 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 the employee?
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 . . .”).

         The Court will now consider each of the ten factors.

         1. Who has the right of control over the employee beyond mere suggestion of details or cooperation?

         Determination 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 786.

         It is undisputed that Forterra, and not Lofton, supervised and controlled Cook's day-to-day work.[16] 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.[17]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.[18] No Lofton employees were routinely at the Forterra plant for the purposes of monitoring, supervising, or training the workers.[19] 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.[20] 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”).

         Plaintiff 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.[21] 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).

         2. Whose Work is ...

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