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Skipper v. A&M Dockside Repair, Inc.

United States District Court, E.D. Louisiana

January 2, 2020


         SECTION “R” (4)



         Before the Court is A&M Dockside Repair, Inc.'s and Helix Resources, LLC's joint motion for partial summary judgment.[1] Because A&M was Skipper's borrowing employer for the purposes of the LHWCA, the Court grants the motion.

         I. BACKGROUND

         This case arises out of a workplace accident. At the time of the accident, plaintiff Walter Skipper was employed by third-party defendant Helix Resources, LLC, as a painter and blaster.[2] On August 11, 2017, plaintiff was working on a barge in a shipyard that is owned and operated by defendant A&M Dockside Repair, Inc.[3] In the course of performing his duties, plaintiff allegedly fell into an open manhole cover on the barge and suffered severe injuries.[4]

         On June 22, 2018, Skipper filed a complaint alleging negligence against A&M and Cashman Equipment Corporation, a party that owned the barge and has since been dismissed from the case.[5] On January 17, 2019, the Court granted A&M's motion for leave to file a third-party complaint against Helix.[6] A&M and Helix have now filed a joint motion for partial summary judgment on the basis that Skipper was a borrowed servant of Helix, that A&M was acting as Skipper's borrowing employer, and that therefore compensation and medical payments are Skipper's sole remedy under the Longshore & Harbor Workers' Compensation Act.[7]


         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) (en banc) (per curiam). “When assessing whether a dispute to any material fact exists, [the Court] consider[s] 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) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); 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) (quoting Golden Rule Ins. Co. v. Lease, 755 F.Supp. 948, 951 (D. Colo. 1991)). “[T]he nonmoving party can 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 resolution. 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 (emphasis added))).


         A&M and Helix argue for partial summary judgment under the Longshore & Harbor Workers' Compensation Act. The LHWCA limits the remedy of a longshoreman or harbor worker against his employer to compensation and medical benefits. See 33 U.S.C. § 933(i) (“The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured . . . by the negligence or wrong doing of any other person . . . in the same employ.”). It is undisputed that Skipper is a longshoreman or harbor worker and is thus covered by the LHWCA. A&M and Helix argue that Skipper was the “borrowed servant” of Helix, that A&M was borrowing plaintiff, and therefore Skipper's remedies are limited by the LHWCA. See Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977) (analyzing the borrowed servant defense in the context of the LHWCA).

         Skipper opposes the motion for partial summary judgment on two grounds. First, Skipper argues that the borrowed servant defense has been waived, because it was not properly asserted in A&M's answer. Second, Skipper argues that genuine issues of fact remain that preclude a grant of summary judgment. The Court addresses each argument in turn.

         A. Waiver

         Skipper argues that defendants' motion for partial summary judgment must be denied because both A&M and Helix failed to raise it as an affirmative defense in their answers. Affirmative defenses are pleadings governed by Rule 8 of the Federal Rules of Civil Procedure. A defendant is required to “state in short and plain terms its defenses to each claim asserted against it” and “affirmatively state any avoidance or affirmative defense.” Fed.R.Civ.P. 8(b)(1)(A), 8(c)(1). In Woodfield v. Bowman, 193 F.3d 354 (5th Cir. 1999), the Fifth Circuit held that affirmative defenses are subject to the same pleading requirements as a complaint and articulated a “fair notice” standard for pleading affirmative defenses. Id. at 362. Under this standard, a defendant is required to plead an affirmative defense “with enough specificity or factual particularity to give the plaintiff ‘fair notice' of the defense that is being advanced.” Id. (citation omitted). Failure to adequately plead an affirmative defense can result in a waiver of the defense. Rogers v. McDorman, 521 F.3d 385 (5th Cir. 2008).

         But failure to strictly comply with Rule 8(c) does not always result in waiver. The purpose of the rule “is to give the opposing party notice of the affirmative defense and a chance to argue why it should not apply.” Pasco v. Knoblauch, 566 F.3d 572, 578 (5th Cir. 2009) (citation omitted). Therefore, “an affirmative defense is not waived if the defendant ‘raised the issue at a pragmatically sufficient time and [plaintiff] was not prejudiced in its ability to respond.'” Id. at 577 (quoting Allied Chem Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983)). The Court does “not take a formalistic approach to determine whether an affirmative defense was waived.” Id. Rather, it “look[s] at the overall context of the litigation” to determine whether “evidence of prejudice exists and sufficient time to respond to the defense remains before trial.” Id. Indeed, the Fifth Circuit has “repeatedly rejected waiver arguments when a defendant raised an affirmative defense for the first time at summary judgment-or even later.” Motion Med. Tech., LLC v. Thermotek, Inc., 875 F.3d 765, 772 (5th Cir. 2017).

         It is therefore necessary to determine whether defendants raised the defense “at a sufficiently pragmatic time, ” and whether plaintiff was prejudiced in his ability to respond. Motion Med. Tech., 875 F.3d at 771. Here, Skipper first had reasonable notice the borrowed servant defense may be asserted months ago, when Helix appeared in the suit. Indeed, in its answer to A&M's third-party complaint, which is part of the record of this case, Helix asserts that “Mr. Skipper was on a mission for his employer and performing employment-related activities”[8] and that because Helix was Skipper's employer, Skipper has “no right to seek tort remedies from Helix, nor any other party to attempt to pass through alleged fault to Helix.”[9] Helix also alleged that Skipper's “sole remedy against it is for compensation under the Louisiana Worker's Compensation Act or, alternatively, under the Longshoremen's and Harbor Workers' Compensation Act.”[10] Although Helix does not incant the words “borrowed servant defense” these allegations offer reasonable notice to Skipper that the defense would be asserted in this case. Given that Helix's answer was submitted in February, plaintiff had reasonable notice, and the defense was raised in a sufficiently pragmatic time.

         Skipper is not prejudiced by the Court's consideration of the borrowed servant defense at this juncture. Plaintiff provides fulsome, reasoned responses to defendants' arguments in his opposition.[11] Skipper even cites to various exhibits, including deposition testimony, in his response.[12] And although plaintiff asserts that there still exist genuine issues of fact, he argues these are issues the trier of fact must decide-not that additional discovery is required to resolve the issues. Indeed, Skipper does not request additional time for discovery or suggest that additional discovery would cure any prejudice he may face.

         Because Skipper had adequate notice that the borrowed servant defense would be asserted and is not prejudiced in responding to the defendants' motion for partial summary judgment, the Court finds that defendants did not waive the borrowed servant defense.

         B. Genuine Issues of Fact

         Skipper also avers that the motion for partial summary judgment must be denied because issues of material fact still exist with respect to whether A&M was acting as Skipper's borrowing employer. The Fifth Circuit has held that “in absence of substantial evidence to the contrary . . . the issue of whether a relationship of borrowed servant exist[s] is a matter of law.” Ruiz v. Shell Oil Co., 413 F.2d 310, 341 (5th Cir. 1969). Here, the relevant facts are not in dispute. Rather, plaintiff disputes the legal conclusion that should be drawn from the facts. This is a question of law for the Court.

         Courts have developed a nine factor test to determine whether borrowed servant status exists. The nine factors are:

(1) Who has control over the employee and the work he is performing, 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 ...

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