Offshore Drilling Borrowed Employee Not Allowed Tort Claim Against Employer

An offshore drilling worker's tort claim against a drilling company was barred by exclusive remedy provisions of the Longshore Act — applying the "Borrowed Servant" rule. An employee referred to as "Jackson" was hired as a mechanic by Producers Assistance Corporation (PAC), a company supplying workers to businesses, including Total E&P USA, Inc. ("Total"), engaged in offshore drilling.

Jackson was immediately assigned to the company Total E&P USA, Inc., and spent seven months on rotating 14-day hitches. While on the platform, Total provided Jackson with sleeping and bathing facilities in permanent quarters, three meals a day, and a Total uniform bearing his name. Jackson brought bring some of his own tools and some specialized tools were provided. Jackson was the only mechanic onboard. He received assignments through Total's computer system, which automatically created a list of preventative maintenance tasks he was to perform. No Total employee oversaw Jackson's work. Rather, Jackson was directed to use his judgment and experience to determine if the computer printout was accurate and, if accurate, which tasks should be completed during a given shift.

Jackson reported his hours to PAC and was paid by PAC. He sustained injuries while working alongside Total's employees. A cable securing a large pump snapped under stress and struck Jackson in the legs. Jackson sought and received workers compensation benefits under the Longshore Act from PAC and then filed suit in federal district court against Total alleging negligence. The district court granted Total's motion for summary judgment, finding that Jackson was a borrowed employee whose tort claim was barred by the exclusive remedy provisions of the Longshore Act. Jackson appealed.

In Jackson v. Total E&P USA, Inc., 2009 U.S. App. LEXIS 18119 (5^th Cir., August 13, 2009), the Fifth Circuit Court of Appeals agreed with the district court and affirmed. Citing Brown v. Union Oil Co. of Cal., 984 F.2d 674, 676 (5th Cir. 1993), the Fifth Circuit indicated that there were nine factors to be considered: (1) who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation; (2) whose work was 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 tools and place for performance; (7) was the new employment over a considerable length of time? (8) who had the right to discharge the employee; and (9) who had the obligation to pay the employee.

The court stressed not one of these factors was decisive. The central question in borrowed servant cases was whether someone had the power to control and direct another person in the performance of his work, and that under the facts, factors (1), (2), (4), (6), and (7) all supported the district court's finding. The court indicated that here PAC was operating essentially as a placement agency, that it had no control over the work environment and that all work was directed by and for the benefit of Total.

The court indicated that while PAC did not relinquish all control over Jackson, that was not a deciding factor. The court stated while Jackson was on the platform, PAC's control over him was minimal. Considering all the factors present in the case, Jackson was a borrowed employee and his tort action against his borrowing employer was barred by exclusivity. See generally Larson's Workers' Compensation Law, § 67.01, 67.05, 67.06, 100.01, 111.01, 111.04.

Tom Robinson, J.D. is the primary upkeep writer for Larson's Workers' Compensation Law (LexisNexis) and Larson's Workers' Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers' Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers' compensation and we are happy to have him as a Guest Contributor to Workers' Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation