Federal Fifth Circuit Affirms Dismissal of Tort Claim of LHWCA Borrowed Servant Employee

Recently the United States Court of Appeals for the Fifth Circuit in New Orleans affirmed the granting of summary judgment in favor of a shipyard and against a Longshoreman who was deemed to be the borrowed servant of the shipyard.

In Skipper v. A&M Dockside Repair, Inc.No. 20-30278 (5th Cir. Sept. 16, 2020) (per curiam), Plaintiff was working on a barge in one of the shipyards belonging to Defendant A&M.  Plaintiff filed a negligence action against A&M, and A&M filed a third party complaint against Helix, Inc., Plaintiff’s direct employer. After A&M and Helix resolved the third-party complaint, both parties filed a joint motion for partial summary judgment. The district court granted the motion on grounds that A&M was Plaintiff’s borrowing employer and was limited to the Longshore and Harbor Workers’ Compensation Act (LHWCA) as his exclusive remedy pursuant to Section 33(i).

Plaintiff appealed to the federal Fifth Circuit on two grounds: (1) the borrowed servant defense was waived; and (2) even if the defense was not waived, there existed a genuine issue of material fact that precluded summary judgment. The Fifth Circuit rejected the waiver argument on the grounds that Plaintiff was on notice of the borrowed servant defense. While A&M did not explicitly plead that particular defense in its answer, both the language contained within A&M’s affirmative defenses (as well as those of Helix) put Plaintiff on notice that such a defense was being asserted.

With respect to the substantive issue of the borrowed servant defense, the Fifth Circuit looked to the nine relevant factors set forth in the Ruiz v. Shell Oil case relevant to whether the borrowed servant defense applies:

  1. Who has control?
  2. Whose work is being performed?
  3. Was there an agreement or understanding between A&M and Helix?
  4. Did Plaintiff acquiesce in the new work situation?
  5. Did Helix terminate its relationship with Plaintiff?
  6. Who furnished the tools and place for performance?
  7. Was the new employment over a considerable length of time?
  8. Who had the right to discharge Plaintiff?
  9. Who had the obligation to pay Plaintiff?

After analyzing all nine factors, the Fifth Circuit affirmed that there was no issue of genuine material fact and that the district court could determine that A&M was the borrowing employer. The Fifth Circuit affirmed that Plaintiff met seven out of the nine factors and concluded that Plaintiff was a borrowing employer.