Abbott v. Senesco Marine, LLC

JOHN ABBOTT

v.SENESCO MARINE, LLC

C.A. No. PC-07-6000

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT

Filed: June 9, 2011

DECISION

STERN, J. Before this Court is an action by Plaintiff, John Abbott (herein, "Plaintiff") alleging that injuries sustained on March 4, 2006 were caused by Defendant's negligence. Defendant Senesco Marine, LLC ("Senesco") moves for Summary Judgment pursuant to Super. R. Civ. P. 56, arguing that it is immune from liability under provisions of the Longshore and Harbor Workers' Compensation Act ("LHWCA") that exempt employers from liability for employees' workplace injuries. 33 U.S.C. §§ 901 et seq. Senesco's Motion for Summary Judgment centers on the theory that Plaintiff was acting as Senesco's "borrowed servant" at the time of the accident; and therefore, pursuant to the LHWCA, the Plaintiff cannot maintain a lawsuit against Senesco.

I.Facts and Travel

This action arises from the Plaintiff's allegations of negligence on the part of Senesco in connection with injuries sustained during the construction of a marine vessel at Senesco's facility in North Kingstown, Rhode Island. At the heart of this matter is Plaintiff's employment status for the purposes of determining the applicability of provisions of the LHWCA to Plaintiff'sclaims. While the Plaintiff worked as a boat builder—specifically an outside machinist—at the Senesco facility, the Plaintiff was hired and employed by a staffing entity out of Alabama, operating as Christian Construction, Inc. ("CC, Inc.").

Senesco and CC, Inc. entered an agreement that became effective on December 1, 2005, whereby Senesco contracted with CC, Inc. "for qualified Sub-Contract on various projects." ("Sub-Contract.") Pursuant to this agreement, CC, Inc. provided temporary employees to Senesco and Senesco agreed to partially reimburse CC, Inc. for the cost of the CC, Inc. employees. (Sub-Contract, Art. 4.) Article 7 of the agreement, outlining control of CC, Inc. employees, specifies that CC, Inc. is responsible for paying its employees' wages and payroll taxes, "retains the right to hire, fire, discipline, and reassign employees," and "retains the right of direction and control over the management of Workers' Compensation claims, claim filing, and related procedures."

In 2005, the Plaintiff was first hired by CC, Inc. as an outside machinist. His first assignment, refitting a ship for the Massachusetts Maritime Academy, lasted less than three months. (John Abbott Deposition, Aug. 31, 2001, at 37:6-10.) When this job concluded, the Plaintiff returned to his home in Maine to await his next assignment from CC, Inc. (Abbott Dep. at 37:18-21.) Approximately six months later, he was sent to the Senesco facility in Rhode Island to help with the construction of a tugboat. (Abbott Dep. at 37:14-23.) In February of 2006, the Plaintiff began working on the project, and in his deposition the Plaintiff testified that he expected to work on the project for about two years. (Abbott Dep. at 37:23; 39:13-16.)

In his Deposition the Plaintiff testified that he worked as part of a three member crew with other CC, Inc. workers under the supervision of William McClinton, another CC, Inc. employee. (Abbott Dep. at 58:5-12; William McClinton Deposition, Apr. 8, 2010, at 27:19-24;28:1-20; 61:15-24; 62:1-4.) The Plaintiff received his work assignments from Mr. McClinton, his supervisor at the Senesco facility. (Abbott Dep. at 48:11-18; McClinton Dep. at 62:1-4.)

On March 4, 2006, the Plaintiff was injured as he helped install the tugboat's stern tube. According to the Plaintiff, he was receiving orders from his CC, Inc. supervisor, Mr. McClinton, at the time of the injury. (Abbott Dep. at 96:11-20.) Senesco contests this assertion and maintains that all work on the project was done under Senesco's direction and control. (Aff. of Jacob A. Stevens, ¶ 12.)

Before this Court is Senesco's Motion for Summary Judgment. Senesco asks this Court to find as a matter of law that the Plaintiff was acting as Senesco's borrowed servant at the time of his accident and the LHWCA, therefore, immunizes Senesco from liability. The Plaintiff opposes the motion arguing that issues of material fact—centering on the matter of who controlled Plaintiff's work at the time of the accident—preclude summary judgment.

II.Standard of Review

On a summary judgment motion, the court must review the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Chavers v. Fleet Bank (RI), N.A., 844 A.2d 666, 669 (R.I. 2004). On such a motion, the court is to determine only whether a factual issue exists. It is not permitted to resolve any such factual issues. The emphasis is on issue finding, not issue determination. Estate of Giuliano v. Giuliano, 949 A.2d 386, 391 (R.I. 2008) (quoting Industrial Nat'l Bank v. Peloso, 121 R.I. 305, 307, 397 A.2d 1312, 1313 (1979)). "Summary judgment is appropriate if it is apparent that no material issues of fact exist and the moving party is entitled to judgment as a matter of law." Chavers, 844 A.2d at 669. A party opposing a motion for summary judgment "'carries the burden of proving by competentevidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.'" Id. at 669-70 (quoting United Lending Corp. v. City of Providence, 827 A.2d 626, 631 (R.I. 2003)).

III.Analysis

The Plaintiff's employment status is critical in this case because it determines Senesco's potential liability to the Plaintiff. "Under the LHWCA an employee retains the right to sue third parties." Gaudet v. Exxon Corp., 562 F.2d 351, 357 (5th Cir. 1977). Although the LHWCA "does not explicitly adopt the borrowed servant doctrine, the word 'employer' in 33 U.S.C. § 905(a) encompasses both general employers and employers who 'borrow' a servant from that general employer." White v. Bethlehem Steel Corp., 222 F.3d 146, 149 (4th Cir. 2000). The primary issue before this Court therefore, is whether the Plaintiff was a borrowed servant, and by extension an employee of Senesco at the time of his accident. If he was, Senesco is immune from suit under the LHWCA.¹ Conversely, if the Plaintiff was not Senesco's borrowed servant, the Plaintiff can pursue his claim against Senesco.

The LHWCA "is a no-fault federal compensation scheme designed to give protection to injured maritime workers while at the same time affording employers some degree of predictability with regard to those recoveries." White, 222 F.3d at 148. To receivecompensation under the LHWCA, an employee must satisfy both a geographical situs and an occupational status test. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 44-47 (1989). At the time of his injury the Plaintiff was building a tugboat at the Senesco facility, and Section 903(a) of the LHWCA applies to any injury occurring "upon the navigable waters of the United States, including any . . . other adjoining area customarily used by an employer in . . . building a vessel." 33 U.S.C. § 903(a). Thus, the situs test is satisfied. Likewise, the status test is satisfied because the LHWCA applies to any employee who is "engaged in marine employment," which is defined to include shipbuilders. 33 U.S.C. § 902(3). It follows that because the situs and status tests are satisfied, this matter falls under the purview of the LHWCA. Furthermore, because determination of borrowed servant status is "best viewed as a question of the extent of coverage under the LHWCA, federal law applies." Gaudet, 562 F.2d at 357.²

When confronted with the issue of a crew member's borrowed servant status in Raymond v. Caribia, the First Circuit had "no difficulty ruling as a matter of law" on the issue. 626 F.2d 203, 205 (1st Cir. 1980). Similarly, the Fifth, Seventh, and Ninth Circuits have held that "the issue of whether a relationship of borrowed servant exist[s] is a matter of law." See Gaudet, 562 F.2d at 357; Ruiz v. Shell Oil Co., 413 F.2d 310, 314 (5th Cir. 1969); Gudgel v. Southern Shippers, Inc., 387 F.2d 723 (7th Cir. 1967); McCollum v. Smith, 339 F.2d 348 (9th Cir. 1967). "'[I]f sufficient basic factual ingredients are undisputed, the court may grant summary judgment'" on the issue of whether an employee is a borrowed servant. Guillory, 849 F. Supp. 2d at 270 (quoting Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617 (5th Cir. 1986)).However, in some cases factual disputes must be resolved before a court can make its determination. Owen v. Chevron, 8 F.3d 20, 1993 WL 455547 at *2 (5th Cir. 1993). The Fifth Circuit explained in Gaudet that the party contesting borrowed servant status "must show that genuine disputes exist over enough determinative factual ingredients to make a difference in [the] result." 562 F.2d at 358. If the non-moving party carries its burden and shows that genuine issues of material fact exist, summary judgment is not appropriate.

In the seminal case Standard Oil Company v. Anderson, the United States Supreme Court explained the borrowed servant doctrine as follows: "[o]ne may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that he becomes the servant of that person, with all the legal consequences of the new relation." 212 U.S. 215, 220 (1909). To determine who has the power to control and direct the workers, the Court "must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking." Id. at 222.

Following the Standard Oil decision, Circuit Courts of Appeal developed varying tests to determine borrowed servant status under the LHWCA. Although the First Circuit has not adopted a specific test, in Raymond the court explained that the "prime requisite for invoking the...