Raicevic v. Fieldwood Energy, L.L.C.

979 F.3d 1027

Milorad RAICEVIC, Plaintiff—Appellant,

v.FIELDWOOD ENERGY, L.L.C.; Shamrock Management, L.L.C., doing business as Shamrock Energy Solutions, Defendants—Appellees.

No. 19-40580

United States Court of Appeals, Fifth Circuit.

FILED October 28, 2020

Decided November 10, 2020

William Joseph Boyce, Kevin Hampton Dubose, Alexander Dubose & Jefferson, L.L.P., John Denis Sheppard, Morrow & Sheppard, L.L.P., Houston, TX, for Plaintiff - Appellant.

Russell Hollenbeck, Michael Hurta, Attorney, Natasha Taylor, Wright, Close & Barger, L.L.P., Randy G. Donato, Donato, Minx, Brown & Pool, P.C., Houston, TX, James Denman Bercaw, King & Jurgens, L.L.C., New Orleans, LA, for Defendant - Appellee Fieldwood Energy, L.L.C.

Branch Masterson Sheppard, Galloway, Johnson, Tompkins, Burr & Smith, Houston, TX, for Defendant - Appellee Shamrock Management, L.L.C.

Before Smith, Willett, and Duncan, Circuit Judges.

Per Curiam:

After injuring his back while working on Fieldwood Energy's offshore platform, Milorad Raicevic sued Fieldwood (and the platform operators) for negligence. The jury found that Fieldwood was the only defendant that was negligent, attributing 50% of the responsibility to the company. The jury attributed the other 50% to Raicevic. After trial, and before entering judgment, the district court requested further briefing on Fieldwood's defense under the exclusive-remedy provision of the Longshore and Harbor Workers' Compensation Act. The district court entered judgment for Defendants (including Fieldwood) because it found that Raicevic was Fieldwood's borrowed employee, and thus the LHWCA's exclusive-remedy provision gave Fieldwood tort immunity. Because we agree that the LHWCA was Raicevic's exclusive remedy, we affirm.

I

Waukesha Pearce Industries, Inc. (not a defendant in this case) employed Raicevic as an offshore platform mechanic beginning in 2008. While still employed by Waukesha Pearce, Raicevic worked on Fieldwood's offshore platform located on the outer continental shelf in the Gulf of Mexico. Almost a year into working (and sleeping) on Fieldwood's platform, Raicevic awoke after midnight to an alarm blaring in the mechanic's room. Raicevic slipped and fell twice, due to oil that had leaked on the floor, while trying to address the mechanical issue that triggered the alarm.

Raicevic suffered back injuries that necessitated various treatments, including surgery, physical therapy, and steroid injections. Raicevic received coverage for these treatments through Waukesha Pearce's workers' compensation benefits, but it is unclear whether the benefits came from state plans or the LHWCA.

Raicevic sued Fieldwood and the platform operators for negligence. Fieldwood countered that Raicevic was its borrowed employee, so various workers' compensation schemes, including the LHWCA, precluded Raicevic's tort claim. Raicivec filed a motion in limine to bar any discussion of workers' compensation insurance at trial, and the district court granted the motion.

At trial, the jury found that Fieldwood and Raicevic were each 50% responsible for Raicevic's injuries. The jury also made special findings about the factors that a court weighs to decide borrowed employee status. But because of the motion in limine, the jury made no findings about any other issues related to Fieldwood's LHWCA defense.

After trial, but before entering judgment, the district court requested further briefing on Fieldwood's LHWCA defense. The post-trial briefing focused on two necessary conditions for the LHWCA to apply and thus bar Raicevic's negligence claim: (1) Was Raicevic Fieldwood's borrowed employee? and (2) Did Fieldwood secure workers' compensation benefits under the LHWCA? Considering the jury's findings on the factors of borrowed-employee status and the post-trial briefing, the district court concluded that both conditions were met. Accordingly, the court rendered judgment for all defendants because the LHWCA gave Fieldwood tort immunity, and the jury found that the other defendants were not negligent. Raicevic now appeals, challenging the district court's two findings on the LHWCA defense.

II

After a trial, we review questions of law de novo, "while questions of fact are reviewed for clear error."

Anne Harding v. Cty. of Dallas , 948 F.3d 302, 306–07 (5th Cir. 2020). So here, we review anew the core legal question: whether Raicevic was Fieldwood's borrowed employee. See Billizon v. Conoco, Inc. , 993 F.2d 104, 105 (5th Cir. 1993). And we review for clear error the key factual finding: that Fieldwood secured benefits under the LHWCA.

III

Under the Outer Continental Shelf Lands Act, an employee's exclusive remedy for a work-related injury is the LHWCA. 43 U.S.C. § 1333(a)(1) and (b) ; 33 U.S.C. § 905(a). This means that, if applicable, the LHWCA would preclude a tort action like Raicevic's. But this exclusivity provision only applies to (1) employers who (2) "secure payment of compensation" under the LHWCA. 33 U.S.C. § 905(a). Raicevic argues that Fieldwood cannot satisfy either requirement.

A

Turning first to the question of Raicevic's employer, Fieldwood must show that Raicevic was its borrowed employee in order to have tort immunity under the LHWCA. Melancon v. Amoco Prod. Co. , 834 F.2d 1238, 1243 (5th Cir.), amended on reh'g in part sub nom. Melancon v. Amoco Prods. Co. , 841 F.2d 572 (5th Cir. 1988). To determine whether an employee is a "borrowed employee," we consider the nine factors articulated in Ruiz v. Shell Oil Company :

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?

9. Who had the obligation to pay the employee?

413 F.2d 310 (5th Cir. 1969) ; see also Melancon , 834 F.2d at 1244.

These nine factual inquiries underlie borrowed-employee status, but the ultimate determination of whether an employee is a borrowed employee is a question of law for the court to decide. Melancon , 834 F.2d at 1244.

The district court submitted these nine questions to the jury. And the parties acknowledge that the jury's findings do not point uniformly in one direction. After considering the jury's findings and the parties' post-trial briefing on the issue, the district court determined that Raicevic was Fieldwood's borrowed employee. Raicevic now challenges that determination; he does not challenge the jury's factual findings.

Determining borrowed-employee status, particularly in the LHWCA context, is a complex question of law. Gaudet v. Exxon Corp. , 562 F.2d 351, 358 (5th Cir. 1977). A court must consider not only the nine factors, "but the implications to be drawn from" them. Id . And "in different cases, [ ] certain of these factors may be more important than others, at least in the light of the facts [ ] before the court." Alday v. Patterson Truck Line, Inc. , 750 F.2d 375, 376 (5th Cir. 1985).

Further, we originally created the nine-factor test in the respondeat-superior context. See Gaudet , 562 F.2d at 356. But in the LHWCA context, the test is not used to impute liability but "to escape it through the exclusive remedy provisions." Id. As we have explained:

Although the coverage of the LHWCA is not contractual and does not depend upon the consent of the parties, nonetheless when an employee begins work for an employer under the coverage of the LHWCA, he is presumed to have consented to the Act's trade-off of possibly large common law damages for smaller but certain LHWCA benefits. And by the very act of continuing in employment, he may be assumed to agree that, considering the likelihood of injury and the likely severity of injury within the working conditions he experiences, the benefits offered by the LHWCA in the event of injury are acceptable.

Id. So in assessing the nine factors, we focus on whether the employee has consented (implicitly or explicitly) to this statutory trade-off.

With that focus in mind, we now briefly review the nine factors. And we conclude that Raicevic was Fieldwood's borrowed employee, although we do so for reasons somewhat different from those given by the district court.¹

We start with the easier factors in this case. The jury's findings as to factors 2, 4, and 6—that Raicevic was performing Fieldwood's work, Raicevic acquiesced in the work situation, and Fieldwood provided the tools and place of work—clearly favor Fieldwood (borrowed-employee status). But the jury's finding as to factor 5—that Waukesha Pearce did not terminate its relationship with Raicevic prior to his injury—favors Raicevic (no borrowed-employee status).

For the remaining factors, there is considerable dispute about the implications we should draw from the jury's findings.

Factor One. The jury found that Fieldwood did not have control over Raicevic's work beyond merely suggesting details. Raicevic argues that the jury's finding should weigh in his favor because Waukesha Pearce, not Fieldwood, told him to work on Fieldwood's platform; no one from Fieldwood told him exactly how to do the repairs; and his direct supervisor was a Waukesha Pearce field service manager. Fieldwood, on the other hand, argues that it told Raicevic what to inspect on the platform, and when and where to conduct those inspections; two Fieldwood employees supervised Raicevic—Raicevic even claimed that one was the "best boss" he ever had; and the Waukesha Pearce supervisor was never on Fieldwood's platform and didn't provide any guidance as to Raicevic's actual work for Fieldwood.

In the LHWCA context, we have previously rejected the arguments Raicevic makes and held that the arguments...