Ladd v. Research Triangle Institute , 335 F. App'x 285 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1449
FRED LADD; LORETTA SUZANNE LADD,
Plaintiffs - Appellants,
v.
RESEARCH TRIANGLE INSTITUTE, a/k/a Research Triangle
Institute International, a North Carolina corporation,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:06−cv−00399−BO)
Argued: May 13, 2009 Decided: July 2, 2009
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: David Lee Kofoed, Sr., THE KOFOED LAW FIRM, LLC,
Centennial, Colorado, for Appellants. Clifton L. Brinson,
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, LLP,
Raleigh, North Carolina, for Appellee. ON BRIEF: Mark A. Ash,
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, LLP,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Research Triangle Institute (“RTI”) contracted to rebuild
municipal water and sewage facilities in Iraq following the 2003
U.S. invasion. RTI obtained Ladd’s services as a civilian
engineer by contract with his direct employer, Chemonics
International, Inc. (“Chemonics”). Ladd was injured in Iraq
while working on a project directed by RTI. He and his wife
(“the Ladds”) subsequently sued RTI. The district court awarded
RTI summary judgment and the Ladds appeal. Because the Ladds’
suit is barred by the Defense Base Act, 42 U.S.C. § 1651 (“the
DBA”), we affirm the judgment of the district court.
I.
RTI contracted with the United States Agency for
International Development (“USAID”) to provide reconstruction
services in Iraq following the 2003 U.S. invasion. RTI
subcontracted with Chemonics to recruit qualified personnel.
Chemonics subsequently recruited and hired Ladd, a civilian
water and sewer engineer.
In October 2003, while traveling from Al Kut, Iraq, to a
meeting in Noumaniya, Ladd was injured when his vehicle’s left
front tire blew, causing the vehicle to plunge into a canal.
Ladd suffered several serious injuries as a result of the
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accident. Despite several surgeries, Ladd requires ongoing
physical, mental, and emotional care.
In October 2005, the Ladds filed a complaint in the United
States District Court for the District of Colorado, where they
lived, alleging that RTI failed to supply vehicles for
operations in Iraq consistent with those promised during
orientation; that Ladd’s driver, allegedly an RTI employee, had
been negligent; and that the vehicle in which Ladd had been
driven was defective or in poor condition. RTI filed an answer
in which it denied the Ladds’ claims and raised an affirmative
defense that the suit was barred under the DBA. RTI also filed
a motion to dismiss or transfer in which it argued that it was
not subject to personal jurisdiction in the District of
Colorado. In September 2006, the District Court for the
District of Colorado granted RTI’s motion and transferred the
case to the Eastern District of North Carolina.
In August 2007, RTI filed a motion for summary judgment
arguing, among other things, that Ladd was receiving workers’
compensation benefits under the DBA, which constituted his
exclusive remedy. The district court awarded RTI summary
judgment, finding that Ladd was a statutory employee of RTI
under the borrowed servant doctrine and holding that his suit
was barred under the DBA. The Ladds filed a timely notice of
appeal and we have jurisdiction under 28 U.S.C. § 1291.
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II.
The Ladds argue that the district court erred in applying
the borrowed servant doctrine to find Ladd was a statutory
employee of RTI under the DBA. 1 2
This Court reviews an award of
summary judgment de novo. E.g., Moore v. Williamsburg Reg'l
Hosp., 560 F.3d 166, 171 (4th Cir. 2009).
The DBA provides that “the provisions of the Longshore and
Harbor Workers’ Compensation Act [33 U.S.C. 901 et seq. (“the
LHWCA”)] shall apply in respect to the injury or death of any
employee engaged in any employment . . . under a contract
1
At oral argument, the Ladds argued that the borrowed
servant doctrine is an affirmative defense which RTI had failed
to plead in its answer and thereby waived. RTI responded that
the borrowed servant doctrine is merely a legal theory under
which the DBA applies to the relationship between Ladd and RTI,
and that RTI had properly pleaded the DBA as an affirmative
defense in its answer. RTI also contended the DBA divests the
district court of subject-matter jurisdiction over the Ladds’
claims and questions relating to subject-matter jurisdiction
cannot be waived.
We do not address this argument because the Ladds did not
argue in the district court or on brief that the borrowed
servant doctrine was an affirmative defense or that RTI had
waived it through a failure to plead. Accordingly, under the
well-settled rule in this Circuit, the issue is waived. E.g.,
United States v. Chase, 466 F.3d 310, 314 n.2 (4th Cir. 2006);
Evans v. Metro. Life Ins. Co., 358 F.3d 307, 311 n.4 (4th Cir.
2004) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999)).
2
The Ladds also appeal from the district court’s denial of
their motion to re-open discovery and designate an expert to
testify about the condition of the vehicle’s tires. Because we
affirm the district court’s determination that the DBA bars the
Ladds’ suit as a matter of law, we do not reach this issue.
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entered into with the United States . . . where such contract is
to be performed outside the continental United States . . . .”
42 U.S.C.A. § 1651(a)(4) (West 2003). In White v. Bethlehem
Steel Corp., 222 F.3d 146 (4th Cir. 2000), we determined that
the borrowed servant doctrine applies under the LHWCA to provide
immunity from suit both to an employee’s general or contract
employer and to other “employers who ‘borrow’ a servant from”
that employer. Id. at 149.
A person can be in the general employ of one company
while at the same time being in the particular employ
of another “with all the legal consequences of the new
relation.” See Standard Oil Co. v. Anderson, 212 U.S.
215, 220 [(1909)]. In order to determine whether an
employee is a borrowed servant, courts “must inquire
whose is the work being performed . . . by
ascertaining who has the power to control and direct
the servants in the performance of their work.” Id.
at 221-22. The Supreme Court noted, however, the
importance of "distinguishing between authoritative
direction and control, and mere suggestion as to
details or the necessary cooperation.” Id. at 222.
The authority of the borrowing employer does not
have to extend to every incident of an employer-
employee relationship; rather, it need only encompass
the servant’s performance of the particular work in
which he is engaged at the time of the accident. See
id. at 220; McCollum v. Smith, 339 F.2d 348, 351 (9th
Cir. 1964). When the borrowing employer possesses
this authoritative direction and control over a
particular act, it in effect becomes the employer. In
that situation, the only remedy of the employee is
through the LHWCA.
. . . .
In order to determine direction and control, a
court may look at factors such as the supervision of
the employee, the ability to unilaterally reject the
services of an employee, the payment of wages and
benefits either directly or by pass-through, or the
duration of employment. Ultimately, any particular
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factor only informs the primary inquiry--whether the
borrowing employer has authoritative direction and
control over a worker.
Id. (emphasis added).
In this case, it is clear that RTI exercised the requisite
“authoritative direction and control” over Ladd. Ladd’s
contract with Chemonics expressly stated that, “[w]hile in Iraq,
[Ladd] will report directly to RTI’s Chief of Party, Peter
Benedict, or any successor appointed by RTI. Mr. Benedict is
responsible for monitoring employee performance under the terms
of the contract.” (J.A. 11.) The contract also provided that
Ladd’s salary was subject to approval by RTI. The relationship
between Ladd and RTI was also explored in Ladd’s deposition,
where he stated that RTI had control over him in Iraq, that RTI
had the power to have him fired, and that RTI could reassign him
to different parts of Iraq.
In response to RTI’s request for admissions, Ladd admitted
that “he was required to report directly to RTI’s Chief of Party
and was to follow the instructions and orders of RTI in the
performance of his work.” (J.A. 249.) Further, Ladd admitted
that on the day of the accident “it was RTI that ordered and
arranged the trip.” Id. Finally, the Ladds admitted RTI’s
control over Ladd in Iraq in their initial complaint, which
stated that “Ladd would report directly to RTI, his salary would
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be dependent upon the approval of RTI, and . . . RTI could amend
the duties to be performed . . . .” (J.A. 2.)
Because the facts clearly show that RTI exercised
“authoritative direction and control” over Ladd in Iraq, the
district court did not err in concluding that Ladd was the
borrowed servant of RTI for the purposes of fulfilling its USAID
contract there. As a borrowed servant, Ladd was a statutory
employee of RTI under the LHWCA and the DBA. Accordingly, the
Ladds’ suit is barred by the DBA as a matter of law and we
affirm the judgment of the district court.
AFFIRMED
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