Billizon v. Conoco, Inc. ( 1993 )


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  •                                  United States Court of Appeals,
    Fifth Circuit.
    No. 92-3877
    Summary Calendar.
    Donald BILLIZON, Plaintiff-Appellant,
    and
    Danos & Curole Marine Contractors, Inc. and The Gray Insurance Company, Intervenors-
    Appellants,
    v.
    CONOCO, INC. et al., Defendants-Appellees.
    June 15, 1993.
    Appeals from the United States District Court for the Eastern District of Louisiana.
    Before REAVLEY, DAVIS and DeMOSS, Circuit Judges.
    REAVLEY, Circuit Judge:
    Donald Billizon sued Conoco, Inc. to recover damages for injuries he suffered while working
    on an offshore platform operated by Conoco. At the time of his accident, Billizon was employed by
    Danos & Curole Marine Contractors, Inc. (D & C), which supplies workers to oil and gas producers.
    D & C had assigned Billizon to work for Conoco as a pumper. The district court entered summary
    judgment in favor of Conoco on the ground that Billizon was Conoco's "borrowed
    employee"—granting Conoco tort immunity under the Longshore and Harbor Workers'
    Compensation Act, 33 U.S.C. § 905(a). We affirm.
    To determine borrowed-employee status, we consider nine factors:
    (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?
    Brown v. Union Oil Co. of California, 
    984 F.2d 674
    , 676 (5th Cir.1993). The question of
    borrowed-employee status is a question of law for the district court to determine. But in some cases,
    factual disputes must be resolved before the district court can make its legal determination. See, e.g.,
    
    id. at 679
    (factual issues concerning factors 1 and 3); Melancon v. Amoco Prod. Co., 
    834 F.2d 1238
    ,
    1245 n. 13 (5th Cir.) (factual issue concerning factor 3), reh'g granted on other grounds, 
    841 F.2d 572
    (5th Cir.1988).
    While working for Conoco, Billizon maintained the flow of oil and gas from a production
    platform. John Jackson, a Conoco employee, supervised the platform on which Billizon worked.
    When Billizon arrived on the job, a Conoco employee familiarized him with the work procedures.
    Billizon attended daily tailgate meetings conducted by Jackson to discuss safety and work-related
    issues. Jackson talked to Billizon daily either in person or by telephone. Conoco required Billizon
    to keep a work log, which was reviewed by Jackson. No D & C supervisors were in the field to
    oversee Billizon's work.     Conoco provided the place for performance as well as Billizon's
    transportation, food, and lodging. Billizon worked for Conoco for more than three months. Conoco
    did not have the right to terminate Billizon's employment with D & C, but it had the right to end
    Billizon's association with Conoco. D & C paid Billizon, but his pay was based on time tickets
    verified by Conoco.
    In this case, only the third factor—agreement, understanding, or meeting of the minds
    between the original and the borrowed employer—could possibly support Billizon's contention that
    he was not a borrowed employee. The service contract governing the relationship between Conoco
    and D & C provides that employees of D & C are not employees of Conoco. However, the reality
    of the work site and the actions of Conoco and D & C suggest that the two employers had the
    contrary "understanding or meeting of the minds." Cf. 
    Melancon, 834 F.2d at 1245
    & n. 13. This
    court has held many times that no single factor is determinative. See, e.g., 
    Brown, 984 F.2d at 676
    ;
    see also 
    Melancon, 834 F.2d at 1245
    ("[P]arties to a contract cannot automatically prevent a legal
    status like "borrowed employee' from arising merely by saying in a provision in their contract that it
    cannot arise.").
    The question in this case is whether the existence of a contract provi sion purporting to
    prohibit borrowed-employee status makes the district court's summary judgment inappropriate, given
    that such a contract provision could create a factual dispute on the third factor if the other factors
    were disregarded. Previously faced with this issue, this court has concluded that summary judgment
    is appropriate where the remaining factors clearly point to borrowed employee status. See 
    Brown, 984 F.2d at 678
    n. 5; Alexander v. Chevron, U.S.A., 
    806 F.2d 526
    , 529 (5th Cir.1986) (citing
    Guadet v. Exxon Corp., 
    562 F.2d 351
    , 358 (5th Cir.1977), cert. denied, 
    436 U.S. 913
    , 
    98 S. Ct. 2253
    ,
    
    56 L. Ed. 2d 414
    (1978)). Here, factors 1, 2, 4, 5, 6, 8, and 9 support borrowed employer status.
    Factor 7 is neutral,1 but the neutrality of factor 7 is insufficient to render the district court's summary
    judgment inappropriate.
    Even if we assume that factor 3 weighs in favor of Billizon's position, the summary judgment
    record establishes that Billizon was Conoco's borrowed employee. We affirm the district court's
    summary judgment in favor of Conoco. Compare 
    Brown, 984 F.2d at 677
    , 679 (factual issue existed
    concerning factor 1, who controlled the employee's work).
    AFFIRMED.
    1
    See 
    Brown, 984 F.2d at 679
    (Factor 7 is neutral where the length of employment (one month)
    is not considerable.).