19 F.4th 720
5th Cir.2021Background
- Shell hired BP to manage an OCS fixed-platform expansion; BP delegated day-to-day management to Grand Isle, which subcontracted Brand Energy to build scaffolding; Coleman worked for Brand.
- BP and Grand Isle imposed safety rules, used on-site safety supervisors, issued safety equipment, and retained stop-work authority; Brand performed Job Safety Environmental Assessments (JSEAs) and retained discretion to decide when to work.
- High winds delayed work for five days; BP informed Brand winds had subsided (~22 knots); Brand decided to proceed, transported workers to the platform, and Coleman was injured carrying an eight-foot scaffolding board when a gust caused a back injury.
- Coleman sued BP and Grand Isle for negligence; defendants moved for summary judgment arguing Brand was an independent contractor and there was no evidence of defendants’ vicarious or direct negligence; the district court granted summary judgment and Coleman appealed.
- The Fifth Circuit applied Louisiana law as surrogate federal law for OCS matters and reviewed the summary-judgment ruling de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Independent-contractor status (Hickman factors) | Brand was effectively an employee because defendants controlled tools, supervision, and safety practices | Contracts, Brand's autonomy over methods/timing, and Hickman factors show Brand was an independent contractor | Brand was an independent contractor as to BP and Grand Isle (Grand Isle's tool control insufficient to create employment) |
| Operational-control exception | BP/Grand Isle retained/exercised operational control via safety rules, on-site supervisors, transportation, and reporting | General safety rules, inspections, presence, and transport decisions do not equal step-by-step control over methods | No operational control: defendants did not direct the step-by-step process of building scaffolding |
| Unsafe-work-practices exception | Defendants authorized unsafe practice by moving workers and failing to stop work in gusting winds | The relevant unsafe practice is carrying boards on the platform in gusting winds; Brand chose to work; mere observation/transport is not authorization | No express or implied authorization; exception fails because Brand participated in the decision to work |
| Direct negligence / affirmative duty or hazard creation | Defendants assumed a duty or created the hazard (transportation, issuing equipment, supervisors, safety rules) | No affirmative assumption of a duty; issuing equipment limited; Brand controlled decision to start work | No direct negligence: defendants neither assumed a duty nor created/controlled the hazardous activity; summary judgment affirmed |
Key Cases Cited
- Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352 (federal-law exclusivity on the Outer Continental Shelf)
- Parker Drilling Mgmt. Svcs., Ltd. v. Newton, 139 S. Ct. 1881 (state law applies as surrogate federal law only where federal law leaves a gap)
- Echeverry v. Jazz Casino Co., 988 F.3d 221 (5th Cir. 2021) (defining unsafe-work-practices inquiry and allocation of weight between retained contractual control and exercised control)
- Hickman v. S. Pac. Transp. Co., 262 So. 2d 385 (La. 1972) (Hickman independent-contractor factors)
- Graham v. Amoco Oil Co., 21 F.3d 643 (5th Cir. 1994) (no duty by principal to provide safe workplace for independent contractor absent assumption or creation of hazard)
- Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir. 1987) (operational-control exception to independent-contractor rule)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary-judgment "complete failure of proof" standard)