Date: December 2013

Convict's Suit Against Louisiana Shipyard Thrown Out

In Redmond v. Superior Shipyard and Fabrication, the Louisiana First Circuit Court of Appeal once again held that the terms of a contract for borrowed labor do not conclusively establish the nature of the relationship between a worker and the company benefiting from his labor. On November 1, 2013, the First Circuit affirmed a ruling which dismissed a convict's negligence suit against a Louisiana shipyard on the grounds that the shipyard was immune from tort liability.

A. Background

Superior Shipyard and Fabrication, Inc. ("Superior") operates a shipyard in Golden Meadow, Louisiana. Superior contracted with Global Oil Field Contractors, LLC ("Global") to provide workers that Superior needed in connection with its shipbuilding operations. The Superior/Global contract specifically stated that the Global workers were not employees of Superior. Global fulfilled the contract by employing inmates from the Terrebonne Parish Work Release Program.

In December 2010, Global arranged for the Terrebonne Parish Sheriff's Office to assign plaintiff, Brian Redmond, to Superior to perform welding and other services. Global hired Redmond on December 4, 2010 and assigned him to Superior. 

Each day a Global employee would transport Redmond from prison to the Superior facility and back to prison at the end of the work shift. At Superior, Redmond attended a daily work schedule meeting conducted by Superior and received his work assignment from the Superior foreman. 

On December 16, 2010, ten days after his first work day, Redmond was allegedly injured at Superior's facility when the scaffolding on which he was standing broke, causing him to fall.

B. Dispute

Redmond filed suit against Superior alleging that the accident and his injuries were caused by the negligence of Superior and its employees. Superior denied liability, maintained plaintiff was a borrowed employee and filed a motion for summary judgment to have plaintiff's suit dismissed. The trial court found Redmond to be a borrowed employee of Superior and dismissed plaintiff's suit since plaintiff's exclusive remedy was workers' compensation, under either the Longshore and Harbor Workers' Compensation Act (LHWCA) or the Louisiana Workers' Compensation Act. Redmond appealed and the First Circuit affirmed the trial court's ruling.

C. Discussion

The issue on appeal was whether the trial court erred in concluding that plaintiff was a borrowed servant of Superior. The factors a court must consider in determining the existence of a borrowed employee relationship include: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by the general employer; which employer's work was being performed at the time in question; the existence of an agreement, either implied or explicit, between the borrowing and lending employer; furnishing of instructions, tools and place for the performance of the work; the length of employment; and the employee's acquiescence in a new work situation.

The First Circuit concluded that the evidence presented in support of Superior's motion for summary judgment overwhelmingly established that Redmond was its borrowed employee.

D. Why is this important?

1. A company may enjoy immunity from negligence suits brought by a laborer even when the worker is employed by another company.
2. The specific wording of a contract is not conclusive. Parties cannot automatically prevent a legal status like "borrowed employee" from arising merely by stating in a contract that such a relationship cannot arise. Rather, the reality at the worksite and the parties' actions in carrying out the contract can impliedly modify, alter, or waive express contract provisions. 
3. Understanding the factors that a court will consider can help companies develop policies and procedures that support a finding that contract-laborers are borrowed employees. This creates tort immunity against claims like the one asserted by Redmond.

Article written by W. Brett Mason and Saul R. Newsome.

Date: December 2013

Convict's Suit Against Louisiana Shipyard Thrown Out

In Redmond v. Superior Shipyard and Fabrication, the Louisiana First Circuit Court of Appeal once again held that the terms of a contract for borrowed labor do not conclusively establish the nature of the relationship between a worker and the company benefiting from his labor. On November 1, 2013, the First Circuit affirmed a ruling which dismissed a convict's negligence suit against a Louisiana shipyard on the grounds that the shipyard was immune from tort liability.

A. Background

Superior Shipyard and Fabrication, Inc. ("Superior") operates a shipyard in Golden Meadow, Louisiana. Superior contracted with Global Oil Field Contractors, LLC ("Global") to provide workers that Superior needed in connection with its shipbuilding operations. The Superior/Global contract specifically stated that the Global workers were not employees of Superior. Global fulfilled the contract by employing inmates from the Terrebonne Parish Work Release Program.

In December 2010, Global arranged for the Terrebonne Parish Sheriff's Office to assign plaintiff, Brian Redmond, to Superior to perform welding and other services. Global hired Redmond on December 4, 2010 and assigned him to Superior. 

Each day a Global employee would transport Redmond from prison to the Superior facility and back to prison at the end of the work shift. At Superior, Redmond attended a daily work schedule meeting conducted by Superior and received his work assignment from the Superior foreman. 

On December 16, 2010, ten days after his first work day, Redmond was allegedly injured at Superior's facility when the scaffolding on which he was standing broke, causing him to fall.

B. Dispute

Redmond filed suit against Superior alleging that the accident and his injuries were caused by the negligence of Superior and its employees. Superior denied liability, maintained plaintiff was a borrowed employee and filed a motion for summary judgment to have plaintiff's suit dismissed. The trial court found Redmond to be a borrowed employee of Superior and dismissed plaintiff's suit since plaintiff's exclusive remedy was workers' compensation, under either the Longshore and Harbor Workers' Compensation Act (LHWCA) or the Louisiana Workers' Compensation Act. Redmond appealed and the First Circuit affirmed the trial court's ruling.

C. Discussion

The issue on appeal was whether the trial court erred in concluding that plaintiff was a borrowed servant of Superior. The factors a court must consider in determining the existence of a borrowed employee relationship include: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by the general employer; which employer's work was being performed at the time in question; the existence of an agreement, either implied or explicit, between the borrowing and lending employer; furnishing of instructions, tools and place for the performance of the work; the length of employment; and the employee's acquiescence in a new work situation.

The First Circuit concluded that the evidence presented in support of Superior's motion for summary judgment overwhelmingly established that Redmond was its borrowed employee.

D. Why is this important?

1. A company may enjoy immunity from negligence suits brought by a laborer even when the worker is employed by another company.
2. The specific wording of a contract is not conclusive. Parties cannot automatically prevent a legal status like "borrowed employee" from arising merely by stating in a contract that such a relationship cannot arise. Rather, the reality at the worksite and the parties' actions in carrying out the contract can impliedly modify, alter, or waive express contract provisions. 
3. Understanding the factors that a court will consider can help companies develop policies and procedures that support a finding that contract-laborers are borrowed employees. This creates tort immunity against claims like the one asserted by Redmond.

Article written by W. Brett Mason and Saul R. Newsome.

Date: December 2013

Convict's Suit Against Louisiana Shipyard Thrown Out

In Redmond v. Superior Shipyard and Fabrication, the Louisiana First Circuit Court of Appeal once again held that the terms of a contract for borrowed labor do not conclusively establish the nature of the relationship between a worker and the company benefiting from his labor. On November 1, 2013, the First Circuit affirmed a ruling which dismissed a convict's negligence suit against a Louisiana shipyard on the grounds that the shipyard was immune from tort liability.

A. Background

Superior Shipyard and Fabrication, Inc. ("Superior") operates a shipyard in Golden Meadow, Louisiana. Superior contracted with Global Oil Field Contractors, LLC ("Global") to provide workers that Superior needed in connection with its shipbuilding operations. The Superior/Global contract specifically stated that the Global workers were not employees of Superior. Global fulfilled the contract by employing inmates from the Terrebonne Parish Work Release Program.

In December 2010, Global arranged for the Terrebonne Parish Sheriff's Office to assign plaintiff, Brian Redmond, to Superior to perform welding and other services. Global hired Redmond on December 4, 2010 and assigned him to Superior. 

Each day a Global employee would transport Redmond from prison to the Superior facility and back to prison at the end of the work shift. At Superior, Redmond attended a daily work schedule meeting conducted by Superior and received his work assignment from the Superior foreman. 

On December 16, 2010, ten days after his first work day, Redmond was allegedly injured at Superior's facility when the scaffolding on which he was standing broke, causing him to fall.

B. Dispute

Redmond filed suit against Superior alleging that the accident and his injuries were caused by the negligence of Superior and its employees. Superior denied liability, maintained plaintiff was a borrowed employee and filed a motion for summary judgment to have plaintiff's suit dismissed. The trial court found Redmond to be a borrowed employee of Superior and dismissed plaintiff's suit since plaintiff's exclusive remedy was workers' compensation, under either the Longshore and Harbor Workers' Compensation Act (LHWCA) or the Louisiana Workers' Compensation Act. Redmond appealed and the First Circuit affirmed the trial court's ruling.

C. Discussion

The issue on appeal was whether the trial court erred in concluding that plaintiff was a borrowed servant of Superior. The factors a court must consider in determining the existence of a borrowed employee relationship include: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by the general employer; which employer's work was being performed at the time in question; the existence of an agreement, either implied or explicit, between the borrowing and lending employer; furnishing of instructions, tools and place for the performance of the work; the length of employment; and the employee's acquiescence in a new work situation.

The First Circuit concluded that the evidence presented in support of Superior's motion for summary judgment overwhelmingly established that Redmond was its borrowed employee.

D. Why is this important?

1. A company may enjoy immunity from negligence suits brought by a laborer even when the worker is employed by another company.
2. The specific wording of a contract is not conclusive. Parties cannot automatically prevent a legal status like "borrowed employee" from arising merely by stating in a contract that such a relationship cannot arise. Rather, the reality at the worksite and the parties' actions in carrying out the contract can impliedly modify, alter, or waive express contract provisions. 
3. Understanding the factors that a court will consider can help companies develop policies and procedures that support a finding that contract-laborers are borrowed employees. This creates tort immunity against claims like the one asserted by Redmond.

Article written by W. Brett Mason and Saul R. Newsome.

Date: December 2013

Convict's Suit Against Louisiana Shipyard Thrown Out

In Redmond v. Superior Shipyard and Fabrication, the Louisiana First Circuit Court of Appeal once again held that the terms of a contract for borrowed labor do not conclusively establish the nature of the relationship between a worker and the company benefiting from his labor. On November 1, 2013, the First Circuit affirmed a ruling which dismissed a convict's negligence suit against a Louisiana shipyard on the grounds that the shipyard was immune from tort liability.

A. Background

Superior Shipyard and Fabrication, Inc. ("Superior") operates a shipyard in Golden Meadow, Louisiana. Superior contracted with Global Oil Field Contractors, LLC ("Global") to provide workers that Superior needed in connection with its shipbuilding operations. The Superior/Global contract specifically stated that the Global workers were not employees of Superior. Global fulfilled the contract by employing inmates from the Terrebonne Parish Work Release Program.

In December 2010, Global arranged for the Terrebonne Parish Sheriff's Office to assign plaintiff, Brian Redmond, to Superior to perform welding and other services. Global hired Redmond on December 4, 2010 and assigned him to Superior. 

Each day a Global employee would transport Redmond from prison to the Superior facility and back to prison at the end of the work shift. At Superior, Redmond attended a daily work schedule meeting conducted by Superior and received his work assignment from the Superior foreman. 

On December 16, 2010, ten days after his first work day, Redmond was allegedly injured at Superior's facility when the scaffolding on which he was standing broke, causing him to fall.

B. Dispute

Redmond filed suit against Superior alleging that the accident and his injuries were caused by the negligence of Superior and its employees. Superior denied liability, maintained plaintiff was a borrowed employee and filed a motion for summary judgment to have plaintiff's suit dismissed. The trial court found Redmond to be a borrowed employee of Superior and dismissed plaintiff's suit since plaintiff's exclusive remedy was workers' compensation, under either the Longshore and Harbor Workers' Compensation Act (LHWCA) or the Louisiana Workers' Compensation Act. Redmond appealed and the First Circuit affirmed the trial court's ruling.

C. Discussion

The issue on appeal was whether the trial court erred in concluding that plaintiff was a borrowed servant of Superior. The factors a court must consider in determining the existence of a borrowed employee relationship include: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by the general employer; which employer's work was being performed at the time in question; the existence of an agreement, either implied or explicit, between the borrowing and lending employer; furnishing of instructions, tools and place for the performance of the work; the length of employment; and the employee's acquiescence in a new work situation.

The First Circuit concluded that the evidence presented in support of Superior's motion for summary judgment overwhelmingly established that Redmond was its borrowed employee.

D. Why is this important?

1. A company may enjoy immunity from negligence suits brought by a laborer even when the worker is employed by another company.
2. The specific wording of a contract is not conclusive. Parties cannot automatically prevent a legal status like "borrowed employee" from arising merely by stating in a contract that such a relationship cannot arise. Rather, the reality at the worksite and the parties' actions in carrying out the contract can impliedly modify, alter, or waive express contract provisions. 
3. Understanding the factors that a court will consider can help companies develop policies and procedures that support a finding that contract-laborers are borrowed employees. This creates tort immunity against claims like the one asserted by Redmond.

Article written by W. Brett Mason and Saul R. Newsome.

Date: December 2013

Convict's Suit Against Louisiana Shipyard Thrown Out

In Redmond v. Superior Shipyard and Fabrication, the Louisiana First Circuit Court of Appeal once again held that the terms of a contract for borrowed labor do not conclusively establish the nature of the relationship between a worker and the company benefiting from his labor. On November 1, 2013, the First Circuit affirmed a ruling which dismissed a convict's negligence suit against a Louisiana shipyard on the grounds that the shipyard was immune from tort liability.

A. Background

Superior Shipyard and Fabrication, Inc. ("Superior") operates a shipyard in Golden Meadow, Louisiana. Superior contracted with Global Oil Field Contractors, LLC ("Global") to provide workers that Superior needed in connection with its shipbuilding operations. The Superior/Global contract specifically stated that the Global workers were not employees of Superior. Global fulfilled the contract by employing inmates from the Terrebonne Parish Work Release Program.

In December 2010, Global arranged for the Terrebonne Parish Sheriff's Office to assign plaintiff, Brian Redmond, to Superior to perform welding and other services. Global hired Redmond on December 4, 2010 and assigned him to Superior. 

Each day a Global employee would transport Redmond from prison to the Superior facility and back to prison at the end of the work shift. At Superior, Redmond attended a daily work schedule meeting conducted by Superior and received his work assignment from the Superior foreman. 

On December 16, 2010, ten days after his first work day, Redmond was allegedly injured at Superior's facility when the scaffolding on which he was standing broke, causing him to fall.

B. Dispute

Redmond filed suit against Superior alleging that the accident and his injuries were caused by the negligence of Superior and its employees. Superior denied liability, maintained plaintiff was a borrowed employee and filed a motion for summary judgment to have plaintiff's suit dismissed. The trial court found Redmond to be a borrowed employee of Superior and dismissed plaintiff's suit since plaintiff's exclusive remedy was workers' compensation, under either the Longshore and Harbor Workers' Compensation Act (LHWCA) or the Louisiana Workers' Compensation Act. Redmond appealed and the First Circuit affirmed the trial court's ruling.

C. Discussion

The issue on appeal was whether the trial court erred in concluding that plaintiff was a borrowed servant of Superior. The factors a court must consider in determining the existence of a borrowed employee relationship include: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by the general employer; which employer's work was being performed at the time in question; the existence of an agreement, either implied or explicit, between the borrowing and lending employer; furnishing of instructions, tools and place for the performance of the work; the length of employment; and the employee's acquiescence in a new work situation.

The First Circuit concluded that the evidence presented in support of Superior's motion for summary judgment overwhelmingly established that Redmond was its borrowed employee.

D. Why is this important?

1. A company may enjoy immunity from negligence suits brought by a laborer even when the worker is employed by another company.
2. The specific wording of a contract is not conclusive. Parties cannot automatically prevent a legal status like "borrowed employee" from arising merely by stating in a contract that such a relationship cannot arise. Rather, the reality at the worksite and the parties' actions in carrying out the contract can impliedly modify, alter, or waive express contract provisions. 
3. Understanding the factors that a court will consider can help companies develop policies and procedures that support a finding that contract-laborers are borrowed employees. This creates tort immunity against claims like the one asserted by Redmond.

Article written by W. Brett Mason and Saul R. Newsome.