United States District Court, E.D. Arkansas, Jonesboro Division
KASSANDRA NIEVES, Individually and as Personal Representative of the Estate of Juan Nieves, and His Surviving Heirs and Dependents PLAINTIFF
COOPER MARINE & TIMBERLANDS CORPORATION; LOGISTIC SERVICES, INC.; STEEL DYNAMICS COLUMBUS, LLC; KINDER MORGAN BULK TERMINALS, INC.; and KINDER MORGAN MARINE SERVICES, LLC DEFENDANTS
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
Morgan Bulk Terminals, Inc., previously filed a motion for
summary judgment, arguing that it was a borrowing employer of
Nieves and therefore entitled to immunity from liability
under section 905(a) of the Longshore and Harbor Workers'
Compensation Act. Document #84. The Court denied that motion.
Document #104. Kinder Morgan now moves for reconsideration of
that motion. The motion is denied.
relevant facts have been adequately set forth in the
Court's prior opinions and will not be repeated.
See Documents #104 and #175. The Court adds only
that Kinder Morgan now contends that new evidence has
surfaced that is sufficient to warrant a reversal of the
Court's previous ruling. This new evidence consists of
time sheets reflecting that Nieves worked on the "coil
dock" for three years leading up to the accident and an
affidavit from Clifton Luttrull testifying that the time
sheets reflected reality.
Court held in its first opinion that it could not say as a
matter of law that Kinder Morgan was a borrowing employer in
part because the contract that memorialized the agreement
between Kinder Morgan and Nieves's payroll employer,
Temps Plus, Inc., expressly provided that Kinder Morgan was
not Nieves's employer. Moreover, Kinder Morgan required
Nieves to sign documents acknowledging that he was not an
employee of Kinder Morgan. Document #104 at 11-12. As the
Court has previously stated, that Kinder Morgan contractually
agreed that it was not Nieves's employer makes it
difficult to say that there is no evidence to that effect.
See West v. Kerr-McGee Corp., 765 F.2d 526, 531 (5th
Cir. 1985) (reversing grant of summary judgment where alleged
borrowing employer signed a contract expressly rejecting the
designation of worker as an employee "for any
purpose"); Alday v. Patterson Truck Line, Inc.,
750 F.2d 375, 378 (5th Cir. 1985) (holding that similar
contractual provisions raised an issue of fact as to
worker's status as an alleged borrowed employee that
precluded summary judgment).
Morgan attempts to avoid this conclusion by citing two Fifth
Circuit cases decided subsequent to West and
Alday. See Melancon v. Amoco Prod. Co., 834 F.2d
1234, 1245 (5th Cir.) amended on reh 'g in part,
841 F.2d 572 (5th Cir. 1998); Billizon v. Connoco,
Inc., 993 F.2d 104 (5th Cir. 1996). In
Melancon, the court distinguished Alday day
and West on the ground that those cases were decided
at the summary judgment stage, whereas Melancon was
decided after a full trial. 834 F.2d at 1245 n.13. While
Billizon was decided at the summary judgment stage,
the only factor weighing against finding that the worker was
a borrowed employee was the existence of a contract stating
that he would not be deemed an employee; the remaining
factors clearly pointed to borrowed-employee status. 993 F.2d
at 106. Seven of the nine Ruiz factors supported
finding that the worker was a borrowed employee and one was
neutral. Id. This Court, in its initial opinion on
the borrowed employee issue, thoroughly considered the
Ruiz factors and held that some of them pointed in
favor of finding a borrowed-servant relationship while others
did not. See Document #104 at 10-14.
Billizon, therefore, is not on point.
Morgan is correct to say that the contract, alone, is
insufficient to avoid a finding that Nieves was its borrowed
employee. The Court has never said to the contrary.
Nonetheless, that Kinder Morgan contractually agreed that
Nieves was not its employee makes it difficult for Kinder
Morgan to argue that there is no genuine dispute of material
fact and that Nieves was its borrowed employee as a matter of
law. The other Ruiz factors are sufficiently in
dispute to render this case governed, at the summary judgment
stage, by West and Alday rather than by
Melancon or Billizon.
the reasons for this Court's prior ruling was a lack of
evidence demonstrating that Nieves acquiesced in his
assignment as a stevedore. Document #104 at 12-13. Kinder
Morgan argues that its newly offered evidence demonstrates
that Nieves acquiesced in his work assignment.
initially was sent to Kinder Morgan to work as a cutting
torch operator. His original assignment as a cutting torch
operator did not entail maritime work and therefore did not
satisfy the "status" test under the Longshore Act.
See Herb's Welding, Inc. v. Gray, 470 U.S. 414,
424-25, 105 S.Ct. 1421, 1422-28, 84 L.Ed.2d 406 (1985)
(holding that the Longshore Act requires satisfaction of both
a "situs" and "status" test and
explaining that "not everyone on a covered situs
automatically satisfies the status test"). The status
test is "an occupational test that focuses on loading
and unloading." Id. at 424, 105 S.Ct. at 1427
(quoting P.C. Pfeiffer v. Ford, 444 U.S. 69, 80, 100
S.Ct. 328, 336, 62 L.Ed.2d 225 (1979)). Nieves was injured
while unloading steel coils from a barge on the Mississippi
River, which meets both the status and situs tests. If Nieves
had unloaded barges for three years, the Court would be
warranted in finding that he had acquiesced in that work
assignment before the accident that resulted in his death.
See Brown v. Union Oil Co. of Calif., 984 F.2d 674,
678 (5th Cir. 1993). That he had worked on the "coil
dock" for three years does not, however, establish that
he had been unloading barges for that period. Evidence
showing that Nieves worked on the coil dock tells us where he
was working, not what he was doing; it goes to situs, not his
status. Proximity to the water is insufficient to confer
coverage under the Longshore Act. Herb's
Welding, 470 U.S. at 425-26, 105 S.Ct. at 1428. The new
evidence establishes how long Nieves had worked on the coil
dock-near the water-but not how long Nieves had been loading
and unloading barges-which is the critical issue with respect
to acquiescence. The new evidence, therefore, is insufficient
to show that Nieves acquiesced in the work he was performing
on the date of his death.
renewed motion for summary judgment is ...