Could La. Barge Cleaner Sue After Getting Blasted into Bayou?

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Gibson, LA (WorkersCompensation.com) – The exclusive remedy provision generally compels injured employees to seek relief solely through the state’s workers’ compensation act. But what if the individual who is injured was not hired by the company where he works, but rather by an employment agency that assigned him to work for the company.

A case involving a barge cleaner who was thrown overboard when he turned a valve that blasted pressure at him addresses that issue. A staffing agency assigned the worker to clean a liquid tank barge on the Louisiana bayou. There, for less than two weeks, he worked for an industrial cleaning company called HPC. 

The agency and HPC had a written agreement stating that agency workers were performing their work as independent contractors, not employees of HPC. The two companies also agreed that HPC had the right to require the agency to replace workers whose performance was unsatisfactory to HPC. 

While working at HPC, the agency continued to pay him.  HPC employees supervised him and he never had much contact with the agency.  He had never met anyone there or been to its office. HPC provided his tools while the agency provided none.He never complained about working at HPC.

One day, an HPC barge inspector allegedly told the worker to turn on a valve. The valve released so much pressure that it knocked the worker fifteen feet into the air and overboard into the bayou. The worker injured his shoulders and back. 

He sued HPC for negligence.

HPC argued that the Longshore and Harbor Workers' Compensation Act was the worker’s exclusive remedy, because the worker was its employee. While technically, the worker was the agency’s employee, not HPC’s, HPC asserted that he was its employee based on the “borrowed servant” doctrine. Thus, his sole avenue relief, per the LHWCA’s exclusive remedy provision, was to seek workers’ compensation benefits.

To determine whether a worker is a borrowed servant, courts in the 5th Circuit (Louisiana, Texas, and Mississippi), consider the nine factors listed below. When the borrowed servant doctrine is used as a defense to tort liability in the LHWCA context, courts focus on the fourth, fifth, sixth, and seventh factors.

1. Who has control over the employee and the work he is performing?

2. Whose work is being performed?

3. Was there an agreement between the original and the borrowing employer?

4. Did the employee acquiesce in the new work situation?

5. Did the original employer terminate its relationship with the employee?

6. Who furnished tools and the place for performance of the work?

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?

Was the barge cleaner a "borrowed servant"?

A. No. He only worked for HPC for two weeks, and his actual employer was the agency. 

B. Yes. HPC employees supervised the worker and provided his tools, and he never complained about working for HPC.

If you selected B, you agreed with the court in Kennedy v. Liquid Mud Barges, Inc., no.  22-4459 (E.D. La. 07/08/24), which found that, under the circumstances, the worker was effectively an HPC employee for purposes of workers’ compensation.

The court stated that no one factor is determinative. However, courts in the Fifth circuit focus on the fourth, fifth, sixth, and seventh factors. Those factors help establish whether the circumstances of the employment were such that the company should be considered an employer.

In holding that the worker was a borrowed servant, the court noted the following:

Factor 1. HPC exerted far more control over the employee than did the agency.

Factor 2. In cleaning the barge, the worker was engaging in HPC’s work.

Factor 3.  The agreement stated that the employers were performing their work as independent contractors, not employees of HPC.

Factor 4. The worker never complained to HPC regarding his work and never told the employment agency that he did not want to work at HPC. 

Factor 5. The agency never terminated his employment and continued to issue his paychecks. 

Still, the court noted, “[the worker] took all of his instructions from HPC employees, there were no [agency] supervisors on the jobsite, he considered HPC employers to be his supervisors, and he had never been to the [agency] office nor met anyone at [agency].”

Factor 6. HPC provided the place of work and some equipment the worker used. The agency did not provide any tools and equipment. 

Factor 7. The worker worked for HPC only briefly.

Factor 8. The Service Agreement between the two companies stated that HPC had the right to require the agency to replace workers whose performance was unsatisfactory to HPC. 

Factor 9. The agency billed HPC for labor it provided to HPC, and the agency then paid the worker.

Focusing on the fact that the worker was supervised and equipped entirely by HPC and had little to no contact with the agency, the court ruled that he was a borrowed servant.

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