Borrowed employment is not change of employment or work assignment for Jones Act status

Borrowed employment is not change of employment or work assignment for Jones Act status

By: John Berteau

Wilcox v. Wild Well Control Inc., 2015 U.S. App. LEXIS 12878, 2015 WL 4509566 (5th Cir. 2015). In Chandris, Inc. v. Latsis, 515 U.S. 347 (1995) the Supreme Court established that to qualify as a Jones Act seaman, a worker must prove that his duties “contribute to the function of the vessel or to the accomplishment of its mission,” and “have a substantial connection to a vessel in navigation both in duration and nature.” A substantial connection in duration was determined to be in excess of thirty percent of working time aboard a vessel.However, when determining seaman status, the Supreme Court has said that it is preferable to focus on the essence of what it means to be a seaman rather than relying on detailed tests, and that the Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to the hazards of the sea. The thirty-percent rule is to be applied in consideration of the purpose of the Jones Act, and seaman status is a fluid concept based on a worker’s permanent assigned duties. As a worker’s permanent duties change, so does his seaman status.In an opinion published on July 24, 2015, the U.S. Court of Appeals for the Fifth Circuit held that when a worker became a borrowed employee, his Jones Act status did not change, as the term of borrowed employment is too narrow a focus to determine seaman status. Further, the Court determined that a Master Service Agreement (MSA) violated the Louisiana Oilfield Anti-Indemnity Act and that a Vessel Boarding, Utilization and Hold Harmless Agreement (VBA) agreed to by a party does not extend to their subsidiaries.The plaintiff, Wilcox, is employed as a welder by Max Welders. While employed by Max Welders the plaintiff has worked for thirty-four (34) different customers on one hundred ninety-one (191) different jobs, both offshore and on shore. Wilcox was loaned by Max Welders to Wild Well Control, Inc (Wild Well) for a specific welding project which was to last two months. Wilcox was allegedly injured while working for Wild Well when gases exploded as he was welding inside on the well platform. Wilcox argued that he should be considered a Jones Act seaman, and that his status should be determined from the time he began working for Wild Well, rather than his total course of employment for Max Welders.The court rejected the plaintiff’s argument that Roberts v. McWilliams Co., 675 F.2d 255 (5th Cir. 1981) and other pre-Chandris cases suggest that borrowed employees can become seamen using only the term of their borrowed employment to determine seaman status.Instead, the Fifth Circuit affirmed the district court’s ruling by relying on their earlier decisions in Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) and New v. Associated Painting Services, Inc. 863 F.2d 1205 (5th Cir. 1989). In Barrett, the court held that seaman status was to be determined in the context of a worker’s entire employment with his current employer and in New, the court held, in a case that presented facts similar to Wilcox, that a borrowed painter working offshore did not obtain seaman status because status was to be determined in the context of the worker’s entire employment, rather than the term of his borrowed employment.Regarding the MSA issue, cross-claimants Superior Energy Services, Inc (Superior) and subsidiary Wild Well alleged that Max Welders agreed to indemnify and hold harmless Superior and its subsidiaries against any personal injury claims brought by Max Welders employees pursuant to a 2004 MSA. The District Court ruled that the MSA’s “obligations to defend or indemnify” were void and unenforceable under the Louisiana Oilfield Anti-Indemnity Act. The Fifth Circuit agreed and affirmed the District Court’s granting of summary judgment to Max Welders on the MSA issue.Regarding the VBA issue, in the alternative to the MSA, cross-claimant Superior argued that Max Welders owed Superior and its subsidiaries indemnity pursuant to a 2010 VBA. The District Court ruled that the VBA agreed upon by Superior and Max Welders did not also extend the indemnity to Superior’s subsidiary Wild Well. The Fifth Circuit agreed and affirmed the District Court’s granting of summary judgment to Max Welders on the VBA issue.