Fifty Percent Negligent, and One Hundred Percent Subject to OCSLA, Fifth Circuit Rules Borrowed Employee’s Exclusive Remedy for Injuries Covered by the Longshore and Harbor Workers’ Compensation Act
By: Tristan G. Gruspier
Raicevic v. Fieldwood Energy, L.L.C., 2020 WL 6325550, 2020 U.S. App. LEXIS 33969* (5th Cir. 2020)
The Fifth Circuit Court of Appeals affirmed the district court’s decision holding the plaintiff to be a borrowed employee, and therefore barred from recovery under the exclusive remedy provision for work related accidents of the Longshore and Harbor Workers’ Compensation Act adopted by reference in the Outer Continental Shelf Lands Act (OCSLA). The plaintiff argued that the defendant failed to prove that (1) it had LHWCA insurance at the time of the incident, and (2) that it paid benefits to the plaintiff under that insurance.[1] The court, reviewing both the language of LHWCA and prior cases, held that an employer need only have LHWCA insurance at the time of the injury in order to invoke tort immunity, and therefore the plaintiff’s unique argument failed.[2]
Mr. Raicevic, an offshore platform mechanic, was injured while responding to an alarm onboard an offshore platform, located on the outer continental shelf in the Gulf of Mexico.[3] This injury, which included the need for surgery, physical therapy, and steroid injections, occurred nearly a year after Mr. Raicevic had been working and sleeping on the platform, owned by Fieldwood.[4] As a result of the injury, Mr. Raicevic sued Fieldwood and the platform operators for negligence.[5] Fieldwood countered the negligence suit, arguing Raicevic was its borrowed employee, and that LHWCA precluded any tort claim.[6]
During the trial, the jury found that Fieldwood and Raicevic were each 50% responsible for the injuries.[7] The jury also made special findings about the nine factors weighed by a court to determine borrowed employee status.[8] However, because of a motion in limine, the jury made no findings regarding the LHWCA or any other type of worker’s compensation.[9] Applying de novo review, the Fifth Circuit determined that only one of the nine factors to determine borrowed employee status plainly favored Raicevic; therefore, the court found him to be a borrowed employee.[10] As a result of the that status, Mr. Raicevic needed to prove an exception to LHWCA, in that the defendant failed to secure payment of compensation as required by the LHWCA.[11] Reviewing the district court’s decision for clear error, the Fifth Circuit confirmed that an employer only needs to have LHWCA insurance at the time of the injury to invoke the exclusive-recovery provision.[12] As Fieldwood did in fact have LHWCA insurance at the time of the injury, Mr. Raicevic’s exclusive remedy for his injury was the for workers’ compensation benefits, and judgment for the defendants was affirmed.[13]
[1] Raicevic v. Fieldwood Energy, L.L.C., 2020 WL 6325550, at * 5 (5th Cir. Oct. 28, 2020)
[2] See Id.
[3] Id. at *1
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] The nine factors articulated in Ruiz v. Shell Oil Company, are: (1) Who had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation? (2) Whose work was being performed? (3) was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer? (4) did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? And (9) Who had the obligation to pay the employee?
[9] Id.
[10] Id. at * 5
[11] Id. (citing 33 U.S.C. § 905(a))
[12] See Id. at *5
[13] Id. at * 6
