                           UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT

                                       _________________

                                          No. 99-30183
                                        Summary Calendar
                                       _________________

               GARY WOOD,

                                               Plaintiff-Appellant,

               versus

               MERIDIAN OIL PRODUCTION INC.; ET AL,

                                               Defendants,

               BURLINGTON RESOURCES OIL & GAS CO., formerly known as
               Meridian Oil Production Ind., formerly known as Meridian Oil Inc.;
               BURLINGTON RESOURCES OFFSHORE INC., formerly known
               as Meridian Offshore Inc.; BURLINGTON RESOURCES
               HYDROCARBONS INC., formerly known as Meridian Oil
               Hydrocarbons Inc.; BURLINGTON RESOURCES MARKETING
               INC., formerly known as Meridian Oil Marketing Inc.;
               BURLINGTON RESOURCES TRADING INC., formerly known as
               Meridian Oil Trading Inc.,

                                               Defendants-Appellees.



                           Appeal from the United States District Court
                              for the Western District of Louisiana
                                         (97-CV-1816)

                                         October 13, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

       Gary Wood (“Wood”) sued Burlington Resources Oil & Gas Co. (“Burlington”), formerly

known as Meridian Oil Inc., seeking damages for injuries that he allegedly suffered while working

on one of Burlington’s offshore platforms. At the time of the accident, Wood was nominally



   *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
employed as a co ntract production operator by Island Operating Company (“Island”). Island

provided Wood’s services to Burlington pursuant to a service contract. On his second day of work

on Burlington’s platform, Wood strained his back while assisting a Burlington crane operator replace

a heavy grating. The district court granted summary judgment in favor of Burlington on the grounds

that Wood was a “borrowed servant” and, consequently, Burlington was immune to suit under the

exclusive remedy provision of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),

33 U.S.C. 905(a) (1986). Wood appeals, arguing that the contract between Burlington and Island

creates a genuine issue of material fact precluding summary judgment. We affirm.

        We review a district court’s decision to grant a motion for summary judgment de novo,

applying the same standard as the district court. See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th

Cir. 1992). The issue of whether an employee is a borrowed servant is a question of law, and

therefore also reviewed de novo. See Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977).

        In Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969), we set out nine factors to be assessed

in determining whether the borrowed employee doctrine applies. Since then, we have held that no

single factor, or combination of them, is decisive. See Brown v. Union Oil Co. of California, 984

F.2d 674, 676 (5th Cir. 1993). We must, thus, apply the facts of the present case to the Ruiz factors.

        (1) Who had control?

        Wood’s own deposition testimony established that he followed the instructions of the

Burlington supervisor “to the letter.” Similarly, the undisputed affidavits of Burlington supervisors

establish that they issued all of Wood’s work orders while in the field. Finally, the president of Island

stated that Island temporarily turned over Wood to Burlington for purposes of all instruction and

supervision.

        (2) Whose work was being performed?

        It is undisputed that Wood performed work solely for Burlington.

        (4) Did the employee acquiesce?

        The fourth factor focuses on whether the employee was aware of his work conditions and


                                                  -2-
chose to continue working in them. See Brown v. Union Oil, 984 F.2d 674, 678 (5th Cir. 1993).

While there is no evidence that Wood complained about his work conditions during his two days on

the platform, two days does not seem a sufficient amount of time for Wood to have gathered a full

appreciation for his new work conditions. Consequently, this factor is neutral.

       (5) Did the original employer terminate its relationship with the employee?

       The focus of the fifth factor is on the lending employer’s relationship with the employee while

he is working for the borrowing employer. See Capps v. N.L. Baroid- N.L. Industries, 784 F.2d 615,

617 (5th Cir. 1986). In this case, Wood testified that once he arrived at Burlington’s platform, he

had no contact with Island.

       (6) Who furnished the tools and place for performance?

       There is no dispute that Burlington provided Wood with the tools and place of performance.

       (7) Was a the new employment over a considerable length of time?

       Wood had been working for Burlington for only two days when he suffered his injury. Where

employment has been brief, we find that this factor cuts neither for or against finding borrowed

employee status. See Billizon v. Conoco, 993 F.2d 104, 106 (5th Cir. 1993); Brown, 984 F.2d at 679

(finding seventh factor neutral where period of employment was only one month); Capps, 784 F.2d

at 618 (“In the case where the length of employment is considerable, this factor supports a finding

that the employee is a borrowed employee; however, the converse is not true.”).

       (8) Who had the right to discharge the employee?

       While Island had the ultimate power to terminate Wood from its employment. Burlington

retained authority to terminate Wood’s employment with Burlington. On appeal, Wood argues that

the right to terminate Wood from the platform is inconsequential since Wood would still be employed

by Island. We have previously rejected this argument and again find that since Burlington had the

right to discharge Wood from his employment with Burlington, this factor favors a finding of

borrowed employment. See Capps, 784 F.2d at 618.

       (9) Who had the obligation to pay the employee?


                                                -3-
        Wood testified that his time sheets were verified by a Burlington supervisor and then faxed

to Island. Island would then pay Wood directly and bill Burlington at a higher rate for the work

performed. This type of payment arrangement favors borrowed-employee status. See Melancon v.

Amoco Production Co., 834 F.2d 1238, 1246 (5th Cir. 1988) (alleged borrowing employer had

obligation to pay employee where they furnished the funds to nominal employer who paid employee

directly); see also Brown v. Union Oil Co. of Calif., 984 F.2d 674, 679 (5th Cir. 1993).

        (3) Was there an agreement or understanding between Island and Burlington?

        The third factor is the only one potentially weighing in Wood’s favor. The service contract

between Burlington and Island provided as follows:

        CONTRACTOR [Island] specifically agrees that all persons employed by
        CONTRACTOR in performing work covered by this Agreement, or by
        CONTRACTOR’S subcontractors, are not the employees of MERIDIEN
        [Burlington] for any purposes whatsoever . . ..

Wood contends that this provision precludes a finding of borrowed employment.             Because the

district court did not address the impact of this particular language on their decision, we analyze its

effect for the first time on appeal.

        The quoted provision is clearly relevant in determining whether Wood was a borrowed

servant1. However, we have previously held that “parties to a contract cannot automatically prevent

a legal status like ‘borrowed employee’ from arising merely by saying in a provision in their contract

that it cannot arise.” Melancon v. Amoco Production Co. , 834 F.2d 1238, 1245 (5th Cir. 1988).

The reality of the worksite and the manner in which parties carry out a contract can implicitly modify

or waive an express provision in a written service contract. See id. at 1245. Here, the clear language

of the provision seems to foreclose the possibility that Wood was a borrowed employee. However,

the reality of life on the platform suggest that Island and Burlington came to a different


   1
        Wood’s argument that Burlington must first demonstrate that the contract provision is “null
and void” is without merit. When assessing identical situations in the past, we have consistently
addressed the impact of the provision on the borrowed servant analysis without questioning the
validity of the contract. See, e.g., West v. Kerr-McKee Corp., 765 F.2d 526 (5th Cir. 1985); Billizon
v. Conoco, 993 F.2d 104 (5th Cir. 1993).

                                                 -4-
understanding. Wood ate and slept with Burlington employees, took his orders from Burlington

supervisors, had his time sheets reviewed by Burlington, and never interacted with Island. Thus,

the contract raises a factual dispute as to the meaning of the agreement between the two employers.

       We are now faced with the same question addressed in Billizon: “[W]hether the existence of

a contract provision purporting to prohibit borrowed-employee status makes the district court’s

summary judgment inappropriate, given that such a contract provision could create a factual dispute

on the third factor if the other factors were disregarded.” Billizon v. Conoco, 993 F.2d 104, 106 (5th

Cir. 1993). When addressing this issue in the past we have held that, where all other factors clearly

point to borrowed-servant status, summary judgment is appropriate. See Billizon 993 F.2d at 106

(granting summary judgment where seven factors favored borrowed-servant status and one was

neutral); Alexander v. Chevron, U.S.A., 806 F.2d 526 (5th Cir. 1986); Gaudet v. Exxon Corp., 562

F.2d 351 (5th Cir. 1977). Here, the first, second, fifth, sixth, eighth, and ninth factors favor our

finding borrowed-employee status. Even if we find that the third factor favors Wood’s position and

exclude the fourth and seventh factors as neutral, the remaining factors provide sufficient evidence

to find a borrowed servant relationship. We reached the same conclusion under nearly identical

circumstances in Billizon, where seven factors favored borrowed employee status, one factor was

neutral, and the third factor cut against finding a borrowed employee relationship. See Billizon, 993

F.2d at 106. Accordingly, we conclude that, as a matter of law, Wood was a borrowed employee.2

The judgment of the district court is AFFIRMED.




   2
        Wood further argues that, regardless of the outcome of the Ruiz analysis, Burlington cannot
be immune from liability because it did not pay Wood’s workers’ compensation benefits. We have
repeatedly rejected this argument. See, e.g., Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1246-47
n.17 (5th Cir. 1988) (permitting tort immunity under the LHWCA to employer who did not fund
employee’s workers compensation benefits) ; Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615,
619 (5th Cir. 1986) ( LHWCA does not abolish the borrowed employer doctrine); Doucet v. Gulf Oil
Corp., 783 F.2d 518, 522 (5th Cir. 1986); West v. Kerr-McGee Corp., 765 F.2d 526, 530 (5th 1985).

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