           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 3, 2009

                                     No. 08-31155                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



STEPHEN BROWN

                                                   Plaintiff-Appellee
v.

TOTAL E & P USA INC,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                  2:07-CV-8133


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Total E&P USA, Inc. (“Total”) appeals a final
judgment from the district court in favor of Plaintiff-Appellee Stephen Brown
(“Brown”).
       Superior Offshore International, LLC (“Superior”) was hired by Total to
perform construction services on Total’s VK823 production platform located in
the Gulf of Mexico. Brown, an employee of Superior, was injured in the process


       *
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-31155

of moving a four-by-four foot piece of metal grating (“skid”) by crane on the deck
of the platform. Brown sued Total for negligence and sought to recover damages
for the injury he suffered in the accident. At trial, conflicting testimony was
provided by Total and Superior personnel.        Brown argued that Total was
negligent because Total gave Brown and Superior an express order to engage in
an unsafe work activity by requiring the skid to be lifted in one piece, and that
Total ignored Superior employees’ recommendations for alternative methods of
moving the skid. Total denied this version of the facts, and asserted as a defense
to negligence that because Superior was an independent contractor, or, in the
alternative, a borrowed servant, Total could not be held liable. The negligence
question was submitted to the jury, which returned a verdict for Brown. Total
moved for judgment as a matter of law (“JMOL”). The district court denied the
motion, and Total appeals.
      A motion for JMOL in a case tried by jury is a challenge to the legal
sufficiency of the evidence supporting the jury’s verdict. Coffel v. Stryker Corp.,
284 F. 3d 625, 630 (5th Cir. 2002) (citation omitted). We review the denial of a
motion for JMOL de novo, but accord deference to a jury verdict. Thompson v.
Connick, 553 F.3d 836, 850-51 (5th Cir. 2008) (citations omitted). We will
reverse a jury’s verdict only if the facts point so strongly and overwhelmingly in
the movant’s favor that reasonable jurors could not reach a contrary conclusion.
Id. at 851 (citation omitted). We “must draw all reasonable inferences in favor
of the nonmovant and disregard all evidence favorable to the moving party that
the jury is not required to believe...[, and] may not make credibility
determinations or weigh the evidence.” Id. (citation and internal quotation
marks omitted).


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                                    No. 08-31155

      Total first argues that Superior was an independent contractor, thus
shielding Total from liability.1 “[A] principal. . . cannot be liable for injuries
resulting from the negligent acts of an independent contractor. . . unless. . . the
principal retains operational control over the contractor’s acts or expressly or
impliedly authorizes those acts.” Coulter v. Texaco, Inc., 117 F.3d 909, 912 (5th
Cir. 1997). Total cites Landry v. Huthnance Drilling Co., 889 F.2d 1469 (5th
Cir.) for the proposition that it did not retain the requisite operational control.
In Landry, we held that it is not enough to find operational control where the
principal retains the right to stop work or make suggestions, but that “[t]here
must be such a retention of right of supervision that the contractor is not
entirely free to do the work in his own way.” 889 F.2d at1471. Total argues that
it merely provided suggestions as to how the skid should be moved, and that at
all times Superior was responsible to supervise its own work and their own
employees. However, the evidence presented at trial is legally sufficient to find
that: Total ordered the Superior employees to perform a dangerous lift; rejected
alternative, safer methods for doing so; the unsafe operation ordered by Total
caused Brown’s injuries; and the accident would not have occurred had safer
methods to lift the skid been applied. We decline to find that Total has shown
that the facts point so strongly and overwhelmingly in its favor that reasonable
jurors could not reach a contrary conclusion. Thompson, 553 F.3d at 851.
      The evidence is legally sufficient to find that the independent contractor
defense does not apply to shield Total from liability. The district court was thus



      1
        As an initial matter, there is confusion as to whether the district court applied
Alabama or Louisiana law in this case. However, Total concedes that the relevant law on
independent contractor liability in the two states are the same.

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correct to deny Total’s motion for JMOL.2 The judgment is AFFIRMED.




      2
        Total abandons its “borrowed servant” defense on appeal. Accordingly, we do not
address it.

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