                     IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE FIFTH CIRCUIT



                                         No. 01-30727



       PHILLIP ALLEN,

                                                           Plaintiff-Appellant,

                                             versus

       TEXACO, INC.,

                                                           Defendant-Appellee.


                   Appeal from the United States District Court for
                          the Eastern District of Louisiana
                            (USDC No. 99-CV-1456-R)
           _______________________________________________________
                                   May 15, 2002


Before REAVLEY, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

       Plaintiff-Appellant Phillip Allen appeals the district court’s order granting

summary judgment on his suit for negligence against Texaco. We AFFIRM the

decision of the district court for the reasons provided by that court.


       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       With respect to Allen’s argument that the district court erroneously placed the

burden on him to negate the “borrowed servant” affirmative defense, the court does

not appear to have done so. The court never stated that Allen would bear the

burden of proof on the borrowed servant issue at trial, and correctly stated the law

relating to burden of proof issues. Rather than finding that Allen failed to put forth

evidence on the borrowed servant issue, the court concluded that “the facts

overwhelmingly support a finding that plaintiff was Texaco’s borrowed employee.”

The record supports this conclusion.

       Though not discussed by the parties or the district court, we also note that

generally under this Court’ s precedent, a contractual provision like §1(D) of the

Master Work Agreement creates an issue of material fact on the borrowed servant

issue.1 However, the undisputed facts relating to the other borrowed servant

factors2 point so strongly toward a borrowed servant relationship that summary

judgment was appropriate despite contract language purporting to limit Texaco’s

control over Allen.3


       1
           Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 378 (5th Cir. 1985).
       2
         Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir. 1969) (identifying the factors that
courts should typically look to in determining whether an employee is a borrowed servant).
       3
         Alday, 750 F.2d at 379 (citing Gaudet v. Exxon Corp., 562 F.2d 351, 358-59 (5th Cir.
1977)). The Court also notes that the Master Work Agreement in the present case did not as
strongly disavow the intent to create a borrowed servant relationship as did the contract at issue

                                                  2
       AFFIRMED.




in Alday, or in a similar case, West v. Kerr-McGee Corp., 765 F.2d 526, 531 (5th Cir. 1985).

                                               3
