                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                  May 11, 2006
                         ______________________
                              No. 05-30656                 Charles R. Fulbruge III
                                                                   Clerk
                        ______________________

                      DIRKSHAWN BRYAN; MAXINE BRYAN
                          Plaintiffs-Appellants
                                    and
                       ACE AMERICAN INSURANCE CO.
                     Intervenor Plaintiff-Appellant
                                  versus
                       SHELL OFFSHORE INC.; ET AL
                               Defendants

                           SHELL OFFSHORE INC.
                            Defendant-Appellee
          ___________________________________________________

            Appeal from the United States District Court for
                    the Western District of Louisiana
                               (03-CV-1239)
          ___________________________________________________


Before KING, STEWART, AND DENNIS, Circuit Judges.

PER CURIAM:1



     Plaintiffs sued seeking compensation for injuries incurred by

Mr. Bryan when, while performing sandblasting and painting

services for a contractor hired by Shell to renovate an offshore

oil platform, he stepped on a wooden deck board which gave way,

causing him to fall. They now appeal the district court’s decision

to grant summary judgment against all claims in their premises


      1
        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 this opinion should not be published and is not precedent except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.
liability suit.

     They challenge the district court’s determination that

Chapter 95 of the Texas Civil Practice and Remedies Code applies

and further challenge the district court’s findings that Shell

lacked control and actual knowledge and that therefore has not

incurred liability under TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. We

agree with the district court’s assessment of the record and the

law and therefore affirm.


                             BACKGROUND

     Shell Offshore, Inc. (“Shell”) owns and operates a fixed

production platform in the Gulf of Mexico, off the coast of Texas

on the Outer Continental Shelf (“OCS”), the Shell High Island 350-

A (“HI 350-A” or “the platform”). Shell does not have any of its

own employees working onboard the platform; rather, Greystar

Corporation (“Greystar”) was contracted as the platform operator.

     As a part of readying the platform for sale, Shell contracted

with a company called Chet Morrison; the contract included

“[r]epair [of] any holes left or made in the wood deck resulting

from modifications required to install [a] temporary crane, etc.”

1 R. 603. While performing that job, Chet Morrison apparently

noted that other boards needed replacing beyond those immediately

referenced in the project; it replaced those additional boards

with Shell’s permission. Shell had also contracted with Salamis

Services (“Salamis”) for sandblasting and painting services to be

performed on the platform, again in preparation for sale. Mr.
Bryan was employed by Salamis on that contract, and was performing

the above tasks when he stepped on a wooden deck board that gave

way; the fall injured his back, neck, and other parts of his body.

He received benefits under the Longshore Harbor Workers’

Compensation Act (“LHWCA”) from Ace American Insurance Co.

(“Ace”), Salamis’s provider.

     Mr. Bryan and his wife (“the Bryans”) filed suit in federal

district   court   in   April   2003   against   both   Shell   and   Greystar

alleging both negligence and premises liability claims.2 Ace then

filed as intervenor on subrogation grounds. Based on the platform’s

location on the OCS off the Texas coast, the court applied Texas law3

and dismissed the negligence claims, but retained the premises

liability claims.

     The parties conducted discovery and twice participated in

unsuccessful mediation. Shell then filed a motion for                 summary

judgment, arguing that Chapter 95 of the Texas Civil Practice and

Remedies Code applied to shield it from liability. The district

court granted the motion on May 13, 2005, dismissing all of the

plaintiffs’ and the intervenor’s claims with full prejudice. The

Bryans and Ace timely appealed to this court.



                            STANDARD OF REVIEW


      2
        The claims against Greystar have since been settled. Mrs.
 Bryan’s claims for damages are based on loss of consortium.
      3
        The Outer Continental Shelf Lands Act, 43 U.S.C. § 1349,
 applies to this suit, and “adopts the law of the adjacent state.”
 Fruge v. Parker Drilling Co., 337 F.3d 558, 560 (5th Cir.2003).
     This court reviews the district court’s summary judgment

ruling de novo. Hanks v. Transcontinental Gas Pipe Line Corp., 953

F.2d 996, 997 (5th Cir. 1992). The court applies the same standard

on appeal as is applied by the district court. Terrebonne Parish

Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002)

(citing Auguster v. Vermilion Parish School Board, 249 F.3d 400,

401 (5th Cir.2001). Summary judgment is appropriate where the

record shows “that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). Facts and inferences reasonably drawn

from those facts should be taken in the light most favorable to

the non-moving party. Eastman Kodak Co. v. Image Technical

Services, Inc., 504 U.S. 451, 456 (1992); Huckabay v. Moore, 142

F.3d 233, 238 (5th Cir.1998). Where the non-moving party fails to

establish “the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial,” no genuine issue of material fact exists. Celotex, 477

U.S. at 322-3.



             TEX. CIV. PRAC. & REM. CODE ANN. Chapter 95

     Chapter 95 of the Texas Civil Practice and Remedies Code was

enacted in 1996 "to provide greater protection for property owners

against both types of premises liability claims." Arsement v.

Spinnaker Exploration Co., LLC, 400 F.3d 238, 245 (5th Cir. 2005);

see also Arsement, 400 F.3d at 249; Dyall v. Simpson Pasadena
Paper Co., 152 S.W.3d 688, 699   (Tex. App. - Houston [14th Dist.]

2004).

     Per § 95.002, the chapter's provisions apply to a claim

     (1) against a property owner...for personal injury,
     death, or property damage to...a subcontractor or an
     employee of a... subcontractor; and

     (2) that arises from the condition or use of an
     improvement to real property where the contractor or
     subcontractor constructs, repairs, renovates, or
     modifies the improvement.

     Even where both of the above requirements are met, however,

liability will not accrue unless

     (1) the property owner exercises or retains some control
     over the manner in which the work is performed [other
     than the right to start or stop work or to inspect]; and

     (2) the property owner had actual knowledge of the
     danger or condition...and failed to adequately warn.

TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. Both parts of § 95.003 must

be satisfied for liability to be imposed on an owner. Kelly v. LIN

Television of Texas, L.P., 27 S.W.3d 564, 567 (Tex. App. -

Eastland 2000).



                              ANALYSIS

     Plaintiffs allege that the district court erred (1) in

determining that Chapter 95 applied and (2) in determining that

they had not established that Shell met the requirements for

liability under the chapter. We address each issue in turn.



Applicability Of Chapter 95

     On appeal, plaintiffs’ arguments focus on (1) whether the
claim arises from the condition or use of an improvement and (2)

whether Salamis was engaged in construction, repair, renovation,

or maintenance.

      Appellants argue that the defective wooden deck boards are

the source of the injury, and do not constitute an improvement

under the statute because “his position on the platform, his work

and his services had no relation to the defect.” Appellants’ Brief

at 7. The district court, rather, found that the platform was the

improvement.

     Although the Texas Supreme Court has not yet taken up the

issue, the state courts have thus far concluded that Chapter 95

applies in such a situation. In Fisher v. Lee and Chang

Partnership, the plaintiff fell from a ladder, which "provided

appellant a means to reach his work site. It was not the object of

his work. Nevertheless, appellant's injuries arose from ‘the

failure to provide a safe workplace.'" 16 S.W.3d 198, 202 (Tex.

App. - Houston [1st Dist.] 2000) (looking to the plain language of

the statute and the legislative history); see also, Francis v.

Coastal Oil & Gas Corp., 130 S.W.3d 76, 83 (Tex. App. - Houston

[1st Dist.] 2002) ("the injuries must relate to work being done by

the injured party, but the injury-producing defect need not be the

object of the injured party's work."). Moreover, the district

court’s interpretation comports with the approach in Arsement,

where the installation of a sump deck was held to be an

improvement to a platform. Id., 400 F.3d at 242 (describing the

sump deck); Id. at 245 (noting it was undisputed that the sump
deck constituted an improvement). Although the record is not

specific, presumably Mr. Bryan was standing on the deck boards

either because he was on his way to his work site or standing on

them to carry out his work. This court is bound to make its best

determination of what the Texas Supreme Court would do, looking to

the intermediate courts where that body is silent. Howe v.

Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000). Given the

gloss used by numerous intermediate Texas courts and the adoption

of that approach by cases in this circuit, the relationship

between the boards and Mr. Bryan’s work is sufficient such that

the district court did not err in determining that no genuine

issue of material fact existed on this point.

     Appellants further argue that the sandblasting and painting

in which Mr. Bryan was engaged in fact constitute maintenance,

rather than the "construction, repair, renovation, or

modification" required by § 95.002(2). The district court refused

to make the distinction, holding instead that the activity

qualified as renovation or repair.

     A sampling of Texas court cases offers a wide range of

activities that are treated as repair or renovation, including

repairing a roof-mounted air conditioner; replacement of a

television station antenna; a "washout" of coiled tubing to

increase the flow of gas in a well; filtering mud for drilling to

improve well performance; repairing a leaking flange at a chemical

plant; and working as a "holewatch" and "firewatch" on a large

cleanup contract at a chemical plant. See, respectively, Fisher,
16 S.W.3d at 201; Kelly, 27 S.W.3d at 570; Francis, 130 S.W.3d at

82; Dyall, 152 S.W.3d 688 (which does not discuss the issue but

proceeds to analyze § 95.003); and Phillips v. The Dow Chemical

Co., 186 S.W.3d 121, 131 (Tex. App. - Houston [1 Dist.] 2005). In

an unreported case, Judge Buchmeyer of the Northern District of

Texas held that changing an air filter as a part of a janitorial

services contract did not require sufficient expertise such that

Chapter 95 would apply. Moore v. Howmet Corp., 2005 WL 856852

(N.D. Tex. 2005) at *2.

      Qualitatively, sandblasting and painting on an offshore

platform in preparation for sale is closer in nature to the fact

patterns in the various Texas cases cited above. Given the record

before it, and the wide range of activities encompassed by Texas

cases, the district court did not err in determining that there

was no genuine issue of material fact that Mr. Bryan's work

constituted "repair or renovation" such that Chapter 95 applied.



Proving Liability Under Chapter 95

     Appellants' second set of arguments assert that Shell should

not receive protection under Chapter 95 because it possessed both

(1) sufficient control over the manner in which the work was

performed and (2) actual knowledge of the danger or condition.

     Appellants’ entire argument regarding control is phrased

around whether Shell had actual control over Chet Morrison’s

replacement of the deck boards. To meet their burden under §

95.003, however, appellants needed to raise a genuine question of
material fact as to whether Shell had actual control over

Salamis’s (and by extension, Mr. Bryan’s) contracted performance,

and they have not done so. See Arsement, 400 F.3d at 249 ("[t]he

requisite control factor is narrowly construed: the owner must

control the ‘mode or method' of the contractor's work."); Dyall,

152 S.W.3d at 700-7 (“While it is certainly true that, as the

property owner, Simpson had ‘control’ of its facilities, this is

not the type of ‘control’ of which the statute speaks. Simpson

undoubtedly had the power to sell or lease its property, control

access to its property, to shut down the facilities, etc. However,

the statute speaks of ‘control over the manner in which the work

is performed.’”). The district court was thus correct in finding

that appellants had not shown that Shell retained the requisite

control.

     Appellants assert that their evidence that Chet Morrison was

hired to replace the deteriorated board and informed Shell of the

deteriorated board creates a genuine question of material fact as

to Shell's actual knowledge of the condition. The statutory

language, however, and the Texas courts’ interpretation are

uniformly clear that actual knowledge is required. See,

particularly, Dyall, 152 S.W.3d at n.18 (citing Bishop v. Nabisco,

Inc., 2004 WL 832916 at *3 (Tex. App. - Houston [14th Dist.] 2004)

for the proposition that “knowledge that an activity is

potentially dangerous is not sufficient to satisfy the second

prong of Section 95.003 - actual knowledge of the danger is

required.”). The record does not reveal that Shell failed to
address and repair any dangerous condition as to which it had been

informed. A Greystar operator had noticed no deterioration when

surveying the area the morning of the accident. The platform had

been inspected by both Deepwater Specialties and the MMS, neither

of whom identified a problem. While Shell did have notice that

deck boards near the old site of the temporary crane needed

replacing, all boards so identified had been replaced before the

day of Mr. Bryan’s accident. Appellants introduced no further

evidence indicating that Shell had actual knowledge of a

continuing problem. The district court thus properly found no

genuine question of material fact as to whether Shell possessed

the requisite actual knowledge.



                           CONCLUSIONS

      Based on the record and arguments before us, we agree with

the assessment of the district court that no genuine issue of

material fact existed with regard to any of the above issues. The

judgment of the district court is therefore AFFIRMED.
