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

                                                                            FILED
                                                                         January 23, 2009

                                     No. 08-30754                     Charles R. Fulbruge III
                                   Summary Calender                           Clerk


ALVIN J HOTARD

                                                  Plaintiff - Appellant
v.

DEVON ENERGY PRODUCTION CO L P

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                No. 6:07-CV-1476


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Alvin Hotard sued Devon Energy Production Company, L.P., (“Devon”) to
recover damages for injuries he suffered while working as a mechanic on an
offshore platform operated by Devon. The injuries arose after Hotard was bitten
by a spider while sleeping in his bunk on the platform. At the time of the
incident, Hotard was employed by Wood Group Production Services (“Wood
Group”). Wood Group is in the business of supplying laborers for work in the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-30754

oilfield industry. The district court granted summary judgment in favor of
Devon on the grounds that Hotard was Devon’s “borrowed employee,” which
grants Devon tort immunity under the Longshore and Harbor Workers’
Compensation Act (“LHWCA”), 33 U.S.C. § 905(a), and that Hotard was in the
course and scope of his employment at the time of the incident so as to fall
within the LHWCA. Finding no error, we affirm.
      We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Fabela v. Socorro Indep. Sch. Dist., 329
F.3d 409, 414 (5th Cir. 2003). Summary judgment is appropriate if the record
shows that there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
      To determine borrowed-employee status, we consider nine factors:
      (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?
      (9) Who had the obligation to pay the employee?
Brown v. Union Oil Co. of Cal., 984 F.2d 674, 676 (5th Cir. 1993). Whether
borrowed-employee status exists is a question of law for the district court,
though in some cases factual disputes must be resolved before the district court
can make this determination. See Melancon v. Amoco Prod. Co., 834 F.2d 1238,

                                        2
                                 No. 08-30754

1245 n.13 (5th Cir. 1988).
      Here, the district court found that all factors favor borrowed-employee
status.   While working on the platform Hotard was supervised by David
Hargrave, a Devon employee. Hargrave and another Devon mechanic gave
Hotard a “walk through” orientation to the job when he first arrived. According
to Hotard’s own testimony, he had no contact with Wood Group while on the
platform. Hotard performed Devon’s work. He took instructions from Hargrave
regarding what to work on and where to perform the work. For almost one year
Hotard worked “7 & 7" shifts for Devon, meaning that he worked on the platform
for seven days followed by seven days off. During the seven days he was on the
platform, he worked a twelve hour shift. Devon furnished the workplace,
transportation, food, lodging, and most tools for Hotard, although he brought his
own transportable tools such as hard hats. Devon had the right to discharge
Hotard from employment on its platform, but Devon could not terminate
Hotard’s relationship with Wood Group.        Regarding compensation, Devon
supervisors approved time sheets and paid Wood Group an hourly rate for
Hotard’s work, and Wood Group issued Hotard a check.
      Hotard argues that each factor at least arguably favors his contention that
he was not a borrowed employee. However, our cases indicate that most factors
clearly support borrowed-employee status. The second, sixth, and seventh
factors indisputably indicate that Hotard was Devon’s borrowed employee.
Regarding the remaining factors, the fact that Hotard reported only to a Devon
employee on the platform shows that Devon had control over Hotard and his
work. See Melancon, 834 F.2d at 1245. Considering the length of time that
Hotard worked on Devon’s platform, we can conclude that he acquiesced to his
working conditions. See Brown, 984 F.2d at 678 (finding that one month of work
in new conditions is sufficient to show acquiescence). We do not require total
severance of all connections to show termination of the relationship with the

                                       3
                                  No. 08-30754

original employer; the fact that Hotard had no contact with Wood Group and was
supervised totally by Devon employees while on the platform is sufficient to meet
this factor. See Melancon, 834 F.2d at 1246. Finally, we have held that the
exact structure that existed between Hotard, Devon, and Wood Group regarding
the right to discharge and obligation to pay favors borrowed-employee status.
See id.
      Accordingly, only the third factor—agreement, understanding, or meeting
of the minds between the original and borrowing employer—conceivably
supports Hotard’s contention that he was not a borrowed employee. The district
court found that no evidence exists of an explicit agreement between Devon and
Wood Group regarding Hotard’s status, but that the course of the relationship
between the parties indicates that an agreement existed. Even assuming that
this factor might weigh in Hotard’s favor, the fact that each of the other factors
support borrowed employee status is sufficient show that Hotard was Devon’s
borrowed employee. See Billizon v. Conoco, Inc., 993 F.2d 104, 105-06 (holding
that borrowed-employee status exists where one factor is neutral, one weighs
against borrowed-employee status, and the remaining seven support borrowed-
employee status).
      The district court also held that Hotard was in the course and scope of his
employment with Devon at the time the spider bite occurred. Hotard argues
that this was in error because he was sleeping in his bunk at the time of the
incident, so even if he was a borrowed employee neither the LHWCA nor the
Louisiana Worker’s Compensation Act (“LWCA”) applies.
      The test for whether an employee is within the course and scope of his
employment requires only that the obligations or conditions of employment
create the zone of special danger out of which the injury arose. O’Leary v.
Brown-Pacific-Maxon, Inc., 340 U.S. 504, 506-07 (1951). It is not necessary that
the employee be performing an activity to benefit the employer when the

                                        4
                                 No. 08-30754

incident occurs. Id. To be outside the course and scope of employment, an
employee must “go so far from his employment and become so thoroughly
disconnected from the service of his employer that it would be entirely
unreasonable to say that injuries suffered by him arose out of and in the course
of his employment.” Id. (internal quotation and citation omitted).
      Here, Hotard suffered the spider bite while sleeping on Devon’s platform,
as necessitated by the typical conditions of working offshore. Although he was
not actually at work at the time of the bite, it is not required that he be
performing his duties when the injury occurs. Id. (holding that a worker was in
the course and scope of his employment when he drowned, during his off-duty
hours, while attempting to rescue someone at his employer’s recreational center).
Further, Hotard’s contention that he could have taken a helicopter off the
platform to spend the night elsewhere does not change the fact that he was on
the platform, in the course and scope of his employment, when the incident
occurred. In most workers’ compensation cases there is conceivably something
the employee could have done to avoid the incident, but this does render the
employee outside the course and scope of his employment. Hotard’s job created
a situation that typically involved sleeping on the platform, and he would not
have been bitten by the spider but for his employment with Devon. Therefore,
we conclude that Hotard was within the course and scope of his employment
when the incident occurred, and the LHWCA and LWCA apply.
      For the above reasons, we AFFIRM the district court’s order granting
summary judgment.




                                       5
