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

                                                 FILED
                                                                           August 13, 2009
                                     No. 08-20826
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

GARY JACKSON

                                                   Plaintiff-Appellant

v.

TOTAL E&P USA, INC.

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:08-CR-385




Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
EDITH H. JONES, Chief Judge:1
       Gary Jackson (“Jackson”) was injured while working aboard an offshore
oil production platform. Because we find that he was a “borrowed employee”
under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),
33 U.S.C. § 905(a), we affirm the district court’s grant of summary judgment and
find that suit against Total E&P USA (“Total”) is barred.



       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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-20826

                              I. BACKGROUND
      Jackson was hired as a mechanic by Producers Assistance Corporation
(“PAC”) in January 2007. Jackson was immediately assigned to work on Total’s
Virgo platform.
      For the next seven months, Jackson worked rotating 14-day hitches.
While on the platform, Total provided Jackson with sleeping and bathing
facilities in permanent quarters, three meals a day, and a Total uniform bearing
his name. Jackson would bring some of his own tools and be provided some
specialized tools by Total.
      Jackson was the only mechanic onboard.           He would receive his
assignments through Total’s computer system, which automatically created a
list of preventative maintenance tasks that needed to be performed. No Total
employee oversaw Jackson’s work. Rather, Jackson was directed to use his
judgment and experience to determine if the computer printout was accurate
and, if accurate, which tasks should be completed during a given hitch. Jackson
reported his hours to PAC and was paid by PAC.
      On September 14, 2007, Jackson was working alongside Total employees
in an effort to pull up a large pump from a lower deck. The pump was being
pulled by a cable, which was attached to the pump by cable straps. During this
process, a strap broke, causing the cable to strike Jackson’s legs and throwing
him onto his neck and back.
      Jackson filed for worker’s compensation and was awarded benefits under
the LHWCA from PAC and filed this suit against Total for negligence. The
district court granted Total’s motion for summary judgment, finding that
Jackson was a borrowed employee without tort remedies. Jackson appeals.
                              II. DISCUSSION
      We review a district court's grant of summary judgment de novo, applying
the same standards as the district court. See Hoda v. Rowan Cos., Inc., 419 F.3d
379 (5th Cir. 2005). Summary judgment is appropriate if the record shows that

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there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law. F ED. R. C IV. P. 56(c).
      Worker’s compensation under the LHWCA is the exclusive remedy for an
employee against his employer because the Act bars all common law tort actions
against the employer. See Alday v. Patterson Truck Line, Inc., 750 F.2d 375 (5th
Cir. 1985). If Jackson was the functional employee of Total at the time of his
injury, he may only recover under the LHWCA and his negligence suit must be
dismissed.
      Whether Jackson was acting as an employee of Total is addressed under
the “borrowed employee” doctrine. This doctrine was established to hold a
borrowing employer liable under respondeat superior for the negligence of any
employee he had borrowed.       See Standard Oil v. Anderson, 212 U.S. 215,
29 S. Ct. 252 (1909). Since Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969),
this court has employed this doctrine to shield employers from tort liability from
their borrowed employees under LHWCA. The doctrine “is the functional rule
that places the risk of a worker’s injury on his actual rather than his nominal
employer.” Hall v. Diamond M Co., 732 F.2d 1246 (5th Cir. 1984).
      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; and (9) who had the obligation to pay the employee.
Brown v. Union Oil Co. of Cal., 984 F.2d 674, 676 (5th Cir. 1993). Although no
one of these factors is decisive, we have stated that “the central question in
borrowed servant cases is whether someone has the power to control and direct

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another person in the performance of his work.” Hebron v. Union Oil Co. of
California, 634 F.2d 245, 247 (5th Cir. 1981).
      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, 1245 n.13 (5th Cir. 1988). The district court found that “[f]or all
purposes, Jackson was a Total employee at the time of the accident.”
      After reviewing the record, we agree with the district court. Jackson was
the definition of a “borrowed employee.” Of the factors listed in Brown, (1), (2),
(4), (6), and (7) all support this finding and the other factors are, for the most
part, neutral to it.
      Under these facts, PAC was essentially operating as a placement agency.
PAC did not create the environment in which Jackson worked, and it was not
responsible for Jackson’s working conditions. Jackson received his pay check
from PAC, but all of his work was directed by and for the benefit of Total.
Despite Jackson’s attempt to rely on any contractual provisions at issue, parties
“cannot automatically prevent a legal status like ‘borrowed employee’ from
arising merely by saying in a provision in their contract that it cannot arise.” Id.
at 1245.
      Obviously, PAC did not relinquish all connection with Jackson. The first
factor concerning control “does not require a lending employer to sever
completely its relationship with the employee, because such a requirement
would effectively eliminate the ‘borrowed employee’ doctrine.”         Id. at 1246
(quoting Capps v. N.L. Baroid-NL Industries, 784 F.2d 615, 617-18 (5th Cir.
1986)). Rather, the court must focus on “the lending employer’s relationship
with the employee while the borrowing occurs.” Id. Here, as in Melancon, PAC’s
control over Jackson was nominal at most while Jackson worked for Total.
      Indeed, Total provided Jackson with work assignments through Total’s
computer system to be performed on Total’s platform and equipment. Jackson

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clearly acquiesced to the situation. He was aware of his work conditions and
chose to continue working in them. See Brown v. Union Oil Co., 984 F.2d 674,
678 (5th Cir.1993) (finding that an employee had acquiesced after one month of
working prior to an accident). Jackson brought coveralls and some small tools,
but Total provided many tools and ordered specialized tools requested by
Jackson. Total also provided Jackson with food, sleeping quarters, bathing
facilities, petty cash for shoe purchases, and a Total uniform with his name on
it. Finally, we note that this work situation continued for eight months, which
we believe to be a considerable length of time.
      In sum, we find that the Brown factors compel the conclusion that Jackson
was a borrowed employee under the LHWCA.
                             III. CONCLUSION
      For the foregoing reasons, the judgment is AFFIRMED.




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