Background:
Plaintiff, Tim T. Ngyuen ("Ngyuen"), appealed trial court judgment finding Sundown Energy L.P. not liable for Ngyuen's injuries because it did not operate or control the site in site in question, and that Eland Energy was the borrowing employer of Nguyen and as a result immune from tort liability.

Mr. Ngyuen brought an action under the Longshore Harbor Worker's Compensation Act ("LHWCA") as a result of injuries sustained while performing his duties as a welder on property owned by Sundown Energy L.P.("Sundown").

Ngyuen filed an action pursuant to the LHWCA, because defendant, Weston, did not have coverage for claims filed under the LHWCA, Ngyuen filed a tort action naming Weston, Sundown Eland, and Quality Pipeline and Construction Inc. under 33 U.S.C. §§904 which allows a direct action against an employer when there is no coverage and compensation is not paid.

Defendants filed a motion for summary judgment at trial court, which were granted, and Ngyuen appealed.

Issue:
Did the lower court err in granting defendants' motion for summary judgment?

Held:
The first issue decided on appeal is whether borrowed servant status is applicable under both the LWCA and LHWCA. Ngyuen argued that summary judgment is premature because it has yet to be determined if he can recover workers' compensation pursuant to the LHWCA.

Eland and Sundown argued that it didn't matter which compensation Act applied because the issues of liability are the same and use the same criteria regardless. Accordingly whether Ngyuen's claims arise under workers' compensation or the LHWCA is not a material fact precluding summary judgment.

This Court considered whether Ngyuen was a borrowed employee by Eland and thus, immune from tort liability.

The deposition of Weston asserted that he hired Nguye to perform welding services but an Eland employee directly supervised and had authority to issue instruction to Weston employees. Also, Nguyen performed work on Eland's facility. Moreover, Eland agreed to operate and maintain the premises Nguyen performed the work. Nguyen also testified that Eland employees gave the bulk of the supervision and direction at the site, which all support a finding of borrowed employee.

Accordingly, this Court found no genuine issue of material fact whether Nguyen was a borrowed employee and thus, affirmed the ruling of the district Court.

Comment:
To determine whether an employee is a "borrowed servant" the courts examine several factors. The factors include (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 between the original and 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 the 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?

These factors, all balanced together determine whether en employee is "borrowed" for purposes of employer liability.

Steve Gordon
http://www.offshoreinjuries.com