Case Name: Jorge Gomez Izaguirre v. C & C Marine and Repair, L.L.C., et al.
Date Decided: August 11, 2009
Court: U.S.D.C. Eastern District of Louisiana
Judge: Judge Lemelle
Citation: 2009 WL 2488263 (E.D.La.)
Defendant C & C Marine and Repaid, (“Marine”) filed a motion for summary judgment contending that they are immune to the tort suit filed by plaintiff, Jorge Gomez Izaguirre (“Gomez”).
Did the Court grant Marine’s motion for summary judgment and find, as a matter of law, that they were entitled to immunity from Gomez’s suit because he was a “borrowed” employee at the time of his injury?
Marine contended that Gomez is a longshoreman who is being paid benefits under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and because the LHWCA provides tort immunity to employers, that this Court must hold as a matter of law that Gomez’s claim must fail.
Under the LHWCA, the liability of an employer is exclusive under the Act. That is, unless an employer fails to secure payment of compensation required under the LHWCA then LHWCA provides the exclusive means an employee, as defined under the act, may recover.
Marine argued that Gomez was a “borrowed employee” under the Act and therefore unable to pursue his tort claim.
The Court discussed nine factors to determine whether LHWCA tort immunity is extended in cases where an employer “borrows” the employee of another employer.
(1) Who has control over the employee/work he is performing (2) whose work is being performed (3) whether there was an agreement between the original and borrowed employers, (4) whether the employee acquiesces to the new work situation, (5) whether there was a temporary termination by the general employer of the relationship with the “servant” (6) Who provides the instruments and place for performance of the work (7) whether the employment of the “servant” is for a considerable length of time (8) who had the right to discharge the employee and (9) who had the obligation to pay.
This Court found that Marine had control over Gomez, that he acquiesced to the new work situation, Gomez’s general employer had temporarily terminated their employment with Gomez, and Marine had the obligation to pay.
Accordingly, this Court held that there were genuine issues of material fact whether Gomez was a “borrowed servant” and therefore Marine entitled to immunity.
Marine’s motion for Summary Judgment was denied
Under the LHWCA, an employer ‘s liability to the “employee(s)” is exclusive to the Act. Meaning that the employee may only bring an action under LHWCA to recover for injuries sustained while performing duties of their employment.
If an employee is a “temporary” employee, that is a borrowed servant, then the provisions of the LHWCA will extend to them as well, including the exclusive means of recovery.