Shedrick POWELL v. DeHyCO, INC., 815 So. 2d 1032

I,DECUIR, Judge. Shedrick Powell filed this suit for damages against DeHyCo, Inc. after sustaining injuries while loading drill pipe onto a vessel. The Louisiana Worker’s Compensation Corporation intervened in the suit, seeking reimbursement of benefits paid to Powell. Finding Powell to be the borrowed servant of DeHyCo under the Long-shore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., the trial court held that DeHyCo was immune from tort liability and dismissed Powell’s suit. Powell and LWCC now appeal; for the following reasons, we affirm.

Powell was regularly employed by Trus-sco, Inc., a vessel cleaning service. At times when Trussco did not have enough work for its employees, the employees would be available to work for DeHyCo, an oilfield service company in the business of loading and unloading vessels. Powell was working for DeHyCo under these circumstances when he was injured due to the negligence of a DeHyCo crane operator. This was a factual finding made by the trial court and is not at issue in this appeal. Powell received workers’ compensation benefits under § 904(

a) of the LHWCA from Trussco; he did not assert a claim for benefits against DeHyCo. Also not at issue in this appeal is the trial court’s conclusion that Powell was the borrowed employee of DeHyCo at the time of his accident. In its reasons for judgment, the trial court reviewed the facts and determined that the circumstances of Powell’s job with DeHyCo rendered him DeHyCo’s borrowed employee under the LHWCA and its interpretive case law, i.e., Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969). Accordingly, under § 905(

a) of the LHWCA, the trial court held that, because Powell was a borrowed employee, DeHyCo, the borrowing employer, was immune from tort liability for the negligence of its employee. This decision was based on

Section 905(a), which provides that the LHWCA shall be the employee’s exclusive remedy against his employer. The liability of the employer under the |PLHWCA is exclusive and in place of all other liability, except that if the employer fails to secure payment of compensation as required, the injured employee may elect either to claim compensation as provided by the Act or to maintain an action at law. 33 U.S.C. § 905(a). On appeal, Powell and the LWCC argue that DeHyCo is not immune from tort liability as the borrowing employer because DeHyCo did not pay Powell’s workers’ compensation benefits.

In support of this contention, they cite language from Judge Tate’s concurring opinion in West v. Kerr-McGee Corp., 765 F.2d 526 (5th Cir. 1985). Judge Tate indicated that, in his view, the only employer who is immune from tort liability is the employer who has actually paid LHWCA benefits. The appellants suggest that the language of the LHWCA supports this opinion, but they offer no judicial authority for their position.

Powell and the LWCC argue that the federal courts have judicially created tort immunity for general contractors under the borrowed servant doctrine, and this result is contrary to the language of the LHWCA. DeHyCo has cited federal cases which uphold the tort liability immunity to a borrowing employer and specifically repudiate Judge Tate’s concurring comments in West. See Total Marine Servs., Inc. v. Director, Office of Worker’s Comp. Program, 87 F.3d 774, 778 (5th Cir.1996); Temporary Employment Servs. v. Trinity Marine Group, 261 F.3d 456 (5th Cir. 2001).

These cases hold that the only liability assessed against a borrowing employer is for reimbursement of the compensation benefits paid to or on behalf of its borrowed employee. DeHyCo admits, therefore, that it is responsible for reimbursing Trussco for the LHWCA benefits that Trussco paid to Powell. We agree with the trial court’s decision to uphold the tort immunity provision of the LHWCA. The consistent federal jurisprudence on the issue presented herein | .¡persuades us that the trial court’s holding was correct.

We disagree with the suggestion that only the employer who has actually paid compensation benefits pursuant to the LHWCA is entitled to tort immunity. For these reasons, the judgment rendered below is affirmed, and costs of this appeal are assessed to the appellants. AFFIRMED. SAUNDERS, J., dissents and assigns reasons.