United States Court of Appeals

for the Fifth Circuit

No. 19-40580

Milorad Raicevic, 

Plaintiff—Appellant,

versus

Fieldwood Energy, L.L.C.; Shamrock Management, 

L.L.C., doing business as Shamrock Energy Solutions, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:15-CV-327 

Before Smith, Willett, and Duncan, Circuit Judges.

PER CURIAM:

After injuring his back while working on Fieldwood Energy’s offshore 

platform, Milorad Raicevic sued Fieldwood (and the platform operators) for 

negligence. The jury found that Fieldwood was the only defendant that was 

negligent, attributing 50% of the responsibility to the company. The jury 

attributed the other 50% to Raicevic. After trial, and before entering 

judgment, the district court requested further briefing on Fieldwood’s 

defense under the exclusive-remedy provision of the Longshore and Harbor 

Workers’ Compensation Act. The district court entered judgment for

United States Court of Appeals

Fifth Circuit

FILED

October 28, 2020

Lyle W. Cayce

Clerk
No. 19-40580

2

Defendants (including Fieldwood) because it found that Raicevic was 

Fieldwood’s borrowed employee, and thus the LHWCA’s exclusiveremedy provision gave Fieldwood tort immunity. Because we agree that the 

LHWCA was Raicevic’s exclusive remedy, we affirm.

I

Waukesha Pearce Industries, Inc. (not a defendant in this case) 

employed Raicevic as an offshore platform mechanic beginning in 2008. 

While still employed by Waukesha Pearce, Raicevic worked on Fieldwood’s 

offshore platform located on the outer continental shelf in the Gulf of 

Mexico. Almost a year into working (and sleeping) on Fieldwood’s platform, 

Raicevic awoke after midnight to an alarm blaring in the mechanic’s room. 

Raicevic slipped and fell twice, due to oil that had leaked on the floor, while 

trying to address the mechanical issue that triggered the alarm. 

Raicevic suffered back injuries that necessitated various treatments, 

including surgery, physical therapy, and steroid injections. Raicevic received 

coverage for these treatments through Waukesha Pearce’s workers’ 

compensation benefits, but it is unclear whether the benefits came from state 

plans or the LHWCA. 

Raicevic sued Fieldwood and the platform operators for negligence.

Fieldwood countered that Raicevic was its borrowed employee, so various

workers’ compensation schemes, including the LHWCA, precluded 

Raicevic’s tort claim. Raicivec filed a motion in limine to bar any discussion 

of workers’ compensation insurance at trial, and the district court granted 

the motion. 

At trial, the jury found that Fieldwood and Raicevic were each 50% 

responsible for Raicevic’s injuries. The jury also made special findings about 

the factors that a court weighs to decide borrowed employee status. But 
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because of the motion in limine, the jury made no findings about any other 

issues related to Fieldwood’s LHWCA defense. 

After trial, but before entering judgment, the district court requested 

further briefing on Fieldwood’s LHWCA defense. The post-trial briefing 

focused on two necessary conditions for the LHWCA to apply and thus bar

Raicevic’s negligence claim: (1) Was Raicevic Fieldwood’s borrowed 

employee? and (2) Did Fieldwood secure workers’ compensation benefits 

under the LHWCA? Considering the jury’s findings on the factors of 

borrowed-employee status and the post-trial briefing, the district court 

concluded that both conditions were met. Accordingly, the court rendered 

judgment for all defendants because the LHWCA gave Fieldwood tort 

immunity, and the jury found that the other defendants were not negligent. 

Raicevic now appeals, challenging the district court’s two findings on the 

LHWCA defense.

II

After a trial, we review questions of law de novo, “while questions of 

fact are reviewed for clear error.” Anne Harding v. Cty. of Dallas, 948 F.3d 

302, 306–07 (5th Cir. 2020). So here, we review anew the core legal question: 

whether Raicevic was Fieldwood’s borrowed employee. See Billizon v. 

Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993). And we review for clear error 

the key factual finding: that Fieldwood secured benefits under the LHWCA. 

III

Under the Outer Continental Shelf Lands Act, an employee’s 

exclusive remedy for a work-related injury is the LHWCA. 43 U.S.C. 

§ 1333(a)(1) and (b); 33 U.S.C. § 905(a). This means that, if applicable, the 

LHWCA would preclude a tort action like Raicevic’s. But this exclusivity 

provision only applies to (1) employers who (2) “secure payment of 
No. 19-40580

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compensation” under the LHWCA. 33 U.S.C. § 905(a). Raicevic argues 

that Fieldwood cannot satisfy either requirement.

A

Turning first to the question of Raicevic’s employer, Fieldwood must 

show that Raicevic was its borrowed employee in order to have tort immunity 

under the LHWCA. Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1243 (5th 

Cir.), amended on reh’g in part sub nom. Melancon v. Amoco Prods. Co., 841 F.2d 

572 (5th Cir. 1988). To determine whether an employee is a “borrowed 

employee,” we consider the nine factors articulated in Ruiz v. Shell Oil 

Company:

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?

413 F.2d 310 (5th Cir. 1969); see also Melancon, 834 F.2d at 1244.

These nine factual inquiries underlie borrowed-employee status, but 

the ultimate determination of whether an employee is a borrowed employee 

is a question of law for the court to decide. Melancon, 834 F.2d at 1244.

The district court submitted these nine questions to the jury. And the 

parties acknowledge that the jury’s findings do not point uniformly in one 
No. 19-40580

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direction. After considering the jury’s findings and the parties’ post-trial 

briefing on the issue, the district court determined that Raicevic was 

Fieldwood’s borrowed employee. Raicevic now challenges that

determination; he does not challenge the jury’s factual findings.

Determining borrowed-employee status, particularly in the LHWCA

context, is a complex question of law. Gaudet v. Exxon Corp., 562 F.2d 351, 

358 (5th Cir. 1977). A court must consider not only the nine factors, “but the 

implications to be drawn from” them. Id. And “in different cases, [] certain 

of these factors may be more important than others, at least in the light of the 

facts [] before the court.” Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 

376 (5th Cir. 1985). 

Further, we originally created the nine-factor test in the respondeatsuperior context. See Gaudet, 562 F.2d at 356. But in the LHWCA context, 

the test is not used to impute liability but “to escape it through the exclusive 

remedy provisions.” Id. As we have explained:

Although the coverage of the LHWCA is not contractual and 

does not depend upon the consent of the parties, nonetheless 

when an employee begins work for an employer under the 

coverage of the LHWCA, he is presumed to have consented 

to the Act’s trade-off of possibly large common law damages 

for smaller but certain LHWCA benefits. And by the very act 

of continuing in employment, he may be assumed to agree that, 

considering the likelihood of injury and the likely severity of 

injury within the working conditions he experiences, the 

benefits offered by the LHWCA in the event of injury are 

acceptable.

Id. So in assessing the nine factors, we focus on whether the employee has 

consented (implicitly or explicitly) to this statutory trade-off.
No. 19-40580

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With that focus in mind, we now briefly review the nine factors. And 

we conclude that Raicevic was Fieldwood’s borrowed employee, although we 

do so for reasons somewhat different from those given by the district court.1

We start with the easier factors in this case. The jury’s findings as to 

factors 2, 4, and 6—that Raicevic was performing Fieldwood’s work, 

Raicevic acquiesced in the work situation, and Fieldwood provided the tools 

and place of work—clearly favor Fieldwood (borrowed-employee status).

But the jury’s finding as to factor 5—that Waukesha Pearce did not terminate 

its relationship with Raicevic prior to his injury—favors Raicevic (no 

borrowed-employee status).

For the remaining factors, there is considerable dispute about the 

implications we should draw from the jury’s findings.

Factor One. The jury found that Fieldwood did not have control over 

Raicevic’s work beyond merely suggesting details. Raicevic argues that the 

1 While the district court came to the correct conclusion, it did so via an improper

interpretation of our cases. The court gave a thorough overview of our caselaw discussing 

how to weigh the nine factors and noted that our decision in Gaudet v. Exxon Corporation

stated that factors 4–7 were “most pertinent when the borrowed employee doctrine is used 

as a defense to common law liability in the LHWCA context.” 562 F.2d at 357. So far so 

good. But then, the district court analyzed only those four factors, claiming that the other 

five factors were not “essential” and treating them as if they were completely disposable. 

Gaudet does not support this nor, as Raicevic points out, do the cases that followed. In 

Gaudet, we said that looking at factors 4–7 was a “suggested focus within” the nine-factor 

test. Gaudet, 562 F.2d at 359. And since Gaudet, we have repeatedly stated that out of the 

nine factors, no single factor or combination of them is determinative. Brown v. Union Oil 

Co., 984 F.2d 674, 676 (5th Cir. 1993); Fontenot v. Mobil Oil Expl. & Producing Se., Inc., 997 

F.2d 881 (5th Cir. 1993) (per curiam) (stating that Gaudet’s holding was that the nine 

“factors are to be weighed as appropriate in each particular case”); Mosley v. Wood Grp. 

PSN, Inc., 760 F. App’x 352, 359 n.8 (5th Cir. 2019) (per curiam). We have also said that 

“in many of our prior cases,” the first of the nine factors—who controlled the employee’s 

work—was “central” to the analysis even though Gaudet “deemphasized” this factor. 

Brown, 984 F.2d at 676. While determining how to weigh the nine factors will depend on 

the facts of the case, no factor can be categorically excluded from the analysis.
No. 19-40580

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jury’s finding should weigh in his favor because Waukesha Pearce, not 

Fieldwood, told him to work on Fieldwood’s platform; no one from 

Fieldwood told him exactly how to do the repairs; and his direct supervisor 

was a Waukesha Pearce field service manager. Fieldwood, on the other hand, 

argues that it told Raicevic what to inspect on the platform, and when and

where to conduct those inspections; two Fieldwood employees supervised 

Raicevic—Raicevic even claimed that one was the “best boss” he ever had; 

and the Waukesha Pearce supervisor was never on Fieldwood’s platform and 

didn’t provide any guidance as to Raicevic’s actual work for Fieldwood. 

In the LHWCA context, we have previously rejected the arguments 

Raicevic makes and held that the arguments Fieldwood makes indicate

borrowed-employee status. See, e.g., Melancon, 834 F.2d at 1245 (holding that 

control factor favored borrowed-employee status where employee took 

orders from borrowed employer about what work to do and when and where 

to do it). We thus conclude that the jury’s finding—that Fieldwood didn’t 

control Raicevic—does not preclude, or even necessarily weigh against,

borrowed-employee status.

Factor Three. The jury found, and no one disputes, that Waukesha 

Pearce and Fieldwood had a written agreement that said Raicevic was an 

independent contractor, not Fieldwood’s employee. But even Raicevic 

acknowledges that this type of contract “does not automatically prevent 

borrowed employee status.” Brown v. Union Oil Co., 984 F.2d 674, 677–78

(5th Cir. 1993). The parties’ actions can waive or modify an independentcontractor provision. Id. And we have previously found an independentcontractor agreement modified by the parties’ behavior when there is

evidence showing that all parties understood that the employee “would be 

taking his instructions from” the borrowed employer. Melancon, 834 F.2d at 

1245. The jury’s finding that there was a contract says nothing about whether 

the parties modified or waived that contract.
No. 19-40580

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Here, there is evidence that Raicevic took instructions from and was 

supervised by Fieldwood employees. Raicevic admitted that he had to follow 

Fieldwood’s instructions and get Fieldwood’s permission for major repairs. 

Raicevic counters only that the contract itself is clear, and that the jury’s 

finding that Fieldwood didn’t control Raicevic suggests that there was no 

waiver or modification. Without deciding whether the parties modified the 

contract, we hold that the evidence demonstrating Fieldwood’s supervision 

of and instruction to Raicevic is enough to make this factor neutral. In other 

words, the existence of the contract does not counsel against finding 

borrowed-employee status. 

Factor Seven. We have often found that the length of the new 

employment is a neutral factor unless the new employment lasted for years. 

If it did, that favors borrowed-employee status. Mays v. Dir., Office of 

Workers’ Comp. Programs, 938 F.3d 637, 646 (5th Cir. 2019) (collecting 

cases). The jury found that Raicevic’s one year on the Fieldwood platform 

was not a “considerable” length of time. But in the LHWCA context, one 

year seems long enough to accept the risks of the job and consent to the 

statutory trade-off of receiving benefits in lieu of the possibility of winning a 

tort suit. Thus, this factor tilts in Fieldwood’s favor (borrowed-employee 

status).

Factors Eight and Nine. The jury found that Fieldwood did not have 

the right to discharge or the obligation to pay Raicevic, suggesting that these 

last two factors weigh in favor of no borrowed-employee status. But as 

Fieldwood points out, we weigh these factors differently in the LHWCA and 

respondeat-superior contexts. 

As to the right to discharge—factor eight—the focus is on whether 

Fieldwood had the right to “terminate [Raicevic’s] services” for Fieldwood, 

not whether it had the right to terminate his employment in general. Capps v. 
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N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 618 (5th Cir. 1986). Because 

Fieldwood had the right to remove Raicevic from working on its platform at 

any time, factor eight favors borrowed-employee status. 

The obligation to pay—factor nine—does not focus on who paid 

Raicevic. The more helpful question is: Where did the funds originally come 

from? Id. Here, Fieldwood paid Waukesha Pearce for Raicevic’s work, then 

Waukesha Pearce paid Raicevic. That is enough to skew the factor in 

Fieldwood’s favor. See Melancon, 834 F.2d at 1246.

All in all, only one factor (five) plainly favors Raicevic. We therefore 

agree with the district court that Raicevic was Fieldwood’s borrowed 

employee, meaning Fieldwood can invoke the LHWCA as a bar to 

Raicevic’s tort claim unless any exceptions apply. 

B

One exception to LHWCA tort immunity is relevant here. Raicevic’s 

tort claim is not barred if Fieldwood “fail[ed] to secure payment of 

compensation as required by” the LHWCA. 33 U.S.C. § 905(a); Total 

Marine Servs., Inc. v. Dir., Office of Worker’s Comp. Programs, 87 F.3d 774, 

778 (5th Cir. 1996). The parties did not submit this issue to the jury, so the 

district court made a fact finding under Federal Rule of Civil Procedure 

49(a)(3). See also Taherzadeh v. Clements, 781 F.2d 1093, 1100 (5th Cir. 1986) 

(“In the absence of a demand by the parties that an issue be submitted, and 

if such issue is omitted, [Rule 49(a)] allows the Court to make its own 

findings on the omitted issue.”).

The district court found that Fieldwood had LHWCA workers’ 

compensation insurance at the time of Raicevic’s injury, and therefore 

Fieldwood could invoke the LHWCA as a bar to Raicevic’s tort claim. As 

noted above, we review the district court’s factual finding for clear error. 

Heck v. Triche, 775 F.3d 265, 282 (5th Cir. 2014).
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Raicevic argues that the question is not just whether Fieldwood had 

LHWCA insurance, but whether any employer (Waukesha Pearce or

Fieldwood) paid Raicevic benefits specifically under the LHWCA. Raicevic 

also says that the district court erred because the post-trial evidence 

Fieldwood submitted on the issue was untimely. Both arguments fail.

We have never directly addressed Raicevic’s first argument—that to 

invoke the LHWCA as a defense, an employer must prove not just that it

had LHWCA insurance, but that it paid benefits under that insurance to the

employee. As the language of the LHWCA and our cases show, that 

standard is too demanding. In Thibodeaux v. J. Ray McDermott & Company, 

the employee argued that the employer failed to “secure payment of 

compensation” because it did not properly post the required notice about the 

LHWCA. 276 F.2d 42, 46 (5th Cir. 1960). We held that even assuming the 

notice was inadequate, the employer had purchased LHWCA insurance, 

and that’s all it needed to do to “secure payment.” Id. The statute contains 

specific provisions about “how and in what manner an employer shall comply 

with the obligation to secure payment of compensation.” Id. In other words, 

the statute makes clear what it means to “secure payment”—buy insurance 

or receive approval to pay compensation benefits directly. 33 U.S.C. § 932(a). 

See also Melancon, 834 F.2d at 1247 n.17 (“There is no requirement that tort 

immunity under § 905(a) attaches only to an employer who actually pays for 

his employees’ worker’s compensation (i.e. the premiums for the worker’s 

compensation insurance coverage).”).

Here, the evidence showed that both Fieldwood and Waukesha 

Pearce had LHWCA insurance at the time of Raicevic’s injury. That is 
No. 19-40580

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enough for Fieldwood to invoke the LHWCA’s exclusive-recovery 

provision.2

Finally, the district court’s consideration of Fieldwood’s post-trial 

evidence was proper. The parties did not submit the issue of workers’ 

compensation insurance to the jury. In fact, Raicevic filed a motion in limine, 

which the district court granted, to bar any discussion of workers’ 

compensation insurance at trial. So after trial, the district court asked for 

further briefing on these issues, and Fieldwood submitted an affidavit with 

its briefing to prove it had LHWCA insurance at the time of Raicevic’s 

injury. Raicevic points to no cases that would prohibit the court, as the 

factfinder on this issue, from considering the post-trial evidence and briefing.

The district court committed no error.

IV

Because we find that Fieldwood has tort immunity, the district court 

correctly entered judgment for the Defendants. We AFFIRM.

2 It appears that just two district courts have addressed this issue, and both have 

found that securing payment means only obtaining LHWCA insurance. Birkenbach v. 

Nat’l Gypsum Co., No. 13-14607, 2014 WL 2931795, at *5 (E.D. Mich. June 30, 2014); In re 

Natures Way Marine, LLC, 984 F. Supp. 2d 1231, 1243 (S.D. Ala. 2013). “The LHWCA 

provides that the employer must secure payment of compensation, and binding case law 

explains this as the long-range method whereby the employer satisfies the Department of 

Labor that it can, that is, it has the potential, to pay compensation payments when/if 

required to do so under the Act. The LHWCA does not place any additional burden on 

the employer to immediately and actually make compensation payments to individual 

injured employees.” See In re Natures Way Marine, 984 F. Supp. 2d at 1243 (emphasis in 

original).