# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

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**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

**. P**  **ER C**  **URIAM :**  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 d efendant 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 ClerkNo. 19

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2 Defendants (including Fieldwood ) because it found that Raicevic was Fieldwood’s borrowed employee, and thus the **LHWCA** ’s exclusive

remedy provision gave Fieldwood tort immunity

. Because we agree that the **LHWCA** was Raicevic’s exclusive remedy , w e 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 tryin g 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, t he jury found that Fieldwood and Raicevi c were each 50% responsible for Raicevic’s injuries. The jury also made special findings about the factor s that a court weighs to decide borrowed employee status. ButNo. 19

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3 because of the motion in limine, the jury made no findings about any other issues related to Fieldwood’s **LHWCA** defense

. A fter trial, but before entering judgment, the district court requested f urther briefing on Fieldwood’s **LHWCA** defense. The post

- trial briefing focuse d 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, “ w hile 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 emp loyee. See Billizon v. Conoco, Inc. , 993 F.2d 104, 105 (5th Cir. 1993)

. And we review for clear error
t he key factual finding: that Fieldwood secured benefits under the **LHWCA**

. **III**
Under the Outer Continental Shelf Lands Act , an employee’s exclusive remed y 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 ofNo. 19

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4 compensation” under the **LHWCA**

. 33 U.S.C. § 905(a). Raicevic argues that Fieldwood can not satisfy either requirement.
**A** Turning first to the question of Raicevic’s employer, Fieldwood must show that Raicevic was its borrowed employee in o rder to have t ort immunity under the **LHWCA**

. Melancon v. Amoco Prod. Co. , 834 F.2d 1238, 1243 (5th Cir.), amended on reh ’ g in part sub nom. M elancon 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. W ho had control over the employee and the work he was performing, beyond mere suggestion of details or cooperation ? 2. W hose work was being performed ? 3. W as there an agreement, un derstanding, or meeting of the minds between the original and the borrowing employer ? 4. D id the employee acquiesce in the new work situation ? 5. D id the original employer terminate his relationship with the employee? 6. W ho furnished tools and place for performanc e ? 7. W as the new employment over a considerable length of time? 8. W ho had the right to discharge the employee ? 9. W ho 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 the se nine questions to the ju ry. And the parties acknowledge that the jury’s findings do not point uniformly in oneNo. 19

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5 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, p articularly in the **LHWCA** context, is a complex question of law. Gaudet v. Exxon Corp. , 562 F.2d 351, 358 (5th C ir. 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 respondeat

superior context. See Gaudet , 562 F.2d at 356

. But i n 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 f or 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 t he employee has consented (implicitly or explicitly) to this statutory trade

- off.No. 19

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6 With that focus in mind, w e now briefly review the nine factors

. And

w e conclude that Raicevic was Fieldwood’s borrowed employee, although we do so for reasons somewhat diffe rent 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 h is injury

— favors Raicevic (no borrowed

- employee status). For the remaining factors, the re is considerable dispute about the implications we should draw from t he jury’s findings.
Factor One. The jury found that Fieldwood did not have control over Raicevic’s work beyond mere ly suggesti ng 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 Corp oration stated that factors 4

– 7 were “ most pertinent when the borrowed employee doct rine 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 fa cts of the case, no factor can be categorically excluded from the analysis.No. 19

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7 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 hi s 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** co ntext, 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 employe e 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

- e mployee 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 au tomatically 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 independent

contractor provision. Id

. And w e have previously found an independent

contractor 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 employe r
. Melancon , 8 34 F.2d at 1245

. The jury’s finding that there was a contract says nothing about whether the parties modified or waived that contract

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8 Here, there is evidence that Raicevic took instructions from and was supervised by Fieldwood employees. Raicevic admitted that he had to follow Fieldwood’s i nstructions 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 w hether the parties modified the contract, we hold that t h e 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 b orrowed

- 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, tha t 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 t ime

. But in the **LHWCA** context, one year seems long enough to accept the risks of th e job and consent to the statutory trade

- off of receiving benefits in lieu of the possibility of winning a tort suit. Thus, this factor tilt s in Fieldwood’s favor (borrowed

- employee status)

. Factors Eight and Nine. The jury found that Fieldwood did not hav e 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 context s
. 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.No. 19

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9 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 Raicev ic. The more helpful question is : W here 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 favor s Raicevic. We therefore agree with the district court that Raicevic was Fieldwood’s borrowed employe e , 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,
77 8 (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, w e review the district court’s factual finding for clear error. Heck v. Triche , 775 F. 3 d 265, 282 (5th Cir. 2014).No. 19

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10 Raicevic argues that the question is not just whether Fieldwood had **LHWCA** insurance, but whether any employer (Waukesha Pearce o r Fieldwood) paid Raicevic benefits specifically und er 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 defe nse , 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 emplo yer 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** insu rance at the time of Raicevic’s injury. That isNo. 19

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11 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 wor kers’ 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 thes e 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 , f rom considering the post

- trial e vidence and briefing. The district court committed no error.
**I V** 
Because we find that Fieldwood has tort immunity , th e 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 t hat 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).