UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1449

FRED LADD; LORETTA SUZANNE LADD, 

 Plaintiffs - Appellants, 

 v. 

RESEARCH TRIANGLE INSTITUTE, a/k/a Research Triangle 

Institute International, a North Carolina corporation, 

 Defendant - Appellee. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:06−cv−00399−BO) 

Argued: May 13, 2009 Decided: July 2, 2009 

Before KING, SHEDD, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: David Lee Kofoed, Sr., THE KOFOED LAW FIRM, LLC, 

Centennial, Colorado, for Appellants. Clifton L. Brinson, 

SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, LLP, 

Raleigh, North Carolina, for Appellee. ON BRIEF: Mark A. Ash, 

SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, LLP, 

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Research Triangle Institute (“RTI”) contracted to rebuild 

municipal water and sewage facilities in Iraq following the 2003 

U.S. invasion. RTI obtained Ladd’s services as a civilian 

engineer by contract with his direct employer, Chemonics 

International, Inc. (“Chemonics”). Ladd was injured in Iraq 

while working on a project directed by RTI. He and his wife 

(“the Ladds”) subsequently sued RTI. The district court awarded 

RTI summary judgment and the Ladds appeal. Because the Ladds’ 

suit is barred by the Defense Base Act, 42 U.S.C. § 1651 (“the 

DBA”), we affirm the judgment of the district court. 

I. 

 RTI contracted with the United States Agency for 

International Development (“USAID”) to provide reconstruction 

services in Iraq following the 2003 U.S. invasion. RTI 

subcontracted with Chemonics to recruit qualified personnel. 

Chemonics subsequently recruited and hired Ladd, a civilian 

water and sewer engineer. 

 In October 2003, while traveling from Al Kut, Iraq, to a 

meeting in Noumaniya, Ladd was injured when his vehicle’s left 

front tire blew, causing the vehicle to plunge into a canal. 

Ladd suffered several serious injuries as a result of the 

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accident. Despite several surgeries, Ladd requires ongoing 

physical, mental, and emotional care. 

 In October 2005, the Ladds filed a complaint in the United 

States District Court for the District of Colorado, where they 

lived, alleging that RTI failed to supply vehicles for 

operations in Iraq consistent with those promised during 

orientation; that Ladd’s driver, allegedly an RTI employee, had 

been negligent; and that the vehicle in which Ladd had been 

driven was defective or in poor condition. RTI filed an answer 

in which it denied the Ladds’ claims and raised an affirmative 

defense that the suit was barred under the DBA. RTI also filed 

a motion to dismiss or transfer in which it argued that it was 

not subject to personal jurisdiction in the District of 

Colorado. In September 2006, the District Court for the 

District of Colorado granted RTI’s motion and transferred the 

case to the Eastern District of North Carolina. 

 In August 2007, RTI filed a motion for summary judgment 

arguing, among other things, that Ladd was receiving workers’ 

compensation benefits under the DBA, which constituted his 

exclusive remedy. The district court awarded RTI summary 

judgment, finding that Ladd was a statutory employee of RTI 

under the borrowed servant doctrine and holding that his suit 

was barred under the DBA. The Ladds filed a timely notice of 

appeal and we have jurisdiction under 28 U.S.C. § 1291. 

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II. 

 The Ladds argue that the district court erred in applying 

the borrowed servant doctrine to find Ladd was a statutory 

employee of RTI under the DBA.1 2 This Court reviews an award of 

summary judgment de novo. E.g., Moore v. Williamsburg Reg'l 

Hosp., 560 F.3d 166, 171 (4th Cir. 2009). 

 The DBA provides that “the provisions of the Longshore and 

Harbor Workers’ Compensation Act [33 U.S.C. 901 et seq. (“the 

LHWCA”)] shall apply in respect to the injury or death of any 

employee engaged in any employment . . . under a contract 

 1

 At oral argument, the Ladds argued that the borrowed 

servant doctrine is an affirmative defense which RTI had failed 

to plead in its answer and thereby waived. RTI responded that 

the borrowed servant doctrine is merely a legal theory under 

which the DBA applies to the relationship between Ladd and RTI, 

and that RTI had properly pleaded the DBA as an affirmative 

defense in its answer. RTI also contended the DBA divests the 

district court of subject-matter jurisdiction over the Ladds’ 

claims and questions relating to subject-matter jurisdiction 

cannot be waived. 

We do not address this argument because the Ladds did not 

argue in the district court or on brief that the borrowed 

servant doctrine was an affirmative defense or that RTI had 

waived it through a failure to plead. Accordingly, under the 

well-settled rule in this Circuit, the issue is waived. E.g., 

United States v. Chase, 466 F.3d 310, 314 n.2 (4th Cir. 2006); 

Evans v. Metro. Life Ins. Co., 358 F.3d 307, 311 n.4 (4th Cir. 

2004) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 241 

n.6 (4th Cir. 1999)). 

2

 The Ladds also appeal from the district court’s denial of 

their motion to re-open discovery and designate an expert to 

testify about the condition of the vehicle’s tires. Because we 

affirm the district court’s determination that the DBA bars the 

Ladds’ suit as a matter of law, we do not reach this issue. 

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entered into with the United States . . . where such contract is 

to be performed outside the continental United States . . . .” 

42 U.S.C.A. § 1651(a)(4) (West 2003). In White v. Bethlehem 

Steel Corp., 222 F.3d 146 (4th Cir. 2000), we determined that 

the borrowed servant doctrine applies under the LHWCA to provide 

immunity from suit both to an employee’s general or contract 

employer and to other “employers who ‘borrow’ a servant from” 

that employer. Id. at 149. 

A person can be in the general employ of one company 

while at the same time being in the particular employ 

of another “with all the legal consequences of the new 

relation.” See Standard Oil Co. v. Anderson, 212 U.S. 

215, 220 [(1909)]. In order to determine whether an 

employee is a borrowed servant, courts “must inquire 

whose is the work being performed . . . by 

ascertaining who has the power to control and direct 

the servants in the performance of their work.” Id.

at 221-22. The Supreme Court noted, however, the 

importance of "distinguishing between authoritative 

direction and control, and mere suggestion as to 

details or the necessary cooperation.” Id. at 222. 

 The authority of the borrowing employer does not 

have to extend to every incident of an employeremployee relationship; rather, it need only encompass 

the servant’s performance of the particular work in 

which he is engaged at the time of the accident. See

id. at 220; McCollum v. Smith, 339 F.2d 348, 351 (9th 

Cir. 1964). When the borrowing employer possesses 

this authoritative direction and control over a 

particular act, it in effect becomes the employer. In 

that situation, the only remedy of the employee is 

through the LHWCA.

 . . . . 

 In order to determine direction and control, a 

court may look at factors such as the supervision of 

the employee, the ability to unilaterally reject the 

services of an employee, the payment of wages and 

benefits either directly or by pass-through, or the 

duration of employment. Ultimately, any particular 

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factor only informs the primary inquiry--whether the 

borrowing employer has authoritative direction and 

control over a worker.

Id. (emphasis added). 

 In this case, it is clear that RTI exercised the requisite 

“authoritative direction and control” over Ladd. Ladd’s 

contract with Chemonics expressly stated that, “[w]hile in Iraq, 

[Ladd] will report directly to RTI’s Chief of Party, Peter 

Benedict, or any successor appointed by RTI. Mr. Benedict is 

responsible for monitoring employee performance under the terms 

of the contract.” (J.A. 11.) The contract also provided that 

Ladd’s salary was subject to approval by RTI. The relationship 

between Ladd and RTI was also explored in Ladd’s deposition, 

where he stated that RTI had control over him in Iraq, that RTI 

had the power to have him fired, and that RTI could reassign him 

to different parts of Iraq. 

 In response to RTI’s request for admissions, Ladd admitted 

that “he was required to report directly to RTI’s Chief of Party 

and was to follow the instructions and orders of RTI in the 

performance of his work.” (J.A. 249.) Further, Ladd admitted 

that on the day of the accident “it was RTI that ordered and 

arranged the trip.” Id. Finally, the Ladds admitted RTI’s 

control over Ladd in Iraq in their initial complaint, which 

stated that “Ladd would report directly to RTI, his salary would 

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be dependent upon the approval of RTI, and . . . RTI could amend 

the duties to be performed . . . .” (J.A. 2.) 

 Because the facts clearly show that RTI exercised 

“authoritative direction and control” over Ladd in Iraq, the 

district court did not err in concluding that Ladd was the 

borrowed servant of RTI for the purposes of fulfilling its USAID 

contract there. As a borrowed servant, Ladd was a statutory 

employee of RTI under the LHWCA and the DBA. Accordingly, the 

Ladds’ suit is barred by the DBA as a matter of law and we 

affirm the judgment of the district court. 

AFFIRMED