Lewis et al v. Legion Rig Services LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
JUSTIN LEWIS and TRINITY LEWIS,
Plaintiffs,
vs. 	Case No. 21-CV-160-NDF
LEGION RIG SERVICES, LLC;
ENTREC CRANES AND HEAVY
HAUL, INC., and HELMERICH &
PAYNE INTERNATIONAL DRILLING
COMPANY,
Defendants.
ORDER GRANTING LEGION RIG SERVICES, LLC’S
MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the Motion for Summary Judgment by Defendant
Legion Rig Services, LLC (“Legion”). ECF 124; ECF 125. Plaintiffs have responded.
ECF 129. Defendant Legion submitted additional facts and legal authorities. ECF 135. 1
The parties presented their oral arguments on June 15, 2023.
Following completion of an oilwell, Defendant Legion was employed as an
independent contractor to move the drilling rig to a new location. One of Legion’s tasks
was to break down and load a centrifuge and centrifuge stand owned by DCT Energy
Services (“DCT”). 2 	Legion employed Defendant Entrec Cranes and Heavy Haul, Inc.
1 The Court does not consider Legion’s additional facts and legal authorities for resolution of the pending motion.
2 DCT was another independent contractor employed by the well operator to provide solids control and waste
management services during drilling.
10:28 am, 6/21/23
FILED
Margaret Botkins
Clerk of Court
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(Entrec) as an independent contractor to provide the necessary crane services for the rig
move. Unfortunately, Plaintiff Justin Lewis, a DCT employee, was seriously injured when
the centrifuge stand was lowered by the crane operator into the centrifuge area when Mr.
Lewis was in the area securing a catwalk.
Plaintiffs sued Legion based on one of two exceptions 3 to the general rule that the
employer of an independent contractor is not liable for harm caused to another by the
actions or omissions of the contractor or its employees. Viewing the evidence and
inferences in the light most favorable to Plaintiffs, the Court concludes the exception does
not apply because there is insufficient evidence on which a jury could reasonably find that
Legion retained control over the operative detail of any part of Entrec’s crane services.
Consequently, Plaintiffs have failed to show a legal duty owed by Legion to Plaintiffs.
Therefore, Legion’s motion for summary judgment is GRANTED.
I. Facts
Based on the submissions and the record, the Court finds the following facts in the
light most favorable to Plaintiffs:
The present dispute arises from an accident that occurred on the H&P 520 rig near
Wright, Wyoming on January 4, 2019. ECF 129, p. 2. After the well was completed, H&P
employed Legion to break down the H&P rig and associated equipment and transport it to
its next location. Id. Part of the equipment associated with the rig was a centrifuge and
3 Plaintiffs concede that Legion is not liable for the actions of its subcontractor Entrec under a vicarious liability
theory but argue that Legion is liable under a negligence theory. ECF 129, p. 16; ECF 40, p. 11.
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centrifuge stand, both of which were owned by DCT, who employed Mr. Lewis. ECF 129,
pp. 2 & 27-28; Pls.’ Ex. 4. 24:20-25:1.
To move the rig, the centrifuge and centrifuge stand need to be loaded onto trucks
for transport. ECF 129, p. 2. Legion retained Entrec to provide the necessary crane services.
Id. at 2-3.
Legion’s Health, Safety, and Environment (HSE) Manual (“Manual”) states that
Legion personnel should be involved in all aspects of planning a rig move and specifically
articulates the duties of Legion’s truck pusher on site, Eric Tornquist. Pls.’ Ex. 6. 519-521,
ECF 129, p. 139-141; Pls.’ Ex. 12. ECF 129, p. 183. The truck pusher maintains “overall
responsibility for all Crane Operators, Equipment Operators, Transport Operators, Riggers,
Spotters, Swampers, and other subcontract personnel working under their direction,
ensuring that each has been deemed competent for their assigned work activities and
comply with governing HSE policy at all times.” Pls.’ Ex. 6. 519. It is the truck pusher’s
job to “assign competent riggers/signal persons for moving and lifting of loads.” Id. at 520.
Before a rig move, the Manual requires the truck pusher to perform pre-rig move planning
and discuss any hazards with all affected personnel. Id. at 519.
The Manual additionally states that, for critical lifts, the truck pusher serves as lift
leader. Pls.’ Ex. 6. 520. The Manual defines a critical lift to include “blind lifts,” which are
lifts where the crane operator cannot see the load they are lifting. Id.; Pls.’ Ex. 7. 27:9-11,
ECF 129, p. 151.
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Finally, the Manual states that truck pushers are also responsible for facilitating the
job safety analysis (“JSA”). Pls.’ Ex. 6. 618. The Manual defines a JSA as a hazard
identification tool used to ensure that tasks are analyzed and risk reduction measures are in
place to reduce the risk of injury or equipment damage. Id. at 617. JSAs explain the
sequence of basic job steps, identify possible accidents and hazards, develop control
measures for risk management, and identify the individual assigned to manage each control
measure. Id. at 618. JSAs apply to all of Legion’s subsidiary companies and contractors.
Id. at 617. JSAs are required for all “safety critical tasks,” including but not limited to “jobs
involving multiple organizations or simultaneous operations.” Id. at 618. JSAs for safety
critical tasks shall be written and signed by all affected employees to acknowledge their
commitment to following the established procedure. Id. at 617-618.
The contract between Defendant Legion and Entrec is not in the record and there is
nothing in the record indicating that Entrec was aware of Legion’s HSE Manual. Def.’s
Ex. E. 143:11-15, ECF 124, p. 42. Entrec’s employee Veo testified that he had never seen
the Manual before he saw it during his deposition. Id. at 143:14-15.
Plaintiffs point out that no written JSA has been produced in discovery and DCT
employees do not recall participating in a Legion JSA. ECF 129, p. 6; Pls.’ Ex. 11.
101:13- 18, ECF 129, p. 181. Justin Lewis testified that Legion was not at a safety meeting
on the day of the accident. Pls.’ Ex. 4. 190:17-19, ECF 129, p. 40. Defendant Legion does
not specifically address the JSA, but provides evidence that Eric Tornquist, Legion’s truck
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pusher and site supervisor, performed a pre-move assessment three days prior to the
accident. Def.’s Ex. A. 0005, ECF 124, p. 32; Guerena Dep. 40:22-25.
On January 4, 2019, Entrec arrived at the well at approximately 2:00 pm. Pls.’ Ex. 8.
000031, ECF 129, p. 156. Two Entrec employees were present: Kyle Veo and Mitch
Bockenkamp. Pls.’ Ex. 9. 56:8-9, ECF 129, p. 164. Veo was the crane operator and
Bockenkamp was the crane rigger. Bockenkamp testified that he does not remember if he
ever performed a blind lift before the day of the accident, and he does not remember
receiving any training on blind lifts. Pls.’ Ex. 10. 71:14-15, 44:7-9, ECF 129, p. 174, 172.
Bockenkamp said in Legion’s investigation report that the “centrifuge guys” wanted to
leave, so Tornquist confirmed with the Entrec employees that they could begin breaking
down the centrifuge stand. Def.’s Ex. A. 0007.
At approximately 4:00pm, Veo positioned his crane where a tank was between the
crane and the centrifuge stand, creating a blind lift. Pls.’ Ex. 8. 000031.; Pls.’ Ex. 7.
28:14- 16, 25:11-13. Tornquist wrote that after Entrec lifted the centrifuge off its stand, he
“told [the] crane [its] next step was to fly stand out and lower [the stand] then load [the]
stand on [a] truck that was waiting on standby.” Pls’ Ex. 12. Then Tornquist returned to
the mud tanks he was previously rigging down as part of the rig move. Tornquist did not
witness Lewis being injured. Id.
While Tornquist was at the mud tanks, Lewis and another DCT employee began
knocking the retaining pins out of the centrifuge stand legs so the stand could be telescoped
down. Pls.’ Ex. 8. 000031. Once the pins were knocked out, Bockenkamp, who was serving
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as Veo’s spotter, told Veo over the radio that he could lower the stand. Pls.’ Ex. 10. 69:6.
The sun was going down and Veo, Entrec’s crane operator, later testified that it would be
unusual for a crane operator to conduct a rig move after daylight. Pls.’ Ex. 11. 47:12;
Pls.’ Ex. 9. 159:21-160:4. The workers were in a hurry to complete the job and while the
stand was lowering, Lewis noticed that a catwalk had not been secured and would be
damaged if the load continued to lower. Def.’s Ex. A. 0005; Pls.’ Ex. 4. 83:6-11. Lewis
signaled to Bockenkamp to stop the crane. Id. at 227:10-23. The crane stopped, and Lewis
went into the centrifuge area to secure the catwalk. Id. at 90:15-20. While Lewis was
securing the catwalk, the crane resumed lowering and Lewis’s arm was crushed between
two parts of the stand. Pls.’ Ex. 11. 24:10, 25:10.
II. Applicable Legal Standards
“The Court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); Mata v. Anderson, 635 F.3d 1250, 1252 (10 th Cir. 2011). In
determining whether summary judgment is appropriate, the Court views the evidence and
draws all reasonable inferences therefrom in the light most favorable to the nonmoving
party. Mumby v. Pure Energy Servs. (USA), Inc., 636 F.3d 1266, 1269 (10 th Cir. 2011).
“However, to defeat summary judgment, a plaintiff must support the claim with more than
conjecture and speculation.” Cunningham v. Jackson Hole Mt. Resort Corp., 15-cv-07,
2016 U.S. Dist. LEXIS 190233, 4 (D. Wyo. Feb. 17, 2016). To survive a motion for
summary judgment, there must be more than “[t]he mere existence of a scintilla of evidence
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in support of the [nonmoving party’s] position … there must be evidence on which the jury
could reasonably find for the [nonmoving party].” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).
There must be no genuine issue of material fact. Anderson, 477 U.S. 242 at 248. A
fact is material if, under the applicable substantive law, it is “essential to the proper
disposition of the claim.” Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d
1226, 1231–32 (10th Cir. 2001). An issue of fact is “genuine” if “there is sufficient
evidence on each side so that a rational trier of fact could resolve the issue either way.”
Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The burden of
persuasion rests squarely on the moving party. Trainor v. Apollo Metal Specialities, Inc.,
318 F.3d 976, 980 (10th Cir. 2002).
Turning next to the law concerning liability of an employer of an independent
contractor, the Wyoming Supreme Court has adopted Restatement (Second) of Torts § 409,
which provides, “the employer of an independent contractor is not liable for physical harm
caused to another by an act or omission of the independent contractor or his servants.” See
Jones v. Chevron, 718 P.2d 890, 898 (Wyo. 1986). This general rule applies unless the
plaintiff can establish liability under one of two exceptions. 	The second exception is at
issue here, which addresses claims of direct negligence pursuant to Restatement (Second)
of Torts § 414. See, Merit Energy Co., LLC v. Horr, 366 P.3d 489 (Wyo. 2016). “In order
to recover in such a direct negligence action, the plaintiff must show a legal duty owed by
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the defendant to the plaintiff, a breach of that duty, causation, and damages.” Id. at 494.
Section 414 states:
One who entrusts work to an independent contractor, but who retains the control of
any part of the work, is subject to liability for physical harm to others for whose
safety the employer owes a duty to exercise reasonable care, which is caused by his
failure to exercise his control with reasonable care.
Id. (quoting Restatement (Second) of Torts § 414.
III. 	Discussion
Legion argues there is no basis for a direct negligence claim against Legion because
no Legion employee was involved in the actions or inactions leading to Mr. Lewis’s injury.
ECF 125, p. 12.Plaintiffs argue Legion retained substantial control over Entrec’s work and
Legion’s failure to exercise that control reasonably caused Lewis’s injuries. ECF 129, pp.
16, 15.
The Wyoming Supreme Court relies on the comments to Section 414 for guidance,
which assigns liability if the employer of an independent contractor retains control of any
operative detail of the work. Merit, 366 P.3d at 494 (quoting Restatement (Second) of Torts
§ 414 cmt. a). The employer must have retained the right to control some aspect of the
work, and supervision of the work, such that the contractor is not entirely free to do the
work in their own way. The threshold of control required to trigger a duty under Section
414 is lower than that required for the master servant relationship. Id. at 495 (quoting
Restatement (Second) of Torts § 414 cmt. a). However, merely retaining the right to “order
the work [be] stopped or resumed, to inspect its progress or to receive reports, to make
suggestions or recommendations which need not necessarily be followed, or to prescribe
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alterations and deviations” is not sufficient. Id. (quoting Restatement (Second) of Torts
§ 414 cmt. c).
The Wyoming Supreme Court’s analysis in Merit is instructive. More specifically,
the Court found that Merit sufficiently controlled its independent contractor because Merit
controlled the pressure of its well, retained control over the equipment used to control the
pressure, had expertise in the management of well pressure, retained authority to “kill” the
well - which it did not direct to be done, and Merit’s employee told the contractor to replace
the component when the pipe became stuck without checking well pressure or the tubing
stuck in the wellhead. Id. at 499. The Court held that this evidence was “sufficient to permit
more than one reasonable inference as to whether there was sufficient control to impose a
duty.” Id.
This case differs from the facts from Merit because Legion lacks such control over
the operative detail of Entrec’s crane work. Plaintiffs rely heavily on the written note from
Legion’s truck pusher, Tornquist, to establish that Legion controlled Entrec’s crane
operation:
While rigging down mud equipment, [I] helped and watched crane fly center fuge
[sic] off stand & told crane next step was to fly stand out and lower [the stand] than
[sic] load stand on truck that was waiting on standby[.] [A]fter telling him to do that
I went over to the mud tank I was previously working on rigging down & setting
out & all of a sudden herd [sic] someone yelling & saying come up. When I turned
& looked over to the stand saw mud guy was caught in between ladder rungs &
yelled at crane to come up.
Pls’ Ex. 12.
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Plaintiffs further argue that Legion controlled the manner of work because the lift
was performed at the end of daylight. ECF 129, p. 19; Pls.’ Ex. 9. 159:21-160:4. The rig
move started at 4:00 pm and the sun was starting to go down at the time of the accident.
Pls.’ Ex. 8. 000031; Pls.’ Ex. 11. 47:12. Veo, Entrec’s crane operator, testified that it would
be unusual for a crane operator to conduct a rig move after daylight. Pls.’ Ex. 9.
159:21- 160:4.
Finally, the Incident Report filed by Legion identifies Tornquist as the supervisor
responsible for discussing the details of rig moves at daily safety meetings. Def.’s Ex. A.
0005; Guerena Dep. 22:15-23:4. Given Tornquist’s position, Plaintiffs rely on Legion’s
Manual to argue Tornquist was responsible for the blind lift conducted by Entrec’s
personnel working under Legion’s direction, which would include the responsibility to
develop and facilitate a JSA and ensure personnel have adequate training and experience
to maintain a safe working environment. 	ECF. 129, p. 3; Pls.’ Ex. 6. 519; Pls.’ Ex. 7.
25:11-13. Based on depositions taken by Plaintiffs’ counsel, Tornquist did not perform a
JSA or ensure that involved personnel had proper training. Pls.’ Ex 11. 101:16; Pls.’ Ex. 4.
47:13.
Turning first to Tornquist’s written statement, this statement to Entrec’s personnel
about the “next step” does not constitute controlling the operative detail of the crane work.
This is true even considering that the truck was waiting on standby late in the workday.
Entrec’s personnel could choose to delay the stand lift in light of the time of day or the
obstructed view. Both the time of day and the obstructed view were circumstance created
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by Entrec, not Legion or its personnel, by Entrec’s late arrival and its decision to place the
crane at the location. 	Additionally, Entrec’s personnel were entirely free to decide how,
when, and where to lower the stand as Tornquist had left the area to work on the mud tank.
This conclusion is further supported by Entrec’s crane operator, Veo, who testified that he
(Veo) merely coordinates with the truck pusher about where to put the crane for a lift, but
that Veo makes the ultimate decision. Veo Dep. 152:22. Veo also testified that Tornquist
did not tell him how to do his job. Id. at 141:20-23, 142:19-22.
Turning to evidence regarding Legion’s Manual, in Abraham v. Andrews Trucking
Co. the Wyoming Supreme Court held that the mere existence of a safety manual is
insufficient to establish that an employer had assumed affirmative safety duties. 893 P.2d
1156, 1157-1158 (Wyo. 1995). The Court explained that the employer must actually
exercise those duties for a duty of care to attach. Id. In this casethere is no contract in the
record showing that the Manual’s terms were incorporated into any agreement between
Legion and Entrec, or anything showing that Entrec was even aware of Legion’s Manual.
See Veo Dep. 143:11-15.
Moreover, despite Defendants’ acknowledgment that Tornquist was a supervisor
and someone who attended safety meetings, there is nothing in the record about those
meetings to indicate that Tornquist exercised the control prescribed by the Manual or acted
as anything more than a participant who could merely “order the work [be] stopped or
resumed, 	to 	inspect 	its 	progress 	or 	to 	receive 	reports, 	to 	make 	suggestions 	or
recommendations which need not necessarily be followed, or to prescribe alterations and
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deviations.” Def.’s Ex. A. 0005. In short, while the Manual may ultimately be relevant to
the question whether Legion breached a duty of care, it alone does not create a duty of care
or provide supporting evidence or inference to show that Legion retained or exercised a
right of control of the operative details of the crane work.
For all these reasons, the Court concludes that the evidence is insufficient as a matter
of law to show a legal duty owed by Legion to Plaintiffs to support their direct negligence
claim against Legion. 	Accordingly, summary judgment on Plaintiffs’ negligence claim
against Legion is GRANTED.
IV. Conclusion
For the reasons above, the motion for summary judgment by Legion Rig Services,
LLC, (ECF 124) is GRANTED; and
Because the Court did not consider Legion’s additional facts and legal authorities
for resolution of the pending motion, Plaintiffs’ Motion to Strike (ECF 136) is DENIED
AS MOOT.
SO ORDERED this ___ day of June, 2023.
_______________________________________
NANCY D. FREUDENTHAL
UNITED STATES SENIOR DISTRICT JUDGE
21st
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