UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DOUGLAS F. WHITE,
BETHLEHEM STEEL CORPORATION,
KRUPP LONRHO GMBH SEESCHIFFART,
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
Argued: June 6, 2000
Decided: August 2, 2000
Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge,
and Henry M. HERLONG, Jr., United States District Judge
for the District of South Carolina, sitting by designation.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Murnaghan and Judge Herlong joined.
ARGUED: Edward J. Lilly, LAW OFFICES OF PETER G. ANGE-
LOS, Baltimore, Maryland, for Appellant. Benjamin Rader
Goertemiller, ALBRIGHT, BROWN & GOERTEMILLER, L.L.C.,
Baltimore, Maryland, for Appellee. ON BRIEF: Roger A. Doumar,
John B. Bratt, LAW OFFICES OF PETER G. ANGELOS, Baltimore,
Maryland, for Appellant.
WILKINSON, Chief Judge:
This case presents the question of whether appellant Douglas
White was a borrowed servant of appellee Bethlehem Steel. The
trict court found that he was a borrowed servant, and thus an
employee of Bethlehem Steel for purposes of the Longshore and
bor Workers' Compensation Act (LHWCA). Because the LHWCA
mandates that an employee's sole remedy with regard to his employer
is through the LHWCA, the court dismissed White's tort action.
33 U.S.C. S 905(a) (1994). Because White was under the authoritative
direction and control of Bethlehem Steel at the time of his injury,
affirm the dismissal of his suit.
For twenty-six years, Douglas White worked as a heavy equipment
operator for C.J. Langenfelder & Son, Inc. Langenfelder rented
construction equipment and the employees who operated that equip-
ment to various companies, among them Bethlehem Steel. Of the
approximately 500 employees who worked for Langenfelder, about
100 were assigned to Bethlehem Steel.
Langenfelder and Bethlehem Steel had a contract specifying the
terms of agreement between the two companies. The contract stated
that Langenfelder would maintain "exclusive direction, supervision
[and] control" over its workers. While the contract between
parties expired on December 31, 1993, it apparently continued
ern the parties' relationship at the time of the incident in
Although Langenfelder paid its employees' wages and insurance,
passed those costs through to Bethlehem Steel.
For all but two weeks of White's twenty-six year tenure, he worked
at Bethlehem Steel. Langenfelder would tell White where to report
within Bethlehem Steel. Approximately one-eighth of the time,
was assigned to the New Ore Pier within the Bethlehem Steel yard.
At the New Ore Pier, only Bethlehem Steel employees supervised
White. When White arrived at the pier, a Bethlehem Steel foreman
would tell him where to go. If a work-related problem arose,
hem Steel supervisors would resolve it. Over the course of White's
twenty-six years at the pier, no Langenfelder employee ever super-
vised his work. Bethlehem Steel also reserved the right to reject
Langenfelder employee at any time. If Bethlehem Steel dismissed
Langenfelder employee, Langenfelder would have no choice but
terminate that individual.
On August 24, 1995, White was working on the M/V JUNIPER,
which was berthed at the New Ore Pier. After his shift ended,
attempted to exit a hold of the JUNIPER by ladder. As he climbed
ladder, he slipped and fell, injuring himself. White maintains
injury was caused by a lack of light in the hold. White received
ers' compensation for his injury under the LHWCA.
White also sued Bethlehem Steel, alleging that the company was
negligent for allowing him to remain in the hold after dark without
any light source, for failing to supervise him adequately, and
ing to provide him with any assistance in exiting the hold. The
court dismissed White's action, reasoning that although the LHWCA
allows an employee to pursue personal injury actions against
parties, it does not allow an employee to maintain a tort action
employee is a borrowed servant. The district court then concluded
that White was a borrowed servant of Bethlehem Steel due to the
trol that Bethlehem Steel supervisors exercised over him, the
of his tenure at Bethlehem Steel, and the pass-through arrangement
by which Bethlehem Steel would effectively pay his wages and
ance. The court further concluded that the ability of Bethlehem
to exclude him from the work site effectively gave the company
power to fire him. White now appeals.
The LHWCA is a no-fault federal compensation scheme designed
to give protection to injured maritime workers while at the same
affording employers some degree of predictability with regard
those workers' recoveries. See Rodriguez v. Compass Shipping
451 U.S. 596, 616 (1981). Covered employees cannot bring a per-
sonal injury action against their employer; their only remedy
regard to their employer is through the LHWCA. See 33 U.S.C.
S 905(a). In 1972, Congress substantially increased the level
fault compensation. During the debate on the 1972 amendments,
itime employers took the position that they could provide higher
efits "only if the LHWCA were to again become the exclusive
against [the employer] as it had been intended since its passage
1927 . . . ." Peter v. Hess Oil Virgin Islands Corp., 903
F.2d 935, 948
(3d Cir. 1990) (internal quotation marks omitted). Thus, a central
pose of these changes to the LHWCA was to "minimize the
litigation as a means of providing compensation for injured work-
men." Rodriguez, 451 U.S. at 616; see also Peter, 903 F.2d
("The Act is premised on the notion that employers will
burden of no-fault compensation recovery in exchange for predictable
liability for injuries suffered by workers.").
While the LHWCA does not explicitly adopt the borrowed servant
doctrine, the word "employer" in 33 U.S.C.S 905(a)
both general employers and employers who "borrow" a
that general employer. See Huff v. Marine Tank Testing Corp.,
F.2d 1140 (4th Cir. 1980); Peter, 903 F.2d at 938-39; Gaudet
Exxon Corp., 562 F.2d 351 (5th Cir. 1977). A person can be in
general employ of one company while at the same time being in
particular employ of another "with all the legal consequences
new relation." See Standard Oil Co. v. Anderson, 212 U.S.
(1909). In order to determine whether an employee is a borrowed
vant, courts "must inquire whose is the work being performed
. . . by
ascertaining who has the power to control and direct the servants
the performance of their work." Id. at 221-22. The Supreme
noted, however, the importance of "distinguish[ing] between
tative direction and control, and mere suggestion as to details
necessary cooperation." Id. at 222.
The authority of the borrowing employer does not have to extend
to every incident of an employer-employee relationship; rather,
need only encompass the servant's performance of the particular
in which he is engaged at the time of the accident. See id. at
McCollum v. Smith, 339 F.2d 348, 351 (9th Cir. 1964). When the
rowing employer possesses this authoritative direction and control
over a particular act, it in effect becomes the employer. In
tion, the only remedy of the employee is through the LHWCA.
In order to determine direction and control, a court may look
tors such as the supervision of the employee, the ability to
reject the services of an employee, the payment of wages and
either directly or by pass-through, or the duration of employment.
Ultimately, any particular factor only informs the primary inquiry
whether the borrowing employer has authoritative direction and
trol over a worker.
In Huff v. Marine Tank Testing Corp., this court confronted the
same issue presented in the case at bar. We held that the employee
was a borrowed servant because he was "for all practical
an employee of the borrowing company. Huff, 631 F.2d at 1144.
Huff, the plaintiff technically worked for Perry Welding Company,
but did all of his actual labor for Allied Towing Corporation.
port of the holding that Huff was a borrowed servant of Allied's,
noted that the jobs performed were entirely Allied's work, that
was under Allied's supervision, that Huff was subject to discharge
Allied, and that Huff worked at Allied the entire time he was
cally employed by Perry. In reaching this conclusion, the Huff
implicitly adopted the test that we explicitly adopt today by
on factors that determine whether the borrowing employer can
and direct the employee. See id. at 1143-44; see also Parker
Lujan Enterprises, 848 F.2d 118, 120 (9th Cir. 1988) (adopting
"authoritative direction and control" test from Standard
Oil in the
workers' compensation context).
Here, the district court applied a nine-part test to determine
whether White was a borrowed servant of Bethlehem Steel. See,
Alday v. Patterson Truck Line, Inc., 750 F.2d 375, 376 (5th Cir.
1985). This court in Huff did not adopt that nine-part inquiry,
decline to do so now. A nine-part probe provides insufficient
ance to prospective litigants about the application of a legal
as the Fifth Circuit itself has intimated. See Gaudet, 562 F.2d
But see Billizon v. Conoco, Inc., 993 F.2d 104 (5th Cir. 1993)
ing the nine-part test). The authoritative direction and control
will more efficiently resolve a plaintiff's borrowed servant
a nine-factor balancing calculus.
White contends that he was not the borrowed servant of Bethlehem
Steel, and that the district court erred in dismissing his tort
disagree. Applying the authoritative direction and control test
employment situation, we hold that White was a borrowed servant
The very fact that White is bringing this lawsuit against Bethlehem
Steel is strong evidence of the extent of Bethlehem Steel's control
over him. White is suing for breach of a duty of care, which
that Bethlehem Steel had a duty in the first place. Indeed, White's
complaint admits that he was working under "the supervision
participation of Defendant Bethlehem Steel Corporation, its agents,
servants and/or employees" (emphasis added). Moreover, White
alleges that Bethlehem Steel's failure to supervise was itself
gent act. White cannot have it both ways. Although undoubtedly
worker can bring a personal injury action against a third party,
nature of White's allegations are evidence in and of themselves
Bethlehem Steel was supervising and controlling him.
White argues, however, that since the expired contract continued
govern, and since the contract specifically acknowledged that
genfelder employees would remain under the direction and control
Langenfelder itself, a genuine issue of material fact exists
be presented to the jury. We disagree. The overwhelming weight
the undisputed evidence in this case, much of it from White himself,
shows that Bethlehem Steel maintained authoritative direction
control over White. In actual practice, White worked just as
if he were
a Bethlehem Steel employee. Bethlehem Steel supervised him over
twenty-six year period, Bethlehem Steel assigned him to the ships
where he would work, Bethlehem Steel paid his wages and insurance
premiums in pass-through form, and Bethlehem Steel could effec-
tively fire him by excluding him from the job site. Indeed, White
his deposition repeatedly acknowledged that Langenfelder never
supervised him during the quarter-century he worked at the pier.
The fact that an expired contract said something different does
change the true nature of the relationship. See, e.g., Gaudet,
at 357-59 (granting summary judgment in favor of the borrowing
employer, despite the existence of a contract proclaiming that
original employer maintained control, because the other undisputed
facts showed that the employee was a borrowed servant). Allowing
a case this clear to go to the jury would undercut the value
worker's compensation system, which is predicated on a no-fault
regime and quick recovery. See Artis v. Norfolk & Western
Co., 204 F.3d 141, 144 (4th Cir. 2000) (The LHWCA and other work-
ers' compensation statutes "are designed to provide quick
tain relief for work related injuries.") (internal quotation
omitted). A trial on such undisputed facts would harm the very
ers who are injured by creating incentives for employers to distrust
the workers' compensation system and to work against its operation.
White was under the authoritative direction and control of Bethle-
hem Steel while he worked at the New Ore Pier. Consequently,
was a borrowed servant and the LHWCA is his exclusive remedy.
Accordingly, the judgment of the district court dismissing his