In Sira Cruz v. National Steel and Shipbuilding Company; Peterson Industrial Scaffolding, Inc., Civil Action No. 17-55441 (December 19, 2018) (9th Cir.), a case that may only be noteworthy for practitioners in the Ninth Circuit, the Court applied a borrowed employee defense to a longshoreman’s claim against a third party. The defendant, in this personal injury case, was the borrowing employer of the plaintiff who was paid compensation under the LHWCA by her nominal employer. She then turned around to sue the defendant who then raised the borrowed employee defense. In a case of first impression for the Ninth Circuit, the summary judgment granted the defendant in the district court was affirmed specifically stating that the defense was applicable where the employee was covered by the LHWCA, allowing the Ninth Circuit to make the rare statement that “we join the Third, Fourth, Fifth, and Eleventh Circuits …” Id. at p. 3-4.
