Leger v. Amerada Hess Corporation

• Decision Date: 13 June 1973
• Docket Number: No. 72-3480 Summary Calendar.,72-3480 Summary Calendar.
• Citation: 479 F.2d 1250
• Parties: Lester J. LEGER, Plaintiff-Appellant, v. AMERADA HESS CORPORATION, Defendant-Appellee, Consolidated Underwriters, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

479 F.2d 1250 (1973)

Lester J. LEGER, Plaintiff-Appellant, v. AMERADA HESS CORPORATION, Defendant-Appellee Consolidated Underwriters, Intervenor.

No. 72-3480 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

June 13, 1973.

W. D. Atkins, Jr., Lafayette, La., for plaintiff-appellant.

John Pitts, Alexandria, La., for defendant-appellee.

William H. de Launay, Jr., Alexandria, La., for intervenor.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

The sole issue on this appeal in this diversity case is whether Lester J. Leger was the statutory employee of Amerada Hess for purposes of exclusive liability under the Louisiana Workmen's Compensation statutes, La.Rev.Stat.Ann. § 23:1032 and § 23:1061.¹ The court below granted summary judgment for the defendant. We affirm.

Leger's general employer was Townsend Brothers, a firm which supplied labor to Amerada on a daily basis. At the time of his injury, Leger was engaged in cleaning up oil spilled from a separator at Amerada's work site under the direction of a supervisor supplied by Amerada.

The coverage of the "trade, business, or occupation" clause of § 23:1061 has been the subject of extensive judicial interpretation which is summarized in a series of recent opinions of this court. See, e. g., Arnold v. Shell Oil Company, 419 F.2d 43 (5th Cir. 1969); Cole v. Chevron Chemical Company-Oronite Division, 427 F.2d 390 (5th Cir. 1970), on appeal after remand, 477 F.2d 361 (5th Cir. 1973). As we stated in Arnold, citing numerous Louisiana cases, the test for determining whether the work of employees of independent contractors is within the regular "trade, business, or occupation" of the principal employer is "whether the particular activity is essential to the business." 419 F.2d at 50. The application of this test was further explained in Cole I thus:

. . . the fact that the employer or the industry as a whole always contracts out the activity is not controlling. . . .

Similarly not controlling is the fact that the employer hires workers of its own to perform activity related to the activity it contracts out. Instead, the decisive factors are the nature of the activity being contracted out, the nature of the principal employer\'s business, and the relationship between the particular activity and the broader business operation. In this regard, the basic inquiry is not whether the activity contracted for is helpful or necessary to the operation of the business enterprise, for we may presume that businessmen in the normal conduct of their affairs will not contract for work that is neither helpful nor necessary. Rather, we inquire whether the particular activity is so related to the principal employer\'s conduct of his trade, business, or occupation that it should be considered as an essential part thereof.

427 F.2d at 393-394. One important indicia of whether the independent contractor's employee falls within the scope of § 23:1061 is whether "the work contracted out was so necessary to the principal's operations that, if it were not performed by the independent contractor, the principal would have had to hire workers of its own to perform the task." Cole II, 477 F.2d 361.² This alternative-employee test reflects the basic purpose of § 23:1061 which is to prevent the principal employer from evading his obligations under the Workmen's Compensation Statutes by contracting out work which would otherwise be performed by its own employees. See Arnold v. Shell Oil Company, supra, 419 F.2d at 50; Foster v. Western Electric Co., 258 So.2d 153, 156 (La.App.1972); Malone, Principal's Liability for Workmen's Compensation to Employees of Contractor, 10 La.L.Rev. 25 (1949). While the essentiality of a particular activity to a given business enterprise may involve disputed facts, e. g., Cole v. Chevron Chemical Co.—Oronite Division, supra, 427 F.2d at 394; Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir. 1970), where the factual picture of the principal employer's operations and the part the activity in issue played in those operations is clear, summary judgment is appropriate, e. g., George v. Home Indemnity Co., 420 F.2d 782 (5th Cir. 1969); Fontenot v. Stanolind Oil & Gas Co., 243 F.2d 574 (5th Cir. 1957); Arnold v. Stupp Corp., 249 So.2d 276 (La. App.1971); Allen v. United States Fire Ins. Co., 222 So.2d 887 (La.App. 1969).

In Arnold and Fontenot, this court held that the maintenance of oil separation equipment at field work sites is part of the regular operation of an integrated oil company, so that those engaged in the maintenance of such equipment are as a matter of law statutory employees of the oil company under § 23:1061. In the present case, Leger's job—the removal and destruction of inflammable spillage from an oil separator —was part of the routine maintenance necessary to the continued safe operation of Amerada's work site. We find no reason to distinguish the legal status of employees supplied by independent contractors who repair separation equipment from that of those who clean up spillage surrounding such equipment. Both types of maintenance are...