613 F.2d 65 (5th Cir. 1980), 75-4216, Blanchard v. Engine and Gas Compressor Services, Inc.

Docket Nº:75-4216.
Citation:613 F.2d 65
Party Name:George E. BLANCHARD, Plaintiff-Appellant, Cross-Appellee, v. ENGINE AND GAS COMPRESSOR SERVICES, INC. and Gulf Oil Corporation, Defendants-Appellees, v. COMMERCIAL UNION INSURANCE COMPANY, Intervenor-Appellee, Cross-Appellant.
Case Date:March 06, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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613 F.2d 65 (5th Cir. 1980)

George E. BLANCHARD, Plaintiff-Appellant, Cross-Appellee,



Corporation, Defendants-Appellees,




No. 75-4216.

United States Court of Appeals, Fifth Circuit

March 6, 1980

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[Copyrighted Material Omitted]

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Harry R. Allen, Gulfport, Miss., Walter E. Ross, Jr., Biloxi, Miss., for plaintiff-appellant, cross-appellee.

George E. Morse, Gulfport, Miss., for Gulf Oil Corp.

Thomas L. Stennis, II, Gulfport, Miss., Felicien P. Lozes, New Orleans, La., for Commercial Union Ins. Co.

Sherman L. Muths, Jr., Gulfport, Miss., for Engine Compressor Services, Inc.

Claude D. Vasser, New Orleans, La., for defendants-appellees.

Appeals from the United States District Court for the Southern District of Mississippi.

Before BROWN, GEWIN and TJOFLAT, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

As it once was, 1 the issue which will not go away is whether the District Court erred by entering a directed verdict in favor of Gulf Oil Corporation, ruling that it was the "statutory employer" of Blanchard under LSA-R.S. 23:1061 (West 1964) and that his sole remedy against Gulf was under the Louisiana Workmen's Compensation Act. We reverse the holding of the District Court and remand for further proceedings consistent with this opinion.

Twice Told Tales

George E. Blanchard was employed as a mechanical supervisor by Engine and Gas Compression Service, Inc. (Engine and Gas). This company supplied mechanical services to Gulf Oil Corporation (Gulf) to maintain and repair compressors at its Ingersoll Rand Station in the Mississippi River Delta, about thirty minutes from Venice, Louisiana.

Blanchard and Pollard Lee, another employee of Engine and Gas, were assigned to the Ingersoll Rand Station. While performing some extensive repairs on a compressor there, Blanchard became covered with oil. In this condition, he tried to replace

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a 150 pound compressor bearing cap. The cap fell on him, and Blanchard slipped and injured his back, suffering permanent partial disability.

Blanchard sued his employer and Gulf for damages under the Jones Act and in diversity under Louisiana tort law. The District Court granted the defendants' motion for summary judgment on the Jones Act claim which we affirmed. The diversity action proceeded to trial where the District Court entered a directed verdict against Blanchard on the grounds that he was a statutory employee of Gulf under the Louisiana Workmen's Compensation Act, and his right of recovery was therefore limited to workmen's compensation. Blanchard appealed and we certified this issue to the Louisiana Supreme Court.

An Unanswered Query

But our hopes for a surer, if not easier, answer were dashed by the Supreme Court's cryptic, enigmatic response, relying as it properly could on the Rule's 2 discretion to decline to answer:

In Re: George E. Blanchard, applying for Certification from the Fifth Circuit Court of Appeal, No. 75-4216.

Decline. The jurisprudence of this Court does not warrant an additional pronouncement at this time. See Reeves v. Louisiana & Arkansas Ry., 282 So.2d 503 (La.1973); Lushute v. Diesi, 354 So.2d 179 (La.1978); La.Sup.Ct. Rules XII, Sec. 1.

We continue to feel that Louisiana jurisprudence demonstrates two different standards for determining when a principal is considered the statutory employer of his contractor's employee, and we express here our feelings of hesitation at the prospect of divining Louisiana law without the guidance which the Louisiana Supreme Court is in the best position to give. We pay special attention to the cases cited for us by our brethren on the Louisiana Supreme Court, Reeves v. Louisiana & Arkansas Railway, 282 So.2d 503 (La.1973) and Lushute v. Diesi, 354 So.2d 179 (La.1978).

The Louisiana Statutory Employer

Louisiana Workmen's Compensation Law, LSA-R.S. 23:1061, provides that the principal for whom a contractor is performing work which is part of the principal's "trade, business or occupation," 3 shall be

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liable for workmen's compensation benefits to the contractor's employees.

Although in practice at least as we see it in the flood of diversity and maritime or quasi-maritime cases the purpose of the section is urged, looked upon or held to be immunity to traditional third party tort liability, 4 the true purpose of this provision, as long ago described (and since many times echoed) in Horrell v. Gulf & Valley Cotton Oil Company, Inc., 15 La.App. 603, 610, 131 So. 709, 714 (1930) is:

to protect employees of minor contractors against the irresponsibility of their immediate employers by making the principal employer, who has general control of the business in hand, liable as if he had directly employed all who work upon any part of the business which he has undertaken to carry on.

Coincident with this responsibility placed on the statutory employer, the Louisiana Workman's Compensation Act, LSA-R.S. 23:1032 5 (West Supp.1979), limits a contractor's employee's recovery to the compensation benefits. The result is that a statutory employer cannot be sued in tort. Of course, the "exclusive remedy" defense will not bar a tort action against the principal if it is not a statutory employer, that is, if the work performed by the contractor was not part of the defendant's "trade, business or occupation."

Thus, we turn to Louisiana jurisprudence to determine what standard to use in deciding whether the work done by Blanchard was part of the "trade, business or occupation" of Gulf. In our previous opinion in this case, 575 F.2d at 1143-45, we discussed various Louisiana cases and found them somewhat inconsistent. However, the Louisiana Supreme Court has indicated to us that Reeves, supra, states the controlling rule of law. 6

Reeves involved the installation of a coking unit by Foster Wheeler Corporation on the premises of Humble Oil and Refining Company. The plaintiff, an employee of Foster Wheeler, was injured on the job and asserted a tort action against Humble. The Court ruled in favor of the plaintiff, holding that he was not Humble's statutory employee. The Court did not mention the "essential to business" test articulated in Thibodaux v. Sun Oil Company, La.App., 40 So.2d 761 (1949), Aff'd, 218 La. 453, 49 So.2d 852 (1950). Under this test, the statutory employer-employee...

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