Hall v. Crown Zellerbach Corp.

• Decision Date: 26 September 1983
• Docket Number: No. 82-3682,82-3682
• Parties: Larry W. HALL, Plaintiff-Appellant, v. CROWN ZELLERBACH CORPORATION, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 983

715 F.2d 983

Larry W. HALL, Plaintiff-Appellant, v. CROWN ZELLERBACH CORPORATION, Defendant-Appellee.

No. 82-3682

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Sept. 26, 1983.

S. Michael Cashio, Jr., Kenner, La., for plaintiff-appellant.

R. Bradley Lewis and Richard F. Knight, Bogalusa, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, POLITZ and JOHNSON, Circuit Judges.

PER CURIAM:

Under Louisiana's workmen's compensation statute, an employee of an independent contractor may recover compensation benefits from the principal employer on a job if the employee is injured while performing work which is part of the principal's "trade, business, or occupation." LSA-RS 23:1061 (West 1964). ¹ This statutory liability carries with it its own limitation- : the principal employer is shielded from tort liability. LSA-RS 23:1032 (West Supp.1983). ² Whether a statutory relationship exists is a question of fact to be determined by the totality of the circumstances surrounding each case. Penton v. Crown Zellerbach Corporation, 699 F.2d 737, 741 (5th Cir.1983), quoting Ortego v. Union Oil Company of California, 667 F.2d 1241 (5th Cir.1983) (per curiam).

In the instant diversity action, Larry Hall, a painter injured in the course of his work, appeals from a jury finding that such a statutory employment relationship precludes his tort claim against Crown Zellerbach Corporation. Hall contends that the evidence was insufficient for the jury to conclude that a statutory relationship existed, and that the court below erred in its instruction to the jury on the statutory employer defense. Unfortunately, Hall's counsel failed properly to preserve these issues for our review. We are therefore forced to consider these questions under the stringent "plain error" standard. Applying this strict test to a murky record, we cannot find that the jury, or the court, committed "plain error," or that a miscarriage of justice would result were the verdict allowed to stand.

I.

In 1976, Crown Zellerbach Corporation (Crown) commenced a four-year, multi-million dollar "modernization" project to expand and upgrade its paper mill in Bogalusa, Louisiana. Most of the work was contracted out; however, Crown used its own employees to perform various tasks connected with the project as well as retaining control by designating itself the general contractor and appointing a special project manager, Robert Martin, to oversee the project.

Part of the modernization program included the installation of two high density tanks and a diffuser washer system. Crown contracted with Kamyr, Inc. to erect those steel structures; the contract called for Kamyr to erect them completely primed but without a finish coat of paint. For budget reasons, the priming was later eliminated from the Crown-Kamyr contract, and the tanks were erected unprimed. Subsequently, Crown contracted with Belle Chasse Contractors, Inc. to prime and paint the tanks in question. Hall, a painter's helper employed by Belle Chasse, was engaged in preparation for priming the steel pursuant to this contract when he was injured.

Hall sought recovery from Crown under Louisiana tort law on theories of negligence and strict liability. At the conclusion of a three-day trial, Crown moved for summary judgment on the ground that LSA-RS 23:1061 rendered it immune from tort liability because it was Hall's "statutory employer." The district court denied the motion and submitted the question of the existence of a statutory employment relationship to the jury, which found for Crown on this determinative issue.

II.

On appeal, Hall asserts that the evidence was insufficient for the jury to reach its conclusion and that the trial court erred in its instruction to the jury on the "statutory employer" defense. However, neither of these issues are properly before us, since Hall's counsel failed to preserve them for appellate review.

Sufficiency of the Evidence

It is the law in this circuit, as generally elsewhere, that the sufficiency of the evidence supporting a jury verdict is not reviewable on appeal, ... unless a motion for directed verdict was made at the close of all the evidence by the party seeking that review.

Quinn v. Southwest Wood Products, Inc., 597 F.2d 1018, 1024 (5th Cir.1979). See Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978), and cases cited therein. As this court has previously explained, ³ the rule is designed to prevent litigants from gambling that the jury will rule in their favor, while reserving the option of challenging the sufficiency of the evidence on appeal should the jury rule against them.

When a claimed deficiency in the evidence is called to the attention of the trial judge and of counsel before the jury has commenced deliberation, counsel still may do whatever can be done to mend his case. But if the court and counsel learn of such a claim for the first time after verdict, both are ambushed and nothing can be done except by way of a complete new trial. It is contrary to the spirit of our procedures to permit counsel to be sandbagged by such tactics or the trial court to be so put in error.

Quinn, 597 F.2d at 1025.

This case presents a core example of a fatally belated challenge to the evidence. Plaintiff did not move for a directed verdict at the close of the evidence, ⁴ nor indeed did plaintiff assert any deficiency in the evidence by way of a motion for relief prior to the jury's commencement of its deliberations. ⁵ Where plaintiff has thus failed to preserve the issue of sufficiency of the evidence for appellate review,

"our inquiry is limited to whether there was any evidence to support the jury's verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a manifest miscarriage of justice.

Coughlin, 571 F.2d at 297, citing American Lease Plans, Inc. v. Houghton Construction Co., 492 F.2d 34, 35 (5th Cir.1974); Little v. Bankers Life & Casualty Co., 426 F.2d at 511 (5th Cir.1970). See also Patton v. Archer, 590 F.2d 1319, 1323 (5th Cir.1979); House of Koscot Development Corp. v. American Line Cosmetics, Inc., 468 F.2d 64, 67, 68 nn. 4, 5 (5th Cir.1972); Ramada Development Co. v. Rauch, 644 F.2d 1097, 1102-03 (5th Cir.1981).

Prior to reviewing the record for some evidence of a statutory employment relationship, we take a moment to specify what evidence we seek. The standard for determining the existence of a statutory employment relationship was established by this court in Blanchard v. Engine & Gas Compressor Services, Inc., 613 F.2d 65, 69 (5th Cir.1980) (Blanchard II ). In that seminal case ⁶ we stated:

The proper standard, as we see it, is whether the activity done by the injured employee or his actual immediate employer is part of the usual or customary practice of the principal or others in the same operational business.

More specifically, we should first consider whether the particular principal involved in the case customarily does the type of work performed by the contractor and whether the contractor's work is an integral part of the work customarily performed by the principal. If either of these situations exist, then there is a statutory employment relationship, and the inquiry ends there. If, however, the principal does not normally engage in this type of activity, or if it is not normally a part of his practices, then it is necessary to determine if others engaged in businesses similar to that of the principal customarily do this type of work or if it is an integral part of their businesses. If either of these inquiries yields an affirmative answer, then the general custom of the trade will control to make the relationship between the principal in question and his contractors' employees that of statutory employer and employee.

In applying this test, it is proper to consider all facts which would or would not suggest a statutory employment relationship. Whether the work is essential to the business of the principal or others engaged in similar businesses, may be one such fact.

Another fact to consider is whether the principal, or others engaged in like operational activities, normally subcontract out the work or whether they have employees who can, and customarily do, do the work.

613 F.2d at 71 (emphasis added). Cases since Blanchard II in both state and federal courts have affirmed the analysis we performed in that case and further clarified the standard we outlined there. See, e.g., Penton v. Crown Zellerbach Corporation, 699 F.2d 737 (5th Cir.1983); Williams v. Shell Oil Co., 677 F.2d 506 (5th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 570, 74 L.Ed.2d 933 (1982); Darville v. Texaco, 674 F.2d 443 (5th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 298, 74 L.Ed.2d 280 (1982); Barrios v. Engine & Compressor Services, Inc., 669 F.2d 350 (5th Cir.1982); Murphy v. Georgia Pacific Corp., 628 F.2d 862 (5th Cir.1980); see also Melancon v. Tassin Amphibious Equipment Corp., 427 So.2d 932, 935 (La.App.1983) (approving Blanchard II analysis and test).

This case requires that we examine the precise definition and significance that our post-Blanchard II cases, and those of the Louisiana courts, have given to the issue of whether the work in question is usually performed by the principal's own employees. It is clear that "the determination of whether a principal is the statutory employer of a contractor's employee is not dependent upon the principal's having employees performing the same task." Guinn v. Progress Drilling, Inc., 398 So.2d 128, 130, (La.App.1981). See Murphy v. Georgia-Pacific Corp., 628 F.2d at 868, n. 12 ("Defendant's ... emphasis on the fact the Georgia-Pacific employees had the skills necessary to perform the work done by plaintiff when he was injured is misplaced. The construction project must be considered as a whole, ... otherwise, by hiring 'jacks of...