Barnes v. Sun Oil Co.

• Decision Date: 05 September 1978
• Docket Number: Nos. 61773,61805,s. 61773
• Citation: 362 So.2d 761
• Parties: Randall Rex BARNES et al. v. SUN OIL COMPANY et al.
• Court: Louisiana Supreme Court

Page 761

362 So.2d 761

Randall Rex BARNES et al. v. SUN OIL COMPANY et al.

Nos. 61773, 61805.

Supreme Court of Louisiana.

Sept. 5, 1978.

Rehearing Denied Oct. 5, 1978.

James M. Funderburk, of Duval, Arceneaux, Lewis & Funderburk, Houma (Nicholas Gachassin, Lafayette, in only No. 61773), for plaintiffs-applicants in No. 61773 and for plaintiffs-respondents in No. 61805 Randall Rex Barnes and Joe B. Fincher.

Michael J. McNulty, III, Bauer, Darnall, McNulty & Boudreaux, Franklin, for defendant-respondent in both cases Sun Oil Co.

James B. Supple, Franklin, for plaintiffs-applicants in No. 61773 and for plaintiffs-applicants in No. 61805 Cindy Breaux and Brenda Howard.

DENNIS, Justice.

The ultimate question presented in this tort suit is whether summary judgment should have been granted declaring that plaintiffs' exclusive remedy is under the workmen's compensation statute. Settlement of the dispute hinges on whether defendant has shown there is no genuine issue as to a material fact, i. e., that the work Weco Welders, Inc. (Weco) performed for Sun Oil Company (Sun) was part of Sun's "trade, business, or occupation" for purposes of establishing coverage by the workmen's compensation statute. La. R.S. 23:1061.

Sun engaged Weco to do maintenance and repair work at Sun's Sweet Bay Lake oil production facility. Plaintiffs, employees of Weco, were injured while repairing a gas flow line in the course of their employment as repair and maintenance workers at the facility. They brought this action against Sun for damages resulting from the alleged negligence of a Sun employee. Sun successfully moved for summary judgment on the ground that plaintiffs' exclusive remedy for their injuries was under the workmen's compensation statute since Sun was plaintiffs' "statutory employer," against whom a workman cannot maintain an action in tort. La. R.S. 23:1061. Plaintiffs appealed contending that defendants' supporting affidavits were not made on personal knowledge and that the record indicated there was genuine issue as to a material fact which could be determined properly only by trial on the merits.

The court of appeal rejected plaintiffs' arguments and affirmed. 358 So.2d 655 (La. App. 1st Cir. 1978). We granted writs because it appeared from plaintiffs' applications and the court of appeal opinion that disputes existed as to material issues of fact, viz., disagreements as to the character of the work performed by Weco and plaintiffs at the Sweet Bay Lake facility and whether the work formed part of Sun's "trade, business or occupation."

Affidavits supporting or opposing motions for summary judgment must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967. Sun's affidavits were made by its Lafayette district production manager who stated that the Sun Oil Company facility at Sweet Bay Lake was within his district and that he was therefore competent to testify to the facts therein set forth and that he knew the facts set forth of his own personal knowledge. The affidavits failed to "show affirmatively" that the affiant was competent to testify to the matters stated therein. The fact that it is stated as a conclusion that the affiant has personal knowledge of the facts will not suffice. The facts as set forth in the affidavit must show that he has such knowledge. Antonio v. Barnes, 464 F.2d 584 (4th Cir. 1972); Benoit v. Burger Chef Systems of Lafayette, Inc., 257 So.2d 439 (La. App. 1st Cir. 1972); B. Shientag, Summary Judgment, 4 Fordham L. R. 186, 198 (1935). The mere fact that the affiant had been assigned the title of Lafayette district production manager does not show affirmatively that he had detailed personal knowledge of the facts pertaining to Sun's operations contained in his affidavit.

However, the argument that the supporting affidavit should have been disregarded was made for the first time on appeal. The record does not disclose that the plaintiffs filed a motion to strike or otherwise objected to the affidavit. Since it is entirely possible that the affidavit by the production manager could have been made on personal knowledge, we consider the inadequacy of the affidavit to be a formal defect which is deemed to be waived and conclude that the trial court properly considered it in ruling on the summary judgment motion. See, e. g., Associated Press v. Cook, 513 F.2d 1300 (10th Cir. 1975); 6 Moore's Federal Practice, § 56.22(1) (2d ed. 1974); Wright & Miller, Federal Practice and Procedure, Civil § 2738 (1973); cf. Benoit v. Burger Chef Systems of Lafayette, Inc., supra.

The evidence supporting the motion for summary judgment shows that throughout the United States Sun is engaged in the exploration, drilling, production, transportation, manufacture and marketing of oil, gas and other petrol chemicals. Sun uses its facility at Sweet Bay Lake, and others like it, to engage in the production and processing of oil and gas through wells, compressor stations, heaters, pipelines, separation equipment, and other...