Bergeron v. United States, Civ. A. No. 79-1261

• Decision Date: 12 August 1980
• Docket Number: Civ. A. No. 79-1261,80-0451,79-1296,79-1303 and 79-1552.,79-1276,80-0333,79-1299
• Citation: 495 F. Supp. 222
• Court: U.S. District Court — Western District of Louisiana
• Parties: Bradley BERGERON v. UNITED STATES of America et al. Barbara Clostio SIMON, etc., et al. v. UNITED STATES of America et al. PELICAN WELL SERVICE v. PARSONS-GILBANE et al. RANGER INSURANCE COMPANY v. UNITED STATES of America. UNITED STATES of America v. LOUIS RECORDS & ASSOCIATES, INC., et al. HACKBERRY SHRIMP SHOP, INC. v. UNITED STATES of America.

495 F. Supp. 222

Bradley BERGERON v. UNITED STATES of America et al.

Barbara Clostio SIMON, etc., et al. v. UNITED STATES of America et al.

PELICAN WELL SERVICE v. PARSONS-GILBANE et al.

RANGER INSURANCE COMPANY v. UNITED STATES of America.

UNITED STATES of America v. LOUIS RECORDS & ASSOCIATES, INC., et al.

HACKBERRY SHRIMP SHOP, INC. v. UNITED STATES of America.

Civ. A. Nos. 79-1261, 80-0333, 79-1276, 80-0451, 79-1296, 79-1299, 79-1303 and 79-1552.

United States District Court, W. D. Louisiana, Lafayette-Opelousas Division.

August 12, 1980.

Patrick T. Caffery, David R. Dugas, Caffery, Oubre, Gibbens & Blackwell, New Iberia, La., for plaintiff Bergeron.

Charles R. Sonnier, Cooper, Sonnier, Ortego, Hebert & Woodruff, Abbeville, La., for plaintiff Simon.

Frances O. Allen, First Asst. U. S. Atty., Shreveport, La., Joseph DiStefano, Asst. Gen. Counsel, Dept. of Energy, James P. Klapps, Dorothea Beane, A. Burton Lee, Civil Division, U. S. Dept. of Justice, Washington, D. C., for United States.

Gerald Gaudet, Voorhies & Labbe, Lafayette, La., for Benton Casing Service.

Tim McNamara, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, La., for Cactus Drilli.

Robert Clements, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, La., for La. Mud. Co.

Bernard McLaughlin, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, La., for State Farm.

Dermot S. McGlinchey, McGlinchey, Stafford, Mintz & Hoffman, New Orleans, La., for Parsons-Gilbane.

Edmund E. Woodley, Woodley, Barnett, Cox, Williams & Fenet, Lake Charles, La., for Tam International, Inc.

Fred H. Sievert, Jr., Emmett Sole, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, La., for B. J. Hughes.

Reid K. Hebert and Andrew L. Plauche, Jr., Plauche, Smith, Hebert & Nieset, Lake Charles, La., for General Motors Corp.

Victor Koock, New Orleans, La., for International Hammer Services & Tidewater International.

Meredith T. Holt, Lake Charles, La., Michael G. Terry, Vinson & Elkins, Houston, Tex., for Gulf Interstate Engineering Co.

Dennis J. Vidrine, Lafayette, La., for Louis Records and Associates, Inc.

Raymond Morgan Allen and Randall K. Theunissen, Lafayette, La., for Patterson Services, Inc. d/b/a International Hammer.

J. B. Jones, Jr., Jones, Jones & Alexander, Cameron, La., Prentiss E. Cox, Houma, La., James H. Daigle, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, La., for Pelican Well Service.

Jerry G. Jones, Jones, Jones & Alexander, Cameron, La., for Hackberry Shrimp Shop.

Joseph A. Brame, Lake Charles, La., for Commercial Union Ins. intervenor in Bergeron suits.

R. K. Christovich and A. R. Christovich, Jr., Christovich & Kearney, New Orleans, La., for Ranger Ins. Co.

RULING ON MOTION

PUTNAM, Senior District Judge.

Barbara Clostio Simon, individually and as tutrix of her minor children and also in her capacity as personal representative of the estate of her deceased husband, Clarence J. Simon, plaintiff in Suit No. 79-1276 (80-0451), and Bradley Bergeron, plaintiff in Suit No. 79-1261 (80-0333), sue the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2671 et seq., for damages flowing from the death of Mr. Simon and personal injuries sustained by Bergeron in an explosion and fire which occurred on September 21, 1978, at the West Hackberry, Louisiana, oil storage facility established by the Department of Energy as part of the Early Reserve System of the Strategic Petroleum Reserve Plan. Jurisdiction in this court is not contested.

The United States has filed a motion to dismiss and alternatively for summary judgment, availing itself of the provisions of the Louisiana Workmen's Compensation Act, Section 6, LSA-R.S. 23:1061,¹ as applied to work undertaken by the United States on property owned by it lying "within the exterior boundaries of any State." 40 U.S.C.A. § 290.²

For the purposes of this motion, we find the following facts to be uncontested:

1. Both Simon and Bergeron were employees of Pelican Well Service, Inc. and were working on a workover oil rig located at Cavern 6 of the West Hackberry storage site, on September 21, 1978.

2. Pelican Well Service, Inc. was under contract dated June, 1978, with the Strategic Petroleum Reserve Project Management Office, United States Department of Energy.³

3. On September 21, 1978, while Pelican was engaged in pulling 5½" pipe from the well, a blowout, explosion and fire occurred allegedly causing the damages sued for in these suits.

(4) The work being done at the time of the explosion and fire under the Pelican contract was work required to be done in the maintenance and operation of the storage facility designated as Cavern 6 at West Hackberry, and included pulling the 5½ inch pipe from the well leaving a 9 5/8 " hole lined only with 9 5/8 " casing to permit more effective use of Cavern 6. See affidavit of Donald Mazur, June 10, 1980. This storage facility is part of the storage facilities contemplated within the Strategic Petroleum Reserve Plan of the United States, carried out by the Department of Energy under close Congressional scrutiny.

The threshold question is whether or not the work being done by Pelican Well Service at the time of this accident was part of the ". . . trade, business or occupation . . ." of the United States, through the Department of Energy. Plaintiffs argue that in order to prevail in its Section 6 defense, the government must show that it has in fact engaged in the work done by the contractor in the regular course of its business, using its own employees. They rely upon Hudson v. Aetna Casualty Insurance Company, 299 So.2d 499 (La. App. 4 Cir. 1974), holding that it is not sufficient for a government agency to show that the enabling legislation authorized it to "construct" a facility when it in fact had never engaged in construction work for itself or the public as part of its actual business operations. Cf: Duplechin v. Pittsburgh Plate Glass Company, 265 So.2d 787 (La.App. 3 Cir. 1972), (fact that corporation was authorized to engage in certain activities by its charter could not be considered as controlling on the question of employer status under LSA-R.S. 23:1061, when it had in fact never engaged in such activities as part of its business.)

In Hudson, supra, because there was no showing in the Board's affidavit that it actually made construction of the facilities in question for its own use or for third persons a part of its actual business operations, summary judgment was improper and the case was remanded. On the other hand, in Johnson v. Greater Baton Rouge Airport District, 368 So.2d 206 (La.App. 1 Cir. 1979), and Richard v. National Surety Corporation, 99 So.2d 831 (La.App. 1 Cir. 1957), the court found no difficulty in disposing of plaintiff's claims on motions for summary judgment in the one case and on a motion of no cause of action in the other. In Johnson, the work contracted out to plaintiff's employer was mowing the grass at the airport, a necessary but incidental part of the business of operating that facility, and, in Richard, plaintiff's employer had contracted with the City of Lafayette to make power line installations at the city's new electrical power plant. The erection, maintenance and operation of the city-owned power plant and its major power lines was, in fact, part of the regular trade and business of the City under authority expressly conferred by its Legislative Charter.

The Section 6 defense rule has been much belabored of late. Blanchard v. Engine & Gas Compressor Services, Inc., 613 F.2d 65 (La. 5 Cir., 1980); Lushute v. Diesi, 354 So.2d 179 (La.1978); Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978); Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973). Cf: Vizena v. Travelers Insurance Co., 238 So.2d 238 at 241, 242 (3 Cir. 1970). In Blanchard, supra, the Court summarized the Louisiana rule as follows, viz:

"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 business similar to that of the principal customarily do this type of work or if it is an integral part of their business. 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." (Emphasis supplied. 613 F.2d 65 at 71)

This test correctly sums up the Louisiana law on this point as it now exists. We see no reason to further extend this opinion by a detailed discussion of the remaining cases cited above, the Blanchard court having already done this.

That the defense afforded by LSA-R.S. 23:1061 is made available to the United States by the adoption of Title 40 U.S.C.A. § 290, supra, n. 2, is also firmly established. Roelofs v. United States, 501 F.2d 87 (5 Cir. 1974); Stacey v. United States, 270 F.Supp. 71 (E.D. La. 1967). These cases are in accord with Louisiana law affording the defense to governmental agencies. Cf. Johnson v. Greater Baton Rouge Airport District, supra, and authorities therein cited.

In 1975 the Congress enacted P.L. 94-163, 89 Stat. 874, 42 U.S.C.A. § 6201 et seq., known as the Energy Policy and Conservation Act, having as one of its stated purposes the creation of a Strategic Petroleum Reserve (Reserve) by the Federal Energy Administration of one billion barrels of petroleum products to be held in storage to reduce the impact of severe...