Boudreaux v. Freeport Chemical Co.

• Decision Date: 28 February 1991
• Docket Number: No. 90-CA-0257,90-CA-0257
• Parties: Michael and Dale BOUDREAUX v. FREEPORT CHEMICAL COMPANY. 576 So.2d 615
• Court: Court of Appeal of Louisiana — District of US

Page 615

576 So.2d 615

Michael and Dale BOUDREAUX v. FREEPORT CHEMICAL COMPANY.

No. 90-CA-0257.

576 So.2d 615

Court of Appeal of Louisiana Fourth Circuit.

Feb. 28, 1991.

Estelle E. Mahoney, Louis J. St. Martin, Houma, for plaintiffs/appellants.

William B. Gibbens III, Gibbens & L'Hoste, New Orleans, for defendant/appellee.

John F. Young Jr., Richard G. Duplantier, Jr., Hebert, Mouledoux & Bland, New Orleans, for intervenors/appellants.

Before ARMSTRONG, PLOTKIN and BECKER, JJ.

ARMSTRONG, Judge.

Plaintiffs, Michael and Dale Boudreaux, husband and wife, (hereinafter Michael will be referred to as "plaintiff") instituted this action against Freeport Chemical Company (hereinafter "Freeport"), seeking damages incurred as a result of injuries sustained by Michael Boudreaux while performing work for his employer, C.E.I. Fabricators, Inc. (hereinafter "C.E.I."), which had contracted to perform work for Freeport at its Uncle Sam Chemical Plant in Convent, Louisiana. Freeport moved for a summary judgment on the ground that it was the "statutory employer" of plaintiff, and thus was liable to him only in worker's compensation, not in tort. The trial court granted Freeport's motion, dismissing plaintiffs' suit against it. From this judgment plaintiffs now appeal.

A summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Charles v. Faust, 487 So.2d 612 (La.App. 4th Cir.1986). Summary judgments are not favored and any doubt will be resolved against the granting thereof. Civello v. Johnson, 567 So.2d 643 (La.App. 4th Cir.1990), writ denied, 569 So.2d 987 (La.1990). The mere belief that a litigant will be unlikely to prevail at trial is not a sufficient basis to warrant the granting of a summary judgment. Civello v. Johnson, supra; Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4th Cir.1976).

The issue on appeal is whether there is any genuine issue as to material fact concerning Freeport's status as a "statutory employer."

La.R.S. 23:1061, as in effect at the time of plaintiff's injury, provided in pertinent part:

"Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation ... and contracts with any person (in this section referred to as contractor) for the execution by ... of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer...."

The principal referred to in La.R.S. 23:1061 is considered the "statutory employer" of an employee of the company with whom the principal contracts for the execution of its work. Under La.R.S. 23:1032, if an employee of a contractor is injured while executing the work of the principal, which work the principal was engaged in at the time of the employee's injury, the employee's remedy against the principal is limited to benefits under the Louisiana Workers' Compensation Law. In such a case the statutory employer/principal is immune from suit in tort by the contractor's employee.

In Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986), the Louisiana Supreme Court set out in detail the analysis used to determine whether a statutory employment relationship exists. The court stated:

"Basically, a determination of whether a statutory employment relationship exists involves a three level analysis. In the first level, the primary focus is on the scope of the contract work. 'The specific task to which an individual employee is put should not be determinative of his coverage under the Act. Instead, the entire scope of the work contract must be considered.' The central question to be answered is whether the contract work is specialized or non-specialized. This is of course a question of fact, and courts should consider whether the contract requires a degree of skill, training, experience, education and/or equipment not normally possessed by those outside the contract field. If it is determined that the contract work is specialized per se, as a matter of law the work is not a part of the principal's trade, business or occupation, and the principal is not the statutory employer of the specialized contractor's employees. In this situation, 'the purpose behind the rule is not violated and the reason for holding the principal directly liable in compensation exclusively does not come into play' because the contractor is an independent business enterprise, rather than a mere intermediary interposed to avoid compensation responsibility.

"If it is determined that the contract work is non-specialty, then the inquiry shifts to a comparison of the principal's trade, business or occupation and the contract work to see if the latter can be considered a part of the principal's trade, business or occupation. The jurisprudence has forged several guidelines, in no way exhaustive, which can aid a court in resolving this factual issue:

(1) Is the contract work routine and customary? That is, is it regular and predictable? Nonrecurring or extraordinary constructions and repairs usually are outside the scope of the statute. On the other hand, general maintenance and repair work, by their very nature allow the smooth and continued operation of the principal, are within the scope of coverage.

(2) Does the principal have the equipment and/or manpower capable of performing the contract work? This is a sub-species of the specialty inquiry. Here the primary focus is on determining whether the contract work as relates to the principal is handled ordinarily through employees.

(3) What is the practice in the industry relative to the contract work? Do industry participants normally contract out this type of work or do they have their own employees perform the work?

"These guidelines are not absolute or rigid, but are instead to be applied relatively, taking into consideration the size, complexity, integration (either horizontal or vertical), or the lack thereof, etc. of the principal. What may be nonrecurring to a small concern, may for an industry giant be regular. Similarly while the type of contract work may be non-specialized (i.e. manual labor), for a small concern it may well be beyond the expertise or capability of its employees. Basically, the factors developed by the jurisprudence strive to answer the overriding question of 'whether [the contract work] is, in that business, normally carried on through employees rather than independent contractors.'

"Lastly, the court must determine if the principal is engaged in the work at the time of the alleged accident. La.R.S. 23:1032. At this level '[i]t is irrelevant that the principal has the financial resources or expertise to enter into a particular trade, business or occupation. In order for any person to come within the scope of the statute, he must be engaged in the enterprise at the time of the injury.' "

(citations omitted)

Plaintiff was injured working at the Freeport plant on the morning of June 8, 1987, the first day of his job with his immediate employer, C.E.I. He was working with a handful of other workers, including at least two Freeport employees, removing a section of fiberglass duct pipe when he fell from a handrail on which he was standing.

The record contains a "Letter Agreement" dated July 1, 1987, submitted by C.E.I. to Freeport, providing that C.E.I. would furnish Freeport with "skilled craftsmen and safety equipment at Freeport's Uncle Sam plant." The agreement further provided that that all work performed by C.E.I. meet the approval of Freeport's engineers or inspectors, but that the detailed manner and method of doing the work be under the control of C.E.I.--Freeport was to be only interested in the results obtained and C.E.I. was to be considered an independent contractor. ¹

Plaintiffs submit that the agreement between Freeport and C.E.I. established that the work to be performed under the contract was specialized. They also submit that the agreement "rendered" the contract work specialized per se, and thus, as a matter of law, not a part of Freeport's trade, business or occupation.

The agreement did not specify the type of work C.E.I. workers would be performing, nor did it specify what skills they, as "skilled craftsmen," need possess. There is in the record a letter from C.E.I. to Freeport, dated June 2, 1987, in which C.E.I. quotes "the following rates for furnishing skilled craftsmen for your turnaround." Rates are quoted for a "working foreman," and for "pipe welders" and "fitters." The rates included the craftsmen and necessary safety equipment. Depositions and affidavits filed in support of and in opposition to Freeport's motion for summary judgment established that approximately forty C.E.I. employees were to be used by Freeport in the performance of its "turnaround" maintenance of the Uncle Sam Plant. A Freeport employee, Anthony Calcagano, explained in his affidavit what "turnaround" is. He stated:

"Turnaround is a process whereby the plant or a portion of the plant is shutdown and the machinery and piping systems are cleaned, refurbished, overhauled or replaced. The object of turnaround is to bring the plant back up to optimal efficiency so that it operates as well as it did when it was first constructed."

Calgano, stated that "general mechanics" at Freeport did turnaround work. General mechanics performed a number of services at the plant each day...