Cubbage v. Averett

Decision Date02 October 1980
Docket NumberNo. 80-3099,80-3099
Citation626 F.2d 1307
PartiesDaniel CUBBAGE, Plaintiff-Appellant, v. Gerald L. AVERETT and Southern Farm Bureau and Insurance Company, Defendants-Appellees. Summary Calendar. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

Thomas M. Willmott, Neil C. Hall, III, Metairie, La., for plaintiff-appellant.

Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr., New Orleans, La., for defendants-appellees.

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

Before BROWN, POLITZ and TATE, Circuit Judges.


The plaintiff Cubbage was severely injured in a gas explosion that occurred in his living quarters on his employer's premises. He sued his employer and its insurer in tort. He appeals from the dismissal of his suit pursuant to the grant of summary judgment to the defendants. The defendants' motion was grounded on the alleged exclusivity of a state workmen's compensation remedy. We reverse the district court's summary judgment because of genuine dispute as to material fact.

Undisputed Factual Showing

Cubbage was hired as a farmhand by his employer, Averett, to milk cows. He was allowed by Averett to reside in a vacant house on Averett's farm. Cubbage was to milk the cows twice daily, starting about 3:00 a. m. and 2:00 p. m., with the milkings lasting about three hours each.

Cubbage worked only one full day, February 28, 1979. Having completed the evening milking, Cubbage went back to the house, prepared some food on a hot plate, ate, and sat on his bed. He then lit a cigarette with a cigarette lighter. A violent gas explosion then occurred. As a result Cubbage sustained serious personal injuries.

The district court granted summary judgment in favor of the defendants-appellees because it found that Cubbage's use of the house was "incidental to employment." As a result, the court stated that state workmen's compensation was Cubbage's exclusive remedy.

The Threshold Issue

The threshold issue of this case is whether or not there is any genuine issue of material fact which precludes summary judgment.

A Disputed Issue of Material Fact Precludes Summary Judgment

Summary judgment may be granted only if it appears from the pleadings, depositions, admissions, and affidavits, considered in the light most favorable to the opposing party, that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 468, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962); Keating v. Jones Development of Missouri, Inc., 398 F.2d 1011, 1013 (5th Cir. 1968); Harvey v. Great Atlantic & Pacific Tea Co., Inc., 388 F.2d 123, 124 (5th Cir. 1968).

The motion for summary judgment was decided on the basis of depositions from the plaintiff Cubbage and the employer (Averett), and of affidavits of the plaintiff and his brother. In holding that workmen's compensation was the exclusive remedy (and therefor granting summary judgment dismissing Cubbage's suit), the district court resolved conflicting statements and inferences and held that the house provided by Cubbage to Averett was "incidental to employment." Under Louisiana compensation law, an employee who lives on his employer's premises may be entitled to workmen's compensation, under certain circumstances, for injuries resulting from a premise accident arising out of the employment or, sometimes, if required by his work to be on the premises at the time. Malone, Louisiana Workmen's Compensation, Section 170, see also 229 (1952). See, e. g. LeCompte v. Kay, 156 So.2d 75 (La.App. 1st Cir. 1963); Ivory v. Philpot Construction Co., 145 So. 784 (La.App. 2d Cir. 1933.)

The contradictory affidavits and depositions, which permit conflicting inferences, do not establish as a matter of law that, for such reason, the injured employee was entitled to workmen's compensation from, and thereby barred from a tort remedy against, his employer. Both parties admitted that the living...

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    ...issue of a material fact requiring a trial. See Cole v. Elliott Equip. Co., 653 F.2d 1031 (Former 5th Cir. 1981); Cubbage v. Averett, 626 F.2d 1307 (5th Cir. 1980); Bernard v. Gulf Oil Co., 596 F.2d 1249 (5th Cir. 1979), appeal after remand, 619 F.2d 459 (5th Cir. 1980) (en banc), aff'd, --......
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