Duplechin v. Pittsburgh Plate Glass Co.

• Decision Date: 18 July 1972
• Docket Number: No. 3861,3861
• Citation: 265 So.2d 787
• Parties: Frank J. DUPLECHIN, Plaintiff-Appellee, v. PITTSBURGH PLATE GLASS COMPANY et al., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 787

265 So.2d 787

Frank J. DUPLECHIN, Plaintiff-Appellee, v. PITTSBURGH PLATE GLASS COMPANY et al., Defendant-Appellant.

No. 3861.

Court of Appeal of Louisiana, Third Circuit.

July 18, 1972.

Rehearing Denied Sept 13, 1972.

Holt & Woodley by Edmund E. Woodley, Lake Charles, for defendant-appellant.

Maurice L. Tynes, Camp, Carmouche, Palmer, Carwile & Barsh by Harry E. Barsh, Jr., Lake Charles, for plaintiff-appellee.

Plauche , Smith & Hebert by James R. Nieset, Stockwell, St. Dizier, Sievert & Viccellio by Fred H. Sievert, Jr., McHale & Bufkin, by Louis D. Bufkin, Lake Charles, for defendants-appellees.

Before FRUGE , SAVOY and DOMENGEAUX, JJ.

SAVOY, Judge.

Plaintiff, Frank J. Duplechin, filed this suit in tort, seeking damages for personal injuries arising from an explosion which occurred October 10, 1968, on the premises of Pittsburgh Plate Glass Company (hereinafter called PPG) in Calcasieu Parish. Suit was brought against PPG; Travelers Insurance Company, as liability insurer of PPG; Robert E. Baker, William L. Smith, Jr., Theodore C. Sachs, Ben F. Spalding, Clifford R. Stacy, Alvin T. Raetzsch, Dewey L. Duncan, and Everett L. Cook, all of whom were employees of PPG; Sargent & Lundy; Donald Q. Schultz, an employee of M. W. Kellogg Company; Layne-Louisiana Company, Inc.; Gulf States Utilities Company; and Associated Indemnity Company.

Plaintiff's suit against Layne-Louisiana Company, Inc., Associated Indemnity Company, and Gulf States Utilities Company was dismissed before the trial on motions of summary judgment. This dismissal was not appealed.

Travelers Insurance Company, as the workmen's compensation insurer of M. W. Kellogg Company (plaintiff's employer), intervened to recover benefits and medical expenses paid to plaintiff.

Following a jury trial, a verdict was rendered in favor of plaintiff and against PPG in the sum of $172,000.00. The verdict further provided that Travelers, as intervenor, was entitled to recover previously paid workmen's compensation benefits and medical expenses totaling $23,840.21. All remaining defendants were absolved of any liability.

FACTS

Sometime prior to the accident, PPG had contracted with Sargent & Lundy, an engineering management firm, to design and coordinate the construction of an additional facility for the generation of electrical power for its plant in Calcasieu Parish. The actual construction was performed by several contracting firms, all under the direction and control of Sargent & Lundy. One of these contracting firms was M. W. Kellogg Company, plaintiff's employer.

On October 10, 1968, construction was more than 80% Complete and was described as being in the 'punch list stages'. On the morning of that day, plaintiff, a fellow pipefitter and a welder had been assigned the task of straightening or 'plumbing' a nipple located on top of a water collection tank which was part of the project underway. Upon discovering that the nipple was not 'plumb' in its screwed connection, plaintiff ordered the welder to light an acetylene torch to heat the nipple in order that it could be bent into a plumb position.

At the time of this activity, there was water flowing through the tank from the demineralizer system and being discharged into the Calcasieu River. Plaintiff testified that while heating of the nipple was in process, a small flake of metal fell down into the interior of the tank, immediately after which he heard a sizzling noise and an explosion occurred.

As a result of this explosion, plaintiff sustained multiple injuries to his face and head for which this action was instituted.

DEFENSE OF EXCLUSIVE REMEDY

Defendant-appellant, PPG, urges first that plaintiff-appellee's remedy does not lie in tort, but rather this action is one in which workmen's compensation is the exclusive remedy.

LSA-R.S. 23:1061 provides, in 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 or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor 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; . . ..'

If defendant-appellant were found to be a 'principal' or 'statutory employer' under Section 1061 above, then workmen's compensation would be the exclusive remedy against him, and the action in tort would be barred. LSA-R.S. 23:1032.

We note at the outset that, 'The plea of 'statutory employer' under the provisions of LSA-R.S. 23:1061, . . ., is an affirmative plea and the burden of proof is upon the party asserting it. This burden must be discharged by a preponderance of the evidence.' James v. Lykes Brothers S.S. Company, 175 So.2d 444 (La.App. 4 Cir. 1965.) See also Young v. First National Life Insurance Company, 159 So.2d 395 (La.App. 2 Cir. 1963).

The court, in Doss v. American Ventures, Inc., 224 So.2d 470 (La.App. 4 Cir. 1969), (writ den.), noted that:

'Whether contracted work is part of the 'operation' of the business (as opposed, e.g., to original construction or reconstruction of one of its facilities) has been utilized as a factor in determining whether the work is a part of the business within the meaning of Section 1061 in Horrell v. Gulf & Valley Cotton Oil Company, 15 La.App. 603, 131 So. 709, and was emphasized as a determining factor in Finn v. Employers' Liability Assurance Corporation, La.App., 141 So.2d 852, 869. * * *.'

So, the distinction that has been drawn is this: ordinary maintenance and repairs are part of an employer's regular business, trade or occupation, and construction of a new facility or complete reconstruction of an existing facility are not part of an employer's regular business, trade or occupation.

We elaborated recently on this distinction in Frey v. Brown, 254 So.2d 491 (La.App. 3 Cir. 1971), where we stated that:

'Both Ball v. Kaiser Aluminum & Chemical Corporation, supra, (112 So.2d 741 (La.App. 1959)) and Moak v. LinkBelt Belt (Co.), supra, (229 So.2d 395 (La.App. 1969)) relied upon by plaintiff involved new construction or reconstruction of the principal's facility and because this involved new construction or reconstruction the court held that the employees of subcontractors so engaged could sue the principal in tort. In neither case was it shown that the principal was normally engaged in the business of construction or reconstruction of its facilities and therefore its liability to injured employees of subcontractors was not limited to workmen's compensation under LSA-R.S. 23:1061. This is not the case here. Plaintiff admittedly was in the process of repairing the laydown machine, which operation we have determined is an integral part of Comet's occupation of operating drilling rigs. * * * Plaintiff's sole remedy against Comet is under the Louisiana Workmen's Compensation Act.'

However, defendant - appellant PPG, argues that it is no longer the law that an employer must be in his regular trade, business or occupation in order to restrict an employee's rights to recovery under worken's compensation. To support this argument, PPG cites the recent case of Gray v. Louisiana Power & Light Company, 247 So.2d 137 (La.App. 4 Cir. 1971) (cert. den. 259 La. 59, 249 So.2d 202 (1971)). It is contended that this case should be interpreted as meaning that anything authorized by the articles of incorporation of a business is equivalent to an employer actually being in that trade, business or occupation for purposes of bringing the case under LSA-R.S. 23:1061. The Restated Articles of Incorporation of PPG provide that one of the purposes of the corporation is 'to engage in building construction, as contractor or otherwise'.

We feel that while it may be inferred from the Gray case, supra, that an important factor in determining what the trade, business or occupation of a corporation is, is whether particular work is specifically authorized by the charter of the corporation, that case did not abolish the traditional requirement that the work being done should be a part of the Regular trade, business or occupation of the corporation in order for LSA-R.S. 23:1061 to apply. In fact, the court in that case specifically found that the work being done was 'an integral and a necessary part of the regular trade, business or occupation' of the corporation which contracted for the work.

Our reading of the Gray case, supra, indicates that nothing is said in the opinion which would abolish or alter the distinction which we have drawn in the past between ordinary repairs or maintenance and new construction.

There is no question that the work which was being done in the instant case was the completion of new construction of an additional facility for PPG. It was in no way a tie-in or a cut-in to previously existing facilities of PPG. Therefore, we find that this construction was not a part of the regular trade, business or occupation of PPG.

Consequently, we find no error in the jury's verdict that the work being performed by plaintiff was not under the provisions of LSA-R.S. 23:1061, and that plaintiff was entitled to bring this action in tort.

CAUSE OF THE EXPLOSION

The parties in this action called as witnesses two experts in the investigation of explosions. Witness for plaintiff was Cecil Shilstone, while defendant PPG's expert was Frank Weaver.

Mr. Shilstone concluded that methane gas was the cause of the explosion. Mr. Weaver concluded that the ignition of acetylene was the cause. Their testimony does not appear to be reconcilable.

The factors which indicate that methane caused the explosion are:

There is no dispute that methane was present in the water in the tank which exploded....