Forno v. Gulf Oil Corp.

• Decision Date: 11 March 1983
• Docket Number: No. 82-3614,82-3614
• Citation: 699 F.2d 795
• Parties: Carlos E. FORNO, Plaintiff-Appellant, Travelers Insurance Company, Plaintiff-Intervenor-Appellant, v. GULF OIL CORPORATION, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 795

699 F.2d 795

Carlos E. FORNO, Plaintiff-Appellant Travelers Insurance Company, Plaintiff-Intervenor-Appellant, v. GULF OIL CORPORATION, Defendant-Appellee.

No. 82-3614

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 11, 1983.

Reed & Reed, Floyd J. Reed, New Orleans, La., for plaintiff-appellant.

James F. Ryan, New Orleans, La., for Travelers Ins. Co.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, La., for defendant-appellee.

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

Before GEE, RANDALL and TATE, Circuit Judges.

TATE, Circuit Judge:

In this Louisiana diversity action, the plaintiff Forno sues Gulf Oil Corporation in tort for personal injuries sustained due to an alleged premise defect. At the time of the injury, Forno was working as a painter employed by a subcontractor engaged to perform routine painting maintenance at Gulf's plant. The district court granted Gulf's motion for summary judgment and dismissed Forno's suit upon its holding, on the basis of statements of uncontested fact and affidavits, that Forno was a "statutory employee" of Gulf and thus relegated to Louisiana workmen's compensation benefits as his exclusive remedy. La.R.S. 23:1032, 1061. We affirm.

The statements of uncontested facts and the affidavit show, most pertinently: Although painting maintenance at Gulf's Bell Chase plant (where the accident occurred) is mostly done through independent contractors, Gulf often utilized its own employees to perform painting maintenance in its other facilities throughout the United States and, for instance, in its Port Arthur facility exclusively used its own maintenance employees exclusively for such painting work. Forno's opposing response did not deny these averments of the affidavit, instead stating that they were "irrelevant and immaterial".

Under the Louisiana workman's compensation statute, a principal who contracts to have work performed that is part "of his trade, business or occupation" is nevertheless liable for workmen's compensation benefits to the contractor's employees. La.R.S. 23:1061. If so, the injured employee's compensation remedy against the principal (his "statutory employer") is exclusive, thus barring recovery in tort. La.R.S. 23:1032 (Supp.1981). The general purpose of these provisions is to prevent an employer from evading compensation liability by contracting out part of his regular work to independent contractors. Williams v. Shell Oil Company, 677 F.2d 506 (5th Cir.1982); Malone and Johnson, Louisiana Civil Law Treatise: Worker's Compensation, Secs. 121-127 (2d ed. 1980).

Thus, where the work in which a subcontractor's employee is injured is shown to be work that is customarily performed by the principal's own employees, the employee may be considered a "statutory employee" entitled to workmen's compensation but not tort recovery from the principal. Blanchard v. Gulf Oil Corporation, 696 F.2d 395, 396 (5th Cir.1983) (the principal supported its successful motion for summary judgment with affidavits to the effect that its own employee-mechanics were qualified to and did perform the same maintenance work as that in which the subcontractor's employee was injured); Barrios v. Engine & Gas Compressor Services, Inc., 669 F.2d 350, 355 (5th Cir.1982); Blanchard v. Engine & Gas Compressor Services, Inc., 613 F.2d 65, 71 (5th Cir.1980); Barnes v. Sun Oil Company, 362 So.2d 761, 764 (La.1978). In these instances, upon undisputed showing to this effect, the principal may be entitled to summary judgment dismissing a tort suit against it by the subcontractor's employee. Blanchard v. Gulf Oil Corporation, supra; Barrios v. Engine & Gas Compressors, Inc., supra; Barnes v. Sun Oil Company, supra.

Accordingly, the district court did not err in granting summary judgment in this case.

The plaintiff Forno relies, however, upon Freeman v. Chevron Oil Company, 517 F.2d 201 (5th Cir.1975). There, the court reversed a grant of judgment notwithstanding the verdict that had dismissed a contractor's employee's tort suit against a principal. The court there noted that issues "of the kind presented ... are peculiarly dependent for their resolution upon...