Harris v. Du Pont De Nemours

• Decision Date: 21 July 1984
• Docket Number: Civ. A. No. 84-831,84-964.
• Citation: 600 F. Supp. 20
• Parties: Willie HARRIS v. DU PONT DE NEMOURS, et al. Mack F. BURNS v. E.I. DU PONT DE NEMOURS AND COMPANY.
• Court: U.S. District Court — Eastern District of Louisiana

600 F. Supp. 20

Willie HARRIS v. DU PONT DE NEMOURS, et al.

Mack F. BURNS v. E.I. DU PONT DE NEMOURS AND COMPANY.

Civ. A. Nos. 84-831, 84-964.

United States District Court, E.D. Louisiana.

July 21, 1984.

Arthur Cobb, Baton Rouge, La., for Willie Harris.

James A. George, Baton Rouge, La., for Mack F. Burns.

Harry McCall, Jr. and L. Havard Scott, III, New Orleans, La., for E.I. du Pont de Nemours & Co.

ORDER AND REASONS

CHARLES SCHWARTZ, Jr., District Judge.

This matter came before the Court on the motions of defendant, E.I. du Pont de Nemours & Company (du Pont) for summary judgment against plaintiffs, Willie Harris and Mack Burns, on the grounds that du Pont was the statutory employer of plaintiffs under Louisiana law. Considering the memoranda filed by the parties, the record herein and the law applicable to this matter, the motions were granted for the reasons set forth below.

These consolidated cases arose from an explosion and fire on July 12, 1983, at du Pont's Pontchartrain Works plant at Reserve, Louisiana. On the date of the incident in suit, plaintiffs, Willie Harris and Mack Burns, were employed by Hydro-Services, Inc., a contractor engaged by du Pont to perform hydroblasting services at the plant. Hydroblasting is a process for removal or cleaning of residue from tube bundles incorporated into the heat exchanger which is used in the manufacture of chloroprene. Specifically, in the manufacture of chloroprene, which is produced at du Pont's Pontchartrain Works, it is necessary to utilize a heat exchanger which incorporates a tube bundle, known as a calandria. This tube bundle may contain hundreds of small tubes of an inch or less in diameter. From time to time, residue collects in these small tubes and must be removed for the manufacture of chloroprene to continue. One method of removing this residue is hydroblasting, a type of high-pressure water cleaning.¹

In addition to the foregoing uncontested facts, defendant asserts that the work for which plaintiffs' employer had been engaged was identical to that for which Browning Ferris Industries had previously been employed at du Pont's Pontchartrain Works. Defendant further asserts that the factual situation described in the unreported opinion of the Fifth Circuit in Keys v. E.I. du Pont de Nemours & Company, Inc., 720 F.2d 1289 (5th Cir.1983), is the same as that which obtained on the date of the incident in suit.² That case involved a negligence action against du Pont for injuries sustained by an employee of Browning Ferris Industries while he was working at du Pont's LaPlace, Louisiana plant. The Fifth Circuit affirmed the trial court's granting of summary judgment in favor of du Pont on grounds that it was the statutory employer of plaintiff. The pertinent facts of that case are as follows:

"Until 1970, du Pont employees did the hydroblasting at LaPlace. Du Pont then began subcontracting the work at LaPlace, because it was believed to be more economical to do so. Currently, du Pont relies exclusively upon its own employees and equipment to do hydroblasting at two of its plants. At six others, du Pont uses its own employees and equipment, supplemented by contract labor as required. At plants such as La Place, where hydroblasting is required less frequently, du Pont relies entirely on contractors to do the work." at p. 2.

* * * * * *

"... du Pont assigns its own employees to perform hydroblasting services ... du Pont utilized its own employees to perform hydroblasting at its LaPlace plant for numerous years before contracting out those services ... hydroblasting is an integral and necessary part of the manufacturing process. at p. 6.

Based upon the foregoing, defendant contends that it was the statutory employer of the plaintiffs on the date of the incident in suit, and thus, is immune from tort liability.

Plaintiff Willie Harris contests that the work performed by Hydro-Services, Inc. was identical to that previously performed by Browning Ferris Industries at du Pont's Pontchartrain Works, and that this type of work was held to be part of du Pont's trade, business or occupation in the Keys case. However, plaintiff has produced no countervailing evidence in this regard.

Plaintiff Mack Burns contends that the following material facts are at issue: (1) Since 1970, no du Pont employee has done hydroblasting work. Du Pont did not customarily engage in hydroblasting and it was therefore not a part of its trade, business or occupation; (2) Du Pont did not own or otherwise possess hydroblasting equipment on July 12, 1983; (3) Hydroblasting is not a part of du Pont's usual and customary practice in the manufacture of chloroprene because du Pont's employees have not done hydroblasting work since 1970; (4) Since 1970, du Pont has contracted with independent contractors, including Hydro-Services, Inc., and only employees of independent contractors have done hydroblasting work at the du Pont LaPlace plant since 1970; and (5) All hydroblasting work done by contractors at du Pont's plant in LaPlace since 1970 has been done with equipment owned and/or operated by the independent contractors and not with equipment owned or otherwise possessed by du Pont.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.Rules Civ.Proc. The party seeking summary judgment has the burden of showing that there is no material fact in dispute, and every reasonable inference arising from the record must be resolved in favor of the party opposing the motion. Penton v. Crown Zellerbach Corporation, 699 F.2d 737 (5th Cir.1983). However, when a motion for summary judgment is supported in the manner provided in Rule 56(c) the response of an adverse party, "by affidavits or ... otherwise ... must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Fed. Rules Civ.Proc.

Under Louisiana law, specifically, L.S. A.-R.S. 23:1061, a principal is the "statutory employer" of its contractor's employee when the contractor is engaged to perform work which is part of the "trade, business or occupation" of the principal. When a statutory employment relationship exists, the statutory employer is liable for workmen's compensation benefits to the employees of the contractor, and an injured employee's claims against the statutory employer is limited to such benefits. L.S.A.R.S. 23:1032.

In Lewis v. Exxon Corp., 441 So.2d 192, opinion on rehearing, 441 So.2d 197 (La. 1983), the Louisiana Supreme Court recently set forth the test for whether a statutory employment relationship exists, as follows:

"First, the `work' must be part of the principal's `trade, business or occupation.' Second, the principal must have been engaged in that trade,

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