Howard v. Vulcan Materials Company
| Decision Date | 03 June 1974 |
| Docket Number | No. 74-1469 Summary Calendar.,74-1469 Summary Calendar. |
| Citation | 494 F.2d 1183 |
| Parties | Charles W. HOWARD, Jr., Plaintiff-Appellant, v. VULCAN MATERIALS COMPANY, Defendant and Third Party Plaintiff-Appellee, v. AAA CONTRACTING COMPANY, INC., Third Party Plaintiff and Third Party Defendant-Appellant, v. The TRAVELERS INSURANCE COMPANY, Third Party Defendant and Intervenor-Appellant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William A. Norfolk, Baton Rouge, La., for Travelers.
Thomas E. Cooper, Jr., Rayville, La., Jack C. Benjamin, New Orleans, La., for Howard.
Sam J. D'Amico, Baton Rouge, La., for AAA Contracting.
Emile C. Rolfs, III, Calvin E. Hardin, Jr., Baton Rouge, La., for Vulcan.
Before BELL, SIMPSON and MORGAN, Circuit Judges.
Appellant Howard brought this tort action against Vulcan Materials to recover for personal injuries suffered while engaged in waste disposal activities at Vulcan's plant. At the time he was employed by AAA Contracting Co., which contracted to perform various tasks for Vulcan. The issue is whether Howard was a statutory employee of Vulcan for the purposes of the exclusive liability provisions of Louisiana's Workmen's Compensation Act, La.Rev.Stat. Ann. § 23:1021 et seq. Concluding that he was, under the undisputed facts, the district court granted Vulcan's motion for summary judgment. We affirm.
Section 23:1061 of the Louisiana compensation act provides that a contractor's employees are to be treated as employees of the principal employer where the contractor performs work which is a part of the "trade, business, or occupation" of the principal. Louisiana and Fifth Circuit cases have clearly established that contracted work is a part of the principal's "trade, business, or occupation" if it is so necessary to its operation that, save for the contractor, it "would have to hire workers of its own to perform the task." Cole v. Chevron Chemical Co., 5 Cir., 1973, 477 F.2d 361, 365. See also, Duhon v. Texaco, Inc., 5 Cir., 1974, 490 F.2d 91; Leger v. Amerada Hess Corp., 5 Cir., 1973, 479 F.2d 1250; Foster v. Western Electric Co., La.App., 1972, 258 So.2d 153; Goodwin v. United States Rubber Co., La.App., 1966, 186 So.2d 356.
Under these cases, Howard was a statutory employee of Vulcan, since the disposal of waste generated by the plant's normal operations was so necessary that in the absence of an available contractor Vulcan would have to, and in fact did, use its own employees to perform the task.
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Lee v. Chevron Oil Co.
...this employer, or employers in a similar business, would ordinarily do through employees . . . ." Also see Howard v. Vulcan Materials Company, (5 Cir. 1974), 494 F.2d 1183, 1184, wherein the court stated that contracted work is a part of the principal's trade, business, or occupation if it ......
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Howard v. Vulcan Materials Company
...(AAA) against its insurer, The Travelers Insurance Company (Travelers) for the costs of defense in this matter. Howard v. Vulcan Materials Co., 494 F.2d 1183 (CA 5—1974). The sole question for determination is whether Travelers was obligated to defend AAA in this action. For the following r......
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Howard v. Vulcan Materials Co.
...had no duty to defend Vulcan under its contract with AAA, the award of attorneys' fees and costs is REVERSED. 1 Howard v. Vulcan Materials Co., 494 F.2d 1183 (5th Cir. 1974).2 Thus, if, assuming all the allegations of the petition to be true, there would be both (1) coverage under the polic......