Johnson v. Motiva Enters. LLC

• Decision Date: 30 October 2013
• Docket Number: No. 13–CA–305.,13–CA–305.
• Citation: 128 So.3d 483
• Parties: Vincent E. JOHNSON v. MOTIVA ENTERPRISES LLC, Anastasia Coleman, Mike Johnson and Corey E. Bazile.
• Court: Court of Appeal of Louisiana — District of US

128 So.3d 483

Vincent E. JOHNSON

v.MOTIVA ENTERPRISES LLC, Anastasia Coleman, Mike Johnson and Corey E. Bazile.

No. 13–CA–305.

Court of Appeal of Louisiana, Fifth Circuit.

Oct. 30, 2013.

Richard C. Stanley, Jennifer L. Thornton, Michelle M. Scelson, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.

Richard P. Voorhies, III, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.

Mary S. Johnson, Jill T. Losch, Ingrid M. Kemp, Attorneys at Law, Johnson Gray McNamara, LLC, Mandeville, LA, Chad J. Mollere, S. Suzanne Mahoney, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.

Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.

ROBERT M. MURPHY, Judge.

In this matter, plaintiffs Vincent E. Johnson ¹ and his three minor children ² seek reversal of the trial court's judgment that found Motiva Enterprises, L.L.C. (“Motiva”) to be plaintiff's statutory employer, thus limiting his remedy against Motiva and its named employees to workers' compensation rather than in tort. Plaintiffs further appealed the trial court's upholding the constitutionality of La. R.S 23:1061(A)(3), the statutory employer immunity provision as amended in 1997 and the denial of plaintiffs' request for declaratory judgment. For the reasons that follow, we affirm the trial court's judgment in its entirety.

FACTS AND PROCEDURAL HISTORY

In 2009, Shell Oil Company as Buyer and AbClean, Inc. as Vendor contracted such that Shell would be entitled to statutory employer status for the tank cleaning work AbClean employees performed in Louisiana. The contract listed Shell and its affiliates including Motiva Enterprises, L.L.C. and included work locations such as the Motiva refinery in Norco, Louisiana.

Plaintiff Vincent Johnson worked as an environmental cleanup truck driver for United States Industrial Services, Inc. (“USIS”), the successor entity of AbClean following a reorganization on December 31, 2009. On January 16, 2010, Johnson drove a USIS cleanup truck to the Motiva Norco refinery to perform tank cleaning. A few minutes into the removal process, Motiva's operator appellee/defendant Anastasia Coleman asked plaintiff to disengage the truck's vacuum line so that she could take a sample. Coleman was soon replaced by Mike Johnson ³ before plaintiff had finished his task. The site supervisor, appellee/defendant Corey Bazile, instructed plaintiff to recommence pumping. When vapors collected in the area, Bazile allegedly told plaintiff to move the USIS truck. Plaintiff contended that Mike Johnson assured him that the valves were closed. The valves, which had remained open, allegedly sprayed carcinogenic materials, including benzene, onto plaintiff causing damages. Plaintiff alleged that Motiva failed to report the incident and delayed providing him medical attention. Plaintiff was ordered not to return to work. He contended that the incident caused multiple polyps in his gall bladder which later had to be removed. He further claimed mental anguish and depression caused by the incident.

Plaintiff received workers' compensation benefits from AbClean/USIS; on June 10, 2010, he filed a tort claim in the district court against Motiva and individual employees Coleman and Bazile (collectively “appellees”). Defendants Motiva and Coleman filed exceptions of no cause of action and no right of action, claiming Motiva's statutory employer status and immunity in tort. On November 8, 2010, plaintiff filed a first supplemental and amending petition adding claims of his three minor children and seeking declaratory relief that the statutory provision providing for tort immunity for statutory employers pursuant to a written contract, La. R.S.23:1061(A)(3)⁴, is unconstitutionalas applied here. Plaintiffs claimed that the provision at issue, La. R.S. 23:1061(A)(3)⁵, violated equal protection, due process, and access to the courts. The defendants reurged their exceptions to the original petition and raised exceptions of no cause of action to the constitutional challenge.

On April 8, 2011 after permitting additional arguments on the exceptions and constitutional issues, the trial court sustained Motiva's exceptions, finding Motiva to be a statutory employer and thus immune to plaintiffs' suit in tort; the trial court declined to reach the constitutional issue and dismissed the case. Plaintiffs appealed.

On May 8, 2012, this Court vacated the trial court's April 19, 2011 judgment in its entirety, found that the trial court should have ruled on the constitutionality of La. R.S. 23:1061(A)(3), and remanded. Johnson v. Motiva Enterprises, L.L.C., 11–949 (La.App. 5 Cir. 5/8/12), 95 So.3d 1086. The parties filed supplemental memoranda; on June 29, 2012, the trial court heard oral argument and took the matter under advisement.

On July 23, 2012, the trial court found the 1997 statutory amendment adding statutory employer tort immunity based on contract to the Louisiana Workers' Compensation Act (“LWCA”) to be constitutional; it denied plaintiffs' motion for declaratory judgment and granted Motiva's exceptions of no cause of action and no right of action. The trial court found that defendants were entitled to tort immunity under La. R.S. 23:1032 & 23:1061(A)(3).

ASSIGNMENTS OF ERROR

Appellants assigned the following errors in the trial court's July 23, 2012 judgment:

1. The trial court erred in not applying the correct legal standard to the evidence presented by the parties on Motiva's exception of no right of action by not resolving all disputes in favor of Mr. Johnson.

2. The trial court erred in finding that there was a written contract between Motiva and USIS, Mr. Johnson's employer on the date of the accident, which made Motiva the statutory employer of Mr. Johnson pursuant to La. R.S. 23:1061(A)(3).

3. The trial court erred in finding that Motiva is entitled to statutory employer status under the LWCA despite the ambiguities contained in the contract between Shell Oil Company and AbClean, the predecessor of USIS, on which Motiva relies, as to whether AbClean's employees are independent contractors or statutory employees.

4. The trial court erred in not applying the reasoning and holding of Prejean v. Maintenance Enterprises, Inc., 08–0364 (La.App. 4 Cir. 3/25/09), 8 So.3d 766, to invalidate the provision of the Agreement that purports to confer tort immunity on Motiva.

5. The trial court erred in granting Motiva's exception of no right of action as to Mr. Johnson's claims for mental injuries, which Motiva did not demonstrate fell within the scope of the LWCA.

6. The trial court erred in applying the correct legal standard to Motiva's exception of no cause of action by failing to resolve all doubts in favor of the sufficiency of the petition.

7. The trial court erred in denying Mr. Johnson's request for declaratory judgment declaring La. R.S. 23:1061(A)(3) of the LWCA to be unconstitutional.

8. The trial court erred in finding La. R.S. 23:1061(A)(3) constitutional in that it arbitrarily and capriciously discriminates among similarly injured employees.

9. The trial court erred finding La. R.S. 23:1061(A)(3) constitutional in that its application to this case allows third parties to divest Mr. Johnson of his vested property interest and access to courts.

STANDARD OF REVIEW

No right of action. The determination of whether a plaintiff has a right of action is a question of law, which the appellate court reviews de novo. Caro Properties (A), L.L.C. v. City of Gretna, 08–248 (La.App. 5 Cir. 12/16/08), 3 So.3d 29, 31.

No cause of action. The appellate court reviews a trial court's ruling sustaining an exception of no cause of action de novo because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Guidry v. Hanover Ins. Co., 09–220 (La.App. 5 Cir. 11/10/09), 28 So.3d 426, 429. The Court rejects defendants' position that the trial court's ruling is protected by manifest error.

Constitutionality. The standard of review of a trial court's ruling declaring the constitutionality of a statute is de novo. Louisiana Mun. Ass'n v. State., 04–0227 (La.1/19/05), 893 So.2d 809, 842–43.

LAW AND ANALYSIS

Assignments of error one through six relate to the trial court's finding Motiva to be plaintiff's statutory employer.

No right of action in tort. Appellants contend that appellees have not sustained their burden to prove that appellant does not have a right of action. See Robertson v. Sun Life Financial, 09–2275 (La.App. 1 Cir. 6/11/10), 40 So.3d 507, 512. This Court, on de novo review, is asked to determine whether the appellant belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Caro Prop., supra, 3 So.3d at 32.

Appellants argue that they can sue appellees in tort because Motiva is not entitled to statutory employer status for the following reasons: Motiva was not a party to the contract; that the contract is ambiguous as to whether AbClean's employees are classified as Shell's independent contractors; and that the contract is unenforceable under Prejean, supra.

The appellees contend that the trial court properly held that appellants have no right of action against appellees to recover damages in tort, because a written contract exists identifying Shell affiliate Motiva as appellant's statutory employer under La. R.S. 23:1061(A)(3) and because appellants made no effort to rebut the presumption as required by statute that the principal's work is “not an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services.” Appellees argue that Motiva is entitled to statutory employer status, precluding appellants' cause of action in tort and restricting appellants' action to workers' compensation.

Statutory employer status. Prior to the 1997 amendment, statutory immunity was based on an evaluation of the relationship of the immediate employer's...