Liles v. Riblet Products of Louisiana, Inc.

• Decision Date: 07 September 1973
• Docket Number: Civ. A. No. 17943.
• Citation: 363 F. Supp. 358
• Parties: Thomas C. LILES v. RIBLET PRODUCTS OF LOUISIANA, INC., and American Employers Insurance Company.
• Court: U.S. District Court — Western District of Louisiana

363 F. Supp. 358

Thomas C. LILES v. RIBLET PRODUCTS OF LOUISIANA, INC., and American Employers Insurance Company.

Civ. A. No. 17943.

United States District Court, W. D. Louisiana, Shreveport Division.

August 30, 1973.

Addendum September 7, 1973.

COPYRIGHT MATERIAL OMITTED

Jackson B. Davis, Troy E. Bain, Booth, Lockard, Jack, Pleasant & Le Sage, Shreveport, La., for plaintiff.

Benjamin C. King, Cook, Clark, Egan, Yancey & King, Shreveport, La., for defendants.

RULING ON PENDING MOTION FOR SUMMARY JUDGMENT

DAWKINS, Senior District Judge.

THE ISSUES

This diversity tort action was commenced as the result of an alleged vehicular accident on U. S. Highway 71 near Alexandria, Louisiana, involving an employee of defendant, Riblet Products of Louisiana, Inc., and plaintiff, Thomas C. Liles, an employee of State Line Escort Service.

Defendants, Riblet and American Employers Insurance Company, its liability insurer, filed a motion for summary judgment on the ground that Riblet is the "statutory employer" of plaintiff under the Louisiana Workmen's Compensation Statute, La.R.S. 23:1061; hence, that plaintiff's exclusive remedy is for workmen's compensation and he may not bring a tort action against them.

Riblet is a corporation organized under the laws of Indiana, authorized to do and doing business in Louisiana, and is engaged in the manufacture, sale, and delivery of mobile home frames in Louisiana, Arkansas and Texas. In connection with its business, Riblet has a plant on Shed Road in Bossier City, Louisiana, where it maintains a fleet of trucks and equipment for delivering frames to purchasers. Its employees are engaged in the manufacture and sale of mobile home frames, and it also employs staff truck drivers and other employees whose duties include despatching, operation, and maintenance of these trucks.

The mobile home frames manufactured and delivered by Riblet all are either twelve or fourteen feet in width. La.R.S. 32:388 authorized the Director of Highways of Louisiana to issue special permits for operation of vehicles carrying oversize loads on the State's highways. In issuing these permits, the Director is authorized to impose certain conditions, one of which is the requirement for a proper escort, State Police or otherwise. Pursuant to this, Director's Policy and Procedure Memoranda No. 71, dated January 12, 1970, required that all loads exceeding twelve feet in width be accompanied by a properly equipped escort vehicle. Hence, Riblet on various occasions has engaged the services of several escort companies to provide this service for its vehicles when delivering frames exceeding twelve feet in width, since it does not maintain equipment or drivers of its own to do this.

When the accident here being litigated occurred, Riblet was delivering mobile home frames which were fourteen feet wide. It had entered into a verbal agreement with State Line to provide the required escort. Plaintiff, an employee of State Line, was driving the escort vehicle. He claims that the driver of defendant's truck ran into the rear of the escort vehicle during the course of delivery of a frame, causing injuries to him.

Pursuant to F.R.Civ.Proc. 56, defendants seek summary judgment, contending that no genuine issue as to any material fact is present and that they are entitled to a judgment of dismissal as a matter of law. Their basic argument is that, since La.R.S. 23:1061¹ provides liability for workmen's compensation only for any injury plaintiff may have sustained in the accident that relief is plaintiff's exclusive remedy.² The validity of this assertion hinges solely upon determining whether providing an escort vehicle to facilitate delivery of mobile home frames is a regular, usual, ordinary and integral part of Riblet's business within the meaning of the statute.

In opposing defendants' motion, plaintiff first argues that there indeed is a genuine issue as to material fact, based upon an apparent discrepancy between an affidavit signed by Frank E. Deen, Plant Manager of Riblet, and a deposition which he gave subsequently wherein he thoroughly was cross-examined by plaintiff's counsel. Plaintiff contends that the services provided by State Line were not a part of the "trade, business, or occupation" of Riblet as interpreted by Louisiana jurisprudence.

CONCLUSIONS

Based upon the record presented here, we find there are no such genuine issues of material fact to preclude our granting the motion for summary judgment. Plaintiff's contention that there is such a genuine issue lies in a purported discrepancy between an affidavit and deposition of Deen.³ First, plaintiff claims Deen's affidavit clearly repudiates his statement that Riblet employs such escort personnel, including the driver of the truck involved, and, second, this consequently creates an issue which has not been resolved.⁴

It is clear that Riblet neither has the equipment nor the employees necessary to escort delivery of over-size loads.

Third, even if a discrepancy between the affidavit and deposition given by Deen is considered as creating an issue of fact, it still does not create an issue of material fact,⁵ since its resolution one way or the other would not affect the result.

As stated, defendants are entitled to judgment in their favor as a matter of law. La.R.S. 23:1061 provides that any person who "contracts out" work which is part of his trade, business, or occupation is liable to any employee of a contractor engaged in such an enterprise for workmen's compensation to the same extent as if the contractor's employee were one of his own employees.

The purpose of this provision in the Compensation Act is to prevent an employer from avoiding his compensation responsibility by interposing independent contractors or subcontractors between himself and his employees. Malone, "Principal's Liability for Workmen's Compensation to Employees of Contractor," 10 La.Law Rev. 25 (1949). As the quid pro quo for subjecting the principal to liability for workmen's compensation to his subcontractor's employees, § 1032 of the Act grants the employer immunity from tort liability. Consequently, the crucial issue we must determine is whether the escort service provided here was a part of Riblet's business within the meaning of the statute, so as to establish workmen's compensation benefits as the exclusive remedy available to plaintiff against defendants.

We hold that under Louisiana jurisprudence these escort services are an integral, usual, and necessary part of Riblet's business; hence, that plaintiff's tort action is proscribed by § 1032.

Since determination vel non indeed depends upon whether a contractor's particular activity is a part of his trade, business, or occupation turns primarily on the facts of each individual case, Foster v. Western Electric Co., 258 So.2d 153, 156 (2nd Cir. La.App.1972), we are not compelled to examine or particularize the varying factual situations presented in the cases cited in plaintiff's brief. It is sufficient that the test is whether an activity actually is a part of the business of a principal as enunciated by the Fifth Circuit in Arnold v. Shell Oil Co., 419 F.2d 43 (5th Cir., 1969) after thorough examination of the Louisiana jurisprudence. The Court there stated:

"We regard Massey Massey v. Rowan Drilling Co., 368 F.2d 92 (5th Cir. 1966) as correctly stating the Louisiana law, in light of Thibodaux Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852 (1950) and Turner Turner v. Oliphant Oil Corp., 200 So. 513, (2d Cir. La.App.1940), that the test for determining whether an activity is part of an employer's trade or business for purposes of the Louisiana Workmen's Compensation Statute is whether the particular activity is essential to the business. The fact that the employer or industry as a whole always contracts out the activity is not controlling." Id. 419 F.2d at page 50.

Applying the "essential-to-the-business" test,⁶ it is obvious that the unvarying practice of escorting over-size loads was a part of Riblet's business since it was engaged, not only in manufacturing and selling these frames, but also in delivering them. Therefore, the law of Louisiana, and regulations thereunder require that transportation of frames exceeding 12 feet in width be accompanied by an escort vehicle. As put another way in Arnold, 419 F.2d at 50, ". . . the test seems rather whether the employer would have to hire some workers of its own to perform the activity if it were not performed by the independent contractor. . . ."

This precisely was the situation faced by Riblet here. Although Riblet must have obtained a special permit, its invariable practice of employing independent contractors for escort services for its trucks was not work ". . . of such a special or separate character as would not ordinarily or appropriately be performed by the principal employer's own employees in the prosecution of its business. . . ." Isthmian S. S. Co. v. Olivieri, 202 F.2d 492, 494 (5th Cir. 1953).⁷

Plaintiff argues that there is a dual-pronged test which must be applied in ascertaining which activity is part of the principal's business: 1) it must be part of the principal's regular or usual business and, 2) essential to its business. In a sense this assertion is correct ". . . since even direct employees must be engaged in work which is a part of the regular business of the employer . . ." before liability can attach under the Workmen's Compensation Act. Malone, "Louisiana Workmen's Compensation Law and Practice," § 125, at page 152 (1951). (Emphasis added.) Nevertheless, this does not conflict with the "essential-to-the-business" test of Arnold which concerns itself with the "part-of the principal's business" inquiry, and apparently assumes the business to be that usual to the principal.

Moreover, plaintiff's proposition presents no problem here since there absolutely is no doubt that the business of manufacturing, selling and delivering...