Moore v. Crystal Oil Co., 25008-CA

• Decision Date: 27 October 1993
• Docket Number: No. 25008-CA,25008-CA
• Parties: Dennis W. MOORE, et al., Plaintiffs-Appellants, v. CRYSTAL OIL COMPANY, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 792

626 So.2d 792

Dennis W. MOORE, et al., Plaintiffs-Appellants, v. CRYSTAL OIL COMPANY, et al., Defendants-Appellees.

No. 25008-CA.

Court of Appeal of Louisiana,

Second Circuit.

Oct. 27, 1993.

Rehearing Denied Nov. 24, 1993.

Writ Granted Feb. 25, 1994.

James E. Franklin, Jr., Shreveport, for plaintiffs-appellants.

Davenport, Files & Kelly by Ramsey L. Ogg, Monroe, for intervenor-appellant.

Lunn, Irion, Johnson, Salley & Carlisle by Ronald E. Raney, Shreveport, for defendants-appellees.

Before LINDSAY, VICTORY and BROWN, JJ.

LINDSAY, Judge.

In this tort action arising from a work-related injury, the plaintiffs appealed from a summary judgment granted in favor of the defendants sustaining the statutory employer defense. For the reasons assigned below, we affirm the judgment of the trial court.

FACTS

Crystal Oil Company was engaged in the business of producing oil and gas. It did not employ welders and contracted out its welding work. Custom Tank and Welding, Inc., contracted with Crystal Oil to perform welding in connection with the installation of a new compressor at Crystal Oil's Shongaloo Field, located in Webster Parish. The purpose of this compressor was to receive natural gas from five separate wells located a few miles away via pipeline. The compressor would then boost or increase the pressure from the receiving point forward toward the sales point, where Crystal Oil's pipeline connected to that of its customer, Associated Natural Gas, Inc.

On March 15, 1990, the day of the accident, Custom Tank sent the plaintiff, Dennis W. Moore, to the Shongaloo Field with the equipment necessary to perform the welding required by Crystal Oil. At the time of the accident, Moore was welding some steel legs onto a rack that was to be used to hold a 55-gallon drum. This barrel-type apparatus was to be attached directly to the compressor for the purpose of providing gravity-fed lubrication. Without such lubrication, the drive unit of the compressor would fail and become inoperable. While Moore was performing this operation, Crystal Oil employees were installing valves onto the primary gas line. For testing purposes, the gas line to which the new compressor was to be attached was pressurized. Exactly what happened next is unclear; however, Moore's petition alleged that earlier that day Crystal Oil's construction foreman, Wayne Modisette, ran over the line with a backhoe. Although its cause is disputed, the valve on the line ruptured, emitting gas distillate and vapor into the atmosphere. Moore was welding 50 to 75 feet from the ruptured valve. When the gas vapor reached Moore, an explosion occurred, and Moore was severely burned.

Moore and his wife, Kathy, individually and on behalf of their minor children, Cody and Taylor, filed suit against Crystal Oil and several others. Highlands Insurance Company intervened to recover workers' compensation benefits paid and still owing to Moore on behalf of Custom Tank.

Three of the defendants, Crystal Oil, its insurer, Assicurazioni Generali S.P.A., and its foreman, Wayne Modisette, filed a motion for summary judgment asserting that Crystal Oil, as the statutory employer of Moore, was immune from tort liability and that the two-contract theory applied to bar plaintiffs' claims. The trial court granted defendants' motion for summary judgment, finding Moore to be the statutory employee of Crystal Oil and thus precluded from recovering in tort from Crystal Oil. The trial court specifically declined to rule on the two-contract theory defense.

SUMMARY JUDGMENT

The function and objective of a summary judgment is to avoid the delay and expense of trial on the merits and enable the court to expedite the disposition of the case when there exists no genuine issues of material fact. Central Bank v. Simmons, 595 So.2d 363 (La.App. 2d Cir.1992). However, summary judgment is not to be used as a substitute for a full trial of controverted factual questions which are material to a decision in the case. Reese v. Tayco Food Store, Inc., 602 So.2d 260 (La.App. 2d Cir.1992).

Appellate courts should review the granting of a summary judgment de novo under the same criteria governing the trial court's consideration of whether a summary judgment is appropriate. Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992). Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Young v. Shelter Insurance Company, 604 So.2d 199 (La.App. 2d Cir.1992), writ denied, 607 So.2d 559 (La.1992); Nolan v. S & W Steel Fabricators, Inc., 600 So.2d 929 (La.App. 2d Cir.1992).

The burden of proof in a motion for summary judgment is on the mover to establish that there are no genuine issues of material fact. This burden is a great one as it is only when reasonable minds must concur that summary judgment is warranted. Any doubts should be resolved in favor of a trial on the merits. Nolan, 600 So.2d at 931. Because the mover has the burden of establishing the lack of material factual issues, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Reese, 602 So.2d at 263.

This case does not present a factual dispute; rather, the parties are disputing the legal conclusion to be drawn from the undisputed facts. The primary legal issue in this case is the effect of Acts 1989, No. 454, amending LSA-R.S. 23:1061, on the existence of a statutory employer/employee relationship and its application to the case sub judice.

STATUTORY EMPLOYER DOCTRINE

LSA-R.S. 23:1061 states when a principal contracts with another to perform work for him that is part of the principal's trade, business or occupation, the principal is liable to pay workers' compensation benefits to any injured employee of the contractor. In such instances, the principal is commonly referred to as the "statutory employer." In exchange for the responsibility placed on statutory employers, this provision provides employers with tort immunity for the work-related injuries suffered by the employees of the employer's contractors and sub-contractors. LSA-R.S. 23:1032. Thus, the linchpin in a finding of statutory employment and tort immunity in favor of the principal is a determination that the contract work is considered a part of the principal's trade, business or occupation.

For many years, the standard for determining whether the contract work was part of the principal's trade, business or occupation was the "integral relation" test established in Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852 (1950). According to this test, a statutory employer relationship exists when the contract work is an integral part of the trade, business, or occupation of the principal.

However, in 1986, the Louisiana Supreme Court abandoned the "integral relation" test in Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986). In its place, the court adopted a more restrictive three-tier analysis for determining whether a subcontractor's employee who was injured while performing work that is considered part of the principal's trade, business or occupation may sue the principal in tort. ¹

For several years courts used the three-level analysis outlined in Berry, supra, to determine if a statutory employment relationship existed. However, in 1989, the Louisiana Legislature amended LSA-R.S. 23:1061 by adding the following sentence:

The fact that work is specialized or nonspecialized, is extraordinary construction or simple maintenance, is work that is usually done by contract or by the principal's direct employee, or is routine or unpredictable, shall not prevent the work undertaken by the principal from being considered part of the principal's trade, business, or occupation, regardless of whether the principal has the equipment or manpower capable of performing the work.

Acts 1989, No. 454, Sec. 3.

This amendment tracks the language in Berry and rejects the criteria set forth therein. No reported Louisiana state court decision has directly addressed the effect of this amendment on the Berry analysis. However, in addressing the retroactivity of the 1989 amendment, several Louisiana appellate courts have suggested in dicta that it reinstated the "integral relation" test, Carter v. Chevron Chemical Company, 593 So.2d 942, 945-46 (La.App. 4th Cir.1992), writ denied, 596 So.2d 211 (La.1992), and that Berry has been legislatively overruled, returning the courts to a more liberal standard of tort immunity. See Frith v. American Motorists Insurance Company, 613 So.2d 249, 251 (La.App. 1st Cir.1992), writ denied, 617 So.2d 932 (La.1993); Hutchins v. Hill Petroleum Company, 609 So.2d 312, 315 (La.App. 3rd Cir.1992); Young v. Lyons Petroleum, Inc., 598 So.2d 702, 706 (La.App. 3d Cir.1992), writs denied, 605 So.2d 1149, 1150 (La.1992); Berry v. Brown & Root, Inc., 595 So.2d 767, 769 (La.App. 4th Cir.1992). See also St. Paul Fire & Marine Insurance Company v. Smith, 609 So.2d 809, 821 (La.1992), wherein the Supreme Court made a reference in dicta to "the amendment overruling Berry."

Federal courts deciding Louisiana cases have also held that the amendment broadened the reach of the statutory employment language contained in LSA-R.S. 23:1061 by rejecting the Berry test and returned the law to the "integral relation" test. See Thompson v. Georgia Pacific Corporation, 993 F.2d 1166 (5th Cir.1993); Becker v. Chevron Chemical Company, 983 F.2d 44 (5th Cir.1993); Harris v. Murphy Oil, U.S.A., Inc., 980 F.2d 991 (5th Cir.1992).

In Salsbury v. Hood Industries, Inc., 982 F.2d 912, 915 (5th Cir.1993), the Fifth Circuit stated:

The amendment [to LSA-R.S. 23:1061] tracks the language in the first two levels of the Berry analysis and specifically rejects each of...