Mozeke v. International Paper Co., 88-4138

• Decision Date: 03 October 1988
• Docket Number: No. 88-4138,88-4138
• Citation: 856 F.2d 722
• Parties: Joe C. MOZEKE and Lizzie B. Mozeke, Plaintiffs-Appellants, v. INTERNATIONAL PAPER COMPANY, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 722

856 F.2d 722

Joe C. MOZEKE and Lizzie B. Mozeke, Plaintiffs-Appellants, v. INTERNATIONAL PAPER COMPANY, Defendant-Appellee.

No. 88-4138

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 3, 1988.

Robert L. Beck, Jr., Rivers & Beck, Alexandria, La., for plaintiffs-appellants.

Herschel E. Richard, Jr., Timothy B. Burnham, Cook, Yancey, King & Galloway, Shreveport, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before REAVLEY, KING and JOLLY, Circuit Judges.

KING, Circuit Judge:

Plaintiffs-appellants Joe and Lizzie Mozeke filed a negligence suit in Louisiana state court in August of 1986 against defendant-appellee International Paper Company to recover damages for injuries plaintiff Joe Mozeke sustained while working at defendant's Mansfield, Louisiana plant. On defendant's petition, the action was removed on the basis of diversity of citizenship to the Federal District Court for the Western District of Louisiana. Defendant then filed a motion for summary judgment, asserting that it was immune from tort liability under Louisiana's "statutory employer" doctrine. Plaintiff filed a cross-motion for partial summary judgment on the same issue. The district court granted defendant's motion. We conclude that the district court was correct in holding that the contract work that plaintiff was performing at the time of his injury was part of defendant's "trade, business or occupation" so that plaintiff's exclusive remedy is Worker's Compensation. Specifically, we agree with the district court that it was appropriate in this case to determine the scope of defendant's trade, business or occupation with reference to its operations as a whole, rather than looking only at the Mansfield plant. We therefore affirm the district court's judgment.

I.

The underlying facts in this case are essentially undisputed. Mr. Mozeke, an employee of Brown & Root ("B & R"), was injured in October of 1985 while working as a helper first class at the International Paper Company ("IPCO") mill at Mansfield, Louisiana.

The accident occurred while Mr. Mozeke was assisting two other B & R employees in setting up a scaffold inside of a digester --a large container used to "cook" wood chips to create pulp for the paper manufacturing process. The scaffold is constructed so that workers can move up and down inside of the digester to clean and make repairs. A piece of "scale" fell from the digester, striking Mr. Mozeke on the head and shoulder.

IPCO retained B & R to perform maintenance work on equipment at its Mansfield plant. While IPCO employees performed similar tasks, including the cleaning and inspection of digesters, at IPCO's other plants, they did not perform maintenance work at the Mansfield plant. IPCO did, however, provide B & R with the tools and equipment necessary to carry out the maintenance work at the Mansfield mill.

The parties filed cross motions for summary judgment on the issue whether IPCO was Mozeke's statutory employer under Louisiana Revised Statutes, section 23:1061. La.Rev.Stat.Ann. sec. 23:1061 (West 1985 & Supp.1988).

Section 1061 provides that any person (the principal) who contracts with another (the contractor) to perform work that is part of the principal's trade, business or occupation will be liable under the Worker's Compensation statute to the contractor's employees as if the principal were the direct employer of the injured employee. Id. A principal may assert as a defense to a tort action that it is a "statutory employer" under section 1061. If the principal is found to be the plaintiff's statutory employer, the plaintiff's exclusive remedy is Worker's Compensation, and the principal is therefore immune from tort liability. La.Rev.Stat.Ann. sec. 23:1032 (West 1985 & Supp.1988) (exclusivity of Worker's Compensation); Seeney v. Citgo Petroleum Corp., 848 F.2d 664, 666 (5th Cir.1988); Forno v. Gulf Oil Corp., 699 F.2d 795, 796 (5th Cir.1983).

The district court granted summary judgment for IPCO, holding that IPCO was, as a matter of law, Mozeke's statutory employer. Applying the three-part analysis set forth in Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986), the trial court concluded (1) that the contract work performed by B & R was not specialized per se, (2) that the work at issue was part of IPCO's trade, business or occupation because the work was routine and customary, IPCO had the personnel and equipment to perform the work itself, and it was common within the industry for manufacturers to perform such work in-house, rather than contracting with an outside business, and (3) that IPCO itself was engaged in the contract work at the time of the injury.

Mozeke filed timely notice of appeal from the district court's entry of summary judgment for IPCO. Mozeke argues that the trial court erred in its application of the Berry standard, and that under proper application of the standard, he is entitled to summary judgment in his favor. Alternatively, Mozeke argues that summary judgment is inappropriate because there are genuine issues of material fact that must be resolved by the trial court. We will begin our consideration of these arguments by setting forth the standards under which we will review the district court's judgment.

II.

On appeal from a summary judgment, we must review the district court's decision by examining the record under the same standard that governs a district court's initial determination under Fed.R.Civ.P. 56(c). Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988); Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir.1987); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). We may therefore affirm a summary judgment only if "we are convinced, after an independent review of the record, that 'there is no genuine issue as to any material fact' and that the movant is 'entitled to a judgment as a matter of law.' " Walker, 853 F.2d at 358; Reid 784 F.2d at 1364.

Deciding whether summary judgment is appropriate is a "threshold inquiry" to determine whether a trial is necessary: "[W]hether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In reviewing the facts, we must draw all inferences in the manner most favorable to the nonmoving party. Reid, 784 F.2d at 578. If we then conclude that "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," summary judgment will not lie. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

While it is not our function at the summary judgment stage to resolve disputed issues of fact, id. at 249, 106 S.Ct. at 2510-11, we will subject the legal questions raised by the parties to full appellate review if the disposition on summary judgment turns solely on questions of law. Brooks, 832 F.2d at 1364. Since this case was removed to a federal forum on the basis of diversity of citizenship, we sit as an Erie court, and must apply Louisiana law, attempting to rule as a Louisiana court would if presented with the same issues. Walker, 853 F.2d at 358-59.

In this case, the district court held that as a matter of Louisiana law, IPCO was Mozeke's statutory employer. Applying the standard of review outlined above, we conclude that the district court was correct.

The primary purpose of the statutory employment doctrine, codified in section 1061, is to determine whether the contractor is "an independent business enterprise, rather than a mere intermediary interposed" to limit the principal's responsibility for Worker's Compensation. Berry, 488 So.2d at 938 (citing Williams v. Shell Oil, 677 F.2d 506, 508 (5th Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 933 (1982)). Berry is the controlling Louisiana case for determining when the statutory employer defense will apply in a tort action. Seeney, 848 F.2d at 666.

Berry sets forth a three-level analysis to determine whether a principal is the statutory employer of a contractor's employees: First, the court must determine whether the contract work is specialized or nonspecialized. This is a factual inquiry to determine whether the level of skill, training and experience required to perform the work at issue is not ordinarily possessed by workers outside the contract field. If the contract work is determined to be specialized per se, then, as a matter of law, it is not part of the principal's trade, business or occupation.

If the contract work is not specialized per se, the court must engage in a second inquiry: a comparison of the contract work with the principal's trade, business or occupation to determine whether the contract work could be considered a part of the principal's own trade or business. Finally, the court must determine whether the principal was itself engaged in the contract work at the time of the injury.

Applying the Berry test to the instant case, we hold that the district court correctly found that the contract work performed by B & R was not specialized per se. As the district court noted, Berry states that a "sub-species of the specialty inquiry" is whether the principal's own employees are capable of performing the contract work. 488 So.2d at 938. Since the skill, education and experience necessary to perform the contract work is possessed by personnel in the paper manufacturing business in general, and by IPCO's employees at other plants, we cannot reasonably conclude that the contract work was specialized per se.

Plaintiff urges a contrary conclusion, arguing first, that two of the classes of craftsmen employed by B & R--pipefitters and welders--are in fields that Louisiana appellate courts have previously held to be...