Ortego v. Union Oil Co. of California
| Decision Date | 19 February 1982 |
| Docket Number | No. 81-3483,81-3483 |
| Citation | 667 F.2d 1241 |
| Parties | Curtis ORTEGO, Plaintiff-Appellant, v. UNION OIL COMPANY OF CALIFORNIA, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Fontenot & Mitchell, Guy O. Mitchell, III, Ville Platte, La., for plaintiff-appellant.
Allen, Gooch & Bourgeois, Randall K. Theunissen, Lafayette, La., for defendant-appellee.
Appeals from the United States District Court for the Western District of Louisiana.
Before BROWN, POLITZ and WILLIAMS, Circuit Judges.
Curtis Ortego, an employee of Pelican Well Service, Inc., was injured while engaged in workover operations on an oil well belonging to Union Oil Company of California. Ortego received workers' compensation benefits from his employer. Invoking diversity jurisdiction, Ortego filed the present tort suit against Union Oil, alleging that Union Oil's supervisors failed to maintain a safe job site.
Union Oil moved for summary judgment, contending that under Louisiana's workers' compensation statute, as Ortego's statutory employer it was liable to him exclusively for compensation benefits, it was not liable in tort. 1 After considering the affidavits of Union Oil's Vice President of Operations Oil and Gas Division, and Onshore Area Production Manager for the Southeast Louisiana District, the trial court concluded that the well workover activity of Pelican Well Service constituted part of Union Oil's "trade, business or occupation ...." La.R.S. 23:1061. The motion for summary judgment, premised upon the finding that Union Oil was Ortego's statutory employer, was granted. We affirm.
This appeal presents the issue of the propriety of the use of the summary judgment vehicle. Rule 56 of the Federal Rules of Civil Procedure recites that the party seeking summary disposition is entitled to judgment if pleadings, depositions, answers to interrogatories, admissions, and affidavits filed disclose no genuine issue of material fact. The litigant opposing the motion is required to come forth with evidence of a genuine issue of material fact. Mere allegations or denials in pleadings are insufficient to preclude a summary judgment. In this context, we have examined the record to determine if there is a genuine fact dispute presented whether workover operations constitute an integral part of Union Oil's trade, business, or occupation.
We recently had occasion to make an in-depth study of Louisiana's statutory employer concept. Blanchard v. Engine & Gas Compressor Services, Inc., 613 F.2d 65 (5th Cir. 1980). Our initial reading of the various opinions impressed us that the cases were "somewhat inconsistent." Id. at 69. As a result, we certified the statutory employer issue to the Supreme Court of Louisiana. Regrettably, the Court's response was terse: 613 F.2d at 68.
Having again examined Louisiana law, and relying heavily on Reeves and our decision in Freeman v. Chevron Oil Co., 517 F.2d 201 (5th Cir. 1975), we held that "in Louisiana, the 'essential to business' test is no longer, if it ever was, the controlling factor in the identification of a statutory employer." 613 F.2d at 71. Instead, the proper test for application of La.R.S. 23:1061 is "whether the activity done by the injured employee or his actual immediate employer is part of the usual or customary practice of the principal or others in the same operational business." Id. (footnote omitted).
Typically, whether the work performed by the injured worker's employer is part of the trade or business of the ostensible statutory employer is an issue of fact, determined according to the circumstances of each case. See, e.g., Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978); Lushute v. Diesi, 354 So.2d 179 (La.1978). Yet, summary resolution of this issue is not prohibited. In Barnes, the plaintiffs were employees of a welding outfit which contracted with Sun Oil to repair gas lines and perform other maintenance tasks at one of Sun Oil's production facilities. The petition alleged that Sun Oil was liable in damages because one of its employees was negligent. A motion for summary judgment by Sun Oil was resisted on the ground that Sun Oil did not perform "specialty" work such as pipe maintenance and repair. After observing that Sun Oil's failure to carry out these tasks with its own employees "does not prevent the labor from being part of its regular business," 362 So.2d at 764, the Louisiana Supreme Court concluded that the activity in question was part of Sun Oil's "trade, business or occupation." 2
In the case before us, Union Oil supported its motion for summary judgment with affidavits and depositions of two of its supervisory officers which state that workover operations constitute an integral part of Union Oil's operation. The uncontroverted testimony of Union Oil's Vice President of Operations notes that nearly 1/3 of the oil and gas the company produced in 1978 resulted from prior workover operations. Workover operations are considered to be so significant that the company could not "stay in business competitively" without them.
Against the convincing statements offered by Union Oil, Ortego tendered the deposition of a professor of various oil related subjects at Texas A & M, with extensive experience both working in and as a consultant to the oil and gas industry. The professor was of the opinion that workover activities were not an integral part of Union Oil's business. 3
The district court was not impressed by the conclusions reached by the appellant's expert, stating: "Plaintiff has not raised a genuine...
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