Pierce v. Hobart Corp.

• Decision Date: 03 September 1991
• Docket Number: No. 90-3640,90-3640
• Citation: 939 F.2d 1305
• Parties: Joann W. PIERCE, Plaintiff-Appellant, Northbrook Property & Casualty Insurance Company, Intervenor-Appellant, v. HOBART CORPORATION, Defendant, Martin Marietta Corporation a/k/a Martin Marietta Manned Space Systems, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1305

939 F.2d 1305

Joann W. PIERCE, Plaintiff-Appellant Northbrook Property & Casualty Insurance Company, Intervenor-Appellant, v. HOBART CORPORATION, Defendant Martin Marietta Corporation a/k/a Martin Marietta Manned Space Systems, Defendant-Appellee.

No. 90-3640.

United States Court of Appeals Fifth Circuit.

Sept. 3, 1991.

Ford T. Hardy, Jr., New Orleans, La., for Pierce.

Dona J. Dew, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for Northbrook.

W. Lee Kohler, Robert Emmett Kerrigan, Jr., David P. Gontar, Deutsch, Kerrigan & Stiles, New Orleans, La., for Martin Marietta.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, JOHNSON, and GARWOOD, Circuit Judges.

POLITZ, Circuit Judge:

Joann W. Pierce appeals an adverse summary judgment dismissing her tort claim against Martin Marietta Corporation (MM) on the ground that the corporation is her statutory employer under pertinent Louisiana law. Concluding that there is a genuine issue of fact whether the contract work at issue was specialized or non-specialized we vacate and remand for further proceedings.

Background

MM contracted with the National Aeronautics and Space Administration to provide certain services at the Michoud Space Assembly Facility owned by NASA. The services included cafeteria and related food services for the 4,000 employees at Michoud. MM subcontracted with Morrison's Management Services, Inc. to provide these particular services. Pierce was employed by Morrison's. She allegedly was injured on June 15 and July 6, 1988 while working at Michoud.

In May 1989 Pierce filed suit in state court alleging injury as a result of, inter alia, the negligence of MM. The case was removed to federal court. MM's motion to dismiss, later properly converted to a motion for summary judgment, claims that as its statutory employee, Pierce was barred by the Louisiana Worker's Compensation Act from asserting any ex delicto claim against MM for work-related injuries. Under Louisiana law compensation benefits are an employee's exclusive remedy against a statutory employer. La.R.S. 23:1032; La.R.S. 23:1061. Applying the test set forth by the Louisiana Supreme Court in Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986), the district court found that MM was Pierce's statutory employer and, accordingly, dismissed her claim. Pierce timely appealed.

Analysis

The issue on appeal is whether the trial court was correct in granting summary judgment in favor of MM on the ground that there was a statutory employment relationship between it and Pierce. Our standard of review requires that we decide whether, examining the record de novo and viewing the evidence and all reasonable inferences in the light most favorable to Pierce, MM has demonstrated that there was no genuine issue of material fact and was entitled to judgment as a matter of law. Mozeke v. International Paper Co., 856 F.2d 722 (5th Cir.1988).

The Berry Standard

Berry was the culmination of years of jurisprudential development of the definition of statutory employer under La.R.S. 23:1061 by the Louisiana courts. Berry specifically abandoned an earlier "integral relation" test which had given a very liberal interpretation to statutory employer and, concomitantly, a very broad reach to the tort immunity accorded to principals for the work-related injuries suffered by employees of contractors and subcontractors. The Louisiana Supreme Court expressed this change as follows:

Initially, the courts of this state, including this Court, had determined that a contractor was performing a part of the principal's trade, business or occupation, and thus falling under the statute, when the contract work was an integral and/or essential part (or other synonyms) of the trade, business or occupation of the principal....

Beginning with the case of Benson [v. Seagraves, 436 So.2d 525 (La.1983) ] and followed by the cases of Lewis [v. Exxon Corp., 441 So.2d 192 (La.1983) ] and Rowe [v. Northwestern National Ins. Co., 471 So.2d 226 (La.1985) ] it is obvious that this Court has shifted its interpretive analysis regarding the statutory employer defense from one which favored a liberal application of the doctrine to one which is more restrictive. In so doing we have abandoned the "integral relation" test.... Although the shift is very clear, we have failed to succinctly set forth the method of analysis presently used by this Court in resolving the difficult question of statutory employment.

Berry, 488 So.2d at 937 (citations omitted).

The Berry court established a three-step analysis:

(1) Is the contract work specialized? If so then as a matter of law the contract work is not part of the principal's trade, business or occupation and the principal is not the statutory employer.

(2) If non-specialized, comparing the contract work with the principal's trade, business or occupation, can it be a part thereof in light of three inquiries:

i. is it routine and customary, i.e., regular and predictable;

ii. does the principal have the equipment and personnel capable of performing the work; and

iii. what is the practice in the industry?

(3) Was the principal engaged in the contract work at the time of the injury?

In 1989 the Louisiana Legislature amended R.S. 23:1061, effective January 1, 1990, by adding the following sentence. Acts 1989, No. 454 Sec. 3:

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.

This amendment broadens the reach of the statutory employer designation. The amendment tracks the language in the first two steps of the Berry analysis and rejects the determinative nature of those queries. "This does not, one supposes, mean that these factors are not to be considered; rather, it appears to mean that no single factor (such as specialized versus non-specialized work) may be used to defeat the defense of immunity raised by the principal." Johnson, Worker's Compensation, 50 La.L.Rev. 391, 397 (1989).

Retroactive or Prospective?

Because Pierce was injured and filed suit before the effective date of the 1989 amendment to section 1061, we must determine whether the amendment is to be given retroactive effect. The Louisiana Supreme Court has not yet addressed the matter in a published opinion, nor have we found any case by an intermediate appellate court expressly resolving the issue in a majority opinion. ¹ We do find, however, the repeated implicit treatment of the amendment as applying only prospectively; nearly all of Louisiana's courts of appeal have continued to apply the Berry test for injuries occurring before January 1, 1990. ² Louisiana appellate courts are required to apply the law existing at the time of rendition of their decision, even if the law differs from that existing at the time of the trial court's judgment. Dripps v. Dripps, 366 So.2d 544 (La.1978). As the amended version of 1061 has been in effect since January 1, 1990, we safely may infer that these courts have concluded that the amendment is not retroactive.

We agree with the court a quo that the Berry rubric is applicable to Pierce's case and that the 1989 amendment to R.S. 23:1061 is not to be given retroactive effect. This conclusion is consistent with Article 6 of the Louisiana Civil Code which provides: "In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary." ³ Article 6 envisions a two-part inquiry: (1) is the law substantive, procedural, or interpretive; and (2) is there a clear legislative expression as to its effective date?

Classification of 1989 Amendment

Substantive laws either establish new rules, rights, and duties or change existing ones. Ardoin v. Hartford Accident & Indem. Co., 360 So.2d 1331 (La.1978); Cahn v. Cahn, 468 So.2d 1176 (La.1985). Interpretive laws, on the other hand, do "not create new rules, but merely establish[ ] the meaning that the interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties." Ardoin, 360 So.2d at 1339 (citations omitted); see also Barron v. State, 397 So.2d 29, 31 (La.App.), cert. denied, 401 So.2d 1188 (La.1981). The character of interpretive legislation is evident in a civil law system such as Louisiana. "Judicial opinions, although invaluable interpretations of the law, are merely that; interpretations of the legislative will. The supreme expression of legislative will in Louisiana is of course the codes and statutes." Winstead v. Ed's Live Catfish & Seafood, 554 So.2d 1237, 1242 (La.App.1989), cert. denied, 558 So.2d 570 (La.1990). Interpretive laws provide the Legislature with the opportunity to pronounce the "correct" interpretation to be given to existing laws.

The 1989 amendment to 1061 significantly changes the definition of the statutory employment relationship. It reverses years of limited judicial applications of the statutory employer defense and returns Louisiana to the more expansive integral relation test. As a result, the right of an employee of a subcontractor to sue a principal in tort for a work-related injury is dramatically curtailed by the statutory employer defense. ⁴

We perceive no bright line between substantive laws which change existing standards and interpretive laws which change existing standards by redefining and returning to their ostensible "original" meaning. Cf. Dripps v. Dripps, 366 So.2d at 548 ("[T]he line between [an...