Portier v. Thrifty Way Pharmacy

• Decision Date: 10 October 1985
• Docket Number: No. 84-701,84-701
• Citation: 476 So.2d 1132
• Parties: Sidney A. PORTIER, et al., Plaintiffs-Appellants, v. THRIFTY WAY PHARMACY, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1132

476 So.2d 1132

Sidney A. PORTIER, et al., Plaintiffs-Appellants, v. THRIFTY WAY PHARMACY, et al., Defendants-Appellees.

No. 84-701.

Court of Appeal of Louisiana Third Circuit.

Oct. 10, 1985.

Rehearing Denied Nov. 5, 1985.

Edward P. Sutherland and James A. George, Baton Rouge, for plaintiffs-appellants.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Gary Kraus, Lafayette, Vance Ellefson, New Orleans, Charles Sonnier, Abbeville, Howard Martin, Voorhies & Labbe, Marc Judice, LaFayette, John Blackwell, New Iberia, for defendants-appellees.

Before DOMENGEAUX, FORET and YELVERTON, JJ.

DOMENGEAUX, Judge.

This lawsuit arose out of a single vehicle automobile accident resulting in severe injuries to the plaintiff, Sidney A. Portier. The plaintiffs-appellants, Sidney A. Portier and his wife Lisa Portier, appealed from the district court's grant of motions for summary judgment in favor of defendants-appellees, Gulf Oil Corporation and Petroleum Helicopters, Inc.

On May 22, 1980, Sidney A. Portier was treated by Dr. Howard Alleman (also a defendant in this action) for what was described as "muscle tension headaches". Doctor Alleman prescribed the drug Tranxene in an attempt to relieve the plaintiff's condition. The plaintiff proceeded to a Thrifty Way Pharmacy in Erath, Louisiana (also a defendant in this action) where he had the Tranxene prescription filled. The plaintiff testified during deposition that he took one Tranxene that night.

Early the following morning, May 23, 1980, the plaintiff and a co-worker, Mark Henson, departed Erath, Louisiana, in the plaintiff's pickup truck bound for Cameron from whence they were to be transported to a Gulf Oil Corporation offshore production platform. Mr. Portier and Mr. Henson were employed by R.W. Brasseaux and Associates as Instrument Technicians and were being sent to the Gulf Oil platform to perform duties pursuant to a contract between Gulf Oil Corporation and R.W. Brasseaux and Associates.

Upon arriving at the platform, Portier and Henson reported to Gerald Chapman, the Gulf employee in charge, and then began to inspect and service the equipment R.W. Brasseaux and Associates had contracted to maintain for Gulf Oil.

Approximately two to three hours after reporting to the production platform Mr. Portier began to complain that he felt groggy. He then approached Gerald Chapman, showed him the medicine, explained that he felt disoriented, and asked to be returned to shore.

Chapman contacted the PHI helicopter pilot who provided transportation for the Gulf Oil Production platforms in the vicinity and requested that he return Mr. Portier to the Petroleum Helicopter base in Cameron. The pilot flew Portier to the PHI base. Mr. Portier slept through most of the flight. At approximately 2:30 P.M. the PHI helicopter landed at the Cameron base and Mr. Portier alighted and walked to the parking lot.

At approximately 8:25 P.M. that day at a point some 30 miles east of Cameron Portier allowed his vehicle to leave the road causing it to flip over. The resulting injuries prompted this personal injury lawsuit.

The plaintiffs filed suit against Gulf Oil Corporation, Petroleum Helicopters, Inc. and other named defendants in both the Federal District Court for the Western District of Louisiana and the Fifteenth Judicial District Court.

Gulf Oil Corporation filed a motion for summary judgment in the Federal District Court alleging that it was immune from tort liability. The Federal District Court denied Gulf Oil's motion for summary judgment noting that factual questions existed as to whether Sidney Portier was or was not a borrowed servant of Gulf Oil and whether or not he was actually doing work for Gulf Oil.

We gather from the briefs that shortly after the ruling on the motion for summary judgment the federal proceedings were voluntarily stayed without prejudice by the plaintiff.

Subsequently, both Gulf Oil Corporation and Petroleum Helicopters, Inc. filed motions for summary judgment in the State district court. The district judge granted the summary judgments on behalf of Gulf Oil and PHI. In his written reasons for ruling the district judge stated:

"... The Court, however, concludes that there is no factual dispute and no basis for plaintiffs' recovery against Petroleum Helicopters, Inc., accordingly the Exception and Alternative Motion for Summary Judgment is sustained.

A Motion for Summary Judgment On Behalf of Gulf Oil Corporation directed to the plaintiffs' claim was heard. The court finds that a previous ruling on a similar Motion by the U.S. District Court for the Western District of Louisiana is not res judicata. Further the Court finds that there is no issue of material fact on the question of borrowed or statutory employee. The answer to this question without factual contradiction is shown to be affirmative. Plaintiff-Sidney A. Portier was a statutory employee of Gulf Oil Corporation and therefore is precluded from bringing the present action against Gulf Oil Corporation. The Motion is sustained."

There are four issues presented for our consideration on this appeal:

(1) Whether the Federal District Court's denial of Gulf Oil's Motion for Summary Judgment was res judicata on the issues of borrowed and statutory employee in the state district court.

(2) Whether there was no genuine issue of material fact present in the suit against Gulf Oil so as to justify the district court's grant of Gulf Oil's Motion for Summary Judgment.

(3) Whether there was no genuine issue of material fact present in the suit against PHI so as to justify the district court's grant of Petroleum Helicopter's motion for summary judgment.

(4) Whether the trial court erred in denying appellant's motion for new trial on the district court's granting of Gulf Oil's and PHI's motions for summary judgment.

ISSUE ONE

The appellants contend that the Federal District Court's denial of Gulf Oil's Motion for Summary Judgment is res judicata on the issues of whether the plaintiff was a statutory or borrowed employee of Gulf Oil or not. Therefore they assert that the state district court should have denied Gulf Oil's Motion for Summary Judgment as those issues had already been determined. We disagree.

In order for the doctrine of res judicata to be applicable, the judgment must be a final judgment. La.C.C. Art. 2286. Succession of Cameron, 446 So.2d 948 (La.App. 3rd Cir.1984), Fisher v. Rollins, 231 La. 252, 91 So.2d 28 (1956).

The denial of a motion for summary judgment is not a final judgment as an appeal does not lie from a court's refusal to render summary judgment. La.C.C.P. Art. 968. Savoy v. Doe, 315 So.2d 875 (La.App. 3rd Cir.1975), Cardean, Inc. v. Cannon, 307 So.2d 818 (La.App. 3rd Cir.1975).

Because the denial of Gulf Oil's motion for summary judgment in Federal Court was not a final judgment but rather a non-appealable interlocutory judgment it cannot be said to have the authority of a thing adjudged. We therefore hold that the Federal District Court's denial of Gulf Oil's motion for summary judgment was not res judicata on the issues of plaintiff's status as borrowed or statutory employee.

ISSUE TWO

The appellants contend that the district court erred in granting Gulf's Motion for Summary Judgment as there existed genuine issues of material fact which would preclude such action by the district court.

Gulf Oil filed its motion for summary judgment alleging among other things that it was the statutory employer of Sidney A. Portier and was therefore immune from suit in tort.

Annexed to Gulf's motion were the affidavits of Richard C. Hoss, Sr., the Overwater Production superintendent and R.F. Thomas, the Environmental and Safety Manager of Gulf Oil and Exploration Company, a division of Gulf Oil Corporation.

Mr. Hoss' affidavit attested that his job entailed the specific duty of assigning offshore instrument technicians. He stated that the instrument technicians are responsible for maintaining Gulf Offshore Production facilities in compliance with certain federal regulations pertaining to safety and environmental quality. Hoss deposed that he has personally supervised six named instrument technicians employed directly by Gulf and that because of the enormous volume of work required to remain in compliance with federal regulations Gulf must contract with companies to provide qualified instrument technicians. He went on to state that failure to comply with the federal regulations would result in penalties being assessed against Gulf Oil and furthermore the technicians are responsible for maintaining certain equipment necessary for the safe production of minerals.

Mr. Thomas' affidavit discussed the importance of the work of instrument technicians, explained what their job entailed as far as federal regulations and safety are concerned, and that Gulf employs instrument technicians directly but also hires independent contractors to perform work when needed.

The plaintiffs filed an opposition to Gulf Oil's Motion for Summary Judgment and attached thereto an affidavit of one of the plaintiffs, Sidney A. Portier, who attested that the employees of independent contractors did all of the inspection work on Gulf platforms and that Gulf did not have any employees whose jobs were identical or similar to his.

Based upon the affidavits, depositions and pleadings filed in this case, the district judge ruled that Gulf was entitled to summary judgment as Mr. Portier was a statutory employee of Gulf Oil and therefore Gulf was immune to a suit in tort.

On appeal the appellants argue that the summary judgment was improper as there existed genuine issues of material fact, particularly the fact that the defendant's affidavits did not state that Gulf directly employed instrument technicians during the same time period that plaintiff worked on Gulf platforms. The appellants further argue that because Gulf did not directly employ instrument technicians during the same time...