Rowe v. Northwestern Nat. Ins. Co.

• Decision Date: 28 June 1985
• Docket Number: No. 85-C-0200,85-C-0200
• Citation: 471 So.2d 226
• Parties: Donald E. ROWE v. NORTHWESTERN NATIONAL INSURANCE COMPANY, et al.
• Court: Louisiana Supreme Court

Page 226

471 So.2d 226

Donald E. ROWE v. NORTHWESTERN NATIONAL INSURANCE COMPANY, et al.

No. 85-C-0200.

Supreme Court of Louisiana.

June 28, 1985.

Ralph Brewer, Eddie L. Anderson, Baton Rouge, for plaintiff-applicant.

Eugene R. Groves, Harry J. Phillips, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-respondent.

BLANCHE, Justice.

This is a suit in tort for injuries sustained by Donald Rowe, an employee of Ace Electric Company (Ace). At the time of the injury, Rowe was reconnecting an electrical wire pursuant to a contract between Cargill, Inc. and Ace. In answer to this suit, defendants filed an exception of no cause of action and a motion for summary judgment alleging that Cargill was the statutory employer of Rowe and that Rowe's exclusive remedy for his injuries was workmen's compensation. The trial court granted defendants' motion for summary judgment but did not rule on the exception of no cause of action. The Court of Appeal affirmed the summary judgment. 461 So.2d 603. We granted writs to consider whether under these facts summary judgment was proper.

Cargill, Inc. is a world wide agricultural company which deals with the merchandising, transportation and sale of agricultural commodities. Rowe's injury occurred at Cargill's bulk liquid import facility in Reserve, Louisiana. The deposition of Mr. Dameron, who is the regional manager for Cargill, states that the Reserve facility is responsible for loading bulk liquids such as molasses, soybean oil, sunflower oil and coconut oil onto ships, railcars and other types of transportation. Six to eight weeks prior to the accident, Cargill scheduled the removal of a Worthington centrifugal pump so that the pump could be cleaned and rebuilt. Mr. Dameron indicated that this was routine maintenance and that it was necessary to schedule the maintenance work in advance because when the pump is not in operation, the liquids that are stored in the various tanks cannot be removed. Likewise, if there was any delay in the repairs, Mr. Dameron stated it cost Cargill approximately $500 per hour to delay a vessel.

Under the Cargill safety procedures, the electric power is disconnected prior to removing the pump. It was Rowe who performed this initial disconnection. The Cargill employees then removed the pump and made the necessary repairs. Likewise, it was Cargill employees who reinstalled the pump when the repairs were completed. After the pump was reinstalled, Rowe made the necessary electrical connections to the motor. When the pump was tested and began to turn, a coupling was thrown from the shaft which struck Rowe in the leg.

The Cargill bulk liquid facility employs approximately 25 people. None of these people are employed as electricians because there is not enough electrical work to justify a full time electrician. Therefore, it is routine policy to employ outside electrical contractors for electrical work at the facility. Cargill also has a grain export facility in Reserve, Louisiana, which is located on the same tract of land as the bulk liquid facility. However, these are entirely separate divisions of Cargill, Inc. and have entirely separate management and personnel. Unlike the liquid bulk facility, the grain elevator maintains a staff of electricians who are capable of performing the same work which Cargill contracted with Ace to perform. In the past, the bulk liquid facility has borrowed these electricians to perform work at the bulk liquid facility. However, the borrowed electrician primarily performed minor electrical work and have never performed the type of work which was being performed by Rowe when he was injured. Mr. Dameron stated that it was both time consuming and cost inefficient to borrow the electricians from the grain elevator and for these reasons, the electrical work at the bulk liquid facility was contracted to Ace.

In order for Cargill, the principal, to be the statutory employer of Rowe under La.R.S. 23:1032, Cargill must show that the work performed by Rowe was a part of Cargill's "trade, business, or occupation" and that Cargill was engaged in that trade, business or occupation at the time of the injury. Lewis v. Exxon Corporation, 441 So.2d 192 (La.1983) on rehearing; Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978). Likewise, the determination of whether a principal is a statutory employer is a factual question and must be determined on a case by case basis. Lewis v. Exxon Corporation, supra. Generally, in order to be within a principal's trade, business or occupation, it must be routine or customary. Lewis v. Exxon Corporation, supra; Benson v. Seagraves, 436 So.2d 525 (La.1983). If the work being performed by the contractor's employee is customarily performed by employees of the principal, it is part of the principal's trade, business or occupation. Benson v. Seagraves, supra. General maintenance and repair work, which by their nature allow the smooth and continued operations of the principal, are part of the trade, business or occupation of the principal. Lewis v. Exxon Corporation, supra; Barnes v. Sun Oil Co., supra; 1C A. Larson, the Law of Workmen's Compensation, Sec. 51.23 (1982). The scope of the statutory "work" also is important. The specific task to which an individual employee is put should not be determinative of his coverage under the act. Instead, the entire scope of the work contract must be considered. Lewis v. Exxon Corporation, supra; Malone, Principals Liability for Workmen's Compensation to Employees of Contractors, 10 La.L.Rev. 25 (1949).

The Court of Appeal found that employees of the bulk liquid facility borrowed electricians from the grain elevator facility and that these electricians were capable of performing the work at which Rowe was injured. Likewise, they found that on a nationwide basis, this type of work is done by Cargill employees. While these facts may be relevant, we feel that the close proximity of Cargill, Inc. electricians is not essential to determining...