The Shaw Group v. Kulick

• Decision Date: 08 April 2005
• Docket Number: No. 2004 CA 0697.,No. 2004 CA 0698.,2004 CA 0697.,2004 CA 0698.
• Parties: THE SHAW GROUP v. Christian D. KULICK. Christian D. KULICK v. THE SHAW GROUP.
• Court: Louisiana Supreme Court

915 So.2d 796

THE SHAW GROUP v. Christian D. KULICK.

Christian D. KULICK v. THE SHAW GROUP.

No. 2004 CA 0697.

No. 2004 CA 0698.

Court of Appeal of Louisiana, First Circuit.

April 8, 2005.

COPYRIGHT MATERIAL OMITTED

Michael B. Forbes, Hammond, for Appellant Christian D. Kulick.

Brent M. Steier, John J. Rabalais, Janice B. Unland, Robert T. Lorio, Diana L. Tonagel, Covington, for Appellee The Shaw Group.

Before: PARRO, KUHN, and WELCH, JJ.

WELCH, J.

In this workers' compensation case, the employee, Christian Kulick, appeals from a judgment granting a motion for summary judgment filed by his employer, The Shaw Group ("Shaw"), that denied workers' compensation benefits to Christian Kulick based on the intoxication defense set forth in La. R.S. 23:1081. Finding that genuine issues of material fact preclude summary judgment, we reverse the judgment of the workers' compensation judge and remand this matter for further proceedings in accordance with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On May 30, 2003, Christian Kulick was removing bolts from a manway hole on a storage vessel when the 750 pound cover to the manway hole shifted and fell on him, fracturing both sides of his pelvis as it trapped him between the manway cover and the storage vessel.¹ It is undisputed that at the time of the accident, Christian Kulick was in the course and scope of his employment with Shaw. It is also undisputed that Shaw had in effect a written and promulgated substance abuse rule or policy providing for testing for drug use, and that the urine specimen obtained from Christian Kulick after the accident yielded positive results for THC (marijuana).

Shaw commenced proceedings to contest Christian Kulick's entitlement to workers' compensation benefits on the basis that he forfeited his right to workers' compensation benefits due to intoxication pursuant to La. R.S. 23:1081. Christian Kulick initiated separate proceedings to recover workers' compensation benefits, contending that he was not intoxicated at the time of the accident. He further contended that regardless of the positive drug screen, the accident was unavoidable. The two proceedings were consolidated by agreement of the parties.

Shaw filed a motion for summary judgment based on the intoxication defense and the workers' compensation judge rendered judgment granting Shaw's motion. Christian Kulick appeals this judgment on the grounds that genuine issues of material fact exist regarding whether Christian Kulick's presumed intoxication at the time of the accident "was not a contributing cause of the accident."² We agree.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Craig v. Bantek West, Inc., 2004-0229 (La.App. 1st Cir.9/17/04), 885 So.2d 1241, 1244-45; Western Sizzlin Steakhouse v. McDuffie, 2002-0935 (La.App. 1st Cir.3/28/03), 844 So.2d 355, 357, writ denied, 2003-1147 (La.6/20/03), 847 So.2d 1236. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854 (La.App.1st Cir.3/28/03), 844 So.2d 339, 341.

When appropriate under Articles 966 and 967, summary judgment is available in workers' compensation cases. See La. C.C.P. art. 966(A)(2); La. R.S. 23:1317(A); Craig, 885 So.2d at 1244; Sept v. City of Baker, 98-1190 (La.App. 1st Cir.5/18/99), 733 So.2d 748, 751, abrogated on other grounds by Dufrene v. Video Co-Op, Louisiana Workers' Compensation Corp., 2002-1147 (La.4/9/03), 843 So.2d 1066. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230; Allen v. State ex rel. Ernest N. Morial New Orleans Exhibition Hall Authority, 2002-1072 (La.4/9/03), 842 So.2d 373, 377. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482 (La.App. 1st Cir.11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. The review of a summary judgment in a workers' compensation case is conducted in the same manner. Davis v. AMS Tube Corp., 2000-1311 (La.App. 1st Cir.6/22/01), 801 So.2d 466, 468, writ denied, 2001-2122 (La.11/2/01), 800 So.2d 877.

In Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751, the Louisiana Supreme Court set forth the following parameters for determining whether an issue is genuine or a fact is material:

In determining whether an issue is "genuine," courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. . . .

A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. "[F]acts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." Simply put, a "material" fact is one that would matter on the trial on the merits. [Citations omitted.] (Emphasis added.)

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038 (La.App. 1st Cir.9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637. Thus, we now turn to a discussion of the law applicable to this case.

INTOXICATION DEFENSE

In order for Christian Kulick to receive workers' compensation benefits, he must establish by a preponderance of the evidence, "personal injury by accident arising out of and in the course of his employment" with Shaw. La. R.S. 23:1031(A). This issue is undisputed. However, La. R.S. 23:1081(1)(b) provides that an employee may not recover workers' compensation benefits if his injury was caused by intoxication, unless the intoxication resulted from activities which were in pursuit of the employer's interests or in which the employer procured the intoxicating beverage or substance and encouraged its use during the employee's work hours. Louisiana Revised Statute 23:1081(5) provides that an employee is presumed to be intoxicated if there is evidence of use of a non-prescribed controlled dangerous substance. In such cases and in order to support a finding of intoxication, an employer need only prove the use of such drugs by the employee by a preponderance of the evidence. La. R.S. 23:1081(8). Appropriate drug tests performed as a result of a written and promulgated drug testing policy are admissible as evidence in such cases. La. R.S. 23:1081(8) and (9). Once the employer has satisfied its burden of proving intoxication at the time of the accident, a presumption of causation due to the intoxication arises. La. R.S. 23:1081(12); see also La. R.S. 23:1081(8). The burden then shifts to the employee to prove that "the intoxication was not a contributing cause of the accident. . . ." La. R.S. 23:1081(12).

According to this statute, there are two separate presumptions that apply in intoxication cases. First, evidence of on- or off-the-job use of a non-prescribed controlled substance creates a presumption that the employee was intoxicated at the time of the accident. Once the employer has proven that the employee was intoxicated, the second presumption arises, that such intoxication caused the accident. At that point, the burden of proof shifts to the employee to prove by a preponderance of the evidence that the intoxication was not a contributing cause of the accident. If he does so, the intoxication defense of the employer is defeated. Johnson v. EnviroBlast, 2001-0200 (La.App. 1st Cir.12/28/01), 804 So.2d 924, 927.

On a motion for summary judgment, the workers' compensation judge is precluded from making evaluations of credibility of the witnesses.³ The credibility of a witness is a question of fact, thus, a trial judge cannot make credibility determinations on a motion for summary judgment. Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533 (La.2/20/04), 866 So.2d 228, 234; Independent Fire Ins. Co., 755 So.2d at 236; and Boland v. West Feliciana Parish Police Jury, 2003-1297 (La.App. 1st Cir.6/25/04), 878 So.2d, 808, 814, writ denied, 2004-2286 (La.11/24/04), 888 So.2d 231. In deciding a motion for summary judgment, the court must assume that all of the...