Zuccarello v. Exxon Corp.
| Decision Date | 01 April 1985 |
| Docket Number | No. 84-3122,84-3122 |
| Citation | 756 F.2d 402 |
| Parties | Phillip Wayne ZUCCARELLO, David Zuccarello, Allison Zuccarello, Brian Zuccarello, and Iva Faye Smith Zuccarello, Plaintiffs-Appellants, v. EXXON CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Durant, Pierce & Malone, A. Clay Pierce, Jr., Baton Rouge, La., for David, Phillip, Brian and Allison Zuccarello.
Donna W. Lee, Baton Rouge, La., for Ivy Zuccarello.
William J. Sommers, Jr., Thomas K. Wetzel, Randall M. Ebner, New Orleans, La., for Exxon.
Appeal from the United States District Court for the Middle District of Louisiana.
Before CLARK, Chief Judge, WISDOM, and HIGGINBOTHAM, Circuit Judges.
The plaintiffs sought tort damages for the injuries and death of the decedent, an employee of an independent contractor hired by the defendant Exxon to perform work at Exxon's Baton Rouge, Louisiana refinery. Exxon asserted the defenses of contributory negligence and immunity in tort under La.Rev.Stat.Ann. Sec. 23:1061 as the "statutory employer" of the decedent. The negligence issues were tried to a jury and the statutory employer issue was, by stipulation of the parties, tried to the judge. The jury found that Exxon was negligent and that the decedent was not contributorily negligent and had not assumed the risk of harm. The district court determined after trial that Exxon qualified as the statutory employer of the decedent and that Exxon was therefore liable only for workmen's compensation payments and not for damages in tort. Accordingly, the court dismissed the plaintiffs' suit. We hold that the court's finding that Exxon qualified as the statutory employer of the decedent under Sec. 23:1061 was not clearly erroneous and we therefore affirm.
This case is a wrongful death and survival action brought by the family of the deceased, Jack Zuccarello. Zuccarello was employed as an electrician by Saia Electric Inc. Saia entered into a contract with the defendant Exxon to perform electrical and instrumentation work at Exxon's Baton Rouge refinery. On November 15, 1978, Zuccarello was injured at the Exxon plant while performing his duties for Saia when he stepped into a hole filled with scalding water that had come from an underground steam line utilized by Exxon in its refining operations. Zuccarello suffered severe burns to his foot, ankle, and leg. The burns did not heal properly, apparently because of a preexisting circulatory problem. On May 24, 1979, Zuccarello died less than two days after undergoing vascular surgery.
Two of Jack Zuccarello's sons, Phillip and David, brought a wrongful death and survival action in federal district court against Exxon under Art. 2315 of the Louisiana Civil Code. 1 Jurisdiction was based upon diversity of citizenship. Zuccarello's surviving spouse, Iva Faye Smith Zuccarello, and two other surviving children, Brian and Allison, intervened as parties plaintiff. The intervenors' claims were limited to survival of action claims because their wrongful death actions had prescribed under art. 2315(D) 2. Exxon filed a third-party demand against Saia for indemnity under the terms of the contract between Exxon and Saia.
The matter was tried to a jury upon theories of negligence and strict liability. The jury answered special interrogatories and found that Exxon's negligence caused the injuries to Zuccarello, that Exxon was in control of a defective item--the steam line system--which created an unreasonable risk of harm, that the defective steam system caused the injuries, and that Zuccarello was not contributorily negligent and did not assume the risk of harm. The jury also found that Saia was not negligent and awarded damages to Zuccarello for lost earnings, pain and suffering before death, medical expenses, and funeral expenses in the amount of $216,441.45. The jury declined to award any damages to Phillip and David.
Exxon asserted as an affirmative defense that it was immune from any tort claim by virtue of La.Rev.Stat.Ann. Sec. 23:1061 (West Supp.1984). Under Sec. 23:1061, a "principal" may become liable to pay workmen's compensation benefits to the employee of a subcontractor. 3 That section provides in pertinent part:
Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him....
A person who qualifies as a "principal" under Sec. 23:1061 is commonly referred to as a "statutory employer". 4 Under Louisiana law, workmen's compensation is an exclusive remedy. Any employer who is liable for workmen's compensation benefits, including a statutory employer under Sec. 23:1061, is immune from tort liability for the occurrence upon which the compensation claim is based. 5 La.Rev.Stat.Ann. Sec. 23:1032 (West Supp.1984); Brown v. Cities Service Oil Co., 5 Cir.1984, 733 F.2d 1156, 1160.
In the trial of Exxon's statutory employer defense, while the court was considering the issue, the Louisiana Supreme Court granted a rehearing in Lewis v. Exxon Corp., La.1983, 441 So.2d 197 (opinion on rehearing), to reconsider whether Exxon was the statutory employer of an employee of a contractor assisting in the conversion of Exxon's Baton Rouge plant from the production of ethanol to the production of isopropanol. The district court solicited comments from counsel as to whether it should withhold its decision pending resolution of Lewis, but decided to proceed with its decision. The court found that Exxon was Jack Zuccarello's statutory employer, entered judgment based on this finding, and dismissed the suit.
The plaintiffs filed a motion for a new trial upon the ground that a letter of authorization that was supposed to be attached to the contract between Exxon and Saia, defining the scope of the work Saia was doing for Exxon when Zuccarello was injured, had not been introduced into evidence. The plaintiffs asserted that they were entitled to consideration of the full contractual agreement in the court's ruling upon the statutory employer defense. The plaintiffs then filed an amended motion for a new trial after the Louisiana Supreme Court decided the Lewis case, alleging that the court should reconsider its findings of fact and conclusions of law in the light of that case. After oral argument and further briefing of the issue, the district court denied the plaintiffs' motion for a new trial and amendment of findings. The court again ruled that Exxon was the statutory employer of Zuccarello. The plaintiffs appealed.
The most recent decision of the Louisiana Supreme Court concerning the statutory employer defense is Lewis v. Exxon Corp., La.1983, 441 So.2d 197 (opinion on rehearing). The plaintiffs contend that Lewis controls this case and that Exxon did not meet the test for statutory employer set forth in Lewis. 6 Because Lewis had not been decided when the district court issued its original findings of fact and conclusions of law, we must consider whether the district court applied a proper standard under Louisiana law for deciding whether Exxon was entitled to the statutory employer defense.
In its original findings of fact and conclusions of law, the district court relied on the test for statutory employer articulated in Blanchard v. Engine & Gas Compressor Services, Inc. (Blanchard II ), 7 5 Cir.1980 613 F.2d 65. The Court in Blanchard II reviewed Louisiana jurisprudence concerning the statutory employer doctrine and concluded that the proper standard for judging whether a principal qualifies as a statutory employer "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. at 71. More specifically, the Court further stated:
[W]e should first consider whether the particular principal involved in the case customarily does the type of work performed by the contractor and whether the contractor's work is an integral part of the work customarily performed by the principal. If either of these situations exist, then there is a statutory employment relationship, and the inquiry ends there.
Id. The Court noted that in applying the test "it is proper to consider all facts which would or would not suggest a statutory employment relationship". Id. One such fact is "whether the principal, or others engaged in like operational activities, normally subcontract out the work or whether they have employees who can, and customarily do, do the work". Id.
The district court in the instant case noted that later federal cases have elaborated upon the Blanchard II test. In Hall v. Crown Zellerbach Corp., 5 Cir.1983, 715 F.2d 983, 987, the Court explained that although "it is not determinative whether the employee performs duties (e.g. painting, welding, etc.) which the principal's employees also perform, it is relevant to a Blanchard II inquiry whether the project on which the employee in question was injured was the sort of project which the principal usually employed his own employees to perform (e.g. new construction or routine repair)". The district court concluded from Crown Zellerbach that "it is not just the particular task of Zuccarello that must be examined, but the type of work performed by the independent contractor and its relationship to the work of the principal, Exxon". Zuccarello v. Exxon Corp., No. 79-575-A, slip...
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