Rafael Joseph, et al v. Shell Chemical Co., et al

Filing

Case: 09-30613

Document: 00511202644

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Date Filed: 08/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30613 August 13, 2010 Lyle W. Cayce Clerk

R A F A E L JOSEPH, P la in t if f -A p p e lla n t , versu s S H E L L CHEMICAL, LP; WYATT CONSTRUCTION, LLC.; MOTIVA ENTERPRISES, LLC; WYATT FIELD SERVICES COMPANY; S & B ENGINEERS AND CONSTRUCTORS, LIMITED; UNIDENTIFIED PARTY, as the Insurer of S&B Engineers and Constructors, Limited, Defendants-Appellees.

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W A L T E R JEREMY DANIELS, IV, P la in t if f -A p p e lla n t , versu s S H E L L CHEMICAL, LP; MOTIVA ENTERPRISES, LLC; WYATT FIELD SERVICES COMPANY, D e fe n d a n t s -A p p e lle e s .

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Date Filed: 08/13/2010

Appeals from the United States District Court fo r the Eastern District of Louisiana N o . 2:07-CV-5489

B e fo r e JOLLY, SMITH, and OWEN, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:*

R a fa e l Joseph and Walter Daniels, IV, sued Shell Chemical, LP ("Shell"), M o t iv a Enterprises, LLC ("Motiva"), and Wyatt Field Services Company ("Wya t t " ) for personal injuries they sustained while performing maintenance at an o il refinery. The district court granted summary judgment for Shell, Motiva, and W y a t t on the ground that they were statutory employers. We affirm.

I. S h e ll and Motiva hired Wyatt as a general contractor to perform a maint e n a n c e project at Motiva's refinery. Wyatt subcontracted with Atlantic Scaffo ld in g Company ("Atlantic") to conduct the necessary scaffolding. Joseph and D a n ie ls , employees of Atlantic, were injured during the course of the project w h e n a steam valve blew out, permitting a release of hot oil and steam. Joseph and Daniels sued Shell, Motiva, and Wyatt in tort to recover dama g e s for their injuries. Shell/Motiva 1 and Wyatt moved for summary judgment, c la im in g to be statutory employers under section 23:1061(A) of the Louisiana

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Shell and Motiva filed a joint motion for summary judgment and a joint brief on ap-

peal.

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No. 09-30613 R e v is e d Statutes. The district court granted both motions, holding that Joseph a n d Daniels were limited to recovery under Louisiana's workers' compensation s c h e m e , LA. REV. STAT. ANN. § 23:1031 et seq. Joseph and Daniels appeal.

II. W e review a summary judgment de novo, applying the same standard as d id the district court. Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5 t h Cir. 2003). Summary judgment is proper "if the pleadings, the discovery a n d disclosure materials on file, and any affidavits show that there is no genuine is s u e as to any material fact and that the movant is entitled to judgment as a m a t t e r of law." FED. R. CIV. P. 56(c). We view all facts and evidence in the light m o s t favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros. I n c ., 453 F.3d 283, 285 (5th Cir. 2006).

III. J o s e p h and Daniels claim that Wyatt, Shell, and Motiva failed to meet the s t a t u t o r y employer requirements under Louisiana law. We disagree. S u b section 23:1061(A)(1) provides that a general contractor, or "principal," is a statutory employer when it "undertakes to execute any work, which is a part o f his trade, business, or occupation and contracts with any person, in this Sect io n referred to as the `contractor', for the execution by or under the contractor o f the whole or any part of the work undertaken by the principal . . . ." The s t a t u t e then describes two alternative situations that give rise to statutory emp lo y m e n t : (1) where the principal has contracted to perform work and subcont r a c t s all or a portion of the work to another (also known as the "two contract" t h e o r y ), LA. REV. STAT. ANN. 23:1061(A)(2); or (2) where the principal enters a w r it t e n contract recognizing it as a statutory employer of the other party's em-

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No. 09-30613 p lo y e e s , LA. REV. STAT. ANN. 23:1061(A)(3). See Daigle v. McGee Backhoe & Doz e r Serv., 16 So. 3d 4, 5 (La. App. 5th Cir.), writ denied, 18 So. 3d 113 (La. 2009). J o s e p h and Daniels first claim that the district court erred in granting Wya t t 's motion for summary judgment under subsection 23:1061(A)(2). That subs e c t io n states: "A statutory employer relationship shall exist whenever the serv ic e s or work provided by the immediate employer is contemplated by or include d in a contract between the principal and any person or entity other than the e m p lo y e e 's immediate employer." § 23:1061(A)(2). In Allen v. State ex rel. Ern e s t N. Morial-New Orleans Exhibition Hall Auth., 842 So. 2d 373, 379 (La. 2 0 0 3 ), the court held that the "two contract" defense applies where "(1) the princ ip a l enters into a contract with a third party; (2) pursuant to that contract, w o r k must be performed; and (3) in order for the principal to fulfil its contractual o b lig a t io n to perform the work, the principal enters into a subcontract for all or p a r t of the work performed." J o s e p h and Daniels argue that the court erred in granting Wyatt's motion fo r summary judgment, because the subcontract between Wyatt and Atlantic v io la t e d the terms of the general contract between Shell/Motiva and Wyatt. More specifically, they contend that Wyatt's failure to obtain Shell/Motiva's writt e n consent before hiring a subcontractor, as required by the general contract, p r e c l u d e s it from meeting the second and third elements of Allen. As for the s e c o n d element, Joseph and Daniels claim that hiring Atlantic without prior w r it t e n approval was not "pursuant to" Wyatt's contract with Shell/Motiva, but r a t h e r in breach of it. Similarly, regarding the third element, they maintain that Wyatt's subcontract with Atlantic was an "avoidance" of the general cont r a c t , rather than a "fulfillment." Those arguments are clever but ultimately unconvincing. Joseph and D a n ie ls cannot concoct a linguistic intricacy to overcome the obvious import of

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Date Filed: 08/13/2010

No. 09-30613 s u b s e c t io n 23:1061(A)(2). Stated in terms of the Allen elements, (1) Wyatt ent e r e d into a contract with Shell/Motiva; (2) pursuant to that contract, maint e n a n c e work had to be performed; and (3) to complete the job, Wyatt subcont r a c t e d with Atlantic to erect the necessary scaffolding. Wyatt's situation was a textbook case of statutory employment under the "two contract" theory. J o s e p h and Daniels next claim that the district court erred in granting S h e ll/M o t iv a 's motion for summary judgment under subsection 23:1061(A)(3). That subsection states: Except in those instances covered by Paragraph (2) of this Subs e c t io n , a statutory employer relationship shall not exist between t h e principal and the contractor's employees, whether they are dire c t employees or statutory employees, unless there is a written cont r a c t between the principal and a contractor which is the employee's im m e d ia t e employer or his statutory employer, which recognizes the p r in c ip a l as a statutory employer. When the contract recognizes a s t a t u t o r y employer relationship, there shall be a rebuttable pres u m p t io n of a statutory employer relationship between the principal a n d the contractor's employees, whether direct or statutory employe e s . This presumption may be overcome only by showing that the w o r k is not an integral part of or essential to the ability of the princ ip a l to generate that individual principal's goods, products, or serv ic e s . L A. REV. STAT. ANN. § 23:1061(A)(3). J o s e p h and Daniels claim that Shell and Motiva did not have a contract w it h Atlantic, the immediate employer, so they cannot be statutory employers. As the district court found, however, Shell and Motiva had a written contract w it h Wyatt that made them statutory employers of Wyatt's employees, whether s t a t u t o r y or direct. Given that Wyatt was Joseph's and Daniels's statutory emp lo y e r under subsection 23:1061(A)(2), there is a rebuttable presumption that S h e ll and Motiva were also their statutory employers. Joseph and Daniels have n o t even attempted to rebut that presumption. Therefore, the district court was

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Date Filed: 08/13/2010

No. 09-30613 c o r r e c t in holding that Shell and Motiva met subsection 23:1061(A)(3)'s statutory e m p lo y m e n t requirements. A F F IR M E D .

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