Guillory v. Newpark Environmental Services, LLC

Filing 29

ORDER & REASONS denying without prejudice 12 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN GUILLORY

CIVIL ACTION

VERSUS

NO. 12-2169

NEWPARK ENVIRONMENTAL
SERVICES, L.L.C.

SECTION “B”(5)

ORDER AND REASONS
Before the Court is Defendant Newpark Environmental Services,
L.L.C.'s (“Newpark”) Motion for Summary Judgment. (Rec. Doc. No. 12
&

12-1).

In

response,

Plaintiff

John

Guillory

(“Guillory”)

submitted a Memorandum in Opposition to the Motion for Summary
Judgment.

(Rec.

a

Reply

Memorandum in Support of its Motion for Summary Judgment.

(Rec.

Doc. No. 28).

Doc.

No.

27).

Newpark

also

filed

Accordingly, and for the reasons articulated below,

IT IS ORDERED that Newpark’s Motion for Summary Judgment is
DENIED WITHOUT PREJUDICE TO REURGE.1
PROCEDURAL AND FACTUAL HISTORY
Guillory was an employee of Original USA General Labor, LLC
and USA Environmental Services, Inc. ("USA"), starting in March of
2012.

(Rec.

Doc.

No.

27

at

1).

Newpark

is

an

oil

and

gas

environmental company which entered into a service agreement with
USA.

(Rec. Doc. No. 1-1 at 2, 12-1 at 1).

As an employee of USA,

Guillory was sent to work as a rigger at Newpark’s yard on May 18-

1

We are grateful for the work on this case by Matt S. Landry, a Tulane
University Law School extern with our Chambers.

19, 2012. Id. at 1-2.

On May 19, 2012, Guillory was helping to

unload a tank from a truck at Newpark's yard.

(Rec. Doc. No. 12-1

at 2). Guillory alleges that as he was attempting to attach straps
to the tank so that it could be lifted off of the truck with a
crane, the crane operator (a Newpark employee) suddenly, and
without warning, swung the crane's cable block at Guillory's head
several times.

(Rec. Doc. No. 27 at 2).

Guillory raised his hands

to protect his face and his fingers were caught in the pulley
system of the crane.

Id.

This injury resulted in the amputation

of three of Guillory's fingers.

Id.

Guillory filed suit in state

court on August 9, 2012, seeking damages for physical pain and
suffering, mental pain and anguish, medical expenses, and past,
present, and future lost earnings.

(Rec. Doc. No. 1-1 at 3).

Newpark removed the action from the Civil District Court for
the Parish of Orleans to this Court pursuant to 28 U.S.C. §§ 1332
and 1441, because the parties are completely diverse and the amount
in controversy is greater than $75,000. (Rec. Doc. No. 1).
LAW and ANALYSIS
I. Standard of Review
Summary judgment is proper if the pleadings, depositions,
interrogatory

answers,

and

admissions,

together

with

any

affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
2

477 U.S. 317, 327 (1986). A genuine issue exists if the evidence
would

allow

a

reasonable

jury

to

return

a

verdict

for

the

nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
Although

the

Court

must

consider

the

evidence

with

all

reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial. Webb v. Cardiothoracic
Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The nonmovant must go beyond the pleadings and use affidavits,
depositions, interrogatory responses, admissions, or other evidence
to establish a genuine issue. Webb, 139 F.3d at 536. Accordingly,
conclusory rebuttals of the pleadings are insufficient to avoid
summary judgment. Travelers Ins. Co. v. Liljeberg Enter., Inc. 7
F.3d 1203, 1207 (5th Cir. 1993).
II. Louisiana Law on Statutory Employees
When this Court sits in diversity, the law of the state in
which the controversy arises applies. Erie R. Co. v. Tompkins, 304
U.S. 64, 68 (1938). Indeed, “[t]here is no federal general common
law.” Id.

Furthermore, both parties concede that Louisiana law is

applicable. See (Rec. Doc. Nos. 12 & 27-28). Therefore, the Court
looks to Louisiana law to resolve the instant issue.
If an employee suffers an injury at work he can only recover
through Louisiana’s Labor and Worker’s Compensation statute, unless
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the injury was intentional or the employer is not technically a
“statutory employer.” La. R.S. § 23:1032. If the employer and
employee have a contract which states that the employer is a
statutory employer, then there is a rebuttable presumption of a
statutory employer relationship which “may be overcome only by
showing that the work is not an integral part of or essential to
the

ability

principal’s
23:1061(A)(3)

of

the

goods,

principal

products,

(emphasis

to

or

added).

generate

services.”2

The

plaintiff

that
La.
can

individual
Rev.
rebut

Stat.
this

presumption of statutory employment if he makes an evidence-based
argument that the job he was performing when he suffered the injury
was not an integral part of the principal’s operation. See Prejean
v. Maintenance Enterprises, Inc. 2008-0364 (App. 4th Cir. 3/25/09);
98 So. 3d 766, 776. For example, in Prejean, the Louisiana Fourth

2
Courts look to the following factors when analyzing whether a
statutory employer relationship exists in regards to La. Rev. Stat.
23:1061(A)(3):
(1) The nature of the business of the alleged principal;
(2) Whether the work was specialized;
(3) Whether the contract work was routine, customary,
ordinary or usual;
(4) Whether the alleged principal customarily used his own
employees to perform the work, or whether he contracted out
all or most of such work;
(5) Whether the alleged principal had the equipment and
personnel capable of performing the contract work;
(6) Whether those in similar businesses normally contract
out this type of work or whether they have their own
employees perform the work;
(7) Whether the direct employer of the claimant was an
independent business enterprise who insured his own workers
and included that cost in the contract; and
(8) Whether the principal was engaged in the contract work
at the time of the incident.
Stephens v. Witco Corp., 198 F.3d 539, 541 (5th Cir. 1999). These
are all factual questions.

4

Circuit noted that a factual issue remained where a plaintiff
suffered an eye injury working at a refinery, because the employee
disputed whether his work was an integral part of the refinery’s
operation. Id. The court explained that
Mr. Prejean argues that the work he was
performing . . . , which consisted of cleanup,
repair, and reconstruction of fire-damaged
equipment, was not an integral part of or
essential to the ability of Murphy [Oil] to
produce and distribute petroleum products. . .
. [W]hether Mr. Prejean can overcome that
presumption constitutes an issue of fact which
suffices to preclude summary judgment in this
case. See La.Code Civ. Pro. art. 966; South
Central Bell Tel. Co. v. Sewerage & Water Bd.
of New Orleans, 94–1648 (La. App. 4 Cir.
3/16/95),
652
So.2d
1090,
1092–93.
Accordingly, the trial court properly denied
Murphy Oil's motion for partial summary
judgment.
Id.; but see id. at 779 (Lombard, J., dissenting)(citing Applegarth
v. Transamerican Ref. Corp., 00–1547 (La.App. 5 Cir. 2/28/01); 781
So.2d 804)(“Several Louisiana courts have held that reconstruction
projects such as the one [in question] were essential to the
ability

of

the

refinery

to

generate

its

goods,

products

or

services”).
Here, both parties agree that the contract between USA and
Newpark

states

that

"statutory employees."

USA

employees,

like

Guillory,

would

be

(Rec. Doc. Nos. 12-1 at 4, 27 at 5).

Therefore, Guillory must rebut the presumption that a statutory
employer relationship exists.

To do so, Guillory first challenges

his role as an "integral" part of Newpark's work.
5

(Rec. Doc.

No. 27 at 4-5).

Newpark argues that “rigging” is “part and parcel

of its operation,” and therefore Guillory performed integral work
(Rec. Doc. No. 12-1 at 5-9).

To establish that a genuine issue of

material fact exists as to whether Newpark employees regularly
perform rigging work, Guillory presents his deposition testimony.
See (Rec. Doc. No. 27 at 5 (citing Rec. Doc. 27-2 at 44:2-46:5,
57:16-19)). In this testimony, Guillory explains that his coworker, Victor Rodriguez, a signalman, was hired to perform a
specialized task. See (Rec. Doc. No. 27-2 at 10-11). Guillory uses
this testimony to argue that because Guillory and Rodriguez were
hired to work together for two days, he was not a mere laborer and
was therefore hired to perform a specialized task.(Rec. Doc. No. 27
at 5). Consideration of the weight of this evidence is a task
reserved for the factfinder at trial.
Furthermore, because the deadline for discovery is not until
September 2013, see (Rec. Doc. No. 26 at 2), and further factual
development may resolve this issue before trial,
IT IS ORDERED that Newpark's Motion for Summary Judgment is
DENIED WITHOUT PREJUDICE TO REURGE.
New Orleans, Louisiana, this 1ST day of July, 2013.

____________________________
UNITED STATES DISTRICT JUDGE

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