Guillory v. Newpark Environmental Services, LLC
Filing
62
ORDER AND REASONS granting 52 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 10/22/2013. (ijg, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN GUILLORY
CIVIL ACTION
VERSUS
NO. 12-2169
NEWPARK ENVIRIONMENTAL
SERVICES, L.L.C.
SECTION “B”(5)
ORDER AND REASONS
Nature of Motions and Relief Sought:
Before the Court are Defendant Newpark Environmental Services,
L.L.C.'s
(“Newpark”)
Re-Urged
Motion
for
Summary
Judgment,
Plaintiff John Guillory's (“Guillory”) Opposition, and Newpark's
Reply. (Rec. Doc. No. 52, 52-1, 57 & 61).
Accordingly, and for the
reasons articulated below,
IT IS ORDERED that the Motion for Summary Judgment is GRANTED.
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.
57
at
1).
Newpark
is
an
oil
and
gas
environmental company which entered into a Master Service Agreement
("MSA") with USA.
(Rec. Doc. No. 1-1 at 2, 12-1 at 1). The MSA
provided that Newpark was a "Statutory Employer" for the purposes
of Louisiana Workers' Compensation law. (Rec. Doc. No. 52-1 at 3).
As an employee of USA, Guillory was sent to work as a rigger
at Newpark’s yard on May 18 and 19, 2012.(Rec. Doc. No. 57 at 1).
USA furnished him to Newpark pursuant to the MSA. (Rec. Doc. No.
12-6 at 3). On May 19, 2012, during his second day of work at the
yard, Guillory was helping to unload a tank from a truck. (Rec.
Doc. No. 12-1 at 2). Specifically, he was fastening the tank to a
crane block for transport. (Rec. Doc. No. 57 at 1). Guillory
alleges that as he was attempting to attach straps to the tank, the
crane operator prematurely and without warning swung the crane's
cable block in Guillory's direction. Id. at 2. Guillory raised his
hands to protect his face and his fingers were caught in the
crane's pulley system. Id.
The resulting injuries were severe and
resulted in the amputation of three of Guillory's fingers. Id.
Guillory filed suit in state court against Newpark on August 9,
2012, alleging negligence and seeking various damages. (Rec. Doc.
No. 1-1 at 3).
Newpark now seeks summary judgment on the grounds that it is
a "statutory employer" and immune from the instant suit under La.
R.S. 23:1021. The Court denied Newpark's prior Motion for Summary
Judgement
without
prejudice
to
reurge,
noting
that
further
discovery may be needed.1 (Rec. Doc. No. 29 at 6).
1
As Newpark points out, both the Court's prior order denying summary
judgment and the parties briefs relied on case law that has been legislatively
overruled. The parties cited and the Court applied the "totality of the
circumstances test" set forth in Kirkland v. Riverwood Int'l USA, 681 So.2d
336, 337 (La. 1996). That test was expressly overruled when the Louisiana
legislature amended Louisiana's workers compensation statute with the burdenshifting scheme applied herein. See 1997 La. Acts, No. 315 § 2; Berthelot v.
Murphy Oil, Inc., CIV.A. 09-4460, 2010 WL 103871 at *3 (E.D. La. 2010); Conner
v. Kraemer-Shows Oilfield Servs., CIV.A. 11-2206, 2013 WL 2644522 at *3 (W.D.
La 2013).
2
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,
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).
3
II. Tort Immunity Under Louisiana Workers' Compensation Laws
In this diversity suit, and as both parties concede, Louisiana
law controls. (See Rec. Docs. No. 52-1 at 5 & 57 at 3).
Under
the
Louisiana
Workers'
Compensation
Act,
workers'
compensation payments provide the exclusive remedy for work-place
injuries that were not intentionally caused. See La. R.S. 23:1021
et seq.; Morena v. Entergy Corp., 105 So.3d 40, 49 (La.2012); Allen
v. State of Louisiana,842 So.2d 373, 378-81 (La.2003). Thus,
employers
are
immune
from
suits
seeking
recovery
for
non-
intentional torts alleged in the scope of a plaintiff's employment.
See La. R.S. 23:1032(A).
This immunity applies to both direct employers and entities
contracting
for
labor
with
direct
employers.
See
La.
R.S.
23:1032(A)(1)(limiting rights and remedies against employers "or
any principal." ). Thus, Louisiana's workers' compensation scheme
employs the concept of a "statutory employer" to confer immunity
and impose the corresponding obligations on companies that procure
labor through third party contractors. 14 H. Alston Johnson, La.
Civ. L. Treatise, Workers' Compensation Law and Practice § 364 (5th
ed. 2003).
Such
non-direct
employers,
or
"principals"
in
statutory
parlance, may establish immunity as a statutory employer in two
ways: by invoking the "trade, business or occupation defense," or
by invoking the "two contract theory."
4
Allen, 842 So.2d at 378;
see also Berthelot v. Murphy Oil, Inc., CIV.A. 09-4460, 2010 WL
103871 at *3 (E.D. La. 2010).
Here, Newpark invokes both, (Rec. Doc. No. 52-1 at 5), but the
court need only address the former, which clearly establishes that
Newpark is immune from the instant suit.
A. The Trade, Business, or Occupation Defense
La. R.S. 23:1032(A)(2) provides that a statutory employer
relationship exists "whenever the services or work provided by the
immediate employer is contemplated by or included in a contract
between the principal and any person or entity other than the
employee's immediate employer." La. R.S. 23:1061(A)(2). Where
a
contract between a principal and a contractor states in writing
that the principal is a statutory employer, "there shall be a
rebuttable presumption of a statutory employer relationship between
the principal and the contractor's employees, whether direct or
statutory employees." La. R.S. § 23:1061(A)(3); Conner v. KraemerShows Oilfield Servs., CIV.A. 11-2206, 2013 WL 2644522 at *3 (W.D.
La 2013); Everett v. Rubicon, Inc., 938 So.2d 1032, 1042 (La. App.
1st Cir.2006). Employee-plaintiffs asserting tort claims against a
principal can only rebut this presumption "by showing that [the
plaintiff's] work is not an integral part of or essential to the
ability of the principal to generate [its] goods, products, or
services." La. R.S. § 23:1061(A)(3); Conner at *3; Everett at 1042.
5
Here, Newpark is entitled to a presumption of a statutory
employer relationship. The MSA between Newpark (the principal) and
USA
(the
contractor)
explicitly
labels
Newpark
a
"statutory
employer." Specifically, Section 7 of the MSA states that:
In all cases where the Louisiana Worker’s Compensation
Act, La. R.S. 23:1021, et seq. is applicable, COMPANY
[NEWPARK] and CONTRACTOR [USA] acknowledge and agree
that all work and operations performed by CONTRACTOR
and its employees (defined to include the direct,
borrowed and/or statutory employees of CONTRACTOR)
pursuant to this Agreement are an integral part of and
are essential to the ability of COMPANY to generate
COMPANY’S goods, products or services. Without limiting
the foregoing, COMPANY and CONTRACTOR agree that
COMPANY is and shall be deemed a statutory employer of
CONTRACTOR’S employees (as defined above) for purpose
of La. R.S. 23:1061(A)(3), as the same may be amended
from time to time.
(Rec. Doc. No. 12-7 at 3). Accordingly, the burden to show that
his work was not an "integral part of or essential to the
ability" of Newpark to produce its "goods, products, or services"
passes to Guillory.
The Court finds that Guillory has not produced sufficient
evidence to rebut that presumption. In opposing the instant
motion, Guillory makes no reference to affidavits, depositions,
interrogatories, admissions, or any other evidence. That is, he
has not only failed to produce the evidence required to rebut the
presumption against him, he has not produced any evidence at all.
Instead, Guillory simply asserts in conclusory fashion that his
work as a "general laborer" was not integral to Newpark' work.
6
Generously construed, his argument is simply that because tanks
may be cleaned without the use of cranes, it follows that cranerigging duties are not absolutely necessary to effect Newpark's
tank-cleaning services. (Rec. Doc. No. 57 at 6). This assertion
is insufficient to rebut the burden imposed by La. R.S. §
23:1061(A) and fails to raise a genuine issue of material fact
thereunder.
In opposing Newpark's prior motion for summary judgment,
which this court denied without prejudice to re-urge (see Rec.
Doc. No. 29), Guillory pointed to his own deposition testimony,
contending that it established (1) that the work he performed for
Newpark was "specialized," (2) that Newpark customarily
outsourced such work, and (3) that such work was therefore not
integral to Newpark's services. (Rec. Doc. No. 27 at 5). In
essence, Guillory argued that Newpark customarily outsourced
rigging functions and for that reason such functions cannot be
deemed "integral" or "essential" to production of Newpark's
business.
This argument falls short because Guillory's testimony in no
way establishes a genuine issue of fact as to whether Newpark's
own employees did or did not customarily perform rigging work.
Guillory's deposition is nothing but a description of the day of
the accident. It simply establishes that Guillory worked as a
7
rigger for two days and describes the details of such work.2 In
other words, Guillory's testimony merely recounts Guillory's
2
The entirety of the testimony cited in Guillory's prior opposition
reads as follows:
Q. When you talk about roustabouting, is that different in your
mind than working with the crane?
A. In general, that is basically everything on the yard.
Q. Okay. But for purposes of our discussion, I just want to make
certain. When you are telling me you are talking about you were
rigging, that means you were working with the crane?
A. With the crane. Yes, sir.
Q. And roustabouting would be just the general stuff; anything
else?
A. Everything. Yeah.
Q. Okay. So the day before you had done a good bit of rigging as
well?
A. Basically, all day.
Q. Basically, all day?
A. Yeah.
Q. Was Victor, the day before, was he a signalman too?
A. No. We didn't need him that day.
Q. Okay.
A. Because -- yeah. We didn't need him. The only reason we used
that signalman at that time was because the trailer was in the
wrong place. You use a signalman whenever the crane can't -don't have a visual sight on the rigger. So you need that third
man to actually be the eyes.
Q. So the day before you did not need a signalman, because the
crane operator had a line of sight with his rigger?
A.Exactly.
Q. But on the 19th you needed a signalman, because the crane
operator did not have a line of sight with the rigger, which would
have been you?
A. Just for that particular task, yes, sir. Can we go back?
Q. Sure.
A. I think it was that previous day, which was the 18th, we did
need a signalman, because I was in the boat at that time. I was
unhooking boxes and stuff on the boat. So I was actually too low
to where the crane couldn't see me. So the signalman had to stand
on the dock.
Q. Was the signalman, Victor, there that day? When I say that day,
the 18th.
A. The 18th. At that time.
Q. So Victor would have been the signalman when you were on the
boat on the 18th and Victor was also the signalman at the time of
your injury on the 19th?
A. Yes, sir. Yes, sir. Just came back to me. Sorry
....
Q. And so they would subcontract certain parts of their business
to say USA Environmental to help with the rigging?
A. Exactly.
(Rec. Doc. No. 27-2 at 10-12, 15)
8
knowledge of who did what work on those days; it does not
establish that no Newpark employees performed rigging on those
days, as Guillory contends, let alone that Newpark employees
customarily do not perform such work.
Guillory's testimony also fails to establish a material
issue of fact because outsourcing duties does not render them
non-integral or unessential for the purposes of La. R.S. §
23:1061(A)(3). See, e.g., Conner v. Kraemer-Shows Oilfield
Servs., CIV.A. 11-2206, 2013 WL 2644522 at *3 (W.D. La 2013)
("[W]hether Conner's work was specialized or independent from
that of Exco are not determinative factors in the court's
analysis."); see also Arnold v. Shell Oil Co., 419 F.2d 43, 50
(5th Cir. 1969) (explaining that "if the test...were whether the
employer had any employees engaged in similar functions, the
employer could easily subvert the statute by contracting out all
of the various parts of his business.")
In summary, Guillory has not produced competent evidence to
establish a genuine issue of material fact needed to overcome the
presumption that Newpark is a statutory employer under the
"trade, business, or occupation " defense. In his opposition to
the instant motion, Guillory has made only conclusory claims. In
his prior opposition, the evidence on which he relies does not
support his factual assertions and is not grounds from which a
reasonable person could find in his favor. Accordingly, he has
9
failed to rebut the presumption of a statutory relationship in
favor of Newpark, and summary judgment may be entered against him
on these grounds alone.
B. The Master Service Agreement is Valid and Enforceable
Guillory also argues that the MSA is invalid for violating
public policy. (Rec. Doc. No. 47 at 4). Distilled to its essence,
Guillory's argument is that the MSA violated public policy by
allowing Newpark to evade workers' compensation payments.
Section 7 of the MSA provides that Newpark and USA "agree,
vis-a-vis one another, that [USA] shall be primarily responsible
for the payment of all compensation benefits paid to or for the
benefit of [USA's] employees." (Rec. Doc. No. 12-7 at 3). Section
9 similarly provides that USA "shall be solely responsible for
the compensation, benefits, contributions and taxes, if any, of
its employees . . ." Id. at 5. Guillory argues that these
provisions invalidate the MSA because they subvert the purpose of
workers' compensation law and delay the benefit claims process.
(Rec. Doc. No. 57 at 5).
Guillory relies on Prejean v. Maintenance Enterprises, 8
So.3d 766 (La. App. 4th Cir. 2009). There, a Louisiana Appellate
Court invalidated a contract providing that the statutory
employer was only liable for workers' compensation benefits "if
the immediate employer...is unable to meet their financial
10
obligation under the Louisiana Workers' Compensation Statute..."
Prejean at 768. The Prejean court held the contract invalid on
the grounds that it would "place an onerous burden on an injured
worker to discover and prove" that an immediate employer was
"unable to pay" workers' compensation benefits. Id. at 774-75.
Here, the MSA contains no comparable language and places no
burden on employees seeking workers compensation benefits.
Sections 7 and 9 merely delegate duties as between primary and
statutory employers. As several courts— including the Prejean
Court—have recognized, employers may regulate responsibilities
among themselves. See, e.g., Prejean v. Maintenance Enterprises,
8 So.3d 766, 774 (La. App. 4th Cir. 2009) (statutory employers
are not prohibited from contracting as to rights of contribution
or indemnity against direct employers); Berthelot v. Murphy Oil,
Inc., CIV.A. 09-4460, 2010 WL 103871 at *8 (E.D. La. 2010)
(holding that provisions nearly identical to those contested here
are valid under Louisiana law).
As Chief Judge Vance noted in Berthelot, contractual
provisions indemnifying statutory employers against primary
employers would not establish immunity from claims for workers
compensation benefits asserted by injured workers. Id. Had
Guillory sought such benefits from Newpark, which he apparently
has not, sections 7 and 9 of the MSA could not have prevented
him. Here, however, Guillory brings claims sounding in tort. For
11
the reasons stated above, Newpark is immune from such claims.
III. Conclusion
Guillory has failed to raise a genuine issue of material
fact as to Newpark's status as a statutory employer and the
consequent immunity arising under La. R.S. 23:1032. Accordingly,
IT IS ORDERED that the motion be GRANTED and summary
judgment is entered in favor of Newpark.
New Orleans, Louisiana, this 22nd day of October, 2013.
____________________________
UNITED STATES DISTRICT JUDGE
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?