Jorge-Chavelas et al v. Louisiana Farm Bureau Casualty Insurance Company et al

Filing 85

RULING AND ORDER: In accordance with the stipulations reached among the parties, the Court renders judgment in favor of Alejandro Jorge-Chavelas and against Farm Bureau in the amount of $1,937,500. The Court renders judgment in favor of Alfredo Moreno-Abarca and against Farm Bureau in the amount of $562,500. Legal interest is awarded on both awards from date of judicial demand until paid. Within seven days the parties shall submit a judgment which incorporates thisruling and details the amounts owed under each Farm Bureau policy as well as any relief owed to Intervenor American Interstate Insurance Company. Signed by Judge John W. deGravelles on 03/09/2018. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ALEJANDRO JORGE-CHAVELAS
and ALFREDO MORENO-ABARCA
Plaintiffs

CIVIL ACTION

VERSUS

3:15-CV-00657-JWD-EWD

LOUISIANA FARM BUREAU CASUALTY
INSURANCE COMPANY, et al.
Defendants
RULING AND ORDER
Introduction
This is a personal injury case involving serious injuries suffered by plaintiffs Alejandro
Jorge-Chavelas (“Jorge-Chavelas”) and Alfredo Moreno-Abarca (“Moreno-Abarca”)
(collectively “Plaintiffs”). Plaintiffs sued Harang Sugars, LLC (“Harang Sugars”); Lee Harang
(“Harang”), the majority owner of Harang Sugars; Calvin Smith (“Smith”), an employee of
Harang Sugars; and Harang Sugars’ liability insurers Louisiana Farm Bureau Casualty Insurance
Company and Louisiana Farm Bureau Mutual Insurance Company (collectively “Farm Bureau”).
This Court has jurisdiction because Plaintiffs are Mexican nationals, all defendants are citizens
of Louisiana, and the amount in controversy exceeds $75,000, exclusive of interest and costs.1
The underlying facts giving rise to Plaintiffs’ injuries are not in dispute. On August 14,
2015, during a sugarcane planting operation, Harang Sugars’ employee Smith negligently drove
a tractor into the rear of a cane cart on which Plaintiffs were riding. Plaintiffs, payroll employees
of Lowry Farms, Inc. (“Lowry Farms”), were injured.2

1

28 U.S.C. §1332; Plaintiffs’ Proposed Findings of Fact and Conclusions of Law (“PPFFCOL”), ¶ 98, Doc. 80 at 17;
Defendants’ Proposed Findings of Fact and Conclusions of Law (“DPFFCOL”), ¶ 66, Doc. 79 at 12.
2
Stipulation of Parties (“Stipulation”), Doc. 78 at 3–5.

The primary issue before the Court is Plaintiffs’ status. If Plaintiffs are employees or
independent contractors involved in manual labor for Harang Sugars, as Farm Bureau contends,
Plaintiffs’ exclusive remedy against Harang Sugars is workers’ compensation, and they have no
tort remedy against any of the Defendants. Furthermore, there would be no coverage under the
two Farm Bureau policies. If, on the other hand, Plaintiffs are employees of Lowry Farms, and
not employees of Harang Sugars or independent contractors doing manual labor for Harang
Sugars, as Plaintiffs and Harang Sugars maintain, then Plaintiffs have a viable tort remedy
against Defendants, and Farm Bureaus’ policies would provide coverage for the accident.
For the reasons which follow, the Court finds that Plaintiffs were, at the time of the
accident, employees of Lowry Farms only and not employees (outright, borrowed, dual or joint)
of Harang Sugars and were not, within the meaning of Louisiana law, independent contractors
doing manual labor for Harang Sugars. The Court finds the two Farm Bureau policies provide
coverage for the accident. Given the stipulation regarding Smith’s fault and the amount of
damages suffered,3 judgment is rendered in favor of Plaintiffs in the amount stipulated among
the parties.
The Players
Plaintiffs Jorge-Chavelas and Moreno-Abarca are Mexican nationals who were at all
relevant times temporarily and legally residing in Louisiana as “H-2A workers” under the authority
of 8 U.S.C. § 1101, et seq. and the regulations promulgated pursuant thereto, 20 C.F.R. 655.100,
et seq.4

3
4

Id.
PPFFCOL, ¶¶ 1–2, Doc. 80 at 1.

2

Defendant Harang Sugars is a Louisiana limited liability company whose members are
natural persons and citizens of Louisiana. Defendant Harang is a citizen of Louisiana and is the
majority owner of Harang Sugars.5 Defendant Smith is also a citizen of Louisiana who was an
employee of Harang Sugars and was driving the tractor that struck and injured Plaintiffs.6
Defendant Louisiana Farm Bureau Casualty Insurance Company is a Louisiana insurance
company which issued Farm Liability Policy No. GF111187 to Harang Sugars.7 Defendant
Louisiana Farm Bureau Mutual Insurance Company is a Louisiana insurance company which
issued Umbrella Policy No. UM807963 to Harang Sugars.8
Non-party Lowry Farms is an Arkansas–based company which contracted with Harang
Sugars to “provide 21 workers from July 15, 2015 to October 20, 2015 to plant sugar on [Harang
Sugars’] farm.”9 Intervenor, American Interstate Insurance Company (“American Interstate”), is
the workers' compensation insurer for Lowry Farms.10 Non-party, Louisiana Workers'
Compensation Commission (“LWCC”), issued a policy of workers' compensation insurance to
Harang Sugars, which was in full force and effect at the time of the subject accident.11
Procedural History
Plaintiffs filed this lawsuit on October 5, 2015, alleging that on August 14, 2015 they were
working as employees of Lowry Farms when Harang Sugars’ employee Smith drove a tractor into
the back of a cane cart on which Plaintiffs were sitting, seriously injuring both Plaintiffs.12

5

DPFFCOL, ¶ 11, Doc. 79 at 4.
PPFFCOL, ¶ 6, Doc. 80 at 1; DPFFCOL, ¶ 10, Doc. 79 at 4.
7
Louisiana Farm Bureau Casualty Insurance Co. Farm Liability Policy (“Liability Policy”), Ex. 27, TRIAL000804–
851; DPFFCOL, ¶ 12, Doc. 79 at 5.
8
Louisiana Farm Bureau Mutual Insurance Co. Umbrella Policy (“Umbrella Policy”), Ex. 28, TRIAL000852–875;
DPFFCOL, ¶ 13, Doc. 79 at 5.
9
Lowry Farms Agreement with Harang Sugars (“Agreement”), Ex. 23, TRIAL000625.
10
DPFFCOL, ¶ 15, Doc. 79 at 5.
11
Louisiana Workers Compensation Corporation Policy (“LWCC Policy”), Ex. 30, TRIAL000876–903.
12
Complaint Against All Defendants (“Complaint”), Doc. 1 at 1–3.
6

3

Plaintiffs named as defendants (1) Smith; (2) Smith’s employer, Harang Sugars, and; (3) Harang
Sugar’s liability insurers, Farm Bureau.13
On November 17, 2015, the Plaintiffs filed their First Amended Complaint,14 adding
alternative claims against Harang, the principal of Harang Sugars, in his personal capacity, and
Harang Sugars. There, Plaintiffs alleged that, in the event it was found that Plaintiffs were
employees of Harang Sugars, then Defendants were liable to Plaintiffs for breach of contract,
violation of the Fair Labor Standards Act, and violation of the Louisiana Wage Payment Law (La.
Rev. Stat. Ann. § 23:631, et seq.). Plaintiffs later dismissed these alternative claims.15
American Interstate, the workers' compensation insurer for Lowry Farms, filed a Petition
for Intervention on January 12, 2016 against all parties to the suit alleging subrogation rights for
amounts paid to or on behalf of Plaintiffs under its worker’s compensation policy.16
Plaintiffs filed a Motion for Partial Summary Judgment on Farm Bureaus’ Borrowed
Employee Defenses17 which was supported by Defendants Harang Sugars, Harang and Smith.18
Only Farm Bureau opposed the motion.19 Farm Bureau filed its own Motion for Summary
Judgment on Claims of Plaintiffs and Intervenor20 which was opposed by Plaintiffs21 as well as
Defendants Harang Sugars, Harang and Smith22 and Intervenor American Interstate.23 Oral

13

Complaint, Doc. 1 at 1–3; PPFFCOL, ¶ 9, Doc. 80 at 2.
First Amended Complaint (“Amended Complaint”), Doc. 10 at 5–9; PPFFCOL, ¶ 10, Doc. 80 at 2; DPFFCOL, ¶ 4,
Doc. 79 at 3.
15
Stipulation, Doc. 78 at 4–5.
16
Complaint of Intervention by American Interstate Co. (“Intervention by American Interstate Co.”), Doc. 31.
17
Plaintiff’s Motion for Partial Summary Judgment (“Plaintiff PSJ”), Doc. 25.
18
Harang Sugars Support for Partial Summary Judgment (“Harang Support for PSJ”), Doc. 39. Harang Sugars has
consistently agreed with Plaintiffs that it was not Plaintiffs’ employer and that Plaintiffs remained at all times
employees only of Lowry Farms. Farm Bureau alone asserts that Plaintiffs are barred from recovering because they
were injured by a fellow servant and/or because employment-related coverage exclusions in Farm Bureau’s policies
apply to exclude coverage for the damages Plaintiffs claim. PPFFCOL, ¶ 11, Doc. 80 at 2.
19
Opposition to Partial Summary Judgement by Farm Bureau (“Opposition to PSJ”), Doc. 37.
20
Motion for Summary Judgment by Farm Bureau (“MSJ by Farm Bureau”), Doc. 33.
21
Plaintiff’s Opposition to Summary Judgement (“Plf. Opposition to MSJ”), Doc. 48
22
Harang Sugars Opposition for Summary Judgement (“Harang Opposition to MSJ”), Doc. 53.
23
American Interstate Co. Opposition for Summary Judgment (“American Interstate Co. Opposition for SJ”), Doc.
14

4

argument was heard on both motions on February 9, 201724 and both motions were denied on
March 27, 2017.25
On April 27, 2017 the parties entered into an extensive stipulation in open court.26 They
agreed that Harang Sugars was solely at fault for Plaintiffs’ bodily injuries and that the bodily
injuries to Plaintiffs collectively equaled $2.5 million (the amount of the applicable limits of the
two Farm Bureau policies). Plaintiffs would look only to Louisiana Farm Bureau for the payment
of judgment, if any. Plaintiffs stipulated that in the event the Court determined judgment should
be entered in their favor, the judgment should award $1,937,500 to Alejandro Jorge-Chavelas and
$562,500 to Alfredo Moreno-Abarca. All other claims for damages, including the FLSA claims,
would be dismissed. They agreed the case would be tried solely on the issue of Harang Sugars’
immunity and/or the applicability of Farm Bureau’s employment-related coverage exclusions and
unless Farm Bureau prevailed on the foregoing immunity/coverage defenses, Farm Bureau would
pay the full amount of the stipulated damages plus interest and costs as allowed by law. The parties
agreed the case would be tried as a bench trial, without live testimony but instead on stipulations,
depositions, and exhibits admitted into evidence.27
The bench trial was held on July 10, 201728 following which the Court requested for
additional briefs, asking the parties to respond to each other’s Proposed Finding of Fact and
Conclusions of Law. These were filed on July 25, 201729 and the matter was submitted.

49.
24
Minutes of Motion Hearing for Partial Summary Judgment by Plfs. and Motion for Summary Judgment by Def.,
Doc. 73.
25
Ruling and Order Denying Plfs. Motion for Partial Summary Judgment and Def. Motion for Summary Judgment,
Doc. 71.
26
Stipulation, Doc. 78; See also, DPFFCOL, ¶ 8, Doc. 79 at 4; PPFFCOL, ¶¶ 13–15, Doc. 80 at 2–3.
27
Id.
28
Minute Entry for Bench Trial, Doc. 81.
29
Defendants’ Response to Plaintiffs’ Proposed Findings of Fact and Law (“Def. Response to PPFFCOL”), Doc. 82;
Plaintiffs’ Response to Defendants’ Proposed Findings of Fact and Law (“Plf. Response to DPFFCOL”), Doc. 83.

5

Factual Background – Harang Sugars and Sugarcane Planting
Harang Sugars is a family-run farming corporation in Donaldsonville, La. which owns and
leases farmlands to plant, grow, harvest and sell sugar cane. It farms nearly 5000 acres of sugar
cane, regularly harvesting approximately 4000 acres of sugar cane which is delivered to a sugar
mill each year.30 Harang is the majority owner and the person in charge of the day-to-day
operations of Harang Sugars.
Farming sugar cane is a year-round enterprise which involves multiple different phases that
are important to a successful crop.31 The planting phase is an important part of Harang Sugars’
business because once it is completed, it must live with the results of the planting for the four or
five year cycle involved in growing sugar cane.32 The sugar cane planting season lasts for one to
two months depending on the weather.33
In Louisiana, sugarcane is still routinely planted by the “hand-planting” method, which
sugarcane farmers find to be superior to that done by machine because less seed cane is used. This
results in more cane going to the sugar mill and higher profits. The hand-planting process involves
the use of a large tractor which pulls a “cane cart,” loaded with sugarcane, up and down rows of a
field. Three “cane planters” follow on foot behind the cart, pulling stalks of sugarcane from the
cart and laying them in the furrows. It is hoped that a new cane crop will sprout from the joints of
the planted stalks. Cane planting is considered unskilled manual labor.34

30

Dep. of Harang & Harang Sugars, p. 17, ln. 2–19, Ex. 34, TRIAL000017.
Id., p. 181, ln. 17–20, Ex. 34, TRIAL000181.
32
Id., p. 181, ln. 21–25, p. 182, ln. 1, Ex. 34, TRIAL000181–182.
33
Id., p. 98, ln. 11–25, p. 99, ln. 1-3, Ex. 34, TRIAL000098–99.
34
Id., p. 183, ln. 11–13, Ex. 34, TRIAL000183; Dep. of Jorge-Chevelas, p. 66, ln. 3–16, Ex. 36, TRIAL000695; Dep.
of Moreno-Abarca, p. 26, ln. 19–25, p. 27, ln. 1–24; p. 31, ln. 19–25, p. 32, ln. 1–7, Ex. 37, TRIAL000736–737, 741–
742; Dep. of Gonzales, p. 43, ln. 20–21, Ex. 38, TRIAL000794.
31

6

Hand planting is a labor intensive process, and, therefore, Harang Sugars’ need for
additional labor increases dramatically during the planting season. Twenty-one (21) additional
laborers were necessary to hand plant sugar cane on Harang Sugars's farm in 2015. Sugarcane farm
owners rarely have their own employees plant the cane.35 Instead, sugarcane farmers usually
contract with a planting service to plant the sugarcane over the few weeks of the planting season.
One such sugarcane planting service is non-party Lowry Farms, an Arkansas company who
employed Plaintiffs.36
Lowry Farms
Lowry Farms is located in Hermitage, Arkansas.37 Clay Lowry is the president, operator,
and manager of Lowry. Renee Ferrell is Lowry Farm’s office manager and farmer liaison.38 Unlike
the clients it serves, Lowry Farms is not in the business of growing and selling sugarcane for
profit39 but, rather, is in the business of planting sugarcane.40
In 2015, Lowry Farms had 70 sugarcane farmer clients in Louisiana.41 Lowry charged its
clients on a per-acre (as opposed to per cane-planter or per hours worked) basis, without regard to
how long it took to plant the cane.42 Lowry Farms would confer with its clients before the cane
planting season to determine when the client wanted to begin planting and the number of tractors

35

Id., p. 183, ln. 11–13, Ex. 34, TRIAL000183; Dep. of Jorge-Chevelas, p. 66, ln. 3–16, Ex. 36, TRIAL000695; Dep.
of Moreno-Abarca, p. 26, ln. 19–25, p. 27, ln. 1–24; p. 31, ln. 19–25, p. 32, ln. 1–7, Ex. 37, TRIAL000736–737, 741–
742; Dep. of Gonzales, p. 43, ln. 20–21, Ex. 38, TRIAL000794.
36
Dep. of Lowry Farms, p. 15, ln. 14 –22, p. 51, ln. 15–21, Ex. 35, TRIAL000425, 461
37
Id., p. 51, ln. 12–14, Ex. 35, TRIAL000461.
38
Id., p.8–11, Ex. 35, TRIAL000418–21.
39
Id., p. 114, ln. 6–9, Ex. 35, TRIAL000524.
40
Id., p. 15, ln. 14 –22, p. 51, ln. 15–21, Ex. 35, TRIAL000425, 461.
41
Id., p. 17, ln. 3–10, Ex. 35, TRIAL000427.
42
Id., p. 24, ln. 16–25, p. 25, ln. 1–13, p. 49, ln. 3–19, p. 73, ln. 9–25, p. 74, ln. 1–10, Ex. 35, TRIAL000434–35, 459,
483–485.

7

and tractor drivers the client had – and therefore determine the ideal number of cane planters for
each farm.43
A crew leader and/or straw boss, Lowry Farms employees, would accompany the Lowry
Farms cane planters to the job site, and remain there to guide and direct their work. When the
work was completed at the end of each day, Lowry Farms employees would provide transportation
for its workers to a temporary housing site.44
Lowry Farms’ H-2A employees
Lowry Farms, through the United States Department of Labor’s H-2A procedure, hired
Mexican nationals to perform the cane planting work. Lowry Farms recruited, vetted, and hired
the cane planters, and then brought them to the United States.45 Lowry’s H-2A workers were
seasonal employees who remained employed with Lowry Farms only as long as the planting
season required. Lowry Farms paid the cane planters an hourly wage and provided them with
workers’ compensation insurance.46
A written contract – denominated “General Disclosure and Terms of Employment” –
governed the relationship between Lowry Farms and its H-2A seasonal employee cane planters.
The Terms of Employment document provided, in relevant part, that:
“Workers are hired by [Lowry Farms] on a contract basis for hand planting
sugar cane as well as any other general farm labor needed[;] The employees
will be employed from the time their contract begins until all cane under
contract is planted[;] Employees are provided with Workers Compensation
Insurance[;] Employees will be required to work all hours as directed by
Lowry Farms management personnel[;] Wage rate is applicable prevailing
hourly wage rate or greater for the location in which they are working[;]
Paychecks will be issued to employees weekly at the job site and no later
that [sic] the second Tuesday following the end of the work week.
Individuals no longer employed by [Lowry Farms] will have checks mailed
43

Id., p.16, ln. 3–13, p. 23, ln. 3–19, p. 74–76, Ex. 35, TRIAL000426, 433, 484–486.
Id., p. 57, ln. 10–25, p. 58, ln. 1–24, Ex. 35, TRIAL000467–468.
45
Id., p. 16, ln. 5–13, p. 21, ln. 21–25, p. 26, ln. 10–16, p. 32, ln. 5–16, Ex. 35, TRIAL000426, 432, 436, 442.
46
Id., p. 34, ln. 8–14, p. 58, ln. 25, p. 59, ln. 1–3, Ex. 35, TRIAL000444, 468–69.
44

8

to [sic] upon verification and as instructed[;] [Lowry Farms] provides
transportation from Mexico to the job location[;] Wage rate is applicable
prevailing hourly wage rate or greater for the location in which they are
working.” 47
The Terms of Employment document also provided each cane-planter employee with the
office telephone number of Lowry Farms and the cellular telephone number of Clay Lowry, owner
of Lowry Farms.48
In 2015, Lowry filed an H-2A Application for Temporary Employment Certification as an
"H-2A Labor Contractor or Job Contractor" under Case # H-300-15154-200848 requesting 308
workers for the period of July 21, 2015 to October 20, 2015.49
Also essential to Lowry Farms’ operations were its Crew Leader/Recruiters. In addition to
the seasonal H-2A employees Lowry Farms hired, Lowry Farms also maintained four resident
Crew Leader/Recruiter employees who were based in Arkansas but came to Louisiana for the
planting season.50 A written Crew Leader/Recruiter Contract governed the relationship between
Lowry Farms and its Crew Leader/Recruiters and set out the following duties they were to perform:
(1) Recruit workers for Lowry Farms, Inc. contracts; (2) Have workers report to the consulate on
the date directed for the visa appointment; (3) Oversee workers in the fields; (4) Report hours and
production for each worker; (5) Settle disputes between workers; (6) Communicate with the
Farmers; (7) Transport or arrange transportation of workers to and from the grocery store and
laundry mat; (8) Transport or see to the transportation of any injured worker to a doctor or hospital;
(9) Report any accidents or injuries to the office immediately; (10) Transport or see to the

47

Lowry Farms General Disclosure and Terms of Employment (“Lowry Discl. & Terms of Employ.”), Ex. 2,
TRIAL000295; see also Dep. of Lowry Farms., p. 53, ln. 4–25, Ex. 35, TRIAL000463.
48
Lowry Discl. & Terms of Employ., Ex. 2, TRIAL000295.
49
H–2A Application for Temporary Employment Certification (“H–2A Application”), Ex. 32, TRIAL000904–940.
50
Dep. of Lowry Farms, pp. 11–13, p. 50, ln. 24–25, p. 51, ln. 1–20, Ex. 35, TRIAL000421–22, 461.

9

transportation of workers when job is complete to the next job or the bus station for the return trip
to Mexico. 51
Lowry Farms divided all of its sugarcane farmer clients among the four Lowry Farms Crew
Leader/Recruiters, and each Crew Leader/Recruiter was responsible for servicing all of the farms
assigned to him.52 Lowry Farms paid each Crew Leader/Recruiter based on the number of acres
of sugarcane that the crew of each Crew Leader/Recruiter planted.53
The Lowry Farms Crew Leader/Recruiters traveled to Mexico to recruit and vet the
seasonal employees, assist the employees with the visa process, transport the employees to
Louisiana, determine (in the Crew Leader/Recruiter’s sole discretion) each employee’s farm
assignment, and made sure each employee got to his assigned farm.54 Each Crew Leader/Recruiter
then trained his crew members how to properly plant the cane, supervised his crews until the
completion of all Lowry Farms’ cane planting contracts, and secured the crew members’ transfer
to another farm, or – if all cane had been planted – back to Mexico.55
Often a Crew Leader/Recruiter engaged experienced workers as assistant supervisors, or
“straw bosses,” to assist leading the crew while the Crew Leader/Recruiter was working at one of
the other farms under his charge.56
H-2A Regulations and Definitions

51

Lowry Farms Crew Leader/Recruiter Contract (“Lowry Crew Leader Contract”), Ex. 4, TRIAL000298–99; See also
Dep. of Lowry Farms, p. 28, ln. 18–23, Ex. 35, TRIAL000438.
52
Dep. of Lowry Farms, p. 19, ln. 3–25, p. 20, ln. 1–18, p. 25, ln. 21–25, Ex. 35, TRIAL000429–30, 435.
53
Id., p. 48, ln. 10–24, Ex. 35, TRIAL000458.
54
Id., p. 21, ln. 19–25, p. 22, ln. 1–16, p. 49, ln. 20–25, p. 50, ln. 1–25, p. 51, ln. 1–4, Ex. 35, TRIAL000431–432,
459–461, 466.
55
Dep. of Harang & Harang Sugars, p. 66, ln. 14–25, p. 67, ln. 1–3, Ex. 34, TRIAL00066–67; Dep. of Lowry Farms,
p. 24, ln. 7–15, p. 42, ln. 4–19, p. 82, ln. 7–25, p. 83, ln. 1–10, Ex. 35, TRIAL000434, 452, 492–93; Dep. of JorgeChevlas, p. 11, ln. 9–24, p. 68, ln. 12–19, Ex. 36, TRIAL000640, 697.
56
Dep. of Lowry Farms, p. 12, ln. 6–25, p. 13, ln. 1–10, p. 45, ln. 16–25, Ex. 35, TRIAL000422–423, 455.

10

Plaintiffs were in the United States on an H-2A visa, which is administered through the
Department of Labor. Here, Lowry Farms – as Plaintiffs’ prospective (and later actual) employer
– was the applicant for the temporary job certification, not Harang Sugars.57 Lowry Farms tendered
job offers (Lowry Farms used the term “work disclosures”) which complied with 20 C.F.R.
655.122, including a statement that Lowry Farms was providing worker’s compensation insurance
coverage for these workers, a Department of Labor requirement.58
Lowry Farms’ Worker’s Compensation Insurer: Intervenor American Interstate
The workers’ compensation secured by Lowry Farms in effect on the date of Plaintiffs’
injuries was issued by American Interstate Insurance Company (“Intervenor”).59 On June 9, 2016,
Intervenor filed a Complaint of Intervention60 naming Plaintiffs, Lee Harang, Smith, and Farm
Bureau as defendants.61 Intervenor represents that it has covered Plaintiffs’ medical expenses
through its workers’ compensation policy, “and [it] may be liable to pay future workers’
compensation benefits and medical expenses. The duration and amount of said expenses is
uncertain.”62 Intervenor has adopted Plaintiffs’ position that (1) at the time of their injuries,
Plaintiffs were employees of Lowry Farms only and (2) that Plaintiffs are entitled to recover in
tort against Harang Sugars, Smith and Farm Bureau.63
Facts Leading up to Accident
Harang Farms contracted with Lowry Farms to provide 21 workers from July 15, 2015
through October 20, 2015 to plant sugar cane…”64 Lowry Farms placed its client Harang Sugars

57

Id., p. 95, ln. 19–25, p. 98, ln. 1–15, Ex. 35, TRIAL000505, 508.
Id., p. 187, ln. 6–23, Ex. 35, TRIAL000587; Lowry Discl. & Terms of Employ., Ex. 2, TRIAL000295–296.
59
Intervention by American Interstate Co., Doc. 31 at 2.
60
Id.
61
Id., at 1.
62
Id., at 2.
63
American Interstate Co. Opposition for SJ, Doc. 49 at 1.
64
Agreement, Ex. 23, TRIAL000625.
58

11

in the group of farms under the charge of Delfino Castillo (“Castillo”),65 one of Lowry Farms’
Crew Leader/Recruiters.66 In 2015, Castillo was responsible for 15-22 of Lowry Farms’ other
clients as well.67
Castillo enlisted Jose Luis Hernandez (“Hernandez”) and Serafin Torres, a/k/a “El Pajaro”
or “the Bird,” (“Torres”) to be his assistant supervisors or “straw bosses.”68 Castillo recruited
Plaintiffs to hand-plant cane at the various farms under Castillo’s charge during the 2015 season.69
Castillo and Renee Ferrell assisted Plaintiffs in securing H-2A visas and transported Plaintiffs to
Louisiana in late July 2015.
When Plaintiffs arrived in Louisiana, Plaintiffs’ first job assignment from Castillo was at
Harang Sugars. There, Castillo’s assistant supervisor Hernandez instructed Plaintiffs how to hand
plant the sugar cane and generally acted as Plaintiffs’ boss. From Plaintiffs’ arrival in late July
until August 14, Hernandez provided the direct supervision to Plaintiffs.70
On August 14, 2015, Plaintiffs were sitting on the back of a cane cart when Harang Sugars
employee Smith drove his tractor into the back of the cart on which Plaintiffs were sitting, crushing
Plaintiffs’ legs. Smith’s fault is stipulated.71
Issues
Although Plaintiffs were indisputably payroll employees of Lowry Farms, Farm Bureau
nonetheless claims their insured is immune from tort suit under Louisiana’s worker’s

65

Lowry Farms Payroll Sheet, Ex. 24, TRIAL000628.
Dep. of Lowry Farms, p. 11, ln. 22–25, p. 12, ln. 1–25, p. 13, ln. 1–10, Ex. 35, TRIAL000421–23; Lowry Crew
Leader Contract, Ex. 4, TRIAL000298–99.
67
Id., p. 45, ln. 17–25, p. 46, ln. 1–7, Ex. 35, TRIAL000455–56.
68
Id., p. 13, ln. 2–10, p. 44, ln. 9–20, Ex. 35, TRIAL000423, 454.
69
Dep. of Jorge-Chevlas, p. 15, ln. 3–25, p. 16, ln. 1–3, p. 51, ln. 12–25, p. 52, ln. 1–13, Ex. 36, TRIAL000644–45,
680–681; Dep. of Moreno-Abarca, p. 26, ln. 5–10, Ex. 37, TRIAL000736.
70
Dep. of Jorge-Chevlas, p. 11, ln. 4–24, p. 13, ln. 24–25, p. 16, ln. 14–17, p. 36, ln. 9–11, p. 54, ln. 4–16, p. 68, ln.
17–19, Ex. 36, TRIAL000640, 643, 646, 665, 683, 697.
71
Stipulation, Doc. 78 at 3–5.
66

12

compensation laws urging several alternative theories: first, that Plaintiffs were the presumed
employees of Harang Sugars under La. Rev. Stat. Ann. § 23:1044 and Plaintiffs have failed to
rebut that presumption; second, that Plaintiffs were independent contractors engaged in manual
labor within the meaning of La. Rev. Stat. Ann. § 1021(7); third, that Plaintiffs were Harang
Sugars’ borrowed servants; fourth, that Harang Sugars was a special or joint employer of Plaintiffs
under La. Rev. Stat. Ann. § 23:1031(c) and/or by virtue of regulations promulgated by the U.S.
Department of Labor and codified in relevant provisions of the Fair Labor Standards Act,
(“FLSA”).72 A related issue, but one not advanced by Farm Bureau, is whether Plaintiffs were the
statutory employees of Harang Sugars under La. Rev. Stat. Ann. § 23:1061. Finally, related to all
of the above issues are the coverage defenses asserted by Farm Bureau.
Only Farm Bureau maintains that, under one of these theories, Plaintiffs were employees
of Harang Sugars and therefore Harang Sugars is immune from this tort claim and Farm Bureau
does not provide coverage for this loss. Harang Sugars, Intervenor and Plaintiffs, on the other hand,
have maintained throughout this litigation that Harang Sugars was not the special73 or borrowing
employer of Plaintiffs and that Harang Sugars had no control over the cane planters, including
Plaintiffs; had no right to select, hire or fire them; and had no obligation to pay them. Further, they
contend the contract with Lowry Farms provided nothing to the contrary. Instead, they maintain
that Lowry Farms was at all times the sole employer of Plaintiffs, that only Lowry Farms had the
right to control, select, hire or fire and the obligation to pay and provide workers compensation

72

Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq.
The term “special employer” is codified in La. Rev. Stat. Ann. § 22:1031(C). Both sides agree that the test to
determine special employer status is essentially the same, if not identical, to the test for “borrowing employer” status.
PPFFCOL, ¶ 121, Doc. 80 at 22; DPFFCOL, ¶ 97, Doc. 79 at 24. Nonetheless, to avoid confusion and because Farm
Bureau has used FLSA regulations to bolster its special employer arguments, the Court has treated these issues
separately.

73

13

coverage for Plaintiffs. They insist there was no contract with Harang Sugar, express or implied,
to the contrary.
Applicable Law
Where jurisdiction is founded on diversity, federal courts must apply the substantive law
of the forum state.74 Stated more specifically, where, as here, there are no Louisiana Supreme
Court cases on point, the Court must make an Erie guess by predicting how the Louisiana Supreme
Court would rule. In making an Erie guess, the Court relies on the following: (1) decisions of the
[Louisiana] Supreme Court in analogous cases, (2) the rationales and analyses underlying
[Louisiana] Supreme Court decisions on related issues, (3) dicta by the [Louisiana] Supreme Court,
(4) lower state court decisions, (5) the general rule on the question, (6) the rulings of courts of
other states to which [Louisiana] courts look when formulating substantive law and (7) other
available sources, such as treatises and legal commentaries.75
In the context of Louisiana law, the Court must follow the civilian method in carrying out
this task.76 This approach is followed because in Louisiana, jurisprudence is considered a
secondary source of law, and the federal court is not bound by Louisiana appellate court opinions,
particularly if there is “persuasive data that the highest court of the state would decide otherwise.”77
Accordingly, the Western District has observed the civilian methodology requires examination of

74

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); James v. State Farm Mut. Auto.
Ins. Co., 743 F.3d 65, 69 (5th Cir. 2014) (citing Westlake Petrochems., L.L.C. v. United Polychem., Inc., 688 F.3d
232, 238 n.5 (5th Cir. 2012)); Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.
2003); Ashland Chem. Inc. v. Barco Inc., 123 F.3d 261, 265 (5th Cir. 1997).
75
DPFFCOL, ¶ 76, Doc. 79 at 16–17; Gulf & Mississippi River Transp. Co. v. BP Oil Pipeline Co., 730 F.3d 484,
488–89 (5th Cir. 2013) (applying Louisiana substantive law); see also Pure Air Daigle, L.L.C., v. Stagg, No. 6:16-cv013222017, WL 4020981, at *3 (W.D. La., Sept. 15, 2017) (applying Louisiana substantive law and same seven
factors from Gulf & Mississippi River Transp. Co.).
76
See Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 197 (5th Cir. 2003); Prytania Park Hotel, Ltd.
v. Gen. Star Indem. Co., 179 F.3d 169 (5th Cir. 1999); Stewart v. Ruston Louisiana Hosp. Co., No. 14-83, 2016 WL
1715192 at *3 (W.D. La. Apr. 27, 2016).
77
Am. Int’l Specialty Lines Ins. Co., 352 F.3d at 260–61.

14

primary sources, if available on the given issue, prior to relying on lower court jurisprudence in
order to make an “Erie guess.”78
Were Plaintiffs the Presumed Employees of Harang Sugars?
Under Louisiana law, workers’ compensation is generally the exclusive remedy for an
employee injured at the workplace.79 A prerequisite to workers’ compensation coverage “is the
existence of an employer-employee relationship,” which is ordinarily evidenced by the following
four factors: “1) selection and engagement, 2) payment of wages, 3) power of dismissal, and 4)
power of control. No single factor is determinative, but the totality of the circumstances must be
considered.”80
La. Rev. Stat. Ann. § 23:1044 provides that “[a] person rendering service for another in
any trades, businesses or occupations covered by [the Louisiana Workers Compensation Act
“LWCA”] is presumed to be an employee under the [the LWCA].” This presumption is available
to an employer and its insurer and, argues Farm Bureau, allows it in this case to claim the benefit
of La. Rev. Stat. Ann. § 23:1032’s immunity to Plaintiffs’ tort claim.81
But the presumption of employee status under 1044 may be rebutted by a showing of any
one of the following: (1) that the services rendered were not subject to any trade, business, or
occupation covered by the LWCA; (2) that the individual was performing services as an
independent contractor not engaged in manual labor; or (3) upon proof that there was no contract
of employment, either express or implied, between the alleged employer and employee.82

78

Stewart, 2016 WL 1715192 at *3.
La. Rev. Stat. Ann. §§ 23:1032(A)(1)(a) and (B); see also Grant v. Tulane Univ., No. 00-3465, 2001 WL 245785
at *1 (E.D. La. Mar. 9, 2001) (citing Dustin v. DHCI Home Health Servs., Inc., 95-1989, p. 3 (La. App. 1 Cir. 5/10/96);
673 So. 2d 356, 358).
80
Campora v. Falstaff, L.L.C., 01-2014, p. 4 (La. App. 4 Cir. 6/12/02); 823 So. 3d 389, 392 (citing Jordan v. Cent.
Mgmt. Co., 99-0748, p. 7 (La. App. 3 Cir. 10/13/99); 745 So. 2d 116, 120).
81
DPFFCOL, ¶ 71, Doc. 79 at 15; Brown v. Zurich Am. Ins. Co., 2007-353 (La. App. 3 Cir. 10/3/07); 966 So. 2d 1160,
1163, writ denied, 2007-2139 (La. 1/7/08); 973 So. 2d 728.
82
See, e.g., Sanders v. Dillard Univ., No. 14-845, 2014 WL 7342440, at *9 (E.D. La. Dec. 23, 2014) (citing Campora,
79

15

Plaintiffs argue it is the third factor that is fatal to the presumption that Plaintiffs were
employees of Harang Sugars because there was no express or implied contract between Plaintiffs
and Harang Sugars. Rather, the only two operative contracts in this case were between Plaintiffs
and Lowry Farms, and between Lowry Farms and Harang Sugars. Furthermore, the contract
between Harang Sugars and Lowry Farms indicates that both parties to the contract envisioned
that Plaintiffs would at all times remain the employees of Lowry Farms. Because there was no
contract between Plaintiffs and Harang Sugars, Plaintiffs contend they have successfully rebutted
any presumption they were employees of Harang Sugars under La. Rev. Stat. Ann. § 23:1044.83
Farm Bureau counters that that Plaintiffs failed to rebut this presumption because, while
there may have been no express contract between Harang Sugars and Plaintiffs, there was an
implied contract between them,84 thus rebutting the presumption.85 In support of this contention,
Farm Bureau urges that, because Plaintiffs were planting Harang Sugars’ sugar cane on Harang
Sugars’ property in furtherance of Harang Sugars’ business of sugar cane farming, they are
presumed to be employees of Harang under La. Rev. Stat. Ann. § 23:1044.86
But this does not prove an express or implied contract between Plaintiffs and Harang
Sugars, and, indeed, the evidence shows there was no such contract. Plaintiffs were at all times
payroll employees of Lowry Farms and, as discussed elsewhere in this ruling, never left the
direction, supervision and control of Lowry Farms. The only operative contracts in this case were
between Plaintiffs and Lowry Farms and Lowry Farms and Harang Sugars. Plaintiffs are correct

01-2014 at p. 4; 823 So. 3d at 392; Hillman v. Comm-Care, Inc., 01-1140, p. 6 (La. 1/15/02); 805 So. 2d 1157, 1161);
Wilfred v. A. Serv. Cab. Co., 14-1211, p. 3–4 (La. App. 4 Cir. 5/27/15); 171 So. 3d 1007, 1010 (citing Whitlow v. The
Shreveport Times, 02-1215, p. 2 (La. App. 3 Cir. 4/23/03); 843 So. 2d 665, 667 (internal citation omitted)).
83
PPFFCOL, ¶ 105, Doc. 80 at 18–19.
84
See for example, Williams v. Rowe-Treaudo, 11-46, pp. 7–9 (La. App. 5 Cir. 9/27/11); 75 So. 3d 502, 507–508
(where employment contract is implied).
85
DPFFCOL, ¶¶ 68–73, Doc. 79 at 13–14.
86
Id., ¶ 72, Doc. 79 at 14.

16

that the contract between Harang Sugars and Lowry Farms envisioned that Plaintiffs would remain
the employees of Lowry,87 stating in relevant part: “I [Harang Sugars] agree to pay Lowry Farms,
Inc. weekly for the work performed by Lowry Farms, Inc. workers.”88 Any work by Plaintiffs
which benefitted Harang Sugars was done by operation of Plaintiffs’ contract with Lowry Farms
and through Lowry Farm’s contract with Harang. The fact Plaintiffs’ work benefitted Harang
Sugars’ business enterprise does not establish a contract, express or implied.
The contract between Lowry Farms and Plaintiffs provides further support for Plaintiffs’
position. There it states clearly that Plaintiffs were hired by Lowry Farms which paid them,
directed them, provided transportation to America and the job site and provided them housing and
worker’s compensation coverage.89 This contract envisioned that these workers would remain the
employees of Lowry Farms.90 Accordingly, based on the evidence presented at trial, Plaintiffs have
successfully rebutted the presumption that they were employees of Harang Sugars under La. Rev.
Stat. Ann. § 23:1044.
Were Plaintiffs Independent Contractors Doing Manual Labor within the Meaning of La. Rev.
Stat. Ann. § 23:1021(7)?
Farm Bureau contends alternatively that Plaintiffs were independent contractors doing
manual labor for Harang Sugars thus immunizing its insured from tort liability.91
La. Rev. Stat. Ann. § 23:1021(7) provides:
(7)“Independent contractor” means any person who renders service, other
than manual labor, for a specified recompense for a specified result either
as a unit or as a whole, under the control of his principal as to results of his
87

Dep. of Lowry Farms, p. 70, ln. 23–25, p. 71, ln. 1–11, Ex. 35, TRIAL000480–81; Agreement, Ex. 23,
TRIAL000625.
88
Id. (emphasis added).
89
Lowry Discl. & Terms of Employ., Ex. 2, TRIAL000295–296.
90
“I [Harang Sugars] agree to pay Lowry Farms, Inc. weekly for the work performed by Lowry Farms, Inc. workers.”
Agreement, Ex. 23, TRIAL000625.
91
DPFFCOL, ¶¶ 74–88, Doc.79 at 14–19.

17

work only, and not as to the means by which such result is accomplished,
and are expressly excluded from the provisions of this Chapter unless a
substantial part of the work time of an independent contractor is spent in
manual labor by him in carrying out the terms of the contract, in which case
the independent contractor is expressly covered by the provisions of this
Chapter.
Plaintiffs point the Court to language from the Louisiana Supreme Court to support their
contention that an independent contractor falls under the “manual labor exception” of 1021(7)
“only when a substantial part of his work time is spent in manual labor in carrying out the terms
of his contract with the principal and the work performed by him is a part of the principal’s trade,
business or occupation.”92 Plaintiffs don’t dispute that they were performing manual labor at the
time they were injured but argue because they had no contract with Harang Sugars, this provision
is inapplicable.
Specifically, Plaintiffs argue that the manual labor exception requires that there be (a) an
independent contractor; (b) carrying out the terms of the laborer’s contract with the principal.
Thus, La. Rev. Stat. Ann. § 1021(7) only applies when the manual laborer is in direct contractual
privity with the principal.93 When the relationship in question is – as here – that of the principal
to a payroll employee of an intermediate contractor, a more restrictive LWCA provision – La. Rev.
Stat. Ann. § 23:1061 – tests whether the payroll employees (in this case, Plaintiffs) of the
intermediary contractor (in this case, Lowry Farms) are statutory employees of the principal (in
this case, Harang Sugars).94 Here, Farm Bureau does not contend that Harang Sugars was

92

PPFFCOL, ¶ 107, Doc. 80 at 19, citing Lushute v. Diesi, 354 So. 2d 179, 182 (La. 1977) (emphasis added); see also
Steinfelds v. Villarubia, 10-0975, p. 9 (La. App. 4 Cir. 12/15/10); 53 So. 3d 1275, 1281 (citing Lushute, 354 So. 2d at
182, Miller v. Higginbottom, 33,594, p. 6 (La. App. 2 Cir. 6/21/00); 768 So. 2d 127, 132; Guidry v. Gueydan Co-Op.
Dryer, Inc., 97-874, p. 4 (La. App. 3 Cir. 12/10/97); 706 So. 2d 146, 150).
93
Lushute, 354 So. 2d at 181–82.
94
See Kirkland v. Riverwood Int’l USA, Inc., 95-1830, pp. 2–3 (La. 9/13/96); 681 So. 2d 329, 331.

18

Plaintiffs’ statutory employer under La. Rev. Stat. Ann. § 23:1061.95 In sum, argue Plaintiffs,
because they had no contract with Harang Sugars, 23:1021(7) does not apply.96
Farm Bureau, on the other hand, points the Court to three Louisiana appellate decisions in
support of its position that no contractual privity is required between the laborer and the principal
in order for this provision to apply.97 Thus, argues Farm Bureau, the manual labor exception
applies here rendering worker’s compensation Plaintiffs’ exclusive remedy against Harang
Sugars.98
As stated earlier, this Court sitting in diversity pursuant to 28 U.S.C. Section 1332 must
apply Louisiana law.99 Neither side has pointed the Court to a Louisiana Supreme Court case which
has resolved the precise issue before the Court nor has this Court independently found such a case.
Under these circumstances, the Court must make an “Erie guess” and determine how that court
would resolve the issue if presented with the same case.100
The Court earlier considered this issue in pretrial motions.101 There is nothing in the
evidence presented by the parties or changes in the law that persuade the Court that its initial
decision was wrong. Indeed, the law remains the same, and the facts presented at trial reinforce
the Court’s original decision. The Louisiana Supreme Court has stated that an independent
contractor falls under the “manual labor exception” of 1021(7) “only when a substantial part of his

95

Minutes of Motion Hearing for Partial Summary Judgment by Plfs. and Motion for Summary Judgment by Def.,
Doc. 73 at 9.
96
PPFFCOL, ¶ 107, Doc. 80 at 20.
97
See Lumar v. Zappe Endeavors, L.L.C., 06-317 (La. App. 5 Cir. 10/31/06); 946 So. 2d 188; Courtney v. Fletcher
Trucking, 2012-0434 (La. App. 1 Cir. 12/21/12); 111 So. 3d 411; Moss v. Tommasi Const., Inc., 2009-1419 (La. App.
3 Cir. 5/5/10); 37 So. 3d 492, 497–99, writ denied, 2010-1243 (La. 9/17/10); 45 So. 3d 1054; see also McCarroll v.
Prime Cut Lawn Care & Tractor Work, L.L.C., No. 2010-1638 (La. App. 1 Cir. 3/25/11); 2013 WL 1189241.
98
DPFFCOL, ¶¶ 77–88, Doc. 79 at 15–19.
99
See supra notes 75 and 76.
100
See supra notes 75 and 76.
101
Ruling and Order Denying Plfs. Motion for Partial Summary Judgment and Def. Motion for Summary Judgment,
Doc. 71 at 48.

19

work time is spent in manual labor in carrying out the terms of his contract with the principal and
the work performed by him is a part of the principal’s trade, business or occupation.”102 Because
Plaintiffs had no contract with Harang, 23:1021(7) simply does not apply.
Farm Bureau points the Court to Lumar v. Zappe Endeavors, L.L.C103 where the Louisiana
Fifth Circuit stated: “the Legislature has seen fit to extend workers’ compensation coverage to
certain independent contractors who perform manual labor and that extension of coverage
encompasses tort immunity for the employer who contracts with the laborer.” Nevertheless, the
Fifth Circuit found that the plaintiff, an employee of a cleaning services company that contracted
with the defendant to clean its facilities, was also considered an independent contractor of the
defendant’s, doing manual labor, and therefore, under 23:1021(7), was barred from recovery in
tort.104 Specifically, the court noted that the plaintiff’s employer, Aramark, “performs its duties
through its employees, and is liable for the acts of its employees. The limitations applicable to
Aramark are also applicable to its employees. Furthermore, La. Rev. Stat. Ann. § 23:1021 does
not state that it is not applicable to independent contractors who are partnerships, corporations or
other juridical persons, and does not limit itself to independent contractors who are natural persons
only.”105 The Third Circuit followed Lumar in Moss v. Tommasi Construction, Inc. to conclude
that the plaintiff there was similarly barred from recovery in tort, noting “[t]he factual relationship
vis-a-vis [the plaintiff and defendant] and Lumar and Zappe is identical.”106
Farm Bureaus further points the Court to Courtney v. Fletcher Trucking,107 in which

102

Lushute, 354 So. 2d at 182 (emphasis added); see also Steinfelds, 10-0975 at p. 9; 53 So. 3d at 1281 (citing Lushute,
354 So. 2d at 182, Miller, 33,594 at p. 6; 768 So. 2d at 131; Guidry, 97-874 at p. 4; 706 So. 2d at 150).
103
Lumar, 06-317 at pp. 5–6; 946 So. 2d at 190.
104
Id., 06-317 at pp. 5–6; 946 So. 2d at 191.
105
Id., 06-317 at p. 6; 946 So. 2d at 191.
106
See Moss, 09-1419 at p. 9; 37 So. 3d at 499.
107
Courtney v. Fletcher Trucking, 2012-0434 (La. App. 1 Cir. 12/21/12); 111 So. 3d 411.

20

plaintiff, Courtney, filed a workers’ compensation claim against both Fletcher Trucking and
Maximum Lesiure, LLC after sustaining injuries on a job site. The job site was owned by
Maximum Leisure and Fletcher was hired to develop the land. Maximum Leisure argued it was
not the employer of Courtney because Courtney was not performing manual labor at the time he
was injured (he was driving a dump truck) and it exercised no control over him. Despite these
contentions, the First Circuit affirmed the lower court’s ruling finding that Courtney was
performing manual labor under 23:1021(7)108 and Maximum Leisure was Courtney’s borrowing
employer under La. Rev. Stat. Ann. § 23:1031(C).109
Plaintiffs insist that Lumar and its progeny were incorrectly decided. They note that
following Lumar, Louisiana courts, including the court that rendered the Lumar decision, continue
to apply both statutory employer and borrowing employer analyses without consideration of
whether the injured plaintiff was engaged in manual labor.110 They insist this is because 1061, not
1021(7), governs situations such as the instant one, where the disputed relationship involves a
principal and the payroll employees of an intermediary and that 1021(7) is wholly inapplicable to
the facts of this case.111
In applying Louisiana law, the Court finds that the language of 23:1021(7) and the
Louisiana Supreme Court’s interpretation of same, while dicta to the specific issue before this
Court, nonetheless clearly support Plaintiffs’ position that 1021(7) only applies to the manual
laborer in direct contractual privity with the principal. In Lushute v. Diesi, the Louisiana Supreme
Court examined the legislative history of the term “independent contractor” as the term is used in

108

Id. at pp. 9-10; 111 So. 3d at 417–18.
Id. at pp. 10–11; 111 So. 3d at 418–19.
110
Plf. Opposition to MSJ, Doc. 48 at 7–8 (citing Daigle v. McGee Backhoe & Dozer Servs, 08-1183 (La. App. 5 Cir.
4/28/09); 16 So. 3d 4, reh’g denied, writ denied, 09-1372 (La. 10/2/09); 18 So. 3d 113).
111
Id.
109

21

La. Rev. Stat. Ann. § 23:1021(7).112 After noting the various legislative amendments to the statute,
the first of which dates back to 1914, and the significance of each amendment, the Court
“conclude[d] that an independent contractor is covered under the workmen’s compensation law
only when a substantial part of his work time is spent in manual labor in carrying out the terms of
his contract with the principal and the work performed by him is a part of the principal’s trade,
business or occupation.”113
In conclusion, the Court finds that Plaintiffs were not independent contractors of Harang
Sugars by virtue of the simple fact that there was no contractual privity between the parties. Rather,
the only contract to which Plaintiffs were a party was their contract with Lowry Farms. Moreover,
as discussed above, Lowry Farms’ contract with Harang Sugars expressly indicates that the parties
intended for Plaintiffs to remain the employees of Lowry. Thus, Plaintiffs are not independent
contractors as defined in La. Rev. Stat. Ann. § 23:1021(7), and the statute does not bar their
recovery in tort.114
The Court has considered Lumar, Moss and Courtney but find their holdings to be at odds
with the language of 1021(7) and that of the Louisiana Supreme Court interpreting the same.115
Lushute suggests that, in order for 1021(7) to apply, the manual laborer must be engaged in work
“carrying out the terms of his contract with the principal…”116 Furthermore, as discussed above,
23:1061 (and not 1021(7)) is the section of Louisiana’s worker’s compensation law which governs

112

Lushute, 354 So. 2d at 181–82.
Id. at 182 (emphasis added); see also Maldonado-Mejia v. Eversound Kitchen & Bath, L.L.C., 15-859, p. 7 (La.
App. 4 Cir. 4/20/16); 194 So. 3d 1136, 1140 (citing Lushute, 354 So. 2d at 182); Guidry, 97-874 at p. 4; 706 So. 2d at
150, on reh’g.
114
See Prejean v. Maint. Enter., Inc., 08-0364, p. 10 (La. App. 4 Cir. 3/25/09); 8 So. 3d 766, 772–73. (“While the
Legislature acts within its bounds to provide tort immunity to employers, whether they are direct employers or
principals… the courts lack authority to extend that tort immunity beyond explicit statutory language[.]”)
115
Even the Louisiana Fifth Circuit seems to have now disowned its Lumar decision. See Daigle v. McGee Backhoe
and Dozer Servs, 08-1183 (La. App. 5 Cir. 4/28/09); 16 So. 3d 4 (Winsberg, J., dissenting and disagreeing with the
court’s departure from Lumar), reh’g denied, writ denied, 09-1372 (La. 10/2/09); 18 So. 3d 113).
116
Lushute, 354 So. 2d at 182.
113

22

a principal’s compensation liability to the employee of an intermediary independent contractor. In
this case, Farm Bureau has disclaimed reliance on 1061.117 Louisiana Civil Code Articles 12 and
13 support the Court’s conclusion by guiding this Court’s interpretation of these statutes. Article
12 requires the Court to look to “the text of the law as a whole” if any ambiguity exists and “the
context in which [the words] occur.”118 Article 13 requires that statutes “on the same subject matter
must be interpreted in reference to each other.”119
Was Harang Sugars a Borrowing Employer of Plaintiffs?
Louisiana courts utilize a nine or ten factor test to determine whether a borrowed servant
relationship exists for purposes of tort immunity.120 There is often considerable overlap in the
factors, and some courts identify some factors as “subfactors” of others.121 The Court will use the
ten factor test:
(1) first and foremost, who has the right of control over the employee beyond mere
suggestion of details or cooperation; (2) who selected the employee; (3) who paid
the employee's wages; (4) who had the right to fire the employee; (5) who furnished
the tools and the place to perform the work; (6) whether the new employment was
over a considerable length of time; (7) whose work was being done at the time of
the accident; (8) whether there was an agreement between the borrowing and
lending employers; (9) whether the employee acquiesced in the new work situation;
and (10) whether the original employer terminated his relationship with or

117

Minutes of Motion Hearing for Partial Summary Judgment by Plfs. and Motion for Summary Judgment by Def.,
Doc. 73 at 9.
118
La. Civ. Code. Ann. art. 12
119
La. Civ. Code. Ann. art. 13.
120
Farm Bureau points the Court to the nine factor test in Sanchez v. Harbor Construction Co., Inc., 2007-0234, pp.
4–5 (La. App. 4 Cir. 10/3/07); 968 So. 2d 783, 786; DPFFCOL, ¶ 97 Fn. 87, Doc. 79 at 22. Plaintiffs utilize the ten
factor test of Billeaud v. Poledore, 603 So. 2d 754, 756 (La. App. 1 Cir. 1992), writ denied, 608 So. 2d 176 (La. 1992);
PPFFCOL, ¶ 123, Doc. 80 at 23. Other than the order in which the factors are listed and the addition of one factor in
the ten factor version (who selected the worker?), the tests are identical. The Court also notes that “[b]oth federal and
Louisiana law use the same criteria for determining whether an employee is a borrowed employee.” Capps v. N.L.
Baroid-NL Indus., Inc., 784 F.2d 615, 616 n.1 (5th Cir. 1986) (citing Lorton v. Diamond M Drilling Co., 540 F.2d
212, 213 n.1 (5th Cir. 1976) (per curiam) (citing Champagne v. Penrod Drilling Co., 341 F. Supp. 1282, 1285 (W.D.
La. 1971) aff'd 459 F.2d 1042 (5th Cir.1972) (per curiam), cert. denied, 409 U.S. 1113, 93 S. Ct. 927, 34 L. Ed. 2d
696 (1973))).
121
See, e.g., Shelvin v. Waste Mgmt. Inc., 580 So. 2d 1022, 1026 (La. App. 3 Cir. 1991) (“The four primary factors
considered in deciding the right of control issue are: selection and engagement; payment of wages; power of dismissal;
and power of control.”); PPFCCOL, ¶ 122, Doc. 80 at 23.

23

relinquished his control over the employee.122

First Factor: Who Had Control Over Plaintiffs?
“The essence of the employer/employee relationship is the right to control.”123 Thus, the
right of control is the “first and foremost” factor in a borrowed employee inquiry.124 There is a
legal presumption that the general employer retains control over his regular employees. A party
who alleges or contends that the employee has become the ‘borrowed servant’ of another bears the
burden of proof of establishing this.125
The right of control must be “beyond suggestion of details or cooperation.”126 To illustrate
this point, the Louisiana Supreme Court cited a Massachusetts Supreme Court case authored by
Justice Holmes, in which he explained:
In cases like the present, there is a general consensus of authority that,
although a driver may be ordered by those who have dealt with the master
to go to this place or that, or take this or that burden, to hurry or to take his
time, nevertheless in respect to the manner of his driving in the control of
his horse he remains subject to no orders but those of the man who pays
him.127
Farm Bureau argues it had the requisite right to control and points out that, on the first day
of planting, Harang explained to the Lowry Farms straw boss how Harang Sugars wanted the cane
planted, and the straw boss translated to the planters how to plant Harang Sugar's cane.128 In

122
Billeaud, 603 So. 2d at 756 (citing Carter v. Chevron Chem. Co., 593 So. 2d 942, 947 (La. App. 4 Cir. 1992), writ
denied, 596 So. 2d 211 (La. 1992), Brumbaugh v. Marathon, 507 So. 2d 872, 875 (La. App. 5 Cir. 1987), writ denied,
508 So. 2d 284 (La. 1987)); see also Kelly v. Arch Ins. Co., No. 15-772, 2016 WL 3951424 at *10 (M.D. La. June 9,
2016) (Wilder-Dooms, MJ.) (citing Omega Const, v. Thornco, Inc., 07-1806, pp. 4–5 (La. App. 1 Cir. 8/21/08); 994
So. 2d 65, 68).
123
Shelvin, 580 So. 2d at 1026.
124
Billeaud, 603 So. 2d at 756.
125
Polozola v. Garlock, Inc., 376 So. 2d 1009, 1012 (La. App. 1 Cir. 1979), writ denied, 379 So. 2d 1103 (La. 1980),
(citing Nichols Const. Corp. v. Spell, 315 So. 2d 801, 803 (La. App. 1 Cir. 1975)).
126
Billeaud, 603 So. 2d at 756.
127
Benoit v. Hunt Tool Co., 219 La. 380, 396, 53 So. 2d 137, 142 (La. 1951) (quoting Driscoll v. Towle, 181 Mass.
416, 63 N.E. 922 (Mass. 1902) (Holmes, J.)).
128
DPFFCOL, ¶ 27, Doc. 79 at 7 (citing Dep. of Harang & Harang Sugars, p. 90, ln. 4–15, p. 158, ln. 23–25, p. 159,

24

explaining why Harang communicated through Lowry Farms’ straw boss and did not speak
directly with the cane planters, Farm Bureau emphasizes that neither Harang, nor any other
supervisor or manager of Harang Sugars could communicate in Spanish with the H-2A laborers
who exclusively spoke Spanish.129
Farm Bureau maintains that Harang Sugars decided when to begin planting its sugar cane
based on Harang's personal judgment and the weather130 and determined how many acres of sugar
cane it would plant in a given year.131 Harang Sugars was the client paying for a specific service,
and, just as in any service contract, Harang Sugars could request corrections to work done
incorrectly. It set the place where they began work each day132 and the order in which it wanted
to plant its acres.133 Farm Bureau insists that Harang Sugars was solely responsible for making
sure the planting was done properly and efficiently134
It points the Court to testimony that Harang Sugars could dictate how many workers it
needed based on the acres it had to plant and the equipment it had available135 and could dictate
the number of pieces of seed cane that would be planted in a furrow.136 Further, it could reject

ln. 4–9, p. 211, ln. 13–25, p. 212, ln. 1–21, Ex. 34, TRIAL000090, 158–59, 211–12).
129
Id., ¶ 28, Doc. 79 at 7 (citing Dep. of Harang & Harang Sugars, p. 204, ln. 15–25, p. 205, ln. 1–11, Ex. 34,
TRIAL000204–205).
130
Id., ¶ 32, Doc. 79 at 8 (citing Dep. of Harang & Harang Sugars, p. 221, ln. 3–5, Ex. 34, TRIAL000221; Dep. of
Lowry Farms, p. 23, ln. 3–19, p. 159, ln. 4–16, Ex. 35, TRIAL000433, 569).
131
Id., ¶ 32, Doc. 79 at 8 (citing Dep. of Harang & Harang Sugars, p. 221, ln. 6–10, Ex. 34, TRIAL000221; Dep. of
Lowry Farms, p. 128, ln. 20–22, Ex. 35, TRIAL000538).
132
Id., ¶ 40, Doc. 79 at 8 (citing Dep. of Lowry Farms, p. 38, ln. 1–2, Ex. 35, TRIAL000448).
133
Id., ¶ 34, Doc. 79 at 8 (citing Dep. of Harang & Harang Sugars, p. 223, ln. 11–14, Ex. 34, TRIAL000223; Dep. of
Lowry Farms, p. 128, ln. 4–12, Ex. 35, TRIAL000538).
134
Id., ¶ 31, Doc. 79 at 8 (citing Dep. of Harang & Harang Sugars, p. 55, ln. 1–10, Ex. 34, TRIAL000055).
135
Id., ¶ 35, Doc. 79 at 8 (citing Dep. of Harang & Harang Sugars, p. 63, ln. 14–25, p. 64, ln. 1–9, Ex. 34,
TRIAL000063–64; Dep. of Lowry Farms, p. 71, ln. 12–21, Ex. 35, TRIAL000481).
136
Id., ¶ 38, Doc. 79 at 8 (citing Dep. of Harang & Harang Sugars, p. 90, ln. 4–15, p. 208, ln. 23–25, Ex. 34,
TRIAL000090, 208).

25

unsuitable employees and require them to be removed and replaced by Lowry.137 Harang Sugars
determined if work was to be canceled due to bad weather on any given day.138
Plaintiffs argue, on the other hand, that Lowry Farms’ personnel trained and provided
Plaintiffs with their initial orientation and instruction and supervised Plaintiffs while on the job.
Control of the specifics of Plaintiffs’ duties was exercised by Lowry Farms personnel and Harang
Sugars never gave Plaintiffs instructions.139
Specifically, Plaintiffs maintain it was Lowry Farms employee Hernandez who provided
Plaintiffs with their orientation and initial instruction on how to do their job.140 Hernandez was the
primary person with whom Plaintiffs and the other cane planters communicated.141 Plaintiffs did
not take direction from anyone other than Castillo, Hernandez or Torres.142 No one from Harang
Sugars ever told Plaintiffs how to plant cane.143
Ferrell, Lowry Farms’ office manager and farmer-crew boss liaison, testified as to the chain
of command to the workers at the job site. If the farmer had a problem, the farmer would call
Ferrell, who would then contact the crew boss to resolve the issue. If the crew boss had a problem,
the crew boss would call Ferrell, who would then contact the farmer to resolve the issue.144 The
Lowry Farms Crew Leaders would report Plaintiffs’ hours to Ferrell.145

137

Id., ¶ 29, Doc. 79 at 7 (citing Dep. of Harang & Harang Sugars, pp. 209–216, Ex. 34, TRIAL000209–216).
Id., ¶ 41, Doc. 79 at 8 (citing Dep. of Harang & Harang Sugars, p. 226, ln. 4–7, Ex. 34, TRIAL000226; Dep. of
Lowry Farms, p. 127, ln. 8–16, Ex. 35, TRIAL000537).
139
PPFFCOL, ¶ 126, Doc. 80 at 23–24.
140
Id., ¶ 61, Doc. 80 at 11 (citing Dep. of Jorge-Chevlas, p. 11, ln. 4–13, p. 17, ln. 15–18, p. 54, ln. 4–16, p. 55, ln. 9–
19, Ex. 36, TRIAL000640, 646, 683–684; Dep. of Moreno-Abarca, p. 26, ln. 2–12, p. 35, ln. 14–24, Ex. 37,
TRIAL000736, 745).
141
Id. (citing Dep. of Jorge-Chevlas, p. 11, ln. 4–13, p. 17, ln. 15–18, p. 54, ln. 4–16, p. 55, ln. 9–19, Ex. 36,
TRIAL000640, 646, 683–684; Dep. of Moreno-Abarca, p. 26, ln. 2–12, p. 35, ln. 14–24, Ex. 37, TRIAL000736, 745).
142
Id. (citing Dep. of Jorge-Chevlas, p. 11, ln. 4–13, p. 17, ln. 15–18, p. 54, ln. 4–16, p. 55, ln. 9–19, Ex. 36,
TRIAL000640, 646, 683–684; Dep. of Moreno-Abarca, p. 26, ln. 2–12, p. 35, ln. 14–24, Ex. 37, TRIAL000736, 745).
143
Id., (citing Dep. of Jorge-Chevlas, p. 19, ln. 9–11, Ex. 36, TRIAL000648).
144
Id., ¶ 55, Doc. 80 at 10 (citing Dep. of Lowry Farms, p. 78, ln. 10–25, p. 79, ln. 1–11, p. 81, ln. 24–25, p. 82, ln.
1–11, p. 92, ln. 12–24, Ex. 35, TRIAL000488–89, 491–92, 502).
145
Id., ¶ 67, Doc. 80 at 12 (citing Dep. of Lowry Farms, p. 35, ln. 21–25, p. 36, ln. 1–2, Ex. 35, TRIAL000445–446).
138

26

It was Lowry Farms’ “protocol or expectation” that if Plaintiffs had any work-related issue,
Plaintiffs would report the issue to their Crew Leader or straw boss. For problems relating
specifically to Crew Leader/Recruiters, Lowry Farms supplied Plaintiffs with an office number for
Lowry Farms and cell number for owner Clay Lowry.146
Ferrell’s explanation is consistent with the terms of the Crew Leader/Recruiter Contract,
which lists the Crew Leader/Recruiter’s duties, including: “Oversee workers in the fields.”147
Harang provided a specific example. During the 2015 planting, Harang was concerned about the
pace of planting. He called Ferrell because “that’s the – that’s the route of me communicating to
get things done.”148
Plaintiffs’ contracts with Lowry Farms declare that Plaintiffs are Lowry Farms’ employees,
and Plaintiffs “will be required to work all hours as directed LF personnel.”149 Nothing in their
contracts suggests that the client farmer would have any control over Plaintiffs.150
Plaintiffs themselves understood that they were employees of Lowry Farms. They
understood that they worked for “Clay Lowry” and that Hernandez and Torres – both Lowry Farms
employees – were Plaintiffs’ bosses.151 Jorge Gonzales, a Harang Sugars employee-tractor
driver152 pulling the cart from which Plaintiffs were working, directly observed who was
exercising control over Plaintiffs’ work. Gonzales observed Hernandez talking to the planters
about how they should do their job, every morning. Gonzales understood from what he saw that

146

Id., ¶ 58, Doc. 80 at 11 (citing Dep. of Lowry Farms, p. 60, ln. 15–20, p. 61, ln. 4–16, p. 89, ln. 12–23, Ex. 35,
TRIAL000470–71, 499).
147
Id., ¶ 56, Doc. 80 at 10, citing Lowry Crew Leader Contract, Ex. 4, TRIAL000298–99.
148
Id., ¶ 57, Doc. 80 at 10.
149
Lowry Discl. & Terms of Employ., Ex. 2, TRIAL000295–296.
150
PPFFCOL, ¶ 59, Doc. 80 at 11.
151
Id., ¶ 60, Doc. 80 at 11 (citing Dep. of Jorge-Chevlas, p. 36, ln. 9–11, p. 55, ln. 6–16, Ex. 36, TRIAL000665, 684;
Dep. of Moreno-Abarca, p. 26, ln. 14–18, Ex. 37, TRIAL000736).
152
Dep. of Gonzalez, p. 8, ln. 1–21, p. 9, ln. 1–5, Ex. 38, TRIAL000759–760.

27

Hernandez was the supervisor for the cane planters. Gonzales personally observed Hernandez
instruct the cane planters and train them how to do their job, every morning.153
As to Farm Bureau’s argument that orders came from Lowry Farms crew bosses only
because Plaintiffs did not speak English and Lee Harang did not speak Spanish, Plaintiffs respond
in their supplemental memorandum154 that Harang Sugars had 5 to 7 employees who spoke
Spanish and could, and sometimes did, translate for Harang if and when he wished to communicate
directly with a Lowry Farms employee.155 This included Jorge Gonzales, the tractor driver working
with Plaintiffs at the time of the accident.156
The Court has carefully reviewed the extensive evidence and argument on this issue of
control and concludes that the legal presumption that Lowry Farms retained control has not been
rebutted, and, indeed, the great weight of the evidence supports the conclusion that the right of
control and its actual exercise remained with Lowry Farms. This “first and foremost factor”
weighs heavily against a borrowing relationship. Lowry Farms had sole discretion as to where
Plaintiffs would work; it could unilaterally transfer Plaintiffs from Harang Sugars’ farm to that of
another client without consulting Harang Sugars. As to Farm Bureau’s argument that Harang only
dealt with Lowry Farms supervisors because of language issues, the Court has reviewed the
conflicting evidence on this point and rejects Farm Bureau’s position. Lowry Farms, its Crew
Leaders and Straw Bosses exercised actual and real control over Plaintiffs and their co-workers
and were not merely acting as interpreters to communicate Harang Sugars’ directives.
As far as Harang Sugars’ decisions regarding what time to begin work; which fields to

153

PPFFCOL, ¶ 65, Doc. 80 at 12 (citing Dep. of Gonzalez, p. 22–28, Ex. 38, TRIAL000773–779).
Plf. Response to DPFFCOL, Doc. 83 at 6.
155
Dep. of Harang & Harang Sugars, p. 204, ln. 5–11, Ex. 34, TRIAL000204.
156
Dep. of Gonzales, p. 5, ln. 3–4, Ex. 38, TRIAL000756 (confirming all answers given through certified Spanish
interpreter).
154

28

work on a particular day; and whether to cancel work for inclement weather, this is precisely the
type of “mere suggestion of details or cooperation” that does not support a finding of borrowed
employee status. Harang never spoke to or had any interaction with Plaintiffs.157
Harang himself acknowledged that Harang Sugars did not have the power to control Lowry
Farms’ planters.158 Harang Sugars could make requests of Lowry Farms’ planters, but Harang
Sugars could not force the planters to do anything.159 One who has hired a contractor for a
particular service may request of his contractor corrections to work the contractor’s employee did
incorrectly. In doing so, the client does not assume control of his contractor’s worker so that the
worker becomes the client’s borrowed employee; rather, “[the worker] remains subject to no orders
but those of the man who pays him.”160 While Harang Sugars could require Lowry Farms to replant
cane if Harang Sugars was unsatisfied with the work, Plaintiffs remained subject to no orders but
those of the one who paid them, Lowry Farms.
It is true that the nature of the cane planting operation requires coordination between the
farmer and the planting service. For instance, the farmer decides when he wants to begin the
planting; what he wants the final product to be (e.g., three overlapping stalks of cane in the furrow);
how many tractors/drivers he has available, thus suggesting the most efficient number of cane
planters (three per tractor/driver); and since tractors/drivers are useless without a planting crew
behind them – and planting crews are useless without a tractor/driver in front of them – daily start
times, lunch breaks, and quitting times.161 But Harang Sugars was a client paying for a specific

157

Dep. of Jorge-Chevlas, p. 19, ln. 9–15, Ex. 36, TRIAL000648; Dep. of Gonzalez, p. 19, ln. 4–9, Ex. 38,
TRIAL000770; Dep. of Moreno-Abarca, p. 34, ln. 11–13, Ex. 37, TRIAL 000744.
158
Dep. of Harang & Harang Sugars, p. 95–97, p. 215–218, Ex. 34, TRIAL00095–97, 215–218.
159
Id.
160
Benoit, 219 La. at 396; 53 So. 2d at 142 (quoting Driscoll, 181 Mass. 416, 63 N.E. 922 (Holmes, J.)).
161
Dep. of Harang & Harang Sugars, p. 95, ln. 1–8, Ex. 34, TRIAL000095; Dep. of Lowry Farms, p. 82–85, Ex. 35,
TRIAL000492–495.

29

service, and just as in any service contract, Harang Sugars could request corrections to work done
incorrectly. While Harang Sugars could require Lowry Farms to replant cane if Harang Sugars
was unsatisfied with the work, Plaintiffs remained subject to no orders other than those of Lowry
Farms.
As mentioned elsewhere in this analysis, it is uncontested that Harang Sugars lacked the
authority to terminate Plaintiffs’ employment. It could not require them to perform other duties
that were part of Harang Sugars’ operations (such as harvesting mature sugarcane), though it could
offer to pay them for such services, if they chose to accept the additional assignment. Its control
of the plaintiffs was limited to mere suggestion and details of cooperation, which is an insufficient
indicia of control to establish a borrowed employee relationship. No part of this agreement between
Harang Sugars and Lowry Farms gave Harang Sugars any control of the Lowry Farms cane
planters162 and, indeed, Harang Sugars did not want any control of the Lowry Farms employees.163
As such, and without regard to the presumption, the Court concludes that Harang Sugars did not
exercise control over Plaintiffs and this factor weighs against borrowed servant status.
Second Factor: Who Selected Plaintiffs?
The second factor considers who – as between the general employer and the putative
borrowing employer – selected the employee.164 In this case there were two selection events: (1)
the original selection of Plaintiffs to work for the general employer, Lowry Farms and (2), the
subsequent selection of Plaintiffs to work in some connection with a particular farmer-client of
Lowry Farms. Lowry Farms maintained exclusive control over the entirety of both selection
events.

162

Dep. of Harang & Harang Sugars, p. 96, ln. 7–10, Ex. 34, TRIAL000096.
“Q: Is there any agreement that you’re aware of that gives Harang Sugars any control, whatsoever, of Lowry Farms
cane planters? A. No, sir, and don’t want it.” Id.
164
Billeaud, 603 So. 2d at 756.
163

30

Harang Sugars’ only involvement in the selection process was an initial request for a
certain number of cane planters.165 But Lowry Farms was not obligated to provide that specific
number.166 For instance, in 2015 Harang Sugars requested 21 cane planters, but Lowry Farms
initially brought only 18.167 Harang Sugars paid the same per acre price regardless of the number
of cane planters Harang Sugars requested or Lowry Farms actually brought.168
Lowry Farms’ Crew Leader/Recruiters went to Mexico and recruited and vetted their cane
planters. Lowry Farms, with no assistance from Harang Sugars, handled the entire H-2A visa
process.169 Lowry Farms recruited and vetted the cane planters in Mexico and arranged for their
visas. Lowry Farms, without input from Harang Sugars, then transported the cane planters to
Louisiana.170 Once the planters were in Louisiana, Lowry Farms’ Crew Leader/Recruiters, without
input from Harang Sugars or the other farmers, selected which planters would work and where.171
Even after Lowry Farms sent the planters to the various farms, Lowry Farms had discretion to
move planters from one farm to another for any reason and without input from the client as to
which planters would be moved or how many.172 The record evidence demonstrates that the “whoselects” factor weighs against a borrowing relationship.
Third Factor: Who Paid Plaintiffs’ Wages?
The third factor considers who, as between the general employer and the putative
borrowing employer, paid the employee.173 Analysis of this factor goes beyond an inquiry of which

165

Dep. of Lowry Farms, p. 16, ln. 3–13, p. 23, ln. 3–19, p. 74, ln. 14–21, Ex. 35, TRIAL000426, 433, 484.
Id., p. 73, ln. 9–14, p. 74, ln. 6–12, Ex. 35, TRIAL000482–483.
167
Id., p. 73, ln. 24–25, p. 74, ln. 1–22, Ex. 35, TRIAL000482–483.
168
Id., p. 74, ln. 20–22, Ex. 35, TRIAL000483.
169
Id., p. 21, ln. 21–25, p. 22, ln. 1–15, p. 49, ln. 20–25, p. 50, ln. 1–25, p. 51, ln. 15–24, p. 95, ln. 13–25, p. 96, ln.
1–25, p. 97, ln. 1–25, p. 98, ln. 1–13, Ex. 35, TRIAL000431–32, 459–461, 505–08.
170
Id., p. 95, ln. 13–25, p. 96, ln. 1–25, p. 97, ln. 1–25, p. 98, ln. 1–13, Ex. 35, TRIAL000505–508.
171
Id., p. 24, ln. 7–15, p. 26, ln. 2–25, Ex. 35, TRIAL000434, 436.
172
Id., p. 45, ln. 3–7, Ex. 35, TRIAL000455.
173
Billeaud, 603 So. 2d at 756.
166

31

employer’s bank account was used to write the employee’s paychecks. Instead, “[t]his factor
focuses on which entity provided the funds with which the injured employee was paid.”174
“When the borrowing employer pays the lending employer and then the lending employer
in turn pays his workers, a finding of borrowed servant is supported.”175 When the borrowing
employer pays the general employer an hourly rate for the employee’s labor, and the general
employer in turn pays the employee an hourly rate, the method supports a finding of a borrowing
relationship.176 But this is not what the evidence showed in the present case.
Where the general employer bills the putative employer based on the work performed, and
the putative employer does not “simply reimburse” the employee’s hourly rate, the general
employer retains the obligation to pay the employee’s wages.177 This is the situation which existed
in this case. Lowry Farms paid its cane planters an hourly rate178 and issued the pay checks on a
weekly basis, drawn on a Lowry Farms account.179 Significantly, Lowry Farms invoiced Harang
Sugars on a per-acre basis while Lowry Farms paid Plaintiffs an hourly rate. Furthermore, Lowry
Farms tendered payment of Plaintiffs’ wages before collecting payment under its contract with
Harang Sugars, 180 thereby bearing the financial risk of payment. 181 Harang Sugars had no input
as to when or how Plaintiffs were paid.
The per-acre amount Lowry Farms charged Harang Sugars did not fluctuate based on the

174

Nguyen v. Weston, 09-0571, p. 9 (La. App. 4 Cir. 9/9/09); 20 So. 3d 548, 553 (quoting Sanchez, 07-0234 at p. 10;
968 So. 2d at 789).
175
Id.
176
See Sanchez, 07-0234 at p. 10; 968 So. 2d at 789.
177
See Cobb v. Sipco Servs. & Marine, Inc., No. 95-2131, 1997 WL 582821, at *7 (E.D. La. Sept. 19, 1997) (general
employer retained obligation to pay where general employer billed alleged borrowing employer for work actually
completed by employees, not hours employees worked).
178
Dep. of Lowry Farms, p. 162, ln. 15–17, Ex. 35, TRIAL000572.
179
Id., p. 102, ln. 5–19, p. 107, ln. 6–16, Ex. 35, TRIAL000512, 517.
180
Id., p. 103, ln. 2–9, p. 108, ln. 2–9, p. 109, ln. 12–24, Ex. 35, TRIAL000513, 518–519.
181
Id., p. 109, ln. 18–24, Ex. 35, TRIAL000519.

32

number of planters, even if the number changed during the planting season.182 Lowry Farms
determined its payroll schedule and frequency for its cane planters. Harang Sugars had no control
over how or when the cane planters were paid. In fact, Harang Sugars’ own employees were on a
different payroll schedule.183 This factor weighs against a finding of borrowed employee status.
Fourth Factor: Who had the right to fire Plaintiffs?
The fourth factor considers whether the borrowing employer had the authority to terminate
the worker’s services.184 The evidence establishes that Lowry Farms had the exclusive authority
to fire Plaintiffs and that Harang Sugars had no right to terminate them. Thus, argue Plaintiffs,
this factor weighs decidedly against borrowed employee status.185
Farm Bureau counters that the question presented is not which employer had the authority
to terminate the employee’s employment outright but rather, whether the borrowing employer had
the authority to terminate the employee’s services with the borrowing employer at its jobsite.186
Harang Sugars maintains it would let Lowry Farms or its employees know if it was unhappy with
the work being performed and expected Lowry to make changes in light of any unsatisfactory
reports from Harang Sugars or if Harang Sugars requested changes to be made.187 In short, argues
Farm Bureau, Harang Sugars retained control over the work of the laborers in its cane fields and
could instruct or even have unsatisfactory laborers removed from them.188

182

Id., p. 49, ln. 9–19, Ex. 35, TRIAL000459.
Dep. of Harang & Harang Sugars, p. 123, ln. 4–24, Ex. 34, TRIAL000123.
184
Billeaud, 603 So. 2d at 756; Nguyen, 09-0571 at p. 9; 20 So. 3d at 553 (citing Sanchez, 07-0234 at pp. 9–10; 968
So. 2d at 788–89).
185
PPFFCOL, ¶ 141, Doc 80 at 26.
186
DPFFCOL, ¶ 105, Doc. 79 at 27 (citing Maddox v. Superior Steel, 2000-1539, p. 7 (La. App. 1 Cir. 9/28/01); 814
So. 2d at 574; Hall v. Equitable Shipyard, Inc., 95-1754, pp. 6–7 (La. App. 4 Cir. 2/29/96) 670 So. 2d 543, 547).
187
Id. (citing Dep. of Harang & Harang Sugars, p. 210, ln. 11–13, Ex. 34, TRIAL000210).
188
Id.
183

33

The Court has reviewed the evidence on this point and concludes Farm Bureau overstates
its case. Harang testified multiple times that he could not fire a Lowry Farm’s employee. 189
Furthermore, he conceded that, rather than having the ability to remove a Lowry Farms’ hand with
whom he was unhappy, his only recourse was to terminate the entire contract with Lowry Farms.190
The Court concludes that this factor weighs against Plaintiffs’ borrowed employee status.
Fifth Factor: Who provided the tools and place to perform work?
The fifth factor considers who provided the tools and place to perform the work.191 Both
sides concede that Harang Sugars provided the tractors, trailers, seed cane, water, and gloves used
in the sugarcane planting operation.192 Plaintiffs argue, however, that Lowry Farms supplied the
cane planters with their H-2A visas, transportation to the United States, workers compensation
insurance, and transportation from their housing to the particular field they worked each day.
Lowry Farms also provided transportation to the grocery store and to the place where the cane
planters cashed their payroll checks. Lowry Farms brought them to their particular farm
assignment, and, when done, to another farm assignment or back to Mexico.193
If one reads the requirements under this factor narrowly, this factor favors the borrowed
servant status of Plaintiffs. However, if read broadly to include items and services necessary for
Harang Sugars’ work to be performed by the H-2a workers, then it is a closer call. However,
interpreting the words “tools and place to perform work” literally, this factor favors borrowed
servant status.

189

Dep. of Harang & Harang Sugars, p. 210, ln. 21–23, p. 215, ln. 21–25, p. 216, ln. 1–11, Ex. 34, TRIAL000210,
215–16.
190
Id., p. 210, ln. 15–24, Ex. 34, TRIAL000210.
191
Billeaud, 603 So. 2d at 756.
192
Dep. of Harang & Harang Sugars, p. 223, ln. 15–20, p. 231, ln. 1–13, Ex. 34, TRIAL000223, 231.
193
PPFFCOL, ¶ 83, Doc. 80 at 14–15 (citing Dep. of Lowry Farms, p. 30, ln. 9–20, p. 40, ln. 12–20, p. 21, ln. 15–25,
p. 42, ln. 1–19, p. 57, ln. 12–25, p. 58, ln. 1–21, p. 59, ln. 18–23, p. 96, ln. 12–25, p. 97, ln. 1–8, Ex. 35, TRIAL000440,
450–53, 467–69, 506–07).

34

Sixth Factor: Was the “new employment” over a considerable length of time?
The sixth factor considers whether the “new employment” was over a considerable length
of time.194 Typically, when the new employment is over a considerable length of time, the factor
weighs in favor of a borrowing relationship.195
Harang Sugars’ planting in 2015 lasted for a period of only four or five weeks.196 It was
never intended that Plaintiffs’ work on Harang Sugars’ farm for longer than this, and, in fact, they
had worked there for just three weeks at the time they were injured.197 Had Plaintiffs not been
injured, Lowry Farms could have, at the completion of the job, sent Plaintiffs to another job site
to plant cane on another client’s farm.198
Especially in light of the fact that an entire crop cycle (from seed planting through
harvesting) can last years, it cannot reasonably be said that Plaintiffs’ employment, which could
not have lasted longer than five weeks, was a “considerable” period of time. This factor weighs
against a finding of borrowed employee status.
Seventh Factor: Whose work was being performed?
The seventh factor considers whose work was being performed.199 Here, reasonable
arguments are made on both sides. One could logically argue that Plaintiffs were performing
Lowry Farms’ work because Lowry Farms is in the business of planting sugarcane. Lowry Farms
was rendering a service for Harang Sugars through Plaintiffs pursuant to a contract between Lowry
Farms and Harang Sugars. On the other hand, one can logically conclude that Plaintiffs were

194

Billeaud, 603 So. 2d at 756.
See Robertson v. Blanchard Contractors, Inc., No. 11-1453, 2012 WL 6202988, at *13 (E.D. La. Dec. 12, 2012).
196
Dep. of Harang & Harang Sugars, p. 98, ln. 11–13, Ex. 34, TRIAL000098.
197
Dep. of Jorge-Chevlas, p. 9, ln. 22–23, p. 17, ln. 7–13, Ex. 36, TRIAL000638, 646; Dep. of Moreno-Abarca, p. 10,
ln. 18–21, Ex. 37, TRIAL000720.
198
Dep. of Moreno-Abarca, p. 37, ln. 5–12, Ex. 37, TRIAL000747.
199
PPFFCOL, ¶ 145, Doc. 80 at 27 (citing Billeaud, 603 So. 2d at 756).
195

35

performing the work of Harang Sugars’ business: it was Harang Sugars’ sugarcane that was being
planted on Harang Sugars’ property for the ultimate purpose of allowing Harang Sugars to
cultivate and harvest it. While close, the Court finds Harang Farms has the better side of the
argument. Thus, the Court finds that this factor favors borrowed employment status.
Eighth Factor: Did an agreement exist between Lowry Farms and Harang Sugars?
The eighth factor considers whether there was some agreement between putative borrowing
and putative lending employers evidencing a discussion and understanding of the employees’
status, and specifically whether there was any indicia of control.200 In Dupre v. Sterling Plate Glass
& Paint Co., Inc., 344 So. 2d 1060 (La. App. 1 Cir. 1977) writ denied 347 So. 2d 246 (La. 1977)
the court stated that “the concept of the ‘borrowed employee’ doctrine, by its terms, connotes an
agreement of some type between the lender and the borrower, that the lender relinquished such
control of the employee to the borrower.” 344 So. 2d at 1064 (citing Ruiz v. Shell Oil Co., 413
F.2d 310 (5th Cir. 1969)). The only agreement between Lowry Farms and Harang Sugars was the
April 21, 2015 letter agreement and rate sheet.201 It provides, in pertinent part: “I [Harang Sugars]
agree to pay Lowry Farms, Inc. weekly for the work performed by Lowry Farms, Inc. workers.”202
Thus, the plain language of the only agreement between Harang Sugars and Lowry Farms
establishes that the parties intended that Plaintiffs remain Lowry Farms’ employees while working
on Harang Sugars’ property. No part of this agreement gave Harang Sugars control of the Lowry
Farms cane planters203 and, indeed, Harang Sugars did not want any control of the Lowry Farms
employees.204 This factor weighs against borrowed servant status.

200

Id.
Dep. of Lowry Farms, p. 71, ln. 5–11, Ex. 35, TRIAL000481.
202
Agreement, Ex. 23, TRIAL000625.
203
Dep. of Harang & Harang Sugars, p. 96, ln. 7–10, Ex. 34, TRIAL000096.
204
“Q: Is there any agreement that you’re aware of that gives Harang Sugars any control, whatsoever, of Lowry Farms
cane planters? A. No, sir, and don’t want it.” Id.
201

36

Ninth Factor: Did the employee acquiesce in the new work situation?
The ninth factor asks whether Plaintiffs acquiesced in the new work situation.205 While
Plaintiffs understood that they were planting seed for Harang Sugars on Harang Sugars’ farm, they
likewise understood that they did so as Lowry Farms’ employees and would report to a Lowry
Farms-employed supervisor if there was an issue at the jobsite. Plaintiffs similarly turned to Lowry
Farms’ employees if they had an issue off the worksite, such as with their housing or cashing their
checks. The Court finds there was no acquiescence of these workers to employment for Harang
Sugars. This factor weighs against borrowed servant status.
Tenth Factor: Did Lowry Farms terminate its relationship with or relinquish control
over Plaintiffs?
The final factor considers whether the general employer terminated its relationship with its
employee or relinquished control over him.206 “In order to find that a relationship has been
terminated, this factor requires that the nominal employer place no restrictions upon the
employment conditions of its employees.”207
Louisiana law dictates a presumption that the general employer retains control of his
employee. Thus, the party asserting borrowed employee status must show that “the right of the
general employer to control the employee has terminated, and that the right to control him has been
assumed by the borrowing employer.”208 A sufficient showing is made only where it is
demonstrated that the “general employer gives up control to [the] borrowing employer.”209

205

Billeaud, 603 So. 2d at 756.
PPFFCOL, ¶ 150, Doc. 80 at 28 (citing Billeaud, 603 So. 2d at 756).
207
Id., ¶ 151, Doc. 80 at 28 (citing Foreman v. Danos & Curole Marine Contractors, Inc., 97-2038, p. 10 (La. App. 1
Cir. 9/25/98); 722 So. 2d 1, 6, writ denied, 98-2703 (La. 12/18/98); 734 So. 2d 637 (citing Canty v. A. Bottacchi, S.A.
de Navegacion, 849 F. Supp. 1552, 1554 (S.D. Fla. 1994)).
208
Polozola, 376 So. 2d at 1012, (citing Nichols Const. Corp, 315 So. 2d at 803).
209
PPFFCOL, ¶ 153, Doc. 80 at 29 (citing Andrew-Hong v. Gray Ins. Co., 06-0093, p. 3 (La. App. 4 Cir. 11/2/06);
945 So. 2d 124, 126).
206

37

“A mere showing of a division of control is not sufficient to meet th[e] burden of proof [that the
general employer retains control over his regular employees].”210
As mentioned in connection with the Court’s discussion of an earlier factor, the plain
language of the only agreement between Harang Sugars and Lowry Farms establishes that the
parties intended that Plaintiffs remain Lowry Farms employees while working on Harang Sugars’
property. No part of this agreement gave Harang Sugars control of the Lowry Farms cane
planters,211 and, indeed, Harang Sugars did not want any control of the Lowry Farms employees.212
Another factor evidencing that Lowry Farms did not cede control and remained the
employer of Plaintiffs is the pay structure between Harang Sugars and Lowry Farms and Lowry
Farms and its workers. As mentioned above, Lowry Farms charged its clients by the acre and paid
its workers by the hour. This arrangement is further evidence of the understanding between all
concerned that the cane planters would remain employees of Lowry Farms.
Conclusion Regarding Plaintiffs’ Alleged Borrowed Servant Status
After weighing the disputed and undisputed evidence on this issue, the Court concludes
that Plaintiffs did not become the borrowed servants of Harang Sugars. Of the ten factors, eight
favor this conclusion and two favor borrowed servant status. The Court’s conclusion is
strengthened by its finding that the most important of these, the right of control, clearly militates
against borrowed servant status.
Was Harang Sugars a Special or Joint Employer of Plaintiffs under. La. Rev. Stat. Ann. §
23:1031(c) and/or H-2A Regulations?

210

Polozola, 376 So. 2d at 1012 (citing Nichols Const. Corp., 315 So. 2d at 803).
Dep. of Harang & Harang Sugars, p. 96, ln. 7–10, Ex. 34, TRIAL000096.
212
“Q: Is there any agreement that you’re aware of that gives Harang Sugars any control, whatsoever, of Lowry Farms
cane planters? A. No, sir, and don’t want it.” Id.
211

38

Farm Bureau argues alternatively that even if Harang Sugars did not become the sole
employer by way of the borrowed servant doctrine, Harang Sugars and Lowry Farms were
nonetheless Plaintiffs’ “dual,” “joint,” or “special” employers under Louisiana law, with each
being responsible for payment of workers' compensation benefits and each having immunity from
tort.213 La. Rev. Stat. Ann. § 23:1031(C) provides in pertinent part:
In the case of any employee for whose injury or death payments are due and who
is, at the time of the injury, employed by a borrowing employer in this Section
referred to as a “special employer”, and is under the control and direction of the
special employer in the performance of the work, both the special employer and the
immediate employer, referred to in this Section as a “general employer”, shall be
liable jointly and in solido to pay benefits as provided under this Chapter. . . . The
special and the general employers shall be entitled to the exclusive remedy
protections provided in R.S. 23:1032.214
Farm Bureau argues that Lowry Farms was a general employer in the business of renting
out laborers and Harang Sugars was special employer whose work was being performed at the
time of the accident. Therefore Harang Sugars and Lowry Farms were dual employers for the
purposes of potential tort liability to third persons.215 More importantly for the major issue, Farm
Bureau maintains that Harang Sugars and Lowry Farms were solidarily responsible under
Louisiana workers’ compensation law for benefits due to their joint employees arising out of work
performed at Harang’s Sugars’ farm.216
Farm Bureau points the Court to McGinnis v. Waste Mgmt. of Louisiana, L.L.C., 217 which
it contends is directly on point. Here, the Louisiana Second Circuit held that borrowed employee
status existed for a plaintiff who was the general employee of a temporary employment agency
and the special employee of Waste Management in connection with its waste collection services.

213

DPFFCOL, ¶ 89, Doc. 79 at 21.
La. Rev. Stat. Ann. § 23:1031; DPFFCOL, ¶ 92, Doc. 79 at 22.
215
DPFFCOL, ¶ 95, Doc. 79 at 23 (citing Morgan v. ABC Mfr., 97-0956 (La. 5/1/98); 710 So. 2d 1077).
216
Id.
217
McGinnis v. Waste Mgmt. of Louisiana, L.L.C., 40,330 (La. App. 2 Cir. 10/26/05); 914 So. 2d 612.
214

39

The Court found the two companies were joint employers of the plaintiff, and both were obligated
under Louisiana workers’ compensation laws rather than in tort. The court held that the scenario
presented was precisely the type of situation contemplated by the La. Rev. Stat. Ann. § 23:1031(C)
– “that of a worker employed by, and under the control and direction of, the special employer at
the time of his injury.”218 Because the commercial insurance policy issued by Waste
Management’s insurer excluded any obligation for which Waste Management might be liable
under workers’ compensation law, the immunity enjoyed by the special and general, or joint,
employers excluded coverage for the insurer.219
Louisiana’s Revised Statutes do not provide a definition of “special employer” or “general
employer.” However, state courts have held that these terms, and the test used to determine whether
one falls under one or the other, is analogous to the test for “borrowed employer” status.220 Indeed,
Farm Bureau concedes that the test for dual employment is essentially the same as the borrowed
employee test previously detailed.221 However, they urge that the result of the analysis should be
that “the plaintiffs…were ‘borrowed employees’ under La. Rev. Stat. Ann. § 23:1031(c) because
the laborers at Harang Sugars’ farm were under the control and direction of Harang Sugars at all
times.”222 The Court disagrees. For the reasons previously given by the Court in connection with
its analysis of the borrowed servant issue, the Court finds that Harang Sugars was not a special,
joint or dual employer of Plaintiffs.

218

Id. at pp. 8–9; at 617.
DPFFCOL, ¶ 96, Doc. 79 at 23–24 (citing McGinnis, 40,330 at pp. 8–9; 914 So. 2d at 617).
220
See McGinnis, 40,330 at pp. 6–7; 914 So. 2d at 616 (citing Vaughn v. BFI Waste Sys. Of North Am., 01-1105 (La.
App. 4 Cir. 7/25/01); 793 So. 2d 410; Clarendon Nat’l Ins. Co. v. Jeansonne & Remondet L.L.C., 37,765 (La. App. 2
Cir. 10/23/03); 859 So. 2d 877, writ denied, 04-0002 (La. 3/12/04); 869 So. 2d 826) (applying the nine-factor borrowed
employee test to determine whether the defendant was a special employer under La. Rev. Stat. Ann. § 22:1031(C));
Hebert v. Richard, 10-1417, pp. 4, 10 (La. App. 3 Cir. 7/6/11); 72 So. 3d 892, 897, 900 (citing Green v. Popeye’s Inc.,
619 So. 2d 69, 73 (La. App. 3 Cir. 1993) (quoting Billeaud, 603 So. 2d at 756))) (finding the test for special employer
under La. Rev. Stat. Ann. § 22:1031(C) is the same as the nine-factor test under the borrowed employee doctrine).
221
DPFFCOL, ¶ 94, Doc. 79 at 23.
222
Id., ¶ 107, Doc. 79 at 28.
219

40

Ordinarily, in order for a party to claim dual or joint employer status, that party must
establish that the right of the general employer to control the employee has ended and that the right
to control him has been assumed by the borrowing employer.223 A mere showing of a division of
control is not sufficient to rebut the presumption that a general employer retains control over his
regular employees.224 In any event, the Court finds that Harang Sugars never exercised control of
Plaintiffs so as to give it borrowed or joint employer status.
Farm Bureau makes, as Plaintiffs correctly note, a “straw man” argument charging that
“Plaintiffs’ urge that there can be only one employer in the instant case” and then cite law
supporting the notion of joint or dual employment.225 Plaintiffs respond that first, they never made
this argument and second, “the point Farm Bureau ignores is that the dual liability under 1031(C)
arises only when there is first a borrowing situation. In other words, had Plaintiffs become Harang
Sugars’ borrowed employees, both Harang Sugars and Lowry Farms would be jointly liable for
workers compensation benefits under 1031(C). But if, as Plaintiffs contend, Plaintiffs never
became borrowed or “special” employees of Harang Sugars, there can be no dual employment
under 1031(C).”226
The Court agrees with Plaintiffs. For the reasons detailed above, Harang Sugars never
became the borrowing employer of Plaintiffs and therefore cannot be their dual, joint or special
employer.
Applicability of H2-A Regulations and Definitions
In support of its contention that Harang Sugars was Plaintiffs’ sole, special, joint or dual
employer, Farm Bureau points the Court to the regulatory definitions promulgated by the

223

Polozola, 376 So. 2d at 1012 (citing Nichols Const. Corp., 315 So. 2d at 803).
Id.
225
Plf. Response to DPFFCOL, Doc. 83 at 4 (quoting and citing Doc. 79 at 19–22, ¶¶ 89–96).
226
Id., emphasis added.
224

41

Department of Labor governing the H-2A visa program. It also urges that the federal statute and
regulations are relevant to the issue of insurance coverage.
Specifically, Farm Bureau urges that Plaintiffs should be considered Harang Sugars’
employees under the H-2A federal regulations.227 It further argues that under the regulatory
definitions promulgated by the U.S. Department of Labor (“DOL”) governing the H-2A visa
program, Harang Sugars and Lowry Farms must, at a minimum, be considered Plaintiffs’ joint
employers.228 It urges the Court to apply an “economic realities” test to determine whether the two
companies were Plaintiffs’ joint employers under H-2A regulations.229 Alternatively, it alleges
Harang Sugars and Lowry Farms were “special employers” under the LWCA, and avers that the
test for special employers under Louisiana law is analogous to the test for joint employer under H2A regulations and/or supported by it.230
In short, Plaintiffs respond that Farm Bureau’s H-2A argument is misguided and is an
improper comparison of “apples to oranges.”231 They argue that the “economic realities” test urged
by Farm Bureau is derived from the definition of “employ” under the Fair Labor Standards Act
(FLSA), which DOL uses to support the remedial purpose of giving H-2A visa workers the
broadest protections possible.232
In any event, argue Plaintiffs, even if the Court were to consider Harang an “employer”
under H-2A regulations, this is wholly irrelevant to the dispositive inquiry here, which is whether
Plaintiffs were Harang Sugars’ employees as defined by the liability policy issued by Farm

227

DPFFCOL, ¶¶ 108–117, Doc. 79 at 26–29.
Id.
229
Id., ¶¶ 114, 117, Doc. 79 at 30.
230
Def. Response to PPFFCOL, Doc. 82 at 2–3.
231
See generally PPFFCOL, ¶¶ 110–120, Doc. 80 at 20–22.
232
Id., ¶¶ 110–111, Doc. 80 at 20 (citing 29 U.S.C. § 203(g)); McLaughlin v. Seafood, Inc., 867 F.2d 875, 877 (5th
Cir. 1989) (per curiam), modified 861 F.2d 450 (5th Cir. 1988); Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
326, 112 S. Ct. 1344, 117 L. Ed.2d 581 (1992); Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996); Hopkins
v. Cornerstone Am., 545 F.3d 338, 347 (5th Cir. 2008))).
228

42

Bureau.233 Because the term “employee” is not specifically defined in that policy, the term must
be given its ordinary and usual meaning, which in this case, render Plaintiffs beyond the purview
of employee status under the policies.234
As stated above, the Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332, and is
therefore bound to apply Louisiana state law.235 There is no Louisiana Supreme Court decision
addressing the argument Farm Bureau raises here, and therefore, the Court must again make an
Erie guess to determine the soundness of its argument. As discussed below, the Court is confident
that the Louisiana Supreme Court would not extract a statutory definition from the FLSA and apply
it to issues arising exclusively under state law, i.e. employer/employee status for purposes of
worker’s compensation, tort liability and insurance coverage.
The Court notes the dearth of jurisprudence Farm Bureau offers in support of its novel
argument that Harang Sugars is the joint employer for liability purposes based upon the H-2A
regulations. Furthermore, the Court finds that although the Plaintiffs in this case were in the United
States on H-2A visas issued by DOL, the dispute at issue here does not implicate their status as H2A laborers, nor does it involve application of the administrative regulations promulgated by the
DOL.
The central inquiry of this dispute is, as Plaintiffs correctly note, whether or not Plaintiffs
were “employees” for purposes of Louisiana law and Harang Sugars’ liability policies issued by
Farm Bureau. This inquiry and the pertinent analysis would remain unchanged if Plaintiffs were
Lowry Farms’ employees recruited locally rather than from Mexico. Every other argument urged
by Farm Bureau involves the application of Louisiana state law; it offers no logical or principled

233

Id., ¶¶ 112–120, Doc. 80 at 2–22.
Id., ¶ 118, Doc. 80 at 21–22 (citing Savoie v. Fireman’s Fund Ins. Co., 347 So. 2d 188, 191 (La. 1977).)
235
See James, 743 F.3d at 69; Am. Int’l Specialty Lines, 352 F.3d at 260.
234

43

reason why the Court should apply language from federal regulations subject to administrative
review.
The Fifth Circuit noted that “[t]he remedial purposes of the FLSA require the courts to
define ‘employer’ more broadly than the term would be interpreted in traditional common law
applications.”236 This jurisprudence makes clear that FLSA terms are unique to the FLSA and
transplanting their distinctive definitions to issues arising under state law is not a practice in which
Courts should engage. Accordingly, the Court declines Farm Bureau’s invitation to do so here and
holds that whatever definition of “employer” or “joint employer” is provided by the FLSA, it is
wholly inapposite to the dispute at the heart of this case.
Was Harang Sugars the Statutory Employer of Plaintiffs under La. Rev. Stat. Ann. § 23:1061?
Although Farm Bureau alleges that Plaintiffs were independent contractors engaged in
manual labor as defined in La. Rev. Stat. Ann. § 23:1021(7), Plaintiffs counter that Section 1021(7)
is inapplicable here because that provision of the Louisiana Workers’ Compensation Act applies
only to instances where the principal is obligated to provide coverage to an individual in direct
contractual privity with the principal as an independent contractor, which is not the case here.237
Instead, Plaintiffs assert that the relevant provision is actually La. Rev. Stat. Ann. § 23:1061, which
“applies to the contractor’s employees vis-à-vis the contractor’s principal.”238
Plaintiffs are correct that La. Rev. Stat. Ann. § 23:1061 “provides guidance as to when a
contractor’s employee, rather than a contractor himself, may recover under the principal’s

236

McLaughlin, 867 F.2d at 877; see also Walling v. Portland Terminal Co., 330 U.S. 148, 150, 67 S. Ct. 639, 640,
91 L. Ed. 809 (1947) (“…in determining who are ‘employees’ under the [FLSA], common law employee [sic]
categories or employer-employee classifications under other statutes are not of controlling significance… This Act
contains its own definitions, comprehensive enough to require its application to many persons and working
relationships, which prior to this Act, were not deemed to fall within an employer-employee category.” (citation
omitted)).
237
Plf. Opposition to MSJ, Doc. 48 at 4.
238
Id. at 6 (emphasis omitted).

44

worker’s compensation liability.”239 Such is the case here. Plaintiffs worked for Harang Sugars by
operation of Plaintiffs’ contract with Lowry Farms, and Lowry Farm’s contract with Harang
Sugars. There was no contractual privity between Plaintiffs and Harang Sugars.
Nonetheless, nowhere in its briefing has Farm Bureau alleged tort immunity through the
application of La. Rev. Stat. Ann. § 23:1061 and Plaintiffs argue that, while the appropriate article
governing this kind of situation, Farm Bureau has conceded 1061 does not apply here.240 In its
briefing, Farm Bureau did not contend otherwise. At the oral argument on pretrial motions held on
February 9, 2017, the Court pointedly asked counsel for Farm Bureau its position on the
applicability of La. Rev. Stat. Ann. § 23:1061, to which counsel replied that Farm Bureau had not
taken a position on the issue.241 When asked what Farm Bureau’s position on the issue was at that
juncture, counsel represented that he would not be arguing the applicability of 1061, as it was his
belief that there were more effective vehicles to bar Plaintiffs’ recovery in tort.242 Nowhere in pretrial or post-trial briefing has Farm Bureau argued for tort immunity based on 1061 and the Court
finds none on its own.
Do Farm Bureau’s Policies Cover the Loss?
Farm Bureau's farm liability and umbrella policies exclude coverage for tort liability for
injuries to employees; coverage for such claims is provided by worker’s compensation and
employer’s liability policies, and not general or farm liability policies.243 Farm Bureau argues that
Plaintiffs are either employees of Harang Sugars or independent contractors engaged strictly in
manual labor and, as such, Plaintiffs’ exclusive remedy against Harang is in workers’

239

Guidry, 97-874 at p. 4; 706 So. 2d at 150 (emphasis original).
See Plf. Opposition to MSJ, Doc. 48 at 5 n.13.
241
Minutes of Motion Hearing for Partial Summary Judgment by Plfs. and Motion for Summary Judgment by Def.,
Doc. 73 at 9.
242
Id.
243
DPFFCOL, ¶ 118, Doc. 79 at 31.
240

45

compensation and therefore, given the policies’ exclusions, there is no coverage available for the
Plaintiffs’ or Intervenor’s claims under either policy.244
Plaintiffs argue, to the contrary, they are neither employees nor independent contractors
engaged in manual labor, and therefore no policy exclusion applies to exclude coverage. As to
Farm Bureau’s attempted reliance on FLSA regulations and its definitions, Plaintiffs argue that the
word “employee” in an insurance contract must be given its ordinary and usual meaning.245 This
is particularly so because the Farm Bureau policies do not define “employee.”246
“[A]bsent an indication of a different meaning in an insurance contract, the word
‘employee’ understood in its common and usual sense, signifies one who is a party to an
employment contract, express or implied.”247 Thus, argue Plaintiffs, Farm Bureau’s attempt to use
the FLSA and H-2A regulations and graft upon the insurance policies as well as Louisiana law
“the broadest definition [of ‘employee’] that has ever been included in any one act”248 and one that
“cover[s] some parties who might not qualify as such under a strict application of traditional
agency law principles”249 – runs against the word “in its common and usual sense” and should be
rejected.
The Court agrees. As previously discussed above in a different context, the FLSA and H2A definitions are inapplicable for the use for which Farm Bureau attempts to put them.
Accordingly, the Court finds the policy exclusions relied upon do not apply.
Conclusion

244

Id., ¶ 119.
Plf. Response to DPFFCOL, Doc. 83 at 4 (citing Savoie 347 So. 2d at 191).
246
PPFFCOL, ¶ 52, Doc. 80 at 9 (citing Liability Policy, Ex. 27, TRIAL000804–875).
247
Id., quoting Savoie at 191.
248
Plf. Response to DPFFCOL, Doc. 83 at 5 (quoting United States v. Rosenwasser, 323 U.S. 360, 363 n.3, 65 S. Ct.
295, 296, 89 L. Ed. 301 (1945)).
249
Id., (quoting Nationwide, 503 U.S. at 326).
245

46

Plaintiffs are neither employees of Harang Sugars nor independent contractors performing
manual labor within the meaning of Louisiana’s workers compensation laws. In addition, there are
no exclusions to coverage for these claims under the Farm Bureau policies. There is therefore no
legal impediment to Plaintiffs’ tort claims against Harang Sugars, Smith and its farm liability and
umbrella insurers.
Therefore, in accordance with the stipulations reached among the parties, the Court renders
judgment in favor of Alejandro Jorge-Chavelas and against Farm Bureau in the amount of
$1,937,500. The Court renders judgment in favor of Alfredo Moreno-Abarca and against Farm
Bureau in the amount of $562,500. Legal interest is awarded on both awards from date of judicial
demand until paid. Within seven days the parties shall submit a judgment which incorporates this
ruling and details the amounts owed under each Farm Bureau policy as well as any relief owed to
Intervenor American Interstate Insurance Company.
Signed in Baton Rouge, Louisiana, on March 9, 2018.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

47