Prior to the amendment of 23:1061(A.), Berry v. Holston Well Service, Inc., 488 So.2d 934 (La. 1986), provided a three prong test for determining when a principal could be considered the statutory employer of a contractor's employees in a one-contract situation. The court in Brock v. Chevron Chemical Company, 750 F. Supp. 779, 781 (E.D.La. 1990), has recently interpreted the amendment to be a repudiation of the Berry test and a reinstatement of previous jurisprudence providing for a liberal standard for principal tort immunity and requiring only that contract work be a part of the principal's trade, business or occupation for principal tort immunity. The Brock court went on to hold that a "worker is performing work that is within the 'trade, business or occupation' of the principal . . . whenever the work done by the employee is essential to the principal's business", relying on Thibodaux v. Sun Oil Company, 40 So.2d 761 (La.App. 1st Cir. 1949), affirmed, 218 La. 453, 49 So.2d 852 (1950).
Sawyer, at 2. In Brock v. Chevron Chem. Co., 750 F. Supp. 779 (E.D.La. 1990), the court concluded the amendment is interpretive because it is a legislative response specifically rejecting the "judicial gloss" the Berry court added to 23:1061. Brock, 750 F. Supp. at 783.
An employee of an independent contractor performing turnaround work at an oil refinery has been held to be a statutory employee of the refinery under practically identical circumstances in Seeney v. Citgo Petroleum Corp., 848 F.2d 664 (5th Cir. 1988). The court in Brock v. Chevron Chemical Co., 750 F. Supp. 779, 782 (E.D.La. 1990) held that a "worker is performing work that is within the 'trade, business, or occupation' of the principal. . . . whenever the work done by the employee is essential to the principal's business.
The test enunciated in Berry requires the examination of the following: (1) examination of the scope of the work contract โ whether specialized or not; (2) comparison of the principal's trade, business or occupation and the contract work to see whether it can be considered part of the principal's trade, business or occupation; and (3) whether the principal is engaged in the work at the time of the accident at issue.See, Brock v. Chevron Chemical Company, 750 F. Supp. 779, 781 (E.D.La. 1990); and Legros, 583 So.2d 859, 862. The court in Brock v. Chevron Chemical Co., 750 F. Supp. 779, 782 (E.D.La. 1990) held that a "worker is performing work that is within the 'trade, business, or occupation' of the principal . . . whenever the work done by the employee is essential to the principal's business."
Recently, this court in Harris v. Murphy Oil, U.S.A., Inc., 980 F.2d 991, 992 (5th Cir. 1992), applied the amendment and concluded that the law has returned to the integral relation test. See also Duhon v. Conoco, Inc., 795 F. Supp. 189, 192-93 (W.D.La. 1992) (concluding that the law has returned to the integral relation test); Savant v. James River Paper Co., 780 F. Supp. 393, 396-97 (M.D.La. 1992) (same); Brock v. Chevron Chem. Co., 750 F. Supp. 779, 781-82 (E.D.La. 1990) (same), vacated on other grounds, 946 F.2d 1544 (5th Cir. 1991). Similarly, in Pierce v. Hobart Corp., 939 F.2d 1305 (5th Cir. 1991), this court held that the amendment should apply prospectively and noted that the amendment "reverses years of limited judicial applications of the statutory employer defense and returns Louisiana to the more expansive integral relation test."
The 1989 amendment legislatively revised the Berry test and effectively directed the courts back to the previously discarded "integral relation" test found in Thibodaux. See Saavedra v. Murphy Oil, U.S.A., Inc., 930 F.2d 1104, 1108 n. 2 (5th Cir. 1991); Savant v. James River Paper Co., Inc., 780 F. Supp. 393, 397 (M.D.La. 1992); Brock v. Chevron Chem. Co., 750 F. Supp. 779, 781 (E.D.La. 1990), vacated on other grounds, 946 F.2d 1544 (5th Cir. 1991); Sawyer v. Texaco Ref. Mktg., Inc., No. 89-2734, 1991 WL 28986 (E.D.La. Feb. 25, 1991). Consequently, the Legislature broadened the reach of the statutory employment language and dramatically curtailed the right of a subcontractor's employee to sue a principal in tort for a work-related injury.
Two recent district court cases have held that Berry has been legislatively overruled by La. Rev.Stat.Ann. ยง 23:1061(A) (West Supp. 1991). See Sawyer v. Texaco Refining Marketing, Inc., No. 89-2734, 1991 WL 28986 (E.D.La. Feb. 25, 1991); Brock v. Chevron Chem. Co., 750 F. Supp. 779 (E.D.La. 1990), appeal docketed, No. 90-3854 (5th Cir. Nov. 28, 1990). Moreover, these cases further hold that ยง 1061 is interpretive in nature and should be applied retroactively.
See Pierce, 939 F.2d at 1309. See also the concurring opinion of Chief Judge Domengeaux in Fountain v. Central Louisiana Electric Co., 578 So.2d 236 (La.App. 3 Cir. 1991), writ denied, 581 So.2d 707 (La. 1991); contra Brock v. Chevron Chemical Company, 750 F. Supp. 779, 783 (E.D.La. 1990), vacated 946 F.2d 1544 (5th Cir. 1991). 939 F.2d 1305 (5th Cir. 1991).
George W. Pugh, Jr., Judge Albert Tate, Jr. and the Employee Personal Injury Action: An Overview, 47 La. L. Rev. 993, 1006 (1987) (The 1976 amendment "foreclosed any further judicial reconsideration of the concerns raised by Judge Tate in Broussard, and the imbalance in the act remains."); see Broussard v. Heebe's Bakery, Inc., 268 So.2d 656, 661 (La. 1972) (Tate, J., concurring).See ante at 10; see also Brock v. Chevron Chemical Co., 750 F. Supp. 779, 780-81 n.2 (E.D. La. 1990) (Collins, J.) (finding the Benson, Lewis, and Rowe cases began the departure from a liberal construction of the statutory employer doctrine), vacated on other grounds, 946 F.2d 1544 (5th Cir. 1991). Based upon the foregoing, I would reverse the court of appeal's judgment and reinstate the judgment of the trial court, which applied the integral relation test to the facts of this case.
602 So.2d at 47; see also Bowens v. General Motors Corp., 596 So.2d 243, 245-46 (La.App. 3d Cir.), writs granted, 600 So.2d 593, 594 (La. 1992) (reaching same result);Young v. Lyons Petroleum, Inc., 598 So.2d 702 (La.App. 3d Cir.), writs denied, 605 So.2d 1149, 1150 (La. 1992); Bourgeois v. Puerto Rican Marine Management, Inc., 589 So.2d 1226 (La.App. 3d Cir. 1991), writs denied, 592 So.2d 1299, 1300 (La. 1992). Contra Brock v. Chevron Chemical Co., 750 F. Supp. 779 (E.D.La. 1990), vacated by, 946 F.2d 1544 (5th Cir. 1991). We render a separate opinion today in Bowens v. General Motors Corp., 608 So.2d 999 (La. 1992).