Opinion
CIVIL ACTION 02-2316, SECTION "T" (1)
January 13, 2003
Before the Court is a Motion for Summary Judgment filed on behalf of the Defendant, BASF Corporation, Inc., hereinafter BASF. The Court, having considered the arguments of counsel, the evidence presented, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
The Plaintiffs, Margaret Brown and Henry Holmes, allege that they were exposed to phosgene and/or other vapors while working in the course and scope of their employment for National Maintenance in the MDI II unit of BASF's Geismar facility on October 30, 2001. Phosgene is a deadly gas once used as a chemical weapon in World War I. BASF manufactures and sells a variety of chemicals including MDI. The Plaintiffs allege that the injuries allegedly sustained were due to the negligence of BASF and that BASF is liable on the basis of negligence and/or strict liability.
BASF contracted with National Maintenance to perform general maintenance at BASF's Geismar facility. The contract is entitled "Master Agreement for Supplemental Maintenance and Construction Services." The work performed by the Plaintiffs on October 30, 2001, in the MDI II unit of BASF's Geismar facility, was pursuant to the contract. The Plaintiffs were performing a turnaround in the MDI II unit so that the unit would operate at optimal capacity. The Plaintiffs were fire watchers. Fire watchers monitor the performance of "hot work," work in which ignition sources, which could potentially cause fires, are used. The Plaintiffs' duties included keeping the area clean of trash and welding debris, wetting the area down, and shutting down the job if the conditions became unsafe.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of BASF in Support of Motion for Summary Judgment:
The Defendant, BASF, argues that the Plaintiffs were statutory employees of BASF at the time of the incident and that, as statutory employees, the Plaintiffs' claims are barred by the Louisiana Workers Compensation Act and the Statutory Employee Doctrine. La. R.S. 23:1021 et seq. The Louisiana Workers Compensation Act provides, with limited exceptions, that an employer is immune from suit in tort by his employee and/or family members for injuries or death that occur on the job. In accordance with La. R.S. 23:1032, an employer is immune from suit by his employee except for an intentional tort of the employer. The Louisiana Workers Compensation Act provides the exclusive remedy to an injured employee and the courts have narrowly interpreted the intentional tort exception in observance of the underlying legislative intent. The Louisiana Workers Compensation Act applies both to a direct employer/employee relationship as well as to the statutory employer/employee relationship. The doctrine of "statutory employer" is codified in La. R.S. 23:1061 and states in part "for purposes of this section, work shall be considered an integral part of the principal's trade, business, or occupation if it is an integral part essential to the ability of the principal to generate that individual principal's goods, products, or services." In adopting this language in the amendment, the legislature adopted a more favorable and streamline test allowing principals, like BASF, to be deemed statutory employer of a contractor's employee or an employee of a contractor's subcontractor. The legislature also intended, as evidenced by Section 2 of Acts 1997 § 1, to overrule the complicated, multi-factor statutory employer tests formulated by the Louisiana Supreme Court in its Berry v. Holston Well Service, 488 So.2d 934 (La. 1986) and Kirkland v. Riverwood Intern. USA, Inc., 95-C-1839 (La. 9/13/96); 681 So.2d 329 decisions.
The Defendant argues that the contract that existed between BASF and National Maintenance gives rise to a rebuttable presumption and that the Plaintiff is unable to overcome the rebuttable presumption that the work performed under the contract is an integral part of or essential to the ability of the principal to generate the principal's goods, products, or services. The existence of a written contract, like the one that exists here, gives rise to a rebuttable presumption that the work performed under the contract is an integral part of or essential to the ability of the principal to generate the principal's goods, products, or services. Once the presumption is established, the Plaintiff has the burden of proving that such a relationship does not in fact exist. In order to overcome the presumption, the Plaintiff must present evidence showing that the work he was hired to perform was not an integral part of or essential to the ability of the principal to generate the principal's goods, products, or services. The Fifth Circuit has held that, in light of the legislative responses to the restriction of statutory employee status by the courts, the legislature intended the section to apply to new construction under the circumstances present. Applegarth v. Transamerican Refining Corp., 00-1547 (La.App. 5th Cir. 2/28/01); 781 So.2d 804 at 807. In Applegarth, the plaintiff filed suit against an oil refinery, with whom his direct employer had contracted, claiming damages for injuries sustained in a bus accident while working at the refinery. The plaintiff was held to be the statutory employee of the oil refinery because he did not rebut the presumption of statutory employment that was raised by the contract between his direct employer and his statutory employer. Id. The court determined that, as the statutory employee, his exclusive remedy was in worker's compensation. Id. Other courts have relied heavily on the fact that a written contract existed between the employee's direct employer and the statutory employer and have found that the plaintiff was unable to overcome the rebuttable presumption that arises from the existence of a written contract. See Johnson v. Tennessee Gas Pipeline Company, 99 F. Supp.2d 755 (E.D. La. 2000). The Plaintiffs in the present case were doing work provided for in the contract between BASF and National Maintenance and the work performed was an integral part of or essential to the ability of the principal to generate the principal's goods, products, or services.
B. Arguments of Margaret Brown and Henry Holmes in Opposition to Motion for Summary Judgment:
The Plaintiffs argue that they can overcome the presumption that arises from the existence of a contractual relationship by showing that the work performed by the Plaintiffs constituted a new construction. The 1997 amendments to R.S. 23:1061 reinstated the integral relations test of Thibodeaux v. Sun Oil, 49 So.2d 852 (1950). The fact that the legislature chose to omit the language referring to extraordinary or new construction that was present in the 1989 amendment shows that the legislature intended to fully reinstate the integral relations test as it was interpreted by Thibodeaux v. Sun Oil, supra and its progeny. The case law at that time held that new construction was not an integral part of the principal's trade, business, or occupation. Reeves v. Louisiana Ark. Ry. Co., 282 So.2d 852 (1950). Despite the contrary authority of Applegarth, as cited by Defendants, the Supreme Court of Louisiana denied writs in that case and has yet to decide the issue of whether new construction should be considered an integral part of the principal's trade, business, or occupation under the 1997 amendment. Id. The Plaintiff, therefore, can overcome the presumption by proving the work was a new construction and, therefore, not covered by the 1997 amendment. The Defendant's Motion for Summary Judgment should be denied.
C. BASF's Reply:
BASF argues that they are entitled to summary judgment as a matter of law because the Plaintiffs cannot meet their burden under La. R.S. 23:1061. The evidence submitted by both parties clearly indicates that National Maintenance was performing a turnaround in an existing unit at the time of the accident and was not "new construction." The turnaround included routine maintenance work, modifications, replacements, and an upgrade. Regardless of the terms used to describe Plaintiffs' work, the work falls within the statutory employer doctrine and the Plaintiffs are statutory employees. Furthermore, there is no evidence that National Maintenance has ever performed "new construction" at BASF. The case law clearly indicates that maintenance work, modifications, replacements, and upgrades are considered part of the petrochemical facilities and oil refineries' trade business and occupation. This rule holds true for the variety of statutory employer tests that have been applied over the decades. Moreover, "new construction" falls under the 1997 amendment and an argument almost identical to the Plaintiffs' argument was rejected in Applegarth. Id. If the work in Applegarth falls within the 1997 amendment, surely the work performed by the Plaintiffs in this case also falls within the 1997 amendment. The Defendants, therefore, are entitled to summary judgment as a matter of law.
III. LAW AND ANALYSIS:
A. Law on Summary Judgment:
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. The Court's Analysis:
The Court is bound by the Fifth Circuit decision in Applegarth. Id. In Applegarth, the court concluded that the history of legislative responses to the restriction of statutory employee status by the courts shows that the legislature intended the section to apply to new construction under these circumstances. Id. at 807. The plaintiff in Applegarth was hired to do carpentry work at an oil refinery and this work included constructing a retaining wall around oil tanks and laying cement forms for the installation of piperacks. Id. The Plaintiffs, Margaret Brown and Henry Holmes, work at the BASF likewise falls within the 1997 amendment and they are statutory employees of BASF. As statutory employees, their only remedy, and the only remedy for Deddra Holmes, wife of Henry Holmes, falls under The Louisiana Workers Compensation Act. The Court hereby grants the Defendant's Motion for Summary Judgment.
Accordingly,
IT IS ORDERED that the Defendant's, BASF Corporation, Inc., Motion for Summary Judgment is hereby GRANTED.