Opinion
Civ. No. 98-0146 SECTION: E/1.
March 21, 2000.
ORDER AND REASONS
Presently pending before the Court for decision is the motion of defendants, Kevin Van Duser and TIG Holding Company, d/b/a TIG Insurance Company and/or TIG Insurance Company of New York, and Pathfinder Insurance Company, for summary judgment on plaintiff Robert Hagerty's claims on the basis that they are insulated from tort liability because Hagerty's exclusive remedy against them is worker's compensation under the Louisiana Worker's Compensation Statute, LSA-R.S. 23:1032, et seq. The Court initially considered this motion and deferred ruling on it to afford the parties an opportunity to file supplemental briefs addressing the question whether Ridgeway was the statutory employer of Hagerty. That Order and Reasons, which was filed in the companion case of Henry Zazzi v. Ridgeway International, Civil Action 97-3009, Rec. Doc. No. 127, Feb. 9. 2000, is attached hereto and specifically incorporated herein. (Court Exhibit A). The facts are detailed therein and will not be repeated.
The parties did file supplemental briefs addressing the issues in this motion. Defendants contend that there are two distinct bases upon which a principal may avail itself of the statutory employer defense, which are 1) when the principal contracts with another for the execution of work which is a part of the principal's trade, business or occupation, and 2) the "two contract" statutory employer defense. They assert that they are not relying on the first type, but on the second, or "two-contract" statutory employer defense. They seek judgment on the grounds that the principal contractor, Ridgeway, contracted with another, either Straight Shot or Hagerty, to perform all or part of the work which the principal, Ridgeway, is contractually obligated to perform pursuant to its contract with the NFL. As explained by the court in Gobert v. McDermott. Inc., 634 So.2d 873 (La.App. 1st Cir. 1993)
Thus, to prevail on summary judgment, the party asserting the two-contract defense must establish that (1) defendant entered into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for defendant to fulfill its contractual obligation to perform the work, he entered into a subcontract for all or part of the work performed. [citation omitted)634 So.2d at 875. The court Orillion v. Alton Ochsner Medical Foundation, 685 So.2d 329 (La.App. 5th Cir. 1996) recognized that "[t]he purpose behind the two contract theory is to establish a compensation obligation on the part of the principal who contractually obligates itself to a party for the performance of work and who then subcontracts with intermediaries whose employees perform any part of that work. In return for compensation obligation, such a principal is then insulated from tort liability." [citation omitted) 685 So.2d at 332.
There are unresolved factual issues concerning the relationship between Ridgeway and Hagerty or Straight Shot. After reviewing the memoranda and attachments thereto, the Court finds it extremely likely that, ultimately, Hagerty will be determined to be either a direct employee of Ridgeway, or an employee of Straight Shot, a subcontractor of Ridgeway. In either case, assuming he was in the course and scope of his employment at the time of his accident, which will be discussed below, Hagerty will be limited to a compensation remedy as to Ridgeway, because he is either a direct employee, or a "two-contract" statutory employee. While it is not entirely clear, the Court gleans from the record that neither Ridgeway nor the NFL ever paid any worker's compensation to Hagerty, which is troublesome since the clear purpose of the statutory employer doctrine was to ensure that subcontractor's employees received compensation from the principal contractor. In any case, because important factual issues remain unresolved regarding Hagerty's status vis-a-vis this issue, the Court finds that summary judgment should be denied.
Hagerty did not directly address this question, except to indicate that he thought the two-contract theory was applicable only to the NFL/Ridgeway's employees, and was silent concerning Ridgeway/Straight Shot's employees, a question he must ultimately face. He rests his summary judgment attack on his argument that there are material issues of fact in dispute respecting whether he was in the course and scope of his employment. Since the Court is denying the motion, it is unnecessary to decide whether or not the plaintiff was in the course and scope of his employment, as it will be a question for trial. It is plain, however, that plaintiff had traveled to the City of New Orleans for purpose of performing work on Hagerty's behalf, which Hagerty had contracted with the NFL to perform. He did not travel to New Orleans at his own expense, but at Hagerty's expense, and had not arranged for his own transportation at his own expense while he was here. Indeed, he and another Hagerty operative had been rented a vehicle which Hagerty had arranged to provide him at the NFL's expense. He was not in that vehicle at the time of his injury, because the person he was sharing the rented vehicle with was ill. He was traveling in another vehicle driven by a Hagerty employee, rented for the employee at the NFL's expense, and being driven to the site where he was going to perform services on the Hagerty contract for the NFL. He was clearly not on a personal mission and the necessities of Ridgeway's business required him to be traveling in the vehicle at the time of the accident. See, Bolton v. Tulane University, 692 So.2d 1113, 1122 (La.App. 4th Cir. 1997).
While normally, an employee is not considered to be in the course and scope of his employment if he is injured while he is traveling to and from work, there are several jurisprudential exceptions to this rule. Keith v. Gelco Corp., 705 So.2d 244, 247 (La.App. 2d Cir. 1997). When the employer has furnished transportation as an incident to the employment agreement, either through furnishing a vehicle or paying the expenses, or paying wages to the employee for traveling time, the employee is in the course and scope. Id. Other exceptions include if the employee is on a specific mission for the employer, such as making a trip in the interest of his employer's business or pursuant to his employer's order, or the employee is doing work for the employer under circumstances where the employer's consent could be fairly implied. Yates v. Naylor Industrial Services, Inc., 569 So.2d 616, 619-20 (La.App. 2d Cir. 1990)
Plaintiff suggests that he was not provided a vehicle by Ridgeway because he was an independent contractor, and that he "hitched" a ride with a Ridgeway employee. In the Court's view, the facts simply do not support this argument. Plaintiff did not pay for his own rental vehicle, but instead it was furnished to him and a Ridgeway operative at NFL expense, pursuant to the Ridgeway contract with the NFL. He was given a ride by another Ridgeway operative that morning in another vehicle furnished by Ridgeway at NFL expense. The fact that Straight Shot may, or may not, have been a Ridgeway subcontractor is irrelevant, because he was treated in the same manner as other Ridgeway operatives performing similar work insofar as transportation to and from the various SuperBowl related venues and their hotels were concerned. The Court is not ruling on this question as a matter of law, since the summary judgment is being denied on another basis, but defendants appear to have the better side of this question.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendants Kevin Van Duser and TIG Holding Group, d/b/a TIG Insurance Company and/or TIG Insurance Company of New York, and Pathfinder Insurance Company for summary judgment be and is hereby DENIED.
New Orleans, Louisiana, March 21st, 2000.