Opinion
NO. 2021 CA 1229
06-03-2022
Jenny Ann BADEAUX v. ST. TAMMANY PARISH HOSPITAL SERVICE DISTRICT NO. 1 d/b/a St. Tammany Parish Hospital
Matthew A. Sherman, Nicholas R. Varisco, Metairie, LA, Attorneys for Plaintiff-Appellant, Jenny Ann Badeaux Bradley R. Belsome, Brodie G. Glenn, Crystal E. Domreis, New Orleans, LA, Attorneys for Defendant-Appellee, St. Tammany Parish Hospital Service, District No. 1 d/b/a St. Tammany Parish Hospital
Matthew A. Sherman, Nicholas R. Varisco, Metairie, LA, Attorneys for Plaintiff-Appellant, Jenny Ann Badeaux
Bradley R. Belsome, Brodie G. Glenn, Crystal E. Domreis, New Orleans, LA, Attorneys for Defendant-Appellee, St. Tammany Parish Hospital Service, District No. 1 d/b/a St. Tammany Parish Hospital
BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.
HESTER, J.
In this personal injury matter, plaintiff appeals the trial court's grant of summary judgment in favor of defendant and denial of her motion for partial summary judgment finding that defendant was the statutory or borrowed employer of plaintiff and therefore plaintiff's exclusive remedy was under the Louisiana Workers’ Compensation Act. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Agiliti Surgical Inc. ("Agiliti") is a medical equipment management company that provides medical equipment necessary for certain procedures, including lasers and laser technicians, to several different area hospitals including the defendant, St. Tammany Parish Hospital ("STPH"). In 2012, STPH and Agiliti entered into a Service Agreement which set forth the agreement between STPH and Agiliti for Agiliti to provide medical equipment to STPH. The Service Agreement stated that for the purpose of workers compensation, STPH was the statutory employer of all of Agiliti's employees. The Service Agreement also contained a term providing that the agreement would terminate on August 31, 2014. Plaintiff, Jenny Ann Badeaux, was employed by Agiliti as a laser technician, and her job was to transport the laser to the hospital, set up the laser prior to the procedure, provide technical support to physicians during the procedure, and clean and pack up the laser and transport it back to Agiliti's facility. During her employment with Agiliti, Ms. Badeaux did this for multiple hospitals in her area.
Agiliti was previously named UHS Surgical Services.
After expiration of the term in the Service Agreement, on July 17, 2018, Ms. Badeaux was at STPH to assist with a surgery that required a laser. Prior to the surgery, Ms. Badeaux was walking down the hallway of the operating room, when she slipped and fell and sustained injuries.
Ms. Badeaux filed suit against STPH seeking damages for her injuries. STPH filed an answer and affirmative defense contending that, at all times material to the incident, it was the statutory employer of Ms. Badeaux, and her exclusive remedy was provided for in the Louisiana Workers’ Compensation Act. Thereafter, on December 21, 2020, Ms. Badeaux fax filed a motion for partial summary judgment asking the trial court to declare that STPH was not her statutory employer at the time of the incident. On that same day, STPH filed a motion for summary judgment asserting immunity from Ms. Badeaux's tort claim under the Louisiana Workers’ Compensation Act. Specifically, STPH argued that it enjoys immunity from tort liability as Ms. Badeaux's statutory employer.
STPH's motion for summary judgment and Ms. Badeaux's motion for partial summary judgment came before the court for a hearing on March 10, 2021, and the trial court took the matter under advisement. On April 8, 2021, the trial court issued written reasons for judgment finding STPH was the statutory employer of Ms. Badeaux under the two contract theory in La. R.S. 23:1061, and that Ms. Badeaux was the borrowed employee of STPH. An amended judgment was signed on April 19, 2021, granting STPH's motion for summary judgment, finding that Ms. Badeaux's exclusive remedy against STPH lies not in tort, but under the Louisiana Workers’ Compensation Act, and dismissing the matter with prejudice.
The judgment originally signed by the trial court on April 8, 2021, lacked proper decretal language, and the parties filed a joint motion for new trial asking that the judgment be amended to address the deficiencies in the judgment. The amended judgment was signed on April 19, 2021, and the motion for appeal was from the trial court's April 8, 2021 judgment amended on April 19, 2021.
Ms. Badeaux appealed contending that the trial court erred in finding that STPH met its heightened burden of proving that it was the statutory employer of Ms. Badeaux under the two contract theory and the borrowed employer of Ms. Badeaux. STPH answered the appeal contending that, while the trial court ultimately ruled in its favor, the trial court erred in concluding that STPH "does not qualify as a statutory employer under the written contractual provision theory set forth in La. R.S. 23:1061A(3)."
LAW AND ANALYSIS
SUMMARY JUDGMENT
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Georgia-Pacific Consumer Operations, LLC v. City of Baton Rouge, 2017-1553, 2017-1554 (La. App. 1st Cir. 7/18/18), 255 So.3d 16, 21, writ denied, 2018-1397 (La. 12/3/18), 257 So.3d 194. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3).
If the mover will bear the burden of proof at trial on the issue before the court on the motion, the burden of showing there is no genuine issue of material fact remains with the mover. See La. Code Civ. P. art. 966(D)(1) ; Spears v. Exxon Mobil Corporation and Turner Industries Group, L.L.C., 2019-0309 (La. App. 1st Cir. 12/17/19), 291 So.3d 1087, 1090. When a motion is made and properly supported, an adverse party may not rest on the mere allegations or denials of his pleading; his response, by affidavits or as otherwise provided by law, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. See La. Code Civ. P. art. 967(B).
Thus, when the mover makes a prima facie showing that the motion should be granted, the burden then shifts to the non-moving party to present factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)(1) ; June Medical Services, LLC v. Louisiana Department of Health, 2019-0191 (La. App. 1st Cir. 3/4/20), 302 So. 3d 1161, 1164. If the adverse party fails to do so, there is no genuine issue of material fact and summary judgment will be granted. McCoy v. Manor, 2018-1228 (La. App. 1st Cir. 5/9/19), 277 So. 3d 344, 348.
A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Larson v. XYZ Insurance Company, 2016-0745 (La. 5/3/17), 226 So.3d 412, 416. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765-66 (per curiam); Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751.
Appellate courts review evidence de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Georgia-Pacific Consumer Operations, LLC, 255 So.3d at 22.
STATUTORY EMPLOYER
Under the Louisiana Workers’ Compensation Act, La. R.S. 23:1021, et seq. , an employee injured in an accident while in the course and scope of his employment is generally limited to the recovery of workers’ compensation benefits as his exclusive remedy against his employer and, thus, may not sue his employer in tort. The Act applies both to a direct employer/employee relationship as well as to a statutory employer/employee relationship. Mitchell v. Southern Scrap Recycling, L.L.C., 2011-2201 (La. App. 1st Cir. 6/8/12), 93 So.3d 754, 757, writ denied, 2012-1502 (La. 10/12/12), 99 So.3d 47 ; Labranche v. Fatty's, LLC, 2010-0475 (La. App. 1st Cir. 10/29/10), 48 So.3d 1270, 1272. An employer seeking to avail itself of tort immunity bears the burden of proving its entitlement to immunity. Furthermore, immunity statutes must be strictly construed against the party claiming the immunity. Mitchell, 93 So.3d at 758.
Statutory employer immunity is governed by La. R.S. 23:1061(A), which provides that when a principal undertakes to execute any work that is a part of his trade, business, or occupation and contracts with a contractor for the execution of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, is entitled to "the exclusive remedy protections of R.S. 23:1032." Accordingly, a "statutory employer" within the meaning of the Act is entitled to statutory immunity from tort liability. La. R.S. 23:1061(A)(1) ; Mitchell, 93 So.3d at 757. Louisiana adopted a broad version of the statutory employer doctrine; thus, the Act expressly extends the employer's compensation obligation and its corresponding tort immunity to a "principal," which is also referred to as a "statutory employer." See Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072 (La. 4/9/03), 842 So.2d 373, 378. Louisiana Revised Statute 23:1061 provides two bases for finding statutory employment. Allen, 842 So.2d at 378. The first occurs when the principal is in the middle of two contracts, referred to as the two contract theory. The second occurs when there is a written contract recognizing the principal as the statutory employer. See La. R.S. 23:1061(A)(3) ; Allen, 842 So.2d at 378. Thus, a statutory employer is liable to pay any employee employed in the execution of the work any compensation due under the Act and, in turn, is entitled to statutory immunity. La. R.S. 23:1061(A)(1).
Since STPH is the mover on the motion for summary judgment granted by the trial court, and STPH bears the burden of proving tort immunity, STPH has the burden of showing there is no genuine issue of material fact as to the defense that it is the statutory employer of Ms. Badeaux.
I. A WRITTEN CONTRACT
First, we will address the argument raised by STPH in its answer to the appeal that the trial court erred in concluding that there was no written contract under La. R.S. 23:1061(A)(3) creating a statutory employment relationship in place between Agiliti and STPH. Except under the two contract theory in La. R.S. 23:1061(A)(2), a statutory employer relationship shall not exist between the principal and the contractor's employees unless there is a written contract which recognizes the principal as a statutory employer. See La. R.S. 23:1061(A)(3).
An examination of the evidence presented by STPH and Ms. Badeaux reveals that in 2012, Agiliti entered into a Service Agreement whereby Agiliti "[d]uring the Term" agreed to provide STPH "laser and other surgical instrumentation and equipment ...and such services ... and personnel as the Hospital or its representatives determine is needed on a case by case basis for Hospital patients." Attached to the agreement was "Exhibit A" which provided the pricing for the equipment and services provided by Agiliti to STPH. The Service Agreement provided that "[s]olely for purposes of the Louisiana Workers’ Compensation Act, client and [Agiliti] jointly agree, stipulate and recognize that Client shall be the statutory employer of any and all of [Agiliti's] employees...while any of the above described persons ("Statutory Employees") are performing any work or providing any Services under the agreement." The Service Agreement also provided that "[t]his Agreement shall be effective as of September 01, 2012 (‘the effective date’), and shall terminate as of 5:00 p.m. on August 31, 2014 (the ‘Term’)." The Service Agreement stated that the "Agreement may be amended or changed only by the mutual written consent of the authorized representative of both parties." The Service Agreement provided a broad overview of the relationship between Agiliti and STPH; however, as stated in the agreement, the purchase orders and billing for equipment and services were done on a case by case transactional basis.
STPH acknowledges that the Service Agreement contained a term that had passed by the time Ms. Badeaux fell on July 17, 2018. However, STPH argues that the Service Agreement remained in effect post-term since both parties continued to conduct business in the exact same manner after expiration of the term. In favor of its position, STPH introduced the affidavit of the Assistant Vice President of Surgical Services for STPH, Nancy Ledet, who attested that "[a]fter the Term passed, [Agiliti] and STPH continued to do business as if nothing had changed, with [Agiliti] providing laser services to STPH hundreds of times over the ensuing years." STPH hospital also introduced the deposition of the designated representative of Agiliti, Bradley Jacobson, who agreed that "Agiliti continued to provide same or similar services for the same or similar pricing as called for in the 2012 agreement."
We agree with STPH that although the language in the Service Agreement stated that Agiliti would provide equipment "during the term," the evidence reveals that the parties continued to conduct business in primarily the same manner before and after expiration of the term. However, the Service Agreement clearly and unambiguously states that the agreement shall terminate as of 5:00 p.m. on August 31, 2014. Therefore, at the time of Ms. Badeaux's fall, the Service Agreement had expired, and there was no written contract in effect which recognized STPH as the statutory employer of Ms. Badeaux. See Tilley v. Boise Cascade Corporation, 2009-1072 (La. App. 3rd Cir. 3/10/10), 32 So.3d 1130, 1134, writ denied, 2010-0767 (La. 6/9/10), 38 So.3d 310. Accordingly, we agree with the trial court's conclusion that STPH is not the statutory employer of Ms. Badeaux under the written contract provision in La. R.S. 23:1061(A)(3).
II. TWO CONTRACT THEORY
Since we determined that there was no written contract recognizing STPH as the statutory employer of Ms. Badeaux, we will address Ms. Badeaux's argument that STPH is not her statutory employer under the two contract theory. Louisiana Revised Statute 23:1061(A)(2) provides that "[a] statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee's immediate employer." The two contract theory applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed. Allen, 842 So.2d at 379. The two contract statutory employer status contemplates relationships among at least three entities: a general contractor who has been hired by a third party to perform a specific task; a subcontractor hired by that general contractor; and an employee of the subcontractor. Grant v. Sneed, 49,511 (La. App. 2d Cir. 11/19/14), 155 So.3d 61, 69. The 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. Fee v. Southern Packaging, Inc., 2018-1364 (La. App. 1st Cir. 5/24/19), 277 So.3d 787, 798.
STPH identified the two contracts as the agreement between STPH and its patient to perform a surgical procedure, and the agreement between STPH and Agiliti to provide a laser and laser technician in order to fulfill STPH's contract with the patient.
In support of its contention, STPH attached Ms. Ledet's affidavit wherein Ms. Ledet attested that "STPH entered into an agreement with one of its patients (‘Patient X’)" to perform a "diagnostic laparoscopy, possible laser ablation of endometriosis (the ‘Procedure’)." Attached to Ms. Ledet's affidavit were the STPH Brief Operative Note, which described the procedure including that a laser was used; the patient consent form signed by the patient and the physician performing the surgery; and the billing statement to the patient's insurance company for payment for the surgery.
In her affidavit, Ms. Ledet attested that STPH does not provide C02 laser surgical services so it subcontracts with several entities, including Agiliti to provide these services. She stated that Agiliti and STPH entered into the 2012 Service Agreement whereby Agiliti would supply certain laser surgical services to STPH. Ms. Ledet pointed out that the 2012 Service Agreement contained a term ending on August 31, 2014, but attested that the parties continued to do business as if nothing had changed, and that Agiliti provided laser services to STPH hundreds of times over the ensuing years.
Ms. Ledet attached to her affidavit the purchase order from STPH to Agiliti for a C02 laser rental for the patient's surgery, and the sales invoice from Agiliti to STPH for the laser rental. Ms. Ledet stated that STPH timely paid the invoice provided by Agiliti. She further stated that this was the normal course of dealing between STPH and Agiliti. Ms. Ledet pointed out that Ms. Badeaux was very familiar with STPH, that she had performed approximately 128 procedures at STPH, and that she was "essential to the function of the laser and to completing procedures that require a laser." STPH also introduced the deposition of Ms. Badeaux wherein she stated, "I would roll the equipment in, set it up, and then, when the doctor was ready to laser, turn the machine on." She stated that she was "kind of in charge of the machine" and would stay in the room until the doctor no longer needed her.
The STPH Brief Operative Note, the patient consent form, and the billing statement from STPH to the patient, taken together with the affidavit of Ms. Ledet, establish that STPH entered into a contract with the patient to perform a surgical procedure. The purchase order from STPH to Agiliti for a C02 laser rental for the patient's surgery, and the sales invoice from Agiliti to STPH for the laser rental, considered with the testimony of Ms. Badeaux and the affidavit of Ms. Ledet, establish that STPH contracted with Agiliti to provide the laser and laser technician and provide part of the work necessary in order to perform the surgical procedure for the patient. Accordingly, the two contract theory applies as STPH entered into a contract with the patient for a surgical procedure, pursuant to which work must be performed, and in order for STPH to fulfill its contractual obligation to perform the procedure, STPH entered into a contract with Agiliti to perform part of the work. Therefore, we find STPH met its burden of proving no genuine issue of material fact remains as to the defense that it is the statutory employer of Ms. Badeaux under the two contract theory and entitled to tort immunity. Given this showing, the burden then shifted to Ms. Badeaux to establish that a genuine issue of material fact remained. On the record before us, she has failed to do so.
Since we determined that STPH was the statutory employer of Ms. Badeaux, we did not address the issue of borrowed employer.
CONCLUSION
For the foregoing reasons, the April 19, 2021 judgment of the trial court granting summary judgment in favor of defendant-appellee, St. Tammany Parish Hospital, is affirmed. All costs of the proceedings are assessed to plaintiff-appellant, Jenny Ann Badeaux.
AFFIRMED.
Penzato, J., concurs.