Opinion
NUMBER 2013 CA 1341
03-21-2014
WENDELL McCARROLL, JR. v. PRIME CUT LAWN CARE & TRACTOR WORK, L.L.C., RAYMOND DIAZ, JOHN K. BANKSTON, JR., AND C.N.A. INSURANCE CO.
Donald G. Cave Baton Rouge, LA Counsel for Plaintiff/Appellant, Wendell McCarroll, Jr. Sherman Q. Mack Albany, LA and Sue Buser Andre C. Gaudin Metairie, LA Counsel for Defendants, Prime Cut Lawn Care & Tractor Work L.L.C. and John K. Bankston, Jr. Thomas G. Buck John C. Henry Brett W. Tweedel David B. Parnell, Jr. Metairie, LA Counsel for Defendant/Appellee, First Financial Insurance Company
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-First Judicial District Court
In and for the Parish of Livingston, Louisiana
Docket Number 110391
Honorable M. Douglas Hughes, Judge Presiding
Donald G. Cave
Baton Rouge, LA
Counsel for Plaintiff/Appellant,
Wendell McCarroll, Jr.
Sherman Q. Mack
Albany, LA
and
Sue Buser
Andre C. Gaudin
Metairie, LA
Counsel for Defendants,
Prime Cut Lawn Care & Tractor Work
L.L.C. and John K. Bankston, Jr.
Thomas G. Buck
John C. Henry
Brett W. Tweedel
David B. Parnell, Jr.
Metairie, LA
Counsel for Defendant/Appellee,
First Financial Insurance Company
BEFORE: WHIPPLE, C.J., WELCH AND CRAIN, JJ.
WHIPPLE, C.J.
In this personal injury action, plaintiff appeals a judgment of the trial court, granting the motion for summary judgment of the defendant insurer on the basis that plaintiff was either an employee or an independent contractor engaged in manual labor at the time of his accident and, thus, covered by the Workers' Compensation Act, and dismissing his tort claim against the insurer. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 9, 2006, plaintiff, Wendell McCarroll, Jr., filed a petition for damages that he allegedly sustained in September 2005, while assisting with yard and tree cleanup work following Hurricane Katrina. Plaintiff alleged that he was contracted by John K. Bankston, Jr. ("Bankston") and Bankston's company, Prime Cut Lawn Care & Tractor Work, L.L.C. ("Prime Cut"), to assist in limb removal, trash pick up, and tree and limb cutting, and that he was injured by a falling tree at the home of Raymond Diaz while cutting the tree as instructed by Bankston.
Through his original and amending petitions, plaintiff named as defendants: Prime Cut; Bankston; First Financial Insurance Company ("First Financial"), the alleged commercial general liability insurer of Prime Cut and Bankston; Diaz; and Liberty Mutual Insurance Company ("Liberty Mutual"), Diaz's homeowner's liability insurer. Plaintiff alleged that Diaz's premises were in a dangerous condition due to the large amount of debris and damaged trees on the property and that all of the defendants were negligent and liable for his injuries.
Plaintiff's claims against defendants Diaz and Liberty Mutual were dismissed by summary judgment dated April 9, 2010, on the basis that Diaz owed no duty to plaintiff under the facts and circumstances presented. The judgment was subsequently affirmed by this court. McCarroll v. Prime Cut Lawn Care & Tractor Work, L.L.C., 2010-1638 (La. App. 1st Cir. 3/25/11) (unpublished). Thus, the remaining defendants were Bankston, Prime Cut, and First Financial.
On November 7, 2011, First Financial filed an "Exception of No Cause and No Right of Action or in the alternative, Motion for Summary Judgment." First Financial contended that at the time of his injury, plaintiff was either an employee of Bankston or an independent contractor performing manual labor, see LSA-R.S. 23:1021(7), and, thus, that his claim was in workers' compensation, not tort. See LSA-R.S. 23:1032. Accordingly, First Financial averred, plaintiff had no cause or right of action against Bankston for tort damages.
First Financial additionally asserted that it was entitled to summary judgment holding that the general liability insurance policy it issued to "John K. Bankston d/b/a Prime Cut" provided no coverage for plaintiff's claim and, thus, dismissing plaintiff's claims against it. Specifically, First Financial asserted that the policy it issued to Bankston excluded from coverage "[a]ny obligation of the insured under a worker[s'] compensation...law." Accordingly, First Financial contended that the trial court should either grant the exception of no cause of action or its motion for summary judgment and "dismiss the case."
Following a hearing on the exceptions and motion for summary judgment, the trial court signed a written judgment dated December 29, 2011, granting summary judgment in favor of First Financial and decreeing that plaintiff was either an employee or an independent contractor engaged in manual labor at the time of his accident, and was therefore covered by the Worker's Compensation Act. From that judgment, plaintiff appealed. Subsequently, by a May 22, 2012 amended judgment, rendered in response to this court's rule to show cause order, the trial court, including the same language in the original judgment, further ordered that "[t]here being no just reason for delay, this is a final judgment as to First Financial Insurance Company." Nonetheless, on March 22, 2013, this court dismissed the appeal, as neither the original or amended judgment contained the proper decretal language necessary for final appealable judgments. McCarroll v. Prime Cut Lawn Care & Tractor Work, L.L.C., 2012-0456 (La. App. 1st Cir. 3/22/13)(unpublished).
On remand, the trial court rendered a second amended judgment on May 29, 2013, granting First Financial's motion for summary judgment and dismissing with prejudice plaintiff's claims against it, on the basis that, at the time of his accident, plaintiff was either an employee or an independent contractor engaged in manual labor and, therefore, subject to the Louisiana Workers' Compensation Act. Plaintiff now appeals, contending that the trial court erred in granting summary judgment.
BURDEN OF PROOF AND STANDARD OF REVIEW FOR
SUMMARY JUDGMENT
A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. LSA-C.C.P. art. 966(A)(2).
The mover bears the burden of proving that he is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. LSA-C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial, LSA-C.C.P. art. 967(B).
If, on the other hand, the mover will bear the burden of proof at trial, that party must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So. 2d 764, 766 Such an. affirmative showing will then shift the burden of production to the party opposing the motion, requiring the opposing party either to produce evidentiary materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit requesting additional tone tor discovery. Hines, 876 So. 2d at 766-767.
In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines, 876 So. 2d at 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor, Willis v. Medders, 2000-2507 (La. 12/8/00), 775 So. 2d 1049, 1050.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo ander the same criteria that govern the trial court's determination of whether summary judgment is appropriate. East Tangipahoa Development Company, LLC v. Bedico Junction, LLC, 2008-1262 (La. App. 1st Cir. 12/23/08), 5 So. 3d 238, 243-244, writ denied, 2009-0166 (La. 3/27/09), 5 So. 3d 146,
DISCUSSION
Employees in Louisiana are assured protection from work-related injuries through the Louisiana Workers' Compensation Law, set forth in LSA-R.S. 23:1021 et seq. Pursuant to LSA-R.S; 23:1032, where an injured worker is entitled to workers' compensation benefits, the worker's rights and remedies in workers' compensation are exclusive of ail other rights, remedies, and claims for damages. Furthermore, while independent contractors are generally excluded from the exelusivity-of-remedy provisions of the act, such workers' compensation exclusivity has been extended to include certain independent contractors, i.e., those who perform manual labor for a substantial part of the work time. LSA-R.S. 23:1021(7). Thus, independent contractors who perform, manual labor are also subject to the exclusive remedy provision of the Workers' Compensation Law, and the independent contractor's "employer" is entitled to tort immunity. Fleniken v. Entergy Corp., 2000-1824, 2000-1825 (La. App. 1st Cir. 2/16/01), 780 So. 2d 1175, 1190, writs denied. 2001-1268, 2001-1305, 2001-1317 (La. 6/15/01), 793 So. 2d 1250, 1253-1254.
Subsection (7) of LSA-R.S. 23:1021 provides as-follows:
"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 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. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting, and disconnecting electrical and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter, [Emphasis added.]
Labor is deemed "manual" if the physical elements predominate over the mental elements in performing that labor. Moreover, "substantial part" is liberally construed and is not determined by the use of mathematics. Courtney v. Fletcher Trucking, 2012-0434 (La. App. 1st Cir. 12/21/12), 111 So. 3d 411, 417. It is the substance of the relationship and not the label used which determines whether an independent contractor is entitled exclusively to workers' compensation benefits. Courtney. 111 So. 3d at 417.
If a worker initially pursues a claim in tort, and the employer seeks to avail itself of tort immunity under the Workers' Compensation Law, the employer has the burden of proving entitlement to immunity. O'Regan v. Preferred Enterprises, Inc., 98-1602 (La. 3/17/00), 758 So. 2d 124, 140 n.20. Thus, in seeking to establish that it was entitled to judgment dismissing plaintiff's claims against it, First Financial was required to support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial, establishing that plaintiff's exclusive remedy against its insured, "John K, Bankston, Jr. d/b/a Prime Cut," is workers' compensation such that Bankston and Prime Cut are immune from tort liability herein and, therefore its policy does not provide coverage for plaintiff's injuries.
In support of its motion for summary judgment, First Financial relied upon an excerpt of the First Financial policy, which provides that the policy does not apply to "[a]ny obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law."
Additionally, First Financial submitted excerpts of plaintiff's deposition, wherein plaintiff testified that he had been working for Bankston cutting grass when Hurricane Katrina struck. Thereafter, Bankston told plaintiff that he was "going into a tree removal service" and asked plaintiff "to go to work for him cutting trees." Plaintiff testified that Bankston would bid a job and then "give everybody a little bit of the money," explaining that he would be paid for "helping [Bankston] clean the limbs up, helping him move debris and all this and that." According to plaintiff, the amount of money he was paid depended on how much work needed to be done. However, plaintiff was not aware if the amount Bankston was paying him was a certain percentage of the amount Bankston bid because Bankston "kept it to himself" After agreeing to perform this work, plaintiff worked with Bankston cutting trees in one or two subdivisions before working with him on the job in question on September 22, 2005. On that date, plaintiff was injured when he was struck in the head by a tree he had been cutting.
The Second Circuit Court of Appeal addressed the issue of whether tree removal work was manual labor in Moreno v. Simonton, 33,854 (La. App. 2nd Cir. 12/20/00), 779 So. 2d 887, 889-891, writ denied, 2001-0444 (La. 4/20/01), 790 So. 2d 634. Noting that work constitutes "manual labor" where the "physical" element predominates over the "mental element," the court concluded that the hands-on aspect, combined with the strenuous nature of the work involved in tree removal, convinced it that the plaintiff therein was "clearly engaged in manual labor." Moreno, 779 So. 2d at 890-89L
Similarly, in the instant case, according to plaintiff's own testimony, the work he was performing for Bankston following Hurricane Katrina entailed cutting trees and cleaning up limbs and debris, which was strenuous, physical labor. Indeed, at the time of the accident at issue, plaintiff was in the process of cutting a tree when it "kicked back" and struck him in the head. Moreover, plaintiff did not mention or describe performing any other job duties while working for Bankston, thus indicating that a majority, if not all, of his work time was spent engaging in these physical tasks.
Moreover, according to the deposition excerpts submitted by First Financial, the only work plaintiff testified that he performed for Bankston prior to Hurricane Katrina was cutting grass.
Considering the foregoing, and the record as a whole, the evidence submitted by First Financial established that a substantial part, if not all, of plaintiff's work was spent in manual labor. Thus, even if plaintiff was an independent contractor rather than an employee of Bankston and/or Prime Cut, his remedy for this work-related injury is exclusively in workers' compensation. The First Financial policy specifically excludes coverage for "[a]ny obligation of the insured under a workers' compensation ... law," the policy does not provide coverage for plaintiff's injuries.
While the parties argue about the significance of a statement in this court's previous opinion of McCarroll v. Prime Cut Lawn Care & Tractor Work, L.L.C., 2010-1638 (La. App. 1st Cir. 3/25/11), that "plaintiff was hired by and was working for Bankston" and a reference to Bankston as plaintiff's "employer," we note that the ultimate result would be the same herein whether plaintiff" was an employee of Bankston or an independent contractor engaged in manual labor. Thus, we do not address the contentions of the parties as to the import of those prior statements.
The affirmative showing by First Financial shifted the burden of production to plaintiff, as the party opposing the motion, requiring him either to produce evidentiary materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit requesting additional time for discovery. See Hines, 876 So. 2d at 766-767, Plaintiff did neither.
Accordingly, based on our de novo review, we find no error in the trial court's judgment, granting First Financial's motion for summary judgment and dismissing plaintiff s claims against it.
CONCLUSION
For the above and foregoing reasons, the May 29, 2013 Second Amended Judgment is affirmed. Costs of this appeal are assessed against plaintiff, Wendell McCarroll. Jr.
AFFIRMED.
Moreover, we find no merit to plaintiff's contention that an issue of fact exists as to whether he and Bankston or Prime Cut were engaged in a joint venture or a partnership, such that they were not merely employee and employer whose rights and obligations would be governed by the Workers' Compensation Law. A joint venture has been defined as a special combination of two or more persons where in some specific venture, a profit is jointly sought without any actual partnership or corporate designation. Coffee Bay Investors, L.L.C. v. W.O.G.C. Company, 2003-0406 (La. App. 1st Cir. 4/2/04) 878 So. 2d 665, 670, writ denied, 2004-1084 (La. 6/25/04), 876 So. 2d 838. The essential elements of a joint venture are generally the same as those of partnership, i.e., two or more parties combining their property, labor, skill, etc., in the conduct of a venture for joint profit, with each having some right of control. The requisite criteria for the existence of a joint venture (and a partnership) have been defined as follows: (1) A contract between two or more persons; (2) the establishment of a juridical entity or person; (3) contribution by all parties of either efforts or resources; (4) contribution in determinate proportions; (5) joint effort; (6) a mutual risk vis-a-vis losses; (7) and a sharing of profits. Coffee Bay Investors, L.L.C., 878 So. 2d at 670.
At the outset, we note that plaintiff did not plead in his petitions that he had engaged in a joint venture or partnership with Bankston or Prime Cut. Rather, he alleged that the "undertaking" of performing post-Hurricane Katrina cleanup of the Diaz property "was a joint enterprise of said defendants [Prime Cut and Bankston] for their mutual benefit." (Emphasis added). Plaintiff furthei -averred that he "was contracted by the defendants, Bankston and Prime [Cut] to assist" in the work and claimed that Prime Cut was negligent in "failing to utilize proper training of its contracted workforce." (Emphasis added).
Moreover, plaintiff candidly stated in his deposition that he had gone "to work for [Bankston] cutting grass" before Hurricane Katrina struck and that thereafter Bankston asked plaintiff "to go to work for him cutting trees." (Emphasis added). He further acknowledged that Bankston, not plaintiff, would bid the jobs and would then "give everybody a little bit of the money," Plaintiff admitted that he was unaware of whether Bankston was paying him a certain percentage of the amount Bankston bid on a job because Bankston "kept it to himself." Accordingly, plaintiff's own testimony establishes the absence of several elements necessary for the existence of a joint venture, namely, contribution by all parties of either efforts or resources with their contributions being in determinate proportions, a mutual risk vis-à-vis losses, and a sharing of profits.