STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 CA 0035
BRENDON PRESTON
VERSUS
SOUTHERN UNIVERSITY THROUGH THE BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE
Judgment Rendered. OUL 1 3 2021
Appealed from the 19th Judicial District Court Parish of East Baton Rouge, State of Louisiana Trial Court No. 586, 376
The Honorable Trudy M. White, Judge Presiding
James M. Williams Attorneys for Plaintiff/Appellant, Erin B. Rigsby Brendon Preston Metairie, Louisiana
Jeff Landry Attorneys for Defendant/ Appellee,
Attorney General State of Louisiana through the Peter J. Giarrusso Board of Supervisors for Southern Assistant Attorney General University and Agricultural and Baton Rouge, Louisiana Mechanical College and
Wm. David Coffey Amber Mandina Babin Assistant Attorneys General New Orleans, Louisiana
BEFORE: WHIPPLE, C. J., McCLENDON, PENZATO, WOLFE, AND RESTER, JJ.
s - C r 4P WOLFE, J.
Brendon Preston appeals a summary judgment dismissing his tort claims
against the State of Louisiana through the Board of Supervisors for Southern
University and Agricultural and Mechanical College ( Southern), as well as the trial
court' s denial of his motion for new trial. We affirm.
FACTS AND PROCEDURAL HISTORY
On January 13, 2009, Preston was allegedly injured when he fell into a large
hole in the ground on Southern' s campus. Preston was employed by Benbrook
Contracting, LLC ( Benbrook), which was contracted by Southern to perform
debris cleanup following Hurricane Gustay. Preston claimed that as he was
performing his job duties, he stepped aside to allow a cut tree branch to fall, at
which time he fell into the hole. As a result of the accident, Preston sought and
was awarded workers' compensation benefits from Benbrook. In January of 2010,
Preston filed the instant suit against Southern,' seeking damages for his injuries
based in tort.
Southern filed a motion for summary judgment in 2016, urging it was
Preston' s statutory employer and thus immune from tort liability under Louisiana' s
Workers' Compensation Act. See La. R. S. 23: 1032A( 1)( a) and 23: 1061A. After a
hearing, the trial court agreed and orally granted the motion for summary
judgment. A final judgment granting the motion and dismissing Preston' s claims
1 In a prior decision, this court reversed the trial court' s judgment that dismissed the suit for insufficient service of process and remanded the matter to the trial court to allow Preston a reasonable time to cure the defect. See Preston v. Southern University ex rel. Board of Supervisors of Southern University Agricultural and Mechanical College, 2011- 0307 ( La. App. 1st Cir. 9/ 14/ 11) ( unpublished), 2011 WL 4433753, * 2. The defect has since been cured. 2 was signed on May 24, 2019.2 Preston filed a motion for new trial, which the trial
court denied on October 18, 2019. Preston now appeals both the summary
judgment and the denial of his motion for new trial.
DISCUSSION
On appeal Preston urges three assignments of error, contending the trial
court erred in denying his motion for new trial when the summary judgment was
granted before he had an adequate opportunity for discovery; without Southern
proving the work being performed was part of Southern' s trade, business, or
occupation; and where genuine issues of fact remained as to whether his injuries
were caused by Southern' s negligence. Although his assignments of error are
framed as challenging the denial of his motion for new trial, Preston' s arguments
contest the summary judgment, which he has also appealed.'
After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents
show there is no genuine issue of material fact and the mover is entitled to
judgment as a matter of law. La. Code Civ. P. art. 966A( 3). The summary
2 A prior appeal in this matter was dismissed due to procedural defects. See Preston v. Southern University through Board of Supervisors of Southern University Agricultural & Mechanical College, 2018- 0566 ( La. App. 1st Cir. 2/ 19/ 19) ( unpublished), 2019 WL 666248. Following that decision, the judgment before us in this appeal was signed. Although the motion for summary judgment was orally granted by Judge Bruce Bennett, Judge Trudy White' s signing of the judgment in conformity with Judge Bennett' s ruling was within the ambit of the Louisiana Supreme Court' s order appointing Judge Bennett to sit pro tempore for Judge White. See Prejean v. McMillan, 2018- 0919 ( La. App. 1st Cir. 2/ 28/ 19), 274 So. 3d 575, 577 n. 4; see also La. R. S. 13: 4209. Thus, the May 24, 2019 judgment constitutes a valid final judgment over which this court can exercise appellate jurisdiction. See La. Code Civ. P. art. 2083C; Donahue v. Donahue, 2016- 1853 ( La. 11/ 18/ 16), 206 So. 3d 858, 858- 59 ( per curiam).
3 The denial of a motion for new trial is an interlocutory and non -appealable judgment. McKee v. Wal-Mart Stores, Inc., 2006- 1672 ( La. App. 1st Cir. 6/ 8/ 07), 964 So. 2d 1008, 1013, writ denied, 2007- 1655 ( La. 10/ 26/ 07), 966 So. 2d 583. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment. Landry v. Leonard J. Chabert Medical Center, 2002- 1559 ( La. App. 1st Cir. 5/ 14/ 03), 858 So. 2d 454, 461 n.4, writs denied, 2003- 1748, 2003- 1752 ( La. 10/ 17/ 03), 855 So. 2d 761. Thus, the interlocutory denial of a motion for new trial is subject to review on appeal in connection with the review of an appealable judgment in the same case. Moran v. G & G Construction, 2003- 2447 ( La. App. 1 st Cir. 10/ 29/ 04), 897 So. 2d 75, 83 n.4, writ denied, 2004- 2901 ( La. 2/ 25/ 05), 894 So. 2d 1148.
3 judgment procedure is favored and shall be construed to secure the just, speedy,
and inexpensive determination of every action. La. Code Civ. P. art. 966A( 2).
The court may consider only those documents filed in support of or in opposition
to the motion for summary judgment and shall consider any documents to which
no objection is made. La. Code Civ. P. art. 9661)( 2). In determining whether
summary judgment is appropriate, appellate courts review evidence de novo under
the same criteria that governs the trial court' s determination of whether summary
judgment is appropriate. In re Succession of Beard, 2013- 1717 ( La. App. 1st Cir.
6/ 6/ 14), 147 So. 3d 753, 759- 60.
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. 9661)( 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. 96713.
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,
0 Inc., 93- 2512 ( La. 7/ 5/ 94), 639 So. 2d 730, 751. Because the applicable
substantive law determines materiality, whether a particular fact in dispute is
material must be viewed in light of the substantive law applicable to the case.
Bryant v. Premium Food Concepts, Inc., 2016- 0770 ( La. App. 1 st Cir. 4/26/ 17),
220 So. 3d 79, 82, writ denied, 2017- 0873 ( La. 9/ 29/ 17), 227 So. 3d 288.
Under the Louisiana Workers' Compensation Act (" the Act"), an employer
is liable for compensation benefits to an employee who is injured as a result of an
accident arising out of and in the course of employment. La. R. S. 23: 1031.
Generally, the rights and remedies under the Act provide an employee' s exclusive
remedy against the employer for such injury. La. R.S. 23: 1032. 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; Spears, 291 So. 3d at 1091.
Louisiana Revised Statutes 23: 1061A( 1) pertinently provides:
W] hen any " principal" ... undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as a " contractor", for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23: 1032[.]
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).
The Act extends the employer' s compensation obligation and corresponding
tort immunity to a statutory employer, in two instances: ( 1) when a party
undertakes to carry out any work that is a part of its trade, business, or occupation
by means of a contract with another party; or (2) when a party contracts to perform
5 work and sub -lets any portion of the work to another party ( the " two contract"
instance). See La. R. S. 23: 1032A(1)-( 2) and 23: 1061A(1)-( 2); Allen, 842 So. 2d at
378. Except in the two -contract instance, which is not at issue herein, " a statutory
employer relationship shall not exist ... unless there is a written contract between
the principal and a contractor ... which recognizes the principal as a statutory
employer." La. R.S. 23: 1061A( 3). When there is written contractual recognition
of the relationship, " there shall be a rebuttable presumption of a statutory employer
relationship between the principal and the contractor' s employees, whether direct
or statutory employees." La. R.S. 23: 1061A( 3); see also Mitchell v. Southern
Scrap Recycling, L.L.C., 2011- 2201 ( La. App. 1st Cir. 6/ 8/ 12), 93 So. 3d 754,
758, writ denied, 2012- 1502 ( La. 10/ 12/ 12), 99 So. 3d 47. The presumption may be
overcome only by showing the work is not an integral part of or essential to the
ability of the principal to generate its goods, products, or services. La. R.S.
23: 1061A( 3).
An employer seeking to avail itself of tort immunity bears the burden of
proving its entitlement to immunity. Spears, 291 So. 3d at 1092. Further,
immunity statutes are strictly construed against the party claiming immunity.
Mitchell, 93 So. 3d at 758. The ultimate determination of whether a principal is a
statutory employer entitled to immunity is a question of law for the court to decide.
Patterson v. Raceland Equipment Company, LLC, 2017- 0703 ( La. App. 1st
Cir. 4/ 18/ 18), So. 3d ( 2018 WL 1870156, * 3), writ denied, 2018- 1018
La. 10/ 8/ 18), 253 So. 3d 799.
Southern contends that it was Preston' s statutory employer based on its
written contract with Benbrook in the form of a purchase order with addenda.4 The
4 The purchase order specifically provides that the parties agree it shall constitute a contract governed by the laws of the State of Louisiana. Further, La. R.S. 23: 1061A( 3) contains no express requirement concerning the nature of the contract. Spears, 291 So. 3d at 1094.
0 contract obligated Benbrook to provide emergency tree services and remove debris
from Southern' s campus. The contract required that Benbrook obtain and provide
proof of certain insurance coverage, specifically, " Workers' Compensation—
Statutory— in compliance with the Compensation law of the State[.]" ( Emphasis
added.) In connection therewith, the contract mandated that Southern be named as
an additional insured on all liability insurance policies.
A contract must be construed as a whole, with each provision in the contract
interpreted in light of the other provisions. See La. Civ. Code art. 2050. Further, a
contractual provision susceptible of different meanings must be interpreted with a
meaning that renders it effective and not with one that renders it ineffective. La.
Civ. Code art. 2049.
After careful review of the entire contract, which required Benbrook to carry
workers' compensation insurance and name Southern as an additional insured on
all liability policies, we find that the evidence sufficiently establishes a written
contract between Southern and Benbrook that recognizes Southern as the statutory
employer of Benbrook' s employees. This interpretation of the contract gives effect
to all of the contract' s provisions, rendering no terms superfluous.
In his appellate brief, Preston concedes that the contract references a
statutory employer relationship. However, during oral arguments an issue was
raised as to whether a contract must contain a provision expressly recognizing the
statutory employer relationship to comply with La. R.S. 23: 1061A(3), and whether
the contract satisfies that requirement. This issue derives from case law analyzing
the statute that referenced a requirement of an express recognition in the contract.
See, e. g., Willis v. Redfish Renovations, LLC, 2004- 0968 ( La. App. 4th Cir.
12/ 15/ 04), 891 So. 2d 748, 751, writ denied, 2005- 0138 ( La. 4/ 1/ 05), 897 So. 2d
603. To resolve this issue, we turn to well- settled principles of statutory
7 construction, which are expressly applicable to the provisions of the Act. See La.
R.S. 23: 1020. 11)( 2).
Legislation is the solemn expression of legislative will; thus, the
interpretation of legislation is primarily the search for legislative intent. In re
Succession of Boyter, 99- 0761 ( La. 1/ 7/ 00), 756 So. 2d 1122, 1128. The starting
point for interpretation of any statute is the language of the statute itself, as the text
of the law is the best evidence of legislative intent. See La. R. S. 1: 4 and
24: 177B( 1); Rando v. Anco Insulations, Inc., 2008- 1163, 2008- 1169 ( La.
5/ 22/ 09), 16 So. 3d 1065, 1075. When a law is clear and unambiguous and its
application does not lead to absurd consequences, the law must be applied as
written, and no further interpretation may be made in search of the legislative
intent. La. Civ. Code art. 9; La. R.S. 1: 4. Unequivocal provisions are not subject
to judicial construction and should be applied by giving the words their generally
prevailing meaning, with words of art and technical terms accorded their technical
meaning. La. Civ. Code art. 11; La. R.S. 1: 3. It must be presumed that the
legislature intended that every word, sentence, or provision in a statute serve some
useful purpose, that some effect is to be given to each such provision, and that the
legislature employed no unnecessary words or provisions. Courts are bound, if
possible, to give effect to all parts of a statute and to construe no sentence, clause,
or word as meaningless and surplusage if a construction giving force to, and
preserving, all words can legitimately be found. Hartman v. St. Bernard Parish
Fire Department & Fara, 2020- 00693 ( La. 3/ 24/ 21), 315 So. 3d 823, 829.
The plain language of La. R.S. 23: 1061A( 3) requires " a written contract
between the principal and a contractor ... which recognizes the principal as a
statutory employer." ( Emphasis added.) The statute contains no requirement that
the recognition be express. Had the legislature intended to restrict the statutory
n. employer relationship to those instances in which the contract contains an express
provision, it could easily have done so. Although that requirement has been
repeated in several cases, we are mindful that legislation is the solemn expression
of legislative will. La. Civ. Code art. 2. Custom, which results from the repetition
of a practice for a period of time so that the practice is generally accepted as
having acquired the force of law, may not abrogate legislation. La. Civ. Code arts.
2 and 3. More importantly, the Act specifically provides that "[ i] f the workers'
compensation statutes are to be liberalized, broadened, or narrowed, such actions
shall be the exclusive purview of the legislature." La. R.S. 23: 1020. 1D( 3). Thus,
we are not at liberty to read the word " express" into the statute.5 Cf. Allen, 842
So. 2d at 381- 83 ( holding that a temporal element could not be read into La. R.S.
23: 1061- 1062 in relation to the two -contract instance of statutory immunity). For
the reasons previously set forth herein, the contract sufficiently recognizes
Southern as the statutory employer of Benbrook' s employees.
Despite acknowledging that the contract/purchase order contains a statutory
employer provision, Preston suggests the contract is ambiguous because it contains
a clause in which Benbrook agrees to indemnify Southern for injury claims based
5 We recognize that in reviewing contracts to determine whether they comply with La. R.S. 23: 1061, this court has on occasion referenced the requirement of a provision expressly recognizing the statutory employer relationship when reciting the general legal principles applicable to the statutory employer doctrine. See Fleming v. JE Merit Constructors, Inc., 2007- 0926 ( La. App. 1st Cir. 3/ 19/ 08), 985 So. 2d 141, 146 ( explaining that the language of a statutory employer letter evidenced the parties' intent that it serve as an amendment of the original agreement to comply with the statutory requirement of a written contract expressly recognizing the principal as a statutory employer); Ernest v. Petroleum Service Corp., 2002- 2482 ( La. App. 1st Cir. 11/ 19/ 03), 868 So. 2d 96, 99, writ denied, 2003- 3439 ( La. 2/ 20/ 04), 866 So. 2d 830 ( stating initially that the contract did not provide an express statutory employer provision, but later clarifying that nothing in the contract provided that the company was the statutory employer). However, those cases are factually distinguishable from the case sub judice, in that they did not involve a contract that generally, but not expressly, recognized the statutory employer relationship. Thus, those references were not necessary to this court' s rulings in those cases and must be considered purely obiter dicta that is not binding on this court. See Creekstone Juban I, LLC v. XL Insurance America, Inc., 2020- 0098 ( La. App. 1st Cir. 12/ 7/ 20) ( unpublished), 2020 WL 7136881, * 3 n. 4; see also Meaux v. Wendy' s International, Inc., 2010- 2613 ( La. 5/ 13/ 11), 69 So. 3d 412, 413 ( per curiam)( on rehearing).
9 on Benbrook' s negligence but not for injury claims based on Southern' s
negligence. Preston argues Southern is not entitled to tort immunity as his
statutory employer because the statutory employer relationship established by the
contract/purchase order does not relieve Southern of its direct duty to him.
We find no merit to Preston' s argument, which we note is presented without
specific legal support. The contractual provision on which Preston relies concerns
the indemnity rights between Benbrook and Southern and are independent of the
contractual provisions that recognize Southern' s status as statutory employer. See
Mitchell, 93 So. 3d at 760; see also La. R.S. 23: 1061B; 23: 1063; Westgate, LLC
v. Eaton Corp., 2012- 1098 ( La. App. 1st Cir. 2/ 15/ 13), 113 So. 3d 238, 241- 43;
Reliance Ins. Co. v. Barnard & Burk, Inc., 428 So. 2d 1097, 1103 ( La. App. 1st
Cir.), writ denied, 433 So. 2d 154 ( La. 1983).
Given the existence of a written contract as required by La. R. S.
23: 1061A( 3), Southern is presumed to be Preston' s statutory employer. See
Spears, 291 So. 3d at 1095; Mitchell, 93 So. 3d at 760. On the motion for
summary judgment, Preston then had the burden of rebutting the presumption by
demonstrating that the work he was performing at the time he was injured was not
part of Southern' s trade, business, or occupation.6 See La. Code Civ. P. art.
966D( 1); Spears, 291 So. 3d at 1094- 95; Patterson, So. 3d at ; Mitchell, 93
So. 3d at 760.
Under La. R.S. 23 :1061 A( 1), " work shall be considered part of the
principal' s trade, business, or occupation if it is an integral part of or essential to
the ability of the principal to generate that individual principal' s goods, products,
or services." The contract Southern submitted in support of its motion for
6 Preston' s argument on appeal that the burden of proof on this issue was incorrectly placed on him is legally incorrect and his reliance on jurisprudence analyzing prior versions of the statute is misplaced. See La. R. S. 23: 1061A( 3); Spears, 291 So. 3d at 1096 n. l ( stating the presumption of statutory employment is sufficient to shift the burden of proof to the employee).
10 summary judgment establishes Benbrook was engaged to perform emergency tree
debris removal from Southern' s campus, using heavy equipment and ground labor,
with Southern to be treated in higher importance to ensure dedicated and early completion. The agreed price for Benbrook' s services was $ 65, 000. 00.
Maintenance and repair work, which by their very nature allow the smooth and
continued operation of the principal' s business, have been recognized as essential
to the principal' s ability to provide its services.' See Solomon v. United Parcel
Service, Inc., 539 So. 2d 715, 716- 17 ( La. App. 3rd Cir.), writ denied, 541 So. 2d
839 ( La. 1989). Maintaining its campus is integral to Southern' s ability to provide
its services; therefore, Preston was performing work that was part of Southern' s
business at the time he was injured. Compare Jackson v. St. Paul Ins. Co., 2004-
0026 ( La. App. 1st Cir. 12/ 17/ 04), 897 So. 2d 684, 689, writ denied, 2005- 0156
La. 3/ 24/ 05), 896 So.2d 1042; Lopez v. US Sprint Communications Co., 2007-
0052 ( La. App. 4th Cir. 12/ 5/ 07), 973 So. 2d 819, 826- 27.
On appeal, Preston argues, as he did to the trial court, that Southern is a
historically black university that provides student focused teaching and learning
environments that creates global leadership opportunities for a diverse student
population. Preston contends that "[ n] owhere, in the mission found on
Southern' s] website is it mentioned that ... cleanup or debris removal is a regular
part] of [ Southern' s] business." However, the record contains no evidence
submitted by Preston to support his claims or sustain his burden of proof.' Absent
any such evidence, Preston failed to establish the existence of a genuine issue of
The cases relied on by Preston are factually distinguishable. 8 Preston' s opposition to Southern' s motion for summary judgment is not contained in the appellate record. As the appellant, Preston is responsible for the completeness of the record for appellate review and the inadequacy of the appellate record is imputable to him. See Moore v.
Murphy Oil USA, Inc., 2015- 0096 ( La. App. 1st Cir. 12/ 23/ 15), 186 So. 3d 135, 143, writ denied, 2016- 00444 ( La. 5/ 20/ 16), 191 So. 3d 1066. We note, however, that although the record indicates Preston filed an opposition, Preston has not disputed Southern' s argument that his opposition consisted of only argument, with no supporting evidence offered.
11 material fact and failed to rebut the presumption that Southern was his statutory employer. See La. Code Civ. P. art. 967B; Fleming, 985 So. 2d at 148.
As the statutory employer, Southern is entitled to tort immunity. Thus, any
issues of fact regarding Southern' s negligence, which Preston alleges are
unresolved, are immaterial for purposes of the motion for summary judgment.
Likewise, we find no merit to Preston' s argument that summary judgment was
granted before he had the opportunity to conduct adequate discovery regarding
Southern' s " legal duty to [ him] and [ Southern' s] level of certainty that injury
would result from their actions or lack thereof." We further note that there is no
absolute right to delay action on a motion for summary judgment until discovery is
complete; rather, the requirement is only that the parties have a fair opportunity to
carry out discovery and to present their claim. Murphy v. MKS Plastics, L.L.C.,
2019- 1485 ( La. App. 1st Cir. 9/ 21/ 20), 314 So. 3d 65, 70, writ denied, 2020- 01225
La. 12/ 22/ 20), 307 So. 3d 1041. Preston has not shown that the trial court abused
its discretion in granting the summary judgment that Southern filed more than six
years after this suit was filed.
For the foregoing reasons, we find that Southern' s motion for summary
judgment was properly granted. For the same reasons, we find no merit to
Preston' s contentions that the trial court erred in denying his motion for new trial.
CONCLUSION
We affirm the trial court' s May 24, 2019 judgment granting summary
judgment and dismissing Preston' s claims against Southern, as well as the trial
court' s October 18, 2019 judgment denying Preston' s motion for new trial. Costs
of this appeal are assessed to the plaintiff/appellant, Brendon Preston.
AFFIRMED.
12 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2020 CA 0035
SOUTHERN UNIVERSITY THROUGH THE BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AGRICULTURAL AND MECHANCIAL COLLEGE
P PENZATO, J., dissenting. Ir1 I respectfully dissent from the majority opinion affirming the summary
judgment in favor of Southern. In determining whether summary judgment is
appropriate, appellate courts review evidence de novo under the same criteria that
govern the trial court' s determination of whether summary judgment is
appropriate. Reynolds v. Bordelon, 2014- 2371 ( La. 6/ 30/ 15), 172 So. 3d 607, 610.
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. Marks v. Schultz, 2020- 0197 ( La. App. 1st Cir. 12/ 10/ 20),
316 So. 3d 534, 538.
In this case the substantive law is based on interpretation of a contract. The
pertinent issue is whether Southern carried its burden of proof as the mover for
summary judgment that the contract between it and Benbrook establishes that a 1 statutory employer relationship exists pursuant to La. R.S. 23: 1061( A)(3). An
The majority notes in its opinion that Preston " concedes" in his appellate brief that the contract references a statutory employer relationship. A judicial confession is a declaration made by a party in a judicial proceeding and constitutes full proof against the party who made it. La. C.C. art. 1853. A declaration that expressly acknowledges an adverse fact and is made by a party in a judicial proceeding is a judicial confession. Cola v. Cola, 2019- 0530 ( La. App. 1st Cir. 12/ 27/ 19), 294 So. 3d 6, 11, writ denied, 2020- 00344 ( La. 6/ 3/ 20), 296 So. 3d 1068. An admission made by a party in a pleading constitutes a judicial confession, which has the effect of waiving evidence as to the subject of the admission. C. T. Traina, Inc. v. Sunshine Plaza, Inc., 2003- 1003 ( La. 12/ 3/ 03), 861 So. 2d 156, 159. However, the pleadings allowed in civil actions are petitions, exceptions, written motions, and answers. La. C. C. P. art. 852. Memorandums, oppositions, or briefs do not constitute pleadings. See Meaux v. Galtier, 2007- 2474 ( La. 1/ 25/ 08), 972 So. 2d 1137, 1138. Furthermore, the argument of counsel and briefs, no matter employer seeking to avail itself of tort immunity bears the burden of proving its entitlement to immunity. Spears v. Exxon Mobil Corp. & Turner Industries
Group, L.L.C., 2019- 0309 ( La. App. 1st Cir. 12/ 17/ 19), 291 So. 3d 1087, 1092.
Except in the two -contract situation set forth in La. R.S. 23: 1061( A)(2), which is
not present in the instant case, " a statutory employer relationship shall not exist ...
unless there is a written contract between the principal and a contractor ..., which
recognizes the principal as a statutory employer." La. R. S. 23: 1061( A)(3)
emphasis added). The majority determines that the contract between Benbrook
and Southern sufficiently satisfies the requirement of La. R.S. 23: 1061( A)(3) that
the contract " recognizes the principal as a statutory employer." I disagree.
Contract Does Not Satisfy the Requirements of La. R.S. 23: 1061( A)(3)
The sole reference in the contract to the word " Statutory" and the language
relied upon by the majority is an insurance provision that required Benbrook to
provide " Workers' Compensation— Statutory— in compliance with the
Compensation law of the State[.]" I find that this contract language does not
recognize the statutory employer relationship as required by La. R.S.
23: 1061( A)(3). The majority fails to apply the jurisprudence interpreting La. R.S.
23: 1061( A)(3), including that of this circuit, requiring an express recognition of a
statutory employer relationship in the contract. Because the workers'
compensation statutes are in derogation of the universal right to sue for damages
provided by La. C. C. art. 2315, the immunity provisions must be strictly construed.
Smith v. Brown, 2011- 1749 ( La. App. 1st Cir. 8/ 15/ 12), 97 So. 3d 1186, 1191, writ
denied, 2012- 2015 ( La. 11/ 16/ 12), 102 So. 3d 39. I am of the opinion that since
the immunity provisions are to be strictly construed, the " recognition" of a
how artful, are not evidence. Seale & Ross, P.L.C. v. Holder, 2019- 1487 ( La. App. 1st Cir. 8/ 3/ 20), 310 So. 3d 195, 204. Therefore, the statement made by Preston in his brief does not constitute a judicial admission. Regardless, the determination of whether the contract satisfied the requirement of La. R. S. 23: 1061( A)(3) is a question of law for the court to decide. See
Johnson v. Odom, 536 So. 2d 541, 548 n.4 ( La. App. 1 st Cir. 1988), writ denied, 537 So. 2d 313 La. 1989).
4 statutory employer relationship should only be found when expressly stated, as has
been set forth in the jurisprudence of this court and other courts in Louisiana.
Numerous cases require that recognition of a statutory employer relationship in a written contract be express. In Ernest v. Petroleum Service Corp., 2002- 2482 La. App. 1st Cir. 11/ 19/ 03), 868 So. 2d 96, 99, writ denied, 2003- 3439 ( La.
2/ 20/ 04), 866 So. 2d 830, this court specifically noted that the contract in effect
between the parties at the time of the accident " did not provide an express
provision stating that [ the principal] was the statutory employer of [ the
contractor' s] employees." Therefore, there was no statutory employer relationship
between the principal and an employee of the contractor. Ernest, 868 So. 2d at 99.
The majority attempts to distinguish Ernest by indicating that this court clarified
the above statement, but it actually reinforced that " nothing in the contract
provided that [ the principal] was the statutory employer of [ the contractor' s]
employees." Ernest, 868 So. 2d at 99. Thus, there was no statutory employer
relationship without such express provision.
This court also held that no statutory employer relationship existed when
nothing in a commercial lease served to establish such relationship. Labranche v.
Fatty' s, LLC, 2010- 0475 ( La. App. 1st Cir. 10/ 29/ 10), 48 So. 3d 1270, 1274.
Furthermore, other courts have consistently found no statutory employer
relationship when the contract at issue did not contain an express provision
recognizing such relationship. The court in Willis v. Redfish Renovations, LLC,
2004- 0968 ( La. App. 4th Cir. 12/ 15/ 04), 891 So. 2d 748, 751, writ denied, 2005-
0138 ( La. 4/ 1/ 05), 897 So. 2d 603, explicitly held:
In the present case, the record reflects that the contract between [ the principal] and [ the contractor] does not provide an express provision stating that [ the principal] was statutory employer of [ the a
contractor' s] employees. Since the contract between [ the principal] and [ the contractor]fails to include the necessary provision, [ the principal] does not satisfy the criteria for a statutory employer pursuant to La. R. S. 23: 1061( A)(3).
3 In DeClues v. Carubba Engineering, Inc., 2006- 1336 ( La. App. 4th Cir. 3/ 28/ 07),
955 So. 2d 711, 714, writ denied, 2007- 0839 ( La. 6/ 15/ 07), 958 So. 2d 1192, the
court held that because there was no language in the contract describing the defendant as the " statutory employer," no statutory employer relationship existed.
Ritter v. Exxon Mobile Corp., 2008- 1404 ( La. App. 4th Cir. 9/ 9/ 09), 20 So. 3d 540,
545, held that no statutory relationship existed where the pertinent contract did not
contain a statutory employer provision, which Exxon attempted to cure by
amendment to the contract dated three days after the accident at issue. Dugan v.
Waste Management, Inc., 45, 407 ( La. App. 2nd Cir. 6/ 23/ 10), 41 So. 3d 1263,
1267, determined that no statutory employer relationship existed pursuant to La.
R.S. 23: 1061( A)(3) where the written contract did not recognize the employees of
the contractor as the statutory employees of the principal.
The majority does not address any of the above cases, with the exception of
Ernest, which it attempts to distinguish along with Fleming v. JE Merit
Constructors, Inc., 2007- 0926 ( La. App. 1st Cir. 3/ 19/ 08), 985 So. 2d 141, 146
which did contain an express recognition of the statutory employer relationship),
by claiming that those cases involved an express recognition of the statutory
employer relationship, rather than a general recognition. However, the majority
cites to no case which recognized a statutory employer relationship " generally"
rather than " expressly."
Additionally, numerous first circuit cases have found the existence of a
statutory employer relationship and have applied the " trade, business, and
occupation" defense to defendants who have entered into contractual agreements
where there was explicit language recognizing the defendant as a statutory
employer. See King v. Debusk Services Group, L.L.C., 2017- 1577 ( La. App. 1st
Cir. 9/ 4/ 19), 2019 WL 4201475, at * 4 ( unpublished) ( contract stated principal shall
El be considered the statutory employer of contractor' s employees, agents, or
subcontractors); Patterson v. Raceland Equipment Company, LLC, 2017- 0703 ( La.
App. 1st Cir. 4/ 18/ 18), So. 3d, 2018 WL 1870156, at * 3, writ denied,
2018- 1018 ( La. 10/ 8/ 18), 253 So. 3d 799 ( agreement provided that the parties
recognized defendant as the statutory employer of contractor' s employees);
Kazerooni v. Monster Rentals, L.L. C., 2015- 0276 ( La. App. 1st Cir. 11/ 6/ 15), 2015
WL 6841913, at * 3 ( unpublished) ( master service agreement explicitly recognized
the statutory employer relationship); Mitchell v. Southern Scrap Recycling, L.L.C.,
2011- 2201 ( La. App. 1st Cir. 6/ 8/ 12), 93 So. 3d 754, 758, writ denied, 2012- 1502
La. 10/ 12/ 12), 99 So. 3d 47 ( contractual language " shall be considered the ...
statutory employer'..." clearly recognized the defendant' s status as statutory
employer); Burkstaller v. Surgical Synergies, Inc., 2011- 1211 ( La. App. 1st Cir.
2/ 10/ 12), 2012 WL 602075, at * 2 ( unpublished) ( principal submitted summary
judgment evidence of written agreement expressly recognizing the statutory
employer relationship between principal and contractor, and thus, rebuttable
presumption of statutory employer relationship existed); Fleming, 985 So. 2d at
146- 47 ( finding amendment to a contract satisfied the necessary written contract
and was made in order " to comply with the amended statute requiring a written
contract expressly recognizing [ defendant] as a statutory employer"); Everett v.
Rubicon, Inc., 2004- 1988 ( La. App. 1st Cir. 6/ 14/ 06), 938 So. 2d 1032, 1042, writ
denied, 2006- 1785 ( La. 10/ 13/ 06), 939 So. 2d 369 ( finding the defendant entitled
to immunity because the contract explicitly recognized the defendant as the
contractor' s statutory employer); and Jackson v. St. Paul Insurance Co., 2004-
0026 ( La. App. 1st Cir. 12/ 17/ 04), 897 So. 2d 684, 689 ( finding that La. R.S.
23: 1061( A)(3) applied because the contract between the defendant and the general
contractor explicitly recognized the defendant as a statutory employer).
5 The other Louisiana appellate courts have explicit similarly required
language. See Louque v. Scott Equipment Co., LLC, 2016- 507 ( La. App. 5th Cir.
2/ 8/ 17), 212 So. 3d 1203, 1209- 10, writ denied, 2017- 00372 ( La. 4/ 13/ 17), 218 So.
3d 629 ( provision that stated buyer shall be considered the statutory employer of employees, agents, and subcontractors of contractor was sufficient once party
submitted evidence it was a buyer); Garcia v. Lewis, 50, 744 ( La. App. 2nd Cir.
6/ 22/ 16), 197 So. 3d 738, 742, writ denied, 2016- 1382 ( La. 11/ 7/ 16), 205 So. 3d
891 ( agreement expressly stated that the principal shall be deemed the statutory
employer of each and every employee of the contractor); and Ramos v. Tulane
University ofLouisiana, 2006- 0487 ( La. App. 4th Cir. 1/ 31/ 07), 951 So. 2d 1267,
1269 ( contract explicitly recognized principal as the statutory employer of
contractor' s employees and subcontractors).
The majority relies on the following cases to support the presumption of
statutory employment: Spears, Patterson, and Mitchell. However, these cases all
included language containing an express recognition of a statutory employer
relationship. Spears held that for the statutory presumption to apply, the principal
must prove the existence of a written contract containing the necessary
declaration of its statutory employment status." Spears, 291 So. 3d at 1092
emphasis added). This court determined that an excerpt of the contract
contain[ ed] a section expressly recognizing" the principal as the statutory
employer. Spears, 291 So. 3d at 1092 ( emphasis added). In Patterson, the
contract language contained the words "[ t] he parties recognize [ principal] as the
statutory employer of Contractor' s employees[.]" Patterson, So. 3d at ,
2018 WL 1870156, at * 3. The contract language at issue in Mitchell stated that it
was the intent of the parties that the principal was the statutory employer of the
contractor' s employees, which this court held clearly recognized the statutory
employer relationship. Mitchell, 93 So. 3d at 758. No such language is present in
Co the contract in the instant case. Consequently, I do not find that the contract at
issue satisfies the requirement of La. R.S. 23: 1061( A)(3).
Contract Interpretation
Moreover, I find that the use of the singular word " Statutory" mandating
that Benbrook maintain workers' compensation insurance according to the statutes
and laws of this state is not a recognition of a statutory employment relationship that fulfills the requirement of La. R.S. 23: 1061( A)(3). " Statutory" is an adjective
defined by Black' s Law Dictionary ( 1 lth ed. 2019) as " Of, relating to, or involving
legislation." There are numerous examples of " statutory" referring to different
legal principles, such as statutory liability, statutory indemnity, a statutory period, a
statutory action, a statutory duty, or statutory damages. Not all uses of the word
statutory" apply to a " statutory employer."
To determine the meaning of words used in a contract, a court should give
them their " generally prevailing meaning." La. C. C. art. 2047; Boh Bros.
Construction Co., L.L. C. v. State ex rel. Department of Transportation &
Development, 2008- 1793 ( La. App. 1st Cir. 3/ 27/ 09), 9 So. 3d 982, 985.
Furthermore, if a word is susceptible of different meanings, it "must be interpreted
as having the meaning that best conforms to the object of the contract." La. C. C.
art. 2048; McCary v. Oceaneering International, Inc., 2017- 1163 ( La. App. 1 st Cir.
2/ 27/ 18), 243 So. 3d 613, 616. The provision requiring Benbrook to maintain
workers' compensation insurance also contains clauses requiring Benbrook to
maintain commercial general liability insurance and automobile liability insurance
with minimum liability limits of $ 1, 000, 000. 00. Although the workers'
compensation clause does not contain a specific liability limit, I find that it is a
reference to La. R.S. 23: 1168, which requires an employer to secure workers'
compensation for its employees by one of several options, such as self-insurance or
by obtaining workers' compensation insurance from an entity authorized to
7 transact the business of workers' compensation insurance in Louisiana. Therefore,
the provision at issue is an insurance provision, not an employment provision, as
the word " Statutory" in the insurance requirement refers to Benbrook' s complying with the statutory requirements for workers' compensation insurance for the State
of Louisiana for its employees.
The majority relies on La. C. C. art. 2049, which states that "[ a] provision [ of
a contract] susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective." However, the
interpretation that the word " Statutory" in the contract refers to insurance
requirements, rather than the employment relationship, does not render the
meaning ineffective. Instead, such interpretation gives meaning in " light of the
other provisions so that each is given the meaning suggested by the contract as a
whole." La. C. C. art. 2050. Given the fact that the provision relied upon by the
majority is contained in the insurance provisions mandating commercial general
liability insurance and automobile liability insurance, interpreting the contract as a
whole, the clause containing the word " Statutory" refers to Southern' s requirement
that Benbrook provide workers' compensation insurance. Such interpretation
renders no terms superfluous. Furthermore, the contract does not mention a
statutory employer relationship between Benbrook and Southern whatsoever.
Therefore, I disagree that the manner in which the parties used the word
Statutory" in the contract conveys a statutory employer relationship.
As I am of the opinion that the contract herein did not recognize a statutory
employer relationship, I do not find that Southern carried its burden of proof on the
motion for summary judgment. Therefore, no rebuttable presumption arose and
the burden should not have shifted to Preston to demonstrate the work he was
performing at the time was " not an integral part of or essential to the ability of the
principal to generate that individual' s goods, products, or services." La. R. S.
E 23: 1061( A)(3); Patterson, So. 3d at , 2018 WL 1870156, at * 3. I
respectfully dissent and would reverse the trial court' s grant of summary judgment and dismissal of Preston' s claims.
M