Johnson v. Georgia Cas. & Sur. Co.

488 So. 2d 1306, 1986 La. App. LEXIS 5854
CourtLouisiana Court of Appeal
DecidedMay 14, 1986
Docket85-462
StatusPublished
Cited by14 cases

This text of 488 So. 2d 1306 (Johnson v. Georgia Cas. & Sur. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Georgia Cas. & Sur. Co., 488 So. 2d 1306, 1986 La. App. LEXIS 5854 (La. Ct. App. 1986).

Opinion

488 So.2d 1306 (1986)

Elmer and Betty JOHNSON, Plaintiffs-Appellees,
v.
GEORGIA CASUALTY AND SURETY COMPANY, et al., Defendants-Appellants.

No. 85-462.

Court of Appeal of Louisiana, Third Circuit.

May 14, 1986.
Rehearing Denied June 11, 1986.

*1307 Dawkins, Coyle, & Carter, Michael S. Coyle, Ruston, for defendants-appellants.

Humphries and Humphries, G. Earl Humphries, III, Alexandria, for plaintiffs-appellees.

Provosty, Sadler & deLaunay Ronald J. Fiorenza, Alexandria, for intervening-appellee.

Before DOMENGEAUX and YELVERTON, JJ., and JACKSON, J. Pro Tem.[*]

DOMENGEAUX, Judge.

This is an appeal by Dobson Pulpwood, Inc. and its insurer Georgia Casualty and Surety Company (collectively referred to as "Dobson") from a judgment of the district court awarding damages to the plaintiffs-appellees, Elmer and Betty Johnson. Pursuant to La.C.C. Art. 2315, the plaintiffs brought suit for damages for the wrongful death of their 19 year old son; they also sued to recover for the pain and suffering the decedent endured between the accident and the time of his death. The jury awarded each parent $300,000.00 on the wrongful death claims, and $25,000.00 to the parents for their son's survival action. Dobson contests both the propriety of any award and, alternatively, the amount of the award.[1]

*1308 The decedent, James Kevin Johnson, was the only child of Elmer and Betty Johnson who adopted him when he was only a few months old. Young Kevin was afflicted with a club foot which was finally corrected after years of surgery. Kevin completed high school and secured a position as a truck driver for William J. Monroe d/b/a/ Monroe Timber Company (Monroe). Kevin was working in the course and scope of his employment with Monroe when his fatal accident occurred.

Monroe operates a wood yard in Glenmora, Louisiana. Monroe's business involves purchasing timber from landowners, cutting the timber, and hauling it to his wood yard. From the yard wood is shipped to a timber mill. Monroe owns his own equipment, carries his own worker's compensation insurance, and is free to sell his wood to any mill with whom he cares to contract business. At the time of Kevin Johnson's accident, Monroe customarily sold his wood to two mills, one of which was Dobson's chip mill in Campti, La.

Dobson Pulpwood, Inc. produces wood chips for delivery to the Willamette Paper Mill. Dobson secures some of its wood supply from its own wood concentration yards. The workers at these concentration yards are employed by Dobson, and the wood hauled from these yards is transported in vehicles owned by Dobson. Since Dobson is unable to satisfy its own demand for wood, Dobson contracts with independent wood yard owners like Monroe. Dobson pays these independent haulers a fixed price per cord. The price varies between haulers depending on how far the independent has to haul the wood and whether he carries his own worker's compensation insurance. Monroe entered into a verbal agreement with Dobson to deliver wood to the latter's chip mill. For approximately one year prior to Kevin Johnson's death, Monroe had been delivering wood to Dobson at least twice a week. However, Monroe was not bound to deliver any specified amount of wood to Dobson. Further, Monroe was free to, and in fact did, sell wood to other local mills.

Kevin Johnson was employed by Monroe. On February 1, 1983, Kevin delivered a load of wood to Dobson's Campti mill. After parking his truck, Kevin went to the rear of the trailer to unbind the wood. While working at the trailer's chains, a giant "Catapillar" machine used to load wood onto a conveyor deck backed into Kevin, pinning him down and crushing him between the machine and the rear of the trailer. This tremendous blow did not instantly kill Kevin. He was able to walk around the side of his truck, spit out his tobacco, and tell other workers in the area what had happened to him. Employees of the Dobson mill rushed Kevin to the Natchitoches Parish Hospital. En route, Kevin lost consciousness. He died shortly after arrival at the medical facility.

The appellants advanced several arguments concerning the jury's factual determination that Dobson was not the statutory employer of Kevin Johnson. Initially, the appellants complained that the jury committed manifest error in failing to find Dobson Pulpwood, Inc. the statutory employer of Kevin Johnson.

"In the absence of statutory provisions, an employee of a contractor would not be considered to be an employee of the owner or `principal.' However, by statute, such an employee is deemed to be an employee of the principal when the contractor performs work for the principal in the principal's trade, business or occupation. R.S. 23:1061; Johnson v. Alexander, 419 So.2d 451, 454 (La.1982). A principal, for purposes of workers' compensation, is defined by statute as:
`... any person who undertakes to execute any work which is a part of his trade, business or occupation in which *1309 he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.' R.S. 23:1032.
Whenever a person fits the definition of a principal, he shall be obligated by the workers' compensation statute to the injured employees of his contractors. Such a principal is known commonly as a `statutory employer.' See Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978); W. Malone & H. Johnson, Workers' Compensation § 121 (La.Civ.L. Treatise vol. 13 1980)."

Lewis v. Exxon Corp., 441 So.2d 192 (La. 1983).

In order for La.R.S. 23:1061 to be applicable, four essential elements must be present:

"(1) The relationship of principalcontractor (as distinguished from another type of relationship, i.e., vendor-vendee) must exist.
(2) There must be a contract between the principal and contractor for the execution by the contractor of the whole or any part of the work being undertaken by the principal.
(3) The `work' which is the subject of the contract must be part of the principal's trade, business or occupation.
(4) The injured employee must be enaged in the execution of the `work' as described above." (Citations omitted)

Johnson v. Alexander, 406 So.2d 1378 (La. App. 3rd Cir.1981); reversed on other grounds, 419 So.2d 451 (La.1982).

In the present case, a vendor-vendee relationship best describes the interactions between Monroe and Dobson. A principal-contractor relationship necessarily implies that the principal has some degree of control over the actions of his contractor. Dobson exercised no control over Monroe's operations. Dobson did not direct Monroe to cut wood on certain tracts. Neither did it supply equipment or extend loans to Monroe. Dobson paid Monroe by the cord. Monroe (and not Dobson) paid the landowners for their timber. Monroe was not obligated to deliver wood to Dobson; neither was Monroe prohibited from delivering wood to other mills, which in fact Monroe did. In short, Monroe operated a totally independent operation and sold the products of that operation to various mills, including Dobson's.

While it can be assumed that the supply of wood to Dobson was part of the mill's trade, business or occupation (element 3 above), Lewis v. Exxon Corp., supra, we cannot say that Monroe contracted with Dobson to execute the whole or any part of Dobson's work.

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Bluebook (online)
488 So. 2d 1306, 1986 La. App. LEXIS 5854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-georgia-cas-sur-co-lactapp-1986.