Johnson v. Motiva Enterprises LLC

128 So. 3d 483, 13 La.App. 5 Cir. 305, 2013 WL 5850038, 2013 La. App. LEXIS 2196
CourtLouisiana Court of Appeal
DecidedOctober 30, 2013
DocketNo. 13-CA-305
StatusPublished
Cited by20 cases

This text of 128 So. 3d 483 (Johnson v. Motiva Enterprises LLC) 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. Motiva Enterprises LLC, 128 So. 3d 483, 13 La.App. 5 Cir. 305, 2013 WL 5850038, 2013 La. App. LEXIS 2196 (La. Ct. App. 2013).

Opinion

ROBERT M. MURPHY, Judge.

|,.jin this matter, plaintiffs Vincent E. Johnson1 and his three minor children2 seek reversal of the trial court’s judgment that found Motiva Enterprises, L.L.C. (“Motiva”) to be plaintiffs statutory employer, thus limiting his remedy against Motiva and its named employees to workers’ compensation rather than in tort. Plaintiffs further appealed the trial court’s upholding the constitutionality of La. R.S [486]*48623:1061(A)(3), the statutory employer immunity provision as amended in 1997 and the denial of plaintiffs’ request for declaratory judgment. For the reasons that follow, we affirm the trial court’s judgment in its entirety.

FACTS AND PROCEDURAL HISTORY

In 2009, Shell Oil Company as Buyer and AbClean, Inc. as Vendor contracted such that Shell would be entitled to statutory employer status for the tank cleaning work AbClean employees performed in Louisiana. The contract listed Shell and its affiliates including Motiva Enterprises, L.L.C. and included work locations such as the Motiva refinery in Norco, Louisiana.

4Plaintiff Vincent Johnson worked as an environmental cleanup truck driver for United States Industrial Services, Inc. (“USIS”), the successor entity of AbClean following a reorganization on December 31, 2009. On January 16, 2010, Johnson drove a USIS cleanup truck to the Motiva Norco refinery to perform tank cleaning. A few minutes into the removal process, Motiva’s operator appellee/defendant Anastasia Coleman asked plaintiff to disengage the truck’s vacuum line so that she could take a sample. Coleman was soon replaced by Mike Johnson3 before plaintiff had finished his task. The site supervisor, appellee/defendant Corey Ba-zile, instructed plaintiff to recommence pumping. When vapors collected in the area, Bazile allegedly told plaintiff to move the USIS truck. Plaintiff contended that Mike Johnson assured him that the valves were closed. The valves, which had remained open, allegedly sprayed carcinogenic materials, including benzene, onto plaintiff causing damages. Plaintiff alleged that Motiva failed to report the incident and delayed providing him medical attention. Plaintiff was ordered not to return 'to work. He contended that the incident caused multiple polyps in his gall bladder which later had to be removed. He further claimed mental anguish and depression caused by the incident.

Plaintiff received workers’ compensation benefits from AbClean/USIS; on June 10, 2010, he filed a tort claim in the district court against Motiva and individual employees Coleman and Bazile (collectively “appellees”). Defendants Motiva and Coleman filed exceptions of no cause of action and no right of action, claiming Mo-tiva’s statutory employer status and immunity in tort. On November 8, 2010, plaintiff filed a first supplemental and amending petition adding claims of his three minor children and seeking declaratory relief that the statutory provision providing for tort immunity for statutory employers pursuant to a written contract, |fiLa. R.S.23:1061(A)(3)4, is unconstitution[487]*487al as applied here. Plaintiffs claimed that the provision at issue, La. R.S. 23:1061(A)(3)5, violated equal protection, due process, and access to the courts. The defendants reurged their exceptions to the original petition and raised exceptions of no cause of action to the constitutional challenge.

On April 8, 2011 after permitting additional arguments on the exceptions and constitutional issues, the trial court sustained Motiva’s exceptions, finding Motiva to be a statutory employer and thus immune to plaintiffs’ suit in tort; the trial court declined to reach the constitutional issue and dismissed the case. Plaintiffs appealed.

On May 8, 2012, this Court vacated the trial court’s April 19, 2011 judgment in its entirety, found that the trial court should have ruled on the constitutionality of La. R.S. 23:1061(A)(3), and remanded. Johnson v. Motiva Enterprises, L.L.C., |fill-949 (LaApp. 5 Cir. 5/8/12), 95 So.3d 1086. The parties filed supplemental memoran-da; on June 29, 2012, the trial court heard oral argument and took the matter under advisement. On July 23, 2012, the trial court found the 1997 statutory amendment adding statutory employer tort immunity based on contract to the Louisiana Workers’ Compensation Act (“LWCA”) to be constitutional; it denied plaintiffs’ motion for declaratory judgment and granted Motiva’s exceptions of no cause of action and no right of action. The trial court found that defendants were entitled to tort immunity under La. R.S. 23:1032 & 23:1061(A)(3).

ASSIGNMENTS OF ERROR

Appellants assigned the following errors in the trial court’s July 23, 2012 judgment:

1. The trial court erred in not applying the correct legal standard to the evidence presented by the parties on Motiva’s exception of no right of action by not resolving all disputes in favor of Mr. Johnson.
2. The trial court erred in finding that there was a written contract between Motiva and USIS, Mr. Johnson’s employer on the date of the accident, which made Motiva the statutory employer of Mr. Johnson pursuant to La. R.S. 23:1061(A)(3).
[488]*4883. The trial court erred in finding that Motiva is entitled to statutory employer status under the LWCA despite the ambiguities contained in the contract between Shell Oil Company and AbClean, the predecessor of USIS, on which Motiva relies, as to whether AbClearis employees are independent contractors or statutory employees.
4. The trial court erred in not applying the reasoning and holding of Preje-an v. Maintenance Enterprises, Inc., 08-0364 (La.App. 4 Cir. 3/25/09), 8 So.3d 766, to invalidate the provision of the Agreement that purports to confer tort immunity on Motiva.
5. The trial court erred in granting Motiva’s exception of no right of action as to Mr. Johnson’s claims for mental injuries, which Motiva did not demonstrate fell within the scope of the LWCA.
6. The trial court erred in applying the correct legal standard to Motiva’s exception of no cause of action by failing to resolve all doubts in favor of the sufficiency of the petition.
177. The trial court erred in denying Mr. Johnson’s request for declaratory judgment declaring La. R.S. 23:1061(A)(3) of the LWCA to be unconstitutional.
8. The trial court erred in finding La. R.S. 23:1061(A)(3) constitutional in that it arbitrarily and capriciously discriminates among similarly injured employees.
9. The trial court erred finding La. R.S. 23:1061(A)(3) constitutional in that its application to this case allows third parties to divest Mr. Johnson of his vested property interest and access to courts.

STANDARD OF REVIEW

No right' of action. The determination of whether a plaintiff has a right of action is a question of law, which the appellate court reviews de novo. Caro Properties (A), L.L.C. v. City of Gretna, 08-248 (La.App. 5 Cir. 12/16/08), 3 So.3d 29, 31.

No cause of action. The appellate court reviews a trial court’s ruling sustaining an exception of no cause of action de novo

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Bluebook (online)
128 So. 3d 483, 13 La.App. 5 Cir. 305, 2013 WL 5850038, 2013 La. App. LEXIS 2196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-motiva-enterprises-llc-lactapp-2013.