RULING ON PENDING MOTION FOR SUMMARY JUDGMENT
DAWKINS, Senior District Judge.
THE ISSUES
This diversity tort action was commenced as the result of an alleged vehicular accident on U. S. Highway 71 near Alexandria, Louisiana, involving an employee of defendant, Riblet Products of Louisiana, Inc., and plaintiff, Thomas C. Liles, an employee of State Line Escort Service.
• Defendants, Riblet and American Employers Insurance Company, its liability insurer, filed a motion for summary judgment on the ground that Riblet is the “statutory employer” of plaintiff under the Louisiana Workmen’s Compensation Statute, La.R.S. 23:1061; hence, that plaintiff’s exclusive remedy is for workmen’s compensation ánd he may not bring a tort action against them.
Riblet is a corporation organized under the laws of Indiana, authorized to do and doing business in Louisiana, and is engaged in the manufacture, sale, and delivery of mobile home frames in Louisiana, Arkansas and Texas. In connection with its business, Riblet has a plant on Shed Road in Bossier City, Louisiana, where it maintains a fleet of trucks and equipment for delivering frames to purchasers. Its employees are engaged in the manufacture and sale of mobile home frames, and it also employs staff truck drivers and other employees whose duties include despatching, operation, and maintenance of these trucks.
The mobile home frames manufactured and delivered by Riblet all are either twelve or fourteen feet in width. La.R.S. 32:388 authorized the Director of Highways of Louisiana to issue special permits for operation of vehicles carrying oversize loads on the State’s highways. In issuing these permits, the Director is authorized to impose certain conditions, one of which is the requirement for a proper escort, State Police or otherwise. Pursuant to this, Director’s Policy and Procedure Memoranda No. 71, dated January 12, 1970, required that all loads exceeding twelve feet in width be accompanied by a properly equipped escort vehicle. Hence, Riblet on various occasions has engaged the services of several escort companies to provide this service for its vehicles when delivering frames exceeding twelve feet in width, since it does not maintain equipment or drivers of its own to do this.
When the accident here being litigated occurred, Riblet was delivering mobile home frames which were fourteen feet wide. It had entered into a verbal agreement with State Line to provide the required escort. Plaintiff, an employee of State Line, was driving the escort vehicle. He claims that the driver of defendant’s truck ran into the rear of the escort vehicle during the course of delivery of a frame, causing injuries to him.
Pursuant to F.R.Civ.Proc. 56, defendants seek summary judgment, contending that no genuine issue as to any material fact is present and that they are entitled to a judgment of dismissal as a matter of law. Their basic argument is that, since La.R.S. 23:1061
provides
liability for workmen’s compensation only for any injury plaintiff may have sustained in the accident that relief is plaintiff’s exclusive remedy.
The validity of this assertion hinges solely upon determining whether providing an. escort vehicle to facilitate delivery of mobile home frames is a regular, usual, ordinary and integral part of Riblet’s business within the meaning of the statute.
In opposing defendants’ motion, plaintiff first argues that there indeed is a genuine issue as to material fact, based upon an apparent discrepancy between an affidavit signed by Frank E. Deen, Plant Manager of Riblet, and a deposition which he gave subsequently wherein he thoroughly was cross-examined by plaintiff’s counsel. Plaintiff contends that the services provided by State Line were not a part of the “trade, business, or occupation” of Riblet as interpreted by Louisiana jurisprudence.
CONCLUSIONS
Based upon the record presented here, we find there are no such genuine issues of material fact to preclude our granting the motion for summary judgment. Plaintiff’s contention that there is such a genuine issue lies in a purported discrepancy between an affidavit and deposition of Deen.
First, plaintiff claims Deen’s affidavit clearly repudiates his statement that Riblet employs such escort personnel, including the driver of
the truck involved, and, second, this consequently creates an issue which has not been resolved.
It is clear that Riblet neither has the equipment nor the employees necessary to escort delivery of over-size loads.
Third, even if a discrepancy between the affidavit and deposition given by Deen is considered as creating an issue of fact, it still does not create an issue of material fact,
since its resolution one way or the other would not affect the result.
As stated, defendants are entitled to judgment in their favor as a matter of law. La.R.S. 23:1061 provides that any person who “contracts out” work which is part of his trade, business, or occupation is liable to any employee of a contractor engaged in such an enterprise for workmen’s compensation to the same extent as if the contractor’s employee were one of his own employees.
The purpose of this provision in the Compensation Act is to prevent an employer from avoiding his compensation responsibility by interposing independent contractors or subcontractors between himself and his employees. Malone, “Principal’s Liability for Workmen’s Compensation to Employees of Contractor,” 10 La.Law Rev. 25 (1949).
As the
quid pro quo
for subjecting the principal to liability for workmen’s compensation to his subcontractor’s employees, § 1032 of the Act grants the employer immunity from tort liability. Consequently, the crucial issue we must determine is whether the escort service provided here was a part of Riblet’s business within the meaning of the statute, so as to establish workmen’s compensation benefits as the exclusive remedy available to plaintiff against defendants.
We hold that under Louisiana jurisprudence these escort services are an integral, usual, and necessary part of Riblet’s business; hence, that plaintiff’s tort action is proscribed by § 1032.
Since determination
vel non
indeed depends upon whether a contractor’s particular activity is a part of his trade, business, or occupation turns primarily on the facts of each individual case, Foster v. Western Electric Co., 258 So.2d 153, 156 (2nd Cir. La.App.1972), we are not compelled to examine or particularize the varying factual situations presented in the cases cited in plaintiff’s brief. It is sufficient that the test is whether an activity actually is a part of, the business of a principal as enunciated by the Fifth Circuit in Arnold v. Shell Oil Co., 419 F.2d 43 (5th Cir., 1969) after thorough examination of the Louisi
ana jurisprudence.
Free access — add to your briefcase to read the full text and ask questions with AI
RULING ON PENDING MOTION FOR SUMMARY JUDGMENT
DAWKINS, Senior District Judge.
THE ISSUES
This diversity tort action was commenced as the result of an alleged vehicular accident on U. S. Highway 71 near Alexandria, Louisiana, involving an employee of defendant, Riblet Products of Louisiana, Inc., and plaintiff, Thomas C. Liles, an employee of State Line Escort Service.
• Defendants, Riblet and American Employers Insurance Company, its liability insurer, filed a motion for summary judgment on the ground that Riblet is the “statutory employer” of plaintiff under the Louisiana Workmen’s Compensation Statute, La.R.S. 23:1061; hence, that plaintiff’s exclusive remedy is for workmen’s compensation ánd he may not bring a tort action against them.
Riblet is a corporation organized under the laws of Indiana, authorized to do and doing business in Louisiana, and is engaged in the manufacture, sale, and delivery of mobile home frames in Louisiana, Arkansas and Texas. In connection with its business, Riblet has a plant on Shed Road in Bossier City, Louisiana, where it maintains a fleet of trucks and equipment for delivering frames to purchasers. Its employees are engaged in the manufacture and sale of mobile home frames, and it also employs staff truck drivers and other employees whose duties include despatching, operation, and maintenance of these trucks.
The mobile home frames manufactured and delivered by Riblet all are either twelve or fourteen feet in width. La.R.S. 32:388 authorized the Director of Highways of Louisiana to issue special permits for operation of vehicles carrying oversize loads on the State’s highways. In issuing these permits, the Director is authorized to impose certain conditions, one of which is the requirement for a proper escort, State Police or otherwise. Pursuant to this, Director’s Policy and Procedure Memoranda No. 71, dated January 12, 1970, required that all loads exceeding twelve feet in width be accompanied by a properly equipped escort vehicle. Hence, Riblet on various occasions has engaged the services of several escort companies to provide this service for its vehicles when delivering frames exceeding twelve feet in width, since it does not maintain equipment or drivers of its own to do this.
When the accident here being litigated occurred, Riblet was delivering mobile home frames which were fourteen feet wide. It had entered into a verbal agreement with State Line to provide the required escort. Plaintiff, an employee of State Line, was driving the escort vehicle. He claims that the driver of defendant’s truck ran into the rear of the escort vehicle during the course of delivery of a frame, causing injuries to him.
Pursuant to F.R.Civ.Proc. 56, defendants seek summary judgment, contending that no genuine issue as to any material fact is present and that they are entitled to a judgment of dismissal as a matter of law. Their basic argument is that, since La.R.S. 23:1061
provides
liability for workmen’s compensation only for any injury plaintiff may have sustained in the accident that relief is plaintiff’s exclusive remedy.
The validity of this assertion hinges solely upon determining whether providing an. escort vehicle to facilitate delivery of mobile home frames is a regular, usual, ordinary and integral part of Riblet’s business within the meaning of the statute.
In opposing defendants’ motion, plaintiff first argues that there indeed is a genuine issue as to material fact, based upon an apparent discrepancy between an affidavit signed by Frank E. Deen, Plant Manager of Riblet, and a deposition which he gave subsequently wherein he thoroughly was cross-examined by plaintiff’s counsel. Plaintiff contends that the services provided by State Line were not a part of the “trade, business, or occupation” of Riblet as interpreted by Louisiana jurisprudence.
CONCLUSIONS
Based upon the record presented here, we find there are no such genuine issues of material fact to preclude our granting the motion for summary judgment. Plaintiff’s contention that there is such a genuine issue lies in a purported discrepancy between an affidavit and deposition of Deen.
First, plaintiff claims Deen’s affidavit clearly repudiates his statement that Riblet employs such escort personnel, including the driver of
the truck involved, and, second, this consequently creates an issue which has not been resolved.
It is clear that Riblet neither has the equipment nor the employees necessary to escort delivery of over-size loads.
Third, even if a discrepancy between the affidavit and deposition given by Deen is considered as creating an issue of fact, it still does not create an issue of material fact,
since its resolution one way or the other would not affect the result.
As stated, defendants are entitled to judgment in their favor as a matter of law. La.R.S. 23:1061 provides that any person who “contracts out” work which is part of his trade, business, or occupation is liable to any employee of a contractor engaged in such an enterprise for workmen’s compensation to the same extent as if the contractor’s employee were one of his own employees.
The purpose of this provision in the Compensation Act is to prevent an employer from avoiding his compensation responsibility by interposing independent contractors or subcontractors between himself and his employees. Malone, “Principal’s Liability for Workmen’s Compensation to Employees of Contractor,” 10 La.Law Rev. 25 (1949).
As the
quid pro quo
for subjecting the principal to liability for workmen’s compensation to his subcontractor’s employees, § 1032 of the Act grants the employer immunity from tort liability. Consequently, the crucial issue we must determine is whether the escort service provided here was a part of Riblet’s business within the meaning of the statute, so as to establish workmen’s compensation benefits as the exclusive remedy available to plaintiff against defendants.
We hold that under Louisiana jurisprudence these escort services are an integral, usual, and necessary part of Riblet’s business; hence, that plaintiff’s tort action is proscribed by § 1032.
Since determination
vel non
indeed depends upon whether a contractor’s particular activity is a part of his trade, business, or occupation turns primarily on the facts of each individual case, Foster v. Western Electric Co., 258 So.2d 153, 156 (2nd Cir. La.App.1972), we are not compelled to examine or particularize the varying factual situations presented in the cases cited in plaintiff’s brief. It is sufficient that the test is whether an activity actually is a part of, the business of a principal as enunciated by the Fifth Circuit in Arnold v. Shell Oil Co., 419 F.2d 43 (5th Cir., 1969) after thorough examination of the Louisi
ana jurisprudence. The Court there stated:
“We regard
Massey
[Massey v. Rowan Drilling Co., 368 F.2d 92 (5th Cir. 1966)] as correctly stating the Louisiana law, in light of
Thibodaux
[Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852 (1950)] and
Turner
[Turner v. Oliphant Oil Corp., 200 So. 513, (2d Cir. La.App.1940)], that the test for determining whether an activity is part of an employer’s trade or business for purposes of the Louisiana Workmen’s Compensation Statute is whether the particular activity is essential to the business. The fact that the employer or industry as a whole always contracts out the activity is not controlling.”
Id.
419 F.2d at page 50.
Applying the “essential-to-the-business” test,
it is obvious that the unvarying practice of escorting over-size loads was a part of Riblet’s business since it was engaged, not only in manufacturing and selling these frames, but also in delivering them. Therefore, the law of Louisiana, and regulations thereunder require that transportation of frames exceeding 12 feet in width be accompanied by an escort vehicle. As put another way in
Arnold,
419 F.2d at 50, “. . . [t]he test seems rather whether the employer would have to hire some workers of its own to perform the activity if it were not performed by the independent contractor. . . . ”
This precisely was the situation faced by Riblet here. Although Riblet must have obtained a special permit, its invariable practice of employing independent contractors for escort services for its trucks was not work “. . .of such a special or separate character as would not ordinarily or appropriately be performed by the principal employer’s own employees in the prosecution of its business. . . .” Isthmian S. S. Co. v. Olivieri, 202 F.2d 492, 494 (5th Cir. 1953).
Plaintiff argues that there is a dual-pronged test which must be applied in ascertaining which activity is part of the principal’s business: 1) it must be part of the principal’s
regular
or
usual
business and, 2)
essential
to its business. In a sense this assertion is correct . . [s]inee even direct employees must be engaged in work which is a part of the
regular
business of the employer . . .” before liability can attach under the Workmen’s Compensation Act. Malone, “Louisiana Workmen’s Compensation Law and Practice,” § 125, at page 152 (1951). (Emphasis added.) Nevertheless, this does not conflict with the “essential-to-the-business” test of
Arnold
which concerns itself with the
“part-of the principal’s business”
inquiry, and apparently assumes the business to be that usual to the principal.
Moreover, plaintiff’s proposition presents no problem here since there absolutely is no doubt that the business of manufacturing, selling and delivering mobile home frames, for which escort services are an essential and integral part, is Riblet’s usual and regular business.
Plaintiff also attempts to distinguish
Arnold,
and the Louisiana cases upon which it relies, in limiting the “essential-to-the-business” test as dealing only with employers engaged in oil and gas production. His argument is that
the Courts have placed these employers in a special class, and
Arnold
was meant to apply only to oil producers, not to be applied here. We reject this contention as devoid of any merit. There is no indication in the Louisiana Act that it is intended to apply more or less stringently to producers of oil and gas. Further, there is no inkling in
Arnold
that the test there articulated was to be limited to the oil and gas industry. In fact, in formulating the test, the Court relied heavily on its prior decision in Isthmian S. S. Co. v. Olivieri,
supra,
which held that work performed by a watchman under contract with a steamship company was part of that defendant’s shipping business.
See Arnold, supra,
419 F.2d at page 50.
Foster v. Western Electric Co., 258 So.2d 153 (2nd Cir. La.App.1972), illustrates approval not only of
Arnold
by the State Courts but that its rule has not been limited to cases involving oil and gas activities. Relying on Arnold, the Court in
Foster
held that food service to Western Electric’s Shreveport plant was “. . .an essential part of Western Electric’s trade, business or occupation, since without it there would be production, morale and sanitation problems. Further, Western Electric would have to employ workers of its own to perform food service activity if it were not performed by the contractor.”
Id.,
at page 156. It naturally followed there that Foster’s tort action was precluded by § 1032.
The only authority plaintiff cites in support of his position postulates that State and Federal Courts often have found that large scale construction by oil industries of their own structures or equipment through contractors is a part of their business within the meaning of § 1061, even though, as a rule, such construction would not be considered part of the business of other industries.
Although it is obvious that more business activities have been considered part of the business of oil and gas drilling operations, this clearly does not require application of a special test in these situations alone. Rather, it is the result of the extensive scope of such operations with the consequence that application of the “essential-to-the-business” test has resulted in inclusion of a greater variety of these activities in Louisiana within coverage of the Compensation Act.
Plaintiff further urges that the tort action immunity provision of the Compensation Act should not be applied to principals, such as defendant, who are deemed employers merely for purposes of insuring employees of subcontractors a solvent employer. The argument he advances that this was not the true legislative intent in enactment of La.R.S. 23:1061, to prevent injured employees of a contractor from recovering in tort against a negligent principal, is somewhat persuasive.
But this same propo
sition directly was presented to the Louisiana Supreme Court in
Broussard,
where it was rejected by the Court.
Although this determination was criticized by Justice Tate in his concurring opinion as being unnecessary
dicta
and in any event contrary to legislative intent, prompting the “statutory employer” provision of the Act, it is not for us, in a diversity case such as this, to make an independent interpretation of the statute contrary to strong evidence that Louisiana’s Supreme Court would come to a different conclusion, which is to say we are ü/rie-bound.
Louisiana’s jurisprudence is settled that “. . . the compensation statute is to be liberally construed so as to include all services that can reasonably be said to be within the statute not only when the injured person seeks its protection but also when he attempts to have himself excluded from coverage of the Act.” Isthmian S. S. Co. of Delaware v. Olivieri, 202 F.2d 492, at page 494 (5th Cir., 1953); Arnold v. Shell Oil Co., 419 F.2d 43, 47 (5th Cir. 1969); Thibodaux v. Sun Oil Co., 40 So.2d 761, 766 (2d Cir., La.App., 1949), aff’d 218 La. 453, 49 So.2d 852 (4th Cir. La.App. 1971).
If plaintiff were seeking to hold defendants liable here for workmen’s compensation under the provisions of § 1061, it is clear he would succeed, since without the escort service Riblet would be unable to carry on its business of delivering mobile home frames; and, absent subcontractors such as State Line, it would have to hire and train its own employees to provide this service. Under the jurisprudence of Louisiana, the mere fact that defendants are asserting this protection under its Compensation Act in order to obtain immunity from plaintiff’s tort action cannot effect a different result here.
It, therefore, is ordered that the motion for summary judgment by defendants is hereby granted. Plaintiff’s suit is dismissed.
ADDENDUM
Since our opinion herein was rendered on August 30, 1973, we have received a copy of the slip opinion rendered by the United States Court of Appeals for the Fifth Circuit in No. 73-1940, Summary Calendar, Robert Carroll, Plaintiff-Appellant, Security Insurance Company, Intervenor-Plaintiff-Appellant, v. John C. Kilroy and Exxon Corporation, Defendants-Appellees, 483 F.2d 977, dated August 31, 1973, wherein that Court affirmed the District Court’s granting summary judgment in favor of Exxon Corporation.
In our judgment, that decision presents an even stronger reason, under the facts involved therein, for granting summary judgment here.