Miller v. Atlantic Richfield Co.

499 So. 2d 1095, 1986 La. App. LEXIS 7809
CourtLouisiana Court of Appeal
DecidedOctober 8, 1986
Docket85-1078
StatusPublished
Cited by9 cases

This text of 499 So. 2d 1095 (Miller v. Atlantic Richfield 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
Miller v. Atlantic Richfield Co., 499 So. 2d 1095, 1986 La. App. LEXIS 7809 (La. Ct. App. 1986).

Opinion

499 So.2d 1095 (1986)

Layton N. MILLER, et al., Plaintiffs-Appellees,
v.
ATLANTIC RICHFIELD COMPANY, et al., Defendants-Appellants.

No. 85-1078.

Court of Appeal of Louisiana, Third Circuit.

October 8, 1986.
Writ Denied December 5, 1986.

*1096 Scofield, Bergstedt, Gerard, Mount & Veron, P.C., J. Michael Veron, Lake Charles, for defendant-appellant.

Jones, Jones & Alexander, J.B. Jones, Jr., for appellant.

Cameron, Davidson, Meaux, Sonnier & McElligott, J.J. Davidson, III, Lafayette, for defendant-appellee.

Before DOMENGEAUX, GUIDRY and YELVERTON, JJ.

YELVERTON, Judge.

Layton Miller and his wife and children filed suit against Atlantic Richfield Company, Arco Oil and Gas Corporation, and their insurer, Insurance Company of North America, along with Power Rig Drilling Company (Power Rig), alleging that Miller was injured due to the negligence of defendants' employees. From a jury verdict finding Arco 75 percent at fault and Power Rig 25 percent at fault and awarding Layton Miller $363,450 for damages and his wife $3,000 for loss of consortium, the defendants have appealed. We affirm.

FACTS

On June 16, 1984, the plaintiff, Layton Miller, was injured at a Cameron Parish oil rig owned by Arco. Power Rig was under a contract with Arco to drill and work the well which Arco subsequently decided to plug and abandon. The plug and abandon procedure required the cutting of the wellhead assembly from the casing, the removal of the assembly, and the welding of a sheet of metal over the open casing at a certain depth. The procedure required the services of a welder. Arco and Power Rig did not employ welders, but contracted for their services. Arco in the present case contracted with Oil Patch Welders for the services of Layton Miller as needed. Miller with his two sons owned the business of Oil Patch Welders.

To cut the wellhead assembly from the casing Miller was required to go down in an area called the "cellar", a six-foot-square hole lined with boards. After the *1097 cut Miller got out of the cellar and a cable was attached to the wellhead assembly and to an air hoist. Mark Derouen, Arco's drilling engineer, instructed the air hoist operator to lift the wellhead assembly. The attempt was unsuccessful, so the cable had to be slacked to allow the plaintiff to safely return to the cellar. Miller made additional cuts and again got out of the cellar. After another unsuccessful attempt to lift the assembly, the line was slacked and the plaintiff once more returned to the cellar with a sledgehammer to knock the assembly loose from the casing. While plaintiff was in the cellar this time, Derouen gave a hand signal to the air hoist operator to lift the assembly. At this point the wellhead popped loose injuring Miller.

Plaintiffs filed suit in tort against the defendants. The case was tried by a jury. At the close of plaintiffs' case Arco moved for a directed verdict urging that the evidence showed Layton Miller was an employee of Arco at the time of the accident and that his exclusive remedy was for worker's compensation benefits. The motion was denied. The defendants objected to the testimony of Miller's expert on economics, but that objection was overruled. They then moved for a directed verdict to exclude the claim for loss of future earnings. That motion was likewise denied.

The jury returned a verdict for plaintiffs finding Arco 75 percent at fault in causing the accident and Power Rig 25 percent at fault. It awarded plaintiff $8,450 in medical expenses, $10,000 for pain and suffering, $20,000 for past lost earnings, and $325,000 for future lost earnings. The jury also awarded Mrs. Miller $3,000 for loss of consortium.

Arco and Power Rig appealed the judgment entered pursuant to the jury verdict.

The issues raised on appeal are as follows:

1) Whether the trial court erred in denying Arco's motion for a directed verdict as to plaintiff's suit in tort;

2) Whether the trial court erred in allowing the testimony of Donald Cornwell, the plaintiffs' expert on economics, and whether the trial court erred in denying defendants' motion for a directed verdict to exclude Layton Miller's claim for loss of future earnings;

3) Whether the jury's verdict regarding plaintiff's loss of future earnings was supported by the evidence;

4) Whether the trial court erred by allowing Arco's insurance policy to be shown to the jury;

5) Whether the evidence supported an award to Mrs. Miller for loss of consortium.

THE STATUTORY EMPLOYMENT DEFENSE

Arco, relying on Vizena v. Travelers Ins. Co., 238 So.2d 238 (La.App. 3rd Cir.1970), writ denied 239 So.2d 542 (La.1970), argues that under the provisions of R.S. 23:1021(6) of the Worker's Compensation Act Layton Miller should be treated as an employee of Arco, and that therefore his exclusive remedy against Arco is for worker's compensation benefits.

Vizena involved an independent contractor welder, who was killed while repairing a salt water tank for an oil and gas refinery. The court held that since he spent a substantial part of his work time in manual labor doing work that was an integral part of the refinery's trade, business, and occupation, his exclusive remedy was under the compensation law. In the recent case of Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986), Vizena was cited as an example of an expansive "integral relation" test that was initially in use by the courts of this state. The court in Berry explained that the integral relation test of Vizena has now been abandoned in favor of the more restrictive method of analysis announced in Berry and Rowe v. Northwestern National Ins. Co., 471 So.2d 226 (La.1985). In deciding the present case we will accordingly apply the precepts of Berry and Rowe rather than the holding of Vizena.

For an independent contractor to be covered under the worker's compensation law, *1098 he must show not only that he spent a substantial part of the work time in manual labor carrying out the contract, but also that he performed services "arising out of and incidental to his employment in the course of his employer's trade, business or occupation." LSA-R.S. 23:1021(6); R.S. 23:1035; Lushute v. Diesi, 354 So.2d 179 (La.1978); Brown v. State Farm Fire & Casualty Company, 407 So.2d 1251 (La. App. 3rd Cir.1981); 13 W. Malone & H. Johnson, La. Civil Law Treatise — Worker's Compensation, § 78 (1980). In the present case there can be little doubt that a substantial part of Miller's work was manual labor. But there remains the question of whether his contract work was a part of the trade, business, or occupation of Arco. For this the test of Berry v. Holston Well Service, Inc., supra, is applicable.

One rule explained in Berry is that if it is determined that the contract work is specialized per se, the work is not a part of the principal's trade, business or occupation as a matter of law. That court said that whether the contract work is specialized is a question of fact, requiring considerations of whether the contract work requires a degree of skill, training, experience, education and/or equipment not normally possessed by those outside the contract field. In Berry, the contract work was wireline service — work which the court held was specialized per se. The principal in that case had no employees of its own who could do wireline work and had always contracted out that type of work to those entities with the skill and equipment to handle the job properly.

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Bluebook (online)
499 So. 2d 1095, 1986 La. App. LEXIS 7809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-atlantic-richfield-co-lactapp-1986.