Simon v. Hooker Chemical Corp.

489 So. 2d 372, 1986 La. App. LEXIS 6978
CourtLouisiana Court of Appeal
DecidedMay 12, 1986
DocketNo. 85-CA-418
StatusPublished
Cited by1 cases

This text of 489 So. 2d 372 (Simon v. Hooker Chemical Corp.) 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
Simon v. Hooker Chemical Corp., 489 So. 2d 372, 1986 La. App. LEXIS 6978 (La. Ct. App. 1986).

Opinion

GAUDIN, Judge.

Leo J. Simon was seriously injured in an industrial accident on October 15, 1979. A two-inch pipe he was standing on broke and he fell 25 feet to the ground. Subsequently, he filed a tort suit against Occidental Chemical Corporation, formerly Hooker Chemical and Plastics Corporation. At the time of the sued-on occurrence, Simon was employed by H & L Enterprises and doing welding work at Occidental’s plant in Taft, Louisiana.

Following a three-day bench trial in November, 1984, Simon was awarded $957,-633.00 plus past medical expenses, legal interest and court costs.

On appeal, Occidental contends that it was Simon’s statutory employer and that Simon was therefore limited to workmen’s compensation benefits. Also, Occidental argues that the trial judge erred (1) in failing to find Simon contributory negligent or that he assumed the risk, (2) in not finding that Occidental was entitled to indemnity from H & L and its insurer, (3) in awarding lost wages of $128,243.00 to Simon and (4) in awarding $675,000.00 for pain, suffering and disability.

Simon was also awarded $139,278.00 for future loss of wages and $15,115.00 for future medical expenses.

For reasons that follow, we cannot say that the trial judge was manifestly wrong in finding that Occidental had not proven that Simon was a statutory employee and thus unable to maintain and ultimately prevail in this ex delicto action, nor can we say that the trial judge fell into legal error in denying Occidental’s request for indemnity. However, we find the award clearly excessive and we reduce it to $632,633.00, which includes $350,000.00 for pain, suffering and disability instead of $675,000.00.

STATUTORY DEFENSE

We shall consider, initially, Occidental’s argument that Simon was a statutory employee. When Simon fell, he was engaged, along with other H & L employees, in construction of a new 20-inch steam transfer line between boilers at two separate chemical plants at the Taft site. The boilers used different types of fuel, and the purpose of the 20-inch line was to transfer steam from one boiler to another, depending on which type fuel was more economical to use at a particular time. The 20-inch line was to replace a less functional eight-inch line.

There were three tiers or levels of pipes where Simon was working. He was welding a four-inch tie-in line to the 20-inch line, the four-inch line being in the middle tier which was approximately six or seven feet above the lowest tier. After welding on the four-inch line from above, Simon attempted to lower himself onto the bottom tier so he could weld from below the four-inch line. In so doing, he stepped onto a two-inch pipe which gave way, Simon dropping to the ground.

In order to qualify as a so-called statutory employer, Occidental had to show that H & L in general and Simon in particular were performing work within the sphere of Occidental’s trade, business or occupation. It is often difficult to ascertain whether a certain undertaking is included in a principal’s trade, business or occupation. In Lewis v. Exxon Corp., 441 So.2d 192 (La.1983), the Supreme Court of Louisiana, at pages 197 and 198, stated:

“Two elements ... must be met in order for a principal to be considered a statutory employer. First, the ‘work’ must be a part of the principal’s ‘trade, business or occupation.’ Second, the principal must have been engaged in that trade, business or occupation at the time of the injury. Absent either of these two conditions, the injury will not come within the scope of the workers’ compensation program.
“Courts must look to the facts of each individual case to determine whether a particular activity is within the scope of a principal’s trade, business or occupation. Generally, in order for a work or project to be within a principal’s trade, business or occupation, it must be routine or customary, Benson v. Seagraves, 436 So.2d [374]*374525, 529 (La.1983); Reeves v. Louisiana & Arkansas Railway Co., 282 So.2d 503, 507-08 (La.1973), or some other type of activity which is necessary for the principal’s day-to-day operations. Put another way, the works contemplated by the statute are those activities which are an actual part of the nature and purpose of the principal’s enterprise. Extraordinary or nonrecurring constructions or repairs usually are outside the scope of the trade or business of manufacturing or production concerns. See 1C A. Larson, The Law of Workmen’s Compensation § 49.-12, at 9-24 to 29 (1982).”

In a later opinion, Rowe v. Northwestern Nat. Ins. Co., 471 So.2d 226 (La.1985), the Supreme Court again emphasized that the determination of whether a principal is a statutory employer is a factual question and must be decided on a case by case basis.

Here, Occidental was in the business of making chlorine and was not in the welding or construction business. Although Occidental employed 87 maintenance people, there was sufficient testimony indicating that the installation of the 20-inch steam transfer line was unaccustomed construction and that Occidental did not employ welders able to do this job.

Robert J. Mayeaux III, a chlorine process foreman and an 18-year Occidental employee, said that Occidental hired welders when welding work had to be done. He was asked: “And do you know of any Hooker (Occidental) welders that did construction work for Hooker (Occidental) themselves?” His response: “Not offhand.” H & L had contracted with Occidental1 on May 1,1972 whereby H & L was to “... assume responsibility for such maintenance, repair, renovation or minor new construction work ...” as Occidental would from time to time assign. Under the terms of this broad assignment, it was possible for H & L to perform tasks within Occidental’s trade, business or occupation and possible for H & L to undertake new or exceptional endeavors outside of Occidental’s trade, business or occupation. In any event, we cannot say that the trial judge was manifestly wrong in deciding that the scope of the contract covered maintenance and repairs and new construction and that the welding work on the new 20-inch steam transfer line was beyond Occidental’s trade, business or occupation. The record supports these conclusions, particularly if the trial judge placed more credence in Simon’s witnesses than in Occidental’s.

In her “Reasons for Judgment,” the trial judge said:

“In this case, there is no evidence that Occidental routinely or customarily installed new lines. Nor was the work ‘necessary for the principal’s day-to-day operations.’ This was non-recurring work, a one-time construction of a new pipeline to connect the fuel units of two separate plants for purposes of economy. There is no evidence that Occidental was either equipped to handle this kind of construction with its own employees or that it had done similar construction with its own employees in the past. It is clear from the testimony of the H & L employees that the work performed by the construction crew, which would change the general operation of the plant, was not a part of the trade, business, or occupation of Occidental. Even though plaintiff’s crew may sometimes have performed maintenance, the owner will not be allowed to avoid liability to the employee of a contractor by requiring some maintenance work to be done by employees hired primarily for a construction project. The ‘statutory employer’ defense is not available to Occidental.”

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489 So. 2d 372, 1986 La. App. LEXIS 6978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-hooker-chemical-corp-lactapp-1986.