Thompson v. South Central Bell Telephone Co.

402 So. 2d 799, 1981 La. App. LEXIS 4447
CourtLouisiana Court of Appeal
DecidedJuly 30, 1981
DocketNo. 12286
StatusPublished
Cited by4 cases

This text of 402 So. 2d 799 (Thompson v. South Central Bell Telephone 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
Thompson v. South Central Bell Telephone Co., 402 So. 2d 799, 1981 La. App. LEXIS 4447 (La. Ct. App. 1981).

Opinion

GULOTTA, Judge.

In this appeal the issue is whether South Central Bell Telephone Company is the “statutory employer” of Don Thompson entitled to a dismissal by summary judgment of Thompson’s tort suit for injuries sustained in a job-related accident.

At the time of his accident, Thompson was employed by Cifers Construction Company, Inc., which was under contract with South Central Bell to install underground, plastic conduit that would ultimately encase telephone wires running to a new office development on Canal Street in the City of New Orleans. Thompson was injured when the jackhammer he was operating struck an underground electrical cable owned by New Orleans Public Service, Inc. (NOPSI). Suit was directed against NOPSI, South Central Bell, and Surveys, Inc., an engineering firm that had drawn a map of underground utility lines in the area. Surveys, Inc. then third partied South Central Bell. United States Fidelity and Guaranty Company, Ci-fers’ workmen’s compensation insurer, intervened, claiming reimbursement for compensation and medical expenses paid to Thompson.

Based on the grounds that South Central Bell was the statutory employer of Thompson under LSA-R.S. 23:10611 and therefore immune from tort liability pursuant to LSA-R.S. 23:1032,2 the trial judge by summary judgment dismissed the original and third party petitions, as well as the intervention filed against Bell. Plaintiff and third party plaintiff have appealed.3 We affirm.

Plaintiff contends the trial judge erred in granting the summary judgment since the affidavit of a South Central Bell employee supporting the motion was legally insufficient in that it consisted merely of concluso-ry statements and did not affirmatively show that the affiant had personal knowledge of his statements as required by LSA— [802]*802C.C.P. Art. 967.4 Thompson further argues that South Central Bell’s status as a statutory employer hinges on a factual question whether the excavation and the laying of the conduit was a part of the telephone company’s regular trade, business or occupation. Concerning this issue, plaintiff contends the work performed by Cifers was “new construction” outside of South Central Bell’s regular business. Thompson further claims that LSA-R.S. 23:1032 denies to him access to courts as mandated in LSA-Const. Art. 1, § 22.5

Surveys, Inc. also contends that the telephone company’s status as a statutory employer is an unresolved factual question and that the work performed by Cifers involved construction of a new facility that was not part of the phone company’s business. Surveys argues that South Central Bell is a “service” rather than a “construction” company and that it merely installs, operates, and maintains telephone lines and equipment rather than constructing or burying the plastic conduit encasing them.

Summary judgment is granted only when the pleadings, depositions on file, answers to interrogatories and any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C. C.P. Art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Davis v. Copeland Enterprises, Inc., 390 So.2d 891 (La.1980). A party seeking summary judgment has the burden of showing the absence of any materially factual issue; and any doubt must be resolved in favor of a trial on the merits. Chaisson v. Domingue, supra.

The issue whether work performed by a contractor is part of the principal’s business, within the meaning of LSA-R.S. 23:1061, is a factual one and, therefore, summary judgment procedure is seldom appropriate in such cases. McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir. 1975). In appropriate cases of this sort, however, summary judgment has been granted. See Fontenot v. Andrus Homes, Inc., 391 So.2d 42 (La.App. 3rd Cir. 1980) and the cases cited therein. For summary judgment to be granted, it must appear certain that the work undertaken by the injured employee’s actual employer was part of defendant’s trade, business or occupation, or was work which it had contracted to perform. Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981).

J. A. Cothern averred in his affidavit that he was the Divisions Manager for South Central Bell; that the affidavit was based upon his personal knowledge, information and belief; that the trade, business and occupation of South Central Bell is “providing a public utility telephone service to subscribers”; and that “an integral and necessary part of this trade, business or occupation is the construction and maintenance of both underground and above ground facilities and telephone transmission lines . .. . ” He averred that the breaking of the concrete and the digging of underground pathways for the laying of the conduit performed by Thompson as an employee of Cifers “was absolutely necessary and essential in order to provide telephone service.” According to Cothern, South Central Bell chose to contract out the work set forth in the Cifers contract even though the work could be performed by the telephone company with its own equipment and employees in its construction department.

In deposition, Joseph H. Baudot, manager of the construction department of South [803]*803Central Bell in the central business district, where the accident occurred, stated that the telephone company had issued “construction drawings” to Cifers. He further stated that the work of tearing up streets and installing the conduit for the cable is “contracted out.” According to Baudot, South Central Bell has an employee at the project site at various times to see that the excavator’s work is done in conformity with the telephone company’s practices and specifications.

James Perot, Jr., project engineer for South Central Bell at the time of the accident, designed the conduit involved from base drawings designed by Surveys, Inc. He stated, in deposition, that telephone company construction employees do not lay conduit.

The trial court also had the benefit of the deposition of Jimmie Billiot, Cifers’ supervisor on the job at the time of the accident. It was his job to make sure the conduit was laid properly and that the trench was in the right place according to the drawings supplied by South Central Bell. He testified that he had received a set of the drawings from the telephone company’s contract supervisor and used them on the job.

At the outset, we reject plaintiff’s contention that J. A. Cothern’s affidavit in support of the motion for summary judgment was legally insufficient.

It is true that an affidavit supporting or opposing a motion for summary judgment must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify concerning the matters stated therein. LSA-C.C.P. Art. 967, supra; Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978). It is also true that a mere conclusory statement that the affiant has personal knowledge of the facts set forth in the affidavit will not suffice.

However, in our case, the affiant, J. A. Cothern, testified that he was South Central Bell’s Division Staff Manager, that he made statements based on his own personal knowledge, information and belief, and that he had been employed by South Central Bell since 1956 and had held his present position since April, 1977.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Keller v. Evans Cooperage, Inc.
641 So. 2d 552 (Louisiana Court of Appeal, 1994)
Lewis v. Exxon Corp.
417 So. 2d 1292 (Louisiana Court of Appeal, 1982)
Smith v. Louisiana Paving Co.
411 So. 2d 550 (Louisiana Court of Appeal, 1982)
Thompson v. South Central Bell Tel. Co.
411 So. 2d 26 (Supreme Court of Louisiana, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
402 So. 2d 799, 1981 La. App. LEXIS 4447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-south-central-bell-telephone-co-lactapp-1981.