Twayne Abdul v. Touro Infirmary & Hebrew Benevolent Association and Abc Insurance Company

TWAYNE ABDUL * NO. 2023-C-0494

VERSUS *
COURT OF APPEAL
TOURO INFIRMARY & *
HEBREW BENEVOLENT FOURTH CIRCUIT
ASSOCIATION AND ABC *
INSURANCE COMPANY STATE OF LOUISIANA
*******

ON SUPERVISORY WRIT FROM THE
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-06023, DIVISION “E”
Honorable Omar Mason, Judge
******
Judge Paula A. Brown
******
(Court composed of Judge Joy Cossich Lobrano, Judge Paula A. Brown, Judge
Nakisha Ervin-Knott)

Christopher R. Schwartz
Schwartz Law Firm, LLC
2901 N. Causeway Blvd., Suite 204
Metairie, Louisiana 70002

COUNSEL FOR PLAINTIFF/RESPONDENT

Brett M. Dupuy
Jean Paul Morrell
Middleberg Riddle Group
909 Poydras Street, Suite 1400
New Orleans, Louisiana 70112

COUNSEL FOR DEFENDANT/RELATOR

WRIT GRANTED
OCTOBER 5, 2023

PAB
JCL
NEK

Relator, Touro Infirmary & Hebrew Benevolent Association (“Touro”),

seeks review of the district court’s judgment, which denied its motion for summary

judgment and found that Touro was not Respondent’s, Twayne Abdul (“Ms.

Abdul”), statutory employer pursuant to the Management Agreement between

Touro and Central Parking System of Louisiana, Inc. (“Central Parking”), Ms.

Abdul’s direct employer. For the reasons outlined below, we grant Touro’s writ

application, and find that there is no genuine issue of material fact as to Touro’s

status as Ms. Abdul’s statutory employer, and dismiss Ms. Abdul’s tort claim

against Touro, reserving Ms. Abdul’s right to pursue her claims against Touro in

accordance with the Louisiana Workers’ Compensation Act (“LWCA”).

FACTS AND PROCEDURAL HISTORY

On October 29, 2019, Ms. Abdul was working for Central Parking as a

parking garage cashier when allegedly she suffered injuries to the right side of her

body after the metal door to the cashier’s booth fell off of its track and struck her.

At the time of this accident, the property was owned by Touro. On May 4, 2009,

Touro and Central Parking entered into a Management Agreement, wherein

Central Parking agreed to operate Touro’s parking garage to meet the needs of

1

Touro’s hospital operation, maintain workers’ compensation insurance and pay the

related premiums in exchange for a monetary fee.

As a result of her accident, Ms. Abdul filed a workers’ compensation claim

against her direct employer, Central Parking. Afterwards, on August 26, 2020, Ms.

Abdul filed a tort suit against Touro, alleging that Touro failed to exercise

reasonable care as the owner of the parking garage.

On March 23, 2023, Touro filed a motion for summary judgment, in which it

asserted that Ms. Abdul was a statutory employee of Touro; therefore, her

exclusive remedy against Touro was limited to workers’ compensation, as

provided for in the LWCA. To support this argument, Touro attached the following

exhibits: (1) Ms. Abdul’s petition for damages; (2) the deposition of Ms. Abdul;

(3) the deposition and affidavit of Greg Barker, Vice President of Operations at

Touro; and (4) the Management Agreement between Touro and Central Parking,

which stated that Touro would be the statutory employer of all of Central Parking’s

employees. Touro further argued that based on its status as a statutory employer,

pursuant to La. R.S. 23:1061(A)(3)1, there was a rebuttable presumption that Touro

was Ms. Abdul’s statutory employer at the time of her alleged injury. This

presumption shifted the burden to Ms. Abdul to prove that she and Central Parking

were not performing work that was an integral part of or essential to the ability of

Touro to generate its goods, products, or services.

In response, Ms. Abdul opposed the motion for summary judgment, arguing

that Touro could not use the statutory employer defense because it failed to

properly raise the affirmative defense in its answer. Ms. Abdul further argued that

the parking garage was not an integral part of Touro’s hospital operations because

1 See infra note 3.

2

the parking garage does not directly involve the delivery of medical services, thus,

Touro was not her statutory employer.

In its reply memorandum, Touro maintained that it sought and received

leave of court to amend its answer and filed a supplemental and amended answer

to petition for damages on May 2, 2023, to cure the issue of whether it properly

raised its statutory immunity. Touro reurged its argument that when the burden

shifted to Ms. Abdul, she failed to rebut the presumption of a statutory employer

relationship between Touro and the Central Parking’s employees.

At the May 19, 2023 hearing on the motion for summary judgment, the

district court, relying upon the holding in Prejean v. Maintenance Enterprises,

Inc., found that the statutory employer provision of the Management Agreement

was invalid.2 It is from this judgment that Touro seeks review.

DISCUSSION

Touro contends that the district court erred in invalidating the statutory

employer provision in the contract between Touro and Central Parking and

subsequently denying its motion for summary judgment when the evidence

established that Ms. Abdul failed to rebut the presumption of statutory

employment. We find that this argument has merit.

A motion for summary judgment will be granted “[a]fter an opportunity for

adequate discovery, … if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). “The burden of proof

rests with the mover.” La. C.C.P. art. 966(D)(1). “Nevertheless, if the mover will

2 Prejean v. Maintenance Enterprises, Inc., 08-0364 (La. App. 4 Cir. 3/25/09), 8 So.3d 766; see

full discussion infra p. 7.

3

not bear the burden of proof at trial on the issue that is before the court on the

motion for summary judgment, the mover’s burden on the motion does not require

him to negate all essential elements of the adverse party’s claim, action, or defense,

but rather to point out to the court the absence of factual support for one or more

elements essential to the adverse party’s claim, action, or defense.” Id. “The

burden is on the adverse party to produce factual support sufficient to establish the

existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law.” Id.

“Louisiana Revised Statutes 23:1031 provides for workers’ compensation

benefits to an employee who is injured by an accident ‘arising out of’ and ‘in the

course of’ his employment.” Fox v. Shaw Grp., 12-329, p. 3 (La. App. 3 Cir.

11/28/12), 106 So.3d 200, 203 (citing Smith v. Continental Casualty Company, 98-

2896 (La. App. 1 Cir. 2/18/00), 752 So.2d 381). When “[a] principal [is] held to be

a statutory employer, and thus liable to pay workers’ compensation to an employee

of a contractor he engages[,] . . . [w]orkers’ compensation is the exclusive remedy

of the contractor’s employee . . . and the principal is immune from tort liability.”

Id. at pp. 3-4, 106 So.3d at 203 (citing La. R.S. 23:1032).

“The issue of statutory employment status is a mixed question of law and

fact.” Dominio v. Folger Coffee Co., 09-1278, p. 10 (La. App. 4 Cir. 2/10/10), 32

So.3d 955, 961 (citing WILLIAM E. CRAWFORD, TORT LAW, 12 LOUISIANA

CIVIL LAW TREATISE § 27:51 (2d ed. 2009)). “The doctrine of ‘statutory

employer’ is also codified in [La. R.S.] 23:1061, and was amended in 1997 to

provide that when a valid written contract recognizes the existence of a statutory

employer relationship, a rebuttable presumption of a statutory relationship is

4

created.” St. Angelo v. United Scaffolding, Inc./X-Serv., Inc., 09-1420, p. 5 (La.

App. 4 Cir. 5/19/10), 40 So.3d 365, 369 (citing La. R.S. 23:1061(A)(3)) 3.

With these precepts in mind, we turn to the Management Agreement

between Touro and Central Parking. Specifically, Section 20 of the Management

Agreement provides:

[Touro] and [Central Parking] agree that, during the term of this
Agreement, all personnel employed by [Central Parking] to operate
the Parking Facility shall be solely the employees of [Central Parking]
and shall have no contractual relationship with [Touro].
Notwithstanding the foregoing, and solely for purposes of complying
with the Louisiana Workers’ Compensation Act (La. R.S. section
23:1021, et seq.) (the “LWCA”), [Touro] and [Central Parking] agree
that (i) [Touro] is the statutory employer of those [Central Parking]
employees providing services to [Touro] under this Agreement . . . in
accordance with La. R.S. section 23:1061; (ii) all work and services
performed by [Central Parking] and its employees are an integral part
of and are essential to the ability of [Touro] to operate its business;
(iii) the rights and remedies of such employees and their dependents
against [Touro] on account of an injury, or compensable sickness or
disease for which they may be entitled to compensation under the
LWCA, shall be limited to the rights and remedies granted in La. R.S.
section 23:1032; and (iv) this Section is included in this Agreement

3 La. R.S. 23:1061(A) provides, in pertinent part:

A. (1) [W]hen any “principal” as defined in R.S. 23:1032(A)(2), undertakes to
execute any work, which is a part of his trade, business, or occupation and
contracts with any person, in this Section referred to as the “contractor”, for the
execution by or under the contractor of the whole or any part of the work
undertaken by the principal, the principal, as a statutory employer, shall be
granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to
pay to any employee employed in the execution of the work or to his dependent,
any compensation under this Chapter which he would have been liable to pay if
the employee had been immediately employed by him . . . . For purposes of this
Section, work shall be considered part of the principal’s trade, business, or
occupation if it is an integral part of or essential to the ability of the principal to
generate that individual principal’s goods, products, or services.
***
(3) [A] statutory employer relationship shall not exist between the principal and
the contractor’s employees . . . unless there is a written contract between the
principal and a contractor which is the employee’s immediate employer or his
statutory employer, which recognizes the principal as a statutory employer. When
the contract recognizes a statutory employer relationship, there shall be a
rebuttable presumption of a statutory employer relationship between the principal
and the contractor’s employees, whether direct or statutory employees. This
presumption may be overcome only by showing that the work is not an integral
part of or essential to the ability of the principal to generate that individual
principal’s goods, products, or services.

5

for the sole purpose of establishing a statutory employer relationship
to gain the benefits expressed in La. R.S. section 23:1032, La. R.S.
section 23:1061 and other provisions of the LWCA and is not
intended to create an employer/employee relationship for any other
purpose.

In denying Touro’s motion for summary judgment, the district court held

that “the statutory employer provision of the [Management Agreement] was

invalid as the Court found in the Prejean case” because “the language [was]

improperly trying to reap the benefits of the tort immunity while at the same time

not incurring . . . the direct obligations with the purported statutory employee.”

However, we find that the case sub judice is distinguishable from Prejean. In

Prejean, this Court affirmed the district court’s application of La. R.S. 23:1061 and

provided:

[W]e conclude that the provision of the contract which purports to
confer tort immunity to Murphy Oil while modifying, and even
renouncing, the unconditional obligation of solidary liability to Mr.
Prejean is invalid. Because Murphy Oil did not accept
unconditionally, implicitly or explicitly, the obligation of a statutory
employer, it cannot obtain the benefit of a statutory employer, which
is tort immunity. In order for a contract to validly confer the status of
statutory employer upon a principal, its terms and conditions cannot
relieve a party of the statutory obligations which arise from such
status unless the Legislature explicitly provides otherwise.

Prejean, 08-0364, p. 16 (La. App. 4 Cir. 3/25/09), 8 So.3d 766, 776 (emphasis in

original).

Unlike Prejean, here, based on the explicit references to the LWCA statutes

in section 20 of the Management Agreement, it is clear that Touro and Central

Parking entered into this agreement to establish a statutory employer regime—in

which both parties agreed to be liable jointly and in solido to pay workers’

compensation benefits, and to limit Central Parking’s employees’ rights and

remedies for compensable damages against Touro to compensation pursuant to the

6

LWCA. Further, the requirement for Central Parking to maintain workers’

compensation insurance cannot be interpreted as an attempt by Touro to limit its

obligations to pay workers’ compensation benefits.

As this Court held in Prejean, “[n]either a direct employer nor a statutory

employer may, as to the injured worker, contract away its solidary obligation: ‘No

contract, rule, regulation, or device whatsoever shall operate to relieve the

employer, in whole or in part, from any liability created by this Chapter except as

herein provided.’” Id. at pp. 12-13, 8 So.3d at 774 (quoting La. R.S. 23:1033)

(emphasis in original). However, “none of this precludes either the statutory

employer or the direct employer from contracting as between themselves rights of

contribution or indemnification.” Id. at p. 13, 8 So.3d at 774 (citing La. R.S.

23:1031(B) and 1063(A)). Thus, Central Parking’s requirement to pay workers’

compensation insurance premiums under the Management Agreement does not

invalidate the provision establishing a statutory employer relationship. For these

reasons, we find that the district court erred in invalidating the statutory employer

provision of the Management Agreement and instead recognize the existence of a

statutory employer relationship between Touro and Central Parking.

Having found that the Management Agreement is valid, the burden now

shifts to Ms. Abdul to rebut the presumption of Touro’s statutory employer status

by demonstrating that the work she was performing at the time she sustained her

injuries was not an integral part of or essential to Touro’s ability to generate its

goods, products, or services.

In the district court, Ms. Abdul argued that the parking garage was not an

essential component of Touro’s hospital operation because it is “simply a facility

that provides parking space for patients, visitors, and hospital staff” and it is not

7

“directly involved in the delivery of medical services.” Ms. Abdul also argued that

because the garage is not an essential component of Touro’s hospital operation,

Touro cannot be her statutory employer.

However, this Court has previously rejected a similar argument in Ramos:

[I]n Jackson v. St. Paul Ins. Co., 04-0026, p. 8 (La. App. 1 Cir.
12/17/04); 897 So.2d 684, 689, the Louisiana First Circuit noted, after
reviewing the history of the statutory employer doctrine, that the
legislature has specifically rejected a restrictive analysis in favor of a
more liberal interpretation of the words “integral” and “essential.”
And, in recent years, Louisiana courts have frequently found that
certain work which is ancillary to the statutory employer’s operations
is nevertheless essential to the ability of the statutory employer’s
operations. See Johnson v. Tennessee Gas Pipeline Co., 99 F.Supp.2d
755 (E.D. La. 2000) (finding that contractor’s work of performing
catering services onboard an oil and gas compressor facility was
integral and essential to the statutory employer’s ability to operate its
oil and gas compressor facility); Applegarth v. Transamerican
Refining Corp., 00-1547 (La. App. 5 Cir. 2/28/01); 781 So.2d 804,
writ denied, 01-0834 (La. 5/11/01); 792 So.2d 738 (La. 2001)
(upholding summary judgment where contractor performed
construction at a refinery where the refinery was not engaged in
providing construction services); Oliver v. Day Zimmermann, 05-
3072, 2006 WL 508047 (E.D. La. 2006) (holding that the provision of
security services at an oil refinery was essential to the refinery’s
operations).

Ramos v. Tulane Univ. of Louisiana, 06-0487, p. 5 (La. App. 4 Cir. 1/31/07), 951

So.2d 1267, 1270.

Under La. R.S. 23:1061(A)(1), “[w]ork shall be considered part of the

principal’s trade, business, or occupation if it is an integral part of or essential to

the ability of the principal to generate that individual principal’s goods, products,

or services.” Touro operates a healthcare facility, including a hospital and clinic,

along with other services. In conjunction with providing its medical services,

Touro also provides parking for its patients, its doctors and nurses, employees,

other staff, and for the public. The Management Agreement makes clear that

8

Central Parking is to “operate the parking garage in a manner consistent with

satisfying as efficiently as possible, the parking demands generated by [Touro] and

its facilities.” Accessible and dedicated parking is an essential part of Touro’s

ability to provide service and care for its patients. Review of the record shows that

Ms. Abdul has not offered any evidence to demonstrate that the parking garage is

not essential to Touro’s ability to service and care for its patients. Consequently,

Ms. Abdul has failed to rebut the presumption of the statutory employment created

by statute and under the terms of the Management Agreement.

Based on the foregoing, we grant Touro’s writ application, and find that

there is no genuine issue of material fact as to Touro’s status as Ms. Abdul’s

statutory employer, and dismiss Ms. Abdul’s tort claim against Touro, reserving

Ms. Abdul’s right to pursue her claims against Touro in accordance with the

LWCA.

WRIT GRANTED

9