Mac Duncan v. Dow Pipeline Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1455

MAC DUNCAN

VERSUS

DOW PIPELINE COMPANY

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, DOCKET NO. 02-65964-G
HONORABLE CHARLES L. PORTER, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

J. Bryan Jones, III
Post Office Drawer 8841
Lake Charles, Louisiana 70606
(337) 598-2638
COUNSEL FOR PLAINTIFF/APPELLANT:
Phyllis Duncan on behalf of Mac Duncan, deceased

Ben L. Mayeaux
Jennie P. Pellegrin
Laborde & Neuner
One Petroleum Center, Suite 200
1001 West Pinhook Road
Lafayette, Louisiana 70503
(337) 237-7000
COUNSEL FOR DEFENDANT/APPELLEE:
Dow Pipeline Company

Richard J. Hymel
F. Douglas Ortego
Preis, Kraft & Roy
Post Office Drawer 94-C
Lafayette, Louisiana
(337) 237-6062
COUNSEL FOR INTERVENOR:
Alaska National Insurance Company

GENOVESE, Judge.

Plaintiff, Phyllis Duncan, the surviving spouse of the deceased Plaintiff, Mac

Duncan (Duncan),1 appeals the judgment of the trial court granting summary

judgment in favor of Defendant, Dow Pipeline Company (Dow), finding that Dow

was the statutory employer of Mac Duncan at the time of his personal injury and

dismissing Duncan’s suit in tort against Dow. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

In February of 2002, Dow contracted with Cain’s Hydrostatic Testing, Inc.

(Cain), Duncan’s employer, to repair several of its oil pipeline platforms along Dow’s

Mount Belvieu Pipeline in the Atchafalaya Basin. Repairs to Dow’s platforms began

soon thereafter. The repairs entailed replacing old floor boards with new, treated

lumber on the platforms and the steps leading up to the platforms.

Duncan was a laborer employed directly by Cain. On March 7, 2002, in the

process of repairing one of Dow’s platforms, Duncan leaned against a handrail and

fell backwards when the handrail broke. Duncan reportedly “injured his lower back

and suffered a head injury causing some short term memory loss” when he “fell

through some handrails on the platform” owned by Dow. Duncan filed suit against

Dow in district court, alleging that Dow was negligent for failing to properly maintain

the handrails when it either knew or should have known that the handrails were

faulty. Duncan has received workers’ compensation benefits from his direct

employer, Cain. Cain’s workers’ compensation insurer, Alaska National Insurance

Company, has intervened in this matter, asserting subrogation rights for the workers’

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According to the record, Mac Duncan died of lung cancer on December 28, 2003; thereafter,
his wife, Phyllis Duncan, filed a motion to substitute parties in order to enroll as the proper party
plaintiff in this matter. Thus, to avoid confusion, this court will continue to refer to the sole
remaining plaintiff/appellant in this matter, Phyllis Duncan, as “Duncan.”

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compensation benefits it has paid on Duncan’s claims.

Dow answered Duncan’s petition raising the affirmative defense that it was

Duncan’s statutory employer. Dow subsequently filed a motion for summary

judgment on the basis that there are no genuine issues of material fact as to its

immunity from tort liability pursuant to Louisiana’s statutory employer doctrine as

stated in its written contract with Cain.

Duncan opposed Dow’s motion, asserting that summary judgment was not

proper; specifically, Duncan argued that genuine issues of material fact exist relative

to whether a statutory employer/employee relationship existed between Dow and

Duncan. First, Duncan asserted that the contract between Dow and Cain contained

both a statutory employer provision and an independent contractor provision.

According to Duncan, such a conflict and contradiction in the contract should have

been construed against Dow and should have then inured to the benefit of Duncan,

thereby disallowing statutory employer status to Dow, and allowing Duncan to

proceed in tort. Second, Duncan argued that Cain’s employees performed work not

considered a part of Dow’s trade, business, or occupation as required by La.R.S.

23:1061; thus, without a valid contract binding Dow and Duncan to a statutory

employer-employee relationship, Duncan is not limited to the exclusive remedy

provisions of Louisiana’s Workers’ Compensation Act.

The trial court issued written reasons for judgment granting Dow’s motion for

summary judgment, finding that the contractual language relative to a statutory

employer-employee relationship was valid and that the work performed by Duncan

was an integral part of Dow’s business as defined by the jurisprudence. Thereafter,

the trial court signed a judgment dismissing Duncan’s tort claim against Dow, thereby

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limiting his recovery to workers’ compensation benefits. Duncan appeals.

ISSUE

In Duncan’s brief to this court, the sole issue presented is “[whether] the trial

court err[ed] by holding that Dow Pipeline Company was the statutory employer of

Mac Duncan when the contract entered into between Dow Pipeline Company and

Mac Duncan’s direct employer, Cain’s Hydrostatic Testing, contained independent

contractor language which contradicted the statutory language of the contract[.]”

STANDARD OF REVIEW

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131; Goins v. Wal-

Mart Stores, Inc., 01-1136 (La. 11/28/01), 800 So.2d 783. The appellate court must

determine whether “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to material fact, and that mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(B).

Louisiana Code of Civil Procedure Article 966 charges the moving party with

the burden of proving that summary judgment is appropriate. However, when the

movant will not bear the burden of proof at trial on the matter that is before the court,

the movant’s burden on the motion does not require him to negate all of the essential

elements of the adverse party’s claim, but rather to point out to the court that there is

an absence of factual support for one or more of the elements essential to the adverse

party’s claim. See La.Code Civ.P. art. 966(C)(2). If the adverse party fails to produce

factual support to convince the court that he can carry his burden of proof at trial,

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there is no genuine issue of material fact and granting of the motion is mandated.

Hardy v. Bowie, 98-2821 (La. 9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287

(La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La. 3/14/97), 690

So.2d 41.

The threshold question in reviewing a trial court’s granting of summary

judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386

(La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La. 3/13/98), 712 So.2d

882. Thereafter, we must determine whether reasonable minds could conclude, based

on the facts presented, that the mover is entitled to judgment. Id. Thus, summary

judgment is appropriate when all relevant facts are brought before the court, the

relevant facts are undisputed, and the sole remaining issue relates to the legal

conclusion to be drawn from the facts. Id.

“Facts are material if they determine the outcome of the legal dispute.” Soileau

v. D & J Tire, Inc., 97-318, p. 3 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, 821, writ

denied, 97-2737 (La. 1/16/98), 706 So.2d 979. The determination of the materiality

of a particular fact must be made in light of the relevant substantive law. Id.

DISCUSSION

According to La.R.S. 23:1032(A)(1)(a), the rights and remedies granted to an

employee under Louisiana’s Workers’ Compensation Act are exclusive to all other

rights, remedies, and claims for damages, except for intentional acts, against any

principal. Principal is defined “as any person who undertakes to execute any work

which is a part of his trade, business, or occupation in which he was engaged at the

time of the injury, or which he had contracted to perform and contracts with any

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person for the execution thereof.” La.R.S. 23:1032(A)(2). Louisiana Revised

Statutes 23:1061 provides, in pertinent part:

[W]hen any “principal” . . . 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 [La.] 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; and where compensation is claimed from, or proceedings are taken
against, the principal, then, in the application of this Chapter reference
to the principal shall be substituted for reference to the employer, except
that the amount of compensation shall be calculated with reference to
the earnings of the employee under the employer by whom he is
immediately employed. 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.

(2) A statutory employer relationship shall exist whenever the
services or work provided by the immediate employer is contemplated
by or included in a contract between the principal and any person or
entity other than the employee’s immediate employer.

(3) Except in those instances covered by Paragraph (2) of this
Subsection, a statutory employer relationship shall not exist between the
principal and the contractor’s employees, whether they are direct
employees or statutory 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.

B. When the principal is liable to pay compensation under this
Section, he shall be entitled to indemnity from any person who
independently of this Section would have been liable to pay
compensation to the employee or his dependent, and shall have a cause
of action therefor.

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In this matter, Dow included and introduced into evidence, with its motion for

summary judgment, five exhibits: (1) the affidavit of Paul Russo, the Activity Leader

for Dow; (2) the affidavit of Beverly Bruno-James, the Administrative Specialist for

Dow; (3) the purchase order/contract between Dow and Cain; (4) excerpts of Mac

Duncan’s deposition testimony; and (5) a copy of Duncan’s petition for damages

against Dow. The relevant provision of the contract at issue herein provides:

STATUTORY EMPLOYEE
DOW (AS PRINCIPAL EMPLOYER) AND THE
CONTRACTOR (AS DIRECT EMPLOYER) MUTUALLY
AGREE THAT IT IS THEIR INTENTION TO
RECOGNIZE DOW AS THE STATUTORY EMPLOYER
OF THE CONTRACTOR’S EMPLOYEES, W HETHER
DIRECT EMPLOYEES OR STATUTORY EMPLOYEES

In response to Dow’s motion and exhibits, Duncan submitted no evidence

showing the existence of specific facts which would establish a genuine issue of

material fact, only argument. In her brief, Duncan argues a purported contractual

provision that is not found in the note of evidence in the record of this summary

judgment proceeding; therefore, we find Duncan’s assertions to be purely speculative

and without merit for lack of both testamentary or evidentiary support. Duncan

contends that the trial court erred because it did not consider the independent

contractor language found in the contract entered into by Dow and Cain. However,

we find that there was no such contractual provision properly introduced into the

record of these proceedings; therefore, there is no independent contractor provision

before this court for us to review on appeal.

The written contract between Dow and Cain clearly establishes a statutory

relationship whereby Dow is the statutory employer of Cain’s employees. Pursuant

to La.R.S. 23:1061(A)(3), once it is found that a written contract creates a statutory

employer relationship, there is a rebuttable presumption which can only be overcome

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by Duncan proving that the work he was performing at the time he sustained his

injuries was not an integral part of or essential to Dow’s ability to generate its goods,

products, or services. Again, we find the record devoid of competent evidence of

Duncan overcoming this presumption.

Our review of the record reveals that the trial court relied upon Dow’s affidavit

of Paul Russo and the holding in Becker v. Chevron Chemical Company, 983 F.2d 44

(5th Cir. 1993), to support its finding that the work Duncan was performing at the

time he sustained his injuries was an integral part of Dow’s business under La.R.S.

23:1061(A)(3). In Becker, the Fifth Circuit held that the replacement of overhead

walkways, which were used daily at Chevron’s storage facility to access hatches

above storage tanks, was an integral part of Chevron’s business, such that Chevron

was the statutory employer of the contractor’s employees who were hired to replace

said walkways, regardless of whether the job might be considered extraordinary

construction work.

In its written reasons for judgment in the case sub judice, the trial court

concluded:

Duncan removed old deck boards and sills from Dow’s platform and
replac[ed] them with treated lumber. Dow’s “trade, business or work”
is manufacturing various chemicals. Dows uses pipelines to transport
chemicals for use in its manufacturing process. Valves used to monitor
safe operation of the pipelines are designated at different intervals of the
pipeline. The platform repaired by Mac Duncan is necessity [sic] for
Dow’s safe operation. Dow’s technicians require access to safety valves
to monitor the pipelines for leaks and/or malfunctions and perform
maintenance and repair work. See Affidavit of Paul Russo dated August
3, 2005.
This court finds the reasoning in Becker[] appropriate and
applicable to this case. The “work” perform[ed] by Duncan (repairing
the entire flooring of the platform and replacing it with treated wood and
floor joists, creating a safer platform) is an integral part of Dow’s

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business under L[a].R.S. 23:1061. Dow’s ability to operate and
maintain safe pipelines is essential to its smooth and continued business
of manufacturing oil products.

(Footnote omitted.)

Thus, considering the evidence properly before this court, we find that

summary judgment was appropriately granted by the trial court. The record clearly

indicates the existence of a contractual statutory employer relationship between

Duncan and Dow, which Duncan failed to overcome. There are no genuine issues of

material fact and Dow is entitled to summary judgment as a matter of law pursuant

to the mandates of La.Code Civ.P. art. 966; hence, Duncan’s sole remedy lies in

workers’ compensation.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary

judgment in favor of Dow is affirmed. Costs of this appeal are assessed against

Plaintiff/Appellant, Phyllis Duncan on behalf of Mac Duncan, deceased.

AFFIRMED.

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