Garred Whotte v. International Paper Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-362

GARRED WHOTTE, ET AL.

VERSUS

INTERNATIONAL PAPER COMPANY

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 86020
HONORABLE ERIC ROGER HARRINGTON, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery,
Judges.

Cooks, J., concurs and assigns reasons.

AFFIRMED.

Herschel E. Richard, Jr.
Andrew P. Lambert
Cook, Yancey, King & Galloway
Post Office Box 22260
Shreveport, Louisiana 71120-2260
(318) 221-6277
COUNSEL FOR DEFENDANT/APPELLEE:
International Paper Company

John R. Whaley
Whaley Law Firm
3112 Valley Creek Drive, Suite D
Baton Rouge, Louisiana 70808
(225) 302-8810
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Garred Whotte
Megan Whotte

CONERY, Judge.

The plaintiffs, Garred and Megan Whotte, filed a personal injury lawsuit

against International Paper Company (IPCO) for injuries sustained by Mr. Whotte

in an industrial accident. The trial court granted IPCO’s motion for summary

judgment, dismissing the Whottes’ lawsuit with prejudice, finding that IPCO was

immune from a suit sounding in tort on the basis that Mr. Whotte was IPCO’s

statutory employee pursuant to the provisions of the Louisiana Workers’

Compensation Act. For the following reasons, we affirm the trial court’s judgment

dismissing the plaintiffs’ personal injury lawsuit against IPCO.

FACTS AND PROCEDURAL HISTORY

On July 9, 2014, Mr. Whotte and his wife, Mrs. Whotte, (collectively

referred to as “Mr. Whotte”) filed a personal injury lawsuit against IPCO seeking

damages and loss of consortium respectively. Mr. Whotte claimed he sustained

chemical burns to his feet and ankles while he was constructing scaffolding inside

a “recovery boiler” at the IPCO Campi Mill in Natchitoches Parish.

The mill manufactures paper products. The paper manufacturing process

requires the use of a recovery boiler to capture by-products. Once a year, IPCO is

required to shut down the recovery boiler for maintenance, which includes cooling,

washing, and testing the integrity of the component parts. Every five years, IPCO

is required to conduct a more extensive cleaning, maintenance, and testing of the

recovery boiler to maintain it in safe working order. This extensive five year

maintenance work requires the building of scaffolding inside the recovery boiler.

The scaffolding allows other IPCO sub-contractors and specialty companies

charged with hydroblasting, conducting nondestructive testing, and inspection of

the floor tubing to complete the required inspection process.

Mr. Whotte was an employee of Turner Industries Group, L.L.C (Turner),

one of the IPCO subcontractors hired to complete the maintenance work on the

recovery boiler. In preparation for another subcontractor to begin the inspection of

the floor tubing, Mr. Whotte began construction of the scaffolding inside the

recovery boiler. Almost immediately, he began to experience his feet burning,

which prompted his exit from the recovery boiler and his immediate transport to

the emergency room for treatment of chemical burns on his feet and ankles.

IPCO filed a motion for summary judgment seeking to dismiss both claims

on the ground that it was immune from tort liability under the Louisiana Workers’

Compensation Act. A 2009 contract between Turner, Mr. Whotte’s direct

employer, and IPCO was extended to 2012 and identified IPCO as Mr. Whotte’s

statutory employer. In addition to the 2009 contract, extended to 2012, a 2012

purchase order specifically authorizing Turner’s work on the recovery boiler on the

day of the accident contained language classifying Mr. Whotte as a statutory

employee of IPCO.

At the hearing on IPCO’s motion for summary judgment, the trial court

reviewed the memoranda submitted by counsel and after oral argument, rendered

reasons for ruling on the record. The trial court found that Mr. Whotte was the

statutory employee of IPCO at the time of the accident and dismissed the claims of

Mr. and Mrs. Whotte with prejudice. A judgment memorializing the trial court’s

reasons for ruling was signed on September 26, 2014, and timely appealed by the

Whottes.

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ASSIGNMENT OF ERROR

On appeal, the Whottes assert the following assignment of error:

The trial erred by granting International Paper’s motion for
summary judgment because the contract on which IP relies to
establish tort immunity as a statutory employer has none of the
required hallmarks justifying immunity. Instead, the contract itself
violates the Louisiana Worker’s Compensation Act since, on the one
hand, it seeks to establish IP as a statutory employer, but on the other
seeks to completely shield IP from any liability or responsibility as an
employer. The contract, if implemented as IP suggests and as ordered
by the trial court, would violate not only the Louisiana Worker’s
Compensation Act but applicable provisions of the Louisiana
Constitution.

LAW AND DISCUSSION

Standard of Review

It is well settled that Louisiana appellate courts review summary judgments

de novo, applying the same standard to the matter as that applied by the trial court.

See Smitko v. Gulf S. Shrimp, Inc., 11-2566 (La. 7/2/12), 94 So.3d 750. The trial

court is required to render summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions, together with the affidavits, if any,

admitted for purposes of the motion for summary judgment, 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)(2). Although amended multiple times over

the last three years, summary judgment proceedings are favored by law and

provide a vehicle by which “the just, speedy, and inexpensive determination of an

action may be achieved.” La.Code Civ.P. art. 966(A)(2).

In 1997, the legislature enacted La.Code Civ.P. art. 966(C)(2), which

clarified the burden of proof in summary judgment proceedings and provides:

The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant’s

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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 that there is an absence of factual support for
one or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual
support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of
material fact.

When a motion for summary judgment is made and supported, the adverse

party may not rest on the allegations or denials of his pleadings, but must set forth

specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art.

967(B). “A fact is ‘material’ when its existence or nonexistence may be essential

to [a] plaintiff’s cause of action under the applicable theory of recovery.” Smith v.

Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751.

“[F]acts are material if they potentially insure or preclude recovery, affect a

litigant’s ultimate success, or determine the outcome of the legal dispute.” Id.

(quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir. 1991), writ

denied, 596 So.2d 211 (La.1992)).

In determining whether a fact is material, we must consider the substantive

law governing the litigation. See Davenport v. Albertson’s, Inc., 00-685 (La.App.

3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La. 3/23/01), 788 So.2d 427.

The substantive law governing this litigation requires the examination of the

provisions of La.R.S. 23:1032 and La.R.S. 23:1061, which provide the

requirements for a finding of statutory employer status.

Applicable Law

Louisiana Revised Statutes 23:1032(A)(1)(a) provides that, with the

exception of intentional acts, the remedies provided to a worker under the

Louisiana Workers’ Compensation Act are “exclusive of all other rights, remedies,

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and claims for damages . . . against his employer, or any principal or any officer,

director, stockholder, partner, or employee of such employer or principal, for said

injury, or compensable sickness or disease.” (Emphasis added.)

Louisiana Revised Statutes 23:1032(A)(1)(b) discusses the exclusivity of

workers’ compensation and the concept of the statutory employer, and states,

“[t]his exclusive remedy is exclusive of all claims, including any claims that might

arise against his employer, or any principal or any officer, director, stockholder,

partner, or employee of such employer or principal under any dual capacity theory

or doctrine.” (Emphasis added.) Louisiana Revised Statutes 23:1032(A)(2)

defines a principal:

For purposes of this Section, the word “principal” shall be
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 person for the execution thereof.

(Emphasis added.)

Louisiana Revised Statutes 23:1061 discusses the protections afforded to a

“principal” and provides:

A.(1) Subject to the provisions of Paragraphs (2) and (3) of this
Subsection, when 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; 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,

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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.

(Emphasis added.)

In Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall

Authority, 02-1072, pp. 5-6, (La. 4/9/03), 842 So.2d 373, 377-78 (footnote

omitted)(citations omitted), the supreme court explained the reason for the

legislative creation of the statutory employer doctrine:

Workers’ compensation legislation was enacted in the early
decades of the twentieth century, not to abrogate existing tort
remedies that afforded protection to workers, but to provide social
insurance to compensate victims of industrial accidents because it was
widely believed that the limited rights of recovery under tort law were
inadequate to protect these individuals. The legislation reflects a
compromise between the competing interests of employers and
employees: the employer gives up the defense it would otherwise

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enjoy in cases where it is not at fault, while the employee surrenders
his or her right to full damages, accepting instead a more modest
claim for essentials, payable regardless of fault and with a minimum
of delay.

The legislatures that adopted the early workers’ compensation
acts feared that employers would attempt to circumvent the absolute
liability those statutes imposed by interjecting between themselves
and their workers intermediary entities which would fail to meet
workers’ compensation obligations. To assure a compensation
remedy to injured workers, these legislatures provided that some
principals were by statute deemed, for purposes of liability for
workers’ compensation benefits, the employers of employees of other
entities. The legislative approaches to what is commonly referred to
as the “statutory employer” doctrine varied.

Louisiana adopted a broad version of the statutory employer
doctrine. The Louisiana Act expressly extends the employer’s
compensation obligation and its corresponding tort immunity to
“principals.”

Under the cited provisions of the Louisiana Workers’ Compensation Act, for

IPCO to be considered Mr. Whotte’s statutory employer, the contract between

IPCO, as “principal,” and Turner, as Mr. Whotte’s “immediate employer,” must

contain language which “recognizes the principal as a statutory employer.” See

La.R.S. 23:1061(A)(3).

Contractual Relationship Between IPCO and Turner

In support of its motion for summary judgment, IPCO submitted the

affidavit of Kim Sanders, IPCO’s Purchasing & Stores Manager. Ms. Sanders’

affidavit identified as “true and correct” copies of the February 19, 2009 contract

between IPCO and Turner (2009 Contract), the Amendment to the 2009 Contract

dated December 9, 2011, extending the term of the 2009 Contract from December

31, 2011, to May 31, 2012, (2009 Contract/2012 Extension), and the Purchase

Order #6293222 dated March 12, 2012, which specifically hired Turner to erect the

scaffolding in the recovery boiler (2012 Purchase Order).

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The pertinent portions of each of the documents identified in Ms. Sanders’

affidavit are cited below. In each document, IPCO is designated as the

COMPANY and Turner is designated as the CONTRACTOR:

The 2009 Contract Extension terminating on May 31, 2012 stated:

ARTICLE 3: INDEPENDENT CONTRACTOR: . . . COMPANY and
CONTRACTOR (as direct employer) agree that it is their intention to
recognize COMPANY as the statutory employer of
CONTRACTOR’s employees while CONTRACTOR’s employees are
providing work for COMPANY under the Agreement and hereby
confirm that COMPANY is the statutory employer of
CONTRACTOR’s direct and statutory employees pursuant to La. R.S.
Section 23:1061(A)(3). COMPANY and CONTRACTOR
acknowledge that the services required of CONTRACTOR under this
AGREEMENT (and all such predecessor agreements) are part of
COMPANY’s trade, business or occupation and are an integral part of
and/or essential to COMPANY’s ability to generate its goods,
products, and services.

....

ARTICLE 5: COSTS TO BE REIMBURSED: COMPANY shall
reimburse CONTRACTOR for all reasonable costs paid directly by
CONTRACTOR and incurred in the proper completion of the work,
including the following costs. . . .

....

(j.) Premiums on insurance policies required by this
AGREEMENT. The cost for these premiums is that which is included
in the cost plus labor breakdown sheets.

ARTICLE 9. INSURANCE-HOLD HARMLESS-CLAIMS:

1. Insurance to be carried by CONTRACTOR. During the term of
the AGREEMENT, CONTRACTOR shall maintain primary
insurance coverage listed below with insurers satisfactory to the
COMPANY:

(a) Workers’ Compensation and Employer’s Liability. Workers’
Compensation as required by statute, and if applicable, liability under
the Federal Longshoremen and Harbor Workers Act[,] the Death on
the High Seas Act[, and] Jones Act”). . . .

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2. COMPANY Named as an Additional
Insured/CONTRACTOR’S Insurance Certificates. CONTRACTOR
shall cause COMPANY to be named as an Additional Insured under
CONTRACTOR’ S Commercial General Liability insurance required
under this AGREEMENT, and certificate(s) (to be followed by
endorsement(s) to the policy by the carrier(s)) evidencing this fact
shall be submitted to COMPANY and must be approved by
COMPANY before work commences under this AGREEMENT. . . .
COMPANY shall be named as additional insured and granted waiver
of subrogation to the extent necessary to provide coverage under
CONTRACTOR’S insurance for the liabilities assumed by
CONTRACTOR under the indemnity provisions of this agreement.

3. INDEMNITY. . . . If any person makes a claim for any such
damage or injury (including death resulting therefrom) as herein
above described, the CONTRACTOR agrees to indemnify and save
harmless the COMPANY, its agents, servants and employees from
and against any and all loss, damage, injury or expense including
reasonable attorney’s fees that the COMPANY may sustain as a result
of any such claims, and the CONTRACTOR agrees to assume, on
behalf of the COMPANY, the defense of any action at law or in
equity, which may be brought against the COMPANY upon such
claim and to pay on behalf of the COMPANY upon its demand, the
amount of any judgment that may be entered against the COMPANY
in any such action. . . .

The 2012 Purchase Order dated March 12, 2012, #6293222, hired Turner to

erect scaffolding in the recovery boiler. The 2012 Purchase Order confirmed that

the scaffolding in the recovery boiler provided by Turner, the Contractor, was

essential to IPCO’s, the Company’s, ability “to generate its goods, products, and/or

services,” and provided:

IT IS FURTHER AGREED between COMPANY and
CONTRACTOR that the work being performed by CONTRACTOR
is part of COMPANY’s trade, business, or occupation, and the work
performed by CONTRACTOR pursuant to this agreement is an
integral part of and essential to the ability of COMPANY to generate
its goods, products, and/or services. Accordingly, pursuant to La.
R.S. 23:1061, COMPANY is the statutory employer of
CONTRACTOR’s employees, including either direct or statutory
employees, performing work under this agreement.

The affidavit of Bill Landry, the Senior Project Manager at IPCO’s Campti

Mill, was submitted by IPCO in connection with the 2012 Purchase Order. Mr.

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Landry attested that the scaffolding Mr. Whotte was building at the time of the

accident was essential to the required inspection and cleaning process, without

which IPCO’s ability to generate its paper products would be adversely affected.

Application of Louisiana Revised Statutes 23:1032(A)(2) and Louisiana Revised

Statutes 23:1061

In its reasons for ruling, the trial court found that at the time of the accident,

IPCO was the statutory employer of Mr. Whotte. The trial court’s ruling was

based on the contracts between IPCO and Mr. Whotte’s employer, Turner, which

specifically named IPCO as a statutory employer of the Turner employees,

including Mr. Whotte. The contracts also explicitly stated that work performed by

Turner under the contracts, including the 2012 Purchase Order, was an “integral

part of and essential to the ability of [IPCO] to generate its goods, products, and/or

services.” The trial court determined that the initial 2009 Contract/2012 Extension

and the 2012 Purchase Order for the scaffolding construction that resulted in Mr.

Whotte’s injuries comported with the requirements necessary in La.R.S.

23:1032(A)(2) and La.R.S. 23:1061 to create the presumption that IPCO, as a

“principal,” was Mr. Whotte’s statutory employer.

Mr. Whotte’s Opposition

In opposition to IPCO’s motion for summary judgment, Mr. Whotte argued

that the contracts between IPCO and Turner “violate the requirements of the

Louisiana Workers’ Compensation Act since, on one hand, it seeks to establish IP

[IPCO] as a statutory employer, but on the other seeks to completely shield IP

[IPCO] from any liability or responsibility as an employer.”

First, under the terms of the contracts at issue, plaintiffs argue IPCO did not

have an obligation to pay workers’ compensation benefits to Mr. Turner.

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However, paragraph (j) contained in the 2009 Contract provided that the cost of the

premiums for the workers’ compensation insurance coverage afforded by Turner to

Mr. Whotte would be reimbursed by IPCO to Turner. Therefore, IPCO was

contractually obligated to pay the premiums for the workers’ compensation

benefits paid to Mr. Whotte by Turner.

Second, Mr. Whottle argues that IPCO is not allowed to make a claim for

contractual indemnification from Turner for the payments made to him. Louisiana

Revised Statutes 23:1031(B) clearly provides the opposite is true:

In case any employee for whose injury or death payments are
due is, at the time of the injury, employed and paid jointly by two or
more employers subject to the provisions of this Chapter, such
employers shall contribute to such payments in proportion to their
several wage liabilities to the employee; but nothing in this Section
shall prevent any arrangement between the employers for different
distribution, as between themselves, of the ultimate burden of such
payments. If one or more but not all the employers are subject to this
Chapter, then the liability of such of them as are so subject shall be to
pay that proportion of the entire payments which their proportionate
wage liability bears to the entire wages of the employee; but such
payment by the employers subject to this Chapter shall not bar the
right of recovery against any other joint employer.

(Emphasis added.)

In Stewart v. Boh Bros. Construction. Co., 13-193, pp. 6-7 ( La.App. 5 Cir

10/9/13), 128 So.3d 398, 402, the fifth circuit affirmed the application of La.R.S.

23:1031(B) and provided:

Neither 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.” La.R.S. 23:1033. However, the
statutory employer and the direct employer are not prohibited from
contracting as between themselves rights of contribution or
indemnification. See, e.g., La.R.S. 23:1031(B) and 1063 (A).

(Other citations omitted.)

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Plaintiffs urge the application of Prejean v. Maintenance Enterprises, Inc.,

08-364 (La.App. 4 Cir. 3/25/09), 8 So.3d 766, writ denied, 09-892 (La. 6/26/09),

11 So.3d 496. Prejean, however, was distinguished in Stewart, 128 So.3d at 403,

which stated that “contractual language that only modifies the obligations or

regulates the rights and responsibilities among the obligors (the statutory and direct

employers) as between themselves, but not towards the obligee, the injured worker,

is permissible.”

Also cited in support of Mr. Whotte’s position was Smith v. Brown, 11-1749

(La.App. 1 Cir. 8/15/12), 97 So.3d 1186, writ denied, 12-15 (La. 11/16/12), 102

So.3d 39. The Smith case is factually distinguishable from the facts of this case, as

discussed in Stewart, 128 So.3d at 404, which provided:

In Smith, the claimant, an employee of Formosa, received workers’
compensation benefits from his direct employer, Formosa, after being
injured in a workplace accident at Formosa caused in part by the
actions of Brown, the employee of a contract labor provider, Harmony.
Smith sued Brown and Harmony in tort; Formosa and its workers’
compensation carrier intervened in the suit to recover, under the
indemnity provision in the contract between Formosa and Turner
relied upon by plaintiff here, all workers’ compensation benefits
Formosa paid to Smith, Formosa’s own direct employee. Smith later
voluntarily dismissed his claims against Brown and Harmony’s
successor, Turner, with prejudice, leaving only the intervention claim
outstanding. On Brown and Turner’s motion for summary judgment,
the court granted the motion, dismissing Formosa’s intervention,
finding the indemnity provision in the contract between Formosa and
Turner against public policy, because if enforced under these facts, it
shielded Formosa, the employer, from liability for workers’
compensation benefits to its own direct employee.

Thus, based on its facts, Smith is distinguishable from the facts and

contractual language in this case. The similar contract language and facts of

Stewart provide that IPCO and Turner were allowed under the terms of the

applicable statutes and jurisprudence to agree that Turner would indemnify IPCO

as the principal for any compensation paid to Mr. Whotte without jeopardizing

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IPCO’s statutory employer status. The trial court correctly determined the

presumption contained in La.R.S. 1061(A)(3) was applicable, and IPCO qualified

as Mr. Whotte’s statutory employer based on the language in the contracts between

IPCO and Turner.

Louisiana Revised Statutes 23:1061(3)

The presumption of IPCO’s statutory employer status may only be overcome

“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.”

La.R.S. 23:1061(3)

In order to defeat IPCO’s motion for summary judgment, Mr. Whotte was

required to present evidence that his work as a “carpenter” had no connection to

IPCO’s business of manufacturing paper products. In his deposition, Mr. Whotte

admitted that the “recovery boiler” fueled the IPCO plant and required cleaning for

the boiler to function properly. The explanation of the IPCO cleaning process,

documented in the affidavit of Mr. Landry, provided that the scaffolding

constructed by Mr. Whotte was required to allow access to the boiler for the crews

to perform the necessary cleaning operation and to inspect the tubing on the boiler

floor.

The trial court correctly determined that no evidence was presented in

opposition to IPCO’s motion for summary judgment sufficient to overcome the

presumption that IPCO was Mr. Whotte’s statutory employer. Without the

necessary evidentiary support for his arguments, Mr. Whotte would not be able to

carry his burden at trial. Based on the foregoing, we affirm the trial court’s

judgment dismissing with prejudice the claims of Garred and Megan Whotte.

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Constitutionality of Louisiana Revised Statutes 23:1061(A)(3)

The trial court also found in its reasons for judgment that the relevant

portions of La.R.S.23:1061(A)(3) were constitutional based upon the holding in the

fifth circuit case of Johnson v. Motiva Enterprises, LLC, 13-305 (La.App. 5 Cir.

10/30/13), 128 So.3d 483, writ denied, 13-2791 (La. 2/14/14), 132 So.3d 966. In

Johnson, the court held that the 1997 statutory amendment, Subpart (A)(3)

effective June 17, 1997, was constitutional. However, this issue is not before us on

appeal. The trial court’s Judgment of September 26, 2014 contains no ruling on

the constitutionality of La.R.S. 23:1061(A)(3), and this court’s review is limited to

the judgment of a trial court. Woodley v. Lucksinger, 09-571 (La. 4/1/11), 61

So.3d 507.

CONCLUSION

For the foregoing reasons, the trial court’s September 26, 2014 judgment

dismissing the claims of Garred Whotte and Megan Whotte against International

Paper Company is affirmed. All costs on appeal are assessed to Garred Whotte

and Megan Whotte.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-362

GARRED WHOTTE, ET AL.

VERSUS

INTERNATIONAL PAPER COMPANY

COOKS, J., concurring.

I agree with the majority that plaintiffs’ argument asserting his work as a

carpenter had no connection to IPCO’s business is without merit. The scaffolding

constructed by Mr. Whotte was required to access the boiler to perform the

necessary cleaning process.

However, I find it of particular relevance that IPCO’s contract releases IPCO

pursuant to its indemnity provision from responsibility for the payment of

“compensation claims” filed by Turner’s employees. Specifically, Article 9 of

IPCO’s contract contains a broad indemnity provision, which reads as follows:

The CONTRACTOR assumes the defense and the entire
responsibility and liability for any and all damage or injury of any
kind or nature whatsoever (including resulting death) to all persons,
whether employed by the CONTRACTOR or otherwise. . . If any
person makes a claim for any such damage or injury (including death
resulting therefrom) as hereinabove described, the CONTRACTOR
agrees to indemnify and save harmless the COMPANY, its agents,
servants and employees from any and all loss, damage, injury or
expense including reasonable attorney fees that the COMPANY may
sustain as a result of any such claims, and the CONTRACTOR agrees
to assume on behalf of the COMPANY, the defense of any action at
law or in equity which may be brought against the COMPANY upon
such claim and to pay on behalf of the COMPANY upon its demand,
the amount of any judgment that may be entered against the
COMPANY in any such action. In any suit or claim by COMPANY,
CONTRACTOR hereby expressly waives any immunity from suit by
COMPANY which might otherwise be conferred by the workers
compensation laws of any jurisdiction in which may preclude
enforcement of the indemnification clause of the agreement by

COMPANY, and CONTRACTOR further agrees to pay any
reasonable attorney’s fees incurred by the COMPANY in securing
compliance with the provisions of this indemnification agreement . . .
This article of the contract effectively puts all responsibility on Turner. I do not

find the policy behind La.R.S. 23:1061 allows the principal to force the

subcontractor to indemnify the principal for its own negligence. Statutory

employer status should not be given where the entire burden of responsibility is

placed on the subcontractor, contrary to the statute which places liability on the

principal who seeks the benefit of the Act. The claimant argues to be a statutory

employer the principal must accept responsibility, but in this case that

responsibility is specifically contracted out and the responsibility placed solely on

the subcontractor, even for the clear negligence of IPCO, the principal. Section B

of La.R.S. 23:1061 states that you can only seek indemnity from a responsible

party, but IPCO’s contract allows it to seek indemnity from the subcontractor who

is not responsible for the accident. However, whether the principal can force the

subcontractor to indemnify it for its own negligence is a question which can only

be raised by the subcontractor – only the principal and subcontractor are parties to

the contract and the “terms” in it that may be contrary to the Act do not defeat the

claimant’s right to assert his claim directly against the principal. For this reason, I

will concur in the result reached by the majority.