Eric Mark Allison v. Citgo Petroleum Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-302 consolidated with 18-303

ERIC MARK ALLISON, ET AL.

VERSUS

CITGO PETROLEUM CORPORATION, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2007-2786 C/W 2007-3286
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Candyce G. Perret, Judges.

GREMILLION, J., concurs and assigns written reasons.

PERRET, J., concurs with reasons.

AFFIRMED.

Robert E. Landry
Scofield, Gerard, Pohorelsky, Gallaugher & Landry
901 Lakeshore Drive – Suite 900
Lake Charles, LA 70601
Telephone: (337) 433-9436
COUNSEL FOR:
Defendant/Appellant – CITGO Petroleum Corporation

Kirk Albert Patrick, III
R. Heath Savant
Donahue, Patrick & Scott
450 Laurel Street – Suite 1600
Baton Rouge, LA 70801
Telephone: (225) 214-1908
COUNSEL FOR:
Defendant/Appellee – R & R Construction, Inc.

Wells Talbot Watson
Bagget, McCall , Burgess
P. O. Drawer 7820
Lake Charles, LA 70606-7820
Telephone: (337) 478-8888
COUNSEL FOR:
Plaintiffs/Appellees – Robert D. Marshall, Tamara N. Marceaux, Daron
Christopher Hidalgo, John Thomas Cochran, Gewan Papillion, Alfred
Joseph Carrier, Eric Mark Allison, and Marcus Dwayne Clark

Marshall Joseph Simien, Jr.
Simien Law Firm
2129 Fitzenreiter Road
Lake Charles, LA 70601
Telephone: (337) 497-0022
COUNSEL FOR:
Defendant/Appellant – CITGO Petroleum Corporation

Richard Elliott Wilson
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, LA 70601
Telephone: (337) 436-6611
COUNSEL FOR:
Plaintiffs/Appellees – Gewan Papillion, Eric Mark Allison, Marcus
Dwayne Clark, John Thomas Cochran, Daron Christopher Hidalgo,
Tamara N. Marceaux, Alfred Joseph Carrier, and Robert D. Marshall

Craig Isenberg
Joshua O. Cox
Barrasso Usdin Kupperman Freeman & Sarver, L.L.C.
909 Poydras, Street – 24th Floor
New Orleans, LA 70112
Telephone: (504) 589-9700
COUNSEL FOR:
Defendant/Appellant – CITGO Petroleum Corporation

THIBODEAUX, Chief Judge.

The defendant, CITGO Petroleum Corporation (CITGO), appeals the

trial court’s judgment denying its motion for summary judgment on the issue of

statutory employer immunity. The dispute arose following a release of toxic slop

oil and fumes and wastewater for which CITGO stipulated fault. Finding genuine

issues of material fact and law, we affirm the trial court’s judgment denying

CITGO’s motion for summary judgment.

I.

ISSUES

We must decide whether the trial court erred in denying CITGO’s

motion for summary judgment on the issue of statutory employer immunity.

II.

FACTS AND PROCEDURAL HISTORY

A heavy rainfall on June 19, 2006, flooded CITGO’s waste treatment

facility, and CITGO released toxic slop oil and wastewater into the Calcasieu River

and surrounding waterways. On the same date, CITGO also released toxic fumes,

hydrogen sulfide (H2S) and sulfur dioxide (S02), into the air. It is estimated that

close to 1,000 people filed tort suits in the Lake Charles area based upon injuries

caused by the toxic releases. Trials have been ongoing, and many damages have

been awarded.

In the months following the releases, CITGO hired various local

companies/contractors to clean the oil and sludge from the waterways, exposing

additional workers to the toxic liquid and fumes. On September 19, 2008, CITGO

filed an Admission of Fault for the releases as to “all cases” filed by the law firm

of Baggett McCall and the firm of Cox, Cox, Filo, Camel & Wilson. In the

Admission, CITGO stated that it would “pay plaintiffs for all their compensatory

damages, if any” which they could prove were proximately caused by the releases

on June 19, 2006. The present Plaintiffs were party litigants at the time of the

stipulation of fault.

In December 2016, over ten years after the releases and the initial

cleanup activities, CITGO filed motions for summary judgment in the now-

consolidated suits of Eric Mark Allison, et al. v. CITGO Petroleum Corporation, et

al. (Trial Docket No. 2007-2786, Appeal No. 18-302) and Wilvon Allison, el al. v.

CITGO Petroleum Corporation, et al. (Trial Docket No. 2007-3286, Appeal No.

18-303). Therein, CITGO asserted that it was the statutory employer of certain

plaintiffs and was, therefore, immune from tort suits by those plaintiffs. In support

of its motions, CITGO attached partial contracts containing language that it was

the statutory employer of the contractors’ employees.

At the combined hearing on the two above-listed motions for

summary judgment on January 13, 2017, the trial court found the partial contracts

inadmissible and denied CITGO’s motions as to nine plaintiffs. The trial court

mailed the consolidated judgment of denial on February 6, 2017. CITGO did not

seek writs on the judgment. The plaintiffs proceeded to trial on the merits on

damages and causation on February 13, 2017, and a consolidated final judgment

awarding them damages was mailed in December 2017. CITGO did not raise the

issue of statutory immunity at the trial on the merits; nor did it attempt to supply

the missing parts of the contracts.

2

CITGO has now filed a suspensive appeal of the final judgment on

causation and damages as to five plaintiffs working under three contractors, but it

does not appeal any element of the damage awards.1 Rather, CITGO appeals the

earlier ruling denying CITGO’s statutory employer status. The denial of a motion

for summary judgment is an interlocutory judgment which is not subject to appeal.

See La.Code Civ.P. arts. 968, 1841, and 2083. The only remedy is to request the

appellate court to exercise its supervisory jurisdiction by applying for writs.

Louviere v. Byers, 526 So.2d 1253 (La.App. 3 Cir. 1988) (citing Batson v. Time

Inc., 298 So.2d 100 (La.App. 1st Cir.1974)). The thirty-day time period for taking

writs from the February 6, 2017 judgment denying summary judgment is long past.

See Uniform Rules—Courts of Appeal, Rule 4-3.

However, while not addressing this exact procedural posture, where

no part of the final judgment on causation and damages is being appealed, we have

generally held that review of an interlocutory judgment may be obtained by

assigning the issue as error in the unrestricted appeal of the final, appealable

judgment to which it relates. See Boquet v. Boquet, 18-105 (La.App. 3 Cir.

3/21/18), 241 So.3d 1127; Martinez v. Rivet, 16-100 (La.App. 3 Cir. 4/13/16), 190

So.2d 461; Babineaux v. Univ. Med. Ctr., 15-292 (La.App. 3 Cir. 11/4/15), 177

So.3d 1120. Here, where there was no objection to the appeal, we will review the

denial of CITGO’s motion for summary judgment. For the reasons that follow, we

affirm the judgment of the trial court denying summary judgment on the issue of

statutory employer immunity.

1
Gewan Papillion was awarded a total of $24,140.00; Alfred Carrier was awarded
$50,000.00; John Cochran was awarded $46,741.50; Earl Jones was awarded $45,920.00; and
Wilvon Allison was awarded $35,796.58.

3

III.

STANDARD OF REVIEW

Appellate courts review the grant or denial of a
motion for summary judgment de novo, “using the same
criteria that govern the trial court’s determination of
whether summary judgment is appropriate; i.e. whether
there is any genuine issue of material fact, and whether
the movant is entitled to judgment as a matter of law.”
Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d
880, 882; La.Code Civ.P. art. 966(A)(3). The party that
files a motion for summary judgment bears the burden of
proof on the motion. La.Code Civ.P. art. 966(D). If,
however, the moving party will not bear the burden of
proof at trial on the issue addressed in the motion and
points out that there is an “absence of factual support for
one or more elements essential to the adverse party’s
claim, action, or defense[,]” the non-moving party must
then produce evidence showing that a genuine issue of
material fact exists “or that the mover is not entitled to
judgment as a matter of law.” La. Code Civ.P. art.
966(D)(1). If the non-moving party then fails to produce
such evidence, “there is no genuine issue of material
fact[,] and summary judgment will be granted.” Bufkin
v. Felipe’s La., LLC, 14-288, p. 3 (La. 10/15/14), 171
So.3d 851, 854.

Stutes v. Greenwood Motor Lines, Inc., 17-52, p. 5 (La.App. 3 Cir. 11/22/17), 234

So.3d 75, 80 (emphasis added).

IV.

LAW AND DISCUSSION

In these consolidated suits, CITGO contends that the trial court erred

in denying it statutory employer status as to Gewan Papillion, Alfred Carrier, John

Cochran, Earl Jones, and Wilvon Allison, where their direct employers/contractors

had contracts with CITGO stating that CITGO was the statutory employer of the

contractors’ employees. The three contracts at issue are between CITGO and

Miller Environmental Services, Inc. (Miller Environmental), Gulf Services

4

Mechanical, LLC (Gulf Services), and Angelle Concrete, Inc. (Angelle Concrete).2

CITGO contends that it properly submitted the relevant portions of the three

contracts, along with affidavits of CITGO’s representatives, Jamie Boudreaux and

Ray Hill,3 proving CITGO’s statutory employer status, and the trial court erred in

excluding the contracts from evidence. CITGO further contends that Plaintiffs did

not timely object to the incomplete condition of the contracts in their opposition

brief in violation of La.Code Civ.P. art. 966(D)(2).

CITGO further argues that, even if Plaintiffs had objected timely, it

was still error to exclude CITGO’s offerings “since it is plaintiffs’ burden, not

CITGO’s, to demonstrate to the trial court that the [missing portions of the]

contract exhibits which were not offered [by CITGO] contained language which

would somehow affect or change the statutory employer language in the primary

portion of the contracts” (emphasis added). CITGO further contends that Plaintiffs

were working pursuant to contracts giving CITGO statutory immunity from tort,

and that Plaintiffs failed to present “any evidence creating a genuine factual issue

concerning plaintiffs’ status as statutory employees and, thus, CITGO was entitled

to summary judgment.” For the following reasons, we find no merit in any of

CITGO’s contentions.

2
Gewan Papillion, Appeal No. 18-302, worked for Miller Environmental; Wilvon Allison,
Appeal No. 18-303, worked for Gulf Services; Alfred Carrier and John Cochran, Appeal No. 18-
302, worked for Angelle Concrete; and Earl Jones, Appeal No. 18-303, also worked for Angelle
Concrete.
3
Because the motions for summary judgment and the affidavits used by CITGO in both
consolidated suits are substantively the same, we will refer to the motions in the singular and to
the affidavits as singular, but the language and the context will supply the specific description of
the document under review.

5

Timeliness of Plaintiffs’ Objections to Contracts

Before we address the contracts at issue, we will address CITGO’s

assertions regarding the timeliness of Plaintiffs’ objections under La.Code Civ.P.

art. 966(D)(2) (emphasis added), which states:

The court may consider only those documents filed
in support of or in opposition to the motion for summary
judgment and shall consider any documents to which no
objection is made. Any objection to a document shall be
raised in a timely filed opposition or reply memorandum.
The court shall consider all objections prior to rendering
judgment. The court shall specifically state on the record
or in writing which documents, if any, it held to be
inadmissible or declined to consider.

CITGO filed its motions for summary judgment in both consolidated

cases on December 9, 2016. Plaintiffs filed their oppositions in both consolidated

cases on December 29, 2016. In the last paragraph of their opposition briefs in

both cases, Plaintiffs state: “Third, CITGO’s ‘contracts’ are incomplete and

objectionable.” This general objection followed nine pages of specific arguments

on the flaws in CITGO’s position. In particular, in Appeal No. 18-303, in the

portion of the opposition brief regarding Wilvon Allison, he argues the

incompleteness of two specific contracts:

Moreover, the service agreement between Citgo
and Gulf Services Mechanical is four pages. Nowhere in
the four pages of that contract is there a statutory
employer provision. And although the contract
references Exhibits A, C, and D, those exhibits have not
been produced as part of the contract. (See Exhibit 6,
CITGO-Gulf Serv. Indus. LLC 0082- 105). In addition,
Citgo did not produce the entirety of the August 4, 2006,
service contract between Citgo and Gulf Services
Industrial. That contract states that “Exhibits A-1, B-1,
C, Attachment C-1, Attachment C-3, Exhibits E, F, J, M,
N and Attachment G attached hereto are a part of this
contract as is Company’s Contractor’s Manual (Latest
Edition) by reference.” Id. None of those exhibits or

6

attachments were produced. Thus, there is no written
contract as required by law.

Thus, Plaintiffs’ objections to the incomplete condition of CITGO’s

contracts were raised in timely filed oppositions in compliance with La.Code

Civ.P. art. 966(D)(2). There is no merit to CITGO’s assertion regarding

timeliness.

Affidavits

The affidavits of Ray Hill, dated December 8, 2016, state that he is

CITGO’s current Manager of Health, Safety, Security and Environmental

Protection at the Lake Charles refinery. He attests that CITGO supplements its

workforce as needed “by contracting with companies like” Miller Environmental,

Gulf Services, and Angelle Concrete for construction, maintenance, and the

remediation of environmental releases. He further attests that the work and

materials supplied by these contractors were necessary to maintaining the

refinery’s equipment and safe operations, and that the activities performed by them

were integral and essential to the operation of the refinery. Mr. Hill’s affidavits

briefly mention the spill on June 19, 2006, but they do not reference or attach any

specific contracts or the dates of any contracts with the contractors. Nor do they

reference any provision of any contract or discuss a statutory employment

relationship between CITGO and the employees of the contractors.

The affidavits of Jamie Boudreaux, also dated December 8, 2016,

state that he is CITGO’s Manager of Purchasing and Materials at the Lake Charles

refinery. Mr. Boudreaux’s affidavits provide contract numbers and effective dates

for the contracts, which are ostensibly attached to the affidavits. But the affidavits

7

do not attest to any provision in any contract or to a statutory employment

relationship between CITGO and the employees of any of the three contractors.

Contracts

The controlling law states, in pertinent part:

[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.

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

Miller Environmental

The contract with Miller Environmental 4 as attached to CITGO’s

motion for summary judgment consisted of only one typed page, even though the

estimated cost of service was $5,740,000.00. The contract number was

4504176848, and the effective dates were June 27, 2006, through July 29, 2006.

The bottom of the page was signed by Matt Dartez and Jamie Boudreaux. The

next to last paragraph on the page stated that “Contractor agrees and recognizes

that the Company shall be the Statutory Employer of all Contractor personnel
4
Miller Environmental was Gewan Papillion’s employer. Mr. Papillion points out that
CITGO did not complete the contract with Miller Environmental until July 17, 2006, well after
Mr. Papillion’s exposure began. We note, the record indicates that Mr. Papillion was exposed
the “week after” the spill on June 19, 2006, which would have been roughly June 26, 2006, and
the effective date of the contract was June 27, 2006.

8

assigned to provide Services under this Agreement in accordance with the

requirements of Louisiana Revised Statutes [sic] Section 23:1061A(3).”

The last paragraph on the page stated: “The Contract Exhibits A-1, B-

1, C, C-1, C-2, E, F, J, L, M, N and O attached hereto are a part of this contract as

is Company’s Contractor’s Manual (Latest Edition) by reference.” None of the

exhibits were attached. Mr. Boudreaux’s affidavit stated that a “true and correct

copy of Contract No. 4504176848” was attached. A true and correct copy was not

attached. CITGO argued at the hearing that the exhibits were not relevant, but

even after losing its motion for summary judgment because the contracts were

incomplete, CITGO still did not produce the missing parts at the trial on the merits

a month later. Moreover, we note that CITGO did not obtain an affidavit from

Miller Environmental, the other party to the contract, to identify the contract or to

testify as to the accuracy or intent of the contract.

We decided a case which is factually similar to this case and very

instructive even though it is distinguishable from an evidentiary standpoint. In

Trent v. PPG Industries, Inc., 03-1068 (La.App. 3 Cir. 2/4/04), 865 So.2d 1041,

the plaintiff worked for a contractor, Ron Williams Construction, and was injured

by toxic fumes in the scope of his employment. He sued the project owner, PPG.

PPG filed a motion for summary judgment asserting that PPG was the plaintiff’s

statutory employer pursuant to its contract with the contractor and was immune

from tort liability. Among other arguments, the plaintiff asserted that the contract

was invalid because the addendum containing the language from La.R.S. 23:1061

was inconsistent with the remainder of the contract, using a different format, page

numbering, font style, and title. Because the addendum appeared after several

exhibits, it was not intended to be part of the contract. The trial court found the

9

contract ambiguous and proceeded to determine the intent of the parties, stating as

follows:

The ambiguity in this case is whether the parties
intended the addendum to be a part of the contract. The
title of the addendum is not clear and explicit and
therefore the court must ascertain the common intent of
the parties. La. Civ.Code art. 2045. In this case, the
parties to the contract, PPG and Ron Williams, have
stated via affidavit that the statutory employer provisions
contained in the addendum have always been a part of
the contract incorporated by reference through the
general terms and conditions; incorporation of this
provision was contemplated by the parties and was their
intent. The plaintiff has not provided the court with any
evidence that establishes a genuine issue of fact
concerning the intent of the parties to this contract.
Because the common intent of the parties is
determinative of the interpretation of the contract and no
issue of fact is present as to the intent of these parties,
this court finds that the statutory employer provision is a
valid part of the contract between PPG and Ron
Williams.

Id. at 1045 (emphasis added). The trial court went on to find that the valid contract

created a presumption that the plaintiff failed to rebut after testimony that the work

he did was an integral part of PPG’s business.

On appeal, we affirmed the trial court’s judgment stating:

PPG included, with its motion for summary judgment,
the affidavits of Brandt Smith, the Chief Operating
Officer of RWC, and that of Richard P. Andersen, the
Manager of Purchasing for Defendant, PPG. Both men
professed intimate familiarity with the contract between
their respective companies and both agreed that the
addendum adding the statutory employer provisions to
the contract between the parties was meant to be part of
the contract and reflected the true intent of the parties.

Id. at 1048.

Conversely, in the present case, CITGO did not offer the affidavits of

both parties to the contract, but instead offered only the affidavits of CITGO’s own

10

safety manager, Ray Hill, and CITGO’s own purchasing manager, Jamie

Boudreaux. Moreover, Boudreaux’s affidavit stated that a true copy of the contract

was attached. But CITGO failed to attach a true copy of the full contract, leaving

out twelve exhibits and its contractor’s manual which were incorporated by

reference and described as part of the contract. And, the affidavits of Ray Hill and

Jamie Boudreaux did not address the statutory employer provision at all.

Accordingly, based upon our de novo review and careful examination of the partial

contract proffered by CITGO, we find it inadmissible as summary judgment

evidence.

Angelle Concrete

The contract with Angelle Concrete5 as attached to CITGO’s motion

for summary judgment consisted of a “Blanket Purchase Order Contract,” also

known as “Blanket 261,” with effective dates from 1994 through 1996. Blanket

261 stated that the “Purchase Order Terms and Conditions” attached as Exhibit A,

and the “Blanket Order Instructions” attached as Exhibit B, as well as

“Specifications for Cast-In-Place Concrete” attached as Exhibit C, were part of the

contract by reference. Only Exhibit A was attached; Exhibits B and C were

missing. Thus again, the contract with Angelle Concrete was incomplete as

presented. An attached letter from CITGO in 1998 notified Angelle Concrete that

its “Old Contract Number 261” was changed to “Outline Agreement Number

4600000059” under their newly-implemented system. Another letter from CITGO

dated March 10, 2004, stated that “Outline Agreement Number 4600000059” was

extended for three years with effective dates of April 1, 2004, through March 31,

5
Angelle Concrete was the employer of Alfred Carrier, John Cochran, and Earl Jones.

11

2007. The new effective dates and contract number corresponded with Jamie

Boudreaux’s affidavit, which stated that he was attaching

a true and correct copy of Outline Agreement Contract
No. 46000000059 entered into in 1994 by Angelle
Concrete, Inc. and CITGO for the delivery of “concrete,”
“admixtures” and “pumper truck services.” The contract
was renewed multiple times, including in 2004 for a
three-year term that would include June and July 2006.

Again, CITGO did not attach a “true and correct copy” of the contract

because it omitted Exhibits B and C of the contract. Exhibit A, “Purchase Order

Terms and Conditions,” consisted of nineteen paragraphs of CITGO’s instructions

to the “Contractor” or “Seller” regarding legal issues such as warranties on goods

and services and indemnification provisions. Paragraph eighteen of Exhibit A

contained the identical language regarding statutory employer status and La.R.S.

23:1061(A)(3) as that found in the Miller Environmental page discussed above.

Exhibit A, however, did not contain dates, signatures, or initials; it did not contain

any of the contract numbers discussed in Jamie Boudreaux’s affidavit above, or

any contract number at all; and it did not contain the name of the party to the

contract, Angelle Concrete, referring only to the “Contractor” or “Seller.”

There is nothing in Exhibit A to tie it to the contract with Angelle

Concrete. Citgo did not obtain an affidavit from anyone at Angelle Concrete to

identify the contract, discuss the intent of the parties, or confirm the statutory

employer relationship in any manner consistent with Trent v. PPG, 865 So.2d

1041. And Jamie Boudreaux’s affidavit, quoted above, did not address the

statutory employer provisions in any manner. Accordingly, pursuant to our de

novo review, we have carefully examined the partial contract proffered by CITGO

and find it inadmissible as summary judgment evidence.

12

Gulf Services Industrial

The partial contracts and affidavit submitted by

CITGO concerning Gulf Services Industrial is the most confusing and ambiguous

of all. CITGO’s motion for summary judgment in the Wilvon Allison suit (Trial

Docket No. 2007-2786; Appeal No. 13-303) states as follows (citations to record

omitted) (emphasis added):

Gulf Services Industrial — Wilvon Allison:
Allison was employed as a truck driver at Gulf Services
Industrial for two and a half years beginning in 2004.
One week after the spill, Allison was assigned to an oil
spill clean-up crew at the CITGO LCMC that pressure
washed and squeegeed oil in to a sump and disposed of it
with a vacuum truck. Allison testified that he was
working on cleaning up the oil spill in the dike area
where the spill occurred.

CITGO’s purchasing manager, Jamie Boudreaux, stated in his

affidavit that, attached to the affidavit

is a true and correct copy of Service Contract No.
4504166195 entered into by Gulf Services Industrial
LLC, (“Gulf”), and CITGO for work commencing on
July 6, 2006. The contract provided for “complete
decontamination of [tanks],” including “removal of oil
residue and other work activity.” (Service Contract No.
4504166195, p.1).

The Gulf Services Industrial contract referenced above has an

effective date of July 13, 2006 and was not signed by Gulf Services Industrial until

August 4, 2006. Mr. Allison’s contamination exposure began around June 26,

2006, before the stated commencement date of the contract on July 6; before the

stated effective date of the contract on July 13; and well before the contract was

finalized on August 4. The next-to-last paragraph of the one-and-one-half-page

contract contains the same statutory employer language as the previously discussed

contracts. The last paragraph of the contract states as follows: “The Contract

13

Exhibits A-1, B-1, C, Attachment C-1, Attachment C-3, Exhibits E, F, J, M, N and

Attachment G attached hereto are a part of this contract as is Company’s

Contractor’s Manual (Latest Edition) by reference.” None of these exhibits or

attachments were included as evidence in CITGO’s motion for summary judgment.

Thus, the affidavit of Jamie Boudreaux was not accurate when it stated that a true

and correct copy of the contract was attached.

Compounding matters, CITGO also attached a contract with Gulf

Services Mechanical and stated that it applied to Mr. Allison as well. More

specifically, the affidavit of Jamie Boudreaux (emphasis added) states that,

attached to the affidavit

is a true and correct copy of Service Outline Agreement
Contract No. 4600004645 between Gulf Services
Mechanical, L.L.C. (“Gulf”) and CITGO that was
effective on March 2, 2005 through July 31, 2007. Gulf
Services Mechanical, L.L.C. agreed to perform “Shop
Pipe Fabrication Services ... on a non-exclusive basis on
the premises of [CITGO’s] Lake Charles Manufacturing
Complex.”

CITGO applies this contract to Mr. Allison even though CITGO

stated that Mr. Allison was a truck driver for Gulf Services Industrial from 2004

until he was reassigned to a spill clean-up crew a week after the spill in June 2006.

CITGO asserted that Mr. Allison was assigned under the Gulf Services Industrial

contract to perform cleanup activities using a pressure washer and vacuum truck.

Shop pipe fabrication under the Gulf Services Mechanical contract is difficult to

reconcile with the other facts. Moreover, the Gulf Services Mechanical contract is

also missing Exhibits C and D.

14

Based upon the foregoing, after careful examination of these partial

contracts proffered by CITGO, we find them inadmissible as summary judgment

evidence.

Burden of Proof

CITGO has essentially asserted that it is the plaintiff’s burden of proof

to demonstrate to the court that the missing parts of the contracts in CITGO’s

proffer will negate the portions presented that show statutory employer status. We

disagree. Louisiana Code of Civil Procedure Article 966(D)(1)6 states that if the

moving party does not have the burden at trial on the issue raised by its motion for

summary judgment, then, and only then, must the non-moving party produce

evidence of a genuine issue of material fact or law precluding summary judgment.

As stated in Trent v. PPG, 865 So.2d at 1047 (quoting Maddox v.

Superior Steel, 00-1539, pp. 3-4 (La.App. 1 Cir. 9/28/01), 814 So.2d 569, 571-72

(footnote omitted)):

The initial burden of proof remains with the mover
and is not shifted to the non-moving party until the
mover has properly supported the motion and carried the
initial burden of proof. Only then must the non-moving
party “submit evidence showing the existence of specific
facts establishing a genuine issue of material fact.” See
Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97),
694 So.2d 1189, 1191-1192, writ denied, 97-1551

6
D. (1) The burden of proof rests with the mover. Nevertheless, if the
mover will 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. 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.

La.Code Civ.P. art. 966.

15

(La.9/26/97), 701 So.2d 991. If the non-moving party
fails to do so, there is no genuine issue of material fact,
and summary judgment should be granted. La.Code Civ.
P. arts. 966 and 967.

Here, however, because CITGO’s contracts were found inadmissible

at the hearing on January 13, 2017, when the trial on the merits occurred exactly

one month later in February, CITGO still had the burden of proof on the issue of

the missing parts of the contracts, and CITGO did not produce the missing parts.

Based upon the final judgment and the reasons and supplemental reasons for

judgment, the only issues at trial were causation and damages; neither the issue nor

the contracts pertaining to statutory immunity ever came up at trial. Thus, the

burden or persuasion never shifted to Plaintiffs because CITGO never produced

whole contracts and, therefore, never properly supported its motion or carried its

initial burden of proof.

CITGO’s Stipulation to Fault & Liability for Compensatory Damages

The above analyses are firmly buttressed, if not overridden, by the

fact that for over eight years CITGO did not act as a statutory employer by

indemnifying Plaintiffs in any manner for their exposure to the toxic waste.

Rather, CITGO stipulated to fault in the tort suits on September 19, 2008. On that

date, CITGO filed an Admission of Fault stating that it would “pay plaintiffs for all

their compensatory damages, if any, which plaintiffs are able to prove to the court

were proximately caused by the releases of the materials into the air and waterways

from the CITGO refinery in Calcasieu Parish Louisiana, on or about June 19,

2006.” The admission then stated, “CITGO denies that it is liable for any punitive

damages, and avers that plaintiffs have no cause of action for punitive damages.”

Since each Plaintiff proved his injuries and causation at trial, and was awarded

16

damages for his exposure in 2017, CITGO’s earlier stipulation of fault and promise

to pay all compensatory damages must be examined as a judicial confession that

cannot be revoked. More specifically, La.Code Civ.P. art. 1853 states:

A judicial confession is a declaration made by a
party in a judicial proceeding. That confession
constitutes full proof against the party who made it.

A judicial confession is indivisible and it may be
revoked only on the ground of error of fact.

Likewise, our jurisprudence provides:

A judicial admission or confession is a party’s
express acknowledgment of the correctness of the fact or
the act charged against him by his adversary. First
Homestead Federal Savings and Loan Assoc. v.
Coleman, 446 So.2d 551 (La.App. 3rd Cir.1984). Such a
confession is designed to dispense with evidence and has
the effect of withdrawing the subject matter of the
confession from issue. Jackson v. Gulf Insurance Co., 250 La. 819, 199 So.2d 886 (1967). The stipulation
amounts to full proof against those who made it and
becomes the law of the case and must be enforced.
Lockett v. Home Insurance Company, 413 So.2d 230
(La.App. 4th Cir.1982). It binds all parties and the court
when not in derogation of the law. R.J. D’Hemecourt
Petroleum Co. v. McNamara, 444 So.2d 600 (La.1983),
cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39
(1984). In D’Hemecourt, the court reasoned that
although the argument was made that LSA-R.S. 47:1576
provided an exclusive means to judicially dispute tax
assessments, the effect of the stipulation was to
determine the law of the case and it cannot be revoked.
The instant case is similar to D’Hemecourt in that the
workers’ compensation law provides an exclusive
remedy for the employee against the employer or
principal, yet the principal stipulated to liability in tort.
Therefore, we find that the judicial confession made by
the defendants established the law of the case. The
defendants admitted to liability with only quantum to be
an issue at trial. Since the issue of liability in the action
was one in tort, defendant’s stipulation of liability was
reasonably interpreted by both the court and the plaintiff
as being a stipulation to liability in tort.

17

Davis v. Kreutzer, 93-1498 (La.App. 4 Cir. 2/25/94), 633 So.2d 796, 801, writ

denied, 94-733 (La. 5/6/94), 637 So.2d 1050.

Here, having confessed to liability for all compensatory damages

proved in court, CITGO cannot now appeal on the basis that it does not owe the

compensatory damages proved at trial because of immunity. See La.Code Civ.P.

art. 2085. The only appeal left for CITGO was the appeal of the trial court’s

finding of causation and the amounts of its awards of compensatory damages,

which CITGO has decided not to appeal or assign as error. It cannot now

complain that it did not withdraw the issue in September 2008.

Discovery Violations

Additionally, as articulated by Plaintiffs, CITGO did not timely

respond to Plaintiffs’ 2008 discovery requests for documentation supporting

CITGO’s affirmative defenses. While CITGO argued at the hearing that it had

finally supplemented discovery in October of 2016, Plaintiffs point out:

Citgo did not properly identify the documents it is now
relying on regarding these specific plaintiffs. Plaintiffs
sent Citgo the above Interrogatories and Request for
Production on behalf of each specific plaintiff. If Citgo
wanted to assert statutory employer immunity as a
defense to Mr. Alfred Carrier's claim, it should have
properly identified and produced the entire contract
between Citgo and Angelle Concrete. The same should
have been done for the two other Angelle Concrete
employees, Mr. John Cochran and Mr. Earl Jones. What
Citgo did, however, was effectively a “document dump”
by providing thousands of bates numbers that reference
millions of pages of documents.

Citgo then contends that it produced the specific
contract at issue. However, what Citgo produced is a
haystack, leaving Plaintiffs to look for the needle. This is
improper production of discovery.

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The duty to timely supplement discovery under La.Code Civ.P. art.

1428 is well-settled, and our jurisprudence is replete with examples of sanctions

imposed or exclusion of evidence or testimony due to a negligent or willful failure

to disclose new or requested information. See Buxton v. Evans, 478 So.2d 736

(La.App. 3 Cir.), writ denied, 479 So.2d 921 (La.1985); Louisiana Resources Co.

v. Greene, 406 So.2d 1360 (La.App. 3 Cir. 1981), writ denied, 412 So.2d 84

(La.1982); Maddox v. Bailey, 13-564 (La.App. 1 Cir. 5/19/14), 146 So.3d 590;

Krepps v. Hindelang, 97-980 (La.App. 5 Cir. 4/15/98), 713 So.2d 519; Lodrigue v.

Houma-Terrebonne Airport Com’n, 450 So.2d 1004 (La.App. 1 Cir. 1984).

Likewise, partial contracts withheld for eight years easily fall into the category of

inadmissible evidence under our discovery rules as well.

V.

CONCLUSION

Pursuant to our de novo review, and for all of the foregoing reasons,

the judgment of the trial court denying summary judgment to CITGO on the issue

of statutory immunity is affirmed. Costs of this appeal are assessed to the

defendant, CITGO Petroleum Corporation.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-302 consolidated with 18-303

ERIC MARK ALLISON, ET AL.

VERSUS

CITGO PETROLEUM CORPORATION, ET AL.

GREMILLION, Judge, concurs and assigns the following reasons:

I concur in the result reached in this matter on the basis of CITGO’s stipulation

to fault and liability. I disagree with the majority’s reasoning regarding CITGO’s

motion for summary judgment. The affidavits and attached contracts should not

have been excluded from evidence on the motion for summary judgment. It was not

CITGO’s burden to prove that the omitted portions of the contracts did not address

the statutory employment issue; rather, it became the plaintiffs’ burden to prove that

they did. The contracts should have been admitted and considered on the motion.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-302 consolidated with 18-303

ERIC MARK ALLISON, ET AL.
VERSUS
CITGO PETROLEUM CORPORATION, ET AL.

PERRET, CANDYCE, J. CONCURS WITH REASONS:

I respectfully concur. Although I agree with the majority opinion that “review

of an interlocutory judgment may be obtained by assigning the issue as error in the

unrestricted appeal of the final, appealable judgment to which it relates,” I find that

this court should review the denial of Citgo’s motion for summary judgment on the

issue of statutory employer immunity on the entire record since the case has been

fully tried. As stated by the Louisiana Supreme Court in Hopkins v. American

Cyanamid Company, 95-1088 (La.1/16/96), 666 So.2d 615, 624:

[O]nce a case is fully tried, the affidavits and other limited evidence
presented with a motion for summary judgment--later denied by the
district court--are of little or no value. Appellate courts should not rule
on appeal after a full merits trial on the strength alone of affidavits in
support of a motion for summary judgment that was not sustained in
the district court. In such cases, appellate courts should review the
entire record.

Because Citgo failed to raise the issue of statutory employer immunity at trial and

because it did not attempt to supply the missing parts of the partial contracts

throughout the litigation, I find, based upon my review of the entire record before

us, no merit in Citgo’s assignment of error that the trial court erred in denying its

motion for summary judgment.