Crystal R. Bourque v. Tony Chachere's Creole Foods of Opelousas, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-371

CRYSTAL R. BOURQUE

VERSUS

TONY CHACHERE’S CREOLE FOODS OF OPELOUSAS, INC., ET AL.

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ON APPLICATION FOR SUPERVISORY WRIT FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY
DOCKET NUMBER 18-C-1421-C
HONORABLE ALONZO HARRIS, JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.

JUDGMENT DENYING MOTION FOR SUMMARY JUDGMENT
REVERSED. MOTION FOR SUMMARY JUDGMENT IN FAVOR OF
DEFENDANTS RENDERED.

Thomas J. Eppling
David C. Bernard
Staines, Eppling & Kenney
3500 North Causeway Boulevard, Suite 820
Metairie, Louisiana 70002
(504) 838-0019
COUNSEL FOR DEFENDANTS/RELATORS:
Tony Chachere’s Creole Foods of Opelousas, Inc. and Carl Trahan

Mark G. Artall
Attorney at Law
109 South College Road
Lafayette, Louisiana 70503
(337) 233-1777
COUNSEL FOR PLAINTIFF/RESPONDENT:
Crystal R. Bourque

CONERY, Judge.

Defendants-Relators, Tony Chachere’s Creole Foods of Opelousas, Inc.

(Tony Chachere’s) and Carl Trahan, seek supervisory writs from the trial court’s

judgment denying their motion for summary judgment. Relators asserted therein

that Plaintiff-Respondent, Crystal Bourque, is the borrowed servant of Tony

Chachere’s, and the borrowed co-employee of Mr. Trahan, making her exclusive

remedy one pursuant to the provisions of the Louisiana Workers’ Compensation Act

(LWCA). For the following reasons, we reverse the trial court’s denial of Relators’

motion for summary judgment and render summary judgment in their favor.

FACTS AND PROCEDURAL HISTORY

This action arises out of an injury Plaintiff allegedly sustained within just two

hours of working at Tony Chachere’s warehouse in Opelousas. Plaintiff was hired

by FC Staffing, Inc. (Flexicrew), a labor staffing company, to work at the warehouse.

On her first day of employment, Plaintiff claims her hand was injured when the leg

of a plastic table was closed on top of her fingers by Mr. Trahan.1 Plaintiff went into

the administrative office to seek medical care and allegedly complained about

inappropriate comments made by Mr. Trahan, as well as his inappropriate conduct

towards her.

Plaintiff returned to the plant floor, completed her shift, and returned to work

the rest of the week and part of the next week. After she left Tony Chachere’s

employment, Plaintiff called five times during the following week checking on the

availability of modified duty. She subsequently applied for and was granted

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Greg Dupre, Controller of Tony Chachere’s, described Mr. Trahan’s position as that of
Plant Engineer. In her deposition, Plaintiff described Mr. Trahan as “a maintenance man.”

workers’ compensation disability based on the alleged injury she received to her

hand on her first day of work.

Plaintiff also filed the instant tort suit against Relators, alleging that her injury

was caused by Mr. Trahan’s negligence and that his employer, Tony Chachere’s,

was vicariously liable for Mr. Trahan’s actions. Relators filed a motion for summary

judgment seeking dismissal on the basis that Tony Chachere’s, as Plaintiff’s

borrowing employer, is shielded from tort liability pursuant to the provisions of the

LWCA.

After a July 29, 2020 hearing, the trial court denied Relators’ motion finding

genuine issues of material fact existed as to: (1) whether the time Plaintiff was on

the job—only 45 minutes to an hour-and-a-half before her accident—was a

considerable length of time; (2) whether Tony Chachere’s was Plaintiff’s statutory

employer; (3) whether Plaintiff acquiesced in the new work situation when she had

not yet started working that day and was unaware of how many hours per week she

would work or if she was full time or part time; (4) whether Tony Chachere’s was

classified as a principal under La.R.S. 23:1032; and (5) whether Tony Chachere’s

had a statutory relationship with Flexicrew. Relators now seek review of that

judgment.

LAW AND DISCUSSION

Standard Of Review

Appellate courts review motions for summary judgment de novo, using the

identical criteria that govern the trial court’s consideration of whether summary

judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. The

reviewing court, therefore, is tasked with determining whether, “the motion,

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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.Code

Civ.P. art. 966(A)(3).

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(D)(1).

Borrowed Employee Status

In Perry v. Perry & Sons Vault & Grave Service, 03-1519, p. 8 (La.App. 3

Cir. 5/12/04), 872 So.2d 611, 617, this court enumerated the ten factual inquiries

underlying borrowed employment status:

The factors to be considered when determining whether an
employee is a borrowed servant are: (1) who has the right of control
over the employee beyond the mere suggestion of details or
cooperation; (2) who selected the employee; (3) who paid the
employee’s wages; (4) who had the right to fire the employee; (5) who
furnished the tools and the place to perform the work; (6) was the new
employment over a considerable length of time; (7) whose work was
being done at the time of the accident; (8) was there an agreement
between the borrowing and lending employers; (9) did the employee
acquiesce in the new work situation; and (10) did the original employer
terminate his relationship with or relinquish his control over the
employee. Green v. Popeye’s Inc., 619 So.2d 69 (La.App. 3 Cir.1993).

No single factor is decisive, and no fixed test is used to determine
the existence of a borrowed servant relationship. Trunk [v. Med. Ctr.
of LA at New Orleans, 03-275 (La.App. 4 Cir. 12/17/03)], 863 So.2d

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675 [rev’d, 04-181 (La. 10/19/04), 885 So.2d 534]. However, there is
a presumption that the general employer retains control of his
employee, and the party who alleges that an employee has become a
borrowed servant bears the burden of proving that issue by a
preponderance of the evidence. Harrington v. Hebert, 00-15 (La.App.
3 Cir. 5/23/01), 789 So.2d 649.

In resolving this issue, the totality of the circumstances must be considered.

Harrington, 789 So.2d 649. “While the determination as to whether a borrowed

servant relationship exists has been viewed as a matter of law, it is clear that the

determination is one with underlying factual inquiries.” Barnett v. Meridian Res. &

Expl. Co., 01-1114, p. 4 (La.App. 3 Cir. 2/6/02), 815 So.2d 1016, 1019, writs denied,

02-630, 02-651, 02-676 (La. 5/3/2), 815 So.2d 105, 106, 109.

In support of their motion, Relators alleged it was undisputed that (1)

Flexicrew and Tony Chachere’s had a staffing agreement which permitted Tony

Chachere’s to utilize Flexicrew’s employees, and Plaintiff was hired by Flexicrew

and loaned to work exclusively for Tony Chachere’s at all pertinent times; (2)

Plaintiff did not ask Flexicrew about working anywhere else, she attended an

orientation at Tony Chachere’s on August 31, 2017, and her first day of work was

September 5, 2017; (3) Flexicrew paid Plaintiff’s wages, but Tony Chachere’s paid

Flexicrew for the hourly wage earned by Plaintiff as well as an additional percentage

of the total wages earned; (4) Tony Chachere’s directed the work performed by

Plaintiff, set her schedule, determined the number of hours and days she worked,

provided her equipment, and had the right to dismiss her; (5) Plaintiff’s work was

performed at Tony Chachere’s warehouse; (6) Plaintiff reported to her supervisor at

Tony Chachere’s and had no supervisor to report to at Flexicrew; (7) Flexicrew did

not have a representative present at Tony Chachere’s; and that (8) following the

alleged accident, Plaintiff returned to work at Tony Chachere’s where she finished

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her shift and continued working until September 14, 2017. She then continued to

check back at Tony Chachere’s the following week to see if light duty work was

available before applying for workers’ compensation disability.

In response, Plaintiff conceded that Tony Chachere’s had established that

eight of the ten factual inquiries underlying borrowed employment status weighed

in its favor, but argued that the uncontested facts support a finding in her favor as to

whether the new employment was over “a considerable length of time” and whether

she acquiesced to the work situation. Perry, 872 So.2d 611.

Plaintiff argued that the disputed facts as to the factual issue of acquiescence

included (1) whether she was advised as to the type of job she would do when

assigned to Tony Chachere’s, and whether she was told how many hours per week

she would work, or whether the position would be part time or full time; (2) whether

she knew she could move if she determined she did not like the work environment;

(3) whether she was told at orientation that she would do different things each day

and each week; and (4) whether at the time she was injured, she had begun her work

duties of packaging giftboxes and whether she had the time or opportunity to

evaluate her work environment, personnel, or job duties or decide whether she would

have continued working there.

Discussion of Factors (6) and (9)

Plaintiff conceded eight of the ten factors enunciated in Perry are favorable to

Tony Chachere’s. Only two of the remaining factors are at issue in this case, which

include Factor (6) “was the new employment over a considerable length of time,”

and Factor (9) “did the employee acquiesce in the new work situation[.]” Perry, 872

So.2d at 617. While the facts applicable to these two issues are material, Relators

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aver they are not in dispute. We agree that the length of Plaintiff’s employment was

not considerable, and that the facts surrounding her employment are also undisputed.

Factor (6)—Length of Time of Employment

In Sanchez v. Harbor Constr. Co., Inc., 07-234 (La.App. 4 Cir. 10/3/07), 968

So.2d 783, Mr. Sanchez only worked for the defendant on the day of the alleged

accident. A panel of our sister circuit stated, “One day of employment has been

found not to bar a finding of borrowed servant status.” Id. at 788 (citing Hall v.

Equitable Shipyards, 95-1754 (La.App. 4 Cir. 2/29/96), 670 So.2d 543). Further,

“employments of short duration will generally require a finding of neutrality as to

this factor.” Foreman v. Danos & Curole Marine Contractors, 97-2038, pp. 12-13

(La.App 1 Cir. 9/25/98), 722 So.2d 1, 7, writ denied, 98-2703 (La. 12/18/98), 734

So. 2d 637.

Furthermore, Plaintiff’s case is not the typical borrowed employee situation

wherein an employee working for one company is asked or told to do work for

another company pursuant to a contractual agreement between the companies.

Plaintiff signed on with Flexicrew, the labor staffing agency, specifically to be a

borrowed employee to Tony Chachere’s. Thus, whether Plaintiff was injured on the

first day in the second hour of her employment is of no consequence. She was hired

to work at Tony Chachere’s exclusively. We find this factor does not support

Plaintiff’s position.

Factor (9)—Acquiescence in the Work Situation

The panel in Sanchez, 968 So.2d at 787, stated with respect to Factor (9) “did

the employee acquiesce” in the new work situation as follows:

Although there is no evidence that Mr. Sanchez voiced any
objection to Global regarding his work assignments at the Harbor job

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site, he only worked at Harbor for one day—the day of the accident.
This factor, therefore, is neutral as to Mr. Sanchez’s borrowed servant
status.

We find based on the following undisputed facts surrounding Plaintiff’s

employment, that Factor (9) does not favor Plaintiff’s position. There is no dispute

that Plaintiff agreed to work for Tony Chachere’s exclusively and was instructed by

Flexicrew to report to Tony Chachere’s in Opelousas. Upon her arrival, Plaintiff

attended orientation, accepted the job, and did not ask Flexicrew to place her in

another position. After the alleged accident she continued her work at full duty for

the rest of the day, the remainder of the week and part of the next week. Plaintiff’s

deposition testimony reflects that she made five active attempts to continue working

at modified duty the following week, speaking with, and leaving messages for her

supervisor. She not only acquiesced in her employment, she sought out additional

hours at modified duty from Tony Chachere’s.

Accordingly, considering the totality of the circumstances herein, Plaintiff, as

a matter of law, was a borrowed employee of Tony Chachere’s, having met all ten

enumerated factors in Perry. Relators are entitled to summary judgment in this case.

CONCLUSION

For the foregoing reasons, the trial court’s July 29, 2020 denial of Relators’

motion for summary judgment is reversed. Summary judgment is entered declaring

that Plaintiff-Respondent, Crystal Bourque, was a borrowed employee of Tony

Chachere’s and the borrowed co-employee of Carl Trahan and that Plaintiff-

Respondent’s sole remedy in this case is pursuant to the provisions of Louisiana

Workers’ Compensation Act. All claims of Crystal Bourque against Tony

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Chachere’s Creole Foods of Opelousas, Inc., and Carl Trahan are dismissed with

prejudice. Costs are assessed to Plaintiff, Crystal Bourque.

JUDGMENT DENYING MOTION FOR SUMMARY JUDGMENT
REVERSED. MOTION FOR SUMMARY JUDGMENT IN FAVOR OF
DEFENDANTS RENDERED.

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