GARRETT, J.
The plaintiffs, Ausborn Cleve Grant and Tina Marie Grant, and the intervenor, Louisiana Safety Association of Timbermen-Self Insurers Fund ("Timbermen"), appeal from the trial court's grant of summary judgment in favor of the defendants, Kelly Sneed, Ben Freelon, and Weyerhaeuser Company. The trial court found that the plaintiffs' tort claim was barred because Weyerhaeuser was the statutory employer of Grant, and their exclusive remedy was in workers' compensation. For the following reasons, we reverse and remand for further proceedings.
Weyerhaeuser claimed to have a contract to sell two-by-four lumber to Lumbermen's
On January 17, 2008, Weyerhaeuser entered into a Core Carrier Truckload Motor Carrier contract with Will Transport Company ("Will Transport") to haul lumber from Taylor to Dodson. The contract was signed by Karl Pentecost in his capacity as manager of Will Transport and specified that Will Transport was an independent contractor and the employees of Will Transport were not the employees of Weyerhaeuser.
On January 3, 2005, Will Transport entered into an equipment lease agreement with Dan Varnado, who did business as V & M Trucking, whereby V & M was to lease a truck to Will Transport and was to provide a driver for the truck. The lease specified that Varnado was an independent contractor. Grant worked for V & M and was assigned to drive the truck leased to Will Transport.
On June 19, 2008, Grant drove V & M's truck to the Taylor mill to pick up a load of lumber to transport to Dodson. Kelly Sneed was the forklift operator employed by Weyerhaeuser who loaded loose bundles of lumber onto the truck. After the bundles were loaded, Grant was tying down the load when he alleges that a two-by-four fell, striking him on the left side of the head and shoulder. V & M had workers' compensation insurance with Timbermen. Grant made a workers' compensation claim against V & M, which was paid on its behalf by Timbermen.
On June 2, 2009, Grant and his wife filed suit for personal injury and damages against Weyerhaeuser and Sneed, as well as Ben Freelon, the plant manager at the Taylor mill. They claimed Grant was injured through the negligence of the defendants. His wife asserted a loss of consortium claim. Timbermen filed a petition of intervention, seeking to recover past and future workers' compensation benefits if the plaintiffs were successful in their damage claim against the defendants.
On October 18, 2013, the defendants filed a motion for summary judgment, claiming that Weyerhaeuser was the statutory employer of Grant and the plaintiffs' exclusive remedy was in workers' compensation, under La. R.S. 23:1032(A) and 23:1061. The defendants asserted that the two-contract theory applied, whereby Weyerhaeuser's contract with LMC, its contract with Will Transport to fulfill the LMC contract, and Will Transport's contract with V & M extended immunity from tort to Weyerhaeuser as a principal, regardless of how far removed it was from the direct employer of the injured worker. The defendants also argued that Timbermen's intervention must fall.
The plaintiffs and Timbermen opposed the motion for summary judgment, claiming that Weyerhaeuser did not prove its status as the statutory employer of Grant. At the conclusion of the hearing, the trial court issued this ruling from the bench:
Summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, the movant'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 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 provide 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. La. C.C. art. 966(C)(2).
An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other appropriate summary judgment evidence, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967; Samaha v. Rau, supra.
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup'rs of La. State Univ., 591 So.2d 342 (La. 1991); Lewis v. Coleman, 48,173 (La. App.2d Cir.6/26/13), 118 So.3d 492, writ denied, 2013-1993 (La.11/15/13), 125 So.3d 1108.
Under our de novo review, we find that the trial court erred in granting summary judgment in favor of the defendants. As explained below, we find that the defendants are unable to show that they are entitled to relief as a matter of law or that there are no genuine issues of material fact.
The plaintiffs and Timbermen argue on appeal that, because Grant was the driver for a trucking owner-operator, and under the terms of the contracts between the parties, Weyerhaeuser is not responsible to Grant under Louisiana law for any workers' compensation benefits and, therefore, is not entitled to claim tort immunity. This argument has merit and establishes that Weyerhaeuser is unable to show that it is entitled to a summary judgment as a matter of law. The plaintiffs and Timbermen contend that La. R.S. 23:1021(7) and (10) apply here and specifically exclude the application of the Louisiana Workers' Compensation Act ("LWCA") to this case.
La. R.S. 23:1021(7) provides:
La. R.S. 23:1021(10) specifies:
La. R.S. 23:1021(7) and (10) were added by La. Acts 2004, No. 188, § 1. This legislation and the jurisprudence interpreting it are clearly adverse to the position being taken by the defendants in this matter. Although the cases discussed below arose
In 2008, this court considered the applicability of the new provisions in Hair v. Louisiana Crane & Trucking Co., 43,566 (La.App.2d Cir.9/17/08), 996 So.2d 435. The plaintiff trucker hauled goods for the defendant carrier. In 2005, the business relationship was formalized by a contract which specified that the plaintiff was an independent contractor. The plaintiff was injured hauling a load for the defendant carrier and sought to recover workers' compensation benefits. The defendant filed a motion for summary judgment claiming that workers' compensation benefits were not due because the plaintiff was an independent contractor. This court affirmed the grant of summary judgment in favor of the carrier, finding that La. R.S. 23:1021(7) and (10) applied and there was no employer-employee relationship between the plaintiff and the defendant.
In Council v. FedEx Custom Critical, Inc., 46,558 (La.App.2d Cir.9/21/11), 73 So.3d 461, writ denied, 2011-2332 (La.12/2/11), 76 So.3d 1178, this court again considered the applicability of La. R.S. 23:1021(7) and (10). In that case, the plaintiff signed an independent contractor agreement with SB Transports, which had an agreement for "Leased Equipment and Independent Contractor Services" with FedEx. The agreement between SB Transports and FedEx specified that neither SB Transports nor any of its employees or agents would be considered the employees of FedEx. The plaintiff was injured loading a truck and filed a claim for workers' compensation benefits against SB Transports and FedEx. In affirming the dismissal of the plaintiff's action against FedEx on an exception of no right of action, this court observed that, in enacting La. R.S 23:1021(7) and (10), the legislature intended to override prior law with respect to contract drivers.
Recently, in Bridges v. New Orleans Trucking & Rental Depot, Inc., supra, the plaintiff truck driver drove for Varice James, an owner operator who had an independent contractor agreement with New Orleans Trucking. The plaintiff was injured and filed a workers' compensation claim against James and New Orleans Trucking. New Orleans Trucking asserted that it was not required to pay workers' compensation benefits to the plaintiff because he was an independent contractor. In reversing a judgment awarding workers' compensation benefits, the first circuit considered La. R.S. 23:1021(7) and (10), noting that the legislature has recognized that owner operators, and their drivers, are not employees of the common carrier if the owner operator and the common carrier enter into a written contract that identifies the owner operator as an independent contractor. La. R.S. 23: 1021(7) and (10) precluded the plaintiff's entitlement to workers' compensation benefits from New Orleans Trucking. The first circuit quoted La. R.S. 23:1061 in a footnote, but obviously found it did not apply to the case. See also Course v. Fox Wolff Const., 08-58 (La.App. 5th Cir.5/27/08), 987 So.2d 277, writ denied, 2008-1396 (La.9/26/08), 992 So.2d 992.
In this case, the contract between Weyerhaeuser and Will Transport was entitled "Core Carrier Truckload Motor Carrier Contract (U.S.)" and was signed by the representative of Will Transport on January 17, 2008. The contract specified as follows:
The contract between Weyerhaeuser and Will Transport also contained "Attachment G" dealing with insurance, which specified in pertinent part:
The agreement between Will Transport and Dan Varnado, who did business as V & M Trucking, was executed on January 3, 2005. The agreement was labeled an equipment lease and Varnado was designated an independent contractor. Will Transport agreed to lease a specific truck owned and operated by Varnado and Varnado agreed to furnish, at his cost, a driver to operate the truck.
Will Transport was a common carrier. Varnado, doing business as V & M, was an owner operator and was designated as an independent contractor in the written agreement with Will Transport. Therefore, under La. R.S. 23:1021(10), V & M and Grant, who was a driver provided by V & M, are not employees of Will Transport for purposes of the LWCA.
The plaintiffs and Timbermen have also addressed the defendants' contentions that the two contract theory applies in this matter, making workers' compensation the exclusive remedy available to the plaintiffs in this case. They argue that Weyerhaeuser has not shown that the two contract theory of the LWCA applies in this matter to make Weyerhaeuser the statutory employer of Grant. Our ruling regarding the applicability of the owner operator exclusion, discussed above, may render consideration of this argument moot. Nevertheless, we also note from our de novo review that there are deficiencies in the proof submitted by Weyerhaeuser in support of its motion. These deficiencies also preclude a grant of summary judgment in favor of the defendants.
In some instances, an employer may be the statutory employer of a worker that it does not directly employ. Dugan v. Waste Mgmt., Inc., 45,407 (La.App.2d Cir.6/23/10), 41 So.3d 1263. See also McGinnis v. Waste Mgmt. of La. LLC, 40,330 (La.App.2d Cir.10/26/05), 914 So.2d 612. The exclusive remedy provision of the workers' compensation statute precludes an employee from filing a lawsuit for damages against "his employer, or any principal ... or employee of such employer or principal[.]" La. R.S. 23:1032(A)(1)(a). A "principal" is defined in La. R.S. 23:1032(A)(2) 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." Dugan v. Waste Mgmt., Inc., supra.
La. R.S. 23:1061 provides in pertinent part:
When a defendant invokes the immunity of a statutory employer under La. R.S. 23:1032, it has the burden of proving this immunity. If La. R.S. 23:1061 is being used by the principal as a shield to insulate himself from tort liability, then this takes the form of an affirmative defense as to which the principal has the burden of proof. 13 H. Alston Johnson III, Workers' Compensation Law & Practice (La. Civil Law Treatise) § 126 (5th ed. 2010), pp. 268-269. The statute is strictly construed against the party claiming the immunity. McGinnis v. Waste Mgmt. of Louisiana LLC, supra.
There are two bases for finding statutory employment: (1) being a principal in the middle of two contracts, referred to as the "two contract theory," or (2) the existence of a written contract recognizing the principal as the statutory employer. Dugan v. Waste Mgmt., Inc., supra. The parties in this matter agree there is no written contract recognizing Weyerhaeuser as the statutory employer of Will Transport, V & M, or Grant. The defendants' sole argument is that Weyerhaeuser is a statutory employer under the two contract theory.
Under La. R.S. 23:1061, the two contract theory applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed. Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Auth., 2002-1072 (La.4/9/03), 842 So.2d 373; Dugan v. Waste Mgmt., Inc., supra. The two contract statutory employer status contemplates relationships among at least three entities: a general contractor who has been hired by a third party to perform a specific task, a subcontractor hired by that general contractor, and an employee of the subcontractor. Naiman v. Goldsberry Operating Co., 43,266 (La.App.2d Cir.6/11/08), 987 So.2d 326.
The defendants bore the burden of proving the application of the two contract theory in this case. The first requirement of the theory is that the principal enters into a contract with a third party. Weyerhaeuser claims its agreement with LMC satisfied this requirement. The record does not support this claim. The three-page
Additionally, even if the defendants had proven the existence of a contract with a third party which required that work be performed, the defendants also failed to show that Grant was performing work to fulfill that contract at the time his injury occurred. While there is some indication that Grant hauled primarily between Taylor and Dodson, there is no showing that the lumber involved in this case was to be used in satisfaction of the purported contract with LMC. Therefore, the defendants have failed to establish another element of proof necessary to support their motion for summary judgment.
For the reasons stated above, the trial court erred in granting summary judgment in favor of the defendants, Weyerhaeuser Company, Kelly Sneed, and Ben Freelon, dismissing the claims of the plaintiffs, Ausborn Cleve Grant and Tina Marie Grant, and the intervenor, Louisiana Safety Association of Timbermen-Self Insurers Fund. The matter is remanded to the trial court for further proceedings. Costs in this court are assessed to the defendants.
REVERSED AND REMANDED.
The issue of whether any of the parties are independent contractors so as to exclude application of the exclusive remedy of the LWCA as to the defendants was raised in the trial court in the opposition to the motion for summary judgment. The plaintiffs and Timbermen have simply asserted additional reasoning in support of their argument. One of the cases now cited to this court, Bridges v. New Orleans Trucking & Rental Depot, Inc., 2013-1969 (La.App. 1st Cir.6/27/14), 146 So.3d 288, was rendered after the hearing held below. We note that this matter is before us on appeal from the grant of a motion for summary judgment and our standard of review is de novo. We are obligated to consider all relevant law. The record contains all relevant evidence necessary to evaluate the argument. The defendants had ample opportunity to address the contentions in their brief to this court and in oral argument of this matter. In the interest of justice and judicial economy, we will consider the argument.
