TUCKER L. MELANCON, United States Magistrate Judge.
Before the Court are cross motions for summary judgment filed by defendant, CITGO Petroleum Corporation ("CITGO") [Rec. Docs. 24; 25] and by plaintiff, Jimmy Blakely, [Rec. Docs. 32; 33]; plaintiff's oppositions [Rec. Docs. 30; 31] and defendant's replies [Rec. Docs. 38; 39]. For the reasons that follow, CITGO's motions will be granted.
In this personal injury action, plaintiff Jimmie Blakely seeks tort remedies for an accident which occurred while he was employed by R & R Construction, Inc. ("R & R") at the CITGO Petroleum Corporation refinery ("the refinery"), located on the Calcasieu River and along Highway 108, just south of Sulphur, Louisiana, in Calcasieu Parish. The refinery uses crude oil to make gasoline, diesel, and other petrochemical products.
On or about June 19, 2006, an unexpected heavy rain event resulted in the release of waste water and oil into a secondary containment area from two tanks in the Waste Water Treatment Plant at CITGO's refinery ("WWTP"). The spill material released into the secondary containment area of the WWTP and eventually escaped into the Indian Marais and Calcasieu Estuary through a junction box that had been constructed by R & R Construction, Inc. Plaintiff, Jimmie Blakely, was employed by R & R as a multi-craft employee to work in the WWTP prior to and during the cleanup of the spill.
On June 19, 2009, R & R assigned plaintiff to work on a crew that was involved in cleaning up the spill. The cleanup of the spill lasted several weeks. Prior to and throughout the period of the spill cleanup, R & R was working for CITGO pursuant to a Master Service Agreement. Plaintiff alleges that during the time he was cleaning up the spill, he was exposed to "toxic and hazardous materials released by CITGO" resulting in his personal injuries and damages. R. 1.
Plaintiff filed a Petition in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana on August 6, 2009. R. 1, Exhs. A, B. In his Petition, plaintiff alleged that he suffered personal injury which was caused by his alleged exposure to chemicals during an oil spill from CITGO's Lake Charles Refinery in June 2006. Id. Plaintiff further alleged that CITGO is liable for his injuries under Louisiana Civil Code articles 667, 2298, and 2315. CITGO removed the action to this Court on August 19, 2009 asserting diversity jurisdiction under 28 U.S.C. § 1332. Id. On July 15, 2010, CITGO filed the motions before the Court, which are unopposed, asserting: (1) CITGO is entitled to a rebuttable presumption that it is plaintiff's statutory employer, and therefore immune from this tort action, [Rec. Doc. 24]; and, (2) plaintiff's claims against CITGO should be dismissed because plaintiff's alleged exposure to chemicals released from the refinery was not the cause of his alleged injuries [Rec. Doc. 25].
A motion for summary judgment shall be granted if the pleadings, depositions and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir.1994)(en banc). Initially, the party moving for summary judgment must demonstrate the absence of any genuine issues of material fact. When a party seeking summary judgment bears the burden of proof at trial, it must come forward
CITGO filed two motions for summary judgment contending: (1) plaintiff's action must be dismissed under Louisiana tort law because he has no evidence which proves a causal relationship between his injuries and CITGO's alleged conduct; and (2) CITGO is entitled to a rebuttable presumption that it is the statutory employer of plaintiff and therefore is immune from this action in tort. The Court will address the motions as follows:
Plaintiff alleges in his Petition that during clean-up of the spill, he was "exposed to and inhaled dangerous levels of the toxic and hazardous materials released by CITGO" and that "as a result of being exposed to and inhaling these chemical, he suffered personal injuries and damages." R. 1, ¶ 11. In particular, plaintiff contends in his opposition to CITGO's motion that he was exposed to "toxins" while assisting with the clean-up of the CITGO spill from June 20, 2006 through December, 2006. He asserts that he was first given safety equipment that included rubber coveralls, boots, Nomex and a dust mask and that he was not given a respirator until 6 hours later. R. 31, Exh. I, 3/9/07 Dr. Arimura Questionnaire, p. C2; Plaintiff's Depo., pp. 103-104. Plaintiff maintains his medical
CITGO argues that plaintiff has tendered no medical or causation expert and fails to point to any scientific evidence establishing that the materials in the CITGO oil spill were capable of causing plaintiff's alleged injuries or that plaintiff was exposed to levels of chemicals that actually caused him harm. CITGO further argues that plaintiff has misapplied the burden of proof in this case by suggesting that CITGO, rather than plaintiff must disprove causation. The Court agrees.
Plaintiff's claims against CITGO are brought pursuant to Louisiana state tort law, and therefore, the Court must apply Louisiana substantive law. Stephens v. Witco Corp., 198 F.3d 539, 541 (5th Cir.1999). In a tort action for personal injury in Louisiana, a plaintiff must establish by a preponderance of the evidence that it is more probable than not that the personal injury of which he complains was caused by the defendant's conduct. Maranto v. Goodyear Tire & Rubber Co., 650 So.2d 757, 759 (La.1995). In exposure cases, such as this one, it is clear that the causation element requires scientific evidence. In Allen v. Pennsylvania Engineering Corp., the Fifth Circuit noted that "[s]cientific knowledge of the harmful level of exposure, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiffs' burden in a toxic tort case." 102 F.3d 194, 199 (5th Cir.1996), (citing Wright v. Willamette Industries, Inc., 91 F.3d 1105, 1107 (8th Cir.1996)).
CITGO also contends that it is entitled the statutory employer of plaintiff and is therefore immune from this action in tort. R. 24. Plaintiff opposes CITGO's motion and argues that the construction and environmental services performed by plaintiff fell outside the scope of the master services agreement between CITGO and R & R (the "MSA"). Plaintiff also contends that the work was not integral to CITGO's business because refineries are not in the "specialized" business of construction and cleanup. In support of his position, plaintiff cites Kirkland v. Riverwood International USA, Inc., 658 So.2d 715 (La.App. 2 Cir. 6/21/95) and Lemaire v. CIBA-GEIGY Corp., 793 So.2d 336 (La.App. 1st Cir. 2001), both of which alleged injuries that occurred before the 1997 amendment of Louisiana's statutory employer law, Louisiana Revised Statute 23:1031. "The 1997 amendments expressly overruled the statutory employer tests in Kirkland.... See 1997 La. Acts, No. 315, § 2.
Here, the work being performed by R & R for CITGO on June 19, 2006 was being done pursuant to a contract between R & R and CITGO ("MSA"). R. 24, Exh. A, Aff. of Roy White; Exh. B, Aff. of Ronald H. Lovett. Prior to the spill, R & R was working on various projects, including plaintiff's work on construction of a third waste water tank. R. 24, Exh. B; Exh. E, Aff. Of Steven S; R. 36, Exh. 1. The MSA contained the following provision:
Thus, the MSA is a written contract between CITGO, as the principal, and R & R, the contractor, wherein CITGO is recognized as the statutory employer of employees of R & R as required by Louisiana Revised Statute 23:1061. Under Louisiana Revised Statute 23:1061(A)(3), once it is determined that a written contract creates a statutory employer relationship, there is a rebuttable presumption that can only be overcome by plaintiff proving that the work he was performing at the time he sustained his injuries was not an integral part of or essential to CITGO's ability to generate its good, products, or services. LSA-R.S. 23:1061(A)(3).
CITGO submits the July 15, 2010 Affidavit of Ray Hill, CITGO's Maintenance Manager. R. 24, Exh. A, Aff. Of Ray Hill. Hill states that all of the work performed by R & R was performed pursuant to the MSA. He further states that all activities performed by R & R at CITGO's refinery—pre-spill and post-spill—were necessary to allow the refinery to operate safely and in compliance with environmental laws. More particularly, Hill represents that CITGO could not market refined products without access to its supply of seaborne crude oil, the essential raw material which was cut off from the refinery pending cleanup of the spill. Thus, Hill maintains, "the activities being performed by R & R, including plaintiff's work to contain and clean-up the spill, are an integral part of and essential to the operation of the refinery and to CITGO's ability to generate its goods, products, and services." Id.
In Armond v. Marathon Oil Corp., 2007 WL 934452, *3 (E.D.La.,2007) (J. Barbier), the plaintiff was completing work pursuant to a service contract between Marathon Oil and The Cajun Company, plaintiff's direct employer, that specified Marathon Oil as plaintiff's statutory employer. Id. When he was injured, plaintiff was working atop a storage tank used to store asphalt in a liquid state such that the asphalt would be marketable. Id. Plaintiff opposed the summary judgment motion arguing that such work was not "integral" to the defendant's ability to generate its product. Id. at *2. The court rejected that argument noting that Louisiana courts have adopted a liberal interpretation of what is integral to a business. Id. at *3 (citing Everett v. Rubicon, Inc., 938 So.2d 1032 (La.App. 1 Cir.,2006)).
Under the controlling legal precedent, the construction and environmental clean-up services provided by R & R are plainly an essential part of operating a refinery. CITGO has provided summary judgment evidence that establishes that the work plaintiff was performing on the date of the incident was an integral part of and essential to CITGO's ability to generate its products. R. 24, Exh. A, Aff. of Ray Hill. Plaintiff has failed to rebut this presumption. Because there are no material facts in dispute and the law compels a conclusion that plaintiff was CITGO's statutory employee, summary judgment should be granted to CITGO.
As the Court finds that plaintiff failed to show a causal link between the CITGO spill and his alleged injuries, the Court need not consider CITGO's motion for summary judgment related to statutory employer. However, even assuming arguendo that plaintiff could prove causation, CITGO is entitled to a rebuttable presumption that it was plaintiff's statutory employer. As plaintiff has failed to rebut this presumption, CITGO is immune from liability in this action. Accordingly, based on the record before the Court, as well as the applicable law and jurisprudence, CITGO's motions for summary judgment as to causation and as to statutory employer will be granted and plaintiff's action will be dismissed.