Dennis L. Batte VS Henry "Hank" Lawrence
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1953 G DENNIS L BATTE Gr VERSUS HENRY HANK LAWRENCE JudgmeHt Rendered June 7 2013 Appealed from the Office of Workers Compensation District 6 State of Louisiana Case No 01173 12 The Honorable Gwendolyn F Thompson Workers Compensation Judge Presiding ie A iC k k X if 4 Michael W Whitehead Counsel for Plaintiff Appellant Livingston Dennis L Batte Donnie L Louisiana Floyd Counsel for Defendant Appellee Henry Hank Lawrence Kevon V Howald Prairieville Louisiana BEFORE GUIDRY CRAIN AND THERIOT JJ G J J 4 N THERIOT J Dennis L Batte the claimant appeals the ruling of the Office of Workers Compensation OWC to grant summary judgment in favor of the defendant Henry Hank Lawrence dismissing Mr Batte disputed s claim for compensation with prejudice For the following reasons we reverse and remand FACTS AND PROCEDURAL HISTORY In his disputed claim for compensation Mr Batte claimed he fell from a ladder at Mr Lawrence sresidence on or about September 7 2011 Both parties in this matter submitted sworn affidavits to the OWC Mr s Batte affidavit stated he was employed by Mr Lawrence for approximately one year when he was injured while performing manual labor at Mr s Lawrence private residence The employment according to Mr Batte was by oral contract to perform work and manual labar at Mr Lawrence s residence rental property and office building at the rate of 16 per hour 00 at an average of 30 to 40 hours per week In his disputed claim for compensation Mr Batte described his occupation as carpenter Mr Batte further claimed that Mr Lawrence assigned him various tasks supervised the work and maintained control over the work Mr Batte performed In his affidavit Mr Lawrence admitted that he knows Mr Batte who had done work for him in the past but denied that Mr Batte was his employee at any time Mr Lawrence characterized Mr Batte as an independent contractor who performed work as needed at the various properties that Mr Lawrence owned Mr Lawrence claimed he paid Mr Batte by the job and did not at any time pay him an hourly salary Mr Lawrence further admitted that he was aware of Mr Batte s accident which occurred at his residence Mr Batte was making repairs to 2 the house while standing on a ladder According to the answer Mr Lawrence stated his father informed Mr Batte that the ladder was placed in an unsafe location The ladder was moved but Mr Batte moved the ladder back to the unsafe location and continued working Mr Lawrence heard the ladder fall went to the ladder and found Mr Batte For a few months after the accident Mr Lawrence claimed he gave money to Mr Batte as gifts of assistance but not out of any obligation he felt he owed Mr Batte Mr Batte filed his disputed claim for compensation on February 17 2012 Therein Mr Batte claimed to be employed by Mr Lawrence when he fell from the adder while repairing Mr Lawrence roof and that Mr s Lawrence paid his wages for several weeks after the accident but discontinued the payments in December of 2011 and has refused to pay any of Mr Batte medical bills Mr Lawrence filed a motion for summary s judgment on June 21 2012 alleging there was no genuine issue of material fact that Mr Batte was not his employee at the time of the accident Mr Lawrence also argued he is exempt from liability under Louisiana Revised Statutes 23 The affidavits of Mr Batte and Mr Lawrence were 1 B 1035 the only evidence submitted at the hearing for the motion on summary judgment Based on the evidence the OWC granted the motion far summary judgment The judgment was rendered on July 30 2012 finding that Mr Barte was the employee of a private residential householder who is exempt from workers compensation coverage pursuant to Louisiana Revised Statutes 23 Mr Batte filed a devolutive appeal on September 1 B 1035 26 2012 3 ASSIGNMENT OF ERROR Mr Batte contends the trial court committed manifest error by granting summary judgment and finding that Mr Batte was not the employee of Mr Lawrence thereby excluding him from coverage provided under the Louisiana Warkers Compensation Act STANDARD OF REVIEW The applicable standard of review for an appellate court considering summary judgment is de novo Populis v Home Depot Inc 2007 p 2449 La 2 App 1 Cir 5 991 Sa2d 23 24 writ denied 2008 La 08 2 ll55 08 19 9 992 So 943 A summary judgment shall be rendered if the 2d pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law La C art 966 P B I DISCUSSION Mr Batte was injured while performing roof repairs on Mr s Lawrence private residence No evidence was introduced at the hearing on the motion for summary judgment as to Mr s Batte net earnings Mr Lawrence stated in his affidavit that Mr Batte was paid by the job but offered no dollar figures as to Mr Batte net earnings Mr Batte claimed to s earn 16 an hour working between 30 and 40 hours a week but offered 00 no dollar figures as to his net earnings Mr Batte claimed his salary was for all the wark he did on Mr Lawrence properties not just his private s residence While Mr Lawrence admitted that Mr Batte performed work on all of his properties he denied paying Mr Batte a salary and claimed Mr Batte worked as an independent contractor Taking both affidavits into Although Mr Batte suggests that the standard of review in this matter is manifest error the jurisprudence shows Chat the correct standard of review is de novo 4 account there was an oral agreement between the parties that Mr Batte would perform work and services far Mr Lawrence on his properties On July 30 2012 the trial court signed a final judgment granting Mr smotion for summary judgment and dismissing Mr Batte claim Lawrence s with prejudice In its stated reasons the OWC found Mr Lawrence to be exempt from the requirement of Workers Compensation insurance coverage under La R 23 which states in part S 1035 l B There is exempt from coverage all labor wark or services performed by any employee of a private residential householder in connection with the private residential premises of such householder when the employee annual net earnings for s labor work ar services amounts to one thousand dollars or less and which labor work or services are not incidental to and do not arise out of any trade business or occupation of such householder With respect to such labor work or services and any employee performing the same a private residential householder shall have no liability under the provisions of the Workers Compensation Act either as employer or as a principal Nothing in the record establishes the net earnings of Mr Batte Mr Batte claims he was paid by the hour Mr Lawrence claims Mr Batte was paid by the job Regardless of the method ofpayment the net earnings of the claimant is a genuine issue of material fact that needs to be known when applying La R 23 We find a genuine issue of material fact to S 1035 1 B exist as to the net earnings of Mr Batte If the net earnings of Mr Batte are less than one thousand dollars the statute may be applicable to the defendant if the other criteria are met If the net earnings of Mr Batte are greater than one thousand dollars then the statute is not applicable to the defendant Therefore the OWC erred in granting the motion for summary judgment based on La R 23 S 1035 1 B 5 CONCLUSION One of the criteria needed to determine if an employer falls under the exception of La R 23 is the amount of net earnings the S 1035 1 B claimant has been paid The record is devoid of the net earnings Mr Lawrence paid Mr Batte Far the purpose of this appeal it is immaterial whether Mr Batte was paid by the hour or by the job The crucial issue is the net amount Mr Batte was paid Without evidence of Mr Batte net s earnings we find the OWC legally erred in granting summary judgment based on La R 23 S 1035 1 B DECREE The OWC granting of summary judgment in favar of the appellee s Henry Hank Lawrence is reversed and the disputed claim for workers compensation filed by the appellant Dennis L Batte is reinstated This matter is remanded to the OWC for further proceedings consistent with this opinion All costs of this appeal are assessed to the appellee REVERSED AND REMANDED 6
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