Jose Cantu VS The Shaw Group, Inc., Plains All American Pipeline, L.P., and Entergy of Louisiana, Inc.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1774 JOSE CANTU VERSUS THE SHAW GROUP INC PLAINS ALL AMERICAN PIPELINE L P AND ENTERGY LOUISIANA LLC DATE OFJUDGMENT 32010 MAY ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 563483 DIV E SEC 23 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE WILLIAM A MORVANT JUDGE Chet G Boudreaux Counsel for Plaintiff Appellant Baton Rouge Louisiana Jose Cantu Myron A Walker Jr Baton Rouge Louisiana Counsel for Defendants Appellees Plains Marketing L and Shaw P Constructors Inc BEFORE PARRO KUHN AND McDONALD JJ Disposition AFFIRMED N I y J KUHN J Plaintiff appellant Jose Cantu appeals the trial court judgment which s grants summary judgment and dismisses his tort claims against defendants appellees Plains Marketing L Plains and Shaw Constructors Inc Shaw P based on a finding that these defendants are his statutory employers We affirm PROCEDURAL BACKGROUND According to Cantu affidavit he was working as an installerhelper at s Plains St James Parish terminal facility As Cantu installed cable dividers on a cable tray the dividers came into contact with lowlying power lines causing him to suffer electrical injuries and burns to his entire body He filed this lawsuit naming Plains and Shaw among the defendants The record establishes that at the time of his employment Cantu was the direct employee of Ardent Services LLC Ardent which had entered into a subcontract with Shaw for electrical and instrumentation work at the St James Crude Oil Storage Facility owned by Plains And Shaw was under contract with Plains to perform construction services at the facility Plains and Shaw filed a joint motion for summary judgment averring entitlement to statutory immunity in tort pursuant La R 23 and 1061 S 1032 After a hearing the trial court granted their motion and dismissed Plains and Shaw from Cantu slawsuit This appeal followed 1 Although his original petition misidentifies these parties Cantu supplemental and amending s petitions ultimately name Plains and Shaw as the correct defendants 2 In addition Cantu sued Entergy Louisiana LLC identified as Entergy of Louisiana Inc in his petition and supplemental and amending petitions for among other things allegedly allowing a high voltage power line to sag dangerously low 2 DISCUSSION The doctrine of statutory employer codified in La R 23 was S 1061 amended in 1997 to provide that except in the two contract situation set forth in La R 23 A a statutory employer relationship shall not exist S 1061 2 unless there is a written contract between the principal and a contractor which recognizes the principal as a statutory employer La R 23 A S 1061 3 It further provides that when there is such a written contractual recognition of the relationship there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor employees that may only be s overcome by showing the work performed is not an integral part of or essential to the ability of the principal to generate that principal goods products or services s La R 23 A An employer seeking to avail itself of tort immunity bears S 1061 3 the burden of proving its entitlement to immunity Furthermore immunity statutes must be strictly construed against the party claiming the immunity Fleming v JE Merit Constructors Inc 20070926 p 8 La App I st Cir 3 985 So 08 19 2d 141 145 46 The ultimate determination of whether a principal is a statutory employer entitled to immunity is a question of law See Jackson v St Paul Ins Co 20040026 p 7 La App l st Cir 12 897 So 684 688 writ 04 17 2d denied 2005 0156 La 3 896 So 1042 05 24 2d Insofar as Plains status as a statutory employer Cantu first challenges the written contractual relationship between Plains and Shaw He claims the contractual provisions of the Plains Shaw contract establish that in effect Plains will not be liable for the payment of worker compensation benefits and s that t he fact that Plains is now attempting to hide under the statutory immunity 3 statute while contracting not to pay worker compensation benefits is clearly s contrary to La R 23 S 1061 Article 6 of the contract between Plains and Shaw states in relevant part 3 PURPOSES FOR OF LOUISIANA THE LAW S WORKER AND Plains CONTRACTOR Shaw AGREE THAT THE WORK PERFORMED COMPENSATION OWNER BY CONTRACTOR AND ITS EMPLOYEES PURSUANT TO THIS CONTRACT ARE AN INTEGRAL PART OF AND ARE ESSENTIAL TO THE ABILITY OF THE OWNER TO GENERATE S OWNER GOODS PRODUCTS AND SERVICES AND THAT S CONTRACTOR WORK SERVICES AND SHALL BE CONSIDERED A PART OF OWNER TRADE BUSINESS AND S OCCUPATION FOR PURPOSES OF La R 23 S 1061 1 A FURTHERMORE OWNER AND CONTRACTOR AGREE THAT THE OWNER IS THE PRINCIPAL OR STATUTORY EMPLOYER OF CONTRACTOR EMPLOYEES FOR PURPOSES OF La R S S IRRESPECTIVE OF OWNER STATUS S A 1061 23 ONLY EITHER AS THE STATUTORY EMPLOYER OR THE SPECIAL EMPLOYER AS DEFINED IN La S R C 1031 23 OF S CONTRACTOR EMPLOYEES AND REGARDLESS OF ANY OTHER RELATIONSHIP OR ALLEGED RELATIONSHIP BETWEEN THE OWNER AND CONTRACTOR EMPLOYEES S CONTRACTOR SHALL PRIMARILY BE AND REMAIN AT ALL TIMES RESPONSIBLE FOR THE PAYMENT OF LOUISIANA WORKER SCOMPENSATION BENEFITS TO ITS EMPLOYEES AND UNDERWRITER NEITHER SHALL BE CONTRACTOR ENTITLED NOR TO ITS SEEK CONTRIBUTION FOR ANY SUCH PAYMENTS FROM OWNER According to H Alston Johnson III workers Compensation and Practice 13 Louisiana Civil Law Treatise 129 at 261 4th ed 2002 If the principal or principal contractor is subjected to liability he is entitled to indemnity from the contractor or sub contractor who directly employed the claimant and if there is more than one intermediary contractor in the chain of employment he may have indemnity against them all on a solidary basis Each intermediary contractor in turn is entitled to indemnity against the sub contractor operating under him with the objective of shifting the loss ultimately to the claimant immediate payroll employer All parties other than s such employer merely lend their solvency to the employee claim s Footnotes omitted 4 Thus the PlainsShaw contract simply iterated that which otherwise occurs by operation of law under La R 23 Accordingly we find no error in the S 1061 trial court conclusion that under the Plains Shaw contract Plains is Cantu s s statutory employer and is entitled to tort immunity Cantu next challenges the contract between Ardent and Shaw as insufficient to support a finding of statutory employer status in favor of Shaw or Plains The subcontract between Ardent and Shaw states in relevant part Company Shaw and Subcontractor Ardent agree that Owner Plains and Company are designated as the statutory employer of s Subcontractor direct and statutory employees pursuant to La R S 1061 23 and acknowledge that the services required of Subcontractor and its direct and statutory employees pursuant to this Subcontract are an integral part of and essential to Owner and Company s sability to execute the Project Emphasis added Cantu notes that for statutory employer immunity from tort to apply La S 1061 R 23 requires that the work undertaken must be considered part of the s principal trade business or occupation if it is an integral part of or essential to the ability of the principal to generate that principal goods products or s services Thus he asserts that because the ArdentShaw subcontract states only that the services are an integral part of and essential to Plains and Shaw ability s to execute the project and not the goods and products as well it fails to strictly adhere to the statutory requirements and therefore does not support either s defendant entitlement to immunity In making this assertion Cantu does not suggest that the work undertaken was used to generate Plains goods or products 3 Unlike the contractual provisions at issue in Prejean v Maintenance Enterprises Inc 2008 0364 pp 13 14 La App 4th Cir 3 8 So 766 774 75 writ denied 20090892 La 09 25 3d 09 26 6 11 So 496 the PlainsShaw contract does not limit payment of workers 3d compensation benefits to the injured employee only if his employer is unable to pay but rather states that as between the owner and the employer ultimate liability for workers compensation payments is borne by the employer and not the owner 5 rather than its services he merely contends that the language of the contract must exactly track that of the statute and having failed to do so by omitting the words goods and products the contract must be construed to disallow statutory employer status in favor of Shaw Unless it is otherwise clearly indicated by the context whenever the term or is used in the Revised Statutes it is used in the disjunctive La R 1 S 9 Thus by employing one of the disjunctive types of generated works by the principal listed in La R 23 the ArdentShaw subcontract conforms to the S 1061 statutory requirements The trial court correctly rejected this assertion as a basis for disallowing statutory employer status for Plains and Shaw Since the subcontract recognizes a statutory employer relationship of Plains and Shaw with Ardent direct and statutory employees a rebuttable presumption s of a statutory employer relationship between Plains and Shaw and Ardent s employees attached See Fleming 2007 0926 at p 12 985 So at 147 48 It 2d was therefore incumbent on Cantu to show that the work he performed was not an integral part of or essential to the ability of Plains via Shaw to generate Plains goods products or services in order to rebut the presumption of statutory employer status in favor of Plains and Shaw In his attempt to overcome the presumption Cantu offered his affidavit in which he attests the following On the day of the accident I was sent to assist other workers to help install screws to reposition drivers in cable trays which had not been installed properly At the time ofthe accident I was working as an installerhelper The dividers had been positioned by either Plains or Shaw One of the dividers in the cable trays was turned the wrong way and 1 was told to flip it over to reposition the driver and when I did it came into contact with an overhead power line supply resulting in electrical shock injury 6 The work I was performing at the time I was injured was not one of my job duties or a part of the work required under the contract between my employer Ardent and Shaw I was hired by Ardent to pull cable for light fixtures s Ardent contract with Shaw was for installation of electrical and instrumentation services at the facility The work I was performing at the time of the accident and which caused my injury was not an integral part of or essential to the ability of either Plains or Shaw to generate goods products or services Nothing in Cantu rebuttal evidence shows that repositioning the cable s divider was not essential to Plains ability to generate its goods products or services Thus having failed to rebut the presumption that Plains and Shaw are his statutory employers see Jackson 20040026 at p 8 897 So at 689 2d defendants are entitled to tort immunity And the trial court correctly granted summary judgment in favor of Plains and Shaw dismissing Cantu claims against s them DECREE For these reasons the trial s court judgment is affirmed by this memorandum opinion issued in compliance La U Rule 2 16 Appeal A C R 13 1 costs are assessed against plaintiff appellee Jose Cantu AFFIRMED 7
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