Penny Labranche VS Fatty's, L.L.C.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010CA 0475 PENNY LABRANCHE VERSUS S FATTY LLC Judgment rendered October 29 2010 n On Appeal from the Office of Workers Compensation Administration District 6 Louisiana Docket No 09 05791 Honorable Gwendolyn F Thompson Judge Presiding LAURIE W MASCHEK ATTORNEY FOR SLIDELL LA PLAINTIFFAPPELLANT PENNY LABRANCHE JOHN J RABALAIS ATTORNEY FOR LA COVINGTON DEFENDANT APPELLEE SUPER STOP ENTERPRISES BEFORE KUHN PETTIGREW JJ and KLINE J pro fempore 1 Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court PETTIGREW J The primary issue presented in this appeal is whether defendant Super Stop Enterprises Inc Super Stop was the statutory employer of claimant Penny Labranche at the time of her alleged work related accident Following a judgment granting Super Stop exception raising the objection of no right of action and dismissing s Ms Labranche claims with prejudice Ms Labranche now appeals For the reasons set s forth below we affirm FACTS AND PROCEDURAL HISTORY On April 23 2009 Ms Labranche was working in the course and scope of her employment with Fatty II a restaurant providing food services on the premises of a s truck stop owned by Super Stop According to the record Ms Labranche was coming out of the kitchen when she slipped on a freshly mopped Floor and injured her left shoulder Ms Labranche filed a disputed claim for compensation naming Fatty II as her direct s employer and Super Stop as her statutory employer2 In response to Ms Labranche claim Super Stop filed an exception raising the s objection of no right of action alleging that there was no employment relationship between Ms Labranche and Super Stop and that Ms Labranche had no right to workers compensation benefits from Super Stop The matter proceeded to hearing on December 18 2009 at which time the workers compensation judge WC heard arguments from the parties and took the matter under advisement After considering the applicable law and the evidence in the record the W0 rendered judgment on January 4 2010 sustaining Super Stop no right of action exception and dismissing with prejudice Ms s s Labranche claim against Super Stop It is from this judgment that Ms Labranche has appealed Z Ms Labranche originally named Ten G L DBA Reserve Truck Stop TenG as her statutory employer C but later amended her claim to substitute Super Stop as her statutory employer Ms Labranche subsequently filed a motion for partial dismissal concerning her claim against Ten G and an order dismissing said claim without prejudice was signed on October 29 2009 3 The only evidence introduced into the record of this matter was a commercial lease dated October 31 2008 entered into between Super Stop and Fatty II concerning the terms and conditions under which s s Fatty II would operate its restaurant within Super Stop premises s 2 APPLICABLE LAW No Right of Action Generally an action can only be brought by a person having a real and actual interest that he asserts La Code Civ P art 681 The objection of no right of action tests whether the plaintiff who seeks relief is a person in whose favor the law extends a remedy Howard v Administrators of Tulane Educational Fund 20072224 p 16 La 7 986 So 47 59 A peremptory exception pleading the objection of 08 1 2d no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted La Code Civ P art 927 A 6 The objection of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation Red Stick Studio Development C L v State ex rel Dept of Economic Development 2009 1349 p 5 La App 1 Cir 4 37 So 1029 1033 10 8 3d Whether a plaintiff has a right of action is a question of law Therefore it is reviewed de novo on appeal To prevail the defendant must show that the plaintiff does not possess an interest in the subject matter of the suit Estate of Mayeaux v Glover 20082031 p 5 La App 1 Cir 1 31 10 12 3d So 1090 1093 writ denied 20100312 La 4 31 So 1069 10 16 3d Statutory Employer The ultimate determination of whether a principal is a statutory employer entitled to immunity is a question of law for the court to decide Fleming v JE Merit Constructors Inc 20070926 p 8 La App 1 Cir 3 985 So 141 146 08 19 2d An employer seeking to avail itself of tort immunity bears the burden of proving its entitlement to immunity Weber v State 93 0062 p 5 La 4 635 So 94 11 2d 188 191 Furthermore immunity statutes must be strictly construed against the party claiming the immunity Weber 93 0062 at 8 635 So at 193 2d Under the Louisiana Workers Compensation Act the Act an employer is liable for compensation benefits to an employee who is injured as a result of an accident arising out of and in the course of employment La R 23 Generally the rights S 1031 3 and remedies under the Act La R 23 1415 provide an employee exclusive S 1021 s remedy against the employer for such injury La R 23 The Act applies both to S 1032 a direct employeremployee relationship as well as to a statutory employeremployee relationship Specifically La R 23 A provides that when a principal S 1061 1 undertakes to execute any work which is a part of his trade business or occupation and contracts with any person in this Section referred to as a contractor for the execution by or under the contractor of the whole or any part of the work undertaken by the principal the principal as a statutory employer shall be granted the exclusive remedy protections of R 23 i S 1032 The doctrine of statutory employer codified in La R 23 was amended S 1061 in 1997 to provide that except in the twocontract situation set forth in La R S 1061 2 23 A a statutory employer relationship shall not exist written contract between the principal and a contractor principal as a statutory employer La R 23 A S 1061 3 unless there is a which recognizes the 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 overcome by showing the work performed s is not an integral part of or essential to the ability of the principal to generate that s principal goods products or services La R 23 A S 1061 3 In sum there are two bases for finding statutory employment first when the principal is in the middle of two contracts referred to as the twocontract theory see La R 23 and second when there is a written contract recognizing the S 1061A 2 principal as the statutory employer see La R 23 S 1061A 3 Under La R 23 A work shall be considered part of the principal trade business or S 1061 1 s occupation if it is an integral part of or essential to the ability of the principal to generate that individual s principal goods products or services 4 DISCUSSION In the instant case Ms Labranche argues the trial court erred in sustaining Super s Stop no right of action exception and dismissing with prejudice Ms Labranche claim s against Super Stop Ms Labranche asserts that there is a written contract in this case e i the commercial lease entered into by Super Stop and Fatty II that establishes a s principalcontractor relationship such that Super Stop is indebted to Ms Labranche for her claim for workers compensation benefits While acknowledging that the lease at issue does not use the terms principal and contractor Ms Labranche asserts this is not fatal to her claim as La R 23 merely requires that the contract recognizes the S 1061A 3 principal as a statutory employer Ms Labranche maintains that the lease does in fact establish and recognize Super Stop as Ms Labranche statutory employer and thus La s S 1061 R 23 mandates that Super Stop shall provide workers compensation benefits to Ms Labranche Citing the general rules of contract interpretation La Civ Code arts 20452057 and maintaining that the words of the lease are clear and explicit Ms Labranche highlights sections of the lease as support for her position that Super Stop should be recognized as her statutory employer Specifically Ms Labranche points to sections 8 and 9 of the lease which provide as follows 8 OPERATIONS Lessee must be open for business for 24 hours per day for the first ninety days of its operations Thereafter any change in hours may not be made without the written consent of Lessor Lessee must also maintain and operate the Premises in a clean and orderly manner in accordance with Section 12 herein MAINTENANCE AND REPAIR and must serve food and provide customer service to Lessor satisfaction s Failure of Lessee to comply with these requirements or any related written requests shall permit Lessor to terminate this contract with threedays written notice 9 VIDEO POKER OPERATIONS Lessee must abide by and comply with all provisions of the law and regulations that govern video gaming contained in LSAR 27 et seq and the Louisiana Administrative Code Title S 301 Part Section 42 XI 2401 etseq and any subsequent amendments thereto Lessee must also provide such information and documentation and perform such acts as are required by the Video Draw Poker Devices Control Law LSAR 27 etseq and all rules and regulations promulgated pursuant S 301 thereto necessary for the video poker licensee to procure and maintain a Type V video draw poker qualified truck stop facility license to permit the placement of video draw poker devices in the premises 5 Lessee further acknowledges and agrees that for purposes of compliance with the video gaming law at LSAR 27 and in order to S 306 a 5 A permit the continued operation of video gaming devices upon the premises of the truck stop facility Lessor does hereby reserve and shall have ultimate authority supervision and control over the entire premises of the truck stop facility including the leased premises as would be required to satisfy any and all regulatory obligations for the continued operation of the truck stop facility and the video gaming devices located thereon including the right to terminate this Lease upon the disapproval of the Louisiana Gaming Control Board of this Lease or upon the disapproval of this Lease by any other regulatory agency which requires said approval Based on these two sections of the lease Ms Labranche argues in brief to this court that Super Stop had ultimate authority supervision and control of Fatty II and s that Fatty II was contracting to provide food services as required by Super Stop and to s Super Stop satisfaction Ms Labranche continues noting that there is no ambiguity in s the lease and that the lease plain meaning establishes that Super Stop is the principal s and Fatty II is a contractor to provide food services which is essential to Super Stop s s trade business or occupation of operating a truck stop After a thorough review of the record we find Ms Labranche argument to be s without merit There is simply nothing in the commercial lease between Super Stop and s Fatty II that serves to establish a principal contractor relationship such that Super Stop would be recognized as Ms Labranche statutory employer s Rather the lease establishes nothing more than a lessorlessee relationship between Super Stop and Fatty s H Accordingly the WC did not err in sustaining Super Stop no right of action s exception and dismissing with prejudice Ms Labranche claims Based on the unique s facts and circumstances herein Ms Labranche clearly had no interest in judicially enforcing the right asserted against Super Stop See La Code Civ P art 927 A 6 CONCLUSION For the above and foregoing reasons we affirm the January 4 2010 judgment and assess all appeal costs against Penny Labranche AFFIRMED 10
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