The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GORDON GAMBLE CIVIL ACTION
VERSUS NO. 18-10102
CHEVRON ORONITE SECTION M (5)
COMPANY, LLC AND
GARY THOMAS
ORDER & REASONS
Before the Court is a motion for summary judgment filed by defendants Chevron Oronite
Company, LLC (“Chevron”) and Gary Thomas (collectively, “Defendants”),1 in which they
argue that Chevron qualifies as plaintiff Gordon Gamble’s statutory employer under the
Louisiana Workers’ Compensation Law, La. R.S. 23:1061, and thus Defendants are immune
from tort liability for Gamble’s alleged injury. Having considered the parties’ memoranda and
the applicable law, the Court grants the motion finding that Chevron is Gamble’s statutory
employer under the statute.
I. BACKGROUND
This matter concerns a work-related injury. Gamble filed this action against Chevron and
Thomas in the 25th Judicial District Court, Parish of Plaquemines, State of Louisiana, alleging
that he was injured while working at Chevron’s plant in Belle Chasse, Louisiana, as a pipefitter
employed by Zachry Holding, Inc. (“Zachry”).2 Gamble alleges that on June 26, 2018, he was
asked to change a busted gasket on a two-inch condensate line.3 Before starting the work,
Gamble and Calvin Parker, his foreman, requested that Thomas isolate the valve and bleed the
1 R. Doc. 32. Gamble opposed the motion (R. Doc. 35), and Defendants filed a reply memorandum in
further support of the motion (R. Doc. 38).
2 R. Doc. 1-1 at 1.
3 Id.
pipes.4 Thomas did so and informed Gamble that it was safe to proceed.5 Gamble alleges that,
when he cut the bolts, chemicals, hot water, and steam blew out of the pipe causing him to
sustain serious bodily injury, including severe burns.6 Gamble alleges that Chevron and Thomas
are liable for his injuries due to the unreasonably dangerous condition of the plant and their
negligence.7
Chevron removed the action to this Court on the basis of diversity subject-matter
jurisdiction under 28 U.S.C. § 1332,8 contending that Thomas was improperly joined because
Gamble cannot recover from him.9 Chevron argued that pursuant to a November 1, 2015 Master
Products and Services Agreement (“MPSA”) between itself and Zachry, Chevron was Gamble’s
statutory employer.10 Thus, Gamble and Thomas were co-employees and Thomas is immune
from liability.11 Gamble did not oppose the removal.
Thomas filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure arguing that Gamble cannot state a valid claim against him.12 Thomas, relying on the
MPSA, which he did not attach to his motion, argued that the Court did not have jurisdiction
over Gamble’s claims against him because he is immune from liability for Gamble’s alleged
injuries as Gamble’s co-employee due to Chevron’s status as Gamble’s statutory employer.13
4 Id. at 2.
5 Id.
6 Id.
7 Id. at 2-3.
8 R. Doc. 1 at 3. Gamble is a Louisiana citizen. R. Doc. 1-2 at 3. Chevron is a citizen of California and
Pennsylvania. R. Doc. 1 at 3. Chevron avers that there is more than $75,000 in controversy based on the nature of
Gamble’s alleged injuries and the damages sought. Id. at 6. Gamble has not filed a motion to remand contesting
Chevron’s assertion that the amount in controversy is satisfied or that Thomas was fraudulently joined.
9 R. Doc. 1 at 4. Thomas is alleged to be a Louisiana citizen. Because the Court concludes that Gamble
has no claim against Thomas, Thomas’ citizenship should be disregarded for purposes of the jurisdictional analysis
and diversity is therefore complete.
10 Id. at 5.
11 Id.
12 R. Doc. 12.
13 R. Doc. 12-1 at 2-3.
Gamble opposed Thomas’ motion arguing that the MPSA provision upon which Thomas
relied is invalid pursuant to Prejean v. Maintenance Enterprises, Inc., 8 So. 3d 766 (La. App.
2009), which invalidated a statutory employer clause because it impermissibly sought to relieve
the purported statutory employer from liability to pay workers’ compensation benefits to the
injured statutory employee.14 Gamble argued that, as a result, Chevron is not his statutory
employer, Thomas is not his co-employee, and they are not immune from tort liability.15
This Court denied Thomas’ motion to dismiss finding that the motion had to be treated as
a motion for summary judgment because Thomas relied upon the MPSA which was neither
referenced in, nor attached to, the pleadings.16 Rule 12(d) dictates that in this situation all parties
must have an opportunity to present all material pertinent to the motion. Therefore, the Court
denied Thomas’ motion to dismiss without prejudice to his refiling it as a motion for summary
judgment addressing all aspects of the application of the statutory employer and co-employee
doctrines.17 The instant motion is the anticipated motion for summary judgment.
II. LAW & ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element
14 R. Doc. 13 at 3-7.
15 Id.
16 R. Doc. 22.
17 Id.
essential to that party’s case, and on which the party will bear the burden of proof at trial.” Id. A
party moving for summary judgment bears the initial burden of demonstrating the basis for
summary judgment and identifying those portions of the record, discovery, and any affidavits
supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the
moving party meets that burden, then the nonmoving party must use evidence cognizable under
Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The
substantive law identifies which facts are material. Id. Material facts are not genuinely disputed
when a rational trier of fact could not find for the nonmoving party upon a review of the record
taken as a whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Equal Emp’t Opportunity Comm’n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50;
Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a
court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v.
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court
must assess the evidence, review the facts, and draw any appropriate inferences based on the
evidence in the light most favorable to the party opposing summary judgment. See Tolan v.
Cotton, 572 U.S. 650, 656 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.
2001). Yet, a court only draws reasonable inferences in favor of the nonmovant “when there is
an actual controversy, that is, when both parties have submitted evidence of contradictory facts.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant must
articulate specific facts and point to supporting, competent evidence that may be presented in a
form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625
(5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than “some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the nonmovant
will bear the burden of proof at trial on the dispositive issue, the moving party may simply point
to insufficient admissible evidence to establish an essential element of the nonmovant’s claim in
order to satisfy its summary judgment burden. See Celotex, 477 U.S. at 322-25; Fed. R. Civ. P.
56(c)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the
nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.
B. The Statutory Employer Doctrine
The Louisiana Workers’ Compensation Law provides that workers’ compensation is an
employee’s exclusive remedy for an injury he or she sustains in the course and scope of his or
her employment, except for injuries resulting from intentional acts. La. R.S. 23:1021, et seq.;
Moreno v. Entergy Corp., 105 So. 3d 40, 49 (La. 2012). Thus, employers are immune from suits
brought by employees seeking recovery for non-intentional torts. See La. R.S. 23:1032(A).
The immunity is afforded to direct employers, as well as to “any principal.” Id.
23:1032(A)(1)(a). A “principal” is “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.” Id.
23:1032(A)(2). “Thus, Louisiana’s workers’ compensation scheme employs the concept of a
‘statutory employer’ to confer immunity and impose the corresponding obligations on companies
that procure labor through third party contractors.” Guillory v. Newpark Envtl. Servs., L.L.C.,
2013 WL 5757593, at *2 (E.D. La. Oct. 23, 2013) (citing 14 H. ALSTON JOHNSON, LA. CIV. LAW
TREATIES, WORKERS’ COMPENSATION LAW AND PRACTICE § 364 (5th ed. 2003)).
A statutory employer-employee relationship may exist when “there is a written contract
between the principal and a contractor which is the employee’s immediate employer or his
statutory employer, which recognizes the principal as a statutory employer.” La. R.S.
23:1061(A)(3). When such a contract exists, “there shall be a rebuttable presumption of a
statutory employer relationship between the principal and the contractor’s employees, whether
direct or statutory employees.” Id. “This presumption may be overcome only by showing that
the work is not an integral part of or essential to the ability of the principal to generate that
individual principal’s goods, products, or services.” Id.
Chevron contends that it is Gambel’s statutory employer under the terms of the MPSA,
which states, in pertinent part:
13.3 Louisiana Statutory Employer. In all cases where Supplier’s [Zachry’s]
employees (defined to include Supplier’s direct, borrowed, special or statutory
employees) are covered by the Louisiana Worker’s Compensation Act, La. R.S.
23:1021 et seq., Chevron and Supplier agree that pursuant to La. R.S.
23:1061(A)(1) all Services performed by Supplier and its employees under the
terms and conditions of this Contract is an integral part of Company’s
operations and is essential to Chevron’s ability to generate its goods, products,
and services. Additionally, Chevron and Supplier agree that for purposes of La.
R.S. 23:1061(A)(3) Chevron is the principal (as defined in La. R.S.
23:1032(A)(2)) or statutory employer or special employer of Supplier’s
employees; however, in addition to Chevron’s rights under La. R.S. 23:1061(B),
Supplier shall remain primarily responsible for the payment of Louisiana
Worker’s Compensation benefits to its employees, and shall not be entitled to
seek contribution for any such payments from Chevron.
The MPSA meets the requirements of La. R.S. 23:1061(A)(3). It is a written contract
between the principal, Chevron, and Zachry, Gamble’s direct employer, and expressly
recognizes Chevron as the statutory employer of Zachry’s employees who are performing
functions that are integral and essential to Chevron’s ability to generate its goods, products, and
services. Indeed, Gamble’s work as a pipefitter was essential to Chevron’s ability to operate a
chemical plant.
Gamble, relying on Prejean v. Maintenance Enterprises, Inc., argues that the above-
quoted statutory employer clause is invalid because it impermissibly attempts to relieve Chevron
from liability to pay workers’ compensation benefits to injured statutory employees. In Prejean
the relevant clause of the contract at issue stated that the injured statutory employee could not
pursue workers’ compensation benefits against the statutory employer unless “the immediate
employer, Contractor or its subcontractor … is unable to meet their financial obligation under the
Louisiana Compensation Statute for work or service that is performed under this Agreement.” 8
So. 3d at 774. The court found that this clause placed an impermissible “onerous burden on an
injured worker to discover and prove the financial or other reasons the direct employer ascribes
to being ‘unable to pay’ him compensation benefits, possibly involving lengthy litigation and
very likely depriving that worker of medical care and weekly benefits under the workers’
compensation statutory scheme.” Id. at 775.
The statutory employer clause in the MPSA between Chevron and Zachry does not place
such a burden on the injured worker. Afterall, the clause makes Chevron the statutory employer
of Zachry’s employees engaged in the execution of Chevron’s work and thereby makes Chevron
liable to pay any of its injured statutory employees workers’ compensation benefits. But the
statutory employer clause in the MPSA also delegates duties as between the direct and statutory
employers, which is permissible. Several courts have found language identical, or nearly
identical, to that of the MPSA to be a permissible regulation of the responsibilities (including
rights of indemnity and contribution) of the direct and statutory employers as between
themselves, and in so doing held that Prejean was distinguishable and inapplicable. Rodney v.
Williams Olefins, L.L.C., 2015 WL 5304110, at *3-4 (M.D. La. Sept. 8, 2015) (finding Prejean
inapplicable to statutory employer clause containing same language as clause in MPSA);
Guillory, 2013 WL 5757593, at *4 (same); Conner v. Kraemer-Shows Oilfield Servs., LLC, 2013
WL 2644522, at *4-5 (W.D. La. June 11, 2013) (same); Taylor v. CITGO Petroleum Corp., 2012
WL 3707480, at *3 (W.D. La. Aug. 24, 2012) (same); Cantu v. Shaw Grp., Inc., 2010 WL
1752511, at *2 (La. App. 2010) (same). As explained in Conner, for example, “[t]his provision
of the [master agreement] cannot be against public policy because the same result is reached by
operation of law.” 2013 WL 2644522, at *5.
Moreover, the court in Prejean implicitly upheld the contractual provision in dispute in
this case by citing with approval Smith v. Marathon Ashland Petroleum LLC, 887 So. 2d 613
(La. App. 2004), in which the court upheld a contractual statutory employer provision with
language virtually identical to that of the MPSA. As the Prejean court observed, “[t]he
contractual language [at issue in Smith] is clearly and unambiguously regulating the rights and
responsibilities of the statutory and direct employers as between themselves, which is
permissible.” Prejean, 8 So. 3d at 775 (emphasis in original).
In sum, the statutory employer clause at issue here requires Chevron to pay workers’
compensation benefits to an injured worker while also unambiguously regulating responsibility
as between the employers. It does not establish immunity in favor of Chevron from claims for
workers’ compensation benefits asserted by injured workers. Instead, it permits Chevron to seek
reimbursement from Zachry if an injured worker obtains workers’ compensation benefits from
Chevron. Gamble brought a tort action against Chevron from which Chevron and, by extension,
Thomas are immune by operation of the statutory employer doctrine. See Serrano v. Otis
Elevator Co., 2017 WL 479576, at * 6 (E.D. La. Feb. 6, 2017) (“It is well settled that employees
of statutory employers are also immune from tort liability as statutory co-employees.”). As such,
Chevron and Thomas are entitled to summary judgment dismissing Gamble’s claims.
III. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Defendants’ motion for summary judgment (R. Doc. 32) is
GRANTED, and Gamble’s claims against them are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 3rd day of September, 2019.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE