# Frantom v. United States

> District Court, W.D. Louisiana · September 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10194439

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** September 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

MICHAEL S. FRANTOM CIVIL ACTION NO. 20-385

VERSUS JUDGE ELIZABETH E. FOOTE

USA MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court are cross-motions for summary judgment filed by Michael Frantom
(“Frantom”), Intervenors J.D. Frost Trucking Company, L.L.C. (“J.D. Frost”) and Louisiana
Construction and Industry Self-Insurers’ Fund, and Defendant United States of America.1
All motions raise the same issue—whether the United States qualifies as Frantom’s
“statutory employer” under Louisiana law. For the following reasons, Frantom’s and
Intervenors’ motions for partial summary judgment on the statutory employer defense
under the Louisiana Workers’ Compensation Act are GRANTED. The United States’ cross-
motion for summary judgment is DENIED.
Background

All parties largely agree on the relevant facts. In 2018, Frantom served as a truck
driver employed by J.D. Frost.2 That same year, J.D. Frost contracted with the United
States Postal Service (“USPS”) to transport mail between postal facilities in Western
Louisiana.3 As a result, on April 6, 2018, Frantom was at the USPS Shreveport Processing

1 Record Documents 23, 28, and 35.
2 Record Documents 35-1 at ¶ 2, 37-1 at ¶ 2, and 39-1.
3 Record Documents 35-1 at ¶s 2−3, 37-1 at ¶s 2−3, and 39-1.
and Distribution Center so the facility could load his truck with mail.4 Frantom was to
transport this mail to another USPS facility in Louisiana.5 While he waited, an overhead

industrial fan fell from the facility’s loading dock ceiling and then struck and injured
Frantom.6
Frantom filed suit in March 2020 seeking damages from the United States under
the Federal Torts Claims Act (“FTCA”).7 J.D. Frost and its workers’ compensation insurer,
the Louisiana Construction and Industry Self-Insurers’ Fund, intervened in this action in
October 2020 asserting their subrogation rights for expenses which they previously paid
on behalf of Frantom or will be required to pay on his behalf.8

In its answer to Frantom’s complaint and to the Intervenors’ complaint, the United
States asserts that it is entitled to the “statutory employer” defense under the Louisiana
Workers’ Compensation Act (“LWCA”) and, therefore, not liable under the FTCA.9 Frantom
and Intervenors have each respectively filed a motion for summary judgment arguing that
the United States does not qualify as a statutory employer under the LWCA.10 The United
States opposed the motions and, in turn, filed its own motion for summary judgment

arguing that all claims against it must be dismissed because it qualifies as a statutory
employer.11

4 Record Documents 35-1 at ¶ 4, 37-1 at ¶ 4, and 39-1.
5
6 Record Documents 35-1 at ¶s 1 and 4−5, 37-1 at ¶s 1 and 4−5, and 39-1.
7 Record Document 1.
8 Record Document 15.
9 Record Documents 8 and 34.
10 Record Documents 23 and 28.
11 Record Document 35.
Law and Analysis

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Summary judgment is appropriate
when the pleadings, answers to interrogatories, admissions, depositions, and affidavits on
file indicate that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. , 477 U.S. 317, 322
(1986). When the burden at trial will rest on the non-moving party, the moving party
need not produce evidence to negate the elements of the non-moving party’s case; rather,
it need only point out the absence of supporting evidence at 322–23.
If the movant satisfies its initial burden of showing that there is no genuine dispute
of material fact, the nonmovant must demonstrate that there is, in fact, a genuine issue
for trial by going “beyond the pleadings” and “designat[ing] specific facts” for support.
, 37 F.3d 1069, 1075 (5th Cir. 1994) (citing , 477 U.S. at
325). “This burden is not satisfied with some metaphysical doubt as to the material facts,”
by conclusory or unsubstantiated allegations, or by a mere “scintilla of evidence.”
(internal quotation marks and citations omitted). However, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.”
, 477 U.S. 242, 255 (1985) (citing
, 398 U.S. 144, 158–59 (1970)). While not weighing the evidence or evaluating the
credibility of witnesses, courts should grant summary judgment where the critical evidence
in support of the nonmovant is so “weak or tenuous” that it could not support a judgment
in the nonmovant’s favor. , 997 F.2d 62, 67 (5th Cir. 1993).

Additionally, Local Rule 56.1 requires the movant to file a statement of material
facts as to which it “contends there is no genuine issue to be tried.” The opposing party
must then set forth a “short and concise statement of the material facts as to which there
exists a genuine issue to be tried.” W.D. La. R. 56.2. All material facts set forth in the
movant’s statement “will be deemed admitted, for purposes of the motion, unless
controverted as required by this rule.”
B. Statutory Employer Defense

Frantom filed suit for personal injury damages against the United States under the
FTCA. While the United States is generally entitled to sovereign immunity, the FTCA
waives sovereign immunity and “permits suits against the United States sounding in state
tort for money damages.” , 556 F.3d 326, 335 (5th Cir. 2009).
This waiver is limited, however, and the United States is only liable under the FTCA “in
the same manner and to the same extent that a private individual under like

circumstances” would be liable. 28 U.S.C. § 2674. The FTCA directs that tort claims
against the United States are decided “in accordance with the law of the place where the
act or omission occurred.” 28 U.S.C. § 1346(b)(1). In this case, Frantom alleges that his
damages stem from an accident occurring in Louisiana. Consequently, Louisiana law
applies.
Under the LWCA, an employer is liable for compensation benefits to an employee

injured in an accident arising out of and in the course of his or her employment. La. R.S.
§ 23:1031. In those instances, the LWCA is the “exclusive remedy against the employer
for such injury.” La. R.S. § 23:1032(A). While this tort immunity naturally covers direct

employers, it also covers non-direct employers termed “principals” classified as “statutory
employers.” , 807 F.3d 730, 732 (5th Cir. 2015); La. R.S. §
23:1061(A)(1). Section 1061(A) governs statutory employment. It states in part:
[W]hen any “principal” as defined in R.S. 23:1032(A)(2), 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 the “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.S. 23:1032 . . . .

La. R.S. § 23:1061(A)(1).
But Louisiana law specifies only two bases for finding a statutory employment
relationship. The first basis exists when the principal is the middle of two contracts−this
is titled the “two-contract theory.”
, 2002-1072, p. 8 (La. 4/9/03); 842 So. 2d 373, 378. The second
basis for statutory employment exists when “there is a written contract recognizing the
principal as the statutory employer.” ; La. R.S. § 23:1061(A)(3). Because the
United States claims the USPS was a statutory employer under both theories, it “bears the
burden of proving its entitlement to immunity.” ,
2011-2201, p. 7 (La. App. 1 Cir. 6/8/12); 93 So. 3d 754, 758. In doing so, the Court must
strictly construe the “immunity statutes . . . against the party claiming the immunity.”
The Court will address whether the United States qualifies as a statutory employer for
each basis separately.
1. The Two-Contract Defense

First, the United States is unable to prove it was a statutory employer based on the
two-contract theory. A principal is only classified as a statutory employer under this theory
when:
(1) the principal enters into a contract with a third party; (2) pursuant to that
contract, work must be performed; and (3) in order for the principal to fulfill its
contractual obligation to perform the work, the principal enters into a subcontract
for all or part of the work performed.

, 842 So. 2d at 379; La. R.S. § 23:1061(A)(2). In other words, this defense only
applies when the principal is sandwiched between two contracts. The United
States argues the USPS meets this theory’s first element because it entered contracts with
its third-party customers.12 Specifically, these customers include those for whom the USPS
collects, handles, transports, returns, and holds mail for a fee.13 Next, the United States
contends it meets the theory’s second and third elements because the USPS subcontracted
its transportation obligations to J.D. Frost, Frantom’s employer.14 Therefore, the United
States argues it occupied the position as a principal sandwiched between the “contracts”
with its customers and the contract with J.D. Frost.15 Nevertheless, while the USPS
have a contract with J.D. Frost, the United States does not offer evidence of the contracts
it claims it entered with its third-party customers. Instead, it simply describes the USPS’s
broad obligations as a mail carrier.16

12 Record Document 35-2, at 8−9.
13
14
15
16 at 8.
Without a third-party contract, the United States’ interpretation of this defense
would lead to an overly broad application of the two-contract theory. Indeed, business

who provides services would be a statutory employer absent a third-party contract so long
as it sublets work to another entity. But this is not enough to declare a party immune
from liability under the two-contract theory. ,
, No. 12-804, 2016 WL 687639, at *2 (E.D. La. Feb. 19, 2016) (acknowledging the
necessity of the existence of a contract under Section 1061(A)(2)). Rather, the statute’s
purpose “is to establish a compensation obligation on the part of the principal who
obligates itself to a party for the performance of work and who then

subcontracts with intermediaries whose employees perform any part of that work.”
, 96-494, p. 4 (La. App. 5 Cir. 11/26/96); 685 So. 2d
329, 332 (emphasis added). Here, the United States is one contract short.
Further, the USPS’s duties are outlined by federal law. For example, the USPS has
a statutory obligation to “maintain an efficient system of collection, sorting, and delivery
of the mail nationwide” and “to provide types of mail service to meet the needs of different

categories of mail and mail users.” 39 U.S.C.A. § 403(b)(1)−(2). These are obligations
imposed by law, not by contract. Even so, the United States cites no authority
for the idea that such wide-ranging statutory mandates constitute “contracts” under
Louisiana law.17 The Court is, therefore, unwilling to adopt such a broad interpretation of
the two-contract theory. Thus, this defense is unavailable to the United States.

17 The United States cites for the idea that the USPS enters into third-party “contracts”
with its customers. No. 14-566, 2015 WL 11236544, at *3 (N.D. Ga. June 9, 2015) (“[T]he court finds that
under the circumstances presented here, the Postal Service is a ‘contractor’ and ‘statutory employer’ of
Plaintiff and immune from tort liability.”). Notably, however, the court in was not applying Louisiana
2. The Trade, Business, or Occupation Defense

Next, the United States is likewise foreclosed from proving the trade, business, or
occupation defense. When the two-contract theory does not apply, a statutory
employment relationship exists under this other basis when: “(1) a principal undertakes
work that is part of his trade, business, or occupation by means of a written contract with
a contractor that is the employee's immediate or statutory employer; and (2) the contract
between the principal and contractor recognizes the principal as a statutory employer.”
, 2017-1577, p. 7 (La. App. 1 Cir. 9/4/19); 2019 WL
4201475, at *3 (emphasis removed) (citing La. R.S. § 23:1061(A)(1) & (3)). This defense

is based in part on Section 1061(A)(3), which states:
Except in those instances covered by [the two-contract theory] . . . a statutory
employer relationship between the principal and the contractor's
employees, unless 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 the statutory employer

La. R.S. § 23:1061(A)(3) (emphasis added).
Frantom argues that the contract between the USPS and J.D. Frost “contains no
provision recognizing the United States of America as a principal or statutory employer.”18
The United States does not argue otherwise. Instead, it claims that no specific contractual
provision is required because Frantom was performing work within the “trade, business,

law. Nonetheless, Frantom directs the Court’s attention , a case decided within
the same district yet directly opposed to this proposition. No. 01-891, 2003 U.S. Dist. LEXIS 29110, at *8
n.4 (N.D. Ga. June 12, 2003) (“Although the United States asserts that it is indeed a "contractor" inasmuch
as, according to the United States, it has a "contract" with postal customers for the delivery of mail, it has
wholly failed to direct the court's attention to any evidence or legal authority that actually supports this
broad assertion.”).
18 Record Document 23-2 at 6.
or occupation” of the USPS−namely, the transportation of mail.19 It contends this fact
alone is enough to grant the USPS tort immunity.20 To support its argument, the United

States relies on , No. 03-1550, 2004 WL 193129 (E.D. La. Jan.
30, 2004), and , No. 97-3406, 1998 WL 637379
(E.D. La. Sept. 16, 1998). Both cases, however, cite and discuss case law analyzing
Section 1061’s former iteration before its 1997 amendment.21 , , 2004
WL 193129, at *3 (citing , 582 F. Supp. 75, 76 (W.D. La.
1984)) (discussing the “trade, business, or occupation” defense as applied to the former
statute); ., 1998 WL 637379, at * 1 (considering a tort which

occurred in October 1995, more than a year before the current statute’s enactment).
Section 1061(A)(3) is a relatively recent addition to Louisiana law. Before the
legislature revised Section 1061 in 1997, “ ‘principal’ was a statutory employer of
employees of ‘contractors’ that performed part of the principal’s ‘trade, business, or
occupation.’” , No. 16-13948, 2018 WL
5472792, at *5 (E.D. La. Oct. 29, 2018) (emphasis added) (citing 1989 La. Sess. Law Serv.

Act 454 (H.B. 1431) (West)). As a result, years of workers’ compensation cases analyzed

19 Record Document 35-2 at 5−6.
20
21 The former language of Section 1061 stated in relevant part:

Where any person, in this Section referred to as “principal”, undertakes to execute any work which
is a part of his trade, business, or occupation or which he had contracted to perform and contracts
with any person, in this Section referred to as “contractor”, for the execution by or under the
contractor of the whole or any part of the work undertaken by the principal the principal shall be
liable to pay to any employee employed in the execution of the work or to his dependent, any
compensation under this Chapter which he would have been liable to pay if the employee had been
immediately employed by him . . . .

S.B. 922, 1997 Leg., Reg. Sess. (La. 1997).
what work qualified as part of a principal’s “trade, business, or occupation” under the old
statute. , , 95-1830, pp. 3−6 (La. 9/13/96);

681 So. 2d 329, 331−32 (discussing the history of pre-1997 Section 1061);
, 488 So. 2d 934, 938 (La. 1986) (analyzing the “trade, business,
or occupation” defense under an older version of Section 1061). For example, courts once
considered whether the principle contracted for “routine and customary” work, whether
the principal could perform the work itself, or whether a given contract was common in
the principal’s industry. , 488 So. 2d at 938.22
But the statue’s most recent version amended the old language23 and added an

additional requirement. Following the 1997 revision, a statutory employer relationship
“ exist,” except by the two-contract theory or evidence of a contract which defines
a principal as a statutory employer. La. R.S. § 23:1061; S.B. 922, 1997 Leg., Reg.
Sess. (La. 1997). Consequently, in addition to a principal contracting for work that is part
of its trade, business, or occupation, there must be a contract recognizing the principal
as a statutory employer. La. R.S. § 23:1061(A)(1) & (3);

, 443 F. Supp. 3d 937, 947 (W.D. Tenn. 2020) (applying Louisiana law and
acknowledging the necessity of a contract which recognizes the principal as a statutory
employer); , 2016 WL 687639, at *2 (same); , 2004-1988,
pp. 9−13 (La. App. 1 Cir. 6/14/06); 938 So. 2d 1032, 1039−42 (applying Section 1061(A)

22 The passage of the most recent 1997 statute expressly overruled the statutory employer tests as stated
in and . S.B. 922, 1997 Leg., Reg. Sess. (La. 1997).
23 Section 1061 now also outlines a modified “trade, business, or occupation” standard. Specifically, “work
shall be considered part of the principal's trade, business, or occupation if it is an integral part of or essential
to the ability of the principal to generate that individual principal's goods, products, or services.” La. R.S. §
23:1061(A)(1).
as amended in 1997); Jackson v. St. Paul Ins. Co., 2004-0026, pp. 8—9 (La. App. 1 Cir.
12/17/04); 897 So. 2d 684, 689 (applying Section 1061(A) when a contract explicitly
recognized a defendant as a contractor’s statutory employer). In other words, “[a]
contract involving work for a principal's trade, business, or occupation is... a necessary
but not sufficient element of a statutory employer relationship.” Donahue, 2018 WL
5472792, at *5 (emphasis in original).
Therefore, even if the United States is correct and the work furthered by Frantom
was within the trade, business, or occupation of the USPS—a fact which Frantom does not
dispute—they do not contend that the contract between the USPS and J.D. Frost
recognizes the USPS as a statutory employer. Thus, the United States cannot meet its
burden or enjoy tort immunity under Section 1061(A)(3)’s plain language.
Conclusion
For these reasons, Plaintiff's and Intervenors’ motions for partial summary
judgment preventing the United States from claiming a statutory employer status based
on Section 106124 are GRANTED. The Defendant’s cross-motion for summary judgment?°
is DENIED and the United States is therefore unable to avail itself of tort immunity as a
statutory employer.
THUS DONE AND SIGNED thi sc.day of September, 2021.

NEFED “SIA DISTRICT JUDGE

4 Record Documents 23 and 28.
2° Record Document 35.
11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10194439. Public record. Not legal advice.