The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CA 09-1072 consolidated with CA 09-1073
ELIZABETH A. TILLEY
VERSUS
BOISE CASCADE CORPORATION, ET AL.
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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2008-0186
HONORABLE STUART S. KAY, JR., DISTRICT JUDGE
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BILLY HOWARD EZELL
JUDGE
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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Billy Howard Ezell,
Judges.
REVERSED AND REMANDED.
Leslie R. Leavoy, Jr.
P. O. Box 1055
DeRidder, LA 70634
(377) 462-6051
Counsel for Plaintiff/Appellant:
Elizabeth A. Tilley
Andrew Holleman Meyers
Beaud & Meyers
P. O. Box 3448
Lafayette, LA 70502
(337) 266-2200
Counsel for Defendants/Appellees:
Boise Cascade Corporation
Dennis Wallace
Christopher Jude Roy, Jr.
Chris J. Roy, Jr., A.P.L.C.
P. O. Box 1592
Alexandria, LA 71309-1592
(318) 487-9537
Counsel for Plaintiff/Appellant:
Elizabeth A. Tilley
EZELL, JUDGE.
In these consolidated cases, Elizabeth Tilley and Terry Choat appeal trial court
judgments which granted summary judgment in favor of Boise Cascade Corporation
and Dennis Wallace. Both judgments held that the Defendants were entitled to tort
immunity as a statutory employer pursuant to La.R.S. 23:1061.
FACTS
Both Ms. Tilley and Mr. Choat were employed by BE&K Construction
Company. On June 8, 2007, they were attempting to open a valve on the Number 3
Digester at Boise’s DeRidder paper mill when they were sprayed with a hot liquid
causing injuries. BE&K was performing work at Boise pursuant to an annual
contractor services agreement which commenced on June 2, 2002.
Ms. Tilley and Mr. Choat filed suit against Boise and Mr. Wallace. They
alleged that the Defendants had failed to shut the digester off in sufficient time prior
to any performance of work on the digester. In response, the Defendants filed a
motion for summary judgment alleging that they were immune from tort liability
pursuant to La.R.S. 23:1061.
A hearing on the motion for summary judgment in Ms. Tilley’s case was held
on October 30, 2008, before Judge Stuart Kay. He granted the motion for summary
judgment. A hearing on the motion for summary judgment in Mr. Choat’s case was
held on January 12, 2009, before Judge Kerry Anderson. After taking the case under
advisement, Judge Anderson also granted summary judgment in favor of Boise and
Mr. Wallace. Both Ms. Tilley and Mr. Choat appealed the judgments. The cases
were consolidated in this court after the filing of an unopposed motion to consolidate.
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SUMMARY JUDGMENT
Ms. Tilley and Mr. Choat both claim that the trial court erred in granting
summary judgment in favor of Boise and Mr. Wallace. They allege that the
Defendants failed to carry their burden of proof and that there are genuine issues of
material fact which preclude summary judgment.
Summary judgments are reviewed de novo on appeal, with the
reviewing court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate; whether
there is any genuine issue of material fact, and whether the movant is
entitled to judgment as a matter of law. Power Marketing Direct, Inc.
v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, 669; Smith v. Our Lady
of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750.
A motion for summary judgment will be granted “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
material fact, and that mover is entitled to judgment as a matter of law.”
La.Code Civ. Proc. art. 966(B). This article was amended in 1996 to
provide that “summary judgment procedure is designed to secure the
just, speedy, and inexpensive determination of every action ... The
procedure is favored and shall be construed to accomplish these ends.”
La.Code Civ. Proc. art. 966(A)(2).
La. Safety Ass’n of Timbermen Self-Insurers Fund v. La. Ins. Guar. Ass’n, 09-23, p.
5 (La. 6/26/09), 17 So.3d 350, 353-54.
“Once the motion for summary judgment has been properly supported by the
moving party, the failure of the non-moving party to produce evidence of a material
factual dispute mandates the granting of the motion.” Id. at 354.
STATUTORY EMPLOYEE
The Defendants have alleged that Ms. Tilley and Mr. Choat were statutory
employees of Boise at the time of the accident entitling the Defendants to immunity
from tort suit. An employer bears the burden of proving entitlement to tort immunity
as established by La.R.S. 23:1032. Ernest v. Petroleum Serv. Corp., 02-2482
(La.App. 1 Cir. 11/19/03), 868 So.2d 96. Boise and Wallace argue that there was a
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contract in place at the time of Ms. Tilley’s and Mr. Choat’s accident which grants
Bosie statutory employer status.
Louisiana Revised Statutes 23:1061 (emphasis supplied) establishes the
workers’ compensation responsibility of a principal under the statutory employer
doctrine and provides:
A. (1) Subject to the provisions of Paragraphs (2) and (3) of this
Subsection, when 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 and 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; and where
compensation is claimed from, or proceedings are taken against, the
principal, then, in the application of this Chapter reference to the
principal shall be substituted for reference to the employer, except that
the amount of compensation shall be calculated with reference to the
earnings of the employee under the employer by whom he is
immediately employed. For purposes of this Section, 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 principals goods, products, or services.
(2) A statutory employer relationship shall exist whenever the
services or work provided by the immediate employer is contemplated
by or included in a contract between the principal and any person or
entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this
Subsection, a statutory employer relationship shall not exist between
the principal and the contractors employees, whether they are direct
employees or statutory 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 a statutory employer. When the contract recognizes a
statutory employer relationship, there shall be a rebuttable
presumption of a statutory employer relationship between the
principal and the contractor’s employees, whether direct or
statutory employees. 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.
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B. When the principal is liable to pay compensation under this
Section, he shall be entitled to indemnity from any person who
independently of this Section would have been liable to pay
compensation to the employee or his dependent, and shall have a cause
of action therefor.
When the legislature amended La.R.S. 23:1061 in 1997, it added a rebuttable
presumption of a statutory employer relationship between the principal and the
contractor’s employees when a written contract exists between a principal and a
contractor that recognizes the principal as a statutory employer. 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 its goods, products, or services. See
footnote 2 in Dean v. Southmark Const., 03-1051 (La. 7/6/04), 879 So.2d 112.
The record establishes that there is a contract between Boise and BE&K which
specifically provides for the statutory employee status of BE&K employees while
working at the Boise plant. The terms of the contract provided that the contract
expired in five years, or on June 2, 2007. This accident occurred on June 8, 2007.
The terms of the contract further provided in Section 22.0 that any amendments to the
contract were not valid unless agreed to by the parties in writing and signed by their
authorized representative. Boise and Mr. Wallace did introduce into the record an
addendum to the contract which provided that the term expired on June 2, 2008. The
addendum is signed by the financial affairs manager for Boise and dated May 31,
2007. The addendum is also signed by the vice president of BE&K but is not dated
in the blank provided for a date for his signature.
An affidavit from Larry Cook, the purchasing agent for Boise was attached to
the Defendants’ motion for summary judgment. Mr. Cook attests that the contract
between Boise and BE&K was in effect on June 8, 2007. However, Mr. Cook is not
a signatory to the contract nor does he explain how he personally knows that the
contract was in effect.
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In reviewing the personal knowledge requirement of affidavits, this court
stated:
Personal knowledge means something the witness
actually saw or heard, as distinguished from what he
learned from some other person or source. The purpose of
the requirement of “personal knowledge” is to limit the
affidavit to facts which the affiant saw, heard, or perceived
with his own senses. Portions of affidavits not based on
personal knowledge of the affiant should not be considered
by the trial court in deciding a motion for summary
judgment.
Where business records are concerned, as in the
present case, the courts have deemed La.C.C.P. art. 967
satisfied when the affiant is qualified to identify the
business records as such. The affiant has not been required
to show that he personally prepared the business records,
or that he had direct, independent, first hand knowledge of
the contents thereof.
Denbury Onshore, L.L.C. v. Pucheu, 08-1210, p. 18 (La.App. 3 Cir. 3/11/09), 6 So.3d
386, 398 (quoting Hibernia Nat’l Bank v. Rivera, 07-962, pp. 8-9 (La.App. 5 Cir.
9/30/08), 996 So.2d 534, 539-40 (citations omitted)).
Nothing in Mr. Cook’s affidavit indicates that he had anything to do with the
preparation of the addendum or that he saw the parties sign it. He simply makes a
conclusionary statement that the contract was in effect on the date of the accident.
Therefore, we find that this affidavit is insufficient to establish that the contract was
in effect on the date of the accident.
While Boise’s representative indicates that he signed the addendum on May 31,
2007, BE&K’s representative did not date his signature even though a specific blank
was provided for the date. For all we can tell, he may have signed the addendum after
the accident, in which case the contract would have expired and there would be no
contract in place recognizing the statutory employer relationship. In that situation,
Boise and Mr. Wallace would not be entitled to tort immunity.
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Therefore, we find that Boise and Mr. Wallace failed to establish by a
preponderance of the evidence that the addendum was signed by BE&K before the
accident. There is a genuine issue of material fact precluding summary judgment.
We, therefore, reverse the judgments of the lower court granting summary judgment
in favor of Boise and Mr. Wallace. The cases are remanded for further proceedings.
Costs of these appeals are accessed to Boise Cascade Corporation and Dennis
Wallace.
REVERSED AND REMANDED.
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