Damon J. Nelson v. Texaco, Inc.
381 So.3d 115
La. Ct. App.2024Background
- Damon J. Nelson sued Texaco, Inc. and others, alleging he contracted mesothelioma from asbestos exposure while employed by Fleming Construction between 2002-2006 and 2015-2022.
- During the first 90 days of Nelson’s employment (Feb 7, 2002 - May 19, 2002), he was hired through a temp agency, Temps Today, Inc., and claimed by Fleming to be a borrowed employee.
- Fleming Construction filed for summary judgment, asserting statutory immunity under Louisiana worker's compensation laws, including for the borrowed employee period.
- The trial court denied Fleming Construction’s summary judgment on the borrowed employee defense, holding the defense was not specifically pleaded as required for affirmative defenses.
- Fleming sought supervisory review and a stay (which was denied) because trial was scheduled imminently; appellate review ensued on whether the defense was properly pleaded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the borrowed employee defense was waived by not being specifically pleaded as an affirmative defense | Fleming did not specifically plead the “borrowed employee” defense, so it is waived | Fleming’s answer referenced statutory employer and worker's comp, thus preserving the defense | The court held Fleming sufficiently pleaded the defense; error to deny summary judgment on that ground. |
| Whether the merits of the borrowed employee defense should have been considered | Not addressed (focus was on procedural grounds) | The trial court must consider the borrowed employee defense merits | Remanded for trial court to consider the defense before trial |
| Whether a stay of the proceedings was warranted | Implied: no grounds for stay | Requested stay to await appellate decision | Stay denied |
| Whether referencing worker's compensation in pleadings sufficiently preserves related defenses | Referencing only “worker's compensation” insufficient | Reference includes borrowed employee by implication | Referencing worker’s compensation is sufficient to preserve the defense |
Key Cases Cited
- Brown v. Adair, 846 So.2d 687 (La. 2003) (Workers’ comp tort immunity is an affirmative defense)
- Conner v. Am. Marine Corp., 684 So.2d 550 (La. App. 4th Cir. 1996) (Borrowed employee’s exclusive remedy in worker’s comp)
- Espadron v. Baker-Hughes, Inc., 714 So.2d 60 (La. App. 4th Cir. 1998) (Issues of employment/tort immunity can be raised even without using specific terms in answer)
- Biglane v. Bd. of Commissioners, Fifth Louisiana Levee Dist., 256 So.3d 1052 (La. App. 3d Cir. 2017) (Asserting worker’s comp defense can encompass borrowed employee)
- Fishbein v. State ex rel. LSU Health Sciences Ctr., 960 So.2d 67 (La. App. 1st Cir. 2007) (No unfair surprise where a defense arises under the law plaintiff sues upon)