Bennett FLEMING v. JE MERIT CONSTRUCTORS, INC., Performance Contractors, Inc., and The Dow Chemical Company.
No. 2007 CA 0926.
Court of Appeal of Louisiana, First Circuit.
March 19, 2008.
985 So. 2d 141
Before PARRO, KUHN, and DOWNING, JJ.
David M. Bienvenu, Jr., Todd S. Manuel, John Allain Viator, Jennifer M. Sigler, Baton Rouge, LA, and F. Barry Marionneaux, Plaquemine, LA, for Defendant/Appellee, The Dow Chemical Company.
John J. Rabalais, Heather Whittington Blackburn, Covington, LA, for Defendant/Appellee, JE Merit Constructors, Inc.
R. Scott Jenkins, Vanessa W. Servat, New Orleans, LA, for Defendant/Appellee, Performance Contractors, Inc.
Plaintiff appeals a summary judgment dismissing his tort claims against The Dow Chemical Company (Dow), based upon a finding that Dow was plaintiff‘s statutory employer. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Dow entered into an “Agreement for Services” with HBT, Inc. (HBT), effective December 26, 1994, whereby HBT would perform contracting services for Dow as requested “from time to time.” A copy of the pertinent contract contains the handwritten notation “14375” in the upper right-hand corner of the first pagе. The contract contained a provision stating that any and all amendments to the agreement would be in writing, signed by both parties, and contain the statement: “[I]t is our intent to modify the December 26, 1994 contract between The Dow Chemical Company and HBT, Inc.” The contract was signed by a Dow employee and by HBT‘s president, Eric L. Hebert.
At the time the parties’ agreement was confected, Louisiana law did not require the existence of a written contract between a principal and a contractor to establish a statutory employer relationship. However, in 1997, the Louisiana legislature amended
Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor‘s employees . . . unless there is a written contract between the principal and a contractor . . . which recognizes the principal as a statutory employer.
(Underlining added.) See 1997 La. Acts, No. 315, § 1.
Consequently, on October 20, 1999, Dow sent a letter to HBT regarding the foregoing change in the law. The letter, typed on Dow letterhead, specifically referenced “Contract 14845, 14607, 14375, 14490” and provided, in part, as follows:
On June 18, 1997, Governor Mike Foster signed SB922, a bill introduced in the 1997 Regular Session of the Louisiana Legislature. SB922 addresses the concept of “statutory employment“. . . . It basically grants immunity from suit in tort to the principal employer (ie., Dow) in exchange for the principal being liаble for worker‘s compensation payments to a “statutory employee” should their direct employer for some reason not be able to pay.
The new law requires that the contract between the direct employer and the principal state that the principal intends that the employee be its statutory employee before the principal can assert the immunity. This immunity will then be extended if the work the employee is engaged in at the time of the injury is “part of the principal‘s trade, business, or occupation” and “is an integral part of or essential to the ability of the principal to generate that individual principal‘s gоods, products or services.”
We are in the process of amending all of our contracts which provide any labor services here in Louisiana to include the intention of Dow to continue to be the statutory employer of the contractor‘s employee per the change in the new law requiring this written provision.
Thеrefore, pursuant to the terms and conditions of our original Agreement, we hereby express our intent to amend the initial contract to include the following:
Dow (as principal employer) and the Contractor (as direct employer) mutually agree that it is their intention to recognize Dow as the statutory
employer of thе Contractor‘s employees, whether direct employees or statutory employees of the Contractor, while Contractor‘s employees are providing work and/or services to Dow under this Agreement. This amendment is effective as of the date of the contract currently in place. All other terms and conditiоns remain the same.
If this is your understanding of our Agreement, so indicate your acceptance by signing and returning one copy of this amendment within ten (10) business days of the date hereof.
The Dow Chemical Company
Louisiana Operations
Daniel Bellard
Purchasing Department
Dow‘s letter seeking to amend the original contract to expressly recognize its status as a statutory employer (statutory employer letter) was accepted and agreed to by HBT with the signature of its president, Eric L. Hebert, on October 20, 1999.
On May 13, 2004, Bennett Fleming, an employee of HBT, was operating a cherry picker at the Dow facility in Plaquemine, Louisiana, when he allegedly sustained injuries as a result of a chemical release occurring on the premises. Mr. Fleming subsequently filed suit against several defendants, including Dow. In answering Mr. Fleming‘s petition, Dow presented various affirmative defenses, including its assertion that it was Mr. Fleming‘s statutory employer. Accordingly, Dow argued that it could not be liable in tort and that workers’ compensation was Mr. Fleming‘s sole remedy.
Thereafter, Dow filed a motion for summary judgment seeking the dismissal of Mr. Fleming‘s tort claims against it. Appended to the motion was the affidavit of Dow‘s Market Supply Manager, Brian Carver, attesting that the December 1994 “Agreement for Services” and the October 1999 statutory employer letter amending that agreement constituted the contract in effect between HBT and Dow on the date of Mr. Fleming‘s alleged exposure.1 He further stated that it was the “intent of Dow . . . to invoke the provisions of
Dow also submitted the affidavit of its Maintenance Process Leader, Larry Rushing, the individual responsible for planning, coordinating, and managing maintenance activities, including the comprehensive inspection and maintenance2 of Dow‘s Glycol II Plant where Mr. Fleming was working at the time of the incident. According to Mr. Rushing, both the inspection and maintenance of the Glycol II Plant and the activities of Mr. Fleming in operating the cherry picker to move heavy equipment so that the inspection and maintenance could be performed were integral activities essential to Dow‘s ability to generate its goods, products, or services.
Mr. Fleming responded to Dow‘s motion by filing an opposition memorandum; however, he failed to submit any supporting affidavits or deposition testimоny. Following a hearing on the motion, the trial court granted summary judgment in favor of Dow. This appeal by Mr. Fleming followed.
Summary Judgment
Appellate courts review summary judgments de novo under the same criteria that govern the trial court‘s determination of whether a summary judgment is appropriate. Duplantis v. Dillard‘s Dept. Store, 2002-0852, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 2003-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogаtories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.
The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party‘s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party‘s claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burdеn of proof at trial; failure to do so shows there is no genuine issue of material fact.
Statutory Employer
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
The Act applies both to a direct employer/employee relationship, as well as to a statutory employer/employee relationship. Specifically,
The doctrine of “statutory employer” codified in
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.4/11/94), 635 So.2d 188, 191. Furthermore, immunity
DISCUSSION
In the instant case, Mr. Fleming asserts the trial court erred in finding that the requisite written contract recognizing Dow‘s status as a statutory employer existed between Dow and HBT at the time of his alleged exposure. Specifically, Mr. Fleming argues that the December 1994 “Agreemеnt for Services” between Dow and HBT does not recognize Dow as a statutory employer. He further asserts that Dow‘s statutory employer letter dated October 20, 1999 cannot be considered a proper amendment to the parties’ “Agreement for Services” because it failed to satisfy that contract‘s express requirements pertaining to amendments. Moreover, he argues that parol evidence is inadmissible to vary the terms of the original “Agreement for Services” to add recognition of Dow as the statutory employer.
Mr. Fleming‘s assertion that contracts have the effect of law for the parties is certainly true. However, it is equally truе that a contract may be modified by the mutual consent of the parties. Cajun Constructors, Inc. v. Fleming Const. Co., Inc., 2005-2003, p. 8 (La.App. 1 Cir. 11/15/06), 951 So.2d 208, 214, writ denied, 2007-0420 (La.4/5/07), 954 So.2d 146. Hence, written contracts may be modified by oral contracts or by the conduct of the parties, even when the written contract contains the provision that it must be modified in writing. Id.; Newman Marchive Partnership, Inc. v. City of Shreveport, 41,460, pp. 10-11 (La.App. 2 Cir. 11/1/06), 944 So.2d 703, 710, writs denied, 2007-0061, 2007-0099 (La.3/9/07), 949 So.2d 448 and 452. Modification of a written agreеment can be presumed by silence, inaction, or implication. Cajun Constructors, 2005-2003 at p. 8, 951 So.2d at 214; Aqua Pool Renovations, Inc. v. Paradise Manor Community Club, Inc., 04-119, p. 5 (La.App. 5 Cir. 7/27/04), 880 So.2d 875, 880.
Courts are obligated to give legal effect to contracts according to the common intent of the parties. See
Even so, Mr. Fleming contends that there is no way to connect the statutory employer letter to any particular contract, including the “Agreement for Services” originally entered into by Dow and HBT. Such a contention is undermined by the inclusive language of the statutory employer letter, its specific reference to the hand-written number marking the original contract, and the affidavit of Dow‘s Market Supply Manager Brian Carver, stating that the combined documents formed the contract between Dow and HBT.
However, even if the statutory employer lеtter did not serve to amend the original “Agreement for Services,” Dow insists that the statutory employer letter stands on its own as a contract between itself and HBT sufficient to satisfy the requirements of
After a thorough review of the record, we find Mr. Fleming‘s argumеnt to be without merit. Regardless of whether
Here, the typewritten statutory employer letter concluded, as follows:
The Dow Chemical Company
Louisiana Operations
Daniel Bellard
Purchasing Department
No one disputes Mr. Bellard‘s authority to “sign” the letter, and it is аbundantly clear that the above was intended to constitute a signature. We note that the document only provided a signature space for HBT‘s representative, and there is no indication on the document itself that a Dow representative was expected to sign the document in the same manner as HBT‘s representative. The letter was prepared under Dow‘s direction and reflected Dow‘s clear intent to be bound by the agreement once HBT assented to it. See
Having found the existence of a written contract as required by
DECREE
For the foregoing reasons, the summary judgment granted in favor of Dow hereby is affirmed. Bennett Fleming is assessed with the costs of this appeal.
AFFIRMED.