Pickering v. Hercules Inc.Pickering v. Hercules Inc.
Jones, Tete, etc., Edward J. Fonti, Lake Charles, Stafford, Stewart & Potter, Larry A. Stewart, Alexandria, Mouton, Roy, etc., Kenneth M. Henke, LaFayette, for defendants-appellees.
Before KNOLL, KING and BRUNSON,* JJ.
BRUNSON, Judge.
The issue presented on this appeal is whether the trial court erred in granting defendant, Hercules Incorporated‘s Motion for Summary Judgment.
Plaintiff brought a suit in negligence against multiple defendants, including Hercules Incorporated, and in strict liability against Hercules Incorporated, seeking jury trial as to all. The suit arose from injuries allegedly suffered by plaintiff, Ross Earl Pickering, during the operation of a prehauler, a piece of heavy equipment lеased by plaintiff from defendant, Hercules Incorporated, and utilized by plaintiff in harvesting tree stumps for delivery to defendant. The defendant extracted therefrom turpentine and other by-products. Plaintiff alleges certain negligence against the dеfendants and, additionally, alleges defects in the equipment leased from Hercules Incorporated, which plaintiff contends results in strict liability as against Hercules Incorporated.
Through dismissal upon motion and/or settlement, all defendants have been dismissed except Hercules Incorporated.
Hercules Incorporated filed a Motion for Summary Judgment on its defense that Louisiana Workmen‘s Compensation Law
SPECIFICATIONS OF ERROR
(1) The trial court erred in granting a summary judgment when there were genuine issues of material fact to be resolved, particularly the interpretation of a cоntract between the parties.
(2) The trial court erred in failing to grant, or even consider, the motion for summary judgment filed by plaintiffs seeking a declaration that they could proceed in tort against defendant and were not limited to an action in worker‘s compensation.
(3) The trial court erred in failing to hold that plaintiff Pickering was a working independent contractor who could, and did, opt out of compensation coverage by Hercules, thus preserving his tort remedy against Hercules.
(4) The trial court erred in failing to hold that Hercules violated
La.R.S. 23:1163 by forcing Pickering to pay for his own compensation coverage.(5) The trial court erred in failing to hold that Hercules is estopped to raise the defense of tort immunity under the circumstances рresent in this case.
Hercules has also filed a motion to strike certain documents in the record and reference to them in plaintiff‘s brief, contending that these documents were not introduced into evidence, and are therefore not prоperly before this court for review.
The trial court found the facts to be as follows:
“Pickering was hired by Hercules and was designated as an independent contractor to produce stumps from areas designated by Hercules. In order to increase production Pickering arranged to leаse from Hercules a machine known as Prehauler. All work by Pickering was done for Hercules and the producing or harvesting of stumps was part of the regular business and occupation of Hercules. Pickering as operator of the prehauler wаs doing manual labor. Pickering was working exclusively for Hercules. Hercules obtained the stumps or trees and harvested the stump wood either through its employees who were paid hourly wages or independent contractors who were paid on thе basis of tonnage harvested.”
The quintessential issues of this appeal are whether one who is an independent contractor, but who spent a substantial portion of his time in manual labor, performing work in furtherance of the work being done pursuant to the contract, is limited to the remedies provided by the Louisiana Workmen‘s Compensation Law, such that he can be precluded from tort recovery as against the party with whom he contracts, and, if so, whether he can, and did, opt out of such coverage, and/or whether there was a violation of
Considering the provisions of
“‘Independent Contractor’ means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or аs a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the worktime of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly
covered by the provisions of this Chapter.”
It therefore presents the standards by which the coverage of the Louisiana Workmen‘s Compensation Statute, as applied to plaintiff, should be determined. In this connection, the factual record herein fully supports the trial court‘s findings of fact that plaintiff was doing manual labor in connection with, and during his worktime. Further, a stipulation to such effect is rеferred to on Page 187 of the record, although such stipulation is not itself found in the record. The factual basis therefor is well supported in the depositions of appellant, Ross Earl Pickering, and of Ray Brant.
There is, however, no conclusive showing in the record that employees of Hercules (as opposed to independent contractors) customarily performed the same work that plaintiff was engaged in at the time of injury. Holmes v. St. Charles General Hospital, 465 So.2d 117 (La.App. 4th Cir.1985). While in Holmes v. St. Charles General Hospital, supra, the plaintiff was an employee of an independent сontractor, the rule as to independent contractors is the same under Lushute v. Diesi, 354 So.2d 179 (La.1978).1 There is therefore present here an unresolved question of material fact.
Where the independent contractor is, in fact, entitled to the compensation under this act, his remedy against the principal is limited by
Therefore, where the rule applies, unless the plaintiff has opted out of such cоverage, or the exclusivity of the act is to be denied on the basis of either a violation of
Defendant-appellee contends that the issues of whether the plaintiff was entitled to opt out and, if so, whether he had effectively done so (plaintiff‘s Specification of Error No. 3 and Issues Presented for Review Nos. 3 and 4) are founded upon documents not in evidence and, therefore, not before the court.
In suppоrt of this position, defendant-appellee cites case authority for the proposition that nothing (such as documents and affidavits) may be considered by the court unless the same has been “introduced into evidence“. However, when reviewing the authorities so cited by defendant-appellee, it is noteworthy that only Larkin v. First of Georgia Underwriters, 466 So.2d 655 (La.App. 5th Cir.1985) deals with a summary judgment as opposed to a trial on the merits or a merit-type hearing.
Even with respect to Larkin v. First Georgia (although correct on its decision since the facts involved a subsequently profferеd offering) it should be noted that the court rendering that decision cited as its authority, the case of Crader v. Casualty Reciprocal Exchange, 417 So.2d 101 (La.App. 3rd Cir.1982). However, when Crader v. Casualty Reciprocal Exchange is examined, it is seen that such case itself is a merit trial situation, not a summary judgment. The other cases cited on this point,2 involved merit trials not summary judgments which though stating correctly the rule to be applied in merit trial situations are not dispositive of the rule to be applied in the summary judgment situation. In connection with summary judgments,
It should be noted, too, that the Workmen‘s Compеnsation Act,
Therefore a proper test of whether a document should be considered in determining a motion for summary judgment is whether such document has been filed in the record. By that test, the document appearing at page 159 of the appellate record (having been filed as an attachment to a motion in limine, filed by plaintiff in the рroceeding prior to the rendition of the summary judgment) should be considered in connection with the court‘s review of the summary judgment granted by the court below. As to this document, the motion to strike is denied. However, as to those documents and exhibit items apрearing between pages 203 and 205 of the appellate record, and the depositions of Martin Clapp, the same were not on file at the time of the rendition of summary judgment and, accordingly, they may not be considered by this court. Therefore, the motion to strike is granted as to such documents.
Considering then the plaintiff-appellant‘s contention that plaintiff had opted out of Workmen‘s Compensation coverage under
With respect to plaintiff-appellant‘s Specification of Error No. 4 that Hercules violated
“Nothing herein shall be construed tо prevent any employer from carrying his own insurance towards his own employees....”
When this part of the section is compared to the provisions of the second paragraph of the Pickering-Hercules agreement, to-wit:
“Producer is engаged or may in the future be engaged in the harvesting and sale of stumpwood to Hercules Incorporated, and has elected to have workmen‘s compensation insurance covering all operations and all of the employees аnd/or Sub-Producers who may be engaged by
Producer in said work.” (Underscoring added.)
it quite clearly appears that such agreement is within the permissibility of the section and, thus, cannot be said to violate it.
Therefore, although permitted by statute, whether such arrangements factually operated to force plaintiff to pay for his own compensation coverage is a question of fact which is both material and unresolved here. Under such circumstances, summary judgment is not warranted.
For the reasons assigned, we hold that summary judgment was imprоvidently granted.
The judgment of the District Court is reversed and the case is remanded to the District Court for further proceedings consistent herewith. Costs of this appeal are assessed against the appellees.
REVERSED AND REMANDED.